Re Mitchell and The Queen,

• Date: 07 July 1983
• Court: Superior Court of Justice of Ontario (Canada)

Canada, Ontario High Court.

(Linden J)

Re Mitchell and The Queen

Human rights Guarantees against arbitrary detention or imprisonment and cruel and unusual treatment or punishment Applicant sentenced as habitual criminal to imprisonment for an indeterminate period Whether continued detention constituting cruel and unusual treatment or punishment Whether amounting to arbitrary detention or imprisonment Whether a violation of the Canadian Charter of Rights and Freedoms 1982, Sections 9 and 12 Interpretation International Covenant on Civil and Political Rights, 1966 Use of Covenant as an aid in interpreting Charter rights

Treaties Implementation International Covenant on Civil and Political Rights, 1966 Covenant not implemented in Canadian domestic law Whether Canada under international human rights obligation to implement the provisions of Covenant Constitutional protection against arbitrary detention or imprisonment and cruel and unusual treatment or punishment Whether courts could resort to Covenant as an aid in interpreting provisions of Canadian Charter of Rights and Freedoms 1982, Sections 9 and 12 The law of Canada

Summary: The facts:The applicant, who had a criminal record of petty property offences, was sentenced to imprisonment for an indeterminate period as an habitual criminal. Later the provisions of the Criminal Code under which he had been sentenced were repealed and replaced by dangerous offender legislation. After 12 years in prison he applied for a writ of habeas corpus on the ground that his continued detention pursuant to the sentence violated his rights to be protected against cruel and unusual treatment or punishment and not to be arbitrarily detained or imprisoned under the provisions of Sections 9 and 12 of the Canadian Charter of Rights and Freedoms 1982 (the Charter). He also relied on Article 15(1) of the International Covenant on Civil and Political Rights, 1966 (the Covenant) as an aid in interpreting Sections 9 and 12 of the Charter.

Held:The application was allowed in part; the applicant was allowed to apply for a continuation of the proceedings to establish that he was not a danger to society within the meaning of Section 688 of the Criminal Code.

(1) As a Party to the International Covenant on Civil and Political Rights, 1966, Canada was obliged under Article 2 to adopt measures to give effect to the rights recognized therein. In the absence of implementing legislation, and in view of Canada's international human rights obligations, the courts could resort to the provisions of the Covenant as an aid in interpreting the ambiguous provisions of the Canadian Charter of Rights and Freedoms. In this case, Article 15(1) of the Covenant was of no assistance in interpreting Sections 9 and 12 of the Charter in view of the clear conflict between Article 15(1) which provided that

If subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby

(2) The applicant's continued detention as an habitual criminal was not a violation of the guarantees in Section 9 of the Charter against arbitrary detention and imprisonment. The Parole Board continued to review his detention and to grant him parole in accordance with set guidelines and there was nothing inherently capricious or unreasonable about the procedure involved or the criteria adopted to show that his continued detention was arbitrary.

(3) It was possible that the applicant's continued detention violated the guarantees against cruel and unusual treatment or punishment in Section 12 of the Charter. His continued detention as a habitual criminal for petty property offences for an indeterminate period of time in excess of 12 years, if he was no more than a social nuisance and not a danger to the public, surpassed all rational bounds of treatment or punishment and was so excessive as to outrage standards of decency. As such, the sentence amounted to cruel and unusual treatment or punishment unless it could be shown that such an infringement constituted a reasonable limit demonstrably justifiable in a free and democratic society. Therefore, the applicant was entitled to the relief pursuant to Section 24(1) of the Charter, and he was to be given an opportunity to establish that he was not a danger to society or a dangerous offender within the meaning of Section 688 of the Criminal Code.

The following is the text of the relevant parts of the judgment of the Court:

This is an application by Percy Wayne Mitchell for a writ of habeas corpus ad subjiciendum with certiorari in aid, or for relief pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms.

In 1970, the applicant was found to be a habitual criminal and was sentenced to detention in a penitentiary for an indeterminate period. At the present time, he is incarcerated at the Joyceville federal penitentiary in Ontario, pursuant to that sentence of preventive detention. The imposition of the sentence of preventive detention is not being challenged in this application. Rather, the applicant has invited this court to find that his continued detention pursuant to that sentence violates his rights to be protected against cruel and unusual treatment or punishment, and not to be arbitrarily detained or imprisoned. The applicant relies upon changes to the provisions of Part XXI of the Criminal Code, R.S.C. 1970, c. C-34, and the enactment of the Charter of Rights in support of these allegations. In addition, he contends that ss. 9 and 12 of the Charter should be interpreted and applied in a manner consistent with Canada's obligations under art. 15 of the United Nations International Covenant on Civil and Political Rights.

[The Court first decided on the jurisdiction of the Court to hear the application for a writ of habeas corpus ad subjiciendum with certiorari in aid, as for relief pursuant to Section 24(1) of the Canadian Charter of Rights and Freedoms and continued.]

II. Factual background

The applicant was born on June 29, 1922. His first conviction was in 1939, for attempted theft. Since that time, he has been convicted of numerous property offences and sentenced to varying periods of incarceration. He has also been convicted of assaulting a police officer, attempting to escape from custody, and three counts of armed robbery. In an affidavit filed before this court, the applicant swears that his convictions for armed robbery did not involve the use of a weapon.

In June, 1969, the applicant was convicted of 14 property offences, each charge involving amounts under $50. He was sentenced to concurrent sentences of two years for each charge. In August of that year, the Quebec Minister of Justice brought an application to have the applicant declared a habitual criminal. The criteria for making such a finding was set out in s. 660 of the Criminal Code, 195354 (Can.), c. 51 (as amended 196061, c. 43, s. 33(1)):

660(1) Where an accused has been convicted of an indictable offence the court may, upon application, impose a sentence of preventive detention in lieu of any other sentence...