Commissioner's directive 041: Incident investigations

• Corrections and Conditional Release Act (CCRA), sections 19, 20, 21, 97, 98 and 152(4)
• Inquiries Act, sections 7-13
• Privacy Act
• Access to Information Act
• Official Languages Act

To ensure that the Correctional Service of Canada takes appropriate action following an incident

To ensure that the review and analysis of investigation reports influence organizational policy and practices where appropriate, and significant findings/recommendations from these reports are shared in order to prevent similar incidents from occurring in the future

To ensure that quality of care reviews are conducted when an inmate dies from natural causes in a CSC facility, excluding in Community Correctional Centres

Applies to CSC staff, offenders, contractors, volunteers and visitors where a CSC incident investigation or quality of care review is taking place

The Incident Investigations Branch completes administrative investigations rather than disciplinary investigations.

• Responsibilities
• Responsibility to Convene
• Procedures
• Timelines
• Requirement to Report and Investigate Incidents
• Decision to Investigate – Convening Authority
• Serious Bodily Injury
• Notification of a Forthcoming Investigation
• Composition of Boards of Investigation
• Official Languages Procedures for Individuals Being Interviewed
• Staff’s Duty to Provide Evidence
• Procedural Safeguards for Individuals Being Interviewed
• Consultation with Relevant Policy Holders During Investigations
• Collection and Protection of Information During the Investigative Process
• Disclosure of Confidential Medical Information
• Debriefings
• Review and Acceptance of Reports
• Consultations
• Approval and Closure of Investigations and Quality of Care Reviews
• Retention of Documents
• Sharing of Significant Findings
• Information Sharing
• Annex A - Cross-References and Definitions
• Annex B - Responsibility to Convene an Investigation

1. The Executive Committee will:
1. review significant findings, issues and/or recommendations from national investigations and quality of care reviews which could have a national impact on the Service
2. approve all corrective measures and action plans resulting from national investigations and quality of care reviews
3. close all national investigations and quality of care reviews.
2. The Senior Deputy Commissioner will:
   1. assess (in the record of decision) the need for an investigation under section 20 of the CCRA and submit that assessment to the Commissioner
   2. determine (in the record of decision), where death or serious bodily injury has resulted, who will be responsible for convening an investigation under section 19 of the CCRA, unless it is an investigation convened by the Commissioner under both sections 19 and 20, or it is a quality of care review convened by the Commissioner
   3. determine (in the record of decision) whether an investigation ought to be convened by the Director General, Incident Investigations, or by the Institutional Head or District Director under section 19, and sections 97 and 98 of the CCRA (general powers of management), or whether a file review or a Situation Report or Addendum is required
   4. ensure the Executive Committee is kept apprised of ongoing national investigations
   5. approve extensions to established timeframes for all national investigations.
3. The Director General, Incident Investigations, will:
   1. recommend to the Senior Deputy Commissioner whether an investigation should be convened, under what authority (i.e., section 19, section 20, or sections 97 and 98 - general powers of management), and what type of investigative process should be used (i.e., national tier I, national tier II, local, etc.)
   2. oversee the entire investigative process and be accountable to the Senior Deputy Commissioner for that process
   3. present the results of national investigations to the Executive Committee
   4. in the case of the non-natural death of an inmate, notify the next-of-kin, or other designated person, that an investigation has been convened and that they may request a copy of the report from the Access to Information and Privacy Division of CSC. In cases where an inmate suffers serious bodily injury, the inmate will be notified of the same
   5. in the case of a quality of care review, if notified by the Director General, Clinical Services and Public Health, that there is reason to believe that an inmate did not die from natural causes, or significant issues are identified that would require further investigation including interviews with staff, prepare a revised convening order and convene a Board of Investigation
   6. ensure that significant findings of investigations are shared nationally with all staff, relevant unions, and the chair of the National Executive Committee of the Citizen Advisory Committees
   7. approve extensions to established timeframes for local investigations initiated by the record of decision.
4. The Director General, Clinical Services and Public Health, will:
1. in the case of the death of an inmate by natural causes, advise the next-of-kin, or other designated person, that a quality of care review will take place and that they may request a copy of the report from the Access to Information and Privacy Division of CSC
2. notify the Director General, Incident Investigations, immediately if during a quality of care review, there is reason to believe that the inmate did not die from natural causes or that significant issues other than health care processes are identified that would require further investigation, including interviews with staff
3. ensure that opportunities to make improvements, identified as a result of quality of care reviews, are presented to the Health Services Executive Team.

Responsibility to Convene (see Annex B)

5. Under section 20 of the CCRA, the Commissioner may convene national tier I investigations to investigate and report on any matter relating to the operations of the Service. An investigation may also be convened under both sections 19 and 20 with respect to a death or serious bodily injury of an inmate. Section 21 of the CCRA applies to all investigations convened under section 20 of the CCRA.
6. Under section 19 of the CCRA, an investigation shall be convened when an inmate dies or suffers serious bodily injury. In the case of the death of an inmate by natural causes, a mortality review will be convened by the Commissioner.
7. The Director General, Incident Investigations, may convene national tier II investigations under section 19 of the CCRA in the case of the death or serious bodily injury of an inmate; or, into any other incident as authorized under sections 97 and 98 of the CCRA (general powers of management) and in accordance with this CD.
8. Institutional Heads and District Directors may convene local investigations or file reviews under section 19 of the CCRA in the case of the death or serious bodily injury of an inmate; or, into any other incident as authorized under sections 97 and 98 of the CCRA (general powers of management) and in accordance with this CD.
9. Under subsection 152(4) of the CCRA, the Chairperson of the Parole Board of Canada may appoint a person or persons to investigate and report on any matter relating to the operations of the Board.
10. On matters of joint interest, and when appropriate, the Commissioner, under section 20 of the CCRA, and the Chairperson of the Parole Board of Canada, under subsection 152(4) of the CCRA, may jointly convene a national investigation.

11. CSC national investigations should be completed and prepared for review by the Executive Committee within six months from the date of the convening order. However, in the case of more complex investigations (e.g., multiple incidents, sensitive, high profile, recurring), the Senior Deputy Commissioner may extend the time to investigate beyond the established timeframe.
12. CSC local investigations should also be completed and prepared for review by the relevant Regional Deputy Commissioner within six months from the date of the convening order.

13. Following an incident, the Institutional Head or District Director will submit, within five working days, a Warden’s Situation Report (CSC/SCC 1281-01) or a District Director’s Situation Report (CSC/SCC 1281) to the relevant Regional Deputy Commissioner and National Headquarters with the facts surrounding the incident as well as any immediate remedial action taken or planned at the operational unit. Follow-up on these remedial actions is the responsibility of the Regional Deputy Commissioner.

14. Upon receipt of a Warden’s Situation Report, a District Director’s Situation Report or an Incident Report, the Senior Deputy Commissioner, in consultation with the Director General, Incident Investigations, will determine, as described in paragraphs 2 and 3 of this CD, whether an investigation will be convened, the authority under which the investigation will be convened and the type of investigative process to be applied.
15. The Director General, Incident Investigations, will issue a record of decision to the appropriate regions and sectors. This will advise them of the convening authority under which the investigation is being convened and the type of investigative process to be applied. Consideration will be given to such factors as:
1. the level of violence and injuries sustained
2. the profile(s) of the inmate(s) and/or offender(s) involved
3. the possible impact on the Service’s capacity to deliver programs
4. public interest
5. the frequency with which similar incidents have occurred in the past
6. the recurrence of similar incidents at a particular site.

16. Subsection 19(1) of the CCRA requires that where an inmate dies or suffers serious bodily injury, the Service must investigate the matter.
17. The determination of serious bodily injury is made by the registered health care professional at the operational unit (see CD 568-1 – Recording and Reporting of Security Incidents). This determination may subsequently be reviewed by National Headquarters Health Services to ensure consistent interpretation of this definition.
18. Where an inmate suffers an accidental serious bodily injury, submitting a Situation Report is sufficient to satisfy the requirements of subsection 19(1) of the CCRA. Submissions should be consistent with the process for recording and reporting offender injuries.

19. For the purpose of transparency and openness, and to respect the official languages requirements (as outlined in sections below), a first notice will be sent to the Institutional Head(s) and/or District Director(s) by the Incident Investigations Branch advising that a national investigation will be convened. They must post the notice at their operational site(s). They must also advise their staff, the respective unions and the local Citizen Advisory Committee Chair of the convening of a Board of Investigation.
20. Subsequently, a second notice will be sent to the Institutional Head(s) and/or District Director(s) by the Incident Investigations Branch, accompanied by the signed convening order, advising of the Board’s date of arrival to the site and the Board’s composition. They must post the notice at their operational site(s). They must also advise their staff, the respective unions, and the local Citizen Advisory Committee Chair of the Board’s date of arrival and composition.

21. CSC staff on Boards of Investigation must be trained in conducting incident investigations. In exceptional circumstances, the Director General, Incident Investigations, can approve the participation of someone who has not received training, and will ensure that this individual is briefed on key aspects related to the case.
22. When preparing for an investigation to be convened in bilingual designated regions, at least one member of the Board of Investigation will be bilingual. All efforts will be made to have two bilingual Board members. In the case where a second bilingual Board member is required for an interview but not available, an ad hoc member will be assigned for this interview.
23. A CSC staff member may not be a member of the Board if they were directly involved in the management of any inmate or offender involved in the incident(s), the incident(s), or the response to the incident(s) being investigated.
24. Investigations convened by the Commissioner must always include at least one community member on the Board. Joint Boards of Investigation convened under section 20 and subsection 152(4) of the CCRA must be chaired by a community member.
25. Investigations convened by the Director General, Incident Investigations, may include a community member on the Board.
26. Boards of Investigation into incidents involving health care issues will normally include a registered health care professional. If this is not practicable, the Board must have access to individuals with the required health care expertise, and will consult with those experts.
27. Boards of Investigation into incidents involving Healing Lodge issues (CSC and section 81) will normally include an Indigenous community member. If this is not practicable, the Board must have access to individuals within the Indigenous Initiatives Directorate , and will consult with those experts.
28. To the extent possible, each Board of Investigation should include individuals with appropriate expertise relevant to the incident being investigated.
29. Any CSC staff member appointed to a national or local Board of Investigation shall immediately be relieved of their regular duties while conducting the investigation and writing the report.

30. Each person interviewed during an investigation must be informed, in advance of the interview, of their right to use the language of their choice. In order to ensure that this right is offered and understood by the interviewee, each interviewee will complete a form prior to the interview and provide the Board of Investigation Chairperson with a signed copy of the form which will be kept with the investigation working documents.
31. In unilingual designated regions, if a person wishes to testify in the minority language, the person must be permitted to do so. In the event that the Board does not include two members able to conduct the interview in the language chosen by the interviewee, the Chairperson will reschedule the interview and contact the Director and/or the Director General’s office to request additional ad hoc Board members in order to allow the interview to be conducted in the interviewee’s language of choice. Therefore, in unilingual regions, where possible, at least one bilingual member should be part of the Board of Investigation in order to ensure an active offer of services in both official languages. For any unplanned interviews, the active offer of bilingualism must be done at the outset of the interview.

32. All CSC staff members and those under contract with CSC must cooperate with Boards of Investigation and provide written and/or verbal information as requested (see CD 060 – Code of Discipline and subsection 10(1) of the Inquiries Act). To ensure the integrity of the process, staff who have provided information to a Board, or staff who are made aware of this information, shall not discuss or share the information until the investigation report has been presented to the Executive Committee. Certain information may remain protected/confidential even when the investigation has been completed and approved by the Executive Committee, and as such, should not be shared.

33. For Boards of Investigation convened under section 20 and/or subsection 152(4) of the CCRA:
1. sections 7 to 13 of the Inquiries Act apply. The Board must advise each individual interviewed during the investigative process of their protection under section 13 of the Inquiries Act before starting the interview
2. a written notice, in the employee’s official language will be issued by the Board to an individual under section 13 of the Inquiries Act when, in the Board’s opinion, there is a serious potential for adverse impact upon their reputation as a result of the non-compliance and/or statements made in the report (e.g., non-compliance with a law, policy, or procedure directly related to the incident under investigation)
3. the Board will use its discretion in determining how the matter is brought to the individual’s attention in cases where the non-compliance was not of critical importance to, or had no impact on, the incident being investigated. This will be documented on the investigation file.

NOTE: For investigations convened by the Commissioner under both sections 19 and 20 of the CCRA, the Inquiries Act will apply.

34. The duty to act fairly principles apply to investigations convened under sections 19 and 20 of the CCRA, and all other incident investigations or reviews defined in this directive. The Board must advise individuals being interviewed of the duty to act fairly principles in the official language of their choice before the interview begins.
35. When the Board encounters non-compliance with a law, policy, or procedure that is not related to the incident and therefore not included in the investigation report, the Board will use the following principles to decide what actions are to be taken:
1. include all findings that are of critical importance in the local, regional and national debriefings
2. advise the individual and their supervisor for all findings that are of some importance and when the Board is satisfied that appropriate actions will be taken locally
3. advise the individual only for findings that are minor technical breaches and when the Board is satisfied that appropriate actions will be taken by the individual.
36. No statement made by a staff member or evidence gathered during the course of investigations or reviews covered by this directive can be used directly for staff disciplinary purposes.

37. To ensure correct interpretation of policies, Boards and those conducting reviews of incidents are expected to consult relevant policy experts at National and Regional Headquarters. Regional Directors, Health Services, and other health care experts will be consulted in local investigations involving health care issues as appropriate.

38. To ensure the integrity of the process and to allow the Board to determine the relevance and importance of specific information or factors, information collected as part of the investigative process will be managed in accordance with the Privacy Act and safeguarded in accordance with CD 564 – Departmental Security and the Policy on Government Security.
39. If, during the course of an investigation, a Board discovers a potentially dangerous situation, this information will be reported immediately to the responsible authority.

40. When an investigation is convened pursuant to the CCRA and where the Inquiries Act applies, these acts permit the disclosure of relevant medical information to members of the Board of Investigation and/or those conducting reviews of incidents. Registered health care professionals (i.e., medical practitioners, psychologists, nurses) on the Board, conducting reviews of incidents, or who are consulted by them, will determine the relevance of the medical information. When necessary, disclosure of personal medical information is made in accordance with the Privacy Act as well as the rules of conduct of the respective professional governing body.

41. Prior to submitting their report to the convening authority, Boards of Investigation will conduct debriefings at the local, regional and national levels on the findings and recommendations that will be in the investigation report. The participants at the local debriefing will include the Institutional Head(s) and/or District Director(s) and the Chief, Health Services and/or the Chief, Mental Health Services (where applicable). The participants at the regional debriefing will include the Regional Deputy Commissioner(s), relevant regional policy holders and the Regional Director, Health Services (where applicable). The participants at the national debriefing will include the Director General, Incident Investigations, and relevant Sector Heads and national policy holders. These debriefings must be documented.
42. The Institutional Head(s) and/or District Director(s) will verbally debrief, as soon as practicable, the staff involved in the incident(s), those who manage the offender’s case, their local Citizen Advisory Committee and relevant members of the criminal justice system of the findings and recommendations that will be in the investigation report.
43. The quality of care review committee will review the findings and recommendations subsequent to quality of care reviews with the focus on identification of opportunities to improve the quality of care.

44. Staff in the Incident Investigations Branch will review each national investigation report, as well as reports from local investigations convened as per the record of decision, to ensure compliance with the terms of reference outlined in the convening order, after which the report will be formally accepted by CSC.

45. Relevant policy holders at National and Regional Headquarters will then be consulted to assist senior managers to identify emerging or recurring themes or possible policy gaps, and to seek corrective measures and action plans in response to the findings, recommendations and other issues raised by the Board.

46. Once a national investigation or quality of care review has been completed, members of the Executive Committee will review the report. In particular, they will review findings, recommendations and/or issues which have a national impact on the organization, as well as the proposed corrective measures and/or action plans.
47. The Director General, Incident Investigations, will present members of the Executive Committee with information from other investigations or fact findings (e.g., police, coroner, etc.) relevant to the incident under investigation so they are aware of key issues.
48. The Senior Deputy Commissioner will formally close investigations via a closure memo outlining that all actions were completed, or contingent upon the implementation of outstanding action(s) within the prescribed deadlines. A copy of the memo will be forwarded to the Office of the Correctional Investigator.
49. The Assistant Commissioner, Health Services, will formally close national quality of care reviews via a closure memo, and will forward a copy to the Office of the Correctional Investigator.
50. The Regional Deputy Commissioners will formally review, close and document all Situation Reports initiated by their region.
51. The Regional Deputy Commissioners will review all local investigation reports and file reviews initiated by their region. They will formally close these investigations/reviews. In particular, they will review findings, recommendations and/or issues, as well as the proposed corrective measures and/or action plans.

52. The Director General, Incident Investigations, must ensure that documentation related to national investigations is held at National Headquarters as per government retention schedules. The Assistant Commissioner, Health Services, will ensure all documentation related to quality of care reviews is similarly retained.

53. The Incident Investigations Branch creates Significant Findings documents. They provide a general overview of the significant findings and recommendations, corrective measures and action plans, and best practices stemming from various investigations. They are distributed to all CSC staff, relevant unions and the chair of the National Executive Committee of the Citizen Advisory Committees, and are posted on the Hub.

54. Requests for investigation reports must be solicited formally under the Access to Information Act or the Privacy Act.

Commissioner,

Original signed by:

Anne Kelly

CD 001 – Mission, Values and Ethics Framework of the Correctional Service of Canada
CD 060 – Code of Discipline
CD 081 – Offender Complaints and Grievances
CD 226 – Use of Electronic Resources
CD 530 – Death of an Inmate: Notifications and Funeral Arrangements
CD 568-1 – Recording and Reporting of Security Incidents
CD 570 – Security Equipment

Accidental serious bodily injury: a physical injury which cannot be attributed to an altercation or any other type of assaultive behaviour between inmates.

Board of Investigation: Board designated by the Commissioner, the Director General, Incident Investigations, or Institutional Head(s) or District Director(s) to conduct an investigation into an incident (see examples of incidents where investigations are convened in Annex B of this CD).

Community member: an individual who is not employed nor has ever been employed by CSC or the Parole Board of Canada, who participates as a member of a Board of Investigation.

Convening authority: the level and position with authority and/or responsibility to convene an investigation (see Annex B).

Convening order: a legal document which outlines the mandate and the authority, as stipulated in law and policy, for the investigation or quality of care review, as well as the issues to be investigated, analyzed and reported on, and the report due date.

Duty to act fairly: for the purposes of this policy an obligation to ensure the fundamental right of others to be treated fairly. This usually includes being involved in the process and having an opportunity to respond verbally and/or in writing to assessments that are made related to conduct and performance and that could negatively affect the reputation of an individual.

File review: a review of an offender’s CSC file(s) and related documentation. This process is authorized by District Directors when there has been an incident involving an offender in the community, or as a result of a request in the record of decision. The goals are to determine if there are any concerns with the release and/or supervision of the offender; to determine if there are any concerns with other activities related to the incident (e.g. sharing of information, incident reporting, etc.); to determine if the actions of staff or contracted individuals providing service to CSC have met all the requirements of the CCRA and CSC’s policies and procedures; and to determine whether or not a national investigation is required.

Local investigations: investigations convened by Institutional Heads under section 19 of the CCRA in the case of death or serious bodily injury of an inmate, or as authorized under sections 97 and 98 of the CCRA (general powers of management).

National tier I investigations: investigations convened by the Commissioner under section 20 of the CCRA into any matter relating to the operations of the Service (and in cases of death or serious bodily injury of inmates, also under section 19 of the CCRA).

National tier II investigations: investigations convened by the Director General, Incident Investigations, under section 19 of the CCRA in cases of death or serious bodily injury of inmates; or as authorized under sections 97 and 98 of the CCRA (general powers of management).

Professional governing body: the relevant provincial or territorial licensing, governing and/or certifying body for health care professionals.

Quality of care review: a review convened by the Commissioner under section 19 of the CCRA, when an inmate has died by natural causes in a CSC facility, excluding Community Correctional Centres. The review will be conducted by a registered health care professional for the purpose of assessing the quality of care provided leading up to the death. A quality of care review committee will review all deaths with a focus on identifying opportunities to improve the quality of care.

Record of decision: a document that lists all incidents where an investigation, a file review, and/or a quality of care review is to be convened, or a Situation Report (where not submitted) or Addendum is required. This document also indicates the convening authority and the type of investigative process to be used.

Registered health care professional: an individual registered or licenced for the practice of health or mental health care in Canada and preferably in the province or territory of practice (certain positions, however, require registration in the province or territory of practice).

Section 13 of the Inquiries Act: outlines that an individual has a right to respond in person and/or in writing to assessments of their conduct that could negatively affect their reputation.

Responsibility to convene investigations and board member composition can and will vary according to incident dynamics. Other incident types not listed in this annex may be investigated when deemed necessary.

NOTE 1: For the purpose of incident investigations, Community-Based Residential Facilities, Community Correctional Centres, and section 81 facilities are considered CSC facilities.

NOTE 2: Offenders on long-term supervision orders are under CSC jurisdiction.

*Community Board member required or recommended.

*Community Board member required or recommended.