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Bill S-230

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First Session, Forty-fourth Parliament,
70 Elizabeth II, 2021
SENATE OF CANADA
BILL S-230
An Act to amend the Corrections and Conditional Release Act
FIRST READING, December 2, 2021
THE HONOURABLE SENATOR Pate
4412116


SUMMARY

This enactment amends the Corrections and Conditional Release Act to, among other things,
(a)require that, if a person who is sentenced, transferred or committed to a penitentiary has disabling mental health issues, they will be transferred to a hospital;
(b)ensure that a person may only be confined in a structured intervention unit for longer than 48 hours on an order of a superior court;
(c)allow for the provision of correctional services and plans for release and reintegration into the community to persons from disadvantaged or minority populations by community groups and other similar support services; and
(d)allow for persons who are sentenced to a period of incarceration or parole ineligibility to apply to the court that imposed that sentence for a reduction if there has been unfairness in the administration of their sentence.
Available on the Senate of Canada website at the following address:
www.sencanada.ca/en


1st Session, 44th Parliament,
70 Elizabeth II, 2021
SENATE OF CANADA
BILL S-230
An Act to amend the Corrections and Conditional Release Act

Preamble

Whereas meaningful and effective remedies and oversight are crucial to ensuring respect for the rule of law and human rights;
Whereas, in contrast to other branches of Canada’s criminal legal system, decisions made by the Correctional Service of Canada that impact human rights are not routinely subject to judicial oversight;
Whereas the Structured Intervention Unit Implementation Advisory Panel and the Office of the Correctional Investigator have documented persistent conditions of segregation in federal penitentiaries;
Whereas conditions of isolation and segregation have the potential to create and exacerbate risks to the well-being of persons, including in contravention of prohibitions on cruel and unusual treatment and punishment under section 12 of the Canadian Charter of Rights and Freedoms;
Whereas persons kept in conditions of isolation and segregation can experience irreversible physical, psychological and neurological harm after as few as 48 hours;
Whereas those most marginalized, including Black and Indigenous peoples, members of the 2SLGBTQQIA+ community and those with disabling mental health issues, have been overrepresented in segregation, structured intervention units and other conditions of prisoner isolation;
Whereas international human rights standards and domestic inquiries, investigations and inquests prohibit segregation, at a minimum, of persons with mental and physical disabilities, young people, many women and those with disabling mental health issues;
Whereas the Truth and Reconciliation Commission of Canada’s commitments require elimination of the overrepresentation of Indigenous peoples in federal penitentiaries as a means of redressing ongoing colonial harms;
Whereas the use of least restrictive measures and the consideration of alternatives to continued institutionalization are fundamental principles of Canada’s corrections;
And whereas segregation, structured intervention units and other forms of isolation are among the most costly and least effective ways of responding to individuals in need of social, cultural and health supports;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Alternative Title

Alternative title
1This Act may be cited as the Providing Alternatives to Isolation and Ensuring Oversight and Remedies in the Correctional System Act (Tona’s Law).
1992, c. 20

Corrections and Conditional Release Act

2Subsection 2(1) of the Corrections and Conditional Release Act is amended by adding the following in alphabetical order:
structured intervention unit means
(a)any area of a penitentiary where a person is separated from the mainstream population and is required to spend less time outside their cell or engaging in activities than is a person in the mainstream population; or
(b)a penitentiary or any area in a penitentiary that is designated under section 31.
3Subsection 15.‍1(2.‍01) of the Act is replaced by the following:
Mental health assessment
(2.‍01)In order to ensure that the plan can be developed in a manner that takes into consideration any mental health needs of the person who is sentenced, transferred or committed to a penitentiary, the institutional head must, as soon as practicable after the day on which the person is received but not later than the 30th day after that day, refer the person for a mental health assessment.
If no medical professional available
(2.‍02)If a mental health assessment required under subsection (2.‍01) cannot be performed by a medical professional engaged by the Service who is qualified to do so, the institutional head must authorize the transfer of the person referred to in that subsection to a hospital, including any mental health facility, in accordance with an agreement entered into under paragraph 16(1)‍(a) and any applicable regulations, for the purposes of a mental health assessment.
4The Act is amended by adding the following after section 29.‍01:
Transfers to hospital
29.‍02If a mental health assessment or an assessment by a registered health care professional concludes that a person who is sentenced, transferred or committed to a penitentiary has disabling mental health issues, the Commissioner must authorize that person’s transfer to a hospital, including any mental health facility, in accordance with an agreement entered into under paragraph 16(1)‍(a) and any applicable regulations.
5Section 33 of the Act is replaced by the following:
Duration
33(1)Any confinement in a structured intervention unit is to end as soon as possible.
Duration
(2)A person’s confinement may not have a duration of more than 48 hours unless authorized by a superior court under subsection (3).
Extended duration
(3)On application by the Service, a superior court may extend the duration of a person’s confinement in a structured intervention unit beyond 48 hours if, in the court’s opinion, the extension is necessary for a purpose described in subsection 32(1).
6(1)Paragraph 37.‍1(2)‍(a) of the Act is replaced by the following:
(a)a referral of the person transferred into a structured intervention unit, within 24 hours after their transfer, for a mental health assessment; and
(2)Section 37.‍1 of the Act is amended by adding the following after subsection (2):
If no medical professional available
(3)If a mental health assessment required under paragraph (2)‍(a) cannot be performed by a medical professional engaged by the Service who is qualified to do so, the institutional head must authorize the transfer of the person referred to in that paragraph to a hospital, including any mental health facility, in accordance with an agreement entered into under paragraph 16(1)‍(a) and any applicable regulations, for the purposes of a mental health assessment.
7The heading before section 79 of the Act is replaced by the following:
Indigenous and Marginalized Populations
8Section 79 of the Act is amended by adding the following in alphabetical order:
disadvantaged or minority population includes any population that is or has been the subject of direct or indirect discrimination on the basis of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, or disability. (population défavorisée ou en situation minoritaire)
9Section 81 of the Act is replaced by the following:
Agreements
81(1)The Minister or a person authorized by the Minister may, for the purposes of providing correctional services, enter into an agreement with
(a)an Indigenous organization;
(b)an Indigenous governing body;
(c)a community group or organization that serves a disadvantaged or minority population; or
(d)any other entity that provides community-based support services.
Agreement re cost
(2)An agreement under subsection (1) may provide for payment by the Minister or a person authorized by the Minister in respect of the provision of those services.
Transfer of care and custody
(3)In accordance with any agreement entered into under subsection (1), the Commissioner may transfer a person who is committed to a penitentiary to the care and custody of an entity described in that subsection with the consent of that person and the entity.
Transfer of care and custody
(4)The Commissioner must take all reasonable steps to
(a)identify entities described in subsection (1) for the purpose of entering into agreements; and
(b)seek to transfer a person who is committed to a penitentiary to an entity with which such an agreement exists.
Transfer of care and custody
(5)The Commissioner must not deny the transfer of a person committed to a penitentiary to an entity with which an agreement exists if the person and the entity consent unless the transfer is, as determined by a court of competent jurisdiction, not to be in the interests of justice.
10Section 84 of the Act is replaced by the following:
Release into community
84(1)If a person committed to a penitentiary requests the support, on being released, of an entity referred to in subsection (2), the Service must provide that entity with an opportunity to propose a plan for the person’s release and integration into the community in which the person is to be released.
Relevant entities
(2)The following are relevant entities for the purposes of subsection (1):
(a)the community’s Indigenous governing body, if applicable;
(b)an Indigenous organization that is active in the community;
(c)a community group or organization that serves a disadvantaged or minority population; or
(d)any other entity that provides community-based support services.
Obligation
(3)The Service must
(a)take all reasonable measures to inform persons committed to a penitentiary about the entities described in subsection (2) that may be relevant to them; and
(b)give every entity that has proposed a plan for the release and integration of a person under subsection (1) adequate notice of that person’s parole review or their statutory release date, as the case may be.
Written reasons
(4)If the Parole Board of Canada makes any decision that is inconsistent with a plan proposed by an entity for the release and integration of a person under subsection (1), it must provide written reasons for its decision.
11The Act is amended by adding the following after section 198:
PART III.‍1
Unfairness in the Administration of a Sentence
Reduction of sentence
198.‍1(1)A person sentenced to a period of incarceration or parole ineligibility may apply to the court that imposed the sentence for an order reducing that period as the court considers appropriate and just in the circumstances if, in the court’s opinion, a decision, recommendation, act or omission of the Commissioner or any person under the control and management of — or performing services for or on behalf of — the Commissioner that affected the person was
(a)contrary to law or an established policy;
(b)unreasonable, unjust, oppressive or improperly discriminatory;
(c)in accordance with a rule of law or a provision of any Act or a practice or policy that is or may be unreasonable, unjust, oppressive or improperly discriminatory;
(d)based wholly or partly on a mistake of law or fact; or
(e)an exercise of a discretionary power
(i)for an improper purpose,
(ii)on irrelevant grounds,
(iii)on the taking into account of irrelevant considerations, or
(iv)without reasons having been given.
Application for reduction of sentence
(2)An application under subsection (1) must be made
(a)no later than 60 days after the later of the day on which
(i)the decision, recommendation, act or omission occurred,
(ii)the Service provided to the person who is sentenced to a period of incarceration or parole ineligibility a report or other document related to the decision, recommendation, act or omission, and
(iii)the person was informed of
(A)a decision by the Correctional Investigator under section 175,
(B)a conclusion by the Correctional Investigator under section 176, or
(C)an opinion indicated by the Correctional Investigator under section 178,
in relation to the decision, recommendation, act or omission; or
(b)within any other period of time that the court may establish, at its discretion and at any time, if that period is longer than the period referred to in paragraph (a).
Published under authority of the Senate of Canada



explanatory notes

Corrections and Conditional Release Act
Clause 2:New.
Clause 3:Existing text of subsection 15.‍1(2.‍01):
(2.‍01)In order to ensure that the plan can be developed in a manner that takes any mental health needs of the offender into consideration, the institutional head shall, as soon as practicable after the day on which the offender is received but not later than the 30th day after that day, refer the offender’s case to the portion of the Service that administers health care for the purpose of conducting a mental health assessment of the offender.
Clause 4:New.
Clause 5:Existing text of section 33:
33An inmate’s confinement in a structured intervention unit is to end as soon as possible.
Clause 6: (1)Existing text of paragraph 37.‍1(2)‍(a) :
(2)The Service shall ensure that the measures include
(a)a referral of the inmate’s case, within 24 hours after the inmate’s transfer into the structured intervention unit, to the portion of the Service that administers health care for the purpose of conducting a mental health assessment of the inmate; and
(2)New.
Clause 7:Existing text of the heading:
Indigenous Offenders
Clause 8:New.
Clause 9:Existing text of section 81:
81(1)The Minister, or a person authorized by the Minister, may enter into an agreement with an Indigenous governing body or any Indigenous organization for the provision of correctional services to Indigenous offenders and for payment by the Minister, or by a person authorized by the Minister, in respect of the provision of those services.
(2)Notwithstanding subsection (1), an agreement entered into under that subsection may provide for the provision of correctional services to a non-Indigenous offender.
(3)In accordance with any agreement entered into under subsection (1), the Commissioner may transfer an offender to the care and custody of an appropriate Indigenous authority, with the consent of the offender and of the appropriate Indigenous authority.
Clause 10:Existing text of section 84:
84If an inmate expresses an interest in being released into an Indigenous community, the Service shall, with the inmate’s consent, give the community’s Indigenous governing body
(a)adequate notice of the inmate’s parole review or their statutory release date, as the case may be; and
(b)an opportunity to propose a plan for the inmate’s release and integration into that community.
Clause 11:New.

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