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Human Rights In Community Corrections

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CHAPTER 5: CSC POLICIES IN COMMUNITY CORRECTIONS

The Working Group will review existing policies ... which affect the human rights of offenders while under community supervision.

The Service's Mission Statement and ensuing Strategic Objectives make a number of commitments that bear on offenders' rights in the community corrections context. Among other things, the Mission states that equal importance is to be given to assistance and control; and in doing so, that "the main thrust of our energy and creativity is on working with the individual offender to bring about his or her safe reintegration." Most of the Strategic Objectives enumerated on page 11 in relation to Core Value 2 also bear out this general commitment.9 In short, the emphasis that CSC places on its responsibility to encourage and enable offenders to become more law-abiding, and "to mobilize community resources" to that end, presumably entitles them, in practice, to expect a corresponding balance of assistance and control. Moreover, since the Mission as much as the Act serves CSC as a basis for reviewing performance, any such rights-related commitment should be highlighted as part of the performance evaluation process. The Working Group has therefore tried to assess how far this is indeed the case, either as a matter of policy or practice.

As noted in our earlier report, CSC continues to have an abundance of policy directives dealing with every aspect of corrections. For purposes of the present exercise, it can be assumed that most of those policies apply equally to the institutional and community situations. Others, by their nature, are geared exclusively to institutional requirements; on the other hand, relatively few of the Commissioner's Directives, for example, could be said to deal either primarily or substantively with community corrections.10

However, many of the practical rights-related matters of concern to staff, offenders, victims or the public at large are covered, in one way or another, in the National Parole Board's Policy Manual, in CSC's Case Management Manual, and, most recently, in a number of (Interim) Standard Operating Practices in the 700 series.

With respect to the general adequacy of CSC's current policy guidance on community corrections, the Working Group has therefore tried to confirm whether all actual or potential human rights concerns are dealt with within this body of policy guidelines; whether the practical implications of any particular rights-related policy are clear and unambiguous enough for all parties to understand; and whether there are areas of policy which might benefit from additional clarification or consolidation.

Briefly, our conclusions are as follows.

  1. Written policies exist with respect to virtually all human rights issues,
    • from general directions to use the least restrictive and intrusive interventions,
    • consistent with responsible risk management, to specific instructions
    • regarding the types of offender-related information that may be shared with
    • victims and by whom.
  2. It is less certain that all parties are clear about the practical implications of any particular policy, let alone whether they accept them as fair and reasonable.
  3. Specific points that may warrant further clarification include:
    1. the imposition and/or interpretation of special release conditions as they
      • relate to an offender's criminal history and risk rating, and how those
      • conditions interact with suspension and/or revocation of parole;
    2. the attachment of mandatory treatment provisions, more particularly
      • psychiatric or psychological treatment requirements, as a condition of
      • parole;
    3. consistent determination of financial (maintenance) allowances in
      • accordance with an offender's status and needs; and
    4. the implementation of policy in areas related to disability.

Before dealing with these in more detail, it is worth noting two or three general considerations about the way in which CSC formulates and implements its policies on community corrections. Policies related to control and supervision not only outweigh policies dealing with assistance in reintegrating, they also entail many procedural and documentation requirements which, according to parole officers, are the major focus of audits and performance evaluations, and thus absorb a great deal of time that might otherwise be applied to mobilizing "community resources to ensure that offenders...are provided with support and assistance."11

By way of illustration, the Standard Operating Practices on Community Supervision (Interim, February 1999) run to 18 pages and set out in detail such matters as the rating levels for intervention based on static and dynamic risk factors in the offender's behaviour. However, apart from a brief note (item fifty-three of one hundred and eleven) that the "Parole Officer's task is to actively encourage and assist the offender to become a law-abiding citizen", the SOPs offer no guidance, either general or specific, as to what forms such encouragement and assistance might normally be expected to take. From the perspective of offenders' rights, it therefore seems legitimate to ask how well existing policy and procedural requirements reflect the proposition that community corrections is a mix of three interrelated activities - supervision, programming and community involvement. If the balancing of practical assistance and risk management is out of proportion at the level of operating procedures or performance standards, it seems quite probable that it will be so in day-to-day practice.

ACTUAL OR POTENTIAL POLICY PROBLEMS

Special Conditions

A CSC Bulletin on Case Management12 seeks to clarify three recent policy circulars issued by National Parole Board, and in particular the basis for imposing "special conditions" of release and the interventions that may flow from a breach of those conditions. The Bulletin stresses two things:

  1. that special conditions "are extraordinary measures that require demonstrable evidence that they are necessary, reasonable, and the least restrictive option consistent with the protection of society";
  2. that the "violation of a special condition will now be indicative of the risk becoming unacceptable, resulting in immediate intervention by the supervising authority". (While it is also made clear that such interventions may come short of suspension, the Parole Board must be informed of the violation and the action taken within 3 working days).

We note, however, that over sixty percent of releases carry a special condition related to abstinence - from alcohol, drugs, intoxicants, or some combination thereof. As a result, it is hard to describe such a condition as an "extraordinary measure." It may be, of course, that what are sometimes called "technical breaches" of such widely used measures do not often lead to immediate suspensions or revocations; we nevertheless suggest that both policy and practice in this area require closer evaluation in terms of what is meant by an "extraordinary" measure, as well as from "the least restrictive" option standpoint.

Treatment Conditions

As a general rule, and pursuant to section 133 of the CCRA, the Parole Board may only impose special parole conditions that are considered "reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender." On occasion, the Board imposes a treatment-oriented special condition to ensure that the offender will not present an undue risk. We believe that as long as it can be demonstrated that such a condition is the exception, not the rule, that it is indeed "reasonable and necessary", and that its violation would likely result in violent re-offending, then suspension or revocation may be in order. However, we also suggest that the CSC and the Board should always actively seek alternative ways to manage offenders in the community before suspending or revoking parole on the basis of a failure to abide by a treatment-oriented condition. This might entail, for instance, further assessing the reasons for refusal to participate in treatment, offering other forms of treatment to which the offender consents, or increasing the frequency of monitoring.

Financial Maintenance Allowances

In the course of our meetings with offenders and staff in the five main regions of the country, we tried to ascertain what financial allowances were provided to offenders and on what basis these were determined. Since released offenders understandably attach considerable importance to such allowances and the impact they have on how and where they live, where they can go, and what they are able to do while attempting to reintegrate, the Group was struck by the number of apparent variations in financial treatment. The explanation we were given has several aspects, among them that:

  1. Commissioner's Directive 870 (Maintenance Allowance for Offenders)
    • provides the underlying policy rules;
  2. particular differences are attributable to factors such as cost-of-living differences from region to region (as reflected in Treasury Board rates); whether the offender is participating in a program; and whether meals, laundry and other facilities are provided by the CCC or CRF where the offender resides.

Local welfare rates are also said to have a bearing on offender allowances.

Having reviewed CD 870, we find that, within the basic proposition that "an offender granted a release shall be eligible for payment of all reasonable transportation, food and, where applicable, lodging expenses", the directive gives both CSC and NGO managers latitude to vary what is reasonable within six parameters: i) need as shown by an offender's budget; ii) the availability of cooking facilities; iii) program participation; iv) the offender's effort and motivation in seeking or maintaining employment; v) the offender's demonstrated financial responsibility; and vi) the availability of alternative forms of financing.

None of the above is intrinsically unreasonable, but collectively they can - and do - give rise to significant local and individual variations which may be questionable. We therefore recommend that the policy be simplified and rationalized to improve consistency and avoid potential resentments; and to ensure that in all cases it genuinely enables offenders to reintegrate as part of the community.

Issues Related to Disability

As a general rule, CSC ensures that federal prisons are "barrier-free" as regards their ability to house and otherwise accommodate offenders with both physical and other disabilities. Since these offenders reasonably expect to be released into the community at the same rate and under the same conditions as those without impairments, the Service has a responsibility to ensure that this is the case and that no discrimination results. In point of fact, however, a lack of accessible residential or other accommodation may result in delays in offenders' release or limitations to their mobility once released. Complaints to this effect are at present before the Canadian Human Rights Commission.

From our observations, it would appear that, while most of the Community Correction Centres meet essential accessibility standards, Community Residential Facilities operated under contract by NGOs are much less likely to pass that test. Nor does the Service seem to require them to do so, possibly because such a requirement would impose serious financial strains on obviously well-intentioned community agencies.

Since any continued use of inaccessible facilities might well be judged a breach of Canada's human rights law, as well as federal policy, we recommend:

  1. that CSC carry out without delay a comprehensive accessibility survey of all CCCs and CRFs or other facilities used by offenders while in the community;
  2. that it develop an appropriate action plan to correct any deficiencies; and
  3. that it examine means whereby CRFs could be required by contract to become fully accessible, including the possibility that any necessary adaptations would be financed by CSC.

While, with the exception of inaccessibility and its consequences, none of the problem areas mentioned above constitutes a violation of human rights law, several of them clearly deserve attention, in terms both of policy and practical monitoring to ensure that the Service achieves the levels of humanity, fairness and consistency to which it aspires.

9 Core Value 2 states: "We recognize that the offender has the potential to live as a law-abiding citizen."

10 Among those Commissioner's Directives which bear on community corrections are: #23 Community Advisory Committees, #545 Escorts, #571 Searches and Seizures of Contraband, #572 Urinalysis Program, #700 Case Management, #720 Education of Offenders, #740 Work Releases, #760 Leisure Activities, #770 Visiting, #775 Volunteers and Volunteer Activities, #780 Parole Supervision, #782 Sharing Offender-related Information, #784 Information Sharing between Victims and The Service, #790 Temporary Absences, #850 Mental Health Services, #870 Maintenance Allowance for Offenders.

11 Strategic Objective 2.12.

12 September 28, 1998.