Discussion

There are competing and overlapping systems in place with respect to the post sentencing of offenders. On the one hand, the National Parole Board is the “human side”, examining rehabilitation and reformation.

On the other hand, Parliament has created a cold, calculating and utilitarian system of statutory release for most offenders. They are automatically released on conditions after serving two third of their sentence.

Canada is not alone in having this type of contradictory approach. Between June 29 and July 5, 2007, Government of the United Kingdom had to release 1,700 inmates because of over crowding in the jail system.[1] Of these individuals, 344 were convicted of violent attacks, 24 robberies and 149 burglaries.[2]

What is clear is that governments are trying to sell a system that makes the public feel secure but at the same time refusing to spend the monies necessary to back up their words. A parallel and often contradictory system is in place to save the government money.

The public deserves better. What is needed is a single system based on a coherent philosophy, what ever that system is.

It is the position of the author that the system that should remain is that of parole, as it is functioning under the National Parole Board. There is no place in Canada for a system of automatic statutory release.

The criminal justice system is built upon deliberation. Judges must give reasons for their decisions. Appeal courts do the same. Sentencing is considered so important that Part XXIII of the Criminal Code[3] mandates that a sentencing court take into account certain sentencing principles, failure to do so would be an error of law.

Another example of deliberation is parole ineligibility. A sentencing judge has limited authority to adjust the period of ineligibility for an offence for life imprisonment pursuant to s. 743.6 of the Criminal Code. However, the Supreme Court of Canada has indicated that delayed parole is an option out of the ordinary and that the sentencing judge must engage in a double weighting exercise.[4] Written reasons are to be given at the end of the process and said reasons must state with sufficient clarity the reasons for the delayed parole order.[5]

The bottom line is that again, these are examples of decisions based on reasoned deliberations: risk factors and needs areas, institutional behavior, and concrete results from an offender’s attendance at programs and through treatment, circumstances surrounding previous breaches of release and release plans and community management strategies to be used during supervision.[6]

Since November 1, 1992, the Corrections and Conditional Release Act started to require the National Parole Board to maintain a registry of its decisions along with the reasons for those decisions. Anyone may request, in writing, a copy of these decisions.

In the last five years along, the National Parole Board has made over 21,000 written decisions on parole applications.[7]

There is also the human factor at play here. When a sentencing judge is deliberating upon a sentence one cannot but suspect that a factor in sentencing is the statutory release of an offender. Does a sentencing judge give an offender a higher sentence than he would normally because of statutory release?

Is this so unbelievable? Without statutory release, would it lead to lower sentences for most offenders? Statutory release may be acting as an inflationary factor in terms of sentence. While most judges are clever enough to watch their language, there have been judges who has given reasons in the sentencing an offender to a longer sentence because of his eligibility for automatic statutory release and of course reversed on appeal.[8]

In their five year review of statutory release, Corrections Canada make an important admission that in the position of the author, underlies the key rational for statutory release:

Statutory Release and Offender Population Management

Prison crowding and management of the offender population are key issues for CSC. Relatively high rates of incarceration in Canada, combined with pressures for fiscal restraint create complex challenges. In this context, SR, that is, the release of all offenders at the two-thirds point in their sentence (except those who are detained) becomes an important measure for reducing the number of offenders in federal institutions while ensuring controlled reintegration of offenders.[9]

According to the Sub-committee on Corrections and Conditional Release Act of the Standing Committee on Justice and Human Rights in May 2000, the committee recommended a change to automatic statutory release. In their report, the committee recommended that:

RECOMMENDATION 11

The Sub-committee recommends that the Corrections and Conditional Release Act be amended to require Correctional Service Canada to review all cases eligible for statutory release in order to determine whether they should be referred to the National Parole Board for a detention review.

RECOMMENDATION 12

The Sub-committee recommends also that the Corrections and Conditional Release Act be amended to require the National Parole Board to review all cases eligible for statutory release in order to determine whether special conditions need to be attached to the inmate’s release and, if so, to identify these conditions.[10]

The Committee also recommended that the statutory release provisions must be reviewed in depth during the next review of the Corrections and Conditional Release Act.[11]

Clearly, members of Parliament are moving away from an automatic statutory release mechanism. There is a move towards finding deliberative principles that need to be considered prior to a release before an offender’s sentence has been completed. As we have seen earlier, this approach is consistent within the criminal justice system.

The courts have even started to protect the right of an offender who is denied statutory release without due process. In Illes v. Kent Institution, the British Columbia Supreme Court had ruled that revoking an offender’s statutory release without a hearing was unconstitutional. Further, the court indicated that:

[M]y view, the revocation of the petitioner’s statutory release without his being given the opportunity to be heard specifically on whether the circumstances warranted the deprivation of his liberty for at least a year clearly offended his s. 7 Charter rights. It is no answer to say that he had a hearing when he was sentenced by the Provincial Court.

…

No clear explanation is attempted of why some offenders would, in the absence of s. 135(9.1), serve only a minimal part of a long sentence, or why the remedy for that and the need to denounce re-offending during statutory release lies only in depriving all offenders of a hearing. While I accept that the objective of the section is one of public protection, I do not see how the means of achieving it that have been employed can be said to be proportionate. I question whether, in revoking the petitioner’s statutory release without a hearing, any one part of the three-part test of proportionality can be said to be met but, it appears to me clear that, at very least, it cannot be said that his right not to be deprived of his liberty has been affected as little as possible.

I can see no sound reason why, in order to protect the public, all offenders who have been sentenced to some term of imprisonment for offences committed during statutory release must be deprived of a hearing to determine whether they should be imprisoned for what can be at least a year regardless of their circumstances. And I certainly do not see why only those who are sentenced to a term of imprisonment, as opposed to those having some other form of sentence imposed, should not be heard in the same way that all other offenders who breach the conditions of statutory release are heard before their release is revoked. [12]

Deliberation, due process and reasons are turning statutory release into a more reasoned process.

If that is the case, why should automatic statutory release still exist? Its existence can only be rationally defended by crude economics and nothing else. The public deserves more.

In England, the courts have reminded correctional authorities and the public that the courts will always have something to say about statutory release:

When considering this question we think it is important to bear in mind that the statutory provisions governing the early release of prisoners are concerned with the administration of criminal justice in general; it is the order of the court which provides authority for the detention and imprisonment of the person named in it, not the statutory provisions as such, although they are engaged once such an order has been made and dictate the manner in which the order is carried into effect.[13]

Conclusions

The post-sentencing regime in Canada is convoluted. There is parole on one hand which engages in a deliberative scheme judging applicants on their merits within a certain framework.

On the other hand, there is automatic statutory release. Parliament created a scheme were by most offenders are automatically released after serving two thirds of their sentence.

As we have seen there is an institutional battle at play. Those that are entrusted in regulating the prison population trumpet the success of statutory release. Those that are opposed, argue, through their numbers, the failure of statutory release.

As a crass form of prison population, statutory release serves its purpose. However, this approach is inconsistent with how we view the criminal justice system works as a whole. Furthermore, the statistics indicated that those being statutorily released are committing serious crimes and are not benefiting from proper supervision.

The time has come for statutory release to be eliminated as a post sentencing option. Offenders ought to serve the sentencing handed to them by the sentencing judge. If an offender is to be released prior to the completion of his sentence, let it at least be through a deliberative process that is held accountable to the public.

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