CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, July 10, 2017

MacKay on Inmates' Rights

A. Wayne MacKay (Dalhousie University - Schulich School of Law) has posted Inmates' Rights: Lost in the Maze of Prison Bureaucracy? on SSRN. Here is the abstract:

A prison inmate is supposed to have the same basic rights as any other citizen, except to the extent that such rights are circumscribed by physical confinement. This may be surprising to many prison authorities, and most of the general public. The provisions of the Charter of Rights and Freedoms apply to federal penal institutions and to the provincial penal institutions of any province which does not opt out of the relevant Charter provisions by using the over-ride clause.



All provisions in the Charter are subject to the limitation clause in section 1, which states that all rights and freedoms are subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". This clause may be a very important restriction in regard to the Charter's impact on prisons. 

In the past, Canadian society has seen fit to impose many "reasonable" limits, which have been accepted by the public whether they were free and democratic or otherwise. These limits must also be prescribed by law. This may mean that prison rules must be written and in relatively clear and accessible form, before they can be relied on as reasonable limits.

The democratic rights in sections 3-5 of the Charter provide a clear example of the significance of the reasonable limits clause in the prison context. Section 3 of the Charter declares boldly that everyone has the right to vote. Read at face value "everyone" would include prison inmates. However, most courts to date have regarded the denial of the right to vote to prison inmates as an example of reasonable limits under section 1 of the Charter. A denial of the right to vote to a person on probation has been held to not be a reasonable limit but people actually behind bars have not fared so well. Reasonable limits are likely to be read broadly in respect to prisons and their inmates.

There are many other provisions of the Charter which are relevant to prisoners. The fundamental freedoms of religion, expression and assembly and "legal rights" are obvious examples, as are section 7 (the right to life, liberty, and security of the person), section 9 (the right not to be arbitrarily detained), and section 12 (the right not to be subjected to cruel or unusual punishment).

http://lawprofessors.typepad.com/crimprof_blog/2017/07/mackay-on-inmates-rights.html

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