In the last two weeks, the Supreme Court of Canada has issued two judgments that demonstrate at least some check on the decidedly restrictive criminal justice policies of the current Government.
One case, A.G. (Canada) v. Whaling, (Lexum) 2014 SCC 20, March 20, 2014  concerned the March 2009 repeal of Accelerated Parole Review (“APR”). This parole option had permitted non-violent offenders to be considered for parole at 1/6th of their sentence and required their release unless the Parole Board of Canada could determine that it was likely that the offender would commit a violent offence before his/her sentence came to an end.
The measure had been legislated in 1992 based on the reasonable view of drafters, supported by the Progressive Conservative Government of the time, that supervised release to the community, absent any immediate risk of physical harm, is the appropriate way to reintegrate non-violent offenders, rather than keeping them inside unnecessarily. The idea of “presumptive release” for specific, low-risk prisoners is a long-accepted principle in corrections. (Of course, upon release, the offenders would be under supervision in the community and any re-offending of any kind or any breach of parole conditions could result in return to prison)
In its usual wisdom, the current Government, without empirical justification, simply eliminated APR in 2009 and purported to do so even for offenders who were already serving sentences at the time of the repeal. These offenders had been sentenced with the expectation that they might qualify for APR and this may have been a factor in deciding what their sentence would be, or whether they pleaded guilty to an offence.
Deprived of APR, non-violent offenders could seek release only under the normal standard, which permits the Parole Board to grant release only if it determines in reasonable grounds that the offender will not cause an undue risk by re-offending ( any type of offence) before the end of his/her sentence. This is a higher standard than APR and has undoubtedly resulted in preventing the release of many offenders who, but for the repeal of APR, would have been released.
The March 30, 2014 Supreme Court judgment clarified that the Government could not enact this retrospective legislation – that to do so would represent a second punishment for the same offence. Accordingly, inmates who were eligible for APR under the sentence that they were serving at the time of the amendment are now, once again, eligible to be considered for APR.
Beyond the direct effect of the judgment on APR candidates’ release prospects, and on the number of offenders who have needlessly remained incarcerated, the judgment underlines that our judicial system will confront Government measures that play fast and loose with the Constitution and with the traditions of lawful enactment of statues.
One envisages the thinking of the government in deciding to make the abolition of APR retroactive. I imagine that they were advised of the danger of legislating in the face of the long-standing rule against retrospective legislation. The were probably also aware that challenges under s.7 ad/or s.11 of the Canadian Charter of Rights and Freedoms might succeed .
Opposed to those warnings were the perceptions of hard-core supporters who simply wanted criminals kept inside longer, who really saw no value in time served outside institutions and who believed that government should simply sweep away any soft-on-crime legislation.
Catering to these attitudes won the day, perhaps all the more so because it was believed that any fallout from the legislation would occur down the line in subtle and tempered judicial terms.
Thank you, Supreme Court, for being clear that this clumsy legislative ploy was a failure and will not be countenanced.
The other Supreme Court judgment was in Mission Institution v. Khela, 2014 SCC 24, March 27, 2014 . This case in a way “completed” the jurisprudence commenced in May v. Ferndale Institution,  3 S.C.R. 809, which established that prisoners were not obliged to deal with involuntary transfers, and other restrictions on liberty, by using the cumbersome inmate grievance process and then going to the Federal Court of Canada for relief. Rather, said the Court in May, prisoners can go straight to the superior court of a province and apply for habeas corpus, seeking an immediate return to lower security.
In Khela the government contended that the reasonableness of an involuntary transfer decision had to be decided by an application to the Federal Court and, accordingly, a prisoner could not seek habeas corpus in a provincial superior court based on reasonableness of the decision. The Supreme Court rejected this government argument, holding that the reasonableness of a decision was a logical element of a habeas corpus decision in both kinds of court.
Perhaps more important, the Supreme Court underlined the significant onus on decsion-makers in involuntary transfer cases. It had been found at trial and on appeal in British Columbia that the Warden had failed to provide to the inmate, and/or consider in his decision, all the information that was required for this purpose under the common law rules of procedural fairness or under the terms of s.27 of the Corrections and Conditional Release Act (“CCRA”),S.C. 1992, c.20. S.27 provides:
27. (1) Where an offender is entitled by this Part or the regulations to make representations in relation to a decision to be taken by the Service about the offender, the person or body that is to take the decision shall, subject to subsection (3), give the offender, a reasonable period before the decision is to be taken, all the information to be considered in the taking of the decision or a summary of that information.
(2) Where an offender is entitled by this Part or the regulations to be given reasons for a decision taken by the Service about the offender, the person or body that takes the decision shall, subject to subsection (3), give the offender, forthwith after the decision is taken, all the information that was considered in the taking of the decision or a summary of that information.
(3) Except in relation to decisions on disciplinary offences, where the Commissioner has reasonable grounds to believe that disclosure of information under subsection (1) or (2) would jeopardize
(a) the safety of any person,
(b) the security of a penitentiary, or
(c) the conduct of any lawful investigation,
the Commissioner may authorize the withholding from the offender of as much information as is strictly necessary in order to protect the interest identified in paragraph (a), (b) or (c).
[The bolding in the above is mine.]
S.27 was enacted with the CCRA in 1992 and the drafters intended that it would contain the rules that the Courts had developed over many years for considering administrative fairness – i.e.
- providing enough information to a person before a decision so that the person will be able to contest the decision in an informed manner, and
- considering that information, and the offender’s representations, in the ultimate decision
The Supreme Court affirmed that the information to be provided to an offender prior to an adverse decision was far more than simply the information that the Warden chose to use to justify a decision. It included all of the information that the Warden considered [ or, in my view, all of the available information that he/she should consider].
This will encompass the supporting information that staff compiled and considered before making recommendations to the Warden – such as observation reports, records of interviews, security information investigations and videotaped records of relevant events.
Moreover, the Court also affirmed that one aspect of the information shared with inmates and used in decisions was to allow the inmate and the authorities to test the reliability of information provided in support of transfer recommendations.
Finally , the names of informants and other security information can be excluded only where this is strictly necessary for safety, security or investigatory purposes.
The case will go a long way, I hope, in requiring correctional authorities to actually consider the information that bears on decisions and in permitting inmates to make informed representations before any decision is taken. No longer will Wardens be able to proceed on what can amount to hunches, without thoroughly identifying and weighing factors both adverse and favourable to the prisoner – and without justifying this analysis in their reasons for the decision.
The Supreme Court has demonstrated that, even in the face of some pretty nonsensical policies, it will be willing to supervise and correct prison authorities in the interest of fairness and human rights.
 s.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.
s.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; [my emphasis]