ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-010
DATE: 20190929

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Raymond Lapple

– and –

Attorney General of Canada

Applicant appeared in person

Mr. J. Kapches and Mr. M.J. Sims, for the Respondent

HEARD: September 17, 2014

REASONS FOR DECISION ON APPLICATON

R. MacKINNON J.

1The Applicant seeks orders 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 to reinstate his eligibility for accelerated parole review (APR) at one sixth of his February 20, 2013 sentence in accordance with the Corrections and Conditional and Release Act, S.C. 1992, c.20 (C.C.R.A.), ss. 199.1 and 125-126.1, now repealed.

2He argues that the transitional provisions of the Abolition of Early Parole Act (AEPA), which deprive him of APR, violate his rights.

3In addition, Mr. Lapple seeks Habeas Corpus with Certiorari in aid to review the decisions of the Correctional Service of Canada and the Parole Board.

Background

4The Applicant was arrested and charged in 2009 with importing cocaine, conspiracy to import and possession for the purpose of trafficking cocaine. The charges arose after authorities discovered 43 kilograms of cocaine in a shipping container at Halifax. He was convicted of all three charges on February 20, 2013 and sentenced that day. He is currently serving a global sentence of 12 years for which he was given 7.5 years credit for pre-trial detention.

5The AEPA, which abolished APR for most offenders in Canada, came into force on March 28, 2011, almost two years before Mr. Lapple was convicted and sentenced.

6He was denied both day parole and full parole after a hearing before the Parole Board on February 28, 2014. He has appealed that decision to the Appeal Division of the Board. That appeal is currently pending. He has also appealed his conviction and sentence to the Ontario Court of Appeal. That appeal is awaiting argument and disposition.

7Mr. Lapple argues that he is entitled to utilize the more favourable (to him) APR process, rather than the normal process which involves a more onerous test for him. He contends that it is the date on which he committed his offences that establishes the review process that should be applied to him.

8For reasons that follow, his applications are both dismissed.

Analysis

9A 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 the lawfulness of the detention.

10I find that this court should decline to exercise its jurisdiction to the extent that Mr. Lapple seeks review of the decisions of the Correctional Service of Canada and the Parole Board. Provincial Superior Courts should decline to exercise their Habeas Corpus jurisdiction to review parole decisions because the National Parole Board and its Appeal Division constitute a complete, expert and comprehensive procedure for their review. See R. v. Graham 2011 ONCA 138 at para. 10. The Respondent argues and I find that, to the extent that Mr. Lapple seeks to challenge his conviction or sentence, his remedy lies with the Court of Appeal by way of statutory appeal. Habeas Corpus cannot generally be used to challenge the legality or merits of a conviction or the resulting sentence.

11For the same reasons issued this day in Frost v. Canada (Attorney General) ONSC 5666, I find the repeal of APR did not violate Mr. Lapple’s Charter rights. He has suffered no deprivation of liberty beyond that which results from his conviction. His current detention is lawful. Denial of parole in the circumstances of his case is not punishment. Any impingement on his liberty interests is in accordance with the principles of fundamental justice and his rights are accordingly not engaged by the abolition of APR.

12The Supreme Court of Canada emphasized in R. v. Rodgers (2006) 2006 SCC 15, 1 S.C.R. 554 at para. 59 and 63 that punishment does not encompass every potential consequence of being convicted of a criminal offence, nor does it include every measure that might have effects in common with punishment. Parole, in and of itself, is not punishment.

13The Supreme Court of Canada in Canada v. Whaling (2014) 2014 SCC 20, 1 S.C.R. 392 confirms the basic distinction between sentencing and parole. Key to that court’s decision was the determination 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 (para. 58). In Whaling it was the retrospective frustration of an expectation of liberty that constituted punishment. Mr. Lapple has not established on this application that he had, at the time he committed his offences, a settled expectation of liberty based on the parole regime then in place, or that APR’s repeal amounts to a retrospective frustration of that expectation.

14My reasons of today on the abolition of accelerated parole review (APR) in Frost v. Canada (Attorney General), supra, apply as well to Mr. Lapple’s case.

15The privilege of APR for offenders like Raymond Lapple sentenced after March 2011, does not engage their liberty interests. Even if it did, I hold that to be consistent with principles of fundamental justice. Raymond Lapple has no right to benefit from a repealed statutory scheme. Fundamental justice does not protect an offender’s expectations about parole eligibility or guarantee him or her the right to the parole regime as it stood at the time of the commission of the offence or at the time of conviction. See Cunningham v. Canada 1993 138 (SCC), 1993 S.C.J. No. 46.

16For these reasons, the applications are both dismissed.

R. MacKINNON J.

Released: September 29, 2014