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
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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