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PAROLE - Eligibility

Wednesday, July 04, 2018 @ 8:47 AM  


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Appeal by the offender, Simmonds, from a chambers judgment affirming the constitutional validity of judicial screening of his faint hope application in respect of parole eligibility. In 2000, the offender was convicted of first degree murder and sentenced to life imprisonment without eligibility for parole for 25 years in connection with a 1995 execution-style killing. Prior to 1997, a faint hope application to reduce parole ineligibility went directly to a jury for determination. Following the 1997 amendments, a preliminary judicial screening process was introduced to faint hope applications. An offender was required to establish a reasonable prospect of success in order for their application to go before a jury. In addition, jury findings in favour of an offender were required to be unanimous rather than on a two-thirds majority basis. Pursuant to a transitional provision, the judicial screening process applied retrospectively to all applications commenced after January 1997. In 2014, the offender commenced a faint hope application seeking a reduction in his parole ineligibility. In addition, the offender served notice that he sought an order declaring the retrospective application of the judicial screening amendment unconstitutional. The chambers judge held that the judicial screening amendment concerned punishment, but did not increase an offender's punishment, as it did not frustrate a settled expectation of liberty or substantially increase the risk of additional incarceration. On that basis, the chambers judge dismissed the offender's motion, finding no breach of his s. 11(i) Charter rights. The offender appealed.

HELD: Appeal dismissed. The Court of Appeal reached the same result as the chambers judge, adopting a different approach in the punishment analysis. The Whaling test for punishment utilized by the chambers judge applied to changes to parole eligibility where parole eligibility was part of the conditions of a sentence. Where, as here, parole eligibility was part of the sentence itself, the Rodgers/KRJ test applied. Under the Rodgers/KRJ test, where provisions regarding parole eligibility were changed between the time an offence was committed and the time of sentencing, the offender was entitled to application of the most beneficial provisions, unless application of the harsher provisions was justified under the Oakes test. The introduction of judicial screening into the faint hope regime increased the punishment for murder by reducing an offender’s previously direct access to a jury to seek clemency via reduced parole ineligibility. Therefore, the retrospective application of the 1997 amendments to the offender's case violated s. 11(i) of the Charter. However, the violation was justified under s. 1. Given the time lag inherent in the faint hope regime, the pressing objective of avoiding re-victimization through judicial screening, and the limited nature of the screening process, the Oakes justification test was met.

R. v. Simmonds, [2018] B.C.J. No. 991, British Columbia Court of Appeal, R. Goepel, G. Dickson and G.J. Fitch JJ.A., May 28, 2018. Digest No. TLD-July22018005