Top court restores some early parole
Ontario panel releases men, women whose crimes predate Conservative law changes
For Souphin Inlakhana, early parole is the second chance she almost didn’t get.
“It’s a surprise to everybody,” said Inlakhana, 35, who was released on parole from Grand Valley Institution in Kitchener, Ont., in December, after being sentenced to more than six years in late 2011 for drug trafficking and related offences.
“It feels amazing,” she said. “I’ve started my life again.”
The London, Ont., resident is among a dozen prisoners who recently won their right to apply for early parole at Ontario’s highest court in a series of decisions that could open a similar door to other inmates across Canada.
It is a prospect that seemed all but dead in March 2011, when Prime Minister Stephen Harper’s Conservative government abolished Accelerated Parole Review (APR) for firsttime, non-violent federal offenders.
However, in May the Court of Appeal for Ontario concluded in several cases that inmates who committed their crimes before the legislation was passed are entitled under the Charter of Rights and Freedoms to be eligible early parole under the old regime.
Justice Russell Juriansz wrote the decision on behalf of a unanimous three-judge panel in the case of 10 women, including Inlakhana, serving sentences at Grand Valley for a variety of offences, including importing drugs, trafficking and fraud.
“The (Abolition of Early Parole Act) infringes the (Charter) rights of nonviolent offenders serving a first sentence of imprisonment in a federal penitentiary,” Juriansz wrote. “The changes to the parole system have the effect of appreciably increasing the amount of time such offenders would be incarcerated in comparison to what they would have expected under the regime in place at the time they committed their offences.”
The same panel of appeal judges also sided with inmates in two cases of men serving sentences at Beaver Creek Institution in Gravenhurst, Ont., for conspiracy to import cocaine, and other drug-related offences.
The rulings follow a decision at the Supreme Court of Canada last year, which found repealing accelerated parole retroactively was tantamount to punishing inmates twice. The old rules should apply to inmates who were sentenced before the Abolition of Early Parole Act came into effect, the court concluded.
Introduced in 1992, APR gave nonviolent, first-time federal offenders an opportunity to be granted parole after serving one-sixth of their sentences. Unlike the normal rules for parole, an eligible inmate was considered automatically for APR, and the onus was on the parole board to find a reason not to grant it.
Under the new rules, these inmates are subject to normal parole provisions, which make them eligible to apply for parole after serving onethird of their sentences.
If the recent Court of Appeal decisions stand, “a fair number of people in the penitentiary system” will be eligible for accelerated parole, according to Kingston lawyer Brian Callender, who represented the female inmates at Grand Valley and one of the men at Beaver Creek.
“I can see other jurisdictions following (this) line of reasoning,” Callender said. “It’s generally accepted that Canadians repudiate the notion of retroactive laws and retroactive punishments. So the court’s decision is consistent with that value.”
A spokeswoman for the office of the federal public safety minister said in an email that the government “is carefully reviewing these judgments and considering next steps.”
The attorney general has until late July to seek leave to appeal to the Supreme Court in any of the recent cases. In appealing the decision of the Superior Court in the case of the women at Grand Valley, the attorney general argued in submissions that the inmates did not have a “Charter-protected right to benefit from a statutory parole scheme that was repealed before they were convicted and sentenced.”
The attorney general also provided the government’s rationale for scrapping APR.
“Mounting evidence suggested that APR had failed to achieve its sentence-management goals, and could actually jeopardize public safety, rehabilitation, reintegration and recidivism,” the attorney general wrote in its submissions to the court.
But some critics say getting rid of APR has caused prison populations to balloon at great cost to taxpayers.
Correctional Investigator Howard Sapers said the retroactive abolition of APR, which he sees as part of a “rush of criminal justice changes in Canada over the last half-dozen years,” has created “a bit of a mess” in terms of sentence administration.
“You have different populations having their sentences administered subject to different rules,” Sapers said.
Inlakhana was granted parole after she and the other Grand Valley inmates won their case at Superior Court. She said she is now working in sales, seeking to acquire a real-estate licence and focusing on spending time with her son.
“I’m such a motivated person. Being in there was no good for me, because I felt like I wasn’t accomplishing anything,” she said. “My son keeps me staying positive. I just want to be a good role model for him.”
“It’s generally accepted that Canadians repudiate the notion of retroactive laws and retroactive punishments.” BRIAN CALLENDER KINGSTON LAWYER