Significant Amendments to the CCRA proposed in Bill C-43
(excerpted from Graham Stewart and Michael Jackson’s commentary)
In December 2007, the Correctional Services Canada (CSC) Independent Review Panel released its final report outlining recommendations for the Government of Canada. The Panel was assigned the task of completing a review of CSC’s operational priorities, strategies and business plans. The report, entitled A Roadmap to Strengthening Public Safety, contained 109 recommendations and focused on five key areas: increasing offender accountability; eliminating drugs from prisons; developing employability/employment skills; renewing physical infrastructure; and, eliminating statutory release and moving to earned parole. In June 2009, the Honourable Peter Van Loan, Minister of Public Safety, introduced in Parliament proposed legislative amendments to the CCRA. The amendments are intended to address the recommendations of the Roadmap to reflect in legislative form a new approach to corrections, one that puts a greater focus on public safety and prisoner accountability so that the Canadian value of “earning your way” becomes a core concept.
1.1 Amendments to s. 3 and s. 4
The Bill would amend sections 3 and 4 in significant ways. Section 3 currently provides:
The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by
(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and
(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.
S.4 provides in relevant part:
4.The principles that shall guide the Service in achieving the purpose referred to in section 3 are
(a) that the protection of society be the paramount consideration in the corrections process;
The Bill would move 4(a) into a new section 3.1. As the CCRA currently exists, the overarching purpose of the criminal justice system -the maintenance of a just, peaceful and safe society -is given definition by the sub-clauses that specify the means through which correctional authorities contribute to that broader goal through safe and humane treatment and reintegration. Isolating public safety as a stand alone principle in an interpretative vacuum as to what that term actually means for correctional decision making does nothing to further the purposes of corrections.
Section s. (4)d currently reads:
(d) that the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders;
Bill C-43 would change the Act to read:
the Service uses measures that are consistent with the protection of society, staff members and offenders and that are limited to what is necessary and proportionate to the objective for which they are imposed;3
If it is felt that a clarification to this section is required to reflect evolving human rights standards, Bill C-43 should be amended to read:
the Service uses the least restrictive measures that are consistent with the protection of society, staff members and offenders and are limited to what is necessary and proportionate to the objective for which they are imposed;
Bill C-43 proposes amendments to other sections that currently use the language of least restrictive measures. Thus the Bill would amend s.28 which deals with the placement and transfer of prisoners transfer by changing the first part of the section which currently reads:
Where a person is, or is to be, confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which the person is confined is one that provides the least restrictive environment for that person, taking into account…
to now read:
If a person is or is to be confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which they are confined is one that provides them with an environment that contains only the necessary restrictions, taking into account…
The removal of the “least restrictive” language is a continuation of CSC’s efforts to purge the CCRA of this vital check on correctional authority. Here again no good rationale is offered for the change. We recommend that if any amendment is to be made it incorporate the existing language so the section read:
If a person is or is to be confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which they are confined is one that provides them with the least restrictive environment that contains only the necessary restrictions, taking into account…
1.2 The Principle of Retained Rights
Section 4(e) of the CCRA articulates another fundamental cornerstone of Canadian correctional law, the principle of retained rights. The section provides:
…offenders retain the rights and privileges of all members of society, except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence.”
Bill C-43 proposes a change to the wording of the principle so that it would read:
…offenders retain the rights of all members of society except those that are, as a consequence of the sentence, lawfully removed or restricted;
Dropping any reference in the CCRA to retained “privileges” and authorizing “incentives” is a thinly disguised attempt to change -for which we can read toughen -the conditions of confinement. Here again the passage of the amendment will send a message to those administering penitentiaries -the keepers -and those experiencing the pains of imprisonment-the kept – that our national commitment to maintaining human rights and humane prison conditions is waning at a time when its reinvigoration is most needed.
1.3 A Confusion of Responsibilities
Bill C-43 proposes a further amendment to the principles of corrections and conditional release that might appear on its face to be a small change to the CCRA although, in fact, it reflects a significant and dangerous distortion of responsibilities within the criminal justice system. Under the Bill s.4(b) -to be renumbered 4(a)-one of the principles that guide the Service in achieving the purpose referred to in section 3 would read (with the new text bolded);
the sentence is carried out having regard to all relevant available information, including the stated reasons and recommendations of the sentencing judge, the nature and gravity of the offence, the degree of responsibility of the offender, information from the trial or sentencing process, the release policies of and comments from the National Parole Board and information obtained from victims, offenders and other components of the criminal justice system.10
Introducing selectively the language of sentencing, the exclusive prerogative of the judiciary, into the principles under which the correctional authorities are to administer the sentence is, in fact, a wholly objectionable and unacceptable confusion of the distinct responsibilities of the judiciary and corrections.
There is a parallel amendment to the section that sets out the principles guiding the Parole Board, which brings with it the same confusion of responsibilities. A judge knows that parole eligibility for most occurs at one-third and that the least restrictive measures principle applies in the context of risk assessment regarding gradual release. Bringing consideration of seriousness and degree of responsibility into correctional decision making – beyond consideration of risk – distorts the original sentence by making it much more onerous than the judge intended.
1.5 Conditions of confinement and “subclassifications”
Bill C-43 contains several amendments that are “sleepers”. On their face and in the absence of historical context it is unlikely these amendments would attract much attention. Their intent and implication are not fully identified in the information package accompanying the Bill yet they raise very significant human rights issues. They read:
15.1 (1) The institutional head shall cause a correctional plan to be developed in consultation with the offender as soon as practicable after their reception in a penitentiary. The plan is to contain, among others, the following:
.(a) the level of intervention in respect of the offender’s needs; and
.(b) objectives for
.(i) the offender’s behaviour, including
.(A) to conduct themselves in a manner that demonstrates respect for other persons and property,
.(B) to obey penitentiary rules and respect the conditions governing their conditional release, if any,
.(ii) their participation in programs, and
(iii) the meeting of their court-ordered obligations, including restitution to victims or child support.
.(2) The plan is to be maintained in consultation with the offender in order to ensure that they receive the most effective programs at the appropriate time in their sentence to rehabilitate them and prepare them for reintegration into the community, on release, as a law-abiding citizen.
.(3) In making decisions on program selection for — or the transfer or conditional release of — an inmate, the Service shall take into account the offender’s progress towards meeting the objectives of their correctional plan.
15.2 The Commissioner may provide offenders with incentives to encourage them to make progress towards meeting the objectives of their correctional plans
Section 30 of the Act is amended by adding the following after subsection (2):
(3) Within the maximum and medium security classifications, the Commissioner may assign an inmate to a subclassification in accordance with the regulations made under paragraph 96
This amendment suggests that compliance to the correctional plan should be a defining feature for determining conditions of confinement and conditional release. Bill C-43 Introduces under the cover of law a system of sub-classifications of prisoners who, dependant on compliance with correctional planning or other unidentified behavioural expectations to be determined by prison officials, are accorded more or fewer rights and privileges.
1.6 Administrative Segregation
Our critique of Bill C-43’s provisions regarding administrative segregation is that the bill limits amendments to those of a technical nature and fails to use this opportunity for parliamentary review of the CCRA to implement a much needed process for independent adjudication of segregation decisions, a reform which a committee of the House of Commons has already unequivocally recommended.
1.7 “Modernizing” the Disciplinary System
Nothing more exposes the distortion of language that characterizes the transformation agenda than the Government’s description of the changes that Bill C-43 would make to the prison disciplinary process. According to the government spin:
The current disciplinary system and corresponding actions in penitentiaries will be modernized to ensure cooperation with staff and compliance with institutional rules and regulations. To that end, stronger inmate disciplinary and incentive measures, as well as a modern scheme for segregation, are proposed.
The CCRA will be amended by:
addressing disrespectful, intimidating and assaultive behaviour by inmates towards any staff member or other person;
providing that inmates convicted of throwing bodily substances or knowingly making fraudulent claims would face disciplinary sanction; and,
providing that inmates convicted of serious disciplinary offences who are segregated from other inmates could also be subject to restrictions on visits.
What the Bill C-43 amendments add up to is some minor changes to existing disciplinary offences, the introduction of some new disciplinary offences that are already covered by the current offences and intensifying the rigors of disciplinary segregation.