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

Employment as a Condition for Conditional Release

Throughout the section on earned parole, the Panel refers frequently to the necessity of employment after release suggesting that the likelihood of immediate employment would become a much more important criterion than it is now for release on parole.

“… parole eligibility would be considered after assessing risk, assessing progress in addressing criminogenic, behavioural and skills deficits described in the offender’s comprehensive correctional plan, and assessing the community reintegration requirements, including employment options when released as outlined in the community release plan;

“… any release plan submitted to the NPB should include CSC’s consideration of either the placement of the offender directly into a job or with a high likelihood of a job placement²²⁹

“The two key components of conditional release, day parole and full parole, must be reviewed to ensure they are aligned with the earned parole and community employment approaches and are fully supported by a community infrastructure that offers supervision, programming interventions, and service delivery. This will mean closer liaison with police services, provinces and municipalities, new and innovative supervision strategies, and comprehensive release planning that continues the employment training and job-readiness programs started in the penitentiary. ”²³⁰

While everyone would agree that employment after release is often important, the proposal to make employment an important factor for granting parole could have serious and unintended consequences. It is very difficult to arrange employment for prisoners or for prisoners to find their own employment while incarcerated. Even amongst those few employers who might consider employing a person straight out of prison, even fewer would be willing to promise a job without the opportunity to interview the individual, being able to assess his qualifications or character and not knowing when or if the person would become available. While having a job is an important advantage, requiring that a person have a job “or strong likelihood of a job placement” would be an insurmountable barrier to parole for the great majority. No feasible prison training or placement service would ever be able to meet the requirement for locating employment for more than a tiny fraction of prisoners. Indeed the approach of the Panel to employment and employability is fraught with so many issues we have dedicated a chapter to this topic alone.

5. The Promise and Implications of an “Accountability Contract”

The Panel not only proposes that additional criteria be added for release under parole, they also propose what they call an “accountability contract”.

The Panel suggests that the comprehensive release plan be developed as an accountability contract between the offender and CSC with clearly defined expectations associated with well-developed milestones for the duration of the conditional release period.²³¹

At first this contract idea appears to relate only to expectations of individuals while under community supervision. If by “contract” the Panel means that those on release should have an explicit understanding of the expectations of them to remain on parole, then this is neither new nor problematic. However, taken in the context of the other statements and recommendations, the proposal is neither clear in its application nor are the implications adequately considered.

What is troubling about this concept is that the “contract” appears to have applicability to far more than simply “clear statements of offender accountability with respect to expected behaviour in the community.”²³² Indeed, the contract appears to apply throughout the entire sentence and be based largely on the correctional plan - a plan developed not by the Parole Board in the context of the legal criteria of the CCRA, but by institutional staff at the very beginning of the sentence.

Consider, for instance, the following statements:

The Panel believes that particular emphasis will have to be given to the following key transition factors to ensure a comprehensive release plan is put in place, ensuring the seamless blending of the offender’s institutional and community correctional plans: [Emphasis added]…

b) focus on the need for the extension of correctional interventions that link penitentiary program results with the identification of behavioural, educational and employment programs in the community;²³³

The implications of viewing parole as a contractual obligation which extends to decisions of the National Parole Board based on the successful completion of the correctional plan is inconsistent with the legislative criteria and principles for granting parole as set out in the CCRA. The Panel, with its proposed “accountability contract” fails to recognize that the National Parole Board is an independent body completely distinct from the Correctional Service of Canada. This is not an accident. Separation of release decisions from the operations of corrections helps to avoid the potential conflict of parole being used as a carrot by CSC for objectives that are unrelated to the criteria for release.

As noted earlier, the criteria for parole as set out in the CCRA relate to the risk to society by reoffending and the potential contribution of parole for successful reintegration into society.²³⁴ Awarding parole as a response to the completion of the correctional plan, while considered by the Parole Board as relevant to both risk assessment and reintegration potential, is not a sufficient or necessary independent criterium that can either justify the grant or denial of parole.

In the normal meaning of a “contract”, obligations flow in both directions. If one party meets the terms of the contract the other party is obligated to deliver on their reciprocal obligations. If completion of the correctional plan becomes an “accountability contract” that leads to a person “earning” parole, then clearly conflicts would develop with legislated principles that the Panel also appears to support. For instance, if a person was released on the basis of completion of the correctional plan but was not otherwise an acceptable risk, the principle of public safety would be violated. On the other hand if a person is denied release because they failed to complete the plan but were otherwise considered an acceptable risk, the denial of release conflicts with the principle of using the “least restrictive measure”. The National Parole Board cannot be obligated to make decisions on the basis of an “accountability contract” and certainly not one developed by a case management officer during the first few weeks of the sentence.

Even if we ignore the serious problem of the “accountability contract” conflicting with the criteria of the CCRA, it would put a substantial responsibility on CSC to provide the required programs with sufficient timeliness and quality to make it possible for prisoners to complete their obligations prior to their parole eligibility date. It would be both unfair and also a violation of CSC’s end of the contract if an offender was ultimately detained in prison solely because the programs were not available. Yet as we have noted earlier the Panel refrained from recommending in its menu of legislative changes a provision that would obligate CSC to deliver programs in a timely manner, likely because CSC would be either unable or unwilling to meet that responsibility, given that they have been chronically unable to meet parole eligibility dates for most short term and many other prisoners.

Clearly, the promise of a “contract” for parole in response to completion of the correctional plan is one that prisoners will immediately perceive as completely one-sided and empty rhetoric. They would understandably see it as a barrier to release rather than as an incentive. Hollow rhetoric about “contracts” and “earned” parole provide neither motivation nor reward and only contribute to prisoner cynicism that the proposals are intended to sound good to the public, who do not understand the implications, rather than be a means to help prisoners succeed.²³⁵

In the final analysis, it is very difficult to reconcile the notion of a contract with either “the protection of society [as] the paramount consideration in the determination of conditional release”²³⁶ or with the human rights principle of employing the least restrictive measure. Once again we see how human rights considerations, which limit the potential for the misuse of authority, and good corrections are complimentary concepts that the ideology and recommendations and of the Panel seriously threaten.

We are left in no doubt that the abolition of statutory release will have a huge impact on the federal prison population. The release mechanism that is used in two-thirds of all releases will be abolished, leaving those so affected to serve 50% more time in prison than is the case now. The Panel’s minimises this impact by suggesting that their proposals for work and employment and the motivational effect of accountability contacts based on the correctional plan will result in a sharp increase in parole being granted and that will compensate for the restrictions on gradual release. This is little more than “pie in the sky” corrections. To compensate for their statutory release recommendations every prisoner would need to be released on earned parole before the two-thirds point in their sentence. The Parole Board would need to have a grant rate of almost 100%. We challenge any experienced correctional or parole administrator/decision maker to seriously argue that is a realistic scenario.

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