R. v. Dell, 2015 ONSC 1570

COURT FILE NO.: 14-13181

DATE: 2015/05/05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

CHERRYLLE DELL

Applicant

Peter A. Barnes, for the Respondent

Howard L. Krongold and Chelsea Moore, for the Applicant

HEARD: March 5, 2015

Ruling on constitutional validity of

S. 745. 61 of the criminal code Applied Retrospectivly

maranger j.

INTRODUCTION:

[1] On December 29, 1995 Cherrylle Dell committed the crime of first degree murder against her husband, Scott Dell. Justice James Chadwick, sitting alone, convicted her on February 2, 2001.

[2] Following the conviction, the mandatory sentence of life imprisonment without eligibility for parole for 25 years was imposed. She has been in custody for that offence since December 28, 1997.

[3] On June 24, 2013, the applicant submitted a request for a reduction in the number of years of her parole ineligibility pursuant to s. 745.61 of the Criminal Code RSC, 1985 C-46; the application is commonly known as a “faint hope” clause application.

[4] On December 29, 1995 the “faint hope” provisions contained in s. 745 of the Code provided the following:

745. (1) where a person served at least 15 years of his sentence

(a) in the case of a person who has been convicted of high treason or first-degree murder, or

(b) in the case of a person convicted of second-degree murder who has been sentenced to imprisonment for life without eligibility for parole until he has served more than 15 years of his sentence,

(2) on receipt of an application under subsection (1), the Chief Justice shall designate a judge of the Superior Court of criminal jurisdiction to empanel a jury to hear the application and determine whether the applicant’s number of years of imprisonment without eligibility for parole ought to be reduced having regard to the character of the applicant, his conduct while serving his sentence, the nature of the offence for which he was convicted and such other matters as a judge deems relevant in the circumstances and the determination shall be made by not less than two thirds of the jury.

[5] In 1997, s. 745 of the Code was amended, introducing a two-stage process whereby an initial judicial pre-screening or “threshold hearing” would be held to determine whether there was a “reasonable prospect” that the application would succeed before a jury. Furthermore, the jury’s final determination had to be unanimous, in lieu of the prior requirement of a two thirds majority. The 1997 amendments also contained a transitional provision which made the two-stage process applicable to all applications commenced after January 9, 1997.

[6] In 2011, s. 745 was once again amended. The judicial pre-screening standard was changed from allowing cases with a “reasonable prospect” of success to go to a jury to the more stringent standard of allowing only cases where there was a “substantial likelihood that the application will succeed” to go to a jury.

[7] Pursuant to s. 745.61, the initial judicial screening is performed by a judge alone and is decided exclusively upon the basis of written materials. The screening takes into account the same factors that a jury would have to consider in determining the ultimate issue of whether parole ineligibility should be reduced. The result of a judicial screening is appealable; while a jury’s decision is final.

[8] The applicant challenges the constitutionality of the retrospective application of the 1997 and 2011 legislative amendments to s. 745.61, specifically as they relate to the imposition of judicial pre-screening. The position of the applicant is that the retrospective application of the amendments violates her rights under s. 7, s.11 (h) and s. 11(i) of the Canadian Charter of Rights and Freedoms, s. 7. Part 1 of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (U.K.), 1982, c 11. Those sections stipulate the following:

s.7 - Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

s. 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; and

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time sentencing, to the benefit of the lesser punishment.

[9] The argument stated succinctly is that Cherrylle Dell committed first degree murder on December 29, 1995, and, at that time the law provided that she had the automatic right to have a jury decide if she was eligible for early parole after serving 15 years of her life sentence. In the time between the commission of the offence and the deciding of her application, the law changed to require a two-stage process to determine eligibility for early parole. It is submitted that this change of opportunity constitutes a retroactive increase in punishment and thus, is a breach of the applicant’s s.7, s.11(h) and s.11(i) Charter rights.

Overview and the R v. Jenkins Ruling:

[10] In R. v. Jenkins 2014 ONSC 3223, 310 C.C.C. (3d) 248 [Jenkins], Justice Renee Pomerance authored a very thoughtful and comprehensive decision on the issue of the constitutionality of s .745.61. The question before Pomerance J. was whether the change in the applicable standard employed by a judge conducting the judicial screening from a “reasonable prospect of success” in place at the time Mr. Jenkins committed the index offence, to the amended test of “having a substantial likelihood of success”, violated the applicant’s rights under section 11(h) of the Charter.

[11] Rather than revisiting ground so richly covered, a summary of some of the key findings in Jenkins is appropriate in this case. The Jenkins decision examined s. 745.61 “within its historical, legislative and procedural context” (Jenkins at para. 6). It also provided an analysis of the definition of punishment taken from recent Supreme Court of Canada decisions (See: R. v. Rodgers, 2006 SCC 15, [2006] 1S.C.R. 554 [Rodgers] and AG of Canada v. Whaling, 2014 SCC 20, 372 D.L.R. (4th) 58 [Whaling]).

[12] Crown counsel before Pomerance J. and before me argued that the impact of the s. 745.61 “faint hope” provisions on parole eligibility are administrative in nature, having nothing to do with punishment; consequently, s.11(h) is inapplicable.

This assertion made the definition of punishment central to the question in Jenkins as it is central to the question before me.

Ultimately,

[13] Pomerance J. ruled at para. 5:

I find that the amendment to section 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 the sentence was imposed. The change is of a procedural character and does not affect substantial rights. The amendment does not violate section 11(h). Nor does it violate section 7 of the Charter, as any impact on liberty is in accordance with the principles of fundamental justice.

[14] The fundamental basis for arriving at this decision is found at paragraphs 100 to 103 of Jenkins:

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.

In this regard, the case of 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 offender’s 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.

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. Chaudhary (sic) 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.).

The result in Chaudhary (sic) 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.

[15] At para. 99 of Jenkins, Pomerance J. commented in general terms on the introduction of judicial screening and described it as more significant than changing the standard used by the judge performing the judicial screening: the fact that judicial screening already existed was an important consideration.

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 offense, and the time that he was convicted of it. The applicant has no legitimate basis on which the claim unfettered access to a jury.

[16] And so it seems that, while a similar question was before my colleague, it certainly was not the same question. The applicant in this case went from facing no judicial screening and having the success of her application decided by a two-thirds majority jury, to having her application screened on a “substantial likelihood that the application will succeed” threshold, prior to putting the ultimate question to a jury, who must be unanimous in their decision. Nonetheless, the Jenkins decision offers a wealth of general propositions and analysis of relevant Supreme Court of Canada jurisprudence that is of great assistance in reducing the weight and length of this ruling. I adopt as part of my reasons the following general propositions and analysis taken from Jenkins:

• The creation of the faint hope provisions stemmed from the recognition that the 25-year period of parole ineligibility for first degree murder convictions could be seen as unduly harsh. The faint hope clause was meant to temper this fact. It brought Canada in line with other jurisdictions, which tended to recognize parole eligibility at the 15-year mark (Jenkins at para. 14).

• Judicial screening was introduced in 1997 as a broader package of amendments. Minister of Justice Alan Rock explained “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.” (See: House of Commons Debates, 35th Parl., 2nd Sess., No. 62 (14 June 1996) at 3856; and Jenkins at para. 20)

• Regardless of how one interprets the new standard for judicial screening introduced in 2011, it is more exacting than the old test and requires a more probing assessment of merit by the screening judge (Jenkins at para. 31).

• The jury in determining the faint hope clause application is fundamentally deciding on whether clemency is warranted. They are engaged in determining whether or not they should exercise an act of mercy rather than the application of a law (Jenkins at para. 33).

• The unusually broad discretion conferred on the jury suggests that they are structurally a conduit of the executive power of mercy that has been delegated to the community (Jenkins at para. 36).

• The judicial act of screening “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” (Jenkins at para. 47).

• The definition of punishment in Rodgers involves a two-part test where “a consequence is punishment if it forms part of the arsenal of sanctions, and is in furtherance of the purpose and principles of sentencing. This definition was expanded in Whaling to include certain conditions of a sentence such as changes to parole eligibility (Jenkins at paras. 52-60).

• On the current state of the law, 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.

The key question identified in Whaling as to whether the change of conditions constituted an increase in punishment was to ask whether the change retrospectively thwarted an offender’s settled expectations of liberty (Jenkins at paras. 57-61).

Do the faint hope provisions concern punishment? If so which analytical framework applies Rodgers or Whaling?

[17] The applicant has submitted that Pomerance J., in Jenkins, while correctly concluding that the changes to judicial screening in faint hope clause applications modify the sentence, mistakenly applied the more stringent analytical framework from Whaling. The argument is that, once a finding was made that the retrospective amendment concerned punishment and sentencing, the test in Rodgers should have been applied which indicates: “even marginal increases in the likelihood of additional incarceration easily meet the test for a breach”. (Whaling at para. 52).

[18] The finding in the Jenkins decision: namely, that the faint hope regime concerned punishment and was part of the original sentence using the Rodgers test, is the only aspect of Pomerance J.’s analysis that I do not adopt.

[19] It seems to me that because the faint hope provisions create the possibility to apply for, but not the right to apply for, early parole, there is a need to differentiate between parole ineligibility as part of a sentence (i.e. for first degree murder or second degree murder) versus the opportunity to apply for parole eligibility as a condition of one’s sentence (i.e. having the opportunity to apply to reduce one’s parole ineligibility). The faint hope regime does not squarely fit into the definition of punishment or sentence described in Rodgers or Whaling.

[20] I would suggest that the faint hope regime while part of the original sentence for murder, is in some respects a hybrid, the regime and the opportunity to engage a proceeding to reduce parole ineligibility can arguably constitute a part of the “arsenal of sanctions” used for the purpose of sentencing referenced in Rodgers. However, it can be just as convincingly characterized as an issue of parole eligibility as described in Whaling, failing to trigger the Rodgers test.

[21] Whaling, for all intents and purposes, expanded upon the definition of punishment set out in Rodgers. As explained by the Court of Appeal in the recent decision of R. v. R.S., 2015 ONCA 291, at paras. 29 to 30:

In Whaling, the Supreme Court did not limit punishment under s. 11(h) to state actions that thwart a “settled expectation of liberty”. In Wagner J.’s words, set out above, this was “the dominant consideration”. But it is also clear Whaling that the court thought that there were considerations. At para. 74, Wagner J. wrote:

[E]very retrospective change must be analyzed in detail before conclusions can be drawn as to its possible punitive effect. The greater the impact on the offender’s settled expectation of liberty, or the greater the likelihood of additional incarceration, the more likely it is that a given retrospective change will violate s. 11(h) [Emphasis added.]

On the plain words of Whaling, “the greater the likelihood of additional incarceration,” the more likely a retrospective change will constitute punishment…

[22] I find that this expanded definition of punishment appropriately excludes the faint hope regime. When an accused has been sentenced to life without parole eligibility for 25 years, the faint hope regime cannot be said to interfere with that offender’s “settled expectation of liberty”; nor can it be said that the regime leads to their additional incarceration. It seems to me that a modification to the process used to determine an offender’s chance at early parole is akin to a change in the condition of a sentence rather than a change to the ultimate sentence. Thus, Whaling is the appropriate framework to determine the Charter question.

[23] I note that paras. 48 to 53 of Whaling leave little doubt as to the appropriate analytical framework to be used:

(b) Inapplicability of the Rodgers test to retrospective changes to parole eligibility

In my view, the case at bar once again pushes the limits of the “punishment” concept, requiring us to revisit the principles that define the scope of s. 11(h). Whereas in Wigglesworth the court established that the non-criminal proceedings may engage s.11(h) if they result in true penal consequences, and in Rodgers it articulated a test for determining whether a given consequence or sanction constitutes punishment, the question in the instant case eludes both tests.

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 eligibility, which modify the manner in which an existing sanction is carried out, constitute punishment. The alleged punishment is neither a second proceeding nor a “sanction” in the sense contemplated in Rodgers. Rather, the offender’s expectations about the original punishment or sanction have been frustrated and this is said to constitute new punishment.

The following makes clear that the two-part Rodgers test cannot apply to determine whether retrospective changes to parole eligibility constitute punishment. In the first branch of the Rodgers test, “punishment” is defined by referring to the traditional forms of punishment provided for in the Criminal Code, in which “[t]he words ‘sentence’ and ‘sanction’ are … used interchangeably” (para. 62). The function of this branch of the test is to enable courts to determine whether other types of sanctions -- such as a DNA order or a driving prohibition -- share the characteristics of punitive sanctions and thus constitute “punishment”. Since “a grant of parole represents a change in the conditions under which a judicial sentence must be served rather than a reduction of the judicial sentence itself” … changes to the parole system do not generally form part of the “arsenal sanctions” contemplated in Rodgers.

On the other hand, a retrospective change to parole eligibility may have the effect of extending an offenders’ term of incarceration. Incarceration is “the most severe deprivation of liberty known to our law” ... and the most obvious example of punishment in the “arsenal of sanctions” available under the Criminal Code. It and heavy fines are the benchmark sanctions against which other, less severe sanctions are assessed under the Rodgers test. The incarceration constitutes “punishment” is a core underlying assumption of the Rodgers test.

In short, when applied in this context, the Rodgers test is overly formalistic, as the “arsenal of sanctions” test would exclude most changes to parole eligibility, whereas even marginal increases in the likelihood of additional cars are incarceration easily meet the test. The problem is that the Rodgers test does not assist in identifying situations in which, from a functional rather than formalistic perspective, the harshness of punishment has been increased. The Rodgers test was designed for a different purpose, namely to determine whether a discrete sanction -- one that does not modify the original sanction -- has the characteristics of a criminal sanction, and thus constitutes “punishment”.

The second branch of the Rodgers test -- whether the sanction furthers the purpose and principles of sentencing -- is also an awkward fit in the situation. For instance, rehabilitation and reintegration are principles applied in parole administration, but they are also sentencing principles. It would seem that all retrospective changes to parole eligibility could therefore be said to further the purpose and principles of sentencing, though it is clear to me that not all such changes would be punitive.

Were Cherrylle Dell’s section 11(h) 11(i) or section 7 Charter rights violated?

[24] The issue is whether the retrospective change to Ms. Dell’s means of gaining a “chance of parole” can constitute a retrospective increase in punishment and consequently a violation of the Charter.

[25] In Jenkins the change in the standard from “reasonable prospect” to a “substantial likelihood” of success was described as a procedural amendment that was not constitutionally significant. The finding that there was no violation of the applicant’s Charter rights was predicated on a finding that there was no real increase in punishment.

[26] In another decision, R. v. Chaudhary (1990, 1999 14902 (ON SC), 139 C.C.C. (3d) 547, 67 CRR (2d) 107 (Ont. S.C.), which predated both Rodgers and Whaling; C.J.S.C. Lesage dealt with the issue of the constitutionality of the 1997 amendment to the faint hope clause provisions. The challenge was to the new requirement that the jury had to be unanimous in their verdict rather than permitting a finding by a two thirds majority. The applicant’s argument was rejected at para. 11 of Chaudhary, where Lesage C.J.S.C. indicated the following:

This legislation does not change the applicant’s right; that is the right to apply to have her parole ineligibility reduced. It does not lengthen her sentence. It does not increase her period of parole ineligibility. What it does do is simply change the manner in which she is required to establish the right to seek earlier parole. The applicant has not had her right to parole nor even her right to apply for parole changed by the amendments. Her pre-existing right was simply to ask the Court to permit her the right to seek parole. That has not changed.

[27] Chaudhary also held that the amendment did not “significantly change the terms of the possibility of a release” it simply changed “how the determination is arrived at” (Chaudhary at para. 8).

[28] I am persuaded by the logic and analysis in Chaudhary and Jenkins on the ultimate question of whether the amendments to the faint hope process constitute an increase in punishment.

[29] I find that they do not increase punishment nor do they fundamentally alter the nature of the sentence imposed at the time of the conviction, Cherrylle Dell’s settled expectation of when she could apply for parole was not thwarted by the amendments. She can, and indeed has, applied for the opportunity to seek parole after 15 years of incarceration. While the procedure to arrive at that determination has no doubt changed; her right to apply for a chance of early parole remains.

[30] Consequently, the applicant has failed to demonstrate that the amendment violates section 11(h) or 11(i) of the Charter. While the s. 7 argument was raised it was not advanced with any vigour, and in any event, there was no breach demonstrated; the amendment is in accordance with the principles of fundamental justice.

[31] Therefore, the application for a declaration that the retrospective application of s. 745.61 is unconstitutional is dismissed. Cherrylle Dell’s application for reduction in her parole ineligibility will be determined in accordance with s. 745.61 as amended in 2011.

Maranger J.

Released: May 5, 2015

CITATION: R. v. Dell, 2015 ONSC 1570

COURT FILE NO.: 14-13181

DATE: 2015/05/05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

CHERRYLLE DELL

Applicant

REASONS FOR JUDGMENT

Maranger J.

Released: May 5, 2015