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The Criteria and Process of Confinement

I have suggested that in order to understand the conditions of solitary confinement it is necessary to consider more than just the physical dimensions of confinement. Of particular importance are the process by which prisoners are placed in solitary and the process by which they are released. I have described how those who designed the original model of penitentiary discipline perceived the necessity for the regime to be governed by rules that would render accountable the hitherto unregulated discretion of the keeper and would also demonstrate to the prisoner the justice of his sentence and punishment. To ask how fair and free from arbitrariness is the process whereby prisoners are placed in and released from solitary throws us back to the original ideals of the penitentiary; yet, since fairness and freedom from arbitrariness are touchstones of legality enshrined in the Canadian Bill of Rights (and now in the Canadian Charter of Rights and Freedoms), the question provides us with a framework of inquiry relevant and essential to the continuing legitimacy of penitentiary discipline.

In the McCann case the plaintiffs gave evidence of being placed in solitary confinement without any notice of the grounds for dissociation and without any hearing at which evidence was presented against them or opportunity given for them to challenge the case against them or to make representations on their own behalf. They also testified that they had no knowledge of any monthly review such as that required by section 2.30. Jack McCann and Ralph Cochrane both testified as to the manner of their confinement in SCU in December 1972. McCann described the process in a letter written while he was still in solitary:

On December 18, 1972, we [McCann and five other prisoners] were taken from our cells and put in the Special Correction Unit. We were not told as to why this action was taken. On December 19 there were certain statements made on [a] radio station where five of our names were mentioned and some derogatory remarks and allegations were made. The following three days, various news journals ...contained statements given to them by the Director of the BC Penitentiary ...pertaining to the fact that an inmate had been found to have a certain amount of weapons in his possession and that a certain number of inmates had been put in segregation, as it was thought there was an alleged conspiracy by these inmates ...These articles were our only indication as to why we may have been segregated. On Friday afternoon, December 22, two senior staff members spoke to us individually and the only thing they said was that they were holding an investigation and asked us if we had anything to say. We were not told what the investigation was about or if any of us were supposed to be involved in any way. Later on that same day an inmate ...was put in the same tier as the rest of us. It was at this time through him that we learned that it was he who was caught with the weapons and that the rest of us were all suspected of somehow being involved with him ...By this time, although we still had not been told any thing by officials, we had no choice but to assume that it is we six to whom the articles in the news journals refer. By the manner in which these articles appeared in the newspapers, the Director was already under the assumption that the six of us had conspired to escape. This was before there was even an investigation. We adamantly deny the assumed allegation. We have now been held in segregation since December 18 without the benefit of a hearing, the laying of any charges or the production of any kind of evidence. This type of action is a denial of natural justice and to my belief, against the Canadian Bill of Rights. We are under severe mental stress not knowing what is going on and this unusual and unjust treatment amounts to conviction without trial. On Tuesday January 9, 1973, a senior staff member told (the other inmate] that the RCMP would be out to see him and that he was to be charged in outside court.44

Jack McCann and Ralph Cochrane were kept in SCU until 21 February 1973. At no time were they given a hearing or confronted with the reasons for their confinement. The sense of injustice they felt at this process can be seen not only from McCann's letter but also from the seventeen-day hunger strike which they went on over the Christmas holidays to assert their innocence and protest their detention without a hearing.

Dr. Richard Korn compared the process by which a prisoner enters the general prison society with that involved in entering SCU: 'He enters the general prison society as a result of a hearing in a court of law. The charges are specific, he has an opportunity to present his own case, to cross- examine witnesses, all of the rights and amenities that are provided under the presumption of innocence ...In general if a prisoner has had a fair trial, he will accept the process of getting to prison.'45 The process of entering administrative dissociation is bereft of these features of due process. In recounting their experiences with entering dissociation under section 2.30, all of the plaintiffs expressed their sense of injustice and of the illegitimacy of the process. Section 2.30(I)(a) authorizes dissociation on the vaguest of criteria - 'the maintenance of good order and discipline in the institution.' Since these words are no more than a restatement of the overall responsibility of the head of the institution, they really provide no guidelines or criteria for the drastic restraint placed on a prisoner's liberty by confining him in SCU. Not only are there no articulated criteria within section 2.30 against which to measure the detention or release of an SCU prisoner, but the evidence given by the director and the head of security concerning the reasons for detention and release for the plaintiffs did not reveal any consistent standards. Rather, the evidence suggested that the decision to place a man in solitary is made on the basis of rumours, hunches, and intangible feelings based on the prisoner's past reputation or his present attitude. Dr. Korn described the process of admission to and release from SCU as 'highly capricious, arbitrary and in its design and effect ...[it] is mystifying and to me fails to satisfy any human criterion of predictable process.'46

The following case studies are designed to elaborate on the nature of the process leading to and from administrative dissociation. They will provide the data against which to measure how far we have progressed in achieving the penitentiary's original goals of circumscribing the unbridled discretion of the keeper and demonstrating to prisoners the justice of carceral power.

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