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The Gary Weaver Case and Independent Adjudication

Had Gary Weaver's habeas corpus petition gone before the courts, I intended to raise the argument that independent adjudication of segregation decisions was an essential element of fairness and a principle of fundamental justice within s. 7 of the Charter. The facts suggested that Warden Gallagher had at an early point determined Gary Weaver was involved in the assault on Mr. Caziere, and Mr. Weaver was no longer welcome at William Head. Nothing revealed by the unfolding investigation was able to challenge that belief. Although Warden Gallagher never interviewed Mr. Weaver or any of the other material witnesses, he stood firm, basing his belief on "reliable sources" without ever stating why he believed them to be reliable. He maintained that belief in the face of the opinions of two highly experienced RCMP investigators who had interviewed Mr. Weaver and found him credible, and who had interviewed Mr. Caziere and found his account lacking in credibility. What better demonstration of a decision-maker who would be unable to review the matter in an impartial and objective manner?

In March 1999, I had appeared on behalf of the Canadian Bar Association before the Sub-committee of the House of Commons Committee on Justice and Human Rights conducting the Five-Year Review of the CCRA. The centrepiece of my presentation was the importance of independent adjudication. I advised the Sub-committee of the Bar's position, in light of the recommendations of Madam Justice Arbour and the Commissioner's failure to implement the experiment on independent adjudication as recommended by the Task Force on Segregation, that the CCRA be amended to provide for independent adjudication of administrative segregation. I reviewed the facts of Gary Weaver's case and suggested that if I had an opportunity to present my full argument, I was confident I could persuade the MPs on the Sub-committee -- even those who had publicly expressed antipathy to the cause of prisoners' rights -- that under the CCRA there were no lawful grounds to segregate Mr. Weaver. Yet under the existing provisions, I had no impartial decision-maker to whom I could make my argument.

Gary Weaver's case also speaks clearly to the need of independent adjudication for involuntary transfer decisions. Consider the facts. Mr. Weaver's Institutional Parole Officer was instructed by the warden to prepare a transfer package supporting his reclassification to maximum security before the RCMP investigation was complete, although preliminary results supported his innocence of any wrongdoing. In her extensive documentation she specifically stated, "The RCMP officer leading the investigation into the assault on inmate Caziere does not believe that Gary Weaver was involved." She concluded, "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." Notwithstanding these statements, Unit Manager Callahan supported the transfer, making no reference to the RCMP's opinions.

Under the provisions of the CCRA, Mr. Weaver had the right to prepare a written rebuttal. Consequently, I, as his legal counsel, presented a twenty-five-page argument. After due deliberation, the warden accepted Mr. Callahan's recommendation and dismissed my rebuttal. His transfer recommendation and Mr. Weaver's rebuttal were then sent to Regional Headquarters for a final decision.

Because the recommendation was withdrawn on the eve of the lawsuit on the advice of the Department of Justice, Regional Headquarters never had to make that final decision. Based on past experience, however, for example the cases of Mr. Storry, Mr. Fitzgerald and Mr. Macdonald, it is likely that the warden's decision would have been upheld, leaving Mr. Weaver to initiate a legal challenge. Both Mr. Fitzgerald and Mr. Storry were successful in their legal challenges, yet in both cases it took two years for the wheels of justice to grind to obtain this remedy.

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