It is worth examining how these thirty-day reviews could have been conducted with the benefit of independent adjudication. The administration would have been compelled to prepare a written review of all information it believed would support the case for continued segregation. That information would have been shared with prisoners, subject to any justifiable statutory claims for exemption. Given the completion of the national investigation, the institution would have been able to justify continued segregation for investigatory purposes only if it could show that the release of prisoners to the population would interfere with the ongoing RCMP investigation -- something I very much doubt it could have shown. This institution’s case for continued detention would have focussed primarily on the belief that the release of prisoners would endanger their safety. In support of its position, the administration would have presented information collected from other prisoners that the release of the men believed to be involved in Christian Grenier’s death would result in retaliation against those men. The prisoners in segregation would undoubtedly have argued that much of this information came from prisoners in C unit with a vested interest in ensuring that the segregated prisoners did not come back into the population -- their continued segregation would help consolidate C unit's power in the institution. They would further have argued that the rhetoric of retaliation should be assessed in this light and therefore be heavily discounted. The administration might have argued that the C unit prisoners making the threats had proven themselves capable of violent retaliation in the past, spending long periods in the Special Handling Unit in Quebec as a result. The prisoners in segregation would likely have countered that precisely because these prisoners had come out to western Canada from the SHU to escape their reputations, they were not likely to instigate a battle. (The segregated prisoners might also have been tempted to respond -- although this would have been ill advised -- that in terms of firepower A unit and their friends were more than a match for C unit and their allies. The potential resulting war was in fact the worst-case scenario feared by the warden.)

An independent adjudicator fully briefed on the volatility of the situation would likely have concluded that the institution had reasonable grounds to believe the release of the segregated prisoners, at this juncture, would pose a serious risk to both their safety and the security of the institution. However -- and this is extremely significant -- the independent adjudicator would then turn the legal inquiry towards alternatives to segregation and the development of a plan for reintegration. Within that framework, consideration would be given to the proposals of the prisoners for mediation. Over the past month, prisoners had suggested, to me and others, a number of scenarios for a mediated settlement of the dispute between the two units. The early release of Claude Forget was one of those. In this case, in fact, the process of mediation could have been started shortly after the five-day review, with some reasonable expectation that a plan be developed and presented at the thirty-day review.

Let us be clear about the complexity of the situation at Kent as "Deadly July" continued into August. The risk of further violence was very real. Various postures were taken by prisoners, some talking up the risk of retaliation and others the possibilities for a truce. No one could say with any confidence what the real risks were. The person with primary responsibility for risk assessment was the IPSO, who was not only completely overwhelmed with other work but, by his own admission, still getting up to speed on what had happened in the prison during his annual leave. Even more important, as the institution’s point man, he was not someone in whom most prisoners would confide. I had little doubt that the information I was receiving was much closer to the mark. In such a situation, an independent adjudicator could play a crucial role by ordering the appointment of a mediator from outside the institution at an early stage of the process. The most positive outcome would be a mediated settlement to which all parties could commit. If that settlement proved impossible to achieve, the only remaining alternative to long-term segregation would be transfers to other institutions.

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