Canada (Attorney General) v Whaling

2014 SCC 20

The claimants in this case were first-time, non-violent offenders serving federal penitentiary sentences and were thus eligible for accelerated parole review (“APR”) under the regime in place at the time of sentencing. The later coming into force and retrospective application of the Abolition of Early Parole Act (“AEPA”) removed the APR process, resulting in an increased length of time before parole eligibility of the claimants. They challenged the constitutionality of s.10(1) of the AEPA, which provided for retrospective application of the Act to offenders already serving sentences, claiming that it violated their s.11(h) Charter right not to be “punished…again” for an offence. The central question was whether the change in terms making parole requirements more onerous was a form of punishment, or simply a matter of sentence administration.

In a unanimous decision, the Supreme Court found that the AEPA did infringe s.11(h) of the Charter, as being punished again did not require being punished again as the result of a new process. They found that any retrospective changes to a sanction which resulted in the sentence lasting longer than it would originally have done came under the scope of s.11(h). In finding that the infringement was not saved by s.1, the Court found that while the objectives of effective and uniform parole administration were pressing and substantial, and the AEPA was a rationally connected means to do so, the Crown had failed to show how a prospective application of the repeal of APR would have undermined that objective. As a result the retrospective application was not minimally impairing.

SCC Reasons for Judgment

Faculty of Law Research and Commentary on Canada (Attorney General) v. Whaling

Hamish Stewart, “Punitive in effect: reflections on Canada v Whaling,” (2015) 71 SCLR (2d) 263.


Date Document
2013/07/24   Appellant – Attorney General of Canada
2013/09/23 Respondents – Whaling et al.
2013/09/30 Intervener – British Columbia Civil Liberties Association
2013/09/30 Intervener – Attorney General of Ontario