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The CCRA Five-Year Review

On May 29, 2000, the House of Commons Standing Committee on Justice and Human Rights tabled the report of its subcommittee formed to conduct a comprehensive review of the provisions and operations of the CCRA. The report specifically identified the work of the Correctional Investigator as important in maintaining Canada's commitment to respecting the rights of prisoners.

The Sub-committee believes it is essential that correctional authorities respect offenders' rights, particularly since the principles and provisions incorporated in the CCRA "derive from universal human rights standards supported by all the advanced democracies with which Canada compares itself." The Sub-committee is therefore convinced that it is important to support independent organizations that are authorised to monitor respect for human rights, in particular the Office of the Correctional Investigator, which has the specific mandate to defend the rights of federally sentenced offenders. ( A Work in Progress at para. 6.2)

The Sub-Committee had heard evidence from the Correctional Investigator and other witnesses regarding the CSC's lack of responsiveness to recommendations. To enhance the independence of the Correctional Investigator, more readily bring to light issues his Office raised and improve the resolution of disputes between the CI and the CSC, the Sub-Committee's report recommended that the CCRA be amended so that the annual and special reports of the CI be submitted simultaneously to the Solicitor General and to Parliament. Furthermore, they recommended that these annual and special reports be automatically referred to the Standing Committee on Justice and Human Rights. This procedure would "give more authority to the Correctional Investigator's recommendations and improve the Correctional Service's accountability" ( A Work in Progress at 6.24).

The Solicitor General's response to these two recommendations, issued in October 2000, was a simple "Considered, but not pursued at this time." Despite the unequivocal evidence documented in the annual reports of the Correctional Investigator over almost thirty years, the authors of the government response unconvincingly asserted, "The Government believes that the current structure enables the Correctional Investigator to effectively act as an ombudsman on behalf of offenders" (Government Response to the Report of the Sub-Committee on Corrections and Conditional Release Act, October 2000 at 22).

A Work in Progress, like the report of the 1977 House of Commons Sub-Committee on the Penitentiary System in Canada, devoted a chapter to the issue of "Fair and Equitable Decision Making." The chapter discussed several components of the remedial tool box I have identified. Most significantly, in A Work in Progress the Sub-committee addressed the case for independent adjudication of administrative segregation. At an appearance before the Sub-Committee on behalf of the Canadian Bar Association, I had reviewed the history of this issue, citing evidence in Prisoners of Isolation and the more recent recommendations of the Arbour Report, the Task Force on Administrative Segregation and the Task Force on Human Rights. The Sub-committee, after reciting this history and commending the CSC for taking steps to enhance and monitor the segregation review process, agreed in their report that these initiatives are "a complement to, and not a replacement for, the independent adjudication of actions affecting the residual rights and freedoms of inmates" ( A Work In Progress at 48) In the words of the Sub-Committee,

. . . The physical and program constraints on administratively segregated inmates are severe. This was obvious to the Sub-committee in each of the segregation units it visited during its penitentiary tours . . . Administrative segregation removes inmates from normal daily contact with other offenders. It has the effect of making their access to programs, employment, services and recreation more difficult than it is for inmates in the general prison population. It has a dramatic impact on their residual rights. It makes the conditions of incarceration more stringent than they are for other inmates. . .

For these reasons, the Sub-committee believes there is a need for the insertion of an independent decision-maker who will take into account all factors related to administrative segregation cases. ( A Work in Progress at paras. 5.35 and 5.38)

The Sub-committee recommended that the independent adjudication process kick in at the thirty-day review for involuntary cases and the sixty-day review for voluntary cases. The thirty-day period was selected both because this is the maximum period of segregation allowed as a punishment imposed by the Independent Chairperson for a serious offence and because "there is little or no difference in the stringency of living conditions to which inmates administratively or punitively segregated are subject" ( A Work in Progress at 49). The Sub-committee went on to recommend that the present Independent Chairpersons of disciplinary boards also be empowered to exercise the adjudicative authority for administrative segregation, "since they would already be knowledgeable of and familiar with the law and day-to-day reality of federal penitentiaries" ( A Work in Progress at 49). The report suggested the CCRA be amended to specify not just the authority but also the criteria for the appointment of Independent Chairpersons.

The additions to the functions to be performed by independent chairpersons proposed by the Sub-committee demonstrate the importance it attributes to this position. The duty to act fairly is not just a series of procedural rules applicable to decision-makers. It also imposes an obligation on policy-makers to ensure that decision-makers exercising adjudicative authority do so in a fair and unbiased manner, indeed, in the absence of even an appearance or apprehension of bias.

One way for policy-makers to do this is to provide a clear statutory basis for the independent exercise of adjudicative functions. Including the process and criteria in the Act for the appointment of independent chairpersons will enhance their authority, provide permanence to the functions they perform, and make their adjudicative functions more open and transparent to those who want to scrutinize them. ( A Work in Progress at paras. 5.71 - 5.72).

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