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The CSCís Response to the Task Force on Segregation -- A Study in Resistance

The report of the Task Force was filed with the Commissioner of Corrections at the end of March 1997. Task Force members expected that the report would then be made public; it was not, and the reason given was that it was necessary to brief the Solicitor General on the report prior to its public release. In late April, before this could be done, the federal government called an election, and Ottawa went into full election gear. The release of the Task Force Report was put off until after the election would be completed and a new cabinet sworn in. That new cabinet involved a shuffle, with the position of Solicitor General being assigned to Andy Scott. Task Force members were advised that the release of the report would have to await briefings of the new minister. Those briefings, which included a separate briefing on the governmentís response to the Arbour Report, came and went, but the Task Force Report was still not released. Although there was no formal communication between Commissioner Ingstrup and the Task Force regarding the reportís recommendations, external members received the clear message that there was serious resistance, tantamount to rejection, at the senior management level to the recommended experiment with independent adjudication.

The reasons for non-publication of the Report became increasingly clear to me and other external members of the Task Force and they raised much larger issues than the diplomatic protocol that the new minister be briefed prior to any public airing of the Report. We were informed that while certain of the recommendations of the Task Force were accepted by the commissioner and EXCOM, including development of an enhanced internal segregation review process and the establishment of an Aboriginal pilot project to develop alternatives to segregation, other key recommendations were met with scepticism; this was particularly the case with respect to the recommendation that there be an experiment with independent adjudication. The Commissioner himself viewed this recommendation as one which could undermine the accountability of the warden and asked one of his senior managers to prepare an "options paper," to review alternatives to independent adjudication which left the chain of accountability of the warden intact. Remarkably, this options paper was developed without any input from any member of the Task Force, including those the CSCís members at National Headquarters who had been most involved in the drafting of the Report, and who were therefore most familiar with the thinking that went into the Task Force recommendation on the experiment with independent adjudication. Although there was no formal written communication between the commissioner and members of the Task Force setting out which recommendations were being accepted, rejected or put over for further study, the message was clearly communicated in a variety of ways to the external members of the Task Force, that at the senior management level there was resistance, tantamount to rejection, of the recommendation that there be an experiment with independent adjudication.

During the months after the completion of the Task Force Report, as the external members became aware of the extent of the resistance to any experiment with independent adjudication, I found myself becoming increasingly sceptical about the extent of the CSCís commitment to changes in its corporate culture. After all, Madam Justice Arbour had unambiguously recommended either judicial supervision or independent adjudication of segregation decisions. She had not talked about experimentation, but full scale implementation of what she believed to be a necessary means to ensure compliance with the law. The Task Force proposed a more limited measure of experimenting with independent adjudication in conjunction with the CSCís own efforts to improve its internal procedures, in order to arrive at the best blend of internal and external review. Yet the CSC balked even at the idea of experimentation. It thus became clear that the real reason why the Report was not being published and distributed was because of the strong case it made for an experiment with independent adjudication that was not welcome at the highest levels of senior management.

Eventually, I obtained a copy of the "options paper." It was sent to me with a covering note that simply stated "Read it and weep." The paper criticised the Task Forceís recommendation that there be an experiment with independent adjudication on several grounds. The first of these related to the "legitimacy" of such an experiment:

With regard to adjudication of the segregation decision, the Task Force urges us to move quickly to experiment with the model of independent adjudication in order to evaluate its utility in improving fairness and in its operation impact. The first point that should be raised perhaps is the legitimacy of such an experiment. The Task Force proposes evaluation criteria: greater fairness, value added by the independent adjudicator over CSC staff independent review, greater protection of rights, and less use of segregation, among others. However, the integrity of any such evaluation must be debated, given the antecedents of the independent adjudicator model. As noted earlier, the concept seems predicated on avoiding or mitigating the inevitable and inescapable bias of CSC staff to which their own "vested interests," and "institutional convenience of politics"; as well as the fact that such pressures are so great as to undermine the ability of CSC staff to act fairly or to be seen as doing so. With such philosophical underpinnings, is the outcome of any evaluation of independent adjudication in any serious doubt? Is more than one outcome possible? It is difficult, if not impossible, to provide an empirical test of a value-based position; values are just that. It should be acknowledged candidly that there is little experiment or evaluation here. What is in fact under review is phased introduction. (Undated CSC document, Segregation Review -- Adjudication Option at 3-4)

There is indeed a body of opinion, to which both I and the other external members of the Task Force subscribed (as did the external stakeholders with whom the Task Force consulted) that independent adjudication is necessary to remove both the apprehension and prejudicial effect of institutional bias. We would argue that this does not require an experiment to prove; it is the foundation of our legal system, it underlies the cardinal importance of an independent judiciary and it receives its clearest expression in principles of administrative law. However, the CSC members of the Task Force argued that with better training in legal principle and process and through the enhanced internal segregation review, chairpersons of Segregation Review Boards, duly certified, would be able to recognise the potential prejudicial impact of bias and guard against it, at least sufficiently to refute any allegations of unfairness. One of the purposes of the experiment with independent adjudication, occurring concurrently with the enhancement of the internal review process, would be to evaluate empirically these arguments. It would appear that the writer of the options paper had already concluded that independent adjudication would clearly emerge as a better guardian of the important principle of unbiased decision making. That however is hardly a good reason for not engaging in the experiment, unless of course the verdict is one that the CSC would not be prepared to accept.

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