location: publications / books / Justice Behind the Walls / Sector 1 / Chapter 3 Corrections, The Courts and the Constitution / Title The Correctional Law Review and the CCRA

The working papers of the CLR were designed to provide a comprehensive, coherent and principled legislative framework which would embody the modern philosophy of corrections and incorporate the rights and guarantees of the Charter. Early in its work, the CLR identified the importance of articulating in new legislation a statement of both the purpose and the principles of corrections. The absence of any such statement in either the Penitentiary Act or correctional practice had been identified by the 1977 report of the House of Commons Sub-Committee on the Penitentiary System in Canada as a corrosive flaw. The statement of purpose and guiding principles articulated by the CLR were intended to emphasize the multifaceted nature of corrections in modern society, particularly the need to balance the criminal justice goals of justice and security. The CLR explained the conceptual and practical links between its principles and statement of purpose in the following way:

Of major significance to rights of inmates is the first principle of our correctional philosophy which states that inmates retain all the rights of a member of society, except for those that are necessarily removed or restricted by the fact of incarceration. This principle recognizes that offenders are sent to prison as punishment, not for punishment, and therefore, while in prison, retain the rights of an ordinary citizen, subject only to necessary limitations or restrictions . . . In effect, the "retained rights" principle means that it is not giving rights to inmates which requires justification, but rather, it is restricting them which does. Undoubtedly, some individual rights of inmates, such as liberty, must be limited by the nature of incarceration, in the same way that the rights of non-inmates in open society must be limited in certain situations. The important point, however, is that it is limitations on inmate rights which must be justified, and that the only justifiable limitations are those that are necessary to achieve a legitimate correctional goal, and that are the least restrictive possible.

There are also very significant policy reasons, flowing from our statement of purpose, for recognizing and protecting the rights of inmates. As practically all inmates eventually get out of prison, society's long term interests are best protected if the correctional system influences them to begin or resume law abiding lives. According rights and responsibilities to inmates supports and furthers this goal. On the other hand, lack of respect for individual rights in the corrections context can build up resentments and frustrations on the part of inmates and undermine the system's short term and long term security goals. Arbitrary treatment may lead not only to resentment on the part of inmates who are sent to prison for breaking the law, but the ensuing tension could create an atmosphere of mistrust, which could lead to violence, and which is contrary not only to the interests of inmates, but to staff, management and the larger community as well. Thus the Working Group is firmly of the view that humane treatment of inmates and the recognition of their rights while they are in prison aids in their successful reintegration into the community. (CLR Working Paper No. 5 at 5-6)

Having articulated a statement of purpose and a set of principles, the CLR next addressed the crucial task of balancing prisoners' rights with institutional interests.

In the context of the Charter, a significant part of the balancing process in the area of corrections revolves around the extent to which a restriction of a limitation on a Charter right can be demonstrably justified under section 1. Earlier in this chapter I set out the critical path established by the Supreme Court of Canada in the Oakes case to determine this issue. As described by the C.L.R.:

Two essential criteria must be satisfied to establish that a limit is reasonable and justified under section 1. The first, the objective to be served by any measure limiting a Charter right (for example, security of the institution) must be sufficiently important to warrant overriding a constitutionally protected right of freedom. Second, the party invoking section 1 (in the corrections context, this would be the government for the correctional authorities) must show the means to be reasonable and demonstrably justified. This involves a form of proportionality test that has three components:

1. The measure must be fair and not arbitrary, carefully designed to achieve the objective and rationally connected to it;
2. The means should impair the right in question as little as possible; and
3. There must be a proportionality between the effects of the limiting measure and the objective -- the more severe the negative effects of the measure, the more important the objective must be.

This proportionality test shows that protection of inmate rights must be balanced against the important and legitimate institutional and security concerns of penitentiaries and the community; concerns that in several respects relate to human life and safety. Such factors play an important role when it comes to the question of the extent to which inmate rights may be restricted or limited by the nature of incarceration. The answer to this question is complex and depends not only on security concerns but also on the nature of the particular right or interest at stake, the limit in question, and the impact on the inmate.

Of major significance in balancing the various factors involved is the recognition that prison practices and programs vary in degree of intrusiveness on inmate rights, and that as the level of intrusiveness increases, the objective must be increasingly important and protections and safeguards must correspondingly increase. Finding the proper balance necessary to protect inmate rights while maintaining a safe, secure institution through a sliding scale approach is one of the primary concerns of this paper. (CLR Working Paper No. 5 at 12-15)

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