The umbrella of legality under which Kent Institution segregated Mr.
Martineau in December 1994 would have provided scant protection had Mr.
Martineauís segregation continued and a legal challenge been mounted in
the form of a Martineau (No. 3). Both the
process and the substance of Mr. Martineauís 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. Martineauís segregation was s. 31(3)(b); this required the institutional
head to believe on reasonable grounds that Mr. Martineauís 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. Flamondís carving knife through a prisoner intermediary to the
prisoner who ultimately carried out the attack, coupled with Mr. Martineauís
"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. Martineauís "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 wardenís own admission. The
five-day delay in Mr. Martineauís 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
When the veils of legality are stripped away, the underlying rationale
for Mr. Martineauís segregation becomes more apparent. As one of the unit
managers candidly conceded, Mr. Martineauís power base in the institution
was becoming a problem. He had openly called into question the unit managersí
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 Brotherhoodís 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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