BRIEF TO THE
STANDING COMMITTEE ON JUSTICE AND LEGAL AFFAIRS
HOUSE OF COMMONS
40TH Parliament, 3RD Session
AN ACT TO AMEND THE CORRECTIONS AND CONDITIONAL RELEASE ACT AND THE CRIMINAL CODE
Ending Early Release for Criminals and Increasing Offender Accountability Act
Presented by the Canadian Criminal Justice Association
June 17, 2010
The Canadian Criminal Justice Association (CCJA) welcomes this opportunity to present a brief to the Standing Committee on the subject of amendments to the Corrections and Conditional Release Act, commonly known as the CCRA. Our organization is the largest collective of criminal justice professionals and interested citizens in Canada. 2009 marked our 90th anniversary. We have approximately 800 members. We publish the Canadian Journal of Criminology and Criminal Justice, the Directory of Justice Services, the Directory of Services to Victims of Crime and author the Justice Report. We also sponsor the Canadian Congress on Criminal Justice every two years which attracts about 500 attendees from across Canada. In fact, Congress 2009, which took place recently in Halifax, was our 32nd Congress, another milestone.
The Association has historically adhered to a number of general positions on crime in Canada. First, we have always endorsed the notion that social development is integrally linked to successful crime reduction. Hence, the use of long-term confinement has always been considered as a last resort in favour of programs that positively affect social development.
Second, the CCJA has always argued that the current criminal justice system devotes too much of its scarce resources to the operation of prisons and penitentiaries. We have long supported greater development of alternative sanctions in the community context, and a greater balance of offenders--especially in the Federal system--being on parole rather than imprisoned. Indeed, we have constantly warned of the tendency to over-incarcerate.
Third, our Association has historically favoured the maintenance of small, treatment-intensive institutions. We have yet to be convinced that large 'warehouse-style' prisons produce much of anything except high recidivism rates and over-incarceration.
Given our general approach above, the CCJA is somewhat disappointed to see that C-39 goes in the opposite direction: offering essentially a more punitive approach with greater restrictions on parole grants, longer periods of incarceration and less effort to reduce imprisonment rates.
We therefore hope, as this Committee proceeds to consider C-39, it will be mindful of the very real limitations of relying upon increased penal sentences to control crime. As the Law Reform Commission of Canada once concluded, "severity of punishment does not appear to be significantly related to variations in crime rates." 1
Specifically, we offer the following commentary on several sections of the Bill which we bring to your attention.
A. Protection of Society
Since 1919, our Association has always felt that the protection of society can best be accomplished by a correctional system that emphasizes reparation and rehabilitation as a means of reintegrating inmates back into society. While the "protection of society" is understood to be the objective, complementary language about reintegration and rehabilitation is required if we are ultimately going to make Canadian communities safer.
We need to be careful to ensure that requiring Corrections Canada to consider the nature and gravity of the offence and the degree of responsibility of the offender does not become a form of re-sentencing but rather, an approach to measure an offender's progress in preparing himself for a return to the community.
B. Correctional Plans (Section 5)
We believe that correctional plans can be very beneficial for offenders who are interested in pursuing conditional release and reintegration. However, mandating participation and not providing any mandatory language about the availability of those programs raises some questions in our minds.
First, a correctional plan should be voluntary, not mandatory. It may affect an inmate's ability to secure early conditional release, but that should be a decision that remains with the individual.
Second, it makes no sense to mandate participation in a correctional plan if those programs are not provided prior to an inmate's eligibility dates for day and full parole. Language which simply mandates "at the appropriate time in their sentence" is insufficient to give inmates the right of access, if there are not adequate safeguards in place to ensure that such programs are available.
C. Classification (Section 9)
We are not certain why it is necessary to give the Correctional Service the authority to create sub-classifications for maximum and medium security facilities. This seems to us superfluous, duplicative, and potentially disruptive to an inmate's ability to apply for a lower security level. Under this proviso, inmates could be designated to a sub-classification and still find themselves in the same penal facility.
D. New Disciplinary Offences (Section 12)
Our Association, which counts many members who work in Canadian Corrections, is unclear why the proposed legislation contains new language about disciplinary violations that include disrespect, intimidation, and threats of violence. Also included are new offences such as making a false claim for compensation from the Crown, or throwing a bodily substance. It is our belief that these types of events are already chargeable under the CCRA disciplinary regulations or the Criminal Code. A new category of "disrespect" can easily be abused, and result in constant paperwork demands upon staff.
E. Electronic Monitoring (Section 14)
If someone is going to be tracked, involuntarily, with the use of electronic monitoring devices (e.g. an ankle bracelet), it is our respectful view that this should apply only to work releases and temporary absences. However, the jurisdiction to impose electronic monitoring for parole and certain unescorted temporary absences should remain with the National Parole Board as a formal condition. This is because if the device is imposed involuntarily, an inmate should have the right to petition the Board not to impose the device.
The CCJA has no objection whatsoever in allowing inmates to voluntarily participate in such a program. Unfortunately, the language imposed is mandatory, and "reasonable representations...in relation to the duration of the requirement" is insufficient to allow suitable redress.
F. Computers, Publications, and Audio Material (Section 19)
For some time now, our Association has been concerned with the policy of Corrections Canada to prohibit inmates from receiving outside printed material, audio and video materials, films, and computer programs, including the use of personal computers themselves. For the long-term inmate, computers provide an avenue to allow them to communicate with outside parties, take self-taught courses, and most importantly, attend to their civil rights by writing parole plans, grievances and even writs.
G. Day Parole (Section 27)
Section 27 amends the CCRA to preclude a renewed consideration for day parole until one year after a previous decision to deny, cancel, or terminate day parole. This "sleeper" provision is designed to vacate the Federal Court's decision in Dixon v. National Parole Board (2008) 2 F.C.R. 397, which gave inmates the right to re-apply after a six-month period.
There are very good correctional reasons to encourage inmates to apply for conditional release, even in the months after a rejection. To take away the hard-won rights of inmates to even apply for day parole seems to us excessively punitive and at cross purposes with reintegration efforts.
H. Consecutive Parole Board Reviews (Section 28)
This new language provides a period of two years before the Board reconsiders a case for further parole consideration after revocation, cancellation or termination of a conditional release. We think it better to retain a yearly review in order to encourage the National Parole Board to consider releasing an inmate into a more supportive environment with a managed release plan.
I. Accelerated Parole Review (Section 30)
History and Relevant Issues Pertaining to Accelerated Parole
The concept of Accelerated Parole Release (APR) was developed as part of the 1992 CCRA and is described in sections 125 and 126 of this Act. Its purpose was to ensure a balanced approach to the incarceration of offenders so that non-violent, first time federal offenders would be released at their first parole eligibility date unless a likelihood of violent recidivism could be demonstrated. It was assumed that non-violent offenders would not normally require long term incarceration to achieve the corrective outcome desired and that if their release was accelerated they would not pose any greater risk to the community than if they were released via the regular paroling process. This not only made good “correctional sense” but also good “economic sense” as the growing population in federal institutions was also becoming a concern. Thus APR became a creative means of dealing with a looming institutional population problem while at the same time supervising offenders in the community earlier than might be the case without adversely endangering the community at large.
Over the years, eligibility for APR has been altered to exclude those involved in “providing, making available, etc. property or services for terrorist purposes” and related offences as well as “a criminal organization offence within the meaning of section (2) of the Criminal Code of Canada”. The Act requires CSC to complete a review of such cases in a timely manner prior to parole eligibility dates and then to make a recommendation to the National Parole Board. Where a “not directed” recommendation is received from CSC, the Board panel (more than one member) will meet with the offender before making a final decision. In all other cases, where a “directed” recommendation has been put forth by CSC, the offender is automatically eligible for day parole at 1/6 of their sentence and without formally going before the Board, the decision will be made by a Board member in his office.
After over 17 years of operation, what can we conclude about the provisions of APR as a form of corrective measure and public safety?
The past five year data (2004-2009), for full parole obtained from Public Safety Canada indicate that APR cases generally have a lower rate of successful completion than regular full parolees. 71.7% of full APR releases are successful compared to 76.3% for regular parole releases and they are revoked for a non-violent offence at a higher rate than full paroles (1.2% more often).
On the other hand, APR full parolees are eight and a half times (8.5) less likely to be revoked for a violent offence than regular full parolees. This is as should be expected since the APR cases were not incarcerated for violent offences in the first place, but does demonstrate that the risk they present to the community is fairly minimal.
Data on day parole success (2004-2009) for APR offenders indicates that they generally have the same success outcomes as regular day parolees. While they are revoked for a non-violent offence at a higher rate, (4.4%, compared to 2.0% for regular day parolees), they are revoked for a violent offence at a much lower rate, 0.4%, compared to 0.6% for regular day parolees.
Thus in terms of overall outcomes we see little distinction between the two groups and the percentage of re-offending while under supervision remains low in all cases.
Current Proposal (Bill C-39) as it concerns APR
Bill C-39 seeks to eliminate APR entirely with the resultant effect of requiring all subsequent parole applications to be subject to National Parole Board hearings as it was prior to 1992. While this outcome may serve to bolster the image of being “tough on crime”, what are the realities associated with this decision?
As demonstrated by the data available to date, eliminating APR will not enhance the safety of our communities, since both approaches appear to bring about very similar outcomes. There will however, be unintended consequences to the system in general if APR is eliminated.
The first outcome of Bill C-39 will be an economic one, during a time when unnecessary cost increases are frowned upon. Each year some 900+ offenders are granted APR without direct face-to-face parole board hearings. This number represented 31% of all full parole grants in 2008-2009. Elimination of APR will not only be time consuming but also require the addition of numerous parole Board members to attend the required hearings. This will greatly exacerbate the current problems associated with scheduling, board staffing and travel, increased observer and victim attendance costs and institutional staffing- with no evidence of likely improved results.
APR facilitates a timely, predictable and manageable flow of offenders leaving most federal institutions. Elimination of APR will inevitably result in cases being delayed and pushed back to later release dates. This in turn will function to increase institutional populations at a time when capacity is already forecast to be stretched to the limit as a result of C-25, mandatory minimum sentences and other proposed legislative initiatives. For CSC this translates into a requirement for more cell space and operating funds -with no better outcomes.
While the above would lead one to conclude that the APR system is functioning as it should and the status quo should therefore be retained, there are however a number of moral and normative issues that are important factors to consider as well. Paramount amongst these are the factors associated with legislation that appears to provide automatic entitlements and a system of release that by-passes the decision making mandate of the Parole Board.
Paroling authorities are mandated to make decisions related to the release of offenders and should be held accountable and freed to do just that. APR removes that decision mandate (as does Statutory Release) and places the paroling authorities in a position of being “neutralized” but perceived to be responsible for the outcome anyway.
Finally and probably the most salient and cogent factor relates to the broad eligibility criteria for APR- a first time federal offender who has committed a non-violent offence. The breadth of this category has led at times to the criminal justice system being brought into disrepute. The community in general cannot accept that known organized criminals have benefitted from the APR provisions, as early as at 1/6 of the sentence, because of an inability of authorities to establish their membership in a "criminal organization" beyond a reasonable doubt. Similarly, we have witnessed a wave of fraudulent behaviours orchestrated by a select few with catastrophic results for many, many trusting citizens, often in their retirement years.
It is in large part because of these two groups that the elimination of APR has been brought forth in Bill C-39. In our view, APR is for the most part an effective, safe, efficient and timely paroling process that needs to be retained because of the benefits to by far, the majority of its recipients. The legislation however does require adjustments as we set forth below.
If we can recommend a number of approaches to a new Federal Corrections policy, it might look like the following:
- For sentences of less than ten (10) years, we recommend a return to annual (1-year) parole reviews for all federal inmates, as previously existed;
- that all inmates are entitled to early entrance into suitable treatment programs that are part of their correctional plans, prior to their parole eligibility dates;
- that prison staff take suitable measures to design conditional release plans which will protect the community by taking all reasonable steps to assist the potential parolee in adjusting to society;
- that suitable work alternatives be made available to all inmates, including work release, Corcan and other training programs;
- that notions of reparation be built into Canada's national corrections policy, to include the expanded use of community service, circles of support and victim-offender reconciliation.
- that APR be retained. There are no apparent outcome advantages and several real possibilities for negative consequences for offenders and the community if APR is eliminated;
- instead of APR elimination we recommend that the current sections in the CCRA pertaining to APR be amended through the following means:
- Instituting a compulsory hearing with 1 member of the National Parole Board. While the current "directed" nature of the decision and criteria pertaining to first-time non-violent federal offenders should be retained, this will serve as a more realistic means of ensuring that the NPB members "can see for themselves" and feel confident in the safety of their release decision. For the offender this will heighten his understanding of his responsibilities and accountability.
- The Justice Department must find the means to better define the application of the test for "membership in a criminal organization" so that such members are not able to benefit from APR.
- What we can only best describe as "mega fraudsters" should be ineligible for APR. While such individuals may not have perpetrated acts of violence per se, their predatory acts have rendered their victims at least as injured as if they had been seriously assaulted. We suggest here as well that Justice Canada review the possibility of creating a special category of ineligibility for these individuals.
We would welcome the opportunity to meet with the committee to further discuss these issues. We would also be happy to assist in any further study of this subject.
1. Law Reform Commission (Canada) (1976). Fear of Punishment: Deterrence. Ottawa: Ministry of Supply and Services.