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Philosophy, the Politics and the Practice of Prisoners' Rights

NCJ Number
88169
Journal
Canadian Criminology Forum Volume: 5 Issue: 1 Dated: (Fall 1982) Pages: 11-24
Author(s)
C J Millard
Date Published
1982
Length
14 pages
Annotation
Statutes and judicial decisions regarding prisoners' rights in Canada are unlikely to make any difference in the way the prison system actually operates.
Abstract
Advocates of prisoners' rights who want to have any lasting impact on the current system must first clarify and substantiate their position at both the philosophical and practical level. Much philosophical disagreement exists over the origins and nature of human rights in general and prisoners' rights in particular. The attitudes of both legislatures and the judiciary are similarly equivocal. The Charter of Rights and Freedoms contained in the Constitution Act of 1982 purports to guarantee fundamental rights and freedoms, but contains many exclusions and qualifications. Even where the Charter's operation has not been limited, the courts may be reluctant to intervene, as shown by some recent decisions. Nevertheless, the Supreme Court of Canada's decision in Martineau v. Matsqui may indicate an increased willingness to submit the internal workings of the prison system to external review in cases involving prisoners' rights. However, the implementation of judicial decisions will also depend on public opinion and the needs of correctional administrators. Reform efforts will continue to fail if reformers do not seek to produce a closer fit between theory and practice. Those concerned with prisoners' rights must adopt a legal realism which recognizes the philosophical, political, and practical pitfalls involved in the task of reform. Five notes and about 55 references are supplied.