Correctional Service Canada
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Recent Legal Opinions
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A Warden cannot reactivate a punishment which was suspended by the Independent Chairperson. There is
nothing in the Penitentiary Service Regulations which allows the Warden to reactivate a suspended
sentence ordered by the Disciplinary Court. In fact, the Regulations provide a specific mechanism
of reactivation of the punishment which is: If the inmate is found guilty of another intermediary or
serious misconduct during a specified period not exceeding 90 days from the date of the order suspending
the punishment for an intermediary or serious misconduct, the court shall order that the
suspended punishment be carried out. According to Commissioner's Directive 520, the Earned Remission Board (E.R.B.) should award remission for an inmate's total performance during a month. In respect of disciplinary offences, the behaviour leading to a charge should be assessed by the E.R.B. in the month in which the behaviour occurred, not in the month in which a conviction is registered. This is because the E.R.B. examines behaviour and not the offence, per se, and the question of remission is separate from the disciplinary process, according to the decision of the Federal Court of Appeal decision in Knockaert. The Correctional Service of Canada (CSC) should not transfer an inmate subject to a Lieutenant Governor's warrant from the institution specified in the warrant. Where an inmate is to be moved, provincial authorities should be contacted in order to have the location named on the warrant changed. In addition, in Lingley v. Lieutenant's Advisory Review Board of New Brunswick, the Federal Court expressed the view that once an inmate is moved to another province the Lieutenant Governor in the sending province no longer has jurisdiction over that individual. Therefore, before an inmate is moved to another province, it would be advisable to contact the appropriate officials in the new province to ensure that they will agree to accept jurisdiction over the inmate for the purposes of an annual review under the Lieutenant Governor's warrant. As a result of questions concerning access to the Court of Appeal it was determined that an appellant who is in custody is entitled, if he or she desires, to be present at the hearing of his or her appeal; see section 688(2) Criminal Code of Canada RSC 1985 (formerly section 615) and subsection 19(3) Penitentiary Act. However, an appellant who is in custody and who is represented by counsel is not entitled to be present: (a) where the appeal is on a ground involving a question of law alone, (b) on an application for leave to appeal, or (c) on any proceedings that are preliminary or incidental to an appeal, unless rules of court provide that he or she is entitled to be present or the court gives him or her leave to be present. |
