COURT FILE NO.: CR-13-2809-MO

DATE: 20140527

CORRECTED RELEASED: 20140529

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

MASON JENKINS

Applicant

Robert H. MacDonald and Heather S. McIntyre, for the Crown

Howard L. Krongold, for the Applicant

HEARD: March 17, 2014

Corrected decision: The text of the original judgment was corrected on May 29, 2014 and the description of the correction is appended.

RULING ON CONSTITUTIONAL VALIDITY OF s. 745.61 OF THE CRIMINAL CODE

Pomerance J.:

INTRODUCTION

[1] In 2011, Parliament amended the faint hope provisions in the Criminal Code, requiring judges to apply a stricter standard when screening such applications. By restricting jury hearings to meritorious cases, Parliament sought to protect families of victims from the agony of participating in unnecessary or frivolous hearings.

[2] Mason Jenkins was convicted of the first degree murder of his sister on January 12, 2001. The offence was committed on January 6, 1998. At both the time of the offence, and his conviction, s. 745.61 provided that a judge screening an application could only direct a hearing if the application had “a reasonable prospect of success”. By virtue of the 2011 amendment, s. 745.61 now requires the screening judge to consider whether there is a “substantial likelihood of success”. The question is whether the retrospective application of the new standard to Mason Jenkins’ application violates his rights under s. 11(h) of the Charter, which prohibits double punishment.

[3] The applicant argues that the new standard screens out cases that would have gone before a jury on the old standard. It creates a class of offenders who will be wrongly deprived of a jury hearing. Without a jury hearing, there can be no reduction in parole ineligibility and these individuals will serve a longer period of time in jail. This is said to result in increased punishment, in violation of s. 11(h).

[4] The Crown resists the constitutional challenge, arguing that the amendment does not involve punishment at all, but rather, offender management and administration of parole. The Crown says that s. 11(h) is not triggered. To the extent that liberty of offenders is affected, the Crown says that any interference with liberty is in accordance with the principles of fundamental justice. Finally, the Crown argues that, if the amendment violates the Charter, it can be saved as a reasonable limit, demonstrably justified under s. 1 of the Charter.

[5] I find that the amendment to s. 745.61 does concern punishment, in that it addresses the period of parole ineligibility that must be served by an offender. Both the mandatory period of parole ineligibility, and the prospect of faint hope reduction, form part of the original sentence for murder. The amendment does not, however, increase or add to punishment. It does not fundamentally change the nature of the sentence imposed at the time of conviction. It does not thwart the settled expectations of liberty that crystallized when sentence was imposed. The change is of a procedural character and does not affect substantive rights. The amendment does not violate s. 11(h). Nor does it violate s. 7 of the Charter, as any impact on liberty is in accordance with the principles of fundamental justice.

[6] I will explain these conclusions in the reasons that follow. I will begin by examining s. 745.61 within its historical, legislative, and procedural context. I will discuss some of the challenges presented by the screening process. I will then turn to the Charter, examining s. 11(h) and, to a lesser extent, s. 7, in addressing the constitutional validity of the provision.

[7] Applications to reduce parole ineligibility periods are often referred to as “faint hope” applications. While the term “faint hope” has a colloquial character, it is a convenient shorthand. I will use it from time to time in these reasons.

THE HISTORICAL, LEGISLATIVE, AND PROCEDURAL CONTEXT

The Statutory Scheme

[8] Faint hope applications are unique. They are unlike any other process within Canadian criminal law. They do not exist in other common law jurisdictions. They are a function of the political dialogue that took place in Canada in the early 1970s, leading to the abolition of capital punishment.

[9] Sections ss. 745.6 – 745.64 of the Criminal Code set a mini-code of procedure for faint hope applications. In Ontario, these applications are also governed by rules 50 – 50.9 of the Criminal Proceedings Rules for the Superior Court of Justice, (Ontario), SI/2012-7. Section 745.6 defines who may bring an application and the timelines for filing. An application may be filed by a person convicted of murder or high treason, who received a term of at least 15 years parole ineligibility, and who has served at least 15 years of his or her sentence. Since January 1997, persons convicted of more than one murder may not apply for a reduction. The application is submitted to the Chief Justice of the Superior Court of the province who may consider the application herself, or designate another judge to do so. Thereafter, the application proceeds in three stages.

[10] At the first stage, the written application, consisting of the application and any responding materials, is reviewed by a judge for screening purposes. The judge is to determine whether the application has sufficient merit that it should be placed before a jury for a full hearing. The screening judge is to consider the same five criteria that would guide a jury at a hearing:

a) the character of the applicant;

b) the applicant’s conduct while serving the sentence;

c) the nature of the offence for which the applicant was convicted;

d) any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section; and

e) any other matters that the judge considers relevant in the circumstances

[11] If the case does not pass the screening threshold, the application is dismissed without a hearing. The judge must provide reasons and must determine whether the offender is entitled to bring a future application and, if so, when. A new application cannot be commenced for at least five years. The screening decision may be appealed by the offender or by the Attorney General under s. 745.62 of the Code.

[12] If the case does pass the screening threshold, it is referred to a jury for a hearing under s. 745.63 of the Code. The jury must determine whether there should be a reduction in parole ineligibility, based on consideration of the five criteria listed above. Any decision to reduce the period must be unanimous. If the jury votes unanimously for a reduction, it may recommend a lesser period of parole ineligibility (by a vote of not less than two-thirds of the members of the jury) or terminate the period of parole ineligibility. If the jury declines to reduce the period, it may determine whether a new application can be brought (not sooner than five years) and if so, when. The jury decision is final; it is not subject to review.

[13] If the jury reduces the period of parole ineligibility, the offender may then apply for parole on or after the new parole eligibility date.

The Origins of Faint Hope

[14] Faint hope was the result of political compromises thought necessary to achieve abolition of capital punishment in Canada in 1976. Having repealed capital murder, Parliament introduced a new classification system that distinguished between first and second degree murder. It is said that, in choosing a period of 25 years parole ineligibility for first degree murder, Parliament was trying to appease those who favoured retention of the death penalty (Craig Bell, “R. v. Luxton and First Degree Murder in Canada: A “Constructive” Criticism” (1993) 31 Alta. L. Rev. 707 at 708). This is a logical supposition given that the 25 year period was, by all accounts at the time, unusually harsh. Prior to the amendment, the average time served before parole release in non-capital murder was 7.7 years. In cases of capital murder commuted to life, the average time served was 13.2 years (see House of Commons Debates, 30th Parl., 1st Sess., Vol. 13 (31 May 1976) at 13988 (Hon. Don Mazankowski). Other jurisdictions tended to cap parole ineligibility at 15 years.

[15] In recognition of this, the 25 year period of parole ineligibility was tempered by the simultaneous introduction of faint hope; the offender’s right to apply to reduce the period after 15 years. From the start, the government recognized that the prospect of a reduction of parole ineligibility offered an incentive for good behaviour. This, in turn, created safer prison environments for guards and other inmates. The faint hope provisions also brought Canada in line with other jurisdictions, which tended to recognize parole eligibility at the 15 year mark.

[16] The first faint hope provisions were enacted by The Criminal Law Amendment (No. 2), 1976, S.C. 1974-75-76, c. 105. Under s. 672 of the Criminal Code, upon receiving an application, the Chief Justice of the Superior Court would empanel a jury to hear the application and determine whether there should be a reduction in the parole eligibility period. The determination was to be made by no less than two-thirds of the jury based on four criteria: 1. The applicant’s character; 2. The applicant’s conduct while serving the sentence; 3. The nature of the offence for which the applicant was convicted; 4. Other matters as the judge deems relevant in the circumstances. In 1995, another criterion was added by An Act to amend the Criminal Code (Sentencing), S.C. 1995, c. 22, namely, “the information provided by a victim, either at the time of the imposition of the sentence or at the time of the hearing under this subsection”.

[17] Other amendments were made in 1997 (An Act to amend the Criminal Code (judicial review of parole ineligibility) and another Act, S.O. 1996, c. 34) and in 2011 (An Act to amend the Criminal Code and another Act, S.O. 2011, c. 2) respectively. 1997 saw the introduction of judicial screening, the requirement of jury unanimity, and provided that persons convicted of multiple murders could not apply for faint hope. 2011 saw the introduction of time periods and other restrictions on the filing of applications. Among these changes was the introduction of the new screening standard at issue in this case.

The Jury as the Arbiter of Faint Hope

[18] As originally conceived, the legislation contemplated that applications for reductions in parole ineligibility would be heard before a panel of three judges, rather than a jury (see First Reading, Bill C-84, Criminal Law Amendment Act (No. 2), 1976, 1st Sess., 30th Parl., 1974-75-76, cl. 21(2) (first reading 24 February 1976). When the Bill went before the Standing Committee on Justice and Legal Affairs, Member of Parliament Stuart Leggatt proposed that a jury be substituted for the judicial panel “so that the community in which the offender is being released will have something to say about his release” (Minutes of Standing Committee on Justice and Legal Affairs, Bill C-84, Criminal Law Amendment Act (No. 2), 1976 (June 28, 1976) at 72:56 (Hon. Stuart Leggatt)). There was scant debate about this amendment in Committee and even less in the House of Commons. Nonetheless, the amendment passed and the jury became the arbiter of faint hope. The jury was to be selected from the community in which the offence took place, in order to give those citizens a voice in determining eligibility for release. The jury was to represent the conscience of the community.

[19] This was explained by then Minister of Justice and Attorney General of Canada Alan Rock in 1996, when he introduced amendments to the faint hope legislation:

Those cases that are screened as meritorious and go forward for hearing will be decided by 12 members of the community, often the very community to which the offender seeks to return if parole is eventually granted. Those 12 members of the community will be drawn from the streets, the coffee shops, the buses and offices, the very people who elected us to Parliament, the very people in whose name it is said that section 745 is out of touch with the community and its values. It is members of those communities who will make the decision under section 745 about whether there is any further public interest to be served by that offender remaining in prison, perhaps for a period of 10 years more (House of Commons Debates, 35th Parl., 2nd Sess., No. 62 (14 June 1996) at 3856-7).

Introduction of Judicial Screening: the Reasonable Prospect Test

[20] The original faint hope scheme contemplated that all applications would be placed before a jury for a determination. There was no judicial screening. Judicial screening was first introduced in 1997, as part of a broader package of amendments. Minister of Justice Rock explained the rationale for this step:

The purpose of the screening mechanism is to help ensure that only those meritorious cases get a hearing before the section 745 jury. This is intended to address directly the concern of the families of victims that they may be brought into a hearing process by an offender who has no reasonable prospect of success (House of Commons Debates, 35th Parl., 2nd Sess., No. 62 (14 June 1996) at 3856).

[21] As initially amended, s. 745.61 required the screening judge to determine: “whether the applicant has shown, on a balance of probabilities, that there is a reasonable prospect that the application will succeed”. Several courts interpreted this to be a low threshold, akin to asking whether the application was “hopeless”. If the application was not hopeless, the matter was referred to a jury. Judges were anxious not to usurp the function of the jury in assessing whether parole ineligibility periods should be reduced. For example, in R. v. D.E.K., 2001 MBQB 350, 161 Man.R. (2d) 111, Oliphant A.C.J.Q.B. observed at para. 44:

In my opinion, for a judge to dismiss any application that is not hopeless, at the initial step of the proceeding is tantamount to usurping the function of the jury. I think Parliament intended that a jury, not a judge, should decide whether an offender should be given an opportunity to apply for early release in all cases except those where there is no reasonable prospect of success before a jury.

(See also R. v. Rochon 2011 ONSC 5061; R. v. Sedore, [2008] O.J. No. 2705 (Sup. Ct.); R. v. Schaefler, 2009 39498 (ON SC), [2009] O.J. No. 3175 (Sup. Ct.).)

[22] Parliament was concerned that judges were setting the bar too low. At second reading of Bill S-6, Bob Dechert, Parliamentary Secretary to the Minister of Justice, described the reasonable prospect test as a “relatively easy threshold to meet”:

Applicants must convince a Superior Court judge in the province where the conviction occurred that there is a reasonable prospect that their application will be successful.

If this threshold test is met, the judge will allow the application to proceed. This is a relatively easy threshold to meet. Bill S-6 will strengthen it by requiring applicants to prove that they have a substantial likelihood of success. This should prevent less worthy applications from going forward (House of Commons Debates, 40th Parl., 3rd Sess., No. 77 (5 October 2010) at 4744).

[23] Under Bill S-6, s. 745.61 was amended. The reasonable prospect test was repealed and replaced with the requirement that the applicant demonstrate, “on the balance of probabilities, that his or her application is substantially likely to succeed.”

[24] Ironically, shortly after the section was amended, the Court of Appeal for Ontario ruled that lower courts had erred in their interpretation of the reasonable prospect test. In R. v. Phillips, 2012 ONCA 54, 288 O.A.C. 351, the Court of Appeal ruled that “not hopeless” is too lenient a standard:

We agree with the application judge that the statutory test embodies more than merely showing that a case is not hopeless. The normal meaning of the words suggests a higher test. Moreover, as the application judge pointed out, lowering the threshold to having to establish only that a case is not hopeless would frustrate the purpose of the judicial screening stage (para.6).

[25] By the time Phillips was decided, the interpretation of the reasonable prospect test had become academic. The section had been amended. Nonetheless, in understanding the impact of the amendment, it is helpful to note that Parliament was responding to the “not hopeless” standard from the pre-Phillips case law.

The New Screening Standard: Substantial Likelihood

[26] Section 745.61, as amended, requires the applicant to “show on a balance of probabilities that there is a substantial likelihood that the application will succeed”, as a pre-condition to empanelling a jury. Various judges have struggled with what the new screening standards means in practical terms.

[27] The new test is an awkward formulation, combining, as it does, two different concepts of probability – balance of probabilities, on the one hand, and substantial likelihood, on the other. Moreover, while standards of proof usually apply to questions of fact, here the matter to be proved on the balance of probabilities is itself a standard of probability (a substantial likelihood). The term “substantial likelihood” imports its own vagaries, though this phrase does appear in other Criminal Code provisions. It would seem fruitless to try to assign a numerical value to the concept of substantial likelihood proved on a balance of probabilities. The concept is better understood as melding notions of quantitative and qualitative assessment. The applicant is to prove, on the balance of probabilities, that there is a concrete or tangible likelihood of success.

[28] There are not many decisions to date dealing with the interpretation of the new test. I will quote liberally from the authorities that do exist, as they offer helpful guidance. In R. v. Poitras, 2012 ONSC 5147, Rutherford J. offered the following observations in para. 19-21:

19 So how much greater merit does an application with a “substantial likelihood” of success have than one with a “reasonable prospect” of success? To answer that question requires a semantic exercise in giving meaning to a somewhat odd coupling of the terms “substantial likelihood” with “balance of probabilities”. Lawyers and judges deal with the latter term in civil trials. A balance of probabilities threshold is one in which it must be shown that something is more probable than not. So a faint hope applicant must now show that it is more probable than not that the application has a substantial likelihood of success. The Oxford Dictionary (Toronto: Oxford University Press, 1998) defines the word “substantial” as “of real importance, value, or validity.” The word, “likelihood” is defined as a “probability” or a “promise of success.” Thus, a faint hope applicant contends with a threshold showing of it being more probable than not that the application has a probability or promise of succeeding. That is, the likelihood is of substance; of real value; or valid. A case of some real merit, or some substantive merit, has a substantial likelihood of success.

20 In R. v. McAuley, 2012 ONSC 3732, Ratushny J. said, at para. 14: “When the plain meaning of the words ‘reasonable prospect’ under the old statutory test and the plain meaning of the words ‘substantial likelihood’ under the new statutory test are considered, I think it clear the new test is more stringent and, therefore, imposes a higher threshold to be met than under the old test.”

21 I agree with Ratushny J., but how much higher is the threshold? It is difficult to describe a theoretical point such as this threshold with precision. Juries hear all the facts and apply their common sense to the evidence. According to the Library of Parliament Legislative Summary, referred to above, juries granted relief in over 81% of the faint hope clause applications judges sent on to full hearings under the old threshold. This suggests a real danger in setting the bar so high, under the new threshold, that a case which a jury might find meritorious may not be heard.

[29] In R. v. Gayle, [2013] O.J. No. 4124, Nordheimer J. spoke of the stringency of the new standard in paras. 10-12:

10 As I have already indicated, I agree that the new threshold imposes a much more stringent test for these applications to proceed to a jury. The applicant must satisfy the pre-screening judge, on a balance of probabilities, exactly what the wording of the section requires: that his/her application has a substantial likelihood of succeeding. I will add on this point that I do not share Rutherford J.’s concern that if the bar is set so high a case might not be heard that a jury might find meritorious. It seems to me that in amending the section Parliament intended to ensure that only cases with real merit would proceed. To that end, Parliament decided that the threshold used by the pre-screening judge should be raised. In making that decision, Parliament must have considered the possibility that some cases that a particular jury might find meritorious would nonetheless not make it to that stage. Clearly, Parliament intended to restrict the process not just to the possible case but to the truly meritorious one.

11 There is another aspect that arises from the change in the threshold at the pre-screening stage. Given that the threshold is a more stringent one, it seems to me that the pre-screening judge must take a harder and more critical look at the evidence as it relates to the criteria set out in s. 745.63. Rather than only having to be satisfied that there was a reasonable prospect that the application would succeed, as was the case in the past, now the pre-screening judge has to put him/herself in the position of the jury and determine whether, on the facts as currently known, there is a substantial likelihood of success.

[30] Another thoughtful analysis is found in the decision of S. Martin J. of the Alberta Court of Queen’s Bench in R. v. Morrison, 2012 ABQB 619, 551 A.R. 149, in which she stated at paras. 30, 41, and 42:

30. Knowing there was a variation in how courts approached the reasonable prospect standard is helpful in articulating what the new standard was meant to accomplish and to help understand what more is required. The continuum of descriptors to capture what may happen in the future is bounded by the extremes of never and with certainty. Parliament’s move from a “prospect” to a “likelihood” and from a “reasonable prospect” to a “substantial likelihood” signals a step in the direction of increased probability. Parliament changed both words in that term and strengthened each. Taken together, the composite term “substantial likelihood” sets a higher threshold than a “reasonable prospect”. However, the distance between weeding out hopeless cases to proving a substantial likelihood of success appears bigger than the distance between a reasoned possibility based on a limited weighing of the evidence and a substantial likelihood. How big the step is depends in part on the starting point. In assessing where the test has landed, the words “substantial likelihood” can be read different ways and have been in the different and limited legal contexts in which they appear.

31. Likelihood may also mean a probability or prospect of success, which may not necessarily involve being more probable than not. Given the various factors at play I believe that substantial likelihood means a real probability or prospect that all members of the jury will reduce the parole ineligibility period. A probability that tips the balance of probabilities will certainly meet this test. However, one that falls below, but is close may also be sufficient if the applicant presents a case of some real merit. Such an approach respects the separate roles Parliament gave to the screening judge and jury, increases the test requiring more than both the weeding out of hopeless cases and the cases which called for a reasoned prospect of success; takes seriously the words used; and transposes into this particular context the conclusion of the Alberta Court of Appeal in R. v. Fink that “substantial likelihood” does not necessarily involve showing something is more probable than not.

32. The new test has another aspect and impact. While both the old and new threshold tests have the same end point; being the trial judge’s assessment of what the jury may do if the application reaches them, now a screening judge is no longer being asked only to assess the reasonable prospect of what a jury might decide, but rather to assess the substantial likelihood of the applicant’s ultimate success before a jury. To the extent that the role of the judge under the previous test was to screen out hopeless cases, the judge reviewed the evidence to determine if there existed some evidence that would remove the case from the hopeless category, and it was left to the jury to weigh all the evidence on its merits. In Alberta under the reasoned possibility standard the Court of Appeal said that the screening judge would necessarily engage in a limited weighing of the evidence. In my view the substantial likelihood test calls for an increased consideration of evidence, including the most difficult and contentious issues, as it is precisely these issues that will likely steer a jury to their ultimate conclusion. As the new choice of words indicates, the substantial likelihood standard involves an augmented, more stringent threshold. The screening judge is now called upon to determine not just the possibility that a jury may decide in a certain way, but what that jury’s ultimate decision is likely to be. Given that the screening judge is now tasked with a more thorough analysis, it follows that a screening judge requires the latitude to consider the evidence in greater depth and to weigh the factors when assessing whether there is a substantial likelihood that a jury will decide the case in a certain manner. In my view this is not usurping the role of the jury but is simply performing the function of the screening judge under a substantial likelihood standard.

[31] These decisions highlight some of the challenges posed by the new test. It is difficult to define the new standard with any real precision. What can be said with certainty is that the new test is more exacting than the old test, and requires a more probing assessment of merit by the screening judge.

[32] There are other challenges associated with judicial screening, flowing from the nature of the jury’s role in faint hope applications. I will turn to that now.

The Jury as a Tool of Clemency

[33] The task of the jury in faint hope applications is different than any other task assigned to juries in Canadian law. Within this context, the jury is, fundamentally, a tool of clemency. Its task is more akin to an exercise of mercy than it is an application of law.

[34] This is evident when one considers the enormous discretion vested in the jury. The jury is directed to consider five statutory criteria. However, beyond that, their decision is largely unregulated by law. Unlike other situations, the jury is not asked to consider specific factual findings; nor is it told to apply specific legal principles to findings of fact. The jury is not asked to explain itself. Its decision is not subject to review. To quote Professor Benjamin Berger, these decisions are made “in view of the law, but not because of it”. They are similar to other conscience based decisions which supplement the law in order to achieve perfect justice (see Benjamin Berger, “The Abiding Presence of Conscience: Criminal Justice Against the Law and the Modern Constitutional Imagination” (2011) 61 U.T.L.J. 579, at 611).

[35] The unusual nature of the jury’s task was noted by the Supreme Court of Canada in R. v. Sweitlinksi, 1994 71 (SCC), [1994] 3 S.C.R. 481. Lamer C.J.C. characterized the role of the jury as “original”, stating that “the primary purpose of the s. 745 hearing is to call attention to changes which have occurred in the applicant’s situation and which might justify imposing a less harsh penalty upon the applicant”. Chief Justice Lamer catalogued the many differences between juries in faint hope cases and juries in other proceedings. He observed that the jury in a faint hope case does not apply specific rules of law; strict logic; or discernable standards of proof. Rather, the jury considers all of the evidence and makes the decision it deems best:

13 …s. 745 gives the jury a broad discretionary power. This is quite different from a trial, at which the jury must choose between two options, guilt or innocence, based on very specific rules of law. Moreover, the discretionary nature of the jury’s decision is made quite clear by the fact that Parliament did not see fit to grant any right of appeal to the Court of Appeal, although as I mentioned earlier that does not prevent an appeal to this Court with leave...

14 The discretionary nature of the decision also compels the jury to adopt a different analytical approach from that used in a trial. At a trial the jury must decide whether it has been proven beyond all reasonable doubt that the accused committed the crime with which he or she is charged. In such a proceeding the offence is generally defined by a number of elements which must all be proven for the accused to be convicted. Each element of the offence is thus a necessary condition for a conviction. At a s. 745 hearing, on the other hand, the jury does not determine whether the applicant is guilty: another jury (or, in some cases, a judge) has already performed that task. Its duty rather is to make a discretionary decision as to the minimum length of the sentence that the applicant must serve. The concept of an element of an offence cannot be transposed onto a discretionary decision. When a person makes such a decision he or she does not apply rigid logic, requiring for example that if conditions A, B and C are met, then decision X must be the result. When legislation lists various factors that a decision-maker must take into consideration a finding reached upon one or all of the factors does not necessarily mandate a conclusion leading to a specific decision. They are instead factors some of which may work in favour of the applicant and some against him, and which must be assessed and weighed as a whole in arriving at a conclusion. This is quite different from a trial where very strong evidence of one aspect of an offence cannot offset the weakness of evidence of another aspect.

15 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. (On this point see also R. v. M. (S.H.), 1989 31 (SCC), [1989] 2 S.C.R. 446, at p. 464.) [emphasis added].

[36] Major J. made similar comments, referring to the “clemency” function of the jury. As he put it: “Section 745 empowers 12 jurors, who represent the community and its conscience (R. v. Nichols, (1992), 1992 6260 (AB KB), 71 C.C.C. (3d) 385 (Alta. Q.B.)), to determine whether the applicant deserves clemency or leniency in the form of a reduction in his or her parole ineligibility”. Major J. added that, while the decision affects sentence, it is not governed by traditional sentencing principles:

While some sentencing principles, relating to rehabilitation and public protection will inevitably enter into the jurors’ minds as they consider character, conduct and the nature of the offence, sentencing principles, e.g., rehabilitation, deterrence, denunciation -- should not play any significant role at the hearing. Parliament has not seen fit to incorporate traditional principles of sentencing into s. 745, and it would be wrong for this Court to read any such principles into the section.

[37] Thus, the decision of the jury has an amorphous quality. It does not fit neatly into traditional decision making structures. The verdict is not a legal conclusion but rather an assessment of the offender’s progress. There is no specific threshold that must be satisfied before an offender can receive a reduction in parole ineligibility. It is for the jury to determine, using its best judgment, whether the offender is deserving of leniency.

[38] The function of the jury in faint hope cases is not unlike the executive power to grant clemency under the Royal Prerogative of Mercy. Like the Royal Prerogative, the jury decision is unbounded by law; it is the subject of confidential deliberations, and it is immune from review. It is perhaps no coincidence that, when faint hope came into being, mercy was a common feature of criminal justice. In every case involving a conviction for capital murder, the Executive was to determine whether or not to commute sentence. In each case, Cabinet members, acting on the advice of the Minister of Justice or Solicitor General, made a decision for or against mercy. Cabinet recommendations were passed to the Governor General (the sovereign’s representative), where they were typically endorsed.

[39] According to Carolyn Strange:

In the first decades after Confederation, when legislators framed the statutes that would govern capital crime and its sanctions for the following century, they had never intended that every offender sentenced to death might actually be hanged. Mercy was to offset rigour so that deserving subjects might be accorded the privilege of commutation. Cabinets commuted the sentences of almost half the condemned persons whose cases they considered, yet there were never formal principles to guide their decisions. Instead, cabinet assumptions about the relative dangerousness and culpability of various classes of offenders, their responses to campaigns in individual cases for or against commutation, and their evaluation of the political ramifications of their decisions, all played significant roles in determining who would die and who would be spared.

The selective use of clemency varied over time and in response to the nature of the condemned person and his or her crime, but mercy was no less a product of political demands and cultural predispositions. Only seldomly, when a minister of justice decided that a new trial was warranted, were matters of law the factors that determined whether or not a condemned person would face the gallows. Indeed, the process of cabinet review was established to allow the government to consider the merits of cases beyond their strictly legal parameters, so that this most crucial stage in the legal process, at which life and death decisions were finalized, was ungoverned by jurisprudential or penological reasoning.

(Carolyn Strange, “The Lottery of Death: Capital Punishment, 1867-1976” (1996) 23 M.L.J. 594 at paras. 54-55.)

[40] The historical underpinnings of faint hope, and the unusually broad discretion conferred on the jury, suggests that the jury is, structurally, a conduit of the executive power of mercy, delegated to the community in this instance.

The Difficulty of Screening an Act of Clemency

[41] The nature of the jury’s role poses challenges for the judges who screen these applications. As noted above, jury determinations of faint hope are rooted more in conscience than law. Judicial screening is an awkward fit in this context. It asks the judge to apply a legal standard in predicting a decision that is not, itself, governed by a legal standard.

[42] Screening is difficult because, in this context, merit is not a function of sequential logic. One cannot say: if “a”, then “b”. Merit is a matter for the jury to determine by means of its own subjective calculus. Given the almost unfettered discretion of the jury, can it ever be said that it has reached an incorrect or erroneous decision? Or does a case have merit because a jury has decided that it does? How does one predict a likelihood of success when success is based on a standard that is not defined? Is it possible to apply standards of probability without usurping the role of the jury, except, perhaps, in the most obvious of cases? Parliament has never repealed the jury, nor expressly altered its function. The judge is presumably not to substitute his or her view for that of the jury, as that would render the jury to be superfluous. Yet, how can a judge decide if there is a substantial likelihood of success without usurping the jury’s broad discretion to grant a remedy as it sees fit?

[43] The jury may consider all five criteria equally; it may place greater weight on one than others; it may base its decision on testimony from a single witness; or the collective impact of many. The jury may choose to give an offender the benefit of a significant doubt, or may err on the side of public protection. The evidence may elicit a sense of compassion, horror, outrage or forgiveness.

[44] It is difficult for a judge to gauge the emotional impact of evidence, all the more so given that the jury will hear oral testimony, while screening is based on a written record. Whittman J. adverted to this in R. v. Oczko, 2012 ABQB 121, 535 A.R. 59, at para. 35:

One of the difficulties faced by a screening judge in assessing whether it is more probable than not that there is a reasonable possibility the application will succeed, is that it is a virtual certainty that Oczko would give evidence before a jury and that the Victim Impact Statements could be read aloud by the victims to, or at least reviewed by, the jury. That evidence, especially the testimony of Oczko, in my view, is likely to have a significant effect upon the jury. The impact is difficult to predict on written materials. Notwithstanding this difficulty, the screening judge is bound to proceed only on the basis of written materials, but in applying the standard of proof, is also bound to consider as best as he or she can, how a jury would react and assess the evidence anticipated to be before them.

[45] Therefore, judicial screening in faint hope cases is different than judicial screening in other legal contexts. In other contexts, the question is whether a particular outcome is open to the jury as a matter of law. At a preliminary inquiry, the judge must assess whether there is some evidence which, if accepted, would allow for a finding of guilt. Absent evidence on each of the essential elements, there cannot be a committal to stand trial, because there is no evidence that could lawfully ground a conviction. A similar analysis is carried out by a judge faced with a motion for a directed verdict of acquittal.

[46] By way of contrast, in 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. It remains open to a jury in any case to allow an application, but Parliament has stemmed the tide of cases that will make it to that stage. It has built a judicial dam at the front end of the process.

[47] What flows from this? I suggest that the introduction of judicial screening was a significant development in the evolution of the faint hope process. Screening was borne of a desire to reduce the number of jury hearings, either because too many cases failed due to lack of merit, or perhaps, because too many cases succeeded with a lack of merit. In either event, it derogated from the absolute right of offenders to appeal to a jury for clemency, just as it derogated from the jury’s absolute entitlement to award clemency. This explains, I suggest, why judges in the early cases interpreted the reasonable prospect standard as meaning “not hopeless”. It was recognized that the jury had a broad discretion and that most cases should be placed before them.

[48] This changed with the decision of the Court of Appeal in Phillips. It also changed with the 2011 amendments. Both the old test – as interpreted post-Phillips – and the new test, require that there be a qualitative assessment of merit by a judge. Under the reasonable prospect test, the question was whether there is some evidence upon which a reasonable jury could legitimately order a reduction in parole ineligibility. On the new test, the question is whether there is evidence on which a reasonable jury would be substantially likely to order a reduction in parole ineligibility. In both instances, the judge’s assessment of merit usurps the jury’s broad discretion to grant relief.

[49] Significantly, the issue in this case is not whether the introduction of judicial screening violates the Charter. At the time of both the applicant’s offence and his conviction, judicial screening was already in place, by virtue of the 1997 amendments. The applicant acknowledges that he is, at the very least, subject to screening on the 1997 standard. What he contests is the application of the 2011 standard to his case. He argues that the retrospective application of a more stringent standard violates his rights under s. 11(h) of the Charter. I will now turn to that issue.

Section 11(h) of the Charter

[50] Section 11(h) of the Charter reads as follows:

11. Any person charged with an offence has the right

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.

[51] As stated by the Supreme Court of Canada in Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] A.C.S. no 20: “Parliament’s purpose in enacting s. 11(h) was to protect against double jeopardy”, including double punishment. Section 11(h) prohibits the state from punishing an offender more than once for a single offence, or from adding to punishment after the fact. The effect of s. 11(h) is to crystallize punishment at the time that sentence is finally imposed. The state cannot thereafter increase punishment by introducing new proceedings, or by introducing other changes, in the absence of new proceedings, that have the effect of increasing the punitive sanction.

Defining Punishment: The Rodgers Test

[52] All of this begs the central question of what the term “punishment” means in the context of s. 11(h). The Supreme Court of Canada has taken an expansive approach in defining the term, though it has been quick to point out that not every consequence of conviction is punitive. The situation must involve “true penal consequences”. This will arise when fines and imprisonment are imposed in the disciplinary context “for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity” (R. v. Wigglesworth, 1987 41 (SCC), [1987] 2 S.C.R. 541, at p. 561). It will also arise when a sanction less severe than a fine or imprisonment is imposed for a punitive purpose. In R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, Charron J. identified the central features of punitive sanctions, building them into a two-part test:

As a general rule, it seems to me that the consequence will constitute a punishment where it forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence and the sanction is one imposed in furtherance of the purpose and principles of sentencing (para. 63).

[53] On the Rodgers test, a consequence is punishment if it forms part of the “arsenal of sanctions”, and is used to further the purpose and principle of sentencing.

The Development in Whaling

[54] In Whaling, the Supreme Court of Canada further expanded the definition of punishment. Wagner J., writing for a unanimous court, held that retrospective changes to parole eligibility constituted punishment, even though they did not satisfy the two-part test from Rodgers. The facts of the case made it necessary to supplement the Rodgers test and create a new category of “punishment” for constitutional purposes.

[55] At issue in Whaling was the Abolition of Early Parole Act (AEPA) which eliminated accelerated parole review of persons serving federal sentences. The effect of the Act was to delay the day parole eligibility dates of the appellants, who had all been sentenced before the AEPA came into force. The question was whether the delay of parole eligibility, flowing from the retrospective application of the AEPA, violated s. 11(h) of the Charter. The issue was characterized by Wagner J., for the court, as follows:

Rather than requiring us to determine whether a discrete sanction is punitive in nature, this case requires us to determine whether retrospective changes to parole ineligibility, which modify the manner in which an existing sanction is carried out, constitute punishment.

[56] Wagner J. concluded that “…retrospectively imposing delayed parole eligibility on offenders who have already been sentenced constitutes punishment” (para. 62). On this basis, the AEPA was held to violate the Charter.

[57] On the current state of the law, a consequence will be punitive if:

1. It satisfies the test from Rodgers, namely, it is similar in nature to the types of sanctions available under the Criminal Code and is imposed in furtherance of the purpose and principles of sentencing;

or

2. It satisfies the test from Whaling, namely, it is a retrospective change to the conditions of the sentence that results in an increase in punishment.

[58] Whaling marks an important chapter in the evolution of punishment. It is significant in three respects. First, Whaling recognizes the distinction between a sentence and the conditions under which a sentence is served. The change to the parole system in Whaling did not affect or change the offender’s original sentence. However, by altering parole status, the legislation did change the manner in which he served his sentence. It affected whether he was to serve his sentence in jail, or under supervision within the community. It affected the conditions of the sentence, even though it did not affect the sentence itself.

[59] The second major breakthrough in Whaling is the recognition that a retrospective change to the conditions of a sentence could amount to punishment, even though the sentence itself was not affected, and no new or separate proceedings had been instituted.

[60] The third critical aspect of Whaling is the creation of a framework for determining when retrospective changes to the conditions of a sentence will increase punishment. The court stressed that many changes to parole policy and/or practice will not offend the Charter even though they affect individual liberty. Section 11(h) is only violated when punishment is increased. How does one make that determination? Wagner J. refrained from stating any absolute formula, but identified, as the dominant consideration, the offender’s expectation of liberty at the time sentence was imposed. If the change retrospectively thwarts an offender’s settled expectations of liberty, it will be seen as increasing punishment. This was explained at paras. 58-60:

58. … First of all, the Court recognized that an offender has an expectation of liberty that is based on the parole system in place at the time of his or her sentencing, and that thwarting that expectation may engage a constitutionally protected liberty interest. Changes to the parole system that add retrospectively to the offender’s incarceration may violate s. 7 even if they do not affect the sentence itself. As McLachlin J. put it in Cunningham: “One has ‘more’ liberty, or a better quality of liberty, when one is serving time on mandatory supervision than when one is serving time in prison” (p. 150).

59. This being said, the Court recognized in Cunningham that not all expectations of liberty in the parole context are constitutionally protected. 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.

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).

[61] The operative question is: Does the legislative action, applied retrospectively, so frustrate the offender’s reasonable expectation of liberty that it amounts to new or increased punishment? Stated differently, is the impact on liberty so significant and so different than that anticipated, that it has altered the effect of the original sentence?

Application of the Test in this Case

[62] How should one characterize the amendment in this case? Does it concern punishment? Does it result in an additional sanction or consequence that meets the two-part test in Rodgers? Does it involve a retrospective change to the conditions of a sentence that so thwarts the offender’s expectations of liberty that it amounts to new punishment? Or is this a situation in which the change to the law is not of a punitive character; or is not sufficiently punitive to engage the scrutiny of s. 11(h)?

Does the Amendment Concern Punishment?

[63] It is appropriate to begin by asking whether the amendment to s. 745.61 of the Code is concerned with punishment at all. The Crown says that it is not. According to the Crown, the amendment relates to offender management and/or sentence administration. It does not change the sentence to be served by the offender, and it does not change the conditions of the sentence. It is an administrative change and does not trigger Charter review. If the Charter is engaged, the Crown says that any interference with liberty is in accordance with the principles of fundamental justice and therefore Charter compliant.

[64] The Crown relies upon Cunningham v. Canada, 1993 139 (SCC), [1993] 2 S.C.R. 143. Mr. Cunningham had been sentenced to 12 years in prison for manslaughter. Under the parole legislation in force at the time of his sentence, he was entitled to be released on mandatory supervision after serving approximately two-thirds of his sentence, provided that he was of good behaviour. In 1986 the Act was amended to allow the Commissioner of Corrections, within six months of the presumptive release date, to refer a case to the National Parole Board, where it was believed that the offender was likely to commit an offence causing death or serious harm. The Commissioner referred Mr. Cunningham’s case to the Board, and it ordered that he be detained until his sentence expired, subject to annual reviews.

[65] McLachlin J., (as she then was), ruled that, while the change did deprive Mr. Cunningham of his liberty, it did not offend the Charter. McLachlin J. characterized the change as one affecting “the form in which a sentence is served”. She stated in para. 19:

19. The balance is struck by qualifying the prisoner’s expectation regarding the form in which the sentence would be served. The expectation of mandatory release is modified by the amendment permitting a discretion to prevent early release where society’s interests are endangered. A change in the form in which a sentence is served, whether it be favourable or unfavourable to the prisoner, is not, in itself, contrary to any principle of fundamental justice. Indeed, our system of justice has always permitted correctional authorities to make appropriate changes in how a sentence is served, whether the changes relate to place, conditions, training facilities, or treatment. Many changes in the conditions under which sentences are served occur on an administrative basis in response to the prisoner’s immediate needs or behaviour. From time to time, for example, new approaches in correctional law are introduced by legislation or regulation. These initiatives change the manner in which some of the prisoners in the system serve their sentences.

[66] Cunningham remains good law, despite the more recent holding of the court in Whaling. In Whaling, the court held that changes to the conditions of sentence will amount to new punishment if they frustrate settled expectations of liberty. However, short of those extreme circumstances, changes to the conditions of sentence will not trigger the prohibition in s. 11(h). In Whaling, the court affirmed Cunningham, stating that “various changes in the management of an offender’s parole are not punitive, even though they may engage the offender’s liberty interest by marginally increasing the likelihood of additional incarceration” (para. 57).

[67] The Crown maintains that the amendment at issue in this case is similar to that in Cunningham; that it concerns management of offenders’ parole. I do not agree. Rather, I accept the applicant’s position that, in this case, the amendment is necessarily concerned with punishment. The subject matter of the law is the faint hope process. The faint hope process is a part of the original sentence imposed for murder. Therefore, the subject matter of the law is part of the original sentence for murder. Using the Rodgers test, the subject matter of the law is part of the “arsenal of sanctions” used in, and for the purpose of, sentencing.

[68] In Whaling, the court affirmed the distinction between a sentence and the conditions under which it is served. Matters of parole will usually fall into the latter category. They affect the conditions of the sentence, but not the sentence itself. This was the finding in Cunningham. However, eligibility for parole is different than actual parole, particularly in the context of a murder conviction. The offender’s eligibility to apply for parole is part of sentence; the offender’s suitability for release on parole is not. One concerns fitness of sentence (eligibility) and the other fitness for release (actual parole).

[69] This distinction was drawn in Boeyen v. Canada (Attorney General), 2013 FC 1175, [2013] A.C.F. no 1269. The issue was whether a change in the statutory test for parole (as opposed to parole eligibility) affected the punishment of a person who had been designated a dangerous offender. Russell J. stated:

[70] The question this finding … raises for the present matter is whether a change in the statutory test for parole (as opposed to parole eligibility) can have the same effect. My view is that there is an important difference: parole determinations turn on considerations that are not related to the fitness of the sentence (they relate rather to fitness for release). ... Parole review does not relate to punishment for past crimes, but rather involves a determination of whether an applicant is (in the present) fit for release.

[70] Where the offence of murder is concerned, parole eligibility is an integral part of the sentence imposed for the crime. In R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, Iacobucci J. stated that the distinction between first and second degree murder “clearly indicates that parole ineligibility is part of the punishment and thereby forms an important part of sentencing policy”. In a case of first degree murder, parole eligibility is addressed in two ways: 1) by the imposition of the mandatory 25 year period of parole ineligibility; and 2) by the right to apply to reduce that period after 15 years. These two elements co-exist at the time sentence is imposed. Each must be understood as it affects the other. I say this for four reasons.

[71] First, this approach finds support in the case law. In R. v. Bowen (1990), 1990 ABCA 317, 59 C.C.C. (3d) 515 (Alta. C.A.), the court was asked to consider the constitutional validity of the sentence for first degree murder arising out of the murder of a police officer or prison official. In upholding the sentence, Cote J.A. observed that, for all intents and purposes, the parole ineligibility period was one of 15 years, rather than 25. He stated at p. 521:

Even when all that is proved, Parliament does not really deny the accused all chance of parole for 25 years. In form that may be the sentence, but in form the sentence (like many others) is for life imprisonment. Section 745 (old s. 672) of the Code allows the convict to apply after 15 years to reduce or remove the 25 year ineligibility. His application is to a new jury.

And, at p. 522:

Turning to possibilities of parole, here the effective sentence is a minimum of 15 years without parole eligibility. As noted, parole can be permitted after about 15 years. The apparent 25 year minimum is purely procedural; it is not real (the appellant does not attack that procedure).

[72] The analysis in Bowen was adopted by the Quebec Court of Appeal in R. v. Lefebvre (1992), 1992 3937 (QC CA), 72 C.C.C. (3d) 162 (Que. C.A.).

[73] Second, this approach is supported by the structure and language of the Criminal Code, which presents the sentencing provisions for murder and the provisions for faint hope as statutory partners. The provisions governing faint hope applications appear in Part 23 of the Criminal Code, which is broadly entitled “Sentencing”. Sections ss. 745.6 – 745.64, which govern faint hope, immediately follow ss. 745 – 745.51, which govern determinations of sentence in murder cases.

[74] Third, this approach has historical support. As discussed above, the original purpose of faint hope was to temper the perceived harshness of the 25 year period of parole ineligibility, which exceeded periods previously recognized in Canada and other jurisdictions. It was, from the outset, contemplated that the 25 year period would operate in tandem with faint hope.

[75] Fourth, and finally, this approach is consistent with comments made by the Government about Bill S-6 in official Hansard. For example, when the Hon. Robert Nicholson, Minister of Justice and Attorney General of Canada, addressed the Standing Committee on Legal and Constitutional Affairs on June 9, 2010, he stated:

Honourable senators, as you are no doubt aware, there is a fundamental constitutional principle that a sentence cannot be changed after it is imposed. Both the mandatory parole ineligibility periods, as well as the availability of faint hope are part of the life sentence for murder. Repealing the faint hope regime as it relates to the more than 1,000 already-incarcerated murderers would be a retroactive change in sentence that would not expected to survive a court challenge.

The Government itself acknowledged that the availability of faint hope is part of the life sentence for murder.

[76] For all of these reasons, I conclude that the amendment, which is aimed at faint hope applications, is concerned with punishment. It is directed at a part of the mandatory sentence imposed for murder. It concerns the sentence itself; and not merely the conditions under which the sentence is served.

[77] This leads to the critical questions. Does the amendment increase or result in double punishment?

Does the Amendment Increase Punishment?

[78] Section 11(h) of the Charter is only infringed if the purpose or effect of the legislation is to retrospectively add to the offender’s punishment. The applicant argues that the amendment to s. 745.61 offends the Charter in both its purpose and effect. He says that both the purpose and effect of the legislation is to require persons convicted of murder to spend more time in jail.

Purpose

[79] Dealing first with legislative purpose, I do not agree that Bill S-6 has an unconstitutional purpose. It is true that the Bill was initially titled “Serious Time for the Most Serious Crimes” before being renamed in the Senate. It is also true that some comments made by the Government in support of the Bill could, taken in isolation, support the applicant’s claim. However, when the comments and the Bill are viewed as a whole, I am unable to conclude that the Government’s true intention was to increase punishment of offenders.

[80] The Hon. Robert Nicholson stated in committee:

…the second thing Bill S-6 does will be to tighten up two of the three stages in the current faint hope application procedure with the goal of restricting access for these offenders [currently in the system]. Honourable Senators, the rationale for these amendments is straightforward: To restore truth in sentencing, to lessen the suffering of the families and loved ones of murder victims; and to protect society by keeping potentially dangerous criminals in custody for longer periods of time (Proceedings of Standing Committee on Justice and Legal Affairs, Bill S-6, An Act to amend the Criminal Code and another Act, Issue 9 (June 9, 2010)).

[81] While the Minister spoke of “keeping potentially dangerous criminals in custody for longer periods of time”, this must be understood in the context of the Bill itself. The amendment at issue in this case is the elevated screening standard in s. 745.61 of the Code. The objective of that amendment, narrowly construed, was to ensure that only applications with genuine merit would come before juries. It was Parliament’s intention to better screen out, in advance, those cases that do not have “a substantial likelihood of success”. This initiative, and others in the Bill (e.g. creation of timelines) serve the broader objective of protecting victims’ families from the unnecessary anguish of hearings in frivolous cases. It also, incidentally, reserves judicial resources for cases that deserve a hearing.

[82] It was within the Government’s mandate to streamline the faint hope process in order to lessen re-victimization of persons affected by the crime. The objectives underlying Bill S-6 represent legitimate Government policy in the matters of criminal law.

[83] Furthermore, the Government was explicit in its desire not to increase punishment. This was why the Government did not abolish faint hope in its entirety. It acknowledged, in its remarks in the House, that, to do so, would increase punishment for offenders already in the system.

[84] The applicant has failed to establish that the amendment of s. 745.61 was, in purpose, unconstitutional.

Effect

[85] This leaves the question of whether the legislation is unconstitutional in its effect. Does it, by effect, retrospectively increase punishment for offenders in the system?

[86] The issue pivots on the juxtaposition between the old and the new test for screening faint hope applications. On the old test, a case went before a jury for hearing if it was demonstrated, on the balance of probabilities, to have “a reasonable prospect” of success. On the new test, only those cases demonstrated on the balance of probabilities to have a “substantial likelihood” of success will be heard before a jury.

[87] The applicant argues that there will be cases that would have been referred to jury on the old test, but will not be referred to jury on the new test. These are cases that have a reasonable prospect of success, but not a substantial likelihood of success. It is said that it is not open to Parliament to retrospectively deprive those offenders of a jury hearing. Without a jury hearing, there can be no reduction in parole ineligibility. Without a reduction in parole ineligibility, offenders will serve a longer period of time in jail before they can apply for release. In this way, it is said that the amendment increases punishment.

[88] On the surface, the applicant’s argument has a persuasive quality. However, it does not ask the correct question. The question is not whether the liberty of some offenders may be affected by the law. The question is whether the liberty of an offender is affected to such an extent that there is an increase in punishment. I find that the amendment at issue in this case does not add to punishment, even though it might hypothetically lead to a longer period of incarceration for some offenders.

[89] First, it is important not to overestimate the difference between the old and the new test. We now know, with the benefit of hindsight, and the intervening decision in R. v. Phillips, that the old test - reasonable prospect of success - is more stringent than was initially thought. It requires asking something more than whether the application is “not hopeless”. Properly interpreted, a reasonable prospect of success requires some meaningful assessment of merit. While a “substantial likelihood of success” is a higher threshold than a “reasonable prospect of success”, it is difficult to concretely define the difference between the two.

[90] This leads to the second point, namely, that the hypothetical offender who falls through the cracks remains just that: a hypothetical offender. Counsel have not been able to describe specific circumstances that would warrant a jury hearing on the old test but not on the new standard. Even if one could fathom a scenario, it is not clear that this is the yardstick by which to measure constitutionality. Reasonable hypotheticals are not to be found in extreme or unusual or, perhaps even real, cases (R. v. Morrissey, 2000 SCC 39, [2000] 2 S.C.R. 90). They are to be found in common, every day examples or alternatively, those that typically arise within an unusual context.

[91] The applicant has referred to statistics in support of his claim that deserving offenders will be denied jury hearings on the new screening test. He points out that, on the old test, over 80 percent of cases presented to a jury were successful. The applicant says that, if the number of cases that go before a jury is reduced, there are bound to be cases that would have succeeded before a jury but are screened out on the new standard.

[92] I find the statistics to be less than helpful. First, there is some disagreement about what the precise figures are. The Crown relies upon a different statistic suggesting a lower rate of success. Second, the population of cases is skewed, in that the statistic includes results of faint hope applications before 1997, when screening was introduced. Third, we do not know how meritorious these cases were. Perhaps they would all satisfy the substantial likelihood test. Perhaps not. The point is that we do not know and therefore cannot use this statistic to draw any firm conclusions about the impact of the new screening standard.

[93] Finally, even if there are cases that would have received a hearing on the old test, but would be screened out on the new test, it does not automatically follow that the law is unconstitutional. Accepting for the moment that there is a class of offenders whose liberty will be affected, this is only a partial recipe for a Charter breach. Cases such as Cunningham and Whaling confirm that legislation may retroactively affect the liberty of an offender, yet not violate the Charter. The s. 7 right, of which s. 11 is merely an example, tolerates deprivation of liberty if it takes place in accordance with the principles of fundamental justice. Section 11(h), similarly, does not prohibit deprivations of liberty per se. It prohibits deprivations of liberty that effectively change the original sentence; those deprivations that add to, or increase, punishment.

[94] In Whaling, Wagner J. offered a framework for determining whether retrospective changes increase punishment. While, in Whaling, the court was concerned with changes to the conditions of sentence, the same reasoning must logically apply when the change is to the sentence itself. Wagner J. identified, as the central concept, the offender’s settled expectation of liberty, which crystallizes at the time sentence is imposed. This is the yardstick by which to measure retrospective changes. A change will increase punishment if it frustrates or thwarts settled expectations of liberty. For ease of reference, I will once again reproduce a passage from para. 60 of the judgment:

…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.

[95] Applying this “context-specific” test in the case at hand, what were the settled expectations of the applicant with respect to faint hope? At the time the applicant was convicted of first degree murder, the 1997 screening standard was already in place. Therefore, the applicant would have expected:

a) that, after 15 years, he could apply for a reduction in his parole ineligibility period;

b) that his written application would be subject to a preliminary screening of merit by a judge. He would only receive a hearing before a jury if he passed the screening threshold; and

c) if a hearing before a jury were held, the jury would be instructed to consider five criteria in assessing whether the period of parole ineligibility should be reduced. Beyond that, the jury would be given a broad discretion to determine whether the offender is entitled to clemency.

[96] These expectations remain intact. They have not been affected by the legislative amendment.

[97] Should the offender’s expectation of liberty be defined by reference to the screening standard in place when he was convicted? Did the applicant reasonably expect that his application would be screened for a reasonable prospect of success, rather than a substantial likelihood of success? I suggest not. There is no reason to define the expectation at this level of minutiae. It would not meaningfully advance the inquiry to do so.

[98] The content of the screening standard would not likely affect the conduct of offenders. It would be folly to suggest that an offender will tailor his rehabilitative efforts, or his 745.6 application, to meet a particular screening threshold. An offender is unlikely to prepare a case that only has a reasonable prospect of success, or even a substantial likelihood of success. The offender wants to present a case with the highest probability of success imaginable. Screening is merely a stop on the way to a jury hearing. The ultimate goal is to persuade a jury to reduce the period of parole ineligibility. This provides the incentive to mount a compelling case, whatever the screening standard happens to be.

[99] Had Parliament abolished faint hope for offenders in the system, this would have increased punishment. It would have been the functional equivalent of the legislation in Whaling, which eradicated the possibility of early parole. Had judicial screening been introduced for the first time, this too would have represented a significant change to the process. As discussed above, judicial screening curtails offenders’ rights to plead for clemency before a jury. I refrain from commenting on the Charter implications of screening as a general concept. What is significant for present purposes is that screening was already in place at the time the applicant committed his offence, and the time that he was convicted of it. The applicant has no legitimate basis on which to claim to unfettered access to a jury.

[100] The change that is at issue in this case – the substitution of one screening standard for another – is not constitutionally significant. It does not alter the sentence that was imposed at the time of conviction, or the expectations of liberty that attached to that disposition. The change is akin to a procedural amendment that does not affect substantive rights. It affects the mechanics of the decision making process, but not the decision itself.

[101] In this regard, the case of in R. v. Chaudhary (1999), 104 O.T.C. 76 (Sup. Ct.) is instructive. In Chaudhary, Lesage C.J.S.C. dealt with the 1997 amendment to the faint hope legislation that required the jury to be unanimous. Prior to that time, a jury could reduce a period of parole ineligibility by a majority of two-thirds. As in the present case, one could conceive of a situation in which the legislative change could affect an offenders’ liberty. If an offender could persuade a majority of the jurors, but not all of them, he or she would be denied a reduction in parole ineligibility.

[102] Lesage C.J.S.C. held that the amendment was procedural in character. He noted that “this change from two-thirds to unanimity does not make the exercise significantly different, nor does it significantly change the criteria to be established” (para. 9). Expressed differently, one could say that the change did not frustrate the settled expectations of the offender. Mr. Chadhary expected that his faint hope application would be heard by a jury. It was heard by a jury. The procedural mechanics of the decision shifted, but it was, in substance, the same. The same conclusion was reached by Brunton J. in Fabrikant v. Quebec (Attorney General), [2008] QCCS 1637 (S.C.).

[103] The result in Chadhary is directly applicable to this case. I find that the amendment to s. 745.61 does not, in substance, change the faint hope process. It does not increase or add to punishment. It does not violate s. 11(h) of the Charter.

CONCLUSION

[104] For all of these reasons, I find that the applicant has failed to demonstrate that the amendment to s. 745.61 violates s. 11(h) of the Charter. The change does not add to or increase punishment. It is of a procedural character, and does not affect substantive rights. While it might affect liberty of a hypothetically described offender, this would not, in substance, change the sentence imposed at the time of conviction.

[105] The applicant did not press s. 7 of the Charter during oral argument, preferring to mount his argument under s. 11(h) of the Charter. Accordingly, I will not deal with s. 7 at any length, save for observing that, in accordance with Cunningham, Chadhary and Fabrikant, any deprivation of liberty flowing from the amendment comports with the principles of fundamental justice.

[106] Because I find that the provision operates in a manner consistent with the Charter, I need not consider whether it could be upheld as a reasonable limit under s. 1 of the Charter.

[107] I dismiss the application for a declaration that s. 745.61 is unconstitutional. Mason Jenkins’ application for a reduction in his parole ineligibility will be determined in accordance with s. 745.61, as amended.

Original signed “Pomerance J.”

Renee M. Pomerance

Justice

Original Released: May 27, 2014

Corrected Released: May 29, 2014

Corrigendum

In paragraph [5], line 8, the sentence: “The change is of a procedure character and does not affect substantive rights.” The word “procedure” has been changed to “procedural” and the sentence now reads: The change is of a procedural character and does not affect substantive rights.

In paragraph [7], line 3, the sentence: “I will use it from time in these reasons.” The words “to time” have been added after the word “time” and the sentence now reads: I will use it from time to time in these reasons.

In paragraph [14], lines 8-14, the following sentences have been corrected:

“This is a logical supposition given that the 25 year period was, by all accounts of the time, unusually harsh.” The word “of” has been changed to “at” and the sentence now reads: This is a logical supposition given that the 25 year period was, by all accounts at the time, unusually harsh.

“Prior to the amendment, the average time served before parole release in non-capital murder was between 12 and 13.2 years.” The phrase “between 12 and 13.2” has been changed to “7.7” and the sentence now reads: Prior to the amendment, the average time served before parole release in non-capital murder was 7.7 years.

“In cases of capital murder commuted to life, the average time served was between 6.2 and 7.7 years (see House of Commons Debates, 35th Parl., 2nd Sess., No. 62 (14 June 1996) at 3855).” The phrase “between 6.2 and 7.7” has been changed to “13.2” and the citation has also been corrected to read: House of Commons Debates, 30th Parl., 1st Sess., Vol. 13 (31 May 1976) at 13988 (Hon. Don Mazankowski).

COURT FILE NO.: CR-13-2809-MO

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MASON JENKINS

Applicant

RULING ON CONSTITUTIONAL VALIDITY OF s. 745.61 OF THE CRIMINAL CODE

Pomerance J.

Released: May 27, 2014

Corrected Released: May 29, 2014