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ANNUAL REPORT OF
THE CORRECTIONAL
INVESTIGATOR
2000-2001
© Public Works and Government
Services Canada, 2001
Cat. No. JA1-2001 ISBN 0-662-65837-X
Internet: www.oci-bec.gc.ca
June 29, 2001
The Honourable Lawrence
MacAulay Solicitor General of Canada House of Commons Wellington Street Ottawa, Ontario
Dear
Mr. Minister,
In accordance with the
provisions of section 192 of the Corrections and Conditional Release
Act, it is my duty and privilege to submit to you the 28th Annual Report of the Correctional
Investigator.
Yours respectfully,
R.L. Stewart Correctional Investigator
TABLE OF CONTENTS
Operations
Issues Under Review
1. Special Handling
Unit 2. Inmate Pay 3. Inmate
Grievance Procedure 4. Case Preparation and
Access to Programming 5. Double Bunking 6. Transfers 7. Preventive
Security Standards Guidelines 8. Use of Force 9. Inmate Injuries and Investigations
a)
Institutional Violence
b) Inmate
Injuries
c)
Suicides
d)
Internal Investigations 10. Sharing Information
with Police on Release of an Offender 11.
Allegations of Staff Misconduct 12.
Involuntary Transfer and Consent to Mental Health Interventions 13. Critical Incident Stress Intervention
for Inmates 14. Inappropriate and
Demeaning Strip Search Procedure 15. Mental
Health Services for Female Offenders 16. Sexual Harassment Policy 17. Security Classification of Offenders
Serving Life Sentences 18. Women Offenders 19. Aboriginal Offenders
Status of Case Summaries from 99/00 Annual
Report
Cases
involving Strip Searches
Meetings the Needs of Disabled
Offenders
Housing Minors in Penitentiaries
Access to Traditional Aboriginal
Healers
Works in Progress
a) Administrative Segregation
b) Confidential Medical
Information
c)
Older Offenders
d) Infectious Diseases
Conclusion Summary of
Recommendations Statistics
OPERATIONS
The Office of the Correctional
Investigator is mandated as an Ombudsman for federal offenders. Part
III of the Corrections and Conditional
Release Act governs the operation of this Office and parallels
very closely the provisions of most Provincial Ombudsman
legislation, albeit, in our case, within the context of
investigating the activities of a single government organisation and
reporting to the legislature through a single Minister. The
"function" of the Correctional Investigator, as with all Ombudsman
mandates, is purposefully broad:
"to conduct investigations into
the problems of offenders related to decisions, recommendations,
acts or omissions of the Commissioner (of Corrections) 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".
Inquiries can be initiated on
the basis of a complaint or at the initiative of the Correctional
Investigator with full discretion resting with the Office in
deciding whether to conduct an investigation and how that
investigation will be carried out.
In the course of an
investigation, the Office is afforded significant authority to
require the production of information up to, and including, a formal
hearing involving examination under oath. This authority is
tempered, and the integrity of our function protected, by the strict
obligation that we limit the disclosure of information acquired in
the course of our duties to that which is necessary to the progress
of the investigation and to the establishing of grounds for our
conclusions and recommendations. Our disclosure of information, to
all parties, is further governed by safety and security
considerations and the provisions of the Privacy Act and Access to Information Act.
The provisions above, which
limit our disclosure of information, are complemented by other
provisions within Part III of the Act which prevent our being
summoned in legal proceedings and which underline that our process
exists without affecting, or being affected by, appeals or remedies
before the Courts or under any other Act. The purpose of these
measures is to prevent us from being compromised by our implication,
either as a "discovery" mechanism or as a procedural prerequisite,
within our processes - an eventuality which could potentially
undermine the Office's Ombudsman function.
The Office's observations and
findings, subsequent to an investigation, are not limited to a
determination that a decision, recommendation, act or omission was
contrary to existing law or established policy. In keeping with the
purposefully broad nature of our Ombudsman function, the
Correctional Investigator can determine that a decision,
recommendation, act or omission was: "unreasonable, unjust,
oppressive and improperly discriminatory; or based wholly or partly
on a mistake of law or fact" or that a discretionary power has been
exercised, "for an improper purpose, on irrelevant grounds, on the
taking into account of irrelevant considerations, or without reasons
having been given".
The Act at Section 178
requires that where in the opinion of the Correctional Investigator
a problem exists, the Commissioner of Corrections shall be informed
of that opinion and the reasons therefore. The practice of the
Office has been to attempt to resolve problems through consultation
at the institutional and regional levels in advance of referring
matters to the attention of the Commissioner. While we continue to
ensure that appropriate levels of management within the Service are
approached with respect to complaints and investigations, this
provision clearly indicates that the unresolved "problems" of
offenders are to be referred to the Commissioner in a timely
fashion.
The legislation as well
provides that the Correctional Investigator, when informing the
Commissioner of the existence of a problem, may make any
recommendation relevant to the resolution of the problem that the
Correctional Investigator considers appropriate. Although these
recommendations are not binding, consistent with the Ombudsman
function, the authority of the Office lies in it's ability to
thoroughly and objectively investigate a wide spectrum of
administrative actions and present its findings and recommendations
to an equally broad spectrum of decision makers, inclusive of
Parliament, which can cause reasonable corrective action to be taken
if earlier attempts at resolutions have failed.
A significant step in this
resolution process is the provision at Section 180 of the Act which
requires the Correctional Investigator to give notice and report to
the Minister if, within a reasonable time, no action is taken by the
Commissioner that seems to the Correctional Investigator to be
adequate and appropriate. Sections 192 and 193 of the legislation
continue this process by requiring the Minister to table in both
Houses of Parliament, within a prescribed time period, the Annual
Report and any Special Report Issues by the Correctional
Investigator.
Operationally, the primary
function of the Correctional Investigator is to investigate and
bring resolution to individual offender complaints. The Office as
well has a responsibility to review and make recommendations on the
Service's policies and procedures associated with the areas of
individual complaint to ensure that systemic areas of concern are
identified and appropriately addressed.
All complaints received by the
Office are reviewed and initial inquiries made to the extent
necessary to obtain a clear understanding of the issue in question.
After this initial review, in those cases where it is determined
that the area of complaint is outside our mandate, the complainant
is advised of the appropriate avenue of redress and assisted when
necessary in accessing that avenue. For those cases that are within
our mandate, the complainant is provided with a detailing of the
Service's policies and procedures associated with the area of
complaint. An interview is arranged and the offender is encouraged
to initially address the concerns through the Service's internal
grievance process.
Although we endorse the use of
the internal grievance process, we do not insist on its use as a
pre-condition to our involvement. If it is determined during the
course of our initial review that the offender will not or cannot
reasonably address the area of concern through the internal
grievance process or the area of complaint is already under review
with the Service, we will exercise our discretion and take whatever
steps are required to ensure that the area of complaint is
addressed.
In addition to responding to
individual complaints, the Office meets regularly with inmate
committees and other offender organizations and makes announced
visits bi-annually at each institution during which the investigator
will meet with any inmate, or group of inmates, upon request. We
had, over the course of this reporting year, in excess of three
hundred meetings with various offender organizations, including
inmate committees, lifer groups, black inmate associations, native
brotherhoods and sisterhoods.
The vast majority of the
concerns raised on complaints by inmates are addressed by this
Office at the institutional level through discussion and
negotiation. In those cases where a resolution is not reached at the
institution, the matter is referred to regional or national
headquarters, depending upon the area of concern, with a specific
recommendation for further review and corrective action. If at this
level the Service, in the opinion of the Correctional Investigator
fails to address the matter in a reasonable and timely fashion, it
will be referred to the Minister and eventually may be detailed
within an Annual or Special Report.
The Office, over the course of
the reporting year, received 8405 complaints. The investigative
staff spend 375 days in federal penitentiaries and conducted in
excess of 3,100 interviews with inmates and half again that number
of interviews with institutional and regional staff. These numbers
are measurably up from last year. I will take this opportunity to
publicly acknowledge and thank my staff for their dedication and
professionalism in managing this ever increasing workload. The areas
of complaint continue to focus on those long standing issues which
have been detailed in past Annual Reports. A specific breakdown of
the areas of complaint, dispositions, institutional visits and
interviews are provided in the statistics section of the
Report.
Issues Under
Review
Introduction
This has been a productive and
challenging year. Not only has the volume of offender complaints
measurably increased, but we currently have more Issues under review
with the Correctional Service than at any time in the Office's
history.
The Correctional Service of
Canada is a direct service agency whose policies and decisions
impact directly and immediately on the offender population. The
Service therefore must ensure that its review and decision-making
processes are capable of responding to and resolving issues in a
timely fashion. There is also a need for the Service to ensure that
the information upon which it is basing its decisions reflects the
reality of its own operations. Although there has been progress on
some issues, I suggest that the bureaucratic and operational
realities speak to the need for the Service to be measurably more
responsive in addressing those areas of concern raised by, or on
behalf of, offenders.
The concerns of the offender
tend to be forgotten at times during the review of these Issues. I
believe it is imperative that these concerns be central to the
process. The primary function of this Office is to investigate and
attempt to bring resolution to individual offender complaints. As
well, I have a responsibility to review and make recommendations on
the Service's policies and procedures associated with the areas of
individual complaint to ensure that systemic areas of concern are
identified and addressed in a timely fashion.
I have provided in this year's
Report a brief detailing of the Issues under review with specific
recommendations designed to address the areas of concern associated
with the Issue. I have invited the Commissioner of Corrections to
comment on the recommendations and look forward to reviewing with
the Commissioner the Service's response.
1. Special
Handling Unit (SHU)
The SHU is the Service's
highest security level institution and is located at the Regional
Reception Centre in Ste-Anne-des-Plaines, Québec. On March 31, 2001,
the Unit housed ninety inmates, up from sixty-five in March
1998.
The stated policy of the SHU
is, "to create an environment in which dangerous inmates are
motivated and assisted to behave in a responsible manner so as to
facilitate their integration in a maximum security institution".
An offender is determined by
the Service to be "dangerous if his behavior is such that it causes
serious harm or death or seriously jeopardizes the safety of
others".
The Service's Regional Deputy
Commissioners are authorized to transfer an offender to the SHU for
the purpose of assessment. The offender, by policy, prior to their
transfer to the SHU for assessment, is housed at a maximum security
institution, in segregation, within their home region . This period
of segregation, for a variety of reasons including outside charges,
can extend well beyond a year.
Until recently, the final
decision-making authority on all placements in the SHU, subsequent
to the offender's assessment of "dangerousness" and transfers from
the SHU, was the National Review Committee (NRC). The NRC was
chaired by an Assistant Deputy Commissioner. Other members of the
NRC included a minimum of two Wardens from maximum security
institutions and the Assistant Warden of the SHU.
A policy change in February
2001 now identifies the Senior Deputy Commissioner as the final
decision-making authority on an offender's placement in and transfer
from the SHU. The NRC has been re-named the SHU Advisory Committee
with a mandate to review individual cases and provide
recommendations to the Senior Deputy Commissioner. The inmate
grievance process has also been changed, identifying the
Commissioner as the level of redress on SHU decisions.
The specific areas of concern
raised by this Office over the years have focused on:
- the overall effectiveness of the existing
SHU policy in meeting its stated objective;
- the traditional low level of inmate
participation in programming at the SHU;
- the absence of specific programming
designed to address the identified needs of the SHU population;
- the fairness of the decision-making and
redress offered SHU inmates; and
- the number of inmates being released
directly from the SHU to the community.
I continue to have serious
questions about the effectiveness of the Service's policy of placing
all "dangerous inmates" in one facility. This practice, as I have
previously stated, has had the effect of labelling these offenders
as the "worst of the worst" and creating a solidarity amongst this
population which undermines the stated objective of the policy. This
sense of solidarity has in part lead to the continuing low level of
participation in the programs currently offered in the SHU.
The Service to date, despite
the 1999 recommendation of its own Study Group, has not developed
programming specific to the SHU. I have been advised that a program
officer has recently been appointed "to develop a needs base for
inmate programming at the SHU and to develop a funding strategy". No
time frame for this undertaking has been identified.
With respect to the concern of
inmates being released directly from the SHU to the community, I am
advised that a procedure is now in place that will "trigger more
active considerations of transfer" in advance of the offender's
release date. The Service further states that "every effort has been
and will continue to be made to ensure that offenders are
transferred to a maximum security institution in the Region of
release no later than four months prior to their release date".
Decisions with respect to the
SHU, including those taken by the Regional Deputy Commissioners,
have a significant impact, not only on an offender's conditions of
confinement but also on the timing of their eventual release to the
community. The Service, in 1996, in response to concerns raised with
the fairness and objectivity of SHU decision-making, altered their
policy to afford offenders the right to appear before the
decision-making authority. The Parliamentary Committee Report of May
2000 on the Review of the Corrections and
Conditional Release Act in further promoting objectivity and
fairness in the SHU process recommended representation from outside
the Correctional Service on the NRC. The Government Response of
November 2000 supported the Committee's recommendation, stating that
"further openness and accountability is an effective means to ensure
administrative fairness". The NRC at the time of the Committee's
recommendation and the Government's response was the SHU
decision-making authority.
The recent policy change
shifting the decision-making authority to the Senior Deputy
Commissioner does not provide the offender with the right to make
representations directly to the decision-maker, nor does it allow
for outside representation on the decision-making body.
I see this as a step back from
the fairness provisions introduced in 1996 and inconsistent with the
Parliamentary Committee recommendation.
The Service in commenting on
the matter stated:
"The principle of administrative
fairness remains in place as offenders may request to be
personally interviewed by two members of the NRC prior to a
decision being taken, and/or may provide written submissions to
the NRC on this matter… The results of the interview by NRC
members and any other submissions are shared and considered by the
SDC in making decisions… The issue of outside representation on
the National Review Committee will be examined in the near future
along with other needed policy changes. As part of our ongoing
efforts to make SHU hearings more open and transparent, Citizen
Advisory Committee (CAC) members regularly participate in the
reviews and are free to participate in the
discussions."
In addition to my concerns with
the provision of administrative fairness, I have questions about the
appropriateness of involving CAC members in this process. The policy
on Citizen Advisory Committees does not currently include within
their mandate the review of individual offender cases or access to
confidential or personal information without the individual's
consent.
I
recommend that the Service's current examination of the SHU policy
focus on:
- the
effectiveness of the SHU in meeting its current stated objective;
- the level of
program participation and the relevance of current programming to
the identified needs of the SHU population;
- the resource
requirements necessary to meet the programming needs of the
existing population;
- the
appropriateness of involving Citizen Advisory Committee members in
the review process;
- the fairness,
openness and accountability of the decision-making process,
inclusive of a clearly defined avenue of timely redress; and
- the
development of a monthly independent review process for offenders
housed in segregation awaiting transfer to the SHU for assessment.
I
further recommend that the results of the examination be published
and that policy addressing the above areas be issued by October 2,
2001.
2. Inmate Pay
Inmate wages have been
maintained at their 1986 level yet the cost of canteen items has
nearly doubled. In addition, over the past decade a number of health
care and personal hygiene items, which were provided by the Service,
must now be purchased by the inmates.
The areas of concern raised by
this continuing situation are two-fold:
- first, with respect to institution
operations; inadequate pay levels assist in promoting and
maintaining an illicit underground economy.
- second, with respect to the offender's
release; inadequate pay levels negate the saving of sufficient
funds to support reintegration.
The Service, in acknowledging
this situation, proposed three years ago the "increasing of all pay
levels, introducing annual indexing into the inmate pay system and
increasing offender purchasing power to off-set the cost of personal
hygiene and health care products".
I was recently advised that as
of April 1, 2001, inmates will be provided with a $4.00 per pay
period credit to purchase basic health and hygiene products.
Although this is of some relief to the inmate population it hardly
addresses the areas of concern associated with the issue of inmate
pay. I was also advised that the Service considers this matter
closed and no further action will be taken.
Although it is evident from the
Service's response that they are not prepared to pursue their
proposal of increasing pay levels and introducing annual indexing, I
have been provided with no rationale for their change of
position.
I
again recommend that the Service initiate:
- an immediate
across-the-board increase in inmate pay levels, inclusive of
indexing provisions; and
- a review of
the adequacy of the funds currently available to offenders on
their release to the community.
An additional area of concern
associated with inmate pay was the Service's implementation of the
Millennium Telephone System in January 1998. The introduction of
this system, which is essentially a security system, substantially
increased the cost of telephone communications for inmates and their
families. For example, in some regions the cost of local calls went
from 25 cents to $2.00.
A formal request from the
Service for tenders on the continued provision of this system was
made in January 2000. I was advised that the submissions under
review would bring the cost of telephone calls in line with those
paid in the community. I suggested last year, given that the matter
had been under review for two years, that it would be reasonable for
the Service to subsidize the cost of inmate telephone calls until
the implementation of the revised system was completed.
The Service, in response,
indicated that the decision on awarding the contract for the new
offender telephone system is under appeal and stated, "There are no
plans to subsidize the cost of offender telephone calls in the
interim".
The delay caused by the appeal
in implementing a revised telephone system with reasonable rates is
hardly the fault of the offender population and their families. It
has now been in excess of three years since the introduction of the
Millennium Telephone System.
I recommend that the Service
provide an immediate subsidy to the inmate population to bring the cost of telephone
communications in line with community standards.
3. Inmate Grievance
Procedure
The Corrections and Correctional Release Act
requires that the Service provide a procedure for fairly and
expeditiously resolving offenders' grievances on matters within the
jurisdiction of the Commissioner of Corrections. The legislation
further mandates that every offender shall have complete access to
the grievance procedure without negative consequences.
This Office, as I have
previously stated, has a vested interest in ensuring that the
Service's internal redress procedures are both fair and expeditious
in resolving individual offender concerns and in identifying and
responding to systemic areas of concern. With in excess 20,000
federal offenders, we cannot be, nor were we ever intended to be,
the primary reviewer of offender complaints. The Service's grievance
process, to be effective, must be and be seen by the offender
population as timely, thorough and objective in responding to their
complaints.
While acknowledging
improvements in the system's operation, the areas of concern with
the Service's grievance process have focused on:
- the continuing instances of excessive
delay in responding at the institutional and regional levels of
the process;
- the limited evidence of management
analysis of the grievance data or senior management direction to
address identified problems;
- the rejection of Madame Justice Arbour's
recommendations designed to ensure that the Commissioner and
Deputy Commissioner for Women either personally respond to
grievances brought to their attention or refer the grievances to a
source outside the Correctional Service for disposition; and
- the effectiveness of the current procedure
in addressing the concerns of Women and Aboriginal offenders.
Although the Service has
recently initiated reviews on some of these matters, the areas of
concern remain.
I
recommend that:
- the Service
initiate action immediately to clear up the backlog of outstanding
grievances;
- policy
direction be issued to ensure, on a quarterly basis, a thorough
analysis of grievance data is undertaken by the Health Care,
Aboriginal and Women Offender sectors;
- the rejection
of Madame Justice Arbour's recommendations concerning senior
management accountability and external review within the grievance
process be revisited;
- the current
review of the process undertaken by the Aboriginal Issues Branch,
when finalized, be provided to all inmate aboriginal
organizations; and
- a review,
independent of the Women Offender's sector, be initiated to
determine how effectively inmate complaints are being managed in
institutions housing women offenders, with specific focus on the
women housed in male penitentiaries.
I
recommend that the above actions be finalized by October 31,
2001.
I have recently been advised
that the Service's Performance Assurance Sector is finalizing an
audit on the grievance system. It is expected that the Audit Report
will be available by the end of June 2001. I look forward to
reviewing this report with the Service.
I
recommend that the Service's Audit Report due June 2001 on the
grievance system be provided to all Inmate Committees for their
comments.
4. Case Preparation and Access to
Programming
The areas of concern associated
with the Issue focus on the ability of the Correctional Service to
provide responsive programming and prepare offender cases in a
thorough and timely fashion for conditional release
consideration.
I have acknowledged the
complexity of the Issue, the inter-relationship between the numerous
variables at play and their impact on the provision of effective
case management and programming. I have also acknowledged, over the
years, the various initiatives undertaken by the Service in an
attempt to address these issues. Yet our review of offender
complaints, and our review of the data collected by the Service,
leads me to conclude that despite the numerous policy and
operational changes initiated over the years, the situation remains
as it was.
Last year's Annual Report
detailed a number of observations related to waiver and postponement
rates for National Parole Board reviews, the number of offenders
incarcerated past their parole eligibility dates and the length of
waiting lists for programs. I also highlighted the disadvantaged
position of Aboriginal Offenders in terms of timely conditional
release. I concluded last year's Report by stating that: "the
Service's responses on the issue of case preparation and timely
access to programming over the past decade have always been phrased
in the future tense, with no clear indication provided as to the
impact of previous changes or the expected results of proposed
changes. Things have not changed".
The Service again this year in
responding has provided no detailing on the impact of their previous
efforts or the anticipated results of proposed actions. The
situation detailed last year has not improved:
-
the Full Parole Waiver and
Postponement rates have increased.
-
the Full Parole Waiver rate for
Aboriginal Offenders has increased and stands at 31.6% as compared
with 20.3% for Non Aboriginals.
-
of the 2,753 reviews for full
parole scheduled in the fourth quarter of 2000-2001, 1,250 were
either waived or postponed.
-
the number of offenders
incarcerated past their full parole eligibility date is virtually
unchanged although the percentage of women offenders in this
category has increased by five percent.
-
the percentage (73%) of
Aboriginal Offenders incarcerated past their full parole
eligibility date, as of January 2001, was significantly higher
than the percentage of Non Aboriginal offenders (58%)
- the number of offenders involved in
unescorted temporary absence and work release programs has
decreased significantly and Aboriginal Offenders are measurably
under-represented in these programs.
The Service, in response to our
concerns related to timely access to programming and the negative
impact of extensive program waiting lists on conditional release
decisions, indicated that a reporting system on program activity
should be completed early in the summer of 2001.
I
recommend that the Service initiate immediately a review of program
access and timely conditional release focused on:
- current
program capacity, the extent of waiting lists and specific
measures required to address deficiencies;
- the specific
reasons for waivers, postponements and adjournments and the
actions required to reduce their numbers;
- the reasons
for the decline in unescorted temporary absence and work release
programming and the specific measures required to increase
participation in this programming; and
- the reasons
for the disadvantaged position of Aboriginal Offenders in terms of
timely conditional release and a specific plan of action to
address this disadvantage.
I
further recommend that this review, inclusive of detailed action
plans, be finalized by November 15, 2001.
5. Double Bunking
I recommended last year, as I
had in previous Annual Reports, that the Service immediately cease
the practice of double bunking inmates in non-general population
cells.
The Commissioner responding on
the matter in March of this year stated:
"All efforts to eliminate
double bunking for administrative segregated inmates remains a
priority. In this regard, plans to eliminate double bunking have
been developed and are presently being reviewed. Double Bunking
and the capacity to double bunk inmates in administrative
segregation will be eliminated by September 2001. There is no
double bunking in mental health units at this time; however, it is
being used in some reception units.
As part of the Service's
overall review of double bunking practices, specific plans are
being developed and reviewed to reduce and eliminate double
bunking in these units".
This is a positive step. I
acknowledge the Commissioner's efforts in this area and we look
forward to reviewing with the Service their plans to eliminate
double bunking in reception areas.
6. Transfers
Transfer decisions are
potentially the most important decision taken by the Correctional
Service during the course of an offender's period of incarceration.
Whether it’s a decision taken on initial placement, a decision taken
on an involuntary transfer to higher security or the denial of a
transfer to lower security, these decisions affect not only the
inmate's access to programming and family, they also impact directly
on decisions concerning conditional release.
I concluded last year's Annual
Report on this issue by stating that I was not at all convinced that
the Service was in a position to ensure either that the process
leading to inmate transfer decisions was thorough, objective and
timely, or that the process was reasonably monitored to ensure
compliance with the administrative fairness provisions detailed in
its transfer policy.
The Service made significant
revisions to its transfer policy in October of 1999. I recommended
last year that the Service immediately initiate an evaluation of the
new procedure. The specific areas of concern associated with this
Issue have focused on:
-
the excessive periods of time
offenders were spending in reception units prior to their initial
placement;
-
the thoroughness, objectivity
and timeliness of the process leading to transfer decisions;
-
the number of offenders housed
at a higher security level than called for by their security
classification;
-
the continuing questionable
quality of the transfer data used by the Service to monitor the
process; and
-
the number of Aboriginal
involuntary transfers.
An additional area of concern
that has emerged recently is the backlog on actioning inter-regional
transfers. Many offenders, who have been approved for inter-regional
transfer, are spending excessive periods of time housed in
segregation units prior to actually being transferred.
The Service in responding to my
recommendation of last year for an immediate evaluation, advised in
March 2001 that an assessment of the transfer process would be
completed by March 2002.
The Service, despite our
request, has provided no details with respect to the proposed
assessment framework or what specific aspects of the transfer
process they intend to assess. I have serious concerns, given the
continuing questionable quality of their transfer data*, as to whether or not the Service is in
a position to reasonably assess its transfer process.
I
recommend with respect to the transfer process that the
Service:
- immediately
initiate an audit of its transfer data to determine its current
validity and what actions need to be taken to ensure its future
accuracy;
- develop a
framework for the assessment of the transfer process to
specifically address the previously noted areas of concern by
September 20, 2001; and
- finalize its
assessment of the process by December 20, 2001, inclusive of the
development of specific action plans.
I
further recommend that this Office be kept advised of the Service's
progress on this Issue.
*C.S.C. Corporate Results Book
June 2001:
"The quality of transfer data
has long been in question. One problem area is the lack of a
clear definition for "voluntary" and "involuntary" transfers.
Some of the other obvious problems are warrants issued and not
executed or cancelled (327 in the 2000-2001 fiscal year), transfers
from reception facilities for reasons other than penitentiary
placement (259), decisions made before an application (184),
decisions made more than 120 days after.
7. Preventive Security Standards
Guidelines
The areas of concern associated
with this Issue have centered on the absence of any clear national
direction concerning the coordination, verification, communication
and correction of preventive security information. There is also no
clear identification of who is responsible and accountable for
ensuring the accuracy of the information.
Over the years this Office has
received a significant number of complaints from offenders
concerning the security information used by the Service in support
of its decisions. This information, which the offender does not have
access to, often negatively impacts on decisions related to visits,
transfers, segregation and conditional release.
I recommended in 1996 that the
Service develop Preventive Security Standards and Guidelines. The
Service acknowledged the absence of clear national direction in the
area and undertook to produce guidelines by the Fall of 1997.
I was advised in March 2001
that Preventive Security Guidelines would be issued by July
2001.
I
recommend that in conjunction with the issuing of the Preventive
Security Guidelines the Service initiate a training program to
ensure that the responsibilities and accountabilities detailed in
the Guidelines are clearly understood.
8. Use of Force
The use of force against an
inmate is a significant action. It is an action that should only be
taken as a last resort and an action that should be thoroughly and
objectively reviewed to ensure full compliance with law and policy.
There should also be an ongoing review and analysis of these
incidents, independent of the institution, to ensure that violations
are addressed and that appropriate policy direction is issued to
keep use of force incidents to a minimum.
The Service in 1997, in
response to a recommendation from Madame Justice Arbour, initiated
policy which required that all videotapes of use of force incidents
and supporting documentation be forwarded to this Office and the
Service's National Headquarters. The Service revised its policy in
June 2000 and from a procedural perspective the policy addresses the
majority of the concerns identified over the past three years. What
remains at issue is the full implementation of the policy and its
effect on use of force practices.
This Office reviewed videotapes
and supporting documentation on over 400 use of force incidents over
the past year. Despite the above noted policy change, which has
introduced a more rigorous review of use of force incidents at the
Service's regional and national levels, we continue to find
unreasonably high levels of non-compliance in the areas of:
-
strip-searching and privacy
procedures;
-
authorization and use of gas;
-
decontamination procedures
following use of gas;
-
post incident health care
interventions;
-
use of force in support of
mental health interventions;
-
authorization and use of
restraint equipment;
-
timeliness and thoroughness of
reviews undertaken by Health Care and Women Offender sectors; and
-
recording and consideration of
inmate representations during post incident review.
These areas of concern have
been and will continue to be addressed with those responsible within
the Service for the review and analysis of use of force incidents.
To date, despite previous commitments, the Service is currently not
in a position to measure its level of compliance with use of force
policies. Nor is its performance in this area presently being
monitored on a systemic basis by the Service's Executive
Committee.
I have recently been advised
that the Service has implemented an improved information system on
use of force incidents. The monitoring of this data will be done on
a quarterly basis beginning in June 2001. I have as well been
advised that the Service's Performance Assurance sector will produce
reports on Use of Force, beginning in the summer of 2001. These
reports will be available for review and discussion at the Service's
Executive Committee meetings. I acknowledge the Service's recent
efforts in this area and look forward to reviewing the results of
their monitoring process.
I
recommend, following the Service's Executive Committee review of the
Use of Force Report in June of 2001, that an Action Plan be
developed focused on:
-
mandatory training requirements for both those
who authorize the use of force and those involved in using force;
-
reducing the number of instances of
non-compliance with policy;
-
limiting the number of incidents resulting in
the use of force; and
-
ensuring that thorough, timely, written
reviews are undertaken by Health Care and Women Offender sectors.
I
recommend that this Action Plan include measurable target levels
with respect to the number of incidents, the number and type of
policy violations and the establishment of specific time frames in
terms of meeting training requirements.
This
Action Plan should be finalized by the end of November
2001.
9. Inmate Injuries and
Investigations
There are four inter-related
areas of concern associated with this Issue: institutional violence,
inmate injuries, suicides and the Service's internal investigative
process. I concluded last year's Annual Report on this Issue stating
that there needed to be a clear focus brought to these areas of
concern, which have been under review for a number of years, with
specific and immediate action taken. "The Service must commit itself
to the development of a review and investigative process that is
responsive to incidents of institutional violence, inmate injuries
and death so as to ensure that they are kept to an absolute minimum
consistent with their legislative responsibilities of maintaining a
safe and healthful environment".
There is limited tangible
evidence that these areas of concern are being reasonably
addressed.
a) Institutional
Violence
The Correctional Service in
1998 acknowledged that institutional violence was a serious concern.
They agreed at that time to expand their reporting of institutional
violence to include a wider range of indicators to provide a more
representative picture. The Service also indicated that their data
would be analysed and appropriate actions would be taken.
The Service in April 2000
acknowledged "the importance of monitoring a wide spectrum of
information such as assaults, use of force incidents, inmate
injuries and involuntary transfers as these could be indicative of
institutional pressures and problems". They also committed to
"improving the automated information system by revisiting issues of
accuracy of data and types of information recorded".
In responding to this issue in
March 2001, the Service made no reference to either its information
system on institutional violence or their commitment to monitor and
report on institutional violence. Our subsequent request for
information on the specifics of the data being collected, and the
reports and analysis produced to date on institutional violence was
met with silence.
The information the Service
currently collects is neither specific to, or reflective of,
institutional violence. For example, the Corporate Results Report
for 2000-2001 indicates that there were 53 major inmate assaults,
yet from a review of individual incidents we know there were three
to four times that number of assaults that resulted in offenders
receiving medical attention in outside hospitals. The Service
produces no report specific to institutional violence, provides no
analysis of the data it does collect and there is no evidence of
Senior Management comment or direction on institutional
violence.
In short, despite their
previous commitments, institutional violence does not appear to be
viewed by the Service as an area of serious concern.
I recommend that the Service take
immediate steps to fulfill their previous commitments to the
monitoring of institutional violence through:
-
the implementation of an
information system capable of capturing accurate and reflective
data;
-
the production on a quarterly
basis of analytic reports; and
-
the review of these reports, as
a standing item, at the Executive Committee.
I recommend that Institutional
Violence become a standing item at the Service's Executive Committee
commencing September 2001.
b) Inmate
Injuries
The Service does not have a
national policy on the recording, reporting and review of inmate
injuries. The Commissioner of Corrections in 1994, in part as a
response to a recommendation from this Office, issued an Interim
Instruction on the Recording and Reporting of Offender Injuries. The
stated objective was:
- to establish a consistent framework for
reporting and recording injuries to offenders;
- to provide for the systematic review of
the circumstances of injuries in order to ensure that these causes
are subject to appropriate review and to investigate where
required by law; and
- to contribute to the maintenance of
healthful and safe living and working conditions through
corrective actions taken to prevent the incidents and recurrence
of accidents and willful acts involving injuries.
A draft Commissioner's
Directive with the same stated objective was circulated for
consultation purposes in 1996, but was never promulgated.
Currently the Service has no
clear picture of how many offenders were injured during the past
year as a result of work or program activities, assaults, drug
overdoses, use of force incidents, attempted suicides, or
institutional disturbances. The Service as well has undertaken no
review of inmate injuries associated with any of the above. I have
recently been advised that the Service has initiated a
"comprehensive review of the ways in which offender injuries are
captured, reported and analyzed as part of our mandate to provide
safe and secure custody of incarcerated and supervised
Canadians."
This review is scheduled to be
completed by the end of May 2001.
Although I acknowledge the
Service's most recent commitments in this area, I believe inmate
injuries should be a clearly defined priority issue for the
Service.
I
recommend that the Service implement a national policy on the
Reporting, Recording and Review of Offender Injuries to
ensure:
- the timely and
accurate recording of injuries and the circumstances leading to
those injuries;
- the quarterly
analysis of the information collected on offender injuries; and
- the review by
the Service's Executive Committee of the quarterly reports on
offender injuries.
I
recommend that the Service's policy on the Reporting Recording and
Review of Offender Injuries be issued by October 30,
2001.
c)
Suicides
I stated in last year's Annual
Report that the Service's approach to the early identification and
treatment of potentially suicidal individuals was uncoordinated and
ineffective. I concluded that "the delay in implementing national
policy, procedures and training programs in the area of suicide
prevention was inexcusable".
The Service's "draft" policy on
the Prevention and Management of Suicide and Self-Injury has been in
consultation for three years.
I
recommend that the Service immediately implement national policy on
the Prevention and Management of Suicides and
Self-Injury.
I
recommend that the Service immediately initiate a review of the
staff training needs associated with the implementation of this
policy and provide the necessary resources to meet those
needs.
I
recommend that all incidents of attempted suicide and self-injury be
investigated and that a psychologist, independent of the
institution, be a member of the investigative team.
I
recommend that all the investigations of suicides, attempted
suicides and self-injury be reviewed nationally on a quarterly basis
and that the results of these reviews be a standing agenda item for
the Service's Executive Committee.
d)
Investigations
The areas of concern associated
with the Service's investigative process over the years have
centered on:
- the excessive delays in both finalizing
investigative reports and initiating corrective action in response
to the report's recommendations;
- the interpretation of what constitutes
"serious bodily injury" as per S.19 of the Corrections and Conditional Release Act;
and
- the thoroughness and coordination of
reviews at the national level of investigations into incidents of
inmate death and serious bodily injury.
This Office has continued to
encounter, over the course of this year, incidents where the Service
took six to eight months to finalize an investigation. We also
continued to find situations where corrective action in response to
recommendations from investigations were pending more than a year
after the completion of the investigation report. The Service has
acknowledged problems in these areas and has recently introduced a
new process for national investigations. This new process calls for
the completion of the investigative report within 45 working days
and the verification of the action plans on the report's
recommendations no later than six months after the incident. I am
advised that the regions have adjusted their process to meet these
expectations and that the new procedure will be monitored on an
ongoing basis.
I
recommend that the specific time frames for the completion of
Investigative Reports and the Verification of Action Plans be
incorporated into the Service's policy on
Investigations.
I
recommend that the results of the Service's monitoring of the
Investigative Process be reported on a quarterly basis and reviewed
by the Executive Committee.
I
recommend that all investigative reports into inmate death or
serious bodily injury be provided to this Office no later than 45
working days after the incident.
Section 19 of the Corrections and Conditional Release Act
requires that the Service convene an investigation when an inmate
dies or suffers "serious bodily injury". The Act further requires
that a copy of the investigative report be forwarded to the
Commissioner or designate and this Office.
The Service has defined serious
bodily injury as: "any injury which endangers life or which results
in permanent physical impairment, significant disfigurement or
protracted loss of normal functioning. It includes, but is not
limited to, major bone fractures, severing of limbs or extremities,
and wounds involving damage to internal organs".
I have had concerns since the
enactment of the legislation in 1992 with the inconsistent and
limiting nature of the Service's interpretation of what constituted
"serious bodily injury". The Service in response to these concerns
introduced a "protocol" in February 2000, developed jointly by the
Security and Health Services Divisions. The protocol, by involving
Health Services in identifying when an inmate has sustained "serious
bodily injury" and implementing a monitoring process at the national
level, was to ensure a consistency in the application of the policy.
Their protocol has not worked. Again this year we have reviewed a
number of cases where inmates have sustained broken bones, multiple
stab wounds causing damage to internal organs resulting in emergency
surgery which the Service concluded were not serious bodily
injuries.
I have recently been advised,
as a result of our referral of these cases to the Service's
attention that "a revision to the serious bodily injury definition
is being considered".
In addition there is limited
evidence that even within the parameters of the Service's current
interpretation of what constitutes the convening of an investigation
pursuant to S.19 of the CCRA that the Service has a tracking system
for these investigations or that these investigations are being
thoroughly reviewed at the national level.
I
recommend, with respect to serious bodily injury and investigations
convened pursuant to Section 19 of the Corrections and Conditional Release Act,
that the Service take immediate steps to ensure that:
-
a
reasonable definition of "serious bodily injury" and guidelines on
the interpretation of that definition are provided to the field;
-
the
determination on the seriousness of the injury is made by a
licensed health care professional;
-
all
S.19 boards of investigation include a health care
-
professional independent of the institution
where the incident occurred;
-
a
tracking system is in place at the national level for all
investigations of incidents resulting in death and serious bodily
injury (S.19 investigations);
-
all
S.19 investigations are reviewed nationally with a summary report
on the recommendations and corrective actions produced quarterly;
and
-
quarterly reports on S.19 investigations are
provided to the Commissioner.
I suggested last year with
respect to the areas of concern associated with institutional
violence, inmate injury and death and the Service's review and
investigative processes that there was a need for a re-focusing. I
suggest this re-focusing needs to begin at the Senior Management
level of the Service and needs to begin immediately.
I
recommend, to further emphasize my position on these matters, that
the following be standing agenda items at all Senior Management
meetings:
- offender
suicides and attempted suicides;
- offender death
and serious bodily injury;
- institutional
violence; and
- investigations
and systemic reviews of incidents resulting in injuries, death and
institutional violence.
10. Sharing of Information with
Police on Release of an Offender
Issue:
Whether the Service is legally obliged to inform an inmate and to
permit the inmate to make representations before the Service shares
information about the inmate with police at the time of his/her
release.
Sub-section 25(3) of the CCRA
provides: (Service to give information to police in some
cases) (3) Where the Service has reasonable
grounds to believe that an inmate who is about to be released by
reason of the expiration of the sentence will, on release, pose a
threat to any person, the Service shall, prior to the release and on
a timely basis, take all reasonable steps to give the police all
information under its control that is relevant to that perceived
threat.
In September 1998, an offender
complained to us that a significant amount of file information had
been transmitted to the local police without the offender having
been forewarned of this action or given any opportunity to comment
on the disclosure. For the offender, the issue was not only the lack
of notice but the absence of any indication of precisely what files
had been disclosed and what personal and sensitive material may have
been included therein.
In our subsequent
communications with the Service we took the position that there
should be careful consideration of the relevance of information
whose disclosure is proposed to the belief that a threat to some
person exists.
Moreover, we stated that the
offender involved should have the right:
- to be notified of the information that the
Service proposes to disclose
- to make representations about what should
be disclosed before a final decision is taken
Our position on offender
representations is based on the traditional common law duty of
administrative fairness that the Courts have recognized in
circumstances where individuals are faced with decisions that may
adversely affect their rights. This common law duty is clarified in
s.27 of the CCRA.
Beyond legal considerations is
the simple point that disclosure of information in such cases is
liable to have significant effects on the offender in the community.
Moreover, the offender can never be sure what might be disclosed,
and to whom, by the police. This is all the more problematic if some
of this information is inaccurate, incomplete or otherwise
misleading.
Given these concerns,
permitting an offender to make representations before disclosure is
a reasonable approach. The importance of ensuring accuracy and of
avoiding disclosure other than as strictly required in such cases
cannot be overstated.
The Service's response to our
recommendations has evolved in stages.
As of February 2000, the
Service had agreed to require staff to review the proposed
information package under ss. 25(3) very carefully in order to
ensure relevance of the information, particularly where health care
information is to be disclosed. Nevertheless, the Service retained
its view that no notice or opportunity to make representations was
required.
By December 28 2000, the new
Commissioner had agreed to provide notice to offenders of the
information to be disclosed. This undertaking was implemented in an
Interim Instruction that was issued on February 6, 2001. This
instruction requires staff to notify the offender of the information
to be disclosed at least 90 days prior to release on warrant expiry,
the same juncture at which the package is to be sent to police
forces.
Offenders are to be notified of
their right to complain about the disclosure through the inmate
grievance procedure, a complaint to the Privacy Commissioner or a
complaint to our Office.
Very recently, the Commissioner
agreed to provide offenders with the opportunity to comment on the
information that the Service proposes to disclose before the
disclosure takes place. This will give offenders a reasonable
opportunity to comment on the appropriateness of the disclosure.
As a result of this agreement,
we withdrew our request that the matter be referred to a third party
for dispute settlement.
We are pleased that this matter
appears to have been resolved and I
recommend that, at its earliest possible convenience, CSC implement
its policy that, before taking any decision to disclose information
pursuant to ss.25 (3) of the CCRA the Service:
- identify to
the offender concerned the information to be disclosed and
- provide the
offender with a reasonable opportunity to make representations on
the appropriateness of disclosing any of the information.
11. Allegations of Staff
Misconduct
Issue:
The need for a consistent, distinct process to ensure that inmate
complaints of staff misconduct are investigated in a timely,
thorough and fair manner
Inmates often express their
reluctance to complain to institutional management about
inappropriate, even criminal behavior by staff. There is a
perception, warranted or not, that such complaints will not be
conscientiously and promptly reviewed by a person in authority and
that appropriate action will not be taken if a complaint is
upheld.
In September 1999 our Executive
Director wrote to the Director General of Offender Affairs on this
subject and stated:
"What I wish to bring forward
is the issue of fairness and timeliness in such cases as a matter of
policy. Accordingly, we offer the following suggestions for further
discussion.
Inmates
should be encouraged to report any case of abuse, threat or physical
harm by staff, as soon as this occurs, to the Deputy Warden or the
person in charge of the institution. There should be procedures in
place for this to be done in a confidential fashion and for the
complaint to be forwarded (or an interview convened)
immediately.
On
receipt of the complaint, the designated staff member, above, should
inform the inmate of his/her immediate right to lay a complaint with
the police and to consult legal counsel. The inmate should also be
encouraged to record the following information [or provide
information so that it may be recorded]:
- The precise facts
of the incident and any other events or information which may have
led to it
- Any witnesses to
the incident or to any other events which might support the
inmate’s version
- Any written records
which may exist relevant to the incident
- Any bodily harm
caused by the incident
Where an
inmate claims to have been injured he/she should be immediately
referred to the Health Services Centre and the appropriate report of
inmate injury should be filled out. The inmate will receive a copy
of all the above information.
I
recommend that there be consideration of whether to keep the inmate
away from the accused staff member until the matter is
resolved.
Police
should be provided with all the above information when they
attend.
Whether
or not a complaint is laid with the police, the Warden, on reading
the information which is gathered, above, should determine whether
to convene an investigation into the matter, or to suggest that such
an investigation be convened by the Regional Deputy Commissioner or
the Commissioner.
There
should be at least one community representative on the Board of
Investigation into such allegations.
All
complaints and resultant inquiries should be forwarded to our
Office.
On a
final point, it is clear that investigations into such matters and
the staff disciplinary process might come into conflict at some
point with respect to employee obligations to provide information,
administrative fairness and the like.
These
elements would have to be considered in framing any new
procedures".
Following months of discussions
and correspondence, CSC believes the matter to be resolved, in that
they have taken steps to ensure that:
- Direct inmate access to police to lodge
complaints is provided
- A new process for investigating complaints
of sexual harassment by staff will soon be in force
- Improvements have occurred to the process
of reporting and recording inmate injuries
Beyond these specific measures
CSC believes that current policy and practice otherwise addresses
our recommendations.
My objective throughout our
discussions with the Service has been to provide a distinct,
coherent and inclusive system to which inmates may refer and have
access in order to achieve timely and fair investigation and
appropriate redress.
This system should ensure
confidentiality and be perceived to protect against reprisals,
while, at the same time, sanctioning vexatious, frivolous or bad
faith complaints.
I do not believe that the
Service responses, viewed as a whole, provide what I have
recommended.
First, as we have pointed out
on more than one occasion, the specific measures advanced by the
Service in no way cover the broad range of staff misconduct that
might occur.
Second, a number of the
measures that CSC states exist in other policies do not provide the
timeliness and informational thoroughness that we advocate.
Finally, there are gaps in the
issues and facts that are considered in the policies.
Moreover, even if the
"aggregate" of current policy were sufficient, this would not
provide the self-contained process that is required. It is essential
that inmates not be required to sift through a variety of policies
in order to achieve an effective remedy.
The effectiveness of the
investigation and the willingness of inmates to seek redress will
surely be enhanced if a visible, fair and complete mechanism is made
readily available for the review of serious and sincere
complaints.
I
recommend that the Service fashion a separate and well-publicized
policy for investigation of inmate complaints of staff misconduct
that will include the elements that we suggested in September 1999,
including, at least:
- early
recording by the complainant of relevant information
- timely
referral of the complainant to Health Services in applicable cases
- isolation of
the complainant from the accused staff member during the
investigation
- provision of
complete information to police at an early juncture
- a timely
decision by the Institutional Head on whether to convene an
investigation
- community
representation on investigation panels
- copying of all
documentation to our Office.
12.
Involuntary Transfer and Consent to Mental Health Interventions
Issue: Whether the involuntary placement of
inmate in a psychiatric hospital for extensive assessment by
psychiatrists constitutes unlawful treatment without
consent
An inmate was transferred from
a medium security institution to a psychiatric hospital operated by
the Correctional Service. The stated purpose of the transfer was for
an assessment of risk for use at an upcoming National Parole Board
determination of whether the inmate should be detained until Warrant
Expiry, rather than being released after 2/3 of the sentence had
been completed.
The inmate did not wish to
participate in any assessment and, indeed, had expressed the wish to
remain in custody until the end of the sentence.
Our Office expressed its
objection to the transfer because we found that the placement in the
hospital (a maximum-security institution) violated s. 88 of the
CCRA, which provides that inmates must not be treated without their
informed consent. The Service responded that the assessment that was
the object of this transfer was not "treatment" for the purposes of
the CCRA.
I wrote to the Commissioner on
December 4, 2000, and re-iterated our view, based on our review of
case law and legislation, that the intended procedure was indeed
treatment and that, in any event, CSC policies underline that
consent is required for assessments.
The Assistant Commissioner
Corporate Services responded on February 2, 2001. He stated that it
was "widely recognized" that assessment of risk in a correctional
context is distinguished from assessment or treatment in a medical
context. The risk assessment was conducted at the hospital by
observing the inmate's conduct and by reference to relevant files.
Only thereafter would assessment or treatment in a medical context
be instituted, and these would require the patient's consent.
He also stated that the
transfer constituted the least restrictive way of achieving the
legitimate correctional objective of assessing risk prior to release
consideration by the National Parole Board.
We maintain our view of the
matter. The prolonged duration of the observation and review,
conducted as it was by psychiatric experts, clearly rendered it an
assessment within the scope of medical treatment. Compelling an
inmate to undergo this process without consent cannot be considered
a legitimate correctional objective. Nor can it be considered the
"least restrictive measure" given the maximum security environment
in which it took place.
This case sets an unfortunate
policy precedent. The Service is permitted to circumvent the
statutory requirement of informed consent to medical treatment and,
in doing so, to increase an inmate's institutional security level.
The Service does so simply by characterizing a "risk assessment" a
procedure that, by any reasonable standard is a medical
procedure.
I
recommend that the Service:
- rescind its
policy of involuntarily transferring inmates to psychiatric
hospitals under the guise of "risk assessment"
- clarify that
all procedures involving significant, and more than transient,
treatment, assessment, observation or evaluation by physicians or
health care professionals is to be considered treatment for the
purposes of s.88 of the Corrections and
Conditional Release Act, and is thus subject to the informed
consent of the inmate involved
- ensure staff
compliance with the provisions of the CCRA and applicable
Provincial health services legislation in all matters governing
the admission and treatment of inmates in psychiatric
institutions.
13. Critical Incident Stress
Intervention for Inmates
Issue:
The timely and consistent provision of professional intervention for
offenders following crisis situations.
A Correctional Service of
Canada Investigation into the murder of an inmate in April 1999
recommended that: "The Service study how to improve critical
incident stress management interventions with inmates. The policy
and procedures for managing critical incident stress intervention
with staff now appears to be well developed and working effectively.
By comparison, the management of critical stress intervention for
inmates is insufficiently articulate in defining the expectations on
staff called to support inmates following a crisis."
The failure of the Service to
reasonably manage interventions with offenders following crisis
situations had been previously noted by both this Office and the
Service's own investigations. In response to the April 1999
recommendation the Service undertook to prepare a document " which
describes in appropriate detail the nature of the services to be
provided to offenders following critical incidents, who is to
provide them, and when the services are to be provided". It was
projected that this document would be completed by January 15,
2000.
In June 2000 we were informed
that a policy had not yet been finalized and were provided with a
draft. In August 2000, following our review of the draft, we
provided the Service with the following findings:
- The Service's failure to have clearly
articulated policy and procedures for managing critical stress
intervention with inmates, 16 months after the incident, is
unreasonable and totally inconsistent with the Service's stated
Policy Objective on Investigations: "to present relevant and
timely information, that will help prevent similar incidents in
the future and to demonstrate the Correctional Service of Canada's
accountability."
- The current draft policy on intervention
fails to define in appropriate detail, the nature of the service
to be provided to offenders, who is specifically to provide them
and when.
I
recommend that national direction be issued immediately
which:
- ensures that
critical incident stress management services are mandatorily
offered to offenders, and
- provides a
clear detailing of the specific services to be available, who is
to provide these services and when they are to be provided.
A further draft of the policy
was forwarded to our attention in October 2000. While the proposed
changes to the policy addressed the specifics of our recommendation
with respect to content, no date on the proposed implementation of
the policy was provided. In December 2000 we were advised that; "If
the Policy Committee recommends acceptance of the policy, the
earliest it could be in force would be by early summer 2001."
In January 2001, we restated
our recommendation for immediate national direction on this matter
and concluded that the Service's delay in taking corrective action
was beyond unreasonable.
In March 2001, the Service
offered the following comment; " Your concerns with regard to the
delay in promulgating the policy on this issue are duly noted. As
you were advised in earlier correspondence, the implementation of
this policy, as well as others, was deferred following the
establishment of the EXCOM Policy Committee in March 2000. The
policy Committee has now reviewed the CISM policy (February 22,
2001) and recommends that Personnel and Training proceed with the
EXCOM signoff of the policy. As previously mentioned, the earliest
this policy can be in place would be the summer of 2001. A four
month time frame is accounted for by the six to eight weeks required
for EXCOM signoff, a month to resolve any issues raised during
signoff, and a month for a final editing and review by Directives
Management, Legal signoff and transmittal for signature by the
Commissioner."
It has now been more than two
years since the Service's Board of Investigation made its
recommendation on critical incident stress intervention for inmates.
Both the Service's investigative process and this Office over the
past two years have noted further specific incidents where the
Service continues to fail to provide reasonable intervention. Yet,
to date, no action has been taken.
14. Inappropriate and Demeaning
Strip Search Procedure
Issue: The excessive delay in admitting
inappropriate action and offering an apology
In May 1999, following an
institutional disturbance, inmates were strip searched on return to
their units. In one unit the procedure required uncircumcised
inmates to retract their foreskin.
We wrote the Service
questioning this practice and were advised that a regional
investigation had been convened into the disturbance and that the
strip searching procedure in question would be reviewed within the
context of the investigation.
A copy of the investigative
report was received in December 1999 and provided no comment on the
strip searching procedure. We again wrote the Service in January
2000 requesting the Senior Deputy Commissioner's comments and a
detailing of the actions taken in response to the inappropriate and
demeaning strip search procedures previously noted.
The Service's initial position
on this matter was that the procedure in question was conducted in
accordance with the training afforded staff within that region. We
were further advised that subsequent training had been provided
"with respect to the searching of inmates to ensure that the very
essence of the law and our policy is respected".
As the Service's comments on
this matter were less than clear we wrote the Service again in March
2000 asking: "Is it the Service's position that requiring inmates to
pull back their foreskin is an authorized element of a strip search?
Under what circumstances is such action authorized?"
The Senior Deputy Commissioner
responded in April 2000 stating, "I would like to make it clear that
the Service does not condone this particular searching technique
under the circumstances that it occurred …To avoid similar incidents
from being repeated a memorandum has been issued to institutional
heads to ensure that staff are not routinely asking uncircumcised
inmates to retract their foreskin, unless there are specific and
reasonable grounds to believe that contraband is hidden in this
manner. A copy of this memorandum was sent to your office as
verification of the Region's commitment to stop this unauthorized
strip searching practice".
We wrote the Service again in
May 2000 asking whether the inmates who were subject of the strip
search had been notified that the technique was not condoned and
offered an apology for the Service's inappropriate action. The
Senior Deputy Commissioner responded in July of 2000 stating that
"having reviewed these issues, we have concluded that notification
and apologies are not required in this situation".
In support of this position the
Service offered the following: "Section 45 of the Corrections and Conditional Release
Regulations requires inmates to, among other things, bend over
or otherwise enable staff to perform the visual inspection. Given
the wording of section 45, it would not be unreasonable for staff to
believe in good faith that they had the legal authority to make this
type of request. Based on these facts, the Service is not prepared
to concede that their action was inappropriate".
The Senior Deputy Commissioner
was advised in August 2000 that we found the Service's decision on
the offering of an apology and their unwillingness to concede the
inappropriateness of the strip search procedure to be unreasonable.
I further reviewed these matters with the Commissioner in November
2000 and was advised in December 2000 that she had asked the
Regional Deputy Commissioner to issue an apology to each offender
that was subjected to the irregular search. An apology was issued to
each offender on January 29, 2001.
While I appreciate the
Commissioner's personal review of this matter and the timeliness of
her corrective action, it should never take 20 months to admit an
error and offer an apology.
15. Mental Health Services for
Female Offenders
Issue:
The provisions of mental health programming in a coordinated,
responsive and timely fashion by qualified
professionals
A female offender housed within
a maximum security unit of a male penitentiary committed suicide
after 51 consecutive days in segregation. Following our review of
the circumstances associated with this tragic incident, inclusive of
the Service's internal investigation, the results of the Coroner's
Inquest and offers to meet with the Service to review concerns
raised by this case, we provided the Service with the following
finding:
The
Correctional Service of Canada failed this individual. This failure
was not the result of an absence of effort or caring by front line
staff. This tragedy speaks directly to the Service's
failure:
- to adequately
resource the Women's Maximum Security Unit, given its increase in
population and programming requirements;
- to establish
standards for the certification and training of mental health
professionals working with high risk, high need female offenders;
- to reasonably
resource, implement and monitor their Mental Health Strategy for
Women Offenders as approved by the Service in 1997;
- to
operationalize their Regional Intensive Healing Program for
Federally Sentenced Women designed to co-ordinate the assessment
and programming efforts of the Regional Psychiatric Centre and the
Women's Maximum Security Unit; and
- to finalize a
national policy on the Prevention and Management of Suicide and
Self-Injury, a policy which has been in consultation for three
years.
In summary: The subject's
psychiatric diagnosis of October 1999, while in the provincial
correctional system, raised significant mental health concerns. She
was transferred to the federal system in November 1999. This
diagnosis was not documented on any file at the federal institution.
The Intake Assessment Report completed by the Service states "no
mental health concerns or previous suicide history". The psychology
file is bereft of relevant information with the first reference to
suicidal ideation's or self-injury not mentioned until January 21,
2000. The subject is placed in Administrative Segregation on
December 16, 1999, and commits suicide February 5, 2000, following
51 consecutive days in segregation, "with no sight", according to
the Service's Board of Investigation, "as to when she would be
released".
The psychological assessments
and reports required by the Service's Intake and Segregation
policies were inadequate. The "Psychologist" assigned these
responsibilities was new to the Service, had received no training
and was unaware of her responsibilities in these areas. There is no
evidence that the Warden, responsible for administrative segregation
placements, or the Independent Chairperson, responsible for punitive
segregation sentences, were aware of or advised of any mental health
concerns associated with this case. The "Mental Health Nurse" who
last met with subject in Segregation had been employed for only
three weeks, with no specific training having been provided in terms
of high risk, high need female offenders, self-injury or suicide
prevention. There is limited, if any in-house training provided to
mental health staff related to the assessment and treatment of high
risk, high need female offenders.
The professional registration
and supervision standards required by the Service for those
providing psychological services were not met by those identified as
"Psychologists" within the Board of Investigation Report. The term
"Mental Health Nurse" used by the Board of Investigation throughout
its Report reflects the nurse's work location, Health Care Centre vs
Mental Health Unit, not their training or professional
qualifications. There are no requirements for nurses assigned to the
Mental Health Unit to be registered psychiatric nurses. The Board of
Investigation through the unqualified use of the terms
"Psychologist" and "Mental Health Nurses" has, perhaps
unintentionally, left the impression of a level of professional
mental health services beyond that which was actually available.
Although the subject was seen
by numerous staff members who were obviously concerned with her well
being, their efforts were, at best, uncoordinated. One of the
"Psychologists" for example, after having two counselling sessions
in segregation with her during early December, went on holidays.
There is no evidence that anyone followed-up. The next recorded
counselling session with the "Psychologist" is February 4, 2000, the
day before the suicide. There is no documented evidence of any
consultation or case planning between the psychiatrist,
psychologists, nursing staff or elder. There is no evidence of any
follow-up on the recommended transfer to the Regional Psychiatric
Centre. In short, no one appears to be in charge of this case.
The Warden wrote the Regional
Deputy Commissioner in January 2000 saying she did not have adequate
resources to reasonably operate the Women's Unit. These Maximum
Security Units, in male penitentiaries, by the Service's own account
house high-risk, high need women. The Service has no staffing
formulae for the provision of mental health services and programming
within these Units, despite the fact that they have been in
existence for four and a half years.
The bottom line was that a
young woman died, in part, because the interventions, resourcing,
staff training, programs and policies designed to address her needs
remain on the bureaucratic drawing board.
I
recommend that the Service immediately initiates an Audit of the
mental health programming provided to Women Offenders and that the
Audit Team:
- include mental
health professionals from outside the Service;
- focus on the
standards for the certification and training of mental health
professionals providing the services;
- pay specific
attention to the mental health services being provided at existing
Women's Maximum Security Units; and
- meet with
representatives from this Office during the Audit.
I
further recommend that the Audit be finalized by November 15,
2001.
A recent response from the
Service does not address the specifics of either our findings or the
recommendation.
16. Sexual Harassment
Policy
Issue:
The absence of a sexual harassment policy inclusive of a thorough,
independent and timely mechanism for addressing offender
complaints
The Correctional Service of
Canada in 1995 lifted its restrictions on male employment in women's
prisons. Specifically the Service decided that men could fill the
roles of Primary Workers in the regional facilities, including the
supervision of women inmates in their living units.
Madame Justice Arbour in her
1996 Report with respect to cross-gender staffing recommended, in
addition to the development of explicit protocols, selections and
training processes, that:
- The sexual harassment policy of the
Correctional Service be extended to apply to inmates;
- A woman be appointed to monitor and report
annually, for the next three years, on the implementation of the
cross-gender staffing policy and on any related issues, including
the effectiveness of the extension of the sexual harassment policy
to the protection of inmates.
The Service's initial response
to Justice Arbour's recommendation on the extension of its sexual
harassment policy was; "Accepted in Principle-Research into specific
sexual harassment policies to protect offenders has begun. A draft
issue paper will be completed by May 30, 1997."
A Cross-Gender Monitor,
independent of the Correctional Service, was appointed in January
1998, with a mandate consistent Justice Arbour's recommendation. The
Cross-Gender Monitor's Third Annual Report was provided to the
Correctional Service in September 2000. With respect to the
extension of the Service's sexual harassment policy the Report
states: "As recommended in our First and Second Annual Reports, it
is recommended that CSC develop a sexual harassment policy that
clearly prohibits sexual harassment of inmates by staff. This policy
must clearly articulate (a thorough, independent and timely)
mechanism for handling such complaints".
This Office has been
communicating with the Correctional Service of Canada for a number
of years in an attempt to promote the development and implementation
of a sexual harassment policy. Our last representations were
provided to the Service in February of this year in response to yet
another draft policy on Investigations of Allegations Made By An
Offender Of Sexual Harassment On The Part Of An Employee Or
Contractor.
In response to our latest
representations we were advised that "once the consultation results
have been evaluated the Service will further articulate a response
to your concerns and/or incorporate them into future drafts of the
policy."
It has now been five years
since the Service accepted in principle the recommendation of
Justice Arbour. Our review of the Service's management of sexual
harassment complaints from offender indicates clearly the need for
national policy and direction for the investigation of such
complaints. The time for "future draft policies" has long
passed.
I
recommend that the Service immediately implement a policy on the
Investigation of Allegations made by an Offender of Sexual
Harassment which provides:
- that
investigations are convened by the Deputy Commissioner of Women or
if the complainant is male the Regional Deputy Commissioner;
- that a copy of
all convening orders is forwarded to this Office;
- that all
members of the Board of Investigation are trained in managing
sexual harassment complaints;
- that at least
one Board member is from outside the Correctional Service and that
all Board members are independent of the facility where the
complaint was filed;
- that
complainants are consulted both during the investigation and prior
to finalizing the report in order to provide additional
information and comment which will be recorded as part of the
final report;
- that a copy of
all finalized reports is provided to both complainants and this
Office in a timely fashion; and
- that
responsive follow-up action by the convening authority is
initiated in a timely fashion.
17. Classification of Offenders
Serving Life Sentences
Issue:
Whether the Service can require all offenders serving life terms to
serve at least the first two years of the sentence in maximum
security institutions
On February 23, 2001, the
Correctional Service issued a new policy to the above effect.
The policy change was
accomplished by a simple mathematical mechanism. The "Custody Rating
Scale" a tool which assigns values to the three elements of offender
security classification - Public Safety Risk, Escape Risk and
Institutional Adjustment - was revised so that a life sentence
automatically results in a prohibitively high Public Safety rating
for a two-year period.
As a result, irrespective of
any other considerations "lifers" must serve their first two years
in a maximum-security setting. Only in exceptional cases, by
decision of the Assistant Commissioner Correctional Operations and
Programs may the placement be "overridden" and the offender placed
at lower security.
Obviously this change will have
a serious effect on offenders who are sentenced to life terms. This
is all the more the case because the frequency of review of their
security classification has also been revised under the new policy.
This will occur every two years, throughout their sentences,
contrary to the annual reviews that will take place for other
offenders.
The adverse consequences of the
new policy are not limited to those directly affected. As maximum
security populations grow - recent data indicate that half of the
target group would normally be placed in lower security - this will
give rise to increased expenses and staffing needs, for example for
housing, security, supervision, programming and case preparation
purposes.
Moreover the effect of being
housed in the strictly controlled and, to say the least, stressful
maximum-security environment will produce special challenges and
disadvantages for young, aboriginal, older and disabled offenders.
Attempts to resolve these issues will again require added
resources.
The current situation of Women
Offenders will produce more even drastic results. More women will be
housed in the unacceptable circumstances of maximum-security units
in men's institutions. In Ontario, where no such units exist, women
will be effectively exiled to other Regions.
Notwithstanding the severity of
the above consequences, perhaps the most prominent casualty is the
Service's avowed commitment to compliance with the law.
It is not simply that this
policy flies in the face of the CCRA requirement to determine the
classification and housing of offenders on an individual,
case-by-case basis, according to a whole range of factors - not
simply the offence committed. It is not simply that the policy
patently ignores the statutory requirement of the least restrictive
custody, introducing the goal of retribution to a legislative scheme
that specifically disallows such a consideration.
The real problem is that this
was done virtually on the spur of the moment, targeting, for no
apparent urgent or valid purpose, a small element of the
correctional process. The real problem is that this occurred in
marked contradiction of the Service's purported response to the
Arbour Commission's strong recommendations that CSC make compliance
with the law its priority.
If this kind of measure can be
adopted in such a hasty and unconsidered fashion over such a
discrete aspect of the correctional system, what message does this
send:
- to the line staff person who has been
told, since Arbour, to observe the spirit and the letter of the
law in his/her every action, even where this is extremely
inconvenient?
- to the inmate who wants to believe that
his/her expectations about basic aspects of custody and release
will not be suddenly modified for no apparent reason?
- to the community representative whose
ability to effect solutions in cooperation with the Service must
be based on some reasonable assurance the rule of law will not be
ignored?
My Office has heard, directly
or indirectly, numerous complaints about the new policy from members
of all these groups. In particular, I wish to share some of the
comments that we have received from non-governmental
organizations.
From the
Canadian Association of Elizabeth Fry Societies:
"This policy imposes an arbitrary
standard that flies in the face of CSC's over-arching
responsibilities to utilize the least restrictive correctional
interventions and environments consistent with public safety. It
also will necessarily raise unfounded questions regarding the
value and importance of progressive community-based
programs."
From the
John Howard Society of Canada:
"Aside from the apparent
illegality of this policy, we also feel that it is fundamentally
bad correctional policy. It justifies the unnecessary use of
maximum security and that is abuse. The courts have already
upheld, in other circumstances, that unnecessarily high levels of
security are in themselves wrongful detention"
From the
Church Council on Justice and Corrections:
"We find
the decision draconian in nature. We believe it is a violation of
Correctional Service of Canada's mission statement and corrections
policy developed over many years. It could be a violation of the
law, which remains to be seen, and it certainly is a serious
undermining of the values and spirit of so many who work within [
CSC]".
From the
St. Leonard's Society of Canada:
"The policy
has no apparent foundation in research or evidence. It neither
furthers public safety nor the rehabilitation of the prisoner. In
fact, it may have the opposite effect by developing in the
correctional service a precedent for unfair treatment of prisoners
based on a very superficial framework of offence based management.
Arbitrary prison placement cannot be justified and should not be
tolerated. Denunciation is not the mandate of Corrections either
in law or theory."
I brought our concerns, and
those of the various community groups, to the Commissioner on April
9, 2001. Pursuant to s.177 -179 of the CCRA I found that the
Service's decision to create the policy was:
-
contrary to law
-
unreasonable
-
improperly discriminatory to
specified offenders groups
I recommended that the policy
be immediately reversed.
The Commissioner responded on
April 30, 2001. The essence of the rationale for declining my
recommendations and maintaining the policy was as follows:
"It is
important that CSC determine a security classification for the
offender by taking into consideration, amongst other factors, the
seriousness of the offence and the sanction imposed. In the case
of murder and the minimum life sentence, we are facing the most
serious offence and sanction that can be dealt with under our
criminal law. This is reflected in CSC's determination of the
initial security classification of the offender."
In my view the Commissioner
fails to address the specific points that I raised in my letter.
Moreover, she provides no link between the classification issues
that she cites and the need to implement the specific, onerous
measures contained in the policy. At the very least, one is left
wondering why this specific sanction was so suddenly necessary. As
compared to
- the "seriousness" of all other offences
and
- the classifications imposed for the same
offences on the day before the new policy was issued
…why was two years in a
maximum-security prison now an automatic requirement? What problems
had so suddenly arisen with the normal way of classifying offenders
that it became necessary to change course in mid-stream?
I have recommended that this
matter be referred to dispute resolution under the Memorandum of
Understanding between my Office and the Correctional Service.
Nevertheless I am including the
matter in my Annual Report because I wish to preserve the
opportunity for it to be addressed by the Minister and Parliament at
the earliest possible juncture.
As to the argument that a
retributive measure such as this policy is only just and appropriate
I can only say that this argument does not appear to reflect the
intentions of Parliament in enacting the CCRA. As well, it just
doesn't make sense in the context of a reasonable and coherent
approach to corrections.
Beyond this, I will simply draw
your attention to the following:
"We must
not forget that when every material improvement has been affected
in prisons, when the temperature has been adjusted, when the
proper food to maintain health and strength have been given, when
the doctors, chaplains and prison visitors have come and gone, the
convict stands deprived of everything that a free man calls life.
We must not forget that all these improvements, which are
sometimes salves to our consciences, do not change that
position."
Winston Churchill, 1910
I
recommend that the policy of adjusting the Custody Rating Scale to
ensure that offenders serving life sentences for first- and
second-degree murder are placed in maximum security penitentiaries
for at least two years be immediately rescinded.
18. Women Offenders
The position of this Office, at
the time of the decision in 1996, to place maximum security women
and women with serious mental health problems in male
penitentiaries, was that it was inappropriate. I indicated that such
placements, despite the Service's identification of these women as
"high risk, high need", were discriminatory and that regardless of
the accommodations made it was in reality a form of segregation. The
women were not only removed from association with the general
population of the institution they were housed in, they were as well
segregated from the broader general population of the women's
regional facilities. I argued that this form of segregation, based
on security classification and mental health status placed these
women, in terms of their conditions of confinement, at a
considerable disadvantage to that of the male offender
population.
I was initially advised in
September 1996 that these placements were "temporary" and that the
women would be returned to the Regional Facilities as soon as
possible. In September 1999 the Service announced the development of
an Intensive Intervention Strategy. This strategy called for the
modification and expansion of enhanced units at the regional
facilities to accommodate women offenders classified as maximum
security. The strategy as well called for the development of
Structured Living Environment houses for women with mental health
needs. The projected completion date for these changes, which would
allow for the closing of Women's Units in male penitentiaries, was
September 2001. I am now advised that the closing of these Women's
Units is expected in the Spring of 2002.
This continuing situation
remains totally unacceptable. These units in male penitentiaries
were neither intended nor resourced to manage high risk, high need
women offenders. The Service has never established a staffing
formula for these units, the staff were not initially selected with
regard to established criteria for working with women offenders and
specific training on the management of high risk, high need women
offenders has been limited.
The end result has been high
staff turnover, burnout, a significant increase in security
incidents, and low staff morale.
I
recommend, in addition to the Audit of Mental Health Programming for
Women, that an immediate review be initiated of the Women's Units in
Male Penitentiaries, focused on:
- resource
levels and staff training requirements to ensure the existence of
a safe, secure and humane living and working environment; and
- the provision
of programming, cultural and recreational activities consistent
with those available within the regional facilities.
I identified in last year's
Annual Report a number of matters which in my opinion required
immediate attention:
- the Service's 1997 Mental Health Strategy
for Women had not been fully implemented;
- the verification of the Service's security
classification tools for Women and Aboriginal offenders had not
been finalized;
- the Service's review of factors predictive
of suicidal behavior and self-injury had not been initiated;
- the failure of the Service to provide a
minimum security environment for women offenders consistent with
that provided to male offenders;
- the inordinantly high number of visible
minority women incarcerated (40%); and
- the disadvantaged position of Aboriginal
offenders which represented 23% of the incarcerated population,
yet only 11% of those on community supervision.
These areas of concern were
further detailed in a Report on Federally Sentenced Women's Issues
provided to the Deputy Commissioner for Women in October 2000. This
report concluded that "the failure of the Correctional Service of
Canada to fully implement Madame Justice Arbour's recommendations,
in particular that the position of Deputy Commissioner for Women be
one that has full line authority over women's corrections, has
stalled the implementation of comprehensive policies and procedures
to address the systemic issues that affect all Federally Sentenced
Women. Madame Justice Arbour's hope that the Service would be
creative in responding to the unique needs of women has not been
fulfilled".
I
recommend that the Service develop an Action Plan with specific
performance measurements and time frames to address:
- the full
implementation of the Service's 1997 Mental Health Strategy for
Women;
- the
verification and implementation of the security classification
tools for Women and Aboriginal offenders;
- finalizing
their review of factors predictive of suicide and self-injury;
- the provision
of a minimum security environment for women consistent with the
least restrictive principle of the legislation;
- the high
number of visible minority women incarcerated in federal
institutions; and
- the continuing
disadvantaged position of Aboriginal Women Offenders in terms of
timely conditional release.
I
recommend that this Action Plan be finalized and presented to the
Service's Senior Management Committee by November
2001.
I recommend that the Service re-visit its
rejection of Madame Justice Arbour's recommendation that, the
"women's facilities be grouped under a reporting structure
independent of the Region, with the Wardens reporting directly to
the Deputy Commissioner for Women".
There are currently significant
challenges facing the Women's sector. As I have detailed there are a
number of previous commitments yet to be actioned, the population
continues to increase and the eventual placement of maximum security
women at the Regional Facilities will measurably change their
correctional environments. The Deputy Commissioner for Women added
to her responsibilities a year ago those of the Service's Senior
Deputy Commissioner. I believe that both of these Deputy
Commissioner positions are full time jobs. I further believe that
without full time focused leadership and an acceptance of the
responsibilities recommended by Justice Arbour the challenges will
not be met.
I recommend that the Deputy Commissioner for
Women be staffed on a full time basis.
19. Aboriginal
Offenders
The discriminatory impact of
our criminal justice system and the resulting disadvantaged position
of Aboriginals caught up in that system has been known for decades.
While Aboriginals make up approximately 3% of the general Canadian
population they represent nearly 20% of the federal prison
population.
The areas of concern associated
with this Issue, go beyond over-representation and require a
focusing on what happens to Aboriginal offenders while in the care
and custody of the Correctional Service of Canada. A Task Force
report more than a decade ago indicated that Aboriginal offenders
were less likely to be granted temporary absences and parole, were
granted parole later in their sentence and were more likely to have
their parole suspended or revoked. This unfortunately remains the
reality despite a decade of effort.
I
recommend that the Service monitor on an on-going basis the impact
of their decisions on the Aboriginal Offender population, focusing
on:
- Segregation
- Transfers
- Discipline
- Temporary
Absence/Work Release
- Waivers,
Postponements and Adjournments of Parole Reviews
- Detention
Referrals
- Suspensions
and Revocations of Conditional Release
I
recommend that the results of this monitoring be reported on a
quarterly basis and reviewed by the Service's Executive
Committee.
A number of years ago I
made two recommendations intended to be a first step in addressing
the continued disadvantaged position of Aboriginal offenders. First
was that the Service ensure that a senior manager, specifically
responsible and accountable for Aboriginal programming and liaison
with Aboriginal communities, was a permanent voting member of
existing senior management committees at the institutional, regional
and national levels. Second, that the Service's policies and
procedures be independently reviewed to ensure that systemic
discriminatory barriers to timely reintegration were identified and
addressed.
The Service in response to the
first recommendation indicated that "Aboriginal Issues is now (as of
March 2001) a standing item on its executive committee agenda". They
further state that "the creation of a Director General position for
Aboriginal Issues ensures that relevant issues are discussed and
considered at the executive level".
The objective of my
recommendation was not the introduction of "Aboriginal Issues" at
the executive level, but rather that an Aboriginal perspective be
part of all considerations and decisions taken by the Service's
executive committees at all levels within the organization. Further,
the Director General is not a permanent member of the national
executive committee and the Service has provided no comment with
regard to the regional and institutional levels of the
organization.
In response to my second
recommendation concerning an independent review of policies and
procedures, the Service advised that the Office of the Auditor
General "will be conducting an inter-departmental audit of the
Aboriginal Justice System". Although I support this undertaking,
given the information provided by the Service to date, it is not
clear that the audit design, when finalized, will address the
discriminatory aspects of the Service’s policies and procedures. We
will be meeting with the Auditor General’s staff to review this
matter.
I do not believe that the
Service's responses to date have addressed either the specifics or
the intent of my earlier recommendations. I further believe that my
position on these matters is consistent with the intent of the
Parliamentary Committee* recommendations concerning the appointment
of an Aboriginal Deputy Commissioner and the evaluation of the
reintegration processes available to Aboriginal Offenders.
I
recommend, given the gravity of this Issue and the continuing
disadvantaged position of Aboriginal Offenders, that:
- a Senior
Manager, specifically responsible and accountable for Aboriginal
Programming and liaison with Aboriginal communities, be appointed
as a permanent voting member of existing senior management
committees at the institutional, regional and national levels; and
- the Service's
existing policies and procedures be immediately reviewed to ensure
that discriminatory barriers to reintegration are identified and
addressed. This review should be independent of the Correctional
Service of Canada and should be undertaken with the full support
and involvement of Aboriginal organizations.
* A WORK IN PROGRESS: The Corrections
and Conditional Release Act
Sub-committee on Corrections and Conditional
Release Act of the Standing Committee on Justice and Human
Rights
Status of Case Summaries from
1999-2000 Annual Report
Cases Involving
Strip Searches
ISSUE
1: Use of force to facilitate a rectal examination in the course of
a strip search without appropriate authorization or reasonable
grounds
ISSUE
2: Authorization to conduct a strip search on all offenders in a
facility in contravention of law and policy
On October 18, 2000, I spoke to
the new Commissioner about these cases, reiterating the points that
we raised in the 1999-2000 Annual Report.
The Commissioner responded
December 28, 2000.
Regarding the forced strip search
(issue 1) she indicated:
-
that she agreed that the
procedures used were inappropriate***
-
that the inmates were issued a
partial apology.
-
that a Task Force on Strip
Searches would be struck to ensure that these were carried out
properly in future
[ ***It should be noted that, in admitting that
the searches were inappropriate, the Commissioner did not mean that
they should not have taken place or that they were not justified.
She meant only that the inmates should have been warned, and given
the opportunity to comply, before force was used to effect the
searches.]
The Commissioner invited this
Office to assist in developing the scope and terms of reference for
the Task Force on Strip Searches. A preliminary meeting was held in
February 2001. The specific terms of reference and time frames are
being finalized.
With respect to the exceptional
search (issue 2), the Commissioner stated that the Service had
acknowledged deficiencies regarding the preparation of post-search
documentation and had taken action to address them.
I wrote back to the
Commissioner on January 30, 2001 reiterating our previous findings
and recommendations on the two cases. I expressed my interest in
establishing a dispute-settlement mechanism to bring closure to all
three matters.
In March 2001 we received
letters from the Assistant Commissioner Corporate Development
reiterating the Commissioner's December 28, 2000 position and
stating that it did not consider dispute-resolution an appropriate
mechanism for attempting to resolve legal issue.
In late March 2001, I met again
with the Commissioner and urged that at least one case be submitted
to dispute-settlement. I underlined the importance attributed to
such mechanisms in the Memorandum of Understanding between the CSC
and OCI. It was agreed that one issue would be selected by the
Service and then another issue would be selected by the OCI for
submission to dispute-settlement.
Status
of the cases
Our Office maintains its view
that all disputes between ourselves and the Correctional Service can
be resolved by dispute settlement procedures including, but not
limited to the examples cited in the Memorandum of
Understanding:
- Mediation, facilitation, non-binding
arbitration or other alternative dispute resolution mechanism
- Review by an expert from outside the
parties, the department, or the government
- Joint on-site investigation at the
location where the problem arose
- Formal or informal hearings
- Supplementary research
- Consultation with persons and stakeholders
We believe that disputes as to
law and legal interpretation clearly fall within the subjects that
could be referred. I am pleased that the Commissioner has agreed to
submit two cases to dispute resolution. I am confident that this
exercise will vindicate the use of the dispute resolution
process.
Pending further developments, nevertheless, I
maintain the following recommendations in these cases:
A. Use of force to effect a strip
search
That the Service acknowledge:
- that the
provisions of s.50 and 51 of the Corrections and Conditional Release Act
should have been considered before a decision was taken to
authorize the use of force.
- that the use
of force was illegal and unreasonable in that, pursuant to s.50
and 51 there were no reasonable grounds to believe that the
inmates were carrying contraband in a body cavity.
That the Service take measures, including, but
not restricted to its proposed Task Force on Strip Searches, to
ensure that, within two months, such searches are effected in
accordance with law and policy.
B.
Exceptional strip search
That the Service acknowledge:
- that the
search was authorized unreasonably and in a manner contrary to law
and to established policy
- that the
contents of the post search report were prepared in a manner which
is contrary to law
- that the
contents of documentation surrounding the search, including the
required authorization and reports, were produced in a manner that
was contrary to established policy and unreasonable.
That the Service take measures to ensure that,
within two months, all such searches be authorized and documented in
accordance with law and policy, to be confirmed by a compliance
audits of all institutions effected within one year.
Meeting the
Needs of Disabled Offenders
ISSUE
1: Inadequacy of preparation to provide disabled offenders with an
appropriate release plan
ISSUE
2: Inadequacy of facilities to meet the needs of disabled
offenders
ISSUE
3: Access of Correctional Investigator to information considered in
Canadian Human Rights Commission proceedings
This matter, initially reviewed
in last year's Annual Report, arose from our investigation of the
complaints of two disabled inmates. We found that the Service did
not procure accessible accommodation for the inmates until after
they were entitled to be released to the community.
We wrote to the Service on
these cases and on the broader issue of the Service's failure to
provide accessible accommodation despite being aware of the problem
for several years.
The Service replied to our
representations in early January 2001, indicating that CSC was
currently deficient with respect to accessibility but would meet its
requirements by end of March 2001. Unfortunately the precise nature
of these commitments was unclear, so we wrote for clarification on
January 30, 2001, and received a response on March 8, 2001.
In essence, the response was
that:
CSC had one institution
accessible in each Region for each Security level and provisions of
accessibility in mental health facilities. Unfortunately there was
no guarantee that more than one institution per Region would be
accessible at each security level.
We find that this could create
problems for inmates:
-
who, for security reasons, are
not able to integrate populations at the accessible institutions
or
-
who would have better access to
community support or to programmes if they were placed in the
non-accessible institutions
As well, not all Regions had
more than one accessible Community Residential Facility [ residences
administered by non-governmental agencies under contract with
CSC].
On the two specific cases the
Service continued to decline dealing with us pending completion of a
review by the Canadian Human Rights Commission on the same subject.
The Service felt that the confidentiality of the CHRC process
precluded discussion with our Office.
Status
of the case
The Service's standard for what
is meant by "accessible" remains unclear. In the course of recent
discussions with staff from the Older Offenders Division we were
provided with descriptions that seem to clarify what is necessary in
this regard.
Under "Accommodation Planning",
the Division's draft report recommends the implementation of
"accessibility" and "specialized areas".
In the former category the Report
sets the goal:
That there be sufficient CSC
facilities of all types, in each region, that are fully accessible
and equipped to provide the necessary living aids for offenders with
disabilities and age-related impairments or ailments at the
institutional and community level, according to the size of the
population.
"Specialized Areas" is defined
as
…a fully
accessible unit/range/house staffed and resourced to meet the
special needs (physical, mental, psycho-social, emotional and
spiritual) of an aging population and those with conditions that
prohibit them to adequately function independently in a regular
correctional setting (institutional and community).
We endorse these descriptions
and I recommend that the Service create
accessible environments, as described in the Report of the Older
Offenders Division, in CSC premises before the end of
2001.
I
further recommend that the Service take measures to ensure that
accessible facilities are available in a sufficient number of
Community Residential Facilities to meet needs within the same
period.
As to numbers of accessible
units, we find that providing only one accessible institution per
region at each security level is inadequate. This will not meet
special needs of inmates who may be unable to integrate the
population of the specified institutions or who would otherwise not
meet the criteria required under s. 28 of the CCRA if placed in such
an institution.
I
recommend that, by the end of 2002, all institutions be rendered
accessible to the extent necessary to permit all inmates with
disabilities to be placed in institutions in accordance with the
criteria for placement of the CCRA and the needs of the offenders
concerned.
Finally, we continue to
disagree with the Service's decision not to address our concerns on
the two specific cases in view of the matter being before the
Canadian Human Rights Commission. We are convinced that, if
necessary, through consultation with the Service and the Commission,
we could identify items whose consideration might be deferred while
still permitting us to exercise our mandate.
That being said, we find that
we have the statutory authority to compel the Service to provide us
with information on the issue and that nothing precludes the Service
from discussing the matter with us.
I
recommend that the Service respond at an early juncture to our
inquiries in the matters that are currently before the Canadian
Human Rights Commission.
Housing of
Minors in Penitentiaries
ISSUE
1: The inappropriateness of placing Young Offenders in
penitentiaries in association with adult offenders
ISSUE
2: The role of CSC representatives at Court hearings considering
placement of Young Offenders in federal custody
As of our last Annual Report we
had expressed our view to the Service that minors should never be
admitted to penitentiaries in association with adult offenders. We
urged that CSC staff who appeared at hearings to decide whether to
house young offenders in penitentiary should express this view in a
proactive fashion. Pending needed changes to legislation to conform
to international law prohibiting co-confinement of adults and
children, we urged the Service to put into place programs and
processes aimed at meeting the needs of young offenders.
We received a reply from the
Commissioner to our reporting letter on May 16, 2000. Unsatisfied
with the response, we indicated that we intended to raise the matter
with the Solicitor General on June 16, 2000.
With the appointment of a new
Commissioner in September, I decided to re-visit the matter with her
and did so on October 18, 2000, reiterating the concerns that we had
expressed to her predecessor.
The Commissioner responded on
December 28, 2000, indicating that CSC
The Commissioner invited us to
contact the Justice Department, through the Solicitor General, with
our suggestions on the issue.
I wrote to the Solicitor
General January 30, 2001, recommending that young offenders never be
housed in federal institutions with adult offenders unless the
adults were family members.
The Minister responded March
20, 2001, indicating that the government will only use
penitentiaries for the most serious cases, where all other
alternatives have been exhausted. He indicated that Bill C-7 [Youth Criminal Justice Act] addresses many
of our concerns.
In April we received
information on the Service's information package for CSC staff
appearing at young offender hearings. This package has three flaws,
in our view:
- The document instructs CSC representatives
to provide only information and not opinions. The Act, on the
contrary, requires the Court to consider CSC recommendations. This we interpret as
creating a positive duty to provide opinions - findings and
recommendations based on the facts
- The document retains a weak approach on
whether CSC considers it unacceptable to place youth in
penitentiaries - the Services does not encourage this but respects
the right of the Courts to require it
- The document vacillates on options
available for young offenders in penitentiaries, indicating
concern but nothing definite on programming or placement.
A very recent concern has been
the newly introduced CSC policy of requiring inmates convicted of
First or Second Degree Murder to spend at least two years in maximum
security. This could result in severe consequences for young
offenders who are required to serve time on federal custody under
the current or the proposed legislation. I wrote to the Commissioner
on this matter on April 9, 2001, recommending that the policy be
immediately rescinded.
Status
of the Case
In our view, Bill C-7 does not
address our concerns. In fact, it could permit custody of a greater
number of young offenders, at a younger age than under the current
legislation.
We remain convinced that it is
never appropriate to house minors in federal penitentiaries and that
the Service, to date, has done very little to address the needs of
young offenders within its walls.
I
recommend that the Service and the Solicitor General urge amendments
to young offender legislation that would prohibit their placement in
penitentiaries in association with adults.
Pending the above amendments I recommend that
the Service create housing, programming and case management policy
and procedures to meet the specific needs of young offenders who are
placed in penitentiaries.
I
recommend that, when appearing in Court for a determination of
whether young offenders should be placed in a penitentiary, Service
representatives:
- make it clear
that the position of the Service is that placement in
- penitentiary
is never appropriate
- underline the
lack of specific housing or programming currently
- available for
young offenders
- make
recommendations to the Court with respect to the above in
- proactive
fashion rather than respond only to direct questions.
Access to
Traditional Aboriginal Healers (Policy Inertia)
ISSUE:
Implementing measures to provide access to traditional healers for
aboriginal inmates
In our last annual Report we
sought a clear policy from the Service which would make health
service staff more aware of the role of Traditional Aboriginal
Healers and facilitate inmate access to Healers. At the time of our
last Annual Report the Service had indicated that its project in
this matter had been delayed and completion was expected in the
spring of 2001.
Early in the new fiscal year,
we made further inquiries on progress with this project.
On October 16, 2000, the
Service responded that the time frames had been adjusted in order to
provide a process that would meet the cultural perspectives and
expectations of native representatives.
On January 2, 2000, we asked
for a meeting with CSC to review the issue.
On February 16, 2001, the
Service responded that a meeting between Service representatives and
Healers would take place in early March 2001, to which our
Aboriginal specialist had been invited. It stated further that "we
may, indeed, meet to discuss this issue".
On May 25, 2001, the Service
indicated that they were developing an action plan to implement
directions given by Elders and Healers who participated in the March
meeting and that concrete steps will now be taken to meet the
objectives of providing inmates access to medicines and Healers.
Considering the delays that
have already taken place in this matter, I recommend that the CSC action plan for
providing access to Aboriginal Healers be completed and the measures
implemented by October 1, 2001.
Works In Progress
Issues Currently under Consultation between the
Correctional Investigator and the Correctional Service
This year I have decided to
provide information on subjects that we have been discussing at some
length with the Service. While these discussions are not yet
complete, we believe we should comment on them for a number of
reasons.
-
They are topics of great
importance to offenders
-
They illustrate how we interact
with the Service in policy development and in working groups that
target generic problems
-
Definite trends have been
identified and it is helpful for us to clarify our views on the
progress that has been made and on our expectations.
I emphasize that our purpose is
not to provide conclusive findings or recommendations. I simply wish
to describe and to acknowledge the work being done and to provide a
fair indication of what might become findings and recommendations in
future Reports.
a)
Administrative Segregation
It has been almost six years
since Madame Justice Arbour recommended major adjustments to the
administrative segregation system - in particular heightened
compliance with law and independent review of segregation
placements. It has been more than four years since the Task Force on
Administrative Segregation produced its report and the Service
instituted major reforms to internal policies and practices.
These changes were intended to
improve procedural compliance with law and policy and, more
important, to improve the effectiveness of the administrative
segregation review system - in other words to minimize the number
and duration of placements by maximizing reintegration options and
alternatives to segregation.
On one issue, the Service
declined the Task force's recommendation - pilot projects involving
independent review of administrative segregation.
In the past 18 months we have
noticed "slippage" on many of the procedural rules that the Service
put into place. Moreover, we have found that progress has been
singularly lacking on many fundamental "effectiveness" objectives -
significant reduction in admission and duration of segregation
placements.
Finally, the problem of
double-occupation in segregation has remained.
In May 2000 the House of
Commons Sub-Committee reviewing the CCRA recommended that
independent review be adopted. In October the Government responded
by calling for enhanced internal review with external
membership.
To her credit, the new
Commissioner of Corrections recognized the problems that we have
identified, above, and appointed Mr. Jim Laplante to coordinate
solutions.
To date there had been
significant movement on some fronts.
- The Service expects to have eliminated
double occupancy in segregation by September 2001
- A pilot program involving the
participation of a person from the community in 30-day segregation
reviews, geared toward improving effectiveness of the segregation
process is to be in operation in the fall and completed by March
2001
- Within the Pilot Project the role of
Regional Segregation Oversight Managers in promoting effective
review and reintegration will be reviewed
- Mr. Laplante and Health and Legal Services
are reviewing the status of "isolation" of inmate patients in a
mental health care context and how this should be related to
segregation under the CCRA
- The status of institutional units that are
intended as alternatives to traditional segregation will be
examined
I am hopeful that these
initiatives will result in:
-
a reduction in unnecessary
segregation ("quasi-segregation") placements and in minimizing
their duration, through fair review
-
more humane conditions of
confinement for segregated inmates
While our Office continues to
hold the view that only a completely independent review by an
outside expert will fully address these purposes, I look forward to
reviewing the success of the Service's initiatives.
b) Confidential
Medical Information
A troublesome problem for many
years has been the competing objectives of confidentiality in the
health services relationship and providing necessary information for
risk assessment purposes.
In the context of infectious
diseases, for example, the guarantee of confidentiality about a
patient's condition is considered by many experts to be essential to
promoting treatment and sound disease-prevention practices (see, for
example, the Report of the Expert Committee on Aids Prevention,
199-). On the other hand there may be circumstances where the safety
of others persons, including staff, could be endangered if the
existence of disease were not disclosed.
In the mental health context,
the need to promote candor among participants in programs may be at
odds with the Service's obligation to provide release
decision-makers with information bearing upon potential risk to
public safety.
The Service has established a
working group and a consultation process in order to clarify rules
to govern these issues in a way that will balance the competing
interests.
It is expected that this policy
will be adopted in the coming fiscal year. To date the Service has
consulted broadly with staff and community experts on the subject.
My own staff has been actively involved.
Our position is that any such
policy should emphasize treatment and disease prevention as valid
risk reduction measures. The objective must be to attain these
objectives in a way that will ensure public safety and effective
reintegration of offenders to the community. As well, as much as
possible, offenders should be able to provide informed consent
before disclosing personal health information and should be
consulted before disclosure to persons outside the health services
sector occurs.
I hope that the Service is
sympathetic to these objectives and will succeed in issuing this
long-needed policy before my next Report.
c) Older
Offenders
Currently older offenders
represent 16% of the overall federal population, a figure that is
expected to increase rapidly. The Service defines older offenders as
those 50 years old and over because
"…research
indicates that the aging process is precipitated by approximately ten
years in the correctional system due to factors including
socio-economic status, access to medical care and the lifestyle of
most offenders"
In early 2000, the Commissioner
put into place an Older Offenders Division with a mandate to develop
a strategy to deal with the needs of older offenders. This spring
the Division completed its report, which addressed a broad range of
issues, including:
- Institutional accommodation planning
- Community Corrections (supervision and
programs on release)
- Health Care and Mental Health (including
palliative care)
- Staffing (professional and volunteer) and
training to address older offender needs
- Targeted and adapted programs
- Employment, education, vocational needs
and recreational and leisure activities
- Assessment, case management and release
planning
- Public Outreach
We consider the Report a
landmark document which, if its recommendations are implemented,
will go far in addressing the problems of this group. The
recommendations are too numerous to describe adequately in this
Report. I will emphasize, however, that an essential feature of the
document is that the Service should adopt a global perspective on
the whole spectrum of older offender needs - not only health care
but all of the problems that affect our aging Canadian
population.
d) Infectious
Diseases
The Service's Health Service
Division has embarked on a process to improve the treatment and
prevention of diseases, many of which are transmitted in substance
abuse contexts. This is a welcome and long-anticipated development.
It has been eight years since the Expert Committee on Aids produced
recommendations that are still relevant to what has truly become a
crisis.
My staff, along with many
community stakeholders, has actively participated in this
initiative.
Among the topics being
discussed are:
- The early implementation of a Phase II to
the Service's methadone program, which would provide access to
suitable patients who had not participated in such programs before
admission to the federal prison system
- The opportunity for offenders to obtain
clean needles
- Opportunity for offenders to purchase
professionally-applied, clean tattoos
- Specialized initiatives for federally
sentenced women and aboriginal offenders
- Peer education programs
The Service is to be commended
for attempting to resolve these long-standing problems. Some of the
solutions are controversial, it is true, but the alternatives, given
the current escalation of the problem, are simply unacceptable. We
can no longer afford the luxury of seeing drug abuse simply as a
matter of security, rather than treatment.
We will continue to offer our
complete support to this process.
Conclusion
Progress has been made this
year on a number of Issues. I am encouraged by the Commissioner's
commitment and personal approach to dealing with offender concerns
brought to her attention by this Office. This having been said the
response of the Service, at levels below the Commissioner's Office
continue in far too many instances, to be excessively delayed,
overly defensive and absent of commitment to specific timely
corrective action.
I am hopeful that by providing
specific recommendations on the Issues that the process of excessive
review, consultation and endless study can be replaced with actions
that address in a measurable way the identified areas of offender
concern. I look forward to the Commissioner's response.
Summary of
Recommendations
Special Handling Unit
I
recommend that the Service's current examination of the
Special Handling Unit policy focus
on:
-
the
effectiveness of the SHU in meeting its current stated objective;
-
the
level of program participation and the relevance of current
programming to the identified needs of the SHU population;
-
the
resource requirements necessary to meet the programming needs of
the existing population;
-
the
appropriateness of involving Citizen Advisory Committee members in
the review process;
-
the
fairness, openness and accountability of the decision-making
process, inclusive of a clearly defined avenue of timely redress;
and
- the
development of a monthly independent review process for offenders
housed in segregation awaiting transfer to the SHU for assessment.
I
further recommend that the results of the examination be published
and that policy addressing the above areas be issued by October 2,
2001.
Inmate
Pay
I
again recommend that the Service initiate:
-
an
immediate across the board increase in inmate pay levels,
inclusive of indexing provisions; and
-
a
review of the adequacy of the funds currently available to
offenders on their release to the community.
I
recommend that the Service provide an immediate subsidy to the
inmate population to bring the cost of telephone communications in
line with community standards.
Inmate Grievance Procedure
I
recommend that:
- the Service
initiate action immediately to clear up the backlog of outstanding
grievances;
- policy
direction be issued to ensure, on a quarterly basis, a thorough
analysis of grievance data is undertaken by the Health Care,
Aboriginal and Women Offender sectors;
- the rejection
of Madame Justice Arbour's recommendations concerning senior
management accountability and external review within the grievance
process be revisited;
- the current
review undertaken by the Aboriginal Issues Branch when finalized
be provided to all inmate aboriginal organizations; and
- a review,
independent of the Women Offender's sector, be initiated to
determine how effectively inmate complaints are being managed in
institutions housing women offenders, with specific focus on the
women housed in male penitentiaries.
I
recommend that the above actions be finalized by October 31,
2001.
I
recommend that the Service's Audit Report due June 2001 on the
grievance system be provided to all Inmate Committees for their
comments.
Case Preparation and Access to
Programming
I
recommend that the Service initiate immediately a review of program
access and timely conditional release focused on:
- current
program capacity, the extent of waiting lists and specific
measures required to address deficiencies.
- the specific
reasons for waivers and postponements and the actions required to
reduce the number of waivers and postponements
- the reasons
for the decline in unescorted temporary absence and work release
programming and the specific measures required to increase
participation in this programming
- the reasons
for the disadvantaged position of Aboriginal Offenders in terms of
timely conditional release and a specific plan of action to
address this disadvantage.
I
further recommend that this review, inclusive of detailed action
plans, be finalized by November 15, 2001.
Transfers
I
recommend with respect to the transfer process that the
Service:
- immediately
initiate an audit of its transfer data to determine its current
validity and what actions need to be taken to ensure its future
accuracy;
- develop a
framework for the assessment of the transfer process to
specifically address the previously noted areas of concern by
September 20, 2001; and
- finalize its
assessment of the process by December 20, 2001, inclusive of the
development of specific action plans
I
further recommend that this Office be kept advised of the Service's
progress on this Issue.
Preventive Security Guidelines
I
recommend that in conjunction with the issuing of the Preventive
Security Guidelines the Service initiate a training program to
ensure that the responsibilities and accountabilities detailed in
the Guidelines are clearly understood.
Use
of Force
I
recommend, following the Service's Executive Committee review of the
Use of Force Report in June 2001, that an Action Plan be developed
focused on:
- mandatory
training requirements for both those who authorize the use of
force and those involved in using force;
- reducing the
number of instances of non-compliance with policy;
- limiting the
number of incidents resulting in the use of force; and
- ensuring that
thorough, timely, written reviews are undertaken by Health Care
and Women Offender sectors.
I
recommend that this Action Plan include measurable target levels
with respect to the number of incidents, the number and type of
policy violations and the establishment specific time frames in
terms of meeting training requirements. This Action Plan should be
finalized by the end of November 2001.
Inmate Injuries and Investigations
a)
Institutional Violence
I
recommend that the Service take immediate steps to fulfill their
previous commitments to the monitoring of institutional violence
through:
- the
implementation of an information system capable of capturing
accurate and reflective data;
- the production
on a quarterly basis of analytic reports; and
- the review of
these reports, as a standing item, at the Executive Committee.
I
recommend that Institutional Violence become a standing item at the
Service's Executive Committee commencing in September
2001.
b)
Inmate Injuries
I
recommend that the Service implement a national policy on the
Reporting, Recording and Review of Offender Injuries to
ensure:
- the timely and
accurate recording of injuries and the circumstances leading to
those injuries;
- the quarterly
analysis of the information collected on offender injuries; and
- the review by
the Service's Executive Committee of the quarterly reports on
offender injuries.
I
recommend that the Service's policy on the Reporting Recording and
Review of Offender Injuries be issued by October 30,
2001.
c)
Suicides
I
recommend that the Service immediately implement national policy on
the Prevention and Management of Suicides and
Self-Injury.
I
recommend that the Service immediately initiate a review of the
staff training needs associated with the implementation of this
policy and provide the necessary resources to meet those
needs.
I
recommend that all incidents of attempted suicide and self-injury be
investigated and that a psychologist, independent of the
institution, be a member of the investigative team.
I
recommend that the investigations of suicide, attempted suicides and
self injury be reviewed nationally on a quarterly basis and that the
results of these reviews be a standing agenda item for the Service's
Executive Committee.
d)
Investigations
I
recommend that the specific time frames for the completion of
Investigative Reports and the Verification of Action Plans be
incorporated into the Service's policy on
Investigations.
I
recommend that the results of the Service's monitoring of the
Investigative Process be reported on a quarterly basis and reviewed
by the Executive Committee.
I
recommend that all investigative reports into inmate death or
serious bodily injury be provided to this Office no later than 45
working days after the incident.
I
recommend, with respect to serious bodily injury and investigations
convened pursuant to Section 19 of Corrections and Conditional Release Act,
that Service take immediate steps to ensure that:
- a reasonable
definition of "serious bodily injury" and guidelines on the
interpretation of that definition are provided to the field;
- the
determination on the seriousness of the injury is made by a
licensed health care professional;
- all S.19
investigations include a health care professional independent of
the institution where the incident occurred;
- a tracking
system is in place at the national level for all investigations of
incidents resulting in death and serious bodily injury (S.19
investigations);
- all S.19
investigations are reviewed nationally with a summary report on
the recommendations and corrective actions produced quarterly; and
- quarterly
reports on S.19 investigations are provided to the Commissioner.
I
recommend, to further emphasize my position on these matters that
the following be standing agenda items at all Senior Management
meetings:
- offender
suicides and attempted suicides;
- offender death
and serious bodily injury;
- institutional
violence; and
- investigations
and systemic reviews of incidents resulting in injuries, death and
institutional violence.
Sharing of Information with Police on Release of
an Offender
I
recommend that, at its earliest possible convenience, CSC implement
its policy that, before taking any decision to disclose information
pursuant to ss.25 (3) of the CCRA the Service:
- identify to
the offender concerned the information to be disclosed and
- provide the
offender with a reasonable opportunity to make representations on
the appropriateness of disclosing any of the information.
Allegations of Staff Misconduct
I
recommend that the Service fashion a separate and well-publicized
policy for investigation of inmate complaints of staff misconduct
that will include the elements that we suggested in September 1999,
including, at least:
- early
recording by the complainant of relevant information
- timely
referral of the complainant to Health Services in applicable cases
- isolation of
the complainant from the accused staff member during the
investigation
- provision of
complete information to police at an early juncture
- a timely
decision by the Institutional Head on whether to convene an
investigation
- community
representation on investigation panels
- copying of all
documentation to our Office
Involuntary Transfer and Consent to Mental
Health Interventions
I
recommend that the Service:
- rescind its
policy of involuntarily transferring inmates to psychiatric
hospitals under the guise of "risk assessment"
- clarify that
all procedures involving significant, and more than transient,
treatment, assessment, observation or evaluation by physicians or
health care professionals is to be considered treatment for the
purposes of s.88 of the Corrections and
Conditional Release Act, and is thus subject to the informed
consent of the inmate involved
- ensure staff
compliance with the provisions of the CCRA and applicable
Provincial health services legislation in all matters governing
the admission and treatment of inmates in psychiatric
institutions.
Critical Incident Stress Intervention for
Inmates
I
recommend that national direction be issued immediately
which;
- ensures that
critical incident stress management services are mandatoraly
offered to offenders and
- provides a
clear detailing of the specific services to be available, who is
to provide these services and when they are to be provided.
Mental Health Services for Female
Offenders
I
recommend that the Service immediately initiates an Audit of the
mental health programming provided to Women Offenders and that the
Audit Team:
- include mental
health professionals from outside the Service;
- focus on the
standards for the certification and training of mental health
professionals providing the services;
- pay specific
attention to the mental health services being provided at existing
Women's Maximum Security Units; and
- meet with
representatives from this Office during the Audit.
I
further recommend that the Audit be finalized by November 15,
2001.
Sexual
Harassment Policy
I
recommend that the Service immediately implement a policy on the
Investigation of Allegations made by an Offender of Sexual
Harassment which provides;
- that
investigations are convened by the Deputy Commissioner of Women or
if the complainant is male the Regional Deputy Commissioner;
- that a copy of
all convening orders are forwarded to this Office;
- that all
members of the Board of Investigation are trained in managing
sexual harassment complaints,
- that at least
one Board member is from outside the Correctional Service and that
all Board members are independent of the facility where the
complaint was filed;
- that
complainants are consulted both during the investigation and prior
to finalizing the report in order to provide additional
information and comment which will be recorded as part of the
final report;
- that a copy of
all finalized reports are provided to both complainants and this
Office in a timely fashion; and
- that
responsive follow-up action by the convening authority is
initiated in a timely fashion.
Classification of Offenders Serving Life
Sentences
I
recommend that the policy of adjusting the Custody Rating Scale to
ensure that offenders serving life sentences for first- and
second-degree murder are placed in maximum security penitentiaries
for at least two years be immediately rescinded.
Women Offenders
I
recommend in addition to an independent Audit of Mental Health
Services, that an immediate review be initiated of the Women's Units
in Male Penitentiaries, focused on:
- resource
levels and staff training requirements to ensure the existence of
a safe, secure and humane living and working environment; and
- the provision
of programming, cultural and recreational activities consistent
with those available within the regional facilities.
I
recommend that the Service develop an Action Plan with specific
performance measurements and time frames to address:
- the full
implementation of the Service's 1997 Mental Health Strategy for
Women;
- the
verification and implementation of the security classification
tools for women and aboriginal offenders;
- finalizing
their review of factors predictive of suicidal and self-injury;
- the provision
of a minimum security environment for women consistent with the
least restrictive principle of the legislation;
- the high
number of visible minority women incarcerated in Federal
institutions; and
- the continuing
disadvantaged position of Aboriginal Women Offenders in terms of
timely conditional release.
I
recommend that this Action Plan be finalized and presented to the
Service's Senior Management Committee by November 2001.
I
recommend that the Service re-visit its rejection of Madame Justice
Arbor's recommendation that, the "women's facilities be grouped
under a reporting structure independent of the Region, with the
Wardens reporting directly to the Deputy Commissioner for
Women".
I
recommend that the Deputy Commissioner for Women be staffed on a
full time basis.
Aboriginal Offenders
I
recommend that the Service monitor on an on-going basis the impact
of their decisions on the Aboriginal Offender population, focusing
on:
- Segregation
- Transfers
- Discipline
- Temporary
Absence/Work Release
- Waivers,
Postponements and Adjournments of Parole Reviews
- Detention
Referrals
- Suspensions
and Revocations of Conditional Release
I
recommend that the results of this monitoring be reported on a
quarterly basis and reviewed by the Service's Executive
Committee.
I
recommend, given the gravity of this issue and the continuing
disadvantaged position of Aboriginal Offenders, that:
- a Senior
Manager, specifically responsible and accountable for Aboriginal
Programming and liaison with Aboriginal communities, be appointed
as a permanent voting member of existing senior management
committees at the institutional, regional and national levels; and
- the Service's
existing policies and procedures be immediately reviewed to ensure
that discriminatory barriers to reintegration are identified and
addressed. This review should be independent of the Correctional
Service of Canada and should be undertaken with the full support
and involvement of Aboriginal organizations.
Recommendations on Case Summaries
Cases on Strip Searches
A. Use of force to effect a strip
search
That
the Service acknowledge:
-
that
the provisions of s.50 and 51 of the Corrections and Conditional Release Act
should have been considered before a decision was taken to
authorize the use of force.
-
That
the use of force was illegal and unreasonable in that, pursuant to
s.50 and 51 there were no reasonable grounds to believe that the
inmates were carrying contraband in a body cavity
That the Service take measures, including, but
not restricted to its proposed Task Force on Strip Searches, to
ensure that, within two months, such searches are effected in
accordance with law and policy
B.
Exceptional strip search
That the Service acknowledge:
- that the
search was authorized unreasonably and in a manner contrary to law
and to established policy that the contents of the post search
report were prepared in a manner which is contrary to law
- That the
contents of documentation surrounding the search, including the
required authorization and reports, were produced in a manner that
was contrary to established policy and unreasonable.
- That the
Service take measures to ensure that, within two months, all such
searches be authorized and documented in accordance with law and
policy, to be confirmed by a compliance audits of all institutions
effected within one year.
Meeting the Needs of Disabled
Offenders
I
recommend that the Service create accessible environments, as
described in the Report of the Older Offenders Division, in CSC
premises before the end of 2001.
I
further recommend that the Service take measures to ensure that
accessible facilities are available in a sufficient number of
Community Residential Facilities to meet needs within the same
period.
I
recommend that, by the end of 2002, all institutions be rendered
accessible to the extent necessary to permit all inmates with
disabilities to be placed in institutions in accordance with the
criteria for placement of the CCRA and the needs of the offenders
concerned.
I
recommend that the Service respond at an early juncture to our
inquiries in the matters that are currently before the Canadian
Human Rights Commission.
Housing of Minors in Penitentiaries
I
recommend that the Service and the Solicitor General urge amendments
to young offender legislation that would prohibit their placement in
penitentiaries in association with adults.
Pending the above amendments I recommend that
the Service create housing, programming and case management policy
and procedures to meet the specific needs of young offenders who are
placed in penitentiaries
I
recommend that, when appearing in Court for a determination of
whether young offenders should be placed in a penitentiary, Service
representatives:
- make it clear
that the position of the Service is that placement in penitentiary
is never appropriate
- underline the
lack of specific housing or programming currently available for
young offenders
- make
recommendations to the Court with respect to the above in a
proactive fashion rather than respond only to direct questions.
Access to Traditional Aboriginal Healers (Policy
Inertia)
I
recommend that the CSC action plan for providing access to
aboriginal healers be completed and the measures implemented by
October 1, 2001.
STATISTICS
TABLE A CONTACTS (1) BY CATEGORY
|
CASE TYPE |
CATEGORY |
I/R (2) |
INV (3) |
TOTAL |
Administrative
Segregation |
|
|
|
Conditions Placement/Review Total |
42 145 187 |
57 175 232 |
99 320 419 |
Case Preparation |
|
|
|
Conditional Release Post Suspension Temporary Absence Transfer Total |
169 31 49 176 425 |
123 13 49 141 326 |
292 44 98 317 751 |
Cell Effects |
186 |
168 |
354 |
Cell Placement |
62 |
43 |
105 |
Claims Against the
Crown |
|
|
|
Decisions Processing Total |
28 52 80 |
32 35 67 |
60 87 147 |
Community Programs/Supervision |
10 |
8 |
18 |
Conditions of Confinement |
132 |
149 |
281 |
Correspondence |
58 |
40 |
98 |
Death or Serious
Injury Decisions (General) -
Implementation |
4 26 |
2 9 |
6 35 |
Diet |
|
|
|
Medica Religious Total |
16 13 29 |
21 18 39 |
37 31 68 |
Discipline |
|
|
|
ICP Decisions Minor
Court Decisions Procedures Total |
30 25 36 91 |
15 14 31 60 |
45 39 67 151 |
Discrimination |
39 |
13 |
52 |
Employment |
91 |
71 |
162 |
File Information |
|
|
|
Access - Disclosure Correction Total |
121 183 304 |
69 52 121 |
190 235 425 |
Financial Matters |
|
|
|
Access Pay Total |
27 124 151 |
39 39 78 |
66 163 229 |
Food Services |
18 |
27 |
45 |
Grievance
Procedure |
157 |
194 |
351 |
Health Care |
|
|
|
Access Decisions Total |
225 167 392 |
421 149 570 |
646 316 962 |
Mental Health |
|
|
|
Access Programs Total |
10 8 18 |
18 5 23 |
28 13 41 |
Official Languages |
11 |
4 |
15 |
Operation/Decisions of the OCI |
28 |
19 |
47 |
Other |
59 |
15 |
74 |
Penitentiary Placement |
111 |
84 |
195 |
Programs |
|
|
|
Access Quality/Content Total |
117 58 175 |
123 39 162 |
240 97 337 |
Release Procedures |
33 |
44 |
77 |
Safety/Security of
Offender(s) |
124 |
86 |
210 |
Search and Seizure Security Classification |
21 105 |
22 71 |
43 176 |
Sentence Administration--
Calculation |
41 |
36 |
77 |
Staff
Responsiveness |
280 |
141 |
421 |
Telephone |
83 |
90 |
173 |
Temporary Absence
Decision |
79 |
88 |
167 |
Transfer |
|
|
|
Decision—Denials Implementation Involuntary Total |
143 61 206 410 |
104 79 142 325 |
247 140 348 735 |
Urinalysis |
28 |
22 |
50 |
Use of Force |
14 |
26 |
40 |
Visits |
|
|
|
General Private Family Visits Total |
167 109 276 |
184 112 296 |
351 221 572 |
Outside Terms of Reference |
|
|
|
|
Conviction/Sentence—Current Offence |
17 |
- |
17 |
|
Immigration/Deportation |
11 |
- |
11 |
|
Legal Counsel--
Quality |
6 |
- |
6 |
|
Outside Court--
Access |
20 |
- |
20 |
|
Parole Decisions |
199 |
- |
199 |
|
Police Actions |
17 |
- |
17 |
|
Provincial Matter |
16 |
- |
16 |
|
GRAND
TOTAL |
4630 |
3775 |
8405 | (1)See
Glossary (2) I/R: Immediate Response - see
Glossary (3) INV: Investigation - see
Glossary
GLOSSARY
Contact: |
Any transaction regarding an issue between
the OCI and an offender or a party acting on behalf of an
offender. Contacts may be made by telephone, facsimile,
letter, and during interviews held by the OCI's investigative
staff at federal correctional facilities. |
Immediate
Response: |
A
contact where the information or assistance sought by the
offender can generally be provided immediately by the OCI's
investigative staff. |
Investigation: |
A
contact where an inquiry is made to the Correctional Service
and/or documentation is reviewed/analyzed by the OCI's
investigative staff before the information or assistance
sought by the offender is provided.
Investigations vary considerably in terms
of their scope, complexity, duration and resources required.
While some issues may be addressed relatively quickly, others
require a comprehensive review of documentation, numerous
interviews and extensive correspondence with the various
levels of management at the Correctional Service of Canada
prior to being finalized. |
TABLE B CONTACTS BY
INSTITUTION
Region/Institution |
# of
contacts |
# of
interviews |
# of days spent in
institution |
Women's
Facilities |
|
|
|
Edmonton Women's
Facility |
39 |
19 |
3 |
Regional Reception Centre
(Québec) |
22 |
9 |
4 |
Grand Valley |
168 |
90 |
10 |
Isabel McNeill
House |
6 |
0 |
0 |
Joliette |
156 |
67 |
8 |
Okimaw Ohci Healing
Lodge |
18 |
11 |
2 |
Nova |
86 |
33 |
4 |
Prison for Women |
1 |
0 |
0 |
Regional Psychiatric
Centre (Prairies) |
28 |
14 |
3 |
Saskatchewan Penitentiary |
44 |
18 |
3 |
Springhill |
64 |
19 |
4 |
Total |
632 |
280 |
41 |
ATLANTIC |
|
|
|
Atlantic |
276 |
122 |
11 |
Dorchester |
323 |
130 |
13 |
Springhill |
136 |
58 |
9 |
Westmorland |
47 |
24 |
5 |
Region Total |
782 |
334 |
38 |
ONTARIO |
|
|
|
Bath |
140 |
42 |
5 |
Beaver Creek |
76 |
25 |
3 |
Collins Bay |
120 |
30 |
3 |
Fenbrook |
399 |
145 |
18 |
Frontenac |
49 |
36 |
4 |
Joyceville |
362 |
100 |
11 |
Kingston
Penitentiary |
581 |
234 |
21 |
Millhaven |
209 |
38 |
6 |
Pittsburgh |
43 |
10 |
2 |
Regional Treatment
Centre |
35 |
18 |
3 |
Warkworth |
323 |
131 |
13 |
Region Total |
2337 |
809 |
89 |
PACIFIC |
|
|
|
Elbow Lake |
19 |
12 |
3 |
Ferndale |
29 |
12 |
2 |
Kent |
177 |
42 |
4 |
Matsqui |
66 |
14 |
2 |
Mission |
91 |
24 |
2 |
Mountain |
129 |
46 |
3 |
Regional Health
Centre |
106 |
44 |
3 |
William Head |
68 |
35 |
6 |
Region Total |
685 |
229 |
25 |
PRAIRIE |
|
|
|
Bowden |
286 |
97 |
18 |
Drumheller |
202 |
80 |
17 |
Edmonton |
330 |
110 |
12 |
Grande Cache |
188 |
82 |
10 |
Pê Sâkâstêw Centre |
9 |
4 |
4 |
Regional Psychiatric
Centre |
125 |
69 |
5 |
Riverbend |
34 |
12 |
3 |
Rockwood |
21 |
7 |
3 |
Saskatchewan
Penitentiary |
323 |
92 |
10 |
Stony Mountain |
277 |
102 |
12 |
Region Total |
1795 |
655 |
96 |
QUEBEC |
|
|
|
Archambault |
176 |
46 |
5 |
Cowansville |
214 |
101 |
8 |
Donnacona |
152 |
93 |
8 |
Drummondville |
170 |
61 |
9 |
Federal Training
Centre |
138 |
78 |
6 |
La Macaza |
189 |
147 |
13 |
Leclerc |
298 |
108 |
10 |
Montée St-François |
84 |
33 |
4 |
Port Cartier |
282 |
98 |
11 |
Regional Reception
Centre/SHU Québec |
280 |
81 |
9 |
Ste-Anne des
Plaines |
81 |
32 |
3 |
Region Total |
2064 |
878 |
86 |
GRAND TOTAL |
8295* |
3185 |
375 |
*Excludes 64 contacts in CCC's
and CRC's and 46 contacts in provincial institutions
TABLE C COMPLAINTS AND
INMATE POPULATION - BY REGION
Region |
Total number of
contacts (*) |
Inmate Population
(**) |
Maritimes |
782 |
1154 |
Québec |
2064 |
3361 |
Ontario |
2337 |
3290 |
Prairies |
1795 |
3118 |
Pacific |
685 |
1813 |
TOTAL |
7663 |
12736 |
Excludes 742 contacts from
CCC/CRC's, provincial institution and FSW facilities.
As of 13 March 2001, according
to April, 2001 Performance Measurement Report issued by the
Correctional Service of Canada.
TABLE D DISPOSITION OF CONTACTS BY
CASE TYPE
CASE TYPE |
DISPOSITION |
# OF COMPLAINTS |
Immediate Response |
Information given ………… |
2383 |
|
Outside mandate ………… |
286 |
|
Pending ………………… |
59 |
|
Premature ………………… |
867 |
|
Referral …………………… |
791 |
|
Withdrawn ………………… |
244 |
|
Total |
4630 |
Investigation |
Assistance given ………… |
1020 |
|
Information given ………… |
976 |
|
Pending…………………… |
276 |
|
Premature ………………… |
206 |
|
Referral …………………… |
455 |
|
Not justified ……………… |
383 |
|
Resolved ………………… |
312 |
|
Unable to Resolve ……… |
66 |
|
Withdrawn ……………… |
81 |
|
Total |
3775 |
GRAND TOTAL |
|
8405 |
********** |