Court of Appeal for Ontario
Judges: Doherty, LaForme and Paciocco JJ.A.
Between
Her Majesty the Queen Respondent
and
Cherrylle Dell Appellant
Counsel:
- Howard L. Krongold, for the appellant
- Roger A. Pinnock, for the respondent
Heard: October 17, 2017
On appeal from: The order of Justice Robert L. Maranger of the Superior Court of Justice, dated May 5, 2015, with reasons reported at 2015 ONSC 1570, 334 C.R.R. (2d) 289, and the order dated January 19, 2016, with reasons reported at 2016 ONSC 505.
I. Overview
1The sentencing provisions for murder in the Criminal Code have a unique feature. Offenders who have received a life sentence without eligibility for parole for more than 15 years can apply to a jury after 15 years for a reduction in their period of parole ineligibility. The Criminal Code provisions governing those applications have changed over the years. Those changes have, by and large, limited an offender's chances of obtaining a reduction in the period of parole ineligibility. This appeal focuses on the constitutionality of the principal legislative change – the introduction of a judicial screening mechanism into the process governing applications for a reduction in the period of parole ineligibility.
2When the appellant committed first degree murder in 1995, she was entitled to bring an application directly before a jury for a reduction in the period of her parole ineligibility after serving 15 years of her sentence. However, by the time she was eligible to bring that application, the legislation had been amended requiring her to first convince a judge, on a written record, that there was a "substantial likelihood" that her application would succeed before the jury. This appeal focuses on the constitutionality of this judicial screening mechanism under ss. 11(h) and 11(i) of the Charter when applied to offenders who committed murder prior to its introduction.
3For the reasons that follow, I agree that the application of the judicial screening mechanism to the appellant's application for a reduction in her parole ineligibility contravened her right under s. 11(i) of the Charter. The screening mechanism substantially decreased her chances of obtaining some reduction in parole ineligibility. Viewed functionally and pragmatically, the implementation of the judicial screening mechanism constituted an increase in the punishment attaching to her murder sentence, and she has the right to the benefit of the lesser punishment that existed at the time she committed the offence. I am also satisfied that the Crown cannot justify the infringement under s. 1 of the Charter. The appellant is entitled to have her "faint hope" application heard by a jury.
II. Factual Background
4The appellant murdered her husband in December 1995. She was arrested in December 1997 and convicted of first degree murder in February 2001. The trial judge imposed the mandatory sentence of life imprisonment without eligibility for parole for 25 years. The appellant has been in custody since her arrest. Her sentence runs from the date of her arrest.
5Under the Criminal Code provisions as they stood when the appellant committed the murder, she was entitled, after 15 years in custody, to apply for a reduction of the 25-year period of parole ineligibility. The application was to be heard by a jury empanelled for that reason.
6The appellant brought her application in 2013, 15 years and 3 months after the commencement date of her sentence. By that time, the relevant legislative scheme had undergone several changes. Most significantly, the application for a reduction in the period of parole ineligibility no longer went directly before a jury. Instead, the application was first vetted by a judge. Only if that judge were satisfied, based on a written record, that "there [was] a substantial likelihood that the application [would] succeed" would the judge then direct that a jury be empanelled to consider the merits of the application. If the judge were not so satisfied, the application would go no further. Another application could not be brought for at least five years.
7The judicial screening mechanism, which first came into effect in 1997 and was amended in 2011, applies to all applications for review of parole ineligibility. This includes applications, like this one, brought by individuals who committed the murder before the statutory creation of the judicial screening mechanism. On her application, the appellant argued that the retrospective application of the screening provisions infringed her constitutional rights under ss. 7, 11(h) and 11(i) of the Charter. The application judge rejected this submission in his reasons reported at R. v. Dell, 2015 ONSC 1570, 334 C.R.R. (2d) 289 ("Dell #1"). In subsequent reasons, reported at R. v. Dell, 2016 ONSC 505 ("Dell #2"), he also concluded that the appellant had not satisfied him that there was "a substantial likelihood" that her application would succeed before a jury. He declined to empanel a jury.
8The appellant appeals pursuant to s. 745.62 of the Criminal Code. She challenges only the constitutional ruling, renewing her argument that the judicial screening provision cannot be constitutionally applied to her application for a reduction in her period of parole ineligibility. She maintains that she is entitled to have her application considered by a jury.
9If the constitutional argument fails, the appellant does not quarrel with the application judge's finding that she did not meet the test for empanelling a jury.
10The facts relevant to the commission of the murder and the merits of the appellant's claim that her period of parole ineligibility should be reduced are not germane to the constitutional arguments. They are fully addressed in the reasons of the application judge in Dell #2. It is sufficient to record his conclusion, at para. 38 of that decision:
After considering the evidence regarding the character of the applicant, her overall conduct while incarcerated, and the offence she committed, I asked myself the question: on a balance of probabilities is there evidence upon which a reasonable jury, acting judiciously, would be substantially likely to award a reduction in the applicant's parole ineligibility period? In this case the answer in my view is very clearly no.
III. The Statutory Evolution of the "Faint Hope" Clause
11In 1976, after decades of debate in Canada, Parliament abolished the death penalty. As part of the package of amendments that brought about that abolition, Parliament divided murder into two categories for sentencing purposes. First degree murder was punishable by life imprisonment without eligibility for parole for 25 years. Second degree murder was punishable by life imprisonment without eligibility for parole for a minimum of 10 years and a maximum of 25 years. In the case of second degree murder, the trial judge fixed the period of parole ineligibility as part of the sentencing. In doing so, she took into account any recommendation as to parole ineligibility made by the jury: Criminal Law Amendment Act (No. 2) 1976, S.C. 1974-75-76, c. 105, ss. 4, 5, and 21.
12In addition to abolishing the death penalty and imposing mandatory life sentences with lengthy periods of parole ineligibility, Parliament introduced what came to be known as the "faint hope" clause with a view to mitigating those lengthy parole ineligibility periods. Persons sentenced to life imprisonment without eligibility for parole for more than 15 years could apply for a reduction of the period of parole ineligibility after 15 years: Criminal Law Amendment Act (No. 2) 1976, s. 21; Allan Manson, "The Easy Acceptance of Long-Term Confinement in Canada" (1990), 79 C.R. (3d) 265.
13As originally enacted, the "faint hope" clause allowed a person who had served 15 years of a life sentence, and who had been sentenced to a period of parole ineligibility in excess of 15 years, to bring an application for a reduction in the period of parole ineligibility. That application was made to the Chief Justice of the Superior Court of the province or her designate. The Chief Justice was then required to empanel a jury to hear the application: Criminal Law Amendment Act (No. 2) 1976, s. 21.
14The jury was required, under the relevant provisions in the Criminal Code, to consider the applicant's character, conduct while serving the sentence, the nature of the offence, and any other matter deemed relevant by the presiding judge. If two-thirds of the jury favoured reducing the period of parole ineligibility, the jury could substitute a lesser period of parole ineligibility, or terminate the applicant's ineligibility for parole. The ultimate decision to grant or refuse parole remained with the National Parole Board: Criminal Law Amendment (No. 2) 1976, s. 21.
15Apart from identifying factors to be considered, the statutory provisions said nothing about how the jury was to go about its assessment. In R. v. Swietlinski, 1994 CanLII 71 (SCC), [1994] 3 S.C.R. 481, at pp. 492-94, Lamer C.J. referred to the "faint hope" procedure as "original in several respects". He noted that the jury was required to reassess parole ineligibility, armed with new information and insights developed over the 15 years the applicant had spent incarcerated. The jury's discretion, while guided by the factors enumerated in the section, could not be captured by any specific legal test or controlled by any judicial instruction. He said, at p. 494:
Accordingly, the concepts of burden of proof, proof on a balance of probabilities, or proof beyond a reasonable doubt are of very limited value in a hearing pursuant to s. 745, where the decision lies exclusively in the discretion of the jury. The jury must instead make what it, in its discretion, deems to be the best decision on the evidence.
16In R. v. Vaillancourt, 1989 CanLII 7181 (ON CA), 49 C.C.C. (3d) 544 (Ont. C.A.), Brooke J.A., speaking for this court, at pp. 550-51, referred to the "faint hope" clause as "a special procedure" aimed at providing input on the potential release of the offender from the members of the community as represented by the jury. As he put it, "it is for the jury to decide".
17Callaghan A.C.J., who had presided over the original application in Vaillancourt, described the jury's function in these terms in his decision reported at (1988), 1988 CanLII 7121 (ON SC), 43 C.C.C. (3d) 238 (Ont. H.C.), at pp. 246-47:
The jury under s. 672(2) is undertaking a review process in the course of which they must consider the applicant's good conduct, and are given specific criteria to be applied in coming to their decision. But that jury does not again determine the degree of denunciation. With reference to the character of the applicant, his conduct while incarcerated and the circumstances of the offence, the jury determines whether or not present circumstances justify leniency and an early consideration of the applicant's case by the parole board. [Emphasis added.]
18In 1995, the "faint hope" clause was amended by adding the requirement that the jury consider information from any victims provided either at sentencing or at the "faint hope" hearing before the jury: An Act to Amend the Criminal Code (Sentencing) and Other Acts in Consequence Thereof, S.C. 1995, c. 22, s. 6. That amendment does not figure into this constitutional challenge.
19In 1996, Parliament made three changes. First, Parliament introduced a judicial screening mechanism. The "faint hope" applicant no longer had an automatic right to a hearing before a jury. Instead, the application went first to the Chief Justice or her designate to determine whether, on the basis of written material only, the applicant had shown, on a balance of probabilities, that there was a "reasonable prospect" that the application would succeed before a jury. A jury was empanelled to consider the application only if the Chief Justice or her designate was satisfied that there was "a reasonable prospect" of success: An Act to Amend the Criminal Code (Judicial Review of Parole Ineligibility) and Another Act, S.C. 1996, c. 34, s. 2.
20The judicial screening criterion established in 1996 was judicially interpreted as setting a relatively low bar intended to prevent applications being brought before a jury that had no realistic chance of success. The purpose of the provision was twofold. First, to save friends and relatives of the victims of the murders the needless pain and anguish of going through a "faint hope" hearing before a jury when the applicant had no realistic chance of success. Second, the screening process was intended to avoid wasting jurors' time and judicial resources on hopeless applications: see R. v. Jenkins, 2014 ONSC 3223, 310 C.C.C. (3d) 248, at paras. 20-22; R. v. Phillips, 2011 ONSC 1914, at paras. 6-9, aff'd 2012 ONCA 54, 288 O.A.C. 351, at paras. 6-7; R. v. Rochon, 2011 ONSC 5061, at paras. 6-7; R. v. Oczko, 2012 ABQB 121, 535 A.R. 59, at paras. 4-13.
21The second change introduced in the 1996 amendments required that a jury's decision to reduce the period of parole ineligibility be unanimous rather than as previously provided, by a two-thirds majority. If the jury unanimously decided to reduce the period of parole ineligibility, the actual period of parole ineligibility could be fixed by the vote of two-thirds of the jury: An Act to Amend the Criminal Code (Judicial Review of Parole Ineligibility) and Another Act, s. 2. The appellant does not allege that this amendment runs afoul of ss. 7, 11(h) or 11(i).
22The third change related to persons convicted of more than one murder. Such offenders could not apply for a reduction in their period of parole ineligibility. This provision applied to offenders who committed at least one of the murders after the amendment came into force: An Act to Amend the Criminal Code (Judicial Review of Parole Ineligibility) and Another Act, ss. 2 and 6. It does not apply to the appellant and is not a part of her constitutional challenge.
23The 1996 amendments, except the provision relating to multiple murders, were applied retrospectively to crimes committed before the amendments came into force on January 9, 1997: An Act to Amend the Criminal Code (Judicial Review of Parole Ineligibility) and Another Act, s. 7.
24The "faint hope" legislation was amended again in 2011. Parliament repealed the judicial screening provision introduced in 1996 and replaced it with a provision that allowed the application to go to a jury only if the judge was satisfied, on the balance of probabilities, that there was "a substantial likelihood" that the application would succeed: An Act to Amend the Criminal Code and Another Act, S.C. 2011, c. 2, s. 4(1). The amendments also limited the number of "faint hope" applications that an offender could bring, and placed strict timelines on the bringing of a "faint hope" application: An Act to Amend the Criminal Code and Another Act, ss. 3 and 6. These provisions came into force in December 2011 and were also retrospective, thereby applying to crimes committed before their enactment: An Act to Amend the Criminal Code and Another Act, s. 3(2).
25The 2011 amendments to the judicial screening process imposed a significantly more stringent test than had the 1996 amendments: see Jenkins, at paras. 14, 26-32; R. v. Gayle, 2013 CanLII 57631, (Ont. S.C.) at paras. 7-12; R. v. Morrison, 2012 ABQB 619, 551 A.R. 149, at para. 42; R. v. Paul, 2014 ONSC 1285, at paras. 4-8; R. v. Point, 2016 ABQB 496, at paras. 17-37.
26The overall impact of the amendments to the "faint hope" clause on the appellant's application for a reduction in her parole ineligibility can be summarized as follows. When the appellant committed the murder, she was entitled under the Criminal Code to go before a jury after serving 15 years and ask the jury to reduce her period of parole ineligibility. She could testify, call other viva voce evidence and make arguments on that evidence to the jury to support her request. The jury was required to consider the criteria set out in the statute, but the statute imposed no legal restrictions on the jury's exercise of its broad discretion: see R. v. Rowe, 2015 ONSC 2576, 324 C.C.C. (3d) 57, at para. 18; Jenkins, at paras. 41-42. If the applicant convinced two-thirds of the jury that some reduction in her parole ineligibility was appropriate, the period of parole ineligibility would be reduced accordingly.
27When the appellant was sentenced in 2001, the legislation no longer provided for direct access to a jury on a "faint hope" application. The appellant had to satisfy a judge, based on a written record, that there was a "reasonable prospect" of success. If the appellant cleared that hurdle, she then had to convince a jury that some reduction in the period of parole eligibility should be granted.
28By the time the appellant was actually eligible to bring her "faint hope" application in 2013, the legislation had changed again. As of that date, she could not get her plea before a jury unless she could first satisfy a judge, on a written record, that there was "a substantial likelihood" that her application would succeed before a jury.
29If the appellant was able to get past the judicial screening phase, the factors to be considered by the jury in deciding whether to reduce the period of parole ineligibility remained virtually unchanged from the inception of the "faint hope" provision, as did the entirely discretionary nature of the jury's decision.
IV. Constitutional Analysis
A. The Relevant Charter Provisions
30The appellant relies principally on ss. 11(h) and 11(i) of the Charter. Those sections provide:
Any person charged with an offence has the right
(h) … if finally found guilty and punished for the offence, not to be tried or punished for it again; and
(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.
31Both s. 11(h) and s. 11(i) put constitutional limits on the punishment of persons convicted of an offence. Section 11(h) prohibits punishing a convicted person more than once for the same offence. Section 11(i) gives the offender the benefit of the lesser penalty if the penalty for the offence is varied between the time of the commission of the offence and the time of sentencing.
32Section 11(h) promotes finality and fairness in the sentencing process by enjoining state conduct that adds to the punishment already imposed for the offence. As Pomerance J. aptly put it in Jenkins, at para. 51, s. 11(h) "crystallize[s] punishment at the time that sentence is imposed". Section 11(i) enhances the predictability and fairness of the sentencing process by identifying the applicable sentencing provisions when those provisions have been changed in the course of the process, and by preventing the retrospective application of harsher penalties: see R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at paras. 22-27, 39; Whaling v. Canada (Attorney General), 2014 SCC 20, [2014] 1 S.C.R. 392, at paras. 34-38; Canada (Attorney General) v. Lalonde, 2016 ONCA 923, 133 O.R. (3d) 481, at para. 11.
33The protections afforded by the aspects of ss. 11(h) and 11(i) discussed in the preceding paragraphs apply only if the challenged state conduct amounts to "punishment". Given the closely shared rationale of the two sections, it is not surprising that the jurisprudence has moved toward a common understanding of the meaning of punishment in both sections: see R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at paras. 22, 59-63; K.R.J., at para. 39.
34The two sections apply in different factual circumstances. Section 11(i) is applicable if there has been a change in the penalty, whether an increase or a decrease, between the date when the offence was committed and the date when the sentence is imposed. Section 11(h) looks forward from the date of sentencing and applies to legislation or other state action that is said to increase the punishment imposed on the offender at the time of sentence.
35The case law arising out of the repeal of certain early parole provisions provides a good example of the different situations in which the two sections operate. In cases in which early parole was repealed after the offender had been sentenced, the offender mounted a constitutional challenge under s. 11(h), alleging double punishment. The offender argued that by taking away his right to early parole, the state imposed a second and additional punishment for the offence: see Whaling, at paras. 57-60. In contrast, in those cases in which the early parole provisions were repealed between the commission of the offence and the sentencing, offenders relied on s. 11(i), arguing that they were entitled to the benefit of the "lesser punishment" that is, the parole regime that included access to early parole: see Canada (Attorney General) v. Lewis, 2015 ONCA 379, 126 O.R. (3d) 289; Liang v. Canada (Attorney General), 2014 BCCA 190, 311 C.C.C. (3d) 159, at paras. 1-5, 36-40, leave to appeal refused, [2014] S.C.C.A. No. 298.
36The application of s. 11(h) and s. 11(i) to the appellant's claim that the "faint hope" provisions violate those sections is unfortunately not quite as straightforward as is their application to challenges to the repeal of the early parole provisions. The judicial screening provisions were introduced into the "faint hope" procedure in 1996 between the date when the appellant committed the murder (1995) and the time when she was sentenced (2001). Based on this chronology, the appellant could have challenged the constitutionality of the judicial screening provision under s. 11(i) at the time she was sentenced in 2001. The ability to make that challenge was, however, theoretical only. She had no right to apply for any reduction in her parole ineligibility until she had served 15 years of her sentence and there would seem to be little purpose in addressing, on a purely hypothetical basis, the constitutionality of the legislation governing an application which the appellant could not bring for several years.
37By the time the appellant was able to bring an application for a reduction in her parole ineligibility, the initial judicial screening provision had been repealed, and replaced by the stricter 2011 version. If the appellant wanted to argue that the 2011 amendments constituted additional punishment, she could arguably not rely on s. 11(i) since the 2011 amendments came into effect long after she had been sentenced in 2001. The appellant could challenge the 2011 amendments under s. 11(h) and allege that the increased level of judicial screening constituted a form of additional punishment. However, if the appellant took this tactic, she could not challenge the judicial screening mechanism itself, since it was in place when she was sentenced in 2001. She could only challenge the increase in the level of judicial screening between 2001 and 2013 when she brought her application. On the approach outlined above, the appellant would not have the opportunity to argue that s. 11(h) and/or s. 11(i) required that her "faint hope" application be treated as it would have been when she committed the murder.
38The appellant's fundamental complaint is with the insertion of the judicial screening process into the "faint hope" procedures. She argues that judicial screening fundamentally changes the entire process in a manner prejudicial to her liberty interests. She further contends that the amendment in 2011, by ratcheting up the level of judicial scrutiny, further aggravated the punitive effect of inserting judicial screening into the process. The merits of the appellant's fundamental complaint should not be left unaddressed by a narrow reading of s. 11(h) and s. 11(i). Instead, I think the provisions, and in particular the phrase "the time of sentencing" in s. 11(i), should be read generously to allow the appellant's full claim to be tested on its merits.
39Sentencing for murder involves a unique two-step process. The first step is taken when the sentence is imposed and the second occurs if and when an application for a reduction of the period of parole ineligibility is made. Even though the second part of the process occurs after the person has served at least 15 years of her sentence, for the purposes of s. 11(i), I think the "time of sentencing" can encompass both steps in the process. On this approach, s. 11(i) allows the appellant to compare the "faint hope" provisions as they existed when she brought her application for a reduction in her parole ineligibility in 2013 with those provisions as they read when she committed the offence in 1995. If the 1995 provisions provided for a "lesser punishment" than the provisions as they read in 2013, the appellant is entitled to the application of the 1995 provisions, subject to s. 1 of the Charter.
40My interpretation of "the time of sentencing" finds some support in R. v. Olah, 1997 CanLII 3023 (ON CA), 33 O.R. (3d) 385 (C.A.), at pp. 404-05, leave to appeal refused, [1997] S.C.C.A. No. 549. The court in Olah held that the phrase "time of sentencing" in s. 11(i) should be read as reaching the time at which an appeal court reviews the fitness of a sentence imposed at trial. Changes in sentencing provisions made between the trial and the appeal, which increased or decreased the sentence for the offence as it stood when the crime was committed, were subject to review under s. 11(i). The Quebec Court of Appeal reached a similar conclusion in R. v. Dussault, 1993 CanLII, 58 Q.A.C. 188, at para. 15. While the analogy between appellate review of a sentence and a "faint hope" application is far from exact, I think the jury's function in the "faint hope" proceeding is a form of review of the sentence imposed at trial.
B. The Arguments
41The appellant submits that the order declaring she was ineligible for parole for 25 years was part of her sentence and punishment. She further submits that the "faint hope" process in place when she was sentenced was part and parcel of the parole ineligibility component of her sentence. The appellant argues that the amendments to the "faint hope" scheme enacted after her sentencing effectively changed her sentence. She contends that, to the extent those changes increased (even marginally) the possibility that she would spend more time in custody before being released on parole, those changes amounted to additional punishment and violated the prohibition in s. 11(h) or s. 11(i). In support of this analysis, the appellant relies on Rodgers, K.R.J., and much of the analysis in Jenkins, at paras. 63-67. This argument also recently found favour in the British Columbia Court of Appeal: R. v. Simmonds, 2018 BCCA 205, at paras. 88-89.
42The appellant argues that it is self-evident that the imposition of a judicial screening mechanism, particularly one imposing the high level of scrutiny demanded by the 2011 amendments, creates a barrier to successfully obtaining a reduction in parole ineligibility from a jury. It is inevitable, submits the appellant, that some individuals who would have been successful before the jury in obtaining some parole ineligibility reduction, will never get to the jury. She contends that, as the changes to the scheme potentially increase the length of an offender's imprisonment, those changes increase the punishment imposed under the scheme as it existed when the appellant committed the offence in 1995. Consequently, the retrospective application of those changes to her violates s. 11(i) and/or s. 11(h).
43Alternatively, the appellant submits that even if the judicial screening mechanism does not change the sentence imposed, it does change the conditions of the sentence in a way that materially increases the appellant's punishment by significantly increasing the risk of additional incarceration. The appellant submits that the onerous screening provision necessarily significantly reduces her chances of getting before a jury and ultimately obtaining from a jury some reduction in her period of parole ineligibility. The appellant argues that on this view of the 2011 amendments, the analysis in Whaling applies and the changes violate s. 11(h) or s. 11(i) of the Charter.
44The respondent counters with the submission that the analysis in Rodgers and K.R.J. is not helpful. Those were cases that challenged the imposition of specific sanctions as contrary to either s. 11(i) or s. 11(h). In Rodgers, the court had to decide whether a post-sentence order, requiring an offender to provide a DNA sample, constituted additional punishment under s. 11(h). In K.R.J., the court had to decide whether the imposition of probation terms pursuant to Criminal Code provisions enacted after the offender had committed the crimes, but before he was sentenced, violated the prohibition against retrospective increases in punishment in s. 11(i).
45Counsel for the Crown argues that there is no new sanction being imposed on the appellant in this case. The appellant's sentence remains exactly as imposed. Before and after the 2011 amendments, she was serving a sentence of life imprisonment without eligibility for parole for 25 years with the right to seek a reduction in that parole ineligibility period after 15 years. According to the Crown, the changes to the "faint hope" provisions, and in particular the judicial screening requirement, relate only to the means by which the applicant's request for a reduction in parole ineligibility will be processed. Her punishment for the crime of murder is unchanged.
46The respondent contends that the appellant's situation is analogous to that considered in Whaling, where the Supreme Court of Canada considered whether changes in the scheme governing parole eligibility amounted to punishment under s. 11. The respondent submits that the changes to the process by which the "faint hope" application is considered do not, either in their purpose or effect, result in additional punishment under the test enunciated in Whaling.
47Alternatively, the respondent argues that any infringement of s. 11 is justified under s. 1 of the Charter.
C. The Reasons of the Application Judge
48The application judge drew heavily on the reasons in Jenkins, both in tracing the history of the "faint hope" provisions and analysing the judgments in Rodgers and Whaling. He described the "faint hope" provisions and the changes made in those provisions as a "hybrid" that did not fit comfortably into the paradigms presented in either Rodgers or Whaling. In Rodgers, Parliament introduced a mechanism by which sentenced offenders could be required to provide DNA samples for inclusion in a national DNA databank, thereby arguably imposing an additional punishment upon them after sentencing. In Whaling, Parliament repealed the right to early parole for certain offenders, thereby changing the conditions of their sentences in a manner than lengthened their incarceration. In this case, Parliament made changes to an offender's right to apply for a reduction in parole ineligibility, but did not remove that right.
49Ultimately, the application judge concluded that the changes to the "faint hope" process were much closer to the changes in parole eligibility examined in Whaling than to the imposition of an additional post-sentence sanction considered in Rodgers. The application judge said, at para. 22:
It seems to me that a modification to the process used to determine an offender's chance at early parole is akin to a change in the condition of a sentence rather than a change to the ultimate sentence. Thus, Whaling is the appropriate framework to determine the Charter question.
50Ultimately, the application judge held, at para. 29:
I find that [the changes to the "faint hope" provisions] do not increase punishment nor do they fundamentally alter the nature of the sentence imposed at the time of the conviction, Cherrylle Dell's settled expectation of when she could apply for parole was not thwarted by the amendments. She can, and indeed has, applied for the opportunity to seek parole after 15 years of incarceration. While the procedure to arrive at that determination has no doubt changed; her right to apply for a chance of early parole remains.
D. Analysis
51The appellant's challenge to the judicial screening provision as contrary to s. 11(i) raises the following question:
Does the insertion of a judicial screening mechanism that requires the appellant to convince a judge on the balance of probabilities, and on a paper record, that there is a substantial likelihood that a jury will reduce the period of parole ineligibility, result in greater punishment than would be imposed under a provision which provided for an automatic right to put one's case for a reduction in parole ineligibility before a jury?
52The first question that must be answered is whether the judicial screening mechanism constitutes "punishment" as that term has been understood for the purposes of ss. 11(h) and 11(i) of the Charter.
(i) The Meaning of Punishment in s. 11(h) and s. 11(i)
53The "punishment" trilogy (Rodgers, Whaling and K.R.J.) approaches punishment for the purposes of s. 11(h) and s. 11(i) in a manner tailored to the specific circumstances of each case. Sanctions, which are imposed as a consequence of conviction in furtherance of the purpose and principles of sentencing, are viewed as punishment: K.R.J., at para. 41. Similarly, other changes in the terms or conditions of a sentence that thwart or compromise the offender's reasonable liberty or security of the person expectations will be regarded as punishment for the purposes of s. 11(h) and s. 11(i): Whaling, at paras. 57, 60, and 63.
54I accept that the mandatory 25-year period of parole ineligibility and the right to apply for a reduction of that period of parole ineligibility after 15 years are integral parts of the sentence imposed on the appellant for the crime of first degree murder: Jenkins, at paras. 70-74. It does not, however, follow that any legislative change relating to the manner in which the "faint hope" process is implemented or administered necessarily alters the appellant's reasonable liberty or security expectations.
55In deciding whether a particular legislative provision, or other state action, amounts to punishment, the court takes a pragmatic and functional approach, focusing on the actual impact of that legislation or state conduct on the offender's liberty and security interests. In other words, what does the impugned state action actually do to the offender's liberty expectations?: see K.R.J., at paras. 36-41; Whaling, at para. 52.
56In cases like Rodgers and K.R.J., in which the challenged legislation imposed a specific sanction as a consequence of a criminal conviction, the punishment inquiry is relatively straightforward. A sanction imposed as a consequence of a conviction will constitute punishment if either the sanction is imposed pursuant to criminal law sentencing purposes, or the sanction has a significant negative impact on the offender's liberty or security interests: K.R.J., at para. 41. In most cases, sanctions imposed as part of sentence in a criminal proceeding will constitute punishment: R. v. Hooyer, 2016 ONCA 44, 129 O.R. (3d) 81, at para. 43.
57A broad concept of punishment as applied to sanctions imposed in the criminal law context is consistent with the rationale underlying the constitutional protections in s. 11(h) and s. 11(i). Under long-accepted notions of fairness and predictability pertaining to criminal sentencing, offenders reasonably expect that they will not be subject to more onerous criminal sanctions introduced after the crime was committed. Similarly, offenders reasonably expect that they will be sentenced only once and will not be subject to added criminal sanctions imposed at some time after the initial sentencing. The reasonable liberty expectations of the offender are reflected in the rationale underlying s. 11(h) or s. 11(i).
58Legislation or other state conduct that does not impose or alter a criminal sanction may still constitute punishment under s. 11(h) or s. 11(i). Changes in the conditions of an offender's sentence can sufficiently compromise reasonable settled expectations of liberty to constitute additional punishment for the purposes of s. 11(h) and s. 11(i): Whaling, at para. 63. As observed in Whaling, at para. 59, it is a question of degree:
Even where a change to the conditions of a sentence engages a liberty interest under s. 7, it may nonetheless be consistent with the principles of fundamental justice. Some line drawing becomes necessary. In my view, this same basic point applies to a retrospective change that constitutes double punishment in the s. 11(h) context. Some retrospective changes to the parole system affect the expectation of liberty of an offender who has already been sentenced to such an extent that they amount to new punishment, while other changes have a more limited impact and do not trigger Charter protection.
59Like the application judge, at para. 22, I think the situation presented in this case is much closer to the situation in Whaling than those in Rodgers or K.R.J.. The insertion of the judicial screening mechanism into the "faint hope" process does not impose a new sanction or alter the sanction actually imposed. The appellant was serving a sentence of life imprisonment without eligibility for parole for 25 years. She had the right to apply for a reduction of the period of parole ineligibility after 15 years. She remains subject to a life sentence without eligibility for parole for 25 years and with the opportunity to apply for a reduction in her parole ineligibility. The screening mechanism does, however, alter the process by which applications for a reduction in parole ineligibility are processed and determined. Like the changes to parole eligibility challenged in Whaling, the changes to the "faint hope" process can impact on when an offender will be eligible for release on parole. On the analysis in Whaling, that impact may or may not amount to additional punishment for the purposes of s. 11(i) or s. 11(h).
(ii) The Whaling Analysis
60Whaling involved a constitutional challenge to legislation that retrospectively repealed Accelerated Parole Review ("APR") and left prisoners who had previously been able to access early parole subject to the generally applicable parole regime. Under APR, first-time, non-violent offenders, serving penitentiary terms, were eligible for release prior to the usual parole date. APR employed a streamlined, paper review process and a test for parole that presumed eligibility. None of those advantages were available under the "normal" parole provisions.
61Mr. Whaling had been sentenced before the repeal of APR. He was serving his sentence at the time of repeal. Under the terms of the legislation, the repeal of APR applied to all persons serving sentences, even if they had been sentenced before the repeal. The repeal of APR delayed Mr. Whaling's parole eligibility by three months. Other prisoners involved in the litigation had their parole eligibility delayed by as much as 21 months: Whaling, at paras. 16-17.
62Wagner J. (as he then was), writing for the entire court, described the s. 11(h) claim advanced in Whaling as fundamentally different than that considered in earlier cases. Whaling did not involve a second proceeding that imposed a second sanction for the same offence (e.g. R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 S.C.R. 541) or post-sentence legislation authorizing the imposition of some additional sanction as a consequence of conviction (e.g. Rodgers, at paras. 1-2). Wagner J. recognized, at para. 54, that double punishment claims under s. 11(h) could reach "[r]etrospective changes to the conditions of the original sanction which have the effect of adding to the offender's punishment."
63To distinguish those changes in the conditions of a sentence that constituted additional punishment from those that did not, the court focused on the impact of the change on the offender's settled reasonable expectation of liberty, stating, at para. 60:
I will not articulate a formula that would apply to every case, because such a formula is not needed to resolve this appeal and the effect of every retrospective change will be context-specific. That said, the dominant consideration in each case will in my view be the extent to which an offender's settled expectation of liberty has been thwarted by retrospective legislative action. It is the retrospective frustration of an expectation of liberty that constitutes punishment. At one extreme, a retrospective change to the rules governing parole eligibility that has the effect of automatically lengthening the offender's period of incarceration constitutes additional punishment contrary to s. 11(h) of the Charter. A change that so categorically thwarts the expectation of liberty of an offender who has already been sentenced qualifies as one of the clearest of cases of a retrospective change that constitutes double punishment in the context of s. 11(h).
64Wagner J. characterized the retrospective denial of eligibility for early parole, without regard to the individual circumstances of the offender, as a clear case of double punishment under s. 11(h). Offenders reasonably expected that they would be eligible for release on early parole if they qualified under legislation existing at the time they were sentenced. The amendments entirely destroyed that expectation and, in doing so, thwarted the offender's reasonable expectation of liberty: Whaling, at paras. 65-72. Wagner J. went on, at para. 63:
Whether less drastic retrospective changes to parole constitute double punishment will depend on the circumstances of the particular case. Generally speaking, a retrospective change to the conditions of a sentence will not be considered punitive if it does not substantially increase the risk of additional incarceration. Indicators of a lower risk of additional incarceration include a process in which individualized decision making focused on the offender's circumstances continues to prevail and procedural rights continue to be guaranteed in the determination of parole eligibility. [Emphasis added.]
(iii) Applying Whaling to This Case
65I begin by identifying the legislation to which the Whaling analysis must be applied. As set out earlier in these reasons, there was no judicial screening process in place when the appellant committed murder. The 1996 version of the judicial screening mechanism was in force when she was sentenced to life imprisonment without parole for 25 years in 2001, and the 2011 version was in force when she brought her "faint hope" application in 2013. The appellant submits that the 2011 legislation is properly the subject matter of her constitutional challenge.
66In Simmonds, which is chronologically indistinguishable from this case, the British Columbia Court of Appeal accepted the offender's submission that the 1996 legislation, which was in effect when the offender was sentenced, was properly the subject matter of the constitutional challenge, even though it had been repealed and replaced by the 2011 amendments by the time the offender made his "faint hope" application: see Simmonds, at paras. 1-2, 72, 89, 96-97.
67I agree with counsel for the appellant that the operative legislation at the time of the "faint hope" application, that is the 2011 amendments, and not the repealed 1996 amendments, are the proper subject matter of the constitutional challenge. With respect, I would not follow Simmonds on this point.
68In my view, the operative legislation, for the purposes of the constitutional challenge, must be the legislation applied to the appellant's "faint hope" application. The appellant was faced with the "substantial likelihood" test and not with the "reasonable prospect" test. The latter had been repealed. If the legislation, as it was to be applied against the appellant, increased the punishment from the punishment that was in place when the appellant committed murder in 1995, the appellant's right under s. 11(i) would be breached.
69The appellant argues that the 2011 legislation violates s. 11(i) in both its purpose and effect: see Whaling, at paras. 64-71. The appellant submits that the purpose of the 2011 amendments, as applied to persons who had previously committed murder, was to retrospectively reduce the chances that those offenders would obtain a reduction in their parole ineligibility. She submits this is the same thing as saying the purpose of the legislation was to increase the punishment of those offenders.
70The appellant's submission has merit. A review of the legislative history when the 2011 amendments were introduced makes it clear that the government of the day saw the "faint hope" process as detrimental to the proper administration of justice. The Minister of Justice said as much when discussing the Bill containing the 2011 amendments in the Senate:
In my opinion, existence of the faint hope clause reduces people's confidence in the criminal justice system. (Canada, Standing Senate Committee on Legal and Constitutional Affairs, Official Report of Proceedings (Hansard), 40th Parl., 3rd Sess., No. 9 (June 9-10, 2010), at p. 9:11 (Hon. Robert Nicholson, Minister of Justice and Attorney General of Canada))
71The 2011 amendments introduced the "substantial likelihood" test, entirely eliminated the "faint hope" process on a going forward basis, and imposed significant limits on the bringing of "faint hope" applications by those still eligible to bring those applications. The amendments appear designed to limit, to the extent constitutionally possible, an offender's chances of successfully invoking the "faint hope" process to obtain a reduction in the period of parole ineligibility.
72However, I find it difficult in the present circumstances to separate purpose from effect when considering whether this legislation offends s. 11 under the Whaling analysis. I think it is easier under the Whaling analysis to move directly to a consideration of the effect of the legislation on the offender.
73In applying the Whaling analysis, I start by acknowledging two important differences between the effects of the legislation considered in Whaling and the effects of the changes in the "faint hope" process. First, the insertion of the judicial screening procedure into the "faint hope" process does not deny offenders the opportunity to seek a reduction in the period of parole ineligibility from a jury. In that sense, the change in the "faint hope" process effected by the introduction of judicial screening is less severe than the complete elimination of early parole as occurred in Whaling. Second, despite the introduction of a judicial screening process, the "faint hope" inquiry remains focused on the circumstances of the individual offender and continues to provide full procedural protection to the offender. Individualized assessments and procedural protections are "indicators of a lower risk of additional incarceration": Whaling, at para. 63.
74These two differences take this case out of the "clearest of cases" category referred to in Whaling, at para. 60. They are not, however, determinative of the outcome of this appeal. As Whaling and K.R.J. instruct, the analysis must be "functional" and "pragmatic". What exactly do the impugned changes in the "faint hope" process do to the appellant's reasonable liberty expectations?
75First and foremost, the introduction of the judicial screening mechanism took from the appellant the absolute right she had under the legislation, as it existed when she committed murder, to personally, or through counsel, make a plea directly to a jury for clemency as reflected by a reduction in her period of parole ineligibility. Unless one makes the entirely unwarranted assumption that all applications dismissed at the judicial screening stage would inevitably fail before a jury, the insertion of judicial screening means that some offenders, who would have had their parole ineligibility reduced by the jury, lose the benefit of that reduction. The introduction of a judicial screening step in the "faint hope" process that necessarily eliminates some cases from the jury's consideration will inevitably make the overall process less advantageous from the offender's perspective: Simmonds, at para. 94.
76The negative impact of the judicial screening mechanism on the offender's liberty expectations is made all the more obvious by the 2011 amendments. The change from the 1996 standard of "reasonable prospect" to the 2011 standard of "substantial likelihood" means that those applications that have a "reasonable prospect" of success before the jury, but not a "substantial likelihood" of success will be rejected at the judicial screening phase and never get before the jury. Consequently, offenders who, even in the eyes of the reviewing judge, have a reasonable prospect of having their parole ineligibility reduced by the jury will never have the opportunity to make that case to the jury, because they do not clear the greater hurdle of establishing "a substantial likelihood" that the jury would decrease the period of parole ineligibility. Put in functional terms, some offenders, who have a reasonable prospect of obtaining a reduction in their parole ineligibility from a jury, will not after the 2011 amendments ever have the opportunity of putting their case to a jury. They will instead serve their full period of parole ineligibility: see Point, at paras. 30-37; Gayle, at para. 10; Paul, at para. 8; Morrison, at para. 42.
77The impact on the outcome of "faint hope" proceedings caused by the introduction of judicial screening cannot be quantified. No one can say how many applicants who fail at the judicial screening stage would ultimately have succeeded before the jury. There does not appear to be any data available on how many applications fail or succeed at the judicial screening stage.
78The data does, however, indicate that any loss of access to the jury by the offender is a significant loss from the perspective of the offender's liberty interests. Based on the statistics gleaned by counsel for the appellant, derived from Public Service Canada and a legislative background paper, and not challenged by the respondent, the term "faint hope" is a misnomer.
79For example, one paper concluded that about 80% of offenders who had completed their "faint hope" applications before October 28, 1996 succeeded in obtaining some reduction of their period of parole ineligibility. All of these applications went directly to the jury: see Marilyn Pilon, "Murderers' Parole Eligibility: The Evolution of Judicial Review" (Ottawa: Library of Parliament, October 1993, revised March 1997), at p. 4. While the data for the post-judicial screening period is incomplete and in some ways unclear, it still indicates that applications that get before a jury succeed in a significant majority of the cases: see Public Safety Canada, Corrections and Conditional Release Statistical Overview (2015 Annual Report) (Ottawa: Public Works and Government Services Canada, 2016), at pp. 105-106.
80The difficulty in attempting to quantify the effect of introducing judicial screening on the offender's chances of obtaining a reduction in parole ineligibility is made all the more acute by the nature of the decision the jury makes in a "faint hope" proceeding. To a large extent, the outcome of the jury's deliberations defies prediction: Jenkins, at paras. 37-40.
81The jury's function on a "faint hope" application is much different than its function at the end of a criminal case. Verdicts are predicated on the application of legal principles provided to the jury by the trial judge and applied to the facts as found by the jury. In making those findings, the jury is bound by the evidence it hears. On a "faint hope" hearing, the jury has virtually unfettered discretion to allow or deny the application. That discretion is not confined or structured by legal principles or findings of fact. The jury can make a subjective assessment and give the various relevant factors whatever weight it deems appropriate. In the end, the jury decides what the offender "deserves". The jury offers no explanation for the decision and no appeal is available from that decision: Jenkins, at paras. 41-46.
82Save in the obvious cases, I think a judge, reviewing a written record only, would be hard-pressed to make a reliable assessment of how a jury would react to an offender's plea for clemency presented viva voce to that jury. It is misleading to describe the judicial screening phase of the "faint hope" process and the jury phase of that process as part of a single assessment. It is more accurate to view the judicial screening process as a distinct inquiry, intended to limit the jury's power to extend leniency to applicants. Pomerance J., in Jenkins, at para. 46, captures the essence of the judicial screening process:
[I]n faint hope cases, it is always open to the jury, as a matter of law, to allow an application. This flows from the breadth of the jury's discretion. The question for the screening judge is not whether it is open to the jury to reduce parole ineligibility. That option is available in every case. Nor is the question what a jury will actually do in a given case. That requires a level of prescience that no judge can claim. What we are really asking as judges is whether a jury should allow the application.
83The introduction of the judicial screening phase fundamentally alters the dynamic of the "faint hope" process. It does so by placing a significant judicial restraint on the jury's discretion and by requiring that a judge exercise that restraint based entirely on written material. Depersonalization of what is essentially a plea for mercy cannot help the pleader.
84I am satisfied that, viewed functionally and pragmatically, the judicial screening process, as applied to the appellant's application, makes a "significant change" in the "faint hope" process: Jenkins, at para. 99. By imposing a judicial screening process, Parliament limited the jury's power, as the representative of the community, to grant leniency to offenders. The data suggests that the denial of access to the jury substantially increases the risk of longer periods of incarceration for "faint hope" applicants. The 2011 amendments took from the appellant a reasonable expectation that, after 15 years in custody, she would be entitled to ask the community, as represented by the jury, for leniency as reflected in a reduction in her parole ineligibility.
85The introduction of judicial screening worked to the detriment of offenders seeking a reduction in parole ineligibility. I cannot quantify that detriment. The line-drawing exercise referred to in Whaling is very much engaged here. The continued availability of a reduction in parole ineligibility, and the continued individualized nature of the "faint hope" assessment, both argue for a finding that the changes in the process, while detrimental to the appellant, do not increase her punishment.
86Ultimately, however, I am satisfied that the appellant's right to seek a reduction in her parole ineligibility period was meaningfully impaired by the provision which denied her a right to make a plea for that reduction directly to a jury. The requirement that she first convince a judge, on a balance of probabilities, and on a written record only, that there was a "substantial likelihood" that the jury would reduce the period of parole ineligibility significantly increases her risk of additional incarceration. The impact on the appellant's reasonable liberty expectation, while not quantifiable, is very real and significant.
87I would hold that the 2011 amendments to the "faint hope" process increased the "punishment for the offence" when compared to the provisions in place at the time the appellant committed murder. Subject to s. 1 of the Charter, the appellant is constitutionally entitled to the benefit of the lesser punishment as reflected in the "faint hope" provisions as it stood in 1995.
(iv) Is the Limitation Justified Under s. 1?
88Section 1 of the Charter states:
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.
89The application of s. 1 to retrospective penal legislation that infringes s. 11(i) was considered in three separate judgments in K.R.J.. Those judgments yielded three different s. 1 evaluations.
90Section 1 requires the government to show, on the balance of probabilities, that the impugned legislation furthers a governmental objective that is both consistent with the values of a free and democratic society and sufficiently important to justify a limitation on individual constitutional rights. If the government can point to a valid objective, it must show that the means chosen to effect that objective are proportionate to the objective: K.R.J., at para. 58; R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, at pp. 138-139.
91The s. 1 inquiry focuses on the legislation that is the source of the alleged Charter infringement. The appellant does not allege that the judicial screening process is in and of itself contrary to s. 11(i). It is not the judicial screening process that must be justified under s. 1. It is the retrospective application of that process, including the "substantial likelihood" test, to persons who committed murder before the amendments were enacted that must be justified under s. 1: K.R.J., at para. 62.
92Crown counsel submits that the objective of the legislation is to protect friends and families of murder victims from needless re-victimization and unnecessary trauma. The Crown contends that "faint hope" applications before a jury often reopen old wounds and revisit old traumas suffered by the friends and relatives of murder victims. Counsel submits that, while this pain and suffering may be inherent in the "faint hope" process, that re-victimization is needless and cruel in situations in which the offender had no realistic prospect of obtaining any reduction in parole ineligibility. Applications like the one brought by the notorious serial killer, Clifford Olsen, in 1996, are pointed to by the Crown as evidence of the need for legislation to protect victims and family members from needless re-victimization through the bringing of meritless "faint hope" applications.
93The legislative history pertaining to both the 1996 and 2011 amendments indicates that the Crown has correctly identified at least one of the objectives behind the introduction of the judicial screening process. Both Ministers of Justice who introduced the amendments justified the screening mechanism as a means of protecting friends and relatives of murder victims from the needless pain and trauma associated with going through a clearly meritless "faint hope" proceeding before a jury: Canada, House of Commons, Official Report of Debates (Hansard), 35th Parl., 2nd Sess., No. 62 (14 June 1996), at p. 3856 (Hon. Allan Rock, Minister of Justice and Attorney General of Canada); Canada, Standing Senate Committee on Legal and Constitutional Affairs, Official Report of Proceedings (Hansard), 40th Parl., 3rd Sess., No. 9 (June 9-10, 2010), at pp. 9:7-9:9 (Hon. Robert Nicholson, Minister of Justice and Attorney General of Canada).
94The government objective described by the Ministers of Justice is sufficiently important to justify a limitation on an individual's right under s. 11(i). The trauma and re-victimization visited on friends and relatives of murder victims applies equally to applications brought by offenders who committed murder before or after the introduction of the judicial screening mechanism. To prevent that needless trauma, legislation aimed at pre-empting meritless applications before they reach the jury had to be made retrospective: Simmonds, at para. 103.
95The 2011 amendments serve a valid and important societal objective. The question becomes whether their effect is proportionate to that objective: K.R.J., at para. 58.
96In assessing whether the impact on an individual's Charter rights is proportionate to the societal interest served by the legislation, the court must defer, to some extent, to decisions made by the legislature. The legislature cannot be held to an impractical and unattainable standard of perfection when it comes to matching means and ends: K.R.J., at para. 67. A deferential approach is especially warranted in a case like this one. The subjective nature of the jury's decision on a "faint hope" application makes it impossible to define a judicial screening standard that would screen out only cases that would not succeed before the jury.
97Deference cannot, however, justify judicial abdication of its responsibility under s. 1. The court must determine whether the limit on the Charter right imposed by the legislation is reasonably tailored to the legislative objective. If other government measures, having a less harmful impact on the constitutional right, could achieve the same objective "in a real and substantial manner", the legislation fails the proportionality component of the s. 1 test: K.R.J., at para. 70, quoting Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 55.
98The legislative history of the "faint hope" legislation avoids the need to speculate or present hypotheticals as to alternative measures that were available to achieve Parliament's objective in a manner that caused less harm to the individual right protected under s. 11(i). The 1996 amendments removed applications in respect of which the applicant had no reasonable prospect of success before the jury. An application that falls outside of the range of a reasonable prospect of success can, in my view, be equated in the eyes of the law with a meritless application.
99In Simmonds, at paras. 106-107, the court held that the 1996 amendments met the proportionality requirement in s. 1:
In my view, [the 1996 amendments] were appropriately tailored and limited, given that the reasonable prospect standard is very low (in substance, the equivalent of meritless) and the judge must apply the same factors considered by a jury in reaching a screening decision.
It met the pressing government need to avoid re-victimizing the families of murder victims, including those murdered before January 9, 1997, by enabling judges to screen out meritless applications, while preserving the faint hope regime rather than repealing it as advocated by some. In doing so, the amendment preserved meaningful access for offenders to mercy in the face of harsh legal justice, which was itself a parliamentary compromise.
100I find the s. 1 analysis of the 1996 amendments in Simmonds persuasive. However, for the reasons set out above, I think the 2011 amendments are properly the subject matter of the constitutional challenge. Those provisions go far beyond the screening out of meritless applications and foreclose applications which have a reasonable prospect of success before the jury. In doing so, they overshoot, by a large margin, the objective of the legislation. As a result, the 2011 amendments are neither rationally connected to the government's stated objective, nor do they minimally impair the appellant's s. 11(i) right. The government has not met its onus under s. 1.
V. Conclusion
101Section 11(i), in effect, contains its own remedy. If the punishment for an offence has been increased between the time of the offence and the time of sentence, the offender is constitutionally entitled to the benefit of the punishment as it existed at the time of the offence. It is not for a court to substitute some other punishment, even if, in the court's view, that punishment could pass constitutional muster as a justifiable limit on the s. 11(i) right.
102I have concluded that the judicial screening mechanism contained in the 2011 amendments violates the appellant's s. 11(i) right. To the extent that s. 745.61(1) of the Criminal Code imposes a judicial screening requirement on applicants who committed murder prior to January 9, 1997, that provision is of no force and effect. The appellant is entitled to bring her "faint hope" application directly before a jury.
103I would allow the appeal. The appellant is entitled, if so inclined, to make an application to the Superior Court of Justice for an order impanelling a jury to hear her "faint hope" application.
Released: August 2, 2018
"Doherty J.A."
"I agree H.S. LaForme J.A."
"I agree D.M. Paciocco J.A."
