September 1998: A Brew Party and a Prosecution Go Sideways
In the fall of 1998 there was a noticeable increase at Kent Institution in the number of seizures of home brew, in part attributed by the staff to a reduction in the flow of drugs entering the institution. In September a quantity of home brew found its way into the common room in B unit and the resulting brew party triggered a sequence of events that resulted in the segregation of the prisoners involved and their appearance before the Independent Chairperson on charges of causing or participating in a disturbance. I will be reviewing these events later in the book when dealing with the law and practice governing administrative segregation, but at this juncture I will be addressing the disciplinary aspects of these cases because, as the final act in my observations of prison disciplinary hearings, they highlight many of the themes that I have sought to develop in the last four chapters.
The events of September 15 started innocently enough. After dinner a group of prisoners gathered in the B unit common room to watch television and play pool. A number of the prisoners began drinking home brew and over the course of the evening became drunk. Eventually the increasing noise coming from the room attracted the attention of one of the officers. Upon looking through the door into the common room and seeing the state of some of the prisoners, he then locked the door and called for back-up. Some of the prisoners then proceeded to push the pool table against the door and covered up both the glass window in the door and the windows looking out to the courtyard to prevent the staff from looking into the room. The situation rapidly deteriorated when the prisoners were called upon to open the door and allow the staff to come in. The prisoners claimed to have taken one of their number hostage and threatened to harm him if the staff attempted to enter the room. They also demanded drugs. Because Kent's Emergency Response Team had temporarily withdrawn its services because of a dispute over the suspension of its Team Leader, the institution called in the RCMP Emergency Response Team. The stand off between the prisoners and the authorities lasted all night, during which extensive damage was done by the prisoners to the common room, including the destruction of two large screen TV sets and the pool table. Eventually at around five in the morning on September 16, the nine prisoners surrendered and were taken to segregation. In the course of the night's events it became increasingly apparent to the staff that the "hostage-taking" was a hoax designed either to forestall the staff's taking the room by storm or to increase the prisoners' bargaining power to get drugs. Although one prisoner did sustain a small cut on his leg it was not serious and did not require any medical attention beyond a bandage.
I interviewed several of the nine prisoners involved in this incident, following their 5 day segregation review. In my interviews with them, they maintained that they had been trapped inside the pool room when the officer locked the door and that they had not participated in the destruction of the furniture or the damage to the room. One of them claimed that he had not even taken a single drink but had come into the room earlier in the evening solely for the purpose of playing pool. None of the men had yet received any notice of disciplinary charges but in their discussions among themselves on the range and in the exercise yard, they had talked about a joint strategy to defend themselves when they were charged. Because they did not think the institution knew who were the instigators or who had caused the actual damage, they all intended to plead not guilty and give evidence that they were innocent bystanders and had not participated in the disturbance, hoping that in the absence of the institution being able to prove which of them was actually involved, the Independent Chairperson would have to acquit them all. They asked me what I thought of this defence strategy. I told them that if every one of them went to court with the same story, it would be crystal clear to the Independent Chairperson that some of them were lying. The institution's evidence would establish that the door had been barricaded, the windows blacked out, demands had been made for drugs, claims of hostage-taking were asserted and extensive damage to the room had taken place. Clearly this had not been done by phantom prisoners but by some or all of the nine men inside the room. If everyone claimed to be innocent it would be open to the Independent Chairperson to reject the evidence of each one of them as being not capable of belief and to draw the inference that each one of them had been involved in the disturbance and in the destruction of property. The prisoners I interviewed, after digesting my opinion, asked what else they could do to defend themselves given that there was no way that they would point the finger at those prisoners who were actually involved in instigating the incident and causing the damage. I advised them that to give their claim of innocence an air of reality in order to raise a reasonable doubt in the chairperson's mind, their evidence would have to go beyond a bald statement that "it wasn't me; I was just watching television, or playing pool." Other evidence that would give their claim some credibility would be their prior conduct in the institution, for example, having no prior record of being involved in a brew party or being in possession of home brew, having a low profile in their units and maintaining a good relationship with staff that would support the inference that they were not the type of prisoners to become involved in this sort of disturbance. As did so many prisoners during the course of my research, these prisoners asked me if I would represent them when they were eventually charged. I advised them that my research role prevented me from acting in this capacity and I referred them to Prisoners' Legal Services.
My interviews with these prisoners gave greater credence to the scenario that some of the nine prisoners were indeed trapped inside the pool room and after the room was barricaded were in the position of not being able to leave the room without putting their lives and safety in considerable jeopardy. Although I had been told that the staff had advised the prisoners soon after the room was barricaded that if any prisoners wished to leave and avoid any further problems they should do so at that time, the prisoners I interviewed did not believe that they could take up this offer because to do so would be a demonstration of lack of solidarity with their peers and would pose a significant threat to their safety amongst other prisoners in general population.
It was also clear to me that the jeopardy which these prisoners faced was substantial. Even though the hostage-taking was believed to be a hoax, the institution had taken an extremely serious view of this incident, involving as it did calling in of the RCMP and extensive media coverage. At the nine prisoners' 5 day segregation review they were told that in addition to any disciplinary or criminal charges that they might face, the institution was also reviewing their cases to determine whether they should be transferred either to the Special Handling Unit or other maximum security institutions. There was no indication that the institution was prepared to draw any distinctions between the nine men and the degree of their participation in the incident. If they went to the disciplinary hearings with their initial plan of a blanket claim of innocence, the likelihood was high that they would all be convicted and receive sentences not only involving segregation but, in light of the extensive damage done to the common room and the furniture, orders of restitution at the upper limit permitted by the CCR Regulations of $500.
Based upon my interviews with some of the prisoners, it appeared that properly represented they might have a good defence to disciplinary offences that involved their intentional participation in the events of the night of September 15. I therefore spoke to Prisoners' Legal Services and recommended that notwithstanding their general policy of not providing legal representation to prisoners facing serious disciplinary offences -- based upon a lack of resources to cover the demand -- these cases might be ones in which an exception should be made. By this time, the nine prisoners had been charged with the disciplinary offence of causing or participating in a disturbance. Prisoners' Legal Services contacted Mr. Peter Benning who agreed to represent two of the prisoners I had interviewed, Mr. Hickey and Mr. Kolossock, both of whom claimed that they had not participated in the damage. Mr. Hickey, as the most articulate of the prisoners, had initially acted as their negotiator in communicating the other prisoners' demand for drugs and for this reason was particularly concerned that the institution would attempt to label him as the instigator and ring-leader of the group.
The nine men made their first appearance in disciplinary court on October 7, 1998 and the cases were all adjourned for trial the following week, October 14, when Mr. Benning would be able to appear. The Independent Chairperson, Mr. Routley, upon being advised prior to the hearing that Mr. Benning would be representing some of the prisoners, suggested that these cases should be heard first, so that he would have the advantage of receiving legal submissions that might also be applicable to the cases of some of the other prisoners. At Mr. Hickey's hearing, Mr. Benning made an application that the charge against Mr. Hickey be dismissed on the basis that there had been an unreasonable delay in the laying of the charge. He submitted that the CCRA, the CCR Regulations and the Commissioner's Directives all contemplated an expeditious disciplinary process, particularly where prisoners were in administrative segregation; that in these cases the institution had failed to lay the charge within a reasonable period, thereby prejudicing the prisoners' right to an early hearing at which they could present their case and, if found not guilty, avoid further segregation.
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