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Brief on Bill C-36, Corrections and Conditional Release Act: Submitted to the Standing Committee on Justice and the Solicitor General

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The British Columbia Civil Liberties Association (BCCLA) receives periodic complaints from inmates who are incarcerated in federal penitentiaries located in British Columbia. We find that a number of the complaints relate clearly to provisions in the proposed legislation; others point to matters that deserve attention in drafting the final version of the bill.

Our major concerns are the following:

  1. Detention and due process
    In attempting to fulfil the two paramount criteria of ensuring public safety and achieving cost-efficiency, the legislation favours a policy shift toward a two tier system of resource distribution. Offenders who are regarded as a threat to public safety will face continued incarceration; lesser-risk offenders will be supervised in the community for much of their sentence under an expanded “community corrections” mandate. Parole Boards may conduct detention hearings to decide whether to retain a prisoner in custody beyond the required release date of Mandatory Supervision, or statutory release, up to the point of warrant expiry. Prisoners deemed to be violent, in accordance with the expanded Schedule I criteria, will not be granted conditional release.

    Our concern is whether the assessment of “violence” is not too discretionary; indeed, whether prisoners can be justifiably labelled as violent after the fact and without new charges being laid. There is a strong possibility that the number of detentions will wax and wane in response to degrees of public stridency about crime. We have already heard from some prisoners and prison rights advocates that, whereas only a few Mandatory Supervision (MS) prisoners were “gated” previously, now it is the case that fewer and fewer are released from prison at the two-thirds mark of their sentence. While inmate fears about this trend may be exaggerated, there have been over 800 detention orders issued since the passage of Bill C-67, so prisoners have some basis for their perception that they are “lucky if they don’t get a dangerous offender label”.

    The concern of the BCCLA, therefore, is whether the detention process fails to provide the necessary due process safeguards, resulting in unfair denials of statutory release and, ultimately, violation of section 9 of the Charter which declares that: “Everyone has the right not to be arbitrarily detained or imprisoned”. While the “New Correctional Strategy” is mindful of the need to observe Charter stipulations, the possibility of violating section 9 seems imminent.

    We recognize that detention criteria cannot be overly rigorous, allowing no discretion whatsoever, but since only one party exercises all discretion, that discretion must be bounded by minute stipulations wherever possible. We are troubled, therefore, by the way in which the criteria of section 132 of the bill can be applied in any conceivable way to the past, current and anticipated future states of the inmate’s behaviour. In this regard, we are not reassured by the knowledge that prisons are adding to their holding capacities, that the number of inmate complaints has doubled in the past year, and that increased detention orders are likely to produce further overcrowding and resource scarcities, leading to more complaints and institutional unrest.

    Drug offences and detention
    We question the rationale for conflating offenders convicted of “violent” offences with “drug offenders”, thus increasing the exposure of the latter group to the imposition of detention orders. While there are certainly concerns expressed by the Canadian public over the dangers of drug use transmission (which we, of course, share), we do not see a ringing public mandate for addressing the problem in this way, especially when “serious drug offences” would include cultivation, minor trafficking, and the presumed likelihood of further drug offences after release.

    In all probability, the application of detention orders to this group will swell inmate populations far beyond current figures. Certainly beyond the Commissioner’s very conservative estimate of 160 additional federal prisoners over the next six years, as the residue of the trade-off between judicial determination and accelerated review, leading to new prison construction and massive, unaffordable costs. In fact, there is no evidence to suggest that this approach will result in anything but continued and more sophisticated illegal drug activity once such prisoners are finally discharged.

    Again, this zero-tolerance scheme does not strike us as one that is demanded by the Canadian public. We can foresee only a consequent increase in detention orders that would result in a consequent expansion of incarceration facilities. The nature and scope of the drug problem surely requires solutions that do not widen the net of criminalization.

  2. Openness, fairness, and accountability of detention hearings
    The detention hearings occupy what seems to be an interstitial and perhaps ambiguous zone; i.e., internal but not disciplinary. The fact that they are not open to the public, and that they allow more than one assistant to the detainee only at the pleasure of the Board, does raise the spectre of a kangaroo court.

    The complete elimination of community board members (currently representing 44 out of 145 members of the National Parole Board) from both parole and detention hearings, constitutes a loss of potentially valuable non-institutional perspective, and the reasons for their elimination on training and cost grounds seem trivial and specious. Their abolishment clearly goes against the professed aim of promoting openness and accountability by encouraging citizen involvement in the operation of penitentiaries and parole offices.

    Barriers to visiting inmates
    The Corrections Service also professes to encourage ties between offenders and the community through the maintenance and development of contacts with friends, family, etc. One obvious method of encouraging such contacts is through facilitating visits to inmates at the institutions in which they are held.

    At the BCCLA, we have received complaints that the number and nature of questions asked on the Visiting Application and Information Form (in use nationally) are unnecessary and intrusive, and tend to discourage potential visitors—e.g., items ask for license plate number, name of employers, marital status, spouse’s name, and female visitor’s maiden name. We have reviewed the form, agreed with the objections raised by complainants, and relayed our concerns to the Privacy Commissioner and to the Deputy Regional Commissioner of Corrections, Pacific Region.

    The Privacy Commissioner has advised us that there is no invasion of privacy suggested on the form that is not justifiable. At the BCCLA we are disappointed with this response to the problem, regarding it as insensitive and inadequate. On March 12th, 1992, the Deputy Regional Commission (Pacific) finally responded to our query, advising us that a national review and detailed revision of the form will be undertaken, leading to expected changes that will address our concerns. We urge the Standing Committee to examine this issue in the wider context and intent of the new legislation.

    Empowering inmate committees
    Bill C-36 purports to encourage inmate committees and organizations to contribute to decisions concerning the inmate population as a whole, and to do so on a continuing basis. However, we have found that inmate committees almost throughout the Canadian penitentiary system are constructed so that inmate representatives serve only a short six month tenure on these committees. This appears to ensure both the instability of such committees, even where members can be re-elected, and the likelihood of only fleeting interest in the committees’ agendas by the inmate representatives themselves.

    We cannot say whether this is a deliberate administrative strategy, but the consequences are predictable, and we are disturbed by the hypocrisy implicit in this structuring of what ought to be a legitimate avenue for the expression of inmate grievances and/or dissent. A minimum two year term on such committees, with rotation of a minority of members within that period, would be more appropriate and would enable some genuine input of the inmate constituency into the planning and daily administration of the institution.

    Community programs and offender rehabilitationWe strongly endorse the rehabilitative emphasis on community programming, in contrast to the ultimately short-sighted reliance upon detention, and we would like to see such programming extended to high-risk offenders as well, wherever possible and within the range of community tolerance. The dangers that befall this prospect, however, are at least twofold:

    1. While community corrections is a good thing, the reality must match the rhetoric, lest frustrations erupt within both institutions and the community. Although the Treasury Board has granted monetary support to community programming, the experience continues to be one of prolonged delays in implementing programs, and disruptive short term funding of programs. These delays and shortages in turn affect preparation for conditional release consideration, and increase staff (as well as inmate) frustration. The most recent report of the Correctional Investigator underscores these problems and related complaints.
    2. A second problematic area regarding correctional programming occurs within the institutional setting, where programming may be conducted in a didactic and authoritarian manner. Prisoners may be made to participate in pre-specified programs that offer little flexibility or range of options, even when there are reasonable grounds for declining the recommended resource. Knowing the bureaucratic labyrinth that institutional programming can become, it is quite possible that classification and programming will often be more a product of expeditious match-ups and administrative priorities, than authentic individual need.

    Problems of this nature have already occurred in various penal institutions. We append to this brief a BCCLA report on the experience of the sex offender program at Mission Institution as an example of some of the “treatment” tyrannies that can evolve if there are insufficient safeguards and opportunities for inmate participation in program planning. These caveats clearly apply to section 12 of the Charter, which declares that “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment”.

    Mandatory urine testing for drugs and alcohol of prisoners and parolees
    From time to time, the BCCLA receives complaints regarding urinalysis procedures of the following nature: urine testing conducted in the institutions is intrusive, unreliable, and coercive; urine testing of parolees is conducted without warrant; prisoners and parolees are required to undergo urinalysis at the discretion of the authorities, but cannot demand a urinalysis in their own defense.

    The situation regarding urine testing of those held in custody is quite problematic. Court challenges in recent years (Jean-Pierre Dion v. the Attorney General of Canada, Quebec Superior Court, 1986; Jackson v. Disciplinary Tribunal, Joyceville Penitentiary, Ontario, Federal Court of Canada, 1990) have ruled against the legality of sections of the Penitentiary Service Regulations that were introduced in 1985 in an attempt to check drug use in penitentiaries by allowing compulsory urinalysis for drug and alcohol detection. Requiring urine samples from prisoners was ruled to be in violation of Charter provisions against unreasonable search and seizure (section 8) and breach of liberty and security of person (section 7), where “reasonable and probable” grounds for imposing the procedure could not be presented and where practices contrary to Sections 7 and 8 of the Charter could not be justified as a “reasonable” limit pursuant to Section 1 of the Charter. The Courts, therefore, have found section 41.1 of the federal Penitentiary Service Regulations contrary to the Charter for failing to specify standards, criteria, or circumstances governing the obligation to provide a urine sample; but the Courts did not specify which criteria, standards or circumstances might meet the requirements of the Charter, thus leaving the door open to, for example, random testing procedures.

    The new legislation under Bill C-36 addresses the Court decisions by providing regulative procedures for urine testing in the penitentiaries regulations that include discretion-structuring factors, which presumably enable compulsory urine testing to withstand constitutional scrutiny. While these new regulations potentially circumvent the arbitrariness involved in compulsory testing, the BCCLA is unable to support the random selection urinalysis program under section 54b of the new Act. Random selection testing is clearly invasive, arbitrary, and coercive, and poses an unjustifiable breach of Charter provisions. “Security of the person” and “freedom from search” require that searches be done only when there are reasonable grounds for believing that an offence has been committed. Random testing plainly violates this basic assumption.

    As for compulsory testing of parolees and inmates released on mandatory supervision, this is problematic when a “special condition” requiring urinalysis is not inscribed in the Parole Certificate. In cases where no such special condition exists requiring submission to urine testing, the parole officer can now give the parolee a letter of instruction requesting urinalysis. The concerns of the BCCLA about this process are the following: that the parolee have the right to request re-examination of the paper decision to add/delete conditions to the parole certificate; that this re-examination take the form of a hearing, and that the parolee be provided with an attorney at any such appeal hearing; that since testing can be inconclusive and even inaccurate, that parolees (as well as inmates) be able to request supervised urinalysis, initially at their own expense; that the results of such testing must be taken into consideration by the Board or other relevant institutional authorities, and that parolees/inmates will be reimbursed urinalysis costs if their appeal against the amendment to the parole certificate, or to an institutional disciplinary charge, is won; and that the parolee can be returned to custody only after the appeal is lost and the parolee refuses to comply with the amended condition.

  3. Accountability of the Correctional System to the Recommendations of the Correctional Investigator
    Finally, we endorse the concept of a genuinely independent Correctional Investigator who reports directly to Parliament rather than through the Solicitor General, and whose office is invested with reasonable authority to press its recommendations on the correctional system. While such direct reporting is unorthodox parliamentary procedure, it seems essential to undertake in this instance since it would go far to reinforce the impression of an “independent” investigator, and to heighten the credibility of that office amongst prisoners throughout the penitentiary system. This is crucial if inmates are to confide in the Correctional Investigator and seek institutional means of redress.

    While the proposed legislation would require the Solicitor General to table before Parliament all the submitted reports of the Correctional Investigator, we believe that, short of attaining a manifest independent status, the office of the Correctional Investigator will continue to be regarded by most inmates and prisoners’ rights advocates as a largely symbolic means of palliating inmates’ grievances.

    We trust that the views expressed in this brief will be accorded the utmost consideration by the honourable members of the Standing Committee, and that our experience and remarks may serve to help ensure that, indeed:

    The system exists to produce the ideal of justice, not breed injustice, contempt, bitterness, and reactive violence. (“A Framework for Sentencing, Corrections, and Conditional Release”, Directions for Reform, 1990, Government of Canada, p. 29).

Sincerely, and on behalf of the B.C. Civil Liberties Association,

R.S. Ratner, Chair, BCCLA Prisoners’ Rights Committee Associate, March 1992

Appendix

Report on the Mission Institution Sex Offenders program (BCCLA, 1991)

In the spring of 1991 the BCCLA received several complaints regarding the treatment of sex offenders in Mission Institution. The gist of the complaints was that the therapy was both controversial and allegedly invasive and brutal; and that it involved re-housing all sex offenders and thus making the nature of their offenses known to the general prison population, with obvious potential repercussions. In August, R.S. Ratner, Chair of the BCCLA Prisoners’ Rights Committee, and Policy Director Margaret Johnson submitted the following report

The BCCLA has now completed its investigation of the complaints made by inmates at the Oak Inn Unit of Mission Institution. This letter presents our summary findings and recommendations. We want to preface our observations by expressing our thanks to Warden R.B. Brock and his staff for making it possible for us to undertake and complete this inquiry. We also want to emphasize our sympathetic interest in their objective of providing treatment for sex offenders, a needy but often inaccessible group of inmates. Our purpose is not to engage in an explicit evaluation of those treatment efforts, but to examine whether such efforts infringe on those basic rights and liberties to which even imprisoned sex offenders are entitled in a democratic society.

The findings of our investigation are based on: letters and telephone calls received from inmates at the Oak Inn Unit, including some of their friends and relatives; a full day visit to the Institution which included meetings with members of the program staff, the Inmate Committee, residents of the Oak Inn Unit, and the Deputy Warden; and, a follow-up half day meeting with the program Director and the Deputy Warden. We believe that we have learned enough to form a reliable impression of the difficulties that have given rise to the inmates’ grievances. Rather than restate all of the individual complaints, we think it would be more helpful to underscore our concerns with respect to three highly problematic areas that seem to encompass most, if not all, of the issues relevant to our role in pursuing this investigation: the “coercive opportunity” model; the broad dynamic of the therapeutic process; and the question of accountability.

While we did not find that the situation at Oak Inn quite evinces “remnants of the Gulag”, as Warden Brock ironically put it in a letter to us, the reported incidents clearly warranted our scrutiny. We hope, therefore, that Corrections Services Canada (CSC) staff will regard our intervention in the spirit in which we intend it—as constructive input.

We appreciate the unavoidable contradictions inherent in the concept of a “coercive opportunities” model, particularly when applied to a group of offenders who are not disposed to acknowledge their problem, much less take steps to resolve it. The strong emphasis given in the CSC Mission Statement to provide treatment to offenders, the escalating intake costs to cover the increasing numbers of sex offenders who are now being institutionalised, and the public demand for long-term incarceration in the absence of effective treatment, place considerable pressure on correctional administrators to persuade or compel sex offenders to participate in treatment programs. We do not question this objective. Our principal concern is over whether the participation of inmates in such programs is consensual and informed.

Given the widely publicized and moral heinousness of their crimes, sex offenders are stigmatized not only by the public, but sometimes by correctional personnel, and frequently by other prisoners. It is crucial, therefore, that democratic safeguards not be abandoned, and that this category of prisoners not be denied essential and humanizing rights, such as those laid out in the Mission Statement, the Charter, and the Privacy Act. Our worry is that, under the guidepost of the coercive opportunities model, correctional administrators and programrs will find it difficult to resist the temptation to become excessively and unjustifiably coercive, obliterating the goals of otherwise meritorious programs.

Unfortunately, we do find evidence of such excessive coercion in the Oak Inn Unit sex offenders program. Certainly we do not believe that these excesses are intended as such, but it is clear that they are experienced as such, with the effect that they nullify the potential benefits of the program for the majority of participants.

It is not clear to many inmates, for example, why they should be required to reside in Oak Inn in order to participate in the program, especially in view of the fact that Mission Institution ordinarily prides itself on being an integrated population prison. Staff members offer a rationale for why all sex offenders need to be located in a single unit, but inmates share plausible reservations about this criterion, particularly since known sex offenders have been spread throughout the institution until now without disruptive consequences.

Their argument that residential separation translates into de facto segregation seems to reflect the facts. Even staff members acknowledge that retaining uncooperative inmates in the Oak Inn Unit has a negative effect on those who do participate in the program. So placing recalcitrants in other units would likely assist, rather than impede, development of the program. A relaxation of policy in this area would probably bring down the level of tension at the Unit, as well as further the general welfare of sex offenders throughout the Institution.

Related to this entry question is the matter of whether inmates bound for Oak Inn have adequate foreknowledge of the program. There is a definite unevenness amongst inmates about this, which then becomes a factor in their ongoing perceptions of the program, and their receptivity to it. We are aware that staffs have been developing uniform orientation programs (kits, videotapes, etc.), and we believe that this should help to reduce some of the initial fears and resistances. But we would want every assurance that a program which is so psychologically demanding and invasive provide the dearest possible advance indications of what it is about, and that agreement to participate require the inmate’s written as well as verbal consent.

Related to this, inmates who refuse to participate in the program should experience no penalties other than the pre-stipulated loss of conditional release opportunities and the prospect of detention when statutory release is due. Sending unwilling inmates to the hole, refusing transfers to other institutions, or threatening loss of jobs, lowered pay scales, and cancellation of educational programs, are excessively coercive responses that undermine rather than enhance the “opportunity” aspect of the program. Similarly, participants should be permitted to withdraw from the program after due consideration, and, if they wish, reside elsewhere in the Institution or apply for a transfer. The prison institution, in general, is the restraint to which they are justifiably subject. Confining them within programs in which they do not wish to participate is what we view as excessive coercion and plainly contravenes the spirit, if not the letter, of the Mission Statement. If inmates choose to forego conditional release through their refusal to participate in such programs, the known consequences are theirs to bear.

Regarding the therapeutic process itself, we have a number of concerns in this area that have not been entirely laid to rest in our discussion with the program Director. We must wonder about the possibilities of deriving benefit from a program in which: (1) “confessions” of allegedly criminal behaviour are required as a mark of progress in the group (including admission of guilt over stayed convictions); (2) individual files containing information possibly undisclosed to the inmate are read openly to the group; (3) vulnerable prisoners are regularly intimidated by tactics loosely justified as confrontational; (4)inmates are portrayed mechanically as adopting a victim stance; and (5) inmate objections to the process are nullified under the rubric of denial, reducing any and all complaints to pure symptoms.

Of course, we understand that attempting therapy with any group of offenders who habitually resist imputations of guilt and responsibility is difficult and necessarily aggressive, but if the line between what is necessary and what is excessive is blurred by those who offer the program, what level of discriminatory function can be expected amongst those who are required to absorb it? We recognize that knowing where to draw the line is difficult, but we doubt that this issue receives attention sufficient to allow participants in the program to reasonably defend or question their own reticence.

In minimizing the highly spontaneous and individualistic features of the therapeutic method, the program Director and Deputy Warden show an ingenuous reliance on empirical studies and the literature arguing that the approach is guided by the findings, and not by clinical wisdom. We find it difficult to place this level of confidence in the alleged scientific underpinnings of the program, especially in view of the high number of drop-outs, the intense expressions of inmate dissatisfaction, the general intractability of serious sex offenders to therapy, the acknowledged ability of sex offenders to suppress arousal and fake good in lab testing, and the sheer unreliability of plethismographic testing procedures and scores in the artificiality of the lab environment. If it is true that sex offenders are not curable, only manageable, and that treatment is necessarily interminable, as the program staff and most other professionals in this field maintain, then this conclusion should attest to the primitive state of the therapy and belie claims to its validity.

Again, we do not mean to belittle efforts to devise a program for these offenders; we are simply noting that inmates are justifiably suspicious of the circle into which they have been drawn, especially when they observe that the much-touted dialogical participatory mode is not sustained. The circle is, in actuality, closed, when “bad marks” are recorded on the files of inmates who do not participate in the prescribed way, and when the Parole Board follows through by denying conditional release. In sum, there is a pressing need to think, not only about how program staff may aid inmates, but how they may be protected from the theoretical zealousness of staff determined to push through a particular conception.

The above concerns lead into the question of accountability. Inmates in the program are continually reminded that they must accept responsibility for their deviant and criminal actions—past, present, and future—and they are aware that refusal to do so can have drastic consequences for their release prospects. Staff, on the other hand, are accountable in a largely academic sense. Outside the group, they may have to answer to professional associations; inside the group they are expected to heed the responses of inmates in the program, but it is evident that failure or reluctance to act on stated concerns produces no sanctionable result. Starkly asymmetrical power relations within this milieu give credence to the inmates’ interpretation that the program Director is unaccountable and “runs the show”. Thus, superficial compliance or mute withdrawal become typical inmate survival patterns in this setting, since verbalized resistance is futile, and appeals to Case Management or Living Unit Officers are viewed as “collusive”.

While we realize that sex offenders demonstrate a proclivity to lie, we are also concerned about staff members’ claims regarding the truth. What becomes of accountability if one person is always right and the other is always wrong, or, more to the point, if only one (and always the same one) decides who is right and who is wrong? From the complaints that we have received, it is apparent that a more reciprocal social order in the program must be created, lest the excessively coercive aspects of the process thwart the attainment of therapeutic goals and erode fundamental rights.

Beyond this, we have been informed, of course, that program staff are accountable to higher-ups at the Institution and to contracted program assessors outside the institutional milieu. But we observe that prison authorities at Mission are vigorously committed to a particular delivery of the sex offender program. Criticisms of the program are not readily countenanced, and, as noted above, program terminology is utilized to discount the possible validity of inmate objections. It is difficult to imagine how accountability can thrive in the midst of all this operative rationalization. Moreover, external reviews of the program by other CSC employees or by professionals who depend on contractual work with CSC for their livelihood do not strike us as impartially motivated. The program may be an excellent one, but who can sincerely believe so if the only ones saying it are those who have a vested interest in a positive judgment?

In sum, both within the group and in the outside evaluations of the program, accountability procedures must be less controlled by those who offer the program, and more determined by direct program consumers and by neutral assessors. Short of this, inmates could sensibly conclude that the “closed circle” is a fait accompli.

We end this report with some brief recommendations, which, if adopted in earnest, should go a long way toward decreasing tensions and creating a more receptive climate for the program at Oak Inn. In offering these suggestions, we wish it to be understood by CSC that we do not presume to question the basic goals of the program or, in any way, to diminish the staff. On the contrary, we hail their efforts to bring hope for personal change to individuals who are thought by so many to have such poor prospects for rehabilitation. Our hope is that they will read this report with an open mind. That they will respect our efforts to represent a heavily stigmatized, but still very human, constituency, and that they will appreciate our commitment to uphold civil liberties principles even (or rather, especially) where they may seem less than organizationally expedient. We hope, too, that CSC will see fit to implement these recommendations with all due speed, and we look forward to their response to this report. We trust that they will advise the Inmate Committee and the inmates of the Oak Inn Unit of our findings.

Recommendations

  1. That in view of the highly tentative and uncertain findings of sex offender therapy, the program at Mission institution be described as “innovative”, and inmates entering this program be accorded the protections normally extended to experimental subjects. Minimally, this should require reasonably adequate knowledge of the nature and duration of the program (especially of its aversive conditioning treatment focus), foreknowledge of the residency requirements and of staff expectations of inmates (including the extent of criminal history disclosures), prior agreement to allow disclosure of known information contained in the inmate’s file, written consent from all participants, and subjects’ right to negotiate withdrawal from the program without added penalty.
  2. That residency requirements for participation in the program be made more flexible so that inmates who do not reside at the Oak Inn Unit can participate in the program, and so that inmates who decline to participate in the program or who choose to withdraw from it, can transfer out of the Oak Inn Unit to other wings of the institution, or negotiate transfer to other institutions when feasible.
  3. That studied attempts be made by staff to minimize the coercive aspects of the therapy so that the “voluntary” nature of the program is enhanced, inmates are able to criticize the program and the actions of staff without fear of reprisal, and inmates are free to withdraw from the program without added penalty.
  4. That internal(staff/inmate) and external (staff/extra-institutional) accountability procedures be developed to empower the dialogical features of the therapy, and to enable unbiased professional monitoring and evaluation of the program on a periodic basis. Reports of these assessments should go to all staff and inmate participants in the program and become an educative component in the treatment process