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March 31-April 8 -- The Sixty-Day Review -- "Some Little Things"

On March 31, the same day I delivered my rebuttal to Warden Gallagher, Gary Weaver received a Sharing of Information document advising him that his case would be reviewed by the Segregation Review Board on April 8. He was also given the results of his sixty-day regional review. This review had been conducted by Bob Lusk, Regional Oversight Co-ordinator for Administrative Segregation. This was the regional oversight mechanism the Commissioner of Corrections had suggested was a sufficient alternative mechanism to independent adjudication to ensure compliance with the law. Mr. Lusk's review had been completed on March 30. Yet Mr. Weaver had not been notified that this review would take place; he was not asked to present any submissions, nor was he given the opportunity to appear in person. According to the new procedures, the review was done electronically, using the file maintained by the Offender Management System. Mr. Lusk's decision was as follows:

Mr. Weaver is a suspect in the stabbing of another offender at William Head Institution. The assault was serious and the victim required extensive hospitalization before he could be spoken to. The police investigation and interviews of other witnesses continue while he is isolated from the general population. Additional information and determination of criminal charges will be examined prior to any security classification review or transfer actions. Administrative Segregation is justified. (Regional Review of Offender's Segregated Status, March 30, 1999)

Mr. Lusk's decision makes no reference to the results of the police investigation referred to in Ms. Hronek's assessment in the involuntary transfer package. Mr. Lusk states that "interviews of other witnesses continue while he [Mr. Weaver] is isolated from the general population," yet police had already completed their interviews and had informed the institution that, for the purposes of their ongoing investigation, it was not necessary that Mr. Weaver be maintained in administrative segregation. Had Mr. Weaver been given an opportunity to present his case before Mr. Lusk, he could have brought these facts to his attention, along with the other evidence that supported his innocence. This evidence could have been taken into account by Mr. Lusk in conducting his regional review of the justification for Mr. Weaver's continued segregation. As it was, the new "enhanced" regional review process provided no more protection for Gary Weaver than the institutional reviews.

On April 8, 1999, Mr. Weaver appeared before the Segregation Review Board for his second thirty-day review. The Board was chaired by Unit Manager Cawsey. At the outset, Mr. Weaver requested that the hearing be tape-recorded so that there was an accurate record of the proceedings. His request was in accordance with the policy set out in the Administrative Segregation Handbook provided to participants, including Mr. Cawsey, at a regional legal education workshop held in January 1998. The policy states, "Hearings should be recorded on audio tape, to ensure an accurate record is available. The audio tape should be retained for at least two years" ( Administrative Segregation Handbook, December 1997, Annex A: Detailed Timelines and Procedures). According to Mr. Weaver's sworn statement, Unit Manager Cawsey rejected Mr. Weaver's request, "because basically what we are doing is some little things." Mr. Cawsey then informed Mr. Weaver that the Board had to "get some administrative stuff out of the way" and proceeded to ask him if he had received visits from Health Care and had access to showers, phone calls, and visits. When Mr. Weaver sought to raise the issue of his innocence in the assault on Mr. Caziere, arguing that therefore there was no basis for his segregation, he was advised by Mr. Cawsey, "That's for you to deal with with your lawyer." Mr. Weaver was advised that no recommendation would be made for his release from segregation until a decision was reached about his involuntary transfer to maximum security. Mr. Weaver submitted that this was unfair and that once again he was being denied the opportunity to have his case considered on its merits by the Segregation Review Board. Mr. Weaver asked if Mr. Cawsey was aware of the information that had come to light since his initial segregation, including the confirmation of his alibi and the results of the RCMP investigation. Mr. Cawsey said he was not. Mr. Weaver referred Mr. Cawsey to the rebuttal to the involuntary transfer package, submitted March 31. Mr. Cawsey said he had not seen this document. Mr. Weaver requested that Mr. Cawsey review the document, then reconvene the Segregation Review Board prior to making a recommendation regarding his segregated status. Mr. Cawsey agreed to obtain a copy of the rebuttal. If after having read it he felt there was a need to reconvene the hearing, he would do so.

Later that same day, Mr. Weaver received the written recommendation of the Segregation Review Board that he be maintained in segregation and the warden's decision accepting that recommendation. The Segregation Review Board gave no reason for its recommendation, and the warden's final decision stated that Mr. Weaver would remain in segregation until the transfer process was completed. Needless to say, the Segregation Review hearing was never reconvened.

As with the previous Segregation Review hearings of Mr. Weaver's case, the hearing on April 8 was not the hearing contemplated by the legislative framework of the CCRA and CCR Regulations, nor did it conform with any model of a fair hearing. As with the other hearings, the decision to maintain Mr. Weaver in segregation was a foregone conclusion, and the Board did not consider any of the relevant information in assessing the lawful justification for segregation under s. 31(3) of the CCRA. As both the recommendation of the Segregation Review Board and the warden's decision make clear, the segregation review process was entirely subordinated to the outcome of the involuntary transfer process. There was no independent inquiry into the lawful grounds for segregation.

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