parole review under the system in place at the time of his sentencing. With the coming into force of the Abolition of Early
Parole Act, S.C. 2011, c. 11, accelerated parole review was abolished. Section 10(1) of the Abolition of Early Parole Act made the
abolition of accelerated parole review apply to offenders already
serving their sentences which delayed Mr. Whaling’s eligibility
for day parole eligibility for day parole after the offender had
served one-sixth of the sentence or six months was replaced by
eligibility six months before the full parole eligibility date.
[184] The Supreme Court held that this delay in day-parole
eligibility infringed the right guaranteed by s. 11(h) of the
Charter not to be “punished . . . again” for an offence and that the
infringement was not saved under s. 1.
[185] Sections 31-37 have been in effect since 1992. This application does not concern the retrospective application of legislation. This application does not present a fact situation in which
something happened after sentencing which had the effect of
prolonging it. This application does not present a situation
where the duration of an inmate’s sentence is affected or where
there has been some retrospective frustration of a reasonable
expectation of liberty.
[186] In terms of an inmate’s reasonable expectations, a person who is being sentenced and who is in danger inside a penitentiary because, for example, he or she is an informant,
a Crown witness or otherwise incompatible with the other
inmates in the general prison population must reasonably be
expected to know that there is a likelihood of placement in
administrative segregation.
[187] Administrative segregation is not a sanction available
under the Criminal Code and it is not imposed for the purpose
and principles of sentencing. It is imposed for the reasons set out
in s. 31(1) of the Corrections and Conditional Release Act.
[188] At the time of sentencing, an offender knows that you
can go to general population or you can be put in segregation.
While judges typically concern themselves with the length of the
sentence, it would be open to a person being sentenced to suggest that a lower sentence is appropriate due to the likelihood
that he or she will spend a significant portion of their time in
custody in segregation for their own protection.
[189] Finally, prison disciplinary proceedings have been characterized as non-criminal. See Vukelich v. Mission Institution,
[2005] B.C.J. No. 252, 2005 BCCA 75, 38 B.C.L.R. (4th) 132, at
para. 37. This strongly suggests that non-disciplinary prison
proceedings should also be characterized as non-criminal.
[190] Accordingly, I am satisfied that s. 11(h) has no application.
