Not Guilty in Criminal Law, but Guilty in Prison Customary Law

Although the verdict signalled a cardinal change in Hughie MacDonald's status -- from that of a man accused of first-degree murder to one declared by a jury of his peers to be innocent of such a charge -- it was not to have the same significance with relation to his status as a prisoner. Just as the events leading up to the stabbing of Gary Allen took us deep into "the belly of the beast" of maximum security, the response of correctional authorities to the acquittal of Hughie MacDonald takes us to the heart of the difference between legal and institutional perspectives on the Rule of Law.

The videotape the Crown had played for the jury documented Mr. MacDonald being taken out of the courtyard, then being strip-searched and placed in a cell in the segregation unit. He remained in segregation from the day of the stabbing, February 22, 1994, until his trial in May 1996. Following his being charged with first-degree murder, the warden of Kent Institution recommended Mr. MacDonald's involuntary transfer to the Special Handling Unit, the highest level of security in the Canadian system. That recommendation was upheld in a decision by the Deputy Commissioner for the Pacific Region on December 20, 1994. In the end, however, the transfer was not implemented because it would interfere with the ability of Mr. MacDonald's counsel to meet with his client and prepare for the trial. By May 31, 1996, the day of his acquittal, Hughie MacDonald had been in administrative segregation for two years and three months, a total of 830 days. During that time, a decision to continue his segregation was made at each monthly meeting of the Segregation Review Board. Initially, the reason given was that Mr. MacDonald was being considered for transfer to the Special Handling Unit. Once the transfer was authorized, that authorization itself became the basis for maintaining his segregation. The written monthly notice of the review of his segregated status given to Mr. MacDonald during this period was to the following effect: "You were segregated following the assault and murder of another inmate. You are approved for the transfer to the SHU Quebec pending completion of your court proceedings. You anticipate trial issues to be concluded in May 1996." In light of his acquittal on all criminal charges, it was not unreasonable for Hughie MacDonald to expect both the reversal of the Correctional Service of Canada decision to transfer him to the SHU and his release from segregation.

The Kent Segregation Review Board met on Monday, June 3, 1996, the first working day after Hughie MacDonald's acquittal. I attended the meeting on that day as part of my ongoing research. Mr. MacDonald also attended the meeting, requesting that he be released from segregation. However, he was advised by the chairman, Mr. Lin Wallin, that he would not be released from segregation until the SHU transfer had been reviewed by both the warden and regional headquarters. Mr. Wallin also said that because the transfer was not based exclusively upon the court proceedings, Mr. MacDonald's acquittal would not necessarily result in his release from segregation.

After Mr. MacDonald left the room, I asked Mr. Wallin about the basis for his last statement, given that the transfer documents had clearly focussed on the alleged murder of Gary Allen. He responded that Mr. MacDonald had pursued Mr. Allen across the courtyard and knifed him in front of a dozen correctional officers. I pointed out that Mr. MacDonald's acquittal amounted to a finding that he was legally justified in killing Mr. Allen to defend his own life. As such, it was a justifiable homicide, not a criminal or an unlawful act.

The airing of this issue at the Segregation Review Board proved to be an early warning sign of the different interpretations that would be placed on the acquittal by institutional authorities. In the week following his acquittal, Mr. MacDonald received a letter from the warden of Kent Institution informing him that his transfer to the SHU was being reviewed and that he would be advised shortly of the results of that review. On June 13 I interviewed Mr. MacDonald in segregation, and he had not yet heard back from the warden. He was nonetheless in very good spirits, confident that he would soon be returned to the general population.

After I left the segregation unit that day I saw Dave Dick. (As outlined earlier in this chapter, Mr. Dick, in his capacity as an IPSO, had interviewed Gary Allen at the Fraser Regional Correctional Centre in February 1994, and had at that time recommended that Mr. Allen not be accepted at Kent. His subsequent memo to Deputy Warden Sexsmith prophetically stated that if Mr. Allen were released into the general population at Kent, there would be a major incident within days, if not hours, of that release. Mr. Dick had since then become Co-ordinator of Programs at Kent, and he was about to take up a new assignment as a unit manager at William Head Institution on Vancouver Island.) I asked Mr. Dick whether a decision had been made regarding Hughie MacDonald's transfer to the SHU. He said he understood meetings were in progress that day, but he was not part of the decision-making loop. When I said it was difficult to see what justification there could be for proceeding with the transfer, Mr. Dick responded by giving me what he understood to be the institutional perspective on the issues. The acquittal on the basis of self-defence represented a finding by the jury that Hughie MacDonald believed that it was a kill-or-be-killed situation. However, from the institution's perspective, there had been other options open to Mr. MacDonald, as presented in Mr. Dick's court testimony. The fact that Mr. MacDonald had resorted to a confrontation with Mr. Allen instead demonstrated something wrong with his approach to solving problems, which in turn raised questions about whether his risk was manageable in a maximum security institution.

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