Supreme Court again asked to rule on scrapping parole law
The federal government is asking the Supreme Court to uphold a 2011 law abolishing early parole for certain criminals, a portion of which the court already struck down as unconstitutional.
In an 8-0 decision last year, the high court effectively ruled the Abolition of Early Parole Act did not apply to criminals sentenced before the law came into force on March 28, 2011. Before then, first-time, non-violent offenders were eligible for day parole after serving one-sixth of their sentence. But the repeal of “accelerated parole review” meant they could only apply six months before their full parole eligibility date, or six months into their sentence, whichever was longer.
The act was a key piece of the Conservatives’ tough-on-crime agenda and the first in a series of such legislation to be struck down as unconstitutional by the Supreme Court.
Justice Richard Wagner, writing for the court, said retroactive application of the law had the effect of punishing inmates twice. “The effect — extended incarceration — was automatic and without regard to individual circumstances,” he wrote. Section 11(i) of the Charter of Rights and Freedoms guarantees that anyone convicted of a crime be given the lesser punishment if the punishment has changed between the time of their crime and the time of sentencing.
Lower court decisions have since ruled that the repeal of early parole review also does not apply to offenders who committed crimes before the act became law.
The British Columbia Court of Appeal in May 2014 upheld a lower-court ruling that the act violated an inmate’s Charter rights and should not apply in cases where the person’s crime was committed before March 28, 2011. The federal government sought leaveto-appeal to the Supreme Court but was rejected.
Again in late May, the Ontario Court of Appeal issued similar rulings in two other cases, including that of cocaine trafficker Raymond Lapple, 54. In both Ontario cases, the court found that the repeal of the accelerated parole law had the effect of increasing the offenders’ punishments between the time of their crimes and sentencing.
Lapple’s crime, involving 43 kilograms of cocaine, was committed in 2009 but he wasn’t convicted and sentenced until 2013. He received 12 years, but was awarded 7.5 years off the sentence for time in custody awaiting trial. He was released from prison in June, 19 months later than he would have been under the old law, he says.
The department of justice is once again seeking leave to appeal to the Supreme Court, this time over the appellate court judgment in Lapple.
In its application, it asks the high court to consider whether section 11(i) guarantees offenders, “the benefit of the most favourable parole regime when the parole regime varies between the time of the commission of an offence and the time of their sentencing?”
The government says the appeal court decisions have created a patchwork of parole regimes.
As of Aug. 2, it says 747 federal inmates would have been eligible for accelerated parole review had it not been abolished.
Of those, 276 were in Ontario and B.C. and, because of the recent court decisions, are still eligible for early parole review. But 471 other offenders, “in the same position in the rest of Canada are not.” (Superior courts in Quebec and Manitoba have held the repeal of accelerated parole review does not violate section 11(i), but those decisions are under appeal.)
The government says Parliament, “requires the guidance of the court to reconcile apparently inconsistent jurisprudence before it can consider a legislative amendment to resolve the patchwork of arrangements.”
It adds that accelerated parole review was abolished because, “mounting evidence suggested (it) failed to achieve its sentence management goals and could actually jeopardize public safety, rehabilitation, reintegration and recidivism.”
Lapple is appealing his conviction and contemplating a civil suit against the government. “The attorney general of Canada is taking me and 747 other inmates back to court after the courts have already dealt with this issue. Some inmates were detained three and four years longer for no fault of their own,” he said in an email from his home in Stouffville, Ont.
In its 2014 judgment, the Supreme Court limited its Charter ruling to inmates sentenced before accelerated parole eligibility was abolished and acknowledged that, “the purposes served in limiting the parole eligibility of all offenders are within the prerogative of Parliament.”