Vol. 149, No. 13 — July 1, 2015
SOR/2015-141 June 10, 2015
CORRECTIONS AND CONDITIONAL RELEASE ACT
Regulations Amending the Corrections and Conditional Release Regulations
P.C. 2015-788 June 10, 2015
His Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to paragraphs 96(m.1) (see footnote a), (z.11) and (z.12) of the Corrections and Conditional Release Act (see footnote b), makes the annexed Regulations Amending the Corrections and Conditional Release Regulations.
REGULATIONS AMENDING THE CORRECTIONS AND CONDITIONAL RELEASE REGULATIONS
1. The Corrections and Conditional Release Regulations (see footnote 1) are amended by adding the following after section 162:
162.1 If the Service demands that an offender wear a monitoring device in order to monitor their compliance with a condition set out in subsection 57.1(1) of the Act, the Service is to inform the offender of the duration of the requirement.
162.2 For the purposes of subsection 57.1(2) of the Act, the prescribed official is a monitoring device coordinator.
162.3 If an offender makes representations regarding the duration of the requirement referred to in subsection 57.1(2) of the Act, the monitoring device coordinator is to review the representations and confirm or vary the duration of the requirement.
162.4 The Commissioner is authorized to make rules, by Commissioner’s Directive, regarding the consequences of tampering with or refusing to wear a monitoring device.
COMING INTO FORCE
2. These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
New provisions of the Corrections and Conditional Release Act (the Act) allow the Correctional Service of Canada (CSC) to impose an electronic monitoring (EM) regime on offenders. However, before EM can be implemented, several amendments to the Corrections and Conditional Release Regulations (the Regulations) are necessary, for two reasons: (1) to identify the CSC official to whom an offender can make representations concerning the duration of his or her requirement to wear an electronic monitoring device; and (2) to enable the Commissioner of CSC to identify the potential consequences of an offender’s tampering with or refusing to wear the monitoring device.
The Correctional Service of Canada administers the court-imposed sentences of offenders sentenced to two years or more of imprisonment. In the majority of cases, federal offenders are released from a penitentiary before their sentence has expired. For example, if they are not assessed as posing a high risk to public safety, offenders must be released after serving two thirds of their sentence; this is called statutory release. Offenders can also apply to be released earlier on parole (day or full parole), which may be granted if they do not pose an undue risk to society and their release will facilitate their reintegration into the community.
Offenders may also be absent from a penitentiary temporarily for various reasons, for example in order to be present at the funeral of a family member or to attend a medical appointment. This is referred to as a “temporary absence,” and, depending on the security risk and time in the sentence, can be “escorted” or “unescorted.”
Another type of release is a work release. The work release program enables inmates to work in the community, normally for a maximum length of 60 days. Medium- or minimum-security inmates may generally request this type of release after serving six months or one sixth of their sentence, whichever is longer. However, only inmates who do not present an undue risk of reoffending may participate in this kind of program. A work release is granted by the institutional head.
Generally speaking, the purpose of releasing offenders prior to the end of their sentence is to permit their gradual reintegration back into the community while they are under supervision by CSC. The prospect of a successful return to society is thereby improved.
When offenders are released into the community, they continue to serve their sentence under CSC supervision until their sentence ends, at which point CSC no longer has jurisdiction over them. Offenders who, at the time of sentencing, received a long-term supervision order (LTSO) are an exception. An LTSO, which is imposed by a judge, requires that CSC supervise the offender in the community for a specified period of up to 10 years after the sentence ends.
Whenever offenders are supervised in the community, regardless of the type of release, they have to abide by certain conditions. Such conditions can include adhering to curfews, residing in a halfway house, remaining within certain geographical boundaries, and staying away from certain persons.
CSC uses a number of tools to monitor offenders under its jurisdiction while they make the transition back into the community, for example maintaining contact with the offender’s family, neighbours or employer, or urinalysis to monitor a condition to abstain from alcohol or drugs. One tool that CSC is exploring is the use of electronic monitoring.
Electronic monitoring (EM) is a tool that has been used increasingly in Europe (e.g. United Kingdom, Sweden) and in North America (e.g. many U.S. states) to monitor the movement of offenders. It is used by a number of provincial correctional systems in Canada to monitor offenders released on bail and offenders who are on probation (i.e. a court disposition that allows an offender to remain in the community under specific conditions set by the court). While there are different technologies in use, offenders typically wear an ankle bracelet with a Global Positioning System (GPS) receiver or radio frequency (RF) that reports its position to a monitoring network.
In Canada, at the federal level, EM would be an additional tool available to CSC staff (i.e. parole officers) to monitor an offender’s compliance with his or her geographically based release conditions. Any apparent violation of the conditions or any attempt by the offender to tamper with or remove an EM device would result in an immediate reassessment of the offender’s risk. This may lead to counselling the offender or the issuance of a suspension warrant and dispatch of the police.
Until recently, CSC did not have legislative authority to demand that federal offenders wear an EM device.
CSC’s policies, operations, plans and priorities are guided by the Corrections and Conditional Release Act (the Act) as well as subordinate legislation, the Corrections and Conditional Release Regulations (the Regulations).
On June 13, 2012, changes to the Act [subsection 57.1(1)] came into force, granting CSC the specific legislative authority to “demand that an offender wear a monitoring device in order to monitor their compliance with a condition of a temporary absence, work release, parole, statutory release or long-term supervision that restricts their access to a person or a geographical area or requires them to be in a geographical area.”
Furthermore, an offender must also be permitted to make representations to a prescribed official as to the duration of the requirement [subsection 57.1(2)]. Finally, the Commissioner of CSC could, if changes are made to the Regulations, make rules regarding the consequences of an offender tampering with or refusing to wear a monitoring device [paragraph 96(m.1)].
The regulatory amendments have two objectives:
- identify the CSC official to whom an offender would make representations with respect to the duration of his or her requirement to wear a monitoring device; and
- enable the Commissioner to identify the potential consequences of an offender’s tampering with or refusing to wear a monitoring device.
The Regulations are amended as follows:
(1) Offender’s opportunity to make representations
The Act refers to an offender’s right to make representations to the “prescribed official” in relation to the duration of the requirement to wear a monitoring device. The term “prescribed” means “as prescribed in the Regulations.” Therefore, a new provision has been added to the Regulations to identify this official. This official is designated the “monitoring device coordinator.” The monitoring device coordinator is responsible for reviewing the offender’s representations and confirming or varying the duration of his or her requirement to wear the monitoring device.
While the monitoring device coordinator is not further designated in the Regulations, it is envisioned that this position will be held by a senior staff member, for example a supervisor at the parole office where the offender is being supervised. This will be detailed in a Commissioner’s Directive. Commissioner’s Directives are the policies or “rules” that the Commissioner of CSC creates for CSC. These policy documents must conform to the Act and the Regulations and are available publicly.
(2) Consequences for tampering with or refusing to wear a monitoring device
The Act allows the Governor in Council to make regulations authorizing the Commissioner, by Commissioner’s Directive, to make rules regarding the consequences of tampering with or refusing to wear a monitoring device. An amendment to the Regulations authorizes the Commissioner to identify — via Commissioner’s Directive — these potential consequences.
For example, a Commissioner’s Directive on EM may state that the consequences for tampering with or refusing to wear a monitoring device will include providing an opportunity for the offender to receive counselling, implementing additional supervision strategies or interventions, or cancelling or suspending the offender’s release. It should be noted that these proposed consequences will be tailored to the nature and degree of the offender’s risk, and will be similar to those applied in other situations where the offender’s risk level is deemed to have increased (e.g. having a positive urine test for drugs or alcohol).
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 to small business associated with these regulatory amendments.
In addition to extensive internal consultation, CSC met with officials from the Office of the Correctional Investigator on December 19, 2012, to consult them on the proposed regulatory amendments. There were no concerns voiced with respect to the proposed changes.
In April 2013, CSC solicited comments from the following additional stakeholders on the proposed regulatory changes:
- John Howard Society
- Elizabeth Fry Society
- CSC’s six unions
- Canadian Association of Chiefs of Police
- Parole Board of Canada
- Inmate groups and offenders in the community
- Citizen advisory committees
The Parole Board of Canada did not express any concerns with the proposed regulatory changes. However, it cautioned against CSC creating an “unwarranted burden” by having to inform the Parole Board of every instance of an offender tampering with or refusing to wear a monitoring device (even when CSC is not making a referral to the Parole Board for decision-making purposes).
Many offenders expressed their opinions on the perceived merits or shortcomings of EM in general, and requested more details on how electronic monitoring would be implemented and managed.
CSC is developing a Commissioner’s Directive on electronic monitoring, as well as related guidelines. A draft of these two documents was shared with inmate groups, as well as other stakeholders, for their comments. These policy documents will address the numerous and complex operational details of EM implementation — including the aforementioned concern of the Parole Board of Canada — which are outside the scope of the proposed regulatory changes.
The other stakeholders (John Howard Society, Elizabeth Fry Society, CSC’s unions, Canadian Association of Chiefs of Police, and CSC’s Citizen Advisory Committees), irrespective of whether or not they support the notion of electronic monitoring of offenders, did not express any concerns with regard to the proposed regulatory changes.
Finally, CSC completed a privacy impact assessment for EM implementation, which is planned to occur once the regulatory amendments are in place. (A privacy impact assessment is a process that helps determine whether initiatives involving the use of personal information raise privacy risks, that measures, describes and quantifies these risks, and that proposes solutions to eliminate the privacy risks or mitigate them to an acceptable level.)
The privacy impact assessment was submitted to the Office of the Privacy Commissioner (OPC) in the summer of 2012. The OPC had questions and recommendations in regard to EM data sharing, collecting and storage. CSC responded by explaining the legal authority for the sharing of information with law enforcement agencies, as well as further explaining the established process for data collection and storage, as per government policies. In April 2013, the OPC indicated through a formal letter to the CSC Commissioner that it was satisfied with CSC’s mitigation strategies and that it was closing the EM privacy impact assessment file.
The proposed regulatory changes, and accompanying Regulatory Impact Analysis Statement (RIAS), were published in the Canada Gazette, Part I, on April 11, 2015, followed by a 30-day comment period. In all, CSC received three comments: two from non-governmental organizations in the criminal justice field (St. Leonard’s Society of Canada, and Elizabeth Fry Society of Canada) and one comment from the Office of the Correctional Investigator, which serves as an ombudsman for federally sentenced offenders.
The comments are summarized as follows:
With respect to the RIAS, all three organizations expressed concern about the statement “The other stakeholders (John Howard Society, Elizabeth Fry Society, CSC’s unions, Canadian Association of Chiefs of Police, and CSC’s Citizen Advisory Committees) did not express any concerns with regard to the proposed regulatory changes.” It was alleged that this statement is misleading and could be misconstrued to imply that these organizations are supportive of electronic monitoring. Accordingly, the statement has been amended. St. Leonard’s Society additionally expressed concern that it was not acknowledged in the RIAS as having been consulted.
With respect to the proposed regulatory changes, St. Leonard’s Society pointed out that the role of the monitoring device coordinator, as set out in sections 162.2 and 162.3, appears to be both the decision-maker on duration as well as the correctional service employee to whom offenders may make representations in the event they do not agree with the decision. While the proposed regulatory changes do not require that the monitoring device coordinator have this dual role, even if that were the case, there is no conflict of interest. The ability of the offender to make representations is one of the procedural fairness mechanisms included in the decision-making process. Where an offender is not satisfied once he/she has had the opportunity to make representations, he/she may pursue his/her concerns further through the offender grievance procedure. Nevertheless, CSC has decided to go further and will ensure via policy that these two roles be kept separate. Specifically, in the Commissioner’s Directive on electronic monitoring, it will state that the same staff member cannot issue a demand and respond to representations in relation to the duration of that demand. The other two organizations (Elizabeth Fry Society and the Office of the Correctional Investigator) did not provide any comments that were specifically related to the proposed regulatory changes.
CSC replied, or is in the process of replying, to these three organizations via a formal letter.
CSC has concluded that, as a result of the comments received from the three organizations, as indicated above, there is no need to make any modifications to the proposed regulatory changes.
With recent changes to the Act, CSC now has the legislative authority to demand that an offender wear an EM device. In order for CSC to be able to exercise this new legislative authority and use electronic monitoring for federal offenders, several relatively minor amendments to the Regulations were required, as described above.
The amount of work related to the two new activities (i.e. considering and responding to an offender’s representations, and reassessing risk and administering consequences) is assessed as minimal and will be managed at current staff levels. No additional positions will be required to manage the added workload resulting from these regulatory amendments. The cost of procuring the monitoring devices and implementing an electronic monitoring regime will be absorbed by CSC.
Implementation, enforcement and service standards
These Regulations will come into force on the day on which they are registered. Electronic monitoring will become one among a number of tools that CSC staff may use to monitor an offender’s compliance with his or her release conditions. A new Commissioner’s Directive as well as guidelines are being developed by CSC, in consultation with internal and external stakeholders, to provide direction for the use of EM of offenders, including, potentially, implementing EM on a pilot basis. These policies are expected to be promulgated in June 2015 and will be available to the public on CSC’s external Web site. Internal audits, evaluations, performance measurement tools, regular reporting, and other mechanisms that CSC uses to monitor and ensure compliance with its offender management policies will also apply to EM.
Correctional Service of Canada
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Correctional Service of Canada
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