COURT OF APPEAL FOR ONTARIO

CITATION: Lapple v. Canada (Attorney General), 2015 ONCA 385

DATE: 20150529

DOCKET: C59618

Simmons, Juriansz and van Rensburg JJ.A.

BETWEEN

Raymond Lapple

Appellant

and

Attorney General of Canada

Respondent

Raymond Lapple, acting in person

Vincenzo Rondinelli, duty counsel for the appellant

Michael Sims and Jim Kapches, for the respondent

Heard: March 10, 2015

On appeal from the order of Justice Robert J. MacKinnon of the Superior Court of Justice, dated September 17, 2014, with reasons reported at 2014 ONSC 5670.

Juriansz J.A.:

[1] The appellant is currently an inmate at Beaver Creek Institution, a federal correctional facility. In 2009, he was charged with importing cocaine, conspiracy to import and possession for the purpose of trafficking. He was convicted of all three charges and sentenced on February 20, 2013, almost two years after the Abolition of Early Parole Act, S.C. 2011, c. 11 (“AEPA”) came into force and effect. The AEPA abolished the accelerated parole review (“APR”) regime that was available at the time the appellant committed his offences. Pursuant to s. 10(1) of the AEPA, the abolition of APR applied to any offender sentenced to penitentiary before, on or after March 28, 2011, the date the AEPA came into effect.

[2] The appellant brought an application for habeas corpus, in which he sought a declaration that, by virtue of s. 11(i) of the Charter, he has a right to accelerated parole review (“APR”) under the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”), ss. 119.1 and 125-126.1, repealed. He also sought habeas corpus with certiorari in aid to review parole decisions of the Correctional Service of Canada and the Parole Board.

[3] The application judge dismissed the application. He found that the transitional provisions of the AEPA that deprived the appellant of APR did not violate his s. 11(i) Charter right. He also declined to exercise his habeas corpus jurisdiction to review the parole decisions of the Correctional Service of Canada and the Parole Board, because the National Parole Board and its Appeal Division constitute a complete, expert and comprehensive procedure for their review.

[4] This appeal was heard together with Canada (Attorney General) v. Lewis, 2015 ONCA 379. Like the appellant, the respondents in Lewis were non-violent offenders who were convicted and sentenced to their first penitentiary term after the enactment of the AEPA for offences committed before its enactment. In Lewis this court found that the abolition of APR had the effect of appreciably increasing the amount of time the respondents would be incarcerated in comparison to what they would have expected under the regime in place at the time they committed their offences. This increase in incarceration was a variation in punishment within the meaning of s. 11(i) of the Charter and was not justified under s. 1 of the Charter.

[5] For the reasons in Lewis, I conclude find that the repeal of APR did violate the appellant’s s. 11(i) Charter right, and this infringement is not justified under s. 1. I would allow the appellant’s appeal on the constitutionality of eliminating APR for offenders who committed offences before, but were convicted and sentenced after, the AEPA came into force.

[6] I would allow the appeal and order that the appellant is entitled to the APR regime previously in place.

Released: May 29, 2015

(PR)

“R.G. Juriansz J.A.”

“I agree Janet Simmons J.A.”

“I agree K. van Rensburg J.A.”