Cunningham v. Canada, [1993] 2 S.C.R. 143

Robert Cunningham Appellant

v.

Her Majesty The Queen in right of Canada

and the Warden of Kingston Penitentiary Respondents

Indexed as: Cunningham v. Canada

File No.: 22451.

1993: January 29; 1993: April 22.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for ontario

Constitutional law ‑‑ Charter of Rights ‑‑ Liberty of the person ‑‑ Fundamental justice ‑‑ Parole ‑‑ Mandatory supervision ‑‑ Parole Act amended to change conditions for release on mandatory supervision ‑‑ Whether amendment amounts to denial of prisoner's liberty contrary to principles of fundamental justice ‑‑ Canadian Charter of Rights and Freedoms, s. 7 ‑‑ Parole Act, R.S.C., 1985, c. P‑2, s. 21.3(3)(a)(ii).

Prisons ‑‑ Parole ‑‑ Mandatory supervision ‑‑ Parole Act amended to change conditions for release on mandatory supervision ‑‑ Whether amendment amounts to denial of prisoner's liberty contrary to principles of fundamental justice ‑‑ Canadian Charter of Rights and Freedoms, s. 7 ‑‑ Parole Act, R.S.C., 1985, c. P‑2, s. 21.3(3)(a)(ii).

In 1981 the appellant was sentenced to 12 years' imprisonment for manslaughter. Under the Parole Act in force at the time, he was entitled to be released on mandatory supervision after serving approximately two‑thirds of his sentence, provided that he was of good behaviour. In 1986 the Act was amended to allow the Commissioner of Corrections, within six months of the "presumptive release date", to refer a case to the National Parole Board where he has reason to believe, on the basis of information obtained within those six months, that the inmate is likely, prior to the expiration of his sentence, to commit an offence causing death or serious harm. The Parole Board may, if it sees fit, deny release of the inmate. Shortly before his release date, the appellant received a notice that the Commissioner had decided to seek his continued detention. Following a hearing, he was ordered to be detained until his sentence expired, subject to annual reviews. The Ontario Supreme Court refused his application for a writ of habeas corpus. The Court of Appeal upheld the judgment. This appeal is to determine whether the 1986 amendment to the Parole Act amounts to a denial of the appellant's liberty contrary to the principles of fundamental justice under s. 7 of the Canadian Charter of Rights and Freedoms; if so, whether the violation is justifiable under s. 1 of the Charter; and whether the Commissioner acted lawfully in referring the appellant to the Board for a hearing within six months of his release date.

Held: The appeal should be dismissed.

The appellant has suffered deprivation of liberty. While the duration of the restriction of his liberty interest has not been affected, the manner in which he may serve part of that sentence has. The deprivation is sufficiently serious to warrant Charter protection. There is a significant difference between life inside a prison and the greater liberty enjoyed on the outside under mandatory supervision. The 1986 amendment to the Parole Act did not, however, violate the principles of fundamental justice, which are concerned not only with the interest of the person who claims his liberty has been limited, but with the protection of society. From a substantive point of view, the change in the law strikes the right balance between those interests. The prisoner's liberty interest is limited only to the extent that this is shown to be necessary for the protection of the public. Nor does the procedure established under the Act and Regulations violate the principles of fundamental justice. The new procedure provides for a hearing, and the prisoner is entitled to representation throughout. The material on which the matter may be referred for hearing is limited, and there are provisions for new hearings to review the detention in the future. These requirements provide safeguards against arbitrary, capricious orders and ensure that curtailment of release on mandatory supervision occurs only when it is required to protect the public and then only after the interests of the prisoner in obtaining the release have been fully and fairly canvassed.

Cases Cited

Referred to: Dumas v. Leclerc Institute, 1986 CanLII 38 (SCC), [1986] 2 S.C.R. 459; R. v. Gamble, 1988 CanLII 15 (SCC), [1988] 2 S.C.R. 595; Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979); Board of Pardons v. Allen, 482 U.S. 369 (1987); Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972); Re Ross and Warden of Kent Institution (1987), 1987 CanLII 163 (BC CA), 34 C.C.C. (3d) 452; R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713; R. v. Jones, 1986 CanLII 32 (SCC), [1986] 2 S.C.R. 284; Lavigne v. Ontario Public Service Employees Union, 1991 CanLII 68 (SCC), [1991] 2 S.C.R. 211; Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486; Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177; Pearlman v. Manitoba Law Society Judicial Committee, 1991 CanLII 26 (SCC), [1991] 2 S.C.R. 869; Re Evans and The Queen (1986), 1986 CanLII 4679 (ON CA), 30 C.C.C. (3d) 313.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 7.

Parole Act, R.S.C., 1985, c. P‑2, s. 21.3(3) [ad. c. 34 (2nd Supp.), s. 5].

APPEAL from a judgment of the Ontario Court of Appeal, No. 113/89, October 18, 1990, affirming a judgment of Smith J., No. 241/89, August 2, 1989, dismissing the appellant's application for habeas corpus. Appeal dismissed.

R. Peter Napier, for the appellant.

Terrence Joyce, Q.C., and John B. Edmond, for the respondents.

//McLachlin J.//

The judgment of the Court was delivered by

McLachlin J. -- On February 14, 1981, the appellant was sentenced to 12 years' imprisonment for manslaughter following a brutal slaying in Chatham Head, New Brunswick. Under the Parole Act in force at the time of his sentencing, he was entitled to be released on mandatory supervision after serving approximately two-thirds of his sentence, on April 8, 1989, provided that he was of good behaviour.

In 1986 the Parole Act was amended to allow the Commissioner of Corrections, within six months of the "presumptive release date", to refer a case to the National Parole Board where he has reason to believe, on the basis of information obtained within those six months, that the inmate is likely, prior to the expiration of his sentence, to commit an offence causing death or serious harm: Parole Act, R.S.C., 1985, c. P‑2, s. 21.3(3)(a)(ii) (ad. c. 34 (2nd Supp.), s. 5). The Parole Board may, if it sees fit, deny release of the inmate.

The appellant had maintained a good behaviour record in prison. In 1988, his parole officer recommended him for parole and requested a community assessment, since the appellant had indicated he would be returning to his home community, not far from the scene of the crime. The appellant expected to be released on April 8, 1989.

This, however, was not to be. Shortly before his release date, the appellant received a notice that the Commissioner had decided to seek the continued detention of the appellant under the 1986 amendments to the Parole Act. His community, alerted to his release by the community assessment, evinced concern at his early release given the violence of the crime. Further assessments made in the six months preceding the early release date suggested that he remained homicidal when drunk. There was said to be a 50 percent chance of his returning to alcohol, and a 50 percent chance that if drunk he would commit an act of violence. There was also evidence that he was somewhat unstable and had not accepted his responsibility for the crime. While this evidence was brought forward in the six months preceding the anticipated release date, similar observations may be found in the prison records for preceding years.

Following a detention hearing, the appellant was ordered to be detained until his sentence expired on February 13, 1993, subject to annual reviews. The appellant brought an action to the Supreme Court of Ontario for a writ of habeas corpus. The application was refused. The appellant appealed to the Court of Appeal for Ontario, but his appeal was dismissed. The appellant now appeals to this Court.

Three issues arise before us:

1. Does the 1986 amendment to the Parole Act changing the conditions for release on mandatory supervision amount to a denial of the appellant's liberty contrary to the principles of fundamental justice under s. 7 of the Canadian Charter of Rights and Freedoms?

2. If the appellant's s. 7 rights were violated, is the violation justifiable under s. 1 of the Charter?

3. Did the Commissioner act lawfully in accordance with the legislation in referring the appellant to the National Parole Board for a hearing within six months of his release date?

1. Were the Appellant's Rights Under Section 7 of the Charter Violated?

In order for the appellant to succeed in this argument, he must establish two things:

(1) that he was deprived of his liberty by the amendment to the Parole Act which resulted in denial of his release on mandatory supervision; and

(2) that the deprivation of his liberty was contrary to the fundamental interests of justice.

My conclusion is that while the appellant's liberty may be said to have been adversely affected by the changes to the Parole Act, the deprivation was not contrary to the principles of fundamental justice.

The first question is whether the appellant has suffered a deprivation of liberty which attracts the protection of s. 7 of the Charter. This raises two subsidiary questions: (1) Has the appellant shown that he has been deprived of liberty? (2) If so, is the deprivation sufficiently serious to attract Charter protection?

In my view, the appellant has shown that he has been deprived of liberty. The argument that because the appellant was sentenced to 12 years' imprisonment there can be no further impeachment of his liberty interest within the 12-year period runs counter to previous pronouncements, and oversimplifies the concept of liberty. This and other courts have recognized that there are different types of liberty interests in the context of correctional law. In Dumas v. Leclerc Institute, 1986 CanLII 38 (SCC), [1986] 2 S.C.R. 459, at p. 464, Lamer J. (as he then was) identified three different deprivations of liberty: (1) the initial deprivation of liberty; (2) a substantial change in conditions amounting to a further deprivation of liberty; and (3) a continuation of the deprivation of liberty. In R. v. Gamble, 1988 CanLII 15 (SCC), [1988] 2 S.C.R. 595, at p. 645, this Court held by a majority, per Wilson J. (Lamer and L'Heureux-Dubé JJ. concurring) that the liberty interest involved in not continuing the period of parole ineligibility may be protected by s. 7 of the Charter:

. . . the continuation of the 25-year period of parole ineligibility deprives the appellant of an important residual liberty interest which is cognizable under s. 7 and which may be appropriately remedied by way of habeas corpus if found to be unlawful.

American authority is to the same effect. In Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979), at pp. 9-10, the Supreme Court of the United States per Burger C.J. held that an expectation of liberty created by a parole statute created a liberty interest in parole release that is protected by the Due Process Clause of the Fourteenth Amendment. This finding was affirmed in Board of Pardons v. Allen, 482 U.S. 369 (1987). Notwithstanding a vigourous dissent by O'Connor J. (Rehnquist C.J. and Scalia J. concurring) in that case, relying on Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), this remains the law in the United States.

I do not find it useful to ask whether the liberty interest was "vested" or "not vested". The only questions which arise under the Charter are whether a protected liberty interest is limited, and if so, whether that limitation accords with the principles of fundamental justice. To qualify an interest as "vested" or "not vested" does not really advance the debate, except in the sense that a vested interest might be seen as being more important or worthy of protection than one which is not vested. In that event, I think it better to speak directly of the importance of the interest, rather than introducing the property law concept of vesting. At the same time, it is important to recognize that liberty interests may cover a spectrum from the less important to the fundamental. A restriction affecting the form in which a sentence is served, the issue here, may be less serious than would be an ex post facto increase in the sentence.

In the case at bar, the appellant was sentenced to twelve years and was required under his warrant of committal, both before and after the amendment of the Parole Act, to serve that sentence in its entirety. Thus the duration of the restriction of his liberty interest has not been affected. As Lamer J. held for the Court in Dumas, supra, at p. 464: "In the context of parole, the continued detention of an inmate will only become unlawful if he has acquired the status of a parolee." The appellant had never acquired parolee status, and his sentence, contrary to his counsel's submissions, has not been increased.

However the manner in which he may serve a part of that sentence, the second liberty interest identified by Lamer J. in Dumas, supra, has been affected. One has "more" liberty, or a better quality of liberty, when one is serving time on mandatory supervision than when one is serving time in prison. The appellant had a high expectation, contingent on his good behaviour, that he would be released on mandatory supervision on April 8, 1989, had the Parole Act not been amended; indeed, he would automatically have been released on mandatory supervision given his good behaviour. The effect of the 1986 amendment of the Parole Act was to reduce that expectation of liberty, in the sense that it curtailed the probability of his release on mandatory supervision. This resulted from the new power of the Commissioner to refer exceptional cases to the Parole Board based on events and information in the six months immediately preceding the presumptive release date. As the British Columbia Court of Appeal put it in Re Ross and Warden of Kent Institution (1987), 1987 CanLII 163 (BC CA), 34 C.C.C. (3d) 452, at p. 454: "The effect of the 1986 amendments ... is to alter the right of an inmate to serve a portion of his sentence on mandatory supervision by qualifying that right." (Emphasis added.)

I conclude that the appellant has suffered deprivation of liberty. The next question is whether the deprivation is sufficiently serious to warrant Charter protection. The Charter does not protect against insignificant or "trivial" limitations of rights: R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713, at p. 759 (per Dickson C.J.); R. v. Jones, 1986 CanLII 32 (SCC), [1986] 2 S.C.R. 284, at p. 314; Lavigne v. Ontario Public Service Employees Union, 1991 CanLII 68 (SCC), [1991] 2 S.C.R. 211, at p. 259; Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, at pp. 168‑69. It follows that qualification of a prisoner's expectation of liberty does not necessarily bring the matter within the purview of s. 7 of the Charter. The qualification must be significant enough to warrant constitutional protection. To require that all changes to the manner in which a sentence is served be in accordance with the principles of fundamental justice would trivialize the protections under the Charter. To quote Lamer J. in Dumas, supra, at p. 464, there must be a "substantial change in conditions amounting to a further deprivation of liberty".

The change in the manner in which the sentence was served in this case meets this test. There is a significant difference between life inside a prison versus the greater liberty enjoyed on the outside under mandatory supervision. Such a change was recognized as worthy of s. 7 protection in Gamble, supra.

Having concluded that the appellant has been deprived of a liberty interest protected by s. 7 of the Charter, we must determine whether this is contrary to the principles of fundamental justice under s. 7 of the Charter. In my view, while the amendment of the Parole Act to eliminate automatic release on mandatory supervision restricted the appellant's liberty interest, it did not violate the principles of fundamental justice. The principles of fundamental justice are concerned not only with the interest of the person who claims his liberty has been limited, but with the protection of society. Fundamental justice requires that a fair balance be struck between these interests, both substantively and procedurally (see Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at pp. 502-3, per Lamer J.; Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177, at p. 212, per Wilson J.; Pearlman v. Manitoba Law Society Judicial Committee, 1991 CanLII 26 (SCC), [1991] 2 S.C.R. 869, at p. 882, per Iacobucci J.). In my view the balance struck in this case conforms to this requirement.

The first question is whether, from a substantive point of view, the change in the law strikes the right balance between the accused's interests and the interests of society. The interest of society in being protected against the violence that may be perpetrated as a consequence of the early release of inmates whose sentence has not been fully served needs no elaboration. On the other side of the balance lies the prisoner's interest in an early conditional release.

The balance is struck by qualifying the prisoner's expectation regarding the form in which the sentence would be served. The expectation of mandatory release is modified by the amendment permitting a discretion to prevent early release where society's interests are endangered. A change in the form in which a sentence is served, whether it be favourable or unfavourable to the prisoner, is not, in itself, contrary to any principle of fundamental justice. Indeed, our system of justice has always permitted correctional authorities to make appropriate changes in how a sentence is served, whether the changes relate to place, conditions, training facilities, or treatment. Many changes in the conditions under which sentences are served occur on an administrative basis in response to the prisoner's immediate needs or behaviour. Other changes are more general. From time to time, for example, new approaches in correctional law are introduced by legislation or regulation. These initiatives change the manner in which some of the prisoners in the system serve their sentences.

The next question is whether the nature of this particular change in the rules as to the form in which the sentence would be served violates the Charter. In my view, it does not. The change is directly related to the public interest in protecting society from persons who may commit serious harm if released on mandatory supervision. Only if the Commissioner is satisfied on the facts before him that this may be the case can he refer the matter to the Parole Board for a hearing. And only if the Board is satisfied that there is a significant danger of recidivism can it order the prisoner's continued incarceration. Thus the prisoner's liberty interest is limited only to the extent that this is shown to be necessary for the protection of the public. It is difficult to dispute that it is just to afford a limited discretion for the review of parole applicants who may commit an offence causing serious harm or death. Substantively, the balance is fairly struck.

Nor does the procedure established under the Act and Regulations violate the principles of fundamental justice. The change was made by law. The new procedure provides for a hearing to consider whether the expectation of release on mandatory supervision was warranted. The prisoner is entitled to representation throughout. The material on which the matter may be referred for hearing is limited. Under s. 21.3(3) of the Parole Act, the reference together with the relevant information is to be submitted no later than six months before the presumptive release date. The only exception to this general rule is provided where either the behaviour of the inmate or information obtained within the six months warrants a review. There are also provisions for new hearings to review the detention in the future. These requirements provide safeguards against arbitrary, capricious orders and ensure that curtailment of release on mandatory supervision occurs only when it is required to protect the public and then only after the interests of the prisoner in obtaining the release have been fully and fairly canvassed.

Appellate courts have come to the same conclusion in previous decisions that considered the 1986 amendments to the Parole Act and Parole Regulations. In reference to the numerous sections in the Act and Regulations outlining procedural safeguards, Robins J.A. in Re Evans and The Queen (1986), 1986 CanLII 4679 (ON CA), 30 C.C.C. (3d) 313 (Ont. C.A.), at p. 316, states:

These safeguards ensure a fair procedure and serve to protect those inmates who would otherwise be eligible for release on mandatory supervision against any arbitrary determination of their rights.

Hinkson J.A. makes a similar finding in Re Ross and Warden of Kent Institution, supra, at p. 460.

I conclude that the appellant has not established that the changes to the Parole Act deprived him of his liberty contrary to the principles of fundamental justice. No violation of s. 7 having been made out, it is unnecessary to consider the arguments under s. 1 of the Charter.

2. Did the Commissioner Act Lawfully?

I turn to the final issue: whether the Commissioner's referral of the appellant's case to the Parole Board was illegal and contrary to the law. Under s. 21.3(3), the Commissioner may refer an inmate's case to the Board no later than six months preceding his "presumptive release" on mandatory supervision. An exception to this general rule is permitted where, due to the inmate's behaviour or information received within the six-month period, the Commissioner has reason to believe that the inmate is likely, prior to the expiration of his sentence, to commit an offence causing death or serious harm. The Commissioner must have formed the belief on the basis of "information obtained within those six months" (s. 21.3(3)(a)(ii)).

The Commissioner referred the appellant's case as a "Commissioner's Referral based upon new information", offering the opinion that "without treatment intervention there are reasonable grounds to believe that this inmate is likely to commit an offence causing death or serious harm prior to warrant expiry date". The Commissioner's memorandum included two psychiatric reports, a letter from the Crown prosecutor and an updated RCMP report. All this information was received within the six months before the presumptive release date. It is argued that the information relied on by the Commissioner, while nominally arising within the six-month period before the appellant's prospective date for release on mandatory supervision, in fact is no more than an update of information which was on the appellant's file before that period. It is true that references to the appellant's volatility, drinking problems, lack of acceptance of guilt and tendency to violence when drunk may be found in the files prior to the six-month period. But that should not, in my view, prevent the Commissioner from relying on new and revised reports to the same effect when they come to his attention within the six-month period before the prospective release date. Indeed, it would be an unusual case where information coming forward in the six-month pre-release period did not find its echoes and antecedents in the previous prison record, given the long-standing nature of the problems typically involved in these cases.

I would agree with the motions judge that an objective test is appropriate. The issue put before this Court was whether the information could be said to be "new" in the substantive sense, rather than merely the temporal sense. The motions judge, having considered all the material, concluded on an objective test that it had not been established that the Commissioner had acted illegally in the sense of not forming his opinion on the basis of information obtained within six months. My review of the record does not persuade me that he was wrong.

In my view, the Commissioner did not violate the Act by referring the appellant's case to the National Parole Board for reconsideration of his eligibility for release on mandatory supervision.

I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: O'Connor, Bailey & Napier, Kingston.

Solicitor for the respondents: John C. Tait, Ottawa.