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Beyond the Ken of the Courts

The statutory framework in which responsibility for the conditions of confinement and the treatment of prisoners was broadly delegated to penitentiary officials was buttressed by the reluctance of the courts in Canada (as in the United States and England) to review the decisions of prison officials in response to challenges by prisoners to inhumane conditions or unfair treatment. The court's role was to enforce legal rights; since prisoners were seen as persons without rights, their complaints were necessarily beyond the ken of the courts. This rationale for what has been called the "hands-off" doctrine was later supplemented by an additional argument, that "judicial review of such administrative decisions [would] subvert the authority of prison officials, the discipline of prisoners, and the efforts of prison administrators to accomplish the objectives of the system which is entrusted to their care and management" (Note "Beyond the Ken of the Courts: A Critique of Judicial Refusal to Review the Complaints of Convicts" [1963] 72 Yale Law Journal 506 at 509).

The persistence of the hands-off doctrine in the United States has been described in this way by John Dilulio:

As late as 1970, judges played a negligible role in the administration of prisons. For most of the previous two centuries, prisoners were "slaves of the state." A prisoner was beaten for minor rule infractions, worked mercilessly, starved, forced to live in filth, and made to suffer cruelties and hardships. Little or no help could be expected from the bench. Wardens were the sovereigns of the cell blocks, free to do pretty much as they wished with the incarcerated citizens in their charge. For prisoners, the Constitution was a locked door, and the protections of the Bill of Rights were hidden from sight. (John J. Dilulio, Jr., "Introduction: Enhancing Judicial Capacity," in John J. Dilulio, Jr., ed., Courts, Corrections, and the Constitution: The Impact of Judicial Intervention on Prisons and Jails [New York: Oxford University Press, 1990] at 3)

An early Canadian example of the judicial hands-off doctrine can be seen in the case of R. v. Huckle (1914) 23 C.C.C. 73 where a prisoner filed a habeas corpus application in the Ontario High Court claiming that his time in custody was lengthened as a result of his loss of remission for violating institutional rules. His argument was that since he had not been furnished with the Penitentiary Regulations, he could not be bound by rules the existence of which he was not aware. The court rejected his claim as being based upon a "fundamental misconception"

It is argued that the reward of remission or the forfeiture of remission must be on some proceeding in the nature of a trial so that the convict may be heard. This is clearly not what is contemplated by the Act. Someone must determine whether the conduct of the convict is exemplary. Prima facie the warden and officers of the prison must discharge this duty. Their conduct will be subject to review by the Minister; but the statute surely does not contemplate a controversy in the courts over a question of prison discipline." (at 74-75)

In Prisoners of Isolation, I suggested that the effect of this hands-off approach was "to immunize the prison from public scrutiny through the judicial process and to place prison officials in a position of virtual invulnerability and absolute power over the persons committed to their institutions" (at 82). It is a telling commentary on the state of prisoners' rights in Canada that in my first study on prison discipline, conducted in 1972 at Matsqui Institution, I could cite only a single case in which a Canadian court had ruled that prison disciplinary proceedings, under certain restrictive conditions, could be subject to judicial review.

By the early 1970s, the insulation of prison justice from public and legal scrutiny was increasingly showing serious fault lines. These lines made their appearance in a series of escalating episodes of individual and collective violence, the product of both deteriorating prison conditions and a rising expectation by prisoners, as human rights became increasingly important outside the prison, that they could no longer be treated as persons without rights. In 1971, Kingston Penitentiary experienced one of the bloodiest riots in its history. Five staff were taken hostage, and a small group of prisoners, mostly sex offenders, were placed in a circle in the prison dome and brutally tortured; two of the prisoners died, and part of the institution was destroyed. Mr. Justice Swackhamer, in his anatomy of the riot, identified the absence of meaningful rehabilitation, the lack of any effective prisoner grievance system, and the entrenched hostility between staff and prisoners. The depth of that hostility was reflected in the aftermath of the Kingston Riot. Because of the extent of the destruction at Kingston, the newly constructed Millhaven Institution opened prematurely in May 1971, and over four days (instead of the planned six months) a large number of prisoners were transferred to Millhaven. The reception they received there was equally unplanned. As described by Mr. Justice Swackhamer:

We find that on [Wednesday] 10 to 12 custodial officers had been stationed in the southerly portion of P corridor, each armed with a riot stick . . . The officers positioned in P corridor were directed to stand some five feet east of the westerly corridor wall and approximately eight feet apart. We can only conclude that the objective and the result of such positioning of staff was to ensure that no inmate could pass through the corridor out of range of a riot stick. We find that on Wednesday, when the inmates left the buses and proceeded down P corridor, either singly or in pairs, substantial numbers of them were assaulted by officers standing either on the platform or in the corridor. In short, we find the inmates in the course of admission to the penitentiary were in this way required to run "the gauntlet." ( Report of the Commission of Inquiry into Certain Disturbances at Kingston Penitentiary during April 1971 [Ottawa: Information Canada, 1973] [Chairman: J. W. Swackhamer] at 34)

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