Whaling v. Canada (Attorney General)

2012 BCSC 944 Whaling v. Canada (Attorney General)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Whaling v. Canada (Attorney General), 2012 BCSC 944 Date: 20120626 Docket: S112998 Registry: Vancouver Between: Christopher John Whaling Plaintiff And Attorney General of Canada Defendant - and - Docket: S113784 Registry: Vancouver Between: Judith Lynn Slobbe Plaintiff And Attorney General of Canada Defendant - and - Docket: S113785 Registry: Vancouver Between: Cesar Maidana Plaintiff And Attorney General of Canada Defendant Corrected Judgment: The text of the judgment was corrected at paragraphs 45 and 127 on July 17, 2012. Before: The Honourable Madam Justice H. Holmes Reasons for Judgment Counsel for the Plaintiffs: Eric Purtzki Counsel for the Defendant: Cheryl Mitchell Andrea Gatti Place and Date of Hearing: Vancouver, B.C. September 6 & 8, 2011 Place and Date of Judgment: Vancouver, B.C. June 26, 2012 Table of Contents OVERVIEW.. 3 THE CONTEXT AND EFFECT OF THE AMENDMENTS. 4 The AEPA Amendments. 4 The AEPA's Effect on the Plaintiffs. 8 Christopher John Whaling. 8 Judith Lynn Slobbe. 9 Cesar Maidana. 9 THE ISSUES. 10 DOES THE AEPA's REPEAL OF APR AMOUNT TO "PUNISHMENT"?. 11 The Challenge. 11 The Meaning of "Punishment" in s. 11. 12 Introduction. 12 Generally: R. v. Rodgers. 12 Parole Ineligibility Order Imposed by Sentencing Judge is "Punishment" 15 Outside the Charter Context 15 Within the Charter Context 16 Parole Ineligibility Under the CCRA. 18 Abel, Berenstein, Caruana. 18 Limited Applicability of Abel, Berenstein, and Caruana. 20 Imposing Sentences vs. Administrating Sentences. 23 Judicial Consideration in Other Jurisdictions. 32 Conclusion: The Effect of the Transitional Provision. 32 IS THE VIOLATION JUSTIFIED UNDER SECTION 1?. 34 REMEDY. 36

OVERVIEW [1] The plaintiffs are offenders serving federal penitentiary sentences who challenge the retrospective application of the Abolition of Early Parole Act[1] (AEPA), as additional punishment contrary to s. 11(h) of the Charter. The AEPA abolished accelerated parole review and accelerated day parole under the Corrections and Conditional Release Act[2] (CCRA). To counsels' knowledge, this is is the first such challenge. [2] When the plaintiffs began their sentences, the provisions of the CCRA would have made them eligible for release to a halfway house on accelerated day parole after they had served one-sixth of their sentences. With the passage of the AEPA, the plaintiffs are no longer eligible for release on day parole until six months before they have served one-third of their sentences. They must also now qualify for day parole and full parole through the more demanding "normal" parole review process, rather than the accelerated process. [3] In the summary trial, the plaintiffs do not challenge the abolition of accelerated day parole for offenders who were not yet sentenced when the AEPA came into force on March 28, 2011. They challenge only the "Transitional Provision" in the AEPA, by which the amendments apply retrospectively to offenders such as themselves who were already serving their sentences in federal institutions when the AEPA came into force but who had not

yet been directed for release when the AEPA came into force. [4] The plaintiffs submit that the retrospective abolition of accelerated day parole amounts to additional "punishment" and therefore violates their rights, as offenders who have been punished for their offences, not to be punished for those offences again: s. 11(h) Charter. They submit for similar reasons that the retrospective abolition violates their liberty interests in a manner which does not accord with the principles of fundamental justice: s. 7 Charter. [5] For the reasons given below, I am unable to agree with the defendant, the Attorney General of Canada, that the amendments change only the manner in which the plaintiffs' sentences are served, a matter of sentence administration, not punishment. I conclude that the Transitional Provision violates s. 11(h), because it adds to the punishment imposed on the plaintiffs by the sentencing judges. [6] The Transitional Provision is not justified under s. 1 Charter, because the defendant has not established that it is no more damaging to the plaintiffs' s.11(h) rights than is necessary to achieve the government's objective in the AEPA, valid, pressing, and substantial though that objective may well be. [7] The Transitional Provision is of no force and effect, and the AEPA therefore does not apply retrospectively to the plaintiffs or others who were already serving their sentences on March 28, 2011.

THE CONTEXT AND EFFECT OF THE AMENDMENTS [8] It is useful at the outset to examine the operation of the AEPA amendments within the CCRA's parole regime as a whole, and their effect on the plaintiff offenders. [9] Throughout these reasons, the "offenders" to whom I refer are offenders serving sentences in federal institutions. These are the people whose eligibility for parole is subject to the CCRA. The AEPA Amendments [10] The AEPA abolished "accelerated parole review", commonly known as "APR". Until abolished by the AEPA, APR was available to most non-violent offenders serving a first sentence in a federal institution. [11] As its name suggests, APR was an accelerated process for the review of eligible offenders' suitability for parole. Because of the structure of the CCRA, which I will discuss in more detail below, APR-eligible offenders were also eligible for day parole at an earlier date than other offenders, namely after serving one-sixth of their sentences. Without APR (that is, under the normal parole review process), offenders were and are not eligible for day parole until (in most cases) six months before they have served one-third of their sentences. [12] APR was introduced with the coming into force of the CCRA on November 1, 1992. In its initial form, APR was available only in respect of full parole. At that time, it provided only an accelerated review process. It

did not provide for earlier eligibility than under the normal parole review process. [13] In 1997, APR as a process became applicable to day parole as well as full parole, with, also, an earlier eligibility date for day parole by this accelerated process. APR-eligible offenders became eligible for accelerated day parole after serving the greater of six months or one-sixth of their sentences: s. 119.1 CCRA. (For brevity, I will in future omit the reference to serving a minimum of six months, which had no application to the plaintiffs who, as I will explain below, are each serving sentences of more than 36 months.) [14] The offenders eligible for APR were, broadly speaking, first-time federal offenders who were serving sentences for non-violent crimes. The full criteria and the list of offences which rendered an inmate ineligible for APR appeared in s. 125(1) CCRA. This list was modified over time, but none of the changes are relevant to the case at bar. [15] APR differed from normal parole review in three main ways. [16] First, unlike other offenders, APR-eligible offenders did not have to apply for day parole. [17] Second, for both full and day parole, the Board conducted its review of APR-eligible offenders' suitability for parole without a hearing. Corrections authorities were required to automatically compile the relevant information concerning an offender's case, and refer

it to the National Parole Board (recently renamed the Parole Board of Canada) for review in advance of the offender's parole eligibility date.[3] [18] Third, the test for release on parole was easier for the offender to meet in two main ways: (1) the test guiding the Board was less demanding of the offender; and (2) if the test was met, the Board had no discretion to deny parole. [19] Under APR -- whether for full parole or day parole -- the only criterion was that the Board had to be satisfied that there were no reasonable grounds to believe that the offender, if released, was likely to commit an offence involving violence. If it was so satisfied, the Board had no discretion to refuse parole ("it shall direct"). Before its repeal, s. 126(2) of the CCRA, which referred to APR for full parole but applied also (by virtue of s. 126.1) to APR for day parole, read as follows: 126(2) Notwithstanding section 102, if the Board is satisfied that there are no reasonable grounds to believe that the offender, if released, is likely to commit an offence involving violence before the expiration of the offender's sentence according to law, it shall direct that the offender be released on full parole. [emphasis added] [20] The process for normal parole review under s. 102 of the CCRA involves a more demanding test, according to which any perceived risk of the offender committing an offence of

any type may cause the application to fail. Also, the Board appears to have a discretion ("may grant parole") to deny parole even where the Board concludes that the statutory criteria are satisfied. Section 102 reads as follows: 102. The Board or a provincial parole board may grant parole to an offender if, in its opinion, (a) the offender will not, by reoffending, present an undue risk to society before the expiration according to law of the sentence the offender is serving; and (b) the release of the offender will contribute to the protection of society by facilitating the reintegration of the offender into society as a law-abiding citizen. [emphasis added] [21] With the AEPA's repeal of the APR regime as a whole, offenders must now go through the normal parole review process, whether for full parole or day parole. They must submit applications for day parole, must attend a hearing, and must meet the tougher standard for parole set out in s. 102. [22] In addition, the AEPA's abolition of APR removes any possibility of offenders being released on day parole at one-sixth of their sentences. Instead, they must wait until six months before the one-third mark. Their eligibility for full parole remains, in most cases, at one-third of their sentences. [23] It is, in the main, the repeal of this earlier eligibility date coupled with its retrospective application to offenders already

convicted and sentenced that the plaintiffs allege constitutes additional "punishment" in violation of s. 11(h) of the Charter. [24] The retrospective effect of the abolition of APR flows from the AEPA's Transitional Provision (s. 10), which is the provision the plaintiffs challenge. It reads: Application 10 (1) 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. Restriction (2) For greater certainty, the repeal of sections 125 to 126.1 of the Corrections and Conditional Release Act does not affect the validity of a direction made under those sections before the day on which section 5 comes into force. [25] Although the former provisions to which the Transitional Provision expressly refers relate to APR for full parole, and not to APR for day parole, the Transitional Provision, like the AEPA amendments to which it relates, applies to day parole as well. This is because the earlier eligibility date for day parole applied only where an offender "[was] eligible for accelerated parole review

under sections 125 and 126": s. 119.1 CCRA. Even though the repeal of s. 119.1 was not given express retrospective effect, with the AEPA's repeal of sections 125 and 126, which set out the process for APR, it is no longer possible for an offender to qualify as eligible for APR under those provisions, and therefore to benefit from the earlier eligibility date. [26] Finally, I note that the plaintiffs' challenge relates to the effect of the Transitional Provision on their eligibility by way of APR for day parole, and not full parole. The parties drew no distinction in their submissions between the two types of parole for the purposes of s. 11 of the Charter, and I will therefore treat the challenge as relating generally to their eligibility for "parole". This also mirrors the definition of parole in the CCRA, where "'parole' means full parole or day parole". The AEPA's Effect on the Plaintiffs Christopher John Whaling [27] At the time of the summary trial, the plaintiff Christopher John Whaling was an inmate at Ferndale Institution, a minimum security prison, where he was serving a sentence of four years and six months for weapons trafficking, possession of a firearm at an unauthorized place, and possession of a prohibited firearm with ammunition. He was found guilty by Madam Justice Brown on August 30, 2010, and was sentenced on September 29, 2010. [28] Under the APR regime, Mr.

Whaling would have been eligible for day parole on June 29, 2011. The Correctional Service of Canada prepared a report on January 4, 2011, to address the matter of Mr. Whaling's conditional release, and his case was presented to the Community Correction Intervention Board for screening. An appropriate community residence facility was identified as willing to accept him, should the Board grant him day parole. [29] However, with the coming into force of the AEPA on March 28, 2011, the Board informed Mr. Whaling, on April 4, 2011, that it would not review his case for APR day and full parole. Instead, the Board told Mr. Whaling that a panel hearing during the month of February 2012 would review his case for full parole. [30] Mr. Whaling became eligible to apply for normal day parole on September 29, 2011. A panel of the Board denied him day parole and full parole through the normal review process on October 11, 2011. [31] On November 9, 2011, Madam Justice Bennett granted Mr. Whaling's application for bail pending his appeal from conviction. He is currently released on that basis. Judith Lynn Slobbe [32] At the time of the summary trial, the plaintiff Judith Lynn Slobbe was an inmate at Fraser Valley Institution, a multi-level security prison in Abbotsford, British Columbia, where she was serving a total sentence of seven years and seven months for seven counts of fraud, four

counts of fraud over $5,000, and one count each of theft, perjury, and forgery. She pleaded guilty on the basis of an agreed statement of facts, and was sentenced by Fratkin P.C.J. on April 22, 2010. [33] Under the APR regime, Ms. Slobbe would have been eligible for day parole on July 27, 2011. The Correctional Service of Canada prepared a report on July 22, 2010, to address Ms. Slobbe's security classification and penitentiary placement, identifying Ms. Slobbe as a candidate for APR. [34] However, with the coming into force of the AEPA on March 28, 2011, the Board informed Ms. Slobbe, on about March 30, 2011, that it would not review her case for accelerated day and full parole because APR had been abolished. [35] Ms. Slobbe became eligible to apply for normal day parole on April 30, 2012, and is eligible to apply for full parole on October 31, 2012. [36] Ms. Slobbe did not proceed with an application for day parole through the normal parole review process, and remains in custody at Fraser Valley Institution. Cesar Maidana [37] The plaintiff Cesar Maidana is an inmate at Ferndale Institution, a minimum security prison on Vancouver Island. He is serving a serving a sentence of 13 years and six months for one count of possessing 20 kilograms of cocaine for the purposes of trafficking, and one count of trafficking in relation to a different 15 kilograms of cocaine. Madam Justice

Ross found him guilty of those offences on July 20, 2010, and sentenced him on September 30, 2010. [38] Under the APR regime, Mr. Maidana would have been eligible for day parole on December 29, 2012. Mr. Maidana was told on October 12, 2010 that he was identified as an APR case, and would be notified of the month of his parole review. The Correctional Service of Canada prepared a report on January 4, 2011, to address Mr. Maidana's security classification and penitentiary placement, and identified him as a candidate for APR. [39] However, with the coming into force of the AEPA on March 28, 2011, the Board informed Mr. Maidana, on March 30, 2011, that it would not review his case for accelerated day and full parole because APR had been abolished. [40] Mr. Maidana became eligible on December 29, 2011 for unescorted temporary absence. He will be eligible to apply for day parole through the normal parole review process on September 30, 2014.

THE ISSUES [41] The parties' positions and the evidence give rise to the following issues: 1. whether the AEPA's repeal of APR amounts to "punishment", such that the retrospective effect of the Transitional Provision violates the plaintiffs' rights, as offenders who have been punished for their offences, not to be punished for them again (s. 11(h) Charter); 2. whether, for similar reasons, the AEPA's retrospective repeal of APR violates the plaintiffs' liberty interests in a manner which does not accord with the principles of fundamental justice (s. 7 Charter); and 3. in the event of either or both of those violations, whether the retrospective effect of the Transitional Provision is justified under s. 1 of the Charter. [42] With my conclusion concerning the first issue, the second issue need not be determined. Discussion of the first and third issues follows. DOES THE AEPA's REPEAL OF APR AMOUNT TO "PUNISHMENT"? The Challenge [43] As I have indicated, the plaintiffs submit that the AEPA's abolition of accelerated day parole for offenders serving their sentences at the time that it came into force amounts to additional punishment, and therefore violates their right under s. 11(h) not to be "punished...again" for an offence for which they have already been tried and punished. [44] Section 11(h) reads as follows: 11. Any person charged with an offence has the right: ... (h) if

finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; [underlining added to indicate the portion on which the plaintiffs rely] [45] The plaintiffs do not claim that the retrospective effect of the AEPA violates their rights under the related s. 11(i) of the Charter, which reads as follows: 11. Any person charged with an offence has the right: ... (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. Section 11(i) applies only when the punishment for an offence is varied between the time of the offence and the time of sentencing. As the plaintiffs had already been sentenced when the AEPA came into force, their situation does not engage s. 11(i). [46] It appears to be common ground that in appropriate circumstances an offender serving a sentence may invoke s. 11(h) to protect against additional punishment even though no longer "charged" with an offence. Section 11(h)'s protections carry on past trial, conviction (or acquittal), and sentence, to prevent any additional trial or punishment for the offence with which the person was once charged: R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554 at para. 58. [47] The dispute concerning s. 11(h)

boils down to whether the AEPA's abolition of APR amounts to "punishment" (within the meaning of s. 11(h)) or, rather, relates merely to the manner in which the sentences imposed by the court will be administered. It appears to be common ground that if the abolition amounts to "punishment", it is punishment additional to that imposed by the sentencing judges who convicted the plaintiffs and would violate the plaintiff's rights under s. 11(h). [48] I turn then to consider the case authorities concerning "punishment" within s.

11. The Meaning of "Punishment" in s. 11 Introduction [49] The parties agree that the Supreme Court of Canada's decision in R. v. Rodgers is the leading authority concerning the scope of s. 11 of the Charter, and provides the starting-point for the present analysis. It provides the starting-point, rather than the conclusion, because, as I will discuss, its guidance is expressed in general terms, the application of which depends heavily on findings about the character of the impugned measure. [50] I will first discuss the general principles concerning s. 11 which Rodgers describes, and will then turn to the other authorities which address the more specific matter of parole eligibility, first according to the Criminal Code and then according to the CCRA. It will be seen that while orders relating to parole eligibility made by a sentencing judge as part of a sentence are, clearly, "punishment", no binding authority to date indicates whether CCRA provisions restricting parole eligibility also have that character. Generally: R. v. Rodgers [51] In Rodgers, Charron J. for the majority concluded that an order requiring the offender to provide a bodily sample for DNA analysis did not amount to "punishment" so as to trigger his rights under ss. 11(h) and (i). The order had been made while the offender served his sentence, and was based on s. 487.055(1)(c) of the Criminal Code, which was

enacted after his sentence was imposed. [52] Charron J. noted that "[w]hat constitutes 'punishment' under s. 11 has yet to be fully explored", and that, like all Charter rights, s. 11 requires a "liberal and purposive approach" to its interpretation: Rodgers, at paras. 59 and 61. She then described "punishment" as referring to "the arsenal of sanctions to which an accused may be liable upon conviction for a particular offence", where the sanction is imposed in furtherance of the purposes and principles of sentencing: 62. In its ordinary sense, "punishment" refers to the arsenal of sanctions to which an accused may be liable upon conviction for a particular offence. The Criminal Code uses the words "punishment" or "punishable" to describe the range of sanctions available on sentencing. For example, an offence will be described as "punishable" on summary conviction and the offender will be "liable to a fine ... or [a term of] imprisonment" ... [examples omitted].

63. This does not mean, however, that "punishment" under ss. 11(h) and 11(i) necessarily encompasses every potential consequence of being convicted of a criminal offence, whether that consequence occurs at the time of sentencing or not. A number of orders can be made by a sentencing court, for example an order for forfeiture, a firearm prohibition, a driving prohibition, or an order for restitution. It is beyond the purview of this appeal to determine whether or not any of these consequences constitutes a punishment. As a general rule, it seems to me that the consequence 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. [emphasis added] [53] She agreed with the Crown that the DNA order in issue was not punishment, because it was no more part of that arsenal of sanctions than is the taking of a photograph or fingerprints: Rodgers, at para. 65. [54] Charron J. relied in part on the reasoning in R. v. Wigglesworth, [1987] 2 S.C.R. 541, where Wilson J. for the majority concluded that s. 11(h) did not extend to police disciplinary proceedings so as to prevent a subsequent criminal trial concerning the same misconduct. Wilson J. had there discussed and applied a two-part test to identify s. 11

"punishment", a test which in part described that concept as, "the imposition of true penal consequences": Wigglesworth, at 561-562. [55] The Crown in Rodgers argued that, on the basis of Wigglesworth, "punishment" in s. 11 means only "the imposition of 'true penal consequences' such as 'imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large . . .'". However, Charron J. rejected this submission. She noted that Wilson J. had ultimately concluded that the proceedings did not trigger s. 11 at all, because, as disciplinary proceedings, they did not involve the same "offence" as the criminal trial: the former proceedings involved internal discipline in which the police officer accounted to his profession, while the latter involved wrongdoing for which the officer accounted to society as member of the public at large. Charron J. emphasized that the Wigglesworth test determines when s. 11 is triggered, but does not purport to offer exhaustive definition of "punishment" in a criminal proceeding: Rodgers, at para. 59: ... It is important to put the Wigglesworth test in context. As I will explain, it applies to determine whether s. 11 is triggered but does not purport to restrict the meaning of "punishment" in the context of a criminal proceeding to encompass only imprisonment and heavy fines. Charron J.'s

comment that "[w]hat constitutes punishment has yet to be fully explored", immediately before her discussion of Wigglesworth, indicates perhaps more explicitly that the Wigglesworth description of "punishment" is not to be taken as comprehensive. [56] From Rodgers, it is therefore clear that "punishment' in s. 11 is not limited to "true penal consequences". It includes the larger arsenal of consequences which respond to an offence in furtherance of the purpose and principles of sentencing. [57] Barrow J. applied the Rodgers analysis in P.S.C. v. British Columbia (Attorney General), 2007 BCSC 895, and concluded that the requirement to register under the Sex Offender Information Registry Act, S.C. 2004, c.10 ("SOIRA"), which came into force after the offenders were sentenced, did not breach their rights under s. 11(h). Barrow J. held that the SOIRA requirements did not amount to "punishment", because the deprivations of liberty they effected were relatively minor or trivial, and were imposed to aid in the investigation of sexual offences and not "for the purpose of redressing the wrong done to society": P.S.C., at paras. 117-122. [58] The plaintiffs submit that, in contrast to DNA orders (Rodgers) or SOIRA registration requirements (P.S.C.), the wholesale abolition of accelerated day parole results in more severe treatment during their sentences, with direct adverse effect on

their liberty. They submit that the AEPA introduces this consequence as a form of redress to society, in furtherance of sentencing purposes and principles, and that its effect is therefore necessarily "punishment". [59] With the general guidance of Rodgers in mind, I will now discuss the case authorities concerning, specifically, the character of restrictions on eligibility for parole. Parole Ineligibility Order Imposed by Sentencing Judge is "Punishment" [60] It is clear from the authorities that where a sentencing judge limits an offender's eligibility for parole, the limit is part of the punishment occasioned by the sentence. Several decisions of the Supreme Court of Canada so indicate in contexts which did not directly require a consideration of the Charter or s. 11, while several decisions of provincial courts of appeal indicate likewise in contexts which did engage s.

11. These I will briefly review. Outside the Charter Context [61] In a context which was not argued to engage the Charter, Iacobucci J. for the Court in R. v. Shropshire, [1995] 4 S.C.R. 227, considered the mandatory minimum period of parole ineligibility for first degree murder, and described it as "clearly" punishment : 23. The only difference in terms of punishment between first and second degree murder is the duration of parole ineligibility. This clearly indicates that parole ineligibility is part of the "punishment" and thereby forms an important element of sentencing policy. ... [62] By similar reasoning, La Forest J. for the Court in R. v. Chaisson, [1995] 2 S.C.R. 1118, rejected the Crown's argument that courts of appeal had no jurisdiction to review parole ineligibility orders made by a sentencing judge under s. 741.2 of the Criminal Code. The Crown had argued that such orders were not part of the offender's sentence. La Forest J. noted that "under s. 741.2 the determination of conditional release eligibility has now become a factor in sentencing, and not simply a matter exclusively in the hands of the Parole Board" [emphasis in original]. He also adopted from Griffiths J.A.'s reasons in R. v. Goulet (1995), 22 O.R. (3d) 118 (C.A.) at 122-123, the following passage recognizing that parole ineligibility "increases the punishment imposed by the sentence in a very real

way" by pre-empting the exercise of the Board's discretion in the individual case: Section 741.2 clearly operates as an exception to the general statutory provision governing parole eligibility and contemplates a further restriction on the offender's liberty beyond that which normally flows from the prison term imposed by the sentencing judge. An order made under s. 741.2 restricting eligibility for parole increases the punishment imposed by the sentence in a very real way. In making an order under s. 741.2 increasing parole ineligibility the sentencing judge is looking into the future and declaring that the offender should not even be considered for parole during some part of what would otherwise be his or her period of parole eligibility. A s. 741.2 order pre-empts the normal role of the Parole Board during the added period of parole ineligibility and replaces the case-by-case exercise of that expert tribunal's discretion with an absolute order made years before the effect of that order is felt. ... [emphasis added] [63] Further, LeBel J. for the Court in R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41 at para. 24, which concerned procedural and substantive issues concerning the proper application of the delayed parole scheme under s. 743.6 of the Criminal Code, said that "[d]elaying parole can be a significant component of a sentence". Within the Charter Context [64] Provincial courts of appeal have applied similar reasoning in a Charter context, and have found orders delaying parole made by a sentencing judge to be "punishment" within the scope of s.

11. I note, parenthetically, that these authorities all relate to s. 11(i), and not to s. 11(h), a distinction to which I will later return. [65] In R. v. Logan (1986), 14 O.A.C. 382, 51 C.R. (3d) 326, the offenders were convicted on three counts of first degree murder and were sentenced to life imprisonment without eligibility for parole for 25 years. The 25-year period of parole ineligibility was based on amendments to the Criminal Code enacted after the offenders committed their offences, but which applied to offences tried after the amendments came into force "irrespective of when [the offences were] actually committed". Had the offenders been sentenced according to the Criminal Code provisions in force at the time of their offences, the parole ineligibility period would have been 20 years. In allowing their appeal, based on s. 11(i), from the parole ineligibility portion of their sentences, the Court concluded in brief reasons that "[t]he period of ineligibility for parole is part of the punishment for the offence, and the appellants are entitled to the benefit of the lesser punishment." The amending provision was held to be inoperative to the extent that it purported to apply the greater period of parole ineligibility to offences committed before the amendment came into effect. [66] The Ontario Court of Appeal also applied Logan in R. v. Olah (1997), 33 O.R. (3d) 385

(C.A.), 115 C.C.C. (3d) 389, where Olah's co-accused, Ruston, appealed his sentence of life imprisonment without parole for 25 years for the first degree murder he committed with Olah. Two months after the trial judge imposed that sentence, which was the mandatory minimum at the time, amendments came into force reducing the mandatory minimum period of parole ineligibility to ten years for offenders who were under 18 years of age at the time of the offence. Ruston had been 17 years old at the time of the offence and, in his appeal, claimed the benefit of the new, reduced parole ineligibility period. Osborne J.A. for the Court held that he was entitled to the benefit of the "lesser punishment" on the basis of either or both of s. 44(e) of the Interpretation Act and s. 11(i) of the Charter, and reduced the parole ineligibility period to ten years. [67] In R. v. Lambert (1993), 123 Nfld. & P.E.I.R. 347 (Nfld. C.A.), 93 C.C.C. (3d) 88, the Newfoundland Court of Appeal considered s. 741.2 of the Criminal Code in light of s. 11(i) of the Charter, and found a violation. Section 741.2 had come into force after the date of the offence but before conviction and sentencing, and permitted the court to make an order that an offender not be eligible for parole for the lesser of one half of the sentence or ten years when the offender had committed certain offences, Since s. 741.2 therefore

provided for more "severe handling" or "harsh or injurious treatment" of the offender, the Court held that it formed part of the offender's "punishment", and s. 11(i) therefore entitled him to the lesser punishment at the time of the offence. Without meaning to suggest that the result in Lambert would be different under more contemporary jurisprudence, I note that the reasoning in Rodgers may have superseded some of the analysis by which the Court in Lambert reached its conclusion. [68] From these authorities, there can be no real dispute that parole ineligibility orders imposed by the sentencing judge are "punishment" that may engage s. 11 of the Charter. Parole Ineligibility Under the CCRA [69] Much less clear is whether parole ineligibility dictated by the CCRA is "punishment" within s. 11, whether s. 11(i) or s. 11(h). No appellate court has to date addressed this issues. Superior trial courts have reached what the parties submit are conflicting decisions. As I will discuss, the plaintiffs rely on Abel v. Edmonton Institute for Women (Director) (2000), 275 A.R. 152 (Q.B.), 149 C.C.C. (3d) 401, while the defendant relies on Berenstein v. Commission nationale des libérations conditionnelles (1996), 111 F.T.R. 231 and on Caruana v. Bath Institution (2002), 48 C.R. (5th) 285 (Ont. S.C.J.) on this point. [70] For the reasons I will give below, I conclude that none of those

decisions applies directly to the present issue. Resort will be necessary later in this analysis to more general principles. Abel, Berenstein, Caruana [71] In Abel, Clarke J. concluded that parole ineligibility dictated by the CCRA is "punishment" within s. 11(i) of the Charter. In Abel, amendments to the CCRA enacted between the date of the offence and the date of sentencing had removed the eligibility, for the offender, for accelerated parole. She applied for a habeas corpus order that her parole be determined according to the law at the time of the offence, and not according to the law at the date of sentencing. Rejecting the respondent's submission that the reasoning in Berenstein (which I will discuss below) should apply, Clarke J. made the declaration Ms. Abel sought, concluding that to draw a distinction between parole ineligibility imposed by the sentencing judge and parole ineligibility under the CCRA is to draw "a distinction without a material difference": Abel, at para.

16. Clarke J.'s reasons on this issue read as follows: 15. The Respondents referred me to Berenstein v. Commission nationale des liberations conditionnelles (1996) 111 F.T.R.

231. In that case a similar fact situation arose in that the Applicant committed an offence at a time when day parole could be available after serving one-sixth of the sentence but was sentenced after changes were made to the Act increasing the period of parole ineligibility to one-third of the sentence. The National Parole Board refused to hold a hearing on day parole after he had served one-sixth of the sentence and the inmate applied for a mandamus to compel the Board to hold a hearing claiming that s. 11(i) of the Charter of Rights and Freedoms entitled him to the benefit of lesser "punishment". The Court found in dismissing the application that s. 11(i) of the Charter applied only to the process of indictment, trial and sentencing. It did not apply to the Corrections and Conditional Release Act which did not impose "punishment" within the meaning of s. 11(i) but merely set out how a sentence was to be served.

16. The Gamble decision makes it clear that it is fundamental to any legal system which recognizes the rule of law, that an accused must be tried and punished under the law in force at the time of the offence. Gamble goes on in interpreting that statement to include parole eligibility as an element of "punishment". While the Respondents say that those cases that clearly follow that principle all deal with the issue at the time that the trial judge imposes sentence, they do not apply where the provisions of the Corrections and Conditional Release Act affect eligibility for parole. That is a distinction without a material difference. It is firmly established in our law that the availability of parole is an element that fits within the concept of punishment and so the law that was applicable at the time that the offence occurred should be the law that governs the terms of the accused's punishment. As a result I have concluded that it is appropriate for this Court to issue a declaration that the eligibility for parole of this Applicant should be determined by the provisions of the Corrections and Conditional Release Act in effect at the time of the commission of the offence. [72] In Berenstein, Rouleau J. denied Mr. Berenstein's application for a writ of mandamus to compel a parole hearing based on a provision of the Parole Act in force at the time of the offences but repealed

before he was sentenced. Under that provision, Mr. Berenstein would have been eligible for day parole after serving one-sixth of his sentence. By the time he was sentenced, the CCRA had replaced the Parole Act, and, pursuant to its terms (as first introduced), Mr. Berenstein was ineligible for day parole until six months before he had served one-third of his sentence. [73] Rouleau J. referred to the different roles of the parole and sentencing regimes, and also reasoned that s. 11 of the Charter did not apply to Mr. Berenstein's circumstances, because that protection "applies only to the process of indictment, trial and sentencing of individuals in criminal and penal matters": Berenstein, at para.

10. The application of the CCRA was not inconsistent with s. 11(i) of the Charter, because the CCRA applies only after a sentence has been imposed and does not of itself impose "punishment" (para. 15): ...[the CCRA] is applicable only once a sentence has been imposed on an inmate and he or she is to begin serving it. The [CCRA] sets out the manner in which a sentence of detention is to be served. In other words, it governs how sentences imposed by courts of criminal and penal jurisdiction are carried out. Thus, it does not impose a "punishment" within the meaning of paragraph 11(i). [74] In Caruana, at para. 9, Cunningham J. denied Mr. Caruana's application, based on s. 11(i), to rely on the day parole eligibility provisions which were in force when he committed his offence, but which had been repealed before he was sentenced. Cunningham J. expressly preferred the reasoning in Berenstein to that in Abel, and concluded that "[t]he law in force at the time of sentencing controls the conditions under which a judicial sentence must be served". Limited Applicability of Abel, Berenstein, and Caruana [75] While, as I will discuss later, I agree with conclusion in Abel that the retrospective abolition of early parole amounts to "punishment" for the purposes of s. 11, in my view the route to that conclusion must be different in the present case. This is in the main because Abel relied

largely on the principles in Gamble, [1988] 2 S.C.R. 595 at 647, which require trial and punishment in accordance with the law in force at the time of the offence, and those principles have but limited application here. [76] Gamble concerned s. 7 of the Charter and parole eligibility as dictated by the Criminal Code. The accused had been convicted of first degree murder and sentenced to life imprisonment without eligibility for parole for 25 years under Criminal Code provisions which came into force after she committed the offence. If she had been tried under the provisions in force when she committed the offence, the parole ineligibility period would have been set between ten and 20 years. Wilson J. for the majority agreed with the accused (who brought a habeas corpus application after serving 10 years of her sentence) that continued detention, in accordance with the 25-year ineligibility condition of her sentence, would violate s. 7 of the Charter because, "[i]t is fundamental to any legal system which recognizes 'the rule of law'...that an accused must be tried and punished under the rule of law in force at the time the offence is committed": Gamble, at 657. Wilson J. seemed also to incline to the view that the retrospective effect of the amendments violated s. 11(i) of the Charter, but did not decide that issue: Gamble, at 647-648. [77] No need arose in Gamble to address the nature or scope of "punishment" in s.

11. The accused had been convicted and sentenced according to Criminal Code provisions (concerning both liability and sentence) enacted after the date of the offence. The violation of s. 7 was clear, as Wilson J.'s brief reasons on this point reflect. One can assume also that had the case been argued by reference to s. 11 on the basis of current jurisprudence, a clear violation of s. 11(i) would have been found, because Ms. Gamble's parole eligibility was dictated by the Criminal Code, and not by parole legislation. [78] The fundamental principle at play in Gamble entitles a convicted person to any lesser punishment available at the time of the offence. The plaintiffs' challenge here is focussed more sharply on rights arising by virtue of the law in force at the later stage of sentencing. Their challenge is accordingly founded on s. 11(h), and not on s. 11(i) as were the challenges in Abel, Berenstein, and Caruana. [79] Berenstein also has limited application in the present case, for similar reasons. The new CCRA, which by invoking s. 11(i) Mr. Berenstein sought to avoid, was already in force when Mr. Berenstein's sentence was imposed, such that the judge imposing it did so in the light of that governing regime. Here, by contrast, the plaintiffs were sentenced before the AEPA came into force; that is why they invoke their rights under s. 11(h), not s. 11(i). The AEPA played no

part when plaintiffs were sentenced, and could not have done so. [80] While it is reasonable to conclude that the term "punishment" has the same meaning in s. 11(h) and s. 11(i), the two Charter protections apply at different stages of criminal proceedings and in my view may apply in different ways. [81] In particular, by its terms, s. 11(i) can apply only before a sentencing judge imposes sentence, and in so doing crystallizes the "punishment" flowing from the criminal proceedings. Section 11(h), by contrast, expressly protects against further punishment, or punishment added after the imposition of sentence. Since s. 11(h) protects an already tried and punished offender both against further trial and against further "punishment", it seems unlikely that the latter protection was intended to include only consequences imposed by a court after a trial. [82] Caruana relied principally on Berenstein, and is therefore of limited application for the reasons discussed above in relation to that case. Moreover, viewed from that perspective, the reasoning in Caruana supports the plaintiffs' position more than it does the defendant's. Mr. Caruana's application did not succeed, but it failed because it was the law in force when sentence was imposed which Cunningham J. concluded should apply. That result is, in effect, the result the plaintiffs seek in this case. Imposing Sentences vs.

Administrating Sentences [83] The question then remains whether, as the defendant submits, there is a material difference between, on one hand, parole ineligibility imposed by a judge as part of a criminal sentence, which the defendant acknowledges constitutes punishment, and, on the other hand, parole ineligibility by operation of the CCRA, which the defendant argues is merely a means of sentence administration. [84] There is no doubt that the Supreme Court of Canada has drawn a distinction in several contexts between the roles of the sentencing and parole regimes respectively. [85] In Chaisson, for example, La Forest J. explicitly distinguished the trial judge's authority under s. 741.2 to impose an additional period of parole ineligibility as part of the sentencing process, from an "administrative parole determination which is within the exclusive jurisdiction and absolute discretion of the Parole Board". Rejecting the Crown's submission that the two were analogous, he said this: 11. My difficulty with this argument is that the s. 741.2 order is not an administrative parole determination, within the exclusive jurisdiction and absolute discretion of the Parole Board, but is instead included in the Code as part of a trial judge's authority. Parliament's decision to place this power in the Code rather than in the Corrections and Conditional Release Act should not be ignored.

The inclusion of s. 741.2 of the Code should, in my view, be understood to indicate an intention on the part of Parliament explicitly to allow a trial judge to reduce the discretion of the Parole Board in certain circumstances, by requiring an accused to serve one half of his or her term of imprisonment before being able to seek parole. The point is that under s. 741.2 the determination of conditional release eligibility has now become a factor in sentencing, and not simply a matter exclusively in the hands of the Parole Board. ... [emphasis in original] [86] It is clear, therefore, that a sentencing judge's order delaying parole is wholly different in character from decisions of the Board made in the course of administering the parole regime under the CCRA. [87] However, it does not follow that all of the features of the CCRA which may bear on an offender's eligibility for parole necessarily bear only on the administration of his or her parole, and not on his or her punishment. [88] When La Forest J. distinguished criminal sentences from parole administration, he had in mind, in relation to the latter, discretionary decisions made by the Board in relation to individual offenders in their individual circumstances according to the governing statutory regime. This is clear from the following passage of his reasons, quoted in part above but repeated and extended here with key

comments on this point shown underlined: 11. My difficulty with this argument is that the s. 741.2 order is not an administrative parole determination, within the exclusive jurisdiction and absolute discretion of the Parole Board, but is instead included in the Code as part of a trial judge's authority. Parliament's decision to place this power in the Code rather than in the Corrections and Conditional Release Act should not be ignored. The inclusion of s. 741.2 of the Code should, in my view, be understood to indicate an intention on the part of Parliament explicitly to allow a trial judge to reduce the discretion of the Parole Board in certain circumstances, by requiring an accused to serve one half of his or her term of imprisonment before being able to seek parole. The point is that under s. 741.2 the determination of conditional release eligibility has now become a factor in sentencing, and not simply a matter exclusively in the hands of the Parole Board. I agree with the following comments of Griffiths J.A. in R. v. Goulet (1995), 22 O.R. (3d) 118 (C.A.), at pp. 122-23: Section 741.2 clearly operates as an exception to the general statutory provision governing parole eligibility [s. 120(1) of the Corrections and Conditional Release Act, which requires generally that one-third of a sentence be served before an application for parole] and contemplates a further restriction

on the offender's liberty beyond that which normally flows from the prison term imposed by the sentencing judge. An order made under s. 741.2 restricting eligibility for parole increases the punishment imposed by the sentence in a very real way. In making an order under s. 741.2 increasing parole ineligibility the sentencing judge is looking into the future and declaring that the offender should not even be considered for parole during some part of what would otherwise be his or her period of parole eligibility. A s. 741.2 order pre-empts the normal role of the Parole Board during the added period of parole ineligibility and replaces the case-by-case exercise of that expert tribunal's discretion with an absolute order made years before the effect of that order is felt. [emphasis added] [89] With the AEPA amendments, day parole is no longer available at the one-sixth stage of a sentence. No opportunity arises for the "case-by-case exercise of [the] expert tribunal's discretion": as a matter of law, the AEPA abolishes APR, and therefore day parole at one-sixth of the sentence. In my view, the distinction La Forest J. drew in a very different context offers the defendant little assistance here. [90] I reach a similar conclusion regarding LeBel J.'s reasons for the Court in Zinck, reviewing the sentencing judge's order under s. 743.6 of the Criminal Code delaying the offender's

eligibility for parole until he had served at least six years of his 12-year sentence for manslaughter. In the course of discussing the then relatively new Criminal Code provisions allowing sentencing judges to make orders delaying eligibility for parole, LeBel J. referred at some length to the respective roles of the sentencing and parole regimes. It is true that, as the defendant submits, LeBel J. noted a fundamental distinction between the role of the sentencing judge, which is to impose punishment, and the role of the Board, which is to administer the sentence. Again, however, he did so assuming that the parole regime functions through the exercise of discretion, based on attention to the circumstances of individual cases and offenders, and distinguished the role of the sentencing judge and the Board on that basis. The following passage illustrates this: 19. Determining the date and conditions of parole eligibility is usually the prerogative of an administrative body, the Parole Board, in the discharge of its supervisory functions over the execution of sentences. Over time, however, the focus of legislation has shifted. The Corrections and Conditional Release Act (the "Act") now puts more emphasis than before on the protection of the public and less on pure rehabilitation objectives and concerns. (See, for example, ss. 4, 102 and 126 of the Act; also, Dumont, supra, at p.

299.) Nevertheless, the decision-making process under the Act remains much different from the judicial determination of a fit sentence. It is largely based on the ongoing observation and assessment of the personality and behaviour of the offender during his or her incarceration, which focuses on dangerousness and the offender's ability to re-enter the community (Dumont, supra, at p. 333). Such a process may extend over several years and lead to decisions that are highly attentive to context and based, at least in part, on what actually happened during the incarceration of the offender. [Emphasis added] [91] Again, the AEPA amendments abolish APR as a matter of law, entirely removing the Board's discretion, based on the statutory criteria, to grant day parole at that stage. As a result, the distinction which LeBel J. drew in Zinck does not much assist the defendant. [92] That the test for APR parole under s. 126(2) CCRA focussed exclusively on the risk that the offender would commit an offence of violence if released, does not, in my view, alter this conclusion. The Board had a discretion to exercise, in relation to APR parole, even if the scope for denying parole was relatively narrow. [93] Lamer C.J. for the Court in R. v. C.A.M., [1996] 1 S.C.R. 500 also recognized a fundamental distinction between the roles of the sentencing and parole regimes. Again, however, and as in

Zinck and Chaisson, in its full context the reasoning does not support the defendant's position that the AEPA amendments relate only to sentence administration, and do not amount to "punishment". [94] In C.A.M., Lamer C.J. considered whether there is an upper limit on the cumulative length of consecutive periods of imprisonment imposed under the Criminal Code. The accused argued that such a limit could be inferred from the parole ineligibility provisions in the Corrections Act (the predecessor to the CCRA), because it would be an "obvious absurdity" to have a longer period of parole ineligibility for offenders serving consecutive sentences than for offenders serving a sentence of life imprisonment. Rejecting that argument, Lamer J., described as follows, in passages on which the defendant relies, the nature, role, and effect of the parole regime and its relationship to criminal sentencing: 57. Given the nature of the parole regime, there are limited, if any, inferences that one can draw concerning the structure of maximum sentences under the Code from the operation of the parole eligibility provisions of the Corrections Act. As I shall endeavour to demonstrate, Parliament established the parole system as a regime by which the conditions of incarceration of a sentence could be altered by subsequent executive review, rather than as a regime by which the sentence itself could be

reduced. In my view, the fact that conditions of incarceration are subject to review and possible change at a particular point in time says little about the efficacy and limits of a global fixed-term sentence in advancing the traditional goals of sentencing. Put differently, there is no indication that the parole ineligibility rules of the Corrections Act were intended to constrain a court's ability to advance the goals of deterrence, denunciation, rehabilitation and the protection of society through numerical sentences beyond 20 years. Indeed, the Corrections Act was enacted to establish an administrative regime for executing and implementing the scheme of discretionary punishments anticipated by its legislative parent, the Criminal Code. To suggest that the mechanical parole rules contained within the Corrections Act have the contrary effect of dramatically restricting the sentencing discretion of trial judges under the Code, with respect, fundamentally misreads the relationship between the two statutes. . . .

62. In short, the history, structure and existing practice of the conditional release system collectively indicate that a grant of parole represents a change in the conditions under which a judicial sentence must be served, rather than a reduction of the judicial sentence itself. Needless to say, an offender enjoys a greater measure of freedom and liberty when the conditions of his or her imprisonment are changed from physical confinement to full parole. Indeed, as we implicitly held in R. v. Gamble, [1988] 2 S.C.R. 595, at pp. 609 and 647, continued incarceration with an extended period of parole ineligibility (much less continued incarceration through an actual denial of parole) may constitute a deprivation of a cognizable liberty interest under s. 7 of the Charter. But even though the conditions of incarceration are subject to change through a grant of parole to the offender's benefit, the offender's sentence continues in full effect. The offender remains under the strict control of the parole system, and the offender's liberty remains significantly curtailed for the full duration of the offender's numerical or life sentence. The deterrent and denunciatory purposes which animated the original sentence remain in force, notwithstanding the fact that the conditions of sentence have been modified. The goal of specific deterrence is still advanced, since the offender remains

supervised to the extent and degree necessary to prevent possible crime, and since the offender remains under the shadow of re-incarceration if he or she commits another crime. As well, the goal of denunciation continues to operate, as the offender still carries the societal stigma of being a convicted offender who is serving a criminal sentence. [emphasis in original] [95] Taken in isolation, these passages do seem to support the defendant's position that the sentencing and parole regimes carry out fundamentally different functions. However, while Lamer C.J. clearly recognized different roles and objectives for the sentencing and parole regimes, I do not read his reasons as indicating that the two regimes therefore function within separate compartments, the one incapable of either implementing or overlapping with the role and objectives of the other. [96] Indeed, discussing the principles which animate parole eligibility thresholds, Lamer C.J. drew no distinction between those stipulated by a sentencing judge (through orders regarding minimum periods of parole ineligibility) and those set out in the CCRA or its predecessor statutes. Before addressing the inferences to be drawn -- or not drawn, as was his conclusion in C.A.M. -- from "this larger scheme of parole eligibility rules governing review of the conditions of sentence", Lamer C.J. discussed the parole ineligibility

provisions in each of the Criminal Code and the Corrections Act, as follows: 63. Against this backdrop, the purpose and effect of the parole eligibility rules in the Corrections Act become clear. Within the broad statutory minimum and maximum sentences of the Code, Parliament has vested trial judges with considerable discretion to direct a just and appropriate sentence which advances the principles of deterrence, denunciation, rehabilitation and protection of society among other sentencing goals. But in addition to providing for the imposition of a global sentence which reflects the culpability of the offender, Parliament also established threshold periods of parole ineligibility [under the Code], because it concluded that the traditional blend of sentencing principles also required that a minimum portion of the global sentence be served through conditions of physical confinement. As Iacobucci J. recently noted in R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 23, in discussing the mandatory minimum period of parole ineligibility for first degree murder: "parole ineligibility is part of the 'punishment' and thereby forms an important element of sentencing policy".

64. While Parliament was undoubtedly animated by the full range of sentencing principles in setting such threshold periods, it appears to have been principally motivated by the sentencing goals of deterrence and denunciation. By establishing a fixed formula for a minimum period of parole ineligibility under s. 120(1) of the Corrections Act (i.e., the lesser of 1/3 of the sentence or seven years), Parliament seems to have concluded that a minimum period of physical confinement was necessary to advance the causes of general deterrence and denunciation even if the offender was completely rehabilitated and posed absolutely no threat to society at the time of sentence. Courts of appeal have similarly concluded that other minimum parole ineligibility periods set by the Code are principally motivated by the concerns of deterrence and denunciation. As the Manitoba Court of Appeal concluded in R. v. Ly (1992), 72 C.C.C. (3d) 57, at p. 61, in discussing the 10-year parole ineligibility for second-degree murder under s. 744 of the Code: "Parliament's purpose in adding a minimum period of parole ineligibility to a life sentence was, in my view, twofold. It was to deter and denounce the crime." [emphasis added] [97] Lamer C.J. appears therefore to have viewed parole thresholds or minimum periods of ineligibility, whether enacted through the Criminal Code or through the CCRA, as joined in a

single scheme reflecting Parliament's conclusions about necessary minimum periods of physical confinement. This reasoning runs counter to the defendant's position that parole ineligibility provisions in the Criminal Code relate to "punishment", but parole ineligibility through amendments to the CCRA necessarily do not. [98] Finally, in Cunningham v. Canada, [1993] 2 S.C.R. 143, McLachlin J. (as she then was) for the Court also distinguished a criminal sentence, as governed by sentencing provisions, from the manner in which it is to be served, as governed by the parole regime. Nonetheless, she concluded that a post-sentence amendment to the Parole Act, which delayed the offender's eligibility for supervised release, engaged his liberty interest sufficiently to warrant Charter protection. [99] The context in Cunningham was s. 7 of the Charter, and not s. 11, and ultimately McLachlin J. held that the amendment accorded with the principles of fundamental justice, because it denied the offender's liberty only to the extent shown necessary for the protection of the public's safety, and struck the right balance between the various interests. However, it seems of some significance to the present discussion -- and largely inconsistent with the defendant's position in this summary trial -- that a post-sentence change to the parole regime, affecting not the duration of the offender's

sentence but, rather, the manner in which it was to be served, was recognized as engaging a constitutionally-protected interest. [100] The conclusion that the objectives and functions of the sentencing and parole regimes can and do overlap at times also finds support in the apparent background role of parole in the sentencing process. [101] In R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, Arbour J. for the Court undertook a process of statutory interpretation to determine how credit for pre-sentencing custody should be applied to a mandatory minimum sentence. In the course of concluding that a mandatory minimum sentence may validly be reduced by the amount of that credit, she commented on the relationship between the sentencing and parole regimes. [102] Arbour J. noted that rarely is a sentencing court concerned with the administration of the sentence. Rather, the judge relies on the CCRA to administer the sentence, almost invariably by reducing the amount of time the offender actually spends in detention: Wust, at para.

24. While in isolation this comment might suggest that the main features of the parole regime are usually outside the contemplation of the sentencing judge, Arbour J.'s reasons as a whole indicates that this was not her view. [103] In particular, Arbour J. noted that mandatory minimum sentences "must be understood in the full context of the sentencing scheme, including the management of sentences provided for in the [CCRA]": Wust, at para. 23. [104] She also rejected as "an exercise in semantics" the argument that pre-sentencing custody is not punishment because the criminal justice system does not punish innocent citizens before their trials. Like time spent lawfully at large on parole, which is a continuation of a sentence of incarceration, pre-sentencing custody, while not intended as punishment, has that effect by virtue of s. 719(3) of the Criminal Code, which allows the sentencing court to take into account any time spent in custody as a result of the offence: Wust, at paras 39-41. The "2:1" ratio often applied in the calculation of this credit for pre-sentencing custody reflects not only the harshness of that form of detention (because of the lack of educational, vocational, and rehabilitative programs), but also "the fact that none of the remission mechanisms contained in the [CCRA] apply to that period of detention": Wust, at para. 45. [105] Arbour J. thus measured the effect of a sentence according, in part, to the harshness of the detention it entailed and the remission mechanisms available to the offender post-sentence; she recognized the sentencing judge as the person best placed to determine the appropriate sentence taking into account these and the other applicable factors: Wust, para.

45. This understanding of the sentencing judge's role implies that the judge determines and imposes an offender's sentence in light, in part, of the statutory parole regime in force at the time. [106] Three years later, in Zinck, LeBel J. made a comment which could be taken to contradict this proposition. In the course of reviewing the trend toward giving judges the power or responsibility to fix parole ineligibility periods during sentencing, he said that considerations of parole eligibility were normally irrelevant to the determination of the fitness of a sentence: Zinck, at para. 18: 18. The delayed parole scheme under s. 743.6 reflects a relatively recent change in legislative policy on sentencing. It is true that a related provision, which is now found in s. 745.4, had provided for a number of years that a sentencing judge must fix the period of parole ineligibility of an accused convicted of second degree murder. This exception aside, the principles of sentencing drew a clear distinction between the functions of courts, which determined the proper punishment for an offence, and the role of agencies which ran the jails and oversaw the execution of sentences. Eligibility for parole fell within the mandate of the National Parole Board. Considerations relating to parole eligibility normally remained irrelevant to the determination of the fitness of the sentence: R. v. M.

(C.A.), [1996] 1 S.C.R. 500, at para. 62, per Lamer C.J. While some courts may have increased the length of a jail term to manipulate the term of parole ineligibility, such a practice is quite improper. (See H. Dumont, Pénologie: Le droit canadien relatif aux peines et aux sentences (1993), at p. 151; see also A. Manson, "Judges and Parole Eligibility: Section 741.2" (1995), 37 C.R. (4th) 381.) [emphasis added] [107] While in isolation the underlined portions of these remarks might appear to indicate that a sentencing judge must not take account of the parole regime in determining the fitness of a sentence, in their fuller context I do not read them as having that intent. As I read LeBel J.'s remarks, and in light of the sources to which he referred in support,[4] he intended to condemn the distortion by a sentencing judge of an otherwise fit sentence in order to manipulate the offender's eligibility for parole; he did not intend to condemn, in the determination of the fit sentence, a consideration of the effects that the parole regime will have on the manner in which the sentence will be served. There is certainly no clear indication that LeBel J. intended to contradict or qualify the conclusion in Wust that the determination of a fit sentence involves, in part, a consideration of the effects that the parole regime will have on the way in which the offender serves his or her

sentence. Judicial Consideration in Other Jurisdictions [108] The governing constitutional and statutory contexts differ, in some ways markedly. However, it is of interest to note that appellate courts in other common law jurisdictions have found to be punishment various post-sentence changes to parole or early release schemes that increased the duration of an offender's incarceration: see, e.g. Lynce v. Mathias (1997), 519 U.S. 433; Weaver v. Graham (Governor of Florida) (1981), 450 U.S. 24; California Department of Corrections v. Morales (1995), 514 U.S. 499; Pierson v. Secretary of State for the Home Department, [1997] All E.R. 577. [109] I note also that the approaches in Pierson and California Department of Corrections take significant account, in their determination of whether changes to a parole regime are de facto forms of sentencing and therefore punishment, of the exercise of discretion within the regime and the consideration of the particularized circumstances of offenders. Conclusion: The Effect of the Transitional Provision [110] No case authority points clearly to the correct conclusion for this case. Counsel are unaware of any case where the court has been asked to consider the AEPA's Transitional Provision in light of s. 11 of the Charter. The very few authorities which have considered the retrospective effect of other legislative amendments restricting parole

eligibility have done so in relation to s. 11(i) of the Charter, and not s. 11(h). In any event, those authorities stand in conflict with one another, and some of the principles they rely on in applying s. 11(i), do not apply directly here, in the application of s. 11(h). [111] What is clear is that when a sentencing judge delays parole eligibility as part of an offender's sentence, the restriction is "punishment" for the purposes of s.

11. In my view, such an order, overriding the Board's discretion to consider parole, is no different in its effect than delayed parole eligibility brought about by statute. [112] The sentencing and parole regimes have different functions and spheres of responsibility, but they do not exist in separate watertight compartments. Changes to the parole regime enacted through amendments to the CCRA are not for that reason alone incapable of imposing or increasing the "punishment" inherent in the sentences offenders serve. Indeed, the evidence suggests that Parliament enacted the AEPA for that precise effect. While I have given no great significance or weight in the above analysis to the reasons Members of Parliament gave for seeking or supporting the passage of the AEPA, the validity or merit of such comments not being for this Court to adjudicate, I do note that abundant evidence suggests that the amendments were intended to advance the objectives of deterrence, denunciation, and punishment; these are objectives consistent with some of the purposes and principles at play in the sentencing process. Illustrative extracts from Hansard are attached in Appendix A. [113] A liberal interpretation and application of the Charter will tend to consider the actual effect of the measure in issue, and not merely its label or position in the body of governing legislation. The Charter is not so

easily evaded that an unconstitutional provision becomes constitutional when only its form is changed, and not its substance. Here, there can be no real doubt that the AEPA amendments will have significant actual effect on the way in which the two offenders who are still in prison will serve their sentences. [114] That is not to say that no change can be made to corrections and parole law and policy without distorting the sentence imposed. McLachlin J., in Cunningham, explained that many changes for administrative and other reasons are inevitable and constitutionally unimpeachable: Cunningham, at 152. But, in my view, such changes do not include significant limitations, regardless of any exercise of the Board's discretion, to the parole eligibility of offenders who were sentenced before the legislated changes came into force. When such a change increases the harshness of the sentence, and does so after the judge has imposed it, the change surely occasions additional "punishment". [115] I therefore conclude that the retrospective effect of the AEPA amendments adds "punishment" over and above the punishment which was contemplated in and imposed by the offenders' sentences. The Transitional Provision therefore violates the offenders' rights under s. 11(h) not to be "punished . . . again" for their offences. IS THE VIOLATION JUSTIFIED UNDER SECTION 1? [116] The defendant submits

that if the Transitional Provision infringes s. 11(h), it does so as a reasonable and demonstrably justified limit on that right, prescribed by law, and s. 1 of the Charter therefore allows it to stand. Section 1 reads as follows: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. [117] The test for determining whether a violation of the Charter is justified under s. 1 was articulated by Dickson C.J. in R. v. Oakes, [1986] 1 S.C.R. 103 at 138-139. The Supreme Court of Canada recently reaffirmed this test in Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. at para. 64. [118] The test's four-part analysis is divided into two stages. First, the court must be satisfied that the law's objective is of sufficient importance to justify limiting a Charter right. A sufficiently important objective is one which "advance[s] concerns that are pressing and substantial in a free and democratic society": Oakes, at 138-139. [119] Second, the court applies "a form of proportionality test" balancing the interests of society with those of individuals and groups. To be justified under s. 1, the impugned law must satisfy three criteria at this stage: (1) the law must be rationally connected to its objective; (2) the law must impair the infringed right no more than is necessary to accomplish the objective; and, (3) the law must not have a disproportionately severe effect on the persons to whom it applies: Oakes, at 138-139. [120] The onus of establishing that the means chosen are reasonable and demonstrably justified is on the party invoking s.

1. The standard of proof is the balance of probabilities: Oakes, at 138. The party invoking s. 1 need not provide empirical proof in a scientific sense. The court may rely on the application of logic and common sense to what is known about the problem: Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827 at paras. 77-79. What is required is "rational, reasoned defensibility": RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 at para. 127. [121] The Transitional Provision fails this test because the defendant has not established that the provision impairs the plaintiffs' right as little as possible in order to achieve the government's objective in the AEPA. The defendant's evidence includes abundant reference to the objective, which I accept as pressing and substantial, of ensuring that sentences as administered respond properly to the sentences courts impose; by extension, the objective includes maintaining or restoring public confidence in the administration of justice. However, the evidence includes no meaningful explanation of why the amendments must operate retrospectively in order to achieve this objective. It is of note in this regard that an earlier version of the AEPA amendments would not have had retrospective effect.[5] [122] Justification for retrospective effect could be argued to be inherent in the concept of "restoring"

confidence in the administration of justice (thus requiring the amendments to have immediate effect on all sentenced offenders). The evidence includes numerous references to public outcry about the prospect of certain named offenders gaining supervised release by way of APR. However, the evidence is silent about whether less intrusive measures could have achieved the legislative objective without wholesale abolition of APR on a retrospective basis. None of the reports or studies to which the defendant refers as having led to the AEPA suggest a need for retrospective application. [123] The Transitional Provision has therefore not been shown to impair s. 11(h) no more than is necessary to accomplish the AEPA's objective.

REMEDY [124] The defendant asks that any declaration of invalidity be suspended for six months to allow Parliament to amend the current legislation as appropriate. [125] To suspend a declaration of invalidity is a serious matter, because the suspension "allows a state of affairs which has been found to violate standards embodied in the Charter to persist for a time despite the violation": Schachter v. Canada, [1992] 2 S.C.R. 679 at 716. Lamer C.J. there held that a suspension will be appropriate when to give immediate effect to the court's ruling would pose a danger to the public, would threaten the rule of law, or would result in the deprivation of benefits from deserving persons: Schachter, at 715-716. A suspension may also be appropriate where an immediate declaration of invalidity would create a lacuna in a statutory regime before Parliament has a chance to act to repair it: R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489 at para. 57. [126] I am not persuaded that the situation here falls within any of the situations the Supreme Court of Canada has so described or that for any other reason it warrants a suspension. No legislative void would exist without the Transitional Provision: for the plaintiffs and other offenders sentenced before March 28, 2011, the APR provisions will continue to apply as they have done for many years. To allow the Transitional Provision to continue

in effect would be to allow a continuing violation of the rights of at least two of the plaintiffs in a time-sensitive situation. The AEPA came into force over a year ago and the sentences of many offenders who would previously have been eligible for APR are relatively short, such that to suspend the declaration of invalidity would to a large degree render the declaration moot. [127] The Transitional Provision in s. 10 of the AEPA violates s. 11(h) of the Charter and is not valid to the extent that it makes the AEPA apply retrospectively to offenders sentenced before March 28, 2011, when the AEPA came into force. [128] This declaration has immediate effect. "H. Holmes, J." The Honourable Madam Justice H. Holmes APPENDIX "A" House of Commons Debates VOLUME 145 - NUMBER 131 - 3rd SESSION - 40th PARLIAMENT Tuesday, February 15, 2011 ... Mr. Paul Calandra (Oak Ridges-Markham, CPC): ... All offenders must be held accountable for the crimes they commit. Bill C-59 [the AEPA] is all about accountability, about offenders serving appropriate sentences for the crimes committed. That is what we call justice. Bill C-59 would ensure that all offenders will be treated equally, regardless of the nature of the crime they commit, when it comes to eligibility for parole. Currently, there is a distinction made between crimes committed with or without violence. Parole, in cases of non-violent

crime, is presumptive, meaning that the Parole Board of Canada must automatically release the offender into the community under supervision unless it has reasonable grounds to believe that the offender will commit a violent offence if released. That does not seem fair to me. Fraud and white-collar crimes must not have been committed with violence but the victims are harmed nonetheless. Lives are ruined, entire life savings are lost and the physical, psychological and emotional harm resulting from these crimes can be equally as devastating. Can we honestly say that justice has been served when an offender who has received a sentence befitting the crime walks out of jail well before the sentence has been served? In essence, many victims are essentially re-victimized by the relatively short amount of time that offenders spend behind bars for their crimes. ... Those fraudsters, the ones who may have duped many and literally destroyed lives, will not be denied parole and will only serve a fraction of their time behind bars. Without grounds to believe a violent offence will be committed, the Parole Board of Canada simply has no other choice but to grant parole. The special treatment afforded to these offenders has to end. All other offenders are subject to a very different standard, one at instills, rather than undermines, confidence in our justice system. ... The parole board simply

does not have the discretion is [sic -- it?] so sorely needs in these cases. Bill C-59 would bring about that change, which is why I stand here in the House and turn to my hon. colleagues and ask them to ensure timely passage of this bill. ... Mr. Bernard Genereux (Montmagny-L'Islet-Kamouraska-Riviere-du-Loup, CPC): ... ... Of course, the bill before us today is not motivated by such a radical cultural change [as followed September 11, 2001], but it contains changes made necessary by the rapid rise in crimes like fraud over the past two decades. I believe that in Quebec in particular we have seen some completely unacceptable cases of fraud. Obviously it is never acceptable to commit fraud, but you know what I mean, in that it is important for people who commit this type of crime to be punished accordingly. ... It is rather unbelievable, when you think about it. Imagine that a fraudster caused you to lose everything you own, and after a year, a year and a half or two years, he is completely free and goes back to his life as though nothing happened. That is completely unacceptable. I am sure that hon. members will agree that that is completely unfair. Our government believes that this system is outdated and that it must be changed quickly. ... Furthermore, Bill C-59 is a direct response to the recommendations in the 2007 report of the Correctional Service Canada Review Panel. The

report, which made 109 recommendations, expressly stated that the accelerated parole review process should be abolished. Our government studied these recommendations and committed to following through on this recommendation so that all offenders are treated equally when it comes to eligibility for parole. This amendment will ensure that white collar criminals, such as people who have been convicted of fraud, are no longer able to apply for day parole after serving only one-sixth of their sentence. They will have to wait until they have served at least six months before being eligible for full parole, like any other offender. It will also ensure that white collar criminals participate in their parole hearings and plead their case in person before the NPB. ... I almost feeling like turning the hon. member's question right back to him. If he were a victim right now, would he not want all members of the House of Commons of Canada to do everything they could to pass some sort of legislation? We have before us an excellent bill to ensure that these things never happen again and, if they do, to punish the criminals for their crimes. ... Mr. Speaker, I appreciate my colleague's question. Clearly the bill aims to speed up procedures so that they may begin as soon as possible. I think the Bloc Quebecois members have understood how important it is to push this bill through quickly. It

needs to be done as soon as possible. It is extremely important that this bill pass today, if possible, and if not, then in a few days or weeks so that it may become law as soon as possible. Thus, we will be able to punish people in a way that corresponds to their crimes. ... Ms. Candice Hoeppner (Portage-Lisgar, CPC): ... I have heard from victims who have told me that they are tired of seeing and hearing about offenders who have perhaps wiped out their life savings and are not serving appropriate times for their actions. I have spoken to ordinary Canadians and to the families of innocent victims and they told me that it was time for all of us to work together to crack down on the activities of white-collar offenders who might not use a gun but who, nonetheless, wreak havoc on the lives of hard-working and law-abiding Canadians. They told me that we need to get tough on those offenders whose illegal activities leave scores of victims in their wake. ... Ms. Judy Foote (Random-Burin-St. George's, Lib.): Bill C-59 is hastily prepared legislation that introduces sweeping changes to the Criminal Code that would alter the parole rules for every non-violent first-time offender, regardless of the severity of the crime. The Bloc struck a backroom deal with the Conservatives, which we know, to fast-track the bill without any serious committee study or consultation with victims.

Interestingly enough, the Quebec bar has said that it does not agree with the position that has been taken by the Bloc. In fact, it said: Firstly, the Bar is opposed to the retroactive effect of the proposed legislation. ... we would like to point out that some people chose to plead guilty after considering the advantages of accelerated parole. Changing the sentencing rules after these people have made their decisions and their choices is unfair and opens the door to constitutional challenges. Secondly, the Quebec Bar believes that before this bill is passed, it should go through the same process as all legislation, Including a thorough study of the advantages and disadvantages of the current legislation and an impact study of the proposed changes. The findings of these studies should be made public so that there can be informed debate on this issue. ... Ms. Candice Hoeppner (Portage-Lisgar, CPC): Madam Speaker, I was somewhat confused by the comments of my hon. colleague [Ms. Judy Foote, quoted in part immediately above]. Maybe she can clarify this for me. In one sense I hear the member speak about victims and that we need to stand up for victims of white-collar crimes. At [...] the same time, she says that the bill should not be retroactive. Unfortunately for the victims of Earl Jones, if this bill is not retroactive, these victims will never have any kind of justice

served. This is what one of the victims of Earl Jones has to say: Do you know what it feels like to be ready to retire, knowing you have enough money to enjoy your home and to do some travelling, but suddenly to have the carpet pulled from under your feet? We have gone through this because of Earl Jones and the fraud he perpetuated for so long. We have lost our nest egg, as well as the money we wanted to leave to our children. We have had to go back to work. We don't want to see this man out on parole as early as next December. This is not a good system. Please work with the other parties to come to a good conclusion for all of us that have been victims of "white collar crime". What would my hon. colleague have to say to the victim of Earl Jones who wants him to receive justice for this crime? ... Mr. Ben Lobb (Huron-Bruce, CPC): ... These schemers and fraudsters are not fools; they are highly intelligent individuals who are lacking moral fibre and who prey on their victims. They realize that if they are caught, they will get out. They know that. Therefore, when we look at costs, we have to complete the loop and follow the full circle and realize that once these fraudsters and schemers know that accelerated parole is no longer available for them any more, they will think twice before they go down the path of Earl Jones. There is no doubt about that. . . . [emphasis added] [1]

,Abolition of Early Parole Act, S.C. 2011, c. 11. [2] Corrections and Conditional Release Act, S.C. 1992, c. 20. [3] The National Parole Board became known as the Parole Board of Canada as of June 13, 2012: see S.C. 2012, c. 1, s. 73. [4] In particular, H. Dumont, Pénologie: Le droit canadien relatif aux peines et aux sentences (1993), at p. 151, which describes the decision in R. v. Wilmott, (1966-67) 49 C.R. 22 (Ont.C.A.) [5] Bill C-53: Protecting Canadians by Ending Early Release for Criminals Act, LS-699E, January 29, 2010.