Segregation Review at Kent -- The Law and Operational Reality

Segregation cast an even longer shadow at Kent Institution during 1993-96 because of the exceptionally large numbers of prisoners who were segregated. During these years Kent had an average population of 280 prisoners. The division of the population into general population (GP) and protective custody (PC) was reflected during these years by a division of the segregation unit along the same lines, with J unit containing the GP prisoners and K unit the PC prisoners. The two units, while linked by a common control bubble, had their own separate exercise yards, common rooms and interview rooms. Because of the pressures of overcrowding, most of the cells in K unit and many of those in J unit were double-bunked. There were months in which segregated prisoners represented almost 30 per cent of the total population, the highest percentage in the country. Segregation therefore came close to being the normal condition of imprisonment for a significant part of the population. Normalcy in this context involved confinement in an often double-bunked cell for twenty-three hours a day, with an hour out for exercise and a few more minutes for a shower, where life was shared in all its intimacies with another person and privacy reduced to the thickness of a curtain around a toilet standing only a few feet from your bed. Although the presence of televisions and Walkman radios suggested a degree of progress from the sterility of the Penthouse in the B.C. Penitentiary, for many prisoners long-term segregation under double-bunked conditions was seen as a regression. Certainly, judging by the length of time prisoners spent in segregation, it was difficult to see much progress from the days of the Penthouse. During 1993-95, one of the plaintiffs in the McCann case, who had spent 682 days in segregation at the B.C. Penitentiary in the early 1970s, came to spend almost 1,000 days in segregation in Kent Institution.

When I began my observations at Kent, it quickly became apparent that the segregation review process there was carried out differently than at Matsqui. At Kent, the Board maintained the five-day and thirty-day sequence of reviews set out in the legislation. There was also a separate designation for a sixty-day review, which reflected the requirement in the CCR Regulations that there be a regional review of any prisoner kept in segregation for sixty days. There were far more prisoners at Kent than at Matsqui who fell into that category, and this was recognized by the attendance at Kent’s sixty-day reviews of a representative from Regional Headquarters.

The segregation review processes at Kent and Matsqui had several elements in common. Neither institution referred to the legislative criteria for segregation, nor was a conscious critical line of inquiry directed to whether the evidence or information available to the Board established legal justification for segregation or whether there were reasonable alternatives to segregation. In addition, there was no compliance with the legislative requirement that a prisoner receive, at least three working days prior to each review, a written copy of any documentation to be used. In no case I observed between 1993 and 1996 was a prisoner given documentation over and above the typically minimal segregation notice received when he was first placed in segregation or the notices provided following the thirty- or sixty-day reviews. Any information given to prisoners regarding the reasons for their segregation was conveyed at the segregation review and was given orally. The only exceptions to this were in cases of men being considered for involuntary transfer; they received a progress summary detailing the grounds for the recommended transfer.

The official record for segregated prisoners at Kent consisted of segregation review notices prepared following every review and placed on the prisoner’s file, but the operational filing system was a set of index cards maintained by the unit manager for segregation. Every segregated prisoner had such a card, and on it were handwritten notations indicating the circumstances leading to segregation together with updates after each review. The cards were kept in a small recipe box as an accessible and transportable information base for segregation reviews.

As discussed, s. 31(3) of the CCRA sets out the lawful grounds for segregation. A further extra-legal ground was often used at Kent to justify continued segregation. A great number of prisoners received notices stating that they been approved for release to general population "pending available bed space." This was a result of the expansion of the federal prison population during those years and the transition of double-bunking from an emergency measure to an accepted long-term feature of correctional operations. This situation had cumulative effects at Kent. The pressures of overcrowding in lower security institutions resulted in more prisoners being deemed unmanageable and therefore subject to involuntary transfer to maximum-security prisons. The stepping up of the war against drugs and of "zero tolerance" policies also increased the number of prisoners facing involuntary transfers to Kent, for reasons which at other times would not have been deemed sufficient to justify them. With GP and PC units full, and a ceiling placed on the number of cells that could be double-bunked, prisoners coming into Kent found themselves placed in the segregation unit until a cell opened up in the regular units. Kent prisoners in administrative or punitive segregation remained there until space became available in the units, even though the original grounds for placing them in segregation no longer existed or they had served their sentences. The segregation notice given to one prisoner read: "Your punitive time is expired. The Board has no reason to maintain your segregation at this time and will recommend your release pending bed space in general population." Segregated prisoners were assigned a number, indicating their priority for release, on a first-in, first-out basis. Depending on the number of prisoners in segregation at any one time, the duration of the period a prisoner spent in segregation for no reason grounded in law varied from a few days to two months. As I have described in Sector 3, Chapter 3, "The Disciplinary Process at Kent," there were a significant number of cases in which the maximum punitive sentence of 30 days stretched into an actual sentence of 90 days, resulting in prisoners being released straight from segregation to the street on their statutory release or warrant expiry dates.

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