The federal government’s tough-on-crime agenda suffered another blow after the Quebec Court of Appeal ruled that a legislative amendment slipped into the 2012 omnibus bill that effectively ended mandatory parole board hearings following a suspension, termination or revocation of parole or statutory release was of no force in the province.
In a highly-anticipated ruling by the prison law community, the Quebec Court of Appeal held that the legislative change, a cost-savings measure expected to recoup $1.6 million, breached rights guaranteed under section 7 of the Canadian Charter of Rights and Freedoms. In a similar vein, the Supreme Court of Canada last year ruled that a federal law passed in 2011 that retroactively abolished accelerated parole review for offenders who had already been sentenced violates a person’s Charter right to not be punished again.
“The ruling is a warning to the federal government when it wants introduce legislative amendments that affect fundamental rights,” noted Denis Lemieux, Advocatus Emeritus, a law professor with an expertise in administrative and public law, who was cited by the appeal court. “The Quebec Court of Appeal clearly states that one cannot put aside fundamental rights of people to reduce costs.”
Three years ago, Parliament introduced an omnibus bill that amended section 527 of the Jobs, Growth and Long-term Prosperity Act (JGLPA) which in turn amended paragraph 140(1)(d) of the Corrections and Conditional Release Act (CCRA), which limits the right to an audience solely to cases where parole has been cancelled. As a result, the Parole Board was no longer required by law to hold a hearing following a suspension, termination or revocation of parole (day and full) or statutory release. The Parole Board however could still choose to hold a hearing for any case if Board members thought it was necessary.
The legislative amendment was intended to merely remove the obligatory character of post-suspension hearings, said Stephen Fineberg, a Montreal lawyer specializing in prison and parole practices. But in reality, paper review became the norm. “Hearings are held only where the Board perceives special reason, which is to say, where Board members can justify spending the money,” said Fineberg. “Thus parole panels have been forced to take difficult decisions without the benefit of adequate input from the subject, or their impression of the individual. They are forced to work in a way which is inconsistent with the principles they adhere to in other areas of their mandate.”
The appeal court upheld a lower court ruling that struck down the amendments because it created an “arbitrary situation.” It is “unfair” to allow a detainee whose day-parole is cancelled before it even begins to have a hearing yet to confer the Parole Board the “unfettered power” to make a determination “on this benefit” in a case where a detainee’s day-parole is suspended or revoked after he obtained it, said Quebec Court of Appeal Justice Jacques Levesque in a unanimous ruling in the Attorney General of Canada and the Parole Board of Canada v. May 2015 QCCA 1576.
“Aside from Parliament’s desire to save money, there is no rational basis for applying a different procedure to decisions that have a similar effect on different detainees,” held Justice Levesque. “The financial aspect, which is at the heart of this legislative reform, cannot justify breaching the residual liberty of an individual, who after serving his sentence or part of his sentence was granted a return to life in society, without permitting him from being heard.”
While a detainee can appeal a decision of the Parole Board to the Appeal Division, it is only a paper review and the detainee is not given a chance to present his case in person. And that points out the appeal court is inadequate and constitutes a breach of natural justice.
The appeal court was also not “convinced” that reincarceration of a detainee was an adequate and “efficient” economic measure in a free and democratic society that justified withdrawing the right to be heard. It also noted that when the legislative amendments were being examined by the House of Commons, its impact was scrutinized by the Standing Committee on Finance and not the Standing Committee on Justice and Human Rights.
“There is no doubt that by proceeding through an omnibus bill there are risks of abuse as was the case here, that is, there is a lack of serious analysis that can shed light on the impact of fundamental rights,” said Lemieux, legal advisor at Tremblay Bois Mignault Lemay Avocats in Quebec City. “When you are before the Standing Committee that examines economic considerations, clearly fundamental rights are not part of their concerns.”
Though the ruling is not binding outside of the province, Montreal criminal lawyer Maxime Hébert Lafontaine believes that it may persuade other courts to re-examine the issue. The ruling also paves the way to bypass the appeal process of the Parole Board and file a habeas corpus application before the Superior Court, according to Lafontaine, who successfully plead the case. An appeal before the Parole’s appeal division can take approximately seven months to be heard, and another year if the detainee files a leave for application before the Federal Court. In contrast, a habeas corpus application before the Superior Court is a far speedier process, said Lafontaine. “The ruling opens an interesting option for detainees,” said Lafontaine.
But Pierre Tabah, a Montreal criminal lawyer, believes that the ruling only reverts the situation to where it stood before the omnibus bill was passed. “The ruling highlights the importance of the right to being heard when there is an important decision being made over the fate of a detainee,” said Tabah. “The ruling clearly states that the federal government can amend laws but when it breaches fundamental rights, even those of a detainee who has the right to be heard, the courts will have a tendency to protect those rights and set things straight.”
This story was originally published in The Lawyers Weekly.