NCJ Number
51866
Journal
International Journal of Offender Therapy and Comparative Criminology Volume: 22 Issue: 2 Dated: (1978) Pages: 164-178
Date Published
1978
Length
15 pages
Annotation
THE HISTORICAL BACKGROUND RELATING TO THE RIGHTS OF CANADIAN CITIZENS IN RELATIONSHIP TO STATE POWER IS TRACED WITH PARTICULAR FOCUS ON INMATES, AND THE ROLE OF THE COURTS IN INSURING THESE RIGHTS IS DISCUSSED.
Abstract
THE ENGLISH ROOTS OF CANADIAN LAW ARE TRACED. PARTICULAR ATTENTION IS GIVEN TO THE COMMON LAW TRADITION OF LIMITED STATE AUTHORITY AND OF IDEALS THAT PROTECT THE CITIZEN AGAINST ABUSIVE AND UNBRIDLED EXERCISE OF STATE POWER. THE SOVEREIGN IS SEEN TO EXIST TO SERVE AND PROTECT THE RIGHTS OF THE PEOPLE AND HAS NO POWER TO THWART THE INDIVIDUAL CITIZEN'S PURSUIT OF HAPPINESS AND SELF-SATISFACTION EXCEPT WHERE SPECIFICALLY PERMITTED BY LAW FOR THE OVERALL GOOD OF THE COLLECTIVE GOVERNED. THE LAW PROVIDES FOR IMPRISONMENT WHEN CITIZENS ENGAGE IN SPECIFIED BEHAVIOR DEEMED THREATENING OF THE RIGHTS OF OTHER CITIZENS. THIS CAN ONLY HAPPEN, HOWEVER, AFTER THE DUE PROCESS OF LAW HAS BEEN EXERCISED ON BEHALF OF THE CITIZEN CHARGED. SHOULD IMPRISONMENT OF CITIZENS OCCUR, THE LAW PROVIDES ONLY THAT THEIR FREEDOM OF ASSOCIATION AND PURSUITS WITHIN THE COMMUNITY BE RESTRICTED OR TERMINATED, THAT THEIR PROPERTY BE TAKEN THROUGH A FINE, AND THAT CERTAIN OTHER RIGHTS, SUCH AS VOTING, BE SPECIFICALLY SUSPENDED FOR A PRECISE PERIOD. THE CITIZEN RIGHTS OF INMATES ARE CONSIDERED VIOLATED WHEN OFFICIALS INCREASE INMATE DEPRIVATION BEYOND THAT PRECISELY DESCRIBED BY LAW. THE REMEDY FOR SUCH VIOLATIONS IS SEEN TO LIE WITH THE COURTS, WHICH HAVE THE POWER TO REVIEW AND REDRESS OFFICIAL ACTION. SPECIFIC COURT CASES ARE CITED TO SHOW HOW THE COURT HAS DEALT WITH ALLEGED VIOLATIONS OF INMATE RIGHTS. IT IS ARGUED THAT THE CANADIAN COURTS HAVE TOO FREQUENTLY REFUSED TO INTERVENE WHERE ADMINISTRATIVE ACTIONS OF PAROLE BOARDS AND OTHER CORRECTIONAL BODIES HAVE AFFECTED INMATE RIGHTS. IT IS CONCLUDED THAT THE COURTS HAVE NOT EXERCISED THEIR RESPONSIBILITY TO PRESERVE CITIZEN RIGHTS OF INMATES UNDER THE ASSAULTS OF ARBITRARY STATE ACTIONS TAKEN BY CORRECTIONS OFFICIALS. REFERENCES ARE PROVIDED. (RCB)