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The legal architecture of imprisonment has changed more over the last two hundred years than any other part of the carceral landscape. Penal philosophy has oscillated, and correctional models have changed their shape and language, but these variations pale in comparison to the recasting of the role of the law inside prison. In Prisoners of Isolation, I summarized how, in the nineteenth century, a prisoner sentenced to imprisonment by a court of law was regarded by the law as a person largely outside a framework of legal rights.

At common law, the person convicted of felony and sentenced to imprisonment was regarded as being devoid of rights. A Virginia court declared just over a century ago 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" ( Ruffin v. Commonwealth, 62 Va. 790 (1871)). This view flowed historically from the old English practices of outlawry and attaint, the consequences of which were that the convicted felon lost all civil and proprietary rights and was regarded in law as dead. 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." (Jackson, Prisoners of Isolation at 82)

Although by the end of the nineteenth century the concept of "civil death" had largely disappeared, the legislative framework governing penitentiaries in Canada was concerned mainly with assigning responsibilities for the management of institutions. Within this framework, the distribution of prisoners' entitlements was as austere as the regime under which prisoners served their sentences. Thus, the Penitentiary Act of 1886 stated,

51 The following general rules shall be observed in the treatment of convicts in a penitentiary:

(a) every convict shall, during the term of his confinement, be clothed, at the expense of the penitentiary, in suitable prison garments;

(b) he shall be fed on a sufficient quantity of wholesome food;

(c) he shall be provided with a bed and pillow and sufficient covering, varied according to the season; and

(d) he shall, except in case of sickness, be kept in a cell by himself at night, and during the day when not employed.

( Penitentiary Act, R.S.C. 1886, c. 182)

The contours of the legislative landscape of imprisonment, dominated by the Penitentiary Act, remained relatively unchanged throughout the twentieth century, until the enactment of the Corrections and Conditional Release Act in 1992. In the most critical areas affecting the lives of prisoners, the Penitentiary Act in its various amended forms said very little about the legal regime, delegating to the Governor-in-Council (in practical terms, the Cabinet) the power to make regulations. Thus it was left to the regulations to set out what constituted a disciplinary offence and to establish the criteria under which a prisoner could be placed in segregation. But under the pre-1992 legal regime, even the combination of provisions in the Penitentiary Act and the Penitentiary Service Regulations represented only a small part of the labyrinth of rules governing the lives of prisoners. Under these Regulations, the Commissioner of Penitentiaries was delegated the authority to issue directives "for the organization, training, discipline, efficiency, administration and good government of the service and for the custody, treatment, training, employment and discipline of inmates and the good government of penitentiaries" ( Penitentiary Service Regulations 1962, S.O.R./62-90 s. 29.3). Prior to 1992, it was within the multivolumed binders of Commissioner's Directives that the official rules of prison justice were fleshed out. In a way symbolic of the extent to which prisoners remained outside the protective umbrella of the law, Canadian courts ruled that the Commissioner's Directives did not have the force of law, in contrast to the provisions of the Penitentiary Act and the Penitentiary Service Regulations. Therefore, there was no legal duty owed by a staff member of the Penitentiary Service to a prisoner to adhere to the directives ( R. v. Institutional Head of Beaver Creek Correctional Camp ex parte McCaud (1969), 2 D.L.R. (3d) 545 ; Martineau v. Matsqui Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118 ). But, as if to drive home the asymmetrical relationship between the keeper and the kept, the Penitentiary Service Regulations made it a disciplinary offence for a prisoner to contravene a directive (s. 2.29(n)).

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