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| Michael Crowley |
An unusual question, to be sure, but I had to ask as we were making a decision on an individual who was serving a life sentence, but was not a Canadian citizen. If we granted full parole he would be deported to Scotland. If not, because we deemed his risk as being unmanageable, then it was very likely that he would never be released into the community, anywhere.
The Parole Board of Canada (PBC) has the sole jurisdiction at making decisions regarding parole for anyone serving a sentence of two years or more in Canada.
According to the Corrections and Conditional Release Act (CCRA) S.C. 1992,
“(a) the Board may grant parole to an offender if in its opinion, the offender will not, by reoffending, present an undue risk to society before the expiration according to the law, of the sentence the offender is serving, and
(b) the release of the offender will contribute to the protection of society by facilitating the reintegration of the offender into society as a law-abiding person.”
The legislation does not make a distinction between Canadian society and that of any other country or jurisdiction.
In essence the board has to assess the risk posed by an inmate at the time of a parole hearing; whether it believes that the risk is manageable in the community, and that the offender is likely to contribute to the well-being of society, generally through pro-social activities such as employment.
Normally, in assessing cases who are seeking parole within Canada, when board members assess level of risk and the manageability of that risk, it is assumed that the individual will be supervised by a parole officer; that police will be aware of that person, and that the board is able to impose special conditions that (generally) prohibit behaviour that had led to previous offending. These are in addition to the standard conditions that exist in legislation. Parole officers are able to monitor adherence to any of these conditions, and are able to offer treatment or counselling opportunities. Police are also able to monitor the individual’s behaviour and associations. All of these factors contribute to the understanding of the level of risk and its manageability.
For individuals who are serving life or indeterminate sentences, the board always exercises careful and cautious consideration prior to release anyone, given the seriousness of that person’s offence history and the level of harm potentially posed if they are released.
Not everyone who is serving a life sentence in Canada is granted any form of conditional release, such as day or full parole. Although each such individual remains eligible for parole consideration, some never attempt to be released, while others, after a seeming endless series of negative decisions, simply give up.
On the other hand, there are also incarcerated individuals who are not Canadian citizens but are serving life sentences and have been ordered to be deported (once a removal order has been made) to another country.
Assessing these individuals using the legislated criteria poses significant difficulties, as Canada is not able to transfer jurisdiction or supervision to another country. That means that if the Board grants parole there will be no supervision of that person by any corrections officials. The PBC is unable to impose any special conditions because they cannot be supervised. The sole exception is that anyone deported must notify the Correctional Service of Canada (CSC) and the board, if they wish to return to Canada. That allows the Board, with the advice from CSC to impose conditions that would then be in force. Of course the Federal government, through the appropriate minister would have to approve the request to return to Canada.
In my experience of 21 years as a board member I conducted a number of hearings of individuals who were serving life sentences and were seeking full parole to return to their home countries. In some cases, the individual was someone who was born elsewhere and came to Canada as a child, along with their family. They were raised in Canada, and may well have thought of themselves as Canadian – but had never acquired Canadian citizenship. In other cases the individual we were seeing primarily lived in another country but came to Canada fairly recently and had not become a citizen. In either type of case, they were likely to be deported.
I can also say that during my years on the board I can recall only four instances in which I agreed to grant parole, and I assumed that the inmate then left the country once all the paperwork had been completed.
Having said that, I also believe that I assessed a few cases who I would likely have granted day parole to, had they been Canadians or eligible to remain in Canada. That is, I believed that their risk for future violence was not significant, that they had benefitted from programs or counselling while incarcerated, and that they had positive, pro-social support in the community. But because of their immigration status, could not be released in Canada.
One case that comes to mind was Peter Collins. In 1983 he was a high risk individual who had been a bank robber, in jail at the Ottawa-Carleton Detention Centre in Ottawa when he escaped, obtained a handgun and killed a police officer while attempting to rob a bank in an Ottawa shopping mall. In spite of the horrific nature of his crime as well as his lengthy criminal history, his institutional behaviour and program participation had been positive factors for a number of years. In many respects his conduct and the assessment of the risk he posed was not different from other men serving life sentences.
Collins was born in England, came to Canada when he was very young and apparently had a difficult and abusive family life. He never acquired Canadian citizenship. Consequently, he was ordered to be deported to England if he was released from prison.
I saw him on two different occasions and denied full parole in each case. In my view, although he had made what appeared to be significant changes in his attitude and behaviour, he was someone who would still require supervision if he was released. But if he were not deportable, it seems likely that he would have been able to be granted escorted and unescorted temporary absences, which might then lead to day parole, where his behaviour could be tested more precisely in a controlled environment in the community.
Collins had other hearings and was never granted full parole. He died from cancer in 2105 after being incarcerated for 32 years.
All other inmates (not serving life sentences) who are not Canadian citizens, regardless of the lengths of their sentences, will finish their sentences, either at their Warrant Expiry Date or earlier, at the Statutory Release date. When that happens, and there is a removal order, they will leave Canada, usually being escorted by staff from Canada Border Services.
In advance of this, while the Canadian government has decided that the individual cannot remain, the distant government has to agree to accept that individual. Normally this is relatively straight-forward. But every once in a rare while there is a glitch.
When I was vice-chair of the Province of Ontario’s parole board, we had granted parole to someone who was deportable to Jamaica. All the paperwork had been completed and the Jamaican government assured us that he would be accepted on his return. Then late one afternoon I received a phone call from an officer at Canada Border Services who told me that the Immigration Officer at the airport in Jamaica had refused to accept the individual’s entry into Jamaica!
I asked how this could be, given that the government had agreed. The officer advised me that the final decision, in such a case, is that of the Immigration officer at the port of entry! I had no choice but to accept her advice. But then she said she had a solution – rather than returning him to Canada to serve his sentence, they had noted that the individual also had a valid British passport – and so with my verbal approval, they would fly with him to London. But of course was there the possibility that he would be turned away there as well – and she assured me that this would not happen. So I agreed!
But returning to the question that I posed at the beginning of this article – if the board does not grant parole to a person who is serving a life sentence and is deportable, what happens to them? The reality is that they will very likely remain in prison in Canada until they are deceased.
In an earlier article I took the position that I am opposed to either capital punishment or a life sentence with no hope for parole. The Criminal Code of Canada does not allow either to occur – at least in principle. But in practice, there are likely more than 100 individuals who will never be released because of their deportation status and the risk they would still pose if released without supervision. While the number of these individuals is not large, I often wondered how they coped with the knowledge that living outside prison was likely an impossible dream.
Michael Crowley has a BA from Syracuse University. He spent more than 40 years in various positions within the criminal justice system in Canada. Before retiring, Crowley had been a member of the Parole Board of Canada for 21 years. Contact him via CrowleyMichael167@gmail.com.
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