Court File and Parties

CITATION: Witen v. Attorney General of Canada, 2015 ONSC 2408

BRACEBRIDGE COURT FILE NO.: CR-15-0006

DATE: 20150413

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Michael Witen, Applicant

AND:

Attorney General of Canada, Respondent

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL: R. Posner, Counsel for the Applicant

M.J. Sims, Counsel for the Respondent

HEARD: March 18, 2015

ENDORSEMENT

[1] The applicant, Michael Witen, seeks a declaration that he is eligible for accelerated parole review (APR) at one-sixth of his sentence, commencing April 6, 2015. The applicant is a first-time offender, who is serving a sentence for two counts of fraud over $5,000.

[2] The discreet issue to be addressed in this application is the effect on the applicant of Parliament’s abolishing the APR process, which was previously available to certain offenders.

[3] The following dates which apply to the applicant will provide context for the discussion that follows.

June 2007 Mr. Witen is charged with two Criminal Code offences of fraud over $5,000.

March 28, 2011 Parliament abolishes accelerated parole review (APR) (Bill C-59).

June 27, 2012 After conviction, Mr. Witen is sentenced to three years, but the matter is appealed and Mr. Witen is released on bail.

October 9, 2014 Mr. Witen’s appeal is dismissed and he re-enters custody to complete his three-year sentence.

April 6, 2015 Mr. Witen will have completed one-sixth of his three-year sentence. But for the abolition of APR, he would have been eligible for accelerated day parole on this date. His eligibility for a normal day parole hearing begins on this date.

[4] The focus of this appeal can be summarized as follows: is Mr. Witen entitled to the accelerated parole review and did his right crystalize at the time he committed the offences in 2007, or is he disentitled to accelerated parole review because his rights crystallized at his sentencing date in 2012, after the repeal of accelerated parole review by Bill C-59, March 28, 2011?

[5] It is not disputed that Mr. Witen falls within the category of offenders who would otherwise have been entitled to accelerated parole review. The benefits of APR were summarized in the factum of the Attorney General of Canada at para. 7:

APR differed from the normal parole process in three main ways:

• Automatic and simplified procedure: the Correctional Service of Canada (the “Service” or “CSC”) referred APR-eligible cases to the Board automatically; review was generally on paper instead of a hearing in person;

• Lower and presumptive standard for release without discretion: the Board had no discretion but to direct release on parole if it found that the offender was unlikely to commit an offence involving violence, as opposed to the normal parole test which grants the Board discretion and permits the Board to consider the offender’s risk of re-offending generally;

• Earlier day parole eligibility: as noted, starting in 1997 the APR process for day parole was triggered earlier than the normal day parole process.

[6] Mr. Witen’s counsel acknowledges that Mr. Witen is now eligible to seek day parole under the normal parole test because it is now six months before one-third of his sentence has expired. But counsel submit that this process requires a hearing, is not automatic, takes more time administratively before a hearing is conducted, and at the hearing, a different and higher standard for release is consistent by the Board.

Legislative Review

[7] The issue before the court has been much litigated in recent years, and there are conflicting decisions from the Superior Court of Justice of Ontario, as well as Superior Courts in other provinces. Counsel submit that a number of Ontario decisions have been appealed to the Ontario Court of Appeal, an appeal hearing has taken place, and the matter is currently under reserve. It is unknown how long the matter will be reserved, but I am satisfied that Mr. Witen is entitled to a prompt decision on the issue before the court, given his potential eligibility date.

[8] One of the Ontario Superior Court of Justice cases reviewing this issue was Harris et al v. Attorney General of Canada, 2015 ONSC 1079. Reilly J. provided a helpful legislative review on the facts before him, this review has equal application to this case. As he provided at paras. 7 – 10:

[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 be 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”.

[9] After considering the legislative provisions, as well as some conflicting decisions, Reilly J. found that this legislative change amounted to punishment and offended the applicant’s section 11(i) Charter rights. He concluded:

There will be an order for a declaration that the applicants are eligible for accelerated parole review at one-sixth 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.

[10] Similar decisions were arrived at in earlier Ontario Superior Court cases. See: Louis et al v. The Attorney General of Canada, 2014 ONSC 6934, and Oraha v. Attorney of Canada, 2014 ONSC 2813. But, J.R. MacKinnon J. came to contrary decisions in Frost v. Attorney General of Canada, 2014 ONSC 5666, and Lapple v. Canada (Attorney General), 2014 ONSC 5670. In Frost, J.R. MacKinnon J., concluded at para. 15:

While changes to the conditions of a sentence already issued can constitute punishment, prospective changes to parole administration where a sentence has not be 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.

[11] It is this group of Ontario cases, Louis, Oraha, Frost, and Lapple, that are under reserve after argument before the Ontario Court of Appeal.

[12] Many of the cases above noted refer to the Supreme Court of Canada’s decision, Canada (A.G.) v. Whaling, 2014 SCC 20. The British Columbia Court of Appeal applied the principles in Whaling to facts similar to the application at bar, in Liang v. Canada (Attorney General), 2014 BCCA 190, and concluded that offenders who committed their offences prior to March 28, 2011 were entitled to the provisions of the Early Parole Act.

[13] In a recent decision from the Manitoba Queen’s Bench, Nucci v. Canada (Attorney General), 2015 MBQB 7, 2015 M.J. No. 38, Edmond J. came to a contrary decision after analyzing Liang. He determined that the British Columbia Court of Appeal misapplied the Whaling principles to situations such as the case at bar.

The Whaling Principles

[14] In Whaling, the facts were somewhat different. The offenders were eligible for accelerated parole review under the system in place at the time of their sentencing. The abolition of the Early Parole Act then came into force, potentially removing their opportunity for accelerated day parole. The legislation was challenged and found to be unconstitutional in those circumstances. The Court found that that legislative change amounted to punishment. As Wagner J. stated for the Court at para. 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.

[15] In adopting the reasoning in one of its earlier decisions, Wagner J. stated for the Court at para. 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.

The Court also noted at para. 59:

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.

[16] Except in limited circumstances, parole eligibility is not a factor to be taken into consideration by the sentencing judge: Whaling at para. 61. Those limited circumstances did not apply to Mr. Witen when he was sentenced.

Conclusion

[17] I am satisfied that Mr. Witen’s application ought to be dismissed. I do so for the following reasons:

• The parole eligibility system in place at the date of his sentencing had already eliminated accelerated parole review. Parliament’s abolition of APR prior to Mr. Witen’s sentencing did not have a prospective effect which amounted to punishment. Rather, it constituted Parliament’s intention to change parole administration, rather than sentencing.

• Parliament’s legislative change eliminating APR, had a more limited impact on Mr. Witen because he has available to him on the same date, the ability to request a hearing for day parole under the provisions of the CCRA.

• Mr. Witen’s ability to obtain day parole has not been eliminated, but it is not automatic. It has been replaced by an administrative procedure which requires a hearing before the Parole Board. The Board has discretion as to whether or not to grant day parole. Therefore, the abolition of the APR by Parliament, has a more limited impact on Mr. Witen. Therefore, I find that Charter protection is not engaged.

[18] Mr. Witen’s application is dismissed.

MULLIGAN J.

Date: April 13, 2015