My own observations over the twenty-four year span of the Special Handling Units and my interviews with the prisoners who have experienced life within these units confirms that the Units have never met their stated objective; they have, however, more than satisfied their unstated purpose of intensifying the pains of imprisonment. As we begin the next millennium the time has come to recognize that the Special Handling Unit, like its predecessor the Prison of Isolation, should be consigned to the dustbin of correctional history.

The Special Handling Unit was the subject of specific recommendations by the Parliamentary Sub-committee of the Standing Committee on Justice and Human Rights charged with the Five Year Review of the CCRA. In its report, A Work in Progress, the Sub-committee addressed the special nature of imprisonment in the SHU and the argument raised by a group of Quebec lawyers involved in carceral law that the CCRA does not provide a legal foundation for the establishment and operation of the SHU.

They argue that there is no basis for placing inmates in the Special Handling Unit since the Act does not provide for anything beyond maximum-security classification. Alternatively, they argue, if the Special Handling Unit is a form of administrative segregation, it does not operate in a manner consistent with the relevant provisions of the Act allowing for the warden or a delegate to make the initial administrative segregation decision.

Although it is not necessary to accept the argument set out by the Association, it has at least brought to the Sub-committee's attention, the presence of some uncertainty as to the basis in law of the Special Handling Unit and the review process now in place. Having visited the Special Handling Unit, maximum-security institutions, and a number of segregation units, the Sub-committee can say with certainty that the former unit is on a different level of magnitude than the others. The security precautions are strict, with the consequence that inmate contact with others is even more constrained than in these other types of facilities. The inmate population is a difficult one, posing a unique challenge to those who have to work with it on a daily basis. The physical layout of the Special Handling Unit is unique, having no parallel elsewhere among federal correctional facilities. ( A Work in Progress , paras. 5.50 - 5.51)

The Sub-committee concluded that the palpable distinction between the regime in the Special Handling Unit, and the clear difference between the definition of a maximum security prisoner and a "dangerous" prisoner qualifying for admission to the unit, justified "the development of a new security classification level to recognize the reality of the Special Handling Unit". (p.52) The Sub-committee therefore recommended that the CCRA be amended to add a new level of security to be known as "special security" and that the Regulations also be amended to define that new level of security classification.

The Sub-committee also addressed the adequacy of the transfer, review and monitoring processes applicable to the day to day operations of the SHU. Here again the Sub-committee recommended that the Act and Regulations should make explicit provisions for these matters. In the words of the Committee:

This would have the effect of increasing the visibility of the unit and provide another assurance that it is constituted and functions in ways consistent with the rule of law, the duty to act fairly, and the residual rights of inmates recognized in the Act. (at para. 5.57 )

In the context of this proposal the Sub-committee addressed the role of the National Review Committee:

To provide the Committee with a high degree of credibility and an assurance that it will carry out it's functions in a thorough, fair and unbiased way, it should draw some of its membership from experienced people from outside the Correctional Service. ( at para. 5.58 )

In its October 2000 response to the Sub-committee's report and its recommendations, the government had this to say:

In response to the Committee's recommendation, the policy set out in the Commissioner's Directives will be reviewed to ensure that necessary safeguards are clearly defined. While it does not appear necessary to make further legal provisions for the Special Handling Unit, the government intends to take action on the Committee's recommendation for external representation on the Special Handling Unit National Review Committee. Further openness and accountability is an effective means to ensure administrative fairness. (Government Response to the Report of the Sub-committee on Corrections and Conditional Release Act, October 2000, p.19)

As promised, the Correctional Service did move to amend the Commissioner's Directives on the Special Handling Unit. However, the February 2001 amendment, far from responding to the spirit of the Sub-committee's recommendation, moved in the opposite direction. Under the new policy the final decision-making authority placements in the SHU (following the prisoner's assessment) and transfers from the SHU are now made by the Senior Deputy Commissioner and the National Review Committee has been renamed the SHU Advisory Committee, with a mandate to review individual cases and provide recommendations to the Senior Deputy Commissioner.

In commenting on this policy change in his Annual Report for 2000-2001, the Correctional Investigator criticized the new policy as a regression inconsistent with the recommendation of the Parliamentary Sub-committee. As the CI pointed out "the service in 1996, in response to concerns raised with the fairness and objectivity of SHU decision-making ordered their policy to afford offenders the right to appear before the decision-making authority. The recent policy change shifting the decision-making authority to the Senior Deputy Commissioner does not provide the offender with the right to make representations directly to the decision-maker, nor does it allow for outside representation on the decision-making body" ( Annual Report of the Correctional Investigator, 2000-2001 [Ottawa: Minister of Public Works and Government Services, Canada, 2000] p.7).

The Service responded to this criticism stating:

The principle of administrative fairness remains in place as offenders may request to be personally interviewed by two members of the NRC prior to a decision being taken, and/or may provide written submissions to the NRC on this matter.The results of the interview by NRC members and any other submissions are shared and considered by the SDC in making decisions The issue of outside representation on the National Review Committee will be examined in the near future along with other needed policy changes. As part of our ongoing efforts to make SHU hearings more open and transparent Citizen Advisory Committee (CAC) members regularly participate in the reviews and are free to participate in the discussions. (Annual Report 2000-2001 pp.7-8)

The Correctional Investigator in addressing the adequacy of this response, commented:

In addition to my concerns with the provision of administrative fairness, I have questions about the appropriateness of involving CAC members in this process. The policy on Citizen Advisory Committee's does not currently include within their mandate the review of individual offender cases or access to confidential or personal information without the individual's consent. (Annual Report, p.8)

As with the government's response to the Parliamentary Sub-committee's recommendations on independent adjudication for segregation decisions, its response to the recommendations on enhancing the fairness of the SHU process bears all the hallmarks of a resistant and defensive corporate culture identified by Madame Justice Arbour.

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