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

Parole as an Alternative to Statutory Release

The Panel confidently asserts that even with the abolition of statutory release, the goal of community reintegration and public safety will be furthered through the implementation of the Panel’s other recommendations. Prisoners who currently leave prison on statutory release, would, in future, become motivated and able to gain their release under the reformed “earned parole” model advanced by the Panel. The National Parole Board’s grant rate would increase obviating the need for statutory release. It is our judgment that such confidence is not only misplaced, but based upon any objective analysis, demonstrably misconceived.

Consider the description offered by the Panel of those presently being released on statutory release and who are, therefore, the particular targets for the new earned parole regime. The Panel acknowledges that the statutory release group includes many people with systemic disadvantages:

“According to CSC, the average profile of an offender who reoffends while on statutory release is an Aboriginal male under 35 years of age, with low educational attainment (no high school diploma), unemployed at arrest, with gang affiliation, serving a sentence of less than three years usually for robbery. In addition, the typical offender tends to have a history of substance abuse, a previous criminal history, a previous negative correctional history (escape, segregation, revocation of parole), low program completion rates and higher levels of imposed residency conditions at release.”²²⁴

The Panel “believes” that should statutory release be abolished many individuals who are either denied or who do not apply for parole would approach their correctional plan with new-found enthusiasm. In fact, the circumstances of the offense, the inability to produce coherent release plans, addictions and mental illness, learning disabilities, illiteracy and many other disadvantages weigh heavily against a successful parole application. These are not factors that most prisoners can easily compensate for or change. Other prisoners will have already failed on parole and regardless of the effort they put into their correctional plan, have no reasonable chance of being released on parole again. Additionally, it needs to be recognized that family and community support, crucial factors for success, are not available for many prisoners and cannot be addressed through a correctional plan.

The continuous focus of the Panel on “motivation” as a primary factor that determines release on parole overlooks the enormous barriers to parole faced by so many prisoners and ignores or minimizes what would be required to overcome them. Clearly, it is difficult to be “motivated” to address factors that are perceived to be beyond a person’s capacity to control. No incentive or punishment can address this perception. The suggestion that large numbers of those currently being released on statutory release might be released under parole if they tried harder is simplistic and insensitive to the onerous systemic barriers and personal disadvantages so many of these people face.

Consider further that the Panel in recommending the abolition of statutory release makes a series of recommendations that would make it more difficult to “earn” parole. Currently, the CCRA sets out the criteria for release on parole as follows:

102. The Board or a provincial parole board may grant parole to an offender if, in its opinion,

(a) the offender will not, by reoffending, present an undue risk to society before the expiration according to law of the sentence the offender is serving; and

(b) the release of the offender will contribute to the protection of society by facilitating the reintegration of the offender into society as a law-abiding citizen.²²⁵.

The first criterium relates to the risk of harm should the person reoffend. The clause does not talk about the risk “of” reoffending but rather the risk “by” reoffending. In this way the Board must consider both the risk that an offence might occur and the seriousness of any such offence.

We should ask why it is that the first criterium does not set a zero tolerance policy for offending. The answer is given in the second criterium where it says that the Board must conclude that release under supervision will contribute to the protection of society by facilitating reintegration. The operative words here are “contribute” and “facilitate” – neither of which implies certainty. In short, the question that must be answered by the Parole Board in each case it hears is not just whether an offence might occur but whether it is less likely to occur while under supervision than on full release. It is the task of the Board to choose the least risky strategy because the “no-risk strategy” does not exist.

There is nothing in the legislative criteria that suggest that applicants must do something to “earn” release. Parole is not intended as a reward for compliance with institutional rules, participation in treatment, or positive attitude although the Board should and does consider all of these factors relevant to assessing risk. In the end, however, consistent with the human rights principle of least restrictive measure, the statutory mandate of the Parole Board is to assess only the relative risk to public safety should the applicant be released under supervision now or released at a later date without supervision.

Adding criteria that are intended to meet other purposes, such as prison management or to reward “good” behaviour, introduces objectives that are not related to public safety. Indeed, if parole is denied even though it is assessed as the best way to “facilitate” reintegration, public safety is actually reduced. The legislative rationale for parole is the long-term safety of the community, not to advance any particular agenda of the correctional system. It is, therefore, quite concerning that the Panel would make recommendations for parole granting that appear to introduce a whole additional set of criteria related to “earning” parole that are not necessarily related to risk that would not only make obtaining parole even more difficult but raise serious issues of implementation. Two of these additional problematic elements of earned parole relate to adherence to the correctional plan and the prospect of community employment.

The Panel recommends that:

additional criteria for granting parole would reflect the requirement for the offender to earn release through adherence to the correctional plan.²²⁶

Offenders must fully understand the consequences of not meeting correctional plan requirements with respect to access to penitentiary privileges and conditional release, and the consequences of reoffending while in the community on conditional release.²²⁷ [Emphasis added]

Case management strategies would include intensive and ongoing risk assessment and prediction; the development of a comprehensive correctional plan that sets out a blueprint for the offender to move to gradual release to the community with a job or the strong likelihood of a job placement; clear statements of the offender’s responsibilities and accountabilities for following that blueprint to earn parole; engagement of offenders in the parole process as early as possible and on a continuing basis; and preparation of offenders for release through more comprehensive community release planning.²²⁸ [Emphasis added]

These additional elements of earned parole raise serious issues of implementation and accountability that undermine the Panel’s confidence that earned parole is an effective substitute for statutory release.

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