The Year at a Glance
Official Title: Performance Monitoring Report 2018-2019, The Year at a Glance
From: Parole Board of Canada
The most significant legislative initiative for the Parole Board of Canada in 2018-19 introduced a new program under the Board’s jurisdiction. There were also two court cases of significance. Parliament did not adopt any bills that would amend criminal justice legislation relevant to conditional release or affect the Board’s workload in conditional release in a substantive way.
Legislative and Policy Changes
Over the course of 2018-19, Parliament adopted one bill of significant impact to the PBC.
On June 21, 2018, Bill C-66 (Expungement of Historically Unjust Convictions Act) came into force. The bill gave the Board exclusive jurisdiction to order or refuse to order expungement for certain historically unjust convictions involving consensual sexual activity between same-sex partners that would be lawful today. The enactment creates a procedure for expungement of eligible convictions and provides for the destruction or removal of the judicial records of those convictions from federal repositories and systems. The enactment deems a person who is convicted of an offence for which expungement is ordered never to have been convicted of that offence. The legislation also provides that the Governor in Council may add certain offences to the schedule and establish criteria for any offence that must be satisfied for the expungement of a conviction to be ordered.
In addition, there were two court decisions that had an effect on the Board’s conditional release and record suspension programs.
On December 14, 2018, the Supreme Court of Canada (SCC) released its decision in R. v. Boudreault (Boudreault), regarding the constitutionality of the mandatory victim surcharge under section 737 of the Criminal Code. The court found that the mandatory victim surcharge constituted cruel and unusual punishment because its impact and effects created circumstances that were grossly disproportionate to what would otherwise be a fit sentence. The legislative provision was struck down with immediate effect.
The SCC released its decision in R. v. Bird (Bird) on February 8, 2019. The central issue in this case was whether Mr. Bird, an offender under a long-term supervision order, was permitted to challenge his residency condition imposed by the Board during his criminal proceedings for breach of a condition (e.g. a collateral attack of the Board’s decision). Ordinarily, if one wishes to challenge the conditions of a court order, they have to appeal the order. A collateral attack occurs when a party bound by an order seeks to avoid compliance with that order by challenging its validity. Of importance to the Board, the SCC recognized that the Board is a “court of competent jurisdiction” under section 24(1) of the Charter and therefore, has the ability to grant charter remedies within the statutory framework.
Implications for the Board
Bill C-66 had an impact on the Board’s workload in 2018-19, necessitating the development, preparation and implementation of the expungement program. The record suspension workload now includes the processing of applications for expungement. The Board received and processed 14 expungement applications in 2018-19.
The Board has been proactive in regards to the Boudreault case with respect to the record suspension program. When evaluating the eligibility of an offender seeking a record suspension, the Board will not consider any mandatory victim surcharge imposed on or after October 24, 2013 until December 18, 2018, the date on which section 737 of the Criminal Code was struck down.
The Bird decision has significant impacts for the Board both in relation to conditional release decisions as well as criminal record suspension decisions given that the Board has the authority to address Charter violations and provide appropriate remedies within the relevant statutory framework.
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