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CHAPTER 3
CORRECTIONS, THE COURTS AND THE CONSTITUTION
The legal architecture of imprisonment has changed more over the last
two hundred years than any other part of the carceral landscape. Penal
philosophy has oscillated, and correctional models have changed their
shape and language, but these variations pale in comparison to the recasting
of the role of the law inside prison. In Prisoners
of Isolation, I summarized how, in the nineteenth century, a prisoner
sentenced to imprisonment by a court of law was regarded by the law as
a person largely outside a framework of legal rights.
At common law, the person convicted of felony and sentenced
to imprisonment was regarded as being devoid of rights. A Virginia court
declared just over a century ago that a prisoner "has, as a consequence
of his crime, not only forfeited his liberty, but all his personal rights
except those which the law in its humanity accords to him. He is for the
time being the slave of the State" ( Ruffin
v. Commonwealth, 62 Va. 790 (1871)). This
view flowed historically from the old English practices of outlawry and
attaint, the consequences of which were that the convicted felon lost
all civil and proprietary rights and was regarded in law as dead. The
warden of Kingston Penitentiary was properly reflecting the traditional
status of the felon when in 1867 he wrote, "So long as a convict is confined
here I regard him as dead to all transactions of the outer world." (Jackson,
Prisoners of Isolation at 82)
Although by the end of the nineteenth century the concept of "civil
death" had largely disappeared, the legislative framework governing penitentiaries
in Canada was concerned mainly with assigning responsibilities for the
management of institutions. Within this framework, the distribution of
prisoners' entitlements was as austere as the regime under which prisoners
served their sentences. Thus, the Penitentiary Act
of 1886 stated,
51 The following general rules shall be observed in the
treatment of convicts in a penitentiary:
(a) every convict shall, during the term of his confinement, be clothed,
at the expense of the penitentiary, in suitable prison garments;
(b) he shall be fed on a sufficient quantity of wholesome food;
(c) he shall be provided with a bed and pillow and sufficient covering,
varied according to the season; and
(d) he shall, except in case of sickness, be kept in a cell by himself
at night, and during the day when not employed.
( Penitentiary Act, R.S.C. 1886, c. 182)
The contours of the legislative landscape of imprisonment, dominated
by the Penitentiary Act, remained relatively
unchanged throughout the twentieth century, until the enactment of the
Corrections and Conditional Release Act in
1992. In the most critical areas affecting the lives of prisoners, the
Penitentiary Act in its various amended forms
said very little about the legal regime, delegating to the Governor-in-Council
(in practical terms, the Cabinet) the power to make regulations. Thus
it was left to the regulations to set out what constituted a disciplinary
offence and to establish the criteria under which a prisoner could be
placed in segregation. But under the pre-1992 legal regime, even the combination
of provisions in the Penitentiary Act and
the Penitentiary Service Regulations represented
only a small part of the labyrinth of rules governing the lives of prisoners.
Under these Regulations, the Commissioner
of Penitentiaries was delegated the authority to issue directives "for
the organization, training, discipline, efficiency, administration and
good government of the service and for the custody, treatment, training,
employment and discipline of inmates and the good government of penitentiaries"
( Penitentiary Service Regulations 1962, S.O.R./62-90
s. 29.3). Prior to 1992, it was within the multivolumed binders of Commissioner's
Directives that the official rules of prison justice were fleshed out.
In a way symbolic of the extent to which prisoners remained outside the
protective umbrella of the law, Canadian courts ruled that the Commissioner's
Directives did not have the force of law, in contrast to the provisions
of the Penitentiary Act and the Penitentiary
Service Regulations. Therefore, there was no legal duty owed by a staff
member of the Penitentiary Service to a prisoner to adhere to the
directives ( R. v. Institutional
Head of Beaver Creek Correctional Camp ex parte McCaud (1969),
2 D.L.R. (3d) 545 ; Martineau v. Matsqui
Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118 ). But,
as if to drive home the asymmetrical relationship between the keeper and
the kept, the Penitentiary Service Regulations
made it a disciplinary offence for a prisoner
to contravene a directive (s. 2.29(n)). Page 1 of 1
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