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

The Legal and Constitutional Context of the CCRA

Fully understanding the negative human rights implications for Canadian corrections of the Panel’s recommended amendments to the CCRA entails a review of the legal and constitutional origins of the original provisions. Both the retained rights and the least restrictive measures principles have their jurisprudential origins in the pre- charter Supreme Court of Canada decision of Solosky v. The Queen.⁸⁷ Those origins and the bases for the principles are described in the working papers of the Correctional Law Review. We have reproduced the relevant passages below and we encourage our readers to consider them carefully because they reveal the necessary kind of discussion of constitutional and correctional principles that is conspicuously lacking in the Panel’s Roadmap:

The view that an individual in prison does not lose "the right to have rights" is recognized in Canadian law. Even before the Charter, in R. v. Solosky, the Supreme Court of Canada expressly endorsed the view that inmates retain rights, except for those necessarily limited by the nature of incarceration or expressly or impliedly taken away by law. Moreover, the Supreme Court endorsed the "least restrictive means" approach which recognizes that any interference with inmate rights by institutional authorities must be for a valid correctional goal and must be the least restrictive means available.

In effect, the "retained rights" principle means that it is not giving rights to inmates which requires justification, but rather, it is restricting them which does. Undoubtedly, some individual rights of inmates, such as liberty, must be limited by the nature of incarceration, in the same way that the rights of non-inmates in open society must be limited in certain situations. The important point, however, is that it is limitations on inmate rights which must be justified, and that the only justifiable limitations are those that are necessary to achieve a legitimate correctional goal, and that are the least restrictive possible.

There are also very significant policy reasons, flowing from our statement of purpose, for recognizing and protecting the rights of inmates. As practically all inmates eventually get out of prison, society's long term interests are best protected if the correctional system influences them to begin or resume law abiding lives. According rights and responsibilities to inmates supports and furthers this goal. On the other hand, lack of respect for individual rights in the corrections context can build up resentments and frustrations on the part of inmates and undermine the system's short term and long term security goals. Arbitrary treatment may lead not only to resentment on the part of inmates who are sent to prison for breaking the law, but the ensuing tension could create an atmosphere of mistrust, which could lead to violence, and which is contrary not only to the interests of inmates, but to staff, management and the larger community as well. Thus the Working Group is firmly of the view that humane treatment of inmates and the recognition of their rights while they are in prison aids in their successful reintegration into the community.⁸⁸

The enactment of the Charter of Rights and Freedoms, as with other components of the criminal justice system, has had major impacts on corrections. As described by the Correctional Law Review:

Although the Charter gives rights to all individuals (in some cases just to citizens) in Canada, and does not specify the precise nature of those rights in the correctional context, it is clear that the Charter does apply to prisoners, subject to restrictions on rights upheld pursuant to section 1. In the jurisprudence to date, the courts have been particularly concerned that any correctional decisions which affect a prisoner's liberty, that is to say, any decisions which could either extend the period of his incarceration or place him in a more restrictive environment, must be made in accordance with fundamental justice.⁸⁹

Many of the specific rights referred to in the Charter would touch on correctional authority: freedom of association, the right to vote, mobility rights, the right to life, liberty and security of the person, security against unreasonable search and seizure, and freedom from cruel and unusual treatment or punishment.

Section 1 of the Charter will increasingly mean that the burden will fall on government to articulate and "demonstrably justify" the limits which it wishes to place on offenders' rights. These limits will, furthermore, have to be stated in law.

This apparent Charter trend is echoed by the CLICS [The Criminal Law in Canadian Society] principle (a) that the criminal law should be administered "in a manner which interferes with individual rights and freedoms only to the extent necessary for the attainment of its purpose". Indeed, fairness suggests that we should not arbitrarily limit the civil rights of offenders, although we must recognize that some restrictions are a necessary consequence of a sentence of imprisonment. One principle, therefore, which should govern punishment could be stated as follows:

Individuals under sentence retain all the rights and privileges of a member of society, except those that are necessarily removed or restricted by the fact of incarceration. These rights and privileges and any limitations on them should be clearly and accessibly set forth in law.⁹⁰

It was this principle that was embodied in s.4 (e) of the CCRA.

The Correctional Law Review further explained the constitutional lineage of the requirement that correctional authorities must use the least restrictive measure, now reflected in s.4 (d) of the CCRA:

Section 1 of the Charter enables Parliament or a Legislature to enact a law which has the effect of limiting one of the guaranteed rights or freedoms. However, the government must prove that any limitation is a "reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society".

In a series of cases dealing with such diverse areas as immigration and narcotic control, the Supreme Court of Canada has set the test for limits on Charter rights. This test is extremely important for corrections, as it is at this stage that such serious concerns as security and good order of the institution will be balanced against the guarantee of Charter rights. The Supreme Court stresses that in applying this test it is committed to upholding Charter rights, and that any limits on Charter rights must be proven by the government to be necessary, and not just preferable as a matter of administrative convenience.

[The Oakes test] sets out two central criteria which must be satisfied to establish that a limit is reasonable and justified under section 1. The first, the objective to be served by any measure limiting a Charter right (for example, security of the institution) must be sufficiently important to warrant overriding a constitutionally protected right of freedom. Second, the party invoking section 1 (in the corrections context, this would be the government or the correctional authorities) must show the means to be reasonable and demonstrably justified. This involves a form of proportionality test that has three components:

1) the measures must be fair and not arbitrary, carefully designed to achieve the objective and rationally connected to it,

2) the means should impair the right in question as little as possible, and

3) there must be a proportionality between the effects of the limiting measure and the objective - the more severe the negative effects of a measure, the more important the objective must be.

This proportionality test shows that protection of inmate rights must be balanced against the important and legitimate institutional and security concerns of penitentiaries and the community; concerns that in several respects relate to human life and safety. Such factors play an important role when it comes to the question of the extent to which inmate rights may be restricted or limited by the nature of incarceration. The answer to this question is complex and depends not only on security concerns but also on the nature of the particular right or interest at stake, the limit in question and the impact on the inmate.

Of major significance in balancing the various factors involved is the recognition that prison practices and programs vary in degree of intrusiveness on inmate rights, and that as the level of intrusiveness increases, the objective must be increasingly important and protections and safeguards must correspondingly increase. Finding the proper balance necessary to protect inmate rights while maintaining a safe, secure institution through a sliding scale approach is one of the primary concerns of this paper.⁹¹

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