Vol. 149, No. 13 — July 1, 2015

Registration

SOR/2015-171 June 19, 2015

CORRECTIONS AND CONDITIONAL RELEASE ACT

Regulations Amending the Corrections and Conditional Release Regulations

P.C. 2015-863 June 18, 2015

His Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to section 96 (see footnote a) of the Corrections and Conditional Release Act (see footnote b), makes the annexed Regulations Amending the Corrections and Conditional Release Regulations.

REGULATIONS AMENDING THE CORRECTIONS AND CONDITIONAL RELEASE REGULATIONS

AMENDMENTS

1. Section 2 of the Corrections and Conditional Release Regulations (see footnote 1) is amended by adding the following in alphabetical order:

“secure area” means an area within a penitentiary that is designated by the institutional head by means of institutional standing orders for that purpose. (secteur de sécurité)

2. (1) Paragraph 47(a) of the Regulations is replaced by the following:

(2) Paragraph 47(c) of the Regulations is replaced by the following:

3. Paragraph 48(a) of the Regulations is replaced by the following:

4. Subsection 54(1) of the Regulations is replaced by the following:

54. (1) A staff member may conduct a routine non-intrusive search or a routine frisk search of a visitor, without individualized suspicion, when the visitor is entering or leaving a penitentiary or a secure area.

5. Section 56 of the Regulations is replaced by the following:

56. A staff member may conduct a routine non-intrusive search or a routine frisk search of another staff member, without individualized suspicion, when that other staff member is entering or leaving the penitentiary or a secure area.

6. Paragraph 58(1)(c) of the Regulations is replaced by the following:

7. Paragraph 90(1)(a) of the Regulations is replaced by the following:

8. The portion of subsection 91(1) of the Regulations before paragraph (a) is replaced by the following:

91. (1) Subject to section 93, the institutional head or a staff member designated by the institutional head may authorize the refusal or suspension of a visit to an inmate where the institutional head or staff member suspects on reasonable grounds

COMING INTO FORCE

9. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Correctional Service of Canada (CSC) currently lacks certain authorities in the Corrections and Conditional Release Regulations (the Regulations) to increase routine searches and restrict visits in order to prevent the entry of drugs and contraband into Canadian penitentiaries. For example, the CSC does not have sufficient authority to conduct routine searches of individuals when entering or leaving certain areas of a penitentiary. The CSC also lacks the authority to define certain areas within a penitentiary as “secure areas” for the purposes of conducting routine searches of individuals moving in and out of that area.

Background

The availability of drugs within prisons is a problem that correctional penitentiaries around the world struggle with. Canada is not immune to this problem. Prisons are small communities, and like any community, every day hundreds of people pass in and out. Prison administrators, staff, trades contractors, instructors, and volunteers all enter to work and exit at the end of their shift. Garbage trucks make pick-ups. Food supplies are delivered. Canada Post and courier services deliver mail, court records, books, and packages. Inmates being gradually released leave for a few hours or days on temporary passes or supervised work crews, and come back. There are literally hundreds of movements in and out, every day of the week and all of them present opportunities for contraband and drugs to be smuggled into prisons.

The presence of drugs in CSC penitentiaries undermines the CSC mission in several ways

An independent panel was appointed in 2007 to review CSC’s operations. In October 2007, the Panel submitted its report, “A Roadmap to Strengthening Public Safety,” to the Minister of Public Safety. Key among the Panel’s recommendations were those aimed at eliminating drugs from CSC’s penitentiaries. The Panel recommended that the CSC become more rigorous in its approach to drug interdiction by enhancing its control and management of the introduction and use of illicit substances. The Panel further recommended that the CSC incorporate more stringent control measures (i.e. elimination of contact visits) if the results of an evaluation conducted by the Service do not support contact visits in certain cases. When there is reasonable proof that the visitor poses a threat to the safety and security of the penitentiary, the Panel also recommended that the CSC should immediately limit and/or eliminate the use of contact visits.

The CSC currently works towards eliminating the flow of drugs into penitentiaries in a number of ways including the use of: drug detector dogs; electronic screening technologies such as ion mobility spectrometry devices; and various types of searches (e.g. frisk). Despite the use of these tools, further authority to conduct searches and restrict visits will assist the CSC in reducing the flow of drugs into federal penitentiaries.

Objectives

The objective of the amendments is to prevent drugs and contraband from entering into Canadian penitentiaries.

Description

In general, the regulatory amendments will give the CSC the authority to further restrict inmates’ visits, when necessary, and will also give the CSC the authority to conduct additional searches on inmates, staff, and visitors. These amendments will assist the CSC in preventing drugs and contraband from entering penitentiaries. Before describing the specific nature of the amendments, it is necessary to introduce the concepts of “suspicion” and “belief” because these concepts are integral to some of the amendments themselves.

Concepts of “suspicion” and “belief”

The difference between suspicion and belief is the degree of certainty that the decision maker has concerning the facts in question. “Reasonable grounds to believe” requires an objective basis for the belief in the alleged facts based on compelling and credible information that can be objectively established. The lower standard of “reasonable grounds to suspect” calls for a constellation of objectively discernible facts which give rise to the suspicion of the criminal activity or a risk to public safety.

In practical terms, the concept of suspicion is based on possibility rather than probability. To meet the test of reasonable grounds to suspect, there must be some indication that an individual possibly possesses contraband or evidence of some illicit activity. The standard of reasonable grounds to believe is a higher standard that requires something more than mere suspicion. This is still less than the standard applicable in civil matters of proof on a balance of probabilities, which would require a correctional officer to be more than 50% sure that an individual is carrying contraband or evidence of illicit activity.

Different kinds of searches require different degrees of probability, for example, a non-routine frisk search requires suspicion that an inmate possibly possesses contraband, while a non-routine strip search requires belief that the inmate probably possesses contraband. A description of routine searches is provided below.

A routine strip search is a visual inspection of the naked body and a search of all clothing, things in the clothing, and other personal possessions that the person may be carrying.

A routine non-intrusive search is a search of a non-intrusive nature of the clothed body by technical means, for example, a walk through metal detector X-ray and ion mobility spectrometry device. It includes a search of personal possessions, including clothing, that the person may be carrying and any coat or jacket that the person has been requested to remove.

A routine frisk search is a manual search, or a search by technical means of the clothed body and a search of personal possessions, including clothing, that the person may be carrying. This includes a search of any coat or jacket that the person has been requested to remove.

Visiting amendments

The Regulations state that every inmate shall have a reasonable opportunity to meet with a visitor without a physical barrier to personal contact unless the barrier is necessary for the security of the penitentiary or the safety of any person. The legal test that the institutional head must use to determine whether there are security concerns is “believes” on reasonable grounds that the barrier is necessary. The amendments replace the legal test of “believe” with “suspect” on reasonable grounds that the barrier is necessary.

The amendments also modify section 91 of the Regulations, which deals with the suspension or refusal of a visit. The institutional head may now authorize the refusal or suspension of a visit to an inmate if he or she suspects on reasonable grounds that during the course of the visit the inmate or visitor would jeopardize the security of the penitentiary or the safety of any person, or commit a criminal offence. The amendments replace the legal test of “believe” with “suspect” on reasonable grounds.

Searching amendments

The amendments related to the searching provisions concern the CSC’s authority to conduct routine frisk, routine non-intrusive and routine strip searches of inmates entering or leaving a penitentiary or a secure area of a penitentiary. Some of these amendments will authorize additional routine searches of staff, and visitors/ contractors in certain prescribed circumstances. For example, a staff member will be able to conduct a routine non-intrusive search or a routine frisk search of a visitor, without individualized suspicion, where the visitor is entering or leaving the penitentiary or a secure area of a penitentiary.

The term “secure area,” which is currently not part of the Regulations, will be added to section 2 of those Regulations and be defined as an area within the penitentiary designated by the institutional head by means of institutional standing orders for that purpose. The standing order will be made available to staff and inmates so that they are aware of the areas within the penitentiary that have been designated as a secure area. Also, the CSC will use signage to denote an area as a secure area and to indicate that routine searches may be conducted when entering or leaving the secure area.

The amendments will impact inmates, staff and visitors/ contractors in the following manner:

Inmates

Inmates may be subjected to routine non-intrusive searches or routine frisk searches where they are entering or leaving a secure area of a penitentiary. Inmates may be subjected to a routine strip search where they are leaving a secure area of a penitentiary.

Staff

Staff may be subjected to routine non-intrusive searches or routine frisk searches when they are entering or leaving a secure area of a penitentiary. Currently, staff may be subject to routine non-intrusive searches or routine frisk searches when entering or leaving the penitentiary. The Regulations will give the authority to conduct an additional routine search when entering or leaving a secure area of a penitentiary.

Visitors/Contractors

Currently staff may conduct a routine search where a visitor is entering or leaving the penitentiary. The amendments will allow staff to conduct a routine non-intrusive search or a routine frisk search where the visitor is entering or leaving a secure area of a penitentiary.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to this proposal, as there are no costs to small business.

Consultation

CSC identified the following stakeholders as having an interest in or being impacted by the amendments: inmates incarcerated within federal penitentiaries, staff, unions, visitors, contractors, the Office of the Correctional Investigator, and non-governmental organizations that work with the CSC. During July and August 2012, materials, including fact sheets, questions and answers, and a draft consultation copy of the Regulations, were sent to these groups for consultation purposes.

The main views of each group are summarized below.

Inmates: Inmates were generally not supportive of the additional searches that may now take place when entering or leaving a secure area. They questioned what specific areas would be defined as secure areas. Inmates expressed concern that their visitors would be treated as “inmates” by being subjected to additional searches. Inmates also expressed concern that their visits would be negatively impacted and possibly denied.

Staff/Unions: Staff and unions were supportive of the changes to all areas and commented that these changes would contribute to a safer penitentiary environment and would assist in decreasing the amount of drugs and contraband within penitentiaries.

Visitors: Visitors expressed concern that they could be subject to more than one search during a visit. Some visitors indicated that the additional searches when entering or leaving a secure area could make the penitentiary environment safer for inmates and staff. With respect to the change from “reasonable grounds to believe” to “reasonable grounds to suspect,” some visitors were not supportive of this change. Visitors expressed the concern that this change could increase the probability that they would be forced to have a non-contact visit.

Contractors/Volunteers: Those who responded were supportive of these amendments and noted that they would lead to a safer penitentiary environment for everyone. Most stakeholders had questions regarding the definition of “secure area” and indicated that the Regulations need to provide more details regarding which areas within a penitentiary would be classified as “secure areas.”

The Regulations were published in the Canada Gazette, Part I, on May 10, 2014, followed by a 30-day comment period. Due to the fact that federally incarcerated inmates cannot access the Canada Gazette via the Internet, the CSC provided consultation materials to the inmate committees in all federal penitentiaries. Notices were also posted at the principal entrance of all penitentiaries to inform staff, unions and visitors that they could participate in the consultation by accessing the Canada Gazette Web site. The CSC received one comment from the general public and four from non-governmental organizations in the criminal justice field (Prisoner’s Legal Services, the St. Leonard’s Society, the Canadian Families and Corrections Network and the Conseil des églises pour la justice et la criminologie du Québec). Inmates and staff also provided comments.

The main views of each group are summarized below.

Inmates: Inmates were generally not supportive of the amendments and stated that the amendments contravene their Charter rights. They questioned what specific areas would be defined as secure areas and expressed concern that the entire penitentiary would be considered a secure area. Inmates expressed concern that the amendments violated their right to have visits and that the changes will lead to their visits being denied. Inmates expressed that the CSC should ensure that every reasonable alternative to a non-contact visit is explored prior to imposing a non-contact visit and that decisions on visits should be based on verified information.

Staff: Comments indicated that these amendments will assist staff to intercept contraband from entering institutions. The amendments will be beneficial for minimum security penitentiaries that do not have the same security controls as medium and maximum security penitentiaries. Staffing issues will need to be considered prior to implementation. Also, the designation of secure areas should be relatively consistent across the country while recognizing that there also needs to be some flexibility when dealing with emergency situations. Comments indicated that these amendments could assist inmates who are trying to make positive changes.

Prisoner’s Legal Services and St. Leonard’s Society: Both organizations expressed concern regarding the change of the test from “believe on reasonable grounds” to the lower standard of “suspect” on reasonable grounds. They expressed that “reasonable grounds to suspect” is too subjective and will not provide CSC staff with clear, factual and objective guidance to make fair and safe decisions. They also expressed that the amendments focus exclusively on enforcement by providing the CSC with greater authority to search and restrict visits and not enough on harm reduction strategies to assist inmates with substance abuse problems. Both organizations stated that the CSC ought to invest greater resources in prevention, and treating offenders with substance abuse problems.

After considering the consultation feedback, the CSC remains confident that these additional measures are necessary to prevent the flow of contraband and drugs from entering CSC penitentiaries. The goal of these amendments is to provide the CSC with additional tools to prevent the flow of contraband and drugs from entering CSC institutions. Contraband items that enter into the CSC’s institutions pose a threat to public safety and to the safety of staff, inmates and visitors. Contraband, as defined in the Corrections and Conditional Release Act includes intoxicants, weapons, explosives, bombs, currency when possessed without prior authorization, or any item that could jeopardize the security of the penitentiary or the safety of persons when that item is possessed without prior authorization.

These amendments will have no impact on existing complementary measures used by the CSC to assist offenders with substance abuse problems. The CSC provides a range of internationally accredited substance abuse programs to offenders whose dependence on substances is related to their criminal behaviour. The more significant the offender’s needs, the higher the intensity of intervention provided. There are also substance abuse programs designed specifically for women and Aboriginal offenders.

The additional authorities provided by these amendments are consistent with the CSC’s legislative framework and with the Canadian Charter of Rights and Freedoms.

Rationale

In order to reduce the flow of contraband and drugs into penitentiaries, the CSC needs to add to the tools that are currently available to address this problem. In recent years, the CSC has implemented non-legislative and non-regulatory measures to keep drugs from entering penitentiaries. For example, the CSC increased perimeter control measures and increased the use of detector dogs. While these measures have assisted the CSC in addressing this problem, greater results will be achieved by increasing the Service’s ability to conduct routine searches and restrict visits when necessary. The CSC can only be granted additional authority to search and restrict visits via amendments to the Regulations.

Implementation, enforcement and service standards

Following the approval of the Regulations, the CSC will make the necessary changes to various internal policies related to searching and visiting (e.g. Commissioners’ Directives 566-7 — Searching of Inmates, 566-8 — Searching Staff and Visitors and 559 — Visits.

With respect to the implementation of the secure area concept, prior to implementing these amendments, the national headquarters will develop a guide for institutional heads to assist in designating secure areas. The guide will assist in achieving some consistency across all institutions, while recognizing that some sites will have unique needs due to infrastructure and type of inmate population. Signage will be posted at the secure area to clearly indicate that the area is designated as “secure.” The institutional head will set out in a standing order all areas within the institution that are designated as secure areas. The standing order will be made available to inmates and staff.

Prior to implementing the visits amendment, the CSC will amend Commissioner Directive 559 — Visits, to reflect the change in the legal test from “reasonable grounds to believe” to “reasonable grounds to suspect.” Though the legal test will change, the CSC will continue to follow the process outlined in Commissioner Directive 559 — Visits regarding the refusal, suspension and restriction of visits. It is important to note that visits will not automatically be suspended, denied or restricted when staff have reasonable grounds to suspect. As is currently the case, action will only be taken following the institutional head’s review of a threat risk assessment. Inmates will continue to retain the right to grieve the decision to deny, suspend or restrict their visit.

In-house communication material will be distributed to internal and external stakeholders, including national and regional correctional officials and institutional heads in order to advise them of the changes to searching and visiting policies. Any necessary staff training will be provided at local operational sites, consistent with ongoing professional development efforts.

Contacts

Luisa Mirabelli
Portfolio Manager
Strategic Policy
Correctional Service of Canada
340 Laurier Avenue West
Ottawa, Ontario
K1A 0P9
Telephone: 613-992-9271
Email: Luisa.Mirabelli@csc-scc.gc.ca

Phil Higo
Director
Strategic Policy
Correctional Service of Canada
340 Laurier Avenue West
Ottawa, Ontario
K1A 0P9
Telephone: 613-943-5299
Email: Phil.Higo@csc-scc.gc.ca