Gone but not forgotten: should judges be allowed to remedy by re-sentencing?

• Author: Campbell, Mary E.
• Position: Canada

Background

The Arbour Report (1996) makes 14 omnibus recommendations. Number 8 provides as follows:

8. With respect to correctional issues more generally, I recommend:

(a) that the Department of Justice, at the initiative of the Solicitor General, examine legislative mechanisms by which to create sanctions for correctional interference with the integrity of the sentence;

(b) that such sanctions provide, in substance, that if illegalities, gross mismanagement or unfairness in the administration of a sentence renders the sentence harsher than that imposed by the court:

(i) in the case of a non-mandatory sentence, a reduction of the period of imprisonment be granted, to reflect the fact that the punishment administered was more punitive than the one intended, should a court so find; and

(ii) in the case of a mandatory sentence, the same factors be considered as militating towards earlier release;

(c) that the Correctional Service properly educate its employees with respect to the rights of incarcerated offenders and inform them of the Service's commitment to seeing those rights are respected and enforced. (Arbour 1996: 255)

The impetus for this recommendation was Justice Arbour's finding that the rule of law had not been integrated into the operation of the Correctional Service of Canada (CSC) and that this failure had been a fundamental reason for the events that took place at the Prison for Women. A number of the report's recommendations are thus aimed at ensuring the creation and maintenance of a "culture of rights" within the CSC.

The legislative framework

Ironically, the events at Prison for Women that gave rise to the Arbour Inquiry occurred not long after the promulgation of a comprehensive, modern, and rights-based legislative framework, the Corrections and Conditional Release Act (CCRA). Proclaimed in force in 1992, the CCRA was the product of a decade of intensive review, analysis, consultation, and litigation. This included the nine volumes of the Correctional Law Review, various reports from parliamentary studies such as the 1988 Daubney Report, and an intense period of inmate litigation following the proclamation of the Canadian Charter of Rights and Freedoms in 1982. The new CCRA replaced the by then outdated Penitentiary Act and Parole Act, and it was carefully crafted to reflect international and domestic human rights standards in the correctional context. Its provisions detail the rights and obligations of the CSC, its staff, and offenders. As well, the CCRA provides internal and external redress mechanisms through, for example, the Correctional Service's offender grievance system as well as the mandate for the Office of the Correctional Investigator (OCI), Canada's federal prison ombudsman.

The CCRA was subject to a mandatory review by Parliament, which issued its report in May 2000 (Canada, Standing Committee on Justice and Human Rights 2000), followed by the government's response in November 2000 (Canada, Solicitor General 2000). The review found the CCRA to be basically sound, and the recommendations focused more on operational issues.

The operational context

It would be unjust to describe the correctional environment as utterly lawless prior to the implementation of the CCRA in 1992, and equally unjust to expect that the environment changed immediately upon the implementation of the new CCRA. Organizational culture is complex, and, as has been described elsewhere (Campbell 1997), the natural pull of the correctional environment is towards the brutal. Without ef fort and structure, it is not a naturally beneficent or rights-friendly environment. The mere fact of new, rights-based legislation in 1992, therefore, did not automatically mean that operations would fully follow suit.

Indeed, this failure is at the heart of the Arbour Report, which refers, inter alia, to "the obvious difficulty at all levels of the Correctional Service to appreciate the need to obey the spirit and the letter of the...