Population Management -- "The Wedge of Intrusion"

In the course of the Task Force visits to federal institutions, it became apparent that the bright line distinction drawn in the CCRA between general population and segregation failed to recognise that there were conditions of confinement prevailing in some institutions, which while they were not characterised as administrative segregation, imposed greater restrictions upon the rights and liberties of prisoners than those experienced in general population. For example, in several institutions there were units established for protective custody or special needs prisoners, where prisoners had open association with each other and thus greater freedom than that given to prisoners in units officially designated as administrative segregation; yet their access to programs and privileges was more restrictive than that existing in the general population of the prison. Another example arose in the case of those women who were designated maximum security and who, in the aftermath of the escapes from Edmonton Institution, had been transferred and were incarcerated in the special women’s units within male institutions (the so-called "co-located" units). The women in these units were separated both from the male prisoners in the institution but also from all other female prisoners confined in the regional institutions. There numbers were very small. For example, at the time of the Task Force visit, there were only five women in Saskatchewan Penitentiary who were confined on two separate ranges with the result that these women experienced very little by way of social or psychological stimulation compared to prisoners in general population and the regional facilities. While legally they were not in administrative segregation, in reality they experienced very limited association with other prisoners.

The bright line division between "general population" and "segregation" is physically reflected in the fact that prisoners placed in administrative segregation are confined in a separate unit within the prison which has its own official and unofficial name, whether it be the "Special Correctional Unit," the "Segregation Unit," the "hole," the "digger" or the "box." When prisoners are confined in other parts of the prison, even though under conditions which come close to those prevailing in the segregation unit, because they are not in the segregation unit, they are deemed to be in general population. Therefore none of the legal prerequisites and protections applied to segregation are deemed to be relevant.

The Task Force in addressing these issues suggested that the bright line reflected in the CCRA and in operational reality did not sufficiently incorporate the principles reflected in s. 7 of the Charter of Rights and Freedoms and the administrative law duty to act fairly. These principles require that where the Correctional Service of Canada intrudes upon the liberty interests of prisoners, there be in place procedures and protections to ensure that there is a degree of fairness commensurate with the degree of intrusion. The detailed provisions of the CCRA and the Regulations regarding segregation and transfers reflect these principles. However, the CCRA does not contain similar provisions governing placement in special needs units, co-located units or the Special Handling Units. In its report, the Task Force employed a figurative device -- "the wedge of intrusion" (one of the many insightful contributions of Todd Sloan, Counsel to the Correctional Investigator), to identify twelve "sub-populations" that characterise the current range of situations that impact on a prisoner’s residual rights, freedoms and privileges. In some cases, they are and can be used as alternatives to administrative segregation. In other cases, they may represent de facto segregation units which are as intrusive as traditional segregation units. What the Task Force recommended was that the Service should undertake "a comprehensive formal review of population management alternatives aimed at providing direction to staff members and managers on the legal grounds for their use and the degree of review required to protect the inmates residual rights and freedoms under the law" (Task Force Report at 44). This review would describe the legitimate grounds that can be used for placing a prisoner in to one of these "sub-populations"; the legal processes that define the extent to which rights, freedoms and privileges can be restricted, including association; and the degree of review required to facilitate the return of the prisoner to a less restrictive correctional environment. (The Task Force’s full analysis and recommendations are set out in its Report at 42-49.)

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