A-727-85
Willis Elvis James Maxie (Appellant) (Appli-
cant)
v.
National Parole Board and Correctional Service
of Canada (Respondents) (Respondents)
INDEXED AS: MAXIE v. CANADA (NATIONAL PAROLE BOARD)
Court of Appeal, Thurlow C.J., Heald and
Hugessen JJ.—Saskatoon, October 23 and 24;
Ottawa, November 13, 1986.
Parole — Appellant committing offences while on mandato
ry supervision — Convicted and sentenced to consecutive term
of imprisonment — Mandatory supervision revoked — Appeal
from refusal to quash revocation — Revocation intra vires
Board's powers — Parole Act conferring on Board exclusive
jurisdiction and absolute discretion to grant, refuse or revoke
parole — Mandatory supervision equated with parole by
virtue of s. 15(2) of Act — Decision to revoke made in light of
appropriate criteria — Appeal dismissed — Parole Act,
R.S.C. 1970, c. P-2, ss. 6 (as am. by S.C. 1976-77, c. 53, s.
23), 10(1)(b),(e), 14(1) (as am. by R.S.C. 1970 (1st Supp.), c.
31, s. 1; S.C. 1977-78, c. 22, s. 19), 15(2),(4) (as am. by S.C.
1976-77, c. 53, s. 28), 20 (as am. idem, s. 31).
Constitutional law — Charter of Rights — Criminal process
— Offences committed while on mandatory supervision —
Consecutive term of imprisonment imposed — Mandatory
supervision revoked — Criteria supporting revocation appro
priate — No onus on respondents to establish "Charter
adequacy" of criteria — Onus on appellant to show Board's
decision erroneous — Canadian Charter of Rights and Free
doms, being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), ss. 9, 11(h) — Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.).
Constitutional law — Charter of Rights — Life, liberty and
security — Mandatory supervision revoked following convic
tion for offences committed while at large — Inmate to serve
remainder of earlier sentence in addition to new sentence —
Loss of remission — Whether increased liability to incarcera
tion due to revocation deprivation of liberty — Revocation
result of Board's decision on how to deal with breach of
condition of mandatory supervision — Double jeopardy prin
ciple not offended — Incarceration for new offences resulting
from breach of criminal law — Incarceration resulting from
revocation of mandatory supervision for breach of condition
thereof — 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. 7.
The appellant's mandatory supervision was revoked following
conviction of offences committed while at large. A consecutive
sentence of imprisonment was imposed. The effect of the
revocation was to require the appellant to serve the remainder
of his earlier sentence in addition to the new sentence. The
revocation also resulted in a loss of remission.
The Trial Division dismissed an application for certiorari to
quash the revocation and for mandamus to require the appel
lant's release or to recredit him with remission lost.
The appellant submits that the revocation was ultra vires the
National Parole Board. The appellant further argues that the
decision to revoke violates his right under section 9 of the
Charter not to be detained or imprisoned arbitrarily as well as
his right to liberty protected by section 7 thereof.
Held, the appeal should be dismissed.
The appellant's submission, that the decision to revoke
exceeds the Board's powers, was rejected as unduly limiting the
authority of the Board to exercise the discretion conferred on it
by the Parole Act. Under the Act, the Board has exclusive
jurisdiction and absolute discretion to grant, refuse or revoke
parole. Although parole is different from mandatory supervi
sion, both are to be treated equally by virtue of subsection
15(2) of the Act which provides for the application of certain
provisions of the Act to an inmate who is subject to mandatory
supervision as though he were a paroled inmate.
Nor could the appellant's argument that he had been
detained arbitrarily be accepted. The decision to revoke was
made in the light of appropriate criteria, such as the need to
exercise closer control on the appellant, to protect the public
and to ensure that the appellant had received, from the point of
view of rehabilitation, the maximum benefit from incarcera
tion. No onus rested on the respondents to establish the correct
ness or "Charter adequacy" of those criteria. It cannot be
presumed that the Board acted improperly, and the onus of
showing that its decision was erroneous fell on the appellant.
It was urged that the increased liability to incarceration
which flows as a consequence of revocation is unjust and
amounts to a deprivation of liberty, and that the principle
against double jeopardy is thereby offended.
The quantity of earned remission forfeited on revocation is
not primarily, if at all, a punishment for the new offence or
breach of condition. It is the result of a decision by the Board
as to what to do about a breach of condition of mandatory
supervision having regard to what it shows about the state of
the inmate's rehabilitation and the risk to the public of his
being left at large. The resulting incarceration is not a new
sentence but the old one imposed for the appellant's earlier
offences that is to be served in custody rather than at large on
mandatory supervision. Moreover, in considering whether the
statute is just, it had to be kept in mind that mandatory
supervision is an option which the inmate may accept or refuse
but, if accepted, it may entail the consequence provided for in
subsection 20(2).
The principle against double jeopardy for the same conduct
had not been offended. The appellant's incarceration for his
new offences is for breaching the criminal law. His incarcera
tion resulting from revocation of mandatory supervision is for
breach of the condition on which he was at large. The same
conduct brought the two results; however, neither the consider
ations leading to them nor their legal bases were the same. The
commission of the new offences was merely the occasion for
consideration by the Board of whether it was fitting to continue
the appellant's mandatory supervision or to revoke it.
COUNSEL:
L. Vandervort for appellant (applicant).
Mark Kindrachuk for respondents (respon-
dents).
SOLICITORS:
College of Law, University of Saskatchewan,
Saskatoon, for appellant (applicant).
Deputy Attorney General of Canada for
respondents (respondents).
The following are the reasons for judgment
rendered in English by
THURLO\V C.J.: This is an appeal from a judg
ment of the Trial Division [[1985] 2 F.C. 163]
which dismissed the appellant's application
brought by originating notice of motion on Febru-
ary 13, 1985, for certiorari to quash the revocation
by the National Parole Board of the appellant's
mandatory supervision and mandamus to require
the release of the appellant on mandatory supervi
sion or to recalculate his mandatory supervision
eligibility date in accordance with the require
ments of the law and the Constitution Act, 1982
[Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)] or to recredit the appellant with remission
automatically lost on revocation under subsection
20(2) of the Parole Act [R.S.C. 1970, c. P-2, (as
am. by S.C. 1976-77, c. 53, s. 31)] and for such
other order, including an order for reparation as
might be just.
Facts
The appellant, an inmate of Oskana Centre,
who had been on day parole for about two months,
was released on mandatory supervision on June 27,
1982. He had to his credit at that time some 610
days of earned remission representing the remain
ing portion of sentences totalling five years and
nine months terminating on February 28, 1984.
These sentences had been imposed between Sep-
tember 1978 and September 1981 on some nine
teen convictions for a range of offences that
included breaking and entering, driving a motor
vehicle while disqualified, driving while impaired
by alcohol, common assault, assault occasioning
bodily harm, escaping lawful custody, attempting
to escape lawful custody, breaking a cell for that
purpose, forgery, car theft and mischief by damag
ing property.
On June 30, 1982, but three days after his
release, the appellant's mandatory supervision was
suspended and he was again taken into custody.
Two weeks later, on July 14, 1982, he was convict
ed on two counts of breaking and entering and
theft committed on June 26, 1982, and June 27,
1982, and on one count of assaulting a peace
officer committed on June 28, 1982. For these
offences he was sentenced to terms totalling 27
months consecutive to his previous sentence. He
was also convicted of having intoxicants on an
Indian reserve on June 28, 1982, and fined $20
and, in default of payment, to be imprisoned for 15
days. He did not pay the fine. At that point,
subsection 15(4) of the Parole Act [as am. by S.C.
1976-77, c. 53, s. 28] came into play. It provided:
15. ...
(4) Where an inmate subject to mandatory supervision com
mits an additional offence for which a consecutive sentence of
imprisonment is imposed and mandatory supervision is not
revoked, the period of mandatory supervision is interrupted and
is not resumed until the later sentence has been served.
However, on August 4, 1982, the National Parole
Board reviewed the appellant's case under the
Parole Act and thereupon revoked his mandatory
supervision. Under section 20 of that Act, the
effect of such revocation was (subject to the exer
cise by the Parole Board of its power to recredit
remission) to require the appellant to serve the
remainder of the earlier sentence, as well as the
new sentence, in custody, that is to say, until the
end of May 1986, subject to his being released on
parole or on mandatory supervision as a result of
remission earned by him in the meantime.'
Three issues were raised on behalf of the appel
lant. The first was that the revocation of the
appellant's mandatory supervision was, in the cir
cumstances to be described, not authorized by the
' Though that date had passed by the time this appeal came
on for hearing, the Court was informed, without objection from
counsel for the respondents, that the subject matter of the
appeal is not moot as the appellant incurred further terms of
imprisonment following a subsequent release on mandatory
supervision and would be entitled to credit should it be held
that his earned remission should not have been forfeited by the
revocation of his mandatory supervision on August 4, 1982.
Not without doubt because the material facts are not in the
record, the Court agreed to hear the appeal.
Parole Act. The second was that the revoking of
the appellant's mandatory supervision and recom-
mitting him to custody to serve the remainder of
his sentence was arbitrary and violated his right
under section 9 of the Canadian Charter of Rights
and Freedoms [being Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982,
c. 11 (U.K.)] not to be arbitrarily detained or
imprisoned. The third was that the return of the
appellant to custody on revocation of his mandato
ry supervision violated his rights under section 7 of
the Charter not to be deprived of his liberty except
in accordance with the principles of fundamental
justice. The several submissions made under each
of these heads will be summarized later in these
reasons.
The ultra vires point
Under section 6 of the Parole Act [as am. by
S.C. 1976-77, c. 53, s. 23], the National Parole
Board has, subject to that Act, the Penitentiary
Act and the Prison and Reformatories Act, exclu
sive jurisdiction and absolute discretion to grant or
refuse parole and to revoke parole. By paragraph
10(1)(b) the Board is authorized to impose any
terms and conditions that it considers desirable in
respect of an inmate who is subject to mandatory
supervision and, by paragraph (e) of the same
subsection, the Board is authorized, in its discre
tion, to revoke the parole of an inmate. Parole and
mandatory supervision are different but, under
subsection 15(2), paragraph 10(1)(e) and sections
11, 13 and 16 to 21 apply to an inmate who is
subject to mandatory supervision as though he
were a paroled inmate on parole and as though the
terms and conditions of his mandatory supervision
were terms and conditions of his parole. Of these,
section 11 deals with procedural requirements,
section 13 declares that the term of imprisonment
of an inmate on parole is deemed to continue in
force until its expiration and sections 16 to 21 deal
with suspension and revocation of parole. The
effect, as the learned Trial Judge observed, is to
equate mandatory supervision with parole for these
purposes.
The appellant's submission, as I understand it,
was that the use of the Board's power to revoke
parole in a case such as this where the appellant at
the time of revocation was already in custody
under his new sentence was unnecessary in order
to prevent a breach of a condition of mandatory
supervision or to protect society, that its exercise
had effect only as additional punishment rather
than supervision of the appellant or protection of
the public and that in these circumstances it was
ultra vires the powers of the Board.
In my opinion, the submission seeks to put much
too narrow limits on the authority of the Board to
exercise the discretion conferred on it by the stat
ute. The statute has not so limited that discretion.
But even if the discretion were limited to such
purposes, in light of the stark facts which have
been related, I do not see how it could be success
fully contended that the decision to revoke the
appellant's mandatory supervision was other than
for the purpose of subjecting the appellant to
closer supervision and to protect the public from
the effects of his obvious propensity to misconduct.
In my opinion, the Board had authority to revoke
the appellant's mandatory supervision on August
4, 1982, notwithstanding the fact that he was
already in custody, whether as a result of the
suspension of his mandatory supervision on June
30, 1982, or the sentence of 27 months imposed on
July 14, 1982, and nothing in the facts disclosed in
the case indicates that the Board's discretion was
exercised otherwise than on proper grounds.
At that point subsection 15(4) ceased to have
any application, leaving the more general provision
of subsection 14(1) to apply [as am. by R.S.C.
1970 (1st Supp.), c. 31, s. 1; S.C. 1977-78, c. 22, s.
19]. It provides:
14. (1) Where, either before, on or after the 25th day of
March 1970,
(a) a person is sentenced to two or more terms of imprison
ment, or
(b) an inmate who is in confinement is sentenced to an
additional term or terms of imprisonment,
the terms of imprisonment to which he has been sentenced,
including in a case described in paragraph (b) any term or
terms that resulted in his being in confinement, shall, for all
purposes of this Act, the Criminal Code, the Penitentiary Act
and the Prisons and Reformatories Act, be deemed to consti
tute one sentence consisting of a term of imprisonment com
mencing on the earliest day on which any of those sentences of
imprisonment commences and ending on the expiration of the
last to expire of such terms of imprisonment.
The learned Trial Judge also considered and
rejected an argument based on what was referred
to as the "Burns Ruling". It is referred to in the
material in the record but the ruling itself is not
included. When counsel for the appellant sought to
raise the matter in the course of argument it was
conceded that as a result of that ruling some
inmates had been treated differently from others
in the calculation of the dates of their entitlements
to release on mandatory supervision but neither
such a ruling nor a practice that may have resulted
from it is law nor can it avail to limit the authority
conferred on the Board by the statute.
The Issue on Section 9 of the Charter
As outlined in subsection 12(2) of the appel
lant's memorandum of points to be argued this
objection is that the learned Trial Judge erred in
failing to find that
(2) The postponement, as a consequence of application of
Section 20 of the Parole Act, of the date on which the
Appellant became legally entitled to be conditionally released
on mandatory supervision, was not determined in a manner and
by criteria that were principled or rational in relation to any
constitutional purpose, and that the postponement of release
therefore constituted a contravention of the Appellant's right to
be protected from arbitrary imprisonment under Section 9 of
the Charter of Rights and Freedoms;
In support of this contention counsel for the
appellant submitted that where there is a prima
facie violation of a right protected by the Charter,
as in her submission there was in the present
situation, the onus lay on the party seeking to
justify the apparent violation to adduce evidence to
show that no violation occurred, that in Charter
cases it is not appropriate to presume that statu
tory powers have been exercised in a manner and
with reference to criteria that are "Charter
adequacy" where the question is whether a viola
tion of a protected right has occurred, that the
record discloses no evidence that the Board exer
cised its powers under subsection 20(3) of the
Parole Act or that it directed its mind to the
question whether any of the earned remission
which the appellant lost or would lose on the
revocation of mandatory supervision should be
recredited to him or that having considered the
question the Board arrived at a negative decision
on the basis of clear and reasonable criteria using
a decision-making process that was fair, and that
the failure to produce evidence to that effect gives
rise to an inference of arbitrariness which it was
for the respondents to negative, any relevant evi
dence that might exist being under their control
and not that of the appellant. Counsel further
submitted that to presume Charter compliance
would render it impossible for the appellant to
establish a violation of his Charter rights, that
accordingly Charter compliance could not be pre
sumed, that there was no evidence of the proce
dure and criteria used by the Board in this case in
its exercise, if any, of its powers to recredit earned
remission that had been lost and that no presump
tion of "Charter adequacy" of such procedure or
criteria could be made.
I disagree with and reject these submissions.
The material in the case, in my view, discloses a
sufficient basis for a decision of the Board to
revoke the appellant's mandatory supervision and
to decline to recredit any of the loss of remission
that revocation would entail. The question for the
Board was whether the appellant's conduct was
such that he should not be permitted to continue to
be on mandatory supervision but should be
required to serve the remainder of his sentence or
some part of it in custody having regard to what
the conduct disclosed as to the need to exercise
closer control over the appellant than could be
achieved with him at liberty under mandatory
supervision, to ensure that so far as possible he had
received from the point of view of rehabilitation
the maximum benefit from incarceration and to
protect the public from apprehended misconduct
by the appellant. Here the facts are that the
appellant committed a breaking, entering and theft
on the day before his release on mandatory super
vision began, a similar offence on the day it began
and an assault on a police officer on the following
day. It was an obvious case for prompt revocation
of his right to be at large. On the face of it, it
shows that the appellant was prone to commit the
same kinds of offences as those for which he had
been imprisoned and that he had yet to benefit in
the slightest from his incarceration. It also shows
the potential danger to the public from the appel
lant being allowed to go at large. There is thus, as
I see it, no basis on the evidence for thinking that
the decision was not made by the use of appropri
ate criteria.
I do not think any onus rested on the respon
dents to establish the correctness or "Charter
adequacy" of criteria used or of the procedure
adopted. It is not to be presumed that the Board
acted improperly and in my opinion the onus of
showing something illegal or erroneous about the
decision rested on the appellant who knew or had
access, by subpoena or otherwise, to any evidence
he might require to establish his case.
Next it was submitted that the effect of subsec
tion 20(3) of the Parole Act was to subject the
appellant to arbitrary imprisonment because the
extent of such imprisonment is contingent on for
tuitous factors, fortuitous because had he still been
on day parole rather than on mandatory supervi
sion when he committed the offences on June 27
and 28, 1982, he would have been dealt with as an
errant parolee and would not have suffered loss of
earned remission through revocation of his manda
tory supervision a.nd that there is no good and
sufficient reason that the change in his conditional
release status on June 27, 1982 should have such
an effect on his entitlement to earned remission
credits.
In my view the submission misstates the prob
lem by drawing comparisons to a fictitious and
hypothetical case. The question is not to know
what might have happened if the facts had been
different but whether what did happen was arbi
trary. In the circumstances described there is no
basis for concluding that the Board's decision or its
consequences were arbitrary.
Finally, it was argued that because the quantum
of earned remission to be lost on revocation of
mandatory supervision is dependent on the length
of the previous sentence and the inmate's conduct
during incarceration, neither of which factors had
any necessary connection with either the decision
to revoke or the ground for it, the severity of the
consequence of revocation was arbitrary in relation
to any proper penal or other legislative purpose. I
disagree with this as well. The Board when making
its decision had authority to recredit lost remission
in whole or in part if the circumstances warranted
such action. It also had authority to recredit remis
sion later in the sentence if it appeared appropriate
to do so. In the circumstances disclosed it was not
unreasonable or arbitrary or capricious to deny
any recredit of remission. It is not to be presumed
that the Board did not consider and reach a con
clusion on the question or that it did not reach a
conclusion by the application of appropriate
criteria.
The Issue on Section 7 of the Charter
The appellant's submission, as outlined in para
graph 12(3) of his memorandum of points to be
argued is that the learned Trial Judge erred in
failing to find that:
(3) The quantum of increased liability to incarceration imposed
on the Appellant by operation of Section 20 of the Parole Act
was not arrived at or justifiable by principles of punishment
and penal liability, and thus was a deprivation of liberty other
than in accordance with principles of fundamental justice in
contravention of the constitutional rights of the Appellant
under Section 7 of the Charter of Rights and Freedoms.
Under this head the position taken was that the
increased liability to incarceration in close custody
which flows as an automatic consequence of revo
cation is unjust in that it bears no proportion to the
gravity of the grounds for revocation but depends
only on how much earned remission the inmate has
to his credit, that it serves no bona fide social or
legislative purpose not already fulfilled by other
more just or appropriate means and is an unrea
sonable, unnecessary and excessive application of
penal force. Counsel further submitted that the
effect of subsection 20(2) was to impose a further
sentence of imprisonment in close custody in addi
tion to that awarded by the Court for the same
conduct. While conceding that paragraph 11(h) of
the Charter would not apply it was nevertheless
submitted that the principle against "double jeo
pardy" is fundamental and protection against it
must be found to be within section 7.
În my view, it is quite correct to say that the
quantity of earned remission forfeited on revoca
tion bears no proportional relation to the gravity of
the conduct or reasons for the revocation. It is not
primarily, if at all, a punishment for the new
offence or breach of condition. Rather, it is the
result of a decision by the Board as to what to do
about a breach of condition of mandatory supervi
sion having regard to what it shows about the state
of the inmate's rehabilitation and the risk to the
public of his being left at large. The resulting
incarceration is not a new sentence but the old one,
the one awarded for his earlier offences that is now
to be served in custody rather than at large on
mandatory supervision. Cases can undoubtedly be
conceived in which the harshness of the result will
suggest its unjustness but that, in the legislation, is
provided for by subsection 20(3) which authorizes
the Board to mitigate it by recrediting earned
remission. In addition it is necessary, in consider
ing the justness of the statute, to remember that
release on mandatory supervision is not compulso
ry but is an option which the inmate may accept or
refuse but which, if he accepts, may entail the
consequence provided by subsection 20(2).
Accordingly I do not think the subsection itself, in
its context in the statute, is fundamentally unjust.
Nor do I think it can be said that in the circum
stances of this case the decision to revoke the
appellant's mandatory supervision and in effect to
require him to start all over again to earn his
release before the termination of his sentences was
fundamentally or otherwise unjust.
Nor do I think the principle against double
jeopardy for the same conduct is offended. The
appellant's incarceration for his new offences is for
breaching the criminal law. His incarceration
resulting from revocation of his mandatory super
vision is for breach of the condition on which he
was at large. It was no doubt the same conduct
which brought the two results, though the con
siderations leading to them were not the same. Nor
were their legal bases the same. One was for the
new offences, the other for the old but having
regard to the new.
As I see it, the commission of the new offences
was merely the occasion for consideration by the
Board of whether it was fitting to continue the
appellant's mandatory supervision or to revoke it.
I would dismiss the appeal with costs.
HEALD J.: I agree.
HUGESSEN J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.