Canada (Attorney General) v. Whaling, 2014 SCC 20:
W, S and M were all serving federal penitentiary sentences. As first‑time, non‑violent offenders, all three were eligible for accelerated parole review (“APR”) under the system in place at the time of their sentencing. With the coming into force of the Abolition of Early Parole Act (“AEPA”), APR was abolished. Section 10(1) of the AEPA made the abolition of APR apply retrospectively to offenders already serving their sentences. This changed the timing of eligibility for day parole: eligibility after the offender had served one sixth of the sentence or six months was replaced with eligibility six months before the full parole eligibility date. Because the effect of the APR’s abolition was to delay the day parole eligibility dates of W, S and M, they challenged the constitutionality of s. 10(1). Both the trial judge and the Court of Appeal held that s. 10(1) infringed their right guaranteed by s. 11(h) of the Charter not to be “punished . . . again” for an offence and that the infringement was not saved under s. 1.
Held: The appeal should be dismissed.
Section 10(1) of the AEPA infringes s. 11(h) of the Charter. The introductory words to s. 11 provide that its subject is a “person charged with an offence”. Paragraph (h) then provides that this person has the right, if found guilty and punished for the offence, not to be tried or punished for it again. The disjunctive language of the words “tried or punished” indicates that s. 11(h)’s protection against additional punishment is independent of its protection against being tried again. In other words, the protection applies to both the harassment of multiple trials and the harassment of additional punishment. The conjunctive language of the words “found guilty andpunished” further accentuates the disjunctive language of “tried or punished”. It is thus clear from the plain meaning of the words that either being tried again or being punished again is sufficient to engage s. 11(h).
While the academic literature focuses on the fine points of what constitutes a second proceeding for the purposes of s. 11(h), this does not preclude its application to cases of “punish[ment] . . . again” in which no such proceeding took place. If anything, the lack of literature on this subject speaks less to the scope of the provision than to the relative infrequency of such infringements.
Even in the few s. 11(h) cases, such as R. v. Wigglesworth,  2 S.C.R. 541, this Court found that the protection against double jeopardy could be triggered by proceedings that are criminal in nature or by “true penal consequences”. More recently, in R. v. Rodgers, 2006 SCC 15,  1 S.C.R. 554, the Court articulated a test for determining whether a given consequence or sanction constitutes punishment. However, the question in this case eludes either test. Rather than requiring us to determine whether a discrete sanction is punitive in nature, this case requires us to determine whether retrospective changes to parole eligibility, which modify the manner in which an existing sanction is carried out, constitute punishment. The alleged punishment is neither a second proceeding nor a sanction in the sense contemplated in Rodgers. Rather, the offender’s expectations about the original punishment or sanction have been frustrated and this is said to constitute new punishment.
The effect of every retrospective change will be context‑specific. The dominant consideration in each case will be the extent to which an offender’s expectation of liberty has been thwarted by retrospective legislative action. It is the retrospective frustration of an expectation of liberty that constitutes punishment. Indeed, retrospective change that has the effect of automatically lengthening the offender’s period of incarceration represents one of the clearest of cases of retrospective double punishment under of s. 11(h).
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 offender’s circumstances continues to prevail and procedural rights continue to be guaranteed in the determination of parole eligibility. A change that directly results in an extension of the period of incarceration without regard to the offender’s individual circumstances and without procedural safeguards in the assessment process will clearly violate s. 11(h).
In this case, the purposes served by applying the AEPA to all offenders — rehabilitation, reintegration, public safety and confidence in the administration of justice — are not in issue. However, the fact that Parliament had legitimate authority to legislate for such purposes does not shield the AEPA from constitutional scrutiny with regard to its effect.
The effect of the AEPA was to deprive W, S and M of the possibility of being considered for early day parole and to extend their minimum period of incarceration. In this way, s. 10(1) had the effect of punishing W, S and M again. Because that effect was automatic and without regard to their individual circumstances, theirs is one of those “clearest of cases”. Indeed, the imposition of delayed parole eligibility in this case is analogous to the imposition of delayed parole eligibility by a judge under the Criminal Code as part of the sentence. Imposing this same consequence by means of retrospective legislation triggers the protection against double punishment set out in s. 11(h).
The infringement by s. 10(1) of the AEPA of s. 11(h) of the Charter cannot be saved under s. 1. TheAEPA’s objectives to reform parole administration and to maintain confidence in the justice system are pressing and substantial and its retrospective application is rationally connected to those objectives; however, the Crown has not discharged its burden of proving that there was no less intrusive an alternative to that retrospective application. Indeed, prospective application — as opposed to retrospective — was an alternative available to Parliament that would have enabled it to attain its objectives without infringing s. 11(h). The appeal is dismissed and the remedy ordered by the trial judge upheld.