Nowhere in any of the reports that were the foundation for Bill C-10 or in any submissions to these committees by officials from the parole board was there any recommendation, not even a footnoted hint, that a further far-reaching amendment to the CCRA would be introduced. Yet what is now before you, just a few months after the passage of Bill C-10, buried deep in a 400-page budget bill, is a change to the correctional legal landscape that, in its impact on constitutional rights, eclipses anything passed in Bill C-10.
The second reason flows from the first and relates to the constitutionality of the amendment to the CCRA contained in division 37, clause 527. This would abolish the right of an offender whose parole or statutory release has been suspended to an in-person hearing before the parole board to determine whether to cancel the suspension or revoke the parole. Henceforth, these parole decisions will be based on a file review only.
Bill C-38, in abolishing the right to an in-person hearing and providing for only file reviews, violates section 7 of the charter. In a consistent and hitherto unchallenged line of cases decided by both provincial superior and federal courts dating back to 1982, it has been held that section 7 of the charter gives a suspended offender the right to an in-person hearing when the issue of revocation is being determined.
The violation of section 7 that the proposed amendment would cause has not and cannot be demonstrably justified as a reasonable limit on a constitutional right. The only reason given by the government for the legislative change is to save costs. As Federal Court of Appeal Justice Mark MacGuigan, himself a former Minister of Justice, stated in R. v. Howard, “Convenience and justice are often not on speaking terms.”
In my written brief, I have provided this committee with a more detailed understanding of the factual and legal context and consequences of parole suspension and revocation and the crucial importance of the in-person, post-suspension hearing. This will explain why the courts have concluded that this hearing is a fundamental principle of justice.
The great majority of parole suspensions are not based on the parolee's reoffending for a serious crime of violence, or indeed for any crime, but for allegations of breach of a condition of parole. The alleged breach of conditions contained in a parole officer's report, which constitutes the primary file document upon which the parole board reviews these cases, is often based upon information contained in police reports. Without an in-person hearing, the reliability of this information cannot be properly tested.
I have provided the committee with examples of actual cases that demonstrate the importance of the in-person hearing, and where without the right to such a hearing the offender's parole would almost certainly have been revoked unfairly and needlessly, in many cases resulting in many more years' imprisonment.
The importance of the in-person hearing is not limited to ensuring fairness to the offender. The likelihood that the board will have before it accurate and complete information and relevant arguments needed to make decisions regarding the risk to public safety is considerably enhanced by the in-person hearing. Hearing the offender in person, therefore, is an essential element of the process. It permits fairness to the offender while making it possible for the board to accurately assess the risk to the public.
The third and final reason, to my alarm, is that the amendment will disproportionately affect aboriginal offenders, who as a result of systemic discrimination have lower rates of conditional release and higher rates of revocation. In its recent decision in R. v. Ipeelee, the Supreme Court reaffirmed its decision in R. v. Gladue that the courts must take into account the special circumstances of aboriginal offenders. The board has previously, to its great credit, responded to the challenge by introducing elder-assisted hearings. The hearing is held in accordance with aboriginal protocol, in a circle, and the board-appointed elder counsels the offender and provides advice to board members. The involvement of elders also provides a valuable opportunity to introduce traditional teachings and the positive involvement of aboriginal communities.
Bill C-38, by abolishing post-suspension hearings, would extinguish the possibility of an elder-assisted hearing in the post-suspension context. In doing so, Parliament will be aggravating, not alleviating, the systemic discrimination referred to by the Supreme Court, and that discrimination has been referred to as a staggering injustice.
I urge this committee to reject clause 527 of Bill C-38.