Interim Policy bulletin 669

Commissioner's Directive (CD) 703 - Sentence Management

CD 715-2 - Post-Release Decision Process

On January 15, 2021, the Ontario Superior Court of Justice rendered its decision in John Howard Society of Canada v. Attorney General of Canada.

The Court found that subsection 163(3) of the Corrections and Conditional Release Regulations (CCRR) has the effect of depriving offenders suspended within six months (180 days) of sentence expiry (WED) of their liberty interests, in a manner contrary to the principles of fundamental justice.

The timeframe to render a decision for this cohort of offenders was found to be grossly disproportionate to the objectives of the CCRR, given that it may lead to continued incarceration beyond an offender's re calculated notional statutory release date (NSRD) under paragraph 127(5)(a) of the Corrections and Conditional Release Act (CCRA).

Rather than striking down subsection 163(3), the Court granted the constitutional remedy of reading language into the provision, as follows:

Changes to CD 715-2 - Post-Release Decision Process and CD 703 - Sentence Management are required to reflect the new timeline for the referral of post-release suspension cases to the PBC.

Until amendments are made to CD 715-2 - Post-Release Decision Process and CD 703 - Sentence Management the procedures outlined below must be followed for offenders recommitted on suspension who are within two months (60 days) of their WED. For all other suspension referrals, the timeframes and procedures outlined in CD 715 2 - Post-Release Decision Process continue to apply, with the exception of instructions provided in the Case Management Bulletin dated 2021-04-21 related to the addition of the NSRD at the beginning of the report.

1. Community staff will monitor suspended cases and prioritize PBC referrals according to the NSRD of the offender. In some cases, CSC may need to refer cases to the PBC in less than the usual 30-day timeframe.
2. In order to avoid the PBC losing jurisdiction to render a post-release suspension decision, communication between the two organizations is critical where CSC is referring the case for review, to ensure a decision is rendered before the NSRD.
3. Upon the suspension of the release of any offender within 60 days of WED, including where the offender is still incarcerated in a provincial facility, the Parole Officer will send an email to Gen-Ont-RegionalChiefsSentenceManagement@csc-scc.gc.ca or, in the case of the Thunder Bay Parole Office, to ChiefsofSentenceManagement.GEN-PRA-500@csc-scc.gc.ca:
   1. reporting the suspension
   2. requesting information concerning any new charges and bail status, and
   3. requesting confirmation of the NSRD.

*Of note, there is no NSRD in cases involving the suspension of a one-chance statutory release.

4. The assigned Sentence Management Officer will provide the above information within one working day from the receipt of the request.

5. If an offender's suspension is not cancelled by CSC, the Parole Officer will refer the case to the PBC as per the timeframe in Annex A - Post-Release Suspension Referral Timeframes.
6. The referral will include:
   1. the Assessment for Decision as outlined in Annex B - Assessment for Decision Streamlined Report - Only in Ontario - Accelerated Post-Release Suspension Process
   2. the most recent Correctional Plan Update, and
   3. the Community Assessment (if required).
7. In addition, the Parole Officer will send a notification, via email, to the assigned Sentence Management Officer and to the PBC at GEN-ONT-PBC/CLCC-RECORDS@PBC-CLCC.gc.ca or, in the case of the Thunder Bay Parole Office, to SKRecords.gen-PBC-CLCCPRA@csc-scc.gc.ca to advise them of the completed referral, the NSRD, any new charges and bail status.

*Of note, the referral of the case of an offender 61 to 180 days before their WED remains unchanged, but the instructions outlined herein with regard to enhanced notifications and communication will be followed. The referral will be made as outlined in Annex B of CD 715-2 - Post-Release Decision Process, and include the offender's NSRD at the beginning of the report.

8. Information sharing with the offender will occur as soon as possible. Confirmation is required from the offender as to whether they want to proceed with a post-release suspension hearing. Where the offender waives their right to a hearing, the Case Management Team will send the appropriate documentation and Waiver (PBC/CLCC 0079) with the referral.

*Of note, for some cases (e.g. with a NSRD within 30 days), the review will be completed whether or not a waiver of hearing or information sharing has been completed.

9. The Parole Officer will consult the Victim Services Unit on victim's concerns and provide all relevant information.

10. In the event that the suspension is cancelled locally, the Parole Officer will update the Correctional Plan as soon as possible, but no later than 14 days from the cancellation. Consistent with paragraph 38 of CD 715-2 - Post-Release Decision Process, the suspension period is limited to the time required to investigate and prepare alternative release plans, to a maximum of 30 days. If the matter is not being referred to the PBC, this period may extend past the NSRD.
11. The Parole Officer will notify immediately the assigned Sentence Management Officer of the cancellation.

12. If a loss of jurisdiction occurs, the procedures outlined in paragraphs 51 and 52 of CD 715-2 - Post-Release Decision Process still apply.
13. In addition, when the PBC has confirmed the loss of jurisdiction, community staff will manually update the offender's status from "Temporarily Detained" to "Supervised" in the "Supervision Information and Certificates" screen of the Offender Management System. The suspension warrant remains as "Executed".
14. Where the offender has not been transferred to federal custody and remains in a provincial facility, the Area Director will send a letter (see Annex C) to the provincial facility, including the release certificate, confirming the loss of jurisdiction and the authority for the immediate release of the offender, unless there are other matters requiring the offender to remain in custody.

15. If a detention referral is being considered, staff will follow the current referral process pursuant to CD 712-2 - Detention.

The Reintegration Operations Division developed this interim policy direction in collaboration with the PBC, the CSC Ontario region, and the Strategic Policy Division.

All staff involved in post-release suspension cases of offenders serving sentences in Ontario who are within 60 days of their WED.

*In order to assist the PBC to prioritize cases referred for review for whom the expiration of their sentence is imminent, please include the following statement at the beginning of the report, as well as the new NSRD:

State the purpose for the assessment (i.e. to inform PBC of the suspension and underlying reasons) and identify any relevant documentation that must be read in conjunction with it, including the Criminal Profile Report (date), the most recent Correctional Plan Update (date) and the most recent Community Strategy (date), if applicable.

Briefly describe the circumstances and the offender's overall behaviour leading to the current suspension.

Assess the relevant aspects of the offender's overall behaviour in the community during previous and current releases. Was the offender engaged in interventions? What alternatives to suspension or mitigation strategies have been used by the Case Management Team?

How has the offender's Indigenous social history impacted their overall behaviour in the community? Additionally, for Indigenous offenders, are they working with an Elder or engaging in cultural intervention/pursuits? If so, what are the noted overall impacts of their engagement?

Update the offender's progress since the last Correctional Plan Update. Review all dynamic factors and update accordingly. Assess the degree of impact of the programs and other interventions that have been provided on each of them, in relation with the reason for suspension.

For Indigenous offenders, how did programs and interventions take account of the offender's culture and background, including Elder involvement and interest in CCRA section 81, 84 or 84.1 options?

If revocation is recommended, comment on whether the current circumstances of violation merit a detention review.

Assess the offender's new release plan, highlighting strengths and weaknesses as well as the proposed supervision strategy, if applicable.

Assess the need for special conditions, including a residency condition, in light of the circumstances of the current suspension.

If a case is made for a residency condition for an offender on statutory release, particular care must be taken to ensure that the legislated criteria are met. It is not enough to state that residency will be beneficial; the Parole Officer must be able to demonstrate that, in the absence of a residency condition, the offender will present an undue risk to society. This requires both establishing how the residency condition will ensure that there is not an undue risk and demonstrating that other possible supervision strategies are insufficient to manage risk.

If a case is made for a residency condition for an offender subject to a long-term supervision order, the Parole Officer must demonstrate that the condition is both reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender. Residency conditions for an offender subject to a long-term supervision order may only be imposed for a maximum of 365 days.

For Indigenous offenders who are interested in following a traditional path, what culturally appropriate programming is available, including involvement of Elders, Indigenous Community Liaison Officers, home community or different Indigenous community (sections 81, 84 and 84.1of the CCRA)? What are the appropriate resources available in the community? If, for any reason, their home community is not considered suitable, how would a different Indigenous community provide a higher level of support? Is there a section 84 or section 84.1 in place? Would a plan involving placement at a section 81 facility assist in mitigating risk? If a section 84 or section 84.1 is in place, can we leverage existing resources to help mitigate risk? Has consultation been completed with the Elder and Indigenous Community Development Officer the offender most recently worked with?

For Indigenous offenders, consider the identified need areas, within the context of the offender's Indigenous social history, and how the recommendation will address these needs. When recommending special conditions, make links between the need for a certain condition and the offender's Indigenous social history.

Assess victim information and indicate how the release plan will mitigate any identified risk. Pursuant to subsection 133(3.2) of the CCRA, if a victim statement has been provided pursuant to subsections 133(3.1) and 134.1(2.1) of the CCRA, consider whether any conditions are reasonable and necessary to protect the victim; the reasons to recommend a condition or not must be documented. If such a statement has not been provided, nothing precludes the author from recommending any conditions pursuant to subsections 133(3) and 134.1(2) of the CCRA.

If recommending the removal or modification of a condition which was imposed to protect a victim, consider every victim's concerns pursuant to subsections 133(7) and 134.1(5) of the CCRA.

Parole Office
Address
City, Province
Postal Code
Telephone: xxx-xxx-xxxx

_
date

Attention: name of provincial facility

Parole Board of Canada Loss of Jurisdiction - Immediate Release
Re: Name, Surname
FPS: xxxxxxx
DOB: yyyy-mm-dd

Due to a recent court ruling and given that this offender's notional statutory release date is in the past, the Parole Board of Canada has lost jurisdiction to take a post-release suspension decision in this case. As such, the offender may be subject to immediate release from custody at the (name of provincial facility) to the supervision of (name of supervision office) on statutory release. Should the offender be required to remain in your custody due to other matters, please contact the undersigned without delay.

Attached is a copy of the offender's updated Statutory Release Certificate.

Should you have any questions, please contact me directly.

Sincerely,

Area Director
Office
Telephone: xxx-xxx-xxxx