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1999 -- Streamlining the Transfer Process

In October 1999, significant revisions were made to transfer procedures. The principles articulated in the 1999 version of Comissioner's Directive 540, as implemented in detailed Standing Operating Practices, were "to ensure that offenders serve their sentences at the lowest level security necessary to meet their individual program needs and security requirements, to ensure that transfers are carried out in a fair, efficient and secure manner that meets the requirements of both the offender and the institutions involved, and that offender rights are protected" ( C.D. 540, para. 1). From an operational standpoint, the most significant change was that the decision-making for intra-regional transfers, whether voluntary, involuntary or emergency, was given to warden of the institution initiating the transfer. Prior to 1999, in the case of voluntary intra-regional transfers down the security ladder, while wardens of the receiving institution had this power; in the case of involuntary transfers up the security ladder, warden of the sending institution made the recommendation the Regional Deputy Commissioner had final authority. Under the new procedures, warden of Kent has the authority to effect a transfer from Kent (that is, up the security ladder) to lower security, although he or she must consult with the receiving institution before the transfer is implemented. More significantly, warden of William Head or Matsqui now has the authority to transfer a prisoner to Kent without the involvement of the Regional Deputy Commissioner.

This change with regard to voluntary transfers down the security ladder is consistent with the CSC's reintegration strategy, to ensure that prisoners are not warehoused in higher security facilities because wardens of lower security institutions are reluctant to accept them. (Readers will remember that, in Donny Oag's case, that reluctance was the principal contributor to his four years in segregation.) In a voluntary transfer to lower security, the prisoner and the correctional authorities at the sending institution have similar interests, and there are no conflicting factual issues to be resolved. The prisoner wants to go to lower security, and the case management team, supported by warden, believes that lower security is suitable and will further the prisoner's reintegration.

However, the cases I am concerned with in this chapter, involuntary transfers up the security ladder, are altogether different. They typically involve serious conflicts between institutional and prisoner interests and highly disputed factual issues relating to the prisoner's involvement in alleged wrongdoing. Under pre-1999 procedures, a Warden seeking an involuntary transfer made a recommendation to the Regional Deputy Commissioner's Office. The process ostensibly provided "a court of sober second thought" by someone removed from the cut and thrust of daily operations. But while there were cases in which involuntary transfers were not approved by regional headquarters, in the great majority of cases warden's recommendation was confirmed. This is hardly surprising. The task of preparing the regional decision was often assigned to a staff person with a lower rank in the correctional hierarchy than that of warden, and career advancement argued strongly for deference. Even where the Regional Deputy Commissioner or his delegate became actively involved in the decision-making, there were career-related reasons for extending deference to warden. There is regular movement at the CSC senior management level both between institutions and between institutions and regional headquarters, so that a former Warden reviewing a Warden's recommendation for involuntary transfer knows full well that the following year their roles may be reversed. As at all levels of the process, professional judgements are inevitably affected by a sense of trust and confidence in a colleague's capacity to make sound correctional decisions. This fact of correctional life is the reason I have argued so strongly for a system of independent adjudication. Yet the 1999 "reforms," far from moving in that direction, remove even the limited protection of the oversight of regional headquarters, allowing warden to, in effect, legislate his or her own recommendation.

The 1999 changes purport to better protect "offender rights" by requiring that the written notice of an involuntary transfer recommendation contain "enough information to allow the offender to know the case against him."

To meet this standard, the details of the incident(s) which prompted the transfer recommendation must be provided to the greatest extent possible. This may include providing the offender with the following information regarding the incident(s): where it occurred, when it occurred, against whom it occurred, the extent of injury or damage which resulted, the evidence or proof of its occurrence, and any further relevant information which may elaborate on the incident(s). In cases where sensitive information exists which cannot fully be shared, the offender shall be provided with a gist. (Transfer of Offenders, Standard Operating Practices -- 700-15, October 5, 1999, para. 12; revised February 2, 2001).

This passage must be viewed with a degree of scepticism, however. First, it restates what the Federal Court of Appeal in Demaria already requires under the duty to act fairly and s. 7 of the Canadian Charter of Rights and Freedoms. Furthermore, the new procedures do nothing to ensure that informant information meets the necessary threshold of reliability. Most significantly, they make no provision for independent review of claims to maintain confidentiality of "sensitive information." A measure of how well the new transfer procedures protect prisoners' rights is a security gist prepared by the preventive security office of William Head Institution in support of an involuntary transfer in July 2000, nine months after the required procedures came into effect.

The Preventive Security Office at William Head has long believed that Weaver was involved with a lot of the problems within population. He always seems to be involved in situations even though he may be actually removed from the situation physically. Weaver appears to be a puppeteer pulling the strings that cause things to happen. There has been a number of people that have implicated Weaver in their problems, but refuse to name him officially as they are terrified of him. The statement has been made that it is easier to just avoid Weaver than it is to name him and deal with the consequences. Although Weaver has been named unofficially no one will name him so that the information can be used. He is a problematic inmate that has worn thin his time at William Head. His reputation is that if he cannot get you one of his associates will. It is the belief of the Preventive Security Officer that things at William Head would cool down considerably once Weaver is transferred elsewhere. (Memorandum, William Head Institution, July 28, 2000)

Far from providing "enough information to allow the offender to know the case against him," this memorandum is evidence that faceless informers continue to adversely affect the lives of other prisoners. The only difference is that, post-1999, a Warden is the final judge of this information's reliability as it affects a decision regarding involuntary transfer. The 1999 reforms, touted as an advance in the protection of prisoners' rights, in fact mark a regression.

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The current CD dealing with Transfer of Offenders is CD 710-2, dated 2007-09-18