SCRA Committee Report

Official Opposition Minority Report on the Corrections and Conditional Release Act

What is the purpose and function of the Canadian criminal justice system? Is it established to provide rehabilitation to those who break the law? Is it a system designed to create deterrents to the commission of crime? Is it a system of retribution to simply punish those who break the law? Is it a system designed to identify societal problems and develop solutions to those problems? All of those are considerations in our justice system. However, the Canadian Alliance believes that each of those and other philosophies are only secondary segments of the true purpose of our justice system. That purpose is the protection of law-abiding citizens and their property. All other considerations must keep this prime purpose in mind. The majority report of the Sub-committee on the Corrections and Conditional Release Act (CCRA) recommends that the protection of society be a stand-alone provision to ensure that it is the primary emphasis of the CCRA. Unfortunately, several of the recommendations or lack thereof in the report contradict this stated intention.

Putting the protection of a law-abiding society first means that it is necessary to accept to some degree that the rights and privileges of those who obey the laws of this country are fundamentally different from the rights of those who do not. The system does not do this. Section 4 of the Corrections and Conditional Release Act (CCRA) states "that offenders retain the rights and privileges of all members of society, except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence." The Canadian Alliance believes that any person who has been convicted in a Canadian court should temporarily lose some of their rights and privileges as a Canadian. Primary exceptions to this are basic Charter rights such as right to an attorney and the right to humane and healthful treatment. We define this as the right to be incarcerated in accommodations with reasonable environmental control, to be provided with basic personal care supplies, to be fed according to the Canadian nutrition guide, and to be provided with access to basic medical treatment. Beyond this, prisoners should have the ability to earn other rights and privileges such as more freedom within the prison, transfers to more desirable facilities, training programs, sports programs, visitor privileges, payment for work performance, canteen privileges, temporary absences and parole. Each of these rights and privileges must be earned by appropriate behaviour which in turn means that they can also be taken away for inappropriate behaviour.

Over the course of the last year, the Alliance member of the Sub-committee visited prisons in every region of this country. While we have seen many good programs in operation, we have also seen prisons where the entire operation of the prison revolves around the need to keep two motorcycle gangs and those associated with them separated. In essence, officials need to operate two entirely separate prisons within a single facility. That suggests to us that the prisoners, rather than the prison officials, control those facilities. We have seen case after case of prisoners who break all the rules inside a prison, acting in ways that are beyond the comprehension of ordinary Canadians, and yet they still get many of the privileges extended to other prisoners including television, computers, conjugal visits and even parole consideration. We have heard prison staff and even various prisoners complain about the lack of control over these types of prisoners. Guards lament the fact that they have little ability to deal effectively with prisoners who destroy prison property, fight with other prisoners and attack guards either physically or by throwing excrement at them. Prisoners themselves complain about the interference of other prisoners in their attempt to serve their time quietly, learn a trade, obtain effective counselling, earn early parole consideration and even about basic personal safety. We believe that prisoners need to understand and experience the consequences of their actions in prison, both positive and negative. Law-abiding citizens experience this all the time, from early childhood through their educational time and into adulthood. The best way to make punishment effective is to mirror this consequence of action in prisons as well.

When you find a methodology that works in one area, it seems reasonable that you should try to expand those methods to other areas. There are now many young offender diversion programs in operation that have proven to be very effective in dealing with certain levels of youth crime and rehabilitating the offenders. The intent of these programs is to keep the offender from entering the court system and to give them a chance to straighten themselves out. In many federal ridings including that of our Sub-committee member, there are several young offenders' diversion programs in operation. Entry to these programs is initiated by local police authorities who recommend a young offender to the program. To qualify, it has to be a non-violent first offence, the young offender has to accept full responsibility for the offence, the victim has to agree to the diversion, and restitution has to be possible from the young offender. It is a very intense and emotional program for the offender. One location using this program has now processed well over one hundred first time young offenders with only a single incident of a repeat offence. That kind of success needs to be repeated.

If a program like this can work so well for youth, should we not utilize it for certain adult offenders? If someone commits a crime such as stealing cash from their employer and that person is tried, convicted and placed in prison, the employer becomes a victim because the stolen money is lost. Society becomes a victim through court and prison costs and if the offenders lose their drive or ability to re-establish their lives after being released, society becomes a victim again through social program costs or those associated with the person re-offending. The criteria should be similar to the youth diversion program: first offence, non-violent crime, approval of the victim, restitution program. The applicable charge could be held without filing throughout the restitution period. A predetermined percentage of the offender's pay would be collected through the income tax system. Where the victim suffers a financial loss, the restitution would be paid directly to that victim or victims. Where the offence did not involve a specific victim or direct financial loss, the offender would pay the same percentage into a fund to be used for restitution of losses of victims in other situations. The period of repayment in such cases could be tied to the normal prison sentence for the offence committed. If at any time during the restitution period the offender is convicted of any indictable offence, the original charges are filed as well. This would reduce victim impact, court costs, prison costs and societal costs that often result from an offender's inability to rejoin society after being convicted.

For those non-violent first offenders who are convicted and sent to prison, we need to provide them with every opportunity for rehabilitation, early release and resumption of productive lives. To the greatest degree possible, they should be incarcerated in minimum security facilities with similar prisoners and should have the broadest access to earnable rights. Serious infractions of prison rules should place them at risk of being reassessed and transferred out of such a special facility.

All other prisoners should be assigned to medium or maximum security facilities according to level of crime, i.e. violent vs non-violent, repeat offences, escape risk and demonstrated or anticipated behaviour. Each should have the ability to earn rights but it should be progressively harder for violent criminals to earn those rights. Someone who earns a right and then loses it by breaking the rules should find it a little harder to earn that same right the next time.

Many offences committed inside prison that would warrant serious prosecution if committed outside of prison are treated as internal matters. A crime committed inside a facility should be subject to the same penalty as that crime committed outside of the facility. One specific incident we dealt with involved a Hepatitis C positive prisoner who attacked and bit two prison guards. The sentence for the offence was measured in days. If it had been committed on the outside, the sentence would have been measured in years. Also, sentences for offences inside the prison must be consecutively served or they have absolutely no meaning.

Parole should be earned through appropriate behaviour including willingness to participate in programs that address problems where applicable. Where a prisoner is approved for either a temporary absence or parole and then breaks the conditions of that release in a significant manner, a similar release should not be as easily attained the next time. In keeping with the premise that parole should be earned, the automatic release for most prisoners at two thirds of their sentence known as statutory release provisions should be revoked. We have heard witnesses on both sides of this issue. The witnesses and Committee members who did not support such a provision argued that without statutory release, most prisoners would not get released until the end of their sentence. They claim this would result in prison overcrowding and prisoners being released at the end of their sentence without any supervision. The Canadian Alliance does not necessarily agree that most prisoners would not qualify if they knew from the beginning that their release was contingent on their prison behaviour. In a brief presented by the Canadian Criminal Justice Association it was stated, "Some inmates could end up serving more time, but that number might be offset by the number of inmates who, realizing that they will not be released automatically on a given date, may opt for a more active participation in programs, invest more earnestly in their own rehabilitation and, in the end be released much earlier than their statutory release date." Aside from that, what these witnesses and Committee members are really saying is "these prisoners can't qualify for an earned parole, so we should have a provision called statutory release that simply opens the door for them." The majority report recommends that all cases eligible for statutory release be reviewed by Correctional Service Canada to determine whether they should be referred to the National Parole Board for a detention review. However, even such a review will not stop the release of an inmate who has refused to participate in rehabilitation programs and has not followed prison rules, even to the extent of violent behaviour, unless it is believed that the offender will commit an offence causing death or serious harm to another person; a sexual offence against a child; or a serious drug offence. Even in these provisions, there is a reverse onus which places the burden of proof of these concerns on the Parole Board.

If these prisoners should actually be considered for release and are inappropriately being rejected by the National Parole Board as some witnesses and Committee members have suggested would happen, that is a Parole Board problem that needs to be addressed directly. If Corrections Canada is not providing the programs needed to aid prisoner rehabilitation, that problem needs to be dealt with directly. There is absolutely no justification for ignoring these problems and simply opening the door as an alternative.

For prisoners who either do not qualify for parole due to unacceptable behaviour or simply not applying for it, there should still be a mandatory parole period even at warrant expiry. It is unacceptable to public safety to have a situation where a prisoner has a serious behavioural problem, perhaps has never participated in any rehabilitation programs and may never have progressed beyond maximum security incarceration, suddenly have the door opened and be turned loose upon society. It is equally unacceptable to release prisoners on statutory release before the completion of their sentence if they have not taken steps to earn it, yet that is exactly what the majority report does. At the end of the day, the changes they propose will not protect society.

Changes to the Dangerous Offender and Long-Term Offender provisions need to be considered. Currently, these provisions can only be placed on a prisoner at time of sentencing. If the crime was not of a nature or repetition that called for dangerous offender or long-term offender designation at time of sentencing, the ability to reassess that designation should be available to authorities throughout that criminal's period of incarceration for serious additional offences inside the prison. Also, there should exist an ability to detain a prisoner even at warrant expiry where authorities can demonstrate with reasonable certainty that the prisoner would likely commit a serious personal injury offence after being released.

Victims' rights witnesses complained of prisoners who cancel a parole hearing a short time before the hearing for no particular reason. They complained that this creates a major problem for victims who plan to testify at those parole hearings and that this could be a major contributing factor for sudden hearing cancellations by the prisoner. They advised that a victim could have purchased a non-refundable seat sale ticket to travel to the hearing, and may have arranged for holidays from work. Cancellation of a hearing is an extreme hardship for people who are already victims. Where a prisoner cancels a hearing with no acceptable reason, that prisoner should not be able to reapply for a period of one year. Where a hearing is postponed by the Parole Board and the victim has notified authorities of his intention to attend the hearing and has incurred non-refundable expenses, the out-of-pocket costs incurred by the victim should be paid by the Parole Board budget.

The Canadian Alliance strongly believes in providing a second chance to those who earn it, but earn it they must. We need to show compassion to those who make a mistake and are remorseful about it. We also need to show a new level of firmness for those who continuously ignore society's rules.

The Canadian Alliance representative on the Sub-committee studying the CCRA worked in the spirit of cooperation with other Committee members. We initially compromised on some areas in an effort to gain unanimous agreement on certain major areas of concern. The rationale was that a unanimous report might carry more weight with the government and increase the chance of the recommendations being implemented. There are many good recommendations contained in the majority report with which we agree. However, one item that was critical to us was statutory release. Initially we reached agreement on this item. Unfortunately, the Committee saw fit to revisit this subject and reversed its decision. As a result, the Official Opposition has reviewed the legislation and written its own report on needed changes to the CCRA. This may result in the government report claiming that there was unanimous agreement in areas where there is not. In some instances, that agreement was given based on other agreements on which the government later reneged.

The following recommendations are divided into two separate categories. The first deals specifically with changes to the Corrections and Conditional Release Act. The second deals with changes which need to be implemented in other legislations that have a specific impact on the operation of Canadian prisons.

Canadian Alliance Recommendations for Changes to the CCRA

Although the Committee originally agreed to repeal statutory release, they reversed this decision.

1. Repeal Statutory Release.

In recommendation 20 of the majority report, the Committee proposes that offenders subject to deportation orders may be granted parole at any time during their sentence for the purpose of deportation. This could result in an offender convicted of a violent offence being set free into their own country within months of being convicted. This is clearly not acceptable. The only time such a provision should be considered is where the offender faces prosecution in his home country for serious offences that will expose him to incarceration for as long as he would have served in Canada.

2. Offenders subject to deportation may be released to the authorities of their own country prior to parole eligibility only if they are subject to prosecution of serious crimes in their own country and Canada has received satisfactory assurances that they will in fact be prosecuted.

3. In the alternative to recommendation 2, where a person who is subject to deportation is wanted in their home country for prosecution of serious crimes in that country, charges in Canada should be stayed and the offender deported provided there is an agreement that they are subject to return to Canada on the Canadian charges if not convicted of their crimes in their home country.

In the majority report, the narrative in section 9.71 dealing with DNA sample collection from offenders already serving sentences states that the Committee has considered this issue and decided not to make any findings or recommendations. It further claims that the reason for this abrogation of responsibility is a lack of sufficient data and other forms of information. First, the lack of data or information is due to a failure to request such information. It is readily available had the Committee chosen to deal with it. Second, DNA databanks are little more than a technologically advanced version of fingerprinting. It has no detrimental impact on an offender other than to be able to prove or disprove guilt where DNA evidence exists.

4. Insert a provision in the CCRA to authorize the collection of DNA samples from all prisoners in federal institutions.

Some prisoners who have applied for parole have walked into the hearing, seen victims present and simply walked out requesting a postponement of the hearing. In some cases, these victims have used their annual holidays to attend the hearing and have incurred travel costs which create financial hardship.

5. Where a prisoner cancels a parole hearing without good cause, that inmate may not reapply for a parole hearing for a period of 12 months.

6. Where the Parole Board cancels a hearing and a victim has notified the Board of his intention to appear, the Parole Board shall reimburse the victim for all reasonable expenditures which cannot be otherwise recovered.

Discipline inside prisons appears to be a major problem. Staff lament that there are few consequences for serious rule violations and violent behaviour by inmates. While prison officials should continue to deal with rule infractions, offences normally subject to criminal prosecution must be prosecuted by the courts.

7. A crime committed inside a facility should be subject to criminal prosecution and the same penalty as that crime committed outside of the facility. Sentences received under this provision must be served consecutively.

Section 4 of the CCRA requires the Correctional Service to use the least restrictive measures consistent with the protection of the public, staff and offenders. This places severe restrictions upon the Correctional Services ability to use lower security, less restrictive facilities as an incentive for good behaviour and higher security, more restrictive facilities as a punishment for failure to follow prison rules.

8. Amend section 4 of the CCRA to allow Correctional Services to use higher restrictive measures for failure to follow institutional rules.

Canadian Alliance Recommendations for Changes to other Acts which affect the CCRA

Youth diversion programs have demonstrated a better way to deal with first time, non-violent offenders. Success has been shown time after time, saving court and justice system costs and getting young offenders back on track to productive lives. There is no reason for not initiating a similar program for adult offenders who commit first time, non-violent offences with similar anticipated results. The framework for this already exists in section 717 of the Criminal Code. With a few changes, the success of youth diversion programs could work for certain adult offenders as well.

9. Amend section 717 of the Criminal Code as follows:

• restrict application to first time offenders,
• only non-violent offenders shall be considered,
• focus on restitution to victims.

In addition, the federal government must take steps to encourage provinces to establish diversion programs including funding provisions.

It has been stated by many witnesses and Committee members alike that the most dangerous situation in the release of a criminal from a prison is where a violent offender who has not attempted to take advantage of rehabilitation programs, never qualified for parole and perhaps never even progressed beyond maximum security suddenly has the door opened at warrant expiry and is released without any supervision or controls. This has become one of the main justifications for statutory release. The government members on the Sub-committee believe that we should still provide early release to criminals who cannot qualify for earned parole. The Canadian Alliance agrees that it is desirable for prisoners to be released under the controlled circumstances that are normally associated with parole. However, we do not agree that this condition should be initiated where parole has not been earned. The alternative is to amend the Criminal Code to require that all federally sentenced prisoners be required to have a minimum period of six months of supervision upon release. If the prisoner does not qualify for parole during his sentence, then he would be subject to six months of supervised release upon warrant expiry.

10. Amend the Criminal Code to require each federally sentenced prisoner to have a minimum period of six months supervised release. This period of supervision may be fulfilled through normal parole provisions or shall be upon warrant expiry if a prisoner does not qualify for parole during his sentence.

Current provisions for Dangerous Offender or Long-Term Offender designations require the sentencing judge to make the designation only at the time of sentencing. This allows for the indeterminate detention of the designated prisoner for the protection of society. Studies indicate that some violent prisoners continue incorrigible behaviour inside prison facilities. No matter how great a risk is demonstrated by such prisoners, they cannot be reclassified as dangerous offenders or long-term offenders.

11. Amend the Criminal Code to permit dangerous offender and long-term offender applications to be made at any time prior to the expiry of an offender's sentence where the offender has not responded to programming, and/or is considered to be a danger to society.

Jim  Gouk, M.P.

Canadian Alliance Member, Sub-Committee on
Corrections and Conditional Release Act