HOME

PRISON LAW CONFERENCE 2010

APPLICATIONS FOR PAROLE

Ann Pollak, Barrister & Solicitor



This is essentially a re-statement of the law respecting parole for the absolute beginner, as of 16 October 2010. I have not addressed revocation, post-suspension or detention hearings.

The relevant portions of the statute are in Part II of the Corrections and Conditional Release Act, SC 1992, c.20, starting at section 99, hyper-linked here:

PART II CONDITIONAL RELEASE, DETENTION AND LONG-TERM SUPERVISION

The Corrections and Conditional Release Regulations, SOR/92-620 are here:

PART II CONDITIONAL RELEASE

In the first five sections of the CCRA, you find the purpose and principles of the whole scheme.

The core values of the Parole Board of Canada are set out in the Policy Manual, which is to be found here:

NPB Policy Manual

In Part II of the statute, the purpose and principles of conditional release start at section 100. The essential nuggets you will use repeatedly are:

101. The principles that shall guide the Board and the provincial parole boards in achieving the purpose of conditional release are

(d) that parole boards make the least restrictive determination consistent with the protection of society;

AND:

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.

Link to CCRA, s.100

Parole Eligibility

It is important to keep in mind that parole eligibility does not equate to release.

Unescorted Temporary Absences

Prisoners are eligible for UTAs at half of their full parole eligibility, but no sooner than six months into their sentence. Then there are the exceptions:

Note that no one in maximum security is eligible for UTAs.

Link to CCRA, s.115

Here you will have the “not undue risk” hurdle to clear, and also you have to satisfy the Board that the applicant has a structured plan for the absence(s), such as attending a work placement, taking a course or other community programming, or some other appropriate activity. The authority to grant UTAs can be delegated to the Commissioner of CSC or institutional head.

Link to CCRA, s.116

The regulations list the criteria for authorizing UTAs.

Link to CCRR, s.155

Day Parole

Lifers have a parole ineligibility set by the Court or the Criminal Code. Otherwise, generally federal prisoners are eligible for day parole six months before their full parole eligibility or six months into their sentence, whichever is longer.

The exceptions are:

Provincial prisoners are eligible as of having served half of full parole ineligibility.

Young persons sentenced to life are not eligible for day parole until four-fifths of their full parole ineligibility, or three years before their full parole eligibility, whichever is longer.

The Board may decline to review a day parole application for prisoners serving short sentences of less than six months.

Link to CCRA. s.119

A prisoner has to apply for day parole. The regulations state that the application must be submitted no later than six months before the expiration of two thirds of the sentence, and the review must take place within six months after the Board receives the application.

If a day parole application is unsuccessful, a prisoner may not apply again until six months after the decision to deny day parole. If the application is successful, it can only be granted for six months at a time.

Link to CCRA, s.122

The regulations respecting day parole reviews are linked here:

Link to CCRR, s.157

Accelerated Parole Reviews

This is a mandatory review for those who are eligible. APR candidates are first-time federal prisoners not convicted of serious violence or especially serious drug offences.

Link to CCRA, s.125

The listed offences include, for example, murder (including attempts and conspiracies), terrorism, serious violence (including robbery), criminal organization offences, criminal harassment

Link to CCRA, Schedule I

The listed offences also include serious drug charges where the Court has increased parole ineligibility

Link to CCRA, Schedule II

Accelerated Day Parole

Prisoners eligible for accelerated parole can apply for day parole six months in, or at one sixth of their sentence, whichever is longer.

Practically speaking, since most APR candidates are serving short sentences, the Board wants to review their day parole and full parole application at the same time. This is not necessarily to the advantage of the prisoner, and needs careful thought.

Link to CCRA, s.119.1

The process and the test for accelerated day parole is the same as for accelerated full parole. The only difference is in timing, and as the difference in timing between accelerated day and full parole is usually insignificant, this is a mostly theoretical distinction.

Accelerated Full Parole

The Board conducts a paper review and shall direct early release if the criteria are met. The Board, sitting in a panel of at least one member (CCRR, s.149), must be satisfied

that there are no reasonable grounds to believe that the offender, if released, is likely to commit an offence involving violence before the expiration of the offender’s sentence.


If the Board is not so satisfied, there will be a hearing before a panel of at least two members. So when you attend that hearing on behalf of your client, there is already essentially a prima facie case against you. The test is the same as at the paper review, only now the determination is made after hearing from your client.

Where early parole is not granted after the hearing before the panel, the prisoner is still eligible to apply for full parole in the ordinary course, subject to the ordinary limits on subsequent reviews for full parole. That is, the Board must conduct another review within two years, but the prisoner may not apply again for six months (CCRA, s.123(5)).

You really want your APR client to start building a case for early parole right from the beginning of the sentence. The risks to be addressed and the Correctional Plan are identified during the intake process. Under the terms of a pilot project currently in place in CSC Pacific Region, low risk prisoners are not given access to correctional programs, because CSC has accepted the conclusions of research showing that correctional programming for low risk offenders only increases risk.

The prisoner needs to start building a favourable case file with CSC and aim for a successful paper review. This can be hard to do, since APR candidates usually have short sentences, and there is quite a bit of inertia to overcome to get the program machinery grinding for a prisoner on a short sentence in an institution where so many prisoners are serving very long sentences. Many prisoners also battle another kind of inertia in themselves, perhaps despondency, as they adjust to the shock of their first federal sentence.


Link to CCRA, s.126

CSC is required to review a prisoner’s case for APR within one month of admission to penitentiary, and then the matter is referred to the Board no later than three months before day parole eligibility. So on a two to three year sentence, this referral will happen three months into the sentence. Time frames are even tighter if the prisoner’s admission to penitentiary is delayed. Your client is still probably shell-shocked, isolating, and angry at the time the case file is referred to the Board.

Link to CCRR, s.159

Full Parole

Generally, prisoners are eligible for full parole at one third of their sentence, or seven years, whichever is less.

Link to CCRA, s.120

The Board must review for full parole within the six months prior to full parole eligibility.

Link to CCRR, s.158

Lifers, of course have their parole ineligibility set by the Court, or else it is seven years. However, in the case of lifers, pretrial time in custody counts toward parole eligibility.

Additional Consecutive sentences have parole ineligibility that runs consecutively. So the parole eligibility train for the additional sentence does not leave the station until the first one arrives at one third of the first sentence, and parole eligibility is not triggered until all the trains have each completed one third of the sentence in sequence.

Additional Concurrent sentences have parole ineligibility that runs concurrently as of the date the additional sentence was imposed. So the trains leave the station on different days, but they can run on parallel tracks at the same time, and whichever one gets to one third last is the one that triggers parole eligibility.

Lifers always serve concurrent sentences, but get no freebies on parole eligibility. Their parole ineligibility always runs consecutively, regardless of what the Court may have said in pronouncing sentence.

Very long sentences that are not life sentences have a maximum parole ineligibility of 15 years.

Link to CCRA, s.120.1 and 120.2

For federal prisoners, the full parole review is mandatory, and the Board must review full parole unless the prisoner waives the review in writing. If the application is unsuccessful, or the hearing is waived by the prisoner, the Board must conduct another review within two years, but the prisoner may not apply again for six months.

For provincial prisoners, the full parole review is only on application by the prisoner, and the Board is not required to hold a review for a short sentence of less than six months.

Link to CCRA, s.123

Practice Before The Parole Board Of Canada

You must begin with reference to your role as an “assistant” before the Board. You are not counsel. This takes some getting used to.

Do read the Board’s policy on Assistants at hearings, which is found here:

Chapter 9.4 Assistants at hearings

Your greatest value as an assistant is before the hearing. By the time you get to the hearing it is already too late.

You can help by preparing your client to present the best case to the Board. This begins the day your client arrives at the institution. Make sure your client understands the long-term benefit of taking advantage of the programs offered, and especially that your client understands the need to push a little for that programming, because the programs are often over-subscribed.

Prisoners serving short sentences complain that there is not time to get access to and take advantage of programs offered, and that the prisoners serving the longer sentences ought to be given lower priority since they have more time to complete programs in their Correctional Plan. Prisoners serving longer sentences complain that they are not given sufficient priority in getting access to programs because case management staff are always pushing the shorter-term prisoners through. It hardly matters who has the more valid argument. The point is there is an economy of scarcity in getting into programs and prisoners need to take an active role in advancing their Correctional Plan.

Encourage your client to build some rapport with their Parole Officer. It stands to reason that if that relationship is good not only will the reports appear more positive, but both you and your client will have more success in getting the PO to open up about what the concerns are that need to be addressed in the Correctional Plan so that your client can present a case to the Board that supports community supervision as part of your client’s rehabilitation. What supports need to be in place as part of a release plan? What programs are available that would advance your client toward release? Is the PO aware of your client’s release plans? Has a Community Assessment been done so that the Board can be satisfied the plan is feasible and durable?

A good relationship with the PO also assists when your client’s documents get trashed, stolen, or lost. In advance of a hearing, you will receive disclosure of current documents only. The panel members, however, will have a complete historical file in front of them. You want as many of those past Assessments for Decision, Correctional Plans, Psychological Assessments, Segregation Reviews, and past Decisions as you can put together. Once you review those documents, you and your client will have questions about what is reported, and you will want lots of time to run down the answers to those questions.

When you see a longitudinal view of the documents, it will be readily apparent that information gets into your client’s case file that is hearsay of the most dubious sort. This gets repeated year after year in the Assessments for Decision, and each time it is reported it looks like corroboration, but it is not. Allow some time to pick out the threads and follow them through the documentation back to source.

Possibly the most time-consuming part of your preparation will be the long journey to visit your client behind the walls and go through the documents and prepare a presentation. This is where you can make the biggest difference to your client, so do make the commitment to meet face-to-face and do some role play to prepare. Your client will need to show some understanding of the index offence. Your client needs to lose the guardedness that is a natural adaptation to life in prison, and demonstrate genuine, not superficial insight into identified risk factors for reoffending.

In this interview, really nail down a release plan, and then afterward give some thought to how to present that plan to the Board. You may gather letters of support from the community. Make sure there is a Community Assessment done for the place where your client hopes to live. How will your client keep occupied during the day?

The panel’s job is to assess risk. Your job is to help your client make the panel comfortable with whatever level of risk your client may present to the community. The key is not that your client presents no risk. The key is that your client’s risk is manageable in the community. What do you need to do the achieve that? What conditions will accomplish that? Does your client need a plan for managing medication in the community? Is a curfew relevant? Restrictions on your client’s movement? Access to electronic devices?

Don’t just defend against allegations. Help your client build supports that address risk factors that will be of concern to the panel. Get all that in place in advance of the hearing. You need to get your material to the NPB well in advance of the hearing so that it is ready to put in the hands of the panel members when they pick up the file to review prior to the hearing.

You will probably have some objections to raise during the court of the hearing. Remember that you are not there as counsel, and so your objections will not likely be welcome, but you may feel the need to make them anyway to establish a record for appeal. Your role at the hearing will be largely decorative. Really all you get to do is dress up the presentation in a nice package in your 10-minute submission at the end of the hearing. The reality is that you are unlikely to change anyone’s mind in that last finishing touch.

Remember there is plenty of law saying that the Board is not a court of competent jurisdiction to mete out Charter remedies. However, there is a recent case that may re-open this issue, linked here:

R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765