Commissioner

COMMISSIONER

5. Commissioner - The Governor in Council may appoint a member to be known as the Commissioner of Corrections who, under the direction of the Minister, has the control and management of the Service and all matters connected therewith. [RSC 1970 cP.6 s4; 1976.77 c53 s36; RS 1985 c35 (2nd Supp) s18]

*Judicial Consideration* -

R v Chester - (1984),5 Admin LR 111,40 CR (3d) 146 (sub nom Re Chester)(Ont HC)
	-Bearing in mind that s6 of the Penitentiary Service Regulations requires every member of the Service, which includes the institutional head, to familiarize himself with Commissioner's Directives, this section gives overall responsibility for the control and management of the Service and all matters connected therewith to the Commissioner and the powers of an institutional head under s38(4) of the Regulations cannot be construed so as to deprive or relieve the Commissioner and his Deputy from overall responsibility. Consequently, any Directives issued by the Commissioner in relation to dissociation do not conflict with the Act or Regulations.

R v Olson- (1990) 47 CCC (3d) 491 (SCC); aff'g (1988) 38 CCC (3d) 534, 64 OR (2d) 321, 22 OAC 287 (Ont CA)
	-This section does no more than recognize overall ministerial responsibility. It does not authorize the Solicitor General to order the segregation of a particular prisoner from the general population in a penitentiary. It does not confer authority or power on the Solicitor General to interfere with the rights or liberty of a particular prisoner. The Solicitor General has neither authority nor power to order that an inmate be held in segregation, dissociated from the general population in a prison. By statute and regulations, the authority to make such a decision resides exclusively in the "institutional head". In the circumstances, the court decided that the decision that the applicant should remain in administrative segregation was made by the institutional head. Hence, the individual's confinement was lawful.

6. Administration of Parole Service - The portion of the staff of the National Parole Board known as the National Parole Service shall be under the control and management of the Commissioner who, in addition to the duties described in section 5, is responsible, under the direction of the Minister, for the preparation of cases of parole and the supervision of inmates to whom parole has been granted or who have been released on mandatory supervision pursuant to the Parole Act. [SC 1976-77 c53 s37]

MacInnis v Canada (Solicitor General)- Unreported, July 11, 1990, T-1341-90 (FCTD)
	-Macinnis sought to compel the Correctional Service of Canada to facilitate and direct the completion of a psychiatric assessment, estimated to cost $5,000, to be used at his parole hearing. The Warden at Macinnis' institution asked the Board if they felt the applicant should be granted temporary absences so that the assessment could be completed. The court agreed that s6 of the Penitentiary Act makes the Commissioner of Corrections responsible for preparing parole cases, but the Act does not prohibit input from the Board concerning the preparation of cases. Further, if the Board is to effectively exercise its jurisdiction, collaboration with the CSC in preparing cases appears essential.

MacInnis v Canada (Solicitor General) et al- Unreported, July 5, 1991, No.T-1341-90 (FCTD)
	- The Applicant sought an order in the nature of mandamus, or a remedy under s24(1) of the Charter, compelling the Respondents to prepare his parole case as required under s6 of the Penitentiary Act by facilitating and directing the completion of an assessment by a doctor at an Ottawa Hospital. The issue to be decided was whether s6 of that Act obliges the warden of the penitentiary to send the Applicant for further testing in order to present the results of those tests to the Parole Board.
	In this case, various assessments of the applicant had been made, some positive, some negative. The Parole Board recommended than "outside" assessment be done and a referral was made. That referral resulted in the report the applicant sought to have completed. The report stated that the applicant tended to deny his actual sexual arousal by minimizing or overstating it as he thought appropriate. It concluded that the reliability of self-reported data by the prisoner was suspect and indicated that "the most important component of this evaluation...an alcohol-loaded sexual behaviours assessment," had not been done, and that in this respect the report was incomplete. The prisoner was a serial rapist who had committed offences in the past while intoxicated. The prisoner argued that the failure of the Respondents to order completion of the report denied him the benefit of his s7, s12, and s15 Charter rights.
	The Court found that this report was complete insofar as it dealt with the assessment of the prisoner except as to what may occur if the prisoner became intoxicated. The Warden was of the belief that the prisoner remained a threat to society when not under the influence of alcohol and that it would be a waste of resources to have the report completed. The Warden consulted with the Board before concluding that no further assessment was required. The Court concluded that the Commissioner or his representatives must prepare an inmate's parole case that is both reasonable and complete so that the members of the Board can make an informed decision in deciding whether or not the inmate in question should be allowed parole. It found that the warden did all that was reasonably expected of him to prepare the history of the prisoner to present it to the Board. Furthermore, the Board could have requested and required the further assessment had it wished.
	In order for an order in mandamus to issue, the applicant must show a clear legal right to have the thing sought by him done, and done in the manner and by the person sought to be coerced. In this instance, s6 compels the Commissioner to prepare the cases but this does not mean that he must provide the results of tests that the inmate wants performed but only those tests that are reasonably required in order to allow the Board members to make an informed decision. This has been done in this case.
	This is not an instance in which the Respondents refused to carry out tests that would be critical to determine whether the Applicant should be released. In that instance, s7 could be considered and mandamus would issue. Failure to complete the report does not constitute cruel and unusual punishment. The s15 argument was withdrawn.
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