¶ … Rights Should Prisoners Have? Discussions of human rights frequently focus on the rights that people should have in a free society. They look at the types of rights that free people should be able to exercise without interference from their government. However, not all discussions of human rights focus on the rights of the free. Instead, some discussions look at the rights that duly convicted criminals should have. Some scholars conclude that prisoners should have the basic rights as free men. This is a ridiculous conclusion. Looking at the Canadian Charter of Rights and Freedoms, it is clear that some of those rights are not meant for prisoners. In fact, the very nature of imprisonment hampers the exercise of some of those rights. These rights include the freedom of mobility, the freedom of peaceful assembly, and the freedom from unreasonable search or seizure. Furthermore, it is important to keep in mind that there are specific rules governing those who have been accused of crimes, but that those rights should not be taken to apply to those who have been convicted of crimes.

Looking at section 6 of the Canadian Charter of Rights and Freedoms, it is clear that not all of the rights guaranteed to Canadian citizens can be naturally extended to prisoners. Section six provides that: "(1) Every citizen of Canada has the right to enter, remain in and leave Canada…[and] (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right (a) to move to and take up residence in any province; and (b) to pursue the gaining of a livelihood in any province" (Canadian Charter of Rights and Freedoms, s. 6). Obviously, a person who has been imprisoned does not and should not have the right to enter or exit the country, or to move and take up residence in any province. Granting prisoners that right would mean that it would be a civil rights violation to ever imprison anyone. Clearly this is not an intended consequence of civil rights in a free society. Because this explicitly stated civil right is one that must be inherently denied to prisoners, it becomes clear that the rights stated are applicable to free persons, and are inapplicable to those who have been duly convicted of a crime and are serving a sentence for that crime.

Of course, the right to mobility is not the only right that would be logically denied to a prisoner. Prisons do not only, by definition, limit prisoner mobility, but also must limit other rights. For example, one of the fundamental freedoms listed in the Canadian Charter of Rights and Freedoms is the freedom of peaceful assembly (Canadian Charter of Rights and Freedoms, s. 2 (c)). Obviously, being confined in a jail, a prisoner is unable and should be unable to exercise the right to join peaceful assemblies outside of jail. However, it is important to realize that the right to peaceful assembly should also be limited within a jail. People are in jail for punishment, and they are imprisoned with other criminals. Law enforcement personnel have a reasonable basis to assume that even peaceful assemblies among groups of convicted criminals could lead to potential problems; therefore, they should have the right to curtail those assemblies. Reasonable restrictions on the number of people in any given group, cell block distribution, and even solitary confinement are essential elements of prison management. They are part and parcel of being imprisoned, and while a free man has the right to peaceful assembly, it is important to keep in mind that convicts are not free men.

Another freedom that is guaranteed in the Charter of Rights and Freedoms is the right to be free from unreasonable search and seizure (Canadian Charter of Rights and Freedoms, s. 8). For free people, this right guarantees a certain level of bodily integrity and privacy. Without reasonable suspicion, the government has no right to engage in the search of private people and residences. However,...

Prisoners are prohibited from having certain items, but contraband makes its way into the prison environment. It is impossible for prison officials to ensure safety for the prison population without routinely looking for contraband. This is critical, because the fact that they are in prison means that people cannot flee when there is a danger, and, if they do not possess contraband items, will be unable to defend themselves against certain weapons. To permit prisoners to have privacy on their persons or in their cells would encourage the collection of contraband items and place the health and safety of all prisoners at risk.
Some people would argue that the fact that the accused are guaranteed certain rights and privileges implies a level of protection for prisoners. However, it is critical to differentiate between the accused and the convicted. Section 11 of the Canadian Charter of Rights and Freedoms provides that:

Any person charged with an offence has the right:

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(e) not to be denied reasonable bail without just cause;

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment (Canadian Charter of Rights and Freedoms, s. 11).

Looking at the above rights, it is clear that they impact pre-conviction rights and are not guarantees for post-conviction treatment. They are simply inapplicable to prisoners who have been duly convicted. Of course, these rights may have a huge impact on the actual prison population, because, those rights may form the basis of most post-conviction relief. However, it is critical to differentiate between post-conviction relief and prisoner's rights. A prisoner who has been properly convicted and sentenced does not have a continuing right to the rights outlined in section 11, based on the original crime. However, if a criminal were to reoffend while in the prison setting, which is not uncommon, it is clear that the rights outlined in section 11 would apply to the accused's new offenses. Despite that, there prison officials may be able to take some limited actions that would seemingly violate those rights. For example, if a convict killed another inmate, he would be presumed innocent of that offense until conviction. However, a prison official would have the right to detain him in solitary confinement until trial, because doing so would ensure the safety of the prison population. The warden could do this because the prisoner has no right to peaceful assembly, as explained above, and, therefore, confining the prisoner to solitary would not violate the presumption of innocence.

Obviously, criminal justice requires a careful balancing of the rights…