In an important victory by the Queen’s Prison Law Clinic for prisoners throughout the federal system, prisoners for will be released as soon as they are entitled to be, and this will provide certainty and stability as they reintegrate back into their workplaces, families, and communities.”
In an important victory by the Queen’s Prison Law Clinic for prisoners throughout the federal system, prisoners for will be released as soon as they are entitled to be, and this will provide certainty and stability as they reintegrate back into their workplaces, families, and communities.”

“Every year many people across Canada were being caught up by a provision that kept them in prison for no purpose at all,” says Paul Quick, a staff lawyer with the Queen’s Prison Law Clinic (QPLC). “These prisoners weren’t being punished or held accountable for anything, they were just being ignored by a system that did not value their liberty rights enough to look at their file and see they were already entitled to release.” 

Quick, with help from QPLC students, took action to change that situation. They presented a test case to the Ontario Superior Court of Justice in Kingston challenging the constitutional validity of Section 163(3) of the Corrections and Conditional Release Regulations under Section 7 of the Charter, which protects an individual’s rights to life, liberty, and security of the person. 

“Generally, prisoners are entitled to be released once they have served two-thirds of their sentence,” Quick explains. “They are still under sentence but serve the last third of it in the community under release conditions.” 

This “statutory release” for an individual may be suspended by the Correctional Service of Canada if the person breaches a release condition (such as travelling outside boundaries set by the parole officer without prior approval), or if a parole officer decides the person’s risk is no longer manageable in the community.

“When statutory release is suspended, the individual is arrested and brought back to prison,” says Quick. “The Service then has 30 days to either cancel the suspension themselves or refer the matter to the Parole Board for review.”

At this review, known as a “post-suspension hearing,” the Parole Board can either cancel the suspension (release the individual) or revoke the release (keep the individual in prison until his or her new statutory release date, which is two-thirds of the time left on the sentence after the individual returned to prison). 

The QPLC challenged the provision that gave the Parole Board of Canada 90 days to make this “post suspension decision” in all cases.

“Our case dealt with the common situation of prisoners who were being suspended near the end of their sentence and whose new statutory release date fell within the 90-day period for the Board’s decision,” explains Quick. “After this date, these individuals would always be entitled to automatic release as soon as the Board made any decision. The problem was that the Board did not have to make a decision for 90 days, so these prisoners were sitting in prison for no reason other than the Board’s convenience.”

In the end, the Court agreed with the QPLC that the impact of the 90-day timeframe on these prisoners was arbitrary and grossly disproportionate and amounted to a serious violation of their liberty rights under the Charter.  

“This is an important victory for prisoners throughout the federal system,” says QPLC Director, Kathy Ferreira, Law’01. “The provision struck down in this case had been on the books for decades, and caused great frustration to prisoners and their lawyers across Canada. Thanks to this decision, prisoners will be released as soon as they are entitled to be, and this will provide certainty and stability as they reintegrate back into their workplaces, families, and communities.”

Developing and winning this constitutional test case is a major achievement not only for the QPLC, but also for the students involved. Ryan Mullins, Law’20, worked on research at an early stage of planning the case. This academic year, Alexa Banister-Thompson, Law’21, conducted legal research, and helped prepare the factum and other materials for the court hearing. 

“Being part of this successful case was extremely rewarding for two reasons,” she says. “First, protecting the rights of our clients is very important to me. Oftentimes people think of prisons as ‘out of sight, out of mind’ but these are real people and their past mistakes do not strip them of their constitutionally protected rights. Second, it was great to see my research utilized in both the written and oral submissions. 

“Working with both Kathy and Paul at the Prison Law Clinic has been the most valuable learning opportunity throughout my time in law school,” adds Banister-Thompson. “Not only are they dedicated to teaching and supporting their students, but they resolutely advocate for one of the most marginalized populations in Canada. I will be forever grateful for the wisdom and experience I gained from the clinic.”

The QPLC brought the case on behalf of the John Howard Society of Canada as a public-interest litigant. The decision on John Howard Society of Canada v. Her Majesty the Queen (2021 ONSC 380) is available on the Canadian Legal Information Institute (CanLII) website. 

The Queen’s Law Clinics gratefully acknowledge the support of Legal Aid Ontario, the Law Foundation of Ontario, Pro Bono Students Canada, the Class of Law’81, the United Way of KFL&A, and alumni, friend, and industry sponsors.