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Human Rights In Community Corrections

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CHAPTER 2: THE LEGAL FRAMEWORK

To maintain continuity with its earlier mandate, the Working Group reviewed Canada's international and domestic human rights obligations and their bearing on CSC's program of community corrections and on the human rights of offenders, employees, victims and other parties involved.

As pointed out in our original report, Canada's human rights obligations are broadly distributed over many international instruments and domestic legislative and constitutional texts.1 On this basis it was our general conclusion that:

  1. all the human rights principles and obligations that Canada has subscribed to since the Universal Declaration on Human Rights was adopted 50 years ago apply equally to the treatment of offenders, staff and others, whether it be in an institutional or a community setting;
  2. the only major international document which deals specifically with matters related to community corrections is the United Nations Standard Minimum Rules for Non-custodial Measures, usually known as the Tokyo Rules;2
  3. the essential rights of offenders are adequately reflected in those sections of the CCRA that describe the purpose and principles of the federal correctional system;
  4. although the human rights of CSC employees, including those working in community corrections, are covered under various pieces of federal legislation, it would be helpful if a revised CCRA were to make it clear that staff rights have as much priority as those of offenders; and
  5. such rights as are granted to victims under the CCRA may be insufficient to reflect their interests, and the manner in which they may be invoked is at present less than clear.

An additional non-binding international instrument directly addresses the rights and entitlements of victims: the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. Canada played a key role in sponsoring the Declaration, which was adopted by United Nations General Assembly in November 1985, and later served as the basis for a federal-provincial-territorial statement in 1988.3 The full text of the Declaration may be found in Annex G. It states that victims are entitled to have access to mechanisms of justice, including prompt redress, and urges member countries to ensure that the concerns of victims can be heard at all appropriate stages of criminal proceedings.

The Correctional Law Review, which led to the enactment of the CCRA in 1992, considered the Declaration and proposed some recognition of victims' rights. More recently the Standing Committee on Justice and Human Rights issued a report entitled Victims' Rights: A Voice, not a Veto, which recommends enhancing the role of victims in the parole system and improving victims' access to information about offenders, including information about their participation in programs of various kinds. As part of the present five-year review, the Sub-Committee on the Corrections and Conditional Release Act is likely to address these issues. The UN Declaration was also considered in the drafting of Bill C-79, which would amend the Criminal Code to include additional victim entitlements. The proposed preamble, for instance, resembles the wording of the Declaration, and some provisions of the Bill embody principles set out in that document.

The Rights of Offenders in the Community Corrections Setting

Without its being made completely explicit, it is clear that those human rights rules that are encompassed within the CCRA and CCRR are intended to apply to all categories and classes of federally sentenced persons, whether they be incarcerated or released under some form of parole or supervision. However, it is also clear that the practical implications of respecting those rules will necessarily differ according to the offender's situation. This applies not only to such matters as living conditions and health care provisions, but also to the disciplinary sanctions available and the procedural remedies that can, in practice, be invoked.

Besides laying out the purpose of parole and the duties, composition, etc. of the National Parole Board, Part II of the Act presents the various types and terms of release primarily from the standpoint of risk management, eligibility criteria and the operations of the Board. From the offender's perspective, the principal rights-related matters covered in Part II are opportunities for parole reviews, the right to receive fair notice, and the normal information and hearing requirements, which are set out in detail. Speaking generally, and given the preponderance of custodial rules in Part II, one is bound to say that the entitlements of offenders (e.g., to rehabilitative treatment, programming, and community support) receive relatively little attention in this part of the CCRA. The law as now written goes to great lengths to spell out the power over offenders which is exercised by the correctional authorities. This is no doubt to be expected. But since offenders must also rely on those authorities to deal with them justly and humanely, it is important that the extent and nature of their rights be as clear as possible, and that CSC' s compliance with those rights be appropriately measured and accounted for.

The human rights of specific interest to offenders might be summarized as follows.

· The retention of all normal rights that are not necessarily abridged by virtue of the offender's situation.

· A corresponding right to enjoy the least restrictive treatment possible, consistent with effective risk management and public safety.

· An explicit entitlement under the CCRA to an appropriate balance of custodial control and rehabilitative programming and assistance.

· Procedural fairness at all points in the process, including suspension and revocation, as well as the application of control measures, such as search and seizure, urinalysis, compulsory (e.g. psychiatric) treatment, etc., in a manner that conforms with reasonable human rights standards.

· Provision of satisfactory accommodation, living and other conditions, including financial allowances sufficient to enable offenders to live decently, visit family, look for work, and obtain ordinary medical or other services within the terms of their parole.

· Freedom from arbitrary special conditions of parole or sanctions which have no reasonable relation to an increased risk of reoffending.

· Freedom from all forms of discriminatory treatment related to race, ethnicity, sex, disability or any other ground prohibited by the Canadian Human Rights Act.

· Assurances that family, friends, employers, etc. will not be subjected to unnecessary intrusion or to harassment in pursuit of verification of offenders' activities in the community.

In a more general sense, it might also be argued that the concept of community corrections as a means of protecting society, by encouraging and facilitating resocialization, entails a responsibility for CSC to be at least as active in soliciting community support and assistance as it is in supervising parolee behavior. Although this may not be an offender's right by virtue of international or domestic law, there are at least two articles of the Tokyo Rules that underline the importance of this aspect of the correctional task.4 In any event, the notion of community corrections obviously loses much of its rationale when this is not the case. It is questionable whether the Act and Regulations at present sufficiently express the complementary nature of support and assistance.

1 See Reference Guides, Domestic and International Human Rights Obligations with Respect to Prisoners and CSC Employees for a compilation of the relevant texts.

2 The full text of the Tokyo Rules appears in Annex F.

3 Statement of Basic Principles of Justice for Victims of Crime.

4 Tokyo Rules: "10.4 Offenders should, when needed, be provided with psychological, social and material assistance and with opportunities to strengthen links with the community and facilitate their reintegration into society"; and, "17.1 Public participation should be encouraged as it is a major resource and one of the most important factors in improving ties between offenders undergoing non-custodial measures and the family and community. It should complement the efforts of the criminal justice administration."