Court of Appeal for Ontario

Date: 2022-06-14 Docket: C68014

Judges: van Rensburg, Pardu and Copeland JJ.A.

Between: Her Majesty the Queen, Respondent And: Yongsheng Liu, Appellant

Counsel: Lynda Morgan and Wesley Dutcher-Walls, for the appellant Mabel Lai and Manasvin Goswami, for the respondent

Heard: In writing

On appeal from the order of Justice Kevin B. Phillips of the Superior Court of Justice, dated June 14, 2018, with reasons reported at 2018 ONSC 3721.

Reasons for Decision

[1] For the reasons that follow, we allow the appeal on the consent of the Crown on the terms proposed by the parties.

[2] The appellant was convicted of first degree murder on December 7, 2002 for having intentionally caused the death of his wife while sexually assaulting her on February 29, 2000. He was sentenced to life imprisonment without the possibility of parole for 25 years. On January 15, 2018, the appellant filed a “faint hope” application (which was at the time available) under s. 745.6 of the Criminal Code, seeking a reduction in his 25-year parole ineligibility period.

[3] The application judge was designated by the Chief Justice of the Superior Court of Justice to screen the application to make a determination as to whether it would be considered by a jury. The hearing was conducted in writing. The application judge dismissed the application after concluding that the appellant had not met the test under s. 745.61(1) of showing, on a balance of probabilities, that there was a substantial likelihood that a unanimous jury would agree with early parole eligibility.

[4] The appellant appeals on the basis that the application judge erred in applying the 2011 amendments to Canada’s “faint hope” regime, rather than the provisions that were in place at the date of the offence. He relies on this court’s decision in R. v. Dell, 2018 ONCA 674, 364 C.C.C. (3d) 419, leave to appeal refused, [2018] S.C.C.A. No. 389, in which the court concluded that the retrospective application of the 2011 amendments to individuals convicted of pre-1997 murders (when there was no judicial screening mechanism) violated s. 11(i) of the Charter and was not saved by s. 1. Dell was released in August 2018, two months after the appellant’s application was dismissed.

[5] The Crown concedes the s. 11(i) violation, acknowledging the binding effect of Dell.

[6] We agree with the parties that the court’s reasoning in Dell leads to the conclusion that elevating the judicial screening threshold for offenders like the appellant who committed murder or high treason between January 9, 1997 and December 2, 2011 from a “reasonable prospect” to a “substantial likelihood” of success significantly increased the appellant’s risk of serving a longer period of incarceration and therefore had the effect of retrospectively increasing his punishment contrary to s. 11(i) of the Charter, and that the violation cannot be justified under s. 1.

[7] On consent of the Crown, we therefore make the following order:

a. That the appeal from the dismissal of the appellant’s s. 745.6 application is allowed;

b. That the “reasonable prospect” of success threshold applies to s. 745.6 applications brought by offenders who committed murder or high treason between January 9, 1997 and December 2, 2011;

c. That the appellant’s application be remitted to the Superior Court of Justice for a new screening hearing under s. 745.6 before a different screening judge on the basis of a new evidentiary record, which can be held immediately; and

d. That the Chief Justice of the Superior Court or their designate should apply the “reasonable prospect” of success threshold at the appellant’s new screening hearing.

“K. van Rensburg J.A.”

“G. Pardu J.A.”

“J. Copeland J.A.”