85. Definitions - In section 86 and 87,

"health care" means medical care, dental care and mental health care, provided by registered health care professionals;

"mental health care" means the care of a disorder of thought, mood, perception, orientation or memory that significantly impairs judgment, behaviour, the capacity to recognize reality or the ability to meet the ordinary demands of life;

"treatment" means health care treatment.

86. (1) Obligations of Service - The Service shall provide every inmate with

essential health care; and

reasonable access to non-essential mental health care that will contribute to the inmate's rehabilitation and successful reintegration into the community.

       (2) Standards - The provision of health care under subsection (1) shall conform to professionally accepted standards.

87. Service to consider health factors - The Service shall take into consideration an offender's state of health and health care needs

in all decisions affecting the offender, including decisions relating to placement, transfer, administrative segregation and disciplinary matters; and

in the preparation of the offender for release and the supervision of the offender.

88. (1) When treatment permitted - Except as provided by subsection (5),

treatment shall not be given to an inmate, or continued once started, unless the inmate voluntarily gives an informed consent thereto; and

an inmate has the right to refuse treatment or withdraw from treatment at any time.

       (2) Meaning of "informed consent" - For the purpose of paragraph (1)(a), an inmate's consent to treatment is informed consent only if the inmate has been advised of, and has the capacity to understand,

the likelihood and degree of improvement, remission, control or cure as a result of the treatment;

any significant risk, and the degree thereof, associated with the treatment;

any reasonable alternatives to the treatment;

the likely effects of refusing the treatment; and

the inmate's right to refuse the treatment or withdraw from the treatment at any time.

       (3) Special case - For the purpose of paragraph (1)(a), an inmate's consent to treatment shall not be considered involuntary merely because the treatment is a requirement for a temporary absence, work release or parole.

       (4) Treatment demonstration programs - Treatment under a treatment demonstration program shall not be given to an inmate unless a commit- tee that is independent of the Service and constituted as prescribed has

approved the treatment demonstration program as clinically sound and in conformity with accepted ethical standards; and

reviewed the inmate's consent to the treatment and determined that it was given in accordance with this section.

       (5) Where provincial law applies - Where an inmate does not have the capacity to understand all the matters described in paragraphs (2)(a) to (e), the giving of treatment to an inmate shall be governed by the applicable provincial law.

89. Force-feeding - The Service shall not direct the force-feeding, by any method, of an inmate who had the capacity to understand the consequences of fasting at the time the inmate made the decision to fast.

British Columbia (Attorney General) v. Astaforoff - (1983), 6 C.C.C. (3d) 498, 38 C.R. (3d) 294, [1984] 4 W.W.R. 385 (B.C.C.A.)

- Although the Penitentiary Service Regulations imposed upon the CSC a duty to provide essential medical and dental care to inmates, the court ruled in this case that there was no statutory duty requiring prison officials to force-feed an inmate on a hunger strike without his or her consent. As well, it was not clear that there was a common law duty to force-feed an inmate in such circumstances.

R v. Bishop - (1993), 13 Alta.L.R. (3d) 145, 145 A.R. 222, [1993] A.J. No.725 (Alta.C.A.)

- This was an appeal of a sentence of indeterminate incarceration imposed on an inmate. The appellant argued that the sentence imposed was a breach of his right not to be subject to cruel and unusual treatment or punishment pursuant to s12 of the Charter, as the trial judge found as a fact that the type of psychiatric treatment this accused would require if he was to have any chance of recovery was not available in the federal prison system at the time. This fact, the appellant submitted, made the sentence imposed indeterminate in nature, and thus constituted cruel and unusual punishment. Although the court was of the opinion, referring to subsection 86(1), that the law was broad enough to encompass the type of treatment that may be required for a dangerous offender, the appeal was dismissed as premature. The court was satisfied that the law does provide, and did at the time of sentencing provide, adequate protection on its face. While it may be that at some later time, if the treatment had not been made reasonably available to this prisoner, it could be argued that his sentence had become disproportionate, the matter could be addressed at some later point in time if the facts were such that a disproportionate sentence became inevitable.

Kuipers v. Canada - (1994), 74 F.T.R. 306, [1994] F.C.J. No.434 (F.C.T.D.)

- This was an application for an interlocutory injunction to prevent the CSC from terminating the applicant inmate from his employment in an apprenticeship training program at a correctional facility by reason of his refusal to voluntarily participate in a sex offender treatment program. The inmate was assessed as requiring several programs prior to his release, one of which was sex offender treatment. A transfer to another facility would have been necessary to facilitate his participation in the sex offender program. This meant it would have been impossible to continue the employment program. The court held that the sex offender treatment program that the inmate was being pressed to attend was "treatment" within the terms of subsection 88(1). Thus, the court was of the view that the inmate may either facilitate the CSC's priorities or frustrate them completely by reason of the provisions of subsection 88(1). If he chooses to thwart the CSC's priorities, the CSC had indicated that it would, in turn, thwart his desire to complete his apprenticeship program. While the inmate may not view this tactic on the part of CSC as entirely fair, or, indeed, consistent with its obligations to provide programming, the court found nothing that would preclude CSC's resort to this kind of "carrot and stick" approach.

Kelly v. Canada - (1996), 114 F.T.R. 285, [1996] F.C.J. No.880 (F.C.T.D.)

- An inmate who suffered from Environmental Sensitivity Disorder (ESD) claimed that the CSC did not take the necessary steps to alleviate his condition as a result of which he has endured unnecessary suffering and aggravation to his health. He sought certain declaratory relief including a declaration that the actions of the CSC constituted a failure to provide essential health care contrary to subsection 86(1) of the Act, relief under the Charter and damages. In dismissing the application, the court expressed the view that the evidence supported the CSC's submission that they have taken all reasonable steps to fulfill the statutory requirements. The evidence indicated that the inmate's medical condition had not been ignored. He has twice been referred by the CSC to a medical doctor with experience with this disorder. The CSC has followed up on these medical recommendations, albeit with often times limited results. The CSC had attempted to respond to the requests made by the inmate, both in terms of providing him with appropriate equipment, such as masks, and by creating specifically for him a job that allowed him to spend his days outside. The CSC attempted to find him alternate living arrangements that both suited his particular needs while at the same time maintain the integrity and security of the penitentiary setting. In addition, the CSC has always attempted to find appropriate accommodations for the inmate to meet with counsel or with visitors. On the other hand, the court was satisfied that the inmate made few efforts of his own to deal with his medical condition within the realities of his lawful confinement in a federal penitentiary.

R v. Hall - (1996), 45 Alta.L.R. (3d) 177, 191 A.R. 166, [1996] A.J. No.1098 (Alta.Q.B.)

- The court stated that it was cognizant that pursuant to the Corrections and Conditional Release Act, and specifically to Section 85, the Canadian Correctional Service shall provide inmates with essential medical and dental care. This includes reasonable access to non-essential mental health care, so as to contribute to the inmate's rehabilitation and successful reintegration into the community.

Strykiwsky v. Stony Mountain Institution - (2000), 193 F.T.R. 59, [2000] F.C.J. No.1404 (F.C.T.D.)

- In July of 1998, the Correctional Service of Canada introduced Phase I of a methadone regime which was made available only to those entering federal prisons who were already enrolled in a community methadone maintenance program. Only on an exceptional basis - when there was a dire need for immediate medical intervention, could an inmate who did not meet the criteria receive methadone. It was contemplated that Phase II, in which all inmates will be eligible to receive methadone, might be implemented in the future but this phase was not implemented as of the date of the hearing. The inmate applicant filed for judicial review alleging that the ongoing refusal of the CSC to provide methadone maintenance treatment to him-self and other federal inmates in need and wishing to receive it was contrary to section 86 of the CCRA and a breach of sections 7, 12 and 15 of the Charter. Subsequently, the inmate filed a motion for interim relief requesting that he receive methadone treatment pending the resolution of his application for judicial review. An agreement was reached, however, between the inmate and the CSC, and a consent order was drawn up setting aside the original refusal to treat him on an exceptional basis and referring the matter back to the CSC. This consent order was promulgated by a Mr. Justice Gibson and dated March 14, 2000.

R v. Payne - (2001), 41 C.R. (5th) 156, [2001] O.J. No.146 (Ont.S.C.J.)

- Citing subsections 88(1)(a), and (3) of the CCRA, the court was of the view that an offender on conditional release by way of a long-term supervision order may be compelled by a term of the order to undertake treatment and related pharmaceutical intervention where essential to management of the accused's risk of re-offending. In other words, the offender's consent to such a condition is not required. Should the offender breach terms of the order respecting treatment or medication, he or she is subject to apprehension with suspension of the order pursuant to s135.1 of the Act or to arrest and prosecution pursuant to s753.3(1) of the Criminal Code. The entire object of the long-term offender regime would be undermined by providing the offender the ability to defeat risk management. Accordingly, mandatory treatment and medication conditions in an order are a proportionate response to protecting the public from a person who, by definition, is a substantial risk to reoffend.