Prisons - Parole

. 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.