Regulations Amending the Corrections and Conditional Release Regulations: SOR/2024-181

Canada Gazette, Part II, Volume 158, Number 21

Registration
SOR/2024-181 September 20, 2024

CORRECTIONS AND CONDITIONAL RELEASE ACT

P.C. 2024-1021 September 20, 2024

Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, makes the annexed Regulations Amending the Corrections and Conditional Release Regulations under sections 46footnote a, 48.1footnote b, 60.1footnote c, 64.1footnote d and 96footnote e of the Corrections and Conditional Release Act footnote f.

Regulations Amending the Corrections and Conditional Release Regulations

1 The Corrections and Conditional Release Regulations footnote 1 are amended by adding the following after section 46:

46.1 (1) The following definitions apply in this Part.

body scanner,
for the purposes of section 46 of the Act and subsection 48(2) of the Act, means a security screening device that is capable of detecting contraband that is in or on a clothed person and includes a device that can produce detailed images of the insides of a person’s body. (détecteur à balayage corporel)
detailed body scan search
means a body scan search conducted by a body scanner in a manner that does produce detailed images of the insides of a person’s body that is the subject of the search for a staff member to review. (fouille par balayage corporel détaillée)
dry cell
means a cell without plumbing fixtures. (cellule nue)
non-detailed body scan search
means a body scan search conducted by a body scanner in a manner that does not produce detailed images of the insides of a person’s body that is the subject of the search. (fouille par balayage corporel non-détaillée)

(2) A body scan search — detailed or non-detailed — conducted in order to detect the presence of contraband shall be carried out in accordance with the Commissioner’s Directives by a staff member trained in the use of the body scanner.

(3) Prior to performing a body scan search, the Service shall make available to any person who is to be the subject of the search all relevant health and safety information about the body scanner.

(4) The results of a detailed body scan search on an inmate who is detained in a dry cell under section 51 of the Act shall be provided to the institutional head as soon as practicable.

2 Section 50 of the Regulations is replaced by the following:

50 The power of the institutional head to authorize strip searches of inmates under paragraph 49(3)(b) of the Act or, if applicable, detailed body scan searches, may be exercised by a staff member who is in a more senior position than the staff member referred to in subsection 49(3) of the Act.

50.1 A staff member may conduct a non-detailed body scan search of an inmate in the same circumstances that they may conduct the following searches:

50.2 A staff member may conduct a detailed body scan search of an inmate

50.3 A staff member shall conduct a detailed body scan search of an inmate who is detained in a dry cell under section 51 of the Act at the request of the inmate if the body scanner is in the penitentiary, is in proper working order and the inmate has not been subjected to such a search within the 24-hour period preceding the request.

3 The Regulations are amended by adding the following after section 53:

Dry Cell Detention

53.1 (1) If a body scanner is in the penitentiary and is in proper working order and a detailed body scan search can be conducted, the institutional head shall not authorize the detention of an inmate in a dry cell under section 51 of the Act unless the inmate has been the subject of such a search and the results of the search indicate that there are reasonable grounds to believe that the inmate has ingested contraband or is carrying contraband in their rectum.

(2) If the inmate is the subject of a new detailed body scan search, the institutional head shall not authorize continuing the detention of the inmate in a dry cell unless the results of the search indicate that there are reasonable grounds to believe that the inmate has ingested contraband or is carrying contraband in their rectum.

53.2 (1) Subject to subsection (2), the institutional head may authorize in writing the continuation of the detention of an inmate in a dry cell beyond a period of 72 hours for a maximum of two additional 24-hour periods, on the expectation that the contraband will be expelled, if the institutional head is satisfied that there are reasonable grounds to believe that the inmate

(2) If a body scanner is in the penitentiary and is in proper working order and a detailed body scan search can be conducted, the institutional head shall not authorize continuing the detention of an inmate in a dry cell unless the inmate has been the subject of a new body scan search and the results of the search indicate that there are reasonable grounds to believe that the inmate has ingested contraband or is carrying contraband in their rectum.

53.3 The institutional head shall give written reasons to an inmate, as soon as practicable, with respect to any authorization as to their detention in a dry cell or a continuation of that detention.

53.4 (1) The Service shall ensure that measures are taken to provide for the ongoing monitoring of the physical and mental health of an inmate detained in a dry cell.

(2) A staff member or person engaged by the Service who believes that the detention of an inmate in a dry cell is having a detrimental impact on the inmate’s physical or mental health shall refer the inmate’s case to a registered health care professional employed or engaged by the Service, including for any of the following reasons:

53.5 An inmate shall be released from detention in a dry cell on the occurrence of the earliest of the following events:

53.6 The Service shall set out procedures for the collection, compilation, management and analysis of data with respect to the use of dry cells, including the information set out in subsection 58.1(3), in order to identify trends in that data.

4 Subsection 54(2) of the Regulations is replaced by the following:

(2) If a visitor refuses to undergo a search referred to in subsection (1) or section 54.1, the institutional head or a staff member designated by the institutional head may

54.1 (1) A staff member may conduct a non-detailed body scan search of a visitor in the same circumstances as a staff member may conduct a routine non-intrusive search or a routine frisk search of a visitor under subsection 54(1) of these Regulations or a frisk search of a visitor under subsection 60(1) of the Act.

(2) A staff member may conduct a detailed body scan search of a visitor in the same circumstances as a staff member may conduct a strip search of a visitor under subsection 60(2) of the Act.

5 The Regulations are amended by adding the following after section 56:

56.1 (1) A staff member may conduct a non-detailed body scan search of another staff member in the same circumstances as a staff member may conduct a routine non-intrusive search or a routine frisk search of another staff member under section 56 of these Regulations or a frisk search of another staff member under subsection 64(1) of the Act.

(2) A staff member may conduct a detailed body scan search of another staff member in the same circumstances as a staff member may conduct a strip search of another staff member under subsection 64(1) of the Act.

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

(2) Subsection 58(1) of the Regulations are amended by adding the following after paragraph (c):

(3) Subsection 58(3) of the Regulations is replaced by the following:

(3) Every institutional head who authorizes a search of an inmate under paragraph 50.2(c) of these Regulations or 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.

(4) Subsections 58(5) and (6) of the Regulations are repealed.

7 The Regulations are amended by adding the following after section 58:

58.1 (1) The institutional head shall immediately submit a written report on the use of a dry cell to the staff member at regional headquarters who is designated by name or position for that purpose in Commissioner’s Directives if

(2) The institutional head shall immediately submit a written report on the use of a dry cell to the responsible staff member at regional headquarters and the staff member at national headquarters who are designated by name or position for that purpose in Commissioner’s Directives when an inmate

(3) Every report on the use of a dry cell submitted by the institutional head under subsection (1) or (2) must contain the following:

Coming into Force

8 These Regulations come into force on the day on which section 12 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.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: The Corrections and Conditional Release Act (CCRA) was amended in 2019 to authorize the Correctional Service of Canada (CSC) to use body scanner technology to prevent the entry of contraband into federal correctional institutions. Amendments to the Corrections and Conditional Release Regulations (CCRR) are required to operationalize those legislative amendments and implement body scanners in federal institutions. A framework surrounding the corresponding use of dry cell detention as a key tool for the seizure of contraband must also be added to the CCRR to further advance the humane treatment of those in custody, while continuing to support the security and safety of individuals in the institution.

Description: The Regulations Amending the Corrections and Conditional Release Regulations (the amendments) enable the CSC to implement body scanner technology by prescribing the type, manner and circumstances of their use. In addition, these amendments introduce a framework regarding the use of dry cell detention, specifying admission criteria, duration limits and oversight, while also ensuring the consideration of health care needs.

Rationale: The introduction of body scanner technology to the CSC’s available search tools provides an efficient method to detect contraband that is located on the individual’s body or inside a person’s digestive tract or body cavity, depending on the body scanner device used. The use of body scan search technology is also considerate of inmate, staff and visitor gender considerations and of individuals with a history of abuse or trauma, and may address any issues related to gender, religious or cultural needs. Body scanners also support the new structure and oversight for dry cell use, which is projected to reduce the time spent in dry cells. Additionally, the amendments institute additional procedures to monitor the health of an inmate in a dry cell and increase transparency through the introduction of procedures surrounding dry cell data.

Issues

In 2019, An Act to amend the Corrections and Conditional Release Act and another Act, hereafter referred to as former Bill C-83, created a skeleton framework for the use of body scan search technology to be used to prevent the introduction of illegal substances into federal correctional institutions.

The legislative framework relies on the development and implementation of regulations, via amendments to the Corrections and Conditional Release Regulations (CCRR), which define the types of body scanners to be used, the manner in which the body scanners are used and the circumstances under which a body scan can be conducted. The regulatory provisions create the necessary framework before the legislative amendments related to body scanners can be brought into force and body scanners can begin to be implemented in federal institutions.

In addition, the regulatory provisions introduce changes to dry cell detention. A dry cell is a cell without conventional plumbing fixtures that allows for close monitoring of the individual to ensure both their safety and the safety of the institution as a whole, while awaiting the expulsion of contraband. Senators and stakeholders have raised concerns regarding the Correctional Service of Canada’s (CSC) use of dry cells, specifically regarding the criteria for admission to a dry cell, the duration a person may spend in a dry cell and the need for specific consideration of health, in particular mental health, of the impacted person. The regulatory amendments improve the humane treatment of those in custody who may be subject to the use of dry cells, as discussed during the Senate’s review of the Budget Implementation Act, 2022, No. 1 in the spring of 2022.

The regulatory amendments also enhance safeguards surrounding the dry cell regime, including through the use of body scan searches as part of the dry cell decision-making process, while supporting their continued use as a necessary measure for institutional safety and security in circumstances where there is a real risk of the introduction of contraband.

Background

Current CSC searches

Currently, the CSC has various tools and resources to search inmates, staff and visitors, including the following:

These search methods are used to detect and identify potential contraband entering federal institutions and are conducted in circumstances where there is a possibility that an inmate could have acquired and concealed contraband. Contraband includes a variety of items, including alcohol, drugs, weapons, explosives, unauthorized amounts of currency, or any item that could jeopardize the security of a penitentiary or the safety of persons. Examples of circumstances that could lead to contraband entering federal institutions include, but are not restricted to, leaving or entering an institution, leaving or entering a work or program area in the institution, and leaving or entering the visiting area of the institution. Although these methods are very effective in detecting contraband on a person, they do not address the risk associated with individuals attempting to introduce contraband hidden inside a body cavity.

Body scan searches

In an effort to address ongoing concerns and criticisms regarding federal correctional services and implement progressive measures, the Government of Canada introduced former Bill C-83 on October 16, 2018. Among other changes, this bill allowed the CSC to use additional search tools to support both the safe searching of inmates and the CSC’s seizure of contraband, with the aim of reducing the presence of contraband in the CSC facilities.

Following the passing of former Bill C-83 in 2019, the CSC initiated discussions with provincial and international correctional authorities that use body scanning technology. These discussions aimed to begin developing the CSC approach on prescribing the use of such technology based on best practices. Additionally, in the summer of 2022, the CSC began a pilot program to test body scanners in federal institutions to fully assess their operating requirements and benefits. Two low-dose X-ray body scanners were procured and installed at Bath Institution, in Ontario, and Edmonton Institution for Women, in Alberta, respectively. This initiative aimed to evaluate the efficacy of searching via body scanners and to build on the consultation knowledge base to support their effective implementation in the federal setting. In these pilots, the use of body scanners as an alternative means of searching inmates is done on a voluntary basis.

Dry cell regime

Following a search that finds contraband or creates reasonable grounds to believe that an individual is carrying contraband on their person or in a body cavity, the CSC begins the process of seizing the contraband to address risks to the individual or the dangerous introduction of contraband into the institution. While voluntary surrender of contraband is preferential following a search, alternative measures must be available to facilitate seizure where voluntary surrender is not obtained. In such cases, the CSC staff refer to a risk-based, person-centred intervention model to articulate expectations, impacts and consequences of involvement in the introduction of contraband. Once all discussions and verbal strategies are exhausted, the CSC will consider using the dry cell as a means to seize the contraband to keep the institution safe.

As outlined in section 51 of the Corrections and Conditional Release Act (CCRA), where an IH is satisfied that there are reasonable grounds to believe that an inmate has ingested contraband or is carrying contraband in their rectum, they may authorize that the inmate be detained in a dry cell to facilitate the seizure of the contraband. Once an inmate is detained in a dry cell, a staff member is assigned to supervise the inmate 24 hours a day, 7 days a week, while they are in the cell, until they produce the contraband or the decision is made to release the inmate. In the current practice, the inmate is released from the dry cell for three reasons: the inmate is displaying health concerns that warrant their release from the dry cell; the reasonable grounds under which the inmate was detained in a dry cell have dissipated; or the contraband has been seized. This practice, although crucial to ensure the security and safety of individuals in the institution, has received criticism for its lack of oversight, structure, as well as for the conditions of confinement.

Former Bill C-83 amended section 51 of the CCRA regarding search procedures when the IH has reasonable grounds to believe that an inmate has ingested or is concealing contraband in a body cavity, with dry cell detention facilitating seizure. A new subsection, subsection 51(2), was added to the CCRA to provide that the inmate shall be visited by a registered health care professional at least once a day. Former Bill C-83 also removed the option of using X-rays, leaving only the possibility of confining the inmate in a dry cell with the expectation that the contraband will be expelled. The use of medical X-rays for contraband detection had historically posed challenges for the CSC, as many physicians would not consent to this practice based on the fact that it was being used for reasons other than medically related diagnostic imaging, even with full consent from the inmate that would be subject to the X-ray. The remaining changes from former Bill C-83 that were not in force, being the changes regarding the use of medical X-rays and amendments to support the use of body scanners, are set to come into force on October 1, 2024, in alignment with the CCRR amendments.

On November 12, 2021, the Supreme Court of Nova Scotia held, in Adams v. Nova Institution, 2021 NSSC 313, that then paragraph 51(b) of the CCRA, which referred to carrying contraband in any body cavity, violated section 15 of the Canadian Charter of Rights and Freedoms (the Charter), as it discriminated against inmates who are believed to be carrying contraband in their vagina. As contraband in the vagina is not expelled in the same manner or at the same pace as contraband in the digestive tract, this leads to the potential for inmates with vaginas to be subject to a longer dry cell detention, well beyond the duration faced by inmates who may have ingested contraband or concealed it in their rectum.

Accordingly, the Court found this use of dry cells to be unconstitutional, declaring paragraph 51(b) to be of no force and effect in Nova Scotia, unless Parliament amended the legislation to address the issue. The Court provided a six-month timeline for these changes to be made. Following a requested extension to refine the details of the policy, the Budget Implementation Act, 2022, No. 1 amended the CCRA to address the concerns in Adams v. Nova Institution and eliminated the detention in dry cells of inmates suspected of carrying contraband in their vaginas. In addition, the Budget Implementation Act, 2022, No. 1 amended the CCRA, introducing subsection 51(2), which requires that any inmate in a dry cell be visited at least once per day by a registered health care professional. While this provision was also included in former Bill C-83, it was expedited to ensure more robust medical oversight in the interim instead of waiting until the same change in former Bill C-83 was ready to come into force. These amendments, which came into force on June 23, 2022, ensure that the use of dry cells is compliant with the Charter, while preserving dry cells as an important tool to support institutional security. Dry cells are a significant component of the approaches and tools employed by the CSC to prevent the entry of contraband into institutions. While other search measures allow for the detection and identification of potential contraband on an inmate or in a body cavity, unless the contraband is voluntarily surrendered, dry cell detention may be the only means to ensure seizure.

During the 2022 budgetary process, concerns regarding the dry cell regime were discussed by the Senate Committee on National Security and Defence (SECD or the Senate Committee) while examining the above-referenced Budget Implementation Act, 2022, No. 1 amendments to the dry cell practice. Specifically, Senate considerations about the use of dry cells raised concerns regarding criteria for admission to a dry cell, the duration that an individual may spend in a dry cell and the need for specific consideration of health, in particular mental health, of the impacted individual. As a result of these concerns, the former Minister of Public Safety committed to issuing a ministerial direction to the CSC regarding the use of dry cells intended to ensure that the CSC uses the least restrictive measures consistent with the protection of society, staff members and offenders. To that end, the Ministerial Direction to the Correctional Service of Canada: Use of dry cells (the Ministerial Direction) published on August 29, 2022, introduced principles that solidified the CSC internal practices regarding the care and oversight of those detained in dry cells. The Ministerial Direction includes the expectation that the CSC would specify the circumstances under which dry cells would be used, establish duration guidelines, prioritize least restrictive measures and pursue the ongoing improvement of search and seizure activities. In addition, the Ministerial Direction reaffirmed procedural safeguards already in place, including daily reviews at regular intervals when dry cell detention surpasses 48 hours. For context, from February 1, 2023, to February 1, 2024, there were 160 confirmed dry cell placements across the CSC, of which 37 surpassed 48 hours.

Supported by the forthcoming implementation of body scan technology, the former Minister of Public Safety also made a commitment to enact regulatory amendments to the CCRR in order to enhance oversight and create a transparent framework surrounding dry cell detention. Together, the search and seizure improvements offered by body scan technology and regulatory dry cell constraints strike an improved balance between humane custody and the safety and security of the institution.

Objective

The regulatory amendments enhance search and seizure tools used by the CSC within Canada’s federal institutions. Specifically, they allow for the implementation of body scanner technologies, as authorized by former Bill C-83, by detailing the types of body scanners to be used, the manner in which they can be used and the circumstances in which the CSC has the authority to use them. Adding this technology to the tools already used by the CSC further supports the detection of contraband and unauthorized items, increasing the safety and security of institutions, including inmates, staff, visitors and the community.

The introduction of a regulatory framework regarding the use of dry cells supports their continued use as a necessary seizure tool, while ensuring that dry cells are used only in narrow and justifiable circumstances, supported by the implementation of body scan technology. The framework strikes a careful balance between the importance of safety and security of the individual and the institution, which calls for the management of the risk posed by contraband, and the principle that the CSC relies on the least restrictive measures possible consistent with the protection of society, staff members and offenders. The amendments advance positive change for those incarcerated in federal institutions by helping to determine whether contraband is present and whether the use of dry cells is necessary, limiting the duration of dry cell detention, and enhancing the monitoring of the physical and mental health of those detained in dry cells. This new regulatory oversight also prescribes the collection and management of dry cell-related data, expanding data availability and ensuring the regime can be monitored, analyzed and evaluated as needed.

Description

General overview of body scan searches

The amendments allow the CSC to use body scanner technology that can reveal items such as, but not limited to, metal, plastic, organic and inorganic items concealed in clothing, on the body or inside the body of the individual being scanned. Body scan searches support the CSC existing methods of conducting searches, including strip searches, which are visual inspections of the naked body and a search of any clothing or carried items; non-intrusive searches of clothed persons using search technologies, such as metal detectors; and manual frisk searches of the clothed body.

Prescribed body scanner

The amendments define a prescribed body scanner as a machine capable of detecting contraband that is in or on a clothed person and that can produce detailed images of the inside of a person’s body. A body scanner must be in proper working order to be considered for a search. For example, if the machine cannot turn on, cannot produce images as intended, or if issues are present when adjusting the microsievert levels (radiation dose), the body scanner cannot be used to search the inmate, staff or visitor.

Prescribed manner of a body scan search

For all body scan searches, a trained staff member is required to carry out a body scan search of a compliant inmate, staff member or visitor, ensuring they are in compliance with the machine’s operating requirements and are following the guidance of Health Canada’s health and safety standards for using body scanner technology (e.g. not scanning individuals with health concerns and limiting the number of scans on an individual per year). These requirements are set out in the Commissioner’s Directives, which are rules made under the authority of the Commissioner under sections 97 and 98 of the CCRA. Updates to the Commissioner’s Directives have been made to incorporate any new health and safety standards developed, as well as to take into account updated technology as it relates to body scanner technology. All Commissioner’s Directives are accessible to offenders, staff members and the public.

A person is asked to remain in the scanner device while being scanned. They may be required to undergo subsequent scans if the operator is unable to satisfactorily complete the scan or if an operator believes, on reasonable grounds, following a review of the image generated by the scanner, that the individual is concealing items. If the person does not comply with the body scan search (e.g. they refuse to follow the instructions for the scan or refuse to enter the scanner), the CSC staff cannot conduct the scan and must resort to another search method, such as a strip search or a frisk search. Other search methods are also required when a body scanner is not in working order or is not in the institution.

A trained staff member carries out a body scan search in two distinct manners: a non-detailed body scan search or a detailed body scan search, which are both described below.

Non-detailed body scan search

A non-detailed body scan search, which could be conducted when a frisk or non-intrusive search would otherwise be authorized, is a body scan search during which the trained staff member reviews the image generated by the scanner to determine the presence of contraband. For example, a CSC staff member may conduct a frisk search and body scan search of an offender following a visit with a family member. The image produced in these instances is a human silhouette (generated by artificial intelligence) on which an area is highlighted if a foreign object is detected on the surface of or inside the person’s body. For example, if an inmate were to be scanned with contraband in their sleeve, the body scanner would produce an image of a silhouette whose arm is highlighted. A trained staff member of any sex can conduct these scans, as no sensitive or revealing information about the person’s body is produced in the image result.

The specific circumstances under which a non-detailed body scan search can be used are listed below.

Inmates may be subject to searches by means of a non-detailed body scan where

Visitors may be subject to searches by means of a non-detailed body scan when entering or leaving an institution or a secure area.

Staff may be subject to searches by means of a non-detailed body scan when entering or leaving the institution or a secure area.

Staff have the option of using a non-detailed body scan, among other search methods, for all non-intrusive searches for inmates, visitors and other staff. If a visitor refuses to undergo a search, the IH or designated staff member may prohibit a contact visit with an inmate and authorize a non-contact visit, which is a visit conducted behind a glass or some other form of physical barrier separating the visitor and the inmate, where direct contact is not possible. Alternatively, the IH can deny the visit and require the visitor to leave the institution immediately.

Detailed body scan search

A detailed body scan search, which could be conducted when a strip search would otherwise be authorized or a dry cell decision is required, allows a trained staff member to review the image generated by the scanner to determine the presence of contraband. For example, the CSC staff members may conduct a strip search or body scan of an inmate who was seen picking up and concealing an unknown package in the recreational yard. The image produced in these instances is a detailed image of the inside of the person’s body (similar to the result of an X-ray scan) that the trained staff member reviews to detect contraband. For example, if an inmate were to be scanned with contraband in their digestive system, the trained staff member would be able to identify the contraband in the detailed image generated by the scanner. The Commissioner’s Directives specify that the trained staff member conducting a detailed body scan search must be of the same sex as the inmate, or in compliance with the inmate’s gender considerations, given the sensitivity of the additional information revealed by these scans.

The specific circumstances under which detailed body scan searches can be used are listed below.

Inmates may be subject to searches by means of a detailed body scan where

As provided in subsection 48(2) of the CCRA, a detailed body scan search shall be conducted where a routine strip search would otherwise occur during the course of the person’s incarceration. As a result, staff must conduct a detailed body scan search if a scanner is in proper working order in the institution. This is done under criteria (a), (b), (c) and (d), which are listed above, and refer to situations where a routine strip search would occur. However, staff have the option of conducting a detailed body scan using a body scanner when a strip search is non-routine, as outlined in criteria (g) and (h). Criteria (e) and (f) also require a body scan search as part of the dry cell decision-making changes, which are further described in the following section.

Visitors may be subject to searches by means of a detailed body scan when a staff member suspects on reasonable grounds that a visitor is carrying contraband and believes that a body scan search is necessary to find the contraband.

If a visitor refuses to undergo a search, the IH or designated staff member may prohibit a contact visit with an inmate and authorize a non-contact visit, which is a visit conducted behind a glass or some other form of physical barrier separating the visitor and the inmate, where direct contact is not possible. Alternatively, the IH can deny the visit and require the visitor to leave the institution immediately.

Staff may be subject to searches by means of a detailed body scan when a staff member believes on reasonable grounds that another staff member is carrying contraband and that a body scan search is necessary to find the contraband. However, in practice, the CSC typically works with law enforcement, such as the Royal Canadian Mounted Police (RCMP), to deal with instances in which staff are suspected of carrying contraband.

The circumstances in which offenders, visitors and staff would be body scanned were selected, as these are the most common and most vulnerable situations in which contraband and unauthorized items are introduced into the institution. They reflect the current circumstances in which other searches, such as strip searches and frisk searches, would be authorized. For example, inmates entering and leaving the institution, whether under constant supervision by staff or not, represent opportunities for inmates to transport contraband as they may come into contact with other persons, places or things. It should be noted that body scanners do not eliminate the need for strip searches. These will continue to be relied upon in the absence of an available, working body scanner, or if health concerns or inmate compliance limit the CSC’s ability to conduct a body scan, for example.

Dry cell detention

When contraband has been ingested or concealed in an individual’s rectum, dry cells are a key tool available to the CSC to facilitate the seizure of that contraband and prevent its entry or circulation within the institution, in the event that it is not voluntarily surrendered. In accordance with the CCRA, the IH may authorize an inmate’s detention in a dry cell based on reasonable grounds to believe that the inmate has ingested contraband or is carrying it in their rectum.

The amendments introduce new provisions outlining the use of dry cell detention by the CSC, including how the implementation of body scan technology assists the IH in determining whether there are reasonable grounds to believe that an inmate has ingested or is carrying contraband in their rectum.

In deciding whether to authorize an inmate’s detention in a dry cell, the IH relies on the results of a body scan search where a body scan search could be lawfully carried out (e.g. when there are no inmate health concerns, the inmate is compliant, and a body scanner is both in proper working order and available in the institution). In authorizing the initial use of a dry cell, the IH prepares written reasons outlining the facts that led the IH to form reasonable grounds to believe that the inmate has ingested contraband or is carrying it in their rectum, and that the contraband is expected to be expelled. These written reasons are then provided to the inmate.

Under the amendments, the inmate’s detention in a dry cell is required to end if the IH is no longer satisfied that there are reasonable grounds to believe that the inmate has ingested contraband or is carrying it in their rectum, or if there is no longer any expectation that the contraband will be expelled. For example, this includes situations when all contraband is believed to have been seized. It would also need to end in the event that a registered health care professional recommends that an inmate not remain in a dry cell for health reasons.

The amendments set a 72-hour maximum for detention in a dry cell. However, the IH can authorize a 24-hour extension of the inmate’s detention under specific circumstances. In such circumstances, as with the initial detention, the IH must be satisfied that there are reasonable grounds to believe that the inmate has ingested contraband or is carrying it in their rectum, and that there is an expectation that the contraband will be expelled. Further, if a body scanner in proper working order is available in the institution and a detailed body scan can be lawfully conducted, the results of that search must indicate that there are reasonable grounds to believe that the inmate has ingested contraband or is carrying it in their rectum.

Limited extension to the dry cell detention of an inmate is necessary to ensure that the contraband is successfully seized and prevented from entering the general inmate population. To justify the authorization of detention beyond 72 hours, and in addition to needing to be satisfied that the criteria for initial detention still exist, the IH must also have reasonable grounds to believe that

When the 24-hour extension lapses, the IH may authorize one additional 24-hour extension based on an evaluation of the same factors. This means dry cell detention may reach a total of 120 hours in these circumstances.

If the IH authorizes an extension on dry cell detention beyond the initial 72-hour detention, as described above, their written reasons must include their consideration of the additional factors (i.e. avoiding expulsion, bowel movements and/or re-ingestion or re-concealment).

While an inmate is placed in a dry cell, the amendments require that the CSC ensures that their physical and mental health is monitored on an ongoing basis. If a staff member or person engaged by the CSC believes that the dry cell is having detrimental impacts on the inmate’s health, the inmate’s case would be referred to the CSC’s health care administration. In particular, detrimental impacts could present as self-injury, signs of a drug overdose or other signs of emotional distress.

The 72-hour maximum for initial detention in a dry cell is intended to limit its use, along with the anticipated reduction in use based on improving the search and seizure of contraband in federal correctional institutions through other means, such as body scanner technology.

Body scan and dry cell reporting

The amendments provide a reporting and oversight structure for both body scanner searches and dry cell detention. A post-search report must be prepared when a body scan is conducted while a strip search would otherwise be authorized, as already the case when these other searches are conducted. However, there are additional circumstances in which a report would be required, as it relates to dry cell decision-making. This expanded dry cell reporting structure replaces the use of standardized search reports that are currently used in the context of dry cells.

The IH must immediately submit a report to a designated staff member at their regional headquarters when

The IH must immediately submit a report to a designated staff member at both their regional headquarters and national headquarters when

Any such report prepared by the IH must include basic information about the search, such as the relevant time, date and place of the search, as required in post-search reports and as prescribed in subsection 58(4) of the CCRR. The reports must also outline the factual information supporting the IH’s belief that the inmate has ingested or is carrying contraband, including any new facts that may have changed from one report to the next. The IH must note any relevant body scan searches that may have occurred prior to or during the inmate’s dry cell detention. The report must also show consideration of the inmate’s health and a confirmation that they were provided with adequate food, water and any prescribed medications. The amendments also require the CSC to set out procedures for the collection, compilation, management and analysis of data with respect to the use of dry cells in order to identify trends.

In addition to the new reporting requirements in section 58 of the CCRR, the amendments removed subsections 58(5) and (6) of the CCRR. These provisions referred to a minimum retention period and a person’s right of access to post-search reports. The Privacy Act and its regulations already prescribe substantially the same rules as are currently in subsections 58(5) and 58(6) of the CCRR.

Regulatory development

Consultation

Prepublication in the Canada Gazette, Part I

The amendments were prepublished in the Canada Gazette, Part I (CGI), on May 6, 2023, followed by a 30-day comment period.

The Department of Public Safety and Emergency Preparedness (PS) and the CSC received 63 comments from eight stakeholders, including community stakeholders, the Office of the Correctional Investigator (OCI), the Union of Canadian Correctional Officers (UCCO), a lawyer representing a former inmate and one anonymous source. The comments included suggestions for regulatory development and/or additions to other policy tools, such as the Commissioner’s Directives. They focused on dry cell conditions, the general operations of dry cell detentions and body scan searches. No changes were made to the amendments as a result of the comment period. Some comments, as indicated below, will be addressed in guidance.

The comments received can be grouped into six general topics:

Body scanners

The authority for the CSC to conduct body scan searches was initially introduced in former Bill C-83. As a result, considerable consultation took place during the development and passage of that bill. For example, a stakeholder roundtable was held in May 2019, co-hosted by the CSC and PS, to discuss the rationale and former Bill C-83, its implications for federal correctional services and how it would be implemented. Sixteen diverse stakeholder groups were in attendance, including formerly incarcerated persons, prisoner advocacy groups, mental health organizations and employee unions. During this event, discussions were held regarding all elements of former Bill C-83, including the introduction of body scan searches. Prior to that, in Senate Committee discussions surrounding former Bill C-83, the notion of body scan technology was positively received, noting the benefits to men, women and gender-diverse people. There were no concerns raised during that time regarding the amendments; rather, the Senate Committee raised concerns if the CSC did not implement body scanners. The CSC did not receive comments or changes regarding the specifics of body scanner technology to the legislative framework during this time, as the prescription of the type, manner and circumstances to use body scanners in the CCRR would be required to fully implement this technology in federal institutions. Similarly, parliamentary discussions regarding former Bill C-83 described body scan technology as progressive, more reliable, less invasive and contributing to the safety of both staff and inmates.

The UCCO is very supportive of the introduction of body scanners to federal institutions, as it believes this tool will provide safer and easier options for its members.

The CSC has reached out to the California Department of Corrections and Rehabilitation and the Nova Scotia, Ontario and British Columbia provincial correctional services, as these organizations have introduced body scanners and associated policies. These conversations provided the CSC with abundant knowledge about potential safety and security impacts, installation, use of and training on body scanners, and questions on health and privacy. Following these conversations, it was understood that provincial correctional services share very similar policies and experiences in terms of implementation and staff and offender concerns, which the CSC noted and has used to inform its introduction of body scanners federally. The daily operations of body scanners in provincial correctional facilities predominately included the routine scanning of inmates and their personal effects, which many institutions viewed as an extremely valuable and effective search tool. Overall, the provincial jurisdictions that have utilized these machines for several years believe this tool provides advantages on many fronts by improving the detection of contraband, reducing the need for more manual searches, respecting the dignity and privacy of all persons and increasing safety for those in the institution.

Additionally, Health Canada has provided advice on which standards to follow, such as the Radiation Emitting Devices Act, the Radiation Protection Regulations and internationally recognized standards groups, like the American National Standards Institute, on which the CSC bases its policy and operations.

Dry cells

The SECD convened on May 16, 2022, to examine the amendments proposed to the CCRA by the Budget Implementation Act, 2022, No. 1. PS and CSC officials provided evidence to the SECD, as did stakeholders from the John Howard Society of Canada and the Canadian Association of Elizabeth Fry Societies (CAEFS), non-profit organizations that advocate for criminal justice improvements and prison reform in Canada. During that discussion, stakeholders and senators identified concerns regarding the duration of time spent in dry cells, the grounds justifying dry cell detention, the adequacy of health care services (in particular, mental health services) and the need for body scan technology. They also questioned CSC’s compliance with policy, as well as the adequacy of dry cell-related data being recorded and/or monitored by the CSC.

Following the SECD item, informal verbal discussions were held with the CAEFS, the John Howard Society and the Canadian Civil Liberties Association (CCLA) [a non-profit human rights organization], and their written feedback was also welcomed. Generally, such stakeholders have largely advocated for the abolition of dry cell practices as a whole. However, they have also expressed support for duration limits (including ending detention after 72 hours) and narrowed use to prevent prolonged and unnecessary stays through initiatives such as the prioritization of less restrictive options and the use of body scanners. Stakeholder submissions during the budgetary process also focused on the need to ensure that medical considerations form an integral part of deciding to use or continue dry cell detention. In addition, beginning in May 2022, consultations took place with both the OCI and Howard Sapers, Chair of the Structured Intervention Unit Implementation Advisory Panel and former Correctional Investigator, regarding dry cell changes. These additional consultations echoed Senate Committee concerns, with a focus on shortening dry cell durations (with a preference for prohibiting continuous dry cell detention beyond 72 hours), limiting the scope of their use and addressing mental health concerns for those subject to dry cell detention.

These broad discussions and recommendations directly inspired the dry cell-related amendments and led to a commitment letter sent by former Minister Mendicino to the SECD on June 10, 2022. In this letter, the former minister acknowledges that “more work needs to be done to address the use of dry cells,” as indicated by stakeholders, and notes that regulatory development is underway. The letter also notes that a Ministerial Direction would be forthcoming as an interim measure.

Minister Mendicino fulfilled this commitment by issuing a Ministerial Direction to CSC Commissioner Anne Kelly on August 29, 2022, regarding the use of dry cells. The purpose of the Ministerial Direction was to strengthen reporting requirements, oversight, and health care considerations regarding the use of dry cells to ensure that the CSC maintains safe and secure procedures surrounding dry cells, while always respecting the dignity and human rights of inmates. As published, the Ministerial Direction expressly provided that the CSC would specify the circumstances under which dry cells would be used, establish duration guidelines, prioritize the least restrictive measures available and pursue ongoing improvements to their search and seizure activities.

The OCI previously shared their views on the practice in the annual reports from 2021–2022, 2019–2020 and 2011–2012, in addition to recent informal consultations. Largely, these views have focused on the need to end continuous dry cell detention beyond 72 hours — a goal supported publicly by key stakeholders such as the CCLA and the CAEFS. Following these discussions, a major element of the regulations has aligned with their previous recommendations (i.e. dry cell time limits based on a 72-hour period). However, the possibility of two extensions was included to address security concerns and strike the right balance between ensuring that dry cell use is narrow in scope, while maintaining its use as an important tool in upholding institutional security. For context, of the 160 confirmed dry cell placements from February 1, 2023, to February 1, 2024, there have been a total of 18 placements that would have exceeded the 72-hour time limitation, with 5 of those placements that would also have exceeded the two extensions (120 hours).

Operational and Public Safety partners (Canada Border Services Agency [CBSA], the UCCO and provincial correctional agencies) were consulted informally on the changes to the CCRR, in particular regarding the time limit associated with the use of dry cells. Given their experience and the variability in the delay for the expulsion of contraband from the digestive system, these stakeholders questioned the impact of a time limit on the efficiency of dry cells and the potential for increased contraband being introduced in federal correctional institutions. The data collected from the dry cell detentions from February 1, 2023, to February 1, 2024, indicate that of all placements that would exceed the 72-hour time limit but not reach the 120-hour mark, 54% had contraband recovered (i.e. 7 out of 13 placements). Further, of the placements that would exceed the extensions (120 hours), 40% had contraband recovered (i.e. 2 out of 5 placements).

Discussions with the RCMP were also held; however, no substantive concerns or comments were made due to the differences in their equivalent practices.

Modern treaty obligations and Indigenous engagement and consultation

The CSC has determined that the introduction of body scanners and amended dry cell practices do not adversely affect potential or established Indigenous treaty rights. While marginalized groups, in particular Indigenous populations, are over-represented at all stages of the criminal justice system, the introduction of body scanners and amended dry cell practices is limited to correctional environments and does not disproportionately affect any institutional population. The CSC’s policy to address the specific needs of Indigenous offenders, Commissioner’s Directive 702 — Indigenous Offenders, as well as PS’s diversity and cultural competency training for all staff, provide direction and competency for Indigenous considerations that cover the program changes within the amendments. As a result, additional consultation with Indigenous groups, specifically, is not planned, and it was determined that the existing policies regarding Indigenous-specific services and programs will not be affected. The CSC consulted with their Indigenous Initiatives Directorate, whose responsibilities include ongoing partnerships with Indigenous organizations, and no concerns were reported regarding the amendments. Through social media and web publications, announcements were made to ensure diverse stakeholders and the general public were aware of both the publication of the Ministerial Direction and the subsequent prepublication of the amendments. As part of the development of internal guidance, Indigenous stakeholder groups were included directly in formal consultation.

Overall, the amendments are intended to promote the protection of human rights in the correctional environment.

Instrument choice

The CCRA provides the legislative authority for the CSC’s actions, which can only operate within the legislative context and boundaries of the law. Searches are legislated under the CCRA and, consequently, legislative provisions were enacted to create the necessary authority for body scan searches. These provisions refer to the requirement to prescribe in the regulations the type of body scanner, the manner of conducting a body scan search and the circumstances in which a staff member may conduct a body scan search.

Under the baseline scenario (i.e. no action), the CSC would have remained unable to implement the use of body scan technology, thereby limiting the tools available to the CSC to detect contraband and unauthorized items. Due to the changes made through former Bill C-83, the CCRA sets out the basic framework for the use of body scan technology. That skeletal framework relied on the development and implementation of regulations, via amendments to the CCRR, that define the type of body scanners to be used, the manner in which the body scanners are used, and the circumstances under which a body scan can be conducted.

The introduction of a regulatory framework serves to provide firm clarity, certainty and transparency around the use of dry cells. As outlined in the amendments, dry cell oversight is stringent. It includes features that are particularly important due to the highly restrictive nature of dry cell detention, which was previously subject to only internal policy and has been a topic of both stakeholder criticism and litigation.

Regulatory analysis

A cost-benefit analysis (CBA) was conducted to assess the incremental impacts of the amendments. The present value costs of the amendments amount to $8,780,670 compared to $99,621 in monetized benefits. Estimated costs include (a) body scanner capital and warranty costs ($7.8 million); (b) maintenance costs (approximately $370,000); (c) operational and review costs (approximately $592,000); and (d) costs to develop procedures for the collection, compilation, management and analysis of data (approximately $19,000). The amendments generate no benefits in terms of reduction in injuries or fatalities due to overdoses and other incidents. It is expected there will be cost savings to the CSC over time due to a limit on the length of dry cell detention and that inmates will spend fewer hours in dry cell detention than would be the case under the baseline conditions. The estimated benefit for this cost savings has been calculated to be $99,621. It is estimated that inmates would spend 25 156 fewer hours in dry cell detention over a 10-year period than would be the case without the amendments. The full CBA report is available upon request.

Small adjustments have been made to the CBA following the consultation period in the CGI. Additional data on dry cell detentions has allowed for a more accurate projection of the average duration in dry cells, and the incarceration rate projection has been modified after incorporating more recent, relevant data into the calculation. Specifically, the estimated number of scans and number of hours in dry cells reported in the CGI were overstated. For the Canada Gazette, Part II (CGII), as a result of more relevant and recent data collection, there has been a decrease in the variable of forecasted dry cell placements on a yearly basis (i.e. 1.4% to 1.2% of the inmate population) and a decrease in the incarceration rate variable used as a result of more pertinent data developed by the CSC (i.e. 49.80 to 36.59 per 100 000 Canadians). Therefore, the estimated number of scans has decreased, resulting in a reduction in estimated government costs from what was reported in the CGI. It has also been assessed that the number of hours spent on average by inmates in dry cell detention reported in the CGI was overstated. Therefore, these numbers have been updated, resulting in a reduction in government cost savings. This overstatement also reduces the non-monetary benefit for inmates, as the total time savings due to reduced dry cell placements has also decreased from what was originally calculated over a 10-year period (i.e. from 38 347 hours in the CGI to 25 156 hours in the CGII). Overall, the number of forecasted scans and dry cell placements has been revised down for the CGII. In doing so, total costs to the Government have decreased by $223,277. Total benefits to the Government have also fallen by $195,176. This has resulted in net costs going down from $8,709,150, as reported in the CGI, to $8,681,048 in the CGII.

Analytical framework

Costs and benefits for the 10-year period between 2024 and 2033 are expressed in constant 2023 Canadian dollars and are discounted to 2024 at a discount rate of 7%. The growth of the CSC inmate population is assumed to follow the 10-year average incarceration rate per 100 000 Canadians as of 2021–2022. This rate is then multiplied by the forecasted Canadian population, as per Statistics Canada’s projections, to calculate the prison population on which estimates of government cost savings and inmate benefits in terms of hours not spent in dry cell detention are based.

Assumptions for the analysis were based on publicly available information, CSC datasets and subject matter expertise.

Baseline scenario

In the baseline scenario, the CSC has several authorized methods for searching persons:

Although these methods are very effective in detecting and seizing contraband on a person, they do not address the risk associated with individuals attempting to introduce contraband hidden inside them. Therefore, detention in a dry cell may serve as the only option to safely seize the contraband when it is not voluntarily surrendered. The CSC does have the power to authorize body cavity searches or medical X-ray scans by medical professionals, but both options require the consent of the inmate and medical professional before they can be conducted. Many physicians would not consent to this practice based on the fact that it was being used for purposes other than for medically related purposes, even with full consent from the inmate that would be scanned.

In this same scenario, where an IH is satisfied that there are reasonable grounds to believe that an inmate has ingested contraband or is carrying contraband in their rectum, they may authorize that the inmate be detained in a dry cell to facilitate the seizure of the contraband. In the previous practice, there were no specific time limits for dry cell detention; rather, staff relied on intelligence, number of bowel movements or health staff recommendations to end detentions without seizures.

Once an inmate is detained in a dry cell, a staff member is assigned to supervise the inmate 24 hours a day, 7 days a week, while they are in the cell, until they produce the contraband or the decision is made to release the inmate. The inmate is released from the dry cell for one of the following three reasons: the inmate is displaying health concerns that warrant their release from the dry cell, the reasonable grounds under which the inmate was detained in a dry cell cease to exist, or the contraband has been seized.

Regulatory scenario

Under the regulatory scenario, searches currently used — strip search, non-intrusive search, frisk search — are still being used by correctional institutions. The amendments allow the CSC to use body scanner technology as an additional search method, which can reveal the following, but is not limited to, metal, plastic, organic and inorganic items concealed in clothing, on the body or inside the body of the individual being scanned.

The amendments concern the CSC’s authority to conduct body scan searches as an alternative to other forms of routine and non-routine searches on inmates, staff and visitors. To this end, the prescribed circumstances for body scan searches are the same under which the CSC had the authority to conduct its searches, apart from dry cell decisions and reviews. The circumstances in which compliant inmates, visitors and staff would be body scanned are the most common and most vulnerable situations in which contraband and unauthorized items are introduced into the institution. For example, inmates entering and leaving the institution, whether under constant supervision by staff or not, represent opportunities for inmates to introduce contraband and/or unauthorized items, as they may meet other persons and have access to other places or things.

The amendments set a 72-hour maximum for detention in a dry cell. However, the IH is able to authorize a 24-hour extension of the inmate’s detention in particular circumstances. In such circumstances as in the initial detention, the IH must be satisfied that there are reasonable grounds to believe that the inmate has ingested contraband or is carrying it in their rectum, and that there is an expectation that the contraband will be expelled. When the 24-hour extension lapses, the IH may, under prescribed conditions, authorize one additional 24-hour extension. This means dry cell detention may reach 120 hours (5 days) in these circumstances.

Additionally, increased reporting requirements are incorporated into the dry cell practice to ensure oversight of the decision-making from multiple levels within the department. These reports also benefit the CSC in tracking data related to the dry cell practice, which will support the reviews and improvements to the program moving forward. The amendments also require the CSC to set out procedures for the collection, compilation, management and analysis of data with respect to the use of dry cells in order to identify trends.

Costs

Purchasing costs

Purchasing costs represent the costs associated with the purchase of the body scanners and include the purchase of equipment, yearly warranty costs, as well as yearly maintenance requirements. Purchasing cost data for this amendment was informed by historical cost data obtained through the purchases made during the pilot project.

The scanner purchase price is estimated at $275,000 per unit, which covers installation costs, training requirements and minor infrastructure retrofits. There is also an additional $15,000 per year over a five-year warranty (with no cost for the first year) to be considered. The maintenance requirements are estimated to be 1.5% of the body scanner purchase cost per year following the warranty period, which encompasses the recalibration of the machines, software updates, etc. The CSC anticipates installing 33 additional body scanners over the next five years.

Operating costs

The regulatory change will result in an increase in costs associated with using the body scanners at CSC institutions on an as-needed basis. Operating cost data for this regulatory amendment was also informed by the CSC’s pilot project. As per the results of the pilot project, it is estimated that there will be an increased workload for correctional officers of 15 minutes per scan conducted as an alternative to a strip search. In addition, it has been assumed that 65% of the forecasted inmate population in a given calendar year will undergo a body scan. Where body scanners are being used for non-intrusive or frisk searches, there will be no significant difference in time spent searching compared to the existing methods used by the CSC. Therefore, no additional costs are anticipated for using body scanners as an alternative search method. The increase in the inmate population of the CSC over the next 10 years will also lead to a rise in the operating costs of the body scanners, due to the increase in the number of body scan searches conducted.

Review costs

Further, additional reporting requirements have also been included in the regulatory model as they relate to dry cells. These additional requirements will include new information, such as body scan results and facts that led to the dry cell detention extensions, which will be added to existing post-search reporting conducted by the department. The costs to staff will be accounted for in gathering this new information (e.g. body scan costs). The additional time to complete a longer report is expected to be negligible (i.e. under 5 minutes). Finally, the oversight structure will require that the IH consider the results of a body scan, if available, prior to authorizing any dry cell detentions. The costs for these additional review periods are expected to be minimal (i.e. 15 minutes per review). This additional component is exclusive to the regulatory model.

Costs to develop procedures for the collection, compilation, management and analysis of data

The amendments require procedures for the collection, compilation, management and analysis of data with respect to the use of dry cells in order to identify trends in that data. Under the current baseline, following certain searches, such as non-routine strip searches, the CSC compiles a report that includes, but is not limited to, the reasons for the search, the items seized (if any), the manner in which the search was conducted, as well as the facts that led to the belief that there was the presence of contraband. The regulatory model will build on these requirements for dry cells specifically, adding elements such as the expectation of the IH that the contraband will be expelled during the dry cell placement, the results of the body scan searches (when applicable) and the inmate’s state of health and health care needs. In practice, the correctional officer will gather this additional information during the dry cell placement, whereas the IH will use this information to develop the report. As is the case with the body scan reviews, the collection and reporting of these additional data points is expected to be minimal (i.e. 15 minutes for the collection of the information and 15 minutes for the reporting). This does not include the costs of preparing the procedures for the data collection and compilation, the training for staff on data collection and reporting, the cost of storing and managing the data to ensure the continued integrity of the database, and the cost of analyzing the data to discern trends. The estimated cost for this requirement is thus a lower bound.

Implementation costs

The implementation of the changes will likely incur some minor costs to ensure awareness of the amendments, as well as for education and training on them, including structured training, information sessions, documentation, reporting to various levels in the organization and audits of activities. These costs will be minimal, and the largest portion of these costs (training) is factored in the purchase cost of the body scanners.

Benefits

Reduction in fatalities and in major and minor injuries

Body scanners can detect contraband in the digestive tract and contraband that is hidden in body cavities with an increased level of certainty compared to the CSC’s other search methods. This ability is expected to increase the amount of knowledge on trafficked contraband that would otherwise enter the institution undetected. This is expected to increase the CSC’s ability to seize contraband and, as a result, decrease minor injuries, major injuries and fatalities (e.g. injuries and fatalities due to overdoses).

However, no reduction in inmate injuries or fatalities can be expected under the amendments. The presence of a firm cap on the duration of dry cell detention creates a strong incentive for inmates in the dry cells to hold on to the contraband inside their body cavity, as they will know exactly when they will be released from the dry cell. As a result, no incremental contraband will be seized in the regulatory scenario that combines body scanners and a new dry cell regime that caps dry cell detention time. In fact, it is entirely possible that more contraband will slip past dry cell detention. The inclusion of a time limit to this practice benefits the inmate population, as it helps mitigate the potential negative effects of prolonged detention. However, this limit will also introduce the possibility for contraband to make it through dry cell detention and enter the mainstream population.

Benefits to inmates from a reduction of time in dry cells

These benefits relate to the physical and mental health of inmates. They are derived from access to recreational activities allowed by correctional programming, access to personal belongings, fewer days in isolation and increased opportunities to interact with others. They arise from the requirement in the regulation that caps the amount of time in dry cell detention. They are calculated as the difference between the total amount of time spent in dry cell detention in the baseline scenario and the expected amount of time spent in dry cell detention in the regulatory scenario (i.e. fewer dry cell detentions and shorter dry cell detentions). As these benefits are not easily monetized, they are reported in hours not spent in dry cells. It is estimated that as a result of these amendments, inmates will spend 25 156 hours (1 048 days) less in dry cells.

Benefit to Government from a reduction of time in dry cells

Under the amendments, a detention within a dry cell will have a time cap of 72 hours, which can be extended to a maximum of 120 hours if there are reasonable grounds to believe the inmate has done something to prevent the expulsion of potential contraband or has reinserted or re-ingested the contraband. Overall, it is expected that, relative to the baseline, this will result in the reduction in the amount of time spent in dry cells. To estimate this benefit, it is assumed, consistent with the new regulatory requirements, that there will be no dry cell placements lasting more than 120 hours after the implementation of the amendments. It is further assumed that there will be 50% fewer dry cell placements between 72 and 120 hours in duration once the amendments are in place due, in part, to the requirement for a positive result on a body scan to support any extensions. In turn, this will result in a lower cost of running dry cells that benefits the Government ($99,621 over 10 years).

Benefit to inmates and staff from a reduction in strip searches

In the regulatory scenario, there is a qualitative benefit to inmates and staff, particularly those with a history of abuse or trauma, or inmates with gender, religious or cultural needs, due to the use of body scanners. This is because body scans are generally considered less invasive than strip searches by both staff and inmates. During a body scan, an inmate remains clothed (versus a strip search, where the inmate would be required to be naked). Consultations with unions and staff suggest that correctional officers prefer to conduct a body scan over a strip search, and inmates are likely to similarly prefer body scans.

Cost-benefit statement
Table 1: Monetized costs
Impacted stakeholder Description of cost Period 1
(base year)		 Period 6 Period 10
(final year)		 Total (PV) Annualized value
Government Capital and warranty costs to purchase body scanners (including training requirements) $1,740,000 $0 $0 $7,799,076 $1,110,413
Body scanner maintenance costs $0 $24,750 $136,125 $370,093 $52,693
Ongoing operating and review costs $20,064 $114,245 $116,348 $592,684 $84,385
Costs to develop procedures for the collection, compilation, management and analysis of data $2,609 $2,700 $2,2750 $18,817 $2,679
All stakeholders Total costs $1,762,672 $141,696 $255,223 $8,780,670 $1,250,170
Table 2: Monetized benefits
Impacted stakeholder Description of benefit Period 1
(base year)		 Period 6 Period 10
(final year)		 Total (PV) Annualized value
Inmates Reduction of minor and major injuries sustained to inmates due to a reduction of drugs entering institutions $0 $0 $0 $0 $0
Government Reduction in dry cell detentions greater than 72 hours in length $13,811 $14,297 $14,560 $99,621 $14,184
All stakeholders Total benefits $13,811 $14,297 $14,560 $99,621 $14,184
Table 3: Summary of monetized costs and benefits
Impacts Period 1
(base year)		 Period 6 Period 10
(final year)		 Total (PV) Annualized value
Total costs $1,762,672 $141,696 $255,223 $8,780,670 $1,250,170
Total benefits $13,811 $14,297 $14,560 $99,621 $14,184
NET IMPACT −$1,748,862 −$127,399 −$240,663 −$8,681,048 −$1,235,986
Sensitivity analysis

A sensitivity analysis was carried out to assess the impact of uncertainty in the price of scanners and a change in the 50% decrease in dry cell placements assumed for the regulatory scenario on the costs and benefits of the amendments. The following scenarios illustrate the potential impacts:

Limitations of the cost-benefit analysis

Small business lens

Analysis under the small business lens concluded that the regulatory changes do not impact Canadian small businesses. The amendments solely impact the CSC’s operations of its correctional institutions.

One-for-one rule

The one-for-one rule does not apply, as there is no impact on business.

Regulatory cooperation and alignment

Discussions have occurred with the California Department of Corrections and Rehabilitation, and the CSC has held in-depth conversations with provincial corrections jurisdictions in Nova Scotia, Ontario and British Columbia, with respect to their implementation of body scanners. The CSC conducted a jurisdictional scan of correctional jurisdictions in Canada using full-body scanners and, although most had introduced scanners into their practices, discussions were focused on jurisdictions with expansive and developed programs that could speak to learned experiences and share procedural advice.

The experience with body scanners and policy were found to be very similar throughout the provincial jurisdictions, and the CSC expects to incorporate many of the lessons learned regarding daily operations and training from its provincial partners in its search policies. The CSC’s discussions with the provinces confirmed many operational questions the CSC had regarding body scanners and confirmed the CSC’s interest in the technology, as it proved itself to be effective in detecting contraband, improving security and introduces an additional less restrictive search tool, which helps to alleviate concerns external stakeholders have with traditional search and seizure methods (e.g. strip-searching and dry cells).

The amendments are aligned with how body scanners have been implemented in Nova Scotia, Ontario and British Columbia in terms of circumstances under which a detailed scan would be conducted. However, the amendments allow for detailed body scans to be conducted on inmates, visitors and staff, whereas the provincial correctional facilities only conduct detailed body scans to search inmates. In addition, the amendments allow for the use of non-detailed body scans on inmates, visitors, and staff. While Nova Scotia, Ontario and British Columbia do not use non-detailed body scans, the CSC believes that they are an effective search tool in federal corrections institutions.

When it comes to dry cell practices, direct comparison is challenging, as jurisdictions differ in how similar tools may be named, used and described in available information. In many instances such tools appear only in internal procedures and policies, operating outside of regulatory frameworks. Where large-scale changes have taken place, such as the 2021 decision by the province of Nova Scotia to cease using dry cells in provincial correctional facilities, outcomes are not yet available. In Nova Scotia’s case, the introduction of body scanners and the environment of their facility has led to a program change to isolate individuals suspected of concealing contraband in close confinement, without using a dry cell approach. At the federal level, similar tools, such as those used by the CBSA, are presently not reflected in federal regulations, with the Government’s changes to the CCRR being watched closely as a potential model.

As it relates to the dry cell changes, there are several jurisdictions, both provincially and internationally, that incorporate time constraints and extensions to their respective dry cell practices; Quebec, Oregon and Washington have 72-hour time caps, with two of them having direction on allowing 24-hour extensions. However, the referenced jurisdictions can extend their respective dry cell detentions indefinitely with the authorization from their respective decision makers. In addition, those jurisdictions are not required to conduct body scans on inmates prior to dry cell detention, whereas the amendments require that the IH rely on the result of a body scan search where a body scan search could be conducted and provided that a body scanner is both in proper working order and in the institution. The amendments also make body scans available to inmates in dry cells, if a body scanner is available and operational.

Following the analysis of the consultation comments received from the CGI, the CSC conducted an additional jurisdictional scan of the correctional authorities in the provinces and territories to follow up on select aspects of their respective practices, with particular regard to time limits and alternatives to dry cells. All provincial and territorial jurisdictions use a dry cell or an equivalent (e.g. isolation procedures to ensure the security and safety of the institutions from potential contraband) and have implemented oversight mechanisms. Dry cell oversight mechanisms in place at the provincial and territorial levels include, but are not limited to, body scan searches, health care check-ups and monitoring the number of bowel movements. Some provincial and territorial jurisdictions also included time limits to dry cell placements. However, in the majority of responding jurisdictions with a dry cell practice (e.g. use of cells without plumbing fixtures), the detention in a dry cell could be continued beyond pre-existing time limitations if there remained reasonable grounds to believe that contraband was still concealed by the inmate and the dry cell was still considered an effective measure to detect or recover the contraband. Additionally, in multiple jurisdictions, the results of a body scan are used to support the authorization of a dry cell detention, but are not the only factor. This contrasts with the amendments in which the authorization of a dry cell detention requires a positive result of a body scan search, provided a body scanner is in the institution and in proper working order, and the inmate complies with the body scan search.

Effects on the environment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus (GBA+)

On June 19, 2017, the Canadian Human Rights Act was amended to add “gender identity or expression” to the list of prohibited grounds of discrimination. Given the extent of changes required to address gender considerations in all areas of CSC operations, dedicated resources were assigned to refine the CSC’s practices and procedures while considering policy, legal and operational issues. As a result, the CSC created the Gender Considerations Secretariat. Among its various key activities, it assisted, supported and provided guidance on operational questions related to the introduction of body scanners, specifically those associated to gender considerations.

The CSC provides services that are gender-specific and culture-specific to ensure that the diverse needs of offenders are met to improve their rehabilitation outcomes and to facilitate more positive conditions for community reintegration. This is also the case for operational security practices such as strip-searching that, by law, have sex requirements. Introducing body scanners reduces the need for persons to undress, hastens the search process, maintains greater respect and dignity of individuals, and is an impartial process for searching diverse groups of people. Body scan searches also ensure the respect and dignity of all persons, particularly women and individuals with gender identity and expression considerations who are more likely to have histories of sexual and physical abuse, while responding to various cultural or religious practices and issues (e.g. removing head coverings).

Further, there are some faith communities that have expressed significant concerns about the use of body scanners in airports and other settings where security is paramount. Most often, these concerns come from those belonging to faiths with strict modesty regulations and practices. In these cases, the religious restriction is not necessarily related to whether a person’s body can be viewed (i.e. for security purposes), but rather to who is actually viewing the images. For example, the stricter expressions of both Islam and Judaism forbid a man to view a woman’s body and vice versa.

Although it is not expected that body scanners will adversely affect persons with various cultural and religious practices and considerations, caveats for searching persons with religious or cultural needs will be consulted on with internal and external stakeholders, and established in Commissioner’s Directives on searching once the legislation is in force. A good example is the CSC’s current searching requirements in Commissioner’s Directive 566-7 — Searching of Offenders, as this applies to women, offenders with gender identity and expression considerations, and searching personal effects (e.g. religious articles, head coverings, bandanas). The CSC is further engaging its stakeholders to continually refine language in its searching policies that provide alternative search options for persons with certain religious or cultural beliefs while meeting the security requirements.

The dry cell amendments made in the Budget Implementation Act, 2022, No. 1 removed the legislative authority for placing in a dry cell inmates suspected of concealing contraband in their vaginal cavity. In the current practice and moving forward in the amendments, men, women and gender-diverse people will be detained in dry cells under the same circumstances, if there are reasonable grounds to believe that the inmate has ingested contraband or is carrying contraband in their rectum. The introduction of complementary regulatory amendments to the dry cell regime further the commitment of respect for human dignity and alignment with the Charter.

Improvements to both the dry cell regime and body scanner implementation impact federally sentenced individuals, who are statistically more likely than the general Canadian population to be of Indigenous heritage, to have less education, to have a lower income and to experience mental health issues. Additionally, the pilot program has identified challenges related to aged offenders using body scanners (e.g. maintaining balance on the platform whilst in motion) and those with mobility issues. These challenges were considered throughout the procurement process for the purchase of body scanners post-pilot. Where necessary, the CSC will use alternate search methods if these issues inhibit the department’s ability to safely conduct a body scan search. As such, aged offenders and those with mobility issues may be less likely to benefit from the amendments.

Implementation, compliance and enforcement, and service standards

Implementation

Following the pilot project evaluation (anticipated October 2024), the CSC will build on best practices and efficiency in the deployment of the security screening devices from the pilot project. Evidence, through analysis of contraband trends and results of the pilot project will position the CSC to best determine deployment of the devices to specific institutions based on security level, inmate security profile and the contraband profile of the site.

In the interim, the two pilot sites provide monthly updates, as well as lessons learned, to monitor the ongoing project. These monthly evaluations have supported the CSC in the development of policy updates related to body scanners and also contributed to the refinement of technical standards for the tendering process. The most common and consistent insight throughout the pilot from an operational perspective have been challenges related to the analysis of images (quality of images to make a decision). Generally speaking, from a dignity standpoint, both staff and offenders alike (at least those offenders who are participating in the pilot) have identified an appreciation for this technology as it has reduced the number of strip-searches, which are inherently uncomfortable practices for offenders and staff.

The use of body scanners implies a new collection of highly sensitive personal information. The collection, use, disclosure, retention and, ultimately, disposal of this information is subject to the Privacy Act in ways that were not before seen with the use of strip searches. As a result, a number of privacy gaps had to be identified and subsequently mitigated to the best of the CSC’s abilities following privacy impact assessments (PIAs) to assess and mitigate privacy risks associated with the use of body scanners. Procedures have been implemented to ensure information is only accessible to authorized individuals, as needed, to review images to detect contraband. Profile information will be stored on the scanner device in a database protected by password access for retrieval if required for further review. With the inmate’s consent, staff will delete the information from the scan after 30 days. If consent to delete the scan is not received, the information will be retained on a secure system for two years, in compliance with the Privacy Act. Information could also be removed from the scanner device using an encrypted USB key, if required for sharing with other authorized individuals for subsequent reviews (e.g. IH reviews).

Coordination and cooperation with the successful vendor are necessary to ensure deployment is carried out in a manner as efficient as possible. The CSC has started the procurement process to award a contract for the purchasing of body scanners; this is expected to occur in 2024, prior to the coming into force of the amendments. The CSC will be using existing funds to purchase the body scanners. Upon coming into force, the continued operation of body scanners used during the pilot project will be pursuant to the amendments.

Information on body scanners will be provided to inmates, staff and visitors through updates to inmate handbooks, posters with information about privacy, health and safety information associated with body scanners at the location of the body scanner, and through structured communication strategies.

Staff throughout the organization will be advised through communication strategies about the changes to the regulations and new authorities for the CSC in regard to the use of body scanners.

Operators will be trained on the safe operation of the devices by the vendor, as identified in the contract.

The amendments regarding dry cells are reflected and further clarified in the relevant Commissioner’s Directive 566-7 — Searching of Offenders. Awareness has also been raised via a policy bulletin. These changes have been implemented at institutions immediately upon the amendments coming into effect. The regulation changes do not require any additional staff training on the use of dry cells. Procedures for the collection, compilation, management and analysis of data with respect to the use of dry cells have been created alongside the amendments in order to create the required reports and identify trends in the dry cell practice. Ultimately, the data included in these reports is used by the CSC to monitor and evaluate the use of dry cells. Regions are currently mandated to provide a monthly roll-up of dry cell placements within their respective regions, and National Headquarters security operations analyze the same data to ensure overall policy compliance.

The amendments come into force on October 1, 2024, the day on which the remaining changes to the CCRA, made by former Bill C-83, come into force.

Compliance and enforcement

The CSC will ensure staff are following the regulations by first ensuring awareness, education and training on the new regulatory requirements, including structured training, information sessions, documentation/reporting to various levels in the organization and audits of activities.

The regulatory changes are further elaborated upon in the CSC’s relevant Commissioner’s Directives. The new reporting requirements that were introduced in the amendments, along with the requirement that the CSC set out procedures for the collection, compilation, management and analysis of that data, will aid in ensuring compliance and monitoring trends. When a dry cell detention reaches 48 hours, the Assistant Deputy Commissioner, Correctional Operations (ADCCO) at Regional Headquarters must be notified. At 72 hours, and in the case of any extension beyond 24 hours, the Director General, Security, at National Headquarters must also be notified. These notifications require a detailed rationale for the detention. This allows for both Regional and National Headquarters to provide oversight and guidance on the use of dry cells. The CSC collects dry cell-related data from institutions on a monthly basis, which will further aid in ensuring compliance.

Service standards

In the amendments, there is a requirement to conduct a body scan search of an inmate in a dry cell upon their request, if they have not undergone a body scan in the preceding 24 hours while in a dry cell. The CSC will provide the requested body scan search without delay, to ensure that the results can be used to support the continued detention or removal from dry cells.

Additional procedural standards have been outlined in the relevant Commissioner’s Directives and other internal policy documentation.

Contact

Stacey Ault
Director
Corrections and Criminal Justice Division
Crime Prevention Branch
Public Safety Canada
269 Laurier Ave West
Ottawa, Ontario
K1A 0P8
Email: correctionspolicy-politiquecorrectionnelles@ps-sp.gc.ca

Patrick Derby
Director
Strategic Policy Division
Strategic Policy and Planning Branch
Correctional Service Canada
340 Laurier Ave West
Ottawa, Ontario
K1P 5K3
Email: policy-politiques.gen-nhq@csc-scc.gc.ca