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August 11-12: the CSC and the CYA Principle

The Segregation Review Board met on August 11 to conduct a number of reviews, including the cases of Mr. McKenna and Mr. Forget. The Board recommended that both prisoners be released from segregation. The warden, back after a weekís vacation, accepted the recommendation in relation to Mr. McKenna, and he was released from segregation that day. In the case of Mr. Forget, the warden asked the IPSO to prepare a risk/threat assessment prior to making her final decision.

The next day, I asked Warden Marshall for her assessment of the situation at Kent in the aftermath of the Grenier murder. She was acutely aware of the critical nature of her decision on Claude Forgetís release from segregation. Many prisoners had told the administration that Mr. Forgetís release would not pose a risk to him and that it could help to resolve some outstanding problems in the population, but there was other information to the effect that "blood will flow if Forget is released." That was the reason she had asked the IPSO to prepare a statement of risk. Gary Allenís death two years earlier, within hours of his release from segregation, was very much on her mind.

It is not difficult to understand the wardenís response. She is accountable to the Commissioner of Corrections for her judgements. There was enormous pressure on her to ensure that decisions made following the incidents of "Deadly July" did not precipitate further incidents compromising safety or security. If Brenda Marshall approved the release of Claude Forget and there was further bloodshed, she would wear it. This was the inescapable reality that Warden Marshall faced: like any other warden, in making decisions she had to take her job into account. In addition to the legal criteria for segregation, there is, therefore, an important criterion that remains unwritten: "The prisonerís release to the population shall not jeopardize the security of my position as warden." In most hierarchical structures of management, including the Correctional Service of Canada, this is known as the CYA (Cover Your Ass) principle.

It is precisely because of the immense responsibility and accountability that rests on a wardenís shoulders that decisions which have a major impact on a prisonerís rights and liberties should be made by an independent adjudicator, someone who can exercise the best possible judgement in light of the available evidence, weighing the competing risks involved, without the fear that his or her job is on the line.

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