68. Instruments of restraint - No person shall apply an instrument of restraint to an offender as punishment.

69. Cruel treatment, etc - No person shall administer, instigate, consent to or acquiesce in any cruel, inhumane or degrading treatment or punishment of an offender.

Maltby v. Saskatchewan (Attorney General) - (1982), 2 C.C.C. (3d) 153, 143 D.L.R. (3d) 649, 20 Sask.R. 366 (Sask.Q.B.) [appeal quashed as moot 13 C.C.C. (3d) 308, 10 D.L.R. (4th) 745, 34 Sask.R. 177 (Sask.C.A.)]

- The inmate applicants were being held in a provincial correctional centre on remand pending their trials. They brought an application alleging that they were subjected to cruel and unusual treatment by reason of the use of handcuffs and leg shackles while they were being transported. In dismissing the application, the court held that the fact that, on occasion, inmates taken from the institution are handcuffed and required to wear leg shackles did not involve a breach of s12 of the Charter. If there were no valid reasons for using handcuffs and shackles in a particular case and these were in fact used, then that would or could constitute cruel or unusual treatment, but it was not shown that the practice of the provincial officials in this case was without reason. The evidence indicated that the use of physical restraints was viewed as an extraordinary security measure, employed sparingly, and always with care, discretion and judgment. The views of prison officials and administrators must be accorded wide deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. Such considerations are peculiarly within the province and professional expertise of correctional officials, and in the absence of substantial evidence to indicate that the officials have exaggerated their response to the conditions the courts should ordinarily defer to their expert judgment in such matters.

MacPherson v. R - (1996), 106 C.C.C. (3d) 271, 48 C.R. (4th) 122, 177 N.B.R. (2d) 1, [1996] N.B.J. No.182 (N.B.Q.B.T.D.)

- A prisoner in a provincial jail was granted a habeas corpus application where a court found that he was the victim of the use of unreasonable and excessive force and illegal actions by jail guards. Videotape evidence revealed that while occupying a bare cell, the prisoner repeatedly kicked his cell door in an attempt to get the attention of the guard to allow him to call a lawyer. Several guards then strapped the prisoner for two to three hours face down onto a stretcher and placed a hockey helmet and wire mask over his head. The court found that the prisoner was strapped to the stretcher as punishment for creating a disturbance, rather than for reasons of his own protection or protection of others. It was held that he was a victim of cruel and unusual treatment and arbitrary detention in violation of his rights under s12 and s9 of the Charter. The court then asserted that if M were a federal prisoner subject to the CCRA, the way he was mistreated would also invite consideration of s68 and s69 of that Act.

70. Living conditions, etc - The Service shall take all reasonable steps to ensure that penitentiaries, the penitentiary environment, the living and working conditions of inmates and the working conditions of staff members are safe, healthful and free of practices that undermine a person's sense of personal dignity.

[1992, c. 20, s. 70; 1995, c. 42, s. 17(F).]

R v. James - (1980), 5 W.C.B. 270 (Ont.H.C.J.)

- A civil negligence action was brought by an inmate of a jail, originally charged with rape, when he was badly assaulted by other inmates. The plaintiff alleged reasonable care was not taken as to what location in the jail he would be housed in and, once located there, claimed he was inadequately supervised. In dismissing the action, the court held that the degree of care owed to the plaintiff was to take reasonable care for the plaintiff's safety and to treat him both reasonably and with ordinary humanity. Although perhaps an inmate should be informed upon entering an institution of the options available to him, the decision as to where he would be finally located was an administrative one and not that of the inmate.

Piche v. Canada (Solicitor General) - (1984), 17 C.C.C. (3d) 1, [1984] F.C.J. No.1008 (F.C.T.D.) [affirmed (1989), 47 C.C.C. (3d) 495 (F.C.A.)]

- This was an action for declaration and injunctive relief in regards to alleged overcrowding and the initiation of a program of double-bunking in certain cells. Evidence indicated that the CSC was forced to resort to double-bunking in some cells as a result of an increase in the number of inmates. Testimony was heard at trial from a doctor relating to the damage to the inmates' mental health resulting from double-bunking. In dismissing the action, the court was of the view that the decision to institute double-bunking was a policy decision made to accommodate the overall population in excess of the available facilities. It was a necessary decision fairly arrived at and as such was not open to question. The Charter did not empower courts to substitute their views for those of the prison authorities to properly manage such institutions. The decision did not violate either Section 7 or 12 of the Charter. Section 7 only provides for security against arbitrary arrest and detention. In this case the inmates were already confined under the terms of their sentences, thus, there was no violation of section 7. Nor was there a breach of section 12 of the Charter. The test to be applied here was whether the treatment or punishment was so excessive as to outrage the standards of decency. Although double-bunking was not an ideal situation, the court held that it did not constitute cruel and unusual treatment or punishment contrary to section 12.

Kingston Penitentiary (Range Representative on Administrative Segregation) v. Regional Coroner (Eastern Ontario) - (1989), 38 Admin.L.R. 141 (Ont.Div.Ct.)

- Upon judicial review, the court overturned a coroner's decision that he had no power, at an inquest into the suicide of a mentally ill prisoner, to grant standing to the officially elected representative of the remaining prisoners confined under identical and unique conditions in the same unit. The prisoners asserted that the unique conditions in that particularly restricted prison unit, including the allegedly inadequate supervision and treatments, may have caused the death of the deceased and that the prisoners had a direct interest in the jury's recommendations about the deceased's condition which was uniquely identical to their own. The court held that the coroner erred in law in the interpretation of his jurisdiction. There was a unique identity of legal interest between the deceased and the prisoners who had an extraordinary interest in any recommendations that could be made with respect to the conditions that totally dominated every aspect of their existence. Any recommendations would affect them most directly and specifically.

Williams v. Canada (Commissioner of Corrections) - [1993] F.C.J. No.646 (F.C.T.D.)

- An application for an interlocutory injunction enjoining the CSC from adding double bunks at the Joyceville Institution was dismissed. While a serious question existed, the court held that there existed no irreparable harm and that the balance of convenience favoured the CSC. With respect to the question of irreparable harm, the plaintiff inmate, in his affidavit described the dangers and fears involved in double bunking and expressed the view, that violent protests or extreme violence could result from this practice. However, the affidavit evidence with respect to the prospect of violence was conflicting in the court's view and, in any event, the positions advanced by the plaintiff were speculative at best. Accordingly, the court was not satisfied that there would be irreparable harm to the plaintiffs as a result of the increase in double bunking in the institution. Furthermore, the balance of convenience in this matter was overwhelmingly in favour of the CSC. The evidence indicated quite clearly that the Warden of the institution received extremely short notice that an additional number of inmates would be arriving within a very short period of time. In the circumstances the Warden appeared to have made a reasonable administrative decision. It further appeared that the correctional authorities were making efforts in an attempt to remedy the situation by determining whether any medium security inmates can be transferred to minimum-security institutions and taking the necessary steps to effect such transfers.

Turner v. Burnaby Correctional Centre for Women - (1994), 24 W.C.B. (2d) 250, [1994] B.C.J. No.1430 (B.C.S.C.), 1994 CanLII 1218 (BC S.C.)

- The court did not accept an inmate's argument that the failure to accommodate her baby living with her amounted to a violation of the section 12 Charter prohibition against cruel and unusual treatment. It was held that the separation of mother and child in this case was not caused by official insensitivity or systemic unfairness. Rather, it was directly the product of the inmate's own conduct. The facts that the petitioner was an escape risk and could not have the baby with her in secure custody fall far short of making her placement in secure custody without the baby cruel and unusual treatment or punishment within the test.

71. (1) Contacts and visits - In order to promote relationships between inmates and the community, an inmate is entitled to have reasonable contact, including visits and correspondence, with family, friends and other persons from outside the penitentiary, subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons.

       (2) Visitors' permitted items - At each penitentiary, a conspicuous notice shall be posted at the visitor control point, listing the items that a visitor may have in possession beyond the visitor control point.

       (3) Where visitor has non-permitted item - Where a visitor has in possession, beyond the visitor control point, an item not listed on the notice mentioned in subsection (2) without having previously obtained the permission of a staff member, a staff member may terminate or restrict the visit.

Veysey v. Canada (Commissioner of Correctional Service) - (1989), 39 Admin.L.R. 161, [1990] 1 F.C. 321, [1989] F.C.J. No.1013 [appeal dismissed (1990), 43 Admin.L.R. 316 (F.C.A.)]

- This was an application for judicial review of the CSC's decision to refuse an inmate's participation with his homosexual partner in the Private Family Visiting Program at his institution. The inmate alleged that he applied to participate in the program with his homosexual partner because he wished to maintain their relationship throughout his incarceration, and because he believed that his successful reintegration into society will depend to a very great extent on the continuing support of persons in the community: the applicant's relationship with his partner was his closest and most supportive relationship in the community. In allowing the application, the court was of the view that while sexual orientation is not a prohibited ground listed under section 15 of the Charter, it is an analogous ground recognized by provincial and territorial human rights acts, as well as the House of Commons Parliamentary Committee on Equality Rights. The court held that the inmate's section 15 Charter rights had been violated, in that the CSC's actions amounted to discrimination on the basis of sexual orientation, actions which could not be saved by section 1.

Olson v. Canada - (1996), 107 F.T.R. 81, [1996] 2 F.C. 168, [1996] F.C.J. No.158 (F.C.T.D.)

- This inmate was advised by the Assistant Warden that his access to the media was being restricted so as to reduce his notoriety, in order that he could eventually be transferred to a reduced security facility. The inmate was prevented by the authorities from corresponding with a friend who was a media personality and from sending him material from the two books he had written. The court held that the CSC's actions violated the inmate's rights to freedom of expression and association under paragraphs 2(b) and 2(d) of the Charter, but that these actions were saved under section 1. The court asserted that the measures taken to limit the inmate's rights and freedoms were justified to serve pressing and substantial concerns. Restricting the inmate's access to the media would reduce his personal security risk within the penitentiary and would also form part of his rehabilitation process. The proposed measures were rationally connected to the objective, as the only restriction imposed upon the inmate was in regards to his contact with members of the media. He was not prohibited from communicating with all other members of society. Thus, the measures chosen impaired the inmate's rights and freedoms as little as possible. The actions taken by the CSC met the proportionality test prima facie, since the measures taken did reduce the inmate's media coverage. The restrictions imposed on the inmate's Charter rights were reasonable limits prescribed by law, making them permissible under section 1.

Hunter v. Canada (Commissioner of Corrections) - (1997), 9 C.R. (5th) 120, 134 F.T.R. 81, [1997] 3 F.C. 936, [1997] F.C.J. No.959 (F.C.T.D.) [affirmed 163 D.L.R. (4th) 383 (F.C.A.)]

- This was an application for judicial review of CD 085 that implemented a new inmate telephone system that had as its objective the encouragement inmates to maintain and develop family and community relations, and to limit the use of telephone communications by inmates in the commission of prohibited activities. Authorized call lists technologically prevented inmates from calling any number that had not previously been authorized by the CSC. The proposed system was to have included a voice-over message, advising recipients of an inmate call that the call was from a correctional institution and may be monitored or recorded. The telephone system was held to be in violation of the inmate's section 2(b) Charter rights, but was saved under section 1 of the Charter as a reasonable limit. The voice-over message, however, was not found to be a reasonable limit and was prohibited. In reaching its conclusion, the court reasoned that in order for it to embark on a full consideration of whether the limits at issue were demonstrably justified, they must be "prescribed by law". Whether a CD is a limit "prescribed by law" is an evolving issue. CD 085 is more than an internal guideline. It is a rule made pursuant to CCRA, section 97 and designated as a CD pursuant to section 98. Subsection 71(1) provides for reasonable contact between inmates and family, friends and other persons outside the penitentiary "subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons". Read in conjunction with sections 97 and 98 of the Act, subsection 71(1) is the statutory authority for the Commissioner to make rules and directives with respect to convicts contacting members of the public at large. In addition, sections 94 and 95 of the CCR Regulations necessarily imply the authorization of telephone communications for inmates. There is no plenary discretion evident, but a grant of authority that is to be exercised with reasonable limits under the objectives of security and the safety of persons. Thus, the specific provisions of CD 085 authorizing the call lists and the voice-over were squarely within the ambit of the discretion given by subsection 71(1) in conjunction with its corresponding provisions in the Regulations, and sections 97 and 98 of the Act. No arbitrariness was evident in the manner in which the limits were prescribed. There was no disruption in the chain of statutory authority flowing from the Act and the Regulations to the limits in CD 085. The limits in the CD were "prescribed by law".

Laliberté v. Canada (Correctional Service) - (2000), 181 F.T.R. 276, [2000] F.C.J. No.548 (F.C.T.D.)

- L made an application to participate in the private family visiting program so he could have the opportunity of having intimate relations with M. Both M and L were inmates in the same penitentiary. The court upheld the decision of the CSC to deny the request. In that decision the Assistant Commissioner arrived at the conclusion that the plaintiff could not participate in the private family visiting program as provided in Commissioner's Directive No. 770. Section 70 of the Act provides that personal dignity shall be respected and s71 confers a right on inmates to have relationships with persons in the community. L maintained that the director's refusal to give access to the private family visiting program in order to have a significant relationship in his life infringed his personal dignity and hence contravened s70 of the Act. The court concluded that the institutional head properly denied L access to the private family program. Despite the fact that paragraph 27 of the Directive allowed a visit by a person who has developed a significant relationship with the inmate during the latter's current period of incarceration, the visitor in question must still correspond either to the definition of a "visitor" within the meaning of the Act, to that of a "common-law partner" within the meaning of the Directive or to that of a "person from the community" within the meaning of the Directive. On the facts, M did not meet any of these definitions.

Wedow v. Canada (Correctional Service) - (2001), 2001 FCT 1427, [2001] F.C.J. No.1947 (F.C.T.D.)

- An inmate applied for judicial review where his friend, S, attempted to visit him but was refused entry because of a "positive hit" for cocaine and heroine reading on the institution's Ion Scanner. S was asked to leave and, despite verbal requests, she was not shown or given the test results in writing. The warden later denied further requests by both S and the inmate for the written test results. The central question was whether there was an obligation on the Warden to provide the inmate and S, in writing, the test results of the Ion Scan. In allowing the application, the court held that the Warden was required by law to do so. Section 71(1) of the CCRA entitles inmates to reasonable contact, including visits and correspondence, with family and friends. This right is subject to safety and security measures. This entitlement is reinforced by subsection 91(2) of the Regulations. The reason for refusing entry to S was the "positive hit" on the Ion Scanner, and, in the court's opinion, to be informed in writing of this reason means being given the Ion Scanner reading in writing. In addition the Regulations and the Directive afford the inmate and S procedural fairness rights that were breached in this case. By law, each was required to be promptly provided, in writing, the written test results of the Ion Scanner. "Promptness" in this case means that the inmate and S should have been provided with the written results at the time of the refusal. Failure to do so is contrary to law.

72. Members of Parliament, judges - Every member of the House of Commons, every Senator and every judge of a court in Canada has the right to

enter any penitentiary,

visit any part of a penitentiary, and

visit any inmate, with the consent of the inmate,

subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons.

[1992, c. 20, s. 72; 1995, c. 42, s. 18(F).]

73. Assembly and association - Inmates are entitled to reasonable opportunities to assemble peacefully and associate with other inmates within the penitentiary, subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons.

74. Inmate input into decisions - The Service shall provide inmates with the opportunity to contribute to decisions of the Service affecting the inmate population as a whole, or affecting a group within the inmate population, except decisions relating to security matters.

William Head Institution Inmate Committee v. Canada (Corrections Service) - (1993), 17 Admin.L.R. (2d) 266, 24 C.R. (4th) 399, 66 F.T.R. 262, [1993] F.C.J. No.821 (F.C.T.D.)

- Where the CSC ordered the applicant institution to terminate university programs offered to inmates, the court was unable to agree with the respondent's position that discussions with inmates after a decision is made is sufficient compliance with section 74. In quashing the decision, the court asserted that the heading immediately before section 74 states "Inmate Input into Decisions". The necessary implication of the words in section 74 and the accompanying heading is that the opportunity to contribute must be afforded to inmates before and not after a decision affecting them is made. The only question, then, was whether inmates must be consulted before all decisions affecting them, other than security decisions, are made. The court was of the view that decisions affecting inmates contemplated by section 74 are those that relate to the purpose of the correctional system as set out in section 3 of the Act, and the principles that are to guide the Correctional Service set out in section 4. Paragraph 3(b) expressly states that the provision of programs in penitentiaries to assist in the rehabilitation of offenders is for the purpose of contributing to the maintenance of a just, peaceful and safe society. Paragraph 4(c) provides the respondent is to communicate with offenders about such programs. The university program at issue here appeared to be part of an educational program for inmates, the introduction of which was to assist in their rehabilitation. From the material before the court, it was satisfied that the rehabilitation of inmates was an objective that was more likely to be achieved through the use of educational programs such as the university program than without them. These were the types of programs that the Act, in paragraph 4(c), intended that the CSC communicate to offenders. The court was therefore satisfied that decisions affecting educational programs for inmates in penitentiaries such as the program offered in this case are decisions contemplated by section 74 of the Act. In failing to provide the inmates at William Head with the opportunity to contribute to the decision terminating the university program, the CSC failed to adhere to the requirements of section 74 of the Act and therefore erred in law.

Alcorn v. Canada (Commissioner of Corrections) - (1999), 163 F.T.R. 1, [1999] F.C.J. No.330 (F.C.T.D.) [affirmed F.C.A., 2002 FCA 154, [1999] F.C.J. No.620]

- This was an application for judicial review of a decision of the CSC to implement the Millennium Telephone System in the Pacific Region. The applicants submitted that contrary to section 74 of the CCRA, the inmates had no opportunity to make representations before the implementation of the new telephone system. In dismissing the application, the court asserted that the statutory obligation to consult under this section is limited and does not apply to decisions relating to security matters. The court held that the issue here related to security matters, and in such circumstances, the CSC did not have an obligation to consult the inmates before making the decision to implement the Millennium Telephone System. Furthermore, it appeared on the evidence that the CSC tried to involve the in inmates as much as possible, in the implementation of the system, by consultation with the inmate committees in order to determine the phone numbers to be included on the common access list. It was also demonstrated before the court that the head of the inmate committee had sent a letter to the authorities raising certain problems and explaining their position regarding the implementation of the system in the Pacific region. The evidence indicated that they received a response from the CSC.

75. Religion - An inmate is entitled to reasonable opportunities to freely and openly participate in, and express, religion or spirituality, subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons.

[1992, c. 20, s. 75; 1995, c. 42, s. 19(F).]

Corresponding Regulations: Sections 83-101 Living Conditions