A flawed Compass: a human Rights Analysis of the Roadmap to Strengthening Public Safety

Refocusing the CCRA

In justifying what is described as “refocusing the CCRA” the Panel accepts “the key rehabilitative principle and CSC’s responsibility …to provide the offender with ample opportunity to learn the skills required to correct behaviour”. At the same time, the Panel “does not view the rehabilitation mandate of CSC as a one-way commitment.” We are told that “the foundation of the Panel’s philosophy is the belief that if rehabilitation is to occur and truly be sustained, it must be shared between CSC and the offender.” Offenders “must seize those opportunities, pick up the tools of rehabilitation and use them.” The Panel, therefore, recommends legislative change “to support an increased emphasis on offender accountability” and because the CCRA “is highly prescriptive in how CSC should operate, and what it can and cannot do” proposes changing the principle of ‘least restrictive measures’ with the principle of ‘appropriate measures’ to support correctional plan implementation”. ⁷⁹

The increased emphasis on accountability of offenders to rehabilitate themselves is justified by the Panel’s view of fundamental principles of democracy.

A fundamental principle of democracy is that individuals are responsible and must be held accountable for their actions. This should be no different simply because an individual is incarcerated. In fact, the Panel believes that it becomes even more important for offenders to accept accountability for their criminal acts. They must learn that they are responsible for their actions and are obligated to respect the rights and freedoms of others in society.⁸⁰

2. Proposed Amendments to s. 4

Based on this “fundamental principle of democracy” rationale, the Panel set out its recommendations for amending s.4 of the CCRA⁸¹, the section that contains the principles that guide the interpretation and implementation of the Act. Some of the Panel’s recommended changes are welcome. For example the change to s.4 (h) that “correctional policies, programs and practices respect… the needs of offenders with special mental health requirements” will give legal force to the Panel’s recommendations, (ones that have been previously made to CSC by the Correctional Investigator) regarding the dire need for improved services to this vulnerable group. Other proposed amendments seem to be no more than authoritarian rhetoric adding nothing of substance to the existing legislation. The clearest examples are a proposed new section entitled “Offender Accountabilities” and changes to the existing section 4(j).

The existing s.4 (j) reads “that offenders are expected to obey penitentiary rules and conditions governing temporary absence, work release, parole and statutory release, and to actively participate in programs designed to promote their rehabilitation and reintegration”. The Panel’s amendment would have the section read “those offenders be obligated to obey penitentiary rules and to respect the authority and position of the staff, and any conditions governing their release to the community”. The underlined changes convert “expected” to “obligated” and enlarge the obligation of offenders to “to respect the authority and position of the staff”. The changes are unnecessary. Under other sections of the Act it is crystal clear that prisoners are already “obligated” to obey penitentiary rules and respect the authority and position of the staff. The CCRA and CCR Regulations set out a comprehensive prison disciplinary process which includes a code of offences for breach of which prisoners can be disciplined. Section 40 CCRA provides:

40. An inmate commits a disciplinary offence who

(a) disobeys a justifiable order of a staff member;

f) is disrespectful or abusive toward a staff member in a manner that could undermine a staff member’s authority;

(r) wilfully disobeys a written rule governing the conduct of inmates.

It is important to note that these disciplinary offences require that any order given be “justifiable”, that disrespect be of such a nature that “could undermine a staff member’s authority” and that in the case of disobedience of a rule it be wilful and and that the rule be a written one so a prisoner can have notice of its existence. The purpose of this carefully drafted language is to reinforce both the legitimate exercises of staff authority and concepts of individual offender responsibility. The Panel’s amendments seem informed by an authoritarian concept of compliance that characterized the penitentiaries of the nineteenth century.

As to the Panel’s concern that offenders being obligated to “respect any conditions governing their release to the community, ss.133-4 CCRA already provide:

Conditions of release

133 (2) Subject to subsection (6), every offender released on parole, statutory release or unescorted temporary absence is subject to the conditions prescribed by the regulations.

134. (1) An offender who has been released on parole, statutory release or unescorted temporary absence shall comply with any instructions given by a member of the Board or a person designated, by name or by position, by the Chairperson of the Board or the Commissioner, or given by the institutional head or by the offender’s parole supervisor, respecting any conditions of parole, statutory release or unescorted temporary absence in order to prevent a breach of any condition or to protect society.

Breach of these conditions and instructions can and does lead to suspension and revocation of conditional release and return to prison. In light of these existing statutory provisions there is no reason to amend the Act and the Panel’s recommendation raises only the issue of redundancy.

The rationale that the report offered for the finding that offender accountability must be considered a key focus of the CSC is that the responsibilities associated with the rehabilitative mandate of the CSC are being unevenly shared between CSC staff and prisoners. The Panel, earlier in its executive summary, writes:

CSC is to be commended for its efforts to rehabilitate offenders but it continues to face resistance from a portion of offenders who have no interest in rehabilitation and are content to “wait out” the system until they reach statutory release... It is the belief of the Panel that life inside a penitentiary should promote a positive work ethic. Today, an offender working hard at rehabilitation is often treated no differently than an offender who is seeking only to continue his criminal lifestyle.⁸²

The Panel goes on to state that while “it is the responsibility of CSC to provide …the offender with ample opportunity to learn the skills required to correct behaviour”⁸³, it is the offender’s responsibility to then use those tools to rehabilitate themselves. Consequently, the Panel concluded that it was necessary to strengthen the language of the CCRA to include a more robust conception of offender responsibility and accountability. In furtherance of this conclusion, the Panel proposes that two changes be made to the CCRA. First, the Panel recommends that a substantive section entitled “Offender Accountabilities” be inserted into the Act and that the proposed section contain, at a minimum, the following language:

Offenders, as part of their commitment to society to change their behaviour and in order to help protect society, must:

a) obey penitentiary rules as established by CSC;

b) respect the authority of staff at all times; and

c) actively participate in programs identified by CSC in their correctional plans (e.g., education, work, correctional programs).

As we have shown the CCRA already leaves no doubt as to offenders’ accountability to obey penitentiary rules and respect staff authority so this recommendation, at least with regard to (a) and (b), is unnecessary. Similarly, with respect to (c) the CCRA already provides that offenders are “expected to participate in programs designed to promote their rehabilitation and safe reintegration” and since these programs will have been identified in their correctional plans the Panel’s change adds nothing to offender accountability. The inclusion of the correctional plan in this proposed amendment does however raise other issues. As we will demonstrate later, this recommendation reflects the Panel’s unjustifiable belief that the “correctional plan’ contains such a powerful elixir of rehabilitative potential that an offender who refuses to participate in it can be legitimately deprived of rights and privileges.

We would also note a revealing omission in the Panel’s recommended amendments. The Panel, in response to several submissions acknowledged the lengthy waiting periods for some programs that are identified on offenders’ correctional plan, which often means that access to early release is denied to individuals who might otherwise be safely managed in the community. The Panel recommended, therefore. that “every effort should be made to review the modules of cognitive-based correctional programs to identify and lessen redundancies, thereby shortening program content and required time frames.”⁸⁴ Consistent with its mantra of greater accountability, why then would the Panel not recommend a correlative amendment to the CCRA that CSC not just make “every effort” but be legally obligated to deliver programs on an offender’s correctional plan in a timely manner?

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