2001 -- A Return to Expediency-Based Corrections

Early in 2001, the CSC introduced a new policy affecting security classification that resulted in the transfer of prisoners. This initiative illustrates how the politics of law and order can override principles entrenched in the law.

This policy, announced in February 2001, stated that prisoners sentenced to life in prison for murder must serve the first two years of their sentence in a maximum security prison. Furthermore, offenders in this category would have their security classification reviewed only every two years, rather than every year, the policy applied to all other offenders. The policy change was accomplished by a simple mathematical mechanism. The "Custody Rating Scale," a tool which assigns values to the three elements of offender security classification - public safety risk, escape risk, and institutional adjustment - was revised so that a life sentence automatically results in a high public safety rating for a two-year period. The trigger for this new policy appears to have been media accounts of the negative reaction of families of murder victims to the knowledge that some murderers, shortly after their conviction, were sent to medium security institutions. The Solicitor General announced the new policy without consultation with agencies such as the John Howard or Elizabeth Fry Societies, and indeed without the involvement of the Ministry's Secretariat, which normally advises on the implications of major new policy. The rationale given for the policy was as follows:

Since first and second degree murder are the most serious crimes that can be committed in Canada, and are subject to the most severe penalty in the Criminal Code, CSC's policies and procedures must more clearly reinforce this aspect of our criminal justice system. (Policy Bulletin 107, February 23, 2001, amending Standard Operating Practices 700 - 14 )

As we have seen, s. 28 of the CCRA requires that "the penitentiary in which [a prisoner] is confined is one that provides the least restrictive environment" having regard to a number of specified factors, including public and personal safety, security of the penitentiary, geographical accessibility, a compatible cultural and linguistic environment, and availability of appropriate programs. The CCR Regulations, in setting out the tripartite classification of maximum, medium and minimum security, require an assessment of the prisoner's probability of escape, the risk to the safety of the public in the event of escape, and the degree of supervision and control required within the penitentiary. Two features of this classification should be noted. First, it is intended to be an assessment of each individual prisoner. Second, the seriousness of the offence and the length of the sentence are not factors specified in the CCRA or the CCR Regulations ; although they are clearly relevant to making an individual assessment of escape and public safety risks, they are not determinative. Prior to the new policy, many convicted murderers admitted to the penitentiary under a life sentence were assessed as medium security. For instance, a person convicted of the murder of a family member, with no prior criminal convictions, would not be deemed a high risk for escape, a danger to public safety in the event of escape, or a prisoner requiring a high degree of supervision and control. One example would be Robert Latimer, convicted of the murder of his daughter in 1994. Under the new policy, however, such a prisoner is automatically deemed to be maximum security and will serve at least two years in a maximum security facility.

A study done by the CSC after the fact, under pressure from agencies such as the John Howard Society, found that 50 per cent of prisoners considered under the new policy to be maximum security would have been assessed as no more than medium security under previous security assessment criteria.

The John Howard and Elizabeth Fry Societies, along with the Canadian Bar Association, quickly marshalled principled criticisms of the new policy. First, the CCRA specifically required the CSC to place an offender in the least restrictive environment, and the CCRA and CCR Regulations set out the legislative criteria for an individualized assessment. The new policy overrode that legislative principle by seeking to determine, for a whole class of prisoners, a security classification based on the nature of their offence. Second, the CSC's rationale for doing this was to reinforce the denunciatory aspect of the sentence. Yet while denunciation of a crime was a legitimate, legislated objective of the sentencing process, it was not part of the statutory mandate of the CSC under the CCRA. Section 3 of that Act requires the Service to carry out the sentence imposed by courts in a safe and humane way and to assist in the rehabilitation and reintegration of offenders.

The criticisms also pointed to the particular consequences of the new policy for female, aboriginal, and young offenders. Because the new facilities built to replace the Prison for Women at Kingston were not deemed suitable as maximum security prisons, women prisoners designated as maximum security were housed in separate ranges in men's prisons, where there was very little freedom of movement and limited access to programs and meaningful employment. For northern Inuit prisoners, the result would be massive cultural dislocation, over and above the experience of their removal from Nunavut. Prior to the new policy, Inuit prisoners convicted of murder served their sentences at Fenbrook, a medium security institution in Ontario, where they had some access to culturally appropriate food and services. To require such prisoners to serve the first two years of a life sentence in maximum security -- in cultural and linguistic isolation -- was excessively harsh and punitive. For young offenders raised to adult court, and thus required to serve the first two years of their sentence in an adult maximum security prison, the correctional consequences of the new policy were even more damaging. The young offender would be in considerable danger of sexual predation and/or of developing a hard-core attitude towards incarceration. Either prospect was inconsistent with the statutory goals of humane confinement and reintegration.

Several months after the new policy was announced, I participated in an annual consultation meeting between the National Associations Active in Criminal Justice (NAACJ) and the CSC. The members of the NAACJ expressed their unanimous denunciation of the policy as a violation of the CCRA, the Mission Statement, and the CSC's public statements as an organization that practised progressive and principled corrections. A representative from the Psychological Association of Canada challenged the policy as inconsistent with the scientific and research basis for the security assessment process. What was the point of conducting research on risk and needs assessment, he asked, if individual assessments could be overriden by the simplistic classification of prisoners based on their offences? He also questioned how the CSC could maintain the position, reflected in its training materials, that offenders come to prison as punishment and not for punishment, when it was now saying that one group of prisoners should suffer the particular harsh punishment of maximum security for at least two years.

Graham Stewart, Executive Director of the John Howard Society and one of Canada's most respected voices in criminal justice reform, suggested that the implications of the new policy went far beyond the unjust treatment of prisoners captured by it. The complete disregard it showed for the express provisions of the CCRA and the CCR Regulations represented a fundamental breach of trust in the CSC's commitment to respect for the Rule of Law. In his view, the policy marked a regression to "expediency-based corrections," in which politics rather than the law determined the CSC's interpretation of its mandate.

Several staff and administrators at Kent had told me that the new policy would not only add to the problems of overcrowding but was blatantly inconsistent with a correctional philosophy which respected the least restrictive alternative principle and emphasized reintegration. The Wardens of maximum security facilities had not been consulted on the new policy, and warden of Kent was hard pressed to explain to his staff how it could be implemented in a manner consistent with the CCRA. At the consultation meeting in Ottawa, I suggested the clear message conveyed by the new policy was that, when the Solicitor General was subject to enough political pressure, correctional policy could be changed regardless of the law.

The Arbour Report referred to a pervasive attitude among CSC staff that "even if the law is known, there is a general perception that it can always be departed from for a valid reason, and that, in any event compliance with the prisoners' rights is not a priority" (Arbour at 47). The new policy requiring murderers to serve the first two years of their sentences in maximum security reflected this same attitude; s. 28 of the CCRA could be dispensed with in the interests of political expediency. If that attitude was good enough for the Solicitor General, why should CSC line staff believe that adherence to the law was an essential element of the correctional enterprise?

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