Cunningham v. Canada [1993] 2 S.C.R. 143: Parole -- Mandatory supervision -- Parole Act amended to change conditions for release on mandatory supervision -- Whether amendment amounts to denial of prisoner's liberty contrary to principles of fundamental justice

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, McLachlin and Iacobucci JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Constitutional law -- Charter of Rights -- Liberty of the person -- Fundamental justice -- Parole -- Mandatory supervision -- Parole Act amended to change conditions for release on mandatory supervision -- Whether amendment amounts to denial of prisoner's liberty contrary to principles of fundamental justice -- Canadian Charter of Rights and Freedoms, s. 7 -- Parole Act, R.S.C., 1985, c. P-2, s. 21.3(3)(a)(ii).

Prisons -- Parole -- Mandatory supervision -- Parole Act amended to change conditions for release on mandatory supervision -- Whether amendment amounts to denial of prisoner's liberty contrary to principles of fundamental justice -- Canadian Charter of Rights and Freedoms, s. 7 -- Parole Act, R.S.C., 1985, c. P-2, s. 21.3(3)(a)(ii).

In 1981 the appellant was sentenced to 12 years' imprisonment for manslaughter. Under the Parole Act in force at the time, he was entitled to be released on mandatory supervision after serving approximately two-thirds of his sentence, provided that he was of good behaviour. In 1986 the Act was amended to allow the Commissioner of Corrections, within six months of the "presumptive release date", to refer a case to the National Parole Board where he has reason to believe, on the basis of information obtained within those six months, that the inmate is likely, prior to the expiration of his sentence, to commit an offence causing death or serious harm. The Parole Board may, if it sees fit, deny release of the inmate. Shortly before his release date, the appellant received a notice that the Commissioner had decided to seek his continued detention. Following a hearing, he was ordered to be detained until his sentence expired, subject to annual reviews. The Ontario Supreme Court refused his application for a writ of habeas corpus. The Court of Appeal upheld the judgment. This appeal is to determine whether the 1986 amendment to the Parole Act amounts to a denial of the appellant's liberty contrary to the principles of fundamental justice under s. 7 of the Canadian Charter of Rights and Freedoms; if so, whether the violation is justifiable under s. 1 of the Charter; and whether the Commissioner acted lawfully in referring the appellant to the Board for a hearing within six months of his release date.

Held: The appeal should be dismissed.

The appellant has suffered deprivation of liberty. While the duration of the restriction of his liberty interest has not been affected, the manner in which he may serve part of that sentence has. The deprivation is sufficiently serious to warrant Charter protection. There is a significant difference between life inside a prison and the greater liberty enjoyed on the outside under mandatory supervision. The 1986 amendment to the Parole Act did not, however, violate the principles of fundamental justice, which are concerned not only with the interest of the person who claims his liberty has been limited, but with the protection of society. From a substantive point of view, the change in the law strikes the right balance between those interests. The prisoner's liberty interest is limited only to the extent that this is shown to be necessary for the protection of the public. Nor does the procedure established under the Act and Regulations violate the principles of fundamental justice. The new procedure provides for a hearing, and the prisoner is entitled to representation throughout. The material on which the matter may be referred for hearing is limited, and there are provisions for new hearings to review the detention in the future. These requirements provide safeguards against arbitrary, capricious orders and ensure that curtailment of release on mandatory supervision occurs only when it is required to protect the public and then only after the interests of the prisoner in obtaining the release have been fully and fairly canvassed.

The Commissioner did not violate the Parole Act by referring the appellant's case to the Parole Board. While some of the information relied on was in the files prior to the six-month period before the prospective release date that should not prevent the Commissioner from relying on new and revised reports to the same effect when they come to his attention within the six-month period.

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