Court of Appeal Decision of the Week

Applying the Abolition of Early Parole Act (No Pressing/Substantial Reason Re: Retrospectivity)

Case: Canada (Attorney General) v. Lewis, 2015 ONCA 379 

Keywords: Charter; Sections 1, 11(i); Meaning of ‘Punishment’; Abolition of Early Parole Act; Retrospective Application; Pressing and Substantial Objective

Synopsis:

On March 28, 2011, Section 10(1) of the Abolition of Early Parole Act S.C. 2011, c. 11 put an end to ‘accelerated parole review’ under the Corrections and Conditional Release Act S.C. 1992, c. 20.

Section 10(1) provides as follows:

Subject to subsection (2), the accelerated parole review process set out in sections 125 to 126.1 of the Corrections and Conditional Release Act, as those sections read on the day before the day on which section 5 comes into force, does not apply, as of that day, to offenders who were sentenced, committed or transferred to penitentiary, whether the sentencing, committal or transfer occurs before, on or after the day of that coming into force.

For the respondents, Samantha Claire Lewis, Souphin Inlakhana, Juliet Ifeika, Rosa Mukandori, Nazma Murtaza, Debbie Craddock, Desiree Solleveld, Patricia Longley, Candace Branche and Carol Williams this meant they would no longer be entitled to day parole after serving the greater of either six months or one sixth of their sentences.

All except Ms. Craddock committed their offences before the Abolition of Early Parole Act came into effect and were sentenced afterwards.

Consider the text of Section 11(i):

If found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

The respondents brought an application to Superior Court, on a pure question of law, for a declaration that they be made eligible for ‘accelerated parole review’ – to avoid the retrospective effect of Section 10(1). The question was framed as follows: has the respondents’ punishment been varied by the elimination of ‘accelerated parole review’ within the meaning of Section 11(i) of the Charter? The answer from the application judge was ‘yes’. Juriansz J.A., writing for the Ontario Court of Appeal, agreed.

Importance:

The Ontario Court of Appeal agreed that the denial of day parole constituted ‘punishment’ within the meaning of Section 11(i) of the Charter. Why? The Court relied upon Canada (Attorney General) v Whaling, 2014 SCC 20 (CanLII), [2014] 1 S.C.R. 392 and Liang v. Canada (Attorney General), 2014 BCCA 190 (CanLII), 311 C.C.C. (3d) 159, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 298.

The respondents characterized retrospective application of the Abolition of Early Parole Act as ‘punishment’. At the time these offences occurred, ‘accelerated parole review’ had not yet been abolished; rather these provisions kicked in before sentencing took place. For all but one of the respondents (Ms. Craddock was released under the standard parole regime two days after the application judge’s decision), this meant that, in effect, punishment for the offences had been ‘varied’ between the time of commission and the time of sentencing. As a consequence, the remaining group was entitled to the benefit of the lesser punishment.

The Attorney General argued that this approach conflated sentencing and parole, failing to recognize the division between Criminal Code parole eligibility and the parole regime as found in the Corrections and Conditional Release Act. Changes to the conditions of a sentence do not alter the sentence itself – for the purpose of Section 11(i) it is the ‘retrospective frustration of the expectation of liberty’ at the time of the sentencing hearing that constitutes punishment.

In other words, parole eligibility is to be considered separate and distinct from the sentence itself. Since it does not occur at the time of sentencing, it does not constitute ‘punishment’ within the meaning of Section 11(i).

Juriansz J.A. discarded the Attorney General’s arguments and adopted the more generous reasoning of both the British Columbia Court of Appeal and the Supreme Court of Canada. In Whaling, ‘punishment’ was defined broadly as ‘the retrospective frustration of an expectation of liberty’ and this specifically included an extension of prison time.

Significantly, Whaling was a Section 11(h) case in which the Supreme Court of Canada was asked to consider whether automatically lengthening the incarceration period under Section 10(1) of the Abolition of Early Parole Act constituted additional punishment. There, the Court was faced with a situation in which the act applied retrospectively to vary a sentence that had already been given. They found that the changes ran afoul of Section 11(h) and would also conflict with Section 11(i).

For MacKenzie J.A. in Liang, the Supreme Court’s definition of ‘punishment’ is an objective standard that may be used to determine whether punishment has, in fact, increased (whether it has been ‘varied’ within the meaning of Section 11(i)). Extended incarceration is an ‘objectively ascertainable effect’ of changes to the parole system under the Abolition of Early Parole Act – crucially, the British Columbia Court of Appeal found that the change occurred between the time of the offences and the time of sentencing. Since the abolition of ‘accelerated parole review’ constituted ‘punishment’ (substantially increased the risk of additional incarceration), the offenders were entitled to the ‘lesser’ punishment under Section 11(i). The Ontario Court of Appeal found the reasoning in Liang to be both persuasive and authoritative.

Section 1 of the Charter

The Attorney General failed to establish that “…retrospective application of the Abolition of Early Parole Act serves a pressing and substantial government objective, is rationally connected to that objective, minimally impairs the Charter right, and that its salutary benefits outweigh its detrimental effects.”

For Juriansz J.A., the government provided no explanation to justify retrospective repeal of ‘accelerated parole review’. Quoting Whaling, the Ontario Court of Appeal found that the retroactive application of the Abolition of Early Parole Act conflicted with both Section 11(h) and (i) of the Charter.

Offenders who were convicted and sentenced after the enactment of the Abolition of Early Parole Act are entitled to the previous ‘accelerated parole review’ regime.

Concluding Thoughts:

Whaling has been interpreted by both the Ontario Court of Appeal and the British Columbia Court of Appeal to challenge the retroactivity of the Abolition of Early Parole Act in cases where the act came into force between the date the offences took place and the date that sentencing took place. For future reference, should the government intend to extend periods of incarceration, it would be prudent to justify retroactivity – to supply some compelling reason or else abandon the project altogether.

Counsel for the Appellant: Michael Sims and Jim Kapches (Justice Canada, Toronto)

Counsel for the Respondents (Samantha Claire Lewis, Souphin Inlakhana, Juliet Ifeika, Rosa Mukandori, Nazma Murtaza, Debbie Craddock, Desiree Solleveld, Patricia Longley, Candace Branche and Carol Williams): Brian Callender (Callender Law Office, Kingston)

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Posted: Wednesday, July 22, 2015