Thank you for that question.
The change in wording has everything to do with “A Roadmap to Strengthening Public Safety”, the report of the panel that was given to the minister in 2007. I was very blunt last time I was here: I described the document as being “legally illiterate”, by which I meant that in its 200 pages it never once referred to any legal analysis, or to any reference to any decision of the Supreme Court of Canada or any other court, in all the years of the interpretation of the CCRA.
What the roadmap did say was that this principle of the least restrictive measures has been given too much space by CSC and by the courts and that what they recommended was that the standard in the CCRA should be amended so that, instead of “the least restrictive measures”, the wording would be “all appropriate measures”, and I pointed out in a critique of this, as did others, that this is not a standard. That's not a constitutional restraint on the exercise of coercive authority. It's a management tool.
“Appropriate measures”: who can best judge that except a correctional administrator? It's not a standard to be used by legislators, by courts, or by the Correctional Investigator when they inquire as to whether or not correctional authority--the very difficult job of exercising correctional authority, and I make no mistake, it's a very difficult job--is done in accordance with the rule of law and all least restrictive measures.
Now, to their credit, the Department of Justice, when they saw that recommendation, recognized that you can't change the language to that, so what they came up with was the language you have in the bill, “necessary and proportionate”. That is constitutional language. It's two parts of the tri-part Oakes test, and what we're recommending.... And it's true, Mr. Cotler, I think a court likely would...certainly I would argue at a court that “least restrictive measures” is an integral part of proportionality, but why remove it when it's already there in the legislation?
The recommendation we have made of combining that language with the proposed amendment is all three parts of the constitutional standard. It would be a model for human rights legislation everywhere and that's why we are recommending the reinstatement of those words.
But the final point, if I may, is that already--and this is very alarming to me and to others--the commissioner of corrections and other senior officials are telling CSC staff that this bill, in removing the least restrictive measures principle, is in fact in its place incorporating appropriate measures. That's not what the bill does, but it's the message that correctional staff are being given. It's alarming because it completely removes any sense of restraint on the exercise of authority. That's why we recommend that these three words be in fact reinstated into the legislation.