ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JUSTIN BERNARD
Applicant
– and –
ATTORNEY GENERAL OF CANADA
Respondent
B. Callender, for the Applicant
E. Kikuchi, for the Crown
HEARD: August 17, 2015 at Kingston
tranmer, J.
DECISION ON APPLICATION TO DECLARE SENTENCES
ARE ELIGIBLE FOR ACCELERATED PAROLE REVIEW
THE FACTS
1The timeline for the Applicant’s offences and sentences is as follows:
Count
Date Offence Occurred
Offence
Sentence Imposed on July 5, 2012
2
March 8, 2011
Trafficking – meth
8 yrs, concurrent
7
March 15, 2011
Possession of proceeds
4 yrs, concurrent
Abolition of Early Parole Act, S.C. 2011, c. 11 March 28, 2011
9
April 4, 6, 2011
Trafficking – meth
8 yrs, concurrent
10
April 8, 2011
Proceeds
4 yrs, concurrent
12
April 10, 2011
Trafficking – meth
12 years, concurrent
15
April 13, 2011
Possession of proceeds
1 yr, concurrent
16
April 13, 2011
Possession for the purpose trafficking – meth
12 years
THE LAW
2The Applicant argues that he is entitled to the benefit of accelerated parole review (APR) on the basis of Lewis v. Canada (Attorney General), 2014 ONSC 6394; appeal dismissed 2015 ONCA 379, and Lalonde v. Canada (Attorney General), 2015 ONSC 6937.
3The facts in Lalonde are distinguishable in that he was convicted and sentenced for the single offence of conspiracy to traffic (x2) where the conspiracy was made up of a series of events that occurred prior to March 28, 2011 and the majority after that date.
4In Lewis, nine of the applicants had committed all of their offences prior to March 28, 2011, their applications for the benefit of APR were granted and that decision was upheld on appeal.
5Craddock, the other applicant in Lewis, committed her offences both before and after the APR repeal date. Her case is factually the same as that of Mr. Bernard. The Court of Appeal said,
28 … The case of Ms. Craddock illustrates that complexities may arise, but does not undermine the analysis in Liang. The cases of individuals sentenced for some offences committed before the repeal of the APR regime and other offences committed after its repeal will have to be considered on their own facts and in light of the form of the sentence or sentences imposed. The primary sentencing documents relating to Ms. Craddock are not in the record, and since her case is moot, it is not necessary to deal with that complexity in this decision.
6In Liang v. Canada (Attorney General), 2014 BCCA 190, the court ruled that where persons committed offences prior to the repeal date, although sentenced after, the provisions of the APR were available to them.
ANALYSIS
7The Applicant was sentenced for 2 offences that were committed prior to March 28, 2011. On its face, the law affords him the benefit of APR for those two offences.
8He was also sentenced for 5 offences committed after the repeal date, 2 of which sentences exceeded the time of imprisonment imposed on the two “prior” offences. On its face, he is not entitled to APR for these offences.
9The Applicant argues that he is entitled to APR for all 7 offences.
10The Crown submits that I should find no 11(i) breach in these circumstances as it would be contrary to the purpose of 11(i) to bring the later 5 offences into the APR scheme.
11The Applicant was sentenced to 7 distinct sentences for 7 distinct offences. As I have said, this is unlike Lalonde.
12In theory, on the authority of Liang and Lewis, the Applicant is entitled to the benefit of APR for the 2 offences that occurred prior to March 28, 2011. However, I find that all 7 sentences cannot and should not be lumped together as submitted by the Applicant. He is not entitled to APR for the later occurring 5 offences.
13The scenario in this application was contemplated by the Court of Appeal in Lewis, “complexities may arise, but does not undermine the analysis in Liang.” I have considered the Applicant’s case on its own facts and in light of the 7 distinct sentences imposed on him.
14Counsel did not put detailed calculations in evidence. But, it appears that applying the 1/6 APR regime to the 8 year, March 8, 2011 sentence, the reality is that if APR was available to the Applicant on this offence, he would remain subject to incarceration on the 2, 12 year sentences under the 1/3 regime.
15Therefore, the repeal of APR does not cause him to suffer the “effect of appreciably increasing the amount of time such offenders would be incarcerated in comparison to what they would have expected under the regime in place at the time they committed their offences. Such an increase in incarceration is a variation in punishment within the meaning of s. 11(i).” (Lewis, para. 24).
16Rather, it is the commission of the April offences that causes the Applicant to remain in custody longer than if he had only committed the two March offences. It is not the repeal of the APR that has that effect, as in Lewis.
17I find that, on the facts before me, the Applicant is not entitled to the benefit from APR for all of his offences simply because 2 of his 7 offences occurred before APR was appealed. To hold otherwise, goes beyond the purpose of s. 11(i) and would include offences that s. 11(i) never intended to protect.
18For these reasons, on these particular facts, the application is dismissed.
Honourable Justice Gary W. Tranmer
Released: December 7, 2015
COURT FILE NO.: CV-15-451-00
DATE: 2015 Dec 07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JUSTIN BERNARD
Applicant
– and –
ATTORNEY GENERAL OF CANADA
Respondent
DECISION ON APPLICATION TO DECLARE SENTENCES ARE ELIGIBLE FOR ACCELERATED PAROLE REVIEW
Tranmer, J.
Released: December 7, 2015