Corrections and Conditional Release Act

S.C. 1992, c. 20

Assented to 1992-06-18

An Act respecting corrections and the conditional release and detention of offenders and to establish the office of Correctional Investigator

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:


Table of Contents


SHORT TITLE

Short title

1. This Act may be cited as the Corrections and Conditional Release Act.

Judicial Consideration

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PART I
INSTITUTIONAL AND COMMUNITY CORRECTIONS

Interpretation

Definitions

2. (1) In this Part,

Commissioner means the Commissioner of Corrections appointed pursuant to subsection 6(1); (commissaire)

contraband means

  • (a) an intoxicant,
  • (b) a weapon or a component thereof, ammunition for a weapon, and anything that is designed to kill, injure or disable a person or that is altered so as to be capable of killing, injuring or disabling a person, when possessed without prior authorization,
  • (c) an explosive or a bomb or a component thereof,
  • (d) currency over any applicable prescribed limit, when possessed without prior authorization, and
  • (e) any item not described in paragraphs (a) to (d) that could jeopardize the security of a penitentiary or the safety of persons, when that item is possessed without prior authorization; (objets interdits )

day parole has the same meaning as in Part II; (semi-liberté)

inmate means

  • (a) a person who is in a penitentiary pursuant to
    • (i) a sentence, committal or transfer to penitentiary, or
    • (ii) a condition imposed by the Parole Board of Canada in connection with day parole or statutory release, or
  • (b) a person who, having been sentenced, committed or transferred to penitentiary,
    • (i) is temporarily outside penitentiary by reason of a temporary absence or work release authorized under this Act, or
    • (ii) is temporarily outside penitentiary for reasons other than a temporary absence, work release, parole or statutory release, but is under the direction or supervision of a staff member or of a person authorized by the Service; (détenu)

Version anglaise seulement

institutional head, in relation to a penitentiary, means the person who is normally in charge of the penitentiary; (Version anglaise seulement)

intoxicant means a substance that, if taken into the body, has the potential to impair or alter judgment, behaviour or the capacity to recognize reality or meet the ordinary demands of life, but does not include caffeine, nicotine or any authorized medication used in accordance with directions given by a staff member or a registered health care professional; (substance intoxicante)

long-term supervision means long-term supervision ordered under subsection 753(4), 753.01(5) or (6) or 753.1(3) or subparagraph 759(3)(a)(i) of the Criminal Code; (surveillance de longue durée)

Minister means the Minister of Public Safety and Emergency Preparedness; (ministre)

offender means

  • (a) an inmate, or
  • (b) a person who, having been sentenced, committed or transferred to penitentiary, is outside penitentiary
    • (i) by reason of parole or statutory release,
    • (ii) pursuant to an agreement referred to in subsection 81(1), or
    • (iii) pursuant to a court order; (délinquant)

parole has the same meaning as in Part II; (libération conditionnelle)

penitentiary means

  • (a) a facility of any description, including all lands connected therewith, that is operated, permanently or temporarily, by the Service for the care and custody of inmates, and
  • (b) any place declared to be a penitentiary pursuant to section 7; (pénitencier)

Version anglaise seulement

prescribed means prescribed by regulation; (Version anglaise seulement)

provincial parole board has the same meaning as in Part II; (commission provinciale)

sentence means a sentence of imprisonment and includes

Service means the Correctional Service of Canada described in section 5; (Service)

staff member means an employee of the Service; (agent)

statutory release has the same meaning as in Part II; (libération d’office)

unescorted temporary absence has the same meaning as in Part II; (permission de sortir sans escorte)

victimin respect of an offence, means an individual who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of the offence. (victime)

visitor means any person other than an inmate or a staff member. (visiteur)

working day means a day on which offices of the federal public administration are generally open in the province in question. (jour ouvrable)

Exercise of powers, etc.

(2) Except as otherwise provided by this Part or by regulations made under paragraph 96(b) ,

  • (a) powers, duties and functions that this Part assigns to the Commissioner may only be exercised or performed by the Commissioner or, where the Commissioner is absent or incapacitated or where the office is vacant, by the person acting in the place of the Commissioner; and
  • (b) powers, duties and functions that this Part assigns to the institutional head may only be exercised or performed by the institutional head or, where the institutional head is absent or incapacitated or where the office is vacant, by the person who, at the relevant time, is in charge of the penitentiary.

Acting on victim’s behalf

(3) For the purposes of this Act, any of the following individuals may act on the victim’s behalf if the victim is dead or incapable of acting on their own behalf:

  • (a) the victim’s spouse, or if the victim is dead, their spouse at the time of death;
  • (b) the individual who is or was at the time of the victim’s death, cohabiting with them in a conjugal relationship, having so cohabited for a period of at least one year;
  • (c) a relative or a dependant of the victim;
  • (d) an individual who has in law or fact custody, or is responsible for the care or support, of the victim; and
  • (e) an individual who has in law or fact custody, or is responsible for the care or support, of a dependant of the victim.

Exception

(4) For the purposes of this Act, an individual is not a victim, or entitled to act on a victim’s behalf, in relation to an offence, if the individual is the offender.

1992, c. 20, s. 2; 1995, c. 42, s. 1; 1997, c. 17, s. 11; 2000, c. 12, s. 88; 2002, c. 1, s. 171; 2004, c. 21, s. 39; 2005, c. 10, s. 34; 2008, c. 6, s. 56; 2012, c. 1, ss. 52, 160, 196; 2015, c. 13, s. 45.

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"inmate"

Dumas v. Director of Leclerc Institution (1987), 22 Admin. L.R. 205, 55 C.R. (3d) 83, 30 C.C.C. (3d) 129, [1986] 2 SCR 459, [1986] S.C.J. No.61 (S.C.C.) — In the context of parole, the continued detention of an inmate will only become unlawful if he has acquired the status of a parolee. An inmate acquires that status as of the moment the decision to grant him parole takes effect. Thus, if parole is granted effective immediately, he becomes a parolee when the decision is rendered. If, for some reason, the restriction to his liberty continues, he may then have access to habeas corpus. If parole is granted effective at some later date, then the inmate acquires the status of parolee at that date and not at the date of the decision.

Prosyk v. Canada (National Parole Board) (1993), 72 F.T.R. 219, [1993] F.C.J. No.1268 (F.C.T.D.) — S2(1) of the CCRA defines "inmate" to include a person who is in a penitentiary pursuant to a sentence to a penitentiary as well as a person who, having been sentenced to a penitentiary, is temporarily outside a penitentiary but under the direction or supervision of a staff member. Thus, when, as in this case, a person is taken to Court from a penitentiary and returned after Court, he remains an inmate.

McWhinney v. Canada (Commissioner of Corrections) (1996), 1 C.R. (5th) 116, 117 F.T.R. 81, [1996] F.C.J. No.1051 (F.C.T.D.) - On 12 October 1994, M appeared before the National Parole Board with respect to his parole status. At the hearing, the Board granted full parole to M on the condition that he reside at Gunn Centre, a half-way house. The Board also stipulated that parole would be effective when bed space became available at Gunn Centre. Subsequent to this decision and while waiting for a bed to become available at the Gunn Centre, M was asked to provide a urine sample but did not comply because he feared his sample would be tampered with and he would be denied parole. Disciplinary action ensued and M's parole was cancelled. M submitted that s40 of the CCRA regarding discipline only applied to an "inmate," and since he had been granted full parole by order of the Board on 12 October 1994, he was not an "inmate" within the meaning of subsection 2(1) of the CCRA. The court disagreed and held M to be an "inmate" when the urine sample was demanded because the conditions of his parole had not yet been met. His full parole was granted but effective, in part, only when bed space was available at Gunn Centre. The court found that the clear intention of this provision was that M was to remain an "inmate" until a bed was not only available to him but that he actually occupied it.

Savard v. Canada (National Parole Board) (1998), 132 C.C.C. (3d) 422, [1998] A.Q. No.3789 (Que.C.A.) — Where an applicant sought the issuance of writ of habeas corpus with certiorari in aid in superior court, the Crown argued that NPB decision in question could not constitute deprivation of liberty because it rendered the appellant no longer an "inmate" within the meaning of the Act - s2(1) definition of "inmate." According to the Crown, the NPB decision transformed his status from an "inmate" into that of a "day parolee". This point of view did not concord, in the court's view, with the generous and flexible interpretation that must be given to the rules applicable to the habeas corpus remedy. The appellant is perhaps no longer an "inmate" within the meaning of the Act but he remains so under the meaning that this word must have in relation to habeas corpus matters. He is confined to the halfway house, except to carry out the community work that has been imposed on him. His movements are not absolutely free. He is in captivity, always in the hands of the State. He is in custody. The right to habeas corpus does not depend on the definition that Parliament has given to the word "inmate" (« détenu »).

R v. Wood (1999), 139 C.C.C. (3d) 468, 180 N.S.R. (2d) 110, [1999] N.S.J. No.347 (N.S.C.A.) [application for review dismissed 139 C.C.C. (3d) 475 (N.S.C.A.)] — The statutory conditions of day parole require the parolee to return to a penitentiary, a community-based residential facility or a provincial correctional facility each night. The parolee is deemed to be serving the sentence of imprisonment while on day parole. That constitutes being in custody for the purposes of section 679 of the Criminal Code, which provides that a judge of the court of appeal may release an appellant from custody pending the determination of his appeal.

R v. Comsa (2000), 2000 ABQB 854, 282 A.R. 108, [2000] A.J. No.1414 (Alta.Q.B.) — C was serving a six year sentence which commenced on January 6, 1997. He was released on full parole on April 10, 2000 from Grierson Centre in Edmonton. On June 15, 2000, C was arrested on new and separate charges and taken into custody at the Edmonton Remand Centre. Thereafter, on June 16, 2000, a Warrant of Apprehension and Suspension of Full Parole was issued. On July 12, 2000, C was transferred from the Edmonton Remand Centre to Bowden Institution in Innisfail, Alberta. In this case, therefore, C was admitted to Bowden Institution on July 12, 2000, and in the court's view, it could not be argued on the evidence before it that C was an inmate of Bowden Institution during the period prior to his admission to that penitentiary and temporarily outside the penitentiary within the meaning of s2(1) of the Act. The court noted that C had been released on full parole from Grierson Centre in Edmonton.

"intoxicant"

Barnaby v. Donnacona Correctional Institution (1995), 105 F.T.R. 64, [1995] F.C.J. No.1541 (F.C.T.D.) — B was approaching the last few minutes of a 72-hour conjugal visit in one of the trailers reserved for that purpose, when he suffered a sudden fit or seizure. He was found lying on his back, seemingly choking and experiencing spasms of his limbs. Correctional officers were called, B was brought to his feet and then escorted to the infirmary, where he was examined by the duty nurse. The latter noted the B's aggressiveness, his struggle with the guards, his slurred speech, the redness of his eyes, his hesitant steps, all of which she found symptomatic of the effects of an intoxicant upon the body. The nurse, on the medical history of the applicant, could find no record of illness, no history of epileptic seizures, no prescribing of any medication which might create an abnormal state. The duty nurse, without conducting any blood or urine tests, then concluded that the B's abnormal state could not have been caused by anything other than an intoxicant. Despite the acknowledgement that the nurse's evidence was merely circumstantial, the court nevertheless held it to be sufficient to meet the standard of proof and dismissed an application for judicial review of the decision rendered by the disciplinary court finding B guilty of a breach of section 40(k) of the CCRA, which makes it an offence for an inmate to take an intoxicant into his or her body.

Mineau v. Port-Cartier Penitentiary (1997), 129 F.T.R. 189, [1997] F.C.J. No.459 (F.C.T.D.) — The court set aside a disciplinary conviction where an inmate was charged with the possession of an intoxicant. It is not sufficient for an officer to testify as to the texture and the odour given off by the product in order to establish that the product had the potential to impair or alter judgment, behaviour or the capacity to recognize reality, and so on, on the part of the person in possession of it. The officer's experience in this area and personal knowledge of alcohol could not substitute for scientific, technical or specialized testimony.

"penitentiary"

R v. Knoblauch (2000), 149 C.C.C. (3d) 1, 37 C.R. (5th) 349, 192 D.L.R. (4th) 193, [2000] 2 S.C.R. 780, [2000] S.C.J. No.59 (S.C.C.) — Under the CCRA, a "penitentiary" is a facility operated for the care and control of inmates by the Correctional Service of Canada and may include any prison, or any hospital, so designated by order of the Commissioner and any other place so designated by the Governor in Council (s2(1)). Under the Act, temporary absences may be authorized (s17). This makes abundantly clear that incarceration or imprisonment as a form of punishment is a regime that may not require a total restriction on freedom of movement.

"victim"

Wright v. Canada (Attorney General) [1999] F.C.J. No.1304 (F.C.T.D.) — Correctional officers prepared a report that referred to W's ex-fiancée as his victim. W contested the validity of that statement. While imprisoned, a marriage was planned and then cancelled as a result of his initiative. The ex-fiancée subsequently complained to the RCMP that the applicant had threatened her and that she feared for her safety. W alleges that these complaints were vindictive and were an attempt to make life difficult for him after he broke off their relationship. The ex-fiancée never filed a written complaint with the police, and subsequently refused to co-operate with the police on any investigation of her oral complaint against W. Correctional Services, however, had in its possession copies of the letters that formed the basis of the ex-fiancée's assertions. W stated that these should be placed in the context of the letters he received from her, and that the letters contain mutually explicit sexual material. The court stated that the term "victim" is defined in section 2 of the CCRA as a person who has suffered harm as a result of the commission of an offence, and intimated that the ex-fiancée was most likely not a victim as defined in the Act.

Zarzour v. Canada (2000), 153 C.C.C. (3d) 284, 196 F.T.R. 320, 268 N.R. 235 [2000] F.C.J. No.2070 (F.C.A.) — An inmate was awarded damages by the Trial Division where the CSC and the National Parole Board unlawfully provided information about his file to his ex-wife. The Trial Division held that she was improperly classified as a "victim" vis-à-vis the CCRA, namely "a person to whom harm was done or who suffered physical or emotional damage as a result of the commission of an offence." She was thus not entitled under sections 26 and 142 of the CCRA to the information in question. The Court of Appeal overturned the decision on the grounds that the ex-wife was entitled to the information she received pursuant to section 144. The Court of Appeal, however, did not directly contradict the Trial Division finding that the ex-wife was not a "victim" as defined by the CCRA.

"visitor"

Laliberté v. Canada (Correctional Service) (2000), 181 F.T.R. 276, [2000] F.C.J. No.548 (F.C.T.D.) — L made an application to participate in the private family visiting program so he could have the opportunity of having intimate relations with M. Both M and L were inmates in the same penitentiary. The court upheld the decision of the CSC to deny the request. In that decision the Assistant Commissioner arrived at the conclusion that the plaintiff could not participate in the private family visiting program as provided in Commissioner's Directive No. 770. The court found that although the meaning of the word "visiting" has not been given, Parliament in s2 has defined the meaning of the word "visitor" as excluding other inmates and staff members. Since this definition is included in the CCRA it follows, by legislative hierarchy, that the same definition applies to regulations adopted under the power conferred through s96 of the Act as well as to administrative directives adopted for the internal administration of penitentiaries. The court held that it thus inevitably followed that M could not be considered a visitor within the meaning of the Act, in view of his situation as an inmate. For reasons of internal consistency, M also could not be considered a visitor within the meaning of the Directive.

Mennes v. McClung (2001), 2001 FCT 1349, [2001] F.C.J. No.1830 (F.C.T.D.) — It was held that the Commissioner of Corrections had the authority to, and appropriately did, delegate to the Acting Assistant Commissioner the determination of the outcome of an inmate's grievance at the Third level. Sections 75-82 of the Regulations provide for the grievance process and there is clearly no requirement under the Act or the Regulations for the Commissioner of Corrections to individually or directly review complaints at the Third level appeal or at any other level. In addition, it would be impractical for the Commissioner of Corrections to have to review all the grievances made by every inmate in the country, at each level of appeal. The ultimate solution to this question is found in subsection 2(2) of the Act - the French version of this provision being more instructive than the English version.

Application to persons subject to long-term supervision order

2.1 A person who is required to be supervised by a long-term supervision order is deemed to be an offender for the purposes of this Part, and sections 3, 4, 23 to 27, 55 and 56, subsections 57(2) and 66(3), sections 68, 69, 76, 77 and 79 to 82, paragraph 87(b) and sections 90 and 91 apply, with such modifications as the circumstances require, to the person and to the long-term supervision of that person.

1997, c. 17, s. 12.

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Purpose and Principles

Purpose of correctional system

3. The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by

  • (a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and
  • (b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.

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Paramount consideration

3.1 The protection of society is the paramount consideration for the Service in the corrections process.

2012, c. 1, s. 54.

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Principles that guide Service

4. The principles that guide the Service in achieving the purpose referred to in section 3 are as follows:

  • (a) the sentence is carried out having regard to all relevant available information, including the stated reasons and recommendations of the sentencing judge, the nature and gravity of the offence, the degree of responsibility of the offender, information from the trial or sentencing process, the release policies of and comments from the Parole Board of Canada and information obtained from victims, offenders and other components of the criminal justice system;
  • (b) the Service enhances its effectiveness and openness through the timely exchange of relevant information with victims, offenders and other components of the criminal justice system and through communication about its correctional policies and programs to victims, offenders and the public;
  • (c) the Service uses measures that are consistent with the protection of society, staff members and offenders and that are limited to only what is necessary and proportionate to attain the purposes of this Act;
  • (d) offenders retain the rights of all members of society except those that are, as a consequence of the sentence, lawfully and necessarily removed or restricted;
  • (e) the Service facilitates the involvement of members of the public in matters relating to the operations of the Service;
  • (f) correctional decisions are made in a forthright and fair manner, with access by the offender to an effective grievance procedure;
  • (g) correctional policies, programs and practices respect gender, ethnic, cultural and linguistic differences and are responsive to the special needs of women, aboriginal peoples, persons requiring mental health care and other groups;
  • (h) offenders are expected to obey penitentiary rules and conditions governing temporary absences, work release, parole, statutory release and long-term supervision and to actively participate in meeting the objectives of their correctional plans, including by participating in programs designed to promote their rehabilitation and reintegration; and
  • (i) staff members are properly selected and trained and are given
    • (i) appropriate career development opportunities,
    • (ii) good working conditions, including a workplace environment that is free of practices that undermine a person’s sense of personal dignity, and
    • (iii) opportunities to participate in the development of correctional policies and programs.

1992, c. 20, s. 4; 1995, c. 42, s. 2(F); 2012, c. 1, ss. 54, 160.

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Correctional Service of Canada

Correctional Service of Canada

5. There shall continue to be a correctional service in and for Canada, to be known as the Correctional Service of Canada, which shall be responsible for

  • (a) the care and custody of inmates;
  • (b) the provision of programs that contribute to the rehabilitation of offenders and to their successful reintegration into the community;
  • (c) the preparation of inmates for release;
  • (d) parole, statutory release supervision and long-term supervision of offenders; and
  • (e) maintaining a program of public education about the operations of the Service.

1992, c. 20, s. 5; 1997, c. 17, s. 13.

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Fieldhouse v. Canada (1994), 91 C.C.C. (3d) 385, 33 C.R. (4th) 346, [1994] B.C.J. No.1807 (B.C.S.C.) — It must also be emphasized that, pursuant to s5(a) of the Act, the Correctional Service of Canada "shall" be responsible for "the care and custody of inmates". That provision not only imposes a duty on prison administrators to both know their inmates and to maintain a milieu in which those inmates can safely serve their sentences but also, in the court’s view, justifies the "zero tolerance" approach to drug use by inmates adopted by the warden, including the implementation of a random urinalysis program.

Sauvé v. Canada (Chief Electoral Officer) (1995), 132 D.L.R. (4th) 136, 106 F.T.R. 241, [1996] 1 F.C. 857, [1995] F.C.J. No.1735 (F.C.T.D.) — These were actions brought by inmates or former inmates of correctional institutions, challenging the constitutionality of paragraph 51(e) of the Canada Elections Act. In May 1993, the Supreme Court of Canada struck down the previous version of that provision. The new provision prohibited all prisoners serving a sentence of two years or more in a correctional institution from voting at a federal election. The court held that paragraph 51(e) infringed section 3 of the Charter and was not justified under section 1. Referring to section s5(b) of the CCRA, the court was of the opinion that clearly, corrections policy emphasizes the rehabilitation of the offender, and his reintegration into the community. While the defendants argued that disenfranchisement can contribute to rehabilitation, the court preferred the plaintiffs' evidence that suggested that paragraph 51(e) of the CEA hindered the rehabilitation of offenders and their successful reintegration into the community. The provision only served to further alienate prisoners from the community to which they must return, and in which their families live. Accordingly, the retributive effects of paragraph 51(e) are deleterious in that they are contrary to the purpose and principles contained in the CCRA.

Doran v. Canada (Correctional Services) (1996), 108 F.T.R. 93, [1996] F.C.J. No.304 (F.C.T.D.) — The CSC made a decision to deduct amounts for room and board from income paid to the applicant inmates from non-Treasury Board sources. The two inmates were each employed by an outside employer on a work release arrangement. The CSC urged that the Commissioner was authorized to make room and board deductions pursuant to sections 3, 4 and 5 and subsection 18(3) of the Act. In the court’s view, these provisions did not provide that authority. At the time of the hearing of this case, the express provisions of s78 and paragraph 96(z.2), in the court’s opinion, clearly indicated that Parliament intended to grant the Commissioner the authority to make deductions for room and board only where an inmate receives his or her pay as authorized by the Commissioner at rates approved by the Treasury Board. The Commissioner was not expressly authorized to make deductions where inmates received payments from sources other than those described in subsection 78(1). Here, the Act expressly permitted deductions from certain types of payments (i.e., those covered by subsection 78(1)). By implication, deductions from payments not covered by subsection 78(1) were not permitted.

R v. Dupont (1998), 129 C.C.C. (3d) 77, 20 C.R. (5th) 392, 165 D.L.R. (4th) 512, [1998] A.Q. No.2270 (Que.C.A.) — Although a CSC psychologist's mandate fell within the missions of the Correctional Services and the National Parole Board in relation to inmates, the accused inmate’s communications with the psychologist did take place in the more general context of a psychologist-patient relationship. However, although the accused inmate disclosed information to the psychologist in confidence that it would not be disclosed, the communications did not meet the criteria set out to confer on the communication a privilege. The psychologist was working for the Correctional Service in the context of a treatment offered to the accused inmate with a view to his release. Correctional Services is required to give to the National Parole Board the relevant information that it has. The psychologist could not therefore promise to keep confidential the information that the appellant would communicate to her, and which was relevant to the decision on his release. From this perspective, it is not possible to find that the confidential nature of the communication was essential to the full and satisfactory maintenance of the relation between the parties. In fact, confidentiality is foreign to the relation that an inmate has with Correctional Services (and its agents) in the context of sections 5 and 25 of the relevant statute.

Commissioner

6.(1) The Governor in Council may appoint a person to be known as the Commissioner of Corrections who, under the direction of the Minister, has the control and management of the Service and all matters connected with the Service.

National headquarters

(2) The national headquarters of the Service and the offices of the Commissioner shall be in the National Capital Region described in the schedule to the National Capital Act.

Regional headquarters

(3)The Commissioner may establish regional headquarters of the Service.

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Penitentiaries

7. (1) Subject to subsection (3), the Commissioner may, by order, declare any prison as defined in the Prisons and Reformatories Act, or any hospital, to be a penitentiary in respect of any person or class of persons.

Idem

(2) Subject to subsection (3), the Governor in Council may, by order, declare any place to be a penitentiary.

Provincial approval

(3) No prison, hospital or place administered or supervised under the authority of an Act of the legislature of a province may be declared a penitentiary under subsection (1) or (2) without the approval of an officer designated by the lieutenant governor of that province.

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Murray v. Canada (Correctional Service) (1995), 101 F.T.R. 84, [1995] F.C.J. No.1225 (F.C.T.D.) — Where an inmate submitted that neither the Act nor the Regulations give authority for the construction and habitation of institutions operating at a higher security level than maximum-security institutions, the court asserted that the new legislation did not allow him to question the legality of the existence of special handling units. Section 18 of the Regulations and section 30 of the Act provide a scale of levels of security by which an inmate should be classified. This security classification pertains to the individual inmate and does not claim to describe the levels of security attributed to a particular penitentiary nor does it provide any authority for the construction of any institution, be it maximum, medium or minimum. In the final analysis, nothing in the legislation precluded the existence or operation of a SHU.

Lands constituting penitentiary

8. In any proceedings before a court in Canada in which a question arises concerning the location or description of lands alleged to constitute a penitentiary, a certificate purporting to be signed by the Commissioner, setting out the location or description of those lands as constituting a penitentiary, is admissible in evidence and, in the absence of any evidence to the contrary, is proof that the lands as located or described in the certificate constitute a penitentiary.

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Lawful custody

9. For greater certainty, a person who is an inmate by virtue of subparagraph (b)(ii) of the definition “inmate” in section 2 shall be deemed to be in the lawful custody of the Service.

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Peace officer status

10. The Commissioner may in writing designate any staff member, either by name or by class, to be a peace officer, and a staff member so designated has all the powers, authority, protection and privileges that a peace officer has by law in respect of

  • (a) an offender subject to a warrant or to an order for long-term supervision; and
  • (b) any person, while the person is in a penitentiary.

1992, c. 20, s. 10; 1995, c. 42, s. 3; 1997, c. 17, s. 14.

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Carlson v. Canada [1998] F.C.J. No.733 (F.C.T.D.), 1998 CanLII 8109 (F.C.) — In this action, the plaintiff inmate argued that he suffered injury during a forced extraction from his cell. Referring to s10 of the CCRA, the court asserted that Commissioner's Directive 003 defines as peace officers "Members employed in an penitentiary other than a Community Correctional Centre," and on that basis, concluded that the officers involved in the cell extraction were peace officers within the meaning of s25 of the Criminal Code.

Reception of Inmates

General

11. A person who is sentenced, committed or transferred to penitentiary may be received into any penitentiary, and any designation of a particular penitentiary in the warrant of committal is of no force or effect.

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Recommitment to custody

11.1 Where a person who is sentenced, committed or transferred to penitentiary is at large without lawful authority before the expiration of the sentence according to law and where no alternative means of arrest are available, the institutional head may, by warrant, authorize the apprehension and recommitment of the person to custody in a penitentiary.

1995, c. 42, s. 4.

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Fifteen day delay

12. In order to better enable a person who has been sentenced to penitentiary or who is required by law to be transferred to penitentiary to file an appeal or attend to personal affairs, such a person shall not be received in penitentiary until the expiration of fifteen days after the day on which the person was sentenced, unless the person agrees to be transferred to a penitentiary before the expiration of those fifteen days.

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Medical certificate

13. The institutional head may refuse to receive a person referred to in section 12 into the penitentiary if there is not a certificate signed by a registered health care professional setting out available health information and stating whether or not the person appears to be suffering from a dangerous, infectious or contagious disease.

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Confinement in provincial facility

14. (1) A person who, by virtue of section 12 or 13, is not received into a penitentiary shall be confined in a provincial correctional facility.

Idem

(2) The person in charge of the provincial correctional facility to whom a person referred to in subsection (1) is delivered shall, on being presented with

  • (a) the warrant of committal to penitentiary, or
  • (b) a copy of the warrant of committal certified by any judge of a superior or provincial court, by any justice of the peace, or by the clerk of the court in which the person was convicted,

confine the person in the provincial correctional facility until the person is transferred to penitentiary or released from custody in accordance with law.

1992, c. 20, s. 14; 1995, c. 42, s. 5.

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Newfoundland and Labrador

15. (1) Notwithstanding any requirement in the Criminal Code or under the Youth Criminal Justice Act that a person be sentenced, committed or transferred to penitentiary, such a person in the Province of Newfoundland and Labrador shall not be received in a penitentiary without the approval of an officer designated by the Lieutenant Governor of Newfoundland and Labrador.

Idem

(2) A person who, pursuant to subsection (1), is not received in a penitentiary shall be confined in the provincial correctional facility in Newfoundland and Labrador known as Her Majesty’s Penitentiary, and is subject to all the statutes, regulations and rules applicable in that facility.

Agreement re cost

(3) The Minister may, with the approval of the Governor in Council, enter into an agreement with the Province of Newfoundland and Labrador providing for the payment to the Province of the cost of maintaining persons who are confined pursuant to subsection (2).

1992, c. 20, s. 15; 2002, c. 1, s. 172; 2015, c. 3, s. 172.

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Morley v. Director of Stony Mountain Institution (1981), 61 C.C.C. (2d) 190, 22 C.R. (3d) 331, 13 Man.R. (2d) 391, [1981] M.J. No.34 (Man.C.A.) — Where an accused escaped from a penitentiary and eventually was apprehended in the United States, he was not entitled to credit against his sentence for time spent in custody in United States while awaiting extradition.

R v. Dozois (1981), 61 C.C.C. (2d) 171, 22 C.R. (3d) 213 (Ont.C.A.) — The court agreed that the statutes dealing with the imprisonment of convicted offenders set out exhaustively all the instances in which an offender is deemed to be serving a sentence although he or she is not actually residing in the penitentiary. Thus, time spent by an accused in custody in a foreign jurisdiction by reason of offences committed by him in that jurisdiction while he was unlawfully at large from a Canadian penitentiary do not count against the unserved portion of the sentence in Canada notwithstanding the accused is later transferred to Canada to continue serving his sentence pursuant to the Transfer of Offenders Act. At common law, the time during which an escaped prisoner was unlawfully at large does not count as part of the service of the term of imprisonment imposed upon him.

Leschenko v. Ontario (Attorney General) (1983), 1 C.C.C. (3d) 522, 44 N.R. 297, [1983] 1 F.C. 625 (F.C.A.) — Time spent by an accused in custody in the United States by reason of offences committed by him in that jurisdiction while he was unlawfully at large from a Canadian penitentiary does not count against the unserved portion of the sentence in Canada notwithstanding the accused was later transferred to Canada to continue serving his sentence pursuant to the Transfer of Offenders Act. At common law the time during which an escaped prisoner is unlawfully at large does not count as part of the service of the term of imprisonment imposed upon him, and no statutory provisions had the effect of making time spent by the accused in custody in the United States count against his Canadian sentence.

Dempsey v. Canada (Attorney General) (1986), 25 C.C.C. (3d) 193, 51 C.R. (3d) 248, [1986] 3 F.C. 129 (F.C.A.) — An inmate in a penitentiary serving a sentence under the Criminal Code is entitled to have unexecuted warrants of committal issued under provincial law received and duly executed by the CSC. This entails that such an inmate has the right to serve within the penitentiary the sentence imposed for provincial offences. However, the sentence for provincial offences must be served in accordance with provincial law. The decision of whether the provincial sentence is to be served consecutive to, or concurrent with, the penitentiary sentence falls exclusively within provincial jurisdiction.

Re McClarty (1990), 58 C.C.C. (3d) 211, 112 N.R. 67, [1990] F.C.J. No.613 (F.C.A.) — Time spent in custody in the United States serving a prison term there is not time "in custody" for the purposes of the Parole Act just as time serving a foreign sentence does not for that reason alone count as time served on an uncompleted Canadian sentence.

R v. Daniels (1991), 65 C.C.C. (3d) 366, 6 C.R. (4th) 375, 93 Sask.R. 144, [1991] S.J. No.254 (Sask.C.A.) — The respondent D was a native woman from Saskatchewan who had been convicted of second-degree murder. The Prison for Women at Kingston, Ontario, was the only penitentiary for women in Canada, although plans to build regional facilities had been announced. Under s731 of the Criminal Code D's sentence must have been served in a penitentiary. Accordingly, although s15 of the Penitentiary Act gave the Commissioner of Corrections a discretion as to which penitentiary in which any convict was to serve her sentence, D, almost certainly, was to be sent to Kingston. She was not eligible for the program under which female convicts serving penitentiary terms of up to six years may be directed by the Commissioner to serve at least part of the term in a provincial prison in Prince Albert. Such arrangements were authorized by s5 of the Prisons and Reformatories Act. D argued, and the trial judge found, that since the Kingston institution was the only penitentiary for women in Canada, the effect of s731 of the Criminal Code and s15 of the Penitentiary Act was that D and other native women from the prairie region would end up in Kingston, amounting to violations of sections 12 and 15(1) of the Charter. In allowing the appeal, the appeals court asserted that even assuming that the Commissioner of Corrections had no choice under s15 but to commit D to Kingston, that lack of choice was not imposed on him by s731 and/or s15, but by his failure to provide other facilities, incarceration in which would not result in alleged Charter violations. The very nature of the judges' order of committal, that D not be incarcerated in Kingston, confirms this view, for it assumed that the Commissioner has the power to make other arrangements. Accordingly, the Charter violation, if there was one, stemmed not from sections 731 and 15, but from an anticipated act or an actual default by the Commissioner of Corrections, that is, anticipated committal of D to Kingston, or more correctly, failure to provide penitentiary facilities which meet the requirements of the Charter. These things are independent of the sentencing process in the criminal trial. The trial judge's function ended with imposition of a sentence in a penitentiary - under the Criminal Code, she had no right to designate which penitentiary in which the sentence was to be served.

Correctional Plans

Objectives for offender’s behaviour

15.1 (1) The institutional head shall cause a correctional plan to be developed in consultation with the offender as soon as practicable after their reception in a penitentiary. The plan is to contain, among others, the following:

  • (a) the level of intervention in respect of the offender’s needs; and
  • (b) objectives for
    • (i) the offender’s behaviour, including
      • (A) to conduct themselves in a manner that demonstrates respect for other persons and property,
      • (B) to obey penitentiary rules and respect the conditions governing their conditional release, if any,
    • (ii) their participation in programs, and
    • (iii) the meeting of their court-ordered obligations, including restitution to victims or child support.

Maintenance of plan

(2) The plan is to be maintained in consultation with the offender in order to ensure that they receive the most effective programs at the appropriate time in their sentence to rehabilitate them and prepare them for reintegration into the community, on release, as a law-abiding citizen.

Progress towards meeting objectives

(3) In making decisions on program selection for — or the transfer or conditional release of — an inmate, the Service shall take into account the offender’s progress towards meeting the objectives of their correctional plan.

2012, c. 1, s. 55.

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Incentive measures

15.2 The Commissioner may provide offenders with incentives to encourage them to make progress towards meeting the objectives of their correctional plans.

2012, c. 1, s. 55.

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Exchange of Service Agreements

Agreements with provinces

16. (1) The Minister may, with the approval of the Governor in Council, enter into an agreement with the government of a province for

  • (a) the confinement in provincial correctional facilities or hospitals in that province of persons sentenced, committed or transferred to penitentiary; and
  • (b) the confinement in penitentiary of persons sentenced or committed to imprisonment for less than two years for offences under any Act of Parliament or any regulations made thereunder.

Effect of confinement

(2) Subject to subsection (3), a person who is confined in a penitentiary pursuant to an agreement entered into under paragraph (1)(b) is, despite section 743.1 of the Criminal Code, subject to all the statutes, regulations and rules applicable in the penitentiary in which the person is confined.

Release date

(3) The release date of an offender who is transferred to penitentiary pursuant to an agreement entered into under paragraph (1)(b) shall be determined by crediting against the sentence

  • (a) any remission, statutory or earned, standing to the offender’s credit on the day of the transfer; and
  • (b) the maximum remission that could have been earned on the balance of the sentence pursuant to the Prisons and Reformatories Act.

1992, c. 20, s. 16; 1995, c. 22, s. 13, c. 42, s. 6; 2012, c. 1, s. 56.

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R v. Anaskan (1977), 34 C.C.C. (2d) 361, 76 D.L.R. (3d) 351, 15 O.R. (2d) 515 (Ont.C.A.) — Pursuant to an Order in Council made under s15 of the Penitentiary Act, the Solicitor-General was authorized to enter into "an agreement with the government of any province for the confinement in penitentiaries" of prisoners serving terms of less than two years in provincial institutions "in any instance when it appears to the Solicitor- General that such confinement in a penitentiary or other institution is desirable". The accused, sentenced to a term of less than two years in Saskatchewan, was transferred from the provincial institution to the federal Penitentiary for Women in Ontario pursuant to an agreement entered into by Saskatchewan and the federal Government. A habeas corpus application was filed where the inmate argued that the Solicitor-General or his Deputy must personally consider each transfer, which was not done in this case, and that s15(1) of the Penitentiary Act authorizing such transfer agreements could not qualify the direction in that s743.1 of the Criminal Code provided that a person not serving a sentence of two years or more shall be sentenced to imprisonment in a place of confinement within the Province other than a penitentiary. Neither s15(1) of the Penitentiary Act nor the Order in Council required that the Solicitor-General or the Deputy Solicitor-General personally consider each individual transfer to a federal institution. The use of the words "an agreement... for the confinement of persons" clearly contemplates a general agreement concerning all such transfers, and by necessary implication allows for the determination and administration of the transfers being carried out by proper departmental officers. With respect to s743.1 of the Criminal Code, it would appear that s15 of the Penitentiary Act was enacted in the light of s743.11 and covered a specific exception to the general words of that section. Accordingly, the accused could be validly transferred pursuant to an agreement under s15 despite s743.1. In this case, the inmate was placed in a penitentiary pursuant to a transfer initiated by provincial civil servants in Saskatchewan. As a result, it was held that an Ontario Court has no jurisdiction to quash order or determination of a Saskatchewan civil servant made by virtue of his office established by a Saskatchewan statute.

Morin v. Director of Corrections for Saskatchewan (1982), 70 C.C.C. (2d) 230, 17 Sask.R. 333 (Sask.C.A.) — The transfer of an inmate from a provincial reformatory to a federal penitentiary is sufficiently akin to disciplinary proceedings to require fairness on the part of the authorities. In the Province of Saskatchewan guidelines had been established for the transfer of inmates between the provincial facility and federal penitentiary that included a procedure for an appeal to the Director of Correctional Centres prior to an involuntary transfer. Thus, failure on the part of the custodial authorities to notify an inmate of the intended transfer had the effect of depriving him of a right of appeal and to present his grounds of appeal, and amounted to unfairness. Habeas corpus with certiorari in aid is available to challenge a decision transferring an inmate from a provincial reformatory to a penitentiary.

Durack v. Saskatchewan Penitentiary (1990), 9 W.C.B. (2d) 334 (Sask.Q.B.) — An inmate sought to quash the decision of a provincial correctional centre revoking an agreement between the federal and provincial government to hold him in the provincial institution, despite the fact that he would otherwise be subject to a sentence in a penitentiary. Moving the inmate from the general population of the provincial institution to the general population of the penitentiary did not amount to a deprivation of his "liberty" within the meaning of s7 of the Charter of Rights.

Escorted Temporary Absences

Temporary absences may be authorized

17. (1) The institutional head may, subject to section 746.1 of the Criminal Code, subsection 140.3(2) of the National Defence Act and subsection 15(2) of the Crimes Against Humanity and War Crimes Act, authorize the temporary absence of an inmate, other than an inmate described in subsection 17.1(1), if the inmate is escorted by a staff member or other person authorized by the institutional head and, in the opinion of the institutional head,

  • (a) the inmate will not, by reoffending, present an undue risk to society during an absence authorized under this section;
  • (b) it is desirable for the inmate to be absent from the penitentiary for medical or administrative reasons, community service, family contact, including parental responsibilities, personal development for rehabilitative purposes or compassionate reasons;
  • (c) the inmate’s behaviour while under sentence does not preclude authorizing the absence; and
  • (d) a structured plan for the absence has been prepared.

The temporary absence may be for an unlimited period if it is authorized for medical reasons or for a period of not more than five days or, with the Commissioner’s approval, for a period of more than five days but not more than 15 days if it is authorized for reasons other than medical reasons.

Conditions

(2) The institutional head may impose, in relation to a temporary absence, any conditions that the institutional head considers reasonable and necessary in order to protect society.

Cancellation

(3) The institutional head may cancel a temporary absence either before or after its commencement.

Reasons to be given

(4) The institutional head shall give the inmate written reasons for the authorizing, refusal or cancellation of a temporary absence.

Travel time

(5) In addition to the period authorized for the purposes of a temporary absence, an inmate may be granted the time necessary to travel to and from the place where the absence is authorized to be spent.

Delegation to provincial hospital

(6) Where, pursuant to an agreement under paragraph 16(1)(a) , an inmate has been admitted to a hospital operated by a provincial government in which the liberty of patients is normally subject to restrictions, the institutional head may confer on the person in charge of the hospital, for such period and subject to such conditions as the institutional head specifies, any of the institutional head’s powers under this section in relation to that inmate.

1992, c. 20, s. 17; 1995, c. 22, s. 13, c. 42, s. 7(F); 1998, c. 35, s. 108; 2000, c. 24, s. 34; 2013, c. 24, s. 127; 2014, c. 36, s. 1.

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Corresponding Regulations: Sections 9-10 Escorted Temporary Absences and Work Releases

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Crowe v. Canada (1993), 62 F.T.R. 177, [1993] F.C.J. No. 424 (F.C.T.D.) — This was an action filed against the government by an Aboriginal inmate who was refused an escorted temporary absence to attend his son's funeral held in the Piapot Reserve. The officer in charge of a penitentiary is authorized, where in his or her opinion it is necessary or desirable that an inmate be absent with escort for humanitarian reasons, to allow an absence from the institution for a period not exceeding five days. The granting of an ETA for humanitarian reasons is within the discretion of the officer in charge and as such, is reviewable on the basis of insuring that the officer in charge exercises his discretion fairly and in an even handed manner, taking into account all relevant factors. However, the action before the court was not an application for judicial review but an action for a declaration that section 28 of the Penitentiary Act was being applied, in the case of Native and Aboriginal inmates, in an unequal manner having regard to their race and therefore in a manner inconsistent with section 15 of the Charter. The court ruled that no case had been made to establish race as a basis for the refusal to grant an ETA. Systemic discrimination of the plaintiff was not at all evident, given the improvements made and anticipated. Even the legislation had been amended to give better direction to officials about Parliament's intention. Accordingly, the action was dismissed.

Jesso v. Canada (1993), 62 F.T.R. 128, [1993] F.C.J. No.239 (F.C.T.D.) — The administrative decision of the prison authorities to revoke the wall clearance of an inmate was not made unfairly or arbitrarily, but rather in accordance with the clear and unequivocal provisions of Standing Order 562-3 issued for the effective internal management of the institution. Following a general institutional review of wall clearances, the privileges of J and another inmate were revoked temporarily due to non-compliance with Standing Order 562-3. J complained internally concerning this revocation and subsequently received written reasons from a senior official in CSC and from the Warden of Kingston Penitentiary confirming that his status as a detained inmate rendered him ineligible for wall clearance. Nothing in the facts of this case reveals any unfairness or arbitrariness in the decision revoking the wall clearance privileges of J. The application for judicial review was dismissed.

Crook v. Canada (National Parole Board) (1995), 102 F.T.R. 62, [1995] F.C.J. No.1335 (F.C.T.D.) — An inmate challenged the National Parole Board’s decision to refuse the approval of two escorted temporary absences, despite the fact that the inmate's case management supervisor and the warden both recommended that the ETAs be granted. The inmate had already successfully completed an ETA. The basis of the Board’s decision was that the requested ETAs set a pattern which cumulatively constituted a program not contemplated by legislation or board policy so far in advance of eligibility for day parole or full parole – the inmate’s eligibility for full parole was still 10 years away. In the inmate's view the statute did not directly deny the application and there was no Board policy statement that so provides. While the court agreed with that, it was not persuaded that the Board is precluded, in the absence of criteria set by s747 of the Criminal Code, from considering its general policies and applying those in assessing an application for an ETA submitted for its approval under the Code. By considering those policies the Board did not fetter its discretion or err in law in the exercise of its jurisdiction. The application was dismissed.

Govereau v. Canada (1998), 149 F.T.R. 302, [1998] F.C.J. No.682 (F.C.T.D.) — An inmate was refused an escorted temporary absence to visit his seriously ill wife, and denied an alternative request asking prison authorities to arrange a stand-by supply of oxygen in the event his wife's personal supply should run out during her visit to the prison. As a result, the inmate filed an action against the government claiming that this denial of a means to visit constituted a breach of Charter rights, the CCRA and fair play. As a plaintiff, the inmate sought damages as a deterrent, together with declaratory relief, which would allow him to obtain temporary escorted passes in order to visit his wife in an effort to both maintain family ties and to foster mutual support. The government asked the court to strike the statement of claim, submitting that most of the relief sought is declaratory and ought to be by way of judicial review. The application was granted, in part. The plea for declaratory relief was clearly not a ground for striking out the present Statement of Claim for the court could not say that the Plaintiff's claim, although not an easy one to establish, was one so forlorned that it ought to be struck out. Indeed, the Plaintiff may well have Charter rights, for example, as to his treatment or punishment that could conceivably give rise to a remedy under Section 24 of the Charter. Further, there might be some declaratory relief available that would be of value and have practical effect. However, the decision by prison officials not to grant the inmate an ETA, and the inmate’s request for protection from reprisals by prison officials, were the proper subject of a judicial review application. They were struck from his claim. The inmate was permitted to amend his claim in order to seek general and punitive damages stemming from his alleged rights violations.

Steele v. Canada (National Parole Board) [1998] F.C.J. No.1428 (F.C.T.D.), 1998 CanLII 8610 (F.C.) — This application was for the judicial review of a decision of the National Parole Board dated November 13, 1996, to the effect that the inmate applicant was not entitled to escorted temporary absences. Subsection 17(1) of the Corrections and Conditional Release Act provides that the warden of a penitentiary may authorize and grant temporary absences to an inmate under certain conditions. Section 746.1 of the Criminal Code stipulates that no absence without escort may be authorized, except with the approval of the Board, in respect of a person sentenced to imprisonment for life, without eligibility for parole, until the expiration of all but three years of the specified number of years of imprisonment. Clearly, section 746.1 did not apply to this inmate who has been incarcerated since January 18, 1985, with a parole ineligibility of ten years. Thus, it was not for the Board but for the institutional head to decide whether or not escorted temporary absences ought to be granted. Consequently, the Board was not exercising a jurisdiction provided by a federal act and was therefore "not acting as a federal board, commission or other tribunal" within the meaning of sections 2, 18 and 18.1 of the Federal Court Act. It follows that the "decision" of the Board is not a decision reviewable by this Court.

R v. Knoblauch (2000), 149 C.C.C. (3d) 1, 37 C.R. (5th) 349, 192 D.L.R. (4th) 193, [2000] 2 S.C.R. 780, [2000] S.C.J. No.59 (S.C.C.) — Under the CCRA, temporary absences may be authorized (s17). This makes abundantly clear that incarceration or imprisonment as a form of punishment is a regime that may not require a total restriction on freedom of movement.

McCabe v. Canada (Attorney General) (2001), 33 Admin.L.R. (3d) 296, 42 C.R. (5th) 388, 199 D.L.R. (4th) 341, 204 F.T.R. 49, [2001] F.C.J. No.535 (F.C.T.D.) — This was an application for judicial review of a recommendation made by the National Parole Board to the warden relating to the inmate's application for escorted temporary absences. Although Steele v. Canada (National Parole Board), [1998] F.C.J. No.1428 (FCTD) asserted that since the Board was not exercising a statutory power its recommendation was not a reviewable decision, such a restrictive interpretation would preclude review of ultra vires administrative acts that are the very subject of remedies provided for under section 18 . Once a body is found to have powers conferred by an Act of Parliament all actions of that body affecting the rights of an individual are subject to judicial review. There was no merit to the argument that the Board's recommendation was not reviewable because it was not a "final decision that disposes of a substantive question". Non-dispositive decisions are reviewable if they affect the subject's interests. The recommendation was sufficiently prejudicial to the applicant's interests to warrant judicial scrutiny. No provision of the CCRA grants the Board power to conduct hearings, review evidence, find facts or issue recommendations with respect to requests for ETAs. Subsection 17(1) clearly gives the institutional head the decision-making authority subject to the caveat in Criminal Code, section 746.1. That provision did not apply in this case because the requested ETA would not occur more than three years before the specified number of years of imprisonment. There is no statutory requirement under such circumstances for the institutional head to obtain the Board's approval with respect to an ETA application. Pursuant to CCRA, subsection 144(2) the Board may release its decisions to the public subject to certain conditions. Since the Board's recommendation was not a "decision" it should not have been released to the media.

Temporary absences may be approved — exception

17.1 (1) The Parole Board of Canada may authorize the temporary absence of an inmate who is serving a sentence of imprisonment for life imposed as a minimum punishment and is eligible for day parole if the inmate is escorted by a staff member or other person authorized by the institutional head and the Parole Board of Canada is of the opinion that

  • (a) the inmate will not, by reoffending, present an undue risk to society during an absence authorized under this section;
  • (b) it is desirable for the inmate to be absent from the penitentiary for administrative reasons, community service, family contact, including parental responsibilities, personal development for rehabilitative purposes or compassionate reasons;
  • (c) the inmate’s behaviour while under sentence does not preclude authorizing the absence; and
  • (d) a structured plan for the absence has been prepared.

The temporary absence may be for a period of not more than 15 days.

Subsequent temporary absence

(2) If the Parole Board of Canada authorizes the temporary absence of an inmate under subsection (1) for community service, family contact, including parental responsibilities, or personal development for rehabilitative purposes and the temporary absence is not cancelled because the inmate has breached a condition, the institutional head may authorize that inmate’s subsequent temporary absences with escort if the institutional head is of the opinion that the criteria set out in paragraphs (1)(a) to (d) are met.

Subsequent temporary absence — Parole Board

(3) If a temporary absence authorized by the institutional head is cancelled because the inmate breached a condition in relation to it, the inmate’s subsequent temporary absence may be authorized only by the Parole Board of Canada.

Conditions

(4) The Parole Board of Canada or the institutional head, as the case may be, may impose, in relation to a temporary absence that it authorizes, any condition that it considers reasonable and necessary in order to protect society.

Cancellation and reasons

(5) The institutional head may cancel a temporary absence that is authorized under this section either before or after its commencement and shall give the inmate written reasons for doing so.

Authorization or refusal and reasons

(6) The Parole Board of Canada or the institutional head, as the case may be, shall give the inmate written reasons for authorizing or refusing a temporary absence.

2014, c. 36, s. 1.1.

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Work Releases

Definition of “work release”

18. (1) In this section, “work release” means a structured program of release of specified duration for work or community service outside the penitentiary, under the supervision of a staff member or other person or organization authorized by the institutional head.

Work releases may be authorized

(2) Where an inmate is eligible for unescorted temporary absences under Part II or pursuant to section 746.1 of the Criminal Code, subsection 226.1(2) of the National Defence Act or subsection 15(2) of the Crimes Against Humanity and War Crimes Act, and, in the opinion of the institutional head,

  • (a) the inmate will not, by reoffending, present an undue risk to society during a work release,
  • (b) it is desirable for the inmate to participate in a structured program of work or community service in the community,
  • (c) the inmate’s behaviour while under sentence does not preclude authorizing the work release, and
  • (d) a structured plan for the work release has been prepared,

the institutional head may authorize a work release, for such duration as is fixed by the institutional head, subject to the approval of the Commissioner if the duration is to exceed sixty days.

Conditions

(3) The institutional head may impose, in relation to a work release, any conditions that the institutional head considers reasonable and necessary in order to protect society.

Suspension or cancellation

(4) The institutional head may suspend or cancel a work release either before or after its commencement.

Reasons to be given

(5) The institutional head shall give the inmate written reasons for the authorizing, refusal, suspension or cancellation of a work release.

Warrant

(6) Where a work release is suspended or cancelled after its commencement, the institutional head may cause a warrant in writing to be issued authorizing the apprehension and recommitment to custody of the inmate.

1992, c. 20, s. 18; 1995, c. 22, s. 13, c. 42, ss. 8, 71(F); 1998, c. 35, s. 109; 2000, c. 24, s. 35; 2013, c. 24, s. 127.

Previous Version

Corresponding Regulations: Sections 9-10 Escorted Temporary Absences and Work Releases

Judicial Consideration —

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Doran v. Canada (Correctional Services) (1996), 108 F.T.R. 93, [1996] F.C.J. No.304 (F.C.T.D.) — This was an application for judicial review and for an order setting aside the decision of the respondent CSC dated on or about November 28, 1994 to deduct amounts for room and board from income paid to the applicants from "non-Treasury Board sources". Each applicant had been employed with an outside employer under a work release arrangement during his incarceration. On or about November 25, 1994 the applicants and other inmates in similar work situations received a memorandum from the Warden of the Frontenac Institution which stated that inmates who are currently on work release would be required to pay room and board, and that, as a condition of work release, they would be required to sign a form consenting to the deduction of such payments. Those who did not consent to this deduction would have their work release cancelled. In allowing the application, the court was of the view that at the time the express provisions of s78 and paragraph 96(z.2) clearly indicated that Parliament intended to grant the Commissioner the authority to make deductions for room and board only where an inmate receives his or her pay as authorized by the Commissioner at rates approved by the Treasury Board. The Commissioner was not expressly authorized to make deductions where inmates received payments from sources other than those described in sections 78(1). The CSC could not rely on the consent form signed by the applicants to deduct room and board from their pay. A statutory authority, as are the respondents, has no power to act, by contract or acquiescence of another, beyond the powers authorized by its enabling legislation. Effective January 24, 1996, section 78 of the CCRA has been amended in such a way that the Commissioner would be authorized to make such deductions.

Investigations

General

19. (1) Where an inmate dies or suffers serious bodily injury, the Service shall, whether or not there is an investigation under section 20, forthwith investigate the matter and report thereon to the Commissioner or to a person designated by the Commissioner.

Copy to Correctional Investigator

(2) The Service shall give the Correctional Investigator, as defined in Part III, a copy of its report referred to in subsection (1).

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Special investigations

20. The Commissioner may appoint a person or persons to investigate and report on any matter relating to the operations of the Service.

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Application of Inquiries Act

21. Sections 7 to 13 of the Inquiries Act apply in respect of investigations carried on under section 20

  • (a) as if the references to “commissioners” in those sections were references to the person or persons appointed under section 20; and
  • (b) with such other modifications as the circumstances require.

Judicial Consideration —

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Yeomans v. Gaw (1985), 22 C.C.C. (3d) 311, [1985] 1 F.C. 561, [1986] 6 W.W.R. 72 (F.C.A.) — The Commissioner of Corrections set up a commission of inquiry pursuant to section 12 of the Penitentiary Act to investigate the operation of a particular parole office – the terms of reference including specific allegation of criminal conduct against the director of the office. In allowing the appeal, thereby approving of the inquiry, the court was of the view that the inquiry convened by the appellant was one with respect to matters affecting the operation of the correctional service, and the mere fact that it involved consideration of allegations which, if true, would amount to criminal offences did not turn it into a criminal proceeding or one for the enforcement of the criminal law. Further, the holding of such an inquiry, per se, would not necessarily infringe any right guaranteed to the respondent by the Canadian Charter of Rights and Freedoms.

Compensation for Death or Disability

Minister may pay compensation

22. The Minister or a person authorized by the Minister may, subject to and in accordance with the regulations, pay compensation in respect of the death or disability of

  • (a) an inmate, or
  • (b) a person on day parole

that is attributable to the participation of that inmate or person in an approved program.

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Information

Service to obtain certain information about offender

23. (1) When a person is sentenced, committed or transferred to penitentiary, the Service shall take all reasonable steps to obtain, as soon as is practicable,

  • (a) relevant information about the offence;
  • (b) relevant information about the person’s personal history, including the person’s social, economic, criminal and young-offender history;
  • (c) any reasons and recommendations relating to the sentencing or committal that are given or made by
    • (i) the court that convicts, sentences or commits the person, and
    • (ii) any court that hears an appeal from the conviction, sentence or committal;
  • (d) any reports relevant to the conviction, sentence or committal that are submitted to a court mentioned in subparagraph (c)(i) or (ii); and
  • (e) any other information relevant to administering the sentence or committal, including existing information from the victim, the victim impact statement and the transcript of any comments made by the sentencing judge regarding parole eligibility.

Access by offender

(2) Where access to the information obtained by the Service pursuant to subsection (1) is requested by the offender in writing, the offender shall be provided with access in the prescribed manner to such information as would be disclosed under the Privacy Act and the Access to Information Act.

Disclosure to Service

(3) No provision in the Privacy Act or the Access to Information Act shall operate so as to limit or prevent the Service from obtaining any information referred to in paragraphs (1)(a) to (e).

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Accuracy, etc., of information

24. (1) The Service shall take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible.

Correction of information

(2) Where an offender who has been given access to information by the Service pursuant to subsection 23(2) believes that there is an error or omission therein,

  • (a) the offender may request the Service to correct that information; and
  • (b) where the request is refused, the Service shall attach to the information a notation indicating that the offender has requested a correction and setting out the correction requested.

1992, c. 20, s. 24; 1995, c. 42, s. 9(F).

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Tehrankari v. Canada (Correctional Service) (2000), 188 F.T.R. 206, 38 C.R. (5th) 43, [2000] F.C.J. No.495 (F.C.T.D.) — Where an inmate requested of the CSC that statements falsely alleging an assault against another inmate be stricken from his record, the CSC responded by simply noting the request for a correction in his file. The inmate applied for judicial review, concerned that the erroneous information may be used in a manner prejudicial to him. The court allowed the application and ordered the CSC decision set aside, remitting the matter for reconsideration. The signal given by Parliament in section 24, in the form of a statutory duty imposed on the CSC, is that the "information banks" reflected in various reports maintained about offenders should contain the best information possible: exact, correct information without relevant omissions and data not burdened by past stereotyping or archaisms related to the offender. In Parliament's view, the quality of the information prescribed by section 24 leads to better decisions about an offender's incarceration and, in this manner, leads to the achievement of the purposes of the Act. Section 24 gives rise to the decision by the Service whether or not to rectify the record of an offender who believes the information about him/her is inaccurate. Such a decision, limited to primary facts, does not involve considerable choices by the CSC and turns on the application of proper legal principles and involves the rights and interests of an offender. Paragraph 24(2)(b) provides "where the request is refused, the Service shall attach to the information a notation...". Properly construed, these words enable the CSC to correct or refuse to correct the information - because there is this choice, the CSC exercises a discretion when making the decision to correct or not. If so, such discretion is reviewable on proper principles governing the review of discretionary decisions such as bad faith, improper purpose, irrelevant consideration and error of law. The court held that in this case the Commissioner, in exercising his discretion to refuse to correct the information requested, committed a number of reviewable errors. First, he did not properly interpret the scope of the CSC's obligations in terms of the accuracy, completeness and up-to-date nature of the information. This misinterpretation led him to conclude some of the information on file was valid or justified. Second, he failed to appreciate the nature and limits of the discretion inherent in a decision to refuse to correct information. Parliament simply did not intend inaccurate information to remain on file counterbalanced only by an offender's correction request noted on file. The CSC, in the circumstances, was obligated to consider why a correction was not appropriate. Third, whatever appreciation the Commissioner had on the scope of the discretion to refuse a correction, such refusal had to be based on proper considerations - these were lacking in this case. To refuse to correct misinformation on the grounds the Service exercised its option to increase the inmate's security level or to justify inaction to correct on the basis the information was still relevant for administrative purposes amounts to improper considerations.

Service to give information to parole boards, etc.

25. (1) The Service shall give, at the appropriate times, to the Parole Board of Canada, provincial governments, provincial parole boards, police, and any body authorized by the Service to supervise offenders, all information under its control that is relevant to release decision-making or to the supervision or surveillance of offenders.

Police to be notified of releases

(2) Before the release of an inmate on an unescorted temporary absence, parole or statutory release, the Service shall notify all police forces that have jurisdiction at the destination of the inmate if that destination is known.

Service to give information to police in some cases

(3) Where the Service has reasonable grounds to believe that an inmate who is about to be released by reason of the expiration of the sentence will, on release, pose a threat to any person, the Service shall, prior to the release and on a timely basis, take all reasonable steps to give the police all information under its control that is relevant to that perceived threat.

1992, c. 20, s. 25; 1995, c. 42, s. 71(F); 2012, c. 1, s. 160.

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R v. Dupont (1998), 129 C.C.C. (3d) 77, 20 C.R. (5th) 392, 165 D.L.R. (4th) 512, [1998] A.Q. No.2270 (Que.C.A.) — Although a CSC psychologist's mandate fell within the missions of the Correctional Services and the National Parole Board in relation to inmates, the accused inmate’s communications with the psychologist did take place in the more general context of a psychologist-patient relationship. However, although the accused inmate disclosed information to the psychologist in confidence that it would not be disclosed, the communications did not meet the criteria set out to confer on the communication a privilege. The psychologist was working for the Correctional Service in the context of a treatment offered to the accused inmate with a view to his release. Correctional Services is required to give to the National Parole Board the relevant information that it has. The psychologist could not therefore promise to keep confidential the information that the appellant would communicate to her, and which was relevant to the decision on his release. From this perspective, it is not possible to find that the confidential nature of the communication was essential to the full and satisfactory maintenance of the relation between the parties. In fact, confidentiality is foreign to the relation that an inmate has with Correctional Services (and its agents) in the context of sections 5 and 25 of the relevant statute. The inmate’s communication with the CSC psychologist in this context was properly admitted at his trial.

Muhonen v. Davies [2000] O.J. No.3418 (Ont.S.C.J.) — The defendants motioned for security for costs partly on the ground that there was good reason to believe that the action was frivolous or vexatious. The inmate plaintiff sued N and the Attorney General of Canada for defamation. N was an employee of the CSC. Pursuant to section 25(3) of the CCRA, the CSC is obliged to communicate information to police regarding inmates about to be released where there were reasonable grounds to believe that the inmate was a threat to any person. A package of information provided to N, along with the instructions to deliver that documentation to Sault Ste. Marie Police included several relevant items from the plaintiff’s correctional file. On the basis of that documentation, N also submitted a report to the police that focused on a number of high risk factors intimating that the plaintiff was likely to re-offend sexually. The court held that there was no basis to suggest that the information provided to N did not relate to the plaintiff, or that the information was fundamentally or obviously flawed in any way. There was ample basis in the information provided to N for the statements attributed to her, and no reason to doubt the accuracy of those statements. There was no inaccuracy or excess from which negligence, recklessness or malice might be inferred. There was no basis for the allegation that N was reckless, or malicious, even giving the very broadest possible meaning to "malice". Comparing the content of the information provided to N by CSC, and the statements attributed to her and given that the allegation of malice relates only to inaccuracy and excess in describing that information, the court found that there was no basis for the allegation of malice and that the plaintiff's action against N and the CSC was frivolous. The motion for security for costs was granted.

Disclosure of information to victims

26. (1) At the request of a victim of an offence committed by an offender, the Commissioner

  • (a) shall disclose to the victim the following information about the offender:
    • (i) the offender’s name,
    • (ii) the offence of which the offender was convicted and the court that convicted the offender,
    • (iii) information pertaining to the offender’s correctional plan, including information regarding the offender’s progress towards meeting the objectives of the plan,
    • (iv) eligibility dates and review dates applicable to the offender under this Act in respect of temporary absences or parole;
  • (b) may disclose to the victim any of the following information about the offender, where in the Commissioner’s opinion the interest of the victim in such disclosure clearly outweighs any invasion of the offender’s privacy that could result from the disclosure:
    • (i) the offender’s age,
    • (ii) the name and location of the penitentiary in which the sentence is being served,
    • (ii.1) if the offender is transferred, a summary of the reasons for the transfer and the name and location of the penitentiary in which the sentence is being served,
    • (ii.2) if the offender is to be transferred to a minimum security institution as designated by Commissioner’s Directive and it is possible to notify the victim before the transfer, a summary of the reasons for the transfer and the name and location of the institution in which the sentence is to be served,
    • (ii.3) the programs that were designed to address the needs of the offender and contribute to their successful reintegration into the community in which the offender is participating or has participated,
    • (ii.4) the serious disciplinary offences that the offender has committed,
    • (iii) information pertaining to the offender’s correctional plan, including information regarding the offender’s progress towards meeting the objectives of the plan,
    • (iv) the date of any hearing for the purposes of a review under section 130,
    • (v) that the offender has been removed from Canada under the Immigration and Refugee Protection Act before the expiration of the sentence, and
    • (vi) [Repealed, 2015, c. 13, s. 46]
    • (vii) whether the offender is in custody and, if not, the reason why the offender is not in custody;
  • (c) shall disclose to the victim any of the following information about the offender, if, in the Commissioner’s opinion, the disclosure would not have a negative impact on the safety of the public:
    • (i) the date, if any, on which the offender is to be released on temporary absence, work release, parole or statutory release,
    • (ii) the conditions attached to the offender’s temporary absence, work release, parole or statutory release,
    • (iii) the destination of the offender on any temporary absence, work release, parole or statutory release, whether the offender will be in the vicinity of the victim while travelling to that destination and the reasons for any temporary absence; and
  • (d) shall provide the victim with access to a photograph of the offender taken on the occurrence of the earliest of any of the following — and any subsequent photograph of the offender taken by the Service — if, in the Commissioner’s opinion, to do so would not have a negative impact on the safety of the public:
    • (i) the release of the offender on unescorted temporary absence,
    • (ii) the offender’s work release,
    • (iii) the offender’s release on parole, and
    • (iv) the offender’s release by virtue of statutory release or the expiration of the sentence.

Timing of disclosure

(1.1) The Commissioner shall disclose the information referred to in paragraph (1)(c) before the day on which the offender is released and, unless it is not practicable to do so, the Commissioner shall disclose it at least 14 days before that day.

Continuing duty to disclose

(1.2) The Commissioner shall disclose to the victim any changes to the information referred to in paragraphs (1)(a) to (c).

Idem

(2) Where a person has been transferred from a penitentiary to a provincial correctional facility, the Commissioner may, at the request of a victim of an offence committed by that person, disclose to the victim the name of the province in which the provincial correctional facility is located, if in the Commissioner’s opinion the interest of the victim in such disclosure clearly outweighs any invasion of the person’s privacy that could result from the disclosure.

Disclosure of information to other persons

(3) Subsection (1) also applies, with such modifications as the circumstances require, to a person who satisfies the Commissioner

  • (a) that the person suffered physical or emotional harm, property damage or economic loss, as the result of an act of an offender, whether or not the offender was prosecuted or convicted for that act; and
  • (b) that a complaint was made to the police or the Crown attorney, or an information was laid under the Criminal Code, in respect of that act.

Idem

(4) Subsection (2) also applies, with such modifications as the circumstances require, to a person who satisfies the Commissioner

  • (a) that the person suffered physical or emotional harm, property damage or economic loss, as the result of an act of a person referred to in subsection (2), whether or not the person referred to in subsection (2) was prosecuted or convicted for that act; and
  • (b) that a complaint was made to the police or the Crown attorney, or an information was laid under the Criminal Code, in respect of that act.

Representative

(5) A victim may designate a representative to whom the information referred to in subsections (1) and (2) is to be disclosed on the victim’s behalf, or to whom access to a photograph referred to in paragraph (1)(d) is to be provided. In that case, the victim shall provide the Commissioner with the representative’s contact information.

Withdrawal of request

(6) A victim who has made a request referred to in subsection (1) or (2) may inform the Commissioner in writing that they no longer want the information to be disclosed to them or access to the photograph. In that case, the Commissioner shall not contact them, or their representative, if any, unless the victim subsequently makes the request again.

Deemed withdrawal of request

(7) The Commissioner may consider a victim to have withdrawn a request referred to in subsection (1) or (2) if the Commissioner has made reasonable efforts to contact the victim and has failed to do so.

Other persons

(8) Subsections (5) to (7) also apply, with any necessary modifications, to a person who has satisfied the Commissioner of the matters referred to in paragraphs (3)(a) and (b) or (4)(a) and (b).

1992, c. 20, s. 26; 2012, c. 1, s. 57; 2015, c. 13, s. 46.

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Wright v. Canada (Attorney General) [1999] F.C.J. No.1304 (F.C.T.D.) — Correctional officers prepared a report that referred to W's ex-fiancée as his victim. W contested the validity of that statement. While imprisoned, a marriage was planned and then cancelled as a result of his initiative. The ex-fiancée subsequently complained to the RCMP that the applicant had threatened her and that she feared for her safety. W alleges that these complaints were vindictive and were an attempt to make life difficult for him after he broke off their relationship. The ex-fiancée never filed a written complaint with the police, and subsequently refused to co-operate with the police on any investigation of her oral complaint against W. W's position was that his ex-fiancée was not a victim because he had not been convicted of any offence regarding her, and there should not be disclosure to her pursuant to section 26 unless he is given an opportunity to contest the assertion that she was harmed as a result of an act of his, which act became the subject of a complaint to the police. The court stated that the term "victim" is defined in section 2 of the CCRA as a person who has suffered harm as a result of the commission of an offence, and intimated that the ex-fiancée was most likely not a victim as defined in the Act. Moreover, the court could not conclude that the Commissioner (or his delegate) had determined that the conditions set out in subsection 26(3) of the CCRA had been satisfied to entitle the ex-fiancée to information about the offender. Indeed, there was no indication that the ex-fiancée had ever asked to be notified of W's whereabouts and release date pursuant to section 26 of the Act. If and when she does make such a request, a determination will be made as to whether she falls within the terms of the section.

Zarzour v. Canada (2000), 153 C.C.C. (3d) 284, 196 F.T.R. 320, 268 N.R. 235, [2000] F.C.J. No.2070 (F.C.A.) — An inmate was awarded damages by the Trial Division where the CSC and the National Parole Board unlawfully provided information about his file to his ex-wife. The Trial Division held that she was improperly classified as a “victim” vis-à-vis the CCRA, namely “a person to whom harm was done or who suffered physical or emotional damage as a result of the commission of an offence.” She was thus not entitled under sections 26 and 142 of the CCRA to the information in question. The Court of Appeal overturned the decision on the grounds that the ex-wife was entitled to the information she received pursuant to section 144 . The Court of Appeal, however, did not directly contradict the Trial Division finding that the ex-wife was not a “victim” as defined by the CCRA.

Victim-offender mediation services

26.1 (1) The Service shall provide every victim, and every person referred to in subsection 26(3) , who has registered themselves with the Service for the purposes of this section with information about its restorative justice programs and its victim-offender mediation services, and, on the victim’s or other person’s request, may take measures to provide those services.

Consent required

(2) The Service’s victim-offender mediation services are to be provided in accordance with the Commissioner’s Directives and they may be provided only with the informed consent of the participants that is voluntarily given.

2015, c. 13, s. 47.

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Information to be given to offenders

27. (1) Where an offender is entitled by this Part or the regulations to make representations in relation to a decision to be taken by the Service about the offender, the person or body that is to take the decision shall, subject to subsection (3), give the offender, a reasonable period before the decision is to be taken, all the information to be considered in the taking of the decision or a summary of that information.

Idem

(2) Where an offender is entitled by this Part or the regulations to be given reasons for a decision taken by the Service about the offender, the person or body that takes the decision shall, subject to subsection (3), give the offender, forthwith after the decision is taken, all the information that was considered in the taking of the decision or a summary of that information.

Exceptions

(3) Except in relation to decisions on disciplinary offences, where the Commissioner has reasonable grounds to believe that disclosure of information under subsection (1) or (2) would jeopardize

  • (a) the safety of any person,
  • (b) the security of a penitentiary, or
  • (c) the conduct of any lawful investigation,

the Commissioner may authorize the withholding from the offender of as much information as is strictly necessary in order to protect the interest identified in paragraph (a), (b) or (c).

Right to interpreter

(4) An offender who does not have an adequate understanding of at least one of Canada’s official languages is entitled to the assistance of an interpreter

  • (a) at any hearing provided for by this Part or the regulations; and
  • (b) for the purposes of understanding materials provided to the offender pursuant to this section.

1992, c. 20, s. 27; 1995, c. 42, s. 10(F).

[Cross Reference"Disclosure" in Placement and Transfer of Inmates Section]

[Cross Reference"Disclosure" in Administrative Segregation Section]

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Placement and Transfer of Inmates

Criteria for selection of penitentiary

28. If a person is or is to be confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which they are confined is one that provides them with an environment that contains only the necessary restrictions, taking into account

  • (a) the degree and kind of custody and control necessary for
    • (i) the safety of the public,
    • (ii) the safety of that person and other persons in the penitentiary, and
    • (iii) the security of the penitentiary;
  • (b) accessibility to
    • (i) the person’s home community and family,
    • (ii) a compatible cultural environment, and
    • (iii) a compatible linguistic environment; and
  • (c) the availability of appropriate programs and services and the person’s willingness to participate in those programs.

1992, c. 20, s. 28; 2012, c. 1, s. 58.

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Transfers

29. The Commissioner may authorize the transfer of a person who is sentenced, transferred or committed to a penitentiary to

  • (a) another penitentiary in accordance with the regulations made under paragraph 96(d) , subject to section 28; or
  • (b) a provincial correctional facility or hospital in accordance with an agreement entered into under paragraph 16(1)(a) and any applicable regulations.

1992, c. 20, s. 29; 1995, c. 42, s. 11.

Corresponding Regulations: Sections 11-16 Placement and Transfers

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Editorial Note — Upon arrival in a federal prison the prisoner is usually received at a Regional Reception Assessment Centre (RRAC) where he is classified (see the following section on "security classification" under s30 and s17-18 of the Regulations) as maximum, moderate or minimum and placed in a corresponding facility. s28 sets out the basic matters that the law requires the CSC to have regard to in deciding placement and arriving at the appropriate security classification. S29 authorizes the Commissioner or his delegate to transfer the prisoner accordingly, but subject to the requirements in s28.

Similarly, after initial placement, a prisoner may 'cascade' to lower security by having obtained the support of his case management team (CMT) by virtue of having completed programming consistent with his correctional plan working towards early conditional release.

Further, a prisoner may find himself to be the subject of an 'involuntary transfer', usually from lesser security to higher security, and therefore affecting acquired residual 'liberty' and bringing into play s7 of the Charter and 'the principles of fundamental justice'. Sometimes the transfer is to a prison of equal security but in a different region or to a 'special handling unit' (SHU). The latter clearly affects 'liberty' but the former does not, although it arguably affects 'the security of the person' having regard in particular to the factors set out in s28.

While the essential criteria for placement and transfer are set out in the Act and s17-18 of the regulations, the process, designed to achieve compliance with the 'duty to act fairly', is essentially set out in s11-16 of the regulations. These Regulations provide for a process for providing reasons for placement and transfer and an opportunity to respond to or challenge such a decision, including provision for emergency transfers requiring the process to be followed as soon as possible afterwards, transfers and placements after assessments and voluntary requests for transfer.

Procedure to Challenge or Review Transer Decision

— Generally

Lussier v. Collin (1984), 22 C.C.C. (3d) 124, 20 C.R.R. 29, [1985] 1 F.C. 124 (F.C.A.) — Even if an inmate was entitled to claim damages, he could not do so by means of an application as opposed to an action. Presuming that s24 of the Charter gives a right to claim damages, it certainly does not permit the rules of procedure prescribing how such claims must be made to be ignored.

Gill v. Canada (Deputy Commissioner, Correctional Service) (1988), 18 F.T.R. 266, [1988] 3 F.C. 361 (F.C.T.D.) — A Federal Court Trial Division judge quashed a transfer decision sending two inmates from a maximum-security institution to the SHU on the basis that insufficient information was provided. The Deputy Commissioner had sufficient status to bring an application for a stay of the Federal Court's order pending appeal. Weighing the potential risk of violence to informants if the two inmates were returned to the maximum institution against the convenience of those two inmates, the balance of convenience favoured the granting of the stay. Application granted.

Kelly v. Canada (Correctional Service) (1992), 56 F.T.R. 166, [1992] F.C.J. No.720 (F.C.T.D.) — Mandamus is a remedy granted to compel the performance of an imperative public duty. If the duty involves the exercise of discretion, mandamus cannot compel a particular result. Since the decision to allow or refuse a voluntary transfer contains a discretionary element, mandamus is not an available remedy.

Zubi v. Canada (1993), 21 Admin. L.R. (2d) 291, 71 F.T.R.168, [1993] F.C.J. No.1061 (F.C.T.D.) — It was clear from the statement of claim that the relief sought was of the type contemplated by s18 of the Federal Court Act, and not simply damages against the Crown. Thus, the proper course of action for the plaintiff would be to bring an application for judicial review pursuant to ss18 and 18.1, and then, if successful, bring an action for damages.

Creed v. Canada (Solicitor General) [1998] F.C.J. No.199 (F.C.T.D.), 1998 CanLII 7450 (F.C.) — Zubi v. Her Majesty The Queen (1993), 71 F.T.R. 168 does not stand for the proposition that it is necessary to pursue a claim of damages by first completing a judicial review proceeding. Rather, Zubi set out that when part of the relief being sought was a declaration that a tribunal or board decision was invalid, that declaration must be sought by way of judicial review.

— Whether inmate must first exhaust alternative remedy (i.e. internal grievance process)

[Cross ReferenceGrievance Procedure]

— Proceeding by way of judicial review in either Federal Court or Provincial Superior Court

Miller v. The Queen (1985), 16 Admin. L.R. 184, [1985] 2 S.C.R. 613, 49 C.R. (3d) 1, 23 C.C.C. (3d) 97, 24 D.L.R. (4th) 9 (S.C.C.) — A provincial superior court has jurisdiction to issue certiorari in aid of habeas corpus to review the validity of a detention authorized or imposed by a federal board, commission or other tribunal as defined by s2 of the Federal Court Act. "Certiorari in aid" is to be viewed as an ancillary procedure used to serve an essentially evidentiary purpose, and is in this way distinguishable from the Federal Court's exclusive jurisdiction under s18 of the Federal Court Act over certiorari as an independent and separate mode of review having as its object to quash the decision of an inferior tribunal. As well, a court may on an application for habeas corpus without certiorari in aid consider affidavit or other extrinsic evidence to determine whether there has been an absence or excess of jurisdiction. Habeas corpus should lie to determine the validity of a particular form of confinement in a penitentiary even though the same issue may be determined upon certiorari in the Federal Court. Given that there is a sliding scale in the degrees of possible deprivation of liberty within a prison itself, habeas corpus should lie to challenge the validity of a distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution.

Morin v. National Special Handling Unit Review Committee (1985), 16 Admin. L.R. 264, [1985] 2 S.C.R. 662, 49 C.R. (3d) 26, 23 C.C.C. (3d) 132, 24 D.L.R. (4th) 71 (S.C.C.) — The provincial superior courts have jurisdiction to issue a writ of habeas corpus to determine the validity of an inmate's detention in a special handling unit despite the fact that the same issue may be determined upon certiorari in the Federal Court. The proper scope of the availability of habeas corpus must be considered first on its own merits, apart from possible problems arising from concurrent or overlapping jurisdiction.

Balian v. Canada (Regional Transfer Board) (1988), 62 C.R. (3d) 258, [1988] O.J. No.87 (Ont.H.C.J.) — Habeas corpus is conceived as a method of obtaining a prisoner's release either from confinement simpliciter or, on the basis of Miller and other cases, from a new and different detention that rests on its own foundation within a larger context of confinement. It becomes more difficult, therefore, but not inconceivable, that the remedy should be extended to a mere loss of a privilege or privileges. Each case will be decided on its facts.

Poirier v. Centre Federal de Formation (Comite Disciplinaire) et al (1988), 26 F.T.R. 215 (F.C.T.D.) — It has been acknowledged that the provincial superior courts have jurisdiction to issue certiorari ancillary to habeas corpus, notwithstanding the exclusive jurisdiction conferred on the Federal Court of Canada in matters of certiorari under s18 of the Federal Court Act. However, the converse has not been acknowledged. The Federal Court of Canada therefore lacks jurisdiction to issue writ of habeas corpus ancillary to a writ of certiorari that it does have exclusive jurisdiction to issue under s18. It is well established that while rule 334 authorizes the Federal Court to issue a writ of habeas corpus testificandum, it nevertheless lacks jurisdiction or competence to issue a writ of habeas corpus ad subjiciendum, except with regard to a member of the Canadian Armed Forces serving abroad under s19(5) of the Federal Court Act.

Young v. Canada (Correctional Service) (1994), 119 Sask.R. 68, [1994] S.J. No.61 (Sask.Q.B.) — A provincial superior court does not have the jurisdiction to issue a writ of mandamus ordering the CSC to transfer an inmate to a specific institution. Only the Federal Court could make such an order.

Bachynski v. William Head Institution [1995] B.C.J. No.1715 (B.C.S.C.) — Certiorari to quash is a remedy in the nature of an order setting aside the decision of a tribunal and is not available to a provincial superior court where it is directed at a federal tribunal because the granting of such an order is within the exclusive jurisdiction of the Federal Court. However, on an application for habeas corpus a court may inquire into the detention of a prisoner, determine whether it is lawful, and issue an order transferring that inmate back to the institution from which he came. Certiorari in aid is a remedy in the nature of an order allowing provincial superior courts to make the remedy of habeas corpus more effective by requiring production of the record of the proceedings in the tribunal below.

Laking v. Canada (1995), 136 Sask.R. 24, [1995] S.J. No.571 (Sask.Q.B.), 1995 CanLII 6018 (SK Q.B.) — While the provincial superior courts have broad and extensive powers on an application for habeas corpus to review the decision of the penitentiary officials who have ordered the impugned detention (involuntary transfer), they nevertheless could not review the underlying decision of the Independent Chairperson to enter a disciplinary conviction even though that decision was a significant part of the reason for the detention order. The Trial Division of the Federal Court has jurisdiction to review and possibly quash the decision of the Independent Chairperson. Despite the fact that the provincial court judge hearing the application suggested that the disciplinary conviction was unlawful, as it stood, the conviction entered by the Independent Chairperson was valid and effective and remained so until a court of competent jurisdiction determined otherwise. The application for habeas corpus, even with certiorari in aid, did not empower the provincial superior court to proceed as if the conviction was invalid.

Fisk v. Canada (Pacific Region Correctional Service) [1996] B.C.J. No.179 (B.C.S.C.), 1996 CanLII 489 (BC S.C.) — Habeas corpus is available to an inmate who has been transferred from a lesser security institution to a greater security institution. However, in this case, there was no increase in security because the Regional Reception Assessment Centre (RRAC) is considered a maximum-security institution. Since F was transferred from one maximum-security facility to another and never acquired a status other than that of a maximum-security inmate, there was no deprivation of liberty by which habeas corpus could grant relief. The proper course for F to challenge the placement decision of the CSC in light of his claim of a lack of procedural fairness was by way of certiorari proceedings in the Federal Court Trial Division.

Hickey v. Kent Institution [1999] B.C.J. No.2778 (B.C.S.C.), 1999 CanLII 4380 (BC S.C.) — The Court lacked jurisdiction to issue habeas corpus where a proposed involuntary transfer had not yet occurred since the petitioner was at the time lawfully detained. In such circumstances, the proper procedure would be to challenge the underlying decision by judicial review under s18 of the Federal Court Act, as a petitioner may apply for a writ of certiorari to the Federal Court before he is transferred.

Bernard v. Kent Institution 2000 BCCA 253, [2000] B.C.J. No.732 (B.C.C.A.) — Where an inmate applied for habeas corpus in a matter in anticipation of a transfer as opposed to the situation where the transfer has been executed the Court asserted that Hickey v. Kent Institution, [1999] B.C.J. No.2778 (B.C.S.C.) was the decision on point. In that case, it was held that there is no anticipatory jurisdiction in habeas corpus in the provincial superior courts. Unless and until Hickey is overturned (leave to appeal having been granted) it remains the law.

May v. Ferndale Institution 2001 BCSC 1335, [2001] B.C.J. No.1939 (B.C.S.C.) — Referring to R. v. Miller, [1985] 2 S.C.R. 613, 23 C.C.C. (3d) 97 (S.C.C.), the Court asserted that it was authorized to review the validity of the transfer decisions in this situation because the applicants put their case on the basis of an alleged absence or excess of jurisdiction, rather than a challenge inquiring into the merits of the case. The alleged lack of jurisdiction here centred upon the applicant's submission that the CSC had simply applied an arbitrary new policy to the applicants without considering the individual merits of their cases as mandated by ss28 and 29 of the CCRA, and the Regulations.

Bonamy v. Canada (Commissioner of Corrections) (2000), 198 Sask.R. 252, [2000] S.J. No.588 (Sask.Q.B.), 2000 SKQB 385 — Provincial superior courts have no jurisdiction to grant relief that essentially would contemplate the granting of a writ of mandamus directing the CSC to transfer B to a specific institution in British Columbia. However, provincial superior courts have jurisdiction by habeas corpus to make remedial orders in circumstances where the confinement or detention of a prisoner is more restrictive or severe than those contemplated by the CCRA. In this case, the placement of B in a facility approximately 2000 km from his home community, without any justification for doing so, was deemed under the CCRA a detention more severe than the placement of B in a penitentiary of the same security level closer to his home community.

St-Amand v. Canada (Attorney General) (2000), 147 C.C.C. (3d) 48 (Que.C.A.) — As opposed to other extraordinary remedies, habeas corpus is remedy as of right once evidence has led the Court to conclude that the applicant has been illegally deprived of his liberty. The enactment of the Charter has had the effect of expanding the scope of habeas corpus. The Supreme Court of Canada has ruled that the rules of common law governing habeas corpus motions should be applied in a flexible manner if the applicant has demonstrated that continued detention breaches the principles of fundamental justice recognized under the Charter. The possibility of recourse to habeas corpus as a remedy under paragraph 24(1) of the Charter thus allows the Courts a wider latitude when the application is truly of a constitutional nature.

Mousseau v. Drumheller Penitentiary [2001] A.J. No.1488 (Alta.Q.B.) — The Alberta Court of Queen's Bench held that it had jurisdiction to hear M's application for habeas corpus with certiorari in aid. Acknowledging that the Federal Court was a proper, appropriate and effective forum for M's application, the Queen's Bench nevertheless decided to exercise its concurrent jurisdiction and hear the habeas corpus application on the basis that M could be prejudiced if made to wait for a Federal Court hearing scheduled to take place at a later date than his hearing with the National Parole Board.

— Extensions of time on deadlines for applications to Federal Court

Myre v. Canada (Attorney General) (1992), 53 F.T.R. 152, [1992] F.C.J. No.301 (F.C.T.D.) — In allowing this application for an extension of time to file for judicial review, the Court was satisfied that the applicant maintained a continuing intention to bring a proceeding, that the respondent government was not prejudiced and that there was at least an arguable case. In terms of the latter condition, the Court held that the staying of criminal charges relating to the alleged event that precipitated the transfer recommendation indicated that the inmate's involvement in that event could not be shown, thereby establishing an arguable issue.

Bullock v. Canada [1997] F.C.J. no. 1661, 221 N.R. 345 (F.C.A.), 1997 CanLII 5830 (F.C.A.) — The basic rule established by s18(2) of the Federal Court Act is that judicial review must be sought within 30 days from the day the impugned decision is rendered. An extension of the time may be granted but, as a general rule, such extension will be allowed only if the entire delay is satisfactorily accounted for and if the application discloses a fairly arguable case within the jurisdiction of the Court. In this case, an extension was granted despite an eight-month delay.

Marshall v. Canada (Solicitor General) [2002] F.C.J. No.221, 2002 FCT 168 (F.C.T.D.) — In this case, the Court was not satisfied that justice required that the extension of time for the filing of an application for judicial review be granted. The Court was not satisfied in any way that M displayed due diligence. Also relevant was the absence of any evidence as to the intent to commence proceedings and the absence of any explanation for the delay in commencing proceedings. The length of delay was also a factor. In considering what justice requires, the Court also reviewed the merits of M's underlying application for judicial review. The filing of a supplementary affidavit is allowed in limited instances and special circumstances. The general test is whether the additional material will serve the interests of justice, will assist the Court and will not seriously prejudice the other side, it is also important that any supplemental affidavit neither deal with material which could have been made available at an earlier date.

— Granting of interlocutory injunction (stay) of transfer pending judicial review

Horii v. Canada (1991), 7 Admin. L.R. (2d) 1, 132 N.R. 48, [1992] 1 F.C. 142 (F.C.A.) — The Trial Division dismissed the inmate's application for an interlocutory injunction. The Court of Appeal reversed and granted a stay of the transfer pending judicial review. The Court applied the tripartite test for the granting of an interlocutory injunction: 1) Has the applicant demonstrated that there is a serious issue to be tried? 2) Will the applicant suffer irreparable harm if an injunction is not granted? 3) Will the harm to the respondent or to the public interest in the event that an injunction is granted outweigh the harm to the applicant ("balance of convenience")?

Lavery v. Canada (Correctional Service) (1996), 116 F.T.R. 207, [1996] F.C.J. No.869 (F.C.T.D.) — In granting an application for a stay of an involuntary transfer, the Court discussed and applied the generally accepted tripartite test. The applicant demonstrated that there was a serious issue, that he would suffer irreparable harm if the stay were denied, and that the balance of convenience lay in his favour.

Jolivet v. Canada (Attorney General) [2000] F.C.J. No.1856 (F.C.T.D.), 2000 CanLII 16592 (F.C.) — The court dismissed a motion where an inmate sought an order from the court returning him to the penitentiary he had been transferred from, and an interlocutory injunction from the original decision to transfer pending review. The inmate did not persuade the court that he would suffer irreparable harm if his motion were to fail. Of particular note was the fact that since his arrival at the institution he was involuntarily transferred to, the inmate had not asked the penitentiary authorities for protection against his alleged antagonists. The inmate could have asked to be placed in administrative segregation but did not do so, preferring to work in the laundry, which had the effect of putting him in contact with the general population. For these reasons, the court did not allow the inmate's motion.

Quinta v. Canada (Attorney General) [2000] F.C.J. No.1020 (F.C.T.D.), 2000 CanLII 15763 (F.C.) — The tripartite test set out for such an application is whether the plaintiff has been able to establish the existence of a serious question for consideration, that irreparable harm could be done to him and finally, that the balance of convenience is in his favor. Q argued that the circumstances did not justify a transfer since his statutory release date was just over two months away from the date in time the decision to transfer was made, and the unit manager and Preventive Security Officer disagreed with the decision. The Court was not persuaded that there was a serious question for decision that required its intervention or that G would suffer irreparable harm as the result of his transfer.

Plamondon v. Canada (Attorney General) [2001] F.C.J. No.221 (F.C.T.D.), 2001 FCT 77 (CanLII) — In this motion an inmate sought an order to compel the responsible penitentiary authorities to return him to the Donnacona Institution, following his involuntary transfer to the Atlantic Institution, until his application for judicial review seeking cancellation of the said transfer is heard. This type of provisional remedy requested can only be granted if he is able to show that he can make out a prima facie case, that he will suffer irreparable harm if the remedy is not granted and that the balance of convenience is in his favour. In dismissing the application, the court was of the opinion that assuming, without deciding the point, a prima facie case has been made out, the inmate was not able to meet the other two requirements of the test. The evidence was that the effect of the inmate's transfer was to enable him to enter a regular prison population, whereas he was in involuntary administrative segregation at Donnacona. This situation certainly could not constitute "irreparable harm". On the remainder of the argument, the distance separating the inmate from his counsel and family, the fact that it was necessary for him to adjust to a particular social life at his new place of detention and the inmate's needs relating to education were only instances of inconvenience. As to the balance of convenience, the court felt that this was clearly in favour of the CSC. The inmate was no longer "integrable" into the regular population at Donnacona. The court therefore agree with the CSC's view that as the correctional authorities had a duty to ensure that the inmate would develop in surroundings which were as free of limitations as possible it was within their powers to take him out of involuntary administrative segregation and allow him to re-enter a regular population in another institution.

Standard of review

— Correctional cases

Tehrankari v. Canada (Correctional Service) (2000), 38 C.R. (5th) 43, 188 F.T.R. 206, [2000] F.C.J. No.495 (F.C.T.D.) — Citing Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Court applied the pragmatic and functional approach to a correctional case. In order to determine the standard of review four factors must be considered: 1) The presence or absence of a privative clause in the Act. 2) The expertise of the decision-maker. 3) The purpose of the provision, in particular, and the Act as a whole. 4) The nature of the problem in question especially whether it relates to the determination of law or facts.

— Transfer cases specifically

Fitzgerald v. William Head Institution [1994] B.C.J. No.1534 (B.C.S.C.) — The Court held that the government carried the onus of establishing that the ultimate decision to transfer was, on a balance of probabilities, not patently unreasonable. A definition for "patently unreasonable" may be grounded in the question: Is this a decision that we can let stand?

Légère v. Canada (1997), 133 F.T.R. 77, [1997] F.C.J. No.749 (F.C.T.D.) — The decision to transfer or to refuse to transfer an inmate is a discretionary one, which attracts the duty of procedural fairness. The general rule with respect to the standard of review applicable to discretionary decisions is that the courts should not interfere merely because the court might have exercised the discretion in a different manner. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, then the courts should not interfere.

Harms v. Canada (Correctional Service) (2000), 195 F.T.R. 144, [2000] F.C.J. No.1706 (F.C.T.D.) — Citing Fitzgerald v. William Head Institution, [1994] B.C.J. No.1534 (B.C.S.C.), the Court set out that the standard of review in the context of decisions made by CSC officials is, on the balance of probabilities, whether the decision was patently unreasonable.

Dupras v. Kent Institution [2001] F.C.J. No.968 (F.C.T.D.), 2001 FCT 632 (CanLII) — In the past the standard of review on the ultimate decision to transfer was patent unreasonableness. However, it may be that the standard of review has been changed as a result of the decisions in both Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. Accordingly, the Court utilized the standard of reasonableness simpliciter to review the decision in this case.

Application of Charter rights generally

Dubois v Sauve et al Unreported, January 20, 1984, No. T-1418-83 (F.C.T.D.) — Incarceration in the SHU was not, in and of itself, a violation of s.12 of the Charter. The modern definition of "cruel and unusual punishment" in penal law goes beyond "barbaric physical punishments" and includes "unnecessary and wanton infliction of pain… without penological justification." The phrase must be understood in terms of "standards of decency that mark the progress of a maturing society." The true purpose of the penal function is "to punish justly, to deter future crime, and to return imprisoned persons to society with an improved chance of being useful, law-abiding citizens."

Hay v. Canada (National Parole Board) (1985), 13 Admin. L.R. 17, 21 C.C.C. (3d) 408, 18 C.R.R. 313 (F.C.T.D.) — In light of the well-founded notion of a "prison within a prison," transfers engage the provisions of the Charter. The decision to effect an involuntary transfer sending an inmate to a more secure facility, without any fault or misconduct on the part of the inmate, is the quintessence of unfairness and arbitrariness, and in this case was a violation of the s9 Charter right protecting one from arbitrary detention or imprisonment.

Demaria v.Canada (Regional Transfer Board) (1988), 18 F.T.R. 68, 62 C.R. (3d) 248, [1988] 2 F.C. 480 (F.C.T.D.) — It is well established that that s7 of the Charter applies to decisions taken with respect to involuntary transfers of prisoners from one institution to another, at least where the transfer involves a move from lower to higher security. S7 has been interpreted to require not only procedural fairness in the narrow sense, but also that decisions not be made in an unreasonable or arbitrary manner, as having been made without evidence to support it.

Pruneau v. Goulen, Perron and Methe (1988), 23 F.T.R. 19 (F.C.T.D.) — On the facts in this case, the applicant failed to establish a deprivation of the right accorded to him by s12 of the Charter. The Court held that the effect of his interregional transfer was not "grossly disproportionate to what would have been appropriate."

Gallant v. Canada (Deputy Commissioner Correctional Service) (1989), 36 Admin. L.R. 261, 68 C.R. (3d) 173, [1989] 3 F.C. 329 (F.C.A.) — There is no doubt that the decision to transfer an inmate is subject to the s7 Charter principles of fundamental justice. There is a distinction between the procedural rules of fundamental justice and the substantive rules of fundamental justice. The former are akin to the rules of natural justice and fairness and are variable or flexible. The latter are not variable or flexible and can only be modified by Parliament in accordance with s1 of the Charter.

Williams v. Canada (Correctional Service) (1993), 15 Admin. L.R. (2d) 83, 19 C.R. (4th) 151, [1993] F.C.J. No. 21 (F.C.A.) — It is settled law that a transfer to higher security or administration segregation amounts to a new and separate detention over and above the detention to which is imposed by a sentence of incarceration. As such, s10 of the Charter is engaged.

Forrest v. Canada (Solicitor General) (1998), 154 F.T.R. 22, [1998] F.C.J. No.1483 (F.C.T.D.) - F argued a s15 violation on the grounds that the decisions resulted from systemic discrimination and targeting on the basis of race and membership in a group of black inmates. There was no evidence of bad faith. While correctional decisions, such as a transfer in this case, are to be scrutinized under s15, there was no evidence to support a conclusion that there was different treatment of the applicant or that he was discriminated against on the basis of some enumerated or analogous ground under s15.

Procedural Fairness

— Generally

Storry v. William Head Institution [1997] F.C.J. No.1768 (F.C.T.D.), (1997), 139 F.T.R. 122 — The requirements of procedural fairness are applicable in a transfer that is involuntary regardless of whether the transfer is to a higher security institution or not.

St-Amand v. Canada (Attorney General) (2000), 147 C.C.C. (3d) 48 (Que.C.A.) — An inmate was transferred on an emergency basis pursuant to s13 of the CCR Regulations, which provides that the normal procedures set out in s12 giving an inmate prior notice and an opportunity to prepare representations do not apply, subject to s13(2), where it is determined that it is necessary to immediately transfer an inmate for the security of the penitentiary or the safety of the inmate or any other person. Section 13 of the Regulations must be applied solely and exclusively for the purpose of ensuring the security of the penitentiary, that of an inmate or of any other person.

— Disclosure of information to inmate

Demaria v. Regional Classification Board and Payne (1986), 21 Admin.L.R. 227, 30 C.C.C. (3d) 55, 53 C.R. (3d) 88, [1986] F.C.J. No. 493, [1987] 1 F.C. 74 (F.C.A.) — The burden is always on the authorities to demonstrate that they have withheld only such information as is strictly necessary for that purpose [protecting the identity of informants]. In the final analysis, the test must be not whether there exist good grounds for withholding information but rather whether enough information has been revealed to allow the person concerned to answer the case against him.

Gallant v. Canada (Deputy Commissioner Correctional Service) (1989), 36 Admin. L.R. 261, 68 C.R. (3d) 173, [1989] 3 F.C. 329 (F.C.A.) — In overturning a Trial Division Court's decision quashing a transfer on the basis that the inmate had not been supplied with sufficient information, the Court of Appeal split three ways. Pratte J.A. held that the transfer was not in accordance with s7 of the Charter principles of fundamental justice since the inmate had not been given a real opportunity to answer the allegations made against him. However, the transfer decision was saved by s1 of the Charter. Marceau J.A. found that substantial information was disclosed and that cogent reasons for non-disclosure of further particulars were given. In dissent, Desjardins J.A. held that the inmate did not have enough information to defend himself.

Balian v. Canada (Regional Transfer Board) (1988), 62 C.R. (3d) 258, [1988] O.J. No.87 (Ont.H.C.J.) — A transfer decision was quashed on the basis that the inmate was not provided with sufficient information to enable him to effectively defend himself against possible arbitrariness. The use of informer evidence does not act as a justification for dispensing with fairness. Experience has shown that a great deal can be disclosed while protecting the identity of the fellow inmates who inform.

Cyr v. Canada (Correctional Service) (1988), 22 F.T.R. 69, [1988] F.C.J. No.540 (F.C.T.D.) — The inmate was provided with sufficient information and had plenty of opportunity to make submissions. The application was dismissed.

Camphaug v. Canada (1990), 34 F.T.R. 165, [1990] F.C.J. No.333 (F.C.T.D.) — Fairness does not require that the inmate be given all of the particulars of all alleged wrongdoings. It is sufficient if he can make representations to demonstrate that the recommendation that he be moved is an unreasonable one. The Court was satisfied that the inmate had available all of the information made available to the Deputy Commissioner.

Ericson v. Canada (Correctional Service) (1991), 5 Admin. L.R. (2d) 206, 10 C.R. (4th) 235, [1991] B.C.J. No.3393 (B.C.S.C.) — Procedural fairness had been breached where an inmate, alleged to be involved in drug trafficking, was not provided with sufficient disclosure regarding the details of the allegation and the names of the informants. While acknowledging that prison officials owed a duty to protect the identity of informants, the Court nevertheless claimed that experience has shown that a great deal can be disclosed while protecting the identity of fellow inmates who inform. What was clear in this case was that the applicant was not permitted to play a reasonable informed part in the whole process

Bruce v. Canada (Attorney General) (1992), 5 Admin. L.R. (2d) 258, 13 C.R. (4th) 384 (N.B.C.A.) [reversing (1991) 2 Admin. L.R. (2d) 26, 7 C.R. (4th) 93 (N.B.Q.B.)] — An inmate was provided with sufficient disclosure where the information given to the inmates named the drugs being sold, identified the method by which cash was transferred out of the prison, set forth which of the inmates was responsible for which parts of the drug operation, set out where the funds for purchase of drugs originated within the institution, described the method of transfer of drugs within the prison, described the method of payment, and made reference to the intimidation of other inmates with regard to the use of recreation equipment.

Lee v. Canada (Correctional Service) (1993), 17 Admin. L.R. (2d) 271, 67 F.T.R. 54, [1993] F.C.J. No.759 (F.C.T.D.) — It is not for the decision-maker to pick and choose the information that will be disclosed to various inmates. All information in the possession of the decision-maker that is relevant must be disclosed unless doing so would reveal the identity of informants. In this case, disclosure came too late as to be of any use resulting in the denial of procedural fairness. Although not necessary in this case, in situations where allegations are made on the basis of confidential information provided to authorities by informants, it was suggested that it may be appropriate for the Court to review all of the information upon which decisions are based in order to determine what more could have been given to the applicants.

Fitzgerald v. William Head Institution (1993), 15 Admin. L.R. (2d) 101, [1993] B.C.J. No.102 (B.C.S.C.) — It was held that in order for the Court to decide whether the CSC satisfied their obligation of disclosure, the Court must be fully informed as to what the informant told the warden. If the Court was to properly deal with this matter then the warden must file a supplementary affidavit containing the full information required, namely, where, when and how, and who told him what. If the informant's identity requires protection, then that should be stated and an explanation as to why given. If the warden seeks to maintain his position of non-disclosure, then the proper procedure would be to submit the information together with any explanation in a sealed envelope.

Gaudet v. Merchand (1994), 63 Q.A.C. 286 (Que.C.A), affirmed [1994] 3 S.C.R. 514, (sub nom. Gaudet v. Special Handling Unit Review Committee) 94 C.C.C. (3d) 1 — While the penitentiary authorities did have a duty to act fairly and to afford an inmate an opportunity to know the reasons for the transfer and an opportunity to be heard or to make representations on his behalf, there was no duty to provide the inmate with copies of the statements given by informers. The inmate had been provided with a reasonably detailed summary of the reasons for his transfer and the substance of what the authorities have been told about his involvement in the alleged escape plot. It was sufficient that the summary had been carefully framed to avoid identification of the sources, but did nonetheless provide more than a mere general statement of the inmate's involvement in the alleged escape plan. These were sufficient details to enable one to identify some of the features of the plan and the inmate's involvement.

Rowse v. Correctional Service of Canada (1994), 86 F.T.R. 262, [1994] F.C.J. No.1674 (F.C.T.D.) — In this case sufficient information had been provided to the applicant.

Armstrong v. Commissioner of Corrections (Can.) (1994), 79 F.T.R. 299, [1994] F.C.J. No.811 (F.C.T.D.) — The applicant was not provided with the exact identity of the source of some of the allegations made against him. The Court held that withholding the identity of the informants, as well as the details of their statements that would in all likelihood identify the source, was justified. The applicant was given enough information and knew the case he had to meet.

Johnston c. Centre régional de réception [1995] R.J.Q. 3000, A.Q. No.1414 (Q.S.C.) — An inmate's s7 Charter rights were violated where he was refused access to the complete report concerning his transfer. J was not given access to every document he had a right to.

Storry v. William Head Institution [1997] F.C.J. No.1768 (F.C.T.D.), (1997), 139 F.T.R. 122 — In this case, insufficient information was provided to the applicant.

Forrest v. Canada (Solicitor General) (1998), 154 F.T.R. 22, [1998] F.C.J. No.1483 (F.C.T.D.) — There was sufficient information available to the applicant and sufficient opportunity for him to make representations before the transfer decision was made.

Cartier v. Canada (Attorney General) (1998), 165 F.T.R. 209, [1998] F.C.J. No.1211 (F.C.T.D.), 1998 CanLII 8257 (F.C.) — C was provided with enough information to enable him to understand the reasons for his transfer and to enable him to make the representations he considered appropriate. The rules of procedural fairness, having regard to the circumstances, were respected.

Bisson v. Canada (Attorney General) [1998] F.C.J. No.1212 (F.C.T.D.), 1998 CanLII 8265 (F.C.) — The information provided to B was sufficient to comply with the rules of procedural fairness.

Dorscheid v. Kent Institution 39 W.C.B. (2d) 300, [1998] B.C.J. No.1866 (B.C.S.C.), 1998 CanLII 4576 (BC S.C.) — Although the warden had the authority to withhold information from D in order to protect the safety of confidential informants, the amount of information that was, in fact, withheld was far more than what was "strictly necessary." This was made clear from the documentation submitted to the court by the warden in defence of this application. These documents were considered by institutional staff in making their decisions on the security reclassification and involuntary transfer but were not previously disclosed to D. The documents proffered to the Court had been edited so that as much information as possible was provided while protecting the identity of their sources. The Court held that these documents could have been provided to D (in edited form) without having jeopardized the safety of any of the informants.

Hiebert v. Canada (Correctional Service) (1999), 182 F.T.R. 18, [1999] F.C.J. No.1957 (F.C.T.D.), 1999 CanLII 9184 (F.C.) [C.A. affirming [2001] F.C.J. No.297; Leave to appeal to the S.C.C. dismissed August 30 2001, [2001] S.C.C.A. No.227 - File No.28557] — Documents are not subject to production unless they are before the decision-maker at the time the decision was made. In undertaking a resolution of claims for non-disclosure, the Court adopted the two-stage approach employed in the context of section 37 CEA applications. In the first stage, the Court considers the competing claims for disclosure and non-disclosure on the basis of the affidavit evidence before it, but without reviewing the documents themselves. Only if the Court cannot resolve the issue at that stage does the Court advance to the second stage, which is the review of the documents.

Gravel v. Canada (Correctional Service) [1999] F.C.J. No.1569 (F.C.T.D.) — The Court held that the documentary evidence, which was laid out in some detail in the judgment, demonstrated that the applicant received the information necessary to submit his various grievances. As well, although certain documents refer to confidential information that for "obvious" reasons were not shared with G, the information given to him was nonetheless sufficient as he was given the gist of the reasons for all the decisions relating to him.

Zarzour v. Canada (Attorney General) [2000] F.C.J. No.103 (F.C.T.D.) — The Court was not persuaded that Z was provided with sufficient disclosure.

Marachelian v. Canada (Attorney General) (2000), 1 F.C. 17, 187 F.T.R. 238, [2000] F.C.J. No.1128 (F.C.T.D.) — The Court found that the refusal to reclassify and voluntarily transfer M was based upon an allegation that had not been shared with M and to which he did not have the opportunity to respond. Although the refusal to reclassify in this application did nothing more than maintain the status quo, the disclosure obligations and constraints ought to be the same as a case of involuntary transfer for disciplinary reasons. As a result, it was the Court's view that the failure to advise M of the substance of the allegations, so as to allow him to meet those objections, was a breach of M's rights to procedural fairness.

Harms v. Canada (Correctional Service) (2000), 195 F.T.R. 144, [2000] F.C.J. No.1706 (F.C.T.D.) — The information contained adequate detail regarding H's involvement in the riot at Kent, other disciplinary and criminal charges, the concern on the part of officials that H may create further disturbances at Kent, and in general, the belief that H's risk could not be properly managed at Kent, in order for H to be able to make representations.

Dupras v. Kent Institution [2001] F.C.J. No.968 (F.C.T.D.), 2001 FCT 632 (CanLII) — The test on transfer is merely the reasonableness and seriousness of the belief on which the decision was based and that the applicant must have participated in a meaningful way - not every allegation has to be disclosed to the applicant. Although the Court accepted that the reasons for decision contained certain factual inaccuracies that were not disclosed to the applicant, the Court concluded that it would not have been sufficient to change the result. As a result, the Court found nothing unreasonable in the Assistant Deputy Commissioner's decision and the application for judicial review was dismissed.

Ayotte v. Canada (Attorney General) [2001] F.C.J. No.5 (F.C.T.D.), 2001 CanLII 22114 (F.C.) — The only information disclosed regarding the alleged escape plan was the following: "On 1999-09-14, we received information from a police source (SPCUM) that Gilles Ayotte was planning to escape. The source is considered very reliable." The applicant argued insufficient disclosure. Citing Marceau J.A. in Gallant, the Court claimed that procedural fairness does not require that the applicant have as many particulars as in the case of a disciplinary charge. The application was dismissed.

Mousseau v. Drumheller Penitentiary [2001] A.J. No.1488 (Alta.Q.B.) — The applicant was not provided with sufficient information to enable him to know the case to be met. The following particulars were not addressed in the CSC's disclosure: a) What "series of events" occurred? b) Who was the other "offender"? c) Who was the "staff member"? d) Whose "private family visit" was the subject of the alleged bribe? E) Did the "staff member" make a written report containing the circumstances of the allegations? The notice should have contained as much detail as possible to enable the applicant to make an informed response.

— Notice

Lasalle v. Leclerc, Institution of Laval (1983), 5 Admin. L.R. 23, 37 C.R. (3d) 145 (F.C.T.D.) — The duty to act fairly was breached where an inmate was never given written notice of a transfer until after the decision had already been made.

R v. Chester (1984), 5 Admin. L.R. 111, 40 C.R. (3d) 146 (Ont.H.C.) — There had been a lack of procedural fairness regarding a transfer to the SHU where the inmate was provided with a misleading written notice. In this case, the notice suggested that the basis for the transfer was a particular incident whereas the subsequent reasons indicated that the inmate's total record had been considered in arriving at the decision. In order for an inmate to respond properly, a fair notice should include, at least, a comprehensive listing of the available material to be considered and a summary of the contents of such material.

Mitchell v. Crozier (1986), 1 F.T.R. 138,[1986] 1 F.C. 255 (F.C.T.D.) — A transfer decision was quashed because the board relied on matters not disclosed or made available to the inmate. The notice served failed to make reference to these matters. In the Court's view, it would not have been a burdensome inconvenience or possible detriment to prison authorities to provide the inmate with those details by attaching documents to the notice or supplying the gist of the information on the notice itself.

McCauley v. Ferndale Institution (1987), 15 F.T.R. 172, [1987] F.C.J. No.711 (F.C.T.D.) — A transfer decision was quashed where the Court found that the applicant had not been given adequate notice of what was being alleged against him, nor had he been given a fair opportunity to answer.

— Nature and timing of hearing

Pilon et al v Yeomans [1984] 2 F.C. 932 (F.C.T.D.) — There is nothing in the Act or Regulations which mandatorily requires a full scale hearing as a necessary prelude to an administrative decision to transfer a prison inmate from one security institution to another. The duty of fairness does not require that such a hearing be held.

McInroy v R et al (1985), 13 Admin. L.R. 8, [1985] F.C.J. No.448 (F.C.T.D.) — Where an inmate was transferred to the SHU, there was no requirement in either the Act or the Regulations stipulating that an inmate be granted an oral hearing before the SHU Review Committee.

Jamieson v. Canada (Commissioner of Corrections) (1986), 51 C.R. (3d) 155, 2 F.T.R. 146 (F.C.T.D.) — The requirement of fairness flows from s7 of the Charter. In regards to transfer decisions taken within the prison system, the duty to act fairly does not involve the requirement of a formal hearing.

Mitchell v. Crozier (1986), 1 F.T.R. 138, [1986] 1 F.C. 255 (F.C.T.D.) — The duty to act fairly does not entitle an inmate as of right to appear or be heard in person before the board on the matter of his transfer and reclassification.

Gaudet v. Merchand (1994), 63 Q.A.C. 286 (Que.C.A), affirmed [1994] 3 S.C.R. 514, (sub nom. Gaudet v. Special Handling Unit Review Committee) 94 C.C.C. (3d) 1 — While the penitentiary authorities did have a duty to act fairly, they nevertheless had no duty to grant an inmate an opportunity to cross-examine informants or the prison officials themselves. In a prison context, such a hearing would go considerably beyond procedural fairness into the realm of an unreasonable intrusion into the administration and security of the penitentiary. The danger posed to the safety of informers and the intolerable burden that would be placed on prison authorities constitute the basis of justification for not permitting an inmate who has suffered a loss of residual liberty to confront confidential sources and test their credibility by cross-examination.

Murray v. Canada (Correctional Service) (1995), 101 F.T.R. 84, [1995] F.C.J. No.1225 (F.C.T.D.) — While procedural fairness does not create a requirement of personal attendance in every case, whenever the process would not cause undue hardship to the administration of the correctional system, the inmate should be allowed to make representations when a decision affects his rights, interests or privileges. In this case, not only was M not informed of the date when his case would be reviewed, his counsel's request to be present with M remained unanswered. The Court held that it would not have created an undue burden for the administration to have informed M of the date and to have given him the opportunity to make written representations if not the right to be present. As a consequence, the requirements of procedural fairness were not satisfied.

Forrest v. Canada (Solicitor General) (1998), 154 F.T.R. 22, [1998] F.C.J. No.1483 (F.C.T.D.) — The CCR Regulations do not infringe s7 of the Charter by permitting transfers without a prior oral hearing.

— Right to counsel

Williams v. Canada (Correctional Service) — (1993), 15 Admin. L.R. (2d) 83, 19 C.R. (4th) 151, [1993] F.C.J. No. 21 (F.C.A.) - The authorities were under a positive duty both to inform W of his right to counsel and to provide him with a reasonable opportunity to exercise that right as soon as they had decided to place him in administrative segregation and to transfer him to the SHU. In this case, the denial of W's request to consult his lawyer could not be justified on the basis of the urgency of the situation.

Crews v. Canada (Correctional Service) (1994), 126 Sask.R. 181, [1994] S.J. No.396 (Sask.Q.B.), 1994 CanLII 4799 (SK Q.B.) — An inmate's s10(b) Charter rights were not infringed upon where he was permitted to make only one telephone call to his attorney before being transferred to the SHU on an emergency basis.

— Right to make representations (present proof or arguments) and to have them taken into consideration

Lasalle v. Leclerc, Institution of Laval (1983), 5 Admin. L.R. 23, 37 C.R. (3d) 145 (F.C.T.D.) — The duty to act fairly was infringed where an inmate was not given any chance to make representations prior to the decision to transfer him was made.

Jamieson v. Canada (Commissioner of Corrections) (1986), 51 C.R. (3d) 155, 2 F.T.R. 146 (F.C.T.D.) — Where there was no evidence that an inmate's reply had ever been taken into account by the decision-maker, or that the decision had been taken after consideration thereof, a decision to transfer was quashed. It should be clear that an inmate's response has been considered by the relevant decision-maker before a final decision is taken concerning a transfer.

Poirier v. Centre Federal de Formation (Comite Disciplinaire) et al (1988), 26 F.T.R. 215, F.C.J. No.1178 (F.C.T.D.) — An inmate was notified of a recommendation to transfer him to a particular medium security institution and submitted a written response opposing the transfer. Prison authorities then decided to transfer him to a different institution, classified as maximum security. The duty to act fairly was breached since the inmate was invited to offer his views on a transfer other than the one that was adopted. The applicant was misled because he was not given an opportunity to present his views on the transfer that actually took place.

Fitzgerald v. Canada (Correctional Service) [1990] B.C.J. No.2873 (B.C.S.C.), 1990 CanLII 1499 (BC S.C.) — An invitation to give the police a statement in the course of their criminal investigation is not the same as granting an inmate the opportunity to respond to the allegations against him in the context of a correctional decision regarding a proposed transfer. In this case, the inmate was not provided with as much substance and detail of the allegations against him as possible to allow him to know the case against him, and not given an opportunity to respond before the decision respecting his transfer was made.

Kelly v. Canada (Correctional Service) (1992), 56 F.T.R. 166, [1992] F.C.J. No.720 (F.C.T.D.) — In decisions involving the involuntary transfer of an inmate there is a requirement that the inmate be given an opportunity to respond to the allegations made against him. However, in cases involving an application for voluntary transfer made by an inmate himself, there is no such procedural requirement.

Faulkner v. Canada (Solicitor General) (1992), 62 F.T.R. 19, [1992] F.C.J. No.1149 (F.C.T.D.) — F was properly served with the notice of transfer and afforded an opportunity to respond. He indicated he would respond within forty-eight hours but did not do so until six days after the final decision to transfer him had been made. In these circumstances, the lack of consideration of F's submissions by the initial decision-maker did not constitute a breach of the duty to act fairly. Thereafter, the warden explained to F that the proper recourse was for F to submit a grievance in accordance with the CDs.

Dumas v. Gilbert et al (1992), 59 F.T.R. 66, [1992] F.C.J. No.1145 (F.C.T.D.) — The fact that the decision-maker stated within his written decision (and repeated in his affidavit to the Court) that he had taken the inmate's response into consideration was enough of a basis for the Court to hold that there was no doubt that inmate's response was indeed taken into consideration. The application was dismissed.

Lee v. Canada (Correctional Service) (1993), 17 Admin. L.R. (2d) 271, 67 F.T.R. 54, [1993] F.C.J. No.759 (F.C.T.D.) — The 48-hour provision in the CDs for the filing of a response should be treated, at most, as a guideline. Inmates must be given a reasonable opportunity to file a meaningful response. In non-emergency situations, a few extra days may be involved. Where this cannot be accommodated, there is an obligation on the official refusing the extension to give precise reasons as to why it cannot be accommodated. A general assertion about the risk to safety and security is insufficient. In this case, the decision to refuse an extension of time was unnecessary and arbitrary and had the result of denying to the applicants the opportunity to make effective responses. It is not sufficient for inmates to be given the right to make submissions. The decision-maker must consider the submissions. The requirement that the decision-maker shall indicate that consideration has been given to an inmate's response is one that is not satisfied by a simple statement that consideration was given. If submitted statements of an applicant are not believed, then some explanation should be given as to why they are not.

Beaucage v. Canada (Correctional Service) (1993), 60 F.T.R. 176, [1993] F.C.J. No.24 (F.C.T.D.) — The Court was not persuaded that merely because a recommendation by penitentiary staff against an inmate is changed to one in favour of an inmate because of the discovery of new facts, which change of recommendation the warden does not accept, that there is a breach of natural justice if the inmate is not given an opportunity to both know the warden's reasons and respond thereto. In order for an applicant to succeed on such an argument, the new circumstances which came to light after the previous recommendation must be significant in that they fundamentally change the applicant's understanding of the nature of the case against him. In such circumstances, if the applicant is not given a new opportunity to respond, he has in effect been denied natural justice.

Evans v. Lusk - [1993] B.C.J. No.2802 (B.C.S.C.), 1993 CanLII 441 (BC S.C.) - The applicant pointed out that there was no mention in the reasons of the fact that he was found not guilty in disciplinary court of one of the alleged infractions. Citing Lee v. Canada (Correctional Service), [1993] F.C.J. No.759 (F.C.T.D.), he argued that this omission indicated that the CSC failed to give this significant fact any consideration. The Court was of the view that the reasons given by the warden and Assistant Commissioner demonstrate that consideration was given to the submissions. They not only stated in writing that consideration was given to the submissions, but also dealt specifically with those submissions within their reasons. The CSC fulfilled its requirement to act fairly.

Murray v. Canada (Correctional Service) (1995), 101 F.T.R. 84, [1995] F.C.J. No.1225 (F.C.T.D.) — While procedural fairness does not create a requirement of personal attendance in every case, whenever the process would not cause undue hardship to the administration of the correctional system, the inmate should be allowed to make representations when a decision affects his rights, interests or privileges. In this case, not only was M not informed of the date when his case would be reviewed, his counsel's request to be present with M remained unanswered. The Court held that it would not have created an undue burden for the administration to have informed M of the date and to have given him the opportunity to make written representations if not the right to be present. As a consequence, the requirements of procedural fairness were not satisfied.

Forrest v. Canada (Solicitor General) (1998), 154 F.T.R. 22, [1998] F.C.J. No.1483 (F.C.T.D.) — Regarding the denial of the request for voluntary transfer from a higher security institution to a lesser security institution, there is no requirement that the applicant be given an opportunity to respond to comments of the decision-maker, other than filing a grievance.

Gravel v. Canada (Correctional Service) [1999] F.C.J. No.1569 (F.C.T.D.) — The applicant had a duty to show that the CSC did not consider all the evidence before it, including any representations made. In this case, each decision expressly mentioned that G's representations were taken into account and there was nothing in them that conflicted with particular points of the evidence. The fact a decision does not allow a party's claim does not necessarily mean that the decision-maker did not take the representations they may have made into account.

— Right to have the matter decided on the basis of the evidence

Bruce v. Canada (Attorney General) (1992), 5 Admin. L.R. (2d) 258, 13 C.R. (4th) 384 (N.B.C.A.) [reversing (1991) 2 Admin. L.R. (2d) 26, 7 C.R. (4th) 93 (N.B.Q.B.)] — The judge hearing the notice of application intimated that s14 of the Penitentiary Services Regulations mandated that the whole of an inmate's file or records had to be carefully reviewed before any involuntary transfer could be made. Reversing that decision, the New Brunswick Court of Appeal stipulated that in this case, the administrative authorities had to present sufficient evidence to the decision-maker to persuade him that it was in the best interests of the institution and the inmates in general that the transfers take place. This was not a question of disciplining inmates where other considerations might come into play. This was a question of security and being able, within the facility, to contain, control and manage what the CSC found to be an unacceptable situation. Under the circumstances, there was no reason why an inmate's file should have to be completely or entirely reviewed as held by the judge hearing the application. S14 of the Regulations should be interpreted to mean that the decision-maker must carefully review all the relevant and material data of an inmate's file pertinent to the issue under consideration.

Williams v Canada (Correctional Service) (1993), 15 Admin. L.R. (2d) 83, 19 C.R. (4th) 151, [1993] F.C.J. No. 21 (F.C.A.) — No "progress summary" was ever prepared or submitted to the Assistant Deputy Commissioner as mandated by the provisions of Commissioner's Directive 540. In this case, there was evidence in W's file of a 'Progress Report' highlighting positive behavior written subsequent in time to all of the alleged incidents mentioned in the Notices. The Assistant Deputy Commissioner reached his decision on the basis of information relating to incidents that we now know, as a result of the dropping of criminal charges, to be wrong. He also reached it on the basis of allegations relating to previous incidents but without considering more up-to-date material which was highly favorable to the appellant and which was in the exclusive control of correctional authorities. Such material, or a summary thereof, was required to be considered. In such circumstances the decision cannot be allowed to stand.

Neill v. Regional Transfer Board (Prairies) et al (1994), 74 F.T.R. 14, [1994] F.C.J. No.86 (F.C.T.D.) [affirmed C.A. (1996) 198 N.R. 318, [1996] F.C.J. No.645] — N argued that the "investigation" of the allegations was superficial and incomplete. Although the untested work of an ex-inmate cannot reasonably be preferred to that of the applicant and two fellow inmates without some attempt by the prison authorities to verify the truthfulness of the informant's allegations, in this case, however, the Court held that it could not be said that the credibility of the informant was untested. While the applicant would have wished for a more thorough investigation, several details emanating from the informant's story, coupled with statements made by N against his interest, pointed towards an acceptable level of credibility. Although the decision of the Board does not refer to the evidence submitted by N's fellow inmates, it nevertheless could not be concluded that that evidence was not considered. Even though there was some dispute as to the precise meaning of N's statements, the Court concluded that it could not be construed that the CSC's interpretation was unreasonable. The application was dismissed.

Légère v. Canada (1997), 133 F.T.R. 77, [1997] F.C.J. No.749 (F.C.T.D.) — Although obliged to consider the recommendations of the applicant's Case Management Team and of a psychologist, it was completely within the discretion of the Board to decline to follow these recommendations. The applicant failed to satisfy the Court that the Board's decision was based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it. The application was dismissed.

St-Amand v. Canada (Attorney General) (2000), 147 C.C.C. (3d) 48 (Que.C.A.) (French version) — The record in this case showed that CSC officials complied with the relevant statutory requirements of an emergency transfer. While the final decision-maker reviewed all the documentation included in the record except for Preventative Security Reports, this omission was insufficient alone to invalidate his decision due to the quantity of information that he otherwise reviewed. The duty of the decision-maker was to ensure that information upon which he relied to act was trustworthy and convincing and to decide whether it was fair to use it in coming to his decision. The Court of Appeal was of the opinion that he fulfilled his duty and consequently that there was no breach of the duty to respect procedural fairness at the time the transfer decision was made.

— Provision of reasons

Jamieson v. Canada (Commissioner of Corrections) (1986), 51 C.R. (3d) 155, 2 F.T.R. 146 (F.C.T.D.) — Where there was no evidence to indicate that an inmate was adequately informed as to the reasons for his transfer to enable him to respond to them, the decision was quashed. In the absence of some evidence as to why this could not be done, the inmate should have been given the specific reasons for the intended transfer.

Seymour v. Canada (Regional Director, Operations, Pacific Region Correctional Service) (1987), 17 F.T.R. 15, [1987] F.C.J. No.1170 (F.C.T.D.) — A transfer decision was quashed when prison authorities failed to properly respond to an inmate's request for the provision in writing of further details of the reasons for a transfer. The Court held that the duty of fairness required that officials provide sufficient reasons in writing and that it was not necessary to decide, in this case, whether oral communication of the information was sufficient compliance.

Bovair v. Canada (Regional Transfer Board) (1986), 2 F.T.R. 185, [1986] F.C.J. No.148 (F.C.T.D.) [Reversed at FCA (1988), 88 N.R. 204] — The Trial Division held that when a prisoner is sent to segregation for administrative or disciplinary reasons, the general duty of fairness and the Charter require that he be apprised of the reasons for the decision and must be afforded a reasonable opportunity of replying, but the court was not convinced that the same principle applied to transfers from medium to maximum security. On appeal, the Federal Court of Appeal overturned the decision of the Trial Division without reasons.

Brooks v. Canada (Correctional Service) [1991] B.C.J. No.381 (B.C.S.C.) — There was no breach of the law where the written reasons of a decision to transfer were not as articulate as they may have been.

See Beaucage v. Canada (Correctional Service) (1993), 60 F.T.R. 176, [1993] F.C.J. No.24 (F.C.T.D.) [located above - right to make representations]

— Right to have a decision made by the designated decision-maker

R v. Chester (1984), 5 Admin. L.R. 111, 40 C.R. (3d) 146 (Ont.H.C.) — Prison authorities breached the duty to act fairly when the decision to transfer was not made by the person authorized to make it. A Commissioner's Directive required that the Deputy Commissioner make transfer decisions. In this case, the decision was made by National SHU Review Committee, which was supposed to act solely in an advisory capacity to the Deputy Commissioner. The Deputy Commissioner was not even present when the decision was made, and in quashing the decision, the Court held that the ratification by the Deputy Commissioner after the event could not correct this defect.

Dorscheid v. Kent Institution 39 W.C.B. (2d) 300, [1998] B.C.J. No.1866 (B.C.S.C.), 1998 CanLII 4576 (BC S.C.) — The statutory authority to effect an involuntary transfer is granted by s13 of the Regulations only to those staff members named by Commissioner's Directive. Section 7 of CD 540 grants such authority to the institutional head, but does not, in the Court's opinion, authorize him or her to delegate his or her decision-making authority to subordinate staff members.

— Bias and lack of independence

Lee v. Canada (Correctional Service) (1994), 24 Admin. L.R. (2d) 205, 33 C.R. (4th) 328, 80 F.T.R. 90, [1994] F.C.J. No.889 (F.C.T.D.) — This was a case where the CSC transferred an inmate a second time for the underlying alleged event after the first transfer decision was quashed. Since the original transfer decision was considered, and upheld, by the Commissioner's rejection of the applicant's third and final grievance of that decision, the Court held that permitting the Deputy Commissioner to now make a decision on the second attempt to transfer creates a reasonable apprehension of bias. This is so because there is serious doubt that a subordinate can approach the question of altering his superior's prior decision with the objectivity and independence that is required for a fair decision. The application was allowed and the decision to transfer quashed.

Substantive Review of the Grounds for Decision

Collin v. Lussier (1983), 6 C.R.R. 89, [1983] 1 F.C. 218 (F.C.T.D.)— A transfer decision was quashed where the Court, in the circumstances, found the transfer to be disguised punishment for an inmate's activities as a prisoner legal affairs worker which had become embarrassing to the prison administration.

Lasalle v. Leclerc, Institution of Laval (1983), 5 Admin. L.R. 23, 37 C.R. (3d) 145 (F.C.T.D.) — A decision to transfer an inmate may have been made unfairly where it was based on a single incident of drunk and disorderly conduct, which would hardly make the inmate a danger to the security of the institution.

Hay v. Canada (National Parole Board) (1985), 13 Admin. L.R. 17, 21 C.C.C. (3d) 408, 18 C.R.R. 313 (F.C.T.D.) — A prisoner who had earned a transfer to minimum security was transferred back to a maximum security institution due to a change in policy affecting a class of prisoners. The Court quashed the decision holding that the transfer back to the penitentiary as a result of a policy, and due to no fault or misconduct on the part of the prisoner, was arbitrary and unfair.

Chartrand v. Villeneuve (1987), 14 F.T.R. 285, F.C.J. No.558 (F.C.T.D.) — An inmate challenged the decision to transfer him from one maximum-security institution to another. The transfer was ordered on the basis that the warden had reason to believe that there existed a serious and probable risk of conflict between the inmate and a guard at the institution. The application was dismissed on the grounds that such a decision was not taken arbitrarily, in bad faith, or in a capricious manner.

McIlvride v. AG Canada, AGBC and Director of Kent Institution — Unreported, November 3, 1987, No. CC871785, Vancouver (BCSC) — It was within the prison authorities' jurisdiction to transfer back to the SHU an inmate who was on probation in a maximum-security institution on the basis of his alleged participation in an assault despite the fact that the inmate had been acquitted of criminal charges relating to the same incident.

Dean v. McGregor (1988), 22 F.T.R. 208, [1988] F.C.J. No.718 (F.C.T.D.) — The transfer of an inmate to the SHU was not arbitrary or unreasonable where the inmate had requested a transfer to a reasonable alternative, namely the Regional Psychiatric Centre. The Court was satisfied that prison authorities considered fully the reasonable alternative and decided against it.

Demaria v.Canada (Regional Transfer Board) (1988), 18 F.T.R. 68, 62 C.R. (3d) 248, [1988] 2 F.C. 480 (F.C.T.D.) — To base a decision to involuntarily transfer an inmate on the fact that he had a telephone conversation with his Member of Parliament amounted to an arbitrary exercise of administrative authority. It was repugnant for prison officials to conclude that the communication of information regarding prison conditions to a Member of Parliament could be considered inciteful.

Koehler v. Warkworth Institution (1991), 45 F.T.R. 87, [1991] F.C.J. No. 246 (F.C.T.D.) — A transfer decision was quashed where it appeared, on a balance of probabilities, to be based on invalid disciplinary convictions.

Malette v. Canada (Commissioner of Corrections) (1991), 48 F.T.R. 238, [1991] F.C.J. No.942 (F.C.T.D.) — There had been no excess of jurisdiction or violation of an inmate's Charter or common law rights where the warden refused a voluntary transfer request to the minimum security facility of the Prison for Women. This was so despite the fact that the female inmate, who was serving a life sentence with a parole ineligibility of twenty-five years, had been classified as minimum security. The grounds for refusal were based upon a policy whereby an inmate serving a life sentence could only be considered for transfer to the minimum-security facility about two years prior to parole eligibility. The policy had been put in place to deal with a lack of space at the facility.

Faulkner v. Canada (Solicitor General) 1992), 62 F.T.R. 19, [1992] F.C.J. No.1149 (F.C.T.D.) — The CSC has the power to rescind, and then re-initiate, transfer decisions once it is established that the initial decision was improperly made. Provided that power is exercised in accordance with the obligation to act fairly towards inmates, no grounds will exist which would warrant judicial intervention into the second attempt to execute the transfer. No significance was placed on the fact that an inmate's personal effects were not transferred back to the originating institution after the initial transfer was set aside.

Beaucage v. Canada (Correctional Service) (1993), 60 F.T.R. 176, [1993] F.C.J. No.24 (F.C.T.D.) — The Court did not consider unreasonable a decision to transfer B on the basis that he participated in an alleged conspiracy to bring weapons and ammunition into the prison where it later became known that the alleged conspiracy was itself a scam. This was so despite the fact that the inmate who convinced B to get involved in the "plan" was the person who concocted the scam in the first place for the purpose of later passing on the information about B in order to win favour with prison authorities and "buy" himself a transfer to a lesser security prison.

Fitzgerald v. William Head Institution [1994] B.C.J. No.1534 (B.C.S.C.) — The transfer decision in this case was patently unreasonable. The Court found it troubling that the Assistant Deputy Commissioner would be concerned about the level of risk F would pose to the community should he escape when it was well documented that F's Case Management Team clearly believed that he merited a transfer to a minimum security facility. The Court concluded that the alleged plan was so inept as to put its existence into doubt. The Court was not convinced that the Assistant Deputy Commissioner was justified in summarily dismissing F's explanation. While the informant was held to be reliable, nothing in the informant's background suggested to the Court that he was a person to be relied upon. Furthermore, given that the CSC would not provide the name of the informant to F and withheld a certain amount of information, the Court found that it was hardly open to F to provide evidence that would indicate the informant's motivation to lie.

McEwan v. Mission Institution [1994] B.C.J. No.2712 (B.C.S.C.) — It was not unreasonable to transfer an inmate on an emergency basis on the grounds of his possible implication in the drug overdose of another inmate despite the fact that there continued to be an ongoing investigation that had yet to conclusively demonstrate his involvement.

Murray v. Canada (Correctional Service) (1995), 101 F.T.R. 84, [1995] F.C.J. No.1225 (F.C.T.D.) — New policies should not apply to a process that has concluded that an inmate qualified for a transfer to a lower security institution. In the context of inmate transfers, a positive decision may be altered if there is evidence of misconduct on the part of the inmate before the execution of the transfer. However, with no evidence of change in behavior on the part of the applicant, it is arbitrary to abandon a positive evaluation based solely on the introduction of new policies.

McGale v. Kent Institution [1995] B.C.J. No.772 (B.C.S.C.), 1995 CanLII 2114 (BC S.C.) — An inmate was involuntarily transferred on the basis of information that he was deeply involved in the drug culture at his prison. His decision to remove himself from voluntary urinalysis was apparently held against him despite the fact that he consistently tested negative. The authorities were not convinced that the inmate's pronouncements or conduct was credible. The acting warden who initiated the transfer stated that he would be granted another opportunity to integrate drug free if he shows commitment and sincerity. The judge stated that he trusted the inmate would be given that opportunity. In the meantime, the Court could not conclude that the decision to transfer was patently unreasonable.

Laking v. Canada (1995), 136 Sask.R. 24, [1995] S.J. No.571 (Sask.Q.B.), 1995 CanLII 6018 (SK Q.B.) — Where an applicant was transferred on the basis of a disciplinary conviction and sought relief by way of habeas corpus in the provincial superior courts, the actions of prison officials were not held to be in the absence or in excess of their jurisdiction despite the fact that the provincial court judge hearing the application suggested that the underlying disciplinary conviction was invalid. This was so because the application for habeas corpus, even with certiorari in aid, did not empower the provincial superior court to proceed as if the conviction was invalid. As it stood, the conviction entered by the Independent Chairperson was valid and effective and remained so until a court of competent jurisdiction (in this case the Federal Court) determined otherwise. The provincial court had recourse to certiorari to review the decision of the penitentiary officials to place the applicant in the SHU, but not to review the decision of the Independent Chairperson.

Crews v. Canada (Correctional Service) (1994), 126 Sask.R. 181, [1994] S.J. No.396 (Sask.Q.B.), 1994 CanLII 4799 (SK Q.B.) — An inmate's involvement in activities preventing the reopening of the prison during a period of lockdown was sufficient grounds for an involuntary transfer. The subsequent breaking of his cell door window and the window inside his of his cell, while in a segregation unit, and the throwing of human feces and urine from under his cell door onto the cell range, were proper grounds for the conversion of the original transfer recommendation to an order for emergency transfer.

Bédard v. Ste-Anne-Des-Plaines Institution (1996), 116 F.T.R. 200, [1996] F.C.J. No.779 (F.C.T.D.) [C.A. affirming 148 F.T.R. 159] — Since the decision appeared to be based on an important piece of evidence in the file, namely the Progress Summary Report, it cannot be said that the decision was based on an erroneous finding of fact or made in a perverse or capricious manner.

Storry v. William Head Institution [1997] F.C.J. No.1768 (F.C.T.D.), (1997), 139 F.T.R. 122 — In assessing whether the decision was patently unreasonable, the Court must consider the nature of the allegations made against the applicant, and the nature and quality of the evidence supporting those allegations. In this case, the warden had determined the information regarding the alleged event reliable but provided absolutely no explanation as to why this information was considered reliable, except for the fact that the RCMP also determined that it was so. Given the fact that the informant had recanted allegations made against another, and in light of the fact that certain details provided by the informant respecting the alleged event could not have been carried out, the Court claimed that it would not have been unreasonable to expect that some further independent investigation of the facts would have been undertaken to validate the informant's story. The decision to transfer was patently unreasonable.

Zarzour v. Canada (Attorney General) [2000] F.C.J. No.103 (F.C.T.D.) — On the evidence submitted, the Court found that the CSC had practically no information to suggest that Z could have been involved in the alleged incident. The court was not persuaded that the allegations were based on anything more than suspicion and was unable to conclude that Z's behavior jeopardized the safety and security of the institution. As such, it was doubtful whether the grounds on which the decision was based were reasonable and serious. The application for judicial review was allowed.

Harms v. Canada (Correctional Service) (2000), 195 F.T.R. 144, [2000] F.C.J. No.1706 (F.C.T.D.) — As for the argument that the grounds for transfer from Kent to the SHU were unreasonable, H relied heavily on the fact that his previous transfer from Mission to Kent had been declared unlawful. Since the CSC's documentation indicates that the main consideration for confirming the recommendation for transfer was H's behavior during his stay at Kent, H could not succeed by simply relying on the fact that his original transfer to Kent was unlawful. H also submitted that even if all the allegations made about him in respect to his conduct during the riot at Kent were true, they do not, in light of the "conduct code," justify the decision to confirm the transfer to the SHU. H's argued that he feared for his physical safety during the riot and in the days that followed. To avoid being harmed he took part in events to the limited extent that he could within his cell. The Court held this submission to be untenable. The application for judicial review was dismissed.

St-Amand v. Canada (Attorney General) - (2000), 147 C.C.C. (3d) 48 (Que.C.A.) — In allowing the petition, the superior court judge ruled that there was no emergency because the initial intent of the prison authorities was to have S placed in a protective segregation unit. That would have entitled him to disclosure of the alleged facts and allowed him to present his own arguments. It was the judge's view that the argument that segregation units were occupied was not sufficient to justify an immediate transfer, and thus the transfer was illegal. The Court of Appeal reversed, asserting that the court record showed that CSC officials had the intent of transferring S whether by regular procedure or by emergency procedure and that the grounds for transfer raised were well founded. The non-availability of segregation units was not the ground underlying immediate transfer, but rather the factor that contributed to creating an emergency situation. The decision of the CSC was thus legal and it could not be quashed merely because the superior court judge would have ruled differently.

Bonamy v. Canada (Commissioner of Corrections) (2000), 198 Sask.R. 252, [2000] S.J. No.588 (Sask.Q.B.), 2000 SKQB 385 — The CSC exceeded its jurisdiction under s28 of the CCRA when it transferred an inmate to a penitentiary approximately 2000 km from his home community, without any justification for doing so. Such a transfer resulted in a confinement of B far more severe than contemplated by the CCRA. It denied him easy access to his family and friends and to that extent it constituted a form of isolation that s28(b) seeks to avoid. One of the underlying intentions of s28(b) is to facilitate re-conciliations and foster the ultimate re-entry of an inmate into the community where he or she intends to live. Logic dictated that an inmate's presence in his home community creates a more opportune environment for fostering re-conciliations than in an institution 2000 km away.

May v. Ferndale Institution 2001 BCSC 1335, [2001] B.C.J. No.1939 (B.C.S.C.) — In regards to the question of whether the transfers were motivated solely by the arbitrary application of a general policy, the Court held that it was true that each of the decisions resulted from a review apparently prompted by a general instruction from headquarters, but that, in itself, is not objectionable so long as there has been a true review of each inmate's case in light of the statutory criteria. In this case, a review of each file indicated that the responsible officials considered each case on an individual basis and upon its own singular merits. The decisions in each case were reasoned and based upon specific concerns with each inmate. The petitions were dismissed.

Tan v. William Head Institution [2001] B.C.J. No.2219, 2001 BCSC 1454 (B.C.S.C.) — Where an inmate was involuntarily transferred on the basis of his refusal to enroll in a violent offender program contrary to the recommendations of his case management team and a psychological assessment, it was held that the decision was not made in the absence of or in excess of the jurisdiction of the decision-maker.

— Fettering of discretion

Brooks v. Canada (Correctional Service) [1991] B.C.J. No.381 (B.C.S.C.) — The applicant contended that the decision-maker fettered his discretion by relying on the decision of the Parole Board and others rather than on his own independent judgment in approving an involuntary transfer. The Court pointed to two relevant principles. First, a tribunal entrusted with a discretion, disables itself from exercising that discretion in a particular case by the prior adoption of a general policy. Second, a tribunal authorized to make a decision cannot fetter its discretion in reaching that decision by adopting a policy of another body while all along declaring the policy of the other body as its own. In this case, there was no fettering of discretion. On the evidence, it could not be concluded that the decision-maker blindly applied general policy and paid no attention to the entreaties of B. Nor did the decision-maker, in exercising his discretion, adopt the views of the Parole Board in place of his own.

Marachelian v. Canada (Attorney General) (2000), 1 F.C. 17, 187 F.T.R. 238, [2000] F.C.J. No.1128 (F.C.T.D.) — The CSC cannot avoid its obligations to inmates by means of an agreement with third parties. The CSC's obligation to comply with subsection 27(2) is qualified only by subsection 27(3) and not by any contractual arrangements that the CSC may make with other agencies. Thus the CSC was not entitled to withhold the information solely on the basis that it promised the RCMP or CSIS that it would not disclose that information without their consent. The application for judicial review was allowed.

Commissioner's Directives and Standard Operating Practices

R v. Chester (1984), 5 Admin. L.R. 111, 40 C.R. (3d) 146 (Ont.H.C.) — It is conceded that Commissioner's Directives do not have the force of law, and if any conflict exists between a directive and the Act of regulations, the directive must give way. Absent a conflict, they are clearly binding.

Hnatiuk v. Canada (1987), 12 F.T.R. 44, [1987] F.C.J. No.624 (F.C.T.D.) — The duty to act fairly was not breached where prison authorities failed to fully complete the "Involuntary Transfer Check List" as prescribed by the "Instructions".

Poirier v. Centre Federal de Formation (Comite Disciplinaire) et al (1988), 26 F.T.R. 215 (F.C.T.D.) — The failure to implement the Commissioner's Directives to the letter is not fatal, since the Commissioner's authority to issue directives does not derive from the Act but simply from his administrative capacity. However, it is important to ensure that there is no breach of the duty to act fairly.

Kelly v. Canada (Solicitor General) (1992), 54 F.T.R. 75, [1992] F.C.J. No.407 (F.C.T.D.) — Where prison officials were in breach of a rule set out in the Commissioner's Directive, requiring them to approve or deny a voluntary transfer request within 45 days of receipt of the application, due to an administrative backlog, the Court held that it should not intervene unless there is evidence of bad faith or overt dilatoriness.

Leprette v. Canada (Correctional Service, Regional Transfer Board) (1992), 58 F.T.R. 101, [1992] F.C.J. No.1023 (F.C.T.D.) — CDs do not carry the force of law, and therefore confer no rights upon an inmate, nor is any duty to adhere to the CDs owed by the Corrections staff to the inmates. They are rules directed towards internal procedure, designed to facilitate the administration of the penitentiary system. However, this does not mean that CDs can be disregarded without consequences. Where compliance with a CD would have brought about a different verdict, then non-compliance with that CD could very well be sufficient ground upon which to quash an impugned decision.

Williams v Canada (Correctional Service) (1993), 15 Admin. L.R. (2d) 83, 19 C.R. (4th) 151, [1993] F.C.J. No. 21 (F.C.A.) — Although it is common ground that the CDs do not have the force of law, it describes the progress summary as being mandatory to the decision-making process. In this case no "progress summary" was ever prepared or submitted to the Assistant Deputy Commissioner as mandated by the provisions of Commissioner's Directive 540. Given the contents of CD 540, the CSC can hardly contend that the progress summary would not have been relevant to the decision made by the Assistant Deputy Commissioner. Such material, or a summary thereof, was required to be considered. In such circumstances the decision cannot be allowed to stand.

Lee v. Canada (Correctional Service) (1993), 17 Admin. L.R. (2d) 271, 67 F.T.R. 54, [1993] F.C.J. No.759 (F.C.T.D.) — In a case where strict adherence to a CD by the decision-maker was to an inmate's disadvantage, the Court held that the CDs themselves do not have the force of law. The 48-hour deadline employed by the acting warden was set out in the CDs. While there may well be good reason for a 48-hour deadline for the filing of responses by inmates in some cases, the 48-hour provision should be treated, at most, as a guideline.

Security Classification

Service to classify each inmate

30. (1) The Service shall assign a security classification of maximum, medium or minimum to each inmate in accordance with the regulations made under paragraph 96(z.6).

Service to give reasons

(2) The Service shall give each inmate reasons, in writing, for assigning a particular security classification or for changing that classification.

Subclassification

(3) Within the maximum and medium security classifications, the Commissioner may assign an inmate to a subclassification in accordance with the regulations made under paragraph 96(z.6).

Commissioner to give reasons

(4) The Commissioner or the staff member designated by the Commissioner shall give each inmate reasons, in writing, for assigning them to a subclassification or for changing that subclassification.

1992, c. 20, s. 30; 2012, c. 1, s. 59.

Previous Version

Corresponding Regulations: Sections 17-18 Security Classification

Editorial Note — This section of the Act and sections of the Regulations should be considered in conjunction with previous sections 28-29 of the Act and s1116 of the Regulations annotated above.

This section merely sets out the overall framework of security classification, namely minimum, medium or maximum, subject to the factors setout in s17 that they must take into account and according to the further criteria set out in the Regulation 18, that spell out the further basic categories of institutional adjustment, escape risk and risk to the public in the event of an escape. Note that one has to be rated a “low” risk in all three categories to achieve a “minimum” classification.

Regard must also be had to the previous sections 28 and 29 and the cases referred to there. Note that s29 the “transfer” power, is expressly made subject to s28 and the Regulations and it follows that s30 is also informed by and subject to s28 factors Practically, the information gathered pursuant to s17 of the regulations, is categorized under s18 of the regulations and then the broader category determined under s30 of the Act. Then the s28 criteria or factors are to be applied and taken into account before a transfer takes place under s29, and if one does, it must be at least in accordance with the process set out in the regulations s11 to 16.

Judicial Consideration —

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Murray v. Canada (Correctional Service) (1995), 101 F.T.R. 84, [1995] F.C.J. No.1225 (F.C.T.D.) — In reviewing the statutory scheme, particularly sections 28 and 30 of the CCRA and section 18 of the Regulations, the Court held that the SHUs are necessary to provide for the protection of the public which includes staff and other inmates. The existence of the SHU is legal.

Légère v. Canada (1997), 133 F.T.R. 77, [1997] F.C.J. No.749 (F.C.T.D.) — It is important to stress that the fact that subsection 30(1) of the Act only prescribes three security classifications in no way precludes the existence nor impugns the legality of enhanced security facilities such as the SHU. This fact was recently confirmed in Murray v. Canada (Correctional Service, SHU National Review Board Committee), [1996] 1 F.C. 247 (F.C.T.D.).

Dorscheid v. Kent Institution 39 W.C.B. (2d) 300, [1998] B.C.J. No.1866 (B.C.S.C.), 1998 CanLII 4576 (BC S.C.) — The procedural rights guaranteed to an inmate by the Act or Regulations upon a security reclassification are more sparse than for an involuntary transfer. Those rights include a right to receive written reasons for the decision on reclassification pursuant to s30(2), and a right to disclosure of the information considered in the taking of the decision after the decision has been taken pursuant to s27(2) subject to s27(3). In contrast to an involuntary transfer, neither the Act nor the Regulations contain any right for the inmate to make representations prior to a decision on security reclassification. This also means that s27(1) of the Act has no application to a decision on security reclassification, and an inmate has no statutory right to a hearing prior to a decision on security reclassification. If any such right exists, it must arise either at common law or from the Charter.

Pitre v. Canada (Attorney General) (1999), 160 F.T.R. 42, 255 N.R.369, [1999] F.C.J. No. 143 (F.C.T.D.) — The French version of s18 of the Regulations differs from the English version. According to the English version, in order to be classified as minimum security, an inmate must meet the dual requirements of paragraphs 18(c)(i) and (ii) because Parliament used the word “and.” The French version, by using the word “soit” [or], requires that an inmate meet just one of the criteria set out in s18(c) to be classified as minimum security. The two versions are irreconcilable and the Court held that Parliament’s intent is better conveyed by the English text. The foremost goal of the CSC is to protect the public. It is therefore reasonable that an inmate meet the greatest number of criteria possible in order to be classified as minimum security, and that his classification be raised a soon as he no longer lives up to one of those criteria.

St-Amand v. Canada (Attorney General) (2000), 147 C.C.C. (3d) 48 (Que.C.A.) — In the case of assignment or change of the security classification, Parliament did not provide for the inmate having the opportunity to present his observations prior to the decision. The very nature of a prison institution requires officers to make “on the spot” decisions and judicial review should therefore be exercised with restraint. The fact that a decision, due to its nature or its urgency, may be taken without notice and without prior hearing does not mean that there necessarily has been a failure to grant a fair hearing. While the decision-maker who confirmed the transfer did not have the power to change S’s security classification, a decision that the transfer was unjust would have necessarily required a reassessment of the security classification.

Administrative Segregation

Purpose

31. (1) The purpose of administrative segregation is to maintain the security of the penitentiary or the safety of any person by not allowing an inmate to associate with other inmates.

Duration

(2) The inmate is to be released from administrative segregation at the earliest appropriate time.

Grounds for confining inmate in administrative segregation

(3) The institutional head may order that an inmate be confined in administrative segregation if the institutional head is satisfied that there is no reasonable alternative to administrative segregation and he or she believes on reasonable grounds that

  • (a) the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person and allowing the inmate to associate with other inmates would jeopardize the security of the penitentiary or the safety of any person;
  • (b) allowing the inmate to associate with other inmates would interfere with an investigation that could lead to a criminal charge or a charge under subsection 41(2) of a serious disciplinary offence; or
  • (c) allowing the inmate to associate with other inmates would jeopardize the inmate’s safety.

1992, c. 20, s. 31; 2012, c. 1, s. 60.

Previous Version

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Considerations governing release

32. All recommendations to the institutional head referred to in paragraph 33(1)(c) and all decisions by the institutional head to release or not to release an inmate from administrative segregation shall be based on the considerations set out in section 31.

Judicial Consideration —

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Case to be reviewed

33. (1) Where an inmate is involuntarily confined in administrative segregation, a person or persons designated by the institutional head shall

  • (a) conduct, at the prescribed time and in the prescribed manner, a hearing to review the inmate’s case;
  • (b) conduct, at prescribed times and in the prescribed manner, further regular hearings to review the inmate’s case; and
  • (c) recommend to the institutional head, after the hearing mentioned in paragraph (a) and after each hearing mentioned in paragraph (b), whether or not the inmate should be released from administrative segregation.

Presence of inmate

(2) A hearing mentioned in paragraph (1)(a) shall be conducted with the inmate present unless

  • (a) the inmate is voluntarily absent;
  • (b) the person or persons conducting the hearing believe on reasonable grounds that the inmate’s presence would jeopardize the safety of any person present at the hearing; or
  • (c) the inmate seriously disrupts the hearing.

1992, c. 20, s. 33; 1995, c. 42, s. 12.

Judicial Consideration —

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Where institutional head must meet with inmate

34. Where the institutional head does not intend to accept a recommendation made under section 33 to release an inmate from administrative segregation, the institutional head shall, as soon as is practicable, meet with the inmate

  • (a) to explain the reasons for not intending to accept the recommendation; and
  • (b) to give the inmate an opportunity to make oral or written representations.

Judicial Consideration —

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Idem

35. Where an inmate requests to be placed in, or continue in, administrative segregation and the institutional head does not intend to grant the request, the institutional head shall, as soon as is practicable, meet with the inmate

  • (a) to explain the reasons for not intending to grant the request; and
  • (b) to give the inmate an opportunity to make oral or written representations.

Judicial Consideration —

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Visits to inmate

36. (1) An inmate in administrative segregation shall be visited at least once every day by a registered health care professional.

Idem

(2) The institutional head shall visit the administrative segregation area at least once every day and meet with individual inmates on request.

Judicial Consideration —

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Inmate rights

37. An inmate in administrative segregation has the same rights and conditions of confinement as other inmates, except for those that

  • (a) can only be enjoyed in association with other inmates; or
  • (b) cannot be enjoyed due to
    • (i) limitations specific to the administrative segregation area, or
    • (ii) security requirements.

1992, c. 20, s. 37; 2012, c. 1, s. 61.

Previous Version

Corresponding Regulations: Sections 19-23 Administrative Segregation

Judicial Consideration —

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Procedure to Challenge or Review Transer Decision

— Generally

R v. Olson (1987), 38 C.C.C. (3d) 534, 62 O.R. (2d) 321 (Ont.C.A.) — Where material filed in a habeas corpus application indicates the existence of serious matters to be considered regarding whether an inmate is lawfully detained in segregation, the Court held the view that judges should either direct that an inmate be brought before them to argue the case as though the writ had been issued or, alternatively, to issue the writ and afford the applicant the opportunity to appear and respond to the submissions of his jailer on the hearing upon the return of the writ. It was not good enough to leave such a matter by denying the applicant an opportunity to be heard.

Vincent v. Etablissement De Renous (1989), 99 N.B.R. (2d) 336, [1989] N.B.J. No.235 (N.B.C.A.) [N.B.Q.B. decision at (1988) 89 N.B.R. (2d) 224, [1988] N.B.J. No.307] — Where an inmate applies for habeas corpus and establishes certain facts by affidavit relating directly to the procedural fairness of the proceeding by which he was placed in administrative segregation, a trial judge has a duty to order the issue of a writ or at least to order that the inmate be brought before the court for a hearing on his application.

Robinson v. Canada (1996), 120 F.T.R. 157, [1996] F.C.J. No.1524 (F.C.T.D.) — The Federal Court upheld an order of a prothonotary striking out an inmate’s statement of claim against the individual defendants on the ground that the court had no jurisdiction to adjudicate the claim against them personally. The prothonotary did not commit an error of law when he concluded that the causes of action asserted against the individual defendants arose from tortious liability and not from a body of federal law. The causes of action asserted did not emanate from federal law, but rather from provincial tort liability.

Vukelich v. Mission Institution (Warden) [2000] B.C.J. No.1768, 2000 BCSC 1298 (B.C.S.C.) — A habeas corpus application challenging the decision to place an inmate into administrative segregation was not a criminal proceeding. The proceeding was either administrative (i.e. disciplinary) or civil in nature, or perhaps a mixture of the two. Accordingly, the Court had jurisdiction to award costs, including special costs. However, the court declined to award special costs in the circumstances and found that there was nothing particularly complex about a habeas corpus proceeding and awarded costs on scale 3, a very low rate. This case is being appealed and cross-appealed to the BC Court of Appeal.

Blass v. Canada (Attorney General) (2000), 197 F.T.R. 294, [2000] F.C.J. No.1978 (F.C.T.D.) — The Trial Division agreed to hear the inmate's application and ultimately set aside the CSC's decision to segregate him despite the fact that the inmate had since been released to the general population. Despite being a moot issue in terms of the segregation itself, the court felt that it would be unfair to allow the inmate's record to remain in the state it was without court intervention. Such a record, if left unchanged, could have had some collateral practical effects - particularly eligibility for parole. Comments assembled by prison authorities relating to the inmate's placement in segregation were ordered stricken from the record.

— Whether inmate must first exhaust alternative remedy (i.e. internal grievance process)

Editorial Note — there are some cases on this point including one from the SCC to be included in the near future.

[Cross ReferenceGrievance Procedure]

— Proceeding by way of judicial review in either Federal Court or Provincial Superior Court

Cardinal and Oswald v. Kent Institution (Director) (1985), 23 C.C.C. (3d) 118, 24 D.L.R. (4th) 44, [1985] 2 S.C.R. 642 (S.C.C.) — For the reasons given in Miller v, the Queen (1985), 23 C.C.C. (3d) 97 (SCC), the Supreme Court asserted that in challenging segregation: (a) the provincial superior courts have jurisdiction to issue certiorari in aid of habeas corpus; (b) provincial superior courts could, on an application for habeas corpus alone, consider affidavit evidence to determine whether there had been an absence or excess of jurisdiction, and (c) that habeas corpus will lie to determine the validity of the confinement of an inmate in administrative segregation, and if such confinement be found to be unlawful, to order his release into the general inmate population of the institution.

Pawliw v. Canada (Attorney General) (1995), 126 Sask.R. 132, [1995] S.J. No.12 (Sask.Q.B.), 1995 CanLII 6042 (SK Q.B.) — While dealing with a challenge to the lawfulness of an inmate's segregation in a habeas corpus application, it was held that the provincial superior court did not have jurisdiction to deal with the segregated inmate's request concerning participation in certain programs and exercise privileges.

— Civil actions in response to segregation

Vilon v. Canada (1989), 26 F.T.R. 227, [1989] F.C.J. No.66 (F.C.T.D.) — An inmate sought damages for an alleged unlawful detention relating to his placement in segregation. The application was dismissed as the court concluded that the director of an institution cannot be held to have committed a fault by refusing to follow a decision of a court (in this case the institution's disciplinary court) that had no jurisdiction to issue that decision.

Saint-Jacques v. Canada (Solicitor General) (1991), 1 Admin.L.R. (2d) 162, 45 F.T.R. 1, [1991] F.C.J. No.306 (F.C.T.D.) — An inmate filed an action for damages for being placed in administrative segregation for 809 days allegedly because of his refusal to take a tuberculosis test after being transferred from another institution where an inmate had been diagnosed as having tuberculosis. The defendant CSC did not establish that the accused had been in contact with a fellow contagious inmate, and that his refusal represented a threat to good order and discipline in the institution. Justification for the segregation was not established. Evidence of loss of wages was insufficient. However, the inmate suffered a loss of privileges for which he was awarded $800. Employees of the defendant committed oppressive and arbitrary actions justifying exemplary damages. The inmate's rights were disregarded. He was awarded $2,000 in exemplary damages.

Coumont v. Canada (Correctional Services) (1994), 77 F.T.R. 253, [1994] F.C.J. No.655 (F.C.T.D.) — The CSC was not negligent in keeping the inmate in protective segregation. The court could not see how the decision to place the inmate plaintiff in protective custody might be found negligent. Whether the inmate was forced into protective custody, which he alleges, or whether it was his own decision, as the CSC maintains, the decision clearly had regard to the reasonably foreseeable risk of injury he would face in the general population and met the correctional officials' obligation to ensure his safety.

Brandon v. Canada (Correctional Service) (1996), 131 D.L.R. (4th) 761, 105 F.T.R. 243, [1996] F.C.J. No.1 (F.C.T.D.) — An inmate was awarded $680 in damages, $3000 in exemplary or punitive damages, and costs for false imprisonment as a result of his unlawful placement into administrative segregation, on two separate occasions, for a total of 68 days. The inmate was segregated, without justification, for an extra 40 days after serving 7 days in segregation for a disciplinary offense where, after being found with a female staff member in an unauthorized area, the Discipline Court accepted his guilty plea of failing to remain at his place of work. The inmate was then administratively segregated for another 28 days for what was considered to be his efforts to play on the sympathies of a staff member by claiming falsely that his sister had just died. The court did not agree with the CSC's view that segregation in this case was necessary for maintaining good order and discipline.

Hill v. British Columbia (1997), 50 Admin.L.R. (2d) 309, 148 D.L.R. (4th) 337, [1997] B.C.J. No.1255 (B.C.C.A.) [reversing in part (1995), 127 D.L.R. (4th) 362 (B.C.S.C.)] — Under the law, a review of the placement of an inmate into segregation was required to be carried out within 7 days of the segregation order. In this case, it was not done until 14 days, and the inmate was not released until 11 days after that. The onus of justifying the continued segregation was on the authorities and it was not discharged. The obligation to carry out a review within 7 days is a strict administrative obligation, not a discretionary decision, and in the court's opinion would constitute the minimum standard of reasonableness one would expect to be imposed at common law. Although it was inappropriate for the court to second guess a decision made by prison officials in these circumstances, the prison officials were negligent in failing to review his segregation order on a timely basis. The same breach of statutory duty established a case of false imprisonment. The Crown had no statutory immunity in this case. General damages of $500 were awarded.

Caron v. Canada (1999), 172 F.T.R. 181, [1999] F.C.J. No.1145 (F.C.T.D.) [affirmed [2001] F.C.J. No.879, 2001 FCA 173 (F.C.A.)] — The CSC was not negligent where an inmate was placed into administrative segregation after refusing to participate in the institution's rehabilitation programs. The court was of the opinion that the maintenance of good order and discipline in the institution necessarily includes the proper administration and implementation of the Strategic Correctional Plan.

Standard of review

— Correctional cases

[Cross Reference Placement and transfer of inmaes standard of review section]

Application of Charter rights generally

R v. McCann (1975), 29 C.C.C. (2d) 337, [1976] 1 F.C. 570 (F.C.T.D.) — The court issued a declaration that the confinement of the plaintiff inmates in the solitary confinement unit (SCU) in the former British Columbia Penitentiary amounted to the imposition of cruel and unusual treatment or punishment contrary to s2(b) of the Canadian Bill of Rights. Inmates were required to be confined to a small cell with a light burning 24 hours a day and were permitted to leave only to get meals and for half an hour of exercise each day in the corridor. Inmates were required to sleep with their heads next to the toilet and were subjected to strip searches in the open. The inmates were subjected to treatment that served no positive penal purpose. Even if it did serve some positive penal purpose, the court asserted that the treatment would nonetheless be cruel and unusual because it was not in accord with public standards of decency and propriety - the existence of adequate alternatives made it unnecessary. The Regulation that authorized the warden to dissociate an inmate, for the stated objective of maintaining good order and discipline, was not declared inoperative. Moreover, the inmates were not entitled to a declaration that confinement in the SCU without the requirements of natural justice was contrary to ss1(a) and 2(e) of the Canadian Bill of Rights. There was no duty imposed on the warden to act on a judicial or quasi-judicial basis in dissociating an inmate. That act was purely administrative. When it is considered that penitentiaries house dangerous and unpredictable inmates it becomes clear that the warden must have the power to act decisively and expeditiously to quell disturbances and to isolate offenders in order to protect other inmates and staff. To say that in these circumstances the Regulation requires due process before administrative dissociation would render the administration powerless and a chaotic situation would result.

R v. Olson (1987), 38 C.C.C. (3d) 534, 62 O.R. (2d) 321 (Ont.C.A.) — An inmate's continued confinement in administrative or protective segregation did not violate the s12 Charter prohibition against cruel and unusual punishment, as this was not treatment that was so excessive as to outrage standards of decency. Most right thinking people would agree that segregation from the general population in a prison, in the circumstances of this case, authorized by the regulations is necessary and acceptable. In particular this inmate was a dangerous man and in light of his previous experience in the penitentiary there were very good reasons to fear for the maintenance of order and discipline in the institution where he must serve his sentence of life imprisonment. Segregation to a prison within a prison is not per se cruel and unusual treatment, although it may become so if it is so excessive as to outrage standards of decency.

McArthur v. Regina Correctional Centre, Chief Executive Officer (1990), 56 C.C.C. (3d) 151, 83 Sask.R. 128 (Sask.Q.B.) — The continued segregation of an inmate on the grounds that his behaviour had become unpredictable and violent towards staff members and other inmates did not violate the s12 Charter prohibition against cruel and unusual treatment. The segregation of the inmate in these circumstances did not outrage the standards of decency - referring to the test set out in R v. Olson (1987), 38 C.C.C. (3d) 534 (Ont.C.A.).

Dégarie v. Canada (1997), 141 F.T.R. 142, [1997] F.C.J. No.947 (F.C.T.D.) — The CSC transferred the inmate from one specific segregation unit to another within the same penitentiary. The only difference between the two units was the level of contact with the regular population, with the inmate moving involuntarily to the more 'restrictive' unit. Since both units offered the same services, conditions and rights and privileges no remedy can be available under s24(1) of the Charter. The inmate's constitutional rights were not infringed.

Procedural Fairness

— Generally

Cardinal and Oswald v. Kent Institution (Director) (1985), 23 C.C.C. (3d) 118, 24 D.L.R. (4th) 44, [1985] 2 S.C.R. 642 (S.C.C.) — This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual. In Martineau (No.2), the Court held that the duty of procedural fairness applied in principle to disciplinary proceedings within a penitentiary. Although administrative segregation is distinguished from punitive or disciplinary segregation under s40 of the Penitentiary Service Regulations, its effect on the inmate in either case is the same and is such as to give rise to a duty to act fairly. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. The denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision.

— Disclosure of information to inmate

Re Nelligan (1988), 91 N.B.R. (2d) 384, [1988] N.B.J. No.727 (N.B.Q.B.T.D.) — Where prison authorities acted upon the basis of confidential informant information, the court asserted that it would be totally unreasonable to require of those having responsibility for maintenance of discipline in prisons to disclose to prisoners required from time to time to be placed in segregation the sources of all information on which the decision to segregate is based.

Fengstad v. Kent Institution (1991), 41 F.T.R. 313, [1991] F.C.J. No.257 (F.C.T.D.) — An inmate had been placed in administrative segregation on the grounds that prison authorities had received confidential information indicating that the inmate participated in pressuring other inmates and their families into bringing narcotics into the Institution, and continuing escape efforts. Prison authorities did not violate the duty to act fairly in refusing to disclose all relevant information. The court asserted that it would be unwise and perhaps even dangerous to reveal any more information to the inmate as to the identity of the informants.

Dégarie v. Canada (1997), 141 F.T.R. 142, [1997] F.C.J. No.947 (F.C.T.D.) — The CSC transferred the inmate from one specific segregation unit to another within the same penitentiary. The only difference between the two units was the level of contact with the regular population, with the inmate moving involuntarily to the more 'restrictive' unit. Referring to the decision in Camphaug v Canada (1990), 34 F.T.R. 165 (FCTD), the court asserted that fairness does not require that the inmate be given all of the particulars of all alleged wrongdoings. It is sufficient if he can make representations to demonstrate that the recommendation that he be moved is an unreasonable one.

Blass v. Canada (Attorney General) (2000), 197 F.T.R. 294, [2000] F.C.J. No.1978 (F.C.T.D.) — In this case, the authorities violated procedural fairness in failing to give the inmate any information indicating why he had been identified as one of the instigators of certain specific events in question, although that was the reason for his administrative segregation. The lack of information meant that the inmate was unable to rebut in any real and effective way the decision to place him in administrative segregation.

— Notice, Provision of reasons, and the Right to make representations (present proof or arguments) and to have them taken into consideration

Cardinal and Oswald v. Kent Institution (Director) (1985), 23 C.C.C. (3d) 118, 24 D.L.R. (4th) 44, [1985] 2 S.C.R. 642 (S.C.C.) — Because of the apparently urgent or emergency nature of the decision to impose segregation in the particular circumstances if this case, the Court held that there was no requirement of prior notice and an opportunity to be heard before the decision to segregate was carried through. However, once the inmate was placed into segregation, a decision to continue the administrative dissociation or segregation of that inmate required that the warden inform the inmate of the reasons for his decision and give the inmate an opportunity, however informal, to make representations.

— Right to counsel

McArthur v. Regina Correctional Centre, Chief Executive Officer (1990), 56 C.C.C. (3d) 151, 83 Sask.R. 128 (Sask.Q.B.) — Although the right to counsel is enshrined in s10(b) of the Charter, it is not an absolute right of inmates. While the inmate in this case had access to counsel, he was not entitled to representation by counsel before a prison review panel that ultimately confirmed his continued segregation.

— Right to have a decision made by the designated decision-maker

R v. Olson (1987), 38 C.C.C. (3d) 534, 62 O.R. (2d) 321 (Ont.C.A.) — While s4 of the Penitentiary Act recognized that the Solicitor-General has over-all ministerial responsibility, that section could not authorize the Solicitor-General to order the segregation of a particular prisoner from the general population in a penitentiary. It did not confer authority or power on the Solicitor-General to interfere with the rights or liberty of a particular prisoner. Thus, if the inmate was held in segregation because of the order of the Solicitor-General, then the segregation was unlawful. However, the evidence was clear that the head of the institution made the decision whether or not the appellant should remain in administrative segregation. The fact that the Solicitor-General made an illegal order could place in doubt the inmate's confinement in administrative segregation that was otherwise lawful.

Substantive Review of the Grounds for Decision

Bear v. Canada (Correctional Service) (1986), 48 Sask.R. 310, [1986] S.J. No.212 (Sask.Q.B.) — A warden's decision to segregate an inmate in order to prevent him from associating with a certain guard was found to be in excess of the warden's jurisdiction, as section 40(1)(a) of the Penitentiary Service Regulations provided for segregation to keep an inmate "from associating with other inmates."

Re Nelligan (1988), 91 N.B.R. (2d) 384, [1988] N.B.J. No.727 (N.B.Q.B.T.D.) — An adverse behavioral attitude, which essentially involved the refusal of the inmate to meet with case management officers in order to work out and make a commitment to reasonable behavioral expectations, was sufficient reason for continued segregation.

McArthur v. Regina Correctional Centre, Chief Executive Officer (1990), 56 C.C.C. (3d) 151, 83 Sask.R. 128 (Sask.Q.B.) — The continued segregation of an inmate on the grounds that his behaviour had become unpredictable and violent towards staff members and other inmates was not demonstrably unfair or arbitrary.

Valade c. Pénitencier de Donnacona [1990] J.Q. No.1457 (Que.S.C.) — An inmate had been in administrative segregation for more than 70 days on the grounds that prison authorities believed that his presence in the general population would compromise an inquiry into the murder of another inmate of which he was suspected of perpetrating. The court declared the inmate's continued segregation as no longer justified since the murder inquiry was based on suspicion. Suspicion was not a justification for punishment by anticipation. An inmate suspected of committing a crime could not be placed indefinitely in administrative segregation.

Currie v. Canada (Correctional Service) [1991] N.B.J. No.1002 (N.B.C.Q.B.), 1991 CanLII 2633 (NB Q.B.) — The administrative segregation of an inmate was held to be lawful where the evidence showed that the administrative head of the prison believed, and had reason to believe, that the inmate had been involved in the murder of another inmate at the institution two days prior to the administrative decision to segregate him.

Brandon v. Canada (Correctional Service) (1996), 131 D.L.R. (4th) 761, 105 F.T.R. 243, [1996] F.C.J. No.1 (F.C.T.D.) — An inmate was held, first in dissociation and later in segregation, by reason of what was considered to be his efforts to play on the sympathies of a staff member by claiming falsely that his sister had recently died. It was acknowledged before that he had committed no offence. In the terms of subsection 40(1) of the Regulations, no evidence was adduced that satisfied the court that the director of the institution could have been satisfied that, for the maintenance of good order and discipline in the institution or, in the best interest of an inmate, it was necessary or desirable that the inmate should be kept from associating with other inmates. While, on the basis of the inmate's efforts to play on the sympathies of a staff member and on the basis of his prior history of misconduct with another staff member, the director could be reasonably satisfied that there was justification in terms of the maintenance of good order and discipline of the institution in keeping the inmate from associating with one or more institutional staff members, that is not a ground for dissociation.

Dégarie v. Canada (1997), 141 F.T.R. 142, [1997] F.C.J. No.947 (F.C.T.D.) — The decision to move involuntarily an inmate from voluntary segregation within a particular unit to another segregation unit was made on the grounds that he had been provoking and exploiting other inmates resident in the original segregation unit. This decision was made in order to guarantee the safety of other inmates and the proper functioning of the Institution, in accordance with subsection 31(3) of the CCRA.

Hill v. British Columbia (1997), 50 Admin.L.R. (2d) 309, 148 D.L.R. (4th) 337, [1997] B.C.J. No.1255 (B.C.C.A.) [reversing in part (1995), 127 D.L.R. (4th) 362 (B.C.S.C.)] — Even in the absence of specific evidence that the plaintiff had participated in the precipitating event - a riot, the segregation order was a reasonable exercise of the warden's discretion. Such an order could be made for the security and order of the facility or the safety of its inmates, and therefore the segregation of possible participants from the general prison population pending the abatement of the threat to order and security was reasonable.

Caron v. Canada (1999), 172 F.T.R. 181, [1999] F.C.J. No.1145 (F.C.T.D.) [affirmed [2001] F.C.J. No.879, 2001 FCA 173 (F.C.A.)] — Where an inmate was placed into administrative segregation after refusing to participate in the institution's rehabilitation programs, the court was of the opinion that the maintenance of good order and discipline in the institution necessarily includes the proper administration and implementation of the Strategic Correctional Plan.

Discipline

Purpose of disciplinary system

38. The purpose of the disciplinary system established by sections 40 to 44 and the regulations is to encourage inmates to conduct themselves in a manner that promotes the good order of the penitentiary, through a process that contributes to the inmates’ rehabilitation and successful reintegration into the community.

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System exclusive

39. Inmates shall not be disciplined otherwise than in accordance with sections 40 to 44 and the regulations.

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Disciplinary offences

40. An inmate commits a disciplinary offence who

  • (a) disobeys a justifiable order of a staff member;
  • (b) is, without authorization, in an area prohibited to inmates;
  • (c) wilfully or recklessly damages or destroys property that is not the inmate’s;
  • (d) commits theft;
  • (e) is in possession of stolen property;
  • (f) is disrespectful toward a person in a manner that is likely to provoke them to be violent or toward a staff member in a manner that could undermine their authority or the authority of staff members in general;
  • (g) is abusive toward a person or intimidates them by threats that violence or other injury will be done to, or punishment inflicted on, them;
  • (h) fights with, assaults or threatens to assault another person;
  • (i) is in possession of, or deals in, contraband;
  • (j) without prior authorization, is in possession of, or deals in, an item that is not authorized by a Commissioner’s Directive or by a written order of the institutional head;
  • (k) takes an intoxicant into the inmate’s body;
  • (l) fails or refuses to provide a urine sample when demanded pursuant to section 54 or 55;
  • (m) creates or participates in
    • (i) a disturbance, or
    • (ii) any other activity
  • that is likely to jeopardize the security of the penitentiary;
  • (n) does anything for the purpose of escaping or assisting another inmate to escape;
  • (o) offers, gives or accepts a bribe or reward;
  • (p) without reasonable excuse, refuses to work or leaves work;
  • (q) engages in gambling;
  • (r) wilfully disobeys a written rule governing the conduct of inmates;
  • (r.1) knowingly makes a false claim for compensation from the Crown;
  • (r.2) throws a bodily substance towards another person; or
  • (s) attempts to do, or assists another person to do, anything referred to in paragraphs (a) to (r).

1992, c. 20, s. 40; 2012, c. 1, s. 62.

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Informal resolution

41. (1) Where a staff member believes on reasonable grounds that an inmate has committed or is committing a disciplinary offence, the staff member shall take all reasonable steps to resolve the matter informally, where possible.

Charge may be issued

(2) Where an informal resolution is not achieved, the institutional head may, depending on the seriousness of the alleged conduct and any aggravating or mitigating factors, issue a charge of a minor disciplinary offence or a serious disciplinary offence.

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Notice of charge

42. An inmate charged with a disciplinary offence shall be given a written notice of the charge in accordance with the regulations, and the notice must state whether the charge is minor or serious.

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Hearing

43. (1) A charge of a disciplinary offence shall be dealt with in accordance with the prescribed procedure, including a hearing conducted in the prescribed manner.

Presence of inmate

(2) A hearing mentioned in subsection (1) shall be conducted with the inmate present unless

  • (a) the inmate is voluntarily absent;
  • (b) the person conducting the hearing believes on reasonable grounds that the inmate’s presence would jeopardize the safety of any person present at the hearing; or
  • (c) the inmate seriously disrupts the hearing.

Decision

(3) The person conducting the hearing shall not find the inmate guilty unless satisfied beyond a reasonable doubt, based on the evidence presented at the hearing, that the inmate committed the disciplinary offence in question.

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Disciplinary sanctions

44. (1) An inmate who is found guilty of a disciplinary offence is liable, in accordance with the regulations made under paragraphs 96(i) and (j), to one or more of the following:

  • (a) a warning or reprimand;
  • (b) a loss of privileges;
  • (c) an order to make restitution, including in respect of any property that is damaged or destroyed as a result of the offence;
  • (d) a fine;
  • (e) performance of extra duties; and
  • (f) in the case of a serious disciplinary offence, segregation from other inmates — with or without restrictions on visits with family, friends and other persons from outside the penitentiary — for a maximum of 30 days.

Collection of fine or restitution

(2) A fine or restitution imposed pursuant to subsection (1) may be collected in the prescribed manner.

1992, c. 20, s. 44; 2012, c. 1, s. 63.

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Corresponding Regulations: Sections 24-42 Inmate Discipline

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Procedure to challenge or review disciplinary court decision

— Generally

Martineau and Butters v. Matsqui Institution Inmate Disciplinary Board (1977), 33 C.C.C. (2d) 366, 74 D.L.R. (3d) 1, [1978] 1 S.C.R. 118, 14 N.R. 285 (S.C.C.) — An application for judicial review of a decision of the Inmate Disciplinary Board to convict and sentence several inmates for serious and flagrant disciplinary offences was made to the Federal Court of Appeal pursuant to section 28 of the Federal Court Act. Section 28 gives the Federal Court of Appeal exclusive jurisdiction to review decisions of federal tribunals "other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis." The Federal Court of Appeal dismissed the application on the basis that it had no jurisdiction to review the decision of the Board, the decision not being one that must be made on a judicial or quasi-judicial basis but merely fairly and justly. On appeal to the Supreme Court of Canada, the narrow issue dealt with went to the heart of the jurisdiction conferred upon the Federal Court of Appeal to review decisions or orders of administrative tribunals. In a 5 to 4 split, the Supreme Court dismissed the appeal. Pigeon J., along with three other members, asserted the Court found it difficult to agree with the view that the detailed provisions guiding prison discipline set out in a Commission of Penitentiaries Directive enacted pursuant to the Penitentiary Act and penitentiary Service Regulations merely requires that a disciplinary decision be made fairly and justly. However, while there is no doubt that the Regulations are law, the Directives are not to be considered "law" within the meaning of section 28. The fact that the decisions of the Board may result in the loss of an inmate's statutory remission does not change the nature of the decision. The Board's decision was not one required by "law" to be made on a judicial or quasi-judicial basis and, thus, the Federal Court of Appeal had no jurisdiction to review the decision.

Martineau v. Matsqui Institution Inmate Disciplinary Board (No.2) (1979), 13 C.R. (3d) 1, 50 C.C.C. (2d) 353, 106 D.L.R. (3d) 385, [1980] 1 S.C.R. 602, 30 N.R. 119 (S.C.C.) — Speaking for a majority of the Supreme Court, Pigeon J. held that, when viewing the situation of a prison inmate in respect of disciplinary offence proceedings, the requirements of judicial procedure are not to be brought in and, consequently, these are not decisions which may be reviewed by the Federal Court of Appeal under s28 of the Federal Court Act - a remedy which is in the nature of a right of appeal. However, this does not mean that the duty of fairness may not be enforced by the Trial Division through the exercise of the discretionary remedies mentioned in s18 of the Federal Court Act. This is subject to the exercise of judicial discretion and in this respect it will be essential that the requirements of prison discipline be borne in mind. It is specially important that the remedy be granted only in cases of serious injustice and that proper care be taken to prevent such proceedings from being used to delay deserved punishment so long that it is made ineffective, if not altogether avoided. Dickson J., in a concurring decision, wrote that an inmate disciplinary board is not a court but rather a tribunal that has to decide rights after hearing evidence. Even though the board is not obliged, in discharging what is essentially an administrative task, to conduct a judicial proceeding observing the procedural and evidential rules of a court of law, it is nonetheless subject to a duty of fairness, and a person aggrieved through breach of that duty is entitled to seek relief from the Federal Court, Trial Division, on an application for certiorari. It should be emphasized that it is not every breach of prison rules of procedure that will bring intervention by the courts. The very nature of a prison institution requires officers to make "on the spot" disciplinary decisions, and the power of judicial review must be exercised with restraint. Interference will not be justified in the case of trivial or merely technical incidents. The question is not whether there has been a breach of the prison rules, but whether there has been a breach of the duty to act fairly in all the circumstances.

Laking v. Canada (1995), 136 Sask.R. 24, [1995] S.J. No.571 (Sask.Q.B.), 1995 CanLII 6018 (SK Q.B.) — While the provincial superior courts have broad powers on an application for habeas corpus to review the decision of prison officials who have ordered the involuntary transfer of an inmate to a higher security level, these courts nevertheless cannot review the decision of an independent chairperson even though that decision is a significant part of the reason for the transfer decision. In this case, although the provincial superior court was of the opinion that the disciplinary court conviction underlying the impugned transfer decision was unlawfully entered against the inmate because the hearing lacked procedural fairness, the provincial superior court held that it had no jurisdiction to review the validity of the disciplinary court decision. The Trial Division of the Federal Court is the court that has jurisdiction to review and possibly quash the decision of the Independent Chairperson.

Creed v. Canada (Solicitor General) [1996] F.C.J. No.1207 (F.C.T.D.) — This was an application for a costs award made in relation to an earlier finding, on consent by both parties, that the conviction of the inmate for a disciplinary offence be quashed. The Federal Court dismissed this application, holding that this was not a case for the award of costs under Rule 1618. The Court stipulated that here the truth of the averment made by the officer in his affidavit concerning a conversation which he may or may not have had with the inmate has not been tested under cross-examination, has not been argued on the merits, and has not necessitated a hearing for judicial review by reason of the respondent resisting the application through their agreement that the precipitating disciplinary conviction be quashed.

Morrisroe v. Canada (Minister of Justice) (1996), 119 F.T.R. 276, [1996] F.C.J. No.1178 (F.C.T.D.) — An inmate brought a motion for an order to allow his non-lawyer daughter to represent him in Federal Court. The court denied the motion on the grounds that the Federal Court Rules did not allow for "lay representation." Rule 300 provided that an individual may either represent themselves or be represented by a solicitor. This, however, did not mean that the inmate's daughter could not assist her father in preparing the documentary evidence and written arguments which, in a judicial review proceeding, are filed ahead of any oral argument thereon.

Trunzo v. Stony Mountain Penitentiary Disciplinary Court (1996), 124 F.T.R.101, [1996] F.C.J. No.1500 (F.C.T.D.) — After dismissing this application for judicial review on the part of an inmate and awarding costs of $300 against the inmate, the Federal Court stressed that while the inmate had the right to seek judicial review in this case, invoking the mechanism of the judicial system for such a trivial matter was close to absurd. There was significant public expenditure involved in a judicial review application and it was quite apparent this inmate had no regard for the burden he had placed on the legal system and the Canadian taxpayer. The Court had an obligation in these circumstances to demonstrate to the inmate and to signal to potential litigants and counsel that invoking the mechanism of the judicial system for frivolous cases will not be costless. While the award of $300 in this case was relatively low, litigants and counsel should be forewarned that increased awards of costs, including costs against counsel personally, could be made in similar cases in the future.

— Extensions of time on deadlines for applications to Federal Court

Faulkner v. Stony Mountain Institution (1986), 6 F.T.R. 195, [1986] F.C.J. No.439 (F.C.T.D.) — An inmate applied for a writ of certiorari quashing the decision of a disciplinary court almost two and a half years after the decision was made. The Federal Court dismissed the application. The Court found that the inmate had not satisfactorily explained the long delay in making his application, and the law was quite clear that an unreasonable delay in applying for relief by way of certiorari may be a bar to granting it. In the Court's view, the unexplained delay of 20 months in making the application was a bar to the granting of the relief sought in this case.

Forster v. Canada (Correctional Service) (1999), 247 N.R. 300, [1999] F.C.J. No.1462 (F.C.A.), 1999 CanLII 8762 (F.C.A.) — The Federal Court Trial Division struck the inmate's application for judicial review of a disciplinary court conviction on the basis that it was commenced outside the 30 day time limit. In dismissing the appeal, the Court asserted that the inmate had received the decision of the disciplinary hearing and most of the tapes of that hearing. The motions judge exercised his discretion properly when he found that waiting for the full tape-recorded transcript did not constitute a sufficiently good reason for the delay. Furthermore, as to whether confiscating the inmate's computer constituted a reasonable excuse for the delay, it was open to the motions judge to find as he did because the inmate did not file his application until some three months after the day he got his computer back.

— Granting of interlocutory injunction (stay) of disciplinary court decision pending judicial review

Crawford v. William Head Penitentiary (1992), 56 F.T.R. 32, [1992] 3 F.C. 539 (F.C.T.D.) — While it was not set out as a ground for relief in relation to the disciplinary court conviction in this decision, the Federal Court indicated that there appeared to be a perception that simply initiating proceedings in Federal Court should result in suspension of other proceedings, pending a decision of the Federal Court. While each board or authority must assess its own basis for proceeding when the basis of those proceedings are questioned by application to the Federal Court, it was noted that the Federal Court itself does not readily intervene to grant an application to stay other proceedings, though it has jurisdiction to do so.

Standard of review

— Correctional cases generally

[Cross ReferencePlacement amd Transfer of Inmates standard of review section]

- Discipline cases specifically

Boudreau v. Canada (Attorney General) [2000] F.C.J. No.2016 (F.C.T.D.), 2000 CanLII 16709 (F.C.) — An inmate applied for judicial review of a disciplinary court decision to convict him pursuant to section 40(k) of the CCRA. The Federal Court held that the standard of review in the context of decisions made by the CSC officials is, on the balance of probabilities, whether the decision was patently unreasonable.

Durie v. Canada (Attorney General) (2001), 201 F.T.R. 8, 2001 FCT 22, [2001] F.C.J. No.169 (F.C.T.D.) — An inmate applied for judicial review of a disciplinary court decision to convict him pursuant to section 40(l) of the CCRA for failing or refusing to provide a urine sample upon demand. The Federal Court stated that it "accepted the standard of review of this decision to be patent unreasonableness since there is reviewable error no matter what standard of review is applied."

Legal Aid Services

Landry v. Legal Services Society (1986), 28 C.C.C. (3d) 138, 4 W.W.R. 645, [1986] B.C.J. No.336 (B.C.C.A.) — An inmate charged with a disciplinary offence applied for an order requiring the Legal Services Society to provide him with legal aid. The application was not successful and an appeal to the British Columbia Court of Appeal was dismissed. Under section 3(2) of the Legal Services Society Act, R.S.B.C. 1979, c. 227, an inmate would have been entitled to have legal services provided if he were a "defendant in criminal proceedings that could lead to imprisonment," could be "imprisoned or confined through civil proceedings," or if he had a legal problem that threatened "his livelihood." The Court held that proceedings before the prison disciplinary court are neither civil nor criminal in nature. Moreover, the fact that the inmate may have been confined and unable to work at a job (that he was paid a small wage for) within the prison, if found guilty of a disciplinary offence, did not constitute a threat to his "livelihood" as within the meaning of the statute.

Gochanour v. Alberta (Solicitor General) (1990), 105 A.R. 289, 74 Alta.L.R. (2d) 12, [1990] 5 W.W.R. 178, [1990] A.J. No.348 (Alta.Q.B.) — This was an application by an inmate, who wished to challenge certain actions taken by officials and the disciplinary board of the Edmonton Remand Centre, requesting the Court to compel the Legal Aid Society of Alberta to appoint counsel to represent him or alternatively, to appoint publicly-funded counsel directly. The Queen's Bench held that the general principle is that the Court has an inherent power to appoint counsel in a proper case as part of its duty to ensure a fair trial. There is no absolute right to counsel. However, when a person who cannot afford legal services is charged with an offence that is serious and complex, he or she is entitled to have counsel provided at the expense of the state where certain criteria are met. An applicant must convince the Court that the matters in question are so serious and complex that he could not receive a fair hearing without legal assistance. In this case, the application was dismissed on the grounds that the inmate appeared capable of representing himself and that the matters in question were not complex.

Winters v. Legal Services Society (British Columbia) (1999), 137 C.C.C. (3d) 371, 177 D.L.R. (4th) 94, 27 C.R. (5th) 1, [1999] 3 S.C.R. 160, [1999] 9 W.W.R. 327 (S.C.C.) — As prison disciplinary proceedings can result in up to 30 days' solitary confinement (up to 45 days in the case of multiple convictions), the inmate in this case was within the entitlement to mandatory legal services provided under s3(2) of the Legal Services Society Act, R.S.B.C. 1997, c.227 - now R.S.B.C. 1996, c.256. However, the term "legal services" is not synonymous with "legal representation" and the Act nowhere specifies a right to publicly funded legal counsel at a trial or hearing. The Court was of the opinion that the Legislature intended the Society to have discretion to determine when mandatory legal services under s3(2) ought to rise to the level of legal representation. In making its decision the Society must consider all of the relevant circumstances of the application, including the nature of the charge, the procedure for its determination, the severity of the punishment of the inmate if convicted, and other potential indirect consequences such as loss of remission, or prejudice to a potential transfer to a lesser institution. When legal representation at the hearing is that which a reasonable person of average means expects to receive, the Society is under a statutory duty to provide counsel at the hearing. The prospect of solitary confinement would persuade a reasonable person of average means to have counsel at the hearing. However, the task of the Legal Services Society is complicated by the fact that solitary confinement is theoretically available for a vast range of offences under the CCRA. It may or may not be a remote possibility in a particular case.

Exclusivity of the System (Section 39 CCRA)

R v. Berrie (1975), 24 C.C.C. (2d) 66, 30 C.R.N.S. 145 (B.C.Prov.Ct.) — Several correctional officers were charged with common assault as a result of an attempt to shave an inmate, who had disregarded an order from the warden to shave off his beard. In convicting the accused, the Court stated that the accused correctional officers were neither required by law nor authorized by law to shave the inmate. The warden wanted the inmate to shave and ordered that he "was to shave like the rest" but the only way that the provision could be enforced, absent the co-operation and consent of the inmate, was by a proper disciplinary hearing under the regulations. While the loss of remission time or privileges emanating from disciplinary proceedings may or may not be effective, the Court held that the use of brute force would not be reasonable to accomplish the enforcement of an order of this sort.

Informal Resolution (Section 41 CCRA)

Schimmens v. Canada (Attorney General) (1998), 157 F.T.R. 118, [1998] F.C.J. No.1486 (F.C.T.D.) — The Federal Court agreed with the inmate's argument that section 41(1) of the Act establishes a condition precedent that must be met before the institutional court has jurisdiction to proceed with the hearing of a charge. The Court held that section 41(1) creates an obligation on the institutional court member before hearing a charge to investigate to be satisfied that "all reasonable steps to resolve the matter informally, where possible" have been taken. In this case, the Federal Court found that the chairperson misapprehended the meaning of section 41(1) and did not fulfill this obligation. The decision was set aside and the matter referred back to another member of the disciplinary court for rehearing.

Application of Charter rights generally

Russell v. Radley (1984), 11 C.C.C. (3d) 289, 5 Admin.L.R. 39, [1984] 1 F.C. 543 (F.C.T.D.) — The rights guaranteed by s11 of the Charter apply to a person charged with an "offence." Offence means conduct defined and prohibited by law which, if found beyond a reasonable doubt to have been committed in fact, is punishable by fine, imprisonment or other penalty imposed according to law upon the offender. By that standard a disciplinary offence defined in the Penitentiary Service Regulations is an offence within the meaning of s11. Accordingly, s11(d) is applicable to the trial of serious or flagrant disciplinary offences by the inmate disciplinary board. The disciplinary "court," being in reality an administrative tribunal, performing an administrative function, is not required by any standard to evince the plenitude of independence possessed by true courts. By providing for the appointment of "a person to preside over a disciplinary court," and especially when that person bears the independence of a lawyer who is not associated with the Penitentiary Service, the reality as well as the appearance of independence of the trier of allegations of disciplinary offences is augmented. It is not necessary to fully judicialize either the tribunal or its procedures in order to achieve sufficient independence for prison disciplinary tribunals to remain validly constituted within the contemplation of s11(d) of the Charter. As constituted, the tribunal raises no reasonable apprehension in the minds of informed persons, viewing the matter realistically and practically, about the independence of the lawyer presiding over it.

Dion v. Canada (1986), 30 C.C.C. (3d) 108, [1986] R.J.Q. 2196 (Que.S.C.) — The Court declared that sections 39(i.1) and 41.1 of the Penitentiary Service Regulations did not satisfy the requirements of fundamental justice referred to in section 7 of the Charter and were thus of no force and effect. According to the Court, section 41.1 gave an officer or penitentiary employee the absolute power to require a urine sample, even if the inmate did not present any danger of committing discipline breaches or acts linked to the absorption of intoxicants. This section did not contain the essential elements of fundamental justice because it did not ensure an inmate of protection against abuse by one of the members of the penitentiary service. Arbitrariness has always been, and will always be, contrary to fundamental justice. The same went for section 39(i.1) because it did not qualify, in any fashion, the prohibition that it imposes on all prisoners, whoever they are, in what circumstances they find themselves, and regardless of the nature of the intoxicant that they consume or may consume, except where it is authorized medication that is used in the directed manner. Section 39(i.1) exhibited the same arbitrary characteristic that is reproached in section 41.1.

Beaulieu v. Canada (Director of Leclerc Institution) (1987), 4 W.C.B. (2d) 211, [1991] F.C.J. No.1122 (F.C.T.D.) — The denial to an inmate of rehabilitative programmes following conviction for a prison disciplinary offence did not constitute double jeopardy and an infringement of section 11(h) of the Charter.

Haines v. Kingston Prison for Women (Disciplinary Tribunal) (1990), 40 F.T.R. 76, [1990] F.C.J. No.1064 (F.C.T.D.) — The Federal Court was satisfied that disciplinary court proceedings and proceedings before a criminal court are totally different proceedings. Therefore, as pursuant to section 13 of the Charter, a witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in prosecution for perjury or for the giving of contradictory evidence.

Hanna v. Matsqui Institution (Disciplinary Court) (1990), 36 F.T.R. 134, [1990] F.C.J. No.629 (F.C.T.D.) — The Federal Court declared that there was no doubt that the independent chairperson has the power to consider if a section of legislation is contrary to the Charter. However, the Court was satisfied that only the superior courts have the jurisdiction to declare a section of legislation contrary to the Charter and that this declaration can only be obtained by filing an action to obtain a declaratory judgment.

R v. Shubley (1990), 52 C.C.C. (3d) 481, 74 C.R. (3d) 1, 42 Admin.L.R. 118, 65 D.L.R. (4th) 193, [1990] 1 S.C.R. 3 (S.C.C.) — Prosecution under the Criminal Code for misconduct that had earlier been dealt with by way of a prison disciplinary hearing did not violate section 11(h) of the Charter. Such prosecution did not amount to double jeopardy. The Supreme Court of Canada applied the Wigglesworth test and held that proceedings against the accused under the Criminal Code would be barred by s11(h) of the Charter only if in the earlier internal prison disciplinary proceedings the accused had been found guilty and punished for an offence. This depends on whether the earlier proceedings were either by their very nature criminal proceedings or whether the proceedings involved the imposition of true penal consequences. The Court concluded that the prison disciplinary proceeding to which the inmate was subject was not, by its very nature, criminal. The inmate was being called to account to the prison officials for breach of his obligation as an inmate of the prison to conduct himself in accordance with prison rules. The purpose of internal prison disciplinary proceedings is not to mete out criminal punishment, but to maintain order in the prison. Further, the Court concluded that the sanctions conferred on the superintendent for prison misconduct do not constitute true penal consequences.

Morin v. Saskatoon Correctional Centre (1990), 86 Sask.R. 269, [1990] S.J. No.462 (Sask.Q.B.) — Citing R v. Shubley (1990), 52 C.C.C. (3d) 481, 74 C.R. (3d) 1, 42 Admin.L.R. 118, 65 D.L.R. (4th) 193, [1990] 1 S.C.R. 3 (S.C.C.), the Queen's Bench held that s11 of the Charter, and in particular the requirement that the tribunal be independent and impartial in the context of subparagraph (d), does not apply to the proceedings of the disciplinary panel in this case. Although The Shubley case dealt primarily with s11(h) of the Charter, the principles apply equally to s11(d). In terms of s7 of the Charter, the Queen's Bench stipulated that there appeared to be no question that orders made by a disciplinary panel for cancellation of earned remission, solitary confinement, or transfer of an inmate have been interpreted by the courts to be equivalent to the deprivation of "liberty" as envisaged by s7. Yet, the Queen's Bench was not aware of any case which had gone to the extent of interpreting "fundamental justice" in s7 as requiring an independent make-up for a disciplinary tribunal, (or at least that it be "independent and impartial" as required by s11(d). This is to read into s7 a substantive requirement. Section 7 has consistently been interpreted by the courts as a procedural provision, namely, that in the process of carrying out its duties, a tribunal must be impartial and unbiased in the sense that it does not have an interest in the matter upon which it adjudicates. The decisions made in most of the cases appear to equate "fundamental justice" in s7 of the Charter to the concept of "natural justice" in our common law. This common law principle also requires that a tribunal not be tainted by partiality or bias in coming to its decision.

R v. Martell (1991), 118 A.R. 47, [1991] A.J. No.1207 (Alta.Prov.Ct.) — An inmate was charged criminally with possession of hashish. Meanwhile, he was charged and pleaded guilty to penitentiary disciplinary offences that stemmed from the same alleged act. After a criminal trial, the inmate was convicted. Yet, before sentencing, the inmate applied for a stay on the grounds that his section 7 Charter rights had been violated by double prosecution for the same offence. The Provincial Court dismissed the application, holding that section 7 of the Charter had not been violated as the prison disciplinary proceedings were not criminal by nature and did not have penal consequences.

Picard v. Drummond Institution (1995), 107 F.T.R. 1, [1995] F.C.J. No.1628 (F.C.T.D.) — The Federal Court agreed with the statement made in Jackson v. Joyceville Penitentiary Disciplinary Tribunal, [1990] 3 F.C. 55, 32 F.T.R. 96 (T.D.), that the collection of a urine sample in a penitentiary is a search within the meaning of section 8 of the Charter. The freedom of inmates from state examination of bodily wastes without consent ought not to be taken away except in accord with the principles of fundamental justice.

Beaudoin v. William Head Institution (1997), 139 F.T.R. 133, [1997] F.C.J. No.1663 (F.C.T.D.) — In obiter, the Federal Court stated that it remains open as to whether the reduced expectation of privacy of an inmate of a federal correction institution is so low as to permit, without contravention of the Charter, a demand for a urine sample where the individual demanding the sample does not have reasonable grounds to believe that the inmate of who, the sample is demanded had ingested an intoxicant, or in other circumstances where it cannot be demonstrated that the public interest in safety and security in the correctional institutions is a predominant interest. The procedures of the CSC consequent on such a demand are clearly intrusive into generally applicable privacy expectations.

Procedural Fairness

— Generally

Blanchard v. Disciplinary Board of Millhaven Institution [1982] 1 F.C. 309 (F.C.T.D.) — Except to the extent that there are statutory provisions or regulations having the force of law to the contrary, there is no requirement to conform to any particular procedure or to abide by the rules of evidence generally applicable to judicial or quasi-judicial tribunals or adversary proceedings. There is, however, an overall duty to act fairly in administrative matters and, when applied to an administrative hearing or enquiry, the duty to act fairly translates into one of ensuring that the enquiry is carried out in a fair manner and with due regard to natural justice. Although the hearing is not to be conducted as an adversary proceeding but as an inquisitorial one, there is no duty on the person responsible for conducting the hearing to explore every conceivable defence or to suggest possible defences to the prisoner, although there is a duty to conduct a full and fair enquiry which, of course, might lead to the obligation of asking questions of the prisoner or of any witness, the answers to which might prove exculpatory in so far as the prisoner is concerned. He must, in other words, examine both sides of the question.

McLeod (Re)(1982), 9 W.C.B. 249 (F.C.T.D.) — The chairperson of the disciplinary court breached the duty to act fairly when he entered a plea of guilty on the inmate's behalf after the inmate had pleaded "nolo contendere." As that plea was unknown in law, the chairperson should have considered there to be no plea entered in which case a plea of not guilty was required to be entered by the tribunal.

Lasalle v. LeClerc Institute (Disciplinary Tribunals) (1983), 37 C.R. (3d) 145, 5 Admin.L.R. 23, [1983] F.C.J. No.1099 (F.C.T.D.) — The Federal Court quashed the disciplinary convictions made against an inmate. The inmate raised an issue with respect to the fairness of the disciplinary hearing, stating that he was permitted to enter the hearing room only after the witnesses and the judge had conferred, and again that, after the conclusion of the hearing, the witnesses laying charges against him, the penitentiary representative and the judge remained in the room before he was called back and found guilty. The Court held that while it has been held that such a hearing is in the nature of an inquiry and not an adversary process, this practice appears to be unfair, if not actually prejudicial, to the inmate.

Gingras v. Canada [1987] F.C.J. No.426 (F.C.T.D.) — The duty to provide procedural fairness in the adjudication of disciplinary matters was not breached. The inmate was present at the hearing, permitted to question witnesses, permitted to call witnesses and to give evidence of his own. The hearing took place three days after the incident. The inmate's first language was French and an interpreter was available to him. He did not ask for further time to consider his situation or to prepare his case. If the disciplinary court had decided to proceed over his objections there were remedies available. Furthermore, the Federal Court could not agree with the CSC's argument that this application for judicial review was an academic exercise because the inmate had already served his time, and the charges would not effect his parole eligibility date. The Court held that although the date is not affected, these charges could very well determine whether he is in fact granted parole. Such circumstances are not academic to the inmate.

Tsang v. Kent Institution (1988), 24 F.T.R. 103, [1988] F.C.J. No.845 (F.C.T.D.) — An inmate applied to the Federal Court for an order prohibiting a disciplinary court from proceeding with disciplinary charges against him, arguing that the disciplinary court lost its jurisdiction when the charge did not proceed as originally scheduled. The hearing had to be postponed due to a disturbance at the institution that ultimately led to a "lockdown." In dismissing the application, the Federal Court found no violation of the inmate's section 7 or 11 Charter rights as a result of the disciplinary court's rescheduling of the hearing. The Court held that in the absence of any evidence that the disciplinary court failed to comply with its own rules of procedure or failed to comply with a statutory procedural requirement, it was difficult to see how a legal argument could be made that in not proceeding with the charge on the originally scheduled day, the disciplinary court lost jurisdiction. Moreover, even if the disciplinary court had failed to comply with some procedural rule, regulation or statutory provision, one would still have to ask whether that failure was of so severe a nature as to constitute a loss of jurisdiction. It would have been difficult on the facts of this case to classify a breach of the nature alleged by the inmate as so serious in nature as to deprive the disciplinary court of jurisdiction - one overriding reason for such difficulty was the fact that the inmate suffered no prejudice thereby.

Vilon v. Canada (1989), 26 F.T.R. 227, [1989] F.C.J. No.66 (F.C.T.D.) — At a hearing, the independent chairperson decided to suspend a sanction previously imposed on an inmate by the disciplinary court. By agreeing to suspend the punishment previously imposed by him the chairperson of the disciplinary court was reviewing his own decision and clearly acting unlawfully. There was nothing in the Penitentiary Service Regulations that authorized him to do that. While the chairperson was entitled to allow a new hearing in the event that he was presented with new evidence, he lacked jurisdiction to review his decision and suspend the punishment.

Hendrickson v. Kent Institution (1990), 32 F.T.R. 296, [1990] F.C.J. No.19 (F.C.T.D.) — The principles governing the penitentiary discipline are to be found in Martineau and Butters v. Matsqui Institution Inmate Disciplinary Board (1977), 33 C.C.C. (2d) 366, 74 D.L.R. (3d) 1, [1978] 1 S.C.R. 118, 14 N.R. 285 (S.C.C.); Martineau v. Matsqui Institution Inmate Disciplinary Board (No.2) (1979), 13 C.R. (3d) 1, 50 C.C.C. (2d) 353, 106 D.L.R. (3d) 385, [1980] 1 S.C.R. 602, 30 N.R. 119 (S.C.C.); Blanchard v. Disciplinary Board of Millhaven Institution (1982), 69 C.C.C. (2d) 171 (F.C.T.D.); Howard v. Stony Mountain Institution Inmate Disciplinary Court (1985), 19 C.C.C. (3d) 195, 19 D.L.R. (4th) 502, 11 Admin.L.R. 63, 45 C.R. (3d) 242 (F.C.A.), and may be summarized as follows: 1) A hearing conducted by an independent chairperson of the disciplinary court of an institution is an administrative proceeding and is neither judicial nor quasi-judicial in character. 2) Except to the extent there are statutory provisions or regulations having the force of law to the contrary, there is no requirement to conform to any particular procedure or to abide by the rules of evidence generally applicable to judicial or quasi-judicial tribunals or adversary proceedings. 3) There is an overall duty to act fairly by ensuring that the inquiry is carried out in a fair manner and with due regard to natural justice. The duty to act fairly in a disciplinary court hearing requires that the person be aware of what the allegations are, the evidence and the nature of the evidence against him and be afforded a reasonable opportunity to respond to the evidence and to give his version of the matter. 4) The hearing is not to be conducted as an adversary proceeding but as an inquisitorial one and there is no duty on the person responsible for conducting the hearing to explore every conceivable defence, although there is a duty to conduct a full and fair inquiry or, in other words, examine both sides of the question. 5) It is not up to this court to review the evidence as a court might do in a case of a judicial tribunal or a review of a decision of a quasi-judicial tribunal, but merely to consider whether there has in fact been a breach of the duty to act fairly. 6) The judicial discretion in relation with disciplinary matters must be exercised sparingly and a remedy ought to be granted only in cases of serious injustice.

Teneycke v. Matsqui Institution (1990), 33 F.T.R. 181, 43 Admin.L.R. 294, [1990] 2 F.C. 106 (F.C.T.D.) — An inmate was charged with a disciplinary offence which took place in his cell. Without notifying the inmate the independent chairperson took a view of the cell that included the moving of furniture and taking of measurements. The Federal Court held that in the absence of a specific statutory provision to the contrary, views may be conducted only for the very restrictive purpose of allowing the tribunal to better understand the evidence and may never have the purpose of allowing the gathering of evidence at the scene by the tribunal. The parties must always be present whenever a view is taken unless the right is waived since the parties are, except where certain administrative decisions are being considered, entitled as of right to be present or represented at all proceedings involved in the decision-making process. Views are part of that process. Under no circumstances is a person presiding either a trial or an administrative board or tribunal charged with a decision-making responsibility involving the rights of others, entitled to actively gather evidence or to decide matters on the basis of his own observation of material facts which have not been established in evidence.

Hanna v. Mission Institution Disciplinary Court (1995), 102 F.T.R. 275, [1995] F.C.J. No.1370 (F.C.T.D.) — Where an inmate maintained that the independent chairperson exceeded his jurisdiction by acting as both chairperson and prosecutor, and in calling witnesses after the inmate closed his case, the Federal Court held that it is well established in the jurisprudence that prison disciplinary proceedings are not adversarial in nature, but are inquisitorial. As such, it is not a breach of a right to a fair hearing to have the chairperson ask questions in order that a proper determination can be made as to whether or not the allegations in the offence report have indeed been substantiated. With respect to the calling of a witness after the applicant gave his evidence, the Federal Court noted that in Hendrickson v. Kent Institution (1990), 32 F.T.R. 296, [1990] F.C.J. No.19 (F.C.T.D.), it was held that having the chairperson of a disciplinary court call witnesses after an inmate has given evidence is not a violation of either the rules of fairness or outside the jurisdiction of the independent chairperson, provided the inmate is present, is given full opportunity to hear the evidence, to give his or her version of the case and to cross-examine the witness.

Stocking v. Joyceville Institution Disciplinary Court (1995), 98 F.T.R. 157, [1995] F.C.J. No.936 (F.C.T.D.) — An inmate had not provided to the Federal Court transcripts from the disciplinary hearing or with the original tapes of the hearing. While there was an allegation made by the inmate in his affidavit that two correctional officers gave contradictory evidence with respect to several facts, the Federal Court held that in the absence of any record to verify whether in fact these inconsistencies existed, it must disregard the statements pertaining to the alleged contradictions. Further, without a transcript (electronic or written) of the proceedings before the disciplinary court, the Court had no indication as to what evidence was relied upon by the independent chairperson. In the absence of sufficient particulars with respect to the hearing before the disciplinary court, the Court must conclude that the chairperson's decision was reasonable.

Belair v. Canada (Solicitor General) [2000] F.C.J. No.199 (F.C.T.D.), 2000 CanLII 14967 (F.C.) — An inmate had asked that the disciplinary court proceedings he faced go forward in French before a Francophone or bilingual chairperson without the assistance of an interpreter, as required by section 16 of the Official Languages Act. That request was denied and the inmate was convicted of a disciplinary offence by a unilingual anglophone chairperson aided by an interpreter. The inmate applied to the Federal Court for judicial review asking the Court to quash the tribunal's decision on the ground that he was entitled to the hearing he sought under section 16. In denying the inmate relief, the Federal Court held that the Official Languages Act states that the right claimed by the applicant inmate is only available before certain tribunals, which puts in question the classification of the tribunal. Accordingly, a disciplinary tribunal is not a tribunal that carries out adjudicative functions within the meaning of the Official Languages Act.

— Disclosure of information to inmate

Bailey v. Mission Institution (1986), 17 W.C.B. 155, 6 F.T.R. 69, 25 Admin.L.R. 219, [1986] F.C.J. No.505 (F.C.T.D.) — An inmate was charged and convicted of having contraband in his possession, namely a ball point pen tube with marijuana residue, pursuant to section 39(i) of the Penitentiary Service Regulations. The Federal Court allowed the inmate's application for judicial review in part on the grounds that the inmate was denied the right to defend himself on the evidence that was used to obtain a guilty decision. A correctional officer's affidavit to the Court indicated that the memorandum showing the results on the testing of the substance in question was in the officer's possession during the hearing, was referred to by the officer during the hearing, but was never placed before the inmate during the course of the proceedings. The Court held that if the memorandum showing the results on the testing is not shown to the person charged with an offence, then that person cannot make a defence to that evidence.

Picard v. Drummond Institution (1995), 107 F.T.R. 1, [1995] F.C.J. No.1628 (F.C.T.D.) — An inmate refused to a demand to provide a urine sample and was convicted of a disciplinary offence pursuant to section 54(a) of the CCRA. While prison officials made the demand on the basis of a claim that the inmate had taken an intoxicant, they neither told the inmate anything about their grounds for believing that he was taking intoxicants, nor did they provide in the notice of disciplinary charges any summary of the evidence in support of their charge other than a statement that read as follows: "Reason Reason to believe." It was only at the hearing, after the inmate had pleaded not guilty to the charge, did officials indicate that the reasonable grounds to believe the inmate had committed the offence were based on information obtained from inmates or staff members but without giving any other particulars. The Federal Court allowed the inmate's application for judicial review challenging the conviction. Section 25 of the Regulations specifically requires that the notice of a charge of a disciplinary offence contain a summary of the evidence to be presented in support of the charge at the hearing. The Federal Court asserted that the simple statement provided by officials was not sufficient to meet the requirement and enable the inmate to prepare a full answer and defence. In Demaria v. Regional Classification Board , [1987] 1 F.C. 74, 69 N.R. 135 (F.C.A.), the Federal Court of Appeal confirmed that compliance with the principles of fundamental justice or the duty of fairness requires the provision of information on the reasonable grounds to believe that an offence has been committed. In light of the case law, it was the Federal Court's view in this case that, in the absence of evidence from the authorities demonstrating that they withheld only such information as was strictly necessary, the failure to give the inmate any information at all concerning the reasonable grounds of the officers to believe that an offence was committed violated the inmate's rights under not only sections 56 and 57 of the CCRA and section 25 of the Regulations, but also section 7 of the Charter.

- Notice

Lasalle v. LeClerc Institute (Disciplinary Tribunals) (1983), 37 C.R. (3d) 145, 5 Admin.L.R. 23, [1983] F.C.J. No.1099 (F.C.T.D.) — The Federal Court quashed the disciplinary convictions made against an inmate. A Commissioner's Directive provided that no finding shall be made against an inmate charged with a disciplinary offence unless he has received written notice of the charge in sufficient detail at least 24 hours prior to the beginning of the hearing, so that the inmate would have reasonable time to prepare his defence. In this case, the inmate was given the written notice only immediately prior to the hearing. According to the affidavit of a correctional official, the inmate waived the 24 hour requirement. The Court held that the holding of a hearing without the 24 hour notice is an exception to the rule, and the burden of proof that the inmate has consented to waive the delay must devolve upon the prison authorities. At the very least, such a waiver should be made in writing in order to avoid subsequent questions of credibility of witnesses being raised.

Canada (Attorney General) v. Plante (1995), 103 F.T.R. 161, [1995] F.C.J. No.1509 (F.C.T.D.) — An inmate was acquitted of a disciplinary offense by the institution's disciplinary court on the grounds that the Inmate Offence Report and Notification of Charge was delivered to him after the expiration of a two-day period set out in the Commissioner's Directive. The Attorney General sought judicial review of the disciplinary court's decision. In allowing the application, the Federal Court found the disciplinary court to have wrongly attributed a legislative effect to the CD by concluding that compliance with the two-day limit set out in the CD mandatory, and to have failed to exercise its jurisdiction by not considering whether the failure to comply with the two-day limit prejudiced the inmate. Further, the Federal Court held that if the disciplinary court had looked into whether the failure to comply with the time limit set out had prevented the inmate from preparing a full answer and defence, it would have found that there was no such prejudice. The record revealed that the Notice was given to the inmate by the chairperson of the disciplinary court when the inmate appeared for the first time and pleaded not guilty to the offence charged. The hearing into the matter did not start until almost a month later. At that hearing the inmate was represented by a lawyer who, considering his submissions to the disciplinary court, was very familiar with the case. Accordingly, the Federal Court set aside the disciplinary court's decision and referred the case back to the disciplinary court to be reconsidered and decided on the premise that the date on which the offence report was delivered to the inmate did not prejudice his full answer and defence before that court.

Hanna v. Mission Institution Disciplinary Court (1995), 102 F.T.R. 275, [1995] F.C.J. No.1370 (F.C.T.D.) — In challenging a disciplinary court conviction, the inmate maintained that the notification of the charge was not delivered three working days before the proposed date of the hearing, contrary to section 28 of the Regulations. The Federal Court dismissed the application. The inmate was served with the notice of hearing on December 23. The hearing was originally scheduled for December 29. With various statutory holidays, the Court agreed that it appeared that December 29 did not allow for three working days. However, due to the unavailability of a key witness, the matter was put over to January 12. The only matter of substance that occurred prior to the adjournment was that the applicant entered a plea of not guilty. No evidence was led. More importantly, the inmate indicated that he was ready and willing to proceed on that day. The actual hearing of the matter, namely the calling of witnesses and the hearing of evidence, proceeded on January 12. In such circumstances, the Court was not certain that one could say in fact that the hearing did not take place well after the three-day notification period. In any event, the jurisprudence was clear that even if the disciplinary court failed to comply with some procedural rule, regulation or statutory provision, the question of whether that failure was so severe in nature as to constitute a loss of jurisdiction would still have to be addressed. In this regard, prejudice to the inmate is a consideration. In this case, whether the time limit was adhered to or not, it was clear that the inmate suffered no prejudice.

Jackson v. Stony Mountain Inmate Disciplinary Court (1995), 90 F.T.R. 296, 38 C.R. (4th) 46, [1995] F.C.J. No.179 (F.C.T.D.) — Sections 25 and 31(2) of the Regulations impose on the CSC the obligation of informing the inmate of the time, place and date of the disciplinary hearing, allowing the inmate to retain and instruct legal counsel, and allowing the inmate's counsel to fully participate in the hearing. However, they do not appear to impose an obligation on the CSC to directly notify the inmate's counsel of the hearing date. It may be sufficient if the inmate is given proper notice and is given a reasonable opportunity to inform his or her counsel of the time and date of the hearing. Or if counsel is present when an independent chairperson schedules a date, it may be that the CSC need do nothing further. However, if the CSC schedules a hearing and assumes the responsibility for notifying counsel, the information given to counsel obviously must be accurate. If the CSC has taken on this responsibility, and has failed to provide to counsel the correct time or date, then it fails to ensure that the inmate's legal counsel has been permitted to participate in the proceedings to the same extent as the inmate, as mandated by section 31(2).

Pearce v. Canada (Solicitor General) [1995] F.C.J. No.1097 (F.C.T.D.) — An inmate was required to appear before a disciplinary court to answer a charge of taking an intoxicant contrary to subsection 40(k) of the CCRA. During that hearing, the inmate was further charged with attempting to disobey a written rule governing the conduct of inmates pursuant to subsections 40(s) and (r) of the Act - an allegation that stemmed from the same set of events as the 40(k) charge. A separate hearing took place for this second charge where the inmate requested to be informed of the rule he was alleged to have violated. The inmate also pointed out to the independent chairperson the provisions of section 30 of the Regulations and objected to the jurisdiction of the Chairperson to hear the charge before it. The chairperson refused the request of the inmate to be informed as to the rule he had allegedly tried to breach and also ruled that he could hear this second charge despite the provisions of section 30. The chairperson proceeded to find the inmate guilty. The Federal Court allowed the inmate's application for judicial review challenging the conviction for this second charge. In the circumstances, it was clear that the inmate expected time to prepare his defence and to have counsel present. He was effectively denied both. Accordingly, the conviction and penalty were set aside and the matter sent for re-hearing before a different chairperson.

Opoonechaw v. Stony Mountain Institution, Inmate Disciplinary Court (1996), 115 F.T.R. 229, [1996] F.C.J. No.1049 (F.C.T.D.) — An inmate was convicted by a disciplinary court of taking an intoxicant into his body contrary to section 40(k) of the CCRA. As part of his sentence, the inmate was required to provide three negative urine samples over a three-month period. The inmate refused to provide a urine sample when requested and was charged with failing to provide the urine sample pursuant to "section 41(l)" of the CCRA and section 71 of the Regulations. The charge should have read "section 40(l)." The inmate also refused a second request for a urine sample. Concerning this second refusal, the Inmate Offence Report and Notification of Charge stated that the inmate was charged with failing to provide a urine sample under section 71 of the Regulations. The disciplinary court convicted the inmate for these acts. The inmate applied for judicial review, arguing that he was not aware of the charges that he had to meet. The Federal Court dismissed the application. The Court held that while the Notification of Charge forms indicate that he was charged under section 41(l), which was inapplicable, the nature of the charge must be otherwise apparent to the inmate. In the Court's view, the forms made it clear to the inmate that he was charged with refusing to provide a urine sample as per the disciplinary court order. It was an error for the first report to state that the charge related to section 41(l). However, both the first and second reports refer to the charge as being a failure or refusal to provide a urine sample as demanded pursuant to section 71 of the Regulations. The reference to section 71 of the Regulations brought the request for a urine sample within section 40(a) of the Act. Therefore, the inmate was aware of the charge that he had to meet and there was no denial of fairness or natural justice in this case.

Savard v. Canada (Attorney General) (1997), 128 F.T.R. 271, [1997] F.C.J. No.105 (F.C.T.D.) — The Federal Court allowed the inmate's application for judicial review on the basis that there was a flagrant breach of section 25 of the Regulations, as the notice of charge contained absolutely no "summary of the evidence to be presented in support of the charge at the hearing." In the Court's view, this breach is fatal. As the notice of charge in this case contained merely a description of the offence and no summary of the evidence to be presented in support of the charge at the hearing before the disciplinary tribunal is given, the Court was forced to find that the authorities did not carry out the will of Parliament, which intended to give an inmate charged with a disciplinary offence a specific and particular means of preparing a full and complete defence, which is a recognized rule of natural justice.

— Right to counsel

Howard v. Stony Mountain Institution Inmate Disciplinary Court (1985), 19 C.C.C. (3d) 195, 19 D.L.R. (4th) 502, 11 Admin.L.R. 63, 45 C.R. (3d) 242 (F.C.A.) — The duty to act fairly was not breached where prison authorities failed to fully complete the "Involuntary Transfer Check List" as prescribed by the "Instructions."

Hnatiuk v. Canada (1987), 12 F.T.R. 44, [1987] F.C.J. No.624 (F.C.T.D.) — The enactment of s7 of the Charter has not created any absolute right to counsel in all disciplinary court proceedings or hearings. It is undoubtedly of the greatest importance to a person whose life, liberty or security of the person are at stake to have the opportunity to present his case as fully and adequately as possible. The advantages of having the assistance of counsel for that purpose are not in doubt. But what is required is an opportunity to present the case adequately. Whether or not an inmate has a right to representation by counsel will depend on the circumstances of the particular case, its nature, its gravity, its complexity, the capacity of the inmate himself to understand the case and present his defence. The list is not exhaustive. Whether or not an inmate's request for representation by counsel can lawfully be refused is not properly referred to as a matter of discretion but is a matter of right where the circumstances are such that the opportunity to present the case adequately calls for representation by counsel. The presiding officer has no authority to adjudicate on the right of an inmate to counsel. The presiding officer will no doubt have to consider and take a position on whether the case is one in which the request for counsel can be denied and he must be prepared to act on his view. Yet, the presiding officer's denial of such a request cannot be regarded as an adjudication of the right and cannot prevent a superior court in the exercise of supervisory jurisdiction from determining the question on its own.

Faulkner v. Stony Mountain Institution (1986), 6 F.T.R. 195, [1986] F.C.J. No.439 (F.C.T.D.) — The Federal Court noted that there was no absolute right to counsel in every instance, and it was not uncommon for the chairman of an administrative tribunal, a quasi-judicial or judicial tribunal, to make the determination of the necessity of the requirement for counsel in a given situation in the interest of natural justice.

Mitchell v. Crozier (1986), 1 F.T.R. 138, [1986] 1 F.C. 255 (F.C.T.D.) — As a result of an inmate's refusal to read the charge sheets given to him, he was under the mistaken belief that the disciplinary charges facing him were categorized as minor rather than serious in nature. As a result, the inmate did not seek to have, and did not have, counsel present. The Court noted that it would appear that on the broad principle of Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.) that the inmate was entitled to be represented by counsel in the proceeding before the disciplinary court because of the possibility of forfeiture of his earned remission. However, this right to representation by counsel must be judged according to the particular circumstances of the case. The Court dealt with the question of whether the inmate's failure to exercise his right to request representation by counsel in disciplinary proceedings, of which he is or should have been aware but for his own conduct, could be afterwards seen to constitute a deprivation of his right to liberty within the meaning of Section 7 of the Charter? The Court thought not. In this case, what led to the inmate's misconception of the nature of the charges was his own conduct and nothing else. The inmate refused on two occasions to read the charges and took it upon himself to categorize them as minor in nature. There was no inducement or representation by the disciplinary court to treat them as other than serious. The inmate was or should have been fully aware of his right to request representation by counsel in relation to the two charges complained of and he chose not to do so.

Savard v. Edmonton Institution Disciplinary Court (1986), 3 F.T.R. 1 (F.C.T.D.) — An inmate was charged with a "serious" disciplinary offence and applied to the Federal Court for a writ of prohibition to prevent the prison's disciplinary court and the warden from proceeding with the charge unless the inmate were permitted to be represented by counsel. The Federal Court refused to grant the order and dismissed the application. In reaching its decision, the Court applied the decision in Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.) to the facts of this case. The Court held that in determining the seriousness of the charge, the first of the factors set out in Howard, it interpreted the Howard case as indicating that the particular circumstances of the individual case must be considered as well as the theoretical consequences which could flow from the charges generally of the type in question. With that said, since in this case there was no allegation of damage to property and due to the fact that the inmate was serving a 25-year life sentence, there was no possibility of the loss of earned or statutory remission. Thus, the Court could not find that the charge is of such a serious nature that, for the reason alone the right to counsel was required in order to ensure that the principles of fundamental justice were complied with. In considering the other elements listed in Howard, the Court found that the charge was not a complex one; it revolved primarily around determinations of fact. Further, there was no indication that the inmate lacked ability or capacity to present his own defence. There was no indication that any procedural difficulties were involved in the case.

Walker v. Kingston Penitentiary Disciplinary Board (1986), 3 F.T.R. 109, 52 C.R. (3d) 106, [1986] F.C.J. No.249 (F.C.T.D.) — Citing Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.), the Court noted that whether the representation by counsel could be held to have been lawfully refused in a given case would depend on the circumstances, and that where the circumstances are such that the opportunity to present the case adequately calls for representation by counsel, then representation by counsel must be seen as a matter of right. The Court felt that in reviewing all the circumstances in this case it was not satisfied that all the circumstances were such that the opportunity to present his case adequately required representation by counsel.

Engen v. Kingston Penitentiary (Disciplinary Board) (1987), 60 C.R. (3d) 109, 12 F.T.R. 7, [1987] F.C.J. No.641 (F.C.T.D.) — Citing Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.), the Court noted that whether the representation by counsel could be held to have been lawfully refused in a given case would depend on the circumstances of the particular case, its nature, its gravity, its complexity, the capacity of the inmate himself to understand the case and present his defence. This list is not exhaustive. In discussing the Howard criteria, the Court stipulated the following. In terms of the nature and gravity of the offence, the Court pointed out that the fact that the offence was classified as intermediary does not automatically preclude his right to counsel. It is the actual gravity of the offence that must be considered, not the name attached to it. The Court held that it would be naïve to suggest that the court, in weighing the seriousness of the offence committed, should ignore the possible consequences of a disciplinary conviction in subsequent proceedings - proceedings that will in turn deal a severe blow to the already shaky structure of an inmate's "liberty." Yet, a consideration of the gravity of the offence is only one of the aspects for analysis in determining the right to counsel. Where the gravity of the offence is established by the fact that a guilty verdict by the disciplinary court could greatly effect subsequent earned remission and parole considerations, the other criteria set out in Howard must be very strictly applied. On the circumstances of this case, the Court held that despite the severe consequences that could result from the inmate's conviction, it could not in light of the other criteria stated in Howard, conclude that the inmate was unable to present his case adequately without counsel. In obiter, the Court went on to say that although the CSC placed great emphasis on the fact that this case raised no complex questions of law and in light of the fact that the inmate here was fully competent to discuss questions of fact which were at issue, it nevertheless remains that the fact that a case raises only questions of fact does not always mean that counsel is not necessary.

Kelly v. Joyceville Institution (Disciplinary Board) (1987), 11 F.T.R. 197, 25 Admin.L.R. 303, [1987] F.C.J. No.409 (F.C.T.D.) — The Federal Court dismissed a challenge to a disciplinary court's refusal to allow the inmate to be represented by counsel. Citing Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.), the Court held that decision regarding an inmate's right to counsel before a disciplinary court is not a matter of the chairperson's discretion, but rather it is and remains an application of Section 7 of the Charter, which is open to review by the Federal Court to determine whether or not the inmate has been deprived of his stated constitutional rights, in accordance with the principles of fundamental justice. An inmate does not have the absolute right to counsel in such circumstances. Applying the Howard criteria to the circumstances in this case, the Court held that the disciplinary court's decision was justified.

Thériault v. Comité de discipline de L'Institution du center Fédéral de Formation (1987), 16 F.T.R. 14, [1987] F.C.J. No.138 (F.C.T.D.) — Where an inmate who was charged with two "intermediary" disciplinary offences was not permitted to be represented by counsel at his hearing, the Federal Court allowed his application to quash the disciplinary court convictions. Citing Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.), the Court held that the chairperson erred in refusing the inmate permission to be represented by an attorney, as it was clear from the transcripts that the inmate had difficulty understanding the charges against him, that some of the concepts involved in the offence in this case involved some special problems of interpretation that even the Presiding Officer of the tribunal admitted to being somewhat ambiguous, and that the inmate was unable to present his own defence.

Tremblay v. Laval Institution (1987), 11 F.T.R. 1, 25 Admin.L.R. 235, [1987] 3 F.C. 73, [1987] F.C.J. No.321 (F.C.T.D.) — The Federal Court allowed an application for judicial review by an inmate who, being charged and convicted of the "intermediary" disciplinary offence of possession of contraband, was refused permission to have legal counsel present at his hearing. The Court applied the criteria set out in Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.). The Court held that having regard to the seriousness of the charge and the potential penalty, the fact that there were points of law at issue, and that the inmate lacked capacity to fully present those points of law, the inmate had a right to be represented by counsel at his disciplinary hearing.

Wright v. Canada (Inmate Disciplinary Court of Stony Mountain) (1987), 4 W.C.B. (2d) 47, 18 F.T.R. 63, [1987] F.C.J. No.1171 (F.C.T.D.) — Section 7 of the Charter has not created any absolute right to counsel in penitentiary disciplinary proceedings. However, the characterization of the offences as "minor," "intermediary" or "serious" is not conclusive on the issue as to whether the request for counsel can be allowed or denied. Even for a so-called "minor" offence, in a proper case, the right might well have to be permitted. Each case must be approached on its own particular circumstances.

Armstrong v. Warkworth Institution (1989), 28 F.T.R. 89, [1989] F.C.J. No.403 (F.C.T.D.) — An inmate was charged and convicted of two disciplinary offences. In challenging the decision by way of judicial review, the inmate argued that the independent chairperson had erred in refusing to allow the inmate to be represented by counsel at the hearing. The Federal Court dismissed this part of the application. Although the chairperson failed to give any consideration to the test to be applied before refusing the request, the Court was nevertheless satisfied that he was right in his refusal. The charge was not of a serious nature. There was no loss of earned remission. The inmate's request for counsel was merely an afterthought as it was made well into the hearing. If the inmate wanted to be represented by counsel he should have asked for an adjournment of the hearing in order to retain counsel or he should have made his request for counsel at the commencement of the hearing. Moreover, the Court was satisfied that the inmate was able to defend himself.

Trudel v. Warkworth Institution (1989), 27 F.T.R. 94, [1989] F.C.J. No.309 (F.C.T.D.) — An inmate was charged and convicted of several disciplinary offences. In his application for judicial review, the inmate took issue with the fact that the chairperson refused counsel to the inmate. The Federal Court dismissed the application. It was a given that there is no right to counsel and that it falls to the chairperson to determine whether an inmate requires counsel in the circumstances of each case. Here, the chairperson ruled against the necessity for counsel on the basis that: 1) the charges were categorized as intermediary offences; 2) the charges of possession of contraband deal strictly with factual issues, and not legal matters the inmate might be incapable of understanding; 3) the inmate appeared to be able to understand the charges and make representations on his own behalf; 4) the inmate was familiar with the procedure having been charged with prior disciplinary offences; 5) the inmate was made aware of the evidence against him at the hearing and was given the opportunity to respond to it. The Court held that there was no suggestion of bias on the part of the chairperson and his refusal to allow the inmate counsel was reasonable in the circumstances.

Vandenameele v. Stony Mountain Institution Inmate Disciplinary Court (1995), 99 F.T.R. 238, [1995] F.C.J. No.1212 (F.C.T.D.) — The Court found that the independent chairperson made no inquiry as to whether the CSC had exercised its responsibility to ensure the inmate was given a reasonable opportunity to retain and instruct legal counsel. There was no doubt that the inmate had adequate time to identify and retain and instruct counsel. However, the passage of time does not satisfy the obligation on the CSC to ensure that an inmate is given a reasonable opportunity to retain and instruct legal counsel as mandated by section 31(2) of the Regulations. In this case, there was no evidence whatsoever before the chairperson that the CSC had met its obligation. While the chairperson also had an obligation pursuant to section 28 of the Regulations to ensure that the inmate's hearing took place as soon as practicable after the events giving rise to the hearing, the Court concluded that the obligation did not excuse him from ensuring that the obligation of the CSC to the inmate under section 31(2) of the Regulations had been fulfilled. In failing in this regard, and in not granting an adjournment if he found the CSC had not fulfilled its obligation, the chairperson failed to fulfill the duty of fairness that rested on him.

Goulet v. Canada (Correctional Service) (1996), 121 F.T.R. 54, [1996] F.C.J. No.1307 (F.C.T.D.) — An inmate requested an adjournment of his disciplinary hearing on the ground that he wished to be represented by a specific attorney from the legal aid office, not in attendance because of a "double-booking" on the attorney's part. A different legal aid lawyer, in attendance, made this request on behalf of the inmate. The chairperson refused the request and the inmate applied for judicial review. In dismissing the application, the Federal Court held that the power to grant adjournments under the law given to the chairperson of the disciplinary court is discretionary, and the question that the Federal Court must ask is whether the denial of the adjournment had the effect of causing irreparable harm to the inmate. The Court stipulated that the effect of the chairperson's refusal to grant the adjournment was to deprive the inmate of the services of his original lawyer. On the question of the right to counsel, the Court noted that the inmate in fact had counsel present. It was therefore wrong to argue that he did not have an opportunity to make representations. In addition, it is difficult to accept that another lawyer could not properly represent the inmate, having regard to the questions that the original lawyer intended to raise. All things considered, it was apparent that the presence of the original lawyer would have done nothing to change the decision. The Court therefore concluded that the denial of the adjournment did not have the effect of violating the principles of procedural fairness.

Pellerin v. Canada (Attorney General) (1997), 141 F.T.R. 18, [1997] F.C.J. No.1378 (F.C.T.D.) — The independent chairperson of a disciplinary court is under no obligation to automatically grant adjournments absent any valid reason being given. However, nothing was more "reasonable," to use the words of section 31 of the Regulations, than the request for postponement by the inmate, taken by surprise by the holding of his disciplinary trial on a day other than the one initially scheduled. Despite the fact that he knew his request would entail another full week for him in administrative segregation, the inmate preferred to request a postponement in order to communicate to his counsel the new date of his trial that had been cancelled the day before.

Gosselin v. Canada (Procureur général) (1998), 152 F.T.R. 201, [1998] F.C.J. No.854 (F.C.T.D.) — The Federal Court dismissed an application where an inmate challenged the decision of a independent chairperson to grant him an adjournment in order to retain a lawyer to represent him at his disciplinary hearing. While the inmate asserted that he was unable to use the newly installed Millennium telephone to contact his lawyer because he had yet to register the lawyer's name on the required list of numbers, the Court held that it was possible for the inmate to have alternatively used the office telephone by simply reserving his telephone time with the CO II in his cell block. As such, the chairperson of the disciplinary court did not err in exercising his discretion in an unfair and discriminatory manner when he refused the request for an adjournment.

— Right to call, confront and cross-examine witnesses

Tonner v. Mountain Institution (1984), 12 W.C.B. 103, [1984] B.C.J. No.915 (B.C.S.C.) — The provincial superior court dismissed an application for habeas corpus with certiorari in aid regarding a disciplinary court conviction. The inmate argued that his Section 7 Charter guarantee to fundamental justice had been violated by the failure on the part of the disciplinary court to produce the author of a written report for cross-examination during the hearing. The Court held that although the chairperson had a duty to be fair, he was not obliged to conduct the hearing in accordance with the rules of a court of law. The chairperson would have failed in his duty had the inmate taken issue with the contents of the report and requested the opportunity to cross-examine the author, but as that had not occurred in this case, the chairperson had acted fairly.

Chalk v. Matsqui Institution [1987] F.C.J. No.339 (F.C.T.D.) — The Federal Court described the decision of an independent chairperson conducting a disciplinary court hearing to take into consideration a report of a correctional officer without calling the author to testify or be available for cross-examination as improper. The Federal Court was of the view that it leads to an appearance of unfairness. Furthermore, the Federal Court asserted that such a report should be excluded entirely from the material before the chairperson unless the author of the report testifies or is at least available for cross-examination.

Vittis v. Mountain Institution (1988), 20 F.T.R. 158, [1988] F.C.J. No.185 (F.C.T.D.) — The Federal Court asserted that if it had concluded from the material before it that the inmate had asked to cross-examine the witness and had been refused, and had it further found that the decision of the chairperson had been based, at least partly, on the witness' report, then the Court would have had no hesitation in granting the inmate's application. However, such was not the case.

Armstrong v. Warkworth Institution (1989), 28 F.T.R. 89, [1989] F.C.J. No.403 (F.C.T.D.) — An inmate was charged and convicted of two disciplinary offences. In challenging the decision the inmate argued that the independent chairperson erred in refusing the inmate a request to call a specific witness. The Federal Court dismissed this part of the application. The Court held that in cases where a witness or witnesses are readily available to be questioned and a request to have the witness testify is made by an inmate, the request should normally be granted if it is determined that what the witness would testify to could or would be a significant factor in determining the guilt or innocence of the inmate. In this case, the Court stated that even if the witness were to have been called, his evidence would not have affected the outcome of the hearing.

Hendrickson v. Kent Institution (1990), 32 F.T.R. 296, [1990] F.C.J. No.19 (F.C.T.D.) — An inmate argued that the independent chairperson erred in that he permitted CSC officials to "split" their case (calling further officers to testify after the inmate had given his testimony), thereby violating the inmate's section 7 Charter rights, paragraph 19 of CD 580, and the general rule of law and practice governing the procedures followed in civil and criminal trials. The Federal Court dismissed the application, as it saw no breach of the duty to act fairly by the independent chairperson. The inmate was present, he was given full opportunity to hear evidence, to give his version of the case, to cross-examine the witnesses, and he even was offered the possibility of an adjournment or to call other witnesses, which he declined. The mere fact that the chairperson, faced with two contradictory versions, decided to further investigate and hear more eyewitnesses to the event, did not mean that he failed to comply with procedural fairness.

Mooring v. Canada (Independent Chairperson for Prison Disciplinary Hearings at Kent Institution) (1989), 29 F.T.R. 193, [1990] 1 F.C. 777, [1989] F.C.J. No.1112 (F.C.T.D.) — While a Commissioner's Directive required that all witnesses against an accused inmate be heard first prior to the inmate's election to testify himself, the Court did not agree with the inmate's submission that under no circumstances may additional evidence be called after the inmate has given his evidence. On the facts of this case, the inmate elected to give evidence and in doing so raised an unanticipated defence. Thus, it was only after the inmate gave evidence that the chairperson was aware of his defence. Under these circumstances the chairperson faced a conflict in the evidence and properly elected to have the second officer give evidence in reply or rebuttal, so that the truth of the inmate's version of the incident could be determined. As such, there was no improper "splitting" of the prosecution's case.

Trudel v. Warkworth Institution (1989), 27 F.T.R. 94, [1989] F.C.J. No.309 (F.C.T.D.) — An inmate was charged and convicted of several counts of the disciplinary offence of possession of contraband. The applicant inmate was searched and found to be in possession of a Timex wristwatch that belonged to an inmate with whom the applicant was double bunked. According to the applicant he was wearing the watch with his cellmate's permission. The next day, a cell search was conducted that resulted in the laying of three more institutional charges that were dealt with as intermediary offences. In his application for judicial review, the applicant took issue with the chairperson's refusal of his request to call his cellmate as a witness. The Federal Court dismissed the application. The Court stressed that if the cellmate would have given evidence confirming the applicant's case, then it certainly may have given more weight to the applicant's case. However, it was clear that the cellmate only claimed the watch and none of the other contraband. The chairperson has to make a judgment call based on the circumstances. The calling of the witness would delay the trying of the issue and require the transfer of the cellmate from another prison where he had been moved. The chairperson ruled that that was unnecessary, and the Federal Court was of the view that the chairperson's conclusion was reasonable and not unfair.

Morin v. Port-Cartier Institution (1991), 42 F.T.R. 155, [1991] F.C.J. No.158 (F.C.T.D.) — An inmate charged with a disciplinary offence indicated to the independent chairperson that he wished to call seven witnesses at his hearing. The chairperson refused this request and informed the inmate that he would be prepared to hear two or three witnesses. The Federal Court allowed the inmate's application for judicial review challenging the chairperson's decision. The Federal Court was satisfied that the chairperson in the present case could not conduct a full and fair inquiry unless he first found out from the inmate who the inmate wanted to call as witnesses, why the applicant wanted to call these individuals as witnesses and then decide if these witnesses could credibly give the evidence the inmate suggests they would give.

Whyte v. Canada (Attorney General) (1999), 177 F.T.R. 260, 29 C.R. (5th) 164, [1999] F.C.J. No.1642 (F.C.T.D.) — An inmate was charged with two disciplinary offenses relating to his alleged participation in activities likely to jeopardize the security of the institution. On a day when he was the "inmate food server" on his range, a disturbance occurred in which one or more inmates (including the applicant) allegedly yelled at the food stewards, resulting in a severe riot. When the applicant inmate appeared before the disciplinary court to face charges arising out of his alleged participation in the riot, he requested the names of the food stewards on duty at the time. The independent chairperson denied that request and convicted the inmate. The Federal Court allowed the inmate's application for judicial review, concluding that the independent chairperson breached the duty of fairness by failing to require an officer of the institution to provide the inmate with the names of the food stewards who were on duty at the relevant time. A new hearing was ordered before a different chairperson.

— Right to make representations (present proof or arguments) and to have them taken into consideration

Blaquiere v. Matsqui Institution (1983), 6 C.C.C. (3d) 293, [1983] F.C.J. No.544 (F.C.T.D.) — Where an inmate was charged and convicted of a disciplinary offence, the chairperson dispensed the sentence without inviting or giving the inmate an opportunity to make submissions as to sentence. The Federal Court was of the opinion that a breach of the duty to act fairly occurred in respect of sentence. The inmate should have been given an opportunity to make submissions as to punishment. The Penitentiary Act and the Penitentiary Service Regulations were silent on this point. However, when the statute and the regulations are read as a whole, particularly in respect of disciplinary proceedings, a right to make submissions before sentence is passed could be found in the scheme of the legislation. Moreover, the right to make submissions before the imposition of punishment or penalties seemed to be a basic point of procedural entitlement in our system of law and legal procedure. The Court saw no reason, in principle, why it should not apply to penitentiary disciplinary hearings.

Bull v. Prison for Women (1986), 7 F.T.R. 278, 25 Admin.L.R. 229, [1986] F.C.J. No.783 (F.C.T.D.) — The Court was satisfied that there was nothing inappropriate in having the inmate and her counsel absent from the hearing room while discussions took place between the chairperson and the two correctional officers concerning the appropriate punishment to be imposed in sentence. However, once the inmate and her counsel returned to the hearing room and were advised of the factors on which the chairperson was relying in making her decision as to sentence, the duty of fairness incumbent on the chairperson required that the inmate be afforded the opportunity to make a reply or to rebut any of the information which influenced or persuaded the chairperson. The Court held that where, in this case, certain information was relied on to conclude that solitary confinement was an appropriate punishment, the inmate was entitled to be informed of all the facts considered to be relevant and to refute the information upon which the chairperson relied.

Armstrong v. Warkworth Institution (1989), 28 F.T.R. 89, [1989] F.C.J. No.403 (F.C.T.D.) — A disciplinary hearing can and should be considered as having two parts. The first part of the hearing is to determine the guilt or innocence of the inmate, the second deals only with the issue of punishment. The Federal Court held that the failure of the chairperson to give the inmate an opportunity to make submissions as to his punishment before it was imposed and the failure to inform on the consultation in his absence was a breach of duty on the part of the chairperson to act fairly.

McWhinney v. Canada (Commissioner of Corrections) (1996), 1 C.R. (5th) 116, 117 F.T.R. 81, [1996] F.C.J. No.1051 (F.C.T.D.) — At a disciplinary hearing, the inmate pleaded "mistake of fact" in his defence. The independent chairperson decided that mistake of fact was not a defence that was open on the charge involved and found the inmate guilty. The Federal Court allowed the inmate's application and quashed the disciplinary court's decision. The Court held that while there appeared to be no absolute right to be able to present full answer and defence in inmate disciplinary hearings, there is a duty to examine both sides of the question. There was no reason why a mistake of fact could not be a valid defence to the charge facing the inmate in this case. In fact, it was the inmate's only defence, and to deprive him of the opportunity to give it amounted to a denying of a full and fair hearing.

Pellerin v. Canada (Attorney General) (1997), 141 F.T.R. 18, [1997] F.C.J. No.1378 (F.C.T.D.) — The Federal Court allowed an application for judicial review and ordered that the inmate be given a new hearing before a different chairperson. The Court found that the independent chairperson did not grant the inmate the possibility of making his own submissions as to sanction, contrary to Paragraph 31(1)(b) of the Regulations. The Court further stipulated that this right is not subject to challenge, not only because it is explicitly recognized by law but also because fundamental justice requires that one listen to the representations of an inmate who has just served 14 days in administrative segregation and to whom one wishes to add a further 15 days, making a total of 29 days, when one knows that the maximum prescribed by the Act is 30 days' segregation.

— Standards of evidence and the standard of proof

Belmont v. Millhaven Institution (1984), 41 C.R. (3d) 91, 9 Admin.L.R. 181, [1984] F.C.J. No.624 (F.C.T.D.) — The Federal Court asserted that it is clearly established that certiorari will issue to quash a decision of an inferior tribunal if that decision is made in the absence of any evidence to support it. It is also clear that the evidence must have some probative force that would tend to show the existence or the non-existence of the facts in issue. In this case, the Court held that it was very difficult to find a link between the evidence adduced before the disciplinary court and the offence for which the inmate was charged. In other words, the inmate was charged with and convicted of having planned and done something deliberately for the very purpose of prejudicing the good order and discipline of the institution. There was no evidence of any such act carried out by the inmate.

Lariviere v. Millhaven Institution (1986), 7 F.T.R. 289, [1986] F.C.J. No.644 (F.C.T.D.) — The Federal Court dismissed an application for judicial review of a decision of a disciplinary board to convict an inmate for the serious disciplinary offence of possession of contraband, namely two gallons of "home brew." The Court held that it was not necessary that there be true expert evidence before the tribunal to show the contraband was, in fact and law, "home brew." The chairperson was entitled to consider the evidence and opinion of all the lay witnesses. The chairperson, in this case, apparently accepted the lay opinion evidence of a correctional officer over the evidence of the inmate, and the opinions of the other two witnesses who were also inmates. A tribunal is entitled, in proper cases, to accept and act on non-expert evidence. The circumstances here, in the Court's view, warranted the reception of, and giving effect to, non-expert opinion evidence.

Lafrenière v. Ste-Anne-des-Plaines Institution [1988] F.C.J. No.1162 (F.C.T.D.) — The Federal Court allowed an application for judicial review and set aside a disciplinary offence conviction for the possession of contraband where the conviction resulted on the basis of the discovery by correctional officers, after a search of the inmate's locker, of a pack of cigarettes containing "a piece of brown substance resembling hashish." The Court held that a reading of the transcript of the disciplinary hearing convinced it that at no time was the nature of the brown substance resembling hashish established. It is elementary that in the case of such charges evidence must be produced of the nature of the substance that the prisoner is accused of unlawfully having in his possession. In this case, such proof was not made.

Lee v. Kent Institution Disciplinary Court (Independent Chairperson) (1993), 70 F.T.R. 155, [1993] F.C.J. No.1136 (F.C.T.D.) — The Federal Court asserted that disciplinary courts were administrative, not judicial or quasi-judicial, proceedings. There was no particular procedure or rules of evidence applicable to such hearings. Such hearings were conducted as inquisitorial and not adversarial proceedings and that in general the only procedural requirement was that the disciplinary court conduct itself with fairness. The Federal Court claimed that it was prepared to assume, without deciding, that for the chairperson to convict the inmate he would have to be satisfied of guilt beyond a reasonable doubt. The Federal Court further assumed that possession of contraband is not proven unless the disciplinary court is satisfied that the inmate knowingly had possession of something that was found in his quarters. In this case, while the chairperson should have taken more care in summarizing the evidence and in stating its conclusions, as the whole hearing process seemed to have been much to casual, the Federal Court found no reviewable error. One could interpret the chairperson's statements in a reasonable manner as conveying that he did not believe on the basis of several factors the inmate's explanation that he did not know of the presence of the knife in his cell. Further, the chairperson had before him evidence upon which he could find as he did and the Federal Court saw nothing in his finding of fact that can be said to be perverse or capricious or made without regard for the material before him.

Pickard v. Mountain Institution Disciplinary Court (1994), 75 F.T.R. 147, 30 C.R. (4th) 399, [1994] F.C.J. No.438 (F.C.T.D.) — An inmate was convicted by a disciplinary court of being in possession of unauthorized items, namely, a quantity of tobacco, pursuant to section 40(j) of the CCRA. The question of whether the tobacco was purchased at the prison canteen or not was a central issue at the hearing, and the only evidence on this point was hearsay evidence provided by a correctional officer to the effect that the inmate had not purchased the tobacco at the canteen. The inmate challenged the conviction and the Federal Court allowed the application for judicial review, referring the matter back for a re-hearing. As the question of whether the inmate had or had not purchased the tobacco from the canteen was central to the case against him, fairness required that the chairperson insist on having firsthand evidence on this question. If that evidence depended in part on records kept in the regular course of business in the canteen, then someone who could identify them and answer questions on them should have produced those records. While it was not central to the conviction, the Court also found disturbing, near the end of the transcript of the hearing, a number of interventions by someone described only as "unidentified speaker." This person was offering information and opinions that were apparently designed to persuade the chairperson that it was unlikely if not impossible for the inmate to have purchased this much tobacco at the canteen.

Mineau v. Port-Cartier Penitentiary (1997), 129 F.T.R. 189, [1997] F.C.J. No.459 (F.C.T.D.) — The Federal Court set aside a disciplinary court conviction where an inmate was charged, pursuant to section 40(i) of the CCRA, with the possession of an intoxicant. A correctional officer, who was the only witness who testified at the hearing, identified the substance found in the inmate's cell as bootleg alcohol, based mainly on the texture and odour given off by the product, his experience in this area and his personal knowledge of alcohol. The Federal Court held that it is not sufficient for a correctional officer to testify as to the texture and the odour given off by the product in question in order to establish that the product had the potential to impair or alter judgment, behaviour or the capacity to recognize reality, and so on, on the part of the person in possession of it. The officer's experience in this area and personal knowledge of alcohol could not substitute for scientific, technical or specialized testimony, which would at least have indicated the level of alcohol in the container discovered in the inmate's cell.

Ryan v. William Head Institution [1997] F.C.J. No.1290 (F.C.T.D.) — Three inmates who lived together in a housing unit were charged and convicted of possession of contraband pursuant to subsection 40(i) of the CCRA after a correctional officer found home brew in an ice cream container in their freezer. In challenging the disciplinary conviction, the inmates argued that the authorities failed to discharge the burden of proof set out in subsection 43(3) of the CCRA. The Federal Court dismissed the application. The Federal Court noted that the chairperson of the disciplinary court demonstrated, in his comments during the hearing, that he was well aware that he was dealing with a case in which the issue was constructive possession. Control and knowledge by the accused had to be proven. In this case, the chairperson had before him evidence that: 1) the inmates lived in a house that was out of bounds to everyone but the three inmates; 2 ) the brew was in open view in the freezer, an area used on an everyday basis for food and drink; 3) the premises had smelled of brew approximately 30 hours before the brew was found; 4) all occupants of the unit had been up late the previous night and had been louder than usual. The chairperson also commented that as occupants of the house the inmates lived in a closely associated manner. The Court held that the inference the chairperson drew about the inmates' knowledge was reasonably open to him on the facts. The chairperson understood and applied the correct law.

Bailey v. Canada (Attorney General) [2001] F.C.J. No.1307, 2001 FCT 935 (F.C.T.D.) — The Court held that it is apparent from subsection 43(3) that the burden of proof that applies at the disciplinary hearings provided for in the Act is the burden of proof in criminal matters. Moreover, not only must the inmate be guilty beyond a reasonable doubt, the burden is on the Crown to prove guilt. In this case, the CSC acknowledged that there was no direct evidence of possession on the part of the applicant. They argued that there was circumstantial evidence of such possession. It is not denied that the inmate had the opportunity to commit the act with which he was charged. The Court held, however, that the evidence submitted to prove his guilt was deficient.

Durie v. Canada (Attorney General) (2001), 201 F.T.R. 8, 2001 FCT 22, [2001] F.C.J. No.169 (F.C.T.D.) — The Federal Court held that the onus of proof is on the Respondent (prosecutor) in inmate disciplinary hearings. The onus shifts to the Applicant (accused) when the Respondent has shown that the offence has taken place and the applicant is offering lawful excuse. The chairperson in this case erred in requiring medical evidence and/or documentation. An inmate is entitled to offer evidence on lawful excuse and the chairperson should weigh the evidence and determine whether it constitutes lawful excuse. An inmate is not required to produce medical evidence or documentary evidence, but in many cases it would be in the inmate's interest to do so. There is no standard type of evidence that is required by law.

— Provision of reasons

Lariviere v. Millhaven Institution (1986), 7 F.T.R. 289, [1986] F.C.J. No.644 (F.C.T.D.) — The Federal Court dismissed an application for judicial review of a decision of a disciplinary board to convict an inmate for the serious disciplinary offence of possession of contraband, namely two gallons of "home brew." The Court held that the materials before it did not disclose, one way or the other, whether the chairperson orally indicated he preferred the evidence given by a correctional officer to the evidence given by the inmate and two other witnesses. He may, for all that is known, have said nothing. Even if the latter were the case, it was not essential the chairperson should give reasons, or indicate, why he preferred and accepted the officer's evidence that the contraband was "home brew." This disciplinary tribunal is not a court in the criminal law sense. It is not bound by all the ordinary rules of evidence.

Picton v. Edmonton Institution (1989), 30 F.T.R. 18, [1989] F.C.J. No.630 (F.C.T.D.) — An inmate was convicted of a disciplinary offence and applied for certiorari to quash the decision on the grounds that the disciplinary court failed to make a transcript of the hearing. The Federal Court dismissed the application. The Court held that the absence of the transcript is not in and of itself enough to establish the relief of certiorari. In this case, the only grievance raised by the inmate in his sworn statement was that he disagreed with the decision. There was no allegation of a reviewable error during the proceedings, nor was there an allegation of a denial of natural justice to the inmate. The absence of the record alone is not enough to establish either one.

Laflamme v. Canada (Correctional Service) (1998), 154 F.T.R. 178, [1998] F.C.J. No.1029 (F.C.T.D.) — An inmate was convicted of a disciplinary offence where both the charge and the disciplinary court's decision appeared on the notification of charge. It was unclear from that document what offence the inmate was convicted of as the notification simply described the charge as possession of stolen property, but stated that the charge was brought under section 40(i) of the CCRA, which dealt with possession of contraband. Consequently, the Federal Court found that the inmate did not appear to be treated fairly as it could not be ascertained from that evidence which of the offences referred to in the notification is "the disciplinary offence in question" for the purposes of subsection 43(3) of the Act. Furthermore, section 33 of the Regulations requires that the hearing of the inmate's disciplinary offence be recorded. Due to a mechanical failure the hearing in this case could not be recorded properly and was inaudible. Given that the inmate had always maintained that he was never in possession of the item in question, the fact that there was no audible recording also prevented the Federal Court from properly reviewing the administrative tribunal's assessment of evidence and findings of fact. Therefore, in the circumstances, the Court was of the view that there was a serious possibility of an error regarding which the lack of recording deprived the inmate of the grounds for applying for judicial review to which he was entitled by virtue of his rights to natural justice and procedural fairness, and under the Act. The application was allowed, the decision of the disciplinary court set aside and the matter was referred back for a rehearing.

Substantive Review of the Grounds for Decision

Bernier v. Kent Institution (1986), 7 F.T.R. 229, additional reasons at (1986), 9 F.T.R. 123, [1986] F.C.J. No.1003 (F.C.T.D.) — The Federal Court held that none of the legislative provisions bestowed any authority on the chairperson to stay the charges against the inmate. The decision as to whether an inmate should be charged with a disciplinary offence and whether circumstances warrant dropping or dismissing those charges is clearly within the ambit of jurisdiction of the head of the institution. The independent chairperson of the disciplinary court is clearly charged with only three functions pursuant to section 38 of the Regulations: 1) to preside over a disciplinary court; 2) to determine the innocence or guilt of an inmate based on the evidence presented at the hearing; and 3) to impose an appropriate punishment for the offence. Accordingly, the Federal Court was satisfied therefore that the chairperson did not act in excess of or without jurisdiction when he failed to entertain the inmate's preliminary application to stay the charge against him.

Gosselin v. Matsqui Institution (1987), 21 F.T.R. 129, [1987] F.C.J. No.340 (F.C.T.D.) — An inmate was charged and convicted, pursuant to section 39(k) of the Penitentiary Service Regulations, of the disciplinary offense of doing an act calculated to prejudice the discipline or good order of the institution. In challenging the conviction by way of judicial review, the inmate contended that the chairperson acted without jurisdiction, as there was an absence of any evidence to support the charge. The Federal Court agreed, allowed the application and quashed the conviction. The Court held that the evidence established only that the inmate entered a cell in which there were two cups of "brew." There was no evidence to suggest that he or anyone else in the cell was drinking the brew while he was there. The evidence varied as to the amount of time he had been in the cell prior to the arrival of the guards but the longest estimate was perhaps five minutes. The Court was unable to see how the evidence in support of the charge could demonstrate that the inmate was doing something "deliberately for the very purpose of prejudicing the good order and discipline of the Institution." It did not even demonstrate that what he did was in reckless disregard for the good order and discipline of the institution. He was simply present where, arguably, others were committing some offence. In Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.), the Court of Appeal remarked on the vagueness of any charge laid under paragraph 39(k) of the Regulations and indicated that such vagueness warranted greater care in ensuring that a person accused under that paragraph is enabled to make his defence. For the same reason, this vagueness required that the evidence demonstrate the necessary intent, or perhaps a reckless disregard, with respect to prejudicing the discipline or good order of the institution. No such evidence was presented in this case.

Clark v. Matsqui Institution (1988), 21 F.T.R. 158, [1988] F.C.J. No.650 (F.C.T.D.) — An inmate was found guilty of the charge of assault by a disciplinary court, pursuant to section 39(b) of the Penitentiary Service Regulations. The Federal Court allowed the application and quashed the conviction. In the Court's mind, the ordinary lay meaning of assault is an attack of some kind, intentionally, by one person on another. Merely protecting oneself or defending oneself by retaliatory measures does not amount to assault by one inmate on another person. The chairperson in this case equated participation in a fight as the committing of assault. On the evidence, the participation by the inmate applicant was to protect him-self. Accordingly, there was an error in law in the decision reached. The mere fact that the inmate applicant was in a fight did not mean he was guilty of assault as stated by the chairperson. To put it another way, the evidence before the disciplinary court could not support the conviction for a disciplinary offence based on paragraph 39(b).

Buyens v. William Head Institution (1992), 12 C.R. (4th) 258, 52 F.T.R. 99, [1992] F.C.J. No.137 (F.C.T.D.) — An inmate commented to a correctional officer conducting a search that another officer, who was not present during the search, had "set him up" after contraband was found in his cell. The inmate was charged and convicted of a disciplinary offence contrary to section 39(g) of the Penitentiary Service Regulations which stated that every inmate is guilty of a disciplinary offence who "behaves toward any other person, by his actions, language of writing, in an indecent, disrespectful, threatening or defamatory manner." The Federal Court allowed the application and quashed the conviction. The inmate's remark was far from an unequivocal threat or indecent, disrespectful or defamatory in nature, thus the chairperson erred in law by not according the inmate the benefit of the doubt. Moreover, the chairperson also erred in that the inmate could hardly have behaved "toward" the officer in question "by language…in a disrespectful manner" if that officer was not present when the comment was made.

Crawford v. William Head Penitentiary (1992), 56 F.T.R. 32, [1992] 3 F.C. 539 (F.C.T.D.) - Two inmates were directed by order of a penitentiary officer to submit to being photographed by means of computerized photographic identification equipment, known as the image capture system. After refusing the order, both inmates were charged with a disciplinary offence contrary to section 39(a) of the Penitentiary Service Regulations, for failure to obey a lawful order. Both being found guilty by the disciplinary court, each was ordered to pay a $10 fine. An application for judicial review of the disciplinary court decision was dismissed. The Federal Court found that section 2 of the Identification of Criminals Act and an order-in-council pursuant to that Act authorized the use of the system. Furthermore, the use of such a system did not violate the inmates' section 7 Charter rights.

Barnaby v. Donnacona Correctional Institution (1995), 105 F.T.R. 64, [1995] F.C.J. No.1541 (F.C.T.D.) — Curial respect for an administrative tribunal's disciplinary decisions in a correctional environment is as high as for any other tribunal. The rule of evidence in criminal matters does not apply to it. The tribunal may admit any evidence that it considers reasonable or trustworthy. It did not really matter whether on the face of the same evidence someone else might have reached a different conclusion. It was only necessary to be seized of sufficient evidence on which the necessary and ultimate verdict may be made. The evidence before the tribunal in this case was indeed circumstantial, but it was nevertheless evidence. In particular, the obligation of the tribunal chairperson, pursuant to section 30 of the Act, is "to decide if the evidence produced…substantiates beyond a reasonable doubt each charge against the inmate." In the Court's view, if there was evidence, and if in light of that evidence it was found that an offence was committed beyond a reasonable doubt, it should very much doubt if a court, on a judicial review, would be justified in intervening.

Penner v. Stony Mountain Institution Inmate Disciplinary Court (1995), 101 F.T.R. 148, [1995] F.C.J. No.1218 (F.C.T.D.) — An inmate was observed by a correctional officer to be staggering and weaving down a corridor in the institution. The correctional officer proceeded to obtain prior authorization, pursuant to section 54(a) of the CCRA, in order to demand that the inmate submit to urinalysis. That authorization having been obtained, the demand was made of the inmate almost 24 hours after the observation. The inmate declined to give a sample and was subsequently found guilty in disciplinary court of refusing to provide a urine sample when demanded pursuant to section 54 of the CCRA. The inmate argued that the delay between the time when his suspect conduct was observed and the time a urine sample was demanded seriously prejudiced the inmate through infringement of his capacity to provide a credible and verifiable explanation for his conduct and through erosion of his capacity to prepare a defence against a disciplinary charge. The Federal Court was not persuaded by the inmate's argument and dismissed the application. While a lengthy delay between establishment of a reasonable belief and a demand that an inmate submit to urinalysis might truly be prejudicial to the inmate and a breach of fairness, the Court was not satisfied that a delay of close to 24 hours produced such a result. Further, by failing to take of advantage of the opportunity to make representations, given to him at the time of the demand for a sample, the inmate exposed himself to the risk of a conviction on a disciplinary charge.

Neiman v. Stony Mountain Institution, Institution Disciplinary Court (1996), 120 F.T.R. 76, [1996] F.C.J. No.1414 (F.C.T.D.) — under section 40(k) of the CCRA, an inmate was "required to provide a sample each month until three consecutive negative monthly samples have been provided." These were taken from him on December 28, 1994, on January 4, 1995, and on February 7, 1995. The urine sample that was taken on January 4, 1995 tested positive. The inmate submitted that the taking of the urine samples was not in accordance with section 71 of the Regulations, which mandated that the testing be done at 28 to 30 day intervals. The Federal Court did not agree with the inmate's submissions and dismissed the application. The Court held that had it been intended that the testing occur at 28 to 30 day intervals, the regulation would have been precisely drafted in those terms. Moreover, the French text was taken by the Court to be clearer than the English version. It provides that testing shall be done every month until three consecutive positive test results are obtained. It supports the position that the exact interval of the number of days between tests is not important. Lastly, the Court found the CSC's argument, that it is important in administering such a testing program that there be scope for random testing, a relevant consideration. Such would not be available if an inmate knew that after the first test he would not be retested for another 28 to 30 days.

Trunzo v. Stony Mountain Penitentiary Disciplinary Court (1996), 124 F.T.R.101, [1996] F.C.J. No.1500 (F.C.T.D.) — An inmate was convicted and fined $35 by a disciplinary court for failing and refusing to provide a urine sample when demanded pursuant to section 54(a) of the CCRA. The inmate had provided only 10 millilitres of urine rather then the minimum 40 millilitres required. The inmate challenged the disciplinary court's decision, arguing that there was no requirement in the Regulations under the CCRA that a 40 millilitre sample must be given. The Federal Court did not agree, dismissed the application and awarded costs of $300 against the inmate. The Court held that the definition of "approved procedure" in section 60 of the Regulations incorporated by reference the procedures set out in the Commissioner's Directives. The CDs incorporate by reference, to the extent set out in paragraph 24 of CD 572, the Guidelines for Urinalysis Program in Institutions and in the Community. Section 36 of the Guidelines sets forth the "approximately 40 millilitres" requirement. While in themselves they may not be law, when read in conjunction with the definition of "approved procedure" in section 60 of the Regulations, it was apparent that the CDs and Guidelines have been incorporated by reference into the Regulations and are, to this extent, law.

Beaudoin v. William Head Institution (1997), 139 F.T.R. 133, [1997] F.C.J. No.1663 (F.C.T.D.) — The Federal Court allowed the application and set aside the disciplinary conviction. The Federal Court expressed the view that on the facts of this matter, at least in respect of the applicant B, there was simply no evidence before the chairperson on which to conclude that the officer who demanded the urine sample from B had "reasonable grounds" to believe, as required by section 54(a) , that B had ingested an intoxicant. The only evidence before the chairperson, that being of a strong odour of hashish in the living unit in question, was that someone had ingested an intoxicant. Six inmates lived in the unit of which B was one. There was no evidence to indicate that other inmates in the institution had not been or could not have been present in the living unit in the minutes immediately preceding the time when the officer detected the odour of hashish. Several persons may have been responsible. Further, one of the applicants suggested to the officer that the odour in question was not, in fact, hashish but a cooking odour resulting from the meal that the residents had cooked themselves earlier in the evening. In the end, the Federal Court concluded that the chairperson committed a reviewable error in convicting B in that he had no evidence before him on which to conclude that the officer who demanded that B submit to urinalysis had reasonable grounds to believe that he had ingested an intoxicant.

McLarty v. Canada (1997), 133 F.T.R. 11, [1997] F.C.J. No.808 (F.C.T.D.) — The chairperson had to be satisfied that guilt was the only reasonable inference to be drawn from the facts. The Court was of the view that the chairperson could not reasonably be satisfied in this case. The chairperson was entitled to disbelieve the inmate's explanation but he could not infer guilt on sheer speculation.

Simoneau v. Canada (Correctional Service) (1998), 40 W.C.B. (2d) 17, [1998] F.C.J. No.1078 (F.C.T.D.), 1998 CanLII 8011 (F.C.) — An inmate was convicted of the disciplinary offence of taking an intoxicant into his body as set out in paragraph 40(k) of the CCRA, and consequently was required pursuant to section 71 of the Regulations to provide a urine sample every three months until three consecutive negative samples were given. On November 26, 1996, the inmate provided the first sample required under section 71 of the Regulations and the result was negative. On December 17, 1996, the inmate refused to provide a second sample and was later convicted underparagraph 40(a) of the Act for the disciplinary offence of disobeying a justifiable order of a staff member to provide a urine sample. On January 31, 1997, the inmate provided a sample for which the result was positive and as a result, on February 19, 1997, the inmate was convicted for taking an intoxicant under paragraph 40(k) of the Act. On February 24th, the correctional officer was informed of the February 19 conviction. That same day, the inmate provided a negative sample. The inmate later provided negative samples on April 24, 1997, and May 16, 1997. On June 17, 1997, a sample was requested and refused. On August 13, 1997, the inmate was charged and convicted under paragraph 40(a) of the Act for the June 17, 1997 refusal to provide a sample. The inmate applied for judicial review of the August 13 conviction. The Federal Court allowed the application and set aside the conviction. The Court noted that only after providing a urine sample on February 24, 1997 was the inmate notified by the corrections officer that he would be required to provide the monthly samples, pursuant to section 71 of the Regulations, for the conviction of February 19, 1997 conviction. Yet, the gist of all this was that the inmate provided three consecutive negative samples following the February 19, 1997 conviction, but the officer did not want to include the February 24 sample for the purposes of the February 19 conviction. The Court held that the inmate was not responsible for the fact that the corrections officer was not informed until February 24 that the chairperson had given a decision on February 19. The fact that the officer did not ask the inmate to provide a urine sample during the month of March 1997 does not depend on the inmate. The inmate provided three consecutive samples, on February 24, April 24, and May 16, as required, and all turned out to be negative. In these very specific circumstances, the Court concluded that it would be unfair and unreasonable to hold that the inmate failed to comply with section 71 of the Regulations.

Grenier c. Comité de discipline du pénitencier de Donnacona (1999), 180 F.T.R. 37, [1999] F.C.J. No.1538 (F.C.T.D.) — An inmate was on his way to his class wearing his slippers. A correctional officer asked him to remove them and put on running shoes or shoes. When the inmate refused he was ordered back to his cell. In frustration, the inmate tossed his sheaf of papers, held together by a Duo-tang binder, in the vicinity of the officer. The inmate was then charged and convicted of a disciplinary offence under section 40(m) of the CCRA, which provides that an inmate commits a disciplinary offense where he or she creates or participates in a disturbance, or any other activity that is likely to jeopardize the security of the penitentiary. The Federal Court allowed the inmate's application for judicial review and quashed the decision of the disciplinary board. The Federal Court held that while the inmate's actions were regrettable, there was no evidence to show that this action jeopardized the security of the penitentiary. The decision to convict was, therefore, patently unreasonable.

Canada (Attorney General) v. Deas (2001), 2001 FCT 926, [2001] F.C.J. No.1302 (F.C.T.D.) — The Court found that the independent chairperson erred by acquitting the inmate of the charge laid against him on the sole ground that some of the information appearing on the Inmate Offence Report and Notification of Charge had not been translated in English. The Court was of the view that despite the fact that some of the information on the report was not translated, the inmate was fully made aware of what the allegations were and the nature of the evidence against him and was afforded a reasonable opportunity to respond to the evidence and to give his version of the matter. Further, the inmate or his legal counsel never complained or raised the issue upon signing the Inmate Offence Report or during the disciplinary hearing.

Royer v. Canada (Attorney General) [2001] F.C.J. No.1869, 2001 CFPI 1359 (F.C.T.D.) — The question of the interpretation to be given the phrase "each month" contained in section 71 of the Regulations was decided by the Federal Court in Neiman v. Stoney Mountain Institution, [1996] F.C.J. No.1414 (F.C.T.D.). The Court concluded that this phrase meant that the urinalysis requests should be made in consecutive months but did not necessarily imply that the interval between each request should be 30 days. The Court held that Section 71 of the Regulations is no way ultra vires the Act. Further, section 71 and sections 69 to 72 of the Regulations fall under the subheading "Consequences of positive test results" which itself comes under the more general heading "Urinalysis Testing," thus confirming its legislative derivation. Nothing in the Act specifically prohibits the adoption of such a regulation, not even section 54, which in no way states that a urinalysis request cannot be authorized or required except in the situations stated in the section. Furthermore, the urinalysis requested under section 71 of the Regulations are an administrative measure available to the prison authorities, who can use it to counter drug use by inmates in penitentiaries, not a disciplinary penalty. The disciplinary penalties that may be imposed on an inmate found guilty of a disciplinary offence are those set out in section 44(1) of the Act. Consequently, section 71 of the Regulations is entirely consistent with the Act and its enabling provision and so allowed the prison authorities to ask the inmate to submit to urinalysis. However, the Court also stipulated that the disciplinary penalties which may be imposed on an inmate found guilty of a disciplinary offence are those set out in section 44(1) of the Act, and consequently section 71 of the Regulations does not authorize the prison authorities to impose any further punishment or disciplinary penalty.

— Fettering of Discretion

Davidson v. Prison for Women (1981), 61 C.C.C. (2d) 521, [1981] F.C.J. No.602 (F.C.T.D.) — In dispute in this case was section 12 of Annex A to the Commissioner's Directives 213, which categorically dictated the response to a request that an inmate be represented by counsel shall be that "he is not entitled to counsel and that the hearing will proceed without the accused person being represented." The inmate challenged by way of judicial review a disciplinary offence conviction, where the presiding officer of the disciplinary court refused her request to be represented by counsel on the basis of the above CD. The Federal Court allowed the application and quashed the conviction, holding that paragraph 12(a) of CD 213 offended against a fundamental principle of natural justice in that it purported not only to fetter the discretion of the Disciplinary Court but to dictate to that Court how its discretion should be exercised. It was therefore reprehensible and invalid. In other words, not only did the presiding officer fail to exercise an independent discretion the CD purports to dictate how that discretion shall be exercised and if that dictation was followed by her, as it was, then she was not an independent tribunal. It is the right of a person to be heard by a deciding authority unbiased in the legal sense, which does not include a tribunal subject to the influence of an external authority, and in this particular instance an authority which improperly directs the deciding authority how her discretion, which is hers alone to exercise, shall be exercised.

Commissioner's Directives and Standard Operating Practices

Martineau and Butters v. Matsqui Institution Inmate Disciplinary Board (1977), 33 C.C.C. (2d) 366, 74 D.L.R. (3d) 1, [1978] 1 S.C.R. 118, 14 N.R. 285 (S.C.C.) — The Supreme Court had no doubt that Regulations are law, yet it did not think that the same could be said of the Commissioner's Directives. It is not in any legislative capacity that the Commissioner is authorized to issue directives but in his administrative capacity. It is important to distinguish between duties imposed on public employees by statutes or regulations having the force of law and obligations prescribed by virtue of their condition of public employees. The members of a disciplinary board are not high public officers but ordinarily civil servants. The Commissioner's Directives are no more than directions as to the manner of carrying out their duties in the administration of the institution where they are employed.

Minott v. Stony Mountain Penitentiary [1982] 1 F.C. 322 (F.C.T.D.) — An inmate applied for an order of prohibition to prevent the continuation of a disciplinary court hearing against him. A request for permission to have counsel represent him was denied on the basis of s12a of the Commissioner's Directives 213, which prohibited inmates from being represented by counsel at disciplinary hearings. The Federal Court allowed the motion. In arriving at the decision to deny the inmate counsel, the Presiding Officer of the disciplinary court relied on, and placed undue emphasis on the Commissioner's Directives without giving proper consideration to several sections of the Penitentiary Service Regulations that conflicted with s12. Section 12 of the Directive, which in effect, was no more than an administrative decision, was ineffective as being overridden by provisions of the Regulations. The Court held that s12a of CD 213 cannot be considered as "law," and since the Regulations are "law," the Regulations must govern and override the provisions of s12a of CD 213. Accordingly, provision 12a was ultra vires in so far as a hearing before a disciplinary court was concerned.

Davidson v. Prison for Women (1981), 61 C.C.C. (2d) 521, [1981] F.C.J. No.602 (F.C.T.D.) — Commissioner's Directives, which were rules made by the Commissioner under the authority of section 29(3) of the Penitentiary Act, are not to be considered "law" unlike the Penitentiary Act itself and the Penitentiary Service Regulations. In dispute in this case was section 12 of Annex A to the Commissioner's Directives 213, which categorically dictated the response to a request that an inmate be represented by counsel shall be that "he is not entitled to counsel and that the hearing will proceed without the accused person being represented." The Federal Court held that paragraph 12(a) of CD 213 offended against a fundamental principle of natural justice in that it purported not only to fetter the discretion of the Disciplinary Court but to dictate to that Court how its discretion should be exercised. In the Federal Court's view, that directive was therefore reprehensible and invalid.

Belmont v. Millhaven Institution (1984), 41 C.R. (3d) 91, 9 Admin.L.R. 181, [1984] F.C.J. No.624 (F.C.T.D.) — The Court held that the Commissioner's Directives, in play in this case, imposing criminal law standards does not have the force of law, but it must be considered so as to determine whether or not there has been a breach of the duty of any tribunal to act fairly. The high standard set out in the Commissioner's Directives is an indication of the views of the authorities of the penitentiary as to the degree of procedural protection to be extended to the inmates.

Lariviere v. Millhaven Institution (1986), 7 F.T.R. 289, [1986] F.C.J. No.644 (F.C.T.D.) — The inmate applicant contended that s743.3 of the Criminal Code gave the Commissioner's Directives, as to the recording of proceedings, the force of law. It was further said the two well-known Martineau decisions must be reconsidered because s743.3 was not raised. The Federal Court was of the opinion that s743.3 does not impugn, in any way, the Martineau decisions: that the Commissioner's Directives do not have the force of law. The Criminal Code provision relied on merely provides, as it explicitly says, the prisoner's sentence will be served in accordance with the regulations and rules governing the particular institution. That is directed to rules governing the conduct of prisoners, not any administrative tribunal procedural rules required of the institution, or in this case, the institution's disciplinary board.

Armstrong v. Warkworth Institution (1989), 28 F.T.R. 89, [1989] F.C.J. No.403 (F.C.T.D.) — Counsel for the respondent CSC agreed with the submissions of the inmate applicant that the Commissioner's Directives have been held not to be law but a breach of these Directives is indicative of a breach of the duty to act fairly.

Picton v. Edmonton Institution (1989), 30 F.T.R. 18, [1989] F.C.J. No.630 (F.C.T.D.) —- An inmate was convicted of a disciplinary offence and applied for certiorari to quash the decision on the grounds that the disciplinary court's failure to make a transcript of the hearing was a breach of the Commissioner's Directives. The Federal Court dismissed the application. The Court asserted that while the Commissioner's Directives are quite important, and in the conduct of a disciplinary hearing must be observed, they nevertheless do not have the force of law. Citing past case authority, the Court held that the absence of the transcript is not in and of itself enough to establish the relief of certiorari. In this case, the only grievance raised by the inmate in his sworn statement was that he disagreed with the decision. There was no allegation of a reviewable error during the proceedings, nor was there an allegation of a denial of natural justice to the inmate. The absence of the record alone is not enough to establish either one.

Canada (Attorney General) v. Plante (1995), 103 F.T.R. 161, [1995] F.C.J. No.1509 (F.C.T.D.) — An inmate was acquitted of a disciplinary offense by the institution's disciplinary court on the grounds that the Inmate Offence Report and Notification of Charge was delivered to him after the expiration of a two-day period set out in the Commissioner's Directives. The Attorney General sought judicial review of the disciplinary court's decision. In allowing the application, the Federal Court found it sufficiently clear on reading the decision that the disciplinary court considered compliance with the two-day limit set out in s15 of Directive 580 to be mandatory, without it having to ask whether in fact the failure to comply with this limit in the specific circumstances of the case had prejudiced the inmate by preventing him from preparing a full answer and defence. In the Court's opinion, by adopting this position the disciplinary court wrongly attributed a legislative effect to the Directive and failed to exercise its jurisdiction. It is well established that the Commissioner's Directives are clearly of an administrative, not a legislative, nature.

Summary conviction offences

Summary conviction offences

45. Every person commits a summary conviction offence who

  • (a) is in possession of contraband beyond the visitor control point in a penitentiary;
  • (b) is in possession of anything referred to in paragraph (b) or (c) of the definition “contraband” in section 2 before the visitor control point at a penitentiary;
  • (c) delivers contraband to, or receives contraband from, an inmate;
  • (d) without prior authorization, delivers jewellery to, or receives jewellery from, an inmate; or
  • (e) trespasses at a penitentiary.

Judicial Consideration —

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Search and Seizure

Interpretation

Definitions

46. In sections 47 to 67,

body cavity means the rectum or vagina; (cavité corporelle)

body cavity search means the physical probing of a body cavity, in the prescribed manner; (examen des cavités corporelles)

frisk search means

  • (a) a manual search, or a search by technical means, of the clothed body, in the prescribed manner, and
  • (b) a search of
    • (i) personal possessions, including clothing, that the person may be carrying, and
    • (ii) any coat or jacket that the person has been requested to remove,
    in accordance with any applicable regulations made under paragraph 96(l); (fouille par palpation)

non-intrusive search means

  • (a) a search of a non-intrusive nature of the clothed body by technical means, in the prescribed manner, and
  • (b) a search of
    • (i) personal possessions, including clothing, that the person may be carrying, and
    • (ii) any coat or jacket that the person has been requested to remove,
    in accordance with any applicable regulations made under paragraph 96(l); (fouille discrète)

strip search means

  • (a) a visual inspection of the naked body, in the prescribed manner, and
  • (b) a search, in accordance with any applicable regulations made under paragraph 96(l), of all clothing, things in the clothing, and other personal possessions that the person may be carrying; (fouille à nu)

urinalysis means a prescribed procedure by which a person provides a urine sample, by the normal excretory process, for analysis. (prise d’échantillon d’urine)

1992, c. 20, s. 46; 1995, c. 42, s. 13(F).

Judicial Consideration —

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Corresponding Regulations: Sections 43-59 Search and Seizure and Section 60-72 Urinalysis Testing

Searches of Inmates

Routine non-intrusive or frisk searches

47. (1) A staff member may conduct routine non-intrusive searches or routine frisk searches of inmates, without individualized suspicion, in the prescribed circumstances, which circumstances must be limited to what is reasonably required for security purposes.

Idem

(2) A person providing services of a prescribed class to the Service under a contract has the power to search that a staff member is authorized to conduct under subsection (1) if

  • (a) the conducting of such searches is provided for in the contract but does not constitute the person’s principal services under the contract;
  • (b) the searches are reasonably related to the person’s principal services under the contract; and
  • (c) the person has received the prescribed training to conduct such searches.

1992, c. 20, s. 47; 1995, c. 42, s. 14(F).

Judicial Consideration —

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Gunn v. Yeomans (No.2) (1980), 55 C.C.C. (2d) 452, 114 D.L.R. (3d) 289, [1981] 2 F.C. 99 (F.C.T.D.) — Section 41(2) of the Penitentiary Service Regulations provided that "where the institutional head of a federal penitentiary suspects, on reasonable grounds, that an… inmate… is in possession of contraband he may order that person to be searched…" Under the Penitentiary Act, the institutional head was also responsible for the direction of his staff, the organization, safety and security of his institution and the correctional training of all inmates confined within the institution. To that end he may issue standing orders peculiar to his institution and routine orders to give information and direction to all officers under his command. Both standing orders and routine orders are issued under the authority of the Commissioner. It follows that since the Commissioner cannot issue directives in conflict with the Regulations he cannot authorize standing orders that will do so. In this case, the institutional head had issued standing orders requiring employees to ensure that all inmates are thoroughly skin-frisked before leaving and when returning to the penitentiary. Accordingly, the Court held that such standing orders were unlawful because they were in conflict with section 41(2) of the Regulations. This Regulation prescribed the circumstances under which the institutional head may order the search of an inmate for contraband. He must suspect, on reasonable grounds, that the inmate to be searched is in possession of contraband as a condition precedent to ordering the search. While the institutional head might be justified in holding the suspicion that each and every inmate who leaves the institution and returns thereto on temporary, but authorized, absences is likely to be carrying contraband the Court did not think that such suspicion is held on reasonable grounds with respect to a particular inmate. The suspicion must be specific and not a suspicion generally held.

Robertson v. Yeomans (1981), 58 C.C.C. (2d) 1, 121 D.L.R. (3d) 353, [1982] 1 F.C. 53 (F.C.T.D.) — In response to the decision in Gunn v. Yeomans (No.2) (1980), 55 C.C.C. (2d) 452, 114 D.L.R. (3d) 289, [1981] 2 F.C. 99 (F.C.T.D.), section 41(2) of the Penitentiary Service Regulations was amended to so that a member may search "any inmate or inmates, where a member considers such action reasonable to detect the presence of contraband or to maintain the good order of the institution…" Accordingly, the Court held a standing order of the institution directing body searches of all inmates after open visits to be valid. Further, it followed that there was no basis for the submission that section 41(2), as amended, was ultra vires based on the point of lack of reasonable and probable grounds for believing on the part of a member of the penitentiary services at the time skin-frisks were ordered that such skin-searches were necessary to detect the presence of contraband or to maintain the good order of the institution. The Court accepted in this case the expert evidence of the institutional warden that contraband would enter the institution after open visits if no such preventative measures were taken.

Weatherall v. Canada (Attorney General) (1993), 83 C.C.C. (3d) 1, 23 C.R. (4th) 1, [1993] 2 S.C.R. 872 (S.C.C.) — This was an appeal by a male inmate from the Federal Court of Appeal where the appellant challenged the constitutionality of frisk searching and patrolling of cell ranges conducted in male penitentiaries by female guards pursuant to sections 7, 8 and 15 of the Charter. In dismissing the appeal, the Supreme Court stated that imprisonment necessarily entails surveillance, searching and scrutiny. A prison cell is expected to be exposed and to require observation. The frisk search, the count and the wind are all practices necessary in a penitentiary for the security of the institution, the public and indeed the prisoners themselves. A substantially reduced level of privacy is present in this setting and a prisoner thus cannot hold a reasonable expectation of privacy with respect to these practices. This conclusion is unaffected by the fact that the practices at times may be conducted by female guards. There being no reasonable expectation of privacy, section 8 of the Charter is not called into play; nor is section 7 implicated. The Court felt it doubtful that section 15(1) of the Charter was violated despite the fact that female penitentiary inmates are not similarly subject to cross-gender frisk searches and surveillance. Even if one were to look at this different treatment as amounting to a breach of section 15(1), the practices are saved by section 1 of the Charter.

Routine strip search of inmates

48. A staff member of the same sex as the inmate may conduct a routine strip search of an inmate, without individualized suspicion,

  • (a) in the prescribed circumstances, which circumstances must be limited to situations in which the inmate has been in a place where there was a likelihood of access to contraband that is capable of being hidden on or in the body; or
  • (b) when the inmate is entering or leaving a segregation area.

Judicial Consideration —

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Frisk search of inmate

49. (1) Where a staff member suspects on reasonable grounds that an inmate is carrying contraband or carrying evidence relating to a disciplinary or criminal offence, the staff member may conduct a frisk search of the inmate.

Idem

(2) A person providing services of a prescribed class to the Service under a contract has the powers of search of a staff member under subsection (1) if

  • (a) the conducting of such searches is provided for in the contract but does not constitute the person’s principal services under the contract;
  • (b) the searches are reasonably related to the person’s principal services under the contract; and
  • (c) the person has received the prescribed training to conduct such searches.

Strip search of inmate

(3) Where a staff member

  • (a) believes on reasonable grounds that an inmate is carrying contraband or carrying evidence relating to a disciplinary or criminal offence, and that a strip search is necessary to find the contraband or evidence, and
  • (b) satisfies the institutional head that there are reasonable grounds to so believe,

a staff member of the same sex as the inmate may conduct a strip search of the inmate.

Emergency search

(4) Where a staff member

  • (a) satisfies the requirements of paragraph (3)(a), and
  • (b) believes on reasonable grounds that the delay that would be necessary in order to comply with paragraph (3)(b) or with the gender requirement of subsection (3) would result in danger to human life or safety or in loss or destruction of the evidence,

the staff member may conduct the strip search without complying with paragraph (3)(b) or the gender requirement of subsection (3).

Judicial Consideration —

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Shortreed v. Canada (Attorney General) (1997), 131 F.T.R. 113, [1997] F.C.J. No.954 (F.C.T.D.), 1999 CanLII 8764 (F.C.A.) — On the basis of information received from Xerox Canada, a correctional officer acting as supervisor of the Inmate Committee, perceived that someone was abusing subsidized photocopying privileges. The officer later found the inmate applicant, a member of the Inmate Committee, using the photocopier in the Personal Development Programs building. The inmate was copying pages from a legal text on behalf of the Inmate Committee. The officer advised that he considered this legal research to be personal business and therefore unauthorized legal research, as personal photocopying had to be done through the library. The inmate disagreed and the officer then took the two law books to his supervisor for an opinion as to whether the photocopying was for personal use or not. At no time did the inmate object to this action. After a few days the supervisor agreed that the texts were for personal business, and that the inmate was not entitled to photocopy the articles on the Personal Development Programs machine. The officer informed the inmate of this decision and returned the books to him. In applying for judicial review, the inmate submitted that the CSC had no jurisdiction to search for the books pursuant to s49(1) of the CCRA. In dismissing the application, the Federal Court held that there was no evidence that the inmate objected to the officer's actions, and that since the officer took the books to get a second opinion, it was actually in the inmate's interest to give the books to the officer. Furthermore, there was no evidence that CSC officers decided that the law books were "contraband," and seized them on that basis. The evidence was that there was a concern over the abuse of photocopying privileges for unauthorized personal use, and the books were examined to see if they were for personal use or unauthorized use. There was no error of fact or jurisdictional error and the Court saw no unreasonableness in the officer's actions. In any event, the issue was moot, as the books were returned to the inmate within a few days.

Staff member to inform institutional head

50. Where a staff member believes on reasonable grounds that an inmate is carrying contraband in a body cavity, the staff member may not seize or attempt to seize that contraband, but shall inform the institutional head.

Judicial Consideration —

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Use of X-ray, “dry cell”

51. Where the institutional head is satisfied that there are reasonable grounds to believe that an inmate has ingested contraband or is carrying contraband in a body cavity, the institutional head may authorize in writing one or both of the following:

  • (a) the use of an X-ray machine by a qualified X-ray technician to find the contraband, if the consent of the inmate and of a qualified medical practitioner is obtained; and
  • (b) the detention of the inmate in a cell without plumbing fixtures, with notice to the penitentiary’s medical staff, on the expectation that the contraband will be expelled.

Judicial Consideration —

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Body cavity search

52. Where the institutional head is satisfied that there are reasonable grounds to believe that an inmate is carrying contraband in a body cavity and that a body cavity search is necessary in order to find or seize the contraband, the institutional head may authorize in writing a body cavity search to be conducted by a qualified medical practitioner, if the inmate’s consent is obtained.

Judicial Consideration —

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Exceptional power of search

53. (1) Where the institutional head is satisfied that there are reasonable grounds to believe that

  • (a) there exists, because of contraband, a clear and substantial danger to human life or safety or to the security of the penitentiary, and
  • (b) a frisk search or strip search of all the inmates in the penitentiary or any part thereof is necessary in order to seize the contraband and avert the danger,

the institutional head may authorize in writing such a search, subject to subsection (2).

Gender requirement

(2) A strip search authorized under subsection (1) shall be conducted in each case by a staff member of the same sex as the inmate.

Judicial Consideration —

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Urinalysis

54. Subject to section 56 and subsection 57(1), a staff member may demand that an inmate submit to urinalysis

  • (a) where the staff member believes on reasonable grounds that the inmate has committed or is committing the disciplinary offence referred to in paragraph 40(k) and that a urine sample is necessary to provide evidence of the offence, and the staff member obtains the prior authorization of the institutional head;
  • (b) as part of a prescribed random selection urinalysis program, conducted without individualized grounds on a periodic basis and in accordance with any Commissioner's Directives that the regulations may provide for; or
  • (c) where urinalysis is a prescribed requirement for participation in
    • (i) a prescribed program or activity involving contact with the community, or
    • (ii) a prescribed substance abuse treatment program.

Judicial Consideration —

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Dion v. Canada (1986), 30 C.C.C. (3d) 108, [1986] R.J.Q. 2196 (Que.S.C.) — The Court declared that section 41.1 of the Penitentiary Service Regulations did not satisfy the requirements of fundamental justice referred to in section 7 of the Charter and were thus of no force and effect. Section 41.1 authorized a member to require that an inmate provide him with a sample of his urine when he considers it necessary in order to detect the presence of an intoxicant in the inmate's body. Essentially, section 41.1 gave an officer or penitentiary employee the absolute power to require a urine sample, even if the inmate did not present any danger of committing discipline breaches or acts linked to the absorption of intoxicants, and without requiring that the penitentiary employee act only upon reasonable and probable grounds. This section did not contain the essential elements of fundamental justice because it did not ensure an inmate of protection against abuse by one of the members of the penitentiary service. Arbitrariness has always been, and will always be, contrary to fundamental justice.

Jackson v. Joyceville Penitentiary (Disciplinary Tribunal) (1990), 55 C.C.C. (3d) 50, 75 C.R. (3d) 174, [1990] 3 F.C. 55 (F.C.T.D.) — Section 41.1 of the Penitentiary Service Regulations authorized a member to require that an inmate provide him with a sample of his urine when he considers it necessary in order to detect the presence of an intoxicant in the inmate's body. In this case, the Court concluded that section 41.1, in so far as it authorizes a requirement for an inmate to provide a urine specimen where it is believed the inmate has ingested an intoxicant, contravenes sections 7 and 8 of the Charter and is thus of no force and effect. This was so because the Regulation itself contained no standards, criteria, or circumstances relating to its application, for the guidance of staff or inmates, which would ensure that application is not unreasonable within the meaning of section 8; and because the restrictions on rights to liberty and security of the person are not, in the absence of standards or criteria or applicable circumstance (in other words, not tied to reasonable and probable cause), in accord with the principles of fundamental justice. The court stated that its conclusion did not relate directly to the other situations that would have been included in the overall plan of the correctional service for urinalysis testing if that plan were implemented, i.e., random testing, testing of those with a history of involvement with drugs, and testing of those involved in community programmes that provide significant contact opportunities with outsiders. None of those aspects of the planned programme were directly before the Court in this case. The Court, however, did not feel that section 41.1 violated an inmate's section 15 Charter equality rights. In this case section 41.1 of the Regulations did provide for treatment of prison inmates on a basis different from that of most, if not all, other individuals in Canada and thus may be said to derogate from their right to equality before the law. Yet, the Court was not persuaded that this difference or derogation was discriminatory in the sense provided for in section 15(1) of the Charter.

Fieldhouse v. Canada (1995), 40 C.R. (4th) 263, 98 C.C.C. (3d) 207, [1995] B.C.J. No.975 (B.C.C.A.) — This was an appeal by several inmates from a judgment of a provincial superior court refusing to issue a declaration that section 54(b) of the CCRA, and sections 60 and 63 of the Regulations, which authorizes the random urinalysis program, violated sections 7 and 8 of the Charter. The Court of Appeal dismissed the appeal. The Court held that the random urinalysis program did not violate sections 7 or 8 of the Charter while acknowledging that a conviction for either a positive result or a refusal to submit to testing could impact on transfer prospects, consideration for various forms of conditional release, and participation in programs involving contact with the community. The Court held that in his judgment of the application of sections 7 and 8 of the Charter, the trial judge took all the appropriate factors into account, touching upon the relevant evidence from time to time, and reached the right conclusion. The three-part test associated with a section 8 Charter analysis was met. The Act and the Regulations authorize the search. Regarding the question of whether the law is reasonable, the court is called upon to strike a delicate balance between societal interests and individual rights. Given the magnitude and pervasiveness of the problem and the minimal intrusion into the already limited privacy expectation of the inmates, the Court had no difficulty in concluding that the balance falls heavily in favour of the societal interest. It followed that the law was reasonable. The third part of the test requires consideration of the question of whether the manner of carrying out the search is reasonable. The Court agreed with the trial judge's view that the seizures are carried out in a reasonable manner. Although urination on demand is unusual, the two-hour time period given for compliance addresses that. Although urination in the presence of an observer (of the same sex) is also unusual, the need to ensure that the sample is not tampered with seems obvious, and the fact of observation does not, by itself, make the collection process unreasonable. As to section 7 of the Charter, when a law is found not to violate section 8, it follows that the same law will meet the fundamental justice requirement of section 7 to justify a deprivation or diminution of the right to liberty and security of the person. If section 7 requires a kind of stand-alone consideration, the Court is content that its analysis of the section 8 factors as applied to the evidence in this case be applied also to section 7 and that the result would be the same. The one additional factor is a purpose test, which establishes that where deprivation of the right in question does little or nothing to enhance the state's interest, a breach of fundamental justice will be made out. It could not be seriously contended otherwise than that the prospect of advancing the state's interest in this case, given the nature of that interest, constitutes a valid purpose that justifies the infringement upon section 7 rights.

Penner v. Stony Mountain Institution Inmate Disciplinary Court (1995), 101 F.T.R. 148, [1995] F.C.J. No.1218 (F.C.T.D.) — An inmate was observed by a correctional officer to be staggering and weaving down a corridor in the institution. The correctional officer proceeded to obtain prior authorization, pursuant to section 54(a) of the CCRA, in order to demand that the inmate submit to urinalysis. That authorization having been obtained, the demand was made of the inmate almost 24 hours after the observation. The inmate declined to give a sample and was subsequently found guilty in disciplinary court of refusing to provide a urine sample when demanded pursuant to section 54 of the CCRA. The inmate argued that the delay between the time when his suspect conduct was observed and the time a urine sample was demanded seriously prejudiced the inmate through infringement of his capacity to provide a credible and verifiable explanation for his conduct and through erosion of his capacity to prepare a defence against a disciplinary charge. The Federal Court was not persuaded by the inmate's argument and dismissed the application. While a lengthy delay between establishment of a reasonable belief and a demand that an inmate submit to urinalysis might truly be prejudicial to the inmate and a breach of fairness, the Court was not satisfied that a delay of close to 24 hours produced such a result. Further, by failing to take of advantage of the opportunity to make representations, given to him at the time of the demand for a sample, the inmate exposed himself to the risk of a conviction on a disciplinary charge.

McWhinney v. Canada (Commissioner of Corrections) (1996), 1 C.R. (5th) 116, 117 F.T.R. 81, [1996] F.C.J. No.1051 (F.C.T.D.) — On 12 October 1994, M appeared before the National Parole Board with respect to his parole status. At the hearing, the Board granted full parole to M on the condition that he reside at Gunn Centre, a half-way house. The Board also stipulated that parole would be effective when bed space became available at Gunn Centre. Subsequent to this decision and while waiting for a bed to become available at the Gunn Centre, M was asked to provide a urine sample for analysis, pursuant to a program of "random selection" established under s54(b) of the CCRA, but did not comply because he feared his sample would be tampered with and that he would be denied parole. Disciplinary action ensued and M's parole was cancelled. M submitted that s40 of the CCRA regarding discipline only applied to an "inmate", and since he had been granted full parole by order of the Board on 12 October 1994, he was not an "inmate" within the meaning of subsection 2(1) of the CCRA. The court disagreed and held M to be an "inmate" when the urine sample was demanded because the conditions of his parole had not yet been met. His full parole was granted but effective, in part, only when bed space was available at Gunn Centre. The court found that the clear intention of this provision was that M was to remain an "inmate" until a bed was not only available to him but that he actually occupied it.

Beaudoin v. William Head Institution (1997), 139 F.T.R. 133, [1997] F.C.J. No.1663 (F.C.T.D.) — This was an application for judicial review of a decision by an independent chairperson to convict four inmates of the disciplinary offence of failing or refusing to provide a urine sample when demanded pursuant to section 54(a) of the CCRA. The charges arose when a correctional officer smelled what he believed to be an odour of hashish in the living quarters of a unit occupied by six inmates. Without further investigation, the officer then demanded a urine sample from each of the six residents. All four applicants refused to provide a urine sample. One of the applicants insisted on being examined by a nurse who expressed the opinion that the applicant did not look like he had ingested an intoxicant. Two of the applicants requested the opportunity to make representations to the warden in accordance with section 57(1) of the Act. The warden met with these two and offered the opinion that neither of them showed signs of having ingested an intoxicant. During the proceedings before the independent chairperson, the officer who had demanded the urine samples acknowledged that none of the four showed signs of having ingested an intoxicant. Further, he acknowledged that he did not have "reasonable grounds" to believe that any one of the applicants had ingested an intoxicant. The Federal Court allowed the application and set aside the disciplinary conviction. The Federal Court expressed the view that on the facts of this matter, at least in respect of the applicant B, there was simply no evidence before the chairperson on which to conclude that the officer who demanded the a urine sample from B had "reasonable grounds" to believe, as required by section 54(a) , that B had ingested an intoxicant. The only evidence before the chairperson, that being of a strong odour of hashish in the living unit in question, was that someone had ingested an intoxicant. Six inmates lived in the unit of which B was one. There was no evidence to indicate that other inmates in the institution had not been or could not have been present in the living unit in the minutes immediately preceding the time when the officer detected the odour of hashish. Several persons may have been responsible. Further, one of the applicants suggested to the officer that the odour in question was not, in fact, hashish but a cooking odour resulting from the meal that the residents had cooked themselves earlier in the evening. In the end, the Federal Court concluded that the chairperson committed a reviewable error in convicting B in that he had no evidence before him on which to conclude that the officer who demanded that B submit to urinalysis had reasonable grounds to believe that he had ingested an intoxicant.

Durie v. Canada (Attorney General) (2001), 201 F.T.R. 8(2001), 201 F.T.R. 8, 2001 FCT 22, [2001] F.C.J. No.169 (F.C.T.D.) — An inmate applied for judicial review of a disciplinary court decision to convict him under section 40(l) of the CCRA for failing or refusing to provide a urine sample when demanded pursuant to section 54 or 55. While the inmate submitted to the disciplinary court that a medical condition provided a reasonable justifiable excuse, the independent chairperson stated that some medical evidence - none of which was provided by the inmate - was required. The Federal Court allowed the application, quashed the chairperson's decision and substituted it with a finding of not guilty. The Federal Court held that the onus of proof is on the Respondent (prosecutor) in inmate disciplinary hearings. The onus shifts to the Applicant (accused) when the Respondent has shown that the offence has taken place and the applicant is offering lawful excuse. The chairperson in this case erred in requiring medical evidence and/or documentation. An inmate is entitled to offer evidence on lawful excuse and the chairperson should weigh the evidence and determine whether it constitutes lawful excuse. An inmate is not required to produce medical evidence or documentary evidence, but in many cases it would be in the inmate's interest to do so. There is no standard type of evidence that is required by law.

Urinalysis

55. Subject to section 56 and subsection 57(2), a staff member, or any other person so authorized by the Service, may demand that an offender submit to urinalysis

  • (a) at once, where the staff member or other authorized person has reasonable grounds to suspect that the offender has breached any condition of a temporary absence, work release, parole or statutory release that requires abstention from alcohol or drugs, in order to monitor the offender’s compliance with that condition; or
  • (b) at regular intervals, in order to monitor the offender’s compliance with any condition of a temporary absence, work release, parole or statutory release that requires abstention from alcohol or drugs.

1992, c. 20, s. 55; 1995, c. 42, s. 15.

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Fehr v. Canada (National Parole Board) (1995), 93 F.T.R. 161, [1995] F.C.J. No.552 (F.C.T.D.) — An inmate was required to submit to urinalysis as a condition of day parole. The Federal Court held that the former section 55 , which is now very similar to the current paragraph (b) , and section 56 of the CCRA do not require that reasonable and probable grounds be provided to the applicant. The legislation simply requires that the offender be told the basis for the demand, and the consequences of noncompliance.

Information requirements

56. Where a demand is made of an offender to submit to urinalysis pursuant to section 54 or 55, the person making the demand shall forthwith inform the offender of the basis of the demand and the consequences of non-compliance.

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Picard v. Drummond Institution (1995), 107 F.T.R. 1, [1995] F.C.J. No.1628 (F.C.T.D.) — An inmate refused to a demand to provide a urine sample and was convicted of a disciplinary offence pursuant to section 54(a) of the CCRA. While prison officials made the demand on the basis of a claim that the inmate had taken an intoxicant, they neither told the inmate anything about their grounds for believing that he was taking intoxicants, nor did they provide in the notice of disciplinary charges any summary of the evidence in support of their charge other than a statement that read as follows: "Reason Reason to believe." It was only at the hearing, after the inmate had pleaded not guilty to the charge, did officials indicate that the reasonable grounds to believe the inmate had committed the offence were based on information obtained from inmates or staff members but without giving any other particulars. The Federal Court allowed the inmate's application for judicial review challenging the conviction. In Demaria v. Regional Classification Board, [1987] 1 F.C. 74, 69 N.R. 135 (F.C.A.), the Federal Court of Appeal confirmed that compliance with the principles of fundamental justice or the duty of fairness requires the provision of information on the reasonable grounds to believe that an offence has been committed. In light of the case law, it was the Federal Court's view in this case that, in the absence of evidence from the authorities demonstrating that they withheld only such information as was strictly necessary, the failure to give the inmate any information at all concerning the reasonable grounds of the officers to believe that an offence was committed violated the inmate's rights under not only sections 56 and 57 of the CCRA and section 25 of the Regulations, but also section 7 of the Charter. Section 25of the Regulations specifically requires that the notice of a charge of a disciplinary offence contain a summary of the evidence to be presented in support of the charge at the hearing. The Federal Court asserted that the simple statement provided by officials was not sufficient to meet the requirement and enable the inmate to prepare a full answer and defence. The Federal Court agreed with the statement made in Jackson v. Joyceville Penitentiary Disciplinary Tribunal, [1990] 3 F.C. 55, 32 F.T.R. 96 (T.D.), that the collection of a urine sample in a penitentiary is a search within the meaning of section 8 of the Charter. The freedom of inmates from state examination of bodily wastes without consent ought not to be taken away except in accord with the principles of fundamental justice. In this case however, since no sample had been provided by the inmate no search occurred, and as such his section 8 Charter rights had not been violated.

Grenier v. Canada (Correctional Service) (1997), 141 F.T.R. 15 (F.C.T.D.) — Five inmates were found guilty of failing to provide a urine sample pursuant to a request that was made to them under section 54(a) of the CCRA. The inmates applied for judicial review and the Federal Court allowed the applications, setting aside the impugned decisions. The issue was whether the correctional officer who made the demand to the inmates gave sufficient notice of "the basis of the demand" within the meaning of section 56 of the Act. In this case, the notice was given in writing and the text read in full as follows: "96-02-03 about 20:45 the subject consumed a substance in the Y common room. (toilet)" In the Court's opinion, this notice was clearly insufficient. It more or less clearly described the alleged offence with a good number of particulars as to the time, date and place. But it does not at all give the basis of the demand because it provided no details concerning the grounds, reasonable or otherwise, that the officer had. The Court stipulated that it need not rule on the issue of whether the notice required by section 56 must always be in writing, although it noted that this was the clear sense of paragraph 15 of the CD 572 of 1994-05-27. However, the Court did believe that when the authorities decide to give a written notice it must necessarily comply with all the requirements of the Act.

Savard v. Canada (Attorney General) (1997), 128 F.T.R. 271, [1997] F.C.J. No.105 (F.C.T.D.) — An inmate was found guilty by a disciplinary court pursuant to section 40(l) of the CCRA for refusing to provide a urine sample as required by section 54(a) of the Act. The Federal Court allowed the inmate's application for judicial review on the basis that there was a flagrant breach of section 25 of the Regulations, as the notice of charge contained absolutely no "summary of the evidence to be presented in support of the charge at the hearing." In the Court's view, this breach is fatal. As the notice of charge in this case contained merely a description of the offence and no summary of the evidence to be presented in support of the charge at the hearing before the disciplinary tribunal is given, the Court was forced to find that the authorities did not carry out the will of Parliament, which intended to give an inmate charged with a disciplinary offence a specific and particular means of preparing a full and complete defence, which is a recognized rule of natural justice. An order was therefore made quashing the decision of the independent chairperson and referring the matter back to that tribunal to be decided by it on the basis that the inmate could not be found guilty of the offence charged because the related notice of charge was not issued in full compliance with section 25 of the Regulations.

Stocking v. Joyceville Institution Disciplinary Court (1995), 98 F.T.R. 157, [1995] F.C.J. No.936 (F.C.T.D.) — An inmate who was asked to provide a random urine sample pursuant to section 54(b) of the CCRA requested that he be able to return to his cell in order to review his copy of the legislation and advised correctional officers that he would not provide a urine sample until he was allowed to do so. The inmate was permitted to do so. He alleged that there was an understanding between the correctional officers and himself that they would return to his cell later in the day to obtain a urine sample and if he refused to provide a sample at that time, he would be charged with refusing to provide a urinalysis. The correctional officers did not return later in the day and the inmate was charged with refusing to provide a sample. The inmate was convicted by the disciplinary court and sought judicial review. The Federal Court dismissed the application. The Court did not agree with the inmate's contention that the institution had a duty to provide the inmate with proof of the actual randomness of the selection process let alone that there be proof beyond a reasonable doubt that the inmate was randomly selected. As well, in this case the inmate had not provided to the Federal Court transcripts from the disciplinary hearing or with the original tapes of the hearing. While there was an allegation made by the inmate in his affidavit that two correctional officers gave contradictory evidence with respect to several facts, the CSC argued that the allegation was hearsay and thus inadmissible. The Court held that in the absence of any record to verify whether in fact these inconsistencies existed, it must disregard the statements pertaining to the alleged contradictions. Further, without a transcript (electronic or written) of the proceedings before the disciplinary court, the Court had no indication as to what evidence was relied upon by the independent chairperson. In the absence of sufficient particulars with respect to the hearing before the disciplinary court, the Court must conclude that the chairperson's decision was reasonable.

Right to make representations

57. (1) An inmate who is required to submit to urinalysis pursuant to paragraph 54(a) shall be given an opportunity to make representations to the institutional head before submitting the urine sample.

Idem

(2) An offender who is required to submit to urinalysis at regular intervals pursuant to section 55 shall be given reasonable opportunities to make representations to the prescribed official in relation to the length of the intervals.

Corresponding Regulations: Sections 43-59 Search and Seizure and Section 60-72 Urinalysis Testing

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Forrest v. Canada (Attorney General) [2002] F.C.J. No.713, 2002 FCT 539 (F.C.T.D.) — An inmate was provided with a written demand by a correctional officer to provide a urine sample as part of the prescribed random selection urinalysis program under section 54(b) of the CCRA. Disagreeing with the length of the interval since his last urine sample, the inmate demanded to speak to a supervisor of the correctional officer. The correctional officer informed him that he did not have the right to refuse to provide a urine sample and that he did not have the right to make any representations. The inmate stated that if he were not allowed to speak to someone, then he would refuse to provide the urine sample. The inmate was not permitted to make representations and refused to provide a sample, for which he was charged with a disciplinary offence. The correctional officer's decision in this regard was part of a challenge to a disciplinary conviction that arose out of the inmate's refusal to provide the urine sample. In dismissing the application, the Federal Court wrote that Parliament has enacted in section 54 of the Act a variety of circumstances when an inmate is legally required to provide a urine sample upon demand. One situation, under section 54(b) of the Act, involves demands upon a random basis. A computer generates a random selection of inmates at each institution, and these inmates are required to submit a urine sample. The objective is to detect, prevent and deter drug use by inmates at correctional institutions. The inmate has no right to refuse when selected on a random basis. Refusal to provide a urine sample when demanded constitutes a specific disciplinary offence under subsection 40(l) of the Act. This is distinct from instances under section 54(a) of the Act where inmates are requested to provide a urine sample because the institution has reasonable grounds to suspect that the inmate has used a drug. In such situations, the inmate has the right to make representations before being required to submit the urine sample. That right to make representations is contained in section 57 of the Act. On the facts of this case, the Court found that where a random urinalysis sample has been demanded under subsection 54(b) of the Act, no right to address a superior institution officer exists. Accordingly, the Court was satisfied that the disciplinary court came to a reasonable finding that the inmate did refuse to provide the urine sample contrary to subsection 54(b) of the Act.

Monitoring device

57.1 (1) The Service may demand that an offender wear a monitoring device in order to monitor their compliance with a condition of a temporary absence, work release, parole, statutory release or long-term supervision that restricts their access to a person or a geographical area or requires them to be in a geographical area.

Representations

(2) An offender who is required to wear a monitoring device is to be given reasonable opportunities to make representations to the prescribed official in relation to the duration of the requirement.

2012, c. 1, s. 64.

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Searches of Cells

Searches of cells

58. A staff member may, in the prescribed manner, conduct searches of cells and their contents in the prescribed circumstances, which circumstances must be limited to what is reasonably required for security purposes.

Corresponding Regulations: Sections 43-59 Search and Seizure and Section 60-72 Urinalysis Testing

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Searches of Visitors

Routine non-intrusive or frisk searches

59. A staff member may conduct routine non-intrusive searches or routine frisk searches of visitors, without individualized suspicion, in the prescribed circumstances, which circumstances must be limited to what is reasonably required for security purposes.

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Frisk search

60. (1) A staff member may conduct a frisk search of a visitor where the staff member suspects on reasonable grounds that the visitor is carrying contraband or carrying other evidence relating to an offence under section 45.

Strip search

(2) Where a staff member

  • (a) suspects on reasonable grounds that a visitor is carrying contraband or carrying other evidence relating to an offence under section 45 and believes that a strip search is necessary to find the contraband or evidence, and
  • (b) satisfies the institutional head that there are reasonable grounds
    • (i) to suspect that the visitor is carrying contraband or carrying other evidence relating to an offence under section 45, and
    • (ii) to believe that a strip search is necessary to find the contraband or evidence,

a staff member of the same sex as the visitor may, after giving the visitor the option of voluntarily leaving the penitentiary forthwith, conduct a strip search of the visitor.

Idem

(3) Where a staff member believes on reasonable grounds that a visitor is carrying contraband or carrying other evidence relating to an offence under section 45 and that a strip search is necessary to find the contraband or evidence,

  • (a) the staff member may detain the visitor in order to
    • (i) obtain the authorization of the institutional head to conduct a strip search, or
    • (ii) obtain the services of the police; and
  • (b) where the staff member satisfies the institutional head that there are reasonable grounds to believe
    • (i) that the visitor is carrying contraband or carrying other evidence relating to an offence under section 45, and
    • (ii) that a strip search is necessary to find the contraband or evidence,
  • the institutional head may authorize a staff member of the same sex as the visitor to conduct a strip search of the visitor.

Rights of detained visitor

(4) A visitor who is detained pursuant to subsection (3) shall

  • (a) be informed promptly of the reasons for the detention; and
  • (b) before being searched, be given a reasonable opportunity to retain and instruct counsel without delay and be informed of that right.

Corresponding Regulations: Sections 43-59 Search and Seizure and Section 60-72 Urinalysis Testing

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Bryntwick v. Yeomans (1982), 1 C.C.C. (3d) 131, 31 C.R. (3d) 177, [1983] 2 F.C. 146 (F.C.T.D.) — Under subsection 41(2)(a) of the Penitentiary Service Regulations, any member may search "any visitor, where there is reason to believe that the visitor has contraband in his possession…" The Federal Court held that this regulation does not in itself authorize a spot-check search, nor does it permit unrestricted body searches. There has to be a reason for requiring the body search, and it was the Court's view that the reason in itself must be, if not "reasonable" at least credible and justifiable, with reference to the specific visitor to be searched. For the Court, such a reason did not seem to exist in the present case since the only reason given was that the visitor appeared to be nervous. It appears very tenuous to justify a body search, which is a humiliating and degrading procedure, on such a flimsy excuse. The authorities are under a duty of fairness. As such, whether inmate visitation is considered as a right or a privilege, where the visitor is unfairly asked to submit to a strip search based on reasons which are very unsubstantial and which are not even communicated to the visitor, and the result is in contravention of the Regulations, it is open to the courts to intervene. In such circumstances, certiorari is the proper remedy to quash an order suspending visiting rights.

Gagnon v. Deslauriers (1997), 141 F.T.R. 163, [1997] F.C.J. No.1613 (F.C.T.D.) —ecision of the Warden of Leclerc Institution to introduce IONSCAN, a device using ion mobility spectrometry to detect drug particles on visitors to inmates at the institution. The applicants, two such visitors on whom the IONSCAN was used, asked in particular that this device cease be used on all visitors to the institution on the basis that it constituted a wrongful search contrary to section 8 of the Charter. The Federal Court dismissed the application. The Court held that the attempt here to stop the use of the equipment on all visitors to the Leclerc Institution was based on the contradicted evidence of only two visitors, against a background of testimony by expert witnesses whose opinions differed significantly on whether the IONSCAN was really reliable, and this attempt was made on the pretext of a breach of the rights of those two individuals under section 8 of the Charter. In the circumstances, the Court felt that the applicants had not shifted the burden of establishing the necessary factual basis to support their request, and this sufficed to dismiss the application for judicial review. However, there was another significant and sufficient ground that led the court to the same conclusion. For an "unreasonable search" within the meaning of section 8 of the Charter, there must be a reasonable invasion of privacy of the person subject to that search. In view of the particular circumstances of this case, the undoubted existence of serious drug problems from the bringing of drugs into federal penal institutions and the significant interest which the CSC has in preventing drug use and drug-related violence in those institutions, and in particular and above all at the Leclerc Institution, the Court felt that someone in that institution to visit an inmate does not have a higher expectation of privacy in any search to which he or she may be subjected than that which inmates in the institution may claim to have. Accordingly, as the applicants here have no reasonable expectation of privacy there can be no breach of section 8 of the Charter.

R v. Laurier (1997), 86 B.C.A.C. 282, 142 W.A.C. 282, 43 C.R.R. (2d) 117, [1997] B.C.J. No.276 (B.C.C.A.) — L went to a prison to visit her inmate brother M. Corrections staff at the prison had previously received information that L would be visiting her brother on a specific day, and that she would be bringing a quantity of heroin to him. A preventive security officer with the CSC obtained an authorization from the acting warden to conduct a strip search of L, following the procedures that he believed would be required under section 60 of the CCRA. When L arrived at the institution on the day in question, corrections staff, at the direction of the IPSO, detained her and asked her to submit to a strip search, which she refused to do. The CSC then called the police who sent two members. After a briefing from the correctional officers, a police officer ordered a frisk search that was conducted by a female correctional officer. The frisk search resulted in the discovery of a balloon that contained heroin. At a resulting criminal trial, the trial judge ruled the search unreasonable and excluded the evidence, resulting in acquittal. On appeal, the Court of Appeal held the search unreasonable but held that the trial judge erred in excluding the evidence under section 24(2) of the Charter. In making its decision, the Court reasoned that reasonable grounds supporting the police officer's belief that L was carrying heroin were required to support a frisk search under section 60(1) of the CCRA. But if the IPSO had reasonable grounds for arresting L when she entered the prison, and if the search ordered by the police officer could properly be characterized as incidental to that arrest, then it would not matter whether that police officer had reasonable grounds for believing that L was carrying heroin.

Searches of Vehicles

Routine searches

61. (1) A staff member may, in the prescribed manner, conduct routine searches of vehicles at a penitentiary, without individualized suspicion, in the prescribed circumstances, which circumstances must be limited to what is reasonably required for security purposes.

Searches for contraband

(2) A staff member who believes on reasonable grounds that contraband is located in a vehicle at a penitentiary in circumstances constituting an offence under section 45 may, with prior authorization from the institutional head, search the vehicle.

Emergency searches

(3) Where a staff member believes on reasonable grounds that the delay that would be necessary in order to comply with the prior authorization requirement of subsection (2) would result in danger to human life or safety or the loss or destruction of the contraband, the staff member may search the vehicle without that prior authorization.

Exceptional power to search

(4) An institutional head may, in writing, authorize a staff member to search the vehicles at a penitentiary if the institutional head has reasonable grounds to believe that

  • (a) there is a clear and substantial danger to the security of the penitentiary or the life or safety of persons because evidence exists that there is contraband at the penitentiary or that a criminal offence is being planned or has been committed at the penitentiary; and
  • (b) it is necessary to search the vehicles in order to locate and seize the contraband or other evidence and to avert the danger.

1992, c. 20, s. 61; 2012, c. 1, s. 65.

Previous Version

Corresponding Regulations: Sections 43-59 Search and Seizure and Section 60-72 Urinalysis Testing

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Warnings to be Posted

Warnings about searches

62. At each penitentiary, a conspicuous warning shall be posted at the entrance to the lands and at the visitor control point, stating that all visitors and vehicles at the penitentiary are subject to being searched in accordance with this Part and the regulations.

Corresponding Regulations: Sections 43-59 Search and Seizure and Section 60-72 Urinalysis Testing

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Searches of Staff Members

Routine non-intrusive or frisk searches

63. A staff member may conduct routine non-intrusive searches or routine frisk searches of other staff members, without individualized suspicion, in the prescribed circumstances, which circumstances must be limited to what is reasonably required for security purposes.

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Frisk search or strip search

64. (1) Where a staff member believes on reasonable grounds that another staff member is carrying contraband or carrying evidence relating to a criminal offence and that a frisk search or strip search is necessary to find the contraband or evidence,

  • (a) the staff member may detain the other staff member in order to
    • (i) obtain the authorization of the institutional head to conduct a frisk search or strip search, or
    • (ii) obtain the services of the police; and
  • (b) where the staff member satisfies the institutional head that there are reasonable grounds to believe that the other staff member is carrying contraband or carrying evidence relating to a criminal offence and that a frisk search or strip search is necessary to find the contraband or evidence, the institutional head may
    • (i) authorize a staff member to conduct a frisk search of the other staff member, or
    • (ii) authorize a staff member of the same sex as the other staff member to conduct a strip search of that other staff member.

Rights of detained staff member

(2) A staff member who is detained pursuant to subsection (1) shall

  • (a) be informed promptly of the reasons for the detention; and
  • (b) before being searched, be given a reasonable opportunity to retain and instruct counsel without delay and be informed of that right.

Corresponding Regulations : Sections 43-59 Search and Seizure and Section 60-72 Urinalysis Testing

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Power to Seize

Power to seize

65. (1) Subject to section 50, a staff member may seize contraband, or evidence relating to a disciplinary or criminal offence, found in the course of a search conducted pursuant to sections 47 to64, except a body cavity search or a search described in paragraph 51(a) .

Idem

(2) A medical practitioner conducting a body cavity search may seize contraband or evidence relating to a disciplinary or criminal offence found in the course of that search.

Idem

(3) A person conducting a search pursuant to subsection 47(2) or 49(2) may seize contraband found in the course of that search.

Corresponding Regulations: Sections 43-59 Search and Seizure and Section 60-72 Urinalysis Testing

Searches in Community-based Residential Facilities

Frisk search, room search

66. (1) An employee of a community-based residential facility who is so authorized by the Service may

  • (a) conduct a frisk search of an offender in that facility, and
  • (b) search an offender’s room and its contents,

where the employee suspects on reasonable grounds that the offender is violating or has violated a condition of the offender’s parole, statutory release or temporary absence and that such a search is necessary to confirm the suspected violation.

Power to seize

(2) An employee who conducts a search pursuant to subsection (1) may seize any evidence of a violation of the offender’s conditions of release found in the course of the search.

Definition of “community-based residential facility”

(3) In this section, “community-based residential facility” means a place that provides accommodation to offenders who are on parole, statutory release or temporary absence.

1992, c. 20, s. 66; 1995, c. 42, s. 71(F).

Corresponding Regulations: Sections 43-59 Search and Seizure and Section 60-72 Urinalysis Testing

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Reports Relating to Searches and Seizures

Reports to be submitted

67. Reports in respect of searches conducted pursuant to sections 47 to 66, and in respect of the seizure of items in the course of those searches, must be submitted where required by regulations made under paragraph 96(o) and in accordance with those regulations.

1992, c. 20, s. 67; 1995, c. 42, s. 16.

Corresponding Regulations: Sections 43-59 Search and Seizure and Section 60-72 Urinalysis Testing

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General — Living Conditions

Instruments of restraint

68. No person shall apply an instrument of restraint to an offender as punishment.

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Cruel treatment, etc.

69. No person shall administer, instigate, consent to or acquiesce in any cruel, inhumane or degrading treatment or punishment of an offender.

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Maltby v. Saskatchewan (Attorney General) (1982), 2 C.C.C. (3d) 153, 143 D.L.R. (3d) 649, 20 Sask.R. 366 (Sask.Q.B.) [appeal quashed as moot 13 C.C.C. (3d) 308, 10 D.L.R. (4th) 745, 34 Sask.R. 177 (Sask.C.A.)] — The inmate applicants were being held in a provincial correctional centre on remand pending their trials. They brought an application alleging that they were subjected to cruel and unusual treatment by reason of the use of handcuffs and leg shackles while they were being transported. In dismissing the application, the court held that the fact that, on occasion, inmates taken from the institution are handcuffed and required to wear leg shackles did not involve a breach of s12 of the Charter. If there were no valid reasons for using handcuffs and shackles in a particular case and these were in fact used, then that would or could constitute cruel or unusual treatment, but it was not shown that the practice of the provincial officials in this case was without reason. The evidence indicated that the use of physical restraints was viewed as an extraordinary security measure, employed sparingly, and always with care, discretion and judgment. The views of prison officials and administrators must be accorded wide deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. Such considerations are peculiarly within the province and professional expertise of correctional officials, and in the absence of substantial evidence to indicate that the officials have exaggerated their response to the conditions the courts should ordinarily defer to their expert judgment in such matters.

MacPherson v. R (1996), 106 C.C.C. (3d) 271, 48 C.R. (4th) 122, 177 N.B.R. (2d) 1, [1996] N.B.J. No.182 (N.B.Q.B.T.D.) — A prisoner in a provincial jail was granted a habeas corpus application where a court found that he was the victim of the use of unreasonable and excessive force and illegal actions by jail guards. Videotape evidence revealed that while occupying a bare cell, the prisoner repeatedly kicked his cell door in an attempt to get the attention of the guard to allow him to call a lawyer. Several guards then strapped the prisoner for two to three hours face down onto a stretcher and placed a hockey helmet and wire mask over his head. The court found that the prisoner was strapped to the stretcher as punishment for creating a disturbance, rather than for reasons of his own protection or protection of others. It was held that he was a victim of cruel and unusual treatment and arbitrary detention in violation of his rights under s12 and s9 of the Charter. The court then asserted that if M were a federal prisoner subject to the CCRA, the way he was mistreated would also invite consideration of s68 and s69 of that Act.

Living conditions, etc.

70. The Service shall take all reasonable steps to ensure that penitentiaries, the penitentiary environment, the living and working conditions of inmates and the working conditions of staff members are safe, healthful and free of practices that undermine a person’s sense of personal dignity.

1992, c. 20, s. 70; 1995, c. 42, s. 17(F).

Judicial Consideration —

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R v. James (1980), 5 W.C.B. 270 (Ont.H.C.J.) — A civil negligence action was brought by an inmate of a jail, originally charged with rape, when he was badly assaulted by other inmates. The plaintiff alleged reasonable care was not taken as to what location in the jail he would be housed in and, once located there, claimed he was inadequately supervised. In dismissing the action, the court held that the degree of care owed to the plaintiff was to take reasonable care for the plaintiff's safety and to treat him both reasonably and with ordinary humanity. Although perhaps an inmate should be informed upon entering an institution of the options available to him, the decision as to where he would be finally located was an administrative one and not that of the inmate.

Piche v. Canada (Solicitor General) (1984), 17 C.C.C. (3d) 1, [1984] F.C.J. No.1008 (F.C.T.D.) [affirmed (1989), 47 C.C.C. (3d) 495 (F.C.A.)] — This was an action for declaration and injunctive relief in regards to alleged overcrowding and the initiation of a program of double-bunking in certain cells. Evidence indicated that the CSC was forced to resort to double-bunking in some cells as a result of an increase in the number of inmates. Testimony was heard at trial from a doctor relating to the damage to the inmates' mental health resulting from double-bunking. In dismissing the action, the court was of the view that the decision to institute double-bunking was a policy decision made to accommodate the overall population in excess of the available facilities. It was a necessary decision fairly arrived at and as such was not open to question. The Charter did not empower courts to substitute their views for those of the prison authorities to properly manage such institutions. The decision did not violate either Section 7 or 12 of the Charter. Section 7 only provides for security against arbitrary arrest and detention. In this case the inmates were already confined under the terms of their sentences, thus, there was no violation of section 7. Nor was there a breach of section 12 of the Charter. The test to be applied here was whether the treatment or punishment was so excessive as to outrage the standards of decency. Although double-bunking was not an ideal situation, the court held that it did not constitute cruel and unusual treatment or punishment contrary to section 12.

Kingston Penitentiary (Range Representative on Administrative Segregation) v. Regional Coroner (Eastern Ontario) (1989), 38 Admin.L.R. 141 (Ont.Div.Ct.) — Upon judicial review, the court overturned a coroner's decision that he had no power, at an inquest into the suicide of a mentally ill prisoner, to grant standing to the officially elected representative of the remaining prisoners confined under identical and unique conditions in the same unit. The prisoners asserted that the unique conditions in that particularly restricted prison unit, including the allegedly inadequate supervision and treatments, may have caused the death of the deceased and that the prisoners had a direct interest in the jury's recommendations about the deceased's condition which was uniquely identical to their own. The court held that the coroner erred in law in the interpretation of his jurisdiction. There was a unique identity of legal interest between the deceased and the prisoners who had an extraordinary interest in any recommendations that could be made with respect to the conditions that totally dominated every aspect of their existence. Any recommendations would affect them most directly and specifically.

Williams v. Canada (Commissioner of Corrections) [1993] F.C.J. No.646 (F.C.T.D.) — An application for an interlocutory injunction enjoining the CSC from adding double bunks at the Joyceville Institution was dismissed. While a serious question existed, the court held that there existed no irreparable harm and that the balance of convenience favoured the CSC. With respect to the question of irreparable harm, the plaintiff inmate, in his affidavit described the dangers and fears involved in double bunking and expressed the view, that violent protests or extreme violence could result from this practice. However, the affidavit evidence with respect to the prospect of violence was conflicting in the court's view and, in any event, the positions advanced by the plaintiff were speculative at best. Accordingly, the court was not satisfied that there would be irreparable harm to the plaintiffs as a result of the increase in double bunking in the institution. Furthermore, the balance of convenience in this matter was overwhelmingly in favour of the CSC. The evidence indicated quite clearly that the Warden of the institution received extremely short notice that an additional number of inmates would be arriving within a very short period of time. In the circumstances the Warden appeared to have made a reasonable administrative decision. It further appeared that the correctional authorities were making efforts in an attempt to remedy the situation by determining whether any medium security inmates can be transferred to minimum-security institutions and taking the necessary steps to effect such transfers.

Turner v. Burnaby Correctional Centre for Women (1994), 24 W.C.B. (2d) 250, [1994] B.C.J. No.1430 (B.C.S.C.), 1994 CanLII 1218 (BC S.C.) — The court did not accept an inmate's argument that the failure to accommodate her baby living with her amounted to a violation of the section 12 Charter prohibition against cruel and unusual treatment. It was held that the separation of mother and child in this case was not caused by official insensitivity or systemic unfairness. Rather, it was directly the product of the inmate's own conduct. The facts that the petitioner was an escape risk and could not have the baby with her in secure custody fall far short of making her placement in secure custody without the baby cruel and unusual treatment or punishment within the test.

Contacts and visits

71. (1) In order to promote relationships between inmates and the community, an inmate is entitled to have reasonable contact, including visits and correspondence, with family, friends and other persons from outside the penitentiary, subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons.

Visitors’ permitted items

(2) At each penitentiary, a conspicuous notice shall be posted at the visitor control point, listing the items that a visitor may have in possession beyond the visitor control point.

Where visitor has non-permitted item

(3) Where a visitor has in possession, beyond the visitor control point, an item not listed on the notice mentioned in subsection (2) without having previously obtained the permission of a staff member, a staff member may terminate or restrict the visit.

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Veysey v. Canada (Commissioner of Correctional Service) (1989), 39 Admin.L.R. 161, [1990] 1 F.C. 321, [1989] F.C.J. No.1013 [appeal dismissed (1990), 43 Admin.L.R. 316 (F.C.A.)] — This was an application for judicial review of the CSC's decision to refuse an inmate's participation with his homosexual partner in the Private Family Visiting Program at his institution. The inmate alleged that he applied to participate in the program with his homosexual partner because he wished to maintain their relationship throughout his incarceration, and because he believed that his successful reintegration into society will depend to a very great extent on the continuing support of persons in the community: the applicant's relationship with his partner was his closest and most supportive relationship in the community. In allowing the application, the court was of the view that while sexual orientation is not a prohibited ground listed under section 15 of the Charter, it is an analogous ground recognized by provincial and territorial human rights acts, as well as the House of Commons Parliamentary Committee on Equality Rights. The court held that the inmate's section 15 Charter rights had been violated, in that the CSC's actions amounted to discrimination on the basis of sexual orientation, actions which could not be saved by section 1.

Olson v. Canada (1996), 107 F.T.R. 81, [1996] 2 F.C. 168, [1996] F.C.J. No.158 (F.C.T.D.) — This inmate was advised by the Assistant Warden that his access to the media was being restricted so as to reduce his notoriety, in order that he could eventually be transferred to a reduced security facility. The inmate was prevented by the authorities from corresponding with a friend who was a media personality and from sending him material from the two books he had written. The court held that the CSC's actions violated the inmate's rights to freedom of expression and association under paragraphs 2(b) and 2(d) of the Charter, but that these actions were saved under section 1. The court asserted that the measures taken to limit the inmate's rights and freedoms were justified to serve pressing and substantial concerns. Restricting the inmate's access to the media would reduce his personal security risk within the penitentiary and would also form part of his rehabilitation process. The proposed measures were rationally connected to the objective, as the only restriction imposed upon the inmate was in regards to his contact with members of the media. He was not prohibited from communicating with all other members of society. Thus, the measures chosen impaired the inmate's rights and freedoms as little as possible. The actions taken by the CSC met the proportionality test prima facie, since the measures taken did reduce the inmate's media coverage. The restrictions imposed on the inmate's Charter rights were reasonable limits prescribed by law, making them permissible under section 1.

Hunter v. Canada (Commissioner of Corrections) (1997), 9 C.R. (5th) 120, 134 F.T.R. 81, [1997] 3 F.C. 936, [1997] F.C.J. No.959 (F.C.T.D.) [affirmed 163 D.L.R. (4th) 383 (F.C.A.)] — This was an application for judicial review of CD 085 that implemented a new inmate telephone system that had as its objective the encouragement inmates to maintain and develop family and community relations, and to limit the use of telephone communications by inmates in the commission of prohibited activities. Authorized call lists technologically prevented inmates from calling any number that had not previously been authorized by the CSC. The proposed system was to have included a voice-over message, advising recipients of an inmate call that the call was from a correctional institution and may be monitored or recorded. The telephone system was held to be in violation of the inmate's section 2(b) Charter rights, but was saved under section 1 of the Charter as a reasonable limit. The voice-over message, however, was not found to be a reasonable limit and was prohibited. In reaching its conclusion, the court reasoned that in order for it to embark on a full consideration of whether the limits at issue were demonstrably justified, they must be "prescribed by law". Whether a CD is a limit "prescribed by law" is an evolving issue. CD 085 is more than an internal guideline. It is a rule made pursuant to CCRA, section 97 and designated as a CD pursuant to section 98. Subsection 71(1) provides for reasonable contact between inmates and family, friends and other persons outside the penitentiary "subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons". Read in conjunction with sections 97 and 98 of the Act, subsection 71(1) is the statutory authority for the Commissioner to make rules and directives with respect to convicts contacting members of the public at large. In addition, sections 94 and 95 of the CCR Regulations necessarily imply the authorization of telephone communications for inmates. There is no plenary discretion evident, but a grant of authority that is to be exercised with reasonable limits under the objectives of security and the safety of persons. Thus, the specific provisions of CD 085 authorizing the call lists and the voice-over were squarely within the ambit of the discretion given by subsection 71(1) in conjunction with its corresponding provisions in the Regulations, and sections 97 and 98 of the Act. No arbitrariness was evident in the manner in which the limits were prescribed. There was no disruption in the chain of statutory authority flowing from the Act and the Regulations to the limits in CD 085. The limits in the CD were "prescribed by law".

Laliberté v. Canada (Correctional Service) (2000), 181 F.T.R. 276, [2000] F.C.J. No.548 (F.C.T.D.) — L made an application to participate in the private family visiting program so he could have the opportunity of having intimate relations with M. Both M and L were inmates in the same penitentiary. The court upheld the decision of the CSC to deny the request. In that decision the Assistant Commissioner arrived at the conclusion that the plaintiff could not participate in the private family visiting program as provided in Commissioner's Directive No. 770. Section 70 of the Act provides that personal dignity shall be respected and s71 confers a right on inmates to have relationships with persons in the community. L maintained that the director's refusal to give access to the private family visiting program in order to have a significant relationship in his life infringed his personal dignity and hence contravened s70 of the Act. The court concluded that the institutional head properly denied L access to the private family program. Despite the fact that paragraph 27 of the Directive allowed a visit by a person who has developed a significant relationship with the inmate during the latter's current period of incarceration, the visitor in question must still correspond either to the definition of a "visitor" within the meaning of the Act, to that of a "common-law partner" within the meaning of the Directive or to that of a "person from the community" within the meaning of the Directive. On the facts, M did not meet any of these definitions.

Wedow v. Canada (Correctional Service) (2001), 2001 FCT 1427, [2001] F.C.J. No.1947 (F.C.T.D.) — An inmate applied for judicial review where his friend, S, attempted to visit him but was refused entry because of a "positive hit" for cocaine and heroine reading on the institution's Ion Scanner. S was asked to leave and, despite verbal requests, she was not shown or given the test results in writing. The warden later denied further requests by both S and the inmate for the written test results. The central question was whether there was an obligation on the Warden to provide the inmate and S, in writing, the test results of the Ion Scan. In allowing the application, the court held that the Warden was required by law to do so. Section 71(1) of the CCRA entitles inmates to reasonable contact, including visits and correspondence, with family and friends. This right is subject to safety and security measures. This entitlement is reinforced by subsection 91(2) of the Regulations. The reason for refusing entry to S was the "positive hit" on the Ion Scanner, and, in the court's opinion, to be informed in writing of this reason means being given the Ion Scanner reading in writing. In addition the Regulations and the Directive afford the inmate and S procedural fairness rights that were breached in this case. By law, each was required to be promptly provided, in writing, the written test results of the Ion Scanner. "Promptness" in this case means that the inmate and S should have been provided with the written results at the time of the refusal. Failure to do so is contrary to law.

Members of Parliament, judges

72. Every member of the House of Commons, every Senator and every judge of a court in Canada has the right to

  • (a) enter any penitentiary,
  • (b) visit any part of a penitentiary, and
  • (c) visit any inmate, with the consent of the inmate,

subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons.

1992, c. 20, s. 72; 1995, c. 42, s. 18(F).

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Assembly and association

73. Inmates are entitled to reasonable opportunities to assemble peacefully and associate with other inmates within the penitentiary, subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons.

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Inmate input into decisions

74. The Service shall provide inmates with the opportunity to contribute to decisions of the Service affecting the inmate population as a whole, or affecting a group within the inmate population, except decisions relating to security matters.

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William Head Institution Inmate Committee v. Canada (Corrections Service) (1993), 17 Admin.L.R. (2d) 266, 24 C.R. (4th) 399, 66 F.T.R. 262, [1993] F.C.J. No.821 (F.C.T.D.) — Where the CSC ordered the applicant institution to terminate university programs offered to inmates, the court was unable to agree with the respondent's position that discussions with inmates after a decision is made is sufficient compliance with section 74. In quashing the decision, the court asserted that the heading immediately before section 74 states "Inmate Input into Decisions". The necessary implication of the words in section 74 and the accompanying heading is that the opportunity to contribute must be afforded to inmates before and not after a decision affecting them is made. The only question, then, was whether inmates must be consulted before all decisions affecting them, other than security decisions, are made. The court was of the view that decisions affecting inmates contemplated by section 74 are those that relate to the purpose of the correctional system as set out in section 3 of the Act, and the principles that are to guide the Correctional Service set out in section 4. Paragraph 3(b) expressly states that the provision of programs in penitentiaries to assist in the rehabilitation of offenders is for the purpose of contributing to the maintenance of a just, peaceful and safe society. Paragraph 4(c) provides the respondent is to communicate with offenders about such programs. The university program at issue here appeared to be part of an educational program for inmates, the introduction of which was to assist in their rehabilitation. From the material before the court, it was satisfied that the rehabilitation of inmates was an objective that was more likely to be achieved through the use of educational programs such as the university program than without them. These were the types of programs that the Act, in paragraph 4(c), intended that the CSC communicate to offenders. The court was therefore satisfied that decisions affecting educational programs for inmates in penitentiaries such as the program offered in this case are decisions contemplated by section 74 of the Act. In failing to provide the inmates at William Head with the opportunity to contribute to the decision terminating the university program, the CSC failed to adhere to the requirements of section 74 of the Act and therefore erred in law.

Alcorn v. Canada (Commissioner of Corrections) (1999), 163 F.T.R. 1, [1999] F.C.J. No.330 (F.C.T.D.) [affirmed F.C.A., 2002 FCA 154, [1999] F.C.J. No.620] — This was an application for judicial review of a decision of the CSC to implement the Millennium Telephone System in the Pacific Region. The applicants submitted that contrary to section 74 of the CCRA, the inmates had no opportunity to make representations before the implementation of the new telephone system. In dismissing the application, the court asserted that the statutory obligation to consult under this section is limited and does not apply to decisions relating to security matters. The court held that the issue here related to security matters, and in such circumstances, the CSC did not have an obligation to consult the inmates before making the decision to implement the Millennium Telephone System. Furthermore, it appeared on the evidence that the CSC tried to involve the in inmates as much as possible, in the implementation of the system, by consultation with the inmate committees in order to determine the phone numbers to be included on the common access list. It was also demonstrated before the court that the head of the inmate committee had sent a letter to the authorities raising certain problems and explaining their position regarding the implementation of the system in the Pacific region. The evidence indicated that they received a response from the CSC.

Religion

75. An inmate is entitled to reasonable opportunities to freely and openly participate in, and express, religion or spirituality, subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons.

1992, c. 20, s. 75; 1995, c. 42, s. 19(F).

Corresponding Regulations: Sections 83-101 Living Conditions

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Programs for Offenders

Programs for offenders generally

76. The Service shall provide a range of programs designed to address the needs of offenders and contribute to their successful reintegration into the community.

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Programs for female offenders

77. Without limiting the generality of section 76, the Service shall

  • (a) provide programs designed particularly to address the needs of female offenders; and
  • (b) consult regularly about programs for female offenders with
    • (i) appropriate women’s groups, and
    • (ii) other appropriate persons and groups
  • with expertise on, and experience in working with, female offenders.

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Payments to offenders

78. (1) For the purpose of

  • (a) encouraging offenders to participate in programs provided by the Service, or
  • (b) providing financial assistance to offenders to facilitate their reintegration into the community,

the Commissioner may authorize payments to offenders at rates approved by the Treasury Board.

Deductions

(2) Where an offender receives a payment referred to in subsection (1) or income from a prescribed source, the Service may

  • (a) make deductions from that payment or income in accordance with regulations made under paragraph 96(z.2) and any Commissioner’s Directive; and
  • (b) require that the offender pay to Her Majesty in right of Canada, in accordance with regulations made pursuant to paragraph 96(z.2.1) and as set out in a Commissioner’s Directive, an amount, not exceeding thirty per cent of the gross payment referred to in subsection (1) or gross income, for reimbursement of the costs of the offender’s food and accommodation incurred while the offender was receiving that income or payment, or for reimbursement of the costs of work-related clothing provided to the offender by the Service.

1992, c. 20, s. 78; 1995, c. 42, s. 20.

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William Head Institution Inmate Committee v. Canada (Corrections Service) (1993), 17 Admin.L.R. (2d) 266, 24 C.R. (4th) 399, 66 F.T.R. 262, [1993] F.C.J. No.821 (F.C.T.D.) — The CSC ordered the applicant institution to terminate university programs offered to inmates. The applicant argued that the decision to terminate was in violation of the mandatory obligation to provide courses under section 76 of the Act. The court refused to issue a writ of mandamus to compel the CSC to maintain a specific university program at the institution. As meritorious as the university program may be, the statute did not mandate its specific continuance. As long as a range of programs remained, the CSC was free to decide to terminate one program, such as the university program, as long as it was done in compliance with section 74. There was no legal obligation on the CSC to provide or maintain specific programs, and in particular, the university program at William Head Institution. There was, therefore, no basis for a writ of mandamus.

Kuipers v. Canada (1994), 74 F.T.R. 306, [1994] F.C.J. No.434 (F.C.T.D.) — This was an application for an interlocutory injunction to prevent the CSC from terminating the applicant inmate from his employment in an apprenticeship training program at a correctional facility by reason of his refusal to voluntarily participate in a sex offender treatment program. The inmate was assessed as requiring several programs prior to his release, one of which was sex offender treatment. A transfer to another facility would have been necessary to facilitate his participation in the sex offender program. This meant it would have been impossible to continue the employment program. Although the inmate had received a high performance rating for his work in the employment program, the court denied his application. In applying the tripartite test for interlocutory injunctions, the court dismissed the application. Although there was a serious issue to be tried, the court was not satisfied that the inmate had met the onus on him to establish that, if the injunction herein sought were not granted, he would suffer irreparable harm not compensable in damages. While it was true that sex offender programming might also be available within the community, the CSC would have no authority following warrant expiry to assure that such programming was undertaken and successfully completed. It was reasonable to assume that the inmate was more likely to pursue programming in the community that represented his priority than he was to pursue programming that represented the CSC's priority. Thus then, the court was not satisfied that the inmate, having failed to present any evidence that he could not complete his apprenticeship training in the community following his release, had established a sufficient likelihood of irreparable harm to meet the second element of the test. Moreover, the court concluded that it was apparent that the public interest concern in the balance of convenience test, on the facts before me, favoured priority being given to sex offender treatment programming for the inmate.

Sauvé v. Canada (Chief Electoral Officer) (1995), 132 D.L.R. (4th) 136, 106 F.T.R. 241, [1996] 1 F.C. 857, [1995] F.C.J. No.1735 (F.C.T.D.) — Paragraph 51(e) of the Canada Elections Act, which prohibited all prisoners serving a sentence of two years or more in a correctional institution from voting at a federal election, contravened section 3 of the Charter. Citing section 76 of the CCRA, the court was of the view that corrections policy emphasizes the rehabilitation of the offender, and his reintegration into the community. While the defendants argue that disenfranchisement can contribute to rehabilitation, the court preferred the plaintiffs' evidence suggesting that paragraph 51(e) of the CEA hindered the rehabilitation of offenders and their successful reintegration into the community. The provision only served to further alienate prisoners from the community to which they must return, and in which their families live.

R v. Williston (1999), 209 N.B.R. (2d) 270, 530 A.P.R. 270, [1999] N.B.J. No.85 (N.B.C.A.) — The court viewed section 76 of the CCRA as one of the powers invested in officials of the CCRA which provide for a considered and weighted inspection and examination of an inmate's rehabilitation prospect and his or her restoration in society. Here, an inmate was sentenced to 11 years of imprisonment for manslaughter and 18 months concurrent for the aggravated assault. Pursuant to section 743.6 of the Criminal Code, the offender was required to serve one half of the term of imprisonment before being eligible to apply for parole. The trial judge imposed the order under section 743.6 in part so that the offender would remain in the federal correctional system for enough time to allow him to obtain counselling. In dismissing the appeal, the court was of the view that by section 743.6(1) of the Criminal Code Parliament decreed that in certain circumstances a judge may supersede and suspend the powers granted in the CCRA stating the criteria to be considered. Section 743.6(1) ought not to be invoked for the purpose of increasing the penalty or the sentence. The length and extent of the sentence has already been decided. It is the seriousness of the crime and the personality of the offender which need to be addressed in light of societal exigency.

Aboriginal Offenders

Definitions

79. In sections 80 to84,

aboriginal means Indian, Inuit or Métis; (autochtone)

aboriginal community means a first nation, tribal council, band, community, organization or other group with a predominantly aboriginal leadership; (collectivité autochtone)

correctional services means services or programs for offenders, including their care and custody. (services correctionnels)

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Programs

80. Without limiting the generality of section 76, the Service shall provide programs designed particularly to address the needs of aboriginal offenders.

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Agreements

81. (1) The Minister, or a person authorized by the Minister, may enter into an agreement with an aboriginal community for the provision of correctional services to aboriginal offenders and for payment by the Minister, or by a person authorized by the Minister, in respect of the provision of those services.

Scope of agreement

(2) Notwithstanding subsection (1), an agreement entered into under that subsection may provide for the provision of correctional services to a non-aboriginal offender.

Placement of offender

(3) In accordance with any agreement entered into under subsection (1), the Commissioner may transfer an offender to the care and custody of an aboriginal community, with the consent of the offender and of the aboriginal community.

1992, c. 20, s. 81; 1995, c. 42, s. 21(F).

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Advisory committees

82. (1) The Service shall establish a National Aboriginal Advisory Committee, and may establish regional and local aboriginal advisory committees, which shall provide advice to the Service on the provision of correctional services to aboriginal offenders.

Committees to consult

(2) For the purpose of carrying out their function under subsection (1), all committees shall consult regularly with aboriginal communities and other appropriate persons with knowledge of aboriginal matters.

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Spiritual leaders and elders

83. (1) For greater certainty, aboriginal spirituality and aboriginal spiritual leaders and elders have the same status as other religions and other religious leaders.

Idem

(2) The Service shall take all reasonable steps to make available to aboriginal inmates the services of an aboriginal spiritual leader or elder after consultation with

  • (a) the National Aboriginal Advisory Committee mentioned in section 82; and
  • (b) the appropriate regional and local aboriginal advisory committees, if such committees have been established pursuant to that section.

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Release to aboriginal community

84. If an inmate expresses an interest in being released into an aboriginal community, the Service shall, with the inmate’s consent, give the aboriginal community

  • (a) adequate notice of the inmate’s parole review or their statutory release date, as the case may be; and
  • (b) an opportunity to propose a plan for the inmate’s release and integration into that community.

1992, c. 20, s. 84; 2012, c. 1, s. 66.

Previous Version

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Plans with respect to long-term supervision

84.1 Where an offender who is required to be supervised by a long-term supervision order has expressed an interest in being supervised in an aboriginal community, the Service shall, if the offender consents, give the aboriginal community

  • (a) adequate notice of the order; and
  • (b) an opportunity to propose a plan for the offender’s release on supervision, and integration, into the aboriginal community.

1997, c. 17, s. 15.

Corresponding Regulations: Section 114 Aboriginal Offenders

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R v. Bearshirt (1987), 3 W.C.B. (2d) 23 (Alta.Q.B.) — The court granted declaratory relief to an Aboriginal inmate who sought to have a prayer bundle used by him in his religion with him in his cell. Some of the articles in the bundle could be used to injure the accused or others, but since the accused was kept in a single cell no undue difficulty would be encountered by the authorities in permitting him to have the prayer bundle. The prison direction that deprived the accused of his prayer bundle therefore offended his section 2 Charter guarantee to freedom of religion and could not be saved by section 1.

Mountain Institution (Native Transfer Committee) v. Canada (Solicitor General) (1997), 125 F.T.R. 10, [1997] F.C.J. No.19 (F.C.T.D.) — This was an action by a Native Transfer Committee at Mountain Institution seeking, on behalf of some 1,800 aboriginal inmates, the implementation of section 81 of the Corrections and Conditional Release Act. The court held that this action could not succeed either as a class action or, with an amendment to the style of cause, as an action by one or more named Plaintiffs in their own right. In the former instance all of the class neither have the same interest and grievance nor will all of the class obtain a benefit. Moreover, in both the former and the latter instances the claim was not good at law. The court was of the view that a permissive provision in legislation does not lead to a positive duty to authorize alternative corrective measures. This finding was directly applicable to this action for section 81 of the Act is clearly permissive in providing that the Minister may enter into an agreement with an aboriginal community to provide correctional services to aboriginal offenders. There is, therefore, no duty in the present instance. It was clear and beyond doubt that the Plaintiffs' claim would not succeed by reason of this lack of duty: in short, the court found that the cause of action was unreasonable and decided that the action ought to be struck.

Health Care

Definitions

85. In sections 86 and 87,

health care means medical care, dental care and mental health care, provided by registered health care professionals; (soins de santé)

mental health care means the care of a disorder of thought, mood, perception, orientation or memory that significantly impairs judgment, behaviour, the capacity to recognize reality or the ability to meet the ordinary demands of life; (soins de santé mentale)

Version anglaise seulement

treatment means health care treatment. (Version anglaise seulement)

Judicial Consideration —

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Obligations of Service

86. (1) The Service shall provide every inmate with

  • (a) essential health care; and
  • (b) reasonable access to non-essential mental health care that will contribute to the inmate’s rehabilitation and successful reintegration into the community.

Standards

(2) The provision of health care under subsection (1) shall conform to professionally accepted standards.

Judicial Consideration —

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Service to consider health factors

87. The Service shall take into consideration an offender’s state of health and health care needs

  • (a) in all decisions affecting the offender, including decisions relating to placement, transfer, administrative segregation and disciplinary matters; and
  • (b) in the preparation of the offender for release and the supervision of the offender.

Judicial Consideration —

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When treatment permitted

88. (1) Except as provided by subsection (5),

  • (a) treatment shall not be given to an inmate, or continued once started, unless the inmate voluntarily gives an informed consent thereto; and
  • (b) an inmate has the right to refuse treatment or withdraw from treatment at any time.

Meaning of “informed consent”

(2) For the purpose of paragraph (1)(a), an inmate’s consent to treatment is informed consent only if the inmate has been advised of, and has the capacity to understand,

  • (a) the likelihood and degree of improvement, remission, control or cure as a result of the treatment;
  • (b) any significant risk, and the degree thereof, associated with the treatment;
  • (c) any reasonable alternatives to the treatment;
  • (d) the likely effects of refusing the treatment; and
  • (e) the inmate’s right to refuse the treatment or withdraw from the treatment at any time.

Special case

(3) For the purpose of paragraph (1)(a), an inmate’s consent to treatment shall not be considered involuntary merely because the treatment is a requirement for a temporary absence, work release or parole.

Treatment demonstration programs

(4) Treatment under a treatment demonstration program shall not be given to an inmate unless a committee that is independent of the Service and constituted as prescribed has

  • (a) approved the treatment demonstration program as clinically sound and in conformity with accepted ethical standards; and
  • (b) reviewed the inmate’s consent to the treatment and determined that it was given in accordance with this section.

Where provincial law applies

(5) Where an inmate does not have the capacity to understand all the matters described in paragraphs (2)(a) to (e), the giving of treatment to an inmate shall be governed by the applicable provincial law.

Judicial Consideration —

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Force-feeding

89. The Service shall not direct the force-feeding, by any method, of an inmate who had the capacity to understand the consequences of fasting at the time the inmate made the decision to fast.

Judicial Consideration —

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British Columbia (Attorney General) v. Astaforoff (1983), 6 C.C.C. (3d) 498, 38 C.R. (3d) 294, [1984] 4 W.W.R. 385 (B.C.C.A.) — Although the Penitentiary Service Regulations imposed upon the CSC a duty to provide essential medical and dental care to inmates, the court ruled in this case that there was no statutory duty requiring prison officials to force-feed an inmate on a hunger strike without his or her consent. As well, it was not clear that there was a common law duty to force-feed an inmate in such circumstances.

R v. Bishop (1993), 13 Alta.L.R. (3d) 145, 145 A.R. 222, [1993] A.J. No.725 (Alta.C.A.) — This was an appeal of a sentence of indeterminate incarceration imposed on an inmate. The appellant argued that the sentence imposed was a breach of his right not to be subject to cruel and unusual treatment or punishment pursuant to s12 of the Charter, as the trial judge found as a fact that the type of psychiatric treatment this accused would require if he was to have any chance of recovery was not available in the federal prison system at the time. This fact, the appellant submitted, made the sentence imposed indeterminate in nature, and thus constituted cruel and unusual punishment. Although the court was of the opinion, referring to subsection 86(1), that the law was broad enough to encompass the type of treatment that may be required for a dangerous offender, the appeal was dismissed as premature. The court was satisfied that the law does provide, and did at the time of sentencing provide, adequate protection on its face. While it may be that at some later time, if the treatment had not been made reasonably available to this prisoner, it could be argued that his sentence had become disproportionate, the matter could be addressed at some later point in time if the facts were such that a disproportionate sentence became inevitable.

Kuipers v. Canada (1994), 74 F.T.R. 306, [1994] F.C.J. No.434 (F.C.T.D.) — This was an application for an interlocutory injunction to prevent the CSC from terminating the applicant inmate from his employment in an apprenticeship training program at a correctional facility by reason of his refusal to voluntarily participate in a sex offender treatment program. The inmate was assessed as requiring several programs prior to his release, one of which was sex offender treatment. A transfer to another facility would have been necessary to facilitate his participation in the sex offender program. This meant it would have been impossible to continue the employment program. The court held that the sex offender treatment program that the inmate was being pressed to attend was "treatment" within the terms of subsection 88(1). Thus, the court was of the view that the inmate may either facilitate the CSC's priorities or frustrate them completely by reason of the provisions of subsection 88(1). If he chooses to thwart the CSC's priorities, the CSC had indicated that it would, in turn, thwart his desire to complete his apprenticeship program. While the inmate may not view this tactic on the part of CSC as entirely fair, or, indeed, consistent with its obligations to provide programming, the court found nothing that would preclude CSC's resort to this kind of "carrot and stick" approach.

Kelly v. Canada (1996), 114 F.T.R. 285, [1996] F.C.J. No.880 (F.C.T.D.) — An inmate who suffered from Environmental Sensitivity Disorder (ESD) claimed that the CSC did not take the necessary steps to alleviate his condition as a result of which he has endured unnecessary suffering and aggravation to his health. He sought certain declaratory relief including a declaration that the actions of the CSC constituted a failure to provide essential health care contrary to subsection 86(1) of the Act, relief under the Charter and damages. In dismissing the application, the court expressed the view that the evidence supported the CSC's submission that they have taken all reasonable steps to fulfill the statutory requirements. The evidence indicated that the inmate's medical condition had not been ignored. He has twice been referred by the CSC to a medical doctor with experience with this disorder. The CSC has followed up on these medical recommendations, albeit with often times limited results. The CSC had attempted to respond to the requests made by the inmate, both in terms of providing him with appropriate equipment, such as masks, and by creating specifically for him a job that allowed him to spend his days outside. The CSC attempted to find him alternate living arrangements that both suited his particular needs while at the same time maintain the integrity and security of the penitentiary setting. In addition, the CSC has always attempted to find appropriate accommodations for the inmate to meet with counsel or with visitors. On the other hand, the court was satisfied that the inmate made few efforts of his own to deal with his medical condition within the realities of his lawful confinement in a federal penitentiary.

R v. Hall (1996), 45 Alta.L.R. (3d) 177, 191 A.R. 166, [1996] A.J. No.1098 (Alta.Q.B.) — The court stated that it was cognizant that pursuant to the Corrections and Conditional Release Act, and specifically to Section 85, the Canadian Correctional Service shall provide inmates with essential medical and dental care. This includes reasonable access to non-essential mental health care, so as to contribute to the inmate's rehabilitation and successful reintegration into the community.

Strykiwsky v. Stony Mountain Institution (2000), 193 F.T.R. 59, [2000] F.C.J. No.1404 (F.C.T.D.) — In July of 1998, the Correctional Service of Canada introduced Phase I of a methadone regime which was made available only to those entering federal prisons who were already enrolled in a community methadone maintenance program. Only on an exceptional basis - when there was a dire need for immediate medical intervention, could an inmate who did not meet the criteria receive methadone. It was contemplated that Phase II, in which all inmates will be eligible to receive methadone, might be implemented in the future but this phase was not implemented as of the date of the hearing. The inmate applicant filed for judicial review alleging that the ongoing refusal of the CSC to provide methadone maintenance treatment to him-self and other federal inmates in need and wishing to receive it was contrary to section 86 of the CCRA and a breach of sections 7, 12 and 15 of the Charter. Subsequently, the inmate filed a motion for interim relief requesting that he receive methadone treatment pending the resolution of his application for judicial review. An agreement was reached, however, between the inmate and the CSC, and a consent order was drawn up setting aside the original refusal to treat him on an exceptional basis and referring the matter back to the CSC. This consent order was promulgated by a Mr. Justice Gibson and dated March 14, 2000.

R v. Payne (2001), 41 C.R. (5th) 156, [2001] O.J. No.146 (Ont.S.C.J.) — Citing subsections 88(1)(a) , and (3) of the CCRA, the court was of the view that an offender on conditional release by way of a long-term supervision order may be compelled by a term of the order to undertake treatment and related pharmaceutical intervention where essential to management of the accused's risk of re-offending. In other words, the offender's consent to such a condition is not required. Should the offender breach terms of the order respecting treatment or medication, he or she is subject to apprehension with suspension of the order pursuant to s135.1 of the Act or to arrest and prosecution pursuant to s753.3(1) of the Criminal Code. The entire object of the long-term offender regime would be undermined by providing the offender the ability to defeat risk management. Accordingly, mandatory treatment and medication conditions in an order are a proportionate response to protecting the public from a person who, by definition, is a substantial risk to reoffend.

Grievance or Complaint Procedure

Grievance procedure

90. There shall be a procedure for fairly and expeditiously resolving offenders’ grievances on matters within the jurisdiction of the Commissioner, and the procedure shall operate in accordance with the regulations made under paragraph 96(u) .

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Access to grievance procedure

91. Every offender shall have complete access to the offender grievance procedure without negative consequences.

1992, c. 20, s. 91; 1995, c. 42, s. 22(F).

Corresponding Regulations: Sections 74-82 Offender Grievance Procedure

Judicial Consideration —

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Fitzgerald v. Canada (Correctional Service) [1990] B.C.J. No.2873 (B.C.S.C.), 1990 CanLII 1499 (BC S.C.) — It was no answ er that the petitioner has a right under the directives to grieve an adverse decision. If the original decision is flawed by a breach of the rules of natural justice, his remedy should lie with the Court.

Lee v. Canada (Correctional Service) (1994), 24 Admin. L.R. (2d) 205, 33 C.R. (4th) 328, 80 F.T.R. 90, [1994] F.C.J. No.889 (F.C.T.D.) — This was a case where the CSC transferred an inmate a second time for the underlying alleged event after the first transfer decision was quashed. Since the original transfer decision was considered, and upheld, by the Commissioner's rejection of the applicant's third and final grievance of that decision, the court held that permitting the Deputy Commissioner to now make a decision on the second attempt to transfer creates a reasonable apprehension of bias. This is so because there is serious doubt that a subordinate can approach the question of altering his superior's prior decision with the objectivity and independence that is required for a fair decision. Furthermore, subsection 81(1) of the Regulations was not followed as the inmate's third level grievance was dealt with after the application for judicial review had been filed. It was argued that subsection 81(1) was designed to prevent what happened in this case from occurring. The court expressed the view that the decisions should be quashed based on the non-compliance with the Regulations, subsection 81(1), and the existence of a reasonable apprehension of bias. The application was allowed and the decision to transfer quashed.

Johnston c. Centre régional de réception [1995] R.J.Q. 3000, A.Q. No.1414 (Que.S.C.) — In this case, the inmate had not exhausted the internal grievance procedure prior to seeking judicial review. The approach taken, as a whole, by the judges of the Quebec Superior Court is not to intervene when the initial remedies have not been exhausted unless there is some flagrant departure form or breach of an applicant's constitutional rights. In agreeing to hear the application, the court noted that the question raised was constitutional in nature, was a serious question and that in some respects there was no precedent regarding it. Furthermore, the alternative remedy might not make settlement possible and may have the effect of delaying the outcome of the case.

Doran v. Canada (Correctional Services) (1996), 108 F.T.R. 93, [1996] F.C.J. No.304 (F.C.T.D.) — The CSC maintained that since the inmate applicants did not use the Offender Grievance Procedure provided for under the Regulations, but instead chose to seek judicial review in this court, they should not be entitled to the extraordinary remedies which they sought when another procedure for dealing with their grievances was available. That procedure exists under sections 74 to 82 of the Regulations. The court noted that under those Regulations, s81 contemplates the possibility of applying for a legal remedy at the same time as the grievance procedure is pursued and it suspends the latter process until the former process is completed or abandoned. For the court, it clearly contemplates legal proceedings at the option of the person with a grievance. In the court's opinion, the matter here in issue, i.e., the lawful authority of the respondent Commissioner, is ultimately determinable by the process here instituted, an application for judicial review. In this circumstance, failure to follow an internal grievance process ought not to preclude the exercise of discretion to grant relief here sought.

Dégarie v. Canada (1997), 141 F.T.R. 142, [1997] F.C.J. No.947 (F.C.T.D.) — The CSC transferred the inmate from one specific segregation unit to another within the same penitentiary. The only difference between the two units was the level of contact with the regular population, with the inmate moving involuntarily to the more 'restrictive' unit. The inmate applied for judicial review while several grievances had reached the third level and had not yet been disposed of. Although internal remedies had not been exhausted, the court heard the application and ultimately dismissed it. The court asserted that it need not express an opinion concerning the grievances that were pending during trial.

Fortin v. Donnacona Institution (1997), 153 F.T.R. 84, [1997] F.C.J. No.138 (F.C.T.D.) — It is well settled that in principle an individual must exhaust alternate or internal remedies before applying to the Court for a prerogative writ to issue. There are, however, exceptions. It was suggested that where there is a flagrant breach of natural justice and where the internal statutory remedy is inadequate, then an application for judicial review should be allowed without prior exhaustion of those alternate remedies.

Giesbrecht v. Canada (1998), 10 Admin. L.R. (3d) 246, 148 F.T.R. 81, [1998] F.C.J. No. 621 (F.C.T.D) — In refusing to hear G's application for judicial review, the Court held that on its face, the legislative scheme providing for grievances is an adequate alternate remedy to judicial review. Judicial review is a discretionary remedy and the court cannot be precluded from determining that an adequate alternate remedy exists simply because an applicant has filed a judicial review application. Section 81(1) of the Regulations is not intended to detract from the court's discretion in this respect. Moreover, s81(1) does not act as a bar to the grievance proceeding should the court find that procedure to be an adequate alternative remedy and thereby dismissing the judicial review application.

Forrest v. Canada (Solicitor General) (1998), 154 F.T.R. 22, [1998] F.C.J. No.1483 (F.C.T.D.) —F did not avail himself of the opportunity to file a grievance regarding the denial of his request for a voluntary transfer from a higher security to a lesser security institution. As a consequence, the application for judicial review of the denial to allow the voluntary transfer was premature.

Miller v. Canada [1999] F.C.J. No.477 (F.C.T.D.), 1999 CanLII 7943 (F.C.) — A dispute arose between the applicant inmate and the CSC as to the number of hours that the inmate worked each day with regards to his institutional employment program. Complaints filed to the supervisor of his unit, as per section 74 of the Regulations were rejected. The inmate then turned to the grievance process but all three applications were denied. The Level 3 Grievance, decided by the Acting Assistant Commissioner, is the conclusion of the inmate grievance system and was the decision for which the inmate sought review. The applicant submitted that the official conducting the Level 3 grievance failed in his duty to act fairly. In particular, the applicant claimed that the official fettered his discretion in relying too heavily on the decisions at the earlier stages of the grievance process. In the applicant's view, the Acting Assistant Commissioner did not perform an impartial or unbiased review of the record before him. The applicant also submitted that he was denied natural justice and procedural fairness at the Level 2 grievance when that grievance officer contacted the Program Co-ordinator at the institution to obtain a job description for his position. The applicant was not told of this communication, nor was he given an opportunity to respond to a job description that he felt was inaccurate. Finally, the applicant submitted that the Level 3 grievance decision was based on errors of fact. The court ultimately agreed with the position of the CSC, who argued that the Level 3 grievance officer made a reasonable decision supported by the evidence, acted in accordance with the principles of natural justice and procedural fairness, and complied with all the statutory requirements. In particular, the Acting Assistant Commissioner did not err in considering the previous grievance related decisions, since section 82 of the Regulations places a statutory duty upon him to take into consideration any efforts on the part of staff and the offender to resolve the issue, including any recommendations resulting there from. The court also agreed with the CSC's view that the applicant's allegations of a breach of natural justice were no longer relevant since the applicant was given an opportunity to submit new information at the Level 3 grievance and could have raised this issue in relation to the Level 2 decision at that time. The application for judicial review was denied.

Sweet v. Canada (1999), 249 N.R. 17, [1999] F.C.J. No.1539 (F.C.A.), 1999 CanLII 8927 (F.C.A.) — Counsel for the CSC argued that the appellant inmate ought to have exhausted the appeal process provided by section 80 of the Regulations before attacking the practice or policy of double-bunking. The court responded that it was not for certain that the constitutional validity of the practice or policy could have been ruled upon in the grievance process. What the appellant was attacking was not so much the decision of the CSC to force him to share a cell, as much as the policy of double bunking in it-self. The thrust of the appellant's argument is that the policy of double bunking, which affects the appellant and many other inmates, should be declared invalid. That policy is an on-going one that may be challenged at any time. Judicial review, with the associated remedies of declaratory, prerogative and injunctive relief, was the proper way to bring that challenge to this Court.

Bordage v. Archambault Institution (2000), 204 F.T.R. 133, [2000] F.C.J. No.1976 (F.C.T.D.) — In support of his argument that the inmate's application for judicial review should be dismissed on the ground that he did not make use of the grievance system, the Attorney General of Canada cited the judgment of Giesbrecht v. Canada , [1998] F.C.J. No. 621, Anderson v. Canada (Armed Forces) , [1997] 1 F.C. 273 (C.A.), and St-Amand v. Canada (Attorney General) (2000), 147 C.C.C. (3d) 48 (Que.C.A.). The inmate applicant cited Marachelian v. Canada (Attorney General) , [2000] F.C.J. No.1128 (F.C.T.D.) and the comments of Arbour J. in her report of the Commission of Inquiry Into Certain Events Occurring at the Prison for Women in Kingston. The court noted that Marachelian endorsed the rule that other remedies should be exhausted but made an exception that did not apply in this case. Further, the court noted that in her inquiry report Arbour J. warned that she did not have sufficient information to formulate comments on the grievance resolution procedure and grievances in the Correctional Service in general. Giesbrecht and St-Amand held that the grievance system laid down in the Act, the Regulations, CD No. 540 and the SOPs are an adequate statutory procedure which must be exhausted before initiating an application for judicial review when the question is one relating to a security rating or placement. The court found that the circumstances in St-Amand were identical to those of the case at bar and came to the conclusion that the application for judicial review must be dismissed because it did not comply with the rule that other remedies must be exhausted.

Marachelian v. Canada (Attorney General) (2000), 1 F.C. 17, 187 F.T.R. 238, [2000] F.C.J. No.1128 (F.C.T.D.) — The court upheld the general rule that internal remedies should be exhausted before judicial review is sought. However, the facts of this case constituted an exception. There existed evidence supporting M's contention that the CSC had allowed its position regarding his security classification to be dictated to it by another agency - namely the RCMP and CSIS. A grievance that put such an issue into question could not be credibly be adjudicated by the CSC since the CSC itself was implicated.

Ross v. Canada [2000] F.C.J. No.1711 (F.C.T.D.) — These reasons arose from a motion in writing to strike out the action of a Federal prison inmate, serving his sentence in a medium security institution, a proceeding that the defendant submitted ought to be by way of an application for judicial review. In the Statement of Claim the plaintiff referred to past wrongful conviction, present wrongful conviction, transfers between institutions which are said to have put him at danger and then goes on to seek $100,000 in damages for failure to provide needed educational programs, a writ of mandamus to remove points which the plaintiff says were unfairly added to his security classification scale and an order transferring him to a minimum security facility. The court was in agreement with the defendant that this proceeding ought to have progressed through the Grievance and Review System set out in the appropriate legislation and that if the plaintiff were then dissatisfied he might bring a judicial review application under section 18.1 of the Federal Court Act. In this way the plaintiff might have dealt with transfers among institutions, transfers with which he disagrees. By that procedure he could have obtained at least an initial review of the extra penalty points which the plaintiff says were added to his docket, thus limiting his access to a minimum-security facility. However it was certainly not up to the court, in this case, to determine the institution in which the plaintiff ought to serve his sentence. That is the purpose of the process set out in the CCRA, and particularly as set out sections 28, 29, 90 and 91 of that Act and in sections 11 through 16 and 74 through 82 of the Regulations. The court affirmed that these are internal procedures that should be exhausted, except in special circumstances, for example where internal procedures would not afford any real remedy. An inmate must follow such procedures before he or she becomes eligible for the review procedure offered by the Federal Court. In this case there were no special circumstances set out in the plaintiff's material that might provide an exception to this general rule.

St-Amand v. Canada (Attorney General) (2000), 147 C.C.C. (3d) 48 (Que.C.A.) (French version) — This was a case where the applicant did not avail himself of the internal grievance procedure before applying for habeas corpus. As opposed to other extraordinary remedies, habeas corpus is remedy as of right once evidence has led the Court to conclude that the applicant has been illegally deprived of his liberty. Yet, even if the remedy of habeas corpus is not discretionary, it will nevertheless be refused if the applicant has not exhausted all his avenues of appeal. In the same manner, habeas corpus may not be used redundantly with the system of judicial review. However, the enactment of the Charter has had the effect of expanding the scope of habeas corpus. The Supreme Court of Canada has ruled that the rules of common law governing habeas corpus motions should be applied in a flexible manner if the applicant has demonstrated that continued detention breaches the principles of fundamental justice recognized under the Charter. The possibility of recourse to habeas corpus as a remedy under paragraph 24(1) of the Charter thus allows the Courts a wider latitude when the application is truly of a constitutional nature. As the record did not disclose any extraordinary circumstances allowing for the conclusion that the statutory procedure was not appropriate and that the requirements of fundamental justice required immediate recourse to habeas corpus, it was not appropriate to apply the wider scope of review by way of writ of habeas corpus in this case.

Tehrankari v. Canada (Correctional Service) (2000), 188 F.T.R. 206, 38 C.R. (5th) 43, [2000] F.C.J. No.495 (F.C.T.D.) — The decision sought to be reviewed here was made by the Commissioner of the CSC at the final grievance level prescribed by section 90 of the Act and sections 74 to 80 of the Corrections and Conditional Release Regulations. The court referred to Pushpanathan v. Canada (Minister of Citizenship and Immigration) , [1998] 1 S.C.R. 982 and Baker v. Canada (Minister of Citizenship and Immigration) , [1999] 2 S.C.R. 817, where the Supreme Court of Canada enumerated the four factors to be examined to assess the standard of review on these questions. The first factor to be examined is the presence or absence of a privative clause in the Act. The court pointed to the fact that there is no privative clause contained in the Act insulating the decisions of the Commissioner taken in the grievance process.

Mennes v. McClung (2001), 2001 FCT 1349, [2001] F.C.J. No.1830 (F.C.T.D.) — In a case where a third level grievance decision was rendered by the Acting Assistant Commissioner, it was claimed by the inmate applicant that subsections 80(2) and 80(3) of the Regulations state that the Commissioner of Corrections, rather than the Acting Assistant Commissioner, should have been the one to hear his appeal. The applicant relied upon subsections 80(2) and 80(3) of the Regulations and the long established rule of delegatus non potest delegare as a principle of interpretation or statutory construction. The respondent, however, asserted that at each level of the applicant's grievance the appropriate party designated under the Act and the Regulations reviewed the decision. Sections 75-82 of the Regulations provide for the grievance process and there is clearly no requirement under the Act or the Regulations for the Commissioner of Corrections, to individually or directly review complaints at the third level appeal or at any other level. In addition, it would be impractical for the Commissioner of Corrections to have to review all the grievances made by every inmate in the country, at each level of appeal. The court was of the view that the resolution to this issue is found in several sources: section 97 of the Act, section 98 of the Act, Commissioner's Directive Number 081 dated June 22, 1998 entitled Offender Complaints and Grievances (CD 081), and lastly subsection 2(2) of the Act - the French version of this latter provision being more instructive than the English version. Ultimately, the court held that the Acting Assistant Commissioner held the proper authority by virtue of the aforementioned sources in rendering the final decision within the grievance process under subsections 80(2) and 80(3) of the Regulations. The Commissioner of Corrections appropriately delegated to the Acting Assistant Commissioner the determination of the outcome of the applicant's final grievance.

Pinkney v. Canada (Correctional Service) (2001), 2001 FCT 1053, [2001] F.C.J. No.1464 (F.C.T.D.) — If an inmate takes issue with the provision of information by the Correctional Service of Canada then by law he must use the grievance procedure provided in the CCRA and Regulations that set out an adequate alternative remedy that must be pursued prior to seeking judicial review. On that score, as in previous decisions of this Court on such issues, the applicant, once again, has failed to avail himself of the adequate alternative remedies and, consequently, this prong of his application must be dismissed.

Frivolous complaints, etc.

91.1 (1) If the Commissioner is satisfied that an offender has persistently submitted complaints or grievances that are frivolous, vexatious or not made in good faith, the Commissioner may, in accordance with the prescribed procedures, prohibit an offender from submitting any further complaint or grievance except by leave of the Commissioner.

Review of prohibition

(2) The Commissioner shall review each prohibition under subsection (1) annually and shall give the offender written reasons for his or her decision to maintain or lift it.

2013, c. 3, s. 2.

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Regulations

91.2 The Governor in Council may make regulations respecting the complaints and grievances regime with respect to offenders who are subject to a prohibition under subsection 91.1(1).

2013, c. 3, s. 2.

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Release of Inmates

General

92. An inmate may be released from a penitentiary or from any other place designated by the Commissioner.

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Timing of release from penitentiary

93. (1) Except as provided by subsection (2), an inmate who is entitled to be released from penitentiary on a particular day by virtue of statutory release or the expiration of the sentence shall be released during normal business hours on the last working day before that day.

Earlier release in some cases

(2) Where the institutional head is satisfied that an inmate’s re-entry into the community will be facilitated by an earlier release than that provided for by subsection (1), the institutional head may release the inmate up to five days before the day on which the inmate is entitled to be released by virtue of statutory release or the expiration of the sentence.

When inmate deemed released

(3) An inmate who is released pursuant to subsection (2) shall be deemed to have been released by virtue of statutory release or the expiration of the sentence, as the case may be, at the moment of actual release.

(3.1) [Repealed, 2011, c. 11, s. 2]

Release on request

(4) Where an inmate who is in penitentiary pursuant to subsection 94(1) requests to be released, the Service shall release the inmate as soon as reasonably possible, but is not required to release the inmate except during normal business hours on a working day.

(5) [Repealed, 1995, c. 42, s. 23]

1992, c. 20, s. 93; 1995, c. 42, s. 23; 2011, c. 11, s. 2; 2012, c. 1, s. 67(F).

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Temporary Accommodation in Penitentiary

Temporary stay in penitentiary

94. (1) At the request of a person who has been or is entitled to be released from a penitentiary on parole or statutory release, the institutional head may allow them to stay temporarily in the penitentiary in order to assist their rehabilitation, but the temporary stay may not extend beyond the expiration of their sentence.

Person deemed an inmate

(2) A person staying temporarily in a penitentiary pursuant to subsection (1) shall be deemed to be an inmate while in the penitentiary.

Continuation of parole or statutory release

(3) Notwithstanding subsection (2), the parole or statutory release, as the case may be, of a person staying temporarily in a penitentiary pursuant to subsection (1) is deemed to be in force and subject to the provisions of this Act.

1992, c. 20, s. 94; 1995, c. 42, s. 24; 2012, c. 1, s. 68.

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McWhinney v. Canada (Commissioner of Corrections) (1996), 1 C.R. (5th) 116, 117 F.T.R. 81, [1996] F.C.J. No.1051 (F.C.T.D.) — The court did not accept the submissions of an inmate applicant who attempted to argue that in light of the definition of the word "inmate" adopted by Parliament, it was not impossible that a person may be physically within a penitentiary during the course of being under a sentence of punishment imposed by a court, yet not be an "inmate" as defined under the CCRA. This was, as the applicant submitted, implicitly acknowledged by Parliament itself when it enacted section 94 of the CCRA - if every person physically inside a penitentiary while he or she is under a sentence of punishment were "automatically" an inmate under the CCRA, there would be no need for Parliament to enact a "deeming" provision such as subsection 94(2).

Annual Report

Annual report

95. The Minister shall cause to be laid before each House of Parliament, not later than the fifth sitting day of that House after the 31st day of January next following the end of each fiscal year, a report showing the operations of the Service for that fiscal year.

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Regulations

Regulations

96. The Governor in Council may make regulations

  • (a) prescribing the duties of staff members;
  • (b) for authorizing staff members or classes of staff members to exercise powers, perform duties or carry out functions that this Part assigns to the Commissioner or the institutional head;
  • (c) respecting, for the purposes of section 22,
    • (i) the circumstances in which compensation may be paid,
    • (ii) what constitutes a disability,
    • (iii) the manner of determining whether a person has a disability, and the extent of the disability,
    • (iv) what constitutes an approved program,
    • (v) to whom compensation may be paid, and
    • (vi) the compensation that may be paid, the time or times at which the compensation is to be paid, the terms and conditions in accordance with which the compensation is to be paid, and the manner of its payment;
  • (d) respecting the placement of inmates pursuant to section 28 and their transfer pursuant to section 29;
  • (e) providing for the matters referred to in section 70;
  • (f) respecting allowances, clothing and other necessities to be given to inmates when leaving penitentiary either temporarily or permanently;
  • (g) respecting the administrative segregation of inmates;
  • (h) prescribing the contents of the notice to be given to an inmate under section 42, and the time when the notice is to be given to the inmate;
  • (i) in connection with the disciplinary sanctions described in section 44,
    • (i) prescribing the maximum of each of those sanctions, which maxima shall be higher for serious disciplinary offences than for minor ones,
    • (ii) prescribing factors and guidelines to be considered or applied in imposing those sanctions,
    • (iii) prescribing the scope of each of those sanctions, and
    • (iv) respecting the enforcement, suspension and cancellation of those sanctions;
  • (j) providing for a review of the decisions of the person or persons conducting a disciplinary hearing;
  • (k) providing for
    • (i) the appointment of persons other than staff members to conduct disciplinary hearings or to review decisions pursuant to regulations made under paragraph (j), and
    • (ii) the remuneration and travel and living expenses of persons referred to in subparagraph (i);
  • (l) prescribing the manner in which a search referred to in
    • (i) paragraph (b) of the definition “frisk search” in section 46,
    • (ii) paragraph (b) of the definition “non-intrusive search” in section 46, or
    • (iii) paragraph (b) of the definition “strip search” in section 46
  • shall be carried out;
  • (m) prescribing the procedures to be followed in conducting a urinalysis and the consequences of the results of a urinalysis;
  • (m.1) authorizing the Commissioner to, by Commissioner’s Directive, make rules regarding the consequences of tampering with or refusing to wear a monitoring device referred to in section 57.1;
  • (n) prescribing the effect that a visitor’s refusal to undergo a search can have on the visitor’s right to visit an inmate or remain at the penitentiary;
  • (o) respecting
    • (i) the submission of reports referred to in section 67, and
    • (ii) the return or forfeiture of items seized under section 65 or subsection 66(2) or otherwise in possession of the Service;
  • (p) authorizing the institutional head — or a staff member designated by him or her — to, in the prescribed circumstances, restrict or prohibit the entry into and removal from a penitentiary and the use by inmates of publications, video and audio materials, films and computer programs;
  • (q) providing for inmates’ moneys to be held in trust accounts;
  • (r) respecting inmates’ work and working conditions;
  • (s) respecting penitentiary industry, including regulations authorizing the Minister to establish advisory boards and appoint members to them and regulations providing for the remuneration of those members at rates determined by the Treasury Board and for the reimbursement of any travel and living expenses that are consistent with directives of the Treasury Board and are incurred by those members in performing their duties while away from their ordinary place of residence;
  • (t) respecting the conducting of businesses by inmates;
  • (u) prescribing an offender grievance procedure;
  • (v) for the organization, training, discipline, efficiency, administration and good management of the Service;
  • (w) providing for inmates’ access to
    • (i) legal counsel and legal reading materials,
    • (ii) non-legal reading materials, and
    • (iii) a commissioner for taking oaths and affidavits;
  • (x) respecting inmates’ attendance at judicial proceedings;
  • (y) respecting the procedure to be followed on the death of an inmate, including the circumstances in which the Service may pay transportation, funeral, cremation or burial expenses for a deceased inmate;
  • (z) prescribing the procedure governing the disposal of the effects of an escaped inmate;
  • (z.1) for the delivery of the estate of a deceased inmate to the inmate’s personal representative in accordance with the applicable provincial law;
  • (z.1.1) prescribing the sources of income from which a deduction may be made pursuant to paragraph 78(2)(a) or in respect of which a payment may be required pursuant to paragraph 78(2)(b);
  • (z.2) prescribing the purposes for which deductions may be made pursuant to paragraph 78(2)(a) and prescribing the amount or maximum amount of any deduction, which regulations may authorize the Commissioner to fix the amount or maximum amount of any deduction by Commissioner’s Directive;
  • (z.2.1) providing for the means of collecting the amount referred to in paragraph 78(2)(b) , whether by transferring to Her Majesty moneys held in trust accounts established pursuant to paragraph 96(q) or otherwise, and authorizing the Commissioner to fix, by percentage or otherwise, that amount by Commissioner’s Directive, and respecting the circumstances under which payment of that amount is not required;
  • (z.3) providing for remuneration and travel and living expenses of members of committees established pursuant to subsection 82(1);
  • (z.4) for the involvement of members of the community in the operation of the Service;
  • (z.5) prescribing procedures to be followed after the use of force by a staff member;
  • (z.6) respecting the assignment to inmates of security classifications and subclassifications under section 30 and setting out the factors to be considered in determining the security classification and subclassification;
  • (z.7) authorizing the institutional head — or a staff member designated by him or her — to, in the prescribed circumstances, monitor, intercept or prevent communications between an inmate and another person;
  • (z.8) respecting escorted temporary absences — including the circumstances in which the releasing authority may authorize an absence under section 17 — and work releases;
  • (z.9) respecting the manner and form of making requests to the Commissioner under section 26 and respecting how those requests are to be dealt with;
  • (z.10) imposing obligations or prohibitions on the Service for the purpose of giving effect to any provision of this Part;
  • (z.11) prescribing anything that by this Part is to be prescribed; and
  • (z.12) generally for carrying out the purposes and provisions of this Part.

1992, c. 20, s. 96; 1995, c. 42, ss. 25, 72(F); 2012, c. 1, s. 69; 2014, c. 36, s. 2(F).

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R v. Courchesne (1984), 18 C.C.C. (3d) 275 (Que.C.A.) — Under s29 of the Penitentiary Act the Governor in Council had the power to adopt regulations and it was implicit in the Act that violation of such a regulation constituted an offence. The Governor in Council could not delegate his power to make regulations to the Commissioner. While the Commissioner had the power to make rules, breach of such rules did not constitute an offence under the Act. In this case, while s41(1) of the Penitentiary Service Regulations prohibited the receiving of contraband from an inmate, contraband was defined in s2 of the regulations only as "anything that an inmate is not permitted to have in his possession". Hence, while there was a Commissioner's directive that prohibited the accused correctional officer from bringing a package of cigarettes inside the penitentiary for a inmate, and the accused knew about such a directive, the offence itself could not be based on the directive.

Bissonnette v. Canada (Commissioner of Corrections) (1996), 122 F.T.R. 166, [1996] F.C.J. No.1388 (F.C.T.D.) — This was an application for judicial review of the decision of September 5, 1996 of the respondent Warden, refusing his approval for the utilization of moneys from the Inmate Welfare Fund for the purpose of paying legal fees in another application for judicial review. In an April 1990 memorandum, the Commissioner interprets the relevant CD by asserting that moneys from the Inmate Welfare Fund cannot be utilized for the purpose of funding legal actions. Legal counsel for the CSC relied on this memorandum when she advised a colleague in January 1996 that it was not "legal under CSC policy for court challenges to be funded out of the Inmate Welfare Fund - with or without inmate consent." This legal advice was used to explain the Warden's refusal to authorize the use of the Inmate Welfare Fund for legal fees in this case. The court found that the policy objective of the Inmate Welfare Fund is broad. In the words of the CD, the fund exists for the purpose of contributing to the inmates' general welfare within the institution. In allowing the application, the court held that CD must be read and implemented within the framework of the CCRA and Regulations. In this case, the request to use the Inmate Welfare Fund must be considered by the Warden within the context of the CSC's obligation to ensure that every inmate has reasonable access to legal counsel as set out in section 96(w) of the Regulations. The assertion by the Commissioner in his memorandum of April 30, 1990 that "monies from the Inmate Welfare Fund cannot be utilized for the purpose of legal actions" is, at the very least, too broad as a blanket statement in light of the current Regulations. Similarly, there is no indication in the memorandum prepared by the CSC's legal counsel in January 1996 that any consideration was given to subsection 97(3) of the Regulations in formulating her opinion that the Inmate Welfare Fund could not be used to pay legal fees for this court challenge.

Crawshaw v. Canada (Deputy Commissioner of Corrections) (1996), 125 F.T.R. 247, [1996] F.C.J. No.1553 (F.C.T.D.) — An inmate was denied access by the CSC to a publication entitled the Prison News Service to which he subscribed. He filed a complaint and claimed violation of his rights under section 2(b) of the Charter. In response to his complaint, the inmate was advised that the denial of access was sanctioned by a Commissioner's directive which permitted such action where, as it was deemed in this case, the information contained in the periodical was inciteful and advocated the creation of adversarial climates in the correctional setting that were counter-productive to an inmate's rehabilitation. The CSC did not deny that its actions constituted a breach of the inmate's 2(b) rights under the Charter. Rather, they argued that those rights were subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" pursuant to section 1 of the Charter. In allowing the inmate's application, the court cited past case authority and held that pursuant to section 1 of the Charter, a person's Charter rights may only be subjected to a reasonable limit that is prescribed by law. A limit has the "force of law" if it is expressed or implied in a statute or regulation. By contrast, a CD does not have the "force of law," that is to say, a limitation that is prescribed in a CD is not "prescribed by law." The court recognized that the authority cited for the proposition that CDs are not "law" predates the enactment of the CCRA and more particularly sections 97 and 98 of that Act. However, the court was not satisfied that sections 97 and 98 of the CCRA in any way modify the status of CDs for the purpose of section 1 the Charter.

Nelson v. Canada (Commissioner of Corrections) (1996), 112 F.T.R. 265, [1996] F.C.J. No.590 (F.C.T.D.) — Based on the definition of the word "intercept", which, according to the Shorter Oxford English Dictionary (3rd Edition), is "to prevent, check, stop, hinder," the court held that section 96(z.7) of the Act, which allows "monitoring and interception" of communications, can be interpreted to include "prevention." Thus, the court found that Regulation 95(1), which allows the institutional head to prevent an inmate from communicating with a person by mail or telephone if certain conditions are present, was within the regulation making power granted under section 96 of the Act.

Laliberté v. Canada (Correctional Service) (2000), 181 F.T.R. 276, [2000] F.C.J. No.548 (F.C.T.D.) — Although the meaning of the word "visiting" has not been given, Parliament in s2 has defined the meaning of the word "visitor" as excluding other inmates and staff members. Since this definition is included in the Act it follows, by legislative hierarchy that the same definition applies to regulations adopted under the power conferred through s96 of the Act as well as to administrative directives adopted for the internal administration of penitentiaries.

Rules

Rules

97. Subject to this Part and the regulations, the Commissioner may make rules

  • (a) for the management of the Service;
  • (b) for the matters described in section 4; and
  • (c) generally for carrying out the purposes and provisions of this Part and the regulations.

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Crawshaw v. Canada (Deputy Commissioner of Corrections) (1996), 125 F.T.R. 247, [1996] F.C.J. No.1553 (F.C.T.D.) — A CD does not have the "force of law," that is to say, a limitation that is prescribed in a CD is not "prescribed by law." The court recognized that the authority cited for the proposition that CDs are not "law" predates the enactment of the CCRA and more particularly sections 97 and 98 of that Act. However, the court was not satisfied that sections 97 and 98 of the CCRA in any way modify the status of CDs for the purpose of section 1 of the Charter.

Hunter v. Canada (Commissioner of Corrections) (1997), 9 C.R. (5th) 120, 134 F.T.R. 81, [1997] 3 F.C. 936, [1997] F.C.J. No.959 (F.C.T.D.) [affirmed 163 D.L.R. (4th) 383 (F.C.A.)] — The specific provisions of a Commissioner's Directive granting the CSC the ability to restrict inmate calls to pre-authorized lists and providing voice-over measures were within the ambit of the discretion given by subsection 71(1) of the CCRA in conjunction with its corresponding provisions in the Regulations, and sections 97 and 98 of the Act. Arbitrariness was not evident in the manner in which the limits were prescribed. There was no disruption in the chain of statutory authority flowing from the Act and the Regulations to the limits within the specific CD in question. The limits within the CD were "prescribed by law."

Miller v. Canada [1999] F.C.J. No.477 (F.C.T.D.), 1999 CanLII 7943 (F.C.) — Commissioner's Directives are rules made by the Commissioner under section 97 of the CCRA, that have been designated as directives under section 98. These rules are for the management of the Service and generally for carrying out the purposes and provisions of the Act and Regulations. The Directives must be made available to the public, staff, and inmates.

Commissioner’s Directives

Commissioner’s Directives

98. (1) The Commissioner may designate as Commissioner's Directives any or all rules made under section 97.

Accessibility

(2) The Commissioner's Directives shall be accessible to offenders, staff members and the public.

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[Cross Reference"Commissioner's Directives" in Placement and Transfer of Inmates section]

R v. Beaver Creek Correctional Camp (Institutional Head) ex p. MacCaud (1969), 1 C.C.C. 371, 2 D.L.R. (3d) 545, 5 C.R.N.S. 317 (Ont.C.A.) — The power to make Regulations was granted, pursuant to section 29(1) of the Penitentiary Act, to the Governor in Council and was denied to the Commissioner whose rule-making power was restricted to the making of rules known as Commissioner's Directives. Such directives did not confer statutory rights on an inmate affected by them in the way that a Regulation made by the Governor in Council would, and must be considered to be merely part of the administrative process for which the Commissioner was responsible. The duty of a staff member, including the institutional head, to adhere to the Commissioner's Directives was a duty owed to the staff member's superior and not to an inmate. Non-observance of a directive did not affect the otherwise proper exercise of authority by an institutional head.

Kelly v. Canada (Solicitor General) (1992), 51 F.T.R. 319, [1992] F.C.J. No.138 (F.C.T.D.) — The court dismissed an application of an inmate who sought an order of mandamus against the CSC to command them to get on with the promulgation of a new, reformed and revised Commissioner's Directive that may have granted him an opportunity to participate in a family visiting program. The court was of the opinion that there was no evidence before it of circumstances giving rise to a lawful duty upon the CSC to produce within a specific timeframe a new CD. Nor was there any evidence of the CSC being bloody-minded, obtuse, obstreperous, malicious or lax in any duty owed to the inmate.

Crawshaw v. Canada (Deputy Commissioner of Corrections) (1996), 125 F.T.R. 247, [1996] F.C.J. No.1553 (F.C.T.D.) — A CD does not have the "force of law," that is to say, a limitation that is prescribed in a CD is not "prescribed by law." The court recognized that the authority cited for the proposition that CDs are not "law" predates the enactment of the CCRA and more particularly sections 97 and 98 of that Act. However, the court was not satisfied that sections 97 and 98 of the CCRA in any way modify the status of CDs for the purpose of section 1 of the Charter.

Hunter v. Canada (Commissioner of Corrections) (1997), 9 C.R. (5th) 120, 134 F.T.R. 81, [1997] 3 F.C. 936, [1997] F.C.J. No.959 (F.C.T.D.) [affirmed 163 D.L.R. (4th) 383 (F.C.A.)] — The specific provisions of a Commissioner's Directive granting the CSC the ability to restrict inmate calls to pre-authorized lists and providing voice-over measures were within the ambit of the discretion given by subsection 71(1) of the CCRA in conjunction with its corresponding provisions in the Regulations, and sections 97 and 98 of the Act. Arbitrariness was not evident in the manner in which the limits were prescribed. There was no disruption in the chain of statutory authority flowing from the Act and the Regulations to the limits within the specific CD in question. The limits within the CD were "prescribed by law."

Miller v. Canada [1999] F.C.J. No.477 (F.C.T.D.), 1999 CanLII 7943 (F.C.) — Commissioner's Directives are rules made by the Commissioner under section 97 of the CCRA, that have been designated as directives under section 98. These rules are for the management of the Service and generally for carrying out the purposes and provisions of the Act and Regulations. The Directives must be made available to the public, staff, and inmates.

PART II
CONDITIONAL RELEASE, DETENTION AND LONG-TERM SUPERVISION

Interpretation

Definitions

99.(1) In this Part,

Board means the Parole Board of Canada continued by section 103 and includes a provincial parole board where it exercises jurisdiction in respect of parole as provided by section 112 or in respect of which any other provision of this Part is, by virtue of section 113, rendered applicable; (Commission)

Commissioner has the same meaning as in Part I; (commissaire)

community-based residential facility has the same meaning as in subsection 66(3); (établissement résidentiel communautaire)

day parole means the authority granted to an offender by the Board or a provincial parole board to be at large during the offender’s sentence in order to prepare the offender for full parole or statutory release, the conditions of which require the offender to return to a penitentiary, community-based residential facility, provincial correctional facility or other location each night or at another specified interval; (semi-liberté)

full parole means the authority granted to an offender by the Board or a provincial parole board to be at large during the offender’s sentence; (libération conditionnelle totale)

Version anglaise seulement

institutional head has the same meaning as in Part I; (Version anglaise seulement)

long-term supervision has the same meaning as in Part I; (surveillance de longue durée)

Minister has the same meaning as in Part I; (ministre)

offender means

  • (a) a person, other than a young person within the meaning of the Youth Criminal Justice Act, who is under a sentence imposed before or after the coming into force of this section
    • (i) pursuant to an Act of Parliament or, to the extent that this Part applies, pursuant to a provincial Act, or
    • (ii) on conviction for criminal or civil contempt of court if the sentence does not include a requirement that the offender return to that court, or
  • (b) a young person within the meaning of the Youth Criminal Justice Act with respect to whom an order, committal or direction under section 76, 89, 92 or 93 of that Act has been made,

but does not include a person whose only sentence is a sentence being served intermittently pursuant to section 732 of the Criminal Code; (délinquant)

parole means full parole or day parole; (libération conditionnelle)

parole supervisor has the meaning assigned by the definition staff member in subsection 2(1) or means a person entrusted by the Service with the guidance and supervision of an offender; (surveillant de liberté conditionnelle)

penitentiary has the same meaning as in Part I; (pénitencier)

provincial parole board means the Ontario Board of Parole, la Commission québécoise des libérations conditionnelles, the Board of Parole for the Province of British Columbia or any other parole board established by the legislature or the lieutenant governor in council of a province; (commission provinciale)

regulations means regulations made by the Governor in Council pursuant to section 156; (règlement ou réglementaire)

sentence has the same meaning as in Part I; (peine ou peine d’emprisonnement)

serious harm means severe physical injury or severe psychological damage; (dommage grave)

Service has the same meaning as in Part I; (Service)

statutory release means release from imprisonment subject to supervision before the expiration of an offender’s sentence, to which an offender is entitled under section 127; (libération d’office)

statutory release date means the date determined in accordance with section 127; (date de libération d’office)

unescorted temporary absence means an unescorted temporary absence from penitentiary authorized under section 116; (permission de sortir sans escorte)

victim has the same meaning as in Part I; (victime)

working day has the same meaning as in Part I. (jour ouvrable)

References to expiration of sentence

(2) For the purposes of this Part, a reference to the expiration according to law of the sentence of an offender shall be read as a reference to the day on which the sentence expires, without taking into account

  • (a) any period during which the offender could be entitled to statutory release;
  • (b) in the case of a youth sentence imposed under the Youth Criminal Justice Act, the portion to be served under supervision in the community subject to conditions under paragraph 42(2)(n) of that Act or under conditional supervision under paragraph 42(2)(o), (q) or (r) of that Act; or
  • (c) any remission that stands to the credit of the offender on November 1, 1992.

Exercise of powers, etc.

(3) Except as otherwise provided by this Part or by the regulations,

  • (a) powers, duties and functions assigned to the Commissioner by or pursuant to this Part may only be exercised or performed by the Commissioner or, where the Commissioner is absent or incapacitated or where the office is vacant, by the person acting in the place of the Commissioner; and
  • (b) powers, duties and functions assigned to the institutional head by or pursuant to this Part may only be exercised or performed by the institutional head or, where the institutional head is absent or incapacitated or where the office is vacant, by the person who, at the relevant time, is in charge of the penitentiary.

1992, c. 20, s. 99; 1995, c. 22, s. 13, c. 42, ss. 26, 69(E), 70(E), 71(F);1997, c. 17, s. 17; 2002, c. 1, s. 173; 2003, c. 22, s. 155; 2012, c. 1, ss. 70, 160, 197.

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"full parole"

R. v C.A.M. [1996] 1 SCR 500 — Parole eligibility is determined under the Criminal Code and under the Corrections Act. A person serving a numerical term of incarceration under the Code becomes eligible for full parole after serving one third of the sentence or seven years. The commencement coincides with the date the sentence is imposed. In contrast, a person serving life imprisonment, other than as a minimum sentence, becomes eligible after serving seven years, calculated to commence at the date of arrest. Therefore, the Corrections Act provides that, a person sentenced to life imprisonment would be eligible for full parole before a person sentenced to a numerical term beyond twenty years. The actual granting date of full parole is not the same as the eligibility date.

"in custody"

R. v Wood (1999) , 139 CCC (3d) 468 (N.S.C.A.) — The accused applied to be released pending an appeal from conviction, pursuant to s679 of the Criminal Code. The issue was jurisdiction; whether the accused was "in custody" for the purposes of s679 release. The accused was granted day parole conditional release by the NPB. The Crown argued that he was not "in custody" while on day parole and that the Court did not have jurisdiction to amend conditions of release. The Court held that jurisdiction to release from day parole pending an appeal does rest with the Court and that a parolee is deemed to be serving the sentence while on day parole, therefore he is "in custody" for the purposes of s679.

"offender"

R. v McKenna (1994), 151 N.B.R. (2d) 236, 387 A.P.R. 236 (N.B.C.A.) — M. was convicted for contempt of Court when he refused to identify a person who sold explosives to him, at a trial for a different accused who was charged with possession of explosives with intent to endanger life. M. was sentenced to 18 months incarceration without eligibility for parole or time off for good behaviour. His appeal from conviction was dismissed but appeal from sentence was allowed and the conditions were deleted from the sentence, as they were unsanctioned, given that the parole board has exclusive jurisdiction to grant parole. The Court found that the definition of "offender" included anyone who has a sentence imposed for contempt of Court.

Smallwood v. Kent Institution [1994] BCJ No. 1361 (B.C.S.C.) — This was an application for habeas corpus due to amended legislation. The prisoner was serving a 22 year sentence, had been released on day parole, had his parole suspended and revoked and when his release date was recalculated was given no credit for remission earned prior to 1977. In consideration of the jurisprudence and the legislative framework of ss127 and 138 of the CCRA, Lysyk J. dismissed the application, finding no reason to depart from the Act. The applicant was an "offender" for the purposes of applying the Act, as "a person who is under a sentence imposed before or after the coming into force of this section (a) pursuant to an Act of Parliament..."

"parole"

Daoud v Canada (A.G.) (1997), 133 F.T.R. 266 (Fed. T.D.) — This was an application for judicial review of an accelerated parole review. The applicant was a citizen of Lebanon, convicted of drug trafficking. He was diagnosed with a brain tumour, and applied for parole to effect deportation. The application was denied due to no progress being made in rehabilitation and continued denial of guilt. The applicant appealed to the appeal division, arguing that he did not receive timely disclosure and that the decision was punishment for his denial of guilt. The appeal division affirmed the decision of the review Board. The Federal Court dismissed the application, finding that the Board properly determined that the applicant remained an undue risk and was given due consideration for parole.

"serious harm"

Driskell v Manitoba (A.G.) [1999] 11 WWR 615, 67 CCR (2d) 147, 140 Man R. (2d) 49 (Man. QB) — The reference to "serious harm" in paragraph 55 only cites the CCRA definition, namely "severe physical injury and severe psychological damage". This term is used to determine the sentences inmates are serving, demographics which are presented as evidence in this case. The comment here really adds nothing to an interpretation of "serious harm", other than the exact language of the CCRA.

"statutory release"

Frankie v Canada (Commissioner of Corrections) (1993) 61 F.T.R. 274 — A paroled inmate had been suspended prior to the CCRA, but revoked after the CCRA came into force. The issue was whether earned remission was calculated into the determination of the new statutory release date. The Court considered the legislative history dating to the Ticket of Leave Act of 1952, and interpreted the CCRA to determine that, when either parole or statutory release is canceled, the rest of the sentence will be served and a new statutory release date calculated, based on the date that the parole or statutory release was suspended. The new date would be after two thirds of the remaining sentence is served.

"temporary parole"

Ex parte Kerswill (1975) 28 CCC (2d) 362 (Ont. H.C.J.)— The Parole Act did not provide for temporary parole and the Penitentiary Act provided for "temporary absence" but not temporary parole. This was an application for habeas corpus with certioria in aid. Because the conditions were different from those posted in a bulletin, the accused walked away from a supervised 3 month work project. He then got charged with robbery, convicted, and sentenced to 2 years. The applicant argued that the effect of the sentence was that it ran concurrent to that being served while on "parole". The application was dismissed. Any parole was forfeited when he was convicted of an indictable offence, pursuant to s21(1) of the Parole Act.

Application to persons subject to long-term supervision order

99.1 A person who is required to be supervised by a long-term supervision order is deemed to be an offender for the purposes of this Part, and sections 100, 101, 109 to 111 and 140 to 145 apply, with such modifications as the circumstances require, to the person and to the long-term supervision of that person.

1997, c. 17, s. 18.

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Young persons

99.2 In this Part, a young person within the meaning of the Youth Criminal Justice Act with respect to whom a committal or direction under section 89, 92 or 93 of that Act has been made begins to serve his or her sentence on the day on which the sentence comes into force in accordance with subsection 42(12) of that Act.

2002, c. 1, s. 174.

Judicial Consideration —

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R. v Payne (2001) 41 C.R. (5th) 156 (Ont. S.C.J.) — The accused was sentenced to 5 and 1/2 years imprisonment and a long-term supervision order of 10 years. A dangerous offender application was dismissed. The Court found that a long term supervision order was appropriate where the accused is one-step from being sentenced to an indeterminate sentence. A long term supervision order is not the same as conventional parole or probation. The jurisdiction to set conditions of long term supervision rests with the NPB at the time of release. The protection of society is the dominant consideration. The threshold is the current likelihood of causing future harm, beyond a reasonable doubt, with consideration of whether there is a reasonable possibility of eventual control in the community and of the "treatability" of the accused. Pursuant to s743.6 of the Criminal Code, the parole eligibility is increased to one half of the sentence. There was medical evidence in this case that the accused would not be deterred or rehabilitated within the usual eligibility period. The Court can, and did, make recommendations to the NPB.

R. v Blair (2002) 2002 BCCA 205 (B.C.C.A.) — The accused was convicted of sexual assault, appealed the conviction, appeal dismissed. Dangerous offender application was dismissed. Appeal from sentence also dismissed. The sentence was 7 years imprisonment with a 10 year supervision order. The accused spent 2 years in custody prior to being sentenced, therefore the total sentence exceeded the maximum penalty for sexual assault, which is 10 years. Under s718.2(c) of the Criminal Code, combined sentences should not be unduly harsh. The Court found that, while a supervision order is not a consecutive sentence, those principles apply. The long term offender provisions require that the trial judge impose a supervision order where the Crown establishes beyond a reasonable doubt that there is a substantial risk of reoffence. An assessment of the risk of reoffence is at the root of determining an appropriate period of supervision. Factors to consider include the circumstances of the offence. Also, the Supreme Court can reduce the period of supervision on application and the NPB can set conditions it deems appropriate. The Court did not interfere with the supervision order.
NOTE: dissent would have reduced supervision order to 5 years.

Purpose and Principles

Purpose of conditional release

100. The purpose of conditional release is to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens.

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Paramount consideration

100.1 The protection of society is the paramount consideration for the Board and the provincial parole boards in the determination of all cases.

2012, c. 1, s. 71.

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Principles guiding parole boards

101. The principles that guide the Board and the provincial parole boards in achieving the purpose of conditional release are as follows:

  • (a) parole boards take into consideration all relevant available information, including the stated reasons and recommendations of the sentencing judge, the nature and gravity of the offence, the degree of responsibility of the offender, information from the trial or sentencing process and information obtained from victims, offenders and other components of the criminal justice system, including assessments provided by correctional authorities;
  • (b) parole boards enhance their effectiveness and openness through the timely exchange of relevant information with victims, offenders and other components of the criminal justice system and through communication about their policies and programs to victims, offenders and the general public;
  • (c) parole boards make decisions that are consistent with the protection of society and that are limited to only what is necessary and proportionate to the purpose of conditional release;
  • (d) parole boards adopt and are guided by appropriate policies and their members are provided with the training necessary to implement those policies; and
  • (e) offenders are provided with relevant information, reasons for decisions and access to the review of decisions in order to ensure a fair and understandable conditional release process.

1992, c. 20, s. 101; 2012, c. 1, s. 71.

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Perron v NP (1982) 9 WCB 213 FCTD — The applicant is seeking an order to quash NPB decision denying day parole, and seeking mandamus to transfer institutions and change security from maximum to medium. The applicant had shown readiness for day parole when charged with an institutional offence and later acquitted. The NPB decision relied on Commissioner of Penitentiaries conclusions, and it is alleged that the NPB is therefore using unduly fettered discretion. The Court found that it is appropriate to rely of Commissioner's conclusions to determine if an inmate is a security risk. The Board does not have an obligation to investigate inmates circumstances independently.

MacInnis v Canada (A.G.) (1986), 4 FTR 211 (FCTD) — The applicant is seeking an order to quash NPB decision denying ETA's, day parole and full parole. The applicant had "dangerous sexual offender" designation and an indeterminate sentence. Decision of NPB upheld, refusing parole on the grounds that release would depreciate seriousness of crime. The reasoning falls within the Board's duty to review, under s761(1) of the Criminal Code, "the conditions, history and circumstances of that person".

R. v Brown (1993), 83 CCC (3d) 394, 31 B.C.A.C. 59, 50 W.A.C. 59, (B.C.C.A.) — This was an appeal from a sentence to life with an order for no parole eligibility for fourteen years. The accused plead guilty to second degree murder of his wife, in an attempted murder/suicide with the children present. Other significant facts included the level of remorse and the Aboriginal status of the appellant, with a history of alcohol involvement in the family. The Court considered principles of sentencing according to the Criminal Code and to the common law, the scope of judicial discretion, and the circumstances of the offender and of the offence. Finding no circumstances to warrant an order for parole ineligibility beyond the ten year minimum, they allowed the appeal and reduced the period of ineligibility to ten years.

R. v McKenna (1994) 151 N.B.R. (2d) 236 (C.A.) — The Court does not have jurisdiction to order that a sentence for contempt be served without parole or without time off for good behaviour.

R. v Shropshire [1995] 4 SCR 227 (SCC) — The accused plead guilty to second degree murder. The offence occurred during a marijuana transaction. The accused shot the deceased 3 times without warning and turned himself in 2 days later. He showed remorse but gave no explanation for the shooting. The trial judge sentenced him to life without parole eligibility for twelve years. The Court of Appeal reduced the period of ineligibility to the statutory minimum, ten years. The Supreme Court of Canada allowed the appeal and restored the trial judge's order. Factors under s744 of the Criminal Code were considered and the Court found that the trial judge had exercised discretion correctly due to the random nature of the offence with no explanation provided. The right to silence was found to have lesser importance after a conviction than at the prosecution stage of the proceedings. The Court found that it was too high a standard to only justify extending the period of ineligibility for parole beyond the statutory minimum under "unusual circumstances". Trial judges must be free to exercise discretion, and permitting them to extend the period of ineligibility does not impinge on the function of the parole board.

Fehr v Canada (NPB) (1995) 93 FTR 161 (Fed. T.D.) — On application for judicial review, the Court declined to interfere with the Board's denial of day and full parole. The applicant was convicted to second degree murder, released on day parole, then full parole and subsequently convicted of impaired driving causing death and leaving the scene of an accident. Sentenced to six years concurrent, she was released on day parole again but suspended following two breaches of the condition not to consume alcohol, one confessed. The Board denied the application for full or day parole. The applicant argued that the Board had failed to act reasonably and that political and public pressures prejudiced the applicant at the parole hearing. The Board considered statements from the victim's family and granted status for a representative from Canadian Resource Centre for Victims of Violence to be present at the hearing. The Court found that the Board met all legislative requirements, and was presumed to be impartial. The applicant alleged infringement of Charter rights under ss 7 and s9, but the application was dismissed.

Mooring v Canada (NPB) [1996] 1 SCR 75, 104 CCC (3d) 97 — The appellant was released on mandatory supervision. He was then arrested and charged after police responded to a call, searched the vehicle he was found in with another person, and found evidence to support a charge. Proceedings were subsequently stayed because the search was found to be in violation of the Charter . The NPB revoked his parole and the appeal division affirmed that decision. The B.C. Supreme Court dismissed the application for habeas corpus. The Court of Appeal quashed the NPB decision, finding that the NPB has jurisdiction to exclude evidence where there is a Charter violation. The majority of the Supreme Court of Canada found that the NPB is not a court of competent jurisdiction to exclude evidence under s24(2) of the Charter. They found that the function of the NPB is to assess risk for the protection of society and that the assessment is based on all available information , as stated in the CCRA s101(b) , and that the function of the NPB is not to assess evidence or to perform a s24(2) analysis. The dissent found the NPB as a court of competent jurisdiction to grant a Charter remedy and to apply exclusionary principles within the flexibility of a s24(2) analysis.

Zarzour v Canada (1999) 44 WCB (2d) 43, (FCTD), (2000), 153 C.C.C. (3d) 284, 268 N.R. 235 196 F.T.R. 320 — In an action against the Crown, the trial judge found that the CSC and the NPB had unlawfully provided information about an inmate to his ex-wife, who was not a "victim" under s142(3) of the CCRA.The ex-wife provided letters to the NPB that became part of the file relied upon when considering release plans. The argument invoked Charter rights, claiming infringement of the right to liberty and protection against unusual treatment and the right to equal protection and benefit of the law. Damages were awarded and documents written by the ex-wife were deleted from the inmates file. This decision was overturned in part by the FCA who found that, although unlawful, the provision of information to the ex-wife had minimal effect on the inmate. Leave to appeal to SCC refused.

Criteria for granting parole

102. The Board or a provincial parole board may grant parole to an offender if, in its opinion,

  • (a) the offender will not, by reoffending, present an undue risk to society before the expiration according to law of the sentence the offender is serving; and
  • (b) the release of the offender will contribute to the protection of society by facilitating the reintegration of the offender into society as a law-abiding citizen.

1992, c. 20, s. 102; 1995, c. 42, s. 27(F).

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Constitution and Jurisdiction of Board

Board continued

103. The National Parole Board is continued as the Parole Board of Canada and consists of not more than 60 full-time members and a number of part-time members all of whom are appointed by the Governor in Council, on the recommendation of the Minister, to hold office during good behaviour for periods not exceeding 10 years and three years, respectively.

1992, c. 20, s. 103; 1993, c. 34, s. 57(F); 2012, c. 1, s. 73.

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Chairperson and Executive Vice-Chairperson

104. The Governor in Council shall designate one of the full-time members of the Board to be its Chairperson and, on the recommendation of the Minister, one of the full-time members to be its Executive Vice-Chairperson.

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Membership

105. (1) Members appointed to the Board shall be sufficiently diverse in their backgrounds to be able to collectively represent community values and views in the work of the Board and to inform the community with respect to unescorted temporary absence, parole and statutory release.

Part-time members

(2) A part-time member of the Board has the same powers and duties as a full-time member of the Board.

Divisions

(3) Each member of the Board other than the Chairperson and the Executive Vice-Chairperson shall be assigned to a division of the Board specified in the instrument of appointment.

Idem

(4) All members of the Board are ex officio members of every division of the Board and may, with the approval of the Chairperson, sit on a panel of any division of the Board, subject to such conditions and during such periods as are approved by the Chairperson.

Policies

(5) Members of the Board shall exercise their functions in accordance with policies adopted pursuant to subsection 151(2).

Quorum

(6) Subject to subsection 152(3), the review under this Part of any case within a particular class of cases shall be made by a panel that consists of at least the number of members of the Board specified in the regulations as the minimum number of members for relevant cases of that class.

1992, c. 20, s. 105; 1995, c. 42, s. 71(F).

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Substitute members

106. (1) In the event that a full-time member of the Board is absent or unable to act, the Governor in Council, on the recommendation of the Minister, may appoint a substitute member to act in the place of that member.

Idem

(2) A substitute member appointed pursuant to subsection (1) has all the powers and duties of a full-time member of the Board, subject to any limitation on those powers and duties that the Chairperson directs.

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Jurisdiction of Board

107. (1) Subject to this Act, the Prisons and Reformatories Act, the International Transfer of Offenders Act, the National Defence Act, the Crimes Against Humanity and War Crimes Act and the Criminal Code, the Board has exclusive jurisdiction and absolute discretion

  • (a) to grant parole to an offender;
  • (b) to terminate or to revoke the parole or statutory release of an offender, whether or not the offender is in custody under a warrant of apprehension issued as a result of the suspension of the parole or statutory release;
  • (c) to cancel a decision to grant parole to an offender, or to cancel the suspension, termination or revocation of the parole or statutory release of an offender;
  • (d) to review and to decide the case of an offender referred to it pursuant to section 129; and
  • (e) to authorize or to cancel a decision to authorize the unescorted temporary absence of an offender who is serving, in a penitentiary,
    • (i) a life sentence imposed as a minimum punishment or commuted from a sentence of death,
    • (ii) a sentence for an indeterminate period, or
    • (iii) a sentence for an offence set out in Schedule I or II.

Offences under provincial Acts

(2) The jurisdiction of the Board under subsection (1) extends to any offender sentenced to a sentence imposed under a provincial Act that is to be served in a penitentiary pursuant to section 743.1 of the Criminal Code, whether that sentence is to be served alone or concurrently with or consecutively to one or more other sentences imposed under an Act of Parliament or a provincial Act.

1992, c. 20, s. 107; 1995, c. 22, s. 13, c. 42, ss. 28(E), 70(E), 71(F); 1998, c. 35, s. 110; 2000, c. 24, s. 36; 2004, c. 21, s. 40.

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Mooring v Canada (NPB) [1996] 1 SCR 75, 104 CCC (3d) 97 — The NPB is not a Court of competent jurisdiction to grant s24 Charter remedies. Traditional rules of proof and evidence do not apply. The NPB is inquisitorial in nature. Exclusionary rules do not apply; rather, the NPB considers "all available information that is relevant", consistent with s101(b) of this Act. Section 101(a) states that the protection of society is paramount and is the guiding principle for admissibility of information. However there is a duty of fairness owed to the applicant and the information upon which the NPB acts must be reliable and persuasive. The Board, when deciding whether to exclude evidence on the basis of fairness, may consider other cases concerning s24(2) of the Charter, which are relevant but are not determinative.

R. v McKenna (1994) 151 N.B.R. (2d) 236 (C.A.) — The Court does not have jurisdiction to direct that a sentence for contempt be served without parole. An "offender", according to the s99 definitions, includes a person serving imprisonment under a sentence for contempt.

Donald v Canada (National Parole Board) (1992), 15 W.C.B. (2d) 237 (BCSC), 1992 CanLII 172 (BC S.C.) — The Court needs to exercise deference when reviewing decisions of the NPB, due to its specialization. The Court should only interfere where evidence, when viewed reasonably, could not support the NPB's findings.

Steele v Mountain Institution (Warden) (1990), 60 C.C.C. (3d) 1, [1990] 2 S.C.R. 1 385, 80 C.R. (3d) 257 — This application was for habeas corpus, to review the continued detention of a prisoner in a penitentiary, pursuant to an indeterminate sentence fourty years earlier. After repeated refusals for parole, the prisoner was finally released but the release was terminated after he infringed the conditions by drinking alcohol and breaching curfew. The NPB denied any further release. The violations in question were considered by experts to be adjustment problems and the Court found that the applicant did not present an undue risk to society. The Court found that the Board failed to exercise its jurisdiction. The applicant's release was ordered and upheld on appeal, based on a finding that the NPB had not applied the criteria of s16(1)(a) of the Parole Act. The Court found that, if the NPB erred in exercising its duty to tailor an indeterminate sentence to the circumstances of the prisoner, there would be a violation of s12 of the Charter. The procedure to determine this would be an application for judicial review rather than an application for habeas corpus.

Jurisdiction where no provincial board

108. (1) Where a provincial parole board has not been established in a province, the Board has, in respect of offenders serving sentences in a provincial correctional facility in that province, the same jurisdiction and discretion that it has in respect of offenders under paragraphs 107(1)(a) to (c) .

Offences under provincial Acts

(2) Subject to subsection (3), the jurisdiction of the Board under subsection (1) extends to any offender sentenced to a sentence imposed under a provincial Act that is to be served concurrently with or consecutively to a sentence imposed under an Act of Parliament.

Complementary legislation

*(3) Subsection (2) does not apply in a province until a day fixed by order of the Governor in Council made after the enactment of a provincial Act authorizing the Board to exercise the jurisdiction referred to in that subsection.

* Note: Subsection 108(2) applies in the Province of British Columbia as of April 19, 2007, see SI/2007-51.

Where subsection (3) does not apply

(4) This section shall be read without reference to subsection (3) with respect to any province in which subsection 14(1) of the Parole Act, as that Act read immediately before the coming into force of this section, was in force immediately before the coming into force of this section.

1992, c. 20, s. 108; 1995, c. 42, ss. 69(E), 70(E).

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Prohibition orders re vehicles, etc.

109. The Board may, on application, cancel or vary the unexpired portion of a prohibition order made under section 259 of the Criminal Code after a period of

  • (a) ten years after the commencement of the order, in the case of a prohibition for life; or
  • (b) five years after the commencement of the order, in the case of a prohibition for more than five years but less than life.

1992, c. 20, s. 109; 2006, c. 14, s. 8.

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Clemency

110. The Board shall, when so directed by the Minister, make or cause to be made any investigation or inquiry desired by the Minister in connection with any request made to the Minister for the exercise of the royal prerogative of mercy.

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Dissemination of information

111. The Board shall maintain

  • (a) a program of exchange of information with the other components of the criminal justice system; and
  • (b) a program to communicate its policies and programs to offenders, to victims of crime, to victims’ groups, to other groups and organizations with a special interest in matters dealt with under this Part, and to the general public.

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Constitution and Jurisdiction of Provincial Boards

Jurisdiction of boards

112. (1) Subject to subsection (2), a provincial parole board for a province shall exercise jurisdiction in accordance with this Part in respect of the parole of offenders serving sentences in provincial correctional facilities in that province, other than

  • (a) offenders sentenced to life imprisonment as a minimum punishment;
  • (b) offenders whose sentence has been commuted to life imprisonment; or
  • (c) offenders sentenced to detention for an indeterminate period.

Day parole jurisdiction

(2) A provincial parole board may, but is not required to, exercise its jurisdiction under this section in relation to day parole.

1992, c. 20, s. 112; 1995, c. 42, ss. 29(F), 69(E).

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Incorporation by reference

113. (1) Where a provincial parole board has been established for a province, the lieutenant governor in council of the province may, by order, declare that all or any of the provisions of this Part that do not otherwise apply in respect of provincial parole boards shall apply in respect of that provincial parole board and offenders under its jurisdiction.

Provincial regulations

(2) The lieutenant governor in council of a province may, in respect of the provincial parole board for the province and offenders under its jurisdiction, make regulations in the same manner and for the same purposes as the Governor in Council may make regulations pursuant to section 156 in respect of the Board and offenders under its jurisdiction.

1992, c. 20, s. 113; 1995, c. 42, s. 30(F).

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Turner v Burnaby Correctional Centre for Women (1994), 24 W.C.B. (2d) 250 (B.C.S.C.) — Where prisoners serve a penitentiary sentence in a Provincial institution under an agreement between the Provincial and Federal corrections services, subsection 113(2) permits the Province to make regulations, as long as those regulations do not in effect amend or repeal the Act.

Change of province of residence

114. (1) Subject to any agreement entered into pursuant to this section, an offender who is released on parole in one province and moves to another province remains under the jurisdiction of the board that granted the parole.

Federal-provincial agreements

(2) The Minister, with the approval of the Governor in Council, may enter into an agreement with the government of a province for which a provincial parole board has been established for the transfer of jurisdiction in respect of offenders who move to the province after their release by the Board on parole from a provincial correctional facility in another province for which no provincial parole board has been established.

Idem

(3) The government of a province for which a provincial parole board has been established may enter into an agreement with the Government of Canada for the transfer to the Board of jurisdiction in respect of offenders released on parole by the provincial parole board who move to a province for which no provincial parole board has been established.

Interprovincial agreements

(4) The governments of provinces may enter into agreements with one another for the transfer of jurisdiction in respect of offenders released on parole by one provincial parole board who move to the territorial jurisdiction of another provincial parole board.

Statutory release

(5) Subsections (1) to (4) apply, with such modifications as the circumstances require, in respect of offenders released on statutory release.

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Unescorted Temporary Absence

Minimum time to be served

115. (1) Subject to subsection (2), the portion of a sentence that must be served before an offender serving a sentence in a penitentiary may be released on an unescorted temporary absence is

  • (a) in the case of an offender serving a life sentence, other than an offender referred to in paragraph (a.1), the period required to be served by the offender to reach the offender’s full parole eligibility date less three years;
  • (a.1) in the case of an offender described in subsection 746.1(3) of the Criminal Code, the longer of
    • (i) the period that expires when all but one fifth of the period of imprisonment the offender is to serve without eligibility for parole has been served, and
    • (ii) the period required to be served by the offender to reach the offender’s full parole eligibility date, determined in accordance with subsection 120.2(2), less three years;
  • (b) in the case of an offender serving a sentence for an indeterminate period, other than an offender referred to in paragraph (b.1), the longer of
    • (i) the period required to be served by the offender to reach the offender’s full parole eligibility date, determined in accordance with section 761 of the Criminal Code, less three years, and
    • (ii) the period required to be served by the offender to reach the offender’s full parole eligibility date, determined in accordance with subsection 120.2(2), less three years;
  • (b.1) in the case of an offender serving a sentence for an indeterminate period as of the date on which this paragraph comes into force, the longer of
    • (i) three years, and
    • (ii) the period required to be served by the offender to reach the offender’s full parole eligibility date, determined in accordance with subsection 120.2(2), less three years; and
  • (c) in any other case, the longer of
    • (i) six months, and
    • (ii) one half of the period required to be served by the offender to reach their full parole eligibility date.

Exceptions

(2) Subsection (1) does not apply to an offender whose life or health is in danger and for whom an unescorted temporary absence is required in order to administer emergency medical treatment.

Maximum security

(3) Offenders who, pursuant to subsection 30(1) and the regulations made under paragraph 96(z.6) , are classified as maximum security offenders are not eligible for an unescorted temporary absence.

1992, c. 20, s. 115; 1995, c. 42, ss. 31, 71(F); 1997, c. 17, s. 19; 2012, c. 1, s. 74.

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Conditions for authorization

116. (1) The Board may authorize the unescorted temporary absence of an offender referred to in paragraph 107(1)(e) where, in the opinion of the Board,

  • (a) the offender will not, by reoffending, present an undue risk to society during the absence;
  • (b) it is desirable for the offender to be absent from penitentiary for medical, administrative, community service, family contact, personal development for rehabilitative purposes, or compassionate reasons, including parental responsibilities;
  • (c) the offender’s behaviour while under sentence does not preclude authorizing the absence; and
  • (d) a structured plan for the absence has been prepared.

Idem

(2) The Commissioner or the institutional head may authorize the unescorted temporary absence of an offender, other than an offender referred to in paragraph 107(1)(e), where, in the opinion of the Commissioner or the institutional head, as the case may be, the criteria set out in paragraphs (1)(a) to (d) are met.

Medical reasons

(3) An unescorted temporary absence for medical reasons may be authorized for an unlimited period.

Personal development or community service

(4) Subject to subsection (6), an unescorted temporary absence for reasons of community service or personal development may be authorized for a maximum of fifteen days, at the rate of not more than three times a year for an offender classified by the Service as a medium security offender and not more than four times a year for an offender classified as a minimum security offender.

Intervals

(5) An unescorted temporary absence authorized for reasons referred to in subsection (4) must be followed by a period of custody of at least seven days before the next such absence.

Exception

(6) An unescorted temporary absence for purposes of a specific personal development program may be authorized for a maximum of sixty days and may be renewed, for periods of up to sixty days each, for the purposes of the program.

Absences for other reasons

(7) Unescorted temporary absences for reasons other than those referred to in subsection (3) or (4) may be authorized for a maximum total of forty-eight hours per month for an offender classified by the Service as a medium security offender, and for a maximum total of seventy-two hours per month for an offender classified as a minimum security offender.

Regulations

(8) The circumstances and manner in which, and the time at which, an application for an unescorted temporary absence must be made shall be prescribed by the regulations.

Travel time

(9) In addition to the period authorized for the purposes of an unescorted temporary absence, an offender may be granted the time necessary to travel to and from the place where the absence is authorized to be spent.

Cancellation of absence

(10) The Board, the Commissioner or the institutional head, whichever authorized a particular unescorted temporary absence of an offender, may cancel that absence, either before or after its commencement,

  • (a) where the cancellation is considered necessary and reasonable to prevent a breach of a condition of the absence or where such a breach has occurred;
  • (b) where the grounds for granting the absence have changed or no longer exist; or
  • (c) after a review of the offender’s case based on information that could not reasonably have been provided when the absence was authorized.

1992, c. 20, s. 116; 1993, c. 34, s. 58(F);1995, c. 42, ss. 32(F), 71(F).

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Delegation to Commissioner

117. (1) The Board may confer on the Commissioner or the institutional head, for such period and subject to such conditions as it specifies, any of its powers under section 116 in respect of any class of offenders or class of absences.

Delegation to provincial hospital

(2) Where, pursuant to an agreement under paragraph 16(1)(a), an offender referred to in paragraph 107(1)(e) or subsection 116(2) has been admitted to a hospital operated by a provincial government in which the liberty of persons is normally subject to restrictions, the Board, the Commissioner or the institutional head, as the case may be, may confer on the person in charge of the hospital, for such period and subject to such conditions as they specify, any of their respective powers under section 116 in relation to that offender.

Suspension by institutional head

(3) Where the Board has not authorized the Commissioner or the institutional head under subsection (1) in respect of the offender or in respect of the absence, the institutional head of the penitentiary from which an unescorted temporary absence has been effected may suspend the absence if, in the opinion of the institutional head, the offender’s retention in custody or recommitment to custody is justified in order to protect society, on the basis of information that could not reasonably have been provided to the Board when the absence was authorized.

Referral of suspension to Board

(4) An institutional head who suspends the unescorted temporary absence of an offender shall forthwith refer the offender’s case to the Board, and the Board shall decide whether the absence should be cancelled.

1992, c. 20, s. 117; 1995, c. 42, s. 71(F).

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Warrant for arrest and recommittal

118. A person who cancels an unescorted temporary absence pursuant to subsection 116(10) or pursuant to a delegation of power under subsection 117(1) or (2), or who suspends an unescorted temporary absence pursuant to subsection 117(3), shall cause a warrant in writing to be issued authorizing the apprehension and recommitment to custody of the offender pursuant to section 137, where the offender is not in custody in a penitentiary or in a hospital referred to in subsection 117(2).

1992, c. 20, s. 118; 1995, c. 42, s. 71(F).

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Eligibility for Parole

Time when eligible for day parole

119. (1) Subject to section 746.1 of the Criminal Code, subsection 226.1(2) of the National Defence Act and subsection 15(2) of the Crimes Against Humanity and War Crimes Act, the portion of a sentence that must be served before an offender may be released on day parole is

  • (a) one year, where the offender was, before October 15, 1977, sentenced to preventive detention;
  • (b) where the offender is an offender, other than an offender referred to in paragraph (b.1), who was sentenced to detention in a penitentiary for an indeterminate period, the longer of
    • (i) the period required to be served by the offender to reach the offender’s full parole eligibility date, determined in accordance with section 761 of the Criminal Code, less three years, and
    • (ii) the period required to be served by the offender to reach the offender’s full parole eligibility date, determined in accordance with subsection 120.2(2), less three years;
  • (b.1) where the offender was sentenced to detention in a penitentiary for an indeterminate period as of the date on which this paragraph comes into force, the longer of
    • (i) three years, and
    • (ii) the period required to be served by the offender to reach the offender’s full parole eligibility date, determined in accordance with subsection 120.2(2), less three years;
  • (c) where the offender is serving a sentence of two years or more, other than a sentence referred to in paragraph (a) or (b), the greater of
    • (i) the portion ending six months before the date on which full parole may be granted, and
    • (ii) six months; or
  • (d) one half of the portion of the sentence that must be served before full parole may be granted, where the offender is serving a sentence of less than two years.

Time when eligible for day parole

(1.1) Notwithstanding section 746.1 of the Criminal Code, subsection 226.1(2) of the National Defence Act and subsection 15(2) of the Crimes Against Humanity and War Crimes Act, an offender described in subsection 746.1(1) or (2) of the Criminal Code or to whom those subsections apply pursuant to subsection 226.1(2) of the National Defence Act or subsection 15(2) of the Crimes Against Humanity and War Crimes Act, shall not, in the circumstances described in subsection 120.2(2) or (3), be released on day parole until three years before the day that is determined in accordance with subsection 120.2(2) or (3).

When eligible for day parole — young offender sentenced to life imprisonment

(1.2) Notwithstanding section 746.1 of the Criminal Code, subsection 226.1(2) of the National Defence Act and subsection 15(2) of the Crimes Against Humanity and War Crimes Act, in the circumstances described in subsection 120.2(2), the portion of the sentence of an offender described in subsection 746.1(3) of the Criminal Code or to whom that subsection applies pursuant to subsection 226.1(2) of the National Defence Act or subsection 15(2) of the Crimes Against Humanity and War Crimes Act that must be served before the offender may be released on day parole is the longer of

  • (a) the period that expires when all but one fifth of the period of imprisonment the offender is to serve without eligibility for parole has been served, and
  • (b) the portion of the sentence that must be served before full parole may be granted to the offender, determined in accordance with subsection 120.2(2), less three years.

Short sentences

(2) The Board is not required to review the case of an offender who applies for day parole if the offender is serving a sentence of less than six months.

1992, c. 20, s. 119; 1995, c. 22, ss. 13, 18, c. 42, ss. 33, 69(E); 1997, c. 17, s. 20; 1998, c. 35, s. 111; 2000, c. 24, s. 37; 2013, c. 24, s. 127.

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Corresponding Regulations: Sections 157 Day Parole Review

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Definition of “sentence”

119.1 For the purposes of sections 119.2 to 120.3, and unless the context requires otherwise, “sentence” means a sentence that is not constituted under subsection 139(1).

1997, c. 17, s. 21; 2011, c. 11, s. 3; 2012, c. 1, s. 75.

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Youth sentence

119.2 For the purposes of sections 120 to 120.3, the eligibility for parole of a young person in respect of whom a youth sentence is imposed under paragraph 42(2)(n), (o), (q) or (r) of the Youth Criminal Justice Act and who is transferred to a provincial correctional facility for adults or a penitentiary under section 89, 92 or 93 of that Act shall be determined on the basis of the total of the custody and supervision periods of the youth sentence.

2012, c. 1, s. 75.

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Time when eligible for full parole

120. (1) Subject to sections 746.1 and 761 of the Criminal Code and to any order made under section 743.6 of that Act, to subsection 226.1(2) of the National Defence Act and to any order made under section 226.2 of that Act, and to subsection 15(2) of the Crimes Against Humanity and War Crimes Act, an offender is not eligible for full parole until the day on which the offender has served a period of ineligibility of the lesser of one third of the sentence and seven years.

Life sentence

(2) Subject to any order made under section 743.6 of the Criminal Code or section 226.2 of the National Defence Act, an offender who is serving a life sentence, imposed otherwise than as a minimum punishment, is not eligible for full parole until the day on which the offender has served a period of ineligibility of seven years less any time spent in custody between the day on which the offender was arrested and taken into custody, in respect of the offence for which the sentence was imposed, and the day on which the sentence was imposed.

1992, c. 20, s. 120; 1995, c. 22, s. 13, c. 42, s.34; 1998, c. 35, s. 112; 2000, c. 24, s. 38; 2013, c. 24, ss. 126, 128.

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Multiple sentences on same day

120.1 (1) A person who is not serving a sentence and who receives more than one sentence on the same day is not eligible for full parole until the day on which they have served a period equal to the total of

One or more additional consecutive sentences

(2) If an offender who is serving a sentence, or is serving a sentence that was constituted under subsection 139(1), receives an additional sentence that is to be served consecutively to the sentence they are serving when the additional sentence is imposed — or receives, on the same day, two or more additional sentences to be served consecutively and the additional sentences are to be served consecutively to the sentence they are serving when the additional sentences are imposed — the offender is not eligible for full parole until the day on which they have served, from the day on which the additional sentence is or sentences are imposed, the total of the following periods:

  • (a) any remaining period of ineligibility in respect of the sentence they are serving when the additional sentence is or sentences are imposed, and
  • (b) the period of ineligibility in respect of the additional sentence or, in the case of two or more additional sentences, a period equal to the total of the periods of ineligibility in respect of all of the additional sentences.

Additional sentence to be served consecutively to portion of sentence

(3) Despite subsection (2), if an offender who is serving a sentence or a sentence that was constituted under subsection 139(1) receives an additional sentence or two or more sentences that are to be served consecutively to a portion of the sentence they are serving when the additional sentence is imposed — or receives, on the same day, two or more additional sentences including a sentence to be served concurrently with the sentence being served and one or more sentences to be served consecutively to the additional concurrent sentence — they are not eligible for full parole until the day on which they have served, from the day on which the additional sentence is or sentences are imposed, any remaining period of ineligibility to which they are subject and the longer of the following periods:

  • (a) one third of the period that equals the difference between the length of the sentence that was constituted under subsection 139(1), including the additional sentence or sentences, and the length of the sentence that they are serving when the additional sentence is or sentences are imposed; or
  • (b) the period of ineligibility of the additional sentence that is or sentences that are ordered to be served consecutively.

1995, c. 42, s. 34; 1997, c. 17, s. 22(F); 2012, c. 1, s. 76; 2013, c. 24, s. 133.

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Additional concurrent sentence

120.2 (1) Subject to subsection (2), if an offender who is serving a sentence, or is serving a sentence that was constituted under subsection 139(1), receives an additional sentence that is to be served concurrently with the sentence they are serving when the additional sentence is imposed, they are not eligible for full parole until the day that is the later of

  • (a) the day on which they have served the period of ineligibility in respect of the sentence they are serving when the additional sentence is imposed, and
  • (b) the day on which they have served

One or more sentences in addition to life sentence

(2) If an offender who is serving a life sentence or a sentence for an indeterminate period receives a sentence for a determinate period — or receives, on the same day, two or more sentences for a determinate period — they are not eligible for full parole until the day on which they have served, from the day on which the additional sentence is or sentences are imposed, the total of the following periods:

  • (a) any remaining period of ineligibility to which they are subject, and
  • (b) the period of ineligibility in respect of the additional sentence or, in the case of two or more additional sentences, the period of ineligibility — determined in accordance with subsection (1) or section 120.1, as the case may be — in respect of the additional sentences.

Reduction of period of ineligibility for parole

(3) If there has been a reduction — under section 745.6 of the Criminal Code, subsection 226.1(2) of the National Defence Act or subsection 15(2) of the Crimes Against Humanity and War Crimes Act — in the number of years of imprisonment without eligibility for parole of an offender referred to in subsection (2), the offender is not eligible for full parole until the day on which they have served, from the day on which the additional sentence is or sentences are imposed, the total of the following periods:

  • (a) any remaining period of ineligibility to which they would have been subject after taking into account the reduction, and
  • (b) the period of ineligibility in respect of the additional sentence or, in the case of two or more additional sentences, the period of ineligibility — determined in accordance with subsection (1) or section 120.1, as the case may be — in respect of the additional sentences.

1995, c. 22, s. 18, c. 42, s. 34; 1997, c. 17, s. 23(F); 1998, c. 35, s. 113; 2000, c. 24, s. 39; 2012, c. 1, s. 76; 2013, c. 24, ss. 127, 128.

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Maximum period

120.3 Subject to section 745 of the Criminal Code, subsection 226.1(1) of the National Defence Act and subsection 15(1) of the Crimes Against Humanity and War Crimes Act, the day on which an offender is eligible for full parole shall not be later than

  • (a) in the case of a person who is not serving a sentence and receives more than one sentence on the same day, the day on which they have served 15 years from the day on which the sentences are imposed;
  • (b) in the case of an offender who is serving a sentence — or is serving a sentence that was constituted under subsection 139(1) — and who receives an additional sentence that changes the day on which they are eligible for parole, the day on which they have served 15 years from the day on which the additional sentence is imposed; and
  • (c) in the case of an offender who is serving a sentence — or is serving a sentence that was constituted under subsection 139(1) — and who receives, on the same day, two or more additional sentences that change the day on which they are eligible for parole, the day on which they have served 15 years from the day on which the additional sentences are imposed.

1995, c. 22, s. 18, c. 42, s. 34; 1998, c. 35, s. 114; 2000, c. 24, s. 40; 2012, c. 1, s. 76; 2013, c. 24, s. 127.

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Exceptional cases

121. (1) Subject to section 102 — and despite sections 119 to 120.3 of this Act, sections 746.1 and 761 of the Criminal Code, subsection 226.1(2) of the National Defence Act and subsection 15(2) of the Crimes Against Humanity and War Crimes Act and any order made under section 743.6 of the Criminal Code or section 226.2 of the National Defence Act — parole may be granted at any time to an offender

  • (a) who is terminally ill;
  • (b) whose physical or mental health is likely to suffer serious damage if the offender continues to be held in confinement;
  • (c) for whom continued confinement would constitute an excessive hardship that was not reasonably foreseeable at the time the offender was sentenced; or
  • (d) who is the subject of an order of surrender under the Extradition Act and who is to be detained until surrendered.

Exceptions

(2) Paragraphs (1)(b) to (d) do not apply to an offender who is

  • (a) serving a life sentence imposed as a minimum punishment or commuted from a sentence of death; or
  • (b) serving, in a penitentiary, a sentence for an indeterminate period.

1992, c. 20, s. 121; 1995, c. 22, s. 13, c. 42, s. 35; 1998, c. 35, s. 115; 1999, c. 18, s. 86; 2012, c. 1, s. 77; 2013, c. 24, ss. 128, 133.

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Hutchins v Canada (National ParoleBoard) [1993] 3 F.C. 505, 83 C.C.C. (3d) 563, 156 N.R. 205 (C.A.) — Pursuant to the former s11(1)(e) of the Parole Act, the prisoner lost the right to parole by exception for the purpose of deportation, because he did not have a hearing prior to the Parole Act R.S.C. 1985 c P-2 and its Regulations being repealed. The majority (2:1) held that, despite his being liable to deportation, and although he had taken necessary steps toward a deportation order, this prisoner did not have an accruing right under s43(c) of the Interpretation Act and therefore was subject to this Act, which does not provide for parole by exception for deportation.

United States of America v McCallister (1994), 63 Q.A.C. 68 (C.A.) -leave to SCC refused, Oct. 10, 1994 — Subsection 121(1)(d) provides for parole to someone serving a sentence in Canada and under an order of the Extradition Act, but the Minister of Justice can order a surrender of the fugitive before the sentence is up, pursuant to s25 of the Extradition Act.

Parole Reviews

Day parole review

122. (1) 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).

Special cases

(2) 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.

Decision or adjournment

(3) 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 reasonable period not exceeding the maximum period prescribed by the regulations.

No application for one year

(4) No application for day parole may be made until one year after the date of the Board’s decision — or until any earlier time that the regulations prescribe or the Board determines — if, following a review, the Board does not grant day parole or cancels or terminates parole.

Maximum duration

(5) 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.

Withdrawal of application

(6) An offender may not withdraw an application for day parole within 14 days before the commencement of the review unless the withdrawal is necessary and it was not possible to withdraw it earlier due to circumstances beyond their control.

1992, c. 20, s. 122; 1995, c. 42, ss. 36(F), 69(E); 2012, c. 1, s. 78.

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Immigration Issues

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)

Immigration Act

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.

Standards of review

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.

Full parole review

123. (1) The Board shall, within the period prescribed by the regulations and for the purpose of deciding whether to grant full parole, review 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.

Waiver of review

(2) The Board is not required under subsection (1), (5) or (5.1) to review the case of an offender who has advised the Board in writing that they do not wish to be considered for full parole and who has not in writing revoked that advice.

Review by Board

(3) 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.

Short sentences

(3.1) 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.

Decision or adjournment

(4) 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.

Further review — Board does not grant parole

(5) If the Board decides not to grant parole following a review under subsection (1) or section 122 or if a review is not made by virtue of subsection (2), the Board shall conduct another review within two years after the later of the day on which the review took place or was scheduled to take place and thereafter within two years after that day until

  • (a) the offender is released on full parole or on statutory release;
  • (b) the offender’s sentence expires; or
  • (c) less than four months remain to be served before the offender’s statutory release date.

Violent offender

(5.01) Despite subsection (5), if the Board decides not to grant parole to an offender who has been convicted of an offence involving violence for which the offender is serving a sentence of at least two years — or a sentence that includes a sentence of at least two years for an offence involving violence — following a review under subsection (1) or section 122, or if a review is not made by virtue of subsection (2), the Board shall conduct another review within five years after the later of the day on which the review took place or was scheduled to take place and thereafter within five years after that day until

  • (a) the offender is released on full parole or on statutory release;
  • (b) the offender’s sentence expires; or
  • (c) less than four months remain to be served before the offender’s statutory release date.

Written reasons

(5.02) If the Board decides not to grant parole to an offender referred to in subsection (5.01), it shall provide the offender with written reasons for its decision.

Further review — Board terminates or cancels parole

(5.1) If the Board cancels or terminates parole, it shall conduct another review within two years after the cancellation or termination and, after that date, within two years after the day on which each preceding review takes place until

  • (a) the offender is released on full parole or statutory release;
  • (b) the offender’s sentence expires; or
  • (c) less than four months remain to be served before the offender’s statutory release date.

Violent offender

(5.2) Despite subsection (5.1), if the Board cancels or terminates parole for an offender who has been convicted of an offence involving violence for which the offender is serving a sentence of at least two years — or a sentence that includes a sentence of at least two years for an offence involving violence — the Board shall conduct another review within four years after the date of cancellation or termination and, after that date, within five years after the day on which each preceding review takes place until

  • (a) the offender is released on full parole or on statutory release;
  • (b) the offender’s sentence expires; or
  • (c) less than four months remain to be served before the offender’s statutory release date.

No application for one year

(6) No application for full parole may be made until one year after the date of the Board’s decision — or until any earlier time that the regulations prescribe or the Board determines — if, following a review, the Board does not grant full parole or cancels or terminates parole.

Withdrawal of application

(7) An offender may not withdraw an application for full parole within 14 days before the commencement of the review unless the withdrawal is necessary and it was not possible to withdraw it earlier due to circumstances beyond their control.

Definition of “offence involving violence”

(8) In this section, “offence involving violence” means murder or any offence set out in Schedule I.

1992, c. 20, s. 123; 1995, c. 42, ss. 37, 69(E); 2012, c. 1, s. 79; 2015, c. 11, s. 2.

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Discretion of the board

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.

Habeas corpus remedy for parolees and candidates for parole

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.

Urine sample positive or not provided

123.1 If an offender has been granted parole under section 122 or 123 but has not yet been released and the offender fails or refuses to provide a urine sample when demanded to provide one under section 54, or provides under that section a urine sample for which the result of the urinalysis is positive, as that term is defined in the regulations, then the Service shall inform the Board of the failure or refusal or the test result.

2015, c. 30, s. 2.

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Offenders unlawfully at large

124. (1) The Board is not required to review the case of an offender who is unlawfully at large during the period prescribed by the regulations for a review under section 122 or 123 but it shall review the case as soon as possible after being informed of the offender’s return to custody.

Timing of release

(2) 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.

Cancellation of parole

(3) If an offender has been granted parole under section 122 or 123, 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.

Cancellation of parole — drug test

(3) If the Board is informed of the matters under section 123.1 and the offender has still not yet been released, the Board shall can- cel the parole if, in its opinion, based on the information received under that section, the criteria set out in paragraphs 102(a) and (b) are no longer met.

Review

(4) If the Board exercises its power under subsection (3), it shall, within the period prescribed by the regulations, review its decision and either confirm or cancel it.

1992, c. 20, s. 124; 1995, c. 42, s. 38; 2011, c. 11, s. 4; 2012, c. 1, s. 80, c. 19, s. 526; 2015, c. 30, s.

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125. [Repealed, 2011, c. 11, s. 5]

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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. [Repealed, 2011, c. 11, s. 5]

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126.1 [Repealed, 2011, c. 11, s. 5]

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Statutory Release

Entitlement

127. (1) Subject to any provision of this Act, an offender sentenced, committed or transferred to penitentiary is entitled to be released on the date determined in accordance with this section and to remain at large until the expiration of the sentence according to law.

Sentence for past offences

(2) Subject to this section, the statutory release date of an offender sentenced before November 1, 1992 to imprisonment for one or more offences shall be determined by crediting against the sentence

  • (a) any remission, statutory or earned, standing to the offender’s credit on that day; and
  • (b) the maximum remission that could have been earned on the balance of the sentence pursuant to the Penitentiary Act or the Prisons and Reformatories Act, as those Acts read immediately before that day.

Sentence for future offences

(3) Subject to this section, the statutory release date of an offender sentenced on or after November 1, 1992 to imprisonment for one or more offences is the day on which the offender completes two thirds of the sentence.

Sentences for past and future offences

(4) Subject to this section, the statutory release date of an offender sentenced before November 1, 1992 to imprisonment for one or more offences and sentenced on or after November 1, 1992 to imprisonment for one or more offences is the later of the dates determined in accordance with subsections (2) and (3).

If parole or statutory release revoked

(5) Subject to subsections 130(4) and (6), the statutory release date of an offender whose parole or statutory release is revoked is

  • (a) the day on which they have served two thirds of the unexpired portion of the sentence after being recommitted to custody as a result of a suspension or revocation under section 135; or
  • (b) if an additional sentence is imposed after the offender is recommitted to custody as a result of a suspension or revocation under section 135, the day on which they have served two thirds of the portion of the sentence — including the additional sentence — that begins on the day on which they are recommitted and ends on the day on which the sentence expires.

If additional sentence

(5.1) If an offender receives an additional sentence for an offence under an Act of Parliament and their parole or statutory release is not revoked, their statutory release date is the day on which they have served, from the earlier of the day on which they are recommitted to custody as a result of the suspension of their parole or statutory release and the day on which they are recommitted to custody as a result of the additional sentence,

  • (a) any time remaining before the statutory release date in respect of the sentence they are serving when the additional sentence is imposed; and
  • (b) two thirds of the period that equals the difference between the length of the sentence that includes the additional sentence and the length of the sentence that they are serving when the additional sentence is imposed.

Failure to earn and forfeiture of remission

(6) Where an offender receives a sentence to be served in a provincial correctional facility and fails to earn or forfeits any remission under the Prisons and Reformatories Act and is transferred to penitentiary, otherwise than pursuant to an agreement entered into under paragraph 16(1)(b) , the offender is not entitled to be released until the day on which the offender has served

  • (a) the period of imprisonment that the offender would have been required to serve under this section if the offender had not failed to earn or had not forfeited the remission; and
  • (b) the period of imprisonment equal to the remission that the offender failed to earn or forfeited and that was not recredited under that Act.

Supervision after release

(7) An offender sentenced, committed or transferred (otherwise than pursuant to an agreement entered into under subsection 16(1)) to penitentiary on or after August 1, 1970 who is released on statutory release is subject to supervision in accordance with this Act, but no other offender released under this section is subject to supervision.

1992, c. 20, s. 127; 1995, c. 42, s. 41; 1999, c. 31, s. 66(E); 2012, c. 1, s. 81.

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Cunningham v Canada [1993] 2 S.C.R. 143, 80 C.C.C. (3d) 492 — This prisoner had been sentenced when, under the Parole Act, he was automatically entitled to be released on mandatory supervision if found to be of good behaviour, after serving two-thirds of his sentence. The Parole Act was then amended to allow the NPB to deny release under certain circumstances. The court found that the liberty interest under s7 of the Charter was adversely affected by this change, and that the fact of incarceration did not preclude a further infringement on liberty. The change in the nature of the sentence, once the NPB denied release, was found to be significant and worthy of s7 Charter protection, but the amendment was saved by s1 of the Charter and found to be in accordance with principles of fundamental justice.

Frankie v. Canada (Commissioner of Corrections) (1993), 82 C.C.C. (3d) 160, 22 C.R. (4th) 213, [1993] 3 F.C. 3 (C.A.) — A different formula to that provided by subsection (2) is used to determine a release date for prisoners who do not fall under this subsection, whose earned remission cannot be carried over at the time of parole revocation.

Smallwood v. Kent Institution (1994), 24 W.C.B. (2d) 34 (BCSC), 1994 CanLII 2913 (BC S.C.) — Where day parole was granted prior to this Act, but suspended and then revoked following this Act, eligibility for statutory release is subject to s126(5) and s138(2) . Two-thirds of the portion of the sentence that has not expired upon being put into custody again must be served before one is eligible for statutory release.

Ahern v. Ferndale Institution (1995), 26 W.C.B. (2d) 557 (B.C.S.C.), 1995 CanLII 1758 (BC S.C.) — An application for habeas corpus with certiorari in aid in support of the claim that the correct calculation of statutory release would allow for immediate release was held to be moot when the date of judgment would be delivered only after release of the applicant on parole. The Court found that any new determination of a release date, should it become necessary, would not be dependent on the statutory interpretation sought in this claim.

Youth Criminal Justice Act

127.1 Subject to this Act, a young person in respect of whom a youth sentence is imposed under paragraph 42(2)(n), (o), (q) or (r) of the Youth Criminal Justice Act and who is transferred to a penitentiary under subsection 89(2), 92(2) or 93(2) of that Act is entitled to be released from the penitentiary by virtue of statutory release on the day on which the custodial portion of their youth sentence would have expired.

2012, c. 1, s. 82.

Effect of Parole, Statutory Release or Unescorted Temporary Absence

Continuation of sentence

128. (1) An offender who is released on parole, statutory release or unescorted temporary absence continues, while entitled to be at large, to serve the sentence until its expiration according to law.

Freedom to be at large

(2) Except to the extent required by the conditions of any day parole, an offender who is released on parole, statutory release or unescorted temporary absence is entitled, subject to this Part, to remain at large in accordance with the conditions of the parole, statutory release or unescorted temporary absence and is not liable to be returned to custody by reason of the sentence unless the parole, statutory release or unescorted temporary absence is suspended, cancelled, terminated or revoked.

Sentence deemed to be completed

(3) Despite subsection (1), for the purposes of paragraph 50(b) of the Immigration and Refugee Protection Act and section 64 of the Extradition Act, the sentence of an offender who has been released on parole, statutory release or an unescorted temporary absence is deemed to be completed unless the parole or statutory release has been suspended, terminated or revoked, the unescorted temporary absence is suspended or cancelled or the offender has returned to Canada before the expiration of the sentence according to law.

Removal order

(4) Despite this Act, the Prisons and Reformatories Act and the Criminal Code, an offender against whom a removal order has been made under the Immigration and Refugee Protection Act is not eligible for day parole or an unescorted temporary absence until they are eligible for full parole.

Parole inoperative where parole eligibility date in future

(5) If, before the full parole eligibility date, a removal order is made under the Immigration and Refugee Protection Act against an offender who has received day parole or an unescorted temporary absence, on the day that the removal order is made, the day parole or unescorted temporary absence becomes inoperative and the offender shall be reincarcerated.

Exception

(6) An offender referred to in subsection (4) is eligible for day parole or an unescorted temporary absence if the removal order is stayed under paragraph 50(a), 66(b) or 114(1)(b) of the Immigration and Refugee Protection Act.

Exception

(7) Where the removal order of an offender referred to in subsection (5) is stayed under paragraph 50(a), 66(b) or 114(1)(b) of the Immigration and Refugee Protection Act on a day prior to the full parole eligibility of the offender, the unescorted temporary absence or day parole of that offender is resumed as of the day of the stay.

1992, c. 20, s. 128; 1995, c. 42, ss. 42, 69(E), 71(F); 1999, c. 18, s. 87; 2001, c. 27, s. 242; 2012, c. 1, s. 83.

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Detention during Period of Statutory Release

Review of cases by service

129. (1) 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.

Referral of cases to Board

(2) The Service shall, more than six months before the day on which an offender is entitled to be released on statutory release, refer the case to the Board — and provide the Board with any information that, in the Service’s opinion, is relevant to the case — if the Service is of the opinion that

  • (a) in the case of an offender who is serving a sentence that includes a sentence for an offence set out in Schedule I, including an offence set out in Schedule I that is punishable under section 130 of the National Defence Act,
    • (i) 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
    • (ii) 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 or an offence causing death or serious harm to another person before the expiration of the offender’s sentence according to law; or
  • (b) in the case of an offender who is serving a sentence that includes a sentence for an offence set out in Schedule II, including an offence set out in Schedule II that is punishable under section 130 of the National Defence Act, 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.

Referral of cases to Chairperson of Board

(3) If the Commissioner believes on reasonable grounds that an offender 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 practicable after forming that belief. The referral must be made more than six months before the offender’s statutory release date unless

  • (a) the Commissioner formed that belief on the basis of the offender’s behaviour or information obtained during those six months; or
  • (b) as a result of a change in the statutory release date due to a recalculation, the statutory release date has passed or the offender is entitled to be released on statutory release during those six months.

Detention pending referral

(3.1) 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.

Request for information by Board

(4) 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).

Deadlines for review by Board

(5) 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

  • (a) 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;
  • (b) if the case is referred to the Chairperson during the four weeks preceding that date but more than three days before that date,
    • (i) review the case pursuant to subsection 130(1) before that date, if possible, or
    • (ii) make an interim review of the case before that date; or
  • (c) if the case is
    • (i) referred to the Chairperson on the statutory release date or during the three days preceding that date, or
    • (ii) 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.

Interim review

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

Decision to review

(7) 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.

Delegation to provincial authorities

(8) 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.

Definitions

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

serious drug offence means an offence set out in Schedule II; (infraction grave en matière de drogue)

sexual offence involving a child means

  • (a) an offence under any of the following provisions of the Criminal Code that was prosecuted by way of indictment, namely,
    • (i) section 151 (sexual interference),
    • (ii) section 152 (invitation to sexual touching),
    • (iii) section 153 (sexual exploitation),
    • (iv) subsection 160(3) (bestiality in presence of child or inciting child to commit bestiality),
    • (iv.1) section 163.1 (child pornography),
    • (v) section 170 (parent or guardian procuring sexual activity by child),
    • (vi) section 171 (householder permitting sexual activity by child),
    • (vii) section 172 (corrupting children),
    • (vii.1) section 172.1 (luring a child),
    • (viii) section 279.011 (trafficking — person under 18 years),
    • (ix) subsection 279.02(2) (material benefit — trafficking of person under 18 years),
    • (x) subsection 279.03(2) (withholding or destroying documents — trafficking of person under 18 years),
    • (xi) subsection 286.1(2) (obtaining sexual services for consideration from person under 18 years),
    • (xii) subsection 286.2(2) (material benefit from sexual services provided by person under 18 years), and
    • (xiii) subsection 286.3(2) (procuring — person under 18 years);
  • (b) 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,
    • (i) section 155 (incest),
    • (ii) section 159 (anal intercourse),
    • (iii) subsections 160(1) and (2) (bestiality and compelling bestiality),
    • (iv) section 271 (sexual assault),
    • (v) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm), and
    • (vi) section 273 (aggravated sexual assault);
  • (b.1) an offence under any of the following provisions of the Criminal Code, as they read from time to time before the day on which this paragraph comes into force, that was prosecuted by way of indictment:
    • (i) subsection 212(2) (living on the avails of prostitution of person under 18 years), and
    • (ii) subsection 212(4) (prostitution of person under 18 years);
  • (c) 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,
    • (i) section 146 (sexual intercourse with a female under 14),
    • (ii) section 151 (seduction of a female between 16 and 18), and
    • (iii) section 167 (householder permitting defilement);
  • (d) 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,
  • (e) 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,

Determination of likelihood of offence

(10) 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; 2012, c. 1, s. 84; 2014, c. 25, s. 41.

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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.

Review by Board of cases referred

130. (1) 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,

  • (a) inform the offender of the referral and review, and
  • (b) review the case,

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

Detention pending review

(2) 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.

Decision of Board

(3) 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

  • (a) 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,
  • (b) 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,
  • (c) 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.

When order takes effect

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

Effect of order where additional sentence

(3.2) 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,

  • (a) 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
  • (b) 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.

Board’s powers on review

(3.3) The Board shall, on completing a review under paragraph (3.2)(a)

  • (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
  • (b) 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).

Detention pending review

(3.4) 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.

Special order by Board

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

  • (a) 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
  • (b) 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.

Temporary absence with escort

(5) 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, except on a temporary absence with escort under Part I for medical or administrative reasons.

Where order for release revoked

(6) 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; 2012, c. 1, s. 85.

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Editorial note from Martin's

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.

Procedures generally

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.) — 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.

Effect of the Charter

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.

Habeas Corpus as a remedy

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, (1994), 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.

Annual review of orders

131. (1) 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.

Schedule I offence

(1.1) Despite subsection (1), if the order made under subsection 130(3) relates to an offender who is serving a sentence imposed for an offence set out in Schedule I whose commission caused the death of or serious harm to another person, the Board shall review the order within two years after the date the order was made, and thereafter within two years after the date of each preceding review while the offender remains subject to the order.

Board to inquire

(2) 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.

Board’s powers on review

(3) The Board, on completing a review under subsection (1), shall

  • (a) with respect to an order made under subsection 130(3) or paragraph 130(3.3)(b) ,
    • (i) confirm the order,
    • (ii) 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
    • (iii) order the statutory release of the offender without such a residence requirement; or
  • (b) with respect to an order made under subparagraph (3)(a)(ii),
    • (i) confirm or modify the order, or
    • (ii) order the statutory release of the offender without such a residence requirement.

Consent of Commissioner

(4) 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.

Designation

(5) 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; 2015, c. 11, s. 3.

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Relevant factors in detention reviews

132. (1) 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) a pattern of persistent violent behaviour established on the basis of any evidence, in particular,
    • (i) the number of offences committed by the offender causing physical or psychological harm,
    • (ii) the seriousness of the offence for which the sentence is being served,
    • (iii) 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,
    • (iv) the use of a weapon in the commission of any offence by the offender,
    • (v) explicit threats of violence made by the offender,
    • (vi) behaviour of a brutal nature associated with the commission of any offence by the offender, and
    • (vii) a substantial degree of indifference on the part of the offender as to the consequences to other persons of the offender’s behaviour;
  • (b) medical, psychiatric or psychological evidence of such likelihood owing to a physical or mental illness or disorder of the offender;
  • (c) 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
  • (d) 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.

Idem

(1.1) 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) a pattern of persistent sexual behaviour involving children established on the basis of any evidence, in particular,
    • (i) the number of sexual offences involving a child committed by the offender,
    • (ii) the seriousness of the offence for which the sentence is being served,
    • (iii) reliable information demonstrating that the offender has had difficulties controlling sexual impulses involving children,
    • (iv) behaviour of a sexual nature associated with the commission of any offence by the offender, and
    • (v) a substantial degree of indifference on the part of the offender as to the consequences to other persons of the offender’s behaviour;
  • (b) 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;
  • (c) 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;
  • (d) reliable information compelling the conclusion that the offender is planning to commit such an offence; and
  • (e) 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.

Idem

(2) 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) a pattern of persistent involvement in drug-related crime established on the basis of any evidence, in particular,
    • (i) the number of drug-related offences committed by the offender,
    • (ii) the seriousness of the offence for which the sentence is being served,
    • (iii) the type and quantity of drugs involved in any offence committed by the offender,
    • (iv) reliable information demonstrating that the offender remains involved in drug-related activities, and
    • (v) a substantial degree of indifference on the part of the offender as to the consequences to other persons of the offender’s behaviour;
  • (b) medical, psychiatric or psychological evidence of such likelihood owing to a physical or mental illness or disorder of the offender;
  • (c) 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
  • (d) 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.

Judicial Consideration —

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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.

Conditions of Release

Definition of “releasing authority”

133. (1) In this section, “releasing authority” means

  • (a) the Board, in respect of
    • (i) parole,
    • (ii) statutory release, or
    • (iii) unescorted temporary absences authorized by the Board under subsection 116(1);
  • (b) the Commissioner, in respect of unescorted temporary absences authorized by the Commissioner under subsection 116(2); or
  • (c) the institutional head, in respect of unescorted temporary absences authorized by the institutional head under subsection 116(2).

Conditions of release

(2) Subject to subsection (6), every offender released on parole, statutory release or unescorted temporary absence is subject to the conditions prescribed by the regulations.

Conditions set by releasing authority

(3) The releasing authority may impose any conditions on the parole, statutory release or unescorted temporary absence of an offender that it considers reasonable and necessary in order to protect society and to facilitate the offender’s successful reintegration into society. For greater certainty, the conditions may include any condition regarding the offender’s use of drugs or alcohol, including in cases when that use has been identified as a risk factor in the offender’s criminal behaviour.

Conditions to protect victim

(3.1) If a victim or a person referred to in subsection 26(3) or 142(3) has provided the releasing authority with a statement describing the harm done to them or loss suffered by them as a result of the commission of an offence or the continuing impact of the commission of the offence on them — including any safety concerns — or commenting on the possible release of the offender, the releasing authority shall impose any conditions on the parole, statutory release or unescorted temporary absence of the offender that it considers reasonable and necessary in order to protect the victim or the person, including a condition that the offender abstain from having any contact, including communication by any means, with the victim or the person or from going to any specified place.

Written reasons

(3.2) If a statement referred to in subsection (3.1) has been provided to the releasing authority and the releasing authority decides not to impose any conditions under that subsection, it shall provide written reasons for the decision.

For greater certainty

(3.3) For greater certainty, if no statement has been provided to the releasing authority, nothing in subsection (3.1) precludes the releasing authority from imposing any condition under subsection (3).

Residence requirement

(4) Where, in the opinion of the releasing authority, the circumstances of the case so justify, the releasing authority may require an offender, as a condition of parole or unescorted temporary absence, to reside in a community-based residential facility.

Residence requirement

(4.1) In order to facilitate the successful reintegration into society of an offender, the releasing authority may, as a condition of statutory release, require that the offender reside in a community-based residential facility or a psychiatric facility if the releasing authority is satisfied that, in the absence of such a condition, the offender will present an undue risk to society by committing, before the expiration of their sentence according to law, an offence set out in Schedule I or an offence under section 467.11, 467.12 or 467.13 of the Criminal Code.

Definition of “community-based residential facility”

(4.2) In subsection (4.1), “community-based residential facility” includes a community correctional centre but does not include any other penitentiary.

Not necessary to determine particular offence

(4.3) For the purposes of subsection (4.1), the releasing authority is not required to determine whether the offender is likely to commit any particular offence.

Consent of commissioner

(4.4) A condition under subsection (4.1) that an offender reside in a community correctional centre is valid only if consented to in writing by the Commissioner or a person designated, by name or by position, by the Commissioner.

Duration of conditions

(5) A condition imposed pursuant to subsection (3), (4) or (4.1) is valid for such period as the releasing authority specifies.

Relief from conditions

(6) The releasing authority may, in accordance with the regulations, before or after the release of an offender,

  • (a) in respect of conditions referred to in subsection (2), relieve the offender from compliance with any such condition or vary the application to the offender of any such condition; or
  • (b) in respect of conditions imposed under subsection (3), (4) or (4.1), remove or vary any such condition.

Obligation — removal or variance of condition

(7) Before removing or varying any condition imposed under subsection (3.1) on an offender, the releasing authority shall take reasonable steps to inform every victim or person that provided it with a statement referred to in that subsection in relation to that offender of its intention to remove or vary the condition and it shall consider their concerns, if any.

1992, c. 20, s. 133; 1995, c. 42, ss. 48, 71(F); 1997, c. 17, s. 28; 2012, c. 1, s. 86; 2014, c. 21, s. 5; 2015, c. 13, s. 59, c. 30, s. 4.

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S.(M.) v Mountain Institution (1997), 151 W.A.C. 288 (BCCA) — This section provides the Board with a broad discretion to place conditions on a release order.

Instructions to released offenders

134. (1) An offender who has been released on parole, statutory release or unescorted temporary absence shall comply with any instructions given by a member of the Board or a person designated, by name or by position, by the Chairperson of the Board or the Commissioner, or given by the institutional head or by the offender’s parole supervisor, respecting any conditions of parole, statutory release or unescorted temporary absence in order to prevent a breach of any condition or to protect society.

(2) [Repealed, 2012, c. 1, s. 87]

1992, c. 20, s. 134; 1995, c. 42, s. 71(F); 1997, c. 17, s. 29; 2012, c. 1, s. 87.

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Corresponding Regulations: Sections 161-162 Conditions of Release

Judicial Consideration —

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R. v Gibb (1998), 131 C.C.C. (3d) 253 (Sask. CA), 1998 CanLII 12394 (SK C.A.) — The principle against self-incrimination does not apply when an accused person who is at large and in breach of terms and conditions of release is being questioned by the parole officer about activities while on an unescorted temporary absence.

Conditions for Long-Term Supervision

Conditions for long-term supervision

134.1 (1) Subject to subsection (4), every offender who is required to be supervised by a long-term supervision order is subject to the conditions prescribed by subsection 161(1) of the Corrections and Conditional Release Regulations, with such modifications as the circumstances require.

Conditions set by Board

(2) The Board may establish conditions for the long-term supervision of the offender that it considers reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender.

Conditions to protect victim

(2.1) If a victim, or a person referred to in subsection 142(3), has provided the Board with a statement describing the harm, property damage or loss suffered by them, as the result of the commission of an offence and its continuing impact on them — including any safety concerns — the Board shall impose any conditions on the long-term supervision of the offender that it considers reasonable and necessary to protect the victim or the person, including a condition that the offender abstain from having any contact, including communication by any means, with the victim or the person or from going to any specified place.

Written reasons

(2.2) If a statement referred to in subsection (2.1) has been provided to the Board and it decides not to impose any conditions under that subsection, it shall provide written reasons for its decision.

For greater certainty

(2.3) For greater certainty, if no statement has been provided to the Board, nothing in subsection (2.1) precludes the Board from imposing any condition under subsection (2).

Duration of conditions

(3) A condition imposed under subsection (2) is valid for the period that the Board specifies.

Relief from conditions

(4) The Board may, in accordance with the regulations, at any time during the long-term supervision of an offender,

  • (a) in respect of conditions referred to in subsection (1), relieve the offender from compliance with any such condition or vary the application to the offender of any such condition; or
  • (b) in respect of conditions imposed under subsection (2) or (2.1), remove or vary any such condition.

Obligation — removal or variance of condition

(5) Before removing or varying any condition imposed under subsection (2.1) on an offender, the Board shall take reasonable steps to inform every victim or person who provided it with a statement referred to in that subsection in relation to that offender of its intention to remove or vary the condition and it shall consider their concerns, if any.

1997, c. 17, s. 30; 2015, c. 13, s. 48.

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Instructions to offenders subject to long-term supervision order

134.2 (1) An offender who is supervised pursuant to a long-term supervision order shall comply with any instructions given by a member of the Board or a person designated, by name or by position, by the Chairperson of the Board or by the Commissioner, or given by the offender’s parole supervisor, respecting any conditions of long-term supervision in order to prevent a breach of any condition or to protect society.

(2) [Repealed, 2012, c. 1, s. 88]

1997, c. 17, s. 30; 2012, c. 1, s. 88.

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Suspension, Termination, Revocation and Inoperativeness of Parole, Statutory Release or Long-Term Supervision

Suspension of parole or statutory release

135. (1) A member of the Board or a person, designated by name or by position, by the Chairperson of the Board or by the Commissioner, when an offender breaches a condition of parole or statutory release or when the member or person is satisfied that it is necessary and reasonable to suspend the parole or statutory release in order to prevent a breach of any condition thereof or to protect society, may, by warrant,

  • (a) suspend the parole or statutory release;
  • (b) authorize the apprehension of the offender; and
  • (c) authorize the recommitment of the offender to custody until the suspension is cancelled, the parole or statutory release is terminated or revoked or the sentence of the offender has expired according to law.

Automatic suspension of parole or statutory release

(1.1) If an offender who is on parole or statutory release receives an additional sentence, other than a conditional sentence under section 742.1 of the Criminal Code that is being served in the community or an intermittent sentence under section 732 of that Act, for an offence under an Act of Parliament, their parole or statutory release, as the case may be, is suspended on the day on which the additional sentence is imposed.

Apprehension and recommitment

(1.2) If an offender’s parole or statutory release is suspended under subsection (1.1), a member of the Board or a person designated, by name or position, by the Chairperson of the Board or the Commissioner may, by warrant, authorize the offender’s apprehension and recommitment to custody until

  • (a) the suspension is cancelled;
  • (b) the parole or statutory release is terminated or revoked; or
  • (c) the sentence expires according to law.

Transfer of offender

(2) A person designated under subsection (1) may, by warrant, order the transfer to a penitentiary of an offender who is recommitted to custody under subsection (1) or (1.2) or as a result of an additional sentence referred to in subsection (1.1) in a place other than a penitentiary.

Cancellation of suspension or referral

(3) Subject to subsection (3.1), the person who signs a warrant under subsection (1) or any other person designated under that subsection shall, immediately after the recommitment of the offender, review the offender’s case and

  • (a) where the offender is serving a sentence of less than two years, cancel the suspension or refer the case to the Board together with an assessment of the case, within fourteen days after the recommitment or such shorter period as the Board directs; or
  • (b) in any other case, within thirty days after the recommitment or such shorter period as the Board directs, cancel the suspension or refer the case to the Board together with an assessment of the case stating the conditions, if any, under which the offender could in that person’s opinion reasonably be returned to parole or statutory release.

Referral to Board — additional sentence

(3.1) If an offender’s parole or statutory release is suspended under subsection (1.1), or if an offender whose parole or statutory release is suspended under subsection (1) receives an additional sentence referred to in subsection (1.1), the suspension may not be cancelled and the case is to be referred to the Board by a person designated by name or position by the Commissioner, together with an assessment of the case, within the applicable number of days set out in subsection (3).

Review by Board

(4) The Board shall, on the referral to it of the case of an offender serving a sentence of less than two years, review the case and, within the period prescribed by the regulations, either cancel the suspension or terminate or revoke the parole.

Review by Board — sentence of two years or more

(5) The Board shall, on the referral to it of the case of an offender who is serving a sentence of two years or more, review the case and — within the period prescribed by the regulations unless, at the offender’s request, the review is adjourned by the Board or is postponed by a member of the Board or by a person designated by the Chairperson by name or position —

  • (a) if the Board is satisfied that the offender will, by reoffending before the expiration of their sentence according to law, present an undue risk to society,
    • (i) terminate the parole or statutory release if the undue risk is due to circumstances beyond the offender’s control, and
    • (ii) revoke it in any other case;
  • (b) if the Board is not satisfied as in paragraph (a), cancel the suspension; and
  • (c) if the offender is no longer eligible for parole or entitled to be released on statutory release, cancel the suspension or terminate or revoke the parole or statutory release.

Terms of cancellation

(6) If in the Board’s opinion it is necessary and reasonable to do so in order to protect society or to facilitate the reintegration of the offender into society, the Board, when it cancels a suspension of the parole or statutory release of an offender, may

  • (a) reprimand the offender in order to warn the offender of the Board’s dissatisfaction with the offender’s behaviour since release;
  • (b) alter the conditions of the parole or statutory release; and
  • (c) order the cancellation not to take effect until the expiration of a specified period not exceeding thirty days after the date of the Board’s decision, where the offender violated the conditions of parole or statutory release on the occasion of the suspension and on at least one previous occasion that led to a suspension of parole or statutory release during the offender’s sentence.

Transmission of cancellation of suspension

(6.1) Where a person referred to in subsection (3) or the Board cancels a suspension under this section, the person or the Board, as the case may be, shall forward a notification of the cancellation of the suspension or an electronically transmitted copy of the notification to the person in charge of the facility in which the offender is being held.

If parole eligibility date in future

(6.2) If the Board cancels a suspension of parole under subsection (5) and the day on which the offender is eligible for parole, determined in accordance with any of sections 119 to 120.3, is later than the day on which the parole suspension is cancelled, the day or full parole is, subject to subsection (6.3), resumed on the day parole eligibility date or the full parole eligibility date, as the case may be.

Cancellation of parole — parole eligibility date in future

(6.3) If an offender’s parole is to resume under subsection (6.2), the Board may — before the parole resumes and after a review of the case based on information with which it could not reasonably have been provided at the time the parole suspension was cancelled — cancel the parole or, if the offender has been released, terminate the parole.

Review

(6.4) If the Board exercises its power under subsection (6.3), it shall, within the period prescribed by the regulations, review its decision and either confirm or cancel it.

Additional power of the Board

(7) Independently of subsections (1) to (6), where the Board is satisfied that the continued parole or statutory release of an offender would constitute an undue risk to society by reason of the offender reoffending before the expiration of the sentence according to law, the Board may, at any time,

  • (a) where the offender is no longer eligible for the parole or entitled to be released on statutory release, terminate or revoke the parole or statutory release; or
  • (b) where the offender is still eligible for the parole or entitled to be released on statutory release,
    • (i) terminate the parole or statutory release, where the undue risk to society is due to circumstances beyond the offender’s control, or
    • (ii) revoke the parole or statutory release, where the undue risk to society is due to circumstances within the offender’s control.

Power not affected by new sentence

(8) The Board may exercise its power under subsection (7) notwithstanding any new sentence to which the offender becomes subject after being released on parole or statutory release, whether or not the new sentence is in respect of an offence committed before or after the offender’s release on parole or statutory release.

Review by Board

(9)) Where the Board exercises its power under subsection (7), it shall review its decision at times prescribed by the regulations, at which times it shall either confirm or cancel its decision.

Non-application of subsection (1.1)

(9.1) Unless the lieutenant governor in council of a province in which there is a provincial parole board makes a declaration under subsection 113(1) that subsection (1.1) applies in respect of offenders under the jurisdiction of that provincial parole board, subsection (1.1) does not apply in respect of such offenders, other than an offender who

  • (a) is serving a sentence in a provincial correctional facility pursuant to an agreement entered into under paragraph 16(1)(a); or
  • (b) as a result of receiving an additional sentence referred to in subsection (1.1), is required, under section 743.1 of the Criminal Code, to serve the sentence in a penitentiary.

Parole inoperative

(9.2) If an offender to whom subsection (1.1) does not apply, and who is on parole that has not been revoked or terminated, receives an additional sentence that is to be served consecutively with the sentence the offender was serving when the additional sentence was imposed, the parole becomes inoperative and the offender shall be reincarcerated until the day on which the offender has served, from the day on which the additional sentence was imposed, the period of ineligibility in relation to the additional sentence. On that day, the parole is resumed, subject to the provisions of this Act, unless, before that day, the parole has been revoked or terminated.

(9.3) to (9.5) [Repealed, 2012, c. 1, s. 89]

Continuation of sentence

(10) For the purposes of this Part, an offender who is in custody by virtue of this section continues to serve the offender’s sentence.

Time at large during suspension

(11) For the purposes of this Act, where a suspension of parole or statutory release is cancelled, the offender is deemed, during the period beginning on the day of the issuance of the suspension and ending on the day of the cancellation of the suspension, to have been serving the sentence to which the parole or statutory release applies.

1992, c. 20, s. 135; 1995, c. 22, s. 18, c. 42, ss. 50, 69(E), 70(E); 1997, c. 17, ss. 32(F), 32.1; 2012, c. 1, s. 89, c. 19, s. 529.

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Corresponding Regulations: Sections 163 Cancellation, Suspension, Termination and Revocation of Release

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Martin v. Beaudry (1995), 197 N.R. 20 (Que. C.A.) — upheld by SCC [1996] 1 SCR 898, 197 NR 19 — The Court of Appeal dismissed the prisoner's appeal from a decision dismissing an application for habeas corpus. The Court found that the NPB did not act outside its jurisdiction when it reconsidered evidence presented at trial, even though the applicant was acquitted of the alleged charges, and although the charges were part of the cause for revocation of his conditional release. The decision of the NPB was not a defective one, and the prima facie facts did not support the remedy sought.

Kempton v. Canada (1994), 87 F.T.R. 273 (T.D.) — In a decision to terminate day parole, the NPB is not under an obligation to raise allegations that do not form part of the case that the Board seeks to have answered at the hearing. The NPB is entitled to define the case to be met, and their failure to provide material that does not form part of the case does not infringe s7 of the Charter.

Ewing v Mission Institution (1994), 92 C.C.C. (3d) 484 (B.C.C.A.) — Where an incorrect warrant of committal was issued and the prisoner was released on mandatory supervision on the basis of that warrant, then revoked as a result of conduct, the Court did not support the argument that nothing could flow from the incorrect warrant. The Court found that the warrant of committal must be considered valid until set aside and therefore the release on mandatory supervision was valid as was the loss of remission due to the failure to comply with the terms of release.

Roxborough v. Canada (National Parole Board) (1994), 80 F.T.R. 26 (T.D.) — Prior to the CCRA coming into effect, the prisoner was released on day parole, and subsequently had parole suspended and terminated under the Parole Act. A post-suspension hearing took place after the CCRA came into force. The transitional provisions did not provide for this situation and the Court found that the new legislation governed the post-suspension hearing given that it was the law in effect at the time of the hearing.

Ewing v Mission Institution (1994), 92 C.C.C. (3d) 484 (B.C.C.A.) — The Court quashed an Order of the NPB for re-credit of remission following revocation of mandatory supervision. An appeal was allowed, however, on the basis that the decision quashing the Order granted certiorari, a remedy that can only be granted by a Federal Court in respect of a decision by a Federal tribunal.

Pinhero v. Canada (National Parole Board) (1994), 24 W.C.B. (2d) 552 (B.C.C.A.) — On the same day as the decision in Ewing (supra) and by the same panel, the Court would not consider whether the Provincial Supreme Court could hear a habeas corpus application when, on the face of the warrant for committal and on the NPB finding, the prisoner was not entitled to liberty.

R. v. Cadeddu (1997), 11 C.R. (5th) 61 (Ont. Ct. Gen. Div.) — The Provincial Supreme Court found that it had jurisdiction to hear a habeas corpus application where parole had been revoked.

Morre v. Matsqui Institution (1994), 29 C.R. (4th) 353 (B.C.S.C.) — The Court found that the NPB failed to comply with s135(5) when it breached s163 of the Regulations by not issuing a decision on a suspension within 45 days. The Court found that, the argument that the hearing was adjourned by request of the prisoner had no bearing on the Board's non-compliance, as the adjournment was requested because the board had failed to provide required materials. The Court also found that it was not appropriate to detain the prisoner once loss of jurisdiction was found for the post-suspension determination.

Fraser v. Kent Institution (1997), 130 C.C.C. (3d) 393, 167 D.L.R. (4th) 457, 6 C.r. (5th) 293 (B.C.C.A.) — The Court found that the board lost jurisdiction and violated the rules of natural justice by refusing to adjourn to a date when counsel for the prisoner would be available. Subsection 135(7) could not be used to avoid the process as set out in subsections 135(1) - 135(6) .

Sager v. Canada [1997] F.C.J. No. 1745 (Fed. Ct. T.D.), 1997 CanLII 5903 (F.C.) — However, the Court held that failure to follow the process of subsections 135(1) - 135(6) does not deny the board its jurisdiction.

Lyding v. Canada (National Parole Board) (1998), 213 A.R. 323 (Q.B.), 1998 ABQB 43 (CanLII) — The Board does not have authority to delegate the power to adjourn to an employee, nor does the board have power to control its own process.

Armes v. National Parole Board (1998), 147 F.T.R. 215 (T.D.), 1998 CanLII 7906 (F.C.) — When, at the time the board considers whether or not to reincarcerate following a new charge, and there is no conviction entered, subsection (9.1) does not apply.

Woodhouse v. Elbow Lake Institution (2000), 45 W.C.B. (2d) 99 (B.C.S.C.), 2000 BCSC 78 — Subsection (9.1) only applies where, on the date of incarceration for an additional sentence, parole has not been revoked or terminated. Where parole has been revoked, and where a habeas corpus remedy is granted restoring full parole, subsection (9.1) does not apply to automatically revoke parole.

Suspension of long-term supervision

135.1 (1) A member of the Board or a person designated, by name or by position, by the Chairperson of the Board or by the Commissioner, when an offender breaches a condition of a long-term supervision order or a condition referred to in section 134.1 or when the member or person is satisfied that it is necessary and reasonable to suspend the long-term supervision in order to prevent a breach of any condition of it or to protect society, may, by warrant,

  • (a) suspend the long-term supervision;
  • (b) authorize the apprehension of the offender; and
  • (c) authorize the commitment of the offender to a community-based residential facility or a mental health facility or, where the member or person is satisfied that commitment to custody is necessary, to custody until the suspension is cancelled, new conditions for the long-term supervision have been established or the offender is charged with an offence under section 753.3 of the Criminal Code.

Limit on commitment

(2) The period of the commitment of the offender mentioned in paragraph (1)(c) must not exceed ninety days.

Where offender committed

(3) Where an offender is committed under paragraph (1)(c), the period of the commitment is included in the calculation of the period of long-term supervision ordered under a long-term supervision order, but if there is a period between the issuance of the warrant and the commitment to custody, that period is not included in that calculation.

Transfer of offender

(4) A person designated pursuant to subsection (1) may, by warrant, order the transfer to penitentiary of an offender who is committed under paragraph (1)(c) in a place other than a penitentiary.

Cancellation of suspension or referral

(5) The person who signs a warrant pursuant to subsection (1), or any other person designated pursuant to that subsection, shall, immediately after the commitment of the offender, review the offender’s case and, as soon as possible but in any case no later than thirty days after the commitment, cancel the suspension or refer the case to the Board together with an assessment of the case.

Review by Board

(6) The Board shall, on the referral to it of the case of an offender, review the case and, before the end of the period referred to in subsection (2),

  • (a) cancel the suspension, if the Board is satisfied that, in view of the offender’s behaviour while being supervised, the resumption of long-term supervision would not constitute a substantial risk to society by reason of the offender reoffending before the expiration of the period of long-term supervision; or
  • (b) [Repealed, 2012, c. 1, s. 90]
  • (c) where the Board is satisfied that no appropriate program of supervision can be established that would adequately protect society from the risk of the offender reoffending, and that it appears that a breach has occurred, recommend that an information be laid charging the offender with an offence under section 753.3 of the Criminal Code.

Laying of information

(7) Where the Board recommends that an information be laid pursuant to paragraph (6)(c), the Service shall recommend to the Attorney General who has jurisdiction in the place in which the breach of the condition occurred that an information be laid charging the offender with an offence under section 753.3 of the Criminal Code.

Terms of cancellation

(8) If in the Board’s opinion it is necessary and reasonable to do so in order to protect society or to facilitate the reintegration of the offender into society, the Board, when it cancels a suspension of the long-term supervision order of an offender, may

  • (a) reprimand the offender in order to warn the offender of the Board’s dissatisfaction with the offender’s behaviour while being supervised;
  • (b) alter the conditions of the long-term supervision; and
  • (c) order the cancellation not to take effect until the expiration of a specified period that ends on a date not later than the end of the ninety days referred to in subsection (2), in order to allow the offender to participate in a program that would help ensure that society is protected from the risk of the offender reoffending.

Transmission of cancellation of suspension

(9) Where a person referred to in subsection (4) or the Board cancels a suspension under this section, the person or the Board, as the case may be, shall forward a notification of the cancellation of the suspension or an electronically transmitted copy of the notification to the person in charge of the facility in which the offender is being held.

1997, c. 17, s. 33; 2012, c. 1, s. 90.

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Warrant for apprehension and recommitment

136. A member of the Board or a person designated, by name or position, by the Chairperson of the Board or the Commissioner may, by warrant, authorize an offender’s apprehension and recommitment to custody if

  • (a) their parole is terminated or revoked or becomes inoperative under subsection 135(9.2); or
  • (b) their statutory release is terminated or revoked or they are no longer entitled to be released on statutory release as a result of a change to their statutory release date under subsection 127(5.1).

1992, c. 20, s. 136; 1995, c. 42, s. 51; 1997, c. 17, s. 33; 2012, c. 1, s. 91.

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Execution of warrant

137. (1) A warrant of apprehension issued under section 11.1, 18, 118, 135, 135.1 or 136 or by a provincial parole board, or an electronically transmitted copy of such a warrant, shall be executed by any peace officer to whom it is given in any place in Canada as if it had been originally issued or subsequently endorsed by a justice or other lawful authority having jurisdiction in that place.

Arrest without warrant

(2) A peace officer who believes on reasonable grounds that a warrant is in force under this Part or under the authority of a provincial parole board for the apprehension of a person may arrest the person without warrant and remand the person in custody.

Where arrest made

(3) Where a person has been arrested pursuant to subsection (2), the warrant of apprehension, or an electronically transmitted copy thereof, shall be executed within forty-eight hours after the arrest is made, failing which the person shall be released.

1992, c. 20, s. 137; 1995, c. 42, s. 52; 1997, c. 17, s. 34.

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Arrest without warrant — breach of conditions

137.1 A peace officer may arrest without warrant an offender who has committed a breach of a condition of their parole, statutory release or unescorted temporary absence, or whom the peace officer finds committing such a breach, unless the peace officer

  • (a) believes on reasonable grounds that the public interest may be satisfied without arresting the person, having regard to all the circumstances including the need to
    • (i) establish the identity of the person, or
    • (ii) prevent the continuation or repetition of the breach; and
  • (b) does not believe on reasonable grounds that the person will fail to report to their parole supervisor in order to be dealt with according to law if the peace officer does not arrest the person.

2012, c. 1, s. 92.

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Serving balance of sentence

138. (1) Where the parole or statutory release of an offender is terminated or revoked, the offender shall be recommitted to custody and shall serve the portion of the sentence that remained unexpired on the day on which the parole or statutory release was terminated or revoked.

Effect of termination on parole and statutory release

(2) An offender whose parole or statutory release has been terminated is

  • (a) eligible for parole in accordance with section 120, 120.1, 120.2 or 120.3, as the case may be; and
  • (b) entitled to be released on statutory release in accordance with section 127.

No forfeiture of remission

(3) An offender whose parole or statutory release has been terminated is not liable to forfeit

Effect of revocation on parole

(4) An offender whose parole or statutory release has been revoked is eligible for parole in accordance with section 120, 120.1, 120.2 or 120.3, as the case may be.

Exception

(5) Notwithstanding sections 122 and 123, the Board is not required to conduct a review for the purpose of parole of the case of an offender referred to in subsection (4) within one year after the date on which the offender’s parole or statutory release is revoked.

Effect of revocation on statutory release

(6) Subject to subsections 130(4) and (6), an offender whose parole or statutory release has been revoked is entitled to be released on statutory release in accordance with subsection 127(5).

1992, c. 20, s. 138; 1995, c. 42, ss. 53, 70(E); 2004, c. 21, s. 40; 2012, c. 1, s. 93.

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Frankie v The Commissioner of Corrections — Unreported, February 25, 1993, No. T -21-93 (FCTD) (Butterworths No. 38297) — The applicant was relased on parole and had his parole suspended at the time when the Penitentiaty Act and the Parole Act were in force. His parole was ultimately revoked 13 days after the Corrections and Conditional Release Act ("CCRA") came into force. Generally, s127 CCRA sets out the calculation of statutory release dates. Section 138 deals with the applicant's situation, who was under suspension of parole at the time the CCRA came into effect. The applicant argued that the time described by the words "the portion of the term of imprisonment that remained unexpired on the day on which parole was ...revoked" in s138 must be calculated by excluding therefrom any earned remission standing to the inmate's credit on the day parole is revoked. The applicant argued that this interpretation applied in his situation where parole was suspended before but revoked after the CCRA came into effect. The court held that under the CCRA, when either parole or statutory release is cancelled, an inmate will be returned to custody to serve the rest of the sentence of imprisonment which was initially imposed by the court subject to the establishment of a new statutory release date. The new statutory release date is determined by calculating forward from the time the inmate was first committed to custody (ie, had his parole or statutory release suspended). In the applicant's case, his new statutory release date was determined by calculating two thirds of time remaining, starting from the date that he was taken into custody and his parole suspended and ending with the date of his imprisonment as originally imposed by the court. Two thirds of that period of time must be spent in custody before he could again be released pursuant to the statutory release provisions.

Merged Sentences

Multiple sentences

139. (1) For the purposes of the Criminal Code, the Prisons and Reformatories Act, the International Transfer of Offenders Act and this Act, a person who is subject to two or more sentences is deemed to have been sentenced to one sentence beginning on the first day of the first of those sentences to be served and ending on the last day of the last of them to be served.

Interpretation

(2) This section does not affect the time of commencement, pursuant to subsection 719(1) of the Criminal Code, of any sentences that are deemed under this section to constitute one sentence.

1992, c. 20, s. 139; 1995, c. 22, s. 18, c. 42, s. 54; 2012, c. 1, s. 95.

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R. v. Drost (1996), 104 C.C.C. (3d) 389

Ruest v Canada (Correctional Service) (1997), 186 N.B.R. (2d) 65 (C.A.) — Where a person is sentenced to two or more sentences or where a prisoner is sentenced to an additional term of imprisonment, section 92 of S.C. 1995, c.42 applies. Where a sentence is interrupted pursuant to s139(2) , that sentence resumes after the later sentence expires or after the parole or statutory release is revoked or terminated. Where parole or statutory release has been terminated or revoked, the prisoner serves the total of the unexpired portion of the sentence serving while on parole or statutory release and the unexpired portion of the new sentence.

R. v. Hendrix (1999), 137 C.C.C. (3d) 445 (Nfld. C.A.) — Where the accused is 6 months into serving a sentence of 12 months imprisonment, and receives an additional 14 month term of imprisonment, the total sentence is deemed by this section to be 26 months. Therefore, an additional term of probation cannot be imposed, pursuant to s731(1)(b) of the Criminal Code, because the accused was sentenced to a term