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
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
"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,
 1 S.C.R. 237 at para. 129)
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