A Practical Guide to Correctional Law Issues | CPDonline.ca

A Practical Guide to Correctional Law Issues

Paula Puddy, HBA LLB MBA

Your client has been convicted and sentenced to a federal penitentiary. What is the process? How long will it take? What factors are considered by the parole officer when determining where your client will serve his or her sentence? Can your client object? Is habeas corpus available? When is your client eligible for parole?

Simon Borys answers these administrative questions and more in his presentation and accompanying hand-out entitled "A Practical Guide to Correctional Law Issues".

Simon explains the process in conviction.

Once convicted, inmates typically wait in a provincial prison for their transfer. This can take a few days to a few weeks depending on staffing and resources. Sometimes, Simon comments, you may be able to speed up the transfer if your client signs a waiver of appeal.

Most inmates are then transferred to a federal assessment centre for a period of 60 to 120 days. During that time, a parole officer completes the Custody Rating Scale, which helps the parole officer determine the offender’s institutional adjustment, escape risk, and public safety risk ratings. A parole officer will assign a score of low, medium, or high in each of these three domains. Based on these three ratings, the offender will be assessed as either minimum, medium, or maximum security and will begin serving their time in a corresponding prison.

There is little cause to object to the parole officer’s decision.

If your client wants to challenge the "pen" placement, you can follow an internal grievance procedure which goes to the supervisor, then the warden followed by the regional or national level. Ultimately, it could be reviewed by the Federal Court on judicial review. However it takes time and it could result in a new assessment being ordered rather than a change to the original assessment.

Typically, habeas corpus has not been available as there has been no deprivation of liberty based on the initial classification. However, Simon comments that this may be open to being revisited in light of the Supreme Court’s recent decision in Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 2.

Nor, has it been available on lateral transfers or out-of-province transfers.

Can an inmate challenge an involuntary transfer to a higher level security penitentiary?

Habeas corpus is available when an inmate is being transferred from general population to segregation, or from minimum to medium, or medium to maximum.

There are two avenues to pursue in habeas corpus applications:

1. Challenge the transfer decision based on reasonableness (an increase in one of the 3 factors used to assess the inmate’s placement: institutional adjustment, escape risk, and public safety risk)

2. Challenge the transfer decision based on procedural fairness as the failure to give the inmate a right to counsel (when required to do so), lack of information, not considered the inmate’s rebuttal etc.

Simon reminds us that habeas corpus is not a trial and, therefore, there is no requirement to prove the facts or reasons for the change. Furthermore, it is not a method to correct or remove information in the inmate’s file.

When is my client eligible for parole?

Your client is generally eligible for full parole when he or she has served 1/3 of the sentence, living where he/she wants. However, this type of parole is quite uncommon as the parole board is reluctant to release offenders into the general public without support and supervision of a halfway house.

A client is eligible for day parole 6 months before full parole, living at a halfway house.

Simon notes that there is no difference between a 2 and a 3 years sentence for parole, as an inmate must serve 6 months before being eligible for day parole. It is a timing issue.

Statutory release occurs at 2/3 of the sentence. The parole board may impose a residency condition (day parole type release) for a stat release.

The 1/6 is available in limited circumstances such as drugs or fraud.

Practically speaking, inmates are not getting a hearing from the parole board for 8 to 12 months.

More information

Simon covers more topics in his presentation and paper including:

  • Parole appeals
  • Post-suspension hearings
  • Segregation review hearings
  • Provincial inmates (parole, security classification)
  • Complaints and grievances

Watch the Video

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