location: publications / books / Justice Behind the Walls / Sector 1 / Chapter 3 Corrections, The Courts and the Constitution / Title Beyond the Ken of the Courts

With such an induction ceremony, it was hardly surprising that Millhaven Institution, then the newest jewel in the correctional crown, went on to experience nineteen major incidents over the next six years.

Millhaven was not the only Canadian penitentiary to feel the volatile mix of deteriorating prison conditions and rising prisoner expectations. In the fall of 1976, the British Columbia Penitentiary experienced the most destructive riot in its hundred-year history. When the smoke cleared, damage of over $1.6 million had been sustained; a whole cell block had been destroyed, with the interior walls dividing the cells completely smashed. In the course of the riot, nine prisoners seized two staff hostages in the penitentiary kitchen. The B.C. Penitentiary riot came just nine months after another major incident in which three prisoners had seized sixteen hostages, both correctional officers and classification staff, and held them for three days. The hostage-taking ended when a tactical squad burst into the room in which the hostages were confined and opened fire, killing one of the hostages and severely injuring one of the prisoners.

As the main dome of the B.C. Penitentiary was being destroyed, another major disturbance broke out three thousand miles away, at Laval Institution in Quebec; a week later Millhaven erupted again. This unprecedented trilogy of riots resulted in the appointment of a House of Commons Sub-Committee to undertake a major inquiry. The Subcommittee's report provided a dramatic account of the crisis that engulfed the Canadian penitentiary system in the mid-1970s.

Seven years of comparative peace in the Canadian penitentiary system ended in 1970 with a series of upheavals (riots, strikes, murders and hostage-takings) that grew in numbers and size with each passing year. By 1976 the prison explosions were almost constant; hardly a week passed without another violent incident. The majority were in Canada's maximum security institutions. In the 42 years between 1932 and 1974, there was a total of 65 major incidents in federal penitentiaries. Yet in two years -- 1975 and 1976 -- there was a total of 69 major incidents, including 35 hostage-takings involving 92 victims, one of whom (a prison officer) was killed. (House of Commons Sub-Committee on the Penitentiary System in Canada, Report to Parliament [Ottawa: Minister of Supply and Services, 1977] [Chairman: Mark MacGuigan] at 5)

In page after page of the Sub-Committee's report, parliamentarians catalogued the continuing failure of the prison system to either reform prisoners or protect society. The Sub-Committee stated that it "saw and heard in both open and closed sessions in Millhaven, the Correctional Development Centre, Laval and British Columbia Penitentiary, the truth of the concept that 'prisons are the living graves of crime' " (at 10). For the purposes of this book, the most important chapter of the report is the one entitled "Justice within the Walls." In its very first paragraph, the Sub-Committee pronounced judgement on the state of prison justice.

There is a great deal of irony in the fact that imprisonment -- the ultimate product of our system of criminal justice -- itself epitomizes injustice. We have in mind the general absence within penitentiaries of a system of justice that protects the victim as well as punishes the transgressor; a system of justice that provides a rational basis for order in a community -- including a prison community -- according to decent standards and rules known in advance; a system of justice that is manifested by fair and impartial procedures that are strictly observed; a system of justice that proceeds from rules that cannot be avoided at will; a system of justice to which all are subject without fear or favour. In other words, we mean justice according to Canadian law. In penitentiaries, some of these constituents of justice simply do not exist. Others are only a matter of degree -- a situation which is hardly consistent with any understandable or coherent concept of justice. (at 85)

To redress this situation, the Sub-Committee advocated that two principles be accepted. The first was that the Rule of Law must prevail inside Canadian penitentiaries.

The Rule of Law establishes rights and interests under law and protects them against the illicit or illegal use of any power, private or official, by providing recourse to the courts through the legal process. The administrative process, however, may or may not protect these things, or may itself interfere with them, depending on the discretion of those who are given statutory administrative powers. In penitentiaries, almost all elements of the life and experience of inmates are governed by administrative authority rather than law. We have concluded that such a situation is neither necessary for, nor has it resulted in, the protection of society through sound correctional practice. It is essential that the Rule of Law prevail in Canadian penitentiaries. (at 86)

The second principle was that

Justice for inmates is a personal right and also an essential condition of their socialization and personal reformation. It implies both respect for the person and property of others and fairness in treatment. The arbitrariness traditionally associated with prison life must be replaced by clear rules, fair disciplinary procedures and the providing of reasons for all decisions affecting inmates. (at 87)

In a perceptive analysis, the Sub-Committee reflected on the relationship between the judicial "hands-off" doctrine and the lawlessness of prison life.

The gross irregularities, lack of standards and other arbitrariness that exists in our penitentiaries, by their very quantity, make, and always have made, the possibility of judicial intervention into prison matters a rather impracticable, time-consuming and dismaying prospect, as the judges themselves have pointed out. To open the courts to redress of these conditions would invite inmates to continue to increase the levels of their confrontation with prison staff and management, using the courts for purposes that, just like the present running battle between the opposing sides, are largely unassociated with any genuine interest in improving the operation of the system. By the same argument, however, the present judicial policy invites the perpetuation by the authorities of a system that is so far removed from normal standards of justice that it remains safely within the class of matters in which the imposition of judicial or quasi-judicial procedures would clearly be, in most instances, inconceivable. Further, this would ensure that the sheer immensity of the task of straightening it out is enough to discourage even the most committed members of the judiciary. The worse things are in the penitentiary system, therefore, the more self-evident it is to the courts that Parliament could not possibly have intended for them to intervene. Injustice, as well as virtue, can be its own reward. (at 86, emphasis added)

To bring the Rule of Law into prison, the Sub-Committee made a series of recommendations: that the Commissioner's Directives be consolidated into a consistent code of regulations having the force of law for both prisoners and staff; that independent chairpersons be appointed in all institutions to preside over disciplinary hearings; and that an inmate grievance procedure be established in which prisoners had a substantial role. With these legislative and administrative reforms in place, the Sub-Committee envisaged a vital but focussed role for the courts.

It should then lie with the courts to ensure that those individuals and agencies involved in the management and administration of the revised system adhere to general standards of natural justice and due process of law as they substantially exist elsewhere in the criminal justice system . . . We suggest that it would be both reasonable and appropriate to proceed in such a way as to allow a much greater scope for judicial control over official activity and the conditions of correction in a reformed penitentiary system than is now feasible. Assuming that the system is definitive in its commitment, clear in its intentions, and effective in its prescription, then the nature of the task remaining to be done by the courts in ensuring that the Rule of Law prevails within penitentiaries should not be disproportionate to what they do outside prison walls on an on-going basis. Abuse of power and denial of justice are always possible under any system, no matter how well conceived or organized it may be. These things are felt no less keenly in prisons than elsewhere, and their consequences in a penitentiary setting are often far more severe. (at 87)

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House of Commons Sub-Committee on the Penitentiary System in Canada, Report to Parliament