Chapter 5 - Detention

In Effect

2024-01-02

Legislative Framework

Canadian Victims Bill of Rights, section 15.

Corrections and Conditional Release Act, sections 99(1), 100, 100.1, 101, 107(1), 129, 130, 131 and 132, Schedules I and II.

Corrections and Conditional Release Regulations, sections 153 and 160.

National Defence Act, section 130.

Detention Referrals

1. In order to conduct a detention review pursuant to subsection 130(1) of the Corrections and Conditional Release Act (CCRA), the Board must receive a detention referral from the Correctional Service of Canada (CSC) or a provincial or territorial correctional authority in accordance with section 129 of the CCRA.
2. Upon receipt of a referral, the Board will assess whether it has the authority to conduct a detention review by determining whether:
   1. the referral authority is of the opinion that the applicable criteria for referral set out in subsection 129(2) or 129(3) of the CCRA are met; and
   2. the referral authority’s conclusion is reasonable.
3. In cases where the Board determines that the referral was made in accordance with subsection 129(2) or 129(3) of the CCRA, it will inform the offender, in writing, of the referral, as well as the date of the detention review, in accordance with the timeframes set out in subsection 160(1) of the Corrections and Conditional Release Regulations (CCRR).
4. A case is considered to have been referred on the day the referral is received by the Board.

Withdrawal of a Referral

5. A request to withdraw a detention referral must be received in writing from the referral authority and must include the reasons for the withdrawal.
6. Reasons for a withdrawal may include, but are not limited to:
   1. new information indicating that the referral criteria at the time the case was referred were not met; or
   2. the offender’s statutory release date has changed.
7. The Board has the discretion to either accept or reject a request to withdraw a detention referral.

Interim Review

8. In accordance with paragraphs 129(5)(b) and 129(5)(c) of the CCRA, where an offender’s case is referred by the Commissioner of CSC to the Chairperson pursuant to subsection 129(3) of the CCRA, and it is not possible to conduct a detention review before the offender’s statutory release date, the Board will conduct an interim review to avoid loss of jurisdiction.
9. Interim reviews will be conducted within the applicable timeframe set out in subsection 129(5) of the CCRA.
10. In accordance with subsection 129(7) of the CCRA, the Board will determine, on the basis of all the information provided, whether a sufficient case is made to proceed with a detention review.
11. The Board may conduct a detention review immediately following the interim review if it is satisfied that:
    1. all relevant information is available and has been disclosed to the offender in accordance with Policy 1.4 (Disclosure of Information to Offenders);
    2. the procedural safeguards have been met; and
    3. the offender agrees to proceed with the review.
12. In cases where the detention review is not conducted immediately following the interim review, it must be conducted as soon as practicable but no later than four weeks after the case was referred to the Board, unless the offender requests a postponement.
13. Guidance on postponing reviews is provided in Policy 10.4 (Postponements).

Decision-Making Criteria and Process

14. Board members will assess all relevant available information in accordance with Policy 2.1 (Conditional Release Decision-Making) to determine whether the legal criteria for the decision under review are met.
15. In accordance with subsection 130(3) of the CCRA, the Board may order detention where it is satisfied:
    
    1. in the case of an offender serving a sentence for an offence set out in Schedule I of the CCRA, or for an offence set out in Schedule I of the CCRA that is punishable under section 130 of the National Defence Act, that the offender is likely, if released, to commit, before the expiration of their sentence according to law:
       1. an offence causing the death of or serious harm to another person; or
       2. a sexual offence involving a child;
    2. in the case of an offender serving a sentence for an offence set out in Schedule II of the CCRA, or for an offence set out in Schedule II of the CCRA that is punishable under section 130 of the National Defence Act, that the offender is likely, if released, to commit a serious drug offence before the expiration of their sentence according to law; or
    3. in the case of an offender whose case was referred to the Chairperson by the Commissioner pursuant to subsection 129(3) or 129(3.1) of the CCRA, that the offender is likely, if released, to commit before the expiration of their sentence according to law:
       1. an offence causing the death of or serious harm to another person;
       2. a sexual offence involving a child; or
       3. a serious drug offence.
16. In determining whether an offender is likely to commit an offence causing the death of, or serious harm to another person; a sexual offence involving a child; or a serious drug offence, Board members will consider all relevant factors, including those listed in section 132 of the CCRA.
17. Reliable information about the offender’s sexual preferences for the purposes of paragraph 132(1.1)(b) of the CCRA may include, but is not limited to, information in the offender’s criminal history, in psychological reports or from victims that demonstrates recurring sexual victimization involving children under the age of 18.
18. Detention reviews will be conducted within the applicable timeframe set out in subsection 160(2) of the CCRR, unless the offender requests a postponement.

Determining Serious Harm

19. When conducting a detention review, Board members will determine whether the offender caused serious harm to a person by considering all relevant factors, including, but not limited to:
    1. whether the offence resulted in a physical or psychological disability, incapacitation, disfigurement, or long-term reduction in quality of life;
    2. the extent of injury to the victim, as indicated by medical care sought or required;
    3. the nature of the offence and the circumstances surrounding it, and in particular whether it involved brutality, excessive force, gratuitous violence, or deviant sexual behaviour;
    4. the use of a weapon to harm or threaten the victim;
    5. whether the victim was subject to prolonged or repeated abuse or terror; and
    6. any particular vulnerability of the victim.

Statutory Release

20. In cases where the Board determines that the criteria for detention set out in subsection 130(3) of the CCRA are not met, the offender will be released on statutory release.
21. Guidance on imposing, varying and removing special conditions, as well as varying and relieving from compliance with standard conditions is provided in policies 6.1 (Release Conditions) and 6.2 (Statutory Release – Residency Condition).

One-Chance Statutory Release

22. In accordance with subsection 130(4) of the CCRA, in cases where the Board does not order detention, it may order a one-chance statutory release if it is satisfied that:
    1. at the time the case was referred to the Board, the offender was serving a sentence that included a sentence for an offence set out in Schedule I or II of the CCRA, or for an offence set out in Schedule I or II of the CCRA that is punishable under section 130 of the National Defence Act; and
    2. in the case of an offence set out in Schedule I of the CCRA, or an offence set out in Schedule I of the CCRA that is punishable under section 130 of the National Defence Act, the commission of the offence caused the death of, or serious harm to, another person or was a sexual offence involving a child.
23. In determining whether to order a one-chance statutory release, Board members will consider all relevant factors, including, but not limited to:
    1. the history of the offender’s re-offending, suspensions or revocations on conditional release;
    2. any record of repeated convictions for similar offences;
    3. the offender’s responsivity to programs and interventions; and
    4. the extent to which the offender’s release plan and community supervision strategies minimize the risk of a future violent offence, a sexual offence against a child or a future serious drug offence.

After an Additional Sentence

24. In accordance with subsection 130(3.2) of the CCRA, in cases where the Board has ordered detention and the offender receives an additional sentence resulting in a new warrant expiry date that is later than the warrant expiry date in effect when the detention was ordered:
    1. the Board will review the detention order within one month of the date the Board is notified of the additional sentence if the offender’s new statutory release date has passed or is within nine months; or
    2. the detention order is cancelled if the offender’s new statutory release date is nine months or more after the date the offender received the additional sentence.
25. In cases where the Board reviews the detention order pursuant to paragraph 130(3.2)(a) of the CCRA, it will:
    1. confirm the order to prevent the release of the offender until the expiration of the sentence for which the detention order was made; or
    2. amend the order to prevent the release of the offender until the new warrant expiry date.
26. A full review of the case is not required given that the detention order is still in effect and that, pursuant to subsections 131(1) and 131(1.1) of the CCRA, a full review will be conducted within either one or two years after the date that the detention was ordered or the detention order was confirmed.

Annual and Biennial Reviews of Detention Orders

27. The Board may review a detention order at any time and must do so within:
    1. one year after the order was made, and within one year after the date of each subsequent review, pursuant to subsection 131(1) of the CCRA; or
    2. two years after the order was made, and within two years after the date of each subsequent review, in cases where the detention order relates to an offender serving a sentence for an offence set out in Schedule I of the CCRA that caused death or serious harm, pursuant to subsection 131(1.1) of the CCRA.
28. Board members will determine whether there is sufficient new information concerning the offender to justify modifying the order or making a new order.
29. In cases where the Board ordered detention with the understanding that a review of the detention order would be conducted upon the offender’s successful completion of a program or intervention, Board members should assess the offender’s progress in addressing their risk factors and needs.
30. Pursuant to subsection 131(3) of the CCRA, on completing a review of a detention order, the Board will:
    1. confirm the detention order;
    2. order the statutory release of the offender subject to the condition that the offender reside in a community-based residential facility (CBRF), a psychiatric facility or, subject to subsection 131(4) of the CCRA, a penitentiary, where the Board is satisfied that the condition is reasonable and necessary in order to protect society and to facilitate the offender’s successful reintegration into society; or
    3. order the statutory release of the offender without such a residency condition.
31. Pursuant to subsection 130(6) of the CCRA, in cases where the Board orders the statutory release of the offender, the release is a one-chance statutory release.

Statutory Release Order Subject to a Residency Condition Following a Period of Detention

32. In determining whether to order the statutory release of the offender subject to a residency condition, Board members will consider all relevant factors, including, but not limited to whether:
    1. the offender requires a gradual reintegration into the community; and
    2. accommodation is identified as a risk-related need and a residency condition would address that need.

Residency in a Psychiatric Facility or a Penitentiary

33. When reviewing whether to order that the offender reside in a psychiatric facility or penitentiary, Board members should consider that a psychiatric facility or penitentiary may offer limited access to the community and:
    1. should only be used when the offender will benefit from treatment programs that will assist in the management of risk and facilitate the offender’s successful reintegration in the community; and
    2. should be part of a multi-stage plan leading to residency in a CBRF or to statutory release without a residency condition.

Annual and Biennial Reviews of Statutory Release Orders Subject to a Residency Condition

34. The Board may review a statutory release order subject to a residency condition at any time, and must do so within:
    1. one year after the order and within one year after the date of each subsequent review; or
    2. two years after the order and within two years after the date of each subsequent review, if the order relates to an offender serving a sentence for an offence set out in Schedule I of the CCRA that caused death or serious harm.
35. Pursuant to paragraph 131(3)(b) of the CCRA, on completing a review of a statutory release order subject to a residency condition, the Board will:
    1. confirm or modify the order; or
    2. order the statutory release of the offender without such a residency condition.

Decision and Reasons

36. Guidance on providing reasons for decision is provided in Policy 2.1 (Conditional Release Decision-Making).
37. The reasons for decision will also include:
    1. information on the availability of supervision programs that would protect the public and assist in managing the risk the offender might otherwise present, if applicable; and
    2. a review of all factors listed in subsections 132(1), 132(1.1) and/or 132(2) of the CCRA that are relevant to the case.

Cross-References

38. Decision-Making Policy Manual

    1.3 Psychological and Psychiatric Assessments

    1.4 Disclosure of Information to Offenders

    2.1 Conditional Release Decision-Making

    6.1 Release Conditions

    6.2 Statutory Release – Residency Condition

    6.3 Leave Privileges

    9.1 Hearings

    9.1.1 Culturally Responsive Hearings

    10.3 Adjournments

    10.4 Postponements

39. Correctional Service of Canada Commissioner’s Directives (CD)

    CD 705-8 Assessing Serious Harm

    CD 712-2 Detention