Supreme Court Judgments

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r. v. gamble, [1988] 2 S.C.R. 595

 

Janise Marie Gamble  Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

and

 

The Attorney General for Alberta and the Attorney General for Ontario                                                                                                                                                                                                                                                                                                                                              Interveners

 

indexed as: r. v. gamble

 

File No.: 20433.

 

1988: June 17; 1988: December 8.

 


Present: Dickson C.J. and Beetz, Lamer, Wilson and L'Heureux‑Dubé JJ.

 

on appeal from the court of appeal for ontario

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Interpretation ‑‑ Retrospectivity ‑‑ Accused convicted and sentenced before the proclamation of the Charter  under the wrong provisions of the Criminal Code  ‑‑ Accused sentenced to life imprisonment without eligibility for parole for 25 years ‑‑ Period of parole ineligibility between 10 to 20 years, rather than 25, if proper law applied ‑‑ Application for Charter  relief after 10 years of imprisonment ‑‑ Accused alleging that current operation of the parole ineligibility provision in the sentence violates s. 7  of the Charter  ‑‑ Whether accused's claim involves a retrospective application of the Charter  ‑‑ Criminal Law Amendment Act (No. 2), 1976, S.C. 1974‑75‑76, c. 105, ss. 4, 5, 21, 27.

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Liberty of the person ‑‑ Fundamental justice ‑‑ Accused convicted and sentenced under the wrong provisions of the Criminal Code  ‑‑ Accused sentenced to life imprisonment without eligibility for parole for 25 years ‑‑ Period of parole ineligibility between 10 to 20 years, rather than 25, if proper law applied ‑‑ Whether current operation of the parole ineligibility provision in the sentence violates s. 7  of the Charter .

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Remedy ‑‑ Declaratory relief ‑‑ Accused seeking relief under s. 24(1)  of the Charter  from the current operation of the parole ineligibility provision in her sentence ‑‑ Whether accused entitled to a declaration of eligibility for parole.

 

                   Prerogative writs ‑‑ Habeas corpus ‑‑ Jurisdiction ‑‑ Superior courts ‑‑ Accused convicted and sentenced in Alberta but imprisoned in Ontario ‑‑ Application for habeas corpus and for Charter  relief under s. 24(1)  of the Charter  ‑‑ Whether Supreme Court of Ontario has jurisdiction to issue habeas corpus.

 

                   Prerogative writs ‑‑ Habeas corpus ‑‑ Availability ‑‑ Parole ‑‑ Whether habeas corpus appropriate to review the legality of the deprivation of liberty of the accused inherent in the operation of the parole ineligibility provision in her sentence.

 

                   In March 1976, appellant's accomplice killed a police officer while they were in flight from a robbery. Nine months later, appellant was convicted of first degree murder under s. 214  of the Criminal Code  and was sentenced to life imprisonment without eligibility for parole for 25 years pursuant to s. 669(a) of the Code. Both sections were proclaimed in force on July 26, 1976 as part of a new criminal law (Criminal Law Amendment Act (No. 2), 1976, S.C. 1974‑75‑76, c. 105). On appeal, the Appellate Division of the Supreme Court of Alberta found that she should have been tried under the old provisions of the Criminal Code  in force at the time of the offence. After comparing the old and new provisions, the Court concluded that appellant had been prejudiced by her trial under the new provisions but held that it was prevented from granting the remedy of a new trial under the old law because of the transitional provisions of s. 27(2) of the Criminal Law Amendment Act (No. 2), 1976. The effect of these provisions was that the new trial and the punishment imposed in the event of conviction would be the same as if the offence had been committed after the coming into force of the amendment Act. The law applicable to the new trial would accordingly be the same as that applied at the previous trial. Appellant's application for leave to appeal to the Supreme Court of Canada was dismissed.

 

                   If the appellant had been found guilty of murder punishable by life imprisonment, as opposed to murder punishable by death, under the law in force before July 26, 1976, she would have been ineligible for parole for not more than 20 years but also for not less than 10. In 1986, after 10 years of imprisonment in a penitentiary in Kingston, appellant made an application to the Supreme Court of Ontario for relief by means of a writ of habeas corpus ad subjiciendum with a writ of certiorari in aid and under s. 24(1)  of the Canadian Charter of Rights and Freedoms . Appellant alleged that her continued detention pursuant to the 25‑year parole ineligibility condition in her sentence violated s. 7  of the Charter  and that she was entitled, under s. 24(1)  of the Charter , to a declaration that she is now eligible for parole. The Supreme Court of Ontario dismissed the application and the judgment was affirmed by the Court of Appeal.

 

                   Held (Dickson C.J. and Beetz J. dissenting): The appeal should be allowed.

 

                   Per Lamer, Wilson and L'Heureux‑Dubé JJ.: Appellant's s. 7  claim does not involve a retrospective application of the Charter . Appellant, convicted and sentenced under the wrong law, is not seeking a review of her pre‑Charter  trial and sentence in light of the standards contained in the Charter . Appellant's case is that the current ongoing operation of the parole ineligibility provision in her sentence violates her liberty interest under s. 7  of the Charter  and is therefore unlawful. This unlawfulness is part of the pre‑Charter  history and has, in appellant's submission, largely contributed to her current continuing unconstitutional detention. The relevant act to which the Charter  is applied would not be the conviction or sentencing but the continuing execution of that part of the sentence which mandates a 25‑year period of parole ineligibility. When, as in this case, a person claims a continuing current violation of her liberty interest, it is the duty of the courts to consider her Charter  claim and, in the context of that claim, to consider pre‑Charter  history to the extent it explains or contributes to what is alleged to be a current Charter  violation. This does not involve a retrospective application of the Charter . The decision of this Court in R. v. Milne, [1987] 2 S.C.R. 512, was distinguishable from the present case.

 

                   The Ontario courts had jurisdiction to entertain the appellant's application for habeas corpus and Charter  relief under s. 24(1)  of the Charter . The fact that she was convicted and sentenced in Alberta does not deprive the Superior Court of Ontario of its traditional jurisdiction to issue a writ of habeas corpus ad subjiciendum to those in the province detaining a person in the province for the purpose of reviewing the legality of that detention or confinement. Where a court has jurisdiction over the subject matter and the person, it may, under s. 24(1)  of the Charter , grant such relief as it considers appropriate and just in the circumstances. The superior courts have a discretion to decline to exercise their jurisdiction if the normal trial and appeal process is better suited to vindicate the interests at stake. But this discretion should be exercised with due regard to the constitutionally mandated need to provide prompt and effective enforcement of Charter  rights, especially when an ongoing and continuing violation of a Charter  right is alleged and the superior court is being asked to exercise its traditional function to determine the legality of an ongoing deprivation of liberty.

 

                   The review requested in this case does not exceed the jurisdictional nature of the review contemplated by way of habeas corpus. A conviction and sentence rendered under the wrong provisions of the Criminal Code  clearly constitutes jurisdictional error. The defect is apparent on the face of the warrant of committal and an appreciation of the error does not require a re‑trial on the merits or an evaluation of the evidence presented at trial. In any event, the courts have, in general, not bound themselves to limited categories or definitions of jurisdictional review when the liberty of the subject was at stake. This trend should be affirmed where habeas corpus is sought as a Charter  remedy and distinctions which have become uncertain, technical, artificial and, most importantly, non‑purposive should be rejected. Indeed, a purposive approach should be applied to the administration of Charter  remedies as well as to the interpretation of Charter  rights and, in particular, should be adopted when habeas corpus is the requested remedy. That remedy has traditionally been used and is admirably suited to the protection of the citizen's fundamental right to liberty and the right not to be deprived of it except in accordance with the principles of fundamental justice. Charter  relief should not be denied by overly rigid rules. Here, a purposive and expansive approach to the remedy of habeas corpus leads to the conclusion that the writ is appropriately used to review the legality of the significant deprivation of liberty inherent in the operation of the parole ineligibility provision. This review can take place without either circumventing the appeal process or becoming de facto an appeal on the merits. The role of habeas corpus as a remedy under s. 24(1)  of the Charter  reinforces the policy of flexibly and generously adapting the writ in order that it continue to protect liberty interests now constitutionally protected under the Charter . Finally, to deny the appellant Charter  relief because she received her criminal trial and sentencing under the wrong Criminal Code  provisions in a superior court of criminal jurisdiction and not in an inferior court is completely unacceptable, given the interests that are at stake. Illegalities in a sentence given by a superior court should not escape review by way of habeas corpus where the process of the court itself demonstrates vitiating error.

 

                   The current operation of the condition in appellant's sentence‑‑the 25‑year period of parole ineligibility‑‑infringes her s. 7  residual liberty interest and this infringement was not effected in accordance with the principles of fundamental justice. It is fundamental to any legal system which recognizes "the rule of law" that an accused must be tried and punished under the law in force at the time the offence is committed. This did not happen in this case and a comparison of the relevant legislation indicates that the appellant prima facie was prejudiced by not being tried and punished under the proper law. Appellant is therefore entitled under s. 24(1)  of the Charter  to a declaration of eligibility for parole without having to prove that it was ineluctable that she would only have received a sentence of life imprisonment with eligibility for parole after 10 years. Declaratory relief has been recognized by this Court as an effective and flexible remedy for the settlement of real disputes. Moreover, this Court, having assumed jurisdiction over the subject matter and the person on this appeal from a denial of habeas corpus, can exercise its broad discretion under s. 24(1)  of the Charter  to order any remedy within its jurisdiction which it considers appropriate and just in the circumstances. The Parole Board is, however, the final arbiter of whether and when she should be released on parole.

 

                   Per Dickson C.J. and Beetz J. (dissenting): Appellant's continued incarceration with no parole eligibility for 25 years cannot be challenged under s. 7 without retrospectively applying the Charter  either to s. 27(2) of the Criminal Law Amendment Act (No. 2), 1976, the provision which endorsed the retrospective application of the amended provisions of the Criminal Code  enacted after the commission of the offence, or to the conviction and sentence which s. 27(2)  validated. While section 7 may apply to ongoing states of affairs and while the appellant's ongoing or continuing incarceration subject to extended parole ineligibility constitutes an ongoing deprivation of liberty within the meaning of s. 7 , it has not been demonstrated that there was an ongoing violation of s. 7 . The appellant's argument that there is an ongoing violation of s. 7  is totally dependent on the argument that the original conviction and sentence would not have survived Charter  scrutiny if they had been pronounced when the Charter  was in force. A current Charter  violation cannot be based on past conditional Charter  transgressions. It is only by virtue of asking whether the ongoing deprivation is contrary to a principle of fundamental justice that an ongoing violation of s. 7  may be found. However, the principle of fundamental justice invoked‑‑that an accused person must be tried and punished under the law in force at the time of the offence‑‑in essence requires this Court to evaluate a pre‑Charter  act‑‑the conviction and sentence endorsed by s. 27(2) ‑‑according to Charter  standards. This involves a retrospective application of the Charter  in the same way that an attempt to apply s. 7  directly to a pre‑Charter deprivation would involve retrospectivity.

 

                   Even if initially invalid or improper, appellant's conviction and sentence were statutorily endorsed by the s. 27(2) transitional provision. Section 27(2), in combination with s. 613  of the Criminal Code , validated the wrongful application of the new provisions to the appellant. This validating effect cured the illegality and it therefore ceased to flow forward in time and taint the ongoing post‑Charter deprivation of liberty. Thus, the appellant's extended parole ineligibility cannot be challenged under s. 7  on the basis that there is an ongoing deprivation of liberty which was improper prior to the Charter  and which continues to be improper after the Charter .

 

Cases Cited

 

By Wilson J.

 

                   Distinguished: R. v. Milne, [1987] 2 S.C.R. 512; referred to: R. v. Miller, [1985] 2 S.C.R. 613; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Morin v. National Special Handling Unit Review Committee, [1985] 2 S.C.R. 662; Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Stevens, [1988] 1 S.C.R. 1153; R. v. James (1986), 27 C.C.C. (3d) 1, aff'd [1988] 1 S.C.R. 669; R. v. Antoine (1983), 5 C.C.C. (3d) 97; R. v. Dickson and Corman (1982), 3 C.C.C. (3d) 23; Miller and Cockriell v. The Queen, [1977] 2 S.C.R. 680; R. v. Logan (1986), 51 C.R. (3d) 326; Mitchell v. Attorney General of Ontario (1983), 35 C.R. (3d) 225; R. v. Konechny (1983), 10 C.C.C. (3d) 233; Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; Dubois v. The Queen, [1985] 2 S.C.R. 350; Re McDonald and The Queen (1985), 21 C.C.C. (3d) 330; R. v. Longtin (1983), 5 C.C.C. (3d) 12; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Jack and Charlie v. The Queen, [1985] 2 S.C.R. 332; R. v. Lucas; R. v. Neely (1986), 27 C.C.C. (3d) 229; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Riel (1885), 2 Man. L.R. 302; Ex parte Stather (1886), 25 N.B.R. 374; R. v. Holmes, [1932] 3 W.W.R. 76; Laflamme v. Renaud (1945), 84 C.C.C. 153; R. v. Rahey, [1987] 1 S.C.R. 588; Sanders v. The Queen, [1970] S.C.R. 109; Antares Shipping Corp. v. The Ship "Capricorn", [1977] 2 S.C.R. 422; Re Krakowski and The Queen (1983), 4 C.C.C. (3d) 188; Re Anson and The Queen (1983), 4 C.C.C. (3d) 119; Argentina v. Mellino, [1987] 1 S.C.R. 536; Re Trepanier (1885), 12 S.C.R. 111; Re Sproule (1886), 12 S.C.R. 140; Goldhar (No. 2) v. The Queen, [1960] S.C.R. 431; Morrison v. The Queen, [1966] S.C.R. 356; Karchesky v. The Queen, [1967] S.C.R. 547; Korponay v. Kulik, [1980] 2 S.C.R. 265; Wilson v. The Queen, [1983] 2 S.C.R. 594; Ex parte Risby (1975), 24 C.C.C. (2d) 211; Re Arrigo and The Queen (1986), 29 C.C.C. (3d) 77; Re Cadeddu and The Queen (1982), 4 C.C.C. (3d) 97; Swan v. Attorney General of British Columbia (1983), 35 C.R. (3d) 135; Lussa v. Health Science Centre (1983), 9 C.R.R. 350; MacAllister v. Director of Centre de Reception (1984), 40 C.R. (3d) 121; Re Marshall and The Queen (1984), 13 C.C.C. (3d) 73; Re Jenkins (1984), 8 C.R.R. 142; Jollimore v. Attorney‑General of Nova Scotia (1986), 24 C.R.R. 28; Balian v. Regional Transfer Board (1988), 62 C.R. (3d) 258; Re Hass and The Queen (1978), 40 C.C.C. (2d) 202; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Masella v. Langlais, [1955] S.C.R. 263; Preiser v. Rodriguez, 411 U.S. 475 (1973); Solosky v. The Queen, [1980] 1 S.C.R. 821; Jones v. Cunningham, 371 U.S. 236 (1962); R. v. Wigman, [1987] 1 S.C.R. 246; R. v. Gamble and Nichols (1978), 40 C.C.C. (2d) 415.

 

By Dickson C.J. (dissenting)

 

                   R. v. Milne, [1987] 2 S.C.R. 512; R. v. Stevens, [1988] 1 S.C.R. 1153; R. v. James (1986), 27 C.C.C. (3d) 1, aff'd [1988] 1 S.C.R. 669; Mitchell v. Attorney General of Ontario (1983), 35 C.R. (3d) 225; R. v. Konechny (1983), 10 C.C.C. (3d) 233; R. v. Gamble and Nichols (1978), 40 C.C.C. (2d) 415.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a), 7 , 9 , 11 (b), (i), 12 , 15 , 24(1) .

Criminal Code, R.S.C. 1970, c. C‑34, ss. 21, 214 [am. R.S.C. 1970, c. C‑35, s. 4(1)(a); rep. & subs. 1973‑74, c. 38, ss. 2, 10, 11; rep. & subs. 1974‑75‑76, c. 105, s. 4], 218 [am. 1973‑74, c. 38, s. 3; rep. & subs. 1974‑75‑76, c. 105, ss. 5, 28], 669 [rep. & subs. 1974‑75‑76, c. 105, s. 21], 603(1)(b), 613 [am. 1974‑75‑76, c. 93, s. 75], 710.

Criminal Law Amendment (Capital Punishment) Act, S.C. 1973‑74, c. 38, ss. 2, 3.

Criminal Law Amendment Act (No. 2), 1976, S.C. 1974‑75‑76, c. 105, ss. 4, 5, 21, 27, 28.

 

Authors Cited

 

Black, William. "Charter of Rights ‑‑Application to Pre‑Enactment Events", (1982) U.B.C. L. Rev. (Charter Ed.) 59.

Canada. Canadian Sentencing Commission. Sentencing Reform: A Canadian Approach. Ottawa: The Commission, 1987.

Harvey, D. A. Cameron. The Law of Habeas Corpus in Canada. Toronto: Butterworths, 1974.

Létourneau, Gilles. The Prerogative Writs in Canadian Criminal Law and Procedure. Toronto: Butterworths, 1976.

Sharpe, Robert J. The Law of Habeas Corpus. Oxford: Clarendon Press, 1976.

 

                   APPEAL from a judgment of the Ontario Court of Appeal (1987), 3 W.C.B. (2d) 88, affirming a judgment of Watt J. (1986), 17 W.C.B. 188, dismissing appellant's application for habeas corpus with certiorari in aid. Appeal allowed, Dickson C.J. and Beetz J. dissenting.

 

                   Colin K. Irving, Allan Manson and Franklin S. Gertler, for the appellant.

                   Ivan Whitehall, Q.C., and Ron Fainstein, Q.C., for the respondent.

 

                   Manfred DeLong, for the intervener the Attorney General for Alberta.

 

                   Jeff Casey, for the intervener the Attorney General for Ontario.

 

                   The reasons of Dickson C.J. and Beetz J. were delivered by

 

1.                       The Chief Justice (dissenting)‑‑I have read the reasons of Justice Wilson, but, with considerable regret, have concluded that I cannot concur. Wilson J. takes the view that the appellant, Ms. Gamble, is suffering a continuing deprivation of liberty in the form of extended parole ineligibility which is contrary to the principle of fundamental justice that an accused person must be tried and punished under the law in force at the time an offence is committed. Consequently, Wilson J. finds that the appellant is suffering an ongoing violation of her rights under s. 7  of the Canadian Charter of Rights and Freedoms  which is not saved by s. 1  of the Charter . I respectfully disagree with this conclusion as, in my view, the application of s. 7  on the facts of this case involves a retrospective application of the Charter .

 

2.                       I am grateful to Wilson J. for her discussion of the facts and résumé of the lower court judgments and I adopt such discussion and résumé.

 

                           I

 

Statutory Provisions

 

3.                       For ease of reference, I shall reproduce the pertinent statutory provisions which also appear in the reasons of Wilson J. and briefly place them in context. At the time the appellant committed the offence (March 12, 1976) for which she is now incarcerated, s. 214  (the old s. 214 ) and s. 218 (the old s. 218) of the Criminal Code, R.S.C. 1970, c. C‑34 (as amended by S.C. 1973‑74, c. 38, ss. 2 and 3) were in force:

 

        214. (1) Murder is punishable by death or is punishable by imprisonment for life.

 

        (2) Murder is punishable by death, in respect of any person, where such person by his own act caused or assisted in causing the death of

 

(a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff's officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties, or

 

(b) a warden, deputy warden, instructor, keeper, gaoler, guard or other officer or permanent employee of a prison, acting in the course of his duties,

 

or counselled or procured another person to do any act causing or assisting in causing the death.

 

        (3) All murder other than murder punishable by death is punishable by imprisonment for life.

 

        218. (1) Every one who commits murder punishable by death is guilty of an indictable offence and shall be sentenced to death.

 

        (2) Every one who commits murder punishable by imprisonment for life is guilty of an indictable offence and shall be sentenced to imprisonment for life.

 

                          ...

 

        (5) Notwithstanding anything in the Parole Act and unless the Parliament of Canada otherwise directs, no person

 

(a) upon whom a sentence of imprisonment for life in respect of murder has been imposed after the coming into force of this subsection,

 

                          ...

 

(c) in respect of whom a sentence of death in respect of murder has been commuted after the coming into force of this section to imprisonment for life,

 

shall be released pursuant to the terms of a grant of parole under the Parole Act unless

 

(d) at least ten years of that sentence calculated in the manner described in subsection (7) have been served, and

 

(e) the National Parole Board, by a vote of at least two‑thirds of its members, has made a decision that parole under that Act be granted to that person.

 

        (6) Notwithstanding paragraph (5)(d), the judge presiding at the trial of an accused who is or was convicted of murder or, where such judge is unable to do so, another judge of the same court may

 

(a) at the time of sentencing of the accused, in a case referred to in paragraph (5)(a), or

 

(b) at any time on application made to him within a reasonable time after

 

(i) the coming into force of this section, in a case referred to in paragraph (5)(b), or

 

(ii) the execution of an instrument or writing mentioned in subsection 684(2) declaring that a sentence of death has been commuted, in a case referred to in paragraph (5)(c),

 

having regard to the character of the accused, the nature of the offence and the circumstances surrounding its commission, and to any recommendation made pursuant to subsection (8), by order substitute for the number of years specified in paragraph (5)(d) a number of years that is not more than twenty but more than ten.

 

Instead of being prosecuted and sentenced under these provisions, the appellant was indicted and convicted under an amended s. 214  of the Criminal Code  (the new s. 214 ) which was proclaimed in force on July 26, 1976, Criminal Law Amendment Act (No. 2), 1976, S.C. 1974‑75‑76, c. 105:

 

        214. (1) Murder is first degree murder or second degree murder.

 

        (2) Murder is first degree murder when it is planned and deliberate.

 

                          ...

 

        (4) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the victim is

 

(a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff's officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties;

 

(b) a warden, deputy warden, instructor, keeper, gaoler, guard or other officer or permanent employee of a prison, acting in the course of his duties; or

 

(c) a person working in a prison with the permission of prison authorities and acting in the course of his work therein.

 

The appellant was sentenced under the new ss. 218  and 669  of the Criminal Code  which were enacted and proclaimed into force as part of the same 1976 amendments:

 

        218. (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.

 

        669. The sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be,

 

(a) in respect of a person who has been convicted of high treason or first degree murder, that he be sentenced to imprisonment for life without eligibility for parole until he has served twenty‑five years of his sentence;

 

(b) in respect of a person who has been convicted of second degree murder, that he be sentenced to imprisonment for life without eligibility for parole until he has served at least ten years of his sentence or such greater number of years, not being more than twenty‑five years, as has been substituted therefor pursuant to section 671;

 

As the appellant was convicted of first degree murder under the new s. 214 , she was sentenced to life imprisonment under the new s. 669 (a) with no eligibility for parole for 25 years. If the appellant had been found guilty of murder punishable by life imprisonment, as opposed to murder punishable by death, under the old s. 214 , she would have been ineligible for parole for not more than 20 but also not less than 10 years pursuant to the old s. 218 . It is this difference in parole ineligibility which forms the basis for the appellant's s. 7 claim.

 

4.                       On appeal of her conviction to the Alberta Court of Appeal, that Court found that the appellant had been tried under the wrong law: R. v. Gamble and Nichols (1978), 40 C.C.C. (2d) 415. The old, not new, Criminal Code  provisions should have been applied as the new provisions were not in force at the time of the offence. The Alberta Court of Appeal would have directed a new trial if it had not been for the transitional s. 27(2) of the Criminal Law Amendment Act (No. 2), 1976:

 

        27. (1) ...

 

        (2)  Where proceedings in respect of any offence of treason, piracy or murder, whether punishable by death or not, were commenced before the coming into force of this Act, and a new trial of a person for the offence has been ordered and the new trial is commenced after the coming into force of this Act, the new trial shall be commenced by the preferring of a new indictment before the court before which the accused is to be tried, and thereafter the offence shall be dealt with, inquired into, tried and determined, and any punishment in respect of the offence shall be imposed as if it had been committed after the coming into force of this Act.

 

Because this draconian provision would have resulted in the new s. 214  being applied once again if a new trial were ordered, the Court felt it had no recourse but to find that no substantial wrong or miscarriage of justice had occurred.

 

5.                       The appellant applied for leave to appeal to this Court but her application was dismissed on October 3, 1978, [1978] 2 S.C.R. vii.

 

                           II

 

The Issue

 

6.                       In my view, the central issue is whether the appellant's continued incarceration with no parole eligibility for 25 years may be challenged under s. 7 without retrospectively applying the Charter  either to s. 27(2) , the provision which endorsed the retrospective application of the amended provisions of the Criminal Code  enacted after the commission of the offence, or to the conviction and sentence which s. 27(2)  validated. This Court, in  R. v. Milne, [1987] 2 S.C.R. 512, at pp. 527‑28, left open the possibility that the execution or the carrying out of a sentence (which may also be referred to in this context as the punishment) can be reviewed under the Charter  without applying the Charter  to the original pronouncement of the sentence. The appellant's s. 7  claim in this case is that the present application of the extended parole ineligibility aspects of her original sentence constitutes an ongoing or continuing deprivation of liberty contrary to principles of fundamental justice.

 

                          III

 

Retrospectivity

 

7.                       I agree with Wilson J. that in order to determine whether the Charter  is applicable law, a court must ask whether the Charter  is in force at the time at which the act or event which is alleged to infringe the Charter  took place or had its effect. As this Court recently stated in R. v. Stevens, [1988] 1 S.C.R. 1153, at p. 1158, the following formulations of Tarnopolsky J.A. in R. v. James (1986), 27 C.C.C. (3d) 1, at pp. 21 and 25, aff'd [1988] 1 S.C.R. 669, are correct:

 

[O]ne applies the law in force at the time when the act that is alleged to be in contravention of a Charter  right or freedom occurs ...[I]t is important that actions be determined by the law, including the Constitution, in effect at the time of the action.

 

8.                       However, this general statement does not yield a ready answer in every case as one still has to fix in time the relevant act. As demonstrated by the different conclusions of the majority and minority in Stevens, supra, this is not necessarily a straightforward task. In Stevens, the central disagreement was this: do the words "whether or not he believes that she is fourteen years of age or more" in s. 146(1)  of the Criminal Code  take effect for the purposes of s. 7  analysis at the time the alleged offence was committed or at the time of the trial? Section 146(1)  prohibits a male from having sexual intercourse with a female person under 14 years of age who was not also the male's wife.

 

9.                       Wilson J. (Lamer and L'Heureux‑Dubé JJ. concurring), for the minority, took the view that the relevant act was the denial of a mistake of fact defence at the time of the trial which had taken place after the Charter  had entered into force. It followed, in Wilson J.'s view, that the post‑Charter  trial for a pre‑Charter  commission of the s. 146(1)  offence violated s. 7  of the Charter  as it was contrary to principles of fundamental justice to convict and imprison someone, thereby depriving them of liberty, without proof of mens rea but instead on the basis of proof of the actus reus alone.

 

10.                     The majority of this Court disagreed. Le Dain J. (Dickson C.J. and Beetz, McIntyre, and La Forest JJ. concurring) held that the impugned section of s. 146(1)  constituted one of the mental elements of the offence, and therefore took effect at the time of the commission of the offence. Because the offence took place prior to the Charter , the Charter  could not be used to challenge the fact that the above‑quoted words denied the accused the possibility of a mistake of fact defence. Le Dain J. concluded with the following statement at p. 1159:

 

The liability imposed by law would ordinarily be established at trial in a particular case in accordance with the relevant substantive law, including any applicable constitutional provisions, as it existed at the time the offence was committed. It would give a retrospective application to s. 7  of the Charter  to apply it to s. 146(1) of the Code merely because the liability imposed by s. 146(1)  continued after the Charter  came into force. It would be to change the applicable substantive law with retrospective effect.

 

11.                     The question in this appeal is whether the appellant's s. 7  claim similarly amounts to a retrospective application of the Charter . For ease of reference, I reproduce s. 7  below:

 

        7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

In identifying the relevant act, Wilson J. in the case at bar focusses on the present deprivation of the appellant's liberty. I agree with her that s. 7  may apply to ongoing states of affairs and that the appellant's ongoing or continuing incarceration subject to extended parole ineligibility constitutes an ongoing deprivation of liberty within the meaning of s. 7 . However, it is necessary to show more than an ongoing deprivation of liberty; it must also be shown that there is an ongoing violation of s. 7 .

 

12.                     The appellant's argument that there is an ongoing violation of s. 7  (or, put another way, that the ongoing deprivation is fundamentally unjust) is totally dependent on the argument that the original conviction and sentence would not have survived Charter  scrutiny if they had been pronounced when the Charter  was in force. A current Charter  violation cannot be based on past conditional Charter  transgressions. It is only by virtue of asking whether the ongoing deprivation is contrary to a principle of fundamental justice that an ongoing violation of s. 7  may be found. However, the principle of fundamental justice invoked by Wilson J. (that an accused person must be tried and punished under the law in force at the time an offence is committed) in essence requires this Court to evaluate a pre‑Charter  act (here, the conviction and sentence endorsed by s. 27(2) ) according to Charter  standards. In my view, this involves a retrospective application of the Charter  in the same way that an attempt to apply s. 7  directly to a pre‑Charter deprivation would involve retrospectivity.

 

13.                     It is clear that Stevens does not directly govern the present case given the focus in Stevens on a statutory provision not at issue here and, more importantly, given the fact that Ms. Gamble's liability to imprisonment was not determined by the relevant substantive laws at the time of the offence. Wilson J. has placed considerable emphasis on this aspect of the s. 7  claim in order to point out that it cannot be said that the appellant is attempting to challenge the applicable substantive law at the time at which she committed the offence. Reliance is placed on the following statement by La Forest J. for the majority in Milne, supra, at p. 526:

 

[L]ike any other person who is properly convicted and sentenced, he must otherwise serve his sentence according to its tenor.

 

Wilson J. contends that, since the wrong substantive law was applied to the appellant, she was not "properly" convicted and sentenced. This, it would seem, provides the basis for the principle of fundamental justice posited by Wilson J., namely, that an accused person must be tried and punished under the law in force at the time an offence is committed.

 

14.                     The appellant cannot, in my view, invoke the Milne principle because, even if initially invalid or improper, her conviction and sentence were statutorily endorsed by the s. 27(2) transitional provision. This is apparent from the application of s. 613  by the Alberta Court of Appeal on the appellant's appeal from conviction. Clearly, the new s. 218  and s. 669 (a) sentencing provisions are automatically triggered upon a conviction for first degree murder under the new s. 214 . Any appeal by the appellant of her sentence, separate from her unsuccessful appeal of conviction, would presumably have failed by virtue of an application of s. 27(2) in combination with s. 613 . It will be recalled that s. 27(2) read, in part:

 

...and thereafter the offence shall be dealt with, inquired into, tried and determined, and any punishment in respect of the offence shall be imposed as if it had been committed after the coming into force of this Act. [Emphasis added.]

 

Alternatively, any appeal from sentence may also have floundered on s. 603(1) (b) of the Criminal Code  which reads:

 

        603. (1) A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal

 

                          ...

 

(b) against the sentence passed by the trial court, with leave of the court of appeal or a judge thereof unless that sentence is one fixed by law.

 

Since the ss. 218(1)  and 669 (a) sentencing provisions are "fixed by law" for convictions for first degree murder, it is arguable that the Alberta Court of Appeal's upholding of the appellant's conviction in R. v. Gamble and Nichols, supra, precludes a subsequent appeal of her sentence because that sentence would be deemed "fixed by law".

 

15.                     The end result is that the initial wrongful application of the new provisions to the appellant was cured or validated by the operation of s. 27(2) in combination with s. 613  of the Criminal Code . I can see no principled reason for limiting La Forest J.'s statement in Milne only to convictions and sentences that were valid in law at the time of the conviction and pronouncement of the sentence. The validating effect of s. 27(2)  cured the illegality which therefore ceased to flow forward in time and taint the ongoing post‑Charter deprivation of liberty. Unless Milne is extended to the situation where a conviction and sentence are validated in law before the Charter  entered into force, a pre‑Charter  statute (s. 27(2) ) could be indirectly attacked by ignoring or jumping over it in order to preserve the initially wrongful conviction and sentence. Thus, the appellant's extended parole ineligibility cannot be challenged under s. 7  on the basis that there is an ongoing deprivation of liberty which was improper prior to the Charter  and which continues to be improper after the Charter .

 

16.                     To the extent that Wilson J. holds that the appellant's continued deprivation of liberty has become unlawful only as a result of enactment of the Charter , I fail to see how this does not also implicitly involve a retrospective application of s. 7 . Evaluation of the post‑Charter  execution of an originally valid, or subsequently validated, pre‑Charter  sentence involves a non‑retrospective application of s. 7  only if the fundamental injustice can be determined independently of the validity of pre‑Charter  events. In this case, however, the extended parole ineligibility of the accused is only fundamentally unjust if she should never have been sentenced to the punishment now being challenged. As discussed above, the only way to question the validity of the sentence is to measure that sentence's validity against Charter  standards in such a way that the validation of the sentence by s. 27(2)  is ignored.

 

17.                     By way of contrast, the argument of the appellant is not that it is unjust per se to be denied parole eligibility for 25 years, as is currently mandated for all those convicted under the new s. 214 of first degree murder. If this were the argument, then it would indeed be irrelevant whether the source of this ineligibility was a pre‑Charter  or a post‑Charter  sentence, and, therefore, a non‑retrospective evaluation of the execution of the sentence on its own terms would be involved. The point I am making is not that there is a principle of fundamental justice that minimum parole eligibility can be unjust, but that such a principle, if it existed, would not involve the problem of retrospectivity.

 

                           IV

 

Conclusion

 

18.                     I cannot accept that an ongoing violation of s. 7  can be found in this particular case without applying s. 7  to either s. 27(2) or to the sentence which it validated. As should be clear from the discussion at the end of the preceding section, I am not saying that post‑Charter  s. 7  challenges to the execution of pre‑Charter  sentences must necessarily involve a retrospective evaluation of the original valid or validated sentence. Nor do I wish to be understood as precluding the invocation of ss. 9  or 12  of the Charter  to challenge the carrying out of a sentence validly pronounced prior to the Charter : see Mitchell v. Attorney General of Ontario (1983), 35 C.R. (3d) 225 (Ont. H.C.), and R. v. Konechny (1983), 10 C.C.C. (3d) 233 (B.C.C.A.)

 

19.                     I would dismiss the appeal on the ground that the appellant's s. 7  claim involves a retrospective application of the Charter .

 

        The judgment of Lamer, Wilson and

 

 L'Heureux‑Dubé JJ. was delivered by

 

20.                     Wilson J.‑‑The appellant's claim in this case is that she has been deprived of her liberty under s. 7 of the Charter of Rights and Freedoms in a way which offends the principles of fundamental justice. She seeks relief under s. 24(1)  of the Charter .

 

I. The Facts

 

21.                     On March 12, 1976 at 3:00 p.m. the appellant, Janise Marie Gamble, then 21 years old, was involved with three others in the robbery of the Inglewood Credit Union in south‑east Calgary, Alberta. Two of the four, William Nichols and John Gamble, the appellant's husband, entered the Credit Union with hand guns and took $1,631. The appellant and Tracie Perry remained outside the Credit Union. The appellant drove the car away from the Credit Union but less than a mile from the scene of the robbery the car stopped apparently so that Nichols could replace Mrs. Gamble as the driver. Behind the hold‑up car in an unmarked vehicle was Detective Sergeant Allan Keith Harrison of the Calgary Police Force. A shoot‑out ensued with William Nichols and John Gamble exchanging shots with Detective Sergeant Harrison. Detective Sergeant Harrison was hit by a shot from Nichols' gun and died a few hours later.

 

22.                     After the police officer was shot the four made their getaway and subsequently took several hostages. All the hostages were not released until the next day at 7:00 p.m. when the appellant and Tracie Perry surrendered themselves. On March 14, 1976 the police entered the home in which the hostages were held and found John Gamble dead and William Nichols unconscious, both from drug overdoses.

 

23.                     On April 29, 1976 an information was sworn alleging that the appellant and Nichols had committed murder punishable by death contrary to s. 214  of the Criminal Code , then in force, R.S.C. 1970, c. C‑34 as amended by the Criminal Law Amendment (Capital Punishment) Act, S.C. 1973‑74, c. 38, s. 2. Following their preliminary enquiry the appellant and Nichols were committed for trial on June 30, 1976. On August 30, 1976, the appellant and Nichols were indicted for first degree murder under the new s. 214  of the Criminal Code  which had been enacted in June 1976 and proclaimed in force on July 26, 1976, Criminal Law Amendment Act (No. 2), 1976, S.C. 1974‑75‑76, c. 105, s. 4. On December 2, 1976, both the appellant and Nichols were convicted of first degree murder under the new s. 214  and sentenced to imprisonment for life without eligibility for parole for 25 years pursuant to new s. 669  of the Criminal Code  which had also been enacted and proclaimed as part of the new law, Criminal Law Amendment Act (No. 2), 1976, S.C. 1974‑75‑76, c. 105, s. 21. The Crown's case was that Nichols shot and killed Detective Sergeant Harrison and that the appellant was a party to the offence under s. 21  of the Criminal Code .

 

24.                     On appeal, the Appellate Division of the Supreme Court of Alberta held that because the proceedings against the appellant had been commenced before the coming into force of the new Criminal Code  provisions on July 26, 1976, the appellant should have been tried under the old provisions of the Criminal Code  in force at the time of the offence: R. v. Gamble and Nichols (1978), 40 C.C.C. (2d) 415. The Appellate Division, after comparing the old and new provisions, concluded that the appellant, Gamble, had been prejudiced by her trial under the new provisions because under the old provisions the Crown would have had to meet the burden of proving that Gamble had by her "own act caused or assisted in causing the death" of a police officer acting in the course of his duties as opposed to proving merely that Gamble was a party under s. 21  of the Criminal Code . They held, however, that they were prevented from granting the remedy of a new trial because of the transitional provisions in the new law. The Appellate Division concluded at p. 432:

 

        There is clearly a difference between the old and the new sections as regards the test to be applied in determining culpability for the murder of a police officer acting in the course of his duties.

 

        As regards the appellant Nichols, there can be no practical difference between the two wordings since it was clearly an act of Nichols, the firing of his gun, that caused the death of Detective Sergeant Harrison.

 

        So far as Mrs. Gamble is concerned, her position under the old section might have been different for the Crown would have had to prove, beyond a reasonable doubt, that she, by her own act, caused or assisted in causing the death of the police officer, rather than simply by establishing, as is required by the new section, that the victim was a police officer.

 

        In such circumstances, an appellate Court would ordinarily direct that there should be a new trial so that it could be conducted in accordance with the law that was properly applicable. So far as concerns the present appeal, however, s. 27(2) of the Amendment Act provides that such a new trial would be conducted, and punishment imposed, as if the offence had been committed after the coming into force of the Amendment Act. The practical effect of that subsection is that the law applicable to the new trial would be the same as that which was in fact applied at the trial already held, and with respect to which this appeal is concerned.

 

        The result of all this is that no substantial wrong or miscarriage of justice has occurred.

 

        It follows that the appeals of both William Nichols and Janise Gamble must be dismissed.

 

25.                     The appellant's application for leave to appeal to this Court was dismissed on October 3, 1978, [1978] 2 S.C.R. vii.

 

26.                     This Court has already commented on the difference between the punishment provisions under the old and new murder offences and concluded that the difference between denial of eligibility of parole for the first 25 years of a sentence of life imprisonment under the new provisions and parole eligibility of between 10 and 20 years under the old provisions is an issue of "first importance" to those subject to them and as such "by no means... academic": see Miller and Cockriell v. The Queen, [1977] 2 S.C.R. 680, at pp. 714 ff. (See also R. v. Logan (1986), 51 C.R. (3d) 326 (Ont. C.A.))

 

27.                     Under the old punishment provisions of s. 218  those who were convicted of murder punishable by life imprisonment or who had their death sentence commuted were rendered ineligible for parole for a minimum of 10 years. The sentencing judge could make a recommendation for parole ineligibility between 10 to 20 years on a recommendation from a jury that the period of ineligibility be increased beyond 10 years and also having regard "to the character of the accused, the nature of the offence and the circumstances surrounding its commission." In contrast, the new provisions under which the appellant was tried and convicted provided that a person convicted of first degree murder was ineligible for parole for 25 years.

 

28.                     The appellant has been imprisoned in the Prison for Women in Kingston, Ontario for the past 12 years. In March 1986 the appellant applied to the Supreme Court of Ontario under s. 24(1)  of the Charter  for relief against her continued detention pursuant to the condition of her sentence that she not be eligible for parole for 25 years. She bases her claim for relief in this Court on an alleged violation of s. 7  of the Charter .

 

II. Legislation

 

29.                     For convenience, the relevant statutory provisions will be classified as "the old law" and "the new law", and "the transitionary provisions". The old law, as it existed at the time the offence was committed, provides as follows:

 

        214. (1) Murder is punishable by death or is punishable by imprisonment for life.

 

        (2) Murder is punishable by death, in respect of any person, where such person by his own act caused or assisted in causing the death of

 

(a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff's officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties, or

 

(b) a warden, deputy warden, instructor, keeper, gaoler, guard or other officer or permanent employee of a prison, acting in the course of his duties,

 

or counselled or procured another person to do any act causing or assisting in causing the death.

 

        (3) All murder other than murder punishable by death is punishable by imprisonment for life.

 

        218. (1) Every one who commits murder punishable by death is guilty of an indictable offence and shall be sentenced to death.

 

        (2) Every one who commits murder punishable by imprisonment for life is guilty of an indictable offence and shall be sentenced to imprisonment for life.

 

                          ...

 

        (5) Notwithstanding anything in the Parole Act and unless the Parliament of Canada otherwise directs, no person

 

(a) upon whom a sentence of imprisonment for life in respect of murder has been imposed after the coming into force of this subsection,

 

                          ...

 

(c) in respect of whom a sentence of death in respect of murder has been commuted after the coming into force of this section to imprisonment for life,

 

shall be released pursuant to the terms of a grant of parole under the Parole Act unless

 

(d) at least ten years of that sentence calculated in the manner described in subsection (7) have been served, and

 

(e) the National Parole Board, by a vote of at least two‑thirds of its members, has made a decision that parole under that Act be granted to that person.

 

        (6) Notwithstanding paragraph (5)(d), the judge presiding at the trial of an accused who is or was convicted of murder or, where such judge is unable to do so, another judge of the same court may

 

(a) at the time of sentencing of the accused, in a case referred to in paragraph (5)(a), or

 

(b) at any time on application made to him within a reasonable time after

 

(i) the coming into force of this section, in a case referred to in paragraph (5)(b), or

 

(ii) the execution of an instrument or writing mentioned in subsection 684(2) declaring that a sentence of death has been commuted, in a case referred to in paragraph (5)(c),

 

having regard to the character of the accused, the nature of the offence and the circumstances surrounding its commission, and to any recommendation made pursuant to subsection (8), by order substitute for the number of years specified in paragraph (5)(d) a number of years that is not more than twenty but more than ten.

 

(Criminal Law Amendment (Capital Punishment) Act, S.C. 1973‑74, c. 38, ss. 2 and 3.)

 

The new law, which was proclaimed in force on July 26, 1976 and under which the appellant was convicted and punished, provides as follows:

 

        214. (1) Murder is first degree murder or second degree murder.

 

        (2) Murder is first degree murder when it is planned and deliberate.

 

                          ...

 

        (4) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the victim is

 

(a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff's officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties;

 

(b) a warden, deputy warden, instructor, keeper, gaoler, guard or other officer or a permanent employee of a prison, acting in the course of his duties; or

 

(c) a person working in a prison with the permission of prison authorities and acting in the course of his work therein.

 

        218. (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.

 

        669. The sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be,

 

(a) in respect of a person who has been convicted of high treason or first degree murder, that he be sentenced to imprisonment for life without eligibility for parole until he has served twenty‑five years of his sentence;

 

(b) in respect of a person who has been convicted of second degree murder, that he be sentenced to imprisonment for life without eligibility for parole until he has served at least ten years of his sentence or such greater number of years, not being more than twenty‑five years, as has been substituted therefor pursuant to section 671; . . .

 

(Criminal Law Amendment Act (No. 2), 1976, S.C. 1974‑75‑76, c. 105, ss. 4, 5, 21.)

 

30.                     The transitional provision, which the Appellate Division of the Alberta Supreme Court held prevented the appellant from receiving the relief of a new trial under the old provisions, provides:

 

        27. (1) Where proceedings in respect of any offence of treason, piracy or murder, whether punishable by death or not, that was committed before the coming into force of this Act are commenced after the coming into force of this Act, the offence shall be dealt with, inquired into, tried and determined, and any punishment in respect of the offence shall be imposed as if the offence had been committed after the coming into force of this Act irrespective of when it was actually committed.

 

        (2) Where proceedings in respect of any offence of treason, piracy or murder, whether punishable by death or not, were commenced before the coming into force of this Act, and a new trial of a person for the offence has been ordered and the new trial is commenced after the coming into force of this Act, the new trial shall be commenced by the preferring of a new indictment before the court before which the accused is to be tried, and thereafter the offence shall be dealt with, inquired into, tried and determined, and any punishment in respect of the offence shall be imposed as if it had been committed after the coming into force of this Act.

 

(Criminal Law Amendment Act (No. 2), 1976, S.C. 1974‑75‑76, c. 105.)

 

31.                     The relevant sections of the Charter  provide:

 

        7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

        24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

 

        11. Any person charged with an offence has the right

 

                          ...

 

(i)     if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

 

III. The Judgments Below

 

Supreme Court of Ontario

 

32.                     Watt J. denied the appellant's application for relief by means of a writ of habeas corpus ad subjiciendum with a writ of certiorari in aid and under s. 24(1)  of the Charter  on the basis that the Supreme Court of Ontario did not have jurisdiction to grant relief and that the appellant should pursue relief by means of an appeal of sentence to the Alberta courts: (1986), 17 W.C.B. 188. He held that the court could not exercise its supervisory jurisdiction over the superior court or over the courts of another province. The trial judge also held that he did not have jurisdiction to grant the relief of habeas corpus because a declaration of parole eligibility would not secure the complete and immediate liberty of the applicant. Moreover, the scope of review demanded by the applicant required the court to go behind the warrant of committal and the question of the trial court's jurisdiction to enter a verdict and would, in effect, transform the application into an appeal on the merits of both the conviction and the sentence. Finally, Watt J. rejected the appellant's claim under s. 11 (i) of the Charter  because it could not be granted without giving the Charter  retrospective application and, in any event, the appellant was not entitled to relief under s. 11 (i) because both the offence and the punishment had been changed.

 

Ontario Court of Appeal

 

33.                     The Ontario Court of Appeal (Houlden, Grange and Tarnopolsky JJ.A.) dismissed the appeal in short oral reasons and held that the courts of Alberta were the proper fora for the determination of the issues that arose in the case: (1987), 3 W.C.B. (2d) 88.

 

IV. The Issues

 

34.                     The appellant alleges that her continued detention pursuant to the 25‑year parole ineligibility condition in her sentence violates s. 7  of the Charter . She submits that she is entitled to a declaration (under s. 24(1)  of the Charter ) that she is now eligible for parole having spent 12 years in prison. The respondent argues that the Supreme Court of Ontario has no jurisdiction in this case, that the requested relief cannot be granted by way of habeas corpus, and that to grant the relief sought would constitute a retrospective application of the Charter  because, even if a breach of the principles of fundamental justice had occurred, it occurred well before the proclamation of the Charter . The respondent and interveners also question the appellant's entitlement to the requested remedy. These allegations require us to answer the following questions:

 

(a) Would the application of the Charter  in the circumstances of this case constitute a retrospective application of the Charter  to events prior to its proclamation?

 

(b) Does the Ontario Supreme Court have jurisdiction in this case?

 

(c) Can the requested review of the period of parole eligibility be undertaken on an application by way of habeas corpus ad subjiciendum with certiorari in aid and under s. 24(1)  of the Charter ?

 

(d) Are the appellant's rights under s. 7  of the Charter  presently violated?

 

(e) Is the appellant entitled to the relief requested and can the courts in this matter grant the remedy of a declaration that the appellant is eligible for parole?

 

A) Retrospectivity

 

35.                     A number of decisions of this Court have addressed the retrospective application of the Charter  but none seem to me to be determinative of the issue in the present appeal. The appellant submits that her s. 7  rights are violated by the current operation of the parole ineligibility provisions ordered under the unlawful application of s. 669 (a) of the Criminal Code  to her case. The appellant suggests that the decision of this Court in R. v. Milne, [1987] 2 S.C.R. 512, is distinguishable in that she is not seeking a review of her pre‑Charter  trial and sentence in light of the standards contained in the Charter , but rather seeks review of and relief from the current operation of the parole ineligibility provision in her sentence. In short, the appellant submits that the Charter  is being applied prospectively to the continued operation of the parole ineligibility provision and asks this Court to focus its attention on the current operation and effect of the illegal parole ineligibility provision.

 

36.                     The respondent, on the other hand, insists that the focus of this Court's review should be on the soundness of the Alberta Court of Appeal's conclusion that, despite the fact that the appellant was tried and punished under the wrong law, s. 27(2) of the Criminal Law Amendment Act (No. 2), 1976, prevented the remedy of a new trial under the old law. The respondent relies on Milne and argues that in that case this Court rejected the argument that the original pre‑Charter  sentencing of an offender as a dangerous offender could be reviewed in light of the Charter  and subsequent Criminal Code  amendments.

 

37.                     With respect, I do not think that Milne governs the facts of this case. In Milne, after referring to the judgment of Linden J. in Mitchell v. Attorney General of Ontario (1983), 35 C.R. (3d) 225 (Ont. H.C.), La Forest J. explicitly stated at pp. 527‑28:

 

        In light of the conclusions I have arrived at, it becomes unnecessary to consider respondent's argument against Linden J.'s view in Mitchell, supra, that the execution or the carrying out of the sentence, as opposed to its original pronouncement, can be reviewed at any time under the Charter  without retrospectively applying the latter's provisions to the original pronouncement (see also R. v. Konechny (1983), 10 C.C.C. (3d) 233 (B.C.C.A.)) and I refrain from doing so.

 

In R. v. Konechny (1983), 10 C.C.C. (3d) 233, the British Columbia Court of Appeal ruled that the application of ss. 9  and 12  of the Charter  to the execution of a sentence constituted a prospective application of the Charter  even although the sentence had been ordered and commenced before the Charter  came into force. MacFarlane J.A. stated at p. 250:

 

A prospective application of the Charter  would justify the release of a person, who had been or was to be arbitrarily detained or imprisoned, whenever his detention or imprisonment had commenced, or had been ordered. Similarly, a person could not be subjected to cruel and unusual treatment or punishment after the Charter  came into effect, even if it had been ordered pre‑Charter . Sections 9  and 12  do not focus on the date of the order imposing imprisonment or punishment, but on the imprisonment or punishment itself, which in this case is yet to occur. I conclude, therefore, that ss. 9  and 12  of the Charter  could apply in this case.

 

Similarly, Lambert J.A., dissenting on the merits but not on this point, concluded that if the appellant was successful in claiming that his present imprisonment constituted a violation of ss. 9  or 12  of the Charter , the Charter  would not be applied to the original pre‑Charter  sentencing and conviction but it would be applied to its unlawful execution. He said at p. 239 that:

 

...the conviction would remain a lawful conviction, the sentence would remain a sentence that was lawfully pronounced, but the carrying out of the sentence would have become unlawful. So the appellant is not seeking any retroactive application of the Charter ; he is asking only for a prospective application.

 

See also, W. Black, "Charter of Rights ‑‑Application to Pre‑Enactment Events", (1982) U.B.C. L. Rev. (Charter Ed.) 59, at pp. 90‑92.

 

38.                     On the reasoning in Mitchell and Konechny the relevant act to which the Charter  is applied would not be the conviction or sentencing but the continuing execution of that part of the sentence which mandates a 25‑year period of parole ineligibility. In R. v. Stevens, [1988] 1 S.C.R. 1153, the majority of this Court adopted at p. 1158 the following formulation offered in R. v. James (1986), 27 C.C.C. (3d) 1 (Ont. C.A.), at pp. 21 and 25, aff'd [1988] 1 S.C.R. 669:

 

Tarnopolsky J.A., who delivered the judgment of the Court of Appeal, said that "one applies the law in force at the time when the act that is alleged to be in contravention of a Charter  right or freedom occurs" and that "it is important that actions be determined by the law, including the Constitution, in effect at the time of the action" . . . .

 

The minority in Stevens articulated a similar test for determining if an application of s. 7  was prospective or retrospective, stating at p. 1167:

 

Rather, the section seems to direct one to the point of time at which someone is about to be deprived of his or her life, liberty or security of the person. It is the projected deprivation which triggers the application of s. 7 . We must ask therefore whether, at the time of the projected deprivation of the accused's right to liberty, that deprivation would be in accordance with the principles of fundamental justice or not.

 

Under both the majority and the minority formulation in Stevens the crucial question becomes: what is the event which is alleged to be in contravention of the Charter ? At what point in time does the event which deprives a person of his or her life, liberty or security of the person occur?

 

39.                     In approaching this crucial question it seems to me preferable for the courts to avoid an all or nothing approach which artificially divides the chronology of events into the mutually exclusive categories of pre and post‑Charter . Frequently an alleged current violation will have to be placed in the context of its pre‑Charter  history in order to be fully appreciated. For example, in considering delay before trial Martin J.A. of the Ontario Court of Appeal commented in R. v. Antoine (1983), 5 C.C.C. (3d) 97 (Ont. C.A.), at p. 102:

 

Manifestly, s. 11(b) of the Charter  applies only to trials taking place after it came into force, and it does not reach back and affect past trials. An enactment does not, however, operate retrospectively because a part of the requisites for its operation is drawn from a time antecedent to its coming into force, nor because it takes into account past events: . . . .

 

Charter  standards cannot be applied to events occurring before its proclamation but it would be folly, in my view, to exclude from the Court's consideration crucial pre‑Charter  history. Indeed, a review of such history will often be necessary when the Court exercises its broad discretion under s. 24(1)  to formulate the remedy which is appropriate and just in the circumstances. As Martin J.A. noted at p. 104:

 

        Patently, s. 24 can be invoked only where a right guaranteed by the Charter  is alleged to have been infringed, and I accept, of course, that there cannot be a breach of a new right conferred by the Charter  prior to the creation of the right. For example, s. 10 (b) of the Charter  provides that everyone has the right on arrest "to retain and instruct counsel without delay and to be informed of that right". The words which I have italicized confer a new right. That right could not be contravened prior to the coming into force of the Charter  because the right did not exist: see R. v. Lee (1982), 142 D.L.R. (3d) 574, 1 C.C.C. (3d) 327, 30 C.R. (3d) 395 (Sask. C.A.). Where, however, there has been a breach of a right secured by the Charter  it would be illogical to hold that the remedy provided by s. 24  for Charter  contraventions does not apply merely because the proceeding in which the Charter  right was contravened was initiated prior to the coming into force of the Charter , where the contravention occurred after the Charter  came into effect.

 

A constitutional remedy to be fully appropriate and just may have to take into account pre‑Char­ter events.

 

40.                     Another crucial consideration will be the nature of the particular constitutional right alleged to be violated. I would agree with the statement of Borins Co. Ct. J. in R. v. Dickson and Corman (1982), 3 C.C.C. (3d) 23, at p. 29:

 

Indeed, it may be that the Constitution defies strict doctrinal characterization as either exclusively retroactive, retrospective or prospective legislation for, as I suggested in the preceding paragraph, different facts may produce different interpretations. The operation of the Constitution in different cases will no doubt involve quite different considerations.

 

Such an approach seems to me to be consistent with our general purposive approach to the interpretation of constitutional rights. Different rights and freedoms, depending on their purpose and the interests they are meant to protect, will crystallize and protect the individual at different times. Our previous decisions on the retrospective application of the Charter  are consistent with an approach which pays attention to differences in the purposes of the relevant rights and freedoms. For example, procedural rights will crystallize at the time of the process: Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181. Rights against unreasonable searches and seizures will crystallize at the time of the search and seizure: R. v. James, [1988] 1 S.C.R. 669. Substantive guarantees that the accused receive the benefit of his or her subjective mistake of fact crystallize at the time the offence was committed: R. v. Stevens, supra. The right against the introduction of self‑incriminating evidence crystallizes at the time the evidence is sought to be introduced in a proceeding even although the testimony was originally provided well before the Charter  came into force: Dubois v. The Queen, [1985] 2 S.C.R. 350.

 

41.                     Some rights and freedoms in the Charter  seem to me to be particularly susceptible of current application even although such application will of necessity take cognizance of pre‑Charter  events. Those Charter rights the purpose of which is to prohibit certain conditions or states of affairs would appear to fall into this category. Such rights are not designed to protect against discrete events but rather to protect against an ongoing condition of state of affairs. Pre‑trial delay under s. 11 (b) is a good example: R. v. Antoine. Section 15  may also fall into this category. Morden J.A. recognized in Re McDonald and The Queen (1985), 21 C.C.C. (3d) 330 (Ont. C.A.) that there was such a thing as a continuing discriminatory practice under s. 15  of the Charter . He said at p. 347:

 

        The respondent does not seek what he submits is a retroactive or retrospective application of s. 15 , that is, he does not ask to have the steps taken in the proceedings against him before April 17, 1985, set aside or declared void. Rather he says that his submission involves an entirely prospective application of the Charter . He seeks only those benefits of the Young Offenders Act that would be applicable to the proceedings from April 17, 1985, forward. He submits that regardless of what the case was before April 17, 1985, there is now a situation of inequality that infringes s. 15  and that this situation requires a remedy. I believe that this argument is sustainable on the authorities: cf. R. v. Antoine (1983), 41 O.R. (2d) 607, 5 C.C.C. (3d) 97, 148 D.L.R. (3d) 149; R. v. Konechny (1983), 10 C.C.C. (3d) 233, 6 D.L.R. (4th) 350, 38 C.R. (3d) 69; R. v. Langevin (1984), 45 O.R. (2d) 705, 11 C.C.C. (3d) 336, 8 D.L.R. (4th) 485, and Re Chapman and The Queen (1984), 46 O.R. (2d) 65, 12 C.C.C. (3d) 1, 9 D.L.R. (4th) 244. Contrast Re Latif and Canadian Human Rights Com'n (1979), 105 D.L.R. (3d) 609, [1980] 1 F.C. 687, 28 N.R. 494, a case concerned with a statute prohibiting discriminatory practices, where it was held that the discriminatory conduct was complete before the statute came into force and was not "a continuing discriminatory practice" (p. 621 D.L.R., p. 700 F.C.).

 

42.                     Another example would be imprisonment or detention in conditions which constitute either an arbitrary deprivation of liberty or cruel and unusual punishment: R. v. Konechny, supra; R. v. Longtin (1983), 5 C.C.C. (3d) 12 (Ont. C.A.)

 

43.                     Not only will the scope and content of the particular right and freedom be relevant in determining whether an applicant is seeking to have the Charter  applied prospectively or retrospectively, but the particular facts of the claim will be relevant. For example, in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, s. 15 was not applied because it was being invoked to challenge a pre‑Charter  conviction. Dickson C.J. noted at p. 786:

 

The retailers in the present appeals opened their stores, were charged and were convicted at a time when the Charter  did not confer a right to equality before and under the law. Even if it could be said that the Retail Business Holidays Act has abridged the retailers' s. 15  rights since April 17, 1985, I cannot see how this might have any bearing on the legality of their convictions or of the Act prior to that time.

 

Section 15  could not be used to invalidate a discrete pre‑Charter  act, namely a particular conviction. Likewise, in Jack and Charlie v. The Queen, [1985] 2 S.C.R. 332, the appellants could not invoke their new rights of religious freedom under s. 2 (a) of the Charter  to invalidate their conviction for an offence committed before the coming into force of the Charter .

 

44.                     In the context of this case the appellant's Charter  claim would surely fail if she were invoking s. 7  "to reach back and reverse the liability which clearly existed on the basis of the facts and the law in existence at the time the offences were committed": R. v. Lucas; R. v. Neely (1986), 27 C.C.C. (3d) 229 (Ont. C.A.), at p. 237. If this were indeed the case, this Court's decision in Milne would govern and the continuing status argument would have to be rejected if its object was to overturn a pre‑Charter  conviction and sentence. The appellant would then have been "properly convicted and sentenced" at a time before the Charter  came into force and she would be left to serve the sentence and pursue her appeal rights in the normal way.

 

45.                     When, as is the case here, the appellant claims a continuing current violation of her liberty interest, it is the duty of the courts to consider her Charter  claim and, in the context of that claim, to consider pre‑Charter  history to the extent it explains or contributes to what is alleged to be a current Charter  violation. This is especially true when the pre‑Charter  history is alleged to include unlawful conduct on the part of the Crown. This Court's decision in Milne not to allow a pre‑Charter  conviction and sentence to be reviewed in light of subsequent changes in the law and the enactment of the Charter  was made on the basis that the applicant in that case: "like any other person who is properly convicted and sentenced, he must otherwise serve his sentence according to its tenor" (p. 526, emphasis added). In the case at hand the overwhelmingly significant fact is that the applicant was not "properly convicted and sentenced". She was convicted and sentenced under the wrong law. In short this is not a case in which an applicant is trying to avoid having the law as it existed at the time of the offence applied to him or her. It is the very opposite. The appellant has not had the proper law applied to her situation, nor can she have it now.

 

46.                     In Milne this Court rightly refused to apply "existing law" (p. 520) to a pre‑Charter  conviction and sentence which was proper according to the law in force at the time of the conviction and sentence or to apply the Charter  so as to vitiate a sentence valid and proper at the time it was imposed. But that is not this case. The appellant's case is that the parole ineligibility provision in her sentence violates her liberty interest under s. 7  of the Charter  and that the current ongoing operation of that provision is itself unlawful. This unlawfulness is part of the pre‑Charter  history, indeed a very significant part of it and has, in the appellant's submission, largely contributed to her current continuing unconstitutional detention.

 

B) Jurisdiction of the Ontario Courts

 

47.                     The trial judge held that the Ontario courts did not have jurisdiction to entertain the appellant's application for habeas corpus and Charter  relief under s. 24(1)  of the Charter . Watt J. stated:

 

        Further, it should be pointed out that the offence here committed, as well as all trial and appellate proceedings, save the application for leave to appeal and the present application, took place before Courts of competent jurisdiction in the Province of Alberta. The applicant's sole connection with this province is her confinement in the Prison for Women at Kingston, Ontario, in default of such a facility in the province of her conviction.

 

Accepting that the appellant's sole connection with Ontario is her confinement in this province over the past 12 years, I do not believe that the fact she was convicted and sentenced in Alberta deprives the Superior Court of Ontario of its traditional jurisdiction to issue a writ of habeas corpus ad subjiciendum to those in the province detaining a person in the province for the purpose of reviewing the legality of that detention or confinement. Where the courts of Ontario have jurisdiction over the subject matter and the person, it seems to me that they may, under the broad provisions of s. 24(1)  of the Charter , grant such relief as it is within their jurisdiction to grant and as they consider appropriate and just in the circumstances: Mills v. The Queen, [1986] 1 S.C.R. 863.

 

48.                     The remedy of habeas corpus ad subjiciendum has traditionally run from the courts of the jurisdiction in which the person seeking review of the legality of his or her detention is confined: R. v. Riel (1885), 2 Man. L.R. 302 (Man. Q.B.); Ex parte Stather (1886), 25 N.B.R. 374 (N.B.S.C.); R. v. Holmes, [1932] 3 W.W.R. 76 (Man. K.B.); Laflamme v. Renaud (1945), 84 C.C.C. 153 (Que. S.C.) In Ex parte Stather the New Brunswick Court of Appeal rejected the submission that an accused convicted and sentenced by the courts of Nova Scotia could not have the legality of his detention in Dorchester Penitentiary, New Brunswick, reviewed by way of habeas corpus in the courts of New Brunswick. As Palmer J. noted at p. 378:

 

It would appear to be absurd that a person could be deprived of his personal liberty illegally, merely because he was placed in the Dominion Penitentiary and be without remedy. It is clear he could not apply to the Court of Nova Scotia, for it has no officers here, and its process would have no force in this Province and could not be executed here.

 

The commentators seem to agree that habeas corpus proceedings can be pursued in the courts of the province of the alleged illegal detention: see G. Létourneau, The Prerogative Writs in Canadian Criminal Law and Procedure (1976), at pp. 310‑12; D. A. Cameron Harvey, The Law of Habeas Corpus in Canada (1974), at pp. 66 ff.; R. J. Sharpe, The Law of Habeas Corpus (1976), at p. 191, note 5.

 

49.                     Moreover, allowing the courts of the jurisdiction in which the prisoner is confined to entertain an application for the writ makes good practical sense because the writ will be served on those responsible for the confinement of the prisoner so that he or she can be brought before the court: see R. v. Holmes, supra. In the present case, for example, the writ was intended to issue to the Warden of the Prison for Women in Kingston. Although we did not reach the jurisdictional issue in Milne, the case demonstrates the virtue of habeas corpus being available in the province of detention. Milne, who was in custody in Ontario, launched his Charter  challenge against the lawfulness of his continuing detention by way of an application for habeas corpus in the Ontario courts although he was originally convicted and sentenced in British Columbia.

 

50.                     The traditional concerns regarding the ready availability of habeas corpus to prisoners in the jurisdiction in which they are confined are accentuated by the crucial role that superior courts play under s. 24(1)  of the Charter  as courts with "constant, complete and concurrent jurisdiction for s. 24(1)  applications": see R. v. Rahey, [1987] 1 S.C.R. 588, at pp. 603‑4. As my colleague, Lamer J., pointed out in Mills at p. 899:

 

The superior courts of our country have always demonstrated the greatest of flexibility as regards procedure, acknowledging that it is there to guarantee rights and not to hinder them.

 

Superior courts would needlessly hinder the enforcement of rights if they refused to hear habeas corpus applications from prisoners detained within their jurisdiction.

 

51.                     The respondent submits that the appellant should seek relief by appealing her sentence in Alberta. Even if an appeal of sentence in Alberta were open to the appellant at this late date, I do not believe that in the circumstances of this case the superior courts would be justified in declining to exercise their concurrent jurisdiction on that ground. Given 1) the time that has elapsed since the original sentencing; 2) the appellant's legitimate expectation after the outcome of her appeal from conviction that the sentence was "one fixed by law" and thus not appealable under s. 603(1) (b) of the Criminal Code ; and 3) the fact that she claims an ongoing and continuing violation of her Charter  rights as a matter of some urgency, this would not appear to be a case in which it would have been appropriate for the superior court, had it recognized its jurisdiction, to decline to exercise it. A superior court by exercising its jurisdiction in this case would not have interfered with the orderly administration of justice by displacing a more appropriate appeal process. Indeed, it is doubtful whether the appellant's Charter  claims could at this late stage be considered in the Alberta courts on an ordinary sentence appeal. Accordingly, the basic principle enunciated in Mills and Rahey that there must always be a court of competent jurisdiction to entertain a s. 24(1)  application comes into play. In this context I find the following formulation offered in dissent by Cartwright C.J. in Sanders v. The Queen, [1970] S.C.R. 109, at p. 126, very helpful:

 

When I say the appellant is left without remedy, I have not overlooked the fact that the Court of Appeal for British Columbia had, and I suppose still has, power to extend the time for appealing to that Court; but the appellant cannot claim such an extension as a right, he can but seek it as an indulgence.

 

If the superior court were not available to the appellant, she could very well be left without a remedy for the alleged violation of her Charter  rights and that is not a situation which a court should countenance if it has the means to avoid it.

 

52.                     The Ontario Court of Appeal in their brief reasons for judgment based their decision on a concept analogous to forum non conveniens in private international law. They declined jurisdiction on the basis that there was another forum better able to deal with the matter: see Antares Shipping Corp. v. The Ship "Capricorn", [1977] 2 S.C.R. 422. The Court of Appeal concluded:

 

In our judgment, the proper forum for the determination of the issues that arise in this case is Alberta: that province is where the crime was committed, where the full record of the proceedings is located and where the order and warrant for committal were issued. The courts of that province are, in our opinion, best able to determine whether the appellant should have properly been found guilty of murder punishable by imprisonment for life, and if so, what the proper period of parole ineligibility should be.

 

The superior courts do unquestionably have a discretion to decline to exercise their jurisdiction if the normal trial and appeal process is better suited to vindicate the interests at stake (Re Krakowski and The Queen (1983), 4 C.C.C. (3d) 188 (Ont. C.A.); Re Anson and The Queen (1983), 4 C.C.C. (3d) 119 (B.C.C.A.)) but this discretion should, in my view, be exercised with due regard to the constitutionally mandated need to provide prompt and effective enforcement of Charter  rights especially when, as is the case here, an ongoing and continuing violation of a Charter  right is alleged and the superior court is being asked to exercise its traditional function to determine the legality of an ongoing deprivation of liberty. This Court has previously recognized "the importance of the local accessibility of this remedy" of habeas corpus because of the traditional role of the court as "a safeguard of the liberty of the subject": R. v. Miller, [1985] 2 S.C.R. 613, at pp. 624‑25. Relief in the form of habeas corpus should not be withheld for reasons of mere convenience.

 

53.                     The respondent in his written submissions asserts not only that the courts of Ontario do not have jurisdiction to entertain the appellant's application but, in the alternative, that the appellant must seek relief in the Federal Court. This alternative claim is without merit in light of this Court's recent decisions affirming and upholding the traditional jurisdiction of provincial superior courts in habeas corpus matters: see R. v. Miller, supra, at pp. 624‑25; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Morin v. National Special Handling Unit Review Committee, [1985] 2 S.C.R. 662; Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459; Argentina v. Mellino, [1987] 1 S.C.R. 536, at p. 557. Although the respondent is quite right in pointing out that the Charter  does not create a "parallel system for the administration of Charter  rights over and above the machinery already available for the administration of justice" and that the court's new responsibilities under s. 24(1)  can "be fitted into the existing scheme of Canadian legal procedure" (Mills, at pp. 971 and 953), he does no credit to that existing system by attempting to place procedural roadblocks in the way of someone like the appellant who is seeking to vindicate one of the citizens' most fundamental rights in the traditional and appropriate forum.

 

54.                     In my view, the fact that the appellant is currently imprisoned in Ontario and alleges that her continued imprisonment pursuant to the condition in her sentence that she not be eligible for parole for 25 years violates her Charter  rights is sufficient to give the superior courts of Ontario jurisdiction to determine the legality of her detention.

 

C) Habeas Corpus Jurisdiction

 

55.                     A variety of arguments were made by the respondent and the interveners to the effect that the requested review and subsequent relief could not be undertaken under the habeas corpus jurisdiction of a superior court. Several of these arguments were accepted by the trial judge. One objection was that the review requested was directed at overturning the conviction and sentencing of the appellant and required more extensive review of the merits than is permitted by a court exercising its habeas corpus jurisdiction. Another objection was raised to the use of the Ontario superior courts to review a criminal trial conducted by a superior court in another province. It was also claimed that habeas corpus review could not be directed at illegal conditions of parole eligibility but was only available when its purpose was to secure the complete liberty of the subject. I propose to address each of these objections. I should say, however, that I am not persuaded by any of them in the context of the present case.

 

56.                     The principal objection to the availability of habeas corpus in this case is based, I believe, on a misunderstanding of the appellant's claim. Watt J. concluded at trial that to entertain the appellant's claim "would be to transform the present proceedings by way of habeas corpus from a jurisdictional inquiry to an appeal on the merits" of both the conviction and the sentence. If this were indeed the case, the appellant would most likely be denied relief by way of habeas corpus because of this Court's decisions not to allow habeas corpus to be used to circumvent the ordinary appeal procedures established in the Criminal Code : see Re Trepa­nier (1885), 12 S.C.R. 111; Re Sproule (1886), 12 S.C.R. 140, at p. 204; Goldhar (No. 2) v. The Queen, [1960] S.C.R. 431, at p. 439; Morrison v. The Queen, [1966] S.C.R. 356; Karchesky v. The Queen, [1967] S.C.R. 547, at p. 551; Korponay v. Kulik, [1980] 2 S.C.R. 265. Moreover, since this Court denied leave to appeal the conviction on October 3, 1978, the interests of finality of criminal convictions and the principle of res judicata would apply: see R. v. Wigman, [1987] 1 S.C.R. 246, at pp. 257‑58.

 

57.                     The respondent also argued that the review sought amounted to a form of collateral attack on the sentence which is impermissible under this Court's decision in Wilson v. The Queen, [1983] 2 S.C.R. 594. This argument is based on the same faulty characterization of the appellant's claim and also on a misinterpretation of the judgment in Wilson which was not addressed to challenges by way of the prerogative writs (see pp. 599 and 614).

 

58.                     None of the foregoing decisions dealing with the protection of the integrity of the appeal process and the finality of criminal convictions apply to the present case because the Ontario Court of Appeal, in my view, correctly characterized the appellant's claim when it said:

 

        The appellant is not challenging the validity of her conviction or of the sentence of life imprisonment imposed upon her. She alleges that by reason of the Charter , the sentence of the Alberta court fixing her period of parole ineligibility at twenty‑five years is no longer valid.

 

59.                     In Dumas v. Leclerc Institute, supra, this Court examined the availability of habeas corpus in the parole context. My colleague, Lamer J., stated at p. 464:

 

In the context of correctional law, there are three different deprivations of liberty: the initial deprivation of liberty, a substantial change in conditions amounting to a further deprivation of liberty, and a continuation of the deprivation of liberty.

 

In Dumas, as in this case, it was the continuation of the deprivation of liberty that was being challenged and the Court concluded at p. 464:

 

        The continuation of an initially valid deprivation of liberty can be challenged by way of habeas corpus only if it becomes unlawful.

 

In this case the appellant claims that her continued deprivation of liberty by operation of the 25‑year parole ineligibility provision has become unlawful by reason of the enactment of the Charter . That provision in her sentence, she submits, precludes any consideration by the Parole Board of parole for her until the expiration of the 25‑year period. She alleges, therefore, that she is suffering a continued deprivation of her liberty which is unlawful by virtue of s. 7  of the Charter .

 

60.                     In general, applicants for Charter  relief should, I believe, be allowed a reasonable measure of flexibility in framing their claims for relief in light of the interests the Charter  rights on which they rely were designed to protect. In R. v. Lyons, [1987] 2 S.C.R. 309, I suggested (at p. 381) that in order to avoid a "restrictive approach to Charter  remedies" an individual should be able to challenge his or her status as a dangerous offender subject to an indeterminate sentence without necessarily having to attack the conviction or finding of guilt:

 

The appellant might well have felt that he would not succeed in a claim under s. 24(1)  to set his conviction aside, that the Court would not view this as the appropriate and just remedy in the circumstances, but that it might consider it appropriate and just to set aside the order for additional punishment. I would resist any suggestion that an accused alleging a violation of his Charter  rights must claim all or nothing.

 

In this case the appellant, for obvious reasons, has deliberately avoided framing her claim as an attempt to overturn her original conviction or sentence. It should not therefore be unnecessarily construed as such to her detriment. She should be allowed, rather, to seek the relief she believes best suited to the vindication of her rights.

 

61.                     Our earlier discussion of the retrospectivity issue also points up the importance of the way in which a Charter  claim is framed. The appellant attacks her current detention as violating her constitutional rights. She does not attack her pre‑Charter  conviction and sentence. This is no doubt the course of prudence on her part designed to avoid a charge of retrospectivity. I see no possible objection to a litigant's presenting his or her claim in its strongest possible light.

 

62.                     In Miller, supra, this Court expressed the view that certiorari should be allowed in aid of the provincial superior court's traditional habeas corpus jurisdiction. The respondent submits that in this case the appellant is requesting certiorari to quash her conviction in violation of s. 710  of the Criminal Code . Again the respondent relies on a faulty characterization of the appellant's claim as being an attempt to have her conviction or sentence reviewed on the merits as if it were an appeal. In my view, this is simply not so.

 

63.                     The respondent claims and the trial judge accepted that the review requested in this case would exceed the jurisdictional nature of the review contemplated by way of habeas corpus. I do not find this argument persuasive since rendering a conviction and sentence under the wrong provisions of the Criminal Code  seems to me clearly to constitute jurisdictional error. Certainly the defect is apparent on the face of the warrant of committal and an appreciation of the error does not require a re‑trial on the merits or an evaluation of the evidence presented at trial. Even before this Court's decision in Miller, where a warrant of committal was defective on it face, habeas corpus could "lie to put an end to what is a manifestly unlawful detention": see Ex parte Risby (1975), 24 C.C.C. (2d) 211 (B.C.S.C.), at p. 215.

 

64.                     There is no doubt that considerable uncertainty has clouded the scope of review open to a court on an application for habeas corpus (see Sharpe, op. cit., c. 3; Létourneau, op. cit., cc. 2 and 6) and it is understandable that courts have, in general, not bound themselves to limited categories or definitions of jurisdictional review when the liberty of the subject was at stake. I think that this trend should be affirmed where habeas corpus is sought as a Charter  remedy and that distinctions which have become uncertain, technical, artificial and, most importantly, non‑purposive should be rejected. One example of an approach which integrates the traditional nature of the prerogative writs with their new role as Charter  remedies is provided by Sutherland J. in Re Arrigo and The Queen (1986), 29 C.C.C. (3d) 77 (Ont. H.C.), at p. 84, and I would respectfully adopt the view he expresses:

 

The application could have been brought expressly pursuant to s. 24(1)  of the Charter  without any reference to certiorari or to prohibition as such. It is convenient in situations like these for the applications to be made and discussed, and for orders to be made, in the terms and language of the traditional remedies and means of review, but a right of application conferred by s. 24(1)  of the Charter  is not to be cut down by limitations placed upon the exercise of discretionary powers or prerogative remedies in non‑Charter  situations. In my opinion, the question of whether a court to which an application is made under the Charter  ought to entertain the application where the application arises as a result of a ruling made in the course of proceedings in another court is better dealt with under the criteria considered in Krakowski than by questioning whether or not the first court has lost jurisdiction. Under the criteria applied in Krakowski applications having the effect of interrupting proceedings in the lower court will be strongly discouraged out of regard for the orderly administration of justice, but the door will not be wholly closed to applications made in the midst of other proceedings, nor will the vindication of Charter  rights be subjected to limitations not developed with Charter  rights in mind.

 

65.                     My colleague Lamer J. has outlined in Mills (pp. 894‑905) an approach to the procedure for granting Charter  remedies which is both flexible and functional and I believe in accord with the general approach the courts have taken in administering the Charter .

 

66.                     A purposive approach should, in my view, be applied to the administration of Charter  remedies as well as to the interpretation of Charter  rights and, in particular, should be adopted when habeas corpus is the requested remedy since that remedy has traditionally been used and is admirably suited to the protection of the citizen's fundamental right to liberty and the right not to be deprived of it except in accordance with the principles of fundamental justice. The superior courts in Canada have, I believe, with the advent of the Charter  and in accordance with the sentiments expressed in the habeas corpus trilogy of Miller, Cardinal and Morin, displayed both creativity and flexibility in adapting the traditional remedy of habeas corpus to its new role. I find instructive the following innovative uses of habeas corpus as a Charter  remedy: see Re Cadeddu and The Queen (1982), 4 C.C.C. (3d) 97 (Ont. H.C.); Swan v. Attorney General of British Columbia (1983), 35 C.R. (3d) 135 (B.C.S.C.); Lussa v. Health Science Centre (1983), 9 C.R.R. 350 (Man. Q.B.); MacAllister v. Director of Centre de Reception (1984), 40 C.R. (3d) 121 (Que. S.C.); Re Marshall and The Queen (1984), 13 C.C.C. (3d) 73 (Ont. H.C.); Re Jenkins (1984), 8 C.R.R. 142 (P.E.I.S.C. in banco); Jollimore v. Attorney‑General of Nova Scotia (1986), 24 C.R.R. 28 (N.S.S.C.); Balian v. Regional Transfer Board (1988), 62 C.R. (3d) 258 (Ont. H.C.) I agree with the general proposition reflected in these cases that Charter  relief should not be denied or "displaced by overly rigid rules": see Swan, at p. 148.

 

67.                     In a case heavily relied upon by the respondent, Re Hass and The Queen (1978), 40 C.C.C. (2d) 202 (Ont. H.C.), Morden J. held on an application for habeas corpus that he could not remedy a sentence that was in one respect illegal. Although Morden J. was prepared, correctly in my view, to issue habeas corpus to redress an illegal deprivation of liberty even when it would not result in the applicant's outright release (pp. 210‑11), he dismissed the application because of the rule that (at p. 208):

 

...resort cannot be had to habeas corpus to correct or revise an alleged error in a sentence imposed by a Court of competent jurisdiction. In such case, the proper remedy is to appeal.

 

This is no doubt correct as a general guide to when habeas corpus is an appropriate remedy. With respect, however, the distinction relied on in Hass between an illegal sentence which could not be remedied by way of habeas corpus and an unlawful execution of a valid sentence which could be so remedied seems to be technical and non‑purposive especially when, as is the case here, the appeal process may not be able to vindicate an applicant's Charter  interest in having the legality of his or her deprivation of liberty reviewed. Under section 24(1) of the Charter  courts should not allow habeas corpus applications to be used to circumvent the appropriate appeal process, but neither should they bind themselves by overly rigid rules about the availability of habeas corpus which may have the effect of denying applicants access to courts to obtain Charter  relief.

 

68.                     A purposive approach to Charter  remedies is also helpful in assessing the merits of the respondent's submissions that habeas corpus cannot issue in this case because it involves a review of decisions of superior courts of another province and that it is further barred because it will not necessarily secure the complete liberty of the applicant. In entertaining these objections courts should never lose sight of the underlying liberty interest of the subject which is at stake. As my colleague La Forest J. noted in Lyons, supra, at p. 354:

 

        In the context of s. 7 , it seems to me that the nature and quality of the procedural protections to be accorded the individual cannot depend on sterile logic or formalistic classifications of the type of proceeding in issue. Rather, the focus must be on the functional nature of the proceeding and on its potential impact on the liberty of the individual.

 

To deny the appellant Charter  relief because she received her criminal trial and sentencing under the wrong Criminal Code  provisions in a superior court of criminal jurisdiction and not in an inferior court seems to me completely unacceptable given the interests that are at stake. As Professor Sharpe explains in his treatise, op. cit., at pp. 144‑45, illegalities in a sentence given by a superior court should not escape review by way of habeas corpus because:

 

...from a technical point of view, there is said to be an exception to the inviolability of superior court orders: where the process of the court itself demonstrates vitiating error, it is subject to attack. If, for example, a court sentences someone to fourteen years where the maximum penalty for the offence is seven years, the error of law must necessarily be apparent to the court on habeas corpus, and there is no question of going behind the record. This is an error relating to the imprisonment itself, not something which invalidates the proceedings behind the sentence, and for this reason, would seem appropriately subject to review on habeas corpus.

 

        From the point of view of policy, it is difficult to imagine what interest is served by denying a remedy in such a case. While there may be good reason to foster an element of finality in the criminal law, and therefore, to protect convictions from collateral attack, it seems pointless to protect unlawful sentences. If the time for appeal has gone by, the law should provide another remedy. In some cases it is suggested that only an appeal to executive power to pardon is appropriate, but it is submitted that where there is an unlawful deprivation of liberty, the matter should not be left to anyone's discretion.

 

As Professor Sharpe notes, if the time for appeal of an illegal sentence has gone by, "the law should provide another remedy". Similar sentiments were expressed by Cartwright C.J.C. in Sanders v. The Queen, supra, at p. 126.

 

69.                     The argument that habeas corpus should not lie in this case because its issuance would not secure the complete liberty of the applicant should also be rejected on both doctrinal and policy grounds. In the 1985 habeas corpus trilogy of Miller, Cardinal and Morin and later in Dumas v. Leclerc Institute this Court expanded habeas corpus to cover three different deprivations of liberty in a prison setting. One of these is a continuation of the deprivation of liberty that has become unlawful and that is what we have here. The period of extended parole ineligibility currently being experienced by the appellant denies the appellant the opportunity to seek supervised release for 13 more years. In Miller this Court recognized the need to adapt the important remedy of habeas corpus "to the modern realities of confinement in a prison setting" (p. 641). Inmates and, it appears, many judges consider eligibility for early release by means of parole an important, even crucial, aspect of confinement in a prison: see Sentencing Reform: A Canadian Approach (1987), c. 10.

 

70.                     I believe that the effects of a deprivation of liberty or a continuation of a particular form of deprivation of liberty should be reviewed from a qualitative perspective. When this is done it becomes clear that the effects of the parole ineligibility provision on the continuing imprisonment of the appellant are quite considerable. With the ineligibility provision intact the appellant has no hope of being considered for parole for the next 13 years. However, if the provision is removed the appellant, although still confined and subject to a sentence of life imprisonment, will be able to apply for parole right away and, if unsuccessful, to repeat such application from time to time. The difference in the quality of her incarceration in these two situations is readily apparent.

 

71.                     I have no difficulty in concluding that the continuation of the 25‑year period of parole ineligibility deprives the appellant of an important residual liberty interest which is cognizable under s. 7  and which may be appropriately remedied by way of habeas corpus if found to be unlawful.

 

72.                     As did my colleague Le Dain J. in Miller at pp. 638‑39, I have found the American authorities helpful in identifying the kinds of liberty interest served by the habeas corpus remedy. I agree that habeas corpus, the `Great Writ of Liberty', is:

 

"...not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose‑‑the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty" [Jones v. Cunningham, 371 U.S. 236 (1962), at p. 243].

 

In the Jones case habeas corpus was held to cover the condition of deprived liberty an applicant on parole was placed under by the state. Lamer J. in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, held at p. 515 that the restrictions of liberty inherent in probation orders were protected under s. 7  of the Charter . It would be anomalous if the remedy of habeas corpus did not evolve so as to be available to redress illegal deprivations of constitutionally protected liberty interests. This Court's previous decision in Masella v. Langlais, [1955] S.C.R. 263, is suspect to the extent that it denies habeas corpus as a remedy to vindicate the rights protected under s. 7  of the Charter .

 

73.                     In Preiser v. Rodriguez, 411 U.S. 475 (1973), the United States Supreme Court held that habeas corpus was available and appropriate to review the deprivation of liberty inherent in the revocation of a prisoner's good time credit. Stewart J. first summarized the development of the remedy of habeas corpus in American jurisprudence at p. 485 as follows:

 

        The original view of a habeas corpus attack upon detention under a judicial order was a limited one. The relevant inquiry was confined to determining simply whether or not the committing court had been possessed of jurisdiction . . . . But, over the years, the writ of habeas corpus evolved as a remedy available to effect discharge from any confinement contrary to the Constitution or fundamental law, even though imposed pursuant to conviction by a court of competent jurisdiction.

 

Turning to the case at hand, Stewart J. concluded that habeas corpus would lie (at pp. 487‑88):

 

        Even if the restoration of the respondents' credits would not have resulted in their immediate release, but only in shortening the length of their actual confinement in prison, habeas corpus would have been their appropriate remedy . . . . their suits would still have been within the core of habeas corpus in attacking the very duration of their physical confinement itself.

 

74.                     A purposive and expansive approach to the remedy of habeas corpus leads me to conclude that the writ is appropriately used to review the legality of the significant deprivation of liberty inherent in the operation of the parole ineligibility provision in this case. This review can take place without either circumventing the appeal process or becoming de facto an appeal on the merits. The role of habeas corpus as a remedy under s. 24(1)  of the Charter  reinforces the policy of flexibly and generously adapting the writ in order that it continue to protect liberty interests now constitutionally protected under the Charter .

 

D) Section 7  of the Charter 

 

75.                     Section 7  of the Charter  protects the appellant's right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. As discussed above, the current operation of the condition in the appellant's sentence that she not be eligible for parole for 25 years infringes her residual liberty interest. The key question is then whether she is being deprived of this liberty interest in accordance with the principles of fundamental justice?

 

76.                     The principles of fundamental justice are to be found "in the basic tenets of our legal system": Re B.C. Motor Vehicle Act, at p. 503. It is fundamental to any legal system which recognizes "the rule of law" (see the Preamble to the Charter ) that an accused must be tried and punished under the law in force at the time the offence is committed. This did not happen in this case.

 

77.                     The accused was prejudiced by not being convicted and sentenced in accordance with the law in force at the time of the commission of her offence. Under the new Criminal Code  provisions which were wrongly applied to her the Crown bore a lesser burden of proof then under the provisions which were properly applicable. It had to prove only that the appellant was a party to the offence under s. 21  of the Criminal Code  as opposed to having to prove under the properly applicable provisions that she by her "own act caused or assisted in causing the death of a police officer". The appellant may also have been prejudiced by the application of the wrong punishment provisions. Under the old law the appellant would have had an opportunity to receive a period of parole ineligibility of a minimum of 10 years and a maximum of 20 years as opposed to the mandatory 25‑year period of ineligibility she received under the new law. Without embarking on the inevitably speculative exercise of considering what might have happened to the appellant had she been tried and punished under the properly applicable Criminal Code  provisions, I am able to conclude from a comparison of the relevant legislation that the appellant prima facie was prejudiced by not being tried and punished under the proper law. I invoke in support of this conclusion the fact that it is due to the Crown's error that we cannot know for sure what would have happened to the appellant had she been tried under the proper law. She should accordingly be given the benefit of any doubt.

 

78.                     At trial the appellant's claims under s. 11 (i) of the Charter  were rejected, in part because the clause was interpreted as applying only to changes in the punishment for the same offence and this situation was characterized as involving a change in both the offence and the punishment. I am not persuaded at this point that such a restrictive reading of s. 11 (i) is appropriate but it is not necessary to reach a definitive conclusion on this in order to dispose of this appeal and I refrain from doing so.

 

E) Entitlement to the Relief Claimed

 

79.                     The respondent submits that the appellant is not entitled to a declaration of eligibility for parole because, even if she had been tried under the proper law, the possibility exists that she might have been sentenced to death or have had the sentencing judge order that she not be eligible for parole for a period of between 10 and 20 years. Admittedly, these are theoretical possibilities. It would not, however, be appropriate for this Court on an appeal of a habeas corpus application to try to speculate from the evidence at trial what the verdict might have been had the appellant been tried under the properly applicable provisions of the Criminal Code . Given their submissions on the scope of habeas corpus review, I find it ironic that the respondent and one of the interveners, the Attorney General for Alberta, would invite us to do so.

 

80.                     The real issue, it seems to me, is the one already mentioned, namely whether the Crown can take advantage of the uncertainty created by its own failure to give the appellant a proper trial in the first instance. I do not think it can. It is quite contrary to our legal traditions and to our obligations under the Charter  to hold, as did the trial judge, that the appellant should only receive a remedy for the Crown's error if she proves that it was "ineluctable" that she would only have received a sentence of life imprisonment with eligibility for parole after 10 years.

 

81.                     One issue remains, namely the jurisdiction of the court to issue a declaration of parole eligibility in aid of its habeas corpus jurisdiction. Declaratory relief has been recognized by this Court as an effective and flexible remedy for the settlement of real disputes: see Solosky v. The Queen, [1980] 1 S.C.R. 821, at pp. 830‑33. Moreover, this Court, having assumed jurisdiction over the subject matter and the person on this appeal from a denial of habeas corpus, can exercise its broad discretion under s. 24(1)  of the Charter  to order any remedy within its jurisdiction which it considers appropriate and just in the circumstances. Given the prejudice already suffered by the appellant it seems appropriate and just that she be declared eligible for parole forthwith. The Parole Board is, however, the final arbiter of whether and when she should be released on parole and this Court has nothing to say on that subject.

 

V. Disposition

 

82.                     I would allow the appeal and declare the appellant eligible for parole as from the date of release of this judgment

 

83.              Appeal allowed, Dickson C.J. and Beetz J. dissenting.

 

        Solicitors for the appellant: McMaster Meighen, Montréal.

 

        Solicitor for the respondent: The Deputy Attorney General of Canada, Ottawa.

 

        Solicitor for the intervener the Attorney General for Alberta: Manfred DeLong, Calgary.

 

        Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.

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