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location: publications / books / Justice Behind the Walls / Sector 4 / Chapter 2 Administrative Segregation at Matsqui and Kent,1993-6: The Persistence of Customary Law / Segregation Review at Matsqui -- Non-compliance with the Law

Segregation Review at Matsqui -- Non-compliance with the Law

Although the CCRA requires that the Segregation Review Board conduct a review of a segregated prisoner after five days and every thirty days thereafter, the practice at Matsqui Institution in 1993 was to conduct the five-day review and then review every case on a weekly basis. Prisoners were advised that they could attend these weekly reviews, and in this way administrative practice went beyond the legislative framework. However, in other significant ways the review process failed to meet the requirements of that framework. In Sector 2, Chapter 3, "Operation Big Scoop," I observed how during several meetings of the Matsqui Segregation Review Board conducted in August 1993 the Board failed to discharge its legislative mandate of reviewing cases for the purpose of making recommendations to the warden; segregation decisions were instead made directly by the warden as a matter of institutional policy. The prime example of this was the wardenís decision that prisoners involved in brew parties be kept in segregation until their first court appearance notwithstanding that they had regained sobriety, they had not been disruptive in segregation and their return to general population posed no risk to safety or security.

A second area of non-compliance with the law at Matsqui was that discussion and review of a prisonerís case took place without the participation of the prisoner; when prisoners who had requested that they be allowed to attend their review were seen, it was a postscript to the review which never changed the text of the decision. This administrative practice was seen to be in compliance with the law because s. 21(3)(b) of the CCR Regulations required only that the prisoner "is given an opportunity to be present and to make representations at the hearing." At Matsqui, the prisoner was present for at least part of the hearing and was allowed to make representations. However, the underlying purpose of the right to personal appearance at a hearing is to know the full extent of the factors that are being considered by the Review Board and to make representation that would influence the ultimate decision. Personal presence at the end of a hearing where a decision has already been made completely defeats the purpose of the legal requirement.

Section 21(2)(a) of the CCR Regulations also requires that the prisoner "is given, at least three working days before the hearing, notice in writing of the hearing and the information that the Board will be considering at the hearing." This requirement is integrally related to the prisonerís opportunity to be personally present at the hearing and to make representations; obviously, if a prisoner does not know what the Board will be considering at the review, it is impossible to prepare adequately for the hearing. In none of the cases I observed at Matsqui was the prisoner given anything in writing prior to the five-day review other than the segregation notice required to be served within twenty-four hours of the initial segregation. This notice was extremely brief, typically consisting of one or two sentences. For example, the segregation notice given to Mr. Wright on August 23, 1993, stated:

You are being placed in segregation and will remain there pending an investigation into your behaviour in the living unit. Further, your case management team will be reviewing your program involvement and assess your progress in same. (Segregation Notice, Matsqui Institution, August 23, 1993)

In several cases, prisoners appeared at their five-day reviews without having received even the initial segregation notice. The requirement of three daysí written notice detailing the information to be considered by the Segregation Review Board was not met at any subsequent reviews. Notwithstanding the specific provisions in the CCR Regulations, the Matsqui Segregation Review Board continued to operate according to the customary law of the prison, in which information was shared with a prisoner only at the hearing itself. However, as explained, its delivery served no useful purpose in giving shape and content to the prisonerís representations so as to influence the Boardís decision.

Finally, segregation reviews at Matsqui were conducted without regard for the critical path of legal inquiry charted by the CCRA to justify segregation of a prisoner. There was no attempt to measure the specific activities or behaviour of the prisoner against one of the grounds set out in s. 31(3) of the CCRA. There was no determination on any reasonable alternatives to segregation. In those cases where a prisoner was retained in segregation for more than thirty days, there was no review of any written psychological or psychiatric opinion regarding the prisonerís capacity to remain in segregation, as required by s. 7(e) of Commissionerís Directive 590. Although for prisoners who remained in segregation beyond sixty days there would be a Review Board discussion of possible alternatives -- which almost always involved a transfer to another institution -- I never once observed the Board either developing or reviewing "a plan, addressing in detail the schedule of activities for the inmate," as required by s. 7(d) of the Commissioner's Directives. Rather, the reviews were relatively shapeless discussions of individual cases, the precise agenda of which depended on questions raised by individual Board members. Any expectation I had had that the segregation review process at Matsqui would be conducted within the framework of the CCRA, Regulations and Directives was confounded during my initial observations.

The best evidence that the legal framework had not become part of the operational reality of decision-making at Matsqui was the execution of "Operation Big Scoop." I have described how that operation was planned and implemented, and how at no time was any reference made to or reliance placed upon the provisions in the CCRA. As I have observed, in my judgement the operation was carried out in violation of both the spirit and the letter of the law.

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Segregation Cells, Matsqui Institution