A flawed Compass: a human Rights Analysis of the Roadmap to Strengthening Public Safety

Retained Rights and the Least Restrictive Principles

If some of the recommended amendments raise issues of authoritarian rhetoric without substantive change and an asymmetrical concept of accountability there are others that raise fundamental questions about the constitutional limits on correctional authority in a free and democratic society. The Panel’s most significant and far reaching proposed amendments are to ss. 4(d) and 4(e).The sections currently read:

The principles that shall guide the Service in achieving the purpose referred to in section 3 are

(d) that the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders;

(e) that offenders retain the rights and privileges of all members of society, except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence;

In furtherance of its goal to more firmly establish the principle of offender responsibility in the Act, the Panel suggested several changes to the wording of these sections. In s. 4(d), the Panel suggested that instead of reading “that the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders, it read

“that, in managing the offender populations in general and the individual offenders, in particular, the Service use appropriate measures that will ensure the protection of the public, staff members and offenders, and that are consistent with the management of the offender’s correctional plan;

Regarding s. 4(e), the Panel recommends that instead of reading “that offenders retain the rights and privileges of all members of society, except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence”, the section should read that

“offenders retain the basic rights and privileges of all members of society, except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence, or that are required in order to encourage the offender to begin to and continue to engage in his or her correctional plan”

According to the Panel, offenders must be encouraged to take responsibility for their actions. Therefore, the Panel is suggesting that corrections in Canada should take a new approach: instead of assuming that prisoners are to be imprisoned according to the least restrictive measures and that prisoners retain all the rights that adhere to members of society except for those necessarily removed as a result of their imprisonment, prisoners would be expected to earn their rights and privileges. The only rights that prisoners would retain will be “basic rights”.

The recommendation of reducing prisoners’ legal entitlements to “basic rights” has a certain ambiguity never clarified by the Panel. Perhaps the Panel would like to see Canada going back to the Penitentiary Act of 1886 which stated,

51. The following general rules shall be observed in the treatment of convicts in a penitentiary:

(a) every convict shall, during the term of his confinement, be clothed, at the expense of the penitentiary, in suitable prison garments;

(b) he shall be fed on a sufficient quantity of wholesome food;

(c) he shall be provided with a bed and pillow and sufficient covering, varied according to the season; and

(d) he shall, except in case of sickness, be kept in a cell by himself at night, and during the day when not employed. ⁸⁵

Some indication of the Panel’s correctional philosophy can be gained from the articulation of the same “basic rights” correctional philosophy that was advanced by members of the former Canadian Alliance Party in its dissenting report to the Parliamentary Sub-committee’s Five Year review of the CCRA:

Putting the protection of a law-abiding society first means that it is necessary to accept to some degree that the rights and privileges of those who obey the laws of this country are fundamentally different from the rights of those who do not. The system does not do this.

Section 4 of the Corrections and Conditional Release Act (CCRA) states "that offenders retain the rights and privileges of all members of society, except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence." The Canadian Alliance believes that any person who has been convicted in a Canadian court should temporarily lose some of their rights and privileges as a Canadian. Primary exceptions to this are basic Charter rights such as right to an attorney and the right to humane and healthful treatment. We define this as the right to be incarcerated in accommodations with reasonable environmental control, to be provided with basic personal care supplies, to be fed according to the Canadian nutrition guide, and to be provided with access to basic medical treatment. Beyond this, prisoners should have the ability to earn other rights and privileges such as more freedom within the prison, transfers to more desirable facilities, training programs, sports programs, visitor privileges, payment for work performance, canteen privileges, temporary absences and parole. Each of these rights and privileges must be earned by appropriate behaviour which in turn means that they can also be taken away for inappropriate behaviour.⁸⁶

There is a populist attraction to this vision of corrections, rehabilitation and offender responsibility that the Panel is promoting. It claims to place responsibility for the crimes committed squarely on the shoulders of offenders and uses the incentive of converting existing rights beyond “basic rights” to privileges that must be earned to encourage offenders to reform their character. So what is so wrong with requiring prisoners to earn the “right” to have anything more than their basic rights? Particularly when all we are asking them to do is to participate in their own rehabilitation and in complying with institutional rules? The fundamental flaw in this and the Panel’s vision of correctional principles is fivefold:

(1) it is inconsistent with the evolving common law and Charter jurisprudence on the human rights of prisoners, specifically the judgments of the Supreme Court of Canada in Solosky v. The Queen [1980] and Sauvé v. Canada [2003];

(2) it disregards the extensive legislative history and context of the CCRA (specifically the work of the Correctional Law Review);

(3) it is out of step with international human rights standards;

(4) it would compromise respect for the rule of law and human rights in Canadian prisons and

(5) it would undermine rather than promote prisoner reintegration.

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