Canada (Attorney General) v. Lewis

Canada (Attorney General) v. Lewis Collection Decisions of the Court of Appeal Date 2015-05-29 Neutral citation 2015 ONCA 379 Docket numbers C59665 Judges Simmons, Janet M.; Juriansz, Russell G.; van Rensburg, Katherine Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Canada (Attorney General) v. Lewis, 2015 ONCA 379 DATE: 20150529 DOCKET: C59665 Simmons, Juriansz and van Rensburg JJ.A. BETWEEN Attorney General of Canada Appellant and Samantha Claire Lewis, Souphin Inlakhana, Juliet Ifeika, Rosa Mukandori, Nazma Murtaza, Debbie Craddock, Desiree Solleveld, Patricia Longley, Candace Branche and Carol Williams Respondents Michael Sims and Jim Kapches, for the appellant Brian A. Callender, for the respondents Heard: March 10, 2015 On appeal from the order of Justice P.B. Hambly of the Superior Court of Justice, dated October 3, 2014, with reasons reported at 2014 ONSC 6394. Juriansz J.A.: [1] This appeal raises a single question of law: are offenders who committed offences before, but were convicted and sentenced after, the enactment of the Abolition of Early Parole Act, S.C. 2011, c. 11 (“AEPA”) entitled to the accelerated parole review (“APR”) regime previously in place under the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”) by virtue of s. 11(i) of the Charter? [2] Prior to March 28, 2011, ss. 119.1 and 125-126.1 of the CCRA provided for APR for certain non-violent offenders serving a first sentence of imprisonment in a federal penitentiary. Under the APR regime such offenders were presumptively entitled to day parole after serving the greater of six months or one-sixth of their sentence. Under the standard parole provisions of the CCRA, an offender sentenced to the penitentiary would be eligible for day parole six months before the full parole eligibility date. The APR regime also was less demanding procedurally than the standard parole procedure. These differences do not need to be discussed separately as the respondents’ application claimed that the denial of eligibility to the entire APR regime infringed their s. 11(i) rights, and the appeal was argued on that basis. [3] The provisions of the CCRA that provided for APR were repealed with the coming into force of the AEPA on March 28, 2011, effectively abolishing the accelerated parole regime. Under the CCRA as it now reads, the standard parole provisions apply to all offenders sentenced to a penitentiary. [4] Section 10(1) of the AEPA made the abolition of APR apply retrospectively. Section 10(1) provides: 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. Offenders are not eligible for the APR process even if they were “sentenced, committed or transferred to penitentiary” before the AEPA came into force. [5] The respondents in this appeal are ten women who are serving sentences at the Grand Valley Institution, a federal penitentiary located in the City of Kitchener. They are all non-violent offenders sentenced to a first penitentiary term. [6] With one exception, the respondents committed their offences before the AEPA came into effect and were sentenced afterwards. One respondent, Debbie Craddock, was sentenced for offences committed before and after the repeal of the APR provisions. [7] After the enactment of the AEPA, the respondents, relying on s. 11(i) of the Charter, brought an application in the Superior Court for a declaration that they are eligible for APR at one-sixth of their sentences. [8] Section 11(i) guarantees that any person charged with an offence has the right “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.” [9] Thus, the question before the application judge was whether the respondents’ punishment was varied by the abolition of the APR process. This is a pure question of law. [10] The application judge answered this question in the affirmative. For the reasons that follow, I would agree with this conclusion and dismiss the appeal. A. Discussion Section 10(1) of the AEPA and Section 11(i) of the Charter [11] The application judge’s conclusion that the respondents’ punishment was varied by the abolition of the APR process was dependent upon his finding that the denial of day parole was “punishment” within the meaning of s. 11(i) of the Charter. It followed that the respondents’ punishment was increased between the date of their offences and the date they were sentenced. Consequently, by virtue of s. 11(i), they were entitled to the benefit of the lesser punishment. [12] In arriving at this conclusion, the application judge relied on the Supreme Court’s decision in Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392, at para. 60, for the definition of “punishment” as “the retrospective frustration of an expectation of liberty”. [13] As in this case, Whaling considered the constitutionality of s. 10(1) of the AEPA. However, the situation of the offenders in Whaling was different, and the case involved a different section of the Charter. In Whaling, the offenders had already been sentenced and were serving their sentences in the penitentiary on the date the AEPA came into effect. The Supreme Court concluded that the offenders were entitled to APR because s. 11(h) of the Charter guaranteed that a person “found guilty and punished” for an offence will not be punished for that offence again. The court found that s. 10(1) of the AEPA had the effect of punishing the offenders a second time: by retrospectively imposing a delay in day parole eligibility in relation to offences for which they had already been tried and punished, s. 10(1) effectively extended their incarceration without regard to individual circumstances: at para. 71. [14] Before this court, the Attorney General submits that the application judge erred in his application of Whaling to the case at bar. [15] The Attorney General contends that the leading authority on the meaning of “punishment” is the Supreme Court’s decision in R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554. In Rodgers, the Supreme Court stated that a consequence of conviction will constitute a “punishment” when it “forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence and the sanction is one imposed in furtherance of the purpose and principles of sentencing”: at para. 63. [16] The Attorney General notes that criminal law distinguishes between sentencing and parole: Whaling, at para. 68. Sentencing courts sanction past criminal acts; whereas the correctional system prepares offenders for reintegration into the community. According to the Attorney General, the applications judge conflated Criminal Code parole eligibility with CCRA parole eligibility, thereby ignoring the distinction between sentencing and parole. [17] The Attorney General also points out that in Whaling, the Supreme Court said, “Changes to the conditions of a sentence, such as eligibility for parole, do not alter the sentence itself”: at para. 1. The changes to parole eligibility addressed in Whaling became punitive only because they applied retrospectively to offenders who had already been sentenced. [18] The Attorney General submits that the date of sentencing is the reference point for determining whether a change to parole eligibility is punitive. The Attorney General relies on Wagner J.’s statement at para. 58 of Whaling that “an offender has an expectation of liberty that is based on the parole system in place at the time of his or her sentencing, and that thwarting that expectation may engage a constitutionally protected liberty interest”. [19] Based on these selective passages from Whaling and Rodgers, the Attorney General submits that it is the retrospective frustration of the expectation of liberty at the time of sentencing that will constitute punishment for the purposes of s. 11(i) of the Charter. [20] These arguments were considered and rejected by the British Columbia Court of Appeal in Liang v. Canada (Attorney General), 2014 BCCA 190, 311 C.C.C. (3d) 159, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 298. As in this case, the respondents in Liang committed offences before, but were sentenced after, the AEPA came into force. [21] In my view, Liang is both persuasive and authoritative. A.W. MacKenzie J.A., writing for the court, reasoned that the “settled expectation of liberty” referred to in Whaling was not “a psychological standard directed at vindicating the subjective expectation of offenders, but instead, an objective standard to determine whether the punishment has in fact increased”: at para. 19. Viewed from that perspective, he concluded that extended incarceration was an “objectively ascertainable effect” of the changes to the parole system between the time of the offences and the time of sentencing: at para. 23. [22] MacKenzie J.A. found that the logic of Whaling could be applied to cases where the offence was committed before, but the offender was sentenced after, the AEPA came into force. He explains at para. 15: It is difficult to avoid a straightforward application of the logic of Whaling to this case, along the following lines. The offences at issue here were committed in 2009 and 2010; the APR system was abolished in 2011; the offenders were sentenced in 2012 and 2013. Thus, at the time of the commission of the offences in question, the law permitted offenders the benefit of the APR system; at the time of sentencing, the APR system was no longer available. If the abolition of APR constitutes "punishment", then the punishment for the offence has been "varied between the time of commission and the time of sentencing", so the offenders are constitutionally entitled to the "benefit of the lesser punishment" (i.e., the parole system in place before the changes, including APR). The Supreme Court of Canada in Whaling found the abolition of the APR system constituted "punishment" because it substantially increased the risk of additional incarceration. The same legislation would have the same effect in this case. Therefore, the offenders are entitled to the "lesser" punishment; that is, to APR. [23] The Supreme Court refused the Attorney General’s application for leave to appeal on January 29, 2015. [24] The Attorney General submits that Liang was wrongly decided, and the Supreme Court’s refusal of the application for leave to appeal should not be regarded as approval of the British Columbia Court of Appeal’s decision. The effect of the Supreme Court’s refusal of leave to appeal aside, the analysis in Liang, which is based on a close and careful reading of Whaling, is persuasive and in my view correct. I agree with the British Columbia Court of Appeal that the AEPA infringes the s. 11(i) rights of non-violent offenders serving a first sentence of imprisonment in a federal penitentiary. The changes to the parole system have the effect of appreciably increasing the amount of time such offenders would be incarcerated in comparison to what they would have expected under the regime in place at the time they committed their offences. This increase in incarceration is a variation in punishment within the meaning of s. 11(i). [25] Moreover, there is good reason to follow the decision of the British Columbia Court of Appeal. The merit of the uniform application of federal statutes in all provinces is obvious. In addition, this court is aware, based on its appeal management, that federal inmates convicted of crimes in Ontario are being housed in federal facilities across the country, including British Columbia. This adds to the importance that there be a uniform approach across the country. The Supreme Court is no doubt aware of this. [26] The Attorney General’s final argument was to point out a wrinkle in the case of Debbie Craddock, one of the ten applicants before the application judge. Unlike the other nine applicants who were sentenced after the repeal of the APR provisions for offences committed before their repeal, Craddock was sentenced to two years, ten months, 13 days’ imprisonment for offences committed both before and after the abolition of APR regime. The application judge granted her eligibility for APR along with the other applicants. [27] By happenstance, just two days after the application judge’s decision, the Parole Board granted Ms. Craddock release under the standard parole regime. Thus, the appeal as it relates to Ms. Craddock is moot. However, the Attorney General submits her case illustrates why focusing on the date the offence was committed cannot be the correct approach to determining whether the variation in parole eligibility is punitive. The Attorney General says that if the application judge’s decision had been carried out, Ms. Craddock would have received accelerated parole for offences committed after repeal of the APR provisions, and this cannot be a correct result. [28] I do not find this argument persuasive. The case of Ms. Craddock illustrates that complexities may arise, but does not undermine the analysis in Liang. The cases of individuals sentenced for some offences committed before the repeal of the APR regime and other offences committed after its repeal will have to be considered on their own facts and in light of the form of the sentence or sentences imposed. The primary sentencing documents relating to Ms. Craddock are not in the record, and since her case is moot, it is not necessary to deal with that complexity in this decision. [29] The decision of this court in R. v. R. S., 2015 ONCA 291 was released after this appeal was argued while it was under reserve. The parties have not had the opportunity to address it, and I confine myself to observing that its reading of Whaling and Liang is consistent with mine in this case. [30] I conclude that the AEPA infringes the s. 11(i) rights of offenders who committed offences before but were convicted and sentenced after its enactment. I turn to whether the infringement is saved by s. 1 of the Charter. Section 1 of the Charter [31] The government must establish that the retrospective application of the AEPA 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. [32] There is a transition phase whenever statutory provisions are repealed and replaced by others. The government has offered no reason why the transition phase resulting from the repeal of APR had to be made retrospective. I agree with the following analysis of the application judge, at para. 16: In Whaling the Supreme Court of Canada in the judgment of Justice Wagner held that the Crown had met the first 2 requirements but had failed to establish the minimal impairment test. It held that the government sentencing objectives could have been met by specifying that the abolishment of APR applied only to offenders who were sentenced after March 28, 2011 when the AEPA came into effect. This would have avoided a conflict with s. 11(h) of the Charter. I agree with the opinion expressed by [Justice MacKenzie] for the BCCA that the federal government could have accomplished its sentencing objectives and avoided a conflict with both s. 11(h) and (i) by providing that the AEPA applied only to offenses committed after it came into effect on March 28, 2011. The Crown has failed to meet the minimal impairment test for s. 1 of the Charter to apply. B. Conclusion [33] I would conclude that offenders who committed offences before but were convicted and sentenced after the enactment of the AEPA are entitled to the APR regime previously in place by virtue of s. 11(i) of the Charter. I would dismiss this appeal and uphold the decision of the application judge. Released: May 29, 2015 (PR) “R.G. Juriansz J.A.” “I agree Janet Simmons J.A.” “I agree K. van Rensburg J.A.”