Supreme Court

Charter of Rights

Retrospectively imposing delayed parole eligibility constituted added punishment

Abolition of Early Parole Act providing for retrospective repeal of accelerated parole and delaying date of eligibility of plaintiffs for day release and making test for release more onerous. Plaintiffs applying for declaration that retrospective application was unconstitutional. Trial judge held retrospective legislative changes to eligibility to accelerated parole violating s. 11(h) Charter right of accused not to be “punished again” after being “finally punished” for offences. Trial judge holding limit on s. 11(h) not justified by s. 1 of Charter as retrospective transitional provision not necessary to achieve objectives of abolition of early parole. Court of Appeal upholding trial judge’s ruling. Further appeal to Supreme Court of Canada dismissed. Section 11(h) not restricted to punishment imposed after separate proceeding. Retrospectively imposing delayed parole eligibility on sentenced offenders constituted added punishment and violated s. 11(h). Retrospective application of provisions did not minimally impair rights of inmates.

Whaling v. Canada (Attorney General) (Mar. 20, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karkatsanis J., and Wagner J., File No. 35024) Decision at 104 W.C.B. (2d) 636 was affirmed.  112 W.C.B. (2d) 434.

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