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Mr. Doherty pleaded not guilty, and Mr. Fox proceeded to read over the offence report. Having done so, he said it was not clear to him from the description of the offence which particular things in s. 40 (a) to (r) of the CCRA the charges referred to. He said it was important a charge such as this be specific so the prisoner knew what he had to defend himself against.
Mr. Doherty said he had been in segregation for almost two weeks, and the charge had not been laid until ten days after the incident. Mr. Fox asked Mr. Logan if there was some reason for the unusually long period between the date of the incident and the date of the offence report. Mr. Logan said that the initial investigation had been directed to prisoners DaSilva and Tyson, who were involved in the assault on the officers. Only after that investigation had been completed was the involvement of Mr. Doherty reviewed, and it was decided then to lay a charge against him.
Mr. Fox reviewed the various officers’ statements attached to the offence report, two of which were written the day after the incident, and found that these did implicate Mr. Doherty in one way or another from the outset. On the basis of that information, he said, an appropriate charge to lay against Mr. Doherty might have been participating in a disturbance. However, he found that the ten-day delay between the incident and the time the charge was finally served on Mr. Doherty was unreasonable, and the charge against him was therefore dismissed.
The next prisoner, Mr. Tyson, pleaded not guilty to the charge of assault and requested an adjournment to retain counsel. A hearing date was set for September 27. The third prisoner seen was Mr. Preddy, who faced a charge of taking an intoxicant into his body. He also requested an adjournment to retain legal counsel, and his new hearing date was also set for September 27.
There were further developments arising from the August brew party. The charge against Mr. Biega was withdrawn after he was transferred to Surrey Pre-trial to await the execution of a deportation order back to Poland. The assault charge against Mr. DaSilva was dismissed on the grounds of unreasonable delay when, on the date scheduled for his hearing, the institutional witnesses were not available. Neither the dismissal of the charge against Mr. DaSilva, nor the fact that Mr. Tyson’s hearing had not yet taken place, prevented the completion of transfer packages to the Special Handling Unit, which were served on both prisoners on September 7.
At the September 27 hearing, Mr. Tyson’s appeared without legal representation and changed his plea to guilty of the assault on the two officers. When asked by Mr. Fox whether he wanted to add anything to what was written in the officer incident reports, he said that he did not and commented, "I’m going to the SHU, so let’s get this over with." Mr. Fox asked Officer Wallin, the institutional advisor, whether staff involved had ongoing injuries. He said Officer Cole was on sick leave after the incident with a broken finger and contusions to his head but had just begun work again. Officer Wallin recommended a sentence of 30 days’ segregation, and that was the sentence Mr. Fox imposed. No credit was given for time in the hole since the incident, which in Mr. Tyson’s case amounted to forty-five days.
I have already pointed out that punishment inflicted through the formal disciplinary process is only one of the consequences that may be visited upon a prisoner charged with an offence. In Mr. Tyson and Mr. DaSilva’s cases, by far the gravest consequence they suffered was their transfer to the Special Handling Unit. Reviewing the process through which Mr. Tyson was deemed to be such a serious risk to staff safety and institutional secury, reveals how a prisoner’s history can be re-characterized to support a particular correctional outcome.
In February 1986, Mr. Tyson had been convicted of attempted murder and the use of a firearm during the commission of an offence, for which he was sentenced to 11 years. Following a statutory release in May 1993, he was returned to prison in October of that year after incurring new charges of possession of stolen property and theft of an auto, for which he received an additional sentence of 4 months. On August 3, 1994, two weeks before the brew party, Mr. Tyson’s case management team recommended that his security classification be reduced to medium-security and that he be transferred to William Head Institution. That report stated:
Mr. Tyson has not been a discipline problem in C Unit. Mr. Tyson is co-operative to deal with and he obeys the rules and regulations and gets along with other inmates. He has a friendly attitude towards staff. Mr. Tyson has not received any institutional charges and has been drug free since his return to Kent institution. Mr. Tyson has completed some programming in substance abuse and life skills while at Kent institution. (Progress Summary, Kent Institution, August 3, 1994)
The case management team rated Mr. Tyson’s public safety concern to be moderate, concluding:
This subject has a lengthy history of criminal behaviour and his current offence of attempted murder involved him shooting another individual with a shotgun. However, that offence occurred nine years ago. Since then he has not displayed any aggressive or violent behaviour while incarcerated at Kent institution and he has displayed a more mature and responsible attitude over all.
On August 24, 1994, a week after the brew party and the assault, Mr. Tyson’s case management officer prepared a new progress summary in support of his transfer to the Special Handling Unit. That summary emphasized Mr. Tyson’s disruptive behaviour in the remand centre nine years previously and during his initial admission to the federal system. It noted that his behaviour then showed a marked improvement, and he was transferred to Matsqui in 1991. The report asserts that this improvement in behaviour was shortlived and that Mr. Tyson "reverted back to his previous violent behaviour . . . when the subject was involved in a serious stabbing attack on another inmate. This attack almost caused the death of this victim, consequently Tyson was involuntarily transferred back to Kent Institution." What the new progress summary did not note was that three other prisoners were alleged to be involved in this stabbing; Mr. Tyson denied any responsibility for it, was never charged under either the Criminal Code or the prison disciplinary code, and was not recommended for transfer to the Special Handling Unit. Indeed, he was released into the population at Kent Institution less than three weeks after the stabbing which suggests that the authorities had serious doubts about his involvement. The summary observes that there were no further problems with Mr. Tyson’s behaviour. His security was again reduced to medium, and that was his status at the time of his statutory release.
In describing the assault on August 16, the progress summary stated:
The correctional officer that was attacked by inmate Tyson
suffered a broken finger, and bruising and cuts to his facial area. The
second officer suffered bruising, strained muscles and a sore back . .
. Fortunately, more serious or life threatening injuries did not occur
as a result of this attack, but the attack is viewed as extremely serious
regardless, especially inmate Tyson’s actions. After being shown significant
leniency (just dump the brew and return to his cell), he made a very clear
and conscious decision to violently attack correctional staff. This is
demonstrated by the fact that he did proceed to his cell as requested
at which point the matter would have ended. However he, instead, planned
and acted out a violent attack. He obviously knew what he was doing when
he removed his glasses and false teeth, and he clearly prepared himself
for what he must have thought would be a violent fight. In essence, he
prepared himself for a serious battle as opposed to a spur of the moment
act of anger.
In view of his actions it is clear that inmate Tyson has really gained
little or no benefit whatsoever from his period of incarceration. Instead,
his violent past behaviour has clearly resurfaced and he has shown by
his actions he is prepared to violently attack staff with little or no
provocation. (Progress Summary, Kent Institution, August 24, 1994)
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