Spanners in the Works – how CSC and the PBC delay, and deny, justice

The Corrections and Conditional Release Act and Regulations, as well as policies promulgated thereunder, contain numerous roadblocks to timely review of cases – conditional release reviews and complaints about illegal or unfair decisions (transfers, security classification, access to programs etc) For example:

  • The Correctional Service (CSC) has 60 days to answer a request for transfer to another institution (s, 15 of the Regulations http://laws-lois.justice.gc.ca/eng/regulations/sor-92-620/page-5.html#docCont)
  • where a prisoner is turned down for full parole or day parole, the Parole Board (PBC) can wait for two years to hear a new application for the same form of release. As well, a prisoner normally can’t make an application for full parole until one year after an adverse FP or DP decision ( ss.123(5) and (6) of the Act  http://laws-lois.justice.gc.ca/eng/acts/C-44.6/FullText.html#h-48
  • Commissioner’s Directive  081  on Offender Complaints and Grievances permits CSC 25 working days to reply to a written complaint or grievance within an institution (15 days if CSC considers the matter “priority”) and 80 days to respond to a grievance at the National Headquarters level ( 60 days for a priority). CSC can, and does, extend the period for replies pretty much whenever it wants to.

During these review periods, of course, all kinds of negatives can beset the prisoners involved. They can remain at an unjustified level of custody. They can have no visits, or restrictive visits. They may have completed all programs and be sitting “inside” waiting  for release. They can be deprived of health services or education. The list goes on.

Perhaps more vexing, however, are the delays that occur where there are no time frames set out in the legislation or policies.

For example:

– a prisoner can wait for months, often in segregation, for a decision on an involuntary transfer.

– restrictions on visits can be in force as long as prison management “reasonably believes” that security requires these.

– appeals of Parole Board decisions, to the PBC Appeals Division, can take 6 months for a reply ( about 4 is the norm) and in the meantime the prisoner may have come close to their Statutory Release Date in any case, making the whole appeal process a sham.

The poison cherry on the cake is access to the Courts. In most cases it is only by applying for Judicial Review of CSC or PBC decisions that a real solution can be reached.

At this level, two kinds of delays can occur.

First, CSC or the PBC may uphold a complaint, grievance or appeal but not in a way that helps the prisoner**. For example, National Headquarters will send a matter back to be reviewed by the official who made a mistake in the first place, thereby adding more time to administrative review of the matter and often preventing the prisoner from going to Court, where the case may be considered “premature” or moot.

Second, the process of judicial review is itself very time consuming. If all deadlines are respected (and not extended, as is often the case), it can take 160 days for a matter to be ready for a Federal Court hearing. After that it will be two-to-three months before the hearing and two-to-three months before the Judgment. About a year, with luck.

If there were really any interest in hastening the process, other approaches might help. god knows the need is there.

For one, there could be a values shift on the part of CSC and PBC decision-makers. Mediation at the ground level, based on respect for the law and, more important, its purposes by staff trained in this respect might prevent huge numbers of problems from becoming disputes – and clogging up the redress system.

I know that CSC has purported to take this kind of approach. “Dispute Resolution Officers” have been piloted in some institutions an training on the rule of law has been provided. Trouble is that the positive effects of this kind of approach are transitory unless CSC leadership commits itself to this approach. This seldom happens at the best of times and, under this Government, we are hardly there.

Another approach that I think would work, and which has been dismissed on more than one occasion, is a fair system of arbitration for cases that require such.

If truly independent persons were given the authority to conduct hearings where both sides (the prisoners and the keepers) could make their case on the merits, we might end up with some early, useful decisions. Decisions that might do some good to somebody. I believe we could find such adjudicators if we put our minds to it. After all, for example, the parties to labour relations have been doing it successfully for more than a hundred years.

Just think of what would happen if only a few hundred bad decisions were reversed at an early stage every year

  • more problems could be addressed
  • prisoners might spend less time at unnecessary security levels, where prospects for release are more remote and costs of superivision are higher
  • prisoners might be released sooner
  • prisoners could have greater access to families and community support and better skill sets to assist in release
  • people would spend less time in jail and would come back less often

When you consider the costs of imprisonment (both the supervisory and the social costs) effective dispute resolution makes a lot of sense.

I am not sanguine, but something has to be done. Great numbers of prisoners are suffering unfair repercussions from decisions that affect them in major ways – their liberty, the safety, their relations with families, their opportunities  for release and successful reintegration. Failure to address these problems makes us all less safe and offends against the rule of law.

Again, by the time the Court speaks, the damage may have long since been done.

……………………………………………………..

 ** an irksome example:

I know of a case where a fellow had his parole suspended because he was alleged to have engaged in substance abuse at a Halfway House. The evidence was very “he said – she said” and  the matter cried out for a hearing so that credibility and reliability of allegations could be assessed properly.

Due to recent legislative changes,a hearing was not required and so the Board had to be convinced to use its discretion and hold a hearing. Written representations on the merits of the case were also filed in case the Board did not agree to a hearing. It did not do so and the fellow was revoked by written decision of a single PBC member.

There was an appeal, principally on the grounds that a hearing was needed. The Appeal division upheld the appeal, but on the basis of the initial decision-maker’s apparent failure to review the prisoner’s written arguments – not on the issue of whether a hearing was required.

Now the matter is back with a single PBC member for another written decision. This should take several weeks and, if he revokes, there will be another appeal period. In the meantime he is being released in about 8 weeks on statutory release.

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