Fourth

Session, 46th General Assembly

Elizabeth II, 2011

BILL 9

AN ACT RESPECTING

CORRECTIONAL SERVICES

Received and Read the First Time ...................................................................................................

Second Reading .................................................................................................................................

Committee ............................................................................................................................................

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE

FELIX COLLINS

Minister of Justice and Attorney General

Ordered

to be printed by the Honourable House of Assembly

EXPLANATORY NOTES

This Bill

would repeal and replace the Prisons Act

and the Adult Corrections Act to

consolidate, modernize and clarify the law respecting adult custody and

corrections.

This Bill

would

establish

fundamental guiding principles as to how the Act is to be interpreted and

administered and require staff to follow those principles while exercising

powers and performing duties or functions under the Act;

those fundamental guiding principles, recognize that corrections policies,

programs and practices will respect age, gender, sexual orientation, ethnic,

cultural, religious and linguistic differences and be responsive to the particular

needs of women and aboriginal peoples, the needs of offenders with particular

mental health and addictions requirements and the needs of offenders with

special requirements;

establish

an inmate's grievance procedure allowing inmates to file, without negative

consequences, complaints about issues arising from their involvement with the

correctional system;

establish

a new disciplinary process, that is procedurally fair and in line with the

principles of fundamental justice, to review breaches by inmates of the

regulations or the rules of a correctional facility;

set

out the circumstances in which searches of inmates, visitors and staff within

the correctional facility may be performed;

establish

a procedure for conducting illicit drug testing of inmates;

provide

for the establishment of Codes of Professional Conduct for staff members; and

establish

a statutory review process for review of the Act.

A BILL

AN ACT RESPECTING CORRECTIONAL SERVICES

Analysis

Short title

Definitions

Labrador Inuit rights

PART

PRINCIPLES

Principles

PART

ADMINISTRATION

Agreements

Appointments

Chief superintendent and superintendents

Chief adult probation officer

Powers and duties of probation officer

Staff shall follow principles

Code of Professional Conduct

Protection from liability

Volunteers

Disclosure of information

PART

III

CUSTODY OF INMATES

Division

Correctional facilities

Establishing or discontinuing facilities

Regulation outside correctional facility

Rules and information for inmates

Inmate assessment and plans

Division

Inmates grievance procedure

Grievance procedure

Division

Discipline

Hearing adjudicator and disciplinary

hearings

Appeal adjudicators

Appeal of decision of hearing

adjudicator

Judicial review

Division

Security

Inmate communication

Disclosure

Use of force

Search of inmates

Search and detention of visitors

Search and detention of staff members

Search of vehicles

Contraband and trespassing offences

Illicit drug test

Power to seize and dispose of objects or

substances seized

Division

Absences, Employment and Remission

Temporary absences

Suspension, cancellation and revocation

of temporary absence

Temporary absence panel

Work programs

Earned remission

Division

Inspection and investigations

Inspections

Investigations

Power to require persons to answer

questions and order disclosure

Contempt proceeding for uncooperative

person

Response to the director

Offence of obstructing inspections or

investigations

PART

CONTINUITY OF CORRECTIONAL PROGRAMS AND SERVICES

Continuity of programs and services

PART

GENERAL

Statutory review

Jurisdiction of National Parole Board

Regulations

PART

TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS, REPEAL AND COMMENCEMENT

Transitional provisions

Consequential amendments

Repeal

Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

Short title

1. This

Act may be cited as the Correctional

Services Act .

Definitions

2. In

this Act

(a) "authorized person" means the chief

superintendent and the superintendent of a correctional facility and includes

(

i) a staff member designated by the

superintendent of the correctional facility to exercise the powers and perform

the duties and functions under sections 24 , 25 , 26 , 27 , 28 , 29 , 30 and 32 , and

(ii) a member of a category of persons designated

by the chief superintendent to exercise the powers and perform the duties and

functions under sections 24 , 25 , 26 , 27 , 28 , 29 , 30 and 32 ;

(b) "chief adult probation officer"

means the Chief Adult Probation Officer appointed under

section 6 ;

(c) "chief superintendent" means the Chief

Superintendent of Correctional Facilities appointed under

section 6 ;

(d) "contraband" means

(

i) an illicit drug,

(ii) if possessed without prior authorization, a

weapon, a component of a weapon or ammunition for a weapon, or a thing that is

designed to kill, injure or disable or is altered so as to be capable of

killing, injuring or disabling,

(iii) an explosive or bomb, or a component of an

explosive or bomb,

(iv) if possessed without prior authorization,

currency,

(

v) if possessed without prior authorization,

tobacco leaves or a product produced from tobacco, or

(vi) if possessed without prior authorization,

another object or substance that, in the opinion of an authorized person, may

threaten the management or operation of, or discipline, security, health or

safety of persons in the correctional facility;

(e) "correctional facility" means a

place of lawful confinement in the province including, a jail, prison, lockup,

place of imprisonment, camp or correctional institution, and land connected

with it, but does not include

(

i) penitentiaries under the control of the

(ii) a facility designated for young offenders

under the Young Persons Offences Act ;

(f) "director" means the Director of

Corrections and Community Services appointed under

section 6 ;

(g) "division" means the Corrections and

Community Services Division of the Department of Justice;

(h) "illicit drug " means

(

i) alcohol,

(ii) a controlled substance and an analogue, as defined

in the Controlled Drugs and Substances

Act ( Canada ),

and

(iii) any other substance designated by the regulations;

(i) "illicit drug test" means a test,

prescribed in the regulations, to determine the presence of an illicit drug;

(j) "inmate" means a person who is

sentenced to imprisonment or otherwise lawfully detained at a correctional facility;

(k) "inmate communication" means

communication made or intended to be made by oral, written, electronic or another

means that may be prescribed, between an inmate and another person, including

another inmate, other than a privileged communication specified in regulations

made under paragraph 48 (x);

(l) "minister" means the minister

appointed under the Executive Council Act

to administer this Act;

(m) "monitor" means, in respect of

inmate communication,

(

i) to listen to inmate communication in the

course of a visit,

(ii) to listen to inmate communication that is made

by telephone or other electronic means or to inmate communication that was made

by telephone or other electronic means and recorded, or

(iii) to read inmate communication delivered to the

correctional facility or sent from within the facility;

(n) "offender" means an inmate, a person

serving a custodial sentence or a community based sentence or a person subject

section 810.1 or 810.2 of the Criminal

Code;

(o) "staff member" includes the chief

superintendent, superintendents, and other commissioned and non-commissioned

officers, correctional officers and other persons employed at a correctional

facility and the chief adult probation officer and probation officers;

(p) "superintendent" means the superintendent

appointed under

section 6 ; and

(q) "temporary absence" means a

temporary absence authorized under

section 34 .

Labrador Inuit

rights

3 . This

Act and regulations made under this Act shall be read and applied in

conjunction with the Labrador Inuit Land

Claims Agreement Act and, where a provision of this Act or regulations made

under this Act is inconsistent or conflicts with a provision, term or condition

of the Labrador Inuit Land Claims

Agreement Act , the provision, term or condition of the Labrador Inuit Land Claims Agreement Act shall have precedence over

the provision of this Act or a regulation made under this Act.

PART I

PRINCIPLES

Principles

4. This

Act and the regulations made under it shall be interpreted and administered in a

manner consistent with the following principles:

(

a) the protection of society shall be given

paramount consideration in making decisions or taking action under this Act;

(

b) the safety of the community will be enhanced

by addressing, as far as possible, through programming and services designed to

promote rehabilitation and reintegration, the needs and circumstances of

offenders that are related to their offending behaviour;

(

c) staff members will be given

(

i) wherever possible, appropriate career

development and training opportunities, and

(ii) a workplace environment that encourages integrity and personal

accountability and that is consistent with the relevant Code of Professional Conduct

established under

section 11 ;

(

d) offenders shall obey community supervision

conditions and correctional facility rules and will be subject to the least restrictive

measures consistent and necessary for the protection of the public, staff

members and offenders;

(

e) inmates are entitled to fair treatment with

access to an effective grievance and disciplinary procedure; and

(

f) policies, programs and practices will respect age,

gender, sexual orientation, ethnic, cultural, religious and linguistic

differences and will be responsive to the particular needs of women and

aboriginal peoples, the needs of offenders with particular mental health and

addictions requirements, and the needs of other groups of offenders with

special requirements.

PART II

ADMINISTRATION

Agreements

5. The

another province, or a person or group of persons

(

a) respecting the provision of a correctional

service provided or to be provided under this Act or a program

established or to be established under this Act or the provision

of a service relating to corrections or offenders that is provided or required

under

an Act of Parliament;

(

b) respecting the transfer of inmates from a

correctional facility to a penitentiary or to an institution for the custody of

offenders in another province or territory, or from a penitentiary or an institution

for the custody of offenders in another province or territory to a correctional

facility; or

(

c) for another purpose appropriate to the

administration of this Act .

Appointments

(1) The

Lieutenant-Governor in Council may appoint

(

a) Director of Corrections and Community Services;

(

b) Chief Superintendent of Correctional

Facilities;

(

c) Chief Adult Probation Officer; and

(

d) Superintendent for each correctional facility

in the province.

(2) In an appointment under subsection (1), the Lieutenant-Governor

in Council may

(

a) limit the powers and duties that a person may

exercise under this Act ; and

(

b) make the appointment subject to terms and

conditions.

(3) A superintendent, appointed under paragraph

(1)(d), of a correctional facility that houses female inmates, must have the

knowledge, experience, skill and education necessary to appreciate and understand

the unique challenges and needs faced by the female inmates of that

correctional facility which may be the result of their pre-incarceration

circumstances.

(4) Correctional officers, adult probation

officers, classification and program staff and other officers and employees

necessary to exercise powers and perform duties and functions in the

administration of this Act

shall be employed in the manner authorized by law.

(5) Persons appointed or employed to exercise

powers and perform duties and functions in the administration of this Act are peace officers

and have all the powers, authority, protection and privileges that peace

officers have by law while exercising those powers and performing those duties

and functions.

Chief superintendent

and superintendents

(1) The

chief superintendent, under the supervision of the director, is responsible for

the operation of correctional facilities in the province.

(2) Where there is no chief superintendent or

where the chief superintendent is absent for an extended period of time, a

member of the staff designated by the minister has the power and shall perform

the duties and functions of the chief superintendent.

(3) Each superintendent is responsible, under the

supervision of the chief superintendent and within the correctional facility

for which they have been appointed, for

(

a) the safe, secure and efficient operation of that

correctional facility through the overall management and administration of the

correctional facility;

(

b) the well-being of the inmates of that

correctional facility;

(

c) the provision of programs to assist in the

rehabilitation and reintegration of offenders in that correctional facility;

(

d) the safety and security of inmates until their

final release or the inmates transfer to another correctional facility; and

(

e) the administration of this Act within that correctional

facility.

(4) Where there is no superintendent for a

correctional facility or the superintendent for that correctional facility is

absent for an expended period of time, a member of the staff designated by the

minister has the power and shall perform the duties and functions of that superintendent

for that correctional facility.

(5) The chief superintendent may name a person to

be the person in charge of the correctional facility when the superintendent of

that correctional facility is not available.

(6) The person designated under subsection (5) has

the power to deal with the operational requirements necessary for the efficient

operation of the correctional facility.

Chief adult probation

officer

(1) The

chief adult probation officer is responsible, under the supervision of the director , for

(

a) the safe, effective and efficient delivery of

services to offenders subject to community supervision through the overall

planning, management and administration of the Community Services Branch of the

division;

(

b) the supervision of offenders subject to

community supervision;

(

c) the development of programs to assist in

rehabilitation and reintegration of offenders; and

(

d) the administration of the Act and the regulations

as it relates to supervision of offenders in the community.

(2) Where there is no chief adult probation

officer or where the chief adult probation officer is absent for an extended

period of time, a member of the staff named by the minister has the power and

shall perform the duties of the chief adult probation officer.

Powers and duties

of probation officer

(1) A

probation officer

(

a) is a probation officer for all of the

province;

(

b) is an officer of every court in the province;

(

c) shall prepare reports for the court as the

court may order; and

(

d) has power to procure and report information

for the court in respect of a person convicted of an offence.

(2) A probation officer is responsible for the

supervision of persons

(

a) placed on probation by a court;

(

b) subject to a conditional sentence imposed by a

court;

(

c) subject to the provisions of

section 810.1 or

810.2 of the Criminal Code ;

(

d) on temporary absence, where requested by a

superintendent;

(

e) found guilty of an offence in the family

violence court and awaiting the sentence of that court; and

(

f) in other circumstances prescribed in the

regulations.

(3) A probation officer may exercise the powers of

an authorized person set out in subsection 32

(1) in respect of a person under his or her supervision.

(4) If a probation officer exercises the powers of

an authorized person set out in subsection 32

(1) in respect of a person under his or her supervision, the probation officer shall

perform the duties set out in subsection 32

(2) in respect of the person under his or her supervision.

(5) A probation officer charged with

the supervision of a person who is subject to a probation order or a

conditional sentence or to the provisions of

section 810.1 and 810.2 of the Criminal Code , may report to the court

or a member of a provincial police force if the person fails to carry out the

terms of

(

a) the

probation order;

(

b) the

conditional sentence; or

(

c) an

order under

section 810.1 or 810.2 of the Criminal

Code .

(6) A

probation officer charged with the supervision of a person on a temporary

absence may report to the superintendent who requested the supervision, if the

person fails to carry out the terms of the temporary absence.

Staff shall follow principles

10. A person employed to exercise powers and

perform duties or functions in the administration of this Act shall act according to the principles of this Act while exercising those powers and performing those duties or

functions.

Code of Professional Conduct

11. The director may establish Codes of

Professional Conduct that will apply to those categories of staff members that

the director names in the Code.

Protection

from liability

12. A person is not

personally liable for anything done or omitted in good faith in the exercise or

performance, or intended exercise or performance, of

(

a) a

power, duty or function conferred upon him or her by this Act; or

(

b) a

power, duty or function on behalf of or under the direction of a person on whom

the power, duty or function is conferred by this Act,

or for

the costs in connection with an action or proceeding.

Volunteers

(1) The superintendent of a correctional

facility may authorize volunteer organizations or individual volunteers to

provide services for offenders in accordance with this Act .

(2) The

superintendent shall determine the screening and qualifications of a volunteer

organization or an individual volunteer.

(3) The

authorization of a volunteer organization or an individual volunteer shall be

made in writing and shall state the scope of services to be provided by the volunteer

organization or the individual volunteer.

Disclosure of information

(1) In this

section

(a) "victim"

means

(

i) the person against whom an offence was committed by the offender

and if that person is a minor, the parent or guardian of that minor, and

(ii) if the person referred to in subparagraph (

i) is deceased, ill or

otherwise incapacitated, the spouse, child, parent or sibling of the person;

and

(b) "Victim

Services" means the Victim Services Division of the Department of Justice.

(2) On the request of Victim Services or a victim of an offence of which

an offender has been found guilty, the superintendent of a correctional

facility in which the offender is incarcerated

(

a) shall

disclose to Victim Services or to the victim the following information about

the offender:

(

i) the offender's name,

(ii) the offence of which the offender was found guilty and the court

that found the offender guilty,

(iii) the date of commencement and length of the sentence that the court

imposed,

(iv) conditions contained in the offender's sentence that relate to the

victim,

(

v) the date on which the offender is to be released from custody,

including the date or dates of a temporary absence,

(vi) conditions attached to the offender's release, including conditions

attached to a temporary absence that relate to the victim; and

(vii) the location of the correctional facility in which the offender's

sentence is being served; and

(

b) may

disclose to Victim Services or to the victim, where in the superintendent's

opinion the interest of the victim in the disclosure clearly outweighs the

invasion of the offender's privacy that could result from the disclosure, the

municipality or area where the offender proposes to reside on temporary absence

or while under court‑ordered community supervision and whether the

offender will be in the vicinity of the victim while travelling to that

municipality or area, if known.

(3) If the offender is under the supervision of a probation officer, the

chief adult probation officer, on the request of Victim Services or a victim of

the offence of which the offender has been found guilty,

(

a) shall

disclose to Victim Services or the victim the following information about the

offender:

(

i) the offender's name,

(ii) the offence of which the offender was found guilty and the court

that found the offender guilty,

(iii) the date of commencement and length of the sentence that the court

imposed,

(iv) conditions contained in the offender's sentence that relate to the

victim, and

(

v) conditions attached to the offender's release, including conditions

attached to a temporary absence or to court‑ordered community supervision

that relate to the victim; and

(

b) may

disclose to Victim Services or the victim where, in the opinion of the chief adult

probation officer, the interest of the victim in the disclosure clearly

outweighs the invasion of the offender's privacy that could result from the

disclosure, the municipality or area where the offender is residing while under

the supervision of a probation officer and whether the offender will be in the

vicinity of the victim while travelling to or through the municipality or area

where the victim resides, if applicable.

PART III

CUSTODY OF INMATES

Division 1

Correctional facilities

Establishing or discontinuing facilities

15. The Lieutenant-Governor in Council may

establish, continue or discontinue correctional facilities as the Lieutenant-Governor

in Council considers necessary.

Regulation

outside correctional facility

16. A

street, highway or place, public or private, along or across which an inmate

may pass in going to or returning from work, duty or other absence authorized

under

section 34 and every place where an

inmate may be under that section, shall, while so used by an inmate, be

considered a portion of a correctional facility for the purpose of this Act,

except for the purpose of subsection 31 (2).

Rules and information

for inmates

(1) The

superintendent shall establish rules, which are not inconsistent with this Act

or the regulations and, subject to the approval of the chief superintendent,

respecting matters referred to in subsection 7 (3),

including rules respecting

(

a) the conduct of inmates of the correctional

facility;

(

b) activities of inmates of the correctional

facility; and

(

c) other matters necessary or advisable for the

maintenance of order and good management of the correctional facility.

(2) On admission to a correctional facility, every

inmate shall be provided with full information concerning the rules of the

correctional facility.

(3) Information

referred to in subsection (2) shall

(

a) be

in writing or by other means that the inmate understands; and

(

b) include

the rules relating to

(

i) the rights and privileges of inmates,

(ii) the making of complaints by inmates,

(iii) discipline, and

(iv) programs and services.

(4) Inmates of a correctional facility shall

comply with the rules set by the superintendent for that correctional facility and

those set out by regulation.

Inmate assessment

and plans

(1) As

soon as practicable after an inmate has entered a correctional facility, an

assessment of the inmate shall be made in a manner compatible with the length

of the sentence, the inmate's status and the nature of the offence, and, if

applicable, a plan shall be prepared for the inmate.

(2) A plan referred to in subsection (1) shall

assess the inmate's correctional needs and the appropriate programs to meet

those needs to

(

a) support the inmate in developing

accountability and being rehabilitated, healed and reintegrated into the

community; and

(

b) deter and reduce offending behaviour.

Division 2

Inmates grievance procedure

Grievance procedure

(1) There shall be a procedure for fairly and

expeditiously resolving inmate grievances on matters within the jurisdiction of

the chief superintendent, and the procedure shall operate in accordance with

regulations made under paragraph 48 (d).

(2) Every inmate shall have complete access to the inmate grievance procedure

without negative consequences.

Division 3

Discipline

Hearing

adjudicator and disciplinary hearings

(1) The minister may appoint persons, including

employees of the government of the province who are not employees of a correctional

facility, as hearing adjudicators to conduct disciplinary hearings in accordance

with the regulations for the purpose of

(

a) reviewing

breaches by inmates of the regulations or of the rules

of a correctional facility; and

(

b) determining

appropriate punishment for breaches of the regulations

or of the rules of a correctional facility.

(2) A hearing adjudicator may be appointed for a

term of not more than 5 years and may be reappointed.

(3) A person appointed as a hearing adjudicator

continues to hold office after the expiry of the term of

the appointment until the person is reappointed or replaced.

(4) The Lieutenant-Governor in Council may determine the remuneration

for services and allowances for travelling and other expenses that shall be

paid to hearing adjudicators who

are not employees of the government of the

province.

(5) A hearing adjudicator may accept evidence that

the hearing adjudicator considers to be relevant to the

determination of the issues and is not bound by the rules of law respecting

evidence applicable to judicial proceedings.

(6) A hearing adjudicator may dismiss a charge

made against an inmate without a hearing.

(7) The fact that an inmate is alleged to have

committed

an act or omission that is an offence under an

enactment of Canada

or the province does not prevent disciplinary action from being taken against

the inmate in respect of a contravention of this Act or the regulations or the

rules of a correctional facility.

Appeal

adjudicators

(1) The minister may appoint persons as appeal

adjudicators to conduct, in accordance with the regulations, appeals of

decisions of hearing adjudicators in respect of disciplinary hearings.

(2) An appeal adjudicator may be appointed for a

term of not more than 5 years and may be reappointed.

(3) A person appointed as an appeal adjudicator

continues to hold office after the expiry of the term of

the appointment until the person is reappointed or replaced.

(4) The Lieutenant-Governor

in Council may determine the remuneration for services and allowances for

travelling and other expenses that shall be paid to appeal adjudicators.

Appeal of

decision of hearing adjudicator

(1) For the purpose of subsections (2) and (3) and

section

23 , "superintendent of the correctional

facility" means the superintendent of the

correctional facility where the inmate was charged with the breach of the

regulations or of the rules of the correctional facility that resulted in the

disciplinary hearing.

(2) An inmate to whom the decision relates or the superintendent

of the correctional facility may appeal the decision of a hearing adjudicator

to an appeal adjudicator.

(3) A request for an appeal by an inmate or the

superintendent of the correctional facility shall be filed in writing with the chief superintendent within 7 calendar days of the decision

being appealed from.

(4) The request for an appeal shall set out

(

a) the

circumstances and other relevant particulars of the matter being appealed;

(

b) the

grounds for the appeal; and

(

c) the

relief being requested.

(5) An appeal shall be based solely on the record of

the disciplinary hearing and the decision of the hearing

adjudicator.

(6) The record of the disciplinary hearing may be

in the form of a written document or an audio or video

recording of the disciplinary hearing, or a combination of them.

(7) If the information provided on a request for an

appeal discloses that new evidence may have become

available since the disciplinary hearing, the appeal adjudicator shall refer

the matter, including the new evidence that may have been submitted to the

appeal adjudicator, to the original hearing adjudicator or another hearing

adjudicator to be dealt with in accordance with subsection (8).

(8) Where a matter is referred to a hearing

adjudicator under subsection (7), the hearing adjudicator

may

(

a) rehear

the matter in accordance with

section 20 if, in the opinion

of the hearing adjudicator,

(

i) the new evidence was not available at the original disciplinary hearing, and

(ii) the new evidence is relevant to and probative of the issues before the hearing adjudicator; or

(

b) refuse

to rehear the matter if, in the opinion of the hearing adjudicator,

(

i) the evidence was available at the original disciplinary hearing but was not presented, or

(ii) the evidence is not relevant to or probative of the issues before the hearing adjudicator.

(9) At the conclusion of an appeal, the appeal

adjudicator may

(

a) confirm,

revoke or vary the decision of the hearing adjudicator; or

(

b) order

that a new disciplinary hearing be held.

Judicial review

(1) An inmate to whom the decision relates or the superintendent

of the correctional facility may apply for judicial review of a decision of an appeal adjudicator in accordance with the Rules of the Supreme Court, 1986 .

(2) Where an inmate applies for judicial review

under subsection (1), the superintendent of the

correctional facility is a party to the judicial review and may make full

submissions on all issues on the application.

Division 4

Security

Inmate communication

(1) An

authorized person may restrict, intercept, monitor or record inmate

communication in accordance with this

section and the r egulations .

(2) An authorized person may without

individualized suspicion intercept or record inmate communication.

(3) An authorized person may restrict or monitor

inmate communication if one or more of the following apply:

(

a) the authorized person has reasonable grounds

to believe that the inmate is

(

i) involved in illegal activities,

(ii) harassing or causing harm to others, or

(iii) participating in an activity that may

jeopardize the safety, security or operation of the correctional facility;

(

b) a court order restricts or prohibits

communication or contact between the inmate and the other person; and

(

c) the other person has indicated to the

authorized person that they do not wish to communicate with the inmate.

(4) If inmate communication has been restricted,

an authorized person shall as soon as practicable inform the inmate in writing

and give the reasons under subsection (3) for the restriction.

Disclosure

(1) An

authorized person may

(

a) in prescribed circumstances or in relation to

prescribed classes of inmate communication, disclose in the prescribed manner

that a communication is inmate communication; and

(

b) in prescribed circumstances or in relation to

prescribed classes of communication specified in regulations made under paragraph

48 (

x) as privileged, disclose in the prescribed

manner that a privileged communication originates from the correctional facility.

(2) For the purpose of paragraph (1)(b), an

authorized person may without individualized suspicion intercept a privileged

communication.

Use of force

26. Persons

appointed or employed to exercise powers and perform duties in the

administration of this Act may use a reasonable degree and means of force to

(

a) prevent injury or death to a person;

(

b) prevent property damage;

(

c) prevent an inmate from escaping; and

(

d) maintain custody and control of an inmate.

Search of inmates

(1) On admission, entry or return of an inmate to a correctional

facility, an authorized person shall conduct a search of the inmate and the

personal possessions, including clothing that the inmate may be carrying or

wearing.

(2) For

the purpose of detecting contraband, an authorized person may without

individualized suspicion conduct periodic searches of

(

a) an

inmate and the personal possessions, including clothing, that the inmate may be

carrying or wearing; and

(

b) the

inmate's cell and its contents.

(3) If

an authorized person believes on reasonable grounds that an inmate may be in

possession of contraband or evidence relating to an offence under subsection 31 (1), the authorized person may conduct a search, as

necessary in the circumstances, of

(

a) the

inmate and the personal possessions, including clothing, that the inmate may be

carrying or wearing; and

(

b) the

inmate's cell and its contents.

(4) A

search under subsection (1), (2) or (3) may include a strip search conducted in

accordance with the regulations.

(5) A

strip search of an inmate shall be conducted by an authorized person of the

same sex as the inmate unless the delay that would be caused by complying with

this requirement would result in imminent danger to human life or safety.

Search and detention of visitors

(1) An authorized person

may, for security or safety purposes and without individualized suspicion,

conduct routine searches of a visitor entering or leaving or in the

correctional facility and of the personal possessions, including clothing, that

the visitor may be carrying or wearing.

(2) Notwithstanding

subsection (1), if a visitor refuses to undergo a search under that subsection,

the authorized person may

(

a) prohibit a contact visit with an inmate and

authorize a non-contact visit; or

(

b) request the visitor to leave the correctional facility

immediately.

(3) A visitor shall

comply with a request made under subsection (2) (b).

(4) The chief

superintendent may establish guidelines setting out what constitutes a routine

search under this section.

(5) If an authorized

person believes on reasonable grounds that a visitor is carrying contraband or

is in possession of evidence relating to an offence under subsection 31 (1),

(

a) the authorized person may, with the visitor's

consent, conduct a search of the visitor and the personal possessions, including

clothing, that the visitor may be wearing or carrying, in order to find the

contraband or evidence; or

(

b) the superintendent of the correctional facility

may authorize the detention of the visitor in order to obtain the services of

the police.

(6) With the visitor's

consent, a search under paragraph (5)(

a) may include a strip search conducted

in accordance with the regulations.

(7) A strip search

of a visitor shall be conducted by an authorized person of the same sex as the

visitor unless the delay that would be caused by complying with this

requirement would result in imminent danger to human life or safety.

(8) If contraband

or evidence relating to an offence under subsection 31

(1) is found in a search under subsection (1) or paragraph (5)(a), the superintendent

of the correctional facility may authorize the further detention of the visitor

in order to obtain the services of the police.

(9) A person

detained under this

section shall

(

a) be informed promptly of the reasons for the

detention and of his or her right to retain and instruct counsel; and

(

b) be given a reasonable opportunity to retain

and instruct counsel.

Search and detention of staff members

(1) An authorized person may without individualized suspicion

conduct

(

a) routine searches, authorized for security or

safety purposes by the superintendent of the correctional facility, of staff

members entering or leaving or in the correctional facility and of the personal

possessions, including clothing, that staff members may be carrying or wearing;

and

(

b) random searches, authorized for security or

safety purposes by the superintendent, of staff members' lockers.

(2) A staff member

shall not impede or obstruct an authorized person conducting a search under

subsection (1).

(3) The chief

superintendent may establish guidelines setting out what constitutes a routine

search under this section.

(4) If an

authorized person believes on reasonable grounds that a staff member is

carrying contraband or is in possession of evidence relating to an offence

under subsection 31 (1),

(

a) the authorized person may, with the staff

member's consent, conduct a search of the staff member, the staff member's

locker in the correctional facility and the personal possessions, including

clothing, that the staff member may be wearing or carrying, in order to find

the contraband or evidence; or

(

b) the superintendent of the correctional facility

may authorize the detention of the staff member in order to obtain the services

of the police.

(5) With the staff

member's consent, a search under subsection (4)(

a) may include a strip search

conducted in accordance with the regulations.

(6) A strip search

of a staff member shall be conducted by an authorized person of the same sex as

the staff member unless the delay that would be caused by complying with this

requirement would result in imminent danger to human life or safety.

(7) If contraband

or evidence relating to an offence under subsection 31

(1) is found in a search under subsection (1) or paragraph (4)(a), the superintendent

of the correctional facility may authorize the further detention of the staff

member in order to obtain the services of the police.

(8) A staff member

detained under this

section shall

(

a) be informed promptly of the reasons for the

detention and of his or her right to retain and instruct counsel; and

(

b) be given a reasonable opportunity to retain

and instruct counsel.

Search of vehicles

30 .

(1) An authorized person may without

individualized suspicion conduct routine visual inspections or routine searches

of vehicles that are on the property of a correctional facility.

(2) If an

authorized person believes on reasonable grounds that a vehicle entering,

leaving or on the property of a correctional facility has been used, is about

to be used or is being used in the commission of an offence under subsection 31 (1), the authorized person may conduct a search of

the vehicle and its contents in accordance with the regulations.

Contraband and trespassing offences

31 .

(1) A

person commits an offence if at a correctional facility the person possesses,

delivers or sends to or receives from an inmate anything that is referred to in

the definition of "contraband" in

section 2 .

(2) A person

commits an offence if the person trespasses on the grounds or buildings of a correctional

facility.

(3) Every person

who commits an offence under this

section is liable, on

summary conviction, to

a fine of up to $2,000 or to imprisonment for a term of up to 6 months, or to both

a fine and imprisonment.

Illicit drug test

(1) An

authorized person may demand that

(

a) an offender submit to an illicit drug test, if

the authorized person believes on reasonable grounds that the offender has

taken an illicit drug into their body; or

(

b) an offender submit to an illicit drug test if

abstention from an illicit drug is a condition of a temporary absence, work program,

voluntary treatment program, probation, conditional release, conditional

sentence, an order under 810.1 or 810.2 of the Criminal Code or if the offender is under the supervision of a

probation officer in another circumstance that may be prescribed and an illicit

drug test is required to monitor compliance with the condition

(

i) at

regular intervals, or

(ii) at any

time, if the authorized person believes on reasonable grounds that the offender

has breached the condition.

(2) An authorized

person who makes a demand under this

section shall

(

a) first inform the offender of the basis of the

demand and the consequences of failure to comply with the demand; and

(

b) carry out the demand and administer the test

in accordance with the

regulations .

Power to seize and dispose of objects

or substances seized

(1) A

staff member may seize an object or substance if the staff member believes on

reasonable grounds that the object or substance is contraband or evidence

relating to an offence under subsection 31 (1).

(2) As soon as

practicable after an object or a substance is seized under subsection (1), the

staff member shall

(

a) make a record describing the object or

substance and the circumstances in which it was seized; and

(

b) deposit the object or substance in a secure

place at the correctional facility.

(3) The superintendent

shall return an object or substance seized under subsection (1) to its owner if

(

a) it is in the custody or control of the superintendent;

(

b) it is not contraband or evidence relating to

an offence under subsection 31 (1); and

(

c) there is no dispute about who owns it.

(4) If an object

or substance is seized from an inmate under subsection (1) and the object or

substance is contraband but its possession outside the correctional facility

would be lawful, the superintendent may direct that

(

a) the object or substance be kept in a secure

place at the facility and be returned to the inmate on their release from custody;

(

b) the inmate be given 30 days to make

arrangements for the disposal or safekeeping of the object or substance outside

the correctional facility; or

(

c) the object or substance be disposed of if

(

i) it is

of a perishable nature and subject to spoilage,

(ii) it

will deteriorate in value if kept,

(iii) its

custody involves unreasonable expense or inconvenience,

(iv) keeping

it is unsafe, or

(

v) it is

dangerous to life, health or property.

(5) An object or

substance seized under subsection (1) is forfeited to the Crown in accordance

with the regulations

(

a) within 30 days after being notified of its

seizure, the owner does not request its return;

(

b) the owner cannot be located and 3 months have

passed since the seizure;

(

c) the object or substance is determined to be

contraband in a hearing referred to in paragraph 48 (

r) and possession of it outside the correctional facility would be unlawful; or

(

d) in the case of an owner who is an inmate,

(

i) possession

of it by the inmate would constitute possession of contraband, and

(ii) the

inmate has not arranged for the disposal or safekeeping of the object or

substance outside the facility within 30 days after being given the opportunity

to do so in accordance with paragraph (4)(b).

Division 5

Absences, Employment and Remission

Temporary absences

(1) A superintendent of a correctional facility may authorize an

inmate to be absent from a correctional facility with or without escort,

subject to those conditions that the superintendent considers appropriate, if

in the superintendent's opinion the absence is necessary or desirable

(

a) for

medical, educational, employment or humanitarian reasons; or

(

b) to

assist in the inmate's rehabilitation or reintegration into the community.

(2) A temporary absence may be authorized for a

maximum period of 60 days and may be renewed by a superintendent for one or

more periods, each of a maximum of 60 days, on reassessment of the case.

(3) Notwithstanding subsection (2), a temporary

absence for medical reasons may be authorized for an unlimited period.

(4) Notwithstanding that an inmate has been

granted a temporary absence, during the period of the temporary absence the

inmate is subject to the rules, regulations and discipline of the correctional facility,

as applicable, and shall obey all instructions given to him or her by the

superintendent.

Suspension,

cancellation and revocation of temporary absence

(1) A superintendent may

suspend, cancel or revoke an inmate's temporary absence, before or after it

begins, if

(

a) a

breach of a condition of the absence has occurred or, in the superintendent's

opinion, the suspension, cancellation or revocation is necessary to prevent a

breach of a condition of the absence;

(

b) the

grounds for authorizing the absence have changed or no longer exist; or

(

c) based

on information that could not reasonably have been provided at the time the

absence was authorized, the application has been reassessed.

(2) If a superintendent suspends, cancels or

revokes an inmate's temporary absence, the superintendent may issue a warrant

or notice of suspension, cancellation or revocation for the apprehension and recommittal

of the inmate.

(3) A peace officer may arrest a person without a

warrant or notice and remand the person into custody if the peace officer

believes on reasonable grounds that a warrant or notice

(

a) has

been issued under subsection (2) in respect of that person; and

(

b) is

still in force.

(4) Unless the warrant or notice is produced

within 48 hours after an arrest is made under subsection (3), the inmate shall

be released and the provisions of the temporary absence shall remain valid.

Temporary absence

panel

(1) The

chief superintendent may establish a temporary absence panel consisting of up

to 3 persons.

(2) An inmate whose request for a temporary

absence is denied, or whose temporary absence has been suspended, cancelled or

revoked under

section 35 may appeal the denial,

suspension, cancellation or revocation to the chief superintendent.

(3) The chief superintendent may delegate his or

her determination in respect of an appeal under subsection (2) to a temporary absence

panel.

Work programs

37. Work

programs that are established under the regulations may be implemented and

administered by the superintendent in the correctional facility for which that superintendent

is responsible.

Earned remission

38. An

offender who is serving a sentence for civil contempt or for an offence under

an enactment may be credited with earned remission or may have his or her earned

remission forfeited, in accordance with the regulations.

Division 6

Inspection and investigations

Inspections

(1) The

minister shall provide for the inspection of each correctional facility or part

of a correctional facility on the periodic basis that the minister considers

necessary by a person appointed by the minister for that purpose.

(2) The minister or the person appointed to

conduct an inspection may

(

a) enter a correctional facility; and

(

b) access a part of the correctional facility.

(3) The minister or the person appointed to

conduct the inspection may examine a thing or a record in the correctional

facility.

(4) A record referred to in subsection (3) does

not include the medical record of an inmate unless the inmate consents to the

release of that record.

(5) The person appointed to conduct an inspection shall

report his or her findings in writing to the minister.

Investigations

(1) The

director may appoint a qualified employee of the division to investigate a

matter related to the administration of the Act.

(2) The employee appointed under subsection (1)

(

a) shall investigate a matter respecting the

administration of this Act on the written request of the director; and

(

b) shall report his or her findings under

paragraph (

a) in writing to the director and the chief superintendent or the

chief adult probation officer, as appropriate.

(3) The employee appointed under subsection (1)

may access

(

a) a correctional facility and an offender;

(

b) a staff member; and

(

c) a record under the custody and control of the

division relevant to the investigation.

Power to require

persons to answer questions and order disclosure

(1) For

the purpose of an investigation under

section 40

the employee appointed under that

section may make an order requiring a person

to do either or both of the following:

(

a) attend, in person or by electronic means, to

answer questions on oath or affirmation, or in another manner; and

(

b) produce a record or thing in the person's

possession or control.

(2) The employee appointed under

section 40 may apply to the Trial Division for an order

(

a) directing the person to comply with an order

made under subsection (1); or

(

b) directing a supervisor of a person to cause

the person to comply with an order made under subsection (1).

Contempt proceeding

for uncooperative person

42. The

failure or refusal of a person subject to an order under

section 41 to do

one or more of the following makes the person, on application to the Trial

Division by the director, liable to be committed for contempt as if in breach

of an order or judgment of a judge of the Trial Division:

(

a) attend before the employee appointed;

(

b) take an oath or make an affirmation;

(

c) answer questions; or

(

d) produce records or things in the person's

possession or control.

Response to the

director

(1) The

chief superintendent or the chief adult probation officer, as applicable, shall

respond to the report of the findings of the employee appointed under

section 40 and indicate the proposed action to be taken as a

result of the report.

(2) The response referred to in subsection

(1) shall be made in writing to the director within 90 days of receipt of the

report.

Offence of

obstructing inspections or investigations

(1) A

person shall not obstruct or impede or refuse to admit the minister or a person

conducting an inspection under

section 39 or a

person conducting an investigation under

section 40 .

(2) A person shall not aid or assist a person in

obstructing or impeding or refusing to admit the minister or a person

conducting an inspection under

section 39 or a

person conducting an investigation under

section 40 .

(3) A person who contravenes subsection (1) or

(2) commits an offence punishable on

summary conviction by a fine of up to $2,000

or to imprisonment for a term of up to 6 months or to both a fine and imprisonment.

PART IV

CONTINUITY OF CORRECTIONAL PROGRAMS AND SERVICES

Continuity of programs

and services

45. The

director shall coordinate and encourage wherever possible

(

a) the interrelated activities of correctional

facilities and community correctional programs that are concerned with offenders

at all stages of their sentences; and

(

b) both in the correctional facility and in the

community

(

i) programming and, where available, programming

that is evidence based, and

(ii) specific programming and services to

(

A) reflect the needs and culture of aboriginal

offenders,

(

B) provide for the particular needs of female

offenders, and

(

C) provide for the specific needs of offenders

with particular mental health and addictions requirements and other classes of

offenders that are identified by the director as having special requirements.

PART V

GENERAL

Statutory review

46. The

minister shall, every 5 years, conduct a review of this Act and the principles

on which it is based and consider areas which may be improved.

Jurisdiction of National Parole Board

47 . The National Parole Board is authorized to

exercise in the province the jurisdiction described in

section 108 of the Corrections and Conditional Release Act

( Canada ).

Regulations

48. The Lieutenant-Governor in Council may make

regulations

(

a) respecting the management, operation and

security of probation offices and correctional facilities;

(

b) prescribing the powers and duties of persons

employed in or about a correctional facility and the qualifications, powers and

duties of probation officers;

(

c) respecting limitations or conditions on the

admission of persons into custody at a correctional facility, the transfer of

inmates between facilities and the discharge of inmates;

(

d) establishing an inmate grievance procedure;

(

e) respecting the separate confinement or

segregation of inmates;

(

f) respecting the use of force on inmates;

(

g) respecting searches under sections 27 to 29 , including strip

searches;

(

h) respecting searches under

section 30 ;

(

i) designating substances as illicit drugs;

(

j) specifying the manner in which a demand that

an inmate submit to an illicit drug test be made and the manner in which the

illicit drug test be taken;

(

k) with respect to visits to inmates in

correctional facilities and the conduct of visitors while in a correctional

facility;

(

l) respecting the disposal of

(

i) unclaimed property abandoned by an inmate at a

correctional facility, including providing for the forfeiture of the property

to the Crown, and

(ii) property seized under

section 33 ;

(

m) respecting the diet, clothing, maintenance,

accommodation, employment and training of inmates;

(

n) respecting the rights of inmates within the

correctional facility;

(

o) establishing rules governing the conduct of

inmates in a correctional facility, which may vary between correctional facilities;

(

p) providing that an inmate's breach of a rule is

a matter in respect of which the inmate may be disciplined;

(

q) establishing and providing for an informal

resolution process that may be employed in relation to breaches of rules;

(

r) respecting hearings in relation to an alleged

breach of the rules, including the practices and procedures for the hearings;

(

s) establishing and providing for a range of

penalties for breaches of rules and specifying criteria to be applied by a

person presiding over a disciplinary hearing in imposing a penalty from the

range of penalties established;

(

t) providing a process specifically for

dispositions of fines for inmate offences involving property damage;

(

u) establishing a process for review of a

decision made in a disciplinary hearing, and the powers and duties of a person

conducting the review;

(

v) respecting the restriction, interception,

monitoring or recording of inmate communication;

(

w) providing for the handling, retention and

disposal of inmate communication that is intercepted or recorded;

(

x) specifying communications between an inmate

and another person that are privileged;

(

y) respecting procedures that an authorized

person shall follow, and specifying criteria that an authorized person shall

apply, to examine inmate communication and determine whether it is privileged

communication;

(

z) governing inmates who are authorized to be

absent from a correctional facility;

(aa) respecting persons whom the probation officer

is responsible to supervise;

(bb) governing the establishment of work programs

and the organization, operation, management and administration of them;

(cc) specifying circumstances and criteria for

(

i) crediting earned remission,

(ii) failing to earn remission, and

(iii) forfeiting earned remission;

(dd) respecting the inspection of correctional

facilities;

(ee) respecting the manner of making requests for

disclosure of information under

section 14 and

respecting procedures to be followed in dealing with those requests;

(ff) prescribing those matters that by this Act may

be prescribed;

(gg) defining words or expressions used but not

defined in this Act;

and

(hh) generally, to give effect to the purpose of

this Act.

PART VI

TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS, REPEAL AND COMMENCEMENT

Transitional provisions

49 .

(1) A prisoner who is temporarily absent

under the authority of

section 25 of the Prisons

Act on the day this Act comes into force, is considered to be authorized to

be temporarily absent under

section 34 of this Act

period of time specified in the temporary absence unless varied under the provisions

of this Act.

(2) Where a member of the staff as defined in

paragraph 2(

e) of the Prisons Act is

charged with an offence under subsection 10(1) of that Act or a person who is

not a member of the staff is charged with an offence under subsection 10(2) of

that Act, or an officer is charged with a breach of the Prisons Regulations , and the offence has not been disposed of at

the time of the coming into force of this Act, the offence shall be dealt with

under the Prisons Act and the Prisons Regulations notwithstanding the

repeal of that Act and those regulations.

(3) Notwithstanding the repeal of the Prisons Act and the Prisons Regulations , a disciplinary panel may be appointed under that

Act and those regulations to deal with charges referred to in subsection

(2) that have not been disposed of before the coming into force of this Act.

Consequential

amendments

(1) Section 26, Rule VII of the Elections Act, 1991 is amended by

striking out the words "provincial jail" and substituting the words

"correctional facility in the province".

(2) Subsection 86(2) of the Elections Act, 1991 is amended by striking out the word "jail"

and substituting the words "correctional facility".

(3) Section 7 of the Fatalities Investigations Act is amended by striking out the word "institution"

wherever it appears and substituting the word "facility".

(4) Paragraph 5(

k) of the Jury Act, 1991 is amended by striking out the word

"institution" and substituting the word "facility".

(5) Paragraph 78(1)(

a) of the Mental Health Care and Treatment Act is repealed and the following

substituted:

(

a) correctional facility as defined in the Correctional Services Act ; or

(6) Subsection 78(2) of the Mental Health Care and Treatment Act is amended by striking out the

word "institution' and substituting the word "facility".

(7) Paragraph 78(3)(

a) of the Mental Health Care and Treatment Act is amended by striking out the

word "institution' and substituting the word "facility".

(8) Paragraph 40(2)(

b) of the Personal Health Information Act is amended by striking out the

reference to the " Prisons Act "

and substituting a reference to the " Correctional

Services Act ".

(9) Paragraph 4(1)(

k) of the Public Service Commission Act is repealed and the following

substituted:

(

k) the chief superintendent, a superintendent of

a correctional facility, within the meaning of the Correctional Services Act, and correctional officers and

non-commissioned officers employed under subsection 6(4) of the Correctional Services Act;

(10) Section 2 of the Uniformed Services Pension Act, 1991 is amended by adding

immediately after paragraph (b.2) the following:

(b.3) "correctional facility" means a

correctional facility as defined in the Correctional

Services Act ;

(11) Subparagraph 2(c)(ii) of the Uniformed Services Pension Act, 1991 is

repealed and the following substituted:

(ii) the chief superintendent, the superintendent

of a correctional facility and every commissioned and correctional officer of a

correctional facility.

(12) Paragraph 2(

h) of the Uniformed Services Pension Act, 1991 is repealed.

(13) Subsection 36(1) of the Uniformed Services Pension Act, 1991 is amended by striking out the

reference to the "Prisons Act"

and substituting a reference to the " Correctional

Services Act ".

Repeal

51. The following Acts and regulations are

repealed:

(

a) Adult

Corrections Act ;

(

b) Prisons

Act ;

(

c) Corner Brook

Lockup Order , Consolidated Newfoundland

and Labrador Regulation 786/96; and

(

d) Prisons Regulations,

Consolidated Newfoundland and Labrador Regulation 993/96.

Commencement

52. This Act or a Part,

section or subsection,

paragraph or subparagraph of this Act comes into force on a day or days to be

proclaimed by the Lieutenant-Governor in Council.

William E. Parsons, Queen's Printer