COURT OF APPEAL FOR ONTARIO

CITATION: Frost v. Canada (Attorney General), 2015 ONCA 386

DATE: 20150529

DOCKET: C59684

Simmons, Juriansz and van Rensburg JJ.A.

BETWEEN

James Frost

Appellant

and

Attorney General of Canada

Respondent

Brian A. Callender, 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 5666.

Juriansz J.A.:

[1] The appellant is currently an inmate at Beaver Creek Institution, a federal correctional facility. He was arrested and charged in 2003 with conspiracy to import cocaine. He was first convicted in 2007 and sentenced in 2008, but successfully appealed both conviction and sentence in 2010. In 2011, after a retrial, the appellant was once again convicted and sentenced to penitentiary.

[2] On March 28, 2011, seven months before the appellant was convicted and sentenced a second time, 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 previously available under the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”). As per s. 10(1) of the AEPA, APR is no longer available to any offender sentenced to penitentiary before, on or after March 28, 2011, the date the AEPA came into effect.

[3] The appellant appeals from the dismissal of his application for habeas corpus. In that application, he sought a declaration that, by virtue of s. 11(i) of the Charter, he is entitled to the APR regime in place at the time he committed the offences for which he was sentenced to penitentiary. He says that the application judge erred in finding that the application of the AEPA to his case was prospective and did not result in a variation of punishment within the meaning of s. 11(i) of the Charter.

[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] Based on the reasoning in Lewis, I would allow the appellant’s appeal and order that the appellant is eligible for APR in accordance 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.”