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

Removing Prisoners’ Rights – A Suspect Enterprise

The Panel’s view of human rights is rendered without reference to the constitutional framework established by Canadian courts. Charter rights are to be defined using a broad and liberal approach.¹⁰³ Charter rights are constitutionally entrenched and, as such, can only be infringed upon for a valid reason and in accordance with the least restrictive means. More specific to the prison context, the Supreme Court in Sauvé makes two important points regarding the nature of Charter rights. First, Charter rights are based on the principles of respect for human dignity and equality of membership in a political community. Second, the rights in the Charter are fundamental to democracy. The role of Charter rights in a democracy is to protect the integrity of the individual from the coercive power of the state. This function is especially important in the criminal law context, not only because of the potential for unfair and arbitrary action on the part of the state, but also because it is in the criminal context where the individual has the most to lose – the right to liberty. Courts have taken their role as protectors of these rights seriously and there is a strong jurisprudential history of defending the rights of an accused in the criminal law context. However, it must never be forgotten that the correctional system is an extension of the criminal justice system. An individual, while incarcerated, is even more vulnerable to rights-infringing action by the state, as he or she is dependent on the state for access to all the necessities of life. It is the state that provides their shelter, their food, ensures their safety and allows them access to their families through visits, phone calls and mail. As Justice Louise Arbour has stated:

A guilty verdict followed by a custodial sentence is not a grant of authority for the State to disregard the very values that the law, particularly criminal law, seeks to uphold and to vindicate, such as honesty, respect for the physical safety of others, respect for privacy and for human dignity. The administration of criminal justice does not end with the verdict and the imposition of a sentence. Corrections officials are held to the same standards of integrity and decency as their partners in the administration of criminal law. My objective in bringing forward recommendations on various aspects of corrections… is to assist the correctional system in coming into the fold of two basic Canadian constitutional ideals, towards which the rest of the administration of criminal justice strives: the protection of individual rights and the entitlement to equality. ¹⁰⁴

The Panel proposes that depriving prisoners of some rights should be part of prisoners’ punishment/accountability for the crime committed and that to earn these rights back prisoners must demonstrate a commitment to rehabilitation. In the correctional context, it is undoubtedly true that some Charter rights must necessarily be restricted to accomplish the purpose of imprisonment, for example “aspects of the rights to liberty, security of the person, mobility, and security against search and seizure.”¹⁰⁵ However, Sauvé also asserts that while there is no “doubt that Parliament may limit constitutional rights in the name of punishment provided that it can justify the limitation”¹⁰⁶, depriving prisoners of rights over and above the rights deprivations inherent in imprisonment should be approached with caution.

Chief Justice McLachlin in Sauvé subscribes to a vision of prisoners’ rights that sees human rights as inherent to every individual, both those that abide by the laws and those that do not. Not only is denying prisoners their rights suspect because it effectively removes them from Charter protection, it is also suspect because such a blanket denial of rights “runs counter to our constitutional commitment to the inherent worth and dignity of every individual”.¹⁰⁷ Therefore, while a prisoner may be legitimately deprived of some Charter rights for the purposes of imprisonment

it is another thing to say that a particular class of people for a particular time will completely lose a particular constitutional right. This is tantamount to saying that the affected class is outside the full protection of the Charter. It is doubtful that such an unmodulated deprivation,…is capable of justification…¹⁰⁸

The second concern that the court in Sauvé raises with regard to depriving prisoners of their rights it that it is “bad pedagogy”. The Federal Government in seeking to justify denying federal prisoners the right to vote had argued that it sent an “educative message” about the importance of respect for the law to inmates and to the citizenry at large. In the case of the Panel’s suggestions, the rationale offered for depriving prisoners of all but their basic rights is that this approach will teach offenders to be “responsible for their actions and [that they] are obligated to respect the rights and freedoms of others in society.”¹⁰⁹ However, Chief Justice McLachlin in Sauvé held that denying prisoners rights

is bad pedagogy.  It misrepresents the nature of our rights and obligations under the law, and it communicates a message more likely to harm than to help respect for the law. .. [It]is more likely to become a self-fulfilling prophecy than a spur to reintegration. Depriving at-risk individuals of their sense of collective identity and membership in the community is unlikely to instill a sense of responsibility and community identity.¹¹⁰

Furthermore, the Chief Justice McLachlin goes on to hold that “more profoundly, it sends the unacceptable message that democratic values are less important than punitive measures ostensibly designed to promote order.”¹¹¹ Through these statements, we once again see the Chief Justice returning to the idea that prisoners, regardless of what crimes they have committed, retain their membership in the citizen-community. Charter rights are meant to embody democratic values and recognize the importance of the dignity of every human being.

It should be clear from this analysis that the Panel’s suggestion that prisoners, rights be seen as contingent on good behaviour and that diminution of rights be determined by corrections officials and used as a form of punishment, is out of step with common law traditions and conflicts with the spirit of the decision in Sauvé. Not only are prisoners rights-bearing individuals, the rights they hold are of great importance and cannot be cavalierly or lightly set aside. When the Panel starts from the assumption that the relationship between prisoners and their human rights may be broken upon incarceration, they are proposing an approach that is not supported by Canadian legal traditions. While this may be reason enough to reject the recommendations of the Panel, there is a more profound issue at stake. When human rights are seen as contingent, when the value of punishment is prioritized over our constitutional commitment to the principle of the inherent dignity of every individual, we risk undermining the very value of that foundational principle. Our commitment to human dignity, as it is expressed through Charter rights, is a commitment to the idea embodied in the Universal Declaration of Human Rights that every individual is worthy of respect simply because they are human. When we begin deeming people ‘worthy’ and ‘not worthy’ of such respect, the value of human dignity is diminished. As such, to act upon the Panel’s recommendations would not only result in undermining the human rights of prisoners, it would result in the devaluation of foundational constitutional principles.

There is another important dimension to understanding the implications of a roadmap that would direct Canadian corrections on a journey featuring regimes that limit rights. A consistent theme in the history of corrections, not just in Canada but throughout the world, has been the struggle to achieve a balance between potentially competing goals, whether expressed as justice vs. security/public safety, punishment vs. rehabilitation, or restraint vs. reintegration. A prominent feature of this history has been that the invocation of imprisonment and the practices that accompany its execution have been punctuated over the course of two centuries by a succession of crises. These crises have led to commissions of inquiry and reports cataloguing both the abuses of power taking place within prison walls and the prison's pervasive tendency to make prisoners more dangerous and more anti-social. In the last part of the twentieth century and into this century it has been increasingly recognized that an indispensable component in reconciling the goals of public safety and justice has been promoting a culture of respect for the rule of law and human rights and holding correctional authorities accountable for abuses of power.

The most recent of these inquiries in Canada to address this component is that of Justice Louise Arbour in 1996 arising from the strip searching and segregation of a group of women at the Prison for Women. The Arbour report is a seminal document in the history of Canadian corrections yet the Panel’s report gives no consideration to the recommendations of the Arbour report to entrench respect for the rule of law and human rights in Canada’s penitentiaries. It has been left to CSC’s former human rights director general, Shereen Benzvy Miller, after CSC’s endorsement of the Roadmap, to remind the Service of the lessons of Arbour and their relationship to the Panel’s recommendations for limiting prisoners’ rights in the name of accountability and rehabilitation:

So how can we meet the objective of ensuring offenders are held accountable for their reintegration (bearing in mind that their incarceration is society’s way of holding them accountable for their offences). The CCRA and the Charter provide the context of the discussion, but we at CSC have history that sets the stage for our deliberations as well. It is not lost on me that I started writing this on April 22, 2008- exactly 14 years after the infamous ‘Certain Events at the Prison for Women in Kingston’ that led to the Arbour Report. So let us review a few highlights as we ask ourselves, should we be amending law to solve the accountability dilemma? Would more legislation, Commissioner’s Directives or Standing Orders improve the situation? Did limiting the rights of those offenders in that incident serve us well?

In her report, commissioned by Solicitor General Herb Gray, Arbour attacked prison officials' "ongoing infringement of prisoners' legal rights" and their "cruel, inhumane and degrading" treatment of the women. Nor did [justice Arbour] limit her criticism to the Prison for Women: she said the shortcomings were "systemic" and "part of a prison culture" in Canada. Specifically, she says:

The breakdown of the Rule of Law in corrections has been denounced in the past, often in the most forceful terms. In 1977, the Report of the Subcommittee on the Penitentiary System in Canada, chaired by The Honourable Mark MacGuigan stated that: ``There is a great deal of irony in the fact that imprisonment...the ultimate product of our system of criminal justice itself epitomizes injustice.''…

In my view, if anything emerges from this inquiry, it is the realization that the Rule of Law will not find its place in corrections by ``swift and certain disciplinary action'' against staff and inmates. The absence of the Rule of Law is most noticeable at the management level, both within the prison and at the Regional and National levels. The Rule of Law has to be imported and integrated, at those levels, from the other partners in the criminal justice enterprise, as there is no evidence that it will emerge spontaneously.

This dual characteristic of the role of legal norms in a penal institution was amply demonstrated throughout this inquiry. On the one hand, the multiplicity of regulatory sources largely contributed to the applicable law or policy being often unknown, or easily forgotten and ignored. On the other hand, despite this plethora of normative requirements, one sees little evidence of the will to yield pragmatic concerns to the dictates of a legal order. The Rule of Law is absent, although rules are everywhere….

The Service would be well advised to resist the impulse to further regulate itself by the issuance of even more administrative directions. Rather, the effort must be made to bring home to all the participants in the correctional enterprise the need to yield to the external power of Parliament and of the courts, and to join in the legal order that binds the other branches of the criminal justice system.¹¹²

In [another] section of the Report, she says:

The denial of rights and privileges in the Segregation Unit between April 22nd and April 26th was in contravention of the applicable law and policy. This was clearly based on a managerial strategy for handling the situation in the unit. It was an ill advised strategy which, in my opinion, contributed to an escalation of the situation. Rather than assisting the authorities in controlling the unit, it forced them to abandon any hope, at least in their own minds, of ever doing so. It was apparent early on that this was not effective. The fact that the policy of ``they get nothing'' was never changed, even after the intervention of the IERT, raises serious questions as to whether it was indeed merely a managerial strategy to control the unit, or whether it was, in part, the manifestation of a punitive attitude which would be a more serious contravention, not only of the policies, but of the law.¹¹³

Ms. Benzvy Miller pointedly brings the Arbour perspective to bear on the Panel’s recommendations:

Arbour’s plea that the rule of law ought to be better captured and the spirit of such legislation better understood at all levels of the organization could have been written about the suggestion that we abandon ‘least restrictive measures consistent with the protection of the public, staff members and offenders’ The road down which one would travel with this amendment leads eventually to the ‘they get nothing’ approach to management because we, as managers and staff, might actually believe that we have the constitutional authority, legislative power and moral entitlement to decide such a thing. The notion of least restriction does not bind us, it guides us to do the right thing in remembering that we are responsible for the custody and control of human beings who have rights.¹¹⁴

The Panel’s recommendations reflect a profound lack of understanding of the constitutional and correctional basis for the recognition of and legitimate limitations on the human rights of offenders. Implementation of its recommendations, far from being “transformative”, would be a deeply regressive development in Canada’s human rights history.

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