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The CCRA -- Old Wine in New Bottles?

Independent adjudication of segregation decisions was not incorporated into the 1992 Corrections and Conditional Release Act. However, many pre-1992 features of the administrative segregation process were elevated from policy and procedures set out in Commissionerís Directives to legally binding provisions in the CCRA or the Corrections and Conditional Release Regulations (although some important provisions are still relegated to the Directives). A full understanding of the current legal and administrative framework within which the case studies in the following chapters are set necessitates reading together the provisions contained in the CCRA, the CCR Regulations and the Commissioner's Directives. For ease of reference these provisions are set out in Appendix B .

A comparison between the current legislative and administrative framework and the regime in place when I began my inquiry into prison justice in 1972 uncovers significant changes. The current framework sets out detailed, structured review and accountability mechanisms involving the Segregation Review Board, the warden, and Regional Headquarters. There are requirements for hearings at which a prisoner has the right to make representations; to make that right effective, the prisoner must be given three daysí advance notice, in writing, of the hearing and the information that the Board will be considering at the hearing. There is a further requirement that a plan be developed to resolve the situation that led to the segregation and, in cases of extended segregation, that a plan be developed within sixty days which addresses in detail the schedule of activities regarding a prisonerís case management services and his access to spiritual support, recreation, psychological counselling, administrative education and health care services.

If, as I have maintained, a critical part of preventing the abuse of segregation power is to circumscribe that power with legally binding rules, it would seem that the CCRA and the CCR Regulations provide that authority. Senior officials at National Headquarters, while acknowledging that the new provisions did not go as far as my Model Segregation Code, suggested shortly after the enactment of the legislation that I should take satisfaction from the fact that many features in the CCRA reflected ideas and proposals I have advocated over the years. It is important, therefore, to understand the principal differences between the current legislative framework and the Model Segregation Code.

The first difference is that the criteria for segregation in the CCRA are much more broadly based than those set out in the Model Code. For example, the power to segregate pending an investigation of a criminal charge or a serious disciplinary offence is not limited to cases where the charge involves actual or threatened violence, attempted escape or offences where there is a substantial likelihood of a repetition or a continuation of the offence; neither are there any specific time limits on the duration of this form of segregation to ensure that the investigations are conducted in a timely manner.

The omnibus ground for segregation contained in the CCRA, s. 31(3)(a) -- "that (i) the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person, and (ii) the continued presence of the inmate in the general inmate population will jeopardize the security of the penitentiary or the safety of any person" -- while loosely based upon a provision in the Model Code, significantly weakens the original language. The burden of proof has been reduced from "beyond a reasonable doubt" to "reasonable grounds to believe"; the need for proof of the immediacy of the jeopardy or threat is omitted, and that threat or jeopardy can be to the "security" of the institution rather than to the more narrowly drafted "physical security" of the institution in the Model Code, a term designed to refer to escape risks. One of my grave concerns with the broad sweep of s. 31(3)(a) was that it would become the general ground for segregation, providing little improvement over the "good order and security of the institution" contained in the old Penitentiary Service Regulations.

The second significant difference between the CCRA provisions and the Model Code is that under the CCRA, segregation decisions continue to be made and reviewed by correctional administrators with no element of independent decision-making. The third difference is that neither the CCRA nor the Regulations specify the specific rights and privileges of segregated prisoners; the legislation continues the approach of the old Penitentiary Service Regulations, which declare that prisoners in segregation have the same rights, privileges, and conditions of confinement as the general population, except those that cannot reasonably be given owing to limitations specific to the administrative segregation area or security requirements. This is identical to the pre-1992 legal regime which supported the continuation of inhumane and debilitating conditions in segregation units. Although the Commissionerís Directives do set out some affirmative entitlements of prisoners to specific services, they are not as extensive as those set out in the Model Segregation Code. Furthermore, because there is no role for independent adjudication, there are no mechanisms built into the legal and administrative structure of the segregation process to ensure respect for and compliance with those entitlements, as exist in the Model Segregation Code. Rather, prisoners must rely on the internal grievance process and the general avenues for external review provided by the Correctional Investigator or the courts. The final difference between the CCRA provisions and the Model Segregation Code is that the CCRA places no limitation on how long a prisoner can be confined in administrative segregation. As outlined, the Model Segregation Code would, except under exceptional circumstances, limit this to a period of ninety days.

When I began my work at Matsqui and Kent in 1993, my agenda was to assess the reality of change in the use of segregation and in the conditions under which prisoners in segregation were confined. Had the new regime resulted in a principled and fair process? If not, did the fault lie with a failure to respect and implement the law or with deficiencies in the law itself?

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