Cruel and Unusual Punishment : Prisoners’ Rights in the 1990’s

John Ramsay Bowman (LL.M. 1991)

ABSTRACT

With the tenth anniversary of the enactment of the Canadian Charter of Rights and Freedoms fast approaching, this thesis is intended to evaluate the extent to which s.12 of that document has effectively impacted on prison litigation in Canada. An historical analysis of the prohibition against cruel and unusual treatment or punishment will show an encouraging swing away from the fairly restrictive interpretations of the past. An overview of the Eighth Amendment of the U.S. Constitution, with its similarly worded prohibition against cruel and unusual punishments, will help to evaluate the degree to which the many U.S. prison conditions cases may be usefully applied by Canadian courts. This, along with a general look at prison litigation under Article 3 of the European Convention on Human Rights, will help asses whether the present Canadian judicial approach is still too restrictive, and the risks of that attitude becoming even more conservative.

With this background established, two issues of current interest in prison life will be examined, with the aim of suggesting that existing correctional attitudes to these issues violate s.12. The treatment of prisoners infected with the AIDS virus will be the focus of one chapter. As numbers of those infected with the AIDS virus in general and prison populations continues to rise, it will be asked what might be the most practical approach to controlling this new prison “inmate”. The other issue to be considered is that of prison overcrowding, and in particular, the practice of double bunking, placing two people in a cell designed for one. It will be suggested that the existing cases in this area were based on an inadequate assessment of the evidence, and that those decisions have, in any case, been overtaken by the Supreme Court of Canada’s developing understanding of s.12. The thesis will conclude by conceding that, despite a more liberated judicial attitude to cruel and unusual treatment or punishment in Canada, not very much has changed in prison litigation. If s.12 is to be more than a paper guarantee of rights and freedoms in the 1990’s, a more interventionist approach on the part of the judiciary is clearly mandated.

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