A Level Playing Field in Parole – Challenging the State’s Version of Facts

“The common law duty of procedural fairness does not, in my opinion, require the Parole Board to hold an oral hearing in every case where a determinate sentence prisoner resists recall, if he does not decline the offer of such a hearing. But I do not think the duty is as constricted as has hitherto been held and assumed. Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the Parole Board’s task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. The prisoner should have the benefits of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society” R (West) v Parole Board; R (Smith) v Parole Board (No 2) [2005] 1 All ER 755, [35] (Lord Bingham) .

Courts in various Common Law jurisdictions have applied a wide range of requirements of natural justice or procedural fairness to parole adjudication  – e.g. hearings, legal representation, seeing all evidence to be used by the adjudicators, making submissions.

To me, the essence of the fairness issue, from the prisoner’s perspective, which is most in need of discussion in Canada , is the prisoner’s right to challenge the case against him. Irrespective of the niceties of legislation and policies, can the prisoner, or their representative, effectively assist the adjudicator in establishing the real facts? To that end, can the prisoner, based on their own knowledge of the case, speak to the accuracy of their own version of events and, more importantly, to the credibility of CSC’s version and that of persons who feed information to CSC – police, community contacts, psychological experts etc?

Hearings impaired

The first issue here is the right to any hearing at all. It has long been recognized that in-person dialogue and argument is far more effective in assessing evidence than are written submissions. The flexibility provided by a hearing and the opportunity to assess participants’ demeanour, memory, perceptions and consistency make hearings the best way to deal with probative value and relevance, and especially with credibility.

I am not clear where the judicial line lies in determining whether a hearing is called for but I do know that two principles have been adopted by the Courts for the requirement to hold a hearing:

  • that the person under review stands to lose important rights related to their personally security or liberty
  • that complex facts and questions of credibility arise that can only be effectively resolved by a hearing

The right to a hearing in these circumstances, however, was recently removed in the case of  CSC revocation of various forms of release, a stunning step backwards for the Canadian parole system. Under new legislation that came into force concealed in 2012 “omnibus legislation”, s. 140 of the Corrections and Conditional Release Act was changed to remove the requirement for a hearing where the Parole Board is deciding whether to revoke a parole or statutory release.

The consequences of revocation are significant. Primarily, it requires the prisoner to “re-start” his parole eligibility at the point in the sentence where it was suspended. Thus, for example, if the prisoner has two years to serve until warrant expiry the new statutory release date will occur in 16 months. A significant loss of liberty without a doubt! Yet,even in the face of considerable case law that would presumably require a hearing, the legislation leaves it to the discretion of the Parole Board to decide if they will grant a hearing.

To date the Board has not appeared open to granting hearings in many cases. Even where credibility is a very significant facet of the prisoner’s case against revocation, and of CSC’s justifications for recommending revocation, the Board has shown a real propensity to accept CSC’s written representations “as cash” and to limit the prisoner to written submissions.

All of the advantages of being able to test the various versions of events are lost. Prisoners’ opportunity  to have their  truthfulness assessed in person, and to adjust their input in response to the Board’s comments in the normal give-and-take of the hearing are gone.

 Challenges under s.7 of the Charter of Rights and Freedom to the constitutionality of the legislation are underway. It is hoped that they will succeed. It is regrettable that many prisoners will needlessly spend time back in custody awaiting the results of the appeals.

The right to cross-examine

Where a hearing is permitted, it is true that the system permits the prisoner advanced knowledge of all records that the Board will consider and the right to promote their own case via their responses to Board questions and their (or their representative’s) submissions. It is also true that the Board itself can question the corrections staff who are making recommendations (“those who have dealt with[them]”)  and, presumably, this includes challenging their credibility. All this begs the question , however,  of how effectively a prisoner can challenge the credibility of correctional staff without being able to cross-examine them.

Currently the Parole Board styles its hearings as “inquisitorial” and not “adversarial”. Under this model the tribunal itself tests the law and the facts, based on its own questioning of participants and its review of their submissions. The Board decides what it believes relevant and whether it believes the prisoner’s and CSC’s information and testimony – and therefore whether to question a party on the accuracy, relevance and truthfulness of that testimony. While the prisoner, or even the CSC representative may have doubts about information from another party, they can only state these doubts to the Board and leave it to the Board to decide if and how they will ask further questions.

This creates huge problems. In effect it means that information will be directly tested  –  subjected to the tried-and-true methods of interrogation –  only if the Board is willing or able to do so.

As to willingness, the Board  often takes the approach of accepting “expert” information from CSC without great inquiry. Accordingly, the Board will not gainsay CSC’s information, or that of its sources, by questioning them very thoroughly. Moreover, it does not normally test the logic model or conclusions that CSC has used to make recommendations. Indeed the Board often uses the CSC position as the very basis for contesting the prisoner’s version.

As to ability, it is patent that the prisoner is better able to ask questions about the circumstances leading to suspension of a parole or statutory release than does the Board. This is because the prisoner was there and the Board was not.

In the event, the prisoner or his counsel  have no direct opportunity  to question  CSC representatives. They  also have no ability to call and question the CSC’s informants or the prisoner’s own supports (who can corroborate the prisoner’s version. Once again, expediency trumps effectiveness.

The right of a prisoner to cross-examine  seems to exist, ironically, only in revocation situations in other jurisdictions. In the U.S., for example, the potential loss of liberty involved in a revocation procedure brings to bear the 14th Amendment right to confront one’s accusers.

It will be difficult, considering the rather deferential attiude of our Courts toward statutory tribunals like the Parole Board, to bring cross-examination into the process – especially with the mind-set of the current Government.

That said, without the right, we will not be able to accurately assess facts and many parole decisions will simply be wrong.

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