Let us return to the Belliveau situation. Let us hypothesize (and I emphasize, these are not the facts) that, sometime after Belliveau's murder, information is given to the warden of Matsqui by an eyewitness informant that Mr. Schiere, Mr. Angus, and Mr. Pelletier were involved in the killing; that this informant has supplied reliable information in the past; that there is a reasonable explanation for why this information was not forthcoming earlier (for example, the informant has since been transferred to another prison or been released from prison and is therefore less concerned about suspicion falling upon him); and that further inquiry of other prisoners corroborates that there was bad feeling between the deceased man and these three prisoners. Let us further hypothesize that information is received from other prisoners that the continued presence of the three men in Matsqui is intimidating; prisoners fear the same fate may befall them if they cross these men. But since the primary informant makes it clear he will not testify against the three men in a criminal or disciplinary hearing, in the absence of other evidence no charge can be laid against them.

Under these circumstances, is it reasonable for the warden, charged with maintaining the safety of staff and prisoners, to act as if Belliveau was killed by phantoms? Is it not reasonable for him to assert that he has reasonable grounds to believe these three men were involved in the killing, and that their presence in a medium security institution will jeopardize other prisoners and staff, and that these prisoners need the additional control of a maximum security regime?

The warden's need for authority in these circumstances is reinforced if we consider the implications of doing nothing. Other prisoners will see the warden's impotence as a demonstration that major crimes can be committed in the penitentiary with impunity. Staff will see his impotence as indicative of the absence of law and order inside the walls, contributing to their feelings of insecurity. Viewed from these perspectives, a lack of action could be seen as contributing to increased tension and as undermining both security and institutional authority at Matsqui.

The warden's case is not one that can be summarily dismissed. But neither can that of the prisoners. Leaving aside the particulars of this case, prisoners could offer the rejoinder that, outside of prison, police may be satisfied that an individual has committed a crime yet be unable to lay a charge for lack of evidence amenable to formal proof. For example, their information may come from an informant not prepared to testify at a trial. Their inability to take coercive measures against the suspect may undermine police confidence in the efficacy of penal sanctions and reinforce the perception among the suspect's peers that crime is not always punished. Members of the community aware of the real circumstances may fear for their safety because of the continued presence among them of the suspect. However, none of these concerns are viewed by the law as sufficiently compelling to override the fundamental principles that a person's liberty cannot be taken away unless he or she is charged with an offence and that such charges cannot be based on suspicion but must be founded on evidence amenable to proof in a court of law. Underlying these principles is the deep conviction that in a free and democratic society our liberty must not be curtailed on the basis of secret allegations made to the authorities. The apparatus of the criminal justice system seeks to enhance our sense of security in this, by requiring that allegations of wrongdoing be measured against the specific criteria of crimes and be proven before an independent tribunal in accordance with legally defined rules of evidence.

As Madam Justice Arbour made clear in her 1996 report, it is not sufficient to assert that prisoners fall outside the protective veil of due process by virtue of having committed crimes for which they are sentenced to imprisonment. The need to feel that one's life will not be subject to arbitrary assertions of power, that it cannot be reordered on the basis of secret allegations, is no less important to prisoners than it is to free men and women. Indeed, a strong case can be made that, because of the already circumscribed nature of prisoners' lives, their institutional or residual liberty is of special import.

The statements made by Dick Schiere, Mike Angus, and Robert Pelletier bear eloquent testimony to the depth of their feelings of injustice. They also indicate the effect such treatment had upon them as prisoners: it reinforced their scepticism about the nature of carceral authority, their sense of the hypocrisy of the "justice" system, and their deep alienation from the rest of society. Their feelings are no different from those we would have as free citizens were the police to come in the dead of night and, on the basis of allegations that we had been involved in a deadly assault, take us away from friends and family to a place of detention and let us know that we could be detained there indefinitely while the police pursue their investigations, that there might never be a trial before a judge or an opportunity to hear the case against us and present a defence. This nightmarish scenario is a hallmark of totalitarian regimes, reflected among other places in the anguished accounts of the mothers of the "disappeared" in Argentina and Chile in the 1970s.

But although it would be unfair to tell Mssrs. Schiere, Angus, and Pelletier that they are without a claim to justice because they are prisoners, the special nature of prison cannot be ignored in meeting the legitimate needs of the warden for the authority to deal with disruptive behaviour. The closed nature of prison society is such that prisoners, and to a lesser extent guards, cannot take steps, as the rest of us in the larger society can, to change their life circumstances so as to remove themselves from the danger zone. Prison society is a pressure cooker in which hostilities and paranoia are intensified and in which personal insecurity and physical risk loom large. As with administrative segregation, the real issue is how the competing claims of prisoners and prison administrators can be balanced to produce a decision-making process which is just and fair for both the keepers and the kept and enhances both sides' sense of security and respect for authority.

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