Harris et al v. Attorney General of Canada, 2015 ONSC 1079

Court File and Parties

COURT FILE NO.: SCA8932

DATE: 2015-02-18

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Hollie Harris, Alma McLeod & Natalya Reznik, Applicants

- and -

The Attorney General of Canada, Respondent

BEFORE: The Honourable Mr. Justice R.D. Reilly

COUNSEL: Brian A. Callender, Counsel for the Applicants

Michael J. Sims, Counsel for the Respondent

HEARD: January 30, 2015

Corrected decision: The correction was made on February 20, 2015.

The first line of paragraph 16 reads “s. 10(h)”, and this was replaced with “s. 11(h).

As well, the citation referred to “Shain Widdifield” as Counsel for the Respondent

and this was changed to “Michael J. Sims”.

ruling

by the honourable mr. justice r.d. reilly

[1] The three applicants seek a declaration that they are eligible for accelerated parole review (APR) at 1/6 of their respective sentences, in accordance with ss. 119.1 and 125-126.1 (now repealed) of the Corrections and Conditional Release Act, S.C. 1992 c.20 (CCRA). If necessary, they seek an order in the nature of habius corpus with certiorari in aid.

[2] All three applicants are currently serving a Federal sentence in a penitentiary in Kingston, Ontario. All three applicants committed the offences for which they are currently serving sentence prior to March 28, 2011.

[3] The Abolition of Early Parole Act, S.C. 2011 c.11 s.10 (AEPA) came into effect on March 28, 2011, after the commission of the offences for which all three applicants are serving time. They claim that the increased delay in parole eligibility, due to the abolition of APR constitutes punishment within the meaning of s. 11(1) of the Canadian Charter of Rights and Freedoms. The applicants claim that they had a reasonable expectation of APR that crystallized at the time of the commission of the offences for which they were sentenced and for which they are currently serving time in penitentiary. They claim that Correctional Services Canada failed to refer their files for APR in accordance with ss. 119.1 and 125-126.1 of the CCRA, which has now been repealed. They claim that the repeal of the CCRA violates their s. 7 and s. 11(i) Charter rights.

[4] Hollie Harris was sentenced on March 22, 2012 to four years for importing cocaine. Her offence date was March 16, 2009. Under the previous regime she would have been eligible for accelerated parole review on June 16, 2015. Under the present regime, she will not be eligible for day parole until August 15, 2015.

[5] Alma McLeod was sentenced on conspiracy and weapons charges on May 24, 2012. Her offences were committed between June 2006 and July 2007. Under the previous regime she would have been eligible for accelerated parole review on November 18, 2014. Under the current regime, she is not eligible for day parole until April 26, 2015.

[6] The third applicant, Natalya Reznik, was sentenced on the 24th of May 2012 for 10 counts of fraud. Her offences were committed between April 2000 and August of 2007. Natalya Reznik would have been eligible for accelerated parole review under the previous regime on November 10, 2014. She is not eligible for day parole under the current regime until January 20, 2015.

[7] Accelerated parole review came into effect with the Corrections and Conditional Release Act on November 1, 1992. The accelerated parole review (APR) differed from the normal parole process in three ways. First, Correctional Services referred APR eligible cases to the National Parole Board so offenders did not need to apply. Review was generally on paper, instead of a hearing in person.

[8] Secondly, accelerated parole was assessed on a lower presumptive standard (“no reasonable grounds to believe that the offender, if released, is likely to commit an offence involving violence”). Normal parole required that “the offender will not by reoffending present an undue risk to society” and “the release of the offender will contribute to the protection of society by facilitating the reintegration of the offender into society as a law abiding citizen”. If the offender met the lower APR standard (the previous standard), the Board had no discretion but to direct release on parole.

[9] Perhaps of greater relevance to the current applications, as a result of amendments in 1997, the APR process for day parole was triggered earlier than the normal day parole process; after 1/6 of a sentence instead of six months before the full parole eligibility date.

[10] As a result of the Abolition of Early Parole Act, which came into effect on March 28, 2011, these advantages to an offender seeking early parole were eliminated. The applicants plead that the abolition of the accelerated parole review provisions violates their rights guaranteed by s. 11(i) of the Charter, which states that “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment”.

[11] Put quite simply, the three applicants were convicted of offences which occurred prior to the Abolition of the Early Parole Act, but were sentenced after the implementation of the AEPA. The issue before the court is whether the AEPA which struck ss. 119.1 and 125-126.1 of the Corrections and Conditional Release Act, thereby removing the arguable advantages to an inmate of accelerated parole review, constitutes a violation of s. 11(i) of the Charter. Central to this issue, in my view, is whether the right to apply for accelerated parole review constitutes a “punishment” within the meaning of s. 11(i) of the Charter. There has been considerable judicial disagreement on this issue, both in Ontario and elsewhere in Canada. A number of cases are currently on their way to Appellate Review, which Appellate Review will be warmly welcomed by judges across Canada. I need not go into detail in an analysis of the various judgments to which I shall make brief reference. Each of the judgments reflects careful thought on the part of the judges who crafted these judgments.

[12] In Ontario, in the case of Lewis et al v. The Attorney General of Canada, 2014 ONSC 6934 (), Justice Peter Hambly of the Superior Court found that the Abolition of the Early Parole Act was indeed a violation of s. 11(i) and directed that each of the applicants was eligible for accelerated parole review (APR) at 1/6 of their sentence in accordance with s. 119.1 and 125-126.1 of the Corrections and Conditional Release Act (now repealed).

[13] Mr. Justice Tausendfreund of the Superior Court came to the same conclusion in the case of Oraha v. Attorney General of Canada, 2014 ONSC 2813 and directed that the eligibility for parole of the applicant be determined by the APR provisions of the CCRA in effect at the time of the applicant’s conviction. Justice Tausenfreund also directed that his application for APR should be expedited. Justice MacKinnon, of the Superior Court of Ontario came to a contrary decision in two cases, Frost v. Attorney General of Canada, 2014 ONSC 5666 and Lapple v. Attorney General, 2014 ONSC 5670.

[14] Justice MacKinnon’s opinion was shared by Madam Justice Perreault, of the Superior Court of Quebec, in the case of Parent c. Commission Canadienne Des Liberations Conditionelles Et Procureur General Du Canada (Court File Number 500-36-007153-144) and by Justice Edmond of the Court of Queen’s Bench of Manitoba in the case of Nucci v. Canada (A.G.) 2015 MBQB 7, 2015 MBQB7.

[15] I agree with the decisions crafted by Mr. Justice Hambly and Mr. Justice Tausendfreund in Lewis and Oraha, and with respect, I disagree with the decisions crafted by Mr. Justice MacKinnon, Madam Justice Perreault, and Mr. Justice Edmond. I also agree with the decision crafted by Madam Justice MacKenzie of the Court of Appeal for British Columbia in the case of Liang and McCulloch v. Attorney General of Canada, 2014 BCCA 190. I particularly note Madam Justice MacKenzie’s analysis of the Supreme Court decision in Whaling v. Canada (Attorney General), 2014 SCC 20. I have also carefully read the decisions of Madam Justice Holmes in the Supreme Court of British Columbia and Madam Justice Levine in the British Columbia Court of Appeal in the case of Whaling v. Canada (A.G.).

[16] I am mindful that the court in Whaling was particularly concerned with s. 11(h) of the Charter, which was specifically directed to prevent “double punishment” for an offence. I conclude, however, that the concept of “punishment” applies with even greater vigour to s. 11(i) than to s. 11(h). I am also mindful that the decision in Whaling applies specifically to offenders who were sentenced prior to coming into force of the AEPA. That does not detract from my conclusion that the Abolition of Accelerated Parole Review to offenders whose offences were committed prior to the AEPA are entitled to the benefit of s. 11(i) of the Charter.

[17] Mr. Justice Wagner of the Supreme Court of Canada, in the Whaling case, stated at para. 58 in dealing with s. 11(h) of the Charter:

The requirement of a “substantial change in conditions amounting to a further deprivation of liberty” was articulated in the context of s. 7, and I will not import it into that of s. 11(h), the purpose of which is distinct. Retrospective changes to the parole system that engage a liberty interest under s. 7 will not necessarily constitute punishment for the purposes of s. 11(h). … 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”.

[18] At paragraph 60-62, Mr. Justice Wagner continued:

[60] … 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] I reach this conclusion on the basis of many of the reasons cited by the courts below and advanced by the respondents. Although a sentencing judge is not to consider parole eligibility in assessing the fitness of the sentence (citing jurisprudence) the punitive effect of delayed parole eligibility is expressly recognized in the Criminal Code, which empowers a sentencing judge to consider delayed parole eligibility to be part of the sentence in certain circumstances. For example, s. 743.6(1) empowers a court to impose delayed parole eligibility for the purpose of denunciation or of specific or general deterrence. Furthermore, a sentencing judge may increase the parole ineligibility period of an offender convicted of second degree murder (citing jurisprudence). …

In Shropshire, Iacobucci J. noted that the duration of parole ineligibility is the only difference in terms of punishment between first and second degree murder, which “clearly indicates that parole ineligibility is part of the ‘punishment’ and thereby forms an important element of sentencing policy”.

[62] The fact that delayed parole eligibility can be imposed in the sentencing process confirms my view that retrospectively imposing delayed parole eligibility on offenders who have already been sentenced constitutes punishment. Where Parliament imposes through retrospective legislation a consequence that sentencing judges may themselves impose for the purpose of punishment, the s. 11(h) protection against double punishment applies.

[19] Justice Wagner continued at paras. 71-73:

[71] In my view, s. 10(1) (AEPA) had the effect of punishing the respondents again. It retrospectively imposed a delay in day parole eligibility in relation to offences for which they had already been tried and punished. The effect – extended incarceration – was automatic and without regard to individual circumstances.

[72] This situation is one of the “clearest of cases” discussed above. The imposition of a delay in parole eligibility in this case is analogous to the imposition of delayed parole eligibility by a judge under the Criminal Code as part of the sentence. As I mentioned above, Iacobucci J. noted in Shropshire that the imposition of such a delay “clearly indicates that parole ineligibility is part of the ‘punishment’” (para. 23). Imposing this same consequence by means of retrospective legislation triggers the protection against double punishment set out in s. 11(h).

[73] My conclusion is not altered by the fact that the extension of parole ineligibility was imposed by means of legislation in the context of the CCRA, which concerns, inter alia, sentence administration, as opposed to being judicially imposed under the Criminal Code. This formal distinction does not change the basic point that, from a functional perspective, the new period of parole ineligibility thwarted the expectations of liberty of offenders who had already been “tried or punished” for their offences and resulted in harsher penalties than they would have received under the legislation that was in force at the time of their sentencing.

[20] The fact that the Supreme Court in Whaling was focusing on s. 11(h) of the Charter and not on s. 11(i) of the Charter and the fact that the legislative changes occurred after sentencing does not alter my view of the infringement of s. 11(i) of the Charter by the AEPA, which came into effect on March 28, 2011, prior to the sentencing of all three of these applicants and delayed their entitlement to accelerated parole review, which was in effect at the time they committed their offences.

[21] I simply return to a common sense reading of s. 11(i) of the Charter, which states:

If found guilty of the offence and the punishment for the offence has been varied between the time of commission and the time of sentencing to the benefit of the lesser punishment.

[22] Put quite simply, between the time of commission of their offences and the time of sentencing, the “punishment” for their offences was changed. They were denied and are being denied the advantages of accelerated parole review, which advantages were removed by the Abolition of Early Parole Act of March 28, 2011. I conclude from the jurisprudence that entitlement to accelerated parole review (or disentitlement in this case) is part of the “punishment” to which they have been subject. These applications are therefore allowed. There will be an order for a declaration that the applicants are eligible for accelerated parole review at 1/6 of their sentence, in accordance with s. 119.1 and s. 125-126.1 of the Corrections and Conditional Release Act, S.C. 1992 c.30 (CCRA), prior to the repeal of those sections.

[23] I do not wish this ruling to be seen of any criticism of the AEPA or the efforts of the Parliament of Canada to make meaningful the provisions of the Corrections and Conditional Release Act. I am simply ruling that the removal of the accelerated parole review provisions is in violation of s. 11(i) of the Charter. The amendments to the CCRA may well have a commendable purpose, based on considerable research, but they must have only prospective effect if in violation of s. 11(i) of the Charter.

[24] I would be remiss if I did not thank counsel for their considerable assistance on this challenging issue and commend them for their preparation and advocacy.

[25] On the original hearing of these applications, I ruled in favour of the applicants on January 30, 2015. These are my additional reasons for that ruling.

R.D. Reilly J.

Released: February 18, 2015