Under s.135 of the Corrections and Conditional Release Act, the National Parole Board has absolute discretion to terminate the parole of a dangerous sexual offender, though such discretion must be exercised with a modicum of fairness, free of undue bias. Under this Act, a sexual offender may have his parole suspended for two principal reasons:
i) For a breach of a condition of parole; or
ii) To protect the public safety.
Parole suspension is only temporary. Within thirty days, the suspension order must either be cancelled or referred to the National Parole Board for a possible revocation of the parole, which would entail the continuation of incarceration under the indeterminate sentence, subject to a review for parole release at some future date.
However, once paroled, the sexual offender has achieved the status of a parolee, entitling him to the protection of section 7 of the Charter, arisng out of a decision to revoke his parole. In order to successfully argue that his parole revocation constitutes a deprivation of liberty under the Charter, the parolee must demonstrate that the deprivation of this right was contrary to the principles of natural justice.
Since the decision to revoke parole is made by the NPB - an administrative tribunal created by statute - its exercise of discretion is subject to judicial review. The criminal offender may choose to challenge the NPB's decision on the grounds that the Board did not sufficiently consider relevant factual evidence submitted before it; that it rendered a decision with an undue apprehension of bias; or that it committed an error in applying the law.
In theory, these procedural rules and safeguards are supposed to provide for an effective balancing of two competing interests - those of the offender and those of the public. But what of the sex offender who no longer offends while out on parole, yet just can't seem to get his sexual addictions under control? How does the criminal justice system perform under such circumstances?
In the Federal Court decision of Aney v. Canada (Attorney General), a designated dangerous offender had his parole revoked due to his preoccupation with pornography and repeated visits to prostitutes, accompanied by his confession that he was a sex addict. Though he had not committed any criminal or sexual offence while out on parole, the Board nevertheless determined that he presented an undue risk to the public, and accordingly revoked his parole.
Upon review of the Board decision, the Federal Court upheld the revocation, noting that the Board had applied the requisite legal criteria and had rendered its factual conclusions in a reasonable, fair, and unbiased manner.
The accused, in this case, had demonstrated a pattern of breaching conditions of parole under prior releases, and so, the record of prior parole suspensions - despite the fact that the accused was subsequently released on full parole years later - likely had a significant effect on the Board's subsequent decision to consider the accused as an unacceptable risk to the public due to the latest evidence of persistent sexual addiction.
