In another judicial blow against the Conservative government's crime-fighting agenda, the Supreme Court of Canada has ruled that a law that applied retroactively to non-violent offenders, taking away their easy access to early day parole, violates their constitutional rights.
The unanimous ruling is the latest sign that the largely conservative court hand picked by Prime Minister Stephen Harper is willing to draw a line in the sand against certain aspects of the government's tough-on-crime laws.
The government had argued – in light of a high-profile case in which investors had been defrauded in Quebec – that retroactive application was needed to maintain confidence in the justice system. But Justice Richard Wagner of Quebec, writing for the court, said, "I would point out that the enactment of Charter-infringing legislation does great damage to that confidence."
Benjamin Berger, who teaches law at York University's Osgoode Hall, called Thursday's ruling "a really sharp affirmation that political goals and expediency are tempered by the rule of law. That's the very function of constitutional law."
The court stood by that principle in December, he said, when it unanimously struck down three laws on prostitution that it found endangered the lives of prostitutes. And lower courts have ruled against mandatory minimum sentences.
Three years ago, public safety minister Vic Toews oversaw the passage of a law that ended the Accelerated Parole Review, created by a Progressive Conservative government in 1992 and enlarged by a Liberal government in 1997. That accelerated review made it quick and easy for first-time, non-violent federal offenders to receive day parole.
Day parole for other offenders is not available until six months before their eligibility date for full parole (usually after one-third of their sentence). But accelerated parole made day parole available after one-sixth of a sentence. And those eligible did not need to apply. They were granted early day parole automatically – as long as the parole board felt they were not likely to commit a violent crime if released. There was no hearing; it was all done on paper.
The only part of the law being challenged at the Supreme Court was its retroactive effect on criminals who had already been sentenced. The court said it amounted to being punished a second time for the same offence, which is not allowed under the Charter of Rights and Freedoms.
The court said that while the government's purposes were good – deterring crime – it could accomplish them without making the law retroactive. The government had argued that it was not imposing extra punishment but merely changing the conditions under which the sentence was served.
Although the case involved three non-violent offenders, not all their crimes were of the white-collar variety. Christopher Whaling was convicted of weapons trafficking and firearms possession, and sentenced to four years, six months; his day parole was delayed three months. Judith Slobbe was convicted of fraud, perjury and theft and sentenced to seven years, seven months; her day parole was delayed nine months. Cesar Maidana was convicted of cocaine trafficking, and sentenced to 13 years, six months; his parole was delayed 21 months.
"Offenders have constitutional rights and you just can't retroactively change the rules of the game," lawyer Eric Purtzki of Vancouver, who represented the offenders, said in an interview.
He said that, because the case took two years to reach the Supreme Court, many offenders across the country lost out on the early parole they had a constitutional right to expect.