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The clandestine nature of preventive security work and the "deep throat" character of some information-gathering is not only a source of concern to many prisoners, but is viewed with scepticism by some correctional staff. In January 1994, Matsqui case management officer Dave Sinclair described to me the situation surrounding Mr. Baker's proposed transfer to minimum security. A progress summary had been prepared supporting the transfer, but the IPSOs told Mr. Sinclair they had received information that Mr. Baker had brought drugs into the institution after an escorted temporary absence pass in November 1993. Mr. Baker vehemently denied this accusation, and Mr. Sinclair believed it to be inconsistent with his knowledge of the man. Accordingly, he prepared a memorandum to that effect.

After hearing the IPSOs' information and where they obtained it, this writer's opinion is that there does not appear to be enough credible information to support this accusation.

Mr. Baker currently has an outside grounds clearance and goes to work in the outside warehouse on an almost daily basis. As well, he has been diligent in completing his Correctional Plan. There is no indication from any source that Mr. Baker is involved in the "drug scene" here at Matsqui either as a user or as a dealer. The CMT [Case Management Team] continue to support Mr. Baker's request for transfer to Ferndale as we do not find there is enough hard evidence of wrongdoing to override the great gains Mr. Baker has made. In our opinion he has earned enough credibility to warrant our continued support. (Memorandum, Dave SInclair, Matsqui Institution, January 24, 1994)

Without such intervention, the preventive security information would have been highly prejudicial to Mr. Baker's transfer prospects. Given the open nature of minimum security institutions, wardens there are unlikely to accept prisoners about whom there is IPSO information regarding active drug involvement or muscling.

Mr. Sinclair, as an experienced case management officer, brought to this work several attributes which are increasingly rare within the CSC. He was not afraid to advocate on behalf of a prisoner who had earned the case management team's support; he was therefore not afraid to "butt heads" with correctional staff when he perceived improper interference with a fair and principled decision. He also possessed a degree of scepticism regarding the information gathered by preventive security officers (the "secret squirrels," as he called them); he was therefore not afraid to challenge that information where it contradicted his own opinions, which were based on interaction with and knowledge of prisoners. I saw no other instances at either Matsqui or Kent in which a case management officer provided a written evaluation of why preventive security information was not sufficiently credible to hold up a transfer to lower security.

Dave Sinclair was also critical of the practices of some IPSOs in fostering a network of informants. Many of the prisoners he dealt with had very low self-esteem and a lack of respect not just for others but for themselves. For the CSC to turn them into informants, valuing and rewarding them only for "ratting" on other prisoners, was, in Mr. Sinclair's opinion, subversive of a positive correctional mission.

Earlier in this book, I compared looking at life inside a penitentiary to looking through a kaleidoscope. One prisoner I interviewed used the image of a blurred video picture. Ray Enright had been a professional football player back in the 1970s. A sharp focus and broad peripheral vision were part of his stock in trade, and they proved essential assets for survival in prison. At the time of our interview in September 1993, he had served thirteen years for murder, mostly in the maximum security Edmonton Institution. On his recent transfer to Matsqui, he had been surprised at the pervasiveness of the drug scene, and found it difficult to sort out what was going on. Life at Matsqui, he said, was "like watching a video screen in which the images are blurred so that you're not quite sure of what is happening." This image evokes well the nature of preventive security. When the administration takes decisive action because of a play that has gone down, they in effect freeze the picture, and the people they identify as players are those who happen to be in the frame at the time. In the shadowland of drug dealing, the images are often out of focus, however, even for other prisoners, and there is an inherent danger that the wrong people will be identified.

It is within this highly complex context of covert intelligence gathering that a model of fairness must be fashioned within the prison. In many of the cases I reviewed, the allegations against prisoners were based on "information received from a reliable source." Very rarely were reasons given for finding this information compelling or credible. The present procedures surrounding both segregation and involuntary transfer involve no legally anchored, independent determination of whether information is sufficiently reliable to justify interference with a prisoner's liberty. Independent adjudication would provide a framework for achieving a balance between the claims of confidentiality and fairness; under the present practice, in a contest between the two, it is fairness that almost always suffers defeat.

In several recent high-profile criminal cases, innocent people were found to have been wrongfully convicted on the evidence of "jailhouse informants." The wrongful conviction of Guy Paul Morin was the subject of a Royal Commission conducted by Mr. Justice Kaufman. The resulting report highlighted the extreme dangers of relying on prison informants:

In-custody informers are almost invariably motivated by self interest. They often have little or no respect for the truth or their testimony or oath or affirmation. Accordingly, they may lie or tell the truth, depending only upon where their perceived self-interest lies. In-custody confessions are often easy to allege and difficult, if not impossible, to disprove. The evidence at this enquiry demonstrates the inherent unreliability of the in-custody informant's testimony, its contribution to miscarriages of justice and the substantial risks that the dangers may not be fully appreciated by the jury. In my view, the present law has developed to the point that a cautionary instruction is virtually mandated in cases where the in-custody informant's testimony is contested. ( Report of the Commission on Proceedings involving Guy Paul Morin [Toronto: Ontario Ministry of the Attorney General, 1998] [Chairman: Fred Kaufman] at 602, 638)

The Kaufman report recommended a long list of factors to be considered in assessing an informer's reliability. These include the extent to which the statement attributed to the accused is confirmed by independent evidence; whether the alleged statement contains detail that could be known only to the perpetrator; any request the informer has made for special benefits and any promises that have been made; whether the informer has given reliable information to authorities in the past; whether the informer made a written or other record of words attributed to the accused and, if so, whether that record was made contemporaneously with the alleged statement; and the nature of the relationship between the accused and the informer (Kaufman Report, pp. 607-9). The Ontario Ministry of Attorney General has since revised its internal policies to incorporate many of the report's recommendations. New policies include the establishment of an In-Custody Informer Committee, which will review all criminal trials using in-custody informers as witnesses to determine whether this is in the public interest.

Two years after the Kaufman Report, the Supreme Court of Canada addressed the issue of jailhouse informants. In R. v. Brooks, Mr. Justice Binnie had this to say:

"Jailhouse informant" is a term that conveniently catches a number of factors that are highly relevant to the need for caution. These include the facts that the jailhouse informant is already in the power of the state, is looking to better his or her situation in a jailhouse environment where bargaining power is otherwise hard to come by, and will often have a history of criminality. This is not to deny the possibility that a jailhouse can on occasion produce a trustworthy witness. The trigger for caution is not so much the label "jailhouse informant" as it is the extent to which these underlying sources of potential unreliability are present in a particular case. ( R. v. Brooks, [2000] 1 S.C.R. 237 at para. 129)

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Justice Ian Binnie