O. Reg. 190/23: GENERAL

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ontario regulation 190/23

made under the

Ministry of Correctional Services Act

Made: June 22, 2023
Filed: July 12, 2023
Published on e-Laws: July 12, 2023
Published in The Ontario Gazette: July 29, 2023

Amending Reg. 778 of R.R.O. 1990

(GENERAL)

1. (1) Section 1 of Regulation 778 of the Revised Regulations of Ontario, 1990 is amended by adding the following definition:

“strip search” means an inspection that is not conducted as part of a medical examination or treatment of the body after all clothing has been removed and of any clothing or other personal possessions that the person was required to remove; (“fouille à nu”)

(2) The definition of “strip search” in section 1 of the Regulation, as made by subsection (1), is revoked and the following substituted:

“strip search” means an inspection that is not conducted as part of a medical examination or treatment,

(a) of the body after all clothing on the top or bottom half of the body, or on the entire body, has been removed and of any clothing or other personal possessions that the person was required to remove; or

(b) of the body after all clothing on the top or bottom half of the body, or on the entire body, that is ordinarily worn over underwear has been removed and of any clothing or other personal possessions that the person was required to remove; (“fouille à nu”)

2. The Regulation is amended by adding the following section immediately before the heading “Admission to Institution”:

7.3 The Minister shall conduct and complete a review of the use of strip searches in correctional institutions and their operational impact before September 30, 2028.

3. Section 22.1 of the Regulation is amended by adding the following subsection:

(3) The Superintendent shall not authorize any manual searches of an inmate’s rectal or genital cavities under subsection (1), and no person shall conduct such a search except as part of,

(a) a medical examination or treatment to which the inmate has consented; or

(b) a medical examination or treatment in an emergency situation where patient consent is not required under the Health Care Consent Act, 1996.

4. Subsection 22.2 (10) of the Regulation is revoked.

5. The Regulation is amended by adding the following section:

22.3 Searches of inmates and other persons and of their property that are authorized under this Regulation must be conducted in a respectful manner and must take into account any applicable accommodation needs under the Human Rights Code.

6. Section 23 of the Regulation is revoked and the following substituted:

23. (1) An inmate shall only be subjected to a frisk search by a person who is of the same gender, unless it is not operationally feasible to have someone of the same gender conduct the search.

(2) Subsection (1) applies subject to any applicable accommodation needs under the Human Rights Code.

23.1 (1) An inmate shall only be subjected to a search using technical means that produces an image of the inmate’s body, including a search using an x-ray body scan, by a person who is of the same gender, unless it is not operationally feasible to have someone of the same gender conduct the search.

(2) Subsection (1) applies subject to any applicable accommodation needs under the Human Rights Code.

7. (1) Section 24 of the Regulation is revoked and the following substituted:

24. (1) A strip search of an inmate is only authorized if it is conducted in accordance with the requirements in this section.

(2) A strip search of an inmate may only be conducted by an officer or manager employed in the correctional institution.

(3) Before beginning a strip search, the officer or manager conducting the strip search shall inform the inmate of the purpose of the search and the process for conducting it.

(4) An officer or manager conducting a strip search shall conduct the search visually without touching the inmate and, despite clause 7 (1) (d), shall not use force to conduct the strip search.

(5) Despite subsection (4), an officer or manager conducting a strip search may direct the inmate’s movements in ways that facilitate the search and may touch the inmate during the search in accordance with a request from the inmate, such as where the inmate requests physical support due to mobility issues.

(6) The officer or manager conducting the strip search shall not require the inmate’s clothing to be removed for longer than necessary to conduct the search and shall not cause unnecessary embarrassment or humiliation.

(7) The strip search must be witnessed by one other officer or manager.

(8) An inmate shall only be subjected to a strip search by an officer or manager who is of the same gender, and the strip search shall only be witnessed by an officer or manager who is of the same gender.

(9) Despite subsection (8), the witness to the strip search may be of a different gender than the inmate if the officer or manager conducting the strip search believes on reasonable grounds that the time required to find a witness of the same gender would endanger the security of the correctional institution or the personal safety of any person. In such a case, the witness shall position themselves so that they can observe the officer or manager conducting the strip search but cannot observe the inmate’s underwear, chest, buttocks or genitals.

(10) For greater certainty, subsections (8) and (9) apply subject to any applicable accommodation needs under the Human Rights Code.

(2) Section 24 of the Regulation, as remade by subsection (1), is revoked and the following substituted:

24. (1) A strip search of an inmate is only authorized if it is conducted in the circumstances described in subsection (3), (5) or (9) and in accordance with the other requirements in this section.

(2) A strip search of an inmate may only be conducted by an officer or manager employed in the correctional institution.

(3) An officer or manager may conduct a strip search of an inmate if the officer or manager has reasonable grounds to believe that,

(a) the inmate is carrying contraband that can be hidden on or within the body;

(b) a strip search is needed to confirm the existence of contraband or recover it; and

(c) using a less intrusive search method would not be effective at locating contraband or is not operationally feasible.

(4) Before an officer conducts a search in the circumstances described in subsection (3), the officer must obtain the approval of a manager employed in the correctional institution unless the officer believes on reasonable grounds that the time required to obtain a manager’s approval would endanger the security of the correctional institution or the personal safety of any person.

(5) An officer or manager may conduct a strip search of a group of inmates if the officer or manager has reasonable grounds to believe that,

(a) contraband that can be hidden on or within the body and that poses a clear and substantial danger to human safety or security is present in the area of the correctional institution where the group of inmates is located;

(b) a strip search of the group of inmates is needed to confirm the existence of contraband or recover it; and

(c) using a less intrusive search method would not be effective at locating contraband or is not operationally feasible.

(6) A strip search that is conducted in the circumstances described in subsection (5) must be limited to as small a group of inmates as is reasonably necessary to confirm the existence of contraband or recover it.

(7) The officer or manager must obtain the personal approval of a Superintendent or, in the absence of the Superintendent, the acting head of the correctional institution before conducting a strip search in the circumstances described in subsection (5) unless,

(a) the officer or manager believes on reasonable grounds that the time required to comply with the requirement would endanger the security of the correctional institution or the personal safety of any person; and

(b) in the case of an officer, the officer obtains the approval of a manager employed in the correctional institution before conducting the strip search.

(8) Despite section 3, the Superintendent and the acting head of the correctional institution cannot delegate their authority to provide approval under subsection (7).

(9) An officer or manager may conduct a strip search of an inmate in any of the following circumstances if a less intrusive search method would not be effective at locating contraband or is not operationally feasible:

1. When an inmate is entering the correctional institution, except if the inmate is returning from an escorted absence during which the inmate was directly observed by an officer or manager at all times.

2. Before the inmate leaves the correctional institution on an escorted absence, including when they are transported to court.

3. Before the inmate is transferred to the custody of another correctional institution, a penitentiary or a psychiatric facility, whether within or outside Ontario.

4. When the inmate is initially held in conditions of confinement that isolate them from other inmates due to a risk of self-harm or physical harm to others.

5. When the inmate is leaving an area within the correctional institution where they had access to potentially dangerous contraband that could be hidden on or within the body.

(10) Before beginning a strip search, the officer or manager conducting the strip search shall inform the inmate of the purpose of the search and the process for conducting it.

(11) An officer or manager conducting a strip search shall conduct the search visually without touching the inmate and, despite clause 7 (1) (d), shall not use force to conduct the strip search.

(12) Despite subsection (11), an officer or manager conducting a strip search may direct the inmate’s movements in ways that facilitate the search and may touch the inmate during the search in accordance with a request from the inmate, such as where the inmate requests physical support due to mobility issues.

(13) The officer or manager conducting the strip search shall not require the inmate’s clothing to be removed for longer than necessary to conduct the search and shall not cause unnecessary embarrassment or humiliation.

(14) The strip search must be witnessed by one other officer or manager.

(15) The strip search must be conducted in a manner that ensures that the inmate’s underwear, chest, buttocks and genitals are not visible to any person other than the inmate, the officer or manager conducting the strip search and the witness.

(16) Subsection (15) does not apply if the officer or manager conducting the strip search believes on reasonable grounds that the time required to comply with the requirement would endanger the security of the correctional institution or the personal safety of any person.

(17) Subsection (15) does not prohibit closed circuit recording of a strip search for safety or security purposes.

(18) An inmate shall only be subjected to a strip search by an officer or manager who is of the same gender, and the strip search shall only be witnessed by an officer or manager who is of the same gender.

(19) Despite subsection (18), the witness to the strip search may be of a different gender than the inmate if the officer or manager conducting the strip search believes on reasonable grounds that the time required to find a witness of the same gender would endanger the security of the correctional institution or the personal safety of any person. In such a case, the witness shall, despite subsection (15), position themselves so that they can observe the officer or manager conducting the strip search but cannot observe the inmate’s underwear, chest, buttocks or genitals.

(20) For greater certainty, subsections (18) and (19) apply subject to any applicable accommodation needs under the Human Rights Code.

8. Section 25 of the Regulation is amended by adding the following subsection:

(3) In the case of a strip search, the written record must also include,

(a) the names of the officers or managers who conducted and witnessed the search;

(b) the date and time of the strip search;

(c) where applicable, the name of the person who approved the search or, if the search was not approved, the justification for not having obtained the approval;

(d) the circumstances that gave rise to the search;

(e) confirmation from the officers or managers who conducted and witnessed the search that they complied with the requirements of section 24;

(f) if an exception described in subsection 24 (16) or (19) was relied on, the justification for relying on the exception; and

(g) whether any Human Rights Code accommodations needs were identified and, if so, how those needs were addressed.

9. Section 25.1 of the Regulation is amended by adding the following subsection:

(2) The Superintendent shall provide the Minister with information on the use of strip searches in the correctional institution at least once every year.

10. The Regulation is amended by adding the following section:

28.7.1 For the purposes of sections 28.8 and 28.9, an inmate’s segregation review period shall be determined in accordance with the following rules:

1. The segregation review period begins on the first day in which the inmate is held in segregation.

2. The segregation review period ends on the day immediately before the one-year anniversary of the day the segregation review period began. However, if the inmate is in segregation on the day the segregation review period would have ended, the segregation review period is extended until the day the inmate leaves segregation.

3. After the end of a segregation review period, a new segregation review period begins on the first subsequent day in which the inmate is put back in segregation.

4. Despite paragraph 2, the segregation review period of an inmate immediately ends if they leave the Ministry’s custody.

11. Subsection 28.8 (1) of the Regulation is revoked and the following substituted:

(1) The Minister shall review the circumstances of an inmate’s segregation no later than five days after each of the following times during an inmate’s segregation review period:

1. The 15th aggregate day on which the inmate is held in segregation in the segregation review period, but only if that day occurs within the first 90 days of the segregation review period.

2. The 30th aggregate day on which the inmate is held in segregation in the segregation review period, but only if that day occurs within the first 180 days of the segregation review period.

3. The 45th aggregate day on which the inmate is held in segregation in a segregation review period, regardless of when that day occurs during the segregation review period.

12. Subsections 28.9 (1) and (2) of the Regulation are revoked and the following substituted:

(1) The Superintendent shall ensure that no inmate is held in segregation for more than 60 aggregate days in a segregation review period, subject to subsection (2).

(2) An inmate may be held in segregation for more than 60 aggregate days in a segregation review period if the Superintendent has reasonable grounds to believe holding the inmate in segregation is necessary to address immediate safety or security concerns that cannot be addressed in any other manner and only for as long as those grounds exist.

Commencement

13. (1) Except as otherwise provided in this section, this Regulation comes into force on the day it is filed.

(2) Sections 10, 11 and 12 come into force on August 18, 2023.

(3) Subsection 1 (1), sections 2 to 6 and subsection 7 (1) come into force on October 2, 2023.

(4) Subsection 1 (2), subsection 7 (2) and sections 8 and 9 come into force on July 31, 2024.

 

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