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The Model Segregation Code

My purpose in writing Prisoners of Isolation was not only to expose the serious injustices and abuses of power taking place in segregation units in Canadian penitentiaries but also to bring about fundamental changes in the law to ensure that these injustices would no longer be tolerated. My critique of existing law and practice focussed on three interrelated areas: the criteria justifying segregation, the process through which prisoners were segregated and their segregation reviewed, and the conditions under which prisoners were held in segregation. To encourage the creation of a principled and fair process through which segregation decisions were made and a system of checks and balances to protect against the abuse of the involuntary segregation power, I drafted a "Model Segregation Code" (Jackson, Prisoners of Isolation, Appendix A).

The first part of this code addresses the criteria which, in a principled system of corrections, would justify segregation. At the time, there were no legally binding criteria for segregation beyond "the maintenance of good order and discipline" or "the best interests of an inmate":

The failure of the 1975 Vantour Study Group Report on Dissociation to bring about any change in an arbitrary process is not in the least surprising in light of the Report’s refusal to require greater specificity in the criteria for administrative segregation. Without such criteria a review process, however elaborate, will fail to render an unprincipled decision any more principled or fair. So long as the review is of a decision that can be made without reference to principled criteria and without any factual underpinning, the process will remain illegitimate in the minds of those on whom it is imposed. (Jackson, Prisoners of Isolation at 207)

The Model Code would justify segregation on several bases. First, it would authorize segregation to facilitate an investigation of allegations that the prisoner is implicated, on reasonable and probable grounds, in specified serious criminal or disciplinary offences, where there is a substantial likelihood that either the offence will be continued or the prisoner will intimidate potential witnesses to the offence. The code thus recognizes the legitimate institutional interest in empowering prison administrators to segregate prisoners pending an investigation under certain circumstances. However, because this is an exceptional power not granted to law enforcement authorities outside of prison, and because segregation pending investigation has been abused within the penitentiary system, the Model Code places time constraints on this basis for segregation, coupled with an obligation on the investigating authority to exercise all due diligence in completing the investigation. Thus, segregation for investigative purposes is to be limited to two weeks’ duration, subject to an extension upon demonstration by the authorities to an independent adjudicator that they have exercised such due diligence and that the further time is required to complete the investigation. Upon such demonstration, there is a one-month limit on the basis that, given the relatively focussed nature of investigations into offences committed in prisons and the accessibility of people to be interviewed, a month is a reasonable length of time for the completion of the investigation and the laying of charges.

The Model Code next deals with the situation in which charges, of either a criminal or a disciplinary nature, have been laid against a prisoner. Outside of a prison context, the detention of a person charged with an offence pending trial is specifically dealt with in the Criminal Code. The Model Segregation Code seeks to tailor the justifications for pre-trial detention in the larger criminal justice system to the special circumstances of prison life. Thus, pre-trial segregation is permitted under the Model Code in the case of charges involving actual or threatened violence, wilful destruction of property, or disobedience to orders, where there is a substantial likelihood that the offence will be continued or repeated.

The Model Code contemplates a further basis for segregation in a situation where investigations have been completed but no formal disciplinary or criminal charges have been laid. This is intended to deal with cases in which the primary evidence against the suspect comes from prisoner informants whose safety will be jeopardized if they are required to give evidence in a formal hearing. This exceptional power to restrict a prisoner’s institutional liberty in the absence of any charge is unknown to our criminal justice system outside of prison walls; its justification in a prison context must therefore be predicated upon a compelling correctional necessity. The Model Code proceeds on the assumption that such a compelling necessity can be made out in circumstances where the institution has credible information that a prisoner has committed, attempted to commit, or plans to commit acts which represent a serious and immediate threat to the physical security of the institution or the personal safety of the staff or prisoners. The code would seek to prevent the abuse of this exceptional power by circumscribing it with the requirement that the threat be serious and immediate, that it be established beyond a reasonable doubt, and that it be so established to the satisfaction of an independent adjudicator.

The Model Segregation Code also contains a segregation review process designed to ensure a fair and independent application and review of the criteria in individual cases. It proposes a process which would permit the warden to order segregation for up to seventy-two hours without a hearing providing that written reasons for the order are given to the prisoner within twenty-four hours. At the end of the seventy-two-hour period, a full hearing must be held, at which time the institution’s case would be presented to an independent adjudicator in the presence of the prisoner unless there is a substantiated claim of the need to maintain confidentiality of particular evidence, in which case the adjudicator would summarize that evidence for the prisoner. The prisoner would have the right to cross-examine witnesses, save those to whom confidentiality was extended, and to present evidence on his own behalf, including the calling of witnesses. The prisoner would have the right to be represented by counsel at the hearing. The adjudicator would be required to provide detailed written reasons for the decision. If continued segregation was authorized, further reviews would be required every week, subject to the same procedural requirements. At these reviews an onus would be placed on the institution to develop a plan to reintegrate the prisoner into the population, and the adjudicator would monitor that plan at any subsequent reviews. Except under very limited circumstances, segregation would be terminated after a ninety-day period.

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