A North Vancouver man sentenced to four and a half years in jail for weapons charges has won a constitutional challenge of a Conservative law to abolish early parole.
In a ruling that struck down the retroactive portion of the law, B.C. Supreme Court Justice Heather Holmes agreed with Christopher John Whaling and two other inmates that taking early parole away from people who had already been sentenced violated their charter rights by punishing them again for the same crime.
The judge ruled that the Conservative law scrapping early parole for people who were sentenced before the law changed amounted to "more severe treatment during their sentences."
At the time he launched his constitutional challenge to the law, Whaling, 42, was serving a sentence at the minimum security Ferndale Institution, after being convicted of three gun offences in September 2010.
Whaling, who used to be a verifier for the Canadian Firearms Registry, was nabbed five years ago as part of a police investigation into a large-scale gun trafficking ring in the Lower Mainland. Police watched as Whaling met a 22-year-old Langley man in a recreation centre parking lot and handed him three automatic machine pistols.
When police later searched Whaling's North Vancouver home on East Keith Road under warrant, they found a large quantity of unregistered firearms, including two 45-calibre handguns - one of which was loaded - and a MAC-10 automatic pistol, as well as machine guns in various stages of completion.
Several of the guns seized lacked any serial numbers or manufacturer's markings. Such guns, which are essentially untraceable, cannot be legally registered.
Authorities said the weapons appeared to have been put together from kits, rather than manufactured in regular factories, and were likely going to be sold for use in criminal activity.
Whaling also had several guns that he had registered to a fake address on Bowen Island. One of those, similar to an AK-47, had been converted into a fully automatic weapon and was eventually found in a box in the woods near Squamish.
In September 2010, B.C. Supreme Court Justice Brenda Brown sentenced Whaling to serve four and a half years in jail after giving him credit for time already spent in custody.
Because he was a first-time federal offender serving a sentence for non-violent offences, Whaling was entitled to apply for accelerated day parole, which allows offenders to be released on parole after just one-sixth of their sentence. Under those rules, Whaling could have been paroled last June.
But on March 28 last year, the federal government's new law abolishing accelerated parole came into effect. Whaling got a letter a few days later, saying he was no longer eligible for the program because of the change. On Sept. 29, Whaling became eligible to apply for regular day parole. A parole board panel denied that on Oct. 11, on the grounds that Whaling continued to deny doing anything illegal and that he was at risk of engaging in similar gun sales to criminals in the future.
A month later, Whaling was let out of jail on bail pending an appeal of his conviction.
In handing down her decision June 26, Holmes essentially ruled the new law scrapping early parole doesn't apply to anyone sentenced before that law came into effect.
Under the old rules, offenders convicted of nonviolent crimes could apply for release after serving only one-sixth of their sentence. As long as the parole board didn't think they were likely to commit a violent crime, it had to release them.
Under the new rules, no offender is eligible for parole until they have served at least a third of their sentence. Parole is harder to get, because parole boards must be convinced the convict is unlikely to commit any further crimes - not just violent ones - and have discretion to deny parole.
All parole applications must include a formal hearing.
