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Alison Craig, Posner Craig Stein LLP

‘Crisis’ in federal correctional institutions due to parole programming backlog, lawyer says

Tuesday, June 28, 2022 @ 12:57 PM | By Amanda Jerome

A parole programming backlog in federal institutions across Canada is creating lengthy delays for inmates eligible for release. Lawyers are raising the alarm over this access to justice issue and calling on the Correctional Service of Canada (CSC) to clear the backlog.

Alison Craig, a founding partner of Posner Craig Stein LLP in Toronto, raised a red flag about the parole program backlog and its impact on inmates in a series of posts on Twitter. She wrote that there’s “currently a crisis with the federal correctional and parole systems” and that “federal offenders are staying in custody months or even years longer than they should.”

In an interview with The Lawyer’s Daily, Craig explained that “when COVID hit, for understandable reasons, [parole] programing was cancelled.”

She noted that programing has restarted recently, but “nothing was done to clear the backlog.”

Alison Craig, Posner Craig Stein LLP

Alison Craig, Posner Craig Stein LLP

“No video programs were implemented, no extra programing was implemented. Nothing was done to clear the backlog. Now everybody is reaching their eligibility dates, but they can’t get parole because they haven’t completed their program, and it’s happening to everybody,” she said, stressing that the situation is “infuriating.”

Craig explained that when an individual is sent to a federal penitentiary, they’re given upon admission a correctional plan which includes “at least one major program that they’re told they have to complete.” If an individual has not completed the program, their parole office will not support their release and then “the board will do whatever the parole officer recommends.”

Some of Craig’s clients “will put so much work into preparing their own substitutes” to parole programing in order to be eligible for parole, she noted.

“I had a guy a couple weeks ago, he had a 20-page release plan that he put together himself and gave to the board that included various community programs that would be the best substitutes he could find and still that wasn’t good enough,” she said.

Craig is raising the alarm because a parole programming backlog creates “so many problems.”

“The first problem is that when we as lawyers are giving our clients advice about resolution positions and plea deals, the very first thing they [the client] always want to know is when they’ll be eligible for parole and when they’ll be able to go back to their family. None of that advice is accurate now, so even from the first stage when a person pleads guilty, this is now creating a problem because we can’t tell them they’re going to be getting parole when they’re eligible,” she said, stressing that parole exists for a reason.

“It’s there because gradual release has been shown to be the most effective way to reintegrate someone into society successfully. When you’ve been in the penitentiary for four years, five years, six years, and the door is just opened and you’re kicked out, and your sentence is done and they say, ‘goodbye, good luck, sir.’ People have nothing there to support them. They don’t have the program that’s available during gradual release. They don’t have anything to help them reintegrate, so it can also be a major factor in causing the criminogenic cycle to repeat,” she said, noting people released immediately have issues renting an apartment or finding a job after being in the penal system for so many years.

Craig sent an e-mail to Anne Kelly, the commissioner of the Correctional Service of Canada, at the end of May highlighting her concerns with the parole programming delay, noting many of her clients were long past their eligibility dates, but were still being advised by parole officers to push back their parole hearings because their correctional plans were incomplete.

“The failure of CSC to make any accommodation has rendered the entire parole regime — which is prescribed by law — completely moot,” she wrote to Kelly.

Craig received a response a couple of weeks later. She noted the commissioner’s reply concluded with: “CSC and the Parole Board of Canada continue to process eligible offenders for release in accordance with the law. A number of considerations go into release decision- making with public safety being a paramount consideration and although the COVID-19 pandemic has had an impact on program delivery, we continue to focus on ensuring programs are delivered in a timely way before an offender is eligible for parole release.”

“That is, quite frankly, false. That’s not being done. That was the conclusion of her response, but it’s completely untrue,” Craig stressed.

Craig noted that anyone who “practises parole law will be in the same position” as her with “dozens of clients who are facing this issue.”

“I’m sure it’s countrywide. There’s no question,” she said about the issue.  

Craig believes there are two “obvious” solutions to the problem: 1) increase programing, and 2) provide video programming.

“As I understand it, there’s only still one class at a time being run, just like pre-pandemic levels. Increase that. Have two, or three, or four going on at the same time, so that the backlog can be cleared. If for whatever reason they see that as unfeasible because of COVID concerns and crowding, do them by video. We have video court; we have video everything! Why can you not have offenders doing this by video?” she said, noting that there’s “absolutely no reason, other than a complete lack of care to bother doing it, that this cannot be done by video.”

The most important thing for lawyers to be aware of, Craig said, is to start raising this issue with clients “when they’re considering pleading guilty and asking about their parole eligibility.”

“I think we have to be honest with our clients that they’re not going to get parole when they should be because of this issue. And I don’t see an end to it coming any time soon, so I’ve really started to make that clear to people. Unfortunately, it’s not going to be two years anymore. It’s going to be two and a half to three, three and a half, until you’re finally done everything you need to do,” she added.

Correctional lawyer Simon Borys

Correctional lawyer Simon Borys

Simon Borys, a former police officer turned correctional lawyer and Criminal Lawyers’ Association member, also has clients being impacted by the backlog.

“This has been a problem for almost all of my clients, at every federal institution, since the pandemic started. Programs are either cancelled, or running with reduced class sizes, and there are often delays when units are shut down due to COVID outbreaks or even COVID scares, so for people who are in programs, they are taking much longer than they used to and that also means that many are still just sitting on a waiting list for programs and have been for months or even more than a year,” he explained.

Borys, who has a practice in Kingston, Ont., and regularly appears before the Parole Board of Canada (PBC), said delays in programming “directly result in either delays in going for parole (i.e. the inmate waits to finish their program in order to apply and increase their chances of success at the hearing) or in significantly reduced chances of success at the hearing (i.e. the inmate doesn’t wait to finish their program and as a result, even if they are in the program when they see the board, they are assessed as program incomplete, which is not good from a risk management perspective).”

Like Craig, Borys noted that “if clients are factoring parole prospects into their decision whether to resolve a case for a federal length sentence, criminal lawyers should not let their clients think that parole eligibility dates equate to when they will get a parole hearing.”

“An inmate needs to apply for day parole six months before they want to have their hearing, and if they want to have a good chance of success at that hearing, they are often well advised to hold off on applying for parole until they are close to the end of their program, so that the program is complete, and they have the final program report when their parole officer starts to do up the paperwork for their parole and sends out the community assessment, which starts about two months after they apply for parole,” he said, noting that “given the backlog in programming, this means that lots of (probably most) inmates serving sentences of less than four years will not get a hearing until sometime (perhaps a great deal of time) after they are eligible for parole — at least, not if they want to maximize their chance of success at that hearing.”

Borys stressed that “CSC is solely and unilaterally responsible for delivering programming to inmates.”

“They have had over two years to address this problem and, in my respectful opinion, they have failed to do so adequately,” he added, noting there has been “no consistency since the pandemic started about how programs are run at the different institutions.”

“This makes sense, to some extent, given the different needs of each institution with respect to things like how the population is divided up into cohorts and bubbles, lockdowns of differing durations and modified movement routines. However, in my respectful opinion, the difficulty and complexity of this situation seems, in many cases, to have been an excuse to just give up on trying and wait for it all to be over in the hopes that things will just go back to normal, but they won't (at least not anytime soon) because there is now too big a backlog of inmates who need programming,” he explained. 

Borys has heard from some of his clients over the past two years that “their program has been switched to more of a self-study model so that they could actually continue working on it, even if they could not meet in a normal classroom, but this seems to be the result of individual program facilitators at some of the institutions who cared enough to get creative, because this has certainly not been implemented across the board.”

Borys also noted that “from the outset, inmates know what their parole eligibility dates will be” and the “sentence calculation sheet is one of the first documents they receive when they get to the penitentiary.”

“Even before they are convicted, they can do the calculations to figure out when they will be eligible for parole, if they know how much time they are getting. In my view, inmates have a legitimate expectation that if CSC prescribes something for them to do to prepare them for parole, then, in general, CSC will (or should) provide the opportunity to do that before their parole eligibility dates,” he said. 

“The fact that has proven to not be the case for many inmates over the past two years undermines inmate confidence in the fairness of the correctional system and, more broadly, the whole justice system,” he stressed.

In Borys’ experience, the “inmates who most need the programs that CSC offers are often the most marginalized and disadvantaged (and often racialized or Indigenous as well).”

“These are the people who are less likely to get bail and, if they do get bail, less likely to be able to access interventions and supports prior to coming into custody (because they can’t afford to pay for it privately and wait lists for publicly funded options are too long),” he explained, noting that CSC “has the potential to be an equalizer between inmates with resources to help themselves and inmates without such resources, so that all inmates can go for parole with at least a reasonable prospect of success, having had at least a basic level of intervention and rehabilitation.”

However, he noted, “the failure to deliver programs in a timely manner contributes to marginalized people being less prepared for parole, being denied parole more frequently, spending longer in custody, eventually getting out of custody with less knowledge and skills to avoid coming back to prison, and, ultimately, being more likely to reoffend, and that is a very unfortunate state of affairs, not just for inmates, but for society and the victims of future offences that could perhaps have been avoided if an inmate actually got a program before being released.”

In response to a request for comment from The Lawyer’s Daily, Kyle Lawlor, a spokesperson for CSC, said that “since the start of the pandemic,” the CSC has been “committed to reducing the risks of COVID-19 in all of its operations and keeping inmates, our employees, and the public safe.”

“We have also been communicating, both internally and externally, in an open and transparent manner about the situation in our institutions,” he added.

Lawlor noted that “at the onset of the pandemic, CSC worked with the Public Health Agency of Canada (PHAC), local public health agencies, our unions, and stakeholders to develop infection prevention and control measures to prevent and contain the spread of COVID-19.”

“CSC is legally mandated to provide programming to federal offenders, and during the pandemic, it was managed in such a way to limit the exposure of COVID-19 for the staff and the offenders who participate — while recognizing that federal correctional facilities are congregate living settings and therefore risk of transmission is elevated in these settings. At the onset of COVID-19, program delivery in group settings was paused while CSC and public health worked to understand how best to protect staff and offenders from the virus, while also ensuring that security and rehabilitation needs were met,” he explained, noting that “during the pandemic, correctional programs and other activities remained available to offenders in institutions across the country, and were delivered in accordance with the risk mitigation strategies established to reduce transmission.”

“Although these strategies restricted group-size and/or group delivery (depending on the rates of community transmission), offenders continued to have access to programs, be it in small groups, individually, or through remote program delivery. Given the evolution of the pandemic and the measures to mitigate transmission, CSC had established an Integrated Risk Management Framework (IRMF), which has allowed for a better delivery of correctional programs,” he added.

Lawlor also noted that “as per the Correctional and Conditional Release Act (CCRA), all offenders are eligible to be considered for release at some point during their sentences, either through temporary absences, conditional release (full and day parole), or statutory release.”

“An offender’s release eligibility is determined when an offender is sentenced, and can not change; offenders may apply for conditional releases once they are eligible for release. The PBC has exclusive authority to grant both day and full parole based on information and assessments prepared by CSC, including areas offenders have addressed through their correctional plans, correctional program participation being one such area,” he added, explaining that “a correctional plan is a guideline to an offender’s rehabilitation that is organic in nature and changes based on the offenders needs throughout their incarceration.”

“Statutory release is mandated through legislation and requires federally sentenced offenders to serve the final third of their sentence in the community, under supervision and under conditions of release similar to those imposed on offenders released on full parole. Offenders serving life or indeterminate sentences are not eligible for statutory release,” he added.

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