In Re Russell et al and Radley, Chairman, Collins Bay Penitentiary Disciplinary Court the Federal Court had occasion to consider the various provisions of the Penitentiary Act and Regulations in relation to s1 of the Charter. The court concluded that the onus of demonstrable justification was on the party who sought to limit pertinent rights and freedoms and made the following general comments with respect to the applicability of s1 to prisoners

    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 s6 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.

    Similarly, in Re Maltby et al and AG Saskatchewan et al it was held, in relation to remand prisoners, that though there was an obligation on the court to ensure that 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 restrictions and limitations placed by the institution on the rights of remand prisoners were necessary in order that sufficient security would ensure that they remain in custody and not pose a danger to themselves or other inmates or staff and ensure that the facility was properly managed. The efficient management of a detention facility was held to be a valid objective that may justify the imposition of conditions and restrictions on prisoners in pretrial detention and these conditions and restrictions did not constitute punishment. The court dismissed various claims alleging violations of ss7, 8 and 12 of the Charter but upheld a claim that s3 of the Charter was being violated in not allowing such prisoners to vote in provincial elections. In contrast, in Jolivet and Barker v Her Majesty the Queen in Right of Canada it was held that the disqualification from voting in federal elections under the Canada Elections Act, though in conflict with s3 of the Charter was justifiable under s1 because the exercise of the right to vote by prisoners would be impossible for practical reasons. The court held that the right to vote meant more than the, right to cast a ballot and included the right to make an informed electoral choice through freedom of belief, conscience, opinion, expression, association and assembly with complete freedom of access to the process of "discussion and the interplay of ideas" by which public opinion is formed. The restrictions imposed by imprisonment involving close control over association, assembly and discussion, and the interference with the free flow and circulation of information and ideas necessary to preserve prison order and discipline rendered it impossible for prisoners to make a free and democratic electoral choice. The right to vote was found to be a right which of necessity could not be exercised by prisoners serving a sentence of imprisonment and was therefore a justifiable limit. The court emphasized, however, that such disenfranchisement of criminal offenders was not justifiable on the basis of a need to protect society from the votes of unfit persons or for punitive purposes. In yet another s3 voting rights case, Levesque v AG Canada et ala violation of s3 was found to exist in relation to prisoners voting in a Quebec election and, in considering whether or not s1 reasonable limits could be imposed on that right, Rouleau, J held, citing the decision of the Federal Court of Appeal in Gould (supra), that administrative or security reasons could not prevent the exercise of a constitutionally recognized right and that simply because imprisonment necessarily entailed loss of certain rights, this could not mean the whole spectrum of rights. In that case it was found that the Crown had failed to establish that imprisonment constituted a reasonable limit on the right to vote.

    In Cadieux v The Director of Mountain Institution and the National Parole Board the Policy and Procedure Manual of the National Parole Board issued pursuant to s25 of the Parole Regulations was held not to be "prescribed by law" within the meaning of s 1 of the Charter and furthermore, the various provisions of the manual were held to be too broad to constitute "reasonable limits" on s7 Charter rights. The court commented that if the manual had been approved by the Governor in Council under s3 (6) of the Parole Act, the conclusion of the court might have been different. Similarly, it has been held that s17 of the Parole Regulations could not be invoked to limit s7 Charter rights and could not be considered a reasonable limit on such rights. In Latham v Solicitor General of Canada et al, the National Parole Board purported to rely on certain provisions in s17 exempting disclosure at a parole hearing of confidential information and the court held that s17 was not effective to limit a Charter right whereas it may have been in relation to the common law duty of fairness. Again, in Wilson v The National Parole Board, it was held that s17 of the Parole Regulations, and by analogy, s54 of the Canadian Human Rights Act were limited in their application to the overriding provisions of s1 and s7 of the Charter, but, nevertheless, certain provisions in s54 of the Canadian Human Rights Act did not breach those sections and met the standards of fairness required.

    In Belliveau v The Queen, it was held that the provisions of the Parole Act pertaining to mandatory supervision amounted to reasonable limits within the meaning of s1. It is evident that a considerable amount of prison law litigation is likely to take place in relation to s 1 of the Charter. All of the above decisions were decided prior to the decision of the Supreme Court of Canada in R v Oakes (supra) and future cases will have to take into account the detailed analysis of s1 provided in the judgment of Dickson, CJ on behalf of the court.