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| Michael Crowley |
When someone has a parole hearing, they are permitted to have an individual of their choosing act as an assistant for them under s. 140(4) of the Corrections and Conditional Release Act (CCRA). They are limited to having only one assistant, though they are allowed to have other persons who are supportive attend hearings as observers as long as they comply with s. 140(8) of the CCRA.
In my experience of more than 20 years as a member of the Parole Board of Canada, the vast majority of assistants have been lawyers, but oftentimes a friend or family member of the inmate acted as an assistant.
According to the language of the CCRA, the role of an assistant is to be present at the hearing at all times when the offender is present; to advise the offender throughout the hearing; and to address the members of the board conducting the hearing at times they adjudge to be conducive to the effective conduct of the hearing.
In practice, this means that an assistant might make a submission before the hearing starts that they want the board to address. This could be the assistant’s belief that the board does not have jurisdiction to hear the case, as an example. This could occur if the assistant believes that the Correctional Service Canada (CSC) or the board have not met certain deadlines, or because they have reasonable grounds to believe that a member is biased, based on previous interactions. These would be rare or unusual occurrences. In general, an assistant has the opportunity to address the board at the conclusion of the hearing, when the members have completed their questions, usually for a brief period of no more than 10 minutes.
This 10-minute “rule” is not found in legislation but is more a practical matter that attempts to ensure that hearings are not being prolonged by legal arguments.
The point to keep in mind is that a parole hearing is not a judicial or even quasi-judicial event. It is an administrative tribunal, and it is only the board members who do the questioning of the subject, in an inquisitorial manner. Assistants, even lawyers, are not acting as such, but are assisting the process. Therefore, while it may be tempting to object to the form of a question or to ask questions of the parole officer who has presented the recommendation from CSC, it is not permitted.
I recall a hearing in which I asked a question of an inmate, and his assistant (a lawyer) broke in and said, “That’s a leading question,” to which I replied, “I know — and I’m allowed to do so.”
How can an assistant actually assist the board or the hearing process if they can’t raise objections or confront parole officers? Though it rarely happens, from my experience, there were times when an inmate clearly did not understand a question or had difficulty articulating a response. In those instances, the assistant would be allowed (after first clearing it with the members) to rephrase the question in words their client would likely understand, or to clarify a response, as long as they were not answering for the inmate.
Most of the time, assistants have no difficulty complying with the 10-minute rule. However, as it is only an informal expectation, sometimes assistants would continue beyond 10 minutes, but if they strayed too far, the lead board member would make every effort to encourage the assistant to complete their remarks. We would usually only intervene directly if the assistant started repeating themselves and were not actually assisting the board.
The worst example of bending the time rule that I experienced led to a hearing that took approximately seven hours to complete. It was a detention hearing, which meant that CSC had recommended that the board not permit the offender to be released after serving two-thirds of his sentence, as is the norm, but order that he remain in custody and serve his entire sentence in custody. The inmate’s assistant was his wife, who was also a lawyer.
Prior to the hearing, she had sent a banker’s box of material that she asked the board to review, and in so doing, indicated she had a number of objections she wanted to make before the hearing started. Her main point was that she believed the referral for detention wasn’t valid as it did not meet the legislated requirement, and that the board therefore did not have jurisdiction.
In my mind it should have been a brief submission and quick response as we had reviewed the legislation and submission, and determined that it met the requirement.
However, for a number of reasons the board member who had the lead allowed the assistant to speak for more than an hour, something that was unheard of and was not helpful, as we already had her submissions in writing. When she completed her argument, we adjourned, decided that we did have jurisdiction and provided an oral response.
A detention hearing was usually longer than most types of hearings because of the potential outcome — keeping someone in custody until the day that their sentence ended. But still, such a hearing would generally not take more than an hour and a half.
In this instance, the hearing dragged on with the inmate doing most of the talking and not being challenged. At the end of the hearing, rather than the normal 10-minute rule being followed, the assistant spoke for almost two hours!
Luckily this was an extreme exception to the board’s normal procedures and did not assist in our decision-making. We decided to detain the inmate; he appealed both to the board’s appeal division and then to the Federal Court and lost in each instance.
While family members or friends often act as assistants, their role is usually limited to describing to the board the positive changes they have seen and to provide insight into the level of support they would provide if we granted a conditional release.
In my experience, lawyers acting as assistants were most helpful when they reminded the members of the wording of the legislation that applies to decision-making, and acted to focus the board on understanding the level of risk for reoffending that the inmate possesses, the progress they have made during their period of incarceration, and the quality of their proposed release plan. Reminding the members that they have to make a decision that is the least restrictive, consistent with public safety, is very useful.
Decisions regarding individuals who are serving life or indeterminate sentences always present the board with difficult choices to make, in particular as the members have to truly understand the risk presented by the inmate but also needing to clearly understand how they will cope in the community, an environment they have not been in for many years and even decades.
In many instances, people serving life sentences were able to benefit from a program called Life Line, which was funded by CSC, and focused exclusively on people serving life or very lengthy sentences. Their workers were men and women who had served similar sentences and had successfully transitioned to the community on parole.
These individuals often acted as assistants at hearings and could address the board’s concerns, based on their knowledge of the inmate, as well as the strength of their release plan. I learned to listen carefully to their submissions and noted a few occasions when they would terminate their support during a hearing because they realized that the offender they were representing was not being truthful.
Sadly, this program’s funding was not continued by the government, but a limited number of staff remain, based on funding from non-profit organizations.
I think that the board is best served by assistants who actually know the individual they are representing and are able to focus the board’s attention on relevant factors. In some cases, when CSC is not supporting a release, an astute assistant is able to emphasize the offender’s positive factors in such a way that they will ask for an adjournment so that a new or better release plan can be explored. In the end this may serve the public well, as it could provide a pathway for an offender to return to the community as a law-abiding citizen, under supervision, while they experience a life that was different from what they knew previously.
Michael Crowley has a BA from Syracuse University. He spent more than 40 years in various positions within the criminal justice system in Canada. Before retiring, Crowley was a member of the Parole Board of Canada for 21 years. Contact him at CrowleyMichael167@gmail.com.
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