Charter Statement - Bill C-56: An Act to amend the Corrections and Conditional Release Act and the Abolition of Early Parole Act

Tabled in the House of Commons, June 21, 2017

Explanatory Note

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

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

A Charter Statement is intended to provide legal information to the public and Parliament. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-56, An Act to amend the Corrections and Conditional Release Act and the Abolition of Early Parole Act, for consistency with the Charter pursuant to her obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.

What follows is a non-exhaustive discussion of the ways in which Bill C-56 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.

Administrative Segregation

The placement of inmates in federal penitentiaries in administrative segregation engages Charter-protected rights to liberty and potentially to security of the person and to equal treatment without discrimination based on personal characteristics such as race, ethnic origin or mental or physical disability. Bill C-56 proposes to establish a new presumptive timeline for the release of any inmate placed in administrative segregation and to enhance accountability and oversight in respect of such placements.

Specifically, clause 4 (new subsections 35.1(1) - 35.5(6)) introduces measures to enhance the accountability and transparency of the administrative segregation regime in the Corrections and Conditional Release Act. Subsection 35.1(1) would provide that an inmate must be released before the end of the 21st day of confinement, unless the “institutional head”, meaning the person who is normally in charge of the penitentiary, orders continued administrative segregation. Eighteen months after the coming into force of the legislation, this presumptive time limit is reduced to 15 days. If the inmate is not released before the end of the presumptive time limit, their case would be reviewed by an independent external reviewer appointed by the Minister of Public Safety and Emergency Preparedness (subsection 35.2(1)). An independent external review would also be triggered when an inmate is placed in administrative segregation (i) on at least three separate occasions in a single calendar year or (ii) for a cumulative total of at least 90 days in administrative segregation in a single calendar year. An independent review would also take place where an inmate has reached those 90 days by the fourth working day of confinement. A “working day” is a day on which offices of the federal public administration are generally open in the province in question.

The independent external reviewer would provide the institutional head with a written recommendation, supported by reasons, as to whether or not the inmate should be released from administrative segregation. If, upon receiving the written recommendation, the institutional head did not release the inmate, they would have to meet with the inmate to explain the reasons for their decision and provide those in writing (section 35.4). Subsection 35.2(2) contemplates further regular reviews by the independent external reviewer where an inmate is held in administrative segregation beyond the presumptive time limit. Section 35.5 contemplates an additional level of review by a person or persons designated by the official at a regional headquarters (Atlantic, Quebec, Ontario, Prairie and Pacific) who is responsible for all regional penitentiary and parole office operations (“regional head”). The Bill also provides for a comprehensive parliamentary review of the legislative and regulatory reforms to the administrative segregation regime, to be conducted five years after those take effect. The reviewing committee must submit a report, including any recommended changes, to Parliament.

Section 7 of the Charter guarantees to everyone the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Because administrative segregation imposes additional constraints and conditions on inmates, it potentially engages residual liberty interests as well as physical and mental security interests protected by section 7, and so must respect the principles of fundamental justice. These principles include that a law must not be arbitrary, overbroad, or grossly disproportionate. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that impacts section 7 rights in a way that, while generally rational, goes too far by capturing some conduct that bears no relation to the law’s purpose. A grossly disproportionate law is one whose effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose.

Section 12 of the Charter provides that everyone has the right not to be subjected to any cruel and unusual treatment or punishment. Canadian courts have found that administrative segregation is not per se cruel and unusual, but have cautioned that it may become so in circumstances where its effects are “so excessive as to outrage standards of decency”.

Section 15 of the Charter protects equality rights. It provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, including on the basis of mental or physical disability. Administrative segregation may potentially engage the equality rights of persons with mental illness to the extent their illness intensifies the effects of segregation or is exacerbated as a result of segregation.

The following considerations support the consistency of the reformed administrative segregation regime with the Charter. They are based on both the existing regime and the additional safeguards introduced by Bill C-56.

The existing regime has a number of important safeguards, including: (i) subsection 31(2), requiring that the inmate be released from administrative segregation “at the earliest appropriate time”; (ii) subsection 87(a) requiring consideration of an inmate’s state of health and health care needs in all decisions relating to administrative segregation; and (iii) section 69 prohibiting cruel, inhumane or degrading treatment or punishment of an offender.

Bill C-56 would introduce a number of additional safeguards, while continuing to protect the safety of other inmates and penitentiary staff, namely:

  • A presumption of release by a specified day of confinement: this presumptive, rather than mandatory, cap on the duration of administrative segregation reflects a recognition of the need to minimize the significant impacts that segregation can have on inmates, while still accommodating the volatility of the prison context and the need for flexibility in responding to the serious safety and security risks that arise in penitentiaries.
  • The addition of an independent external review process: this process further enhances accountability in decision-making for placements exceeding the presumptive cap and for inmates subject to multiple or lengthy placements in a single calendar year. However, the ultimate decision-making authority would continue to reside with the institutional head who has the requisite expertise and direct knowledge of the inmates implicated and the institutional setting. The independent external reviewer would conduct further regular reviews at the prescribed time and in the prescribed manner following the presumptive time limit, thereby enhancing transparency and accountability in circumstances where safety and security risks continue to militate against release.
  • Provides that the head of the appropriate regional office of Correctional Service of Canada shall, in the circumstances prescribed by regulation, order that an inmate is to be released from, or remain in administrative segregation.

Oral Hearing to Follow Suspension, Termination or Revocation of Parole or Statutory Release

With a view to enhancing procedural fairness in parole and statutory release hearings, clause 8 amends paragraph 140(1)(d) of the Corrections and Conditional Release Act to reintroduce the requirement that the Parole Board of Canada hold oral hearings following a suspension, termination or revocation of parole or statutory release. This requirement was discontinued in the Jobs, Growth, and Long-Term Prosperity Act (2012), although that legislation left in place subsection 140(2) of the Corrections and Conditional Release Act, giving the Parole Board of Canada discretion to hold an oral hearing in appropriate cases.

Because the suspension, termination or revocation of parole or statutory release has the potential to deprive offenders of their section 7 liberty interests, any procedure governing such decisions must respect the principles of fundamental justice, which may include a right to be heard in circumstances where credibility is at issue. Bill C-56 proposes to amend paragraph 140(1)(d), to ensure oral hearings for these types of review. The 2012 amendments that had repealed the requirement for an oral hearing were found to violate section 7 of the Charter by the Quebec Court of Appeal. The Attorney General of Canada discontinued an appeal before the Supreme Court of Canada further to a Government commitment to amend paragraph 140(1)(d).

The Quebec Court of Appeal’s ruling resulted in oral hearings being required in the province of Quebec following a suspension, termination or revocation of parole or statutory release. Amending paragraph 140(1)(d) of the Corrections and Conditional Release Act to reintroduce the requirement of an oral hearing in such circumstances in all jurisdictions would ensure uniformity across the country.

Accelerated Parole Review Process

Bill C-56 would also address Charter concerns regarding previous changes to the parole regime that have been found inconsistent with the Charter’s guarantees that anyone convicted of an offence should not be punished twice for the same offence and should have the benefit of the lesser punishment if it is changed between time the offence is committed and the time of sentencing. Accelerated parole review was a streamlined process provided in the Corrections and Conditional Release Act to facilitate the parole of first-time, non-violent offenders. It was discontinued by the Abolition of Early Parole Act, which came into force on March 28, 2011. The transitional provisions of the Abolition of Early Parole Act applied the repeal retrospectively to all offenders who had not yet been directed for release under accelerated parole review, including those who were sentenced or who had committed their offence before the Accelerated Early Parole Act came into force.

Clause 9 amends subsection 10(1) of the Abolition of Early Parole Act to provide that the accelerated parole review process afforded under former sections 125 to 126.1 of the Corrections and Conditional Release Act continues to apply to offenders in respect of an offence committed before the day on which the Abolition of Early Parole Act came into force. Accelerated parole review would apply to such offenders regardless of whether the offence continued after the Abolition of Early Parole Act came into force; whether sentencing, committal or transfer occurred on or after that day; or whether the offender committed another offence after that day.

Section 11(h) of the Charter provides that any person charged with an offence has the right, if finally acquitted of the offence, not to be tried for it again and, if they are finally found guilty and punished for the offence, not to be tried or punished for it again. Section 11(h) has been found to include protection against retrospective changes to the conditions of the original criminal sanction where those changes add to the offender’s punishment. In Canada v. Whaling (2014), the Supreme Court of Canada ruled that applying the repeal of accelerated parole review to those already serving sentences added to their punishment and violated section 11(h). This judgment invalidated the application of subsection 10(1) of the Abolition of Early Parole Act to persons already serving sentences when the Abolition of Early Parole Act came into force. Clause 9 responds to that ruling, bringing the statutory text into conformity with the requirements of section 11(h) of the Charter.

Section 11(i) of the Charter provides that any person charged with an offence has the right, if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. Section 10(1) of the Abolition of Early Parole Act potentially engages section 11(i) in applying the repeal of accelerated parole review to persons who committed offences before the date that the Abolition of Early Parole Act came into force, but were convicted and sentenced on or after that date. It would do so by potentially increasing the punishment applicable at the time of offence. Appellate courts in a number of provinces have ruled that subsection 10(1) violates section 11(i), invaliding the application of that subsection to such offenders in those jurisdictions. Clause 9 also would bring the statutory text into conformity with these court rulings, ensuring consistency with section 11(i) in all jurisdictions. Charter conformity is further promoted by providing access to accelerated parole review in the circumstance of a pre- Abolition of Early Parole Act offence that continued on or after the date of that Act’s coming into force, or where the offender commits another offence on or after that date.

Date modified: