History of Parole in Canada
Table of contents
Part 1 - The Beginning of Parole in Canada
The 1890s were a time of energy and optimism in this country. Prime Minister Wilfrid Laurier promised that the 20th century would be the century of Canada. People looked forward to a new era of prosperity and progress, and they were ready to try new things. The public mood was exactly right for the introduction of parole.
On , An Act to Provide for the Conditional Liberation of Convicts - the Ticket of Leave Act - was enacted by the Canadian Parliament.
It shall be lawful for the Governor General by an order in writing under the hand and seal of the Secretary of State to grant to any convict under sentence of imprisonment in a penitentiary a license to be at large in Canada, or in such part thereof as in such license shall be mentioned, during such portion of his term of imprisonment, and upon such conditions in all respects as to the Governor General may seem fit; and the Governor General may from time to time revoke or alter such license by a like order in writing.
The Canadian Ticket of Leave Act was based almost word for word on the British legislation. There was no reference in the text to the purpose of conditional release, though ticket of leave was generally understood to be a form of pardon.
Prime Minister Laurier, in introducing the new legislation, described the kind of person the act was designed for:
…a young man of good character, who may have committed a crime in a moment of passion, or perhaps, have fallen victim to bad example, or the influence of unworthy friends. There is a good report on him while in confinement and it is supposed that if he were given another chance, he would be a good citizen.
This statement reflected the growing concern about the effects of imprisonment on young and first offenders. Penitentiaries, many people believed, were schools of crime where the (relatively) innocent should not be kept.
There were other considerations as well. Parole could be used to mitigate disparities in prison sentences, which caused a great deal of discontent among prison inmates. It was also cheaper to release some inmates early rather than maintain them in prison at $254 a year. The sooner a man could be paroled, the sooner he could get back to supporting himself and his family.
The act did not set any minimum term of imprisonment before parole could be granted. Nor did it make any provision for supervision, though prisoners on ticket of leave had to register with and report regularly to the local chief of police. They also had to agree to obey the law, abstain from leading an "idle and dissolute life" and avoid the company of "notoriously bad characters."
The application procedure for parole was the same as for pardons. Full investigation of each case was the responsibility of officials in the Department of Justice, and administrators were allowed considerable leeway. Parole was granted at the discretion of the Minister of Justice — there were no guidelines. In practice, it was pretty much reserved for first offenders, the so-called accidental criminals.
Because ticket of leave was considered an experiment, the government took a cautious approach at first. There were fears that parolees might discredit the system by behaving badly and that undeserving inmates might make a cynical use of the system.
In the beginning, the Governor General granted paroles on the advice of Cabinet as a whole. The act was later amended so that the power to advise the Governor General was limited to the Minister of Justice. This was a significant departure from traditional practice in the use of executive clemency; it was an attempt to separate parole decisions from politics. Even so, because conditional release was still in the hands of an elected minister, public opinion would still have a strong, and sometimes questionable, influence on policy.
The First Parolees
The first person to be granted ticket of leave in Canada was Henry A. Clermont, who had been convicted of stealing a letter. On , he was released from St. Vincent de Paul Penitentiary in Montreal.
Of the 71 people granted tickets of leave (or licences) in , only five had their licences revoked for non-compliance with conditions, and only seven forfeited their licences because of a subsequent conviction. The other 59 parolees went on to complete their sentences in the community.
The experiment appeared to be a success. Over the next decade, the number of licences granted grew at a rate greater than the increase in the prison population as a whole.
Brigadier Archibald and the Great Work Ahead
In the early 1900s, Canada was sparsely settled. Keeping track of men on tickets of leave was difficult and the authorities relied on parolees to report every month to the police. This had its drawbacks, and when the Salvation Army offered to take over parole supervision in some places, the Department of Justice was glad to accept.
From on, the department worked more and more closely with the Salvation Army's Brigadier Walter Archibald, who directed the church's Prison Gate Ministry in Toronto. Archibald's methods impressed the department so much it offered him the newly created position of Dominion Parole Officer in . He accepted with pleasure, eager for
"the great work ahead."
Archibald's annual salary was $2,000 and he earned every cent. At a time when travel was still slow and arduous, he crisscrossed the country, interviewing inmates and assessing their potential for early release. In a typical year, , he visited all the penitentiaries and met with 235 inmates. He also visited several jails and the reformatories under provincial administration. In eastern Canada alone he visited convicts or ex-convicts in Montreal, Quebec City, Moncton, Truro, Sydney, North Sydney, Glace Bay, New Glasgow, Stellarton, Westville, Pictou, Charlottetown, Crapaud, Halifax, Liverpool, Bridgewater, Dartmouth, Digby, St. John, Sherbrooke and a few smaller places.
Not surprisingly, he wore out two leather suitcases in five years and in had to petition the department for replacements.
The London Advertiser called him
"a man of magnetism and strong sympathies." His heartfelt concern for convicts impressed everyone. Archibald would keep in touch with parolees after their release and frequently found them homes and jobs. He also advanced them money when they needed it, often out of his own pocket.
In he reported that he had
…visited Henri Auger in Montreal and found him ill and unable to work at any employment,… consequently I assisted him… Joseph Boucher was in dire need here in Ottawa last month. He was released from Central Prison and seemed anxious to get employment, which has been found for him. He has a wife and two children depending on him for support, and I found his case deserving … Basil Hewitt was released from Victoria Jail last December and met with misfortune. I made inquiries through reliable people in Victoria and consequently gave him financial assistance.
In one case, he escorted a parolee who was dying from consumption all the way from St. Vincent de Paul Penitentiary in Montreal to his home in the United States. In a letter to Archibald, the man wrote:
I take the pencil in my hand today to write you a few lines to let you know that I got home allright and save and I thank you sir for your kindness to me and giving yourself so much trouble. I thank you with all my heart and soul and God Bless you all your life time so I will close my letter now by say Bless you for your kindness.
I remain, yours truely, Mr. Joseph Tetrault, Whitsinville, Massachusetts [original spelling]
Archibald also used his influence to help convicts who were facing corporal punishment. In , he wrote to Minister of Justice Charles Fitzpatrick on behalf of William Page, who had been sentenced to 10 years and 60 lashes for burglary. The custom was to give half the lashes on arrival and half on discharge.
This young lad is worrying himself sick over the prospect of having to undergo the lashes again, and I think if this portion of the sentence could be remitted, and the intelligence conveyed to him, it would prove helpful to both his mind and body.
Indulgence Rather than Rigour
As well as overseeing the granting of parole and the welfare of ex-convicts, Archibald also had to work at public relations, giving speeches to community organizations and writing articles on the topic of conditional release.
In , an article by Archibald appeared in the Canadian Municipal Journal. Archibald began "The Parole and Indefinite Sentence System" with a mission statement:
To strengthen the repressive action and at the same time introduce more humanity into the operation of our laws — to sometimes ask for indulgence rather than rigour, without abandoning any of the indispensable guarantees of social order and of justice — is the paramount principle and practical object of the Parole System of Canada.
Archibald agreed that prisons were schools of crime and said
"too great care cannot be taken in sending a man or a woman on a first offence." He maintained that only people who were dangerous to society should be imprisoned, and then only for as long as they continued to be dangerous. Since this could not be determined in advance, he favoured the indeterminate sentence.
Advocates of parole were often accused of blind idealism and excessive sentimentality. This made Archibald bristle:
I have nothing to do with that speculative philanthropy which confounds moral will with disease, and finds the greatest criminals generally to be the greatest unfortunates, deserving, not chains, but tears and release… a system which does not inflict punishment is a dangerous menace to both citizen and state.
And yet he believed that people could change:
I know perhaps as well as anyone engaged in prison work that there are some of the sick who do not wish to be cured (I mean incorrigibles who need to be kept where they cannot do nay harm) but this is no argument that all who are sick are incurable and that there are not means within our reach to help in their restoration. Judging from years of experience, I just say that perversity is the exception.
Not everyone was swayed by the Dominion Parole Officer's eloquence. A Montreal Star editorial on , asserted that:
The moment society steps beyond the strict limits of self-protection, the danger line is passed… Society must exist if it is to reform anybody, and society must be protected if it is to exist… If reformation is to be the "first object" and not the protection of society, surely it becomes necessary to leave the murderer unchanged that he may be sent to some coddling institution where he will be taught that killing is rude and that good citizens love one another. Then he will be let out in a year or two "cured" and all timid persons will take to the woods.
The police were also sceptical. As in England, many people in the law enforcement community were suspicious of the parole system from the start. Without much evidence, they claimed that men on ticket of leave were either driving up the crime rate or living off public charity or both.
If parolees did go robbing or begging, it may have had something to do with the constant harassment - amounting sometimes to persecution - that they often faced from the officers of the law. Take the case of a certain Mr. Holden, who had been employed for two years as an engineer by the Windsor Hotel in Montreal. The police came around to inform his employer that Holden was an ex-con and that he was likely to blow the hotel safe sky-high. Holden was fired, and had to revert to crime to survive.
Archibald had bitter words for the police in a memo to the Justice Minister in :
Those engaged in the oversight of paroled convicts have had good reason to complain of the interference and overzealousness of many subordinate police officers. Their anxiety to advertise the status of prisoners on parole and worry them with unreasonable restrictions as to their movements has been attributed to ignorance of their duties and the lack of definite instructions from their superiors… In view, however, of the reports of the views expressed at the recent meeting of the Chiefs of Police at Toronto, it seems fair to assume that the hostility to the system of parole extends to those in authority and that indiscreet conduct of the subordinates is due to the sympathetic connivance, if not the direct authority, of their superiors.
Tension and mistrust between the police and parole authorities would persist into the 1970s and beyond.
In the Remission Branch was established in the Department of Justice to handle all matters of clemency, including parole. Archibald continued to travel for the Branch, despite a life-threatening bout with typhoid fever, heart trouble and a serious operation. In , he was appointed as a judge of the Juvenile Court in Ottawa, where he worked for more humane treatment of young offenders. When Archibald died in , H. W. Cooper, the warden of the Manitoba Penitentiary, said,
"The department has lost an officer who had completely captivated the affections of the inmates of the Penitentiaries, and one in whom they had reposed confidence and trust."
In retrospect, many would look back on his era as a golden age.
The Aftercare Agencies
People began to see, more than a century ago, that men and women coming from prisons had to face very serious problems of readjustment. A few began to help, usually on a voluntary and individual basis. More organized efforts were made by religious groups.
The Salvation Army
The first representatives of the Salvation Army came to Canada in . Heeding the call of Jesus to visit those in prison, they organized prayer meetings for inmates.
In the words of its founder, General William Booth, the Army was "well qualified to work in corrections since as a religious body it had always had some of its members in jail for conscience sake." Booth, on a visit to Canada in , said:
"I hope the time will come when there will be a Salvation Army officer at the prison gates to take charge of every prisoner as soon as he is liberated."
In , Booth's social treatise, In Darkest England and the Way Out, advocated a number of innovative programs in the field of corrections. It proposed establishing a ticket of leave program (not to mention legal aid for the poor, alternative programs in the community, employment bureaus for released inmates, etc.).
By , the Salvation Army had free access to the five penitentiaries. In , the system Archibald had developed for parole supervision for the Salvation Army was adopted by the federal government.
In the early years of the ticket-of-leave system, the Salvation Army was by far the most active organization in Canada in the field of prisoner aftercare. It was the first private group to offer to supervise parolees. Salvation Army officers acted as Dominion Parole Officers until the position was abolished in .
In the Canadian criminal justice system, Salvationists were to serve as prison chaplains, probation officers, parole supervisors and administrators of halfway houses. More and more people would be entrusted to the Salvation Army as an alternative to incarceration.
Part 2 - Conditional release in Canada during the 1920s and 1930s
In the first few years of this century, scientific developments, especially in psychology, further strengthened the argument for parole. Proponents of the "new criminology" maintained that criminal behaviour and ingrained habits caused actual physical changes in the brain; changes that could be reversed by reformative treatment. It was a time of relative confidence in the power of science to solve all social problems.
After the Great War, a certain malaise set in. The slaughter in the trenches had demoralized the Western world. Faith in progress and human perfectibility was shaken. Rapid urbanization and industrialization led to a sense of dislocation. The crime rate went up. People felt that the world was getting out of control. This anxiety, as it always does, led to a conservative backlash. Increasingly, parole came under attack.
Fragmentary, and in some cases, false information, contributed to the impression that the Remission Branch was unduly lenient. At first, the demands for greater severity came from people in the justice system: judges, police chiefs and the RCMP. In , for example, Mr. Justice William Mulock of the Ontario Supreme Court declared:
"The liberal use of the parole system may have robbed punitive law of its terrors for evildoers."
Efforts by the Remission Branch to set the record straight were unavailing. The Branch tried to show that, according to its records, only 2.2 per cent of prisoners granted ticket of leave between and had actually committed an offence while on parole. It was useless. The critics, apparently, had no interest in looking at the actual conduct of parolees. There was intense pressure to tighten up the rules for conditional release.
In , the Chief of the Remission Branch, J. D. Clarke, who believed in a liberal approach to parole, was asked to resign. The Branch was reorganized.
Rigid new criteria for eligibility were imposed, which significantly reduced the number of prisoners considered for parole. Whereas 1,400 tickets were granted in /, only 750 were granted in /. Moreover, most of these were releases for deportation or temporary licences for such purposes as hospital treatment. Other factors that might be examined were mental debility, extreme youth or old age, assistance given to the Crown or questions about guilt. Rehabilitation had become irrelevant.
Now that parole was a sometime gift, remission became, once again,
"the only medicine of the miserable." The awarding of remission ("time off for good behaviour") became a matter of crucial importance to people behind bars.
In the penitentiaries, remission points were awarded for "conduct" and "industry." In some institutions, guards carried little notebooks in which they made a daily record of the convicts' ratings in each category. At the end of the month the marks were added up and entered in a general ledger.
The potential for abuse was obvious. An inmate had no means of redress against a spiteful or vindictive officer who lopped off marks without reason. Also, the method of calculation was both difficult and controversial, and there was no uniformity in practice between institutions. Many inmates felt cheated out of the remission time they were due.
In the 1920s, an inmate had to wait six months after the date of his reception or his signing of a Waiver of Appeal before he could begin to earn remission. He accumulated "good time" at the rate of six days a month until he had a total of 72 days. At that point, he began to earn remission at the rate of 10 days a month. He did not earn remission while in the punishment cell, and he earned only half his remission (for conduct) while in the hospital. Insane convicts earned remission only for conduct, since they could not work.
The retreat on the parole front was only part of a general slowing down in the pace of penal reform. In fact, for the next two decades, it would barely move at all. Canada's prison system would remain trapped in the 19th century.
Life in the penitentiary was a kind of troubled twilight sleep. The rule of silence was absolute. Prisoners could spend up to 17 hours a day alone in their cells, doing nothing. Even crossword puzzles were forbidden. In the yards and corridors, they were forced to walk in lockstep, their eyes averted from each other.
As if this regime were not enough to break the strongest spirit, the convict's existence was defined and circumscribed by a multitude of rules. When General D. M. Ormond became Superintendent of Penitentiaries in , he introduced a draconian policy of militaristic control. Between and , the number of regulations increased from 194 to 724. By the end of his regime in , there would be 1,500 regulations, covering every possible aspect of prison life, even dictating how a guard should tie his shoes!
Under the circumstances, it was almost impossible for a prisoner to avoid committing some offence. Punishments were severe. Men could be shackled with their hands high above their heads for two days at a time. They could be tortured with the lash, the strap or, more cruelly, the paddle, a leather instrument three-and-a-half feet long that was perforated with holes that gripped and tore off the skin.
Abuses — even atrocities — went unchallenged because the penitentiaries were a world apart, a secret kingdom cut off from the rest of the community. The Canadian public was indifferent to the plight of prisoners and quite willing to leave the distasteful chore of dealing with them to the proper authorities. Fortunately in the prevailing gloom, there were a few flickering lights.
The Prisoner's Friend
On , the John Howard Society of British Columbia set up its first office in Vancouver. Its physical resources were small: two tiny rooms, a few straightback chairs, a table and a typewriter. On the other hand, it had J. D. Hobden.
In , a group of clergymen in Vancouver had decided to create an organization to help the families of men in prison, as well as the convicts themselves after their release. They decide to name the new entity after the great 18th century penal reformer John Howard. The association chose the Reverend John Dinnage Hobden, a 45-year-old United Church minister, as their leader.
Hobden had worked with prisoners and ex-prisoners for years, but his main qualifications were his passionate idealism and his immense personal charm. Frank Miller, who calls Hobden his mentor, recalls that he was "wonderfully human and warm." He had what our generation would call "people skills" and he used them with great effect.
Hobden's first client in his new office was an electrician who had been released from prison two months before. The man had not been able to find any work in his field and his family's situation was growing desperate. Hobden found him a job, as well as suitable clothes and tools.
The John Howard Society of British Columbia went on to help hundreds of ex-cons find a place in society. It was not an easy job at the best of times, but it was particularly difficult during the Depression when masses of men who had never been in jail were sleeping under bridges and riding the rails in search of a job.
Most of his clients were grateful for any consideration, but a few presumed too much on his generosity. They asked him for money for fishing trips, divorces and new cars. One man even proposed that they go into business together running a betting house!
In , Hobden was a guest of the first Canadian Penal Congress, organized by the Canadian Prisoners' Welfare Association. He spoke of unemployment in the West and the devastating effects on ordinary citizens and ex-prisoners alike. He pleaded for government subsidies for the aftercare societies. He was well aware that in dealing with bureaucrats, he had to overcome their deep suspicion of
If anyone could overcome that kind of prejudice, it was Hobden. Thanks to him, correctional authorities adopted a more favourable attitude to the aftercare agencies. John Howard workers were given freer access to the penitentiaries. Hobden was so closely identified with the society's work that many convicts thought they were dealing with the John Hobden Society.
Hobden was not just a friend to prisoners, but also a valuable ally to all those who were working for changes in the criminal justice system. One of them was Agnes Macphail.
An Unsuitable Interest for a Woman
Macphail was elected to the House of Commons in , the first woman in history to become a Member of Parliament. Everyone expected her to be quiet and ladylike, and to raise her voice only in defence of home and family values. Instead, Macphail astonished and irritated the other honourable members by stepping outside her "sphere" and joining the debate on issues like farm policy and foreign affairs. She even dared to talk about prison reform, a topic considered utterly unsuitable for a woman. In , she made her first official foray into the field when she introduced a resolution calling for a meaningful program of prison labour.
As the years went by, her office became a centre for ex-prisoners who had nowhere else to bring their grievances, as well as a meeting place for reformers. She distilled their thoughts into recommendations that she brought before the House. Among other things, she called for the creation of an independent parole board with judicial status. She maintained that all convicts should be eligible for parole after serving one-third of their sentences; and she constantly reiterated that parole decisions should be based, first and foremost, on the convict's degree of reformation.
Her efforts were publicized by Harry Anderson, crusading editor of The Globe and Mail. In other newspapers, she was ridiculed as a
"hysterical sob sister" and
Mounting Pressure for Change
With the onset of the Depression, there was a rise in prison population, but no increase in funds to build new institutions. Out of necessity, more tickets of leave were granted, especially to convicts who were lucky enough to have a job waiting for them on the outside.
For those who remained behind bars, conditions in the penitentiaries went from bad to unbearable. In , Kingston Penitentiary erupted in a riot that lasted six days. Over the next five years, there would be 15 more riots in institutions across the country. Savage whippings were administered, sometimes to 20 men at a time, but the violence went on.
Suddenly, the prison system was in the headlines, and people started to listen to Agnes Macphail.
In , Macphail made an unannounced visit to Kingston Penitentiary, insisting that she had a right to do so as a Member of Parliament. What she saw appalled her.
She decided to pull out all the stops to pressure the government into holding an inquiry. Her bitterest opponent in Parliament was Hugh Guthrie, Prime Minister R. B. Bennett's Minister of Justice. Guthrie tried to discredit her by claiming that her information about prison conditions came from a notorious sex offender.
Bennett's Conservatives were defeated in , and a year later the new Liberal government announced the creation of a Royal Commission to Investigate the Penal System of Canada. It was a sweet moment for Macphail.
The Archambault Report
Appointed to head the Commission was Mr. Justice Joseph Archambault. The other members were R. W. Craig and Harry Anderson of The Globe and Mail. (Anderson would die within the year and be replaced by J. C. McRuer.)
The Archambault Commission was the most comprehensive study of penitentiaries ever undertaken in Canada up to that date. Its report, which was tabled in , would become the bible for those who wanted to introduce modern methods to penology in Canada. The Archambault report echoed the proposals that Macphail had been making for many years. Though most of the Archambault recommendations related to prison conditions, they had a lot to say about parole as well.
At the time, the federal penitentiary system had an inmate population of 3,250. Seventy-two per cent were return visitors. The Archambault Commission was certain that the rate of recidivism could be reduced if some real effort could be made to rehabilitate offenders. The commission severely criticized the Remission Branch for making parole a clemency measure rather than a tool for reformation. It also deplored the fact that the Branch was so susceptible to political pressure.
The report castigated the Branch for its operating methods. Decisions were based on the most meagre information. When applications for parole were received, there was no attempt to inquire into the social background of the prisoner or to compile a case history. Part of the problem was lack of resources. The Branch had a total staff of four: the chief of the department and three assistants seconded from the RCMP.
By far, the most important and far-reaching of the Archambault proposals was for a prison commission that would have full authority over the management of penitentiaries and act as an independent federal parole board.
Macphail was vindicated. Archambault sent her a copy of the report with the inscription:
"To Miss Agnes Macphail, M.P., courageous pioneer and untiring worker on behalf of prison reform in Canada."
After the Report
Macphail and her supporters had shown that, whatever its stated goals may have been, the Canadian penal system was really based on the principle of retribution. And retribution did not work. It injured people without improving them. It failed to rehabilitate and it also failed to deter. In other words, it was not just wrong, it was useless.
After the publication of the report, General Ormond was sacked, and some of the worst abuses were corrected. On , Bill C-34 was passed, revising the Penitentiary Act and creating an administrative board of three. The overall restructuring, however, that Archambault had recommended was not carried out. The proposal for an independent parole board was also ignored.
Macphail and her allies, bitterly disappointed, pressed hard for a fuller implementation of the Archambault recommendations. Unfortunately, events in Europe were to put any talk of further prison reform on hold. In , the Second World War broke out. The new penitentiary legislation was suspended and the Archambault report was put on the shelf.
Part 3 - People behind the reforms in the years after the Second World War
The War Years
Nothing much happened in Canadian penology during the war years. Or so it seemed. Prison reform was suspended while the government grappled with more important issues. In the prisons, it seemed as if time had stopped. Overseas, however, a great deal was happening, and not just on the military front. Something was happening in the minds and hearts of young Canadians in the armed forces.
Our soldiers were seeing first hand what a ruthless dictatorship could do, and they would come back with a deep revulsion for the use of arbitrary power. Unlike their fathers who had returned from the First World War exhausted and disillusioned the veterans of the Second World War returned with a sense of mission.
After the war, thousands of these returning soldiers went to university on Department of Veterans Affairs grants. Many of them went into the "helping" professions: teaching, medicine, psychology and social work. Some of these graduates began to infiltrate the correctional system.
Prison reformers who had despaired of ever seeing the Archambault proposals implemented were heartened and relieved when the penitentiary legislation of was finally activated in . In , the Penitentiaries Branch was reorganized and Major General Ralph B. Gibson was named Commissioner of Penitentiaries.
The appointment of another military man was not received with enthusiasm by Canadian reformers, but Gibson would surprise them. Despite his background, the new Commissioner was flexible and open to new ideas. The Archambault report became his bible, and he honestly tried to put it into practice. There was a perceptible lightening of the atmosphere in Canadian prisons. Rules and regulations were softened, and there was new hope for rehabilitative treatment.
Archambault had maintained that the recidivism rate in Canada was high because prisoners were not given the opportunity to reform while in prison, nor helped to find honest work after their release. The report would inspire a number of reforms during the 1940s with the focus on treatment within the walls. Prisons began to hire teachers and psychologists and to develop training courses.
Sports and hobby programs were introduced. Support groups like Alcoholics Anonymous were set up. The first inmate newspaper - the Kingston Telescope - was published. Outside the institutions, community services to ex-offenders expanded. More and more John Howard and Elizabeth Fry societies sprang up across the country. Gibson worked closely with people like Alex Edmison, one of the leaders of the movement for aftercare. He ordered penitentiary officials to give these agencies their fullest cooperation.
In the 1930s the Remission Branch became the Remission Service. The modus operandi of the Service had hardly changed since the days of Brigadier Archibald. Remissions officers were all stationed in Ottawa and, once a year, a representative would visit each penitentiary and the large provincial prisons to talk to prospective parolees. There was no official supervision of men on ticket of leave.
The ticket of leave was an actual piece of paper. On his monthly visit to the police station, the parolee would present it to an officer, who would date and sign it.
W. H. B. Hoare reassured the readers of the RCMP Gazette in :
The Ticket of Leave subject is not pampered. He is made to realize that he has been justly punished by imprisonment for an offence committed and that judgement has been tempered with mercy by permitting him to serve part of his just sentence at large under the mild restraint of the Ticket-of-Leave licence.
Privately, the police admitted that they didn't have the time to follow up on ticket-of-leave men.
Agents of Change
One day in , a new employee arrived at Kingston Penitentiary. He was given a desk in the schoolroom until the administration could decide what to do with him. His name was Frank Miller, and he was the first classification officer in the Canadian penitentiary system. Classification was the study of convicts for the purpose of grouping them into the right categories and planning appropriate rehabilitation programs.
Miller was a minister's son from British Columbia who had studied sociology in university. During the war, he had been in personnel selection in the Canadian army and interviewed people coming out of detention for military offences. Alex Edmison had sparked an interest in corrections, and Miller had worked as a volunteer with the John Howard Society.
The early classification officers had to create their own jobs. Each had his own style and methods. Miller interviewed every inmate received at the penitentiary and did a preliminary report. He selected some inmates to appear before a classification board. He also did a six-month follow-up as well as an interview two or three months before release. At that time, he would put them in touch with the John Howard Society and the National Employment Service.
There was now a new layer of people between the inmate and the custodial authorities: the classification officers, social workers, psychologists and instructors.
"We were the change agents for the new penology," Miller says. He saw himself in a dual role; as a counsellor to the inmates and a consultant to the prison authorities. Doing justice to both sides was a job that required a great deal of sensitivity and tact.
Hobden and the Chief
The new penologists believed that crime was a sickness that could be cured by proper classification, segregation, training, education and supervision. They argued that many offenders were being kept in prison long past the point where it did them any good. They maintained that properly trained specialists could determine when that point had been reached.
In the 1940s, there was an uproar in British Columbia over the granting of a ticket of leave to a man accused of what was then called white slavery (forced prostitution). J. D. Hobden, the Executive Director of the John Howard Society of British Columbia, wrote to the Chief of the Remission Service to object to the man's release.
Mr. Hobden took a leave of absence from the John Howard Society and became the Remission Service's first Western representative. Hobden's territory stretched from Vancouver to Kingston. Twice a year, he would make a tour of all the federal and provincial institutions in the Prairies, then see 50 to 70 people at Kingston.
Hobden was the first social worker to join the Remission Service and his appointment represented the beginning of the professionalization of conditional release. He was the first parole officer to introduce social factors into his reports. Hobden put his conclusions about each case in code: Consider meant parole might be a good idea. Examine meant the case was doubtful and could go either way. Drop was clearly negative (Drop was later changed to No action).
Failing health prevented Hobden from covering his territory, and in he was replaced by Ward Cook. Nevertheless, Hobden continued to work for the Remission Service until , when he went back to his old job with the John Howard Society. Years later, Allan J. Macleod, Director of the Remission Service, would say:
"Dr. Hobden was one of the first Canadians to give a sense of practical credibility to the idea that a person could go to prison, improve himself, and with help and understanding establish himself in the community as a useful citizen." Hobden made parole a believable quantity in Canadian corrections, and made inevitable the establishment of a Parole Board of Canada in the 1950s.
In the 1950s, confidence in the ability of experts was at an all-time high. In the penitentiary system, the old militaristic methods were losing support and a new generation of behavioural scientists were trying to reshape the prisons according to a medical model. There was also a growing campaign to minimize incarceration, with increasing use of both probation and parole.
In , Frank Miller left his job as a classification officer to become an Assistant Director with the Remission Service. The other Assistant Director was Benoit Godbout, a barrister, who had been private secretary to the Solicitor General. The old Chief was succeeded by A. A. Moffatt (for a year) and then by Allan J. Macleod, QC, who was the Director of the Criminal Law Section in the Department of Justice.
The appointment of Macleod marked the beginning of a new approach to corrections and a reorientation in the parole system from clemency to rehabilitation. Macleod had worked on the revision of Criminal Code and he brought with him his vision of where the law should be headed. During his six years with the Remission Service, he would help to write the statutes for Canada's first parole board.
Miller says Macleod was the most brilliant man he ever knew and an outstanding person to work for.
"He was an idea man himself," but also ran with and developed other people's ideas. He was also a risk-taker. He once asked Miller:
"Are there any clemency rules we haven't broken yet?" They were able to experiment because the government of the day wanted change and backed them to the hilt.
Miller, Macleod and Godbout believed they had a mandate to bring Canadian parole into the 20th century. Miller says:
"It was a period of excitement; we felt that we were doing something important." Their key ideas were individualization of treatment and gradual release. With help from the private aftercare agencies, they instituted true supervision. They developed a communications strategy, organized conferences, opened new offices, hired new people and expanded services. They also granted a lot more licences.
At that time, you had to serve two thirds of your sentence before you could be considered for release. Macleod believed all first offenders should be released at half time, and this rule was usually followed in practice. Macleod also made an effort to relax the rule that anyone who had violated his ticket of leave once could not get it again.
Things were moving fast. Miller says:
"There were more substantial changes made from ' to ' than in any equal period after that."
Under an amendment to the Criminal Code passed in , an accused person could be declared a "habitual criminal" if: he had racked up three separate convictions, for each of which he was liable to imprisonment for five years or more; if he was leading a persistently criminal life; or if he had previously been sentenced to an indeterminate period of imprisonment in a penitentiary. A habitual criminal could be sentenced to "preventive detention" for the rest of his or her life, subject to review every three years.
The first habitual criminal was let out on parole in / . It was a risky move for the Remission Service, but Macleod was convinced that habituals could be rehabilitated. The first candidate, "Stan", was carefully chosen. The Service did a very thorough investigation of his background and interviewed him over and over again to make sure he was suitable. They even presented him with a letter from the Commissioner of Penitentiaries telling "Stan" that he was a pioneer, and was honour-bound to justify the confidence they had placed in him. Then, Miller says: "We all took a deep breath and crossed our fingers."
Their faith was rewarded. "Not only was the man successful in every respect, but in later years we used him as a parole supervisor."
Miller and Macleod had to hold their breath more than once during this period. Not only were they the first to parole habitual criminals under preventive detention, but they also experimented with paroling people who had committed violent offences and sexual psychopaths.
The Fauteux Report
In , "A Committee to Inquire into the Principles and Procedures followed by the Remission Service of the Department of Justice of Canada", was established headed by Gerald Fauteux, a Supreme Court judge.
Miller insists that change was already under way when the Fauteux committee started its work, and that the committee simply helped the changes along.
"We didn't sit back and wait for the report."
In , the committee submitted its report. Although its mandate was to report on conditional release, the committee went far beyond that to look at the entire system of corrections. In fact, of its 44 recommendations, only eight were specifically about parole.
The Fauteux report reiterated many of the criticisms made by Archambault. Like Archambault, Fauteux deplored the subversion of the Ticket of Leave Act. Time and again, the concept of parole as an aid to rehabilitation had been frustrated. Parole was more than just a way to get inmates to behave themselves in the institution. According to Fauteux, the prospect of parole should motivate the inmate to take full advantage of the rehabilitative opportunities offered by institutional programs, so that the inmate could lead a better life after his release.
The basic theme of the report was preventive justice. Fauteux believed that the community could best defend itself against criminals by meting out justice in a way that prevented offenders from committing any further offences. To do this, the court had to make the sentence fit the criminal as well as the crime. The report recommended that all inmates be automatically considered for parole on the merits of their individual cases.
The most important recommendation of all was for the creation of a strong central parole board that would have exclusive jurisdiction over parole for all inmates serving sentences imposed under criminal law in Canada. The proposed Parole Board of Canada would be a quasi-judicial body rather than a minister of the Crown acting in a purely administrative capacity. The proposed board, Fauteux said, should have three to nine members, appointed by the Governor in Council. Board candidates should have professional experience in law, psychology, social work or applied criminology.
Remarkably, the government acted quickly on the Fauteux report. The old Ticket of Leave Act was repealed, and the Remission Service abolished. The old legislation was replaced by the Parole Act of , which enshrined the principle of rehabilitation. It also created the Parole Board of Canada. The independent paroling authority, which so many had advocated for so long, at last became a reality.
Part 4 - The Parole Board of Canada (PBC) from to
The Birth of the Parole Board of Canada
As conceived by the Parole Act, the Parole Board of Canada was a completely independent parole decision-making authority. The legislators envisioned a very powerful organization, with considerable discretionary authority and a much broader mandate than the old Remission Service had. To ensure their immunity from political interference or influence, the five Board members were appointed for 10-year terms, with the possibility of renewal.
The legislation set out the new criteria for parole: the Board could release an inmate when he or she had
"derived the maximum benefit from imprisonment," when
"the reform and rehabilitation of the inmate will be aided by parole," and when
"release would not be an undue risk to society."
Discretion, of course, is a double-edged sword. The Board had the freedom to deal with each case on its own merits. It also, unfortunately, had the freedom to make mistakes. Board member Frank Miller, for one, saw the potential for disaster:
"I tried and tried to get them to have a policy," but the members were confident they could rely on their own judgement.
In , during its first year of operation, the Board granted 994 paroles, the greatest number ever up to that date. This represented a grant rate of 42 per cent. In , the grant rate shot up to 62 per cent, falling back to 27 per cent in and 25 per cent in .
The candidate for parole was assessed on the basis of factors that might affect his behaviour after release. The Board had a file on each inmate compiled by a parole officer. A "community investigation" would also be conducted, which included information about the inmate's release plans, his relationship with his family and his prospects for a job. Above all, the Board was interested in any evidence of a change of attitude, a real commitment to reform.
Normally, two positive votes were sufficient for parole; in the case of more serious offenders, all five members had to concur.
When parole was granted, the offender had to abide by certain conditions that were spelled out on his parole certificate, such as agreeing to keep reasonable hours, stick to his job, support his dependants, abstain from alcohol and stay away from criminal associates. He had to get permission to marry, to move, to change his job or residence, or to buy a car. As time went by and the offender demonstrated increasing responsibility, conditions could be gradually relaxed or, up until the early 1980s, removed entirely.
In the 1960s, parole was seen as the final stage of a treatment program. The point at which the inmate was deemed to have reached "maximum benefit" from imprisonment, the Board would release him. Of course, the members of the Board did not always agree on when that point had been reached.
In Frank Miller's opinion, the Board became a little reckless in the mid-1960s, paroling too many people too soon:
They took the view they had the power to free anyone they wanted… Forfeiture and revocation rates went up. They were releasing people on life sentences… and there were questions asked in Parliament - Department of Justice officials were getting nervous.
In , there were protests in British Columbia when a man who had killed a 12-year-old girl came up for parole after serving only 10 years in the penitentiary. The government decided to make Cabinet approval necessary before parole could be granted to prisoners serving sentences of life imprisonment that had been commuted from death sentences.
Despite these difficulties, the Board pressed ahead with a number of innovative programs, like day parole.
A Day Away
One afternoon in , a man with a lunch bucket in his hand knocked on the gate of the B.C. Penitentiary. He claimed to be an inmate, and demanded to be let back in. The bewildered guard refused to open the gate until he was assured by someone in authority that the man was indeed a legitimate guest of the institution — he was simply returning from his first day at an outside job. Someone had neglected to tell the turnkey about the new program of day parole.
Day parole allowed offenders to leave the institution for short periods to work or attend school. The program had many advantages. For the prisoner, it was a relief from the monotony of prison life. If he could get a job on the outside, he could earn some money to send to his family, as well as accumulate a little nest egg for the day of his release. For the Board, day parole was way of testing the inmate's ability to behave on the street.
The Ultimate Defence
In , Frank Miller spoke to the Kiwanis Club in Ottawa:
The purposes of parole, like the purposes of the sentence in the first instance-are the protection of society and the rehabilitation of the offender. Ideally, these two purposes are inseparable. While society can be protected temporarily by the detention of the criminal, if he is not reformed, society is no longer protected when he is released. As a democratic people, we desire the rehabilitation of the offender for his own worth as an individual, and in our effort to help him in his rehabilitation, we find our only ultimate defence against him.
Not everyone was convinced that parole was working that way. In , The Edmonton Journal said, "It remains to be proven whether all this [lenience] will result in a better and safer society or a reduction in crime. Society has a right to protect itself against its enemies."
The police were particularly hostile. As Doug Sagi explained in the Calgary Herald in ,
"There exists… a basic conflict between police who see the criminal at his worst and the prison and corrective people who see him at his best." Many police officers felt that prison social workers and Parole Board of Canada members were naive and that parole candidates found them easy to fool.
The Board also got a rough ride from the courts. Judges resented what they saw as the Board's interference with their sentences. They repeatedly declared that recidivists and violent offenders should not be paroled. In , a conference of Quebec judges passed a resolution asking the federal government to give criminal court judges the power to pass sentences that could not be shortened by the Parole Board of Canada.
Between and , the Parole Board granted more than 9,000 paroles from federal penitentiaries, a grant rate of 36 per cent of the more than 25,000 applications received. The combined federal and provincial total of paroles granted exceeded 20,000. In , the Board made nearly 15,000 parole and clemency decisions. Workload was becoming a serious problem.
Parole officers were in short supply and more had to be recruited. The quality of supervision, therefore, began to suffer. As the number of parolees increased, the failure rate went up, and the Board was embarrassed by stories like the one about the parolee who skipped the country to honeymoon in Spain.
In , the government created the Department of the Solicitor General, which included the Canadian Penitentiary Service, the Parole Board of Canada and the RCMP.
The Ouimet Report
Philosophically, the Ouimet Report of conformed to the views of its predecessors, the Archambault and Fauteux reports, with one important difference. Although Ouimet still championed the ideal of reformative treatment, the report saw the best hope for rehabilitation as a speedy return to the community. In other words, it came close to admitting that jail time often made people worse instead of better.
The committee found that the Board was too remote and invisible and that its membership was too narrowly composed of people from the judiciary and the legal profession. It also recommended the decentralization of Board operations so that face-to-face hearings could be held with all parole candidates. Finally, it recommended that the National Parole Service, which was responsible for case preparation and supervision, be separated from the Parole Board of Canada and merged with the Canadian Penitentiary Service under one Commissioner of Corrections. It was felt that this would further emphasize the independence of the Board in its parole decision-making.
In the 1960s, the prospect of getting a substantial chunk of "good time" tended to erode many inmates' interest in applying for parole. The combination of statutory and earned remission could reduce a prisoner's jail term by almost a third of the original sentence. This meant that even if an inmate was denied parole, he could still expect to get out early but without any supervision by a parole officer. If he were granted parole, however, he would be under supervision for the rest of the sentence.
Some inmates who were offered parole actually refused to accept it. Rather than submit to supervision in the community, an inmate could choose to simply wait until his statutory release date. Then, when he left the institution, he would be completely free and under no control.
The revised Parole Act of declared that an inmate who had accumulated more than 60 days of remission, and was therefore eligible for release, had to be released to serve his remitted time under supervision in the community, subject to the same conditions as any parolee. This became known as mandatory supervision.
Mandatory supervision was never clearly understood by the Canadian public. Many people did not know that correctional institutions were compelled by law to release any offender who had reached the mandatory supervision date. The Parole Board played no part in making a decision to release him but could only revoke mandatory supervision if the offender breached his conditions. In the decades to come, confusion between mandatory supervision and parole would contribute to a serious loss of public confidence in conditional release.
On , a riot broke out at Kingston Penitentiary. Five hundred inmates (out of 658) took over the prison, held several guards hostage and went on a rampage of destruction. They draped banners from the top of the six-storey dome: one of them read "What about our human rights?" They told a citizens' advisory committee and journalists that they were afraid of being transferred to the new "high-tech" prison at Millhaven. They also complained about police brutality, poor living conditions in the penitentiary and the changes in the Parole Act of , which brought about mandatory supervision.
Troops were called in to surround the institution. An angry guard, worried about his threatened colleagues, told reporters, "It's the do-gooders who got us into this; all those well-meaning reformers and civil rights people."
At the end of the four-day siege, two inmates were dead and 11 injured.
The Kingston riot was the beginning of a decade of unrest in Canadian penitentiaries, the like of which had not been seen since the 1930s. The difference, this time, was that prison violence had a political undercurrent. Rebellious prisoners often justified their actions by saying that their rights had been infringed. Even more important, many people on the outside supported their grievances.
The civil rights movement that had begun in the 1960s would have a significant impact on penology. The same people who had marched and demonstrated for peace in Vietnam, racial equality, women's liberation and other causes were willing to work for "justice in prisons" as well. Activists demanded the right to visit prisons, to take up the cause of civil rights for inmates and report on conditions in the penitentiaries.
In the federal parole system, the rights of inmates became a major theme of internal reviews and commissions of inquiry. An increasing number of court decisions were coming down on the side of the inmate. The Parole Board of Canada's discretionary authority came under fire, and the Board realized it would have to change its rules and regulations to ensure that it did not act-or appear to act-unfairly or capriciously.
A number of procedural safeguards were subsequently adopted in the 70s:
- the inmate's right to a hearing at his parole eligibility date;
- the inmate's right to get reasons in writing when parole was denied;
- internal review of negative decisions; and
- a hearing at the inmate's request when his parole was suspended and revocation considered.
In , these changes would be enshrined in amendments to the Parole Act. The pursuit of fairness greatly increased the workload, and the Board had to be reorganized and expanded.
In , the drive for regionalization began with the opening of the Quebec regional office in Montreal. In that same year, corporal punishment was officially abolished by Parliament, freeing the Board from the distasteful duty of ruling on this form of punishment. As well, the report of the Task Force on the Release of Inmates, or the Huguessen Report, was published. It recommended the regionalization of the Parole Board of Canada.
From to , the five members of the Parole Board of Canada made their decisions after reviewing files at their desks in Ottawa. They never met the inmate, who was represented only by a letter of application. Their only contact with the institutions was when they called a staff member to clarify something in a file.
By , Parole Board Chairman George Street had convinced the Solicitor General to approve the conduct of face-to-face hearings. Four new members were appointed and the Board's budget was increased. In September, the first hearings took place in Kingston Penitentiary. The practice gradually spread across the country as the number of members increased. By , members of the Board would be presiding over hearings in 26 institutions with a combined inmate population of 7,400. By that same year, 10 new members had been appointed in the regions.
Hearings would typically take place in the warden's offices or a committee room within each institution. Each case was introduced by a parole officer and a classification officer. Interviews could be quite lengthy, and sometimes confrontational. When the interview was over, the inmate was asked to leave the room so the members could have a private discussion. The inmate would then be recalled and informed of the Board's decision, as well as the reasons behind it.
It was soon apparent that the new system was a dramatic improvement over the old. It made a huge difference to the morale of inmates who had previously been cynical about the parole process. Under the new system, even if an inmate was refused parole, at least he knew why. Board members were quite willing to tell him how he could improve his chances for the next time.
Since the full board could not attend all the hearings requested, pairs of members were empowered to make decisions that had previously been made by the Board as a whole. The only cases excepted were those involving lifers and offenders serving indeterminate sentences; their files were sent on to Ottawa for further 'paper' review by three other members.
Part 5 - The Parole Board of Canada (PBC) during the 1970s
The Parole Board's first decade of existence was difficult but it was pioneering and exhilarating. It was a relatively quiet period but it was, as they say, the quiet before the storm.
On the recommendation of the Glascoe Commission that had urged sweeping changes to government organizations, the Department of the Solicitor General was created in and was comprised of the Canadian Penitentiary Service, the Parole Board of Canada and the RCMP. These agencies had previously come under the department of Justice.
The Ouimet Committee, which had tabled its report in , felt that the Parole Board was too remote and invisible and that its membership was too narrowly composed of people from the judiciary and the legal profession. It recommended that the Board increase the number as well as the diversity of its members. It also recommended the decentralization of Board operations so that face-to-face hearings could be held with all parole candidates.
The drive for regionalization began in with the opening of the Quebec regional office in Montreal. (By , there would be 10 regional Parole Board members.) That same year, corporal punishment was abolished by Parliament, freeing the Board from the distasteful duty of ruling on this form of punishment. Frank Miller resigned as Executive Director of the National Parole Service to accept a job as Canadian co-ordinator for the Fifth United Nations Congress on the Prevention of Crime.
In percentage terms, was the high-water mark of the conditional release system in Canada. In , a federal prisoner had a 20 per cent chance of parole. In , his chances had improved to 50 per cent. In , fully 65 per cent of applications received were approved by the Parole Board of Canada.
William R. Outerbridge
In , T. George Street resigned. He was succeeded by William Outerbridge, a criminologist with a special interest in civil rights. Outerbridge would go on to preside over the most turbulent and eventful period in the history of the Board.
Bill Outerbridge was the son of missionaries. He had grown up in Japan during the period of xenophobia before the Second World War. This gave him
"increased sensitivity to the increased potential for the misuse of power." He had been a psychiatric social worker, street worker, probation officer, staff trainer and juvenile court judge. He had been a member of the Parole Board from to and a professor of criminology between and . While working for the Province of Ontario, he had been given a year's educational leave. He spent it in California, at Berkeley, which was then a hotbed of new ideas in criminology. "It had a profound influence on my thinking. It was a mind-blowing experience."
Membership on the Parole Board of Canada looked like an opportunity to put some of those new ideas into practice.
"The reason that I was interested in coming, the thing that really seduced me, was the promise of face-to-face parole hearings."
From to , the five members of the Parole Board of Canada made their decisions after reviewing files at their desks in Ottawa. They never met the inmate. They only saw his written application and the assessments others had written about him. Their only contact with the institutions was when they called a staff member to clarify something in a file. George Street was never satisfied with this method of assessing cases. He wanted to meet with applicants for parole in the prisons and give them a personal hearing. He fervently believed that face-to-face interviews would lead to more informed decisions, as well as allowing inmates to be active participants in a process of real importance in their lives.
By , Street had convinced the minister to give his approval for hearings. Four new members were appointed and the Board's budget was increased to support the innovation. In September, the first hearings took place in Kingston Penitentiary. The practice gradually spread across the country as the number of members increased. By , members of the Board would be presiding over hearings in 26 institutions with a combined population of 7,400 inmates.
Interviews could be quite lengthy, and sometimes confrontational. When the interview was over, the inmate was asked to leave the room so the members could have a private discussion. The inmate would then be recalled and informed of the Board's decision, as well as the reasons behind it.
During this period, a Parole Board of Canada member typically spent about a third to a half of the year on the road. Outerbridge says,
"For people with family responsibilities, it was gruelling." On an average day, Board members would interview 8 to 10, and sometimes as many as 12, people.
In , the report of the Task Force on the Release of Inmates, chaired by Mr. Justice James Huguessen, was released. This was followed in , by a report of the Standing Senate Committee on Legal and Constitutional Affairs (chaired by Senator H. Carl Goldenberg) entitled, Parole in Canada. The two reports had a great deal in common. Both advocated the liberal use of parole and recommended that the authority of the Board be extended. Both said the Board should be a quasi-judicial body. They agreed that parole was not a form of sentence review, clemency, proof of rehabilitation, a reward, a right or a prison-management tool.
Huguessen saw parole as a way of reducing the
"social and human costs" incurred by the
"necessary evil of prisons." Goldenberg stated emphatically that society had to be prepared to take risks on some parolees, because the potential benefits would usually outweigh the risks. The two reports were similar, however, in reflecting the growing disenchantment with correctional treatment in the institutions.
They were both leery of subjective judgements and maintained that the Board should develop some decision-making standards. Both thought that reasons for denial or revocation should be given in writing. Should an inmate be allowed legal counsel at hearings? Huguessen and Goldenberg were dubious. They conceded that some inmates might be incapable of presenting their own cases, but they didn't like the idea of lawyers doing it for them. They feared that hearings would become too adversarial. Another sticky issue was that of appeal. Huguessen thought parole authorities should be subject to the scrutiny of the courts. Goldenberg was more pragmatic: he thought the Board's decisions should be final.
In -, an internal review committee was established at Parole Board of Canada headquarters in Ottawa. If an inmate was denied parole, or his parole was revoked, he could ask for the decision to be reviewed by the committee. This committee would later become the Appeals Division of the Parole Board of Canada. The aim of the committee was not to second guess the previous Board decision; rather it was to ensure that a duty to act fairly had been followed in reaching that decision. Toward the end of the decade, inmates were also allowed to have an assistant help them during the hearing. That assistant could indeed be a lawyer but it could also be a spouse, a relative or a family friend.
In spite of all its efforts to reform, the Board was shocked to get a blast from the Chief Justice of the Supreme Court, Bora Laskin. In R. v. Mitchell (1975), Laskin declared,
"The plain fact is that the Board claims a tyrannical authority that I believe is without precedent among administrative agencies empowered to deal with a person's liberty. It claims an unfettered power to deal with an inmate almost as if he were a mere puppet on a string." It was a stinging rebuke that had a profound impact on the Parole Board and would propel further reforms well into the next decade.
Not a Revolving Door
If the Chief Justice of the Supreme Court thought the Parole Board was too tyrannical, there were many other judges who thought the Parole Board was not tyrannical enough. These judges were supported by the police who continued to take a hard line.
In , Winnipeg Police Chief George Blow was quoted in the Toronto Daily Sun as saying that it was time Canada's parole system was wiped out, because it just wasn't working.
"As fast as we are locking these people up, the parole board is letting them out." He said the leniency of the Board was breeding crime, because younger criminals could see how easy it was to be released. Montréal police called the Board the société de protection pour les bandits endurcis (the society for the protection of hardened criminals).
Superintendent F. F. Fry of the Halifax police told a conference in ,
"There are times when it takes us longer to catch an offender, convict him and have him sentenced than it takes to get him back in society."
The Board could see the danger in having the police alienated from those administering the system of criminal justice. In the National Joint Committee of the Canadian Association of Chiefs of Police and Correctional Service Canada was established to foster co-operation between the police, the courts and the correctional system. It was the brainchild of ex-Montreal-police chief, Jean-Paul Gilbert, who was now a Parole Board member.
The Chairman of the Parole Board of Canada tried to reach across the gap of suspicion and mistrust between parole and police. For a number of years before coming to the Parole Board, Outerbridge had been involved in training courses for RCMP and Ontario Provincial Police. He now put this experience to good use in workshops he organized for the law enforcement community. He was joined in this outreach program by former police chief Jean-Paul Gilbert in Montreal as well as Board members Frank Anderson, a former inmate and Pierre Jutras, a former warden in the Prairies. Outerbridge and his colleagues could see that much (mis)information was being disseminated to the public and the media by police officers and judges. It was crucial that they understand how the Parole Board really worked.
Whenever time and opportunity arose, Outerbridge and his colleagues also spoke to victims of crime groups and participated in radio and television programs dealing with victimization.
"We felt that it was very important to draw clear distinctions between release on parole, over which the Board was responsible and release on mandatory supervision, over which the Board had no control whatsoever."
"Very understandably," Outerbridge says,
"members of victims' groups were deeply hurt, angry and looking for someone on whom to vent their anger. Although our presentations were not easy, many were able to understand that the majority of those whose lives had been scarred by someone on mandatory supervision were inmates whose release from prison the Parole Board was unable to withhold."
Pivotal Year for the Parole Board of Canada (PBC)
For the Parole Board of Canada, would prove to be a watershed year. The year before, , Parliament voted to abolish capital punishment. The Criminal Code was amended and the previous categories of capital and non-capital murder were replaced with first and second- degree murder. The penalty for first-degree murder became a life sentence with a minimum period of 25 years to be served before parole eligibility. Also added was a provision for a judicial review by the sentencing court after fifteen years to decide whether the 25-year parole eligibility period should be shortened. This would later come to be called the "faint hope clause".
Other changes occurred in under the Criminal Law Amendment Act, more commonly referred to as the "Peace and Security" legislation. This was a series of legislative changes that led to a restructuring of the correctional system and significant amendments to the Parole Act that resulted in an expanded Parole Board and the advent of a new kind of Parole Board member.
In , the Parole Service and the Penitentiary Service were combined to become the Correctional Service of Canada (CSC). The re-structuring was controversial. Outerbridge and most of his colleagues at the Board were opposed. Their main concern was that the new arrangement might affect the quality and timeliness of parole reports. They were reassured when the Parole Service continued to meet a high standard of professionalism. In the penitentiaries, classification officers found that integration compelled them to
"think beyond the walls" and do more preparation for the release of inmates.
Does Anything Work?
Another challenge Outerbridge had to face was a certain loss of faith in the rehabilitative model in corrections.
In , Outerbridge had told an audience of social workers that
"we are in the midst of a period of serious stock-taking" and that
"many cherished beliefs have been found to be unproven by empirical research." One of those cherished beliefs was in the power of correctional experts to "fix" criminals.
In the United States, Robert Martenson ( - ) published his findings from a thorough study of various rehabilitative programs in American penitentiaries. The findings seemed to show that nothing really worked in reforming criminals. The "nothing works" theory ignited a ferocious controversy. It fuelled demands for a "justice model" in which the correctional system would limit itself to such manageable goals as humane control, fairness and cost-efficiency. In this model, parole would either be abolished altogether or be used only for evening out disparities in sentences. In the United States, the nothing-works philosophy had a regressive influence on the conditional release system.
Ironically, Martenson would later claim that he had been misunderstood; he had never intended to say that rehabilitative programs were useless, only that there was insufficient evidence of their effectiveness. In Canada, that evidence would eventually appear as a result of expanded corrections research.
Another major thrust of the 1970s that would ultimately affect the Parole Board was the campaign to abolish capital punishment.
Life in the Balance
It is from my cell and on my knees that I am writing these few lines to implore your mercy and pardon. I know I do not deserve much compassion, or even perhaps the slightest sympathy, but could you not at least discover in some remote part of your good heart a particle of pity towards the most unhappy of all women.
This desperate plea for clemency failed to touch the Minister of Justice. He indicated to Cabinet that he saw no reason to interfere with Poirier's sentence of death for the murder of her husband. She was duly hanged in Ste. Scholastique on .
The Royal Proclamation of had replaced the prevailing system of justice in Quebec with the laws of England. Upper Canada became subject to British law in . This meant that Canadians were now ruled by the Bloody Code, with its enormous catalogue of capital offences. In 18th century Canada, as in Britain, the code was often enforced in all its savagery. In , for example, a man was hanged in Halifax for stealing a few potatoes. In Canada, as in Britain, the only recourse for a man condemned to death was to throw himself on the mercy of the Crown.
The Royal Prerogative of Mercy is a special privilege vested in the ruler by common law. Historically, it arose as a means of compensating for the inequities and imperfections of the law. Among those imperfections was the fact that, before , a person on trial for a capital crime in Canada had no established right to secure legal counsel. It was not until that a man or woman accused of a capital crime was allowed to give evidence in his or her own behalf. It was not until that a condemned person was allowed to appeal a sentence of death.
Thus, the importance of clemency. Friends and relatives of the prisoner, his employer, his parish priest—sometimes even the judge who had condemned him—would petition the colonial governor to use the royal prerogative to commute the sentence. As time went on, governors became more sensitive to public opinion and more likely to respond to these appeals.
Women were more likely to receive mercy than men. The all-male juries of the 18th and 19th centuries tended to view women as the weaker sex. Females were assumed to be the dupes of their husbands or male accomplices. Death sentences imposed on women were often commuted to life imprisonment or a lesser term.
Changes in the laws also reduced the number of executions. In , the number of offences punishable by death was reduced from more than 200 to 12. By the time of Confederation, in , only three offences were punishable by death in Canada: murder, rape and treason.
The Royal Prerogative
Before , any person who was convicted of murder was automatically sentenced to death and the sentence carried out unless the Governor General, acting on the advice of Cabinet, commuted the sentence to life imprisonment. The final decision was usually not made until the last few days, or even hours, before the planned execution.
Clemency might be granted on the grounds of extreme youth or old age, low intelligence, insanity, lack of premeditation, drunkenness at the time of the crime, a recommendation for mercy from the trial judge or jury, or "community sentiment." One woman was let off simply because she was the mother of eight children.
In most cases, however, a telegram would arrive with the fateful words, "There are no reasons disclosed which would justify any interference with the sentence," and the law would take its course.
In Canada, the Royal Prerogative of Mercy evolved from a vice-regal power to a remedy that was principally controlled by Cabinet. After , the Remission Branch, the forerunner of the Parole Board of Canada, was charged with screening petitions for mercy. In death penalty cases, they would conduct an exhaustive study of evidence before they made a recommendation to the Minister of Justice. The Minister would take the recommendation to a special committee of Parliament that reviewed all capital cases before warrants of execution were issued.
Alan Hustak, author of They Were Hanged, writes,
"A study of the capital-crimes case files shows no logic behind the various methods federal cabinets have used to cull the few who die from the many who are sentenced." The Governor General was not obliged to justify his decisions, and the deliberations in Cabinet were not recorded. It does seem, however, that as attempts at objectivity, clemency decisions were a macabre balancing act in which personal prejudices and political expediency often tipped the scales.
Under a Shroud
In the 1950s, a sense of shame began to creep into the administration of the death penalty. The executioner became anonymous, and hangings were performed after midnight in a shroud of secrecy. The first anti-hanging demonstrations took place.
In and , private member's bills against capital punishment were introduced by a Member of Parliament from Saskatchewan, Ross Thatcher. From to , private member's bills were introduced every year calling for the restriction of capital punishment to treason.
In a joint committee on Capital and Corporal Punishment and Lotteries recommended abolition of execution of offenders under 18. In , a federal government commission unanimously recommended the retention of the death penalty but tried to draw a moral line between two categories of murder: one deserving capital punishment and the other life imprisonment. By amendments to the Criminal Code made in , murder was divided into capital and non-capital murder. The judge was required to ascertain whether the jury wanted to make a recommendation for mercy.
Between and , about eight people a year were hanged, on average. Until the 1950s, only a handful of death sentences had been commuted. Between and , the Conservative government under John Diefenbaker commuted 52 of the 66 death sentences passed. The Montreal Gazette, in an editorial on law and mercy on , commented on the increasing number of commutations.
"If the power to grant mercy is to be exercised with regularity, it becomes in practice, not so much the exercise of discretion between cases, as the virtual abolition of capital punishment as such."
In , after the Remission Branch was abolished, the Criminal Law section of the Department of Justice assumed the responsibility of advising the Minister on most aspects of the Royal Prerogative of Mercy, but the Parole Board of Canada was required to conduct the necessary inquiries. This division of labour did not work very well, and the Board was eventually given greater scope, including the power to deny a submission for clemency.
In , the government had to make a decision about the fate of Ronald Turpin, who had shot a police officer; Arthur Lucas, who had killed a pimp and a prostitute; and Gary Alexander McCarkell, who had raped and killed two small children. Lucas and Turpin kept their date with the hangman on ; McCarkell, for some reason, was reprieved.
These were the last hangings in Canada—they did not go well. Turpin died instantly, but Lucas had too much rope for his weight; he was partially decapitated.
From to , the Pearson and Trudeau governments commuted all sentences of death. In , the Criminal Code was amended to provide for the death penalty only if the victim was a prison guard or a police officer.
On , legislation was passed to abolish capital punishment altogether and transfer the Royal Prerogative of Mercy to the Parole Board of Canada. With the rejection of the "ultimate sanction," the importance of clemency diminished.
Part 6 - The Parole Board of Canada (PBC) during the 1980s
On the Defensive
For many Canadians in the 1980s, everything that was wrong with Canada's system of criminal justice could be summed up in two words: Clifford Olson.
Olson became the most hated man in the country when he was convicted in for the brutal slaying of 11 young people, ranging in age from 9 to 18, in British Columbia. People were outraged to learn that Olson had obtained $100,000 from police in return for information concerning the whereabouts of the victims' bodies. The life sentence he received didn't seem to be sufficient punishment. In the minds of many, a life sentence in Canada doesn't really mean life anyway. There was widespread horror at the possibility that Olson might even be able to apply for parole in 25 years and be released. (In fact, he did apply for judicial review of his eligibility date in but was turned down.)
In the climate of the times, people were easily persuaded that there was something terribly wrong with all parts of the criminal justice system — from law enforcement to the courts, to the correctional system. Even though Olson had never had anything to do with parole, the Board too became an easy target. Throughout the previous decades the Board had already withstood a lot of criticism. It was more accustomed to acrimony than to accolade. It was frequently attacked for incompetence and naiveté, of too much generosity toward offenders and not enough compassion for victims, and of reckless disregard for the safety of its fellow citizens.
It seemed the Parole Board of Canada was expected to guarantee that released offenders would never commit another crime, but this was obviously impossible.
Much of the criticism focused on an area of conditional release where the Board had no discretion. Under the Parole Act, an inmate who had been refused parole could still earn "time off for good behaviour" in prison and released, by law, on what was known as, mandatory supervision. Offenders on mandatory supervision were a higher-risk than those who had been granted parole. Many any of these offenders had already been refused parole or, if granted, had had it revoked. They resented having conditions imposed on them and co-operated with their supervisor only as much as necessary to keep their freedom. Among this group, there were many who had a long record of violent offences.
This violent minority was on everybody's mind, but the Board had few options. Early in , Outerbridge discussed his concerns with the Board's lawyer, Bruce Mann, and Jack Hollies, who had been the Board's legal counsel and was now a board member.
Outerbridge put it to them squarely:
"Given the violent histories of these inmates and the high probability of violence upon release, was there any way by which the legislation applying to mandatory supervision could be interpreted to disallow their release, at least until the completion of their current sentence?" They sought the advice of senior counsel in the Department of Justice, who replied to the effect that the Parole Act could be construed to permit the withholding of release of such inmates deemed to be a continuing danger to the public. Outerbridge decided to put this opinion to the test.
A few months before the first of these specially identified inmates became eligible for release, he was told he would be re-arrested at the prison gate — thus the term "gating" — and re-admitted to the penitentiary. Because the purpose of this action was to clarify the law, the inmate was actually urged to seek legal advice and challenge the decision. Before long, several inmates had launched appeals.
After an inconclusive journey through the lower courts, the issue finally came before the Supreme Court. In Oag v. Parole Board of Canada (PBC) (1983), the Supreme Court ruled unequivocally that gating was illegal. In the Court's opinion, every inmate who was refused parole but had accumulated enough remission to be released was entitled to be let out on mandatory supervision for the duration of his sentence. Revocation could not be considered unless and until the offender actually violated the conditions of his release or had committed a new offence.
On the strength of the Supreme Court ruling, several of the dozen inmates who had been gated sued the Board and the Chairman for false imprisonment. It took many years for their claims to be settled.
In , Solicitor General Elmer Mackay introduced Bill C-67. Its main objective was to keep "the most dangerous" inmates off the street by detaining them past their mandatory supervision eligibility date. Correctional Service officials would identify all inmates who had been convicted of certain types of violent offences and decide if they were likely to commit another crime causing death or serious harm before the expiry of their sentence. If so, the Correctional Service would notify the Parole Board of Canada, and a detention hearing would be held at least six months before the mandatory supervision release date. The Parole Act was amended accordingly in .
The major weakness in the legislation was the assumption that acts of violence could always be predicted. Another difficulty was that the provisions for detention could not be applied after the sentence had expired. As the John Howard Society pointed out in a brief to Parliament,
Restriction in mandatory supervision may conceivably forestall the commission of crimes by a selected number of designated violent offenders for strictly limited periods. It may also lead to increased offending when these particular inmates are finally released completely unsupervised into the community.
In other words, for some offenders, detention might only delay another violent crime, not prevent it.
Don't Confuse Me with the Facts
The Canadian public continued to see the Parole Board through a distorted lens.
In , the Police Commission of Edmonton published a report on what it termed a wave of parole crime. The document listed 130 "parolees" who had supposedly committed violent offences over a two-month period. Even a cursory examination of the list showed that it was composed of all sorts of people with criminal records. In fact, only four of the inmates on the list had actually been released under the authority of the Parole Board of Canada!
In , there was a rash of bank robberies in the Toronto area. Deputy Police Chief Jack Marks declared that nearly 40 per cent of those charged with robbery were
"either escapees, on parole, on bail or on temporary absence programs." The Toronto Sun ran the story under the headline
"Cops seek parole reform: 40 per cent of robberies by repeaters: Deputy Chief." On CFTO's Hour Long program, a spokesman for the Parole Board of Canada had to patiently explain that parole reform would do nothing to stop crimes by bail jumpers and escapees.
In , Leander Savoury, who was out on mandatory supervision, robbed an all-night gas bar. Savoury was shot and killed by Toronto police after refusing to surrender. Both The Globe and Mail and The Toronto Star erroneously described Savoury as being out on parole. Other media did the same. The distinction between parole and mandatory supervision was apparently unimportant to some reporters. Perhaps the word "parole" fit better in most newspaper headlines.
Outerbridge later recalled his
"consuming frustration" over
"the enormous efforts expended to set the record straight in this and other instances to a public who did not appear to wish to listen." Board employees were reluctant to talk about their job because they were tired of hearing the old jibe,
"So you're the ones who keep letting all those crooks out."
A public opinion survey in the mid-1980s found that nearly 60 per cent of respondents thought the Board was too lenient. Canadians also thought that more than 50 per cent of offenders released on parole committed crimes of violence soon after release. (The actual figure was about 13 per cent.)
A big part of the problem was that Canadians tended to vastly overestimate the amount of violent crime in society, possibly because they got most of their information about crime from American media. Canadians' fear was out of all proportion to the real risk. Between and , total offence rates had tripled, but most of these crimes were against property. In , violent offences represented only 5.7 per cent of the total number of crimes reported to police.
The most prevalent misconception about parole was that it was the end of the sentence. In , the John Howard Society of Alberta said,
"No amount of public relations work by government and parole officials to try and convey the notion that parole does not, in any sense, mean unconditional freedom seems to be effective."
People on both the right and the left of the issue seemed to hold this belief. The law-and-order side continued to accuse the Board of frustrating the ends of justice by "interfering" with the sentence of the court. For example, in a judge in Ontario gave Richard Stephens a sentence of 21 months for manslaughter. The government received a petition signed by 215,000 people protesting that this was too lenient. The Crown appealed the sentence, and the Ontario Court of Appeals bumped it up to three years. After a period of imprisonment, the Parole Board of Canada allowed Stephens to go out on day parole. The Attorney General of Ontario immediately slammed the Parole Board of Canada for undermining the system.
A Duty To Act Fairly
The Canadian Charter of Rights and Freedoms became law in , and the judgements arising from Charter cases presented challenges beyond the imagination of the framers of the original Parole Act of . The difficulties involved in making parole decisions greatly increased as the rights of the inmate were defined and expanded.
In , the Supreme Court of Canada dealt with the case of an inmate whose parole was revoked and who had not been informed of the reasons for revocation or given an opportunity to be present at a hearing to challenge the decision. The Court ruled that it was an administrative matter, not a judicial determination, and the inmate lost his case. Two other appeals ended the same way.
The Charter changed everything. Even in its administrative functions, the correctional system was now under a general "duty to act fairly." This meant that all decisions affecting inmates had to follow procedural safeguards. Under common law rules of fairness, an individual who may be adversely affected by a decision about to be made by an administrative board or tribunal is entitled to adequate notice of allegations against him and must have the opportunity to reply. Thus, it became almost impossible to conduct meaningful discussions of any case except in the presence of the offender. Eventually, all information used in parole decision-making would be shared with the offender.
The new mechanisms imposed to ensure fairness would vastly increase the Board's workload. Precious resources had to be diverted to cope with the many legal issues that soon arose.
At street level,
"the Charter changed a lot of things," according to Hélène Chevalier (who became Executive Director of the Parole Board), who was a parole officer at the time. Before the Charter, she says, parole officers had much more freedom to intervene in the lives of the people they supervised. She recalls a typical incident involving one of her charges, a fraud artist, who had been forbidden to drink as a condition. Tipped off by the man's jealous wife, she found the man getting drunk with his girlfriend. She apprehended him on the spot, without a warrant, and hauled him back to the institution. After the Charter, this kind of swift action became more difficult: the legalities had to be observed.
The Murder of Celia Ruygrok
In , Celia Ruygrok, a 21-year-old university student who had been working at a John Howard Society halfway house in Ottawa, was found dead. Allan James Sweeney, an inmate of the house, was arrested the same day and charged with first degree murder.
In the aftermath of the killing, the various authorities involved tried to come up with an explanation for the tragedy. An inquest decided that Ruygrok might not have died if the right information had been available at the right time to the right people.
Allan James Sweeney had been sentenced to life imprisonment in , when he was 19 years old, for the murder of a young woman in Sault Ste. Marie. There were sexual aspects to the murder that Correctional Service officials did not know about when Sweeney was first imprisoned.
Sweeney was well behaved in the institution, and all his psychological reports were good. He was given more and more privileges and gradual-release opportunities. He was granted both escorted and unescorted temporary absences over a two-year period, and there were no problems. It seemed safe to grant him day parole in a halfway house.
In hindsight, the John Howard Society maintained it would never have accepted him as a resident in the house had its staff known all the details of his offence. In any event, he was granted a six-month parole to the house in . In , Sweeney was granted full parole to live with his long-time girlfriend.
In , Sweeney's behaviour deteriorated and his parole was suspended. On , it was reinstated on condition that he go back to living at the halfway house. Ruygrok reported to her supervisor by telephone that Sweeney had arrived at the house and was acting strangely.
The jury at the inquest made a number of recommendations to improve the collection and sharing of information about offenders among police, Crown counsel, and corrections, parole and voluntary agencies.
"There must be no confidentiality with respect to any information involving a parolee when any danger to the public or any individual is involved."
Sweeney received another life sentence with no possibility of parole for 25 years. The Board tried to implement some of the jury's recommendations, but there was still no way to anticipate every possibility.
Listening to Victims
From the point of view of victims of crime, conditional release is probably the most contentious issue in corrections. Although Canadian victims' organizations have not called for the outright abolition of parole (as have their U.S. counterparts), they have asked for substantial reform.
Although the Parole Act had nothing to say about victims' interests, the Board adopted an informal policy in the 1980s of meeting some of their requests.
What victims wanted more than anything else was information. They were especially interested in when, why, how and where their attackers would be released. The Parole Board began to inform victims of the parole date for the person who had harmed them. Staff in the regions also began to take steps to see that offenders on parole did not harass their victims. Victims' groups often asked for information about the location, treatment and release of all offenders in their area, but this was not granted.
After fourteen years at the helm of the most tumultuous period in the history of parole in Canada, Outerbridge retired in . He was succeeded by Ole Ingstrup, who had been a lawyer and a prison administrator in his native Denmark before coming to Canada in .
Under Ingstrup, the drive continued to establish formal decision-making policies and to make the whole decision-making process more transparent and objective. Also under his tenure, the Board developed and published its first Mission Statement in :
The Parole Board of Canada, as part of the Criminal Justice System, makes independent quality conditional release decisions and clemency recommendations. The Board, by facilitating the timely reintegration of offenders as law-abiding citizens, contributes to the protection of society.
In the late 1980s, the Board was battered by public anger over the release of inmates who went on to commit heinous crimes - typically, however, not one of them had been released by the Parole Board. In the summer of , Daniel Gingras escaped while on a temporary absence from an Alberta institution and killed two people before he was apprehended.
In the winter of , Melvin Stanton, a violent sex offender, was granted a temporary absence from an Ontario penitentiary. Within hours, he had raped and murdered a young woman in Toronto. In the summer of , Joseph Fredericks, a paedophile on mandatory supervision, was responsible for abducting and killing an 11-year-old boy in Brampton, Ontario.
Inquests into violent incidents involving people on conditional release almost always focused on the quality of the Board's decision-making. The Board's "unfettered discretion" made a lot of people uneasy.
In the United States, parole was under fierce attack, and discretion, it seemed, had become a dirty word. Americans appeared to have little confidence in the judgement of their parole boards. Several states had abolished or severely restricted parole in the hope this would solve the "problem" of discretion.
In , the Canadian Sentencing Commission recommended that parole be abolished. The Commission asserted that it was up to the sentencing judge to decide how much time an inmate should serve in prison. The parole system, it argued, was working at cross-purposes to the sentencing system.
The Law Reform Commission called for the disbanding of the Parole Board of Canada in favour of a "sentence supervision board." Ontario Supreme Court Justice Allen Linden, Chairman of the Law Reform Commission of Canada, expressed his personal opinion that all discretionary parole should be abolished in favour of what he called "benchmark sentences."
Outerbridge had maintained that the issues involved were subtle and complicated.
"We must achieve a balance in corrections between discretionary power and flexibility on the one hand and rules, uniformity and equity on the other," he told a conference of correctional workers.
"Otherwise one form of tyranny might be replaced by another."
There were also questions raised about the background and qualifications of Parole Board members. In , 85 per cent of Parole Board of Canada (PBC) members had held occupations related to criminal justice before their appointments. Ten years later less than half of them had held such jobs. The Conservative Government's Task Force on Program Review (1986) found that training of new Board members was inadequate. Typically, it consisted of a three-day orientation period and participation in a mock hearing.
According to Hélène Chevalier, some novices were so ill prepared for the real thing that they would go into a state of panic at the prospect of visiting an institution and dealing with actual inmates.
Many people believed that the Board's effectiveness was weakened by appointments that were made, more on the basis of political patronage, than on qualifications. One observer told the Standing Committee on Justice in that some members of the Board with political connections were not pulling their weight - they considered themselves
"anointed rather than appointed."
Theoretically, the two most valuable qualities in a Board member are expertise in the field and responsiveness to the community. Unfortunately, these traits could lead to a paralysing ambivalence. A member's professional insight might lead him or her to believe that an inmate was ready for parole, but political instinct might discourage the member from risking any bad publicity.
In , Fred Gibson succeeded Ingstrup as Chairman. Gibson had been a Deputy Solicitor General.
By Gibson's time there were more than 120 Parole Board of Canada members across Canada: 29 full-time members, 45 temporary members, and 47 community members. Gibson noted soon after his appointment that, many of the Board members "have little or no experience in government and many have limited experience with criminal justice." Gibson pressed for greater professionalism. He declared he would put a high priority on providing more formal training and education for Board members.
Gibson also wanted to make it a priority to devote more time to explaining parole to Canadians. Gibson told the correctional magazine Lets Talk in ,
It's very important to help the public understand how the parole system works. We have a major responsibility to ensure three things: first, the public must understand the nature of the criminal justice system; second, they need to realize the options aren't black or white; and third, people must understand the effectiveness of the system we have in place.
In a Focus Canada Report by the Environics research group found that 7 out of 10 people in this country thought lawbreakers were dealt with too lightly, and fewer than half said they had confidence in the justice system. Less than 5 per cent of respondents, however, expressed any confidence in the Parole Board of Canada compared to the other components of the justice system such as the Police, the Crown, the Courts and correctional agencies.
Canada launches the "What Works" Revolution
For the first three-quarters of this century, Canadian penologists tended to look to the United States, Britain or the Scandinavian countries for leadership in corrections. After , that trend began to reverse. The Canadian system began to innovate and to become a model for other countries.
Part of the reason was a much greater emphasis on research and a willingness to experiment. Canadian researchers had amassed a great deal of information about the factors that contributed to criminal behaviour —
"criminogenic factors". They had also developed prediction tables, risk assessment instruments and were able to identify which programs were effective and which were not. New programs emerged, based on research not on
"keeping them busy". Canadian researchers largely rejected the fatalistic "nothing works" attitude of many of their American counterparts. Ole Ingstrup insisted that
"something works for most" and strongly supported efforts to find out what that something was.
The new interest in research had its effect on the Parole Board. By the late 1980s, many people were losing confidence in the old model of decision-making based on personal experience and insight. Many believed that science and technology could provide more objective and reliable information.
The Board was urged to adopt prediction scales of parole success developed by social scientists. Prediction scales were derived from the study of thousands of parole cases and were based on factors common to successful parolees. Above a certain score, the offender could be expected to complete the parole period without committing another offence. It was thought that using such devices could reduce the influence of personal whim and prejudice in parole decisions.
Prediction tables were first used for the guidance of parole officers in the Illinois corrections system in . Interest in actuarial methods increased after World War II because of the prestige of systemic quantitative analysis for military purposes (such as the effort to find predictors of battlefield breakdown in soldiers). Prediction tables, however, were not widely adopted in corrections in North America until the 1970s.
In , the Parliamentary Standing Committee on Justice and the Solicitor General released a major report on federal corrections entitled Taking Responsibility. The report made numerous recommendations for reform, emphasizing the need to restore public confidence in criminal justice, and for greater openness, accountability and effectiveness. Unlike the Sentencing Commission, the Standing Committee (chaired by David Daubney) did not go so far as to recommend the abolition of parole. It called for an end to earned remission, but it concluded that some form of conditional release should be retained, as long as there were adequate safeguards to protect the community.
In , the Government tabled its response to the Justice Committee. The government's response entitled, Directions for Reform, spanned the entire criminal justice system, from sentencing, to sentence administration and conditional release. The report, which was used to consult widely with Canadians, proposed wide sweeping reforms focussed on greater public safety through improvements of correctional effectiveness. It was the precursor to the next step in legislative change that would see the repeal of the Parole Act of and the Penitentiary Act of to be replaced with new legislation named, The Corrections and Conditional Release Act.
In the 1960s, Frank Miller used to talk about parole as society's ultimate defence against the lawbreaker. Thirty years later, the idea of social defence would be enshrined in law.
Part 7 - The Parole Board of Canada (PBC) during the last decade
The Management of Risk
The defining event of the 1990s was the enactment of the Corrections and Conditional Release Act (CCRA) on . The CCRA replaced the old Penitentiary Act of and the Parole Act of with a new comprehensive legislative framework for federal corrections and conditional release.
The CCRA was the culmination of many years of work involving the integration of research findings, the knowledge and experience of correctional workers and the views of many ordinary Canadians. The new legislation reflected many diverse perspectives and presented many challenges and opportunities. New expressions, born out of research, had found their way into the lexicon of corrections and were formally acknowledged in the new legislation - "risk assessment" and "risk management".
The Parole Board of Canada's role in deciding on any form of conditional release is to assess the risk an offender represents to commit a new offence. Whether it's for a temporary absence, a day parole or a full parole, the Board member's primary consideration is whether there is a risk to re-offend and, secondly, to anticipate the nature and seriousness of the offence if the offender should recidivate. The new legislation drew a careful distinction between violent and non-violent recidivism.
The many reforms that found expression in the CCRA were reflected in three major themes — public safety and reintegration; openness and accountability; and procedural fairness.
Public safety and reintegration
Purpose of parole
When the Ticket of Leave Act was promulgated in , parole was considered an experiment. No one quite knew how it was going to work. The rules set out in the Act were so vague and elastic that they could be interpreted in many different ways.
Over the next 100 years, practical experience with parole led to a steady evolution in the legislation. With the Parole Act of , the Criminal Law Amendment Act of , and other statutes, the legislation on parole had become progressively more detailed and specific. The Ticket of Leave Act was only five pages long; the CCRA has 52 pages on parole and conditional release.
The Ticket of Leave Act said absolutely nothing about the purpose of parole. The Parole Act of described three criteria the Board should consider before granting parole:
- the inmate had derived maximum benefit from imprisonment;
- the reform and rehabilitation of the inmate would be aided by the grant of parole; and,
- the release of the inmate on parole would not constitute an undue risk to society.
Subsequent legislative amendments tried to strike a balance between the rights and needs of the offenders and the rights and needs of society. The CCRA made it clear, however, that the balance would always have to tilt toward public safety and declared that the fundamental purpose of the Canadian correctional system is to protect the public.
New measures emphasize public safety
The CCRA contained many new measures to emphasize public safety and risk assessment; in particular, risk assessment for violent offenders. The Board retained authority to approve unescorted temporary absences for offenders serving a life or indeterminate sentence, for offenders sentenced for a violent offence and for offenders referred for detention.
The new Act emphasized the need for timely and reliable information about offenders. This had been a chronic problem in corrections and was cited in a number of inquiries and investigations into community incidents that resulted in serious injury or death. For Parole Board members information was critical for effective risk assessment. The Act recognized the importance of information flow across the justice system; it is the glue that joins together all the components of criminal justice and corrections.
Correctional staff members were required to take all reasonable steps to obtain all relevant information, including reasons for sentence, recommendations of the sentencing court and police reports. Parole Board members were required to review all of this information to determine the offender's risk to re-offend.
There were also a number of changes to various release programs. The purpose of day parole was clarified. It is now to be used as a preparation for release on full parole or statutory release. Eligibility for day parole was moved to six months before full parole eligibility, as opposed to the one-sixth point of the sentence prior to the CCRA. This was expected to result in offenders with sentences of more than three years serving longer periods in institutions prior to day parole eligibility. The CCRA also required offenders to apply for day parole as opposed to an automatic review by the Board, which was the case prior to the new Act.
Reform of full parole also reflected concerns for public safety. The CCRA provided sentencing judges with the authority to set full parole eligibility at one-half of sentence for violent and serious drug offenders. Previously it had been set automatically, in most cases, at one-third or seven years, whichever came first.
The CCRA introduced accelerated parole review (APR) in which first-time, non-violent federal offenders were to be directed for release on full parole if it was deemed unlikely they would commit a violent offence prior to warrant expiry.
Earned and statutory remission was abolished; it had become a nightmare to administer.
Mandatory supervision was replaced with statutory release. All offenders serving sentences of fixed length would be automatically released on statutory release to serve the last third of their sentence in the community.
Offenders serving life or indefinite sentences are not eligible for statutory release. Statutory release is a release by law rather than a decision of the Parole Board of Canada. Even if an offender had been denied parole, or his parole was revoked, the law still required that he be released after two thirds of his sentence had elapsed, to serve the rest of his term in the community.
While the Parole Board has no authority to grant statutory release, it does have the authority to set conditions and revoke the release for failing to abide by those conditions. The Board also has the power to "detain" an offender in prison until the expiry of the sentence. Detention is a mechanism for managing offenders who are considered to pose a serious risk for committing an offence of violence, and who are about to be released at the two-thirds point in the sentence.
The list of violent offences used as a criterion for referral for detention was expanded to include additional sexual offences. Offenders convicted of serious drug offences could also now be referred for detention. A list of serious drug offences was added to the Act in recognition of public concern over the importation and trafficking of drugs, and their links to organized crime.
The CCRA clarified the criteria for suspension, termination and revocation of conditional release. Offenders revoked on statutory release became ineligible for subsequent release on statutory release for six months, or two-thirds of the remainder of the sentence.
Openness and Accountability
The CCRA also reflected a widespread recognition of the need for greater openness and accountability in corrections and parole. This was considered essential to restoring public confidence and achieving a better public understanding of corrections and conditional release. Three new provisions would have a significant impact on the operations of the Board.
Firstly, and for the first time ever, the role and entitlements of victims were provided in legislation. Secondly, provision was made to allow people to attend parole hearings as observers. And, thirdly, the Act called for the establishment of a decision registry that would allow people, on written request, to obtain copies of the written decisions of Parole Board members.
The CCRA formally recognizes the role of victims of crime in the corrections and conditional release process. It gives victims the legal right to receive information about specific offenders. The Act requires (PBC) to disclose information about an offender when victims, as defined by the Act, request it. Victims are also allowed to submit an impact statement in writing for the Board's consideration in its decision-making.
The Act also provides (PBC) with authority to permit observers at hearings. Hearings had previously been closed to the public. Only Board members, correctional staff and the offender could attend. Since the CCRA was enacted, victims and victims' groups have represented 40 per cent of the observers at hearings. The legislation also made it possible for other interested parties, including the media and members of the general public, to attend parole hearings as observers.
Prior to the CCRA, decisions of Parole Board members were contained in short, cryptic and oftentimes, handwritten notes with little explanation of the reasons and rationale for the decision. That would change dramatically under the CCRA. The new Act required the Board to maintain a record of their decisions and make them available to people on written request. Decisions could also be made available to scholars and university students for research purposes.
Parole Board members would now be required to write down their decisions, including their reasons and rationale for granting or denying parole. They also had to be trained in how to write their decisions ever mindful they would now be available in the public domain and studied with scrutiny. Thousands of these decisions have been made public in the past decade.
Procedural Fairness: a Duty to Act Fairly
When the Canadian Charter of Rights and Freedoms became law in , the judgements arising from Charter cases presented challenges beyond the imagination of the framers of the original Parole Act of . The challenges involved in making parole decisions greatly increased as the rights of the inmate were defined and expanded.
In , the Supreme Court of Canada dealt with the case of an inmate whose parole was revoked and who had not been informed of the reasons for revocation or given an opportunity to be present at a hearing to challenge the decision. The Court ruled that it was an administrative matter, not a judicial determination, and the inmate lost his case.
Two other appeals at that time ended the same way.
The Charter changed everything. Even in its administrative functions, the correctional system was now under a general "duty to act fairly." Under common law rules of fairness, an individual who may be adversely affected by a decision about to be made by an administrative board or tribunal is entitled to adequate notice of the information that will be used by the Board and be given the opportunity to reply. Also, the offender was to be allowed to have an assistant who could help prepare the offender and speak on his behalf at hearings. Face-to-face hearings had been introduced by the Board because it made good corrections sense. With the CCRA, hearings became obligatory unless the offender chooses to waive that right.
The CCRA entrenched into law all the processes and requirements for fairness and equity in decision-making. Legislated statements of purpose and principles were perceived as critical for fairness and equity. These statements were reinforced in the Act with legislative provisions that provide clear criteria to govern the decision-making process.
The new Corrections and Conditional Release Act would fundamentally change how the Board conducted its business.
In , Fred Gibson was appointed a judge in the Trial Division of the Federal Court of Canada. Michel Dagenais, who had been Vice-Chairman of the Parole Board for two years, was promoted to Chairman.
Dagenais had excellent political connections but little experience and no credibility in the corrections and criminal justice community. A rash of tragic incidents in the late 1980s and early 1990s involving offenders on conditional release had once again put the Parole Board on the defensive. At a time when the Board desperately needed a convincing spokesperson, Dagenais could not effectively defend the Board's decisions.
At an appearance before the Commons Justice Committee, Dagenais was accused of misleading the members. When confronted with this and informed of the consequences he had little choice but to step aside as chairman although he continued to serve as a Board member for the Quebec Region until his death in .
A New Start
The process of government appointments had been a major source of controversy since the political leaders' debates of the federal election that ushered in a new conservative government. Throughout the conservative era, accusations of "pork barrel" politics continued to plague the government. In their famous red book of , the Liberal party noted that this had become a major sore point with the electorate. People had become cynical and had lost faith in the parliamentary system. The Liberals promised to restore confidence in government institutions and the appointment process for various boards, agencies, tribunals and commissions.
They say that every crisis is an opportunity. For several months after Michel Dagenais had stepped down the position of chairman remained vacant. Morale sank to an all-time low; some say the Board came close to dissolving.
After the federal election of , Herb Gray, a seasoned political veteran and Cabinet Minister from the Trudeau era, was appointed as Solicitor General of Canada. He knew the problems associated with the appointment process and he was well aware of the commitment made in the red book. The time was ripe for the new liberal government to
"do something" about the Parole Board and the appointment process of its members — starting with the chairman.
Willie Gibbs was the senior deputy commissioner of the Correctional Service of Canada when he was invited to apply for the job of chairman. With almost 30 years in corrections, he was very familiar with the workings of the Parole Board of Canada and aware of the predicament it was in. He applied for the job and was invited to an interview.
When Gibbs was being interviewed Gray asked him how he might go about changing the appointment process for Board members. Gibbs told him quite simply that if you wanted competent decisions you needed competent Board members. This would be key to restoring the Board's credibility. Gibbs and Gray agreed that henceforth Board members would be selected on their competence and ability and appointed strictly on merit. As one of three candidates for the chairman's job Gibbs had been put through a rigorous investigation. With Herb Gray's support he would now put new prospective candidates through the same hoops and would launch a number of badly needed reforms at the Parole Board.
A Baptism of Fire
Willie Gibbs was at his cottage in New Brunswick when he got the news that his appointment as chairman of the Parole Board was about to be officially announced. Gray gave him 48 hours advance notice. Many media calls were anticipated,
"but I never thought it would be the onslaught that I got," said Gibbs. He scarcely drew a breath for the next three days; he did one interview after another for print, radio and TV journalists.
"It was," he says,
"a baptism of fire."
No one questioned his qualifications. Gibbs had started his career as psychiatric social worker. He spent his first two years after university working with the mentally ill. A field placement with the John Howard Society got him interested in corrections. In , he started work for CSC as a parole officer. He subsequently rose to supervisor of classification and psychological services; Warden of Springhill Institution, in Nova Scotia; Director General of Correctional Operations; Deputy Commissioner of the Atlantic Region and then Senior Deputy Commissioner at national headquarters in Ottawa.
The new Chairman decided that, in all his contacts with the media, he would give the same consistent message:
"Despite the fact that we have numerous offenders incarcerated for violent offences, we will not release violent offenders." He tried to explain the crucial difference between offence and offender. A person who committed a violent offence in may change during his imprisonment so that he is no longer a violent person when he is released on parole 10 years later.
Throughout his tenure and up until his retirement in , Gibbs continued to make himself available to the media, criss-crossing the country to meet with editorial boards, to do interviews with radio and television dispelling the myths of parole.
During , the 100th anniversary of parole in Canada, the Chairman took the opportunity during media interviews to recount the history of parole, and how it evolved into an effective strategy for protecting the public. While there will always be media headlines about parole failures, there were a number of headlines during the 100th anniversary year claiming that "parole works!"
Within the Parole Board, Gibbs promoted equal use of French and English and a more collegial relationship between the appointed members of the Board and its public servants. His greatest achievement, however, has been to dramatically improve the calibre of Parole Board members.
Members now go through a much more rigorous screening process. They get much more training than before, with a strong emphasis on risk assessment. They are subject to an annual performance appraisal and must follow a code of conduct. Although they cannot be "fired" in the usual sense, they can be removed from office after a hearing before a judge. In the Chairman's view, the key to high-quality decisions is high-quality decision-makers.
How to get on the Parole Board
In the past, when there was an opening on the Parole Board, a candidate or candidates would be recommended to the Prime Minister's Office by Cabinet Ministers and government backbenchers. Many would receive their letters of appointment without any advance notice that they would be appointed or, in some cases, even aware that they were being considered. It was said Board members were anointed rather than appointed. That would all change with the appointment of Willie Gibbs as the sixth chairman of the Parole Board of Canada in .
Gibbs quickly began to work on changing the selection and appointment process of Board members. Notices of vacancies would be advertised in the Canada Gazette, and anyone could send in their resumé.
Applications were reviewed by the Chair and Vice-Chair and assessed against a set of criteria. It would no longer be a question of who you knew, but what you knew. Candidates would be judged on their knowledge and experience of the criminal justice system; their ability to interview, analyze and make decisions; their ability to work as part of a team; and their sensitivity to issues involving women, Indigenous people and other cultures.
Candidates who made the short list were called in for a face-to-face interview with the chairman and senior Board members. They were presented with a hypothetical case and expected to give convincing reasons why they would, or would not, grant parole. The names of qualified candidates were forwarded to the Solicitor General, who made his recommendations to the Prime Minister's Office. New members were appointed only from that qualified list.
In the 1980s, training was informal and rather cursory. New members went through a three-day orientation, which included a mock hearing. After that, they basically learned on the job, with coaching from more experienced colleagues.
Today, members are much better prepared. Newly appointed members must take an intensive three-week orientation course before they are allowed to sit on a parole panel. Their training also includes visits to institutions, halfway houses and parole offices. New members then start to review cases with the help of a veteran. There is a test at the end of the orientation period, to gauge their knowledge and skills.
The next stage is field, or on-the-job, training. During this period, which lasts about six months, the new Board member will only be allowed vote on cases with the help of an experienced member and will get regular feedback on performance.
In addition to the initial training, every member receives a further 15 days of professional development every year in the form of workshops, conferences and self-development courses.
Training of Board members incorporates the latest in corrections research. Lessons learned from Boards of Inquiry are also part of the curriculum. The Board's Executive Director, Hélène Chevalier, says training
"now has a much more professional character. It is more structured and measurable, and that is reassuring to members. They feel much more secure in their decisions now."
The Great Work Ahead
In , when Walter Archibald was offered the job of Dominion Parole Officer, he wrote of his enthusiasm for the "great work ahead."
If Brigadier Archibald could travel in time and see how the work is progressing, what would he think?
He would, of course, be staggered by the sheer size of today's operation. The Parole Board of Canada has an operating budget of more than $30 million a year. There are about 95 board members; 45 full-time members and 50 part-time. Besides the members, the Board employs 285 people at the national and in the five regional offices. The Board makes about 25,000 decisions a year. At any given time, about 9,500 people are serving out their sentences in the community under supervision.
He would be impressed by its expertise. The Parole Board of Canada has learned a lot, much of it the hard way. It is now a disciplined, professional organization with a considerable bank of knowledge and experience to draw on.
Archibald would be gratified to see that the federal paroling authority in Canada had finally become a truly independent administrative tribunal. In , allegations surfaced in media reports that the Correctional Service had adopted a "quota" system for releasing offenders into the community. The Board was implicated because it was the releasing agency.
But Willie Gibbs vehemently denied the Board operated under any quotas. He reminded the media that the Board is an independent agency that makes its decisions on a case-by-case basis, with the protection of the community as its first and foremost consideration. The Board exercises its authority without interference from anyone or anything. Board members cannot be told how to vote, not by the Solicitor General; not even by the Chairman.
Most important, Archibald would see that in addition to the "professionalization" of parole, there is still a deep core of idealism in many of the people who work for the Board. He would hear an echo of his own beliefs in the Chairman's statement to the Justice Committee in that the 100-year history of parole
"reflects Canadian values of compassion and fairness and recognizes that people can and do change."
We have seen through the pages of this seven-part series, that parole in Canada has had a long, progressive and interesting past. Throughout the years, although there were many changes, the fundamental principles remained intact for a century, since Henry Clermont was released from St. Vincent de Paul Penitentiary on . And change will continue. When the Corrections and Conditional Release Act was passed into law, it contained a clause requiring it to be reviewed by Parliament after five years. At time of writing, that review by the Parliamentary Standing Committee on Justice and Human Rights has just been completed and the government has responded to fifty-three (53) recommendations calling for further change and refinement.
The Parole Board of Canada is proud of its long history and the contribution it continues to make in ensuring the safety of the community and the reintegration of offenders. That it has endured for a hundred years, is a tribute to:
- The pioneering efforts of enlightened reformers and private citizens in the late 19th century.
- The legislators and parliamentarians who recognized the value of conditional release to the reintegration of the offender and its contribution to the protection of society.
- The countless thousands of professional men and women who work with offenders and believe that offenders can and do change.
- The contribution and support of non-governmental organizations as well as thousands of volunteers and private citizens.
- The countless thousands of offenders who did change and became law-abiding citizens.
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