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The Task Force Recommendations: Enhanced Internal Review or Independent Adjudication?

One of the Task Force’s mandates was to review the recommendations of Madam Justice Arbour for judicial supervision or independent adjudication of segregation decisions and to make recommendations for improving the effectiveness of the segregation review process. In our initial meetings, a clear division of opinion on the issue of independent adjudication emerged between members from within the ranks of the Service and those drawn from outside. The CSC members argued vigorously that the necessary reforms could be achieved through "enhancing" the existing internal model of administrative decision-making, in which the Segregation Review Board, chaired by institutional managers, made recommendations and the warden had the ultimate authority.

The CSC members’ argument had several strands. Under existing law, the warden was the person held accountable for the security of the institution and the safety of staff and prisoners. The decision to segregate a prisoner involved critical issues of safety and security. The staff’s understanding of the dynamics of an institution and the personalities of the prisoners was integral to making the right decision in a situation where the wrong decision could be fatal; no outsider, however well-educated in the law, could provide an adequate substitute for correctional experience and understanding. Furthermore, transferring decision-making for segregation from institutional managers to outside adjudicators would have a corrosive effect on institutional morale and add to existing staff dissatisfaction with the independent adjudication of disciplinary hearings. The final strand to the argument was that the Service, having been made aware of the extent of its non-compliance with the law and the deficiency of its existing procedures, should be given the opportunity to put its own shop in order.

Task Force members from outside the Service set out the competing arguments. There was first the compelling historical record, which demonstrated that over the twenty-year period since the McCann decision, the Service’s efforts to reform itself had consistently failed. The Arbour Report documented the latest chapter in that history. Second, principles of fairness require that the legislative criteria for a decision that affects the institutional liberty of a prisoner and consigns him to "a prison within a prison" be applied free from the pressure of institutional bias, with an objective weighing of the competing interests of prisoners and prison administrators. Principles of fairness had underpinned the introduction of independent adjudication for serious disciplinary offences and were no less compelling in the case of administrative segregation. In a working paper I prepared for the Task Force, I referred to some of the case studies documented in this book to illustrate how, under prevailing operational reality, justice was mediated by institutional politics and convenience rather than by the law.

The Task Force spent many hours debating the relative merits of an enhanced internal segregation review process and a system of independent adjudication. Members from within the Service developed a model for enhancing the internal review process; I developed the ideas for independent adjudication first put forth in my Model Segregation Code, revising the model to recognize the important distinctions between involuntary and voluntary cases. From our debate emerged a consensus that the Task Force recommend that the Service reform the segregation process along parallel paths, one path being the enhancement of the internal review process and the other an experiment with independent adjudication. As Dan Kane noted in his introduction to our report, "The fact that consensus was achieved out of views that were so disparate, yet passionately held, testifies to the value of open and honest discussion" ( Task Force Report at 2).

The enhanced internal model for segregation review recommended by the Task Force had eight elements, including a legal education initiative, improved procedures for segregation review hearings, the development of better alternatives to segregation, and the establishment of regional Segregation Review Boards. The legal education initiative came both from recommendations in the Arbour Report and from feedback received by the Task Force that correctional staff and managers received insufficient training in administrative law and the principles enshrined in the Charter of Rights and Freedoms. In the Task Force’s view, and based upon its interviews with Native Brotherhoods across the country, this legal education needed to include training on the distinct constitutional and legal rights of Aboriginal people and, more specifically, on their access to spiritual and cultural possessions and ceremonies and to the spiritual and cultural support provided by Elders and Native Liaison officers. The most critical part of the enhanced segregation model was directed to improving the conduct of segregation review hearings, and the CSC’s Legal Services developed a twelve-step procedural guide for these hearings which was appended to the report of the Task Force. The Task Force also recommended that the chairperson of the Segregation Review Board undergo specialized training through a formal certification program such as those adopted in some jurisdictions in the United States.

The external members of the Task Force supported the development of these initiatives, which would improve the Service’s ability to make fair and effective segregation decisions. The enhancement of this internal ability through legal education and certification in the conduct of hearings could serve as a model in other decision-making areas that affected the rights and liberties of prisoners. But the limitations of these initiatives were clear: they assumed that training in the substantive and procedural requirements of the law would be enough to ensure fairness. However, if fairness requires an objective balancing of competing interests -- those of prison administrators to manage a safe and secure institution and those of prisoners not to suffer the loss of their institutional liberty except in strict accordance with the criteria and procedures set out in the law -- how could fairness be achieved, and be seen to be achieved, where decisions were made by the correctional administrators themselves? Even assuming the CSC could demonstrate through training and education that it had developed a corporate culture which respected the Rule of Law, the issue of bias would continue to cast a long shadow over the substantive justice of the process.

The model of independent adjudication I developed for the Task Force was designed to build upon and be integrated into the CSC initiatives. In voluntary cases, the initial decision to segregate would remain with the warden. The five-day review would be chaired by the warden or deputy warden, which would elevate the importance of the segregation decision. The thirty-day review would be chaired by an independent adjudicator, and the institution would be responsible for developing and presenting at the hearing a plan to reintegrate the prisoner. The adjudicator’s role would be to ensure that a plan had been developed and that all reasonable alternatives to segregation had been explored. Where the plan for reintegration involved a negotiated return to the population of the parent institution, requiring the assistance of the Inmate Committee, the Native Brotherhood, or an Elder, the hearing should include these parties. If the plan involved a transfer to another institution, the adjudicator would ensure that the necessary progress summaries were prepared and that transfer time frames were complied with. If the transfer was rejected, the adjudicator could order the convening of a regional segregation/transfer board chaired by the deputy commissioner of the region or a delegate with the legal authority to order a transfer.

In involuntary cases, the warden would also retain the initial authority to segregate the prisoner. However, here the independent adjudicator would conduct the five-day review as well as any subsequent thirty-day reviews. In an involuntary case, the burden is on the institution to demonstrate that there are grounds justifying segregation and that there are no reasonable alternatives. Because this position is likely to be contested, independent adjudication is required early in the process. Furthermore, where the institution’s case for segregation is based on an ongoing investigation, the independent adjudicator could establish a reasonable time frame for the completion of the investigation. At the thirty-day review, the onus would be on the institution to demonstrate a continuing need for segregation and to present a plan for reintegration. Subsequent reviews would monitor the implementation of the plan.

An integral part of the experiment the Task Force proposed would be to determine how the best blend between an enhanced segregation review process and independent adjudication could be achieved. In identifying the contours of the experiment, the Task Force considered a number of issues, including the authority of the adjudicator.

In both my original Model Segregation Code and the model I developed for the Task Force, as well as in Madam Justice Arbour’s model, the independent adjudicator has the final legal authority. However, to enable the experiment with independent adjudication to be implemented immediately, indeed fast-tracked, the Task Force agreed it would have to be done within the framework of the existing law, under which the warden retains ultimate legal authority to make segregation decisions. The results of the experiment would thus be relevant in determining whether it was necessary to change the law so that the adjudicator was given the power to make decisions rather than just recommendations. The Task Force recommended that the experiment with independent adjudication take place in four institutions, two of which would have independent adjudicators and two of which, for comparative purposes, would not. It was recommended that the enhanced internal review process be initiated in all institutions.

It was our considered view that the Task Force’s proposed model of reform, encompassing an enhanced internal review process and an experiment with independent adjudication within the existing framework of the law, would contribute to the development of a fair and effective segregation process. In keeping with the clarion call of the House of Commons Sub-Committee on the Penitentiary System in 1977 and the report of Madam Justice Arbour in 1996, it would also encourage the development of a correctional culture and operational practice that respected the Rule of Law.

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