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The institutional perspective in this case, which points to the power of the precedent in allowing prisoners to resort to violence in maximum security, and which seeks to encourage prisoners to use nonviolent ways of responding to threats, does not require a different legal regime or justify special additional responses. The legal requirement for acquittal on self-defence, a reasonable belief by the accused that it is not possible to preserve himself from harm except by the infliction of death or grievous bodily harm, permits and requires a consideration of alternatives. The essential difference between the legal and the institutional perspectives on this question is that, under the law, the reasonableness of the belief is assessed by either a judge or a jury, taking into account the special circumstances of the accused; in the institutional perspective, that determination is made by the correctional authorities, who in determining reasonableness assess not only the special circumstances of the accused but also the correctional agenda of prison administrators. From that perspective Hughie MacDonald's response is not deemed to be reasonable, because he struck out rather than going to talk to a staff member, or checking into protection, or adopting one of the other alternatives suggested by Dave Dick as a means to avoid confrontation with Gary Allen. The institutional perspective changes the legal test of self-defence so that it is viewed through the eyes of correctional authorities rather than the eyes of the prisoner.

On June 17, 1996, approximately two weeks after his acquittal, Mr. MacDonald received a letter from Warden Lusk, which read in part:

We are aware that you have been found to not be criminally responsible, by reason of self-defence, in the death of inmate Gary Allen. However, our recommendation for placement in the Special Handling Unit was based on information that we presented to you in a progress summary report dated 25 April 1994, that dealt with your ongoing institutional behaviour since 1977. We concluded at that time that placement in a Special Handling Unit was appropriate given your ongoing violent behaviour, and continuing stated belief that pre-emptive violent action is justified, and in fact your only recourse for dealing with conflict in certain situations . . . I can find no reason to conclude you are any less dangerous than at the time of our original submission. Therefore, I am not prepared to alter my original recommendation. (Letter from Warden Bob Lusk to Hugh MacDonald, Kent Institution, June 17, 1996)

Following receipt of this letter, Mr. MacDonald's lawyer, John Conroy, set down the habeas corpus application for ahearing in the B.C. Supreme Court. In a decision dated August 21, 1996, Mr. Justice Wilson ruled that Mr. MacDonald's detention in segregation was unlawful and that the decision to transfer him to the Special Handling Unit was "patently unreasonable and could not take place." As a result, the judge ordered that Mr. MacDonald be released from segregation to the general population at Kent Institution. In arriving at his decision, Mr. Justice Wilson reviewed and rejected the institution's arguments that Mr. MacDonald, notwithstanding incarceration virtually throughout his entire adult life, had learned nothing; that he insisted on resolving his disputes by resorting to violence; that he had a vigilante attitude; and that the manifestation of that attitude, reflected in the death of Mr. Allen, rendered him an unacceptable risk in a maximum security institution.

What that submission, in my judgement, fails to recognize, is that following a jury trial, in which the defence of self-defence, under the appropriate provisions of the Criminal Code, was placed before a jury, the jury decided that Mr. MacDonald was not guilty of either murder, in any degree, or manslaughter. In the jury's verdict, I take it to be a confirmation that the force used, under the circumstances, by Mr. MacDonald, was proportionate to the risk he was facing . . . The authorities had taken the decision to bring Mr. Allen into the institution. Mr. MacDonald received information from inmates that the late Mr. Allen intended him harm. He acted in the way that he did, facing that risk, and the jury found that he was justified in doing so.

I think the majority reasons in Dridic v. The Queen (1985) 19 C.C.C. (3d) 289, contain the principle governing my disposition of this aspect of this case. Mr. Justice Lamer . . . writing for the majority [on the issue of the legal effect of an acquittal in subsequent criminal proceedings] said:

. . . It does mean that any issue, the resolution of which had to be in favour of the accused as a prerequisite to the acquittal, is irrevocably deemed to have been found conclusively in favour of the accused.

[Counsel for the warden] has not persuaded me that that test is not applicable in this case. I agree with her that the issue for the jury was: was Mr. MacDonald guilty or not guilty of the murder or manslaughter of the late Mr. Allen?, while the issue for resolution by the warden is: is Mr. MacDonald a risk which cannot be managed at a maximum security institution such as Kent? Or to put it another way: is Mr. MacDonald such a dangerous offender that special handling is required?

In my opinion that reasoning proceeds from the basis that Mr. MacDonald did, as the warden appears to have understood when he made his initial determination, resolve in his mind that he would bring an end to the apparent threat from Mr. Allen by arming himself with a knife, running up to Mr. Allen in the courtyard in broad daylight, subject to video camera surveillance, in the presence of other inmates and guards, and repeatedly stab him.

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