Whaling v. Canada (Attorney General), (2014) 351 B.C.A.C. 43 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 20, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 351 B.C.A.C. 43 (SCC);2014 SCC 20;JE 2014-524;AZ-51056184;[2014] EXP 972;[2014] 1 SCR 392;[2014] SCJ No 20 (QL);[2014] ACS no 20;372 DLR (4th) 58

Whaling v. Can. (A.G.) (2014), 351 B.C.A.C. 43 (SCC);

    599 W.A.C. 43

MLB headnote and full text

[French language version follows English language version]

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

.........................

Temp. Cite: [2014] B.C.A.C. TBEd. MR.038

Attorney General of Canada (appellant) v. Christopher John Whaling (respondent)

Attorney General of Canada (appellant) v. Judith Lynn Slobbe (respondent)

Attorney General of Canada (appellant) v. Cesar Maidana (respondent) and Attorney General of Ontario and British Columbia Civil Liberties Association (intervenors)

(35024; 2014 SCC 20; 2014 CSC 20)

Indexed As: Whaling v. Canada (Attorney General)

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

March 20, 2014.

Summary:

The accelerated parole review (APR) provisions of the Corrections and Conditional Release Act made federal inmates eligible for parole after serving one-sixth of their sentences, if the National Parole Board was satisfied that there were no reasonable grounds to believe that they would likely commit an offence if released. The APR provisions were repealed effective March 28, 2011. The repeal applied retrospectively to all inmates who were serving their sentence. After the repeal, eligibility for release on day parole was delayed and the test for release was made more onerous. Three inmates applied for a declaration that the retrospective application of the APR provisions repeal violated their s. 11(h) Charter right not to be punished again for the offence for which they were found guilty and punished.

The British Columbia Supreme Court, in a judgment reported [2012] B.C.T.C. Uned. 944, held that the retrospective repeal of the APR provisions violated s. 11(h) and was not saved as a reasonable limit prescribed by law under s. 1. The court declared the retrospective application invalid and declined to suspend the declaration of invalidity. The Attorney General appealed.

The British Columbia Court of Appeal, in a judgment reported (2012), 329 B.C.A.C. 118; 560 W.A.C. 118, dismissed the appeal. The court stated that "the retrospective application of the repeal of APR to offenders who were serving their sentences at the time of the repeal violates their rights not to be 'punished again' for their offences, contrary to s. 11(h) of the Charter, and the violation is not a reasonable limit for the purpose of s. 1". The Crown appealed.

The Supreme Court of Canada dismissed the appeal. The impugned APR provisions violated s. 11(h) of the Charter and were not saved as reasonable limits prescribed by law (s. 1). The court upheld the remedy ordered by the trial judge.

Civil Rights - Topic 3764

Punishment - General - Double punishment prohibited (Charter, s. 11(h)) - The accelerated parole review (APR) provisions of the Corrections and Conditional Release Act made federal inmates eligible for day parole after serving one-sixth of their sentences, if the National Parole Board was satisfied that there were no reasonable grounds to believe that they would likely commit an offence if released - The Abolition of Early Parole Act repealed the APR provisions - The repeal applied retrospectively to all inmates who were serving their sentence - After the repeal, eligibility for release on day parole was delayed to six months before the full parole eligibility date and the test for release was more onerous - The Supreme Court of Canada held that "The retrospective application of delayed parole eligibility violated the [accuseds'] s. 11(h) right not to be 'punished ... again', and that violation was not justified under s. 1 of the Charter" - Section 11(h) applied where an accused had been sentenced, even if no separate proceeding had taken place - The court stated that "retrospectively imposing delayed parole eligibility on offenders who have already been sentenced constitutes punishment. ... Generally speaking, a retrospective change to the conditions of a sentence will not be considered punitive if it does not substantially increase the risk of additional incarceration. ... A change that directly results in an extension of the period of incarceration without regard to the offender's individual circumstances and without procedural safeguards in the assessment process will clearly violate s. 11(h). ... where legislation makes retrospective changes to parole eligibility, it will violate s. 11(h) if its purpose is to prolong the offender's period of incarceration." - The court held that the APR provisions had the effect of punishing the accused again - The court agreed that the objectives of the APR provisions were pressing and substantial, but failed the minimal impairment test, as the repeal of the APR provisions could have applied only prospectively - See paragraphs 28 to 80.

Civil Rights - Topic 3764

Punishment - General - Double punishment prohibited (Charter, s. 11(h)) - The Supreme Court of Canada stated that "s. 11(h) precludes the following further state actions in relation to the same offence: (a) a proceeding that is criminal or quasi-criminal in nature (being 'tried ... again'); (b) an additional sanction or consequence that meets the two-part Rodgers test for punishment (being 'punished ... again') in that it is similar in nature to the types of sanctions available under the Criminal Code and is imposed in furtherance of the purpose and principles of sentencing; and (c) retrospective changes to the conditions of the original sanction which have the effect of adding to the offender's punishment (being 'punished ... again')" - See paragraph 54.

Civil Rights - Topic 3766

Punishment - General - Punishment defined - [See first Civil Rights - Topic 3764 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See first Civil Rights - Topic 3764 ].

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - The accelerated parole review (APR) provisions of the Corrections and Conditional Release Act were repealed by the Abolition of Early Parole Act (AEPA) - The repeal applied retrospectively to all inmates who were serving their sentence (s. 10(1)) - The repeal delayed eligibility for day parole, which violated s. 11(h) of the Charter and was not saved as a reasonable limit prescribed by law (s. 1) - Other provisions of the APR system, including review procedure and criteria for release, were not subjected to serious analysis as to whether their retrospective repeal was unconstitutional - At trial and on appeal, s. 10(1) was declared invalid in its entirety (not read down to limit invalidity to delayed parole eligibility) - The Supreme Court of Canada affirmed the invalidity of s. 10(1) in its entirety - The court stated that "I have not found other aspects of the AEPA to be unconstitutional. At first blush, I do not see anything impractical or offensive about having the pre-APR parole procedures that are now in force apply while at the same time following the timelines for early day parole eligibility" - A limited declaration was not sought at trial or appeal - A cautious approach favoured upholding the full declaration of invalidity - Severance would not be workable in the context of this legislation - Allowing the AEPA to be read down to allow the retrospective repeal of some aspects of the APR to stand, but not others, "would result in a provision that would be impossible to implement" - See paragraphs 81 to 88.

Civil Rights - Topic 8380.18

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Reading down - [See Civil Rights - Topic 8380.2 ].

Cases Noticed:

R. v. Jackpine (R.), [2006] 1 S.C.R. 554; 347 N.R. 201; 210 O.A.C. 200; 2006 SCC 15, refd to. [para. 20].

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

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. 21].

R. v. Chaisson (J.L.), [1995] 2 S.C.R. 1118; 183 N.R. 300; 163 N.B.R.(2d) 81; 419 A.P.R. 81, refd to. [para. 21].

R. v. Zinck (T.R.), [2003] 1 S.C.R. 41; 300 N.R. 201; 257 N.B.R.(2d) 1; 674 A.P.R. 1; 2003 SCC 6, refd to. [para. 21].

Cunningham v. Canada, [1993] 2 S.C.R. 143; 151 N.R. 161; 62 O.A.C. 243, refd to. [para. 22].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 39].

R. v. Van Rassel, [1990] 1 S.C.R. 225; 105 N.R. 103; 27 Q.A.C. 285, refd to. [para. 39].

R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 61 Sask.R. 105; 24 O.A.C. 321, refd to. [para. 40].

R. v. Shubley, [1990] 1 S.C.R. 3; 104 N.R. 81; 37 O.A.C. 63, refd to. [para. 40].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 50].

R. v. Wust (L.W.) et al., [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 61].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 64].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 75].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 76].

R. v. Généreux, [1992] 1 S.C.R. 259; 133 N.R. 241, refd to. [para. 76].

R. v. Pearson (E.), [1992] 3 S.C.R. 665; 144 N.R. 243; 52 Q.A.C. 1, refd to. [para. 76].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 85].

Statutes Noticed:

Abolition of Early Parole Act, S.C. 2011, c. 11, sect. 10(1) [para. 15].

Canadian Charter of Rights and Freedoms, 1982, sect. 11(h) [para. 32].

Corrections and Conditional Release Act, S.C. 1992, c. 20, sect. 119.1 [para. 86].

Authors and Works Noticed:

Canada, Correctional Service of Canada, Report of the Correctional Service of Canada Review Panel: A Roadmap to Strengthening Public Safety (2007), p. 110 [para. 6].

Canada, Hansard, House of Commons Debates, vol. 145, No. 131, 3rd Sess., 40th Parl. (Feb. 15, 2011), p. 8205 [para. 67].

Canada, House of Commons, Standing Committee on Justice and Human Rights: Sub-committee on Corrections and Conditional Release Act, A Work in Progress: The Corrections and Conditional Release Act (May 2000) (online: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=2537364&Language=E&Mode=1&Parl=36&Ses=2), para. 4.25 [para. 5].

Canadian Criminal Justice Association, Comments on "Directions for Reform": A Public Consultation Package on Sentencing, Corrections and Conditional Release (Dec. 7, 1990), p. 29 [para. 3].

Friedland, M.L., Legal Rights Under The Charter (1982), 24 Crim. L.Q. 430, pp. 435, 449 [para. 35].

Hogg, Peter W., Constitutional Law of Canada (5th Ed. 2007) (2012 Looseleaf Update, release 1), vol. 2, pp. 51-33 [para. 55]; 51-35 [para. 39].

Stuart, Don, Charter Justice in Canadian Criminal Law (5th Ed. 2010), pp. 464 [paras. 34, 37]; 467 [para. 35].

Counsel:

Cheryl D. Mitchell and Ginette Gobeil, for the appellant;

Eric Purtzki and Garth Barriere, for the respondents;

David Lepofsky and Mabel Lai, for the intervenor, Attorney General of Ontario;

Michael Jackson, Q.C., and Joana Thackeray, for the intervenor, British Columbia Civil Liberties Association.

Solicitors of Record:

Attorney General of Canada, Vancouver, B.C., and Montreal, Quebec, for the appellant;

Eric Purtzki and Garth Barriere, Vancouver, B.C., for the respondents;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, Attorney General of Ontario;

Heenan Blaikie, Vancouver, B.C., for the intervenor, British Columbia Civil Liberties Assocition: University of British Columbia.

This appeal was heard on October 15, 2013, before McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada.

On March 20, 2014, Wagner, J., delivered the following judgment in both official languages for the Court.