Robina Institute of Criminal Law and Criminal Justice

Canada’s Version of Morrissey v. Brewer: Revocation Hearing Rights on Trial

Canada’s Supreme Court will soon decide whether a parolees have a right to a hearing before their parole may be revoked, in Attorney General of Canada, Parole Board of Canada v. Benoît Way and Maxime Gariépy. 

In 1972, the U.S. Supreme Court held in Morrissey v. Brewer that “the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee and often on others. […] By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.” After Morrissey, parole revocation in the U.S. requires some “orderly process.” This includes both a preliminary hearing after arrest to determine probable cause and a final revocation hearing in which a parolee can present evidence and confront the evidence of a parole violation.

In the past, Canada’s national laws provided the right to a hearing following the suspension, cancellation, or revocation of parole or statutory release. These hearing were mandatory unless offenders waived their rights in writing or refused to attend. In 2012, however, the Parliament of Canada (operating under a conservative government) enacted the Jobs, Growth, and Long-term Prosperity Act (JGLPA). This act removed the requirement for a hearing, except in cases of parole cancellation (which is similar to parole rescission in the United States). All parole revocation hearings are now discretionary under current law.

The petitioners in the case, Benoît Way and Maxime Gariépy, were both convicted of second degree murder (in separate cases) and sentenced to life imprisonment with the possibility of parole. They filed writs of habeas corpus to challenge what they contend is an unlawful detention.

Way was granted day parole after serving six years in prison (starting in 2006). In 2013, the Parole Board of Canada learned that Way had used cocaine. Way’s case management team recommended against parole revocation, suggesting a change in parole conditions instead. Way also filed written submissions and stated that he was ready to meet the Board members if they wished. Despite these actions, the Board revoked Way’s parole in absentia.

Gariépy was granted full parole after serving seven years in prison (starting in 1990) and three years on day parole. In 2013, police responded to his apartment after a call concerning yelling and gun shots. When police arrived, neighbors could not confirm the claims that gun shots were fired. Despite this, Gariépy’s door was broken down, and police entered his apartment. He denied making noise or being involved in an argument. Later, after Gariépy attempted to obtain the identity of the police officers involved, he tore some posters from a police station wall. The police department claimed that Gariépy may have been under the influence of alcohol or drugs, and a warrant to suspend parole was filed. Gariépy cooperated with his parole agent, requested to meet with the Parole Board of Canada, and submitted to a psychiatric assessment as ordered. Nevertheless, and without the results of the assessment, the Board also revoked Gariépy’s parole in absentia.

The court in Way must now decide whether or not the 2012 revision to national parole law which eliminates mandatory revocation hearings violates rights guaranteed in Canada. The petitioners claim they have a right to a revocation hearing under Section 7 of the Canadian Charter of Rights and Freedoms. Like the Fifth Amendment of the U.S. Constitution, Section 7 has been interpreted by Canadian courts to guarantee due process of law. It reads:

“Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The Attorney General and the Parole Board of Canada argue that the 2012 legislation did not prohibit the Board from holding a revocation hearing; it merely gave the Board discretion in setting such hearings. They argue that the Board’s continued ability to hold hearings allows it to make decisions that provide Section 7 rights, thus no rights are violated.

One major difference between the U.S. Bill of Rights and the Canadian Charter of Rights and Freedoms, however, is that Section 1 of the Charter reads that the rights and freedoms set out are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Thus, any inquiry into a violation (or limitation) of Section 7 rights must begin with an analysis of whether or not that violation is justifiable under Section 1.

Under Canadian jurisprudence, if the legislation is held to violate the Charter, the government must show that there is a pressing or substantial objective met by the legislation. It must then show that the law is substantially connected to the objective, that the rights of Canadian citizens are minimally impaired, and finally that there is proportionality between the infringement of rights and the objective (in other words, that the benefits outweigh the costs).

A victory for the Canadian government in this case could highlight the differences between the rights guaranteed under the Canadian and U.S. systems. A victory for Way and Gariépy in this case, however, could guarantee parole revocation hearing rights for all Canadian parolees.

Read more about Parole Release and Revocation, here.

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