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

The Nature of Prisoners’ Rights – The Citizen Lawbreaker

The second major amendment proposed by the Panel is to s. 4(e). The amendment would change the current wording which reads:

(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;

so that it would 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”

We have already cited the Working Papers of the Correctional Law Review to demonstrate that the current wording of 4(e) is a legislative codification of the Supreme Court of Canada’s pre-Charter decision in Solosky. Subsequent decisions of the Court interpreting the Charter have greatly reinforced this concept of retained rights and a careful review of the most important of these cases, Sauvé v. Canada - the prisoners voting case - will demonstrate that the Panel’s proposed changes are not only inconsistent with the Supreme Court’s approach to human rights but would undermine decades of important work in Canada and internationally to establish a culture of respect for human rights behind prison walls.

According to the Panel, apart from a basic level of rights, prisoners do not have the right to have rights. The assumption seems to be that human rights properly belong to those who are law-abiding members of society. For those who have crossed the threshold to become law-breakers and have been sentenced to prison the right to bear all but the most “basic” rights is forfeited. Any further rights must then be earned back by the law-breakers who must show they have taken responsibility for their criminal actions and are actively engaging in rehabilitating themselves.

In Sauvé,⁹⁶ the Supreme Court of Canada takes a very different approach to how prisoners’ rights are to be understood. First, and most importantly, Chief Justice McLachlin uses the evocative phrase “citizen-lawbreakers”⁹⁷ to describe prisoners and their relationship to Charter rights. The significance of this description is that it emphasizes that in any analysis concerning prisoners’ rights, prisoners are to be primarily understood as citizens and as members of society, and only secondarily as law breakers. Chief Justice McLachlin describes the importance of the “citizen-lawbreaker” description as follows:

The social compact requires the citizen to obey the laws created by the democratic process. But it does not follow that failure to do so nullifies the citizen’s continued membership in the self-governing polity. Indeed, the remedy of imprisonment for a term rather than permanent exile implies our acceptance of continued membership in the social order. Certain rights are justifiably limited for penal reasons, including aspects of the rights to liberty, security of the person, mobility, and security against search and seizure. But whether a right is justifiably limited cannot be determined by observing that an offender has, by his or her actions, withdrawn from the social compact. Indeed, the right of the state to punish and the obligation of the criminal to accept punishment are tied to society’s acceptance of the criminal as a person with rights and responsibilities. Other Charter provisions make this clear. Thus s. 11 protects convicted offenders from unfair trials, and s. 12 from “cruel and unusual treatment or punishment”.⁹⁸ (emphasis added)

The crucial point is that even after conviction and imprisonment, an offender remains a rights-bearing individual: the connection between the individual and their common law and Charter rights is not severed by a finding of criminal guilt and a sentence of imprisonment. Consequently, prisoners’ rights include the majority of the most robust rights listed in the Charter, including freedom of conscience and religion, freedom of thought, equality rights, the right to life, liberty and security of the person, language rights, and a considerable list of legal rights.

This approach is very much in keeping with the understanding of prisoners’ rights that has emerged under the common law over the last century. Originally at common law, persons convicted of felony and sentenced to imprisonment underwent a “civil death”, whereby they lost all rights they had previously held. A Virginia court declared in 1871 that a prisoner "has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the State"⁹⁹ The warden of Kingston Penitentiary was properly reflecting the traditional status of the felon when in 1867 he wrote, "So long as a convict is confined here I regard him as dead to all transactions of the outer world." ¹⁰⁰ As a result of this idea, prisoners, ceased to be rights bearing individuals, rendering them beyond the purview of the courts. However, this approach to prisoners’ rights has changed substantially in the course of the last century.

The change in approach in Canada began in 1892 when the concept of civil death was abandoned. The movement towards an understanding of prisoners as rights-bearing individuals was fortified in the pre-Charter court rulings such as Solosky and developments in administrative law, particularly the Supreme Court rulings on the duty to act fairly, that emphasized the importance of procedural protections in contexts where state action has a serious impact on individual rights and interests, such as in a prison.¹⁰¹ These two developments served to encourage the courts to take a more active role in reviewing how prison administrators handled issues around prisoners’ rights within the prison walls.

Viewed from this historical perspective therefore the recommendations advanced by the Panel are out of step with both the common law developments regarding prisoners’ rights and the Supreme Court of Canada’s findings with respect to prisoners’ access to Charter rights. The Panel, in proposing that prisoners be allowed “basic rights” and that any additional rights must be earned, views rights as being contingent, in that they can be taken away for ‘bad’ behaviour and restored for ‘good ‘behaviour. This view, however, misconceives at a fundamental level the very nature of human rights, as rights that are inherent in the human person, based upon a sense of common humanity and dignity. The inherent nature of the rights contained within the Charter has been recognized and affirmed by the Supreme Court in Sauvé in their statement that “Charter rights are not a matter of privilege or merit, but a function of membership in the Canadian polity that cannot lightly be cast aside”.¹⁰²

7.