Policy Bulletin 451
Interim policy regarding disclosure/sharing of information
Why was the policy changed?
On March 27, 2014, the Supreme Court of Canada released its decision in Mission Institution v. Khela, dismissing the Correctional Service of Canada’s (CSC) appeal from the judgment of the Court of Appeal for British Columbia which ruled in favor of an inmate in habeas corpus proceedings. The Supreme Court of Canada reaffirmed the importance of sufficiently detailing and documenting decisions that result in a deprivation of liberty, such as security classification, transfer/movement, temporary absence and segregation decisions.
In the case in question, the inmate challenged the lawfulness of an involuntary transfer on the basis that the decision was both unreasonable and procedurally unfair. The reasons for his involuntary transfer were based on information coming from a confidential source. The inmate was not provided with any details about the source, what the source said or why the source information was considered reliable. Furthermore, the inmate was not provided with a copy of the Security Reclassification Scale Functional Specification (scoring matrix).
The result of the decision is confirmation that in habeas corpus proceedings, provincial superior courts can now review CSC decisions on their merits in order to make a determination of reasonableness. The Supreme Court also clarified CSC’s obligations with regard to section 27 of the Corrections and Conditional Release Act (CCRA) and information sharing. CSC’s decisions will not be legally compliant if these new habeas corpus principles are not followed.
What has changed?
In the Khela decision, the Supreme Court reinforced the principle that all CSC decisions must be reasonable. A decision that is unreasonable will be found unlawful. In order to ensure that the decision drafted is reasonable, decision makers must ensure that the aspects listed below are accounted for in the decision :
- the decision clearly details what evidence is being relied upon and includes an explanation of why that evidence is credible and persuasive;
- the decision fully considers and addresses any rebuttal submissions;
- the decision is written in a manner that is justified (focusing on relevant factors and evidence), transparent (clearly stating the basis for the decision reached) and intelligible (the result clearly derives from the reasons provided).
CASE MANAGEMENT PROCESS
In addition to being reasonable, the decision must also be procedurally fair. Section 27 of the CCRA requires that the inmate be given all the information being considered by the decision maker or a summary of that information.
When it is determined that withholding information from an inmate is necessary under subsection 27(3) of the CCRA, a “gist” will be prepared and shared with him/her as outlined in Annex C of CD 701 – Information Sharing. A “gist” for protected information will be prepared by the Security Intelligence Officer (SIO) in a separate document and provided to the Parole Officer/Correctional Officer/Primary Worker to be included in the analysis of the request (e.g. via an Assessment for Decision report, sharing of information regarding segregation). Consultation and collaboration between the SIO and the author of the report are important to ensure that the inmate is provided with all of the information he/she is entitled to and to ensure that only as much information as is strictly necessary to protect the interests listed in subsection 27(3) of the CCRA is being withheld.
When subsection 27(3) of the CCRA is invoked to withhold information from an inmate, the following elements must be included in the decision-making reports (e.g., the Assessment for Decision for a Security Reclassification outlined in Annex B of CD 710 6 – Review of Inmate Security Classification, as well as Annexes A and D of GL 709-1 – Administrative Segregation Guidelines):
- when information contained in certain reports cannot be shared with the inmate, a statement informing the inmate that subsection 27(3) is being invoked and stating whether the disclosure of information would jeopardize the safety of a person, the security of a penitentiary and/or the conduct of a lawful investigation;
- where possible, an explanation of why there are reasonable grounds to believe that disclosure of the information would jeopardize the safety of any person, the security of the penitentiary or the conduct of any lawful investigation. Vague or generic statements are to be avoided;
- where possible, if confidential source information is being relied upon, an explanation of the level of reliability of the information.
Where information is being withheld under subsection 27(3), CSC will be responsible for explaining to the court the reasons for withholding information. This will be done in the form of a confidential affidavit detailing the information that was disclosed compared with the information that was withheld, along with an explanation for withholding. The Department of Justice will work with CSC staff to prepare this affidavit.
In addition, in all cases of security reclassification reviews, the inmate must have access to a copy of the Security Reclassification Scale Functional Specification (scoring matrix). The following statement will from now on need to be included in the Assessment for Decision report:
“The inmate has been advised that he/she may have access to the Security Reclassification Scale Functional Specification on a CD-Rom at the institutional library.”
In the case of inmates who do not have access to the institutional library (e.g. placement in segregation), staff must provide the inmate with a hard copy of the Security Reclassification Scale Functional Specification.
How was this policy developed?
These amendments were developed by the Institutional Reintegration Operations Branch in cooperation with the Women Offender Sector, Preventive Security Intelligence Division, Security Operations Division and the Strategic Policy Division, as a result of a Supreme Court of Canada’s decision.
- Institutional Reintegration Operations
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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