36746    Attorney General of Canada, Parole Board of Canada v. Benoît Way, Maxime Gariépy


Canadian Charter of Rights and Freedoms — Constitutional law — Life, liberty and security

In 2012, the Parliament of Canada enacted the Jobs, Growth and Long‑term Prosperity Act, S.C. 2012, c. 19. Section 527 of that Act amended s. 140 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“Act”). The effect of the amendment was to eliminate the mandatory oral hearing held by the Parole Board du Canada (“Board”) for reviews following the suspension, termination or revocation of parole or statutory release. The new s. 140(1)(d) of the Act limits the right to such a hearing to cases in which parole is cancelled. However, the Board has the discretion to conduct a review by way of an in‑person hearing in any case not referred to in s. 140(1).

Before the amendment in question came into force, s. 140(1)(d) provided for a mandatory hearing where parole was suspended, terminated or revoked unless the offender waived the right to a hearing in writing or refused to attend the hearing.

The Board revoked the day parole of Benoît Way and the parole of Maxime Gariépy (“respondents”). In both cases, the decisions were made on consideration of the file and written representations, without holding a hearing. The respondents filed applications for habeas corpus with the Superior Court and sought a declaratory judgment based, inter alia, on s. 7 of the Canadian Charter of Rights and Freedoms. The Quebec Superior Court allowed the motion. The Quebec Court of Appeal dismissed the appeal.