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Human Rights In Community Corrections

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CHAPTER 6: CSC PRACTICES AND MONITORING MECHANISMS

The Working Group will review existing... operational practices and monitoring procedures... and assess the extent to which community corrections interventions (e.g. home visits, "surprise visits", voice tracking, electronic monitoring, etc.) adequately respect offenders' rights,... and provide guidance on how to enhance the rights and dignity of individuals (offenders, friends, victims, family, staff) in the community correctional environment.

I) Employees' Rights

We have found no evidence to suggest that employee rights problems in community corrections are different in kind from those of institution-based staff. The concerns expressed generally boil down to three:

  1. working conditions: e.g. work loads, personal dangers, prompt and fair redress of grievances, etc.;
  2. some continuing concern about the clarity and completeness of the Service's anti-harassment policy; and
  3. various aspects of employment equity and the accommodation of people with disabilities.

None of the CSC employees with whom we spoke, including USGE representatives, identified any form of employee right that seemed to them peculiar to the work of community corrections. They generally agreed that those rights that they enjoy as Canadians, as federal public servants and as employees of CSC are, for the most part, sufficiently articulated in law and policy and appropriately monitored and protected by the mechanisms and agencies in place.

We reiterate our previous recommendations that the Service clarify and reinforce its harassment policy to make clear that it applies to all forms of harassment prohibited under the Canadian Human Rights Act, whatever their source, and that effective remedies need to be in place and applied wherever harassment is found to have occurred.

The Group also tried to sound out employees about their perceptions of the various employment equity problems that CSC is acknowledged to have. The responses differed widely, from one employee who found the policy itself to be discriminatory and unnecessary ("reverse discrimination") and several who appeared quite oblivious to the issue, to the majority who recognized that, given the demographics of the offender population in the community, their work would clearly benefit from greater diversity among parole officers. The recent report on CSC conducted by the Canadian Human Rights Commission brings out a number of these points, and we endorse their conclusions and recommendations; it will be important to ensure, not only that they are followed - and monitored - but also that their rationale is adequately communicated to CSC management and staff.

Briefly, the main findings of the CHRC Employment Equity Review (October, 1998) are that, in relation to their estimated availability in the general labour force, only visible minorities are seriously under-represented. Women, aboriginal peoples and visible minorities are also increasingly under-represented as they progress up the organizational hierarchy.

One should further point out that CSC workforce data for aboriginal peoples and visible minorities relate poorly to the representation of those two groups in the offender population, both in institutions and in the community. This obviously affects the Service's ability to deliver programs and provide assistance and support to such offenders as part of the community corrections program. While recognizing CSC's desire "to create an employee population that is more fully reflective" of the numbers in the offender population, the CHRC review provides no guidance on how a more appropriate balance might be achieved, or in what timeframe; and no such measures are to be found among the Service's latest employment equity compliance objectives. We therefore reiterate the recommendation made in our previous report that the Service "develop specific components of its employment equity plan that particularly address long-standing problems in achieving a more appropriate balance between the representation and distribution of employees vis-à-vis offenders."

Appropriate accommodation of employees with disabilities also remains a considerable concern, as does the accessibility or adaptation of some community residential centres and halfway houses. While more recent installations show a satisfactory level of compliance with barrier-free standards, progress to bring older premises into line has been spotty and appears to be a low budgetary priority. This is a particularly difficult problem in premises managed by NGOs under contract. Since these short comings affect not only employees with disabilities but also offenders, visitors and members of the public with mobility or other impairments, we recommend that CSC step up its efforts to achieve full accessibility.

Monitoring Mechanisms

The mechanisms that CSC has at its disposal for monitoring compliance with the rights of employees working in community corrections are, to all intents and purposes, the same as those for dealing with institution-based staff. They comprise access to both internal and external complaint or grievance processes and the normal array of internal and external audit or evaluation systems. Apart from one complaint that no remedial action was taken in response to a successful grievance, we have no reason to question the general efficacy of those processes. At the same time, we are not aware of any internal audits, evaluations or reviews, whether recent, ongoing or proposed, that bear specifically on the human rights situation of employees working in the area of community corrections.

II) Offenders' Rights

In reaching its conclusions about which, if any, CSC practices might adversely affect the rights of offenders, the Group has relied on information from several sources: discussions with senior managers at NHQ and parole officers in the field; feedback from offenders in all regions; internal investigative reports or performance evaluations and reviews that focus on the strengths and weakness in the Service's application of supervisory or other standards; external evaluation and comments, for example from NGOs, the Church Council, the Correctional Investigator, and others; as well as case law on the imposition and administration of parole conditions. Not surprisingly, these comments have at times provided conflicting views on the relevance and effectiveness of CSC systems for safeguarding human rights.

Assuming that low risk offenders under light supervision seldom perceive breaches of their rights, it seems safe to suppose that rights-related problems will more likely occur among high-risk, heavily supervised offenders. In practice, the latter sometimes suggest that their parole conditions and supervisory regimes are less than humane or helpful. However, when it comes to enumerating specific instances where CSC's safeguards allegedly break down or show signs of systemic weakness, such occurrences are limited in both number and significance.

Particular allegations include:

  1. overly strict imposition of local or house rules, which frustrates offenders without inducing more responsible behaviour;
  2. particular inconsistencies in the ways such rules are applied;
  3. necessary interventions, such as searches, that allegedly are not always conducted with respect for the procedural requirements set out in law and policy;
  4. suggestions that some offenders have found surprise visits or contacts with family, friends, employers, etc. unreasonably intrusive or less than helpful to their efforts to reintegrate; and
  5. problems with respect to the availability or suitability of programming and treatment, either for reasons related to geographic location or because some services provided in institutions may be less easily obtained on the outside.

While it is not easy to substantiate particular observations or allegations, most of the above issues were raised with sufficient frequency to suggest that there are inconsistencies or ambiguities that need to be looked into, and that may not be systematically captured by current monitoring.

The Use of Community Interventions

Supervision and management of offenders in the community entail both routine and special interventions to ensure that they are complying with their release conditions and correctional plan. Since these are intrinsically restrictive or intrusive, their nature and application may give rise to human rights concerns, and not only for offenders themselves. It should therefore be clear that all such interventions, whether they involve routine reporting, home visits, urinalysis or some form of electronic monitoring, are administered as a conscious privation of normal freedoms, and consistent with gradual, safe and humane reintegration. Under international and domestic law, CSC has the authority to use any intervention that is reasonable and necessary; the challenge is therefore to ensure that they are indeed the least restrictive or intrusive measures that are consistent with safe, humane and helpful reintegration. In that context, the Working Group took a closer look at the merits of two forms of intervention in particular: home visits and electronic monitoring.

Home Visits

Like the use of "collateral contacts" in the community to verify offenders' accounts of their activities, home visits can obviously be justified in a general way. It must, however, be recognized that such visits, and particularly so-called "surprise visits", may directly affect the rights of third parties such as family members, friends, lodgers, etc., and may require something like a "for cause" justification to obviate the charge of arbitrary intrusion into offenders' private affairs. It is argued that home visits that are not surprise visits (and to which the offender has at least tacitly consented) are less efficacious for verification purposes. That said, however, the supervisory value of surprise visits needs to be weighed against the negative effects not only on the integrity of an offender's family or residential situation but also on the personal safety of parole officers. In practice, the latter appear to take reasonable precautions to avoid placing themselves at risk or causing needless embarrassment, but we recommend that more specific direction and training be provided in all aspects of home visits and information-seeking from third parties.

Electronic Monitoring (EM)

Electronic monitoring is not at present a procedure used by CSC, but the Service is naturally aware of its use in other jurisdictions, in Canada and elsewhere, and the potential value of various forms of EM has recently been reviewed by the Solicitor General's department. Although that particular survey focused largely on the use of EM in three provincial situations, and appears generally skeptical about its claims to be "a cost-effective alternative to incarceration", the study also recognizes the difficulty of reaching any firm conclusion on the advisability of its use at the federal level at this stage.

From the standpoint of our own mandate, and given the feedback provided by other countries, we offer only two observations. While the most senior levels in CSC and the Parole Board continue to question both the effectiveness and humaneness of electronic bracelets in particular, several operational managers with whom we spoke tend to adopt a more positive attitude towards EM. In any event, in our judgement, and although we are not in a position to comment on its effectiveness, EM is not intrinsically at odds with reasonable respect of the rights of offenders.

Monitoring Mechanisms

The protection of offenders' rights in the community context currently depends on the same general mechanisms as are provided for in federal institutions: access to the internal complaint and grievance processes; access to the Correctional Investigator; and such policy-related audits as the Service from time to time includes in its regular performance evaluation schedule.

Judged purely in terms of these guarantees, we offer the following observations:

  1. the continuing availability in the community setting of the complaints and grievances processes is not well understood by offenders;
  2. in any event, they are very little used, except following a revocation, i.e. after the offender has returned to an institution;
  3. legal challenges to standard or special conditions have been few and have mostly proved unsuccessful;
  4. the availability of the Correctional Investigator's services is poorly advertised and not actively promoted;
  5. none of these mechanisms has much credibility among offenders, although most of those to whom we spoke seemed satisfied with on-the-spot remedies obtained through their case officers or house managers; and
  6. so far as we were able to determine, there have been no service-wide audits or evaluations bearing specifically on the protection of offenders' rights in the community.

Given these observations, we offer the following recommendations:

  1. that all offenders be formally advised at the time of their release that they continue to have a right to make a complaint through the CSC process, that any such complaint will be expeditiously and impartially dealt with, and that they formally acknowledge receiving this information;
  2. that CSC, in conjunction with the Office of the Correctional Investigator, explore alternative means whereby offenders may raise concerns about their correctional treatment in the community without fear of untoward consequences;
  3. that the rationale for imposing special release conditions be reviewed and, if necessary, adjusted; and
  4. that the Service incorporate in its ongoing Performance Evaluation planning regular and service-wide audits to verify that the rights of offenders in the community are respected, and that they have prompt access to internal and external remedies if they believe their rights are jeopardized.

III) Special Needs: Women and Aboriginals

It is well recognized that the relative scarcity of women and the over-representation of aboriginals in the inmate population create special human rights problems for these groups. These were dealt with in our earlier report. Less obvious may be the special needs of women and aboriginals when it comes to their gradual reintegration into the community. In general, we found CSC to be cognizant of those needs and making conscientious efforts to deal with them. Following the Report of the CSC's Task Force on Reintegration, the Service undertook to respond to the specific needs of women and aboriginal offenders within its "community strategic planning function". It seems fair to say that, at this point, analysis of those needs has been thorough and has suggested numerous positive directions.13 In spite of recent initiatives, however, the situation of many aboriginal and women offenders released into the community remains unusually difficult and practical progress has been slow.

Women Offenders

Because women offenders on conditional release are relatively few and geographically dispersed, their access to various forms of treatment or social, counseling and health support services is sometimes problematic. CSC recognizes that women - particularly those who have themselves been victims of abuse or who have young dependent children - need extraordinary and "women-centered" community support, and the Group was informed of several useful initiatives, including some that stress the use of voluntary and mutual support systems. We recommend that these be actively pursued.

At the same time, we encountered CRFs with both male and female residents, which, while apparently operating without incident, raise questions, if not as a matter of human rights law, at least with respect to the possibilities for abuse. While section 8(a) of the Standard Minimum Rules on the Treatment of Prisoners indicates that "Men and women shall so far as possible be detained in separate institutions; [and that] in an institution which receives both men and women, the whole of the premises allocated to women shall be completely separate", this requirement would appear to be limited to prison situations. It may also be argued that, in the community setting, provided it is subject to appropriate restrictions, allowing women and men to live in the same residence more closely approximates social normality and thus promotes reintegration. At the same time, such arrangements should obviously be used with caution and only with an offender's full consent, particularly if children are present. We recognize that the limited numbers of women offenders in the community may make single-sex dwellings difficult to achieve, but we recommend that CSC explore other means, such as placement with suitable volunteer families, rather than resort routinely to joint residency of men and women for lack of a better solution.

Aboriginal Offenders

In addition to being greatly over-represented in federal institutions, aboriginal offenders also tend to experience special problems in terms of their gradual release, notably:

  1. disproportionate slowness in obtaining various forms of parole;
  2. higher rates of recidivism and revocation while conditionally released; and
  3. relative weakness of community support systems.

Sections 79-84 of the CCRA recognize a legal obligation to "provide programs designed particularly to address the needs of aboriginal offenders" in both the institutional and community contexts. Furthermore, CSC has a National Aboriginal Strategy aimed at "significantly increasing the number of Aboriginal offenders who are safely and successfully reintegrated into the community". In addition to developing appropriate programming and support, this strategy attempts to give greater practical effect to the provisions of ss. 81 and 84 of the Act, which authorize CSC to enter into agreements with aboriginal communities "for the provision of correctional services," and to seek to involve particular communities in designing and carrying out aboriginal offenders' release and reintegration plans.

There is no doubt that the quality and quantity of aboriginal-specific programming and support has increased since the Act was introduced in 1992. Establishment of Aboriginal Healing Lodges for both men and women offenders is a case in point. However, the disproportion of aboriginals in the federal correctional system has hardly changed over that period. Ironically, a tendency among aboriginal offenders to dissociate themselves from many treatment programs offered in institutions both delays their release and limits opportunities to involve aboriginal communities in their conditional release in accordance with section 84. To date there have been some fifty odd such releases, in part no doubt because CSC, as the responsible authority, is anxious to ensure that publicly defensible standards of community supervision are applied.

In this sense, both the Service and the aboriginal communities find themselves on the horns of a dilemma. The intention of the Act is to counter the alienating effects of an essentially non-aboriginal justice system by giving aboriginals themselves a greater say both in responding to criminal behaviour and in remedying its effects. At the same time, CSC remains legally responsible for the outcomes of such delegation, which makes the tasks of negotiating correctional service agreements and involving particular communities slow and cumbersome. The Service is certainly aware of this situation and working to meet the intent of ss. 81 and 84. However the underlying problem remains that there is a poor fit between native concepts of crime and punishment and the essentially non-aboriginal correctional model embodied in the Act. Despite notable recent improvements, further efforts appear to be needed to make the delegation process more effective. We recommend that CSC intensify its consultations with aboriginal representatives on how best this can be done, and incorporate appropriate initiatives within its National Aboriginal Strategy.

13 See Community Strategy for Women on Conditional Release, CSC, February 1998, and Enhancing the Role of Aboriginal Communities in Federal Corrections, CSC, 1999.

IV) Victims' Rights

Neither victims of crimes nor potential victims (i.e. the public at large) have traditionally been afforded any specific legal protection by international or domestic human rights law. At the same time, victims or potential victims are presumably entitled to such personal security as can normally be assured through the criminal justice system of a free and democratic society. As a matter of Canadian law, victims of criminal behaviour have also increasingly been recognized as a group with particular needs of a broadly defined "human rights" nature. As noted earlier, this process has now led to the introduction of a Bill in Parliament to enhance victims' rights.

Under the Corrections and Conditional Release Act (1992), victims are entitled to be present - but not heard - at an offender's parole hearing, and to receive information about the status and whereabouts of an offender who is about to be released into the community (ss. 26 and 142). These disclosure provisions also apply, "with such modifications as the circumstances require", to any other person who reasonably claims to have suffered "physical or emotional damage, as a result of an act of an offender, whether or not the offender was prosecuted or convicted for the act".

In discussing the adequacy of these entitlements with representatives of victims associations, we were made aware of the following concerns:

  1. that, in the view of some, current parole eligibility requirements may release certain offenders into the community before they have achieved even a minimal standard of reform;
  2. that too little attention is given to victims' concerns about the siting of halfway houses or other accommodation in which parolees may be placed;
  3. that the victim's right to be present at the offender's Parole Board hearing ought to extend to the right to make representations to the Board and the offender, in the interest of having the latter face up to the consequences of his crime;14
  4. that the information disclosure provisions embodied in the CCRA place too much responsibility on victims to initiate the disclosure process, and that it seems unclear whether they would have sufficient prior information to be able to do so; and
  5. that in those cases where the information disclosure or victim protection system breaks down and the victim is unable to obtain a suitable remedy from the Parole Board or CSC, the victim has no clear alternative redress.

Items 1, 2 and 3 above are, strictly speaking, beyond our mandate and we can do no more than signal to CSC that they are clearly ongoing and serious preoccupations. As regards item 4, it was not apparent on the basis of our interviews, whether victims are systematically provided with an explanation of the process whereby they may avail themselves of the rights embodied in the Act. The most current information brochures on the subject, Victims - Questions and Answers about Corrections and Conditional Release (1993), and Information for Victims (1993) appear to assume that the onus is on the victim to learn what the law provides and to trigger the disclosure process. To say that victims may obtain this information from any NPB or CSC office hardly answers the question.

It is not suggested that CSC has an obligation to establish and maintain a list of all victims, direct or indirect, whether or not they wish to be advised of the offender's progress through the correctional system. However, we would recommend that the Service, the Parole Board, and any other parties to federal sentencing, specifically provide interested victims with a plain-language explanation of their rights, and the process for making a request to exercise them, at the earliest and most convenient point in the sentence administration process.

The Group also recognizes the substance of victims' contention with respect to seeking redress for administrative lapses. While victims could, of course, seek remedies in court or raise the matter with their elected representatives, we recommend that CSC and NPB examine the need to provide a mechanism of independent review to take account of such concerns. A similar suggestion has also been put forward recently by the Standing Committee on Justice and Human Rights in its Victims' Rights report.

14 This possibility is among the proposals currently before Parliament.