Study of the Legal Services Needs of Prisoners in Federal Penitentiaries in Canada


Over the years, penal philosophies have changed dramatically, but not as dramatically as the role of law inside prison walls. In the 1970's the federal prison system experienced a number of riots, hostage takings, murders and strikes after a comparatively quiet time. One of the first of many inquiries and reviews to be called to investigate the federal prison system was that of the House of Commons Sub-Committee on the Penitentiary System in Canada. In a report tabled in 1977, parliamentarians listed continuing failures of the prison system to rehabilitate offenders and to protect society. The report advocated for the Rule of Law and commented on prisoners' rights:

Justice for inmates is a personal right and also an essential condition of their socialization and personal reformation. It implies both respect for the person and property of others and fairness in treatment. The arbitrariness traditionally associated with prison life must be replaced by clear rules, fair disciplinary procedures and the provision of reasons for all decisions affecting inmates.

The Sub-Committee further recommended that Commissioner's Directives be consolidated into a code of regulations that would have the force of law for both inmates and staff. In addition, it was recommended that an inmate grievance system be established and that independent chairpersons be appointed in all institutions to preside over disciplinary hearings. The Sub-Committee also viewed the courts as playing an important role as a remedy for establishing due process while following the principles of natural justice.[7]

The principles sought by this Sub-Committee proved to be difficult to implement, at least in terms of the role of courts. It would take a decade of court cases to expand the definition of judicial review. One of the more pivotal cases, Martineau v. Matsqui Institution Inmate Disciplinary Board, eventually led to the development of modern prison law and further defined the Duty to Act Fairly. A year after the final ruling on Martineau, the Solosky case resulted in the Supreme Court of Canada endorsing the view that "a person confined to prison maintains all of his civil rights, other than those expressly or impliedly taken away from him by law" (Solosky v. the Queen, (1980) 1 S.C.R. 821 at 823).

Since that time, the Canadian Charter of Rights and Freedoms became law in 1982 and further expanded the role of the Judiciary and the notion of rights, as well as establishing a culture of respect among government and citizens for fundamental human rights.[8]

In 1982 the Department of Justice established the Criminal Law Review, which included a review of correctional law. The Correctional Law Review developed a statement of purpose and a set of principles and also examined the issue of balancing inmate rights with the interests of the institution:

Of major significance in balancing the various factors involved is the recognition that prison practices and programs vary in degree of intrusiveness on inmate rights, and that as the level of intrusiveness increases, the objective must be increasingly important and protections and safeguards must correspondingly increase. (CLR Working Paper No. 5 at 12 - 15)

The Correctional Law Review also endorsed the notion that prisoners are sent to prison as punishment and not for punishment and while there, they cannot be stripped of their rights as ordinary citizens. The review further emphasized that as prisoners will eventually return to society, the best interests of the public are better served if the rights of inmates have been respected to avoid building up resentments and frustration that will lead to further criminal activity after release.

In 1992 the Corrections and Conditional Release Act finally replaced the Penitentiary Act of 1886. With this legislation came significant advances in correctional law that further recognized due process.

Thus it is the context of the legal principles of the Rule of Law, the Duty to Act Fairly and due process that provides the framework for the assessment of present legal aid services and determinations of what is required to meet adequate standards of service.

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