T-228-85
Willis Elvis James Maxie (Applicant)
v.
National Parole Board and Correctional Service
of Canada (Respondents)
Trial Division, Muldoon J.—Saskatoon, April 12;
Ottawa, June 4, 1985.
Parole — Applicant committing offences of break, enter and
theft and assaulting peace officer while on mandatory supervi
sion — Convicted and sentenced to consecutive term — Man
datory supervision revoked — Neither Board nor s. 20 of
Parole Act contravening Charter s. 9 right not to be arbitrarily
detained — No breach of procedural or substantive fairness
contrary to s. 7 of Charter — Limits imposed on qualified
liberty demonstrably justified in free and democratic society
— Parole Act, R.S.C. 1970, c. P-2, s. 20 (as am. by S.C.
1976-77, c. 53, s. 30) — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 7, 9.
Constitutional law — Charter of Rights — Detention or
imprisonment — National Parole Board revoking mandatory
supervision while applicant in custody as consequence of new
consecutive sentence — S. 20 of Parole Act providing for
recommittal upon revocation of parole, including mandatory
supervision, not inconsistent with right not to be arbitrarily
detained or imprisoned guaranteed by s. 9 of Charter —
Revocation consequence of timing and nature of offence for
which applicant solely responsible — Board not imposing
capricious, unreasonable, unjustifiable incarceration — Policy
of legislation examined for lack of rational basis pursuant to
R. v. Konechny, 11984] 2 W.W.R. 481 (B.C.C.A.) — Standard
of proportionality applied to determine arbitrariness in statu
tory provision providing for incarceration — Consequence of
revocation of parole for breach of condition proportional to
misdeed, i.e., serving out full, fit sentence — Purposes of
legislation being rehabilitation, control and deterrence are
rational, proportional and not arbitrary — Canadian Charter
of Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 9
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), s. 52 — Parole Act, R.S.C. 1970, c. P-2, s. 20 (as
am. by S.C. 1976-77, c. 53, s. 30).
Constitutional law — Charter of Rights — Life, liberty and
security of person — S. 7 of Charter not violated by revocation
of mandatory supervision while in custody resulting from new
consecutive sentence, upon both procedural and substantive
application of s. 7 — No evidence of denial of procedural
rights to fundamental justice — Charter not requiring Court
to override Parliament's decision to accord conditionally revo
cable benefit of mandatory supervision on inmates who breach
terms and conditions — No Act of Parliament requiring
applicant to serve full term — Applicant responsible for
revocation of mandatory supervision — Retention of Board's
discretion in s. 20(3) to recredit remission supporting substan
tive fairness — Limits imposed upon applicant's qualified
liberty demonstrably justified in free and democratic society
— Canadian Charter of Rights and Freedoms, being Part 1 of
the Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), ss. 7, 24 — Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 52 —
Parole Act, R.S.C. 1970, c. P-2, ss. 15(2), 20 (as am. by S.C.
1976-77, c. 53, s. 30) — Parole Regulations, SOR/78-428, s.
20.1 (as am. by SOR/81-318, s. 1).
For a summary of the facts of this case, see the Editor's
Note.
Held, the application should be dismissed.
The applicant's right not to be arbitrarily detained or impris
oned, guaranteed in section 9 of the Charter, has not been
infringed by the revocation of his mandatory supervision. The
first ground of complaint is that the number of days of remis
sion lost as a consequence of the revocation in no way reflected
the relative gravity of any conduct relied on as a basis for
revocation. The elements involved are the moment in time at
which the applicant chose to commit any further transgression,
and its gravity. The best that can be said for this submission is
that the elements of the applicant's plight were entirely in his
own hands. The number of days lost is a function of the times
during mandatory supervision at which the applicant perpetrat
ed the offences of break, enter and theft and assault on a peace
officer. The revocation is, according to the Board's lawful
exercise of its delegated discretion, a consequence, of the
gravity of those intrusive, thieving and violent offences. It is
presumed that the Board directed its mind to the appropriate
ness of the consequences. The Board did not visit upon the
applicant any capricious, unreasonable, unjustifiable or despot
ic incarceration. The applicant chose the occasions and perpe
trated the misdeeds by himself. The applicant was not arbitrari
ly detained or imprisoned. The revocation was imposed because
he committed three crimes for which he was convicted and
sentenced.
The statutory provisions themselves could run afoul of sec
tion 9 of the Charter. In Belliveau v. The Queen, [1984] 2 F.C.
384; 10 D.L.R. (4th) 293; 13 C.C.C. (3d) 138 (T.D.), Dubé J.
said that the proscription against arbitrary detention in section
9 is against detention without specific authorization under
existing law or without reference to an adequate determining
principle. Furthermore, the policy of a statute may be struck
down under section 52 of the Constitution Act, 1982 if it is
without rational basis: R. v. Konechny, [1984] 2 W.W.R. 481
(B.C.C.A.). In examining the policy of the Parole Act, the
standard of proportionality was applied to determine the arbi
trariness in a statutory provision for incarceration. Mandatory
supervision is a statutory right accorded, wholly within Parlia
ment's legislative jurisdiction over the criminal law, in deroga
tion of the sentence of imprisonment imposed by a court of
competent jurisdiction. It must be accepted that the sentence
pronounced is fit. Where Parliament enacts that the Board may
revoke mandatory supervision when a breach of its term or
condition occurs, the legislation is endowed with a rational
purpose whose consequences are wholly proportional to the
inmate's misdeed, that is, serving out the fit sentence judicially
pronounced. The legislative purpose is "to gradually rehabili
tate the prisoner, to control his behaviour and to deter him
from committing new crimes with the threat of revocation".
That policy is rational, proportional and is not one of arbitrary
imprisonment.
Section 7 of the Charter was not violated by the revocation of
the applicant's mandatory supervision, upon both a procedural
and substantive application of section 7. Section 7 of the
Charter guarantees 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. Liberty
and security of the person are qualified to the extent that an
individual may be deprived of such right in accordance with the
principles of fundamental justice. Section 20 of the Parole Act
does not contravene section 7. There is no evidence that the
applicant was denied any procedural rights to fundamental
justice. There is nothing contrary to fundamental justice in the
Board's acting upon the breaches of the paramount condition of
mandatory supervision which inhere in the commission of those
offences. The applicant's criminal conduct constituted serious
breaches of a term or condition of mandatory supervision.
In Latham v. Solicitor General of Canada, [1984] 2 F.C.
734; 9 D.L.R. (4th) 393 (T.D.), Strayer J. indicated that
section 7 was intended to guarantee only procedural fairness.
However, in obiter dictum in Howard v. Stony Mountain
Institution, [1984] 2 F.C. 642 (C.A.), Thurlow C.J. did not
rule out the possibility that section 7 may refer to substantive
provisions as well. In Singh et al. v. Minister of Employment
and Immigration, [1985] 1 S.C.R. 177, Wilson J. stated that if
the appellants were to succeed, it would be on the basis that the
Charter required the Court to override Parliament's decision to
exclude the kind of procedural fairness sought by the appel
lants. The appellants succeeded despite an evenly divided dif-
ference of opinion as to whether to apply paragraph 2(e) of the
Canadian Bill of Rights or section 7 of the Charter.
The Charter does not require the Court to override Parlia
ment's decision to accord the conditionally revocable benefit of
mandatory supervision on inmates who breach its terms and
conditions. No Act of Parliament placed the applicant in
double jeopardy. The dashing of the inmate's expectation of
avoiding the full term of imprisonment is a consequence for
which he has only himself to reproach.
Subsection 20(3) gives the Board the discretion to recredit
remission in appropriate cases. It is not essential for the stat
ute's surviving any substantive test under section 7, but it
imports a certain momentum to surmounting the hurdle with
room to spare.
The limits prescribed by the Parole Act upon the applicant's
qualified liberty are demonstrably justified in a free and demo
cratic society.
CASES JUDICIALLY CONSIDERED
APPLIED:
Belliveau v. The Queen, [1984] 2 F.C. 384; 10 D.L.R.
(4th) 293; 13 C.C.C. (3d) 138 (T.D.); R. v. Konechny,
[1984] 2 W.W.R. 481 (B.C.C.A.); Singh et al. v. Minis
ter of Employment and Immigration, [1985] 1 S.C.R.
177; Sango v. National Parole Board, [1984] 1 F.C. 183
(T.D.).
CONSIDERED:
Latham v. Solicitor General of Canada, [1984] 2 F.C.
734; 9 D.L.R. (4th) 393 (T.D.); Howard v. Stony Moun
tain Institution, [1984] 2 F.C. 642 (C.A.).
REFERRED TO:
Operation Dismantle Inc. et al. v. The Queen et al.,
[1985] 1 S.C.R. 441.
COUNSEL:
Lucinda Vandervort for applicant.
Mark Kindrachuk for respondents.
SOLICITORS:
College of Law, University of Saskatchewan,
Saskatoon, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
MULDOON J.:
EDITOR'S NOTE
This judgment was selected for publication for
its discussion of the issues as to whether rights
guaranteed by sections 7 and 9 of the Charter
had been contravened by the application of the
Parole Act. The reasons for order on those
issues, which take up 16 1 / 2 pages of a 29-page
judgment, are reported in their entirety. The Editor
has decided to prepare an abridgment covering
the balance of His Lordship's reasons for order
herein.
A convict seeks certiorari to quash a National
Parole Board order revoking mandatory supervi
sion and mandamus for the applicant's immediate
release or to recalculate his date of eligibility for
release under mandatory supervision or to
recredit remission lost on revocation under the
Parole Act, subsection 20(2).
It was argued that the purported revocation of
mandatory supervision, while the applicant was in
custody due to a new consecutive sentence
imposed when mandatory supervision was sus
pended, was contrary to law. The argument was
that since the consecutive sentence alone was
the reason for detention on the date of the pur
ported revocation, mandatory supervision was
rendered inoperative by the consecutive sentence
(which was longer than the remnant of the previ
ous sentence) and the automatic merger, under
the Parole Act, section 14, of the new and exist
ing sentences. In the alternative, the applicant
argued that since mandatory supervision was per
manently suspended on imposition of the con
secutive sentence (Parole Act, subsection 15(4)),
the revocation order was ultra vires and in excess
of the Board's jurisdiction. It was further argued
that Charter section 9 had been contravened by
the arbitrary method of calculating the applicant's
mandatory supervision eligibility date. Finally,
Charter section 7 had been violated in failing to
interpret and apply an ambiguous statutory provi
sion in a liberal manner favouring the prisoner.
His Lordship reviewed the relevant provisions
of the Parole Act and concluded that the suspen
sion of mandatory supervision does not immunize
it against revocation. Reference was made to the
problem of computing imprisonment duration.
Muldoon J. called for law reform to resolve this
problem: "Although the difficulties of this arcane
matter will probably never mobilize public opinion,
the complex process of computation nevertheless
cries out for reform. The apparently clear words
of the Act mask the problems of computation of
time served and to be served, even though the
National Parole Board's powers are adequately
expressed".
On the plain words of the statute, it had to be
concluded that the applicant's mandatory super
vision could be and was effectively revoked. The
revocation was not ultra vires. The case of Sango
v. National Parole Board, [1984] 1 F.C. 183 (T.D.)
was conclusive.
After dealing with the Charter issues (see full
text report of reasons for judgment), His Lordship
reviewed the calculation of the applicant's sen
tence and found that section 137 of the Criminal
Code had not been complied with. But the Federal
Court of Canada was not a court of competent
jurisdiction to do anything about that. While it
could review the manner in which the Chief of
Sentence Administration, a departmental official,
performed his tasks, the Court could neither
quash a sentence for being unlawfully at large nor
could it require the Board to recredit lost remis
sion. That was because it was not the Board
which had passed the sentence. His Lordship
noted in passing that if the Board were to recredit
the applicant's remission in view of the mitigating
circumstances, it was unlikely that anyone would
object.
Considering the Court's lack of jurisdiction to
quash court-imposed sentences, the motion was
dismissed but without costs.
The applicant asks the Court to find the effect
of section 20 of the Parole Act [R.S.C. 1970, c.
P-2 (as am. by S.C. 1976-77, c. 53, s. 30)], to be
inconsistent with the protection conferred on him
by sections 7 and 9 of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)] the effect of which, he alleges,
is to suspend the operation of section 20 of the
Parole Act in his case, and to recredit him with the
earned remission he automatically lost under sec
tion 20 as a consequence of the revocation of
mandatory supervision.
In the submission presented on the applicant's
behalf, section 9 of the Charter is considered
before section 7 is considered. Section 9 briefly,
but powerfully and elegantly, provides:
9. Everyone has the right not to be arbitrarily detained or
imprisoned.
Here are the applicant's submissions on the
effect of section 9 of the Charter.
19. The effect of Section 20 of the Parole Act is arbitrary in his
case in that: the number of days earned remission that he lost
was a consequence solely of the remission credits that he had
when released on Mandatory Supervision. It in no way reflect
ed the relative gravity of any conduct relied on as a basis for
revocation. Revocation on any ground from the most minor to
the most grave would have resulted in loss of all earned
remission credits.
20. There is no evidence that the National Parole Board in fact
directed its mind under Section 20(3) to whether recrediting
some or all of the lost remission would be appropriate in the
circumstances of this case.
21. The Applicant asserts that although Section 20(3) would
permit, in that it does not preclude or bar, an individual
decision based on clear criteria and procedures to be made with
respect to the amount of earned remission, if any, with which
he should be recredited, he has no reason to believe that such a
decision was made in his case. The Parole Act itself specifies
neither criteria nor procedures to govern this decision. The
Policy and Procedures Manual of the National Parole Board at
Section 106-4, paragraph 4.2, effective date 21-06-1982, states
that remission will be recredited only in exceptional cases and
no detailed guidelines are spelled out. Thus in all but the
extraordinary case, once the decision to revoke is made, regard
less of the circumstances, loss of all remission is the conse
quence. Procedures used in recrediting remission appear in
Section 106-25. The provisions in effect when the Applicant's
Mandatory Supervision was revoked were enacted effective
June 21, 1982. Those have been revised effective March 24,
1983. The criteria and procedures specified, if they were in fact
utilized, are not sufficiently detailed and precise or otherwise
adequate to ensure that the decision under Section 20(3) will
not be capricious, unprincipled, subjective or taken on the basis
of improper considerations. Hence the requirements of Section
9 of the Charter were not met.
22. As explained in paragraphs 20 and 21 of the Applicant's
Affidavit, if he had committed the offences for which he
received his most recent convictions, even only one day earlier
while still on Day Parole, he would have been eligible for
release on Mandatory Supervision on or about November 26,
1982, instead of February 11, 1985. The severity of the conse
quences flowing from revocation were significantly affected by
the form of conditional release the Applicant was subject to at
the time of commission of the new offences. There is no good
and sufficient reason the change in status alone should have
such a dramatic effect. Hence the effect can be said to be
arbitrary in the sense of being without a reasonable basis.
The first ground of complaint is that the number
of days of remission lost as a consequence of the
revocation is what it is and in no way reflected the
relative gravity of any conduct relied on as a basis
for revocation. The elements here are the moment
in time at which the applicant chose to commit any
further transgression, and its gravity. Given the
objective of the statutory provisions, of which more
anon, the best which can be said for this submis
sion is that the elements of the applicant's plight
were entirely in his own hands. The number of
days lost is a function of the times during manda
tory supervision at which the applicant himself
perpetrated the offences of break, enter and theft
(June 26 and 27, 1982) and assault on a peace
officer (June 28, 1982). The object of the earlier
B, E and T was a dwelling house. The revocation
is, according to the Board's lawful exercise of its
delegated discretion, a consequence of the gravity
of those intrusive, thieving and violent offences.
The National Parole Board exercised its discretion
to revoke in direct response to the applicant's
personal misconduct. No evidence is required to
demonstrate that the Board in fact directed its
mind to the appropriateness of the consequence:
that is presumed. In fact there is no evidence to the
contrary.
The Board did not visit upon the applicant any
capricious, unreasonable, unjustifiable or despotic
incarceration. The applicant chose or exploited the
occasions and perpetrated the misdeeds all by him
self. In this light, then, there can be no viable
complaint about being arbitrarily detained or
imprisoned. The applicant's misfortune was not
inflicted upon him for no reason, like a disease, or
a pogrom. The revocation was imposed because he
committed three crimes for which he was convict
ed and sentenced. The establishment or absence of
support services for offenders such as the appli
cant, may have some bearing on whether or not he
would have been tempted and resolute enough to
commit those crimes. Although that is, no doubt, a
matter of concern, it was not raised explicitly and
could not bear directly upon the question of wheth
er or not he was arbitrarily detained or imprisoned
by any act of the National Parole Board. The
applicant's complaint about the Board's exercise of
its discretion must be rejected.
But the foregoing disposition does not end the
consideration of whether the applicant was, by
revocation of his mandatory supervision, arbitrari
ly detained or imprisoned. The statutory provisions
themselves could run afoul of section 9 of the
Charter, and could therefore be ruled to be uncon
stitutional. In Belliveau v. The Queen, [1984] 2
F.C. 384; 10 D.L.R. (4th) 293; 13 C.C.C. (3d) 138
(T.D.), Mr. Justice Dubé of this Court addressed
the question (at page 395 F.C.; at pages 301-302
D.L.R.; at page 146 C.C.C.) thus:
The proscription against arbitrary detention in section 9 is
against detention without specific authorization under existing
law, or without reference to an adequate determining principle
or standard. (Regina v. Frankforth (1982), 70 C.C.C. (2d) 448
(B.C. Cty Ct.).) The proscription is against a capricious or
arbitrary limitation of a person's liberty. (Re Jamieson and
The Queen (1982), 70 C.C.C. (2d) 430 (Que. S.C.).) ... Of
course, the mere fact that a statute sets out a specific procedure
for detaining a person does not mean that the application of the
statute is automatically free from arbitrariness. (Re Mitchell
and The Queen (1983), 42 O.R. (2d) 481 (H.C.).)
In light of section 52 of the Constitution Act,
1982, [Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)] Mr. Justice Macfarlane of the British
Columbia Court of Appeal considered the consti
tutionality of the basic policy of a statute. There
he was addressing the mandatory minimum term
of seven days' imprisonment exacted by subsection
88.1(2) of the Motor Vehicle Act [R.S.B.C. 1979,
c. 288 (as am. by S.B.C. 1981, c. 21, s. 55)], a
provincial statute. Thus, in R. v. Konechny, [ 1984]
2 W.W.R. 481 (B.C.C.A.), at page 503, in the
principal majority opinion, he wrote:
I agree that imprisonment is not less arbitrary because it is
authorized by statute if there is no rational basis for the
statutory policy. An arbitrary policy, one which is capricious,
unreasonable or unjustified, may be struck down under s. 52 of
the Constitution Act, 1982, as being inconsistent with the
provisions of the Charter. Section 9 of the Charter does not
excuse arbitrary imprisonment on the basis that it is authorized
by law.
The courts have been given the power under s. 52 of the
Constitution Act, 1982, to review, and in appropriate cases to
strike down legislation. But that does not mean that judges
have been authorized to substitute their opinion for that of the
legislature which under our democratic system is empowered to
enunciate public policy. The basis for such policy may be
reviewed if the policy is said to conflict with individual rights
under the Charter, but, in my opinion, the policy ought not to
be struck down, in the case of a challenge under s. 9, unless it is
without any rational basis. If there be a rational reason for the
policy then I do not think it is for a judge to say that the policy
is capricious, unreasonable, or unjustified.
The Court concluded (Lambert J.A. dissenting),
that the legislative policy has a rational basis. That
conclusion certainly did not dilute in any way the
force of section 52: it retains its full constitutional
import as was recently noted in the judgment of
the Supreme Court of Canada in Operation Dis
mantle Inc. et al. v. The Queen et al., [1985] 1
S.C.R. 441.
The policy of the pertinent provisions of the
Parole Act must be considered, since the applicant
asserts that it conflicts with individual rights under
the Charter. The standard of proportionality, by
which legislative policy may be gauged, is an acid
test of arbitrariness in a statutory provision for
incarceration. It is implicit in the applicant's com
plaint about the severity of the consequences flow
ing from the revocation of his mandatory supervi
sion. An example of gross disproportionality cited
by Macfarlane J.A. in the Konechny case (supra)
would be making overtime parking a felony pun
ishable by life imprisonment.
Is there, at bottom, some disproportionality in
those provisions of the Parole Act which delegate
to the National Parole Board the discretionary
power to revoke parole, including mandatory
supervision, in these circumstances? After all,
mandatory supervision is an inmate's statutory
right. It is a right accorded, wholly within Parlia
ment's legislative jurisdiction over the criminal
law, in derogation of the sentence of imprisonment
imposed by a court of competent criminal jurisdic
tion. Were it not for that statutory right, the
inmate would be obliged to serve every day of the
term of imprisonment prescribed by the sentence
of the court. It must be accepted that the sentence
pronounced, whether or not confirmed or modified
by an appellate court, is a fit sentence. The sen
tencing court, or, where the accused exercises his
right to seek leave to appeal and obtains it, the
appellate court ensures the fitness of the sentence
according to the fair and well-known principles of
sentencing. That process of pre-eminent judiciality
is the antithesis of arbitrariness.
It is important to distinguish between a statu
tory right and a constitutional right in this regard.
In these specific circumstances it would be hardly
possible to translate the statutory right of parole or
mandatory supervision into the constitutional right
expressed in section 9 of the Charter. If Parlia
ment were to go so far beyond paragraph 10(1)(e)
of the Parole Act as to repeal and thereby abolish
parole, including mandatory supervision, would
that act be so disproportional as to constitute
arbitrary imprisonment? Hardly. Even in that far-
reaching legislative policy, if it were ever adopted,
the direct consequence would merely be that an
inmate would be obliged to serve the already fit
sentence which the competent court actually
pronounced.
The statutory diminution of a prison term
accorded by Parliament under the Parole Act is a
benefit conferred upon the inmate. The statutory
withdrawal of that benefit could hardly prejudice
inmates' rights under section 9 of the Charter.
They would simply have to endure the terms
imposed by original or modified sentences of
unquestionable fitness. There would be no arbi
trariness in that.
When, as is the case, Parliament enacts that the
National Parole Board may revoke mandatory
supervision when a breach of its term or condition
occurs, the legislation is endowed with a rational
purpose whose consequences are wholly propor
tional to the inmate's misdeed, that is, serving out
the fit sentence judicially pronounced. The legisla
tive purpose, as described [at page 392 F.C.] by
Dubé J. in the Belliveau case (supra), is "to
gradually rehabilitate the prisoner, to control his
behaviour and to deter him from committing new
crimes with the threat of revocation". That policy
is quite rational, proportional and is not one of
arbitrary imprisonment.
The applicant's right not to be arbitrarily
detained or imprisoned, guaranteed in section 9 of
the Charter, has not been infringed by the revoca
tion of his mandatory supervision and that branch
of his application fails.
The final branch of the applicant's case is to
invoke section 7 of the Charter. It runs as follows:
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.
Section 7 guarantees, in effect, two kinds of rights
and the second, a negative enjoinder against viola
tion of the first which is affirmative, renders the
first not absolute, but qualified. Regarding the
narrow minimum meaning of life—not to be put to
death—it may be said to be absolute so long as
Parliament eschews capital punishment as a penal
ty for serious criminal offences. Liberty and secu
rity of the person, however, are qualified to the
extent that an individual may be deprived of such
right in accordance with the principles of funda
mental justice.
The applicant asks the Court "to find that the
delay of his eligibility for release on mandatory
supervision and the resultant extension of his lia
bility to be kept incarcerated, as a direct conse
quence of a loss of earned remission upon revoca
tion of his mandatory supervision, constituted a
violation of his constitutional rights protected by
section 7 of the Charter".
Here, in large part, are the arguments advanced
to support the applicant's position:
24. Had the conduct relied on to revoke his conditional release
occurred at any time prior to the date on which the most recent
offences were committed, he would have lost no earned remis
sion; thus the increased liability to incarceration flows from his
status on Mandatory Supervision and not the gravity of any
conduct.
25. Had he committed a more serious offence or offences while
on Mandatory Supervision or been revoked on the ground of
conduct not constituting a criminal offence, the consequences
under Section 20 would have been identical to those that
accrued in this case.
26. Because the consequences under Section 20 are automatic
and the National Parole Board has a policy of exercising its
discretion to recredit remission only in extraordinary circum
stances, the increased liability to incarceration seen in this case
is not the result of an application of the principles of sentencing
to the facts of this individual case to arrive at a reasoned
decision about the quantum of additional incarceration, if any,
that should be imposed. The quantum of increased liability to
incarceration therefore cannot be said to have been imposed on
this individual in accordance with recognized principles of
punishment whereby the severity of punishment is to be adjust
ed to suit the gravity of the offence.
27. Had the Applicant committed the same offences during his
previous sentence, but prior to his release on day parole (May
31, 1982, see paragraph 11 of the Applicant's Affidavit; release
on Mandatory Supervision was June 27, 1982—paragraph 12),
he would have lost no earned remission whatsoever as a conse
quence of action by the Parole Board as they would have had
no jurisdiction. Increased liability to incarceration as a direct or
statutory consequence of commission of the offences would
have been limited to that imposed as a sentence on conviction
for these offences. Had he also been convicted in an institution
al disciplinary court of these same offences, and punished for
them by loss of earned remission, this would have constituted
an infringement of his rights under Section 11(h) of the
Charter because an adjudication with reference to the same
conduct leading to a finding of guilt and the imposition of a
sanction for this conduct would have already occur red.
28. The effect of Section 20 was to impose a further sanction—
loss of earned remission and thus a delay in entitlement by law
to conditional release—in addition to the sentence imposed by a
criminal court on conviction for the same offence. The double
jeopardy principle is an aspect of fundamental justice under
Section 7 and must be held to bar the imposition of an
additional penal sanction on an individual on the basis of the
same offence. In a situation such as this, where the sanction
accrues automatically without a further "adjudication", the
protection against "double jeopardy" must be found to lie
within Section 7; Section 11(h) is directed against multiple
adjudications. However, the general principle given specific
expression in Section 11(h) is without doubt at root a "principle
of fundamental justice" and thus Section 7 must be seen to
protect the Applicant against multiple punishments for the
same conduct even if no double adjudication, as such, has
occurred.
29. It is to be further noted that even though the earned
remission credit of the Applicant represented a vested entitle
ment to conditional release (See Moore—S.C.C.) and thus a
liberty interest not to be defeated without cause, the loss of
these credits (with the effect of significant delay in entitlement
to release from close custody) was not the deliberate decision of
a decision-maker observing the basic elements of fundamental
justice by a procedure designed to ensure that the functions of
the principles of fundamental justice in ensuring a principled
decision on the facts were in some way fulfilled, with or without
the formalities of a full in-person hearing.... Instead, the
consequence accrued automatically under Section 20 and
review, although available in law under Section 20, is by
National Parole Board policy a paper review and wholly inade
quate to provide adequate procedural protections. And, of
course, as noted above, a decision to recredit remission will, in
any event, be made only in extraordinary circumstances.
31. The Applicant asks the court to find that the loss of his 611
days earned remission credit under Section 20 of the Parole
Act was other than in accordance with the principles of funda-
mental justice in the procedural sense as interpreted by the
Fededal Court of Appeal in Re Glen Howard. [A-1041-83,
judgment rendered March 1, 1985.]
33. The Applicant argues that substantive review under Section
7 need not and ought not involve scrutiny of the merits of the
policy of the legislation. The much-feared Lochnerism is nei
ther necessary or appropriate in constitutional review. Here
with reference to Section 20 of the Parole Act, even if the
Applicant were asking (as he is not) that the Section itself be
declared inoperative on the grounds of inconsistency, the incon
sistency in that case, as in this particular case, would be found
to lie in conflict of the effects of the legislative provisions with
general principles of fundamental justice such as proportional
ity and penal liability. The Charter requires that legislation,
whether meritorious or not from a policy point of view (itself
often a matter of on-going public debate), must not be funda
mentally injust in its effect on individual life, liberty and
personal security in the absence of demonstration under Section
1 that the effect is a consequence of a justifiable and reasonable
limit on individual rights.
34. The Applicant further submits that the interpretation of
Section 7 proposed here, according to which Section 7 does
have a substantive aspect, implies that the courts may declare
individual laws to be in violation of Section 7 because they lend
themselves to results in individual cases that are fundamentally
injust. This does not, however, imply that the basis for declar
ing a law in violation of Section 7, or for suspending the effects
of a legislative provision in an individual case, involves a
normative evaluation of the policy underlying the particular
law, as such, or of the political vision that may have inspired
the legislation in question.... If a particular policy cannot be
translated into a law whose impact on persons is "in accordance
with the principles of fundamental justice," the effect of Chart
er review will be to prevent legal implementation of that policy.
However, the basis for the bar to implementation of that policy
by application of a law in a specific case such as this will lie in
judicial interpretation of the requirements of the "principles of
fundamental justice" and a judgment as to whether these are
met in the case of application of the peculiar law, its effects in
individual cases, and not in a political judgment about the
desirability of the goal sought to be implemented.
35. No evidence or argument that Section 20 of the Parole Act
was a demonstrably justifiable, reasonable limit on the Appli
cant's liberty interest is before the court ... .
36. The Applicant submits that the lack of adequate procedural
protections under Section 20 cannot be justified given the
significance of the interest at stake ... and the absence of any
necessity that the decision be made immediately.
37. The Applicant further submits that the increased liability to
incarceration in close custody, that flows under Section 20 of
the Parole Act as an automatic consequence of revocation, is
neither reasonable nor justifiable in this case in that:
(a) the Applicant was subject to incarceration under the
consecutive sentence of 27 months imposed on July 14, 1982,
and therefore was not eligible for conditional release for at
least 18 months, protection of the public did not require
revocation and there was no risk of breach of conditions of
release as the Applicant was detained in close custody under
the consecutive sentence;
(b) the quantum of increased liability to incarceration that
resulted from revocation is not "reasonable" in that it was a
product solely of the remission earned under the previous
sentences and thus there was no rational connection between
the basis for the conviction of the new offence and the
quantum of augmentation of liability to incarceration in close
custody;
(c) at sentencing for the most recent offences the judge
had discretion to take the prior record of the Applicant into
account to the extent that this was justified on the basis of
ordinary principles of sentencing; effective aggravation of
sentence imposed automatically under Section 20 on revoca
tion, in addition to that imposed at sentencing, is not reason
able and serves no bona fide social purpose that is not
already fulfilled by other more just and appropriate means.
The attack is focussed upon section 20 of the
Parole Act. It must be read with subsection 15(2)
in mind: "parole" includes "mandatory supervi
sion". The applicant is not seeking to have that
section itself declared inoperative. He seeks relief
only against what he alleges is the unconstitutional
effect on him.
If the operation of section 20 be found to
deprive the applicant of this right to liberty and
security of the person in violation of the principles
of fundamental justice, he must be accorded a
remedy. In contemplation of section 52 of the
Constitution and section 24 of the Charter, the
consequence, whatever it be, must be to uphold the
constitutional imperatives.
The matter of proportionality has already been
considered herein in so far as the effect of revoca
tion of mandatory supervision is concerned. The
applicant after being admitted to it, as was his
statutory right, committed the offences of break,
enter and theft and of assault on a peace officer. In
enacting the pertinent provisions of the Parole Act,
Parliament has offered this conditional benefit to
inmates: the inmate is not required to serve the full
term of imprisonment imposed by a fit sentence,
provided that the inmate abstains from further
criminality by keeping the peace and being of good
behaviour. If the inmate lives up to that reasonable
condition, the balance of his term of imprisonment
is deemed to be served outside a carceral institu
tion. This is a benefit to which he would not
otherwise be entitled, because it saves him from
the total term to which he was fittingly sentenced
by a competent court of criminal jurisdiction.
Since the Charter is predicated upon guaranteeing
freedoms and liberties, the Court could not be
concerned with proportionality if Parliament were
to accord a statutory right to exemption from
carceral consequences of further criminality. That
would grant more liberty, but Parliament does not
need to dilute previously pronounced sentences
that much, and it has not done so.
The Court, in applying section 7 of the Charter,
must guard against statutory consequences which
deprive individuals of their liberty and personal
security in violation of the principles of fundamen
tal justice. Section 20 and related provisions of the
Parole Act do not have the effect of inflicting such
deprivation according to their plain meaning.
In the case at bar there is no direct evidence and
no cogent implication to the effect that the appli
cant was denied any procedural rights to funda
mental justice under the Parole Act. A post-sus
pension hearing was necessary before revocation,
and there is no suggestion that the applicant was
in any way foreclosed from making his submis
sions, if any. He could certainly have sought to
persuade the Board to recredit all or some of his
lost remission pursuant to subsection 20(3) of the
Act. Under section 20.1 of the Regulations [Parole
Regulations, SOR/78-428 (as am. by
SOR/81-318, s.1)] he had the right to assistance,
including counsel, at the hearing. There is no
evidence that the applicant was deprived of a fair
hearing in any sense of the expression or in any
aspect of the reality of a fair hearing.
After all, it is not for the National Parole Board
to dilute or discount the fact that the criminal
court found the applicant to be guilty of the
criminal offences of break, enter and theft and of
assaulting a peace officer. There is nothing con
trary to fundamental justice in the Board's acting
upon the breaches of the paramount condition of
mandatory supervision which inhere in the com
mission of those offences. Of course, it would be
savagely disproportionate if the Board could apply
the Act to revoke for an offence, for example, of
riding a bicycle on a sidewalk, but such is far from
the case here. The applicant's criminal conduct
here constituted serious breaches of a term or
condition of mandatory supervision; and the timing
of his misconduct was his and not the Board's.
Does section 7 of the Charter import more than
procedural standards? In Latham v. Solicitor
General of Canada, [1984] 2 F.C. 734; 9 D.L.R.
(4th) 393 (T.D.), Mr. Justice Strayer of this Court
considered the argument that section 20 of the
Parole Act is, in its substantive provisions, con
trary to fundamental justice and thus contrary to
section 7 of the Charter. Here is what Strayer J.
wrote (at pages 750-751 F.C.; at page 405 D.L.R.)
on that issue:
I am unaware of any authority binding on me as to this
interpretation of section 7 of the Charter and I reject it. It is
clear from the legislative history of section 7 that it was
intended to guarantee only procedural justice or fairness. The
potentially broader language of the comparable provision in the
Canadian Bill of Rights, R.S.C. 1970, Appendix III, paragraph
1(a) which referred to "due process of law" was obviously
deliberately avoided. The language employed in paragraph 2(e)
of the Bill, which referred to "fundamental justice", was
instead used. These words had been interpreted by the Supreme
Court (Duke v. The Queen, [1972] S.C.R. 917, at p. 923) to
have a procedural content and it can be assumed that the words
were subsequently employed in the Charter in this sense.
Indeed, to give them a substantive content would be to assume
that those legislative bodies and governments which adopted
the Charter were prepared to commit to initial determination
by the courts issues such as the propriety of abortion or capital
punishment or the proper length of prison sentences. This flies
in the face of history.
Therefore, if section 7 of the Charter be limited to
procedural content as determined by Strayer J., it
is apparent that the applicant has put forth no
valid complaint here, in that regard.
In the recent decision of this Court's Appeal
Division in Howard v. Stony Mountain Institution,
[ 1984] 2 F.C. 642, Chief Justice Thurlow, with
whose reasons Pratte J. concurred, stated [at page
6611:
Further, while the argument in the present case focussed on
the meaning and effect of the wording "in accordance with the
principles of fundamental justice" as a guarantee of procedural
standards, I would not rule out the possibility that the wording
may also refer to or embrace substantive standards as well.
Although this passage may be characterized as an
obiter dictum in the circumstances, it leaves an
opening for asserting substantive content in the
words of section 7.
The threshold of substantive application of the
provisions of section 7 was apparently crossed in
an even more recent decision of the Supreme
Court of Canada, in Singh et al. v. Minister of
Employment and Immigration, [1985] 1 S.C.R.
177. There the six Judges of the Court who ren
dered judgment divided evenly on the matter of
whether to apply paragraph 2(e) of the Canadian
Bill of Rights or section 7 of the Charter, but in
the result came to the same effective conclusion. In
the latter group, Madam Justice Wilson, with
whose reasons Dickson C.J. and Lamer J. con
curred, stated [at page 201]:
The substance of the appellants' case, as I understand it, is
that they did not have a fair opportunity to present their
refugee status claims or to know the case they had to meet. I do
not think there is any basis for suggesting that the procedures
set out in the Immigration Act, 1976 were not followed correct
ly in the adjudication of these individuals' claims. Nor do I
believe that there is any basis for interpreting the relevant
provisions of the Immigration Act, 1976 in a way that provides
a significantly greater degree of procedural fairness or natural
justice than I have set out in the preceding discussion. The Act
by its terms seems to preclude this. Accordingly, if the appel
lants are to succeed, I believe that it must be on the basis that
the Charter requires the Court to override Parliament's deci
sion to exclude the kind of procedural fairness sought by the
appellants.
In the result, the appellants succeeded despite the
differing approach to their plight pursued by the
two equal numbers of Judges of the Supreme
Court.
Does the Charter require the Court to override
Parliament's decision to accord the conditionally
revocable benefit of mandatory supervision on
inmates who breach its terms and conditions?
Clearly it does not. No Act of Parliament and no
instrumentality of the State acting thereunder
placed the applicant in any double jeopardy what
ever. The substance of the pertinent provisions of
the Parole Act exact that the inmate who by
criminal misconduct breaches the terms of the
conditional remission accorded to him, may there
upon be obliged to bear the full consequence of the
original and realized jeopardy in which he placed
himself. The provision for loss of that remission
which would have carried qualified liberty, in such
circumstances, violates no principle of fundamen
tal justice. The dashing of the inmate's expectation
of avoiding the full term of imprisonment, lawfully
and fittingly earlier imposed, is a consequence for
which he has only himself to reproach.
In subsection 20(3) of the Parole Act Parlia
ment has provided for a possible moderation of the
fundamentally just, but stern, consequence which
the applicant brought upon himself. The National
Parole Board retains the discretion to recredit
remission in appropriate cases. That the Board
exercises this discretion only infrequently affords
no support to the applicant's case, although it
might conceivably be of practical benefit to him.
Subsection 20(3) is not essential for the statute's
surviving any substantive test under section 7 of
the Charter, but it imports a certain momentum to
surmounting the hurdle with room to spare.
The applicant was certainly deprived of his
qualified liberty, and that deprivation was effected
quite in accordance with the principles of funda
mental justice. Therefore upon both a procedural
and substantive application of section 7 of the
Charter, that provision was not violated by the
revocation of the applicant's mandatory supervi
sion in this instance.
The foregoing review of the evidence and sub
missions of counsel amply illustrates that the limits
prescribed by the Parole Act upon the applicant's
qualified liberty in these circumstances, are
demonstrably justified in this, or any, free and
democratic society. Those limits are objectively
justifiable.
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