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

Least Restrictive vs. Appropriate Measures

It was to reflect Charter derived principles that the CLR recommended that new correctional legislation include in its statement of principles a provision that:

In administering the sentence, the least restrictive course of action should be adopted that meets the legal requirements of the disposition, and consistent with public protection and institutional safety and order.

The implication of this principle, taken together with others, is that corrections would have the burden of demonstrating why a given correctional environment should not, either in general or in respect of a particular offender, approximate the conditions and freedoms of society generally. If there are two ways of accomplishing the same end, but one impinges considerably less on the offender's rights and interests, it is the less drastic course which should be chosen unless there are defensible reasons to reject it. A good example is the need to have identifiable photos of all inmates in order to assist in finding an escaped convict. One way to ensure an inmate will not be able to use facial hair to thwart identification is to require all inmates to remain clean-shaven at all times; a less restrictive option is to take photos of an inmate with and without facial hair, if he wishes to grow a beard or moustache. The same principle of restraint can apply to much more significant questions of initial placement in maximum, medium or minimum security, as well as transfers, choice of treatment program, and conditions of release.⁹²

The principle of restraint found its legislative form in s.4 (d) of the CCRA:

that the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders.

We can now consider the nature of the change envisaged by the Panel’s recommendation that 4(e) be amended to 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.

This is the Panel’s rationale for the change:

The Panel believes that this principle has been emphasized too much by the staff and management of CSC, and even by the courts in everyday decision-making about offenders. As a result an imbalance has been created that places the onus on CSC to justify why the least restrictive measures shouldn’t be used, rather than on offenders to justify why they should have access to privileges based upon their performance under their correctional plans. The Panel believes that this imbalance is detrimental to offender responsibility and accountability.⁹³

The Panel clearly has no appreciation that the principle has been appropriately and necessarily emphasised by staff and management and “even by the courts” because it is in keeping with a Charter derived constitutional test to justify reasonable limits on Charter rights and that under that test the only justifiable limitations are those that are necessary to achieve a legitimate correctional goal, and that are the least restrictive possible. The onus on the correctional authorities to justify that the exercise of their legal authority is in accordance with the least restrictive measure is consistent with and indeed mandated by the "retained rights" principle endorsed by the Supreme Court of Canada which means that it is not giving rights to inmates which requires justification, but rather, restricting them, which does.

The Panel’s amendment would substitute “appropriate” for “least restrictive measures”. This change would substitute for a constitutionally derived standard of restraint on the exercise of state power, a policy and operationally derived standard that leaves it entirely up to correctional authorities to determine what are the “appropriate” measures, so long as they are designed to ensure the protection of the public, staff members and offenders and that are consistent with the management of the offender’s correctional plan. The operational difference and legal dissonance between a “least restrictive” and “appropriate” measures standard can be best understood in the context of the common justification of many aspects of prison regimes, that of administrative convenience. Viewed through this lens, providing for disciplinary hearings with procedural safeguards such as advance written notice and the assistance of counsel, is administratively inconvenient in terms of delaying the process and therefore it can be argued that limiting these elements would be “appropriate”. The problem with such a standard was most eloquently revealed in the 1984 judgment of Justice Mark MacGuigan in the Federal Court of Appeal in Howard, a case dealing with the right to counsel in prison disciplinary hearings. Justice MacGuigan, who prior to his appointment to the Federal Court of Appeal, had, as a Member of Parliament, chaired the 1977 House of Commons Sub-Committee on the Penitentiary System in Canada and had served subsequently as Canada’s Minister of Justice. In response to arguments that allowing for counsel would hinder the swift disposition of cases and undermine the administrative efficiency of the process, Justice MacGuigan stated:

It would be an ill-informed court that was not aware of the necessity for immediate response by prison authorities to breaches of prison order and it would be a rash one that would deny them the means to react effectively. But not every feature of present disciplinary practice is objectively necessary for immediate disciplinary purposes. The mere convenience of the authorities will serve as no justification; as Lord Atkin put it in General Medical Consulate Council v. Spackman, "Convenience and justice are often not on speaking terms . . . " All that is not immediately necessary must certainly yield to the fullest exigencies of liberty. ⁹⁴

CSC’s former Director General of Rights, Redress and Resolution, Shereen Benzvy Miller, in a communication to senior management regarding the Panel’s proposed amendments to s.4(d), succinctly expressed the relationship between the “least restrictive” and “appropriate” measures as standards to guide CSC decision-making:

..the least intrusive, least restrictive measures.. are the most and only appropriate [limits] and no special Task Force can diminish the force and power of the enshrined rights and entitlements that have been reflected in the CCRA.⁹⁵

The questions never posed and therefore never answered by the Panel are what legitimate correctional initiatives or interventions are presently precluded by requiring CSC to ensure that it respects the least restrictive measures consistent with the protection of the public, staff members and offenders and on what conceivable basis should the federal correctional system, the deep end of the criminal justice system, be excepted from the constitutional standards that govern all other exercises of state coercive power?

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