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| Michael Crowley |
This is an automatic rather than a discretionary release, and the role of the Parole Board of Canada is essentially limited to imposing additional or special conditions on that release, in addition to those standard conditions found in the CCRA.
An individual who is released on Statutory Release (SR) may have been denied for a conditional release by the board; may have been released on either day or full parole but had that release revoked or may never have had a decision from the board because they did not apply for day parole and waived their full parole review.
Nonetheless, all offenders will be released at the two-thirds mark (unless they have been detained by the board — a future topic) and present varying levels of risk for re-offending as well as a variety of types of offences, either violent or not.
The process of imposing special conditions involves the Correctional Service of Canada (CSC) making recommendations to the board and one member of the board reviewing all available file information, and then making a decision about which conditions meet the criteria set out in the CCRA (s. 133(3)). This section of the act is the authority for the board to impose any condition on an offender that it considers reasonable and necessary in order to “protect society and to facilitate the offender’s successful reintegration into society.”
In general, an offender leaving prison has a certain amount of freedom in the choice of where they will live following their release. This is subject to certain standard conditions, such as the requirement that they reside in Canada.
Additionally, the board may restrict an offender from residing near current victims, or within certain parts of cities that are considered to be high crime areas, or areas where gangs may be prevalent, and a release there would lead to an increase in risk for re-offending.
The board also has the option of requiring that the offender reside at a specific location; in general, a community residential facility (CRF), community correctional centre (CCC) or psychiatric facility.
CRFs are commonly referred to as halfway houses, and across Canada are operated by non-governmental agencies such as the Salvation Army, St. Leonard’s Society, the Elizabeth Fry Society and the John Howard Society. CCCs are similar in many ways but are operated by CSC. The other crucial distinction is that a CCC must accept a case referred to it (with limited exceptions) while a voluntary sector CRF has the right of refusal.
These facilities vary in size and location; some have 10 beds or fewer while others may have 30 or more beds. While many are located in urban areas, many others are in smaller towns or in rural areas.
While there are differences in programming or types of supervision, all halfway houses (and CCCs) are staffed around the clock and have strict rules regarding an offender’s access to the community. Some halfway houses also provide treatment programming internally or have access to such programming in the nearby community. All have rules prohibiting the use of drugs or alcohol in the facility and conduct routine testing to ensure that there are no violations of these rules.
Because this special condition imposes significant restrictions on a person’s freedoms and may make successful reintegration more difficult, the board may only impose a residency condition if it is (s. 133 (4.1)) “satisfied that in the absence of such a condition the offender will present an undue risk to society by committing before the expiration of their sentence, an offence set out in Schedule 1 or an offender S. 467.11, 467.12 or 467.13.”
Schedule 1 offences are those listed in the CCRA and are considered to be violent; s. 467 of the Criminal Code relate to offences that involve criminal organizations.
When I was appointed to the board in 1996, a residency condition was rarely used. The intent was to significantly restrict the freedoms of offenders who had not been detained by the board, but nonetheless posed a significant likelihood of committing violent crimes prior to the warrant expiry date (WED). In addition, the board could only impose the condition following an in-person hearing.
The requirement for a hearing was abandoned in the early 2000s, primarily as a cost-saving measure by the board. Until fairly recently two members were involved in the imposition of special conditions. That changed as a result of a cost reduction exercise and currently it only requires one member to impose any condition, including residency, in spite of its very restrictive nature.
The board’s policy manual (5.1) sets out the guidelines that members are to use in order to determine whether an offender meets the test for the imposition of a residency condition. Members are required to assess the offender’s potential for violent behaviour, stressors in the release environment that might predict violent behaviour, psychiatric or psychological information that a mental illness or disorder has the potential to lead to the commission of an offence involving violence, information about the offender’s attempts to mitigate risk for violence and any information about the offender’s willingness to participate in appropriate programming.
In my view, this is a significant test or bar to clear in order to impose a residency condition. An offender should present as a high risk, based on actuarial assessments, to commit an offence involving violence in the time frame ending with their WED. Again, in my view, this virtually necessitates a pattern of violent behaviour that is persistent over a number of years, and one that involves the use of weapons and/or force with significant indifference with respect to the harm to victims.
So, again in my opinion, the first part of the test is to determine whether a pattern of violent behaviour, that is predictive of similar future behaviour, exists. There is, I believe, a second part to this test, though not as clearly stated.
And that second part involves an analysis or understanding of the value or the benefit of having the individual live in a halfway house. The controls evident in halfway houses are fairly clear. An individual should not be out of the facility unless they have a specific purpose in so doing. They have to sign out and indicate where they are going, and then have a return time or curfew. Failing to return would likely lead to a suspension of their release. The place where they live have staff around at all times, and their interactions with others in the residence can be monitored for aggressive language or behaviour and they are subject to breathalyzing or urine testing.
That seems, on the surface, to be ideal with respect to monitoring attitudes and behaviours. But the reality is not always as strict. Offenders often leave a halfway house in the morning with the staff having limited ability to ensure that they are actually going to the location where they claim to be heading. Staff have no way of knowing whether an offender is meeting with individuals who are criminally minded, or individuals with whom they have had past criminal dealings.
They may be tasked with looking for employment, but in today’s Internet era most job searches do not lead to a written record which could confirm whether they had actually dropped off a resumé or job application. Contrary to the expectations of many board members, staff at halfway houses do not routinely search the rooms of the residents, nor do they look for contraband in packages or backpacks that offenders bring back with them when they return.
Finally, if an offender’s primary criminogenic risk factor is having criminal associations, placing him in a facility with many individuals who have similar issues does not lead to a reduction in risk.
I would argue that imposing a residency condition may give the board a false sense of security, because they believe that the offender’s whereabouts and activities are known to staff on a daily basis. In general, that is not the case, given staffing considerations.
I used to consider that one of the benefits of a residency condition was that a resident would return and speak with staff in every instance. If the resident appeared to have used drugs or alcohol, or they had a bad day at work and their emotions were barely under control, the staff could deal with it immediately and effectively. But if staff are busy or distracted, returning residents may often just sign in and not speak with anyone, thereby avoiding scrutiny.
A disturbing trend, in my view, is the dramatic increase in the use of the residency condition. According to a CSC research report (The Imposition of Residency Conditions Over Fifteen Years) Publication No. RS 14-37, 2015, there was more than a 300 per cent increase in the use of residency from 1999-2000 to 2013-2014!
It is my opinion that this utilization rate is not justified. There is no evidence that federal offenders have become significantly more violent than in the past and as a consequence these numbers lead to questions regarding the strict application of the board’s assessment protocol when cases are reviewed for a residency condition. Living in a halfway house that may not be close to their own community supports, treatment opportunities or past employment may well make reintegration back into the community more difficult. Residency cases strain the capacity of the agencies that operate halfway houses, thus leading to less effective interventions due to workload issues.
I would argue that while it may be appropriate for a sole member of the board to impose special conditions on statutory release, any case in which a residency condition is being contemplated should require two members to make the decision. This would provide the opportunity for a reasoned discussion between members regarding the condition and to determine whether it would provide measurable public safety gains, as well as meeting the test set out in legislation.
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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