 |
| Catherine Latimer |
The importance of clarifying the minister’s duties under s. 4(a) are illustrated by the government’s alleged failure to ensure that new Corrections and Conditional Release Act (CCRA) provisions relating to isolated confinement were being administered in a manner that protected prisoners’ Charter rights. In 2019, courts of appeal in Ontario and British Columbia determined that, among other things, periods of solitary confinement should be capped at 15 consecutive days, and prisoners subjected to such confinement should also receive an independent external review within five days of their placement in isolation. These decisions were followed by important amendments to the CCRA that were intended to correct these failures to protect human rights.
However, it eventually became clear that Correctional Service Canada (CSC) was not always following the new CCRA provisions nor correcting the Charter violations found by the courts of appeal. Research reports, and even an acknowledgment before a parliamentary committee by the minister of public safety, confirmed that periods of isolation beyond 15 consecutive days were persisting under the new regime. In other words, a federal government agency was likely committing Charter violations. And yet, the minister of public safety, who was responsible for CSC, did not intervene to ensure Charter compliance by his agency.
A letter was then written to the minister of justice asking that he discharge his duties under s. 4(a) of the Department of Justice Act to ensure that the administration of the CCRA was consistent with the law, specifically with the Charter. His response illuminated a contradiction at the heart of the minister’s duties. He explained that he had discharged his obligations under s. 4(a) by advising his colleagues. Certainly, advising and even defending federal departments and agencies like CSC are the responsibility of the attorney general, so this interpretation seems in line with the law. And yet, the minister of justice is also supposed to ensure that federal statutes are administered in compliance with the law. That is to say, the minister of justice is supposed to advise and defend federal departments who administer statutes but also oversee those departments to guard against maladministration — seemingly incongruous duties that should be clarified if those responsibilities are to be effective and if Charter rights are to be protected.
Problems invariably arise if the minister’s duties are in tension or are ambiguous. For example, whatever advice the minister of justice may have provided to the minister of public safety who is responsible for CSC did not relieve federal prisoners of unconstitutional periods of prolonged solitary confinement, nor did it ensure they had access to independent external reviews within five days of their placements in isolated confinement. Clearly, Charter rights were, and are, being violated in the administration of the CCRA.
The minister’s failure to intervene and stop Charter violations also leaves the federal government open to costly litigation. Significant damage awards have been assessed against the federal government under its previous isolated confinement regime for prisoners who were subjected to solitary confinement for more than 15 consecutive days. The likelihood of further damage awards for violating the same Charter protections is high.
A thoughtful study of s. 4(a) of the Department of Justice Act is clearly overdue. The John Howard Society of Canada is grateful to the Canadian Bar Association’s Law for the Future Fund for supporting our consultation on the effective use of the minister of justice’s statutory duty on s. 4(a). We look forward to hearing your views on how this provision could be most effectively implemented and whether it could support Prime Minister Carney’s stated respect for the rule of law and the need for efficient government spending.
Catherine Latimer is the executive director of the John Howard Society of Canada.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.