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Can Private Prisons be Constitutional?

This week I was honoured to be quoted in this story (complete with a professional photograph of me) which appeared on the front page of the Lawyer’s Weekly.  The article, which I was interviewed for back in November, was about private prisons and whether they are something that could be implemented in Canada in the same way that they have become relatively normal in the United States.

I spoke about my concerns from a constitutional perspective.  I explained that offenders who have been sentenced to a term of imprisonment still retain their constitutional rights (subject to reasonable limits) and that it could become a problem for governments (either federal or provincial) to expect private companies to protect these rights on their behalf.  (The Charter only applies to one’s relationship with government, however my interpretation is that this requirement should extend to these, albeit hypothetical, corporations who would be providing a service on behalf of government.  If there are any constitutional scholars who disagree then please post your thoughts as a comment.)

The other issue is that it would be in the best interest of a private company to keep people in prison longer as it would make them more money.  While I’m sure the role of the National Parole Board (who determine whether a federally sentenced offender should be released) would not be privately contracted, any prison company could affect factors that assist an individual in receiving parole such as their participation in programs and prison disciplinary record.

Personally I see private prisons as a bad idea and something that just cannot work within the Canadian legal system and method of corrections.  As the Lawyer’s Weekly story explained, there was an attempt at a private jail in Ontario in 2001.  The 1200 inmate jail closed five years later amid numerous concerns.  Hopefully this was a lesson well learned.

This blog post was written by Toronto Criminal Lawyer Adam Goodman.  Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.