Remembering Nelson Mandela – Prisoners’ Rights in Canada

Nelson Mandela’s 27 year imprisonment on Robben Island is a stark reminder that the protection of prisoners’ rights remains an ongoing and vital concern in every society, and of a very special interest for international Human Rights law.

The year 2018 marks an auspicious time for human rights. The 70th anniversary of the Universal Declaration of Human Rights falls in the same year as we commemorate the centenary of the birth of Nelson Mandela, one of the greatest voices of human rights in recent times.

Nelson Mandela’s 27 year imprisonment on Robben Island is a stark reminder that the protection of prisoners’ rights remains an ongoing and vital concern in every society, and of a very special interest for international Human Rights law. As Nelson Mandela himself noted, ‘No one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.’

The UN Standard Minimum Rules for the Treatment of Prisoners

Canada played a foundational role in the creation of the UDHR through John P. Humphrey, a noted lawyer and scholar, one of the key drafters of the Declaration. The rights set out in the UDHR extend to prisoners; they do not lose their rights by virtue of their incarceration. Prisoners are entitled to a fair trial and to be free from arbitrary arrest, detention or exile. Moreover, prisoners should not be subjected to torture or cruel, inhumane or degrading treatment or punishment. It is against this backdrop that I reviewed how the UN Standard Minimum Rules for the Treatment of Prisoners (SMRs) are being used by national authorities, civil society organisations and criminal law practitioners in Canada and presents reflections as to how the SMRs could be better utilised to ensure the prisoner’s rights are protected in Canada.

Nelson Mandela’s legacy lives on in the UN Standard Minimum Rules for the Treatment of Prisoners 1955, a body of “soft law” that governs every aspect of a prisoner’s life. In 2015, the Rules were revised and adopted by the UN General Assembly after a five-year revision process and are now known as the UN Mandela Rules. Whilst these rules are not binding on States, they do carry weight and are used by international monitoring bodies as a de minimis universal standard. The Mandela Rules have also been relied on in the jurisprudence of UN treaty bodies including the UN Human Rights Committee and UN Committee against Torture. The Mandela Rules provide practical and specific guidance for policy makers and prison authorities alike on how to apply a human rights framework within the context of prison management.

Yet the Mandela Rules are only as good as their implementation on the ground. A number of countries including South Africa, Thailand, Yemen and Kazakhstan have all taken measures to implement the Mandela Rules into domestic law and practice with varying degrees of success. The effective implementation of the Mandela Rules remains an ongoing challenge for many countries as perennial problems of adequate resources and political buy-in stand in the way.

How Canada is implementing the Mandela Rules

With the support of McGill University’s Centre for Human Rights and Legal Pluralism, I have carried out research into how Canada is implementing the Mandela Rules. I interviewed Corrections officials, criminal practitioners, Parliamentarians, Ombudsmen bodies, Human Rights Commissions and civil society organisations to learn more about implementation of the Mandela Rules in Canada. I asked a number of key questions to understand this conundrum of implementation: to what extent have the Mandela Rules been effectively implemented by the Canadian national authorities? What, if any, are the bars and impediments to implementation of the SMRs? How have they been utilized by civil society and practitioners as an advocacy and/or litigation tool?

The implementation of the SMRs in Canada offers an interesting case study, as Canada prides itself on its commitment to implementing and respecting a strong domestic human rights framework. The language of rights is firmly entrenched in the culture. Canada has been a strong supporter of the Mandela Rules since their inception in 1955.

The evidence tended to suggest that the Mandela Rules are being implemented to a degree by the authorities. One interviewee noted that the authorities did take heed of them when drafting policy instruments and would not seek to draft new or modified norms that clearly went against them. Judicial and political awareness of the Mandela Rules has increased but, in the view of one interviewee, are still seen as “soft law”, or in other words, an unbinding quasi-legal instrument.

But there are obstacles

Yet challenges remain. For example, the Mandela Rules in Rule 25.2 make clear that clinical independence in the treatment of prisoners is paramount. Under the Canadian Corrections Service, Commissioner’s Directive 800 (Health Services) health care professionals are required to provide healthcare to offenders ‘consistent with relevant provincial/territorial and federal legislation, the provincial/territorial regulatory body’s professional conduct standards, as well as CSC policies and practice directives.’ A number of interviewees raised concerns about the lack of independent healthcare in corrections facilities. One practitioner cited the problem of ‘mission creep’ on the part of healthcare professionals in Federal Corrections facilities who would work in the interests of the facility and not the detainee.

The lack of political will and low prioritisation of prisoners’ rights was a recurrent theme amongst interviewees and was cited as an obstacle to the meaningful implementation of the Mandela Rules. In a similar vein, a lack of material resources and budgets played a role in preventing the meaningful implementation of the Mandela Rules at both Federal and Provincial level.

The Mandala Rules are being cited in Canadian courts

On a more encouraging note, a number of practitioners who have cited the Mandela Rules in Court could see their intrinsic value as a human rights norm while, for others, there was some antipathy towards relying on international human rights standards. These practitioners preferred to rely on domestic human rights law, namely the Canadian Charter of Rights and Freedoms in their advocacy. These tensions are symptomatic of the wider challenges around the dualistic nature of the Canadian legal system vis à vis its approach to international law. Whilst the Canadian Courts have reiterated the “presumption of conformity” between international law and domestic law on a number of occasions in its jurisprudence, this only applies to international legal obligations such as treaties. In real terms, it becomes challenging to encourage both the Courts and criminal law practitioners to rely on the SMRs when they have limited value in administrative or judicial proceedings. On the other side, civil society organisations were keen advocates of the Mandela Rules and regularly referred to them in correspondence with the authorities.

My research indicated that there is work to be done in and around educating the legal community in Canada on the value and purchase of international human rights standards. As one practitioner noted with reference to the Mandela Rules, ‘all lawyers should be encouraged to rely on them’. This is a challenge for both human rights educators and the legal community alike. Perhaps a good place to start is with Bar Associations and Human Rights Commissions offering training on the application of international human rights standards in a domestic context.

We owe it to Nelson Mandela!


About the author

Vicki PraisVicki Prais is a British-qualified human rights lawyer with over 20 years experience in the human rights field. She has worked with the United Nations, Council of Europe, the Scottish Human Rights Commission, the British Government and non-governmental organisations in a variety of positions in the field and at Headquarters. Most recently, she was a Human Rights Advisor to the UK Foreign & Commonwealth Office/Prisoners Abroad, where she advised officials on human rights issues affecting British nationals detained overseas. She will be taking up a position as Policy & Programme Manager at Penal Reform International in October 2018 (maternity cover). Vicki was an O'Brien Fellow in Residence at the Centre for Human Rights & Legal Pluralism from February 2018 to June 2018.