A little-known clause in the Conservatives' omnibus anti-crime bill would remove a "golden rule" of corrections – one that could result in more inmates being subjected to ill treatment while in prison, advocates say.
The sweeping legislation, which includes mandatory minimum sentences for some crimes and tougher treatment of violent youth, triggered a divide this week between the federal government and Canada's two most populous provinces. Both Ontario and Quebec have said they should not be forced to pay the costs of a federal bill that would send more people to prison for longer sentences.
Several other provinces have declared their support for the bill, though most have added that they still expect the federal government to step in with extra funding.
But as the political battle over the cost of the proposed measures heats up, some observers are flagging a clause in the bill that would eliminate a principle requiring guards to use the "least restrictive measures" necessary to control prisoners and maintain safety.
Correctional Investigator Howard Sapers called the principle a "golden rule" of corrections and said his staff uses it regularly to determine whether restrictions imposed on prisoners, such as solitary confinement and use of physical restraints, are appropriate.
Instead, guards would be asked to use "necessary and proportionate" restrictions, adding a new layer of subjectivity to decisions on everything from use of force to prisoner access to rehabilitation programs.
The union that represents prison guards says it supports the change because not all prisoners want to be rehabilitated, and guards should be allowed to use their discretion when determining how to deal with challenging inmates.
"Currently, the way it works, all inmates have a right to all services. They don't have to make any efforts to obtain them," said Pierre Mallette, president of the Union of Canadian Correctional Officers.
Mr. Mallette said some inmates, particularly those who remain involved in organized crime while in prison, hinder the rehabilitation efforts of other inmates and guards need to be able to treat them differently.
A spokeswoman from the office of Public Safety Minister Vic Toews said the change is based on a 2007 review of Canada's correctional service and is meant to modernize the concept of least restrictive measures.
But Kim Pate, executive director of the Canadian Association of Elizabeth Fry Societies, which advocates on behalf of women in the justice system, said the change could result in more cases like that of Ashley Smith, the 19-year-old woman who died in a Kitchener prison four years ago after spending years in solitary confinement.
She said she believes the least restrictive measures principle was ignored in Ms. Smith's case because the teenager was difficult to deal with.
"I shudder to think of what kinds of human rights abuses could occur and are almost undoubtedly likely to occur in the prisons if they're seen to have unfettered discretion to treat prisoners in a way that they consider appropriate," she said, adding those concerns would be compounded by overcrowded prisons that put additional strains on guards.
Mr. Sapers said the new bill would dramatically increase the population in prisons and result in overcrowding, since planned prison expansions won't be ready in time to accommodate the influx of people who would be sentenced under the new bill.
About 13 per cent of the male prison population is "double bunked," which means inmates share a cell designed for a single person with another prisoner, a number Mr. Sapers estimates will more than double to 30 per cent under the new bill before enough new prison space is created to relieve the strain.