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Administrative Segregation on the Eve of the CCRA

The Federal Court in the McCann case, applying the pre- Martineau judicial/administrative distinction, had ruled that the decision to place a prisoner in administrative segregation was by its nature administrative and not judicial, and therefore not subject to the rules of natural justice. A decade later, in Cardinal and Oswald v. Director of Kent Institution, the Supreme Court of Canada extended the procedural duty to act fairly to decisions concerning administrative segregation, stating:

In Martineau (No.2) the Court held that the duty of procedural fairness had been held to apply in principle to disciplinary proceedings within a penitentiary. Although administrative segregation is distinguished from punitive or disciplinary segregation under s.40 of the Penitentiary Service Regulations, the effect on the prisoner is the same and gives rise to the duty to act fairly. ([1985] 2 S.C.R. 643 at 653-4) Also of great significance, the Supreme Court in Cardinal and Oswald ( [1985] 2 S.C.R. 643 ) ruled that the remedy of habeas corpus was available to determine the validity of confinement of a prisoner in administrative segregation and, if such confinement were found to be unlawful, to order the prisoner’s release into the general population of the penitentiary.

The Commissioner’s Directives dealing with administrative segregation were revised and streamlined in 1987. Segregation was authorized pursuant to s. 40(1) of the Penitentiary Service Regulations when no other reasonable alternative existed and:

(a) there are grounds to believe that the inmate has committed, attempted to commit, or plans to commit acts that represent a threat to the security of the institution or the safety of individuals;

(b) the presence of an inmate in normal association would interfere with the investigation of a criminal or serious disciplinary offence;

(c) there is reason to believe that an inmate’s presence in normal association represents a risk to the good order of the institution; or

(d) there is concern for the inmate’s safety. ( C.D. 590 )

The new directive seemed to identify criteria for segregation with greater specificity than the generic "good order and discipline" set out in the Regulations. However, there was only the appearance of change. Most significantly, clause (c) replicated the "good order of the institution" rationale. Granting prison officials this broad-based power made it unnecessary for them to give much consideration to the more focussed criteria of clauses (a) and (b). Predictably, the new directive brought about no substantive change in the resort to the power to segregate prisoners. The following case study illustrates the continuity of customary law governing administrative segregation in the years preceding the enactment of the 1992 Corrections and Conditional Release Act.

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