Six Degrees from Liberation: Legal Needs of Women in Criminal and Other Matters

Chapter 2: Federally Sentenced Women (cont'd)

Chapter 2: Federally Sentenced Women (cont'd)

2.5 Parole Hearings, Conditional Release, and Implications for Legal Aid and Other Legal Needs

Prisoners who make an application before the National Parole Board face a hearing that is inquisitorial in nature. Some offenders have the support of an assistant, who may be a friend or family member or, in relatively few cases, a lawyer.[181] At the hearing Board members ask questions relating to the prisoner’s offence, understanding of factors contributing to the offending behaviour, institutional history and progress toward rehabilitation and re-integration.

Hearings are becoming increasingly complex, in part because of the increased opportunities for victims to participate in the hearings (and additional recent plans would enhance their participation). Parole Board members are required to take into consideration the submissions of victims, the veracity of those statements and the weight to be given to them, as well as the due process to be accorded to an applicant in challenging those statements.

Data in the United States shows a direct inverse relationship between the parole grant rate and the participation of victims in the parole process: the greater the participation of victims, the less likely the applicant will be granted parole.[182] Legal representation is more necessary than ever, if only to assist applicants to counterbalance the enormous visceral impact of having victims participate in the parole hearing.

The majority of prisoners are released prior to the expiration of their custodial sentence, subject to conditional release. The process of re-integration does not, on the face of it, raise legal issues for which legal representation is required. It does, however, require tremendous resources in the community for organizations that provide services for people who have been in conflict with the law. This kind of an investment should be seen as a preventive measure to help reduce the occurrence of re-offending.

2.6 Summary

This chapter examined the legal aid and other legal needs of women during the time that they are serving a sentence of two years or more in a federal penitentiary, as prisoners, mothers and parole applicants.

While the population of federally sentenced women is small, it has increased by 200 percent since 1990, with Aboriginal women, visible minority women and women with cognitive and mental disabilities – who are frequently criminalized because of their disability-induced behaviour – comprising a significant portion of the population. The relationship between women’s social and economic marginalization and the correctional system is clear, and particularly pronounced for Aboriginal women.

Pursuant to the Corrections and Conditional Release Act, the Correctional Service of Canada has the authority to take a range of decisions – including involuntary transfers, disciplinary sanctions, administrative segregation and security classification – that can generate serious consequences for prisoners and, as a result, various legal needs. The Supreme Court of Canada has held that a prisoner still has an entitlement – albeit a pared-down one – to liberty interests within the correctional setting.

Government inquiries have repeatedly described an indifference to the Rule of Law on the part of correctional authorities, and a lack of awareness and training on prisoners’ entitlements to legal services among institutional staff. In the absence of fundamental respect for due process, prisoner complaints may not be viewed as legitimate challenges, but as insubordination to be responded to with punitive measures. The use of non-litigious approaches such as mediation is also problematic because of the extreme power imbalance between prisoners and staff.

Given the above, both male and female prisoners need legal representation to ensure that deprivations of liberty are not expanded to an illegal degree. They also require legal advice about their rights to due process in disciplinary and other proceedings. Most basically, prisoners – and staff – require legal information. Such information would be most easily accepted if it were authored and distributed by prisoner, Aboriginal and mental health advocacy groups.

The circumstances of women’s offending, their program needs and the risk they pose to the public are different from men’s. Nonetheless, the instruments used to determine their security designation are the same as those developed and used for their male counterparts. The instruments contain a range of normative standards that put women, particularly culturally, racially, and cognitively marginalized women, at a disadvantage. The result has been a significant "over-classification" of federally sentenced women, based on classification criteria that de-contextualize their offending while ignoring systemic barriers. This is particularly true for Aboriginal women, who are disproportionately classified as maximum security.

Legal advice is necessary in order to assist women to choose the appropriate avenue to challenge their security designation, as well as any possible individual and systemic discrimination present in the classification tools. Foremost, they need legal information to understand the implications of their security classification, and the legal avenues that are available to them to contest it.

A 1991 survey indicated that two thirds of incarcerated women were mothers, and that 70 percent of these were single parents all or most of the time. While the Supreme Court of Canada has recognized entitlement to legal aid for child apprehension, the ability for incarcerated women to actually avail themselves of this constitutional protection is fragile at best. Their ability to do so is contingent on child protection workers informing them of their legal rights, on being served with notice of a hearing, on transportation to the hearing being made available to them, and on their ability to contact legal aid. Moreover, child protection workers and the judiciary focus on the individual caregiver (mother) – without connecting the challenges of supporting and nurturing children to the problems of poverty, violence, the legacy of cultural marginalization and racism, and the way in which these compounding experiences of oppression affect women’s lives.

Legal representation is therefore required from the point at which the children are removed or the mother is arrested, continuously through each stage of the child apprehension case. Legal representation at child protection hearings is critical to ensure that mothers have a full and fair opportunity to be heard in court, and/or to enforce their constitutional and legal entitlements. Women also require legal advice prior to signing placement forms so that they can understand the consequences for themselves and their children. In addition, they need legal information on the implications of their incarceration for their dependent children.

Parole hearings are becoming increasingly complex, in part because of increased opportunities for victims to participate in hearings. Parole Board members are required to take into consideration the submissions of victims, the veracity of those statements and the weight to be given them, as well as the due process to be accorded to an applicant in challenging those statements. Given these complexities, legal representation is required to assist parole applicants to counterbalance the enormous visceral impact of having victims participate in the hearing.


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