Source: http://www.scc-csc.ca/WebDocuments-DocumentsWeb/34609/FM050_Intervener_Canadian-Civil-Liberties-Association_.pdf

Court File No. 34897

IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA)

B E T W E E N:

DIANE KNOPF, WARDEN OF MISSION INSTITUTION, ET AL.

Appellants

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GURKIRPAL SINGH KHELA

Respondent

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THE CANADIAN CIVIL LIBERTIES ASSOCIATION, THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, THE CANADIAN ASSOCIATION OF ELIZABETH FRY SOCIETIES and THE JOHN HOWARD SOCIETY OF CANADA

Interveners

FACTUM OF THE INTERVENER, the CANADIAN CIVIL LIBERTIES ASSOCIATION

Gowling Lafleur Henderson LLP
Barristers and Solicitors
160 Elgin Street, Suite 2600
Ottawa, ON K1P 1C3
 
D. Lynne Watt
Tel: (613) 786-8695
Fax: (613) 788-3509
lynne.watt@gowlings.com
 

Matthew S. Estabrooks
Tel: (613) 786-0211
Fax: (613) 788-3573
matthew.estabrooks@gowlings.com
 
Counsel for the Intervener,
The Canadian Civil Liberties Association
 

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PART 1- OVERVIEW AND BRIEF STATEMENT OF FACTS

1.  The writ of habeas corpus is the “Great Writ of Liberty,” which, since as early as 1215, has been used to uphold the rule of law by requiring that deprivations of individual liberty are [sicl "be"] lawful and invalidating those that are unlawful.

2.  Over time, the writ became a powerful and flexible defence against arbitrary detention throughout England and the common-law world. Today, the right to habeas corpus is a prominent feature in international constitutional law. Canada has chosen to enshrine the right to habeas corpus in the Canadian Charier of Rights and Freedoms.

3.  Since the advent of the Charter, this Court has progressively expanded the role of habeas corpus as a Charter remedy, a trend that has kept the writ in step with other advancements in judicial review. In each iteration, this Court has chosen to frame habeas corpus as a broad and flexible remedy, nourished by the central remedial concept of the Charter: that Canadian courts are equipped to offer flexible, responsive and direct remedies to infringements of individual civil rights.

4.  The Appellant in this case argues for a narrowing of the habeas corpus remedy in the case of involuntary prisoner transfers. The CCLA disagrees.

5.  The CCLA submits that, as a Charter remedy, habeas corpus ought to be broad, flexible and responsive.

6.  The key question in a habeas corpus inquiry is whether the deprivation of liberty is lawful. This inquiry is, by necessity, highly fact-specific and responsive to the circumstances of the individual applicant. As such, the particular facts surrounding the deprivation of liberty are of utmost importance.

7.  For a deprivation of liberty be lawful, it must be procedurally fair. Failure to disclose adequate information to the subject of detention denies the detainee procedural fairness. Unless the detaining party can justify the withholding of information and
 

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prove how this justification outweighs the detainee’s right to know the case against him, the detention is unlawful.
 

FACTS

8.  The CCLA adopts the statement of facts as set out in Part I of the Respondent’s factum.
 

PART II – ISSUES

9.  Habeas corpus is a Charter remedy; as such, it ought to be broad, flexible and responsive to the particular situation of the individual seeking it.

10.  Involuntary prisoner transfers that result in a deprivation of residual liberty will be unlawful if the prisoner is not provided with all the information that was before the decision-maker; the decision-maker bears the onus of showing that any restriction in disclosure is warranted.
 

PART III – ARGUMENT

11.  The submissions of the CCLA will focus on two key points: the importance of seating habeas corpus squarely within the Charter as a remedy that ought to be construed as broadly as possible and the proper approach to assessing the sufficiency of disclosure in involuntary prisoner transfers.

Habeas Corpus is a Charter remedy

12.  Since its introduction in early English law, the writ of habeas corpus has spread throughout the world’s legal systems and is incorporated in a significant number of modern national constitutions. Brian Farrell, “From Westminster to the World: The Right to Habeas Corpus in International Constitutional Law” (2008-09) 17:3 Michigan state Journal of International Law, 551 at 563-564.

13.  Canada is no exception. The right to the remedy of habeas corpus is guaranteed in section 10 of the Charter, which provides:

10.  Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;
 

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(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

– Canadian Charter of Rights and Freedoms, s 10.

14.  Section 24(1) of the Charter provides a remedy for any breaches of the rights it guarantees. Section 24(1) provides as follows:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Canadian Charter of Rights and Freedoms, s 24(1).

15.  This section confers a broad discretion on a reviewing Court to craft an appropriate, responsive remedy. In Canada (Attorney General) v. PHS Community Services Society, this Court emphasized the breadth and flexibility of the remedial power conferred by s. 24(1) as follows:

Section 24(1) confers a broad discretion on the Court to craft an appropriate remedy that is responsive to the violation of the respondents’ Charter rights. As the Court said in Dunedin:

Section 24(1)’s interpretation necessarily resonates across all Charter rights, since a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach. From the outset, this Court has characterized the purpose of s. 24(1) as the provision of a “direct remedy” (Mills [v. The Queen, [1986] 1 S.C.R. 863], p. 953, per Mcintyre J.). As Lamer J. stated in Mills, “[a] remedy must be easily available and constitutional rights should not be ‘smothered in procedural delays and difficulties’” (p. 882). Anything less would undermine the role of s. 24(1) as a cornerstone upon which the rights and freedoms guaranteed by the Charter are founded, and a critical means by which they are realized and preserved. [Emphasis in original; para. 20.] Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] 3SCR 134.

16.  In order to understand how habeas corpus can be applied as a “direct remedy” under s. 24(1), reference must be made to the writ’s historical underpinnings.
 

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Habeas corpus is functional, pragmatic and flexible

17.  Throughout its history, the writ of habeas corpus has been a remedy that relied on function over form. A petition for a writ of habeas corpus is a demand – however denominated – challenging the legal basis of a detention and calling upon the custodian to justify it.

Eric M. Freedman, “Dimension I: Habeas Corpus as a Common Law Writ” (Summer 2011) 46:2 Harvard Civil Rights-Civil Liberties Law Review 592 at 594.

18.  In keeping with the flexible, functional nature of the writ, judicial decisions correcting unlawful detentions pursuant to habeas corpus are marked by a strong impetus towards speedy and pragmatic resolutions based on case-specific facts as revealed by direct investigation.

Eric M. Freedman, “Dimension I: Habeas Corpus as a Common Law Writ” (Summer 2011) 46:2 Harvard Civil Rights-Civil Liberties Law Review 592 at 595.

19.  The judges crafting these responsive remedies to habeas corpus petitions were motivated by the urgency of the possibility that a person might be imprisoned contrary to the bedrock principle of the King’s justice that his servants infringe no one’s liberty unwarrantably.

Eric M. Freedman, “Dimension I: Habeas Corpus as a Common Law Writ” (Summer 2011) 46:2 Harvard Civil Rights-Civil Liberties Law Review 592 at 596.

20.  Habeas corpus is a two-part right:  it guarantees both the right to challenge the legality of a detention and the right to be released if that detention is found to be unlawful. For a court to provide habeas corpus as an effective direct remedy to unlawful detention, the inquiry into the lawfulness of a detention must be pragmatic and fact-based, focusing on the particulars of the detention at issue. Upon a finding that the detention is unlawful, the court must have jurisdiction to craft a flexible and responsive remedy that is effective at providing relief from the unlawful detention.

21.  The modern, post-Charter jurisprudence of this Court reveals an increasingly broad, flexible and responsive approach to habeas corpus remedies under s. 24(1). This Court has rejected attempts by the government to restrict the scope of
 

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the remedy in Canada. In cases involving prison discipline and detention within the correctional system, the trend of this Court has been to expand the availability, breadth and flexibility of the habeas corpus remedy over time.

22.  In the Miller, Cardinal and Morin trilogy, the Court expanded the scope of habeas corpus by making the writ available to free inmates from restrictive forms of custody within an institution, without releasing the inmate.

R v Miller, [1985]2 SCR 613.
Cardinal v Director of Kent Institution, [1985] 2 SCR 643.
Morin v National Special Handling Unit Review Committee, [1985] 2 SCR 662.

23.  In May v. Ferndale Institution, the Court confirmed that superior courts have jurisdiction, pursuant to the Charter, to grant habeas corpus relief. The Court in May emphasized that, in contrast to relief pursuant to an application for judicial review, habeas corpus is locally accessible and is issued as of right where the applicant shows that there is cause to doubt the legality of his detention. The onus is on the respondent to justify the lawfulness of the detention.

May v Ferndale Institution, 2005 SCC 82 at paras 70-71, [2005] 3 SCR 809.

24.  The decision of Wilson J. in R. v. Gamble discusses in detail the place of habeas corpus within the Charter. Wilson J. describes the remedial jurisdiction of superior courts as “constant” and “complete”:

The superior courts of our country have always demonstrated the greatest of flexibility as regards procedure, acknowledging that it is there to guarantee rights and not to hinder them.

R v Gamble, [1988] 2 SCR 595 at 633.

25.  Where an ongoing and continuing violation of a Charter right is alleged and the superior court is being asked to exercise its traditional function to determine the legality of a deprivation of liberty, the court is constitutionally mandated to provide prompt and effective enforcement of Charter rights. Relief in the form of habeas corpus should not be withheld for reasons of mere convenience.

R v Gamble, [1988] 2 SCR 595 at 634-5.
 

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26.  Courts should not be bound to limited categories or definitions of jurisdictional review when the liberty of the applicant is at stake. Where habeas corpus is sought as a Charter remedy, distinctions which have become uncertain, technical, artificial and non-purposive should be rejected.

R v Gamble, [1988)2 SCR 595 at 640.

27.  The guidance of the Court in Miller, Cardinal and Morin requires a creative and flexible approach that adapts the traditional remedy of habeas corpus to its new role as a Charter remedy pursuant to s. 24(1):

A purposive approach should, in my view, be applied to the administration of Charter remedies as well as to the interpretation of Charter rights and, in particular, should be adopted when habeas corpus is the requested remedy since that remedy has traditionally been used and is admirably suited to the protection of the citizen's fundamental right to liberty and the right not to be deprived of it except in accordance with the principles of fundamental justice.

R v Gamble, [1988)2 SCR 595 at 641.

28.  The role of habeas corpus as a remedy under s. 24(1) of the Charter reinforces both the historical emphasis of the writ as a flexible and responsive remedy to all forms of unlawful detention as well as the constitutional requirement that remedies for breaches of fundamental rights be easily accessible and direct.

Conclusion on Habeas Corpus

29.  A court -- including this Court -- having assumed jurisdiction over the subject matter and the person on an application for habeas corpus, can exercise its broad discretion under s. 24(1) of the Charter to order any remedy within its jurisdiction which it considers appropriate and just in the circumstances.

R v Gamble, [1988) 2 SCR 595 at 640.

30.  The remedial aim of habeas corpus is to secure for the applicant a release form the unlawful detention at issue.
 

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31.  The CCLA submits that the historical common law writ, the constitutional guarantee in s. 24(1) of the Charterand the jurisprudence of this Court require that the remedy of habeas corpus be broad, flexible, pragmatic, responsive and direct.
 

Complete Disclosure is Required

32.  The remedy of habeas corpus involves an inquiry into whether a deprivation of liberty is lawful. For a deprivation of liberty to be lawful, it must have been arrived at after a fair process.

33.  Just as habeas corpus aims to ensure that the rule of law is upheld in the state's detention of its citizens, procedural rights enhance the rule of law.

Guy Regimbald, Canadian Administrative Law, 1st ed (Markham, Ont: Lexis-Nexis, 2008) at 217.

34.  Those subject to administrative action have a right to know the case against them and have a meaningful opportunity to answer the case before the decision-maker renders its decision. The requirement of adequate disclosure is inherently linked to the right to a fair hearing. A fair hearing requires that the affected person [sic] be informed of the case against him or her and be permitted to respond to that case.

Baker v Canada (Minister of Citizenship and Immigration), [1999]2 SCR 817.
Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at para 53, [2007] 1 SCR 350.

1.  The content and extent of disclosure required to render a process fair is determined by the nature of the process and the statutory grant to the administrative decision-maker.

Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.

36.  The CCLA submits that, in the case of involuntary prisoner transfers under the Corrections and Conditional Release Act, RSC 1992, c 20 (CCRA), these factors create a requirement that the decision-maker disclose the entire record that was before him or her. The decision-maker may provide disclosure that is less than complete only if he or she can show that there are other fundamental interests at
 

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stake that outweigh the prisoner’s right to know the case against him and that the disclosure remains as broad as possible in the circumstances.

37.  The nature of the process in an involuntary prisoner transfer is one that has a profound effect on the prisoner’s residual liberty interest, a constitutionally-protected right. The duty to disclose is greater where the decision-making process operates in a judicial fashion and may seriously affect the individual.

Guy Regimbald, Canadian Administrative Law, 1st ed (Markham, Ont: Lexis-Nexis, 2008) at 260.

Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9, [2007]1 SCR 350.

38.  In this case, the statutory disclosure requirements are thorough and onerous. Section 27(1) of the CCRA requires the institution to disclose “all the information to be considered in the taking of the decision or a summary of that information.”

39.  The CCLA submits that, in cases where a prisoner’s s. 7 liberty interest is in jeopardy, a prisoner is presumptively entitled to all the information that was present before the decision-maker. A summary of the information may be justifiably necessary in some circumstances. In such cases, the summary must be as detailed and accurate as possible and the decision-maker must explain why the information has been produced in a summary form.

May v Ferndale Institution, 2005 SCC 82 at para 117, [2005]3 SCR 809.

40.  The option to provide a summary is not a discretionary reduction in the requirement for complete disclosure.

41.  On an application for habeas corpus, inadequate disclosure renders the detention process unfair, which, in turn, renders the detention itself unlawful. This triggers the court’s broad discretion to provide a remedy that responds to the underlying rights violation by, at a minimum, restoring the applicant’s liberty.

May v Ferndale Institution, 2005 SCC 82, [2005] 3 SCR 809.
 

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42.  The CCLA recognizes that there may be situations where, pursuant to s. 27(3), the decision-maker may withhold information. However, the CCLA submits that this ability is subject to two important statutory restrictions.

43.  Pursuant to s. 27(3) where the decision-maker withholds information, she must have reasonable grounds to believe that the disclosure will jeopardize one of three enumerated interests: (a) the safety of any person, (b) the security of a penitentiary, or (c) the conduct of any lawful investigation.
 

Corrections and Conditional Release Act, RSC 1992, c 20, s 27(3).

44.  Moreover, where full disclosure is substituted with a summary, the decision-maker must indicate what information has been summarized rather than produced as well as the justifiable reason for the omission or abridgement. The CCLA agrees with the Court of Appeal below that the Appellant’s failure to adduce any evidence of the reasonable grounds she relied upon in invoking subsection 3 is fatal to her claim that restricted disclosure was warranted in the circumstances.

Appeal decision, Appellant’s Record, Tab 4 at paras 50-52.

45.  Once the decision-maker has invoked subsection 3 and provided evidence of the reasonable grounds he has to believe that one of the enumerated interests is in jeopardy, he must then ensure that the information withheld is only that which is “strictly necessary” to protect the interest identified in the first step.

Corrections and Conditional Release Act, RSC 1992, c 20, s 27(3).

46.  Where the decision-maker invokes subsection 3, he or she bears the onus of demonstrating that disclosure requirements of the subsection are complied with:

The burden is always on the authorities to demonstrate that they have withheld only such information as is strictly necessary for that purpose. A blanket claim, such as is made here, that “all preventive security information” is “confidential and (cannot) be released”, quite apart from its inherent improbability, is simply too broad to be accepted by a court charged with the duty of protecting the subject’s right to fair treatment.

Demaria v Regional Classification Board, [198711 FC 74 at 77 and 78, (FCA).
 

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Conclusion on Disclosure Obligations

47.  The CCLA submits that, in cases where a prisoner's residual liberty is at stake, s. 27(1) ought to be interpreted strictly to require the decision-maker to disclose all the information that was before him or her. Providing a summary of the information can frequently result in relevant information being obscured or omitted.

Accordingly, the option to provide a summary must be used sparingly and its use must be justified.

48.  In addition, where the decision-maker withholds disclosure, he must identify the interest which he has reasonable grounds to believe to be in jeopardy if full disclosure were provided. The decision-maker must then provide enough information for the subject of the decision to evaluate the reasonableness of that belief.

49.  Moreover, the decision-maker must satisfy the subject of the detention decision that the information withheld was strictly necessary to protect the interest identified.
 

PART IV - SUBMISSION ON COSTS

50.  The CCLA does not seek costs, and requests that no costs be awarded against it.
 

PART V - ORDER SOUGHT

51.  The CCLA requests that the case be decided in line with the above principles. The CCLA requests permission to address the Court orally at the hearing of this appeal.

ALL OF WHICH IS RESPECFULLY SUBMITIED July 17, 2013

per _________________________  _________________________
D. Lynne Watt                Matthew S. Estabrooks
Counsel for the Intervener Canadian Civil Liberties Association
 

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PART VI - TABLE OF AUTHORITIES

'Factl.lm

:J;iif'8:: '. '

Baker v Canada (Minister of Citizenship and Immigration), [1999]2 SCR 817. 34, 35

Canada (Attorney General) v PHS Community Services Society, 2011 SCC 15 44, [2011]3 SCR 134.

Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9, [2007]1 34,37 SCR 350.

Demaria v Regional Classification Board, [1987]1 FC 74 at 77 and 78 (FCA). 46

May v Ferndale Institution, 2005 SCC 82, [2005]3 SCR 809. 23,39,41

Morin v National Special Handling Unit Review Committee, [1985] 2 SCR 22 662.

R v Gamble, [1988]2 SCR 595. 24, 25, 26, 27, 29

R v Miller, [1985]2 SCR 613. 22

Factum

Para..

Brian Farrell, “From Westminster to the World: The Right to Habeas Corpus 12 in International Constitutional Law” (2008-09) 17:3 Michigan State Journal of International Law 551.

Eric M. Freedman, “Dimension I: Habeas Corpus as a Common Law Writ” 17, 18, 19 (Summer 2011) 46:2 Harvard Civil Rights-Civil Liberties Law Review 592.

Guy Regimbald, Canadian Administrative Law, 1st ed (Markham, Ont: 33, 37 Lexis-Nexis, 2008).

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PART VII- STATUTORY PROVISIONS

1. Corrections and Conditional Release Act, SC 1992, c 20, S 27

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CANADA
CONSOLIDATION CODIFICATION
Corrections and Loi sur Ie systeme
Conditional Release Act correctionnel et la mise en liberte sous condition

S.C. 1992, c. 20 L.C. 1992, ch. 20
Current to June 25, 2013 Ajour au 25 juin 2013
Last amended on March 27, 2013 Derniere modification Ie 27 mars 2013
Published by the Minister of Justice at the following address: Publie par Ie ministre de la Justice it I’adresse suivante :

http://Iaws-Iois.j usti ce .gc.ca http://iois-Iaws.justice.gc.ca

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Corrections and Conditional Release – June 25, 2013

(b) that a complaint was made to the police b) qu’une plainte a ete deposee aupres de la or the Crown attorney, or an infonnation was police ou du procureur de la Couronne, ou laid under the Criminal Code, in respect of que cette conduite a fait I’objet d’une denon- that act. ciation conformement au Code criminel.

Idem (4) Subsection (2) also applies, with such (4) Le paragraphe (2) s’applique, avec les Idem

modifications as the circumstances require, to a adaptations necessaires, dans Ie cas d’ une per-

person who satisfies the Commissioner sonne qui convainc Ie commissaire :

(a) that harm was done to the person, or the a) qu’elle a subi un dommage corporel ou

person suffered physical or emotional dam- moral par suite de la conduite d’une per-

age, as a result of an act of a person referred sonne visee au paragraphe (2), qU’elle ait ete

to in subsection (2), whether or not the per- ou non poursuivie ou condamnee pour celle-

son referred to in subsection (2) was prose- ci;

cuted or convicted for that act; and

b) qu’une plainte a ete deposee aupres de la

(b) that a complaint was made to the police police ou du procureur de la Couronne, ou

or the Crown attorney, or an infonnation was que cette conduite a fait I’objet d’une denon-

laid under the Criminal Code, in respect of ciation conformement au Code criminel.

that act. 1992, ch. 20, art. 26; 2012, ch. I, art. 57.

1992, c. 20, s. 26; 2012, c. I, s. 57.

Infonnalion 10 27_ (I) Where an offender is entitled by this 27. (I) Sous reserve du paragraphe (3), la Communication

be given 10 Part or the regulations to make representations personne ou l’organisme charge de rendre, au de renseigne-

offenders menls au

in relation to a decision to be taken by the Ser- nom du Service, une decision au sujet d’un de- d6linquant

vice about the offender, the person or body that linquant doit, lorsque celui-ci a Ie droit en vertu

is to take the decision shall, subject to subsec- de la presente partie ou des reglements de pre-

tion (3), give, the offender, a reasonable period senter des observations, lui communiquer, dans

before the decision is to be taken, all the infor- un delai raisonnable avant la prise de decision,

mation to be considered in the taking of the de- tous les renseignements entrant en ligne de

cision or a summary ofthat information. compte dans celle-ci, ou un sommaire de ceux-

ci.

Idem (2) Where an offender is entitled by this Part (2) Sous reserve du paragraphe (3), cette Idem

or the regulations to be given reasons for a de- personne ou cet organisme doit, des que sa de-

cision taken by the Service about the offender, cision est rendue, faire connaitre au deIinquant

the person or body that takes the decision shall, qui y a droit au titre de la presente partie ou des

subject to subsection (3), give the offender, reglements les renseignements pris en compte

forthwith after the decision is taken, all the in- dans la decision, ou un sommaire de ceux-ci.

formation that was considered in the taking of

the decision or a summary of that infonnation.

Exeeptions (3) Except in relation to decisions on disci- (3) Sauf dans Ie cas des infractions discipli- Exception

plinary offences, where the Commissioner has naires, Ie commissaire peut autoriser, dans Ia

reasonable grounds to believe that disclosure of mesure jugee strictement necessaire toutefois,

information under subsection (I) or (2) would Ie refus de communiquer des renseignements

jeopardize au delinquant s’il a des motifs raisonnables de

(a) the safety of any person, croire que cette communication mettrait en

danger la securite d’une personne ou du peni-

(b) the security of a penitentiary, or tencier ou compromettrait la tenue d’une en-

(c) the conduct of any lawful investigation, quete licite.

the Commissioner may authorize the withhold-

ing from the offender of as much information

as is strictly necessary in order to protect the in-

terest identified in paragraph (a), (b) or (c).

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Systeme correctionnel et mise en Iiberte sous condition – 25juin 2013

Right to (4) An offender who does not have an ade- (4) Le delinquant qui ne comprend de fayon Droit a

interpreter quate understanding of at least one of Canada’s satisfaisante aucune des deux langues offi~ I’interprele

official languages is entitled to the assistance of cielles du Canada a droit it I’assistance d’un in~

an interpreter terprete pour toute audition prevue it la presente

(a) at any hearing provided for by this Part partie ou par ses r”glements d’application et

pour la comprehension des documents qui lui

or the regulations; and

sont communiques en vertu du present article.

(b) for the purposes of understanding mate- 1992, ch. 20, art. 27; 1995, ch. 42, art. lO(F).

rials provided to the offender pursuant to this

section.

1992, c. 20, s. 27; 1995, c. 42, s. 10(F).

PLACEMENT AND TRANSFER OF INMATES INCARCERATION ET TRANSFEREMENT DES DETENUS

Criteria for 28, If a person is or is to be confined in a 28. Le Service doit s’assurer, dans la mesure Incarceration:

selection of penitentiary, the Service shall take all reason- du possible, que Ie penitencier dans lequel est facteurs a

penitentiary prendre en

able steps to ensure that the penitentiary in incarcere Ie detenu constitue un milieu au compte

which they are confined is one that provides seules existent les restrictions necessaires,

them with an environment that contains only compte tenu des elements suivants :

the necessary restrictions, taking into account

a) Ie degre de garde et de surveillance ne-

(a) the degree and kind of custody and con- cessaire it la securite du public, it celie du pe~

trol necessary for nitencier, des personnes qui s’y trouvent et

du detenu;

(i) the safety of the public,

(ii) the safety ofthat person and other per- b) la facilitc! d’acces it la collectivite it la-

quelle iI appartient, it sa famille et it un mi-

sons in the penitentiary, and

lieu culturel et Iinguistique compatible;

(iii) the security ofthe penitentiary;

c) I’existence de programmes et services qui

(b) accessibility to lui conviennent et sa volonte d’y participer.

(i) the person’s home community and 1992, ch. 20, art. 28; 2012, ch. 1, art. 58.

family,

(ii) a compatible cultural environment,

and

(iii) a compatible linguistic environment;

and

(c) the availability of appropriate programs

and services and the person’s willingness to

participate in those programs.

1992, c. 20, s. 28; 2012, c. I, s. 58.

Transfers 29. The Commissioner may authorize the 29. Le commissaire peut autoriser Ie transfe” TranstCrements

transfer of a person who is sentenced, trans~ rement d’une personne condamnee ou transfe”

ferred or committed to a penitentiary to ree au penitencier, soit it un autre penitencier,

conformement aux reglements pris en vertu de

(a) another penitentiary in accordance with

I’atinea 96d), mais sous reserve de Particle 28,

the regulations made under paragraph 96(d),

soit it un etablissement correctionnel provincial

subject to section 28; or

ou un hopital dans Ie cadre d’un accord concIu

(b) a provincial correctional facility or hos- au titre du paragraphe 16(1), conformement aux

pital in accordance with an agreement en~ reglements applicables.

tered into under paragraph 16(1)(a) and any 1992, ch. 20, art. 29; 1995, ch. 42, art. 11.

applicable regulations.

1992, c. 20, s. 29; 1995, c. 42, s. 11.

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