122. (1) Day parole review - Subject to subsection 119(2), the Board shall, on application, at the time prescribed by the regulations, review, for the purpose of day parole, the case of every offender other than an offender referred to in subsection (2).

         (2) Special cases - The Board may, on application, at the time prescribed by the regulations, review, for the purpose of day parole, the case of an offender who is serving a sentence of two years or more in a provincial correctional facility in a province in which no program of day parole has been established for that category of offender.

         (3) Decision or adjournment - With respect to a review commenced under this section, the Board shall decide whether to grant day parole, or may adjourn the review for a reason authorized by the regulations and for a reason- able period not exceeding the maximum period prescribed by the regulations.

         (4) Renewal of application - Where the Board decides not to grant day parole, no further application for day parole may be made until six months after the decision or until such earlier time as the regulations prescribe or the Board determines.

         (5) Maximum duration - Day parole may be granted to an offender for a period not exceeding six months, and may be continued for additional periods not exceeding six months each following reviews of the case by the Board.

         (6) Withdrawal of application - An offender may withdraw an application for day parole at any time before the commencement of the review under this section.

[1992, c. 20, s. 122; 1995, c. 42, ss. 36(F), 69(E). ]

Canada (Minister of Citizenship and Immigration) v. Chaudhry - (1999), 138 C.C.C. (3d) 350, 178 D.L.R. (4th) 110 (C.A.)

- This day parole applicant was subject to an order under s105(1) of the Immigration Act, directing detention until sentence had expired. The Immigration and Refugee Board refused to order a detention review. The NPB found therefore that he was ineligible for day parole consideration. The Court held that, when the subject of a s105(1) order becomes eligible for day parole, and the Board refuses to review eligibility, the order becomes the operative order for continued detention and therefore, the applicant is entitled to a detention review under s103(6) of the Immigration Act . The Court found it unnecessary to determine whether eligibility for day parole could be considered for those subject to a s105(1) order. (see Larsen, below)

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

- An order under s105 of the Immigration Act does not remove the right of a prisoner to be considered for day parole when eligible. If the Board decides in favour of day parole, the Immigration and Refugee Board can review the detention order, as per s103(6) of the Immigration Act.

Noyes v. National Parole Board - (1994), 72 F.T.R. 125 (T.D.)

- The Court quashed a decision of the NPB that denied the applicants request for unescorted temporary absences and other forms of release, finding that the decision was patently unreasonable. The Board had determined that the applicant, a paedophile, had developed a "tolerance to treatment", when there was no material in the record to substantiate such a determination.

MacInnis v. Canada (Solicitor General) - (1991), 45 F.T.R. 220 (T.D.)

- This application for mandamus, to compel the commissioner to direct a further psychiatric assessment, was rejected by the Court, finding that the warden did all that could reasonably be expected to prepare for the application to be heard. Under the former Penitentiary Act, R.S.C. 1985, c-P-5, section 6 requires the commissioner to prepare for an application for parole in a reasonable and complete manner, but not in a manner dictated by the applicant.

R. v. Frederick - (1989), 52 C.C.C. (3d) 433 (Ont. H.C.J.)

- The Court found that there was no legislation permitting this applicant to a review for day parole eligibility prior to the minimum 15 year period provided for by s747(2) of the Criminal Code. Where a parole ineligibility period may be reduced to allow temporary parole within 3 years of a fixed period of non eligibility, according to s747(2), the provision does not grant a positive authority to consider such a reduction.

123. (1) Full parole review - Subject to subsection (2), the Board shall, at the time prescribed by the regulations, review, for the purpose of full parole, the case of every offender who is serving a sentence of two years or more and who is not within the jurisdiction of a provincial parole board.

         (2) Waiver of review - The Board is not required under subsection (1) or (5) to review the case of an offender who has advised the Board in writing that the offender does not wish to be considered for full parole and who has not in writing revoked that advice.

         (3) Review by Board - The Board shall, on application within the period prescribed by the regulations, review, for the purpose of full parole, the case of every offender who is serving a sentence of less than two years in a penitentiary or provincial correctional facility in a province where no provincial parole board has been established.

         (3.1) Short sentences - The Board is not required to review the case of an offender who applies for full parole if the offender is serving a sentence of less than six months.

         (4) Decision or adjournment - With respect to a review commenced under this section, the Board shall decide whether to grant full parole, or may grant day parole, or may adjourn the review for a reason authorized by the regulations and for a reasonable period not exceeding the maximum period prescribed by the regulations.

         (5) Further review - Where the Board decides not to grant parole following a review pursuant to section 122 or subsection (1) or a review is not made by virtue of subsection (2), the Board shall conduct another review within two years after the later of

the date on which the first review under this section took place or was scheduled to take place, and

the date on which the first review under section 122 took place,

and thereafter within one year after the date on which each preceding review under this section or section 122 took place or was scheduled to take place, until

the offender is released on full parole or on statutory release;

the sentence of the offender expires: or

less than four months remains to be served before the offender's statutory release date.

         (6) Renewal of application - Where the Board decides not to grant full parole following a review pursuant to this section, no further application for full parole may be made until six months after the decision or until such earlier time as the regulations prescribe or the Board determines.

         (7) Withdrawal of application - An offender may withdraw an application for full parole at any time before the commencement of the review under this section.

[1992, c. 20, s. 123; 1995, c. 42, ss. 37, 69(E). ]

Mostaghim v Canada (National Parole Board) - (1994), 83 F.T.R. 316 (T.D.)

- Where a prisoner has advised the Board in writing that he does not wish to be considered for full parole, the Board is not required to review a case, but can, given the absolute discretion to grant parole, as a matter of principle under s107(1)(a).

Cleary v Canada (Correctional Services) - (1990), 56 C.C.C. (3d) 157, 44 Admin. L.R. 142, 108 N.R. 225 (F.C.A.)

- Time frames referred to in the Parole Act and Regulations and in the Corrections and Conditional Release Act and Regulations are, and are intended to be, imperative.

Bains v Canada (National Parole Board) - (1989), 71 C.R. (3d) 343, [1989] 3 F.C. 450, Admin. L.R. 39 (T.D.)

- Prior to implementing a day parole order, the NPB received representations by the trial judge, the Attorney General, and the prosecutor. they then reversed the decision. The Court quashed the reversal of the original order, finding that the board had no statutory authority to consider the information, nor to change the release order due to such consideration. The Court found that the action of the board, to stay or quash an original decision granting day parole, exceeded their jurisdiction. The consideration the board gave to the representations, which were shown to have been invoked by the Chair of the board, was extraneous to the board's formulated conclusions regarding character, conduct and progress toward rehabilitation.

Scott v Canada (National Parole Board) - [1988] 1 F.C. 473 (T.D.)

- The Board can reverse an earlier decision where information that was not available when parole was granted arises, pursuant to s14.2(1) of the Parole Regulations. The board's consideration is not confined to facts arising after the decision was made. Res Judicata does not apply to National Parole Board decisions, as to preclude their subsequent review by the board. The board's decision to cancel a day parole program that was earlier approved, a reconsideration based on a psychiatric report, was appealed and the appeal dismissed. 84 N.R. 230 (C.A.) The Court noted that the decision may have been different if the right to cross-examine the psychiatrist had been denied.

MacInnis v Canada (A.G.) - (1986) 4 FTR 211 (F.C.T.D.)

- The language stating that the Board "may" grant parole, referred to in s16(1) of the Parole Act, determines that the provision to grant parole is permissive rather than requisite.

Schemmann v. Canada (National Parole Board) - (1995), 102 C.C.C. (3d) 273, 106 W.A.C. 177 (B.C.C.A.)

- Only in extreme or unusual cases will the Court consider an application for habeas corpus under s24(1) of the Charter, where it is made by a prisoner who does not yet have status as a parolee.

Dumas v Director of Leclerc Institution of Laval - (1986), 30 C.C.C. (3d) 129, 55 C.R. (3d) 83, [1986] 2 SCR 459

- A National Parole Board decision to grant day parole was delayed and later reversed, with parole granted on a future date. The decision was challenged by an application for habeas corpus. The Court found that continued deprivation of liberty could only be challenged by way of habeas corpus where the applicant had status as parolee. In this case, the status of parolee would only be effective at the future date when parole had been granted. Therefore, the Court found that the validity of the board's actions are subject to challenge under s18 of the Federal Court Act, R.S.C. 1985, c F-7 or under s24 of the Charter.

124. (1) Offenders unlawfully at large - The Board is not required to review the case of an offender who is unlawfully at large at the time prescribed for a review under section 122, 123 or 126, but shall do so as soon as possible after being informed of the offender's return to custody.

         (2) Timing of release - Where an offender is granted parole but no date is fixed for the offender's release, the parole shall take effect, and the offender shall be released, forthwith after such period as is necessary to implement the decision to grant parole.

         (3) Cancellation of parole - Where an offender has been granted parole under section 122, 123 or 126, the Board may, after a review of the case based on information that could not reasonably have been provided to it at the time parole was granted, cancel the parole if the offender has not been released or terminate the parole if the offender has been released.

         (4) Review - Where the Board exercises its power under subsection (3) in the absence of a hearing, it shall, within the period prescribed by the regulations, review and either confirm or cancel its decision.

[1992, c. 20, s. 124; 1995, c. 42, s. 38. ]