Nucci et al. v. Canada (Attorney General), (2015) 313 Man.R.(2d) 286 (QB)

• Judge: Edmond, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 13, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 313 Man.R.(2d) 286 (QB);2015 MBQB 7

Nucci v. Can. (A.G.) (2015), 313 Man.R.(2d) 286 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. FE.035

Mario Nucci, Jose Ledo, Jay Bernaldo, Gordon Dack, Duy Nguyen, Jeremy Ritchot, Kareem Martin Jr., Darren Lindsay, Viet Chung, Jon Hayden Anthony, Stephen McCorkle, Paul Paredes, Oliver Voluntad, Blair Field and Jack Wladyka (applicants) v. The Attorney General of Canada (respondent)

(CI 14-01-88799; 2015 MBQB 7)

Indexed As: Nucci et al. v. Canada (Attorney General)

Manitoba Court of Queen's Bench

Winnipeg Centre

Edmond, J.

January 13, 2015.

Summary:

Under the Abolition of Early Parole Act, the "accelerated parole review" (APR) process in the Corrections and Conditional Release Act for first time, nonviolent offenders was repealed. The applicants were first time, nonviolent offenders who had been sentenced after the APR process was repealed, although it was in force when they were arrested. The applicants sought an order applying the APR process to them on the basis that its denial violated their rights under ss. 7 and 11(i) of the Charter.

The Manitoba Court of Queen's Bench dismissed the application. The repeal of the APR process had not violated the applicants' Charter rights.

Civil Rights - Topic 646

Liberty - Limitations on - Prisoners and imprisonment (incl. conditional sentences) - [See second Criminal Law - Topic 5666.1 ].

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - [See second Criminal Law - Topic 5666.1 ].

Civil Rights - Topic 1209

Security of the person - General - Detention and imprisonment - [See second Criminal Law - Topic 5666.1 ].

Civil Rights - Topic 3131.1

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to benefit of lesser punishment - [See first Criminal Law - Topic 5666.1 ].

Civil Rights - Topic 3765

Punishment - General - Variation of punishment after offence - Benefit of lesser punishment - [See first Criminal Law - Topic 5666.1 ].

Civil Rights - Topic 3766

Punishment - General - Punishment defined - [See first Criminal Law - Topic 5666.1 ].

Criminal Law - Topic 5602

Punishments (sentence) - General principles - Punishment defined - [See first Criminal Law - Topic 5666.1 ].

Criminal Law - Topic 5609

Punishments (sentence) - General principles - Right to benefit of lesser punishment - [See first Criminal Law - Topic 5666.1 ].

Criminal Law - Topic 5666.1

Punishments (sentence) - Imprisonment and parole - Accelerated parole - Under the Abolition of Early Parole Act (AEPA), the "accelerated parole review" (APR) process in the Corrections and Conditional Release Act for first time, nonviolent offenders was repealed - The applicants were first time, nonviolent offenders who had been sentenced after the APR process was repealed, although it was in force when they were arrested - The applicants sought an order applying the APR process to them on the basis that its denial violated their rights under s. 11(i) of the Charter - The Manitoba Court of Queen's Bench dismissed the application - The repeal of the APR process had not violated the applicants' Charter rights - The refusal to apply the repealed APR process in these circumstances did not amount to punishment within the meaning of s. 11(i) - While changes to an already issued sentence's conditions could constitute punishment, prospective changes to parole administration, where a sentence had not been imposed, merely constituted Parliament's exercise of its authority to administer sentences - Section 11(i) was not engaged - In refusing to apply the APR process to the applicants, Correctional Services Canada was applying the law in force as of the date of sentencing - The repeal of the APR process prior to the applicants' being sentenced did not mean that the applicants should benefit from the process because they committed their offences prior to the coming into force of the AEPA - See paragraphs 19 to 43.

Criminal Law - Topic 5666.1

Punishments (sentence) - Imprisonment and parole - Accelerated parole - Under the Abolition of Early Parole Act (AEPA), the "accelerated parole review" (APR) process in the Corrections and Conditional Release Act for first time, nonviolent offenders was repealed - The applicants were first time, nonviolent offenders who had been sentenced after the APR process was repealed, although it was in force when they were arrested - The applicants sought an order applying the APR process to them on the basis that its denial violated their rights under s. 7 of the Charter - The Manitoba Court of Queen's Bench dismissed the application - The repeal of the APR process had not violated the applicants' Charter rights - The applicants had not suffered a deprivation of their liberty beyond that which resulted from their convictions - The repeal of the APR process prior to sentencing did not cause a deprivation of liberty that was inconsistent with any known principle of fundamental justice - Even if there had been a deprivation of liberty, it was not sufficiently serious to attract Charter protection - Changes that came into effect by the passage of the AEPA were akin to changes made in the sentence management process that had been found to be in compliance with s. 7 - See paragraphs 44 to 49.

Cases Noticed:

Lewis v. Canada (Attorney General), 2014 ONSC 6394, refd to. [para. 11].

Whaling v. Canada (Attorney General) (2014), 455 N.R. 1; 351 B.C.A.C. 43; 599 W.A.C. 43; 2014 SCC 20, consd. [para. 13].

Liang v. Canada (Attorney General) (2014), 355 B.C.A.C. 238; 607 W.A.C. 238; 2014 BCCA 190, refd to. [para. 15].

Frost v. Canada (Attorney General), 2014 ONSC 5666, agreed with [para. 17].

Lapple v. Canada (Attorney General), 2014 ONSC 5670, agreed with [para. 22].

R. v. Johnson (J.J.), [2003] 2 S.C.R. 357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161; 2003 SCC 46, refd to. [para. 26].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 27].

Abel v. Edmonton Institute for Women (Director) et al. (2000), 275 A.R. 152; 149 C.C.C.(3d) 401 (Q.B.), refd to. [para. 28].

Caruana v. Bath Institution et al., [2002] O.T.C. 21; 48 C.R.(5th) 285 (Sup. Ct.), refd to. [para. 29].

Berenstein v. Commission nationale des libérations conditionnelles (1996), 111 F.T.R. 231 (T.D.), refd to. [para. 31].

Sowa v. Canada et al. (2000), 143 B.C.A.C. 223; 235 W.A.C. 223; 2000 BCCA 558, disagreed with [para. 32].

R. v. Jackpine (R.), [2006] 1 S.C.R. 544; 347 N.R. 201; 210 O.A.C. 200; 2006 SCC 15, refd to. [para. 39].

R. v. Rodgers (D.) - see R. v. Jackpine (R.).

Cunningham v. Canada, [1993] 2 S.C.R. 143; 151 N.R. 161; 62 O.A.C. 243, refd to. [para. 41].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 45].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(i) [Schedule B].

Counsel:

Stephan J. Thliveris, for the applicants;

Joel I. Katz and Brendan S. Friesen, for the respondent.

This application was heard by Edmond, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on January 13, 2015.