17. (1) Temporary absences may be authorized - Where, in the opinion of the institutional head,

an inmate will not, by reoffending, present an undue risk to society during an absence authorized under this section,

it is desirable for the inmate to be absent from penitentiary, escorted by a staff member or other person authorized by the institutional head, for medical, administrative, community service, family contact, personal development for rehabilitative purposes, or compassionate reasons, including parental responsibilities,

the inmate's behaviour while under sentence does not preclude authorizing the absence, and

a structured plan for the absence has been prepared,

the absence may, subject to section 746.1 of the Criminal Code, subsection 140.3(2) of the National Defence Act and subsection 15(2) of the Crimes Against Humanity and War Crimes Act, be authorized by the institutional head

for an unlimited period for medical reasons, or

for reasons other than medical,

for a period not exceeding five days, or

with the Commissioner's approval, for a period exceeding five days but not exceeding fifteen days.

      (2) Conditions - The institutional head may impose, in relation to a temporary absence, any conditions that the institutional head considers reasonable and necessary in order to protect society.

      (3) Cancellation - The institutional head may cancel a temporary absence either before or after its commencement.

      (4) Reasons to be given - The institutional head shall give the inmate written reasons for the authorizing, refusal or cancellation of a temporary absence.

      (5) Travel time - In addition to the period authorized for the purposes of a temporary absence, an inmate may be granted the time necessary to travel to and from the place where the absence is authorized to be spent.

      (6) Delegation to provincial hospital - Where, pursuant to an agreement under paragraph 16(1)(a), an inmate has been admitted to a hospital operated by a provincial government in which the liberty of patients is normally subject to restrictions, the institutional head may confer on the person in charge of the hospital, for such period and subject to such conditions as the institutional head specifies, any of the institutional head's powers under this section in relation to that inmate.

[1992, c. 20, s. 17; 1995, c. 22, s. 13, c. 42, s. 7(F); 1998, c. 35, s. 108; 2000, c. 24, s. 34.]

Corresponding Regulations: Sections 9-10 Escorted Temporary Absences and Work Releases

Crowe v. Canada - (1993), 62 F.T.R. 177, [1993] F.C.J. No. 424 (F.C.T.D.)

- This was an action filed against the government by an Aboriginal inmate who was refused an escorted temporary absence to attend his son's funeral held in the Piapot Reserve. The officer in charge of a penitentiary is authorized, where in his or her opinion it is necessary or desirable that an inmate be absent with escort for humanitarian reasons, to allow an absence from the institution for a period not exceeding five days. The granting of an ETA for humanitarian reasons is within the discretion of the officer in charge and as such, is reviewable on the basis of insuring that the officer in charge exercises his discretion fairly and in an even handed manner, taking into account all relevant factors. However, the action before the court was not an application for judicial review but an action for a declaration that section 28 of the Penitentiary Act was being applied, in the case of Native and Aboriginal inmates, in an unequal manner having regard to their race and therefore in a manner inconsistent with section 15 of the Charter. The court ruled that no case had been made to establish race as a basis for the refusal to grant an ETA. Systemic discrimination of the plaintiff was not at all evident, given the improvements made and anticipated. Even the legislation had been amended to give better direction to officials about Parliament's intention. Accordingly, the action was dismissed.

Jesso v. Canada - (1993), 62 F.T.R. 128, [1993] F.C.J. No.239 (F.C.T.D.)

- The administrative decision of the prison authorities to revoke the wall clearance of an inmate was not made unfairly or arbitrarily, but rather in accordance with the clear and unequivocal provisions of Standing Order 562-3 issued for the effective internal management of the institution. Following a general institutional review of wall clearances, the privileges of J and another inmate were revoked temporarily due to non-compliance with Standing Order 562-3. J complained internally concerning this revocation and subsequently received written reasons from a senior official in CSC and from the Warden of Kingston Penitentiary confirming that his status as a detained inmate rendered him ineligible for wall clearance. Nothing in the facts of this case reveals any unfairness or arbitrariness in the decision revoking the wall clearance privileges of J. The application for judicial review was dismissed.

Crook v. Canada (National Parole Board) - (1995), 102 F.T.R. 62, [1995] F.C.J. No.1335 (F.C.T.D.)

- An inmate challenged the National Parole Board’s decision to refuse the approval of two escorted temporary absences, despite the fact that the inmate's case management supervisor and the warden both recommended that the ETAs be granted. The inmate had already successfully completed an ETA. The basis of the Board’s decision was that the requested ETAs set a pattern which cumulatively constituted a program not contemplated by legislation or board policy so far in advance of eligibility for day parole or full parole – the inmate’s eligibility for full parole was still 10 years away. In the inmate's view the statute did not directly deny the application and there was no Board policy statement that so provides. While the court agreed with that, it was not persuaded that the Board is precluded, in the absence of criteria set by s747 of the Criminal Code, from considering its general policies and applying those in assessing an application for an ETA submitted for its approval under the Code. By considering those policies the Board did not fetter its discretion or err in law in the exercise of its jurisdiction. The application was dismissed.

Govereau v. Canada - (1998), 149 F.T.R. 302, [1998] F.C.J. No.682 (F.C.T.D.)

- An inmate was refused an escorted temporary absence to visit his seriously ill wife, and denied an alternative request asking prison authorities to arrange a stand-by supply of oxygen in the event his wife's personal supply should run out during her visit to the prison. As a result, the inmate filed an action against the government claiming that this denial of a means to visit constituted a breach of Charter rights, the CCRA and fair play. As a plaintiff, the inmate sought damages as a deterrent, together with declaratory relief, which would allow him to obtain temporary escorted passes in order to visit his wife in an effort to both maintain family ties and to foster mutual support. The government asked the court to strike the statement of claim, submitting that most of the relief sought is declaratory and ought to be by way of judicial review. The application was granted, in part. The plea for declaratory relief was clearly not a ground for striking out the present Statement of Claim for the court could not say that the Plaintiff's claim, although not an easy one to establish, was one so forlorned that it ought to be struck out. Indeed, the Plaintiff may well have Charter rights, for example, as to his treatment or punishment that could conceivably give rise to a remedy under Section 24 of the Charter. Further, there might be some declaratory relief available that would be of value and have practical effect. However, the decision by prison officials not to grant the inmate an ETA, and the inmate’s request for protection from reprisals by prison officials, were the proper subject of a judicial review application. They were struck from his claim. The inmate was permitted to amend his claim in order to seek general and punitive damages stemming from his alleged rights violations.

Steele v. Canada (National Parole Board) - [1998] F.C.J. No.1428 (F.C.T.D.), 1998 CanLII 8610 (F.C.)

- This application was for the judicial review of a decision of the National Parole Board dated November 13, 1996, to the effect that the inmate applicant was not entitled to escorted temporary absences. Subsection 17(1) of the Corrections and Conditional Release Act provides that the warden of a penitentiary may authorize and grant temporary absences to an inmate under certain conditions. Section 746.1 of the Criminal Code stipulates that no absence without escort may be authorized, except with the approval of the Board, in respect of a person sentenced to imprisonment for life, without eligibility for parole, until the expiration of all but three years of the specified number of years of imprisonment. Clearly, section 746.1 did not apply to this inmate who has been incarcerated since January 18, 1985, with a parole ineligibility of ten years. Thus, it was not for the Board but for the institutional head to decide whether or not escorted temporary absences ought to be granted. Consequently, the Board was not exercising a jurisdiction provided by a federal act and was therefore "not acting as a federal board, commission or other tribunal" within the meaning of sections 2, 18 and 18.1 of the Federal Court Act. It follows that the "decision" of the Board is not a decision reviewable by this Court.

R v. Knoblauch - (2000), 149 C.C.C. (3d) 1, 37 C.R. (5th) 349, 192 D.L.R. (4th) 193, [2000] 2 S.C.R. 780, [2000] S.C.J. No.59 (S.C.C.)

- Under the CCRA, temporary absences may be authorized (s17). This makes abundantly clear that incarceration or imprisonment as a form of punishment is a regime that may not require a total restriction on freedom of movement.

McCabe v. Canada (Attorney General) - (2001), 33 Admin.L.R. (3d) 296, 42 C.R. (5th) 388, 199 D.L.R. (4th) 341, 204 F.T.R. 49, [2001] F.C.J. No.535 (F.C.T.D.)

- This was an application for judicial review of a recommendation made by the National Parole Board to the warden relating to the inmate's application for escorted temporary absences. Although Steele v. Canada (National Parole Board), [1998] F.C.J. No.1428 (FCTD) asserted that since the Board was not exercising a statutory power its recommendation was not a reviewable decision, such a restrictive interpretation would preclude review of ultra vires administrative acts that are the very subject of remedies provided for under section 18. Once a body is found to have powers conferred by an Act of Parliament all actions of that body affecting the rights of an individual are subject to judicial review. There was no merit to the argument that the Board's recommendation was not reviewable because it was not a "final decision that disposes of a substantive question". Non-dispositive decisions are reviewable if they affect the subject's interests. The recommendation was sufficiently prejudicial to the applicant's interests to warrant judicial scrutiny. No provision of the CCRA grants the Board power to conduct hearings, review evidence, find facts or issue recommendations with respect to requests for ETAs. Subsection 17(1) clearly gives the institutional head the decision-making authority subject to the caveat in Criminal Code, section 746.1. That provision did not apply in this case because the requested ETA would not occur more than three years before the specified number of years of imprisonment. There is no statutory requirement under such circumstances for the institutional head to obtain the Board's approval with respect to an ETA application. Pursuant to CCRA, subsection 144(2) the Board may release its decisions to the public subject to certain conditions. Since the Board's recommendation was not a "decision" it should not have been released to the media.