The author ot this communication letters of 17 April 19HO, canadian citizen, who is represented
June l~Hl) 1S GardOn c. van Duzen, a betore the committee by protessor
The author alleges that he lS the victim ot a breach by Canada ot article 15 (1) ot the Internatlonal covenant on C1Vl1 and Political Rights. relevant tacts, which are not in dispute, are as tollows: The :.~ On 17 November 19b"! and l~ June lYtlH, respectively, the author was sentenced upon corr.viction of dittarent ottences to a three year and a lU-year prison term. The latter term was to be served concurrently W1th the tormer, so that the comblned terms were to expire on 11 June 191f· On 31 May 1911, the author was released on parOle under the Parole Act 19'11.1, then 1n torce. On 13 December 1!:i /4, wh1le still on paro'::€:- the author was convicteC:: ot the lndlctab1e ottence ot breaki,ng and enterlng and, on 23 December 19/4, s~ntenced to imprisonment tor a term ot three years. By application, ot section 11 ot the parole Act 191U his parole was treated as torteited on 13 Decemcer ...':J 14" AS Cl consequence, the author' s combined terins -l~U- 2.J According to the author the combined eftect of the new .Law was that torteiture of paro.Le was abolished and the pena.Lty tor committ1ng an lndictable oftence wh1.Le on parole was made lighter, provided the indictable oftence was committed on or atter 15 OCtober .L977, because, inter a.L1a, pursuant to the new provis10ns, t1me spent on parole after 15 october 1977 and betore suspension of parole, was credited as time spent under sentence. Theretore, a parolee whose paro.Le was revoked after that date was not required to spend an equivalent time 1n custOdy under the previous sentence.
The author alleges that, by not making the "lighter penalty" retroactively app.Licable to persons whO have committed indictab.Le oftences while on paro.Le before l~ October 1977, the Parliament of Canada has enacted a .Law which deprives him ot the benefit of article .L~ ,ot the uovenant and thereby ta11ed to perform its duty, under article 2 of the Covenant, to ensure to al.L individuals within 1tS territory and SUbject to its Jurisdiction the r1ghts recognized 1n the Covenant and to take the necessary steps to adopt such legislative measures as may be necessary tu give ettect to those rights.
As regards the admissibility of the cow~unication the author claimed that in the present state ot the law 1n canada the benet1t ot art1c.Le 15 ot the COvenant could only be afforded to him through the royal prerogative of mercy, exercised by the Governor-General ot canada on the advice ot the Pr1vy Council tor canada. A petition submitted by the author in this connexion was ~ejected on .L9 January 1979 denying the validity ot the author'S claim. It was expla1ned that the re.Levant provisions in article 15 ot the Covenant applied only where the penalty tor an otfence had been reduced by law, and since ther~ was no suggestion that the penalties attributab.Le to the oftences tor which the author was 1ncarcerated had been reduced, atter he committed them, the sa1d prov1sion was not applicable in hiS case.
The author ma1ntained that, as a reSUlt, domestic remedies had been eXhausted. He also stated that he had not app.L1ed to any other internat~.ona.L body. He requested the Committee to tind that he was entitled to rece1ve credlt, as partial cvmpletion ot his comblned terms ot impn.sonment, 1:or the t1me spent by him on parole, namely 1,292 days, between jl May 197.L and 1j December 1974.
By its decision 01: ./ August 1979 the Human lUghts Committee transmitted the communication under rule 91 ot the proviS10na.L rules ot procedure to the ~tate party concerned, requesting intormation and observat10ns relevant to the quest10n ot admissibillty of the communication.
By a note dated 24 March 1980 the state party objected to the admissibility ot the communication on the ground that the communlcat10n was lncompatlb.Le wlth the provisions of the Covenant and as such inadmisslble under article j ot the opt10nal * This date appears trom a correction submitted by the state party (19 February 19H2), the date hav1ng ~arller been glven by the partles as 19 December 1984. 6•6 -151- 1 pena~ty WhlCh the law decreed tor any given crimlnal oftence and that, therefore, the new provisions did not resu~t in a "~ighter penalty" within the mean1ng ot artic~e 15 ot the COvenant. ~ 6.~ On 17 April ~9HU, comments on behalf ot the author ot the commun1catlon were subm1tted in rep~y to the State party's submlssion ot l4 March ~~HU. T~ey retuted the state party's contentl0n that the granting of parole did not come within the ~ega~ term ot "penalty" and that the provis1ons ot the Cr1m1na~ Law lIrnendment Act ~':J77 did not result in a "~ighter penalty". Discuss1ng a wide range of meanings of the word "pena~ty", the submiss10n reterred to several ~aws enacted in Canada Which, by way of legal interpretations and Judicial decisions, did not permit the State party's conclusion that a punlshment not imposed by a court lS not a penalty. The author further claimed that, according to Canad1an court rU~lngs ln specit1c cases, it was not unjustlt1ab~e to conc~ude that automatlc deprivatl0n ot "statutory remission" (applicat10n ot torteiture ot parOle) by operat1on ot ~aw, a~though without any court order, was a penalty and ~hat theretore the provlS10ns of the Criminal Law Amendment Act 1~17, lt applied to his case, would result 1n a .lighter penalty.
Discussing applicable principles ot lnterpretatlon lt was submitted that, ln case ot doubt, a presumption ln tavour ot the 11berty ot the lnd1vldual should be applied to article 15 (1). As a consequence, tbis provlsion - un~ike the Canadian Interpretation Act, section 3b - was sald not to be Ilmlted to a penalty imposed or adJudged after the change ln the law. In this connexion lt was argued that this meaning was assumed in reservatl0ns made by certaln other States parties when they ratit1ed the Covenant, and was also supported ln the proceedlngs in the Third UOmIDlttee ot the General Assemb~y ot the Unlted Natlons ln ~9bO, ln WhlCh canada had participated.
By its decision ot 2~ JUly 19ijO the Committee, after tindlng, lnter alia, ~hat the communication was not lncompatlble wlth the provlsl0ns ot the Covenant, declared the communication admissible.
In its submission under article.4 (l) ot the Optl0nal protocol, dated 18 February 198.1, the State party sets out, inter alia, the law relating to the canadlan paro.1e system and asserts that it is not ln breach of ltS obligatlons u~der the Internatl0nal Covenant on Civil ·and Political Rights. It contends: (a) That article l~ ot the International Covenant on Civil and Political Rights deals only with criminal penalties imposed by a criminal court tor a particular criminal oftence, pursuant to criminal proceedlngs, (b) That the torteiture ot parOle 15 not a criminal penalty within the meaning of article 15 ot the Covenant,
The State party further elaborates on the definition of the word "penalty" as used in article 15 (1) of the Covenant.
The State party submits that there are various kinds of penalties: these may be criminal, civil or administrative. This distinction between criminal penalties and administrative or disciplinary ones, the State party argues, is generally accepted. Criminal penalties, it further submits, are sometimes referred to as "formal punishment" while the administrative penalties are referred to as "informal punishment".
The State party adds that the setting or context of article 15 of the covenant is criminal law. The words "gUilty", "criminal offence" and "offender" are evidence that when the word "penalty" is used in the context of article 15, what is meant is "criminal penalty". The State party finds unacceptable Mr. Van Duzen's proposition, that the word "penalty" in article 15 of the Covenant must be given a wide construction which would mean that article 15 would apply to administrative or disciplinary sanctions imposed by law as a consequence of criminal convictions.
The State party furthermore refers to a series of Canadian court decisions on the nature and effects of parole, its suspension or revocation. It also argues, quoting variousautborities, that the Canadian process of sentencing permits flexibility with respect to forfeiture of parole. It points out that the last sentence of three years (plus forfeiture of parole) when the statutory maximum is 14 years, makes it possible to argue, in view of Mr. Van Duzen's criminal record, that the judge did take into consideration his forfeiture of parole. Also the role of the National Parole Board is discussed in this context.
The St3te party ag~ees with the alleged principle of interpretation referred to in paragraph 6.2 above, but is unable to find any ambiguity in article 15 of the COvenant because it is clearly restricted, it submits, to the field of criminal law. Therefore, the State party submit~, the author cannot benefit from the presumption in favour of liberty.
In the light of the above, the State party submits that the Human Rights Committee ought to dismiss Mr. Van Duzen's communication. Article 15, it submits, deals with criminal penalties, while the process of parole is purely administrative, and therefore the Criminal Law Amendments Act 1977 cannot be regarded as providing a lighter penalty within the ambit of article 15.
On 2 June 1981 the author through his representative submitted observations under rule 93 (3) of the Committee's provisional rules of procedure in response to the State party's submission of 18 February 1981 under article 4 (2) of the Optional Protocol.
The author observes that in article 15 (1) the word "criminal" is associated with "offence" and not with "penalty". The State party's attempt to narrow the meaning of "penalty" is not supported by the words of the article. It is submitted that if the offence is criminal within the meaning of the article, any penalty for the offence is a penalty within the nleaning of the article. The State party admits that. forfeiture and revocation of parole were penalties and that revocation -153-
The penalty of torteiture or revocatlon ot parole, he states, lS an lntegral part ot the penal process resulting trom conviction and impositlon of a sentence ot imprisonment and entorced by the agencies executing that sentence. The Penltentlary Service, the Natlonal Parole Hoard and the National Parole Service are all under the jurisidiction ot the Solicitor-General of Canada, and the Penitentlary service and the Natlonal Parole Service are branches of the Correctional Service ot Canada, under the jurisdiction and administrative direction and control ot the COmmissioner ot Corrections.
As the Government has emphasized, the author states, parole aftects the mode of undergoing a sentence ot lmprisonment imposed tor the ottence. Forteiture and revocation of parole were, before 15 October 1977, penalties tor breach of condltions ot parole. Hevocatlon ot parOle contlnues to be such a penalty. The State party's argument is that a penalty within the meaning of article 15 (1) lS only a so-called "criminal penalty" lmposed by a crlmlnal court. tor a partlcular criminal offence, pursuant to criminal proceedings. It must surely be agreed that a term of lmprisonment is suc,. a penalty. A penalty lS not exhausted W!len lt lS pronounced. It continues in operation until lt has been completely executed. Belng at large on parole lS theretore a mOde ot undergolng a crlmlnal penalty. FOrteiture and revocation ot parole and thelr consequences were penaltles tor breach of conditions ot a mode ot undergoing a criminal penalty. Even It the state party's detinitlon ot "penalty" wlthin the meanlng ot article l~ (1) were correct, which lS not admitted, torteiture and revocation of parOle WOUld be crimlnal penalties within tuat interpretation ot the article. The attempted distinction put torward by the GOVernment between an admlnistrative and a criminal penalty is Without toundatlon in this conte:<t. In this connexlon, attentlon 15 drawn to the statement ot Mr. Justice LeDain 1 in the Canadlan Federal Court of Appeal, in hiS reasons tor judgement in Re Zor,g and Commissioner ot Penitentlaries (1976) l C.F. &57, at 079-80, cited ln the reply, where he sald that torteiture ot parole was a penalty tor the act ot committlng an lndictable ottence while on parole. 9.b The author turther maintains that the dlstlnctlon between tormal punlshment, which is administered through th~ courts, and lntormal puniShment which lS used extensively in a wide variety ot lnterpersonal and lnstltutlonal contexts, mlsses the point ot this communication. The penalty here at lssue clearly entalls "punJ.shment tor crime". The distlnctron does not depend on the agency that administers or imposes the penalty. The nature ot the penalty, ltS relatlon to the ottence, and its consequences are the crltlcal tactors, not the agency that lmposes it.
Forteiture of parOle, When ln ettect, was a lawtul automatlc consequence by operation ot law ot conviction ot an lndlctable ottence ln certaln clrcumstances, but this per se is not the SUbJect ot the complaint. The author states that he w~uld have no complaint under article 15 (1) about the torteiture of hlS parole or the consequence ot torteiture ot parole, as they applied to him, It the amendments ot 19'/7 had not made llghter the penalty tor breach ot condltlons of parole wlthout maKing the amendment retroactive. -1~4-
Finally, the apthor's submission ot 2 June 19~i provides 1ntormation that on 1 May 1981 he was again released under the Paroie Act, under mandatory superv1s10n, which is substantially equivalent to parOle. It 1S argued, however, that as a result ot the conditions ot his release, he 1S not a tree man and may be re-imprisoned at any time until late 1n i~~4.w He cla1ms to be ent1tled to be completely tree atter 9 June 1981.
In additional observations, dated 11 June 1981, the author turther maintains that he was indeed subJected to the Jur1sdiction of a Jud1c1al author1ty 1n connexion with the forteiture ot his parole. He states that 1n accordance w1th the law in torce, he was brought betore a provincial jUdge, on or about Ij January i~/~ (at a time when he was already in custOdy tollowing his convict10n on 13 December 1974) who, in the exercise ot his jUdicial tunct10ns, deciared that the author'S parole was torteited and 1ssued a warrant, pursuant to sect10n i8 (2)ot the Parole Act, for his recommitment to a penitent1ary pursuant to sec~10n 2i ot the Parole Act, then in torce. lU.l The Human Rights Committee notes that the main point raised and declared adm1ss1bie 1n the present communication is Whether the provision for the retroactivity of a "lighter penalty" 1n articie is (i) ot the Covenant is applicable in the circumstances ot the present case. In this respect, toe Committee recalls that the Canadian legislation removing the automatic torfeiture ot parole tor ottences committed While on parole was made ettective trom l~ october 1977, at a time When the alleged victim was serving the sentence imposed on him under the earlier leg1s1ation. He now claims that under article 15 (1) he should benetit trom thiS subsequent change in the law. lU. The COmm1ttee turther notes that its interpretation and application of the International Covenant on CiVil and Political R1ghts has to be based on the pr1nc1ple that the terms and concepts ot the covenant are independent of any particular national system ot law and ot all dictionary detinitions. ~though the terms ot the COvenant are der1ved trom long tradit10ns w1thin many nations, the Committee must now regard them as having an autonomous meaning. The parties have made extensi?e submissions, in particular as regards the meaning of the word "penalty" and as regardS relevant Canadian law and practice. The Committee * According to a correction submitted by the state party (19 February 1982), Mr. Van Duzen's combined terms have been calculated to exp1re on ~ January 1985. ••
However, in the opinion of the Committee, it is not necessary for the purposes of the present case to go further into the very complex issues raised concerning the interpretation and application of article 15 (1). In this respect regard must be had to the fact that the author h&s subsequently been released, and that this happened even before the date when he claims he should be free. Whether or not this claim should be regarded as justifi~d under the Covenant, the Committee considers that, although his release is subject to some conditions, for practical purposes and without prejudice to the correct interpretation of article 15 (1), he has in fact obtained the benefit he has claimed. It is true that he has maintained his complaint and that his status upon release is not identical in law to the one he has claimed. However, in the view of the Committee, since the potential risk of re-imprisonment depends upon his own behaviour, this risk cannot, in the circumstances, represent any actual violation of the right invoked by him.
~r the reasons set out in paragraph 10.3, the Human Rights Committee, acting under article 5 (4) of the Optional Protocol to the International Covenant on Civil and Political Rights is of the view that the present case does not disclose a violation of the Covenant. -156-