Interjurisdictional Exchange of Service Agreements
In Effect: 2022-07-18
To provide corporate direction for the negotiation, implementation and management of Exchange of Service Agreements between the Minister of Public Safety and provincial/territorial jurisdictions
Applies to staff involved in the development, implementation and management of Exchange of Service Agreements
- Pursuant to CD 541 – Interjurisdictional Exchange of Service Agreements, the Director General, Executive Secretariat, has the authority to develop guidelines with respect to Exchange of Service Agreements (ESAs).
Phases in the Negotiation Process
Phase 1: Establish a Working Group and Steering Committee
- Negotiations are organized in a bilateral manner (e.g., at the 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.
- A steering committee, chaired by the Director General, Executive Secretariat, may oversee and direct the work of the working group. The committee members may include the Regional Deputy Commissioner, the Assistant Commissioner, Corporate Services, and Chief Financial Officer, and/or other senior managers, as appropriate.
- The working group will function as a negotiating team, conduct a detailed analysis and develop 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 will vary according to the nature of the agreement, but may include Regional and National Headquarters representatives from Intergovernmental Relations, Finance, Policy and Planning, Legal Services, Women Offender Sector and other areas as required (e.g., Policy Sector, Health Services Sector, Contracting and Materiel Services Directorate, Correctional Operations and Programs Sector, Corporate Services Sector).
Phase 2: Conduct Pre-Negotiation Analysis of Requirements
- 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 will eventually require ministerial and Governor in Council approval, and allows for appropriate consultation and involvement, particularly with officials from the Treasury Board of Canada Secretariat.
- All ESAs must take into account the mandate, program, policy, legal and financial considerations of CSC and the federal government (e.g., Treasury Board policies and regulations). The needs analysis focuses on the following aspects:
- definition of the target population, including variables such as location, gender identity or expression, 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.
- The information required for the needs analysis will be compiled by a regional coordinator/representative on the working group and subsequently analyzed by the working group. Defining these factors will lead 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, benefits, and feasibility 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’s Mission, CSC’s Values Statement and ESA Principles
- program implications
- financial implications
- CSC’s Corporate Business Plan.
Phase 3: Notify Officials of Proposed Negotiations
- Several measures 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, Governor in Council/Treasury Board approval.
- At a minimum of one year prior to the expiration of the current ESA, the Intergovernmental Relations Division will provide the Minister of Public Safety with an overview of the needs analysis, which is prepared in collaboration with the Regional Deputy Commissioner. The Commissioner, via the Intergovernmental Relations Division, will then request the Minister’s approval in principle to negotiate.
- Once the Minister provides the approval in principle, the Intergovernmental Relations Division drafts letters for ministerial signature to the Minister's provincial/territorial counterpart(s), proposing that negotiation of a mutually satisfactory agreement be initiated within proposed timeframes.
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 an outline of the negotiation project plan, which should include:
- negotiation objectives
- 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
- approval process
- 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.
Phase 4: Conduct Negotiations
- The working group will be 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 are identified by the working group.
- The working group chair will ensure the steering committee is fully briefed throughout the negotiation process.
Phase 5: Prepare Documentation
- The Generic ESA Template will be used for the drafting of all new ESAs. The template identifies the areas to be included in the proposed ESA. Flexibility and amendments to the template are permitted in collaboration with Intergovernmental Relations to allow for provincial/territorial variability.
- Current ESA agreements will be extended, via written correspondence, between the federal Minister and the provincial Minister/territorial counterpart(s).
- An agreement signed by the Minister must receive ministerial approval for amendments made to the basic intent of the document. Any amendments to the ESA that change the intent or scope or that have significant cost implications must be signed by the Minister and could require additional Governor in Council and/or 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 Governor in Council/Treasury Board approval process, thus providing operational flexibility in agreements approved by the Minister. Signing authority is delegated to the Commissioner (Deputy Head) for CSC and the Deputy Minister at the provincial/territorial level. For some amendments, the delegated authority will be the Regional Deputy Commissioner for CSC and the Assistant Deputy Minister for the province/territory.
- 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
- standard bed capacities
- detailed explanation of the calculation of the per diem payments based on the approved Chart of Accounts
- audits and evaluations.
Types of Payment Structures
- Payment structures/methodologies for the ESAs include:
- blended rate – the total operating costs of a group of provincial/territorial facilities divided by the total offender bed days (e.g., annual average offender population multiplied by 365 days) to arrive at a blended per diem rate. This model may be appropriate to establish a standard rate for all facilities in one jurisdiction, or a standard rate for facilities in the jurisdiction that accommodate a specific gender (e.g., a blended rate for all provincial correctional institutions for men)
- site/service-specific per diem rate – the total operating costs of one or of a number of provincial/territorial correctional institutions offering a specific service or 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.
- The terms and conditions under which additional charges for the provision of special services or accommodation will be allowed should be negotiated and clearly outlined within the agreement.
- Agreements are in effect for a specified term. ESAs usually cover a five-year period, with two possible extensions of five years each. The total duration of the agreement cannot exceed the duration approved by the Governor in Council.
Termination of Agreements
- Agreements must allow for termination by either party with a specified timeframe for notice. A timeframe for notice is also recommended should either party choose not to renew the agreement.
- In negotiating new agreements, the termination clause will include:
- the conditions under which the agreement may be terminated by either party
- the notification period for termination of an agreement, which is usually one year.
- A number of factors could result in a decision to terminate, renegotiate or renew an agreement, such as:
- 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 will 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
- As per the Generic ESA Template, an ESA will include a section that identifies the timing, conditions and basic procedures for renegotiating or amending the terms of the agreement.
- If amendments to an ESA are necessary, as outlined in the Phase 5: Prepare Documentation section, the required approvals will be determined mutually by Corporate Services, Legal Services, and the Intergovernmental Relations Division.
Related Legal Considerations
Role of Provincial/Territorial Parole Boards
- Some jurisdictions have their own parole boards; with the exception of offenders serving life or indeterminate sentences, these parole boards are the releasing authority for federal offenders transferred to those jurisdictions. The provinces/territories are responsible legally and financially for the supervision of transferred federal offenders released by these parole boards.
- Transferred offenders (both federal and provincial/territorial) are subject to the statutory release review provisions of the Corrections and Conditional Release Act (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
- detention in a penitentiary for an indeterminate period.
- If the agreement with the province/territory does not contain a clause with respect to subsection 746.1(1) of the Criminal Code, then prior to executing transfer of such cases, the Regional Deputy Commissioner will 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.
Phase 6: Obtain Internal/External Approval
- ESAs will undergo a complete planning, financial and legal services review during and after the negotiation phase. This review will 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. ESAs are also subject to the financial limits outlined in Financial Directive (FD) 350-3 – Contracting and the Treasury Board’s Directive on Delegation of Spending and Financial Authorities and Directive on the Management of Procurement.
- The Intergovernmental Relations Division will assist the National Headquarters Financial Strategies and Analysis Division to ensure the appropriate Treasury Board submission is completed to obtain required approvals. This submission must be signed by the Minister and forwarded to the Treasury Board for approval.
- Following Treasury Board approvals, the ESA is submitted to the Minister for approval and final signature and forwarded to the Minister’s provincial/territorial counterpart for their approval and signature.
- If changes are required to an existing agreement, the changes will be reviewed, on a case-by-case basis, to determine the necessary level of approval.
- Provincial/territorial jurisdictions are subject to their own approval process.
Phase 7: Finalize and Implement Agreement
- Once the Governor in Council/Treasury Board approval is obtained, the ESA is signed by the federal and provincial/territorial Ministers and the agreement is implemented.
- The implementation phase, which is a transition between negotiation and management of agreements, has three main purposes:
- to reinforce the intent of the agreement and ensure that the principles and philosophy, as well as the legal and financial considerations, are implemented in the spirit in which they were negotiated
- to transfer the lead role from National to Regional Headquarters
- to integrate the agreement into ongoing corporate planning and management processes.
- The Director, Intergovernmental Relations, 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 will develop written procedures for the ongoing management of the agreement.
- Refer to Annex C for the complete list of steps in the negotiation process.
Management of Agreements
- The Regional Deputy Commissioner will also put in place a process to ensure ongoing effective management of the agreements as well as to identify and address any issues early on.
Joint Management Committee Meetings
- The region and the respective province/territory will establish a Joint Management Committee comprised of representatives for each party to monitor and advise on the management of the ESA. The number of representatives will be established by each respective party. The frequency of the Joint Management Committee meetings is outlined in the ESA. If the current ESA does not indicate the frequency of Joint Management Committee meetings, the parties must meet (face-to-face or via tele/videoconference) at least once a year, preferably twice. The Regional Deputy Commissioner will provide the Director, Intergovernmental Relations, with a schedule of annual meetings, the agenda and minutes of the meetings, including a record of decisions and action taken, for future negotiation and audit purposes.
- The role of the Joint Management Committee is to:
- monitor the agreement
- advise the Commissioner and the provincial/territorial Deputy Minister on the ESA activities
- identify issues that affect the successful application of the agreement
- resolve issues that are of an operational nature or recommend resolution through an amendment to the agreement.
Audits and Evaluations
- The ESA 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 information from the Bed Utilization Monitoring System, established and maintained by the Intergovernmental Relations Division, can be used for two purposes:
- identify utilization of beds against expenditures captured through separately established financial reporting mechanisms
- provide data to analyze and evaluate the operation of agreements.
- In contrast to operational reviews and audits, which verify the accuracy of information, 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 will be negotiated and conducted on a mutual basis with the respective province/territory.
Planning and Management Considerations
Link ESAs 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 will ensure a balance between program and accommodation planning needs.
- Plans and forecasts for interjurisdictional transfers will 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, Intergovernmental Relations, maintains a monitoring system to track national bed utilization 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 of the fiscal year.
- The Regional Deputy Commissioner is responsible for monitoring and reporting on all regional ESA expenditures and for ensuring that ESA bed-day coding in the Resource Management Tool is consistent with Annex D – Bed Types Available to CSC Via ESAs.
- In addition to the financial monitoring system, the Regional Deputy Commissioner will report on an annual 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.
- Strategic Policy Division
Annex A- Cross-References and Definitions
FD 350-3 – Contracting
CD 541 – Interjurisdictional Exchange of Service Agreements
CD 701 – Information Sharing
CD 710-2 – Transfer of Inmates
CD 767 – Ethnocultural Offenders: Services and Interventions
Process Guide for Governor in Council Submissions (Other than Regulations)
Treasury Board Directive on Delegation of Spending and Financial Authorities
Treasury Board Directive on the Management of Procurement
Exchange of Service Agreement (ESA: an agreement between the Minister of Public Safety 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.
Offender: a person as described in subsection 2(1) of the CCRA.
Annex B- Elaboration of the Pre-Negotiation Process
|Establish Working Group
Esstablish Steering Committee
|Gathers and analyzes initial information
Oversees and directs the work of the working group
|Conduct needs analyses||Define target population; identify target population’s accommodation and/or program needs (in relation to CSC’s Mission, Values Statement and Corporate Objectives)
Define offender needs in the context of the federal correctional system
|Submissions to Treasury Board and Main Estimates|
|Define CSC’S 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?|
|Develop Alternatives||How can CSC’s objective(s) be accomplished?
|Assess Akterbatuves||Conduct a cost-benefit analysis:
|Recommendation||Determine the most appropriate and cost-effective option (maybe an ESA)|
Annex C- ESA Checklist – Phases in the Negotiation Process and Recommended Timeframes
|ESA Phases||Actions Required||General Timeframe||Office of Primary Interest||Office of Secondary Interest|
|Phase 1: Establish a working group and steering committee||a) Establish a working group led by the Regional Deputy Commissioner (RDC). The working group will consist of subject-matter experts (Regional Operations, Regional Headquarters [RHQ] Finance, Policy and Planning, Intergovernmental Relations [IGR] Division, Legal Services, Women Offender Sector and others, as required) working together to achieve an Exchange of Service Agreement||Start date: April 1st of the year proceeding implementation target date||RDC||Assistant Commissioner, Corporate Services (ACCS)/Deputy Chief Financial Officer (DCFO), Assistant Deputy Commissioner, Integrated Services (ADCIS), IGR, Legal Services|
|b) Establish a steering committee, as required, chaired by the 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||April||DGES||ACCS/DCFO, ADCIS, IGR|
|Phase 2: Conduct pre-negotiation analysis of requirements||c) Define objectives of both parties||
|RDC||RHQ, IGR, ACCS/DCFO, Legal Services|
|d) Conduct needs analysis – program, policy, legal and financial|
|e) Assess alternatives (e.g., cost-benefit analysis)|
|Phase 3: Notify officials of potential negotiations||f) Write briefing note to Commissioner/Minister regarding the intent to negotiate||April (or one year prior to expiration of current agreement||IGR||RDC|
|g) Prepare correspondence from the Minister of Public Safety to the respective provincial/territorial Minister indicating intent to negotiate||April||IGR||RDC|
|Phase 4: Conduct negotiations||h )Negotiate and agree on program, policy, legal and financial details||
|i) Ensure communication and coordination of next steps/ deadlines between parties|
|Phase 5: Prepare documentation||j) Draft agreement and facilitate review by stakeholders||
|k) Develop required Treasury Board submission||ACCS/DCFO||RDC, IGR,
|l) Send drafts to Treasury Board Secretariat for feedback||ACCS/DCFO|
|m) Incorporate all changes to documents||RDC/IGR/ ACCS/DCFO/
|Phase 6: Obtain internal/external approval||n) Seek agreement on final draft version of the ESA||
|o) Seek RDC written approval of final draft ESA||IGR||RDC|
|p) Translate agreement and relevant documents||IGR|
|q) Prepare briefing note for Minister’s approval of Treasury Board submission||ACCS/DCFO|
|r) Finalize Treasury Board submission and briefing note and obtain departmental sign-off (Chief Financial Officer Attestation, IGR, RDC, Legal Services, Commissioner, etc.)||ACCS/DCFO||RDC, IGR,
|s) Send submission and briefing note to Public Safety (for Minister’s approval)||ACCS/DCFO|
|t) Deliver final signed submission to Treasury Board Secretariat||ACCS/DCFO|
|Phase 7: Finalize and implement agreement||u) Prepare briefing note for Minister to sign agreement once Treasury Board approval is received||January||IGR||RHQ|
|v) Prepare correspondence for province to sign new agreement||January||IGR||Legal Services,
|w) Implement agreement||April||RDC||IGR|
|x) Commence reporting||August||RDC|
Annex D- Bed Types Available to CSC Via ESAs
- Newly Sentenced Not Yet Transferred – Provides for the accommodation of newly sentenced offenders beyond the 15-day waiver period. Pursuant to section 12 of the CCRA, all newly sentenced federal offenders must reside in a provincial facility for a minimum of 15 days (unless waived by the offender) after being sentenced. This allows the offender time to file an appeal and/or get their personal affairs in order. CSC does not pay for the accommodation during these 15 days or the initial transport to federal custody. However, if an offender waives this period or the period has expired, CSC is responsible for compensating the provinces/territories for the accommodation of the offender from the date of signing the waiver until they are transferred to a federal penitentiary.
Code in Resource Management Tool (RMT) as: Line Object 04809-ESA – Newly Sentenced, Inmate Not Yet Transferred
- Temporary Detention –Provides for the accommodation of federal offenders who have been apprehended by police while on parole or who have been suspended due to a breach of parole conditions. Though not used in all jurisdictions, in provinces/territories where the operational protocol is for police or Parole Officers to detain a federal offender in a provincial correctional or lock-up facility from the date of admission to the provincial/territorial facility until they are released or returned to federal custody (typically within 30 days), these beds are readily used. For coding and reporting purposes, this category also includes already serving newly sentenced offenders remanded back to federal custody.
Code in RMT as: Line Object 04800-ESA – Temporary Detention
- Institutional Transfer – Provides for the accommodation of federal offenders in provincial/territorial facilities where there are no federal facilities in the vicinity or in cases where an offender wishes to spend a portion or the remainder of their sentence in a provincial/territorial facility (to be closer to their home community or have access to specific programs or medical treatments, etc.). This bed type is rarely used except in Newfoundland and Labrador, where all federal offenders sentenced within the province must reside in a provincial facility pursuant to section 15 of the CCRA, and at the North Slave Correctional Complex in Yellowknife (as there are no federal facilities in the province/territory). There are also federally sentenced offenders serving their sentences within correctional facilities in the Northwest Territories.
Code in RMT as: Line Object 04801-ESA – Institutional Transfers
- Community Residential Facilities – Provides for the accommodation of federal offenders on parole in a provincially/territorially-owned community residential facility. Since CSC has contracts with numerous non-profit community service providers, these bed types are rarely used except in New Brunswick, where there are no other community residential service providers or federal facilities available to offer community accommodation to offenders on parole.
Code in RMT as: Line Object 04803-ESA – Provincial CRC Transfer Beds
- Hospital – Provides for the accommodation of a federal offender in a provincial/territorial hospital. It is noted that the long-term accommodation of offenders at these facilities are typically managed under separate agreements.
Code in RMT as: Line Object 04802-ESA – Provincial Hospital Beds
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