Nevertheless, it is still possible to assess whether the six-month review meets minimal standards of fairness. As I have mentioned, Mr J. U. Marcel Sauvé, the deputy commissioner of security, states that the review committee ‘conducts its interviews in a similar manner to a parole hearing.’95 The prisoners I interviewed all felt that their appearance before the National Review Committee was severely hampered by their not knowing what was contained in the monthly reviews or the nature of the assessments pre- pared by classification and psychological staff. The same criticisms have also been levelled against the way in which parole hearings are conducted. In essence, they aver that the prisoner is given no notice of the case with which he has to contend. However, recent amendments to the parole regulations have sought to deal with these points by requiring that an applicant for parole be provided with all relevant information in the possession of the board.96 In particular, parole applicants are given a copy of the assessment prepared by their case-management team, which is made up of representatives from the parole and institutional staffs. While there are important exceptions to the information given to parole applicants, there has at least been recognition by the parole authorities that fairness requires some advance disclosure of the information on which the parole board will base its decision. There is no similar awareness of this essential tenet of the doctrine of fairness in the penitentiary authorities’ review of SHU cases. Prisoners are given no written or oral information in advance of the hearing. They are not shown the monthly review reports, nor are they present during the part of the hearing in which the vital information about their conduct and behaviour in SHU is discussed. The divisional instruction specifically provides that prisoners are not to be informed of the nature of the recommendations made to the National Review Committee by institutional staff.97 Prisoners’ participation, therefore, is ineffective in that the prisoner cannot challenge or reinterpret the evidence on which the committee will base its decision. Furthermore, proceeding with the parole analogy, the new parole regulations permit the presence of an assistant (who may be a lawyer) at the parole hearing.98 Prisoners appearing before the National Review Committee are not permitted to have the assistance of anyone.

The failure to disclose the institutional staff’s evaluation of the prisoner has serious implications in regard to the underlying model of the special handling unit as set out in the Vantour-McReynolds Report. According to that model, an integral purpose of the review was to ‘enable the inmate to be aware of his progress. Since progress for each phase depends upon the management team’s perception of inmate behaviour, the inmate must be made aware of their perception and evaluation.’99 The practice of non-disclosure of the evaluation confounds that model of behavioural change.

The pre-1982 divisional instruction provided that the prisoner was to be informed in writing of the national committee’s decision.100 The new instruction provides that the committee inform the prisoner orally of its decision.101 Will this provide the prisoner with enough information to make him aware of the basis for the committee’s decision and with enough guidance as to what is required of him in the future to bring about a change in his status and eventual release from the SHU? A number.of the Millhaven SHU prisoners showed me the notifications they had received from the national committee. Typically, the notifications indicated the nature of the decision but provided no details about the evidentiary basis on which that decision was made. For example, the April 1980 notification to Prisoner A simply stated, ‘this is to advise you that your confinement in the SHU was reviewed by the SHU National Review Committee. The decision of that Committee is that you will remain in phase two.’102 Comparison with other prisoners’ notifications showed that this was a standard form of notification. Prisoners’ experience with the new procedure of oral transmission of the decision has so far not revealed any significant departure from the conclusionary nature of the communication of the committee’s decision.

Therefore, while the review process, particularly the national review process, was designed to be a significant step in responding to the need for fairness in decisions affecting confinement in the special handling unit, the reality falls far short of meeting that standard. It also fails to conform to the behaviour-modification rationale for special handling units laid down by Vantour-McReynolds. The review process is thus doubly flawed when measured against the external standard of fairness and against the internal objective of inducing behavioural change.

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