Policy Bulletin 265
What is the issue?
To communicate recent changes to the Criminal Code that emanate from Bill C-13 (An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments), as well as proposed consequential amendments to Commissioner's Directive (CD) 085.
What is the legislative amendment?
The Criminal Code amendments respecting sentencing provide for, among other things, the power of the sentencing judge to order an offender not to communicate with identified persons while in custody and the creation of an offence for failing to comply with the order.
Bill C-13 received Royal Assent on May 29, 2008. Specifically, paragraph 42 of the Bill, which will come into force on October 1, 2008, amends the Criminal Code by adding the following after section 743.2 (Report by court to Correctional Service):
743.21 (1) The sentencing judge may issue an order prohibiting the offender from communicating, directly or indirectly, with any victim, witness or other person identified in the order during the custodial period of the sentence, except in accordance with any conditions specified in the order that the sentencing judge considers necessary.
(2) Every person who fails, without lawful excuse, the proof of which lies on that person, to comply with the order
What are the existing provisions regarding offender restrictions to communication?
Currently, Section 95 of the Corrections and Conditional Release Regulations (CCRR) allows the institutional head to prevent an inmate from communicating with identified persons on reasonable grounds that the safety of any person would be jeopardized, or upon request of an intended recipient. These provisions are also reflected in CD 085, paragraph 20 (Prevention of Communications).
What will be changed?
An amendment will be made to CD 085, paragraph 20, to include, among the criteria for the prevention of communications, reference to the new Criminal Code section 743.21 non-communication orders. An important distinction is that a breach of such an order will constitute a criminal offence, the conviction of which carries a term of imprisonment. It will be the responsibility of the Institutional Head to ensure that breaches are reported to the police.
The Correctional Operations and Programs Sector will lead a comprehensive review of CD 085 to commence in the fall of 2008. The aforementioned amendment will be incorporated as part of this larger review. In effect, the new Criminal Code section 743.21 will come into force prior to the promulgation of the amended CD.
Who will be affected by the policy change?
Institutional Heads, Sentence Management, Admission & Discharge, Visits & Correspondence, Institutional and Community Parole Officers and any other staff who are involved with offenders' correspondence and/or telephone communication.
Identification of the Order
The legislation does not create a new Criminal Code form for the use of the Courts when issuing section 743.21 orders. The non-communication order could either be noted on the Warrant of Committal or found in the court documents received following sentence i.e. Judge's Reasons for Sentence, Certificate of Conviction, etc. Sentence Management will need to review all court documents to ascertain that an order exists.
Impact of Bill C-13 on Community Operations
The Criminal Code amendment would also apply during any circumstance that an offender meets the definition of "inmate", for example, is temporarily outside penitentiary by reason of a Temporary Absence, Work Release, order to attend court, or transfer. The existence of such an order, therefore, should be flagged in any submissions to the releasing authority.
The s. 743.21 non-communication orders should also be considered and respected to the extent possible (even if not technically in force), when establishing community strategies for offenders on conditional release.
The s.743.21 orders will also apply during any period of re-commitment to custody as a result of a suspension of parole or Statutory Release.
Offender Management System
The creation of new OMS fields will enable the section 743.21 orders to be recorded and flagged on offender files as applicable. Upon confirmation of the existence of a non-communication order, Sentence Management will enter the information in OMS, which will also create a flag to alert staff of the order.
As well, the Criminal Code Table list will include the new Criminal Code offence of Fail to Comply with the Order as per section 743.21(2) CCC.
- Michael Bettman
- Director, Reintegration Programs
- Marie-France Lapierre
- Portfolio Manager, Strategic Policy
For more information
- Government-wide Forward Regulatory Plans
- The Cabinet Directive on Regulatory Management
- The Red Tape Reduction Action Plan
- The Canada–United States Regulatory Cooperation Council
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