Liang v. Canada (Attorney General)

Liang v. Canada (Attorney General)

The Whaling definition of 'punishment' applies to s.11(i): s.10(1) of the AEPA retrospectively increased the risk and period of incarceration for offences committed before March 28, 2011 and thus varied the punishment between commission and sentencing; that variation breaches s.11(i) and is not justified under s.1,...

Source-derived case information.

Citation
2014 BCCA 190
Parties
Respondent (petitioner): William Wei Lin Liang; Respondent (petitioner): Leslie John McCulloch; Appellant (respondent): Attorney General of Canada; Appellant (respondent): Institutional Head of Ferndale Institution
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
20 May 2014
Procedural Posture
Charter Challenge to Retrospective Repeal of Accelerated Parole Review / Appeal From Chambers Judge Ruling in British Columbia Court of Appeal
Outcome
Appeal dismissed. Decision below affirmed: s.10(1) of the Abolition of Early Parole Act violates Charter s.11(i) and is of no force and effect for offenders who committed offences before March 28, 2011.
Legal Topics
Charter S.11(i) Lesser Punishment, Retrospectivity, Parole Eligibility and APR, Double Jeopardy S.11(h) Precedent, Oakes S.1 Justification
Source Language
english
Constitutional Law Criminal Law Corrections Law Charter S.11(i) Lesser Punishment Retrospectivity Parole Eligibility and APR Double Jeopardy S.11(h) Precedent Oakes S.1 Justification

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Parties

William Wei Lin Liang

Respondent (petitioner)

Leslie John McCulloch

Respondent (petitioner)

Attorney General of Canada

Appellant (respondent)

Institutional Head of Ferndale Institution

Appellant (respondent)

Procedural Posture

Charter Challenge to Retrospective Repeal of Accelerated Parole Review / Appeal From Chambers Judge Ruling in British Columbia Court of Appeal

Legal Issues

  1. 1 Whether s.10(1) of the Abolition of Early Parole Act (AEPA) constitutes 'punishment' for the purposes of Charter s.11(i) when offences were committed before AEPA came into force
  2. 2 Whether the definition and reasoning in Canada (Attorney General) v. Whaling applies to s.11(i)
  3. 3 Whether any s.11(i) violation is justified under s.1 Oakes analysis

Ratio Decidendi

The Whaling definition of 'punishment' applies to s.11(i): s.10(1) of the AEPA retrospectively increased the risk and period of incarceration for offences committed before March 28, 2011 and thus varied the punishment between commission and sentencing; that variation breaches s.11(i) and is not justified under s.1, so s.10(1) is of no force and effect for those offenders.

Court Disposition

Appeal dismissed. Decision below affirmed: s.10(1) of the Abolition of Early Parole Act violates Charter s.11(i) and is of no force and effect for offenders who committed offences before March 28, 2011.

Orders

  • Affirmed chambers judge's remedy that s.10(1) of the AEPA is of no force and effect as to offenders who committed offences prior to March 28, 2011
  • Sections 125, 126, 126.1 and, by implication, 119.1 of the Corrections and Conditional Release Act continue to apply to those offenders