Criminal defence and parole lawyer Jeff Rybak says ongoing delays in rehabilitative and reintegrative programming caused by the COVID-19 pandemic has created a “traffic jam” for inmates and complications for Parole Board of Canada (PBC) decision makers.
“Programming is badly delayed right now,” said Rybak. “Federally, there have been a lot of delays on programs and a lot of pressures on institutional resources due to [the pandemic]. You create a traffic jam, and a bunch of people aren’t getting into their programs on time, and it just creates a cascade backup that hasn’t cleared for quite some time.”
Jeff Rybak, criminal defence lawyer
“Let’s say [an inmate] isn’t getting the programming he’s been screened for. So, the guy gets into jail, and the people who do their jobs [in programming] say, we think in order for this guy to get appropriate help in the system, he’s supposed to do X and Y. But it’s impossible for him to do X and Y by the time he hopes to have a parole hearing, so he says, I’m just going to show up in front of the parole board anyway. I haven’t done X and Y yet, but I’m going to take my shot. And then the board has to decide [if it’s] safe to release him. Is it an appropriate thing to do under the circumstances? So, a lack of programming isn’t just disadvantaging guys in custody, it's also putting the parole board in a bind because they keep seeing these cases.”
Rybak said that while parole board decision makers are doing the best they can in the current circumstances, someone in a position of authority must “decide what happens next, because that person who did a bad thing is still here.”
“I don’t think the system works badly. … It is a difficult system that I operate in … and there are board members who do a very difficult job trying to reach reasonable decisions. I don’t think the system as a whole is broken, it’s just tough.”
One federal government document from late 2022 describes the backlog.
In 2020-2021, 36 per cent of federal offenders with an “identified need” completed a Nationally Recognized Correctional Program (NRCP) before their eligibility date for full parole — a notable decrease from 2019-2020, when 50 per cent completed a NRCP before parole eligibility.
“Delays in accessing programs may result in a larger number of federally-sentenced individuals who have not completed their assigned correctional programs before being eligible for parole,” states the document, which stresses the PBC was working with the Correctional Service of Canada (CSC) to “address the gap in correctional program delivery.”
NRCPs, it states, “contribute to public safety through assessment activities and program interventions for individuals under federal correctional supervision that are designed to assist their rehabilitation and facilitate their successful reintegration into the community.”
These programs are designed to target specific risks and need factors that are related to criminal behaviours, which may include friends and associates, history of criminal behaviour, harmful thoughts, history of family violence, employment history, and substance abuse.”
It also provided some numbers around inmate education programs.
It found that prior to the pandemic, 12 to 15 inmates would attend classes together. But after COVID-19 restrictions were put in place, classes across Canada were operating at 30 to 50 per cent capacity.
“In 2020-2021, 42% of offenders with an identified educational need upgraded their education prior to their full parole eligibility date. This represents an important decrease from the previous year when 58% of those with an identified need upgraded their education.”
Rybak said that while there are instances where an inmate is granted parole without having completed their in-custody programming, there are cases where inmates will delay their parole hearings and “and in some cases completely missing any real chance at parole, because they haven’t completed programming and feel they need to wait for it.”
Rybak stressed that an inmate’s completion of rehabilitative programming is just one of many factors that go into the PBC’s decision whether to grant them parole.
“While the parole board itself is the decision-making authority where these things ultimately get decided, they receive reports and recommendations from CSC and from parole officers in the jail,” he said. “These parole officers in turn are supervising the inmates and their progress through the system, including any programming they’ve completed. So, when a parole officer says ‘I’m not supporting you for parole until you’ve done X and Y’ and the inmate is unable to do X and Y in a timely fashion, many inmates simply accept that as determinative and don’t even try to get parole.”
Last summer, Kingston, Ont., lawyer Simon Borys spoke to Law360 Canada about the impact the delays were having on his clients at the time.
“This has been a problem for almost all of my clients, at every federal institution, since the pandemic started,” he said. “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.”
Comment from CSC was not able to be provided by press time. A request for comment from the PBC was not answered.
— With files by Amanda Jerome.
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