Can Correctional Service Canada withhold information from prisoners?
- Kate Mitchell
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When a prisoner is entitled to make representations (for example, following an involuntary transfer or segregation placement), the prisoner is entitled to all information considered in making the decision. This is to allow the prisoner to make meaningful submissions to the decision-maker.
However, there is an exception. Correctional Service Canada can refuse to disclose information when it would jeopardize the safety of any person, the security of a penitentiary, or the conduct of any lawful investigation.
That said, the Service must specifically invoke this power and provide a gist (summary) of the information being withheld to allow the prisoner to be able to make effective submissions.
This means prisoners may not receive certain staff observation reports, information from confidential informers, etc. This can make it challenging to fully respond to allegations, especially when informants are making allegations that prisoners disagree with. Prisoners should also receive credibility assessments outlining whether the withheld information is completely reliable, believed reliable, doubtful reliability, or unknown reliability.
When it comes to parole, post-suspension, and detention review hearings, information can also be withheld. The Parole Board of Canada must be satisfied that there is a link between the contents of the withheld documents and the grounds for the non-disclosure. Moreover, the Board needs to ensure that the prisoner is provided with as much information as possible (without disclosing the confidential information).
If the Board discovers information or gists have not been shared with the prisoner, this can cause delays. Prisoners are entitled to disclosure 15 days before the date of the review. A prisoner may postpone a hearing where it has been discovered that information has not been disclosed. A prisoner can also waive the right to receive information 15 days before the hearing. Where the Service has not provided information to the Board (or gists), then the Board may adjourn the hearing, whether the prisoner wants to or not. This is because the Board has information standards and cannot proceed where there are problems with the information before it.