Canada (Attorney General) v. Whaling

Canada (Attorney General) v. Whaling
Collection
Supreme Court Judgments
Date
2014-03-20
Neutral citation
2014 SCC 20
Report
[2014] 1 SCR 392
Case number
35024
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 35024
Decision Content
SUPREME COURT OF CANADA
Citation: Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392
Date: 20140320
Docket: 35024
Between:
Attorney General of Canada
Appellant
and
Christopher John Whaling
Respondent
And between:
Attorney General of Canada
Appellant
and
Judith Lynn Slobbe
Respondent
And between:
Attorney General of Canada
Appellant
and
Cesar Maidana
Respondent
- and -
Attorney General of Ontario and
British Columbia Civil Liberties Association
Interveners
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
Reasons for Judgment:
(paras. 1 to 89)
Wagner J. (McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. concurring)
Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392
Attorney General of Canada Appellant
v.
Christopher John Whaling Respondent
‑ and ‑
Attorney General of Canada Appellant
v.
Judith Lynn Slobbe Respondent
‑ and ‑
Attorney General of Canada Appellant
v.
Cesar Maidana Respondent
and
Attorney General of Ontario and
British Columbia Civil Liberties Association Interveners
Indexed as: Canada (Attorney General) v. Whaling
2014 SCC 20
File No.: 35024.
2013: October 15; 2014: March 20.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Charter of Rights — Double jeopardy — Repeal of early parole provisions applying retrospectively to offenders already sentenced — Whether retrospective application constitutes “punish[ment] . . . again” thereby infringing s. 11 (h) of Canadian Charter of Rights and Freedoms — If so, whether infringement reasonable limit prescribed by law as can be demonstrably justified in free and democratic society under s. 1 of Charter — Abolition of Early Parole Act, S.C. 2011, c. 11, s. 10(1) .
W, S and M were all serving federal penitentiary sentences. As first‑time, non‑violent offenders, all three were eligible for accelerated parole review (“APR”) under the system in place at the time of their sentencing. With the coming into force of the Abolition of Early Parole Act (“AEPA ”), APR was abolished. Section 10(1) of the AEPA made the abolition of APR apply retrospectively to offenders already serving their sentences. This changed the timing of eligibility for day parole: eligibility after the offender had served one sixth of the sentence or six months was replaced with eligibility six months before the full parole eligibility date. Because the effect of the APR’s abolition was to delay the day parole eligibility dates of W, S and M, they challenged the constitutionality of s. 10(1) . Both the trial judge and the Court of Appeal held that s. 10(1) infringed their right guaranteed by s. 11 (h) of the Charter not to be “punished . . . again” for an offence and that the infringement was not saved under s. 1 .
Held: The appeal should be dismissed.
Section 10(1) of the AEPA infringes s. 11 (h) of the Charter . The introductory words to s. 11 provide that its subject is a “person charged with an offence”. Paragraph (h) then provides that this person has the right, if 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” indicates that s. 11 (h)’s protection against additional punishment is independent of its protection against being tried again. In other words, the protection applies to both the harassment of multiple trials and the harassment of additional punishment. 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).
While the academic literature focuses on the fine points of what constitutes a second proceeding for the purposes of s. 11 (h), this does not preclude its application to cases of “punish[ment] . . . again” in which no such proceeding took place. If anything, the lack of literature on this subject speaks less to the scope of the provision than to the relative infrequency of such infringements.
Even in the few s. 11 (h) cases, such as R. v. Wigglesworth, [1987] 2 S.C.R. 541, this Court found that the protection against double jeopardy could be triggered by proceedings that are criminal in nature or by “true penal consequences”. More recently, in R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, the Court articulated a test for determining whether a given consequence or sanction constitutes punishment. However, the question in this case eludes either test. Rather than requiring us to determine whether a discrete sanction is punitive in nature, this case requires us to determine whether retrospective changes to parole eligibility, which modify the manner in which an existing sanction is carried out, constitute punishment. The alleged punishment is neither a second proceeding nor a sanction in the sense contemplated in Rodgers. Rather, the offender’s expectations about the original punishment or sanction have been frustrated and this is said to constitute new punishment.
The effect of every retrospective change will be context‑specific. The dominant consideration in each case will be the extent to which an offender’s expectation of liberty has been thwarted by retrospective legislative action. It is the retrospective frustration of an expectation of liberty that constitutes punishment. Indeed, retrospective change that has the effect of automatically lengthening the offender’s period of incarceration represents one of the clearest of cases of retrospective double punishment under of s. 11 (h).
Whether less drastic retrospective changes to parole constitute double punishment will depend on the circumstances of the particular case. Generally speaking, a retrospective change to the conditions of a sentence will not be considered punitive if it does not substantially increase the risk of additional incarceration. Indicators of a lower risk of additional incarceration include a process in which individualized decision making focused on the offender’s circumstances continues to prevail and procedural rights continue to be guaranteed in the determination of parole eligibility. A change that directly results in an extension of the period of incarceration without regard to the offender’s individual circumstances and without procedural safeguards in the assessment process will clearly violate s. 11 (h).
In this case, the purposes served by applying the AEPA to all offenders — rehabilitation, reintegration, public safety and confidence in the administration of justice — are not in issue. However, the fact that Parliament had legitimate authority to legislate for such purposes does not shield the AEPA from constitutional scrutiny with regard to its effect.
The effect of the AEPA was to deprive W, S and M of the possibility of being considered for early day parole and to extend their minimum period of incarceration. In this way, s. 10(1) had the effect of punishing W, S and M again. Because that effect was automatic and without regard to their individual circumstances, theirs is one of those “clearest of cases”. Indeed, the imposition of delayed parole eligibility in this case is analogous to the imposition of delayed parole eligibility by a judge under the Criminal Code as part of the sentence. Imposing this same consequence by means of retrospective legislation triggers the protection against double punishment set out in s. 11 (h).
The infringement by s. 10(1) of the AEPA of s. 11 (h) of the Charter cannot be saved under s. 1 . The AEPA’s objectives to reform parole administration and to maintain confidence in the justice system are pressing and substantial and its retrospective application is rationally connected to those objectives; however, the Crown has not discharged its burden of proving that there was no less intrusive an alternative to that retrospective application. Indeed, prospective application — as opposed to retrospective — was an alternative available to Parliament that would have enabled it to attain its objectives without infringing s. 11 (h). The appeal is dismissed and the remedy ordered by the trial judge upheld.
Cases Cited
Distinguished: R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554; R. v. Wigglesworth, [1987] 2 S.C.R. 541; referred to: R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. Chaisson, [1995] 2 S.C.R. 1118; R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41; Cunningham v. Canada, [1993] 2 S.C.R. 143; Kienapple v. The Queen, [1975] 1 S.C.R. 729; R. v. Van Rassel, [1990] 1 S.C.R. 225; R. v. Shubley, [1990] 1 S.C.R. 3; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Gamble, [1988] 2 S.C.R. 595; R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Généreux, [1992] 1 S.C.R. 259; R. v. Pearson, [1992] 3 S.C.R. 665; Schachter v. Canada, [1992] 2 S.C.R. 679.
Statutes and Regulations Cited
Abolition of Early Parole Act, S.C. 2011, c. 11, ss. 3 , 5 , 10(1) .
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (g), (h), (i).
Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 102 , 119 , 119.1 [ad. 1997, c. 17, s. 21(1); rep. 2011, c. 11, s. 3], 122, 125 [rep. 2011, c. 11, s. 5], 126 [idem], 126.1 [idem], 140.
Criminal Code, R.S.C. 1985, c. C‑46, s. 743.6(1) .
Treaties and Other International Instruments
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, art. 14.7.
Authors Cited
Canada. House of Commons. House of Commons Debates, vol. 145, No. 131, 3rd Sess., 40th Parl., February 15, 2011, p. 8205.
Canada. House of Commons. Standing Committee on Justice and Human Rights. Sub‑committee on Corrections and Conditional Release Act . “A Work in Progress: The Corrections and Conditional Release Act ”, May 2000 (online: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=2537364&Language=E&Mode=1&Parl=36&Ses=2).
Canadian Criminal Justice Association. “Comments on ‘Directions for Reform’: A Public Consultation Package on Sentencing, Corrections and Conditional Release”, December 7, 1990.
Correctional Service of Canada Review Panel. Report of the Correctional Service of Canada Review Panel: A Roadmap to Strengthening Public Safety. Ottawa: Minister of Public Works and Government Services Canada, 2007.
Friedland, M. L. “Legal Rights Under The Charter ” (1982), 24 Crim. L.Q. 430.
Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp., vol. 2. Toronto: Carswell, 2007 (updated 2012, release 1).
Stuart, Don. Charter Justice in Canadian Criminal Law, 5th ed. Toronto: Carswell, 2010.
APPEAL from a judgment of the British Columbia Court of Appeal (Levine, D. Smith and Groberman JJ.A.), 2012 BCCA 435, 329 B.C.A.C. 118, 560 W.A.C. 118, 98 C.R. (6th) 346, 292 C.C.C. (3d) 502, [2012] B.C.J. No. 2258 (QL), 2012 CarswellBC 3357, affirming a decision of Holmes J., 2012 BCSC 944, 264 C.R.R. (2d) 160, [2012] B.C.J. No. 1312 (QL), 2012 CarswellBC 1879. Appeal dismissed.
Cheryl D. Mitchell and Ginette Gobeil, for the appellant.
Eric Purtzki and Garth Barriere, for the respondents.
David Lepofsky and Mabel Lai, for the intervener the Attorney General of Ontario.
Michael Jackson, Q.C., and Joana Thackeray, for the intervener the British Columbia Civil Liberties Association.
The judgment of the Court was delivered by
Wagner J. —
I. Introduction
[1] In this appeal, the Court revisits the definition of the term “punishment” in the context of s. 11 (h) of the Canadian Charter of Rights and Freedoms . The criminal law distinguishes between the sentence imposed on an offender and the conditions of the sentence. Changes to the conditions of a sentence, such as eligibility for parole, do not alter the sentence itself. This Court must decide whether retrospective changes to the conditions of a sentence may in some circumstances constitute “punishment” in violation of the s. 11 (h) right not to be punished twice for the same offence.
[2] This appeal results from Parliament’s conclusion that accelerated parole review, or APR, was not working. Established by legislation enacted in November 1992, APR was a simplified process that allowed first-time non-violent offenders to be considered for parole on the basis of a single question: Are there no reasonable grounds to believe that the offender, if released, is likely to commit a violent offence? (See the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA ”).)
[3] The Crown cites criticism of APR that dated back to its inception. Even before the legislation establishing APR was enacted, the Canadian Criminal Justice Association had expressed concerns about the violent recidivism test, noting that “[n]o system of predicting future behaviour can be safely based upon such a single factor.” It argued that APR would be available to some offenders who “have records with previous incarceration in Provincial institutions for offences including those of violence” (“Comments on ‘Directions for Reform’: A Public Consultation Package on Sentencing, Corrections and Conditional Release”, December 7, 1990, at p. 29 (A.R., vol. III, at p. 165)).
[4] Despite this and other criticism, the APR process was expanded in 1997 to include earlier eligibility for day parole: after six months, or one sixth of the sentence, whichever was longer, instead of six months before eligibility for full parole (S.C. 1997, c. 17, s. 21(1)).
[5] The Crown notes that criticism continued to be levelled at APR in the ensuing years. In a report presented in 2000, a parliamentary sub-committee, though recommending that APR be retained, also recommended “tightening the eligibility criteria” for APR so that offenders incarcerated for Schedule I or Schedule II offences under the CCRA would not qualify for it, and “changing the risk of recidivism criterion to be taken into account by the National Parole Board” to one of general recidivism (Sub-committee on Corrections and Conditional Release Act of the Standing Committee on Justice and Human Rights, “A Work in Progress: The Corrections and Conditional Release Act ”, May 2000, at para. 4.25 (online)).
[6] In a 2007 report, the Correctional Service of Canada Review Panel concluded that “statutory release and accelerated parole have both undermined discretionary release and generally have not proved as effective as discretionary release in mitigating violent reoffending” (Report of the Correctional Service of Canada Review Panel: A Roadmap to Strengthening Public Safety (2007), at p. 110).
[7] Purporting to respond to this criticism, Parliament repealed the relevant provisions. The Abolition of Early Parole Act, S.C. 2011, c. 11 (“AEPA ”), the relevant part of which came into force on March 28, 2011, eliminated APR and with it the possibility of earlier release. What is crucial in this appeal is that by virtue of s. 10(1) of the AEPA , the repeal applied retrospectively. Mr. Whaling, Ms. Slobbe and Mr. Maidana had all been convicted of serious, but non-violent, crimes at a time when APR remained in effect. Each of them would have been eligible for early day parole under the repealed provisions.
[8] The question before this Court is whether the retrospective application of the delayed eligibility for day parole to incarcerated offenders who had been sentenced before the APR provisions were repealed violated the respondents’ right, guaranteed by s. 11 (h) of the Charter , not to be punished anew for their offences.
[9] This appeal affords the Court the opportunity to revisit the purpose of s. 11 (h) and to define its scope. For the reasons that follow, I find that s. 11 (h) applies to the respondents’ claim. The retrospective application of delayed day parole eligibility violated the respondents’ s. 11 (h) right not to be “punished . . . again”, and that violation was not justified under s. 1 of the Charter .
[10] Having found that the specific right enshrined in s. 11 (h) was violated, I do not find it necessary to address the respondents’ claim with respect to the more general right guaranteed by s. 7 of the Charter .
II. Facts
[11] This is an appeal from a decision in which the British Columbia Court of Appeal upheld a summary trial decision of the British Columbia Supreme Court. Both courts found in the respondents’ favour.
[12] The respondents, Mr. Whaling, Ms. Slobbe and Mr. Maidana, were all serving federal penitentiary sentences. As first-time, non-violent offenders, all three were eligible for APR under the system in place at the time of their sentencing (s. 125(1) of the CCRA (now repealed)).
[13] APR was different from normal parole review in a few ways. First, the process was simplified. The APR application was automatic, which meant that eligible offenders were referred to the National Parole Board without having to apply for it (s. 126(4) of the CCRA (repealed)). The review was conducted on paper, without a hearing (s. 126(1) (repealed)). Second, the test for release was based on a presumptive standard that was lower than the one applicable to normal parole. After finding “no reasonable grounds to believe that the offender, if released, is likely to commit an offence involving violence”, the Board had no discretion to decide against releasing the offender (s. 126(2) (repealed)). Section 126.1 (repealed) extended these provisions to day parole, in addition to full parole.
[14] Third, and this is crucial to this appeal, beginning in 1997, the APR process for day parole was triggered at an earlier date than in the normal process: after the offender had served one sixth of the sentence or six months (whichever was longer), instead of six months before the full parole eligibility date (s. 119.1 (repealed)).
[15] With the coming into force of the AEPA , APR (including early day parole eligibility), was abolished. Sections 3 and 5 of the AEPA repealed the CCRA ’s APR provisions (ss. 119.1 , 125 , 126 and 126.1 , cited above), while s. 10(1) of the AEPA made the abolition of APR apply retrospectively to offenders already serving their sentences. Section 10(1) reads:
10. (1) Subject to subsection (2), the accelerated parole review process set out in sections 125 to 126.1 of the Corrections and Conditional Release Act , as those sections read on the day before the day on which section 5 comes into force, does not apply, as of that day, to offenders who were sentenced, committed or transferred to penitentiary, whether the sentencing, committal or transfer occurs before, on or after the day of that coming into force.
[16] In other words, APR, which the AEPA abolished, “does not apply” even if the offender was sentenced before the AEPA came into force. Instead of APR, the normal parole provisions of the CCRA would now apply. This changed the timing of eligibility for day parole: eligibility after the offender had served one sixth of the sentence or six months (repealed s. 119.1 ) was replaced with eligibility six months before the full parole eligibility date (s. 119 ). It also changed the review process for both day and full parole: automatic referral to the Board (repealed ss. 126(4) and 126.1 ) was eliminated, which meant that the offender would have to submit an application (s. 122 ), and the review on paper without a hearing (repealed s. 126(1) ) was replaced with the hearing and personal appearance by the offender required in the normal review process (s. 140 ). In addition, the repeal changed the test for granting parole: the lower, presumptive standard of violent recidivism, which left the Board no discretion to deny parole if the test was met (repealed s. 126(2) ), reverted to the more onerous one of “undue risk to society”, which does leave it with such a discretion (s. 102 ).
[17] The immediate effect of the repeal was to delay the day parole eligibility dates of all three respondents: Mr. Whaling’s by three months, Ms. Slobbe’s by nine months, and Mr. Maidana’s by twenty-one months.
[18] The respondents challenged the constitutionality of s. 10(1) of the AEPA by way of a summary trial in the British Columbia Supreme Court.
III. Judicial History
A. British Columbia Supreme Court, 2012 BCSC 944, 264 C.R.R. (2d) 160
[19] Holmes J., the summary trial judge, held that s. 10(1) of the AEPA infringed s. 11 (h) of the Charter because it amounted to additional punishment, and that it was not saved under s. 1 of the Charter .
[20] Holmes J. began by asking whether the abolition of APR amounted to punishment in violation of the respondents’ right under s. 11 (h) of the Charter , “if finally found guilty and punished for [an] offence, not to be tried or punished for it again”. She reasoned on the basis of R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, that “[s.] 11(h)’s protections carry on past trial, conviction (or acquittal), and sentence, to prevent any additional trial or punishment for the offence with which the person was once charged” (para. 46).
[21] On how to determine whether a given consequence constitutes “punishment”, Holmes J. quoted (at para. 52) the following passage from Rodgers (para. 63):
As a general rule, it seems to me that the consequence will constitute a punishment when it forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence and the sanction is one imposed in furtherance of the purpose and principles of sentencing.
She pointed out that delayed parole eligibility is clearly used as “punishment” in the context of criminal sentencing, citing several decisions of this Court, including R. v. Shropshire, [1995] 4 S.C.R. 227, R. v. Chaisson, [1995] 2 S.C.R. 1118, and R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41. Although there is a difference between the sentencing and parole processes, parole ineligibility imposed as part of a sentence under the Criminal Code, R.S.C. 1985, c. C-46 , is not materially different from parole ineligibility resulting from the retrospective amendment of the CCRA , since the objectives and functions of the two processes can and do overlap.
[22] Turning to s. 10(1) of the AEPA , Holmes J. found that there was “abundant evidence” that its purposes were punitive in nature (para. 112). She also found that the effect of the retrospective alteration of day parole eligibility was punitive, and noted in particular that this alteration would have a “significant actual effect on the way in which the two offenders who are still in prison will serve their sentences” (para. 113). Although she accepted, citing Cunningham v. Canada, [1993] 2 S.C.R. 143, that there are changes that can be made to corrections and parole law and policy without distorting the sentence imposed, in her view, “such changes do not include significant limitations, regardless of any exercise of the Board’s discretion, to the parole eligibility of offenders” who have already been sentenced (para. 114). A change that includes such limitations occasions additional punishment.
[23] Having established an infringement of s. 11 (h), Holmes J. found that the infringement was not saved under s. 1 of the Charter . Although the objectives underlying the retrospective application of the repeal, which included maintaining or restoring public confidence in the administration of justice, were pressing and substantial, the Attorney General of Canada had not shown that the provision impaired the respondents’ s. 11 (h) rights no more than was necessary to attain Parliament’s objectives. Holmes J. declared s. 10(1) to be invalid to the extent that it made the AEPA apply retrospectively to offenders sentenced before March 28, 2011, the date the AEPA came into force. The declaration was to have immediate effect.
B. British Columbia Court of Appeal, 2012 BCCA 435, 329 B.C.A.C. 118 (Levine, D. Smith and Groberman JJ.A.)
[24] The Court of Appeal upheld the trial judge’s decision, although with a few variations in reasoning. Levine J.A., writing for the court, found that the purpose of s. 11 (h) is to protect against double jeopardy, and that it applies to sanctions imposed after sentencing. She found that the retrospective legislative lengthening of the time the respondents would spend in jail that resulted from the delaying of their parole eligibility violated their right under s. 11 (h) not to be “punished again” (para. 71).
[25] Levine J.A. emphasized the distinction between the role of the sentencing judge and that of the Board under the CCRA , and mentioned that it is improper for a judge to take parole administration into consideration in the sentencing process. This did not alter her conclusion that s. 10(1) of the AEPA nonetheless amounted to punishment, having regard to both the purpose and the effect of the retrospective application of the repeal.
[26] Levine J.A. noted that an overly narrow reading of s. 11 (h) is contrary to the appropriate principles of Charter interpretation. She stated that the purpose of s. 11 (h) is to ensure that a person cannot be punished a second time for an offence for which he or she has already been tried and convicted. The issue was the meaning of “punishment” for the purposes of s. 11 (h), and this turned on whether the consequence in this case “forms part of the arsenal of [possible] sanctions” and furthers the “purpose and principles of sentencing”, as required by Rodgers (para. 63). Levine J.A. asked whether the statute had a punitive purpose, but declined to decide the s. 11 (h) claim on the basis of this question. Instead, she held that the effect of the delayed parole eligibility imposed by way of legislation was analogous to that of delayed parole eligibility imposed by a judge, the latter of which is clearly punishment (citing Chaisson and Zinck). In its effect, therefore, s. 10(1) of the AEPA violated s. 11 (h) of the Charter .
[27] The Court of Appeal also agreed with the trial judge’s finding that although the legislation was enacted in response to a pressing and substantial concern, the Attorney General had not provided sufficient evidence that it impaired the respondents’ rights as little as possible, which meant that it could not be saved under s. 1 of the Charter .
IV. Analysis
A. Does the Retrospective Application of the Abolition of APR Infringe Section 11(h)?
[28] The respondents submit that the retrospective application provision, s. 10(1) of the AEPA , violates their right under s. 11 (h) of the Charter not to be “punished . . . again”. They urge a broad reading of the term “punishment” that is not limited to the duplication of criminal or quasi-criminal proceedings. In their view, the retrospective application of the repeal, which eliminated the eligibility for early day parole of offenders who had already been sentenced, was punitive in its effect. The respondents also argue, parting ways with the Court of Appeal on this point, that it was punitive in its purpose.
[29] The Crown urges a narrow, textual reading of s. 11 (h) that would exclude the elimination of early day parole eligibility from the definition of “punishment”. It argues that the retrospective application of the repeal was adopted in furtherance of the goals of rehabilitation, reintegration, public safety and confidence in the administration of justice, not that of punishment. The effect of that application reflects this non-punitive purpose. In this Court, the Crown further argues that s. 11 (h) is not engaged, because being “punished . . . again” requires a duplication of proceedings that are criminal in nature in respect of the same matter.
[30] I will begin with this last question of whether s. 11 (h) applies absent a duplication of proceedings. I will then consider the scope of the “punishment” concept in the context of s. 11 (h) before inquiring into whether the impugned provision constitutes “punishment” in its purpose or in its effect.
(1) Does Section 11(h) Apply Where No Duplication of Proceedings Has Occurred?
[31] Neither the trial court nor the Court of Appeal dealt with this question. The two courts agreed that s. 11(h) protects against double jeopardy, which Levine J.A. defined as protection “from being tried or punished again for an offence for which the offender has already been found guilty and punished” (para. 45), and they focused their analyses on the meaning of “punishment” for the purposes of s. 11(h).
[32] Section 11 (h) of the Charter reads as follows:
11. Any person charged with an offence has the right
. . .
(h) 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;
[33] Parliament’s purpose in enacting s. 11 (h) was to protect against double jeopardy. Section 11 (h) mirrors the language and purpose of art. 14.7 of the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, which reads:
7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
[34] But equating s. 11 (h) with double jeopardy does not conclude the discussion of its purpose, since the very definition of “double jeopardy” is contested. Don Stuart says the following in this regard in Charter Justice in Canadian Criminal Law (5th ed. 2010):
Under existing Canadian law there is certainly no one rule on double jeopardy. The subject is one of the utmost complexity and subtlety and is certainly in need of clarification. The law provides protection against harassment of multiple trials for the same act but also protection against multiple punishment. The concern to do something about double punishment stems from a distinct consideration based far more squarely on the fairness of proportionate punishment. [p. 464]
[35] As several authors have noted, the scope of s. 11 (h) is narrow (see M. L. Friedland, “Legal Rights Under The Charter ” (1982), 24 Crim. L.Q. 430, at pp. 435 and 449; Stuart, at p. 467). Stuart states that s. 11 (h) has had “little impact on the protection of the accused against double jeopardy and double punishment”, in part because of this narrow scope (ibid.). Both Friedland and Stuart suggest that broader interpretations of double jeopardy may fit more easily into s. 7 of the Charter (Friedland, at p. 435; Stuart, at p. 468). This view may seem especially compelling in this case, which concerns alleged punishment arising from retrospective legislation, given that there are two provisions that deal explicitly with retrospectivity: s. 11 (g), which protects against retroactive criminal legislation, and s. 11 (i), which protects against the imposition of a harsher punishment where the punishment for the offence has been varied between the time of commission of the crime and the time of sentencing.
[36] In my view, it is not necessary to resort to a different Charter provision. The language of s. 11 (h), the academic literature and this Court’s jurisprudence support a reading of s. 11 (h) according to which the right not to be “punished . . . again” applies where an offender has been sentenced, even if no separate proceeding has taken place.
[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).
[38] The plain meaning of s. 11 (h) is supported by common sense. It would be far more questionable to punish someone without a proceeding than to punish him or her with a proceeding. The purpose of s. 11 (h) cannot be to protect against punishment imposed following a trial in which due process has been observed, but not against punishment imposed without the protections afforded by a trial.
[39] Next, it is true that the authors emphasize that s. 11 (h) is narrow in scope and does not encompass all forms of double jeopardy. For instance, it is distinct from statutory and common law protections such as autrefois acquit, or the rule in Kienapple v. The Queen, [1975] 1 S.C.R. 729, against multiple convictions for separate offences based on a single act (R. v. Van Rassel, [1990] 1 S.C.R. 225, at p. 233). Nevertheless, this does not preclude the application of s. 11 (h) to protect against double punishment where no new proceeding has taken place, nor am I aware of academic literature that would support such a position. While some authors focus on the fine points of what constitutes a second proceeding for the purposes of s. 11 (h) (see P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), vol. 2, at p. 51-35), this does not limit the application of s. 11 (h) in cases of double punishment in which no such proceeding took place.
[40] If anything, the lack of academic commentary on this subject speaks less to the scope of the provision than to the relative infrequency of such violations. The early cases with respect to s. 11 (h) concerned situations in which criminal charges were laid against an accused who had previously been sanctioned or disciplined in a non-criminal proceeding for the same act; the question was whether the non-criminal proceeding or sanction triggered the protection against double jeopardy (R. v. Wigglesworth, [1987] 2 S.C.R. 541, and R. v. Shubley, [1990] 1 S.C.R. 3). Those cases did not directly address the possibility of punishment without a second proceeding. The Crown cites the following comment made by McLachlin J. (as she then was) in Shubley (p. 19): “Section 11 (h) provides protection against duplication in proceedings of a criminal nature. It does not preclude two different proceedings, one criminal and the other not criminal, flowing from the same act” (A.F., at para. 59). However, this passage must be read in context, as part of the Court’s inquiry into whether the proceeding in question was criminal “in nature”. Even in the early s. 11 (h) cases, it was found that the protection against double jeopardy could be triggered by proceedings that are criminal in nature or by “true penal consequences”.
[41] Rodgers, a more recent case, supports my conclusion. At issue in that case was whether an order for the taking of a DNA sample that was made pursuant to a statute enacted after the offender had been sentenced constituted double punishment. The following comments of Charron J. are on point:
First, it is necessary to consider whether s. 11 applies at all to a s. 487.055 application. As the introductory words of the section make it plain, the protection extended by s. 11 can only be invoked when “[a] person [is] charged with an offence”. Therefore, in and of itself, the application for a DNA order does not at all engage s. 11 . It cannot be contended that Mr. Rodgers is “charged with an offence” on any reasonable meaning of the term and, as I understood his argument, he is not claiming the protection of s. 11 on that basis. He relies, rather, on the charges that were brought in respect of the index offences — namely the multiple sex offences in respect of which he was convicted and which form the basis of the application for a DNA data bank order. There is no doubt that s. 11 applies to those criminal proceedings and the question then becomes whether the imposition of a s. 487.055 order constitutes further “punishment” for those offences. [Emphasis added; para. 58.]
In Rodgers, the Court rejected the narrow construction of s. 11 (h) advanced by the Crown in the case at bar according to which it is limited to cases involving a duplication of proceedings that are criminal in nature. I find that s. 11 (h) does protect an offender who has been tried and sentenced against double punishment even in the absence of a second proceeding. As to the paucity of academic commentary on this issue, it may be time to update the textbooks.
[42] Having concluded that s. 11 (h) does not preclude claims of double punishment where a second proceeding has not taken place, I must now determine whether the situation in the instant case amounts to punishment.
(2) What Is the Scope of “Punishment” in the Context of Section 11 (h)?
(a) Pre-Rodgers Jurisprudence
[43] The scope of “punishment” in the context of s. 11 (h) has expanded over the years as new cases have pushed the limits of old definitions. It has always been clear that criminal or quasi-criminal proceedings trigger the protection against double jeopardy. Thus, a second criminal or quasi-criminal charge with respect to the same act engages s. 11 (h) even if the consequence is slight.
[44] Wigglesworth made it clear that the protection against double jeopardy may be triggered not only by proceedings that are criminal or quasi-criminal in nature, but also by non-criminal proceedings that result in a sanction with true penal consequences. Where a person is charged in respect of “a private, domestic or disciplinary matter . . . intended to maintain discipline, integrity or to regulate conduct within a limited private sphere of activity” (p. 560), s. 11 (h) may still be engaged if the true penal consequences test is met:
In my opinion, a true penal consequence which would attract the application of s. 11 is imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity.
(Wigglesworth, at p. 561, per Wilson J.)
[45] In Wigglesworth, although the internal disciplinary proceeding against an RCMP officer was neither criminal nor quasi-criminal “in nature”, it was found to involve “true penal consequences” because the possible sanctions included imprisonment for up to one year. In Shubley, applying the same test, the Court found that a sanction imposed in an internal prison disciplinary proceeding — close confinement for a period of five days on a special diet — fell short of “true penal consequences”, in part because the possible sanctions involved neither fines nor imprisonment: “Confined as they are to the manner in which the inmate serves his time, and involving neither punitive fines nor a sentence of imprisonment, they appear to be entirely commensurate with the goal of fostering internal prison discipline and are not of a magnitude or consequence that would be expected for redressing wrongs done to society at large” (p. 23, per McLachlin J.).
[46] In Rodgers, the Court took the opportunity to revisit the definition of “punishment” it had articulated in Wigglesworth and Shubley. The question was whether compelling an offender to submit to the taking of a DNA sample under legislation that