We can see how these criteria could influence administrative action by looking at some of the cases studied in Kent Institution. In the case of the two prisoners who were charged with attempted escape, one prisoner was segregated for a month and the other for two months. I have already dealt with the lack of justification for the discrimination in the length of segregation, but a prior question arises as to the need for anything but a temporary segregation in the first place. The escape attempt was not accompanied by any violence, and the prisoners gave themselves up as soon as they were apprehended. There would be justification for an initial period of segregation under subsection l(a) to determine whether other prisoners were involved in the escape attempt. Subject to one qualification, there would be no justification for segregation solely because of the nature of the offence, because Kent is a maximum-security institution and prisoners confined there are all viewed as potential escapees.17 The exception would be the case where a prisoner had made repeated escape attempts from maximum security, particularly under circumstances that endangered his own life or the lives of others. One such case occurred at Kent where a seriously disturbed prisoner had tried to go 'over the fence' on a number of occasions, heedless of the security officers and of the danger in which he placed himself.

In case D, one prisoner was charged with the murder of another. The killing had taken place at Kent some ten months previously. The prisoner had been placed in H unit two weeks before formal charges were laid and had remained there pending the disposition of the murder charge. Again, increased risk of escape cannot be regarded as a factor, particularly in this case, where the prisoner was already serving a life sentence with a minimum of twenty-five years before parole eligibility. The investigation of a murder may, under certain circumstances, justify segregation if the prisoner's continued presence in the population would enable him to intimidate potential witnesses. However, the issue of intimidation of witnesses must be viewed in the context of prison life. By far the most potent factor inhibiting a prisoner from giving evidence against other prisoners is the spectre of being labelled a 'rat,' which will inevitably place the prisoner so labelled in acute physical jeopardy, not just from the man he 'fingers' but from other prisoners, particularly associates of the accused man. The 'rat' will almost certainly have to be placed in protective custody before or at the same time as the accused prisoner is segregated for investigative purposes. Therefore, where administrative segregation is invoked under subsection l(b) and where the offence does not justify segregation under subsection l(a) there must be evidence that there are witnesses in the population and that the accused prisoner, as opposed to other prisoners, poses a serious threat to their safety. In case D, however, the accused prisoner had remained in the population for almost ten months before charges were laid. Clearly his continued presence in the population had not been used to intimidate witnesses or, if it had, he was singularly unsuccessful. More likely still, the informants were already in protective custody or on the street and therefore out of the sphere of potential intimidation. The accused prisoner's segregation would not be justified on the basis of intimidation of witnesses, nor could it be justified (in this particular case) on the basis that his return to the general population would prompt violent reprisals by the dead man's associates. This fear of reprisals is a legitimate institutional interest and is one which is incorporated in the code. In the absence of any evidence that the accused prisoner was threatening any other person in the institution or that his presence in the population would prompt reprisals there would not be, under the suggested criteria, any justification for continued segregation.

Furthermore, the code requires that an important interest of the prisoner be considered in any segregation decision: the prisoner must be able to prepare for his defence of charges pending against him. When the accused in case D complained at his review board hearing of the prejudice to him in relation to interviewing potential witnesses, he was told his lawyer could conduct the interviews. Given that Kent is a two-hour drive from Vancouver and that the defence counsel was being paid on a legal aid tariff, it seems fanciful to expect defence counsel to interview all of the prisoners who might be able to give evidence on the accused's behalf, since the killing was alleged to have taken place in the washroom of the gymnasium at a time when there were dozens of prisoners in the vicinity. Thus, in case D, section 2 of the Segregation Code would compel a finding that the prisoner be permitted to remain in the population, in contrast to the existing practice of compelling his detention in segregation.

Case E permits us to assess the application of these criteria in relation to internal disciplinary charges. A prisoner was facing charges of robbery and attempted murder arising from incidents that took place while he was on the street. The charges were not regarded as warranting segregation once he was admitted to Kent Institution. The prisoner had always been an active and articulate proponent of prisoners' rights and was soon elected to the Inmate Committee. It was in his capacity as a committee member that he took part in discussions with the general population immediately 'before the riot of 7 June. After the riot he was placed in segregation along with other members of the committee and other individuals who were viewed by the institution as being ringleaders. He was initially charged with a disciplinary offence relating to the riot, but this was dismissed by the independent chairperson of the disciplinary board. In late July he was charged with other disciplinary offences relating to the riot, but as of the first week of September there had been no hearing of these charges.18 Neither had the prisoner appeared before the Segregation Review Board in the July and August reviews of his case. He had, however, received written notification from the board: 'This is to advise you that your case has been reviewed by the Segregation Review Board ...and a decision has been made that you will remain in administrative segregation for the good order and discipline of the institution until your case is again reviewed.'

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