Enhancing Segregation Review

As the events of "Deadly July" were unfolding at Kent, the CSC’s National Headquarters were proceeding with their efforts to enhance the segregation review process. An important strategy in that enhancement was a series of training workshops held in each region of the country for the benefit of institutional managers involved in segregation review. The purpose of the workshops was to provide managers with a more detailed understanding of the law relating to segregation and a set of written materials which they could employ to help them carry out reviews in compliance with the law and improve the effectiveness of the process. I attended the workshop for the Pacific Region in January 1998. The workshop, spread over two days, was conducted by Jim LaPlante, who had been a member of the Task Force on Segregation and had been given primary responsibility for the implementation of the Report, and Charles Haskell, also a member of the Task Force and one of the CSC’s legal advisors.

The main focus of the workshop involved Jim LaPlante and Charles Haskell reviewing the legal requirements of the CCRA and CCR Regulations and suggesting ways in which CSC staff can enhance their capabilities in complying with the law and making the system more effective. The workshop focused on how fairness could be enhanced through greater sharing of information with the prisoner regarding reasons for segregation and a plan for reintegration. Jim LaPlante gave an example of a prototypical case and how documentation provided to the prisoner on placement, prior to the 5 day review and prior to subsequent reviews, could be improved by a fuller explanation of the "story" which underpinned the institution’s case. This would not only allow the prisoner to make an informed response, but it would also permit subsequent decision makers, or those looking at the case in the event of external review, for example a judicial proceeding or an audit, to understand clearly how the case was being managed in compliance with the law. Workshop participants were asked whether they had any problems with the degree of information sharing which was being required. There were several responses; such sharing was unnecessary because the prisoner in most cases knew the basis for his segregation; in other cases the requirement went far beyond the CSC’s customary practices and was impracticable in an institution such as Kent, due to the high number of prisoners in segregation and the limited resources available to generate the kind of paperwork that was being suggested.

What this exchange brought out was the way in which "the law" is understood by many CSC staff. Rather than seeing the law as an expression of societal values that included a process guaranteeing fundamental fairness, the law is seen as creating unnecessary and intrusive impediments to getting the job done. Instead of being able to manage the segregation unit, the unit manager is required to spend hours at a computer screen making sure the documentation is in good shape in order to pass an audit. Even though Charles Haskell tried to explain the chain that links the Charter of Rights to the CCRA and to the Draft Segregation Manual, there was in the air and in peoples’ body language a sense of resistance to what was perceived as Ottawa-speak divorced from the operational reality of the segregation unit.

During the course of the first day I was asked to give my views on what was being proposed for increased sharing in writing of information prior to the 5-day review, based on my experiences at Kent and Matsqui. Non-compliance with the legal requirement of sharing information with prisoners in advance of the segregation review hearing had been a common problem right across the country in the first audit conducted by the Task Force and the 1998 audit at Kent had identified it as being a continuing problem at that institution. I suggested that one of the reasons why staff appeared resistant to the requirement of written sharing of information was that it conflicted with the oral tradition of the Service. Although staff and managers were now conditioned to the importance of paper trails and documentation for transfers and paroles, segregation review was one of those areas that remained firmly within the customary practices of oral culture. That practice was that any discussion that took place before the 5 day review between the unit manager, the IPSOs and the CMO and other staff typically was in the form of information shared at a briefing or meeting. Although this information might be critical to the decision at the 5 day review, it was not the practice to reduce it to writing for the purpose of sharing it with the prisoner prior to the review. Taking seriously the legal requirement of sharing in writing all information to be considered by the Segregation Review Board three days prior to the 5 day review, would require significant change in this customary practice and would involve those involved giving greater priority to the preparation of the necessary documents. For example, where the basis of the segregation was information received by the IPSO, that officer would have to prepare a "gist" no later than the second day of segregation. This was never done at Kent because it was not seen as a priority. Indeed, in the few cases at Kent where I saw "gists," these appeared very late in the process.

In reflecting on the day’s events and the sources of some staffs’ resistance to increased sharing of information in advance of the segregation review hearing, I believe that this goes beyond the legitimate concern that in an institution like Kent, where the segregation population is high, this will result in increased workloads on already overburdened unit managers. There was also a scepticism as to the justification for this requirement, based on a questioning of what difference would such sharing make to the process. So long as decision making lies in the hands of CSC staff, where greater weight will be given to information generated from staff sources (including "reliable informants") and the rebuttals of prisoners are discounted as unreliable and self-serving, sharing information with the prisoner is not seen as having much benefit in terms of changing the ultimate result; so why do it where it means additional work for the staff? What this suggests is that the whole issue of sharing of information is linked to the issue of who makes the decision and whether that decision-maker subscribes to the principles of fairness, integral elements of which are not only the prior sharing of information but also an objective assessment of the competing evidence.

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