Bill C-83: An Act to amend the Corrections and Conditional Release Act and another Act

Tabled in the Senate, May 7th, 2019

Explanatory Note

The Minister of Justice prepares a “Charter Statement” to help inform public and Parliamentary debate on a government bill. One of the Minister of Justice’s most important responsibilities is to examine legislation for consistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for consistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act for consistency with the Charter. This review involved consideration of the objectives and features of the Bill.

What follows is a non-exhaustive discussion of the ways in which Bill C-83 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill. The recent decision of the Ontario Court of Appeal in Canadian Civil Liberties Association v. Canada, 2019 ONCA 243, and the Court’s analysis therein, have been taken into account in this discussion.   

Structured Intervention Units (sections 7, 12 and 15 of the Charter)

Clause 10 of Bill C-83 replaces the provisions of the Corrections and Conditional Release Act that authorize the use of administrative segregation in federal penitentiaries. The new provisions allow inmates to be transferred to structured intervention units (SIUs), a new correctional intervention model for inmates who cannot safely stay in the mainstream inmate population. Inmates in an SIU will receive structured interventions, enhanced mental health care, and programming tailored to address their specific needs. The goal is to treat the underlying causes of high risk behaviour, reduce the number of violent incidents in penitentiaries, and improve correctional outcomes such as rehabilitation.

Sections 7 and 12 of the Charter

Section 7 of the Charter guarantees to everyone the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Because the transfer of an inmate to an SIU would impose additional constraints and conditions on the inmate, it would engage their residual right to liberty and potentially their right to security of the person. The provisions authorizing the confinement of inmates in an SIU must therefore respect the principles of fundamental justice, including procedural fairness. One notable aspect of procedural fairness in this context is that the decision-maker imposing the measure must have an appropriate degree of independence and impartiality.

Other principles of fundamental justice require that the law authorizing the limit(s) in question must not be arbitrary, overbroad, or grossly disproportionate. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that impacts section 7 rights in a way that, while generally rational, goes too far by capturing some conduct unrelated to the law’s purpose. As explained by the Supreme Court of Canada, a grossly disproportionate law is one whose effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose.

Section 12 of the Charter provides that everyone has the right not to be subjected to any cruel and unusual treatment or punishment. Canadian courts have found that incarceration is not per se cruel and unusual, including when inmates are transferred to conditions that are more restrictive than the mainstream inmate population. However, as explained by the Supreme Court of Canada, such treatment may become cruel and unusual in circumstances where its effects are “so excessive as to outrage standards of decency.”

Bill C-83 includes provisions to define clearly the objectives of transferring an inmate to an SIU; require regular reviews by the institutional head (or in some cases, another official at an appropriate level), the Commissioner, and in certain circumstances, an independent external decision-maker, in relation to an inmate’s continuing confinement in an SIU; ensure that the conditions in SIUs promote rehabilitation and reintegration of inmates; and enhance the role of health care professionals. The following considerations support the consistency of the SIU provisions with the above-noted Charter rights.

First, the provisions specify the safety- and security-related reasons why designated staff members can transfer inmates to an SIU. They also require regular review of an inmate’s confinement in an SIU in light of these permissible reasons, and require the confinement to end as soon as possible. The inclusion of these provisions proscribes arbitrary or overbroad impacts on liberty and security of the person, by requiring that an inmate’s confinement in an SIU always has a rational connection to the objectives of the SIU scheme. These objectives, which are related to safety, security and rehabilitation of the inmate, are also explicitly stated in the provisions.

Second, the decision whether to continue an inmate’s confinement in an SIU can be made in a procedurally fair manner. The provisions require the initial transfer decision to be made by a designated staff member who holds a position lower in rank than the institutional head. The staff member must maintain a record of the transfer, including the reasons for it and any alternative measures that were considered. Notice of the authorization to transfer and the reasons must be provided to the inmate orally within one working day of the initial transfer, and in writing within two working days. Then, the institutional head must decide, within five working days of the transfer, whether the inmate should remain in SIU. The provisions define the grounds for the institutional head’s decision (again related to safety and security), along with some factors that must be taken into account. This decision-making process respects impartiality and independence requirements by ensuring that in conducting the fifth working day review, the institutional head is neither chosen by the staff member whose initial transfer decision is under review, nor reporting to or otherwise in the sphere of influence of that staff member. Procedural aspects of this decision-making process will be further prescribed by law in regulations made by the Governor in Council.

Third, the provisions set out several requirements for the conditions of detention in SIUs, and seek to ensure accountability in meeting those requirements. The provisions state the general principle that an inmate in an SIU has the same rights as other inmates, except for those that cannot be exercised due to limitations specific to the SIU or security requirements. The provisions require that inmates in an SIU be afforded the opportunity to have a minimum of four hours a day outside of their cell. Time spent taking a shower will not count towards the four hours. There is also a requirement to afford the opportunity to have meaningful human contact: a minimum of two hours a day interacting with others, including leisure time and rehabilitation programs. Every reasonable effort must be made to ensure that the meaningful human contact is not mediated or interposed by physical barriers. For each instance where such barriers exist, a record must be kept.

These required daily opportunities must take place between the hours of 7:00 am and 10:00 pm. The requirements are subject to defined exceptions, for example where the inmate refuses the opportunity or does not comply with reasonable instructions to ensure safety. However, a record must be kept of any instance where these exceptions are relied on. Further, if for five consecutive days or for a total of 15 days during any 30-day period, an inmate has not spent a minimum of four hours a day outside the cell or interacted for a minimum of two hours a day with others, an independent external decision-maker is to determine, as soon as practicable, whether the Correctional Service of Canada has taken all reasonable steps to provide, and to encourage the inmate to avail themselves of these opportunities. Upon determining that the Service has not taken all reasonable steps, the independent external decision-maker may make any recommendation they consider appropriate to remedy the situation. If, within seven days of receiving recommendations, the Service fails to satisfy the decision-maker that it has taken all reasonable steps to provide the inmate with such opportunities, the decision-maker is to direct the Service to remove the inmate from the SIU.

Fourth, the provisions require regular review of the necessity and appropriateness of each inmate’s continuing confinement in an SIU. If the outcome of the fifth working day review is to continue the SIU confinement, then the institutional head must reconsider the inmate’s case within 30 calendar days after the inmate was first transferred to an SIU. The institutional head is required to visit the inmate in question before making this determination. If that visit is not face to face or takes place through a door hatch, a specific record of those circumstances is required.

Thereafter, the inmate’s continued confinement in an SIU is to be reviewed every 30 calendar days. At day 60 it is reviewed by the Commissioner or a designate, as set out in regulations. Thirty calendar days after any decision by the Commissioner that the inmate should remain in an SIU, an independent external decision-maker is to determine whether the inmate should remain in the SIU and this decision is binding. A review follows every thirty calendar days that the inmate remains in the SIU, to be performed by the Commissioner (or a designate) and the independent external decision-maker on an alternating basis.

Review of the inmate’s case is also required if the inmate has been repeatedly authorized to be transferred to an SIU within a certain period of time. This review scheme, including the number of authorizations required to “trigger” the mandatory review, will be prescribed by law in regulations.

Fifth, the provisions enhance the role of registered health care professionals, by requiring that they regularly monitor the well-being of inmates in SIUs and have their views in this regard considered by the institutional head. The provisions require that a registered health care professional visit each inmate in an SIU at least once a day. That professional is specifically authorized to make recommendations to the institutional head that a particular inmate’s conditions of confinement be altered, and the institutional head is required to consider such recommendations as soon as practicable. The professional is also authorized to recommend that the inmate not remain in SIU. Such a recommendation requires the institutional head to conduct, as soon as practicable, a full review of the inmate’s continuing confinement. The institutional head is required to visit the inmate in question before making this determination. If that visit is not face to face or takes place through a door hatch, a specific record of those circumstances is required.

If the institutional head, after performing the requisite review, does not follow the recommendations, this automatically triggers a review and determination by a committee of staff members who hold a position higher in rank than that of institutional head. If the committee agrees with the recommendations, its determination is binding on the institutional head. If the committee disagrees with the recommendations, an independent external decision-maker is to determine, as soon as practicable, whether the conditions of confinement should be altered or the inmate not remain in the SIU, in accordance with the recommendations of the registered health care provider, and this decision is binding.

In any of the above instances triggering a determination by an independent external decision-maker, the Service must provide the decision-maker with all information under its control that is relevant to the determination and allow the decision-maker to communicate with the inmate in question. Further, the decision-maker must provide the inmate, in writing, the information that is to be considered in making their determination, or a summary thereof, and must ensure that the inmate is given an opportunity to make written representations concerning the determination.

Finally, the provisions proposed by Bill C-83 will be applied within the framework of generally applicable safeguards under the Corrections and Conditional Release Act, including:

Section 15 of the Charter

In addition to the above-noted considerations with respect to sections 7 and 12 of the Charter, the SIU provisions also have potential impacts on subsection 15(1) of the Charter, which protects equality rights. Subsection 15(1) provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, including on the basis of race, ethnic origin or mental or physical disability. Intervention models such as SIUs may potentially engage equality rights to the extent confinement in SIUs disproportionately affects persons on the basis of such characteristics.

Bill C-83 includes safeguards to avoid such adverse impacts. These safeguards, which were described in more detail above, include: (1) regular individualized assessment of each inmate’s circumstances and experience of SIU confinement; (2) consideration of the unique circumstances of Indigenous inmates (Indigenous social history); (3) the enhanced role of registered healthcare professionals; and (4) existing paragraph 87(a), requiring consideration of an inmate’s state of health and health care needs, which is amended by Clause 29 to specifically apply to decisions relating to confinement in an SIU.

Elimination of disciplinary segregation (section 12 of the Charter)

Clause 11 eliminates segregation from other inmates as a potential sanction, where an inmate is found guilty of a serious disciplinary offence under the Corrections and Conditional Release Act. As a result, the only available sanctions for disciplinary offences are those currently listed at paragraphs 44(1)(a) to (e) of the Corrections and Conditional Release Act, such as a loss of privileges, a fine, or a requirement to perform extra duties.

The Corrections and Conditional Release Act and its Regulations currently allow sanctions of disciplinary segregation for up to 30 days per offence, for a total period that does not exceed 45 days. In certain circumstances, such a sanction has the potential to engage section 12 of the Charter, if it is considered a cruel and unusual treatment in light of its impacts on the specific inmate in question. Eliminating disciplinary segregation therefore promotes the values protected by section 12.

Search and seizure powers (section 8 of the Charter)

Clauses 13 to 21 re-authorize physical searches of inmates, visitors and staff members in penitentiaries in order to protect the security of penitentiaries and those in them, and also authorize the use of body scans as tools to conduct such searches.

Section 8 of the Charter protects against unreasonable searches and seizures. A search or seizure will be reasonable if it is authorized by law, the law itself is reasonable in that it strikes an appropriate balance between privacy interests and the state interest being pursued, and the search is carried out in a reasonable manner. Because the authorized searches have the potential to interfere with personal privacy interests, they may engage section 8.

The following considerations support the consistency of these powers with the Charter. The purpose of the various search powers is to protect the security of penitentiaries and the people in them, not to pursue penal investigations. In the necessarily highly controlled environment of penitentiaries, individuals in penitentiaries – whether as inmates, visitors or staff – have a reduced expectation of privacy. The search powers are appropriately tailored to the circumstances. For example, less intrusive searches are authorized on a lower burden of proof (e.g., no individualized suspicion) with lesser safeguards (search at the discretion of a staff member), whereas more intrusive searches require a higher burden of proof (e.g., reasonable grounds to believe) and higher safeguards (only with the approval of the institution head).

The circumstances under which body scan searches may be conducted are not specified in Bill C-83, but will be prescribed by law in regulations. To comply with section 8 of the Charter, these regulations together with the authority in Bill C-83 to conduct body scan searches will have to place reasonable limits on the power to use body scans.

Health care (section 7 of the Charter)

Section 7 of the Charter guarantees to everyone the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

State actions that create a risk to health by preventing access to health care deprive individuals of their right to security of the person. Clauses 28 and 30 safeguard against such actions and promote the values protected by section 7 by requiring the Correctional Service of Canada to support the autonomy and independence of health care professionals treating inmates, and by empowering inmates to better advocate for their health care.

Indigenous social history (section 15 of the Charter)

Clause 23 requires the Service to take into account Indigenous social history in decisions affecting an Indigenous offender, except for decisions respecting the assessment of the risk posed by an Indigenous inmate. In making the relevant decisions, the Service is required to consider the “systemic and background factors” that affect Indigenous peoples of Canada and have contributed to the overrepresentation of Indigenous persons in the inmate population, and may have contributed to the offender’s involvement in the criminal justice system. The provision also requires that the “Indigenous culture and identity of the offender” be taken into account.

Subsection 15(1) of the Charter guarantees equal benefit of the law without discrimination, including on the basis of race and ethnic origin. Clause 23 potentially provides a benefit to Indigenous offenders that is not provided to other inmates. Although race- or ethnicity-based distinctions can engage the protection of subsection 15(1), mandating the Service to consider the unique experiences of Indigenous persons in Canadian society and their related drastic over-representation in Canadian prisons, promotes the substantive equality of Indigenous offenders. Achieving substantive equality for disadvantaged groups often requires making distinctions. Subsection 15(2) of the Charter clarifies that subsection 15(1) does not preclude laws, programs or activities that have as their object the amelioration of conditions of disadvantaged individuals or groups, including those that are disadvantaged because of race, or ethnic origin. This is the purpose of clause 23.

Access to audio recordings of Parole Board hearings (section 2(b) of the Charter)

Clause 34 of the Bill amends subsection 140(13) of the Corrections and Conditional Release Act to provide that a victim or other person referred to in subsection 142(3), whether or not they attended a parole hearing, is entitled on request after the hearing to listen to an audio recording of the hearing. It further amends subsection 140(13) to provide a new basis on which the Parole Board of Canada may limit access to any portion of the audio recording. Currently the Parole Board may limit access to any portion of the audio recording that it considers could reasonably be expected to jeopardize the safety of any person or to reveal a source of information obtained in confidence. The amendment permits the Parole Board to also limit access to the extent necessary to protect any privacy interest that is not clearly outweighed by the interest of the victim or person seeking to listen to the audio recording.

Section 2(b) of the Charter provides that everyone has freedom of thought, belief, opinion and expression, and includes freedom of the press and other media of communication. Section 2(b) may also provide a limited right of access to documents in the possession of the government. Such access is constitutionally protected only where, without the desired access, meaningful public discussion and criticism on matters of public interest would be substantially impeded. However, even where a case for public access is established, access may be declined based on countervailing considerations.

The following considerations support the consistency of this provision with the Charter. The Corrections and Conditional Release Act already permits observers to attend Parole Board hearings in person. The proposed amendment broadens the scope of people who can request access to the audio recordings after the hearing has taken place. This may improve victims’ access to audio recordings of Parole Board hearings. At the same time it permits the Parole Board to limit access to portions of the recording to the extent necessary to protect the safety of any person or where the privacy interests of any person clearly outweigh the interest of the victim or person seeking access. The Parole Board, in exercising this discretion, is to balance the various rights and interests at stake, including those of victims to listen to the recording and the privacy rights of offenders.