Policy Bulletin 15
What is new/changed?
TASK FORCE ON POLICY REVIEW - AMENDMENTS TO COMMISSIONER'S DIRECTIVES (CD)
CD 020 - COMMUNICATIONS WITH STAFF/OFFENDERS
CD 081 - INMATE COMPLAINTS AND GRIEVANCES
CD 085 - CORRESPONDENCE AND TELEPHONE COMMUNICATION
CD 575 - INTERCEPTION OF COMMUNICATIONS RELATED TO THE MAINTENANCE OF INSTITUTIONAL SECURITY
CD 580 - DISCIPLINE OF INMATES
CD 737 - INMATE-OPERATED BUSINESS ENTERPRISES
CD 740 - WORK RELEASES
CD 770 - VISITING
CD 775 - VOLUNTEERS AND VOLUNTEER ACTIVITIES
CD 782 - SHARING OFFENDER-RELATED INFORMATION
CD 790 - TEMPORARY ABSENCES
Why was the policy changed?
The Task Force on Policy Review reviewed the Commissioner's Directives, from a legal perspective, to identify areas of non-compliance with the Corrections and Conditional Release Act (CCRA) and its Regulations (CCRR) and possible Charter violations. The review identified four levels of non-compliance, the first, and most significant level being direct non-compliance or contradictions with the CCRA and the CCRR (Report of the Task Force on Policy Review - Annex D).
These amendments focus on eleven of the thirteen Directives that were determined to be in direct non-compliance with the CCRA , the CCRR or representing possible Charter violations. Amendments to the two remaining Commissioner Directive - CD 585 - National Drug Strategy and CD 576 - Management of Gangs and Organized Crime require a substantive review by the Security Branch and the Legal Services Unit.
In addition to the level one amendments, and to the extent that the amendments are technical in nature, additional amendments have been made, to respond to level 2, 3 and 4 observations in the legal review.
What is the purpose of the change?
CD 020 - Communications with Staff/Offenders - Paragraph 19 has been amended.
The legal analysis observes that the current wording of paragraph 19 may be in violation of the Charter freedom of expression provisions. Inmates cannot be prevented from communicating in their own language. Paragraph 19 has been amended to make it clear that in the case of written communication, if security reasons exist pursuant to the criteria set out in section 94 of the CCRR , CSC can intercept the correspondence in order to have it translated before allowing it to go out.
CD 081 - Inmate Complaints and Grievances - Paragraphs 1, 4, 7, 14, and 36 have been amended.
To reflect the paramount importance of the rule of law, paragraph 1 adds a reference to the CCRA and the CCRR to the statement of objective.
Paragraph 4 removes "on matters which they consider to have significant impact on their life" as the grounds for submitting a complaint or grievance and replaces it with the wording of the CCRA which states that inmates may submit a complaint or grievance "on matters within the jurisdiction of the Commissioner."
The heading - TIMELINESS has been replaced with EXPEDITIOUS RESOLUTION, in accordance with the wording of section 90 of the CCRA that is, the process must be expeditious. The French and English versions of paragraph 7 itself have been similarly amended.
The current wording of paragraph 14 provides that where an offender is pursuing alternative legal remedies outside the institution in regard to his or her complaint or grievance, the decision maker has the option as to whether or not a reply will be provided to the complaint or grievance, depending on the outcome of the external action. This is inconsistent with section 82 of the CCRR which requires CSC to respond to complaints and grievances taking into consideration any other measures, recommendations or judicial decision taken.
The present wording of paragraph 36 - "where possible" implies discretion as to the formation of an outside review board comprised of neutral community members. The paragraph has been amended to reflect the section 79 of the CCRR requirement that upon request from the inmate, the institutional head shall refer the grievance to an outside review board.
CD 085 - Correspondence and Telephone Communication - Paragraphs 2, 3, 6, 7, 8, 10, 15 and 23 (previously 5, 6, 7, 9, 14 and 22) have been amended.
Paragraph 2 has been amended to remove the requirement that the person assisting inmates in preparing and reading correspondence be a staff member.
Paragraph 3 has been amended to move the sentence "Normally, letters to and from inmates shall not be read" to the beginning of new paragraph 6.
A new paragraph has been added (paragraph 5) requiring inmates to be advised of the measures taken when items are found in letters. It should be noted that this modifies the numbering of subsequent paragraphs.
Paragraph 6 amendments remove reference to a criminal offence or a plan to commit a criminal offence as grounds for the institutional head or designate to authorize a staff member to read correspondence. While the CCRR provide this as grounds, the legal review found that the CCRR go beyond CSC 's jurisdiction, as specified in the CCRA , section 96 (z.7). A legislative amendment is required to address this.
Paragraph 7 amendments correctly reflect subsection 94(3) of the CCRR which specifies that inmates shall be advised in writing when correspondence is intercepted and given the opportunity to make representations, except when the information will adversely affect an on-going investigation (as opposed to current wording which specifies security considerations). In this latter situation, the offender shall be advised of the reasons and provided an opportunity to make representations when the investigation is completed.
Amendments to paragraph 8 c. have incorporated, in accordance with the CCRR , the obligation of CSC to inform the inmate of the reasons and to allow him or her to make representations.
Amendments in paragraph 10 add the requirement that when privileged correspondence is intercepted, the content should be treated as confidential.
Paragraphs 15 and 23 have been amended to include reference to the CCRR , section 94.
CD 575 - Interception of Communications Related to the Maintenance of Institutional Security - Paragraphs 3, 4 (deleted), 8 e.(2), 9, 10, 31 and 34 have been amended.
Paragraph 3 has been amended to address the perception conveyed by the current wording of the paragraph that the sole authority for the interception of inmate communications lies in the Criminal Code. The amendment reflects that CSC 's authority to intercept communications is provided in section 94 of the CCRR .
Paragraph 4 has been deleted since there is no legislative authority for the exception provided for in this paragraph. It should be noted that this deletion modifies the numbering of subsequent paragraphs.
The amendment to paragraph 8 e. (2) is a technical amendment that adds reference to the CCRR , in addition to the Criminal Code.
Paragraph 10 requires institutional heads to maintain a list of persons for whom the interception of communications has been authorized. The amendment to this paragraph clarifies that inmates should remain on the list only for as long as the grounds for intercepting the communications, as per section 94 of the CCRR continue to be met.
The amendments in paragraph 31 clarifies that staff may respond to general questions about the interception system itself, with general policy, however, when inmate correspondence is intercepted, they are required to provide the offender with the reasons for the interception and an opportunity to make representations (section 94 of the CCRR ).
The amendment to paragraph 34 removes the wording "good order of the institution" and replaces it with the wording of the Act "security of the penitentiary or the safety of any person."
CD 580 - Discipline of Inmates - Paragraphs 5, 7, 31, 32, 35, 36, 38, 39 have been modified.
Where the term chairperson has been used in the above-noted paragraphs, it has been replaced by the term "the person conducting the hearing of the disciplinary offence".
Amendments to paragraph 5, references subsection 41 (1) of the CCRA requiring the Service to take all reasonable steps to resolve matters informally.
Amendments to paragraph 7 references subsection 41(2) of the CCRA which provides that "where informal resolution is not achieved (...)."
Paragraph 39 has been amended to accurately reflect subsection 43(3) of the CCRA requiring the person conducting the hearing "not to find the inmate guilty unless satisfied beyond a reasonable doubt, based on the evidence presented at the hearing" that the inmate committed the disciplinary offence in question.
CD 737 - Inmate-Operated Business Enterprises
Paragraph 2 has been amended to clarify that the requirement to obtain approval from the institutional head to operate a business applies only to inmate- operated businesses in a penitentiary.
CD 740 - Work Releases- Paragraphs 7 and 27 have been amended.
Paragraph 7 has been amended to remove the restriction that inmates who are awaiting a decision on a referral for detention are not eligible to participate on work releases. As a result of this amendment, paragraph 7 is now consistent with subsection 130(2) of the CCRA which specifies that inmates awaiting a decision on a detention referral are not eligible to be released on Statutory Release. They are eligible to apply for other forms of release.
Section 7 has been amended to add the requirement, following a decision to suspend or cancel a work release, to provide the inmate the opportunity to make representations, particularly when the decision is attributable to his or her actions.
CD 770 - Visiting - Paragraphs 18, 19, 21, 36, 37 and 38 have been amended.
Amendments to paragraphs 18 and 21 are technical amendments to bring the references to paragraphs in line with new paragraph numbering.
Paragraph 19 has been amended to comply with section 91 of the CCRR requiring that a decision on the suspension of visits must be based on a case-by-case assessment. There is no authority to suspend all visits to the inmate (as current wording suggests) unless there are reasonable grounds to believe that all visits of the inmate will jeopardize the security of the penitentiary or the safety of any person and the restrictions on the manner in which the visits take place would not be adequate to control the risk.
Paragraphs 36, 37 and 38 relating to restrictions on private family visits as a result of being found guilty of possession of or introducing contraband, weapons, or instruments to aid in escape through a private family visit, or the commission of an offence involving a family member during a private family visit, have been amended to comply with subsection 91(2) of the CCRR requiring the ongoing assessment of the existence of the risk posed by the private family visit. The restrictions on the visit should persist only as long as the risk persists. These three paragraphs have also been amalgamated.
CD 775 - Volunteers and Volunteer Activities
Paragraph 7 has been amended to reflect that volunteers are now, in accordance with Treasury Board policies, indemnified in case of disability.
CD 782 - Sharing Offender-Related Information
Paragraph 15 c. has been amended to specify requirements with respect to the contents of a "gist" of protected information, and to clarify that if information cannot be shared with the offender, even in gist form, it cannot be used in the decision.
CD 790 - Temporary Absences - Paragraphs 3, 6, 21, 24, 25, and 36 have been modified.
Paragraph 3 has been deleted since the CCRA now uses the French "permission de sortir avec escorte". As a result the numbering of subsequent paragraphs have been adjusted.
The French version of paragraph 6 a. (previously 7) now reflects the wording of the Act - « le risque de récidive durant la sortie n'est pas inacceptable pour la société».
Amendments to paragraph 21 (previously 22) removes reference to "inmates awaiting a decision on a recommendation for detention" as being excluded from consideration for an escorted temporary absence (ETA). Escorted temporary absences for all other purposes may be granted to all inmates except those detained during a period of statutory release.
Paragraphs 24 and 25 (previously 25 and 26) remove those aspects of current policy which illegally fetter the institutional head's authority to grant ETAs to lifers and inmates serving indeterminate sentences in those cases where the National Parole Board (NPB) does not support the temporary absence. The institutional head must, however, consult with the NPB before making a decision on the ETA.
While these amendments commit the Correctional Service to consulting with the NPB, it clearly places the final decision-making authority for escorted temporary absences for life and indeterminate sentences with the institutional head as provided for in the Act.
Paragraph 36 (previously 37) removes the exclusion of inmates awaiting a decision on a recommendation for detention from unescorted temporary absence (UTA) consideration. Only those inmates who have been detained and those assigned a maximum security classification are excluded from UTA consideration.
How was it developed?
Except for the amendments to paragraphs 25 and 26 of CD 790 - Temporary Absences, the Corporate Development Sector, in consultation with the Legal Services Unit, developed the amendments in response to the observations of the legal review conducted by the Task Force on Policy Review. There were no consultations undertaken on these amendments, as they are considered to be technical, to bring the Commissioner's Directives in line with legal requirements.
Amendments to paragraphs 25 and 26 of CD 790 respecting the policy requirement for institutional heads to seek NPB approval on ETAs were initiated by the National Parole Board at a May 1996 Interlinkages Committee meeting. Consultations have since been undertaken with the Legal Services Unit and the Assistant Deputy Commissioners. The Legal Services Unit confirmed that these paragraphs illegally fetter the decision-making authority of the institutional head. Reference to this issue was made in the Commissioner's Directives analysis contained in Annex B of the Report of the Task Force on Policy Review.
With the exception of the amendments to CD 790, paragraphs 24 and 25, these amendments reflect existing legislative requirements, therefore current accountability criteria are unaffected.
In the case of CD 790, the institutional head now has final authority for ETAs for life and indeterminate sentences.
Who will be affected by the policy?
Staff and inmates of the Correctional Service of Canada.
For more information
- Government-wide Forward Regulatory Plans
- The Cabinet Directive on Regulatory
- The Federal regulatory management
- The Canada–United States Regulatory Cooperation Council
To learn about upcoming or ongoing consultations on proposed federal regulations, visit the Canada Gazette and Consulting with Canadians websites.
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