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

Significant substantive changes were introduced in the area of the power to search. The CCRA replaced the very broad and untrammelled power contained in the Penitentiary Service Regulations with a detailed set of provisions which distinguished among routine, investigative, and emergency search powers, establishing threshold criteria for each and differentiating among non-intrusive, strip, and body cavity searches. The statutory scheme was specifically structured to reflect the jurisprudence of the Supreme Court on the interpretation of the guarantee in the Charter of Rights and Freedoms against unreasonable search. The CCRA also marks a legally significant shift from the pre-1992 regime, in which visiting was a privilege, to one in which prisoners have a right to maintain contact with the community, subject to reasonable limits.

In many other areas the CCRA did not alter either the substance or the procedure of decision-making affecting prisoners. However, it did change these from their previous status as policy guidelines in the Commissioner's Directives to legally binding provisions of the legislation and regulations, which is significant in increasing not only their visibility but also their enforceability. There are other provisions in the CCRA which enlarge the scope of prisoners' rights as they had been recognized by the courts under the Charter. The best example of this is the recognition of a prisoner's right to be represented by counsel at a hearing of a serious disciplinary offence. The Federal Court of Appeal in Charter, while recognizing a right to counsel as a principle of fundamental justice within section 7 of the Howard, had ruled that this right was dependent upon such factors as the complexity of the case and the capacity of the particular prisoner. The CCRA removed these limitations and gave the prisoner an unqualified right to counsel -- although, as I will describe, the limited availability of legal aid has made this right illusory for most prisoners in Canada.

Significantly, the CCRA also moved beyond what the courts had established as baseline entitlements under the Charter in relation to Aboriginal prisoners. One of the principles in the CCRA is that "correctional policies, programs and practices respect gender, ethnic, cultural and linguistic differences and be responsive to the special needs of women and Aboriginal peoples, as well as to the needs of other groups of offenders with special requirements" [section 4(h)]. In implementing this general principle, the CCRA specifically recognizes that "Aboriginal spirituality and Aboriginal spiritual leaders and elders have the same status as other religions and other religious leaders" and authorizes the Solicitor General "to enter into agreements with Aboriginal communities to provide for the provision of correctional services for Aboriginal offenders" (sections 83 and 81).

In tracing the history of prisoners' rights from a time in which prisoners were "slaves of the state" and "dead to all transactions of the outer world," the lines of progressive reform are clear. Mary Campbell, after noting that prisoners' rights are "not the conferring of special entitlements so much as simply the prevention of abuse," summarizes the main features of the reform movement.

The history of prisoners' rights in Canada demonstrates two key elements in this prevention: first, a necessity of creating and engendering respect for a culture of prisoners' rights as human rights, and second, the availability of adequate remedies. In tracing the evolution of prisoners' rights, it can be seen that reformation depended not only upon statutory reform, but also on providing means for inmates to express their concerns, as well as ways for the outside world to scrutinize life behind bars. Progress in each of these areas has been remarkable: the statute has gone from being a brief description of management structure to a comprehensive code of inmate and staff rights and responsibilities; inmates who at one time had almost no way of voicing their views and concerns now have a wide range of administrative and legal avenues of redress; and the outside world has an unprecedented window on prison life. (at 286-87)

In the chapters that follow, drawing on my research at Kent and Matsqui Institutions, I will take the measure of prisoners' rights in Canada as reflected not in the text of the CCRA and the values of the Mission Document but in the daily practices of correctional administrators. These practices, and the voices of prisoners who have experienced them, reveal the extent to which the terms "revolution" and "counter-revolution" vie for ascendancy in the contemporary prison.

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