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Digest of the Week — Liberty Interest Requires Presence of Accused

Canada (Procureur général) c. Way |
2015 CarswellQue 9832 |
Cour d'appel du Québec

Administrative law | Requirements of natural justice | Right to hearing | Procedural rights at hearing | Opportunity to respond and make submissions

Accused W and G were convicted of second degree murder and sentenced to life imprisonment — In meantime, in 2012, parliament enacted Jobs, Growth and Long-term Prosperity Act (JGLPA) — Section 527 of JGLPA amended s. 140(1)(d) of Corrections and Conditional Release Act (CCRA) — Purpose of this amendment was to abolish rule whereby Parole Board of Canada had to hold hearing in presence of offender following suspension, cancellation or revocation of parole — Following amendment, that rule only applied following cancellation of parole — Accused were both granted parole for while but then parole was revoked in absentia — Accused brought motion asserting that new rule violated their Charter rights — Trial judge held that presence of accused at such hearings was necessary to protect right of accused to be heard — Trial judge added that decision affecting freedom of accused could not be based merely on written reports — Hence, trial judge declared that s. 527 of JGLPA and s. 140(1)(d) of CCRA were of no force or effect — Attorney General of Canada appealed — Appeal dismissed — Trial judge had jurisdiction since question in dispute concerned constitutionality of statutory provision — Statutory provisions in question constituted violation of Charter rights of accused and could not be saved under s. 1 of Charter — Therefore, trial judge did not err in concluding that statutory provisions in question were of no force or effect.

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