Canada Gazette, Part I, Volume 157, Number 18: Regulations Amending the Corrections and Conditional Release Regulations

May 6, 2023

Statutory authority
Corrections and Conditional Release Act

Sponsoring department and agency
Department of Public Safety and Emergency Preparedness
Correctional Service of Canada

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: The Corrections and Conditional Release Act (CCRA) was amended in 2019 to authorize the Correctional Service of Canada (CSC) to use body scanner technology to prevent the entry of contraband into federal correctional institutions. Amendments to the Corrections and Conditional Release Regulations (CCRR) are required to operationalize those legislative amendments and implement body scanners in federal institutions. A framework surrounding the corresponding use of dry cell detention as a key tool for the seizure of contraband was also identified for addition into the CCRR to further advance the humane treatment of those in custody, while continuing to support the security and safety of individuals in the institution.

Description: The proposed amendments to the CCRR would enable the CSC to implement body scanner technology through prescribing the type, manner and circumstance of their use. In addition, a regulatory framework would be introduced regarding the use of dry cell detention, specifying admission criteria, duration limits, and oversight, while also ensuring the consideration of health care needs.

Rationale: The introduction of body scanner technology to the CSC’s available search tools provides the department with an efficient method to detect contraband that is located on the individual’s body or inside a person’s digestive tract or body cavity, depending on the body scanner device used. The use of body scan search technology is also considerate of inmate, staff and visitor gender considerations and of individuals with a history of abuse or trauma, and may address any issues related to gender/religious/cultural needs. Body scanners will also support the new structure and oversight for dry cell use, which is projected to reduce the time spent in dry cells. Additionally, the proposed amendments would institute additional procedures to monitor the health of an inmate in a dry cell, and increase transparency through the introduction of procedures surrounding dry cell data.

Issues

In 2019, An Act to amend the Corrections and Conditional Release Act and another Act (hereafter referred to as former Bill C-83) created a skeleton framework for the use of body scan search technology to be used to prevent the introduction of illegal substances into federal correctional institutions.

The legislative framework relies on the development and implementation of regulations, via amendments to the CCRR, that would define the type of body scanner(s) to be used, the manner in which the body scanner(s) will be used, and the circumstances under which a body scan can be conducted. The proposed regulatory provisions create the necessary framework before the legislative amendments related to body scanners can be brought into force and body scanners can begin to be implemented in federal institutions.

In addition, the proposed regulatory provisions introduce changes to dry cell detention. A dry cell is a cell without conventional plumbing fixtures that allows for close monitoring of the individual, for their safety and the safety of the Institution as a whole, while awaiting the expulsion of contraband. Senators as well as stakeholders have raised concerns regarding the CSC’s use of dry cells, specifically regarding the criteria for admission to a dry cell, the duration a person may spend in a dry cell, and the need for specific consideration of health (in particular mental health) of the impacted person. The proposed regulatory amendments would improve the humane treatment of those in custody who may be subject to the use of dry cells, as discussed during the Senate’s review of Budget Implementation Act, 2022, No. 1 in spring 2022.

The proposed regulatory amendments would also enhance safeguards surrounding the dry cell regime, including through the use of body scan searches as part of the dry cell decision-making process, while supporting their continued use as a necessary measure for institutional safety and security in circumstances where there is a real risk of the introduction of contraband.

Background

Current CSC searches

Currently, the CSC has various tools and resources to search inmates, staff and visitors, including

These search methods are used to detect and identify potential contraband entering federal institutions, and are conducted in circumstances where there is a possibility that an inmate could have acquired and concealed contraband. Contraband includes a variety of items, including alcohol, drugs, weapons, explosives, unauthorized amounts of currency, or any item that could jeopardize the security of a penitentiary or the safety of persons. Examples of circumstances that could lead to contraband entering federal institutions include, but are not restricted to, leaving or entering an institution, leaving or entering a work or program area in the institution and leaving or entering the visiting area of the institution. Although these methods are very effective in detecting contraband on a person, they do not address the risk associated to individuals attempting to introduce contraband hidden inside a person.

Body scan searches

In an effort to address ongoing concerns and criticisms regarding federal corrections and implement progressive measures, the Government of Canada introduced former Bill C-83 on October 16, 2018. Among other changes, this bill allowed the CSC to use additional search tools to support both the safe searching of inmates and the CSC’s seizure of contraband — seeking to reduce the presence of contraband into CSC facilities.

Following the passing of former Bill C-83 in 2019, the CSC initiated discussions with provincial and international correctional authorities who use body scanning technology to begin developing its approach on prescribing their use, based on best practices. Additionally, in the summer of 2022, the CSC began a pilot program to test body scanners in federal institutions, to fully assess their operating requirements and benefits. Two low-dose X-ray body scanners were procured and installed at Bath Institution, in Ontario, and Edmonton Institution for Women, respectively, to evaluate the efficacy of searching via body scanners, and to build on the consultation knowledge base to support their effective implementation in the federal setting. In these pilots, the use of the body scanners as an alternative means of searching inmates is on a voluntary basis.

Dry cell regime

Following a search that finds contraband or creates reasonable grounds that contraband is concealed on the person, the CSC begins the process to seize the contraband to address risks to the individual or the dangerous introduction of contraband into the institution. While voluntary surrender of contraband is preferential following a search, alternative measures must be available to facilitate seizure where voluntary surrender is not obtained. In such cases, CSC staff refer to a risk-based, person-centred intervention model to articulate expectations, impacts and consequences of involvement in the introduction of contraband. Once all discussions and verbal strategies are exhausted, the CSC will consider using the dry cell as a means to seize the contraband to keep the institution safe.

As outlined in section 51 of the CCRA, where an IH is satisfied that there are reasonable grounds to believe that an inmate has ingested contraband or is carrying contraband in their rectum, they may authorize that the inmate be detained in a dry cell to facilitate seizure of the contraband. Once an inmate is detained in a dry cell, a staff member is assigned to supervise the inmate 24/7 while they are in the cell, until they produce the contraband or the decision is made to release the inmate. In the current practice, the inmate is released from the dry cell for three reasons: the inmate is displaying health concerns that warrant their release from the dry cell, the reasonable grounds under which the inmate was detained in a dry cell have dissipated, or the contraband has been seized. This practice, although crucial to ensure the security and safety of individuals in the institution, has received criticism for its lack of oversight, structure, and the conditions of confinement.

Former Bill C-83 amended section 51 of the CCRA regarding search procedures when the IH has reasonable grounds to believe that an inmate has ingested or is concealing contraband in a body cavity, with dry cell detention facilitating seizure. A new subsection, subsection 51(2), was added to the CCRA to provide that the inmate shall be visited by a registered health care professional at least once a day. The bill also removed the option of using X-rays, leaving only the possibility of confining the inmate in a dry cell in the expectation that the contraband will be expelled. The use of medical X-rays for contraband detection had historically posed challenges for the CSC, as many physicians would not consent to this practice based on the fact that it was being used for reasons other than medically related diagnostic imaging, even with full consent from the inmate that would be subject to the X-ray. Though most changes from former Bill C-83 are in force, the change regarding the use of medical X-rays and amendments to support the use of body scanners would come into force on a date fixed by the Governor in Council. This is expected to align with the coming into force of the proposed regulations. In addition, the subsection requiring the inmate be visited by a registered health care professional did not come into force on royal assent, but an equivalent amendment was made in 2022, as discussed below.

On November 12, 2021, the Supreme Court of Nova Scotia held, in Adams v. Nova Institution, 2021 NSSC 313, that then paragraph 51(b) of the CCRA, which referred to carrying contraband in any body cavity, violated section 15 of the Canadian Charter of Rights and Freedoms (the Charter), as it discriminated against inmates who are believed to be carrying contraband in their vagina. As contraband in the vagina is not expelled in the same manner or at the same pace as contraband in the digestive tract, this leads to the potential for inmates with vaginas to be subject to a longer dry cell detention, well beyond the duration faced by inmates who may have ingested contraband or concealed it in their rectum.

Accordingly, the Court found this use of dry cells to be unconstitutional, declaring paragraph 51(b) to be of no force and effect in Nova Scotia unless Parliament amended the legislation to address the issue. The Court provided a six-month timeline for these changes to be made. Following a requested extension to refine the details of the policy, Budget Implementation Act, 2022, No. 1 amended the CCRA to address the concerns in Adams v. Nova Institution and eliminate the detention in dry cells of inmates suspected of carrying contraband in their vaginas. In addition, Budget Implementation Act, 2022, No. 1 amended the CCRA, introducing subsection 51(2), which requires that any inmate in a dry cell be visited at least once per day by a registered health care professional. While this provision was also included in former Bill C-83, it was expedited to ensure more robust medical oversight in the interim instead of waiting until the same change in former Bill C-83 was ready to come into force. These amendments, which came into force June 23, 2022, ensure that the use of dry cells is compliant with the Charter, while preserving dry cells as an important tool to support institutional security.

During the 2022 budgetary process, concerns regarding the dry cell regime were discussed by the Senate Committee on National Security and Defence (SECD) while examining the above-referenced Budget Implementation Act, 2022, No. 1 amendments to the dry cell practice. Specifically, Senate consideration of the use of dry cells raised concerns regarding criteria for admission to a dry cell, the duration that an individual may spend in a dry cell, and the need for specific consideration of health (in particular mental health) of the impacted individual. As a result of these concerns, the Minister committed to issuing a ministerial direction to the CSC regarding the use of dry cells intended to ensure that the CSC uses the least restrictive measures consistent with the protection of society, staff members, and offenders. To that end, the Ministerial Direction, published on August 29, 2022, introduced principles that solidified the CSC’s internal practices regarding the care and oversight of those detained in dry cells. The Direction includes the expectation that the CSC would specify the circumstances under which dry cells would be used, establish duration guidelines, prioritize least restrictive measures, and pursue the ongoing improvement of search and seizure activities. In addition, the Direction reaffirmed procedural safeguards already in place, including daily reviews at regular intervals where dry cell detention surpasses 48 hours.

Supported by the forthcoming implementation of body scan technology, the Minister of Public Safety also made a commitment to enact regulatory amendments to the CCRR in order to enhance oversight and create a transparent framework surrounding dry cell detention. Together, the search and seizure improvements offered by body scan technology and regulatory dry cell constraints seek to strike an improved balance between humane custody and the safety and security of the institution.

Objective

The proposed regulatory amendments would enhance search and seizure tools used by the CSC within Canada’s federal institutions. Specifically, they would allow for the implementation of body scanner technologies, as authorized by former Bill C-83, by detailing the types of body scanners to be used, the manner in which they would be used and the circumstances in which the CSC would have the authority to use them. Adding this technology to the tools already used by the CSC would further support detection of contraband and unauthorized items, increasing the safety and security of institutions, including inmates, staff, visitors and the community.

The introduction of a regulatory framework regarding the use of dry cells would support their continued use as a necessary seizure tool, while ensuring that dry cells would only be used in narrow and justifiable circumstances — supported by the implementation of body scan technology. The framework seeks to strike a careful balance between the importance of safety and security of the individual and the institution (which calls for the management of the risk posed by contraband), and the principle that the CSC relies on the least restrictive measures possible consistent with the protection of society, staff members and offenders. The proposed regulations are intended to advance positive change for those incarcerated in federal institutions by helping to determine whether contraband is present and whether the use of dry cells are necessary, limiting the duration of dry cell detention, and enhancing the monitoring of the physical and mental health of those detained in dry cells. This new regulatory oversight would also prescribe the collection and management of dry cell–related data, expanding data availability and ensuring the regime can be monitored, analyzed, and evaluated as needed.

Description

General overview of body scan searches

The proposed regulations would allow the CSC to use body scanner technology that can reveal items such as, but not limited to, metal, plastic, organic and inorganic items concealed in clothing, on the body or inside the body of the individual being scanned. Body scan searches would support the CSC’s existing methods to conduct searches, which include strip searches, which are visual inspections of the naked body and a search of any clothing or carried items; non-intrusive searches of clothed persons using search technology, such as metal detectors; and manual frisk searches of the clothed body.

Prescribed body scanner

The proposed amendments would define a prescribed body scanner as a machine capable of detecting contraband that is in or on a clothed person, and includes one that is capable of producing detailed images of the insides of a person’s body.

Prescribed manner of a body scan search

For all body scan searches, a trained staff member would be required to carry out a body scan search of an inmate, staff member or visitor, ensuring they are in compliance with the machine’s operating requirements, and are following the guidance of Health Canada’s health and safety standards for using body scanner technology (e.g. not scanning individuals with health concerns, limiting the number of scans on an individual per year). These requirements would be set out in Commissioner’s Directives, which are rules made under the authority of the Commissioner under sections 97 and 98 of the CCRA. Updates to these Directives would be made to incorporate any new health and safety standards developed, as well as to take into account updated technology as it relates to body scanner technology. All Commissioner’s Directives must be accessible to offenders, staff members and the public.

A person would be asked to remain in the scanner device while being scanned and may be required to undergo subsequent scans if the operator is unable to satisfactorily complete the scan or where an operator believes, on reasonable grounds (following a review of the image generated by the scanner), that the individual is concealing items.

A trained staff member would carry out a body scan search in two distinct manners: a non-detailed body scan search or a detailed body scan search; these are described below.

Non-detailed body scan search

A non-detailed body scan search, which could be conducted when a frisk or non-intrusive search would otherwise be authorized, is a body scan search during which the trained staff member would review the image generated by the scanner to determine the presence of contraband. For example, a CSC staff member may conduct a frisk search and body scan search of an offender following a visit with a family member. The image produced in these instances would be a human silhouette (generated by artificial intelligence) on which an area will be highlighted if a foreign object is detected on the surface of or inside the person’s body. For example, if an inmate were to be scanned with contraband in their sleeve, the body scanner would produce an image of a silhouette whose arm is highlighted. A trained staff member of either sex would conduct these scans, as no sensitive or revealing information about the person’s body is produced in the image result.

The specific circumstances under which a non-detailed body scan search could be used are listed below.

Inmates may be subject to searches by means of a non-detailed body scan where:

Visitors may be subject to searches by means of a non-detailed body scan when the visitor is entering or leaving an institution or a secure area.

Staff may be subject to searches by means of a non-detailed body scan when entering or leaving the institution or a secure area.

Staff would have the option of using a non-detailed body scan among other search methods for all non-intrusive searches for inmates, visitors and other staff. If a visitor refuses to undergo a search, the IH or designated staff member may prohibit a contact visit with an inmate and authorize a non-contact visit, which is a visit conducted behind a glass or some other form of physical barrier separating the visitor and the inmate, where direct contact is not possible. Alternatively, the IH can deny the visit and require the visitor to leave the institution immediately.

Detailed body scan search

A detailed body scan search, which could be conducted when a strip search would otherwise be authorized or a dry cell decision is required, during which the trained staff member would review the image generated by the scanner to determine the presence of contraband. For example, CSC staff members may conduct a strip search or body scan of an inmate who was seen picking up and concealing an unknown package in the recreational yard. The image produced in these instances would be a detailed image of the insides of the person’s body (similar to the result of an X-ray scan), and the trained staff member would review the image to detect contraband. For example, if an inmate were to be scanned with contraband in their digestive system, the trained staff member would be able to identify the contraband in the detailed image generated by the scanner. The Commissioner’s Directives would specify that the trained staff member conducting a detailed body scan search must be of the same sex as the inmate (or in compliance with the inmate’s gender considerations), given the sensitivity of the additional information revealed by these scans.

The specific circumstances under which detailed body scan searches could be used are listed below.

Inmates may be subject to searches by means of a detailed body scan where

As provided in subsection 48(2) of the CCRA, a detailed body scan search shall be conducted where a routine strip search would otherwise occur during the course of the person’s incarceration. As a result, staff must conduct a detailed body scan search, if a scanner is in proper working order in the institution, under criteria (a), (b), (c) and (d) above — which refer to situations where a routine strip search would occur. However, staff would have the option of conducting a detailed body scan using a body scanner when a strip search is non-routine, as outlined in criteria (g) and (h). Criteria (e) and (f) would also require a body scan search as part of the dry cell decision-making changes, which are further described in the following section.

Visitors may be subject to searches by means of a detailed body scan when a staff member suspects on reasonable grounds that a visitor is carrying contraband and believes that a body scan search is necessary to find the contraband.

If a visitor refuses to undergo a search, the IH or designated staff member may prohibit a contact visit with an inmate and authorize a non-contact visit, which is a visit conducted behind a glass or some other form of physical barrier separating the visitor and the inmate, where direct contact is not possible. Alternatively, the IH can deny the visit and require the visitor to leave the institution immediately.

Staff may be subject to searches by means of a detailed body scan when a staff member believes on reasonable grounds that another staff member is carrying contraband and that a body scan search is necessary to find the contraband. However, in practice, the CSC typically works with law enforcement such as the Royal Canadian Mounted Police (RCMP) to deal with instances in which staff are suspected of carrying contraband.

The circumstances in which offenders, visitors and staff would be body scanned were selected as these are the most common and most vulnerable situations in which contraband and unauthorized items are introduced into the institution, and reflect the current circumstances in which other searches (e.g. strip searches, frisk searches) would be authorized. For example, inmates entering and leaving the institution, whether under constant supervision by staff or not, represent opportunities for inmates to transport contraband as they may come into contact with other persons, places or things. It should be noted that body scanners do not eliminate the need for strip searches or dry cells.

Dry cell detention

Where contraband has been ingested or concealed in an individual’s rectum, dry cells are a key tool available to the CSC to facilitate the seizure of that contraband, and prevent its entry into or circulation within the institution, in the event it is not voluntarily surrendered. In accordance with the CCRA, the IH may authorize an inmate’s detention in a dry cell based on reasonable grounds to believe that an inmate has ingested contraband or is carrying it in their rectum.

The proposed amendments would introduce new provisions outlining the use of dry cell detention by the CSC, including how the implementation of body scan technology would assist the IH in being satisfied that there are reasonable grounds to believe that an inmate has ingested or is carrying contraband in their rectum.

In deciding whether to authorize an inmate’s detention in a dry cell, the IH would rely on the result of a body scan search where a body scan search could be lawfully carried out (e.g. no inmate health concerns), and a body scanner is both in proper working order and in the institution. In authorizing the initial use of a dry cell, the IH would prepare written reasons outlining the facts that led the IH to form reasonable grounds to believe that the inmate has ingested contraband or is carrying it in their rectum, and the contraband is expected to be expelled. These written reasons would be provided to the inmate.

Under this proposal, the inmate’s detention in a dry cell would be required to end if the IH is no longer satisfied that there are reasonable grounds to believe that the inmate has ingested contraband or is carrying it in their rectum, or if there is no longer any expectation that the contraband will be expelled. For example, when all contraband is believed to have been seized. It would also need to end in the event that a registered health care professional recommends for health reasons that an inmate not remain in a dry cell.

The proposed amendments would set a 72-hour maximum for detention in a dry cell. However, the IH would be able to authorize a 24-hour extension of the inmate’s detention in particular circumstances. In such circumstances, as in the initial detention, the IH must be satisfied that there are reasonable grounds to believe that the inmate has ingested contraband or is carrying it in their rectum, and there is an expectation that the contraband will be expelled. Further, if there is a body scanner in proper working order in the institution and a detailed body scan can be lawfully conducted, the results of that search indicate that there are reasonable grounds to believe that the inmate has ingested contraband or is carrying it in their rectum.

To justify the authorization of detention beyond 72 hours, and in addition to needing to be satisfied that the criteria for initial detention still exist, the IH must also have reasonable grounds to believe that

When the 24-hour extension lapses, the IH may authorize one additional 24-hour extension based on an evaluation of the same factors. This means dry cell detention may reach a total of 120 hours in these circumstances.

If the IH authorizes an extension on dry cell detention beyond the initial 72-hour detention, as described above, their written reasons must include their consideration of the additional factors (i.e. avoiding expulsion, bowel movements, and/or re-ingestion or re-concealment).

While an inmate is placed in a dry cell, the proposed regulations would require that the CSC ensure that their physical and mental health is monitored on an ongoing basis. If a staff member or person engaged by the CSC believes that the dry cell is having detrimental impacts on the inmate’s health, the inmate’s case would be referred to the CSC’s health care administration. In particular, detrimental impact could present as self-injury, signs of a drug overdose, or other signs of emotional distress.

Body scan and dry cell reporting

The proposed regulations would provide for a reporting and oversight structure for both body scanner searches and dry cell detention. A post-search report must be prepared when a body scan is conducted when a strip search would otherwise be authorized, as already occurs when those other searches are conducted. However, there would be additional circumstances in which a report would be required, as it relates to dry cell decision-making. This expanded dry cell reporting structure would replace the use of standardized search reports that are currently used in the dry cell context.

The IH must immediately submit a report to a designated staff member at their regional headquarters when

The IH must immediately submit a report to a designated staff member at both their regional headquarters and at national headquarters when

Any such report prepared by the IH must include basic information about the search (such as the relevant time, date and place of the search) as required in post-search reports as prescribed in subsection 58(4) of the CCRR. The reports must also outline the factual information supporting the IH’s belief that the inmate has ingested, or is carrying, contraband — including any new facts that may have changed from one report to the next. The IH must note any relevant body scan searches that may have occurred prior to, or during, the inmate’s dry cell detention. The report must also show consideration of the inmate’s health, and confirmation that they were provided with adequate food, water, and any prescribed medications. The proposed regulations would also require the CSC to set out procedures for the collection, compilation, management and analysis of data with respect to the use of dry cells in order to identify trends. Ultimately, the data included in these reports would be used to monitor and evaluate the use of dry cells.

In addition to the proposed reporting requirements in section 58 of the CCRR, the proposed amendments would remove current subsections 58(5) and (6) of the CCRR. These provisions refer to a minimum retention period and a person’s right of access to post-search reports. The Privacy Act and its regulations already prescribe substantially the same rules as are currently in subsections 58(5) and 58(6) of the CCRR.

Regulatory development

Consultation

Body scanners

The authority for the CSC to conduct body scan searches was initially introduced in former Bill C-83. As a result, considerable consultation took place during the development and passage of that bill. For example, a stakeholder roundtable was held in May 2019, co-hosted by the CSC and PS to discuss the rationale and for former Bill C-83, its implications for federal corrections and how it would be implemented. Sixteen diverse stakeholder groups were in attendance, including formerly incarcerated persons, prisoner advocacy groups, mental health organizations, and employee unions. During this event, discussions were held regarding all elements of the bill, including the introduction of body scan searches. Prior to that, in Senate Committee discussions surrounding the bill, the notion of body scan technology was positively received, noting the benefits to men, women and gender-diverse people. There were no concerns raised during that time regarding the proposal; rather, the Senate raised concerns if the CSC did not implement body scanners. The CSC did not receive comments or changes regarding the specifics of body scanner technology to the legislative framework during this time, as the prescription of the type, manner and circumstances to use body scanners in the CCRR would be required to fully implement this technology in federal institutions. Similarly, parliamentary discussions regarding former Bill C-83 described body scan technology as progressive, more reliable, less invasive, and contributing to the safety of both staff and inmates.

The Union of Canadian Correctional Officers (UCCO) is very supportive of the introduction of body scanners to federal institutions as it believes this tool will provide safer, easier options for its members.

The CSC has reached out to the California Department of Corrections and Rehabilitation and the Nova Scotia, Ontario and British Columbia (BC) provincial correctional services, as these organizations have introduced body scanners and associated policies. These conversations provided the CSC with abundant knowledge around potential safety and security impacts, installation, use of and training on body scanners, and questions on health and privacy. Following these conversations, it was understood that provincial correctional services share very similar policies and experiences in terms of implementation and staff and offender concerns, which the CSC noted and will utilize in its introduction of body scanners federally. The daily operations of body scanners in provincial correctional facilities predominately included the routine scanning of inmates and their personal effects, which was viewed by many institutions as an extremely valuable and effective searching tool. Overall, the provincial jurisdictions that have utilized these machines for several years believe this tool provides advantages on many fronts, by improving detection of contraband, reducing the need for more manual searches, respecting the dignity and privacy of all persons, and increasing safety for those in the institution.

Additionally, Health Canada has provided advice on which standards to follow, such as the Radiation Emitting Devices Act, the Radiation Protection Regulations and internationally recognized standards groups like the American National Standards Institution, on which the CSC intends to base its policy and operations.

Dry cells

The Senate Committee on National Security and Defence (SECD) convened on May 16, 2022, to examine amendments proposed to the Corrections and Conditional Release Act by the Budget Implementation Act, 2022, No. 1. PS and CSC officials provided evidence to the Committee, as did stakeholders from the John Howard Society of Canada and the Canadian Association of Elizabeth Fry Societies, non-profit organizations who advocate for criminal justice improvements and prison reform in Canada. During that discussion, stakeholders and senators identified concerns regarding the duration of time spent in dry cell, the grounds justifying dry cell detention, the adequacy of health care services (in particular, mental health services), and the need for body scan technology. They also questioned CSC compliance with policy, as well as the adequacy of dry cell-related data being recorded and/or monitored by the CSC.

Following the SECD item, informal verbal discussions were held with the Canadian Association of Elizabeth Fry Societies (CAEFS), the John Howard Society, and the Canadian Civil Liberties Association (CCLA) (a non-profit human rights organization), and their written feedback was also welcomed. Generally, such stakeholders have largely advocated for abolition of dry cell practices as a whole, but have also expressed support for duration limits (including ending detention after 72 hours), and narrowed use to prevent prolonged and unnecessary stays through initiatives such as the prioritization of less restrictive options and the use of body scanners. Stakeholder submissions during the budgetary process also focused on the need to ensure that medical considerations form an integral part of deciding to use or continue dry cell detention. In addition, beginning in May 2022, consultations took place with both the Office of the Correctional Investigator (OCI) and Howard Sapers (Chair of the Structured Intervention Unit Implementation Advisory Panel and former Correctional Investigator) regarding dry cell changes. These additional consultations echoed Senate concerns, with a focus on shortening dry cell durations (with a preference to prohibit continuous dry cell detention beyond 72 hours), limiting the scope of their use, and addressing mental health concerns for those subject to dry cell detention.

These broad discussions and recommendations directly inspired the dry cell-related regulatory amendments being proposed, and led to a commitment letter sent by Minister Mendicino to the SECD on June 10, 2022. This letter acknowledged that “more work needs to be done to address the use of dry cells,” as indicated by stakeholders, and noted that regulatory development is underway. The letter also notes that a Ministerial Direction would be forthcoming as an interim measure.

Minister Mendicino fulfilled this commitment by issuing a Ministerial Direction to CSC Commissioner Anne Kelly on August 29, 2022, regarding the use of dry cells. The purpose of the Direction was to strengthen reporting requirements, oversight, and health care considerations to the use of dry cells to ensure that the CSC maintains safe and secure procedures surrounding dry cells, while always respecting the dignity and human rights of inmates. As published, the Direction expressly provided that the CSC would specify the circumstances under which dry cells would be used, establish duration guidelines, prioritize the least restrictive measures available, and pursue ongoing improvements to their search and seizure activities.

The OCI shared their views on the practice previously (annual reports from 2021–22, 2019–2020 and 2011–2012), in addition to recent informal consultations. Largely, these views have focused on the need to end continuous dry cell detention beyond 72 hours — a goal supported publicly by key stakeholders such as the CCLA and the CAEFS. Following these discussions, a major element of the proposed regulations has aligned with their previous recommendations (i.e. dry cell time limits based on a 72-hour period); however, the possibility of two extensions was included to address security concerns and to strike the right balance between ensuring that dry cell use is narrow in scope, while maintaining its use as an important tool in upholding institutional security.

Operational and Public Safety partners (Canada Border Services Agency [CBSA], the UCCO and provincial correctional agencies) were consulted informally on the proposed changes to the CCRR, in particular regarding the time limit associated with the use of dry cells. Given their experience and the variability in the delay for the expulsion of contraband from the digestive system, these stakeholders questioned the impact of a time limit on the efficiency of dry cells and the potential for increased contraband being introduced in federal correctional institutions. Discussions with the RCMP were also held; however, no substantive concerns or comments were made due to the differences in their equivalent practices.

Modern treaty obligations and Indigenous engagement and consultations

The CSC has determined the introduction of body scanners and amended dry cell practices would not adversely affect potential or established Indigenous treaty rights. While marginalized groups (and in particular, Indigenous populations) are over-represented at all stages of the criminal justice system, the introduction of body scanners and amended dry cell practices would be limited to correctional environments and would not disproportionately affect any one institutional population. The CSC’s policy to address the specific needs of Indigenous offenders, Commissioner’s Directive 702 — Indigenous Offenders, as well as Public Safety Canada’s diversity and cultural competency training for all staff, provide direction and competency for Indigenous considerations that cover the program changes within the proposed regulations. As a result, additional consultation with Indigenous groups specifically, is not planned, and it was determined that the existing policies regarding Indigenous-specific services and programs will not be affected. The CSC will inform national Indigenous organizations of the prepublication of this proposal and invite them to provide comments as part of the prepublication process.

Overall, the regulatory initiative is intended to promote the protection of human rights in the correctional environment.

Instrument choice

The CCRA provides the legislative authority for the CSC’s actions, and it can only operate within the legislative context and boundaries. Searches are legislated under the CCRA and consequently, legislative provisions were enacted to create the necessary authority for body scan searches. Those provisions refer to the requirement to prescribe in regulation the type of body scanner, the manner of conducting a body scan search, and the circumstances in which a staff member may conduct a body scan search.

Under the baseline scenario (i.e. no action), the CSC would remain unable to implement the use of body scan technology, thereby limiting the tools available to the CSC to detect contraband and unauthorized items. Due to the changes made through former Bill C-83, the CCRA sets out the basic framework for the use of body scan technology. That skeletal framework relies on the development and implementation of regulations, via amendments to the CCRR, that would define the type of body scanners to be used, the manner in which the body scanners would be used, and the circumstances under which a body scan can be conducted.

The introduction of a regulatory framework would serve to provide firm clarity, certainty and transparency around the use of dry cells. As proposed in these regulations, dry cell oversight would be stringent, and would include features that are particularly important due to the highly restrictive nature of dry cell detention, which was previously subject to only internal policy and has been a topic of both stakeholder criticism and litigation. In addition, the proposed regulatory process allows for careful consideration of structured public consultation in support of the final regulatory product.

Regulatory analysis

A cost-benefit analysis (CBA) was conducted to assess the incremental impacts of the proposed amendments. The present value costs of the regulatory proposals amount to $9,003,947 compared to $294,797 in monetized benefits. Estimated costs include (a) body scanner capital and warranty costs ($7.8 million); (b) maintenance costs (approximately $370,000); (c) operational and review costs (approximately $807,000); and (d) costs to develop procedures for the collection, compilation, management and analysis of data (approx. $28,000). The proposal generates no benefits in terms of reduction in injuries or fatalities due to overdoses and other incidents. It is expected there will be cost savings to the CSC due to a limit on the length of dry cell detention, and it is estimated that inmates would spend fewer hours in dry cell detention than would be the case under the baseline conditions. The estimated benefit for this cost savings has been calculated to be $294,797. It is estimated that inmates would spend 38 347 fewer hours in dry cell detention over a 10-year period than would be the case without the proposed regulations. The full CBA report is available upon request.

Analytical framework

Costs and benefits for the 10-year period between 2024 and 2033 are expressed in constant 2023 Canadian dollars and are discounted to 2024 at a discount rate of 7%. The growth of the CSC inmate population is assumed to follow the 10-year average incarceration rate per 100 000 Canadians as of 2021–22. This rate is then multiplied by the forecasted Canadian population as per Statistic Canada’s projections to calculate the prison population on which estimates of government cost savings and inmate benefits in terms of hours not spent in dry cell detention are based.

Assumptions for the analysis were based on publicly available information, CSC datasets, and subject matter expertise.

Baseline scenario

In the baseline scenario, the CSC has several authorized methods for searching persons:

Although these methods are very effective in detecting and seizing contraband on a person, they do not address the risk associated to individuals attempting to introduce contraband hidden inside them. The CSC does have the power to authorize body cavity searches or medical X-ray scans by medical professionals, but both options require inmate and medical professional consent before they can be conducted. Many physicians would not consent to this practice based on the fact that it was being used other than for medically related purposes, even with full consent from the inmate that would be scanned.

In this same scenario, where an IH is satisfied that there are reasonable grounds to believe that an inmate has ingested contraband or is carrying contraband in their rectum, they may authorize that the inmate be detained in a dry cell to facilitate seizure of the contraband. In the current practice, there are no specific time limits for a dry cell detention, rather staff rely on intelligence, number of bowel movements, or health staff recommendations to end detentions without seizures.

Once an inmate is detained in a dry cell, a staff member is assigned to supervise the inmate 24/7 while they are in the cell, until they produce the contraband, or the decision is made to release the inmate. The inmate is released from the dry cell for one of the following three reasons: the inmate is displaying health concerns that warrant their release from the dry cell, the reasonable grounds under which the inmate was detained in a dry cell cease to exist, or the contraband has been seized.

Regulatory scenario

Under the regulatory scenario, searches currently used —strip search, non-intrusive search, frisk search — would still be used by correctional institutions. The proposed regulations would allow the CSC to use body scanner technology as an additional search method, which can reveal the following, but is not limited to, metal, plastic, organic and inorganic items concealed in clothing, on the body or inside the body of the individual being scanned.

The amendments concern the CSC’s authority to conduct body scan searches as an alternative to other forms of routine and non-routine searches on inmates, staff and/or visitors. To this end, the prescribed circumstances for body scan searches are the same under which the CSC currently has the authority to conduct its searches, apart from dry cell decisions and reviews. The circumstances in which inmates, visitors and staff would be body scanned are the most common and most vulnerable situations in which contraband and unauthorized items are introduced into the institution. For example, inmates entering and leaving the institution, whether under constant supervision by staff or not, represent opportunities for inmates to introduce contraband and/or unauthorized items, as they may meet other persons, places, or things.

The proposed amendments would set a 72-hour maximum for detention in a dry cell. However, the IH would be able to authorize a 24-hour extension of the inmate’s detention in particular circumstances. In such circumstances as in the initial detention, the IH must be satisfied that there are reasonable grounds to believe that the inmate has ingested contraband or is carrying it in their rectum, and there is an expectation that the contraband will be expelled. When the 24-hour extension lapses, the IH may, under prescribed conditions, authorize one additional 24-hour extension. This means dry cell detention may reach 120 hours (5 days) in these circumstances.

Additionally, increased reporting requirements would be incorporated into the dry cell practice to ensure oversight of the decision-making from multiple levels within the department. These reports would also benefit the CSC in tracking data related to the dry cell practice, which will support the reviews and improvements to the program moving forward. The proposed regulations would also require the CSC to set out procedures for the collection, compilation, management and analysis of data with respect to the use of dry cells in order to identify trends.

Costs

Purchasing costs

Purchasing costs represent the costs associated with the purchase of the body scanners and include the equipment purchase, yearly warranty costs, as well as yearly maintenance requirements. Purchasing cost data for this regulatory amendment was informed by historical costing data obtained through the purchases made during the pilot project.

The scanner purchase price is estimated at $275,000 per unit, which covers installation costs, training requirements, and minor infrastructure retrofits. There is also an additional $15,000 per year over a five-year warranty (with no cost the first year), with maintenance requirements estimated to be 1.5% of the body scanner purchase cost per year following the warranty period, which encompasses recalibration of the machines, software updates, etc. The CSC anticipates installing 33 additional body scanners over the next five years.

Operating costs

The regulatory change would result in an increase in costs associated with using the body scanners at CSC institutions on an as-needed basis. Operating cost data for this regulatory amendment was also informed by the CSC’s pilot project. As per the results of the pilot, it is estimated that there would be an increased workload for correctional officers of 15 minutes per scan conducted as an alternative to a strip search. In addition, it has been assumed that 65% of the forecasted inmate population in a given calendar year would undergo a body scan. Where body scanners are being used for non-intrusive or frisk searches, there would be no significant difference in time spent searching compared to the existing methods used by the CSC; therefore, no additional costs are anticipated for using body scanners as an alternative search method. The growth of the CSC inmate population over the next 10 years would also increase the operating costs of the body scanners as it would result in an increase in body scan searches conducted.

Review costs

Further, additional reporting requirements have also been included in the regulatory model as they relate to dry cells. These additional requirements would include new information (e.g. body scan results, facts that led to the dry cell detention extensions) that would be added to existing post-search reporting conducted by the department. The costs to staff would be accounted for in gathering this new information (e.g. costs to body scan). The additional time to complete a longer report is expected to be negligible (i.e. under 5 minutes). Finally, the oversight structure would require that the IH consider the results of a body scan, if available, prior to authorizing any dry cell detentions. The costs for these additional review periods are expected to be minimal (i.e. 15 minutes per review). This additional component is exclusive to the regulatory model.

Costs to develop procedures for the collection, compilation, management and analysis of data

The proposed regulations require that procedures for the collection, compilation, management, and analysis of data with respect to the use of dry cells in order to identify trends in that data be put in place. Under the current baseline, following certain searches, such as non-routine strip searches, the CSC compiles a report that includes, but is not limited to, the reasons for the search, the items seized (if any), the manner in which the search was conducted, as well as the facts that led to the belief that there was a presence of contraband. The regulatory model would build on these requirements for dry cells specifically, adding elements such as the expectation of the IH that the contraband would be expelled during the dry cell placement, the results of the body scan searches (when applicable), and the inmate’s state of health and health care needs. In practice, the correctional officer would gather this additional information during the dry cell placement, whereas the IH would use this information to develop the report. As is the case with the body scan reviews, the collection and reporting of these additional data points is expected to be minimal (15 minutes for the collection of the information, 15 minutes for the reporting). This does not include the costs of preparing the procedures for the data collection and compilation, the training for staff on data collection and reporting, the cost of storing and managing the data to ensure the continued integrity of the database, and the cost of analyzing the data to discern trends. The estimated cost for this requirement is thus a lower bound.

Implementation costs

In the process of implementing the proposal, there would likely be some minor costs to ensure awareness of the new regulatory requirements, as well as education and training on them, including structured training, information sessions, documentation/reporting to various levels in the organization and audits of activities. These costs would be minimal, and the largest portion of these costs (training) is factored in the purchase cost of the body scanners.

Benefits

Reduction in fatalities and in major and minor injuries

Body scanners can detect contraband in the digestive tract and contraband that is hidden in body cavities with an increased level of certainty compared to the CSC’s current search methods. This ability is expected to increase the amount of knowledge on trafficked contraband that would otherwise enter the institution undetected. One would expect this to increase the CSC’s ability to seize contraband and, as a result, decrease minor injuries, major injuries as well as fatalities (e.g. due to overdoses).

However, no reduction in inmate injuries or fatalities can be expected under the proposed regulatory amendments. The presence of a firm cap on the duration of dry cell detention would create a strong incentive for inmates in the dry cells to hold on to the contraband inside their body cavities, as they would know exactly when they would be released from the dry cell. As a result, no incremental contraband would be seized in the regulatory scenario that combines body scanners and a new dry cell regime that caps dry cell detention time. In fact, it is entirely possible that more contraband would slip past dry cell detention. The inclusion of a time limit to this practice benefits the inmate population, as it would help mitigate the potential negative effects of a prolonged detention. However, this limit would also introduce the possibility for contraband to make it through a dry cell detention and enter the mainstream population.

Benefits to inmates from a reduction of time in dry cells

These benefits relate to the physical and mental health of inmates. They are derived from access to recreational activities allowed by correctional programming, access to personal belongings, fewer days in isolation, and increased opportunities to interact with others. They arise from the requirement in the regulation that caps the amount of time in dry cell detention. They are calculated as the difference between the total amount of time spent in dry cell detention in the baseline scenario and the expected amount of time that would be spent in dry cell detention in the regulatory scenario. As these benefits are not easily monetized, they are reported in hours not spent in dry cells. It estimated that as a result of these proposed regulations, inmates would spend 38 347 hours (1 598 days) less in dry cells.

Benefit to government from a reduction of time in dry cells

Under the proposed regulations, a detention within a dry cell would have a time cap of 72 hours, which can be extended to a maximum of 120 hours if there are reasonable grounds to believe the inmate has done something to prevent the expulsion of potential contraband or has reinserted or re-ingested the contraband. Overall, it is expected that, relative to the baseline, this would result in the reduction in the amount of time spent in dry cells. To estimate this benefit, it is assumed, consistent with the proposed regulations, that there will be no dry cell placements lasting more than 120 hours after the implementation of the regulations. It is further assumed that there will be 50% fewer dry cell placements between 72 and 120 hours in duration once the regulation is in place due in part to the requirement for a positive result on a body scan to support any extensions. In turn, this would result in a lower cost of running dry cells that benefits the Government ($294,797 over 10 years).

Benefit to inmates and staff from a reduction in strip searches

In the regulatory scenario, there would be a qualitative benefit to inmates and staff, particularly those with a history of abuse or trauma, or inmates with gender, religious or cultural needs, due to the use of body scanners. This is because body scans are generally considered less invasive than strip searches by both staff and inmates. During a body scan, an inmate would remain clothed (versus a strip search, where the inmate would be required to be naked). Consultations with unions and staff suggest that correctional officers would prefer to conduct a body scan over a strip search, and inmates are likely to similarly prefer body scans.

Cost-benefit statement
Table 1: Monetized costs
Impacted stakeholder Description of cost Period 1
(base year)		 Period 6 Period 10
(final year)		 Total (PV) Annualized value
Government Capital and warranty costs to purchase body scanners (including training requirements) $1,740,000 $0 $0 $7,799,076 $1,110,413
Government Body scanner maintenance costs $0 $24,750 $136,125 $370,093 $52,693
Government Ongoing operating and review costs $27,311 $155,513 $158,375 $806,774 $114,866
Government Costs to develop procedures for the collection, compilation, management and analysis of data $3,882 $4,019 $4,093 $28,004 $3,987
All stakeholders Total costs $1,771,193 $184,282 $298,593 $9,003,947 $1,281,959
Table 2: Monetized benefits
Impacted stakeholder Description of benefit Period 1
(base year)		 Period 6 Period 10
(final year)		 Total (PV) Annualized value
Inmates Reduction of minor and major injuries sustained to inmates due to a reduction of drugs entering institutions $0 $0 $0 $0 $0
Government Reduction in dry cell detentions greater than 72 hours in length $40,868 $42,306 $43,085 $294,797 $41,972
All stakeholders Total benefits $40,868 $42,306 $43,085 $294,797 $41,972
Table 3: Summary of monetized costs and benefits
Impacts Period 1
(base year)		 Period 6 Period 10
(final year)		 Total (PV) Annualized value
Total costs $1,771,193 $184,282 $298,593 $9,003,947 $1,281,959
Total benefits $40,868 $42,306 $43,085 $294,797 $41,972
NET IMPACT -$1,730,325 -$141,976 -$255,508 -$8,709,150 -$1,239,987
Sensitivity analysis

A sensitivity analysis was carried out to assess the impact of uncertainty in the price of scanners and a change in the 50% decrease in dry cell placements assumed for the regulatory scenario on the costs and benefits of the proposal:

Limitations of the cost-benefit analysis

Small business lens

Analysis under the small business lens concluded that the proposed regulations would not impact Canadian small businesses. This amendment would solely impact the CSC’s operations of its correctional institutions.

One-for-one rule

The one-for-one rule does not apply, as there is no impact on business.

Regulatory cooperation and alignment

Discussions have occurred with the California Department of Corrections and Rehabilitation, and the CSC has held in-depth conversations with provincial corrections jurisdictions in Nova Scotia (N.S.), Ontario (Ont.), and British Columbia (B.C.) with respect to their implementation of body scanners. The CSC had conducted a jurisdictional scan of correctional jurisdictions in Canada using full body scanners, and although most had introduced scanners into their practices, discussions were focused on jurisdictions with expansive and developed programs that could speak to learned experiences and share procedural advice.

The experience with body scanners and policy were found to be very similar throughout the provincial jurisdictions, and the CSC expects to incorporate many of the lessons learned regarding daily operations and training from its provincial partners in its search policies. The CSC’s discussions with the provinces confirmed many operational questions the CSC had regarding body scanners and confirmed the CSC’s interest in the technology, as it proved itself to be effective in detecting contraband, improving security and introduces an additional less restrictive search tool, which helps to alleviate concerns external stakeholders have with traditional search and seizure methods (e.g. strip-searching, dry cells).

The proposed regulations are aligned with how body scanners have been implemented in N.S., Ont., and B.C. in terms of circumstances under which a detailed scan would be conducted. However the proposed regulations would allow for detailed body scans to be conducted on inmates, visitors and staff whereas the provincial correctional facilities only conduct detailed body scans to search inmates. In addition, the proposed regulations would allow for the use of non-detailed body scans on inmates, visitors, and staff. While N.S., Ont., and B.C. do not use non-detailed body scans, the CSC believes that they would be an effective search tool in federal corrections institutions.

When it comes to dry cell practices, direct comparison is challenging, as jurisdictions differ in how similar tools may be named, used, and described in available information. In many instances such tools appear only in internal procedures and policies, operating outside of regulatory frameworks. Where large-scale changes have taken place, such as the 2021 decision by the province of Nova Scotia to cease using dry cells in provincial correctional facilities, outcomes are not yet available. At the federal level, similar tools, such as those used by the CBSA, are presently not reflected in federal regulations, with the Government’s proposed changes to the CCRR being watched closely as a potential model.

As it relates to the proposed dry cell changes, there are several jurisdictions both provincially and internationally that incorporate time constraints and extensions to their respective dry cell practices; Quebec, Oregon and Washington have 72-hour time caps, with two of them having direction on allowing 24-hour extension(s). However, the referenced jurisdictions can extend their respective dry cell detentions indefinitely with authorization from their respective decision makers. In addition, those jurisdictions are not required to conduct body scans on inmates prior to dry cell detention, whereas the proposed regulations would require that the IH rely on the result of a body scan search where a body scan search could be conducted and provided that a body scanner is both in proper working order and in the institution. The proposed regulations also make body scans available to inmates in dry cells, if a body scanner is available and operational.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus (GBA+)

On June 19, 2017, the Canadian Human Rights Act was amended, to add “gender identity or expression” to the list of prohibited grounds of discrimination. Given the extent of changes required to address gender considerations in all areas of CSC operations, dedicated resources were assigned to refine the CSC’s practices and procedures while considering policy, legal and operational issues. As a result, the CSC created the Gender Considerations Secretariat. Among its various key activities, it assisted, supported and provided guidance on operational questions related to the introduction of body scanners, specifically those associated to gender considerations.

The CSC provides services that are gender- and culture-specific to ensure that the diverse needs of offenders are met to improve their rehabilitation outcomes and to facilitate more positive conditions for community reintegration. This is also the case for operational security practices such as strip-searching that, by law, have sex requirements. Introducing body scanners reduces the need for persons to undress, hastens the search process, maintains greater respect and dignity of individuals and is an impartial process for searching diverse groups of people. Body scan searches will also ensure the respect and dignity of all persons, particularly women and individuals with gender identity and expression considerations who are more likely to have histories of sexual and physical abuse, while responding to various cultural/religious practices/issues (e.g. removing head coverings).

Further, there are some faith communities that have expressed significant concerns about the use of body scanners in airports and other settings where security is paramount. Most often, these concerns come from those belonging to faiths with strict modesty regulations/practices. In these cases, the religious restriction is not necessarily related to whether a person’s body can be viewed (i.e. for security purposes) but, rather, to who is actually viewing the images. For example, the stricter expressions of both Islam and Judaism forbid a man to view a woman’s body (and vice versa).

Although it is not expected that body scanners would adversely affect persons with various cultural/religious practices/considerations, caveats for searching persons with religious/cultural needs will be consulted on with internal and external stakeholders, and established in the Commissioner’s Directives on searching once the legislation is in force. A good example is the CSC’s current searching requirements in Commissioner’s Directive 566-7 — Searching of Offenders, as this applies to women, offenders with gender identify and expression considerations, and searching personal effects (i.e. religious articles/turbans/bandanas). The CSC will further engage its stakeholders to develop and introduce appropriate language in its searching policies that provide alternative search options for persons with certain religious/cultural beliefs while meeting the security requirements.

The dry cell amendments made in the Budget Implementation Act, 2022, No. 1 removed the legislative authority for placing in a dry cell inmates suspected of concealing contraband in their vaginal cavity. In the current practice and moving forward in the proposed regulations, women will be detained in dry cells under the same circumstances in which men would be detained. The proposed introduction of complementary regulatory amendments to the dry cell regime would further the commitment of respect for human dignity and alignment with the Charter.

Improvements to both the dry cell regime and body scanner implementation would impact federally sentenced individuals who are statistically more likely than the general Canadian population to be of Indigenous heritage, lower-educated, have a lower income, and have mental health issues.

Implementation, compliance and enforcement, and service standards

Implementation

Following the pilot project evaluation, the CSC will identify best practices and efficiencies in the deployment of the security screening devices from the pilot project. Evidence, through analysis of contraband trends and results of the pilot project will position the CSC to best determine deployment of the devices to specific institutions based on security level, inmate security profile and the contraband profile of the site.

The use of body scanners would imply a new collection of highly sensitive personal information. The collection, use, disclosure, retention, and ultimately disposal of this information is subject to the Privacy Act in ways that were not before seen with the use of strip searches. As a result, a number of privacy gaps had to be identified and subsequently mitigated to the best of the CSC’s abilities following privacy impact assessments (PIAs) to assess and mitigate privacy risks associated with the use of body scanners. Procedures would be implemented to ensure information is only accessible to authorized individuals, as needed, to review images to detect contraband. Profile information would be stored on the scanner device in a database protected by password access for retrieval, if required for further review. With the inmate’s consent, staff would delete the information from the scan after 30 days; if consent is not received to delete the scan, the information will be retained on a secure system for two years, in compliance with the Privacy Act. Information could also be removed from the scanner device using an encrypted USB key, if required for sharing with other authorized individuals for subsequent reviews (e.g. IH reviews).

Coordination and cooperation with the successful vendor will be necessary to ensure deployment is carried out in a manner as efficient as possible. The CSC has started the procurement process to award a contract for the purchasing of body scanners; this is expected to occur in 2024, prior to the implementation of the regulatory amendments. The CSC would be using existing funds to purchase the body scanners.

Information on body scanners would be provided to inmates, staff and visitors through updates to inmate handbooks, posters with information about privacy, health and safety information associated with body scanners at the location of the body scanner, and through structured communication strategies.

Staff throughout the organization would be advised through communication strategies about the changes to the regulations and new authorities for the CSC in regard to the use of body scanners.

Operators would be trained on the safe operation of the devices by the vendor, as identified in the contract.

The proposed regulations regarding dry cells would be reflected and further clarified in the relevant Commissioner’s Directive 566-7 — Searching of Offenders. Awareness would also be raised via a policy bulletin. These changes would be implemented at institutions immediately upon the proposed regulations coming into effect. The proposed regulations would not require any additional staff training on the use of dry cells.

The proposed regulations would come into force on the day on which the remaining changes to the CCRA, made by former Bill C-83, come into force. It is anticipated that this would be early in 2024.

Compliance and enforcement

CSC would ensure staff are following the regulations by first ensuring awareness, education and training on the new regulatory requirements, including structured training, information sessions, documentation/reporting to various levels in the organization and audits of activities.

The proposed regulations would be further elaborated upon in the CSC’s relevant Commissioner’s Directive. The new reporting requirements that are being introduced in the proposed regulations, along with the requirement that the CSC set out procedures for the collection, compilation, management and analysis of that data, would aid in ensuring compliance and monitoring trends. When a dry cell detention reaches 48 hours, the Assistant Deputy Commissioner, Correctional Operations (ADCCO) at Regional Headquarters must be notified. At 72 hours, and in the case of any extension beyond 24 hours, the Director General, Security, at National Headquarters must also be notified. These notifications require a detailed rationale for the detention. This would allow for both Regional and National Headquarters to provide oversight and guidance on the use of dry cells. The CSC would collect dry cell-related data from institutions, which would further aid in ensuring compliance.

Service standards

In the proposed regulations, there is a requirement to conduct a body scan search of an inmate in a dry cell upon their request, if they have not undergone a body scan in the preceding 24 hours while in a dry cell. The CSC intends to provide the requested body scan search without delay, to ensure that the results can be used to support the continued detention or removal from dry cells.

Additional procedural standards will be outlined in relevant Commissioner’s Directives and other internal policy documentation.

Contact

Stacey Ault
Director
Corrections and Criminal Justice Division
Crime Prevention Branch
Public Safety Canada
269 Laurier Ave West
Ottawa, Ontario
K1A 0P8
Email: correctionspolicy-politiquecorrectionnelles@ps-sp.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council proposes to make the annexed Regulations Amending the Corrections and Conditional Release Regulations under sections 46footnote a, 48.1footnote b, 60.1footnote c, 64.1footnote d and 96footnote e of the Corrections and Conditional Release Act footnote f.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. They are strongly encouraged to use the online commenting feature that is available on the Canada Gazette website but if they use email, the representations should cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to correctionspolicy-politiquecorrectionnelles@ps-sp.gc.ca.

Ottawa, April 20, 2023

Wendy Nixon
Assistant Clerk of the Privy Council


Regulations Amending the Corrections and Conditional Release Regulations

1 The Corrections and Conditional Release Regulations footnote 3 are amended by adding the following after section 46:

46.1 (1) The following definitions apply in this Part.

body scanner,
for the purposes of section 46 of the Act and subsection 48(2) of the Act, means a security screening device that is capable of detecting contraband that is in or on a clothed person and includes a device that can produce detailed images of the insides of a person’s body. (détecteur à balayage corporel)
detailed body scan search
means a body scan search conducted by a body scanner in a manner that does produce detailed images of the insides of a person’s body that is the subject of the search for a staff member to review. (fouille par balayage corporel détaillée)
dry cell
means a cell without plumbing fixtures. (cellule nue)
non-detailed body scan search
means a body scan search conducted by a body scanner in a manner that does not produce detailed images of the insides of a person’s body that is the subject of the search. (fouille par balayage corporel non-détaillée)

(2) A body scan search — detailed or non-detailed — conducted in order to detect the presence of contraband shall be carried out in accordance with the Commissioner’s Directives by a staff member trained in the use of the body scanner.

(3) Prior to performing a body scan search, the Service shall make available to any person who is to be the subject of the search all relevant health and safety information about the body scanner.

(4) The results of a detailed body scan search on an inmate who is detained in a dry cell under section 51 of the Act shall be provided to the institutional head as soon as practicable.

2 Section 50 of the Regulations is replaced by the following:

50. The power of the institutional head to authorize strip searches of inmates under paragraph 49(3)(b) of the Act or, if applicable, detailed body scan searches, may be exercised by a staff member who is in a more senior position than the staff member referred to in subsection 49(3) of the Act.

50.1 A staff member may conduct a non-detailed body scan search of an inmate in the same circumstances that they may conduct the following searches:

50.2 A staff member may conduct a detailed body scan search of an inmate

50.3 A staff member shall conduct a detailed body scan search of an inmate who is detained in a dry cell under section 51 of the Act at the request of the inmate if the body scanner is in the penitentiary, is in proper working order and the inmate has not been subjected to such a search within the 24-hour period preceding the request.

3 The Regulations are amended by adding the following after section 53:

Dry Cell Detention

53.1 (1) If a body scanner is in the penitentiary and is in proper working order and a detailed body scan search can be conducted, the institutional head shall not authorize the detention of an inmate in a dry cell under section 51 of the Act unless the inmate has been the subject of such a search and the results of the search indicate that there are reasonable grounds to believe that the inmate has ingested contraband or is carrying contraband in their rectum.

(2) If the inmate is the subject of a new detailed body scan search, the institutional head shall not authorize continuing the detention of the inmate in a dry cell unless the results of the search indicate that there are reasonable grounds to believe that the inmate has ingested contraband or is carrying contraband in their rectum.

53.2 (1) Subject to subsection (2), the institutional head may authorize in writing the continuation of the detention of an inmate in a dry cell beyond a period of 72 hours for a maximum of two additional 24-hour periods, on the expectation that the contraband will be expelled, if the institutional head is satisfied that there are reasonable grounds to believe that the inmate

(2) If a body scanner is in the penitentiary and is in proper working order and a detailed body scan search can be conducted, the institutional head shall not authorize continuing the detention of an inmate in a dry cell unless the inmate has been the subject of a new body scan search and the results of the search indicate that there are reasonable grounds to believe that the inmate has ingested contraband or is carrying contraband in their rectum.

53.3 The institutional head shall give written reasons to an inmate, as soon as practicable, with respect to any authorization as to their detention in a dry cell or a continuation of that detention.

53.4 (1) The Service shall ensure that measures are taken to provide for the ongoing monitoring of the physical and mental health of an inmate detained in a dry cell.

(2) A staff member or person engaged by the Service who believes that the detention of an inmate in a dry cell is having a detrimental impact on the inmate’s physical or mental health shall refer the inmate’s case to a registered health care professional employed or engaged by the Service, including for any of the following reasons:

53.5 An inmate shall be released from detention in a dry cell on the occurrence of the earliest of the following events:

53.6 The Service shall set out procedures for the collection, compilation, management and analysis of data with respect to the use of dry cells, including the information set out in subsection 58.1(3), in order to identify trends in that data.

4 Subsection 54(2) of the Regulations is replaced by the following:

(2) If a visitor refuses to undergo a search referred to in subsection (1) or section 54.1, the institutional head or a staff member designated by the institutional head may

54.1 (1) A staff member may conduct a non-detailed body scan search of a visitor in the same circumstances as a staff member may conduct a routine non-intrusive search or a routine frisk search of a visitor under subsection 54(1) of these Regulations or a frisk search of a visitor under subsection 60(1) of the Act.

(2) A staff member may conduct a detailed body scan search of a visitor in the same circumstances as a staff member may conduct a strip search of a visitor under subsection 60(2) of the Act.

5 The Regulations are amended by adding the following after section 56:

56.1 (1) A staff member may conduct a non-detailed body scan search of another staff member in the same circumstances as a staff member may conduct a routine non-intrusive search or a routine frisk search of another staff member under section 56 of these Regulations or a frisk search of another staff member under subsection 64(1) of the Act.

(2) A staff member may conduct a detailed body scan search of another staff member in the same circumstances as a staff member may conduct a strip search of another staff member under subsection 64(1) of the Act.

6 (1) Paragraph 58(1)(b) of the Regulations is replaced by the following:

(2) Subsection 58(1) of the Regulations are amended by adding the following after paragraph (c):

(3) Subsection 58(3) of the Regulations is replaced by the following:

(3) Every institutional head who authorizes a search of an inmate under paragraph 50.2(c) of these Regulations or a search of all inmates under section 53 of the Act shall prepare and submit to the head of the region, as soon as practicable and in accordance with subsection (4), a post-search report respecting the search.

(4) Subsections 58(5) and (6) of the Regulations are repealed.

7 The Regulations are amended by adding the following after section 58:

58.1 (1) The institutional head shall immediately submit a written report on the use of a dry cell to the staff member at regional headquarters who is designated by name or position for that purpose in Commissioner’s Directives if

(2) The institutional head shall immediately submit a written report on the use of a dry cell to the responsible staff member at regional headquarters and the staff member at national headquarters who are designated by name or position for that purpose in Commissioner’s Directives when an inmate

(3) Every report on the use of a dry cell submitted by the institutional head under subsection (1) or (2) must contain the following:

Coming into Force

8 These Regulations come into force on the day on which section 12 of An Act to amend the Corrections and Conditional Release Act and another Act, chapter 27 of the Statutes of Canada 2019, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

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