Why Community Corrections?

Charles Ferris
Legal Counsel, New Brunswick Human Rights Commission

I have been asked to respond to this question from the view point of the Human Rights Commission, a public agency charged with the administration of the Human Rights Act.

There is both a legal and philosophical imperative for such an approach. The first answer is that it is both a moral and legal imperative. Professor John Rawls, the preeminent legal philosopher of the last quarter of this century, defines justice as the basic moral principle of society. Moreover, to Rawls, it is a principle of his contractually-based society that social and economic inequalities are acceptable only to the extent that they are arranged to provide the greatest benefit of the least advantaged. Convicted offenders, as among the least socially, economically and educationally advantaged in our society, are deserving of special attention that includes an adequate allocation of resources to promote their welfare.

Moreover, the legislative purpose of the Human Rights Act dictates such an approach. The work of the NB Human Rights Commission is: to promote an understanding and acceptance of, and compliance with, the Act; and to develop and conduct educational programs designed to eliminate discriminatory practices related to the (twelve enumerated grounds of discrimination).

Viewing classic human rights in the context of community corrections, one notes that human rights are not something that can be understood, appreciated or advanced in isolation of community. Moreover, while there are significant human rights issues in the prison setting, the prison setting's peculiar balance of power, social and gender mix and its coercive - even violent - personality - can not be seen to be an effective means to advance the underlying principle of the Human Rights Code, namely, to "forward the principle that every person is free and equal in dignity and right..."

Community Corrections may obtain a greater respect for the rights and dignity of both victim and offender within the context of community. Unfortunately, prison is a divisive and isolating world. It is, strangely, a world directed in large measure by an elite of lawyers and judges who are sometimes sadly ignorant of the setting over which they have so much influence.

Thus to the extent that a community model can effect the proper balance between the protection of society and the rehabilitation of the individual convicted person, it must be considered as a serious option to incarceration. Unfortunately, there is also a prerequisite of a receptive society, mindful of the need for community rehabilitation, and unwilling to "throw away the key". That this later attitude exists is no more evident than in the lack of protection that society affords to persons who have been charged with a criminal offence, convicted or received a pardon following a conviction.

The lack of such protection in NB reflects a societal attitude that desires to perpetuate the separation of the offender from society after the sentence is completed. In so doing, it reinforces stereotypes that inhibit the growth of a healing sense of community.

This is a complex issue, like so many surrounding the criminal justice system. For example, a person who has served a sentence has already made amends. Moreover, a person is less likely to be a recidivist if s/he is employed or providing a useful service. On the other hand, an employer or service provider ought to have the right to assess a potential employee/service provider to ensure that s/he does not pose an unacceptable risk to the undertaking. A BC Human Rights tribunal has established the following guidelines to determine whether the charge was related to the employment: 1) Does the behaviour for which the conviction was made, if repeated, pose any threat to the employer's ability to carry on its business safely and efficiently? 2) What were the circumstances of the offence and the particulars; e.g., age of individual at time of commission, extenuating circumstances? 3) How much time has lapsed since the offence? Do the person's activities since the offence show tenancies to repeat the offence? Do the person's activities since the offence show tenancies to repeat the offence, or rehabilitation? 4) Is the offence one the person is likely to repeat? Certain offenses may obtain a particular high rate of recidivism.

In addressing society's attitude to community corrections, it is also clear that this response is valid only to the extent that community corrections is appropriate, and meaningful-it must include work that brings the offender into direct contact with the public against which s/he has offended and it must be work that has a transparent social value for the community and/or the individual offender. One must respond affirmatively to the question: Is there sufficient appropriate community work available to permit offenders to develop a sense of respect for and acceptance of others to develop a sense of respect for and acceptance of others that can really be termed "correctional"?

Community Corrections may be a means to extend the tolerance of individual differences leading to acceptance. One experience that has come to reflect failings of both the correctional system and Canada's respect for fundamental human rights is that of the First Nations of Canada. The disproportionate number of sentenced native inmates, markedly apparent in the Prairie Provinces, and a reality in NB as well, has led to a reexamination of the correctional process as it applies to this sector of our society. One response has been the convening of sentencing circles as an alternative to traditional judicial sentencing. Now widely used in Western Canada, the first NB sentencing circle was recently approved by a Provincial Court in Perth-Andover, and the sentencing circle itself is scheduled to convene on March 25, 1996 at the Maliseet Nation at Tobique.

The sentencing circle appears to be a model for community corrections, in that it meets the requirements of a valid sentencing by determining a sentence that will fit the offence and the offender. Moreover, the sentencing circle provides an opportunity for the Court to be more fully informed about the offender, the community and the effect of his crime on the community, as well as the victim. Therefore, the sentence is that of the community as well as the Court.

The determination whether a sentencing circle is appropriate in a given case is a factor of four considerations, namely; 1) the nature and circumstances of the offence (not so serious as to pose an extraordinary risk, providing a restorative or rehabilitative approach to sentencing); 2) the nature and circumstances of the offender (acceptance of responsibility and accountability to community); 3) the nature and circumstances of the community (distinct, resourced, broadly supportive); and 4) the nature and circumstances of the victim (agreement, willingness to participate).

By the sentencing circle, there is greater opportunity to ensure that the penalty/rehabilitation more fully addresses the causes of the offence, and in so doing, builds a sense of community with the offender that reduces the probability of recidivism. How have these circles worked?

Certain Western initiatives - notably the Hollow Water reserve Protocol in Manitoba - have produced extraordinary preliminary results including a dramatic increase in the number of sexual offenses targeted by the initiative. Closer to home, one notes at least one positive experience at the Afton Reserve, Antigonish, NS. There, the reserve's Elders set the sentence, and the Crown agreed. The parties then went back to the judge, and advised him of the sentence (community work) and he agreed to it. One aspect was that the victim and the offender had a face to face encounter. The victim was not just a witness. Moreover, the work was for the victim, not just for the less tangible "greater good of the community".

There, the community had found that, because the traditional process was so lengthy, the community had "moved on" by the time the sentencing finally took place. In this instance, the community remained connected to the event because the process was reasonably expedient (it must be borne in mind that sentencing circles can be time consuming and this may delay results). It was noted that, since this 1994 sentencing circle, the repeat offender has not re-offended.

On the basis of the foregoing, one may conclude that a mechanism, such as the sentencing circle, may reinforce the following dicta, namely that: Human rights do not exist in a vacuum; integration by segregation doesn't work and you can't teach people to be productive members of society by separating them from society; it is only through inter-relationship with the non-offending sector of society by integrating persons into the community, you promote tolerance leading to acceptance, the cornerstone of human rights.

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© 2007 Atlantic Human Rights Centre, St. Thomas University