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A Report Card on Legal Compliance

There is little doubt that Gary Weaver was right. Without the filing of the habeas corpus petition, he would have remained in segregation and, depending on Regional Headquarters' response to my rebuttal, would likely have been transferred back to Kent Institution. The Department of Justice's advice to Warden Gallagher was likely based on their assessment that if the matter proceeded to court, a judge would order Mr. Weaver's release from segregation. From their perspective, releasing Mr. Weaver before the habeas corpus petition could be heard would avert an embarrassing precedent documenting the illegality of his segregation.

The segregation and attempted involuntary transfer of Gary Weaver show clearly the faultlines identified by the Arbour Report, the Task Force on Segregation's report, and my own analysis of correctional practices. Moreover, since his segregation occurred two years after the Commissioner of Corrections had received the recommendations of the Task Force on Segregation and a year after correctional officials, including those at William Head, participated in a workshop specifically addressing the legal requirements of segregation review, it serves as a report card on how well, in the absence of independent adjudication, the CSC can ensure that its officials comply with the law.

The segregation of Gary Weaver involved serial violations of the Charter and the CCRA. The preliminary assessment of the Task Force on Segregation had been that "staff members and managers demonstrated a casual attitude towards the rigorous requirements of the law, both in terms of their understanding of the law and their sense of being bound by it" (Task Force Reprort at12). These words describe exactly the behaviour of staff members and managers at William Head. Staff violated Mr. Weaver's rights under the Charter and CCR Regulations when they denied him his legal right to contact a lawyer without delay during his first four hours in segregation. Only through the intervention of the RCMP was he able to exercise his right. Correctional staff violated s. 37 of the CCRA in denying Mr. Weaver access to his spiritual advisor during his first week in segregation; correctional staff also violated s. 37 by not providing Mr. Weaver with any of his personal cell effects until forty-five days after he was placed in segregation.

Correctional managers at William Head failed to conduct segregation reviews in accordance with the CCRA. The written Sharing of Information given to Gary Weaver before his five-day, thirty-day, and sixty-day reviews contained none of the information relevant to a consideration of whether it was reasonable to believe that lawful grounds existed for his segregation. The inadequacy of the sharing process at William Head reflected pre-Segregation Task Force practices at both Kent and Matsqui prior to the Task Force on Segregation. As I have described in Sector 4, there have been significant improvements in the sharing of information process at Kent; by comparison, at William Head managers were not even aware that their processes failed to comply with the law. The conduct of the five-day, thirty-day and sixty-day reviews also demonstrated an abject failure to fulfil the legislative mandate of the CCRA. There was no attempt at any of these reviews to relate the information and evidence to the legal criteria for segregation; the Chairperson of the Segregation Review Board in each case announced at the beginning of the hearing that Mr. Weaver would be maintained in segregation. No consideration was given to the information Mr. Weaver attempted to provide to the Board, drawn from the RCMP's and the IPSOs' investigations, which pointed to his innocence of any wrongdoing. Similarly, the decisions of the warden of William Head that Mr. Weaver be maintained in segregation were made without reference to the legal standards of s. 31(3). There was no attempt to justify how Mr. Weaver's presence in the general population would interfere with an ongoing investigation; at the five-day review the mere existence of the investigation was seen as sufficient to justify segregation, and at the thirty- and sixty-day reviews, the fact that Mr. Weaver was being considered for involuntary transfer -- not a legally sufficient basis for segregation under the CCRA -- was cited.

In my legal brief, I submitted that the warden of William Head had committed the same error identified by Mr. Justice Wilson in Hughie Macdonald's case, described earlier in this book in the chapter "Life and Death of the Electric Man." At Mr. Macdonald's segregation reviews, he was told month after month that he would be maintained in segregation on the basis that he had been approved for transfer to the Special Handling Unit. In that case, Mr. Justice Wilson described the flaw in the process:

I have come to the conclusion . . . that those reviews were not, as I appreciate that notion, reviews, nor in my opinion, were they reviews as anticipated by Parliament in enacting the legislation. In my view, before any of these meetings with Mr. Macdonald took place, the respondents knew that they had already reached a decision, and the meetings were simply pro forma purported compliance with the statutory and regulatory mandates. The decision already having been taken, the meetings were, in my view, a waste of time. (Macdonald v. The Warden of Kent Institution, Reasons for Judgement of Mr. Justice Wilson, August 21, 1996 [B.C.S.C.])

Similarly, Gary Weaver's segregation review hearings were not reviews as anticipated by Parliament in enacting the CCRA. In the words of Mr. Justice Wilson, "the decision already having already been taken, the meetings were . . . a waste of time" and constituted unfair procedure.

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