Throughout the Committee’s review, witnesses highlighted the specific challenges facing Canada with regard to the delivery of mental health and addiction services in correctional settings stemming from the constitutional distribution of legislative powers between the federal, provincial and territorial governments in the correctional and health fields. This chapter contains a brief discussion of the separation of powers in those fields.

2.1       CORRECTIONS

Under the Constitution Act, 1867, responsibility for correctional services is divided in Canada between the federal government and the provincial and territorial governments, on the basis of the sentences imposed by the courts. Adult offenders sentenced to prison terms of two years or more come under federal jurisdiction, while those serving terms of less than two years are under provincial or territorial government jurisdiction.[8]

CSC is the federal agency responsible for administering prison terms of two years or more. It reports to the Department of Public Safety, and is governed by the Corrections and Conditional Release Act (CCRA).[9] It is responsible for managing federal correctional institutions, for the care and custody of offenders, for their preparation for gradual reintegration into the community and for the supervision of offenders on conditional release. It is thus responsible for offenders from sentencing to completion of their terms. It is also responsible for post-sentence supervision of offenders subject to long term supervision orders.

In contrast, all offenders sentenced to terms of imprisonment in Norway, England and Wales fall under the jurisdiction of a central administration. This is an important distinction since the Committee’s study focused solely on offenders under federal responsibility. Some facilities visited in Norway and England housed offenders sentenced to very short prison terms, of less than one month in certain cases. The Committee learned that very short sentences pose specific challenges for the correctional administrations of those countries, particularly for the delivery of mental health care in prison and in the community. For example, the Committee learned that the correctional administration in England and Wales does not have supervisory powers over adults sentenced to terms of less than one year when they are released before the end of their term.

In Canada, only federal inmates released upon the expiry of their prison sentence are not subject to supervision in the community. The vast majority of offenders are released gradually into the community under CSC supervision before the expiration of their sentence. Research has shown that this is the surest way of monitoring the risk of recidivism and thus ensuring public safety.

2.2       HEALTH CARE

The Constitution Act of 1867 also dictates the distribution of legislative powers among the federal, provincial and territorial governments with respect to health. Within Canada’s healthcare system, the provinces and territories have the most significant responsibilities in the delivery of healthcare services. They are responsible for mental health legislation, and for the establishment, maintenance and administration of psychiatric hospitals. Thus, each province and territory has its own mental health act.[10]

The federal government is responsible for assisting in the funding of provincial and territorial healthcare services through fiscal transfers, administering health system standards under the Canada Health Act (CHA), and providing healthcare services to specific groups within the Canadian population,[11] including penitentiary inmates, within the meaning of Part I of the CCRA.[12]

Federal inmates are thus excluded under section 2 of the CHA. As a result, their medical care is covered neither by Health Canada, nor by the healthcare system of the province in which they are located. Under the CCRA, the delivery of health care to offenders in federal institutions is a CSC responsibility. To ensure continuity of care when offenders are released into the community, CSC is also required to ensure that an offender has a health insurance card upon release, and an adequate supply of medication for any physical problem and/or mental health disorder.[13]

The nature of CSC’s obligations with respect to health care within its institutions is set out in sections 85 to 89 of the CCRA, according to which every inmate is to receive essential health care, such as medical care, dental care as well as active and continuing mental health care. CSC is also required to provide every inmate with reasonable access to non-essential mental health care that will contribute to the inmate’s rehabilitation and successful reintegration into the community. Health care for inmates is to be provided by registered healthcare professionals, in accordance with professionally recognized standards.

CSC is also responsible for providing programs and services designed to address the factors that may have led offenders to commit the crime for which they were sentenced. Under sections 3, 5 and 76 of the CCRA, CSC is to provide a range of correctional programs designed to address the needs of offenders, help them to change their behaviour, and contribute to their rehabilitation.

The administration and delivery of healthcare services presents significant challenges for CSC both in the institutional and in the community setting. It should be noted that under the CCRA, the administration of treatment is subject to the voluntary, informed consent of the inmate, who may refuse or terminate it. When an offender is unable to give informed consent, provincial mental health legislation applies.