The perceived and actual lack of fairness in the review process is enough in itself to undermine the legitimacy of imprisonment in SHU in the minds of the prisoners. That sense of illegitimacy is reinforced in Millhaven by feelings, bordering on outrage, which flow from the perceived hypocrisy of the phase program. As I have described, the prisoners feel that there are no real opportunities for demonstrating in positive ways that they have reformed or changed, apart from simply doing their time and not assaulting anyone in the unit. In my interviews with prisoners and the staff in SHU, I tried to discover the reality behind the phase program. How were judgments made by the institutional staff to recommend progression and ultimate release from the SHU? What criteria were used? I asked these questions of every staff member I interviewed, from the psychologist to the head of classification to the guards on duty in the unit. It was a profoundly disturbing line of inquiry. Initially when asked to differentiate between phases two and three, several of the guards could not think of any real difference in the regimes. Eventually it was conceded that prisoners in phase three were permitted to use the common room every day as opposed to every second day for phase-two prisoners. Yet in the guards’ view this difference seemed not to reflect a reward or incentive but rather was based on the fact that the rules permitted no more than fifteen prisoners at a time in the common room. Since there were more than fifteen prisoners in phase two and substantially fewer than that in phase three, the different treatment was thought to be based on numbers rather than on merit. Indeed, I was told that if the number of prisoners in phase three increased to more than fifteen then they would not have common-room privileges every night. Another difference that came to light after some further thought by the guards was that prisoners in phase three had the opportunity for open visits once every two months. These appeared to be the only differences between the phases, apart from the important fact that in phase three the expectation of ultimate release is that much closer.

Because the guards have important input into the monthly review process, I asked them how they judged the prisoners’ behaviour. Their answers indicated that their assessments were primarily based on the prisoners’ conduct in the common room and in the yard, and that co- operation with the staff was looked for. I pursued the question of criteria for advancement through the phases with the head of classification at Millhaven. He relied upon the statement in the commissioner’s directives and divisional instruction that the principal criterion was ‘the inmate’s demonstrated lack of hostility and his adjudged ability to assume responsibility and to associate with staff and other inmates without posing any threat to their safety.’103 I was informed that these judgments were based on guards’ reports and the assessment of the prisoner’s attitude to the phase program and his participation in its various features. When I asked about the specific programs in phases two and three, I was informed that these were essentially the common-room, hobby, and exercise programs, and the ‘TV program.’ The TV program turned out to be the manner in which prisoners interact in the common room while watching the television set. In my interviews with the psychologist, who has primary responsibility for the SHU, he conceded that the criteria were necessarily open-ended and somewhat subjective, but contended that the review process was designed to ensure that there was no arbitrariness in decisions.

After two days of questioning I left the SHU at Millhaven without having had any clear answers from the staff to the vital question of what I would have to do if I were a prisoner recently admitted to a special handling unit who wanted to get out in the shortest possible time. It appears to me that the prisoners are correct in their assessment that the phase program at Millhaven is the latest example of the correctional emperor without his clothes. In my judgment the phase program at Millhaven is a sham and bears no resemblance to the theory of phases set out in the Vantour- McReynolds report.104

Those in charge of shaping SHU policy in Ottawa might be expected to object to this judgment on the basis that I have not sufficiently taken into account the changes introduced since the time of my first visit to the SHU in August 1980. Although I have already referred to many of these changes, it is necessary to meet this objection. The 1982 divisional instruction now specifies what a prisoner must do to progress through the phases. It states that ‘the criteria for inmates’ advancement between phases shall be: (a) a demonstrated willingness by an inmate to abide by prescribed rules’ and regulations; and (b) the practice of responsible behaviour .’105

The instruction further provides that the case-management team submit to the national committee, within six months of a prisoner’s admission to an SHU, an ‘individual program plan’ which is to include ‘(a) an outline of what the inmate is required to do to be considered for progression through each phase; and (b) when possible a tentative date for the individual’s advancement to phase four. ‘106

The concept of the ‘individual program plan’ is taken directly from the Vantour-McReynolds model of the SHU. It is intended to be a practical and specific reflection of the general principle (stated elsewhere in the directional instruction) that ‘activities for inmates shall be designed so that each inmate shall have the opportunity and responsibility to progress through each phase at a rate determined by his own demonstrated ability [emphasis added].107

Page 11 of 17