THE CRITERIA FOR SEGREGATION

The evidence in Oswald and Cardinal, like that in the McCann case, demonstrates that administrative segregation can be imposed on prisoners by the warden of the penitentiary on the basis of his intuition or instinct without the need to point to specific factual allegations. Such a state of affairs is anathema to the rule of law. Instinctive decision-making may be acceptable at the blackjack table, but when the stakes involved are the pain of imprisonment in H unit such a system is not to be tolerated. The failure of the 1975 Vantour Study Group Report on Dissociation to bring about any change in an arbitrary process is not in the least surprising in light of the report's refusal to require greater specificity in the criteria for administrative segregation. Without such criteria a review process, however elaborate, will fail to render an unprincipled decision any more principled or fair. So long as the review is of a decision that can be made without reference to principled criteria and without any factual underpinning, the process will remain illegitimate in the minds of those on whom it is imposed.

In the past few years a number of groups in the correctional field have laboured over the task of producing sets of 'standards' which have the avowed purpose of making carceral practices both principled and fair.8 The most influential of these in the United States and in Canada has been the Manual of Standards for Adult Correctional Institutions, prepared by the American Correctional Association's Commission on Accreditation for Corrections.9 Its influence is attributable in no small measure to the fact that the commission is made up of professional corrections administrators; therefore the code is a 'homegrown' one rather than one imposed by outsiders.10 The manual is at present the basis upon which Canadian penitentiaries seek accreditation. The manual recommends limited due process protection for segregation in the form of a hearing and a review process, and goes further than the Vantour Report in seeking to place some substantive limitations on the discretion of prison administrators. Under the rubric of 'Special Management Inmates,' standard 2-4214 and its accompanying commentary state:

Written police amd procedure provide for the operation of segregation units fot the supervision of inmates under administrative segregation, protective custody and disciplinary detention.

Dicussion: The Classification Committee or Warden/superintendent, in an emergency, may place in administrative segregation an inmate whose continued presence in the general population poses a serious threat to life, property, self, staff or other inmates, or to the security or orderly running of the institution. An inmate pending investigation for trial on a criminal act or pending transfer, can be placed in administrative segregation. This segregation may be for relatively extensive periods of time.11

Clearly these limitations are not excessively rigorous; in the case of segregation pending resolution of criminal charges they are non-existent.

Another set of standards, prepared by a group of law professors and lawyers active in correctional litigation, contains a much more restrictive code aimed at holding in check the tendency to abuse the administrative- segregation power. The Model Rules and Regulations on Prisoners' Rights and Responsibilities12 would permit administrative segregation in only two circumstances: (1) pending a hearing before a disciplinary board where 'the inmate constitutes an immediate threat to institutional order or the safety of particular inmates' (segregation is limited to three days except where the inmate requests a three-day continuance or in an emergency situation);13 (2) where 'the [warden] determines, on the basis of reliable evidence that [an inmate] is in immediate physical danger' (segregation is limited to a sixty-day period).14 Since the second of these situations provides for protective custody, the model rules, in effect, permit administrative segregation only in the limited case of pre-trial detention. In my opinion this code is too narrow to do justice to legitimate institutional interests, just as the Manual of Standards is too broad to do justice to the legitimate interests of prisoners.

In an earlier study of the prison disciplinary process, I proposed a set of standards to cover the spectrum of situations in which I thought administrative segregation could be justified, and which sought to do justice to both sets of legitimate interests.15 Those standards (and the accompanying administrative process) were subsequently revised and incorporated in the first Canadian Prisoners' Rights Code. The code was prepared under the direction of an assistant deputy minister of the solicitor general's department but has never been adopted as a statement of departmental policy.16

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