CONCLUSION: HUMAN RIGHTS AND THE PRISON AT THE BEGINNING OF THE TWENTY-FIRST CENTURY

In December 1998, Canada joined other countries in celebrating the fiftieth anniversary of the Universal Declaration of Human Rights (G.A. res.217A III, U.N. Doc A/810 at 71 (1948), reprinted in [1948] U.N.B. 465). We did so with the knowledge that, as much as any country, we have endeavoured to live up to the ideals and standards set by this statement of fundamental human rights, and with added pride that a Canadian, John Humphrey, played a leading role in drafting and guiding the Declaration through the United Nations in 1948. Article 1 of the Universal Declaration affirms that "All human beings are born free and equal in dignity and rights." As Max Yalden, former Chief Commissioner of the Canadian Human Rights Commission and a current commissioner with the United Nations Human Rights Commission, stated at the time, this "fundamental statement of humanity's goals and aspirations for a fairer and more humane future, is nowhere more applicable than in the world of corrections" (Maxwell Yalden, "Canada, the CSC and Human Rights," [November 1998] Let's Talk [Correctional Service of Canada], vol. 23, no. 4, at 13). Mr. Yalden went on to assert that "no moment in history could be more appropriate" for the Correctional Service of Canada to re-commit itself to respecting the provisions of the Declaration. In Mr. Yalden's judgement, that would "require ongoing and vigilant attention at every level of the Service" (Yalden at 13).

As I have outlined in Sector 4 of this book, in 1997 the CSC had invited Mr. Yalden to chair the Working Group on Human Rights. The group's mandate was to review the Service's systems for ensuring compliance with the Rule of Law in human rights matters; to provide a strategic model for evaluating compliance within a correctional context; and to present recommendations concerning the Service's ability to comply and to effectively communicate such compliance. The Report of the Working Group was completed in December 1997, along with two guides setting out international and domestic human rights obligations with respect to prisoners and CSC employees.

The Yalden Report tracks the principles of the Universal Declaration through the subsequent UN covenants and conventions to which Canada is a party that have shaped international human rights law, in particular the International Covenant on Civil and Political Rights (19 Debember 1966, Can. J.S. 1976 No. 47, 999 U.N.T.S. 171). Articles 7 and 10 of the International Covenant provide:

7. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment . . .

10. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

The Universal Declaration and the International Covenant have been influential in shaping Canadian domestic law, and many of their provisions are the source of the constitutional protections entrenched in the Canadian Charter of Rights and Freedoms . As we have seen, the Corrections and Conditional Release Act was drafted to ensure that the correctional legal regime was consistent with the Charter, and thus it is possible to trace a lineage through the four documents. As the Working Group concluded:

. . . One must acknowledge what the CCRA does do to lay out a correctional regime that will be respectful of Canada's obligations in human rights matters . . . Over and above the general right to safe and humane custody, sections 3 and 4 of the Act specifically identify: the right to be dealt with in the least restrictive way; the residual rights which are those of any member of society, except those necessarily restricted or removed by virtue of incarceration; the right to forthright and fair decision-making, and to an effective grievance procedure; the right to have sexual, cultural, linguistic and other differences and needs respected; and the right to participate in programs designed to promote rehabilitation and reintegration. These broad principles can be readily traced back to their international and constitutional roots. (Yalden Report at 24)

There is no binding international treaty that deals exclusively with the treatment of prisoners and the conditions of imprisonment. However, in 1955, the first United Nations Congress on the Prevention of Crime and the Treatment of Offenders adopted the Standard Minimum Rules for the Treatment of Prisoners . These rules were approved by the United Nations Economic and Social Council in 1957 (Resolution 663 CI (XXIV) of 31 July 1957), with the recommendation that all states adopt the rules and conduct compliance surveys every five years. It was not until 1975, at the Fifth UN Congress, that Canada endorsed the Standard Minimum Rules and committed itself to ensuring full compliance and implementation.

A 1998 CSC report has suggested that three fundamental human rights principles emerge from the ninety-five individual articles of the Standard Minimum Rules. First, a prisoner's dignity and worth as a human being must be respected through the entire course of his or her imprisonment. Second, the loss of liberty through the fact of incarceration is punishment enough. Third, prisons should not be punishing places; rather, they should help prisoners rehabilitate themselves. The report observed:

The fact that many states, including Canada, have incorporated [this] set of principles and rules in the legislative design of their correctional systems may be taken as evidence that the SMR s are now considered an essential element of international and, indeed, domestic human rights standards. Still 40 years after their initial adoption, certain rules have not been fully implemented and remain a challenge to correctional authorities. For instance, Canada still practices "double-bunking" of inmates in cells designed for one; permits some young offenders to serve their prison sentences in adult institutions; does not use the SMR s in the training of correctional personnel; and does not distribute the rules to every prisoner upon their initial reception. ( 50 Years of Human Rights Developments in Federal Corrections [Ottawa: Correctional Service of Canada, Human Rights Division, August 1998] at 15)

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