Regulations Amending the Corrections and Conditional Release Regulations: SOR/2019-299

Canada Gazette, Part II, Volume 153, Number 17

Registration
SOR/2019-299 August 8, 2019

CORRECTIONS AND CONDITIONAL RELEASE ACT

P.C. 2019-1179 August 7, 2019

Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to sections 96 footnote a and 156 footnote b of the Corrections and Conditional Release Act footnote c, makes the annexed Regulations Amending the Corrections and Conditional Release Regulations.

Regulations Amending the Corrections and Conditional Release Regulations

Amendments

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

committee means the committee established under subsection 37.31(3) of the Act; (comité)

registered health care professional means a registered health care professional employed or engaged by the Service; (professionnel de la santé agréé)

2 Subsection 5(1) of the Regulations is amended by striking out “and” at the end of paragraph (b) and by adding the following after paragraph (b):

3 Paragraphs 6(c) to (e) of the Regulations are replaced by the following:

4 (1) The portion of section 9 of the French version of the Regulations before paragraph (a) is replaced by the following:

9 Pour l’application de l’alinéa 17(1)b) de la Loi, le directeur du pénitencier peut autoriser le détenu à sortir avec escorte :

(2) Paragraph 9(f) of the Regulations is replaced by the following:

(3) Paragraph 9(g) of the French version of the Regulations is replaced by the following:

5 Subsection 10(1) of the Regulations is replaced by the following:

10 (1) The power of the Commissioner under subsection 17(1) of the Act to approve non-medical escorted temporary absences for a period exceeding five days but not exceeding fifteen days may be exercised by the head of the region.

6 The Regulations are amended by adding the following after section 13:

13.1 (1) Once the obligations set out in subsection 34(3) of the Act have been fulfilled, the Service shall provide the inmate with an opportunity to make representations with respect to their transfer to a structured intervention unit in person or, if the inmate prefers, in writing, and those representations shall be sent to the institutional head so that they may make their determination within the timelines set out in subsection 29.01(2) of the Act.

(2) When the institutional head makes the determination set out in subsection 29.01(2) of the Act, they shall consider the inmate’s representations and the staff member’s reasons for granting the authorization and any alternative that was considered.

(3) No later than one working day after the day on which a determination was made under subsection 29.01(2) of the Act, the inmate shall be orally advised of the determination, including the reasons for the determination, and no later than two working days after the day on which the determination was made, they shall be provided with those reasons in writing.

7 Section 16 of the Regulations is replaced by the following:

16 The following transfers shall be effected by a warrant signed by,

8 The portion of section 17 of the Regulations before paragraph (a) is replaced by the following:

17 For the purposes of section 30 of the Act, the Service shall consider the following factors in assigning a security classification to each inmate:

9 The heading before section 19 and sections 19 to 23 of the Regulations are replaced by the following:

Exceptions

19 (1) For the purposes of paragraph 37(1)(c) of the Act, the prescribed circumstances are those set out in that paragraph of the Act as well as the following:

(2) An inmate shall be informed as soon as practicable of any circumstances that prevent the normal daily activities that are set out in paragraphs 36(1)(a) and (b) of the Act from being carried out.

Structured Intervention Unit Committee

20 (1) In the case of a penitentiary or area in a penitentiary designated as a structured intervention unit, the institutional head shall, for the purpose of making a determination under paragraph 37.3(1)(b) or section 37.4 of the Act, establish a structured intervention unit committee in accordance with Commissioner’s Directives.

(2) Before sending its recommendations with respect to a determination referred to in subsection (1), the structured intervention unit committee shall

(3) As soon as practicable after the scheduled meeting with the inmate, the structured intervention unit committee shall provide its written recommendations as well as the inmate’s representations, if any, to the institutional head, to the Commissioner or to a staff member designated in accordance with paragraph 5(1)(b.1), as the case may be, so that they may make their determination within the timelines set out in the Act.

21 For the purposes of section 37.11 of the Act, a staff member or a person engaged by the Service who refers an inmate’s case to the portion of the Service that administers health care shall do so as soon as practicable and notify the institutional head.

22 (1) When making a determination referred to in section 37.3 of the Act, the institutional head shall consider the inmate’s representations and any following recommendations made by:

(2) A copy of the determination shall be provided to the registered health care professional who made any recommendations.

(3) Any determination made by the institutional head — either that the inmate should remain in the structured intervention unit or that their conditions of confinement should not be altered — contrary to a recommendation set out in paragraph (1)(a), shall also be provided to the committee.

Committee

23 (1) For the purposes of subsection 37.32(1) of the Act, the committee shall consider the following factors in determining whether the inmate’s conditions of confinement in the structured intervention unit should be altered:

(2) For the purposes of subsection 37.32(2) of the Act, the committee shall consider the factors set out in paragraphs (1)(a) to (c) in determining whether the inmate should remain in the structured intervention unit.

(3) Any determination made under subsection 37.32(1) or (2) of the Act shall be in writing and provided to the inmate, the institutional head and the registered health care professional.

(4) If the determination of the committee is that the inmate should remain in the structured intervention unit or that the conditions of confinement should not be altered, a copy of the determination shall also be provided as soon as practicable to the independent external decision-maker.

23.01 (1) For the purposes of section 37.4 of the Act, the Commissioner or a staff member designated in accordance with paragraph 5(1)(b.1) of these Regulations shall consider the following factors when determining whether an inmate should remain in a structured intervention unit:

(2) No later than one working day after the day on which a determination was made under section 37.4 of the Act, the inmate shall be orally advised of the determination, including the reasons for the determination, and no later than two working days after the day on which the determination was made, they shall be provided with those reasons in writing.

Independent External Decision-Maker

Publication of Information

23.02 For the purposes of section 37.77 of the Act, a representative sampling of information related to any determination of the independent external decision-maker may be published in print and electronically and those publications are to be made available to offenders, staff members and the public.

Indigenous Inmate

23.03 For the purposes of sections 37.8 and 37.81 and subsections 37.83(1) and (3) of the Act and section 23.06 of these Regulations, in the case of an Indigenous inmate, the independent external decision-maker shall also consider the factors set out in subsection 79.1(1) of the Act.

Absence

23.04 The independent external decision-maker shall determine whether an inmate should remain in a structured intervention unit, even if they are temporarily away from it.

Decision

23.05 Any determination made under sections 37.8 and 37.81 and subsections 37.83(1) and (3) of the Act and section 23.06 of these Regulations shall be in writing and provided to both the Service and the inmate.

Determination

23.06 (1) If, in accordance with subsection 37.83(1) or (3) of the Act, the independent external decision-maker determines that the Service has taken all reasonable steps to provide an inmate with the opportunities referred to in subsection 36(1) of the Act but that, in the last 10 consecutive days, the inmate, while continuing to be confined in a structured intervention unit, has not spent a minimum of four hours a day outside their cell or has not interacted with others for a minimum of two hours a day, the independent external decision-maker shall determine, as soon as practicable, whether the inmate should remain in the structured intervention unit.

(2) The grounds and the factors set out in section 37.82 of the Act apply to the determination made under subsection (1).

Reviews

23.07 (1) For the purposes of section 37.9 of the Act, the independent external decision-maker shall review the following:

(2) Sections 37.7 to 37.73 of the Act apply to any review made by the independent external decision-maker set out in paragraphs (1)(a) and (b).

(3) The independent external decision-maker shall make recommendations and provide them, in writing, to the inmate, to the Correctional Investigator and to the Commissioner.

Health Care

Admission

23.08 (1) If a registered health care professional refers the case of an inmate for admission to a health care unit, the decision to admit the inmate is made by the health services official designated by Commissioner’s Directive and in accordance with the criteria set out in that Directive.

(2) The inmate shall be given written notice of any decision with respect to their admission to a health care unit, including the reasons for the decision.

Transfer

23.09 (1) An inmate may be transferred to a health care unit in accordance with paragraph 29(b) or (c) of the Act only if they have been admitted to the health care unit in accordance with subsection 23.08(1) of these Regulations.

(2) The inmate shall be given written notice of any refusal to transfer them to a health care unit, including the reasons for the refusal.

Discharge

23.1 (1) An inmate may be discharged from a health care unit when the health services official designated by Commissioner’s Directive determines, in accordance with the criteria set out in that Directive, that the inmate should be discharged.

(2) Once the inmate is discharged from a health care unit, they shall be transferred in accordance with section 29 or subsection 29.01(1) of the Act.

(3) An inmate shall be given written notice of any decision to discharge them from the health care unit, including the reasons for the decision.

10 Subsection 25(2) of the Regulations is replaced by the following:

(2) A notice referred to in subsection (1) shall be issued by a staff member and delivered to the inmate who is the subject of the charge as soon as practicable.

11 Section 29 of the Regulations is repealed.

12 Section 32 of the French version of the Regulations is replaced by the following:

32 (1) La personne qui tient l’audition disciplinaire rend sa décision dès que possible après l’audition.

(2) Une fois la décision rendue, le directeur du pénitencier veille à ce que le détenu en reçoive une copie dès que possible.

13 Section 40 of the Regulations is repealed.

14 Paragraph 47(d) of the Regulations is replaced by the following:

15 The portion of section 57 of the Regulations before paragraph (a) is replaced by the following:

57 If a staff member or other authorized person seizes an item during a search conducted under any of sections 47 to 64 of the Act, the staff member or authorized person shall, as soon as practicable,

16 (1) The portion of subsection 58(1) of the Regulations before paragraph (a) is replaced by the following:

58 (1) A person who conducts a search under any of sections 47 to 64 of the Act shall prepare and submit to the institutional head or a staff member designated by the institutional head, as soon as practicable and in accordance with subsection (4), a post-search report respecting the search if

(2) Subsections 58(2) and (3) of the Regulations are replaced by the following:

(2) Every employee of a community-based residential facility who conducts a search under section 66 of the Act shall prepare and submit to the person in charge of the facility, as soon as practicable and in accordance with subsection (4), a post-search report respecting the search.

(3) Every institutional head who authorizes a search of all inmates under section 53 of the Act shall prepare and submit to the head of the region, as soon as practicable and in accordance with subsection (4), a post-search report respecting the search.

17 Subsection 59(1) of the Regulations is replaced by the following:

59 (1) If an item is seized during a search conducted under any of sections 47 to 64 of the Act, the Service shall, as soon as practicable, notify the owner in writing, if the owner is known, of the seizure.

18 The portion of subsection 73(2) of the Regulations before paragraph (a) is replaced by the following:

(2) If the institutional head or staff member designated by the institutional head is notified under subsection (1) of a serious injury or a death, the institutional head or staff member shall, as soon as practicable,

19 (1) Subsection 74(1) of the Regulations is replaced by the following:

74 (1) If an offender is dissatisfied with an action or a decision by a staff member, the offender may submit a written complaint to the supervisor of that staff member.

(2) Subsection 74(3) of the French version of the Regulations is replaced by the following:

(3) Sous réserve des paragraphes (4) et (5), le supérieur examine la plainte et fournit copie de sa décision au délinquant dès que possible après que celui-ci a présenté sa plainte.

(3) Subsection 74(5) of the Regulations is replaced by the following:

(5) If a supervisor refuses to review a complaint under subsection (4), the supervisor shall give the offender a copy of the supervisor’s decision, including the reasons for the decision, as soon as practicable after the offender submits the complaint.

20 Section 75 of the Regulations is replaced by the following:

75 If an offender is not satisfied with the decision referred to in subsection 74(3) or if a supervisor refuses to review a complaint under subsection 74(4), the offender may submit a written grievance

21 (1) Subsections 77(2) and (3) of the French version of the Regulations are replaced by the following:

(2) Le comité d’examen des griefs des détenus présente au directeur du pénitencier ses recommandations au sujet du grief du détenu, dès que possible après en avoir été saisi.

(3) Le directeur du pénitencier remet au détenu une copie de sa décision dès que possible après avoir reçu les recommandations du comité d’examen des griefs des détenus.

(2) Section 77 of the Regulations is amended by adding the following after subsection (3):

(4) This section does not apply to grievances related to health services.

22 Section 78 of the Regulations is replaced by the following:

78 The person who is reviewing a grievance under section 75 shall give the offender a copy of the person’s decision as soon as practicable after the offender submits the grievance.

23 Subsections 79(2) and (3) of the French version of the Regulations are replaced by the following:

(2) Le comité externe d’examen des griefs présente au directeur du pénitencier ses recommandations au sujet du grief du détenu dès que possible après en avoir été saisi.

(3) Le directeur du pénitencier remet au détenu une copie de sa décision dès que possible après avoir reçu les recommandations du comité externe d’examen des griefs.

24 Subsection 80(3) of the Regulations is replaced by the following:

(3) The Commissioner shall give the offender a copy of his or her decision, including the reasons for the decision, as soon as practicable after the offender submits an appeal.

25 (1) Subsections 97(1) and (2) of the Regulations are replaced by the following:

97 (1) The Service shall, without delay, inform every inmate who is arrested of their right to legal counsel and give them an opportunity to retain and instruct legal counsel.

(2) The Service shall, without delay, inform every inmate who is the subject of any of the following of their right to legal counsel and give them a reasonable opportunity to retain and instruct legal counsel:

(2) The portion of subsection 97(3) of the English version of the Regulations before paragraph (a) is replaced by the following:

(3) The Service shall ensure that an inmate has reasonable access to

(3) Section 97 of the Regulations is amended by adding the following after subsection (3):

(4) If an inmate is given an opportunity to make representations related to a determination or review about their confinement in a structured intervention unit, the Service shall give the inmate a reasonable opportunity to retain and instruct legal counsel to assist them with the preparation and, if applicable, the presentation of those representations.

26 Subsection 102(1) of the French version of the Regulations is replaced by the following:

102 (1) Le directeur du pénitencier doit veiller à ce qu’un plan correctionnel soit élaboré avec le détenu dès que possible après son admission au pénitencier et qu’un suivi de ce plan soit fait avec le détenu afin de lui assurer les meilleurs programmes aux moments opportuns pendant l’exécution de sa peine dans le but de le préparer à sa réinsertion sociale à titre de citoyen respectueux des lois.

27 The heading before section 114 of the English version of the Regulations is replaced by the following:

Indigenous Offenders

28 Section 114 of the Regulations is replaced by the following:

114 If an offender submits a request for a transfer to the care and custody of the appropriate Indigenous authority under subsection 81(3) of the Act, the Commissioner or a staff member designated by the Commissioner shall, within 60 days after the request is made, consider the request, consult with the appropriate Indigenous authority and give the offender written notice of the decision, including the reasons for the decision if the request is denied.

29 Subsection 116(2) of the Regulations is replaced by the following:

(2) If an inmate has not indicated the name of a person under subsection (1), the institutional head or staff member shall, as soon as practicable, notify the inmate’s next of kin.

30 Subsection 117(2) of the Regulations is replaced by the following:

(2) The Service may, for compassionate reasons or where the costs of the funeral of an inmate would prevent the body of the inmate being claimed, pay all or part of the costs of the funeral in the hometown of the inmate or of the person who claims the body.

31 Paragraph 131(1)(b) of the Regulations is replaced by the following:

32 Subsections 146(1) and (2) of the French version of the Regulations are replaced by the following:

146 (1) Le responsable du bureau de libérations conditionnelles peut exercer le pouvoir conféré au directeur du pénitencier, en vertu du paragraphe 116(10) de la Loi, d’annuler, après la sortie du délinquant, la permission de sortir sans escorte.

(2) Le responsable du bureau de libérations conditionnelles peut exercer le pouvoir conféré au directeur du pénitencier, en vertu du paragraphe 117(3) de la Loi, de suspendre une permission de sortir sans escorte.

33 Paragraph 155(f) of the Regulations is replaced by the following:

34 Section 156 of the French version of the Regulations is replaced by the following:

156 (1) Le délinquant peut présenter par écrit à l’autorité compétente une demande de sortie sans escorte pour l’un des motifs visés à l’article 155.

(2) Le délinquant ne peut présenter la demande visée au paragraphe (1) plus tôt que dans les douze mois précédant la date de son admissibilité à une sortie sans escorte.

(3) Sous réserve du paragraphe (4), l’autorité compétente doit examiner le cas du délinquant qui présente une demande de sortie sans escorte dans les six mois suivant la réception de la demande, mais elle n’est pas tenue de le faire plus de deux mois avant la date d’admissibilité du délinquant à une telle sortie.

(4) Avec l’accord du délinquant, l’autorité compétente peut reporter l’examen visant une sortie sans escorte.

(5) L’autorité compétente peut ajourner, pour une période d’au plus deux mois, l’examen visant une sortie sans escorte si, selon le cas, elle a besoin :

(6) L’autorité compétente n’est pas tenue de procéder, par période de six mois, à plus d’un examen des demandes visées au paragraphe (1) concernant le même délinquant, exception faite des demandes de sortie sans escorte pour raisons médicales.

35 (1) Subparagraph 160(1)(a)(ii) of the French version of the Regulations is replaced by the following:

(2) Paragraph 160(1)(b) of the French version of the Regulations is replaced by the following:

36 Subsection 161(2) of the French version of the Regulations before paragraph (a) is replaced by the following:

(2) Pour l’application du paragraphe 133(2) de la Loi, les conditions de mise en liberté imposées au délinquant dans tous les cas de permission de sortir sans escorte sont les suivantes :

37 Paragraphs 162(1)(a) and (b) of the French version of the Regulations are replaced by the following:

38 Section 164 of the French version of the Regulations is replaced by the following:

164 (1) Tant que la Commission n’a pas accordé une première sortie sans escorte ou une première mise en semi-liberté au délinquant qui purge dans un pénitencier soit une peine d’emprisonnement à perpétuité infligée comme peine minimale ou à la suite de commutation d’une peine de mort, soit une peine d’emprisonnement d’une durée indéterminée, la Commission doit examiner par voie d’audience le cas de ce délinquant s’il demande une permission de sortir sans escorte.

(2) Si l’agrément de la Commission est requis aux termes du paragraphe 747(2) du Code criminel et tant que la Commission n’a pas agréé une première sortie avec escorte pour le délinquant qui purge une peine d’emprisonnement à perpétuité infligée comme peine minimale ou à la suite de commutation d’une peine de mort, la Commission doit examiner par voie d’audience le cas de ce délinquant s’il demande une permission de sortir avec escorte pour du service à la collectivité, des rapports familiaux, du perfectionnement personnel lié à la réadaptation ou des responsabilités parentales.

39 The schedule to the Regulations is replaced by the schedule set out in the schedule to these Regulations.

Coming into Force

40 These Regulations come into force on the day on which sections 3, 7, 10, 11, 14 and 28 to 30 and subsections 31(1) and (2) of An Act to amend the Corrections and Conditional Release Act and another Act, chapter 27 of the Statutes of Canada, 2019, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

SCHEDULE

(Section 39)

SCHEDULE

(Subsection 94(2))

  1. Governor General of Canada
  2. Minister of Public Safety and Emergency Preparedness
  3. Judges of Canadian courts, including provincial court judges and the registrars of those courts
  4. Members of the Senate
  5. Members of the House of Commons
  6. Consular officials
  7. Members of provincial legislative assemblies
  8. Members of the Legislative Assembly of Yukon, the Northwest Territories or Nunavut
  9. Deputy Minister of Public Safety and Emergency Preparedness
  10. Commissioner of Corrections
  11. Chairperson of the Parole Board of Canada
  12. Commissioner of Official Languages
  13. Canadian Human Rights Commission
  14. Information Commissioner
  15. Privacy Commissioner
  16. Provincial ombudspersons
  17. Persons within the Correctional Service of Canada responsible for internal audits and investigations
  18. Privacy co-ordinators of federal departments
  19. Correctional Investigator of Canada
  20. Legal counsel
  21. Independent external decision-makers
  22. Police Ethics Commissioner for the Province of Quebec
  23. Public Sector Integrity Commissioner of Canada
  24. Members of the Correctional Service of Canada Office of Internal Disclosure
  25. Any Chief Electoral Officer in Canada

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

On June 21, 2019, Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, received royal assent. These legislative amendments eliminate the use of administrative and disciplinary segregation and introduce a new correctional intervention model to promote rehabilitation in a secure environment. Corresponding amendments to the Corrections and Conditional Release Regulations (CCRR or the Regulations) are necessary to operationalize the changes that have been made to the Corrections and Conditional Release Act (CCRA or the Act).

Background

Correctional Service of Canada (CSC) is the federal government agency responsible for administering sentences of a term of two years or more, as imposed by the courts. CSC is responsible for managing institutions of various security levels and for supervising offenders under conditional release in the community. On average, there is an annual flow-through of 20 000 inmates in CSC’s in-custody population.

In addition to the Act and the CCRR, Commissioner’s Directives are used as national policy instruments that structure correctional practices and their implementation. They set out policy objectives, rules, and procedures to be followed by CSC staff in all federal correctional institutions. More specifically, Commissioner’s Directives stipulate responsibilities and accountabilities related to what staff will accomplish and provide indicators on which the performance of CSC will be evaluated. Once a Commissioner’s Directive is promulgated, it is applicable nationally.

Administrative segregation

There are times in federal correctional institutions when inmates must be separated from the mainstream inmate population for safety and security reasons. To this end, the Act and the Regulations authorize the use of administrative segregation. The purpose of administrative segregation is to maintain the security of the penitentiary and the safety of any person by not allowing an inmate to associate with other inmates. Inmates in administrative segregation have an opportunity to be out of their cell for a minimum of two hours daily and are restricted in their ability to associate with others. The Act mandates that an inmate be released from administrative segregation at the earliest appropriate time. Recent policy changes implemented by CSC have led to a decline in administrative segregation placements.

Policy changes implemented by CSC have led to a decline in the average number of admissions to administrative segregation and the total number of inmates in administrative segregation at any time. In fiscal year 2018–2019, there were a total of 5 441 admissions to administrative segregation compared to 8 320 in the 2014–2015 fiscal year. As of April 30, 2019, there were 322 inmates in administrative segregation compared to 728 in April 2014.

Recent constitutional challenges

There have been two constitutional challenges to the Government of Canada’s legislation governing administrative segregation. On December 18, 2017, the Ontario Superior Court of Justice in the case of Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen ruled that the absence of review by an independent (internal) decision-maker by the fifth day is procedurally unfair and violates section 7 of the Canadian Charter of Rights and Freedoms (the Charter); the Court had suspended its declaration of invalidity of the legislation until December 2018. Canada did not appeal that finding, however, it sought an extension.

On April 26, 2019, the Ontario Court of Appeal (ONCA) granted the extension until June 17, 2019, if CSC implemented the fifth-day independent review, but in its order stated that regardless, on June 18, 2019, the legislation governing administrative segregation would be of no force or effect. On June 13, 2019, Canada sought leave to appeal the ONCA’s order with the Supreme Court of Canada (SCC). It also sought a stay and extension until November 30, 2019. On June 14, 2019, the SCC granted an interim stay and interim extension until it determines the motion for an extension and stay, which will be dealt with on an expedited basis.

The Canadian Civil Liberties Association (CCLA) appealed the lower court’s decision, with the exception of the finding related to the fifth-day review, and on March 28, 2019, the ONCA determined that administrative segregation longer than 15 consecutive days violates section 12 of the Charter; the Court granted a 15-day suspension of its declaration of invalidity. Canada has sought leave to appeal that decision with the SCC and sought a stay. On April 11, 2019, the SCC granted Canada an interim-interim stay until the SCC makes a decision on the interim stay.

On January 17, 2018, the Supreme Court of British Columbia, in British Columbia Civil Liberties Association and John Howard Society of Canada v. Canada, ruled that administrative segregation was unconstitutional pursuant to sections 7 and 15 of the Charter on the grounds of prolonged, indefinite placement in administrative segregation; placement of mentally ill/disabled inmates in administrative segregation; lack of an independent (external) decision-maker; deprivation of inmates’ right to counsel; and potential for discriminatory application for Indigenous inmates. Canada has appealed that decision.

On June 24, 2019, the British Columbia Court of Appeal (BCCA) released its decision, allowing Canada’s appeal in part. The Court upheld the lower court’s declaration that the CCRA violates section 7 of the Charter, as it authorizes prolonged, indefinite administrative segregation and does not require external review at the fifth working day. The Court issued a declaration that CSC breached its statutory obligations to ensure that inmates in administrative segregation have a reasonable opportunity to retain and instruct counsel; the Court declared that inmates have a constitutional right to be represented by counsel at segregation review hearings. The Court disagreed with the finding that the impugned provisions violate section 15 of the Charter for either Indigenous or mentally ill and/or disabled inmates. The Court issued a declaration that CSC has, in its administration, breached its statutory obligations to give meaningful consideration to the health care needs of mentally ill and/or disabled inmates before placing or confirming the placement of such inmates in administrative segregation. On June 26, 2019, the BCCA granted Canada’s request for an extension of the suspension of invalidity until November 30, 2019.

Transforming federal corrections

The Government has taken important steps to transform the federal correctional system by advancing mental health care improvements for all inmates and introducing legislative reform. In Budgets 2017 and 2018, the Government invested almost $80 million to improve mental health care capacity in correctional institutions and to improve conditions of confinement. In the 2018 Fall Economic Statement, the Government announced an additional investment of $448 million. This includes more than $150 million to strengthen mental health care within the federal correctional system through the early diagnosis and treatment of inmates with mental health needs, which is expected to lead to fewer institutional incidents resulting from an undiagnosed or untreated mental illness.

On October 16, 2018, the Government also introduced Bill C-83, which provides for important changes to the Act. These include the elimination of administrative and disciplinary segregation and the introduction of a new correctional intervention model to promote rehabilitation in a secure environment. Under this model, structured intervention units (SIUs) will provide inmates with interventions, programs and mental health care when they cannot be managed safely within the mainstream inmate population. Inmates in an SIU will have the opportunity to be outside of their cell for at least four hours a day, as well as an opportunity for at least two hours a day to interact with others including staff, volunteers and other compatible inmates.

The opportunity for interventions is aimed at specifically addressing their risks and needs relative to living in the mainstream inmate population, with the goal of facilitating their reintegration as soon as possible. Bill C-83 introduced multiple review mechanisms throughout an inmate’s confinement in an SIU. In addition to independent internal reviews conducted by both the institutional head and the Commissioner of CSC, or their delegate, oversight will be provided by decision-makers external to CSC — independent external decision-makers (IEDMs).

The amendments to the Act introduced by Bill C-83 strengthen the provision of health care by affirming CSC’s responsibility to support the professional autonomy and clinical independence of registered health care professionals; by requiring that CSC provide inmates with access to patient advocacy services; and by allowing the Commissioner to establish health care units to provide inmates with an appropriate living environment to facilitate their access to health care.

Bill C-83 also reinstates the obligation for CSC to use the least restrictive measures possible when managing offenders; addresses the specific needs of Indigenous offenders by establishing the legislated requirement for CSC to consider the systemic and background factors unique to Indigenous offenders to be considered in all correctional decision-making; better supports victims of crime by allowing increased access for victims to audio recordings of Parole Board of Canada hearings; and provides less invasive alternatives to physical body cavity searches and strip searches with the introduction of searches through body scanning technology.

Bill C-83 received royal assent on June 21, 2019. While some of the legislative amendments came into force right away, the provisions relevant to SIUs, IEDMs, health care and body scanning technology will come into force on a date fixed by the Governor in Council. To support the timely implementation of Bill C-83 and prevent a possible legislative vacuum as a result of the court decisions, associated amendments to the Regulations are required. The regulatory amendments outlined herein are those immediately required to implement the SIU framework and health care units. Additional regulatory amendments are expected to be brought forward at a later date for those provisions in Bill C-83 that do not require an expedited timeline, such as the use of body scanning technology.

Objective

These regulatory amendments support and operationalize the legislative changes introduced through Bill C-83, which strengthens the federal correctional system’s ability to provide a safe and humane environment for inmates; and to support the rehabilitation of offenders and their reintegration into the community and to reduce the risk of reoffending, keeping our communities safe.

Description

The regulatory amendments cover the following four broad areas:

  1. Structured intervention units
  2. Independent external decision-maker
  3. Health services
  4. Technical and consequential amendments

A more detailed description of each of these areas is provided below.

1. Structured intervention units (SIUs)

The Act establishes structured intervention units (SIUs) to provide a temporary living environment for inmates when they cannot be maintained in the mainstream inmate population for security or other reasons. Under the Act, inmates may be transferred to an SIU only if there are no reasonable alternatives and there are reasonable grounds to believe that

Pursuant to the Act, the initial authorization to transfer an inmate to an SIU will be made by a CSC staff member who holds a position lower in rank than that of institutional head/warden of the penitentiary and who is designated by the Commissioner of CSC. footnote 2 This decision will be reviewed within five working days by the institutional head, who will determine whether the inmate should remain in an SIU.

To support implementation of the legislative provisions related to SIUs, the following regulatory amendments have been made:

Placements and transfers

A new provision is being added to the Regulations to ensure that the inmate is afforded procedural fairness when transferred to an SIU. Once a decision has been made to transfer an inmate to an SIU under the Act, the amendments to the Regulations require CSC to provide the inmate with an opportunity to make representations with respect to their transfer to an SIU (in person or in writing) and they require that these representations be provided to the institutional head, and that the institutional head take them into consideration when determining whether the inmate should remain in an SIU. As noted above, the institutional head must make this decision within five working days.

The Act introduced a new authority allowing CSC to transfer inmates within a penitentiary or to an SIU. Consequential amendments to the Regulations have been made so that a warrant to effect a transfer is only required when an inmate is transferred from one penitentiary to another, or to a provincial correctional facility or hospital (i.e. so that a warrant is not needed to transfer to an SIU or a different security level within the same institution).

Right to counsel

The Regulations already included the right to counsel; however, they have been updated to ensure a reasonable opportunity to retain and instruct legal counsel when an inmate is transferred to an SIU or detained in a dry cell. In addition, it has been made explicit that an inmate in an SIU is entitled to a reasonable opportunity to retain and instruct legal counsel to assist them in the preparation and presentation of any representations with respect to a determination or review about their confinement in an SIU.

Exceptions

Pursuant to the Act, inmates in an SIU will be provided with the opportunity to spend a minimum of four hours a day outside their cell and to interact with others for a minimum of two hours a day. This notwithstanding, under the Act, inmates may not receive these opportunities if they refuse to avail themselves of them; do not comply with reasonable instructions to ensure their safety or that of any other person or the security of the penitentiary; or, in exceptional circumstances, as required for security purposes (e.g. natural disasters, fires, riots and work refusals under the Canada Labour Code).

The amendments to the Regulations complete a finite list of these exceptional circumstances by adding power failures, epidemics, and any events that significantly affect the physical infrastructure of the penitentiary. These circumstances may only be invoked within the limits of what is reasonably required for security purposes. The amendments also require CSC to inform the inmate of the reasons for not receiving these entitlements as soon as practicable. The intent of these changes is to ensure that CSC only limits an inmate’s time out of their cell in an SIU and their opportunity to meaningfully interact with others when there are clear and exceptional circumstances related to safety and security.

Structured intervention unit committee

In addition to the fifth-day review, the Act requires the institutional head to determine whether an inmate should remain in an SIU within 30 days of their initial confinement in an SIU. If the institutional head determines that the inmate should remain in an SIU, the Commissioner will then review the case no later than 30 days after the institutional head’s decision, and every 60 days thereafter if the inmate subsequently remains in an SIU. The amendments to the Regulations authorize a staff member designated by name or position to carry out this function on behalf of the Commissioner, such as the Senior Deputy Commissioner.

To support these reviews, the amendments to the Regulations require the institutional head of a penitentiary that includes an SIU to establish a structured intervention unit committee to make recommendations to the institutional head, the Commissioner, or their delegate, whichever the case may be, as to whether or not the inmate should remain in an SIU.

The objective of the SIU committee is to provide recommendations to the institutional head and the Commissioner ahead of their respective decisions (based on the statutory timelines noted above) on whether or not an inmate should remain in an SIU. Each penitentiary with a designated SIU will have an SIU committee composed of staff members designated in Commissioner’s Directives (e.g. these members are likely to include the inmate’s assigned Parole Officer, the manager of the SIU, the Deputy Warden, and a Security Intelligence Officer).

Before sending its recommendations, the SIU committee will ensure that the inmate is given written notice of the proposed recommendations, including reasons, and meets with the inmate to explain the reasons and give them an opportunity to respond either in person or in writing. Inmates will be given written notice at least three working days in advance of this meeting in order to prepare their representations and a reasonable opportunity to retain and instruct legal counsel to assist them in the preparation and presentation of these representations. The SIU committee will then provide its written recommendations to the appropriate decision-maker, the institutional head or the Commissioner, as the case may be, to consider ahead of making their decision. With procedural fairness built into the model, CSC will be able to ensure the inmate is heard and is involved in the decision-making process.

When making a decision on whether or not an inmate will remain in an SIU, the amendments to the Regulations require the institutional head and the Commissioner to consider the inmate’s representations and the SIU committee’s recommendations. Once the institutional head or the Commissioner makes a decision, it must be provided to the inmate orally (within one day) and in writing (within two days).

Manner to refer a case to health care

Under the Act, a staff member or a person engaged by CSC (i.e. contracted to work for CSC, such as an Indigenous elder) must refer, in a prescribed manner, the case of an inmate to the portion of CSC that administers health care should they believe that the confinement of an inmate in an SIU is having detrimental impacts on the inmate’s health. Grounds for this belief include that the inmate confined in an SIU is refusing to interact with others; engaging in self-injurious behaviour; showing symptoms of a drug overdose; or showing signs of emotional distress or exhibiting behaviour that suggests that they are in urgent need of mental health care. The amendments to the Regulations require that a CSC staff member or person engaged by CSC who refers the case to the portion of CSC that is responsible for inmate health care must do so as soon as practicable and notify the institutional head.

The institutional head’s determination, as soon as practicable after the recommendation of a health care professional that the inmate not remain in the unit

The Act enables a registered health care professional to recommend to the institutional head that, for health reasons, the conditions of confinement of the inmate in an SIU be altered or that the inmate not remain in the unit. Upon receiving this recommendation, the institutional head must, as soon as practicable, determine whether the inmate should remain in the unit or whether the conditions of confinement should be altered. The amendments to the Regulations require that when making this decision, the institutional head must consider the inmate’s representations and the recommendations of the registered health care professional. The amendments also require that copies of the institutional head’s decision, with written reasons, must be provided to the registered health care professional. The Act also requires that the decision, with reasons, be provided to the inmate.

Health committee

In circumstances where the institutional head has made a decision that either the inmate is to remain in the SIU or that their conditions of confinement should not be altered, the decision and written reasons must also be provided to the “health” committee established by the Commissioner under the Act. Under the Act, this “health” committee is tasked with making a subsequent determination. The objective of this committee is to review and determine whether the inmate’s conditions of confinement should be altered or whether the inmate should be removed from the SIU in accordance with the original recommendations made by the registered health care professional (i.e. those not followed by the institutional head). This committee is composed of CSC staff members who hold a position higher in rank than that of the institutional head (e.g. Assistant Commissioner of Health Services, Regional Deputy Commissioner) and is provided with advice by a senior registered health care professional.

The intent of these legislative amendments is to provide for the autonomy of health care staff to exercise their professional judgment related to the health care needs of an inmate in an SIU and to create a process where health care professionals can make recommendations based on health care-related issues. This will help ensure that the health care and mental health care needs of inmates in the SIU are considered and addressed.

The amendments to the Regulations outline the procedural fairness requirements related to the committee’s determination on whether or not to alter the inmate’s conditions of confinement or removal from an SIU, for health reasons, including that the committee must consider the inmate’s representations, the institutional head’s decision with reasons, and the original recommendation made by the registered health care professional.

Once this committee makes its decision, the regulatory amendments require that it be in writing and that a copy be provided to the inmate, the institutional head and the registered health care professional. If the committee’s decision is that the inmate should remain in an SIU or that their conditions of confinement should not be altered, the regulatory amendments require that a copy of this decision be provided to an IEDM as soon as practicable.

2. Independent external decision-maker

The Act establishes IEDMs to provide for external oversight of decisions to maintain inmates in SIUs and of their conditions of confinement. Under the Act, an IEDM’s review of a case will be triggered when

IEDMs are to be appointed by the Minister of Public Safety and Emergency Preparedness. These regulatory amendments outline, in greater detail, some of the roles and responsibilities of IEDMs, as follows:

Publication of information

Under the Act, an IEDM may publish or otherwise disseminate information (other than personal information) relating to any determination they make, in accordance with the Regulations. The amendments to the Regulations permit IEDMs to publish a representative sampling of information related to any determination they make, online and in print, and to make it available to offenders, CSC staff members and the public.

Determinations

The amendments to the Regulations require that

Prescribed reviews and determinations

Under the Act, IEDMs may be asked to conduct additional reviews or determinations, which are to be prescribed by the Regulations. The amendments to the Regulations prescribe an additional determination to be undertaken by IEDMs. This process is triggered when an inmate does not spend a minimum of four hours a day outside their cell or did not interact with others for a minimum of two hours a day for at least 10 consecutive days. In addition, in order to trigger this determination, the IEDM must have already determined under the Act that CSC had taken all reasonable steps to provide the inmate with these opportunities. The IEDM must then determine whether the inmate should remain in the SIU. This is based on whether the IEDM believes on reasonable grounds that allowing the inmate’s reintegration into the mainstream inmate population would jeopardize the safety of the inmate or any person or the security of the penitentiary, or would interfere with an investigation that could lead to criminal charges or a charge of a serious disciplinary offence under the Act, and takes into account the inmate’s correctional plan, the appropriateness of their confinement in the penitentiary, the appropriateness of their security classification and any other consideration that they consider relevant.

Any decision made by IEDMs in this circumstance must be provided to the inmate and CSC, in writing.

The amendments also prescribe the following additional reviews for the IEDM to undertake:

The amendments to the Regulations require IEDMs to make recommendations, in writing, in these circumstances and they must be provided to the inmate, the Correctional Investigator footnote 3 and to the Commissioner.

3. Health care

Admission, transfer and discharge from health care units

The Act authorizes the Commissioner to establish health care units in order to provide the appropriate living environments to facilitate inmates’ access to health care; however, these units already exist in practice. The amendments to the Regulations establish the process for the admission to, or discharge from, these health care units.

Under the amendments to the Regulations, following a referral by a registered health care professional employed or engaged by CSC, a health services official, designated by Commissioner’s Directive, will assess the case. The assessment will be based on criteria set out in that Commissioner’s Directive, including the inmate’s level of need, the availability of services, and the inmate’s willingness to engage in treatment, and then a decision will be made on whether the inmate should be admitted to a health care unit. If a health services official determines that the inmate should or should not (in either case) be admitted to a health care unit, they will provide their decision in writing, with reasons, to the inmate.

In the case of a transfer, an inmate may be transferred by the institutional head, if the health services official has authorized the inmate’s admission in a health care unit. If it is determined that the inmate will not be transferred, the inmate must be advised, in writing and with reasons.

An inmate will be discharged from a health care unit when a health services official, designated by Commissioner’s Directive and in accordance with the criteria in that Directive (e.g. this could be the Manager of Mental Health in mainstream institutions, i.e. medium or maximum security level institutions; for regional hospitals it would be a physician), makes a decision that the inmate should be discharged. An inmate must be advised in writing and with reasons of any decision to discharge them from the health care unit.

Grievance procedure

The regulatory amendments realign the grievance procedure to support the professional autonomy and clinical independence of registered health care professionals. Specifically, grievances concerning the provision of health care services will now be addressed by a health services official designated by the Commissioner to deal with these grievances rather than the institutional head.

4. Technical and consequential amendments

Update to the Schedule

Under the Act, letters to and from inmates to certain privileged correspondents, which are outlined in the Schedule of the Regulations, are not to be opened and read, unless certain circumstances are met (e.g. a reasonable belief that communications contain evidence of a criminal offence). The Schedule has been updated as follows:

Repeal or amend references to administrative and disciplinary segregation

Bill C-83 repealed provisions in the Act authorizing administrative and disciplinary segregation. Accordingly, consequential regulatory amendments have been made to (a) remove references related to those legislative provisions; (b) replace, where applicable, references to administrative segregation with references to SIUs; and (c) repeal regulatory provisions specifically tailored to the administrative and disciplinary segregation context.

For example, section 29 (under Notice of Disciplinary Charges) of the Regulations is repealed. This provision required that an inmate who was placed in administrative segregation for disciplinary reasons be given first priority over any other hearings of disciplinary offences. As another example, section 40 (under Sanctions) of the Regulations is repealed. This provision required that where an inmate is ordered to serve a period of segregation while subject to a sanction of segregation for another serious disciplinary offence, the order will specify whether the two periods of segregation are to be served concurrently or consecutively; and where they are to be served consecutively, the total period of segregation won’t exceed 45 days. As Bill C-83 eliminated both the use of administrative segregation and disciplinary segregation, sections 29 and 40 of the Regulations have become obsolete.

Terminology

Regulatory amendments have been made to change references from “aboriginal” to “Indigenous” to ensure consistency with the language used in Bill C-83.

Definitions

Two new definitions have been added to the Regulations for “committee” and “registered health care professional.” Under the amendments to the Regulations, the “committee” is defined as the one established under subsection 37.31(3) of the Act. This provision of the Act allows the Commissioner of CSC to establish a committee that will be tasked with making determinations on whether or not an inmate should remain in an SIU or whether their conditions of confinement in the SIU should be altered.

Under the amendments to the Regulations, registered health care professional means a registered health care professional employed or engaged by CSC. Examples of these professionals include nurses, psychologists, doctors who may be directly employed by CSC or contracted to work in CSC institutions.

Standing Joint Committee for the Scrutiny of Regulations

To address recommendations made by the Standing Joint Committee for the Scrutiny of Regulations in 2001 and in 2013, the following technical amendments have been made to the Regulations:

Consequential amendments

As a result of amendments made to the Act by An Act to amend the Corrections and Conditional Release Act (escorted temporary absence), which received royal assent on December 16, 2014, an amendment has been made to subsection 10(1) of the Regulations. This amendment removes the reference to paragraph 17(1)(f) of the Act and replaces it with a reference to subsection 17(1) of the Act. This is a consequential amendment that reflects changes made to the Act that eliminated paragraphs 17(1)(e) and (f) and incorporated their content into subsection 17(1) itself.

Regulatory development

Consultations

On May 6, 2019, Public Safety Canada posted a consultation paper about the proposed amendments on the Consulting with Canadians website. There were a total of 51 stakeholders who were notified of the online consultation period, which included provincial governments, Indigenous advocacy groups, mental health organizations, inmate advocacy groups, legal professionals and experts and human rights advocacy groups. The consultation paper was also shared with unions representing CSC employees and inmate committees (i.e. representing the interests of inmates within each federal corrections institution).

Notification included the following key stakeholders:

Interested stakeholders were asked to share their input on the proposed regulatory amendments by May 24, 2019. In response to the consultation period, 35 submissions were received: 6 were from private citizens (including an individual with lived experience in administration segregation) and 19 were from inmate committees in federal institutions (3 from the Quebec Region, 2 from the Atlantic Region, 1 from the Prairie Region, 8 from the Pacific Region and 7 from the Ontario Region). The remaining 10 submissions were from a Member of Parliament, the Office of the Correctional Investigator, the Canadian Human Rights Commission, the Mennonite Central Committee, the Centre for Addiction and Mental Health, the Westcoast Genesis Society, the Ontario Federation of Indigenous Friendship Centres, the Native Women’s Association of Canada, the Prisoner’s Legal Services, and the Canadian Criminal Justice Association.

Feedback and recommendations on the Act and/or CSC policies

The vast majority of the submissions received contained feedback and recommendations related to the legislative changes being proposed in Bill C-83 and to operational requirements that are, or will be, outlined in Commissioner’s Directives. Examples of the feedback received included

Other stakeholder feedback included requests for significant reforms to the Act, the Regulations and CSC policy. However, given that the purpose of the consultation period was narrow in scope (i.e. to obtain feedback on the specific regulatory changes needed to operationalize and implement the legislative changes proposed in Bill C-83), much of it was determined to be outside the scope of these regulatory amendments and could not be addressed through this initiative. All comments related to the legislative changes made under Bill C-83 and to operational policies implemented under Commissioner’s Directives were retained and shared with the appropriate areas within Public Safety Canada and CSC for consideration in future policy development.

Feedback and recommendations related to the regulatory amendments

In general, positive feedback was received from legal advocacy groups, a prisoner advocacy group, and inmate groups on the procedural fairness requirements (for inmates) that have been incorporated into the regulatory amendments. This includes support for written reasons to be provided to the inmate, their counsel and in some circumstances, the health care professional. The opportunity for inmates to have in-person hearings and reviews was also strongly supported, with a recommendation that it always be the inmate’s choice and that the inmate be represented by legal counsel at those hearings. In addition, recommendations were made that when information is shared with the inmate, the institution should provide their counsel with the necessary documents as early as possible ahead of SIU review hearings. These recommendations were considered and the regulatory amendments clarify that inmates have a right to have legal counsel present at all SIU review hearings.

Recommendations were received from inmate committees and an individual that the list of circumstances that would exempt CSC from providing inmates with their entitlements for a minimum of four hours out of cell and a minimum of two hours of meaningful human contact each day must be strictly limited. Accordingly, the list of prescribed circumstances is not open-ended. In addition, under the Act, the only reason CSC can exercise any of the prescribed exemptions will be for what is reasonably required for security purposes.

It was suggested that decisions related to Indigenous offenders being transferred to an SIU take into consideration Indigenous factors. While this is already addressed in the Act’s requirement that CSC consider the systemic and background factors unique to Indigenous offenders in all decision-making, an amendment was made to the Regulations based on this stakeholder’s feedback to ensure that the IEDM also takes into consideration these factors in their determinations.

The consultation paper outlined proposed regulatory amendments to clarify roles, responsibilities, rules and procedures surrounding the use of restraints by CSC to manage an inmate’s imminent risk of harming themselves, including a requirement that an inmate subject to restraint be seen by a registered health care professional within 24 hours and that any use of restraint exceeding 24 hours be subject to review by an IEDM. Several stakeholders provided recommendations, opinions and feedback on this topic, including that the decision to impose restraints should be entirely independent of CSC. In response to this feedback, it has been determined that more consultations on the changes proposed during the consultation period that related to the use of restraints are needed before the Regulations are amended.

Prepublication

While stakeholders were given the opportunity to participate in the regulatory development process prior to their implementation, the amendments were not prepublished in the Canada Gazette, Part I, for further comment. This was to ensure that the amendments could be implemented as soon as possible after Bill C-83 received royal assent given the court-imposed deadlines in the constitutional challenges.

Modern treaty obligations and Indigenous engagement and consultation

No impacts have been identified in respect of the Government’s obligations in relation to Indigenous rights protected by section 35 of the Constitution Act, 1982. The Government’s modern treaty obligations were also considered; no impacts have been identified. Organizations representing Indigenous groups, including the National Aboriginal Advisory Committee, were consulted and provided feedback on this regulatory proposal (specifically, the Native Women’s Association of Canada and the Ontario Federation of Indigenous Friendship Centres). These amendments are expected to have a positive impact on Indigenous offenders. For example, they will support Indigenous offenders by extending the obligation for CSC to consider the systemic and background factors unique to Indigenous offenders when making decisions under the Act to decisions made by the IEDM.

Instrument choice

The CCRR support implementation of the Act and have been in place since 1992 and have been amended from time to time as the operating environment has evolved. As a result of the amendments made to the Act under Bill C-83, consequential regulatory amendments are needed to update the regime accordingly to ensure its proper functioning. No other instrument choice was available.

Regulatory analysis

Costs and benefits

These amendments support the operationalization of the portions of Bill C-83 related to the establishment of SIUs; the admission, transfer and discharge of inmates from health care units; the grievance process related to decisions on inmate health care; and the roles and responsibilities of IEDMs. These changes are beneficial to federal inmates because they enhance procedural fairness (e.g. by ensuring that inmates have an opportunity to make written or in-person representations before decisions on whether they should remain in a SIU).

There are significant costs associated with implementation of Bill C-83. The Government of Canada committed $448 million over six years (fiscal years 2018–2019 to 2023–2024), and $146 million annually ongoing, to support the transforming federal corrections initiative. Of these amounts, $297.3 million and $71.7 million annually ongoing will be directed at implementing the new SIU approach and $150.3 million and $74.3 million ongoing will be directed at the implementation of mental health care improvements within federal correctional institutions. The primary costs associated with Bill C-83 stem from hiring new staff.

The regulatory amendments serve to operationalize parts of Bill C-83; the incremental costs for the Government of Canada associated with the implementation of the regulatory amendments are assumed to be low (i.e. less than $1 million per year) and will be absorbed from within this investment. The following assumptions were made in determining that the costs associated with these regulatory amendments are not significant:

Small business lens

The small business lens does not apply, as these amendments would not result in new costs for businesses, including small businesses.

“One-for-One” Rule

The “One-for-One” Rule does not apply, as these amendments would not result in an incremental change in the level of administrative burden imposed on businesses. The regulatory amendments only impact CSC employees or persons contracted to undertake work for the CSC (e.g. the CSC currently employs 38 psychiatrists in its institutions through contracts). The amendments create new compliance obligations for health care professionals working for CSC (e.g. if a health services official determines that the inmate should or should not be admitted to a health care unit, they will provide their decision in writing, with reasons, to the inmate), including those contracted to undertake work for the CSC. However, fulfillment of these obligations is a central function of the work these individuals are employed to undertake for CSC and does not constitute an administrative burden under the “One-for-One” Rule.

Regulatory cooperation and alignment

These amendments do not have a regulatory cooperation or alignment component.

Strategic environmental assessment

In accordance with The Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that these amendments would not result in positive or negative environmental impacts; therefore, a strategic environmental assessment was not required.

Gender-based analysis plus

A gender-based analysis plus (GBA+) was conducted for the legislative amendments made under Bill C-83. Given that the changes to the Act and the Regulations are inextricably linked, a separate standalone GBA+ was not conducted in respect of these regulatory amendments. To the extent that the amendments to the Regulations will support the operationalization of SIUs and health care units, they will have a positive impact on the inmate population; specifically, federally sentenced women, men, Indigenous and black offenders.

SIUs

Bill C-83 eliminates the use of administrative and disciplinary segregation and implements a new approach to managing inmates in federal correctional institutions who pose a security risk or who cannot otherwise be managed within the mainstream inmate population. SIUs will ensure that CSC can properly separate inmates as necessary for safety and security reasons, while still providing them with ongoing meaningful human contact and the interventions, programs and social supports which their circumstances require.

The regulatory amendments ensure that there are procedural safeguards in place to protect the rights of inmates in a SIU. Specifically, they will codify an inmate’s right to counsel and to participate in reviews of their SIU confinement, lay out the procedures to be followed by a decision maker when conducting a review, and enshrine the manner in which a staff member would refer an inmate’s case to health care if they believe that the SIU is having detrimental impacts on their health.

To the extent that federally sentenced men make up 98% of the segregated population and spend, on average, more time in segregation once admitted than federally sentenced women, they will see the greatest positive impact of these changes. Indigenous inmates and federally sentenced Black inmates are overrepresented in correctional institutions and disproportionately spend more time in segregation; therefore, these groups are expected to benefit the most from the SIU framework.

The positive impact derived from SIUs is also applicable to federally sentenced women, especially those with mental health needs. While women are less likely to have a history of segregation, and spend on average, less time in segregation than other sub-populations, they have disproportionately high rates of mental health needs. The SIU framework was designed to ensure that there is ongoing monitoring of the health of inmates in a SIU to help prevent inmates’ mental health from being compromised by their confinement in a SIU. These regulatory amendments will support this objective by outlining the procedures to be taken when it appears that confinement in a SIU is having detrimental effects on the health of an inmate.

In recognition of the differences in the profile of incarcerated male and female inmates, CSC has developed a model unique to its women’s facilities. In addition to a SIU, which will operate the same as in men’s facilities, women’s facilities will also include Enhanced Support Houses (ESH). ESHs will provide additional interventions to women in the mainstream inmate population who present with individualized needs. CSC anticipates that the benefits of ESHs will be two-pronged — a reduction in the need to reclassify women from medium to maximum security as they will receive additional support in these living units, as well as a reduction in the need to transfer women to the SIUs altogether.

Health care units

Bill C-83 formalizes procedures related to the admission and discharge to health care units, which provide for an appropriate living environment to facilitate an inmate’s access to health care. These include Regional Treatment Centres (RTC) and health care units within mainstream institutions, which provide a therapeutic environment for inmates who are unable to cope in regular institutional settings, but whose mental health problems are not so severe as to require care in an RTC. The legislative amendments will positively impact vulnerable inmates who have mental health care needs that cannot be met through primary mental health care services. These positive impacts are expected to affect both federally sentenced women and men, but are particularly beneficial for socio-economic groups overrepresented in federal corrections institutions. These regulatory amendments will support the operationalization of health care units by outlining the admission and discharge process for health care units and ensuring that procedural fairness is afforded to inmates who are subject to an admission or discharge decision.

Implementation, compliance and enforcement, and service standards

Implementation

These regulatory amendments will come into force on November 30, 2019, at the same time as certain Bill C-83 provisions that eliminate the use of administrative and disciplinary segregation and introduce SIUs to manage inmates who cannot be maintained in the mainstream inmate population. To facilitate the staffing requirements for this initiative, CSC increased its recruitment efforts in 2018–2019 to recruit staff from all necessary disciplines (e.g. health care staff, mental health specialists, programs officers, parole officers and corrections officers).

A phased approach to implementation of SIUs will be taken, starting with ten men’s institutions and all five women’s institutions in 2019–2020. The men’s sites were selected based on a number of factors including: inmate population trends, geography (i.e. proximity to other institutions), current infrastructure, consultation with regional and institutional staff, availability of additional services (e.g. intermediate health care, therapeutic ranges), court rulings and annual funding available for the initiative. In the first year of implementation, CSC will assess whether there is a requirement to implement additional SIUs across the country. This assessment will take into consideration the numbers of inmates that can be accommodated while ensuring that all inmates are able to partake in a minimum four hours out of their cell on a daily basis. It is anticipated that the implementation of SIUs will be completed by 2020–2021.

Compliance and enforcement

Given that SIUs are a new, transformative initiative, CSC will monitor SIU implementation and operations on an ongoing basis to determine whether adjustments to plans are needed. CSC will also monitor functionality of the model to ensure compliance with the legislative and regulatory requirements.

To support the implementation of SIUs, the Minister of Public Safety and Emergency Preparedness is establishing an advisory panel to monitor the progress of SIU implementation to ensure greater transparency, assess whether they are being implemented as intended, and identify any challenges or concerns along the way. The Structured Intervention Unit Implementation Advisory Panel will provide non-binding recommendations and advice to the Commissioner of CSC and report to the Minister, as required. Panel members will serve for a term of one year, with the possibility of renewal.

Contact

Lyndon Murdock
Director
Corrections and Criminal Justice Division
Public Safety Canada
340 Laurier Avenue West
Ottawa, Ontario 
K1A 0P8
Email: ps.correctionspolicy-politiquecorrectionnelles.sp@canada.ca