Pace Law Review
Volume 30
Issue 5 Fall 2010
Opening Up a Closed World: A Sourcebook on
Prison Oversight

Article 9

11-18-2010

The Ombudsman as a Monitor of Human Rights
in Canadian Federal Corrections
Howard Sapers
Office of the Correctional Investigator of Canada

Ivan Zinger
Office of the Correctional Investigator of Canada

Recommended Citation
Howard Sapers and Ivan Zinger, The Ombudsman as a Monitor of Human Rights in Canadian Federal
Corrections, 30 Pace L. Rev. 1512 (2010)
Available at: http://digitalcommons.pace.edu/plr/vol30/iss5/9
This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law
Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact rracelis@pace.edu.

The Ombudsman as a Monitor of
Human Rights in
Canadian Federal Corrections
Howard Sapers* & Ivan Zinger**
Introduction:
A Human Rights Approach to Corrections
An important challenge for many countries, including
advanced democracies, is guaranteeing the human rights of its
prisoners. The quality of regard to, and respect for, human
rights may impact on the success of prisoners’ reintegration
and participation in society. A good balance between internal
and external monitoring can prevent human rights
breakdowns, detect violations when they occur, and rectify the
situation to ensure that they do not happen again. Striking the
appropriate balance between internal and external monitoring
is not easy. Canada, like many other countries, has struggled
with establishing and maintaining this balance. Even so,
accountability and transparency in decision-making remains a
fundamental challenge of a compliant human rights monitoring
system.
The best approach to ensure that the rule of law is upheld
in corrections is to conceptualize the business of corrections as
a human rights business.1 When government has exceptional
authority over its citizens, the potential for abuse of powers is
great and the protections of fundamental rights must be a core
preoccupation of those empowered and trusted with such
exceptional powers. In a correctional context, every aspect of a
prisoner’s life is heavily regulated by correctional authorities.
Correctional authorities make thousands of decisions every
BA. Correctional Investigator of Canada.
LL.B, Ph.D. Executive Director and General Counsel, Office of the
Correctional Investigator.
1. Ivan Zinger, Human Rights Compliance and the Role of External
Prison Oversight, 48 CAN. J. OF CRIMINOLOGY & CRIM. JUST. 127, 132 (Apr.
2006) (Can.).
*

**

1512

1

2010]

CANADIAN FEDERAL CORRECTIONS

1513

day, which impact on prisoners’ fundamental rights (e.g., use of
force, segregation, searches, transfers, and visiting). Routine
daily decisions, such as whether prisoners have contact with
family and friends, whether and how they can practice their
religion or access medical services, and when they can eat and
sleep, are all regulated by correctional authorities. Without
recognizing that the business of corrections is all about
promoting and monitoring respect for human rights,
preventing human rights violations, and detecting and
remedying human rights violations, systemic abuses of power
are unavoidable.
I.

The History and Key Features of the Public Sector
Ombudsman

The word ombudsman is Swedish and refers to a
representative or agent of the people.2 In 1809, Sweden
became the first country to establish a Parliamentary
ombudsman’s office with the responsibility to investigate
citizen complaints against public officials.3 More than a
century passed before the idea was taken up by another
Scandinavian country, Finland, which created an office in
1919. During the last four decades, there has been explosive
growth in the spread of ombudsman schemes, particularly in
Western Europe and the Americas. In 1974, the International
Bar Association approved a resolution defining an ombudsman
as:
An office provided for by the constitution or by an
action of the legislature or parliament and
headed by an independent, high-level public
official who is responsible to the legislature of
parliament, who receives complaints from
aggrieved persons against government agencies,
officials, an employees or who acts on his motion,
and who has the power to investigate,

2. Financial Ombudsman Service, What is an Ombudsman?,
http://www.financial-ombudsman.org.uk/news/417_EduPackCard-2.pdf (last
visited Mar. 30, 2010).
3. BYRON NORDSTROM, THE HISTORY OF SWEDEN 66 (2002).

http://digitalcommons.pace.edu/plr/vol30/iss5/9

2

1514

PACE LAW REVIEW

[Vol. 30:5

recommend corrective action and issue reports.4
The features common to all Ombudsman offices, which make
them attractive as mechanisms for complaint resolution, have
been described by the British and Irish Ombudsman
Association (BIOA) as follows:

•

Ombudsmen offer access to redress not available for
cases which might not be considered by the Courts.

•

Ombudsmen are independent and impartial and
conduct their investigations in private.

•

Ombudsmen are free to complainants.

•

Ombudsmen can usually take account of what is fair
and reasonable and are not bound by interpretation
of the law or precedent.

•

It is not necessary for the complainants to obtain
professional advice prior to bringing a complaint to
an Ombudsman.

•

Compliance with an Ombudsman’s recommendation
is secured by a variety of means – by law, by
contract, by moral force and the standing of the
Ombudsman.

•

Ombudsman schemes make extensive use of
informal settlements and conciliation; some offer
access to mediation.

•

Ombudsmen level the playing field between the
under-represented complainant and large and
powerful organizations.

•

Ombudsmen are inquisitorial, not adversarial, and

4. W. Haller, The Place of the Ombudsman in the World Community 29
(1988) (Fourth International Ombudsman Conference Papers) (Canberra).

3

2010]

CANADIAN FEDERAL CORRECTIONS

1515

investigations are conducted in private. Ombudsmen
can examine and interview witnesses and use
professional experts where appropriate. The
procedure for investigations can be tailored to the
circumstances of the case.5
Based on the above features, it is clear that ombudsmen
have dual roles. While they provide redress for individual
grievances, they are also concerned with the improvement of
service delivery standards.6 An ombudsman is therefore not
merely an agent of redress; he or she also has a quality-control
function. Through investigating individual cases, ombudsmen
may highlight weaknesses in practices, rules and attitudes.
Discovering these weaknesses is of advantage to both
complainants and those who have not complained because the
resulting improvements in the system provide a generalized
benefit. These two roles do not conflict, nor should they be
separated.7
Any office that receives and investigates
complaints is only doing half its job if its casework experience
is not used to provide comprehensive feedback to the
organization investigated. For example, such feedback could
relate to improvements in the way internal complaints are
dealt with, so that fewer complaints would make their way to
the ombudsman. Feedback could also lead to improvements
when investigations reveal systemic problems or failures.
II. Human Rights in Canadian Federal Corrections
International and domestic human rights instruments
affirm that persons deprived of their liberty have the right to
be treated with fairness and humanity, and have the right not
to be subjected to cruel, inhumane or degrading treatment or
punishment. The best argument for observing human rights
standards is not merely that they are required by international
or domestic law, but that they actually work better than any
5. BRITISH & IRISH OMBUDSMAN ASS’N (BIOA), GUIDE TO PRINCIPLES OF
GOOD
GOVERNANCE
(Oct.
2009),
available
at
http://www.bioa.org.uk/docs/BIOAGovernanceGuideOct09.pdf.
6. MARY
SENEVIRATNE,
OMBUDSMEN:
PUBLIC
SERVICES
AND
ADMINISTRATION JUSTICE 17 (2002).
7. Id.

http://digitalcommons.pace.edu/plr/vol30/iss5/9

4

1516

PACE LAW REVIEW

[Vol. 30:5

known alternative—for offenders, for correctional staff and for
society at large. Compliance with human rights obligations
increases, though does not guarantee, the odds of releasing a
more responsible citizen. By respecting the human rights of
prisoners, we convey a strong message that everyone,
regardless of their circumstance, race, social status, gender or
religion, is to be treated with respect and dignity.
The human rights standards and principles outlined in
international instruments, such as the International Covenant
on Civil and Political Rights,8 the Convention Against Torture9
and the Standard Minimum Rules for the Treatment of
Prisoners,10 should be reflected in all rules regulating
correctional practices and procedures.
The international human rights obligations pertaining to
Corrections can be summarized in four key principles:

•

The safety of correctional staff, prisoners and society
at large is paramount.

•

Prisoners retain the human rights and fundamental
freedoms of all members of society, except those that
are necessarily removed as a consequence of
sentence.

•

Decisions affecting prisoners are made in a fair and
forthright manner.

•

Correctional authorities apply the ―least restrictive
measures‖ consistent with public safety.11

8. International Covenant on Civil and Political Rights, Dec. 16, 1966,
Can. T.S. 47 (1976).
9. Convention against Torture and other Cruel, Inhumane or Degrading
Treatment or Punishment, Dec. 10, 1984, Can. T.S. 36 (1987).
10. Standard Minimum Rules for the Treatment of Prisoners, ECOSOC
Res. 664 (XXIV) (July 31, 1957), ECOSOC Res. 2076 (LXII) (May 13, 1977).
11. Howard Sapers, Office of the Correctional Investigator of Canada,
The Challenges of Oversight in Federal Corrections, International
Corrections and Prisons Association Annual Conference (Oct. 2008), available
at
http://www.oci-bec.gc.ca/comm/presentations/presentations200810eng.aspx.

5

2010]

CANADIAN FEDERAL CORRECTIONS

1517

In the long-term, failure to comply with any of these four
principles jeopardizes public safety because it hinders the
ability of correctional professionals to effect changes in
prisoners—in other words, it hinders rehabilitation of
prisoners. Prisoners may attend very good rehabilitation
programs; however, if they live within an environment
disrespectful of human rights, any gain that may have been
made through correctional intervention will quickly erode or
even dissipate completely. In sum, an environment respectful
of human rights is conducive to positive changes, whereas an
environment disrespectful of human rights will have the
opposite effect; it will harden criminals by reinforcing procriminal attitudes and disrespect for authority.12
III. The Development of the Specialized Prison Ombudsman
The establishment of specialized prison Ombudsman
offices is relatively recent, but it continues to gain popularity
around the world.
Scotland and Northern Ireland are
examples of jurisdictions that have recently established a
specialized prison Ombudsman office. Many countries view
such an office as one of the most effective models of external
oversight to address prisoners’ complaints and grievances. The
specialized expertise and close working relationship with
correctional authorities and stakeholders make prison
Ombudsman offices oversight bodies capable of unbiased
investigations and timely resolution of offender complaints.
Historically, most prison Ombudsman offices have been
created as a direct result of well-publicized serious human
rights violations and to address the chronic inability of internal
prison complaint and grievance mechanisms to fairly and
effectively respond to offenders’ complaints. Canada is no
exception in this regard.
In 1971, Kingston Penitentiary experienced one of the
bloodiest riots in its history. Five correctional officers were
taken hostage and a group of prisoners were brutally
tortured—two of the prisoners died, thirteen others were
seriously injured, and part of Kingston Penitentiary was
destroyed. Following the riot, many of the inmates implicated
12. Id.

http://digitalcommons.pace.edu/plr/vol30/iss5/9

6

1518

PACE LAW REVIEW

[Vol. 30:5

in the disturbance were transferred to Millhaven Penitentiary.
Subsequently, correctional staff at Millhaven Penitentiary
assaulted eighty-six offenders involved in the riot, causing
injuries of various degrees. A Royal Commission of Inquiry,
chaired by Justice Swackhamer, was appointed to examine
these tragic events, and it made strong recommendations to
improve the management and operations of the Canadian
Penitentiary Service, as it was then known.13 The Office of the
Correctional Investigator (―OCI‖) was established in 1973
pursuant to Part II of the Inquiries Act,14 in response to Justice
Swackhamer’s sweeping recommendations for strengthening
the accountability and oversight of the federal correctional
system.
The Office was finally entrenched into legislation on
November 1, 1992, with the enactment of the Corrections and
Conditional Release Act (CCRA).15
IV. The Correctional Investigator: Canada’s Federal Prison
Ombudsman
The Office of the Correctional Investigator investigates
and attempts to resolve individual federal offender complaints.
As well, it has a responsibility to review and make
recommendations on the Correctional Service of Canada’s
policies and procedures associated with individual complaints.
In this way, systemic areas of concern can be identified and
appropriately addressed.
The ―function‖ of the Correctional Investigator is
purposefully broad, as detailed in sections 167 and 170 of the
CCRA:
167. (1) It is the function of the Correctional
Investigator to conduct investigations into the
problems of offenders related to decisions,
recommendations, acts or omissions of the
13. MINISTRY OF THE SOLICITOR GENERAL OF CANADA, REPORT OF THE
COMMISSION OF INQUIRY INTO CERTAIN DISTURBANCES AT KINGSTON
PENITENTIARY DURING APRIL, 1971 (1972) (Can.).
14. Inquiries Act, R.S.C., ch. I 13 (1985).
15. Corrections and Conditional Release Act, 1992 S.C., ch. 20, available
at http://laws.justice.gc.ca/en/C-44.6/index.html.

7

2010]

CANADIAN FEDERAL CORRECTIONS

1519

Commissioner [of Corrections] or any person
under the control and management of, or
performing services for or on behalf of, the
Commissioner, that affect offenders either
individually or as a group.
170. (1) The Correctional Investigator may
commence an investigation
a)
b)
c)

on the receipt of a complaint by or on
behalf of an offender;
at the request of the Minister; or
on the initiative of the Correctional
Investigator.

(2) The Correctional Investigator has full
discretion as to
a)
b)
c)

whether an investigation should be
conducted in relation to any particular
complaint or request;
how every investigation is to be
carried out; and
whether any investigation should be
terminated before its completion.16

These sections provide the Office with broad authority to
identify, define and investigate a wide range of ―problems‖
brought forward by, or concerning, federal inmates or parolees,
provided only that such problems result from the conduct of
Correctional
Service
of
Canada
(CSC)
staff
and
representatives. Such conduct may include everything from
board policy initiatives to everyday, operational decisionmaking by staff on the institutional ranges.
The Office can initiate an inquiry on the basis of a
complaint or on its own initiative.
The Correctional
Investigator has complete discretion in deciding whether to
conduct an investigation and how to carry out that
16. Id. §§ 167, 170.

http://digitalcommons.pace.edu/plr/vol30/iss5/9

8

1520

PACE LAW REVIEW

[Vol. 30:5

investigation.
The Office addresses the vast majority of inmates’
complaints at the institutional level, through discussion and
negotiation.
When a resolution is not reached at the
institution, the matter is referred to regional or national
headquarters, depending upon the area of concern, with a
specific recommendation for further review and corrective
action.
Whenever a matter has not been adequately addressed, the
Office’s findings and recommendations are presented to the
Commissioner of Corrections.
That report provides
comprehensive information supporting the Office’s conclusions
and recommendations.
If at this level the Commissioner, in the opinion of the
Correctional Investigator, fails to address the matter in a
reasonable and timely fashion, it is referred to the Minister of
Public Safety and eventually may be detailed within an Annual
or Special Report.
In the course of an investigation, the Office’s staff has very
significant authority to enter premises and to acquire
information from files or individuals.
The Correctional
Investigator may hold hearings, and may summon and
examine under oath any person who is able to furnish any
information related to a matter being investigated. This
authority is tempered by strict legal rules limiting the
investigators’ ability to disclose the information acquired. A
vital assurance to all those with whom the Office deals, this
confidentiality underlines the independence of the Ombudsman
model from other forms of investigation and adjudication.
The Correctional Investigator is, above all, an
Ombudsman.
This involves a fundamental balancing of
authority and functions, which has long characterised the
Ombudsman approach. Legislation arms the Office with the
operational tools and discretion to carry out thorough
investigations on a broad range of offender problems.17
Nevertheless, the Correctional Investigator may only
recommend solutions to offender problems. Recommendations
may be directed toward local institutional staff and
management, the regional correctional authorities and the
17. Sapers, supra note 11.

9

2010]

CANADIAN FEDERAL CORRECTIONS

1521

national headquarters.
Recommendations may be made
directly to the Commissioner of Corrections and the responsible
Minister and, ultimately, to both Houses of Parliament.
As with other Ombudsman agencies, this balancing gives
rise to two features that underpin effectiveness as compared to
other investigative or adjudicative mechanisms:

•

enhanced and direct access to information
permits the Office to bring timely closure to
most matters, usually at the institutional
level; and,

•

the focus on persuasion that flows from the
power only to recommend means that the
Office:
o tends to address the most urgent and
significant unresolved matters in
statutory reports; and
o must attempt to buttress findings and
recommendations with a thorough and
compelling
review
of
supporting
information.18

It will be the relevance and weight of the evidence that is
provided, as well as the clarity and strength of conclusions,
that determine the outcome of efforts.
The Office of the Correctional Investigator currently has
twenty-four staff members, with twenty directly involved as
intake officers, investigators, coordinators or directors, in the
day-to-day handling of inmate complaints. The Office receives
between six and eight thousand offender inquiries and
complaints annually. For fiscal year 2008-09, approximately
two thousand were addressed through an ―immediate response‖
(the provision of information, assistance or referral) and
approximately four thousand resulted in an inquiry or
investigation.19 The investigative staff last year spent in
18. Id.
19. OFFICE OF THE CORRECTIONAL INVESTIGATOR, ANNUAL REPORT

http://digitalcommons.pace.edu/plr/vol30/iss5/9

OF THE

10

1522

PACE LAW REVIEW

[Vol. 30:5

excess of two hundred days in federal penitentiaries conducting
interviews with more than 2,500 offenders, and met with
inmate organizations at every institution in the country.20
Of the approximate 6,000 offenders’ inquiries and
complaints received by the Office in fiscal year 2008-09, the ten
most frequent areas of concern identified by offenders were:
1.
2.
3.
4.
5.
6.
7.
8.
9.

HEALTH CARE (851).
TRANSFER (447).
ADMINISTRATIVE SEGREGATION (423).
CELL EFFECTS (416).
CONDITIONS OF CONFINEMENT (373).
STAFF PERFORMANCE (357).
VISITS (311).
CASE PREPARATION (257).
INFORMATION - ACCESS AND CORRECTION
(253).
10. GRIEVANCE PROCEDURE (209).21
V. Strengthening External Monitoring in Canada
There are three areas where external oversight could be
enhanced to strengthen Canada’s compliance with its domestic
and international human rights obligations.
A. Independent Adjudication of Administrative Segregation
Decisions
In the summer of 1994, the OCI received several
complaints related to an intervention by an all-male
Emergency Response Team (ERT) at the Prison for Women
(P4W), Canada’s only penitentiary for women at the time. The
complainants alleged excessive use of force by the ERT, illegal
and dehumanizing strip searches of women by male
correctional officers, unlawful long-term administrative

OFFICE OF THE CORRECTIONAL INVESTIGATOR 2008-09 (2009), available at
http://www.oci-bec.gc.ca/rpt/annrpt/annrpt20082009-eng.aspx.
20. Id.
21. Id. (follow ―Annex A: Statistics‖).

11

2010]

CANADIAN FEDERAL CORRECTIONS

1523

segregation, and inhumane and punitive conditions of
confinement. The OCI conducted an investigation, which also
included reviews of the CSC’s own internal investigation and
its videotape of the ERT intervention. On February 14, 1995,
given the gravity of the human rights violations, Ron Stewart,
Correctional Investigator (CI) at the time, issued a Special
Report, which concluded the following:

•

the force used was excessive;

•

the involvement of an all-male ERT was
degrading and dehumanizing to the women
involved;

•

the conditions of confinement were punitive
and inconsistent with legislative provisions
governing administrative segregation; and,

•

the internal investigation conducted by the
CSC was at best incomplete, inconclusive and
self-serving.22

In addition to containing a number of recommendations on
significant policy changes in the areas of investigations,
administrative segregation and the deployment of all-male
ERTs, the Special Report also recommended financial
compensation for the women involved.23 On February 21, 1995,
the Special Report was tabled before Parliament by the
Minister, who in turn announced that an independent inquiry
would be convened. Later that evening, a major television
network aired the video of women at P4W being strip searched
by an all-male Emergency Response Team, and Canadians
were shocked by what they saw.
On April 10, 1995, Madame Justice Louise Arbour, former
UN High Commissioner of Human Rights and former member
of the Supreme Court of Canada, was appointed as
Commissioner for the Commission of Inquiry into Certain
22. RON STEWART, OFFICE
REPORT (Feb. 14, 1995) (Can.).
23. Id.

http://digitalcommons.pace.edu/plr/vol30/iss5/9

OF THE

CORRECTIONAL INVESTIGATOR, SPECIAL

12

1524

PACE LAW REVIEW

[Vol. 30:5

Events at the Prison for Women in Kingston. Justice Arbour’s
report confirmed the conclusions of the OCI with respect to the
incident under investigation, as well as the recommended
compensation for the women involved.24
In her report, Justice Arbour stated: ―my objective in
bringing forward recommendations on various aspects of
corrections is to assist the correctional system in coming into
the fold of two Canadian constitutional ideals – the protection
of individual rights and the entitlement to equality.‖25 Justice
Arbour also commented on the value of a prison Ombudsman to
foster a culture of human rights within the CSC: ―Of all the
outside observers of the Correctional Service, the Correctional
Investigator is in a unique position both to assist in the
resolution of individual problems, and to comment publicly on
the systemic shortcomings of the Service. Of all the internal
and external mechanisms or agencies designed to make the
Correctional Service open and accountable, the Office of the
Correctional Investigator is by far the most efficient and the
best equipped to discharge that function.‖26
In her 1996 report, Madame Justice Arbour concluded that
―the management of administrative segregation that I have
observed is inconsistent with the Charter culture which
permeates other branches of the administration of the criminal
justice.‖27 She went on to say: ―I see no alternative to the
current overuse of prolonged segregation but to recommend
that it be placed under the control and supervision of the
courts. Failing a willingness to put segregation under judicial
supervision, I would recommend that segregation decisions
made at an institutional level be subject to confirmation within
five days by an independent adjudicator.‖28
For over a decade, the CSC has rejected independent
adjudication and continues to this day to argue that an
enhanced internal segregation review process can achieve
fairness and compliance with the rule of law. Since the Arbour
24. SOLICITOR GENERAL OF CANADA, REPORT OF THE COMMISSION OF
INQUIRY INTO CERTAIN EVENTS AT THE PRISON FOR WOMEN IN KINGSTON (1996)
(Can.), available at http://www.elizabethfry.ca/arbour/ArbourReport.pdf.
25. Id. at vi.
26. Id. at 194.
27. Id. at 190.
28. Id. at 191.

13

2010]

CANADIAN FEDERAL CORRECTIONS

1525

Report of 1996, several other internal and external reports
have all observed similar fairness and non-compliance issues as
highlighted in the Arbour Report, and have made similar
recommendations for the independent adjudication of
segregation cases.29
Most interestingly, in 2004, the
Department of Public Safety and Emergency Preparedness
Canada undertook its own evaluation and again found that the
Service’s repeated attempts to achieve compliance with the rule
of ,law and fair decision-making through operational
enhancements to administrative segregation processes did not
yield sufficient, sustained or desired results. The Department
recommended to the CSC’s Executive Committee that it
implement and test models of independent adjudication, but
not surprisingly, again this recommendation was rejected.
More recently, the Office of the Correctional Investigator
recommended that the Correctional Service immediately
implement independent adjudication of segregation placements
of inmates with mental health concerns.30
Meanwhile, the situation of segregated prisoners (many of
whom are mentally ill) has deteriorated since 1996, and far too
many lament in harsh conditions of confinement. Statistics
from the Correctional Service of Canada (CSC) indicate that it
made a staggering 7,619 placements in administrative
segregation, and that on any given day, there were, on average,
approximately 904 offenders in segregation during fiscal year
2008-09. The number of placements is astonishing given that
the total incarcerated population in the CSC’s maximum- and
medium-security institutions that have segregation units is
less than 10,000 prisoners. Moreover, a snapshot of the
29. See, e.g., CANADIAN HUMAN RIGHTS COMM’N, PROTECTING THEIR
RIGHTS: A SYSTEMIC REVIEW OF HUMAN RIGHTS IN CORRECTIONAL SERVICES FOR
FEDERALLY SENTENCED WOMEN (2003) (Can.); CROSS GENDER MONITORING
PROJECT, THIRD AND FINAL ANNUAL REPORT (2000) (Report submitted to the
Correctional Service of Canada by Thérèse Lajeunesse and Associates Ltd.);
MICHAEL JACKSON, JUSTICE BEHIND THE WALLS: HUMAN RIGHTS IN CANADIAN
PRISONS (2002) (Can.); Report of the Sub-Committee on the Corrections and
Conditional Release Act of the House of Commons Standing Committee on
Justice and Human Rights, A Work in Progress (2000) (Can.); M. Yalden,
Correctional Service of Canada, Human Rights and Corrections: A Strategic
Model (1997).
30. OFFICE OF THE CORRECTIONAL INVESTIGATOR, ANNUAL REPORT OF THE
OFFICE OF THE CORRECTIONAL INVESTIGATOR 2007-08 (2008), available at
http://www.oci-bec.gc.ca/rpt/annrpt/annrpt20072008-eng.aspx.

http://digitalcommons.pace.edu/plr/vol30/iss5/9

14

1526

PACE LAW REVIEW

[Vol. 30:5

segregated offender population indicates that on April 12, 2009,
almost 37 percent (311 of 848) of segregated offenders had
spent over sixty days in administrative segregation. It is clear
that independent adjudication is a viable solution to ensure
that fair decisions are made and that least restrictive
alternatives to administrative segregation are applied
promptly and consistently.
B. The Correctional Investigator’s Reporting Relationship
The second area of external oversight that could be
enhanced deals with the reporting relationship of the OCI to
Parliament. In the case of both annual reports and urgent
reports, the Correctional Investigator submits the reports to
the federal Minister of Public Safety who, in turn, must submit
the reports to both Houses of Parliament within thirty sitting
days. A key element of any Ombudsman operation is the
independence of the office from the government organization it
is mandated to investigate.
This independence has
traditionally been established and maintained by having the
Ombudsman report directly to the legislature. The current
reporting relationship of the Correctional Investigator through
the federal Minister of Public Safety, given the Minister’s
direct responsibility for federal Corrections, has been an
ongoing point of debate within the corrections field for a long
time. Since its creation in 1973, the OCI has advocated for the
establishment of direct legislative reporting (i.e., not via the
Minister).31
Reporting directly to Parliament is more
consistent with the traditional role of Ombudsman offices,
within and outside Canada. It would help ensure that the
Correctional Investigator’s independence is never questioned
and truly establish the Office at arms length from the agency it
oversees.

31. OFFICE OF THE CORRECTIONAL INVESTIGATOR, ANNUAL REPORT 1973-74
(1974) (Can.).

15

2010]
C.

CANADIAN FEDERAL CORRECTIONS

1527

Optional Protocol to the Convention against Torture
(OPCAT)

The OPCAT was adopted by the United Nations General
Assembly in December 2002.32 Canada was a member of the
group that drafted the OPCAT and voted in favour of its
adoption. Canada has been a signatory to the Convention
against Torture since 1987, but has yet to sign and ratify the
OPCAT. As of September 2009, there were forty-nine State
Parties and twenty-four Signatories to the OPCAT.
The OPCAT establishes a system of regular visits
undertaken by independent international and national bodies
to places where people are deprived of their liberty, in order to
prevent torture and other cruel, inhuman or degrading
treatment or punishment. The OPCAT’s objective is to prevent
torture through dual proactive inspection mechanisms.
The OPCAT compels State parties to permit visits to any
place within their jurisdiction where persons are deprived of
their liberty by a public authority. This mandate, to prevent
torture and other cruel, inhuman or degrading treatment, is
accomplished by:

•

Creating both an independent international
and national oversight mechanism;

•

Establishing a system of regular visits
conducted by both mechanisms; and

•

Allowing inspections in places where people
are deprived of their liberty.

The creation of a national review mechanism as described
in the OPCAT would include powers to: examine the treatment
of persons deprived of their liberty in places of detention; make
recommendations to the relevant authorities with the aim of
improving the treatment and the conditions of the persons
32. Optional Protocol to the Convention against Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 57/199,
U.N.
Doc.
A/RES/57/199
(Dec.
18,
2002),
available
at
http://www2.ohchr.org/english/law/cat-one.htm.

http://digitalcommons.pace.edu/plr/vol30/iss5/9

16

1528

PACE LAW REVIEW

[Vol. 30:5

deprived of their liberty and to prevent torture and other cruel,
inhuman or degrading treatment or punishment, taking into
consideration the relevant norms of the UN; and to submit
proposals and observations concerning existing or draft
legislation pertaining to persons being deprived of their liberty.
Recently, in his Annual Report 2007-08, the Correctional
Investigator again encouraged the Canadian Government to
demonstrate its leadership on the international scene by
signing and ratifying this important human rights
instrument.33 Moving quickly on ratification would add to
Canada’s long historical tradition of promoting and defending
human rights and democratic values, both domestically and
abroad.
VI. Conclusion
Correctional Ombudsman offices are an effective counterweight to the natural tendency of large social control
institutions to overreact to social and political pressures. The
need for independent oversight increases when law and order
become politicized. A correctional authority may become lax in
its attitude towards human rights if it operates within a
political climate that encourages calls for harsher measures
against prisoners. Prison Ombudsman offices, which rely on
recommendation, persuasion and publicity to effect change, will
have great difficulties resolving systemic issues in these
circumstances.34
As an oversight agency, the Office of the Correctional
Investigator continues to face many challenges. However,
since its creation, the Office has been an important part of
safeguarding the rights of offenders and in making Canada a
safer place. Public safety is enhanced by ensuring that
offenders are treated fairly, provided the necessary assistance
to become law-abiding citizens, and safely reintegrated into
society in a timely and supported fashion.

33. OFFICE OF THE CORRECTIONAL INVESTIGATOR, ANNUAL REPORT OF THE
OFFICE OF THE CORRECTIONAL INVESTIGATOR 2007-08, supra note 30.
34. Zinger, supra note 1, at 135.

17