129. (1) Review of cases by Service - Before the statutory release date of an offender who is serving a sentence of two years or more that includes a sentence imposed for an offence set out in Schedule I or II or an offence set out in Schedule I or II that is punishable under section 130 of the National Defence Act, the Commissioner shall cause the offender's case to be reviewed by the Service.

         (2) Referral of certain cases to Board - After the review of the case of an offender pursuant to subsection (1), and not later than six months before the statutory release date, the Service shall refer the case to the Board together with all the information that, in its opinion, is relevant to it, where the Service is of the opinion

in the case of an offender serving a sentence that includes a sentence for an offence set out in Schedule I, that

the commission of the offence caused the death of or serious harm to another person and there are reasonable grounds to believe that the offender is likely to commit an offence causing death or serious harm to another person before the expiration of the offender's sentence according to law, or

the offence was a sexual offence involving a child and there are reasonable grounds to believe that the offender is likely to commit a sexual offence involving a child before the expiration of the offender's sentence according to law; or

in the case of an offender serving a sentence that includes a sentence for an offence set out in Schedule II, that there are reasonable grounds to believe that the offender is likely to commit a serious drug offence before the expiration of the offender's sentence according to law.

         (3) Referral of cases to Chairperson of Board - Where the Commissioner believes on reasonable grounds that an offender who is serving a sentence of two years or more is likely, before the expiration of the sentence according to law, to commit an offence causing death or serious harm to another person, a sexual offence involving a child or a serious drug offence, the Commissioner shall refer the case to the Chairperson of the Board together with all the information in the possession of the Service that, in the Commissioner's opinion, is relevant to the case, as soon as is practicable after forming that belief, but the referral may not be made later than six months before the offender's statutory release date unless

the Commissioner formed that belief on the basis of behaviour of the offender during the six months preceding the statutory release date or on the basis of information obtained during those six months; or

as a result of any recalculation of the sentence under this Act, the statutory release date of the offender has passed or less than six months remain before that date.

[Repealed, 1995, c. 42, s. 44]

         (3.1) Detention pending referral - Where paragraph (3)(b) applies and the statutory release date has passed, the Commissioner shall, within two working days after the recalculation under that paragraph, make a determination whether a referral is to be made to the Chairperson of the Board pursuant to subsection (3) and, where appropriate, shall make a referral, and the offender is not entitled to be released on statutory release pending the determination.

         (4) Request for information by Board - At the request of the Board, the Service shall take all reasonable steps to provide the Board with any additional information that is relevant to a case referred pursuant to subsection (2) or (3).

         (5) Deadlines for review by Board - Where the case of an offender is referred to the Chairperson of the Board pursuant to subsection (3) during the six months preceding the statutory release date of the offender, or on or after that date, the Board shall

if the case is referred to the Chairperson more than four weeks before that date, review the case pursuant to subsection 130(1) before that date;

if the case is referred to the Chairperson during the four weeks preceding that date but more than three days before that date,

review the case pursuant to subsection 130(1) before that date, if possible, or

make an interim review of the case before that date; or

if the case is

referred to the Chairperson on the statutory release date or during the three days preceding that date, or

referred to the Chairperson pursuant to paragraph (3)(b) after the statutory release date has passed,

make an interim review of the case during the three days following the day on which the case was so referred.

         (6) Interim review - An interim review required by subsection (5) shall be made in the manner prescribed by the regulations.

         (7) Decision to review - On completion of an interim review pursuant to subsection (5), if the Board is of the opinion, on the basis of all the information provided, that a sufficient case is made for a review pursuant to subsection 130(1), the Board shall conduct a review of the case as soon as is practicable and not later than four weeks after the case was referred to the Chairperson of the Board.

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

         (9) Definitions - In this section and sections 130 and 132,

"serious drug offence" means an offence set out in Schedule II;

"sexual offence involving a child" means

an offence under any of the following provisions of the Criminal Code that was prosecuted by way of indictment, namely,

section 151 (sexual interference),

section 152 (invitation to sexual touching),

section 153 (sexual exploitation),

subsection 160(3) (bestiality in presence of child or inciting child to commit bestiality),

section 170 (parent or guardian procuring sexual activity by child),

section 171 (householder permitting sexual activity by child),

section 172 (corrupting children),

subsection 212(2) (living off the avails of prostitution by a child), and

subsection 212(4) (obtaining sexual services of a child),

an offence under any of the following provisions of the Criminal Code involving a person under the age of eighteen years that was prosecuted by way of indictment, namely,

section 155 (incest),

section 159 (anal intercourse),

subsections 160(1) and (2) (bestiality and compelling bestiality),

section 271 (sexual assault),

section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm), and

section 273 (aggravated sexual assault),

an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read immediately before January 1, 1988, that was prosecuted by way of indictment, namely,

section 146 (sexual intercourse with a female under 14),

section 151 (seduction of a female between 16 and 18), and

section 167 (householder permitting defilement),

an offence involving a person under the age of eighteen years under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read immediately before January 1, 1988, that was prosecuted by way of indictment, namely,

section 153 (sexual intercourse with step-daughter),

section 155 (buggery or bestiality),

section 157 (gross indecency), and

section 166 (parent or guardian procuring defilement), or

an offence involving a person under the age of eighteen years under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read immediately before January 4, 1983, that was prosecuted by way of indictment, namely,

section 144 (rape),

section 145 (attempt to commit rape),

section 149 (indecent assault on female), and

section 156 (indecent assault on male).

         (10) Determination of likelihood of offence - In determining whether an offender is likely to commit an offence causing death or serious harm to another person, a sexual offence involving a child or a serious drug offence, it is not necessary to determine whether the offender is likely to commit any particular offence.

[1992, c. 20, s. 129; 1995, c. 42, s. 44; 1998, c. 35, s. 117. ]

Budreo v National Parole Board et al - (1993) , 65 F.T.R. 276 (T.D.)

- The NPB initially ordered the prisoner's release on mandatory supervision. After receiving new information, pursuant to subsection 129(3), the board reviewed the case and referred it for a detention hearing, pursuant to subsection 129(7). The Court found that the NPB had jurisdiction to reconsider the criteria for detention and change the original decision, affirmed by the Court of Appeal. 76 F.T.R. 36, 167 N.R. 84 (C.A.)

Beaulieu v. Ingstrup - (1993), 67 F.T.R. 202 (T.D.)

- Where information was received to show that the prisoner had attempted new treatment, it was determined by the Court to be "new information" for the purposes of consideration within six months of the presumed release date. The prisoner had challenged the use of the information under the Parole Act, s21.3(3)(a), on the basis that it was the same information previously on file.

Sowa v. British Columbia - (2000), 47 W.C.B. (2d) 547 (B.C.C.A.), 2000 BCCA 558 (CanLII)

- The transitional provisions state that ss129 and 130 apply to all prisoners regardless of when they were sentenced. Therefore, subsection 129(2)(a)(ii) was properly applied in this case and the transitional provisions were found not to violate s15 of the Charter. Section 11(i) of the Charter was found not to apply.

130. (1) Review by Board of cases referred - Where the case of an offender is referred to the Board by the Service pursuant to subsection 129(2) or referred to the Chairperson of the Board by the Commissioner pursuant to subsection 129(3) or (3.1), the Board shall, subject to subsections 129(5), (6) and (7), at the times and in the manner prescribed by the regulations,

inform the offender of the referral and review, and

review the case,

and the Board shall cause all such inquiries to be conducted in connection with the review as it considers necessary.

         (2) Detention pending review - An offender referred to in subsection (1) is not entitled to be released on statutory release before the Board renders its decision under this section in relation to the offender.

         (3) Decision of Board - On completion of the review of the case of an offender referred to in subsection (1), the Board may order that the offender not be released from imprisonment before the expiration of the offender's sentence according to law, except as provided by subsection (5), where the Board is satisfied

in the case of an offender serving a sentence that includes a sentence for an offence set out in Schedule I, or for an offence set out in Schedule I that is punishable under section 130 of the National Defence Act, that the offender is likely, if released, to commit an offence causing the death of or serious harm to another person or a sexual offence involving a child before the expiration of the offender's sentence according to law,

in the case of an offender serving a sentence that includes a sentence for an offence set out in Schedule II, or for an offence set out in Schedule II that is punishable under section 130 of the National Defence Act, that the offender is likely, if released, to commit a serious drug offence before the expiration of the offender's sentence according to law,

in the case of an offender whose case was referred to the Chairperson of the Board pursuant to subsection 129(3) or (3.1), that the offender is likely, if released, to commit an offence causing the death of or serious harm to another person, a sexual offence involving a child or a serious drug offence before the expiration of the offender's sentence according to law.

         (3.1) When order takes effect - An order made under subsection (3) takes effect on the day on which it is made.

         (3.2) Effect of order where additional sentence - Where, before the expiration of a sentence in respect of which an order under subsection (3) has been made, an offender receives an additional sentence and the date of the expiration of the sentence that includes the additional sentence as provided by subsection 139(1) is later than the date of the expiration of the sentence that the offender was serving before the additional sentence was imposed,

the Board shall review the order at the time and in the manner prescribed by the regulations where, as a result of the additional sentence, the statutory release date has already passed or is within nine months after the day on which the offender received the additional sentence; and

the order is cancelled where, as a result of the additional sentence, the statutory release date is nine months or more after the day on which the offender received the additional sentence.

         (3.3) Board's powers on review - The Board shall, on completing a review under paragraph (3.2)(a)

confirm the order to prevent the release of the offender until the expiration of the sentence in respect of which the order was made; or

amend the order to prevent the release of the offender until the expiration of the sentence that includes the additional sentence as provided by subsection 139(1).

         (3.4) Detention pending review - An offender in respect of whom an order, that is subject to review under paragraph (3.2)(a), has been made is not entitled to be released on statutory release before the Board renders its decision under subsection (3.3) in relation to the order.

         (4) Special order by Board - Where the Board is not satisfied as provided in subsection (3) but is satisfied that

at the time the case was referred to it, the offender was serving a sentence that included a sentence for an offence set out in Schedule I or II, or for an offence set out in Schedule I or II that is punishable under section 130 of the National Defence Act, and

in the case of an offence set out in Schedule I or an offence set out in Schedule I that is punishable under section 130 of the National Defence Act, the commission of the offence caused the death of, or serious harm to, another person or the offence was a sexual offence involving a child,

it may order that if the statutory release is later revoked, the offender is not entitled to be released again on statutory release before the expiration of the offender's sentence according to law.

         (5) Order not to be released - An offender who is in custody pursuant to an order made under subsection (3) or amended under paragraph (3.3)(b) is not eligible to be released from imprisonment under this Act except on a temporary absence with escort for medical purposes under Part I.

         (6) Where order for release revoked - Where an offender is ordered under subsection (3) or paragraph (3.3)(b) not to be released and is subsequently released pursuant to an order made under subparagraph 131(3)(a)(ii) or (iii) and the statutory release is later revoked, the offender is not entitled to be released again on statutory release before the expiration of the offender's sentence according to law.

         (7) [Repealed, 1995, c. 42, s. 45]

[1992, c. 20, s. 130; 1995, c. 42, s. 45; 1997, c. 17, s. 26(F); 1998, c. 35, s. 118. ]

Truscott v Mountain Institution - (1983), 4 C.C.C. (3d) 199 (BCCA)

R. v Moore - (1983), 4 C.C.C. (3d) 206 (Ont. CA)

- Decisions held that the Board had no power to "gate" prisoners by revoking mandatory supervision before release, under the former s15 of the Parole Act, were reversed statutorily by the enactment of s21.4 of the Parole Act, along with its companion sections under S.C. 1986, c.42, s5.

Sowa v British Columbia - (2000), 47 W.C.B. (2d) 547 (BCCA), 2000 BCCA 558 (CanLII)

- No warrant is necessary for authority to detain under s130. The original warrant of committal is sufficient for further detention under this section.

Neeposh v Canada (NPB) - (1993), 64 F.T.R. 279 (T.D.)

- A case can be heard by the NPB under this section where, at the time the case is referred to the Board, the Correctional Service, rather than the case management officer, has formed the necessary opinion that it be referred. A case management officer's opinion as to whether the s129 criteria is met does not preclude the hearing of the case under s130.

Prasad v Canada (NPB) - (1991), 5 Admin. L.R. (2d) 251

- At a detention hearing under the former s21.2 of the Parole Act, the NPB can consider reports of criminal conduct, even where there is no conviction.

Niessen v Canada (NPB) - (1988), 19 F.T.R. 297 (T.D.)

- The NPB is not obligated to determine whether the Correctional Service has reasonable grounds to refer a case under s21.4 of the former Parole Act. Also, the prisoner does not have an absolute right to cross-examine witnesses at a hearing. And, where the Board does not accept an expert report, the Court held that, while the Board should not reject an experts report completely without good reason, it need not be held to be conclusive. Further, the Board is not obligated to notify the prisoner that the expert's report was not fully accepted.

Sowa v British Columbia - (2000), 47 W.C.B. (2d) 547 (BCCA), 2000 BCCA 558 (CanLII)

- The transitional provision specifically provides that ss129 and 130 applies to all prisoners, regardless of the date of sentence. Therefore, s129(2)(a)(ii) was properly applied in this case. The transitional provision was found not to violate s15 of the Charter and s11(i) of the Charter was found not to apply.

Ross v. Kent Institution (Warden) - (1987), 34 C.C.C. (3d) 452, 57 C.R. (3d) 79, 12 B.C.L.R. (2d) 145 (CA)

- Under the former Parole Act, ss21.2-21.6, the "gating provisions", were found not to violate s7 of the Charter. (Ss129-131 now provide a similar function, allowing the Board to detain a prisoner during a period of statutory release.)

R. v. Evans - (1986) 30 C.C.C. (3d) 313 (Ont. CA)

- A NPB decision not to release a prisoner under the former Parole Act, s21.4, was found to violate s7 of the Charter, in that it deprived the right to liberty; however, it was found to be in accordance with the principles of fundamental justice. Section 21.4 was found not to violate the principles against arbitrary detention or imprisonment provided by s9 of the Charter. Further, the provisions were found to be reasonable limits on a prisoner's rights, given their purpose of protecting the public.

Gregory v. Edmonton Institution - (1995), 164 A.R. 157 (Q.B.)

- Where a claim seeking habeas corpus was made on the basis that the NPB had provided insufficient disclosure and notice while denying release under s130, the court held that it lacked jurisdiction to consider the claim. Once the case had been referred to the NPB under s130, with subsection (2) providing that no release be granted until the decision was made, the status of the prisoner was not yet that of parolee, for the purposes of a habeas corpus application. The appropriate remedy, however, was through review or appeal by the Federal Court.

Pinheiro v. Canada (NPB) - (1993), 21 W.C.B. (2d) 26 (B.C.S.C.), appeal dismissed as moot, 24 W.C.B. (2d) 552 (BCCA)

- Habeas corpus is not available to challenge decisions of the NPB made under this section, to detain a prisoner until the expiration of a sentence, given that such a decision is a continuation of detention and is not an increased or additional detention order. The appropriate challenge would be through the Federal Court by way of judicial review.

131. (1) Annual review of orders - The Board shall review every order made under subsection 130(3) within one year after the date the order was made, and thereafter within one year after the date of each preceding review while the offender remains subject to the order.

         (2) Board to inquire - The Board shall cause such inquiries to be conducted in connection with each review under subsection (1) as it considers necessary to determine whether there is sufficient new information concerning the offender to justify modifying the order or making a new order.

         (3) Board's powers on review - The Board, on completing a review under subsection (1), shall

with respect to an order made under subsection 130(3) or paragraph 130(3.3)(b),

confirm the order,

order the statutory release of the offender subject to the condition that the offender reside in a community-based residential facility, psychiatric facility or, subject to subsection (4), a penitentiary designated pursuant to subsection (5), where the offender has been detained for a period during statutory release and the Board is satisfied that the condition is reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender, or

order the statutory release of the offender without such a residence requirement; or

with respect to an order made under subparagraph (3)(a)(ii),

confirm or modify the order, or

order the statutory release of the offender without such a residence requirement.

         (4) Consent of Commissioner - A condition under subparagraph (3)(a)(ii) that an offender reside in a penitentiary designated pursuant to subsection (5) is valid only if consented to in writing by the Commissioner or a person designated, by name or by position, by the Commissioner.

         (5) Designation - The Commissioner may designate penitentiaries for the purposes of orders made under subparagraph (3)(a)(ii).

[1992, c. 20, s. 131; 1995, c. 42, s. 46; 1997, c. 17, s. 27. ]

132. (1) Relevant factors in detention reviews - For the purposes of the review and determination of the case of an offender pursuant to section 129, 130 or 131, the Service, the Commissioner or the Board, as the case may be, shall take into consideration any factor that is relevant in determining the likelihood of the commission of an offence causing the death of or serious harm to another person before the expiration of the offender's sentence according to law, including

a pattern of persistent violent behaviour established on the basis of any evidence, in particular,

the number of offences committed by the offender causing physical or psychological harm,

the seriousness of the offence for which the sentence is being served,

reliable information demonstrating that the offender has had difficulties controlling violent or sexual impulses to the point of endangering the safety of any other person,

the use of a weapon in the commission of any offence by the offender,

explicit threats of violence made by the offender,

behaviour of a brutal nature associated with the commission of any offence by the offender, and

a substantial degree of indifference on the part of the offender as to the consequences to other persons of the offender's behaviour;

medical, psychiatric or psychological evidence of such likelihood owing to a physical or mental illness or disorder of the offender;

reliable information compelling the conclusion that the offender is planning to commit an offence causing the death of or serious harm to another person before the expiration of the offender's sentence according to law; and

the availability of supervision programs that would offer adequate protection to the public from the risk the offender might other- wise present until the expiration of the offender's sentence according to law.

         (1.1) Idem - For the purposes of the review and determination of the case of an offender pursuant to section 129, 130 or 131, the Service, the Commissioner or the Board, as the case may be, shall take into consideration any factor that is relevant in determining the likelihood of the commission of a sexual offence involving a child before the expiration of the offender's sentence according to law, including

a pattern of persistent sexual behaviour involving children established on the basis of any evidence, in particular,

the number of sexual offences involving a child committed by the offender,

the seriousness of the offence for which the sentence is being served,

reliable information demonstrating that the offender has had difficulties controlling sexual impulses involving children,

behaviour of a sexual nature associated with the commission of any offence by the offender, and

a substantial degree of indifference on the part of the offender as to the consequences to other persons of the offender's behaviour;

reliable information about the offender's sexual preferences indicating that the offender is likely to commit a sexual offence involving a child before the expiration of the offender's sentence according to law;

medical, psychiatric or psychological evidence of the likelihood of the offender committing such an offence owing to a physical or mental illness or disorder of the offender;

reliable information compelling the conclusion that the offender is planning to commit such an offence; and

the availability of supervision programs that would offer adequate protection to the public from the risk the offender might otherwise present until the expiration of the offender's sentence according to law.

         (2) Idem - For the purposes of the review and determination of the case of an offender pursuant to section 129, 130 or 131, the Service, the Commissioner or the Board, as the case may be, shall take into consideration any factor that is relevant in determining the likelihood of the commission of a serious drug offence before the expiration of the offender's sentence according to law, including

a pattern of persistent involvement in drug-related crime established on the basis of any evidence, in particular,

the number of drug-related offences committed by the offender,

the seriousness of the offence for which the sentence is being served,

the type and quantity of drugs involved in any offence committed by the offender,

reliable information demonstrating that the offender remains involved in drug-related activities, and

a substantial degree of indifference on the part of the offender as to the consequences to other persons of the offender's behaviour;

medical, psychiatric or psychological evidence of such likelihood owing to a physical or mental illness or disorder of the offender;

reliable information compelling the conclusion that the offender is planning to commit a serious drug offence before the expiration of the offender's sentence according to law; and

the availability of supervision programs that would offer adequate protection to the public from the risk the offender might otherwise present until the expiration of the offender's sentence according to law.

[1992, c. 20, s. 132; 1995, c. 42, s. 47. ]

Knapp v. Canada (Attorney General) - (1997), 138 F.T.R. 201 (T.D.) affd. 229 N.R. 22 (FCA)

- Subsection (1) was found not to be unconstitutional due to being vague or overbroad, on its own or as interpreted by the appeal division of the parole board. The focus of the subsection is on the likelihood of recidivism, rather than on whether the factors as stated are present or not. Where there is evidence to support a finding of a pattern of violent behaviour, the actual number of offences is not relevant. As well, a determination under subsection (1)(d) does not require that a community assessment be done or considered.

Giroux v. Canada - (NPB) (1994), 89 F.T.R. 307 (T.D.)

- A prisoner whose case is being considered by the National Parole Board under ss129, 130 or 131 is not able to rely on the presumption of innocence while facing charges for sexual offences. The protection of society is the paramount consideration for the NPB upon review and determination of a case and that the NPB is required to consider all relevant factors.