The umbrella of legality under which Kent Institution segregated Mr. Martineau in December 1994 would have provided scant protection had Mr. Martineau’s segregation continued and a legal challenge been mounted in the form of a Martineau (No. 3). Both the process and the substance of Mr. Martineau’s segregation were deeply flawed. In terms of process, he was not given written notice prior to his five-day review of the information that the Segregation Review Board would be considering; indeed, at no time during his segregation, until December 29, was he personally told anything beyond the fact that there was an ongoing investigation. In terms of substance, the legal basis invoked by the institution for Mr. Martineau’s segregation was s. 31(3)(b); this required the institutional head to believe on reasonable grounds that Mr. Martineau’s continued presence in the general population would interfere with an investigation. The basis for those reasonable grounds, as explained by Deputy Warden Sexsmith on December 29, thirteen days after Mr. Martineau had first been segregated, was received information that Mr. Martineau had arranged for the transmission of Mr. Flamond’s carving knife through a prisoner intermediary to the prisoner who ultimately carried out the attack, coupled with Mr. Martineau’s "conspicuous absence" from the unit when the attack took place. But in an environment where virtually every prisoner has access to a knife, for either defensive or offensive purposes, how reasonable is it that Mr. Martineau would construct a long chain of involvement to pass a knife along to the perpetrator of the offence? The issue of reasonableness must also be sifted in the context of the close personal relationship between Mr. Martineau and Mr. Flamond. As to Mr. Martineau’s "conspicuous absence" from the unit at the time of the stabbing, how reasonable was the conclusion that this provided grounds to implicate him, given that he was in the prison chapel for the purposes of participating in a scheduled Brotherhood meeting? In any event, whatever reasonable grounds might have existed initially for believing that Mr. Martineau was implicated in the attack, or that his presence in the population would interfere with the investigation, had evaporated by December 29, on the deputy warden’s own admission. The five-day delay in Mr. Martineau’s release was to satisfy the dynamics of institutional politics; clearly, leaving a prisoner in segregation to avoid ruffling the feathers of unit managers is not authorized by the CCRA.

When the veils of legality are stripped away, the underlying rationale for Mr. Martineau’s segregation becomes more apparent. As one of the unit managers candidly conceded, Mr. Martineau’s power base in the institution was becoming a problem. He had openly called into question the unit managers’ interpretations of CCRA provisions regarding Aboriginal prisoners and had held them to account in front of national and regional representatives. Furthermore, he had successfully invoked the assistance of the warden and the deputy warden to bring to fruition the Brotherhood’s Christmas give-away plans. Placing Mr. Martineau in segregation for Christmas and New Year's Day, thereby precluding his participation in the Christmas social and all but eclipsing his long-awaited visit with his wife, was both a symbolic and a real message about who was in charge at Kent Institution. That message had little to do with the provisions of the CCRA or the pronouncements of the Supreme Court of Canada on the duty to act fairly.

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