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July 17: The Five-day Reviews -- Clearing the Legal Hurdles

On July 17, Mike Csoka conducted fourteen five-day reviews, all involving prisoners allegedly involved in either the incident in the exercise yard or the smash-up in A unit -- by far the largest number of such reviews done at one sitting during my five years of research at Kent. This correctional tour de force was a fitting match for the thirty-eight minor disciplinary charges Mr. Csoka had adjudicated in one afternoon four years earlier at Matsqui Institution. He completed the review of these fourteen cases in about an hour and a half. A number of prisoners were extremely angry and still pumped up from the previous Mondayís smash-up. Although there were security officers posted outside the room, Mr. Csoka conducted the review without reinforcements; he kept his cool even when subjected to considerable verbal abuse. His handling of the cases portrayed a correctional practitioner with confidence in his position and authority, ready to do a tough job under difficult circumstances. In a correctional context, he was the proverbial man for all seasons.

But how well did this second marathon measure up to the standards of the law and due process? Each review followed the same format under Mr. Csokaís chairmanship. He began by asking the prisoner whether he had received seventy-two hoursí written notice of the review and had agreed to come to the review. Each one had. In several cases, he prefaced these questions with the comment: "But first there is some legal stuff to go over." This was revealing, since it implied that the legal requirements were procedural hurdles which, having been cleared, allowed the real business -- the exercise of administrative discretion unconstrained by law -- to get underway.

Having cleared these legal hurdles, Mr. Csoka informed each prisoner that he would remain in segregation pending an investigation, in some cases of his involvement with the incident in the yard and in the others with the destruction of property in A unit. This signalled to prisoners that the determination for continued segregation had already been made; whatever they said would make no difference to this outcome. Mr. Csoka was up front about this, a quality much respected by prisoners. However, the legal function of the five-day review is to consider whether there are continuing grounds for segregation, not simply to announce this determination to the prisoner.

The following exchange from the review of prisoner Glen Rosenthal (taken from my notes) captures the nature of Mr. Csokaís review process:

MC : Mr. Rosenthal, we are going to maintain you in segregation pending the investigation of your involvement in the yard.

GR : I would like to request specific information about what has been alleged against me regarding my involvement in the yard.

MC : I canít tell you that. Itís up to the IPSOs. Theyíre the ones doing the investigation with the RCMP.

GR : So Iím in seg for allegations but you canít tell me what they are?

MC : Thatís right.

Mr. Rosenthal and several other prisoners complained bitterly about the conditions in segregation: specifically, they had been given no change of clothes. Prisoners brought down after the smash-up on Monday were still in the coveralls they had been given when they were taken out of their cells. They had no underwear, and their cells were bare except for bedding. Mr. Rosenthal asked Mr. Csoka why Kent was not complying with the CCRA provisions requiring that a prisoner admitted into segregation be given the same rights, privileges, and conditions of confinement as the general inmate population. Mr. Csokaís response was that prisoners receive their effects only after the five-day review. Mr. Rosenthal asked, "Where in the CCRA does it say that prisoners in segregation are not entitled to all their rights in the first five days?" Mr. Csoka said the recent audit done as part of the Task Force on Administrative Segregation had approved the practice of not giving prisoners their effects until after the five-day review; however, Mr. Rosenthal still wanted to know where in the law this was authorized. The segregation staff had told him and other prisoners that they would get their clothes and tobacco only when they started to behave themselves. Mr. Rosenthal questioned, "Where does it say in the CCRA that you can use our rights as behaviour modification?" (In her report the previous year, Madam Justice Arbour had given her unequivocal answer that this was not legally permissible.)

Mr. Rosenthal inquired whether the five-day review was being tape-recorded. When told it was not, he asked how the review was documented. Mr. Csoka said the clerk was keeping a record. Mr. Rosenthal questioned this: "She hasnít written down anything that I have said, so how is she keeping a record?" Mr. Csoka explained that the clerk wrote down only the reasons for segregation. Mr. Rosenthal's characterization of this was: "So none of what went on here is on record. Itís like it never happened."

Two of the reviews conducted by Mr. Csoka on July 17 had a compelling quality. Mr. Forget had seen his friend Christian Grenier dying in the yard and had himself been hit in the head with a baseball bat. Mr. Csoka showed compassion and empathy, asking Mr. Forget how he was coping with his friendís death and commenting that it must be very hard on him. Mr. Forget explained that the Valium which had come into the institution was supposed to reach Mr. Grenier. When it did not, Mr. Grenier and his friends were prepared to write it off. But on Thursday, while Mr. Forget and Mr. Grenier were walking around the yard, they had been approached by other prisoners and confronted with threats. Mr. Forget had taken a defensive position, which he now regretted because his friend was dead. Mr. Csoka told him he would be kept in segregation pending the outcome of the investigation; the institution was concerned that if Mr. Forget went back to the population there was a risk of further assaults.

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Mike Csoka