LEGISLATION
BILL C-36
ASSENTED TO 18th JUNE, 1992
PART III
CORRECTIONAL
INVESTIGATOR
Interpretation
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Definitions
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157. In this Part,
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"Commissioner"
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"Commissioner" has the same meaning as in Part I;
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"Correctional Investigator"
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"Correctional Investigator" means the Correctional Investigator of
Canada appointed pursuant to section 158;
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"Minister"
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"Minister" has the same meaning as in Part I;
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"offender"
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"offender" has the same meaning as in Part II;
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"parole"
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"parole" has the same meaning as in Part II;
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"penitentiary"
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"penitentiary" has the same meaning as in Part I;
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"provincial parole board"
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"provincial parole board" has the same meaning as in Part II.
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CORRECTIONAL
INVESTIGATOR
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Appointment
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158. The Governor in Council may appoint a person to be
known as the Correctional Investigator of Canada.
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Eligibility
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159. A person is eligible to be appointed as Correctional
Investigator or to continue in that office only if the person is a
Canadian citizen ordinarily resident in Canada or a permanent
resident as defined in subsection 2(1) of the Immigration Act
who is ordinarily resident in Canada.
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Tenure of office and removal
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160. (1) The Correctional Investigator holds office during
good behaviour for a term not exceeding five years, but may be
suspended or removed for cause at any time by the Governor in
Council.
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Further terms
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(2) The Correctional Investigator, on the expiration of a first or
any subsequent term of office, is eligible to be re-appointed for a
further term.
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Absence, incapacity or vacancy
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161. In the event of the absence or incapacity of the
Correctional Investigator, or if the office of Correctional
Investigator is vacant, the Governor in Council may appoint another
qualified person to hold office instead of the Correctional
Investigator during the absence, incapacity or vacancy, and that
personal shall, while holding that office, have the same functions as
and all of the powers and duties of the Correctional Investigator
under this Part and be paid such salary or other remuneration and
expenses as may be fixed by the Governor in Council.
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Devotion to duties
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162. The Correctional Investigator shall engage exclusively in
the function and duties of the office of the Correctional
Investigator and shall not hold any other office under Her Majesty in
right of Canada or a province for reward or engage in any other
employment for reward.
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Salary and expenses
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163. (1) The Correctional Investigator shall be paid such
salary as may be fixed by the Governor in Council and is entitled to
be paid reasonable travel and living expenses incurred in the
performance of duties under this Part.
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Pension Benefits
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(2) The provisions of the Public Service Superannuation
Act, other than those relating to tenure of office, apply to the
Correctional Investigator, except that a person appointed as
Correctional Investigator from outside the Public Service, as defined
in subsection 3(1) of the Public Service Superannuation Act,
may, by notice in writing given to the President of the Treasury
Board not more than sixty days after the date of appointment, elect
to participate in the pension plan provided for in the Diplomatic
Service (Special) Superannuation Act, in which case the
provisions of that Act, other than those relating to tenure of
office, apply to the Correctional Investigator from the date of
appointment and the provisions of the Public Service
Superannuation Act do not apply.
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Other Benefits
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(3) The Correctional Investigator is deemed to be employed in
the public service of Canada for the purposes of the Government
Employees Compensation Act and any regulations made under section
9 of the Aeronautics Act.
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MANAGEMENT
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Management
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164. The Correctional Investigator has the control and
management of all matters connected with the office of the
Correctional Investigator.
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STAFF
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Staff of the Correctional Investigator
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165.(1) Such officers and employees as are necessary to
enable the Correctional Investigator to perform the function and
duties of the Correctional Investigator under this Part shall be
appointed in accordance with the Public Service Employment
Act.
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Technical assistance
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(2) The Correctional Investigator may engage on a temporary
basis the services of persons having technical or specialized
knowledge of any matter relating to the work of the Correctional
Investigator to advise and assist the Correctional Investigator in
the performance of the function and duties of the Correctional
Investigator under this Part and, with the approval of the Treasury
Board, may fix and pay the remuneration and expenses of those
persons.
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OATH OF OFFICE
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Oath of Office
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166. The Correctional Investigator and every person
appointed pursuant to section 161 or subsection 165(1) shall,
before commencing the duties of office, take the following oath of
office:
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"I, (name), swear that I will faithfully and impartially to the
best of my abilities perform the duties required of me as
(Correctional Investigator, Acting Correctional Investigator or
officer or employee of the Correctional Investigator). So help me
God."
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FUNCTION
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Function
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167.(1) It is the function of the Correctional Investigator
to conduct investigations into the problems of offenders related to
decisions, recommendations, acts or omissions of the Commissioner
or any person under the control and management of, or performing
services for or on behalf of, the Commissioner that affect
offenders either individually or as a group.
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Restrictions
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(2) In performing the function referred to in subsection
(1), the Correctional Investigator may not investigate
(a) any decision, recommendation, act or omission of
(i) the National Parole Board in the exercise of its exclusive
jurisdiction under this Act, or
(ii) any provincial parole board in the exercise of its exclusive
jurisdiction
(b) any problem of an offender related to the offender's
confinement in a provincial correctional facility, whether or not
the confinement is pursuant to an agreement between the federal
government and the government of the province in which the
provincial correctional facility is located; and
(c) any decision, recommendation, act or omission of an official
of a province supervising, pursuant to an agreement between the
federal government and the government of the province, an
offender on temporary absence, parole, statutory release subject
to supervision or mandatory supervision where the matter has
been, is being or is going to be investigated by an ombudsman of
that province.
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Exception
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(3) Notwithstanding paragraph (2)(b), the Correctional
Investigator may, in any province that has not appointed a
provincial parole board, investigate the problems of offenders
confined in provincial correctional facilities in that province
related to the preparation of cases of parole by any person under
the control and management of, or performing services for or on
behalf of, the Commissioner.
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Application to Federal Court
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168. Where any question arises as to whether the
Correctional Investigator has jurisdiction to investigate any
particular problem, the Correctional Investigator may apply to the
Federal Court for a declaratory order determining the question.
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INFORMATION
PROGRAM
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Information Program
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169. The Correctional Investigator shall maintain a program
of communicating information to offenders concerning
(a) the function of the Correctional Investigator;
(b) the circumstances under which an investigation may be
commenced by the Correctional Investigator; and
(c) The independence of the Correctional Investigator.
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INVESTIGATIONS
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Commencement
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170.(1) The Correctional Investigator may commence an
investigation
(a) on the receipt of a complaint by or on behalf of an offender;
(b) at the request of the Minister; or
(c) on the initiative of the Correctional Investigator.
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Discretion
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(2) the Correctional Investigator has full discretion as to
(a) whether an investigation should be conducted in relation to
any particular complaint or request;
(b) how every investigation is to be carried out; and
(c) whether any investigation should be terminated before its
completion.
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Right to hold hearing
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171.(1) In the course of an investigation, the Correctional
Investigator may hold any hearing and make such inquiries as the
Correctional Investigator considers appropriate, but no person is
entitled as of right to be heard by the Correctional Investigator.
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Hearings to be in camera
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(2) Every hearing held by the Correctional Investigator
shall be in camera unless the Correctional Investigator
decides otherwise.
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Right to require information and documents
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172.(1) In the course of an investigation, the Correctional
Investigator may require any person
(a) to furnish any information that, in the opinion of the
Correctional Investigator, the person may be able to furnish in
relation to the matter being investigated; and
(b) subject to subsection (2), to produce, for examination by the
Correctional Investigator, any document, paper or thing that in
the opinion of the Correctional Investigator relates to the
matter being investigated and that may be in the possession or
under the control of that person.
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Return of document, etc.
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(2) The Correctional Investigator shall return any document,
paper or thing produced pursuant to paragraph (1)(b) to the person
who produced it within ten days after a request therefor is made to
the Correctional Investigator, but nothing in this subsection
precludes the Correctional Investigator from again requiring its
production in accordance with paragraph (1)(b).
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Right to make copies
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(3) The Correctional Investigator may make copies of any
document, paper or thing produced pursuant to paragraph (1)(b).
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Right to examine under oath
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173.(1) In the course of an investigation, the Correctional
Investigator may summon and examine on oath
(a) where the investigation is in relation to a complaint, the
complainant, and
(b) any person who, in the opinion of the Correctional
Investigator, is able to furnish any information relating to the
matter being investigated, and for that purpose may administer an
oath.
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Representation by counsel
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(2) Where a person is summoned pursuant to subsection (1),
that person may be represented by counsel during the examination in
respect of which the person is summoned.
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Right to enter
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174. For the purposes of this Part, the Correctional
Investigator may, on satisfying any applicable security
requirements, at any time enter any premises occupied by or under
the control and management of the Commissioner and inspect the
premises and carry out therein any investigation or inspection.
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FINDINGS, REPORTS AND
RECOMMENDATIONS
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Decision not to investigate
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175. Where the Correctional Investigator decides not to
conduct an investigation in relation to a complaint or a request
from the Minister or decides to terminate such an investigation
before its completion, the Correctional Investigator shall inform
the complainant or the Minister, as the case may be, of that
decision and, if the Correctional Investigator considers it
appropriate, the reasons therefor, providing the complainant with
only such information as can be disclosed pursuant to the
Privacy Act and the Access to Information Act.
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Complaint not substantiated
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176. Where, after conducting an investigation in relation to
a complaint, the Correctional Investigator concludes that the
complaint has not been substantiated, the Correctional Investigator
shall inform the complainant of that conclusion and, where the
Correctional Investigator considers it appropriate, the reasons
therefor, providing the complainant with only such information as
can be disclosed pursuant to the Privacy Act and the
Access to Information Act.
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Informing of problem
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177. Where, after conducting an investigation, the
Correctional Investigator determines that a problem referred to in
section 167 exists in relation to one or more offenders, the
Correctional Investigator shall inform
(a) the Commissioner, or
(b) where the problem arises out of the exercise of a power
delegated by the Chairperson of the National Parole Board to a
person under the control and management of the Commissioner, the
Commissioner and the Chairperson of the National Parole Board of
the problem and the particulars thereof.
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Opinion re decision, recommendation, etc.
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178.(1) Where, after conducting an investigation, the
Correctional Investigator is of the opinion that the decision,
recommendation, act or omission to which a problem referred to in
section 167 relates
(a) appears to have been contrary to law or to an established
policy,
(b) was unreasonable, unjust, oppressive or improperly
discriminatory, or was in accordance with a rule of law or a
provision of any Act or a practice or policy that is or may be
unreasonable, unjust, oppressive or improperly discriminatory, or
(c) was based wholly or partly on a mistake of law or fact, the
Correctional Investigator shall indicate that opinion, and the
reasons therefor, when informing the Commissioner, or the
Commissioner and the Chairperson of the National Parole Board, as
the case may be, of the problem.
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Opinion re exercise of discretionary power
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(2) Where, after conducting an investigation, the
Correctional Investigator is of the opinion that in the making of
the decision or recommendation, or in the act or omission, to which
a problem referred to in section 167 relates to a discretionary
power has been exercised
(a) for an improper purpose,
(b) on irrelevant grounds,
(c) on the taking into account of irrelevant considerations, or
(d) without reasons having been given, the Correctional
Investigator shall indicate that opinion, and the reasons
therefor, when informing the Commissioner, or the Commissioner
and the Chairperson of the National Parole Board, as the case may
be, of the problem.
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Recommendations
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179.(1) When informing the Commissioner, or the Commissioner
and the Chairperson of the National Parole Board, as the case may
be, of a problem, the Correctional Investigator may make any
recommendation that the Correctional Investigator considers
appropriate.
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Recommendations in relation to decision, recommendation, etc.
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(2) In making recommendations in relation to a decision,
recommendation, act or omission referred to in subsection 167(1),
the Correctional Investigator may, without restricting the
generality of subsection (1), recommend that
(a) reasons be given to explain why the decision or
recommendation was made or the act or omission occurred;
(b) the decision, recommendation, act or omission be referred to
the appropriate authority for further consideration;
(c) the decision or recommendation be cancelled or varied;
(d) the act or omission be rectified; or
(e) the law, practice or policy on which the decision,
recommendation, act or omission was based be altered or
reconsidered.
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Recommendations not binding
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(3) Neither the Commissioner nor the Chairperson of the
National Parole Board is bound to act on any finding or
recommendation made under this section.
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Notice and report to Minister
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180. If, within a reasonable time after informing the
Commissioner, or the Commissioner and the Chairperson of the
National Parole Board, as the case may be, of a problem, no action
is taken that seems to the Correctional Investigator to be adequate
and appropriate, the Correctional Investigator shall inform the
Minister of that fact and provide the Minister with whatever
information was originally provided to the Commissioner, or the
Commissioner and the Chairman of the National Parole Board, as the
case may be.
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Complainant to be informed of result of investigation
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181. Where an investigation is in relation to a complaint,
the Correctional Investigator shall, in such manner and at such
time as the Correctional Investigator considers appropriate, inform
the complainant of the results of the investigation, providing the
complainant with only such information as can be disclosed pursuant
to the Privacy Act and the Access to Information Act.
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CONFIDENTIALITY
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Confidentiality
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182. Subject to this Part, the Correctional Investigator and
every person acting on behalf or under the direction of the
Correctional Investigator shall not disclose any information that
comes to their knowledge in the exercise of their powers or the
performance of their functions and duties under this Part.
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Disclosure authorized
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183.(1) Subject to subsection (2), the Correctional
Investigator may disclose or may authorize any person acting on
behalf or under the direction of the Correctional Investigator to
disclose information
(a) that, in the opinion of the Correctional Investigator, is
necessary to
(i) carry out an investigation, or
(ii) establish the grounds for findings and recommendations made
under this Part; or
(b) in the course of a prosecution for an offence under this Part
or a prosecution for an offence under section 131 (perjury) of
the Criminal Code in respect of a statement made under
this Part.
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Exceptions
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(2) The Correctional Investigator and every person acting on
behalf or under the direction of the Correctional Investigator
shall take every reasonable precaution to avoid the disclosure of,
and shall not disclose, any information the disclosure of which
could reasonably be expected
(a) to disclose information obtained or prepared in the course of
lawful investigations pertaining to
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(i) the detection, prevention or suppression of crime,
(ii) the enforcement of any law of Canada or a province, where
the investigation is ongoing, or
(iii) activities suspected of constituting threats to the
security of Canada within the meaning of the Canadian Security
Intelligence Service Act, if the information came into
existence less than twenty years before the anticipated
disclosure;
(b) to be injurious to the conduct of any lawful investigation;
(c) in respect of any individual under sentence for an offence
against any Act of Parliament, to
(i) lead to a serious disruption of that individual's
institutional or conditional release program, or
(ii) result in physical or other harm to that individual or any
other person;
(d) to disclose advice or recommendations developed by or for a
government institution within the meaning of the Access to
Information Act or a minister of the Crown; or
(e) to disclose confidences of the Queen's Privy Council for
Canada referred to in section 196.
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Definition of "investigation"
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(3) For the purposes of paragraph (2)(b), "investigation"
means an investigation that
(a) pertains to the administration or enforcement of an Act of
Parliament or of a province; or
(b) is authorized by or pursuant to an Act of Parliament or of a
province
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Letter to be unopened
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184. Notwithstanding any provision in any Act or regulation,
where
(a) a letter written by an offender is addressed to the
Correctional Investigator, or
(b) a letter written by the Correctional Investigator is
addressed to an offender, the letter shall immediately be
forwarded unopened to the Correctional Investigator or to the
offender, as the case may be, by the person in charge of the
institution at which the offender is incarcerated.
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DELEGATION
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Delegation by Correctional Investigator
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185.(1) The Correctional Investigator may authorize any
person to exercise or perform, subject to such restrictions or
limitations as the Correctional Investigator may specify, the
function, powers and duties of the Correctional Investigator under
this Part except
(a) the power to delegate under this section; and
(b) the duty or power to make a report to the Minister under
section 192 or 193.
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Delegation is revocable
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(2) Every delegation under this section is revocable at will
and no delegation prevents the exercise or performance by the
Correctional Investigator of the delegated function, powers and
duties.
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Continuing effect of delegation
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(3) In the event that the Correctional Investigator who
makes a delegation under this section ceases to hold office, the
delegation continues in effect so long as the delegate continues in
office or until revoked by a succeeding Correctional Investigator
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RELATIONSHIP WITH OTHER
ACTS
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Power to conduct investigations
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186.(1) The power of the Correctional Investigator to
conduct investigations exists notwithstanding any provision in any
Act to the effect that the matter being investigated is final and
that no appeal lies in respect thereof or that the matter may not
be challenged, reviewed, quashed or in any way called into
question.
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Relationship with other Acts
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(2) The power of the Correctional Investigator to conduct
investigations is in addition to the provisions of any other Act or
rule of law under which
(a) any remedy or right of appeal or objection is provided for
any person, or
(b) any procedure is provided for the inquiry into or
investigation of any matter, and nothing in this Part limits or
affects any such remedy, right of appeal, objection or procedure.
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LEGAL
PROCEEDINGS
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Acts not to be questioned or subject to review
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187. Except on the ground of lack of jurisdiction, nothing
done by the Correctional Investigator, including the making of any
report or recommendation, is liable to be challenged, reviewed,
quashed or called into question in any court.
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Protection of Correctional Investigator
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188. No criminal or civil proceedings lie against the
Correctional Investigator, or against any person acting on behalf
or under the direction of the Correctional Investigator, for
anything done, reported or said in good faith in the course of the
exercise or performance or purported exercise or performance of any
function, power or duty of the Correctional Investigator.
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No summons
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189. The Correctional Investigator or any person acting on
behalf or under the direction of the Correctional Investigator is
not a competent or compellable witness in respect of any matter
coming to the knowledge of the Correctional Investigator or that
person in the course of the exercise or performance or purported
exercise or performance of any function, power or duty of the
Correctional Investigator, in any proceedings other than a
prosecution for an offence under this Part or a prosecution for an
offence under section 131 (perjury) of the Criminal Code in
respect of a statement made under this Part.
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Libel or slander
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190. For the purposes of any law relating to libel or
slander,
(a) anything said, any information furnished or any document,
paper or thing produced in good faith in the course of an
investigation by or on behalf of the Correctional Investigator
under this Part is privileged; and
(b) any report made in good faith by the Correctional
Investigator under this Part and any fair and accurate account of
the report made in good faith in a newspaper or any other
periodical publication or in a broadcast is privileged.
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OFFENCE AND
PUNISHMENT
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Offences
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191. Every person who
(a) without lawful justification or excuse, wilfully obstructs,
hinders or resists the Correctional Investigator or any other
person in the exercise or performance of the function, powers or
duties of the Correctional Investigator,
(b) without lawful justification or excuse, refuses or wilfully
fails to comply with any lawful requirement of the Correctional
Investigator or any other person under this Part, or
(c) wilfully makes any false statement to or misleads or attempts
to mislead the Correctional Investigator or any other person in
the exercise or performance of the function, powers or duties of
the Correctional Investigator,
is guilty of an offence punishable on summary conviction and liable
to a fine not exceeding two thousand dollars.
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ANNUAL AND SPECIAL
REPORTS
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Annual reports
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192. The Correctional Investigator shall, within three
months after the end of each fiscal year, submit to the Minister a
report of the activities of the office of the Correctional
Investigator during that year, and the Minister shall cause every
such report to be laid before each House of Parliament on any of
the first thirty days on which that House is sitting after the day
on which the Minister receives it.
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Urgent mattersReporting of public hearings
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194. Where the Correctional Investigator decides to hold
hearings in public in relation to any investigation, the
Correctional Investigator shall indicate in relation to that
investigation, in the report submitted under section 192, the
reasons why the hearings were held in public.
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Adverse comments
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195. Where it appears to the Correctional Investigator that
there may be sufficient grounds for including in a report under
section 192 or 193 any comment or information that reflects or
might reflect adversely on any person or organization, the
Correctional Investigator shall give that person or organization a
reasonable opportunity to make representations respecting the
comment or information and shall include in the report a fair and
accurate summary of those representations.
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CONFIDENCES OF THE
QUEEN'S PRIVY COUNCIL
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Confidences of the Queen's Privy Council for Canada
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196.(1) The powers of the Correctional Investigator under
sections 172, 173, and 174 do not apply with respect to confidences
of the Queen's Privy Council for Canada, including, without
restricting the generality of the foregoing,
(a) memoranda the purpose of which is to present proposals or
recommendations to Council;
(b) discussion papers the purpose of which is to present
background explanations, analyses of problems or policy options
to Council for consideration by Council in making decisions;
(c) agenda of Council or records recording deliberations or
decisions of Council;
(d) records used for or reflecting communications or discussions
between ministers of the Crown on matters relating to the making
of government decisions or the formulation of government policy;
(e) records the purpose of which is to brief ministers of the
Crown in relation to matters that are before, or are proposed to
be brought before, Council or that are the subject of
communications or discussions referred to in paragraph (d);
(f) draft legislation; and
(g) records that contain information about the contents of any
record within a class of records referred to in paragraphs (a) to
(f).
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Definition of "Council"
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(2) For the purposes of subsection (1), "Council" means the
Queen's Privy Council for Canada, committees of the Queen's Privy
Council for Canada, Cabinet and committees of Cabinet.
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Exception
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(3) Subsection (1) does not apply with respect to
(a) confidences of the Queen's Privy Council for Canada that have
been in existence for more than twenty years; or
(b) discussion papers described in paragraph (1)(b)
(i) If the decisions to which the discussion papers relate have
been made public, or
(ii) where the decisions have not been made public, if four
years have passed since the decisions were made.
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REGULATIONS
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Regulations
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197. The Governor in Council may make such regulations as
the Governor in Council deems necessary for carrying out the
purposes and provisions of this Part.
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HER MAJESTY
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Binding on Her Majesty
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198. This Part is binding on Her Majesty in right of Canada.
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