The Court says “No” to retroactive punishment

Today, in the case of Canada (Attorney General) v. Whaling, 2014 SCC 20, the Supreme Court of Canada pushed back against one small element of the government’s “tough on crime” agenda, namely, the retroactive abolition of early parole for offenders already serving their sentences. In a unanimous decision, the Court held that the Charter‘s prohibition against double punishment (s. 11(h)) presented an insurmountable obstacle to the government’s attempt to get tough, not only on offenders who were to be convicted and sentenced in the future, but on offenders who had already previously been convicted and sentenced before the amending legislation, Abolition of Early Parole Act, took effect.

Justice Wagner gave reasons for the Court. He noted that while there is a distinction between a sentence and the conditions pursuant to which a sentence is served, this case had to determine whether changes to the conditions of the sentence (how long one had to wait until become eligible for parole) constituted a form of punishment that attracted the attention of s. 11(h) (para. 1). First, he observed that s. 11(h) had two elements to it: the right not to be convicted twice and the right not to be punished twice (para. 37):

Let me begin by addressing the plain meaning of s. 11(h). The introductory words to s. 11 indicate that the subject of the entire section is a “person charged with an offence”. Paragraph (h) then provides that this person has the right, “if finally found guilty and punished for the offence, not to be tried or punished for it again”. The 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. In other words, as Stuart notes in respect of double jeopardy more generally, the protection applies to both the harassment of multiple trials and the harassment of additional punishment (p. 464). The conjunctive language of the words “found guilty and punished” further accentuates the disjunctive language of “tried or punished”. It is thus clear from the plain meaning of the words that either being tried again or being punished again is sufficient to engage s. 11(h).

(emphasis in original)

After reviewing the caselaw respecting double jeopardy, Justice Wagner determined that there were now three categories of situations where the protection afforded by s. 11(h) operates to “preclude further state actions in relation to the same offence” (para. 54):

(a) a proceeding that is criminal or quasi-criminal in nature (being “tried . . . again”);
(b) an additional sanction or consequence that meets the two-part Rodgers test for punishment (being “punished . . . again”) in that it 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”).

It was the third category that was involved in the case before the Court: it was not the repeal of the early parole provisions that was unconstitutional but rather the retrospective application of those provisions which had the effect of increasing the minimum period of incarceration for those who had already been convicted and sentenced.

He found that the Abolition of Early Parole Act was unconstitutional insofar as it operated retrospectively to increase the minimum period of incarceration for already sentenced offenders and that this was not saved by s. 1 of the Charter.

To me, this decision makes sense. Any prisoner already serving time would have understood that the thrust of the Abolition of Early Parole Act‘s retroactivity provisions was to make his or her time of incarceration longer and harder to attenuate. In other words, the punishment was increased or supplemented: it was a further punishment. In this case, I am glad to say that the Charter worked.

I remain

Constitutionally yours,

Arthur Grant

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