Law in Quebec

The Correctional Services of the Quebec Public Security Ministry issued a notice for expression of interest aimed at “specialist suppliers” who would be able to provide “surveillance methods using technological means” to monitor offenders serving conditional sentences, a development that has received mixed reviews from criminal and prison law experts. Three provinces, including British Columbia, Newfoundland and Labrador, and Saskatchewan, use electronic surveillance to monitor offenders in the community.

“I hope with this development, if it proceeds, that more people will become eligible to serve sentences in the community,” said Bianka Savard Lafrenière, a Montreal lawyer specializing in prison law with Martel Savard & Associés inc. Electronic surveillance “will make it possible to accommodate more people to serve conditional sentences, without necessarily overloading the people responsible for supervision.”

Michel LeBrun, past president of the Association Of Defense Counsel Of Quebec, views electronic surveillance as “an interesting tool” that will allow offenders to serve conditional sentences who would otherwise be detained. But LeBrun does not believe that electronic surveillance should be extended to all offenders serving conditional sentences.

“In the absence of identifying a precise and serious risk associated with the individual concerned, I believe that the traditional methods of guaranteeing compliance with conditions such as curfews, a ban on being in certain places, and an obligation to report have proved their worth in a society that is equipped with tools such as cameras and mobile phones that make surveillance increasingly effective but intrusive,” said LeBrun, a criminal lawyer with LeBrun Provencher Avocats LLP in Trois-Rivières.

Sylvie Bordelais, vice-president and immediate past president of the Quebec Association of Prison Lawyers, wonders whether the impetus behind this initiative is to make up for staff shortages. According to the Quebec ombudsman’s latest annual report, slightly more than 3,000 officers worked for the Quebec Ministry of Public Safety, but 12.6 per cent of jobs (381) were vacant and 10.8 per cent (327) were on extended leave. A critical dearth of prison guards in Quebec has led to rights not being recognized, ombudsman Marc-André Dowd told Law360 Canada recently. Solitary confinement is supposed to be an “exceptional measure” but it is used too often, and the situation is “worsening” due to staff shortages in most detention facilities, added Dowd.

“Are we simply trying to compensate for the fact that there may not be enough probation officers to do the supervision, and so we’re replacing officers with electronic tools?” asked rhetorically Bordelais of Bordelais Nguyen LLP in Montreal.

COMPLIMENTARY SERVICE

The Quebec Public Security Ministry views electronic surveillance as a complementary device that will assist Correctional Services to monitor offenders in the community. In Quebec offenders serving conditional sentences are monitored by telephone checks and home visits. But it also did not deny that it could “replace” surveillance methods already in place.

“The aim of the call for interest is to explore the options available for replacing or supporting these control methods with an electronic surveillance technology solution,” said Thomas Ricard, a spokesperson with the Quebec Public Security Ministry. “It could aim to optimize and modernize practices. This in no way calls into question the supervision and support services which, like the follow-up to the results of these checks, would continue to be provided” by probation officers, correctional services officers or community workers.

No contract will be concluded following this call for interest, stipulates the notice for expression of interest. But depending on the outcome of the process, a call for tenders may be issued in order to eventually select the supplier who submits the best bid in accordance with the requirements that will be developed based on the needs of the Deputy Minister of Correctional Services, added the notice.

The ministry intends to implement a one-year electronic surveillance pilot project involving up to 100 offenders. If the pilot project is “conclusive,” the ministry will then extend electronic surveillance to all of Quebec’s 2,500 offenders serving conditional sentences, according to the notice.

“What will determine whether the pilot project is successful?” wondered Bordelais. “I wonder why this is necessary. Because if we don’t trust someone who can meet the conditions, we don’t have to give them a sentence to be served in the community. So the underlying basis (behind conditional sentences) is that we trust the person to respect the conditions. Why do we have to add (electronic surveillance), I don’t understand.”

QUESTIONS OVER EFFICACY

Electronic monitoring is often promoted as a way to reduce incarceration costs while ensuring public safety. But a 2019 study by Correctional Services Canada, entitled “The Cost-Effectiveness of Electronic Monitoring,” does not “endorse” it as a cost-effective approach to reducing recidivism. The study, conducted following a three-year national pilot project, also concludes that electronic monitoring is more expensive than supervision without the use of electronic surveillance. Electronic monitoring supervision is “associated” with substantial additional “time requirements” from probation officers, notes the study. On top of that, probation officers received various alerts, notably equipment-related alerts, throughout the supervision period, with the majority encompassing general alerts that are not related to the supervision conditions of offenders.

The Quebec Public Security Ministry recently acknowledged, albeit indirectly, that electronic surveillance is not necessarily the panacea it is often made out to be. In May 2022, Quebec introduced a GPS tracking device program for some intimate partner violence offenders, the seventh jurisdiction in the world. Nearly 18 months later, in September 2023, the Quebec Public Security Ministry issued a notice for expression of interest because it realized that the electronic tracking devices in use are unable to provide extensive coverage in the North due to so-called white zones where territories are not covered by a mobile network. The notice states that coverage in the North is “largely absent,” and is “largely confined” to the immediate vicinity of villages, “which significantly limits the relevance of the measure.” The notice also points out that there is no interoperability between the cellular networks in northern Quebec and those in the rest of the province, which represents a “major constraint.”

The use of electronic surveillance, as with the GPS tracking devices, also raises privacy concerns, said legal experts. Questions about how much data will be generated, how and where the data will be stored, and who will gain access to the data need to be addressed, said Lafrenière. “There are privacy concerns because the data collected will fall within the realm of privacy,” added Lafrenière. “There’s going to be a kind of balance that will be need to be struck. Will we judge that this infringement is justifiable because she’s serving a prison sentence?”