Court of Appeal for Ontario

Citation: Canada (Attorney General) v. Lalonde, 2016 ONCA 923

Date: 2016-12-08

Docket: C61456

Before: Doherty, Blair and Epstein JJ.A.

Between:

Attorney General of Canada

Appellant

and

Rodney Lalonde

Respondent

Counsel:

Elizabeth Kikuchi, for the appellant

Brian A. Callender, for the respondent

Heard: November 3, 2016

On appeal from the order of Justice Robert F. Scott of the Superior Court of Justice, dated November 26, 2015, with reasons reported at 2015 ONSC 6937.

Doherty J.A.:

I. Overview

[1] The respondent, Rodney Lalonde, pled guilty to and was convicted of one count of conspiracy to traffic in cocaine and one count of conspiracy to traffic in marihuana. Both offences were alleged to have occurred between March 20, 2011 and July 7, 2011. On November 5, 2013, Mr. Lalonde received five-year concurrent sentences on each charge.

[2] Mr. Lalonde met the statutory eligibility criteria for accelerated parole under the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("CCRA"). Under the CCRA's accelerated parole provisions, Mr. Lalonde would have been eligible for day parole in September 2014, 10 months after he was sentenced. Under the normal parole provisions, Mr. Lalonde was not eligible for day parole until January 2015 after serving 14 months of his sentence.

[3] The Corrections authorities took the position that the Abolition of Early Parole Act, S.C. 2011, c. 11 ("AEPA"), enacted on March 28, 2011, had repealed the provisions providing for accelerated parole. Section 10 of the AEPA made the repeal of the accelerated parole provisions retrospective and eliminated eligibility for accelerated parole for all offenders serving penitentiary sentences on or after March 28, 2011. Mr. Lalonde began his five-year sentence in November 2013.

[4] Section 10 clearly rendered Mr. Lalonde ineligible for accelerated parole. However, in March 2014, in Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392, the Supreme Court struck down s. 10 as contrary to s. 11(h) of the Charter insofar as it purported to apply to persons who had been sentenced before the repeal of the accelerated parole provisions.

[5] Whaling did not have direct application to Mr. Lalonde as he had been sentenced after the repeal. However, in 2015, this court held that the abolition of eligibility for accelerated parole amounted to an increase in punishment, making the application of the AEPA to persons who committed offences before the repeal of accelerated parole on March 28, 2011 contrary to s. 11(i) of the Charter: Canada (Attorney General) v. Lewis, 2015 ONCA 379, 126 O.R. (3d) 289, leave to appeal refused, [2015] S.C.C.A. No. 325; see also Liang v. Canada (Attorney General), 2014 BCCA 190, 311 C.C.C. (3d) 159, leave to appeal refused, [2014] S.C.C.A. No. 298.

[6] The holdings in Liang and Lewis created administrative difficulties for the Correctional authorities. Under the CCRA, parole eligibility is determined by reference to the date of sentence and not the date of the offence. After Lewis and Liang, the Correctional authorities had to decide early parole eligibility based on the date of the offence for which the person was sentenced, rather than the date of sentence. Unlike the date of sentence, which can be easily determined by reference to the warrant of committal, there can be uncertainty as to the date on which an offence was committed. Some indictments allege offences that occur between dates that span weeks, months or even years. A transcript of the trial proceedings may not assist in fixing the date of the offence, as often the date of the offence is irrelevant for trial purposes as long as the offence occurred within the timeframe of the indictment.

[7] This case provides a good example of a situation in which the date on which an offence was committed may be unclear. The indictment alleging the two conspiracy offences against Mr. Lalonde referred to a time period that straddled March 28, 2011, the date on which the accelerated parole provisions were repealed. According to the affidavit material filed by the Attorney General of Canada, sentence managers had been instructed to treat persons whose offences were committed prior to March 28, 2011 and continued after that date as ineligible for accelerated parole. Based on that policy, Mr. Lalonde was not eligible for early parole.

[8] Mr. Lalonde moved for a declaration that he was eligible for accelerated parole. He also brought an application for habeas corpus with certiorari in aid. The application judge dealt only with the request for declaratory relief. He held that he had jurisdiction to grant that relief (paras. 4-6), and that as the conspiracies were committed before the repeal of the accelerated parole provisions on March 28, 2011, Mr. Lalonde was eligible for accelerated parole. The application judge made a declaration to that effect.

[9] The Attorney General of Canada appeals from that order. On the appeal, the Attorney General accepts that the application judge had the jurisdiction to grant the declaratory relief that he ordered. The parties also agree that the appeal is moot in that Mr. Lalonde has been released on day parole. The parties accept, however, that this is an appropriate case for the court to exercise its discretion in favour of hearing the moot appeal. As pointed out in the material filed by the Attorney General, the determination of the applicability of the accelerated parole provisions, despite their repeal, continues to have relevance for about 200 offenders serving sentences in penitentiaries across Canada. The parties agree that by addressing the merits of the appeal, the court can provide guidance to the Correctional authorities charged with the responsibility of determining parole eligibility dates.

II. When is a crime committed for the purposes of section 11(i) of the Charter?

[10] Section 11(i) of the Charter provides:

11. Any person charged with an offence has the right

(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.

[11] Section 11(i) of the Charter, like s. 11(g) and s. 11(h), reflects a constitutional aversion to retrospective criminal legislation. Retrospective criminal laws are viewed as unfair and undermining the rule of law because they effectively change the rules in the middle of the "game" to the detriment of the individual affected by those rules. Fairness and respect for the rule of law require that a person's maximum exposure to punishment for a criminal act be fixed as of "the time of commission" of the criminal act for which he or she is to be punished: see R. v. K.R.J., 2016 SCC 31, 337 C.C.C. (3d) 285, at paras. 20-27.

[12] The abolition of eligibility for accelerated parole increased the punishment imposed on Mr. Lalonde: Lewis, at paras. 20-24. Consequently, if Mr. Lalonde committed his crimes before the punishment for those crimes was varied on March 28, 2011 by the elimination of eligibility for accelerated parole, Mr. Lalonde was constitutionally entitled to the benefit of "the lesser punishment", that is the parole scheme that included eligibility to be considered for early parole.

[13] Counsel for the Attorney General submits that while the crime of conspiracy is committed when two or more persons enter into an agreement to commit a crime, intending to carry out that agreement, the crime continues until the criminal object is achieved or the agreement is frustrated, usually by the arrest of the co-conspirators: see R. v. J.F., 2013 SCC 12, [2013] 1 S.C.R. 565, at paras. 21, 44, 58; and R. v. Bell, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 471, at p. 488. Counsel submits that as long as a conspiracy continues, it is not completed and should not be treated as committed for the purposes of s. 11(i). On that approach, Mr. Lalonde continued to commit the offence of conspiracy beyond March 28, 2011 to July 2011 when he and his fellow conspirators were arrested. If the Attorney General's interpretation is correct, there is no variation in the penalty for the offence between "the time of commission" and "the time of sentencing". Section 11(i) would have no application.

[14] Counsel for Mr. Lalonde does not take issue with counsel for the Attorney General's description of the crime of conspiracy as a continuing offence. He submits, however, that conspiracy, like all crimes, is committed when the requisite actus reus and mens rea coexist. Counsel submits that the Attorney General's submissions fail to distinguish between the commission of a continuing offence and the completion or termination of that offence. Counsel argues that on a plain reading, s. 11(i) of the Charter is concerned with the commission and not the termination or completion of an offence. Counsel argues that on the facts of this case, Mr. Lalonde entered into conspiracies to traffic in cocaine and marihuana before March 28, 2011. He had therefore committed his crimes before that date even though he and his co-conspirators carried on efforts to achieve the objects of the conspiracies after March 28, 2011.

[15] The distinction drawn by counsel for Mr. Lalonde between the point in time at which a crime is committed and the point at which that crime is completed or terminated is a valid one when the offence is a continuing offence. The commission of a crime connotes culpability for that crime. An offender is culpable in the sense that he or she is liable to be convicted for the offence when he or she has performed the required actus reus with the required mens rea. Criminal culpability exists from that point forward whether the offence is a continuing one or not: see Bell, at p. 488; and Brodie v. The King, 1936 CanLII 1 (SCC), [1936] S.C.R. 188, at p. 198. Events subsequent to the point in time at which the actus reus and mens rea coexist cannot remove or negative culpability, although they may mitigate or aggravate punishment: see R. v. Kosh, 1964 CanLII 361 (SK CA), [1965] 1 C.C.C. 230, 44 C.R. 185, at p. 235 (Sask. C.A.); and R. v. Roberts, [1981] B.C.J. No. 1185, at para. 7 (C.A.). For example, a person who enters into a criminal conspiracy, intending to carry it out, but abandons the conspiracy before the object is achieved or the agreement is terminated, remains criminally liable for the crime of conspiracy. As explained by Taschereau J., in R. v. O'Brien, 1954 CanLII 42 (SCC), [1954] S.C.R. 666, at p. 669:

If a person, with one or several others, agrees to commit an unlawful act, and later, after having had the intention to carry it through, refuses to put the plan into effect, that person is nevertheless guilty, because all the ingredients of conspiracy can be found in the accused's conduct. …

[16] If, as is clear on the authorities, culpability for criminal conspiracy attaches when a person enters into an agreement with one or more other persons to commit a criminal offence, intending to achieve that criminal object, it is illogical to say that the conspiracy is not committed until the unlawful object is achieved or the conspiracy terminated. The continuing nature of the offence of conspiracy has significance for various issues. However, the continuing nature of the crime has no impact on the determination of the point in time at which liability for the commission of the offence attaches. If a person engages in the required actus reus with the specified mens rea, that person commits the offence whether or not the offence is a continuing one.

[17] Section 11(i) fixes "the time of commission" of the offence as one of the two relevant points in time to be considered when applying the section. I see nothing in the language of s. 11(i), or the purpose underlying the section, justifying a departure from the plain meaning of the phrase, "the time of commission" of the crime. A crime is committed when culpability attaches.

[18] Counsel's research produced several decisions, most of them trial decisions, in which an indictment alleged an offence that straddled the date on which legislation came into force increasing or decreasing the relevant penalties. None of the cases involved the AEPA or the crime of conspiracy. In each case, the offender argued that s. 11(i) of the Charter entitled him or her to the lesser penalty.

[19] Most of the trial decisions referred to by counsel support Mr. Lalonde's position, although none contain any analysis of s. 11(i): see R. v. A.B., 2008 QCCQ 3538, at para. 56 (Crim. & Pen. Div.); R. v. Handy, 2012 CarswellOnt 13427, at paras. 224-29 (Sup. Ct.); R. v. Lewis, 2014 ONSC 4188, at para. 14; and R. v. Morier, 2014 QCCQ 1959, at paras. 15-17 (Crim. & Pen. Div.).

[20] Counsel referred to two appellate decisions. Both support the Attorney General's position: R. v. Pouliot, 2006 QCCA 643, at para. 4; and R. v. V.I.C., 2005 SKCA 95, 269 Sask. R. 131, at para. 11.

[21] In Pouliot, the accused was charged with keeping a common bawdy house over a lengthy period of time. During that timeframe, the penalty for the offence was amended to increase the offender's exposure to forfeiture of property used in the offence. The accused argued that he should be sentenced under the regime that existed at the commencement of the timeframe alleged in the indictment. The Quebec Court of Appeal rejected that argument. The court reasoned, at para. 4, that keeping a common bawdy house is a continuing offence, and that the accused continued to commit the offence well after the penalty increased. The accused was thus not entitled to the benefit of the old property forfeiture regime.

[22] In V.I.C., the accused was charged with a single count of sexual assault covering a 14-month timeframe. The Crown alleged that he had assaulted his young cousin repeatedly during that timeframe. During the timeframe covered by the indictment, the statutory scheme was changed to make the accused liable for a more serious penalty. The accused argued that he should be sentenced under the law as it existed at the start of the timeframe set out in the indictment. The Saskatchewan Court of Appeal disagreed, pointing out that acts that amounted to sexual assaults occurred before and after the enactment of the provision increasing the potential penalty. The court held, at para. 11:

This was not a case of application of the law to an offence which occurred before the legislation came into effect, but of application of the law to an offence which was not complete, and therefore did not occur, until a date on which the legislation was in effect.

[23] With respect, I cannot agree with Pouliot and V.I.C. While I accept that the offences in both cases continued beyond the enactment of the relevant legislation, I do not agree that the continuation of the offences meant that they were not committed before the enactment of the relevant legislation. The accused in Pouliot was liable for the offence of keeping a common bawdy house as of the date on which the increased exposure to forfeiture came into effect. Had he been charged on that date, he would have been convicted.

[24] Similarly, the accused in V.I.C. committed acts of sexual assault before the enactment of the increased penalty. He was culpable on the single count indictment preferred by the Crown from the moment he committed the earliest of the sexual assaults capable of supporting the charge as framed in the indictment. Had the Crown proved only that one assault, the accused would have been convicted on the indictment as charged. I do not agree that because the Crown chose to lay a single charge encompassing several discrete acts of sexual assault that occurred over several months, the offence for which the accused was convicted should be viewed as "not complete", or as if it "did not occur" until the last of the sexual acts occurred. The number of discrete acts capable of supporting liability for the offence as charged does not alter the fact that the actus reus and mens rea required to support a conviction coexisted as of the first act of sexual assault.

[25] Having reviewed the cases, I remain satisfied that the words of s. 11(i) should be given their plain meaning. Mr. Lalonde committed his crimes at the point in time when he agreed with one or more persons to traffic in cocaine or marihuana, intending to do so.

III. When did Mr. Lalonde commit his crimes?

[26] As indicated above, the language in the indictment brought against Mr. Lalonde alleges dates that straddle March 28, 2011. To determine whether Mr. Lalonde was eligible for early parole, the Correctional authorities had to determine whether he committed the conspiracies before that date. The language of the indictment, standing alone, does not answer that question.

[27] Whether Mr. Lalonde entered into the alleged conspiracies before March 28, 2011 was not in issue at the trial proceedings and, not surprisingly, was not addressed by trial counsel or the trial judge. The facts relied on by the Crown to support Mr. Lalonde's guilty pleas were offered to establish his guilt and not to establish the point in time at which he became culpable for the conspiracies. Those facts do, however, assist in determining whether Mr. Lalonde entered into the conspiracies before March 28, 2011.

[28] The facts relied on by the Crown to support the charge of conspiracy to traffic in cocaine included references to many acts allegedly done in furtherance of the conspiracy by Mr. Lalonde and others before March 28, 2011. An act can only be done in furtherance of a conspiracy if the conspiracy exists when the act is performed. On the facts put forward by the Crown, Mr. Lalonde had entered into a conspiracy to traffic in cocaine, intending to traffic in cocaine, well before March 28, 2011. On those facts, Mr. Lalonde committed the offence of conspiracy to traffic in cocaine before the AEPA repealed eligibility for early parole. He was entitled to be considered for early parole.

[29] The facts the Crown relied on in support of the plea on the charge of conspiracy to traffic in marihuana are less detailed than the facts relating to the cocaine conspiracy. None of the acts said to be in furtherance of the conspiracy to traffic in marihuana occurred before March 28, 2011. Nothing said by the Crown, however, suggests that the agreement to traffic in marihuana only came into existence after that date. Having regard to the terms of the indictment, and the entirety of the facts relied on by the Crown as they relate to both conspiracies, it is a fair inference that Mr. Lalonde was a member of both conspiracies as of March 28, 2011 and was therefore entitled to be considered for early parole in respect of both offences.

[30] In any event, it does not ultimately matter, for the purposes of determining Mr. Lalonde's eligibility to be considered for early parole, whether the offence of conspiracy to traffic in marihuana was committed before or after March 28, 2011. Mr. Lalonde received two concurrent five-year sentences. Pursuant to s. 139(1) and s. 120.1(1)(b) of the CCRA, Mr. Lalonde was deemed to be serving a single five-year sentence with a single parole eligibility date. If, as I would hold, Mr. Lalonde was eligible to be considered for early parole in relation to the conspiracy to traffic in cocaine conviction because the crime was committed before the repeal of the early parole provisions, his conviction at the same time for an offence committed after that date cannot, in my view, take away his constitutional right to be considered for early parole in respect of conspiracy to traffic in cocaine conviction. A change in the rules governing Mr. Lalonde's parole status as those rules relate to the conviction for conspiracy to traffic in cocaine after the date on which he committed that offence remains a violation of s. 11(i), even if a concurrent sentence imposed for an offence committed after the repeal of the early parole provisions would not attract the protection of s. 11(i).

IV. Two additional comments

[31] The reasons set out above are enough to dispose of the appeal in favour of Mr. Lalonde. I will, however, in the hope of providing the Correctional authorities with some additional guidance, address two matters referred to in the affidavit of the senior Correctional Services manager filed on the application by the Attorney General of Canada.

[32] In the affidavit, the affiant states:

[W]here offenders who receive one sentence for numerous offences which were committed both before and after the repeal of [accelerated parole], [those offenders] were not considered to be entitled to [accelerated parole].

[33] The position taken by the Correctional authorities is premised on the provisions of the CCRA which treat prisoners as serving a single sentence with a single parole eligibility date even though the prisoners were convicted of various offences at different times and received discrete sentences for each of those offences. The sentences are effectively amalgamated into a single sentence with a single parole eligibility date: see CCRA s. 120.1(2)(3), s. 120.2, s. 139(1). For example, if an offender is convicted and sentenced to a two-year sentence in the penitentiary and six months later receives an additional two years consecutive for a different offence, the Correctional authorities treat the person as serving a single four-year sentence, running from the date of the first sentence. They also fix a single parole eligibility date using the somewhat complicated provisions in s. 120.1 of the CCRA.

[34] Essentially, for the reasons set out above in para. 30, I do not think that the Correctional authorities can ignore the date on which the offences occurred in determining eligibility for early parole. If the offender was entitled to apply for early parole as of the date of the offence, s. 11(i) constitutionally guarantees that eligibility, regardless of whether the offender is subsequently convicted of other offences which post-date the repeal of the early parole provisions. If, in the example set out above, the first offence for which the offender received a two-year sentence was committed before March 28, 2011, the offender was eligible to be considered for early parole. His subsequent conviction and two-year sentence for an offence committed after March 28, 2011 would not eliminate his eligibility for early parole on the first conviction, even though the Correctional authorities treat the sentences as one for the purposes of calculating the total sentence being served and the parole eligibility date.

[35] In holding that the offender would be entitled to the benefit of the early parole provisions despite the commission of offences after the repeal of those provisions, I do not mean to suggest that the commission of subsequent offences would not have relevance to the application of the early parole provisions. In fact, depending on the nature and timing of the subsequent offences, the offender may no longer meet the criteria in the early parole provisions to even be considered for early parole.[^1] The offender nonetheless would remain eligible for early parole in the sense that those provisions would apply to the offender because he was serving a sentence imposed, at least in part, in respect of an offence committed before the repeal of the early parole provisions.

[36] My second observation arises from the same affidavit. The affiant indicates that sentence managers are instructed that all offenders whose offence dates straddle March 28, 2011 are not considered eligible for accelerated parole. While I can appreciate the value of a bright-line rule for administrative purposes, the offender's constitutional rights under s. 11(i) cannot be negated by a default rule that has no connection to the facts of the individual case.

[37] The Correctional authorities charged with determining eligibility for early parole must do their best on the materials available to them to determine if an offence was committed before March 28, 2011. As I understand it, sentence managers usually have the indictment, reasons for conviction (assuming it was not a jury trial), reasons for sentence, and the warrant of committal. If a sentence manager is satisfied, based on that material, that the offence was committed, as defined in these reasons, before March 28, 2011, the sentence manager will treat the offender as eligible to be considered for accelerated parole, even if the offence continued after that date.

[38] If a sentence manager is unable, on the material available to him or her, to decide whether the offence was committed before March 28, 2011, it is incumbent on the Correctional authorities to put the offender on notice that he or she may be eligible to be considered for early parole, depending on when the offence was committed, and that the Correctional authorities are unable to make that determination on the material available to them. The offender should be given an opportunity, if he or she wishes to do so, to provide further information that may assist in determining the date of the offence.

V. Conclusion

[39] I would dismiss the appeal.

Released: "DD" "DEC 08 2016"

"Doherty J.A."

"I sgree R.A. Blair J.A."

"I agree Gloria Epstein J.A."

[^1]: For example, under the early parole provisions, an offender who is serving an offence for which he was eligible for early parole and who while serving that sentence committed a further offence ceases to be eligible for early parole: CCRA s. 125(1.1).