1. Rights and freedoms in Canada - The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Re Maltby et al. and A.G. Saskatchewan et al - (1983), 2 C.C.C. (3d) 153 (Sask. Q.B.)

- An application was made by prisoners on remand in a Saskatchewan provincial correctional centre seeking relief under s24(1) of the Charter claiming that they were being subjected to cruel and unusual treatment contrary to s12 due to the type of programs and facilities available and by the use of handcuffs and leg shackles in certain circumstances and that their right to liberty guaranteed by s7 was infringed by the conditions of the detention. They also claimed that they were subjected to unreasonable search and seizure contrary to s8 of the Charter in being required to undergo strip searches following contact visits and further that their rights to freedom of expression and association were violated by restrictions on visits and access to telephones, that their right to freedom of religion was violated by limited access to chaplains and facilities for religious ceremonies and finally that their voting rights guaranteed by s3 of the Charter were violated because no provision was made for them to vote in a provincial election. The Court dismissed the application save and excepting the declaration that the practice of not allowing them to vote in elections was contrary to s3 of the Charter. In so doing the Court held that while there was an obligation on the court to ensure that the prison administrators were complying with the requirements of the constitution nevertheless the lawful incarceration of remand prisoners necessarily carried with it reasonable limits on the rights they enjoyed in a free and democratic society. The correctional institution must place restrictions and limitations on the rights of remand prisoners in order that sufficient security will ensure that they will remain in custody and will not pose a danger to themselves or to other inmates or staff, and to ensure that the facility is managed properly. The efficient management of a detention facility is a valid objective that may justify the imposition of conditions and restrictions on pre-trial detention that are not intended and do not constitute punishment.

Re Russell et al. and Radley, Chairman, Collins Bay Penitentiary Disciplinary Court - (1984) 11 C.C.C. (3d) 289 (F.C.T.D.)

- On applications for prohibition involving inmate disciplinary offences under s39 of the Penitentiary Service Regulations and ss7 and 11 of the Charter the court considered the provisions of the Penitentiary Act and Regulations in relation to s1 of the Charter and after concluding that the burden or onus of demonstrable justification is to be borne by the party who seeks to limit the pertinent rights and freedoms by reducing their operation or affect in the circumstances, commented generally on the applicability of s1 to prisoners as follows:

"The applicants, undergoing sentences of imprisonment as they are, find themselves confined within and restricted to a very special society which is neither free nor democratic. It is a society within a society. This free and democratic society which is Canada, in common with all other societies, whether free and democratic or totalitarian, protects itself from those who commit serious offences prescribed by its penal laws by segregating the offenders in prisons. Just as the rights and freedoms guaranteed by our constitutional traditions and our Charter aim to protect our people from the possible tyranny of State authority which has always been the notable vice of our species, so also the criminal law and other laws with penal sanctions aimed to protect our people from the predatory tyranny of criminal anarchy which has always been the other notable vice of our species. Until some more apt and humane method of dealing with criminal offenders be discovered or devised, most of the limits imposed on their rights and freedoms and prescribed by penal law are demonstrably justified for protection and deterrence in our society. But neither our constitutional traditions nor our Charter are so insensitively punitive as to strip prison inmates of all rights and freedoms. The applicants are however justifiably denied the plenitude of rights and even some of the fundamental freedoms proclaimed in the Charter. Limits on the freedoms of the press and other media of communication, of even peaceful assembly and of association guaranteed in s2 are surely more easily justified in the prison society than in Canadian society at large. So also mobility rights expressed in s.6 are obviously sharply curtailed with demonstrable justification among prison inmates. Equally, while it is obvious that inmates' rights to life and security of the person proclaimed in s7 are as invulnerable as those of anyone else, they are deprived of their right to liberty after a process of adjudication on proof beyond a reasonable doubt which must be presumed to have been in accordance with the principles of fundamental justice unless and until it be demonstrated to have been otherwise. At the other end of the spectrum of applicability, it is abundantly clear that the right not to be subjected to any cruel and unusual treatment or punishment enunciated in s12 is preeminently a prisoner's right, even though that provision is formulated for 'everyone'.

    Thus, whether or not the Charter be engaged in any particular circumstance is never a matter of all-or-nothing. The structure, formulation and mode of expression of the Charter evince a clear intendment that some of the rights and freedoms apply to all persons at all times, some apply only to those who find themselves in a particular status or plight, as indicated by s11, and some may be limited with demonstrable justification as, for example, where the usual treatment or punishment for criminal conduct is deprivation of liberty."

Jolivet and Barker v Her Majesty the Queen in Right of Canada - (1984), 7 CCC (3d) 431 (BCSC)

- The petitioners complained that their disqualification by s14(4)(e) of the Elections Act from voting in federal elections was in conflict with s3 of the Charter which guarantees that right to all Canadians and asks that it be declared of no force and effect by virtue of s52 of the Constitution Act, 1982. The disenfranchisement of criminal offenders is not justifiable by any supposed need to protect society from the votes of "unfit persons". Nor can it be justified for the protection of society and therefore the use of disenfranchisement for punitive purposes is unconstitutional. The prospect of loss of voting rights is hardly likely to operate as a deterrent to the commission of criminal offences and disenfranchisement holds no hope of reforming offenders. It follows that disenfranchisement of prisoners cannot be justified under s1 of the Charter on grounds of "unfitness" to vote or as the penalty for breach of the ordinary criminal law. It follows that denial of the franchise to prison in- mates can be constitutionally justified only if the exercise of the right to vote by prisoners would be impossible for practical reasons. The expression "right to vote in an election of members of the House of Commons or of a legislative assembly" as used in s3 of the Charter means more than the right to cast a ballot. It means the right to make an informed electoral choice reached through freedom of belief, conscience, opinion, expression, association and assembly -that is to say with complete freedom of access to the process of "discussion and the interplay of ideas" by which public opinion is formed. Denial by the state of the freedoms necessary for the making of a free and democratic electoral choice involves denial also of the sort of right to vote contemplated by the Charter. The restrictions imposed by imprisonment on freedom of the person, the close control which must be maintained by the state over association, assembly and discussion there, and the inevitable interference with the free flow, and circulation of information and ideas, all of which are necessary to preserve prison order and discipline, renders it impossible for prisoners to make the free and democratic electoral choice contemplated by the constitution. The casting of a ballot under such conditions could not, in the context of the Charter, be described as an exercise of the "right to vote". Imprisonment, as a punishment for breach of the criminal law, is clearly justifiable in a free and democratic society. It follows that denial to prisoners of those constitutional rights which, of necessity, cannot be exercised by persons serving a sentence of imprisonment are also justifiable and must be taken to be authorized by s1 of the Charter. The right to vote guaranteed by s3 of the Charter is one of such rights. It is therefore permissible under the constitution for Parliament or a legislature to deny the electoral vote to persons serving sentences of imprisonment in a penal institution.

Levesque v AG Canada et al - (1985) 25 DLR (4th) 184 (FCTD)

- The court held that s3 of the Charter provided prisoners with a right to vote and that that right was being infringed or violated. Citing Gould (infra), the court rejected the argument that administrative or security reasons would be sufficient to curtail the exercise of such a constitutional right. The Crown failed to show that imprisonment constituted a reasonable limit on the right to vote which could be demonstrably justified in a free and democratic society.

     See also Hedstrom v Commissioner of Yukon Territory and Council for Yukon Indians (supra, s3) -Unreported, May 10, 1985, No. SC 164.85 (YTSC), where the court found that s18(1)(c) of the Yukon Elections Act, 1977, which required a 12-month residency, to be in violation of s3 of the Charter and was not saved by s1.

     See also Badger, Piche and Kotyk v AG Canada and Chief Electoral Officer of Canada -Unreported, November 4, 1988 (Man QB) reversed, unreported, November 18, 1988 (Man CA) annotated in detail under s3 of the Charter (infra).

Cadieux v The Director of Mountain Institution and The National Parole Board - (1984) 13 CCC (3d) 330, 41 CR (3d) 30 (FCTD)

- The Policy and Procedure Manual of the National Parole Board issued pursuant to this section cannot be said to be "prescribed by law" as that term is used in s1 of the Charter. This conclusion might be different if the Manual was approved by the Governor in Council as required by s3(6) of the Parole Act. Furthermore, the provisions of the Policy and Procedures Manual pertaining to the cancellation or termination of unescorted temporary absences and the non-disclosure of certain material and the reasons for same was held to be too broad to constitute a "reasonable limit" on s7 Charter.

Latham v Solicitor General of Canada et al - (1984), 12 CCC (3d) 9 (FCTD)

- Where the parole officer and classification officer were in the hearing room with the Board panel members prior to meeting with the parolee and his assistant and claimed that the discussion surrounded confidential police information and relied on this section in not disclosing this information to the applicant to give him an opportunity to respond, the court held that while this section might provide a legally effective limitation on any common law fairness requirement of disclosure, it would not be effective to limit the right which a parolee has under s7 of the Charter. Fairness requires at least an outline being given to the person affected of the allegations being considered by a tribunal in deciding whether to deny that person his liberty. A law which purports to deny even this is not a reasonable limitation within the meaning of s 1 of the Charter guaranteed in s 7 thereof. Section 17 of the Parole Regulations should therefore not be applied in a manner to deny this right. This section cannot be invoked for such purposes.

     See also, Wilson v The National Parole Board- Unreported, January 25, 1985, No. T-8355-82 (FCTD), annotated under s17 of the Parole Regulations.

Belliveau v The Queen - (1984) 13 CCC (3d) 138 (FCTD)

- The provisions of the Parole Act pertaining to mandatory supervision were found to amount to reasonable limits within the meaning of this section. See annotation under s15 of the Parole Act.

Re Evans and The Queen - (1987) 30 CCC (3d) 1 (Ont HC)

- The new authorized gating provisions of the Parole Act, namely, ss 15.1 through 15.6, may be out of conformity with s 7 of the Charter but if so, they are saved by s1 following the criteria set out in R v Oakes (1986) 1 SCR 103, but procedural fairness is still required. This may include a right to call evidence and cross-examine witnesses.

Re Evans and The Queen - (1987) 30 CCC (3d) 1 (Ont HC)

- On appeal, the constitutionality of the new gating ss15.1 through 15.6 of the Parole Act was affirmed. The intent of Parliament to make this legislation retrospective or retroactive is clear. The legislation does discern itself with depriving an inmate of his right to “liberty" within the meaning of s7 of the Charter; but it does not authorize such a deprivation in breach of the "principles of fundamental justice". The sections simply give the Parole Board the power to change the degree of supervision required in circumstances within the legislative guidelines and criteria. They do not change the sentence, nor impose an additional penalty. They do no more than change the manner or condition under which certain inmates would serve the balance of their sentence. However, before such a change can be effected, a procedural and substantive safeguard established by the Act must be complied with. They are designed to ensure a fair procedure and protect against arbitrary determination of rights. The legislative scheme does not violate s7 of the Charter; nor does it authorize the imposition of arbitrary detention. Section 1 of the Charter can be resorted to without hesitation if necessary.

Pilon et al v Yeomans - [1984] 2 FC 932 (TD)

- An application to quash a transfer from medium security to maximum security and for mandamus to compel re-transfer on grounds that the decision violated ss7 and 9 of the Charter or, alternatively, the principles of procedural fairness, was dismissed. The Act or Regulations do not mandatorily require a full-scale hearing as a prelude to an administrative decision to transfer. The applicants did not avail themselves of the opportunity to respond to the notice of transfer. They were fully informed of the reasons for transfer in conformity with the Commissioner's Directives. The administrative decision to transfer the applicants did not constitute, in the circumstances, a deprivation of their right to life, liberty and the security of the person guaranteed by s7, nor did the implementation of the transfer constitute arbitrary detention or imprisonment, contrary to s9. There was no obligation to afford the applicant a hearing with respect to the transfer. Restrictions and limitations placed on prisoners for security reasons such as a transfer to a more secure institution are permissible under s1 of the Charter.

Bryntwick v Canada (National Parole Board) - (1986) 55 CR (3d) 332, 32 CCC (3d) 321 (FCTD)

- A condition imposed on a full parolee which provided a "prohibition from any non-fortuitous meetings or communications with people having a criminal record or with whom you think might have a criminal record" was found to obviously curtail the parolee's s2(d) freedom of association. Nevertheless, the court found that the condition was patently reasonable and imposed no excessive restrictions and that it had a rational basis and stood well within reasonable bounds acceptable and accepted in a democratic society and as such met the tests of s 1 of the Charter.

Weatherall v AG Canada et al; Conway v The Queen; Spearman v Disciplinary Tribunal, Collins Bay Penitentiary et al - (1989) 59 CR (3d) 247 (FCTD)

- The provisions of the Canadian Human Rights Act and the Public Service Employment Act which prohibit discrimination in employment in the public service based on, among other things, sex, do not constitute "reasonable limits prescribed by law" on rights of male inmates so as to justify under s1 of the Charter cross-gender searches. Similarly, sections of the Penitentiary Service Regulations and Commissioner's Directives which have been found, in certain respects, to be in conflict with the Charter are, to the extent that they are unsustainable under ss8, 12 and 15 of the Charter, they are equally unsustainable under s1. Furthermore, Commissioner's Directives cannot be regarded as "law" within the meaning of s1.

R v Rogers - Unreported, December 19, 1990, No. CA012590 (BCCA)

- A condition of probation pursuant to s737(2)(h) of the Criminal Code compelling a person to take psychiatric treatment or medicine was held to be an unreasonable restraint upon liberty and the security of the person, contrary to s7 of the Chatter and could not be justified under s1 except in exceptional circumstances. The court held that other less restrictive means were available to protect the public.

     See also Badger, Piche and Kotyk v AG Canada and Chief Electoral Officer of Canada - Unreported, November 4, 1988 (Man QB); rev'd unreported, November 18, 1988 (Man CA) annotated at p5117 infra.

AG Canada v Weatherall - (1989) 65 CR (3d) 27 (FCA)

- The Federal Court of Appeal varied the lower court's decision by finding that s41 (2)(c) of the Penitentiary Service Regulations infringes a male inmate's s8 Charter right to the extent that it authorizes the strip searching of male inmates in the presence of female corrections staff in non-emergency situations. The court also stated that: "the term 'by law' in section 1 (of the Charter does not include the Commissioner's Directive..."