



COURT OF APPEAL FOR ONTARIO

CITATION: Canada (Attorney General) v. Lewis, 2015 ONCA 379

DATE: 20150529

DOCKET: C59665

Simmons, Juriansz and van Rensburg JJ.A.

BETWEEN

Attorney General of Canada

Appellant

and

Samantha Claire Lewis, Souphin Inlakhana, Juliet
    Ifeika, Rosa Mukandori, Nazma Murtaza, Debbie Craddock, Desiree Solleveld,
    Patricia Longley, Candace Branche and Carol Williams

Respondents

Michael Sims and Jim Kapches, for the appellant

Brian A.
    Callender, for the respondents

Heard: March 10, 2015

On appeal from the order of Justice P.B. Hambly of the
    Superior Court of Justice, dated October 3, 2014, with reasons reported at 2014
    ONSC 6394.

Juriansz J.A.:

[1]

This appeal raises a single question of law: are offenders who committed
    offences before, but were convicted and sentenced after, the enactment of the
Abolition
    of Early Parole Act
, S.C. 2011, c. 11 (
AEPA
) entitled to the accelerated
    parole review (APR) regime previously in place under the
Corrections and
    Conditional Release Act
, S.C. 1992, c. 20 (
CCRA
) by virtue of
    s. 11(i) of the
Charter
?

[2]

Prior to March 28, 2011, ss. 119.1 and 125-126.1 of the
CCRA
provided
    for APR for certain non-violent offenders serving a first sentence of
    imprisonment in a federal penitentiary. Under the APR regime such offenders were
    presumptively entitled to day parole after serving the greater of six months or
    one-sixth of their sentence. Under the standard parole provisions of the
CCRA
,
    an offender sentenced to the penitentiary would be eligible for day parole six
    months before the full parole eligibility date. The APR regime also was less
    demanding procedurally than the standard parole procedure. These differences do
    not need to be discussed separately as the respondents application claimed
    that the denial of eligibility to the entire APR regime infringed their s.
    11(i) rights, and the appeal was argued on that basis.

[3]

The provisions of the
CCRA
that provided for APR were repealed
    with the coming into force of the
AEPA
on March 28, 2011
,
effectively

abolishing the accelerated parole regime. Under the
CCRA
as it
    now reads, the standard parole provisions apply to all offenders sentenced to a
    penitentiary.

[4]

Section 10(1) of the
AEPA
made the abolition of APR apply retrospectively.
    Section 10(1) provides:

Subject to subsection (2), the accelerated parole
    review process set out in sections 125 to 126.1 of the
Corrections and Conditional
    Release Act
, as those sections read on the day before the day
    on which section 5 comes into force, does not apply, as of that day, to
    offenders who were sentenced, committed or transferred to penitentiary, whether
    the sentencing, committal or transfer occurs before, on or after the day of
    that coming into force.

Offenders are not eligible for the APR process even if
    they were sentenced, committed or transferred to penitentiary before the
AEPA
came into force.

[5]

The respondents in this

appeal are ten women who are serving
    sentences at the Grand Valley Institution, a federal penitentiary located in
    the City of Kitchener. They are all non-violent offenders sentenced to a first
    penitentiary term.

[6]

With one exception, the respondents committed their offences before the
AEPA
came into effect and were sentenced afterwards. One respondent, Debbie
    Craddock, was sentenced for offences committed before and after the repeal of
    the APR provisions.

[7]

After the enactment of the
AEPA
, the respondents, relying on s.
    11(i) of the
Charter
, brought an application in the Superior Court for
    a declaration that they are eligible for APR at one-sixth of their sentences.

[8]

Section 11(i) guarantees that any person charged with an offence has the
    right 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.

[9]

Thus, the question before the application judge was whether the
    respondents punishment was varied by the abolition of the APR process. This is
    a pure question of law.

[10]

The
    application judge answered this question in the affirmative. For the reasons
    that follow, I would agree with this conclusion and dismiss the appeal.

A.

Discussion

Section 10(1) of the
AEPA
and Section 11(i) of the
Charter

[11]

The
    application judges conclusion that the respondents punishment was varied by
    the abolition of the APR process was dependent upon his finding that the denial
    of day parole was punishment within the meaning of s. 11(i) of the
Charter
.
    It followed that the respondents punishment was increased between the date of
    their offences and the date they were sentenced. Consequently, by virtue of s.
    11(i), they were entitled to the benefit of the lesser punishment.

[12]

In
    arriving at this conclusion, the application judge relied on the Supreme
    Courts decision in
Canada (Attorney General) v. Whaling
, 2014
    SCC 20, [2014] 1 S.C.R. 392, at para. 60, for the definition of punishment as
    the retrospective frustration of an expectation of liberty.

[13]

As
    in this case,
Whaling
considered the constitutionality of s. 10(1) of
    the
AEPA.
However, the situation of the offenders in
Whaling
was different, and the case involved a different section of the
Charter
.
    In
Whaling,
the offenders had already been sentenced and were serving
    their sentences in the penitentiary on the date the
AEPA
came into
    effect. The Supreme Court concluded that the offenders were entitled to APR
    because s. 11(h) of the
Charter
guaranteed that a person found guilty
    and punished for an offence will not be punished for that offence again. The
    court found that s. 10(1) of the
AEPA
had the effect of punishing the offenders
    a second time: by retrospectively imposing a delay in day parole eligibility in
    relation to offences for which they had already been tried and punished, s.
    10(1) effectively extended their incarceration without regard to individual
    circumstances: at para. 71.

[14]

Before
    this court, the Attorney General submits that the application judge erred in
    his application of
Whaling
to the case at bar.

[15]

The
    Attorney General contends that the leading authority on the meaning of
    punishment is the Supreme Courts decision in
R. v. Rodgers,
2006
    SCC 15, [2006] 1 S.C.R. 554. In
Rodgers
, the Supreme Court stated that
    a consequence of conviction will constitute a punishment when it forms part
    of the arsenal of sanctions to which an accused may be liable in respect of a
    particular offence and the sanction is one imposed in furtherance of the
    purpose and principles of sentencing: at para. 63.

[16]

The
    Attorney General notes that criminal law distinguishes between sentencing and
    parole:
Whaling,
at para. 68. Sentencing courts sanction past criminal
    acts; whereas the correctional system prepares offenders for reintegration into
    the community. According to the Attorney General, the applications judge conflated
Criminal Code
parole eligibility with
CCRA
parole eligibility,
    thereby ignoring the distinction between sentencing and parole.

[17]

The
    Attorney General also points out that in
Whaling,
the Supreme Court
    said, Changes to the conditions of a sentence, such as eligibility for parole,
    do not alter the sentence itself: at para. 1. The changes to parole
    eligibility addressed in
Whaling
became punitive only because they applied
    retrospectively to offenders who had already been sentenced.

[18]

The
    Attorney General submits that the date of sentencing is the reference point for
    determining whether a change to parole eligibility is punitive. The Attorney
    General relies on Wagner J.s statement at para. 58 of
Whaling
that an
    offender has an expectation of liberty that is based on the parole system in
    place at the time of his or her sentencing, and that thwarting that expectation
    may engage a constitutionally protected liberty interest.

[19]

Based
    on these selective passages from
Whaling
and
Rodgers
, the Attorney
    General submits that it is the retrospective frustration of the expectation of
    liberty at the time of sentencing that will constitute punishment for the
    purposes of s. 11(i) of the C
harter
.

[20]

These
    arguments were considered and rejected by the British Columbia Court of Appeal
    in
Liang v. Canada (Attorney General)
, 2014 BCCA 190, 311 C.C.C. (3d)
    159, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 298. As in this
    case
,
the respondents in
Liang
committed offences before, but
    were sentenced after, the
AEPA
came into force.

[21]

In
    my view,
Liang
is both persuasive and authoritative. A.W. MacKenzie
    J.A., writing for the court, reasoned that the settled expectation of liberty
    referred to in
Whaling
was not a psychological standard directed at
    vindicating the subjective expectation of offenders, but instead, an objective
    standard to determine whether the punishment has in fact increased: at para.
    19. Viewed from that perspective, he concluded that extended incarceration was
    an objectively ascertainable effect of the changes to the parole system
    between the time of the offences and the time of sentencing: at para. 23.

[22]

MacKenzie
    J.A. found that the logic of
Whaling
could be applied to cases where
    the offence was committed before, but the offender was sentenced after, the
AEPA
came into force. He explains at para. 15:

It is difficult to avoid a straightforward application of the
    logic of
Whaling
to this case, along the following lines. The offences
    at issue here were committed in 2009 and 2010; the APR system was abolished in
    2011; the offenders were sentenced in 2012 and 2013. Thus, at the time of the
    commission of the offences in question, the law permitted offenders the benefit
    of the APR system; at the time of sentencing, the APR system was no longer
    available. If the abolition of APR constitutes "punishment", then the
    punishment for the offence has been "varied between the time of commission
    and the time of sentencing", so the offenders are constitutionally
    entitled to the "benefit of the lesser punishment" (i.e., the parole
    system in place before the changes, including APR). The Supreme Court of Canada
    in
Whaling
found the abolition of the APR system constituted
    "punishment" because it substantially increased the risk of
    additional incarceration. The same legislation would have the same effect in
    this case. Therefore, the offenders are entitled to the "lesser"
    punishment; that is, to APR.

[23]

The
    Supreme Court refused the Attorney Generals application for leave to appeal on
    January 29, 2015.

[24]

The
    Attorney General submits that
Liang
was wrongly decided, and the
    Supreme Courts refusal of the application for leave to appeal should not be
    regarded as approval of the British Columbia Court of Appeals decision. The
    effect of the Supreme Courts refusal of leave to appeal aside, the analysis in
Liang
, which is based on a close and careful reading of
Whaling
,

is persuasive and in my view correct. I agree with the British Columbia
    Court of Appeal that the
AEPA
infringes the s. 11(i) rights of non-violent
    offenders serving a first sentence of imprisonment in a federal penitentiary. The
    changes to the parole system have the effect of appreciably increasing the
    amount of time such offenders 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 is a variation in punishment within
    the meaning of s. 11(i).

[25]

Moreover,
    there is good reason to follow the decision of the British Columbia Court of
    Appeal. The merit of the uniform application of federal statutes in all
    provinces is obvious. In addition, this court is aware, based on its appeal
    management, that federal inmates convicted of crimes in Ontario are being
    housed in federal facilities across the country, including British Columbia.
    This adds to the importance that there be a uniform approach across the
    country. The Supreme Court is no doubt aware of this.

[26]

The
    Attorney Generals final argument was to point out a wrinkle in the case of
    Debbie Craddock, one of the ten applicants before the application judge. Unlike
    the other nine applicants who were sentenced after the repeal of the APR
    provisions for offences committed before their repeal, Craddock was sentenced
    to two years, ten months, 13 days imprisonment for offences committed both
    before and after the abolition of APR regime. The application judge granted her
    eligibility for APR along with the other applicants.

[27]

By
    happenstance, just two days after the application judges decision, the Parole
    Board granted Ms. Craddock release under the standard parole regime. Thus, the
    appeal as it relates to Ms. Craddock is moot. However, the Attorney General
    submits her case illustrates why focusing on the date the offence was committed
    cannot be the correct approach to determining whether the variation in parole
    eligibility is punitive. The Attorney General says that if the application judges
    decision had been carried out, Ms. Craddock would have received accelerated parole
    for offences committed after repeal of the APR provisions, and this cannot be a
    correct result.

[28]

I
    do not find this argument persuasive. The case of Ms. Craddock illustrates that
    complexities may arise, but does not undermine the analysis in
Liang
.
    The cases of individuals sentenced for some offences committed before the
    repeal of the APR regime and other offences committed after its repeal will
    have to be considered on their own facts and in light of the form of the
    sentence or sentences imposed. The primary sentencing documents relating to Ms.
    Craddock are not in the record, and since her case is moot, it is not necessary
    to deal with that complexity in this decision.

[29]

The
    decision of this court in
R. v. R. S.
, 2015 ONCA 291 was released
    after this appeal was argued while it was under reserve. The parties have not
    had the opportunity to address it, and I confine myself to observing that its
    reading of
Whaling
and
Liang
is consistent with mine in this
    case.

[30]

I
    conclude that the
AEPA
infringes the s. 11(i) rights of offenders who
    committed offences before but were convicted and sentenced after its enactment.
    I turn to whether the infringement is saved by s. 1 of the Charter.

Section 1 of the
Charter

[31]

The
    government must establish that the retrospective application of the
AEPA
serves a pressing and substantial government objective, is rationally connected
    to that objective, minimally impairs the
Charter
right, and that its
    salutary benefits outweigh its detrimental effects.

[32]

There
    is a transition phase whenever statutory provisions are repealed and replaced
    by others. The government has offered no reason why the transition phase
    resulting from the repeal of APR had to be made retrospective. I agree with the
    following analysis of the application judge, at para. 16:

In
Whaling
the Supreme Court of Canada in the judgment
    of Justice Wagner held that the Crown had met the first 2 requirements but had
    failed to establish the minimal impairment test. It held that the government
    sentencing objectives could have been met by specifying that the abolishment of
    APR applied only to offenders who were sentenced after March 28, 2011 when the
    AEPA came into effect. This would have avoided a conflict with s. 11(h) of the
Charter
.
    I agree with the opinion expressed by [Justice MacKenzie] for the BCCA that the
    federal government could have accomplished its sentencing objectives and
    avoided a conflict with both s. 11(h) and (i) by providing that the AEPA
    applied only to offenses committed after it came into effect on March 28, 2011.
    The Crown has failed to meet the minimal impairment test for s. 1 of the
Charter
to apply.

B.

Conclusion

[33]

I
    would conclude that offenders who committed offences before but were convicted
    and sentenced after the enactment of the
AEPA
are entitled to the APR regime
    previously in place by virtue of s. 11(i) of the
Charter
. I would
    dismiss this appeal and uphold the decision of the application judge.

Released: May 29, 2015

(PR)

R.G. Juriansz J.A.

I agree Janet
    Simmons J.A.

I agree K. van
    Rensburg J.A.


