Postscript

In March 2001, I returned to Kent to observe a series of five-day reviews held following an assault on a staff member by a prisoner. The prisoner was overpowered and immediately taken to segregation. Subsequently, five other prisoners were segregated based on allegations that they had been present at a Lifers’ group meeting in B unit immediately prior to the assault and had conspired to have the assault carried out. Each of the prisoners received a segregation notice that stated:

The date and timing of this meeting is significant as shortly afterwards an officer was attacked with a wooden paddle similar, if not the same one, given to the attacker during the meeting. The inmates who attended this meeting are believed to have conspired and pre-planned the violent physical assault upon a staff member in the evening and directly participated by arranging for the aggressor to have possession of the wooden paddle which was used as a weapon. (Segregation Notice, Kent Institution, March 22, 2001)

The five-day reviews for the segregated prisoners were scheduled for Thursday, March 28. When I arrived at Kent that day, I was told that three of the prisoners had been transferred that morning on an emergency basis to other maximum-security institutions across the country. As I observed the reviews of the two remaining prisoners and five others, a clear pattern emerged as a basis upon which to measure the changes in the segregation review process at Kent since 1998.

The reviews were chaired by Irv Hammond, the unit manager for Segregation. Also present was Darryl Broadbank, the programming co-ordinator for segregation who, beginning in 1999, initiated cognitive living skills and anger management modules for segregated prisoners. This had been one of the recommendations of the Task Force on Segregation. Other staff members at the reviews were the institutional parole officers (IPOs) specifically assigned to the segregation unit and the IPOs assigned to individual prisoners. The only IPO who had been at Kent during the Task Force on Segregation’s work was Barry Owen, one of the two veteran case management officers.

None of the guidelines set out in the Draft Administrative Segregation Handbook was observed at the five-day reviews. Procedural safeguards were not reviewed to ensure that prisoners had received both three days’ notice of the hearing and written information; there was no tape recording of the hearing; and the chairperson did not describe the circumstances leading to each prisoner’s segregation. Thus, even what Mike Csoka had described as "clearing legal stuff out of the way" was omitted, on the assumption that these procedural requirements had been observed.

Unit Manager Hammond began each hearing by introducing himself and asking whether the prisoner knew the other staff members in the room. He introduced me as an observer, then asked the prisoner’s IPO to summarize why the prisoner had been placed in segregation. In Mr. Ellis’ case, when there was some hesitation as to who would present this summary, the prisoner himself jumped in, taking the initiative with the comment, "Do you want me to run this show? The reason I’m down here is that they say I threatened to slit a staff member’s throat." Mr. Ellis then read from the report he had been given as part of the written sharing of information. This alleged that Officer Jones had heard a prisoner from a cell in the lower range of B unit call out, "Who is that on the camera? Is that Jones? I’m going to slit your fucking throat." Officer Jones asked Officer Head which prisoner had called out, and he identified Mr. Ellis. Mr. Ellis acknowledged that he had mouthed off at Officer Jones in the past but said they had resolved their differences and he had not made the threats attributed to him on this occasion. Mr. Ellis challenged the reliability of this identification by pointing out that at the time of the incident he had moved to the upper range of B unit, and Officer Jones had identified the threatening voice as coming from the lower range. Furthermore, from Mr. Ellis’ cell on the upper range, it was physically impossible to see who was shown on the camera located on the lower range. Mr. Ellis asked that he be released from segregation since he had already spent six days in the hole without justification. Mr. Hammond said he would follow up Mr. Ellis’ version of events with the IPSO and convene another hearing once that investigation was complete, so Mr. Ellis would not have to wait for his thirty-day review. Mr. Ellis challenged the need for further investigation; there could be no argument about where he lived, and clearly Officer Head had made a mistake. Mr. Hammond said it was his job to review the reports and further investigate the matter. Mr. Ellis pointedly retorted, "Why wasn’t this done during the last six days? Why didn’t the IPSO come down and hear my side of the story? I’ve shared it with other staff."

Mr. Ellis’ comments recalled those of Glen Rosenthal at his five-day review following the Grenier killing in July 1997. They exposed the continuing failure of the five-day review process to measure up to the legal requirements of a "review," at which specific allegations are tested in the crucible of evidence and judgements are rendered on the basis of that evidence. While in some cases judgements may not be possible at the five-day review, since the facts are still being investigated, in Mr. Ellis’ case segregation was based on a specific allegation to which he had a very specific answer. His defence could easily have been investigated before the five-day review.

The same flaw was exposed in the review of Mr. Gibson. His segregation notice said Mr. Gibson was believed to be part of the conspiracy to assault a staff member. The observation reports included in the sharing of information alleged he had been present at the meeting in the Lifers’ office in B unit. Mr. Gibson acknowledged that he was president of the Lifers’ group and that he had been in B unit prior to the assault on official business, gathering signatures for some proposals that were going to the warden. However, he had not attended any meeting in the Lifers’ office. He acknowledged that he had been in the pool room immediately beside the Lifers’ office and suggested that his mistaken identification may have stemmed from that. (The staff office, the Lifers’ office, and the pool room are separated by walls with large glass windows which enable staff to see into both the other rooms.) Mr. Gibson also pointed out that the observation report he received was dated before the meeting in the Lifers’ office was supposed to have taken place, suggesting that the officer may have been confused on a number of matters. Mr. Gibson’s third point was that after leaving B unit he had returned to his own unit and made a phone call to a friend. The institution could confirm from his PIN number that at the time the meeting in B unit supposedly took place, he was on the phone in another part of the prison. Mr. Gibson said that Mr. Laverty, the prisoner who had committed the assault, was his partner and best friend. However, Mr. Laverty had never spoken to him about planning to assault an officer, presumably because Mr. Gibson would have tried to dissuade him from this course of action.

Mr. Hammond told Mr. Gibson he would investigate the matter further with the IPSO. As with Mr. Ellis, the IPSO had not yet spoken to Mr. Gibson, even though there were significant elements of his defence, in particular the phone call, which could have been verified prior to the five-day review.

The other prisoner who remained in segregation as part of the assault investigation was Mr. Miller. Mr. Miller acknowledged he had been in the Lifers’ office in B unit but stated this was solely for the purpose of giving a tattoo and had nothing to do with the planning of an assault. He was told by Mr. Hammond that he would remain in segregation pending the completion of the investigation. Mr. Miller had not yet seen anyone from the IPSO’s office, nor had he been asked by any other staff member to account for his activities in the unit.

In addition to the five-day reviews, I also observed several thirty-day reviews. Mr. Colluney’s case illustrated how institutional politics can undermine compliance with the law, again reinforcing the need for independent adjudication. Mr. Colluney had been placed in segregation at Mission Institution following the interception of drugs his visitor had tried to smuggle in. After spending two months in segregation, he was involuntarily transferred to Kent, where it was discovered that he had a listed incompatible in the open PC population. He therefore remained in segregation while the IPSO’s office explored the possibilities of mediation. Such mediation did not prove feasible, and Mr. Colluney, notwithstanding his cooperative behaviour, remained in segregation. At his ninety-day review, he was advised that Kent would seek his re-transfer to Mission Institution. This plan was pursued with the full support of his case management team. The Mission administration, however, was not prepared to accept Mr. Colluney back for at least six months. Given his incompatibility in the open population, he would have to serve those six months in segregation at Kent.

Several staff members at Kent had already raised Mr. Colluney’s case with me; they believed he was being unfairly kept in segregation while the wardens of Kent and Mission played hardball with each other. At Mr. Colluney’s segregation review hearings from December 2000 to February 2001, the same entries appeared on his file:

His behaviour continues to be fully satisfactory and his case will be pursued for a return to medium-securityto alleviate long-term segregation. A check with the preventive security officer does not identify any additional information at this time. (Review of Offender’s Segregated Status -- Institutional Review, Kent Institution, December 2000 - February 2001)

At the time of his segregation review on March 28, 2001, Mr. Colluney had been in segregation for 146 days. Mr. Hammond advised him that the Kent administration was still endeavouring to have him transferred back to Mission. Almost despairingly, Mr. Colluney reminded the Segregation Review Board that he had been in segregation at Kent for five months, on top of the two months he had spent in segregation at Mission. In the middle of February he had been reclassified to medium security, and he was now only six months from his release date from prison.

Mr. Hammond acknowledged all of these facts. Tellingly, he concluded the review by saying, "We are doing everything we can, and I realize that we’re getting close to the end of our legal rope."

After Mr. Colluney left the room, I engaged Mr. Hammond and other staff members in a discussion of his case. I suggested that since Mr. Colluney was a medium-securityprisoner and a transfer to Mission was a reasonable alternative to segregation, the warden of Kent had no legal rope at all left under the CCRA. Under amendments to the transfer process introduced in 1999 (the subject of Sector 5 of this book), the warden now had the decision-making authority to transfer Mr. Colluney to Mission. Mr. Hammond said he had impressed upon the warden the inappropriateness of keeping Mr. Colluney in segregation and this case had become an embarrassment to his staff.

In a later conversation with one of those staff members it became clear it was more than just embarrassment. I was told staff understood Mr. Colluney was being held illegally, given the existence of a reasonable alternative. Yet because of institutional politics, the warden of Kent seemed unable to pull the decision-making trigger to get Mr. Colluney to Mission. How could staff be expected to give high priority to compliance with the law when the wardens of Kent and Mission were prepared to allow institutional politics to compromise it? It was a good question, and one I posed to the warden of Kent when I spoke to him later that day.

The end-of-the-legal-rope metaphor seemed to have an energizing impact. Telephone calls and e-mails flew between Kent and Mission, and arrangements were made for Mr. Colluney’s transfer, which took place two days later. Under a system of independent adjudication along the lines I have recommended, that transfer would have taken place at least two months earlier.

Page 1 of 1