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There was another important thread in the institutional perspective. Mr. Dick told me that both he and the warden were extremely concerned about the implications of legitimizing self-defence in these circumstances. Hughie MacDonald's was the third such acquittal. From the institution's perspective, this was sending the wrong message to the population: that is, if you solved problems with violence, you had a good chance of being acquitted of any criminal charges. I reminded Mr. Dick that Mr. MacDonald's lawyer, John Conroy, had even before the trial filed a habeas corpus challenging Kent Institution's decision to keep Mr. MacDonald in segregation, and that he would certainly bring that application on for a hearing if the institution kept Mr. MacDonald in segregation or transferred him to the Special Handling Unit. I offered my opinion that such an application would likely be successful and that the court would order Hughie MacDonald's release from segregation. Dave Dick commented, "There are some cases which you have to fight in court even if you know that you might lose. And this is one of them." Later that afternoon I spoke with Wayne Culbert, the current IPSO. He too was concerned about the power of the precedent in the MacDonald case and the implications of not proceeding with the SHU package: "He killed a guy in front of everybody. That's a fact, self-defence or not."

What was missing from both Mr. Dick's and Mr. Culbert's analyses was an understanding of the legal basis for self-defence. For Mr. Culbert, the public nature of the killing was the most significant factor, overshadowing the legal principle that a killing in self-defence, whether committed publicly or privately, is a justified homicide and not criminally or even morally culpable. In Mr. Dick's case, he misunderstood self-defence to be based only upon what Hughie MacDonald himself had believed necessary to save his life. Yet as Mr. Justice Singh had explained to the jury, self-defence requires that there be reasonable grounds, as assessed by the jury, to believe both that your life is in danger and that killing is the only way to avoid death or serious bodily harm. The law therefore has a built-in safeguard that prevents the defence from being advanced by someone who simply believes his life is in danger.

The difference between the institutional perspective and the legal perspective in this case could not have been more dramatic. From a legal perspective, Hughie MacDonald was justified in killing Gary Allen, and his act deserved no legal censure. From the institutional perspective, his actions represented "criminal thinking," standing in need of both censure and correction. The censure, which would take the form of segregation and a transfer to the Special Handling Unit, was intended to send a strong message to other prisoners. The correction, designed to reshape the prisoner's "warped" thinking, would be the programming of anywhere from one to four years in the Special Handling Unit. The conflict between these two perspectives can be expressed in this way. A prisoner who defends himself by using deadly force where he believes, on reasonable grounds, that he is facing a threat of death or serious bodily harm, is acting within his legal rights and responsibilities as a citizen of Canada under the Criminal Code of Canada. Those same circumstances, which entitle him to a finding of not guilty of criminal culpability, subject him, as a prisoner of Canada, to a finding that he is among the most dangerous of men and thus deserving of the most severe and restrictive form of imprisonment in the Canadian correctional system.

Is there any view of corrections that could justify exculpation under the Criminal Code and condemnation under the penitentiary code? There are situations in which prisoners, while acting within their legal rights and responsibilities as Canadian citizens, nevertheless may be in breach of their obligations and responsibilities as prisoners or parolees. The myriad of rules and regulations governing the lives of prisoners, for breach of which they can be disciplined and transferred to higher security, do not typically give rise to sanctions when committed by non-prisoners. For example, except in special situations, the citizen who is not a prisoner cannot be required on pain of punishment to give a urine sample as part of a random scheme to deter the use of drugs; a prisoner can. Except under special circumstances, citizens not undergoing a sentence of imprisonment have rights of mobility that enable them to move from one part of the country to another without leave or licence of state authorities; a citizen serving a sentence of imprisonment who is in the community on parole or statutory release may be subject to restrictions on mobility, so that the otherwise lawful act of driving from one place to another can be the subject of disciplinary action, including the return to prison, if that act is done without the permission of a parole officer. In both examples, the special legal regime governing the lives of prisoners and those on parole is justified by the principle that the control and correction of those subject to sentences of imprisonment require additional restrictions on freedom and liberty -- in the one case to control drug use within the volatile environment of a prison, and in the other to facilitate the supervision of parolees.

In such cases, there is a coherent theory for the special restrictions and obligations placed upon prisoners and parolees. In Hughie MacDonald's case, what coherent theory would justify limiting the right of a prisoner to act in self-defence in the face of a threat to his life? There is nothing in the legal regime governing prisons or prisoners that restricts access to defences and justifications under the Criminal Code. The fact that the violent environment of maximum security prisons is more likely to give rise to threats of bodily harm is hardly sufficient basis to limit a prisoner's right to resort to justified self-defence. Indeed, the argument is compelling that, if maximum security is an environment which, more so than any other, generates violent threats and actions, it is essential that prisoners required to live in that environment should be able to act in self-defence, within the constraints of the law. To limit the right of prisoners to resort to self-defence would be to withdraw the protection of the law precisely at the point where that protection is most relevant and necessary.

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