The third part of the Model Code addresses the conditions of segregation, particularly the fact that even though the Penitentiary Service Regulations provided that a segregated prisoner should not be deprived of any privileges or amenities, in most segregation units very few privileges and amenities were provided. This deprivation was based on an enormous qualification in the Regulations : "except [those privileges and amenities] that cannot reasonably be granted having regard to the limitations of the dissociation area and the necessity for the effective operation thereof" (s.2.40(2)). The depressing reality in 1975 at the British Columbia Penitentiary, and at Kent Institution ten years later, was that this qualification was used to justify discriminatory and debilitating treatment of segregated prisoners.

The Model Segregation Code attempts to deal with this problem by setting out in affirmative terms the rights and privileges to which segregated prisoners are entitled and the specific bases upon which restrictions of these rights can be authorized. Where a prisoner is deprived of a right or privilege to which he is normally entitled, that deprivation must be reviewed at a segregation review hearing by an independent adjudicator and can only be continued with that adjudicator’s written authorization. Similarly, the adjudicator is empowered to make findings regarding alleged violations of the Model Code in relation to the rights and privileges of segregated prisoners and may issue written directions to the warden to remedy those violations. In the event that there is non-compliance with these directions, the adjudicator is required to prepare a report detailing the nature and extent of the violations, the directions issued, and the circumstances of non-compliance; a copy of that report is to be provided to the warden and the prisoner and also forwarded to the Solicitor General.

The Model Segregation Code also requires that when a prisoner has been in segregation for more than thirty days, the adjudicator shall hear the evidence of two psychiatrists or psychologists on the effects of such continued segregation on the prisoner. One of these psychiatrists or psychologists is to be nominated by the warden and the other by the prisoner, although provision is made for a joint nomination. Where the adjudicator determines, based upon the expert evidence or other evidence, that continued segregation will cause the prisoner substantial psychological or physical harm, the adjudicator shall order the prisoner released into the general population.

It should be apparent that the role of the independent adjudicator is the linchpin in the Model Segregation Code. That role exists to ensure that there is a factual basis to justify segregation measured against specific criteria; to assess the reliability of confidential information which cannot be disclosed to the prisoner; to ensure that the prisoner receives a fair hearing and is able to present an answer and defence to any allegations made against him; and to ensure compliance with the time constraints placed upon segregation and with the law regarding the conditions of segregation.

Independent adjudication in the Model Segregation Code has four intersecting justifications. First, the issues surrounding involuntary segregation are such that the interests of prisoners and correctional administrators are in conflict and facts and allegations are often in dispute; fairness requires an independent and unbiased decision-maker. Second, the recommendations of the Study Group on Dissociation failed to bring about real change, and there is a continuing issue of non-compliance with the law when segregation decisions are left with correctional administrators. Third, the potential for abuse and the potentially debilitating effects of long-term segregation require that limits be placed upon segregation in the form of specific criteria for placement, review, and the length of time for which segregation can be maintained; effective application and enforcement of these limits requires an independent adjudicator. Fourth, there is a need for a process to ensure that the rights and privileges of prisoners in segregation are respected, and this will be better achieved through an independent adjudicator.

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