COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dell, 2018 ONCA 674

DATE: 20180802

DOCKET: C62078

Doherty, LaForme and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cherrylle Dell

Appellant

Howard L. Krongold, for the appellant

Roger A. Pinnock, for the respondent

Heard: October 17, 2017

On appeal from the order of Justice Robert L. Maranger of
    the Superior Court of Justice, dated May 5, 2015, with reasons reported at 2015
    ONSC 1570, 334 C.R.R. (2d) 289, and the order dated January 19, 2016, with
    reasons reported at 2016 ONSC 505.

Doherty J.A.:

I

overview

[1]

The sentencing provisions for murder in
    the
Criminal Code
have a unique feature. Offenders who have received a
    life sentence without eligibility for parole for more than 15 years can apply
    to a jury after 15 years for a reduction in their period of parole
    ineligibility. The
Criminal Code
provisions governing those applications
    have changed over the years. Those changes have, by and large, limited an
    offenders chances of obtaining a reduction in the period of parole
    ineligibility. This appeal focuses on the constitutionality of the principal
    legislative change  the introduction of a judicial screening mechanism into
    the process governing applications for a reduction in the period of parole
    ineligibility.

[2]

When the appellant committed first degree
    murder in 1995, she was entitled to bring an application directly before a jury
    for a reduction in the period of her parole ineligibility after serving 15
    years of her sentence. However, by the time she was eligible to bring that
    application, the legislation had been amended requiring her to first convince a
    judge, on a written record, that there was a substantial likelihood that her
    application would succeed before the jury. This appeal focuses on the
    constitutionality of this judicial screening mechanism under ss. 11(h) and
    11(i) of the
Charter
when applied to offenders who committed murder
    prior to its introduction.

[3]

For the reasons that follow, I agree that
    the application of the judicial screening mechanism to the appellants
    application for a reduction in her parole ineligibility contravened her right
    under s. 11(i) of the
Charter
. The screening mechanism substantially
    decreased her chances of obtaining some reduction in parole ineligibility.
    Viewed functionally and pragmatically, the implementation of the judicial
    screening mechanism constituted an increase in the punishment attaching to her murder
    sentence, and she has the right to the benefit of the lesser punishment that
    existed at the time she committed the offence. I am also satisfied that the
    Crown cannot justify the infringement under s. 1 of the
Charter
. The appellant is entitled to have her faint hope
    application heard by a jury.

II

Factual Background

[4]

The appellant murdered her husband in December 1995. She was arrested in
    December 1997 and convicted of first degree murder in February 2001. The trial judge
    imposed the mandatory sentence of life imprisonment without eligibility for
    parole for 25 years. The appellant has been in custody since her arrest. Her sentence
    runs from the date of her arrest.

[5]

Under the
Criminal Code
provisions
as they stood when the appellant committed the murder,
    she was entitled, after 15 years in custody, to apply for a reduction of the
    25-year period of parole ineligibility. The application was to be heard by a
    jury empanelled for that reason.

[6]

The appellant brought her application in 2013, 15 years and 3 months after
    the commencement date of her sentence. By that time, the relevant legislative
    scheme had undergone several changes. Most significantly, the application for a
    reduction in the period of parole ineligibility no longer went directly before
    a jury. Instead, the application was first vetted by a judge. Only if that
    judge were satisfied, based on a written record, that there [was] a
    substantial likelihood that the application [would] succeed would the judge then
    direct that a jury be empanelled to consider the merits of the application. If
    the judge were not so satisfied, the application would go no further. Another
    application could not be brought for at least five years.

[7]

The judicial screening mechanism, which first came into effect in 1997
    and was amended in 2011, applies to all applications for review of parole
    ineligibility. This includes applications, like this one, brought by individuals
    who committed the murder before the statutory creation of the judicial screening
    mechanism. On her application, the appellant argued that the retrospective
    application of the screening provisions infringed her constitutional rights
    under ss. 7, 11(h) and 11(i) of the
Charter
. The application judge
    rejected this submission in his reasons reported at
R. v. Dell,
2015
    ONSC 1570, 334 C.R.R. (2d) 289 (
Dell #1
). In subsequent reasons,
    reported at
R. v. Dell
, 2016 ONSC 505 (
Dell #2
), he also
    concluded that the appellant had not satisfied him that there was a
    substantial likelihood that her application would succeed before a jury. He
    declined to empanel a jury.

[8]

The appellant appeals pursuant to s. 745.62 of the
Criminal Code
.
    She challenges only the constitutional ruling, renewing her argument that the
    judicial screening provision cannot be constitutionally applied to her
    application for a reduction in her period of parole ineligibility. She
    maintains that she is entitled to have her application considered by a jury.

[9]

If the constitutional argument fails, the appellant does not quarrel
    with the application judges finding that she did not meet the test for
    empanelling a jury.

[10]

The
    facts relevant to the commission of the murder and the merits of the appellants
    claim that her period of parole ineligibility should be reduced are not germane
    to the constitutional arguments. They are fully addressed in the reasons of the
    application judge in
Dell #2
. It is sufficient to record his conclusion,
    at para. 38 of that decision:

After considering the evidence regarding the character of the
    applicant, her overall conduct while incarcerated, and the offence she
    committed, I asked myself the question: on a balance of probabilities is there
    evidence upon which a reasonable jury, acting judiciously, would be
    substantially likely to award a reduction in the applicants parole
    ineligibility period? In this case the answer in my view is very clearly no.

III

the statutory evolution of the faint hope clause

[11]

In
    1976, after decades of debate in Canada, Parliament abolished the death
    penalty. As part of the package of amendments that brought about that abolition,
    Parliament divided murder into two categories for sentencing purposes. First
    degree murder was punishable by life imprisonment without eligibility for
    parole for 25 years. Second degree murder was punishable by life imprisonment
    without eligibility for parole for a minimum of 10 years and a maximum of 25
    years. In the case of second degree murder, the trial judge fixed the period of
    parole ineligibility as part of the sentencing. In doing so, she took into
    account any recommendation as to parole ineligibility made by the jury:
Criminal
    Law Amendment Act (No. 2)

1976
, S.C. 1974-75-76, c. 105, ss. 4, 5, and
    21.

[12]

In
    addition to abolishing the death penalty and imposing mandatory life sentences with
    lengthy periods of parole ineligibility, Parliament introduced what came to be
    known as the faint hope clause with a view to mitigating those lengthy parole
    ineligibility periods. Persons sentenced to life imprisonment without
    eligibility for parole for more than 15 years could apply for a reduction of
    the period of parole ineligibility after 15 years:
Criminal Law Amendment
    Act (No. 2)

1976
, s. 21; Allan Manson, The Easy Acceptance of
    Long-Term Confinement in Canada (1990), 79 C.R. (3d) 265.

[13]

As
    originally enacted, the faint hope clause allowed a person who had served 15
    years of a life sentence, and who had been sentenced to a period of parole
    ineligibility in excess of 15 years, to bring an application for a reduction in
    the period of parole ineligibility. That application was made to the Chief
    Justice of the Superior Court of the province or her designate. The Chief
    Justice was then required to empanel a jury to hear the application:
Criminal
    Law Amendment Act (No. 2)

1976
, s. 21.

[14]

The
    jury was required, under the relevant provisions in the
Criminal Code
,
    to consider the applicants character, conduct while serving the sentence, the
    nature of the offence, and any other matter deemed relevant by the presiding
    judge. If two-thirds of the jury favoured reducing the period of parole
    ineligibility, the jury could substitute a lesser period of parole
    ineligibility, or terminate the applicants ineligibility for parole. The ultimate
    decision to grant or refuse parole remained with the National Parole Board:
Criminal
    Law Amendment (No. 2)

1976
, s. 21.

[15]

Apart
    from identifying factors to be considered, the statutory provisions said nothing
    about how the jury was to go about its assessment. In
R. v. Swietlinski
,
    [1994] 3 S.C.R. 481, at pp. 492-94, Lamer C.J. referred to the faint hope
    procedure as original in several respects. He noted that the jury was
    required to reassess parole ineligibility, armed with new information and
    insights developed over the 15 years the applicant had spent incarcerated. The
    jurys discretion, while guided by the factors enumerated in the section, could
    not be captured by any specific legal test or controlled by any judicial
    instruction. He said, at p. 494:

Accordingly, the concepts of burden of proof, proof on a
    balance of probabilities, or proof beyond a reasonable doubt are of very
    limited value in a hearing pursuant to s. 745, where the decision lies
    exclusively in the discretion of the jury. The jury must instead make what it,
    in its discretion, deems to be the best decision on the evidence.

[16]

In
R. v.
Vaillancourt
(1989), 49 C.C.C. (3d) 544 (Ont. C.A.),
    Brooke J.A., speaking for this court, at pp. 550-51, referred to the faint
    hope clause as a special procedure aimed at providing input on the potential
    release of the offender from the members of the community as represented by the
    jury. As he put it, it is for the jury to decide.

[17]

Callaghan
    A.C.J., who had presided over the original application in
Vaillancourt
,
    described the jurys function in these terms in his decision reported at
    (1988), 43 C.C.C. (3d) 238 (Ont. H.C.), at pp. 246-47:

The jury under s. 672(2) is undertaking a review process in the
    course of which they must consider the applicants good conduct, and are given
    specific criteria to be applied in coming to their decision. But that jury does
    not again determine the degree of denunciation. With reference to the character
    of the applicant, his conduct while incarcerated and the circumstances of the
    offence,
the jury determines whether or not present circumstances justify
    leniency and an early consideration of the applicants case by the parole board.
[Emphasis added.]

[18]

In
    1995, the faint hope clause was amended by adding the requirement that the
    jury consider information from any victims provided either at sentencing or at
    the faint hope hearing before the jury:
An Act to Amend the Criminal Code
    (Sentencing) and Other Acts in Consequence Thereof
, S.C. 1995, c. 22, s.
    6. That amendment does not figure into this constitutional challenge.

[19]

In
    1996, Parliament made three changes. First, Parliament introduced a judicial
    screening mechanism. The faint hope applicant no longer had an automatic
    right to a hearing before a jury. Instead, the application went first to the
    Chief Justice or her designate to determine whether, on the basis of written
    material only, the applicant had shown, on a balance of probabilities, that
    there was a reasonable prospect that the application would succeed before a
    jury. A jury was empanelled to consider the application only if the Chief
    Justice or her designate was satisfied that there was a reasonable prospect
    of success:
An Act to Amend the Criminal Code (Judicial Review of Parole
    Ineligibility) and Another Act
, S.C.
    1996, c. 34, s. 2.

[20]

The
    judicial screening criterion established in 1996 was judicially interpreted as
    setting a relatively low bar intended to prevent applications being brought
    before a jury that had no realistic chance of success. The purpose of the
    provision was twofold. First, to save friends and relatives of the victims of
    the murders the needless pain and anguish of going through a faint hope
    hearing before a jury when the applicant had no realistic chance of success.
    Second, the screening process was intended to avoid wasting jurors time and judicial
    resources on hopeless applications: see
R. v. Jenkins
, 2014 ONSC 3223,
    310 C.C.C. (3d) 248, at paras. 20-22;
R. v. Phillips
, 2011 ONSC 1914,
    at paras. 6-9, affd 2012 ONCA 54, 288 O.A.C. 351, at paras. 6-7;
R. v.
    Rochon
, 2011 ONSC 5061, at paras. 6-7;
R. v. Oczko
, 2012 ABQB
    121, 535 A.R. 59, at paras. 4-13.

[21]

The second change introduced in the 1996 amendments required
    that a jurys decision to reduce the period of parole ineligibility be
    unanimous rather than as previously provided, by a two-thirds majority. If the
    jury unanimously decided to reduce the period of parole ineligibility, the
    actual period of parole ineligibility could be fixed by the vote of two-thirds
    of the jury:
An Act to Amend the Criminal Code (Judicial Review of Parole
    Ineligibility) and Another Act
, s. 2. The
    appellant does not allege that this amendment runs afoul of ss. 7, 11(h) or 11(i).
[1]

[22]

The
    third change related to persons convicted of more than one murder. Such
    offenders could not apply for a reduction in their period of parole
    ineligibility. This provision applied to offenders who committed at least one
    of the murders after the amendment came into force:
An Act to Amend the
    Criminal Code (Judicial Review of Parole Ineligibility) and Another Act
, ss. 2 and 6.
It does not apply to the
    appellant and is not a part of her constitutional challenge.

[23]

The 1996 amendments, except the provision relating to
    multiple murders, were applied retrospectively to crimes committed before the
    amendments came into force on January 9, 1997:
An Act to Amend the Criminal
    Code (Judicial Review of Parole Ineligibility) and Another Act
, s. 7.

[24]

The faint hope
    legislation was amended again in 2011. Parliament repealed the judicial
    screening provision introduced in 1996 and replaced it with a provision that
    allowed the application to go to a jury only if the judge was satisfied, on the
    balance of probabilities, that there was a substantial likelihood that the
    application would succeed:
An Act to Amend the Criminal Code and
    Another Act
, S.C. 2011, c. 2, s. 4(1).
    The amendments also limited the number of faint hope applications that an
    offender could bring, and placed strict timelines on the bringing of a faint
    hope application:
An Act to Amend the Criminal Code and
    Another Act
, ss. 3 and 6. These provisions
    came into force in December 2011 and were also retrospective, thereby applying
    to crimes committed before their enactment:
An Act to Amend the
    Criminal Code and Another Act
, s. 3(2).
[2]

[25]

The 2011 amendments to
    the judicial screening process imposed a significantly more stringent test than
    had the 1996 amendments: see
Jenkins
, at paras. 14, 26-32;
R. v. Gayle
, 2013 CanLII 57631, (Ont. S.C.) at paras. 7-12;
R.
    v. Morrison
, 2012 ABQB 619, 551 A.R.
    149
, at para. 42;
R.
    v. Paul
, 2014 ONSC 1285, at paras.
    4-8;
R. v. Point
, 2016
    ABQB 496, at paras. 17-37.

[26]

The overall impact of
the amendments to the faint hope clause on the
    appellants application for a reduction in her parole ineligibility can be
    summarized as follows. When the appellant committed the murder, she was
    entitled under the
Criminal Code
to go before a jury after serving 15 years and ask
    the jury to reduce her period of parole ineligibility. She could testify, call other
viva voce
evidence and
    make arguments on that evidence to the jury to support her request. The jury
    was required to consider the criteria set out in the statute, but the statute
    imposed no legal restrictions on the jurys exercise of its broad discretion:
    see
R. v. Rowe
, 2015
    ONSC 2576, 324 C.C.C. (3d) 57, at para. 18;
Jenkins
, at paras. 41-42. If the applicant convinced
    two-thirds of the jury that some reduction in her parole ineligibility was
    appropriate, the period of parole ineligibility would be reduced accordingly.

[27]

When the appellant was
    sentenced in 2001, the legislation no longer provided for direct access to a
    jury on a faint hope application. The appellant had to satisfy a judge, based
    on a written record, that there was a reasonable prospect of success. If the
    appellant cleared that hurdle, she then had to convince a jury that some
    reduction in the period of parole eligibility should be granted.

[28]

By the time the
    appellant was actually eligible to bring her faint hope application in 2013,
    the legislation had changed again. As of that date, she could not get her plea
    before a jury unless she could first satisfy a judge, on a written record, that
    there was a substantial likelihood that her application would succeed before
    a jury.

[29]

If the appellant was
    able to get past the judicial screening phase, the factors to be considered by
    the jury in deciding whether to reduce the period of parole ineligibility
    remained virtually unchanged from the inception of the faint hope provision,
    as did the entirely discretionary nature of the jurys decision.

IV

A: The Relevant
Charte
r
    Provisions

[30]

The
    appellant relies principally on ss. 11(h) and 11(i) of the
Charter
.
[3]
Those sections provide:

Any person charged with an offence has the right

(h)  if finally found guilty and punished for the offence,
    not to be tried or punished for it again; and

(i) if found guilty of the offence and if the punishment for
    the offence has been varied between the time of commission and the time of
    sentencing, to the benefit of the lesser punishment.

[31]

Both
    s. 11(h) and s. 11(i) put constitutional limits on the punishment of persons
    convicted of an offence. Section 11(h) prohibits punishing a convicted person
    more than once for the same offence.
[4]
Section 11(i) gives the offender the benefit of the lesser penalty if the
    penalty for the offence is varied between the time of the commission of the
    offence and the time of sentencing.

[32]

Section
    11(h) promotes finality and fairness in the sentencing process by enjoining
    state conduct that adds to the punishment already imposed for the offence. As
    Pomerance J. aptly put it in
Jenkins
, at para. 51, s. 11(h)
    crystallize[s] punishment at the time that sentence is imposed. Section 11(i)
    enhances the predictability and fairness of the sentencing process by
    identifying the applicable sentencing provisions when those provisions have
    been changed in the course of the process, and by preventing the retrospective
    application of harsher penalties: see
R. v. K.R.J.
, 2016 SCC 31, [2016]
    1 S.C.R. 906, at paras. 22-27, 39;
Whaling v. Canada (Attorney General)
,
    2014 SCC 20, [2014] 1 S.C.R. 392, at paras. 34-38;
Canada
(
Attorney
    General) v. Lalonde
, 2016 ONCA 923, 133 O.R. (3d) 481, at para. 11.

[33]

The
    protections afforded by the aspects of ss. 11(h) and 11(i) discussed in the
    preceding paragraphs apply only if the challenged state conduct amounts to punishment.
    Given the closely shared rationale of the two sections, it is not surprising
    that the jurisprudence has moved toward a common understanding of the meaning
    of punishment in both sections: see
R. v. Rodgers
, 2006 SCC 15, [2006]
    1 S.C.R. 554, at paras. 22, 59-63;
K.R.J.
, at para. 39.

[34]

The
    two sections apply in different factual circumstances. Section 11(i) is
    applicable if there has been a change in the penalty, whether an increase or a
    decrease, between the date when the offence was committed and the date when the
    sentence is imposed. Section 11(h) looks forward from the date of sentencing and
    applies to legislation or other state action that is said to increase the punishment
    imposed on the offender at the time of sentence.

[35]

The
    case law arising out of the repeal of certain early parole provisions provides
    a good example of the different situations in which the two sections operate.
    In cases in which early parole was repealed after the offender had been
    sentenced, the offender mounted a constitutional challenge under s. 11(h),
    alleging double punishment. The offender argued that by taking away his right
    to early parole, the state imposed a second and additional punishment for the
    offence: see
Whaling
, at paras. 57-60. In contrast, in those cases in which
    the early parole provisions were repealed between the commission of the offence
    and the sentencing, offenders relied on s. 11(i), arguing that they were
    entitled to the benefit of the lesser punishment that is, the parole regime
    that included access to early parole: see
Canada (Attorney General) v.
    Lewis
, 2015 ONCA 379, 126 O.R. (3d) 289;
Liang v. Canada (Attorney
    General)
, 2014 BCCA 190, 311 C.C.C. (3d) 159, at paras. 1-5, 36-40, leave
    to appeal refused, [2014] S.C.C.A. No. 298.

[36]

The
    application of s. 11(h) and s. 11(i) to the appellants claim that the faint
    hope provisions violate those sections is unfortunately not quite as
    straightforward as is their application to challenges to the repeal of the
    early parole provisions. The judicial screening provisions were introduced into
    the faint hope procedure in 1996 between the date when the appellant
    committed the murder (1995) and the time when she was sentenced (2001). Based
    on this chronology, the appellant could have challenged the constitutionality
    of the judicial screening provision under s. 11(i) at the time she was
    sentenced in 2001. The ability to make that challenge was, however, theoretical
    only. She had no right to apply for any reduction in her parole ineligibility until
    she had served 15 years of her sentence and there would seem to be little
    purpose in addressing, on a purely hypothetical basis, the constitutionality of
    the legislation governing an application which the appellant could not bring
    for several years.

[37]

By
    the time the appellant was able to bring an application for a reduction in her
    parole ineligibility, the initial judicial screening provision had been repealed,
    and replaced by the stricter 2011 version. If the appellant wanted to argue
    that the 2011 amendments constituted additional punishment, she could arguably
    not rely on s. 11(i) since the 2011 amendments came into effect long after she
    had been sentenced in 2001. The appellant could challenge the 2011 amendments
    under s. 11(h) and allege that the increased level of judicial screening
    constituted a form of additional punishment. However, if the appellant took
    this tactic, she could not challenge the judicial screening mechanism itself, since
    it was in place when she was sentenced in 2001. She could only challenge the
    increase in the level of judicial screening between 2001 and 2013 when she
    brought her application. On the approach outlined above, the appellant would not
    have the opportunity to argue that s. 11(h) and/or s. 11(i) required that her faint
    hope application be treated as it would have been when she committed the murder.

[38]

The appellants fundamental complaint is with the insertion
    of the judicial screening process into the faint hope procedures. She argues
    that judicial screening fundamentally changes the entire process in a manner
    prejudicial to her liberty interests. She further contends that the amendment
    in 2011, by ratcheting up the level of judicial scrutiny, further aggravated
    the punitive effect of inserting judicial screening into the process. The
    merits of the appellants fundamental complaint should not be left unaddressed by
    a narrow reading of s. 11(h) and s. 11(i). Instead, I think the provisions, and
    in particular the phrase
the time of
    sentencing in s. 11(i), should be read generously to allow the appellants full
    claim to be tested on its merits.

[39]

Sentencing for murder
    involves a unique two-step process. The first step is taken when the sentence
    is imposed and the second occurs if and when an application for a reduction of
    the period of parole ineligibility is made. Even though the second part of the
    process occurs after the person has served at least 15 years of her sentence,
    for the purposes of s. 11(i), I think the time of sentencing can encompass
    both steps in the process. On this approach, s. 11(i) allows the appellant to
    compare the faint hope provisions as they existed when she brought her
    application for a reduction in her parole ineligibility in 2013 with those
    provisions as they read when she committed the offence in 1995. If the 1995 provisions
    provided for a lesser punishment than the provisions as they read in 2013,
    the appellant is entitled to the application of the 1995 provisions, subject to
    s. 1 of the
Charter
.

[40]

My interpretation of the time of sentencing finds some
    support in
R. v. Olah
(1997), 33 O.R. (3d) 385 (C.A.), at pp. 404-05, leave to appeal refused, [1997]
    S.C.C.A. No. 549. The court in
Olah
held that the phrase time of sentencing in s.
    11(i) should be read as reaching the time at which an appeal court reviews the fitness
    of a sentence imposed at trial. Changes in sentencing provisions made between
    the trial and the appeal, which increased or decreased the sentence for the
    offence as it stood when the crime was committed, were subject to review under
    s. 11(i). The Quebec Court of Appeal reached a similar conclusion in
R.
    v. Dussault
(1993), 58 Q.A.C. 188, at
    para. 15. While the analogy between appellate review of a sentence and a faint
    hope application is far from exact, I think the jurys function in the faint
    hope proceeding is a form of review of the sentence imposed at trial.
[5]

B: The Arguments

[41]

The
    appellant submits that the order declaring she was ineligible for parole for 25
    years was part of her sentence and punishment. She further submits that the
    faint hope process in place when she was sentenced was part and parcel of the
    parole ineligibility component of her sentence. The appellant argues that the
    amendments to the faint hope scheme enacted after her sentencing effectively
    changed her sentence. She contends that, to the extent those changes increased (even
    marginally) the possibility that she would spend more time in custody before
    being released on parole, those changes amounted to additional punishment and
    violated the prohibition in s. 11(h) or s. 11(i). In support of this analysis,
    the appellant relies on
Rodgers
,
K.R.J.
,
and much of the analysis in
Jenkins
,
    at paras. 63-67.
[6]
This argument also recently found favour in the British Columbia Court of
    Appeal:
R. v.
Simmonds
, 2018 BCCA 205, at paras. 88-89. (
Simmonds
)

[42]

The
    appellant argues that it is self-evident that the imposition of a judicial
    screening mechanism, particularly one imposing the high level of scrutiny demanded
    by the 2011 amendments, creates a barrier to successfully obtaining a reduction
    in parole ineligibility from a jury. It is inevitable, submits the appellant,
    that some individuals who would have been successful before the jury in
    obtaining some parole ineligibility reduction, will never get to the jury. She
    contends that, as the changes to the scheme potentially increase the length of
    an offenders imprisonment, those changes increase the punishment imposed under
    the scheme as it existed when the appellant committed the offence in 1995.
    Consequently, the retrospective application of those changes to her violates s.
    11(i) and/or s. 11(h).

[43]

Alternatively,
    the appellant submits that even if the judicial screening mechanism does not
    change the sentence imposed, it does change the conditions of the sentence in a
    way that materially increases the appellants punishment by significantly
    increasing the risk of additional incarceration. The appellant submits that the
    onerous screening provision necessarily significantly reduces her chances of
    getting before a jury and ultimately obtaining from a jury some reduction in
    her period of parole ineligibility. The appellant argues that on this view of
    the 2011 amendments, the analysis in
Whaling
applies and the changes
    violate s. 11(h) or s. 11(i) of the
Charter
.

[44]

The respondent counters with the submission that the
    analysis in
Rodgers
and
K.R.J.
is not helpful. Those were cases
    that challenged the imposition of specific sanctions as contrary to either s.
    11(i) or s. 11(h). In
Rodgers
, the court had to decide whether a
    post-sentence order, requiring an offender to provide a DNA sample, constituted
    additional punishment under s. 11(h). In
K.R.J.
, the court had to decide whether the imposition of
    probation terms pursuant to
Criminal Code
provisions enacted after the offender had committed
    the crimes, but before he was sentenced, violated the prohibition against
    retrospective increases in punishment in s. 11(i).

[45]

Counsel
    for the Crown argues that there is no new sanction being imposed on the
    appellant in this case. The appellants sentence remains exactly as imposed.
    Before and after the 2011 amendments, she was serving a sentence of life
    imprisonment without eligibility for parole for 25 years with the right to seek
    a reduction in that parole ineligibility period after 15 years. According to
    the Crown, the changes to the faint hope provisions, and in particular the
    judicial screening requirement, relate only to the means by which the
    applicants request for a reduction in parole ineligibility will be processed.
    Her punishment for the crime of murder is unchanged.

[46]

The
    respondent contends that the appellants situation is analogous to that considered
    in
Whaling
, where the Supreme Court of Canada considered whether
    changes in the scheme governing parole eligibility amounted to punishment under
    s. 11. The respondent submits that the changes to the process by which the
    faint hope application is considered do not, either in their purpose or
    effect, result in additional punishment under the test enunciated in
Whaling
.

[47]

Alternatively,
    the respondent argues that any infringement of s. 11 is justified under s. 1 of
    the
Charter
.

C: The Reasons of the
    Application Judge

[48]

The
    application judge drew heavily on the reasons in
Jenkins
, both in
    tracing the history of the faint hope provisions and analysing the judgments
    in
Rodgers
and
Whaling
. He described the faint hope
    provisions and the changes made in those provisions as a hybrid that did not
    fit comfortably into the paradigms presented in either
Rodgers
or
Whaling
.
    In
Rodgers
, Parliament introduced a mechanism by which sentenced
    offenders could be required to provide DNA samples for inclusion in a national
    DNA databank, thereby arguably imposing an additional punishment upon them
    after sentencing. In
Whaling
, Parliament repealed the right to early
    parole for certain offenders, thereby changing the conditions of their
    sentences in a manner than lengthened their incarceration. In this case,
    Parliament made changes to an offenders right to apply for a reduction in
    parole ineligibility, but did not remove that right.

[49]

Ultimately,
    the application judge concluded that the changes to the faint hope process
    were much closer to the changes in parole eligibility examined in
Whaling
than to the imposition of an additional post-sentence sanction considered in
Rodgers
.
    The application judge said, at para. 22:

It seems to me that a modification to the process used to
    determine an offenders chance at early parole is akin to a change in the
    condition of a sentence rather than a change to the ultimate sentence. Thus,
Whaling
is the appropriate framework to determine the
Charter
question.

[50]

Ultimately,
    the application judge held, at para. 29:

I find that [the changes to the faint hope provisions] do not
    increase punishment nor do they fundamentally alter the nature of the sentence
    imposed at the time of the conviction, Cherrylle Dells settled expectation of
    when she could apply for parole was not thwarted by the amendments. She can,
    and indeed has, applied for the opportunity to seek parole after 15 years of
    incarceration. While the procedure to arrive at that determination has no doubt
    changed; her right to apply for a chance of early parole remains.

D: Analysis

[51]

The
    appellants challenge to the judicial screening provision as contrary to s.
    11(i) raises the following question:

Does the insertion of a judicial screening mechanism that
    requires the appellant to convince a judge on the balance of probabilities, and
    on a paper record, that there is a substantial likelihood that a jury will
    reduce the period of parole ineligibility, result in greater punishment than
    would be imposed under a provision which provided for an automatic right to put
    ones case for a reduction in parole ineligibility before a jury?

[52]

The first question that must
    be answered is whether the judicial screening mechanism constitutes
    punishment as that term has been understood for the purposes of ss. 11(h) and
    11(i) of the
Charter
.

(i)

The Meaning of Punishment in s. 11(h) and s. 11(i)

[53]

The
    punishment trilogy (
Rodgers
,
Whaling
and
K.R.J.
)
    approaches punishment for the purposes of s. 11(h) and s. 11(i) in a manner
    tailored to the specific circumstances of each case. Sanctions, which are
    imposed as a consequence of conviction in furtherance of the purpose and
    principles of sentencing, are viewed as punishment:
K.R.J.
, at para. 41.
    Similarly, other changes in the terms or conditions of a sentence that thwart
    or compromise the offenders reasonable liberty or security of the person expectations
    will be regarded as punishment for the purposes of s. 11(h) and s. 11(i):
Whaling
, at paras. 57, 60, and 63
.

[54]

I
    accept that the mandatory 25-year period of parole ineligibility and the right
    to apply for a reduction of that period of parole ineligibility after 15 years
    are integral parts of the sentence imposed on the appellant for the crime of
    first degree murder:
Jenkins
, at paras. 70-74. It does not, however,
    follow that any legislative change relating to the manner in which the faint
    hope process is implemented or administered necessarily alters the appellants
    reasonable liberty or security expectations.

[55]

In
    deciding whether a particular legislative provision, or other state action,
    amounts to punishment, the court takes a pragmatic and functional approach, focusing
    on the actual impact of that legislation or state conduct on the offenders
    liberty and security interests. In other words, what does the impugned state
    action actually do to the offenders liberty expectations?: see
K.R.J.
, at paras. 36-41;
Whaling
, at para. 52
.

[56]

In cases like
Rodgers
and
K.R.J.
, in which the challenged legislation imposed a
    specific sanction as a consequence of a criminal conviction, the punishment
    inquiry is relatively straightforward. A sanction imposed as a consequence of a
    conviction will constitute punishment if either the sanction is imposed pursuant
    to criminal law sentencing purposes, or the sanction has a significant negative
    impact on the offenders liberty or security interests:
K.R.J.
, at para. 41. In most cases, sanctions imposed as
    part of sentence in a criminal proceeding will constitute punishment:
R.
    v. Hooyer
, 2016 ONCA 44, 129 O.R. (3d)
    81, at para. 43.

[57]

A
    broad concept of punishment as applied to sanctions imposed in the criminal law
    context is consistent with the rationale underlying the constitutional
    protections in s. 11(h) and s. 11(i). Under long-accepted notions of fairness
    and predictability pertaining to criminal sentencing, offenders reasonably
    expect that they will not be subject to more onerous criminal sanctions introduced
    after the crime was committed. Similarly, offenders reasonably expect that they
    will be sentenced only once and will not be subject to added criminal sanctions
    imposed at some time after the initial sentencing. The reasonable liberty
    expectations of the offender are reflected in the rationale underlying s. 11(h)
    or s. 11(i).

[58]

Legislation
    or other state conduct that does not impose or alter a criminal sanction may
    still constitute punishment under s. 11(h) or s. 11(i). Changes in the
    conditions of an offenders sentence can sufficiently compromise reasonable
    settled expectations of liberty to constitute additional punishment for the
    purposes of s. 11(h) and s. 11(i):
Whaling
, at para. 63. As observed
    in
Whaling
, at para. 59, it is a question of degree:

Even where a change to the conditions of a sentence engages a
    liberty interest under s. 7, it may nonetheless be consistent with the
    principles of fundamental justice. Some line drawing becomes necessary. In my
    view, this same basic point applies to a retrospective change that constitutes
    double punishment in the s. 11(h) context. Some retrospective changes to the
    parole system affect the expectation of liberty of an offender who has already
    been sentenced to such an extent that they amount to new punishment, while
    other changes have a more limited impact and do not trigger
Charter
protection.

[59]

Like
    the application judge, at para. 22, I think the situation presented in this
    case is much closer to the situation in
Whaling
than those in
Rodgers
or
K.R.J.
The insertion of the
    judicial screening mechanism into the faint hope process does not impose a
    new sanction or alter the sanction actually imposed. The appellant was serving
    a sentence of life imprisonment without eligibility for parole for 25 years.
    She had the right to apply for a reduction of the period of parole ineligibility
    after 15 years. She remains subject to a life sentence without eligibility for
    parole for 25 years and with the opportunity to apply for a reduction in her
    parole ineligibility. The screening mechanism does, however, alter the process
    by which applications for a reduction in parole ineligibility are processed and
    determined. Like the changes to parole eligibility challenged in
Whaling
,
    the changes to the faint hope process can impact on when an offender will be
    eligible for release on parole. On the analysis in
Whaling
, that
    impact may or may not amount to additional punishment for the purposes of s.
    11(i) or s. 11(h).

(ii)

The
Whaling
Analysis

[60]

Whaling
involved a constitutional challenge to legislation
    that retrospectively repealed
Accelerated Parole Review (APR) and
    left prisoners who had previously been able to access early parole subject to
    the generally applicable parole regime. Under APR, first-time, non-violent
    offenders, serving penitentiary terms, were eligible for release prior to the usual
    parole date. APR employed a streamlined, paper review process and a test for
    parole that presumed eligibility. None of those advantages were available under
    the normal parole provisions.

[61]

Mr. Whaling had been
sentenced
    before the repeal of APR. He was serving his sentence at the time of repeal. Under
    the terms of the legislation, the repeal of APR applied to all persons serving
    sentences, even if they had been sentenced before the repeal. The repeal of APR
    delayed Mr. Whalings parole eligibility by three months. Other prisoners
    involved in the litigation had their parole eligibility delayed by as much as
    21 months:
Whaling
, at paras.
    16-17.

[62]

Wagner J. (as he then was), writing for the entire
    court, described the s. 11(h) claim advanced in
Whaling
as fundamentally different than that considered in
    earlier cases.
Whaling
did not involve a second proceeding that imposed a second sanction for the same
    offence (
e.g.

R.
    v. Wigglesworth
, [1987] 2 S.C.R. 541) or post-sentence legislation authorizing
    the imposition of some additional sanction as a consequence of conviction (
e.g.
Rodgers
, at paras. 1-2). Wagner J. recognized, at para. 54, that
    double punishment claims under s. 11(h) could reach
[r]
etrospective changes to the conditions of the original
    sanction which have the effect of adding to the offenders punishment.

[63]

To
    distinguish those changes in the conditions of a sentence that constituted
    additional punishment from those that did not, the court focused on the impact
    of the change on the offenders settled reasonable expectation of liberty,
    stating, at para. 60:

I will not articulate a formula that would apply to every case,
    because such a formula is not needed to resolve this appeal and the effect of
    every retrospective change will be context-specific. That said, the dominant
    consideration in each case will in my view be the extent to which an offenders
    settled expectation of liberty has been thwarted by retrospective legislative
    action. It is the retrospective frustration of an expectation of liberty that
    constitutes punishment. At one extreme, a retrospective change to the rules
    governing parole eligibility that has the effect of automatically lengthening
    the offenders period of incarceration constitutes additional punishment
    contrary to s. 11(h) of the
Charter
. A change that so categorically
    thwarts the expectation of liberty of an offender who has already been
    sentenced qualifies as one of the clearest of cases of a retrospective change
    that constitutes double punishment in the context of s. 11(h).

[64]

Wagner
    J. characterized the retrospective denial of eligibility for early parole,
    without regard to the individual circumstances of the offender, as a clear case
    of double punishment under s. 11(h). Offenders reasonably expected that they
    would be eligible for release on early parole if they qualified under
    legislation existing at the time they were sentenced. The amendments entirely
    destroyed that expectation and, in doing so, thwarted the offenders reasonable
    expectation of liberty:
Whaling
,
    at paras. 65-72. Wagner J. went on
, at para. 63:

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 offenders circumstances continues to prevail and procedural rights
    continue to be guaranteed in the determination of parole eligibility.
[Emphasis
    added.]

(iii)

Applying
Whaling
to This Case

[65]

I
    begin by identifying the legislation to which the
Whaling
analysis
    must be applied.  As set out earlier in these reasons, there was no judicial
    screening process in place when the appellant committed murder. The 1996
    version of the judicial screening mechanism was in force when she was sentenced
    to life imprisonment without parole for 25 years in 2001, and the 2011 version
    was in force when she brought her faint hope application in 2013. The
    appellant submits that the 2011 legislation is properly the subject matter of
    her constitutional challenge.

[66]

In
Simmonds
, which is chronologically in
distinguishable
    from this case, the British Columbia Court of Appeal accepted the offenders
    submission that the 1996 legislation, which was in effect when the offender was
    sentenced, was properly the subject matter of the constitutional challenge, even
    though it had been repealed and replaced by the 2011 amendments by the time the
    offender made his faint hope application: see
Simmonds
, at paras. 1-2, 72, 89, 96-97.

[67]

I agree with counsel for the appellant that the operative
    legislation at the time of the faint hope application, that is the 2011
    amendments, and not the repealed 1996 amendments, are the proper subject matter
    of the constitutional challenge. With respect, I would not follow
Simmonds
on this point.

[68]

In my view, the operative legislation, for the purposes of the
    constitutional challenge, must be the legislation applied to the appellants faint
    hope application. The appellant was faced with the substantial likelihood
    test and not with the reasonable prospect test. The latter had been repealed.
    If the legislation, as it was to be applied against the appellant, increased
    the punishment from the punishment that was in place when the appellant
    committed murder in 1995, the appellants right under s. 11(i) would be breached.

[69]

The appellant argues that the 2011 legislation violates s. 11(i) in
    both its purpose and effect: see
Whaling
, at
    paras. 64-71. The appellant submits that the purpose of the 2011 amendments, as
    applied to persons who had previously committed murder, was to retrospectively
    reduce the chances that those offenders would obtain a reduction in their
    parole ineligibility. She submits this is the same thing as saying the purpose
    of the legislation was to increase the punishment of those offenders.

[70]

The
    appellants submission has merit. A review of the legislative history when the
    2011 amendments were introduced makes it clear that the government of the day
    saw the faint hope process as detrimental to the proper administration of
    justice. The Minister of Justice said as much when discussing the Bill containing
    the 2011 amendments in the Senate:

In my opinion, existence of the faint hope
    clause reduces peoples confidence in the criminal justice system. (Canada,
    Standing Senate Committee on Legal and Constitutional Affairs,
Official
    Report of Proceedings (Hansard)
, 40th Parl., 3rd Sess., No. 9 (June 9-10,
    2010), at p. 9:11 (Hon. Robert Nicholson, Minister of Justice and Attorney
    General of Canada))

[71]

The
    2011 amendments introduced the substantial likelihood test, entirely
    eliminated the faint hope process on a going forward basis, and imposed
    significant limits on the bringing of faint hope applications by those still
    eligible to bring those applications.
[7]
The amendments appear designed to limit, to the extent constitutionally
    possible, an offenders chances of successfully invoking the faint hope
    process to obtain a reduction in the period of parole ineligibility.

[72]

However,
    I find it difficult in the present circumstances to separate purpose from
    effect when considering whether this legislation offends s. 11 under the
Whaling
analysis. I think it is easier under the
Whaling
analysis to move directly to a consideration of the
    effect of the legislation on the offender.

[73]

In
    applying the
Whaling
analysis, I start by acknowledging two important
    differences between the effects of the legislation considered in
Whaling
and the effects of the changes in the faint hope process. First, the
    insertion of the judicial screening procedure into the faint hope process
    does not deny offenders the opportunity to seek a reduction in the period of
    parole ineligibility from a jury. In that sense, the change in the faint hope
    process effected by the introduction of judicial screening is less severe than
    the complete elimination of early parole as occurred in
Whaling
.
    Second, despite the introduction of a judicial screening process, the faint
    hope inquiry remains focused on the circumstances of the individual offender
    and continues to provide full procedural protection to the offender. Individualized
    assessments and procedural protections are indicators of a lower risk of
    additional incarceration:
Whaling
,
    at para. 63.

[74]

These two differences take this case out of the clearest of
    cases category referred to in
Whaling
, at para. 60. They are not, however, determinative of the outcome of
    this appeal. As
Whaling
and
K.R.J.
instruct,
    the analysis must be functional and pragmatic. What exactly do the impugned
    changes in the faint hope process do to the appellants reasonable liberty
    expectations?

[75]

First and foremost, the introduction
    of the judicial screening mechanism took from the appellant the absolute right she
    had under the legislation, as it existed when she committed murder, to personally,
    or through counsel, make a plea directly to a jury for clemency as reflected by
    a reduction in her period of parole ineligibility. Unless one makes the
    entirely unwarranted assumption that all applications dismissed at the judicial
    screening stage would inevitably fail before a jury, the insertion of judicial
    screening means that some offenders, who would have had their parole
    ineligibility reduced by the jury, lose the benefit of that reduction. The introduction
    of a judicial screening step in the faint hope process that necessarily eliminates
    some cases from the jurys consideration will inevitably make the overall
    process less advantageous from the offenders perspective:
Simmonds
, at para. 94.

[76]

The negative impact of
    the judicial screening mechanism on the offenders liberty expectations is made
    all the more obvious by the 2011 amendments. The change from the 1996 standard
    of reasonable prospect to the 2011 standard of substantial likelihood means
    that those applications that have a reasonable prospect of success before the
    jury, but not a substantial likelihood of success will be rejected at the
    judicial screening phase and never get before the jury. Consequently, offenders
    who, even in the eyes of the reviewing judge, have a reasonable prospect of having
    their parole ineligibility reduced by the jury will never have the opportunity
    to make that case to the jury, because they do not clear the greater hurdle of
    establishing a substantial likelihood that the jury would decrease the period
    of parole ineligibility. Put in functional terms, some offenders, who have a
    reasonable prospect of obtaining a reduction in their parole ineligibility from
    a jury, will not after the 2011 amendments ever have the opportunity of putting
    their case to a jury. They will instead serve their full period of parole
    ineligibility: see
Point
,
    at paras. 30-37;
Gayle
,
    at para. 10;
Paul
, at
    para. 8;
Morrison
, at
    para. 42.

[77]

The impact on the
    outcome of faint hope proceedings caused by the introduction of judicial
    screening cannot be quantified. No one can say how many applicants who fail at
    the judicial screening stage would ultimately have succeeded before the jury. There
    does not appear to be any data available on how many applications fail or
    succeed at the judicial screening stage.
[8]

[78]

The data does, however,
    indicate that any loss of access to the jury by the offender is a significant
    loss from the perspective of the offenders liberty interests. Based on the
    statistics gleaned by counsel for the appellant, derived from Public Service Canada
    and a legislative background paper, and not challenged by the respondent, the
    term faint hope is a misnomer.

[79]

For example, one paper concluded that about 80% of
    offenders who had completed their faint hope applications before October 28,
    1996 succeeded in obtaining some reduction of their period of parole
    ineligibility. All of these applications went directly to the jury: see Marilyn
    Pilon, Murderers Parole Eligibility: The Evolution of Judicial Review
    (Ottawa: Library of Parliament, October 1993, revised March 1997), at p. 4.
    While the data for the post-judicial screening period is incomplete and in some
    ways unclear,
[9]
it still indicates that applications that get before
    a jury succeed in a significant majority of the cases: see Public Safety Canada,
Corrections and Conditional Release Statistical Overview (2015
    Annual Report)
(Ottawa: Public Works
    and Government Services Canada, 2016), at pp. 105-106.

[80]

The
    difficulty in attempting to quantify the effect of introducing judicial
    screening on the offenders chances of obtaining a reduction in parole
    ineligibility is made all the more acute by the nature of the decision the jury
    makes in a faint hope proceeding. To a large extent, the outcome of the
    jurys deliberations defies prediction:
Jenkins
, at paras. 37-40.

[81]

The
    jurys function on a faint hope application is much different than its
    function at the end of a criminal case. Verdicts are predicated on the
    application of legal principles provided to the jury by the trial judge and
    applied to the facts as found by the jury. In making those findings, the jury is
    bound by the evidence it hears. On a faint hope hearing, the jury has
    virtually unfettered discretion to allow or deny the application. That
    discretion is not confined or structured by legal principles or findings of
    fact. The jury can make a subjective assessment and give the various relevant factors
    whatever weight it deems appropriate. In the end, the jury decides what the
    offender deserves. The jury offers no explanation for the decision and no
    appeal is available from that decision:
Jenkins
, at paras. 41-46.

[82]

Save in the obvious
    cases, I think a judge, reviewing a written record only, would be hard-pressed
    to make a reliable assessment of how a jury would react to an offenders plea
    for clemency presented
viva voce
to that jury. It is misleading to describe the judicial
    screening phase of the faint hope process and the jury phase of that process as
    part of a single assessment. It is more accurate to view the judicial screening
    process as a distinct inquiry, intended to limit the jurys power to extend
    leniency to applicants. Pomerance J., in
Jenkins
, at para. 46, captures the essence of the judicial
    screening process:

[I]n faint hope cases, it
    is always open to the jury, as a matter of law, to allow an application. This
    flows from the breadth of the jurys discretion. The question for the screening
    judge is not whether it is open to the jury to reduce parole ineligibility.
    That option is available in every case. Nor is the question what a jury will
    actually do in a given case. That requires a level of prescience that no judge
    can claim. What we are really asking as judges is whether a jury
should
allow the application.

[83]

The introduction of the
    judicial screening phase fundamentally alters the dynamic of the faint hope
    process. It does so by placing a significant judicial restraint on the jurys
    discretion and by requiring that a judge exercise that restraint based entirely
    on written material. Depersonalization of what is essentially a plea for mercy
    cannot help the pleader.

[84]

I am satisfied that,
    viewed functionally and pragmatically, the judicial screening process, as
    applied to the appellants application, makes a significant change in the
    faint hope process:
Jenkins
, at para. 99. By imposing a judicial screening process, Parliament
    limited the jurys power, as the representative of the community, to grant
    leniency to offenders. The data suggests that the denial of access to the jury substantially
    increases the risk of longer periods of incarceration for faint hope
    applicants. The 2011 amendments took from the appellant a reasonable
    expectation that, after 15 years in custody, she would be entitled to ask the
    community, as represented by the jury, for leniency as reflected in a reduction
    in her parole ineligibility.

[85]

The introduction of
    judicial screening worked to the detriment of offenders seeking a reduction in
    parole ineligibility. I cannot quantify that detriment. The line-drawing
    exercise referred to in
Whaling
is very much engaged here. The continued availability of a reduction
    in parole ineligibility, and the continued individualized nature of the faint
    hope assessment, both argue for a finding that the changes in the process,
    while detrimental to the appellant, do not increase her punishment.

[86]

Ultimately, however, I
    am satisfied that the appellants right to seek a reduction in her parole
    ineligibility period was meaningfully impaired by the provision which denied
    her a right to make a plea for that reduction directly to a jury. The requirement
    that she first convince a judge, on a balance of probabilities, and on a written
    record only, that there was a substantial likelihood that the jury would
    reduce the period of parole ineligibility significantly increases her risk of
    additional incarceration. The impact on the appellants reasonable liberty
    expectation, while not quantifiable, is very real and significant.

[87]

I would hold that the
    2011 amendments to the faint hope process increased the punishment for the
    offence when compared to the provisions in place at the time the appellant
    committed murder. Subject to s. 1 of the
Charter
, the appellant is constitutionally entitled to the
    benefit of the lesser punishment as reflected in the faint hope provisions as
    it stood in 1995.

(iv)

Is the Limitation
    Justified Under s. 1?

[88]

Section 1 of the
Charte
r states:

The
Canadian
    Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it subject only to such
    reasonable limits prescribed by law as can be demonstrably justified in a free
    and democratic society.

[89]

The application of s. 1
    to retrospective penal legislation that infringes s. 11(i) was considered in
    three separate judgments in
K.R.J.
Those judgments yielded three different s. 1
    evaluations.

[90]

Section 1 requires the
    government to show, on the balance of probabilities, that the impugned
    legislation furthers a governmental objective that is both consistent with the
    values of a free and democratic society and sufficiently important to justify a
    limitation on individual constitutional rights. If the government can point to
    a valid objective, it must show that the means chosen to effect that objective
    are proportionate to the objective:
K.R.J.
, at para. 58;
R. v. Oakes,
[1986] 1 S.C.R. 103, at pp. 138-139.

[91]

The s. 1 inquiry focuses
    on the legislation that is the source of the alleged
Charter
infringement. The appellant does not allege that the
    judicial screening process is in and of itself contrary to s. 11(i). It is not
    the judicial screening process that must be justified under s. 1. It is the retrospective
    application of that process, including the substantial likelihood test, to persons
    who committed murder before the amendments were enacted that must be justified
    under s. 1:
K.R.J.
, at
    para. 62.

[92]

Crown counsel submits
    that the objective of the legislation is to protect friends and families of
    murder victims from needless re-victimization and unnecessary trauma. The Crown
    contends that faint hope applications before a jury often reopen old wounds
    and revisit old traumas suffered by the friends and relatives of murder
    victims. Counsel submits that, while this pain and suffering may be inherent in
    the faint hope process, that re-victimization is needless and cruel in
    situations in which the offender had no realistic prospect of obtaining any
    reduction in parole ineligibility. Applications like the one brought by the
    notorious serial killer, Clifford Olsen, in 1996, are pointed to by the Crown as
    evidence of the need for legislation to protect victims and family members from
    needless re-victimization through the bringing of meritless faint hope
    applications.

[93]

The legislative history
    pertaining to both the 1996 and 2011 amendments indicates that the Crown has
    correctly identified at least one of the objectives behind the introduction of
    the judicial screening process. Both Ministers of Justice who introduced the
    amendments justified the screening mechanism as a means of protecting friends
    and relatives of murder victims from the needless pain and trauma associated
    with going through a clearly meritless faint hope proceeding before a jury: Canada,
    House of Commons,
Official Report of Debates (Hansard),
35th Parl., 2nd Sess., No. 62 (14 June 1996), at p. 3856
    (Hon. Allan Rock, Minister of Justice and Attorney General of Canada);
Canada, Standing Senate Committee on Legal and Constitutional
    Affairs,
Official Report of Proceedings (Hansard)
, 40th Parl., 3rd
    Sess., No. 9 (June 9-10, 2010), at pp. 9:7-9:9 (Hon. Robert Nicholson, Minister
    of Justice and Attorney General of Canada)
.

[94]

The government objective
    described by the Ministers of Justice is sufficiently important to justify a
    limitation on an individuals right under s. 11(i). The trauma and
    re-victimization visited on friends and relatives of murder victims applies
    equally to applications brought by offenders who committed murder before or
    after the introduction of the judicial screening mechanism. To prevent that needless
    trauma, legislation aimed at pre-empting meritless applications before they
    reach the jury had to be made retrospective:
Simmonds
, at para. 103.

[95]

The 2011 amendments
    serve a valid and important societal objective. The question becomes whether
    their effect is proportionate to that objective:
K.R.J.
, at para. 58.

[96]

In
    assessing whether the impact on an individuals
Charter
rights is
    proportionate to the societal interest served by the legislation, the court
    must defer, to some extent, to decisions made by the legislature. The
    legislature cannot be held to an impractical and unattainable standard of
    perfection when it comes to matching means and ends:
K.R.J.
, at para.
    67. A deferential approach is especially warranted in a case like this one. The
    subjective nature of the jurys decision on a faint hope application makes it
    impossible to define a judicial screening standard that would screen out only cases
    that would not succeed before the jury.

[97]

Deference
    cannot, however, justify judicial abdication of its responsibility under s. 1. The
    court must determine whether the limit on the
Charter
right imposed by
    the legislation is reasonably tailored to the legislative objective. If other
    government measures, having a less harmful impact on the constitutional right,
    could achieve the same objective in a real and substantial manner, the
    legislation fails the proportionality component of the s. 1 test:
K.R.J.
,
    at para. 70, quoting
Alberta v. Hutterian Brethren of Wilson Colony
,
    2009 SCC 37, [2009] 2 S.C.R. 567, at para. 55.

[98]

The
    legislative history of the faint hope legislation avoids the need to
    speculate or present hypotheticals as to alternative measures that were available
    to achieve Parliaments objective in a manner that caused less harm to the
    individual right protected under s. 11(i). The 1996 amendments removed
    applications in respect of which the applicant had no reasonable prospect of
    success before the jury. An application that falls outside of the range of a
    reasonable prospect of success can, in my view, be equated in the eyes of the
    law with a meritless application.

[99]

In
Simmonds
, at paras. 106-107, the court held that the 1996 amendments
    met the proportionality requirement in s. 1:

In my view, [the 1996 amendments] were appropriately tailored
    and limited, given that the reasonable prospect standard is very low (in
    substance, the equivalent of meritless) and the judge must apply the same
    factors considered by a jury in reaching a screening decision.

It met the pressing government need to avoid re-victimizing the
    families of murder victims, including those murdered before January 9, 1997, by
    enabling judges to screen out meritless applications, while preserving the
    faint hope regime rather than repealing it as advocated by some. In doing so,
    the amendment preserved meaningful access for offenders to mercy in the face of
    harsh legal justice, which was itself a parliamentary compromise.

[100]

I find the s. 1
    analysis of the 1996 amendments in
Simmonds
persuasive. However, for
    the reasons set out above, I think the 2011 amendments are properly the subject
    matter of the constitutional challenge. Those provisions go far beyond the
    screening out of meritless applications and foreclose applications which have a
    reasonable prospect of success before the jury. In doing so, they overshoot, by
    a large margin, the objective of the legislation. As a result, the 2011
    amendments are neither rationally connected to the governments stated
    objective, nor do they minimally impair the appellants s. 11(i) right. The
    government has not met its onus under s. 1.

V

conclusion

[101]

Section 11(i),
    in effect, contains its own remedy. If the punishment for an offence has been
    increased between the time of the offence and the time of sentence, the
    offender is constitutionally entitled to the benefit of the punishment as it
    existed at the time of the offence. It is not for a court to substitute some
    other punishment, even if, in the courts view, that punishment could pass
    constitutional muster as a justifiable limit on the s. 11(i) right.

[102]

I have concluded
    that the judicial screening mechanism contained in the 2011 amendments violates
    the appellants s. 11(i) right. To the extent that s. 745.61(1) of the
Criminal
    Code
imposes a judicial screening requirement on applicants who committed
    murder prior to January 9, 1997, that provision is of no force and effect.

The
    appellant is entitled to bring her faint hope application directly before a jury.
[10]

[103]

I would allow
    the appeal. The appellant is entitled, if so inclined, to make an application
    to the Superior Court of Justice for an order impanelling a jury to hear her
    faint hope application.

Released: DD  AUG 02 2018

Doherty J.A.

I agree H.S. LaForme
    J.A.

I agree D.M. Paciocco
    J.A.

[1]
In
R. v. Chaudhary
(1999), 139 C.C.C. (3d) 547, (Ont. S.C.) LeSage C.J.
    upheld the constitutionality of this provision. The provision had been
    challenged under s. 7 of the
Charter
.

[2]

The amendments also eliminated entirely the faint hope
    clause for persons who committed the relevant offence after the 2011 amendments
    came into force: see
An Act to Amend the Criminal Code and Another
    Act
, s. 3(2).

[3]

The appellant also relies to a lesser extent on
    s. 7 of the
Charter
. Given my conclusion with respect to s. 11 of the
Charter
,
    I need not address her s. 7 challenge.

[4]

Section 11(h) also protects individuals who have been
    convicted or acquitted of an offence from being prosecuted a second time for
    that offence. That aspect of s. 11(h) is not engaged in this case.

[5]
In
R. v. Luke
(1994), 17 O.R. (3d) 51 (C.A.), leave to appeal refused,
    [1994] S.C.C.A. No. 299, and
R. v. Dunn
, [1994] O.J. No. 279 (C.A.),
    this court held that s. 11(i) applies to sentencing at the trial level and had
    no application to review of sentence on appeal:
Luke
, at para. 24;
Dunn
,
    at para. 8. Those cases, of course, preceded
Olah
. In addition,
Dunn
was reversed in the Supreme Court of Canada:
R. v. Dunn
, [1995] 1
    S.C.R. 226. The majority held that an appellant could rely on changes in the
    relevant sentencing provisions brought into effect between sentencing and the
    appeal. The majority rested its conclusion on s. 44(e) of the
Interpretation
    Act
, R.S.C. 1985, c. I-21. That provision, however, closely parallels the
    statutory protection created by s. 11(i). In my view, the courts
    interpretation of s. 44(e) as extending to the appeal stage, offers at least a
    strong hint that it would take the same approach to s. 11(i).

[6]
In
Jenkins
, the offence was committed after the judicial screening
    mechanism was introduced into the faint hope process, but before the stricter
    test was enacted in 2011. Pomerance J., while holding that the faint hope
    scheme in place at the time of sentencing formed part of the applicants
    original sentence for murder, held that the variation in the judicial screening
    test did not add to the punishment and therefore did not violate s. 11(h) of
    the
Charter
:
Jenkins
, para.
    5
.

[7]
The 2011 amendments provided that if a faint hope application were
    unsuccessful, the application judge or jury could set a time, no earlier than
    five years from the date of the determination, for bringing a further
    application. The previous scheme permitted the application judge or jury to set
    a time no earlier than two years from the date of the determination. In both cases,
    the judge or jury could also decide that the applicant should not be permitted
    to bring any further application:
An Act to Amend the Criminal Code and
    Another Act
, S.C. 2011, c. 2, s. 4(3).
The 2011 amendments further imposed strict timelines on the commencement of a
    faint hope application:
An Act to Amend the Criminal Code and Another Act
, S.C. 2011, c. 2, s. 3(3).

[8]

A review of the reported cases between 2007 and 2017 does
    suggest that the introduction of judicial screening, particularly under the
    2011 standard, has significantly reduced access to the jury. Of the 16 reported
    cases under the 1996 standard, 10 went on to the jury. Of the 23 reported cases
    using the 2011 standard, only 8 went on to the jury.

[9]

Notably, it is not clear whether the data from Public Safety
    Canada includes only applications that were screened in and referred to a jury,
    or both applications that were screened out and applications that were screened
    in and referred to the jury. Furthermore, counsel acknowledges that the data
    may be slightly skewed because Correctional Service Canada only records the
    latest decision, thereby excluding previously unsuccessful applications.

[10]

These reasons address only the judicial screening provision.
    The applicant has not challenged the retrospective application of any of the
    other changes in the legislation applicable to her faint hope application.