Temporary Absence

TEMPORARY ABSENCE

28. Escorted temporary absence - Where, in the opinion of the Commissioner or the member in charge of a penitentiary, it is necessary or desirable that an inmate should be absent, with escort, for medical or humanitarian reasons or to assist in the rehabilitation of the inmate, the absence may be authorized by
(a)	the Commissioner, 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; or
(b)	the member in charge, for a period not exceeding fifteen days for medical reasons and for a period not exceeding five days for humanitarian reasons or to assist in the rehabilitation of the inmate.
[RSC 1970 cP-6 s26; 1976-77 c53 s42; RSC 1985 c35 (2nd Supp) s18]

*Judicial Consideration* -

Toews et al v MacKenzie et al - [1980] 4 WWR 108, 18 BCLR 157, 109 DLR (3d) 473 (BCCA)
	- Where inmate on temporary absence permit drove automobile while under the influence of alcohol, causing serious injury to a passenger when the vehicle crashed, the warden who granted the pass was not liable to the passenger. Warden had exercised his statutory discretion in good faith, was not negligent in not investigating the inmate's behaviour more closely, and owed no duty of care to the passenger.

Ex Parte Kerswill - (1975), 28 CCC (2d) 362 (Ont HC)
	- An inmate granted a "temporary parole" by a certificate containing information and conditions for the purpose of completing a work project under supervision is granted parole or day parole by that certificate and not a temporary absence under this section.

Beaulieu v Rousseau - Unreported, December 14, 1987, Nos. T-2080-86 & T-2081-86 (FCTD)
	- Punishment in disciplinary court followed by loss of earned remission, private family visits, or escorted temporary absence passes does not raise the sort of double jeopardy situation that infringes s11(h) of the Charter.

29. (1) Where inmate transferred to provincial institution - Where, pursuant to an agreement made under subsection 22(1), 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 with escort from that institution, within the limits prescribed in paragraph 28(b), when the officer is delegated that authority by the member in charge of the penitentiary in which the inmate was last confined.
(2) Delegation of authority - For the purposes of subsection (1), the member in charge of a penitentiary may delegate the authority to grant temporary absences to the officer in charge of the provincial institution described in subsection (1) either generally or for specific cases. [1976-77 c53 s42; RSC 1985 c35 (2nd Supp) s26]

*Judicial Consideration* -

O'Brien v National Parole Board - (1984), 43 CR (3d) 10 (FCTD)
	- A request for an unescorted temporary absence does not raise a question of the deprivation of any constitutionally enshrined right of liberty, conditional or otherwise, such as might occur with the revocation of parole and its consequences on earned remission or the suspension of mandatory supervision. A request for a temporary absence is a request for the granting of a privilege. A distinction must be drawn between a denial affecting the expectation of enjoyment of some anticipated privilege of liberty and the deprivation of some right of liberty, presently existing and enjoyed, where such deprivation is contrary to fundamental justice. Consequently, an administrative decision to deny such a request does not constitute a deprivation of liberty under s7 of the Charter and consequently, the request and denial do not have to be dealt with in accordance with the principles of fundamental justice. However, once the Board elects to embark upon a hearing even though one is not legally required, it follows that such hearing must be conducted in accordance with the rudiments of natural justice and the common law duty to act fairly. Fundamental fairness dictates that the applicant be afforded an in-person hearing before all members of the Board who had to vote on his application. A failure to do so resulted in the decision denying the application for an unescorted temporary absence being quashed on certiorari and a new hearing before a full panel of Board members required to determine the merits of the application was ordered. In this case the applicant's request for an unescorted temporary absence required seven votes. Three members attended at the institution and gave him a hearing even though one was not legally required by the Act or Regulations. These three members voted in favour of granting the application. The matter was then referred to four other members who voted in absentia never having seen the applicant nor heard his plea but basing their decision on the file record. These four votes were decided against the applicant. The court held that the knowledge of these four members voting in absentia gleaned only from the written record without having heard the applicant in person must be deemed to be ignorance sufficient to proclude the exercise of any fair judgment upon the merits of the applications.
	See also MacDonald v National Parole Board -Unreported, March 17, 1986, No. T-2905-85 (FCTD) under the Parole Act, s6.
	See Cadieux v The Director of Mountain Institution and The National Parole Board (1984) 13 CCC (3d) 330 (FCTD) annotated under s6 of the Parole Act, where a decision of the Board cancelling a UTA program before it was implemented was quashed on certiorari because the parolee had not been told the gist of the case against him in violation of s7 of the Charter.

30. Repealed. - [RSC 1985 c35 (2nd Supp) 526]

31. Effect on date of release - Where an inmate is granted a temporary absence and the day on which he is due to be released falls within the period of that temporary absence, the inmate shall, for the purpose of all entitlements accruing to him on release, be deemed to have been released on the day on which the temporary absence commenced. 1976-77 c53 s42]
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