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There are many problems with the way that Canada’s parole system functions.  One problem is that being paroled requires a prisoner to admit guilt for the crimes of which he or she has been convicted.  According to a thorough analysis by lawyer Rachel Barsky and researcher Adam Blanchard, a prisoner who maintains innocence is likely to face a series of negative consequences including a much lower chance of getting parole.

Barsky first ran into this problem while working on wrongful convictions through the UBC Innocence Project.  One of her cases, R. v. Tallio, involves a prisoner who had been denied parole for 25 years because he continues to claim that he had not committed the crime.  Meanwhile, many others convicted of similar crimes had been paroled years earlier.

The report by the Criminal Defence Advocacy Society is centred on six cases of prisoners who participated voluntarily and willingly.  The researchers were able to gain access to the entire Correctional Service (CSC) files for these prisoners, which went back many years.  In addition to the six cases explored in depth, the report also cites examples of people who were later exonerated yet who were not paroled due to claiming innocence.  So not only were these people wrongfully convicted in the first place, they spent many extra years locked up because they continued to insist that they were innocent.  Among the examples are Romeo Phillion, Ivan Henry and David Milgaard.

Refusal to admit guilt creates problems

The central problem is that once a person has been convicted of a crime, the correctional and parole systems accept that verdict as true, so that denial of guilt is seen as being a refusal to deal with one’s problems.  But in fact people in the system do not neatly fit that categorization.  Some people may be pretending or refusing to accept what they know they have done.  That suggests serious problems around rehabilitation.  In other cases, people with mental health problems may in fact not recognize what they did or its significance; that is a very different matter from a calculated lie.

But we also know that the justice system does malfunction sometimes, and that some people convicted of crimes, and even people who plead guilty are, in fact, innocent.  Having to admit to a crime one did not commit would be an extraordinarily difficult thing to do and could make a person’s future behaviour more problematic.

The report has a long discussion of different forms of denial of guilt.  Professionals in the prison system who conduct psychological and other assessments do not agree on how to understand or respond to innocence claims.  Some see these claims as being huge barriers to people addressing their issues while others give this factor little significance since it does not seem to affect later behaviour.  So as prisoner’s situation may depend enormously on the particular staff person who handles their case.

The importance of denial in criminal justice decision-making and the relationship between denial and offending “remains a key area of concern for both practitioners and researchers, as questions continue regarding the most effective approach to assessment, treatment, and release of such individuals.” A person claiming innocence for a crime “complicates the ability to reliably and accurately assess and manage this individual’s risk… and as a result to providing the appropriate types and  intensity of treatment with this offender”.

Parole is not the only problem

Not only may ongoing claims of innocence lead to no parole, they can also affect a prisoner’s access to other services and opportunities in the prison.  A prisoner who continues to claim innocence may (the researchers point out that the actual consequences varied from case to case) be:

  • Denied participation in therapeutic programs in the prison (and often participation in such programs is a requirement for parole)
  • Denied temporary absences from the prison to participate in educational opportunities, or work, or for important family events
  • Denied transfers to lower security prisons where living conditions are not as challenging.

For the central case in the report, which is currently in the B.C. Court of Appeal, being argued by Barsky and her co-counsel as an instance of wrongful conviction, there are comments year after year (1992, 1993, 1996, 1999, 2000, 2005) from CSC and Parole Board staff saying that the only thing keeping the prisoner from being paroled was his refusal to admit guilt.  At the same time, the prisoner was not allowed to take the required programs because of this insistence until 2010, when the Correctional Service agreed that the prisoner could complete a therapeutic program without having to admit guilt.

However that change did not solve the problem, since many activities within the therapeutic program focus on issues such as the factors that led to being involved in crime, or feelings about having committed a crime, or steps to avoid committing further crimes.  Of course it’s impossible to do these things if one is actually innocent, but failure to do so in a manner convincing to staff will lead to negative recommendations on parole or transfer to lower security.

Thus, according to CSC, inmates maintaining innocence are no longer barred from entering programs while they maintain innocence, but if they continue to maintain innocence during the program, there is a very strong likelihood they will still be unsuccessful.”

Admitting guilt not related to public safety

The key issue here is why this emphasis on admission of guilt exists in the first place.  Officially, parole should only be denied where there is a danger to community safety – although in fact, as we know from some recent cases, parole may be denied in cases that have a high public profile even where there is little or no risk to public safety.  The report has an extensive discussion of the evidence which concludes there are no grounds to believe that someone who continues to claim innocence is more likely to commit another crime.  (And the prisoners in this report had all been found guilty of very serious crimes such as murder, while the reoffending rate for those released on parole for these crimes is extremely low in any case.)

The report goes far beyond the issue of innocence and parole.  It also has much to say about different forms of denial of guilt and their implications, about how prisoners’ risk level, which can affect many aspects of a prisoner’s situation, is assessed, and about various forms of treatment in relation to denial of guilt.  The report concludes with recommendations for changes in law, policy and practice that would result in a fairer situation for those who maintain their innocence.