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Divisional instructions and directives describe the SHU as a facility for prisoners who have been identified as ‘particularly dangerous.’ The pre-December 1980 directive defined such a prisoner as ‘one, who, while under sentence or in custody, demonstrates aggressive behaviour which poses a threat to staff, inmates or other persons. Such conduct includes the commission of, and attempts to commit, hostage taking or any act resulting in death or the infliction of serious bodily harm [emphasis added].’61

The divisional instruction defined such conduct as including abduction, hostage-taking, or forcible confinement; serious incidents of violence; escape or attempted escape involving violence; and conviction for the murder of a peace officer while in custody or at large.62 The divisional instruction also provided that prisoners shall not be transferred to the SHU on the ground of suspicion alone but ‘only as a result of the actual demonstration of agressiveness or violent behaviour. ‘63

As a result of the introduction of the dangerous-inmate policy, the definition of a ‘particularly dangerous inmate’ was broadened. The current definition is:

one whose documented actions or demonstrated intentions while in custody in any jurisdiction, or under surveillance, constitute a persistent and serious threat to staff, inmates or other persons. Such conduct includes but is not limited to, one or more of the following:

(a) abduction, hostage-taking, forcible confinement or attempts;
(b) serving incidents of violence;
(c) escape or attempted or planned escape with violence;
(d) conviction for the murder of a peace officer, inmate or other person while under sentence;
(e) the manufacture, possession, introduction or attempted introduction into an institution of firearms, ammunition, high explosives or any offensive wea pon, as defined in the Criminal Code.
(f) incitement or conspiracy to kill or riot; and
(g) substantiated serious threats against the life of a staff member, inmate or other person.64

The new directive reiterates that prisoners shall not be transferred to SHU on suspicion alone; but whereas before December 1980 ‘the actual demonstration of agressiveness or violent behaviour’ was required for a transfer, the new directive specifies only that ‘reasonable and probable grounds for believing an inmate intends or is likely to commit a violent or dangerous act must be supported by documentation.’65 The purpose of the broader wording as explained by the solicitor-general was ‘to include inmates now recognized as posing serious threats so that they will be segregated before not after acts of violence.66 The new policy was de- scribed by the deputy commissioner (security) as ‘pro-active’ rather than ‘reactive.’67

The commissioner’s directives and divisional instruction together set out a procedure for admission, review, and transfer to and from an SHU and in broad terms identify the nature of the program. Under this framework a prisoner who is viewed by the warden of the institution in which he is confined as meeting the SHU admission criteria must first be placed in administrative segregation under section 2.30(I)(a), now Section 40(1). The warden’s recommendation for transfer to an SHU must then be reviewed by the Regional Transfer Board and the regional director general before being considered by the National SHU Review Committee. This committee, which is the de facto decision-making body for transfer to and release from SHUs, consists of the deputy commissioner (security), the deputy commissioner (offender programs), the director-general (medical services), and senior regional representatives from the receiving and sending regions. The chairman is the deputy commissioner (security), who is officially the person to whom the authority to transfer prisoners into and out of SHU is delegated.68 There is nowhere any provision requiring a hearing at which the prisoner can hear the case against him or make any representations on his own behalf. The new divisional instruction pro- vides only that the warden, before forwarding his recommendation for transfer to an SHU, shall notify the prisoner in writing of the proposed action and the prisoner shall be given the opportunity to reply in writing within three days. The prisoner’s written response then accompanies the warden’s recommendation.69

We can assess the nature of the decision-making process leading to the admission of a prisoner to SHU by looking at two cases. The first is currently the subject of litigation and, like the Martineau case, will ultmately be decided by the Supreme Court of Canada. The case of Robert Miller arose out of the riot at Matsqui Medium Security Institution inJune 1981. As a result of the riot and ensuing fire, the main cell block was extensively damaged. On 5 June Miller, along with a number of other prisoners, was placed in administrative segregation in Matsqui. On 11 July he was transferred to Kent Maximum Security Institution where he was again placed in segregation. No disciplinary charges were laid against Miller. On 23 July Miller was transferred to Millhaven and placed over- night in segregation. The next day he was transferred to an induction range and informed that he would be going into the general prison popula- tion. On 29 July Miller was escorted from the induction range and taken to the SHU. He was told by the officer in charge of the unit that he could expect to remain there for two years. No written or oral information about the reason for his transfer was given to Miller prior to his confinement in the SHU. Several weeks later, he received a letter from the chairman of the National SHU Review Committee explaining that his confinement in the SHU was authorized by reason of his being ‘an active participant in a riot.’ He was not advised of the evidence alleged to exist against him. In October 1981 he appeared before the National SHU Review Committee and was informed of his tentative transfer dates to phases three and four. Again, he was given no details concerning the evidence against him. After this appearance before the review committee the other prisoners who were alleged to have been involved in the Matsqui riot and who were transferred to SHU at the same time as Miller was, were charged with criminal offences arising from the riot. Miller was not charged with any criminal offence.

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