T-406-86
Paul Thomas Bryntwick (Petitioner)
v.
Canadian National Parole Board (Respondent)
INDEXED AS: BRYNTWICK V. CANADA (NATIONAL PAROLE
BOARD)
Trial Division, Dubé J. -Montréal, November 12
and 25; Ottawa, December 18, 1986.
Parole - Parole condition prohibiting association with
criminals or those thought to have record - Neither condition
nor Parole Act s. 10(1)(a), pursuant to which imposed, in
violation of Charter - Parole Act, R.S.C. 1970, c. P-2, s.
10(1)(a).
Constitutional law - Charter of Rights - Fundamental
freedoms - Freedom of association - Parole condition pro
hibiting association with criminals curtailing freedom of asso
ciation but constituting reasonable limit demonstrably justi
fied in free and democratic society - 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,
2(d), 6(2)(a),(b), 7, 24(1) - Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), s. 52(1).
Constitutional law - Charter of Rights - Mobility rights
- Parole condition prohibiting association with criminals not
violating Charter right to pursue gaining of livelihood
Charter s. 6(2)(b) not establishing right to work separate and
distinct from mobility provision - 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,
2(d), 6(2)(a),(b), 7, 24(1) - Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), s. 52(I).
Constitutional law - Charter of Rights - Life, liberty and
security - Parole condition prohibiting association with
criminals not in violation of Charter s. 7 as not contrary to
principles of fundamental justice and as not patently unrea
sonable - Condition not so imprecise, vague and contradicto
ry as to be incapable of being rationally understood or
enforced - 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, 2(d), 6(2)(a),(b), 7, 24(1) - Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), s. 52(1).
While the petitioner was on parole, he met by chance with an
ex-accomplice and had a meal with him. Notified of the
incident, the National Parole Board added a special condition
to the petitioner's parole prohibiting any non-fortuitous associa
tion with any criminal or with any person who "you think
might have a criminal record".
The petitioner attacks this decision by an application for a
writ of certiorari or other remedies pursuant to subsection
24(1) of the Charter. In essence, the petitioner alleges that the
condition itself, the decision by which it was imposed and the
statutory provision which authorized it are in violation of
various Charter rights.
Held, the application should be denied.
The argument that paragraph 10(1)(a) of the Parole Act is
so arbitrary or unreasonable as to fall outside the exception
created by section 1 of the Charter cannot be considered until it
has been determined that a specific section of the Charter has
been violated, in which case the onus shifts to the respondent to
show that the violation was demonstrably justified in a free and
democratic society.
It had not been established that, in making the decision,
Charter section 7 was infringed since there was no procedural
or substantive violation of the principles of fundamental justice.
Furthermore, the Board's decision was not so patently unrea
sonable as to justify judicial review. Nor was the condition in
violation of that section by reason of being so imprecise, vague
and contradictory as to be incapable of being rationally under
stood or enforced. It is reasonably and necessarily related to the
interests of the community and represents an additional safe
guard for the parolee in his progress towards full rehabilitation.
The argument, based on paragraph 6(2)(b) of the Charter,
that the condition would bar the petitioner from accepting
employment with an employer where any employee has a
criminal record, cannot stand. Paragraph 6(2)(b) does not
establish a right to work separate and distinct from the mobility
provision in which it is found.
While the petitioner's right to associate freely has been
curtailed, the courts have clearly established that such condi
tions are patently reasonable and impose no excessive restric
tions. The special condition in this case has a rational basis and
is demonstrably justified in a free and democratic society.
CASES JUDICIALLY CONSIDERED
APPLIED:
Blanchard v. Control Data Canada Ltd. et al., [1984] 2
S.C.R. 476; (1985), 55 N.R. 194; Canadian Union of
Public Employees, Local 963 v. New Brunswick Liquor
Corporation, [1979] 2 S.C.R. 227; (1979), 25 N.B.R.
(2d) 237; (1979), 51 A.P.R. 237; 97 D.L.R. (3d) 417;
(1979), 26 N.R. 341; 79 CLLC 14,209; Jacmain v.
Attorney General (Can.) et al., [1978] 2 S.C.R. 15;
(1978), 18 N.R. 361; Re Conroy and The Queen (1983),
42 O.R. (2d) 342 (H.C.); William Mac Allister v. Le
Directeur du Centre régional de réception et al., judg
ment dated February 10, 1986, Quebec Superior Court,
700-38-000015-862, 500-36-000067-861, not reported;
Belliveau v. The Queen, [1984] 2 F.C. 384; 13 C.C.C.
(3d) 138 (T.D.); Birzon v. King, 469 F. 2d 1241 (2nd Cir.
1972); U.S. v. Albanese, 554 F. 2d 543 (2nd Cir. 1977);
Malone v. U.S., 502 F. 2d 554 (9th Cir. 1974); Law
Society of Upper Canada v. Skapinker, [1984] 1 S.C.R.
357; 11 C.C.C. (3d) 481.
REFERRED TO:
R. v. Cadeddu (1982), 146 D.L.R. (3d) 629; 32 C.R.
(3d) 355; 3 C.R.R. 312 (Ont. S.C.); Cadieux v. Director
of Mountain Institution, [1985] 1 F.C. 378; (1984), 41
C.R. (3d) 30 (T.D.); Latham v. Solicitor General of
Canada, [1984] 2 F.C. 734; 39 C.R. (3d) 78 (T.D.); Ford
v. National Parole Board, [1977] 1 F.C. 359; (1976), 33
C.C.C. (2d) 230 (T.D.); Regina v. Oakes (1983), 40 O.R.
(2d) 660 (C.A.); Luscher v. Deputy Minister, Revenue
Canada, Customs and Excise, [1985] 1 F.C. 85; 45 C.R.
(3d) 81 (C.A.); R. v. Neale (1985), 46 C.R. (3d) 366
(Alta. Dist. Ct.); Bolling v. Sharpe, 347 U.S. 497; 98
L Ed 884; 74 S. Ct. 693 (1954); Howard v. Stony
Mountain Institution, [1984] 2 F.C. 642; (1985), 45 C.R.
(3d) 242 (C.A.); Re B.C. Motor Vehicle Act, [1985] 2
S.C.R. 486; Reich v. (Alta.) College of Physicians and
Surgeons (1984), 31 Alta. L.R. (2d) 205; 53 A.R. 325; 8
D.L.R. (4th) 696; 9 C.R.R. 90 (Q.B.).
COUNSEL:
Daniel Rock for petitioner.
David Lucas for respondent.
SOLICITORS:
Duceppe, Beaudry, Jolicœur, Marquis &
Associés, Montréal, for petitioner.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
DUBÉ J.: This application is for the issuance of a
writ of certiorari or other remedies pursuant to
subsection 24(1) 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 petitioner was sentenced in November,
1977 and February, 1982 for two five year terms
and one six year term of imprisonment for posses
sion of stolen property, breaking and entering,
illegal possession of instruments and similar
crimes, with the last sentence to terminate on
February 25, 1987. On June 6, 1984, he was
granted day parole for six months and on Decem-
ber 7, 1984, full parole.
According to his own affidavit, on October 7,
1985, the petitioner met by chance Mr. Ronald
McCann, an ex-accomplice, who invited him for
supper at the Shangrila Hotel in Montréal. During
the course of the early evening the Municipal
Police arrived at the hotel in response to an official
complaint registered by the hotel. Both men were
questioned and later released.
Still according to his affidavit, during the course
of a regular bimonthly interview with his parole
supervisor held three days later, the petitioner
informed her of the above incident at the Shan-
grila Hotel. On October 18, 1985, at the request of
the supervisor, he attended at the parole office and
brought with him his attorney. In the course of the
interview, the parole supervisor acknowledged that
the petitioner was not in breach of any term or
condition governing his parole, but stated that the
incident still warranted an official report and
recommendation to the National Parole Board to
the effect that further restrictive conditions be
imposed upon him.
Subsequently, the attorney requested a copy of
the report sent to the Board, but was informed that
the Parole Service could not comply with that
request and that he could address himself to the
Regional Coordinator of Access to Government
Information to obtain that document. He was fur
ther informed that he would be advised in writing
by the Board of the reasons justifying the review of
his case and would be given the opportunity to
submit his representations.
On November 15, 1985 he was advised by a
letter signed by the Regional Manager, Case
Supervision, National Parole Board that the Board
intended to add a special condition to his parole
which would read as follows:
Prohibition from any non fortuitous meetings or communica
tions with people having a criminal record or with whom you
think might have a criminal record.
He was given fifteen days in which to submit his
response, if any.
In a second letter received by the petitioner on
November 18, 1985 he was advised, as follows, as
to why the Board felt that the special condition
was warranted:
REASONS: —your recent predicament, that is that you were
found in company of Mr. Ronald McCann a
former accomplice;
—the fact that during your previous parole which
was revoked in March, 1982, you recidivated by
committing a crime, while in the company of
individuals who had a criminal record;
SPECIAL Prohibition from any non fortuitous meeting or
CONDITION communication with people having a criminal
record or with whom you think might have a
criminal record;
After failing to obtain further delay, the peti
tioner's attorney responded by way of a letter
including essentially the same four legal argu
ments in support of the instant motion with which
I will deal later.
Before I do so, I must first dispose of the
petitioner's preliminary submission to the effect
that the parole supervisor did not deal fairly with
him. Basically, the petitioner claims that the
report submitted by the parole supervisor to the
Board was incoherent and unfair to him, mostly
because it was prepared by her before she had even
received the police report on the Hotel Shangrila
incident and also because her report did not corre
spond fairly to the circumstances of the case.
At my request, the police report was produced
at the hearing. I saw no major discrepancies be
tween it and the report prepared by the parole
supervisor for the attention of the Board. She had
actually prepared her report before receiving the
written police report because she had already
obtained from telephone conversations with the
police most of the information she needed.
It must be borne in mind that the parole super
visor is not an employee of the Board and that the
latter has access to other sources of information,
including the police. Moreover, the petitioner was
afforded the opportunity to make his representa
tions to the Board. His attorney filed the legal
arguments above referred to, mostly in response to
the reasons for imposing the condition, but did not
argue that the Board breached its duty to act
fairly. I therefore move on to the four legal
arguments.
1. Section 10(1)(a) of the Parole Act is offensive to section 1 of
the Canadian Charter of Rights and Freedoms and is of no
force or effect to the extent of that inconsistency by reason of
section 52(1) of the Constitution Act, 1982 [Schedule B,
Canada Act 1982, 1982, c. 1 l (U.K.)].
Paragraph 10(1)(a) of the Parole Act' reads as
follows:
10. (1) The Board may
(a) grant parole to an inmate, subject to any terms or
conditions it considers desirable, if the Board considers that
Section 1 of the Charter guarantees 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". Subsection 52(1) of the Constitution Act
establishes the primacy of the Constitution and
stipulates that "any law that is inconsistent with
the provisions of the Constitution is, to the extent
of the inconsistency, of no force or effect".
Essentially, the petitioner argues that there
always remains a continuum of rights and free
doms guaranteed and protected in the cycle of
defendant—prisoner—parolee—free citizen, which
rights and freedoms are constricted or enlarged in
proportion to the individual's status at any given
moment during that cycle: thus, even as a parolee,
he retains the residue of such rights as are protect
ed by the Charter. He is still free to enjoy all the
civil rights of a person, save those that are taken
away.
R.S.C. 1970, c. P-2.
Thus in R. v. Cadeddu 2 it was held that "the
applicant could not be lawfully deprived of his
liberty without being given the opportunity for an
in-person hearing before his parole was revoked".
In Cadieux v. Director of Mountain
Institution,' the prisoner, under an unescorted
temporary absence, had his program cancelled by
reason of a confidential report which the Board
refused to share with him. The Court held [at
pages 401 F.C.; 52 C.R.] it did "not think that
non-disclosure of the gist of the case against the
applicant can be justified on the basis or a claim
for a class exemption".
In Latham v. Solicitor General of Canada, 4 an
inmate who had his day parole revoked by the
Board obtained relief from the Court on the
ground that the Board failed to notify him ade
quately of the reasons for the revocation of his day
parole. The Court said [at pages 748 F.C.; 91
C.R.] that "A law which purports to deny even
this is not a reasonable limitation within the mean
ing of section 1 of the Charter of the rights
guaranteed in section 7 thereof."
The petitioner goes on to say that, as an inmate,
he had a statutory right to apply for parole by
reason of the Parole Act and Regulations (see
Ford v. National Parole Board), 5 thus when the
decision to grant parole was rendered in the affir
mative he acquired at that very moment a vested
right to be lawfully at large among society; any
incursions upon those vested rights and freedoms
must necessarily fall within the field of exception
of section 1 of the Charter.
In bald terms, the petitioner submits that it is
not the legitimate purpose of paragraph 10(1)(a)
of the Parole Act that is here in question, but
rather the threshold determination as to whether
such statute, as written, falls within the field of
2 (1982), 146 D.L.R. (3d) 629, at pp. 641-642; 32 C.R. (3d)
355, at p. 369; 3 C.R.R. 312, at p. 323 (Ont. S.C.).
3 [1985] 1 F.C. 378; (1984), 41 C.R. (3d) 30 (T.D.).
4 [1984] 2 F.C. 734; 39 C.R. (3d) 78 (T.D.).
5 [1977] 1 F.C. 359; (1976), 33 C.C.C. (2d) 230 (T.D.).
exception of section 1. He submits that a statutory
provision which is as arbitrary or unreasonable as
paragraph 10(1)(a) of the Parole Act, as appli
cable to this case, falls outside the exception.
The petitioner relies on Regina v. Oakes 6 for the
proposition that all laws passed by Parliament as
well as all rights and freedoms guaranteed by the
Charter are tempered by the stipulation of section
1. He also relies on the judgment of Hugessen J. in
Luscher v. Deputy Minister, Revenue Canada,
Customs and Excise' for the principle that [at
pages 89 F.C.; 85 C.R.] "A limit which is vague,
ambiguous, uncertain, or subject to discretionary
determination is, by that fact alone, an unreason
able limit." He argues that the words "subject to
any terms or conditions it considers desirable" are
not sufficiently clear and subject the rights and
freedoms of a parolee solely and totally to the
discretionary determination of the Board.
According to the petitioner, those words set no
limit upon the Board as to the power it may choose
to exert: those words purport to posit upon the
Board the power to deny totally any or all of the
rights and freedoms guaranteed by the Charter,
thus placing the Board beyond the purview of
section 1 of the Charter and placing a parolee
outside the shelter. The petitioner submits that, by
this fact alone, paragraph 10(1)(a) is rendered
inoperative, to the extent of that inconsistency, by
subsection 52(1) of the Constitution Act, 1982.
In my view, the petitioner's first legal argument
begs the question. It raises two fundamental
points: firstly, does paragraph 10(1)(a) of the
Parole Act violate any specific section of the
Charter?; secondly, if it does, then the onus shifts
and the respondent must show pursuant to section
1 of the Charter that the paragraph imposes a
reasonable limit prescribed by law as can be
demonstrably justified in a free and democratic
society (see Regina v. Oakes, 8 at page 114). In
other words, the other three legal arguments must
6 (1983), 40 O.R. (2d) 660 (C.A.).
[1985] 1 F.C. 85; 45 C.R. (3d) 81 (C.A.).
8 Supra at [footnote] 6.
be considered before I attempt to resolve the issues
encompassed by section 1 of the Charter.
2. The decision to impose the special condition upon Petitioner
as of the 8 January 1986, is null and void by reason of section
7 of the Charter.
Section 7 of the Charter reads 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.
The petitioner submits that any further incur
sion upon his parole status may be so done only in
accordance with section 7 of the Charter. Relying
again on R. v. Cadeddu, 9 he points out that he as
well had "a conditional or qualified liberty to be at
large" and that the Board "could revoke the appli
cant's parole only in accordance with the principles
of fundamental justice".
Relying on R. v. Neale, 10 he suggests that the
word "deprivation" in section 7 "is not limited to
the complete loss or absolute denial of the right to
life, liberty and security of the person, but includes
its mere infringement". He quotes Bolling v.
Sharpe" for the proposition that "liberty under
law extends to the full range of conduct which the
individual is free to pursue".
In the petitioner's view, the Board manifestly
increased the threat of punishment to him by
broadening the terms and conditions governing his
parole, for breach of which he can be reincarcerat-
ed. He does not ground his complaint upon the
procedural aspects of the principles of fundamen
tal justice, but seeks the application of the substan
tive standards of the principles of fundamental
justice as well as the procedural ones. He submits
that the growing opinion within the judiciary and
the legal community has been one that tends to
9 Supra at [footnote] 2.
10 (1985), 46 C.R. (3d) 366 (Alta. Dist. Ct.), at p. 376.
" 347 U.S. 497, at p. 499; 98 L Ed 884, at p. 887; 74 S. Ct.
693 (1954), at p. 694.
include the concept that the phrase "principles of
fundamental justice" found in section 1 of the
Charter embraces a substantive content as well as
the recognized procedural aspect. He quotes
Professor David P. Jones from his work Principles
of Administration Law' as follows:
This phrase (the principles of fundamental justice) is borrowed
from the earlier Canadian Bill of Rights and undoubtedly was
intended to elevate the procedural aspects of natural justice to
constitutional status in any matters dealing with life, liberty
and security of the person.
First, the very words used in section 7 are not restricted to
procedural matters, but are equally capable of referring to
substantive circumstances in which it would be fundamentally
"unjust" to deprive someone of life, liberty or security of the
person.
(Secondly) the United States courts have interpreted these
two amendments to require not only procedural fairness but
also "substantive due process" in certain circumstances. [My
underlining.]
According to the petitioner, the certain circum
stances of this case include the singular legal fact
that the decision to impose the special condition
upon him is not subject to appeal or review and is
therefore final, binding and conclusive.
He equally refers to an obiter dictum of the
Federal Court of Appeal in Howard v. Stony
Mountain Institution " to the effect that the words
"in accordance with the principles of fundamental
justice" may possibly "refer or embrace substan
tive standards as well" and claims that no adminis
trative tribunal, to whom Parliament has delegated
authority, can itself be beyond the reaches of the
Charter.
In the Supreme Court of Canada decision in Re
B.C. Motor Vehicle Act, 14 Lamer J. dealt with the
significance of the principles of fundamental jus
tice and said (at page 501) that these principles
are "not a protected interest, but rather a qualifier
of the right not to be deprived of life, liberty and
security of the person". Further down he held that
"As a qualifier, the phrase serves to establish the
12 Carswell, 1985, at p. 192-193.
13 [1984] 2 F.C. 642, at p. 661; (1985), 45 C.R. (3d) 242, at
p. 261 (C.A.).
14 [l985 ] 2 S.C.R. 486.
parameters of the interests." He also expressed the
view that "it would be wrong to interpret the 'term
fundamental justice' as being synonymous with
natural justice". He found (at page 503) that the
principles "are to be found in the basic tenets of
our legal system".
I cannot find, in this instance, that the condition
imposed upon the petitioner was not in accordance
with the principles of fundamental justice. To be
sure, the condition represents a further incursion
upon his freedom, but it was imposed in accord
ance with the basic tenets of our legal system. The
petitioner has not established any procedural or
substantive violation. He was given full opportu
nity to meet the case that was placed before the
Board and indeed, through his solicitor, filed writ
ten representations which representations, again,
dealt with general principles of law but did not
establish any breach of the principles of funda
mental justice by the Board in the petitioner's
case.
In Blanchard v. Control Data Canada Ltd. et
al., 15 the Supreme Court of Canada dealt with the
problem of the extent of judicial review of the
decisions of administrative boards. Lamer J. found
(at pages 487 S.C.R.; 207 N.R.) that the proper
question to put in that case was whether the award
made by the arbitrator was "so patently unreason
able that its construction cannot be rationally sup
ported by the relevant legislation and demands
intervention by the court upon review". That test
was first imposed by the Supreme Court of
Canada in Canadian Union of Public Employees,
Local 963 v. New Brunswick Liquor
Corporation. 16 He further held (at pages 489
S.C.R.; 209 N.R.) that the Courts "should only
intervene if they find a genuine excess of jurisdic
tion by the arbitrator, not simply where they disa
gree with his findings". Quoting Dickson J. [as he
then was] in Jacmain v. Attorney General (Can.).
et al.," he added (at pages 490 S.C.R.; 211 N.R.)
15 [1984] 2 S.C.R. 476; (1985), 55 N.R. 194.
16 [1979] 2 S.C.R. 227; (1979), 25 N.B.R. (2d) 237; (1979),
51 A.P.R. 237; 97 D.L.R. (3d) 417; (1979), 26 N.R. 341; 79
CLLC 14,209.
17 [1978] 2 S.C.R. 15; (1978), 18 N.R. 361.
that "the error must be manifest". The role of the
Court is one of review not trial de novo.
Under the circumstances of the instant case, I
cannot find that the Board was patently unreason
able in prohibiting the petitioner from meeting
with people with a criminal record. In Re Conroy
and The Queen's the Court held that if the Board
can impose any reasonable condition it deems
desirable at the outset of the parole, it may do so
again "when a change in circumstances [so] dic
tates". The Board, in my view, had full authority
to decide as it did under the Act and the condition
imposed is not obviously so unreasonable as to
constitute an excess of jurisdiction.
3. The said special condition is null, void and of no force or
effect before the law by reason of section 7 of the Charter in
that it is so imprecise, vague and contradictory as to be
incapable of being rationally understood or enforced.
The petitioner returns to the Luscher 19 case
which applied the "void-for-vagueness" principle
to a legislated statute in these words (at pages
89-90 F.C.; 85 C.R.):
Uncertainty and vagueness are constitutional vices when they
are used to restrain constitutionally protected rights and free
doms. While there can never be absolute certainty, a limitation
of a guaranteed right must be such as to allow a very high
degree of predictability of the legal consequences.
The petitioner submits that the Board, by
imposing conditions of parole, in effect establishes
prescriptions of law by way of enabling legislation
and any such condition is therefore submissive to
the Charter. Such condition must be 'sufficiently
clear, precise and definite so as to afford the
petitioner fair and proper notice as to what acts or
conduct are prohibited upon pain of punishment.
Secondly, the condition must be worded in suf
ficiently specific terms so as to adequately safe
guard against arbitrary and discriminatory
enforcement.
18 (1983), 42 O.R. (2d) 342 (H.C.).
19 Supra at [footnote] 7.
It is the petitioner's contention that upon the
plain face of the condition, if he were to have "any
non-fortuitous meetings or communications with
people having a criminal record", whether the
petitioner was aware or not that the individual had
been convicted of a criminal offence in the past, he
would be in breach of his parole and liable to
immediate reincarceration at the loss of his earned
remission. He claims that the addendum "or whom
you think might have a criminal record", is even
more irrational, vague and arbitrary, according to
the petitioner.
The petitioner concedes he was given an inter
pretation of the special condition but he says that
the only legal document before the law is the
parole certificate which bears the condition, not
the interpretation. Bearing in mind that the Board
alone has the lawful authority by way of para
graph 10(1)(a) of the Act to impose conditions of
parole, he enquires what weight the purported
interpretation would have before an officer of the
peace, a court of law or the parole authorities
themselves.
The petitioner therefore invites the Court to
conclude that the special condition is null, void and
of no force by reason of section 7 of the Charter in
that it is not sufficiently clear, precise and definite
so as to afford the petitioner fair and proper notice
as to what acts or conduct are prohibited and,
further does not adequately safeguard against
arbitrary and discriminatory enforcement.
In William Mac Allister v. Le Directeur du
Centre régional de réception et a/., 2 ° the Quebec
Superior Court dealt with a similar condition
imposed upon a parolee. The Court said this (at
page 4) of the unreported judgment:
Mac Allister, as I have said, is currently under sentence of
life imprisonment. His release on parole results from an
administrative decision exercised by the National Parole Board,
in its discretion, pursuant to the terms of the Parole Act and
the regulations enacted pursuant thereto. While entitlement to
parole has been categorized as a "right" in the legal or techni
cal sense of that word, the "liberty" or "freedom" which results
from the granting of that right is qualified. Mac Allister,
20 No. 700-38-000015-862, 500-36-000067-861, Hon. Mr.
Justice J. Fraser Martin, J.S.C., February 10th 1986, not
reported.
therefore, is at liberty subject to his obligation, to his duty to
respect and conform to the conditions of his release.
The Superior Court then goes through some of
the jurisprudence above referred to, including my
own decision in Belliveau v. The Queen 21 where I
said as follows, as reported in the Mac Allister
judgment (at page 8):
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 community 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 demo
cratic society.
With reference to the clarity of the condition
imposed by the Board, the Superior Court has this
to say (at page 10):
Examining the present situation within those guide lines I am
satisfied, first of all, that "l'avis de manquement" sets out
sufficiently the breach reproached to Mac Allister and reveals
clearly the violation in question. Furthermore, in that context, I
simply cannot accept that the condition imposed, as amended
on November 25th 1985, is so unclear as to beyond the
comprehension of the ordinary man and I say that quite
irrespective of the subsequent clarifications to the nature and
the extent of the restriction that were furnished by the Parole
Board to Mac Allister's attorneys.
In three American cases the issue was the validi
ty of parole conditions prohibiting the parolee
from associating with certain classes of people. In
Birzon v. King 22 the condition was that the parolee
would not associate with persons engaged in crimi
nal activity. That condition was held not to be
unconstitutionally vague. The United States Court
of Appeals, Second Circuit, said (at page 1243):
Although a parolee should enjoy greater freedom in many
respects than a prisoner, we see no reason why the Government
may not impose restrictions on the rights of the parolee that are
reasonably and necessarily related to the interests that the
Government retains after his conditional release. The restric
tion here involved is reasonably and necessarily related to the
Government's legitimate interests in the parolee's activities and
thus does not violate the first amendment.
21 [1984] 2 F.C. 384, at p. 393; 13 C.C.C. (3d) 138, at p. 145
(T.D.).
22 469 F. 2d 1241 (2nd Cir. 1972).
In U.S. v. Albanese 23 the condition of probation
required the appellant to "associate only with law-
abiding persons". The United States Court of
Appeals, Second Circuit, held (at page 544) as
follows:
Although conditions phrased in terms of "law-abiding per
sons" would better be avoided, condition of probation that
defendant associate only with law-abiding persons was not
unconstitutionally vague or overbroad as applied to defendant
who was found to have continually and consistently associated
over period of years on more than casual basis with large
number of convicted criminals.
In Malone v. U.S., 24 the terms of probation
imposed upon a parolee prohibited him from par
ticipating in any American Irish Republican move
ment and from belonging to any Irish organiza
tion, etc. The United States Court of Appeals,
Ninth Circuit, found that a convicted criminal
may be reasonably restricted, as part of his sen
tence, with respect to his associations in order to
prevent his future criminality. It held (at page
556) that there was a "reasonable nexus between
the probation conditions and the goals of
probation".
In my view, the condition imposed upon the
petitioner is sufficiently clear and precise to be
understood and enforced. It is obviously not
beyond the comprehension of any reasonable
person. The restriction is reasonably and necessari
ly related to the interests of the community and,
moreover, it stands as an additional safeguard for
the parolee in his progress towards full rehabilita
tion. Prudence alone would dictate that he avoid
the company of people who might lead him astray.
If per chance the petitioner became the victim of
any arbitrary or discriminatory interpretation or
enforcement of the condition, he can still look to
the Courts for redress.
4. The special condition imposed upon Petitioner and purport
edly effective as of the 8 January, 1986, is null, void and
invalid as it constitutes an unreasonable limit upon Petition
er's rights and freedoms guaranteed under sections 1, 2(d)
23 554 F. 2d 543 (2nd Cir. 1977).
24 502 F. 2d 554 (9th Cir. 1974).
and 6(2)(b) of the Charter.
Paragraph 2(d) and paragraph 6(2)(b) read as
follows:
2. Everyone has the following fundamental freedoms:
(d) freedom of association.
6. ...
(2) Every citizen of Canada and every person who has the
status of a permanent resident of Canada has the right
(b) to pursue the gaining of a livelihood in any province.
The petitioner submits that it is prima facie
evident that the special condition clearly infringes
on those two constitutional rights which he could
lawfully exercise, enjoy and pursue to the full
extent not incompatible with the terms and condi
tions governing his parole. Thus, up to the imposi
tion of the condition, the petitioner could associate,
socialize and converse with any individual and
could pursue the gaining of a livelihood without
restrictions or qualification, so long as those rights
were exercised in accordance with the law.
He claims that his rights have therefore been
infringed in such a broad and indiscriminate sweep
for the sole and only reason that he was found in
the company of Mr. Ronald McCann, an individu
al with whom the petitioner had been convicted of
a criminal offence more than seven years previous
ly. He therefore submits that the special condition
is not a reasonable limit upon his guaranteed
rights and freedoms and is therefore null and void.
In Reich v. (Alta.) College of Physicians and
Surgeons 25 the Court adopted the principles enun
ciated in an article titled "The Limitation of Lib
erty: A Consideration of Section 1 of the Charter
of Rights and Freedoms" by T. J. Christian as
follows [(1982), U.B.C. L. Rev. (Charter ed.) 105,
at pages 108-109] :
Any limit upon Charter rights must be rationally connected
to the attainment of a legitimate state object ...
25 (1984), 31 Alta. L.R. (2d) 205, at p. 218; 53 A.R. 325, at
p. 335; 8 D.L.R. (4th) 696, at pp. 708-709; 9 C.R.R. 90, at p.
102 (Q.B.).
Further, any limit on Charter rights must not be a more
excessive limitation than is necessary to obtain the legitimate
state object. Any restriction on a Charter right must be propor
tionate to the legitimate aim pursued ...
Finally, any limit on Charter rights must be not inspired by
arbitrary or capricious reasons, or be motivated by bad faith.
The petitioner submits that the rational objec
tive behind any conditions of parole is, firstly, to
aid in the rehabilitation of a parolee and, secondly,
to protect society from the commission of further
offences. Moreover this dual criteria must also be
rationally connected to the reasons advanced by
the Board to justify the incursions upon the peti
tioner's rights.
The petitioner claims that the condition could
prohibit the petitioner from pursuing the gaining
of a livelihood with any employer where anyone of
the employees might have been convicted in the
past of a criminal offence. Such a nexus, in his
view, would be so conspicuously tenuous as to
render a special condition, not merely an excessive
limitation but a clearly unreasonable one, and an
irrational limitation upon his rights under the
Charter of Rights to pursue the gaining of a
livelihood.
In my view, it has been clearly established that
the right to pursue the gaining of a livelihood in
any province means precisely that. It is not an
absolute right to work, but a mobility right. That
issue was resolved in Law Society of Upper
Canada v. Skapinker 26 wherein the Supreme
Court of Canada held that, properly construed,
paragraph 6(2)(b) does not establish a right to
work separate and distinct from the mobility provi
sion in which it is found. The two rights in para
graphs 6(2)(a) and (b) both relate to movement to
another province, either for the taking up of resi
dence, or to work without establishing residence.
Thus, paragraph 6(2)(b) does not clothe a perma
nent resident with an added constitutional right to
work as a lawyer in the province of residence so as
to override the provincial legislation.
26 [1984] 1 S.C.R. 357; 11 C.C.C. (3d) 481.
However, the right of the petitioner to associate
freely has undoubtedly been curtailed. The onus
therefore shifts and the burden is upon the
respondent to show under section 1 of the Charter
that the limitation it imposed upon the petitioner is
within the reasonable limit prescribed by law as
can be demonstrably justified in a free and demo
cratic society.
On that score, it is not necessary to canvass
again all the decisions already referred to in this
judgment which establish quite clearly that such
conditions are patently reasonable and impose no
excessive restrictions. There can be no doubt that
the type of condition as imposed upon the petition
er has a rational basis and stands well within
reasonable bounds acceptable and accepted in a
democratic society.
For all those reasons the application is denied
with costs.
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