SCRA Committee Report
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CHAPTER 2:
PUBLIC
PROTECTION AS
THE PARAMOUNT CONSIDERATION
2.1 The main function of the corrections and conditional release system is to administer sentences of incarceration handed down by criminal courts. This is to be done in such a way as to assure that the offender is eventually reintegrated into the community as a law-abiding citizen, who doesn't reoffend or victimize others.
2.2 This chapter deals with public protection, which is the paramount consideration set out by Parliament as its most important legislative policy guidance to those applying and interpreting the Act on a daily basis. The John Howard Society of Canada emphasized this by saying in its brief that corrections and conditional release system personnel must govern their day-to-day activities with the statement of legislative purpose in mind.2 The Ministry of the Attorney General of Ontario Office for Victims of Crime, in its brief, urged the Sub-committee to keep the paramount consideration of public protection as the basic purpose of the corrections and conditional release system at the forefront of its deliberations.3 The Sub-committee has accepted and applied this advice in the findings and recommendations contained in this report.
2.3 The Act contains two purpose provisions. Section 3 is addressed to the federal correctional system, while section 100 performs the same function for conditional release, in which both the Correctional Service and the Parole Board play roles. Section 3 of the Act reads as follows:
The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by
(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and
(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.
2.4 As can be seen, the purpose of the correctional system is clearly protection of the public through management of sentences via offender custody and supervision, and rehabilitation and community reintegration. It is also clear, however, that there is a hierarchy of values within this provision of the Act. Custody, supervision, rehabilitation, and reintegration are identified as the means to assure public protection. Section 100 of the Act reads as follows:
The purpose of conditional release is to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens.
2.5 The purpose of the conditional release system is clearly protection of the public through the timing and conditions of release decisions facilitating offender rehabilitation and reintegration as law-abiding members of the community. It is also clear here that there is a hierarchy of values within this provision of the Act. The timing and conditions of release for rehabilitation and reintegration are set out as the means to assure public protection.
2.6 It is not uncommon for Parliament to enact statements of purpose and principle to indicate the goals it seeks to achieve, to those who have to apply and administer legislation. The present sentencing provisions of the Criminal Code contain such a statement of legislative policy intent.
2.7 The Sub-committee believes that both the correctional system and conditional release legislative purposes, as it understands them, are not in need of change. However, both the Correctional Service and the Parole Board must ensure that these purpose clauses provide the basic criteria against which policies and decisions are to be measured.
2.8 There are two provisions in the Act setting out principles intended as guidance for achieving the purposes discussed in the immediately preceding part of this chapter of the report. Section 4 applies to the Correctional Service and section 101 applies to the Parole Board. Section 4 of the Act reads as follows:
The principles that shall guide the Service in achieving the purpose referred to in section 3 are
(a) that the protection of society be the paramount consideration in the corrections process;
(b) that the sentence be carried out having regard to all relevant available information, including the stated reasons and recommendations of the sentencing judge, other information from the trial or sentencing process, the release policies of, and any comments from, the National Parole Board, and information obtained from victims and offenders;
(c) that the Service enhance its effectiveness and openness through the timely exchange of relevant information with other components of the criminal justice system, and through communication about its correctional policies and programs to offenders, victims and the public;
(d) that the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders;
(e) 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;
(f) that the Service facilitate the involvement of members of the public in matters relating to the operations of the Service;
(g) that correctional decisions be made in a forthright and fair manner, with access by the offender to an effective grievance procedure;
(h) that correctional policies, programs and practices respect gender, ethnic, cultural and linguistic differences and be responsive to the special needs of women and aboriginal peoples, as well as to the needs of other groups of offenders with special requirements;
(i) that offenders are expected to obey penitentiary rules and conditions governing temporary absence, work release, parole and statutory release, and to actively participate in programs designed to promote their rehabilitation and reintegration; and
(j) that staff members be properly selected and trained, and be given
(i) appropriate career development opportunities,
(ii) good working conditions, including a workplace environment that is free of practices that undermine a person's sense of personal dignity, and
(iii) opportunities to participate in the development of correctional policies and programs.
Section 101 of the Act reads as follows:
The principles that shall guide the Board and the provincial parole boards in achieving the purpose of conditional release are
(a) that the protection of society be the paramount consideration in the determination of any case;
(b) that parole boards take into consideration all available information that is relevant to a case, including the stated reasons and recommendations of the sentencing judge, any other information from the trial or the sentencing hearing, information and assessments provided by correctional authorities, and information obtained from victims and the offender;
(c) that parole boards enhance their effectiveness and openness through the timely exchange of relevant information with other components of the criminal justice system and through communication of their policies and programs to offenders, victims and the general public;
(d) that parole boards make the least restrictive determination consistent with the protection of society;
(e) that parole boards adopt and be guided by appropriate policies and that their members be provided with the training necessary to implement those policies; and
(f) that offenders be provided with relevant information, reasons for decisions and access to the review of decisions in order to ensure a fair and understandable conditional release process.
2.9 Both of these provisions provide clear direction to the Correctional Service and the Parole Board as to how Parliament intended the legislative purposes to be implemented by both agencies in their day-to-day operations. The sentencing provisions of the Criminal Code use a similar legislative policy technique, there referred to as a fundamental principle and `other' principles of sentencing.
2.10 Section 4 and section 101 of the Act are consistent with section 3 and section 100, in that they contain, in identical terms, the designation of protection of society as the paramount consideration in the corrections process or the determination of any case. Unfortunately, these provisions, at paragraph 4(a) and paragraph 101(a) respectively, in their present legislative form, are enunciated in the same manner and seem to have the same weight and status as the following paragraphs. The following paragraphs are clearly intended to be the means by which the paramount guiding principle is to be implemented.
2.11 This manner of drafting undervalues the importance of the paramount principle in the corrections and conditional release system. The Sub-committee believes this should be addressed by recasting section 4 and section 101 to amend the Act, so that paragraph 4(a) and paragraph 101(a), dealing with protection of society as the paramount consideration, are reformulated as stand-alone basic principles. The remainder of the sections would be retained as separate provisions setting out guiding principles for the attainment of the legislative purposes and basic principles.
2.12 Paragraph 4(a) could become a new section 4, and the rest of section 4 could become a new section 5, to deal with the Correctional Service. The new section 4 could be drafted in the following terms, based on the present paragraph 4(a):
Basic principle: The protection of society is the paramount consideration in the corrections process.
2.13 A similar amendment could be made to section 101 of the Act to set out the basic principle and guiding principles applicable to the Parole Board.
RECOMMENDATION 1
The Sub-committee recommends that section 4 and section 101 of the Corrections and Conditional Release Act be amended so that the paramountcy of the protection of society is established as the (stand-alone) basic principle applicable to the Correctional Service of Canada and the National Parole Board. What remains of section 4 and section 101 is to be retained, as amended, as guiding principles.
2.14 There are many ways to ensure that this basic principle is implemented on a day-to-day basis. The rest of this chapter deals with some of these ways and suggests required changes, to ensure that protection of the community is effectively provided for in specific circumstances.
2.15 Schedule I and Schedule II of the Act perform an important function in providing a degree of public protection. Schedule I sets out a number of offences, prosecuted by indictment, involving the possible or actual infliction of serious harm on victims, while Schedule II sets out a number of serious drug offences prosecuted by indictment.
2.16 These schedules come into play at several different points in the administration of a sentence. When a scheduled offender applies for an unescorted temporary absence, section 107 of the Act provides that the National Parole Board, rather than the Correctional Service, has jurisdiction to grant it. Under section 125 of the Act, an offender who has committed a scheduled offence is not eligible for the accelerated parole review process, and is thus not releasable on day parole at the one-sixth point in the sentence. Finally, an offender who has committed a scheduled offence is potentially subject to the post-statutory release detention provisions found at section 129 to section 132 of the Act.
2.17 These schedule-related measures have a direct impact on public protection. They provide the basis for delaying the release into the community of offenders posing an unacceptable risk of reoffending. In doing so, they ensure that those committing serious offences and at risk of recidivating serve a longer, denunciatory portion of their sentences in a carceral setting, where they will not be threats to the community.
2.18 For the schedules to be effective and have the impact here ascribed to them, it is important that policy-makers keep them under continuous review and add new offences to them, as these offences are adopted by Parliament in response to public concerns and expectations. The enactment of these new offences, and their inclusion in one or the other of the schedules, will express Parliament's intent to denounce such criminal conduct.
2.19 As an example of this, Parliament has recently amended the Competition Act4 to make deceptive telemarketing either a summary conviction offence, punishable by a fine of up to $200,000 and/or imprisonment for up to one year, or an indictable offence, subject to a fine at the court's discretion, and/or imprisonment for up to five years.
2.20 To express the seriousness with which it views this offence, Parliament took the unusual step of setting out a number of offence-specific aggravating factors to be taken into account by the courts in imposing appropriate sentences. Among these factors are the deliberate targeting of persons vulnerable to abusive tactics; the targeting of previous victims; the amount of the realized proceeds; and the deliberate manner in which abusive tactics are used.
2.21 To demonstrate further the seriousness with which it views deceptive telemarketing, Parliament subsequently added it to the enterprise crime provisions of the Criminal Code,5 but did not add this offence to the schedules. Consequently, those prosecuted by indictment, convicted of deceptive telemarketing, and sentenced to terms in excess of two years are eligible for the accelerated parole review process and possibly for day parole after six months, or at the one-sixth point in their sentence, whichever comes later. The National Parole Board does not deal with their requests for unescorted temporary absences. They are not necessarily subject to the post-statutory release detention provisions of the Act, based on their offences or convictions.
2.22 This demonstrates the importance of Parliament consciously considering whether it wants to further denounce criminal activity beyond merely enacting a new offence with the consequential sanction. The failure to add an offence to the schedules has an impact on the legislated tools available to the corrections and conditional release authorities administering a sentence of imprisonment.
2.23 Deceptive telemarketing is not the only criminal offence not in the schedules that has recently attracted public attention. The child pornography offences, contained in section 163.1 of the Criminal Code, are hybrid offences that, if proceeded with by indictment, can attract a sentence in excess of two years, but are not included in Schedule I of the Act.
2.24 In contrast, Parliament amended6 paragraph 125(1)(a) of the Corrections and Conditional Release Act to ensure that those convicted of criminal organization offences are not eligible for the accelerated parole review process. This was done in response to a public outcry when several offenders, who received lengthy sentences for serious drug offences, were not only eligible for the accelerated parole review process, but were also released on day parole at the one-sixth point in their sentences instead of six months before their parole eligibility dates. This amendment, however, did not add criminal organization offences, as defined in section 2 of the Criminal Code, to the schedules.
2.25 The Sub-committee believes that the schedules to the Act play an important role in setting out Parliament's view as to which criminal offences are serious enough to be designated as deserving special denunciation, resulting in greater portions of sentences being served in a prison. Although the Sub-committee comes to conclusions and makes recommendations elsewhere in this report that have an impact on the use to which the schedules are put, it believes they should be maintained, expanded by adding offences, and reviewed on a continuing basis, to determine if any further additions are required.
RECOMMENDATION 2
The Sub-committee recommends that the Corrections and Conditional Release Act be amended by adding child pornography offences and criminal organization offences (as defined in section 2 of the Criminal Code) to the schedules. As it further amends criminal legislation, Parliament should consider adding other offences such as deceptive telemarketing to the schedules as a means of denouncing criminal conduct.
APPREHENSION IN CASES OF BREACH OF CONDITIONAL RELEASE
2.26 The effectiveness of successful reintegration into the community is dependent on the setting of appropriate release conditions to be respected by the offender, and close supervision to ensure this happens. The burden is on the offender to live in the community according to these conditions, and on the release supervisor to see that they are respected. Public protection is best assured when offenders and their release supervisors live up to the duties and responsibilities imposed on them.
2.27 The reality is, however, that offenders do not always respect the conditions under which they are released back into the community. These situations are dealt with by section 135 of the Corrections and Conditional Release Act. Where an offender breaches a condition of parole - which means both day parole and full parole - or statutory release, a member of the Parole Board, or a person designated by name or title by the Chairperson of the Parole Board or the Commissioner of Corrections, may suspend the release and authorize the apprehension and recommitment to custody of the offender.
2.28 Similar provisions exist with respect to work release and unescorted temporary absences. Subsection 18(6) of the Act allows the warden of a penitentiary, who suspends or cancels a work release, to issue a warrant of apprehension and recommitment to custody. The authority approving an unescorted temporary absence, who suspends or cancels it, may issue a warrant of apprehension and recommitment to custody under section 118 of the Act.
2.29 The Canadian Police Information Center (CPIC), a national police database available to virtually all police forces, contains information about parolees released from institutions, on parole and statutory release. Through an interface with the Correctional Service, CPIC users can determine whether a subject is a federal penitentiary inmate.
2.30 Subsection 18(6), section 118, and section 135 of the Act, and the ready access of information about conditionally released offenders, provide a good basis for the apprehension and reincarceration of released offenders in breach of their release conditions. Conditions can be breached by the commission of a new offence or the failure to abide by the release conditions themselves. If a conditionally released offender has committed a new offence, he can be arrested and charged by law enforcement authorities in the same way as any other suspected person.
2.31 The difficulty lies with a conditionally released offender who has breached a condition of release, but has not committed a criminal offence. The Ministry of the Attorney General of Ontario Office for Victims of Crime describes the situation faced by police officers as follows:
Officers are... required to attempt to access a 24/7 CSC service and gain their decision to revoke the conditional release and issue a warrant. Not only is this an unnecessarily cumbersome, lengthy and more costly process but, given the internal CSC decision to not return offenders in violation of their conditional release, potentially counterproductive to the safety supposedly achieved through the imposition of conditions.7
2.32 Based on this argument, the Ministry of the Attorney General of Ontario Office for Victims of Crime proposed that section 145 of the Criminal Code, which establishes the offence of being at large without lawful excuse before the end of a term of incarceration, be amended to make it an offence to be in breach of a condition of conditional release.
2.33 The Canadian Police Association takes a similar position on this issue. They describe the situation of the police officer faced with such circumstances in the following terms:
Police officers are also unable to arrest and charge an offender who has breached a condition of his parole. Police are merely able to notify the parole officer, who makes the determination on whether or not to revoke or reoffend. Police should have the ability to arrest and charge offenders who have breached their parole conditions.8
2.34 Based on this argument, the Canadian Police Association recommended that the Criminal Code be amended to create the indictable offence of breaching a condition of conditional release.9
2.35 The Sub-committee agrees with the submissions it has received on this issue. Subsection 18(6), section 118 and section 135 of the Corrections and Conditional Release Act are not adequate in themselves to effectively cover all the circumstances confronting law enforcement officials, where a conditionally released offender is in breach of a condition not amounting to a new criminal offence. Provision must be made to allow a police officer faced with such a situation to detain and arrest the offender without delay.
2.36 The Sub-committee is not convinced, however, that it is necessary to create a new Criminal Code offence to deal with the types of situations discussed in this part of the chapter. Instead, the Act itself should be amended to allow a police officer to arrest without warrant an offender observed to be in breach of a condition of any of the forms of conditional release. This would allow a police officer to arrest without warrant an offender observed to be in breach of a release condition in circumstances where it is not feasible to detain the offender until a warrant is obtained under subsection 18(6), section 118 or section 135 of the Corrections and Conditional Release Act. This amendment would provide police, corrections, and conditional release authorities with another means for dealing in a timely way with conditional release breakdowns.
RECOMMENDATION 3
The Sub-committee recommends that the Corrections and Conditional Release Act be amended to allow a police officer observing an offender to be in breach of a condition of any form of conditional release to arrest that offender without warrant.
2.37 Periodically, incidents occur in correctional facilities resulting in death or serious bodily injury. Both inmates and staff members have been the victims of these occurrences. Although after-the-fact investigations of such events can do little to affect them, they can be used to identify and address causes, policy gaps and weaknesses in day-to-day practices. Such investigations identify corrective steps to be taken to reduce the possibility of a reoccurrence of similar events, with at times tragic consequences. The implementation of recommendations arising out of such investigations contributes to the protection of those found in correctional facilities, inmates, staff and others.
2.38 Section 19 to section 21 of the Act deal with Correctional Service investigations. Section 19 requires the Correctional Service to conduct an investigation and report to the Commissioner of Corrections, whether or not there is an investigation under section 20, when an inmate dies or suffers serious bodily injury. The report resulting from such an investigation is to be provided to the Correctional Investigator. Section 20 of the Act allows the Commissioner to appoint persons to investigate and report on any matter relating to the operation of the Correctional Service. Finally, subsection 116(1) of the Corrections and Conditional Release Regulations requires the warden of a penitentiary to, among other things, report the death of an inmate to the coroner or medical examiner having jurisdiction.
2.39 The Union of Solicitor General Employees recommended to the Sub-committee that section 19 of the Act be amended to require an investigation when a staff member dies or suffers serious bodily injury.10 It set out its rationale in the following terms:
The Service is also responsible for the safety and health of its employees and therefore should conduct an investigation (neutral and impartial) when a staff member dies or is injured.11
2.40 The Sub-committee agrees with this recommendation and its underlying rationale. As indicated at the outset of this part of the chapter, properly constituted and thorough investigations will result in effective corrective actions being taken where needed. The consequence will be a safer work environment for correctional staff and a safer living environment for inmates.
2.41 Although it agrees with this recommendation in principle, the Sub-committee offers the following comments to clarify its finding. Any amendment to section 19 of the Act must only apply to death or serious bodily injury suffered by correctional staff while on the job. The subsection 19 (2) requirement to provide the report of such an investigation to the Correctional Investigator should not be applicable where death or serious bodily injury of correctional staff is involved, as that office investigates offender complaints. If section 19 of the Act is amended as proposed, there will have to be a consequential amendment to subsection 116(1) of the Regulations to require notification by the warden of a correctional institution to the local coroner or medical examiner.
RECOMMENDATION 4
The Sub-committee recommends that section 19 of the Corrections and Conditional Release Act be amended to require the Correctional Service to investigate and report to the Commissioner of Corrections on the job-related death of, or serious bodily injury to, correctional staff.
TEMPORARY ABSENCES - CITIZEN ESCORTS
2.42 As indicated elsewhere in this report, temporary absences are provided for by the Act in two forms - escorted and unescorted. These elements of the conditional release system are essential to the planned and gradual reintegration of offenders into the community as law-abiding citizens. This means of encouraging the maintenance of family and community ties by offenders is an important element in efforts to protect society, and results in a reduction in the rate of reoffending. The Sub-committee sets out its findings and recommendations on temporary absences and work releases elsewhere in this report. This part of the chapter deals only with the issue of those who may act as escorts in escorted temporary absences.
2.43 Correctional Service staff may act as escorts in both security and non-security contexts. Citizen escorts may only participate in such low-security contexts as Alcoholics Anonymous meetings, Narcotics Anonymous meetings, chaplaincy programs and community service projects, to meet individual offender needs identified in the correctional plan. Citizen escorts are drawn from individual volunteers, faith-based groups, non-governmental organizations, citizen advisory committees, and Aboriginal communities.
2.44 Citizen escorts are selected by the warden of a penitentiary, depending on offender needs. Prior to being selected, they are screened and given an enhanced reliability and criminal records check. They are provided with orientation and training on the correctional system and policies and their escort responsibilities. From time to time, ex-offenders are accepted as volunteer citizen escorts after a rigorous review of their own rehabilitation.
2.45 The issue of citizen escorts was brought to the Sub-committee's attention by the Union of Solicitor General Employees.12 They recommended that section 17 of the Act be amended to require that only Correctional Service staff be permitted to act as escorts in relation to escorted temporary absences. The rationale for this proposal is as follows:
This duty and responsibility should be solely that of a staff member who has peace officer status and has received appropriate training to ensure the safe and humane custody and supervision of offenders.13
2.46 The Sub-committee shares this concern for the safe and secure escorting of offenders temporarily present in the community during relatively short periods of time and for specific purposes. The requirement that all escort duties be performed by Correctional Service staff, however, goes too far. If a staff person has to go along on every escorted temporary absence, it will take them away from their regular duties in correctional facilities, and because of the limited number of staff available, it will make escorts more difficult to obtain, resulting in the decreased use of a largely successful program.
2.47 The Sub-committee believes, however, there is merit to the concern underlying the recommendation made by the Union of Solicitor General Employees. Protection of the public is best secured by an effective escorted temporary absence program, and by competent, well-trained and briefed escorts. These escorts can be either Correctional Service staff or civilian volunteers. Because there have been escort failures in the past, the Correctional Service has the important responsibility of ensuring that escorts are properly screened, selected, trained and briefed.
2.48 At the present time, subsection 115(3) of the Act provides that unescorted temporary absences are not available to inmates classified as maximum security. This provision recognizes the reality that these inmates represent a high probability of escape, a high risk to public safety if they do escape, and require a high degree of supervision and control in the penitentiary.14 The Sub-committee believes that this reality of maximum-security inmates has to be recognized in the selection of those to be assigned as escorts for escorted temporary absences. Although it is unlikely maximum-security inmates will be accompanied by citizen escorts, this should be made clear in the legislation. Therefore, the Act should be amended to require that only Correctional Service staff, having received appropriate training, are to act as escorts of maximum-security inmates on escorted temporary absences. The effect should be fewer escort breakdowns and the successful completion of escorted temporary absences.
RECOMMENDATION 5
The Sub-committee recommends that section 17 of the Corrections and Conditional Release Act be amended to require that only Correctional Service staff be authorized to act as escorts in the escorted temporary absences accorded to maximum-security inmates.
2.49 Although public protection is the paramount consideration to govern the exercise of responsibility by corrections and conditional release authorities, many other factors must also come into play. Corrections and conditional release authorities are to not only carry out the court-imposed sentence of imprisonment by providing safe and humane custody and supervision of offenders, but assist those in their charge to be safely rehabilitated and reintegrated into the community as law-abiding citizens. These goals are always subject to the requirement that they be carried out in such a way as to promote public safety.
2.50 The rest of this report has been developed within this context. Effective programs, within both the penitentiary and the community, and a conditional release and supervision system that works provide the step-by-step gradual process by which offenders successfully make their way back into the community. These are the goals of the Sub-committee's findings and recommendations.
2
# Brief, p. 2.4# R.S.C., c. C-34, as amended, section 52.1.
5# R.S.C., c. C-46, as amended, section 462.3b(1).
6# S.C. 1999, c. 5, section 50.