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

Implications for the Overrepresentation of Aboriginal Prisoners

While we have addressed the issue of overrepresentation of Aboriginal people in federal prisons in chapter 10 of this response, one very disturbing consequence of the Panel’s proposal to abolish statutory release is the impact it will have on Aboriginal offenders. The overrepresentation of Aboriginal offenders in Canadian prisons has been condemned by the Supreme Court of Canada as a “national crisis” and “a staggering injustice”²³⁷. As the CSC Research Branch and the Correctional Investigator have documented, the grant rates at full parole for Aboriginal offenders fall below the rates for non-Aboriginal offenders, leading to Aboriginal offenders being released and supervised on statutory release at a significantly higher rate.²³⁸ The Panel’s proposed abolition of statutory release would see a greater representation of Aboriginal offenders serving their complete sentences in prison, further increasing their over representation in federal custody, and thereby deepening the national crisis and intensifying the injustice. Yet nowhere in its Roadmap does the Panel give this implication any consideration. In light of our analysis in Chapter 10 a strong case can be made that the aggravating impact of the abolition of statutory release on the systemic discrimination facing Aboriginal offenders should in and of itself be sufficient reason to reject the Panel’s proposal.

7. The Unspecified Cost of Abolishing Statutory Release

The Panel makes no effort to quantify the financial costs of its proposed abolition of statutory release. However, the Canadian Criminal Justice Association and the John Howard Society of Ontario reviewed the likely cost implications of abolition and provided the following calculation showing that the price for this change could approach one billion dollars²³⁹:

1. In 2006-7, there were a total of 8,027 releases from federal institutions - 2,245 (28%) Day Parole, 168 (2%) Full Parole, 5,250 (65%) Statutory Release, 264 (3%) Warrant Expiry and 100 (1%) “Other” (death, transfer to other countries, etc)

2. The average length of supervision on statutory release was 6.6 months.

3. Assuming the worst case scenario, that is all current SR cases will only be released upon Warrant Expiry, we would be looking at an average increase of 2888 incarcerated inmates at any point in time (5,250 X 6.6 months/12 months). However, in an average year, about 40% are already revoked at some point during their statutory release. Assuming that on average, this happens after the half way point of their release period, some 20% would already be accounted for within the current cell occupation and would not require new cell capacity, leaving a net requirement for 2310 additional cells (2888 less 20 %).

4. It is not possible to predict how successful the new motivational, program, and educational initiatives may be at this time, so looking only at the worst case at this time for planning purposes, translates into dramatic cost increases for CSC.

5. Assuming that cell space is currently at, or close to, capacity an additional 2,310 cells will have to be brought on stream. The average construction period for an institution is 5 years so there could be a massive increase in current cell occupation norms in the interim.

6. An additional 2310 cells require 5 major institutions (using the UN standard of 500 per institution). Based upon the CSC estimates quoted in the Deloitte & Touche report of $400,000 per medium security cell all-in cost, this would require an expenditure of approximately $924 million.

7. The 2004-05 cost of keeping an inmate in a penitentiary was $87,919. With this number, the annual costs of maintaining an additional 2,310 inmates would be $203 million. With the average cost of community supervision at $20,320 per offender, abolishing statutory release would lead to a reduction of $47 million in the community, leaving the net cost to be approximately $156 million per year.

8. We do not suggest that every offender currently released via SR would be detained until Warrant Expiry, however, for discussion purposes this does illustrate the potential, worst case costs. A more conservative assumption would be that approximately one-third of this group would be granted parole, given that the grant rate for Full Parole was 43% in 2006-07 and a significant portion of those released on SR were not granted parole. Even under this scenario, there would be an additional 1,525 inmates on average, requiring capital cost of $610 million and additional operating costs of $103 million.

While costs should not outweigh community safety, proposing huge expenditures of this nature without any evidence of increased community safety is irresponsible public policy, especially in the context of the lost opportunities that spending in this way represents. With just a fraction of this amount we could better address the issues of mental illness in prison and the community and make real progress in reversing the many impediments to Aboriginal reintegration.

8. Abolition of Accelerated Parole Review

Non-violent first time penitentiary prisoners are eligible for release under what is called “accelerated parole review”. Under the CCRA it is presumed that when certain eligibility criteria are met, the person will be granted parole unless the National Parole Board has reasons to believe that the person is likely to commit a violent offence before warrant expiry.

Accelerated Parole Review is a way to address the problem, identified by the Panel and many others including the Auditor General, where those serving short terms are effectively excluded from parole consideration because the time available before a parole hearing is not sufficient to complete the correctional plan. By pre-screening prisoners on the basis of being first-time penitentiary inmates convicted of a non-violent offence, the application process is expedited by having the review take place without a hearing, and presuming release unless the National Parole Board has grounds, documented by CSC case managers, to override the presumption.

Ironically, those who are least likely to be released on parole are those who are serving short federal sentences simply because there is insufficient time to be assessed, placed in an appropriate institution and complete the required programs prior to their parole eligibility date. 7The Panel’s proposal to abolish accelerated parole review removes the means that was developed specifically to address this problem. The Panel’s expectation that people complete their “correctional plan” prior to being considered for earned parole only serves to ensure that those serving short sentences will remain in prison longer simply because it is not possible to be assigned and complete the correctional plan in the time available.

The Panel makes other recommendations that it thinks might speed up the initial assessment and programming of short-term offenders, but those proposals are neither new nor adequate to address the problem. The inability of CSC to process prisoners and have them complete their correctional plan before their parole eligibility date was the focus of Auditor General reports as far back as 1996²⁴⁰ and has already been the subject of considerable scrutiny and effort by CSC. The fact remains that the time available for those serving shorter sentences to complete their plan, especially with the additional components like work readiness proposed by the Panel, will be impossible to achieve.

The Panel, in an apparent major contradiction acknowledges that it “will require a longer period of time for the preparation of the plan and should be the result of a collaborative approach between institutional and community parole officers.”²⁴¹ Clearly these new expectations will undermine the prospect of parole for those serving short prison terms.

The net result is that these non-violent offenders will serve their full sentence and be released without support of supervision into the community. There is no logic or evidence provided by the Panel to support its contention that the elimination of accelerated parole review does not address a real and substantial problem or that its loss could be compensated for in other ways.

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