SCRA Committee Meeting
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SUB-COMMITTEE ON CORRECTIONS AND CONDITIONAL RELEASE ACT OF THE STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS
SOUS-COMITÉ SUR LA LOI SUR LE SYSTÈME CORRECTIONNEL ET LA MISE EN LIBERTÉ SOUS CONDITION DU COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE
[Recorded by Electronic Apparatus]
Monday, November 22, 1999
The Chair (Mr. Paul DeVillers (Simcoe North, Lib.): I'd like to call this hearing, this round table, to order. On behalf of the subcommittee, I'd like to thank everyone for coming.
I welcome all of you. We are meeting here this evening to discuss a very important issue, namely, statutory release.
As far as the format is concerned, we'll go around the table, maybe in the order we're seated and as each group or individual is outlined on the agenda.
Did you all receive a copy of the agenda? Good.
We have Professor Anthony Doob, who will be making a submission as an individual, and we have Dr. Julian Roberts, likewise.
The Barreau du Québec, the Bar of the Province of Quebec, is represented by Carole Brosseau and Jacques Normandeau.
We have, from the Canadian Association of Chiefs of Police, Mr. Cuthbert. Are you also going to be speaking on behalf of the Canadian Police Association? Apparently Mr. Giffin is not well.
Superintendent Peter Cuthbert (Canadian Association of Chiefs of Police): No, I do not speak on behalf of the Canadian Police Association. I speak on behalf of the Canadian Association of Chiefs of Police.
The Chair: Okay.
From the Canadian Association of Elizabeth Fry Societies, we have Kim Pate. And we have Professor Michael Jackson from the Canadian Bar Association.
The Canadian Criminal Justice Association is represented by Rob Tropak and Gaston St-Jean.
The Canadian Police Association's David Giffin was supposed to be here, but we understand he won't be able to attend. We have Steve Sullivan from the Canadian Resource Centre for Victims of Crime, and Graham Stewart from the John Howard Society of Canada.
The Quebec Association of Social Rehabilitation Agencies is represented by Johanne Vallée and Madeleine Ferland.
Elizabeth White from the St. Leonard's Society.
Maybe the simplest thing to do is just go through them in the order they are here. So we'll have five-minute submissions, and after everyone has made their submission, we will allow for open discussion.
First on the list would be Dr. Anthony Doob.
Dr. Anthony N. Doob (Individual Presentation): You have a written submission from me, and I'm going to summarize that.
It's my understanding that you're considering the possibility of abolishing statutory release as we now understand it and giving the parole board the authority to determine release during the final two-thirds of a prisoner's sentence. I strongly urge you to reject this suggestion for the following three reasons.
First, if all one cared about was whether people committed offences prior to warrant expiry, the solution would be simple: hold all prisoners until warrant expiry. If, on the other hand, one is concerned with all offences committed by those who have served time in penitentiaries, one has to ensure that all prisoners have full benefit from programs of gradual release.
What abolishing gradual release would mean is that those offenders who are in greatest need of gradual and controlled release into the communities would be least likely to get it. They would be most likely to be released at, or immediately before, warrant expiry. In other words, what you'll be creating is a situation where you trade a relatively small number of offences created by those who are released at present, for what would be almost certainly a larger, and perhaps much larger, number of offences committed by those released later in their sentences.
Thus, rather than increasing public safety, the proposal you're apparently considering would almost certainly decrease public safety and cost lives. The fact that such crimes might not be as newsworthy as crimes committed by those still serving sentences should be of little comfort to you or anyone else truly interested in public security.
The overall impact of abolishing statutory release is fairly easy to predict. Many more prisoners than at present would serve a high proportion of their sentences in prison.
Looking at the release of federal prisoners in 1997-98, we find there were about 4,900 prisoners released on statutory release. This is up from the previous two years. This bunching up of prisoners being released at statutory release combined with a substantial number of releases at warrant expiry gives a rather clear picture of the impact of statutory release on the release of prisoners more generally.
The parole board is increasingly reluctant to grant parole. Indeed, the number of prisoners hitting the streets on statutory release now far exceeds the combined number being released on day parole and full parole combined. The data demonstrate quite clearly one important finding: if statutory release were abolished and there were no normal release date prior to warrant expiry, prisoners would spend considerably longer in prison.
This is of course what some advocates of the abolition of statutory release would want. They are in effect asking for harsher sentences, which clearly would be the impact of the abolition of statutory release. I trust that this committee is not considering this proposal simply as a somewhat dishonest way of increasing the length of sentences through this back door method.
I estimate that about 2,400 to 3,600 additional prisoners would have to be accommodated in this proposal in our penitentiaries on a permanent basis. This is, I believe, a conservative estimate of the direct impact. Turning this estimate into dollar costs, we're talking about an annual continuing cost of between $123 million and $184 million a year. This is in addition to a capital cost of between $360 million and $540 million. These estimates for construction are coming from the Auditor General in 1993 dollars.
An alternative use of this money can obviously be found. One way would be to think in terms of dealing with proven programs to reintegrate youths. If you were to do that, you could spend additionally between $12,000 and $15,000 for reintegrating and rehabilitating every youth in Canada who's found guilty of a non-trivial violent offence.
This is only one possible use of these funds for increasing public security. If you're willing to make a proposal that costs over half a billion dollars in the first year and $123 million to $184 million each year thereafter, it's important for you to ask whether it's the best use of funds for public security. If you look, you will find the answer. It's not difficult to find useful places to spend these funds and to spend them better for the use of public security.
The third reason is that the issue of the meaning of imprisonment is a complex one and probably needs attention in criminal law. The Canadian Sentencing Commission 12 years ago, though its primary mandate was sentencing, made recommendations with respect to conditional release because it's inextricably linked to sentencing. The Canadian Sentencing Commission was adamant that recommendations to change conditional release had to be made in conjunction with considerations about sentencing. It would, quite frankly, be irresponsible to recommend dramatic changes to conditional release without looking at the impact on imprisonment on the one hand and sentencing on the other.
If the committee wants to give serious study to this or similar proposals, I would urge you instead to recommend in your report that the issue of the meaning of a sentence of imprisonment be studied. It is an important topic and should not be dealt with quickly, nor should recommendations for dramatic changes be made without full and open debate.
Thank you very much.
The Chair: Thank you, Dr. Doob.
Next, Dr. Julian Roberts.
Dr. Julian Roberts (Individual Presentation): Thank you for the invitation to the committee.
I don't have a written submission. I just have a few points that I'll make very briefly.
The essence of my perspective is to remind the committee, or bring back to the committee, a sense of the historical origin of some of these provisions. I've been involved in sentencing reform since about 1984 with the Canadian Sentencing Commission, and one of the things I've heard a lot from members of the public, whom I study, is a certain degree of a lack of patience. Why can't we do this? Wouldn't it be simpler if...? I think there's a certain amount of lack of patience on this issue too. It would be simpler perhaps if we abolished statutory release and used the parole mechanism, but that's not the issue. There's no merit or virtue in simplicity alone, and I'll give you two examples of that.
Category-based release is a simple solution. Anyone convicted of a certain offence should receive a certain penalty or be released under a certain releasing condition. Three-strikes legislation in the U.S. has the great advantage of simplicity. The only problem is that it's pretty useless. There's no virtue in simplicity. It's a complex matter. There is a virtue in clarity and accountability, and that's what I would bring you back to.
Somebody asked, what's the utility of a statutory framework or rule regarding sentence administration? Again, I would say go back in history. Our Parliament chose to impose the statutory framework that we have under the Corrections and Conditional Release Act. If you want to know why they chose to impose the conditional release system that we have, go read Hansard, because the answer is there. It's a complex issue that cannot be addressed by bootstrapping in the way that's being proposed.
I would urge you to be practical and concentrate on the likely impacts of such a proposal, and I would say be very prudent in adjusting the architecture of conditional release in this country. It is, as Tony Doob has mentioned, a very complex issue, and that's why the Canadian Sentencing Commission and other organizations, including the Law Reform Commission of Canada in its former incarnation, suggested that changes be evaluated with a view to the entire system and not simply on their own.
I'd also like to make the distinction between what I see as a crime reduction suggestion and what may well be mere punitiveness. One of the suggestions made this afternoon was that a violation of one of the conditions of statutory release become a criminal offence. It seems to me that the crime reduction or the crime prevention advantage of that is minimal. It's simply being more punitive. If somebody violates a substantive condition of conditional release, then they should be returned to prison, and making it a criminal offence is not going to help in any way.
I would ask you also to look at the general architecture of the sentencing structure in this country, whereby under a conditional sentence order, violation of a condition of a conditional sentence order is not a criminal offence. That's a statute that received the approbation of Parliament three years ago. So you have to keep the past in mind.
As far as the likely effects are concerned, I would identify two. I think there's general agreement that the abolition of statutory release, or the replacement of statutory release, would result in an increase in the use of incarceration and therefore the costs of incarceration. There may be some disagreement as to the exact magnitude of the costs, but they're going to increase. Prison time is going to increase. That must be borne in mind and should be studied in detail by correctional officials and by Parliament.
The second issue is the question of to what extent this proposal will result in a crime reduction benefit, prevention of crime by people released on statutory release who will now be released by some other means or detained. There, I would simply say that I will recall to you Mr. Ingstrup's statistic of less than 1%, half of 1%. That's all you have to play with. So if you're talking about adjusting the statutory release provision or mechanism, that's where the crime prevention advantage is going to be gained, in a magnitude of less than half of 1%. The question then becomes one of a cost-benefit analysis. I think you'll find, if you undertake the statistical analysis, that it may not be worth the price that some people are willing to pay.
Thank you very much.
The Chair: Thank you, Dr. Roberts.
We will now hear from the representatives of the Barreau du Québec, Miss Brosseau and Mr. Normandeau. You have five minutes.
Ms. Carole Brosseau (Lawyer, Criminal Law Committee, Barreau du Québec): Thank you, Mr. Chairman. We are in agreement with some of the arguments made by Mr. Roberts and Mr. Doob. We concur with their conclusion that an open and comprehensive debate should be held on the issue.
Statutory release is not a question that can be examined in isolation, separated from the whole conditional release evaluation process. In March 1999, the Barreau du Québec produced a detailed brief on this issue, as well as on all the other issues raised by the Standing Committee on Justice.
This brief explained that, as Mr. Roberts pointed out, statutory release is tied up with the whole question of sentencing. The consequences of changing or even abolishing statutory release would have to be evaluated.
When we talk about accountability, what we are referring to is the accountability of the penal system in general, and the accountability of correctional services for institutional treatment or for the process of gradually reintegrating individuals into society. Conditional release is a complex process having many aspects.
Mr. Jacques Normandeau (Lawyer, Barreau du Québec): I've worked in criminal justice for nearly 12 years and I can tell you that abolishing statutory release will not solve any problems; on the contrary, it would probably create some. I fear that it would cause individuals to re-offend more rapidly. I think that it is important to always remember that the cases that get to the statutory release stage are often those which were referred to, in maximum security penitentiaries, as cases where the system had failed. These were cases for which we had been unable to obtain release as part of a day parole or ordinary parole program. We found that inmates released on statutory release were those who presented a greater risk.
In the final analysis, incarcerating someone for an extra year or year and a half only delays the release date and relieves the correctional administration of its responsibility. We are transferring the problem directly to society, instead of trying to solve it. There is no question that the majority of individuals who are granted statutory release are the more complex cases. However, the fact that these are overly complex cases should not mean that we do not try as hard to solve them. Quite clearly, it will be the citizens on the outside who will consequently have to pay for this lack of effort.
From my long experience in this field, I am in a position to affirm that good results have never been obtained with people who served a long sentence and were released without supervision.
There were suggestions for another system of supervision to be established by the court afterwards. It would be wrong to think that this system would be able to assess each file from the court as soon as an inmate was released at the end of a warrant of committal. Generally speaking, these people have many more problems, are much harder to control and need more support. If we leave them to their own devices, we would be throwing in the towel. The result would be exactly the opposite of our goal. Individuals would re-offend more quickly, sentences would be longer and, in the end, the taxpayers would have to foot the bill.
In my opinion, while a person is imprisoned, we should be doing everything we can to help this person adopt responsible behaviour in society afterwards. Extending the period of imprisonment will not achieve this purpose; the result will be exactly the opposite. In the final analysis, it may be a strictly mathematical exercise. Don't forget that, if we introduced a system on January 1 of year 0, we would only be delaying the release of all those who would have been released on this date by approximately one year and a half. At the end of this one and a half year, we would likely end up seeing the same number of people released every month, but they would be released now without any supervision. We would be playing Russian roulette, and the citizens on the outside might be the losers. Thank you.
The Chair: Thank you very much.
Now, from the Canadian Association of Chiefs of Police, we have Superintendent Cuthbert.
Supt Peter Cuthbert: Thank you, sir. My name is Peter Cuthbert. I am a member of the Canadian Association of Chiefs of Police and a superintendent with the Ottawa-Carleton Regional Police Service.
I'd like to begin by conveying to the committee the apologies of OPP Commissioner Boniface, chair of the law amendments committee for CACP, and Mr. Vince Westwick, vice-chair, both of whom are unable to attend this evening.
At the same time, may I thank the chair of the subcommittee for again inviting the CACP to present the views of chiefs of police and executive police officers from across Canada.
The CACP has had firm views on the issues of statutory release since the bill was first reviewed by this committee. May I read to you a short passage from page 71:7 of the Hansard, dated December 13, 1994:
But we think by the same token a sentencing judge ought
to be mandated to consider the actual release date. If
you have a situation, as you do now, where there is
statutory release under the act, as you'll be hearing
about in a few minutes, under the existing law now,
where a three-year sentence automatically means a
two-year sentence, our view is that this also ought to
be considered by the sentencing judge. We go further
than that. We say the sentencing judge should give at
least some consideration to what the actual release
date is and refer to it in his or her reasons.
The reason for that is we're not here saying we want
higher or longer sentences, although that would be
nice. We are saying that when the sentencing judge
stands up and talks to the community about his or her
reasons, they ought to be saying exactly what it is
that is going on in the process. In other words, if
the intention is that the person will serve a minimum
of one and a maximum of two years, then the
sentence should say that rather than saying, with the
harsh words and rhetoric that surround it, this is a
three-year sentence. In our view, that kind of thing
is what undermines public confidence, community
confidence, and confidence in the criminal justice
That was a passage from the Hansard report on the proceedings of this committee on December 13, 1994 and was part of the submission of the CACP presented by Mr. Vince Westwick, now vice-chair of the law amendments committee of the Canadian Association of Chiefs of Police.
Currently, as I understand the law, a sentence is broken down like this. After six months, the warden has the right to allow an offender out on temporary absence passes or work release without parole board involvement. Six months prior to the eligibility for parole, the offender is eligible for day parole. After one-third of the sentence, the offender is eligible for full parole, although the sentence judge can order that be moved to one-half of the sentence. After two-thirds of the sentence, the offender is automatically released, subject to mandatory supervision. The Correctional Service can detain someone for full sentence only where they can establish a reasonable belief that the offender will cause serious bodily harm or death—so-called gating.
The issue before you is a statutory release after two-thirds of the sentence. The CACP does not support the current makeup of sentences. The CACP believes the public does not understand or support the statutory release provisions and indeed is outraged when they discover the offender is released automatically after two-thirds of his or her jail sentence.
The CACP is not conceptually against a sentence that is made up of jail, parole, or some type of supervision. The CACP's concern is that the sentence should be open, transparent, and spelled out by the sentencing judge so that it is clear and understandable by the community and by victims.
Perhaps the best way to describe our counter is to look at a three-year sentence. The judge says “Three years, but...”. Right off the bat, everyone knows the person will be out after two years, perhaps with parole after one year. We are certain most communities do not know the warden can release someone after six months.
Our view is that the sentence should read, “Two years, with parole eligibility after one-half of the sentence”. The sentencing judge should set the terms of the community supervision with a probation order. This more reflects what the community can understand, expect, and support. There is more clarity.
In conclusion, the CACP believes that the structure of sentences related to statutory release contributes to a lack of public confidence in sentencing; that the same principles can be applied in a way so that the sentence is spelled out more clearly; that probation should replace mandatory supervision and should be directed by the judge; that Correctional Service Canada should have the ability to amend the probation conditions; that under this scheme, full eligibility ought to be pushed back to one-half the sentence; and finally, that no person ought to be released into the community on a temporary absence pass or work release without parole board approval.
I wish to thank the committee and the chair for the opportunity to put forward the submissions of CACP on this very important topic.
The Chair: Thank you very much.
Now, from the Canadian Association of Elizabeth Fry Societies, we have Kim Pate.
Ms. Kim Pate (Executive Director, Canadian Association of Elizabeth Fry Societies): I want to thank the chair and the committee for allowing us the opportunity to meet with you and speak to this issue.
I'm tempted to correct a number of things I've just heard, but suffice it to say it's important to remember that statutory release is not automatic, and although it is a right, it is a revocable right.
It's also important to remind ourselves that in fact the reason statutory release is in the legislation is that it is one of the key tools for managing a sentence and managing the release of a sentence in a way that ensures that those who are seen as a risk—not the greatest risk, because those are the individuals who are deemed detainable and referred for detention—are released into the community with some supervision, that they're not released at the end of their sentences without any supervision.
I think it's important that we focus on the fact that we see increasing numbers of people being detained, as well as people being released at the statutory release date with residency provisions, for precisely that reason—an attempt to try to best manage sentences.
It's important also to be aware that the research that's been done on detention in fact shows that the Correctional Service Canada and the National Parole Board are being extremely cautious when they do refer. We've already heard evidence about the recidivism rates, in particular the reoffending rates and the violent reoffending rates, of prisoners while on statutory release.
I think it's also important to bear in mind that when we look at women in particular, we know there are many reasons that women either wait until their statutory release date or are released on statutory release with very few options. One is that we currently have a dearth of community release options in this country. As we heard very clearly this afternoon from the commissioner of corrections, we run the risk of significantly more resources going into further incarceration of women prisoners, particularly aboriginal women, at a time when we have insignificant and insufficient resources for their community release.
I think it's also important to point out that at the same time as this committee appears to be considering whether or not to retain statutory release for adult offenders in the youth criminal justice act—the new bill that has just been introduced—based on the experience of practitioners, the research that's been done, the relative success of individuals on statutory release, the importance of ensuring that there is supervision of those who are seen as at risk, and the fact that we've had a very high recidivism rate for young people who do get released at the end of their sentence and don't have any kind of statutory release or releasing mechanism.... At the same time, in the new youth criminal justice bill there are plans to introduce a similar sort of mechanism because of the proven success in the adult system.
So I think the fact that we are seeing the introduction of community release versus the continued suggestion of their release at the end of sentence signals that there's research that those who are developing the policy, who are developing the legislation, have deemed to be necessary. Before one starts to consider reducing the community release options that are available, we need to ensure that the long and considered study of this very complex area, as my colleagues Tony Doob and Julian Roberts have suggested, is undertaken.
Thank you very much.
The Chair: Thank you very much.
Now, on behalf of the Canadian Bar Association, Professor Michael Jackson.
Dr. Michael Jackson (Member, Committee on Imprisonment and Release, National Criminal Justice Section, Canadian Bar Association): Thank you, Mr. Chairperson.
I think it's very important, as several other of the witnesses have told the committee this evening, to approach this issue with a clear understanding of recent history. There was a good deal of give and take this afternoon between members of the committee and the witnesses on exactly what statutory release is. Is it a right? Is it a privilege? Is it entitlement? I'm not going to engage in a legal analysis of it, except to say I think it's a presumptive entitlement.
More important than winning the contest for the correct characterization of statutory release—after all, I am a lawyer—is an understanding that as recently as 1970, a prisoner in this country who got to the two-thirds point was released into the community and the sentence expired by operation of law. That person was free in every sense of the word. From that point to 1999, that last third is now a permission to be “slightly free”, as one perceptive criminologist described it. You're out subject to a variety of conditions, which can be extremely onerous, and you can be brought back for, as we've heard this afternoon, far short of a criminal offence. So I think it's important to understand that.
Far more important than that, however, is understanding the discussion and the debate about statutory release in the context of other more recent amendments to the whole structure of sentencing. This House engaged in a lively and lengthy debate in the passage of Bill C-41, which—and this is very important—for the first time in Canada's history incorporated into the Criminal Code of Canada principles of sentencing, a landmark in the development of a mature criminal justice system and long overdue.
The primary element in that overhaul and codification of sentencing principles was the importance of restraint in the use of imprisonment. Professor Doob and Professor Roberts have suggested that you go back to Hansard. I can perhaps save you the laborious job of doing that by referring you to the decision of the Supreme Court of Canada in the Gladue case in April 1999. The Supreme Court reviewed the legislative history leading up to the enactment of Bill C-41, which introduced sentencing principles and also introduced, for the first time, conditional sentences into the lexicon of Canadian criminal law.
In reviewing that history, the Supreme Court concluded:
...the government position when Bill C-41 was under
consideration was that the new Part XXIII was to be remedial
in nature. The proposed enactment was directed, in
particular, at reducing the use of prison as a
The court highlighted both the general problem of overincarceration in Canada and the particular problem of overrepresentation of aboriginal peoples within Canadian prisons. The commissioner of corrections, Mr. Ingstrup, this afternoon cited from the Gladue decision, but I think it's worth while reminding the committee again what the court said:
Canada is a world
leader in many fields, particularly in the areas of
progressive social policy and human rights.
Unfortunately, our country is also distinguished as
being a world leader in putting people in prison.
The court related our lofty position on the unenviable list of countries that put people in prison. The court concluded that “This record of incarceration rates obviously cannot instil a sense of pride.”
Abolishing statutory remission with the necessary consequence that more people will serve longer periods of their sentence in custody drives a coach and horses through the principle of restraint in the use of imprisonment. Far from being remedial, it would push the Canadian criminal justice policy in an even more shameful direction.
The second point I want to emphasize is that the impact of the abolition of statutory remission on aboriginal prisoners is a matter of particular concern to the Canadian Bar Association, and we would submit that it should be of particular concern to all Canadians.
The issue of overrepresentation of aboriginal peoples was the particular focus of the Gladue decision. In its unanimous decision, the Supreme Court reviewed the now all-too-familiar figures of aboriginal overrepresentation. It cited from a report of the Canadian Bar Association in 1988 entitled Locking up Natives in Canada, where the bar said:
become for young native men, the promise of a just
society which high school and college represents for
the rest of us. Placed in an historical context, the
prison has become for young native people the
contempory equivalent of what the Indian residential
school represented for their parents.
Based upon that and its own analysis, the court concluded:
These findings cry out for recognition of
the magnitude and gravity of the problem, and for
responses to alleviate it. The figures are stark and
reflect what may fairly be termed a crisis in the
Canadian criminal justice system.
Far from alleviating the crisis, the abolition of statutory remission will aggravate it. I say that for these reasons.
Correctional Service Canada's overview of statistical findings on aboriginal offenders, which were compiled as part of the five-year CCRA review and which have been placed before this committee, show that aboriginal offenders are far less likely to be granted full parole, and they are more likely to be detained until warrant expiry. In other words, they receive less benefit from discretionary release and are burdened disproportionately by discretionary detention.
Any changes in the legislative regime that on a system-wide basis would result in greater periods of time spent in custody and would enlarge the scope of discretionary release will have the inevitable, albeit unintended, consequence of intensifying the systematic discrimination against aboriginal offenders. Justifying such a policy shift requires a compelling demonstration that public safety will be advanced. No such demonstration has been offered, nor, in our view of the evidence, can it be.
Thank you, Mr. Chairman.
The Chair: Thank you very much.
We'll now hear from the Canadian Criminal Justice Association, Rob Tropak and Mr. Gaston St-Jean.
Mr. Rob Tropak (President, Canadian Criminal Justice Association): Thank you, Mr. Chairman.
We have provided copies of our brief to the subcommittee, but we were unable to translate our documents into French prior to tonight's hearing. We apologize for that.
Statutory release is a product of the CCRA, which abolished earned remission and replaced it with statutory release at the two-thirds point of all penitentiary sentences and resulted in the supervision of inmates to warrant expiry date.
According to the most recent figures published by the National Parole Board, the statutory release population increased from 2,086 in 1992-93 to 2,699 in 1998-99. That's an increase of some 23% since the coming into force of the CCRA. From 1998 to 1999, statutory release accounted for some 4,430 releases, which is 55% of all releases from penitentiary, which closely coincides with the average of 55.8% for the preceding five years, beginning in 1994-95.
The size and composition of the federal offender population has shifted in the past 10 years, reflecting national crime trends, particularly trends in violent crime. The shift has had an impact on the operation of statutory release. A long-term rise in violent crime affected the size and composition of the offender population, which now counts higher numbers of violent and sexual offenders, many of whom are denied parole or see their parole revoked. All these factors contribute to increasing numbers of offenders reaching their statutory release date.
Our main concern is that a large proportion of inmates receive no other form of release prior to statutory release. This points to a clear need for increased efforts to develop effective reintegration programs, both within institutions and the community. With only four out of ten inmates being granted parole, efforts should target the remaining six and foster their participation in programs developed to meet their specific needs. When they are denied parole, many inmates give up and simply wait for statutory release. The prospect of being released early on day or full parole through their participation in programs should be encouraged in their best long-term interest and that of society.
Over the past five years, approximately 60% of statutory releases were completed successfully. A real impact would result from not releasing those who complete their statutory release period successfully. The proportion of offenders released directly from a federal institution to statutory release, with no previous day parole or full parole, has increased 23% over the past five years, from some 42% in 1994-95 to 65% in 1998-99.
Thus, the pure and simple abolition of statutory release does not appear an appropriate option, and if no counter-balancing measure were implemented, it would constitute an unreasonable alternative. Under such circumstances, it would be preferable to maintain statutory release if only to ensure a gradual reintegration process and a period of supervision, which appears to have a positive impact in 60% of cases, in addition to reducing prison population numbers.
In conclusion, we cannot comfortably support pure and simple abolition of statutory release at this time, unless a better option is put forward. At the very least, statutory release provides for gradual release and community supervision for a limited period of time, concepts that have always been supported, as it alleviates the pressure on prison population. But that in itself would not be acceptable as the only acceptable reason to retain statutory release.
In our view, what is needed is comprehensive reform in the areas of sentence management and release planning, which would enhance the CSE's stated mission of actively encouraging and assisting offenders. It would ensure that all energies were devoted to better preparing the offender for release and that every encouragement was given to the offender to participate in targeted programs that would be of assistance to him or her. It would ensure that every possible support was provided in the community to favour his or her integration and reduce the potential for reoffending.
The current review of the CRA has highlighted statutory release as a particularly delicate issue with many ramifications. We suggest it be studied more in depth, that alternatives and their impact be explored, and that a further review on such specific matters occur three to five years from now.
Without taking away from the emphasis that needs to be placed on statutory release, we have long been calling for a review of sentence management and release provisions that would ensure consistency throughout the correctional process. We would therefore welcome such review being undertaken at the same time.
The Chair: Thank you very much.
Next, from the Canadian Resource Centre for Victims of Crime, is Steve Sullivan.
Mr. Steve Sullivan (Executive Director, Canadian Resource Centre for Victims of Crime): Thank you, Mr. Chairman. It's good to be here once again to share our views with the committee on the CCRA and, in particular, statutory release.
For the record, I am one of those people who support parole. I think the philosophy behind parole is a good one. It makes much more sense to release someone into the community early and supervise them there. I'm not one of those dishonest people Mr. Doob referred to, though, who believe that in doing away with statutory release we are lengthening someone's sentence. The sentence is what it is, whether that person serves the sentence in prison or in the community. Whether you have statutory release or you don't, you're not going to increase a person's sentence.
I listened to the debate earlier today and I listened to all of your insightful comments, but it doesn't make sense to say you're afraid of having someone assessed by the parole board, because they're going to look at that person and say, “No, he's too high a risk to release into society; instead, we're going to release him anyway.” It doesn't make any sense. If the person is too high a risk for the parole board to release, maybe that should tell us something.
Certainly the numbers for people who are released on statutory release, on serious offences, are much higher than for those who are released on day and full parole. If you look at accelerated parole review, the success rates for people who are assessed by the parole board are much higher than for any kind of automatic release, whether it's APR or statutory release.
We've heard a lot about what it will cost us and the threats about having to build more prisons. I still can't understand, if the success rates are so high in statutory release, why we can't put that trust in the parole board to say whether these people are good for release or not. If they are successful candidates on parole, then perhaps they're good candidates for release, and the parole board can make that decision. Although he didn't say it today, Mr. Gibbs made comments earlier in the media that he had concerns about the parole board's lack of involvement in statutory releases.
The other point that bothers me is the discussion we're having that if you don't have statutory release, you must have an automatic rule by the parole board. There seems to be no common ground, but there should be a way. We made two recommendations when we came to this committee. First, we don't support automatic release through the statutory release mechanism. We believe in what Madame Venne referred to—parole based on merit.
The way the system currently works—and you're all aware of this—if CSC does not make a referral for intention, the parole board has no choice and has no mechanism to say that person can't be released. We recommend the parole board, even in absence of a referral from Corrections Canada, be given a role in reviewing that case. The assumption is that he will be released. If the CSC doesn't make the referral, the parole board would still have the power to say whether they're going to keep him in or not.
It comes down to a choice of saying “Yes, we believe in parole; yes, we believe in giving people encouragement.” Mr. Tropak referred to how some inmates, when they're denied parole, simply give up and wait for statutory release. What are we teaching them about responsibility if we just say “Okay, you failed the parole, but just wait until stat release and we'll let you go”? Wouldn't it be more encouraging to say to these people, “You didn't get it at one-third, but if you work hard enough you can get it at two-thirds”. That would be teaching people something.
Those are the comments I'll make in the beginning. We shouldn't frame this as one thing or another. There could be some common ground.
The Chair: Thank you very much.
From the John Howard Society of Canada, we have Mr. Graham Stewart.
Mr. Graham Stewart (Executive Director, John Howard Society of Canada): Thank you, Mr. Chairman. I'm pleased to be here tonight. As you are aware, I've written to the committee and submitted a document that sets out some of the facts and the basic arguments.
I'd like to begin by saying that when I began with the John Howard Society in 1969 there were two ways out of prison for a federal offender. One was parole, and the other was on expiry of the sentence with remission. At the two-thirds point of the sentence the person was released free and clear, having had the length of the sentence remitted. It was the sentence that was remitted, it wasn't an early release program. The sentence was in effect shortened.
There was a lot of enthusiasm about parole in those days. It was the belief that it's a supervision process, and the assistance that went with it was helpful to those coming out of jail and reduced the possibility of offending in the future. It didn't make sense that those who were considered to be the ones we worried about the most had the least assistance, the least supervision, available.
The fact was that statutory release—or mandatory supervision, as it was called then—was devised as a way to supervise people without reducing one day of the time they spent in prison. Parliamentarians in those days were just as concerned about looking soft on crime as they have been since. The solution was a neat one. We can have them serve every day in prison they're currently serving plus we can add this period of supervision if we convert remission to supervision, and that's what was done.
Over the years the success with statutory release I think has shown that release under supervision has actually reduced criminality over the longer term, and it has not been at the risk of public safety for the reasons I've already stated, that those were people who would not have been in jail anyway. Abolishing statutory release, or denying it for any individual, increases the prison term by 50%. The sentence hasn't changed, but the term in prison has. That's a massive increase in incarceration.
If it's done on a general scale with the whole prison population, it's unprecedented to see as an administrative back-end measure such a step that would have such a huge implication. It contradicts the principles of sentencing that were recently passed by this government. It contradicts the principles in the CCRA. It would take place in the context of Canada already having one of the highest incarceration rights in the world, a very substantial high rate. It will not reduce crime over the longer term. It will be a huge expense. Unless such a measure were to take place along with a huge increase in the budgets for Correctional Service Canada, then we have to understand that one of the expenses will be to strip out of Correctional Service Canada any spending that is currently put on programs of treatment and rehabilitation, many of which have been well demonstrated now in their own research and research around the world to reduce criminality in the long run. So the implications go well beyond just costs; it speaks to the fact that even those who would be otherwise released on parole will not have the benefits of programs they currently would have.
Canada is lucky in the sense that we do have a correctional system that does put major priority and focus on rehabilitation and reintegration and sees that as its task. I think a measure that would diminish this would be a tragedy in terms of the whole development of what constitutes corrections as opposed to a system of just punishment internationally.
The obligation of corrections is to reduce reoffending, whether during the period of sentence or thereafter. That's not just my philosophy, it's not just an idea I have; that's the law. That's the law today in the CCRA. It's to return a person to the community as a law-abiding citizen, not just till Tuesday, not just till next month, but as a law-abiding citizen. That implies a longer-term solution that can't be cut off arbitrarily.
My view is that moving away from a gradual release mechanism is a way of abdicating responsibility for reintegration into the community, which I think the government must have and must maintain. When we abdicate that, we effectively leave the whole matter of reintegration into the community and crime reduction in the community to the police and to the voluntary sector. We have neither the resources nor the authority to be effective, as we've seen full well with the detention provisions and the horrendous situation that's developed these days with the practice of driving people from community to community as fugitives.
Detention is not the model under which we should build our correctional system and a conditional release system.
Let me say finally that I believe very strongly that we do not have conditional release because we think the offenders deserve it. This is not clemency. We have a form of conditional release because they need it and we need it if we're truly working towards a system that will reduce criminality over the longer term.
The Chair: Thank you very much.
We will go now to the representatives of the Quebec Association of Social Rehabilitation Agencies, Johanne Vallée and Madeleine Ferland.
Ms. Johanne Vallée (Executive Director, Quebec Association of Social Rehabilitation Agencies): I would like to thank the committee members for inviting us to testify before you.
Our position is founded on a fundamental goal, namely, the peace, safety and well-being of communities, and on the straightforward principle that offenders must be held responsible for their actions while society must act in a responsible manner to ensure they are reintegrated into the community.
The volunteers who head up the community organizations that assist adult offenders, and who are our members, are deeply convinced that, in order to protect the citizenry and ensure the social rehabilitation of offenders, we need good correctional programs, continuity between these programs and those offered in the community, supervision and close monitoring of offenders as part of a gradual release program.
We believe that the most effective measures are those designed to reinforce the offender's sense of responsibility, and that these measures should be implemented at the very beginning of the sentence.
We feel that statutory release is a pragmatic measure. In our opinion, the legislator has provided a mechanism that will ensure the supervision or monitoring of individuals who, in any event, are going to end up on the street. It is therefore of a preventive nature.
Furthermore, we must recognize the challenges posed by this type of release. Our experience in Quebec has shown that many of the individuals who are granted statutory release are often very much against other forms of release and the conditions that accompany them. In some cases, they also prefer to do time rather than take an active part in the various correctional programs. These inmates will therefore go out on statutory release and will occasionally turn to community organizations, for example, halfway houses, in the event of an emergency. They will be assured of having a shelter and the necessary time to look for accommodation and a job. Other individuals who represent a higher risk because of their offender profile will be released on statutory release with a residency order. Such inmates will also end up at a halfway house and they have to comply with a set of conditions. This second form of statutory release involves many more constraints for the offender.
Despite the differences between the two manners in which statutory release is used, both represent important challenges for the people in organizations that must not only supervise these offenders, but also help motivate them and help them take on their responsibilities. In a short length of time, from the two-thirds point of the sentence up to the end of the sentence, both Correctional Service staff and community workers have to adjust their intervention strategy to ensure an effective return to society.
As I said a few minutes ago, although statutory release is a pragmatic measure, it is a far from ideal framework for rehabilitation. We may therefore question the goal of social rehabilitation that is attached to this measure.
That is why we are reaffirming our position: parole should continue to be the release measure of choice for all of those involved. Parole is a serious measure bringing together assistance and supervision. It enables those working with an offender to make adjustments as the offender once again becomes part of society, assumes his responsibilities and reestablishes his social network. Finally, it allows for better case preparation, as well as for co- operation between the various people working in the penitentiary, in the community and with community organizations.
In our view, the current legal system greatly underestimates the stimulating effect of parole on individuals. Since the legislation took effect in 1992, the National Parole Board is no longer required to review cases systematically; it now reviews cases only on request. Furthermore, when a parole application is rejected, a two-year waiting period is imposed, generating a feeling of frustration and, above all, discouragement. Some inmates will decide to wait for statutory release before spending time in the community. For other inmates, the two-year waiting period will inevitably bring them to their statutory release date.
We think it is essential to bring back the conditions that will make it possible to encourage individuals to take charge of themselves in a responsible manner. That is why we put forward the following recommendations, which are in order of priority.
First, the Corrections and Conditional Release Act absolutely must affirm that social reintegration is the best means of protecting the public and, since the freedom of individuals is at stake, the correctional and conditional release system must use the least restrictive measures possible.
Second, the National Parole Board must systematically review all cases of inmates eligible for day parole.
Third, the NPB must then be required to review all cases eligible for parole every six months.
Fourth, statutory release must be continued.
Fifth, in order to ensure successful reintegration, rehabilitation programs must start inside the penitentiary and be continued in the community.
Our recommendations are similar to some of those made by the Auditor General of Canada who, on more than one occasion, has noted the importance of preparing inmate files quickly enough to meet the requirements of the process for release on parole.
By maintaining statutory release and putting greater emphasis on other forms of conditional release, society will be acting responsibly and the legislator will be ensuring the availability of the social rehabilitation mechanisms for inmates that are essential to protecting the public.
In conclusion, despite the challenges associated with this measure, we must proceed carefully in making our choices because we do not have a complete profile of the offenders who leave the penitentiary on statutory release and we do not have all the information on the factors behind the use of this measure.
We believe it would be wiser to maintain the Canadian tradition, that is, to keep the release mechanisms which are accompanied by supervisory measures, so that assistance will be available to offenders and the public's security will be assured.
The Chair: Thank you very much.
Our last intervention is on behalf of the St. Leonard's Society of Canada, Elizabeth White.
Ms. Elizabeth White (Executive Director, St. Leonard's Society of Canada): It's so tempting just to say I concur with so and so, etc. I'd like to express my appreciation to the chair and the members of the subcommittee for allowing me to speak briefly to the need for and appropriateness of statutory release. I'm not going to review the correspondence that I sent in a month or so ago. I simply want to emphasize a few of what I feel are key points on this issue.
The data presentations that have been received by the committee are very compelling. They may perhaps be confusing in some instances, but when analysed, they are compelling as to the general effectiveness of the mechanism.
The second point I'd like to make is that statutory release is a statutory right. Indeed, it is to present oneself for, as my colleague has now called it, a presumptive entitlement. It is not an absolute right to walk out the door without restrictions, nor should we ever allow it to be spoken of in that way, because we mislead people when we do.
The third fact I'd like to mention is that statutory release fits very logically into the management of sentences. The essence of our justice system is that those who determine the sentence are not those who administer it. So statutory release and other forms of conditional release are not about punishment. They are about returning people to the community the safest way possible. Now, the lack of adequate resourcing in the community is a separate issue that undoubtedly needs to be addressed, but it is not a reason to avoid statutory release.
A further point is that several speakers, both this afternoon and this evening, have said that they are uncomfortable with people returning to the community under supervision—that is, statutory release—who are not successful in obtaining parole. The fact is that, as we all know, these individuals with determinant sentences are coming out sooner or later. Don't we all really want these higher-need people to have as much intervention, supervision, and support as possible during those very crucial first weeks and months, as they adjust to living outside of an institution? We know community supervision is more effective. We know people are vulnerable when they leave institutions. We know the higher-risk profile of the individuals. We can't ignore those things.
There have also been comments today about the lack of understanding by the public about statutory release and, indeed, other forms of conditional release. The answer to that problem does not lie in trying to simplify what we know is a very complex and difficult system. It lies in providing better community information, better community education, and a transparency to our entire corrections and conditional release system, so that this system becomes comprehensible to those individuals who wish to inform themselves.
In essence, the statutory release system is not broken. We should not be trying to tinker with it, adjust it here and there. It is one part of what is essentially a fairly coherent scheme of corrections and conditional release. In our submission, we would hope that the subcommittee would determine to recommend its retention.
The Chair: Thank you very much, and I thank all the witnesses for their strict adherence to the time limits. That certainly makes it easy.
What we'll try to do is go through rounds of maybe ten minutes, because our format is going to be a little bit different. When one of the subcommittee members asks a question of a particular witness, if other witnesses want to add something to it, perhaps they could catch my attention and I will make a speakers list on that point. So timing-wise, maybe it's going to be a little out of control to a certain extent.
I also point out that I know Professor Doob has a 10 p.m. flight, so he needs to be out of here shortly after 9 o'clock. I don't know if others need to make arrangements, but we would understand it if you have to leave. If you have to leave, maybe you can indicate it now. The members will then know to ask their questions of a particular witness before asking someone else.
We'll start with Mr. Gouk, for a round of ten minutes.
Mr. Jim Gouk (Kootenay—Boundary—Okanagan, Ref.): Thank you, Mr. Chairman.
There are so many people and so little time. I don't have direct questions. I've made notes for the various people as they've spoken.
Being a lover of analogy, I have two that I think fit this. By and large, they reflect what I've heard from most people. I'm sure Ms. Pate will relate to one better than most of us at this time.
If you have a cold and you treat it, you can get rid of it in seven days, and if you leave it alone it takes a week. I hate to see people treat statutory release in this same manner, whereby they do nothing to rehabilitate themselves; they show nothing in terms of remorse, in terms of trying to improve themselves, cooperate or anything else. They say it's there, that a three-year sentence is a two-year sentence. With some exceptions, that's by and large the way it works, and that's why we're looking at it.
Certainly the majority of people around the table tonight are in favour of the retention of this, looking at it from what I gather is somewhat of a prisoner's humanitarian approach. But I ask why we are focusing on getting prisoners out at two-thirds. Why aren't we focusing on getting them out earlier than that? Why don't we focus on the kinds of things that are necessary to aid people, not just tell them there's a course they have to take or they won't get released? Rather, let's aid them in a variety of creative ways to get out earlier than that.
I'd love to see all non-violent first offenders out at that one-sixth point, provided that they have earned it. For those who are reoffending, there should still be serious consideration at the one-third point. I would like to see a majority of people getting out early, but not because we have a policy that says two-thirds, time's up, out they go, with maybe some conditions and a variety of other things. That policy is not tied to that person's effort to rejoin society as a productive person. We have a responsibility on our side to make those kinds of programs available to them and to encourage them to take them.
There's another analogy that I think is fitting on this. I'm sure you've heard people say many times that we have a serious problem with poverty, with so many people living below the poverty line, so you fix it by lowering the line. That's an absurdity, but it's the same thing as saying we have to have a kinder, gentler, non-penalizing system by simply letting people out of prison, that we have to solve the problem of overcrowding in prisons by letting people out of prison. To me, that relates to the same thing as that poverty analogy. I think we collectively have a responsibility—we as parliamentarians, and you as people who are very interested in and concerned about our prison system—to find a way to make the system work better.
When we don't focus on getting better behaviour out of prisoners, we impact on the rights of all the other prisoners who would behave, who would rehabilitate themselves, who would try to better themselves while they're in there, in order come out as a person who is going to rejoin a productive society. Say we turn our backs on that and we take someone who's done a series of B and Es—not a necessarily violent offence, but quite a serious crime—and put them in prison, and they get into fights. They fight with the guards. They mouth off to them and throw things at them—I think we have a pretty good idea of some of the things guards get thrown at them. Maybe they even tear up their cells because they're pissed off at something, or they throw food in the cafeteria. But at two-thirds, ding, they're out. That's inappropriate. I think you're turning out an antisocial person who is going to have trouble in society.
So I think it is appropriate to revoke automatic statutory release, but replace it first of all with a consideration that they automatically will be considered for release. Put a little faith in the parole board. If the parole board doesn't live up to that responsibility as we collectively see it, then we should deal with parole board. We shouldn't deal with it by just going around the board. At the same time, we should focus on better programs for prisoners so that we're not really even worrying about two-thirds because we're getting a lot of them out sooner, rehabilitated.
The Chair: For reaction, I have Professor Doob.
Dr. Anthony Doob: Thank you very much.
I think the difference between us is probably not that we don't all want the same thing. I'd actually argue that many of the arguments that were being made weren't either largely or even purely humanitarian. They were really public safety arguments. Graham Stewart summarized it quite well by saying that they need it and we need it.
When you have somebody who is admittedly a difficult prisoner, who may not be terribly cooperative, who may not have been successful in completing the kinds of programs we would want—and I think Steve Sullivan corrected me quite properly—the problem is that we're not talking about changing the length of the sentence. What we're talking about is how that sentence is served. The difficulty is that we're staring at warrant expiry. The question is, how do we maximize the likelihood that this person will be reintegrated into society in the long run—not just before warrant expiry, but also after that? I think the research and our intuitions on that are quite similar: letting somebody out cold at warranty expiry simply isn't the way to do it.
The difficulty for the parole board—and this is no disrespect to the parole board members—is that when you have somebody who is a risk, especially in the current situation, in which the parole board is perhaps seen as responsible for the short-term risk mainly, meaning before warrant expiry, what we're doing is minimizing that short-term risk. We're not looking at the long-term public safety.
What we need to do is say that we cannot simply let people out at warrant expiry. We know how difficult that is, and we know how counter-productive that is. What we need to do is encourage reintegration by getting rid of statutory release and by simply allowing that big bulge of people who are released on mandatory supervision to go further in their sentences. Aside from the costs, which I made estimates on and on which I'm sure you have other estimates, what we're really doing is jeopardizing public safety.
The Chair: Professor Jackson.
Dr. Michael Jackson: I have a comment in relation to Mr. Gouk's concern. I understand it to be that somehow prisoners are at liberty to make their time in prison as tempestuous as they can, flout all the rules, and still have some confidence that in the absence of a demonstration that they're detainable, they'll walk when two-thirds comes around, albeit perhaps subject to residency.
I think what that ignores is the fact that Correctional Service Canada is not a puny army when it comes to having an armament of incentives. If you are disruptive prisoner, you will be kept in a higher-security facility, with many fewer privileges. If you commit offences, you will be sentenced in accordance with the disciplinary code, and you can spend long periods of time in solitary confinement. If you're really disruptive, you'll end up in the special handling unit.
That scenario conjures up the paradox that Professor Doob has talked about. In some ways, if you have a system of merit—and it's intuitive to want people to deserve things—the paradox in public safety is that you can say to the prisoner who is very disruptive, who has been assaultive to the staff, who has been contemptuous of the rules of the institution, “You're not getting anything; in fact, we will make your life miserable, and we'll keep you to the very last day.”
I have interviewed men who are being released from a special handling unit to the street, or in solitary confinement in the special handling unit and going to the street. Everyone here should quake at the prospect of someone leaving the special handling unit. Albeit you can justify that he deserves to be there given what's he done, do we deserve to have someone back on the streets of Montreal who is so dangerous, has been made so dangerous either by his own behaviours or the treatment he has received, that he then walks amongst us literally waiting for a victim? That's the case that cries out for intervention that addresses rather than aggravates the risk.
Kim and I are both aware of a client of mine in Saskatchewan Penitentiary who you can justify maintaining at maximum. She has been detained, and she'll probably be in maximum until the day she's released. I fear for her life in prison, and certainly there's reason to fear for other people's lives when she is released.
Merit and what we deserve have to be addressed and balanced.
The Chair: Have you a short follow-up question, Mr. Gouk?
Mr. Jim Gouk: If there's someone who is so dangerous you can't reach them, it was suggested tonight that there be six months more in there, or six months of protection for society. But on the flip side of that, we saw a young woman in the special handling unit in Quebec who has slowly worked her way down the system—or up, depending on how you want to look at it—with breakouts and terrible behaviour, and ended up in the SHU. Someone there reached her and helped her, and she's now way on her way to rehabilitation.
I think that's what we have to concentrate on, not saying, gee whiz, no matter how horrific their crime and how unrepentant they are, we have to get them back earlier so that we have some controls on them. In every case possible, we have to find a way to reach them so that they are in fact earning—not so that we can say they've earned it, but so we have actually caused some rehabilitation. If we don't focus only on this, we're not doing any good.
The Chair: Thank you.
Mrs. Venne, you have the floor for 10 minutes.
Mrs. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): I have a question for Mr. Normandeau.
The whole appointment process and the internal operation of the National Parole Board are being called into question these days. If our subcommittee were to recommend that statutory release be abolished, in your opinion, what would be the possible impact on the NPB in light of the allegations made by Mr. Vastel in the daily newspaper Le Soleil?
I'd also like to hear your suggestions for improvements. As you can see, Mr. Chairman, my question is directly related to the subject. Thank you.
Mr. Jacques Normandeau: The abolition of statutory release would obviously not improve the current situation. It would only aggravate it.
I fully agree with those who say that the problem lies with the independence of Board members and their status. That is one of our main concerns. We raised the issue of the quality of the Board members, the appointment system and the follow-up that takes place during their mandate. The Board members should receive the best training possible and enjoy the independence necessary to carry out their duties properly. These points were raised by many people. I also heard the news this morning.
What is obvious, at least in Quebec, is that there's a pressing problem with regard to the interference that occurs at many levels in the parole Board members' decision-making. I'm not inventing these things. Even the board members themselves regularly allude to this. Of course, that presents a serious problem with regard to the Board and affects the credibility of the system which is sullied when such things are allowed to fester. We need to get answers about this. Before we even think about abolishing statutory release, we should first ensure that the Board members can have true independence and be in a position to exercise their powers without fear of administrative pressure from their superiors. That's quite an obvious situation, in Quebec among other places.
The Chair: Ms. Ferland.
Ms. Madeleine Ferland (Member, Quebec Association of Social Rehabilitation Agencies): I think that if statutory release were abolished, the problem would not be with the Parole Board.
Our report indicates to what extent we believe that parole is a good measure to help an individual return to society and how it helps protect citizens.
However, there are limits to the extent that recidivism can be predicted. Meteorologists will tell you they'd love to be able to tell you whether there will be a storm or not in five days. Your doctor would love to be able to tell you whether you're going to die of a heart attack or not in five years. Predictions of this kind are not being made in sciences that are much more advanced than criminology or the social sciences. The social sciences have made a great step forward in the past few years, but our forecasting tools still have their limits. We use these as the basis to formulate our recommendations, just as the Parole Board members do before they make decisions.
Statistics indicate that 20% of those who reach their statutory release date will offend again. We must not forget, however, that 60% of those considered unreleasable will not offend again. Here again, we're not taking into consideration the 26% who are reincarcerated after breaking parole. Therefore, that's the limit of our forecasting tools, which means that we absolutely must maintain the mechanism of statutory release after two thirds of the sentence is served.
Mrs. Pierrette Venne: I fully understand your argument. Incidentally, I was going to ask Ms. Vallée to clarify a statement she made during her presentation. She said: “We believe that the most effective measures are those aimed at increasing the sense of responsibility among offenders.”
I recently watched the television program "Zone libre", which showed the inmates of Donnacona. I imagine you also saw this program, which was quite edifying for everyone. I must admit that, quite honestly, I was very surprised to note during this program that the guards were very careful to make sure that the Hell's Angels did not meet the Rock Machines when moving from one room to another. It's really fantastic to see to what extent they take care of these people. When you looked carefully, you could see that there were hard-core cases in there, people who had no intention of becoming more responsible. What do you think you can do and what is your attitude vis-à-vis these people who couldn't care less about becoming responsible citizens?
Ms. Johanne Vallée: Ms. Venne, I will tell you that I am very cautious about reports in some media and about certain allegations. When you have experience in this field and take the time to look at it in greater depth, you realize that reality is far more complex. Unfortunately, a program like Zone libre enables certain tough guys to reinforce their image.
When you take people individually, separately, you see that they are experiencing a completely different reality. In our fields, we are well aware that they don't enjoy very good longevity, they don't reach very old age. There is a way to help them become responsible and work with them.
Needless to say, those who are part of organized crime face major challenges: the weight of the gang, the cultural values and the possibility of ever getting out. There are things that are done that are unfortunately not well known. Some very specific things are done in the community and in community networks and in the medium term, we do manage to get people out of organized crime.
Their case is somewhat similar to that of an individual who has problems with alcoholism. If that person knows that the people around him have abandoned him, it won't help him to get rid of the problem. On the other hand, if he knows that someday when he's ready, people will be there to give him a helping hand, to supervise and control him but also to support him, he will have a much better chance to succeed.
We must never abdicate.
Mrs. Pierrette Venne: I admire your optimism, but it does happen that someone says that they have no intention of doing anything whatsoever to be readmitted into society. In fact, you yourself heard such statements from these tough cases that you referred to. You remember this convict who said quite clearly on television that he had no intention of going back into society. He'd committed a crime in order to stay inside. I do want to be optimistic, but in that case, I would tend to...
Ms. Johanne Vallée: I will repeat, Ms. Venne, that many alcoholics never wanted to help themselves, always denied they had a problem and said they didn't need help. On the other hand, look at all those who did escape that cycle thanks to movements such as AA.
The most dangerous offenders are serving life sentences, but there are always other ways of supervising other inmates. I would invite you to come to our community organizations and spend some time in a halfway house. It's no bed of roses. There are measures to help and measures to control. You only have to look at what's done at Correctional Services and the intensive supervision that occurs there. Offenders have to answer for their actions at any time of day and never know at what time a Correctional Services officer will ring their door bell. Random urine tests are conducted. It's no bed of roses. I'm aware that they represent some risk, but there are certain tools that help us. There's no denying that we could improve the co-operation between Correctional Services and the police, and even the community network. There are methods of intervention that enable us to ensure public safety and close supervision of high-risk individuals.
The Chair: Thank you, Ms. Venne.
Mr. MacKay, you have 10 minutes.
Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair.
I want to thank all the participants. We're getting a very broad view on the spectrum and a very insightful view from a lot of different areas.
The danger we face at this committee on this specific question is that we might tend to oversimplify things. I think that's a fear that all of us have. However, as a general comment, I think parliamentarians and legislators and executives sometimes tend to forget that this is what the public expects from them to a degree. I say that in a general way, that oftentimes rather than strip away some of what has been put in place, we tend to put more bureaucracy and more legislation on top of what already exists. So I think we sometimes have to step back from it a little bit. I agree that there's always a danger in trying to oversimplify, but sometimes the public have a little bit more insight and understanding than we might give them credit for.
With that said, I agree with the comment that Professor Doob picked up on. I have a great deal of respect for what Graham Stewart has said about gradual release. They need it and we need it. I think everybody around this table, everybody on the committee, agrees that releasing somebody cold is the biggest danger there is. Releasing somebody out of the hole, out of solitary confinement, and putting them right on the street is the worst of all possible scenarios.
However, there are a couple of other things we have to keep in mind. Sadly, I think there are some people who, as long as they're breathing, are going to be a danger to society, and whether the system throws all the resources it has at that person, they're not going to be rehabilitated.
That's not to say we start writing off large numbers of prisoners. However, I think we have to put greater emphasis on trying to identify those we can rehabilitate. We just can't fix everybody.
The public confidence in the system is something we have to deal with politically, something we have to keep in mind. So when I hear someone like Steve Sullivan say the public are losing confidence.... Peter Cuthbert articulated the same thing, that 12 years doesn't mean 12 years, so why are we playing this game of saying 12 years means 12 years when that's just not the case? That's simply not what's going to happen.
There's an overused catchphrase now in our justice system: let's have truth in sentencing. But to some degree I think we're obliged to do so if we're going to get some of that public confidence back in the system. A lot of good people are working towards that, but why do we go through this game of saying that 12 years is 12 years, or whatever the sentence actually is?
There's a mandatory consideration here about the fact that statutory release currently allows a person to go out the door without that final filter. It has been said before, but what is wrong with having the National Parole Board, who are put there for that specific purpose, make that final judgment call, review every case? That is, why not have some discretion exercised at that final day rather than no discretion whatsoever? That's what the parole board would provide.
Just so we're all clear on this, nobody is suggesting that we take the sections of statutory review completely out of this act and replace them with nothing. That's not the suggestion by anyone on the committee or, from what I've heard, anybody who has appeared as a witness. That's not an option. We're looking at putting something more effective in place.
The Chair: Mr. MacKay, could you let Professor Doob respond? He has to leave to catch his plane at this point.
Mr. Peter MacKay: Sure.
Dr. Anthony Doob: I have a very quick response to it. I would like to repeat, on the whole issue of what a sentence of imprisonment is and should be and the complexities of it, I would agree and have no difficulty with the argument that these should be reviewed. I just don't think this is the time to review it or that we should do this quickly. It's a very complex issue. It has to do with the whole structure. So I would really just repeat the things I've said.
But on the second thing, about the issue of truth in sentencing, going back to something that I believe Kim Pate said earlier, I think it's important to remember that in the youth criminal justice bill, which I assume will be before the full committee very soon, there is a thing that the order shall be a combination of custody plus reintegration leave, in effect, for exactly this kind of purpose that all of us have been advocating, so that you don't have the situation of kids being released cold at the end of a period.
I want to go back to the issue that Peter Cuthbert raised, and that you, Mr. MacKay, have just raised again. I'd like to remind you that in the youth criminal justice bill there is something quite similar. It says and the judge “shall” state the following in a custody and supervision order. You are to serve a certain number of months in custody, to be followed by a certain number of months to be served under supervision in the community under certain conditions.
So I think the government has moved in that direction in the new piece of legislation. I actually think that's very good, but what's interesting about it is, of course, it's not automatic. It's essentially a fixed period of time that the person shall be serving in the community, because kids, like adults, will be getting out. What I'd urge the committee to remember is that we're talking about people who are going to be on the street. So the question isn't whether, it's how.
Thank you very much.
The Chair: Thank you, Dr. Doob.
Dr. Anthony Doob: I'm sorry, I have to leave early. I thought the committee was meeting a bit earlier tonight.
The Chair: Mr. MacKay, you have three and a half minutes left.
Mr. Peter MacKay: The trouble is that not everybody should be back on the street. I guess that's one response to that. And there is also the need for certainty on the part of prisoners, too, as to when they can expect to actually be released. They are always going to want to be released sooner. That goes without saying. Under the old Young Offenders Act, as vilified as it was in many ways, young offenders knew—and the public had confidence—that if that young person was given a two-year sentence of incarceration, they were actually going to do the two years. They could set up a program that was tailored to fit that actual sentence.
This is what it's really all about. There's no magic in crafting an appropriate sentence. It's individualized for every single offender. That's what judges do. After the fact, that's what prison officials have to cope with and what the National Parole Board and the Correctional Service have to deal with.
It's unfortunate that one of the missing elements here, one of the testimonials that we haven't heard—although we heard it as part of the travelling committee—is from guards. I don't know how much this happens, but it occurs to me that the National Parole Board, and sometimes Correctional Service Canada officials, could probably learn more from the guards who are actually living in the same place as the prisoners. I think that is perhaps sometimes overlooked. I just say that as an add-on.
I again hearken back to this concept that some discretion be exercised at the very end of the day, just before the door swings open. As part of its mandate, the parole board should have to make that judgment call in every case, rather than simply saying this person is going out at a statutory release date, regardless of their participation, regardless of their efforts to rehabilitate themselves and regardless of their behaviour. I think that's what observers and a lot of people in the system find offensive about statutory release.
The Chair: Ms. Ferland and Ms. Brosseau would like to comment.
Ms. Madeleine Ferland: First of all, I do agree that a 12-year sentence means 12 years, because after his release, an individual continues to serve his sentence in the community. Restrictions are imposed on him and there are programs he must follow. It is certainly no joke, but one can only learn to swim in water. Therefore, it's in the community that one learns how to be an honest citizen. Many studies have been conducted about these programs and demonstrate that they are effective when they are applied in the community. However, if an individual truly cannot be released, it is still possible to keep him incarcerated.
Another aspect is the probation period once the sentence has been served. We discussed it earlier. Having observed this process on the provincial level—at the centre where I work, we also have provincial cases—I know that the results are not the same. During the probation period that follows the sentence, we don't have the same control over the individual. We cannot incarcerate him as easily as when he is on parole if he does not respect the conditions or if there is disorganization. He's on probation; you need a lot more to reincarcerate him. At that point, society is less well protected.
The Chair: Thank you.
Mr. Peter MacKay: Could I just respond to that quickly?
I've been using this 12-year mark. If a person is out in 8 years on a 12-year sentence, he doesn't stay on parole for the remainder of those 12 years.
Ms. Madeleine Ferland: Obviously.
Mr. Peter MacKay: The period of time remaining when he is released is not going to be tacked on. He's not going to continue under the same conditions that he was put in prison under. Other than the conditions that he's released on, he's not going to be brought back. He's not going to be forced to keep account until the warrant expires.
Ms. Madeleine Ferland: The conditions can be changed, but they can indeed apply until the expiry of the warrant. He can also be reincarcerated after eight years, nine years, ten years or eleven years. There's nothing to prevent reincarceration if at some point there is disorganization or if society is in danger.
The Chair: All right.
Ms. Brosseau, please.
Ms. Carole Brosseau: Thank you. Ms. Ferland already covered part of my answer.
Moreover, the example of young offenders was cited. I can tell you that we discussed this at length and that this law will be reformed. In fact, we will express our views when the time comes to examine that bill.
I can tell you that right now, in Quebec, the Young Offenders Act includes a program of alternative measures. These measures are widely used and in Quebec we have the lowest rate of recidivism and of close supervision of young offenders. If reintegration mechanisms failed, I can't see why... Quebec is not very punitive toward its young offender. This principle could also be applied to adult offenders.
I also agree with another point regarding the actual sentence. The sentence is a punishment in and of itself. It is accompanied by conditions. Parole is a mechanism for social reintegration through which we ensure that the public and society are safe. The objective is to ensure that the individual who has a delinquent attitude or shows delinquent behaviour no longer displays this behaviour at the end of his sentence.
We referred to programs. Are the programs that were applied in 1992 still suitable to the reality of 1999? Shouldn't the overall situation be reexamined? Mr. Jackson referred to this earlier. Canada has one of the highest incarceration rates in the world. Wouldn't it be appropriate to fully reassess the situation without calling into question the entire parole system?
It's the issue of accountability, that is the responsibility and role of correctional services and of the Parole Board that must particularly be—
The Chair: I must stop you there. Thank you.
Ms. Carole Brosseau: All right, I will stop here.
The Chair: Mr. Wappel.
Mr. Tom Wappel (Scarborough Southwest, Lib.): Thank you.
I'd like to ask a few questions, but I'd like to first of all congratulate Kim Pate. We've been talking about truth in sentencing, but it's about time we had truth in definitions. I think SR, being a revocable right that is not automatic, is truth in definition.
I want to ask the Canadian Criminal Justice Association a question. When you came to see us the first time, you said “No form of release should be automatic.” Further to that, you said “In all cases, release would be based on merit and on a decision by a body responsible for assessing that merit.” Is that still your position, or have you changed your position? If it is still your position, do you view SR under the category of automatic? I'll start with that.
Mr. Gaston St-Jean (Executive Director, Canadian Criminal Justice Association): If it were to come down to our saying yes or no, at this point we would say we still believe that automatic forms of release are not the best possible solution. However, we did qualify, both in today's brief and in previous briefs, that unless something better can be devised—and we can't devise it, because we don't have the solution—this is probably the best we can do at this point.
Mr. Tom Wappel: Okay, thank you for that clarification.
I'm sorry that the two professors left, but I want to pick up on something Mr. MacKay said. I'd like to know why people are under the impression that if we were to suggest something other than the current system of statutory release, it would automatically mean that people would be incarcerated until warrant expiry. Why is everybody under that impression?
The Chair: Anyone? Mr. Stewart.
Mr. Graham Stewart: That question has been asked a couple of times, and I think it does deserve an answer. I'll try, and maybe others can add to that.
The question was put earlier as to why there is this reluctance to see the parole board review all cases.
Mr. Tom Wappel: No, I'm asking specifically what the professor said, because he said we “can't let people out at warrant expiry”. That's his direct quote. I want to know why people think that. Somehow, an impression is out there that this subcommittee wants to see people locked up until every last second of their time has been served. Why is that there? Where did you get this from?
Mr. Graham Stewart: Well, I'm not sure where everybody else got it from, but we think the notion that we would in effect make statutory release subject to a parole decision would have that effect for the majority. It would be substantial; a large number of people would in fact be released only on expiry of sentence.
Mr. Tom Wappel: So you don't have faith in the parole board to exercise its statutory responsibility. Is that what you're saying on the record?
Mr. Graham Stewart: Yes. That's right.
Mr. Tom Wappel: Thank you.
Mr. Graham Stewart: And this is the reason, if I can give the reason.
The Chair: Certainly.
Mr. Graham Stewart: I think it's important that if the world were as simple as we would like it to be and the parole board were perfect, then everyone on parole would be successful and everyone on statutory release would commit crimes, and that's not the case. If it were so simple as to be predicted in that way, we wouldn't need supervision for parole, we could just release people and we would have a compelling reason to abolish statutory release altogether.
The fact of the matter is that there's very little difference in the success rate between these two groups, and what that also tells us is that the parole board grossly underestimates success. So if we turn the whole conditional release system over to a board that has demonstrated so consistently over decades that they substantially and consistently underestimate success, then we really run the risk of undermining the whole gradual release process.
The point is that this is not based simply on prediction. It's not just a question of whether a parole board or any other board can read the future. It's a correctional process that is based on the notion that we can shape behaviour, and the whole process of gradual release is in fact intended to shape that behaviour, not simply to predict its outcome.
The Chair: I have Professor Jackson and Madame Vallée who wanted to also answer that specific question.
Dr. Michael Jackson: I also think that's the question, and I don't think we should be pussyfooting around the answer.
When you look at the parole board's expertise and their experience under the case study in which they are most focused and where they rightfully are most concerned about public protection, it's looking at the detention legislation. We're dealing with a category of individuals everyone is concerned about—those people who it is believed, if released at two-thirds, will commit another offence involving death or serious harm between the period of their two-thirds and warrant expiry. It's a finite judgment, and enormous resources are devoted to that by the Correctional Service Canada in terms of their workup, in terms of their detention referrals, and the board spends a lot of its time worrying about those decisions.
CSC's own research on the results of detention show that there is almost no difference between the people who are detained in terms of their reoffence rate in the next two years and those people who are released at statutory release. So in terms of when the parole board looks at the cases it is most concerned about, where it spends most of its resources, its predictive ability is not demonstrated.
What the abolition of statutory release would do is in fact turn many more cases into detention cases. When you look at the other end, at full parole, which is a determination by the parole board that these are the best cases, you find that—and I'm looking at CSC's very latest statistics, for November 1999, which I think you've been given—it shows that in terms of the recidivism rate for those released on full parole, 12% of those ended with a non-violent offence and another 2% with a violent offence.
They're the best cases. This is the parole board saying these are cases that CSC has referred to us often with a recommendation for parole. We agree, these are the lowest chances for reoffence, the best potential in the current coinage. They have the best reintegration potential. There were 12% cent with a non-violent offence, 2% with a violent offence. Most of them are successful.
Look at the statutory release cases. These are the cases where Parliament, under the current regime, has said these people can be released at two-thirds and they can be managed in the community under the supervision of the CSC. The latest figures show that 11% of statutory releases ended with a non-violent offence and another 3% with a violent offence. That's almost identical.
Given the fact that the people on full parole are on parole longer, it is a demonstration that these people are marginally better. But you'd have thought there would be much larger differences.
Mr. Tom Wappel: But there are much larger differences post-sentence, post-completion. It's 4% as against 20%.
Dr. Michael Jackson: But that's not the period we're talking about.
Mr. Tom Wappel: I'm talking about that now, and there's no reason to restrict it to the period of time they're on statutory release. We have to look at the whole system. We have to look at the protection of society, as you keep telling us.
Dr. Michael Jackson: If you do that and you go further down the road, I would suggest that if you release people later in their sentence, without any of the benefits of statutory release, that figure and that discrepancy, in the long term—this is Professor Doob's point—between the likelihood of reoffending will escalate rather than in fact be minimized. There's a question of the confidence in the parole board's ability to make judgments about reoffence, and their conservatism.
The other point I'd suggest is that at the moment—and as someone who appears before the parole board on a regular basis, both in terms of applications for parole and also resisting detention or arguing against residency—there is a world of difference. When you go to a full parole board hearing, it is in fact about merit. The parole board looks for signs: Have you in fact improved your life? Have you in fact done something for yourself? That's the whole approach to granting release. To suggest that the parole board, overnight, if now given the decision of whether or not to release someone at two-thirds, will say, okay, we'll come up with a whole different set of criteria.... It will apply the same kinds of judgments. It will in fact not release a significant number of those individuals whom the evidence suggests can be released, with the great majority of them successfully completing statutory release without committing any new offences.
The Chair: Ms. Vallée, you wanted to answer Mr. Wappel's question.
Ms. Johanne Valée: If statutory release is abolished, as long as the legislation does not force the Parole Board to systematically examine each case, we run the risk of having exactly the same situation that we have now. If files are not well documented within correctional services, it will not be possible to present them to the Parole Board.
There's another thing. We note that for different reasons, certain inmates do not apply for parole because they don't understand the procedure, they don't know what their file must contain to obtain a parole hearing.
Therefore, the legislation must reintroduce the obligation, as was the case in the past, to systematically examine all cases and, when the Board decides not to grant parole, a further assessment must take place six months later.
Mr. Tom Wappel: But, madam, that's exactly what I wrote down, because that's what I understood you to give in your evidence. You wanted the National Parole Board to study all files as to whether or not they would be eligible for parole. I have no problem with that. Where I have a little bit of a problem is, if statutory release is to be maintained, then what's the point of the National Parole Board reviewing all files when they're going to be let out no matter what the National Parole Board says? I can understand your recommendation for the National Parole Board to review all files if we don't have statutory release, because then somebody has to look, because we don't want these people in until warrant expiry. But I can't understand your recommendation, if I understood it correctly, that the NPB should review all files but that we should still have statutory release. To me, it would seem therefore irrelevant for the National Parole Board to do that in the cases where there's going to be statutory release no matter what the NPB says based on its review.
The Chair: After your answer, we'll give the floor to someone else.
Ms. Madeleine Ferland: I can only repeat what I already said. At the present time, the decision-making process is taken into account. We want the Board to review all cases because the individual will be more motivated and more accountable if his release is conditional rather than statutory.
All our systems are based, to some extent or another, on a cognitive approach, on some type of learning; people learn when it is in their interest to do so. That is why there are better results if the individual is granted parole rather than statutory release. In the latter case, the individual takes it as his due, which it is, to some extent.
The decision process is such, however, that it is impossible to predict exactly who will commit a repeat offence and who will not. This entire process, which is based on experience, is something that is not totally reliable. We have statistics that enable us to say, for example, that three individuals out of five will not commit a repeat offence. How do you know that you are not dealing with the two who will?
Then there are all the factors that are related to the offence. Schedule I refers to offences involving violence. In such cases, there is a need to be more careful because the risk of recidivism is greater for serious offences.
We also know that certain individuals who have never committed violent crimes will be repeat offenders. As a matter of fact, the recidivism rate for certain offences not set out in Schedule I or Schedule II is as high as 18.5%, namely for fraud.
The decision-making process also takes into account individual needs. Resources will be made available to the individual on the basis of his needs. Once again, they may vary a great deal and range from “high”, “medium” or “weak”.
Another criterion is the behaviour of the inmate in the institution. Those who are pig headed in prison will not necessarily be stubborn enough to avoid repeat offences.
There is also the fact that whenever a mistake occurs, a great deal of the responsibility is placed on the Board.
The Chair: I'll have to stop you there, madam.
Ms. Madeleine Ferland: I see.
The Chair: Mr. Gouk, one short—
A brief comment, please.
Mr. Jacques Normandeau: I simply wanted to point out that in our daily practice, we have what are considered to be grey areas, that is difficult cases of persons who are thought to be ready to return to the straight and narrow path but who fail to do so. Of course, it's not a switch that you can turn on and off but is something that occurs gradually.
When the Board refuses to grant parole to someone who still has two years to serve on the basis of a very close call, when the Board is very hesitant, it in fact sends a message to the inmate who is taking concrete steps to change his general attitude that he will have to wait until his statutory release. The effects of this decision are observed in the service by the officers working with this person. He stops making efforts and just coasts along because of the Board's unwillingness to trust him.
If I've understood what was asked, it should be possible for such a case to be reviewed by the Board before the statutory release date in view of its imminence. The individual will then have a greater chance of success. If you simply postpone his release by two years, he will feel that his efforts have been useless and that people have given up on him.
Under the old system, there were regular sentence reduction reviews every six months and the Board was in a position to observe the person's evolution at the time of the meeting. One was able to see how the process of social rehabilitation was taking place on the basis of reports done by the service. This is something that has been completely lost in the present system and its lack is felt every day.
The Chair: Thank you, Mr. Normandeau.
Mr. Jacques Normandeau: I'd like to conclude with an important point. It was asked whether it would not be better if the Board itself did an assessment of the statutory release. I share Mr. Jackson's view on that point. Obviously the Board is favourable to the most compelling cases, those with the best statistics. These people are released and the perception of the Board when it grants parole is not at all the same as it would be if it had to make a decision on statutory release. The danger is that people will not be willing to take responsibility for this risk and I'm convinced that that is what will happen.
If a Board member releases someone belonging to a higher risk category than average, he will think that if the person goes back to crime, he will be considered responsible and so will be more inclined to let the service deal with the problem.
The Chair: I'm sorry, I must stop you now.
Mr. Gouk, one brief comment and then I want to go to Mr. Saada and Mr. Grose.
Mr. Jim Gouk: I will keep it very brief, and I will apologize in advance that after I get an answer or response I am going to leave. What we're doing is very interesting, but I'm way behind on my sleep curve and have a little drive. I'm afraid I'll be snoozing instead of cruising.
The thing about early release, the whole concept, is that people have to have a chance to get back into society, because they need to shop and interact socially, keep a house, and keep a budget. There are consequence of not doing any of those well, but the real thing that I think is important is the consequence of action. And that's where merit comes in inside a prison. If you don't have consequence of action inside a prison, how are you going to deal with it on the outside?
Mr. Jackson, you actually surprised me with your last response where you said parole boards deal primarily on the basis of merit and you're concerned that, if statutory release is removed and these people come for consideration at two-thirds, they're going to look at them on merit. Frankly, I would be distressed if they didn't. Yet it seems to be a bone of contention with you that they will. Could you maybe expand on this.
Dr. Michael Jackson: There is a contradiction there. I think it's resolved.... I'm not a big fan of statistics; they've been thrown around this afternoon with some abandon. But the figures I find compelling are in relation to those released on statutory release whom the board would not find meritorious. They would not find an individual who has participated in all the programs, who has good scores on the risk assessment profiles, who has formed a good relationship with their case management officer.... All of those kinds of things would not be there. Therefore if the board uses its approach based upon merit, asking whether this is a good candidate for parole or if this is a person who's likely to abide by supervision, all of those things will absent.
But the figures that don't seem to be gainsaid say that the overwhelming majority of those individuals successfully complete their statutory release without committing a new offence. I think that is what should drive the question: Do we need to transfer a figure that is overwhelmingly successful into a discretionary release in which we know the board, applying its usual decision-making criteria, will say this person is not a meritorious case for release and be wrong? That's the lesson from detention.
I have the figures right here. These are CSC's own figures. They make the referral. The parole board agrees with them on 90% of the cases. CSC have every reason to fudge the figures in favour of predictive ability.
Their own researchers show that of 235 individuals they believed would commit an offence before sentence expiry, which the board also believed, only 26 did. Now, for the victims, 26 is a big deal. I don't deny that. But the fact is 209 prisoners served collectively hundreds of years in prison based upon a judgment of the parole board that they were the very highest risk, and they were wrong.
What I'm suggesting is that granting more discretionary decisions to the parole board will result in many more decisions in which they're wrong, where the evidence points to the fact that the public can be protected by supervision rather than simply allowing those people to serve out their time and then be released.
The Chair: Thank you, Mr. Jackson.
Mr. Jacques Saada (Brossard—La Prairie, Lib.): There are three points I would like to raise.
First of all, it seems to me that the debate we are having relates to increased public pressure because people feel that they are less well protected. Instead of saying that perhaps we should do something to correct the public perception, our first reflex is to say that we're going to have to lower the bar. Mr. Gouk used this image a while ago, but not in the same meaning.
As legislators with a long-term view, we cannot lower the bar every time there is a difficulty relating to public perception. If something isn't working properly in the system, I can understand. But if the system is working well but there is a perception that it isn't, instead of changing the system, we must explain how the system works.
I'm sincerely open to possible alternatives but I listened very attentively this afternoon and I haven't been convinced that the performance of the proposed system would be better than that of the one we have.
However, several references have been made, and I would like us to keep note of this for later on when we make our report, to the limits of our ability to predict behaviour. It was noted on several occasions that in the present state of scientific knowledge, we were able to make predictions to a certain extent but no farther.
It might be a good idea for this committee or a subcommittee to make recommendations for greater research on this subject. I can't remember that a specific recommendation was made to this effect and I think it would be worth our trouble.
There's one thing that fascinates me. By definition, when we are dealing with inmates, we are dealing with individuals who have their own specific problems, their own specific experience of life and who have each committed a specific crime. Yet we want to come up with a general solution for all these specific problems. I'm rather afraid of this approach. I'm afraid that because of this generalization, we may end up requiring an inmate to stay incarcerated for longer periods because he has not followed the programs imposed while he was in prison. In fact, there is no certainty that the public will be safer if he is kept in prison.
It seems to me we are approaching the problem from the wrong end. What concerns me is that instead of treating the real problem, we are dealing with a whole series of perceptions of the problem. That is what I find bothersome. Of course, a recidivism rate of 2.9%, 3% or 5% is too high. But the actual figures do not really matter. A rate of 0.5% is already too high and I'd like to be able to do something to bring it down but I am not willing to sacrifice what strikes me as logical and convincing in order to do so. I have not yet been convinced that a change to the system would enable us to reduce this rate.
The Chair: Are there any comments?
Mr. Gaston St-Jean: I'm glad that you've raised this matter of public perception. I think that too often legislation is enacted in order to calm public perceptions, even though they are often unfounded. In this way, very specialized measures are adopted to deal with a problem without taking into account all the facets of the problem that require attention.
As far as public perception is concerned, I think that a good deal of education of members of Parliament must take place. In certain circumstances, it may be profitable to foster the impression that if part of a sentence is served in the community, this means that the sentence has been shortened. But as has been often repeated this evening, the sentence remains the same. It is still the same sentence that was set by the court. The place where the sentence is served is only a condition. Whenever a community organization or a member of Parliament states that this amounts to a reduction of the sentence, they are doing a disservice to the public. It is an important problem and I am glad that it was raised. I hope that the committee...
The Chair: Thank you.
Yes, Mr. Grose.
Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chairman.
It's too bad my friend from the Canadian Association of Chiefs of Police isn't still here. I would like to have talked to him, of course.
I'm obviously missing the point, as usual. It seems to me that what I've listened to here today and tonight is that if we change statutory release and have people reviewed by the parole board at that point, a lot of them wouldn't be released and then we'd get a jam-up and on and on, so what we'll do is keep on doing an end-run around the parole board. Why in hell don't we fix the parole board? Is that too simple?
The Chair: Any reaction?
Mr. Tom Wappel: We can't be simple, we have to be complex.
Dr. Michael Jackson: I think there's a lot of merit to reviewing the operation of the National Parole Board. I'm not the first person, and the bar hasn't been the first organization, to raise questions about the way in which parole board members are appointed. They make momentous decisions. In most cases, they're decisions as important as the decision of the sentencing judge, yet the process for appointing members to the parole board—and it's certainly better than it was a number of years ago, when the political patronage was in fact the only link for an appointment. I think there's now a much better vetting process, but there's still nothing like the rigour that accompanies the appointment of judges. I think public confidence would be enhanced immeasurably if there was in fact a more rigorous procedure for the appointment of the National Parole Board.
The other problem is that when you're talking about transparency and fairness, the parole board decision-making leaves a lot to be desired. All of those things are probably issues that are larger than the CCRA review, but I think they're important.
On the whole question of truth in sentencing, the irony is that until 1970, 12 years did mean 8 years, and your sentence expired at 8 years. It's been since 1970 that you have truth in sentencing, that 12 years has meant 12 years.
Mr. MacKay, if you were a prisoner and were paroled at 8 years, and if you knew that, for the next 4 years, who you associated with, whether you left the country on a holiday, whether you could move to another community, whether you could take a particular job...if all of those decisions were made by a parole officer, I think you would have a sense of just how conditional that freedom is. In a very real sense, it is a continuation of serving and paying a debt to society.
But I think the whole issue of a review of the parole board is a larger issue. The CCRA review may well want to recommend on that, but to try to come to terms with it requires a lot more study, as does trying to reorganize what truth in sentencing should look like.
The other thing I wanted to say comes in terms of a point that Mr. MacKay raised about the need for certainty—which is part of truth in sentencing of course—but also the missing presence of correctional staff. I would suggest that correctional staff would have a lot of concern about a scheme that abolished statutory release and came up with a different regime. Consistent with the charter, I don't think you could make such a change retroactive, so everybody currently serving a sentence would serve the sentence subject to statutory remission. Everyone's sentence as of the day of the new legislation would be under the new regime. From the point of view of correctional staff, just imagine having those who live side by side having the daily resentment that henceforth they would have to serve their sentence under different conditions than their brothers and sisters in the cells next to them. I think the potential for unrest in the prisons, the potential for in fact aggravating uncertainty amongst prisoners, would be a cause of great concern.
The Chair: Kim Pate, you had a comment on that issue.
Mr. Kim Pate: In addition to what Michael has said, being someone who has had discussions and debates with members of the Correctional Service Canada, as well as having appeared before the parole board on some of these issues, I think it's important to remember that the same public pressure as the committee is feeling also applies to those who are working within the system in terms of the conservatism with which we see referrals for detention. It's pretty clear that we see many cases that don't need detention, hence I think some of the results of the research on being referred for detention. We already see an abundance of caution in terms of how that discretion is exercised, both within the Correctional Service Canada and by the National Parole Board.
It strikes me that, particularly when we talk about women, we're also increasingly seeing issues that have traditionally been seen as risks more for the women—risks in their own ability to survive and live outside, or in their needs—being translated into risk factors. These are issues that we have spoken about at other times in terms of classification and those sorts of areas, and those impacts as well.
So when you ask the question, it's not just about reviewing what the parole board does, but the overall types of resources that are available and the types of pressures that are being brought to bear. That's why I think many of us see this as complex in terms of looking at the variables that impact on this very issue, and why having statutory release provides a safety valve. In fact, those who are going forth and are being released on statutory release tend to be seen as higher-risk than those going out on full parole and day parole. In fact, the statistics in terms of detention show they're not. If there was a way to refer them for detention, they likely would have been referred for detention already, and maybe already were detained.
Mr. Ivan Grose: That's my problem. Why are we doing this end-run around the parole board? I believe in sentences served on the street wherever possible; we have no choice. But I also believe we're putting a band-aid on something with this statutory release, which is something new to me. I was very familiar with the old system.
I've heard witness after witness say that if we let the parole board do it, they'll stay in prison longer. Then we'll be doing an end-run around the parole board. Why not abolish the parole board altogether? Have them deal with people only up to two-thirds of their sentences, and that's it.
The Chair: We'll hear from Mr. Stewart on that question and then Mr. Wappel.
Mr. Graham Stewart: I think it's really important here to distinguish between the prediction of success and the process of trying to change that. When we go to a hospital, a doctor who only predicts we're going to live and die is of very little use. We expect the doctor to do something. That's the problem: the parole board can only make a prediction. But the supervision process is the process through which you try to make a difference.
The point was made earlier by Mr. Wappel that those in statutory release have a higher rate of offending after the termination of the sentence when they're no longer on supervision. From that we can learn that the supervision process suppresses criminal activity. But we also know that those released from jail will generally reoffend within the first two years. The curve of reoffending levels off quite dramatically after two years. So it is crucial to have that suppression of criminal activity in place long enough for the person to hopefully re-establish himself in the community. In fact, the average period of supervision for statutory release is about seven months. So I think we're saying we have the evidence that supervision works, but it's also being applied in the short term.
We really have to separate this notion of the parole board predicting and using that as a way to dismantle all the activity that might actually change things. So if the parole board predicts I will be a risk, we really want a correctional system that tries to make the difference. If we simply use the prediction as a way to preclude any activity, we ensure that the person will reoffend.
The Chair: Thank you, Mr. Stewart.
Mr. Tom Wappel: Thank you.
This is to the St. Leonard's Society, but first allow me to say I think this has been an extremely worthwhile exercise. It has certainly focused for me exactly what everybody's talking about and why.
In the St. Leonard's Society's letter, Ms. White, you say they believe it is crucial that we offer a period of time under supervision in the community. I don't think there's any member of this subcommittee who disagrees with that statement. So I hope you're reassured by that.
You said we should not try to tinker with this system, because it works. I think you even used the word “tinker”.
Monsieur Fournier, the deputy minister, in his remarks said:
In conclusion, overall the present system...works
well. ... The violent offence rate for statutory release has gone
down for the past five years. ...
Is there room for improvement? Of course. This could
include such things as better programming; improved
—when we're talking about statutory release, I don't know—
enhanced supervision in the
community; more...partnerships with community groups...
So the deputy minister thinks there's always room for improvement. Do you consider that tinkering?
Ms. Elizabeth White: No, I don't consider that tinkering, Mr. Wappel. As I said in my earlier comments, any resources and improvements that can be made to community corrections will only increase public safety.
Mr. Tom Wappel: Great, thank you.
The Chair: Mr. MacKay, you have a question?
Mr. Peter MacKay: Just to follow up on that note, I think resources is the one big issue where everybody we hear from and everyone on the committee agrees we could do more. It's just a matter of whether we spend more on rehabilitating prisoners—it's obviously the government's decision—or do we put more into health care or education? This is the bigger philosophical question.
I just want to follow up on something. I don't mean to focus on what you said, Mr. Jackson, but one thing that bothers me in the discussion, and sometimes gets lost, is that if a person is out in eight years and not twelve years, they're still being afforded a break. Whether they are serving their sentence in prison or in the community, they're serving that debt to society that has been assigned by the judge. We can agree or we can disagree, but the fact is that was the numeric time that was attached to what that person did. Rightly or wrongly, after the appeals are exhausted, that's the time that was attached.
We sometimes shy away from using the word “deterrence” any more. General and specific deterrence is still a factor in determining what that sentence is going to be. Reformation, rehabilitation, protection of the public: all of those are phrases used in arriving at the numeric sentence, but deterrence still does exist.
As for whether or not we can change the system, based on what you've just said, we can't do anything if we're going to be paralysed by the fact that there's going to be a charter challenge. We're going to be bound up by it and be completely paralysed when it comes to trying to change something. In effect, what you've said is that it can't be retroactive, that we would create prison riots because a new system would be in place that would afford somebody a different sentence calculation or period of time before they could be released. I don't believe that to be true.
Dr. Michael Jackson: What I'm talking about are the implications of the kind of change that we've been told the committee is mulling over, that being the idea of moving to a discretionary release system at the two-thirds rather than the presumptive release model we now have. I guess you've all seen that inverted pyramid CSC has developed in terms of the crime funnel, the total number of offences reported to the police, the number of offences that are cleared up by charge, the number of people who are sentenced to imprisonment, and then the number of offences committed by those on statutory release, which gives you the one-half of one percent. In terms of public protection and the kind of dividend you would create by abolishing statutory release—which would be that short-term protection—given the fact that more people will be kept in, you would have fewer people contributing to that one-half of one percent while on statutory release.
You have to discount that by the fact that you'd have the effect Graham has talked about in the absence of supervision. People will in fact be released without supervision, with a magnified chance and risk of reoffending down the road, in addition to the fact that you will create an uneven system within the institutions, because you can't make these things retroactive without invoking the notwithstanding clause. All those things have to be held in the balance.
What I've said, and what I hear from most of the people today, is that the kinds of dividends in public protection are either non-existent or are so small that it would be counter-productive to introduce them, given how they would move against the grain of all the recent legislative interventions, which are to in fact use less rather than more imprisonment as part of our correctional climate.
The Chair: Thank you, Mr. Jackson.
Mr. Peter MacKay: I have a very specific question to follow up on that.
The Chair: Very specific.
Mr. Peter MacKay: Why is it presumed that the National Parole Board is, in its wisdom and in its discretion, going to markedly increase the number of people they hold to warrant expiry if this new system is put in place, under which they would essentially review every one? Under the current system, we know they do have the discretion, if they can justify it, to hold a person to warrant expiry. They don't do that in the overwhelming majority of the cases they see. Why do you presume they are going to hold a significantly greater number to warrant expiry if given this new supervisory power?
Dr. Michael Jackson: It's because the criteria are very different. The general criteria for release on parole are whether the offender can be released into the community without undue risk to the community, and whether or not release will contribute to their reintegration. Those are the criteria under the Parole Act.
Mr. Peter MacKay: But that's not the same.
Dr. Michael Jackson: The parole board has determined that if people have reached the two-thirds point, they've either typically applied for parole or have been given such discouraging reports by their case management teams that their incentive is not to apply because they're going to get shot down. A judgment has been made that they don't meet those criteria.
For detention, the criterion is whether this person will commit an offence involving death or serious harm in the window between stat release and warrant expiry, and that's a very different criterion. Many people don't fit within the second or within the first under a scheme that abolishes that release. It would be the first criterion applied. Is this person someone whose release will pose an undue risk, or is this a person for whom release will contribute to their integration? The parole board has already cast its vote on that issue as no.
What I'm saying is that the evidence suggests that many of those cases can be and are in fact successfully integrated into the community because of the factor Graham has mentioned, and that's the fact that CSC then deals with those people in the community and makes the best of it. By all accounts, CSC does a very commendable job of that.
But that's the difference. Those people would not get the chance under a system that sees the parole board operating very cautiously. And I should say it's operating even more cautiously now, because under your scheme on statutory release at the moment, if someone commits a new offence, the parole board could say it would never have let him out. If you have a system of discretionary release, the parole board's going to know people will be pointing the finger at them, so their decision policies will be even more conservative.
The Chair: Mr. Tropak, on that point.
Mr. Rob Tropak: Yes, it's just a very quick comment, because the question keeps on being asked as to why it appears that there isn't some faith or trust in the parole board to make the appropriate decisions at the proper time.
I don't want to speak for everyone, but I think there's a feeling that the parole board, if it is to err, will err on the side of reducing the number of offenders released. It is more likely to do that.
Mr. Peter MacKay: What's wrong with erring on the side of protecting society versus giving this person a break and preventing a crime?
Mr. Rob Tropak: Let me just follow up—and I believe everybody would agree with this.
Given that in many cases—as is proven by the statistics on statutory release—what's required is viewing and interacting with that offender under supervision, you get a much better feeling when you're supervising an offender in the community. Supervisors are quite good at being able to determine when things are going wrong. If you take a look at the statistics for statutory release, there exists a high number of breaches of conditions that result in revocations. The number is higher than for day or full parole releases.
I think people would generally tell you that it's important to make a determination that, for many of these offenders who aren't released prior to statutory release, we must see them in the community. Once we see them in the community, we're in a much better position to be able to judge as to whether or not their release should be continued. It's much more difficult prior to release, and we feel that putting the onus on the parole board will reduce the number of overall offenders released.
The Chair: Thank you, Mr. Tropak.
Mrs. Venne, it is almost 10 o'clock. You will be the last speaker.
Mrs. Pierrette Venne: I quite agree and I intend to be brief.
I think, Mr. Chairman, that we should make a recommendation for a thorough clean-up of the National Parole Board in view of all the criticism we have heard of it this evening.
A number of people have told us that the Board was more than conservative and we've just heard it again. I even heard someone say today that he had no confidence in this board. I'm talking about someone fairly high up, actually a judge. When a judge comes to the conclusion that this board is not to be trusted, then I think there is certainly good reason to review it, or at least make a recommendation to that effect.
I think it is time for us to take a close look at the Parole Board. That is my last recommendation, Mr. Chairman.
The Chair: Thank you.
Are there any other comments from the witnesses before we conclude?
Mr. Jacques Saada: Since I didn't have the time to do so before, I'd like to add a short word to what Tom already said.
The Chair: Okay, thank you for coming, everyone. It's getting late, and I know some of you came an awfully long way.
Thank you very much for the time and the energy that you have put into this.
The meeting is adjourned.