Steele v. Mountain Institution, [1990] 2 SCR 1385

Steele v. Mountain Institution , [1990] 2 S.C.R. 1385

 

Warden of Mountain Institution                                                                                      Appellant

 

v.

 

Theodore Steele             Respondent

 

indexed as:  steele v. mountain institution

 

File No.:  21878.

 

1990:  May 25; 1990:  November 8.

 

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.

 

Cases Cited

 

    Referred to:  Mitchell v. Attorney General of Ontario (1983), 35 C.R. (3d) 225; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Milne, [1987] 2 S.C.R. 512; R. v. Smith, [1987] 1 S.C.R. 1045.

 

Statutes and Regulations Cited

 

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

 

Criminal Code , R.S.C. 1927, c. 36, s. 1054A.

 

Criminal Code, R.S.C. 1970, c. C‑34, s. 687.

 

Criminal Code , R.S.C., 1985, c. C‑46 , s. 761(2) .

 

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.

 

Parole Act, R.S.C., 1985, c. P‑2, s. 16(1)(a).

 

Parole Act, S.C. 1958, c. 38, s. 8(a).

 

Authors Cited

 

Canada.  Report of the Inquiry into Habitual Criminals in Canada, vol. 1.  (By Stuart M. Leggett). 1984.

 

    APPEAL from a judgment of the British Columbia Court of Appeal (1990), 45 B.C.L.R. (2d) 273, 54 C.C.C. (3d) 334, 76 C.R. (3d) 307, dismissing an appeal from a decision of Paris J. (1989), 72 C.R. (3d) 58, ordering the respondent's unconditional release.  Appeal dismissed.

 

    I. G. Whitehall, Q.C., and M. Taylor, for the appellant.

 

    Michael Jackson, for the respondent.

 

//Cory J.//

 

    The judgment of the Court was delivered by

 

    CORY J. -- Theodore Steele, the respondent, has attained the age of 55.  For almost 37 of those years he has been detained in an institution.  In my view the issue raised on this appeal is whether the Parole Board erred in refusing to release him on parole with the result that his continuing imprisonment constitutes cruel and unusual punishment.

 

    The period of incarceration has been long indeed.  When the respondent entered prison, Mr. St. Laurent was Prime Minister and General Eisenhower was President.  He remained incarcerated through the Cuban missile crisis, the assassination of President Kennedy, the Vietnam War, the F.L.Q. crisis, the Watergate scandal, the Iran/Iraq War, the easing of tension between the Soviet Union and the United States, and the enactment of the Canadian Charter of Rights and Freedoms .  An era has passed.

 

    The respondent acknowledges that this Court has determined that the dangerous offender sentencing provisions found currently in Part XXIV of the Criminal Code , R.S.C., 1985, c. C-46 , do not infringe s. 12  of the Charter .  Rather, throughout these proceedings the respondent has challenged the way in which the legislation has been applied to him.  It is necessary for the purposes of this appeal to undertake a detailed review of the factual background.

 

Factual Background

 

1.  The Original Conviction, 1953

 

    On October 22, 1953, Steele, then 18 years of age, entered a plea of guilty to a charge of attempted rape.  On November 12 of the same year, he was declared a "criminal sexual psychopath" pursuant to the provisions of s. 1054A of the Criminal Code , R.S.C. 1927, c. 36 (added by S.C. 1948, c. 39, s. 43).  He was sentenced to five years in prison for the attempted rape and to an indeterminate period of detention thereafter.  Davey J., as he then was, took into account a prior conviction of contributing to juvenile delinquency as well as two other incidents admitted by Steele involving misconduct of a sexual nature with children.  These incidents were described by Steele in his affidavit in this manner:

 

    The facts of the attempted rape were that I attempted to have sexual intercourse with an eleven year old girl three times and having failed I ejaculated and made the girl lick my penis.  No penetration took place.  The facts of the contributing to juvenile delinquency offence were that I took down the panties of a six year old girl and laid on top of her.  The facts of the two incidents that were admitted were (1) on June 26, 1953, that I exposed myself to a ten year old girl and attempted to force her to touch my penis.  When she cried I released her. (2) That on September 8, I exposed myself to two girls aged five and a half and four.

 

It should be noted that the offence of contributing to juvenile delinquency, one of the admitted incidents and the attempted rape all took place on the same day, a day during which the petitioner was drinking heavily.

 

    At the time of sentencing Steele was an adolescent, small in stature and with limited intelligence.  He left school while in grade eight and had difficulty adjusting socially.  He was described as "physically immature" with "the personality development of a nine year old".  The pre-sentence report indicated that "his anxiety to solve sex has led him to immature attempts to effect a relationship of some sort with little girls toward whom he is presumably able to feel equal."

 

    Dr. Joseph Thomas, a psychiatrist called by the Crown on the sentencing, stated that Steele's sexual deviance stemmed from his very low intelligence and did not represent the classic behaviour of a sexual psychopath.  He expressed the opinion that Steele would be able to control himself if his level of intelligence were higher.  Dr. Ernest Campbell, another psychiatrist called by the Crown, gave his opinion that Steele came within the definition of a criminal sexual psychopath set out in s. 1054A. Asked by the trial judge what treatment Steele could expect to receive in a penitentiary, Dr. Campbell replied that "treatment is sadly lacking".

 

    In his reasons for sentence, Davey J. emphasized his desire that Steele receive proper treatment for his sexually deviant behaviour.  He stated:

 

It was therefore with considerable alarm that I listened to Dr. Campbell's evidence as to lack of suitable treatment and training in the penitentiary for this young man.  I recommend in the strongest way that the responsible authorities provide proper psychiatric treatment for this young man, and treatment by trained psychologists, if that is necessary, to give him every opportunity of responding to it and taking his place in society. [Emphasis added.]

 

2.  The First Seven Years of Detention, 1953-1960

 

    During the first seven years he served in the B.C. Penitentiary, Steele was close to being a model inmate.  Sadly, as Dr. Campbell had warned, medical treatment was sorely lacking.  It consisted of two years of group therapy sessions with the prison psychiatrist, Dr. D. C. MacDonald.  Nonetheless, Steele appeared to make rapid progress.

 

    By 1956, both Dr. MacDonald and the warden of the B.C. Penitentiary recommended that Steele "be given a high priority when considering the sexual psychopaths here for release".  By 1958, that recommendation had the support of the Regional Representative of the Department of Justice Remission Service.  In 1960, Dr. MacDonald's successor, Dr. P. Middleton, once again recommended that Steele be released, noting that "his continued incarceration here during at least the past three years has been against psychiatric recommendations".  Dr. Middleton also commented on the lack of medical treatment available for sexual offenders.  He said:

 

If Penitentiaries were correctional institutions well supplied with counsellors and psychiatrists one might hope that prolonged incarceration would lead to better adaptation and understanding.  In fact, however, the services available are quite minimal and it is quite doubtful whether they even offset the pernicious effects of association with the distorted values and perverted outlooks of so many of the other inmates.

 

    In December 1960, Steele was granted parole with a period of gradual release.

 

3.  Parole, December 1960 to July 1962

 

    Steele initially adjusted well to his release.  He quickly found employment as an autobody painter, the trade in which his father had worked and that Steele himself had learned in the penitentiary.  He lived at home with his parents and regularly visited his psychiatrist, Dr. MacDonald.  His only problems seemed to relate to an excessive use of alcohol.  In June 1961 he was convicted of impaired driving.  His parole was modified to require that he abstain from the use of alcohol.  At about this time Steele met Wendy Whitehouse.  They became engaged on Christmas Day 1961 and planned to marry in August of the next year.

 

    This promising period of parole came to an abrupt end as a result of the events that occurred on July 23, 1962.  They were described by a National Parole Board representative in this way:

 

The information from the police indicates that Steele accosted a 19-year-old girl at 2 a.m. on July 23, 1962 on the pretense of asking directions to a certain street.  She refused to talk to him and he then backed his car on the boulevard to block her way, got out of the car and when she tried to run away he twisted her arm into a hammer-lock and attempted to force her into his car.  At that moment another motorist came by, stopped, but before he could do anything Steele got away in his car . . .

 

. . . Steele was planning to get married sometime this month and I was beginning to wonder if this impending marriage was stirring up emotional problems with him, which he was unable to control.

 

Unfortunately Steele turned up at Dr. McDonald's office at 6:00 p.m. on July 23, 1962 without proper referral from his family physician.  I had explained this arrangement to Mr. Hansen but apparently Steele did not follow through with instructions. . . . He was somewhat hostile when he left the office.  Eight hours later he is alleged to have committed the present offences.

 

    Steele was convicted of common assault and his parole was revoked.

 

4.  Imprisonment, 1962-1970

 

    Steele spent six months at the Oakalla Prison Farm and then returned again to the B.C. Penitentiary.  There he remained from December 1962 to July of 1967.  For several years he maintained close ties with his fiancée and their son, Ronald, who was born in January 1963.  Not unexpectedly, this close relationship waned after several years.  Yet Steele has maintained some contact with his son up to the present time.

 

    In 1963, ten years after his conviction, the facilities for medical treatment at the institution remained inadequate.  The problem is illustrated by the reports completed by correctional and parole officers in 1963.  One prepared by Classification Officer T. Taylor reads in part:

 

One can only hope that in the near future a comprehensive forensic clinic will be established in the Lower Mainland area where individuals such as Steele may have a chance of recovery through the appropriate psychiatric facilities.  In the meantime no such clinic is available and parole is not recommended for Steele.

 

Field Representative B. K. Stevenson stated:

 

In order to protect the community it is recommended that this inmate remain in custody for a further period even though his disorder is virtually untreatable with the present resources at hand.

 

    By 1964 there were many who were recommending that Steele would be better off under supervision in the community than in the penitentiary.  Dr. MacDonald stated:

 

It is my candid opinion that we are not going to be able to rehabilitate this man by keeping him indefinitely in prison.  It is also my opinion that if he had been able to avail himself of the services of a forensic clinic after his release in 1960, and had been closely followed up in psychotherapy, he might well have avoided returning to the B.C. Penitentiary.

 

    Deputy Warden W. H. Collins took the same position.  He recommended that Steele be released on parole.  It was his opinion that the institution was not going to rehabilitate Steele and that he needed guidance but not the type that could be given in an institution.

 

    Field Representative P. D. Redecopp also recommended that Steele "be given another chance" and warned that "[i]f we don't try him now, a few years from now the prognosis will probably be poorer".  Dr. A. M. Marcus, a psychiatrist from the University of British Columbia, gave a guardedly optimistic assessment of Steele's personality and stated that "[h]e has the opportunity to do well, should he leave the institution".

 

    Despite these favourable recommendations, when Steele's case was reviewed by a panel of experts on March 8, 1965 it was concluded that:

 

In spite of the somewhat improved report submitted by Dr. Marcus on August 24, 1964, it would appear that unless complete and total control is exercised over this man when he returns to the community, additional offences will be committed.  It is impossible to guarantee that there will be no alcohol in his environment and no after-care agency is capable of providing the total control that seems to be required.  Perhaps when a forensic clinic is established in this area and competent psychiatric follow-up available through it then a second opportunity could be given to this dangerous sexual offender.  At the present time, however, we would not be prepared to support parole and can only recommend that no action be taken with respect to his present review.

 

    From 1965 to 1968 Steele seemed to lose hope and his situation deteriorated.  Although his eligibility for parole was reviewed on an annual basis it was deferred each year.  When he was interviewed by parole officials, Steele conceded that he was "just putting in time" and when asked in 1966 if he would apply for parole, he stated "what's the use".  In 1968 he was transferred to Agassiz Correctional Work Camp and there he seemed to improve.  However, B. B. Smyth, the Classification Officer at the camp, observed that Steele "has become dependent upon the institution in respect to leading an orderly and productive life". Yet again the lack of medical treatment seemed to undermine Steele's chances of being released.  Parole Officer Fred Jones examined Steele in 1968 and reported:

 

As far as I am concerned I see no indication in the institution report that there has been any kind of treatment program embarked on by the staff that would make some effort to bring about a change or better still to find out just what the difficulty is in Steele and try to do something about it. . . .  I think it is unrealistic for the Parole Board to consider a dangerous sex offender for parole until such a program has been embarked on or until such time as he is too old, feeble, and infirmed to present a threat. . . .

 

His evaluation was just as pessimistic in 1969.

 

    Others again took the position that Steele's prospects would be better in the community than in jail.  Dr. J. C. Bryce, who interviewed Steele at Dr. MacDonald's request, concluded:

 

On the basis of the present interview I feel that this man is as well as we can hope for, that continued incarceration is definitely likely to be harmful and that he should be paroled forthwith.

 

Classification Officer Smyth reported that Steele was in a "rut . . . that is getting deeper year by year".  He recommended parole on the following basis:

 

Provided the psychiatric reports are favourable and a constructive post-release planning is undertaken . . . parole is recommended as the next step in his rehabilitation.

 

Despite these recommendations, parole was still deferred in 1969.

 

    Steele himself appreciated that he was in a "Catch-22" situation.  In 1970 he wrote to the Parole Board complaining that he had little hope for release unless he could receive psychiatric treatment.  He asked if the Board would consider parole to an institution where he could undertake a definite program of treatment.  He expressed his willingness to cooperate and undergo treatment in this way:

 

Would the Board consider paroling me to an institution where a definite program of treatment can be undertaken?  I am aware that there are no federal institutions with such a program.  Riverview Mental Hospital in New Westminster has such a program.  What about the new research centre at the University of B.C.?  Is there a clinic in Penatang, Ontario, that offers a treatment program for sex offenders?

 

My parents would be willing to assume the expense of this treatment if necessary.

 

    Subsequent to the receipt of this letter the Parole Board decided to convene a psychiatric panel to examine Steele and report on his condition prior to his parole review in 1970.  Further, the penitentiary allowed Steele to visit his family and friends in Vancouver on three-day  supervised passes over a six-month period.

 

    In 1970, Steele was examined by psychiatrists Dr. E. Lipinski and Dr. G. Ross Bulmer and by a psychologist Lee Pulos.  All three recommended that Steele be released although they emphasized that he should have extensive supervision and treatment.  Dr. Lipinski thought that Steele would do well in a half-way house.  Dr. Bulmer found "the degree of probability of his violating [the sexual offence provisions of the Criminal Code ] to be less than average".  On the basis of these and other recommendations, the National Parole Board granted Steele "Parole in Principle".

 

5.  The Stay in a Half-way House, December 1970

 

    On December 2, 1970 Steele was transferred to the Georgia Release Centre, a half-way house in Vancouver.  Two weeks later Steele went out drinking with another resident.  He apparently made "passes" at some women who were drinking at a skid row hotel.  When Steele and the other resident returned to the Centre, Steele asked to go out again for "groceries".  When the Centre's staff refused permission he left on his own and did not return until 4:30 a.m.  He was then transferred back to the B.C. Penitentiary.  The reason for the transfer was expressed in this way by T. Watson, the Centre's Superintendent:

 

The prime reason for transfer was that he would not admit to the offence and that I am convinced that he could not have made it through our program for four months (this does not mean he would commit a sexual offence) and the transfer might be of a therapeutic nature.  [Emphasis added.]

 

    It was apparent that Steele had been frustrated by the rules of the half-way house, which were more restrictive than those governing the three-day passes he had received earlier in 1970.  Mr. Watson of the half-way house stated that he was prepared to have Steele back provided his program was "worked through" carefully.  Nevertheless the National Parole Board cancelled the parole with a further review set for one year later.

 

6.  Reincarceration, 1970 to 1980

 

    Between 1970 and 1972 Steele moved back and forth between the B.C. Penitentiary and the Agassiz Work Camp.  He was granted and completed without incident several three-day passes during this period. A number of reports urged the National Parole Board to again release Steele to a half-way house.  Still, the Board continued to defer parole.

 

    Prior to the 1972 review, Mr. P. DesLauriers, a psychologist who reviewed Steele, recommended:

 

It would seem that therapy would be better served if the important matters in this case were remembered, and forgotten the short-lived incident that momentarily interrupted his march forward.  The important matters at hand would be his participation in a positive community project that he has earned the right to become involved in.

 

This view was echoed by the Field Parole Officer William F. Foster:

 

Although subject did fail on his last period at the Community Release Center I think it might be noted that his failure was more based on adjustment problems than indications of a tendency to repeat his previous type of offence.  For this reason I would suggest that consideration might be given to his transfer back to the Community Release Center in Vancouver.  [Emphasis added.]

 

    Classification Officer B. B. Smyth recommended parole in principle with gradual release.  At the request of the National Parole Board, Dr. Lipinski and Mr. Pulos once again examined Steele.  They both recommended that he be released under supervision.  Despite this, the Board decided to defer parole for another year.

 

    In July 1973, the Commissioner of Penitentiaries called for a review of all dangerous offenders who had been released on temporary passes.  For the purposes of the Commissioner's inquiry, Steele was assessed by W. R. Kelly, a psychologist.  He expressed the view that although Steele might encounter difficulties accepting parole regulations, he showed "no indications of abnormal sexual values or attitudes" and "is very unlikely to be a violent offender".

 

    Later in 1973, a programme for the treatment of sexual offenders was finally established at the British Columbia Regional Medical Centre, renamed the Regional Psychiatric Centre in the mid-1970s.  Early in 1974, Steele was transferred to the Centre in order that an evaluation could be carried out to determine whether he should be included in the Sexual Offenders' Programme.  He was interviewed by psychiatrists Dr. Milton H. Miller and Dr. A. Saad and by psychologists F. M. Van Fleet and K. S. Oey.  They all concluded that Steele by this time was not willing or ready to benefit from the Sexual Offenders' Programme.  However, they were unanimous in their opinion that Steele should be released on a closely supervised parole.  They stated that Steele would only deteriorate further if he remained in prison.  The situation was summarized in the report of Mr. Van Fleet, the Centre's chief psychologist, in the following terms:

 

The sad fact is that this individual, who is barely able to cope with the normal demands of society, has already spent nearly twenty-one years of his life behind bars as a D.S.O. for two offences, both of which involved female victims, and both of which were bungled.  Perhaps, if years ago, he had been given some guidance in making normal social-sexual contacts, his behaviour might have been different.  Now, I believe, it is probably too late in his sentence for him to benefit much from our sexual-offenders programs.  The fellow remains inadequate.

 

Whether or not he remains a threat to society I cannot predict. Certainly I can foresee circumstances in which he might still have problems, but in spite of this and the lengthy sentence he has served, I would argue for his release on mandatory supervision.

 

    In 1973, Steele brought an application for judicial review under s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10.  In the course of the preparation for that application he was examined by Dr. Robert Halliday, a psychiatrist.  It was the opinion of Dr. Halliday that Steele was not, at that time, a criminal psychopath and that he was not a dangerous sexual offender within the meaning of s. 687 of the Criminal Code, R.S.C. 1970, c. C-34.  He further expressed the view that Steele was not in any way likely to cause injury or pain to any person "through failure in the future to control his sexual impulses".

 

    The application was dismissed in 1975.  The reasons do not form part of the material on this appeal.  However, the evidence suggests that the Board was concerned by the application and believed there might be further court proceedings.  At Steele's 1976 parole review the Board invited him to submit a proposal for a two-to-five year gradual release which was to begin with a stay at a minimum security institution.  Unfortunately, this plan became unworkable as a result of new prison regulations that excluded dangerous sexual offenders from minimum security institutions.

 

    In June 1976, in a fit of depression, Steele escaped from Mountain Institution but returned the same evening.  At that time he was diagnosed as a "serious suicidal risk".

 

    In 1977, Steele was transferred for a second assessment at the Regional Psychiatric Centre at the request of the Parole Board.  Although he was admitted for a 90-day assessment, he arranged for his own discharge after 34 days.  In her discharge report, psychiatrist Florence L. Nichols  did not make any recommendation as to whether or not Steele should be released, although she emphasized that any release would have to be carefully supervised.  In 1977, on Steele's application for parole, the Board denied the application.  They gave the following reasons:

 

This decision was made because the Board feels you are still too much of a risk for release.  They indicated concern regarding drinking alcohol, marijuana use, your denial of any problems, past effort and lack of insight into your behaviour.

 

    In 1978, the Parole Board recommended that Steele be treated under the Sexual Offenders' Programme.  Once again he was referred to the Regional Psychiatric Centre and found unsuitable for the programme.  The reasons for his unsuitability are set out in the report of Elsie Candlish, R.N.  She stated:

 

It is of the writer's opinion that this man is unsuitable for the Sexual Offenders program; this being based on the following reasons:

 

                            1.  His age

 

                            2.  His complete denial of problems

 

                            3.  His total lack of insight

 

                            4.  His severe impairment of judgment

 

                            5.  His pre-occupation with getting on the street

 

    In 1979, Steele was evaluated by two eminent psychiatrists, Dr. Derek Eaves and Dr. Jim Tyhurst.  Dr. Eaves' assessment was very pessimistic.  He found Steele to be an "immature, egocentric, ebullient and insensitive person" who "has shown little capacity for relating to women in an appropriate manner and still regards them as sexual objects".  He could not make any positive recommendations and suggested that Steele's rehabilitation might prove impossible.

 

    Dr. Tyhurst, on the other hand, recommended his parole "unequivocally".  Although he found Steele to be socially naive, of limited intelligence, and to have an incipient although not severe problem with alcohol, he concluded that "[w]ith supervision and with a planned and staged programme of rehabilitation -- including continuous attention to alcohol -- I would not anticipate that he would be a hazard to himself or others".  In that same year the Parole Board once again denied parole but allowed Steele to begin a programme of escorted passes for one day each month to visit his parents and his 16-year-old son, Ronald.

 

7.  Temporary Passes, 1980-1987

 

    From 1980 through 1986, Steele was allowed to visit relatives and friends in Vancouver on escorted temporary passes.  The assessments of Steele's adjustment during these escorted passes were positive.  Classification Officer Vasha Stary, for example, reported:

 

Today at 45 Ted Steele is sober, careful, somewhat naive psychologically but matured emotionally.  I do not believe he poses a physical danger to anyone.

 

    Despite this report, Dr. Eaves, when he interviewed Steele a second time, reported that there had been "an apparent but not a real change in his personality".  He was of the opinion that Steele remained a "poor parole risk over the long term, although his energy and enthusiasm might promote initial success".  On the other hand, Dr. W. J. Ross, a psychologist who had assessed Steele on a number of occasions, recommended that he be released to a half-way house on gradual parole.  When the Board denied Steele's application for unescorted temporary passes in 1981, Dr. Ross wrote:

 

Mr. Steele is most unlikely to make any significant improvement while in prison for the following reasons:  he has been in prison many years and cannot adequately incorporate life outside of prison and its problems into his make up without experiencing it ....

 

Ted's ability to change significantly really hinges on his becoming considerably older, senile or physically incapacitated and then being released to a nursing home to expire or remaining in prison to die here.  The only other choice seems to realistically be releasing him now at what is relatively a high point in his life with his family, his hopes, his fears, etc. into a closely monitored living situation (as was discussed in earlier reports) where he would have the opportunities to learn by incorporation into his being the rules that one must live by with others and learning to appreciate the needs, feelings and welfare of everyone about him.

 

                                                                        . . .

 

Is the board prepared to tell him we think you should spend the rest of your life in prison?

 

    During the period from 1980 to 1986, Steele manifested an increasing frustration with the parole procedure.  In 1982, when he was in Vancouver on a shopping trip with an escort, he left without authorization, went to see his parents and returned to Mountain Institution on his own initiative later the same day.  From 1983 to 1985, he refused to appear before the National Parole Board for its annual reviews.  At this time he seems to have put his faith in a habeas corpus application.  Apparently his lawyer anticipated that there would be a judicial review for sexual offenders sentenced under the pre-1977 provisions for indeterminate detention.  When the Solicitor General announced that there would be no such judicial review, Steele appeared before the Parole Board once again in 1986 and 1987.

 

 

    In 1984 and 1985, Steele was interviewed by psychiatrists Dr. Joseph A. Noone and Dr. Tyhurst.  Dr. Noone noted that Steele had been assessed by a "Who's Who of Western Canadian forensic experts" but that he "has been essentially untreated for any of his pathology and, in addition, has become institutionalized in prison ways to a degree".  Dr. Noone wrote:

 

In this case, society is presently at the stage of reaping the seeds sown some thirty years ago when an adolescent sex offender with a disordered personality received an indeterminate sentence with release being contingent on his recovery from pathology for which no treatment has taken place.

 

    In Dr. Noone's view, Steele was still a sexual psychopath but he was unable to predict whether Steele was a dangerous individual.  It was his recommendation that Steele be treated in a specialized sexual offenders programme.

 

    Dr. Tyhurst, once again, recommended unequivocally that Steele be paroled.

 

    In January 1986, the Parole Board permitted Steele to undertake a programme of unescorted temporary passes of eight hours twice each month.  Steele adapted well to this programme.  He visited Dr. Tyhurst once each month.  In December, he was granted longer unescorted temporary passes which permitted him to come to the Robson Centre, a half-way house in Vancouver, for 48 hours each month.  Steele successfully completed five of these passes.  However, on May 6, this programme was suspended when Steele left the half-way house without permission.  He apparently had been drinking with a friend, Donna Moorman.  When he returned to the Robson Centre he realized that the staff might smell alcohol on his breath and he left the Centre.  He spent the night with friends, visited Donna Moorman once again in the morning and then voluntarily turned himself in.

 

    Despite this setback, Steele's outlook at this time was optimistic.  He was excited about an anticipated legal action to be brought on his behalf.  He had, as well, established a good relationship with a psychologist, Dr. Peggy Koopman, who was extremely supportive of his bid for release.  Shortly before his scheduled annual review in 1988, Steele was re-assessed by Dr. Noone at the request of his parole officer.  Again, Dr. Noone submitted a negative report and suggested that there should be a moratorium on parole applications until the result of Steele's legal action was known.  The Parole Board denied parole or any other form of conditional release in 1988, 1989 and 1990.  Steele did not appear at any of these reviews.

 

Judgments Below

 

Judge of First Instance, Paris J. (1989), 72 C.R. (3d) 58

 

    In December 1988, Steele filed a petition seeking an order in the nature of habeas corpus with certiorari, and relief pursuant to s. 24(1)  of the Charter .  It was alleged that his continued detention constituted cruel and unusual punishment in violation of s. 12  of the Charter .

 

    On the application, Paris J. heard evidence from Dr. Marcus, Dr. Koopman and Dr. Noone.  Dr. Marcus, who had interviewed Steele on a number of occasions during the 1960s, testified that Steele was now not a p{ae}dophile, had no obsession or compulsion to engage in sexual assaults, and did not present any hazard to the community.  Dr. Koopman testified that Steele suffered from a lack of emotional response and inability to profit from experience, but stated that he was not markedly pathological.  Dr. Noone testified that his review of Steele's record indicated that he had a desire for forced sex with women, although he did not believe that Steele was a p{ae}dophile.  He stated that Steele was "essentially untreated for a severe psychopathic personality and a pathological rape pattern".

 

    Paris J. began by considering his jurisdiction to review Steele's continued detention.  He relied upon the reasoning set out in Mitchell v. Attorney General of Ontario (1983), 35 C.R. (3d) 225.  In that case, Linden J. held that the execution or carrying out of a sentence can be reviewed at any time under the Charter  without retrospectively applying the Charter  to the original pronouncement of a sentence.  Paris J. observed that in R. v. Lyons, [1987] 2 S.C.R. 309, and R. v. Milne, [1987] 2 S.C.R. 512, this Court had upheld the constitutionality of the dangerous offender sentencing provisions found in the Criminal Code .  The majority reasons given by La Forest J. in Milne had expressly left undecided the validity of Linden J.'s ruling in Mitchell.  Paris J. concluded that the decision in Mitchell could still be applied and that he was therefore entitled to review Steele's continuing detention to determine whether, even though it was lawfully imposed, it now violated s. 12  of the Charter .

 

    Paris J. next determined that Steele's incarceration for 37 years was prima facie grossly disproportionate to the circumstances of the original offence and therefore in violation of s. 12  of the Charter .  He observed, however, that continued incarceration could probably be justified if the offender presented a clear risk of serious danger to the public.

 

    He exhaustively and with commendable care reviewed the material accumulated in Steele's file over 35 years and the testimony given on the application.  He concluded that Steele was not truly psychopathic, not a hard-core sexual deviate and not a p{ae}dophile.  He put forward his position in this way at p. 104:

 

    To be sure, by any measure Steele is not blessed with an attractive personality and he is his own worst enemy.  All agree he is superficial, emotionally unstable, impulsive and egocentric, does not handle liquor well and has little self-understanding.  He would profit greatly from a good dose of humility.  I fear that alcohol will continue to cause him trouble.  However, even given that difficulty, I cannot find that he is the kind of profoundly disturbed "time bomb" whose continued indeterminate detention is necessary for the protection of the public.

 

    The Crown argued that Steele was still a dangerous offender for the following reasons:  he had committed his earlier crimes under the influence of alcohol and continued to indulge in alcohol; he had attempted escape on several occasions; he rejected psychiatric treatment; and he had refused to cooperate with the National Parole Board.

 

    Paris J. rejected all these arguments.  It was his opinion that while Steele still had a drinking problem it was unlikely that his drinking would lead him to commit the kind of offences that would justify his continued incarceration.  As for his impulsive escapes, he noted that Steele had turned himself in to the authorities on each and every occasion.  Finally, he observed that Steele's rejection of treatment and lack of cooperation with the Parole Board had, for the most part, occurred in the latter years of his incarceration.  He found that they were due to his frustration and anger with the Board coupled with the fact that he had focused his attention on alternative legal avenues to obtain his release.

 

    Paris J. concluded that although the scheme for reviewing the detention of dangerous offenders was constitutional as a whole, it might not function properly in certain rare cases. In such circumstances, Steele and other offenders in the same position should have access to judicial review.  In his view the need for judicial review was based not upon errors committed by the National Parole Board but rather on a flaw in the operation of the parole review process itself. He held that Steele's continuing detention was in violation of s. 12 and ordered his unconditional release.

 

The Court of Appeal

 

    Locke J.A., writing for a unanimous Court of Appeal, held that the remedy of habeas corpus was available to the respondent and that Paris J. had exercised his discretion correctly.  He agreed that although Steele's original sentence was valid, his continuing detention violated s. 12  of the Charter .

 

    Locke J.A. noted that because Steele had brought his application outside of the parole review process, the Parole Board and the Correctional Service of Canada had no jurisdiction to impose terms on his release.  As a result, it was difficult to ensure that Steele's reintegration into the community would be appropriately supervised.  He suggested that as a general rule the Parole Board would be the most appropriate body to determine whether those who come before it should be released on the ground that their continuing detention violates s. 12  of the Charter .  However, he recognized that this question was not before the Court and held that because of Steele's age and the length of his imprisonment, it would be inequitable to require him to recommence his application by means of judicial review of the National Parole Board decisions.  He confirmed that Steele should be released but varied the unconditional release ordered by Paris J. to provide that the Crown could apply to the British Columbia Supreme Court for an order that Steele be returned to custody "should his conduct after release be such as to demonstrate that he does, in fact, represent so clear a danger of such serious harm as to render resumption of incarceration under the indeterminate sentence justifiable".

 

Present Situation

 

    From the respondent's factum it appears that the respondent has been released and has done well so far.  He is living with his parents, working in an auto body shop and attending upon Dr. Marcus every week.

 

Analysis

 

    The analysis must begin with a reference to R. v. Lyons, supra.  In that case the provisions of the Criminal Code  pertaining to the sentencing and continued detention of dangerous offenders were challenged on the grounds that they contravened s. 12  of the Charter .  La Forest J., writing for the full Court on this point, held that the imposition of an indeterminate sentence, without other safeguards, would be certain, at least occasionally, to violate s. 12  of the Charter .  However, he found that the requirements for regular parole review of an offender's continuing detention ensured that the sentence would be tailored to fit the circumstances of the individual and the offence.  As a result he found that these sentencing provisions did not infringe s. 12  of the Charter .

 

    The pertinent parole review provisions relevant to the case at bar are found in s. 761(2)  of the Criminal Code , R.S.C., 1985, c. C-46 , and s. 16(1)(a) of the Parole Act, R.S.C., 1985, c. P-2.  At the time that Lyons, supra, was decided, the same provisions were contained in s. 695.1(2) and s. 10(1)(a) of those respective Acts.  Section 761(2) provides:

 

    761. . . .

 

    (2)                    Where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period that was imposed before October 15, 1977, the National Parole Board shall, at least once in every year, review the condition, history and circumstances of that person for the purpose of determining whether he should be granted parole under the Parole Act and, if so, on what conditions.

 

    Section 16(1)(a) of the Parole Act sets out the criteria upon which an application for parole must be considered and provides as follows:

 

16. (1)  The Board may

 

(a) grant parole to an inmate, subject to any terms or conditions it considers desirable, if the Board considers that

 

    (i)  in the case of a grant of parole other than day parole, the inmate has derived the maximum benefit from imprisonment,

 

    (ii)  the reform and rehabilitation of the inmate will be aided by the grant of parole, and

 

    (iii)  the release of the inmate on parole would not constitute an undue risk to society;

 

In discussing these provisions, La Forest J. stated at pp. 342-43:

 

 

    While the criteria embodied in s. 10(1)(a) do not purport to replicate the factual findings required to sentence the offender to an indeterminate term of imprisonment, they do afford a measure of tailoring adequate to save the legislation from violating s. 12.  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.  Finally, the very words of s. 695.1 of the Code and s. 10(1)(a) of the Parole Act establish an ongoing process for rendering the sentence meted out to a dangerous offender one that accords with his or her specific circumstances.  [Emphasis in original.]

 

    From these reasons it can be taken as a starting point that Steele's sentence to an indeterminate term as a dangerous sexual offender did not contravene s. 12  of the Charter  and that the sentence imposed upon him was valid.

 

    It will be remembered that it was determined by Paris J., and upheld by the Court of Appeal, that although the indeterminate continuing  detention of a dangerous offender had been held in Lyons, supra, to be constitutional, nevertheless, in certain rare cases such as this one, the continuing detention of an offender would constitute cruel and unusual punishment in violation of s. 12  of the Charter . If this position is correct it would mean that while the parole review process would work effectively in the vast majority of cases, there would be the occasional case in which even the most responsible and careful application of the parole review process could not prevent a continuing detention from becoming cruel and unusual punishment.

 

    I must, with respect, differ from that conclusion.  It seems to me to fly in the face of the decision of this Court in Lyons, supra, where this Court observed at p. 363 that "the fairness of certain procedural aspects of a parole hearing may well be the subject of constitutional challenge, at least when the review is of the continued incarceration of a dangerous offender".  In my view the unlawful incarceration of Steele was caused, not by any structural flaw in the dangerous offender provisions, but rather by errors committed by the National Parole Board.  These errors are apparent upon a review of the record of Steele's treatment by the Board over the long years of his detention.

 

    In 1948, provisions for the indeterminate sentencing of "criminal sexual psychopaths" were enacted.  The same group of amendments to the Code provided for a review of the condition, history and circumstances of the offender's detention once every three years by the Minister of Justice.  In 1958, the National Parole Board was created by the Parole Act, S.C. 1958, c. 38.  At this time the authority for conducting the review of the sentences of criminal sexual psychopaths was transferred to the Parole Board.  Section 8(a) of the Parole Act established the following criteria for granting parole:

 

                            8.  The Board may

 

                            (a)grant parole to an inmate if the Board considers that the inmate has derived the maximum benefit from imprisonment and that the reform and rehabilitation of the inmate will be aided by the grant of parole;

 

    These criteria remained in effect until 1968 when they were replaced by the provisions of s. 16(1) cited above.  These provisions require the Board to grant parole where: (i) the inmate has derived the maximum benefit from imprisonment; (ii) the inmate's reform and rehabilitation will be aided by the grant of parole; and (iii) the inmate's  release would not constitute an undue risk to society.

 

    In reviewing the indeterminate sentences of dangerous offenders, it is fundamentally important that the Board consider these criteria.  As La Forest J. stated in Lyons at pp. 340-41:

 

. . . in the context of a determinate sentencing scheme the availability of parole represents an additional, superadded protection of the liberty interests of the offender.  In the present context, however, it is, subsequent to the actual imposition of the sentence itself, the sole protection of the dangerous offender's liberty interests. . . . Seen in this light, therefore, the parole process assumes the utmost significance for it is that process alone that is capable of truly accommodating and tailoring the sentence to fit the circumstances of the individual offender.

 

    It is only by a careful consideration and application of these criteria that the indeterminate sentence can be made to fit the circumstances of the individual offender.  Doing this will ensure that the dangerous offender sentencing provisions do not violate s. 12  of the  Charter .  If it is clear on the face of the record that the Board has misapplied or disregarded those criteria over a period of years with the result that an offender remains incarcerated far beyond the time he or she should have been properly paroled, then the Board's decision to keep the offender incarcerated may well violate s. 12.  In my opinion, this is such a case.

 

    First, Steele's imprisonment had long ago reached the point at which he had derived "the maximum benefit from imprisonment".  During his incarceration governments have changed, wars have begun and ended and a generation has grown to maturity.  He has been in prison longer than the vast majority of the most cruel and callous murderers.  Indeed, it is uncertain whether imprisonment provided Steele with any benefit at all.  During the first 20 years of his detention there were no facilities in British Columbia that could provide the psychiatric treatment Steele needed.  By the time it was available, Steele was a middle-aged institutionalized offender who, not surprisingly, viewed the treatment program as a means of gaining his release rather than as an opportunity for rehabilitation.

 

    Throughout the period of his imprisonment, numerous observers expressly stated not only that Steele had received the maximum benefit from imprisonment, but also that continued detention would cause him to deteriorate.  As early as 1960, Dr. P. Middleton warned that any treatment facilities available in the penitentiary would not offset "the pernicious  effects of association" with other inmates.  Others who made this same point include:  Dr. D. C. MacDonald, Deputy Warden W. H. Collins and Field Representative P. D. Redecopp in 1964; Dr. J. C. Bryce in 1968; Mr. Lee Pulos in 1970; Field Parole Officer William F. Foster and Mr. Pulos, again, in 1972; Dr. Milton H. Miller and Dr. A. Saad in 1974; and Dr. W. J. Ross in 1981.  Even Dr. Noone, who testified for the Crown in this application, acknowledged the detrimental effects of indeterminate sentencing for dangerous offenders.  While some observers expressed the opinion that Steele should not be released, not one of them appears to have argued that continued incarceration had been or would be beneficial for Steele.

 

    The second criterion has also long been satisfied.  Steele has deteriorated in the prison environment.  Many, indeed the great majority of those psychiatrists and psychologists who assessed him, expressed the opinion that his rehabilitation could only be facilitated and attained by his gradual, supervised release into the community.  It appears that the Parole Board acknowledged this in its decisions to grant Steele limited freedom between 1968 and 1970 and between 1980 and 1987.  During both of these periods the Board permitted Steele to undertake a programme of escorted passes that resulted in brief stays in a half-way house environment.  These periods of relative freedom were terminated when Steele infringed his parole conditions by drinking alcohol and breaking curfew.  Unfortunately, despite assessments by observers suggesting that these parole violations were merely adjustment problems, the Board seems to have presumed that Steele was incapable of benefitting from an association with the community outside the prison.

 

    There remains then the third and most important criterion, namely whether the offender constitutes an undue risk to society.  If an inmate's release continues to constitute an undue risk to the public, then his or her detention can be justifiably maintained for a lifetime.  There can be no doubt that in the ordinary course of events the assessment as to whether or not an inmate's release would pose an undue risk to the community is best left in the discretion of the experts who participate in the Parole Board review decisions.  However, in light of the inordinate length of Steele's period of incarceration, it is appropriate to consider whether the Board erred in its evaluation that Steele did in fact constitute a danger to the community.

 

    Of the psychiatrists and psychologists who interviewed Steele and whose reports were provided to the Parole Board, sixteen expressed a recommendation as to whether or not he should be paroled.  Thirteen of the sixteen recommended that he should be released on some form of supervised parole.  Two stated that he should not be released.  One psychologist changed his mind over the course of several years from a position which cautioned against parole to one of arguing in favour of parole.   Those recommending release were:  Dr. MacDonald in 1956 and 1964; Dr. Middleton in 1960; Dr. Bryce in 1968; Dr. Lipinski in 1970 and 1972; Dr. Bulmer in 1970; Mr. Pulos in 1970 and 1972; Mr. P. DesLauriers in 1972; Dr. Robert Halliday in 1973; Dr. Miller, Dr. Saad, Mr. F. M. Van Fleet and Mr. K. S. Oey in 1974; and Dr. Tyhurst in 1979 and 1985.  Those counselling against release were: Dr. Eaves in 1979 and 1980; and Dr. Noone in 1985 and 1988.  Dr. W. J. Ross considered that Steele was not "a good risk" when he first assessed him in 1978; however, by 1981 he was recommending that Steele be released on gradual parole.

 

    On the application, Paris J. heard testimony from three psychiatric experts.  Of those, Dr. Marcus and Dr. Koopman testified that Steele was not dangerous and should be released.  Dr. Noone stated that Steele remained an untreated sexual psychopath who should not be released.  After carefully reviewing the evidence in extensive detail, Paris J. concluded that Steele's release would not endanger the public.

 

    Upon the evidence presented to this Court, the careful reasons and conclusion of Paris J. on this issue are in my view preferable to those of the Parole Board which as will be demonstrated did not properly exercise its jurisdiction.

 

    It is difficult to find any evidence of acts committed by Steele during the past two decades that would suggest that he remained an undue risk to society.  His parole violations resulted not from a tendency to repeatedly engage in violent or sexually deviant behaviour, but from the difficulties he had in abiding by parole curfew restrictions and abstaining from drinking alcohol.  The nature of these problems was described by Dr. Marcus in these words:

 

He finds it very hard to adhere to inflexible rules such as those that are imposed when he is on parole. . . .  His personality style is always to stretch the clock. . . .  It is a similar attitude which has led Mr. Steele into situations where he has been in breach of parole conditions relating to meeting curfews.  Here again Mr. Steele holds the view that he is now 53 years old and after a lifetime in prison he should not be held to requirements which treat him in a somewhat childlike [manner].  It is precisely this attitude which has made him a bad parole prospect in terms of meeting all the expectations and rules imposed by his Parole Officer.  Yet, in my opinion, what must be kept firmly in mind in the context of assessing the degree of risk of harm to others that Mr. Steele poses at the present time, is that Mr. Steele in the course of these recent infractions did not repeat the pattern either of his original offence nor of his re-offending while on parole in 1962.

 

    The problems inherent in requiring chronic alcoholics to meet rigid drinking restrictions have been well documented in the Report of the Inquiry into Habitual Criminals in Canada, vol. 1 (1984), where Judge Leggett wrote at p. 83:

 

Many of the habitual criminals are alcoholic.  This disease has been a significant factor in the "revolving-door syndrome" of these individuals.  When released on parole, a condition to abstain from alcohol is frequently included as a condition to such release.  While some of the habitual criminals have been able to abide by this condition and successfully complete parole, many others have not.  Those who have failed to abide by such conditions have found themselves, sooner or later, re-incarcerated as a result of the revocation of their parole.

 

    Steele may have a problem with alcohol and in dealing with rigid discipline. But those factors in themselves cannot justify his continued detention.  If breaches of a domestic curfew and the consumption of alcohol were the sole criteria for liberty then a significant proportion of our society should be incarcerated for an indefinite period.  That is not to say that breaches of the conditions of parole should not be seriously considered.  However, all the circumstances of the breach and any explanations as to the reasons for its occurrence should also be taken into account.

 

    The statutory criteria should be applied to the individual inmate and considered in light of all the relevant circumstances.  One of those circumstances will be length of the term served.  The passage of several decades in prison may not in itself justify parole.  However, it may well serve as an indication that the inmate is no longer dangerous.  Surely with the passage of very long periods of time sexual appetite might reasonably be expected to decline to an extent that it may at least be controlled, if not extinguished.  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.

 

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

 

    It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12  of the Charter .  The test for determining whether a sentence is disproportionately long is very properly stringent and demanding.  A lesser test would tend to trivialize the Charter .

 

    As well, it should not be forgotten that there is in place a method whereby appellate courts can review sentences to ensure that they are appropriate.  In R. v. Smith, [1987] 1 S.C.R. 1045, Lamer J. set out the strict test for reviewing a sentence under s. 12  of the Charter .  At page 1072 he wrote:

 

The test for review under s. 12  of the Charter  is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive.  We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence.  Section 12 will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate.

 

    The history of the offence and the offender which I have set out makes it apparent that the sentence is now "so unfit having regard to the offence and the offender as to be grossly disproportionate."  This is one of those rare cases where the sentence continuing Steele's detention after 37 years in prison violates s. 12  of the Charter .

 

    It is necessary to make a further comment.  As I have made clear above, the continuing detention of a dangerous offender sentenced pursuant to the constitutionally valid provisions of the Criminal Code  will only violate s. 12  of the Charter  when the National Parole Board errs in the execution of its vital duties of tailoring the indeterminate sentence to the circumstances of the offender.  This tailoring is performed by applying the criteria set out in s. 16(1) of the Parole Act.  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 from the National Parole Board decision, not by means of an application for habeas corpus.  It would be wrong to sanction the establishment of a costly and unwieldly parallel system for challenging a Parole Board decision.  As well, it is important that the release of a long term inmate should be supervised by those who are experts in this field.  I agree with the comments of Locke J.A.:

 

    In the case of persons subject to an indeterminate sentence who have spent many years in prison, it is highly desirable that their release, if and when it occurs, should be conditional, should be subject to supervision by those experienced in the parole or probation fields, and should be accompanied by the sort of assistance which will increase their likelihood of adjusting to the change in environment and, if possible, becoming self-sufficient and useful members of society.  Under the present statutory and administrative arrangements, it seems that this can be achieved only in association with release by the parole board, in the exercise of its discretion under s. 761  of the Criminal Code .

 

    However, in view of Steele's age and the length of his detention, it would be unfair to require him to commence new proceedings by way of judicial review from the National Parole Board decision.  In these highly unusual circumstances, I would confirm Steele's release on the basis of the application for habeas corpus.  I further agree with the position taken by the Court of Appeal that since his release cannot be regulated through normal parole procedures, it is appropriate, in the interest of public safety, to maintain the conditions placed by the Court of Appeal upon his release. 

 

Disposition

 

    I would dismiss this appeal.

 

    Appeal dismissed.

 

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

 

    Solicitor for the respondent:  Michael Jackson, Vancouver.