location: publications / books / Justice Behind the Walls / Sector 5 / Chapter 1 Involuntary Transfers: Greyhound Therapy Then and Now / Disclosure of Information -- Faceless Informers and Barbarian Princes

This notion of a prison run by "barbarian princes" ruthlessly applying a monolithic "convict code" stems from American maximum security penitentiaries with populations running in the thousands; it has little relevance in the much smaller, contemporary Canadian prison. Even as an American phenomenon, this depiction is more the stuff of which movies are made than a realistic description of prison. Jerome Washington, in his book Iron House, relates a story from the annals of Attica that captures the extensive trade in information between prisoners and the administration, belying Mr. Justice Muldoon's description:

The last time we tried a hunger strike the warden stormed into the mess hall and ordered us to eat. When no one made a move to break our solidarity by eating, the warden dragged a large chalk board into the middle of the mess hall. "This is your last chance," the warden shouted as he held up a piece of chalk for all to see, and then prepared to write. "If you men don't start eating right now," the warden screamed, "I'm going to write the names of every informer, snitch and rat in the prison." Before the chalk touched the board nearly every plate was clean. (at 70)

The issue of disclosure in the context of a transfer from medium to maximum security was addressed by the Federal Court of Appeal in the Demaria case. Mr. Demaria and his lawyer had sought to obtain from prison officials the particulars of allegations that he had had cyanide brought into the prison. These requests were refused. One reason given was that all preventive security information acquired by the CSC was confidential and could not be released to an inmate's legal representative. The Court ruled that this was not sufficient compliance with the legal duty to act fairly, stating:

The purpose of requiring that notice be given to a person against whose interests it is proposed to act is to allow him to respond to it intelligently. If the matter is contested, such response would normally consist of either or both a denial of what is alleged and an allegation of other facts to complete the picture. Where, as here, it is not intended to hold a hearing or otherwise give the person concerned the right to confront the evidence against him directly, it is particularly important that the notice contain as much detail as possible, else the right to answer becomes totally illusory. Indeed, the present case is an excellent example of the right to answer being frustrated and denied by the inadequacy of the notice. The appellant is told that there are reasonable grounds for believing him to have brought in cyanide. He is given no hint of what those grounds are. The allegations against him are devoid of every significant detail. When? Where? How? Whence came the poison? How was it obtained? For what purpose? How much? The allegation is said to be based on information obtained by the Millhaven staff and the Ontario Provincial Police. What information comes from which source? Is there an informer involved? If so, how much of the substance of his statement can be revealed while protecting his identity? Have the police pursued their inquiries? Have they made any arrests? The list of questions is almost endless. In the absence of anything more than the bald allegation that there were grounds to believe that he had brought in cyanide, the appellant was reduced to a simple denial, by itself almost always less convincing than a positive affirmation, and futile speculation as to what the case against him really was.

There is, of course, no doubt that the authorities were entitled to protect confidential sources of information. A penitentiary is not a choir school and, if informers were involved (the record here does not reveal whether they were or not), it is important that they not be put at risk. But even if that were the case, it should always be possible to give the substance of the information while protecting the identity of the informant. The burden is always on the authorities to demonstrate that they have withheld only such information as is strictly necessary for that purpose. ( Demaria v. Regional Classification Board and Payne, [1987] 1 F.C. 74 at 77-78)

Based on the jurisprudence of cases such as Demaria, s. 27 of the CCRA now contains specific provisions dealing with the disclosure of information to prisoners:

(1) Where an offender is entitled by this Part or the regulations to make representations in relation to a decision to be taken by the Service about the offender, the person or body that is to take the decision shall, subject to subsection (3), give the offender, a reasonable period before the decision is to be taken, all the information to be considered in the taking of the decision or a summary of that information.

(2) Where an offender is entitled by this Part or the regulations to be given reasons for a decision taken by the Service about the offender, the person or body that takes the decision shall, subject to subsection (3), give the offender, forthwith after the decision is taken, all the information that was considered in the taking of the decision or a summary of that information.

(3) Except in relation to decisions on disciplinary offences, where the Commissioner has reasonable grounds to believe that disclosure of information under subsection (1) or (2) would jeopardize:

(a) the safety of any person

(b) the security of a penitentiary, or

(c) the conduct of any lawful investigation,

the Commissioner may authorize the withholding from the offender of as much information as is strictly necessary in order to protect the interest identified in paragraph (a), (b) or (c).

The faultline in these provisions is that decisions relating to non-disclosure continue to be made by correctional administrators. In commenting on the new provisions when they were before Parliament, I argued that disclosure of information is critical to the operation of a fair system. Where a prisoner's rights are at stake and correctional administrators have made a preliminary decision not to disclose relevant information to him -- specifically in the context of administrative segregation or involuntary transfer -- the issue should be referred to an independent adjudicator who, under my proposed Segregation and Transfer Codes, would assess the justification for these decisions.

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