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 CLR applied this balancing test in the areas of prison discipline, segregation, transfer, search, visiting, and correspondence. These are the areas which have generated most of the litigation, and they canvas the full spectrum of the prisoner and institutional interests at stake.

One of the principal conclusions reached by the C.L.R. was that the provisions defining the nature and scope of prisoners' rights and the extent of staff powers should be placed either in the legislation or regulations and should not be left to the Commissioner's Directives, which should be limited to setting out operational policy. There were several reasons for this; accessibility and certainty of the rules relating to prisoners' rights and staff powers, the development of these rules through the democratic process and the necessity for any provision which limits fundamental rights and freedoms to be "prescribed by law", rather than contained in non-legally binding Commissioner's Directives. In what was a major shift in the direction of a legal culture affirming and respecting prisoners' rights, the C.L.R. concluded:

In developing a legislative framework, matters to be dealt with in the Directives as opposed to statute or regulation should be of an operational policy nature involving the day to day activities of employees in carrying out their duties, and should not directly affect inmate rights. Obviously, most activities and duties of penitentiary staff affect inmates. What we are saying, however, is that the Directives should not have the authority to limit inmate rights, nor should they be the sole source of inmate's rights since they are not legally binding or enforceable. (Working Paper No. 5 at 53)

The recommendations of the CLR were the subject of extensive consultation with organizations such as the John Howard and Elizabeth Fry Societies and the Canadian Bar Association. As a member of the C.B.A.'s Special Committee on Imprisonment and Release, I prepared in 1988 a 300 page report entitled Justice Behind the Walls that welcomed the principled and thoughtful analysis of the Correctional Law Review Working Group. While endorsing many of the proposed changes, the report also identified those areas where, in the opinion of the Canadian Bar, the proposals did not adequately protect against the abuse of correctional power nor give sufficient recognition to common law and Charter rights retained by prisoners.

Following public consultations, the Departments of Justice and the Solicitor General produced a draft of a new Corrections Act and a set of draft regulations. Although the reform package was presented as a refinement of the work of the CLR, there were substantial differences between the two sets of proposals. Most significantly, criteria and procedures recommended by the CLR to control the exercise of correctional discretion, particularly in the area of administrative segregation, were either removed or watered down. As a result, the Canadian Bar Association, in its submission to the House of Commons Committee on Legal and Governmental Affairs, concluded:

The proposed and draft regulations have diluted, and in some cases eviscerated, the Correctional Law Review proposals. In our opinion, the Correctional Law Review proposals constitute a necessary, although not entirely sufficient, blueprint for law reform. The proposed Corrections Act and draft regulations fall below the minimum threshold for law reform and are therefore unacceptable. (Canadian Bar Association, "Submission on the Directions for Reform and the Green Paper on Sentencing, Corrections and Conditional Release" [Submission to the House of Commons Connittee on Legal and Governmental Affairs, April 1991] at 62)

Most of the Canadian Bar Association's recommendations for strengthening the protection of prisoners' rights and for reinstating the substantive and procedural protections set out in the CLR proposals did not result in amendments to the legislative package, which eventually was passed by Parliament as the Corrections and Conditional Release Act of 1992 ( CCRA ). The new legislation, although falling short of the expectations raised by the Correctional Law Review, nevertheless was a significant advance in the field of correctional law. Mary Campbell, a senior official with the Secretariat of the Department of the Solicitor General, has suggested that the enactment of the CCRA "marked the pinnacle of reform in the modern era" (Campbell at 320). She highlights the statutory recognition of three principles of corrections which are of particular relevance to the protection of prisoner rights: that "the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders" [section 4(d)]; that "offenders retain the rights and privileges of all members of society, except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence" [section 4(e)]; and that "correctional decisions be made in a forthright and fair manner, with access by the offender to an effective grievance procedure" [section 4(g)]. In Campbell's assessment, "these statements reflect a truly fundamental, indeed revolutionary turning point in statutory protection of inmates' rights. Just these restatements on their own sent a clear and unequivocal message to all players in the system, whether legislators, judges or correctional authorities" (at 321).

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