FORUM on Corrections Research

Recent Court Decisions

The following are summaries of five recent court decisions dealing with various issues involving the Correctional Service of Canada. These summaries are provided for your information and convenience. As these extracts are not complete, however, you should refer to the actual opinion or document or consult with Legal Services at national headquarters concerning the specific interpretation or applicability of any opinion or decision cited.

If you have any questions about these or other related matters, please contact Mark Zazulak, General Counsel, Department of Justice, Legal Services, Correctional Service of Canada, 4A - 340 Laurier Avenue West, Ottawa, Ontario K1A 0P9. Wesley Crowe v. Her Majesty the Queen The issue in this case was whether a native inmate had been discriminated against on the basis of race, contrary to section 15 of the Charter of Rights and Freedoms, when he was denied an escorted temporary absence to attend his son's funeral. The inmate also claimed there was systemic discrimination by the Correctional Service of Canada against native people as a group.

Section 15 of the Charter prohibits discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

The Trial Division of the Federal Court of Canada held that there was no evidence that racial discrimination was the reason the temporary absence was denied. The inmate, Crowe, was serving his fifth federal term for a series of violent offences; he was not long into the term and had committed a number of institutional offences. The Court ruled that it was the inmate's security profile that led to the denial, not his native ancestry.

The Court also dismissed the claim of systemic discrimination. Cullen J. noted that the Correctional Service of Canada had taken many actions to eliminate disadvantages faced by native inmates: "...the expeditious manner in which CSC has responded to the needs of native Indian prisoners is impressive. Thus a court, and certainly this Court, would be hard-pressed to find a basis for stating that native Indian prisoners' rights under the Charter have been violated." Robert Cunningham v. Her Majesty the Queen, the Crown and the Commissioner of the Correctional Service of Canada In Cunningham, the Supreme Court of Canada dismissed the arguments that the detention provisions of the former Parole Act, when applied to persons sentenced to imprisonment before the detention provisions became law, violated the inmate's rights under section 7 of the Charter. The Court also dismissed the further contention that the Commissioner of the Correctional Service of Canada acted unlawfully in referring Cunningham's case to the National Parole Board.


Section 7 of the Charter provides everyone with the right to life, liberty and security of the person. No one can be deprived of these rights except 'in accordance with the principles of fundamental justice."

The Court found that although the inmate did suffer a deprivation of liberty, his liberty was limited only to the extent necessary to protect the public. Therefore, this was not contrary to the principles of fundamental justice because the Act and Regulations provided for a hearing, representation and future hearings to review the detention. These requirements provide safeguards against arbitrary detention orders and ensure that a detention occurs only when required to protect the public, and then only after the prisoner's interests in obtaining release have been fully and fairly examined.

The Court further found that although file information also formed the basis for the referral, the Commissioner should not be precluded from relying on new and revised reports when they come to his or her attention within the six-month prerelease period. According to the Court, it would be an unusual case when information coming forward during this period did not have echoes and origins in previous reports. Lord v. the Correctional Service of Canada and Warden of Matsqui Institution The Trial Division of the Federal Court of Canada upheld the Warden of Matsqui Institution's decision to deny Lord visits with his son who was serving a life sentence at Matsqui. The visits were stopped because of allegations that Lord had acted in a "disrespectful and abusive" fashion toward institutional staff. Written reasons for the Warden's decision had been provided to Lord.

Pinard J. found that "the decision was made under competent authority and in good faith, and that the applicant was treated most fairly." The Court also found no Charter breach, saying "...a visitor to an inmate in a prison cannot have unrestricted freedom of association. The association rights must be subject to the necessity of preservation of security of the institution." Bell v. National Parole Service Bell was released on statutory release with an additional condition banning the use of intoxicants. Pursuant to section 55 of the Corrections and Conditional Release Act (CCRA), urinalysis was demanded at regular intervals to ensure that Bell was obeying the extra condition. It was argued that reasonable grounds to believe Bell was breaching the condition were necessary to justify such a search and seizure. Melvin J. of the Supreme Court of British Columbia found that while section 54(a) of the CCRA requires "reasonable grounds" to justify a demand, section 55 of the CCRA does not. He therefore dismissed the application. Frankie v. Her Majesty the Queen Frankie was on a parole suspension when the Corrections and Conditional Release Act came into force. His parole was revoked 13 November 1992.

The following issues arose:

• Was Frankie entitled to credit for remission he earned while serving his sentence (which would have been forfeited upon suspension or revocation under the Parole Act)?
• Was he entitled to remission earned while on suspension until the new Act came into force?
• From what date should the two thirds of the unexpired portion of his sentence be calculated - the date of reincarceration on suspension or of revocation?

The Federal Court of Appeal held that the inmate was not entitled to any remission credit toward the portion of his sentence remaining following revocation. Section 138 clearly states that inmates are required to serve two thirds of the balance of their sentence at the date of revocation. There is no allowance in the Act for subtracting remission from this balance. The date for calculating the two thirds is the date of revocation. Despite the fact that the French wording is not the same as the English, it is clear even from the French version that the date of reincarceration refers to reincarceration following revocation, and not the date of suspension.