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
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