Chairman, thank you for inviting the Canadian Bar Association back to speak to you again about part 3 of the bill dealing with the CCRA amendments.
The CBA is a national association of over 37,000 lawyers, notaries, law students, and academics, and our mandate includes seeking improvement in the law and the administration of justice.
The CBA national criminal justice section consists of a balance of prosecutors and defence lawyers from all parts of Canada. I'm a member of the committee on imprisonment and release. Our members have years of experience in practising within our prison walls.
The main theme of the CBA's recommendations on part 3 of the bill is the importance of protecting human rights as an integral part of correctional legislation. The overarching human right to dignity does not stop at the prison door and, as the Supreme Court has made clear, the charter applies with full force to those imprisoned.
Human rights are not something to balance against prison discipline and control or prison accountability. Rather, they are something through which prison discipline and control must be exercised in a professional manner. Promoting and respecting human rights is not about being soft--it is about being decent. It is also about how best to achieve public safety both inside and outside prison walls.
The modern recognition of the importance of respect for human rights in prisons can be traced to a 1977 report of this House in its inquiry into the penitentiary system in Canada. It was the violence that erupted deep from inside Canada's maximum security penitentiaries in riots and hostage-takings that led to the work of the committee.
It was the documentation of abuse of power and the inhumane conditions of confinement that gave rise to that House committee's clarion call that the rule of law must run inside Canadian penitentiaries and that justice was a personal human right and an essential precondition for reformation for offenders.
It is these principles, reinforced by the charter and the Supreme Court, that underpin the legal obligations of CSC to respect human rights found in the current CCRA.
In these few minutes I can't touch on more than just one of our many recommendations in our written submission.
Broadly, our concerns are that the amendments undermine the protective umbrella of law to prevent abuse of authority; distort the respective responsibilities of the judiciary and the correctional authorities; and legitimate, under the language of benign words, more oppressive regimes.
I'm just going to deal with the one point, which I think this committee can come to grips with.
Bill C-10 would exorcize all references to the constitutional standard of the “least restrictive measures” in the CCRA.
For example, paragraph 4(d), one of the principles, now reads “that the Service use the least restrictive measures consistent with” public safety and the safety of staff and offenders. This standard traces its judicial heritage to the pre-charter Supreme Court decision in Solosky and, as many of you know, the post-charter decisions reflected in the Oakes case, which sets out the test for providing reasonable limits to a Charter right.
The proposed amendment to section 4 would read that “the Service uses measures that are consistent with the protection of society, staff members and offenders and that are limited to only what is necessary and proportionate to...the purposes of this Act”.
Not bad, but not good enough as a constitutional standard. The Oakes test and the Supreme Court have made it clear that in limiting rights what must be done is that the limitation must impair the right as little as possible, consistent with the purposes. The amendment, by taking out the words “least restrictive measures”, takes out that vital component of the constitutional standard.
It's just three words: “least restrictive measures”. The CBA proposed amendment is that you reinstate those three words. So using the existing language of the amendment, it would read that “the Service uses the least restrictive measures that are consistent with the protection of society, staff members and offenders and that are limited to only what is necessary and proportionate to...the purposes of this Act”.
Giving the waning respect for human rights in prisons, it is vital that these words be reinstated and that the constitutional standard of restraint be reinvigorated.
This committee is very busy, but you do not have to work mightily to make this amendment. It just requires adding “the least restrictive measures”, a standard, well-respected, and well-rehearsed part of other federal and provincial legislation and, for the last 20 years, part of the correctional landscape of this country.
Thank you.