Nucci et al. v. Canada (Attorney General), 2015 MBCA 122

• Judge: MacInnes, Burnett and Pfuetzner, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 19, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 122;(2015), 323 Man.R.(2d) 228 (CA)

Nucci v. Can. (A.G.) (2015), 323 Man.R.(2d) 228 (CA);

      657 W.A.C. 228

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. JA.005

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/appellants) v. The Attorney General of Canada (respondent/respondent)

(AI 15-30-08353; 2015 MBCA 122)

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

Manitoba Court of Appeal

MacInnes, Burnett and Pfuetzner, JJ.A.

December 15, 2015.

Summary:

Section 10(1) of the Abolition of Early Parole Act (AEPA) provided that the accelerated parole review (APR) process set out in ss. 125 to 126.1 of the Corrections and Conditional Release Act did not apply to offenders who were sentenced on or after March 28, 2011. The applicants were first time, nonviolent offenders who had been sentenced after the APR process was repealed, although it was in force when they were arrested.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, in a decision reported at 313 Man.R.(2d) 286, dismissed the application. The repeal of the APR process had not violated the applicants' Charter rights. The applicants appealed.

The Manitoba Court of Appeal allowed the appeal. The court held that s. 10(1) of the AEPA was not valid because it infringed s. 11(i) of the Charter and could not be justified under s. 1, to the extent that it purported to apply to offenders sentenced on or after March 28, 2011, for offences committed before that date. Given the findings based on s. 11(i), there was no need to consider the s. 7 arguments.

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 Criminal Law - Topic 5666.1 ].

Civil Rights - Topic 3765

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

Civil Rights - Topic 3766

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

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 5666.1 ].

Criminal Law - Topic 5602

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

Criminal Law - Topic 5609

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

Criminal Law - Topic 5666.1

Punishments (sentence) - Imprisonment and parole - Accelerated parole - Section 10(1) of the Abolition of Early Parole Act (AEPA) provided that the accelerated parole review (APR) process in ss. 125 to 126.1 of the Corrections and Conditional Release Act did not apply to offenders who were sentenced on or after March 28, 2011 - 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 alleged a violation of s. 11(i) of the Charter - The Manitoba Court of Appeal held that the AEPA was retroactive legislation in the sense that it applied to offences that occurred before the legislation was proclaimed - The effect of s. 10(1) was to "automatically" and "appreciably" increase the period of incarceration for the applicants, and that increase in incarceration was a variation and increase in punishment - Therefore, s. 10(1) of the AEPA was not valid because it infringed s. 11(i) of the Charter and could not be justified under s. 1, to the extent that it purported to apply to offenders sentenced on or after March 28, 2011, for offences committed before that date - See paragraphs 21 to 36.

Statutes - Topic 6714

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Retrospective or retroactive operation - Criminal or penal legislation - [See Civil Rights - Topic 5666.1 ].

Cases Noticed:

Liang v. Canada (Attorney General) (2014), 355 B.C.A.C. 238; 607 W.A.C. 238; 311 C.C.C.(3d) 159; 2014 BCCA 190, leave to appeal refused [2014] S.C.C.A. No. 298, folld. [para. 5].

Lewis et al. v. Canada (Attorney General) (2015), 336 O.A.C. 34; 2015 ONCA 379, folld. [para. 5].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 7].

R. v. Farrah (D.) (2011), 268 Man.R.(2d) 112; 520 W.A.C. 112; 2011 MBCA 49, refd to. [para. 7].

Whaling v. Canada (Attorney General), [2014] 1 S.C.R. 392; 455 N.R. 1; 351 B.C.A.C. 43; 599 W.A.C. 43; 2014 SCC 20, refd to. [para. 9].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 14].

Canadian Broadcasting Corp. et al. v. Canada (Attorney General) et al., [2011] 1 S.C.R. 19; 411 N.R. 23; 2011 SCC 2, refd to. [para. 20].

Lapple v. Canada (Attorney General), [2015] O.A.C. Uned. 380; 2015 ONCA 385, refd to. [para. 21].

Frost v. Canada (Attorney General), [2015] O.A.C. Uned. 381; 2015 ONCA 386, refd to. [para. 21].

Statutes Noticed:

Abolition of Early Parole Act, S.C. 2011, c. 11, sect. 10(1) [para. 1].

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

Counsel:

S.J. Thliveris, for the appellants;

N. Reddy and B.S. Friesen, for the respondent.

This appeal was heard on October 19, 2015, before MacInnes, Burnett and Pfuetzner, JJ.A., of the Manitoba Court of Appeal. The following decision was delivered for the court by Burnett, J.A., on December 15, 2015.