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

Constitutional and Legislative Framework of Corrections

The first recommendations made by the Panel centre around “Refocusing the CCRA”. Before setting out those recommendations the report provides the following one paragraph summary of the legislative framework of federal corrections:

The Corrections and Conditional Release Act (CCRA) came into force in 1992, replacing the Penitentiary and Parole Act with a modern, comprehensive framework for corrections and conditional release that makes clear that public protection is the paramount consideration in all decisions relating to the incarceration and release of offenders. Also, for the first time, victims of crime were formally recognized in the federal corrections and parole process ⁷⁵

Anyone familiar with the enormous work that went into the development of the CCRA would recognize that this is an incomplete and inadequate characterization of the Act. The purpose of the Act is set out in section 3:

The Panel further fails to appreciate that one, if not the primary, objective of the new legislation was to bring Canadian correctional legislation into compliance with the Charter of Rights and Freedoms. Indeed, in assessing developments in correctional law since 1982, a strong case can be made that the most significant impact of the Charter has been in the development of new correctional legislation, culminating in the Corrections and Conditional Release Act in 1992. The genesis of this legislation was the Federal Department of Justice's publication in 1982 of The Criminal Law in Canadian Society which set out a comprehensive vision of the federal government's policy on the purpose and principles of criminal and correctional law. Along with the publication, the Department of Justice launched the Criminal Law Review, which included as a component the Correctional Law Review (CLR) conducted by the Ministry of the Solicitor General. Over the course of several years, the CLR published a series of working papers which were widely circulated and the subject of public consultation. In its working papers, the CLR specifically addressed the need for new correctional legislation that would incorporate the values of the Charter and work out the appropriate balance between correctional authority and prisoners' rights as mandated by the Charter. In its fifth working paper, appropriately entitled "Correctional Authority and Inmate Rights," the Working Group of the CLR explained the rationale for a new legislative framework.

There are a number of reasons why matters governing inmate rights should now be placed in law.
One is that legislated provisions are particularly important where the Charter is concerned. Because the Charter is drafted in general, abstract terms, legislative provisions play a crucial role in articulating and clarifying Charter rights and any restrictions on them that are necessary in the corrections context . . . In addition, development of legislative provisions at this time appears vastly preferable to a future of incremental and potentially inconsistent change forced upon the correctional system by the courts. Although judicial intervention plays an important role in providing outside inspection and scrutiny, the courts should be relied on as a last resort, rather than a first measure. In short, there is a need for legislative provisions to be developed in a way which does justice to all participants, in an effort to improve their collective enterprise. Litigation, in contrast, results in a win or loss for one side or the other, and often results in maximizing polarity.

In considering long term solutions, the need for resort to the courts should be avoided by developing legislative rules that recognize yet structure discretion consistent with principles that are understandable to inmates, prison staff and administrators, and the public. Legislative rules that are based on clearly stated principles and objectives would structure discretion to allow for the necessary degree of flexibility while ensuring the greatest possible degree of accountability. Development of legislative provisions to govern inmate rights and staff powers, with input from all those affected by the correction system, is necessary to strike the appropriate balance. In addition, legislative rules which reflect the interests of staff, offenders and the public are critical if they are to be fair and voluntarily complied with. It should also be noted that pro-active legislation that takes into account the administrative resource burdens on corrections would allow inmate rights to be protected in the most cost-efficient manner.

Legislative rules help to accomplish other goals: to clearly set out the individual rights of inmates in the corrections context, and to provide guidance to staff in how to carry out their functions. Inmates should be aware of and understand the restrictions which may be lawfully imposed on them, as well as the rights and responsibilities they have, and staff must be aware of their legal responsibilities and duties and the extent of their powers. Uncertainty in the law is not conducive to either a fair or effective correctional system. It is therefore in the interest of both staff and inmates that the law clearly define inmate rights and staff powers.⁷⁶

It is clear from this statement, particularly the bolded passages, that legislatively articulating the nature and scope and restrictions on rights, was not inspired or premised on a “soft” approach to offenders, but on ensuring a fair, flexible, accountable and cost-effective correctional system consistent with Charter values.

The working papers of the CLR were designed to provide a comprehensive, coherent and principled legislative framework which would embody the modern philosophy of corrections and incorporate

the rights and guarantees of the Charter. They remain the clearest articulation of the need to work out the critical “balance between correctional authority and prisoners' rights as mandated by the Charter”, a balance ultimately reflected in the CCRA. The working papers were reissued in 2003 in PDF format and are posted on the Ministry of Public Safety’s website.⁷⁷ In his Preface to their re-publication the then Solicitor General, the Hon. Wayne Easter, stated:

This work provides a valuable record of the thinking that underlies Canada’s correctional law, including its relationship to the Charter of Rights and Freedoms.

Many features of the new Corrections and Conditional Release Act have their genesis in proposals set out in the working papers of the Correctional Law Review. Not the least of these is a statement of purpose and principles for corrections in the context of Canada’s criminal justice system.

A special Sub-Committee of the Standing Committee on Justice and Human Rights completed a review of the Corrections and Conditional Release Act in May 2000. Their findings endorse the enduring soundness of the purpose, values and principles of the Act.

This outcome is a legacy of the members of the Correctional Law Review team and those who participated in related consultations. Thanks to their efforts, Canadians have a correctional system that is held in high regard by jurisdictions throughout the world.⁷⁸

The work of those involved in the Correctional Law Review was indeed transformative, yet this important window into the CCRA is not even deemed worthy of a footnote by the Panel.

As we will demonstrate, the failure of the Panel to understand that the CCRA was designed to incorporate a Charter culture of rights into correctional operations undermines their principal recommendations for amending the Act. It is to these recommendations that we will now turn.

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