Yukon College Papers by Murray Lundberg, 1993-1994
Lisa Hobbs Birnie's A Rock and a Hard Place,
and changes enacted in Bill C-36,
The Corrections and Conditional Release Act
April 12, 1993
A formal system which enabled the Canadian criminal justice system to shorten an offender's sentence of incarceration under certain circumstances has been in use since 1899, under the Ticket of Leave Act. The system underwent many modifications over the years, and in 1959, the Parole Act was enacted, and the National Parole Board established. Parole, in the current ideal, has as its primary aim the facilitation of the offender's reintegration into society:
the experience was to be facilitated by the kindly but firm supervision of a parole officer qualified and motivated to provide guidance through the difficulties of re-entry into the world outside the walls. This educational and tutorial process was considered to be greatly superior to a traumatic abandonment of the inmate in a perhaps hostile and certainly unhelpful society (Cole and Manson,1990:vi).
The concept of parole as a form of gradual release for offenders is much criticized because of a lack of consensus as to its effectiveness. In several American states, parole has been abolished, but in Canada, the parole system continues to undergo
modifications to enhance its positive aspects and limit any possible harm to either the offenders, or society.
Lisa Hobbs Birnie is a career journalist who was a member of the National Parole Board from February 1978 until June 1986. In "A Rock and a Hard Place", Birnie shows the "human context" in which the Parole Board operates, and uses sample cases to
describe the complex considerations which go into a Board decision. Although the subtitle of her book "A Rock and a Hard Place" is "Inside Canada's Parole Board", many facets of corrections are discussed, and the Parole Board is actually the branch for which she has the least criticism. She sums up her feelings about the Board by stating that:
I left [the Parole Board] satisfied that the board does an essential and highly credible job, that the parole process is not in conflict with the sentencing process, that the policies and practices of the board do not needlessly expose the public to harm, and that the basic premise on which parole is founded - that a person can recreate his or her life - reflects the most creative and enlightened ideals of Canadian society (p.207).
A shift in the attitudes of Canadians in regard to corrections in general, and parole specifically, are shown by Birnie through changes in operational policies of the Parole Board during her term on the Board. Since that time, that shift in attitudes is evidenced most strongly by the changes in the statutory framework of the National Parole Board brought about by the enactment of Bill C-36, the Corrections and Conditional Release Act (1992).
The changes both in policy and in the statutory framework have centred around the often contradictory concepts of fair treatment of offenders, and minimization of risk to society. Birnie (p.36) states that:
The greatest impact on the National Parole Board of the landmark human rights legislation that marked the years of 1979-1984 centred on the question of "fairness", in particular on the manner in which board members conducted hearings.
Not surprisingly in a non-academic book, Birnie glosses over both the complexity and the extent of that "landmark human rights legislation", of which the Charter of Rights and Freedoms and Bill C-36 could be seen as extensions. For the purposes of this Paper, however, a basic understanding of the nature of that legislation is necessary. Cole and Manson (1990) describe Howarth v. National Parole Board (1976) as the "first salvo in a dynamic juridical process that consumed over a decade of Canadian prison litigation"(p.50), and state that Martineau v. Matsqui Institution Inmate Disciplinary Board (1980) "opened the modern era of prison law in Canada and exposed internal parole and prison processes to judicial scrutiny" (p.63).
Until the mid-1970s, the Parole Board had been able to operate in relative secrecy, with their decisions having been described as an administrative matter, and adjudged as such in Ex parte McCaud (1964). As an administrative tribunal, their activities were not subject to judicial review, even by the protections of the Canadian Bill of Rights, particularly subsections 2(c)(i) and (e), which guaranteed "minimum procedural safeguards" and protection from undue delays (Cole and Manson, 1990:185-186).
Insulation from judicial review is more than simply the unavailability of legal recourse. Within the hidden processes of imprisonment, the absence of external scrutiny exacerbates inherent tensions and entrenches the dichotomy between the powerful and the powerless (Cole and Manson,1990: 43-44)
Birnie noted that dichotomy, and stated that it was difficult "not to fall prey to seeing the split [between staff and inmates] as a primeval struggle between good and evil", and that there was a tendency to become paternalistic in decision-making (p.42).
The creation of the Federal Court of Canada in 1971 also created, in section 28 of the Federal Court Act, the need to decide whether a Parole Board decision was indeed administrative in nature, and if, in that context, s.28 required that the decisions "be made on a judicial or quasi-judicial basis" (in Cole and Manson,1990:48). A large number of cases, including Howarth and Martineau, went before the courts before the determination was finally made that the Board must apply the principles of natural justice inherent in judicial or quasi-judicial functions; the Parole Board had to make major changes to several of its policies to conform to those principles.
The enacting of the Canadian Charter of Rights and Freedoms in 1982 has resulted in new cases regarding inmates' rights, and Bill C-36 is at least partially an attempt to formalize some Corrections policies, while reconciling those policies with the Charter.
Recognition of the need, in matters of Parole Board policy, to balance the "fairness" issue with that of public safety was brought to critical focus by "a series of homicides committed by persons on various forms of conditional release in 1987 and 1988" (Cole and Manson,1990:423). Correctional Service Canada (CSC)'s overview of Bill C-36 states that "the Act ...explicitly makes protection of the public paramount in all decisions regarding the treatment and release of federal inmates".
The Parole Act lists, in section 16(1), three criteria to be considered in the granting of parole; the Board must consider that: (1)"...the inmate has derived the maximum benefit from imprisonment"; (2) "the reform and rehabilitation of the inmate will be aided by the grant of parole"; and (3) "the release of the inmate on parole would not constitute an undue risk to society". The interpretations which can be attached to these
phrases is, however, "so broad as to be almost devoid of substantive meaning" in a legal sense (Cole and Manson,1990:431), and as a result, the Board has extremely wide discretionary powers in granting, refusing, or suspending parole. Ekstedt and Griffiths have noted (1988:284) that "this results not only in disparity among decisions but also in an inability to predict what the outcome of the deliberations will be in any particular case".
When Birnie first became a member of the Parole Board, parole decisions were often based on information brought forward in "rap sessions" held before the formal hearings. This information was often illegally obtained, or merely rumour. Birnie notes, however, that:
sometimes the rumour was of such a grave nature - for instance, suspicion of involvement in a stabbing or of trafficking in drugs - that it could not be cavalierly discounted in deciding whether an inmate posed any threat to the community (p.39).
The use of this type of information was made easier because of the fact that personal interviews with the offender were not required under the Parole Act. The justifications for that were the heavy work-load of board members, and the fact that the Board considered its decisions as merely administrative; this allowed for decisions to be made, by either some or all of the required number of Board members, on the basis of written reports regarding the offender's history and potential future.
It was not until Couperthwaite v. National Parole Board in June of 1982 that "the Supreme Court ruled that there could be no discussion of a case without the inmate being present" (Birnie, 1990:44). There are occasions when some details must remain
secret, such as in the case of informers, but Cole and Mason (1990:429) note that: "aware of the fundamental injustice of making decisions about freedom on the basis of undisclosed
information, the Board is moving ever closer to a policy of full disclosure". Bill C-36 now allows the public, including victims and the media, to attend parole hearings with the Board's consent.
The involuntary transfer of offenders has been a cause of undue hardship for some inmates and their families; Birnie (p.40) tells of showing up for parole hearings to find that one or more of the inmates scheduled to appear had been transferred to another facility without any notice. The inmates were often taken from their cells "in the middle of the night [as a way] for a warden to keep the lid on his prison". Families would be turned away at the prison gates, told only that they would be notified by mail of the move; for the inmates, it could mean that parole would be delayed for long periods:
the move would mean the inmate's hearing, to which he was entitled by law, would be arbitrarily postponed, and his chances of parole were automatically reduced, because it takes an inmate several weeks to settle into a new situation and prison staff members several months before they feel they have sufficient knowledge of him to give a recommendation on parole (p.40).
Bill C-36 has changed the policy on involuntary transfers, in order to “ensure fairness and consistency"; offenders must now be given advance notice whenever possible, with the reasons for the transfer, and they must be given the opportunity to respond.
Birnie discusses fraud, "the middle-class crime" (p.165) as a crime, and class of criminal, which is not dealt with effectively within the corrections system. Though "the fraud artist is as addicted to cheating as the alcoholic is to the bottle" (p.166), there are no suitable rehabilitation programs. She objects to the commonly-used description of fraud as a victimless crime, and suggests that a fourth criteria for consideration in parole granting needs to be added to reflect the impact of fraud: "one that would recognize the social damage done to corporations and communities, as well as the psychological damage done to individuals" (p.175). This issue has apparently not yet been dealt with in Parole Board policy.
A common thread links many of Birnie's complaints about the correctional system: the scarcity of effective rehabilitation programs. Bill C-36 has not addressed Birnie's contention that "there has never been a strong, clear, unflagging committment to
rehabilitation in Canadian prisons"(p.51). In many of her sample cases, Birnie describes how the Board's decision, and the offender's life, would probably have been much different if the offender had an opportunity to enroll in substance abuse, sex offender, psychiatric counselling, life skills, or vocational training programs. As part of that problem, Birnie states that "first-class psychiatrists, psychologists, and social workers are reluctant to work in prisons. And once they are hired it may be difficult to get them to stay" (p.52). She describes how the novices in the system are worn down by both the inmates and the
bureaucratic demands on them. As a counterpoint to that situation, though, Birnie has high praise for the parole officers and Living Unit Development Officers with whom she worked. She describes them (p.36) as "an experienced and thoughtful group, efficient and good-humoured in an environment that simmered with pressure, frustration, covert violence, and overt nuttiness."
Birnie has added her voice to the many who say that one of the fundamental failings of the Canadian correctional system, including Parole Board decisions, is in the way First Nations peoples are dealt with. She uses statistics from Saskatchewan (p.194) to show that status Indian males over fifteen years old are 37 times as likely to end up in a provincial correctional facility, and status Indian women are 131 times as likely to end up there. Regarding the figure for women, Birnie asks (p.194):
can anyone seriously propose that native Indian women as a group are 131 times more criminal than white women? Perhaps some are 131 times more frustrated, more desperate, more angry, more frightened - for good reason. Sixty percent more Indian babies die in their first year than white babies, and the rate of suicide among native teenagers is six times the national rate...
Birnie appears to be very frustrated with the Parole Board's reaction to native offenders; she comments that natives were commonly denied parole because of a perceived lack of community support, particularly in small northern communities. However, she recognizes that that perception of a lack of support may not be accurate, that the Parole Board may just not understand what resources are available in those communities "for controlling, healing, or reconciling" (p.197). Birnie says that because of the
differences between the North and the South, "the solutions for the release of native offenders from the North lay in the North, under some form of 'native justice'", and "reluctantly" recommends that a separate native parole board be created (p.197). She also recommends the hiring of "trained professional natives" at all levels of the correctional system, and cultural sensitivity training for all employees who come into contact with
While the native parole board recommended by Birnie has not been established, and hiring and staff training policies have not been legally modified, Bill C-36 has recognized that native offenders often have some culturally significant special needs. The CSC overview states that:
agreements can be struck with Aboriginal groups and communities to provide programs and parole services directly to aboriginal offenders. The Service will establish and seek advice of the National Aboriginal Advisory Committee and other local aboriginal committees to ensure cultural sensitivity about provision of programs and services and the appropriate response to aboriginal offender needs.
One of the significant changes in the treatment of First Nations people by the correctional system brought about by Bill C-36 is the legal acknowledgement that aboriginal spiritual leaders have equal standing with other religious leaders attending at correctional institutions.
The creation of the position of Correctional Investigator by Bill C-36 arguably has the potential to be the most important and far-reaching aspect of the Bill. The Correctional Investigator "will investigate complaints made by offenders on all matters related to the operations and activities of the Correctional Service of Canada", including all aspects of parole. The Investigator has been given very broad powers to carry out that mandate, and may represent a new era of openness and accountability in the CSC's operations.
Despite criticisms of the parole system, it has a crucial role "as a major component of the reintegrative model of corrections" (Ekstedt and Griffiths,1988:281). Bill C-36 has not even come close to solving all of the problems in the system such as those pointed out by Birnie, but it has made some major improvements. The system will undoubtedly never satisfy everyone, but with the Correctional Investigator permitting easier access to the system for those who feel they have been treated in an unjust manner, the potential for further improvement has increased considerably.
Birnie, Lisa Hobbs. "A Rock and a Hard Place: Inside Canada's Parole Board". Toronto: Macmillan. 1990.
Cole, David P. and Allan Manson. "Release From Imprisonment. The Law of Sentencing, Parole and Judicial Review". Toronto: Carswell. 1990.
Correctional Service Canada. Corrections and Conditional Release Act (1992). Overview.
Ekstedt, John W. and Curt T. Griffiths. "Corrections in Canada. Policy and Practice. Second Edition". Toronto: Butterworths. 1988.
Generally, well written and researc hed. Improvement gained if you started your paper with an introduction that states purpose, what the paper is going to show & how.
See a pdf of the paper.