Federal Court Hearing on Parole by Exception Request (Leslie McCulloch)
Date: May 4, 2020
Classification: Unclassified
Branch/Agency: Parole Board of Canada
Issue:
The Globe and Mail is reporting that a Federal Court Justice has chastised Justice Canada for stating it required 50 days to prepare for an urgent court hearing in the case of a convicted drug dealer, who had applied to the court to have his application for Parole by Exception heard more quickly by the Parole Board of Canada.
Proposed Response:
- The Parole Board of Canada continues to conduct conditional release reviews during the COVID-19 pandemic. This includes reviews that are set by law, as well as those that are generated by way of application from an offender and referred to the PBC by the Correctional Service of Canada.
- Parole by exception is a mechanism in law to permit an exceptional parole consideration for those who have not yet reached their parole eligibility date and only under certain circumstances.
- These circumstances include when an offender is:
- terminally ill;
- or whose physical or mental health is likely to suffer serious damage if the offender continues to be held in confinement;
- or for whom continued confinement would constitute excessive hardship that was not reasonably foreseen at the time of sentencing.
- The PBC always processes Parole by Exception cases as expeditiously as possible and is particularly attuned to these cases in light of the COVID-19 pandemic.
- In this case, an application was received by the PBC and was acknowledged. As is always the process, the Parole Board then requested that the appropriate case preparation be done by the Correctional Service of Canada so that the Board could make a fully informed decision, taking into account the offender’s health information and public safety considerations. Once this information is received, the Parole Board will conduct a review as quickly as possible, which is anticipated to be later this month.
- Public safety remains the paramount consideration in all PBC decisions.
- Since March 1, 2020, four parole by exception cases have been granted and 13 are scheduled for decision. This is already a significant increase compared to just seven parole by exception cases for all of last fiscal year, of which four were granted.
Background:
On April 29, 2020 the Federal Court granted a motion to hear a mandamus application to order the Parole Board of Canada to make a decision on Mr. McCulloch’s parole by exception (section 121 Corrections and Conditional Release Act) application. That hearing will take place on May 22, 2020.
Mr. McCulloch was sentenced to 10 years (8 years left to serve after pre-sentence custody) for trafficking and producing fentanyl in British Columbia. He began serving that sentence July 24, 2019.
On April 2, 2020 Mr. McCulloch’s lawyer applied to the Board for parole by exception. The Board responded April 9, 2020 acknowledging that the application had been received and would be given careful consideration. Mr. MucCulloch’s lawyer filed his Court application April 22, 2020.
The AG conceded to an expedited judicial review hearing, and noted in their submissions that in an effort to respond to the COVID-19 pandemic that the Parole Board of Canada had streamlined its processes and modified policies to provide flexibility to process applications as quickly as possible including parole by exception cases.
The AGC proposed a period of 50 days to prepare the evidence and written submissions required for this court hearing pursuant to the Federal Court Rules.
Since the beginning of the COVID-19 pandemic, there has been a significant increase in Parole by Exception cases. Parole by Exception cases are processed as expeditiously as possible in light of the current COVID-19 situation. Since March 1, 2020, four parole by exception cases have been granted and 13 are scheduled for decision, compared to only seven parole by exception cases for all of last fiscal year, of which four were granted.
Pursuant to section 121 of the Corrections and Conditional Release Act (CCRA), parole by exception may be granted to an offender:
- who is terminally ill;
- whose physical or mental health is likely to suffer serious damage if the offender continues to be held in confinement;
- for whom continued confinement would constitute an excessive hardship that was not reasonably foreseeable at the time the offender was sentenced; or
- who is the subject of an order of surrender under the Extradition Act and who is to be detained until surrendered.
When reviewing an application for parole by exception, Parole Board of Canada (PBC) Board members will determine whether one of the criteria listed in subsection 121(1) of the CCRA is met. If none of the criteria are met, the review will be discontinued. Offenders can re-apply at any time if there is new information to support the application.
If a criterion for parole by exception is met, Board members will determine whether the offender meets the criteria for parole set out in section 102 of the CCRA. The Board may grant the parole if, in its opinion:
- the offender will not present an undue risk to society by re-offending before the end of their sentence; and
- the offender’s release will contribute to the protection of society by supporting their reintegration into society as law-abiding citizen.
When reviewing the case of an offender for parole by exception, the Board takes into consideration all relevant available information on file, which would include the offender’s age, personal circumstances and any health condition. The PBC continues to review parole applications from offenders, including for parole by exception, based on the specific circumstances of each case.
Contacts:
Prepared by: Mark Prieur, Director, Public Affairs and Partnerships, 613-954-6547
Approved by: Daryl Churney, Executive Director General, 613-954-7481
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