THE RULE OF LAW

1. THE RULE OF LAW “Wherever law ends, tyranny begins” (John Locke, 1690) Presentation to the Canadian Prison Law Conference Justice Anne S. Derrick, September 21, 2018

2. The Rule of Law – Broad Principles • A principle of governance • All persons, institutions and entities, public and private are accountable • Accountability under laws that are publicly promulgated, equally enforced and independently adjudicated and consistent with international human rights norms and standards

3. The Rule of Law–Where Is It Articulated? • International instruments such as The International Covenant on Civil and Political Rights; the Mandela Rules (e.g. Rule 1) • Domestic sources including the Canadian Charter of Rights and Freedoms, the Corrections and Conditional Release Act, Nova Scotia Corrections Act

4. The Rule of Law – International Commission of Jurists 2018 • It is a principle that elevates democracy from mob rule and is necessary to harness the energy of democracy and give it a direction and a progression towards the promotion and protection of human rights…

5. The Rule of Law – Justice Albie Sachs (formerly of the South African Constitutional Court) • It occupies a “distinctive, hallowed” space “from which powerfully attractive energies radiate.” • Fairness, Justice, Participation, Transparency, Openness

6. The Rule of Law in the Face of Terrorism - United States v. Khadr, [2011] O.J. No. 2060, para. 76 • …the rule of law must prevail even in the face of the dreadful threat of terrorism. We must adhere to our democratic and legal values…For if we do not, in the longer term, the enemies of democracy and the rule of law will have succeeded. They will have demonstrated that our faith in our legal order is unable to withstand their threats…

7. The Rule of Law – the MacGuigan Report (1976) • All-party House of Commons Committee tasked with conducting a major inquiry into the federal penitentiary system • Highly critical of the federal penitentiary system • Identified that the rule of law and the constituent elements of justice must prevail inside Canadian prisons

8. The Rule of Law – Martineau v. Matsqui Institution, [1980] 1 S.C.R. 602 • In the context of considering the issue of whether an internal disciplinary board was bound by a duty of fairness: “The rule of law must run within penitentiary walls.” (Dickson, J.)

9. The Rule of Law – Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 • “…the right of the state to punish and the obligation of the criminal to accept punishment are tied to society’s acceptance of the criminal as a person with rights and responsibilities…” • Charter rights are not a matter of privilege or merit.

10. The Rule of Law – Sauvé v. Canada • Prisoners as “citizen-law breakers” (Chief Justice McLachlin) • Denial of prisoners’ rights “sends the unacceptable message that democratic values are less important than punitive measures ostensibly designed to promote order.”

11. The Rule of Law – May v. Ferndale Institution, [2005] S.C.J. No. 84 – Access to Justice • Concurrent jurisdiction for habeas corpus affords prisoners meaningful and significant access to justice in order to protect their liberty rights. • “Timely judicial oversight…is still necessary to safeguard the human rights and civil liberties of prisoners, and to ensure that the rule of law applies within penitentiary walls.

12. The Rule of Law – Parliamentary and Judicial Oversight • “Ultimately, I believe there is little hope that the Rule of Law will implant itself within the correctional culture without the assistance and control from Parliament and the courts…” (Arbour Inquiry Report, page 182)

13. The Rule of Law - 2010/2011 Correctional Investigator’s Report • It bears reminding that offenders have identities and lives apart from their crimes. They are imprisoned as a consequence of their transgressions, not to be deprived of their humanity. The law follows offenders into prison – it does not stop at the prison gate. As the Corrections and Conditional Release Act recognizes, “offenders retain the rights and privileges of all members of society, except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence.” This legal principle is a fundamental expression of Canadian values. It reflects the fact that no one among us – including those deprived of liberty – forfeits or forgoes the right to be treated equally, humanely and with dignity. (pages 5 & 6)

14. The Rule of Law – Why Should We Care About It? • It is fundamental to our democracy • It is grounded in our constitutional commitment to the inherent worth and dignity of every individual • “Nowhere is the rule of law more important or necessary than in the administration of justice, particularly when it includes the loss of liberty.” (Correctional Investigator’s 2010/2011 Annual Report)

15. The Rule of Law - The Marshall Inquiry • The Royal Commission’s examination of two cases involving provincial politicians revealed a two-tier system of justice – that the system responded differently depending on the status of the person investigated. • The Royal Commission found that unequal treatment “makes the ideal of justice for all meaningless, and renders the goal of complete public confidence in the system of administration of justice impossible.”

16. The Rule of Law - The Marshall Inquiry • “A properly functioning criminal justice system is the bedrock on which society’s acceptance of our system of law and the maintenance of order is based.” • The rule of law is essential to the proper functioning of the criminal justice system. • Public confidence in the justice system “can only be accomplished through the unwavering and visible application of the principles of absolute fairness and independence.”

17. The Rule of Law – The Arbour Inquiry • …A guilty verdict followed by a custodial sentence is not a grant of authority for the State to disregard the very values that the law, particularly criminal law, seeks to uphold and vindicate…(Preface, page xi) • “The Rule of Law is absent, although rules are everywhere.” (page 181)

18. The Rule of Law – The Arbour Inquiry • Prisoners’ rights must not be trivialized or dismissed as undeserved. • “When a right has been granted by law, it is no less important that such right be respected because the person entitled to it is a prisoner…” (page 182)

19. The Rule of Law and the Context of Invisibility and Coercion • …For most prisoners the time spent in Court is only a small portion of their period of captivity. The law as they know it is not represented by the judge or magistrate, defending counsel or prosecutor, but by the policeman and the prison warder. The courtroom is an important part of the law, one of its vital organs, but the crucial part of the system is the police station and the prison. Whatever jurisprudential theorists might say, as far as the overwhelming majority of people directly affected by the law is concerned, law is an instrument of coercion and punishment…(The Jail Diary of Albie Sachs) • Justice Arbour – The correctional system is the least visible branch of the criminal justice system.

20. The Rule of Law – Through the Lens of the Citizen Law-Breaker • Denying prisoners’ their fundamental rights to send an “educative message [as argued by the Government of Canada] about the importance of respect for the law” is “bad pedagogy. It misrepresents the nature of our rights and obligations under the law, and it communicates a message more likely to harm than help respect for the law.” (Sauve v. Canada, para. 30)

21. The Rule of Law – Through the Lens of the Citizen Law-Breaker • A prisoner explained his larger reasons for pressing a lawsuit in which he sued for damages for the “humiliating, degrading, illegal and immoral” treatment involved in a strip search: • …I have been encouraged to participate in a society governed by the Rule of Law. I have to win this by law. If I don’t, there will be a tremendous feeling inside of me that this is all bullshit. I already have that feeling. I grew up with that feeling. I never did believe in the law, in the government, or in state-sponsored sanctions…Someone in authority has to say that this was wrong. I’ll accept that. Internally I’ll accept that. I’m paying the price for my breaches of the law, somebody has to build up my confidence in the system. • Because this is how it works in my world: you screw me like that, I put you in a trunk and sink the car. I don’t want to live like that any more. But believe me, that solved the problem before. Nobody ever screwed me around again. I have to assure myself that the law is at least as powerful, that no one will ever screw with me in that manner again. That’s why it’s so important. (quoted in Michael Jackson, Justice Behind the Walls, pages 492-493)

22. The Rule of Law • Prison is the acid test of our commitment to human rights. If we can maintain our commitment in our prisons, we can do it anywhere. If not, then respect for our human dignity becomes conditional…Ultimately the preservation of rights for all citizens depends on our preservation of the rights of those in our prisons. (Michael Jackson and Graham Stewart, A Flawed Compass, 2009)