WHAT TO KNOW
WHEN YOUR ADULT CLIENT IS GOING TO PRISON:
Most Asked Questions
By Sandra G. Leonard
Barrister & Solicitor
4950 Yonge Street,
Suite #1800,
Toronto, Ontario
M2N 6K1
Phone: (416) 960-9604/(905) 726-4146
Fax: (905) 726-3112
Email:
WHAT TO KNOW
WHEN YOUR ADULT CLIENT IS GOING TO PRISON
TABLE OF CONTENTS Page
1. AUTHOR’S ACKNOWLEDGEMENTS & OMISSIONS 3
2. INTRODUCTION 4
3. COUNSEL’SQUESTIONS:
(1) What difference does a day make? 4
(2)What information do the authorities get? 7
(3)What information can I provide that will help? 7
(4)How soon can the client get out? 9
A. Statutory framework
1) Federal 9
2) Provincial 15
B. The realities 18
(5) What is the test for release? 19
(6) What is the procedure? 20
1) Federal
2) In Ontario 23
(7) What are the standard conditions for release? 24
(8)Why is my past client back in jail? 26
(9) How do I appeal a Parole decision? 28
(10) Where do I find information about incarceral sentencing? 29
(11) Does Legal Aid pay for Prison Law issues? 38
Notes40
ACKNOWLEDGEMENT & APOLOGIES:
My sincerest thanks and gratitude for the time, effort and patience of Professor Charlene Mandell of Queen’s Law School- Correctional Law Project, who kindly undertook the initial review and revisions of the substantive contentsof this article’s first incarnation as a manual for prison duty counsel in 2000. As access to the manual in its initial form has not been fully provided by Legal Aid, I have taken this opportunity to revisemuch of its contents in the hope that defence counsel and their clients may receive some benefit from it.
All errors or omissions, and the opinions expressed are those of the writer. There are admittedly substantial omissions-I have excluded youth imprisonment issues and the present realities under the YCJA. As well,there are extremely major issues in both federal and provincial correctional” systems faced by those with mental health problems, by women and by aboriginal peoples. Many of these issues have been fully described and discussed in the annual reports of Elizabeth Fry, the Correctional Investigator, John Howard, the Salvation Army, in CSC’s past reports, and by Aboriginal groups and speakers, and lastly, in the most recent Correctional Review. I do not begin to cover these additional issues in this paper, and this sin of omission is in the belief that they are best covered most fully in these earlier reports.
As well there are a variety of other issues regarding the quality of sentence served and related questions that may arise from your client’s sentence, including involuntary transfers, placement in Segregation, Disciplinary court that have been saved for another time or venue.
This article has been written during a time of potentially great change to the existing Correctional system and its process. Many of the recommendations of the Correctional Service of Canada Review Panel, October 2007, if implemented, will effectively change the operation of many areas of corrections, both behind and outside the wall. Be aware before your client is sentenced.
2. INTRODUCTION
What to do when you client is about to go to prison? What do you need to know before you appear before the sentencing Judge, besides the range of appropriate sentence? Are there steps you can take to assist your client in being potentially placed closer to home, receiving treatment or programs, and having a good chance at conditional release prior to the end of sentence?
This article attempts to help answer some of these questions. In general, it is assumed that as able criminal counsel, you know the sentencing law, and the legally appropriate submissions on sentence. But, if you want to advise the Judge about your client’s likely experience, get recommendations for placement, treatment, or statements about potential risk on record, the realities of “Corrections” often has little to do with the law, or what you see in legal texts. This article hopes to provide some of the practical answers.
3. COUNSEL’SQUESTIONS
(1) What difference does a day make?
The CriminalCodeof Canada (1) stipulates the placement of the offender in a penitentiary or provincial facility (s.743.1).The general rule is that where the sentence being served or its remainder is less than two years the person will be incarcerated in a facility run by the province of Ontario and where the total sentence is two years or more incarceration will be in the federally-run penitentiaries (s. 743.1). There is an exception for long term offenders, in that if they are sentenced for a further offence whilst on their long term supervision order, they will be sent to the penitentiary. (s. 743.1(3.1))
More than any other question, I am asked, “What difference does the day make?” I suspect the frequency of this question results from the fact that the answer differs with each client. This is both due to the changing variables within the prison systems and the different priorities or concerns of the individual client.Before you make the submission for federal or provincial time, please consider the following issues:
Offence categorization:
Firstly, for what offences is the client receiving the sentence? If the offences are NOT on Schedule 1of the Correctional and Conditional Release Act (hereafter CCRA) (2)not in its section 125, AND the client is a first time FEDERAL offender, he/ she is potentially looking at an automatic release at a fixed period of time:1/6 th or six months before day parole; one-third before full parole. As anyone knows dealing with the client (who so often wants you to ensure a joint submission at whatever cost) the certainty factor or perception of it, can be extremely appealing. Please note however that this automatic release or get out of jail not-so-free card is currently recommended for removal.
Past record:
Other factors come into play in determining accelerated parole release (hereafter APR) Doesyour client have a record for past offences involving violence, or any schedule I offences? Does their past include dismissed or withdrawn charges for such offences? Is the client someone affiliated with a gang, with organized crime? These factors potentially affect the federal offenders’ ability to receive directed release on “accelerated parole” and at the very least, usually trigger a hearing before the National Parole Board.
Earliest release date:
What is the earliest possible release date in the provincial system? As a day parole equivalent has not been a provincial option since 1995, and provincial full parole is at one third, the federal prisoner would expect to be released earlier than the provincial inmate, who is required to satisfy the OPERB that he/she deserved parole. Now however, provincial temporary absences are no longer only available after one-sixth, and the “compelling grounds” test which does not include permission for employment, appears to have been replaced with something less stringent. Again, does your client want to take the chance before the OPERB?
Prison setting:
What will the prison setting be like? Federally, this depends on the level of security. Someone expecting to serve their time in Millhaven or Kingston Pen will generally be less worried about the conditions at any of the provincial super jails, than someone who can expect the relative freedoms of Beaver Creek, Pittsburgh or Frontenac minimum security institutions.
Classification time:
How long will classification take? Federally, the wait can be assumed at three-four months. This is the time limit established for preparation of the Criminal Profile and Correctional Plan reports by the same person who is preparing the classification.(3) Although thesetime limits are part of the federal guidelines, both earlier and longer waits occur. For most federally sentenced men in Ontario, this means in 23 hour lock up at Millhaven’s Assessment Unitunless they are found to be employable. (Others in the north-western tip of the province were being sent to StonyMountain in Manitoba instead.) Provincially, classification can generally occur in one or two weeks, unless one also considers the secondary assessment period in the assessment units at the Ontario Correctional Institute in Brampton, St. Lawrence Valley Correctional and Treatment Centre in Brockville, or the or the Algoma Treatment and Remand Centre in Sault Ste. Marie, to see if the individuals are a proper fit for the institutions and treatment programs offered.
Distance from home:
Clients have chosen to stay in comparatively miserable circumstances for the sake of being close to their families. Consider where your client’s family resides and what kind of visits will be available- through plastic barriers on the phone, or sitting at a picnic table outside with one’s children playing with a variety of available toys or watching TV, while your client can eat whatever is brought in by their family at certain minimum institutions?
Individual fears:
Can your client cope with the pen, with being a small, or a young fish in a bigger, older pond? Frankly, these are questions of the individual’s personal vulnerability or street toughness, (and ability to withstand the noise quotient of provincial lock-up.) It is also dangerous to assume that the only seriously aggressive or potentially violent prisoners are in the penitentiary. As much damage canbe done as a result of group gang mentality in the bull pen at the Don Jail and at Maplehurst, and many, many federal clients have told me nothing was as bad as their time in remand, awaiting the transfer to Millhaven. In addition, are there mental health concerns? The most recent CSC review advises that 26 percent of women in their custody and 12 percent of the men have serious mental health concerns. (4) Those that are mentally ill or challenged may be unable to leave their cell and participate in programs, generating negative reports. Also, is your client functionally illiterate? Is English a second or further language? While Adult Basic Education may be a stated priority, will the emphasis on paperwork in the federal system prevent you client from accessing that which will be necessary to complete for release?
Program availability:
This entire question becomes a double-edged sword, because increasingly clients asking to go to the penitentiary for treatmentare not getting the programming expected. As it has been judicially recommended and has been seen as necessary by the institutional assessors, the client cannot now get support for release until the institutional program has been completed- at a date past his/her statutory release. Sufficient programs and skilled facilitators are lacking. Web site information can appear most encouraging, while remaining a kaleidoscope of possibilities in a largely grey world.
For Women:
As always, the options and range are narrower, so the considerations of placement are much more limited. In Ontario, federal time is at Grand Valley Institution, the institution in Kitchener which replaced the Prison for Women; provincial sentences are served at the local remand centers, at Vanier Correctional Centre, now located in Milton, which boasts 124 beds in an old part of the retro-fitted Maplehurst. There are also a very limited number of beds in the super jails of Central North in Penetang and Central North in Lindsay.
For Aboriginals:
Federally, the legislation calls for recognition of aboriginal differences. Consideration is supposed to be given to these differences for classification purposes and for parole planning with an emphasis on encouragement for alternative options through the input and support of the Native Elders and communities. In contrast, there is no obvious statutory provincial recognition of these differences, although the Provincial Ministry policy directs Probation and Parole to consider these needs, and may have Native Liaison officers at their institutions to facilitate programming and address particular needs. Review of many recent CSC reports however suggests that stated acknowledgements consistent with the Gladue (5) decision are seldom of much benefit to the federal aboriginal prisoner. The Correctional Investigator has almost routinely called upon the Correctional Service to recognize the disproportionate incarceration of aboriginals and lesser likelihood of release on parole. (6)
Medical concern or disabilities:
Both CSC and MCPS make a point of telling courts how well they accommodate those who are suffering from medical problems. I beg to differ. Although, I agree that both Ministries have a number of significant challenges to confront, particularly given the numbers of the prison population with medical problems, there are very real concerns about how well these needs are met. Health care and related concerns were the foremost categories of complaint when the provincial Ombudsman’s office measured these categories. (7) Medication granted to those in the community to alleviate their illnesses may not be similarly prescribed orpermitted institutionally at great cost to the individual. For those with physical disabilities, it may be difficult or impossible to participate in the expected routine of prison life or impossible to participate in various programming. For example, those who are aged may be unable to cope with the time limits for dress and feeding. Those who are visually impaired or deaf cannot participate in a variety of programs. An analysis of death among those in involuntary confinement suggested that the rates of death by both violent and natural causes in custody far exceeded the number of deaths in the general population, with an excess number of deaths from cardiovascular disease found in disproportionate numbers of younger people. (8)
(2)What information do the authorities get?
If the individual is sentenced to a federal institution, the sentencing Judge is required to forward materials to the Correctional Services of Canada pursuant to section 743.2 of the Criminal Code which states:
"A court that sentences or commits a person to the penitentiary shall forward to the Correctional Service of Canada its reasons and recommendation relating to sentence or committal, any relevant reports that were submitted to the court, and any other information relevant to the administering of the sentence or committal."
This will normally include the Reasons for Sentence and any Exhibits on Sentencing. As well, the Court looks to the police to forward information to Corrections. For federal offenders the Info Retrieval Service is now responsible for forwarding court and police documents to Corrections. For men, these documents are forwarded to the Info Retrieval office at Millhaven and are to be scanned into the OMS computer system (the scanning being a relatively new innovation). For women, the documents are collected by the Women’s Sentencing Unit.
The materials that get to federal Corrections may be the very documents you as defence counsel spent all of your time in court trying to disprove, including the synopsis, various will-says, wiretaps conversations or the police summaries thereof, and victim impact that was neither deemed accurate or credible.
For designated dangerous and long term offenders, disclosure to the Correctional Service of Canada is mandated by section 760 of the Criminal Code, which requires the court to order a copy of all reports and testimony given by psychiatrists, psychologists, criminologists and other experts and all observations of the court with respect to the finding, together with a transcript of the trial be forwarded [to CSC].
This requirement for forwarding court documents especially the reasons for sentence is not the case however for provincial sentences, and information may arrive (or not) on a much less structured and more sporadic basis. Nothing of assistance beside the warrant of committal and information may end up in Records, although the Ministry website (9)refers to the many documents used for classification purposes,” such as” the Reasons for Sentence.
Another issue arises from police visits or contact with Security personnel at federal institutions, such as upon intake at Millhaven, which can result in the provision of other information that did not see the light of day in court. Particularly insidious is the use of allegations regarding gang or organized crime affiliations, despite the fact that your client may not have even been charged with a criminal organization offence.
(3)What information can you provide that will help?
The simple answer is whatever will benefit your client and allow Classification to do their jobs with accurate information. One of my favourite sections of the CCRA is section 24(1) which requires Correctional Service of Canada to “...take all reasonable steps to ensure that any information it uses is as accurate, up to date and complete as possible.”
In the federal system, it is often helpful to order copy of the transcript of the Guilty Plea or the Reasons for Judgment after trial, especially if these occurred on a separate day from the sentencing, as the facts and any comments defence counsel made on the record therein about what was not an agreed allegation, may not be otherwise noted. Better still, ask the Judge if he or she will forward the first half of the plea to Corrections pursuant to section743.2, especially if the expected Reasons will be unduly brief and not in detail to the facts found. As well, address the issue of what the Judge may order to be sent to Corrections, so that if there are matters deemed highly inaccurate or incredible, these unproven allegations do not become part of the package of “facts”sent. A copy of an Agreed Statement of facts may compensate for an initial synopsis that bears little resemblance to the final plea in court. Comments from the Crown and Judge confirming other facts are also helpful, and may suggest that the lack of veracity of earlier allegations still on paper. Also, written confirmation of personal details such as school transcripts or college diplomas, union cards or employment can prevent the client from being required to go to school to re-learn Math 10 or take job training courses. Medically any prescriptions or ongoing concerns should also be forwarded, both to Healthcare and potentially to the Records department if it is information of which Classification or Parole should be aware.