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The Federal Court held that ITOA s. 28 applied to APR-day-parole cases and answered preliminary questions on estate standing to claim Charter damages.
The Federal Court certified a class proceeding over Charter damages claims arising from the Abolition of Early Parole Act, and rejected the defendant’s added preliminary question.
Federal Court certified a proposed class action over AEPA-related Charter damages claims and rejected the Crown’s proposed extra dispositive common question.
The Federal Court held that APR was a one-time process spent after denial of APR day parole, so later full parole reviews followed the regular parole criteria.
The AEPA's retrospective abolition of the accelerated parole review regime increased objectively ascertainable incarceration risk between commission and sentencing and therefore varied punishment within the meaning of s.11(i); the government failed the s.1 minimal impairment test, so the infringement is not justified.
Source excerpt
The abolition of APR by the AEPA, as applied to an offender sentenced after the AEPA for offences committed before it, appreciably increased the period of incarceration the offender could reasonably expect under the prior regime and therefore constituted a variation in punishment within s.11(i) of the Charter; accordingly the appellant was entitled to the APR regime that existed at the time of his offence.
Source excerpt
The abolition of APR by the AEPA as applied to offenders who committed offences before but were convicted and sentenced after the AEPA resulted in an appreciable increase in the punishment they would face compared to the regime in place at the time of their offences, thereby violating s.11(i) of the Charter; that infringement is not justified under s.1, and affected appellants are entitled to the APR regime that previously applied.
Source excerpt
The court adjourned constitutional petitions challenging the AEPA, but only briefly, to allow more hearing time and a sworn affidavit. It declined to wait for Whaling.
The court held that the retrospective repeal of accelerated parole review was additional punishment under s. 11(h) and was not justified under s. 1.
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