2016 QCCA 159, 2016 QCCA 159

Unofficial English Translation Parent v. Guimond 2016 QCCA 159 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL N° : 500-10-005714-140 (500-36-007153-144) DATE: February 1, 2016 CORAM: THE HONOURABLE MARIE ST-PIERRE, J.A. MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. GILLES PARENT APPELLANT – Applicant v.

YVES GUIMOND PAROLE BOARD OF CANADA RESPONDENTS - Respondents and THE ATTORNEY GENERAL OF CANADA IMPLEADED PARTY – Impleaded party JUDGMENT [ 1 ] The issue debated at trial and now before us is the constitutional validity of the transitional provision in section 10(1) of the Abolition of Early Parole Act , [1] which eliminated the accelerated parole review process [2] that had been implemented under sections 125 to 126.1 of the Corrections and Conditional Release Act . [3] [ 2 ] On August 8, 2014, the Superior Court (the Honourable Éliane B.

Perreault), District of Montreal, held that the provision was constitutional and dismissed the application for habeas corpus . The appellant appeals. [ 3 ] As a preliminary remark, the habeas corpus sought by the appellant appears to draw inspiration from the expanded proceeding recognized by the Supreme Court in Gamble [4] and Sarson [5] or in prison law judgments, [6] through which the appellant seeks the issuance of the writ, a declaration that his detention is unlawful, and an order for his immediate release.

Both at trial and on appeal, the parties based their arguments on this, and it is appropriate to continue on the assumption that the procedural vehicle is the right one. As the Attorney General of Canada has stated, however, if the Court allows the appeal, the appellant should not be released, but instead a review of his case by the authorities should be ordered. [ 4 ] At trial, the debate benefitted from, among other judgments, Liang v. Canada (Attorney General) , [7] rendered by the Court of Appeal for British Columbia, which, in a situation identical to this one, found that the AEPA violates paragraph 11(

i) of the Canadian Charter of Rights and Freedoms [8] with respect to persons convicted for offences committed before the APR was repealed. [ 5 ] Two additional elements were raised at the appeal hearing: the Supreme Court of Canada had refused to authorize the appeal in Liang [9] and the Court of Appeal for Ontario [10] had recently rendered four judgments applying the conclusions in Liang .

On January 14, 2016, the Supreme Court of Canada refused the Attorney General of Canada’s applications for leave to appeal from three of these four judgments. [11] [ 6 ] Liang and the judgments that have followed it are based in part on Whaling , rendered by the Supreme Court of Canada. [12] In that judgment, the Court determines that the retrospective application of the elimination of APR is a sentence within the meaning of 11(

h) of the Charter for those who are already convicted because its effect increases significantly the duration of detention. [ 7 ] Here, the arguments are the same as those raised in Liang concerning the violation of 11(

i) of the Charter , but the outcome benefitted the Crown’s position. The Crown, asked the trial judge to distinguish Whaling , which applied 11(

h) rather than 11(

i) of the

Charter. On appeal, he maintains that Liang is wrong. [8] The appellant appeals and argues that abolishing the APR infringes the rights under sections 7, 9, 10(c), and 11(

i) of theCharter. In light of the conclusion that there was a violation of paragraph 11(i), there is no need to consider the other alleged violations. [9] Briefly, the context is as follows. Before the amendments came into effect on March 28, 2011, inmates could obtain parole orday-parole once they had served one-sixth of a first prison sentence for a non violent offence. The appellant committed crimes between2006 and 2008, but he was tried after March of 2011 and sentenced on November 28, 2012, once the APR had been abolished.

Had thisprocedure not been abolished, the appellant would have benefitted from it as early as November 28, 2013. On February 5, 2014, he filedhis application for parole, but on February 14, 2014, Correctional Services refused to prepare his file for the accelerated review providedby the APR. He filed an application for habeas corpus before the Superior Court to review the lawfulness of his detention. [10] The trial judge dismissed the appellant’s arguments.

At the request of the Attorney General of Canada, the trial judgedistinguished Whaling, in which the Court found that an expectation of liberty was created by the APR at sentencing and that itsretrospective elimination frustrated this expectation. Consequently, the judge accepted that there was no violation if the convictionoccurred after the APR had been abolished, regardless of whether the offence was committed while the program still existed. [11] The trial judge continued by excluding the application of paragraph 11(

i) of the Charter, finding that sentence managementunder the APR is not a sentence within the meaning of that paragraph and that the law’s retrospective effect did not vary the sentence.Finally, she dwelled on Liang, expressed her disagreement with the conclusion and found that it did not apply. [12] With respect, the trial judge committed an error when she ruled out the application of paragraph 11(

i) of the Charter. [13] The British Columbia Court of Appeal’s

interpretation of Whaling and the resulting reasoning are convincing, persuasive, andsolid. There is no reason to depart from it, as did the trial judge. In particular, it is clear that eliminating the APR is a sentence within themeaning of paragraph 11(

i) of the Charter and that this

interpretation is required by both the reasons of the Supreme Court in Whalingand the very wording of paragraph 11(i).

Indeed, the Supreme Court found that a retrospective change to the conditions of the sentence was punitive and considerably increased the risk of prolonging incarceration.[13] As Wagner, J. correctly points out in Whaling, “[i]t is the retrospective frustration of an expectation of liberty that constitutes punishment”,[14] that is to say, the expectation with respect to the duration of the sentence.[15] To paraphrase MacKenzie, J. in Liang, the issue is not whether the offender had a subjective expectation of liberty, but whether the duration of the sentence has been objectively increased.[16] [14] It is obvious that the elimination of APRs appreciably increased the time in detention of convicts who would otherwise havebeen entitled to benefit from the APR as it then was.

Offenders are thus more severely punished than they would have been had theirconviction been contemporaneous to their offence. The distinctions with Whaling submitted by the Attorney General of Canada andaccepted by the judge are without merit. [15] The Attorney General of Canada argues that eliminating the APR is not a sentence and Parliament is free to bring changes tothe parole regime without affecting the sentence itself.

The determinative issue is the moment of the conviction rather than that of thecommission of the offence. [16] These arguments are the same as those submitted to the various appellate courts. The Court of Appeal for Ontario responded asfollows, a response that is based on Liang and which should be adopted here: [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, therespondents 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 “settledexpectation of liberty” referred to in Whaling was not “a psychological standard directed at vindicating the subjective expectation ofoffenders, but instead, an objective standard to determine whether the punishment has in fact increased”: at para. 19.

Viewed from thatperspective, he concluded that extended incarceration was an “objectively ascertainable effect” of the changes to the parole systembetween 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 offenderwas 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 issuehere were committed in 2009 and 2010; the APR system was abolished in 2011; the offenders were sentenced in 2012 and 2013. Thus, atthe time of the commission of the offences in question, the law permitted offenders the benefit of the APR system; at the time ofsentencing, the APR system was no longer available.

If the abolition of APR constitutes "punishment", then the punishment for theoffence 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 inWhaling found the abolition of the APR system constituted "punishment" because it substantially increased the risk of additionalincarceration. The same legislation would have the same effect in this case.

Therefore, the offenders are entitled to the "lesser"punishment; that is, to APR.[17] [17] Finally, the violation is not justified under

section 1 of the Charter. In light of her conclusion that there was no violation, thejudge did not analyze this issue beyond asserting that had there been an infringement, the infringement would have been justified. [18] The evidence and arguments of the Attorney General of Canada with respect to

section 1 of the Charter are largely similar tothose submitted in Liang. The Attorney General of Canada has tried to convince us that, in light of the evidence, this judgment was

wrong to dismiss her arguments. That is not the case. Overall, we agree with the reasoning in Liang and find that the violation is not justified within the meaning of

section 1 of the Charter . [ 19 ] For these reasons, the trial judgment is set aside. In his conclusions, the appellant asks this Court to render any other ruling that may be appropriate in the circumstances. Here, in light of the violation of paragraph 11(

i) of the Charter , we propose to declare all the impugned amendments inoperative and order that the appellant’s file be subject to the review required under the APR.

FOR THESE REASONS, THE COURT: [ 20 ] SETS ASIDE the trial judgment dismissing the application in habeas corpus rendered on August 8, 2014; [ 21 ] DECLARES subsection 10(1) of the Abolition of Early Parole Act , S.C. 2011, c. 11 to be inoperative with respect to offenders whose offences were committed before it came into effect on March 28, 2011; [ 22 ] ORDERS Correctional Service Canada and the Parole Board of Canada to prepare and review the appellant’s file within sixty (60) days of this judgment according to the rules for accelerated parole review set out under

section 125 et seq of the Corrections and Conditional Release Act , S.C. 1992, c. 20, as they were prior to the enactment of the Abolition of Early Parole Act , S.C. 2011, c. 11; [ 23 ] The WHOLE without costs. MARIE ST-PIERRE, J.A. MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. Mtre Renée Millette RENÉE MILLETTE, AVOCATE For the appellant Mtre Éric Lafrenière Mtre Dominique Guimond JUSTICE CANADA For the respondents and the impleaded party Date of hearing: June 15, 2015