location: publications / books / Justice Behind the Walls / Sector 4 / Chapter 4 The Task Force on Administrative Segregation 1996-7 / The CSCís Response to the Task Force on Segregation -- A Study in Resistance

The second basis for the critique of the Task Force recommendation is "the key issue of accountability -- accountability of wardens, of the Commissioner, and ultimately of the Solicitor General of Canada." The possibility that the authority to make decisions regarding segregation would be removed from the warden to an independent adjudicator is seen by the options paper as being based upon an unhelpful analogy with the independent chairperson of the disciplinary board:

Disciplinary charges are laid based on a particular event and supported by shared testimony and evidence. For charges not found proven by the ICP the only unpleasant consequence is basically loss of face for CSC staff. Segregation, on the other hand, is based on fear or threat of a future event, concern that is founded on rumour, formal evidence, unattributed information received, observed behaviours, and the overall recent pattern of institutional comportment. The consequences of underestimating the threat posed, or over-ambitiously pushing for re-integration into normal association could be calamitous for the offender(s), or indeed for CSC staff caught up in incidents. Normal rules of evidence are of little help in such situations. The report is silent on this matter. Unfortunately, the Correctional Service of Canada cannot be. (Options Paper at 5-6)

This comparative analysis, however, fails to do justice to the analysis undertaken by the Task Force. In cases of involuntary segregation, there are often, and indeed usually, factual determinations to be made regarding the prisonerís asserted participation in past events that grounds the need for segregation based upon a threat to safety or security. My previous case studies demonstrate this in spades. It is often the case that the allegations made against the prisoner are founded on a combination of "rumour, formal evidence, unattributed information received, observed behaviours, and the overall recent pattern of institutional comportment." The ultimate legal question, however, is whether there are reasonable grounds, based upon the legislative criteria, to justify segregation. If the principal bases for the allegations are a combination of "rumour" and "unattributed information received," that will not be sufficient to form reasonable grounds to justify segregation. It is precisely because many CSC staff fail to understand that rumour and unattributed information do not provide a foundation for interfering with a prisonerís institutional liberty, that has compelled the CSCís critics to argue that independent adjudication is necessary in segregation decisions. Such an independent adjudicator can give contextual shape to what are reasonable grounds within the institutional framework, having regard to the standards that have been laid down by the courts in other analogous situations, where reasonable grounds are assessed on the basis of whether the information is compelling, credible or corroborated. As the courts have made clear, these are not necessarily cumulative tests, but they do raise a threshold which would prevent unreasonable arrests or searches, in the same way as they would prevent unjustifiable segregation, based only upon rumour and unattributed information.

The final ground given in the option paper for criticising a model of independent adjudication that would give the adjudicator decision making authority is that "a warden and Commissioner could not be held to account for what may occur in an institution if the warden had wanted a particular preventative segregation action, but an independent third party had declared it unjustified and therefore not acceptable... It is possible to speculate that Parliament might consider its authority somewhat eroded if ministers argued that independent adjudicators were more responsible than themselves or their officials for a particular event or set of events" (Options Paper at 6).

It is difficult to follow the logic of this argument. Giving an independent adjudicator authority to make segregation decisions requires a change to the CCRA, which self-evidently, only Parliament can do. Having done so, presumably on the basis that such a change is necessary in the interests of fairness and to ensure compliance with the law, Parliament could hardly complain that its authority was "somewhat eroded" if independent adjudicators proceeded to exercise the authority which Parliament had unequivocally given to them.

Based upon such faulty logic and a failure to comprehend the full scope of the Task Forceís analysis and recommendations, the options paper proceeds to argue that "we must look for options to this proposed model [of independent adjudication], that while not perhaps as pure as the original concept might require, none the less goes far enough to demonstrate credibly that the CSC abides by the law, principles of fairness and the need to respect the rights of offenders in the matter of segregation. They must also leave the whole chain of accountability clear and unbroken." (Options Paper at 6-7). Several such options are briefly described. One is to have a community member sit on the Segregation Review Board. In the event of a serious disagreement between that member and the institutional members, the matter could be brought to the attention of the Deputy Commissioners or the commissioner. The second option would be to build upon another model under development within the CSC, that of an internal Inspector General which would evolve out of the current role of Assistant Commissioner, Performance Assurance. It is described this way:

The role would be to report on corporate operational performance, manner and practices, measure quality and effectiveness, and investigate any event or pattern of activity that seems worthy of the attention of either the commissioner or the incumbent Inspector General. In essence, the role would be to inspect anything the commissioner agrees or requires to be reviewed. An on-going role for the Inspector General in oversight of the segregation process can be easily foreseen. Regional counterparts could be tasked by the Inspector General to conduct on-going reviews of segregation processes and outcomes, instances of long term segregation could be monitored and individual cases investigated by the Inspector General. Furthermore, routine sampling of segregation case files could be done as a formal program of quality assurance from this position. (Options Paper at 7-8)

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