When legislatures change administrative procedures, what happens to those people already in the queue? A recent Federal Court decision has addressed this issue in the context of changes to the Corrections and Conditional Release Act that eliminated accelerated parole review for eligible offenders.
Edward Pearce’s application for review by the Parole Board was with the Board prior to the coming into force of the changes to the Act. The Correctional Service of Canada had recommended consideration for early parole. The Parole Board panel determined that it no longer had jurisdiction to consider the request for accelerated parole once the legislative changes were in force. Mr. Pearce filed a judicial review application.
The transitional provisions in the legislation did not directly address Mr. Pearce’s situation of a complete and filed application. However, the Interpretation Act does provide:
43. Where an enactment is repealed in whole or in part, the repeal does not
…
(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed,
…
(e) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation or liability referred to in paragraph (c) …
and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced …
The court concluded:
[49] Professor Sullivan notes that there is a strong presumption against the interference of repeals with vested rights or privileges. This presumption can only be rebutted by clear statutory language. When a statute is subject to multiple possible interpretations, the interpretation preserving the accruing right must be preferred. (See Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed (Markham (ON): LexisNexis, 2008) at p.711-712 and 719-721).
[50] Sections 5 and 10 of the AEPA read together indicate that the early parole provisions are abolished; the amended CCRA applies to everyone; and the directions made before the repeal remain valid. The AEPA does not directly address the situation of Mr. Pearce. Following the reasoning of the Supreme Court in Dikranian, above, and s.43 of the Interpretation Act, the AEPA must be interpreted, considering the absence of clear statutory language regarding accruing rights or privileges, as preserving the accrued right or privilege of Mr. Pearce in order to avoid unfairness.
[51] I believe it is important to note that my conclusion does not give the applicant the right to obtain parole, but rather requires that his case be reviewed under the repealed provisions.
Offenders who were eligible for early parole before the entry into force of the AEPA but for whom CSC did not submit all the required documents to the Board could not avail themselves of the above mentioned privilege or right.
NOTE: The British Columbia Supreme Court has recently found the retrospective application of the changes to parole for individuals already convicted to be contrary to section 11 of the Charter (the prohibition against being punished twice for the same offence).
Whaling v. Canada (Attorney General), 2012 BCSC 944 (CanLII), retrieved on 2012-08-18