T-762-85
Guy Knockaert (Applicant)
v.
Commissioner of Corrections, Warden of Stony
Mountain Institution and Earned Remission
Board of Stony Mountain Institution (Respon-
dents)
INDEXED AS: KNOCKAERT V. COMMISSIONER OF CORREC
TIONS
Trial Division, Reed J.-Winnipeg, March 17;
Ottawa, March 24, 1986.
Constitutional law - Charter of Rights - Criminal pro
cess - Right not to be punished twice for same offence
Inmate convicted of disciplinary offence - Penitentiary Dis
ciplinary Court imposing loss of earned remission and Earned
Remission Board not crediting applicant with earned remission
for month during which offence committed - Whether disci
plinary offences within Charter s. 11 - Whether applicant
punished twice for same offence, contrary to Charter s. 11(h)
- 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, 11(h) - Penitentiary Act, R.S.C.
1970, c. P-6, ss. 24(1) (as am. by S.C. 1976-77, c. 53, s. 41),
24.1(1) (as added idem), 29(3) - Penitentiary Service Regula
tions, C.R.C., c. 1251, s. 39(i) - Criminal Code, R.S.C. 1970,
c. C-34, s. 245(1) - Royal Canadian Mounted Police Act,
R.S.C. 1970, c. R-9, s. 25(1) - Narcotic Control Act, R.S.C.
1970, c. N-1, s. 10(9) - Fisheries Act, R.S.C. 1970, c. F-14,
s. 58.
Penitentiaries - Disciplinary offence - Whether imposi
tion of loss of earned remission by Disciplinary Court and
non-crediting of earned remission for month by Earned
Remission Board double punishment contrary to Charter s.
11(h) - Penitentiary Act, R.S.C. 1970, c. P-6, ss. 24(1) (as
am. by S.C. 1976-77, c. 53, s. 41), 24.1(1) (as added idem),
29(3) - Penitentiary Service Regulations, C.R.C., c. 1251, s.
39(i) - 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, 11(h).
The applicant, an inmate of the Stony Mountain Institution,
was convicted by the Penitentiary Disciplinary Court of the
disciplinary offence of having contraband in his possession and
a penalty of 30 days' loss of earned remission was imposed. The
applicant later received notice from the Earned Remission
Board that, because of his conviction, he had not been credited
with earned remission for the month in which the offence was
committed.
This is an application for certiorari to quash the Board's
decision on the ground that it imposed a second punishment for
the same offence, contrary to paragraph 11(h) of the Charter.
Held, the application is dismissed.
Although it was not strictly necessary to decide this point,
the Court would adopt the conclusion reached in Russell, that
disciplinary offences under the Penitentiary Service Regula
tions do constitute offences within the meaning of section 11 of
the Charter.
It was argued that a second punishment was imposed with
respect to the same event, pursuant to the provisions of the
same Act, at the behest of the same prosecutor (the institution
al head), for a wrong committed against the same party (the
Penitentiary service); and, in both cases the punishment was of
the same nature: less earned remission.
However, a single act may have more than one aspect, and it
may give rise to more than one legal consequence without
infringing paragraph 11(h) of the Charter. The purposes for
which the conviction of the offences was used in the two
proceedings are different. The Disciplinary Court concerns
itself with punishment for the commission of an offence, the
punishment being the loss of earned remission which has
already been credited. The Earned Remission Board concerns
itself with whether remission has been earned for the instant
month; it is not meting out punishment for the commission of
the disciplinary offence. The purpose of the Board's investiga
tion is to consider all aspects of the inmate's conduct during the
month to see if earned remission should be credited to the
inmate. The Board's decision therefore does not infringe para
graph 11(h) of the Charter.
No analogy can be drawn to Acts providing that the Court
convicting an accused of an offence may, in addition, order the
forfeiture of certain property. In this case, two different bodies
are involved.
CASES JUDICIALLY CONSIDERED
APPLIED:
Debaie v. The Queen (1983), 6 C.R.R. 204 (N.S.C.A.);
R. v. Wigglesworth (1983), 7 C.C.C. (3d) 170 (Sask.
Q.B.), affirmed (1984), 38 C.R. (3d) 388 (Sask. C.A.);
Re MacDonald and Marriott et al. (1984), 7 D.L.R.
(4th) 697 (B.C.S.C.); R. v. Belliveau (1984), 55 N.B.R.
(2d) 82 (C.A.); Downey v. The Queen (order dated May
16, 1985, Federal Court, Trial Division, T-937-85, not yet
reported).
DISTINGUISHED:
Belliveau v. The Queen, [1984] 2 F.C. 383; 12 C.R.R. 1
(T.D.); Re Regina and Green (1983), 5 C.C.C. (3d) 95
(Ont. H.C.); R. v. Douglas (1984), 10 C.R.R. 197 (B.C.
Co. Ct.); R. v. Krug (1982), 7 C.C.C. (3d) 324 (Ont.
Dist. Ct.).
REFERRED TO:
R. v. Mingo et al. (1982), 2 C.C.0 (3d) 23 (B.C.S.C.);
Re Howard and Presiding Officer of Inmate Disciplinary
Court of Stony Mountain Institution (1983), 8 C.C.C.
(3d) 557 (F.C.T.D.), overturned [1984] 2 F.C. 642;
(1985), 57 N.R. 280 (C.A.); Russell v. Radley, [1984] 1
F.C. 543; 11 C.C.C. (3d) 289 (T.D.); Peltari v. Dir. of
Lower Mainland Reg. Correctional Centre (1984), 42
C.R. (3d) 103 (B.C.S.C.); Macdougall v. Paterson
(1851), 11 C.B. 755; 138 E.R. 672 (C.P.); R. v. B & W
Agricultural Services Ltd. et al. (1982), 3 C.R.R. 354
(B.C. Prov. Ct.); Regina v. T.R. (No. 2) (1984), 11
C.C.C. (3d) 49 (Alta. Q.B.); Re McCutcheon and City of
Toronto et al. (1983), 6 C.R.R. 32 (Ont. H.C.J.).
COUNSEL:
Judy Elliott for applicant.
Ted K. Tax for respondents.
SOLICITORS:
Legal Aid Manitoba for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
REED J.: The applicant seeks a writ of certiorari
quashing a decision that he was not entitled to
earned remission for the month of October, 1984.
It is sought to quash the decision on the ground
that it offends paragraph 11(h) 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.)]:
11. Any person charged with an offence has the right
(h) if finally acquitted of the offence, not to be tried for it
again and, if finally found guilty and punished for the
offence, not to be tried or punished for it again ...
The applicant was charged and convicted on
November 1, 1984, of the disciplinary offence' of
having contraband in his possession on October 17,
1984. Pursuant to this decision by the Penitentiary
Disciplinary Court, a penalty of 30 days' loss of
earned remission was imposed by that Court.
Subsequently, on December 21, 1984, the appli-
' Paragraph 39(i) of the Penitentiary Service Regulations,
C.R.C., c. 1251.
cant received notice from the Earned Remission
Board of the Stony Mountain Institution that he
had not been credited with earned remission for
the month of October, because of his conviction by
the Disciplinary Court.
The relevant portions of sections 24 and 24.1 of
the Penitentiary Act, R.S.C. 1970, c. P-6, as
amended by S.C. 1976-77, c. 53, s. 41 provide:
24. (1) ... every inmate may be credited with fifteen days
of remission of his sentence in respect of each month ... during
which he has applied himself industriously, as determined in
accordance with any rules made by the Commissioner in that
behalf, to the program of the penitentiary in which he is
imprisoned.
24.1 (1) Every inmate who, having been credited with earned
remission, is convicted in disciplinary court of any disciplinary
offence is liable to forfeit, in whole or in part, the earned
remission that stands to his credit ....
Subsection 29(3) provides that:
29....
(3) Subject to this Act ... the Commissioner may make
rules, to be known as Commissioner's directives, for the ...
custody, treatment, training, employment and discipline of
inmates and the good government of penitentiaries.
The relevant Commissioner's directive, 600-2-
06.1, issued pursuant to subsections 24(1) and
29(3) entitled "Earned Remission", provides in
part:
PURPOSE
4. To reward inmates for good behaviour and satisfactory
performance in their assigned programs.
DEFINITIONS
5. "Performance" means the degree to which an inmate abides
by the rules of the institution and applies effort to the assigned
institutional program.
6. "Satisfactory Performance" means the inmate's compliance
with the institutional rules and the application of consistent
effort to the maximum limit of his capabilities.
PROGRAM ADMINISTRATION
11. The chairperson of the earned remission board shall make
the final decision on the number of days to be awarded.
12. Regular records shall be kept of board meetings to indicate
the number of days awarded those inmates who did not earn
the maximum fifteen (15) days.
REMISSION TERMS AND CONDITIONS
13. Inmates whose performance is satisfactory shall earn fifteen
(15) days' remission for each month served.
No argument is made that the Commissioner
did not have jurisdiction, as a matter of statutory
interpretation, to issue directive 600-2-06.1. Both
counsel take the position that subsection 24(1)
gives a mandate to the Commissioner to define the
meaning of "applied himself industriously", and
that directive 600-2-06.1, which requires an
inmate to both abide by the rules of the institution
and apply effort to his assigned institutional pro
gram, is a valid exercise of that mandate.
The argument is that the trial, conviction and
imposition of 30 days' loss of earned remission by
the Disciplinary Court is a proceeding which
comes within the terms of section 11 of the Chart
er, and that the subsequent non-crediting of earned
remission by the Earned Remission Board, with
respect to the month of October, is a second
punishment for an offence for which the applicant
has already been punished. Consequently, it is
argued that the decision of the Board is invalid as
contrary to paragraph 11(h) of the Charter.
The jurisprudence discloses that there is some
difference of opinion on whether or not a convic
tion for a disciplinary offence under the Peniten
tiary Service Regulations comes under section 11
of the Charter. The British Columbia Supreme
Court in R. v. Mingo et al. (1982), 2 C.C.C. (3d)
23 took the position that it did not. This was
followed in Re Howard and Presiding Officer of
Inmate Disciplinary Court of Stony Mountain
Institution (1983), 8 C.C.C. (3d) 557 (F.C.T.D.)
overturned but in reliance on section 7 of the
Charter, see [1984] 2 F.C. 642; (1985), 57 N.R.
280 (C.A.).
On the other hand, in Russell v. Radley, [ 1984]
1 F.C. 543; 11 C.C.C. (3d) 289 (T.D.) Mr. Justice
Muldoon held that disciplinary offences under the
Penitentiary Service Regulations do constitute
offences within the meaning of section 11. The
British Columbia Supreme Court in Peltari v. Dir.
of Lower Mainland Reg. Correctional Centre
(1984), 42 C.R. (3d) 103 concluded likewise. An
appeal of this last to the British Columbia Court
of Appeal was not heard on the ground that the
matter had become academic: see unreported deci
sion (given orally) of the British Columbia Court
of Appeal, dated March 4, 1985, court file number
CA 003031. On the view I take of the matter in
issue it is not strictly speaking necessary for me to
decide this point. However, I would indicate that
were I required to do so I would adopt the conclu
sion of my colleague, Mr. Justice Muldoon, in the
Russell case.
Even if the particular disciplinary offence in this
case (possession of contraband) constitutes an
offence to which section 11 applies, the crucial
issue is whether the subsequent action of the
Earned Remission Board can be said to have
resulted in the applicant being "tried or punished
for it [the offence] again".
Counsel for the applicant argues that the deci
sion of the Board does constitute a second punish
ment as contemplated by paragraph 11(h) of the
Charter because: (1) even though subsection 24(1)
of the Penitentiary Act provides that earned remis
sion may be credited to an inmate, this is really a
situation in which the word "may" is being used to
mean "shall" 2 and where, therefore, the inmate
has a right to such remission, if earned: (2) punish
ment means the imposition of a sanction imposed
by law 3 and the imposition of a sanction includes
the exacting of a "loss of reward"; (3) the second
punishment was imposed with respect to the same
event, pursuant to the provisions of the same Act
(the Penitentiary Act), at the behest of the same
"prosecutor" (the institutional head), for a wrong
2 Bennion, Statutory Interpretation, (Butterworths, London
1984), p. 27; Macdougall v. Paterson (1851), 11 C.B. 755, at
pp. 772 1f; 138 E.R. 672 (C.P.), at p. 679.
3 R. v. B & W Agricultural Services Ltd. et al. (1982), 3
C.R.R. 354 (B.C. Prov. Ct.), at p. 360; R. v. T.R. (No. 2)
(1984), 11 C.C.C. (3d) 49 (Alta Q.B.), at p. 55; Re McCutch-
eon and City of Toronto et al. (1983), 6 C.R.R. 32 (Ont.
H.C.J.), at p. 47.
committed against the same party (the Penitentia
ry Service); and, in both cases the punishment was
of the same nature—resulting in less earned remis
sion for the inmate. It is argued that two institu
tional bodies have been set up, the effect of which
is to punish an inmate twice for the same offence.
Counsel for the respondents does not dispute
greatly the first point above, although he notes
that "may" is a discretionary term. His main
argument, however, is that the commission of an
offence by an inmate is one which must be charac
terized as having two aspects, that the Disciplinary
Court and the Earned Remission Board are doing
two different things; the Court is punishing an
inmate for having committed an offence by revok
ing earned remission already credited to him; the
Board is determining whether an inmate has com
plied with all the rules of the institution for the
instant month in order to see if remission for that
month has been earned.
These two aspects, he argues, are similar to
distinctions which have been made in: Debaie v.
The Queen (1983), 6 C.R.R. 204 (N.S.C.A.)—an
inmate committing theft while on release under
mandatory supervision suffering penalties imposed
by virtue of conviction for the criminal offence and
having his mandatory supervision revoked as well
as suffering loss of earned remission; R. v. Wig-
glesworth (1983), 7 C.C.C. (3d) 170 (Sask. Q.B.),
affirmed (1984), 38 C.R. (3d) 388 (Sask. C.A.),
presently under appeal to the Supreme Court—an
RCMP convicted of a major service offence under
subsection 25(1) of the Royal Canadian Mounted
Police Act, R.S.C. 1970, c. R-9 also charged with
common assault under subsection 245(1) of the
Criminal Code [R.S.C. 1970, c. C-34]; Re Mac-
Donald and Marriott et al. (1984), 7 D.L.R. (4th)
697 (B.C.S.C.)—a police officer convicted of
fraud and sought to be disciplined under the rele
vant police disciplinary regulations; Belliveau v.
The Queen, [1984] 2 F.C. 383; 12 C.R.R. 1 (T.D.)
and R. v. Belliveau (1984), 55 N.B.R. (2d) 82
(C.A.)—an inmate on mandatory supervision con
victed of offences under the Narcotic Control Act
[R.S.C. 1970, c. N-1] who also suffered loss of
release on mandatory supervision and loss of
earned remission; Downey v. The Queen (not yet
reported, decision of Mr. Justice Strayer dated
May 16, 1985, Court file T-937-85)--two mem
bers of the Canadian armed forces convicted of
mischief to property involving damage to motor
vehicles of some 110 persons, subsequently pro
ceeded against under the relevant armed forces
disciplinary procedure for determination as to
whether their behaviour constituted reason for
their release from the Armed Forces.
What emerges from these decisions is in part set
out in the judgment of the Saskatchewan Court of
Appeal in the Wigglesworth case (supra), at page
395:
A single act may have more than one aspect, and it may give
rise to more than one legal consequence. It may, if it constitutes
a breach of the duty a person owes to society, amount to a
crime, for which the actor must answer to the public. At the
same time, the act may, if it involves injury and a breach of
one's duty to another, constitute a private cause of action for
damages, for which the actor must answer to the person he
injured. And that same act may have still another aspect to it:
it may also involve a breach of the duties of one's office or
calling, in which event the actor must account to his profession
al peers. For example, a doctor who sexually assaults a patient
will be liable, at one and the same time: to a criminal conviction
at the behest of the state; to a judgment for damages at the
instance of the patient; and to an order of discipline on the
motion of the governing council of his profession. Similarly, a
policeman who assaults a prisoner is answerable: to the state
for his crime; to the victim for the damage he caused; and to
the police force for discipline.
This has long been the law, and nothing, in my respectful
opinion, in s. 11(h) of the Charter has changed matters in this
respect.
And in Downey v. The Queen, Mr. Justice Strayer
referred to the fact that the Armed Forces discipli
nary proceeding had a different purpose from pro
ceedings under the Criminal Code; it was designed
to determine the continued usefulness of the
individuals in question as members of the Canadi-
an Armed Forces.
Counsel for the applicant, rightly points out that
there is a much closer nexus between the two
proceedings in this case than that which existed in
R. v. Wigglesworth, Re MacDonald and Marriott
et al. or Downey v. The Queen. The parties in this
case are not different; the statutes are not differ
ent; there is no private or public aspect differen
tiating the two proceedings.
While the decisions in Debaie v. The Queen
(supra) and R. v. Belliveau (supra) are closer to
the fact situation in this case, those decisions are
cryptic in their expression of reasons for the con
clusions reached. The decision in Belliveau v. The
Queen (supra), by my colleague Mr. Justice Dubé,
found that the system whereby an inmate who is
released on mandatory supervision and who com
mits an offence has his mandatory supervision
cancelled, loses his earned remission and suffers
the sanctions of the penal law was a reasonable
limit on Charter guarantees as allowed by section
1 of the Charter. I would have some difficulty
applying that reasoning to the facts in this case,
because the inmate was not outside the penitentia
ry.
In any event, in my view, the purposes for which
the conviction of the offence is being used in the
two proceedings (that before the Disciplinary
Court and that before the Earned Remission
Board) are different in a sense analagous to that
discussed in the Wigglesworth, Downey and Mac-
Donald cases (supra). As counsel for the respond
ents argues, the Disciplinary Court concerns itself
with punishment for the commission of an offence,
the punishment being the loss of earned remission
which has already been credited. The Earned
Remission Board concerns itself with whether
remission has been earned for the instant month.
These are two different types of considerations.
The inmate may justifiably consider the decision
that he has failed to earn remission for October to
be a punishment, but his subjective view of the
matter cannot be determinative. I do not think it is
sufficient for the purpose of paragraph 11(h) to
demonstrate merely that a second consequence of
a disadvantageous nature has been incurred as a
result of conviction for an offence. "Punishment"
standing alone is a very broad word. Counsel
defined it as an "imposition imposed by law".
Paragraph 11(h) requires something more how
ever. It requires that the punishment be "for it",
that is, for the commission of the offence. The
investigation of the Earned Remission Board is not
for the purpose of meting out punishment for the
commission of the disciplinary offence. That is the
function of the Disciplinary Court. The purpose of
the Board's investigation is to consider all aspects
of the inmate's conduct during the month in ques
tion to see if he or she merits being credited
with 15 days' earned remission. (An analogy can
be drawn to an employer who considers whether
conviction of a criminal offence is sufficient to
make a person ineligible to be hired for a particu
lar job.) In the prison situation the institution head
is necessarily the same with respect to both the
Court and the Board but this does not mean
double punishment in the sense of paragraph
11(h). I think the difference of purpose of the two
decisions is sufficient to require the conclusion that
the Board's decision does not constitute an
infringement of paragraph 11(h) of the Charter.
One last argument should be noted. Counsel for
the respondents argued that if the decision of the
Board constituted punishment for the offence in
the sense in which those terms are used in para
graph 11(h) then I should adopt as applicable to
this case, the reasoning of Mr. Justice Linden in
Re Regina and Green (1983), 5 C.C.C. (3d) 95
(Ont. H.C.). In that case an action was brought
under subsection 10(9) of the Narcotic Control
Act, R.S.C. 1970, c. N-1 for forfeiture of a truck
from which marijuana had been seized. The for
feiture proceedings were commenced after the
vehicle's owner had been convicted of trafficking.
Mr. Justice Linden stated at page 96:
Although I agree ... that forfeiture is a form of punishment,
I cannot agree that s. 10(9) of the Narcotic Control Act
contravenes s. 11(h) of the Charter. The imposition of multiple
penal consequences in respect of the same offence has never
fallen within the scope of the double jeopardy rule: see M.L.
Friedland, Double Jeopardy (1969), pp 200-1. The laws of
Canada permit a variety of sanctions to be imposed in conjunc
tion with other forms of punishment ....
Like the sanctions noted above, forfeiture of a conveyance is a
penal consequence flowing directly from a conviction. The fact
that forfeiture is not automatic, and can be sought after a term
of incarceration has been imposed does not mean that an
accused is being punished again for the same offence. An
accused is not finally punished until all possible penal conse
quences for the offence have been exhausted ....
A contrary view was taken in R. v. Douglas
(1984), 10 C.R.R. 197 (B.C. Co. Ct.) with respect
to section 58 of the Fisheries Act, R.S.C. 1970, c.
F-14. And, counsel for the applicant notes that in
R. v. Krug (1982), 7 C.C.C. (3d) 324, at page 330
(Ont. Dist. Ct.), Professor Hogg's text, Canada
Act 1982 Annotated was quoted as indicating:
The word "finally" in s. 11(h) makes clear that the provision
does not preclude a retrial ordered by reason of some error at
the original trial.
In any event, in my view, the proceedings of the
Disciplinary Court and the Earned Remission
Board are not similar to subsection 10(9) of the
Narcotic Control Act, or section 58 of the Fisher
ies Act. Both those provisions expressly provide
that the Court convicting an individual for the
commission of an offence may order the forfeiture
of certain property in addition to any other penal
ties imposed for the commission of the offence.
The present case is not a situation where one
tribunal is seized of the matter and given the
option of imposing either or both loss of earned
remission and non-crediting of presently accruing
remission.
For the reasons given the application will be
dismissed.
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.