The Justice System and Aboriginal People
The Aboriginal Justice Implementation Commission
Canadas parole system is based on the premise that most offenders should be returned to the community under a "conditional" release, prior to the end of their sentence. The intent is to support their reintegration into society on a gradual basis, with support from parole staff and from volunteers. We agree with this approach and believe that offenders do stand a better chance of being effectively reintegrated into the community if they are assisted following their release. However, of all the opportunities for discretionary decision making in the justice system, few are as controversial as the decision to grant or deny parole. The parole system has suffered from an inability to develop fair and effective release criteria, and to apply these criteria in a consistent fashion.
While the premise on which the parole system is based may well be sound, many of its policies and procedures do not serve Aboriginal people well. In 1988 the Task Force on Aboriginal Peoples in Federal Corrections, established by the Solicitor General of Canada, summed up the problem:
The failure of the parole system to serve Aboriginal persons adequately was confirmed in presentations made to our Inquiry. The Prairie regional manager of conditional release programs for the parole board told us that the approval rate for Aboriginal inmates applying for full parole was 15% to 18% lower than for non-Aboriginal inmates. We were also informed that 26.8% of Aboriginal inmates, as compared to 10.8% of non-Aboriginal inmates, have their conditional releases revoked. With respect to those released on mandatory supervision, the paroles of 22.1% of Aboriginal inmates and 11% of non-Aboriginal inmates were revoked. Forty-four per cent of Aboriginal inmates on full parole had their paroles revoked. The corresponding figure for non-Aboriginal inmates was 24.8%. In order to examine why these significant differences exist between Aboriginal and non-Aboriginal persons, we must first review the evolution and current state of Canadas parole system. TOP
A number of reports cite the complex and often contradictory objectives which have developed over the last 120 years within Canadas correctional system and, in particular, in the parole system.2
Under the Penitentiary Act of 1868, inmates were allowed up to five days per month of sentence "remission" (sentence reduction) for good behaviour. The only other way in which early release might occur was through the rarely used Royal Prerogative of Mercy, which could be exercised by the Governor General. With minor changes to the rate at which remission was earned, this practice remained in force until the introduction of mandatory supervision in 1970. Inmates who earned time off their sentence were released unconditionally without supervision when their accumulated earned remission equalled the balance of their remaining sentence.
The evolution towards our current parole system began in 1899, with the introduction of conditional release, or parole, through passage of the Ticket of Leave Act. At first, decisions to grant parole under this Act were made by the Minister of Justice, but by 1913 a "Remission Service" was developing in the Department of Justice. Initially, this service was administered by the RCMP and the Salvation Army. The Archambault Report of 1936 was harshly critical of the Remission Service, and recommended that parole officers be appointed to make the system more impartial and that efforts be more focussed towards rehabilitation.3 This recommendation to appoint parole officers was not to be implemented for almost 30 years.
In the post-war period, a number of community-based agencies such as the John Howard and Elizabeth Fry societies began to assist traditional agencies such as the Salvation Army in the reintegration of offenders. The 1956 Fauteux Report led to the replacement of the Ticket of Leave Act with the Parole Act in 1958, bringing into existence the National Parole Board (NPB). This resulted in there being provisions in the Parole Act and the Penitentiaries Act which allowed inmates to be released prior to the end of their sentence. The two sets of provisions operated independently; release on parole did not affect previously earned remission entitlement. In 1961, also as a result of the Fauteux Report, the remission provisions of the Penitentiary Act were divided into two categories. The new provisions required that upon imprisonment, one-quarter of the sentence was to be credited to remission, but this could be lost for poor behaviour while in jail. A further amount of three days per month for good behaviour could be "earned" while in prison. Once earned, this time could not be revoked. Whether or not the prisoner applied for parole, he or she was released when accumulated remission was equal to the balance of the remaining sentence. There was no community supervision imposed on such releases.4
As the various supervised conditional release programs developed, they came into conflict with the concept of remission, where no supervision was provided after release into the community. Inmates who were well behaved, but considered poor parole risks, were being released without condition, while less well-behaved inmates who were good risks received supervision, serving their remaining sentences in the community. This set the stage for the introduction of what is now called mandatory supervision.
Beginning in 1964, the National Parole Board began to offer an incentive to prisoners who were approaching release under earned remission. The board offered to advance the date of release by one month for every year served, on condition that the inmate remain under supervision in the community for the balance of his or her sentence. By accepting this inducement, however, inmates lost their right to statutory remission.
The 1969 Ouimet Report noted that only 60% of prisoners were accepting this inducement and applying for parole, because they preferred to await their earned remission date, thereby eliminating the requirement for supervision.5 Clearly, the incentive of earlier release, which meant giving up the right to earned remission, was not working.
The changes to the Parole Act in 1970 formalized the practice of mandatory supervision, even for those who had earned remission under the Penitentiary Act. All inmates now were to be released after two-thirds of their sentence had been served. However, they could be returned to prison immediately for any violation of parole conditions. All releases became conditional; those inmates with good behaviour no longer earned "time off" their sentence, but only the right to serve their remission time in the community. If they broke any condition of parole, no matter how minor, they stood to lose all their earned remission time.
With the passage of Bills C-67 and C-68 into law in 1986, further strictures were placed on the concept of remission. Under these revisions to the Parole Act, where the board feels that the release might result in serious harm to any person, the NPB can refuse a prisoner early release based upon either statutory remission or earned remission. For affected inmates, the correctional system has reverted to the practices in place in the mid-19th century. Once again, some prisoners are serving their full sentence in prison and are then being released without any access to social reintegration processes or programs, support or supervision. D.B. MacLean and R.S. Ratner state that:
The incentive to earn remission has been diminished substantially by the ease with which mandatory parole can be revoked. The earning of remission is no longer time off a sentence, but only the permission to spend that time in the community, under supervision. In the case of offenders who are deemed violent or dangerous, there is no "earned remission," no matter what their behaviour has been while in prison. This is the overall context within which the parole system now deals with all offenders.
We believe that the issues raised by the confusion inherent in the current program, between earned remission and conditional release, must be addressed and resolved for the longer term, effective operation of the NPB. We also believe that Bills C-67 and C-68 make the system more punitive and repressive, and, therefore, less fair and effective. Our greatest concern is that Aboriginal people, because of their socio-economic status, are not treated in the same way as non-Aboriginal people.
We recommend that:
Canadas present parole system is administered by the National Parole Board, a federal government agency, and by provincial parole boards, where they exist. The national Parole Act has jurisdiction over any federal offence for which sentencing takes place. Although provincial boards have been established in British Columbia, Ontario and Quebec, there has never been a provincial parole board in Manitoba.
Parole is supervised by parole officers employed by the federal Correctional Services of Canada. There are 27 parole officers working in the province, located in Winnipeg, Thompson and Brandon. Two of the 27 are Aboriginal. Some parole supervision is contracted to outside organizations such as Native Clan and the Salvation Army. Service is also provided by volunteer parole officers in some northern communities.
The current objectives of conditional release orders are to assist offenders in fitting back into society and to protect society from the possibility of an offender getting into further trouble with the law. The boards mission statement indicates that:
The board has 34 full-time members who may be appointed for up to 10 years. In addition, any number of temporary members may be appointed. These temporary members are appointed for one-year terms and sit at the direction of the board. According to the Act, those named are to be
The major responsibility of the board is to assess offenders readiness for conditional release and to make release decisions. Section 16 of the Act allows the board to grant parole, subject to any terms or conditions it considers desirable. The board, however, is required by the Act (s. 16(1)) to be mindful of a number of release criteria. These may be summarized as follows:
We agree with all these objectives. The problem, as will be seen, is in their application to Aboriginal inmates. TOP
According to documentation issued by the National Parole Board, there are four types of conditional release: temporary absence, day parole, full parole and mandatory supervision.9
This type of absence may be escorted or unescorted. Temporary releases are granted for medical or humanitarian reasons, or to provide inmates with an opportunity to attend appropriate programs in the community. Unescorted temporary absences from federal maximum and medium security institutions are limited to 48 hours per month. The corresponding limit for minimum security institutions is 72 hours per month. Wardens have the right to grant temporary absences to inmates serving less than five years, while the board deals with those serving longer sentences. Provincial institutions have their own temporary absence policies and programs.
Day parole provides selected offenders with an opportunity to participate in approved community-based activities. It may be granted to complete education or training, to take part in community service projects or seasonal work such as forestry or harvesting, or to maintain or strengthen family ties. Day parole may be granted for a maximum of 12 months, but the usual term is four to six months. Offenders usually must return to the institution every night. Day parole decisions are made by the board.
Offenders may be eligible for full parole after serving as little as the first third of their sentence. Offenders sentenced to lengthy periods of incarceration, subject to certain exceptions, may be eligible for parole after serving seven years. If granted full parole, offenders will serve the balance of their sentence under supervision in the community. It is worth noting that persons serving lifetime sentences, if paroled, remain on parole for the remainder of their lives.
Time off for good behaviour, or earned remission, is credited to the offender when the offender is sentenced at the rate of one day of remission for every two days served. Remission time may be lost for unacceptable behaviour while in prison. The effect of this remission permits offenders to serve as much as the last third of their sentence under supervision in the community. Offenders are entitled to be released on mandatory supervision without going through the normal parole process. That is, they must be released when their earned remission time is equal to the balance of their outstanding sentence, unless they are deemed to be violent offenders under the provisions of the Parole Act which were passed in 1986.
The parole board is responsible for making conditional release decisions for over 12,900 federal inmates, as well as for provincial inmates in provinces like Manitoba, where there is no provincial parole board. Statistics supplied by the Prairie Regional Office of the Correctional Service indicate that at the end of March 1991, there were some 1,692 offenders participating in conditional release programs in the three prairie provinces. This number includes 535 on mandatory supervision, 303 on day parole and 692 on full parole. Temporary absences, while technically a form of conditional release, are not counted in this total, because most are under the discretionary control of penitentiary wardens. In addition, there are about 235 inmates from provincial institutions on full parole, and 27 inmates on day parole.
The prison term is deemed to continue while the offender is participating in any conditional release program in the community. Parole and temporary absences may be revoked at any time for the breach of a condition, to prevent the breach of a condition or to protect society. If parole is revoked, all earned remission time is lost and then is recalculated from the date of re-entering prison.
A study by the Canadian Centre for Justice Statistics indicates that the rate of utilization of these various conditional release programs in the Prairie region has been fairly stable, although early release appears to be in decline, over the past five years. During 198889 only 19% of the releases of federal inmates were on full parole (after completing one-third of their sentence), while 36% of provincial offender releases were on full parole. Compared to the figures for 198384, this represented a 5% decrease for federal inmates and an 8% decrease for provincial inmates.10 This is a troubling trend, especially since the data suggest that in both cases, sentence expiry and mandatory parole have increased as a proportion of all parole. TOP
Once a sentence has been imposed by the courts and the time for appeal has expired, the inmates future is in the hands of the correctional authorities and the parole board. The parole board relies extensively on written documentation in making release decisions. Reports on the home and community environment are prepared. Reports also assess the conduct and training of the inmate while in the institution. Furthermore, consideration is given to the kind of accommodation, employment and treatment that will be available to the inmate upon release.
In the case of inmates of federal institutions, the parole board holds a hearing to assess the readiness of each inmate for parole after one-sixth of his or her sentence has been served, or, in the case of sentences of less than three years, after one year. Day parole or temporary absences may begin to be used after this time. Each case is again reviewed after one-third of a sentence has been served. Inmates do not have to apply to be heard, but may waive the hearing in writing if they choose to do so. Inmates serving longer sentences, who have been refused parole, may apply again for a hearing after six months. If they do not apply, the board must review their case within two years.
Inmates of provincial institutions must apply for parole and are eligible for consideration after one-sixth of their sentence has been served. However, there are no mandatory parole hearings at any stage for provincial inmates, as there are for federal inmates.
In preparation for a review, a case management team and the inmate meet to develop a release plan. When conditional release is approved, the inmate must sign a document that sets out the conditions of release, including supervision. Apart from extraordinary circumstances, virtually every inmate can expect to be released before completing the sentence imposed by the court. TOP
Proportionately fewer Aboriginal people than non-Aboriginal are granted parole, and fewer successfully complete their parole without return to prison. Lisa Hobbs Birnie, a journalist and former member of the parole board, provides a number of important insights on these issues in her book A Rock and a Hard Place:
We were told by Dorothy Betz, a former Aboriginal member of the National Parole Board, that many Aboriginal people do not apply for parole because parole and classification officers told them that it was unlikely to be granted. This was confirmed by inmates and former inmates who made presentations to us. This means that a disproportionate number of Aboriginal offenders are never properly considered for parole. We believe a number of factors help to explain why many Aboriginal inmates do not apply for parole, or agree in writing to waive their hearing:
As an Aboriginal justice system develops, we believe that an Aboriginal parole board should take over a large part of the role now played by the National Parole Board. This new board would deal with parole applications from inmates sentenced to prison by Aboriginal courts. However, even when an Aboriginal parole board is fully functioning, the existing parole system still will have substantial control over the release from prison of Aboriginal people. In large measure, we believe that in order to resolve the critical problems which plague the present system, the membership, staffing and procedures of the National Parole Board must be amended.
We recommend that:
At the time of our investigation, there were eight permanent board members and 18 temporary board members in the prairie region. Section 8 of the Parole Act provides for regional panels to be appointed by the Solicitor General on the recommendation of the chairperson of the board. When two or more members of the board are constituted in this way, they have all the powers of the full board to conduct application hearings and to deal with parole revocations. There are presently three permanent and five temporary members of the board from Manitoba. One permanent and one temporary member are Aboriginal. There are also two members from Manitoba who sit on all panels hearing applications from inmates serving life sentences, or inmates who are being held under the preventive detention provisions of the Act.
The parole board member profile, which outlines the desired qualifications of parole board members, provides an example of how systemic discrimination works against the involvement of Aboriginal people. While representation on the board of "bilingual," "female" and "minority" (specifically Aboriginal) people is encouraged, some of the conditions for membership on the board make it more difficult to attain adequate Aboriginal representation. For example, the educational requirements referred to in the profile are:
These qualifications ensure that the parole board is unrepresentative of the community it serves, and that members of the dominant society will be asked to make critical judgments concerning groups with which they have little experience. Another of the "personal qualifications" referred to in the profile is "full security clearance." If that means that a member must never have been in trouble with the law, important experience and assistance may be excluded.
There is an obvious absence of Aboriginal people at every step of the parole process. The increased involvement of Aboriginal people needs to start in the institution where classification officers and other staff are involved in assessing inmates suitability for parole. If classification officers who deal with Aboriginal inmates were Aboriginal, they would be better able to assess what the Aboriginal inmate is going through in prison, and what types of programs and services are required to help ensure success on parole. Aboriginal parole board members would be better able to make culturally appropriate parole decisions. Aboriginal parole officers would be better able to get to the bottom of any problems being experienced on parole.
There have been some attempts to hire Aboriginal staff, but these efforts have met with very limited success. The system continues to have major problems with limited resources and high caseloads. One Aboriginal parole officer who appeared at our hearings said his workload had doubled in the last five years. He told us that he did not have time to provide adequate supervision.
We are recommending the creation of an Aboriginally controlled parole system with an Aboriginal Parole Board, as well as regional, Aboriginally controlled probation services to serve Aboriginal communities. Whether the situation involves parole or probation, the community reintegration and support of persons who have been in conflict with the law is a similar process. In many cases it may be possible for the same individual to fulfil both roles.
We recommend that:
Even if Aboriginal inmates do apply for parole, they are less likely than non-Aboriginal inmates to be released. As we have already pointed out, many Aboriginal offenders do not understand the parole process and, usually, there is little assistance available to them. In addition, Aboriginal offenders may appear to be higher risks because, in the eyes of non-Aboriginal parole board members or parole officers, they are seen as lacking in formal education or employment experience. Furthermore, cultural and linguistic differences may prevent Aboriginal inmates from communicating effectively with parole officials.
Many Aboriginal inmates complained about the absence of effective release planning. They pointed to a lack of employment training, both within the institutions and as part of the parole program. Ironically, in assessing parole eligibility, much emphasis is placed on the availability of appropriate employment and educational programming in the community. Correctional institutions fail to provide these programs while the offender is incarcerated.
We were told that many assessments done of Aboriginal people by parole officers and others do not reflect the community or family situation, nor do they properly analyse the extent of the inmates rehabilitation or readiness for release. In presentations to our Commission, parole officers were criticized for spending too little time with Aboriginal applicants, and for failing to take the time necessary to allow for full explanation and discussion of available options.
Many Aboriginal inmates felt that parole officers had made up their minds without talking to them. Several inmates complained to us about the attitude of counsellors, parole officers and the National Parole Board itself. They believed that "the system" had preconceived expectations about the actions and attitudes required to obtain parole, and that these expectations did not treat Aboriginal people fairly. One inmate, for example, told of a letter he received from the parole authorities. It said that when he learned to conform they would "look at him." Such a comment has racist overtones if conforming means meeting the non-Aboriginal standards of the system.
Many Aboriginal inmates feel that they have less opportunity for parole because they are Aboriginal. One inmate was told: "I suppose youre just a burden to society, living off welfare." Another told us: "Parole looks at your skin and your education." Still another inmate said he attended Alcoholics Anonymous meetings but the parole panel did not believe him when he was unable to recite Step Five of the A.A. program. He was denied parole.
We believe it is wrong to impose one cultures standards of performance on those from a different culture. This is true particularly when it comes to standards of "acceptable behaviour." The demand to conform is heard by the Aboriginal person as a demand to abandon traditional ways and to adapt to a foreign culture. Pride prevents some from conforming in order to please "the system." Some simply agree to conform to such expectations.
We recommend that:
There are no full-time parole officers resident in remote communities, even though many inmates come from the North. While there are 16 northern communities and one southern one with volunteer parole officers, these staff are not involved in pre-release planning and do not receive significant training for their duties. They are given a brief orientation to the parole process, provide their reports by telephone to the nearest regional office and are paid on a per-case basis. We believe that volunteer parole officers serving Aboriginal communities should be replaced by properly trained, resident, Aboriginal parole officers.
We recommend that:
Income Security and Release Planning
Aboriginal inmates frequently do not have sufficient funds upon their release from prison to enable them to return to their home community, or even to provide basic necessities. These are matters of great concern to Aboriginal inmates, and matters that we believe influence the effectiveness of parole. These needs should be identified and dealt with prior to parole.
We recommend that:
Admission of Guilt as a Condition of Release
Some Aboriginal inmates are not released because the parole boards practice requires that they "show a good understanding of the offense, its gravity, effects and the factors surrounding its commission."16 In effect, they must admit their guilt. Those who believe they are not guilty, or who have no recollection of the events in question, frequently are not prepared or are unable to make this admission. Some believe the system erred in convicting them, and many will not lie just to get parole. Those working within the legal system know that it is not infallible. The parole board should also accept that reality.
We recommend that:
Use of Inappropriate Conditions for Release
If they are successful in obtaining parole, Aboriginal offenders face further obstacles. In particular, the board seems bent on imposing special conditions, apparently thinking these will be of some benefit. We believe that these conditions often have the opposite effect and, in many instances, virtually guarantee failure.
Numerous commissions, including the Task Force on the Release of Inmates17 and the federal working group on conditional release,18 have concluded that parole conditions are too vague and general, that they are often misunderstood, and that they are sometimes so unrealistic that they are virtually impossible to respect. Yet, the use of such conditions by the board has continued unabated.
One frequently used condition that causes us particular concern involves prohibiting an inmate from a small community from returning to that community. One of the primary responsibilities of the parole board is to return inmates to society in a manner that permits them to readapt to their communities. Since it presumably would be unthinkable to prohibit a person from returning to live in Winnipeg or Selkirk or Melita, if that were his or her prior home, we believe an individual from Gods River should also be allowed to return there.
Many Aboriginal persons on parole or probation are prohibited from consuming alcohol. It appears that this condition is applied whether or not alcohol was a factor in the original offence, leading us to believe that this prohibition may be as a result of the application of a stereotypical assumption that all Aboriginal offenders are alcoholics. Furthermore, applying an alcohol abstinence condition in effect criminalizes behaviour which is not in itself an offence under the Criminal Code.
It seems to us to be senseless to impose conditions to which it would be almost impossible to adhere. For example, a more reasonable condition in regard to alcohol would be to require the offender to undertake a program of alcohol treatment through such agencies as the Native Alcoholism Council.
Such excessive and unrealistic conditions clearly result in many Aboriginal people having their parole revoked. One of our Aboriginal researchers attended two hearings dealing with the revocation of parole. In both cases, Aboriginal parolees had breached conditions prohibiting the consumption of drugs or alcohol. In spite of the explanations as to how the infractions developed, and in spite of an otherwise good record while on parole, the parole board members believed they had no choice but to revoke parole. Despite the fact that neither board member involved had ever been on a reserve, they did not feel it was necessary to receive any evidence about reserve conditions before arriving at their decision.
We recommend that:
It appears to us that the board believes supervision is required in virtually all cases. Yet, we know that the majority of inmates are not dangerous. The requirement for supervision in all cases as now imposed has the effect of making it difficult to approve release plans which involve return to remote communities where there is no parole officer.
We believe the board should grant parole without formal supervision requirements in many more cases. Unless there is a specific need for constant supervision, we question why this requirement should be imposed.
We recommend that:
Clearly, the present parole system is not working for Aboriginal peoples and systemically discriminates against them.
We regret that much of what we observed is not new. Many of the problems we discuss have been identified and analysed countless times before. Don McCaskill, for example, studied unrealistic parole rules and the lack of involvement of Aboriginal communities in the parole program over 20 years ago.19 Gail Michalis and William T. Badcock analysed the inappropriate assessment criteria used to determine parole eligibility.20 Carolyn Canfield and Linda Drinnan examined differential rates in the granting of parole.21 Even the National Parole Board has studied and recognized many of the concerns.22
Even though we know that a fair, culturally sensitive parole process, with adequate services for Aboriginal offenders and their communities, holds the promise of reducing recidivism as well as lowering the Aboriginal jail population, reforms have not been implemented. A strong commitment for improvement is required and must come from the parole authorities and from the government. Without such a commitment, we fear that decades again may pass without the parole system being improved. This would be unfortunate not only for Aboriginal peoples, but for all Manitobans. TOP
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