Prisoners’ Rights Take Centre Stage in High Court

August 2nd, 2020

In a pair of decisions originating in British Columbia, the Supreme Court of Canada has handed down two important decisions affecting the rights of prisoners in Canada.

In the first case, Attorney General of Canada v. Whaling, the Court considered whether the government’s retroactive abolishment of what many called “early parole” was fair to inmates who had been sentenced before the changes were made, given that the new law applied to them.

As noted elsewhere within this blog, the Conservative government’s law and order agenda has begun producing some “push-back” from the Courts, now that cases have begun working their way through the system. We have seen that with drugs, guns and arguably anti-terrorism legislation.

In Whaling, the Court considered the situation for people who were sentenced before Parliament abolished what some had thought was a generous early parole system in Canada, who were losing the opportunity to apply for early parole constituted a punishment because the government decided to make the changes retroactive. The Court compared their situations to those of people who were before a judge who decided to impose a longer period of parole ineligibility due either to their personal circumstances or to those of the offence.

The Court found that there is an important difference between someone who a judge decides deserves a longer period of ineligibility, and the three prisoners in the Whaling case. In their situation, they were losing a right to apply for parole without having their individual circumstances – whether personally or relating to the offence – taken into account. Although the Court confirmed Parliament’s right to make changes to the parole system, it also found that in some cases – like this one – making such changes retroactive may “trigger” constitutional scrutiny. In this case, the Court found that the change constituted an additional punishment not contemplated by their sentencing judges, and thus was “double punishment.” Because of that, the Court found that the retroactive regime would not apply to them.

In Mission Institution v. Khela, the Court considered the complaints of Mr. Khela, serving a life sentence for first degree murder. After an investigation, Mr. Khela was implicated in a plot to stab an inmate at Mission Institution. Mission Institution is a medium security facility, whereas Kent is maximum. Mr. Khela had done his first three years at Kent before being reclassified.

After Mr. Khela’s name surfaced in the stabbing investigation, the warden of Mission Institution conducted an emergency reclassification and Mr. Khela was on his way back to Kent. The difficulty is that the warden did not disclose to Mr. Khela all of the information upon which she had made that decision, and did not summarize what was being withheld.

Although an important focus of the Khela case was whether the correct jurisdiction to hear such challenges – Supreme Court, Federal Court or both – the case also stands as a strong declaration for procedural fairness. Decisions to reclassify, particularly from medium to maximum security institutions, require that the decision-maker give the prisoner all the information that was considered in the making of the decision, or at least to summarize it, and do so within a reasonable time before the final decision is made.

Here, the warden had considered information never provided to Mr. Khela, and the decision to withhold information was never explained or justified. As a result, Mr. Khela was deprived of an opportunity to answer the case against him – a breach of an important principle of natural justice. As a result, the Court found the decision was procedurally unfair and was ultimately unlawful. The Court upheld the original writ of habeas corpus and confirmed that Mr. Khela was to be returned to Mission Institution.

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