



COURT OF APPEAL FOR ONTARIO

CITATION:  Canada (Attorney General) v. Lalonde, 2016 ONCA
    923

DATE: 20161208

DOCKET: C61456

Doherty, Blair and Epstein JJ.A.

BETWEEN

Attorney General of Canada

Appellant

and

Rodney Lalonde

Respondent

Elizabeth Kikuchi, for the appellant

Brian A. Callender, for the respondent

Heard:  November 3, 2016

On appeal from the order of Justice Robert F. Scott of
    the Superior Court of Justice, dated November 26, 2015, with reasons reported
    at 2015 ONSC 6937.

Doherty J.A.:


I



overview

[1]

The respondent, Rodney Lalonde, pled guilty to and was convicted of one
    count of conspiracy to traffic in cocaine and one count of conspiracy to
    traffic in marihuana.  Both offences were alleged to have occurred between
    March 20, 2011 and July 7, 2011.  On November 5, 2013, Mr. Lalonde received
    five-year concurrent sentences on each charge.

[2]

Mr. Lalonde met the statutory eligibility criteria for accelerated
    parole under the
Corrections and Conditional Release Act
, S.C. 1992,
    c. 20 (
CCRA
). Under the
CCRAs
accelerated parole provisions,
    Mr. Lalonde would have been eligible for day parole in September 2014, 10
    months after he was sentenced.  Under the normal parole provisions, Mr. Lalonde
    was not eligible for day parole until January 2015 after serving 14 months of
    his sentence.

[3]

The Corrections authorities took the position that the
Abolition of
    Early Parole Act
, S.C. 2011, c. 11 (
AEPA
), enacted on March 28,
    2011, had repealed the provisions providing for accelerated parole.  Section 10
    of the
AEPA
made the repeal of the accelerated parole provisions retrospective
    and eliminated eligibility for accelerated parole for all offenders serving penitentiary
    sentences on or after March 28, 2011.  Mr. Lalonde began his five-year sentence
    in November 2013.

[4]

Section 10 clearly rendered Mr. Lalonde ineligible for accelerated
    parole.  However, in March 2014, in
Canada (Attorney General) v. Whaling
,
    2014 SCC 20, [2014] 1 S.C.R. 392, the Supreme Court struck down s. 10 as
    contrary to s. 11(h) of the
Charter
insofar as it purported to apply
    to persons who had been sentenced before the repeal of the accelerated parole
    provisions.

[5]

Whaling
did not have direct application to Mr. Lalonde as he
    had been sentenced after the repeal.  However, in 2015, this court held that the
    abolition of eligibility for accelerated parole amounted to an increase in
    punishment, making the application of the
AEPA

to persons who committed offences before
    the repeal of accelerated parole on March 28, 2011 contrary to s. 11(i) of the
Charter
:
Canada (Attorney General) v. Lewis
, 2015 ONCA 379, 126 O.R. (3d) 289,
    leave to appeal refused, [2015] S.C.C.A. No. 325; see also
Liang v. Canada
    (Attorney General)
, 2014 BCCA 190, 311 C.C.C. (3d) 159, leave to appeal refused,
    [2014] S.C.C.A. No. 298.

[6]

The holdings in
Liang
and
Lewis
created administrative
    difficulties for the Correctional authorities. Under the
CCRA
, parole
    eligibility is determined by reference to the date of sentence and not the date
    of the offence.  After
Lewis
and
Liang
, the Correctional
    authorities had to decide early parole eligibility based on the date of the
    offence for which the person was sentenced, rather than the date of sentence. 
    Unlike the date of sentence, which can be easily determined by reference to the
    warrant of committal, there can be uncertainty as to the date on which an
    offence was committed.  Some indictments allege offences that occur between
    dates that span weeks, months or even years.  A transcript of the trial
    proceedings may not assist in fixing the date of the offence, as often the date
    of the offence is irrelevant for trial purposes as long as the offence occurred
    within the timeframe of the indictment.

[7]

This case provides a good example of a situation in which the date on
    which an offence was committed may be unclear.  The indictment alleging the two
    conspiracy offences against Mr. Lalonde referred to a time period that
    straddled March 28, 2011, the date on which the accelerated parole provisions
    were repealed.  According to the affidavit material filed by the Attorney
    General of Canada, sentence managers had been instructed to treat persons whose
    offences were committed prior to March 28, 2011 and continued after that date as
    ineligible for accelerated parole.  Based on that policy, Mr. Lalonde was not
    eligible for early parole.

[8]

Mr. Lalonde moved for a declaration that he was eligible for accelerated
    parole.  He also brought an application for habeas corpus with certiorari in
    aid.  The application judge dealt only with the request for declaratory
    relief.  He held that he had jurisdiction to grant that relief (paras. 4-6),
    and that as the conspiracies were committed before the repeal of the
    accelerated parole provisions on March 28, 2011, Mr. Lalonde was eligible for
    accelerated parole.  The application judge made a declaration to that effect.

[9]

The Attorney General of Canada appeals from that order.
On the appeal, the Attorney General accepts that the application
    judge had the jurisdiction to grant the declaratory relief that he ordered. 
    The parties also agree that the appeal is moot in that Mr. Lalonde has been
    released on day parole.  The parties accept, however, that this is an
    appropriate case for the court to exercise its discretion in favour of hearing
    the moot appeal.  As pointed out in the material filed by the Attorney General,
    the determination of the applicability of the accelerated parole provisions,
    despite their repeal, continues to have relevance for about 200 offenders
    serving sentences in penitentiaries across Canada.  The parties agree that by
    addressing the merits of the appeal, the court can provide guidance to the
    Correctional authorities charged with the responsibility of determining parole
    eligibility dates.


II



when is a crime committed for the
    purposes of section 11(i) of the
charter
?

[10]

Section
    11(i) of the
Charter
provides:

11. Any person charged with an offence has the right



(i) if found guilty of the offence and if the punishment for
    the offence has been varied between the time of commission and the time of
    sentencing, to the benefit of the lesser punishment.

[11]

Section
    11(i) of the
Charter
, like s. 11(g) and s. 11(h), reflects a
    constitutional aversion to retrospective criminal legislation.  Retrospective
    criminal laws are viewed as unfair and undermining the rule of law because they
    effectively change the rules in the middle of the game to the detriment of
    the individual affected by those rules.  Fairness and respect for the rule of
    law require that a persons maximum exposure to punishment for a criminal act
    be fixed as of the time of commission of the criminal act for which he or she
    is to be punished:  see
R. v. K.R.J.
, 2016 SCC 31, 337 C.C.C. (3d)
    285, at paras. 20-27.

[12]

The
    abolition of eligibility for accelerated parole increased the punishment
    imposed on Mr. Lalonde:
Lewis
, at paras. 20-24.  Consequently, if Mr.
    Lalonde committed his crimes before the punishment for those crimes was varied
    on March 28, 2011 by the elimination of eligibility for accelerated parole, Mr.
    Lalonde was constitutionally entitled to the benefit of the lesser
    punishment, that is the parole scheme that included eligibility to be
    considered for early parole.

[13]

Counsel
    for the Attorney General submits that while the crime of conspiracy is committed
    when two or more persons enter into an agreement to commit a crime, intending
    to carry out that agreement, the crime continues until the criminal object is
    achieved or the agreement is frustrated, usually by the arrest of the
    co-conspirators:  see
R. v. J.F.
, 2013 SCC 12, [2013] 1 S.C.R. 565, at
    paras. 21, 44, 58; and
R. v. Bell
, [1983] 2 S.C.R. 471, at p. 488.  Counsel
    submits that as long as a conspiracy continues, it is not completed and should
    not be treated as committed for the purposes of s. 11(i).  On that approach,
    Mr. Lalonde continued to commit the offence of conspiracy beyond March 28, 2011
    to July 2011 when he and his fellow conspirators were arrested.  If the
    Attorney Generals interpretation is correct, there is no variation in the
    penalty for the offence between the time of commission and the time of
    sentencing.  Section 11(i) would have no application.

[14]

Counsel
    for Mr. Lalonde does not take issue with counsel for the Attorney Generals description
    of the crime of conspiracy as a continuing offence.  He submits, however, that
    conspiracy, like all crimes, is committed when the requisite
actus reus
and
mens rea
coexist.  Counsel submits that the Attorney Generals submissions
    fail to distinguish between the commission of a continuing offence and the completion
    or termination of that offence.  Counsel argues that on a plain reading, s.
    11(i) of the
Charter
is concerned with the commission and not the termination
    or completion of an offence.  Counsel argues that on the facts of this case,
    Mr. Lalonde entered into conspiracies to traffic in cocaine and marihuana
    before March 28, 2011.  He had therefore committed his crimes before that date even
    though he and his co-conspirators carried on efforts to achieve the objects of
    the conspiracies after March 28, 2011.

[15]

The
    distinction drawn by counsel for Mr. Lalonde between the point in time at which
    a crime is committed and the point at which that crime is completed or terminated
    is a valid one when the offence is a continuing offence.  The commission of a
    crime connotes culpability for that crime.  An offender is culpable in the
    sense that he or she is liable to be convicted for the offence when he or she
    has performed the required
actus reus
with the required
mens rea
. 
    Criminal culpability exists from that point forward whether the offence is a
    continuing one or not:  see
Bell
, at p. 488; and
Brodie v. The King
,
    [1936] S.C.R. 188, at p. 198.  Events subsequent to the point in time at which
    the
actus reus
and
mens rea
coexist cannot remove or negative
    culpability, although they may mitigate or aggravate punishment:  see
R. v.
    Kosh
, [1965] 1 C.C.C. 230, 44 C.R. 185, at p. 235 (Sask. C.A.); and
R.
    v. Roberts
, [1981] B.C.J. No. 1185, at para. 7 (C.A.).  For example, a
    person who enters into a criminal conspiracy, intending to carry it out, but
    abandons the conspiracy before the object is achieved or the agreement is
    terminated, remains criminally liable for the crime of conspiracy.  As
    explained by Taschereau J., in
R. v. OBrien
, [1954] S.C.R. 666, at p.
    669:

If a person, with one or several others, agrees to commit an
    unlawful act, and later, after having had the intention to carry it through,
    refuses to put the plan into effect, that person is nevertheless guilty,
    because all the ingredients of conspiracy can be found in the accuseds
    conduct.

[16]

If,
    as is clear on the authorities, culpability for criminal conspiracy attaches when
    a person enters into an agreement with one or more other persons to commit a
    criminal offence, intending to achieve that criminal object, it is illogical to
    say that the conspiracy is not committed until the unlawful object is achieved
    or the conspiracy terminated.  The continuing nature of the offence of
    conspiracy has significance for various issues.  However, the continuing nature
    of the crime has no impact on the determination of the point in time at which liability
    for the commission of the offence attaches.  If a person engages in the
    required
actus reus
with the specified
mens rea
,
that person commits the offence whether
    or not the offence is a continuing one.

[17]

Section
    11(i) fixes the time of commission of the offence as one of the two relevant
    points in time to be considered when applying the section.  I see nothing in
    the language of s. 11(i), or the purpose underlying the section, justifying a
    departure from the plain meaning of the phrase, the time of commission of the
    crime.  A crime is committed when culpability attaches.

[18]

Counsels
    research produced several decisions, most of them trial decisions, in which an
    indictment alleged an offence that straddled the date on which legislation came
    into force increasing or decreasing the relevant penalties.  None of the cases
    involved the
AEPA

or the
    crime of conspiracy.  In each case, the offender argued that s. 11(i) of the
    Charter entitled him or her to the lesser penalty.

[19]

Most
    of the trial decisions referred to by counsel support Mr. Lalondes position,
    although none contain any analysis of s. 11(i):  see

R. v. A.B.
, 2008 QCCQ 3538, at para. 56 (Crim.
    & Pen. Div.);
R. v. Handy
, 2012 CarswellOnt 13427, at paras.
    224-29 (Sup. Ct.);

R. v.
    Lewis
, 2014 ONSC 4188, at para. 14; and
R. v. Morier
, 2014 QCCQ
    1959, at paras. 15-17 (Crim. & Pen. Div.).

[20]

Counsel
    referred to two appellate decisions.  Both support the Attorney Generals position:
R. v. Pouliot
, 2006 QCCA 643, at para. 4; and
R. v. V.I.C.
, 2005
    SKCA 95, 269 Sask. R. 131, at para. 11.

[21]

In
Pouliot
, the accused was charged with keeping a
    common bawdy house over a lengthy period of time.  During that timeframe, the
    penalty for the offence was amended to increase the offenders exposure to
    forfeiture of property used in the offence.  The accused argued that he should
    be sentenced under the regime that existed at the commencement of the timeframe
    alleged in the indictment.  The Quebec Court of Appeal rejected that argument.  The
    court reasoned, at para. 4, that keeping a common bawdy house is a continuing
    offence, and that the accused continued to commit the offence well after the
    penalty increased.  The accused was thus not entitled to the benefit of the old
    property forfeiture regime.


[22]

In
V.I.C
.
, the accused was charged with a single
    count of sexual assault covering a 14-month timeframe.  The Crown alleged that
    he had assaulted his young cousin repeatedly during that timeframe.  During the
    timeframe covered by the indictment, the statutory scheme was changed to make
    the accused liable for a more serious penalty.  The accused argued that he should
    be sentenced under the law as it existed at the start of the timeframe set out
    in the indictment.  The Saskatchewan Court of Appeal disagreed, pointing out
    that acts that amounted to sexual assaults occurred before and after the
    enactment of the provision increasing the potential penalty.  The court held,
    at para. 11:

This was not a case of application of the law to an offence
    which occurred before the legislation came into effect, but of application of
    the law to an offence which was not complete, and therefore did not occur,
    until a date on which the legislation was in effect.

[23]

With
    respect, I cannot agree with
Pouliot
and
V.I.C.
While I
    accept that the offences in both cases continued beyond the enactment of the
    relevant legislation, I do not agree that the continuation of the offences
    meant that they were not committed before the enactment of the relevant
    legislation.  The accused in
Pouliot
was liable for the offence of
    keeping a common bawdy house as of the date on which the increased exposure to
    forfeiture came into effect.  Had he been charged on that date, he would have
    been convicted.

[24]

Similarly,
    the accused in
V.I.C.
committed acts of sexual assault before the
    enactment of the increased penalty.  He was culpable on the single count indictment
    preferred by the Crown from the moment he committed the earliest of the sexual
    assaults capable of supporting the charge as framed in the indictment.  Had the
    Crown proved only that one assault, the accused would have been convicted on
    the indictment as charged.  I do not agree that because the Crown chose to lay
    a single charge encompassing several discrete acts of sexual assault that
    occurred over several months, the offence for which the accused was convicted
    should be viewed as not complete, or as if it did not occur until the last
    of the sexual acts occurred.  The number of discrete acts capable of supporting
    liability for the offence as charged does not alter the fact that the
actus
    reus
and
mens rea
required to support a conviction coexisted as
    of the first act of sexual assault.

[25]

Having
    reviewed the cases, I remain satisfied that the words of s. 11(i) should be
    given their plain meaning.  Mr. Lalonde committed his crimes at the point in
    time when he agreed with one or more persons to traffic in cocaine or
    marihuana, intending to do so.


III



when did mr. lalonde commit his crimes?

[26]

As indicated above, the language in the indictment brought against Mr.
    Lalonde alleges dates that straddle March 28, 2011.  To determine whether Mr.
    Lalonde was eligible for early parole, the Correctional authorities had to
    determine whether he committed the conspiracies before that date.  The language
    of the indictment, standing alone, does not answer that question.

[27]

Whether
    Mr. Lalonde entered into the alleged conspiracies before March 28, 2011 was not
    in issue at the trial proceedings and, not surprisingly, was not addressed by
    trial counsel or the trial judge.  The facts relied on by the Crown to support
    Mr. Lalondes guilty pleas were offered to establish his guilt and not to
    establish the point in time at which he became culpable for the conspiracies.  Those
    facts do, however, assist in determining whether Mr. Lalonde entered into the
    conspiracies before March 28, 2011.

[28]

The
    facts relied on by the Crown to support the charge of conspiracy to traffic in
    cocaine included references to many acts allegedly done in furtherance of the conspiracy
    by Mr. Lalonde and others before March 28, 2011.  An act can only be done in furtherance
    of a conspiracy if the conspiracy exists when the act is performed.  On the
    facts put forward by the Crown, Mr. Lalonde had entered into a conspiracy to
    traffic in cocaine, intending to traffic in cocaine, well before March 28,
    2011.  On those facts, Mr. Lalonde committed the offence of conspiracy to
    traffic in cocaine before the
AEPA
repealed eligibility for early
    parole.  He was entitled to be considered for early parole.

[29]

The
    facts the Crown relied on in support of the plea on the charge of conspiracy to
    traffic in marihuana are less detailed than the facts relating to the cocaine
    conspiracy.  None of the acts said to be in furtherance of the conspiracy to
    traffic in marihuana occurred before March 28, 2011.  Nothing said by the Crown,
    however, suggests that the agreement to traffic in marihuana only came into
    existence after that date.  Having regard to the terms of the indictment, and
    the entirety of the facts relied on by the Crown as they relate to both
    conspiracies, it is a fair inference that Mr. Lalonde was a member of both
    conspiracies as of March 28, 2011 and was therefore entitled to be considered
    for early parole in respect of both offences.

[30]

In
    any event, it does not ultimately matter, for the purposes of determining Mr.
    Lalondes eligibility to be considered for early parole, whether the offence of
    conspiracy to traffic in marihuana was committed before or after March 28,
    2011.  Mr. Lalonde received two concurrent five-year sentences.  Pursuant to s.
    139(1) and s. 120.1(1)(b) of the
CCRA
, Mr. Lalonde was deemed to be serving
    a single five-year sentence with a single parole eligibility date.  If, as I
    would hold, Mr. Lalonde was eligible to be considered for early parole in
    relation to the conspiracy to traffic in cocaine conviction because the crime
    was committed before the repeal of the early parole provisions, his conviction
    at the same time for an offence committed after that date cannot, in my view,
    take away his constitutional right to be considered for early parole in respect
    of conspiracy to traffic in cocaine conviction.  A change in the rules
    governing Mr. Lalondes parole status as those rules relate to the conviction
    for conspiracy to traffic in cocaine after the date on which he committed that
    offence remains a violation of s. 11(i), even if a concurrent sentence imposed for
    an offence committed after the repeal of the early parole provisions would not
    attract the protection of s. 11(i).


IV



two additional comments

[31]

The
    reasons set out above are enough to dispose of the appeal in favour of Mr.
    Lalonde.  I will, however, in the hope of providing the Correctional
    authorities with some additional guidance, address two matters referred to in
    the affidavit of the senior Correctional Services manager filed on the
    application by the Attorney General of Canada.

[32]

In
    the affidavit, the affiant states:

[W]here offenders who receive one sentence for numerous
    offences which were committed both before and after the repeal of [accelerated
    parole], [those offenders] were not considered to be entitled to [accelerated
    parole].

[33]

The position taken by the Correctional authorities is
    premised on the provisions of the
CCRA
which treat prisoners as serving a single
sentence with a
    single parole eligibility date even though the prisoners were convicted of
    various offences at different times and received discrete sentences for each of
    those offences.  The sentences are effectively amalgamated into a single
    sentence with a single parole eligibility date:  see
CCRA
s. 120.1(2)(3), s. 120.2, s. 139(1)
. 
    For example, if an offender is convicted and sentenced to a two-year sentence
    in the penitentiary and six months later receives an additional two years
    consecutive for a different offence, the Correctional authorities treat the
    person as serving a single four-year sentence, running from the date of the
    first sentence.  They also fix a single parole eligibility date using the
    somewhat complicated provisions in s. 120.1 of the
CCRA
.

[34]

Essentially, for the
    reasons set out above in para. 30, I do not think that the Correctional
    authorities can ignore the date on which the offences occurred in determining
    eligibility for early parole.  If the offender was entitled to apply for early
    parole as of the date of the offence, s. 11(i) constitutionally guarantees that
    eligibility, regardless of whether the offender is subsequently convicted of
    other offences which post-date the repeal of the early parole provisions.  If,
    in the example set out above, the first offence for which the offender received
    a two-year sentence was committed before March 28, 2011, the offender was
    eligible to be considered for early parole.  His subsequent conviction and
    two-year sentence for an offence committed after March 28, 2011 would not
    eliminate his eligibility for early parole on the first conviction, even though
    the Correctional authorities treat the sentences as one for the purposes of
    calculating the total sentence being served and the parole eligibility date.

[35]

In
    holding that the offender would be entitled to the benefit of the early parole
    provisions despite the commission of offences after the repeal of those
    provisions, I do not mean to suggest that the commission of subsequent offences
    would not have relevance to the application of the early parole provisions.  In
    fact, depending on the nature and timing of the subsequent offences, the
    offender may no longer meet the criteria in the early parole provisions to even
    be considered for early parole.
[1]
The offender nonetheless would remain eligible for early parole in the sense
    that those provisions would apply to the offender because he was serving a
    sentence imposed, at least in part, in respect of an offence committed before
    the repeal of the early parole provisions.

[36]

My
    second observation arises from the same affidavit.  The affiant indicates that
    sentence managers are instructed that all offenders whose offence dates
    straddle March 28, 2011 are not considered eligible for accelerated parole. 
    While I can appreciate the value of a bright-line rule for administrative
    purposes, the offenders constitutional rights under s. 11(i) cannot be negated
    by a default rule that has no connection to the facts of the individual case.

[37]

The
    Correctional authorities charged with determining eligibility for early parole
    must do their best on the materials available to them to determine if an
    offence was committed before March 28, 2011.  As I understand it, sentence managers
    usually have the indictment, reasons for conviction (assuming it was not a jury
    trial), reasons for sentence, and the warrant of committal.  If a sentence manager
    is satisfied, based on that material, that the offence was committed, as
    defined in these reasons, before March 28, 2011, the sentence manager will treat
    the offender as eligible to be considered for accelerated parole, even if the
    offence continued after that date.

[38]

If
    a sentence manager is unable, on the material available to him or her, to
    decide whether the offence was committed before March 28, 2011, it is incumbent
    on the Correctional authorities to put the offender on notice that he or she
    may be eligible to be considered for early parole, depending on when the
    offence was committed, and that the Correctional authorities are unable to make
    that determination on the material available to them.  The offender should be
    given an opportunity, if he or she wishes to do so, to provide further
    information that may assist in determining the date of the offence.


V



conclusion

[39]

I would dismiss the appeal.

Released: DD  DEC 08 2016

Doherty J.A.

I sgree R.A. Blair
    J.A.

I agree Gloria
    Epstein J.A.





[1]

For example, under the early parole provisions, an offender
    who is serving an offence for which he was eligible for early parole and who
    while serving that sentence committed a further offence ceases to be eligible
    for early parole:
CCRA
s. 125(1.1).


