CITATION: Heywood v. Canada (Attorney General), 2016 ONSC 1516
COURT FILE NO.: CR-15-580-MO
DATE: 2016 Mar 04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AKIL HEYWOOD
Applicant
– and –
ATTORNEY GENERAL OF CANADA
Respondent
Brian Callender, for the Applicant
Tara DiBenedetto, for the Crown
HEARD: March 2, 2016 at Kingston
MacLeod-Beliveau, J.
DECISION ON S. 11 (i) OF THE CHARTER TO DECLARE OFFENDERS
ELIGIBLE OR NOT FOR ACCELERATED PAROLE REVIEW
[1] In his November 17, 2015 Application, Mr. Heywood questions the constitutional validity of section 10 (1) of the Abolition of Early Parole Act, S.C. 2011, c. 11. (AEPA), in force March 28, 2011 to the extent that, notwithstanding section 11(i) of the Charter, it purports to make AEPA apply retrospectively to offenders serving sentences for offences committed prior to the date AEPA came into force. Mr. Heywood seeks an order declaring that he is eligible for parole under the accelerated parole review (APR) provisions of the Corrections and Conditional Release Act, S.C.1992, c 20 (CCRA) in effect before March 28, 2011.
THE ISSUE
[2] Does the denial of eligibility for APR to Mr. Heywood infringe s. 11 (i) of the Charter?
POSITION OF THE PARTIES
[3] The Applicant’s position is that because Mr. Heywood committed one of his offences prior to the AEPA being in force, it qualifies him for APR under the former legislative parole regime. Mr. Heywood does not challenge the repeal of APR, but rather he argues that because one of his offences was committed prior to the repeal of APR, the repeal of APR applies retrospectively to him and thus violates his rights under s. 11 (i) of the Charter.
[4] The Respondent’s position is that the Applicant is not eligible for APR at one sixth of his sentences as provided for in former APR process, as he was sentenced for offences committed after the repeal of the APR regime. It is the Respondent’s position that granting Mr. Heywood eligibility to apply for APR for five offences committed after its repeal, goes beyond the purpose of s. 11 (i) of the Charter and includes offences that s. 11 (i) never meant to protect.
BACKGROUND FACTS
The Applicant, Mr. Akil Heywood, is a first time federal offender at minimum security Beaver Creek Institution. His offence dates and his sentences are as follows:
Offence Date
Offence
Sentence Imposed March 28, 2013
December 7, 2010
Importation – cocaine
4.5 years, concurrent
Abolition of Early Parole Act, S.C. 2011, c. 11, March 28, 2011
October 7, 2011
Possession for the purpose of trafficking – cocaine
4.5 years, concurrent
March 9, 2012
Possession for the purpose of trafficking – cocaine
4.5 years, concurrent
October 7, 2011
Breach of recognizance
2 years, concurrent
March 10, 2012
March 10, 2012
Breach of recognizance
Possession of stolen property while on bail
2 years, concurrent
2 years, concurrent
[5] Sentence managers in the Correctional Service of Canada (CSC) determined that offenders such as Mr. Heywood were not eligible for APR because additional offences were committed after the repeal of APR on March 28, 2011. Where offenders receive one sentence for numerous offences or multiple sentences for numerous offences which were committed both before and after APR, sentence managers have determined that these offenders are not eligible for APR because APR parole eligibility can only be applied to offences committed before March 28, 2011. As a result, sentence managers have determined that offenders who committed offences both before and after the repeal of APR were not eligible for APR.
[6] Mr. Heywood’s offence dates straddle the repeal date of the AEPA. He appears to otherwise qualify for APR but for his five offences committed after the repeal date. As of December 13, 2015, CSC has identified eighty-nine offenders in Canada who potentially could have met the general criteria for APR, and appear to have committed offences before and after March 28, 2011. Thirty-one of these offenders are located in Ontario.
[7] These offenders’ files have not been reviewed to determine, however, if they meet other criteria for APR. It would have to be determined if the offender was serving a sentence for a first federal offence. This determination could be complicated by the fact that between the date of the commission of an offence and a later conviction and sentence to penitentiary for that offence, the offender may have received several provincial length sentences. If those provincial length sentences were merged causing the offender to be subject to federal jurisdiction, it may be unclear whether the offender would still be eligible for APR.
[8] The files have not been reviewed to determine if the sentence was for an APR eligible offence, whether the offender committed an offence after conditional release, whether the offender had transferred from a foreign country under the International Transfer of Offenders Act, whether the offender’s statutory release date had passed, or if the offender was on day parole, whether or not the Parole Board had granted full parole with a full parole eligibility date in the future. Each file would have to be reviewed individually to determine the actual number of offenders in this situation.
[9] If Mr. Heywood was eligible for APR, the date for consideration would have been December 27, 2013. Mr. Heywood’s eligibility for day parole under the current CCRA was March 27, 2014 and his eligibility for full parole was determined to be September 27, 2014. Mr. Heywood’s statutory release date is March 28, 2016.
[10] APR allowed offenders to be released on day parole after serving one-sixth of their sentences. That differs from the current parole regime, under which offenders must wait until six months before they have served one-third of their sentence. The APR process was also simpler, and conducted on paper submissions without a hearing. The test for release on APR was “no reasonable grounds to believe that the offender, if released, is likely to commit an offence involving violence before the expiration of the offender’s sentence.” This APR test is considered less onerous than the current test. The APR process for day parole was also triggered at an earlier date than in the current parole process.
[11] On October 21, 2014, the Parole Board of Canada considered Mr. Heywood’s request for day and full parole. On October 31, 2014, he was denied his request for day and full parole on the basis that Mr. Heywood’s released presented an undue risk to society. On May 21, 2015, the Appeal Division of the Parole Board of Canada affirmed the Parole Board of Canada’s decision, and notified Mr. Heywood on May 27, 2015. He remains in custody pending his statutory release date of March 28, 2016.
THE LAW
[12] Sections 3 and 5 of the AEPA repealed the APR provisions of CCRA. Section 11 (i) of the Charter provides that a person charged with an offence has the right, “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.”
[13] In Lewis v. Canada (Attorney General), 2014 ONSC 6394; appeal dismissed 2015 ONCA 379, the Court of Appeal held that the denial of APR violated s. 11(i) rights of offenders who committed offences before the repeal of APR, and were sentenced after its repeal. The reason was that the repeal of APR had the effect of increasing the amount of time the offender would be incarcerated compared to the regime in force at the time they committed their offences. As this constituted a variation in punishment for the purpose of s. 11 (i) of the Charter, the violation was not saved by s. 1 of the Charter. No determination was made in Lewis about offenders who had committed discreet offences before and after the repeal of APR. (See also Liang v. Canada (Attorney General) 2014 BCCA 190, [2014] B.C.J. No.962 (B.C.C.A.))
[14] The Court of Appeal commented in obiter that cases of individuals sentenced for some offences committed before the repeal of the APR regime and other offences committed after the repeal will have to be considered on their own facts and in light of the sentence or sentences imposed. The Court of Appeal endorsed the concept of focusing on the date the offences were committed, but did not expand on the issue further as Ms. Craddock, one of the Applicants in the Lewis case, was released under the standard parole regime prior to the appeal being heard and the appeal as it related to Ms. Craddock was deemed to be moot.
[15] Sentence managers at CSC are obligated to apply the current provisions of the CCRA and have no discretion in determining eligibility for parole. They deny APR eligibility to offenders that have committed offences before and after the repeal of APR. They denied APR to Mr. Heywood.
[16] In Bernard v. Canada (Attorney General), 2015 ONSC 7417 (SCJ), released December 7, 2015, Tranmer J. held that in circumstances where the offender committed discreet offences before and after the repeal of the APR and received multiple concurrent sentences, there was no breach of s. 11(i) of the Charter. He held that it was not the repeal of the APR that appreciably increased the amount of time the offender would be incarcerated, but rather the commission of discreet offences by the offender after the repeal of APR that appreciably increased the amount of time the offender would be incarcerated. By committing offences after the repeal of APR, it caused the offender to remain in custody longer than if he had only committed offences prior to the repeal of APR. The court held that Mr. Bernard was not entitled to the benefit of APR for all of his offences, simply because some of them occurred before APR was repealed. The Bernard case has the same essential factual background as Mr. Heywood’s case.
ANALYSIS
[17] Mr. Heywood was sentenced to six distinct sentences for six separate offences. I find Mr. Heywood is not entitled to APR for the offences committed after March 28, 2011, namely the last five of his offences. In considering Mr. Heywood’s case on its own facts and in light of the form of the sentence or sentences imposed, there has been no variation in punishment for Mr. Heywood. The repeal of the APR has not appreciably increased the amount of time he would be incarcerated in comparison to what he would have expected under the parole regime during the time he committed his last five offences, after the repeal of APR on March 28, 2011.
[18] Under the CCRA, there can only be one day parole eligibility date established on a sentence, one full parole date and one statutory release date. An offender cannot be eligible for day parole of one-sixth of a sentence under APR, and as well at six months prior to full parole as in the CCRA, and subject to two different tests for parole eligibility. It is important that all offenders are subject to the same criteria when assessed by the Parole Board. Importantly, where sentences give rise to different parole eligibility dates, the latter date prevails. (See Sections 119, 120.1, 120.2, CCRA).
[19] Mr. Heywood is deemed to have fair notice of the change in the law. He knew at the time he committed his latter five offences, what the regime in place at the time was under the CCRA as amended, namely no APR. His settled expectation of liberty at the time he committed his latter five offences was that there was no entitlement to APR. There was therefore no breach of his s. 11 (i) Charter rights.
[20] Mr. Heywood’s expectation of liberty was not thwarted by retrospective legislative action constituting punishment that had the effect of automatically lengthening his sentence like it did in relation to the Applicants in the Lewis case. Rather, Mr. Heywood’s expectation of liberty was lengthened by his own actions in committing five offences after the repeal of APR when he knew the standard parole regime was in effect.
[21] Mr. Heywood is not entitled to the benefit from APR for all of his offences simply because one of them occurred before APR was repealed. The meaning of a right or freedom guaranteed by the Charter, is to be determined by an analysis of the purpose of such a guarantee, or the interests it was meant to protect. S. 11 (i) of the Charter was meant to prevent a variation in punishment . I choose to follow the result in the Bernard case, as the factual basis is analogous to Mr. Heywood’s case. I can find no compelling reason to do otherwise. As held by Tranmer J. in Bernard, to hold otherwise, goes beyond the purpose of s. 11(i) of the Charter and would include offences s. 11(i) never intended to protect.
[22] The repeal of APR did not result in a variation of punishment for Mr. Heywood. Mr. Heywood’s own actions in committing additional offences after the repeal of APR did. Mr. Heywood’s s. 11 (i) Charter rights were not breached. S. 10 (1) of the AEPA does not violate s. 11(i) the Charter on the facts of Mr. Heywood’s case.
RESULT
[23] In the result, the application is dismissed.
The Honourable Madam Justice Helen MacLeod-Beliveau
Released: March 4, 2016
CITATION: Heywood v. Canada (Attorney General), 2016 ONSC 1516
COURT FILE NO.: CR-15-580-MO
DATE: 2016 Mar 04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AKIL HEYWOOD
Applicant
– and –
ATTORNEY GENERAL OF CANADA
Respondent
DECISION ON S. 11 (i) OF THE CHARTER TO DECLARE OFFENDERS
ELIGIBLE OR NOT FOR ACCELERATED PAROLE REVIEW
MacLeod-Beliveau J.
Released: March 4, 2016