The Year at a Glance

Context

The most significant legislative initiative for the Parole Board of Canada (PBC) in 2019-20 introduced a new class of record suspensions to the Record Suspension Program under the PBC’s jurisdiction. Parliament also adopted one bill that amended the Corrections and Conditional Release Act (CCRA) and there were two court decisions with cases of significant impact on the Board.

Legislative and Policy Changes

Over the course of 2019-20, Parliament adopted two bills of relevance to the PBC, the most pertinent of which introduced a new class of record suspensions to the PBC’s operations.

On August 1, 2019, Bill C-93 (An Act to provide no-cost, expedited record suspensions for simple possession of cannabis) came into force amending the Criminal Records Act. The amended legislation allows individuals previously convicted of only simple possession of cannabis who have satisfied their sentence (excluding payment of fines and victim surcharges) to apply to the PBC for a record suspension with no application fee or wait period.

Bill C-83 (An Act to amend the Corrections and Conditional Release Act and another Act), came into force on June 21, 2019. As it relates to the PBC, Bill C-83 broadened the scope of victims who can listen to an audio recording of a parole hearing to include those who attended the hearing. The legislation also introduced a new privacy criterion for applying exemptions to those who can listen to an audio recording of a hearing, and amended various terminology in the CCRA, notably replacing references to ‘Aboriginal’ with ‘Indigenous’.

In addition, there were two court decisions of significance that impacted the PBC’s conditional release and record suspension programs.

The Supreme Court of Canada (SCC) released its decision in the matter of Canada (Minister of Citizenship and Immigration) v. Vavilov (Vavilov) on December 19, 2019. The SCC clarified the standard of review to be applied by courts in the review of administrative decisions. The presumptive standard of review, including for review of PBC decisions, is reasonableness, which means that deference is owed to the administrative decision-maker, and the reviewing court will determine whether the decision falls within a range of reasonable outcomes. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the relevant facts and law. The presumption of reasonableness can be rebutted in two types of situations. First, where the legislature has indicated that it intends a different standard to apply. Second, where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of legal questions, such as constitutional questions and general questions of law of central importance to the legal system as a whole.

On March 19, 2020, the Federal Court of Canada released its decision in P.H. v. Canada (Attorney General) (P.H.). This case challenged the constitutional validity of applying the changes made to the Criminal Records Act (CRA) in 2010 and 2012 retrospectively to applicants who committed their offence(s) prior to the 2010 and 2012 amendments. The Court declared transitional provisions, section 10 of the Limiting Pardons of Serious Crimes Act and section 161 of the Safe Streets and Communities Act, contrary to sections 11(h) and 11(i) of the Charter in their retrospective application.

Implications for the Board

Bill C-93 necessitated the development, preparation and implementation of the cannabis record suspension program. The record suspension workload now includes the processing of applications for cannabis record suspensions. Applications are processed on an expedited basis and for eligible applicants, record suspensions for simple possession of cannabis are administratively ordered by PBC staff members. The PBC received and processed 436 cannabis record suspension applications in 2019-20.

Further to the P.H. court decision, effective March 19, 2020, applications for record suspensions are processed against the eligibility and decision-making criteria contained in the CRA as it read at the time of commission of the first offence. The decision in P.H., together with the coming into force of Bill C-93 has significantly impacted the PBC’s record suspension workload, as it is now necessary to process applications against four legislative schemes.

Operations relating to conditional release were impacted with the coming into force of Bill C-83, as updates to policy and procedures were required. The new provision resulted in a small increase in the number of victim requests to access an audio recording of a hearing, as victims who were previously unable to request access are now able to do so. The privacy criterion introduced requires the PBC to further assess whether to limit access in order to protect any privacy interest that is not clearly outweighed by the interest of the victim to listen to the audio recording.

The Vavilov decision will have an ongoing impact on the PBC as it relates to its decision-making. The SCC emphasized the importance of robust reasons for decisions, and PBC decision-makers must clearly demonstrate that their decisions are justified, intelligible, and transparent.