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Although the treatment of Mr. MacPherson arose in a provincial jail system, their recitation has resonance within the Correctional Service of Canada. As I have described in the chapter on the Special Handling Units, in many of my interviews with prisoners who have served time in these units, I heard accounts of prisoners being hog-tied, hand-cuffed to their beds and being left in that state for hours. However, the remedy envisaged by Madam Justice Arbour and judicially recognized by Mr. Justice McLellan, should not be limited to such cases of physical mistreatment.

Let us consider how the remedy envisaged by Madam Justice Arbour might apply to some of the case studies I have documented in earlier parts of this book, in which prisoners were kept in segregation or transferred to higher security in violation of the law. A judicial remedy ordering a release from segregation or a return to lower security would not sufficiently respond to the deprivation of liberty inflicted, and in the few cases where prisoners have filed civil lawsuits claiming damages for wrongful confinement, the awards have usually been derisory, giving little incentive to prisoners and even less to their lawyers. Hence, in cases like Donnie Oag's and Hughie MacDonald's, where unlawful segregation continued not only for days or months but for years, the just and appropriate remedy would be one also measured in the currency of time. For Mr. Oag, the appropriate remedy would have been to accelerate his statutory release. Since he was released straight to the street from segregation without the benefit of any programs, it could hardly be argued that his release at an earlier point would have aggravated any risk he posed.

Because Mr. MacDonald was serving a life sentence with no fixed expiry date, his remedy would have to be more flexibly conceived. There are a number of possibilities. At the time he was charged with the murder of Gary Allen, Mr. MacDonald was working towards a return to the Regional Health Centre to participate in the Violent Offender Program. Completion of this program would have been an important factor in the judicial review to which he was entitled after serving fifteen years of his sentence for first-degree murder. By virtue of his detainment in segregation, that program opportunity was denied him, and his fifteen-year review was delayed. Mr. Justice Wilson, in ordering Mr. MacDonald's release from segregation in August 1996, sought to address this by adding at the end of his judgement, "I would certainly encourage the Service to endeavour with all deliberate speed to get Mr. MacDonald to the Regional Health Centre" ( MacDonald v. Warden of Kent Institution, August 21, 1996, Vancouver cc951235(B.C.S.C.)). That judicial encouragement was of no avail; Mr. MacDonald remained at Kent until July 1998, and even then he was transferred not to the Regional Health Centre but to Matsqui. It was not until October, 2001 that he waas transferred to the RHC. Since he had served twenty-one years of his sentence by then, his fifteen-year review was rendered meaningless. Under an Arbour-type remedy, the court could order that the CSC give Mr. MacDonald a high priority for placement in the Violent Offender Program. Another possibility, in Mr. MacDonald's case and that of other "lifers" would be to provide for a statutory adjustment to potential parole eligibility dates. Although Madam Justice Arbour did not address this issue in detail, she did suggest that the law could require Parole Boards to consider legally harsh conditions as a factor weighing in favour of an earlier release.

Consider also how an Arbour-type remedy could have availed Gary Weaver. The month before Mr. Weaver was segregated, he had been approved by the National Parole Board for twice-monthly temporary absence passes. As a result of his illegal segregation for eighty days, he was denied the opportunity to participate in five of these passes. Even though he was released in late April of 1999, it was mid-June before he enjoyed another pass. An appropriate remedy in this case could include the provision of additional passes. Mr. Weaver might also have been given priority for placement in other programs. Prior to his segregation, Mr. Weaver's case management officer had recommended him for a work-release program. Yet despite continued support from his CMO following his release from segregation, Mr. Weaver was told he would not be eligible for the program for another six months, during which time he should demonstrate good behaviour. That decision completely disregarded the fact that he had spent almost three months in segregation without just cause. A judicial remedy could be framed to prevent such further discriminatory treatment.

It is important to recognize that Madam Justice Arbour did not see the judicial remedy as sufficient in itself to ensure compliance with the Rule of Law. Her proposals for a grievance process subject to binding arbitration and an administrative segregation process subject to independent adjudication were other vital components of creating a correctional culture driven by the Rule of Law rather than by expedience. As she made clear, it was her scepticism that these other measures would be accepted by the CSC that prompted her proposal for a judicial remedy. However, even if these other reforms were implemented, the existence of a judicial remedy along the lines of the Arbour model would provide the necessary underpinning to ensure compliance with the law. The judicial remedy is designed to buttress, not displace, other administrative processes that seek to institutionalize fairness and respect for the law and would permit a full measure of restitution for significant harm not addressed or redressed by these other processes.

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Twelve years after Justice Arbours recommendation for a new judicial remedy it still remains under study by the Department of Justice