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r 1 DISCRETIONARY POWER: JUST AND HUMANE WHEN PUBLICLY EXERCISED
1 DISCRETIONARY POWER: : JUST AND HUMANE WHEN PUBLICLY EXERCISED The Canadian correctional system LIBRARY SOL1CiTOR GENEFAL CANADA by DEC 9 19YZ André Normandeau \ Criminologist I 7,1' '7 -,".7- T - - Ecole de criminologie Université de Montréal (Notes for a speech by André Normandeau, criminologist, Université de Montréal, at the Conference on discretion in the correctional system organized by the Solicitor general of Canada (NPB) and the Société de criminologie du Québec, May 21, 1981) 4 Copyright of this document does not belong to the Crown. Proper authorization must be obtained from the author for any intended use Les droits d'auteur du présent document n'appartiennent pas à l'état. Toute utilisation du contenu du présent I document dot être approuvée préalablement par l'auteur.
DISCRETIONARY POWER: JUST AND HUMANE WHEN PUBLICLY E )Œ RCISED The Canadian correctional system 1. There will always be a very delicate balance between the principle of legality and equity and the principle of individualization of punishment and of the discretionary powers it implies. Which is a very good thing. For only in this way can we keep the law free of Procrustean arbitrariness and keep at bay _ the equally Procrustean arbitrariness of an overly personalized individualization of punishment. It will be remembered, by criminologists particularly, that Procrustes was a highwayman and brigand in Greek mythology who, after robbing his victims, made them lie down on a bed of iron; if their legs were too long for the bed, he cut them down to si if they were too short, he stretched them. Theseus eventually put Procrustes to the same torture. 2. As noted in the NPB** working document, it is difficult to imagine a correctional system in which officials have absolutely no decisional latitude. This discretionary power **. Discussion guide for the pre-conference seminar, Conference on Discretion in the Correctional System, November 17, 18, 19, 1981, Gbvernment of Canada, National Parole Board (NPB) ç. ocï ( c G V; \ Qedt.0 \
4 2 is absolutely necessary in a system which promotes not only a coherent uniform policy in decision-making but also strict adaptation of those decision to the particular circumstances of each case. If this were not so, we would be living under a tyrannical rule of the law with an absolutely inhuman,i Kafkaesque machine for a penal system. On the other hand, the tyranny of extensive and excessive discretionary power with no real legal or non-legal control is just as déspotic and unacceptable from the human point of view at a time when for ten years, the rights and.liberties of the individual have begun to take on serious significance far removed from the empty symbolism of the past. I therefore believe that in no way must we continue, like the Knights of the Round Table, to seek an absolute value, pure and unattainable, whether it be the principle of legality or the principle of individualization of punishment. Life has no absolutes - only high points, tendencies, and compromises to be made over and over again. Therefore, instead of trying to establish a clear-cut position in favour of one principle or the other, I believe an honourable compromise should be envisaged for the short term. 3. Certain official bodies and certain high-placed people have taken a firm stand in recent years in favour of the principle of the
3 rule of law: the Law Reform Commission of Canada (1976), the Parliamentary Sub-Committee on the Penitentiary System in Canada (1977) and Chief Justice of the Supreme Court of Canada, Bora Laskin (1978). The Sub-Committee stated that the arbitrary decision: traditionally linked with the prisons must be replaced by explicit regulations, and that equitable disciplinary measures and valid motives must be provided for all decisions affecting inmates. Chief Justice Laskin, on the other hand, stressed the exorbitant and unprecedented tyranny of the NPB which treats inmates like puppets on a string. These are harsh words but they describe reality. Certain..people, however, on the basis of these testimonies, have demanded a complete or nearly complete termination of all decisional latitude. I am against a radical 180-degree about-turn which would simply replace the imperialism of discretionary power with the imperialism of legal or quasi-legal power. Personally I disapprove of imperialism _whether it be of the right or the left, whether it be well-intentioned or not. In medio stat virtus: the old Latin saying tells us that virtue is found on the middle road and, &till nalvely believing in proverbs, I have faith in the virtue of moderation and in temperance in ideologies as well as in practice.
4 4. With this in mind, I suggest we take the rocky road of,wigiampramiaz (less glorious, I admit than following an absolute principle, but, so much more humane) between,.on the one hand, the indignation felt, and often justified, as a result of the potential and real abuses caused by the exercise of certain unjust and arbitrary discretionary powers and, on the other hand, the impossible, useless and inhuman effort to invent a system where everything would be settled by the law and there would be no place for discretionary power. Ç y/ (., ) I believe that the middle solution must be sought/\ by presenting discretionary powers to examination by an enlightened public Land by pressure groups specialized in the correctional system. At one point, the NPB document mentions non-legal and sometimes non-explicit controls-organizational, ideological and otherswhich truly restrain the exercise of disdretionary powers. It also mentions the participation of the person in question and/or the public in the decision-making process. Personally, I believe that the following principle should be officially recognized by_aourements and administrators: the motives of any decisions made in the correctional system and relating to the rights and freedoms of the system's clients must be known, made public and justified. For some years now, discretionary power has been somewhat limited by a multitude of laws, regulation and directives. A charter of rights for inmates, for example,
5 was enacted just a few weeks ago by the Solicitor General of Canada. Consequently I would not impose many more legal controls for fear of paralyzing the penal system. On the other hand, I would decree that, henceforth, any decision of this kind be open to evaluation and criticism by the public and pressure groups. Decisions, justified and in writing would automatically, by law and without special permission, as a right and not a privilege, be put to the tests of public opinion. 5. I would like to,.stress, as well, that in my humble opinion, there is not now and never will be any magic solution eliminating the arbitrary, whether it be in the law or in the discretionary power: used. We must have standards, parameters, guidelines, and rules of play that are both known and accepted. We must have an equitable process. It is my belief that such a process may be created by means of an effective but talormal_control mecha- nism in which172.111712eilm.21e.ltnlag re lee2see- hi. am referring to public discussion, public evaluatign and public criticism. We are living in a society of men, not robots... or so we hope. The next issue of Criminologie-Québec (please excuse the free publicity) which will be on the stands in September 1981, has
'40 6 as its theme this very subject: parole in Québec. Several critical questions are raised about control, intervention, and the nature of assistance, asv.well as about bureaucratic control and freedom. In the light of certain famous cases, for example, we demand for the public, for the pressure groups and, in particular, for the people most closely concerned, the system's clients themselves, the ri ht to receive all the exa1anati2ns_ they need to fully understand the meaning and the implications of the decisions of the NPB. I think the conclusion of our editorial is also a propos of the problem that underlay the sessions of today's symposium on discretionary powers in the correctional system. We point out that: "after reading these pages, the reader will certainly have the opportunity to reflect on the future of reform measures. Once released from the enlightened minds of their innovators, these measures become victims of what the Frenct sociologist Raymond Boudon has called "the opposite effect": the unintentional consequences of social policy. These effects often pervert the nature of the objectives sought; they can even make the measures work against the intention and the principle that initially presided over their concept The history of social reform is full of examples of goals betrayed. Just look at the discrepancy in reforms in the school system, the health sector, and social security
between the everyday facts and the intention of the lawmakers, not to speak Of the high ideals of the people who dreamed up the reforms and proposed them in their learned writing. This is of the essence of social life, which is so complex and so unpredictable in its changes and its progress precisely because of the interplay between the necessity which governs the nature of - collective structures and the freedom that is deeply rooted in individual consciences. In addition, we are living in an irremediably moral world where the tensions - and conflipts between good and evil, legal and illegal, vice and virtue, are real even ie the differences appear fuzzy in a time of cultural change. Would it not be Promethean audacity to want to uphold the failing willpower oe men and women in search of their place in a world full oe pitfalls, contradictions and little real justice with simply a series of psychological and social measures? It is probably this very condition of modern man that explai] the critical disillusion that appears in these pages, from which our readers will nevertheless prove wise enough to derive more cause for hope than for despair." 6. In conclusion I would like to remind you that it is not easy as I well know, to live with such ambiguities, with compromises that must constantly be renewed. As the famous
8 scientist Hans Selye would say, it is a source of stress for everyone working in the correctional sector. But Selye also says in one of his books that work is an obligation and a duty and, if performed with a good will, a pleasure, and that stress does not kill if taken in stride. In fact, he invented the expression "eu-stress" to designate positive stress. I therefore propose we look for a criminological eu-stres in this challenge to find and to experience a compromise between the protection of rights and the principle of legality on the one hand, and, on thç. other, discretionary power and the principle of individualization within the penal system. The vice-president of the Université du Québec, Germain Gauthier, recently said that the 80s must provide new and radical solutions. We must develop our curiosity, our imagination, our creativity and even our insecurity. Gauthier favours. a state of permanent protest and perpetual anguish as a source of creativity (Forum, Université de Montréal, March 15, 1981). The well-known Québec ecologist, Pierre Dansereau (1981), adds his own grain of salt which clarifies the meaning of the challenge I am proposing for us all: the art of living consists in balancing contradictic not eliminating them.
9 On the basis of today's work, we should therefore endeavour to balance the contradictions that have been brought to light regarding discretionary powers in the correctional sector. As the French poet Verlaine said one hundred years ago "And all else is literature." Or as the Chinese proverb says: "Be like the sun-dial and count only the sunny days." May we all have sunny days in criminology. Thank you. a. André Normandeau, Ph. d. Criminologist École de criminologie Université de Montréal
SOL.GEN CANADA r7j 'fl CI\ I,. ;ORA RY SOLICITOR GENERAL CANADA DEC 9 1992 BWILIOTI-kUE SOLLICITEUP Ci:fq7:-"Pn CANADA OTIMA (CKUARIO) K 1 A ON1