R. v. Milne, [1987] 2 S.C.R. 512

George Harvey Milne Appellant

v.

Her Majesty The Queen in Right of Canada Respondent

and

The Attorney General for Ontario and the Attorney General of British Columbia Interveners

indexed as: r. v. milne

File No.: 19444.

1987: January 27, 28; 1987: November 19.

Present: Dickson C.J. and Estey, McIntyre, Lamer, Wilson, Le Dain, and La Forest JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Sentences ‑‑ Dangerous offender ‑‑ Status of "dangerous" predicated on conviction for "serious personal injury offence" ‑‑ Accused's "dangerousness" based on a crime later removed from definition of "serious personal injury offence" ‑‑ Whether or not accused's continuing detention dependant on continuing status of "dangerousness" ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 157, 687(b).

Constitutional law ‑‑ Charter of Rights ‑‑ Dangerous offender ‑‑ Indeterminate detention ‑‑ Status of "dangerous" predicated on conviction for "serious personal injury offence" ‑‑ Accused's "dangerousness" based on a crime later removed from definition of "serious personal injury offence" ‑‑ Whether or not breach of Charter guarantees of fundamental justice, of freedom from arbitrary detention, of minimal criminal procedures, and of freedom from cruel and unusual punishment ‑‑ Canadian Charter of Rights and Freedoms, ss. 7, 9, 11, 12, 24(1).

Three years before the proclamation of the Canadian Charter of Rights and Freedoms appellant was convicted of gross indecency under s. 157 of the Criminal Code, found to be a dangerous offender and sentenced to indeterminate detention. Appellant's appeal from this determination and sentence was dismissed. Gross indecency was later deleted from the definition of "serious personal injury offence" with the result that conviction under that offence no longer permits the making of an application under Part XXI of the Code.

Appellant queried the lawfulness of his continued detention and commenced the present proceedings seeking a writ of habeas corpus ad subjiciendum with certiorari in aid and additionally, or in the alternative, a remedy pursuant to s. 24(1) of the Charter. The application was dismissed and the Ontario Court of Appeal upheld that decision. At issue here, in addition to the ss. 7, 9, 11, and 12 Charter issues considered in R. v. Lyons, is whether the continued detention of a person, found to be a dangerous offender and sentenced to indeterminate detention, is valid under the Charter where the offence of which he was convicted is no longer one in respect of which indeterminate detention may be imposed.

Held (Wilson J. dissenting in part and Estey J. dissenting): The appeal should be dismissed.

Per Dickson C.J. and McIntyre, Lamer, Le Dain and La Forest JJ.: The present Part XXI of the Criminal Code does not infringe the Charter: R. v. Lyons.

A change in the law that deletes the offence of which the appellant was convicted from the list of offences in respect of which indeterminate detention may be imposed does not alter the status of a dangerous offender. The detention of a "dangerous offender" is not reviewable by writ of habeas corpus or under ss. 9 or 12 of the Charter, even if the offender ceases to have the characteristics of dangerousness that formed the basis for his indeterminate detention. The argument that "dangerousness" must be a continuing element does not properly reflect the nature, purpose or effect of the Part XXI sentence, is not supported by the plain words of s. 688 of the Code, and misconceives the nature, purpose and effect of the Parole Board's review procedure. Continuing detention is not premised on the status of "dangerousness" under existing law respecting dangerous offenders. In sum, the appellant has the same protections as those afforded any other person who is convicted of an offence and sentenced to a period of incarceration. He had a right to appeal when the sentence was pronounced and he may apply for parole at prescribed times. But like any other person who is properly convicted and sentenced, he must otherwise serve his sentence according to its tenor.

The continued detention of the accused under Part XXI imposed following his conviction for gross indecency under the pre‑existing law does not amount to cruel and unusual punishment or arbitrary detention.

Article 15 of the United Nations International Covenant on Civil and Political Rights, which provides that if the penalty for an offence is reduced after its commission, the offender is to benefit thereby, does not invalidate the appellant's sentence. Assuming it could apply to his situation, it must be read in the light of s. 11(i) of the Charter.

Per Wilson J. (dissenting in part): The accused had no knowledge when he pleaded guilty to the offences of which he was convicted that the Crown intended and had been instructed by the Attorney General to make an application under Part XXI of the Code. The Crown may have been entitled to function in this way when the Part XXI order was made prior to the coming into force of the Charter, but, for the reasons given in Lyons, accused's continued incarceration pursuant to an order made in these circumstances cannot be justified subsequent to the coming into force of s. 7 of the Charter. The accused accordingly is entitled to relief under s. 24(1) of the Charter.

Per Estey J. (dissenting): The continued incarceration of the appellant offends his right under s. 12 of the Charter. The prospect of a person's serving an indefinite sentence in a penitentiary for an offence no longer attracting such a term of imprisonment under the Criminal Code is "cruel and unusual" as this expression has been defined. Parliament itself found this sentence to be disproportionate when it amended Part XXI and it only remained for the courts to apply the Charter as a matter of law to appellant's present situation.

Sections 7 and 9 of the Charter might also be offended but the issues arising under ss. 7, 9, and 12 are so interwoven as to render this appeal an unsatisfactory base for any extension of the analysis of these rights.

Since habeas corpus with certiorari in aid would be an inappropriate remedy if the time already served by appellant were less than the proper sentence, a court must turn to s. 24(1) of the Charter. The matter should be remitted to the trial judge, notwithstanding the fact that he is now functus, for an assessment of the appropriate sentence.

Cases Cited

By La Forest J.

Followed: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309; distinguished: Mitchell v. Attorney General of Ontario (1983), 1983 CanLII 1856 (ON SC), 35 C.R. (3d) 225; referred to: R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 11 C.C.C. (3d) 336; R. v. Wigman, 1985 CanLII 1 (SCC), [1987] 1 S.C.R. 246; R. v. Konechny (1983), 1983 CanLII 282 (BC CA), 10 C.C.C. (3d) 233.

By Wilson J. (dissenting in part)

R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309.

By Estey J. (dissenting)

R. v. Smith (Edward Dewey), 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309; R. v. Wigman, 1985 CanLII 1 (SCC), [1987] 1 S.C.R. 246.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 7, 9, 11, 12, 24(1).

Criminal Code, R.S.C. 1970, c. C‑34, Part XXI, ss. 157, 617, 687(b) [rep. & sub. 1976‑77, c. 53, s. 14; rep. & sub. 1980‑81‑82‑83, c. 125, s. 26], 688, 695.1, 710.

International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966), art. 15.

Interpretation Act, R.S.C. 1970, c. I‑23, s. 35(d).

Parole Act, R.S.C. 1970, c. P‑2, s. 10(1)(a).

Supreme Court Rules, SOR/83‑74, s. 32(4).

APPEAL from a judgment of the Ontario Court of Appeal dismissing an appeal from a judgment of Montgomery J. dismissing an application for habeas corpus ad subjiciendum with certiorari in aid or alternatively for a remedy pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms. Appeal dismissed, Wilson J. dissenting in part and Estey J. dissenting.

Ronald R. Price, Q.C., and John Hill, for the appellant.

Ivan Whitehall, Q.C., and Roslyn J. Levine, for the respondent.

Ian MacDonnell, for the intervener the Attorney General for Ontario.

Joseph Arvay, for the intervener the Attorney General of British Columbia.

The judgment of Dickson C.J. and McIntyre, Lamer, Le Dain and La Forest JJ. was delivered by

[1]. La Forest J.‑‑This appeal raises several general issues identical to those addressed in R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, regarding whether the dangerous offenders provisions of the Criminal Code, R.S.C. 1970, c. C‑34, Part XXI, ss. 687‑695 as amended, are constitutionally valid having regard to the rights guaranteed by ss. 7, 9, 11 and 12 of the Canadian Charter of Rights and Freedoms. In addition, it raises a number of specific issues regarding whether a person who was convicted before the commencement of the Charter of what was then, but is no longer, "a serious personal injury offence" under Part XXI and found to be "a dangerous offender" under that Part, and in consequence sentenced to "detention in a penitentiary for an indeterminate period in lieu of any other sentence", can now have that detention reviewed either by means of a writ of habeas corpus with certiorari in aid on the ground that he is no longer a dangerous offender, or under the Charter on the ground that such detention constitutes arbitrary detention or imprisonment (s. 9) or cruel and unusual punishment (s. 12). The general issues have already been discussed in Lyons. The present judgment is, therefore, largely confined to the specific issues.

Facts and Procedural History

[2]. On June 20, 1979, some three years before the Charter was proclaimed, the appellant George Harvey Milne pleaded guilty, before His Honour Judge Denroche of the British Columbia Provincial Court, to five counts of gross indecency contrary to s. 157 of the Criminal Code. The offences occurred over a period of nine months and involved sexual activity with boys between the ages of thirteen and sixteen. On the same day, the Crown requested and was granted an adjournment to enable it to bring a dangerous offender application under Part XXI of the Code. The application was subsequently made before the same judge on May 29, 1980.

[3]. At that time, s. 687 of the Code defined "serious personal injury offence" to include gross indecency. Section 687(b) then read as follows:

687. ...

(b) an offence mentioned in section 144 (rape) or 145 (attempted rape) or an offence or attempt to commit an offence mentioned in section 146 (sexual intercourse with a female under fourteen or between fourteen and sixteen), 149 (indecent assault on a female), 156 (indecent assault on a male) or 157 (gross indecency). [Emphasis added.]

I should add that, similar to the situation that now exists, for the dangerous offenders provisions to apply to these sexual offences, it was necessary to establish to the satisfaction of the court that "the offender, by his conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted, has shown a failure to control his sexual impulses and a likelihood of his causing injury, pain or other evil to other persons through failure in the future to control his sexual impulses" (s. 688(b)).

[4]. The judge noted that the appellant had previously been convicted of six property offences, one bail offence and three indecent assault offences, all against males. He concluded that the appellant had, by his conduct, shown a failure to control his sexual impulses, a pattern that was likely to continue in the future and to cause injury, pain or other evil to other persons. He, therefore, found the appellant to be a dangerous offender. He was also satisfied that a sentence of detention for an indeterminate period in lieu of any other sentence was necessary because of "how little change has been effected in the offender's conduct to date, the lack of motivation [to change] exhibited up until the time of his arrest on the present charges and the only available figures on recidivism". The appellant's appeal from this determination and against sentence to the British Columbia Court of Appeal (Taggart J.A., McFarlane and Carrothers JJ.A. concurring) was dismissed on March 10, 1982.

[5]. On January 4, 1983, s. 687(b) of the Code was amended by S.C. 1980‑81‑82‑83, c. 125 s. 26. These amendments deleted the offence under s. 157 (gross indecency) from the definition of "serious personal injury offence". This means that a conviction under s. 157 no longer permits the making of an application under Part XXI of the Code.

[6]. On November 14, 1984 the appellant commenced the present proceedings by way of originating notice of motion in the Supreme Court of Ontario. He sought a writ of habeas corpus ad subjiciendum with certiorari in aid and additionally, or in the alternative, a remedy pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, which had been proclaimed into force subsequent to the commencement of his sentence. The proceedings were brought for the purpose of determining the lawfulness of his continuing detention under the indeterminate sentence. They were instituted in Ontario because the appellant was at that time incarcerated in Warkworth Institution, a penitentiary located in that province.

[7]. On December 11, 1984, Montgomery J., dismissed the application. He noted, however, that the appellant was not left without a remedy. "He may make application to the National Parole Board and attempt to convince that body that he is no longer a danger to the community. An accused who is sentenced to a term of preventive detention having exhausted his appeal remedies ought in my view to serve his sentence unless the Parole Board on subsequent review after an appropriate amount of time has been served finds that he is no longer a risk to the public."

[8]. An appeal from Montgomery J.'s decision was dismissed, with brief written reasons, by the Ontario Court of Appeal (Dubin, Morden and Grange JJ.A.) on June 10, 1985. In their opinion "the amendment to the Criminal Code did not affect the validity of the detention of the appellant". On December 10, 1985, leave to appeal to this Court was granted.

[9]. On June 23, 1986 constitutional questions were stated by the Chief Justice in the following form:

1. Whether the provisions of Part XXI of the Criminal Code of Canada, dealing with an application for finding, and sentencing, an individual as a dangerous offender, in whole or in part, infringe or deny the rights guaranteed by ss. 7, 9, 11 and/or 12 of the Canadian Charter of Rights and Freedoms?

2. If so, then are the provisions of Part XXI of the Criminal Code, in whole or in part, justified on the basis of s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?

It should be noted that these are identical to the questions stated in the Lyons appeal.

[10]. Pursuant to notice under R. 32(4) of the Supreme Court Rules, the Attorneys General of Ontario and British Columbia subsequently intervened in the appeal.

The Issues

[11]. As already intimated, the issues involved in the constitutional questions stated by the Chief Justice have already been fully discussed in Lyons where I concluded that the present Part XXI does not contravene the Charter rights referred to, and I find it unnecessary to add anything to the analysis there made. I shall therefore confine myself to the issues that are specific to this case.

[12]. The appellant's principal argument, which I shall for convenience refer to as the "continuing status argument", is deceptively simple and may thus be stated. Part XXI provides a mechanism for determining whether a person convicted of a "serious personal injury offence" is a "dangerous offender". As a consequence of this determination, a person labelled as having the "status" of a dangerous offender may be sentenced to a period of indeterminate detention, but only for as long as the offender continues to evince the characteristics that are comprised in the "status" of dangerousness. If he ceases to do so, the basis for his incarceration vanishes and his detention may be reviewed by means of a writ of habeas corpus, or under the Charter on the ground that continuing to detain him amounts to arbitrary detention or imprisonment (s. 9), or cruel and unusual treatment or punishment (s. 12).

[13]. It follows, so the argument goes, that when a court is called upon to review the continued detention of the offender, what is sought is not a review of the initial determination that the offender was dangerous, but rather a determination of whether he or she continues to be dangerous. The latter determination, the argument continues, must be made in light of the current provisions of Part XXI. In the appellant's case, this means that he can no longer be said to possess the requisite characteristics of dangerousness because the crime for which he was convicted, gross indecency, is no longer included in the definition of "serious personal injury offence" (s. 687). His status has therefore ceased to exist and his continued detention can no longer be justified. In other words, continuing detention is premised on a condition or status of dangerousness under existing law and therefore, it is argued, once that status no longer attaches, the offender must be released. The review by the Parole Board provided by the legislation is, therefore, not an adequate or appropriate remedy because the criteria the Board applies do not, if this argument is accepted, properly address the question whether an applicant should remain in detention, in that they do not oblige the Board to consider whether he is "dangerous" having regard to the current Code provisions.

[14]. So far as Charter review is concerned, the argument continues, the Charter is not being applied retrospectively. The original pre‑Charter labelling and sentencing are not, it is said, being reviewed. Instead the Charter review is aimed at determining whether the appellant continues to have the status of a dangerous offender under existing law.

[15]. It is obvious that the main reason the "continuing status" argument is advanced is to forestall a claim that the appellant, in now seeking to have the legality of his detention reviewed, is endeavouring to have the earlier decisions of the British Columbia Courts reviewed in light of the 1983 Criminal Code amendments and the Charter, both of which came into force long after the original sentence was pronounced and the appeal process exhausted.

[16]. In developing this argument, counsel for the appellant referred to several cases. One was Mitchell v. Attorney General of Ontario (1983), 1983 CanLII 1856 (ON SC), 35 C.R. (3d) 225 (Ont. H.C.), where the status argument also appears to have been raised. The facts of that case bear a considerable resemblance to the present. There, the applicant, after having been convicted of fourteen property offences, was found in 1970 to be an habitual criminal under the then existing habitual criminal provisions of the Code and was sentenced to an indeterminate sentence. In 1977, long after he had unsuccessfully appealed this sentence, the habitual criminal legislation was repealed and the dangerous offender provisions of the Code were enacted under which the applicant could not have been declared a dangerous offender. After the enactment of the Charter, the applicant applied for a writ of habeas corpus ad subjiciendum with certiorari in aid, and in the alternative for relief pursuant to s. 24(1) of the Charter.

[17]. The judgment in that case affords support for that portion of the appellant's argument that suggests that it is the present continuing detention, and not the original sentence, that is being subjected to review and that so far as Charter review is concerned, this does not amount to giving it a retroactive or retrospective application. Linden J. had this to say at p. 229:

The imposition of the sentence of preventive detention is not being challenged in this application. Rather, the applicant has invited this court to find that his continued detention pursuant to that sentence violates his rights to be protected against cruel and unusual treatment or punishment, and not to be arbitrarily detained or imprisoned. The applicant relies upon changes to the provisions of Pt. XXI of the Criminal Code, R.S.C. 1970, c. C‑34, and the enactment of the Charter of Rights in support of these allegations. [Emphasis in original.]

At page 232, he continued:

Before passing on to the merits of the application, it also should be noted that no issue as to the retroactive or retrospective application of the Charter arises on the facts of this case. This application is based upon alleged infringements of the Charter occurring at the present time as a result of the continuing incarceration of the applicant. None of the decisions of the various courts and of the parole board is being challenged. Nor is the legality of the detention of the applicant prior to the coming into force of the Charter under attack.

[18]. As I read it, however, the Mitchell case gives the appellant no assistance regarding that aspect of his argument that suggests that in order for his detention to be valid, the crime for which he was convicted must still be a serious personal injury offence that could justify an application under Part XXI. Rather, as I read the judgment, Linden J. would not have released him on that ground. His decision rests squarely on his view that if it could be shown on a subsequent application that the applicant was not a menace to society but was instead merely a social nuisance, his continued detention would amount to cruel and unusual punishment and so be invalid as violating s. 12 of the Charter. On the subsequent application, again before Linden J., the applicant's continued detention was found to violate s. 12 and his release was ordered even though he had twice earlier, when released, violated the terms of his parole and despite the fact that the Parole Board had, even after Linden J.'s earlier decision, refused to grant him parole.

[19]. To fall within the rationale of this case, therefore, the appellant would have to establish that continued indeterminate detention for gross indecency in circumstances like those in the present case constitutes cruel and unusual punishment. Counsel for the appellant did argue the general proposition that Part XXI was invalid as amounting among other things to cruel and unusual punishment or arbitrary detention, but that argument fails for the reasons given in Lyons. He also attempted to underline that the offence committed by the appellant did not appear to be dangerous in the same sense as those now listed in Part XXI. However, he at no time argued that, assuming the general validity of Part XXI, it would amount to cruel and unusual punishment or arbitrary detention to subject the appellant to indeterminate detention because the offence of which he was convicted was not sufficiently dangerous to warrant such detention. It would have been very difficult for him to do so. While there was no violence involved, and so no element of dangerousness in that sense, the evidence revealed that the appellant was a very manipulative person who engaged in a pattern of behaviour in which he befriended young boys and then induced them to participate in sexual activities by first getting them to drink to excess. The evidence also revealed that the boys involved in the series of incidents that led to the charges that resulted in his being declared a dangerous offender had suffered varying degrees of psychological harm from these encounters. The effect on one of them, for example, was described as "very traumatic" and as having "affected the boy's development severely". The appellant is thus far from being merely a social nuisance like the applicant in the Mitchell case, but has persisted in behaviour of a kind that could cause injury, pain or other evil similar to the sexual offences still included in s. 687(b). In my view, therefore, his continued detention for an indeterminate period does not constitute cruel and unusual punishment or arbitrary detention.

[20]. Counsel for the appellant also relied on the Ontario Court of Appeal decision in R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 11 C.C.C. (3d) 336, as support for his continuing status argument. In that case, the validity of s. 688 of the Code was scrutinized by the Court of Appeal in light of the Charter, which had been proclaimed since the trial judge's decision had been rendered. In discussing the timing of the appeal, Lacourcière J.A., writing for the court, noted at p. 352:

We agree with Mr. Frost's submission that because the Charter came into force after the appellant was found to be a dangerous offender, the sections of the Charter invoked by the appellant have no application to the proceedings before Judge Carter and do not reach back and affect them: R. v. Antoine (1983), 1983 CanLII 1743 (ON CA), 41 O.R. (2d) 607 at p. 613, 5 C.C.C. (3d) 97 at p. 102, 148 D.L.R. (3d) 149 at p. 155.

However, the time within which an appeal could be taken was extended by the Associate Chief Justice of Ontario and the appeal against the indeterminate sentence pursuant to s. 694 of the Code is properly before us. This sentence, in turn, is based on the finding that the appellant is a dangerous offender and this status of dangerous offender is a continuing status necessary for the validity of the sentence and the consequent detention. I conclude therefore that, on the appeal, the Court has jurisdiction to determine, as a question of law, whether the sentence, based on the continuing status, violates any right protected by the Charter. [Emphasis added.]

[21]. It is unclear from the judgment, however, whether the reference to a "continuing status" in this passage was intended to have the broad meaning and consequences which the appellant argues it has in this case, or whether it was simply used to indicate that the case was still "in the system" (see R. v. Wigman, 1985 CanLII 1 (SCC), [1987] 1 S.C.R. 246) as it had not yet been appealed and therefore could be scrutinized by the Court of Appeal in light of the Charter. The factual setting of the case and the court's comments in other parts of the judgment (see for example p. 351) would support the latter view. I do not, in any event, read this case as authority for the continuing status argument as that argument was framed by the appellant.

[22]. However that may be, I am clearly of the opinion that this argument does not properly reflect the nature, purpose or effect of the sentence imposed under Part XXI of the Code. Nor is it supported by the plain wording of s. 688, which does not on any view support the notion that the sentence is contingent on the offender continuing to meet the requisites of any subsequent amendments to Part XXI. The appellant's argument also misconceives the nature, purpose and effect of the review procedure by the Parole Board mandated by s. 695.1. As I stated in Lyons at pp. 342‑44:

It must be remembered that the offender is being sentenced indeterminately because at the time of sentencing he was found to have a certain propensity. The sentence is imposed "in lieu of any other sentence" that might have been imposed and, like any other such sentence, must be served according to its tenor. The offender is not being sentenced to a term of imprisonment until he is no longer a dangerous offender. Indeed, s. 695.1 provides that the circumstances of the offender be reviewed for the purpose of determining whether parole should be granted and, if so, on what conditions; it does not provide that the label of dangerous offender be removed or altered....

It may be argued that the legislation could be better tailored. For example, it might have been argued that the review process should focus solely on whether the offender continued to possess the characteristics that defined him or her as a proper subject of indeterminate detention. Indeed, one might say that to ask, as the Parole Board does, whether the individual has been reformed or rehabilitated, is to pose a question that ex hypothesi cannot be answered affirmatively, for it was implicit in the designation of the offender as dangerous that he or she was not amenable to rehabilitation by usual means. However, this argument must be rejected for a number of reasons.

To begin with, the criteria actually used serve to emphasize the point made earlier in this judgment that sentencing, even under Part XXI, embodies a complex of penological objectives. I do not think it can be argued, either as a matter of logic or of common sense, that by virtue of a decision to sentence an offender according to considerations based primarily on prevention, other equally valid, subsisting penal goals cease to be relevant. To reiterate, protecting society from the dangerous offender never wholly supplants the other legitimate objectives embodied in a Part XXI sentence.

Seen in this light it would be preposterous to require of dangerous offenders only that they demonstrate to the Parole Board that they have ceased to be "dangerous" (in terms identical to those used in Part XXI), for this would require of them a lesser showing than is required of other convicts. It seems to me that had s. 695.1 provided for a "dangerous offender review", rather than a parole review, but borrowed the identical criteria employed in the Parole Act, it would perhaps be more readily apparent that the review provided for does, indeed, accomplish the requisite tailoring sufficient to sustain the legislative scheme as a whole. Section 10(1)(a)(iii) requires the Board to consider whether the release of the inmate would constitute an "undue risk" to society; if the accused continues to be dangerous then, by definition, this criterion remains unsatisfied. Section 10(1)(a) also requires that the Board be satisfied that the inmate has derived the maximum benefit from incarceration and that the inmate's reform and rehabilitation would be aided by release.

These criteria seem to me to be no less pertinent reflections of society's concerns in releasing dangerous offenders than they are in releasing other offenders. [Emphasis in original.]

[23]. In sum, the appellant has the same protections as those afforded any other person who is convicted of an offence and sentenced to a period of incarceration. He had a right to appeal when the sentence was pronounced and he may apply for parole at prescribed times. But like any other person who is properly convicted and sentenced, he must otherwise serve his sentence according to its tenor. This is not to say that the appellant is left without a remedy. As noted, he has the right to be considered for parole every two years. If he can demonstrate that he satisfies the criteria set out in s. 10(1)(a) of the Parole Act, he will be paroled. Additionally, he may make an application under s. 617 of the Criminal Code for a rehearing or a reference of the matter to a court of appeal. Accordingly, I am of the view that the appellant must fail on the continuing status argument.

[24]. Finally, counsel for the appellant brought to our attention Art. 15 of the United Nations International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966), to which Canada adheres, under which it is provided that if subsequent to the commission of an offence the penalty is reduced the offender is to benefit thereby. Counsel concedes that it has not been adopted as part of the law, but he submits that the Court should use the provision as an aid in interpreting ss. 9 (arbitrary detention) and 12 (cruel and unusual punishment) of the Charter in a way that invalidates at least a penalty of the magnitude of an indeterminate sentence at a time when that penalty could no longer be imposed. But even assuming the present situation can be said to fall within the ambit of the Article in the Covenant (which is by no means clear), it seems to me that Linden J. in Mitchell, supra, has given a complete answer to this argument. It is difficult to see how such an approach could be taken in light of the fact that specific attention was given to this matter in s. 11(i) of the Charter, which limits the rights of an accused in this regard to the benefit of a reduction in sentence made between the time of the commission of the offence and the time of sentencing.

[25]. In light of the conclusions I have arrived at, it becomes unnecessary to consider respondent's argument against Linden J.'s view in Mitchell, supra, that the execution or the carrying out of the sentence, as opposed to its original pronouncement, can be reviewed at any time under the Charter without retrospectively applying the latter's provisions to the original pronouncement (see also R. v. Konechny (1983), 1983 CanLII 282 (BC CA), 10 C.C.C. (3d) 233 (B.C.C.A.)) and I refrain from doing so. Nor is it necessary for me to consider the jurisdictional issues raised by the respondent.

Conclusion

[26]. I would dismiss this appeal. I would also, as is the case in Lyons, answer the first constitutional question in the negative. It is therefore unnecessary to address the second constitutional question.

The following are the reasons delivered by

[27]. Estey J. (dissenting)‑‑The issue in this appeal is whether the continued detention of the appellant violates a right guaranteed to him under the Canadian Charter of Rights and Freedoms to be protected against cruel and unusual punishment (s. 12). This appeal does not raise any issue respecting either the validity or the propriety of his initial conviction or the imposition of the indeterminate sentence. Nor does this appeal call into question the process leading up to conviction and sentence. It is clear therefore that whether the appellant was "dangerous" at the time of sentencing under the provisions of the Code then in force is not the question this Court is now being asked to address.

[28]. In my view there is here a violation of s. 12 of the Charter. For the purposes of this appeal it can be said that the key to s. 12 is that there must be a requisite degree of proportionality between the offence for which the accused has been convicted and the sentence imposed by or under the statute. See R. v. Smith (Edward Dewey), 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045.

[29]. At the time the appellant was found to be a dangerous offender under Part XXI of the Criminal Code it was necessary that the offence for which the offender had been convicted be a "serious personal injury offence". This was defined in s. 687:

687. ...

"serious personal injury offence" means

(a) an indictable offence (other than high treason, treason, first degree murder or second degree murder) involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person.

and for which the offender may be sentenced to imprisonment for ten years or more, or

(b) an offence mentioned in section 144 (rape) or 145 (attempted rape) or an offence or attempt to commit an offence mentioned in section 146 (sexual intercourse with a female under fourteen or between fourteen and sixteen), 149 (indecent assault on a female), 156 (indecent assault on a male) or 157 (gross indecency).

Milne was convicted on five counts of gross indecency.

[30]. The definition of "serious personal injury offence" was amended by S.C. 1980‑81‑82‑83, c. 125, s. 26, and subs. (b) no longer includes the offence of gross indecency. Thus "gross indecency" has ceased to be punishable by an indeterminate sentence. Put another way, gross indecency has ceased to be grounds for a finding of constructive "dangerousness" under Part XXI of the Code. The offence of gross indecency remains an indictable offence which carries a maximum punishment of five years imprisonment (s. 157). It is clear therefore that if Milne were convicted today he would not face the possibility of an indeterminate sentence because he is no longer "dangerous" within the statutory meaning.

[31]. The appellant has been imprisoned in a penitentiary since May 29, 1980. Depending upon the sentence which would have been imposed for the five counts to which the appellant pleaded guilty of gross indecency, the appellant has either served the appropriate sentence or still has some time to serve.

[32]. The question now before the Court is whether in these circumstances the appellant can be kept in prison.

[33]. This Court has held in R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, that the imposition of an indeterminate sentence does not per se violate the Charter. The question in this appeal is quite different: Can there be a violation of the Charter when the very basis for the indeterminate detention has lost its justificatory force when Parliament decided that the offence of gross indecency is not one for which an indeterminate sentence is any longer appropriate? Under his present sentence the appellant will continue to be incarcerated for an indeterminate length of time although the offence for which he has been imprisoned is one in respect of which Parliament has now ordained a finite sentence. Whatever the law may have been prior to the Charter with respect to the treatment of prisoners serving sentences which have been revised by Parliament subsequent to the sentencing, the advent of the Charter has introduced new standards. Prisoners in the position of the appellant now have rights including those flowing from ss. 7, 9 and 12 of the Charter. Section 7 of the Charter protects one's right to "liberty" and to "security of the person" against deprivation "except in accordance with the principles of fundamental justice". It may be open to some debate as to whether there existed any principle of fundamental justice relating to the continued incarceration of a person in the situation of the appellant, under the common law. Section 35(d) of the Interpretation Act, R.S.C. 1970, c. I‑23, should be noted in this connection. It provides:

35. Where an enactment is repealed in whole or in part, the repeal does not

(d) affect any offence committed against or a violation of the provisions of the enactment so repealed, or any penalty, forfeiture or punishment incurred under the enactment so repealed;

If this provision does indeed purport to cover the events here unfolded, this provision must be read along with s. 157 and Part XXI of the Criminal Code in determining whether this statutory ensemble can support a continued imprisonment of the appellant. All of these statutory provisions must, if they bear on the issue at all, give way to the Charter. The decision of this Court in R. v. Wigman, 1985 CanLII 1 (SCC), [1987] 1 S.C.R. 246, does not reach this issue.

[34]. It has, however, long been an element of the criminal law of this country that sentences must be proportionate to the offence committed. Parliament has now found that the indeterminate sentence is no longer appropriate in respect of the violation of s. 157 and presumably so because such imprisonment would be disproportionate, in the view of Parliament, to the offence of gross indecency. It might be said therefore that the appellant's continued imprisonment would in these circumstances be a deprivation of liberty otherwise than in accordance with the principles of fundamental justice.

[35]. It might also be that the continued imprisonment of a person in the circumstances of the appellant is "arbitrary" and hence contrary to s. 9 of the Charter. Once the indefinite holding of a person convicted of gross indecency is no longer authorized in the criminal law, such incarceration becomes capricious or arbitrary and of course if so imposed after the amendment of Part XXI, would be illegal. Accordingly, the continued incarceration of the appellant may be said to have become capricious or arbitrary in the ordinary sense of that term as employed in s. 9. There can hardly be a rational basis or a justifiable basis (subject to what is said below concerning the otherwise appropriate sentence under s. 157) for the continued indefinite retention of the appellant. Without deciding the appropriateness of ss. 7 and 9 under these circumstances, I turn to the third apparently applicable Charter provision.

[36]. In all the circumstances I would conclude that the continued imprisonment of the appellant more clearly offends the right of the appellant under s. 12 of the Charter which provides:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[37]. The prospect of a person serving an indefinite sentence in a penitentiary for an offence no longer attracting such a term of imprisonment under the Criminal Code, must in our ordinary parlance be "cruel and unusual" as this expression has been defined in Smith, supra. The Court is here not dealing with unreasonable or otherwise offending legislation or even legislative policy as invasive of a Charter right. The Court is here only concerned with the characterization in law of the servitude of the appellant after the legislative change. It is not necessary to review the historic background of "cruel and unusual punishment" as this has been undertaken by Lamer J. in Smith, supra. Nor is there any issue of curial deference to Parliament on issues of policy. Parliament has already enunciated its policy with reference to the offence of gross indecency. Unlike the Smith case, supra, the "disproportionateness" of the sentence was determined by Parliament itself when it amended Part XXI. It only remains for the courts to apply the Charter as a matter of law to the present condition of the appellant.

[38]. The interwoven issues arising under the three Charter sections mentioned above render this appeal an unsatisfactory base for the extension of the analysis of these rights beyond the discussion already undertaken in the Smith appeal, supra. I conclude that whatever may be the case in respect to ss. 7 and 9, the continued imprisonment of the appellant under an indeterminate sentence is a violation of the appellant's constitutional right under s. 12 of the Charter.

[39]. What then is the appropriate disposition of this appeal?

[40]. The appropriate sentence for the appellant under s. 157 independent of the provisions of Part XXI has never been assessed. The appellant pleaded guilty to five counts of gross indecency. The maximum sentence under s. 157 is five years. What the appropriate sentence would be, giving due attention to the principles of totality and related offences, and other principles of sentencing which may be appropriate in the circumstances revealed in this record, should be determined by the trial judge, Denroche Prov. Ct. J. He is now functus having validly disposed of the conviction and sentence of the appellant under the law as it then existed.

[41]. The remedies here sought are habeas corpus with certiorari in aid or a remedy under s. 24(1) of the Charter. Habeas corpus with certiorari in aid would (even assuming its availability notwithstanding s. 710 of the Code) be inappropriate should time already served by the appellant be less than the proper sentence, once determined, under s. 157, Part XXI aside. In this situation a court must turn to s. 24(1) of the Charter. In my view, "appropriate and just" remedy in all the unusual circumstances which have arisen in these proceedings, is a direction that this proceeding be remitted to Denroche Prov. Ct. J. for the assessment of the appropriate sentence on the five accounts to which the appellant has pleaded guilty. Should such sentence be determined to exceed the time already served by the appellant, it shall be directed that the appellant be retained in prison until such sentence shall have been served, subject to any rights of the appellant to be released under any applicable legislation. Should the appropriate sentence be for a period less than that which the appellant has already served under the sentence imposed in 1980, it shall be directed that the appellant should be released.

The following are the reasons delivered by

[42]. Wilson J. (dissenting in part)‑‑For the reasons I gave in R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, I would allow the appeal, quash the order made under Part XXI of the Criminal Code and the sentence of indeterminate detention, and remit the matter back to the learned trial judge for the imposition of the appropriate determinate sentence.

[43]. As in the case of Lyons the accused had no knowledge at the time he pleaded guilty to the offences of which he was convicted that the Crown prosecutor intended, and indeed had already received instructions from the Attorney General, to make an application under Part XXI of the Code. The Crown was entitled under the provisions of the Code to function in this fashion prior to the coming into force of the Canadian Charter of Rights and Freedoms, i.e., at the time the Part XXI order was made, but I do not believe, for the reasons I gave in Lyons, that subsequent to the coming into force of s. 7 of the Charter his continued incarceration pursuant to an order made in these circumstances can be justified. Accordingly, I believe that he is entitled to relief under s. 24(1) of the Charter.

Appeal dismissed, Estey J. dissenting and Wilson J. dissenting in part.

Solicitor for the appellant: Ronald R. Price, Kingston.

Solicitor for the respondent: The Deputy Attorney General of Canada, Ottawa.

Solicitor for the intervener the Attorney General for Ontario: The Deputy Attorney General for Ontario, Toronto.

Solicitor for the intervener the Attorney General of British Columbia: The Deputy Attorney General of British Columbia, Victoria.