Prisoners Cannot Be Punished Twice: Canada (Attorney General) v Whaling
This past March, the Supreme Court of Canada (“SCC”) issued a unanimous 8-0 decision on Canada (Attorney General) v Whaling,  1 SCR 392. This ruling upholds the Charter right of prisoners not to be punished twice for the same offence.
In 1992, Parliament brought in a simplified process for accelerated parole review (“APR”) that would benefit non-violent first-time offenders. In 1997, the process was expanded to include early eligibility for day parole. Later, in March 2011, the Abolition of Early Parole Act [AEPA] came into effect. It abolished the APR, and, in provision 10(1), applied its abolition to any offenders currently serving sentences.
This provision is what is at issue in this case. When the AEPA took effect, it substantially changed the expectations of current non-violent first-time offenders who had already been sentenced and were automatically eligible for day parole within a reduced time frame. Three of these prisoners brought a case to the British Columbia Supreme Court to challenge the constitutionality of 10(1) of the AEPA.
The trial judge ruled in favour of the prisoners. The case was then appealed to the British Columbia Court of Appeal. When that court also found in favour of the prisoners, the case was appealed to the SCC.
The SCC focused on 1) whether s. 11(h) of the Charter is engaged in this case and 2) whether the impugned provision essentially adds punishment to offenders in it purpose or effect or if it could be justified under s. 1 of the Charter.
The major Charter provision that the court examined was section 11(h). It states that any person charged with an offence has the right “if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.” Provision 10(1) of the AEPA made the act retroactive for existing prisoners. Before the AEPA came into effect, the APR was automatically triggered if a prison warden decided that there were no reasonable grounds to believe that the offender was is likely to commit a violent offence if released. Prisoners who met that criteria eligible for day parole at an earlier point in time than those who did not – they became eligible for day parole after the longer of six months or one sixth of their sentence instead of waiting until six months before they were eligible for full parole.
Once the AEPA came into force, it changed both the timing and the process for early day parole, as well requiring prisoners to meet a higher standard to qualify for the day parole. The effect this had on the three prisoners who brought the case was that it delayed their eligibility dates for day parole: it pushed Christopher Whaling’s back by three months, Judith Slobbe’s by nine months, and Cesar Maidana’s by 21 months.
The Crown argued that the Court should engage in a narrow reading of s. 11(h). It suggested that the section was not engaged by AEPA 10(1) because AEPA was not focused on punishment but on reintegration. This change, it suggested, did not meet the definition of punishment. For 11(h) to be engaged, it argued, there would have to be some sort of duplication of a criminal process that would punish an offender. Without a duplicate procedure, there was no punishment.
In a decision written by Wagner J., the Court chose to prefer the lower courts’ reading of 11(h), which was a much broader reading. It allowed the concept of punishment not to be limited to a procedural inquiry, but covered any punitive effect of the repeal. The punitive effect here was the elimination of early day parole for prisoners who had already been sentenced.
The Court found that while 10(1) of the AEPA was not punitive in its purpose, it was punitive in its effect. It further found that the Crown had not sufficiently shown that there was no less intrusive alternative, and therefore, the provision could not be justified under s. 1 of the Charter. The remedy the SCC applied echoed that of the trial judge, which was to give provision 10(1) of the AEPA no force or effect.
This ruling shows strong protection from the SCC of the rights of a vulnerable population, incarcerated offenders. When a prisoner has been deprived of his liberty, he feels the the strongest available force of government power. To protect rule of law and the notion of what reasonable limits to freedom are in our democracy, it is necessary to treat offenders justly.