Fairness for Victims Act faces major constitutional problem

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As parliamentary officials scramble to fix an error-riddled parole bill, a bigger challenge looms: The bill, known as the Fairness for Victims Act, has a glaring constitutional problem.

That problem was identified by the Supreme Court of Canada as recently as March, in a separate law on parole. The issue is retroactivity – adding a new punishment to people already convicted and sentenced. In its ruling in R. v. Whaling, the Supreme Court struck down the Abolition of Early Parole Act because it added extra punishment to current prisoners. A similar problem arises in the Fairness for Victims Act, legal observers say.

Yet the House of Commons gave the Fairness for Victims Act unanimous approval on June 4 without a word spoken about the obvious link to the previous Supreme Court ruling.

The constitutional issue at the heart of the bill is another sign of the scant scrutiny that bills initiated by individual MPs tend to receive, compared to government bills. The legislation, also called Bill C-479, was sponsored by Conservative MP David Sweet of Ontario. In June, the House of Commons sent the wrong version – lacking four amendments – to the Senate for debate and final approval.

The new law would extend the wait for parole after a rejection to up to five years; the rule now is every two years. Mr. Sweet's version did not spell out whether it applied to current prisoners or just new ones. Then, Roxanne James, the parliamentary secretary to Public Safety Minister Steven Blaney, proposed an amendment at a Commons committee that would make it applicable to existing prisoners. They would still have a two-year wait if they fail their first review. But if they fail their second review, they would have up to a five-year wait.

Ms. James told the committee that unless they made the bill apply to current prisoners, "we wouldn't see the fruits of this particular bill until many years into the future."

Two weeks after the committee approved her changes to the bill, the Supreme Court ruled in R. v. Whaling on the question of whether longer waiting times for parole constituted "punishment." In 2011, the government had ended fast access to day parole for non-violent, first-time federal offenders. The court was unanimous that the Abolition of Early Parole Act could not stand because it applied extra punishment to current prisoners.

Eric Purtzki, a Vancouver lawyer who represented Christopher Whaling in that case, explained in an interview why the Supreme Court ruling may be fatal for the new law, the Fairness for Victims Act. "As a result of the decision in Whaling, a measure will amount to 'punishment' under section 11(h) of the Charter if there is a substantial risk of additional incarceration," he said. "There is, in my view, a strong argument that delaying the ability to apply for parole after it has been refused (in the manner contemplated by this legislation) falls within this definition."

Benjamin Berger, who specializes in criminal law at Osgoode Hall Law School in Toronto, agreed that the Fairness for Victims Act could be struck down by the courts. "There's a real possibility this legislation is inconsistent with what the court articulated in Whaling."

A spokesman for Mr. Blaney maintained that the bill's constitutionality had been reviewed. "The Fairness for Victims Act was deemed votable by the subcommittee on private members business [part of a House of Commons procedural committee]. One criteria they examine is compliance with the Charter of Rights and Freedoms," Jean-Christophe de Le Rue said in an e-mail.

But the subcommittee's website shows that the issue came up long before the R. v. Whaling decision of the Supreme Court. In fact, the subcommittee's review happened more than a year ago – on March 21, 2013. And the discussion lasted about 10 seconds. "This bill is not outside federal jurisdiction, it does not clearly violate the Constitution, and there is no similar bill on the order paper," government official Michel Bédard said, according to a transcript. The only response is, "Some hon. members: agreed."

Wayne Easter, who was a member of the Commons committee that reviewed Bill C-479, said in an interview that he had thought the bill applied to current prisoners only if they committed a new offence. After looking at the transcript of Ms. James's remarks, he realized he was wrong.

"When you're dealing with amendments like that, you often just get them the day of the meeting. It's a problem, especially in justice issues: It's legislation on the fly."

Although private members' bills are not reviewed by Justice Department lawyers for constitutionality, Ms. James's amendment would have been reviewed, because it was a government motion, according to Mary Campbell, who retired from a senior post in the Public Safety Department last year.

"We know that it was developed and assessed by Public Safety officials and Justice constitutional experts," she said in an interview. "That doesn't mean that they rated it as constitutional – even an assessment of 'manifestly unconstitutional' would not have prevented the government from putting it forward."

Neither Mr. Sweet nor Ms. James responded to The Globe's questions, despite multiple attempts to contact them.