R v Trohan, 2016 ABQB 1

Court of Queen ’ s Bench of Alberta Citation: R v Trohan, 2016 ABQB 1 Date: 20160105 Docket: 951041689Q1 Registry: Calgary Between: Wilfred Oscar Trohan Applicant - and - Her Majesty the Queen Respondent _______________________________________________________ Reasons for Decision of the Honourable Chief Justice Neil Wittmann _______________________________________________________ Introduction [ 1 ] The 1997 and 2011 amendments to the so called “faint hope” provisions of the Criminal Code of Canada , have had the

outward appearance of making hope fainter for offenders. The original provisions in force from 1976-1997, allowed an offender an audience, before a jury, to determine whether the period of parole ineligibility applying to an offender could be reduced, provided the offender had served 15 years of his sentence. The 1997 amendments provided that a Chief Justice or his or her designate would hear an application from an offender who had served 15 years, based on written materials and would apply a screening step in order to determine whether the case should go forward to a jury.

That judge had the ability to refuse to allow it to go forward. That decision could be appealed. [ 2 ] The screening standard to be applied has changed over the years. Today, it is whether the offender has shown, on a balance of probabilities, that there is a substantial likelihood that the application will succeed.

Prior to that amendment, the screening standard was, after it was first introduced in 1997, whether the offender has shown on a balance of probabilities, that there is a reasonable prospect that the application will succeed. [ 3 ] The 2011 amendments also introduced time limits within which an offender could make an application for judicial review, generally within 90 days after the day on which an offender had served 15 years of their sentence if 15 years had not been served by December 2 nd , 2011 or within 90 days after December 2 nd , 2011, if the offender had already served 15 years prior to December 2 nd , 2011.

Failure to apply within the 90 day window would result in the offender being barred for a further 5 year period if no application had been made. Similar time limit windows applied where a person had made a previous application and been denied. [ 4 ] This application does not concern the evolution of the screening process or the standard, nor an analysis of what the standard means. This application concerns when Wilfred Oscar Trohan (“the offender”), may validly apply for judicial review under the faint hope provisions of the Criminal Code in light of the time limits referred to.

Background Facts [ 5 ] The offender filed an affidavit in support of his application for an Order that he be allowed to apply for judicial review. The offender was arrested on July 31, 1995 by the Calgary Police Service. He was charged with the first degree murder of his common-law partner and found guilty of that offence by a jury on November 22 nd , 1996. He was sentenced to life imprisonment without eligibility for parole for a period of 25 years.

An appeal from his conviction was dismissed November 6 th , 1998. [ 6 ] On July 31 st , 2010, the offender, having served 15 years of his sentence, became eligible to apply for judicial review of his parole ineligibility.

He was never informed by anyone at Correctional Service Canada (“CSC”) of his ability to make an application at that time, nor at all. [ 7 ] The offender’s affidavit discloses that a number of steps were supposed to have been taken by CSC with respect to giving the offender notice of his right to apply for judicial review of his parole ineligibility. [ 8 ] A Commissioner’s Directive #710-5, from CSC, in effect by November or December 2013, stated its purpose was “to establish standards and procedures for judicial review of parole ineligibility applications.” It contained responsibilities, procedures and inquiries.

The responsibilities of the “Institutional Head” included assigning a staff member to complete a Parole Eligibility Report for the purpose of judicial review and sending a copy of the inmate’s application for judicial review to the Regional Office of Justice Canada and CSC Legal Services. [ 9 ] Also, a procedure in the Directive stated that 12 months prior to an inmate’s judicial review eligibility date, the assigned parole officer would meet with the inmate to discuss whether the inmate intends to submit an application and tell the inmate that it is his responsibility to engage legal counsel.

The parole officer was, by the Directive, required to inform the inmate of a number of things as follows: a. An application must be submitted within 90 days after the day in which the inmate has served 15 years of his / her sentence; b. If an application is unsuccessful, but a determination is made that an inmate could reapply, he/she must do so within 90 days of the 5 year anniversary of the last application or the date set by the judge or jury (which would be no earlier than 5 years); c.

If the inmate does not make an application within the 90 day period, the inmate may only apply within 90 days after the day on which he / she has served a further 5 years of his / her sentence; d. The 90 day time limit to make an application may be extended by the appropriate Chief Justice, to a maximum of 180 days if there are circumstances beyond the inmate’s control. [ 10 ] An application for judicial review was filed by the offender on June 5 th , 2014. This was his first and only application.

On June 9 th , 2014, counsel for the offender and the Crown appeared before me and I granted an Order pursuant to s.745.6 of the Criminal Code to have CSC prepare a report and assemble records so that the offender could advance to a judicial screening review to decide whether his application would be heard by a jury. [ 11 ] Neither counsel referred to time limits restricting or pertaining to the offender’s right to apply for a judicial review at the June 9 th , 2014 hearing. [ 12 ] On October 7 th , 2014, the Federal Department of Justice sent a letter to the Court on behalf of CSC raising a concern that the offender was not eligible to make a faint hope application because of the time limits stipulated in the Criminal Code .

The Department of Justice noted that the offender missed his deadline to apply, resulting in his inability to make another application until March 1 st , 2017, or almost until he had served 22 years of his sentence. On January 14 th , 2015, this Court stayed the June 9 th , 2014 Order for the

preparation of materials for use in the offender’s faint hope application, but indicated to the offender’s counsel that he could make an application with respect to the applicability of the time limits in the Criminal Code which apparently supported the position of CSC. [ 13 ] On October 26 th , 2015, the offender applied to be entitled to bring the application for judicial review and a hearing was held November 24 th , 2015, to determine whether the offender met the time requirements in the Criminal Code . As of November 24 th , 2015, the offender had served 20 years 4 months of his sentence.

Although the Department of Justice was notified of the hearing, no representative from CSC or Justice Canada attended, or otherwise applied for status at the hearing.

The Legislation [ 14 ] Prior to December 2 nd , 2011, an offender convicted of murder and sentenced to imprisonment for life without eligibility for parole until more than 15 years of the sentence had been served could apply under the faint hope provisions to have the period of parole ineligibility reviewed, provided the offender had served 15 years of the sentence. [ 15 ] In 1997, an amendment provided that a person who had been convicted of more than one murder could not make a faint hope application.

On December 2 nd , 2011, the following provisions came into force and changed the entitlement to apply for judicial review for parole ineligibility by imposing times when applications can be entertained by the Court. 745.6

(1) Application for judicial review - Subject to subsections (2) to (2.6), a person may apply, in writing, to the appropriate Chief Justice in the province in which their conviction took place for a reduction in the number of years of imprisonment without eligibility for parole if the person (

a) has been convicted of murder or high treason; (a.1) committed the murder or high treason before the day on which this paragraph comes into force; (

b) has been sentenced to imprisonment for life without eligibility for parole until more than fifteen years of their sentence has been served; and (

c) has served at least fifteen years of their sentence.

(2) Exception – multiple murderers - A person who has been convicted of more than one murder may not make an application under subsection (1), whether or not proceedings were commenced in respect of any of the murders before another murder was committed.

(2.1) Less than 15 years of sentence served - A person who is convicted of murder or high treason and who has served less than 15 years of their sentence on the day on which this subsection comes into force may, within 90 days after the day on which they have served 15 years of their sentence, make an application under subsection (1).

(2.2) At least 15 years of sentence served - A person who is convicted of murder or high treason and who has served at least 15 years of their sentence on the day on which this subsection comes into force may make an application under subsection (1) within 90 days after (

a) the end of five years after the day on which the person was the subject of a determination made under subsection 745.61(4) or a determination or conclusion to which subsection 745.63(8) applies; or (

b) the day on which this subsection comes into force, if the person has not made an application under subsection (1).

(2.3) Non-application of subsection (2.2) - Subsection (2.2) has no effect on a determination or decision made under subsection 745.61(3) or (5) or 745.63(3), (5) or (6) as it read immediately before the day on which this subsection comes into force. A person in respect of whom a time is set under paragraph 745.61(3)(

a) or 745.63(6)(

a) as it read immediately before that day may make an application under subsection (1) within 90 days after the end of that time.

(2.4) Further five-year period if no application made - If the person does not make an application in accordance with subsection (2.1), (2.2) or (2.3), as the case may be, they may make an application within 90 days after the day on which they have served a further five years of their sentence following the 90-day period referred to in that subsection, as the case may be.

(2.5) Subsequent applications - A person who makes an application in accordance with subsection (2.1), (2.2) or (2.3), as the case may be, may make another application under subsection (1) within 90 days after (

a) the end of the time set under paragraph 745.61(3)(

a) or 745.63(6)(a), if a time is set under that paragraph; or (

b) the end of five years after the day on which the person is the subject of a determination made under subsection 745.61(4) or a determination or conclusion to which subsection 745.63(8) applies, if the person is the subject of such a determination or conclusion.

(2.6) Subsequent applications - A person who had made an application under subsection (1) as it r e ad immediately before the day on which this subsection comes into force, whose application was finally disposed of on or after that day and who has then made a subsequent application may make a further application in accordance with subsection (2.5), if either paragraph (2.5)(

a) or (

b) is applicable.

(2.7) The 90-day time limits for the making of any application referred to in subsections (2.1) to (2.5) may be extended by the appropriate Chief Justice, or his or her designate, to a maximum of 180 days if the person, due to circumstances beyond their control, is

unable to make an application within the 90-day time limit.

(2.8) If a person convicted of murder does not make an application under subsection (1) within the maximum time period allowedby this section, the Commissioner of Correctional Service Canada, or his or her designate, shall immediately notify in writing a parent,child, spouse or common-law partner of the victim that the convicted person did not make an application. If it is not possible to notifyone of the aforementioned relatives, then the notification shall be given to another relative of the victim.

The notification shall specifythe next date on which the convicted person will be eligible to make an application under subsection (1).

Issues [16] The offender’s counsel first put the following question before the Court: Whether the December 2nd, 2011 amendment to s.745.6 of the Criminal Code requiring offenders who have already served 15 years oftheir sentence to apply within 90 days of the time that the amendment came into force offended the Charter of Rights and Freedoms, s.7, 11(h), and 11(i), and if so should the Court grant a remedy under s.24(1)? [17] The Judicature Act, RSA 2000, c.J-2 in s.24(1) states that if in a proceeding, the constitutional validity of an enactment of theParliament of Canada is questioned, the enactment shall not be held to be invalid unless 14 days written notice has been given to theAttorney General of Canada and the Minister of Justice and Solicitor General of Alberta. [18] No notice was given in this case and the Crown argued that the relief asked for cannot be given on the grounds alleged,relying on lack of compliance with s.24 of the Judicature Act.

In opposing the offender’s application for constitutional relief on the basisthat the validity of the enactment ought not to be entertained by the Court, the Crown conceded that the offender’s s.7 Charter rightswere violated, relying on the affidavit evidence of the offender. During oral argument, the offender’s counsel conceded that proper noticepursuant to the Judicature Act was not given and that logistically there would be no point in going through that process because by thetime it was concluded, the offender would be eligible, on the basis of the impugned legislation, to apply for judicial review.

Thus, theissue that was joined and conceded by the Crown was the violation of the offender’s s.7 Charter rights and the appropriate remedy to begranted. Authorities [19] The authorities relied on by the offender are: R v. Jenkins, 2014 ONSC 3223 ; R v Dell, 2015 ONSC 1570 ;R v Simmonds, 2015 BCSC 737 ; R v Rowe, 2015 ONSC 2576 ; R v Whaling, 2014 SCC 20 .

The authoritiesrelied on by the Crown are: R v Shropshire, (SCC), [1995] 4 SCR 227; R v Bowen, 1990 ABCA 317, 1990 CarswellAlta 168; Liang v Canada, 2014 BCCA 190 2014 CarswellBC 1353; R v Rodgers, 2006 SCC 15 2006 CarswellOnt 2498; R v Gangl,2011 ABCA 357, 2011 CarswellAlta 2059; R v Abderdeen, 2006 ABCA 164, 2006 CarswellAlta 600; Cunningham v Canada, (SCC), 1993 CarswellOnt

Section 7 of the Charter of Rights and Freedoms [20]

Section 7 of the Charter of Rights and Freedoms states as follows: 7. Life, liberty and security of the person - Everyone has the right to life, liberty and security of the person and the right not to bedeprived thereof except in accordance with the principles of fundamental justice. [21] Central to the position of the parties that the offender’s s.7 rights have been breached is the concept that an increase in paroleineligibility is an increase in punishment.

Put another way, the Crown has conceded that delaying parole ineligibility is part of thepunishment and sentencing regime and in support of this proposition cites Shropshire at paragraphs 21 and 23. [22] Delaying parole eligibility in respect of those who have already been sentenced and doing it retrospectively constitutespunishment: Whaling, at paragraph 62. Of particular importance is the statement in Whaling, in part of paragraph 58 as follows: ...

The Court recognized that an offender has an expectation of liberty that is based on the parole system in place at the time of his or hersentencing, and that thwarting that expectation may engage a constitutionally protected liberty interest. Changes to the parole system thatadd retrospectively to the offender’s incarceration may violate s. 7, even if they do not affect the sentence itself. [23] And further, at paragraph 60, Wagner J. in Whaling states in part that it is the retrospective frustration of an expectation ofliberty that constitutes punishment. Whaling was a case that engaged s.11(

h) of the Charter and the Court declined to rule on s.7 asunnecessary because it was more general than s.11(h).

But s.7 is engaged in the circumstances here because the principles offundamental justice dictate that notice to the offender be given of his right to apply for judicial review and the evidence conclusivelyshows that no such notice was given. [24] In Rodgers, the constitutionality of s.487.055 of the Criminal Code was challenged, among other grounds, on the basis that itdenied the fundamental procedural fairness to the offender, in that it authorized the collection of DNA samples from three classes ofpreviously convicted and sentenced offenders.

Although the Court proceeded on s.8 of the Charter, that is, the right to be secure againstunreasonable search or seizure, the Court did concern itself with what is fair in the context. What developed became known as theRodgers test. [25] The Rodgers court stated at paragraph 47: “... the constitutional norm, rather is procedural fairness. Notice and participation

may or may not be required to meet this norm – it is well settled that what is fair depends entirely on the context”. Charron J., speaking for the Court said at paragraph 63: ... as a general rule, it seems to me that the consequence 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. [ 26 ] In the same vein, Pomerance J. in Jenkins , stated that Whaling advanced the concept of punishment in three respects.

First, by recognizing the distinction between a sentence and the conditions under which it is served, noting that a change to the parole system in Whaling did not affect or change the offender’s original sentence but by altering parole status, subsequent legislation did change the manner in which the sentence was to be served: paragraph 58. [ 27 ] The second significance of Whaling , according to Pomerance J., is that a retrospective change to conditions in the sentence can amount to punishment even though the sentence itself is not affected and no new or separate proceedings have been instituted: paragraph 59. [ 28 ] The third and arguably the most importance aspect of Whaling is the creation of an analytical model to determine when respective changes to the conditions of a sentence will increase punishment.

Pomerance J. referred to Wagner J.’s statement that a dominant consideration is the offender’s expectation of liberty at the time the sentence was imposed: paragraph 60. Background to the December 2 nd , 2011 Amendments [ 29 ] Before turning to the application of the above principles to the facts and circumstances, it is important to review, on a purposive basis, the reasons for the December 2 nd , 2011 amendments.

As noted in the written materials of the applicant and accepted by the Crown, excerpts from the Standing Committee on Justice and Human Rights, NUMBER 035, 3 rd Session, 40 th Parliament, Tuesday November 16 th , 2010, indicate that Don Head, speaking on behalf of CSC said: We start the process 12 months before the eligibility date in terms of engaging with the offender. At that time, we engage them in discussion as to whether they’re going to make an application for that first phase of screening. And if they indicate to us that they are, then, as I mentioned, we advise them to seek legal counsel.

We advise them to make the proper request through access to information to get their file documentation. Then we’ll start to work on the judicial review

summary report, which takes us about six to eight weeks of parole officer time to complete. [ 30 ] According to an excerpt from the Standing Committee on Legal and Constitutional Affairs addressed by the Honorable Robert Nicholson, then Minister of Justice and Attorney General of Canada on June 9 th , 2010, he stated as follows: ... the second thing Bill S-6 does will be to tighten up two of the three stages in the current faint hope application procedure with the goal of restricting access for these offenders [currently in the system].

Honourable Senators, the rationale for these amendments is straightforward: To restore truth in sentencing, to lessen the suffering of the families and loved ones of murder victims; and to protect society by keeping potentially dangerous criminals in custody for longer periods of time (Proceedings of Standing Committee on Justice and Legal Affairs, Bill S-6,

An Act to amend the Criminal Code and another act , Issue 9 (June 9, 2010)). [ 31 ] From these excerpts, two things emerge. First, the purpose of the 5 year, 90 day provisions in the December 2 nd , 2011 amendments was to spare the families of victims from the anguish of repeated faint hope applications and the potential uncertainty created. Secondly, assurances were given by CSC that ample notice would be given to offenders as to their right to apply and when offenders would be permitted to do so.

Analysis [ 32 ] Returning to the December 2 nd , 2011 amendments and the affidavit of the offender, it is clear that he made no application prior to the amendments coming into force on December 2 nd , 2011. Thus, on a strict reading of s.745.6(2)(2), the offender had a window of opportunity to make an application for judicial review within 90 days after December 2 nd , 2011 or by March 1 st , 2012.

And, the application of s.745.6(2.4) results in the offender being barred from making an application until he has served a further 5 years of his sentence from March 1 st , 2012 or March 1 st , 2017. [ 33 ] Applying the authorities referenced above, this offender has been subjected to additional punishment within the meaning of Whaling , where Wagner J. said that it is the retrospective frustration of an expectation of liberty that constitutes punishment.

What is to be considered is the extent to which an offender’s settled expectation of liberty has been thwarted by retrospective legislative action: paragraph 60. But here, the offender’s s.7 Charter rights have been violated by the utter failure of CSC to follow their own Directive. While there is no notice requirement in the legislation, that does not cure a breach of s.7, in terms of fundamental fairness. As indicated in the offender’s affidavit, he has had no access to the internet, nor any outside communication other than a telephone to call family or friends.

As he put it, he is “totally reliant on the Institutional Head or my Parole Officer for any information about my ability to make an application for judicial review of parole ineligibility”.

I agree with the parties that the offender’s s.7 Charter rights were violated by CSC’s failure to give the offender notice of his ability to apply. [ 34 ] Furthermore, the Court expresses its disappointment that when the Federal Department of Justice sent its letter to the Court on October 7 th , 2014 on behalf of CSC and when their counsel appeared at a hearing before me on January 14 th , 2015 requesting a stay of the June 9 th , 2014 Order, no mention was made of the Directive set forth above, either in the letter or in oral submissions. Both the letter

and the oral submissions urged upon the Court that “Mr. Trohan is not eligible to make an application under s.745.6(1) until March 1 st , 2017.” Remedy [ 35 ] The simple remedy is for this Court to lift the stay of its June 9 th , 2014 Order and emphasize paragraph 3; that the preparation for all reports “shall be expedited”. If, however, the parties agree on another or subsequent Order, the Court will entertain it. An Order should be taken out confirming the remedy granted here and I direct the parties to do so within two weeks of the receipt of these reasons. Heard on the 24 th day of November, 2015.

Dated at the City of Calgary, Alberta this 5 th day of January, 2016. Neil Wittmann C.J.C.Q.B.A. Appearances: L. Kim Ross for the Applicant Shane Parker, Q.C. for the Respondent