2015 MBCA 122, 2015 MBCA 122

Citation: Nucci et al v Canada (Attorney General), Date: 20151215 2015 MBCA 122 Docket: AI15-30-08353 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner BETWEEN : MARIO NUCCI, JOSE LEDO, JAY ) BERNALDO, GORDON DACK, DUY ) NGUYEN, JEREMY RITCHOT, ) S. J. Thliveris KAREEM MARTIN JR., DARREN ) for the Appellants LINDSAY, VIET CHUNG, JON HAYDEN ) ANTHONY, STEPHEN McCORKLE, ) N. Reddy and PAUL PAREDES, OLIVER VOLUNTAD, ) B. S.

Friesen BLAIR FIELD and JACK WLADYKA ) for the Respondent ) (Applicants) Appellants ) Appeal heard: ) October 19, 2015 - and - ) ) Judgment delivered: THE ATTORNEY GENERAL OF ) December 15, 2015 CANADA ) ) (Respondent) Respondent ) On appeal from 2015 MBQB 7 , 313 ManR (2d) 286 BURNETT JA [ 1 ] The applicants challenge the constitutional validity of section 10(1) of the Abolition of Early Parole Act , SC 2011, c 11 (the AEPA ).

Among other things, section 10(1) provides that the accelerated parole review (APR) process set out in sections 125 to 126.1 of the Corrections and Conditional Release Act , SC 1992, c 20 (the CCRA ), does not apply to offenders who were sentenced on or after March 28, 2011. [ 2 ] All of the applicants are first-time non-violent offenders who committed their offences prior to March 28, 2011, and who were convicted and sentenced after that date. As a result of section 10(1), the applicants were denied the benefits of the APR process.

Of particular significance in the context of this appeal, 13 of the applicants, who under the previous legislation would have been eligible for day parole after serving six months or one-sixth of their sentence (whichever was longer), did not become eligible for day parole until six months before their full eligibility date. [ 3 ] The application judge found that the repeal of the APR process had a prospective effect, did not constitute punishment and was not contrary to fundamental justice. He concluded that section 10(1) did not infringe

section 11(

i) of the Canadian Charter of Rights and Freedoms (the Charter ). [ 4 ] Two other appellate courts in Canada have considered the issues raised in this appeal, and both have concluded that the retrospective repeal of the APR process violated

section 11 (

i) and that the infringement was not justified under

section 1 of the Charter . [ 5 ] Largely for the reasons in Liang v Canada (Attorney General) et al , 2014 BCCA 190 , 355 BCAC 238 ; and Lewis et al v Canada (Attorney General) , 2015 ONCA 379 , 336 OAC 34 , I would allow this appeal and set aside the decision of the application judge. I share the view of the British Columbia Court of Appeal and the Ontario Court of Appeal that the retrospective abolition of the APR process infringed the

section 11 (

i) rights of the applicants and that the infringement cannot be saved by

section 1 of the Charter .

Question of Law and Standard of Review [ 6 ] In the Lewis decision (at para 1 ), Juriansz JA framed the question of law in the following terms: Are offenders who committed offences before, but were convicted and sentenced after, the enactment of the AEPA entitled to the APR regime previously in place under the CCRA by virtue of

section 11(

i) of the Charter ? [ 7 ] The same question of law arises in this appeal. As this is a pure question of law ( Lewis at para 9 ), the standard of review is correctness. Thus, if this Court finds that the application judge erred, it is free to replace his decision with its own ( see Housen v Nikolaisen , 2002 SCC 33 at para 8 , [2002] 2 SCR 235 ; and R v Farrah (D) , 2011 MBCA 49 at para 7 , 268 ManR (2d) 112 ). Section 10(1) and the Supreme Court of Canada Decision in Whaling [ 8 ] Section 10(1) of the AEPA as originally proclaimed in force provides: Application 10.

(1) 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 [March 28, 2011], 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. [ 9 ] In Canada (Attorney General) v Whaling , 2014 SCC 20 , [2014] 1 SCR 392 , the Supreme Court of Canada concluded that the retrospective application of section 10(1) to offenders who were sentenced before March 28, 2011, resulted in punishment and, therefore, violated

section 11(

h) of the Charter (i.e., the right not to be punished for an offence again). The Court declared section 10(1) to be invalid to the extent that it made the AEPA apply retrospectively to offenders sentenced before March 28, 2011. Applicants’ Position [ 10 ] The applicants assert that the abolition of the APR process infringes their rights under sections 7 and 11(

i) of the Charter . [ 11 ] Sections 7 and 11(

i) provide as follows: Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Proceedings in criminal and penal matters 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. [ 12 ] The applicants submit that the application of section 10(1) to offenders who committed their offences before March 28, 2011, and who were sentenced after that date, violates

section 7 of the Charter because: 1) the loss of APR is a deprivation of liberty captured by

section 7; and 2) that deprivation infringes a principle of fundamental justice, namely, the right to be tried and punished in accordance with the law in force at the time the offence was committed. [ 13 ] With respect to

section 11(

i) of the Charter , the applicants argue that the retrospective repeal of the APR process resulted in greater punishment (i.e., a longer period of incarceration) and that they are entitled to the benefit of the lesser punishment that the APR process afforded them at the time of the commission of the offences. As section 10(1) denies offenders that benefit, the applicants submit that it violates their rights under

section 11 ( i ).

[14] Finally, the applicants say that the Attorney General cannot justify the infringement of their rights under

section 1 of theCharter because none of the elements of the Oakes test (R v Oakes, (SCC), [1986] 1 SCR 103) have been established. In particular, the Attorney General has failed to demonstrate that the application of section 10(1) to offenders who committed theiroffences before March 28, 2011, and who were sentenced after that date, is sufficiently important to justify an infringement of sections 7and 11(

i) of the Charter, or that the retrospective application of the AEPA minimally impairs the applicants’ rights under those sections. Attorney General’s Position [15] In response to the applicants’

section 7 arguments, the Attorney General says that the applicants have failed to meet theburden of establishing: (

i) a deprivation of life, liberty or security of the person; and (ii) the breach of a principle of fundamental justice. Even if prior to repeal the APR process engaged the applicants’ expectation of liberty (which is denied), the repeal did not cause adeprivation of liberty inconsistent with any known principle of fundamental justice. [16] In response to the applicants’

section 11(

i) arguments, the Attorney General says that: 1) the AEPA caused no retrospective change to the applicants’ expectations because the AEPA had been proclaimed in force prior totheir sentencing, and they knew APR was not available; 2) section 10(1) did not constitute a change or variation in punishment between the time of commission of the offence and the time ofsentencing; 3) parole eligibility forms no part of the sentence of imprisonment; and 4) the only change arising from section 10(1) is a change to the management of the sentence imposed by the sentencing judge. [17] The Attorney General seeks to distinguish the Supreme Court of Canada decision in Whaling because it dealt withsection 11(

h) of the Charter and not

section 11(i), and on the basis that the definition of punishment in that decision focussed on aretrospective change to an offender’s settled expectation at sentencing. The Attorney General argues that an offender’s expectation ofliberty in relation to parole is based on the parole system that is in place at the time of sentencing, and that the repeal became punitiveonly when applied to lengthen the terms of incarceration of those who had already been sentenced when the AEPA came into force.

Unlike the situation in Whaling, section 10(1) had a prospective, not retrospective, effect because the applicants had not yet beensentenced at the time the APR process was repealed. [18] Not surprisingly, the Attorney General says that the decisions in Liang and Lewis were wrongly decided. [19] Fundamental to the Attorney General’s position is the proposition that section 10(1) did not “increase the harshness ofthe punishment between offence commission and sentencing.” [20] Finally, the Attorney General submits that if there was a violation of the applicants’ Charter rights (which is denied), itcan be justified as a reasonable limit contemplated by

section 1 of the Charter. A limit which is justified under

section 1 must “advanceconcerns that are pressing and substantial in a free and democratic society” (Canadian Broadcasting Corp v Canada (Attorney General),2011 SCC 2 at para 65, [2011] 1 SCR 19).

The objectives of applying the repeal of the APR process to offenders who committedoffences before March 28, 2011, and who are sentenced on or after that date are: 1) to achieve the goals of the AEPA generally in a timely manner instead of preserving the APR process for years or decades into thefuture for certain offenders; and 2) to avoid the logistical problems inherent in administering the parole system based on date of offence commission.

According to the Attorney General, the application of the repeal of the APR process to every offender sentenced after the repeal is theminimum impairment possible in the circumstances, as anything less than that would interfere with the objectives set out above. Discussion [21] As noted at the commencement of these reasons, the issues raised in this appeal were considered by the BritishColumbia Court of Appeal in Liang, and by the Ontario Court of Appeal in Lewis.

The reasoning in Lewis was adopted by the OntarioCourt of Appeal in its companion decisions (issued at the same time) in Lapple v Canada (Attorney General), 2015 ONCA 385 (QL);and Frost v Canada (Attorney General), 2015 ONCA 386 (QL). [22] The application judge in the present case did not have the benefit of the Ontario Court of Appeal decisions when hereleased his reasons. [23] In Liang, MacKenzie JA reviewed and applied the reasoning in Whaling to offenders in similar circumstances to theapplicants (i.e., the offence was committed before March 28, 2011, but the sentencing occurred after that date) and held that the effect ofsection 10(1) was to vary and increase the punishment between the time of commission and the time of sentencing, with the result thatthere was a constitutional entitlement under

section 11(

i) to the lesser punishment. [24] In my view, MacKenzie JA’s comments are both instructive and determinative of the issues raised in this appeal (atparas 15-16): 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, 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. The Crown makes a number of submissions as to why this simple logic should not be sufficient to dispose of this appeal. In particular,the Crown advances four reasons why the concept of “punishment” as used in both subsections 11(

h) and 11(

i) should be treateddifferently: (1) because the offenders were sentenced after the AEPA came into effect, no “settled expectation of liberty has beenthwarted” under the Whaling standard (at paras. 60, 63); (2) parole eligibility forms no part of the sentence of imprisonment andtherefore cannot constitute “punishment”; (3) the effect of changes to the CCRA system of parole, unlike changes to parole eligibilityunder the Criminal Code, is not the “punishment” at which the Charter is aimed; and (4) the purposes of the two subsections aredifferent, and the definition of “punishment” in Whaling with respect to s. 11(

h) does not fit with the purpose of s. 11(i). The first threearguments are to a certain extent interdependent, so will be addressed together before discussing the impact of the purpose of theprovisions on the

interpretation of s. 11(i). MacKenzie JA addressed (and rejected) each of the Attorney General’s submissions, for reasons which I adopt (but will not repeat) andshe concluded (at paras 40, 44-45): In my view, the Crown has not provided any compelling reason why the Whaling definition of “punishment” should not apply to s. 11(i). Incarceration is “the most severe deprivation of liberty known to our law” (R. v. Wigglesworth, (SCC), [1987] 2 S.C.R.541 at 562), and “retrospective change to parole eligibility may have the effect of extending an offender’s term of incarceration”(Whaling, at para. 51).

The effect of the change created by the AEPA was to automatically increase the period of incarceration. Therefore, as in Whaling, it constitutes among the “clearest of cases” of punishment, described by the Court as follows: [72] ... The imposition of a delay in parole eligibility in this case is analogous to the imposition of delayed parole eligibility by a judgeunder the Criminal Code as part of the sentence. As I mentioned above, Iacobucci J. noted in Shropshire [ (SCC), [1995]4 SCR 227] that the imposition of such a delay “clearly indicates that parole ineligibility is part of the ‘punishment’” (para. 23).

Imposing this same consequence by means of retrospective legislation triggers the protection against double punishment set out in s.11(h). (Emphasis added.) I fail to see why this logic should not apply here, and the Crown has not provided a compelling argument to the contrary. As notedabove, far from leading to a rejection of the Whaling definition of punishment in this case, the different purposes of the provisionsactually support the conclusion that the definition of punishment adopted in Whaling applies with at least as much, if not greater, force inthe context of s. 11(i).

As a result, I have no difficulty finding the effect of s. 10(1) of the AEPA is to increase automatically the period ofincarceration for the respondents. This constitutes a variation in the punishment for the offence, which variation occurred between thetime of commission and the time of sentencing. The respondents are therefore constitutionally entitled under s. 11(

i) to the lesserpunishment, that is, to the parole regime in place at the time of commission, in the absence of a s. 1 justification. [emphasis added] [25] On January 29, 2015, the Supreme Court of Canada denied leave to appeal the decision in Liang ([2014] SCCA No 298(QL)). [26] On May 29, 2015, the Ontario Court of Appeal cited Liang with approval in Lewis. In Lewis, Juriansz JA concluded (atparas 21-22, 24-25): 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, [s]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.

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. The Attorney General submits that Liang was wrongly decided , and the Supreme Court’s refusal of the application for leave to appeal should not be regarded as approval of the British Columbia Court of Appeal’s decision. The effect of the Supreme Court’s 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). 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. [emphasis added] [ 27 ] I can add little to the reasoning or analysis in the Liang and Lewis decisions. [ 28 ] In my view, the application judge in the present case was in error when he found that the repeal of the APR process had a prospective effect, that it did not constitute punishment and that it did not infringe

section 11(

i) of the Charter . [ 29 ] First, the AEPA is retroactive legislation in the sense that it applies to offences that occurred before the legislation was proclaimed. In Whaling , the Court said (at para 55):

Section 11( i ), although less explicitly concerned with retroactivity, protects against increases in punishment between the time of commission of the crime and the time of sentencing.

Both these provisions express society’s repudiation of retroactive punishment, broadly defined — of retroactive legislation establishing a criminal offence in the case of s. 11 ( g ), and of retroactive legislation under which a harsher penalty would apply to an offence committed before its enactment in the case of s. 11 ( i ). [ 30 ] Second, the effect of section 10(1) is to “automatically” and “appreciably” increase the period of incarceration for the applicants, and that increase in incarceration is a variation in punishment ( Liang at para 45 ; Lewis at para 24 ). [ 31 ] Third, the Attorney General’s proposition that the repeal did not increase the harshness of the punishment between offence commission and sentencing is wrong in both senses.

There is certainly no question that the punishment was varied and increased in that interval. This can be illustrated by a simple example. Two first-time non-violent offenders jointly commit the same offence prior to March 28, 2011. One enters a plea and is sentenced before March 28, 2011. The other exercises his/her right to obtain disclosure and enters a plea and is sentenced after March 28, 2011.

The first offender is entitled to APR, while the second offender is not. [ 32 ] The Attorney General has failed to persuade me that there was any error in the reasoning or conclusions in Liang , or in the subsequent Ontario Court of Appeal decisions. The punishment for the offences committed by the applicants was varied and increased between the time of commission and sentencing, and accordingly, pursuant to

section 11(

i) of the Charter , the applicants are entitled to the benefit of the APR process. [ 33 ] Finally, as was the case in Whaling , Liang and Lewis , I have not been persuaded that section 10(1) was the least restrictive means available to meet the government’s objectives. In Whaling , Wagner J observed (at para 80): In my view, having the repeal apply only prospectively was an alternative means available to Parliament that would have enabled it to attain the objectives of reforming parole administration and maintaining confidence in the justice system without violating the s. 11 (

h) rights of offenders who had already been sentenced. Regarding the Crown’s argument that retrospective application is necessary to maintain confidence in the justice system, I would point out that the enactment of Charter -infringing legislation does great damage to that confidence. The Crown has produced no evidence to show why the alternative of a prospective repeal, which would have been compatible with the respondents’ constitutional rights, would have significantly undermined its objectives.

Similarly, in the present circumstances, I am of the view that having the repeal apply prospectively to offenders who committed an offence after March 28, 2011, was an alternative means available to Parliament.

[ 34 ] It is not necessary to address the applicants’

section 7 arguments given my findings relative to

section 11(

i) of the Charter . [ 35 ] For the foregoing reasons, I conclude that section 10(1) of the AEPA is not valid, and cannot be justified, to the extent that it purports to apply to offenders sentenced on or after March 28, 2011, for offences committed before that date. [ 36 ] I would, therefore, allow the appeal with costs in this Court and below. JA I agree: JA I agree: JA