Steele v. Mountain Institution

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.]

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.

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.

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".

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.

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.

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: