Temporary Absence Without Escort

Editorial Note - The Correctional Service of Canada has been advised by its counsel that wardens, superintendents, etc. have no authority to impose conditions on U.T.A. programs authorized by the National Parole Board. Sanctions imposed because of a violation of unauthorized conditions will not be valid. Conditions seen as necessary by an institutional head may be imposed by ensuring that the Board is made aware of the need for such conditions prior to the granting of the program; making the Board aware of the need alter the program has been approved and requesting imposition of the conditions; or requesting the Board to delegate authority to impose conditions in specific cases.

Sorgente v National Parole Board - Unreported, February 8,1991, No.T-178-91 (FCTD) (Butterworths No. 35355)

Randhawa v Warden of Matsqui Institution and National Parole Board - Unreported, August 8, 1990 No. CC900925, Vancouver Registry (BCSC)

Editorial Note - By the time the above order quashing the second decision was granted, the Unescorted Temporary Absence program granted by the National Parole Board had expired. Such programs are usually granted on a time-limited basis for four to six months duration. The Board did not reinstate the Unescorted Temporary Absence program from the date of the court decision. An attempt to have the court compel such reinstatement was also unsuccessful -see Her Majesty the Queen and Randhawa -Unreported, September 12, 1990, No. CC900925, Vancouver (BCSC). The following year, Randhawa was able to convince the National Parole Board to grant a new U. T.A. program which was implemented and shortly thereafter he was transferred to minimum security.

25.1 Definition of "inmate" - In sections 25.2 and 25.3, "inmate" means an inmate within the meaning of the Penitentiary Act
[RS 1985 c35 (2nd Supp) s13]

25.2 (1) Unescorted temporary absence - Subject to the regulations, where, in the opinion of the Board, it is necessary or desirable that an inmate should be absent, without escort, for medical or humanitarian reasons or to assist in the rehabilitation of the inmate, the absence may be authorized by the Board for an unlimited period for medical reasons and for a period not exceeding fifteen days for humanitarian reasons or to assist in the rehabilitation of the inmate.
(2) Board may delegate - The Board may, if it has determined that an inmate or a class of inmates is one for whom or which temporary absence without escort is appropriate, delegate its authority under subsection (1) in respect of that inmate or class of inmates to
(a)	the Commissioner, within the meaning of the Penitentiary Act or
(b)	the member in charge of a penitentiary in respect of a period of absence not exceeding fifteen days for medical reasons and in respect of a period of absence not exceeding three days for humanitarian reasons or to assist in the rehabilitation of the inmate,
subject to any conditions it deems advisable and for such period as it sees fit
[RS 1985 c35 (2nd Supp) s13]

Editorial Note - The Correctional Service of Canada has been advised by its counsel that wardens, superintendents, etc. have no authority to impose conditions on U.T.A. programs authorized by the National Parole Board. Sanctions imposed because of a violation of unauthorized conditions will not be valid. Conditions seen as necessary by an institutional head may be imposed by ensuring that the Board is made aware of the need for such conditions prior to the granting of the program; making the Board aware of the need alter the program has been approved and requesting imposition of the conditions; or requesting the Board to delegate authority to impose conditions in specific cases.

*Judicial Consideration* -

Sorgente v National Parole Board - Unreported, February 8,1991, No.T-178-91 (FCTD) (Butterworths No. 35355)
	- See annotation under Parole Act s16.

Randhawa v Warden of Matsqui Institution and National Parole Board - Unreported, August 8, 1990 No. CC900925, Vancouver Registry (BCSC)
	- At a hearing before the National Parole Board, the petitioner was refused parole but granted Unescorted Temporary Absence privileges. The order was immediately effective. However, the warden of the jail refused to implement the order. Instead, he sent the Board confidential information that was not before it at the original hearing. A second hearing was held following which the U.T.A. privileges werl3 cancelled. Since the Board relied on information from both hearings in reaching its conclusion, this second hearing was not de novo. Following the ruling in Chester v National Parole Board (1989) 48 CCC (3d) 506 (BCCA) (see annotation under s25 of the Parole Act at p479) , that the Parole Board does not have the power to reconsider its own concluded, recorded and communicated decisions, the judge here found that the Board had no implied or inherent jurisdiction to hold the second hearing and change its earlier decision. The second decision was, therefore, subject to certiorari and was quashed.
	The second issue is whether habeas corpus is available. It was decided in Dumas v Director of Leclerc (1987) 30 CCC (3d) 129 (SCC) (see annotation under s13 of the Parole Act at p41 0-411) that habeas corpus is available to challenge an unlawful deprivation of liberty. In the context of correctional law, there are three different deprivations of liberty: the initial deprivation of liberty, a substantial change in conditions amounting to further deprivation of liberty and a continuation of the deprivation of liberty. The privileges granted the applicant allowing him occasionally to be in the community on an unescorted basis can only be considered a substantial change from remaining full time in a prison. Consequently, habeas corpus is available. The prisoner's release was directed according to the original order.

Editorial Note - By the time the above order quashing the second decision was granted, the Unescorted Temporary Absence program granted by the National Parole Board had expired. Such programs are usually granted on a time-limited basis for four to six months duration. The Board did not reinstate the Unescorted Temporary Absence program from the date of the court decision. An attempt to have the court compel such reinstatement was also unsuccessful -see Her Majesty the Queen and Randhawa -Unreported, September 12, 1990, No. CC900925, Vancouver (BCSC). The following year, Randhawa was able to convince the National Parole Board to grant a new U. T.A. program which was implemented and shortly thereafter he was transferred to minimum security.

25.3 (1) Where inmate transferred to provincial institution - Where, pursuant to an agreement under subsection 22(1) of the Penitentiary Act, an inmate has been admitted to a provincially operated mental hospital or to any other provincially operated institution in which the liberty of the patients is normally subject to restrictions, the officer in charge of the provincial institution may permit temporary absences from that institution without escort when the officer is delegated that authority by the Board.
(2) Delegation of authority - For the purposes of subsection (1), the Board may if it has determined that an inmate or a class of inmates is one for whom or which temporary absence without escort is appropriate, delegate its authority to grant temporary absences without escort to that inmate or class of inmates to the officer in charge of the provincial institution referred to in subsection (1) subject to any conditions it deems advisable and for such period as it sees fit.
[RS 1985 c35 (2nd Supp) s13]
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