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Whaling v. Canada (Attorney General)

On Thursday, March 20, 2014, the Supreme Court of Canada released its decision in Attorney General of Canada v. Whaling et al. The BCCLA was an intervener in the case.

The case considered whether the provisions of the Abolition of Early Parole Act should be applied to people who were already serving sentences in federal prisons at the time that law came into force. The Abolition of Early Parole Act ended accelerated parole review and accelerated day parole. The practical result of applying the law to people who were already serving sentences is that they will spend more time in prison.

The BCCLA argued that applying the Abolition of Early Parole Act retroactively – to people already serving sentences at the time the law came into force – is inconsistent with s. 11(h) of the Charter of Rights and Freedoms. Section 11(h) of the Charter prevents people from being tried or punished twice for the same crime. The BCCLA argued that this section should be given a broad interpretation that recognizes fair notice and certainty in sentencing. The BCCLA urged the Court to reach the same conclusion as courts in other jurisdictions: passing a law to retroactively increase the length of an inmate’s prison term constitutes punishment and is unconstitutional.

The Supreme Court of Canada unanimously dismissed the Crown’s appeal and confirmed that applying the Abolition of Early Parole Act retroactively – to people already serving sentences at the time the law came into force – is inconsistent with s. 11(h) of the Charter of Rights and Freedoms. The Court found that s. 11(h) not only protected persons from being tried twice for the same offence, but also prevented the government from punishing twice for the same offence. The circumstances of this case, where the effect of the law was to lengthen prison sentences for persons already serving sentences, is a “clear” infringement of those persons rights under s. 11(h).

The BCCLA is represented by Professor Michael Jackson, Q.C., Joana Thackeray, and Megan Vis-Dunbar.


The Supreme Court of Canada’s decision is available here

The BCCLA’s argument in this case is available here

Supreme Court of Canada