14 January

Post-Sentencing: What happens next?

By: Marianne Salih

Overview

The fight for liberty is at the heart of criminal law. Liberty is most at stake at two stages of the legal process: bail and sentencing. The impact of a bail decision on your client is straightforward: s/he is detained or released on conditions. The impact of a sentencing decision is much more complicated.

Few defence lawyers concern themselves with what happens post-sentencing, and yet that is where clients often experience the most significant impact on their liberty. This article explains the basic functioning of the corrections system, including the manner in which sentences are served and the provisions for release.

Where are sentences served?

There are three types of detention facilities that house adult inmates: penitentiaries, reformatories, and correctional centres. Penitentiaries are operated by the federal government, regulated by the Corrections and Conditional Release Act[1], and house inmates sentenced to two years or more. Reformatories are operated by the provincial government, regulated by the Prisons and Reformatories Act[2], and house inmates sentenced to less than two years. Correctional centres house accused persons awaiting trial, as well as inmates serving short sentences (typically under six months). These include the Vanier Centre for Women, the Central East and Central North Correctional Centres, and Maplehurst Correctional Complex.[3]

Release from a Penitentiary

Federal inmates are eligible for three types of early release (i.e., release before their sentences have expired): statutory release, full parole, and day parole. Statutory release is the most common of these. All inmates are automatically scheduled for statutory release after serving two thirds of their sentences (CCRA, s.127(3)); not all inmates are actually released at this time, however.

Pursuant to s.130(3) of the CCRA, the Parole Board of Canada (PBC) may order an inmate to be detained beyond their statutory release date if there are reasonable grounds to believe that the offender is likely to commit an offence causing serious harm or death, a sexual offence involving a child, or a serious drug offence. Further, an inmates’ statutory release can be revoked pursuant to s.135 where an offender has breached a condition of his/her statutory release, or it is necessary and reasonable to suspend statutory release to prevent a breach or to protect society. Section 127(5) governs an inmates’ eligible release dates following a revocation of statutory release.

An offender is eligible for full parole after serving one third of his or her sentence (ss.120(1), (2), and s.123(1)), or, in the case of those serving an indeterminate sentence, after serving seven years see (s.761(1) and (2) of the Criminal Code). Special release dates apply to inmates serving multiple sentences or to inmates who incur additional sentences (see ss.120.1, 120.2, and 120.3). Full parole is granted at the discretion of the Parole Board of Canada. Inmates released on full parole are able to live in the community, but must report to parole officers on a regular bases.

An offender is eligible for day parole on the date ending six months before the date on which full parole may be granted, or after six months – whichever is later (s.119(1)(c)(i) and s.122(1))). Although this period of release is for a maximum of six months, it can be renewed: s.122(5). Offenders who are serving life or indeterminate sentences are eligible to apply for day parole three years before their full parole eligibility date or after three years, whichever is later.

Inmates released on day parole are permitted to go out during the day, but must return to a community-based residential facility at the end of each day (e.g. a half-way house or similar institution). The inmate must also meet regularly with a parole officer. Day parole is intended to give inmates the opportunity to participate in community-based activities, such as employment, volunteer work, and studies, while serving their sentence.

Inmates may also apply for temporary absences from prison.  Temporary absences may be granted for medical or administrative reasons, community service, family contact, parental responsibility, personal development (i.e., rehabilitation), or compassionate reasons. There are three types of temporary absences: escorted temporary absences (s. 17), unescorted temporary absences (s.115) and work releases (s. 18).

The conclusion of an inmate’s sentence is known as “warrant expiry.” Offenders who reach their “warrant expiry date” are no longer under the jurisdiction of Correctional Service Canada, and must be released. The CCRA deems time spent at large by an offender on a temporary absence, parole, or statutory release as a continuation of the sentence, until warrant expiry (s.128(1)).

Waiver and Appeals

For federal inmates, if parole is denied, the offender can appeal within two months of the decision, based on 1) the five grounds to appeal listed in s.147(1) of the CCRA and 2) the PBC Decision-Making Policy Manual for Board Members.

An offender can waive their right to a parole hearing or a detention review. The exception is for dangerous offenders and those serving indeterminate sentences, who cannot waive their right to a parole review but may waive their right to a hearing.

Release from Reformatories and Correctional centres

Provincial inmates earn remission (credit) against their sentence at a rate of 15 days per every month served. Remission is earned by “obeying prison rules and conditions governing temporary absence and by actively participating in programs…designed to promote prisoners’ rehabilitation and reintegration” (PRA, s.6(1)). This remission amounts to a credit of up to one third of a sentence. In other words, an inmate who earns full remission will be released after serving two thirds of their sentence – i.e., the equivalent of statutory release in a penitentiary. Pursuant to s.6(4) of the PRA, a prisoner who breaches prison rules may be liable to forfeit earned remission (see also s. 28(1) and (2) of the Ministry of Correctional Services Act).

Pursuant to s.41(1) of the Ministry of Correctional Services Act (MCSA), an inmate must serve one-third of their custodial sentence before being eligible for parole. Inmates serving less than six months may apply to the Ontario Parole Board (“OPB”) for parole at any time, but do not have the right to a parole hearing. Where, in the opinion of the Ontario Parole Board (OPB), “compelling or exceptional circumstances exist,” the OPB may parole an inmate “at any time,” pursuant to s.41(2).

Day parole is not available to prisoners in provincially-administered institutions. Temporary absence programs do, however, exist, which may permit a similar form of release (see PRA, s.7.3; see also MCSA s.27(1))

At the end of a parole hearing, the OPB can make one of three decisions: it can grant parole, deny parole, or defer parole. If parole is granted, the parolee receives a parole certificate that must be kept on him/her at all times. This lists the conditions of release. The OPB can revoke parole at any time if the inmate is discovered to have given false information at the parole hearing, breaches the conditions of release, or stops attending institutional programs. If parole is denied, the inmate may write to the Associate Chair of the OPB to request a review of the decision. If Parole is deferred, it is because the OPB requires more information, and a new hearing date is scheduled for that purpose.[4]

In short, release of inmates from federal and provincial jails operates similarly – with all inmates eligible for release after serving two thirds of their sentence, and some being released at the parole boards’ discretion after serving one third of their sentence. Some inmates are also released even earlier on day parole and temporary absences.

Decision Making of the Parole Boards

The Parole Board of Canada

The Parole Board of Canada (“PBC”) has jurisdiction over regulating and granting release of inmates from penitentiaries. The PBC also has jurisdiction over reformatories in all provinces in Canada except Quebec and Ontario – which have their own provincial parole boards.

The PBC reviews offenders for parole and makes a discretionary decision to grant parole or temporary absences. If parole is denied, the PBC must review the offender’s parole at least every two years (see CCRA, s.123(5); s.761(1) and (2) of the Criminal Code) – though in practice, parole is reviewed more frequently.

In determining whether to grant parole, the PBC must be satisfied that: 1) the offender will not, by reoffending, present an undue risk to society before the expiration of his/her sentence; and 2) the offender’s release will contribute to the protection of society by contributing to his/her reintegration into society as a law-abiding citizen (see CCRA, s 102).[5]

In making these determinations, the PBC considers the following factors:

  1. Criminal and social history, the reasons for and type of offence, including the inmate’s understanding of the offence and any past offences;
  2. Any progress the inmate has made by himself/herself or through participation in programs, his/her behaviour in the institution and while on any previous conditional release(s);
  3. Any victim impact statements; and
  4. The inmate’s release plan and community management strategy[6] (see also CCRA, 100-101)

The Ontario Parole Board

The granting of parole by the Ontario Parole Board (“OPB”) is discretionary, and governed by s.44(1) of the MCSA, which takes into account the inmate’s character, abilities, prospects for rehabilitation, conviction, sentence, criminal record, release plan, and any reports from the superintendent or health care professionals.

The OPB distributes a manual to all inmates, which recommends that, in planning for parole, the inmate should:

  • Take the institutional programs offered to you and be prepared to tell the Board what you learned from them
  • Get good work reports
  • Avoid illegal activities and bad behavior while in jail
  • Make contacts in the community and the institution: family, employer, school, agencies such as John Howard or Elizabeth Fry Society, treatment and counseling services.[7]

Involvement of Lawyers, Victims, and Family Members at Parole Hearings

Lawyers are not recognized as having any official status at parole hearings. Instead, they can attend as ‘assistants.’ The ‘assistant’ sits next to the inmate during the hearing (usually before a panel of three). The inmate can ask the assistant any questions during the hearing. At the end of the hearing, the inmate may make submissions before the panel. The assistant is then invited to make submissions on behalf of the inmate. An offender who would like a lawyer to attend must fill out an Application for An Assistant Form.

Legal aid does not cover parole hearings, but does cover applications to hold an inmate to warrant expiry, pursuant to s.130(3) of the CCRA, and also covers some detention reviews.

Victims may attend a parole hearing or present statements in writing, or by audio or video recording. Family and friends of the inmate may also attend the hearing as observers. To do so, the individual must apply to the PBC using the Request to Observe a Parole Hearing Form, which should be sent to the PBC at least 30 days before the hearing. An observer will be permitted to attend unless the PBC determines that his/her presence may adversely affect the hearing (see s.140(4) of the CCRA; see also s.140(5)).

Family and friends may also submit their own statements in writing, or by audio or video recording. These statements should be provided to the PBC at least 30 days before the hearing.

Advice to Clients

Defense lawyers should advise their clients what to expect and how to maximize their chances of early release. Upon being sentenced, an inmate will typically start at a correctional centre before being processed and sent to a penitentiary or reformatory. Each facility has a sentencing management unit, which reviews the inmates’ file, calculates release dates (day parole, full parole, and statutory release), assesses programming needs, and designates the offender as requiring minimum, medium, or maximum security.

Shortly after entering custody, inmates serving sentences of six months or more will be assigned a parole officer, who will assist the inmate in accessing programs and preparing for parole.

Inmates who would like to take advantage of work absences should begin preparation before entering into custody by obtaining necessary paperwork (work letters, references, schedules etc.). The parole boards are slow to process temporary absence applications, and clients should be encouraged to apply immediately upon entering federal or provincial custody.

Finally, clients should be encouraged to actively participate in voluntary programs while in custody, avoid any misconduct, and prepare comprehensive release plans demonstrating a place to live, employment, and community support. Clients may retain counsel privately to assist in parole hearings. Clients should apply to legal aid for assistance in detention reviews, revocation and suspension hearings, and applications to detain the client past statutory release until warrant expiry.

For more information about the Parole Board of Canada and release from penitentiaries, see

For more information about the Ontario Parole Board and release from reformatories, see

Endnotes

[1] Corrections and Conditional Release Act, SC 1992 c-20, s.130(3). See also related regulations: Corrections and Conditional Release Regulations, SOR/92-620

[2] Prisons and Reformatories Act, RSC, 1985, c P-20. See also related regulations: Ministry of Correctional Services Act, RRO 1990, Reg 778: General

[3] For a list of all of these correctional centres, see http://www.mcscs.jus.gov.on.ca/english/corr_serv/facilities/corr_centres.html

[4] See Ministry of Community Safety and Correctional Services, Inmate Information Guide https://www.mcscs.jus.gov.on.ca/english/corr_serv/PoliciesandGuidelines/CS_Inmate_guide.html#P453_66844

[5] National Parole Board, Correctional Services of Canada, “Your Guide to Parole,” January 2010 at 5; see https://www.canada.ca/en/parole-board/corporate/publications-and-forms/your-guide-to-parole.html

[6] Ibid.

[7] Click here for pdf. copy of manual

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