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2 50 Years of Human Rights Developments in Federal Corrections Commemorating the 50th Anniversary of the United Nations Universal Declaration of Human Rights "We respect the dignity of individuals, the rights of all members of society, and the potential for human growth and development". Mission, Core Value One of the Correctional Service of Canada HV 9308 F Human Rights Division Correctional Service of Canad August 1998 LIBRICRY SOUCITCfl CENFR _ At CANADA SEP BiBLIDilitQUE SOLUDITEUR GUERAL CANA > OTTAWA tontar10) MA On

3 F Years of Human Rights Developments in Federal Corrections l'ms` Table of Contents Part One: Overview Introduction Milestones 1 2 Part Two: Fact Sheets 1959 Parole Act and National Parole Board 1960 Canadian Bill of Rights 1972 Aboriginal Elders in Federal Penitentiaries 1972 Abolition of Corporal Punishment 1973 Office of the Correctional Investigator 1975 Standard Minimum Rules for the Treatment of Prisoners (SMRs) 1976 Abolition of the Death Penalty 1977 Independent Chairperson for Adjudicating Disciplinary Matters 1978 Women Correctional Officers in Male Institutions 1980 Martineau and the Duty to Act Fairly 1982 Canadian Charter of Rights and Freedoms 1992 Corrections and Conditional Release Act 1995 Regional Facilities for Women Offenders Part Three: Selected References 29 ' GANAU ' ' '._._., AHD) 8 'C--- opyvight C this does not belong to the Crown. document be obtained from the author for PrOpet authorization must an y intended use n'appartiennent du présent document Les droits d'auteur pas à l'état, Toute utilisation du contenu du présent document doleye,...2t\. aglpfu 312-a-\ \ementParauteur.

4 50 Years of Human Rights Developments in Federal Corrections..._. UNIVERSAL 14 - ; '" ' DÉCLARATION DECLARATTON - ' UNIVIRSRLE -Of IIIItelg,,,., _ DI5- MUMS Items ),' DE MOW«Introduction Fifty years ago, the General Assembly of the United Nations adopted the Universal Declaration of Human Rights. The Declaration proclaims the fundamental freedoms and inalienable rights of all people and is widely regarded as the most influential human rights document of our times. John Humphrey, a Canadian, was one of the principal authors and an instrumental force in guiding the final text through to its adoption by the world community on December 10, The Declaration's recognition that all persons, regardless of their circumstance, "are born free and equal in dignity and rights" is perhaps nowhere more applicable than in the world of corrections. When Canada signed the Declaration, our prisoners were still subject to corporal punishment, to the death penalty and to bread and water diets. Over the past half-century Canada's correctional system has made significant progress in humanizing the incarceration experience for offenders and providing a representative and diverse workforce respectful of employees' human rights. In commemoration of the 50 th Anniversary of the Universal Declaration, the Correctional Service of Canada is celebrating by highlighting and reflecting on 50 years of human rights developments in federal corrections.

5 Celebrating 50 Years of Human Rights: Milestones in Federal Corrections There are many significant human rights developments in the history of federal corrections concerning both employees of the Correctional Service of Canada (CSC) and offenders. The Human Rights Division of CSC considers the following milestones to be some of the most notable accomplishments in commemorating the 50 th Anniversary of the Universal Declaration of Human Rights Parole Act and National Parole Board The Parole Act came into force on February 15, 1959, allowing for the creation of the National Parole Board in the same year. For the first time in Canadian history, parole decisions were determined and administered by an independent, national decision-making body Canadian Bill of Rights The Canadian Bill of Rights, enacted by the Parliament of Canada on August 10, 1960, affirms the dignity and worth of the human person and recognizes and declares fundamental rights and freedoms. Although eclipsed by the Charter of Rights and Freedoms, 1982, the Bill of Rights continues to apply to acts of the federal government Aboriginal Elders in Federal Penitentiaries This year marks the first time an Aboriginal Elder entered a federal penitentiary to conduct a traditional ceremony. Just over twenty years later, two Healing Lodges for Aboriginal offenders were established with an emphasis on traditional spirituality and healing Abolition of Corporal Punishment Corporal punishment such as whipping and strapping was invoked both as a sentence of the courts and as a penalty for institutional offences until Office of the Correctional Investigator The Office of the Correctional Investigator was created in Its primary function is to investigate the complaints of offenders and seek resolution. In 1992, the role of this prison ombudsman was formalized in the Corrections and Conditional Release Act Standard Minimum Rules for the Treatnzent of Prisoners (SMRs) The SMRs are the most significant and comprehensive international instrument recognizing the rights of legally-incarcerated persons. In subscribing to the SMRs in 1975, Canada committed itself to ensuring full compliance and domestic implementation Abolition of the Death Penalty On July 26, 1976, Canada passed a law abolishing the death penalty. The last execution in our history occurred in December All death sentences between these 14 years were commuted. 2

6 1977 Independent Chairperson for Adjudicating Disciplinary Matters The Independent Chairperson (ICP) system was instituted in federal corrections in response to the recommendations of the MacGuigan Report, a Parliamentary inquiry into the Penitentiary Service of Canada. Prior to the introduction of the ICP system, all disciplinary decisions against offenders were made by wardens and CSC employees. This new independent process helps ensure that disciplinary hearings and decisions are fair and equitable Women Correctional Officers in Male Institutions Although women have always worked with female offenders at the Prison for Women, women first began working as correctional officers in federal institutions for male offenders in The first woman to hold the position of Warden in an all-male facility was appointed in As of August 1998, there were 13 women institutional heads in federal penitentiaries Martineau and the Duty to Act Fairly Prior to the landmark case of Martineau v. Mats qui Institution Disciplinary Board, Canadian courts were reluctant to interfere with the decisions of correctional authorities. In its decision, the Supreme Court of Canada reversed this "hands off" approach and for the first time in law articulated that correctional authorities have a duty to act fairly when making decisions concerning the rights of offenders Canadian Charter of Rights and Freedoms Proclaimed into force on April 17, 1982, the Charter of Rights and Freedoms is one of the most significant developments in the protection of human rights and is recognized internationally as a model document. The Charter has had a profound impact in the protection of human rights of both offenders and employees of the CSC Corrections and Conditional Release Act The Corrections and Conditions Release Act was proclaimed into force on November 1, 1992, replacing both the Penitentiary Act and the Parole Act. The CCRA is a progressive and comprehensive code reflecting years of human rights developments Regional Facilities for Women Offenders The establishment of four regional facilities and an Aboriginal Healing Lodge for federally-sentenced women marks a significant change in philosophy for federal corrections in Canada. These new centres are designed to reflect and respond to the needs and realities of federally-sentenced women based on the principles of empowerment, meaningful and responsible choices, respect and dignity, supportive environment and shared responsibility. The new facilities began opening in the fall of

7 Celebrating 50 Years of Human Rights: Milestones in Federal Corrections Parole Act and National Parole Board 1959 In 1959, the Parole Act (PA) was enacted and the National Parole Board was established. It was of course not the beginning of the concept of parole in Canada as early release from prison had been an integral part of our correctional system since the Ticket of Leave Act, The creation of a national parole board is however a significant human rights development in corrections because, for the first time in our history, a system of parole for all federally-sentenced offenders was to be uniformly administered by an independent decision-making tribunal. The Ticket of Leave Act (TLA) remained virtually unchanged since its adoption As the Canadian penal system developed and the population of offenders increased, many problems with the system of leave became evident. The TLA itself, for example, contained no reference to the purpose of early release and it did not have any defined criteria for leave eligibility. Pursuant to the TLA, offenders could be granted early leave from a penitentiary before the end of their sentence at the discretion of the Governor General. In practice, wardens in each institution had the power to make parole decisions leaving the system of early release subject to abuse of discretion and arbitrariness. Moreover, the TLA did not contain any provisions to ensure surveillance of the offender on release and discretion was left with any peace officer to arrest a person on leave who was apparently "leading an idle and dissolute life without any visible means of obtaining an honest livelihood". In response to concerns with the Ticket of Leave system, a Committee was appointed to inquire into the principles and procedures of early release. The Fauteux Committee (1956), as it became known, was very critical of the ticket of leave system and described the TLA itself as "archaic". The Committee emphasized the concept of parole as "a logical step in the reformation and rehabilitation [of offenders] under appropriate legal restraint" and argued that the creation of a national board would be a positive step towards increasing the number of offenders on parole. The enactment of the Parole Act and the creation of the National Parole Board (NPB) in 1959 were direct responses to the recommendations of the Fauteux Committee. The Remission Services of the Department of Justice, which previously had jurisdiction over parole matters, was abolished and the new NPB was given authority to grant, deny, terminate or revoke conditional release based on stated criteria. Significant among the duties of the newly established NPB was a requirement to review the case of every offender serving a federal sentence. This provision meant that all federal offenders, not just those who applied, would be considered for conditional release at some point during their sentence. Viewing parole as a tool of rehabilitation, as urged by the Fauteux Committee, was also emphasized in the Parole Act. 4

8 However, the Parole Act was not without its own problems. Under the original Act, for example, if parolees violated their parole conditions, parole was automatically forfeited with no credit for street time. This meant that the offender was required to undergo a term of imprisonment equal to the portion of the term which remained unexpired at the time parole was granted, considerably lengthening the sentence given by the courts. Moreover, the Parole Act did not provide for any procedural protections for offenders: there was no requirement that the Board interview or meet with applicants before making decisions; reasons for the Board's decisions were not provided to offenders; and there was no right of appeal. With recommendations from various committees appointed to inquire into the parole and penal systems and with developments in the law such as the Canadian Charter of Rights and Freedoms, changes were made to the Parole Act emphasizing both due process and the rights of offenders. Significantly, amendments to the criminal law in 1977 provided that a parolee whose parole was revoked would receive credit towards completion of sentence for time spent at large while on parole. Moreover, offenders were granted the right to appear before the NPB, the right to have reasons given for decisions, the right of appeal, and the right to be represented by counsel. It is also interesting to note that it was not until 1968 that the Parole Act contained an explicit statutory direction to Board members to consider whether the release of an offender constituted an undue risk to society. In 1992, the Parole Act was replaced by the Corrections and Conditional Release Act (CCRA). One of the most significant aspects of the CCRA is an articulation of the purpose and principles of conditional release. As expressed in the CCRA, the object of conditional release is to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens. The first principle to guide Board members in decision-making states that the protection of society is the paramount consideration in the determination of any case. The CCRA also states that parole boards must take the least restrictive determination consistent with the protection of society. Another significant aspect of the CCRA is its recognition of the concerns and rights of victims, allowing for them to be kept informed of an offender's parole status and to attend parole hearings at the discretion of NPB. 5

9 Celebrating 50 Years of Human Rights: Milestones in Federal Corrections Canadian Bill of Rights 1960 The Canadian Bill of Rights was enacted by the Parliament of Canada on August 10, 1960 under the leadership of Prime Minister Diefenbaker, who had been campaigning for the protection of human rights since he became a Member of Parliament in Concern for civil liberties had surfaced during this time partly in response to the atrocities and human suffering which occurred during the Second World War. Further impetus for human rights protection under domestic law came in 1948 with the adoption of the United Nations Universal Declaration of Human Rights which had a clear and significant influence on the Bill of Rights. For example, the original wording of Section 2(b) of the Bill was identical to Article 5 of the Declaration. The preamble of the Bill of Rights affirms the dignity and worth of the human person. Part I declares that there exist in Canada, without discrimination, certain human rights and fundamental freedoms such as the right to equality before the law and equal protection of the law, freedom of religion, speech, assembly and association, and the right to be free from arbitrary detention or punishment. In guaranteeing these rights and freedoms in law for the first time, the Bill of Rights was an important step towards advancing and protecting the human rights of Canadians. The landmark case decided under the Bill of Rights was the 1970 decision in R. v. Drybones. In this case, the defendant challenged a provision of a federal statute as being inconsistent with his right to "equality before the law" as guaranteed in Section 1(b). The Supreme Court of Canada held that the Bill of Rights could have the effect of rendering other federal statutes inoperative in the face of an inconsistency. In this case, a provision of the Indian Act provided for harsher penalties for Aboriginal persons intoxicated off a reserve than for non-aboriginal persons intoxicated in a public place. This provision was clearly found to be discriminatory and rightfully rendered inoperative by the court. A notable articulation of the legal rights of prisoners was expressed in the 1969 case of R. v. Institutional Head of Beaver Creek Correctional Camp. In a disciplinary hearing, a federal inmate claimed that he had been denied his right to a fair hearing as guaranteed in Section 2(e) of the Bill of Rights. In rendering judgement, the Ontario Court of Appeal commented that "an inmate of an institution continues to enjoy all the civil rights of a person save those that are taken away or interfered with by having been lawfully sentenced to imprisonment". The court held that the principles of natural justice had to be observed when the civil rights of a prisoner as a person were impaired and that such decisions were reviewable by the courts. Following this judgement, the Correctional Service of Canada amended some of its policies relating to inmate discipline to provide for better procedural due process. 6

10 Most provisions of the Bill of Rights have been replicated and enshrined in the Canadian Charter of Rights and Freedoms, The Charter, being entrenched in our Constitution, is the supreme law of Canada and applies to both federal and provincial acts of government. However, the Bill of Rights remains in force today and still has application to federal statutes. 7

11 Celebrating 50 Years of Human Rights: Milestones in Federal Corrections Aboriginal Elders in Federal Penitentiaries 1972 Significant advancements have been made during the last tluee decades in relation to the human rights of Aboriginal offenders. This is especially important considering the very high number of Aboriginal peoples incarcerated in Canada. Although constituting less than 5% of the overall Canadian population, Aboriginal men account for approximately 15% of federal inmates while 22% of federally-sentenced women are Aboriginal. The fundamental right to freedom of religion is ensluined in the Canadian Charter of Rights and Freedoms. Offenders of Christian faith have, since the beginning of the penitentiary system, had freedom of religious practice with access to and support from priests and chaplains. It is only more recently, and after some struggle, that Aboriginal offenders won the right to practice traditional Native spirituality behind prison walls. The first time an Elder entered a federal prison to conduct a ceremony was in 1972 in Alberta's Drumheller Institution. This practice has expanded across the Correctional Service of Canada (CSC) and has been supported by federal conectional policy since The right to access traditional Native spirituality is about more than "religion" it encompasses learning about one's culture and healing. With the assistance of Elders, some Aboriginal offenders are able to participate in traditional ceremonies, receive individual counselling and gain a sense of self-identity, self-respect and community. Arguably, access to traditional Native spirituality also holds more prospects for change and growth for some Aboriginal offenders than any other institutional program. In 1992, with the enactment of the Corrections and Conditional Release Act, (CCRA) the right of Aboriginal offenders to have access to traditional spirituality was entrenched in law. As per Section 83 of the Act, Native Elders are now accorded the same status as other religious leaders and various spiritual and cultural practices are permitted to enhance the personal development of Aboriginal offenders. Moreover, Section 80 of the CCRA provides that the CSC shall provide programs designed particularly to address the needs of Aboriginal offenders while Section 81 enables the Solicitor General to enter into bilateral agreements with Aboriginal communities for the care and custody of Aboriginal offenders. The first agreement under this latter provision was with the Prince Albert Grand Council of Chiefs in Saskatchewan to accommodate five Aboriginal offenders at their facility. Also of significant importance is the establishment of two Healing Lodges for Aboriginal offenders. Following recommendations of the Task Force on Federally Sentenced Women (1989), the CSC and representatives from Aboriginal Bands worked 8

12 closely together and officially opened the Okimaw Ohci Healing Lodge for women on August 24, Situated on Nekaneet land near Maple Creek Saskatchewan, this facility is unique in Canada for its emphasis on traditional Aboriginal spirituality and healing. In 1997, the CSC also opened the first federal prison for male Aboriginal offenders. Pe Sakastwe, meaning "new beginning" in Cree, is located on land donated by the Samson Cree Nation at Hobbema, south of Edmonton. Elders at the Lodge integrate traditional values into the centre's programming encouraging self-sufficiency, responsible behaviour, healing and wellness. The last three decades have brought other significant developments concerning Aboriginal *bffenders. During the early 1970s, Aboriginal offenders began organizing Native Brotherhoods and Sisterhoods. These organizations continue today to provide spiritual and cultural support and a sense of community. The Service's policies now stipulate that the institutional authorities must accommodate Aboriginal support systems so that offenders may pursue cultural and spiritual interests. In the early 1970s, a National Advisory Committee was established and incorporated in policy in 1987 and in law under Section 82 of the CCRA in The Native Liaison Support System also was initiated in the 1970s and is the antecedent to the Native Liaison Workers who now facilitate communication between offenders and staff and provide support to visiting Elders. A number of programs and services designed to specifically meet the needs of Aboriginal offenders have also been implemented, including Native Alcohol and Drug Counselling Programs, Native Halfway Houses and cultural awareness and sensitivity training for staff. 9

13 Celebrating 50 Years of Human Rights: Milestones in Federal Corrections Abolition of Corporal Punishment 1972 The abolition of corporal punishment in 1972 as an option of judicial sentencing under the Canadian Criminal Code and as an institutional punishment measure was a significant milestone for the protection of offenders' human rights. Historically, offenders were subject to corporal punishment inflicted by various methods including the strap, whipping with the cat-o' -nine-tails, water hose, bread-and-water diet, paddling, and flogging. Over time, restrictions were placed on when and how these provisions could be administered and certain means and methods of corporal punishment were abandoned altogether. For example, in 1962, Penitentiary Regulations were introduced restricting the use of the strap to a maximum of 15 strokes for 'flagrant or serious disciplinary offences" and, in 1968, a further policy stipulated that the Commissioner of Penitentiaries had to first confirm such an order before it could be administered. Corporal punishment as a penalty for particular criminal offences was similarly restricted over time. An amendment to the Criminal Code in 1954 removed whipping as a penalty for "acts of gross indecency", "assault on sovereign" and "assaults on wife or other female". However, whipping was retained for other offences including rape and robbery. The sentence could be ordered for one, two or three occasions during imprisonment, but the exact time of its infliction was left to the discretion of the prison authorities. It is notable that women and young offenders were not subject to whipping under the Criminal Code. The final decision to abolish corporal punishment altogether came after a progressive decline in the use of this punishment by both the courts and prison authorities and after many recommendations by commissions studying the criminal justice system. Between , there were 333 instances of corporal punishment inflicted on offenders for breaching institutional rules, whereas in 1968, only one occurrence is recorded. It appears that October 15, 1968 was the last recorded application of its use as a disciplinary measure in federal penitentiaries. Instances of offenders being sentenced to corporal punishment by the courts likewise declined: in 1954, for example, corporal punishment was ordered only 14 times. The Fauteux Committee (1956) considered whether the laws concerning corporal punishment should be amended. The Committee concluded that corporal punishment should be entirely removed as a sanction under the Criminal Code but retained under strict conditions as a disciplinary tool in prisons. Thirteen years later, the Ouimet Committee (1969) was much stronger in its condemnation of corporal punishment stating that the imposition of such a penalty is "brutal and degrading both to the recipient and the person imposing it". In finding corporal punishment contrary to modern prison philosophy and practice, it recommended that Parliament abolish corporal punishment as 10

14 a sanction in the Criminal Code and as a disciplinary measure in prisons. The Commissioner of Penitentiaries testified before the Committee that he would not have any objection to abolition of corporal punishment in prison discipline, and commented that "ultimately, society reaps more violence from [the offender] than it inflicted on him". 1 1

15 Celebrating 50 Years of Human Rights: Milestones in Federal Corrections Office of the Correctional Investigator 1973 The Office of the Correctional Investigator plays a very important role in protecting the human rights of offenders. The Office was established in 1973 under the Inquiries Act as a direct result of a commission of inquiry's recommendation for an external grievance body to independently review offender complaints. Inger Hansen, then a lawyer with the Public Service of Canada, was appointed as the first Correctional Investigator on June 1, In 1992, as part of legislative reforms to the correctional system, the Office was formalized in permanent legislation in Part III of the Corrections and Conditional Release Act (CCRA). As outlined in Section 167 of the CCRA, the primary function of the Correctional Investigator is to conduct investigations into the problems of offenders related to the operations and activities of the Correctional Service Canada (CSC) and promote resolution. Inquiries can be initiated through direct complaints by offenders, on request of the Solicitor General or at the Office's own initiative. During the course of their duties, investigators have full discretion to determine when and how the inquiry will be conducted and have unfettered access to the institutions. They can hold hearings, interview offenders, meet with CSC staff and examine documents. The number of complaints has dramatically increased since its first year of operation: in , 782 complaints were made whereas 6366 complaints were filed in the term. Areas of systemic offender complaint include conditions of the institution, segregation, transfers, double-bunking, availability of and access to programming and health care. The Office of the Correctional Investigator also has a central role in reviewing policies and procedures of the CSC associated with the areas of offender complaints and ensuring that systemic issues are identified and appropriately addressed. Investigators also make scheduled and unannounced visits to penitentiaries. It is important to note that the Office complements, but does not replace, the Service's internal offender complaint and grievance procedures or the role of the courts as avenues of redress. Consistent with the traditional role of an ombudsman, the Office's recommendations are not legally binding on the Service. Instead, the ability of the Office of the Correctional Investigator to effect change comes from its capacity to thoroughly and objectively investigate a wide spectrum of administrative actions and its position as an independent oversight agency. Investigators are neither agents of the CSC nor advocates of every individual complainant; their role is to inquire into complaints, review CSC's activities and take appropriate action. The Office is required to present its findings and recommendations to the CSC and if, in its opinion, the Service does not respond adequately, it can make a report directly to the Solicitor General. As required by legislation, the Investigator must publish an annual report and may also submit special 12

16 reports throughout the year to the Solicitor General who is in turn required by law to present each report to Parliament. Since its enactment, the presence of the Correctional Investigator has been an important part of safeguarding the rights of offenders. Its report concerning events at the Prison for Women in 1994, for example, was instrumental in initiating a Commission of Inquiry into the facility. In the final report of the Commission, Justice Louise Arbour commented: "the Office of the Correctional Investigator is in a unique position both to assist the resolution of individual problems, and to comment publicly on the shortcomings of the system. Of all the internal and external mechanisms or agencies designed to make CSC open and accountable, the Office of the Correctional Investigator is by far the most efficient and the best equipped to discharge that function." 13

17 Celebrating 50 Years of Human Rights: Milestones in Federal Corrections United Nations Standard Minimum Rules For the Treatment of Prisoners 1975 The most widely known, accessible and comprehensive international document regulating prison conditions and prisoner treatment around the world is the United Nations Standard Minimum Rules for the Treatment of Prisoners (SMRs). Since the SMRs embody a greater level of practical detail about how prisoners should be treated than is generally to be found in international conventions and covenants, these model standards have become an enormously important point of reference for defining what constitutes humane treatment in the prison setting. Although not a legally enforceable human rights instrument per se, the SMRs have been used by national and international courts and non-governmental human rights organizations to provide guidance in inteipreting binding human rights norms and standards, including the International Covenant and Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The SMRs were adopted in 1955 at the first United Nations (UN) Congress on the Prevention of Crime and the Treatment of Offenders and approved by the United Nations Economic and Social Council (ECOSOC) in ECOSOC recommended that states adopt the rules and conduct compliance surveys every five years. It was not until the Fifth UN Congress in 1975, however, that Canada's Delegation officially endorsed the SMRs, by agreeing to consider embodying them within both federal and provincial legislative frameworks. Canadian practice in both law and policy indicates a broad acceptance of the document's underlying principles and standards. Canadian law and correctional policy have taken into account these essential UN rules: living accommodations which are appropriately heated, ventilated and cleaned; nutritional food; appropriate bedding and clothing regularly laundered; regular exercise; access to the same standard of medical services as the general public enjoys; access to books and other educational materials; special requirements for women prisoners covering pregnancy, childbirth and child care; prohibition of corporal punishment, solitary confinement and other cruel, unusual, and or degrading treatment;respegt-for: 4 and cultural_differences; opportunities to engage in meaningful work, programs religious and activities that ha-v-e some relevance to life outside prison; opportunities to remain in contact with friends and family; and the right to be reasonably prepared for eventual return to the community. Conectional authorities must provide for all of these things - and more - if they are to be found in compliance with the basic minimum standards to which the world community is expected to adhere. When the 95 individual articles that comprise the SMRs are reduced to their essence, three fundamental human rights principles clearly emerge. Firstly, a prisoner's 14

18 sense of dignity and worth as a human being must be respected and maintained through the entire course of their imprisonment. Secondly, the suffering that results from the loss of liberty and freedom by the fact of incarceration is punishment enough. Finally, prisons should not be punishing places; rather, they should help prisoners rehabilitate themselves. The fact that many states, including Canada, have incorporated these set of principles and rules in the legislative design of their correctional systems may be taken as evidence that the SMRs are now considered an essential element of international and, indeed, domestic human rights standards. Still, 40 years after their initial adoption, certain rules have not been fully implemented and remain a challenge to correctional authorities.«for instance, Canada still practices "double-bunking" of inmates in cells designed for one; permits some young offenders to serve their prison sentences in adult institutions; does not use the SMRs in the training of correctional personnel, and; does not distribute the rules to every prisoner upon their initial reception. 15

19 Celebrating 50 Years of Human Rights: Milestones in Federal Corrections Abolition of the Death Penalty 1976 The abolition of the death penalty is a significant development in the advancement of human rights. Everyone's right to life is enshrined in Section 7 of our Canadian Charter of Rights and Freedoms. This fundamental right is also enunciated in Article 3 of the Universal Declaration of Human Rights and Article 6 of the International Covenant on Civil and Political Rights. The struggle for abolition of the death penalty was a long one and has always met with strong opposition. Although the first of many attempts at abolition was made as long ago as 1914, the erosion of the death penalty effectively began in At that time, the Diefenbaker government that had enacted the Canadian Bill of Rights a year earlier, introduced degrees of classification for murder under the Criminal Code. During the 1960s, death sentences were also being commuted at an unprecedented rate. In fact, the last_executionincanadian7history -wn-lpecmber :-11-,19.6 when two people were fràïied-fof-murdef.-fr'om- this time forward, all death sentence's were commuted by the government of the day. The first serious discussion on the abolition of the death penalty did not take place until1-966,1 After days of parliamentary debate, a motion for abolition was ultimately fëré-'di6cf. It was after this defeat that in 1967, under Prime Minister Lester B. Pearson, the Government of Canada passed legislation temporarily suspending the death penalty for all crimes of murder except the killing of a police officer or a prison guard in the execution of their duties. During this trial period, all death sentences for murder were automatically commuted. On December 29, 1972 the five-year moratorium ended. On May 29, 1973 another Bill was passed extending the moratorium for another five years. Before this suspension ended, the Government of Pierre Trudeau introduced Bill C-84 proposing the abolition of the death penalty. After another lengthy debate and a free vote in the House, the Bill was passed and became_ 1aw_.on4u1y_26,,1976j Parliament again reaffirmed its commitment to abolish the death ftï'héii'i motion to reintroduce it was defeated during a free vote in the House of Çomin9PS,j11-1,987,7, 16

20 Celebrating 50 Years of Human Rights: Milestones in Federal Corrections Independent Chairperson to Adjudicate Disciplinary Proceedings 1977 Justice for inmates is a personal right and also an essential condition of their socialization and personal reformation. It inzplies both respect for the persons and property of others and fairness in treatment. The arbitrariness associated with prison life must be replaced by clear rules, fair disciplinaty procedures and the providing of reasons for all decisions affecting inmates. Principle 12, MacGuigan Report, 1977 The establishment of the Independent Chairperson (ICP) system to adjudicate disciplinary proceedings is a notable achievement in the history of federal corrections. ICPs were first appointed in 1977 in response to the recommendations of the MacGuigan Report, a Parliamentary inquiry into the Penitentiary Service of Canada. Echoing previous committees and studies, the MacGuigan Report criticized the Warden's Court system of adjudicating disciplinary matters, in which wardens and their delegates made decisions, as lacking both independence and impartiality. Additionally, disciplinary hearings were also denounced for failing to comply with procedural rules and fairness. In response, it was recommended that independent persons external to the institution be appointed to uphold the appearance of justice and to ensure that disciplinary hearings were fair and equitable. The newly established Correctional Investigator was the first to recommend that discipline courts be directed by external chairpersons in her annual report of In response to the Correctional Investigator's recommendations, a Study Group on Dissociation was commissioned by the Solicitor General to inquire into the use of dissociation as a form of institutional disciplirie. The Chair of the Study Group, James Vantour, reported that offenders generally viewed the disciplinary hearing with disrespect and bitterness. Although there were many complaints concerning the lack of compliance with procedural rules and fairness, Vantour stressed that the issue of greatest concern to offenders was the composition of the disciplinary board and the actual hearing itself. Since the chair of the hearings was also the warden of the institution, they were seen as representing institutional interests and biased against the offender. Vantour concluded, "the present composition of the disciplinary board prohibits the appearance of justice" and recommended that ICPs be appointed to adjudicate serious disciplinary hearings and apportion sanctions. Legal scholar Michael Jackson made similar findings and recommendations a year prior to the Vantour Report. In his independent study, Jackson reported that offenders referred to the disciplinary hearing process as a "Kangaroo Court" and often pleaded guilty to the offence simply to avoid prolonging the proceedings. Jackson noted that the dominant feature of the disciplinary proceedings was a presumption of guilt and not innocence. According to Jackson, much of the evidence admitted in the proceedings was based on hearsay and rumor, and some decisions were taken on the basis of the 17

21 warden's previous knowledge and experience with the offender instead of the offence and evidence at issue. A final call for the appointment of ICPs cam from the MacGuigan committee in In addition to reiterating the concerns expressed in earlier reports, MacGuigan emphasized that employees of CSC were also dissatisfied with the disciplinary process because it took too long after a disciplinary charge was laid to have it addressed. It was further noted that some institutional directors had expressed a desire to be relieved of the obligation of chairing disciplinary hearings and were supportive of an independent process. In concluding that the present system was "neither particularly just nor particularly efficient", MacGuigan stated that "independent chairpersons for disciplinary hearings are required immediately as a basic demand of justice at all penitentiary institutions of Canada". The MacGuigan Report was very influential in corrections and many of its recommendations, including the establishment of the ICP system, were instituted. The first ICPs to preside over disciplinary courts in maximum-security institutions were appointed in December of By 1980, CSC had extended the system to mediumsecurity institutions and subsequently to all offenders facing serious charges. Today, ICPs are responsible for determining whether the offender is guilty of an offence, for presiding over all aspects of the disciplinary hearing and for imposing appropriate sanctions. 18

22 Celebrating 50 Years of Human Rights: Milestones in Federal Corrections Women Correctional Officers in Male Institutions 1978 As the United Nations has commented, "Women's Rights are Human Rights". Indeed, gender equity is an essential part of most contemporary struggles for human rights. A crucial component of this work is, of course, ensuring that women are no longer excluded from particular employment opportunities. Since the inception of the Prison for Women in 1934, women have always worked in the penitentiary service. However, women were excluded as correctional officers from working in institutions for male offenders until The Canadian Penitentiary Service (as Correctional Service of Canada then was) had an exemption from the Public Service Employment Act and exclusively hired men for male institutions and women for female facilities. Prompted by complaints from candidates being denied job opportunities, the Public Service Commission announced its intention to review the justification for the restriction. The Commission's recommendation was that the restriction be removed and positions opened to both women and men, a direction that was supported by recommendations of a Parliamentary Sub-Committee in 1977 and the Canadian Human Rights Commission. The decision to gradually open the field to women in all-male correctional institutions was met with some internal resistance within the Service. Concerns ranging from sex-based stereotyping to the privacy of offenders were met with by studies to identify and address potential problems. A pilot project to determine the best way to integrate women into positions historically held exclusively by men was initiated in the Prairie Region. For the first time in Canadian history, eight women were hired in 1978 as correctional officers for Saskatoon's Regional Psychiatric Facility. Based on this pilot experience, a decision was made in 1980 to proceed with the hiring of female conectional officers in all medium and minimum-security federal prisons. By 1984, approximately 10% of correctional officers were women. As of 1998, the percentage of women in these roles has increased to 22%. In terms of management, women first started entering operational positions exclusively held by men in In that year, the first woman appointed the position of Superintendent at the Prison for Women, Isabel Macneill, essentially fulfilled the same duties as her supervisor, the Warden for Kingston Penitentiary. It was much later that the position officially changed to the higher status of a warden. The person credited as the first female warden in an all-male institution in Canadian history was Mary Dawson. Ms. Dawson began her career in the penitentiary service as a secretary in 1967 and was appointed to the position of Warden in an all-male medium security institution in.1980 As of August 1998, there are 13 women institutional heads in federal penitentiaiie-c - 19

23 1978' was also the year that the Canadian Human Rights Commission began - operatt6iii. The Commission is an independent body that reports to Parliament through the Minister of Justice. Pursuant to its enabling legislation, the Canadian Human Rights Act, the Commission provides an avenue of redress to employees of the federal government or agencies that are federally regulated who allege discrimination on the basis of eleven prohibited grounds including race, national or ethnic origin, sex, disability, sexual orientation or age. The Commission is also responsible for promoting awareness on human rights issues and ensuring that workplace environments are free from discrimination. Moreover, the Commission has the authority to conduct employment equity audits pursuant to the Employment Equity Act and the ability to enforce coffpliance with employment equity standards. 20

24 eau, Celebrating 50 Years of Human Rights: Milestones in Federal Corrections Martineau and the Duty to Act Fairly 1980 The 1980 decision of the Supreme Court of Canada in Martineau v. Mats qui Institutional Disciplinary Board (No.2) is of significant importance to the development of human rights in corrections. Prior to this benchmark case, Canadian courts exhibited a marked reluctance to interfere with the activities and decisions of prison administrators. As a result of this judicial reticence, offenders had few le all defined rihtsjo duî. rocess and natural. Offenders could, as the courts oun, ose earnea remission tun wit ou owing t e evidence used against them, be transferred to a higher-security institution across the country without knowing why and be subject to long periods of dissociation at the warden's discretion. In Martinerni eme 's "ha s " d for the first ti e in correctional 6wdeciared t at prison a on ies had a dut y when making dec. s concerning the rihis of efferlea, n R. v. o osky, decided a year artm ré upreme Court furt er illus=its willingness to interfere with correctional decisions when it stated that persons confined to prison retains all of their civil rights, except those necessarily limited by the nature of incarceration or those expressly or implicitly taken away by law. The duty to act fairly was first officially recognized in Canada in 1979 in the case of Re Nicholson and Haldiman-Norfolk Regional Board of Commissioners of Police. Nicholson was a probationary police officer who was discharged a fter fi fteen months of service without being provided reasons and without any opportunity to respond or make submissions to the Board of Commissioners. On appeal to the courts, he argued that the Board did not act fairly. In a decision that changed the landscape of administrative law, the Supreme Court of Canada proclaimed that the Board of Commissioners had a duty to inform Nicholson of the reasons for his dismissal and to provide him with an opportunity to respond. It was this decision that formed the basis for the Court's decision in Martineau a year later. Martineau involved a challenge by two offenders against their conviction for a disciplinary offence in which they were sentenced to fifteen days in dissociation on a restricted diet. Relying on Nicholson, the Supreme Court determined that prison administrators have a general duty to act fairly when making decisions affecting the rights of offenders. In this case, it was found that the Institution abreached its dziteào provide a fair hearin. Canadian courts have had many opportunities to further define and expand upon the duty to act fairly since it was initially recognized in Nicholson and Martineau. In essence, fairness can now be described as a flexible concept that comprises various rights and obligations which, to varying degrees, must be upheld. As it was stated in Martineau, "the content of the principles of natural justice and fairness in application to the 21

25 individual cases will vary according to the circumstances of each case". In the field of corrections, the duty to act fairly applies to all administrative decisions that affect an offender's liberty, including determinations regarding administrative segregation, involuntary transfers, parole decisions and discipline. The Supreme Court of Canada has also made it clear in Cardinal v. Dir. of Kent Institution, that the duty to act fairly exists whenever the "rights, privileges and interests" of offenders are at stake. Substantially, the duty of fairness has been found to include the right to be given notice of the allegations, an account of the information being considered by the decision-maker, sufficient time and opportunity to respond to the allegations, the right to be heard, the right to a hearing free of bias, and the right to be given reasons for the final decision. Depending upon the nature of rights, privileges and interests at issue, the duty of fairness may also include the right to legal assistance and the right to a full hearing. New legislation governing corrections and conditional release, the Corrections and Conditions Release Act (CCRA), was passed in For the most part, the CCRA incorporated the common law duty to act fairly as it had developed up to that point. For example, in most instances, the CCRA and the Corrections and Conditions Release Regulations clearly state the rights of the offender and specifically outline the appropriate procedural safeguards and degree of fairness to be applied. It is also of significance to note that the general duty imposed on administrative bodies to act fairly is now supplemented by Section 7 of the Canadian Charter of Rights and Freedoms which guarantees the "right to lifè, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles offundamental justice". 22