The Arbour Recommendations -- Developing a Culture of Rights

In the second part of her report, Madam Justice Arbour made recommendations on some of the broad policy issues which underlay her examination of events at the Prison for Women. The primary issue -- and the one also central to this book -- deals with the role of the Rule of Law in the corporate philosophy of the Correctional Service of Canada. Madam Justice Arbour began with an analysis of the fundamental values underlying the Rule of Law:

Reliance on the Rule of Law for the governance of citizens’ interactions with each other and with the State has a particular connotation in the general criminal law context. Not only does it reflect ideals of liberty, equality and fairness, but it expresses the fear of arbitrariness in the imposition of punishment. This concept is reflected in the old legal maxim: nullum crimen sine lege, nulla poena sine lege -- there can be no crime, nor punishment, without law.

In the correctional context, "no punishment without law" means that there must also be legal authority for all State actions enforcing punishment.

It is apparent that the legal order must serve as both the justification and the code of conduct for correctional authorities since the confinement of persons against their will has no other foundation; it is not justifiable solely on self-evident moral grounds; it is not required on medical, humanitarian, charitable or any other basis. The coercive actions of the State must find their justification in a legal grant of authority and persons who enforce criminal sanctions on behalf of the State must act with scrupulous concern not to exceed their authority. (Arbour at 179)

Madam Justice Arbour drew the important distinction between the Rule of Law and the existence of rules. In her view, the evidence at the inquiry demonstrated that "The Rule of Law is absent, although rules are everywhere." The multiplicity of rules and the proliferation of Commissioner’s Directives and standing orders obscured "the fundamental premise that all correctional authority must find its roots in enabling legislation, and that it must yield to the legislated rights of prisoners." Ironically, the very multiplicity of rules "largely contributed to the applicable law or policy being often unknown, or easily forgotten and ignored." In finding "little evidence of the will to yield pragmatic concerns to the dictates of the legal order," Madam Justice Arbour concluded that the absence of the Rule of Law was not something confined to line staff at the Prison for Women but was "most noticeable at the management level, both within the prison and at the Regional and National levels" (Arbour at 180 - 81).

Madam Justice Arbour concluded that the enactment of the CCRA, the existence of internal grievance mechanisms, and the existing forms of judicial review had not been successful in developing a culture of rights within the Correctional Service of Canada. She also expressed deep scepticism that the Service was able to put its own house in order. She cited a 1984 report prepared by the Service for the Solicitor General which contained the following exhortation:

It must be made clear to staff and inmates alike, while the Service will protect them, it will not condone any unwarranted and unlawful use of force. Both staff and inmates must realize that violations will be resolved in swift and certain disciplinary action. ( Report of the Advisory Committee to the Solicitor General of Canada on the Management of Correctional Institutions [Ottawa: Solicitor General of Canada, Communications Division, 1984] [Chairman: John J. Carson], cited in Arbour at)

Madam Justice Arbour’s response to this left little room for ambiguity.

In my view, if anything emerges from this inquiry, it is the realization that the Rule of Law will not find its place in corrections by "swift and certain disciplinary action" against staff and inmates . . . The Rule of Law has to be imported and integrated . . . from the other partners in the criminal justice enterprise, as there is no evidence that it will emerge spontaneously. (Arbour at 180, emphasis added)

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