To provide corporate direction for the negotiation, implementation and management of Exchange of Service Agreements between the Minister of Public Safety and Emergency Preparedness and provincial/territorial jurisdictions, with the exception of agreements with Aboriginal communities, as described in section 81 of the CCRA
Applies to staff involved in the development and implementation of Exchange of Service Agreements
Objectives and Principles
The intent of an Exchange of Service Agreement (ESA) is to detail the roles and responsibilities of each jurisdiction and include specific protocols regarding per diem rates, offender information sharing, and invoicing pertaining to the reciprocal exchange of offenders between jurisdictions.
Provided that the safety of the public is not jeopardized, ESAs may be entered into in order to facilitate and enhance offender-related objectives such as:
keeping offenders closer to their home community, in recognition of the value of family and community relationships
meeting the needs of individuals and ethno-cultural groups
providing adequate security, protection and services for offenders in a correctional facility
providing access to specific programs or services which will enhance offenders’ potential for reintegration into the community
enabling offenders to exercise their legal rights in relation to their conviction and sentence.
Exchange of Service Agreements are developed on the basis of the following principles:
public safety is the paramount objective of the criminal justice system
there should be a balanced approach to corrections, using measures limited to only what is necessary and proportionate for the protection of society. This includes promoting effective interventions such as alternatives to incarceration for offenders who can be safely managed in the community, and safely managing the risk of offenders who have an active potential for violence
sound correctional practice entails an assessment of the risk and needs of individual offenders, and matching the level of supervision and the delivery of programs to meet the risk and needs of offenders
the active engagement of communities in the process of addressing crime and managing offenders in their communities should be promoted
partnerships between governments, and the voluntary and private sectors to advance the common goal of public safety should be encouraged
governments will work together to maximize the effectiveness and efficiency of the criminal justice system.
STEPS IN THE NEGOTIATION PROCESS
Step 1: Set up Working Group and Steering Committee
Negotiation projects are typically organized in a bilateral manner (e.g. at federal and provincial/territorial level), through a regionally led working group comprised of both regional and national officials, reporting to a steering committee of senior managers, as required.
The working group acts as a negotiating team, conducting detailed analysis and developing the proposed terms to be included in the agreement. The specific composition of a working group, chaired by the Regional Deputy Commissioner or an individual designated by the Regional Deputy Commissioner, may vary according to the nature of the agreement, but will include regional representatives as well as representatives from Intergovernmental Relations, Regional Headquarters Finance, Legal Services, Women Offender Sector, and other areas, as required (e.g. Policy Sector, Health Services, Contracting and Materiel Management Division, Correctional Operations and Programs Sector, National Headquarters Finance).
A steering committee, chaired by the Director General, Executive Secretariat, may oversee and direct the work of the working group. Suggested members may include the Regional Deputy Commissioner, the Assistant Commissioner, Corporate Services, and/or other senior managers, as appropriate.
Step 2: Conduct Pre-Negotiation Analysis of Requirements
One of the key components of an effective ESA negotiation process is the clear articulation of objectives, the relationship of those objectives to the corporate objectives, as well as the ongoing implementation of appropriate adjustments to the agreement through effective operational management.
The purpose of the pre-negotiation phase is to conduct preliminary research and discussions in order to assess whether an ESA is the most appropriate and cost-effective method of providing specific services and programs. It also serves to provide advance notice of issues which may eventually require ministerial and Governor in Council approval, and allows for appropriate consultation and involvement, particularly with officials from the Treasury Board Secretariat.
All ESAs must take into account the program, policy, legal and financial considerations of CSC and the federal government (e.g. Treasury Board policies and regulations). Thus, the needs analysis focuses on the following aspects:
definition of the target population – might include such variables as location, gender, type of offence, type of sentence, special program requirements, health and/or safety needs, culture, and estimated number of offenders
scope of the requirement – an analysis of accommodation requirements which establishes the number of beds required, for what period of time, and at what cost, to meet the identified need, while taking into account such factors as intake, turnover, rejection, return rates, and available resources and capacity
levels and types of services – required to respond to the needs of the target population for programs and follow-up.
Much of the initial information gathering for the needs analysis is conducted by a regional coordinator/representative on the working group and subsequently analyzed by the working group. Defining these factors leads to a statement of CSC objectives or desired outcomes (e.g. what accommodation, services and/or programs must be provided for an estimated number and type of offenders in a certain geographic location and for a specific duration and cost).
When the CSC objectives or desired outcomes have been defined, the estimated costs and benefits of providing services to federal offenders in provincial/territorial institutions through an ESA are compared to the estimated costs and benefits of providing such services directly through the federal correctional system.
The cost-benefit analysis conducted by the appointed working group members includes four main elements:
compatibility with CSC Mission, Values Statement and ESA Principles
CSC corporate plans and priorities.
Step 3: Notify Officials of Proposed Negotiations
Several steps must be taken to ensure that all individuals involved in the eventual decision-making process are aware of a negotiation, which will eventually require ministerial and Governor in Council approval:
in collaboration with the Regional Deputy Commissioner, the Intergovernmental Relations Directorate requests approval in principle to negotiate from the Minister of Public Safety and Emergency Preparedness. The Minister is provided with an overview of the initial needs analysis
once ministerial approval is received, the Intergovernmental Relations Directorate drafts letters for ministerial signature to the Minister's provincial/territorial counterpart(s), proposing that negotiation of a mutually satisfactory agreement be initiated, subject to comparative analysis, and suggesting the proposed timeframe.
Management of the Transition to the Negotiation Phase
Following approval in principle from the Minister to proceed with the negotiations, the chair of the working group, in consultation with the regional coordinator, should prepare a negotiation project plan outlining all aspects of the negotiation project, which could include:
project authority – who is accountable for the delivery of the end product(s)
project organization – key CSC players, their roles and responsibilities
proposed process, preliminary work plan and major milestones/results
communications plan – what information will be disseminated and through which means
resource allocation for conducting the negotiation – number and type of personnel, number of work days and project budget.
Step 4: Conduct Negotiations
The working group is in contact with provincial/territorial officials at the working level to obtain a preliminary idea of their requirements. As the negotiation proceeds, terms and conditions acceptable to both parties are established, and areas where consensus cannot be reached at the working group level are identified.
The report of the working level negotiation is provided to the steering committee and their provincial/territorial counterparts to obtain their approval of areas where mutual agreement has been reached and to conclude the negotiation in areas where the working level could not reach agreement. The working group chair is responsible for ensuring the steering committee is fully briefed prior to steering level negotiation meetings.
Step 5: Prepare Documentation
An ESA typically has clauses related to five general sections as follows:
legal basis and authority for the agreement
purpose, objectives and principles of the agreement
basic terms of the agreement (e.g. mutual responsibilities)
types of offenders who may be transferred
types of programs, services, accommodation, and transportation commitments
provisions for emergency transfers
duration of custody
financial agreement – amount and terms of payment, billing requirements and annual payment adjustments
legal and policy considerations
jurisdiction, including implications on the offender while serving in a jurisdiction different than the one in which he/she was sentenced
documentation and records (including case management, security, and physical and mental health records)
agreement to adhere to all relevant statutes, regulations and policies, as well as duty to act fairly
termination or amendment
duration of the agreement
reference to related agreements and to attached appendices
Pursuant to paragraph 14(f) of these Guidelines, the Regional Deputy Commissioner will decide whether or not a communication plan is needed. If required, the plan will be developed by the region, in consultation with the Intergovernmental Relations Directorate and the Communications and Engagement Sector, and may include the following:
steps to be taken to make the information available to the public, including victims
authorizing signatures (Minister or Commissioner and provincial/territorial equivalent(s))
appendices (e.g. setting out operational details).
An agreement signed by the Minister must receive ministerial approval for amendments made to the basic intent of the document. Amendments which change the scope or have significant cost implications may also require additional Governor in Council/Treasury Board approval.
During the term of an agreement, it may be desirable to make adjustments that do not affect the basic intent of the agreement. To allow operational flexibility, the main body of the agreement should delegate authority for amending operational details. This means that detailed operational provisions of the agreement can be amended without a formal ministerial and Treasury Board/Governor in Council approval process, thus providing operational flexibility in agreements approved by the Minister.
Some examples of the types of information that can be contained in appendices are:
notification procedures and timeframes (e.g. requirements for offender notification, including documented reasons for the transfer recommendation, its approval or denial, confirmation that the duty to act fairly has been met, etc.)
financial billing provisions
programs to be offered
detailed explanation of the calculation of the per diem payments based on the approved Chart of Accounts
audits and evaluations.
Types of Payment Structures
During the initial analysis, various types of payment structures are assessed. Payment structures might include:
Blended Rate – The total operating costs of a group of provincial/territorial prisons divided by the total offender bed days to arrive at a blended rate, as opposed to a rate for each one of the provincial prisons where offenders are incarcerated. This model may be appropriate for agreements where the purchased service is used infrequently or where several facilities are concerned, as is often the case with temporary detention. This model is also used where separate institutional rates are established.
Site/Service Specific Per Diem Rate – The total operating costs of one prison or of a number of provincial/territorial prisons offering a specific bed type (e.g. temporary detention bed or hospital bed) divided by the total inmate days to arrive at a specific per diem rate.
Annual Adjustment Payments – The terms and conditions under which an annual adjustment to rates of pay will be allowed should be negotiated and clearly outlined within the agreement. Where adjustments exceed increases attributable to changes in the applicable provincial/territorial Consumer Price Indexes, a review should be conducted to determine if the additional resource requirements are reasonable and available.
Termination of Agreements
Agreements must allow for termination by either party with specified timeframe for notice. ESAs typically cover a five-year period, with two possible extensions of five years each.
In negotiating new agreements, the termination clause should include:
the conditions under which the agreement may be terminated by either party
the reimbursement formula that should be used in the event of termination
the notification period for termination of an agreement, which is typically one year.
A number of factors could result in a decision to terminate or renegotiate an agreement:
significant changes in federal or provincial/territorial policies that have a direct impact on costs
significant operational difficulties experienced by either party
significant changes in the composition of the federal or provincial/territorial offender population
audit or program evaluation findings
significant changes in offender programs or services
the service is no longer required by either party.
If an analysis reveals significant variances between the terms of the agreement and the reality of the cost or level of service, these variances should be resolved with provincial/territorial officials at the operational level prior to suggesting remedial action via renegotiation of the agreement.
Renegotiation or Amendment of Agreements
An ESA should include a section that identifies the timing, conditions and basic procedures for renegotiating or amending the terms of the agreement. A renegotiation or amending process is a smaller-scale version of a negotiation process.
Many ESAs delegate authority for reviewing and renegotiating operational matters, usually in the appendices. This means that operational adjustments to such agreements can be approved at the Commissioner or Regional Deputy Commissioner level. However, if the main body of an agreement is to be amended, approval is required at the ministerial level, and perhaps also from central agencies such as Treasury Board or the Privy Council Office. In conjunction with Corporate Services and Legal Services, the Intergovernmental Relations Directorate determines the appropriate approval required.
Related Legal Considerations
Role of Provincial Parole Boards
Two provinces have their own Parole Boards: Ontario and Quebec. With the exception of offenders serving life or indeterminate sentences, these provincial Parole Boards are the releasing authority for federal offenders transferred to those provincial jurisdictions. The provinces/territories are responsible, both legally and financially, for the supervision of transferred federal offenders released by provincial Parole Boards.
Transferred offenders (both federal and provincial/territorial) are subject to the statutory release review provisions of the CCRA.
Role of the Parole Board of Canada
The Parole Board of Canada will be consulted prior to a transfer decision for any offender sentenced to:
life imprisonment as a minimum
death, commuted to life imprisonment, or
detention in a penitentiary for an indeterminate period.
If the agreement with the province/territory does not contain a clause with respect to section 746.1 of the Criminal Code, then prior to executing transfer of such cases, the Regional Deputy Commissioner will normally obtain provincial/territorial agreement that the province/territory will not grant unescorted temporary absences nor non-medical escorted temporary absences to the offender without the approval of the Parole Board of Canada until the offender is within three years of parole eligibility.
Step 6: Obtain Internal/External Approval
ESAs will undergo a complete planning, financial and legal services review during and after the negotiation phase. This review should examine the issues of consistency and uniformity in agreements and ensure that all aspects of agreements are included in a particular proposal. Approval for incremental funding of ESAs is primarily conducted through consultation with Corporate Services.
Pursuant to subsection 16(1) of the CCRA, CSC is required to have all federal-provincial/territorial agreements approved by the Governor in Council.
The Intergovernmental Relations Directorate will work in collaboration with the Financial Strategies and Analysis Division to ensure the appropriate Treasury Board submission is completed to obtain Governor in Council approval of an Order in Council. This submission must be signed by the Minister and forwarded to the Treasury Board.
Following central agency approvals, the ESA is submitted to the Minister for final signature and then forwarded to the Minister’s provincial/territorial counterpart for his/her signature.
Should changes be required to an existing agreement, the changes will be reviewed on a case by case basis to determine the necessary approvals, if an additional submission is required.
Provincial/territorial jurisdictions are subject to a similar approval process.
Step 7: Finalize and Implement Agreement
Once the Governor in Council approval is obtained, the ESA is signed and the agreement is implemented.
The implementation phase, which is a transition between negotiation and management of agreements, has three main purposes:
reinforce the intent of the agreement to ensure that the principles and philosophy, as well as the legal and financial considerations of an agreement, are implemented in the spirit in which they were negotiated
transfer the lead role from National to Regional Headquarters
integrate the agreement into ongoing corporate planning and management processes.
The Intergovernmental Relations Division will coordinate and monitor the implementation phase to ensure that the necessary action is taken as specified in the terms of the agreement.
During the implementation phase, the Regional Deputy Commissioner should develop written procedures for the ongoing management of the agreement.
Once an agreement is implemented, a variety of tasks still must be carried out before full operation is realized. Most of these tasks are developmental (e.g. deciding on the membership of and terms of references for any committees identified within the respective ESAs). Refer to Annex C for the complete list of steps.
MANAGEMENT OF AGREEMENTS
The Regional Deputy Commissioner should also put in place a process to ensure ongoing effective management of the agreements, as well as to identify and effectively address any issues early on. The structure of this process will be identified and implemented by the region and could include formal and informal elements.
Bilateral Meetings with Joint Management Committees
The Regional Deputy Commissioner must meet (face to face or via tele/videoconference) at least once a year, preferably twice, with the other committee representatives from National Headquarters and with provincial/territorial officials to review the operation of agreements. The Regional Deputy Commissioner will provide the Director, Intergovernmental Relations, with a summary of the meetings, including a record of decisions and action taken, for future negotiation and audit purposes.
The roles of the Joint Management Committee are to:
manage the agreement
identify issues that affect the successful application of the agreement
resolve issues that are of an operational nature or recommend resolution via an amendment to the agreement.
Audits and Evaluations
An agreement must include mutually acceptable financial reporting requirements and systems, which have been developed through the negotiation process. Periodic audits of a sample of outputs from a provincial/territorial system will verify the accuracy of the system and of provincial/territorial billing.
Regional audits of specific billing systems and the information gained from the Bed Utilization Monitoring System, established and maintained by the Intergovernmental Relations Division, can be used for two purposes:
verify bills and validate related expenditures
provide data to analyze and evaluate the operation of agreements (e.g. information related to the referral, refusal, and return rates of offenders would, over a period of time, refine CSC's projections for future initiatives).
In contrast to operational reviews and audits, which verify the accuracy of systems, evaluations assess the effectiveness of agreements in terms of:
whether the agreement meets its stated objectives
the relationship between the stated ESA objectives and CSC’s corporate priorities (e.g. to assess the ongoing relevance of the agreement).
Evaluation criteria and schedules should be negotiated and conducted on a joint basis with the particular province/territory.
PLANNING AND MANAGEMENT CONSIDERATIONS
Link Exchange of Service Agreements to Corporate Planning and Management
National planning is required to link the planning and use of ESAs with corporate planning and management systems. The negotiation or amendment of agreements should ensure a balance between program and accommodation planning needs.
Plans and forecasts for interjurisdictional transfers should take into consideration the principles and objectives established for ESAs, the target population, the selection criteria and anticipated resource requirements.
Monitoring and Reporting
The Director General, Executive Secretariat, maintains a monitoring system to track national utilization and expenditure data and any other data, as required. The Regional Deputy Commissioner must establish and maintain the corresponding regional monitoring systems.
The Bed Utilization Monitoring System provides global information by province/territory on the type and number of ESA beds used in each quarter and associated expenditures, as well as the forecasted utilization and expenditures for the remainder of the fiscal year being reported.
In addition to the financial monitoring system, the Regional Deputy Commissioner will report on a quarterly basis, to the Director General, Executive Secretariat, on issues pertaining to the ongoing management of the agreement, including potential or forthcoming changes to utilization rates and expenditures.
Exchange of Service Agreement (ESA): an agreement between the Minister of Public Safety and Emergency Preparedness and provincial/territorial governments regarding the temporary detention, transfer and community supervision of offenders. ESAs detail the roles and responsibilities of each jurisdiction and include specific protocols regarding per diem rates, offender information sharing, and invoicing.
Initial information gathering and analysis
STEERING COMMITTEE Oversees and directs the work of the working group ↓
NEEDS OF OFFENDERS
Define target population
Identify target population’s accommodation and/or program needs
(in relation to CSC Mission, Values Statement and Corporate Objectives)
OFFENDER NEEDS IN THE CONTEXT OF THE FEDERAL CORRECTIONS SYSTEM
Submissions to Treasury Board
Main Estimates ↓
DEFINE CSC OBJECTIVE(S)
What service/program/accommodation will be provided, for how many or
what types of offenders, in what location, for what period of time and at what cost?
How can CSC objective(s) be accomplished?
(provide services directly
through federal system) ↓
(provide services through ESA)
Extent to which
are compatible with
CSC Mission and ESA
Apply program profile;
(comparative costs per
Extent to which
are compatible with
Most appropriate and cost-effective option (may be ESA)
ESA CHECKLIST – STEPS IN THE NEGOTIATION PROCESS AND RECOMMENDED TIMEFRAMES
Step 1: Set up working group and steering committee
a) Set up working group led by Regional Deputy Commissioner (RDC). The working group will consist of subject-matter experts (Regional Operations, RHQ Finance, Intergovernmental Relations Directorate (IGR), Legal Services, WOS and others as required) working together to achieve an Exchange of Service Agreement
Start date: April 1st of the year proceeding implementation target date
ACCS/DCFO, ADCCS, IGR, Legal
b) Set-up steering committee, as required, led by Director General, Executive Secretariat (DGES). The steering committee completes initial development steps, oversees and manages program goals and objectives, and coordinates the activities of the working group.
ACCS/DCFO, ADCCS, IGR
Step 2: Conduct pre-negotiation analysis of requirements
c) Define objectives of both parties
d) Conduct needs analysis – program, policy, legal and financial