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The Equation for Reform
On June 15, 1998, Todd Sloan and I wrote to Commissioner Ingstrup. We
reviewed the history of the Task Force recommendation on independent adjudication
and expressed our profound disappointment that he had rejected it. We
gave appropriate credit to the initiatives the Service had introduced
as a result of the Task Force’s work but argued that they were not enough
on their own.
The development of a segregation review handbook
in conjunction with legal training sessions for managers and supervisors
working in segregation units; the improvements to the OMS system designed
to improve the written sharing of information with prisoners; the initiatives
to develop better alternatives to segregation: these are all important
steps in reducing the use of segregation and ensuring that when used it
is done fairly. However, they are only one half of the equation. The other
half is clearly set out in Madam Justice Arbour’s report, the Task Force
on Segregation’s recommendations and their most recent endorsement by
the Working Group on Human Rights. Your resistance to the implementation
of this recommendation for independent adjudication, in the face of this
trilogy of a Royal Commission and your own Task Force and Working Group,
will be seen by many of your critics as a symbol of operational reality
failing to conform to the principles of openness, integrity and accountability.
As Madam Justice Arbour observed, placing a prisoner in segregation is
the most intrusive decision the Service can make affecting a prisoner’s
liberty. The legitimacy of that decision in terms of fairness and conformity
with the law is in many ways a litmus test for the legitimacy of the correctional
system. Your decision not to implement the experiment with independent
adjudication in segregation cases should also be judged as a litmus test
of the Service’s commitment to changing its corporate culture to one which
not only professes but demonstrates its respect for the Rule of Law. (Letter
from Michael Jackson and Todd Sloan to Ole Ingstrup, Commissioner of Corrections,
June 15, 1998)
The Commissioner replied to our letter on July 15, 1998. He stated:
After carefully assessing the deliberations of the
Task Force and considering the changes already implemented, the EXCOM
[Executive Committee of CSC] has decided that instead of proceeding with
the limited experiment with independent adjudication as recommended by
the Task Force, the most effective way of ensuring legal compliance is
to appoint a dedicated senior employee in each region to ensure compliance
with legal, policy and procedural requirements and provide effective and
timely solutions to release and reintegration of segregated offenders
. . .
It is important to acknowledge that the recommendations
of the Task Force have resulted in numerous other significant changes
in how the Service manages administrative segregation. These initiatives,
complemented by the strengthening of regional oversight, go a long way
to ensuring that the Service is compliant with its legal obligations .
. .
The Service is confident that these changes will
ensure that segregated offenders are treated in a fair and forthright
manner. As you are aware, in parallel to an enhanced segregation review
process, segregated offenders have access to lawyers, judicial review,
members of Parliament as well as the Correctional Investigator. The initiatives
noted above, paired with existing external remedies, will assure the Canadian
public that the Service is managing administrative segregation in compliance
with the law. (Letter from Ole Instrup, Commissioner of Corrections, to
Michael Jackson, July 15, 1998)
The confidence the commissioner places in the
Correctional Service of Canada to put its own house in order can
be assessed from two perspectives. The first is historical. Twenty years
earlier, the House of Commons Sub-Committee on the Penitentiary System,
in its 1977 report, had accepted those same assurances by not recommending
that independent adjudication be used for administrative segregation until
the Service had had an opportunity to implement Segregation Review Boards,
which would conduct regular reviews of segregated prisoners. In the mid-1980s,
several of the Correctional Investigator’s annual reports chastized the
Service for its lack of compliance with the Commissioner’s Directives
in the operation of segregation units and particularly condemned the practice
of double-bunking in segregation. The Correctional Investigator called
for a comprehensive review of the operation of segregation. The reply
from the Service, as recorded by the Correctional Investigator in his
1984-85 report, was this:
[W]e were advised that the last six months had been
spent drafting explicit policies and guidelines regarding administrative
segregation which included minimum standards for showering, exercise,
visits, etc. As well, to ensure compliance, that a "Manager, Administrative
Segregation" had been appointed at the National Headquarters and a Regional
Co-ordinator had been appointed in each Region to assist in the implementation
of the new policies and procedures. Also, that workshops had been held
to familiarize staff and that future monitoring would address the type
of problem outlined in the [Correctional Investigator’s report]. ( Annual
Report of the Correctional Investigator, 1984-85 [Ottawa: Supply
and Services Canada, 1985] at 19-20)
A decade after the 1985 action plan of new policies, national and regional
managers to monitor segregation operations, and better staff training,
the events at the Prison for Women shattered any pretence that real reform
had taken place.
The other perspective from which to assess the commissioner’s assurances
are the changes made by the CSC following the Task Force on Segregation’s
report. According to the commissioner, the objectives of fairness, effectiveness,
and compliance with the law can all be achieved without independent adjudication
at any stage of the segregation process. In the next chapter, I trace
the developments in the administration of segregation at Kent Institution
in the two years after the Task Force’s first visit to test the commissioner’s
confident assertion. Page 1 of 1
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