A-231-86
Guy Knockaert (Appellant) (Applicant)
v.
Commissioner of Corrections, Warden of Stony
Mountain Institution and Earned Remission
Board of Stony Mountain Institution (Respon-
dents) (Respondents)
INDEXED AS: KNOCKAERT V. CANADA (COMMISSIONER OF
CORRECTIONS)
Court of Appeal, Marceau, Hugessen and
Lacombe JJ.— Winnipeg, October 28; Ottawa,
November 21, 1986.
Constitutional law Charter of Rights Criminal process
— Double jeopardy — Inmate convicted of disciplinary
offence Sentenced to forfeit past earned remission —
Refusal to credit inmate with earned remission for month not
'punishment" for purposes of Charter s. 11(h) Canadian
Charter of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), ss. 1, 11 Constitution Act, 1867, 30 & 31 Vict., c. 3
(U.K.) IR.S.C. 1970, Appendix II, No. 5] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act,
1982, Item 1), ss. 91(27), 92(15) — Interpretation Act, R.S.C.
1970, c. I-23, s. 27.
Penitentiaries — Disciplinary offence Imposition of loss
of earned remission by Disciplinary Court and non-crediting of
earned remission for month by Earned Remission Board not
constituting double jeopardy 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 (as
added idem).
The appellant, an inmate of the Stony Mountain Institution,
was convicted by the Penitentiary Disciplinary Court of a
disciplinary offence and sentenced to forfeit thirty days of
earned remission then standing to his credit. The Earned
Remission Board of the penitentiary later decided that, because
of the appellant's misconduct in the month in which the offence
was committed, no earned remission would be credited to him
for that month.
This is an appeal from the Trial Division decision dismissing
an application for certiorari to quash the Board's decision. The
application was based on the argument that the Board's deci
sion violated paragraph 11(h) of the Charter in that it imposed
a second punishment for the same offence.
Held, the appeal should be dismissed.
Per Hugessen J. (Lacombe J. concurring): The Trial Judge
did not err in finding that the Board's refusal to grant remission
could not be characterized as a "punishment" for the purposes
of paragraph 11(h) of the Charter. According to the statutory
scheme in subsection 24(1) of the Penitentiary Act, earned
remission is credited to an inmate on a monthly basis as a
reward for good behaviour. Taking away already credited days
of earned remission for misbehaviour is punishment, but not the
withholding of an expected reward.
It is unthinkable that a refusal of the Earned Remission
Board to grant remission for a month could be used as a plea in
bar to a disciplinary offence charge. And if the Board's refusal
to award earned remission were "punishment for an offence",
then the other provisions of section 11 of the Charter would
come into play, a proposition which is difficult to accept. It
would also lead to the unacceptable result that the Parole
Board would be prohibited from denying release to an inmate
having a record of convictions for disciplinary offences. While
none of these considerations is necessarily decisive, they all tend
to suggest the conclusion reached by the Trial Judge.
Per Marceau J. (concurring in the result): The appeal should
be dismissed because section 11 of the Charter does not and
should not apply to disciplinary proceedings.
The meaning given to the word "offence" in section 27 of the
Interpretation Act, the use of the word "inculpé" in the French
version of section 11 and the marginal note of that section,
especially the French "Affaires criminelles et pénales", are all
indications that the word "offence" was taken in the restricted
sense of criminal or quasi-criminal offence. The most signifi
cant indication of the scope of section I I, however, is the fact
that several of the rights guaranteed therein have absolutely no
meaning outside a criminal or quasi-criminal context.
Nor should section 1 I be extended to disciplinary matters.
The procedural rights called for in different cases would be
better defined individually with respect to each disciplinary
code or regulation. Furthermore, such an extension would be
the source of extremely serious practical difficulties: how to
distinguish between cases where paragraph 11(h) would apply
and others where it would not, and how (and how long would it
take) to set the appropriate limits to the other guarantees
provided for in section 11. It is doubtful that the unrestricted
reliance on section 1 to confine and overcome the legal and
social difficulties raised by over-broad interpretations of specif
ic Charter provisions is appropriate.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
R. v. Wigglesworth (1984), 7 D.L.R. (4th) 361; 38 C.R.
(3d) 388 (Sask. C.A.), affirming (1983), 150 D.L.R. (3d)
748; 7 C.C.C. (3d) 170 (Sask. Q.B.); Re MacDonald and
Marriott et al. (1984), 7 D.L.R. (4th) 697; 52 B.C.L.R.
346 (S.C.); Downey v. The Queen, judgment dated May
16, 1985, Federal Court, Trial Division, T-937-85, not
reported; R. v. Mingo et al. (1982), 2 C.C.C. (3d) 23; 4
C.R.R. 18 (B.C.S.C.); Peltari v. Dir. of Lower Mainland
Reg. Correctional Centre (1984), 42 C.R. (3d) 103; 15
C.C.C. (3d) 223 (B.C.S.C.); Russell v. Radley, [1984] 1
F.C. 543; 11 C.C.C. (3d) 289 (T.D.); Belhumeur v.
Discipline Ctee. of Que. Bar Assn. (1983), 34 C.R. (3d)
279 (Que. S.C.); Law Society of Upper Canada v. Ska-
pinker, [1984] 1 S.C.R. 357; 9 D.L.R. (4th) 161.
COUNSEL:
Arne Feltz and Judy Elliott for appellant
(applicant).
Theodore K. Tax for respondents (respon-
dents).
SOLICITORS:
Legal Aid Manitoba, Ellen Street Commu
nity Legal Services, Winnipeg, for appellant
(applicant).
Deputy Attorney General of Canada for
respondents (respondents).
The following are the reasons for judgment
rendered in English by
MARCEAU J.: I agree with Mr. Justice Huges-
sen that this appeal [from the decision reported at
[1986] 2 F.C. 361] cannot succeed but my reasons
for coming to that conclusion are quite different
from his, so I will endeavor to set down my
separate views upon the sole issue that has to be
determined.
There is indeed only one issue raised in the
appellant's submissions and it can be fully set out
in a single question. Was the guarantee against
double jeopardy, given by paragraph (h) of section
11 of the Canadian Charter of Rights and Free
doms [being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)]', disregarded when the Earned Remission
' Which I reproduce here for convenience:
11. Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the
specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings
against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according
to law in a fair and public hearing by an independent and
impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(Continued on next page)
Board of the penitentiary where the appellant was
confined refused (pursuant to subsection 24(1) of
the Penitentiary Act, R.S.C. 1970, c. P-6 (as am.
by S.C. 1976-77, c. 53, s. 41)) to credit him with
his regular monthly remission days for the sole and
specific reason that he had been found in posses
sion of some article of contraband, while, for that
very same offence, he had already been sentenced
by a disciplinary court (in accordance with the
provisions of subsection 24.1(1) of the Penitentiary
Act (as added by S.C. 1976-77, c. 53, s. 41)) to
forfeit thirty of his past earned remission days.
Mr. Justice Hugessen would answer the ques
tion in the negative as did the learned Trial Judge
but with other considerations in mind. His
approach is much more straightforward. The gist
of his position is that paragraph 11(h) of the
Charter is not violated because failure to earn
remission is not a punishment. This approach, I
say it with respect, does not appear to me to be
really convincing. Punishment means "the imposi
tion of a penalty" and a penalty 2 is, in a broad
sense, a "disadvantage of some kind" imposed as a
consequence of a misbehavior which, it seems to
me, may include a loss of reward. Moreover, even
if the earning of remission days reducing the
(Continued from previous page)
(f) except in the case of an offence under military law tried
before a military tribunal, to the benefit of trial by jury
where the maximum punishment for the offence is impris
onment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or
omission unless, at the time of the act or omission, it
constituted an offence under Canadian or international law
or was criminal according to the general principles of law
recognized by the community of nations;
(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; and
(i) if found guilty of the offence and if the punishment for
the offence has been varied between the time of commis
sion and the time of sentencing, to the benefit of the lesser
punishment.
2 The definition given by The Shorter Oxford English Dic
tionary (1973) reads as follows:
(Continued on next page)
length of the sentence pronounced against him is
not automatic for an inmate, in the sense that it is
subject to good conduct, nevertheless it is not a
discretionary reward and remains such a normal
feature of the sentencing system that a prisoner is
entitled to expect a reduction of his sentence by
regular earned remission to the extent that the loss
of a periodic addition to his entitlement has to be
seen objectively as a sanction in the nature of a
punishment. I would not be prepared to disavow
what appears to me to be the implied finding of
the learned Trial Judge that the decision of the
Earned Remission Board amounted to a punish
ment, a finding which compelled her to deal with
the double jeopardy argument on another basis.
Yet, coming to the reasons of the learned Trial
Judge, I must say with respect that I can no more
accept her contention that paragraph 11(h) of the
Charter was not breached because only the sanc
tion of the Inmate Disciplinary Court, and not that
of the Earned Remission Board, had been inflicted
exclusively "for it", as the text of the provision
requires, that is to say for the commission of the
offence. It seems to me that the Earned Remission
Board, in its reasons for decision, leaves no doubt
that the appellant was denied his normal remission
for the month strictly and exclusively because he
had been found guilty of having contraband in his
possession.
Nor do I find compelling the other argument
used by the learned Trial Judge that there were
(Continued from previous page)
Penalty 1. Pain, suffering (rare). 2. A punishment imposed
for breach of law, rule, or contract; a loss, disability, or
disadvantage of some kind, either fixed by law for some
offence, or agreed upon in case of violation of a contract;
two aspects to the commission of the offence or
different purposes behind the two decisions. I am
not clear as to what was meant by a double aspect
to the commission of the offence since the particu
lar behaviour involved was, in the eyes of all
concerned, reprehensible for the sole reason that it
was prohibited by a rule of the institution and both
decisions were equally designed to sanction a
disobedience to that specific rule. It would appear
to me, in any event, that the protection against
double jeopardy can hardly be defeated by a mere
contention by a second punishing decision-maker
that he is looking at the offence in a perspective
different from that of the first one, or that he is
imposing his sanction with a different purpose in
mind. It goes without saying that an act may have
more than one legal consequence but, if all of them
are distinct punishments, I do not see how they can
be imposed separately, by different tribunals, with
out constituting the multiple punishments contem
plated by paragraph 11(h) of the Charter.
I am also prepared to accept, at least to a
certain extent the idea endorsed by the learned
Trial Judge that an individual having multiple
responsibilities to different parties may, at the
same time and by the same act, breach different
duties with the result that he may be said to have
committed different offences. As recalled by the
Trial Judge, this is basically the idea which has led
some courts to accept that a wrongdoer may be
validly exposed to both criminal penalties and
disciplinary sanctions after having noted that he
had specific duties not only to society but also to
his employer, or to the particular group to which
he belonged, or to an institution like a university or
the Parole Board. (See: R. v. Wigglesworth
(1984), 7 D.L.R. (4th) 361; 38 C.R. (3d) 388
(Sask. C.A.), aff g. (1983), 150 D.L.R. (3d) 748; 7
C.C.C. (3d) 170 (Sask. Q.B.); Re MacDonald and
Marriott et al. (1984), 7 D.L.R. (4th) 697; 52
B.C.L.R. 346 (sub nom. MacDonald v. Marriott)
(S.C.); Downey v. The Queen, unreported decision
of the Federal Court, Trial Division, Ct. file no.
T-937-85, judgment dated May 16, 1985). How
ever, I do not think that a situation of that type
exists here, the inmate's responsibility with respect
to his conduct as a detainee being only toward the
penitentiary's authorities. And, in any event, I
have difficulty in convincing myself that this
theory of multiple responsibilities toward different
parties—at least when the particular responsibili
ties involved are the same with respect to each
party and the duty breached is defined in the same
terms everywhere—is not somewhat artificial in
the face of a contention of "multiple jeopardy"
and impossible of any coherent and unarbitrary
application.
Why then do I nevertheless support the conclu
sion reached by Mr. Justice Hugessen and the
learned Trial Judge that the decision of the Earned
Remission Board cannot be impugned on the
ground that it violated paragraph 11(h) of the
Charter? For the simple reason that, in my view,
this provision has no application to disciplinary
matters.
I wish I had been able to deal with the case and
dispose of it without having to consider directly
this difficult question of the proper sphere of
application for section 11 of the Charter, the more
so since counsel for the applicant was the only one
who saw fit to make submissions with respect
thereto. But my difficulties with the positions
taken by both my colleague and the learned Trial
Judge do not permit me to avoid taking a view on
it.
The problem of whether section 11 applies to
disciplinary matters is one that has given rise to
much controversy since the decision of the British
Columbia Supreme Court in R. v. Mingo et al.
(1982), 2 C.C.C. (3d) 23, at page 36; 4 C.R.R. 18,
at page 30, where Toy J. held that section 11
applied only to offences which are dealt with in
regular courts, stating:
In my respectful view, the authors of the new Charter, when
they employed the unqualified word "offence" as opposed to
"criminal offence", were doing nothing more than providing for
the equal protection of Canadian citizens from breaches of
their rights under provincial as well as federal laws in so far as
public as opposed to private or domestic prohibitions were
concerned. The test of what constitutes an offence, falls to be
determined by examining the enactment and determining, in so
far as federal legislation is concerned, if the allegation is dealt
with by a court with jurisdiction to hear an indictable or
summary conviction offence. In the case of provincial legisla
tion, if the allegation is dealt with by a court with jurisdiction
to hear an offence triable under the provisions of the Offence
Act, R.S.B.C. 1979, c. 305. A cursory examination of several
provincial statutes as well as the Penitentiary Act, R.S.C. 1970,
c. P-6, and its regulations, satisfies me that the provincial
Legislatures as well as Parliament have provided in their
enactments for internal disciplinary procedures in addition to
the creation of "offences" which are dealt with exclusively in
public courts of competent jurisdiction.
The decision in Mingo was followed in a certain
number of cases but it was recently disavowed in
Peltari v. Dir, of Lower Mainland Reg. Correc
tional Centre (1984), 42 C.R. (3d) 103; 15 C.C.C.
(3d) 223 (sub nom. Re Peltari and Director of the
Lower Mainland Regional Correctional Centre et
al.) (B.C.S.C.) and in Russell v. Radley, [1984] 1
F.C. 543; 11 C.C.C. (3d) 289 (T.D.) after being
criticized by some academic commentators (see, in
particular: H. Kushner, "Charter of Rights and
Freedoms, Section 11—Disciplinary Hearings
Before Statutory Tribunals", 62 Can. Bar R. 638
(1984); Contra Y. Ouellette, "La Charte cana-
dienne et les tribunaux administratifs", 18 R.J.T.
295 (1984)).
The argument in support of an extended
application of section 11 is always developed
around the following propositions. Neither the lan
guage of section 11 nor the nature of the rights
intended to be protected thereby give any clear
indication that its sphere of application is to be
reserved to criminal or quasi-criminal proceedings,
that is to say: proceedings conducted in public
courts. Indeed, the word "offence" used in the text
is a very broad term which may include conduct
contrary to a provision of a code of discipline, and
the word "punishment" means simply sanction. A
wider application of the section based upon a
purposive interpretation is therefore quite possible,
and it is a possibility of which the Courts should
generously take advantage. Disciplinary regula
tions may provide for substantial penalties and
people subject to them need be accorded certain
basic procedural rights. It is true that some of the
protections guaranteed by section 11 can only be
understood in the context of a criminal process,
while others could not be made applicable to disci
plinary proceedings without qualification, but the
necessary limitations only have to be defined under
section 1 with reference to what is reasonable in a
free and democratic society.
Such is the argument, as I understand it, which
is made in support of an extended application of
section 11. I must say, with the greatest respect,
that I am not persuaded by it. I remain convinced:
first, that section 11 was not meant to apply to
disciplinary proceedings; and second, that the
intention of the drafters should in that regard be
respected.
1—The intended scope of section 11.
No one would deny, of course, that there is no
indisputable impediment in the wording of section
11 to an extension of its application beyond pro
ceedings in a regular court of law. To be sure, if it
were otherwise, there would be no discussion. The
key words "offence" and "punishment" can obvi
ously be given a meaning broad enough to cover
disciplinary matters, since a breach of any rule
including a mere rule of etiquette is an "offence"
according to the dictionaries and a "punishment"
as noted above can simply mean a sanction.
Besides, nowhere in the text is the word "court"
even mentioned, only the word "tribunal" is found.
But, to stress these points is, to me, quite irrele
vant, the question being not whether the words
used, taken in isolation, can be given an extended
meaning but whether in context they were meant
to be understood in that sense. In my view, the
indications that the word "offence" in particular
was taken in the restricted sense of a criminal or
quasi-criminal offence, that is to say, an offence
defined by Parliament (in the exercise of its crimi
nal law power under subsection 91(27) of the
Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by
Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1)]) or by a
Legislature (in attaching punitive sanctions to its
own prescriptions as authorized by paragraph
92(15) of that Act) and prosecutable only in a
regular court—are numerous and, taken together,
overwhelming.
Some of these indications are to be found in the
use of the words themselves. It is not to be forgot
ten that if, in common parlance, the English word
"offence" and the French correspondent "infrac-
tion" may both be used in the broadest sense, in a
legislative enactment such a use would be quite
unusual. The Interpretation Act, R.S.C. 1970, c.
I-23 in its section 27 refers to "offence" or
"infraction" as being the violation of an enactment
for which the offender may be prosecuted by
indictment or is punishable by summary convic
tion. True, the Interpretation Act has no direct
bearing on the construction of the Charter, but it
could not be without influence on the minds of
those who drafted the text and the members of
Parliament who approved it. More compelling still
is the presence, in the French version of the text, of
the word "inculpé". In both Le Petit Robert dic
tionary (1973) and Henri Capitant's authoritative
work Vocabulaire juridique [P.U.F., Paris]
(1930), an "inculpation" is defined as being:
"Imputation officielle d'un crime ou d'un délit Ã
un individu contre qui est, en conséquence, dirigée
une procédure d'instruction". To be "inculpé", in
the French language, means to be charged with a
crime or penal delict before a court of law (see on
those points: Belhumeur v. Discipline Ctee. of
Que. Bar Assn. (1983), 34 C.R. (3d) 279 (Que.
S.C.)).
Another indication is given by the marginal
notes which were already there when the text of
section 11 was approved by Parliament. Consider
ing the English marginal note "Proceedings in
criminal and penal matters", it is very unlikely
that the drafters could have spoken of "penal
matters" in the simple sense of matters involving
the possibility of a penalty, since penal matters
would then have included criminal matters and the
two expressions would not have been used to
describe what was obviously meant to be different
classes of matters. It is however, here again, the
French corresponding marginal note, "Affaires
criminelles et pénales", which is more telling. In a
French context, I do not think that les affaires
disciplinaires, the disciplinary matters, could ever
be confused with les affaires criminelles et
pénales, these being clearly different classes of
matters. I am not oblivious of the fact that mar
ginal notes do not form part of an act, which
makes their consideration for purposes of construc
tion questionable, but the Supreme Court has
approved the use of headings as aids to interpreta
tion, notably in the case of Law Society of Upper
Canada v. Skapinker, [1984] 1 S.C.R. 357; 9
D.L.R. (4th) 161, and the reasons given there
could apply equally to marginal notes. In any
event, I am looking to them only for what I refer
to as an indication of intent.
Finally, the most significant indication of what
was the scope of section 11 in the minds of its
drafters is, to me, suggested by looking at the
section as a whole. It is evident that several of the
rights therein guaranteed have absolutely no
meaning outside a criminal or quasi-criminal con
text. If it had been the intention, nevertheless, to
make the section applicable also in another context
it seems to me that some signs of these two
disparate contexts would have emerged in the
drafting of the section.
These are all, as I see it, unmistakable indica
tions that section 11 was not intended to have
application outside criminal or quasi-criminal mat
ters. But that, of course, is far from being decisive.
2—The extension of the intended scope of
section 11.
It has become trite to say, following the pro
nouncements of the Supreme Court, that the
Charter, as a constitutional document, must be
construed somewhat differently than other legisla-
tion. Being intended to be much longer-lived and
difficult to amend than ordinary legislation, it
must be approached with particular generosity and
construed as liberally as possible so as to give full
effect to the purpose behind the legislation. In that
spirit, it is true to say that the intention of the
drafters ought not to be seen as determinative with
respect to its interpretation. A broader scope than
the one originally intended may be suggested. But
obviously, for the suggestion to be acceptable, it is
not sufficient that the language be capable of
bearing the intended interpretation sought, it must
be clear that such extension would be desirable.
This simply does not appear to me to be the case
here. I understand disciplinary proceedings to be
proceedings conducted outside a regular court pur
suant to a particular code of conduct enforced by
sanctions, a code that exists primarily, not for the
common good of all citizens, but for the regulation
and the benefit of a particular group, and is appli
cable only to the members of that group. My
reluctance to support the inclusion of such pro
ceedings within the sphere of application of section
11 is due to a lack of conviction that such inclusion
would serve a real need and a fear that it would be
the source of extremely serious, if not simply
insurmountable, practical difficulties.
As mentioned above, the desire to extend the
scope of section 11 is based on the observation that
substantial penalties may be provided for in disci
plinary regulations and that certain basic proce
dural rights ought to be accorded to people subject
to them.
It is, of course, true that grave consequences
may flow from disciplinary proceedings, conse
quences that may, in some rare cases, go beyond
expulsion from the group or loss of some privilege
normally enjoyed by members of the group, and
may even include fine or imprisonment, although it
should be noted that the constitutional validity of
such extreme punitive forms of disciplinary mea
sures (not really the case here, be it said paren
thetically, since the sentence imposed by the
Criminal Court remains constant) has never been
clearly established. And, I too firmly believe that
disciplinary proceedings require procedural rules
aimed at protecting from abuse those who may be
subject to them. But, these procedural rules need
not be enshrined in the Constitution. There is no
one disciplinary law; rather, there are many differ
ent disciplinary codes or sets of disciplinary regu
lations and the procedural rights each may call for
would be better defined individually with respect
to each one, as was done, to some extent at least,
in the past. Many groups of people subject to
special codes of conduct and thus liable to discipli
nary sanctions (I think of medical practioners,
lawyers and university professors) have been
accorded various procedural protections, either in
special legislation or at common law, long before
the Charter was promulgated. The Charter was
meant to define and guarantee the most basic
rights of the citizens, not to be the foundation of
all procedural schemes designed to protect persons
from possible abuses by some authorities. I am not
convinced that there is a real need to extend the
intended scope of section 11.
But, in fact, what above all motivates by reluc
tance to such an extension is that the inclusion of
disciplinary proceedings in the sphere of applica
tion of section 11 is bound, as I see it, to be the
source of extremely serious, if not insurmountable,
practical difficulties.
A first problem, which cannot fail to immediate
ly come to mind in the course of a discussion of the
protection against double jeopardy, would be the
problem of the interrelation between the two dif
ferent levels of proceedings, criminal or quasi-
criminal on the one hand and disciplinary on the
other. It would be unthinkable that proceedings at
one level could automatically exclude proceedings
at the other. It was suggested that this problem
only calls for an approval of the idea, referred to
above, that the same act, if committed in breach of
one's duties and responsibilities toward different
parties, can be seen as constituting different
offences. To give effect to that idea, it was said,
the test for the coming into play of section 11 need
only be based on a "substantive" definition of
offence (that is to say, looking at its nature or
content), rather than a "formal" one (that is to
say, by reference to the decision maker) as adopt
ed in the Mingo decision. I have already said that I
could not refrain from seeing some artifice in that
idea and, in any event, if it is valid and may be
used to explain the possibility of a disciplinary
sanction in addition to a criminal sentence, there
appears to be no reason why it would not be so
valid in all cases. If, in those cases of plurality of
proceedings involving criminal or quasi-criminal
ones along with disciplinary ones, there are to be
situations where paragraph 11 (h) would be given
effect and situations when it would not, a practical
problem of distinguishing between them would
arise the solution for which I completely fail to see.
This, however, is of minor consequence com
pared to the practical difficulties which would
have to be faced if the other paragraphs of section
11 were to be seen as having effect in disciplinary
as well as criminal and quasi-criminal matters. I
do not think anyone will hesitate to admit that
most, if not all of the guarantees involved, cannot
reasonably apply to disciplinary matters directly
and without important qualifications, such qualifi
cations being bound to vary from one disciplinary
context to another. For the proponents of an exten
sion of the scope of section 11, the answer, as I
said, lies with the opening provision of the Charter
which establishes the general and basic principle
that the interests sought to be protected by its
provisions are not absolute but subject to limits.
But the limits under section 1 are only those
"prescribed by law" which are "demonstrably jus
tified in a free and democratic society". How
many legislative interventions would be required to
establish the necessary limits to the various proce
dural rights of section 11 in the context of differ
ent types of disciplinary proceedings and how
many court challenges will have to be settled?
Before the situation is relatively stabilized many
years may pass which is not quite in keeping with
the role assigned to a Charter. And I am not sure
that it does not go further. Until the decisions of
the Supreme Court direct otherwise, I will contin
ue to entertain serious doubt that the unrestricted
reliance on section 1 to confine and overcome the
legal and social difficulties raised by over-broad
interpretations of specific Charter provisions is
appropriate. It seems to me that section 1 cannot
have the same role with respect to a liberty, where
one is unrestrained in a particular activity, an
immunity, which protects one from certain acts of
another and a right stricto sensu, entitling one to
require something of another. Nor can it apply
equally, I suggest, to a right whose definition is
given using words of limitation particular to it and
to a right which does not have its own limitation
built in. In the case of an immunity or a right to
which specific duties correspond, it seems to me
that for the sake of security and stability, if not
mere rationality, the content of such right or
immunity need be precisely defined before think
ing of exceptional situations where the duties cor
responding to it could be reduced by using section
1. (See, on these points, P. Bender, "Justifications
for Limiting Constitutionally Guaranteed Rights
and Freedoms: Some Remarks about the Proper
Role of Section One of the Canadian Charter" in
The Canadian Charter of Rights and Freedoms
(Canadian Institute for the Administration of Jus
tice 1984), page 235 [also found at (1983) 13
Man. L.J. 669]; contra D. Gibson, The Law of the
Charter: General Principles (1986) 135-142).
Therefore, my view is that paragraph 11(h) of
the Charter which protects against double jeop
ardy has no direct application in disciplinary mat
ters and this is the reason why I can join Mr.
Justice Hugessen and the learned Trial Judge in
concluding that the contention of the applicant
that the decision of the Earned Remission Board in
his case was invalid because it had been made in
breach of paragraph 11(h) of the Charter is
unfounded. I would therefore affirm the judgment
of the Trial Division. This is not a case for costs
and in any event they have not been claimed.
* * *
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: This is an appeal from a decision
of Reed J. in the Trial Division. On the view which
I take of this matter, which appears to have been
shared by the Trial Judge, it raises a very narrow
point based on paragraph 11(h) of the Canadian
Charter of Rights and Freedoms, namely, whether
the refusal to grant remission can be properly
characterized as a "punishment" for the purposes
of that paragraph. In my opinion, Reed J. correct
ly found that it could not.
The matter arises in this way. The appellant is
an inmate of Stony Mountain Institution, a peni
tentiary. On October 17, 1984, he was found in
possession of a prohibited substance, allegedly
marijuana. He was charged in disciplinary court
for the disciplinary offence of possession of contra
band and, on November 1, he was found guilty and
sentenced to forfeit thirty days of earned remission
then standing to his credit. This was in accordance
with the provisions of subsection 24.1(1) of the
Penitentiary Act (R.S.C. 1970, chap. P-6 as
amended by S.C. 1976-77, chap. 53, s. 41):
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 and that accrued
after the coming into force of this section, but no such forfeit
ure of more than thirty days shall be valid without the concur
rence of the Commissioner or an officer of the Service desig
nated by him, or more than ninety days without the
concurrence of the Minister.
Subsequent to this conviction and sentence, at a
meeting of the Earned Remission Board of the
penitentiary, it was decided that, because of the
appellant's misconduct in the month of October
1984, no earned remission would be credited to
him for that month. This decision was made pursu-
ant to subsection 24(1) of the Penitentiary Act,
which reads as follows:
24. (1) Subject to section 24.2, every inmate may be credit
ed with fifteen days of remission of his sentence in respect of
each month and with a number of days calculated on a pro rata
basis in respect of each incomplete 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.
Commissioner's Directive 600-2-06.1, dated
1984-06-29, contains the rules made by the Com
missioner under the authority of the Penitentiary
Act with respect to earned remission. The relevant
paragraphs read as follows:
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.
REMISSION-TERMS AND CONDITIONS
13. Inmates whose performance is satisfactory shall earn fifteen
(15) days' remission for each month served.
No issue has been taken with respect to the
validity of the Commissioner's Directive as being a
proper determination within the meaning of sub
section 24(1) of the Act. The only point taken by
the appellant is that the refusal to credit him with
earned remission for the month of October 1984,
based as it was upon his having committed a
disciplinary offence in that month for which he
had already been convicted and sentenced, con
stituted a double punishment within the meaning
of paragraph 11(h) of'the Charter:
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 ...
For the purposes of the present case, I, like
Reed J., am prepared to assume, without deciding,
that a disciplinary offence committed by a peniten
tiary inmate is an offence within the meaning of
the Charter and that an inmate who is convicted
by a disciplinary court and suffers forfeiture of
remission has been "found guilty and punished
for" that offence. The point is by no means an easy
one or free from doubt and the most authoritative
pronouncement on a similar question of which I
am aware, the decision of the Saskatchewan Court
of Appeal in R. v. Wigglesworth (1984), 7 D.L.R.
(4th) 361; 38 C.R. (3d) 388, is presently on appeal
to the Supreme Court of Canada.
While I readily concede that there is a category
of what might be called "professional" disciplinary
matters which are not within the intendment of
section 11, I have great difficulty fitting the appel
lant's case into that category. Section 24.1 of the
statute, quoted above, describes the appellant's
conduct as an "offence" for which he has been
"convicted" in a "court". The result of that convic
tion has been to lengthen the time he will spend in
prison by depriving him of the benefit of remission
already earned; in short, a loss of liberty. The
prosecution of the appellant was undertaken not by
any private or voluntary body but by public au
thority. All these indicia, as it seems to me, point
to this being a criminal or penal matter. I can see
none that point the other way.
In my view, this appeal should be decided, as it
was in first instance, on the very narrow basis that
the administrative decision to refuse to award
earned remission to an inmate because of his mis
behaviour does not constitute punishment for that.
misbehaviour. While it is obviously the case that
the line between reward and punishment may
sometimes become blurred, it seems to me that the
statutory scheme of earned remission as set out in
subsection 24(1) of the Penitentiary Act and as
defined and expanded in the Commissioner's
Directive clearly envisages a monthly assessment
of each individual inmate's performance and that
such assessment properly takes into account
whether the inmate has conformed to institutional
and other rules during that month. While breach
of rules may bring punishment, compliance with
them, along with consistent application of effort to
the program, may also bring reward; though the
two may be opposite sides of the same coin, they
are nonetheless quite distinct.
It is not difficult to think of analogies, although
obviously none of them precisely parallels the
present situation. A teacher faced with an unruly
class may decide to keep them in late or not to
take them on a proposed trip or may do both. The
employee who has been found with his hand in the
till may expect to lose his job and will hardly be
heard to complain that he has not received his
year-end performance bonus. The worker who goes
on an illegal one-day strike may be punished by a
day's suspension and will properly receive no
salary for either day.
The matter may also be tested in another way.
As matters happened here, the Earned Remission
Board did not meet to consider the appellant's
entitlement for October 1984 until after the deci
sion of the disciplinary court. If the sequence had
been reversed, it is, in my view, unthinkable that
the appellant could have urged the refusal of the
Earned Remission Board to grant him remission
for the month of October as a plea in bar to the
disciplinary offence charge. Indeed, if the refusal
to award earned remission is, in fact, punishment
for an offence rather than a simple administrative
grant or withholding of reward, then the other
provisions of section 11 would also come into play,
a proposition which gives me great difficulty.
Finally, if the refusal to credit remission is to be
viewed as a punishment, then the denial of parole
must presumably be treated likewise. Can it seri
ously be argued that the Parole Board is prohib
ited from denying release to an inmate because the
latter has a record of convictions for disciplinary
offences? I think not.
While none of these considerations is necessarily
decisive, they all tend to suggest the conclusion
reached by Reed J.
One last point: There is a suggestion, in some
parts of the appellant's cross-examination, that
earned remission is in reality totally credited to an
inmate on entry into the institution and that it is
never truly "earned" in the sense of being awarded
to the inmate on a monthly basis as a result of a
decision that it has been merited in that month.
Indeed, the appellant at one point suggests that the
only decisions taken by the Earned Remission
Board are decisions to take away remission in
cases such as his, where there has been misbehavi
our. The point was not pleaded here or in the Trial
Division and the evidence in support of it, all from
the appellant's own mouth, is confused and contra
dictory. Accordingly I express no opinion as to
whether the result might be different if it were, in
fact, shown that remission was not being credited,
as subsection 24(1) clearly requires, in respect of
each month and following upon a decision that the
inmate has applied himself industriously during
that month.
I would dismiss the appeal. The Crown, in its
memorandum, does not ask for costs and I would
not grant them.
* * *
The following are the reasons for judgment
rendered in English by
LACOMBE J.: I agree with Mr. Justice Hugessen
and I would dispose of the appeal in the manner he
suggests.
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.