Notes for an Address

Post-Sentence Issues in the Federal Correctional System

Mr. Howard Sapers
Correctional Investigator of Canada

Defenside Conference: Back to Basics from the Backbench
Hosted by Nova Scotia Criminal Lawyers Association

May 23, 2014
Halifax, Nova Scotia

Thank you for the invitation to meet with you today.  I am delighted to be here to address post-sentence issues in the federal correctional system in my capacity as Correctional Investigator. 

In my remarks today, I want to take a closer look at the impact of the government’s criminal justice legislative and policy agenda on federal corrections.  I will focus on conditions of detention in context of the overall growth in the size, complexity and diversity of the offender population.  Drawing from some recent investigative reports by my Office, I will identify some areas of concern where I think the legal defence community could be more engaged in post-sentence issues, particularly those that speak to access to justice issues and fair and humane treatment for convicted persons.

Let me declare my bias up front.  Perhaps more than ever before, fair administration of a sentence is an issue of concern that requires attention.  The work of defense lawyers should not stop after a guilty plea or verdict.  Hopefully, if I do my job here today well, I will have convinced you that prison law is an area that demands more engagement and representation from your profession.

It is not by accident that prisons are usually located in isolated places.  They are largely closed to public view and shrouded in secrecy and security. 

They house many voiceless and largely disenfranchised, disadvantaged people. They function behind bars and barriers which are purposefully designed as much to keep prisoners in as outside observers out.  Prisons are “total” institutions and they represent the ultimate expression of state power.

In such systems, the potential for the abuse of  authority is very real.  Historically, there can be no doubt that this operating reality has, on occasion, masked unfairness, inequity and even brutality from public view.  The history of corrections in this country reminds us that outside intervention by the legal community, courts and Parliament, independent oversight and external review have been necessary to make progress.  External oversight assists in the maintenance of a safe, humane and accountable correctional system.

Oversight within the prison environment demands that the independence of the Ombudsman be clear and unequivocal.  The primary function of my Office is to investigate and bring resolution to individual offender complaints.  The Office was in fact created out of the violence and unrest that plagued Canada’s prison system in the early 1970s.  The Office was established in 1973 to resolve complaints quickly, impartially and informally – in response to a poor performing internal complaint and grievance system, and as an alternative to the formal, costly and slow courts system.

As Correctional Investigator, I have statutory authority to conduct investigations into problems of offenders related to decisions, recommendations, acts and omissions of the Correctional Service of Canada. Decisions to commence, or terminate, as well as the methods used to conduct an investigation, are at my discretion.  I am fully independent of the CSC and the Minister and Department of Public Safety.

The Office is an oversight, not an advocacy body; my staff does not take sides when investigating complaints.  We look for compliance, fairness and legality. We view corrections through a human rights lens.  

The Office is not an armchair critic of the CSC.  It is an essential component of the legal framework that governs federal correctional practice.  It is not without purpose that the Office’s powers and authorities are embedded in the same statute that governs the Correctional Service.

It is important for me to remind you that I do not issue a report card on the Correctional Service. My job is not about reporting on CSC success stories.  I investigate complaints and look at how the Service responds when things go wrong.  There are thousands of positive interactions between CSC staff and offenders every day and lots of hard and sometimes even heroic work resulting in the best possible outcomes, but this my focus.   

My team of investigators has full and unfettered access to CSC facilities, staff, documents and offenders.  They regularly visit federal institutions to meet with both offenders and staff.  Last fiscal year, they cumulatively spent 344 days inside federal penitentiaries.  We conducted more than 1,400 interviews.  We reviewed 1,740 use of force reviews and 185 mandated reviews of deaths in custody, assaults and incidents resulting in serious bodily injury.

The agenda of the federal government in the area of criminal justice continues to be clear:  it is positioned as being about law and order and tough on crime.  The anti-crime legislation focuses on accountability and punishment for offenders and increased recognition of victims of crime. 

In my mind, this focus reinforces, not diminishes, the need for independent oversight.

In recent years, there has been a virtual onslaught of criminal justice bills.  Let me take a minute to run through some of the more prominent legislative changes made over the last five years.

Truth in Sentencing Act (October 2009)

This Act amended the Criminal Code to limit the credit a judge may allow for time spent in pre-sentence custody that would reduce the time to be served if sentenced to prison or jail. 

Limiting Pardons for Serious Crime Act (June 2010)

The Act replaces “pardon” with the term “record suspension” and extends the ineligibility periods for applications to five years for summary conviction offences and to 10 years for indictable offences.  It also makes those convicted of sexual offences against minors and those who have been convicted of more than three indictable offences ineligible to attain a pardon.

One of the policy effects of this measure was a substantial increase in the cost to apply for a pardon which has gone from $150 to $631, a change that came into effect in March 2012.   Predictably, pardon applications have dropped significantly. 

The Parole Board is still trying to clear a significant backlog of applications received before the fee increase went into effect.  The overall backlog now exceeds 12,000 applications.  

Abolition of Early Parole Act (March 2011)

This Act amended the Corrections and Conditional Release Act to retro-actively eliminate the possibility of accelerated parole review at the one-sixth point of the sentence.  In the March 2014 Supreme Court of Canada Whaling decision, the court ruled in favour of offenders who would have been eligible for Accelerated Parole Review prior to coming into force of this Act

As a result of this decision, the CSC is now required to review and bring more than 100 retroactive cases to the Parole Board for decision in a timely manner.  

Serious Time for the Most Serious Crime Act (March 2011)

This Act repealed the possibility of judicial review for parole after serving 15 years under the “faint hope” clause for life-sentenced offenders.

Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act (March 2011)

Allows the sentencing judge to decide periods of parole ineligibility to be served consecutively for offenders convicted of one or more murders. With the coming into force of this Act, it is now possible to stack parole ineligibility periods at time of sentencing in cases involving multiple murders up to a maximum of 75 years in prison. 

Using these provisions for the first time, an Alberta court recently handed down a sentence of life in prison with no chance of parole for 40 years – the longest sentence ever in Canadian history. 

Safe Streets and Communities Act (March 2012)

This Act isactually an amalgamation of nine separate pieces of legislation that had been previously introduced, but not passed, in earlier Parliaments.  It is considered a “fundamental pillar” of the Government’s anti-crime agenda.  It is most associated with the expansion of mandatory minimum sentences in areas involving a range of sex, drug and gun offences.

It also included an expansion of the categories of offences subject to detention until the end of sentence, such as child pornography, luring of a child, aggravated assault of a peace officer, breaking and entering to steal a firearm, or a terrorist offence under the Criminal Code.

Though less well known, this Act amended several principles of the 1992 Corrections and Conditional Release Act.  I will have more to say about these changes in a few minutes.

An Act to Amend the CCRA (Vexatious Complainants) – March 2013

Brought forward as a Private Members Bill, this legislation allows the Commissioner of CSC to designate an offender a “vexatious complainant” if he or she persistently files complaints or grievances that are “frivolous, vexatious or not made in good faith.”  This designation prohibits an offender from submitting any further complaint or grievance, unless the offender has received permission from the Commissioner to do so.

Increasing Offenders’ Accountability for Victims Act (October 2013).

This Act changes the Criminal Code to require all offenders who receive a new sentence as of October 24, 2013 to pay a mandatory victim surcharge.  Controversy about some recent decisions suggests that this provision may soon be considered by the Supreme Court.

Cumulatively, these legislative initiatives have added up to more Criminal Code offences, longer sentences and extended periods of incarceration.  There is diminished judicial discretion through the expanded use of mandatory minimums. 

Access to pardons has been significantly limited and a tightening of the conditional release system across the board has reduced access to the community for an increasingly wide number of offences. 

There are other proposals on the books or being considered that may or may not see the become law. 

For example, a private member’s bill now before the House, Bill C-587 entitled “Respecting Families of Murdered and Brutalized Persons Act,” would amend the Criminal Code to provide that a person convicted of the abduction, sexual assault and murder of the same victim in respect of the same event or series of events is to be sentenced to imprisonment for life without eligibility for parole until the person has served a sentence of between 25 and 40 years as determined by the presiding judge after considering the recommendation, if any, of the jury.

In its latest Speech from the Throne, under the heading “Supporting Victims and Punishing Criminals,” the federal government signaled its intention to bring forward tougher legislation that would “end the practice of automatic early release for serious repeat offenders” and to “change the law so that a life sentence means a sentence for life.”  While it is not yet clear what such measures may mean in practice, it does signal yet even more and extended incarceration. 

An equally wide-ranging series of policy measures have recently been implemented.   For federal inmates, these changes mean:

  • paying more to make phone calls from prison
  • increases in room and food deductions
  • elimination of incentive pay for work in prison industries
  • cancellation of social events
  • closure of prison farms
  • reduced access to the Mother – Child program
  • increased case loads for Institutional Parole Officers

Let me focus on inmate pay for a moment.  My Office estimates that a federal inmate working full-time in prison industries and institutions makes about 40 cents an hour after mandatory deductions.  Inmate allowances have not increased since their introduction in April 1981.  In 1981, a standard basket of canteen items could be purchased for $8.49.  Today, that basket of goods costs more than $62.00, an increase of over 725%. The maximum amount that an inmate can earn while gainfully employed in a federal penitentiary is set at $6.90 per day.  A bottle of Buckley’s cough syrup costs more than a day’s pay.

In their totality, policy and legislative measures have generated considerable public interest, and have provoked strong reaction over their perceived direction, cost, necessity and impact, not least of which because they have coincided with year-on-year declines in the national crime rate.

The net, cumulative result of these measures has been predictable – more offenders than ever before are serving a greater portion of their sentence behind bars.  There has been an increase in the prison population and a decrease in community supervision and support for those released.  Today, nearly three-quarters of all federal offenders gain release by statutory release, having served two-thirds of their sentence behind bars.

Day and full parole grant rates have declined 20% in the last five years.  The rate of statutory release for federally sentenced Aboriginal offenders has now surpassed 80%. 

A quick look at some correctional statistics will give an overview of some of the changes in the federal correctional system over the past decade.

  • The overall offender population has increased by 17.5%.
  • The Aboriginal offender population has increased by 47.4%.  Aboriginal people now represent 22.8% of the total incarcerated population.
  • The black offender population has increased by 83% and now represents nearly 10% of the total federally incarcerated population.
  • The Caucasian offender population decreased over this same period by 4%.
  • The women offender population has increased by 66.8%.
  • The Aboriginal women’s population has increased by 112%

The profile of the men and women who are incarcerated has changed over the past decade.  The custody population is aging, it is more addicted, more physically and mentally unwell and more culturally diverse.  One in five inmates is aged 50 or older.   80% of offenders have a serious substance abuse problem.  Over half reported that alcohol or drug use was a factor in the commission of their offence. 

In 2012-13, upon admission 61% of offenders had an identified education upgrading need, which is defined as less than Grade 12.  Of the 5,043 offenders assessed at intake in 2012-13, 37% had Grade 8 or less education. 

This kind of profile suggests most federal offenders are not very well-equipped to represent or advocate for themselves once sentenced.

Allow me to return to the Safe Streets and Communities Act, the omnibus crime bill which significantly amended several key provisions of the Corrections and Conditional Release Act

Since coming into force in March 2012, the CSC and the Parole Board of Canada are now required to consider the “nature and gravity of the offence,” as well as the “degree of responsibility of the offender” in case management decisions.  The constitutional standard requiring correctional administrators to adopt the “least restrictive” option in managing individual and public safety risk was also struck from the principles section of the Act and replaced with less certain language that speaks to “necessary and proportionate” measures. 

The Act was further amended to increase offender accountability by adding a requirement that an offender must complete a correctional plan, a document that sets out behavioural expectations, objectives for program participation, and the meeting of court-ordered obligations.

When I appeared before the Parliamentary Committee reviewing this legislation I noted that the “least restrictive” principle is one of those “golden rules” of corrections.  On a practical basis, the Office uses this principle to review and investigate some of the most problem plagued correctional practices in the federal system including involuntary transfers, segregation placements, security classifications and use of physical restraints.  

It is also the standard by which we assess whether CSC has used an appropriate and lawful degree of force when managing a security incident.

Precision of language matters in corrections.  The removal of the phrase “least restrictive” amounts to a dilution of the primary legislation. It is, in my view, not in keeping with maintaining a fair, modern and accountable correctional system.  Clear language means clear direction.  Ambiguity means confusion and this can lead to less accountability.

My Office is beginning to see and feel the impact of these changes. In some cases, CSC decision makers have too zealously considered the “nature and gravity of the offence” and “degree of responsibility of the offender” leading to higher than necessary security classifications and the severity of detention conditions.  The job of corrections is to administer the sentence imposed by the courts, not add to it.

As population management challenges and pressures mount, conditions of detention and institutional climate have also deteriorated.  Use of force interventions, inmate fights and assaults, offender grievances and segregation placements are all trending upward in recent years.  

  • Since March 2009, the proportion of offenders double bunked has increased from 9.9% to 19.2% nationally.
  • Use of force incidents have increased by 91%.
  • Use of gas during these incidents has increased from 89 to 1,304.
  • Incidents of self-injury have increased by 236%.
  • The number of inmate assaults has increased by 124%.  Assaults on staff having increased by 66%.

With respect to use of force, an increasing number of interventions involve offenders with an identified mental health problem or concern.  Incidents involving self-injurious behaviour represented 19% of all use of force interventions reviewed by my Office last fiscal year.  This number is much higher for incidents involving federally sentenced women.  In 2013-14, nearly 30% of all use of force interventions involved an offender with a mental health concern as identified by the Correctional Service

Our prisons are increasingly serving as mental health facilities, yet CSC does not have adequate staffing, training, infrastructure or resources to meet the needs of those who, in any other setting, would be considered patients.

Despite being a high-risk practice, CSC policy still allows for long-term segregation of mentally disordered, self-injurious and suicidal inmates.  A disproportionate number of suicides continue to occur in segregation or observation cells where surveillance and monitoring is supposed to be close and constant.

With respect to Aboriginal and Black inmates, I have noted that these offenders are disproportionately over-represented in maximum security, segregation and over-involved in use of force interventions. Post-sentence, few federally sentenced Aboriginal inmates benefit from consideration of Aboriginal social history (or Gladue factors) when the retained liberty or security of the person interests of an Aboriginal offender are at stake.

Closer to home, 22% of the count at Atlantic Institution, a maximum security facility near Renous, New Brunswick, is Aboriginal.  Regionally, the percentage of the federally sentenced population in Atlantic Canada is 12.44%.  There were 883 admissions to segregation in the Atlantic Region last year and 3092 recorded security incidents.  There were 43 lockdowns at Springhill (NS) Institution, a medium security facility that houses mostly younger offenders; by contrast, there were just 2 lockdowns at Atlantic Institution.  

In my first Annual Report to Parliament ten years ago, I noted that both Ontario and Atlantic region’s treatment centres, housed within Kingston Penitentiary and Dorchester Penitentiary (NB) respectively, “were hindered in their ability to provide adequate treatment to inmates because of their physical configuration and should be replaced by appropriate facilities.” KP was closed last year while Dorchester, a facility that first opened in 1880 and now the second oldest operating federal prison in Canada, is still treating people with significant mental illness in less than adequate conditions of confinement. 

Let me conclude by stating that post-sentence access to justice remains important.  Despite non-adversarial options available to inmates, including my office, for resolving complaints and grievances, some matters may be best addressed through the courts.  Unfortunately,    there is limited support enabling federal inmates to bring their issues forward.   There is inadequate access to Legal Aid and few legal clinics have expertise working with sentenced individuals.  Frankly, from my experience, there is scant interest in this kind of work.  This results in too many inmates representing themselves, which can create additional concerns for both the complainant and the courts.  

Few cases ever go before the Federal or Superior courts for reasons stated above.  In the most egregious cases, CSC tends to settle (with non-disclosure clauses) out of court.  In many other matters, the issues become moot before they can ever get before the courts.

I take encouragement from some recent Supreme Court of Canada decisions.  In Khela, the Court ruled that the decision to transfer an inmate to a higher security penitentiary must, among other requirements, be procedurally fair.  At issue in this case was whether federal prisoners should have access to the provincial Superior Courts to pursue habeas corpus applications.  Canada’s highest court ruled unanimously that they do. 

Following this decision is a significant recent ruling by the Supreme Court of Nova Scotia in the habeas corpus case of Richards v. Warden of Springhill Institution.  Heard before the Honourable Justice Van den Eynden in March 2014, it was found that CSC’s decision to reclassify Mr. Richards to a higher security rating and place him in segregation was both unreasonable and unlawful.  Significantly, Mr. Richards’ habeas corpus application to the Nova Scotia court was allowed to be pursued without further delay.  As noted by the Honourable Justice, “a decline of jurisdiction in the circumstances of this case would be offensive to the fair and efficient working of our Canadian legal system.”  Further, “such applications require timely access to justice; not an inflexible approach by the Courts.

Courts are not to stand in the way of the enforcement of such an important remedy, neither should the Respondents. Courts are mandated to ensure timely access to justice in these matters.” 

As I understand it, Mr. Richards was self-represented.  As mentioned, this is not uncommon.   As conditions of detention become more severe and sentences longer, I fully expect more federally sentenced offenders to want to take their cases to the Superior Courts.  There are many worthy legal causes inside a prison that could benefit from more involvement by the legal profession, but very limited time and money to pursue such causes. 

The concept that offenders retain rights “except for those”  as the UN Basic Principles for the Treatment of Prisoners tells us in Article 5,  “limitations that are demonstrably necessitated by the fact of incarceration” is  at risk and this surely should concern us all.

Representing convicted offenders in correctional law matters sends a strong message about the legal community’s commitment to the protection of human rights and upholding the rule of law inside prisons. I wish you success in this work.

Thank you for the invitation to speak with you today and for your attention.