T-1886-83
Frank L. Belliveau, a prisoner confined in the
Dorchester Prison (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Dubé J.-Halifax, May 7; Ottawa,
May 11, 1984.
Parole - Plaintiff out on mandatory supervision reincar-
cerated and losing remission for breach of parole condition
PlaIntiff alleging mandatory supervision system ultra vires
Parliament as in violation of Charter - Mandatory supervi
sion and loss of remission provisions of Parole Act "reasonable
limits" on freedom demonstrably justifiable in free and demo
cratic society within Charter, s. 1, and not in violation of
Charter provisions on liberty of person, arbitrary detention or
cruel and unusual punishment - No "double punishment"
Parole Act, R.S.C. 1970, c. P-2, ss. 10 (as am. by S.C.
1976-77, c. 53, s. 25), 13 (rep. and sub. idem, s. 27 and as am.
by S.C. 1977-78, c. 22, s. 16), 15 (as am. by S.C. 1976-77, c.
53, s. 28), 16 (as am. idem, s. 29), 20 (as am. idem, s. 31) -
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. 1, 7, 9, 10(a), 11(h), 12 - Parole Regulations,
SOR/78-428, s. 20 (rep. and sub. SOR/81-487, s. 2).
Constitutional law - Charter of Rights - Limitation
clause - Parole - Mandatory supervision and loss of remis
sion provisions of Parole Act "reasonable limits" on freedom
in free and democratic society - Court to consider "accepta-
bility", not merits, of program - Means proportionate to
objective - Not offensive to common sense - Mandatory
supervision method of controlling gradual re-entry of prison
ers in community while providing safeguards for protection of
community - Limitations of system reasonable and justifi
able in democratic society - Parole Act, R.S.C. 1970, c. P-2,
ss. 10 (as am. by S.C. 1976-77, c. 53 s. 25), 13 (rep. and sub.
idem, s. 27 and as am. by S.C. 1977-78, c. 22, s. 16), 15 (as
am. by S.C. 1976-77, c. 53, s. 28), 16 (as am. idem, s. 29), 20
(as am. idem, s. 31) - 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. 1, 7, 9, 10(a), 11(h),
12 - Parole Regulations, SOR/78-428, s. 20 (rep. and sub.
SOR/81-487, s. 2).
Constitutional law - Charter of Rights - Life, liberty and
security of person - Parole - Mandatory supervision and
loss of remission provisions of Parole Act not in violation of
Charter, s. 7 - No indication principles of fundamental
justice disregarded in Act or unobserved in application herein
- Parole Act, R.S.C. 1970, c. P-2, ss. 10 (as am. by S.C.
1976-77, c. 53, s. 25), 13 (rep. and sub. idem, s. 27 and as am.
by S.C. 1977-78, c. 22, s. 16), 15 (as am. by S.C. 1976-77, c.
53, s. 28), 16 (as am. idem, s. 29), 20 (as am. idem, s. 31) -
Ca,Canadian Chartér of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), ss. 1, 7, 9, 10(a), 11(h), 12 - Parole Regulations,
SOR/78-428, s. 20 (rep. and sub. SOR/81-487, s. 2).
Constitutional law - Charter of Rights - Detention or
imprisonment - Parole - Breach of key condition of manda
tory supervision program - Plaintiff re-incarcerated and
losing remission - No violation of Charter, s. 9 as breach of
condition reasonable cause for re-incarceration and loss of
remission - Parole Act, R.S.C. 1970, c. P-2, ss. 10 (as am. by
S.C. 1976-77, c. 53, s. 25), 13 (rep. and sub. idem, s. 27 and as
am. by S.C. 1977-78, c. 22, s. 16), 15 (as am. by S.C. 1976-77,
c. 53, s. 28), 16 (as am. idem, s. 29), 20 (as am. idem, s. 31) -
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. 1, 7, 9, 10(a), 11(h), 12 - Parole Regulations,
SOR/78-428, s. 20 (rep. and sub. SOR/81-487, s. 2).
Constitutional law - Charter of Rights - Cruel and
unusual treatment or punishment - Parole - Parole system
involving possibility of re-incarceration and loss of remission
not outrageous, excessive or beyond rational bounds of moral
ity, therefore not in violation of Charter, s. 12 - No "double
punishment" (R. v. DeBaie) - Parole Act, R.S.C. 1970, c.
P-2, ss. 10 (as am. by S.C. 1976-77, c. 53, s. 25), 13 (rep. and
sub. idem, s. 27 and as am. by S.C. 1977-78, c. 22, s. 16), 15
(as am. by S.C. 1976-77, c. 53, s. 28), 16 (as am. idem, s. 29),
20 (as am. idem, s. 31) - 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. 1, 7, 9, 10(a), 11(h),
12 - Parole Regulations, SOR/78-428, s. 20 (rep. and sub.
SOR/81-487, s. 2).
While on parole and subject to mandatory supervision, the
plaintiff was arrested, charged, convicted and sentenced for
trafficking in narcotics. After a hearing before the National
Parole Board, his parole was revoked, with loss of remission.
The plaintiff now seeks a declaration against that decision,
alleging, in effect, that the sections of the Parole Act dealing
with mandatory supervision are ultra vires the federal Parlia
ment on the ground that they deprive him of his liberty and
impose upon him "double punishment" contrary to the Charter.
The whole mandatory supervision system is thus challenged.
Held, the action should be dismissed. Mandatory supervision
and the loss of remission are "reasonable limits" to be imposed
upon the freedom of the individual as can be demonstrably
justified in a free and democratic society, within the meaning of
section 1 of the Charter. The merits of the program are not in
issue; all the Court must consider is whether that program has
a rational basis and whether it is within the bounds of reason
acceptable in a democratic state. It is not unreasonable or
unjustifiable that in a democratic society, a program should
provide some form of control, such as mandatory supervision, to
assist convicts in their gradual re-entry into the community.
There is no indication that the right not to be deprived of the
right to liberty except in accordance with the principles of
fundamental „justice, as entrenched in section 7 of the Charter,
is disregarded in the Parole Act, or that it was unobserved in its
application in the instant case. All the procedural steps pro
vided for were followed and everything was done in accordance
with the principles of fundamental justice.
The right not to be arbitrarily detained or imprisoned, guar
anteed by section 9 of the Charter, cannot be said to have been
violated when a parolee is re-incarcerated in application of the
Parole Act for having breached a key condition of his parole.
Such a measure is not unreasonable, arbitrary or capricious.
A parole system which includes the possibility of re-incarcer
ation and loss of remission cannot be described as outrageous,
excessive or beyond the rational bounds of morality. It there
fore cannot be said to violate the right not to be subject to any
cruel and unusual treatment or punishment entrenched in
section 12 of the Charter. The argument that the Parole Act
provisions dealing with mandatory supervision, as applied in the
plaintiffs case, impose upon him "double punishment", con
trary to the Charter, is rejected on the basis of the Nova Scotia
Court of Appeal decision in R. v. DeBaie.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. DeBaie (1983), 60 N.S.R. (2d) 78 (C.A.); Federal
Republic of Germany v. Rauca (1982), 39 O.R. (2d) 705
(H.C.); Quebec Association of Protestant School Boards
et al. v. Attorney-General of Quebec et al. (No. 2)
(1982), 140 D.L.R. (3d) 33 (Que. S.C.); Regina v.
Cadeddu (1982), 40 O.R. (2d) 128 (H.C.); Re Potma
and The Queen (1983), 41 O.R. (2d) 43 (C.A.), affirm
ing (1982), 37 O.R. (2d) 189 (H.C.); Reference Re S.
94(2) of Motor Vehicle Act, R.S.B.C. 1979, c. 288
(1983), 42 B.C.L.R. 364 (C.A.); R. v. Simon, [1982] 4
W.W.R. 71 (N.W.T.S.C.); Regina v. Frankforth (1982),
70 C.C.C. (2d) 448 (B.C. Cty Ct.); Hall v. Minister of
Employment and Immigration, Ont. S.C., May 26, 1983;
Re Mitchell and The Queen (1983), 42 O.R. (2d) 481
(H.C.); Soenen v. Edmonton Remand Centre Dir., [1984]
1 W.W.R. 71 (Alta. Q.B.); Re Moore and The Queen
(1984), 45 O.R. (2d) 3 (H.C.); Re Jamieson and The
Queen (1982), 70 C.C.C. (2d) 430 (Que. S.C.).
REFERRED TO:
Law Society of Upper Canada v. Skapinker, [1984] 1
S.C.R. 357; 53 N.R. 169.
COUNSEL:
Robert P. Hynes for defendant.
APPEARANCE:
Frank L. Belliveau on his own behalf.
SOLICITOR:
Deputy Attorney General of Canada for
defendant.
PLAINTIFF ON HIS OWN BEHALF:
Frank L. Belliveau, Dorchester, New Bruns-
wick.
The following are the reasons for judgment
rendered in English by
DuBÉ J.: The plaintiff seeks a declaration to the
effect "that the Mandatory Parole Supervision is
unconstitutional" and "that the plaintiff be
released from prison as time served with remission
off his sentence".
The plaintiff drafted and filed his own statement
of claim. At the trial, by consent of Crown counsel
and by leave of the Court, he was allowed to be
represented by a law student.
If I understand the plaintiff's position correctly,
it is that the sections of the Parole Act' dealing
with mandatory supervision are ultra vires the
power of Parliament on the grounds that they
deprive him of his liberty and impose upon him
"double punishment" contrary to the Canadian
' R.S.C. 1970, c. P-2, as amended.
Charter of Rights and Freedoms. 2
The relevant provisions of the Parole Act would
be sections 10 [as am. by S.C. 1976-77, c. 53, s.
25], 13 [rep. and sub. idem, s. 27 and as am. by
S.C. 1977-78, c. 22, s. 16], 15 [as am. by S.C.
1976-77, c. 53, s. 28], 16 [as am. idem, s. 29] and
20 [as am. idem, s. 31 ] 3 which deal with the
imposition of conditions of mandatory supervision
and the suspension and revocation in case of
breach of the conditions.
2 Part 1 of the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.).
3 10. (I) The Board may
(a) grant parole to an inmate, subject to any terms or
conditions it considers desirable, if the Board considers that
(i) in the case of a grant of parole other than day parole,
the inmate has derived the maximum benefit from
imprisonment,
(ii) the reform and rehabilitation of the inmate will be
aided by the grant of parole, and
(iii) the release of the inmate on parole would not consti
tute an undue risk to society;
(b) impose any terms and conditions that it considers desir
able in respect of an inmate who is subject to mandatory
supervision;
(d) grant discharge from parole to any paroled inmate,
except an inmate on day parole or a paroled inmate who was
sentenced to death or to imprisonment for life as a minimum
punishment; and
(e) in its discretion, revoke the parole of any paroled inmate
other than a paroled inmate to whom discharge from parole
has been granted, or revoke the parole of any person who is
in custody pursuant to a warrant issued under section 16
notwithstanding that his sentence has expired.
(2) The Board or any person designated by the Chairman
may terminate a temporary absence without escort granted to
an inmate pursuant to section 26.1 or 26.2 of the Penitentiary
Act or the day parole of any paroled inmate and, by a warrant
in writing, authorize the apprehension of the inmate and his
recommitment to custody as provided in this Act.
13. (1) The term of imprisonment of a paroled inmate shall,
while the parole remains unrevoked, be deemed to continue in
force until the expiration thereof according to law, and, in the
case of day parole, the paroled inmate shall be deemed to be
continuing to serve his term of imprisonment in the place of
confinement from which he was released on such parole.
(2) Until a parole is suspended or revoked, or a day parole is
terminated, or except in accordance with the terms and condi
tions of a day parole, the inmate is not liable to be imprisoned
by reason of his sentence, and he shall be allowed to go and
remain at large according to the terms and conditions of the
parole and subject to the provisions of this Act.
(3) Notwithstanding subsection (1), for the purposes of
subsection 52(2) of the Immigration Act, 1976, the term of
imprisonment of a paroled inmate, other than an inmate on day
parole, shall, while the parole remains unrevoked, be deemed to
be completed.
15. (1) Where an inmate is released from imprisonment,
prior to the expiration of his sentence according to law, solely
as a result of remission, including earned remission, and the
term of such remission exceeds sixty days, he shall, notwith
standing any other Act, be subject to mandatory supervision
commencing upon his release and continuing for the duration of
such remission.
(2) Paragraph 10(1)(e), section 11, section 13 and sections
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 supervi
sion were terms and conditions of his parole.
(3) Notwithstanding subsection (1), an inmate who may be
released subject to mandatory supervision may choose to
remain in the institution to complete his sentence, but such a
choice is not binding upon an inmate who subsequently chooses
to be released on mandatory supervision; any subsequent choice
to be released on mandatory supervision shall be respected as
soon as is reasonably possible, however, the inmate may not
require his release other than during the daylight hours of a
normal work week.
(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.
(5) This section applies in respect of persons who were
sentenced to imprisonment in or transferred to any class of
penitentiary on and after the first day of August, 1970.
16. (1) A member of the Board or a person designated by the
Chairman, when a breach of a term or condition of parole
occurs or when the Board or person is satisfied that it is
necessary or desirable to do so in order to prevent a breach of
any term or condition of parole or to protect society, may, by a
warrant in writing signed by him,
(a) suspend any parole other than a parole that has been
discharged;
(b) authorize the apprehension of a paroled inmate; and
(c) recommit an inmate to custody until the suspension of his
parole is cancelled or his parole is revoked.
(Continued on next page)
The plaintiff was first sentenced in May, 1977
for seven years. He was released on May 31, 1982
as a result of remission and pursuant to section 15
of the Parole Act, subject to mandatory supervi
sion until the expiration of his sentence.
On June 21, 1983 his release was suspended and
he was returned to custody at the Dorchester, N.B.
(Continued from previous page)
(2) The Board or a person designated by the Chairman may,
by a warrant in writing, transfer an inmate following his
recommitment to custody pursuant to paragraph (1)(c) to a
place where he is to be held in custody until the suspension of
his parole is cancelled or his parole is revoked.
(3) The person by whom a warrant is signed pursuant to
subsection (1) or any other person designated by the Chairman
for the purpose shall forthwith after the recommitment of the
paroled inmate named therein review the case and, within
fourteen days after the recommitment or such shorter period as
may be directed by the Board, either cancel the suspension or
refer the case to the Board.
(4) The Board shall, upon the referral to it of the case of a
paroled inmate whose parole has been suspended, review the
case and cause to be conducted all such inquiries in connection
therewith as it considers necessary, and forthwith upon comple
tion of such inquiries and its review it shall either cancel the
suspension or revoke the parole.
(5) An inmate who is in custody by virtue of this section shall
be deemed to be serving his sentence.
20. (1) Upon revocation of his parole, an inmate shall be
recommitted to the place of confinement from which he was
allowed to go and remain at large at the -time parole was
granted to him or to the corresponding place of confinement for
the territorial division within which he was apprehended.
(2) Subject to subsection (3), when any parole is revoked, the
paroled inmate shall, notwithstanding that he was sentenced or
granted parole prior to the coming into force of this subsection,
serve the portion of his term of imprisonment that remained
unexpired at the time he was granted parole, including any
statutory and earned remission, less
(a) any time spent on parole after the coming into force of
this subsection;
(b) any time during which his parole was suspended and he
was in custody;
(c) any remission earned after the coming into force of this
subsection and applicable to a period during which his parole
was suspended and he was in custody; and
(d) any earned remission that stood to his credit upon the
coming into force of this subsection.
(3) Subject to the regulations, the Board may recredit the
whole or any part of the statutory and earned remission that
stood to the credit of an inmate at the time he was granted
parole.
penitentiary on the ground that he had breached a
condition of mandatory supervision following a
charge against him on two counts of trafficking in
a narcotic. On September 22, 1983, he was con
victed of the charges and sentenced to six months,
"consecutive to the present sentence".
At a post-suspension interview held on June 28,
1983 the plaintiff was informed of the grounds of
his suspension. On July 5, 1983 he was afforded a
hearing in accordance with section 20 of the
Parole Regulations. 4 On October 7, 1983 the Na
tional Parole Board revoked his mandatory super
vision with no credit of remission and on October
11, 1983 he was informed of the reason, namely
his conviction of the two offences aforementioned.
By this action, the plaintiff effectively chal
lenges the constitutionality of the whole mandato
ry supervision system. His terse statement of claim
invokes no precise grounds and does not even refer
to the Charter. There are however four possible
sections of the Charter that could come into play
in this case: section 1 (freedom subject to reason
able limits), section 7 (liberty of person), section 9
(arbitrary detention), section 12 (cruel and unusu
al punishment).
Crown counsel, in a very comprehensive presen
tation, canvassed most of the relevant jurispru
dence in the matter under each of the four heads.
He also touched on paragraph 10(a) of the Chart-
er—the right of everyone to be informed promptly
on arrest of the reasons therefor—but there is no
evidence and no allegation that the plaintiff was
not properly informed of the reasons for his arrest
and detention.
I do not propose to review all the leading cases
under each of the four sections. That would be
beyond the scope of these reasons for judgment. I
will merely outline my conclusions and, where
necessary, refer to the authorities on which they
rest.
4 SOR/78-428 (rep. and sub. SOR/81-487, s. 2).
1—Guarantee of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
Before the implementation of mandatory super
vision in 1970, prisoners who had not been granted
parole were released directly into the Canadian
society without supervision, at times after having
served two-thirds of their sentence. Mandatory
supervision was introduced as a program to gradu
ally rehabilitate the prisoner, to control his behavi
our and to deter him from committing new crimes
with the threat of revocation. The prisoner has a
choice as to accepting mandatory supervision or
remaining incarcerated to the end of his sentence.
Prisoners resent that choice. They strongly feel
that their remission period should be free of cor
rectional control. They resent even more the loss of
remission for breach of condition. 5
Are mandatory supervision and the loss of
remission "reasonable limits" to be imposed upon
the freedom of the individual as can be
demonstrably justified in a democratic society?
In the first Supreme Court of Canada decision
on the Charter, Law Society of Upper Canada v.
Skapinker, 6 Estey J. on behalf of the Court deals
with section 1 of the Charter (at page 383 S.C.R.;
at page 200 N.R.) as "the final constitutional test
supporting the validity of s. 28(c) of the Law
Society Act" and notes that "a minimal record
was established to demonstrate the justification of
the citizenship requirement as a `reasonable limit'
on the rights granted by the Charter." The ma
terial in question was the report of a committee on
professional organizations in Ontario.
Several Canadian committees have identified in
their reports the need for a supervisory program
for prisoners. Two major committees prior to the
implementation of mandatory supervision, Fau -
5 Mandatory Supervision: A Discussion Paper, Report of the
Committee on Mandatory Supervision, March 1981.
6 [1984] 1 S.C.R. 357; 53 N.R. 169.
teux in 1956 and Ouimet in 1969, and two after,
Hugessen in 1972 and Goldenberg in 1974, all
endorsed some period of supervision in the commu
nity prior to the expiration of the sentence.
It is not for the Court to agree or disagree with
the merits of a program limiting the liberty of the
individual. It must consider whether such a pro
gram as legislated by Parliament has a rational
basis, whether it is within the bounds of reason
acceptable in a democratic state. That is the cru
cible in which the concept of reasonableness must
be tested. 7
It has been held that a limit imposed upon
liberty is reasonable if it is a proportionate means
for achieving the objective and not an error that
offends common sense. And in considering wheth
er legislation is within "reasonable limits", the
burden of proof rests on whoever claims the ben
efit of the exception. 8
I am not in a position to assess the value of the
mandatory supervision program and I have no
mandate to forecast its success or failure. It is not
for me to attempt such an appreciation. But the
mere fact that those who are directly affected by it
may not like it is not sufficient ground for holding
that the program has no rational basis, is unrea
sonable, undemocratic, disproportionate to its
objective, offends common sense, or is otherwise
unacceptable to a democratic society.
It is not unrealistic to assume that some form of
control and rehabilitation is indicated to assist
prisoners in their gradual re-entry into the commu
nity and that some type of safeguard is warranted
for the protection of that community. Mandatory
supervision is one method for achieving those goals
and the limitations it imposes are reasonable and
justifiable in a democratic society.
7 Federal Republic of Germany v. Rauca (1982), 38 O.R.
(2d) 705 (H.C.).
8 Quebec Association of Protestant School Boards et al. v.
Attorney-General of Quebec et al. (No. 2) (1982), 140 D.L.R.
(3d) 33 (Que. S.C.).
2—Section 7—Life, liberty and security of person
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.
That section is a restatement of what has been
the law of Canada since Confederation ' Funda
mental justice means justice and fairness. It has
been held that although a prisoner on parole may
only enjoy a conditional liberty, that is sufficient
to attract the constitutionally mandated protection
of section 7 and his parole may not be revoked
except in accordance with the principles of funda
mental justice, which include the right to an in-
person hearing. 10 Fundamental justice is a com-
pendious expression intended to guarantee the
basic right of citizens in a free society to a fair
procedure. " It has also been held that fundamen
tal justice is not restricted to matters of procedure
but extends to substantive law and that the Courts
are therefor called upon in construing section 7 to
have regard to the content of the legislation. 12
There is no indication that principles of funda
mental justice are disregarded in the Parole Act,
or unobserved in its application to the instant case.
All the procedural steps called for under the Act
and the Regulations were taken in due course. The
plaintiff did not point to any specific act or omis
sion that would be tainted with unfairness towards
him. To be sure, the plaintiff has been deprived of
his liberty, but there are no indications that the
deprivation was carried out otherwise then in
accordance with the principles of fundamental
justice.
3—Section 9—Detention or imprisonment
9. Everyone has the right not to be arbitrarily detained or
imprisoned.
The Parole Act or any legislation authorizing
the detention or imprisonment cannot grant a
power to be exercised unreasonably or without just
cause. It has been held that where an accused has
9 Re Regina and Potma (1982), 37 O.R. (2d) 189 (H.C.).
10 Regina v. Cadeddu (1982), 40 O.R. (2d) 128 (H.C.).
" Re Potma and The Queen (1983), 41 O.R. (2d) 43 (C.A.).
12 Reference Re S. 94(2) of Motor Vehicle Act, R.S.B.C.
1979, c. 288 (1983), 42 B.C.L.R. 364 (C.A.).
been detained lawfully by a competent authority
pursuant to a statutory provision, no arbitrary
detention occurs. "
The proscription against arbitrary detention in
section 9 is against detention without specific
authorization under existing law, or without refer
ence to an adequate determining principle or
standard. ' 4 The proscription is against a capricious
or arbitrary limitation of a person's liberty. 'S It
has been held that a deportation order made pur
suant to a statute of Parliament is the antithesis of
arbitrariness. 16 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."
But it is for the complainant to establish the
unreasonableness, or the arbitrariness, or the
capriciousness of the application of the statute to
his own case.
Those who are charged with the enforcement of
the Parole Act are given some discretion. Their
discretion is not unfettered. They must act fairly,
reasonably. They cannot re-incarcerate a prisoner
and take away his remission without good cause.
However, it seems obvious to me that the breach
ing of a key condition of the mandatory supervi
sion program by the commission of another crime
is good cause for triggering the application of the
Parole Act. It cannot be said that the plaintiff was
arbitrarily detained or imprisoned.
4—Section 12—Treatment or punishment
12. Everyone has the right not to be subject to any cruel and
unusual treatment or punishment.
An accepted standard for determining whether
the treatment is cruel and unusual is whether the
treatment is so excessive as to outrage standards of
13 R. v. Simon, [1982] 4 W.W.R. 71 (N.W.T.S.C.).
14 Regina v. Frankforth (1982), 70 C.C.C. (2d) 448 (B.C.
Cty Ct.).
"Re Jamieson and The Queen (1982), 70 C.C.C. (2d) 430
(Que. S.C.).
16 Hall v. Minister of Employment and Immigration,
Ontario S.C., May 26, 1983.
17 Re Mitchell and The Queen (1983), 42 O.R. (2d) 481
(H.C.).
decency and surpass all rational bounds of treat
ment or punishment. 18 The jurisprudence provides
three other criteria: (1) Is it in accord with public
standards of decency and propriety? (2) Is it un
necessary because of the existence of adequate
alternatives? (3) Can it be applied upon a rational
basis in accordance with ascertainable
standards? 19 Yet other criteria are useful: 20 (1) Is
it acceptable to a large segment of the population?
(2) Can it be applied on a national basis in accord
ance with ascertained standards? (3) Does it have
a social purpose? (4) Does it accord with public
standards of decency and propriety?
It is common knowledge that most industrialized
countries in the world boast of some type of parole
system which involves the possibility of re-incarce
ration. A program which includes that possibility
and the ensuing loss of remission, such as the one
in place in this country, cannot, in my view, be
described as outrageous, or excessive, or beyond
the rational bounds of morality. The fact that the
prisoner who has so breached the system loses his
remission cannot be said to be excessive or dispro
portionate. The Canadian mandatory supervision
program would appear to me to be in accord with
Canadian standards of decency and propriety. It
can be applied upon a rational basis in accordance
with ascertainable standards.
The plaintiff raised the argument of "double
punishment". It was also put forward by the
accused in R. v. DeBaie. 21 Because his mandatory
supervision was revoked as a result of other
offences DeBaie submitted on appeal that the con
victions constituted double punishment contrary to
paragraph 11(h) of the Charter. The Nova Scotia
Court of Appeal dismissed the appeal. Pace J.A.
said in conclusion as follows at page 79:
I can find absolutely no merit in these contentions. The
appellant had his mandatory supervision revoked because he
breached the conditions of his release. His subsequent trial and
punishment for the offences with which he had been charged is
IS Re Mitchell and The Queen, supra.
19 Soenen v. Edmonton Remand Centre Dir., [ 1984] 1
W.W.R. 71 (Alta. Q.B.).
30 Re Moore and The Queen (1984), 45 O.R. (2d) 3 (H.C.).
21 (1983), 60 N.S.R. (2d) 78 (C.A.).
not inconsistent with or in violation of his rights conferred by
the Charter of Rights and Freedoms, and I would therefore
dismiss the appeal.
For all of those reasons, I hold that the manda
tory supervision provisions of the Parole Act are
intro vires the powers of the Parliament of
Canada. The action is dismissed with costs.
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