THE CANADIAN PRISON LAW ASSOCIATION
PRESENTATION TO THE STANDING SENATE COMMITTEE ON LEGAL AND
CONSTITUTIONAL AFFAIRS IN RELATION TO BILL C-479, AN ACT TO AMEND THE
CORRECTIONS AND CONDITIONAL RELEASE ACT (fairness for victims)
February 12, 2015
Since our founding in 1985 the Canadian Prison Law Association (CPLA)
has been the only national organization bringing together Canada=s prison law
practitioners. In the name of the Association our members act on a volunteer
basis to advocate on behalf of incarcerated persons and promote the rule of
law as it affects the prison community. It has been our privilege during our history
to appear before Committees of the House and the Senate on various matters
affecting the prison law environment. We appreciate the opportunity today to
submit the present brief to this Committee.
In our capacity as practitioners our members find themselves working with the
reality which is moulded by this Committee=s labours. We think it reasonable to
expect that during the performance of your task the practical ramifications of
your discussions and decisions may not yet be obvious in all their detail. We
submit that the views of those of us who interact daily with the prisons= residents,
staff, and managers may be of some benefit in that necessary attempt to
foresee the impact of Bill C-479 on the penitentiary community and on the
public. In that light we respectfully offer the following comments and hope that
they prove helpful.
We shall address three points: Increase in the legal delays; Enhancement of
victims= participation in reviews; and Retrospectivity.
INCREASE IN THE LEGAL DELAYS
Having had the benefit of reading the unrevised transcript of the evidence
presented to the Committee on February 5, 2015, it appears to us that the
discussion of increases in the statutory delays between parole reviews was
largely conditioned by the various parties= admiration for or disapprobation of
conditional release. What perhaps was lacking until late was a clear
understanding of the proposed changes= impact.
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As finally was pointed out by Mme Suzanne Brisebois, the Parole Board=s
Director General for Policy, Planning, and Operations, AIt should be noted that
while the legislation identifies the minimum time frames for scheduling these
reviews, the Board may conduct a parole or detention review at an earlier time
based on the information it receives from CSC. Under Bill C-479, this will not
change.@ Nor does the bill seek to adjust the existing >penalty period= the
inmate must wait before the law allows him to request and compel a new
review of his case. Thus, automatic delays aside, inmates may continue to
convene a review once the existing penalty period of one year has expired
(usually followed by a four month period of file preparation), and the Board will
also retain its existing ability to initiate the review of a promising candidate even
more quickly than the penalty period contemplates.
What C-479 will do is effect a decrease in the frequency of those relatively
pointless reviews the Board is bound by law to conduct even in files where the
individual has no hope of a successful outcome and has not availed himself of
his right to summon the panel earlier. We are thinking here of reviews
conducted in a maximum security setting where one may predict with a high
degree of certainty that the parole panel is not going to find the statutory and
policy tests for release have been satisfied.
Overall, however, we think Ms Mary Campbell, with her vast experience of the
correctional system, got it right on February 5. Despite the opportunity to reapply
after the penalty period, prisoners are going to be feeling the effects of the
Board=s new, more leisurely timetable because CSC=s case management
practice will move to reflect it. Although early reapplications will remain possible
the teams cannot treat them as a sure thing: only the statutorily mandated
reviews are certain to happen, and so the practice will be to treat files as if there
now is more time than before to complete programs and cascade down to
lower security and build credibility through passes and work placement
programs. The pressure will come off staff to get it done.
Earlier we have referred to certain hearings as >relatively= pointless, and we use
that qualification because even hearings which cannot result in release may still
serve important purposes. Board members may, for example, use these
opportunities to bring their expectations to a prisoner=s attention and to remind
him of his shortcomings and the reasons he has yet to attain a status which
makes release a possibility. On many occasions a sympathetic Board member
will serve as an encouraging ear and inspire a prisoner to retain hope and to
renew his efforts. It is not uncommon for prisoners to take Board members as the
face and the voice of an anonymous public, and to conceive some feeling of
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personal obligation toward them. It is not always at the moment of release that
a prisoner says AI appreciate the time you have given to my case and I assure
you I will not let you down,@ B and means it. These conversations carried on in
high security can constitute a moment of truce in the ongoing war between
captive and captor, sometimes allowing for truths to be stated and heard and
understood and taken to heart. The contact with the public=s representatives
can sometimes prove pivotal.
We are mindful, however, that this bill which was already approved by the
House is determined to suppress the least fruitful of the Board=s activities, and
that following final adoption of the bill, we may not expect to find the Board
visiting institutions as frequently as before. In that context, we wish to make the
following constructive proposal: as a complement to the new longer delays
between automatic reviews, the law and the Board policy reflecting that law
should require inmates to be made more conscious of the penalty periods and
their ability to convene early reviews. For a variety of reasons, this right, which
should protect deserving candidates from unnecessarily protracted periods of
incarceration, is not always used when it should be. Some prisoners are
depressed, some discouraged, some do not speak either of the official
languages and tend to become lost in the system. Some are dissuaded by the
case management staff who would have to prepare the file for the Board=s use.
If this retained right to initiate early reviews is the measure which is supposed to
compensate for the new lengthier delays for automatic renews, steps should be
taken to ensure that these applications get made where appropriate.
Now that we have recognized that the proposed amendments target the
automatic reviews only, we are able to identify the cases in which C-479 does
very definitely play a harmful role. These are the detention cases in which there
is no right of application to mitigate the increase of the automatic delay. We
refer here to section 3 of Bill C-479, which through the new 131(1.1) will double
the delay before the Board must review the possibility that a first or a subsequent
detention order made under subsection 130(3) is no longer justified. Reviews of
these decisions are at the instance of the keeper, not the kept. The new delay
created by C-479 will therefore be inviolable regardless of the individual=s
progress.
We subscribe to the analysis already advanced by Ms Campbell, who
complained that the new delays impair the system=s opportunity to distinguish
between >the small fish= and >the big fish.= We prefer to use the language here
of deserving and undeserving candidates, the former being the ones who have
successfully addressed the factors initially responsible for their detention, while
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the latter are those who have failed or declined to bring about the necessary
improvement in their file. In the latter case, no harm will result when the hearing
has happened an extra year later, but in the former case, the deserving
candidates, the public will be paying to maintain a burgeoning penitentiary
population for no constructive purpose, and the detained individuals will be
deprived of a significant portion of their liberty at least one year longer than
public safety requires. We ask you to recognize the usefulness and the rightness
of bringing the Board together yearly with these offenders for the undeniable
benefit of detecting a certain number of deserving candidates, as has
happened in the past. What advantage could there be to using public money
to warehouse candidates who if only they could be seen would satisfy the risk
test for release?
The other category of concern is the cases of dangerous offenders serving an
indeterminate sentence. Under the current regime, whether or not the offender
can plausibly suggest release at this point, and without any action on his part to
submit the management of his file to the Board=s scrutiny, once eligibility is
reached the Board is required to conduct a hearing every two years (and for
offenders classified before October 15, 1977, every year). Bill C-479, however,
contains no explicit language in sections 2 and 3 which will insulate
indeterminate sentences from the application of the new four and five year
delays following denial or cancellation or termination. Yet the proper time frame
is already found in the Criminal Code:
761. (1) Subject to subsection (2), where a person is in custody
under a sentence of detention in a penitentiary for an
indeterminate period, the Parole Board of Canada shall, as soon as
possible after the expiration of seven years from the day on which
that person was taken into custody and not later than every two
years after the previous review, review the condition, history and
circumstances of that person for the purpose of determining
whether he or she should be granted parole under Part II of the
Corrections and Conditional Release Act and, if so, on what
conditions.
It may be argued that no conflict can arise here if one applies the interpretative
method which relies on the presumption of stability. According to this approach,
as the legislator is assumed to be aware of existing laws, it is unlikely that
important changes to those laws were intended in the absence of clear words
to that effect. In other words, in the absence of a clear indication that Bill C-479
operates notwithstanding the Criminal Code, one may not conclude the
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indeterminate sentences have been affected. Yet that same assumption just
mentioned also gives rise to a contrary interpretive principle: leges posteriores
priores contrarias abrogant (the more recent law takes precedence).
We note that the new subsection 123(8) provides that A >offence involving
violence= means murder....@ This clarification would not be needed if the
expression >a sentence of at least two years= already were not intended to
include life sentences. One can deduce therefore, that the expression >a
sentence of at least two years= in the new subsection 123(5.2) is not limited to
sentences in numbers, giving rise to our concern that the implementation of C-'s
amendments will be used to lengthen the automatic reviews of indeterminate
sentence to four and five years.
Would it not be important, therefore, to obviate all judicial debate by including
language in the legislative amendments stating explicitly that they are enacted
subject to section 761 of the Criminal Code as concerns the Board=s reviews of
dangerous offender files? If the proposed amendments were allowed to modify
or update section 761 of the Criminal Code, this bill would be treading on
constitutionally delicate ground, for one remembers that the Supreme Court of
Canada found these sentences of indefinite preventive detention do not
constitute cruel and unusual treatment or punishment in violation of section12 of
the Charter because the regular reviews by the Parole Board of Canada serve
to tailor the period of detention to the circumstances of the offender. (R. v.
Lyons, [1987] 2 S.C.R. 309; R. v. Milne, [1987] 2 S.C.R. 512). Furthermore, in Steele v
Warden of Mountain Institution (1991) 60 CCC(3d)1, when the Supreme Court
defined the content of this constitutional safeguard it ruled that the Parole Board
has a special duty to oversee CSC=s management of the case to ensure that
the sentence does not become disproportionate, and therefore violative of
section 12 of the Charter; in the words of the Parole Board=s Decision-Making
Policy Manual, Awhether case planning has been customized to fit the present
circumstance of the individual offender, and if all efforts have been attempted
to prepare the offender for conditional release.@ (2.1(14)) That essential duty of
oversight, like the essential determination of risk, is now conducted through a
review by way of hearing.
We anticipate that tampering with the frequency of the performance of the
dual task assigned to the Board in the dangerous offender cases would lead to
constitutional litigation and a period of confusion during which inconsistent
applications of the law would reign in different provincial jurisdictions, as has
happened with the badly-handled restrospective abolition of accelerated
review, and will ultimately result in a new finding of unconstitutionality.
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ENHANCEMENT OF VICTIMS= PARTICIPATION IN PAROLE REVIEWS
I.
The new subsection 140(10.1) as proposed by subsection 4(3) of the Bill
provides that when the Board decides if it should release and what conditions to
impose it shall Atake into consideration any statement that has been presented
in accordance with paragraph (10)(a) or (b).@ The CPLA has concluded that the
introduction of subsection 140(10.1) into the Act would wreak havoc with the
existing legislative regime governing release decisions.
Currently, section 101 of the Act requires that Aparole boards take into
consideration all relevant available information, including (...) information
obtained from victims....@ This directive statement is consistent with B indeed,
forms part of the legislative inspiration for B the Supreme Court=s explanation of
the informational base of the Board=s decision-making. In Mooring v. Canada
(National Parole Board), [1996] 1 S.C.R. 75, the Court held that parole boards
must ensure that the information upon which they act is relevant, from a reliable
source, and persuasive. In light of section 101 and the rule derived from
Mooring, it is clear that without the new subsection 140(10.1), the Board already
is commanded specifically to consider whatever information may be obtained
from victims, so long as it is relevant, reliable, and persuasive.
It is a well-established principle of statutory interpretation that Parliament is
presumed never to be speaking for no purpose. Each sentence and each part
of each sentence is assumed to have been drafted carefully to achieve an
objective. What objective, then, will the courts be able to assign to the
language in subsection 140(10.1), given that the Board=s use of appropriate
information supplied by victims is already specifically dealt with in section 101?
In our submission the role the new provision will inevitably play is derived from
the fact that paragraph 101(a) limits the Board=s attention to the victim=s
information, whereas 140(10.1), by referring to Aany statement@ presented by a
victim, has decisively distanced itself from 101(a) and introduced the decisionmaker to all manner of content, much of it non-factual; for understandably,
most statements provided by damaged and suffering individuals are more likely
to proffer strong opinions, unrestrained speculation, and heartfelt pleas for the
denial of release, than to file new, reliable, substantiated facts which bear on
the risk, although the latter may also be present. With the introduction of
140(10.1), therefore, we find the Board for the first time in its history enjoined to
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consider the wishes of individuals (harbouring an almost pre-ordained opposition
to release) in tandem with their traditional objective risk assessment.
Consider the dilemma of the panel that has reviewed the informational base via
section 102 of the Act and concluded that release, objectively considered,
would constitute an assumable risk, and will also Acontribute to the protection of
society by facilitating the reintegration of the offender into society as a lawabiding citizen;@ but then must comply with its new duty to Atake into
consideration@ a statement that strenuously (and, as we have said,
understandably) exhorts the Board to deny. How would such an exercise be
conducted? Is the justice system ready for this kind of decision-making? Is the
country?
The imposition of this subjective element potentially unrelated to the risk factor
threatens to transform the nature of the Board=s function, and in a way that
some might feel serves the individual victim, but which departs from the Board=s
traditional focus on the best interests of the society.
This is a pernicious innovation to a system which, for the most part, succeeds in
achieving its purpose by eschewing emotion-based decision-making and relies
on what the social and human sciences have been able to teach us about
managing the risk and reducing the numbers of future victims.
II
The CPLA finds the language of subsection 6(3) dangerously vague. The
term >information pertaining to the offender=s correctional plan, including
information regarding the offender=s progress towards meeting the objectives of
the plan,= could be defined broadly in practice so as to authorize distribution of
virtually all the information in a prisoner=s file.
This language is particularly susceptible of broad interpretation as the term
>correctional plan,= which is treated at section 15.1 of the Act, is not assigned a
definition by the Act. In federal correctional practice it has both a broad and a
narrow meaning. Employed narrowly, it refers simply to a list of activities
(programs, school, work, etc.) and personal objectives drawn up by the
institutional head=s representative (i.e. a parole officer) and which an inmate is
expected to pursue and achieve. This is the sense in which an inmate
understands the term: AI can=t register for the program I want because they
didn=t include it in my correctional plan.@ Used broadly, it refers to the
Correctional Plan Report completed on CSC form 2006-03 (R-13-11) OMS VERS
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(5) which surrounds the list of activities and objectives with a discussion of the
entire file under the headings: Static Factors Assessment, Dynamic Factors
Assessment, Progress Overview, Outstanding Charges, Current Offence, Case
Status, Static Factors Assessment Rating, Dynamic Factors Assessment Rating,
Personal / Emotional Life, Attitude, Associates, Substance Abuse, Employment /
Education, Community Functioning, Marital / Family Relations, Assessment of
ICPM Program, Program Identification Tool Result, Regional Administrator,
Assessment and Interventions, or Delegate, Override Recommended, Program
Recommendation, Accountability Rating, Motivation Rating, Engagement
Rating, Reintegration Potential Rating, Psychological / Psychiatric / Mental
Health Information, Offence Cycle, Correctional and Sentence Planning,
Analysis of Current Request, Action.
Everyone will understand that the Correctional Plan Report contains a wealth of
private information which does not relate to the victim=s safety and of which a
victim has no need. Yet without additional precision in the language of the new
subparagraph viii.1, victims will be learning that offender x as a minor was seen
by a psychiatrist and that his parents were alcoholics who separated following
periods of marital infidelity.
At this point the author of this bill should be consulted to discover what exactly
he thinks will be of help to the victim so that access to that specific kind of
information may be substituted for the global access viii.1 risks opening up to the
entire life of a prisoner and the innocent members of his family.
III.
The proposed section 140.2, allows for a victim or member of the victim=s
family to obtain a transcript of a hearing, but requires any portion of the hearing
to be expunged if that portion was or would have been continued in the
absence of observers pursuant to subsection 140(5). Unfortunately, the grounds
enumerated in 140(4) which is referenced by 140(5) decline to include the
privacy or the safety of the offender.
Left in its present form, this section will authorize victims and their families to gain
access to the most sensitive kind of information which could both jeopardize
offenders, and serve to put the offender and victim in conflict again. Take the
example of an offender who gave information about a biker gang to the police
before or during incarceration. Nothing in the contemplated scheme of
information-sharing calls for the exclusion of that information from the transcript.
And there would be nothing to prevent the victim from passing that information
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on to the gang in question. As for the offender, not knowing what is being done
with his private information, but fearing the worst, he may experience a desire
for revenge on anyone who ordered his transcript.
This is not good social policy. If transcripts are destined to circulate, reference to
subsection 140(5) and the adjacent 140(4) will not be adequate to the
protection of both parties.
IV
Subsection 6(4) again displays a dangerous disregard for the rights and the
very safety of the offenders whose information is to be passed around.
According to the new paragraph 142(1)(c), the Board must not disclose details
about the offender=s unescorted temporary absences if that disclosure would
Ahave a negative impact on the safety of the public.@ The implications for the
offender=s own safety do not even enter into the calculation that seemed useful
to the author of this Bill.
RETROSPECTIVITY
The CPLA opposes the retrospective aspects of this bill=s transitional provisions. We
anticipate that the Courts will not tolerate them for the same reasons that were
advanced by witness Eric Purtzki and by Senator Joyal on February 5. We expect that
the adoption of retrospective legislation will once again plunge the correctional system
into a protracted period of uncertainty as the penitentiary population looks to the
country=s provincial superior courts for relief, and it becomes more advantageous to
locate in some of CSC=s regions and not in others. At this stage this outcome is still
avoidable.
OTHER MATTERS
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In passing, allow us to bring your attention to a grammatical slip in the proposed
paragraph 140.2(3), no doubt reflecting a hasty translation from the French version.
Thus, Ainformation are not publicly available@ should be Ainformation is not publicly
available.@
Similarly, an error has slipped into the last lines of 140.1: Ato which the offender would
otherwise be entitled to under this Act@ should read Ato which the offender would
otherwise be entitled under this Act.@
Respectfully submitted by
Stephen Fineberg
Vice-president,
Canadian Prison Law Association
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