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Charter s.11(i) - Lesser Punishment

. Inlakhana v. Canada (Attorney General)

In Inlakhana v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal considered the Charter s.11(i) 'lesser punishment' right ["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"] in an appeal. Here, a prisoner was able to apply Charter 11(i) to her case when parole eligibility stiffened between the commission of her offence and the sentencing. She sought to sue [for "false and unlawful imprisonment, negligence and Charter-related infringements"] for any administrative 'excess incarceration' [SS: my term] - that is, periods that she would have been paroled if the more favourable law had been applied seamlessly.

This appeal challenged the trial court's partial summary judgment award to the government respondent (the appellant first-initiated the summary judgment motion) "releasing the respondent from liability arising from a failure to act expeditiously after the declaration was made":
[1] Souphin Inlakhana was serving a penitentiary sentence of 6 years, 4 months and 27 days. At the time of the commission of the offences for which she was sentenced, the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”) provided for accelerated parole for non-violent offenders serving their first penitentiary sentence. There is no dispute that under this legislation Ms. Inlakhana would have been considered for early parole after one sixth of her sentence, but for the fact that the relevant provisions of the CCRA were repealed on March 28, 2011, about six months before she was convicted and sentenced.

[2] Several inmates at Grand Valley Institution for Women, including Ms. Inlakhana, succeeded in establishing that their s. 11(i) Charter rights had been breached by denying them accelerated parole review. Since the offences for which they were sentenced were committed before the accelerated parole process was abolished, they were entitled to the benefit of lesser punishment: Lewis et al. v. The Attorney General of Canada, 2014 ONSC 6394, aff’d 2015 ONCA 379, leave to appeal refused, [2015] S.C.C.A. No. 325. Therefore, the effect of the decision was that Ms. Inlakhana was eligible for accelerated parole review.

[3] Immediately upon being notified of that decision, the Correctional Service of Canada (“CSC”) started to implement the process for determining Ms. Inlakhana’s parole eligibility. She ultimately received parole 43 days after the constitutional declaration was made.

[4] The appellants, Ms. Inlakhana and the Family Law Act claimants, commenced an action seeking damages for, among other things, false and unlawful imprisonment, negligence and Charter-related infringements. There were two aspects to the claim. The first had to do with the fact that Ms. Inlakhana spent much longer in custody as a result of the unconstitutional retroactive denial of the accelerated parole review system under the CCRA. The second had to do with what the appellants describe as a 43-day delay in processing Ms. Inlakhana’s release from custody on parole after the constitutional declaration was made.

....

[12] Second, the appellants argue that the motion judge erred in dismissing the Charter claim, specifically that Ms. Inlakhana had been denied her s. 7 right to liberty "contrary to the principles of fundamental justice". The appellants contend that the motion judge erred when she suggested that the CSC and Parole Board were mandated to follow a process. They suggest that the following passage from the reasons reflects error:
The [Parole Board] is statutorily required to review all information with respect to an offender in order to determine whether there are grounds to believe that she is likely to commit an offence with violence before the expiration of the sentence: CCRA s. 101(a). I agree that [Ms. Inlakhana’s] release was virtually a "sure thing" but nevertheless, a statutorily mandated process was in place. As a result, it cannot be said that her detention for an additional 43 days was contrary to the principles of fundamental justice.
[13] The appellants suggest that the trial judge erred when she said that there was a statutorily mandated process in place to review information before determining whether Ms. Inlakhana should get parole. We disagree.

[14] Conditional release is governed under the CCRA. In particular, as mentioned earlier, s. 101(a) explicitly requires the Parole Board to take into consideration all manner of enumerated factors and information in “achieving the purpose of conditional release”. While Ms. Inlakhana’s release may have been, as the motion judge put it, “virtually a ‘sure thing’”, the decision about early release was that of the Parole Board and the Parole Board alone. While the information provided to the Board may have informed what it was likely to do, parole could not be granted until all the necessary information was provided to the Board and the Board was able to exercise its discretion in accordance with that information.

[15] We see no error in the motion judge's reasons.


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Last modified: 23-12-23
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