Steele v. Mountain Institution [1990] 2 S.C.R. 1385: Indeterminate sentence -- Necessary psychiatric treatment not available -- Parole repeatedly denied -- Whether or not Parole Board erred in refusing to release prisoner -- Whether or not flaw in operation of the parole review process -- Whether or not flaw amounting to cruel and unusual punishment

Present: Dickson C.J. and Lamer C.J and La Forest, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Constitutional law -- Charter of Rights -- Cruel and unusual punishment -- Indeterminate sentence -- Necessary psychiatric treatment not available -- Parole repeatedly denied -- Whether or not Parole Board erred in refusing to release prisoner -- Whether or not flaw in operation of the parole review process -- Whether or not flaw amounting to cruel and unusual punishment -- Canadian Charter of Rights and Freedoms, ss. 12, 24(1) --Parole Act, R.S.C., 1985, c. P-2, s. 16(1)(a) -- Criminal Code, R.S.C., 1985, c. C-46, s. 761(2).

Respondent was 55 years old and had been imprisoned almost 37 years. He had pleaded guilty to a charge of attempted rape when he was 18 and was shortly after declared to be a "criminal sexual psychopath" as defined in the Criminal Code. The judge, in imposing an indeterminate sentence, took into account incidents that had occurred on the same day when respondent had been drinking heavily. He emphasized that respondent should receive proper treatment for his condition.

No penitentiary facilities were available to treat respondent's condition and yet he initially responded well to his incarceration. When various attempts at supervised parole were tried, they ended because of some infraction usually stemming from substance abuse or breach of discipline. Through the years, respondent found himself in an ever worsening "Catch-22" situation in that he had little hope for release unless he could receive psychiatric treatment and yet the institutions to which he was condemned to serve his sentence did not have the facilities to provide this treatment. When the facilities for treatment finally became available after some 20 years' imprisonment, admission was twice denied because respondent's condition had deteriorated to the point where he would not benefit from the program. The great majority of the psychiatric reports throughout respondent's incarceration recommended some form of release; those that did not noted that respondent had become "institutionalized" and that he had not been treated for his disorder. The Parole Board repeatedly denied parole because of his risk to society.

Respondent filed a petition seeking an order in the nature of habeas corpus with certiorari and relief pursuant to s. 24(1) of the Charter. The Court concluded that respondent's continuing detention was in violation of s. 12 and ordered his unconditional release. The Court of Appeal confirmed respondent's release but varied the unconditional release to provide that the Crown could apply to the British Columbia Supreme Court for an order that respondent be returned to custody should his conduct after release demonstrate a danger of serious harm justifying a resumption of incarceration under the indeterminate sentence. (The Parole Board and the Correctional Service of Canada had no jurisdiction to impose terms on respondent's release because he had brought his application outside of the parole review process.)

At issue here was whether the Parole Board erred in refusing to release respondent on parole with the result that his continuing imprisonment constituted cruel and unusual punishment. Respondent conceded that the Criminal Code's dangerous offender sentencing provisions were not cruel and unusual punishment contrary to s. 12 of the Charter.

Held: The appeal should be dismissed.

Respondent's lengthy incarceration was cruel and usual punishment contrary to s. 12 of the Charter. The infringement was caused by errors committed by the National Parole Board and not by any structural flaw in the dangerous offender provisions.

The Parole Act required that an indeterminate sentence of a "criminal sexual psychopath" be reviewed by the National Parole Board once every three years. The criteria included consideration of (i) whether the inmate had derived the maximum benefit from imprisonment and (ii) whether the inmate's reform and rehabilitation would be furthered by parole. A third condition, that the inmate's release would not constitute an undue risk to society, was added in 1968. These criteria must be carefully applied in order to fit the indeterminate sentence to the prisoner's circumstances and so ensure that it does not violate s. 12 of the Charter. If it is clear on the face of the record that the Board has misapplied or disregarded these criteria over a period of years with the result that an offender remains incarcerated far beyond the time when he or she should have been properly paroled, then the Board's decision to keep the offender incarcerated may well violate s. 12.

Respondent's imprisonment had long ago reached the point at which he had derived "the maximum benefit from imprisonment". His incarceration was longer than that served by the vast majority of the most cruel and callous murderers and was of doubtful benefit given the unavailability of psychiatric treatment. Specialists expressly stated throughout the course of respondent's incarceration that he had received the maximum benefit from imprisonment and that continued detention would cause him to deteriorate. The second criterion had also long been satisfied. Most reports advised respondent's rehabilitation could only be facilitated by his gradual supervised release into the community. Respondent's behaviour during the last 20 years did not indicate that he remained an undue risk to society. His parole violations resulted from a problem dealing with substance abuse and rigid discipline and not from a tendency to repeatedly engage in violent or sexually deviant behaviour. Breaches of parole conditions should be seriously considered, but as well there should be taken into account all the circumstances and explanations relating to the breach.

The length of time served may be one of the circumstances considered in applying the statutory criteria to an individual's circumstances. It may not of itself justify parole but it may well serve as an indication that the inmate is no longer dangerous. As well, a lengthy incarceration with the concomitant institutionalizing effect upon the inmate may serve to explain and perhaps to some extent excuse certain breaches of discipline.

The National Parole Board erred in its application of the criteria set out in s. 16(1)(a) of the Parole Act. Its decision to deny parole appears to have been based upon relatively minor and apparently explicable breaches of discipline rather than focussing upon the crucial issue of whether granting him parole would constitute an undue risk to society. The parole review process accordingly failed to ensure that respondent's sentence was tailored to fit his circumstances. The inordinate length of his incarceration has long since become grossly disproportionate to the circumstances of this case.

The test for determining whether a sentence is disproportionately long must be stringent and demanding because of the need to avoid trivializing the Charter. Further, there already exists a mechanism whereby appellate courts can review sentences to ensure that they are appropriate.

Since any error that may be committed occurs in the parole review process itself, an application challenging the decision should be made by means of judicial review rather than by means of an application for habeas corpus. The release of a long term inmate should be supervised by those who are experts in this field. However, in this case it would be unfair to require respondent to commence new proceedings by way of judicial review given his age and the length of his incarceration.

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