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