Case information
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35024
Attorney General of Canada, et al. v. Christopher John Whaling, et al.
(British Columbia) (Criminal) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2014-03-24 | Appeal closed | |
| 2014-03-21 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2014-03-21 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2014-03-20 |
Judgment on the appeal rendered, CJ LeB Abe Ro Cro Mo Ka Wa, The appeal from the judgment of the Court of Appeal for British Columbia (Vancouver), Numbers CA040061, CA040063 and CA040059, 2012 BCCA 435, dated November 2, 2012, heard on October 15, 2013, is dismissed and the remedy ordered by the trial judge is upheld. Section 10(1) of the Abolition of Early Parole Act, S.C. 2011, c. 11 violates s. 11(h) of the Charter and is accordingly of no force or effect. Sections 125, 126, 126.1 and, by implication, 119.1 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 continue to apply to offenders who were sentenced prior to March 28, 2011. Dismissed |
|
| 2014-02-27 | Correspondence received from, Notice of change of Law Firm, from Heenan Blaikie to Power Law | British Columbia Civil Liberties Association |
| 2014-01-16 | Correspondence received from, (Letter Form), Cheryl D. Mitchell, decision of the Quebec Superior Court in Bélanger et al. c. Canada (Commission des Libérations Conditionelles du Canada et al. dated January 9, 2014. AG of Canada has filed a Notice of Appeal in Bélanger. , (Electronic version filed on 2014-01-16) | Attorney General of Canada |
| 2013-10-29 | Transcript received, (95 pages) | |
| 2013-10-15 | Judgment reserved OR rendered with reasons to follow | |
| 2013-10-15 | Intervener's condensed book, (Book Form), Submitted in Court (14 copies) | British Columbia Civil Liberties Association |
| 2013-10-15 | Respondent's condensed book, (Book Form), Submitted in Court (14 copies) | Christopher John Whaling |
| 2013-10-15 | Appellant's condensed book, (Book Form), Submitted in Court (14 copies) | Attorney General of Canada |
| 2013-10-15 | Acknowledgement and consent for video taping of proceedings, From all parties | |
| 2013-10-15 |
Hearing of the appeal, 2013-10-15, CJ LeB Abe Ro Cro Mo Ka Wa Judgment reserved |
|
| 2013-10-11 | Supplemental document, Supplemental authorities, Completed on: 2013-10-11 | Christopher John Whaling |
| 2013-10-08 | Supplemental document, Supplemental Book of Authorites, Completed on: 2013-10-08 | Attorney General of Canada |
| 2013-10-08 | Notice of appearance, Michael Jackson, Q.C., and Joana Thackeray will be present | British Columbia Civil Liberties Association |
| 2013-10-04 |
Order by, Ka, FURTHER TO THE ORDER dated September 5, 2013, granting leave to intervene to the British Columbia Civil Liberties Association; IT IS HEREBY FURTHER ORDERED THAT the said intervener is granted permission to present oral argument not exceeding ten (10) minutes at the hearing of the appeal. Granted |
|
| 2013-10-02 | Appeal perfected for hearing | |
| 2013-10-01 | Notice of appearance, David Lepofsky and Mabel Lai will be present | Attorney General of Ontario |
| 2013-10-01 | Intervener's factum, (Book Form), Completed on: 2013-10-01 | Attorney General of Ontario |
| 2013-10-01 | Intervener's book of authorities, Completed on: 2013-10-01 | British Columbia Civil Liberties Association |
| 2013-10-01 | Intervener's factum, Completed on: 2013-10-01 | British Columbia Civil Liberties Association |
| 2013-10-01 | Correspondence received from, Ed Van Bemmel re: Amended factum | Christopher John Whaling |
| 2013-09-27 | Notice of appearance, Cheryl D. Mitchell and Ginette Gobeil will be present | Attorney General of Canada |
| 2013-09-27 | Notice of appearance, Eric Purtzki and Garth Barriere will be present | Attorney General of Canada |
| 2013-09-26 | Correspondence received from, 9 reserved seats requested | Attorney General of Canada |
| 2013-09-24 | Respondent's factum, (Book Form), Amended version filed on 2013-09-30, Completed on: 2013-09-30 | Christopher John Whaling |
| 2013-09-24 | Respondent's book of authorities, (Book Form), 2 volumes, Completed on: 2013-09-24 | Christopher John Whaling |
| 2013-09-20 | Respondent's record, (Book Form), Service missing (Rec'd 2013-09-30), Completed on: 2013-10-01 | Christopher John Whaling |
| 2013-09-19 | Supplemental document, (Book Form), Notice of change affecting the Record, Completed on: 2013-09-19 | Attorney General of Canada |
| 2013-09-05 | Order on motion for leave to intervene, (by KARAKATSANIS J.) | |
| 2013-09-05 |
Decision on the motion for leave to intervene, Ka, UPON APPLICATION by the British Columbia Civil Liberties Association for leave to intervene in the above appeal; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motion for leave to intervene of the British Columbia Civil Liberties Association is granted and the said intervener shall be entitled to serve and file a factum not to exceed 10 pages in length on or before October 1, 2013. The request to present oral argument is deferred to a date following receipt and consideration of the written arguments of the parties and the intervener. The intervener is not entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties. Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the intervener shall pay to the appellant and respondents any additional disbursements occasioned to the appellant and respondents by its intervention. Granted |
|
| 2013-09-05 | Submission of motion for leave to intervene, Ka | |
| 2013-08-23 | Response to the motion for leave to intervene, (Letter Form), from Cheryl D. Mitchell, dated Aug. 23/13, Completed on: 2013-08-23 | Attorney General of Canada |
| 2013-08-22 | Notice of hearing sent to parties | |
| 2013-08-21 | Response to the motion for leave to intervene, from Ed Van Bemmel by e-mail, dated Aug. 21/13, Completed on: 2013-08-21 | Christopher John Whaling |
| 2013-08-21 |
Appeal hearing scheduled, 2013-10-15 Judgment reserved |
|
| 2013-08-20 | Motion for leave to intervene, (Book Form), Completed on: 2013-08-20 | British Columbia Civil Liberties Association |
| 2013-08-01 | Appellant's book of authorities, (5 volumes), Completed on: 2013-08-01 | Attorney General of Canada |
| 2013-08-01 | Appellant's record, (8 volumes), Completed on: 2013-08-01 | Attorney General of Canada |
| 2013-08-01 | Appellant's factum, Completed on: 2013-08-01 | Attorney General of Canada |
| 2013-06-27 | Notice of intervention respecting a constitutional question | Attorney General of Ontario |
| 2013-06-07 | Notice of constitutional question(s), (served June 7/13) | Attorney General of Canada |
| 2013-06-04 | Order on motion to state a constitutional question, (by ABELLA J.) | |
| 2013-06-04 |
Decision on the motion to state a constitutional question, Abe, UPON APPLICATION by the appellant for an order stating constitutional questions in the above appeal; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT THE CONSTITUTIONAL QUESTIONS BE STATED AS FOLLOW: 1. Does s. 10(1) of the Abolition of Early Parole Act, S.C. 2011, c. 11, to the extent that it applies to offenders sentenced before the Abolition of Early Parole Act came into force on March 28, 2011, infringe s. 11(h) of the Canadian Charter of Rights and Freedoms? 2. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? 3. Does s. 10(1) of the Abolition of Early Parole Act, S.C. 2011, c. 11, to the extent that it applies to offenders sentenced before the Abolition of Early Parole Act came into force on March 28, 2011, infringe s. 7 of the Canadian Charter of Rights and Freedoms? 4. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? IT IS HEREBY FURTHER ORDERED THAT: 1. The notice of constitutional question shall be served and filed on or before June 10, 2013; 2. Any notices of intervention shall be served and filed on or before July 2, 2013; 3. The appellant’s record, factum and book of authorities shall be served and filed on or before August 2, 2013; 4. Any person interested in applying for leave to intervene shall serve and file their motion on or before August 21, 2013; 5. The responses to any motion for leave to intervene shall be served and filed on or before August 27, 2013; 6. The replies on any motion for leave to intervene shall be served and filed on or before August 30, 2013; 7. The respondents’ records, factums and books of authorities shall be served and filed on or before September 27, 2013; 8. Any interveners under Rule 55 and any attorneys general intervening on constitutional questions shall each serve and file their factum and book of authorities on or before October 1, 2013; 9. This appeal shall be heard on October 15, 2013. Granted |
|
| 2013-06-04 | Submission of motion to state a constitutional question, Abe | |
| 2013-05-22 | Response to the motion to state a constitutional question, email from Gowlings dated May 22/13, Completed on: 2013-05-22 | Christopher John Whaling |
| 2013-05-13 | Motion to state a constitutional question, (Book Form), Completed on: 2013-05-13 | Attorney General of Canada |
| 2013-05-13 | Notice of appeal, Completed on: 2013-05-13 | Attorney General of Canada |
| 2013-04-16 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted) | |
| 2013-04-12 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2013-04-12 | Judgment on leave sent to the parties | |
| 2013-04-11 |
Judgment of the Court on the application for leave to appeal, The motion to expedite the application for leave to appeal is granted. The motion to expedite the hearing of the appeal is granted. The motion for a stay of lower court judgments is dismissed. The application for leave to appeal from the judgment of the Court of Appeal for British Columbia (Vancouver), Numbers CA040061, CA040063 and CA040059, 2012 BCCA 435, dated November 2, 2012, is granted without costs. Granted, without costs |
|
| 2013-04-11 |
Decision on the motion for a stay of execution, see judgment on leave application Dismissed |
|
| 2013-02-18 | All materials on application for leave submitted to the Judges, F Ro Mo | |
| 2013-02-18 | Submission of motion for a stay of execution, F Ro Mo | |
| 2013-02-07 | Applicant's reply to respondent's argument, Completed on: 2013-02-07 | Attorney General of Canada |
| 2013-02-07 | Reply to motion for a stay of execution, (Book Form), Completed on: 2013-02-07 | Attorney General of Canada |
| 2013-01-28 | Respondent's response on the application for leave to appeal, Completed on: 2013-01-30 | Christopher John Whaling |
| 2013-01-23 | Correspondence received from, Cheryl D. Mitchell, Re: Final Court of Appeal Order | Attorney General of Canada |
| 2013-01-22 | Response to the motion for a stay of execution, (Book Form), Completed on: 2013-01-22 | Christopher John Whaling |
| 2013-01-09 | Correspondence received from, Cheryl Mitchell, Re: Order form - final order expected Jan.25/13 | Attorney General of Canada |
| 2012-12-17 | Letter acknowledging receipt of a complete application for leave to appeal but without formal Court of Appeal order | |
| 2012-12-14 | Correspondence received from, Cheryl D. Mitchell, dated Dec.14/12, by fax, Re: permits that response to the motion be joint with response of application within 30 days. | Attorney General of Canada |
| 2012-12-13 | Motion for a stay of execution, (2 volumes) includes Motion to expedite, Completed on: 2012-12-13 | Attorney General of Canada |
| 2012-12-13 | Application for leave to appeal, (2 volumes), Completed on: 2012-12-17 | Attorney General of Canada |
| 2012-10-12 | Order issued on motion for a stay of execution, (BY MOLDAVER, J.) | |
| 2012-10-12 |
Decision on the motion for a stay of execution, UPON APPLICATION by the Applicant, the Attorney General of Canada, for: (a) An interim, interim order staying the judgment of the Supreme Court of British Columbia in these matters, to last until the Respondents file responding materials and the motion for an interim stay is finally disposed of; (b) An interim order staying the judgment of the Supreme Court of British Columbia in these matters, to last until this motion for a stay is finally disposed of; (c) An order staying the judgment of the Supreme Court of British Columbia in these matters, to last until the Applicant’s application for leave to appeal is dismissed or, if granted, until the Applicant’s appeal is determined; (d) An order permitting the parties to file consolidated materials in this application for leave to appeal; (e) An order permitting the Applicant to file a notice of application for leave to appeal and to file at a later date a perfected application for leave to appeal; (f) An order that no costs be awarded on this motion; AND HAVING READ THE MATERIAL FILED AND THE APPLICANT HAVING FILED A NOTICE OF APPLICATION FOR LEAVE TO APPEAL; IT IS HEREBY ORDERED THAT: 1) The motion for an interim interim stay is dismissed without costs. 2) The motion for an interim stay is dismissed without costs. 3) The motion for an order permitting the Applicant to file a notice of application for leave to appeal and a perfected application for leave to appeal is struck without costs and without prejudice to the Applicant to perfect the Application for Leave to Appeal. 4) The motion permitting the parties to file consolidated materials in these applications for leave to appeal is granted. 5) The remainder is referred to the judges to whom the application for leave to appeal is submitted. Allowed in part, no order as to costs |
|
| 2012-10-12 | Submission of motion for a stay of execution, Mo | |
| 2012-10-11 | Correspondence received from, Gowlings, by email, Re: will not file anything further | Christopher John Whaling |
| 2012-10-11 | Supplemental document, Affidavit of Kelsey Hymander | Attorney General of Canada |
| 2012-10-09 | Notice of application for leave to appeal, Completed on: 2012-10-09 | Attorney General of Canada |
| 2012-10-09 | Correspondence received from, (Letter Form), Cheryl D. Mitchell, dated Oct.9/12 Re: brief to the motion for stay | Attorney General of Canada |
| 2012-10-09 | Response to the motion for a stay of execution, (Letter Form), Completed on: 2012-10-09 | Christopher John Whaling |
| 2012-10-09 | Motion for a stay of execution, Completed on: 2012-10-09 | Attorney General of Canada |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Attorney General of Canada | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Whaling, Christopher John | Respondent | Active |
And Between
| Name | Role | Status |
|---|---|---|
| Attorney General of Canada | Applicant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Slobbe, Judith Lynn | Respondent | Active |
And Between
| Name | Role | Status |
|---|---|---|
| Attorney General of Canada | Applicant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Maidana, Cesar | Respondent | Active |
Other parties
| Name | Role | Status |
|---|---|---|
| Attorney General of Ontario | Intervener | Active |
| British Columbia Civil Liberties Association | Intervener | Active |
Counsel
Party: Attorney General of Canada
Counsel
Ginette Gobeil
Jennifer Dagsvik
900 - 840 Howe Street
Vancouver, British Columbia
V6Z 2S9
Telephone: (604) 666-1215
FAX: (604) 666-2639
Email: cheryl.mitchell@justice.gc.ca
Agent
50 O'Connor Street, Suite 500, Room 557
Ottawa, Ontario
K1A 0H8
Telephone: (613) 670-6290
FAX: (613) 954-1920
Email: christopher.rupar@justice.gc.ca
Party: Whaling, Christopher John
Counsel
Vancouver, British Columbia
V6C 2G8
Telephone: (604) 684-1311
FAX: (604) 681-9797
Agent
2600 - 160 Elgin St
P.O. Box 466, Stn "D"
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 788-3433
Email: henry.brown@gowlings.com
Party: Slobbe, Judith Lynn
Counsel
Vancouver, British Columbia
V6C 2G8
Telephone: (604) 684-1311
FAX: (604) 681-9797
Agent
2600 - 160 Elgin St
P.O. Box 466, Stn "D"
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 788-3433
Email: henry.brown@gowlings.com
Party: Maidana, Cesar
Counsel
Vancouver, British Columbia
V6C 2G8
Telephone: (604) 684-1311
FAX: (604) 681-9797
Agent
2600 - 160 Elgin St
P.O. Box 466, Stn "D"
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 788-3433
Email: henry.brown@gowlings.com
Party: Attorney General of Ontario
Counsel
720 Bay St
10th Floor
Toronto, Ontario
M7A 2S9
Telephone: (416) 326-4458
FAX: (416) 326-4656
Email: dlepofsky@sympatico.ca
Agent
441 MacLaren Street
Suite 200
Ottawa, Ontario
K2P 2H3
Telephone: (613) 236-9665
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com
Party: British Columbia Civil Liberties Association
Counsel
Megan Vis-Dunbar
Joana Thackeray
Faculty of Law
1822 East Mall
Vancouver, British Columbia
V6T 1Z1
Telephone: (604) 822-4565
FAX: (604) 822-8108
Email: jackson@law.ubc.ca
Agent
130 Albert Street
Suite 1103
Ottawa, Ontario
K1P 5G4
Telephone: (613) 702-5560
FAX: (888) 404-2227
Summary
Keywords
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Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Charter of Rights - Double jeopardy - Repeal of statutory provisions providing early parole applied to inmates already sentenced and incarcerated - Whether s. 10(1) of the Abolition of Early Parole Act, S.C. 2011, c. 11, to the extent that it applies to offenders sentenced before the Abolition of Early Parole Act came into force on March 28, 2011, infringes s. 11(h) of the Canadian Charter of Rights and Freedoms - If so, whether the infringement is a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms - Whether s. 10(1) of the Abolition of Early Parole Act, S.C. 2011, c. 11, to the extent that it applies to offenders sentenced before the Abolition of Early Parole Act came into force on March 28, 2011, infringes s. 7 of the Canadian Charter of Rights and Freedoms - If so, whether the infringement is a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms.
When the respondents began serving sentences in federal penitentiaries, the accelerated parole release provisions of the Corrections and Conditional Release Act, S.C. 1992, c. 20, entitled them to early parole after serving one sixth of their sentences, without hearings before the Parole Board. Those provisions were repealed by the Abolition of Early Parole Act, S.C. 2011, c. 11, after each respondent had been sentenced. Section 10(1) of that Act applies the Act to inmates not released on parole as of March 28, 2011. The respondents brought constitutional challenges. The trial judge and the Court of Appeal held that the transitional provision breaches the right guaranteed by s. 11(h) of the Charter not to be punished again for an offence.
Lower court rulings
Supreme Court of British Columbia
S112998, S113784, S113785
Section 10(1) of the Abolition of Early Parole Act, S.C. 2011, c. 11, found to be a breach of s. 11(h) of the Charter and offending words severed from s. 10(1)
Court of Appeal for British Columbia (Vancouver)
2012 BCCA 435, CA040061, CA040063, CA040059
Appeal dismissed
Memorandums of argument on application for leave to appeal
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Factums on appeal
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