2. (1) Definitions - In this Part,

"Commissioner" means the Commissioner of Corrections appointed pursuant to subsection 6(1);

"contraband" means

an intoxicant,

a weapon or a component thereof, ammunition for a weapon, and anything that is designed to kill, injure or disable a person or that is altered so as to be capable of killing, injuring or disabling a person, when possessed without prior authorization,

an explosive or a bomb or a component thereof,

currency over any applicable prescribed limit, when possessed without prior authorization, and

any item not described in paragraphs (a) to (d) that could jeopardize the security of a penitentiary or the safety of persons, when that item is possessed without prior authorization;

"day parole" has the same meaning as in Part II;

"inmate" means

a person who is in a penitentiary pursuant to

a sentence, committal or transfer to penitentiary, or

a condition imposed by the National Parole Board in connection with day parole or statutory release, or

a person who, having been sentenced, committed or transferred to penitentiary,

is temporarily outside penitentiary by reason of a temporary absence or work release authorized under this Act, or

is temporarily outside penitentiary for reasons other than a temporary absence, work release, parole or statutory release, but is under the direction or supervision of a staff member or of a person authorized by the Service;

"institutional head", in relation to a penitentiary, means the person who is normally in charge of the penitentiary;

"intoxicant" means a substance that, if taken into the body, has the potential to impair or alter judgment, behaviour or the capacity to recognize reality or meet the ordinary demands of life, but does not include caffeine, nicotine or any authorized medication used in accordance with directions given by a staff member or a registered health care professional;

"long-term supervision" means long-term supervision ordered under paragraph 753.1(3)(b), or subparagraph 759(3)(a)(i), 759(4)(a)(ii) or 759(4.2)(a)(i) of the Criminal Code;

"Minister" means the Minister of Public Safety and Emergency Preparedness;

"offender" means

an inmate, or

a person who, having been sentenced, committed or transferred to penitentiary, is outside penitentiary

by reason of parole or statutory release,

pursuant to an agreement referred to in subsection 81 (1), or

pursuant to a court order;

"parole" has the same meaning as in Part II;

"penitentiary" means

a facility of any description, including all lands connected therewith, that is operated, permanently or temporarily, by the Service for the care and custody of inmates, and

any place declared to be a penitentiary pursuant to section 7;

"prescribed" means prescribed by regulation;

"sentence" means a sentence of imprisonment and includes a sentence imposed by a foreign entity on a Canadian offender who has been transferred to Canada under the International Transfer of Offenders Act and a youth sentence imposed under the Youth Criminal Justice Act;

"Service" means the Correctional Service of Canada described in section 5;

"staff member" means an employee of the Services;

"statutory release" has the same meaning as in Part II;

"victim"

means a person to whom harm was done or who suffered physical or emotional damage as a result of the commission of an offence, and

where the person is dead, ill or otherwise incapacitated, the person's spouse, an individual who is cohabiting, or was cohabiting at the time of the person's death, with the person in a conjugal relationship, having so cohabited for a period of at least one year, any relative or dependant of the person, or anyone who has in law or fact custody or is responsible for the care or support of the person;

"visitor" means any person other than an inmate or a staff member.

    (2) Exercise of powers, etc - Except as otherwise provided by this Part or by regulations made under paragraph 96(b),

powers, duties and functions that this Part assigns to the Commissioner may only be exercised or performed by the Commissioner or, where the Commissioner is absent or incapacitated or where the office is vacant, by the person acting in the place of the Commissioner; and

powers, duties and functions that this Part assigns to the institutional head may only be exercised or performed by the institutional head, or where the institutional head is absent or incapacitated or where the office is vacant, by the person who, at the relevant time, is in charge of the penitentiary.

[1992, c. 20, s. 2; 1995, c. 42, s. 1; 1997, c. 17, s. 11; 2000, c. 12, s. 88; 2002, c. 1, s. 171; 2004, c. 21, s. 39; 2005, c. 10, s. 34.]

Dumas v. Director of Leclerc Institution - (1987), 22 Admin. L.R. 205, 55 C.R. (3d) 83, 30 C.C.C. (3d) 129, [1986] 2 SCR 459, [1986] S.C.J. No.61 (S.C.C.)

- In the context of parole, the continued detention of an inmate will only become unlawful if he has acquired the status of a parolee. An inmate acquires that status as of the moment the decision to grant him parole takes effect. Thus, if parole is granted effective immediately, he becomes a parolee when the decision is rendered. If, for some reason, the restriction to his liberty continues, he may then have access to habeas corpus. If parole is granted effective at some later date, then the inmate acquires the status of parolee at that date and not at the date of the decision.

Prosyk v. Canada (National Parole Board) - (1993), 72 F.T.R. 219, [1993] F.C.J. No.1268 (F.C.T.D.)

- S2(1) of the CCRA defines "inmate" to include a person who is in a penitentiary pursuant to a sentence to a penitentiary as well as a person who, having been sentenced to a penitentiary, is temporarily outside a penitentiary but under the direction or supervision of a staff member. Thus, when, as in this case, a person is taken to Court from a penitentiary and returned after Court, he remains an inmate.

McWhinney v. Canada (Commissioner of Corrections) - (1996), 1 C.R. (5th) 116, 117 F.T.R. 81, [1996] F.C.J. No.1051 (F.C.T.D.)

- On 12 October 1994, M appeared before the National Parole Board with respect to his parole status. At the hearing, the Board granted full parole to M on the condition that he reside at Gunn Centre, a half-way house. The Board also stipulated that parole would be effective when bed space became available at Gunn Centre. Subsequent to this decision and while waiting for a bed to become available at the Gunn Centre, M was asked to provide a urine sample but did not comply because he feared his sample would be tampered with and he would be denied parole. Disciplinary action ensued and M's parole was cancelled. M submitted that s40 of the CCRA regarding discipline only applied to an "inmate," and since he had been granted full parole by order of the Board on 12 October 1994, he was not an "inmate" within the meaning of subsection 2(1) of the CCRA. The court disagreed and held M to be an "inmate" when the urine sample was demanded because the conditions of his parole had not yet been met. His full parole was granted but effective, in part, only when bed space was available at Gunn Centre. The court found that the clear intention of this provision was that M was to remain an "inmate" until a bed was not only available to him but that he actually occupied it.

Savard v. Canada (National Parole Board) - (1998), 132 C.C.C. (3d) 422, [1998] A.Q. No.3789 (Que.C.A.)

- Where an applicant sought the issuance of writ of habeas corpus with certiorari in aid in superior court, the Crown argued that NPB decision in question could not constitute deprivation of liberty because it rendered the appellant no longer an "inmate" within the meaning of the Act - s2(1) definition of "inmate." According to the Crown, the NPB decision transformed his status from an "inmate" into that of a "day parolee". This point of view did not concord, in the court's view, with the generous and flexible interpretation that must be given to the rules applicable to the habeas corpus remedy. The appellant is perhaps no longer an "inmate" within the meaning of the Act but he remains so under the meaning that this word must have in relation to habeas corpus matters. He is confined to the halfway house, except to carry out the community work that has been imposed on him. His movements are not absolutely free. He is in captivity, always in the hands of the State. He is in custody. The right to habeas corpus does not depend on the definition that Parliament has given to the word "inmate" ("détenu").

R v. Wood - (1999), 139 C.C.C. (3d) 468, 180 N.S.R. (2d) 110, [1999] N.S.J. No.347 (N.S.C.A.) [application for review dismissed 139 C.C.C. (3d) 475 (N.S.C.A.)]

- The statutory conditions of day parole require the parolee to return to a penitentiary, a community-based residential facility or a provincial correctional facility each night. The parolee is deemed to be serving the sentence of imprisonment while on day parole. That constitutes being in custody for the purposes of section 679 of the Criminal Code, which provides that a judge of the court of appeal may release an appellant from custody pending the determination of his appeal.

R v. Comsa - (2000), 2000 ABQB 854, 282 A.R. 108, [2000] A.J. No.1414 (Alta.Q.B.)

- C was serving a six year sentence which commenced on January 6, 1997. He was released on full parole on April 10, 2000 from Grierson Centre in Edmonton. On June 15, 2000, C was arrested on new and separate charges and taken into custody at the Edmonton Remand Centre. Thereafter, on June 16, 2000, a Warrant of Apprehension and Suspension of Full Parole was issued. On July 12, 2000, C was transferred from the Edmonton Remand Centre to Bowden Institution in Innisfail, Alberta. In this case, therefore, C was admitted to Bowden Institution on July 12, 2000, and in the court's view, it could not be argued on the evidence before it that C was an inmate of Bowden Institution during the period prior to his admission to that penitentiary and temporarily outside the penitentiary within the meaning of s2(1) of the Act. The court noted that C had been released on full parole from Grierson Centre in Edmonton.

Barnaby v. Donnacona Correctional Institution - (1995), 105 F.T.R. 64, [1995] F.C.J. No.1541 (F.C.T.D.)

- B was approaching the last few minutes of a 72-hour conjugal visit in one of the trailers reserved for that purpose, when he suffered a sudden fit or seizure. He was found lying on his back, seemingly choking and experiencing spasms of his limbs. Correctional officers were called, B was brought to his feet and then escorted to the infirmary, where he was examined by the duty nurse. The latter noted the B's aggressiveness, his struggle with the guards, his slurred speech, the redness of his eyes, his hesitant steps, all of which she found symptomatic of the effects of an intoxicant upon the body. The nurse, on the medical history of the applicant, could find no record of illness, no history of epileptic seizures, no prescribing of any medication which might create an abnormal state. The duty nurse, without conducting any blood or urine tests, then concluded that the B's abnormal state could not have been caused by anything other than an intoxicant. Despite the acknowledgement that the nurse's evidence was merely circumstantial, the court nevertheless held it to be sufficient to meet the standard of proof and dismissed an application for judicial review of the decision rendered by the disciplinary court finding B guilty of a breach of section 40(k) of the CCRA, which makes it an offence for an inmate to take an intoxicant into his or her body.

Mineau v. Port-Cartier Penitentiary - (1997), 129 F.T.R. 189, [1997] F.C.J. No.459 (F.C.T.D.) (French version)

- The court set aside a disciplinary conviction where an inmate was charged with the possession of an intoxicant. It is not sufficient for an officer to testify as to the texture and the odour given off by the product in order to establish that the product had the potential to impair or alter judgment, behaviour or the capacity to recognize reality, and so on, on the part of the person in possession of it. The officer's experience in this area and personal knowledge of alcohol could not substitute for scientific, technical or specialized testimony.

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, a "penitentiary" is a facility operated for the care and control of inmates by the Correctional Service of Canada and may include any prison, or any hospital, so designated by order of the Commissioner and any other place so designated by the Governor in Council (s2(1)). Under the Act, 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.

Wright v. Canada (Attorney General) - [1999] F.C.J. No.1304 (F.C.T.D.)

- Correctional officers prepared a report that referred to W's ex-fiancée as his victim. W contested the validity of that statement. While imprisoned, a marriage was planned and then cancelled as a result of his initiative. The ex-fiancée subsequently complained to the RCMP that the applicant had threatened her and that she feared for her safety. W alleges that these complaints were vindictive and were an attempt to make life difficult for him after he broke off their relationship. The ex-fiancée never filed a written complaint with the police, and subsequently refused to co-operate with the police on any investigation of her oral complaint against W. Correctional Services, however, had in its possession copies of the letters that formed the basis of the ex-fiancée's assertions. W stated that these should be placed in the context of the letters he received from her, and that the letters contain mutually explicit sexual material. The court stated that the term "victim" is defined in section 2 of the CCRA as a person who has suffered harm as a result of the commission of an offence, and intimated that the ex-fiancée was most likely not a victim as defined in the Act.

Zarzour v. Canada - (2000), 153 C.C.C. (3d) 284, 196 F.T.R. 320, 268 N.R. 235 [2000] F.C.J. No.2070 (F.C.A.)

- An inmate was awarded damages by the Trial Division where the CSC and the National Parole Board unlawfully provided information about his file to his ex-wife. The Trial Division held that she was improperly classified as a "victim" vis-à-vis the CCRA, namely "a person to whom harm was done or who suffered physical or emotional damage as a result of the commission of an offence." She was thus not entitled under sections 26 and 142 of the CCRA to the information in question. The Court of Appeal overturned the decision on the grounds that the ex-wife was entitled to the information she received pursuant to section 144. The Court of Appeal, however, did not directly contradict the Trial Division finding that the ex-wife was not a "victim" as defined by the CCRA.

Laliberté v. Canada (Correctional Service) - (2000), 181 F.T.R. 276, [2000] F.C.J. No.548 (F.C.T.D.)

- L made an application to participate in the private family visiting program so he could have the opportunity of having intimate relations with M. Both M and L were inmates in the same penitentiary. The court upheld the decision of the CSC to deny the request. In that decision the Assistant Commissioner arrived at the conclusion that the plaintiff could not participate in the private family visiting program as provided in Commissioner's Directive No. 770. The court found that although the meaning of the word "visiting" has not been given, Parliament in s2 has defined the meaning of the word "visitor" as excluding other inmates and staff members. Since this definition is included in the CCRA it follows, by legislative hierarchy, that the same definition applies to regulations adopted under the power conferred through s96 of the Act as well as to administrative directives adopted for the internal administration of penitentiaries. The court held that it thus inevitably followed that M could not be considered a visitor within the meaning of the Act, in view of his situation as an inmate. For reasons of internal consistency, M also could not be considered a visitor within the meaning of the Directive.

Mennes v. McClung - (2001), 2001 FCT 1349, [2001] F.C.J. No.1830 (F.C.T.D.)

- It was held that the Commissioner of Corrections had the authority to, and appropriately did, delegate to the Acting Assistant Commissioner the determination of the outcome of an inmate's grievance at the Third level. Sections 75-82 of the Regulations provide for the grievance process and there is clearly no requirement under the Act or the Regulations for the Commissioner of Corrections to individually or directly review complaints at the Third level appeal or at any other level. In addition, it would be impractical for the Commissioner of Corrections to have to review all the grievances made by every inmate in the country, at each level of appeal. The ultimate solution to this question is found in subsection 2(2) of the Act - the French version of this provision being more instructive than the English version.

2.1 Application to persons subject to long-term supervision order- A person who is required to be supervised by a long-term supervision order is deemed to be an offender for the purposes of this Part, and sections 3, 4, 23 to 27, 55 and 56, subsections 57(2) and 66(3), sections 68, 69, 76, 77 and 79 to 82, paragraph 87(b) and sections 90 and 91 apply, with such modifications as the circumstances require, to the person and to the long-term supervision of that person.

[1997, c. 17, s. 12.]