Simon Says

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‘Crisis’ in federal correctional institutions due to parole programing backlog

Simon Borys was recently interviewed for an article in The Lawyers Daily about the crisis in federal correctional institutions due to the programming backlog

Simon is quoted in the article as saying:

“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.”

You can read the full article on The Lawyers Daily here: