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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 Forceís 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 Arbourís report, the Task Force on Segregationís 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 prisonerís 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 Serviceís 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 Investigatorís annual reports chastized the Service for its lack of compliance with the Commissionerís 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 Investigatorís 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 commissionerís assurances are the changes made by the CSC following the Task Force on Segregationís 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 Forceís first visit to test the commissionerís confident assertion.

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