The Arbour Proposal for a New Judicial Remedy

The great difficulty the Correctional Investigator had experienced in getting the Service to respond to his recommendations over the years led Madam Justice Arbour to recommend a larger role for the courts.

It is only because of the Correctional Investigator's inability to compel compliance by the Service with his conclusions, and because of the demonstrated unwillingness of the Service to do so willingly in many instances, that I recommend greater access by prisoners to the courts for the effective enforcement of their rights and the vindication of the Rule of Law. (Arbour Report at 195)

One of Madam Justice Arbour's major recommendations had not previously appeared as part of a reform agenda: she suggested that prisoners who had experienced illegalities, gross mismanagement, or unfairness in the administration of their sentences (for example, by being detained for a lengthy period in administrative segregation in violation of the law) be able to apply for a judicial remedy to reduce the period of their imprisonment.

Ultimately, I believe that there is little hope that the Rule of Law will implant itself within the correctional culture without assistance and control from Parliament and the courts. As a corrective measure to redress the lack of consciousness of individual rights and the ineffectiveness of internal mechanisms designed to ensure legal compliance in the Correctional Service, I believe that it is imperative that a just and effective sanction be developed to offer an adequate redress for the infringement of prisoners' rights as well as to encourage compliance . . . One must resist the temptation to trivialize the infringement of prisoners' rights as either an insignificant infringement of rights, or as an infringement of the rights of people who do not deserve any better. When a right has been granted by law, it is no less important that such right be respected because the person entitled to it is a prisoner. Indeed, it is always more important that the vigorous enforcement of rights be effected in the cases where the right is the most meaningful . . .

Respect for the individual rights of prisoners will remain illusory unless a mechanism is developed to bring home to the Correctional Service the serious consequences of interfering with the integrity of a sentence by mismanaging it. The administration of a sentence is part of the administration of justice. If the Rule of Law is to be brought within the correctional system with full force, the administration of justice must reclaim control of the legality of a sentence, beyond a limited traditional scope of habeas corpus remedies . . .

It would be unthinkable that the Correctional Service could illegally modify the duration of a sentence with impunity. This is the essence of habeas corpus. It is difficult to comprehend why there should be more tolerance for the disregard of other terms and conditions of a sentence which are as essential to its integrity as is its duration. As a means of preserving the integrity of a sentence which can be threatened by illegality, a provision should be enacted to give effect to the following principle:

If illegalities, gross mismanagement or unfairness in the administration of a sentence render the sentence harsher than that imposed by the court, a reduction of the period of imprisonment may be granted, such as to reflect the fact that the punishment administered was more punitive than the one intended. (Arbour Report at 182-83, emphasis added)

The Arbour Report envisaged that there be specific legislation enacted to provide for the type of remedy believed necessary to maintain the integrity of a sentence. Coincidentally, just a few months prior to the release of the Report, a case arose in New Brunswick that graphically illustrated the kinds of circumstances in which "illegalities, gross mismanagement or unfairness in the administration of a sentence" should be reflected in a remedy reducing the length of that sentence. In this case, because the illegalities involved breaches of the Charter of Rights and Freedoms, the trial judge found that he could fashion an appropriate remedy under s. 24(1) of the Charter. The facts of the MacPherson case were these. Mr. MacPherson was first arrested in New Brunswick on Friday, March 31, 1995 while driving a stolen car. He was held in jail over the weekend. On the following Monday, when he complained to the Provincial Court judge that his right not to be arbitrarily detained under s. 9 of the Charter had been violated because he had not been taken before a judge within 24 hours of his arrest as required by the Criminal Code, he was told "Saturdays and Sundays don't count". He was then sentenced to six months in jail. Mr. MacPherson was unable to get legal aid. He filed and argued his own appeal before the New Brunswick Court of Appeal. That court took the view that Saturday and Sunday did count and "to emphasize that a violation of this Charter right is serious" and that "justice does not stop on weekends" the Court of Appeal on June 14, 1995 allowed Mr. MacPherson's appeal by reducing his sentence from six months to three months. ( R. v. MacPherson, (1995) 166 N.B.R. (2d) 81 )

Page 1 of 3