Lawyer's Dream or Correctional Administrator's Nightmare?

This elaboration of remedies to vindicate prisoners' rights and ensure compliance with the law may seem to some readers a lawyer's dream come true: Independent Chairpersons for serious disciplinary cases; independent adjudicators for segregation, involuntary transfers, and visit reviews; grievance processes with binding arbitration; an administrative tribunal; judicial review; the Arbour remedy of revision of sentence. For correctional administrators, this scenario might seem to evoke a nightmare world in which their principal preoccupation is preparing for and appearing at a succession of proceedings in which their decisions are challenged and redress for alleged or perceived injustices is sought. In this world, prisoners would become full-time grievors/appellants, with no time left for participating in programs aimed at their rehabilitation.

The way this array of remedies would operate in the real world bears little relationship to either the lawyer's dream or the correctional administrator's nightmare. In the recommendations I have made throughout this book, primary reliance for entrenching the Rule of Law and ensuring compliance with the law is on what lawyers call "first instance" processes. If disciplinary hearings, segregation reviews, and involuntary transfers are conducted with the appropriate balance between correctional expertise and independent adjudication, most cases will not proceed beyond this point. If the grievance process is underpinned by the possibility of independent binding arbitration, the incentive to resolve grievances at an early stage will ensure that only the exceptional case proceeds beyond there. In the same way, recourse to the administrative tribunal proposed by the Correctional Investigator would be reserved for those cases in which the CI has exhausted all other avenues in seeking to have the Service respond to his recommendations. Judicial review is not about second-guessing the decisions of correctional administrators; it interferes only when the decision is unreasonable or where there is a violation of the rules of procedural fairness and will not suddenly take over the agenda in wardens' offices. The judicial remedy proposed by the Arbour Report will be an even more exceptional event, because in most cases non-compliance with the law will not rise to a sufficient level of gravity to meet the threshold test of interfering with the integrity of the original sentence. In those exceptional cases, however, it will provide both an essential form of redress and a judicial indictment of the correctional practice which has made such redress necessary.

A final issue that must be addressed in contemplating enlargement of the remedies for the vindication of prisoners' rights is the cost. The Correctional Investigator has suggested that an administrative tribunal would be cost-effective because, in providing parties with ongoing clarification of the law, it would avoid the needless expense of revisiting unresolved issues with the Correctional Service. In proposing her judicial remedy, Madam Justice Arbour acknowledged the additional burden this could place on the courts but made the trenchant observation, which can be applied to every remedy considered in this chapter, that any additional burden "would only be so in proportion to the Correctional Service's non-compliance with the law" (Arbour Report at 184). The reforms the Correctional Investigator, Madam Justice Arbour and I have proposed all seek to draw the operations of the Correctional Service of Canada into the gravitational pull of a culture that respects legal and constitutional rights. The more fully the Service brings itself within this legal orbit, the less need there will be for prisoners and the Correctional Investigator to seek redress.

In Sector 1, I quoted from the 1977 report of the House of Commons Sub-committee on the Penitentiary System on the consequences, in the pre- Martineau era, of judicial non-intervention in the administration of justice in prisons. To recap: . . . The present judicial policy invites the perpetuation by the authorities of a system that is so far removed from normal standards of justice that it remains safely within the class of matters in which the imposition of judicial or quasi-judicial procedures would clearly be, in most instances, inconceivable . . . The worse things are in the penitentiary system, therefore, the more self-evident it is to the courts that Parliament could not possibly have intended for them to intervene. Injustice, as well as virtue, can be its own reward. ( Report to Parliament at 86)

In a post- Martineau, post- Charter, post- CCRA era, it is now self-evident that outside intervention is a necessary prerequisite to the attainment of justice behind the walls. To turn the Sub-committee's comment on its head, if the Correctional Service of Canada does "good corrections" within the letter and spirit of the law, justice can be its own reward, in the form of avoiding prisoners' grievances, adverse reports from the Correctional Investigator, unnecessary appearances before administrative tribunals, and criticism from judicial reviews.

For those who remain skeptical about the need for the expansion of remedies to vindicate the rights of prisoners, it may be helpful to reflect on the words of Mary Campbell. Ms. Campbell, as a senior official with the Secretariat to the Solicitor General, had an inside track in both the creation of the CCRA and the monitoring of its implementation. In commenting on the Arbour Report, she had this to say:

The Arbour Report amply demonstrates the frailty of the recognition of inmates' rights in this country. Notwithstanding the years of litigation, policy development and legislative reform, the lack of a genuine commitment to a culture of human rights behind bars can swiftly return prison culture to the "dark ages" where expediency rules rather than the law. The answer is not to abandon the norms, but rather, as Arbour has recommended, to shore up the practices so as to bring them into line with the law and an acceptable standard of prisoners' rights . . .

It is important to pay attention to how the Prison for Women abuses came to public attention: through habeas corpus application in the courts and through a special report by the Correctional Investigator which contradicted the findings of the Correctional Service's internal investigation. Consequently, when the argument is made that a strong, multi-facted legal framework is essential for the protection of inmates' rights, this means not just the substantive law but also the support mechanisms that allow that law to be monitored and tested in the open light of day. Had the women not had adequate access to the courts, had the Correctional Investigator not existed, the events at the Prison for Women might well have been simply one more anecdote in prison history behind the walls. (Mary E. Campbell, "Revolution" and Counter-Revolution in Canadian Prisoners' Rights" [1996] 2 Canadian Criminal Law Review 285 at 324)

The remedial measures advanced in this chapter are intended to ensure that the experiences of Hughie MacDonald, Donnie Oag, Jason Gallant, Gary Weaver, and all the other prisoners whose cases I have chronicled do not become just further anecdotes in this history. Rather, they are offered as legal antidotes to the practice of injustice.

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