The Implementation in Canada of the UN Standard Minimum Rules for the Treatment of Prisoners: A Practitioner’s Perspective

Abstract

Abstract This article provides a practitioner’s view of the extent to which the 1955 UN Standard Minimum Rules for the Treatment of Prisoners (SMRs) have been utilized in Canada. The author reviews how the SMRs are being used by national authorities, civil society organizations and criminal law practitioners in Canada and presents reflections as to how the SMRs could be better utilized to ensure that prisoners’ rights are protected in Canada. The SMRs, which, as revised in 2015, are often referred to as the Nelson Mandela Rules, are not in themselves binding upon states. However, they do carry weight: this is evidenced by the UN human rights bodies which have invoked the SMRs as a minimum universal standard in interpretations of binding international legal standards in their decisions and comments. Furthermore, the SMRs (traditionally classified as ‘soft law’) provide key stakeholders with useful and practical guidelines on all aspects of prisoners’ rights. This article argues that the SMRs are being utilized to a degree in Canada, but that there is room for improvement. Canada is, in general, rather insular in its application of soft law standards. The Canadian courts have ruled, for example, that the SMRs are not binding in the domestic context. Thus, within the context of litigation, compliance with the SMRs is a challenge. Furthermore, a lack of legal literacy and training in prisoners’ rights in general and in the SMRs more specifically is evident in Canada. The author’s view is that legal training on the SMRs for criminal law practitioners and the judiciary would be one significant step towards more effective utilization of the SMRs in Canada.