Prisons - Parole

. Brick v. Canada (Attorney General)

In Brick v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal of a JR, here brought against "a decision of the Parole Board of Canada – Appeal Division (Appeal Division) maintaining the continued detention of the appellant" [the paragraph numeration is misapplied as per the Canlii original].

Here the court illustrates parole 'detention review' issues leading to proceedings before the Parole Board of Canada – Appeal Division:

[3] Mr. Brick had been serving a sentence of 5 years, 5 months, and 20 days for various offences including aggravated assault since August 28, 2019. In December 2022, he was convicted of second-degree murder, bringing with it an indeterminate sentence. When the Court of Appeal for Saskatchewan quashed Mr. Brick’s second-degree murder conviction on Thursday, September 14, 2023 and ordered a new trial, Correctional Service Canada (Service) recalculated his new eligibility dates and confirmed them to Mr. Brick on Friday, September 15, 2023; in particular, Mr. Brick’s statutory release date reverted to April 22, 2023—a date which had by then passed—and his warrant expiry date to February 16, 2025.

[4] As a result of the change in Mr. Brick’s statutory release date due to the recalculation, and believing on reasonable grounds that Mr. Brick was likely, before the expiration of his sentence, to commit an offence causing death or serious harm to another person, the Acting Senior Deputy Commissioner of the Service (Commissioner) referred Mr. Brick’s case to the Chairperson of the Board (Chairperson) on Tuesday, September 19, 2023 for detention review in accordance with paragraph 129(3)(b) of the Act (referral for detention). As Mr. Brick’s statutory release date had by then passed, subsection 129(3.1) of the Act required that the referral be made within two working days after the recalculation under paragraph 129(3)(b). In fact, the Commissioner’s Directive 712-2, at paragraph 45, provides that where as a result of a recalculation of sentence, the statutory release date has passed, jurisdiction for a detention referral will be lost, resulting in an inability to refer an offender for detention, if, amongst other reasons, the referral to the Board is not submitted within two working days after recalculation.

[5] Mr. Brick did not seek judicial review of the referral for detention. He would however eventually argue before the Board and the Appeal Division that recalculation under paragraph 129(3)(b) and subsection 129(3.1) of the Act took place on Thursday, September 14, 2023, as a function of what Mr. Brick characterizes as the change in sentence resulting from the Court of Appeal for Saskatchewan’s decision quashing his second-degree murder conviction. Thus, Mr. Brick contends that by the following Tuesday, the Commissioner had lost jurisdiction to refer the matter to the Chairperson; as a result, the referral for detention was invalid and the Board was without jurisdiction to conduct the detention hearing.

[6] An interim hearing of the Board was held on September 22, 2023, during which the Board ordered a regular detention hearing (detention hearing) and for Mr. Brick to remain in custody pending his detention review. Subject to the limitation imposed by subsection 140(4) of the Act, subsection 140(7) of the Act allows for an offender to be assisted by a person of his choice during a hearing at which the offender is present. Prior to his detention hearing before the Board, Mr. Brick retained a lawyer to act as his hearing assistant. Mr. Brick’s hearing assistant sought disclosure from the Service of the material that accompanied the referral for detention sent to the Chairperson (disclosure material). Subsection 141(1) of the Act provides that at least fifteen days prior to a detention hearing, the Board shall provide or cause to be provided to the offender, in writing, the information that is to be considered in the review of the case or a summary of that information. The Service refused to provide the disclosure material directly to Mr. Brick’s hearing assistant, taking the position that disclosure would be provided directly to Mr. Brick, who would then be charged $1 per page by the Service, as part of its administrative process, to fax the pages Mr. Brick selected to be sent to his hearing assistant (disclosure process). Mr. Brick argued that this process compelled him to assess the relevance of the documents given the significant financial cost imposed by the Service, to decide which documents to have sent to his hearing assistant.

[7] Unable to obtain the disclosure material directly from the Service during October and early November, except through the prescribed disclosure process, Mr. Brick’s hearing assistant wrote to the Board on November 6, 2023 (November 6, 2023 letter), arguing that the Service’s disclosure process hindered his ability to provide Mr. Brick with adequate legal advice in advance of the hearing, and compromised Mr. Brick’s rights to procedural fairness and to legal counsel under section 7 of the Charter. The hearing assistant requested that the Board intervene and direct the Service to provide his office with a copy of the material that was before the Board. In response, the Board explained that the Service conducts the disclosure requirements under the Act on behalf of the Board, and that consequently, Mr. Brick’s hearing assistant was encouraged to address the matter directly with the Service.

[8] The dispute over the Board’s disclosure obligations led to Mr. Brick’s detention hearing being postponed, eventually taking place on December 20, 2023. During oral submissions before this Court, Mr. Brick conceded that the disclosure obligations of the Board towards him under subsection 141(1) of the Act were fulfilled prior to his detention hearing. However he argues that such disclosure was hindered by the "“roadblock”" of the fax charges, which he claims violated principles of fundamental justice and his right to counsel. Accordingly, Mr. Brick contends that the obligation of disclosure under subsection 141(1) of the Act should extend to his hearing assistant when that individual is also his legal counsel, and that a failure to do so constitutes a breach of his right to procedural fairness and right to counsel under the Charter.

[9] I should note that the fax charges, totalling over $175 and debited from Mr. Brick’s account, were eventually reimbursed to him in late November or December 2023, following his complaint against the Service in relation thereto. Mr. Brick accepted during questioning by the Court that once reimbursement was made and the "“roadblock”" removed, he could have requested that full disclosure materials be sent to his hearing assistant. However, as his counsel pointed out, it is unclear from the evidence whether Mr. Brick was aware of this option prior to the detention hearing. There is also nothing in the record regarding the nature or manner in which the disclosure process was undertaken by the Service other than Mr. Brick saying that he was being charged a $1 per page fax charge and that at some point in late November or early December 2023 the charges were reimbursed.

[10] Thus, the two issues at the core of this appeal, when it was instituted, were whether the Board had the jurisdiction to conduct the detention hearing within the time limit specified in subsection 129(3.1) of the Act (the jurisdiction issue) and whether Mr. Brick’s right to disclosure under section 141(1) of the Act extends to his hearing assistant when that individual is also acting as his legal counsel (the disclosure issue).

[11] The record includes an audio recording of the detention hearing before the Board held on December 20, 2023, which confirms that the hearing assistant raised the jurisdiction issue during his oral submissions before the Board—what he referred to as a fundamental jurisdictional issue—but that he did not raise the disclosure issue, either as a matter of procedural fairness or as a breach of Mr. Brick’s right to counsel under section 7 of the Charter. On December 28, 2023, the Board rendered its decision (the Board’s decision), determining that Mr. Brick continued to pose a risk to the community if released and ordering that he be held in confinement until the expiration of his sentence or until the Board directs otherwise. Regarding the jurisdiction issue, the Board determined that recalculation took place on Friday, September 15, 2023. Accordingly, the referral for detention made on Tuesday, September 19, 2023 was timely, and the Board possessed the necessary jurisdiction to proceed with the detention hearing. Although the Board acknowledged in its reasons the letter of November 6, 2023, in which the disclosure issue was raised by Mr. Brick in the context of seeking the Board’s intervention with the Service, it did not address the disclosure issue in its decision.

[12] On appeal of the Board’s decision, although Mr. Brick did not raise the disclosure issue during his oral submissions to the Board, he raised it in his written submissions to the Appeal Division. Relying on the November 6, 2023 letter, Mr. Brick took issue with the Board’s failure to address the disclosure issue and argued that the disclosure process obstructed his right to access fulsome legal advice by requiring him to assess the relevance of documents himself, and to choose which documents to be sent to his hearing assistant, all while facing significant costs imposed by Service. As a result, argued Mr. Brick, his hearing assistant was never able to obtain a complete understanding of record before the Board, either prior to or during the hearing.

[13] On April 5, 2024, the Appeal Division upheld the Board’s decision. Regarding the jurisdiction issue, the Appeal Division determined that the recalculation of Mr. Brick’s statutory release date under paragraph 129(3)(b) and subsection 129(3.1) of the Act occurred on Friday, September 15, 2023, when the Service undertook the process of recalculating, updated the sentence in its computer system, and established the new release date. In addition, the Appeal Division addressed the disclosure issue as one of procedural fairness and fundamental justice. It concluded that Mr. Brick was not denied procedural fairness regarding access to legal counsel under the circumstances, noting that if Mr. Brick believed he lacked access to key documentation prior to his hearing, he had the opportunity to request a postponement, which he did twice in this case. The Appeal Division’s reasons did not reference the Charter—in fairness, possibly due to how the issue was framed and argued in the submissions before it.

. Inlakhana v. Canada (Attorney General)

In Inlakhana v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal considered an unusual Charter s.11(i) ["11(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment"] appeal. Here a prisoner was able to apply Charter 11(1) to her case when parole eligibility stiffened between the commission of her offence and the sentencing. She sought to sue [for "false and unlawful imprisonment, negligence and Charter-related infringements"] for any administrative 'excess incarceration' [SS: my term] - that is, periods that she would have been paroled if the more favourable law had been applied seamlessly.

In the course of assessing whether the government owed a negligence 'duty of care' to the appellants, the court canvassed some aspects and practicalities of the parole eligibility process:

[9] The appellants argue that the motion judge erred by concluding that the respondent had not breached the standard of care, without first determining what the standard of care was in these circumstances. The difficulty with this submission is that there was simply no evidence of the standard of care in circumstances such as these, where the process for early parole commenced only after the detainee had passed the early parole date. While there was evidence to suggest that, in the normal course, the accelerated parole process commences 90 days in advance of the parole eligibility date, there was no evidence to support a different standard of care after a parole eligibility date has passed.

[10] Determining early parole or, indeed, any parole, does not involve a rubber stamp. It requires the Parole Board to have regard to numerous materials, in part reflected in s. 101(a) of the CCRA, with a view to determining whether the offender will present a risk of committing a violent offence if released into the community: Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392, at para. 2. This can take time, which is why, in the normal course, the process is set in motion 90 days in advance of the date when the offender would be eligible for early parole. In this case, it took just less than half of that time.

....

[14] Conditional release is governed under the CCRA. In particular, as mentioned earlier, s. 101(a) explicitly requires the Parole Board to take into consideration all manner of enumerated factors and information in “achieving the purpose of conditional release”. While Ms. Inlakhana’s release may have been, as the motion judge put it, “virtually a ‘sure thing’”, the decision about early release was that of the Parole Board and the Parole Board alone. While the information provided to the Board may have informed what it was likely to do, parole could not be granted until all the necessary information was provided to the Board and the Board was able to exercise its discretion in accordance with that information.