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The Charter of Rights and Freedoms

The recognition of a common-law duty of fairness represents the first flag in the expanded role of the judiciary "in mapping the contours of powers, rights and privileges which characterize imprisonment in Canada" (Cole and Manson at 40). The second flag was the enactment of the Canadian Charter of Rights and Freedoms (Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c.11) in 1982. By constitutionally entrenching human and democratic rights and freedoms, the Charter has accelerated both the number and the nature of challenges by prisoners to the process and conditions of their confinement. That the Charter would become a lightning rod for prisoners and prisoners' rights lawyers is hardly surprising, given that it was conceived as a Canadian response to international human rights standards. As stated in a passage from a judgement by Chief Justice Dickson:

Since the close of the Second World War, the protection of the fundamental rights and freedoms of groups and individuals has become a matter of international concern. A body of treaties (or conventions) and customary norms now constitutes an international law of human rights under which the nations of the world have undertaken to adhere to the standards and principles necessary for ensuring freedom, dignity and social justice for their citizens. The Charter conforms to the spirit of this contemporary international human rights movement, and it incorporates many of the policies and prescriptions of the various international documents pertaining to human rights. The various sources of international human rights law -- declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, customary norms -- must, in my opinion, be relevant and persuasive sources for interpretation of the Charter 's provisions. ( Reference Re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313 at 348)

While the analogy of the Charter as a lightning rod -- sitting atop the edifice of Canadian law as a constitutional protector of human rights -- is an evocative one, the body of jurisprudence which has emerged from Canadian courts since 1982 presents a much less dramatic picture of the recognition of human rights for prisoners. In what Mary Campbell has described as "the golden age of the revolution in Canadian prisoners' rights," the courts have clearly affirmed that prisoners do not, by virtue of their imprisonment, lose the guarantee of basic human rights, including freedom of conscience and religion, and freedom of expression, nor does their imprisonment remove their protection from unreasonable search and seizure and cruel and unusual punishment treatment (Mary E. Campbell, "Revolution and Counter-Revolution in Canadian Prisoners' Rights" [1996] 2 Canadian Criminal Law Review 285).

However, the prospect of a golden age has been somewhat dulled by several factors. First, the courts have held in some cases that the nature of the interest protected by a specific Charter right or freedom is, in the case of prisoners, attenuated. For example, in response to challenges to routine searches for contraband and weapons, and to random urinalysis for detecting drug use, the courts have ruled that the expectation of privacy, which underlies the protection of section 8 of the Charter against unreasonable search and seizure, has a much lower threshold in prison than in the outside community ( Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872 ; Fieldhouse v. Canada (1995), 40 C.R. (4th) 263 (B.C.C.A.) . The second limitation on the human rights of prisoners has been derived from the provisions of section 1 of the Charter itself. This states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. (c. 11)

The Supreme Court of Canada, beginning with its decision in R. v. Oakes, [1986] 50 S.C.R. (3d) 1 , has established a critical line of inquiry for the state to justify, as a reasonable limit, an intrusion into fundamental rights and freedoms. For a law to be deemed a reasonable law, it must serve the interests of societal concerns which are "pressing and substantial" and "of sufficient importance to warrant overriding a constitutionally protected right or freedom" ( Oakes, at 30). Furthermore, the means chosen for achieving the objective must meet a proportionality test which has three components: the means must be "rationally connected to the objective"; the means should impair the right or freedom in question "as little as possible"; and the effect of the impairment of the right or freedom must be proportionate to the objective ( Oakes, at 30-31). Unfortunately, some judges have found this critical pathway easily navigated when it comes to circumscribing the rights of prisoners.

Of all the sections of the Charter, it is section 7 , which guarantees that the right to "life, liberty and security of the person" cannot be denied "except in accordance with the principles of fundamental justice," that has been most frequently the subject of prisoner litigation. In their application of section 7, the courts, paralleling the jurisprudence on the scope of habeas corpus, have recognized that the concept of liberty is not an all-or-nothing proposition. A prisoner, despite the loss of the most important form of liberty -- that of moving in society as a free person -- still retains a spectrum of liberty interests within the context of institutional life. Decisions affecting discipline, segregation, and transfer may affect these residual liberty interests and must therefore be made in accordance with "fundamental principles of justice." As with the concept of fairness, the content of these principles depends upon the extent to which the liberty interest is impaired, and therefore the degree of procedural protection must be commensurate and proportionate to that impairment.

While there is a close correspondence in the jurisprudence between the common-law concept of "fairness" and the Charter 's "principles of fundamental justice," the constitutional nature of the section 7 guarantee has had a significant impact on enhancing the rights of prisoners to procedural protections. This enhancing effect is best illustrated by the decision of the Federal Court of Appeal in Howard. The issue in that case was whether a prisoner was entitled to be represented by counsel at a disciplinary hearing. Under the pre- Charter jurisprudence on the duty to act fairly, the courts had held that the chairperson at a disciplinary hearing had a discretion to permit representation by counsel where it was necessary to ensure a fair hearing. The Federal Court of Appeal in Howard held that where a prisoner's liberty interest was at stake (and depending on the particular circumstances of the case), section 7 gave rise to a right to be represented by counsel. Mr. Justice MacGuigan in his judgement commented on the new perspective the Charter had introduced in the context of prisoners' rights and suggested that "the right-enhancing effect of the Charter thus greatly increases the ambit of protection afforded" ( Howard v. Presiding Officer of the Inmate Disciplinary Court of Stony Mountain Institution [1984] 2 F.C. 642 at 688).

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