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February 8 -- Return to Segregation

Shortly after lunch on Monday, February 8, Mr. Weaver was in the shower in his house in F-7 when three guards came to tell him he was being returned to segregation. He was escorted to the segregation unit and served with a second Segregation Placement Notice virtually identical to the one he had received two days previously. Even though he had been in the general population for over thirty-six hours since his release from segregation on Saturday and had in no way interfered with the investigation into the assault on Mr. Caziere, he was given no further reasons to explain why the institution now believed his presence in the population would interfere with that investigation. Mr. Weaver was advised that the five-day segregation review required by the Corrections and Conditional Release Act would be held on February 15.

Mr. Weaver contacted me to ask if I would represent him in challenging the basis for his segregation. Up to that point, my policy while conducting research was that I would offer advice to prisoners and refer them to other lawyers but would not undertake representation. I had been given complete access to files and been permitted to attend meetings and conduct interviews with staff on the basis that the information was for research purposes and would not be used in the legal representation of prisoners in disputes with the institution. The only exceptions to that rule had been a number of cases involving representation for the purposes of parole, an application to reopen a murder conviction on the basis that the prisoner was wrongly convicted, and an appeal against a Canadian Metis prisoner's extradition to Alabama to serve a 120-year sentence for attempted extortion. Gary Weaver was now asking me to represent him in a full advocacy role challenging the basis for his segregation. I agreed to do this for two reasons. First, the stakes could not have been higher. Just three days after going out on his first pass following ten years of imprisonment, Mr. Weaver was facing segregation on the basis of an accusation that could send him back to maximum security or the Special Handling Unit, with no prospect for release from prison for probably another decade. On the phone he swore he had not been involved in the assault. Second, because I had not conducted research at William Head Institution or interviewed any staff or administrators, I would not, in my advocacy, be making use of material gathered in the course of research.

As Gary Weaver's lawyer, the first thing I did was to contact the warden and the IPSOs at William Head to find out why Mr. Weaver was believed to be a suspect in the assault on Mr. Caziere. I was told there was a "concern" with the credibility of his alibi. Even though Lama Margaret had sent a letter to the warden confirming that she and Mr. Weaver had been on the phone during the time period he specified, the administration felt she was mistaken about the time frame, and there was the inference that she might be providing Mr. Weaver with an alibi. There was similar scepticism about the corroboration offered by other prisoners who said they were in Mr. Weaver's presence after 9:30 p.m.

The most obvious way to corroborate Mr. Weaver's account of his telephone call to Lama Margaret was to obtain the official Millennium telephone records. The Millennium System had been introduced, over prisoners' objections and after an unsuccessful legal challenge, to enable the CSC to track phone calls made by prisoners; the CSC claimed this would prevent prisoners from using the phone system to make threatening or indecent calls, engage in telephone fraud, or facilitate drug deals. The system allowed correctional authorities to pinpoint any call made on the system to a specific phone and, through the use of PIN numbers, to particular prisoners. When I asked Warden Gallagher to provide me with copies of the Millennium phone records on the evening in question using Mr. Weaver's PIN, I was informed that for technical reasons it was not possible to determine the length of time Mr. Weaver had been on the phone with Lama Margaret. Richard Montminy at CSC National Headquarters, the "guru" of the Millennium System, subsequently advised me that the system was specifically set up to enable a call made on any institutional phone to be traced, identifying the number called, the time the call began, and the length of time it lasted. All of this could be accessed through the prisoner's PIN. Since Warden Gallagher still did not believe it was possible to do this sort of tracing, Mr. Montminy, with Mr. Weaver's consent, accessed the Millennium System and provided the warden and me with a detailed telephone log.

Before obtaining Mr. Montminy's assistance, I had asked Gary Weaver to review for me his phone call with Lama Margaret on the evening of February 5. He said the call had begun around 8:50 p.m. and continued with a one-minute break until around 9:30. The break occurred when another prisoner's name came up in their conversation. Mr. Weaver had heard that the prisoner, who was on parole at a halfway house in Victoria, may have been suspended. He asked Lama Margaret if she would call the halfway house to see if the prisoner was still a resident there, and he simultaneously made a call to the Victoria Parole Duty Office to find out whether the prisoner had been suspended. After being told he could not get this information over the phone, Mr. Weaver redialled Lama Margaret's number and their call continued until George Storry came into the F-Unit Community Building to use the phone. Mr. Weaver told me he thought he had made all of the calls on his authorized PIN, but it was possible he might also have used an unauthorized one.

I had given Mr. Montminy both PINs, and the official log he provided corroborated Mr. Weaver's account. The log shows that Mr. Weaver phoned Lama Margaret at 20.53.23 (8:53 p.m.) and that this call lasted for eighteen minutes. At 21.12.30 (9:12 p.m.) he phoned the Victoria Parole Office, and this call lasted for forty-two seconds. At 21.13.37 (9:13 p.m.), he phoned Lama Margaret again, and this call lasted for thirteen minutes and fifty-four seconds. Mr. Weaver was therefore on the phone with Lama Margaret (except for the break at 9:12 for less than a minute), from 8:53 p.m. until almost 9:27 p.m. The Warden's response to this verification was that it still left Mr. Weaver with enough time to have taken part in the assault on Mr. Caziere. The new information would be considered by the Segregation Review Board at Mr. Weaver's five-day review, he said.

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