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| Michael Crowley |
The grant rate had decreased to less than three per cent recently and since there were approximately 16,000 people in state incarceration; that meant the system would become even more crowded and discouraging for anyone in it trying to reintegrate back into society.
For comparison purposes, the most recent grant rate in Canada (StatCan) for day parole is 71 per cent and for full parole it is 33 per cent.
The aspect of the article about parole in South Carolina that really caught my attention was that, until fairly recently, incarcerated people were unable to view their files prior to their hearings. Now they can, but only on the morning of their hearings. For someone who has been incarcerated for many months or years, a file would likely contain hundreds or even thousands of pages and to have only an hour or so to view that information (that the board relies on) and to offer an explanation or request a correction would be virtually impossible.
Initially, I compared this practice to what I had experienced in my 21 years as a member of the Parole Board of Canada. In Canada, all relevant information is shared with incarcerated individuals, and the sharing is required to occur no less than 15 days prior to a scheduled hearing (s. 141(1) of the Corrections and Conditional Release Act (CCRA)). There are exceptions, but if information is withheld (usually to protect the source of the information), a gist must be provided to the person whose case is being decided. The general rule is that the incarcerated person must be aware of the allegations or concerns so that they can respond to any questions that arise as a result.
Before I was appointed to the Parole Board of Canada (PBC), I had been a regional vice-chair of the Parole Board of Ontario for three years. The Ontario board is responsible for making conditional release decisions for anyone serving a provincial sentence — that is, a sentence no longer than one day less than two years.
When I was appointed in 1992, the (CCRA) was new, and I knew that Ontario had not opted into some provisions of the Act, such as day parole. Therefore, an incarcerated person in Ontario could not be granted day parole, so the only option for a conditional release was full parole. If parole was not granted, they completed two-thirds of their sentence and were then released, with no conditions or supervision.
During my time on the Ontario board file information concerning an incarcerated person was not shared with them directly or with any person who was acting as an assistant for a parole hearing. Much of the file information that the board used was actually the property of the Ministry of Correctional Services.
They sent files out to the board a day or two prior to a scheduled hearing; members took turns reviewing, and then the files were returned to the institution that generated them. There was a document entitled a pre-parole report (PPR), which was completed by a probation officer who conducted interviews with the incarcerated person's family or employer. These were very brief, much different than a pre-sentence report and generally were not shared.
This led to there being times when board members were put in difficult positions because this information was not shared. For instance, I recall a case where the young man whose hearing we were conducting believed that his release plan was to return to live with his family. However, the PPR noted that his parents did not want him living with them but did not want him to know that. So, following the hearing, we had to find a different reason to deny parole. I always felt uncomfortable but didn’t think I had any options.
Near the end of my three-year term, I received a request from a lawyer to come to my office in order to review a file and take notes. She asked me why the file was not shared, because she also worked with incarcerated people serving federal sentences, and knew that an incarcerated individual's file was shared in that system. She also said that as the same legislation applied to both federal and provincial parole, she wondered how our rules were legal. I didn’t have an answer.
When I was appointed to the PBC (then known as the National Parole Board) in 1996, I quickly learned that there were a number of differences between the provincial and federal systems, including this notion of sharing information. Initially, I was surprised, understanding that everything we had as board members, all information contained in an incarcerated individual's file, was also given to them and that it had to be given no less than 15 days in advance of a hearing.
Not only was file information fully shared, but the amount and quality of information was significantly more extensive than what I had been used to for three years. After I completed training and started participating in hearings, I realized that this was a much better system — that there was nothing hidden from the incarcerated individual, and that they had the opportunity to dispute anything that they felt was incorrect or required an explanation.
There were other differences as well between the two systems. The Correctional Service of Canada has the responsibility for case planning and case management for each incarcerated person. Institutional parole officers attend hearings and present cases to the board for its consideration, although all the information, contained in an assessment for decision, has already been reviewed prior to the hearing. The provincial system, when I was on the Ontario board, did not have a case management function (and still doesn’t). Probation officers were assigned to work in institutions and were called institution liaison officers. Their role was more administrative in nature; they did not have caseloads and did not present cases. They mainly ensured that the incarcerated people showed up at the hearing rooms.
After reading about South Carolina’s experience and my view that the PBC approach was so much more fair, I wondered how much had changed with the Ontario system since I left in 1995. So I made some inquiries and determined that not much had actually changed. That is, files can be shared, but only if requested by an incarcerated individual's legal representative or (rarely) by an incarcerated individual. However, the board is trying to ensure that information is made available 48 hours prior to a hearing. In my view, this doesn’t provide sufficient time to review a file and prepare to respond to information that may not be accurate. Reports such as psychological risk assessments are not uniformly shared.
In addition, the Parole Board of Canada has an entire appeal division with both full-time and part-time members who respond to written appeals, either from incarcerated individuals directly or through their legal representatives. I sat as a member of the appeal division fairly often, and I know how complex many of those appeals were, often requiring my listening to an entire hearing if the appeal was with reference to the way that the board members had conducted it. The duty to act fairly, to respect the law and to make reasonable decisions are critical components of those appeals.
There is not an appeal division in the Ontario parole system, and appeals are treated much as they were when I was on the board. That is, if an incarcerated individual writes in to appeal a decision, the chair delegates the decision to one of the three full-time members to review it.
As noted, provincially, incarcerated individuals are disadvantaged because they don’t have access to day parole, and even if they did, Ontario ceased funding halfway houses more than 20 years ago.
After I had discerned these and other differences, it dawned on me that the Parole Board of Canada has jurisdiction regarding conditional release decisions in the eight provinces that do not have parole boards, as the right to parole consideration is found in s. 108 (1) of the CCRA.
In the eight provinces and three territories, it is the PBC that makes release decisions; and where it exercises its jurisdiction, it applies all of its policies and directives in the same way it would for incarcerated individuals serving federal sentences. That means information is shared fully, and no less than 15 days prior to a hearing. The board’s appeal division reviews appeals from provincial cases and, in so doing, ensures that the duty to act fairly is complied with.
I am neither a lawyer nor a constitutional law scholar. However, after duly considering all of these factors, it struck me that an incarcerated individual in Ontario is not treated in the same way that they would be if they had been incarcerated in any other province or territory (Quebec has its own parole board). If this view is accurate, then it seems to me that an argument can be made that Ontario is in violation of the Charter, as an incarcerated individual in that province is being deprived of the equal protection of the law as set out in s. 15 of the Charter of Rights and Freedoms, which states that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination.
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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