SECTOR 5
CHAPTER 1
INVOLUNTARY TRANSFERS -- GREYHOUND THERAPY THEN AND NOW

Transfers from one institution to another are an integral part of a modern prison regime. One hundred years ago, five bastilles -- Kingston, Dorchester, Laval, Stony Mountain, and the B.C. Penitentiary -- constituted the carceral landscape of maximum security in Canada. Today there are forty-nine federal institutions that cover a spectrum of security, from the most intensive in the Special Handling Units to the least intrusive in minimum security camps without fences. A Correctional Service of Canada report explains the hierarchical nature of the federal prison system and the role of transfers within it:

The Correctional Service of Canada has jurisdiction over a vast network of inter-related institutions. This network is organized in a hierarchical fashion based on a highly elaborated punishment/reward structure that holds out the incentive of minimum security living conditions in exchange for co-operation with the administration. Social control exists not with the individual institution but with the system as a whole. Each institution is defined by its security level and transfers between institutions are commonplace in a centralized hierarchical system.

Very directly related to transferring is CSC's "cascading" policy. Cascading, begun in 1979, is the practice of transferring inmates to the lowest security level possible insofar as is practical, respecting the Service's mandate to protect the public. The cascading practice is also consistent with the opportunities model. An inmate's reward for good behaviour is a transfer to a lower level of security . . . Reverse cascading can also occur and is consistent with the punishment/reward system. ( Report of the Study Group on Murders and Assaults in the Ontario Region, [Ottawa: Correctional Service of Canada, 1984] at 37-38)

What the report did not identify is the pervasive sense among prisoners that the process of reverse cascading -- of returning prisoners to higher security, in particular to maximum security -- is a major source of injustice. It has been left to other reports, most significantly the annual reports of the Correctional Investigator, to highlight this sense of injustice, reflected in the fact that involuntary transfers are consistently the single greatest cause for complaints.

As the Study Group's report indicates, the practice of reverse cascading is explicitly tied to the punishment/reward system in the penitentiary. Prisoners convicted of disciplinary offences involving assault, attempted escape, threats, drug dealing or other behaviour viewed as disruptive to the regime of a medium security institution are regularly transferred to maximum security. These are labelled "involuntary administrative transfers," but they are seen by everyone as being an additional disciplinary measure. In cases where the prisoner's conduct is viewed as immediately prejudicial to the personal safety of staff or prisoners, an emergency transfer to maximum security is made before any disciplinary hearing has been held.

In a significant number of cases, prisoners are transferred from medium to maximum security in the absence of formal disciplinary charges on the basis of allegations and the suspicion of misconduct. The justification for involuntary transfers without formal proof of a disciplinary offence was expressed by the warden of Joyceville Institution in 1981 in this way:

One personal observation I have made is that, as a consequence of the expansion of individual rights, a lot of inmates are actually losing certain rights, for example: the right to do their time as they see fit; the right not to have someone muscle them for their canteen -- I know of many cases in which an inmate has gone for months without cigarettes, chocolate bars or shampoo, because someone on the range who was bigger, stronger and smarter than he was, simply told him to turn it over. The Warden cannot prove anything in such cases any more than he can prove, for example, that one inmate is raping another inmate every second night. Now how do you deal with that kind of problem? You cannot do it capriciously, nor do I think that we should be able to but, at the same time, when we know that an inmate is harming others in a prison population, I think it is incumbent on us to move that person into another institution. And we do know when and how much harm is being done, not from courtroom-like evidence but from the experience of working in the institutions and from a knowledge of the prison population. The type of action that is required has been referred to over the years as "Greyhound therapy." You back the bus up, you throw five or six inmates in the bus, you drive them 40 miles down the road to increased security, and the whole tone of Joyceville, the medium security institution I work in, mellows. Those inmates who were stealing cookies and chocolate bars are now gone. It might be six months before someone else starts stealing cookies and chocolate bars. (Ken Payne, "Inmates' Rights: The Implications for Institutional Managers," in National Parole Board Report on the Conference on Discretion in the Correctional System, (Ottawa: Minister of Supply and Services, 1983 at 2).

From Warden Payne's perspective, discretionary decision-making is used to secure the protection and safety of prisoners. He expressly disavows the capricious exercise of discretion, yet it would be difficult to persuade a prisoner rounded up as one of the five or six prisoners suspected of muscling (but who in fact is not involved) that his transfer to maximum security without a charge, without a hearing at which he can hear the case against him and present evidence in response, is not the very definition of capriciousness.

For Warden Payne, any harm caused through an error in judgement in the exercise of discretionary power is a necessary cost of doing the business of corrections.

Given the reality of penitentiary life, we have to be given the opportunity to err on the side of caution. It is better to move five or six people, four of whom you are certain are doing nasty things in your institution, and a couple of whom you suspect might be, to another institution, than to gamble and leave a couple of inmates behind, and perhaps later pay the price of more riots or another assault . . . Without the power to act on experience and "gut" intuition, you might end up knowing who is responsible for a stabbing or a beating, but be unable to do anything about it. Because you lack solid proof, the responsible inmate will be cleared in the hearing, and the next thing you know he is in the institution, smiling and grinning at the staff. (at 4)

Since 1981, there have been important developments in both the law and the administrative practice relating to involuntary transfers, the purpose of which has been to provide prisoners with greater protection against arbitrary transfers. In this chapter, I will trace these developments, explore the role "Greyhound therapy" continues to play in correctional management, and evaluate whether the route traversed is marked with greater justice.

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