The Correctional Law Review and the CCRA

Although it is not commonly recognized, the principal benefit flowing from a constitutionally entrenched Charter of Rights and Freedoms is not to be found in the litigation it spawns, but rather in the climate and culture of respect it creates amongst both governments and citizens for fundamental human rights and freedoms. It would be wrong, therefore, to register a judgement about the Charter 's impact based simply on the volume of prisoner litigation or a checklist of issues won and lost in the ongoing struggle between the keeper and the kept. This point should be held in mind, because the post- Charter era has not been punctuated by landmark victories for prisoners' rights; indeed, some of the major advances -- for example, the expansion of habeas corpus in the Miller, Cardinal and Oswald, and Morin trilogy -- were made with reference to the common law and not the Charter.

In assessing the developments in correctional law since 1982, a strong case can be made that the most significant impact of the Charter has been in the development of new correctional legislation, culminating in the Corrections and Conditional Release Act in 1992. The genesis of this legislation was the Federal Department of Justice's publication in 1982 of The Criminal Law in Canadian Society (Ottawa: Government of Canada, 1982), which set out a comprehensive vision of the federal government's policy on the purpose and principles of criminal and correctional law. Along with the publication, the Department of Justice launched the Criminal Law Review, which included as a component the Correctional Law Review (CLR) conducted by the Ministry of the Solicitor General. Over the course of several years, the CLR published a series of working papers which were widely circulated and the subject of public consultation. In its working papers, the CLR specifically addressed the need for new correctional legislation that would incorporate the values of the Charter and work out the appropriate balance between correctional authority and prisoners' rights as mandated by the Charter. In its fifth working paper, appropriately entitled "Correctional Authority and Inmate Rights," the Working Group of the CLR explained the rationale for a new legislative framework.

The second Working Paper entitled "A Framework for the Correctional Law Review," examined, among other questions, whether inmate rights, although protected through the Constitution and common law, should nonetheless be further specified in statute or regulation . . . There are a number of reasons why matters governing inmate rights should now be placed in law.

One is that legislated provisions are particularly important where the Charter is concerned. Because the Charter is drafted in general, abstract terms, legislative provisions play a crucial role in articulating and clarifying Charter rights and any restrictions on them that are necessary in the corrections context . . . In addition, development of legislative provisions at this time appears vastly preferable to a future of incremental and potentially inconsistent change forced upon the correctional system by the courts. Although judicial intervention plays an important role in providing outside inspection and scrutiny, the courts should be relied on as a last resort, rather than a first measure. In short, there is a need for legislative provisions to be developed in a way which does justice to all participants, in an effort to improve their collective enterprise. Litigation, in contrast, results in a win or loss for one side or the other, and often results in maximizing polarity.

In considering long term solutions, the need for resort to the courts should be avoided by developing legislative rules that recognize yet structure discretion consistent with principles that are understandable to inmates, prison staff and administrators, and the public. Legislative rules that are based on clearly stated principles and objectives would structure discretion to allow for the necessary degree of flexibility while ensuring the greatest possible degree of accountability. Development of legislative provisions to govern inmate rights and staff powers, with input from all those affected by the correction system, is necessary to strike the appropriate balance. In addition, legislative rules which reflect the interests of staff, offenders and the public are critical if they are to be fair and voluntarily complied with. It should also be noted that pro-active legislation that takes into account the administrative resource burdens on corrections would allow inmate rights to be protected in the most cost-efficient manner.

Legislative rules help to accomplish other goals: to clearly set out the individual rights of inmates in the corrections context, and to provide guidance to staff in how to carry out their functions. Inmates should be aware of and understand the restrictions which may be lawfully imposed on them, as well as the rights and responsibilities they have, and staff must be aware of their legal responsibilities and duties and the extent of their powers. Uncertainty in the law is not conducive to either a fair or effective correctional system. It is therefore in the interest of both staff and inmates that the law clearly define inmate rights and staff powers. (Correctional Law Review, Working Group, "Correctional Authority and Inmate Rights" [Working Paper No. 5] [Ottawa: Solicitor General, Canada, 1987] [hereafter referred to as CLR Working Paper No.5] at 2-4)

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