In Canada v. Whaling, 2022 FCA 37, the Crown appealed the decision of the Federal Court in which the Court declined to include the Crown’s proposed common question and preliminary questions of law in its certification order, which questions the Crown argued were required to satisfy the commonality and preferability criteria of certification.
The Federal Court declined to include the preliminary questions of law on the basis that they were hypothetical questions and answering them would not assist in determining the Crown’s potential liability. The Court declined to include the Crown’s proposed common question on the basis that it would not be determinative of the cases or advance the cases in a significant way.
The proposed representative plaintiffs were both former federal inmates who were first time non-violent offenders and, as such, were eligible for accelerated parole review when they committed their offences and until the coming into force of the Abolition of Early Parole Act, which abolished the availability of accelerated parole review. The retrospective application of the Act was found to infringe the Charter rights of the proposed representative plaintiffs, specifically the right to be free of double jeopardy pursuant to paragraph 11(h) of the Charter and the right to the benefit of the lower punishment where the punishment has been varied between the time the offence was committed and the time of sentencing, pursuant to paragraph 11(i) of the Charter.
In the class proceedings, the representative plaintiffs sought damages pursuant to s. 24(1) of the Charter for the violation of their Charter rights, claiming that the Crown knew that the Act infringed the Charter and passed it anyway. The representative plaintiffs claim the Crown has demonstrated bad faith such that the plaintiff classes are entitled to damages.
With respect to the preliminary questions of law, the Court of Appeal found that they were not so much hypothetical questions, as was determined by the Federal Court, as they were premature. The Court of Appeal found that the questions would be appropriate only once the appropriate evidentiary foundation had been laid. The questions were found to be legitimate, but not appropriate as preliminary questions of law.
With respect to the common question proposed by the Crown, the Court of Appeal agreed with the Federal Court’s assessment that it did not add anything to the common question that was certified by the Federal Court.