ARCHIVED — Vol. 148, No. 19 — May 10, 2014

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Regulations Amending the Corrections and Conditional Release Regulations

Statutory authority

Corrections and Conditional Release Act

Sponsoring agency

Correctional Service of Canada

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Correctional Service of Canada (CSC) currently lacks certain authorities in the Corrections and Conditional Release Regulations (the Regulations) to increase routine searches and restrict visits in order to prevent the entry of drugs and contraband into Canadian penitentiaries. For example, CSC does not have sufficient authority to conduct routine searches of individuals entering or leaving a penitentiary or a secure area of a penitentiary. CSC also lacks the authority to define certain areas within a penitentiary as “secure areas” for the purposes of conducting searches of individuals going in and out of these areas.

Background

The availability of drugs within prisons is a problem that correctional penitentiaries around the world struggle with. Canada is not immune to this problem. Prisons are small communities, and like in any community, hundreds of people pass in and out every day. Prison administrators, staff, trade contractors, instructors, and volunteers all enter to work and exit at the end of their shift. Garbage trucks make pick-ups. Food supplies are delivered. Canada Post and courier services deliver mail, court records, books, and packages. Inmates being gradually released leave for a few hours or days on temporary passes or supervised work crews, and come back. There are literally hundreds of movements in and out, every day of the week, and all of them present opportunities for drugs to be smuggled into prisons.

The presence of drugs in CSC penitentiaries undermines the CSC mission in several ways:

  • Drugs create an underground economy and are linked to the presence of organized crime in penitentiaries. This often results in increased violence in our penitentiaries, thus posing a risk to the security of penitentiaries;
  • Drug use has negative implications for the health of inmates, as it contributes to the spreading of infectious disease, such as HIV/AIDS and hepatitis C, and the overall poor health of the prison population; and
  • Drug use and trafficking feeds inmates’ addictions and impedes their successful rehabilitation and reintegration into society once they leave.

An independent panel was appointed in 2007 to review CSC’s operations. In October 2007, the panel submitted its report, A Roadmap to Strengthening Public Safety, to the Minister of Public Safety. Key among the panel’s recommendations were those aimed at eliminating drugs from CSC penitentiaries. The panel recommended that CSC become more rigorous in its approach to drug interdiction by improving its control and management of the introduction and use of illicit substances. The panel further recommended that CSC incorporate more stringent control measures (i.e. elimination of contact visits) if the results of an evaluation conducted by the Service do not support contact visits in certain cases. When there is reasonable proof that the visitor poses a threat to the safety and security of the penitentiary, the panel also recommended that CSC immediately limit or eliminate the use of contact visits.

CSC is currently working to eliminate the flow of drugs into penitentiaries in a number of ways, including using drug detector dogs, electronic screening technologies such as ion mobility spectrometry devices, and various types of searches (e.g. frisk). Despite the use of these tools, further authority to conduct searches and restrict visits would assist CSC in reducing the flow of drugs into federal penitentiaries.

Objectives

The objective of the proposed amendments is to eliminate the amount of drugs that enter into Canadian penitentiaries.

Description

In general, the proposed regulatory amendments would give CSC the authority to further restrict inmate visits, when necessary, and would also give CSC the authority to conduct additional searches on inmates, staff, and visitors. These amendments would assist CSC in preventing drugs and contraband from entering penitentiaries. Before describing the specific nature of the proposed amendments, it is necessary to introduce the concepts of suspicion and belief because these concepts are integral to some of the amendments themselves.

Concepts of suspicion and belief

The difference between suspicion and belief is the degree of certainty that the decision-maker has concerning the facts in question. “Reasonable grounds to believe” requires an objective basis for the belief in the alleged facts based on compelling and credible information that can be objectively established. The lower standard of “reasonable grounds to suspect” calls for a constellation of objectively discernible facts which give rise to the suspicion of the criminal activity or a risk to public safety.

In practical terms, the concept of suspicion is based on possibility rather than probability. To meet the test of reasonable grounds to suspect, there must be some indication that an individual possibly possesses contraband or evidence of some illicit activity. The standard of reasonable grounds to believe is a higher standard that requires something more than mere suspicion. This is still less than the standard applicable in civil matters of proof on a balance of probabilities, which would require a correctional officer to be more than 50% sure that an individual is carrying contraband or evidence of illicit activity.

Different kinds of searches require different degrees of probability. For example, a random frisk search does not require individualized suspicion. A non-routine frisk search requires suspicion that an inmate possibly possesses contraband, while a non-routine strip search requires belief that the inmate probably possesses contraband. A description of routine searches is provided below.

A routine strip search is a visual inspection of the naked body and a search of all clothing, things in the clothing, and other personal possessions that the person may be carrying.

A routine non-intrusive search is a search of a non-intrusive nature of the clothed body by technical means, for example, a walk through metal detector x-ray and ion mobility spectrometry device. It includes a search of personal possessions, including clothing, that the person may be carrying and any coat or jacket that the person has been requested to remove.

A routine frisk search is a manual search or a search by technical means of the clothed body and a search of personal possessions, including clothing, that the person may be carrying. This includes a search of any coat or jacket that the person has been requested to remove.

Proposed visiting amendments

The Regulations state that every inmate shall have a reasonable opportunity to meet with a visitor without a physical barrier to personal contact unless the barrier is necessary for the security of the penitentiary or the safety of any person. The legal test that the institutional head must use to determine if there are security concerns is whether he or she “believes” on reasonable grounds that the barrier is necessary. The proposed amendments would replace the legal test of “believe” with “suspect” on reasonable grounds that the barrier is necessary.

The proposed amendments would also modify section 91 of the Regulations, which deals with visits, and would indicate that the institutional head may authorize the refusal or suspension of a visit to an inmate where the institutional head suspects on reasonable grounds that during the course of the visit the inmate or visitor would jeopardize the security of the penitentiary or the safety of any person, or commit a criminal offence.

Proposed searching amendments

The proposed amendments related to the searching provisions concern CSC’s authority to conduct routine frisk, routine non-intrusive and routine strip searches of inmates entering or leaving a penitentiary or a secure area of a penitentiary. Some of these proposed amendments would authorize additional routine searches of staff, and visitors/contractors in certain prescribed circumstances. For example, a staff member would be able to conduct a routine non-intrusive search or a routine frisk search of a visitor, without individualized suspicion, when the visitor is entering or leaving the penitentiary or a secure area of a penitentiary.

The term “secure area,” which is currently not part of the Regulations, would be added to section 2 of the Regulations and be defined as an area within the penitentiary designated by the institutional head by means of institutional standing orders for that purpose. The standing order would be made available to staff and inmates so that they are aware of the areas within the penitentiary that have been designated as a “secure area.” Also, CSC would use signage to denote an area as a “secure area” and to indicate that routine searches may be conducted when entering or leaving the “secure area.”

The proposed amendments would impact inmates, staff and visitors/contractors in the following manner:

Inmates

Inmates may be subjected to routine non-intrusive searches or routine frisk searches when they are entering or leaving a secure area of a penitentiary. Inmates may be subjected to a routine strip search when they are leaving a secure area of a penitentiary.

Staff

It is proposed that staff would be able to conduct a routine non-intrusive search or a routine frisk search of another staff member when the staff are entering or leaving a secure area of a penitentiary. Currently, staff may be subject to routine non-intrusive searches or routine frisk searches when entering or leaving the penitentiary. The proposed Regulations would give the authority to conduct an additional routine search when entering or leaving a secure area of a penitentiary.

Visitors/Contractors

Currently, staff may conduct a routine search when a visitor is entering or leaving the penitentiary. The proposed amendments would allow staff to conduct a routine non-intrusive search or a routine frisk search when the visitor is entering or leaving a secure area of a penitentiary.

“One-for-one” Rule

The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to this proposal, as there are no costs on small business.

Consultation

CSC identified the following stakeholders as having an interest in or being impacted by the proposed amendments: inmates incarcerated within federal penitentiaries, staff, unions, visitors, contractors, the Office of the Correctional Investigator, and nongovernmental organizations that work with CSC. During July and August of 2012, materials, including fact sheets, questions and answers, and a draft consultation copy of the proposed Regulations, were sent to these groups for consultation purposes. The main views of each group are summarized below.

Inmates: Inmates were generally not supportive of the additional searches that may now take place when entering or leaving a secure area. They questioned what specific areas would be defined as secure areas. Inmates expressed concern that their visitors would be treated as “inmates” by being subjected to additional searches. Inmates also expressed concern that their visits would be negatively impacted and possibly denied.

Staff/Unions: Staff and unions were supportive of the proposed changes to all areas and commented that these changes would contribute to a safer penitentiary environment and would assist in decreasing the amount of drugs and contraband within penitentiaries.

Visitors: Visitors expressed concern that they could be subject to more than one search during a visit. Some visitors indicated that the additional searches when entering or leaving a secure area could make the penitentiary environment safer for inmates and staff. With respect to the change from “reasonable grounds to believe” to “reasonable grounds to suspect,” some visitors were not supportive of this change. Visitors expressed the concern that this change could increase the probability that they would be forced to have a non-contact visit.

Contractors/Volunteers: Those who responded were supportive of these amendments and noted that they would lead to a safer penitentiary environment for everyone.

Most stakeholders had questions regarding the definition of “secure area” and indicated that the Regulations need to provide more details regarding which areas within a penitentiary would be classified as “secure areas.” To alleviate this concern, CSC would provide guidelines through Commissioner’s Directives, which would be made available to the public through the CSC Web site.

Rationale

In order to reduce the flow of drugs into penitentiaries, CSC needs to add to the tools that are currently available to address this problem. In recent years, CSC has implemented non-legislative and non-regulatory measures to keep drugs from entering penitentiaries. For example, CSC increased perimeter control measures and its use of detector dogs. While these measures have assisted CSC in addressing this problem, greater results would be achieved by increasing the Service’s ability to conduct routine searches and restrict visits when necessary. CSC can only be granted additional authority to search and restrict visits via amendments to the Regulations.

Implementation, enforcement and service standards

Following approval of the proposed amendments, CSC would make necessary changes to various Commissioner’s Directives (e.g. 566-7 — Searching of Inmates) in order to implement the amendments. In-house communication material would be distributed to internal and external stakeholders, including national and regional correctional officials and institutional heads, in order to advise them of the changes to searching and visiting practices. Any necessary staff training would be provided at local operational sites, consistent with ongoing professional development efforts.

Contacts

Luisa Mirabelli
Portfolio Manager
Strategic Policy
Correctional Service of Canada
340 Laurier Avenue West
Ottawa, Ontario
K1A 0P9
Telephone: 613-992-9271
Email: Luisa.Mirabelli@csc-scc.gc.ca

Lisa Watson
Director
Strategic Policy
Correctional Service of Canada
340 Laurier Avenue West
Ottawa, Ontario
K1A 0P9
Telephone: 613-943-5299
Email: Lisa.E.Watson@csc-scc.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to section 96 (see footnote a) of the Corrections and Conditional Release Act (see footnote b), proposes to make the annexed Regulations Amending the Corrections and Conditional Release Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Luisa Mirabelli, Portfolio Manager, Correctional Service Canada, Strategic Policy, Ottawa, Ontario K1A 0P9 (tel.: 613-992-9271; fax: 613-943-0715; email: Luisa.Mirabelli@csc-scc.gc.ca).

Ottawa, May 1, 2014

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE CORRECTIONS AND CONDITIONAL RELEASE REGULATIONS

AMENDMENTS

1. Section 2 of the Corrections and Conditional Release Regulations (see footnote 1) is amended by adding the following in alphabetical order:

“secure area” means an area within a penitentiary that is designated by the institutional head by means of institutional standing orders for that purpose. (secteur de sécurité)

2. (1) Paragraph 47(a) of the Regulations is replaced by the following:

  • (a) the inmate is entering or leaving a penitentiary or a secure area;

(2) Paragraph 47(c) of the Regulations is replaced by the following:

  • (c) the inmate is entering or leaving a work or activity area in a penitentiary;

3. Paragraph 48(a) of the Regulations is replaced by the following:

  • (a) the inmate is entering or leaving a penitentiary or a secure area;

4. Subsection 54(1) of the Regulations is replaced by the following:

54. (1) A staff member may conduct a routine non-intrusive search or a routine frisk search of a visitor, without individualized suspicion, when the visitor is entering or leaving a penitentiary or a secure area.

5. Section 56 of the Regulations is replaced by the following:

56. A staff member may conduct a routine non-intrusive search or a routine frisk search of another staff member, without individualized suspicion, when that other staff member is entering or leaving the penitentiary or a secure area.

6. Paragraph 58(1)(c) of the Regulations is replaced by the following:

  • (c) the search is a routine strip search conducted under section 48 of the Act which necessitated the use of force;

7. Paragraph 90(1)(a) of the Regulations is replaced by the following:

  • (a) the institutional head or a staff member designated by the institutional head suspects on reasonable grounds that the barrier is necessary for the security of the penitentiary or the safety of any person; and

8. The portion of subsection 91(1) of the Regulations before paragraph (a) is replaced by the following:

91. (1) Subject to section 93, the institutional head or a staff member designated by the institutional head may authorize the refusal or suspension of a visit to an inmate where the institutional head or staff member suspects on reasonable grounds

COMING INTO FORCE

9. These Regulations come into force on the day on which they are registered.

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