Section 178 of the CCRA authorizes the Correctional Investigator, after conducting an investigation, to make a recommendation to the Commissioner of Corrections or the Chairperson of the National Parole Board. Such a recommendation may be based upon a CSC or NPB breach of law or policy, a decision based on an unreasonable, unjust, oppressive or improperly discriminatory law or a decision which is based on a mistake of fact or law. Section 179(2) provides that CSC and the NPB are not bound to follow any recommendation made by the Correctional Investigator. CAEFS believes that, as a minimum, those recommendations which identify a breach of the law should be binding on the CSC and NPB. Madam Justice Arbour found that a culture of disregard for its legal obligations pervades CSC (pp. 46, 57, 94, 105). Also, it is a reality that breaches of the law by CSC are almost impossible for prisoners to redress on their own. In addition, legal aid plans in most areas of the country do not provide legal aid for any prison related matters. Furthermore, the grievance system is an internal process which has not proven effective to address this issue, either because CSC does not generally acknowledge or recognize breaches of statutory obligation, and/or because CSC views most such breaches as somehow justified. For example, the Arbour Commission found that grievances with respect to clearly illegal conditions of confinement were routinely dismissed. In order to protect the rights of prisoners and ensure compliance with the law, s. 179(3) should be amended to require that the Commissioner of Corrections and the Chairperson of the NPB are bound to act on a finding or recommendation by the Correctional Investigator with respect to a breach of the law. CAEFS also recommends that the CCRA be amended to direct that the Correctional Investigator report directly to Parliament.
In its Inquiry into the 1994 incidents at Prison for Women, the Arbour Commission found flagrant and serious breaches of the CCRA and the Charter which resulted in women prisoners being held in conditions of confinement which were illegal and oppressive. In fact, after hearing many CSC witnesses and examining policy and operational documentation, the Commission concluded that the only realistic manner in which CSC's disregard for the law could be redressed was by the provision of a remedy for prisoners whose sentences had effectively been altered as a result of CSC's failure to administer the prison sentence in accordance with the law. Madam Justice Arbour articulated the issue as follows: "Ultimately, I believe that there is little hope that the Rule of Law will implant itself within the correctional culture without assistance and control from Parliament and the courts. As a corrective measure to redress the lack of consciousness of individual rights and the ineffectiveness of internal mechanisms designed to ensure legal compliance within the Correctional Service, I believe it is imperative that a just and effective sanction be developed to offer an adequate redress for the infringement of prisoners' rights" (p. 182). The Arbour Commission proposed that a prisoner whose sentence was illegally or unfairly administered or grossly mismanaged should be entitled to apply to a court for a reduction in the length of the sentence. Prisoners serving a mandatory minimum sentence, in turn, should be entitled to apply to the court for a declaration that the illegality or unfairness in the administration of the sentence must be taken into account by the NPB as a factor weighing in favour of release when the prisoner's application for conditional release is considered. This proposal is based on the principle that the sentencing judge imposes a federal sentence which s/he expects will be administered in accordance with the law, both with respect to its duration and the conditions of incarceration. CAEFS believes that the Arbour Commission's findings with respect to CSC's blatant disregard for the law, particularly CSC's own statutory mandate, must be redressed. CAEFS recommends that the CCRA be amended to include a new provision which entitles prisoners to apply to the court for a reduction of a fixed term sentence or, if the sentence is a mandatory minimum, a declaration that the sentence was illegally or unfairly administered.
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