Commissioner's directive 710-5: Judicial review of parole ineligibility

Commissioner's Directive

1. The Institutional Head will:
   1. assign a staff member to complete the Parole Eligibility Report for the Purpose of Judicial Review
   2. send a copy of the inmate's application for Judicial Review to the regional office of Justice Canada and CSC Legal Services
2. CSC Legal Services will provide advice to staff, in conjunction with the regional office of Justice Canada, on:
   1. how to respond to the court's requests
   2. how to prepare staff members to appear at an application hearing and/or a Judicial Review hearing
3. The staff member assigned to write the Parole Eligibility Summary Report for the Purpose of Judicial Review, as outlined in Annex B, normally a Parole Officer, should have no previous direct case management relationship with the applicant and will prepare the report within the time granted by the judge ordering the report, or within the time period provided by the provincial rules.
4. If subpoenaed by the court, staff members will be responsible to appear, in relation to their case management duties, at an application hearing and/or a Judicial Review hearing.

5. Twelve months prior to the inmate's Judicial Review Eligibility Date, the assigned Parole Officer will meet with the inmate to discuss whether the inmate intends to submit an application, and to a the inmate that it is his/her responsibility to engage legal counsel.
6. The Parole Officer will inform the inmate, if eligible for Judicial Review, of the following:
   1. an application must be submitted within 90 days after the day on which the inmate has served 15 years of his/her sentence
   2. if an application is unsuccessful, but a determination is made that the inmate could re-apply, he/she must do so within 90 days of the five-year anniversary of the last application or the date set by the judge or jury (which would be no earlier than five years)
   3. if the inmate does not make an application within the 90-day period, the inmate may only apply within 90 days after the day on which he/she has served a further five years of his/her sentence
   4. the 90-day time limit to make an application may be extended by the appropriate Chief Justice, to a maximum of 180 days if there are circumstances beyond the inmate's control
   5. in accordance with subsection 745.6(2.8) of the Criminal Code and CD 784 – Victim Engagement, if the inmate does not make an application within the maximum time period allowed, the Parole Officer will complete a Memo to File indicating that an application has not been made. Even in the absence of a victim notification required flag, the Parole Officer will, for victim notification purposes, inform a Victim Services Officer, as outlined in Annex D of CD 784 – Victim Engagement.
7. If an inmate made an unsuccessful application prior to December 2, 2011, for which a determination was made by a judge or jury regarding a further application, the Parole Officer will inform the inmate that he/she may re-apply within 180 days after the end of two years of the determination (if no specific time has been set) or within 180 days after the end of a specified time.
8. When the inmate submits an application for Judicial Review and informs the Parole Officer, the Parole Officer will complete a Memo to File indicating that an application has been made. The Memorandum must also specify the name and address of the lawyer representing the inmate as well as the location of the original trial.
9. If the inmate is applying for Judicial Review, the following procedures apply:
   1. the Parole Officer determines if the inmate wishes to transfer to the jurisdiction where his/her hearing will be held to prepare his/her file
   2. the Parole Officer advises the inmate to request access to his/her file through Access to Information for the purpose of information sharing with legal counsel
   3. the Parole Officer ensures that a psychological risk and/or psychiatric assessment has been completed, or will be completed, within the year preceding the application
   4. the staff member assigned to write a Parole Eligibility Summary Report for the Purpose of Judicial Review will use the Report Outline found in Annex B or follow, if applicable, the Rules of Practice for the province in which the hearing will be held
   5. the author of the report will input the document into a Memo to File entitled “Judicial Review”. A copy will be placed on the case management file
   6. the Parole Officer responsible for the case will provide a copy of the Parole Eligibility Summary Report for the Purpose of Judicial Review to the inmate
10. The Judicial Review process is initiated by the inmate through the submission of an application to the Chief Justice in the province in which he/she was convicted. The Chief Justice decides whether the application for Judicial Review should proceed.
11. The following steps are followed in a Judicial Review:
    1. judicial screening
    2. hearing of the application (if a jury is empanelled pursuant to subsection 745.61(5) of the Criminal Code)
12. During the judicial screening, the judge will determine, in accordance with the criteria set out in subsection 745.63(1) of the Criminal Code and on the basis of the following documents, whether the applicant has shown, on a balance of probabilities, that there is a substantial likelihood that the application will succeed. The documents include:
    1. the application
    2. any summary report provided by CSC or other correctional authorities
    3. any other written evidence presented to the Chief Justice or judge by the applicant or the Attorney General
13. The judge may decide to hold an application hearing conference during the judicial screening. The application hearing conference and application hearing involve counsel for the parties. The author of the summary report may be required to appear at this stage.
14. During the judicial screening, the judge:
    1. will make a decision on the relevance and admissibility of the evidence submitted and the manner in which it is presented
    2. will order that a Parole Eligibility Summary Report for the Purpose of Judicial Review be drafted on each of the factors set out in subsection 745.63(1) of the Criminal Code
    3. will determine whether the inmate is required to appear
15. Following the Judicial Review hearing, the Parole Officer responsible for the case will update the Correctional Plan and the Criminal Profile Report as required.

Commissioner,

Original Signed by:
Don Head

CD 700 - Correctional Interventions
CD 701 - Information Sharing
CD 710-2 - Transfer of Inmates
CD 784 - Victim Engagement

Judicial Review: : a review by the courts to determine a reduction in the number of years of imprisonment without eligibility for parole pursuant to subsection 745.6(1) of the Criminal Code.

Criminal Code, subsection 745.6 Subject to subsections (2) to (2.6), a person may apply, in writing, to the appropriate Chief Justice in the province in which their conviction took place for a reduction in the number of years of imprisonment without eligibility for parole if the person:

• (a) has been convicted of murder or high treason;
• a.1) committed the murder or high treason before December 2, 2011;
• (b) has been sentenced to imprisonment for life without eligibility for parole until more than fifteen years of their sentence has been served; and
• (c) has served at least fifteen years of their sentence.

PAROLE ELIGIBILITY SUMMARY REPORT FOR
THE PURPOSE OF JUDICIAL REVIEW ’ REPORT OUTLINE

NOTE: The Parole Eligibility Summary Report for the Purpose of Judicial Review is to be objective and impartial and is based on the information currently available in the inmate's file. The report is not to contain opinions or recommendations.

List all:

• Persons contacted for the purpose of the report (for example, criminal justice contacts, institutional contacts)
• CSC documentation reviewed
• Documentation/reports appended to the Parole Eligibility Summary Report for the Purpose of Judicial Review

• Identify parent(s) and, where applicable, siblings' names, ages, residences, employment, and relationship with the inmate
• Detail the inmate’s date and place of birth, and type of upbringing discussing issues within the family, and within the greater home community of the inmate, such as, product of child welfare system, suicide, witness to acts of suicide/self harm, family violence/sexual/physical/emotional abuse and substance abuse. Include Indigenous Social History, factors include effects of residential school (i.e. inmate as survivor or intergenerational effects from family’s historical experiences), sixties scoop, family or community history of suicide, substance abuse, victimization, experience in child welfare system, level or lack of formal education, level of connectivity or fragmentation with family/community, loss or struggle with cultural/spiritual identity, experience with poverty, exposure or membership affiliation with gangs, etc.

• Academic level achieved (prior to current incarceration)
• Any significant difficulties, experiences (i.e. learning disabilities)

• Inmate's employment history, noting employment patterns, skills and trades

• Inmate's marital status, if applicable, name of spouse and children
• Inmate's present relationship to both spouse and children

• General health (prior to current incarceration) including previous psychological/psychiatric, mental health and/or history of suicide attempts and self-injury behaviours

• The age at which delinquency began including the nature and type of incidents as well as any group home/reformatory experience
• Current and past gang affiliations or organized crime involvement

• Age when adult crime began
• Nature and type of offences
• Accomplices
• Prior experience in provincial and/or federal prisons
• Experience on prior conditional release, including probationary periods
• Current and past gang affiliations or organized crime involvement

• Date of arrest and charge
• Date of conviction and sentence
• Date the death sentence was commuted to life imprisonment and length of time spent on “death row”, if applicable
• Date of admission to federal custody
• Date of UTA or day parole eligibility
• Date of full parole eligibility
• Date of Judicial Review eligibility

• Briefly outline the inmate's history of transfers, from the beginning of his/her current incarceration to the present (provide reasons for transfer but details of any disciplinary actions should be in the Discipline Section, below)

• Describe any disciplinary offences and the resulting disciplinary actions. All information must be factual and cannot be based on inference or suspicion
• Note any security concerns

• Detail the dynamic factors identified within the current Correctional Plan, making reference to the identified factors that contribute to his/her criminal behaviour
• Identify involvement in any correctional treatment programs and documented progress to date. All relevant Program Performance Reports should be appended to the Parole Eligibility Summary Report for the Purpose of Judicial Review
• Identify the release plan and for Indigenous inmates, discuss any support to be provided pursuant to section 84 of the CCRA

• Educational and/or vocational programs that the inmate has been involved in since admission
• The inmate's employment history since admission, noting work locations, changes and overall stability
• Any significant educational and/or employment performance evaluations
• Marketable skills the inmate has acquired

• Discuss the inmate's use of leisure time activities (i.e. involvement in spiritual/cultural activities, gym, yard, etc.)

• Describe the inmate's attitude and behaviour towards institutional staff, including: Instructors, Teachers, Correctional Program Facilitators, Work Supervisors, Correctional Officers, Primary Workers/Parole Officers, Elders/Chaplains, Indigenous Liaison Officers, Social Programs Officers, and others as appropriate

• Describe the inmate's attitude and behaviour toward other inmates

• Describe the inmate's attitude towards family and other community support, visits received, participation in the Private Family Visiting Program, correspondence and the current family situation
• Describe the inmate's proposed release plan, including the type of community, supports available as well as the current dynamics of the community (e.g., strengths/weaknesses)

• Discuss any specific health problems (if applicable) and involvement in related medical interventions

• If applicable, discuss the inmate's participation in specific treatment programs (e.g., sex offender, anger management and Indigenous programming, and ongoing counselling, etc.)
• All relevant mental health assessment reports completed since admission, including an Elder review, if available, should be appended to the Parole Eligibility Summary Report for the Purpose of Judicial Review

• If not already addressed under the Overview of Correctional Plan section, discuss the inmate's involvement in any self-help programs (i.e., cultural, life and social skills, drug and alcohol abuse rehabilitation, etc.)
• Discuss the inmate's views toward his/her general progress and emotional stability