Judgments

Decision Information

Decision Content

T-1863-86
Roger Compeau (Applicant)
v.
National Parole Board (Respondent)
INDEXED AS: COMPEAU V. CANADA (NATIONAL PAROLE BOARD)
Trial Division, Collier J.—Ottawa, September 18, 1986; May 21, 1987.
Constitutional law — Charter of Rights — Life, liberty and security — Applicant sentenced to 8 years' imprisonment, but eligible for release on mandatory supervision after five years — Prior to release, Parole Act, s. 15.4 coming into force — Board imposing, as condition precedent to mandatory supervi sion, release to community-based residential facility — Although deprived of liberty, deprivation not contrary to prin ciples of fundamental justice — Legislation not changing sentence imposed — Only conditions under which balance of sentence served affected — Canadian Charter of Rights and Freedoms, being Part 1 of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 7.
Constitutional law — Charter of Rights — Criminal pro cess — Applicant earning remission of sentence — Prior to release, Parole Act, s. 15.4 coming into force — Board imposing, as condition precedent to release, residence in com- munity-based residential facility — Charter, s. 11(i) giving person convicted of offence benefit of lower sentence when sentence varied between commission of offence and time of sentencing, not applicable — "Time of sentencing" when sen tence imposed — Canadian Charter of Rights and Freedoms, being Part 1 of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 11.
Parole — Parole Act, s. 15.4 (providing for imposition of conditions of release on mandatory supervision) coming into force after applicant imprisoned, but before release on manda tory supervision — Definition of "inmate" in s. 15.2 directing legislation to inmates imprisoned before impugned legislation coming into force — Enactment neither retroactive, nor retrospective — Parole Act, R.S.C. 1970, c. P-2, ss. 15.1 (as added by S.C. 1986, c. 42, s. 5), 15.2 (as added idem), 15.3 (as added idem), 15.4 (as added idem).
This is a motion for certiorari to quash a Parole Board decision that the applicant reside at a community-based resi-
dential facility as a condition of his release on mandatory supervision. The applicant was sentenced to eight years' impris onment, but by earning remission, he was entitled to be released on mandatory supervision after five years. Prior to such release, section 15.4 (which permitted the Board to impose, as a condition of release on mandatory supervision, residence in a community-based residential facility) was added to the Parole Act. The applicant argued that section 15.4 does not apply to prisoners sentenced prior to its enactment. It was also argued that section 15.4 effectively increases an inmate's detention which is contrary to the Charter, sections 7 and 11(i).
Held, the application should be dismissed.
The impugned legislation, by its own terms, is directed to inmates imprisoned before it came into force, as well as those imprisoned after. "Inmate" is defined in subsection 15.2(1) as "a person sentenced to imprisonment in ... penitentiary before or after the coming into force of this section." In Re Evans and The Queen, the Ontario Court of Appeal held that the legisla tion is neither retroactive nor retrospective, although it does apply to inmates imprisoned before it came into force.
The legislation does not increase the applicant's sentence. The reasons for judgment in the Evans case again apply. Although the inmate is deprived of his liberty, such deprivation is not in breach of the "principle of fundamental justice". The additions to the Parole Act simply change the manner or condition under which certain inmates must serve the balance of their sentences.
Paragraph 11(i) of the Charter gives a person convicted of an offence the benefit of the lower sentence when the punishment has been varied between the time of commission of the offence and the time of sentencing. "The time of sentencing" means the time at which sentence was imposed, and not any time up to the expiry of the full sentence term.
CASES JUDICIALLY CONSIDERED APPLIED:
Re Evans and The Queen (1986), 30 C.C.C. (3d) 313; (1987), 18 O.A.C. 236; 55 C.R. (3d) 285 (C.A.).
CONSIDERED:
Ross v. Kent Inst. (1987), 12 B.C.L.R. (2d) 145 (C.A.); rev'g Ross v. Warden of Kent Inst. and Nat. Parole Bd., [1987] B.C.W.L.D. 467.
REFERRED TO:
Re Moore and The Queen (1983), 147 D.L.R. (3d) 528 (Ont. C.A.); aff'd [1983] 1 S.C.R. 658.
COUNSEL:
Fergus J. O'Connor for applicant.
I. G. Whitehall, Q.C. and Denise C. Walter
for respondent.
SOLICITORS:
O'Connor, Ecclestone & Kaiser, Kingston, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
COLLIER J.: The original motion in this matter, dated August 7, 1986, was filed on August 15, 1986. It was for relief in the nature of prohibition. The applicant sought to prohibit the respondent Parole Board from proceeding with a hearing pur suant to section 15.4 of the Parole Act [R.S.C. 1970, c. P-2]. Section 15.4 was added by S.C. 1986, c. 42, s. 5 effective July 25, 1986.
By the time this motion came on, the Board hearing had been held (August 25), and a decision made (August 28, 1986).
The parties agreed the present motion should now be treated as one, in the nature of certiorari, to quash the Board decision.
I turn to the facts.
On April 3, 1981 the applicant was sentenced to eight years imprisonment in respect of certain criminal offences.
Pursuant to the then existing legislation, the applicant earned remission. He was entitled, under the former system, to be released on mandatory supervision on August 12, 1986; he would have had his freedom, subject to mandatory supervision, until the expiry date of his original eight-year sentence.
The Parole Act was amended, effective July 25, 1986. The material additions were sections 15.1 [as added by S.C. 1986, c. 42, s. 5], 15.2 [as added idem], 15.3 [as added idem] and 15.4 [as added idem].
The effect of the new legislation was to permit the Parole Board, after a hearing, to do several things in respect of an inmate who was to be released before the expiration of his full sentence. The Board could direct the inmate not be released until the expiration of that sentence. Alternatively, the Board could impose, as one of the conditions of release on mandatory supervision, the inmate reside in a "community-based residential facility".
I set out subsection 15.4(4):
15.4 ...
(4) On completion of the hearing and review of the case of an inmate pursuant to this section, where the Board is satisfied that the inmate is likely to commit, prior to the expiration according to law of the sentence the inmate is then serving, an offence causing the death of or serious harm to another person, the Board may, by order,
(a) direct that the inmate shall not be released from impris onment prior to the expiration according to law of the sentence the inmate is serving at the time the order is made, or
(b) impose, subject to subsection (5), as one of the condi tions of the release on mandatory supervision of the inmate, residence in a community-based residential facility,
and where the Board is not so satisfied, the Board shall make an order declaring whether, at the time the case was referred to the Board, the inmate was serving a term of imprisonment that included a sentence imposed in respect of an offence mentioned in the schedule that had been prosecuted by indictment and whether, in its opinion, the commission of the offence caused the death of or serious harm to another person.
Mr. Compeau's case was referred by the Com missioner of Corrections pursuant to subsection 15.3(3) of the Parole Act.
An interim hearing was held by the Parole Board on August 8, 1986. The applicant and his counsel were present, but they left before the hearing was completed, serving the prohibition motion.
The "regular" hearing was held on August 25, 1986. The applicant and his counsel attended. On August 28, 1986, the Board ordered the applicant reside at St. Leonard's Home in Hamilton, a com- munity-based residential facility, as a condition of his release on mandatory supervision. Certain other conditions were, as well, imposed.
It is that decision that is now attacked by way of certiorari.
Mr. O'Connor, counsel for the applicant, sub mitted that section 15.4 of the Parole Act cannot validly apply to prisoners sentenced prior to its enactment in July, 1986. The submission ran fur ther: the applicant, and others like him, had been sentenced before the new legislation; at that time, the applicant was entitled to earn remission and gain release from any kind of custody, subject to mandatory supervision, after serving approximate ly two-thirds of his sentence; it was not competent for Parliament to empower the Board to, in effect, increase the inmate's detention in custody, or in a community-based residential centre. Sections 7 and 11(i) of the Charter [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.)] were said to apply.
Those submissions can, to my mind, be broken down.
I shall deal first with whether section 15.4 valid ly applies to the applicant here.
There is no doubt the impugned legislation, by its own terms, is directed to inmates imprisoned before it came into force, as well as those impris oned after it came into force. (See the meaning of "inmate" in subsection 15.2(1):
15.2(1) ...
"inmate" means a person sentenced to imprisonment in or transferred to any class of penitentiary before or after the coming into force of this section;)
I concur with what was said by the Ontario Court of Appeal in Re Evans and The Queen (1986), 30 C.C.C. (3d) 313; (1987), 18 O.A.C. 236; 55 C.R. (3d) 285, at pages 315 C.C.C.; 237 O.A.C.; 287 C.R.:
This legislation is specifically made applicable to inmates who were imprisoned before it came into force (s. 15.2) and clearly brings within its purview inmates who were in the process of earning remission time when the new law came into effect. We agree with Smith J. that Parliament's intention was clearly expressed and, in our opinion, the enactment cannot be viewed as being either retroactive or retrospective legislation.
Mr. O'Connor contended the effect of the legis lation, if it purported to entrap the applicant, was to increase his sentence from what was, for practi cal purposes, approximately a little over five years, to eight years. I do not agree with that argument. The applicant's sentence was for eight years. Under the pre-1986 procedure he was entitled to release from custody, on "to the street" so to speak, subject to mandatory supervision. But the sentence or penalty, in fact, remained unchanged. It was eight years, not five + years.
The legislation does not, to my mind, permit the imposition by the Parole Board, of an additional sentence or penalty. All it provides for is, depend ing on the particular case, an inmate will either serve his full term sentence in custody, or be released, on mandatory supervision, in a communi- ty-based residential facility. Albeit, the latter still a form of custody.
For the applicant, it was argued section 15.4 offended section 7 of the Charter:
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.
The effect of section 15.4 was, it was said,
... to increase substantially the consequences of a conviction and sentence previously imposed by a Court of competent jurisdiction. It is therefore contrary to ... the Rule of Law. Thus, it is contrary to the principles of fundamental justice and in violation of section 7 ....
A similar contention was put forward in the Evans case. The Ontario Court of Appeal dealt
with the matter at pages 315-316 C.C.C.; 237-238 O.A.C.; 287-288 C.R.:
The main issue on this appeal is whether the appellant has been deprived of the constitutional right guaranteed to him by s. 7 of the Canadian Charter of Rights and Freedoms, as a result of the amendments to the Parole Act effected by the enactment of Bills C-67 and C-68 in July, 1986. Prior to the passage of this enactment, inmates who had served their sen tence less earned remission (or statutory remission if appli cable) were automatically released from their place of incarcer ation subject to mandatory supervision. Now, an inmate who was sentenced to imprisonment before the coming into effect of the amendments is no longer automatically entitled to be released on mandatory supervision.
The Crown concedes that a decision made by the Parole Board under s. 15.4(4)(a) or (b) of the Parole Act directing that an inmate not be released before the expiration of his sentence, or imposing conditions for his release as therein provided, deprives an inmate of his right to "liberty" within the meaning of s. 7 of the Charter. The question is whether that deprivation is in breach of the "principle of fundamental jus tice". In our opinion, it is not. The sections of the Parole Act in issue simply give the Parole Board the power to change the degree of supervision required in the case of those inmates referred to it pursuant to the Act when the Board is satisfied (s. 15.4(4)(a) or (b)) that the inmate is likely to commit, prior to the expiration of the sentence he is then serving, an offence causing the death of or serious harm to another person. These sections do not change the sentence imposed on the inmate by the court that convicted him and, consequently, do not impose an additional penalty. In our opinion, they do no more than change the manner or condition under which certain inmates must serve the balance of their sentence.
The scheme adopted by Parliament to achieve the objective of protecting the public against inmates likely to cause death or serious harm cannot, in our opinion, be said to violate the appellant's constitutional right not to be deprived of his liberty except in accordance with the principles of fundamental justice.
I adopt those reasons and conclusions.
Mr. O'Connor drew to my attention a decision, given January 7, 1987, of Meredith J. of the Supreme Court of British Columbia: Ross v. Warden of Kent Inst. and Nat. Parole Bd., [[1987] B.C.W.L.D. 467]. Meredith J. did not agree with the Evans decision. He found the amendments violated section 7 of the Charter. He relied on Re Moore and The Queen (1983), 147 D.L.R. (3d) 528 (Ont. C.A.), and at page 538 (S.C.C.) [[1983] 1 S.C.R. 658]. Meredith J.
pointed out the Moore case had not been men tioned in the Evans case.
The decision of Meredith J., was, however, on March 3, 1987, reversed by the British Columbia Court of Appeal (Ross v. Kent Inst. (1987), 12 B.C.L.R. (2d) 145). The appeal court considered both the Moore case and the Evans case. The Court was, as I understand its reasons, more con cerned with the procedural safeguards set out in sections 15.1 to 15.4 and Regulation 17(5), than the contention advanced in this case and the Evans case.
All that said, the British Columbia Court found the legislation under attack did not run afoul of the Charter.
There remains the submission in respect of para graph 11(i) of the Charter:
11. Any person charged with an offence has the right
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
It was once more contended the sentence in custody here was, for practical purposes, a little over five years; it can now be, in effect, varied to eight years. For my reasons earlier given, I do not accept that submission.
Mr. O'Connor agreed if "sentencing" means the time of imposition of sentence, then paragraph 11(i) has no application. If "sentencing" includes serving the sentence to its conclusion, then the sentencing of the applicant is underway; the sen tence has in effect been altered; the applicant is entitled to the lesser punishment.
Paragraph 11(i), as I see it, is quite clear. The time of sentencing means the time at which the sentence was imposed, here April 3, 1981, not any time up to April 2, 1989. Paragraph 11(i) has, therefore, no application.
The motion for relief by way of certiorari is dismissed, without costs.
 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.