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March 31 -- The Rebuttal to the Involuntary Transfer Notice

On March 31, I travelled to William Head, my fourth trip within a month, and delivered to Warden Gallagher the rebuttal to the recommendation for Gary Weaver's involuntary transfer to Kent. Accompanying the rebuttal were the affidavits of Mr. Storry and the other prisoners who swore Mr. Weaver was with them from 9:30 p.m. to around 9:40 p.m. In the rebuttal, I first set out the facts that I believed were not in dispute and asked the question, "How credible and reasonable is the allegation that Mr. Weaver was involved in the assault on Mr. Caziere?"

According to the information that I have obtained from the RCMP the attack on Mr. Caziere was well planned. They believe he was lured to the Upper G unit at an appointed time and his attackers had their faces masked and were armed with knives and a steel pipe. A number of prisoners were involved, some of them as the actual perpetrators of the assault and others may have been stationed at either end of the corridor to prevent Mr. Caziere's escape or to act as look-outs in case officers or other prisoners came by . . . It is established that Mr. Weaver was on the phone until shortly before 9:27 p.m. According to both Mr. Weaver and Mr. Storry he terminated his phone call only because Mr. Storry at that point came in to use the phone. He then attended to the mundane activity of taking his clothes out of the washer and putting them in the dryer without any hint of being in a hurry. He then left the F-Unit Community Building. Even though February 5 was a cold and windy day Mr. Weaver was dressed lightly, consistent with his making the short trip from F-7 to the Community Building and back again . . . According to Mr. Storry's Affidavit Mr. Weaver did not leave the F-Unit Community Building until after 9:29 p.m.

It is clearly established that Mr. Caziere did not arrive at the C-Unit Community Building until 9:37 p.m. Both the RCMP and IPSOs believe that in light of the extensive injuries suffered by Mr. Caziere it is likely to have taken him at least 5 minutes after he was attacked to get from the Upper G Tier to the C-Unit Building. I have myself retraced the route that Mr. Caziere would likely have taken; walking slowly, but without a knife in my back and without feeling the effects of a steel pipe over my head and a deep gash in my face and multiple cuts on my hands and arms, it took me 5 minutes to make the trip. This means that the attack on Mr. Caziere must have been completed no later than 9:32 p.m. In all likelihood it was completed before that.

For Mr. Weaver to be one of the participants in the assault on Mr. Caziere after leaving the F-7 Community Building at 9:29 p.m. he would have had to go somewhere else to pick up a mask and a weapon and make his way over to the Upper G Tier with the supreme confidence that all of the other pre-planning for the attack, including luring Mr. Caziere to the Upper G Tier and the positioning of look-outs, was in place, ready for him to perform his assigned role. Having fulfilled that role he would then have had to dispose of his mask and weapon. Since the physical evidence shows that there was a lot of blood at the scene of the crime, some of which would have likely been splashed on the assailants' clothing and hands, he would also have had to dispose of any blood-stained clothes, return to his Unit, shower and change into fresh clothes. Having done so, he would then have gone over to the C-Unit Community Building, conspicuously presenting himself to the Officers attending to Mr. Caziere, to see what state Mr. Caziere was in after the attack, having only minutes before himself participated in the attack which left a knife in Mr. Caziere's back. It is hard to imagine a scenario or theory more preposterous or more removed from any air of reality. Far from supporting a belief based on reasonable and probable grounds that Mr. Weaver was involved in the assault, it defies any such belief.

At the risk of repetition I would underline the fact that three days prior to the assault on Mr. Caziere Mr. Weaver had participated in his first temporary absence pass, representing the first time he had been outside of prison in ten years, and was eagerly awaiting his next pass at which he would be participating in a Buddhist spiritual ceremony, with the prospect of further release from imprisonment. First and foremost on his mind were the possibilities of the rest of his life outside of prison; furthest from his mind were the violence and mayhem within which he had lived much of the previous ten years. I emphasize also the fact that Mr. Weaver's conversation only ended when Mr. Storry came into the F-Unit Community Building to make his call; had he not done so, Mr. Weaver would have continued to talk to Lama Margaret and in all likelihood would have been on the phone, as was Mr. Storry, when Mr. Caziere staggered into the C-Unit Building. (Letter from Michael Jackson to Warden Gallagher, March 31, 1999)

The next part of my rebuttal addressed the institution's case against Mr. Weaver. I first reviewed the so-called "reliable information" contained in the security gist given to Mr. Weaver on February 15, to which reference was made in the transfer recommendation. I suggested that the sources were inconsistent with one another and were unsworn hearsay accounts flatly contradicted by the sworn affidavits I had gathered.

My rebuttal specifically addressed the information contained in the Security Intelligence Report dated February 26. Far from supporting the allegations against Mr. Weaver, this document further demonstrated that there were no reasonable grounds to believe he had been involved in the assault. The sources cited contradicted one another on essential issues. For example, on page 3 the report stated that Officer Heck received information "believed to be reliable" that five offenders were involved in the assault. Later on that page the report said another officer received information from a "reliable source" that three offenders were involved. On page 5, another source "known to Officer Heck" stated that four offenders were involved in the attack. Several sources said that Mr. Weaver stabbed Mr. Caziere, others that he kept watch. Yet all of these sources were uncritically cited as "reliable." There were multiple theories about the motive for the attack as well. On page 3, one source suggested that it had happened because Mr. Caziere owed three bales of tobacco; on page 5, a second source stated that Mr. Caziere was supposed to move drugs inside but failed to do so; on the same page another source "hypothesized" that the attack related to rivalry in the drug trade within William Head. Another theory, given on page 4, was that Mr. Caziere had befriended a prisoner "fingered as a rat."

My rebuttal then reviewed the results of the RCMP and IPSO investigations. I argued that both the monitoring of Mr. Weaver's telephone calls and the analysis of his letter to the warden supported the case for his innocence. In addition, every line of the RCMP investigation corroborated Mr. Weaver's innocence and provided no evidence of his involvement in the assault.

The final part of my rebuttal involved an analysis of the report prepared by Stephanie Hronek, Mr. Weaver's Institutional Parole Officer. In my discussions with her, she had made it clear she believed Mr. Weaver was not involved in the assault and there was no justification for either segregation or transfer. However, as his IPO, she had been instructed by the warden to prepare the documents to support a recommendation for transfer. In her report, using the CSC's security rating scheme, Ms. Hronek rated Mr. Weaver as a medium security prisoner, but she concluded that because of an "override factor, based upon Mr. Weaver's involvement in an assault causing serious physical harm to another inmate, he is to be rated a maximum security prisoner." Ms. Hronek set out the basis for the institution's case and compared it with the information provided by the RCMP.

Several inmate sources deemed to be reliable, implicate Mr. Weaver as one of the perpetrators in the physical attack on another inmate on 99-02-05. The police are continuing their investigation of this assault, however it will be several more weeks before their investigation will be concluded. However, the RCMP Officer leading the investigation into the assault on inmate Caziere does not believe that Gary Weaver was involved. Sergeant Brown bases his professional opinion on several facts that have arisen, i.e. that Gary Weaver was on the telephone to his Buddhist teacher when the assault is believed to have occurred, that Gary Weaver's footwear does not match any of the footprints at the scene of the attack, that none of Gary Weaver's clothes appear to have blood stains on them. Additionally Sergeant Brown has serious concerns about the truthfulness of Curtis Caziere's statement to police. In the interim, Mr. Weaver cannot be returned to the general population due to security concerns he is viewed as presenting at William Head Institution. There is a great deal of animosity that has arisen within the inmate population and by staff, as a result of the attack on inmate Caziere and the segregation of Gary Weaver. Given that the police have all but ruled out Gary Weaver as one of the perpetrators in the attack on Curtis Caziere, it would appear that the least restrictive alternative to continued placement in the Segregation Unit is Mr. Weaver's voluntary placement in another medium security environment. An involuntary transfer to Kent Institution in the face of strong police information indicating that Mr. Weaver was not involved in the assault on inmate Caziere would be regarded by this writer to be unjust. The security classification supports a medium rating but with the override factor due to the assault on another offender, a maximum rating is achieved. (Notice of Involuntary Transfer Recommendation, William Head Instution, March 15, 1999)

I argued in my rebuttal that Ms. Hronek's conclusions demonstrated the fatal flaw in the recommendation for Mr. Weaver's transfer to Kent.

How can it be argued that a prisoner who on every scale is rated as a medium security prisoner, can be considered maximum security on the basis of an "over-ride" factor that assumes his involvement in an assault on another prisoner where, in the very same paragraph, it is stated that the RCMP have all but ruled out his participation in this assault and that in light of this it would be "unjust" to transfer him to a maximum security institution. Not only would it be, as Ms. Hronek rightfully states, "unjust," it would be a violation of fundamental principles of justice contrary to Section 7 of the Canadian Charter of Rights and Freedoms, and inconsistent with the explicit provisions of the CCRA regarding security classification.

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