In 1977, the sub-committee on the Penitentiary System in Canada of the Standing Committee on Justice and Legal Affairs,a committee composed of representatives from all political parties in Canada, made its extensive and unanimous report to Parliament. In Chapter VII of their report entitled "Justice Within the Walls", commencing at paragraph 411, the Committee concluded as follows:

    There is a great deal of irony in the fact that imprisonment --the ultimate product of our system of criminal justice --itself epitomizes injustice. We have in mind the general absence within penitentiaries of a system of justice that protects the victim as well as punishes the transgressor; a system of justice that provides a rational basis for ordering a community --including a prison community --according to decent standards and rules known in advance; a system of justice that is manifested by fair and impartial procedures that are strictly observed; a system of justice that proceeds from rules that cannot be avoided at will; a system of justice to which all are subject without fear. In other words, we mean justice according to Canadian law. In penitentiaries, some of the constituents of justice simply do not exist. Others are only a matter of degree --a situation which is hardly consistent with any understandable or coherent concept of justice.

     The Rule of Law establishes rights and interests under law and protects them against the illicit or illegal use of any power, private or official, by providing recourse to the courts through the legal process. The administrative process, however, may or may not protect these things, or may itself interfere with them, depending on the discretion of those who are given statutory administrative power. In penitentiaries almost all elements of the life and experience of inmates are governed by administrative authority rather than law. We have concluded that such a situation is neither necessary for, nor has it resulted in, the protection of society through sound correctional practice. It is essential that the Rule of Law prevail in Canadian Penitentiaries

     Through serious criminal activity a wrongdoer loses his claim and his right to remain within and associate with the law-abiding community. Under no circumstances, however, can he be allowed to lose his claim or his right to justice. An individual may withdraw himself from the wider social order through grave misconduct, but not from the order of reason that constitutes justice. Both the responsibilities and the protection of the individual that inhere in the concept of justice must prevail in every place and in every situation under the flag of Canada.

     We suggest that it would be both reasonable and appropriate to proceed in such a way as to allow a much greater scope for judicial control over official activity and the conditions of correction in a reformed penitentiary system than is now feasible. Assuming that the system is definitive in its commitment, clear in its intentions and effective in its prescriptions, then the nature of the task remaining to be done by the courts in ensuring that the Rule of Law prevails within penitentiaries should not be disproportionate to what they do outside prison walls on an ongoing basis. Abuse of power and denial of justice are always possible under any system, no matter how well conceived or organized it may be. These things are felt no less keenly in prison than elsewhere, and their consequences in a penitentiary setting are often far more severe.

     Justice for inmates is a personal right and also an essential condition of their socialization and personal reformation. It implies both respect for the person and property of others and fairness in treatment. The arbitrariness traditionally associated with prison life must be replaced by clear rules, fair disciplinary procedures and the providing of reasons for all decisions affecting inmates.

    The Rule of Law was imported into our Canadian Constitutional System by the preamble to the British North America Act(now known as the Constitution Act, 1867) where it states that Canada is to have a constitution "similar in principle to that of the United Kingdom". On April 17th, 1982, the Constitution Act, 1982 (Canadian Charter of Rights and Freedoms) was proclaimed in force and by its preamble provides that "Canada is founded upon principles that recognize the supremacy of God and the Rule of Law. Professor A.V. Dicey in his classic treatise Introduction to the Study of the Law of the Constitutionsets out the following elements constituting his definition of the "Rule of Law":

The supremacy of regular law as opposed to the influence of arbitrary power, excluding the existence of arbitrariness, prerogative, or even wide discretionary authority on the part of the government;

Equality before the law, excluding the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens;

The law of the Constitution is not the source but the consequence of the rights of individuals as defined and enforced by the courts.

    These elements of the "Rule of Law" have received judicial approval by our highest court, the Supreme Court of Canada, on at least one occasion, and, have been restated in terms of a modern context by Professor H.W. Jones, writing in the Columbia Law Review as follows:

In a decent society it is unthinkable that government, or any officer of government, possesses arbitrary power over the person or interests of the individual;

All members of society, private persons and government officials alike, must be equally responsible before the law; and

Effective judicial remedies are more important than abstract constitutional declarations in securing the rights of the individual against encroachment by the state.

    Prior to the coming into force of the Canadian Charter of Rights and Freedoms on April 17, 1982 and its equality section (s15) on April 17, 1985, the Canadian Constitution was primarily an unwritten one. The Canadian legal system was based on the British common law tradition and the citizen, for the protection of his basic civil liberties, relied primarily on this unwritten part of the Constitution, "the consequence of the rights of individuals as defined and enforced by the courts" or the "effective judicial remedies" that secure "the rights of the individual as against encroachment by the State". The use of government power, given by law, affecting the rights, privileges or interests of the individual citizen, and the abuse of such power, contrary to law, thereby depriving the individual citizen of his civil liberties as determined by an independent judiciary, define for the citizen the extent of his civil liberties. Though this tradition continues, to some extent, the Charter has essentially codified or committed to writing a good deal of the previously unwritten part of the Constitution, in addition to setting out some completely new constitutional provisions, and now compels a completely fresh analysis of the rights of individuals and the use and abuse of power in Canadian society within the framework provided by the Charter itself.

    Section 52 of the Charter provides that "the Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." Unlike the Canadian Bill of Rights, the Charter applies not only to the Parliament and government of Canada and all matters within its authority, but also to the legislatures and governments of each province in respect of all matters within their authority. Parliament or a legislature of a province, may, by virtue of s33, expressly declare that an act of Parliament, or of the legislature, as the case may be, shall operate notwithstanding s2 or ss7 through 15 of the Charter.Such declarations are valid for five years, subject to re-enactment for renewable five-year terms. The Charter further provides that its guarantees of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada; that notwithstanding anything in the Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons; and that nothing in the Charter extends the legislative powers of any body or authority. By s24(1), anyone whose rights or freedoms, as guaranteed by the Charter have been infringed or denied, may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. By virtue of subsection (2), where a court concludes that evidence has been obtained in a manner that infringed or denied any of the rights and/or freedoms guaranteed by the Charter, the court shall exclude the evidence if it is established that, having regard to all the circumstances, the admission of the evidence in the proceedings would bring the administration of justice into disrepute. Thus, not only will a law that is inconsistent with the Charter be struck down by the courts, but also a remedy is provided in the courts when the application of a law or the exercise of a power given by law, results in a violation of the rights and freedoms guaranteed. Though most, if not all, of the provisions of the Charter will have an influence or affect on prison law generally, two of the most important and fundamental provisions are the following:

s.1.     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.

s.7.     Everyone has the right to life, liberty and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

    Sections 8 through 14 of the Charter address specific deprivations of the "right" to life, liberty and the security of the person in breach of the principles of fundamental justice and consequently, a violation of any of those sections is also a violation of section 7. Section 8 provides a right to be secure against unreasonable search and seizure. Section 9 provides a right not to be arbitrarily detained or imprisoned. Section 10 provides certain rights on arrest or detention to be informed promptly of the reasons, to retain and instruct counsel without delay and to be informed of that right and to have the validity of the detention determined by way of habeas corpus. Section 11 sets out numerous specific rights pertaining to persons charged with an offence. Section 12 provides a right not to be subjected to any cruel and unusual treatment or punishment. Section 13 provides protection against self-incrimination in subsequent proceedings and s14 provides essentially a right to an interpreter. It has been held that these sections are illustrative of the meaning of "principles of fundamental justice" in criminal or penal law.

    Yet another important section of the Charter is s15 which was only proclaimed in force on April 17,1985. That section reads as follows:

s.15.     (1) Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and. in particular, without discrimination based on race, national or ethnic origin, col. our, religion, sex, age or mental or physical disability.

             (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups, including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

    Because any consideration of crime and punishment quite understandably evokes subjective emotional responses, it is of fundamental importance that these basic principles of our constitutional system be constantly borne in mind throughout any study of the law pertaining to prisons and prisoners.

    The study and practice of the law relating to prisons involves an examination of the consequences of the imposition of the punishment of imprisonment upon conviction for an offence, not necessarily "criminal", in the constitutional sense, by a court of law. The sentence imposed by the court must be a lawful one and it must be administered according to law. If it is unlawful and carried out otherwise than in accordance with the law, the law itself will provide a remedy to curtail any unlawfulness and ensure compliance with the rule of law.

    As with nearly all areas of law, determining the lawfulness or otherwise of a prison sentence or its administration involves the study of freedom and liberty and the extent of its deprivation or reduction or preservation by Parliament and the legislatures by their enactment of statute law and its subsequent interpretation by the courts in the circumstances of each case. Although perhaps trite in law, it is important to remember in practice, that the concepts of freedom and liberty are not absolute but limited by law and therefore relative to the circumstances. Just as the general freedom and liberty of the citizen in society at large is not absolute, but limited by law, the prisoner, upon being sentenced to prison, has his or her general liberty or freedom reduced to a further extent and the degree or extent of this reduction must be determined by an examination of the legislation governing his or her incarceration. Though general liberty is reduced upon imprisonment, there remains a certain residual freedom or liberty within the general population of the prison which in turn might, in certain circumstances, be further reduced by the Warden by the imposition of solitary confinement for the good order of the institution or upon conviction for a disciplinary offence. Similarly, in certain circumstances, the Parole Board is permitted to increase that general freedom or liberty to a certain extent by granting conditional release in the form of day parole or full parole and to then reduce that conditional freedom or liberty by the process of suspension and revocation of parole. Various other forms of conditional release also exist, some of which are vested in the Parole Board and others are given by statute or delegated to the Warden or other individuals or tribunals within the prison administration. A cursory glance through the provisions of the Corrections and Conditional Release Act and its Regulations (Formerly the Penitentiary Act and its Regulations) will disclose a multitude of different powers affecting the rights, privileges and interests of prisoners, many of which can be said to be affecting a "liberty" interest or affecting "freedom". Many prisoners, on being sentenced, are initially placed in maximum-security prisons. Through the classification process and through various other factors, such as participation in any programs, good behaviour and so on, the prisoner might be transferred to medium security and then to minimum security. Conversely, a prisoner might be returned to maximum or even sent to a special handling unit (a special prison within the prison) or simply to a segregation unit within the prison that he is presently confined (a prison within the prison). In sum, though imprisonment per se clearly affects physical freedom and liberty, the administration of the sentence involves a continuum or sliding scale of relative, residual freedom and liberty that is affected throughout by the statutory powers vested in the prison and parole administration.

    It follows that though the civil liberties of prisoners are generally somewhat less than that of the ordinary citizen, as a matter of law, prisoners continue to enjoy certain civil liberties, having had some extinguished, some reduced and some new ones given to them as a result of their particular status. An examination of the use and abuse of power by correctional authorities affecting these liberties, serves to define the extent to which the state or government can affect the liberties of the citizen, who, as a lawbreaker, is considered the person at the bottom of the legal hierarchy. In other words, the study of the law relating to prisoners and the practice of the enforcement of the rights, privileges and interests of prisoners, benefits the ordinary citizen in society by defining the extreme limits of his civil liberties. Having said that, however, it should also be remembered that many of the principles of law applicable to ordinary citizens are equally applicable to prisoners. These principles of law do not become inapplicable to an individual simply because he has acquired the status of a prisoner. Prison law involves not only a determination of the "rights" of prisoners or simply their privileges, interests or legitimate expectations, but more importantly, it involves ensuring that individuals or public bodies exercising legal powers given by statute which will necessarily affect an individual's rights, privileges or interests are compelled to exercise those powers in accordance with their jurisdiction. As Dickson, J (as he then was) said in his judgment in Martineau v Matsqui Institution Disciplinary Board (No. 2):

    When concerned with individual cases and aggrieved persons, there is the tendency to forget that one is dealing with public law remedies, which, when granted by the courts, not only set a right, individual injustice, but also ensure that public bodies exercising powers affecting citizens heed the jurisdiction granted them. Certiorari stems from the assumption by the courts of supervisory powers over certain tribunals in order to assure the proper functioning of the machinery of government. To give a narrow or technical interpretation to "rights" in an individual sense is to misconceive the broader purpose of judicial review of administrative action. One should, I suggest, begin with the premise that any public body exercising power over subjects may be amenable to judicial supervision, the individual interest involved being but one factor to be considered in resolving the broad policy question of the nature of review appropriate for the particular administrative body.

    It is now clear in prison law that a prisoner continues to enjoy all those rights, privileges and freedoms that he enjoyed as a citizen, save to the extent that they are expressly or by necessary implication taken away by the governing legislation. Nevertheless, extremely broad powers have been given by Parliament to the Solicitor General and the Commissioner of Corrections, and by the Cabinet (Governor in Council) to the various regional directors and institutional heads and their deputies, to affect whatever rights, privileges or freedoms a prisoner continues to enjoy. The delegation of power, particularly such broad power, carries with it the potential for abuse. When considering the abuse of power, the words of George D. Finlayson, QC, Treasurer of the Law Society of Upper Canada, in the introduction to the March, 1979 special lecture series of the Continuing Legal Education Program of the Law Society of Upper Canada, are apt:

    Abuse of power is not just a title, it is a fact of life in Canada today. The extent to which that abuse has been held to tolerable levels by our judicial system is directly attributable to the ability of that judicial system to maintain its independence from the state and to assert the Rule of Law over the agencies of government. The judicial system, however, is just a part of our administration of justice, all be it its most high profile. The fact is that the true responsibility for the effectiveness of judicial control lies with the legal profession which fosters and nurtures the judiciary. There cannot be an independent judiciary without an independent bar, and yet the independence of the one is taken for granted, while the role of the other is ignored or misunderstood.

    Abuse of power is inevitable in a system of government such as ours where the intervention of the state into the lives of citizenry can only be described as massive. It occurs at all levels, federal, provincial and municipal. The fact that it attempts in good faith to represent the aspirations of its electorate only compounds the problem. The good faith of the democratic system is not in issue, its execution is.

    It is therefore apparent that while the study of prison law involves many areas of the law, including constitutional law, criminal law, tort law and the law pertaining to civil liberties, it involves in great measure the study and practice of administrative law in the context of imprisonment from the imposition of the sentence until its expiry including periods on parole.

    The major legislation affecting prisoners, apart from the Canadian Charter of Rights and Freedoms, consists of the Prison and Reformatories Act, the Corrections and Conditional Release Act and its Regulations (formerly the Penitentiary Actand Regulations, and the Parole Act and Regulations),as well as various other federal statutes that might have a bearing on the issue under consideration, as well as certain specific provincial legislation that may be applicable to a federal prison located in a particular province. Similarly, within the provincial sphere, each province has its own legislation governing provincial prisoners and certain other provincial legislation might frequently have a bearing on the issue arising, and, on occasion, certain federal legislation may be applicable because of the nature of the particular issue. In addition, various forms of subordinate legislation authorized by an enabling statute, exist and require particular consideration. In the area of federal prisons, this subordinate legislation commences with the Regulations promulgated by the federal Cabinet of the executive branch of the government and continues to include rules that are known as "Commissioner's Directives" promulgated by the Commissioner of Corrections, a senior public servant who, under the direction of the Minister, the Solicitor General, has the control and management of the service and all matters connected therewith and who derives his power to pass these rules specifically from s.97 of the Corrections and Conditional Release Act (formerly s29(3) of the Penitentiary Act). More will be said about the status of these directives later.

    In addition to Commissioner's Directives, there are certain other forms of subordinate legislation to be considered. The Penitentiary Service Regulations used to authorize Directors of divisions to issue instructions to be known as "divisional staff instructions" concerning the matters that are their responsibility. These divisional instructions, as they were commonly referred to, were promulgated by the Regional Directors of the Correctional Service of Canada and were applicable only to their regions. Similarly, the institutional head or warden was authorized by the Regulations to issue "standing orders" which included all orders that were peculiar to his institution as well as "routine orders" to provide information and give direction to all officers under his jurisdiction. In the absence of the institutional head the officer who was temporarily in charge of the institution was also authorized to issue these "routine orders". However,the Corrections and Conditional Release Act no longer contains specific sections authorising Regional director’s and Wardens to issue this type of legislation. While s96 of the Act authorises the Cabinet to make regulations, s97 authorises the Commissioner, subject to the act or regulations, to make rules for (a) for the management of the Service; and (b) for the matters described in s4 of the Act, namely the principles guiding the Corrections Service, and (c) generally for carrying out the purposes and provisions of the Act and Regulations. By s98 the Commissioner may designate as “Commissioner’s Directives” any or all the rules made under s97 and such directives are required to be accessible to offenders, staff members and the public . However, the term ‘institutional standing orders’ is still used in the legislation (see for example s6 of the regulations) and it follows that such subordinate legislation still exist. Further,every staff member is authorized to give a prisoner a “justifiable order” and it is an offence against the Regulations for a prisoner to disobey such a "justifiable order".