location: publications / books / Justice Behind the Walls / Sector 4 / Chapter 5 A Deadly July: Prison Politics, Staff Realities and the Law / Enhancing Segregation Review

Charles Haskell captured something of the institutional perspective on sharing of information when he compared the information in the hands of the institution, upon which they based segregation, to a hand of cards in a poker game. But segregation, unlike poker, is not a game. In poker, it was not only appropriate but an integral part of the game not to disclose the strength or weakness of the cards in your hand, in order to gain a strategic advantage over your opponent by leaving him guessing, hoping that he will guess wrong; in segregation, the disclosure of the cards in your hand was not only desirable but an integral, mandatory part of the Rule of Law to achieve fairness in allowing the prisoner to know the case against him and to respond to the allegations fully.

On the second day of the workshop Charles Haskell gave a presentation on the historical development of fundamental principles of justice and how the common law duty to act fairly had evolved from the prior bright-line distinction between judicial and administrative decisions, a development I have outlined in Sector 1, Chapter 3. He explained the facts behind the Nicholson decision, the case dealing with the police disciplinary process, in which the Supreme Court of Canada had affirmed the duty to act fairly in 1978. Paradoxically, he made no reference to the Martineau case which, together with Nicholson, forms the Canadian legal foundation for the duty to act fairly. I supplemented Mr. Haskell’s remarks by pointing out that it was in the Martineau case that the Supreme Court had clearly affirmed not only the existence of the common law duty to act fairly, but its application in the correctional context. I commented further that the fact that Bob Martineau -- in 1979 a prisoner at Matsqui and twenty years later a prisoner at Mission -- had been the litigant in this leading case was not just an accident of history; it also provided a contemporary context for the assertion, both by Mr. Martineau and many other prisoners, that issues of fairness continue to be the ultimate test of the legitimacy of prison decision-making. Whereas many staff had their own views of Bob Martineau, few recognized or acknowledged his role as an important carrier of both the cultural and legal value of fairness.

Mr. Haskell then went through some of the essential features of the segregation review hearing process as set out in the Segregation Review Handbook. One of those areas was the issue of impartiality and the importance of avoiding any unfair bias. He made the point that no decision-maker, including judges of the Supreme Court of Canada, comes to any issue in a vacuum and that everyone has their own values, perspectives and biases. Unfair bias is where prior experience or attitudes interferes with the appearance or reality of fairness. He gave the example of conflict of interest in municipal politics where a local real estate developer is elected to Council. If an issue comes before Council regarding zoning of land in which the Council member has an interest, there is not only a duty to disclose that interest but to the extent that a decision may benefit or prejudice that interest, to refrain from participating in the decision. In the segregation context the only example Mr. Haskell gave of unfair bias was the inappropriateness of a person chairing a segregation review where the prisoner segregated was alleged to have assaulted that chairperson. There was, however, no further discussion of other kinds of biases, for example, of preferences for institutional sources of information, for staff safety over prisoners’ rights and liberties, or administrative convenience over fairness, matters I have raised in previous chapters and that were the subject of discussion in the report of the Task Force on Segregation. In other words, the crucial issues that animate the debate over independent adjudication were finessed in the Legal Training Workshop.

The legal training workshops were one part of a number of other initiatives undertaken by the Correctional Service to enhance the fairness and effectiveness of the segregation review process. The development of the Administrative Segregation Handbook, which in draft form had its first airing at the training workshops, was another important element. The Handbook was a response to one of the recommendations of the Task Force on Segregation that the law, policy and procedural guidelines relating to segregated prisoners be combined into a single comprehensive resource. The Handbook, fifty-two pages in length with several appendices, covers a number of topics; it sets out the legal framework within which administrative segregation is set, explains the legal justifications for segregation and the procedures governing placement in segregation; describes the cycle of hearings and reviews (5-day, 30-day and 60-day) which punctuate a prisoner’s stay in administrative segregation and the responsibilities of CSC staff involved in hearings and reviews; sets out principles which determine prisoner entitlements while in administrative segregation and provides an overview of the Segregation Module in the Offender Maintenance System (O.M.S.) which constitutes the official segregation record. The Segregation Module was specifically designed to take into account the policy and procedural changes introduced following the Task Force Report and incorporate a series of screens through which entries are made at every stage of the segregation process, designed to ensure compliance with the law and policy. Thus, the O.M.S. provides for updating of a prisoner’s file

  • upon placement in administrative segregation
  • to record the prisoner’s access to counsel
  • to record the sharing of information with the prisoner
  • when the Institutional Head confirms placement
  • after each review (5 day, 30 day, 60 day)
  • when a prisoner lodges a rebuttal of the review’s decision
  • when a psychological/psychiatric opinion is rendered
  • whenever new information concerning the prisoner’s segregation status is available
  • when the prisoner is released from segregation

The O.M.S. Segregation Module has a new ‘Sharing of Information’ form and also the ‘Institutional Review Form’ has been expanded to include a space to indicate whether the prisoner has presented a rebuttal to the reasons given for segregation and, if so, a synopsis of that rebuttal. The Administrative Segregation Handbook and the Segregation Module are highly commendable efforts by the CSC’s national headquarters to provide all staff involved with administrative segregation a reference guide to ensure compliance with the law. The Handbook contains clear language underlining the importance of the decision to segregate a prisoner and of the principles and processes set out in the law to ensure that it is done only as a last resort and in accordance with principles of fundamental justice. The following passages are illustrative:

Every inmate’s confinement in Administrative Segregation must be punctuated by regularly scheduled hearings and reviews . . . In terms of law and policy, these requirements are driven by the C.C.R.A. and C.D. 590 . But underlying those documents and driving them, is an over-riding concern for due process which goes straight back to the Charter (particularly section 7, which focuses on procedural fairness) and the duty to act fairly, which is one of the central tenets of Administrative Law.

Page 2 of 3