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Withdrawal of Board Member

22.1 (1) A member of the Board shall withdraw from voting in the case of an inmate where a reasonable apprehension of bias may result from the particular circumstances of the case, including
(a)	a monetary conflict of interest with the inmate;
(b)	personal, family, social, work or business related connections with the inmate or the victim of an offence in respect of which the inmate was convicted;
(c)	prior public statements made or positions taken directly connected with the matter; and
(d)	indications of hostility or favouritism toward the inmate.
(2) The Chairman of the Board may order that a member of the Board withdraw from voting on a case where, in the Chairman's opinion, the member's participation in the review may result in a reasonable apprehension of bias. [SOR/81-487; SOR/86-917; SOR/86-919]
23. (1) The minimum number of members of the Board who must vote before parole or a temporary absence may be granted or denied is
(a)	four, where the inmate is
	(i)	sentenced to imprisonment for life as a minimum punishment,
	(ii)	serving a sentence of imprisonment for life to which a sentence of death has been commuted,
	(iii)	serving a sentence of detention in a penitentiary for an indefinite period, or
	(iv)	serving a sentence of preventive detention; and
(b)	two, where the inmate is serving a sentence other than a sentence referred to in paragraph (a).
(2) The minimum number of members of the Board who must vote in respect of a hearing held pursuant to subparagraph 15.3(5)(b)(ii) or paragraph 15.3(5)(c) or vote in respect of a case reviewed pursuant to section 15.4 or 15.5 of the Act is three.
(3) The minimum number of members of the Board who must vote in respect of a case of revocation of parole or mandatory supervision or of termination of parole or temporary absence is two. [SOR/91-563]
(4) The minimum number of members of the Board who must vote in respect of a case not provided for in subsections (1) to (3) is one.
(5) Nothing in this section or in subsection 24(2) prohibits the Chairman of the Board from directing that any number of members of the Board greater than the minimum number prescribed by this section or subsection 24(2) or (3) shall consider a case and vote. [SOR/85-236; SOR/86-917; SOR/86-919; SOR/91-563]
Judicial Consideration -
S23(1)(b)
Ford v National Parole Board - (1984),43 CR (3d) 26 (FCTD)
	- On an application for day parole where a minimum of five votes was required the applicant was heard by two members of the Board and at the conclusion of the hearing was told that his application was denied. He applied for certiorari to quash the decision and no evidence was adduced to show how the remaining complement of Board members voted or whether in fact they voted at all. Because the minimum number of members of the Board required to vote on the application was five members or a quorum of three depending upon how the vote went, and because there was no evidence indicating how these votes had been cast, if at all, the decision was held to be invalid. The Board was ordered upon receipt of a new application to conduct a new hearing at which not less than five members of the Board would be present.
S23(3)
Woodhouse v National Parole Board - Unreported, December 5, 1983, No. T-2497-83 (FCTD)
	- Where there was no evidence before the court as to the number of members who voted at the two hearings called into question on a certiorari application the court held that there was no material before it on which to consider the claim and dismissed the application.
O'Brien v National Parole Board - (1984) 2 FC 314,43 CR (3d) 10,17 CCC (3d) 163 (FCTD)
	- An application for a temporary absence is a request for the granting of a privilege and a denial of such a request does not involve a deprivation of any constitutionally enshrined right of liberty so as to bring into play s7 of the Charter and require an in-person hearing. Similarly, there is nothing in the Act or Regulations to require any hearing on such an application. However, once tl1e Board elects to embark upon a hearing then it must do so in accordance with the common law duty to act fairly. Fundamental fairness dictates that the applicant in such circumstances be afforded an in-person hearing before all members of the Board who had to vote on his application. A hearing by three members followed by a file review by a further four members in a seven vote case was held to violate fundamental fairness and the decision denying the application was quashed and a new hearing ordered before a full panel of Board members.
See also Schertow v National Parole Board -Unreported, May 18, 1984 No. T-655-84 (FCTD) to similar effect in dealing with a decision under Regulation s11.1(c) "Parole by Deportation" and MacDonald v National Parole Board [1986J 3 FC 157 (FCTD) annotated under Parole Act, s6.
S23(3)(b)
See Ford v National Parole Board, supra, s23(1)(b).
24. (1) The minimum number or affirmative votes by members of the Board required to grant, revoke or terminate parole, release on mandatory supervision or a temporary absence is
(a)	in any case referred to in paragraph 23(1)(a) or subsection 23(2) or where the Chairman of the Board has directed that a number of members of the Board greater than the minimum number prescribed by section 23 or subsection (2) shall consider a case an cast their votes, a majority of the votes of members voting; and
(b)	in any case referred to in paragraph 23(1)(b) or subsection 23(3) or (4), a unanimity of votes.
(2) Subject to subsection (4), where two members vote on a case and there is no unanimity, two members who were not members of the previous panel shall be assigned to review the case and cast their votes and thereupon the decision shall be effected by a unanimity of votes of the new members. [SOR/91-563]
(3) Subject to subsection (4), where four members vote on a case and there is no majority, four members who were not members of the previous panel shall be assigned to review the case and cast their votes and thereupon the decision shall be effected by a majority of votes of the new members. [SOR/91-563]
(4) Where, in any case, a review has originally been by way of a hearing, any further review pursuant to subsection (2) or (3) shall also be by way of a hearing. [SOR/91-563] [SOR/85-236; SOR/86-817; SOR/86-919; SOR/91-563]
Judicial Consideration -
Re Mason and The Queen - (1983), 7 CCC (3d) 141, 35 CR (3d) 393 (Ont HC)
	- This Regulation derogates from the statutory framework in the Parole Act and Regulations governing mandatory supervision and parole and, in particular, those provisions of the Regulations dealing with hearings and assistance at hearings to such an extent that it violates the principles of fundamental justice and therefore violates s7 of the Charter and is ultra vires by virtue of s52 of the Charter and of no force and effect.
	At a post-suspension hearing considering the question of revocation of mandatory supervision the two members of the Board in attendance disagreed. The Chairman of the Board assigned a further member to cast a vote following the procedure in Regulation, s24(2)(b). The deciding vote was not cast by a person who was present at the hearing. Consequently, that Board member did not hear the evidence of the prisoner and his assistant's submissions. The third member voted to revoke. The court held that the right to make submissions was a necessary element of the doctrine of natural justice. That the Regulation afforded an inmate not full but merely partial answer and defence. Here the third Board member did not see the inmate nor his assistant nor did he hear their submissions in person. He was described by the court as a "faceless and absent bureaucrat who cast his critical vote in some distant unknown place", He decided against liberty on the basis of written materials and not a personal plea. This procedure was fundamentally unjust. It was not fair and decent. It was an impersonal procedure based on a paper record of what should be an in-person hearing and not a review proceeding. A new hearing was ordered.
See O'Brien v National Parole Board (1984) 2 FC 314, 43 CR (3d) 10, 17 CCC (3d) 163 (FCTD) supra, s23(3) and s6 of the Parole Act.
See also Schertow v National Parole Board, supra and MacDonald v National Parole Board [1986] 3 FC 157 (FCTD), annotated under Parole Act, s6.
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