



COURT OF APPEAL FOR ONTARIO

CITATION: Frost v. Canada (Attorney General), 2015 ONCA 386

DATE: 20150529

DOCKET: C59684

Simmons, Juriansz and van Rensburg JJ.A.

BETWEEN

James Frost

Appellant

and

Attorney General of Canada

Respondent

Brian A. Callender, for the appellant

Michael Sims and Jim Kapches, for the respondent

Heard: March 10, 2015

On appeal from the order of Justice Robert J. MacKinnon of the
    Superior Court of Justice, dated September 17, 2014, with reasons reported at
    2014 ONSC 5666.

Juriansz J.A.:

[1]

The appellant is currently an inmate at Beaver Creek Institution, a
    federal correctional facility. He was arrested and charged in 2003 with
    conspiracy to import cocaine. He was first convicted in 2007 and sentenced in
    2008, but successfully appealed both conviction and sentence in 2010. In 2011,
    after a retrial, the appellant was once again convicted and sentenced to
    penitentiary.

[2]

On March 28, 2011, seven months before the appellant was convicted and
    sentenced a second time, the
Abolition of Early Parole Act,
S.C. 2011,
    c. 11 (
AEPA
) came into force and effect. The
AEPA
abolished
    the accelerated parole review (APR) regime that was previously available
    under the
Corrections and Conditional Release Act
, S.C. 1992, c. 20 (
CCRA
).
    As per s. 10(1) of the
AEPA
, APR is no longer available to any
    offender sentenced to penitentiary before, on or after March 28, 2011, the date
    the
AEPA
came into effect.

[3]

The appellant appeals from the dismissal of his application for
habeas
    corpus.
In that application, he sought a declaration that, by virtue of s.
    11(i) of the
Charter,
he is entitled to the APR regime in place at the
    time he committed the offences for which he was sentenced to penitentiary
.
He says that the application judge erred in finding that the application of the
AEPA
to his case was prospective and did not result in a variation of
    punishment within the meaning of s. 11(i) of the
Charter.


[4]

This appeal was heard together with
Canada (Attorney General) v.
    Lewis
, 2015 ONCA 379. Like the appellant, the respondents in
Lewis
were
    non-violent offenders who were convicted and sentenced to their first
    penitentiary term after the enactment of the
AEPA
for offences
    committed before its enactment. In
Lewis
this court found that the
    abolition of APR had the effect of appreciably increasing the amount of time
    the respondents would be incarcerated in comparison to what they would have
    expected under the regime in place at the time they committed their offences.
    This increase in incarceration was a variation in punishment within the meaning
    of s. 11(i) of the
Charter
and was not justified under s. 1 of the
Charter.


[5]

Based on the reasoning in
Lewis,
I would allow the appellants
    appeal and order that the appellant is eligible for APR in accordance entitled
    to the APR regime previously in place.

Released: May 29, 2015

(PR)

R.G. Juriansz J.A.

I agree Janet
    Simmons J.A.

I agree K. van
    Rensburg J.A.


