R. v. Gamble

R. v. Gamble
Collection
Supreme Court Judgments
Date
1988-12-08
Report
[1988] 2 SCR 595
Case number
20433
Judges
Dickson, Robert George Brian; Beetz, Jean; Lamer, Antonio; Wilson, Bertha; L'Heureux-Dubé, Claire
On appeal from
Ontario
Subjects
Constitutional law
Prerogative writs
Notes
SCC Case Information: 20433
Decision Content
r. v. gamble, [1988] 2 S.C.R. 595
Janise Marie Gamble Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General for Alberta and the Attorney General for Ontario Interveners
indexed as: r. v. gamble
File No.: 20433.
1988: June 17; 1988: December 8.
Present: Dickson C.J. and Beetz, Lamer, Wilson and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Interpretation ‑‑ Retrospectivity ‑‑ Accused convicted and sentenced before the proclamation of the Charter under the wrong provisions of the Criminal Code ‑‑ Accused sentenced to life imprisonment without eligibility for parole for 25 years ‑‑ Period of parole ineligibility between 10 to 20 years, rather than 25, if proper law applied ‑‑ Application for Charter relief after 10 years of imprisonment ‑‑ Accused alleging that current operation of the parole ineligibility provision in the sentence violates s. 7 of the Charter ‑‑ Whether accused's claim involves a retrospective application of the Charter ‑‑ Criminal Law Amendment Act (No. 2), 1976, S.C. 1974‑75‑76, c. 105, ss. 4, 5, 21, 27.
Constitutional law ‑‑ Charter of Rights ‑‑ Liberty of the person ‑‑ Fundamental justice ‑‑ Accused convicted and sentenced under the wrong provisions of the Criminal Code ‑‑ Accused sentenced to life imprisonment without eligibility for parole for 25 years ‑‑ Period of parole ineligibility between 10 to 20 years, rather than 25, if proper law applied ‑‑ Whether current operation of the parole ineligibility provision in the sentence violates s. 7 of the Charter .
Constitutional law ‑‑ Charter of Rights ‑‑ Remedy ‑‑ Declaratory relief ‑‑ Accused seeking relief under s. 24(1) of the Charter from the current operation of the parole ineligibility provision in her sentence ‑‑ Whether accused entitled to a declaration of eligibility for parole.
Prerogative writs ‑‑ Habeas corpus ‑‑ Jurisdiction ‑‑ Superior courts ‑‑ Accused convicted and sentenced in Alberta but imprisoned in Ontario ‑‑ Application for habeas corpus and for Charter relief under s. 24(1) of the Charter ‑‑ Whether Supreme Court of Ontario has jurisdiction to issue habeas corpus.
Prerogative writs ‑‑ Habeas corpus ‑‑ Availability ‑‑ Parole ‑‑ Whether habeas corpus appropriate to review the legality of the deprivation of liberty of the accused inherent in the operation of the parole ineligibility provision in her sentence.
In March 1976, appellant's accomplice killed a police officer while they were in flight from a robbery. Nine months later, appellant was convicted of first degree murder under s. 214 of the Criminal Code and was sentenced to life imprisonment without eligibility for parole for 25 years pursuant to s. 669(a) of the Code. Both sections were proclaimed in force on July 26, 1976 as part of a new criminal law (Criminal Law Amendment Act (No. 2), 1976, S.C. 1974‑75‑76, c. 105). On appeal, the Appellate Division of the Supreme Court of Alberta found that she should have been tried under the old provisions of the Criminal Code in force at the time of the offence. After comparing the old and new provisions, the Court concluded that appellant had been prejudiced by her trial under the new provisions but held that it was prevented from granting the remedy of a new trial under the old law because of the transitional provisions of s. 27(2) of the Criminal Law Amendment Act (No. 2), 1976. The effect of these provisions was that the new trial and the punishment imposed in the event of conviction would be the same as if the offence had been committed after the coming into force of the amendment Act. The law applicable to the new trial would accordingly be the same as that applied at the previous trial. Appellant's application for leave to appeal to the Supreme Court of Canada was dismissed.
If the appellant had been found guilty of murder punishable by life imprisonment, as opposed to murder punishable by death, under the law in force before July 26, 1976, she would have been ineligible for parole for not more than 20 years but also for not less than 10. In 1986, after 10 years of imprisonment in a penitentiary in Kingston, appellant made an application to the Supreme Court of Ontario for relief by means of a writ of habeas corpus ad subjiciendum with a writ of certiorari in aid and under s. 24(1) of the Canadian Charter of Rights and Freedoms . Appellant alleged that her continued detention pursuant to the 25‑year parole ineligibility condition in her sentence violated s. 7 of the Charter and that she was entitled, under s. 24(1) of the Charter , to a declaration that she is now eligible for parole. The Supreme Court of Ontario dismissed the application and the judgment was affirmed by the Court of Appeal.
Held (Dickson C.J. and Beetz J. dissenting): The appeal should be allowed.
Per Lamer, Wilson and L'Heureux‑Dubé JJ.: Appellant's s. 7 claim does not involve a retrospective application of the Charter . Appellant, convicted and sentenced under the wrong law, is not seeking a review of her pre‑Charter trial and sentence in light of the standards contained in the Charter . Appellant's case is that the current ongoing operation of the parole ineligibility provision in her sentence violates her liberty interest under s. 7 of the Charter and is therefore unlawful. This unlawfulness is part of the pre‑Charter history and has, in appellant's submission, largely contributed to her current continuing unconstitutional detention. The relevant act to which the Charter is applied would not be the conviction or sentencing but the continuing execution of that part of the sentence which mandates a 25‑year period of parole ineligibility. When, as in this case, a person claims a continuing current violation of her liberty interest, it is the duty of the courts to consider her Charter claim and, in the context of that claim, to consider pre‑Charter history to the extent it explains or contributes to what is alleged to be a current Charter violation. This does not involve a retrospective application of the Charter . The decision of this Court in R. v. Milne, [1987] 2 S.C.R. 512, was distinguishable from the present case.
The Ontario courts had jurisdiction to entertain the appellant's application for habeas corpus and Charter relief under s. 24(1) of the Charter . The fact that she was convicted and sentenced in Alberta does not deprive the Superior Court of Ontario of its traditional jurisdiction to issue a writ of habeas corpus ad subjiciendum to those in the province detaining a person in the province for the purpose of reviewing the legality of that detention or confinement. Where a court has jurisdiction over the subject matter and the person, it may, under s. 24(1) of the Charter , grant such relief as it considers appropriate and just in the circumstances. The superior courts have a discretion to decline to exercise their jurisdiction if the normal trial and appeal process is better suited to vindicate the interests at stake. But this discretion should be exercised with due regard to the constitutionally mandated need to provide prompt and effective enforcement of Charter rights, especially when an ongoing and continuing violation of a Charter right is alleged and the superior court is being asked to exercise its traditional function to determine the legality of an ongoing deprivation of liberty.
The review requested in this case does not exceed the jurisdictional nature of the review contemplated by way of habeas corpus. A conviction and sentence rendered under the wrong provisions of the Criminal Code clearly constitutes jurisdictional error. The defect is apparent on the face of the warrant of committal and an appreciation of the error does not require a re‑trial on the merits or an evaluation of the evidence presented at trial. In any event, the courts have, in general, not bound themselves to limited categories or definitions of jurisdictional review when the liberty of the subject was at stake. This trend should be affirmed where habeas corpus is sought as a Charter remedy and distinctions which have become uncertain, technical, artificial and, most importantly, non‑purposive should be rejected. Indeed, a purposive approach should be applied to the administration of Charter remedies as well as to the interpretation of Charter rights and, in particular, should be adopted when habeas corpus is the requested remedy. That remedy has traditionally been used and is admirably suited to the protection of the citizen's fundamental right to liberty and the right not to be deprived of it except in accordance with the principles of fundamental justice. Charter relief should not be denied by overly rigid rules. Here, a purposive and expansive approach to the remedy of habeas corpus leads to the conclusion that the writ is appropriately used to review the legality of the significant deprivation of liberty inherent in the operation of the parole ineligibility provision. This review can take place without either circumventing the appeal process or becoming de facto an appeal on the merits. The role of habeas corpus as a remedy under s. 24(1) of the Charter reinforces the policy of flexibly and generously adapting the writ in order that it continue to protect liberty interests now constitutionally protected under the Charter . Finally, to deny the appellant Charter relief because she received her criminal trial and sentencing under the wrong Criminal Code provisions in a superior court of criminal jurisdiction and not in an inferior court is completely unacceptable, given the interests that are at stake. Illegalities in a sentence given by a superior court should not escape review by way of habeas corpus where the process of the court itself demonstrates vitiating error.
The current operation of the condition in appellant's sentence‑‑the 25‑year period of parole ineligibility‑‑infringes her s. 7 residual liberty interest and this infringement was not effected in accordance with the principles of fundamental justice. It is fundamental to any legal system which recognizes "the rule of law" that an accused must be tried and punished under the law in force at the time the offence is committed. This did not happen in this case and a comparison of the relevant legislation indicates that the appellant prima facie was prejudiced by not being tried and punished under the proper law. Appellant is therefore entitled under s. 24(1) of the Charter to a declaration of eligibility for parole without having to prove that it was ineluctable that she would only have received a sentence of life imprisonment with eligibility for parole after 10 years. Declaratory relief has been recognized by this Court as an effective and flexible remedy for the settlement of real disputes. Moreover, this Court, having assumed jurisdiction over the subject matter and the person on this appeal from a denial of habeas corpus, can exercise its broad discretion under s. 24(1) of the Charter to order any remedy within its jurisdiction which it considers appropriate and just in the circumstances. The Parole Board is, however, the final arbiter of whether and when she should be released on parole.
Per Dickson C.J. and Beetz J. (dissenting): Appellant's continued incarceration with no parole eligibility for 25 years cannot be challenged under s. 7 without retrospectively applying the Charter either to s. 27(2) of the Criminal Law Amendment Act (No. 2), 1976, the provision which endorsed the retrospective application of the amended provisions of the Criminal Code enacted after the commission of the offence, or to the conviction and sentence which s. 27(2) validated. While section 7 may apply to ongoing states of affairs and while the appellant's ongoing or continuing incarceration subject to extended parole ineligibility constitutes an ongoing deprivation of liberty within the meaning of s. 7 , it has not been demonstrated that there was an ongoing violation of s. 7 . The appellant's argument that there is an ongoing violation of s. 7 is totally dependent on the argument that the original conviction and sentence would not have survived Charter scrutiny if they had been pronounced when the Charter was in force. A current Charter violation cannot be based on past conditional Charter transgressions. It is only by virtue of asking whether the ongoing deprivation is contrary to a principle of fundamental justice that an ongoing violation of s. 7 may be found. However, the principle of fundamental justice invoked‑‑that an accused person must be tried and punished under the law in force at the time of the offence‑‑in essence requires this Court to evaluate a pre‑Charter act‑‑the conviction and sentence endorsed by s. 27(2) ‑‑according to Charter standards. This involves a retrospective application of the Charter in the same way that an attempt to apply s. 7 directly to a pre‑Charter deprivation would involve retrospectivity.
Even if initially invalid or improper, appellant's conviction and sentence were statutorily endorsed by the s. 27(2) transitional provision. Section 27(2), in combination with s. 613 of the Criminal Code , validated the wrongful application of the new provisions to the appellant. This validating effect cured the illegality and it therefore ceased to flow forward in time and taint the ongoing post‑Charter deprivation of liberty. Thus, the appellant's extended parole ineligibility cannot be challenged under s. 7 on the basis that there is an ongoing deprivation of liberty which was improper prior to the Charter and which continues to be improper after the Charter .
Cases Cited
By Wilson J.
Distinguished: R. v. Milne, [1987] 2 S.C.R. 512; referred to: R. v. Miller, [1985] 2 S.C.R. 613; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Morin v. National Special Handling Unit Review Committee, [1985] 2 S.C.R. 662; Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Stevens, [1988] 1 S.C.R. 1153; R. v. James (1986), 27 C.C.C. (3d) 1, aff'd [1988] 1 S.C.R. 669; R. v. Antoine (1983), 5 C.C.C. (3d) 97; R. v. Dickson and Corman (1982), 3 C.C.C. (3d) 23; Miller and Cockriell v. The Queen, [1977] 2 S.C.R. 680; R. v. Logan (1986), 51 C.R. (3d) 326; Mitchell v. Attorney General of Ontario (1983), 35 C.R. (3d) 225; R. v. Konechny (1983), 10 C.C.C. (3d) 233; Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; Dubois v. The Queen, [1985] 2 S.C.R. 350; Re McDonald and The Queen (1985), 21 C.C.C. (3d) 330; R. v. Longtin (1983), 5 C.C.C. (3d) 12; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Jack and Charlie v. The Queen, [1985] 2 S.C.R. 332; R. v. Lucas; R. v. Neely (1986), 27 C.C.C. (3d) 229; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Riel (1885), 2 Man. L.R. 302; Ex parte Stather (1886), 25 N.B.R. 374; R. v. Holmes, [1932] 3 W.W.R. 76; Laflamme v. Renaud (1945), 84 C.C.C. 153; R. v. Rahey, [1987] 1 S.C.R. 588; Sanders v. The Queen, [1970] S.C.R. 109; Antares Shipping Corp. v. The Ship "Capricorn", [1977] 2 S.C.R. 422; Re Krakowski and The Queen (1983), 4 C.C.C. (3d) 188; Re Anson and The Queen (1983), 4 C.C.C. (3d) 119; Argentina v. Mellino, [1987] 1 S.C.R. 536; Re Trepanier (1885), 12 S.C.R. 111; Re Sproule (1886), 12 S.C.R. 140; Goldhar (No. 2) v. The Queen, [1960] S.C.R. 431; Morrison v. The Queen, [1966] S.C.R. 356; Karchesky v. The Queen, [1967] S.C.R. 547; Korponay v. Kulik, [1980] 2 S.C.R. 265; Wilson v. The Queen, [1983] 2 S.C.R. 594; Ex parte Risby (1975), 24 C.C.C. (2d) 211; Re Arrigo and The Queen (1986), 29 C.C.C. (3d) 77; Re Cadeddu and The Queen (1982), 4 C.C.C. (3d) 97; Swan v. Attorney General of British Columbia (1983), 35 C.R. (3d) 135; Lussa v. Health Science Centre (1983), 9 C.R.R. 350; MacAllister v. Director of Centre de Reception (1984), 40 C.R. (3d) 121; Re Marshall and The Queen (1984), 13 C.C.C. (3d) 73; Re Jenkins (1984), 8 C.R.R. 142; Jollimore v. Attorney‑General of Nova Scotia (1986), 24 C.R.R. 28; Balian v. Regional Transfer Board (1988), 62 C.R. (3d) 258; Re Hass and The Queen (1978), 40 C.C.C. (2d) 202; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Masella v. Langlais, [1955] S.C.R. 263; Preiser v. Rodriguez, 411 U.S. 475 (1973); Solosky v. The Queen, [1980] 1 S.C.R. 821; Jones v. Cunningham, 371 U.S. 236 (1962); R. v. Wigman, [1987] 1 S.C.R. 246; R. v. Gamble and Nichols (1978), 40 C.C.C. (2d) 415.
By Dickson C.J. (dissenting)
R. v. Milne, [1987] 2 S.C.R. 512; R. v. Stevens, [1988] 1 S.C.R. 1153; R. v. James (1986), 27 C.C.C. (3d) 1, aff'd [1988] 1 S.C.R. 669; Mitchell v. Attorney General of Ontario (1983), 35 C.R. (3d) 225; R. v. Konechny (1983), 10 C.C.C. (3d) 233; R. v. Gamble and Nichols (1978), 40 C.C.C. (2d) 415.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a), 7 , 9 , 11 (b), (i), 12 , 15 , 24(1) .
Criminal Code, R.S.C. 1970, c. C‑34, ss. 21, 214 [am. R.S.C. 1970, c. C‑35, s. 4(1)(a); rep. & subs. 1973‑74, c. 38, ss. 2, 10, 11; rep. & subs. 1974‑75‑76, c. 105, s. 4], 218 [am. 1973‑74, c. 38, s. 3; rep. & subs. 1974‑75‑76, c. 105, ss. 5, 28], 669 [rep. & subs. 1974‑75‑76, c. 105, s. 21], 603(1)(b), 613 [am. 1974‑75‑76, c. 93, s. 75], 710.
Criminal Law Amendment (Capital Punishment) Act, S.C. 1973‑74, c. 38, ss. 2, 3.
Criminal Law Amendment Act (No. 2), 1976, S.C. 1974‑75‑76, c. 105, ss. 4, 5, 21, 27, 28.
Authors Cited
Black, William. "Charter of Rights ‑‑Application to Pre‑Enactment Events", (1982) U.B.C. L. Rev. (Charter Ed.) 59.
Canada. Canadian Sentencing Commission. Sentencing Reform: A Canadian Approach. Ottawa: The Commission, 1987.
Harvey, D. A. Cameron. The Law of Habeas Corpus in Canada. Toronto: Butterworths, 1974.
Létourneau, Gilles. The Prerogative Writs in Canadian Criminal Law and Procedure. Toronto: Butterworths, 1976.
Sharpe, Robert J. The Law of Habeas Corpus. Oxford: Clarendon Press, 1976.
APPEAL from a judgment of the Ontario Court of Appeal (1987), 3 W.C.B. (2d) 88, affirming a judgment of Watt J. (1986), 17 W.C.B. 188, dismissing appellant's application for habeas corpus with certiorari in aid. Appeal allowed, Dickson C.J. and Beetz J. dissenting.
Colin K. Irving, Allan Manson and Franklin S. Gertler, for the appellant.
Ivan Whitehall, Q.C., and Ron Fainstein, Q.C., for the respondent.
Manfred DeLong, for the intervener the Attorney General for Alberta.
Jeff Casey, for the intervener the Attorney General for Ontario.
The reasons of Dickson C.J. and Beetz J. were delivered by
1. The Chief Justice (dissenting)‑‑I have read the reasons of Justice Wilson, but, with considerable regret, have concluded that I cannot concur. Wilson J. takes the view that the appellant, Ms. Gamble, is suffering a continuing deprivation of liberty in the form of extended parole ineligibility which is contrary to the principle of fundamental justice that an accused person must be tried and punished under the law in force at the time an offence is committed. Consequently, Wilson J. finds that the appellant is suffering an ongoing violation of her rights under s. 7 of the Canadian Charter of Rights and Freedoms which is not saved by s. 1 of the Charter . I respectfully disagree with this conclusion as, in my view, the application of s. 7 on the facts of this case involves a retrospective application of the Charter .
2. I am grateful to Wilson J. for her discussion of the facts and résumé of the lower court judgments and I adopt such discussion and résumé.
I
Statutory Provisions
3. For ease of reference, I shall reproduce the pertinent statutory provisions which also appear in the reasons of Wilson J. and briefly place them in context. At the time the appellant committed the offence (March 12, 1976) for which she is now incarcerated, s. 214 (the old s. 214 ) and s. 218 (the old s. 218) of the Criminal Code, R.S.C. 1970, c. C‑34 (as amended by S.C. 1973‑74, c. 38, ss. 2 and 3) were in force:
214. (1) Murder is punishable by death or is punishable by imprisonment for life.
(2) Murder is punishable by death, in respect of any person, where such person by his own act caused or assisted in causing the death of
(a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff's officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties, or
(b) a warden, deputy warden, instructor, keeper, gaoler, guard or other officer or permanent employee of a prison, acting in the course of his duties,
or counselled or procured another person to do any act causing or assisting in causing the death.
(3) All murder other than murder punishable by death is punishable by imprisonment for life.
218. (1) Every one who commits murder punishable by death is guilty of an indictable offence and shall be sentenced to death.
(2) Every one who commits murder punishable by imprisonment for life is guilty of an indictable offence and shall be sentenced to imprisonment for life.
...
(5) Notwithstanding anything in the Parole Act and unless the Parliament of Canada otherwise directs, no person
(a) upon whom a sentence of imprisonment for life in respect of murder has been imposed after the coming into force of this subsection,
...
(c) in respect of whom a sentence of death in respect of murder has been commuted after the coming into force of this section to imprisonment for life,
shall be released pursuant to the terms of a grant of parole under the Parole Act unless
(d) at least ten years of that sentence calculated in the manner described in subsection (7) have been served, and
(e) the National Parole Board, by a vote of at least two‑thirds of its members, has made a decision that parole under that Act be granted to that person.
(6) Notwithstanding paragraph (5)(d), the judge presiding at the trial of an accused who is or was convicted of murder or, where such judge is unable to do so, another judge of the same court may
(a) at the time of sentencing of the accused, in a case referred to in paragraph (5)(a), or
(b) at any time on application made to him within a reasonable time after
(i) the coming into force of this section, in a case referred to in paragraph (5)(b), or
(ii) the execution of an instrument or writing mentioned in subsection 684(2) declaring that a sentence of death has been commuted, in a case referred to in paragraph (5)(c),
having regard to the character of the accused, the nature of the offence and the circumstances surrounding its commission, and to any recommendation made pursuant to subsection (8), by order substitute for the number of years specified in paragraph (5)(d) a number of years that is not more than twenty but more than ten.
Instead of being prosecuted and sentenced under these provisions, the appellant was indicted and convicted under an amended s. 214 of the Criminal Code (the new s. 214 ) which was proclaimed in force on July 26, 1976, Criminal Law Amendment Act (No. 2), 1976, S.C. 1974‑75‑76, c. 105:
214. (1) Murder is first degree murder or second degree murder.
(2) Murder is first degree murder when it is planned and deliberate.
...
(4) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the victim is
(a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff's officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties;
(b) a warden, deputy warden, instructor, keeper, gaoler, guard or other officer or permanent employee of a prison, acting in the course of his duties; or
(c) a person working in a prison with the permission of prison authorities and acting in the course of his work therein.
The appellant was sentenced under the new ss. 218 and 669 of the Criminal Code which were enacted and proclaimed into force as part of the same 1976 amendments:
218. (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.
669. The sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be,
(a) in respect of a person who has been convicted of high treason or first degree murder, that he be sentenced to imprisonment for life without eligibility for parole until he has served twenty‑five years of his sentence;
(b) in respect of a person who has been convicted of second degree murder, that he be sentenced to imprisonment for life without eligibility for parole until he has served at least ten years of his sentence or such greater number of years, not being more than twenty‑five years, as has been substituted therefor pursuant to section 671;
As the appellant was convicted of first degree murder under the new s. 214 , she was sentenced to life imprisonment under the new s. 669 (a) with no eligibility for parole for 25 years. If the appellant had been found guilty of murder punishable by life imprisonment, as opposed to murder punishable by death, under the old s. 214 , she would have been ineligible for parole for not more than 20 but also not less than 10 years pursuant to the old s. 218 . It is this difference in parole ineligibility which forms the basis for the appellant's s. 7 claim.
4. On appeal of her conviction to the Alberta Court of Appeal, that Court found that the appellant had been tried under the wrong law: R. v. Gamble and Nichols (1978), 40 C.C.C. (2d) 415. The old, not new, Criminal Code provisions should have been applied as the new provisions were not in force at the time of the offence. The Alberta Court of Appeal would have directed a new trial if it had not been for the transitional s. 27(2) of the Criminal Law Amendment Act (No. 2), 1976:
27. (1) ...
(2) Where proceedings in respect of any offence of treason, piracy or murder, whether punishable by death or not, were commenced before the coming into force of this Act, and a new trial of a person for the offence has been ordered and the new trial is commenced after the coming into force of this Act, the new trial shall be commenced by the preferring of a new indictment before the court before which the accused is to be tried, and thereafter the offence shall be dealt with, inquired into, tried and determined, and any punishment in respect of the offence shall be imposed as if it had been committed after the coming into force of this Act.
Because this draconian provision would have resulted in the new s. 214 being applied once again if a new trial were ordered, the Court felt it had no recourse but to find that no substantial wrong or miscarriage of justice had occurred.
5. The appellant applied for leave to appeal to this Court but her application was dismissed on October 3, 1978, [1978] 2 S.C.R. vii.
II
The Issue
6. In my view, the central issue is whether the appellant's continued incarceration with no parole eligibility for 25 years may be challenged under s. 7 without retrospectively applying the Charter either to s. 27(2) , the provision which endorsed the retrospective application of the amended provisions of the Criminal Code enacted after the commission of the offence, or to the conviction and sentence which s. 27(2) validated. This Court, in R. v. Milne, [1987] 2 S.C.R. 512, at pp. 527‑28, left open the possibility that the execution or the carrying out of a sentence (which may also be referred to in this context as the punishment) can be reviewed under the Charter without applying the Charter to the original pronouncement of the sentence. The appellant's s. 7 claim in this case is that the present application of the extended parole ineligibility aspects of her original sentence constitutes an ongoing or continuing deprivation of liberty contrary to principles of fundamental justice.
III
Retrospectivity
7. I agree with Wilson J. that in order to determine whether the Charter is applicable law, a court must ask whether the Charter is in force at the time at which the act or event which is alleged to infringe the Charter took place or had its effect. As this Court recently stated in R. v. Stevens, [1988] 1 S.C.R. 1153, at p. 1158, the following formulations of Tarnopolsky J.A. in R. v. James (1986), 27 C.C.C. (3d) 1, at pp. 21 and 25, aff'd [1988] 1 S.C.R. 669, are correct:
[O]ne applies the law in force at the time when the act that is alleged to be in contravention of a Charter right or freedom occurs ...[I]t is important that actions be determined by the law, including the Constitution, in effect at the time of the action.
8. However, this general statement does not yield a ready answer in every case as one still has to fix in time the relevant act. As demonstrated by the different conclusions of the majority and minority in Stevens, supra, this is not necessarily a straightforward task. In Stevens, the central disagreement was this: do the words "whether or not he believes that she is fourteen years of age or more" in s. 146(1) of the Criminal Code take effect for the purposes of s. 7 analysis at the time the alleged offence was committed or at the time of the trial? Section 146(1) prohibits a male from having sexual intercourse with a female person under 14 years of age who was not also the male's wife.
9. Wilson J. (Lamer and L'Heureux‑Dubé JJ. concurring), for the minority, took the view that the relevant act was the denial of a mistake of fact defence at the time of the trial which had taken place after the Charter had entered into force. It followed, in Wilson J.'s view, that the post‑Charter trial for a pre‑Charter commission of the s. 146(1) offence violated s. 7 of the Charter as it was contrary to principles of fundamental justice to convict and imprison someone, thereby depriving them of liberty, without proof of mens rea but instead on the basis of proof of the actus reus alone.
10. The majority of this Court disagreed. Le Dain J. (Dickson C.J. and Beetz, McIntyre, and La Forest JJ. concurring) held that the impugned section of s. 146(1) constituted one of the mental elements of the offence, and therefore took effect at the time of the commission of the offence. Because the offence took place prior to the Charter , the Charter could not be used to challenge the fact that the above‑quoted words denied the accused the possibility of a mistake of fact defence. Le Dain J. concluded with the following statement at p. 1159:
The liability imposed by law would ordinarily be established at trial in a particular case in accordance with the relevant substantive law, including any applicable constitutional provisions, as it existed at the time the offence was committed. It would give a retrospective application to s. 7 of the Charter to apply it to s. 146(1) of the Code merely because the liability imposed by s. 146(1) continued after the Charter came into force. It would be to change the applicable substantive law with retrospective effect.
11. The question in this appeal is whether the appellant's s. 7 claim similarly amounts to a retrospective application of the Charter . For ease of reference, I reproduce s. 7 below:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
In identifying the relevant act, Wilson J. in the case at bar focusses on the present deprivation of the appellant's liberty. I agree with her that s. 7 may apply to ongoing states of affairs and that the appellant's ongoing or continuing incarceration subject to extended parole ineligibility constitutes an ongoing deprivation of liberty within the meaning of s. 7 . However, it is necessary to show more than an ongoing deprivation of liberty; it must also be shown that there is an ongoing violation of s. 7 .
12. The appellant's argument that there is an ongoing violation of s. 7 (or, put another way, that the ongoing deprivation is fundamentally unjust) is totally dependent on the argument that the original conviction and sentence would not have survived Charter scrutiny if they had been pronounced when the Charter was in force. A current Charter violation cannot be based on past conditional Charter transgressions. It is only by virtue of asking whether the ongoing deprivation is contrary to a principle of fundamental justice that an ongoing violation of s. 7 may be found. However, the principle of fundamental justice invoked by Wilson J. (that an accused person must be tried and punished under the law in force at the time an offence is committed) in essence requires this Court to evaluate a pre‑Charter act (here, the conviction and sentence endorsed by s. 27(2) ) according to Charter standards. In my view, this involves a retrospective application of the Charter in the same way that an attempt to apply s. 7 directly to a pre‑Charter deprivation would involve retrospectivity.
13. It is clear that Stevens does not directly govern the present case given the focus in Stevens on a statutory provision not at issue here and, more importantly, given the fact that Ms. Gamble's liability to imprisonment was not determined by the relevant substantive laws at the time of the offence. Wilson J. has placed considerable emphasis on this aspect of the s. 7 claim in order to point out that it cannot be said that the appellant is attempting to challenge the applicable substantive law at the time at which she committed the offence. Reliance is placed on the following statement by La Forest J. for the majority in Milne, supra, at p. 526:
[L]ike any other person who is properly convicted and sentenced, he must otherwise serve his sentence according to its tenor.
Wilson J. contends that, since the wrong substantive law was applied to the appellant, she was not "properly" convicted and sentenced. This, it would seem, provides the basis for the principle of fundamental justice posited by Wilson J., namely, that an accused person must be tried and punished under the law in force at the time an offence is committed.
14. The appellant cannot, in my view, invoke the Milne principle because, even if initially invalid or improper, her conviction and sentence were statutorily endorsed by the s. 27(2) transitional provision. This is apparent from the application of s. 613 by the Alberta Court of Appeal on the appellant's appeal from conviction. Clearly, the new s. 218 and s. 669 (a) sentencing provisions are automatically triggered upon a conviction for first degree murder under the new s. 214 . Any appeal by the appellant of her sentence, separate from her unsuccessful appeal of conviction, would presumably have failed by virtue of an application of s. 27(2) in combination with s. 613 . It will be recalled that s. 27(2) read, in part:
...and thereafter the offence shall be dealt with, inquired into, tried and determined, and any punishment in respect of the offence shall be imposed as if it had been committed after the coming into force of this Act. [Emphasis added.]
Alternatively, any appeal from sentence may also have floundered on s. 603(1) (b) of the Criminal Code which reads:
603. (1) A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal
...
(b) against the sentence passed by the trial court, with leave of the court of appeal or a judge thereof unless that sentence is one fixed by law.
Since the ss. 218(1) and 669 (a) sentencing provisions are "fixed by law" for convictions for first degree murder, it is arguable that the Alberta Court of Appeal's upholding of the appellant's conviction in R. v. Gamble and Nichols, supra, precludes a subsequent appeal of her sentence because that sentence would be deemed "fixed by law".
15. The end result is that the initial wrongful application of the new provisions to the appellant was cured or validated by the operation of s. 27(2) in combination with s. 613 of the Criminal Code . I can see no principled reason for limiting La Forest J.'s statement in Milne only to convictions and sentences that were valid in law at the time of the conviction and pronouncement of the sentence. The validating effect of s. 27(2) cured the illegality which therefore ceased to flow forward in time and taint the ongoing post‑Charter deprivation of liberty. Unless Milne is extended to the situation where a conviction and sentence are validated in law before the Charter entered into force, a pre‑Charter statute (s. 27(2) ) could be indirectly attacked by ignoring or jumping over it in order to preserve the initially wrongful conviction and sentence. Thus, the appellant's extended parole ineligibility cannot be challenged under s. 7 on the basis that there is an ongoing deprivation of liberty which was improper prior to the Charter and which continues to be improper after the Charter .
16. To the extent that Wilson J. holds that the appellant's continued deprivation of liberty has become unlawful only as a result of enactment of the Charter , I fail to see how this does not also implicitly involve a retrospective application of s. 7 . Evaluation of the post‑Charter execution of an originally valid, or subsequently validated, pre‑Charter sentence involves a non‑retrospective application of s. 7 only if the fundamental injustice can be determined independently of the validity of pre‑Charter events. In this case, however, the extended parole ineligibility of the accused is only fundamentally unjust if she should never have been sentenced to the punishment now being challenged. As discussed above, the only way to question the validity of the sentence is to measure that sentence's validity against Charter standards in such a way that the validation of the sentence by s. 27(2) is ignored.
17. By way of contrast, the argument of the appellant is not that it is unjust per se to be denied parole eligibility for 25 years, as is currently mandated for all those convicted under the new s. 214 of first degree murder. If this were the argument, then it would indeed be irrelevant whether the source of this ineligibility was a pre‑Charter or a post‑Charter sentence, and, therefore, a non‑retrospective evaluation of the execution of the sentence on its own terms would be involved. The point I am making is not that there is a principle of fundamental justice that minimum parole eligibility can be unjust, but that such a principle, if it existed, would not involve the problem of retrospectivity.
IV
Conclusion
18. I cannot accept that an ongoing violation of s. 7 can be found in this particular case without applying s. 7 to either s. 27(2) or to the sentence which it validated. As should be clear from the discussion at the end of the preceding section, I am not saying that post‑Charter s. 7 challenges to the execution of pre‑Charter sentences must necessarily involve a retrospective evaluation of the original valid or validated sentence. Nor do I wish to be understood as precluding the invocation of ss. 9 or 12 of the Charter to challenge the carrying out of a sentence validly pronounced prior to the Charter : see Mitchell v. Attorney General of Ontario (1983), 35 C.R. (3d) 225 (Ont. H.C.), and R. v. Konechny (1983), 10 C.C.C. (3d) 233 (B.C.C.A.)
19. I would dismiss the appeal on the ground that the appellant's s. 7 claim involves a retrospective application of the Charter .
The judgment of Lamer, Wilson and
L'Heureux‑Dubé JJ. was delivered by
20. Wilson J.‑‑The appellant's claim in this case is that she has been deprived of her liberty under s. 7 of the Charter of Rights and Freedoms in a way which offends the principles of fundamental justice. She seeks relief under s. 24(1) of the Charter .
I. The