News and Views — The David Rose Criminal Law Advisor

New Supreme Court Case — Retrospective Abolition of Early Parole Unconstitutional.

By: David Rose

New Supreme Court case — retrospective abolition of early parole is unconstitutional.

In 2011 Parliament enacted the Abolition of Early Parole Act (AEPA) which had the effect of abolishing eligibility for early parole for non-violent offenders who had served one sixth of their penitentiary sentences. The Respondents were all federal inmates who had been sentenced to federal imprisonment sentences before AEPA came into effect and argued that the new legislation could not be applied retrospectively so as to deny them one sixth parole eligibility. Both a trial judge and the British Columbia Court of Appeal found that retrospective application of the AEPA violated s. 11(h) of the Charter, which protects offenders against double punishment. The Supreme Court denied the Crown Appeal, and agreed with the courts below. Punishment, they found, includes expectations by the offender about the sentence. When those expectations are frustrated by new legislation there is a Charter Breach. The Court declined to lay down a set test to be applied in all cases. Writing for the Court Wagner J. said:

60. I will not articulate a formula that would apply to every case, because such a formula is not needed to resolve this appeal and the effect of every retrospective change will be context-specific. That said, the dominant consideration in each case will in my view be the extent to which an offender's settled expectation of liberty has been thwarted by retrospective legislative action. It is the retrospective frustration of an expectation of liberty that constitutes punishment. At one extreme, a retrospective change to the rules governing parole eligibility that has the effect of automatically lengthening the offender's period of incarceration constitutes additional punishment contrary to s. 11(h) of the Charter. A change that so categorically thwarts the expectation of liberty of an offender who has already been sentenced qualifies as one of the clearest of cases of a retrospective change that constitutes double punishment in the context of s. 11(h).