location: publications / books / Justice Behind the Walls / Sector 4 / Chapter 2 Administrative Segregation at Matsqui and Kent,1993-6: The Persistence of Customary Law / Donnie Oag -- Twenty Years after McCann

Legislative provisions should have prevented Mr. Oag’s long-term segregation after his return from Mountain Institution. Section 4(d) of the CCRA provides that "the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders." This principle is reflected in s. 28, which sets out criteria for the selection of the penitentiary a prisoner is to be confined in and provides that "the Service shall take all reasonable steps to ensure that the penitentiary in which the person is confined is one that provides the least restrictive environment for that person." According to the face sheet of Mr. Oag’s "Review of Segregated Status," his security classification was "medium" on October 27, 1995. By no manner of interpretive leap can maintaining a prisoner in a segregation unit of a maximum-security prison be deemed "the least restrictive environment" for that person. Indeed, it is the most restrictive environment short of the Special Handling Unit, and arguably, given the conditions under which Mr. Oag was confined, even more restrictive than the SHU. Kent Institution did recommend that Mr. Oag be transferred to medium security, but those recommendations were not accepted by the wardens of William Head or Mountain Institution. The process of transfer to lower security is not seen by the Correctional Service of Canada, at the operational level, as exclusively or even primarily one of lawful obligation; instead, the process is deeply coloured by the politics and preferences of the correctional bureaucracy.

In addition to the general principle enshrined in s. 4 and the criteria for transfers set out in s. 28, there is a further provision of the CCRA dealing specifically with administrative segregation which is relevant to Mr. Oag’s case. His segregation was based upon s. 31(3)(c): that the institutional head believed on reasonable grounds "that the continued presence of the inmate in the general inmate population will jeopardize the inmate’s own safety." That ground for segregation, like the others, is subject to the further qualification that "the institutional head is satisfied that there is no reasonable alternative to administrative segregation." In Mr. Oag’s case, correctional authorities at Kent, including the institutional head, were satisfied that there was a reasonable alternative to segregation, in the form of a transfer to a medium-securityinstitution. Again, when the wardens of those institutions refused to accept the transfer, the politics and preferences of correctional administrators formed the unacceptable basis for concluding there was no reasonable alternative to segregation.

The provisions in the existing correctional legislation which should have prevented Mr. Oag’s extended segregation would seem to pinpoint lack of effective enforcement of the law as the real problem in this case. Had a legal challenge been mounted following his reclassification to "medium security," Mr. Oag’s rights might well have been respected. In my judgement, however, the issue of enforcement is linked to the larger issue of the sufficiency of the existing legal framework for segregation.

In the previous chapter I reviewed my recommendations for a Model Segregation Code. I observed that while some of those recommendations were incorporated into the CCRA, the most important features were either ignored or relegated to the Commissioner’s Directives, which lack the force of law. Thus, the requirement in the Model Segregation Code that a plan be developed for the reintegration of the prisoner does not appear in either the CCRA or the CCR Regulations. The provision that segregation be ended where evidence is presented that its continuation will cause the prisoner substantial psychological and physical harm is not adopted in either the CCRA or the CCR Regulations ; the Commissioner’s Directive requires only that at least once every thirty days there be a written psychological or psychiatric opinion respecting the prisoner’s capacity to remain in segregation. In practice, even that limited provision has been further truncated by the adoption of a checklist approach by institutional psychologists, often in the absence of any personal interview with the prisoner. But over and above these limitations of the existing legal and administrative framework, there are two vital elements of my Segregation Code which would have prevented the abuses evident in Mr. Oag’s case. The first element relates to the nature of the decision-maker in the segregation process; the second relates to the limitations on the duration of segregation.

Effective reform requires that the person making decisions regarding segregation to be independent from the correctional authorities administering the institution, along the lines of the Independent Chairperson of the Disciplinary Board. It is integral to a fair process that the decision-maker apply the legislative criteria free from the pressures of institutional bias, with an impartial weighing of the competing interests of prisoners and prison administrators. Mr. Oag’s continued segregation in the 1990s resulted from the deadlock between the wardens of Kent Institution, William Head Institution, and Mountain Institution on the appropriateness of transferring him to medium security, even though he was deemed a medium-securityprisoner. At many other points during Mr. Oag’s long segregation it was precisely such institutional pressures that perpetuated his segregation.

Under the procedures in the Model Segregation Code, there would have been a legal requirement to formulate a plan for presentation to the independent adjudicator early on in the segregation. Once that plan was approved by the independent adjudicator, subsequent reviews would be required to document the steps taken to implement it. Such a procedure would avoid situations in which plans are not implemented for reasons that, although understandable in the context of institutional life -- a change in assignment of case management officer or CO-II, staff members taking annual leave -- are simply not legitimate reasons for maintaining a prisoner in long-term segregation.

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