ONTARIO

SUPERIOR COURT OF JUSTICE

BRACEBRIDGE COURT FILE NO.: CR-13-28

DATE: 20140929

CORRECTED DATE: 20141021

BETWEEN:

James Frost

– and –

Attorney General of Canada

B.A. Callender, for the Applicant, who was present

M.J. Sims, for the Respondent

HEARD: September 17, 2014

Corrected decision: The text of the original decision was
corrected on October 21, 2014 - the description of the correction
is appended

REASONS FOR DECISION ON APPLICATION

R. MacKINNON J.

[1] The applicant seeks orders granting release under sections 7, 10, 11(i) and 24(1) of the Charter in the nature of a Writ of Habeas Corpus with Certiorari in aid, in order to reinstate his eligibility for accelerated parole review (APR) at one-sixth of his October 27, 2011 sentence in accordance with the Corrections and Conditional Release Act, S.C. 1992, c.20 (C.C.R.A.), sections 119.1 and 125-126.1, now repealed. He argues that the transitional provisions of the Abolition of Early Parole Act (AEPA) which deprive him of APR, violate his rights.

Background

[2] Mr. Frost was arrested and charged in 2003 with conspiracy to import 1,360 kilograms of cocaine. He was first convicted in 2007 and sentenced in 2008. He successfully appealed both conviction and sentence. He was subsequently convicted and sentenced again in October, 2011 and is currently serving a global 16.5 year sentence for which he was given eight years credit for pre-trial detention.

[3] The AEPA, which abolished APR for most offenders in Canada, came into effect March 28, 2011, some seven months before Mr. Frost was convicted and sentenced. The prison authorities have deemed him ineligible for APR which was repealed on March 28, 2011. That legislation applied to all pre-AEPA eligible offenders who had not yet received an APR.

[4] Mr. Frost has now passed his full parole eligibility date. He argues that he is entitled to benefit from the more favourable APR process rather than being subjected to the normal parole process which involves a more onerous test for him to meet. He contends that it is the date on which he committed the offence that establishes the parole review process that should be applied.

[5] A Writ of Habeas Corpus is issued as of right where an applicant shows that there is cause to doubt the legality of his or her detention. So long as an applicant raises a legitimate ground upon which to question the legality of his or her deprivation of liberty, the onus shifts to the respondent to justify its lawfulness of the detention.

Issues

[6] This court must determine whether:

a. the definition given to the word “punishment” by the Supreme Court of Canada in the context of paragraph 11(h) of the Charter applies in the context of paragraph 11(i); and

b. the abolition of Early Parole Act (AEPA) amounts to an alteration of his punishment that occurred between the time he committed the offence and the date of his sentencing; and

c. Mr. Frost should benefit from the APR scheme because he committed the offence for which he was convicted prior to modifications of the AEPA on March 28, 2011.

Positions of the Parties

[7] Mr. Frost submits that:

a. he is currently being detained arbitrarily in breach of the Charter;

b. he is entitled to be punished according the statute in force at the time of the commission of his offence;

c. paragraph 11(i) of the Charter renders subsection 10(1) of AEPA inoperative since the period of ineligibility for parole is an integral part of the sentence;

d. subsection 10(1) of AEPA was declared to be invalid in its entirety and unjustified under section 1 of the Charter by the Supreme Court of Canada in Attorney General v. Whaling 2014 SCC 20 and that decision is determinative in any consideration of the application of paragraph 11(i) of the Charter on the retroactivity of the application of the AEPA;

e. the British Columbia Court of Appeal in Liang v. Canada (Attorney General) 2014 BCCA 190 ordered the release of an offender in a case similar to Mr. Frost’s;

f. the Parole Board must proceed with the review of his file and the Correctional Service must prepare the file in accordance with APR. He argues that the Correctional Service has no discretion to exercise;

g. a Writ of Habeas Corpus must be issued in order to require the Parole Board to proceed with an accelerated review of his case, thus restoring lawfulness to the conditions of his detention.

[8] The Crown submits that:

a. the Supreme Court never held in Whaling and has never held in any case that the applicable parole system for an offender is that which was in force at the time the offence was committed;

b. at the time he committed his offence Mr. Frost had no “settled expectation of liberty”;

c. at the time AEPA was enacted, Mr. Frost had not been sentenced; and

d. the Whaling decision permits Parliament to repeal APR prospectively for offenders who, like Frost, had yet to be sentenced.

Analysis

[9] James Frost was convicted in 2011 of a conspiracy in or about 2003 to import more than a tonne of cocaine into Canada. At the time he committed his criminal act, the Corrections and Conditional Release Act (CCRA) provided for an accelerated parole review process (APR). The conviction was entered and sentence imposed some seven months after APR was abolished by Parliament.

[10] APR was first introduced in Canada in November, 1992, but applied only to full parole. In 1997, APR – eligible offenders were permitted to apply for day parole at one-sixth of their sentence instead of at six months before one-third of their sentence.

[11] APR differed from the normal parole process in at least following ways:

a. The Correctional Service of Canada, in an automatic and simplified procedure, referred all APR – eligible cases to the Parole Board automatically, and generally by way of a paper review.

b. The Board had no discretion but to direct release on parole if it found an offender was unlikely to commit an offence involving violence. In the normal parole test, however, the Board does have discretion and can consider an offender’s risk of reoffending generally;

c. After 1997 the APR process for day parole was triggered earlier than the normal day parole.

[12] Following Parliamentary hearings and legislative debates, Parliament determined that offenders be subject to a comprehensive risk assessment by the Parole Board before being released on parole.

[13] In Whaling, supra, the Supreme Court considered the application of section 11(h) of the Charter and determined, in that context, subsection 10(1) of AEPA to be constitutionally invalid. It held that AEPA could not be applied retrospectively since that offender had already been punished and his expectation was settled at the time of sentencing. It was the change to parole eligibility which modified an already existing sanction that constituted punishment. Concepts of expectation of liberty at the moment the punishment is settled underpin the decision in Whaling. That court went on at para. 80 to deal with prospective application and repeal of APR by AEPA as follows:

…having the repeal apply only prospectively was an alternative means available to Parliament that would have enabled it to attain the objectives of reforming parole administration and maintaining confidence in the justice system without violating the section 11 rights of offenders who had already been sentenced.

There was nothing in Whaling which declared unconstitutional for all purposes the prospective application of the repeal of APR.

[14] APR was a system that replaced normal parole if an offender met conditions. AEPA came into force March 28, 2011 to respond to correctional policy considerations which fell within the general mandate of the Parole Board. The Board does not take the time of commission of the offence into consideration, - but rather considers the time of sentencing, - in establishing the parole regime to be applied to an offender.

[15] An offender has an expectation of liberty that is based on the parole system in place at the time of her or his sentencing. Changes brought about by AEPA are similar to the changes made in the sentence management process that was found to be in compliance with section 7 of the Charter in Cunningham v. Canada (1993), 1993 139 (SCC), 2 S.C.R. 143. While changes to the conditions of a sentence already issued can constitute punishment, prospective changes to parole administration where a sentence has not been imposed, merely constitute Parliament’s exercise of its authority to administer sentences and do not engage the protection provided under section 11(i) of the Charter.

[16] At the time he was sentenced to a lengthy term of imprisonment, Mr. Frost would have been aware that a parole system was in place. He was not frustrated by the repeal of APR, given that it had already been repealed before his sentence. He is eligible for the normal parole process that will take his individual circumstances into consideration.

[17] The Whaling decision, at para. 1, holds that changes to parole eligibility conditions do not alter the sentence itself. I am satisfied and find that the prospective application of the repeal of APR does not amount to a change in punishment that occurred between the time of the commission of the offence and the time Mr. Frost was sentenced for that offence. Accordingly, s.11(i) of the Charter is not engaged. The repeal of a statute is not an increase in punishment yet to be imposed.

[18] Mr. Frost had not been sentenced or charged when he committed his offence. At those times he had no legitimate or settled expectation of liberty with regards to his sentence. I find that he cannot benefit from the APR regime since he received his sentence after its repeal by AEPA.

[19] I have considered the decisions from the trial and appeal courts in British Columbia in Liang v. Canada (Attorney General), 2014 BCCA 190. I have also read the decision of Tausendfreund J. in Oraha v. Canada (Attorney General), 2014 ONSC 2813. Oraha was a retrospective case, unlike the case at bar. I disagree with the British Columbia decisions in Liang, as did Perreault J. of the Quebec Superior Court in Parent v. Attorney General et al (case file 500-36-007153-144). If there is no legitimate expectation of liberty, as is the case of Mr. Frost, the can be no crystallization of punishment. There clearly was no such legitimate settled expectation of punishment at the time of the commission of the offence. Any such expectation at that time would be rank speculation.

[20] I have found that the prospective repeal of APR by AEPA does not constitute punishment and is not contrary to fundamental justice.

[21] The Charter does not protect against insignificant or trivial limitations of rights. The Supreme Court held in Cunningham v. Canada 1993 139 (SCC), 1993 2 S.C.R. 143, at para 15 that the qualification of a prisoner’s expectation of liberty does not necessarily bring the matter within the purview of section 7 of the Charter. The qualification must be significant enough to warrant constitutional protection. It also held that to require all changes to the manner in which a sentence is served be in accordance with the principles of fundamental justice would trivialize the protections under the Charter. I find that the prospective repeal of APR by AEPA is not a “substantial change in conditions amounting to a further deprivation of liberty”, in the words of that case. 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. It is only once sentenced that an offender requires constitutional protection from any subsequent change to the parole system that substantially increases the risk of additional incarceration. No such protection attaches at offence commission.

[22] There has been no infringement of Mr. Frost’s rights as guaranteed by sections 7, 10(c), and 11(i) of the Charter. Even if I had determined that Mr. Frost’s Charter rights had been breached, that breach would have been justified under section 1. The prospective repeal of APR is a reasonable restriction that is demonstrably justified in a free and democratic society.

[23] For these reasons the application is dismissed.

R. MacKINNON J.

Released: October 21, 2014

Para. 20 now reads: “ I have found that the prospective repeal of APR by AEPA does not…”