Rather lost in all the noise generated by the Supreme Court’s decision in l’Affaire Nadon is the Court’s decision, delivered last Thursday, in Canada (Attorney General) v. Whaling, 2014 SCC 20, which considered, and found unconstitutional, the retroactive application of the abolition of accelerated parole review by one of the recent “tough on crime” laws. I would like to come back to that decision.
The challenge is not to the abolition of accelerated parole itself: there is no dispute that Parliament can set the terms of parole eligibility. The issue is rather whether Parliament can change these terms for the worse for an inmate after he has been sentenced and started serving his sentence. The respondents argued that this is a violation of their right “not to be punished … again” for an offence for which they were already punished, protected by par. 11(h) of the Charter. The heart of the dispute was whether the new rules making prisoners already sentenced eligible for parole at a later date and on more onerous conditions than the old ones impose a form of punishment on them, or are merely a matter of sentence administration, as the government contended.
The Court of Appeal found that a change of the terms under which an already-sentenced prisoner would be eligible for parole requiring him or her to spend more time in prison was, indeed, a form of punishment, and thus a violation of the Charter, which in its view the government failed to justify under s. 1. The Supreme Court, in a unanimous judgment by Justice Wagner, agreed.
The government argued that the abolition of accelerated parole did not have punitive aims; its purposes were, rather, rehabilitation of the offenders, as well public safety and confidence in the judicial system. It also contended that par. 11(h) of the Charter only applied to cases where a person was more than once subject of proceedings of a criminal nature arising out the same facts.
With respect to the latter argument, Justice Wagner points out that
[t]he disjunctive language of the words “tried or punished” clearly indicates that s. 11(h)’s protection against additional punishment is independent of its protection against being tried again (par. 37; emphasis in the original).
Furthermore, says Justice Wagner, it stands to reason that if the Charter protects one against being punished again for the same offence as a result of the application of due process of law, it must protect against the greater evil of being punished again without due process.
Justice Wagner identifies three types of situations to which par. 11(h) of Charter applies:
(a) a [new] proceeding that is criminal or quasi-criminal in nature (being “tried . . . again”);
(b) an additional sanction or consequence that … is similar in nature to the types of sanctions available under the Criminal Code and is imposed in furtherance of the purpose and principles of sentencing; and
(c) retrospective changes to the conditions of the original sanction which have the effect of adding to the offender’s punishment (being “punished . . . again”).
A change only to the conditions under which a sentence is served will not come within the scope of (c), but a change that results in the sentencing actually lasting longer will. Importantly, this includes changes that result in a person serving a longer part of his or her sentence in prison, even if the overall length of the sentence remains the same. The abolition of accelerated parole for those who, at the time of their sentencing, were entitled to it adds to their punishment.
Although Justice Wagner refuses, “[d]espite some troubling passages from Hansard that are suggestive of [a punitive and therefore] unconstitutional purpose,” to conclude that the object of the retroactive abolition of accelerated parole review was not merely the uniform application of the new sentencing regime to all offenders, as the government contended. However, a law can be rendered unconstitutional by its effects as well as by its purpose, which is what happens here:
[t]he imposition of a delay in parole eligibility in this case is analogous to the imposition of delayed parole eligibility by a judge under the Criminal Code as part of the sentence (par. 72),
which is a form of punishment. Since the is done retroactively for those who were already punished for their offences, par. 11(h) of the Charter is infringed.
Justice Wagner then turns, briefly, to s. 1 of the Charter. Justice Wagner finds the objectives of effective and uniform parole administration, and the support of public confidence in the justice system which is supposed to result form it, pressing and substantial. He also finds that the retroactive abolition of accelerated parole review is rationally connected to these objectives. It fails, however, at the “minimal impairment” stage, because
[t]he 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 (par. 80).
Although Justice Wagner’s s. 1 analysis seems a little quick, almost an afterthought, I think that this he and the Court get the outcome right. As I wrote when commenting on the Court of Appeal decision
[w]hatever the reasons for abolishing accelerated parole for the future, imposing tougher punishment retroactively seems merely petty.
UPDATE: Michael Spratt delves into the detail of how Parliament and the government miserably failed ― and indeed refused to ― consider the constitutionality of the retroactive application of the abolition of accelerated parole. It is an instructive as it is sad, particularly for those who like to believe that legislators take rights seriously.