T-1133-86
Charles Carl Dempsey (Plaintiff)
v.
The Queen (Defendant)
and
Attorney-General for Ontario (Intervener)
INDEXED AS: DEMPSEY V. CANADA
Trial Division, Muldoon J.-Toronto, September
24, 25; Ottawa, November 17, 1986.
Parole - Mandatory supervision - Applicable to those
sentenced to two years or more (federal inmates), not to
provincial inmates - Not contrary to Charter s. 15 even if
based on length of term of imprisonment imposed - No
infringement of Charter s. 7 right to liberty - No hearing
required re mandatory supervision - Parole Act, R.S.C. 1970,
c. P-2, s. 15(1),(3) (as am. by S.C. 1976-77, c. 53, s. 28) -
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. 7, 15(1),(2), 24(1), 28, 32(2) - Federal Court
Rules, C.R.C., c. 663, R. 474 (as am. by SOR/79-57, s. 14)
Criminal Code, R.S.C. 1970, c. C-34, s. 722 (as am. by S.C.
1985, c. 19, s. 170) - Penitentiary Act, 1868, 31 Vict., c. 75, s.
62 - Criminal Law Amendment Act, 1968-69, S.C. 1968-69,
c. 38 - Criminal Law Amendment Act, 1977, S.C. 1976-77, c.
53 - An Act to amend the Parole Act and the Penitentiary
Act, S.C. 1986, c. 42, s. 5 - An Act to amend the Parole Act,
the Penitentiary Act, the Prisons and Reformatories Act and
the Criminal Code, S.C. 1986, c. 43.
Constitutional law - Charter of Rights - Equality rights
- Conditional release from incarceration on mandatory
supervision - Whether mandatory supervision violating
Charter s. 15 as based on length of term of imprisonment
imposed in that applicable to those sentenced to two years or
more (federal inmates), not to those sentenced to less (provin-
cial inmates) - S. 15 requiring those "similarly situated" to
be treated similarly - Federal and provincial inmates not
"similarly situated" in view of differences as to seriousness of
offences, degree of culpability and risk to society - Parole
Act, R.S.C. 1970, c. P-2, s. 15(1),(3) (as am. by S.C. 1976-77,
c. 53, s. 28) - 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. 7, 15(1),(2), 24(1), 28,
32(2).
Constitutional law — Charter of Rights — Life, liberty and
security — Right to liberty — Conditional release from
incarceration on mandatory supervision — No hearing
required to determine whether plaintiff should be subject to
mandatory supervision as such conditional release enhancing
liberty, not intensifying deprivation thereof — Parole Act,
R.S.C. 1970, c. P-2, s. 15(1),(3) (as am. by S.C. 1976-77, c. 53,
s. 28) — 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. 7, 15(1),(2), 24(1), 28, 32(2).
The plaintiff served a term of imprisonment in a federal
penitentiary. At a certain point, with earned remission, the
plaintiff became eligible for conditional release subject to man
datory supervision. The plaintiff, pursuant to subsection 15(3)
of the Parole Act, was free to accept or reject conditional
release on mandatory supervision. He accepted.
The plaintiff now seeks declarations of unconstitutionality
and inoperability of the regime of mandatory supervision. He
argues that it violates the equality rights guaranteed by subsec
tion 15(1) of the Charter because it applies to those sentenced
to terms of imprisonment of two years or more (federal
inmates), but does not apply to those sentenced to less (provin-
cial inmates). In the alternative, he argues that the regime of
mandatory supervision should be declared inoperative in rela
tion to him, pursuant to section 24 of the Charter, in that his
right to liberty under section 7 of the Charter has been
infringed, because he was never offered any form of hearing to
determine whether he should be subject to mandatory supervi
sion. These preliminary constitutional questions were, pursuant
to Rule 474, fixed and determined in their formulation by the
Associate Chief Justice.
Held, the regime of mandatory supervision is not inconsistent
with section 15 of the Charter, nor has section 7 been infringed.
Underlying the plaintiff's argument based on equality rights
is the observation that nowhere in the Constitution Act, 1867
are there to be found provisions either defining "penitentiary"
or setting a demarcation line between the offenders who are to
serve sentences in penitentiaries, as opposed to other prisons. It
would thus be possible to conclude that, given the federal power
to legislate in criminal law matters, the federal government
could define or otherwise alter the split in jurisdiction as it sees
fit. It would follow that the alleged inequality with respect to
mandatory supervision is not inescapable. Indeed, the Canadian
Committee on Corrections, in its 1969 report, recommended
that mandatory supervision apply equally to inmates of federal
and provincial prisons.
The plaintiff argues that prisoners released from provincial
institutions as a result of remission are not subject to mandato
ry supervision: they are released directly into society without
supervision and enjoy the same rights and privileges as any
Canadian resident. On the other hand, the superimposition of
mandatory supervision onto the federal inmate's remission
spoils the benefit of the remission for federal inmates.
The purpose of section 15 is to require that those who are
similarly situated be treated similarly. Both the law and the
very nature of the criminal depredation situate offenders differ
ently. There are differences between federal and provincial
inmates as to the seriousness of the offences, the degree of
culpability involved and the risk they present to society.
It is true that there is no constitutional right to remission. It
is also true that so long as Parliament accords remission, it
must do so in a manner that does not violate section 15 of the
Charter. However, given the fact that mandatory supervision is
at law an aspect of punishment for criminal conduct and given
the above-mentioned differences between the two categories of
inmates, one cannot conclude that there is discrimination of the
kind section 15 of the Charter is meant to condemn. Further
more, the rational purpose of mandatory supervision is to avoid
the release of federal inmates who have been refused parole
directly into the community without any of the supervision
which is imposed on parolees who generally present less risk to
society. A proved breach of the conditions of mandatory super
vision may lead to its revocation and return to a carceral
institution but the basic condition is that the federal inmate be
law-abiding and keep the peace, which condition can hardly be
said to be discriminatory.
The fact that the plaintiff was never offered any form of
hearing to determine whether he should be subject to mandato
ry supervision did not infringe his right to liberty under section
7 of the Charter. There was a hearing as to the fit sentence to
be imposed by the Court in consequence of his conviction.
Barring matters which of themselves require a hearing, the
principles of natural justice do not require any further adjudi
cation during the serving of the term imposed. The acceptance
or rejection of mandatory supervision by an inmate requires no
adjudication since the liberty of which the plaintiff was lawful
ly deprived upon sentencing was demonstrably enhanced by his
release upon the conditions of his mandatory supervision. The
principles of fundamental justice do not require an adjudication
on a convict's conditional release which constitutes a known,
standard aspect of punishment, any more than an annual
adjudication on each year of a term of imprisonment.
CASES JUDICIALLY CONSIDERED
APPLIED:
Re McDonald and The Queen (1985), 21 C.C.C. (3d)
330 (Ont. C.A.); Rebic v. Collver Prov. J., [1986] 4
W.W.R. 401 (B.C.C.A.); R. v. Swain (1986), 50 C.R.
(3d) 97 (Ont. C.A.); R. v. McCormick, [1979] 4 W.W.R.
453; 47 C.C.C. (2d) 224 (Man. C.A.).
REFERRED TO:
R. v. Hauser, [ 1979] 1 S.C.R. 984; Dempsey v. Canada
(Attorney General), [1986] 3 F.C. 129 (F.C.A.); (1986),
65 N.R. 295; 25 C.C.C. (3d) 193; R. v. Moore; Oag v.
The Queen et al., [1983] 1 S.C.R. 658; 33 C.R. (3d) 97;
R. v. Constant (1978), 40 C.C.C. (2d) 329 (Man. C.A.);
leave to appeal to S.C.C. denied, [1978] 1 S.C.R. vi;
Logan v. Dir. of William Head Inst'n et al., judgment
dated May 30, 1986, British Columbia Supreme Court,
Victoria Registry 86/1307, not yet reported.
COUNSEL:
David P. Cole and S. Benzvy Miller for
plaintiff.
M. Thomas for defendant.
W. B. Trafford, Q.C. and James M. Chalke
for intervener.
SOLICITORS:
David P. Cole, Toronto, for plaintiff.
Deputy Attorney General of Canada for
defendant.
Deputy Attorney General for Ontario for
intervener.
The following are the reasons for judgment
rendered in English by
MULDOON J.: The plaintiff, at certain material
times, was serving a term of imprisonment in a
federal penitentiary during which term he became
free to accept or reject conditional release from the
confines of the prison in accordance with the
regime of mandatory supervision. That choice is
accorded to the plaintiff, and all others in the same
situation as his since 1977, pursuant to subsection
15(3) of the Parole Act, R.S.C. 1970, c. P-2, and
amendments [as added by S.C. 1976-77, c. 53, s.
28]. The plaintiff accepted conditional release on
mandatory supervision.
In his statement of claim, the plaintiff seeks
declarations of unconstitutionality and inoperabili-
ty of the regime of mandatory supervision. He
alleges that the regime and its legislative provi
sions run afoul of sections 7 and 15 of the Canadi-
an Charter of Rights and Freedoms [being Part I
of the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)] (hereinafter: the
Charter) enacted by the Constitution Act, 1982.
These issues generate preliminary constitutional
questions which, pursuant to Rule 474 [Federal
Court Rules, C.R.C., c. 663 (as am. by
SOR/79-57, s. 14)], were fixed and determined in
their formulation by orders of the Associate Chief
Justice on July 16 and 24, 1986.
Service of copies of the statements of claim and
defence together with an appropriate notice were
ordered to be effected on each province's attorney-
general in view of the constitutional questions
propounded. The Attorney-General for Ontario
sought leave, and was accorded permission to
intervene in these proceedings, as the present style
of cause indicates.
The preliminary questions which have been pro
pounded are these:
a) Whether the regime of mandatory supervision contained in
s. 15 of the Parole Act, R.S.C. 1970, Chap. P-2, as
amended, and incidental legislation and regulations is of
no force or effect, to the extent that it is inconsistent with
s. 15 of Part I of the Constitution Act, 1982.
b) In the alternative, whether pursuant to s. 24(1) of Part I of
the Constitution Act, 1982, the regime of mandatory
supervision is inoperative in relation to the plaintiff on the
ground that his right to liberty under s. 7 of the Charter
has been infringed as he was never offered any form of
hearing to determine whether he should be subject to
mandatory supervision.
On behalf of both the plaintiff and the defen
dant four volumes of authorities were jointly sub
mitted, in addition to a distinct memorandum of
fact and law which was submitted by and on
behalf of each of them. A volume of authorities
was submitted on behalf of the intervener, as well.
The plaintiff and the defendant are in substan
tial agreement as to the salient facts underpinning
the questions which have been propounded for
determination by the Court, in that the defendant
formally admitted "as substantially correct the
statements of fact set out in paragraphs (a) to (e)
of the statement of claim". Here are those five
allegations by the plaintiff:
(a) He was sentenced on May 19, 1983 at Toronto, Ontario to
a term of four years imprisonment following his conviction
upon a charge of robbery.
(b) Pursuant to s. 659(1)(b) of the Criminal Code of Canada,
this term was required to be served in a penitentiary. The
plaintiff was transferred to a penitentiary and served the
custodial portion of his sentence at various penitentiaries
in the Province of Ontario.
(c) Pursuant to the terms of the Parole Act R.S.C. 1970 c.
P-2, as amended, and the Parole Regulations P.C. 1978-
1528, as amended, the plaintiff's case was reviewed by
members of the National Parole Board, but he was not
granted parole by that Board. Had he been granted parole
(and had that parole been neither suspended nor revoked)
the plaintiff would have been' at liberty in the community
(subject to terms and conditions deemed desirable by the
Board) until the expiry of his sentence on May 18, 1987.
(d) Pursuant to the terms of the Penitentiary Act R.S.C. 1970
c. P-6, as amended, the plaintiff was eligible to earn
remission for industrious application to the program of the
penitentiary in which he was imprisoned. The plaintiff
earned such remission. When the number of days of
remission earned was equal to the number of days remain
ing in his sentence the plaintiff was eligible to be released
from close custody. The plaintiff was eligible for release on
January 22, 1986. (In order to accomodate [sic] institu
tional routine he was in fact released on January 21, 1986,
on a one day unescorted temporary absence permit, issued
pursuant to s. 26.1 of the Penitentiary Act.)
(e) Pursuant to the legislative scheme contained in s. 15 of the
Parole Act, (known as "mandatory supervision") the
plaintiff's release on January 22, 1986 was not absolute.
Until May 18, 1987 he remains subject to the control of
the National Parole Board and its designated officials.
Attached to this claim are photocopies of the plaintiffs
"Certificate of Mandatory Supervision". In the "Acknowl-
edgement" (which the plaintiff refused to sign), it indi
cates (in the English text) that he must obey certain
conditions and if he violates any of the conditions he may
be recommitted to penitentiary. In addition, pursuant to
the provisions of the Parole Act the plaintiffs right to be
at liberty on mandatory supervision may be suspended and
revoked.
The plaintiff has lent his name and personal
circumstances to this litigation which, as his coun
sel explicitly characterized, and all other counsel
implicitly accepted, is instituted to be a test case.
In regard to the plaintiff's own circumstances and
prospects in life, it is noted that his counsel, Mr.
Cole, stated in argument that "for the purpose of
this proceeding, the plaintiff makes no issue of the
efficacy of mandatory supervision". The plaintiff
does not allege that mandatory supervision consti
tutes cruel and unusual treatment or punishment.
However, to some slight degree determination of
the questions in issue exacts consideration of the
objects and purposes of the penal law and recogni
tion of certain historical factors in the development
of the Canadian correctional establishment. The
excellent and comprehensive jointly submitted
books of authorities provide abundant source ma
terial and jurisprudential authorities which are,
alas, generally too copious, and individually too
long, to be recited fully in these reasons.
SECTION 15 OF THE CHARTER
The plaintiffs principal attack on the constitu
tionality of the regime of mandatory supervision is
based primarily upon the equality rights expressed
in the Charter, located in subsection 15(1). Thus:
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
Subsection (2) deals with affirmative action pro
grams, and section 28 further buttresses the
Charter's guaranties of equalities of the sexes.
Section 15 came into force on April 17, 1985, in
accordance with subsection 32(2).
The plaintiffs counsel correctly notes that there
are two types of institution for inmates who have
been sentenced to terms of imprisonment for con
viction of offences contemplated by the Criminal
Code [R.S.C. 1970, c. C-34] and by the penal
provisions of other statutes enacted by Parliament.
These are provincial correctional institutions (once
and sometimes called prisons or gaols), and federal
penitentiaries. The reasons for such a split in the
prison system appears to have been effected on the
basis of a pragmatism which is lost in the mists of
our country's short history, as was wryly noted by
counsel for the intervener.
Considering only those convicts sentenced to
imprisonment for breach of what may be generally
regarded as criminal law (R. v. Hauser, [1979] 1
S.C.R. 984, notwithstanding), a term of imprison
ment of not exceeding two-years-less-a-day is to be
served in a provincial institution, whereas a term
of two years or longer is to be served in a federal
penitentiary. Why? The article "Historical Per
spectives on the Federal-Provincial Split in Juris
diction in Corrections", (1980) 22 Cdn. Journal of
Criminology 298, written by H. G. Needham,
senior policy analyst, ministry secretariat, Solicitor
General of Canada, is instructive. At pages 298
and 299, the author's text (Tab 35 joint authori
ties) runs as follows:
Prior to the middle of the nineteenth century, the notion of a
two-year split in jurisdiction between prison and penitentiary
was apparently well established. 4-5 Victoria Ch. 23-26 (1841)
[c. 24, s. 24], provide for offenders to be:
imprisoned at hard labour in the provincial penitentiary for
any term not less than seven years, or to be imprisoned in any
other prison or place of confinement for any term not
exceeding two years.
The following year, the discretionary period (more than two
years but less than seven) was dispensed with and further
legislation in 1859 confirmed the two-year dividing line.
The British North America Act was the major instrument
used to divide jurisdiction between federal and provincial gov
ernments. In general, the federal government was given respon
sibilities to legislate in the area of criminal justice and for the
administration of penitentiaries. [Section 91, Heads 27 and 28]
Further, provision was made for the provinces to legislate in
relation to the establishment, maintenance and management of
public and reformatory prisons in and for the province. [Section
92, Head 6]
It is worth noting that nowhere in the BNA Act are there to
be found provisions either (a) defining penitentiary or, (b)
setting a demarcation line between those offenders who are to
serve sentences in penitentiaries, as opposed to other prisons.
It is possible to conclude that, given the federal competence
to legislate in criminal law matters and the lack of reference to
these two subjects, the federal government can define or other
wise alter the split in jurisdiction as it sees fit.
Such early legislation as there is, regarding the jurisdictional
split is found in the consolidations of 1869, 1886, 1892 and
1927, which reaffirm the two-year split, as originally legislated
in 1842, with but minor variations.
Indeed, the dividing line remains today where it
has long been, between terms up to and including
two-years-less-a-day to be served in provincial
prisons, and two years and longer to be served in
federal penitentiaries.
For ease of reference, although sacrificing
accuracy, all counsel referred to the inmates of the
respective institutions as "provincial inmates" and
"federal inmates". Such terminology will serve
adequately the purposes of this litigation.
It should be borne in mind that among the
provincial inmates there are those serving terms of
not longer than 6 months maximum, convicted of
offences punishable on summary conviction, for
which that maximum term is provided in section
722 of the Criminal Code [as am. by S.C. 1985, c.
19, s. 170]. Also among the provincial inmates are
those who have been convicted of offences for
which the maximum term may be as long as life
imprisonment but who have been sentenced to
terms of two-years-less-a-day or shorter terms.
Finally, of course, among provincial inmates are
those sentenced to imprisonment for breaches of
various provincial statutes, such as The Highway
Traffic Act or The Liquor Control Act.
Among the federal inmates the vast majority are
incarcerated for having committed offences
against the Criminal Code and the drug Acts, and
are serving terms of two years or longer duration.
The plaintiff's counsel noted in argument that
there are federal inmates who ought not, on any
principles of good corrections policy, to be in
penitentiaries in the first place. The supreme irony
of that submission is that it was the plaintiffs
brother, according to counsel, who persuaded the
majority of a panel of the Federal Court of Appeal
to permit him to serve, consecutively to his twelve-
year penitentiary term, 66 days' imprisonment
imposed upon him in default of paying his fines for
municipal parking by-law contraventions! That
decision is reported as Dempsey v. Canada (Attor-
ney General), [1986] 3 F.C. 129; (1986), 65 N.R.
295; 25 C.C.C. (3d) 193, but the reports do not
indicate whether the provincial attorney general
was ever invited to intervene in that constitutional
question. In any event, the qualifying factor in the
other Dempsey case was that he was already serv
ing a term imposed for the commission of serious
criminal offences.
Testimony and documentary evidence were
received from the only witness called in these
proceedings, Linda Goldberg, a research and
evaluation officer of the National Parole Board.
She is a criminologist and sociologist who has been
a university teacher mainly of the sociology of
police and corrections. Among other exhibits, she
produced formidable statistical material in Exhibit
2. Within that exhibit is Table 2 which, although it
does not show all the minute factors, permutations
and combinations revealed by Miss Golderg's
other documents and her explanatory testimony,
does adequately demonstrate the nature and qual
ity of those prison populations whom counsel have
designated as provincial inmates and federal
inmates. With some words of explanation and
emphasis added by the Court, Table 2 is this:
TABLE 2
Sentenced Admissions to Provincial Custody and Federal
Inmates on Profile (register) by Major Offence 1983-84
•
PROVINCIAL' FEDERAL 2
OFFENCE [INSTITUTION] [PENITENTIARY]
Violent' 8% 60%
Property' 30% 24%
Drinking/Driving 18%
Other 15% 8%
Total Criminal Code 71 % 92%
Drug 5% 6%
Other 1% 2%
Total Federal Statutes 6% 8%
Liquor 8%
Other 11%
Total Provincial
Statutes 19%
Municipal By-Laws 4%
Total 129,748 11,875
persons persons
The witness noted that, under property offences,
one cannot really discern the circumstances of
breaking and entering, or whether those broken
and entered premises were warehouses or dwell
ings, or yet again the frequency with which
inmates committed the offences. She also
explained that although the percentages of prop
' Adult Correctional Services in Canada, 1983-84, Statistics
Canada, pp. 158-159.
2 Ibid., p. 180.
3 Violent offences include: homicide (murder, manslaughter,
infanticide), assault, sexual assault, other sexual offences, dis
charge of firearm, abduction and robbery.
4 Property offences include: breaking and entering, theft
(over and under $200 and of motor vehicle), have stolen goods,
frauds.
erty offences committed by provincial and federal
inmates respectively are close (30% and 24%) one
cannot assume that those offences are the same or
that the offenders had the same prior records or
the same amount of damage was incurred from
them. (Transcript: page 27.) The same kind of
observation must equally be true of the other
offences.
Although, in argument, counsel for the plaintiff
indicated that the plaintiff makes no issue of the
putative efficacy of mandatory supervision, coun
sel did cross-examine the witness on that matter.
Some salient evidence emerged. In response to
counsel's question about "whether mandatory
supervision works, or, if it were applicable at the
provincial level, whether it would work, the witness
replied:
The problem is that we don't have a population which is not
subject to mandatory supervision to check, as a control group,
to determine whether or not it's effective. We have the popula
tion that was released prior to mandatory supervision, versus
the population that's currently being released under mandatory
supervision. However, the time periods are so different in terms
of the socio-ecomomic world that we're living in, that one
would question whether or not the statistics, comparing those
two groups in their recidivism, would be useful. (Transcript:
page 34.)
Mr. Trafford, counsel for the intervener, followed
up on that answer in his cross-examination by
asking why reformatory [i.e. provincial] inmates
are not an appropriate control group for purposes
of comparison. The witness answered:
Because of the very point that we were making at the
beginning of this; they're so very, very different. I don't think
comparing the success rates of people with very short sentences
and very minor types of crimes, with people from federal
penitentiaries who are serving longer sentences, for very much
more violent types of crime, are comparable populations.
(Transcript: page 51.)
In this regard, it is to be noted that subsection
15(1) of the Parole Act provides that in order to
be subject to mandatory supervision an inmate
must be otherwise eligible to be released solely as
the result of remission exceeding 60 days. No
mandatory supervision is superimposed upon a
remission period of 60 days or less. In order to
accrue up to 60 days of remission, the inmate's
term must be only 6 months or more. Such terms
are generally not imposed for grave perpetrations
of serious offences of the kind for which federal
inmates are convicted. In passing, it is noted, also,
that the percentage of federal inmates who choose
to forego release on mandatory supervision is
"infinitesimal". (Transcript: page 44.) Almost all
federal inmates who are eligible for conditional
release on mandatory supervision, accept it.
In 1965, the Canadian Committee on Correc
tions (the Ouimet Committee) was established. Its
report, Toward Unity: Criminal Justice and Cor
rections, is dated March 31, 1969. In reviewing
remissions of terms of imprisonment which date at
least from the enactment of section 62 of the
Penitentiary Act, 1868 [31 Vict., c. 75] and in
reviewing the parole regime, the Ouimet Commit
tee in its cited report (Tab. 11), noted that "only
about 60 percent of penitentiary inmates who are
eligible to be considered for parole do apply." At
that time, once an inmate's remission period was
equal to the remainder of his or her unexpired
term, the inmate was released unconditionally. So,
the committee reasoned, at page 349 of its report:
If the inmate is granted parole, the statutory remission
period becomes part of the parole period and if his parole is
forfeited or revoked he loses the credit for statutory remission
and must serve the full sentence less whatever earned remission
he has to his credit. Many inmates come to the conclusion that
they prefer to complete their sentence in the institution rather
than place their statutory remission period in jeopardy.
The Ouimet Committee recommended (page
351) "that the same remission provisions apply to
inmates of federal and provincial prisons that the
provision for [what is now called mandatory super
vision] as outlined above apply equally to all." It
made its recommendations for mandatory supervi
sion because, as it reasoned, inmates who pose less
risk to society are the ones who are accorded
parole, whereas inmates who pose the greatest
danger were then being released on remission
directly into society after completing approximate-
ly two-thirds of their terms, without any conditions
or supervision.
Parliament did not implement the Ouimet Com
mittee's recommendation about applying mandato
ry supervision equally to provincial and federal
inmates, but it did enact legislation instituting
mandatory supervision for federal inmates in the
Criminal Law Amendment Act, 1968-69 [S.C.
1968-69, c. 38]. That statute amended the Parole
Act and the Penitentiary Act and the new regime
was proclaimed to be in force on August 1, 1970.
Further changes were effected by the Criminal
Law Amendment Act, 1977 [S.C. 1976-77, c. 53].
As of July 1, 1978, all remission had thereafter to
be earned. Provisions for forfeiture were standard
ized for both federal and provincial inmates. Prov
inces were authorized to create provincial parole
boards in regard to provincial inmates. The prov
inces of Ontario, Quebec and British Columbia
have done so, while in those provinces (and territo
ries) which have declined to do so, the National
Parole Board continues to exercise its jurisdiction.
In order to complete this broadly-stroked sketch
of corrections to date, it may be noted that Royal
Assent was accorded to Bill C-67, An Act to
amend the Parole Act and the Penitentiary Act
[S.C. 1986, c. 42] on July 24, 1986. In 1983, the
National Parole Board had been found by the
Supreme Court of Canada to have no jurisdiction
for its then recently instituted practice of "gating"
inmates whom it considered dangerous, upon the
instant of their release on mandatory supervision.
That decision is reported as R. v. Moore; Oag v.
The Queen et al., [1983] 1 S.C.R. 658; 33 C.R.
(3d) 97.
Section 5 of Bill C-67 (with companion legisla
tion in Bill C-68 [An Act to amend the Parole Act,
the Penitentiary Act, the Prisons and Reformato
ries Act and the Criminal Code, S.C. 1986, c. 43])
was proclaimed to be in force on July 25, 1986
[SI/86-147]. The legislation accords jurisdiction to
the National Parole Board, after an in-person
hearing, to decline to permit an inmate to be even
conditionally released on mandatory supervision.
Standard new mandatory conditions of release
(Exhibit 3) are now applied to both parole and
mandatory supervision. (Transcript: pages 45 to
47.) Essentially those conditions abjure the
released inmate to "obey the law and keep the
peace"—an utterly unexceptionable require-
ment—and, basically, to maintain prescribed com
munication with the parole supervisor.
The salient point of the plaintiffs constitutional
attack on the regime of mandatory supervision
resides in the fact that, throughout the past years,
and unto the present, prisoners released from pro
vincial institutions as a result of remission have not
been, and are not, affected by nor subject to the
mandatory supervision regime. Such provincial
inmates, it is argued, are released directly into
society without supervision (if they do not apply
for or are not granted parole) and enjoy the same
rights and privileges as those of any resident of
Canada. Counsel for the plaintiff argues that,
based on this one distinguishing feature, the length
of the term of imprisonment to which the convict is
sentenced, the federal inmate class is inexorably
forced to comply with the requirements of manda
tory supervision, regardless of whether or not it be
appropriate either to the needs of society or to
those of the prisoner. (The prisoner's choice,
accorded in subsection 15(3) of the Parole Act,
somewhat dilutes counsel's argument, here.) In
contradistinction, the plaintiff's counsel argues,
the provincial inmate class is allowed the benefit of
enjoying the full rights of any other resident of
Canada, regardless of whether that liberty be
appropriate to the needs of society or of the
prisoner.
(The above argument is generally correct in a
factual sense, but it does ignore the possible
burden of a probation order, imposed on the con
vict by the sentencing judge, to take effect upon
release from a provincial prison. See: R. v. Con-
Stant (1978), 40 C.C.C. (2d) 329 (Man. C.A.);
leave to appeal to the Supreme Court of Canada
denied: [1978] 1 S.C.R. vi.)
So, it is argued on the plaintiffs behalf:
Individuals who may in all respects be equal in terms of
qualifications for reintroduction into the community can be
treated differently for no reason other than the fact that in the
first instance the sentence imposed required that the sentence
be served in a penitentiary or a reformatory. It is submitted
that the one distinguishing feature between these two classes
cannot justify the unequal treatment to which they are subject
ed on any rational basis and is entirely arbitrary.
Hunter et al. v. Southam Inc. (1984), 14 C.C.C. (3d) 97,
(S.C.C.)
Re Blainey and Ontario Hockey Association et al. (1986), 54
O.R. (2d) 513 at 529 (Ont. C.A.)
(Plaintiff's Memorandum, pages 12 and 13.)
The plaintiff's counsel argues that since all
inmates are entitled to remission, and since only
federal inmates may be subjected to the choice of
undergoing mandatory supervision or foregoing
their remission, there is an inequality there which
offends against section 15 of the Charter.
No counsel contended that subsection 15(2) of
the Charter can be invoked here. Counsel for the
plaintiff urged that despite the reasons of Mr.
Justice Locke in Logan v. Dir. of William Head
Inst'n et al. (judgment dated 30/5/86, B.C.S.C.—
Victoria Registry 86/1307), mandatory supervision
is not the benefit, rather, it is remission. In effect,
the plaintiffs counsel argues, the superimposition
or bonding of mandatory supervision onto the fed
eral inmate's remission simply spoils the benefit of
the remission for federal inmates.
All counsel dealt with the question of how to
apply the equality rights of subsection 15(1) of the
Charter to federal and provincial inmates. In Re
McDonald and The Queen (1985), 21 C.C.C. (3d)
330, the Ontario Court of Appeal speaking
through Morden J.A. indicated, at page 349, that:
It can reasonably be said, in broad terms, that the purpose of s.
15 is to require "that those who are similarly situated be
treated similarly": Tussman and tenBroek, "The Equal Protec
tion of the Laws", 37 Cal. L. Rev. 341 (1948), at p. 344. (Tab
24.)
All counsel accepted that test of "similarly situat
ed" in the case at bar. So if that test be, as it
certainly appears to be, an apt one, then of course,
the notion of merely "similarly" situated folk
being treated "similarly" does not import, nor
exact, arithmetical accuracy in either equating or
distinguishing their undoubted constitutional
rights to equal protection and equal benefit of the
law without discrimination.
All counsel cited and referred to the decision of
the British Columbia Court of Appeal in Rebic v.
Coliver Prov. J., [1986] 4 W.W.R. 401, rendered
on May 12, 1986. The majority and minority
concurred in the result, which was to dismiss the
appeal against the custodial treatment of a person
found "not guilty by reason of insanity". Both
factions, however, Esson J.A. with Cheffins J.A.
concurring (at page 422), and MacFarlane J.A.
(at pages 412-413), agreed that the first analysis
in considering subsection 15 (1) of the Charter is to
determine whether the plaintiff or applicant be
truly "similarly situated" with those in regard to
whom he or she alleges unequal treatment. Such a
process of analysis seems apparent also in the
words of Thorson J.A. for the majority of the
Ontario Court of Appeal in R. v. Swain (1986), 50
C.R. (3d) 97, at page 148.
The plaintiff's contention here is that he is
similarly situated to provincial inmates but, since
the plaintiff is not permitted a free and clear
release on remission, he is treated differently and
without constitutional justification.
Criminality is not monolithic, either conceptual
ly, or as Parliament actually treats it in the Crimi
nal Code and certain other statutes of Canada
which deal with gravely offensive misconduct, but
because of the Hauser judgment, above cited,
cannot be classified as criminal law. It takes only
very little perspicacity to discern that one who
traffics in stolen auto parts inflicts less harm on
society than does one who traffics in addictively
soul-destroying drugs. Even a gross instance of the
former is less serious than a moderate instance of
the latter. So also shoplifting of goods under $200
in value is of minor criminal gravity compared
with armed robbery. Again, common assault is less
serious than assault with a weapon or causing
bodily harm, which, on the notional gradation of
gravity, is not so serious as aggravated sexual
assault.
Even within each statutory category of an
offence, the ultimate gravity of the crime depends
upon the qualities of the perpetrator and the
nature of the perpetration. That is why, except for
gross offences such as high treason and murder for
which Parliament has fixed the punishment at
imprisonment for life, there is good reason to
provide the sentencing court scope in the severity
of punishment to be imposed. In the case of R. v.
McCormick, [1979] 4 W.W.R. 453; 47 C.C.C.
(2d) 224, the Manitoba Court of Appeal affirmed
a term of three months imprisonment for a young
man who had committed an armed robbery, for
which the maximum term is imprisonment for life.
There, Huband J.A. is reported at pages 456
W.W.R.; 229-230 C.C.C. thus:
The factors to be considered in imposing sentence are not
disputed: public protection, deterrent effect on other potential
offenders, punishment of the accused himself and rehabilitation
of the accused. The weight to be accorded to these factors will
vary with the nature of the crime, the circumstances under
which it was committed and the individual who committed it.
These variables make it impossible to achieve uniformity in
sentencing. Indeed, the consistency towards which the court
must aim is consistency in ascribing the proper emphasis to
variable factors which will yield different results.
So it is that Parliament in its penal statutes has
declared categories of gravity for various criminal
depredations; and, except where, in a few instances
already noted Parliament was in no doubt about
fixing invariable punishments, it has empowered
courts of criminal jurisdiction to assess the apt
punishment within limits prescribed by Parliament
for those categories. In human affairs of this kind,
human judgment must operate. The judgment of
the legislator is complemented by the judgment of
the court. The Constitution, not least in section 15
of the Charter forbids arbitrary, perverse or capri
cious judgments being inflicted on our people.
Because the infinite variety of human conduct and
circumstance makes arithmetical accuracy in the
legislative and judicial judgments virtually impos
sible of attainment, the test of equality resides in
the similar treatment of people who are similarly
situated. Practical and reasonable as that test is, it
remains as it must, far from perfect equality unto
the most minute detail.
In terms of denunciation and punishment for
crime it is easy to identify the polarities. It is easy
to discern that the shoplifter and the terrorist are
not similarly situated, and ought not to be so
situated by a sentencing court. Between those
polarities the criminal law, reflecting the vast span
of criminal misconduct, differentiates by drawing
the lines at various stages or categories of grada
tion along that discernible continuum of offences
and offenders. Both law and the very nature of the
criminal depredation situate offenders differently.
So, if mandatory supervision be a detriment or
penalty engrafted to the statutorily accorded
remission of terms of imprisonment, as the plain
tiff's counsel contends, and if it be so alloyed into
and with remission as to constitute a wholly new
regime of conditional remission as the intervener's
counsel contends, makes little difference in this
context. There is no constitutional right to remis
sion. It is a statutory right only so long as Parlia
ment wills it and in such form and under such
conditions as Parliament wills. Without it, an
inmate would be lawfully imprisoned during every
last day of the term to which he or she is sen
tenced. So long as it be Parliament's judgment to
accord remission, under whatever conditions not
amounting to cruel and unusual treatment or pun
ishment, remission must be accorded so as not to
violate section 15 of the Charter.
The legislative provision for punishment is an
integral, normal aspect of penal legislation. Man
datory supervision, then, is at law an aspect of
punishment for criminal conduct. The notion of
punishment is comprehensive enough to include
treatment in the correctional sector of criminal
law. Is the opportunity to learn a trade in the
penitentiary to be struck down, or excluded,
because that opportunity is not seen to be suf
ficiently punitive? Similarly, the opportunity to be
conditionally released on mandatory supervision,
loathesome as it may seem to the plaintiff, is a
treatment which is hardly punishing in any objec
tive sense.
The punishment of offenders, including an ele
ment of retribution for the guilty affrontery of
criminal conduct, is imposed for the reasons identi
fied by Mr. Justice Huband in McCormick, above
cited. The more dastardly the deed, the more
onerous the punishment ought to be. But onerous
punishment does not need to be brutal, and it must
not be cruel and unusual.
Those who commit serious depredations are
legitimately punished by being kept under official
surveillance, in order to minimize their opportuni
ties and temptation to continue their offensive
conduct. In serving the terms to which they are
sentenced, they are surely under such surveillance
while they are kept in carceral custody within the
institution. The standard punishment for serious
criminal offences is, then, maintained until the
expiry of their terms for those—the overwhelming
majority, as it appears—who accept the opportu
nity to complete their terms outside of the peniten
tiary on mandatory supervision. They are required
to continue to undergo that aspect of their punish
ment which is surveillance, albeit markedly less
intensive, when they accept conditional liberation
for the remainder of their terms. Parliament
ordains that more onerous (but far from brutal)
punishment for those who have been convicted of
the more serious crimes. It is merely part of their
punishment for their crimes. It is not imposed on
those who have committed less serious offences.
Mandatory supervision is applied to federal
inmates serving longer terms who have been kept
' apart from Canadian society for longer times than
have provincial inmates. Its rational pupose is to
avoid the release of federal inmates, who have
been refused parole, directly into the community
without any of the supervision which is imposed on
parolees who generally present less risk to society.
The plaintiff has failed to demonstrate that
federal inmates are at all similarly situated with
provincial inmates who have been adjudged to
deserve terms of imprisonment of less than two
years. The defendant's counsel effectively presents
the inherent dissimilarity between federal and pro
vincial inmates, in arguing that, absent early
parole, the standard, but personally avoidable,
application of mandatory supervision to the most
culpable, the federal inmates, is an equal applica
tion of penalty among them which equality does
not necessarily demand for the less culpable. Its
duration corresponds with the length of the term
imposed. There is an exponentially intensifying
continuum of culpability which proceeds from the
minor to the grievous. A statutory line of differen
tiation (2 years) is drawn rationally, if somewhat
pragmatically, across it, always with allowance for
curial judgment of more sensitive distinctions of
culpability in the sentencing process. Those whose
depredations are more serious undergo a longer
confinement with more elaborate supervision
during the term to which they are sentenced. On
the other side of the line, the confinement is of
shorter duration, and if the inmate fails to obtain
parole and avoids the imposition of a probation
order, he or she is released without supervision.
This is not discrimination of the kind so evidently
condemned in section 15 of the Charter.
It is true that proved breach of the conditions of
mandatory supervision may lead to its revocation
and return to a carceral institution. It is true that
those standard conditions, expressed in Exhibit 3,
are more confining than complete liberty, but they
are, after all, an aspect of the penalty for convic
tion of a serious crime, or crimes. Pursuant to Bill
C-67 the federal inmate may apply to the National
Parole Board to be relieved of any of those condi
tions. Basically, if the federal inmate be law-abid
ing and keep the peace, he or she will not be
returned to prison. That condition, of course, is
hardly discriminatory.
The determination of the first question, for all
the preceding reasons is that the regime of manda
tory supervision expressed in section 15 of the
Parole Act, as amended, and in incidental legisla
tion and regulations, is of full force and effect, in
that it is not inconsistent with section 15 of Part I
of the Constitution Act, 1982.
SECTION 7 OF THE CHARTER
The alternative question posed for the Court
suggests that the regime of mandatory supervision
is inoperative in relation to the plaintiff, in that his
right to liberty under section 7 of the Charter has
been infringed, because he was never offered any
form of hearing to determine whether he should be
subject to mandatory supervision. It must be
accepted that the plaintiff did indeed have a hear
ing as to the fit sentence which was to be imposed
by the Court in consequence of his conviction.
Once an accused is convicted and sentenced to
undergo a term of imprisonment in a federal peni
tentiary, the principles of fundamental justice do
not exact any further adjudication during the serv
ing of the term imposed. Of course, matters which
of themselves require a hearing may arise while
the inmate is incarcerated, but they are inherently
extraneous to the term of imprisonment which has
been imposed. Such matters include the inmate's
own application for full parole, and sometimes
include applications for day parole or other
absences with leave. Revocation of parole or of
mandatory supervision are also included. Most
assuredly, too, the adjudication of inmate offences
by a disciplinary tribunal requires a hearing.
If an inmate be not involved in any of those
kinds of matters, he or she may uneventfully
undergo the punishment lawfully meted out by the
sentencing court, without any requirement for fur
ther adjudication. For an inmate who has not been
paroled, the time for mandatory supervision—that
standard aspect of the punishment imposed on
federal inmates—will eventually come.
The rare inmate will choose to waive conditional
release on mandatory supervision, pursuant to sub
section 15(3) of the Parole Act, and to remain in
custody. That choice on the inmate's part requires
no adjudication by anyone.
The inmate who does not opt to waive mandato
ry supervision will be notified in sufficient time to
apply to the National Parole Board for a modifica
tion of the standard conditions of release if he or
she wishes to do so. That action by the inmate
requires and is accorded an adjudication, accord
ing to the principles of fundamental justice. Such
an application may be made pursuant to the recent
amendments expressed in Bill C-67.
The plaintiff was released on mandatory super
vision before the enactment and proclamation of
those recent amendments. He elected to accept
mandatory supervision and he was accordingly
conditionally released despite his refusal to
acknowledge his conditions of release by his signa
ture. He is of course well aware of them because
they were explained to him and they are printed on
his certificate. Here are those conditions:
CONDITIONS OF MANDATORY SUPERVISION
You are to travel directly to the address as noted under
INSTRUCTIONS and report immediately to the parole supervisor
and as instructed thereafter.
You are to obtain authorization from the parole supervisor
before leaving the area designated by the Board.
You are to inform the parole supervisor immediately if arrested
or questioned by the police.
You are to obey the law and keep the peace.
To endeavour to maintain steady employment and, unless
otherwise instructed by the parole supervisor, to report at once
any change of circumstances such as employment, accident or
illness.
To report to the police X❑ yes ❑ no
if yes X❑ On a monthly basis
or ❑ as required hereafter
To obtain approval from the Parole Supervisor before:
(a) incurring debts by borrowing or installment buying:
(b) owning, possessing or having in your control firearms or
other weapons.
To report your initial address upon release, and also any change
of address, as soon as possible, to the parole supervisor.
The conditions are not very onerous, and they
certainly impose no greater fetters on the plain
tiffs liberty than were imposed when he was sen
tenced to his term of imprisonment. Indeed, the
liberty of which the plaintiff was lawfully deprived
upon having been sentenced is demonstrably
enhanced, even if not rendered absolute, by his
release upon those conditions.
Remembering that the plaintiffs conditional
release, his choice, constitutes a known, standard
aspect of his punishment, how could the principles
of fundamental justice require an adjudication on
those conditions any more than an annual adjudi
cation on each year of the term of imprisonment to
which he was sentenced? The principles of funda
mental justice do not require any such adjudica
tion.
Furthermore, the plaintiff led no evidence to
demonstrate that the conditions of release impose
any infliction of damage upon his psyche or secu
rity in particular, or upon those of any other
inmate. He obviously does not like them because if
he does not abide by them—again his choice—he
risks being re-incarcerated. Since, however, the
imposition of sentence already deprived the plain
tiff of his liberty through incarceration, those con
ditions do not constitute any further or more
intense deprivation of his liberty. He is obliged to
be careful. Everyone is obliged to be careful.
Although his liberty is more restricted than those
who are not federal inmates, it is greater than that
of an inmate who chooses to waive release, and it
is greater than it was before his release.
Because the plaintiffs right to liberty under
section 7 of the Charter has in no way been
infringed, it follows that he is not entitled to any
relief under subsection 24(1) of the Charter.
Accordingly, the regime of mandatory supervision
remains fully operative in relation to the plaintiff.
The determination of the issues propounded
herein generated constitutional questions of public
importance and interest. The resolution of the
issues is of greater import than the plaintiffs
personal interests. Therefore, the Court in the
exercise of its discretion awards no costs for or
against either party or the intervener in the cir
cumstances of this case.
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.