125. (1) Application - This section and section 126 apply to an offender sentenced, committed or transferred to penitentiary for the first time, otherwise than pursuant to an agreement entered into under paragraph 16(1)(b), other than an offender

serving a sentence for one of the following offences, namely,

murder;

an offence set out in Schedule I or a conspiracy to commit such an offence,

an offence under section 83.02 (providing or collecting property for certain activities), 83.03 (providing, making available, etc. property or services for terrorist purposes), 83.04 (using or possessing property for terrorist purposes), 83.18 (participation in activity of terrorist group), 83.19 (facilitating terrorist activity), 83.2 (to carry out activity for terrorist group), 83.21 (instructing to carry out activity for terrorist group), 83.22 (instructing to carry out terrorist activity) or 83.23 (harbouring or concealing) of the Criminal Code or a conspiracy to commit such an offence,

an offence under section 463 of the Criminal Code that was prosecuted by indictment in relation to an offence set out in Schedule I, other than the offence set out in paragraph (1)(q) of that Schedule,

an offence set out in Schedule II in respect of which an order has been made under section 743.6 of the Criminal Code,

an offence contrary to section 130 of the National Defence Act where the offence is murder, an offence set out in Schedule I or an offence set out in Schedule II in respect of which an order has been made under section 140.4 of the National Defence Act, or

a criminal organization offence within the meaning of section 2 of the Criminal Code, including an offence under subsection 82(2);

convicted of an offence under section 240 of the Criminal Code;

serving a life sentence imposed otherwise than as a minimum punishment; or

whose day parole has been revoked.

         (1.1) Idem - For greater certainty, this section and section 126

apply to an offender referred to in subsection (1) who, after being sentenced, committed or transferred to penitentiary for the first time, is sentenced in respect of an offence, other than an offence referred to in paragraph (1)(a), that was committed before the offender was sentenced, committed or transferred to penitentiary for the first time; and

do not apply to an offender referred to in subsection (1) who, after being sentenced, committed or transferred to penitentiary for the first time, commits an offence under an Act of Parliament for which the offender receives an additional sentence.

         (2) Review of cases by Service - The Service shall, at the time pre- scribed by the regulations, review the case of an offender to whom this section applies for the purpose of referral of the case to the Board for a determination under section 126.

         (3) Evidence to be considered - A review made pursuant to subsection (2) shall be based on all reasonably available information that is relevant, including

the social and criminal history of the offender obtained pursuant to section 23;

information relating to the performance and behaviour of the offender while under sentence; and

any information that discloses a potential for violent behaviour by the offender.

         (4) Referral to Board - On completion of a review pursuant to sub- section (2), the Service shall, within such period as is prescribed by the regulations preceding the offender's eligibility date for full parole, refer the case to the Board together with all information that, in its opinion, is relevant to the case.

         (5)Delegation to provincial authorities - The Service may delegate to the correctional authorities of a province its powers under this section in relation to offenders who are serving their sentences in provincial correctional facilities in that province.

[1992, c. 20, s. 125; 1995, c. 42, s. 39; 1997, c. 17, s. 24; 1998, c. 35, s. 116; 1999, c. 5, ss. 50, 53; 2001, c. 41, s. 90. ]

Prosyk v Canada (National Parole Board) - (1993), 72 F.T.R. 219 (Fed. T.D.)

- A prisoner serving an initial penitentiary term who receives a concurrent sentence is not subject to the accelerated parole provisions of s125(1).

S. (M.) v. Canada (Correctional Service, Deputy Commissioner) - (1995), 96 F.T.R. 154 (T.D.)

- A prisoner is serving a sentence for incest, an offence set out in Schedule 1, is not eligible for an accelerated parole review. The argument that incest is not a violent offence, as set out in s126(7), does not apply to the accelerated parole provisions. Section 125(1) clearly excludes applicants serving sentences for offences in Schedule 1.

Normand v Canada (National Parole Board) (1996) - 124 F.T.R. 114 (T.D.)

- There is no burden of proof in a parole proceeding; the only consideration is for the protection of society.

    When reviewing an application for accelerated parole, the NPB may give consideration to all relevant information regarding the potential for violence, pursuant to s125(3), even if that information relates to the facts of a charge that was dismissed against the applicant.

    Information regarding the actions of criminally involved biker gangs can be considered by the NPB when reviewing an application for accelerated parole, when the applicant has maintained connections with that gang while incarcerated. See also, Cazzetta v. Bouthillier, [1996] R.J.Q. 2856 (C.A.)

Daoud v Canada (Attorney General) - (1997), 133 F.T.R. 266 (T.D.)

- When an application for parole by exception for deportation purposes has already been reviewed, the applicant is not then eligible for accelerated parole under s125.

Larsen v Canada (National Parole Board) - (1999), 29 C.R. (5th) 121, 178 F.T.R. 30 (T.D.)

- A detention order under s105 of the Immigration Act does not remove the right of a prisoner to be considered for day parole under s125. A decision that grants day parole will allow a review of the detention order under s103(6) of the Immigration Act.

Abel v. Edmonton Institution for Women (Director) - (2000), 149 C.C.C. (3d) 401 (Alta. Q.B.)

- Parole eligibility depends on the provisions of the Act at the time the offence was committed. Where the Act was amended after the commission of the offences for which the applicant was convicted, to include two of the offences in Schedule 1, the amendment does not apply to the applicant's parole review. The Superior Court appropriately exercised concurrent jurisdiction with that of the Federal Court in this case, due to the pure question of law, claiming Charter relief along with a habeas corpus application.

126. (1) Review by Board - The Board shall review without a hearing, at or before the time prescribed by the regulations, the case of an offender referred to it pursuant to section 125.

         (2) Release on full parole - Notwithstanding section 102, if the Board is satisfied that there are no reasonable grounds to believe that the offender, if released, is likely to commit an offence involving violence before the expiration of the offender's sentence according to law, it shall direct that the offender be released on full parole.

         (3) Report to offender - If the Board does not direct, pursuant to subsection (2), that the offender be released on full parole, it shall report its refusal to so direct, and its reasons, to the offender.

         (4) Reference to panel - The Board shall refer any refusal and reasons reported to the offender pursuant to subsection (3) to a panel of members other than those who reviewed the case under subsection (1), and the panel shall review the case at the time prescribed by the regulations.

        (5) Release on full parole - Notwithstanding section 102, if the panel reviewing a case pursuant to subsection (4) is satisfied as described in subsection (2), the panel shall direct that the offender be released on full parole.

        (6) Refusal of parole - An offender who is not released on full parole pursuant to subsection (5) is entitled to subsequent annual reviews in accordance with subsection 123(5).

         (7) Definition of "offence involving violence" - In this section, "offence involving violence" means murder or any offence set out in Schedule I, but, in determining whether there are reasonable grounds to believe that an offender is likely to commit an offence involving violence, it is not necessary to determine whether the offender is likely to commit any particular offence.

        (8) Termination or revocation - Where the parole of an offender released pursuant to this section is terminated or revoked, the offender is not entitled to another review pursuant to this section.

[1992, c. 20, s. 126; 1995, c. 42, s. 40. ]

126.1 Release on day parole - Sections 125 and 126 apply, with such modifications as the circumstances require, to a review to determine if an offender referred to in subsection 119.1 should be released on day parole.

[1997, c. 17, s. 25. ]