Gamble v. R., (1988) 31 O.A.C. 81 (SCC)

• Judge: Dickson, C.J.C., Beetz, Lamer, Wilson and L'Heureux-Dubé, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 08, 1988
• Jurisdiction: Canada (Federal)
• Citations: (1988), 31 O.A.C. 81 (SCC)

Gamble v. R. (1988), 31 O.A.C. 81 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Janise Marie Gamble (appellant) v. Her Majesty the Queen (respondent) and Attorney General for Alberta and Attorney General for Ontario (intervenors)

(No. 20433)

Indexed As: Gamble v. R.

Supreme Court of Canada

Dickson, C.J.C., Beetz, Lamer, Wilson and L'Heureux-Dubé, JJ.

December 8, 1988.

Summary:

In 1976 the accused was charged with murder contrary to s. 214 of the Criminal Code. The accused was committed for trial on a charge of first degree murder when under the amended s. 214, which came into force after the offence was committed and imposed a lesser burden on the Crown. The accused was convicted and sentenced to life imprisonment without eligibility for parole for 25 years (s. 669(a)). At the time of the offence the Criminal Code provided for parole after a minimum of 10 years and a maximum of 20 years. The accused appealed.

The Alberta Court of Appeal, in a judgment reported 9 A.R. 179; 40 C.C.C.(2d) 415, dismissed the appeal. The court held that since the offence predated the amendment the accused should have been tried under the old provisions of the Criminal Code. The court held that the accused was prejudiced, but s. 27(2) of the amending legislation (the transitional provision) precluded the granting of a new trial because it required the trial to be governed by the amended provisions. The accused applied for leave to appeal.

The Supreme Court of Canada, in a judgment reported [1978] 2 S.C.R. VII; 23 N.R. 625; 12 A.R. 448, denied leave. The accused spent 12 years in an Ontario prison. In 1986 she applied to the Supreme Court of Ontario by way of habeas corpus with certiorari in aid and under s. 24(1) of the Charter of Rights and Freedoms claiming that her continued detention under the 25 year parole ineligibility condition of her sentence violated her rights under ss. 7 and 11(i) of the Charter.

The Ontario Supreme Court dismissed the application on the ground that, inter alia, only the Alberta courts had jurisdiction. The accused appealed.

The Ontario Court of Appeal dismissed the appeal on the ground that the courts of Alberta were the proper forum. The accused appealed, claiming her continued detention violated s. 7 of the Charter. The accused claimed entitlement to a declaration under s. 24(1) of the Charter that she was now eligible for parole.

The Supreme Court of Canada, Dickson, C.J.C., and Beetz, J., dissenting, allowed the appeal and declared that the accused be eligible for parole as of the date the court's judgment was released. The court held that the Charter was not applied retrospectively; that the Ontario courts had jurisdiction to determine the issues raised; that review of the accused's continued detention was available by way of habeas corpus with certiorari in aid and under s. 24(1) of the Charter and that the accused was denied her residual liberty interests contrary to s. 7 of the Charter.

Dickson, C.J.C., Beetz, J., concurring, stated that the case required a retrospective application of the Charter, therefore the appeal should be dismissed.

Civil Rights - Topic 646

Liberty - Limitations on - Prisoners - Parole ineligibility - An accused was convicted of murder in 1976 under the wrong provisions of the Criminal Code - She should have been tried under the provisions respecting murder in force at the time of the offence, but was tried under amended provisions that came into force after the offence was committed - The accused was ineligible for parole for 25 years under the new provisions, rather than between 10 and 20 years under the old provisions - The transitional provision of the amending legislation precluded a new trial - The Supreme Court of Canada stated that the current operation of the parole ineligibility condition in the accused's sentence infringed her residual liberty interests contrary to s. 7 of the Charter of Rights and Freedoms - The court held that the accused's liberty rights were not denied in accordance with the principles of fundamental justice - See paragraphs 56 to 61.

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - [See Civil Rights - Topic 646 above].

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - Application of - Retrospectivity - In 1976 the accused was improperly charged with murder (and convicted and sentenced) under Criminal Code provisions that came into force after the offence was committed - The error could not be remedied because s. 27(2) of the amending legislation required a new trial, if ordered, to be conducted under the amended provisions - In 1986 the accused claimed that her continued detention under the 25 year parole ineligibility condition of her sentence violated her right to liberty under s. 7 of the Charter - As the sentence was imposed prior to the Charter, the Crown submitted that the relief sought would require a retrospective application of the Charter - The Supreme Court of Canada stated that the relevant act to which the Charter applied was not the pre-Charter conviction or sentencing, but the post-Charter continuing execution of the sentence mandating a 25 year period of parole ineligibility - The court stated that although the Charter could not apply retrospectively to overturn a pre-Charter conviction and sentence, it could be applied prospectively to a current continuing violation of the accused's residual liberty interests - See paragraphs 16 to 27.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice - [See Civil Rights - Topic 646 above].

Civil Rights - Topic 8367

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Interpretation - The Supreme Court of Canada stated that "a purposive approach should, in my view, be applied to the administration of Charter remedies as well as to the interpretation of Charter rights ... Under s. 24(1) of the Charter courts should not allow habeas corpus applications to be used to circumvent the appropriate appeal process, but neither should they bind themselves to overly rigid rules about the availability of habeas corpus which may have the effect of denying applicants access to courts to obtain Charter relief" - See paragraph 47.

Civil Rights - Topic 8380.11

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Habeas corpus - The Supreme Court of Canada stated "that a purposive and expansive approach to the remedy of habeas corpus leads me to conclude that the writ is appropriately used to review the legality of the significant deprivation of liberty inherent in the operation of the parole ineligibility provision in this case. This review can take place without either circumventing the appeal process or becoming de facto an appeal on the merits. The role of habeas corpus as a remedy under s. 24(1) of the Charter reinforces the policy of flexibly and generously adapting the writ in order that it continue to protect the liberty interests now constitutionally protected under the Charter" - See paragraph 55.

Civil Rights - Topic 8469

Canadian Charter of Rights and Freedoms - Interpretation - United States experience - The Supreme Court of Canada, in identifying the kinds of liberty interests served by the habeas corpus remedy, considered American cases - See paragraph 53.

Civil Rights - Topic 8589

Canadian Charter of Rights and Freedoms - Practice - Pleadings - The Supreme Court of Canada stated that "in general, applicants for Charter relief should, I believe, be allowed a reasonable measure of flexibility in framing their claims for relief in light of the interests the Charter rights on which they rely are designed to protect" - See paragraph 41.

Habeas Corpus - Topic 2

When available - In 1976 an accused was improperly tried and convicted under a section of the Criminal Code that was amended after the offence was committed - The amended section placed a lesser burden on the Crown and subjected the accused to a greater period of parole ineligibility - A new trial was not ordered because the transitional provisions of the amending legislation would require a new trial to be conducted under the amended legislation - In 1986 the accused applied for habeas corpus with certiorari in aid, claiming that her continued detention violated s. 7 of the Charter of Rights and Freedoms - The Supreme Court of Canada stated that "the continuation of the 25 year period of parole ineligibility deprives the appellant of an important residual liberty interest which is cognizable under s. 7 and which may be appropriately remedied by way of habeas corpus if found to be unlawful" - The court stated that the accused was not circumventing ordinary appeal provisions nor making a collateral attack on the sentence - The basis of the accused's claim was that the Charter made the 25 year parole ineligibility condition of the sentence no longer valid - See paragraphs 36 to 55.

Habeas Corpus - Topic 508

Jurisdiction to issue writ - General - Where prisoner convicted and sentenced in another jurisdiction - An accused was convicted and sentenced in Alberta - The accused was imprisoned in Ontario - The Supreme Court of Canada stated that the fact that the accused was convicted and sentenced in Alberta did not deprive the Ontario courts of their traditional jurisdiction to issue habeas corpus to those in Ontario who challenge the legality of their detention or confinement - The court stated that "habeas corpus proceedings can be pursued in the courts of the province of the alleged illegal detention" - See paragraphs 28 to 35.

Habeas Corpus - Topic 2004

Powers of court issuing writ - General - Scope of review - The Supreme Court of Canada stated that "there is no doubt that considerable uncertainty has clouded the scope of review open to a court on an application for habeas corpus ... and it is understandable that courts have, in general, not bound themselves to limited categories or definitions of jurisdictional review when the liberty of the subject was at stake. I think that this trend should be affirmed where habeas corpus is sought as a Charter remedy and that distinctions which have become uncertain, technical, artificial and, most importantly, nonpurposive should be rejected" - See paragraph 45.

Cases Noticed:

R. v. Gamble and Nichols (1978), 9 A.R. 179; 40 C.C.C.(2d) 415, refd to. [para. 5].

R. v. Miller and Cockriell, [1977] 2 S.C.R. 680; 11 N.R. 386, refd to. [para. 7].

R. v. Logan and Dunbar (1986), 14 O.A.C. 382; 51 C.R.(3d) 326 (C.A.), refd to. [para. 7].

Milne v. Canada et al., [1987] 2 S.C.R. 512; 81 N.R. 36, dist. [para. 16].

Mitchell v. Attorney General of Ontario (1983), 35 C.R.(3d) 225 (Ont. H.C.), refd to. [para. 18].

R. v. Konechny (1983), 10 C.C.C.(3d) 233 (B.C.C.A.), refd to. [para. 18].

R. v. Stevens, [1988] 1 S.C.R. 1153; 86 N.R. 85; 28 O.A.C. 243, refd to. [para. 19].

R. v. James, Kirsten, Rosenthal and Dzagie (1986), 15 O.A.C. 319; 27 C.C.C.(3d) 1 (C.A.), affd. [1988] 1 S.C.R. 669; 85 N.R. 1, refd to. [para. 19].

R. v. Antoine (1983), 5 C.C.C.(3d) 97 (Ont. C.A.), refd to. [para. 20].

R. v. Dickson and Corman (1982), 3 C.C.C.(3d) 23, agreed with [para. 21].

Restrictive Trade Practices Commission et al. v. Irvine et al., [1987] 1 S.C.R. 181; 74 N.R. 33, refd to. [para. 21].

R. v. Dubois, [1985] 2 S.C.R. 350; 62 N.R. 50; 66 A.R. 205, refd to. [para. 21].

R. v. McDonald (1985), 10 O.A.C. 321; 21 C.C.C.(3d) 330 (C.A.), refd to. [para. 22].

R. v. Longtin (1983), 5 C.C.C.(3d) 12 (Ont. C.A.), refd to. [para. 23].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 24].

R. v. Jack and Charlie, [1985] 2 S.C.R. 332; 62 N.R. 14, refd to. [para. 24].

R. v. Lucas; R. v. Neely (1986), 14 O.A.C. 124; 27 C.C.C.(3d) 229 (C.A.), refd to. [para. 25].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 26 C.C.C.(3d) 481; 2 C.R.R. 76, refd to. [para. 28].

R. v. Riel (1885), 2 Man.L.R. 302 (Man. Q.B.), refd to. [para. 29].

Ex parte Stather (1886), 25 N.B.R. 374 (N.B.S.C.), refd to. [para. 29].

R. v. Holmes, [1932] 3 W.W.R. 76 (Man. K.B.), refd to. [para. 29].

Laflamme v. Renaud (1945), 84 C.C.C. 153 (Que. S.C.), refd to. [para. 29].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183, refd to. [para. 31].

Sanders v. The Queen, [1970] S.C.R. 109, refd to. [para. 32].

Antares Shipping Corp. v. Ship "Capricorn", [1977] 2 S.C.R. 422; 7 N.R. 518, refd to. [para. 33].

Re Krakowski and The Queen (1983), 4 C.C.C.(3d) 188 (Ont. C.A.), refd to. [para. 33].

Re Anson and The Queen (1983), 4 C.C.C.(3d) 119 (B.C.C.A.), refd to. [para. 33].

R. v. Miller, [1985] 2 S.C.R. 613; 63 N.R. 321; 14 O.A.C. 33, refd to. [para. 33].

Cardinal and Oswald v. Kent Institution, Director of, [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 34].

Morin v. National Special Handling Unit Review Committee, [1985] 2 S.C.R. 662; 63 N.R. 363, refd to. [para. 34].

Dumas v. National Parole Board, [1986] 2 S.C.R. 459; 72 N.R. 61, refd to. [para. 34].

Argentina (Republic) v. Mellino, [1987] 1 S.C.R. 536; 76 N.R. 51, refd to. [para. 34].

Re Trepanier (1885), 12 S.C.R. 111, refd to. [para. 37].

Re Sproule (1886), 12 S.C.R. 140, refd to. [para. 37].

Goldhar (No. 2) v. The Queen, [1960] S.C.R. 431, refd to. [para. 37].

Morrison v. The Queen, [1966] S.C.R. 356, refd to. [para. 37].

Karchesky v. The Queen, [1967] S.C.R. 547, refd to. [para. 37].

Korponay v. Kulik, [1980] 2 S.C.R. 265, refd to. [para. 37].

R. v. Wigman, [1987] 1 S.C.R. 246; 75 N.R. 51, refd to. [para. 37].

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 194, refd to. [para. 38].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 41].

Ex parte Risby (1975), 24 C.C.C.(2d) 211 (B.C.S.C.), refd to. [para. 44].

Re Arrigo and The Queen (1986), 29 C.C.C.(3d) 77 (Ont. H.C.), refd to. [para. 45].

Re Cadeddu and The Queen (1982), 4 C.C.C.(3d) 97 (Ont. H.C.), refd to. [para. 47].

Swan v. Attorney General of British Columbia (1983), 35 C.R.(3d) 135 (B.C.S.C.), refd to. [para. 47].

Lussa v. Health Science Centre (1983), 9 C.R.R. 350 (Man. Q.B.), refd to. [para. 47].

MacAllister v. Director of Centre de Réception (1984), 40 C.R.(3d) 121 (Que. S.C.), refd to. [para. 47].

Re Marshall and The Queen (1984), 13 C.C.C.(3d) 73 (Ont. H.C.), refd to. [para. 47].

Re Jenkins (1984), 45 Nfld. & P.E.I.R. 131; 132 A.P.R. 131; 8 C.R.R. 142 (P.E.I.C.A.), refd to. [para. 47].

Jollimore v. Nova Scotia (Attorney General) (1986), 75 N.S.R.(2d) 191; 186 A.P.R. 191; 24 C.R.R. 28 (T.D.), refd to. [para. 47].

Balian v. Regional Transfer Board (1988), 62 C.R.(3d) 258 (Ont. H.C.), refd to. [para. 47].

Re Hass and The Queen (1978), 40 C.C.C.(2d) 202 (Ont. H.C.), refd to. [para. 48].

Jones v. Cunningham (1962), 371 U.S. 236, refd to. [para. 53].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 53].

Masella v. Langlais, [1955] S.C.R. 263, refd to. [para. 53].

Preiser v. Rodriguez (1973), 411 U.S. 475, refd to. [para. 54].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 62].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [paras. 12, 74]; sect. 11(i), sect. 24(1) [para. 12].

Criminal Code, R.S.C. 1970, c. C-34, sect. 21 [para. 4]; sect. 214, sect. 218 [paras. 10, 66]; sect. 603(1)(b) [paras. 32, 77]; sect. 669(a) [paras. 10, 65].

Criminal Law Amendment Act (No. 2), S.C. 1974-75-76, c. 105, sect. 4, sect. 5, sect. 21 [para. 10]; sect. 27 [paras. 11, 68].

Criminal Law Amendment (Capital Punishment) Act, S.C. 1973-74, c. 38, sect. 2, sect. 3 [para. 10].

Authors and Works Noticed:

Black, W., Charter of Rights - Application to Pre-Enactment Events, [1982] U.B.C.L. Rev. (Charter Ed.) 59, pp. 90-92 [para. 18].

Letourneau, G., The Prerogative Writs in Canadian Criminal Law and Procedure (1976), pp. 310-312 [para. 29].

Harvey, D.A.C., The Law of Habeas Corpus in Canada (1974), p. 66ff [para. 29].

Sharpe, R.J., The Law of Habeas Corpus (1976), pp. 144-145 [para. 49]; 191 [para. 29].

Sentencing Reform: A Canadian Approach (1987), c. 10 [para. 50].

Counsel:

Colin K. Irving, Allan Manson and Franklin S. Gertler, for the appellant;

Ivan Whitehall, Q.C., and Ron Fainstein, Q.C., for the respondent;

Manfred DeLong, for the Attorney General for Alberta;

Jeff Casey, for the Attorney General for Ontario.

Solicitors of Record:

McMaster Meighen, Montreal, Quebec, for the appellant;

The Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent;

Manfred DeLong, Calgary, Alberta, for the intervenor, the Attorney General for Alberta;

The Ministry of the Attorney General, Toronto, Ontario, for the intervenor, the Attorney General for Ontario.

This appeal was heard on June 17, 1988, before Dickson, C.J.C., Beetz, Lamer, Wilson and L'Heureux-Dubé, JJ., of the Supreme Court of Canada.

On December 8, 1988, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Wilson, J. (Lamer and L'Heureux-Dubé, JJ., concurring) - see paragraphs 1 to 63;

Dickson, C.J.C., dissenting (Beetz, J., concurring) - see paragraphs 64 to 82.