Can a suspended federal prisoner be held past their new statutory release date?
- Kate Mitchell
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When a federal prisoner who is on parole or statutory release is suspended, the prisoner is taken into custody and must await a post-suspension hearing. If revoked, the prisoner’s statutory release date is recalculated.
The Corrections and Conditional Release Regulation (“CCRR“) only requires the Parole Board of Canada to conduct a hearing within 90 days of the prisoner’s return to a penitentiary. The clock does not start to run if the prisoner is taken to a provincial facility, it only starts when the prisoner is returned to a federal prison.
As a result, prisoners have often ended up imprisoned past their new statutory release dates. This is frustrating because once a prisoner is past their new statutory release date the decision is effectively meaningless since the prisoner will either have their suspension cancelled or have their parole/statutory release revoked, in either case the prisoner simply gets released.
However, this changed as a result of John Howard Society of Canada v Her Majesty the Queen, 2021 ONSC 380, which found that section 163(3) of the CCRR violates section 7 of the Charter in a way that is not saved by section 1. Justice Muszynski held that the appropriate remedy was to read language in that would require the Board to render a decision on or prior to the suspended prisoner’s new statutory release date (unless the prisoner requests an adjournment).
Given the heightened risk of contracting COVID-19 in correctional facilities, it is important that prisoners not be incarcerated any longer than necessary. It requires efforts from both the Board and correctional authorities to ensure a prisoner receive a post-suspension review prior to their new statutory release date. The Board does not appear to have the capacity at the moment to conduct post-suspension hearings for federal prisoners out of provincial facilities. Moreover, the case preparation that the Correctional Service of Canada needs to do is challenging to complete while a prisoner is in a provincial facility.
At the moment, correctional authorities appear to be triaging prisoners awaiting post-suspension hearings for transfers back to federal penitentiaries. It can be difficult transferring prisoners from provincial to federal during a pandemic because of the need for prisoners to be quarantined after a transfer and the limited space in medical isolation ranges. It remains to be seen what, if any changes, will be implemented by the Board and correctional authorities in light of Justice Muszynski’s decision to ensure suspended prisoners are reviewed prior to their new statutory release date.
Unfortunately, there are still issues of delay in the post-suspension process, particularly for prisoners with distance statutory release dates who are kept for several months in provincial. For now, prisoners in this situation have to just wait until it’s their turn to be transferred back to federal.