At a hearing before the independent hearing officer, the institution's case would be entered into evidence. Only in the most exceptional cases would prison informants be prepared to testify at such a hearing, and therefore reliance would usually be placed on a written statement (which would not identify the source of the information). While the independent chairperson would be told the informant's identity, the administration usually would be able to maintain a claim to confidentiality of the source of information against the segregated prisoner. In case F, however, since the prisoners already knew who the informants were, the non-disclosure of the source of the information in the statements taken from the informants would not be justified. At the hearing the accused prisoners, with the assistance of counsel, could challenge the credibility of the informants' story, and could cite in particular any ulterior motive they might have for fabricating such a story in order to effect a transfer. They could also present their own evidence and call other witnesses (including prison staff) to attest to their prior good behaviour. The independent hearing officer would be required to assess the corroboratory evidence relied on by the institution -discovery of the security breaches and the arms caches. Counsel for the accused prisoners would no doubt argue that these could have been effected and collected by other prisoners, particularly since the holes in the walls were in a cell block other than the one in which the accused prisoners lived; further, the evidence of other security breaches was not necessarily corroborative of the involvement of the accused. Again, a judgment would be made by the independent hearing officer as to the likelihood of the informants telling the truth in certain material elements (the arms and security breaches) but fabricating the names of the prisoners involved. Highly relevant here would be a letter written by one of the informants shortly before he was transferred in which he stated that he was not certain of the degree of involvement of one of the accused prisoners. In this connection also the hearing officer would have to weigh the fact that all of the prisoners involved, both those accused and those providing information, were French Canadians, against the accused's statement that they did not associate with the two informants so that, even if they had been hatching a plot, they would not have made the informants privy to this information. (In Kent, francophone prisoners associate exclusively with other - though not all other - francophones.)

The warden himself released one of the accused prisoners from segregation after three weeks. He told me (but not the prisoner) that the letter from the informant had cast doubt on this accused's involvement and that this accused's prior behaviour in Kent had been impeccable. In light of this, it seems reasonable to expect that a hearing before an independent hearing officer would have resulted in a decision to release that prisoner into the population, thus avoiding a three-week detention. But let us assume that the hearing officer concluded that the evidence of the informants was reliable and sufficiently corroborated and that it did implicate the other accused; what implications would flow from this in terms of continuing segregation? If the authorities were continuing their investigation into security breaches and there were further inquiries to be made, the continued confinement of the accused in segregation until the completion of those investigations might be justified. However, when the investigations were completed would the circumstances justify further segregation? The authorities would have effectively taken preventive action to halt the escape plot and the prisoners would have been alerted to the fact that their plan was discovered and that henceforth they would be very carefully watched. The fact that these men, who by virtue of their maximum-security status are deemed to be escape risks, have demonstrated that they are prepared to act upon their potentiality, while it gives the authorities cause for greater viligance against them, does not require that they be subjected to the rigours of segregation. Only if their previous behaviour in the institution and the particular circumstances of the plot indicated that, despite greater surveillance, there was a substantial enough likelihood that they would again seek to take hostages (thus constituting an immediate threat) would segregation be justified.

Another case that illustrates the hard judgments that are required, and how the criteria and process I am advocating would render these judgments more rational and legitimate, involves prisoners who were locked up in H unit at the same time as the prisoners suspected of the escape plot. In case G the prisoners were suspected of attempting to murder another prisoner who, as a result of the injuries he sustained, was hospitalized for several months with multiple facial fractures and possible brain damage. The institution received information about the identity of the attackers and the motivation for the attack from a variety of prisoner sources. This suggested that although only two prisoners actually perpetrated the attack, it was an organized effort on the part of a larger group. Under the proposed Segregation Code, within seventy-two hours the institutional authorities would present to the hearing officer the information they had gathered to that point about the circumstances of the attack. The authorities would argue that investigations were continuing, that charges of attempted murder might be laid against the two prisoners, and that the release of these prisoners into the population would constitute an immediate threat to their physical safety because of the possibility of violent retaliation from friends of the injured prisoner. Given the presence of organized gangs in Kent Institution, this is both a real and an immediate threat. In a case such as this the role of the independent hearing officer in reviewing weekly the need for continued segregation and monitoring the institution's plan to reintegrate the prisoner into the population assumes primary importance. In case G reintegration would require either a transfer to another institution or an arrangement, necessarily with prisoner involvement, to ensure that there would be no retaliation. The Inmate Committee could playa vital role in working out an informal truce between the factions involved and in submitting their representations to the hearing officer.

Let me complete this field-testing of my proposed Segregation Code by considering its application to what is probably the single event most feared by prison staff - a hostage-taking. There is no doubt that these incidents have become more common in recent years, although they are still infrequent. A hostage-taking is an event that will always bring forth a demand by the staff that the prisoner involved be segregated. This is not an unreasonable demand from the point of view of people who have to live with that prisoner in a face-to-face situation. There is very little in this world which destroys one's confidence in the safety of face-to-face relationships more completely than finding a knife pressed against your throat by someone who gives every indication that he will use it. There is no question that under the proposed criteria such an event would be valid cause for segregation; the act clearly constitutes an immediate threat to the personal safety of an individual. A question remains as to the duration of that segregation, however. Under present arrangements a prisoner involved in a hostage-taking incident would certainly be a candidate for a special handling unit and would spend at least two years there. How would my proposed scheme deal with the continued segregation of a hostage-taker? In most cases criminal charges would be laid without delay and the question for decision by the hearing officer would be whether segregation was required pending the hearing of these charges. This would require a determination under section 2(b) whether there was a 'substantial likelihood that the offence will be continued, or repeated' which, of course, would depend upon the circumstances that gave rise to the hostage-taking and the institutional record of the prisoner. Under the proposed code, the authorities would not be able to continue his segregation beyond ninety days. They would have to develop a plan to reintegrate the prisoner into the population, one which would allay the staffs' concern for safety. Lest this response to hostage-taking be viewed as too lenient in light of the seriousness of the prisoner's conduct, it must be remembered that segregation is not intended to be the appropriate punitive sanction for hostage-taking: that is reserved for the criminal court. Segregation, although at present identified by staff as a means of dealing with the felt need to 'intensify' imprisonment in order to achieve punitive purposes, is not designed for any end except limited preventive detention.

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