SCRA Committee Report

5.2 Section 4 of the Corrections and Conditional Release Act sets out the legislative principles upon which sentences are to be managed. Paragraph 4(d) of the Act requires the Correctional Service to use the least restrictive measures consistent with the protection of the public, staff and offenders (least restrictive alternative). Paragraph 4(e) affirms that offenders retain rights and privileges available to all community members, except for those necessarily removed or restricted consequential to a sentence of imprisonment (residual rights). Finally, paragraph 4(g) requires that correctional decisions be made in a fair and forthright manner, allowing for access to an effective grievance resolution process.

5.3 Section 101 of the Act sets out the legislative principles that are to guide the Parole Board in achieving the purposes of conditional release. Paragraph 101(b) requires the Parole Board to take into account all available relevant information, in making conditional release decisions. Under paragraph 101(f), offenders are to be provided with relevant information, reasons for decisions, and access to the review of decisions, so as to ensure a fair conditional release process.

5.4 Over the years, the courts have imposed a duty to act fairly on corrections and conditional release authorities. The components of this duty include:

• the provision of notice and information to offenders;
• the right of offenders to present evidence and make representations to the decision-maker; and
• the provision to offenders of a fair and unbiased decision-making process.

5.5 The legislative principles, read together with the duty to act fairly, provide the backdrop to the issues dealt with in this chapter. It addresses the manner in which a sentence of imprisonment is to be managed and conditional release and other decisions are to be made. More particularly, this chapter discusses various decisions made by corrections and conditional release authorities and their impact on offenders. It takes into account the residual rights of offenders, the least restrictive alternative, and fair decision-making obligations placed upon the Correctional Service and the Parole Board.

5.6 The John Howard Society of Canada describes the importance of fair and equitable decision-making processes in the following terms:

5.7 Administrative segregation is provided for at sections 31 to 37 of the Act. This type of removal of inmates from contact with other inmates can be either voluntary (requested by the inmate) or involuntary. It is different from segregation imposed as punishment in the inmate disciplinary process for a serious offence (see paragraph 44(1)(f) of the Act).

5.8 Subsection 31(3) of the Act sets out the grounds for administrative segregation in the following terms:

The institutional head may order that an inmate be confined in administrative segregation if the institutional head believes on reasonable grounds

(a) that

(i) the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person, and

(ii) the continued presence of the inmate in the general inmate population would jeopardize the security of the penitentiary or the safety of any person,

(b) that the continued presence of the inmate in the general inmate population would interfere with an investigation that could lead to a criminal charge or a charge under subsection 41(2) of a serious disciplinary offence, or

(c) that the continued presence of the inmate in the general inmate population would jeopardize the inmate's own safety,

and the institutional head is satisfied that there is no reasonable alternative to administrative segregation.

5.9 The purpose of administrative segregation is to prevent the inmate from associating with the general prison population. The Act does not establish a maximum length of time for the duration of administrative segregation. Subsection 31(2) requires the Correctional Service to return the inmate to the general inmate population of the present or another penitentiary at the earliest appropriate time.

5.10 Section 33 of the Act deals with the initial and later regular reviews of administrative segregation cases. It does this in general terms and leaves the details of such reviews to section 19 to section 23 of the Corrections and Conditional Release Regulations.⁵⁶ Under these provisions of the Regulations, the warden of a penitentiary is to review, within one working day, the case of an inmate involuntarily administratively segregated by a staff member acting under delegated authority. Within five working days a segregation review board, made up of Correctional Service personnel, is to review the case of an administratively segregated inmate. As well, it is to review such a case every 30 days for as long as the inmate is administratively segregated. There is also provision in the Regulations for the review of administrative segregation cases every 60 days by a Correctional Service employee designated by the appropriate regional deputy commissioner.⁵⁷

5.11 Administrative segregation was one of many issues addressed by the coroner's jury hearing evidence about the events surrounding the October 1993 death of Robert Gentles, which occurred while Correctional Service personnel were forcibly removing him from his Kingston Penitentiary cell. The jury, which heard many months of testimony about Mr. Gentles' death, reported its findings and 74 recommendations on June 24, 1999. Among the issues addressed were cell extractions, the use of chemical agents and inflammatory sprays, institutional lockdowns, correctional staff training, correctional officer stress, management accountability, citizen advisory committees, and increased independent civilian oversight of the Correctional Service.

5.12 The jury dealt with administrative segregation at recommendation 19 by saying:

It is recommended that when administrative segregation is used, it is administered in compliance with institutional procedures and the law and appropriately monitored by senior management.

5.13 This recommendation did no more than urge that there be adherence to legislative, regulatory and policy guidance already in place for resorting to administrative segregation. The fact that the coroner's jury felt the need to make this recommendation demonstrates the importance they attached to this issue. The Correctional Service responded officially in January 2000 to this recommendation by describing in general terms what it has done since 1997 to improve the administrative segregation process. Some of this information can be found elsewhere in this part of the chapter.

5.14 During its travels, the Sub-committee took a particular interest in administrative segregation and toured the segregation units in each of the penitentiaries it visited. The administrative segregation review process itself and long-term administrative segregation were of special concern. Consequently, the Sub- committee submitted a number of written questions on the operation of administrative segregation to the Correctional Service.

5.15 It received a reply to its questions in July 1999, which contained current data and other forms of information. The Correctional Service provided the Sub-committee with what is set out in the following paragraphs.

Some Data

5.16 According to the Correctional Service, 80% of inmates placed in involuntary administrative segregation are released prior to the first review of their cases (after 30 days) by the segregation review board. Furthermore, 93% of such inmates are released from segregation prior to the regional consideration of their cases (after 60 days). The average stay for inmates released within these delays is 18 days.

5.17 Insofar as voluntary administrative segregation inmates is concerned, 57% of them are released prior to the 30-day review of their cases by the segregation review board, while 77% of them are released before the 60-day review of their cases. The average stay for inmates released within these delays is 38 days.

5.18 The Correctional Service provided the Sub-committee with data on long-term administratively segregated inmates. As of May 31, 1999, there were 59 involuntary and 116 voluntary cases segregated for more than 90 days. Of the 59 involuntary cases, 11 had been segregated for between 90 and 120 days, 22 for between 120 and 180 days, and 26 for more than 180 days. Of the 116 voluntary cases, 22 had been segregated for between 90 and 120 days, 38 for between 120 and 180 days, and 56 for more than 180 days.

5.19 Since 1997, the Correctional Service has undertaken a national initiative to control the growth of administrative segregation and reduce it by the safe and secure reintegration of long-term administratively segregated inmates into the general prison population. In the summer of 1997, there were 163 inmates who had been administratively segregated for more than 120 days. By June 1998, this had been reduced to 98 inmates. As of May 31,1999, this population was 144, and more recent data indicated it was in the vicinity of 125 inmates. Most of this population is made up of inmates who have voluntarily sought administrative segregation or are placed there for their own protection.

5.20 The Correctional Service has told the Sub-committee that since 1997 it has reduced the administrative segregation cell capacity by 20%.

Recent History

5.21 The administrative segregation process has been the subject of vigorous debate for many years, going back to the early 1980s and beyond. It has intensified in recent years since the proposals contained in the Arbour Commission Report were released in April 1996.⁵⁸ The commission of inquiry investigated the circumstances surrounding a number of events that occurred in April 1994 at the Kingston Prison for Women. It made findings of fact with respect to these occurrences and proposed a number of recommendations to address the broader policy issues to which they gave rise.

5.22 The commission of inquiry's findings of fact dealt with the segregation unit at the Prison for Women, strip searches, body cavity searches, involuntary transfers, the complaint and grievance process, the role of the Correctional Service Board of Investigation, and the role of the Correctional Investigator in these events. The policy issues addressed by the Arbour Commission Report included the development of a culture of rights within the Correctional Service, the management of segregation, the increase of accountability in operations, cross-gender staffing, Aboriginal women offenders and the healing lodge, and the future of women's corrections.

5.23 Madam Justice Arbour described the effect of segregation on inmates in the following terms:

A number of studies have noted the additional impact of the treatment of inmates while in segregation. These include negative interactions with staff, the frequent violation of the rules and regulations governing detention in segregation, and the uncertainty of release for inmates held in administrative segregation. The findings that I made earlier support the conclusion that prolonged segregation is a devastating experience, particularly when its duration is unknown at the outset and the inmate feels that she has little control over it.

The use of segregation by the Correctional Service for inmates in distress, including those who are at risk of self injury or suicide, is also problematic. The forced isolation of individuals from their social and physical supports, and human contact, is a profound form of deprivation. It can only heighten feelings of desperation and anxiety in situations of despair and high need.⁵⁹

5.24 She later went on to make the following comment and proposal:

The segregation review process that I have examined in this case was not operating in accordance with the principles of fundamental justice. The literature suggests that this is not unusual. Segregation is a deprivation of liberty. In my view there should be judicial input into the decision to confine someone to `a prison within a prison' .... There is no rehabilitative effect from long-term segregation, and every reason to be concerned that it may be harmful. I realize that there are circumstances where segregation, even prolonged segregation, may be inevitable. I see no alternative to the current overuse of prolonged segregation but to recommend that it be placed under the control and supervision of the courts. Failing a willingness to put segregation under judicial supervision, I would recommend that segregation decisions made at an institutional level be subject to confirmation within five days by an independent adjudicator. Such a person should be a lawyer, and he or she should be required to give reasons for a decision to maintain segregation. Segregation reviews should be conducted every 30 days, before a different adjudicator, who should also be a lawyer. ... ⁶⁰

5.25 In response to the Arbour Commission Report, the Correctional Service in June 1996 established a task force to conduct a comprehensive review of the use of segregation. Made up of members from both within and outside of the Correctional Service, the task force submitted its report in March 1997.⁶¹ The report made findings and provided advice on a number of issues, including procedural compliance, improving the segregation review process, independent adjudication, population management, conditions of confinement, segregated women offenders, and segregated Aboriginal offenders.

5.26 The issue of an enhanced segregation review process and the role of independent administrative segregation review adjudication was the object of vigorous debate between and among task force members, who were from within and outside of the Correctional Service. In the end, they came up with the following two recommendations that were included in their report:

Enhance the Segregation Review Process

2. Eight initiatives should be undertaken to enhance the segregation review process.

(i) A standard operating procedure should be developed and adopted outlining the roles and responsibilities of all parties involved in the administrative segregation process in the context of the relevant law, regulation and policy. Staff members and managers must be held accountable. Steps should be taken to include compliance with the law as a key factor in staffing, promotion and performance review processes.

(ii) A continuous education initiative must be targeted at staff members and managers with direct responsibilities for administrative segregation. The initiative must include training on the legal rights of Aboriginal people, more specifically, on their access to spiritual/cultural possessions and support, and the need to continue the healing process identified in the Correctional Plan. Further, OMS training on changes to the system with respect to the administrative segregation process must be immediately provided to all users who are involved in the process.

(iii) Institutions with segregation units should review the informal approaches used to prevent or discontinue segregation, and explore other alternatives, such as formal and informal mediation mechanisms.

(iv) More formal and disciplined segregation review hearings should be adopted. The Task Force recommends mandatory certification for all chairpersons of Segregation Review Boards.

(v) OMS should be recognized as the principal file of record.

(vi) Regional Segregation Review and Transfer Boards should be established in each region to expedite intra-regional transfers of segregated inmates. The Task Force also recommends that CSC create an Inter-Regional Transfer Board to arbitrate and effect transfers between regions.

(vii) Proposed changes to expedite the resolution of complaints and grievances initiated by segregated inmates should be integrated into the implementation of the enhanced model.

(viii) Scheduled and random audits should be performed to ensure that the segregation review process and the conditions of confinement in segregation units are in compliance with the law and policy.

The implementation of recommendations will have to be respectful of both Aboriginal and women offender requirements and rely on input from both internal and external specialists and stakeholders.

Experiment With Independent Adjudication

3. (a) CSC should experiment with a model for independent adjudication as soon as possible to evaluate both the impact of the operational requirements (organization, roles and responsibilities, and cost) and the benefits that may accrue to improving the fairness and effectiveness of the administrative segregation review process. The experiment should be used to determine not only how the best blend between an enhanced segregation review process and independent adjudication could be achieved, but also to determine if independent adjudication improves the fairness and effectiveness of decision making. The results of the evaluation should include the clear definition of the factors that indicate the benefits and deficits of using independent adjudication; an analysis of the impact that independent review has had on the decisions that were taken; recommendations on the best model and best fit for independent adjudication; and proposals of an action plan for implementation if the recommendation is to adopt the model.

3.(b) Experimentation with independent adjudication should be fast-tracked in order to ensure that evaluation results are available for review by EXCOM by the end of 1997. The Task Force has also considered the relationship between the proposed experiment with independent adjudication and the CCRA five-year review, which is presently underway. The Task Force is concerned that the window for legislative amendment provided by the review not be closed while the proposed experimental model is being implemented. The Task Force therefore recommends that, while experimentation is taking place, drafting of proposals for possible legislative amendments could occur. If regulatory measures are also deemed to be helpful then they could also be drafted in parallel.⁶²

5.27 In May 1997, the Correctional Service established a working group on human rights under the chairmanship of Maxwell Yalden, former Chief Commissioner of the Canadian Human Rights Commission. It examined the Correctional Service's international and domestic human rights obligations and its human rights practices, and developed recommendations and strategies to better enable the Correctional Service to meet its human rights obligations.

5.28 The working group reported its findings and recommendations in December 1997.⁶³ It made the following comments on the above recommendations by the Task Force on Administrative Segregation:

There continues to be a debate on whether decisions to place or maintain inmates in administrative segregation should involve independent adjudicators. The Task Force on Administrative Segregation did not recommend immediate implementation of such a model, but it did propose that CSC evaluate its potential benefits by way of a limited experiment. Since, in Canada, administrative segregation may affect inmates' liberties even more than disciplinary segregation, which has an upper limit of 30 days, and given the fact that institutional authorities may have a vested interest in the outcome of their decisions, we believe the latter recommendation should be pursued.⁶⁴

5.29 Instead of accepting recommendations from these three groups that some form of independent adjudication become part of the administrative segregation review process, the Correctional Service has taken steps to enhance the system already in place. Since 1997, it has undertaken a national initiative, with the results mentioned earlier in this chapter. This undertaking included the following elements :

• the provision of training and reference documentation to managers and operational staff on the proper use of administrative segregation;
• the development of alternatives to administrative segregation;
• a focus on the successful reintegration of long-term administrative segregation inmates into the general inmate population; and
• the appointment of senior level employees in each Correctional Service region to monitor all aspects of the administrative segregation review process and report to regional deputy commissioners.

5.30 The Correctional Service is to be commended for the initiatives it has undertaken. Although these efforts at enhancement go a considerable distance to satisfy, in part, the proposal made by the Task Force on Administrative Segregation, they do not go all the way. They do not, however, approach the recommendation on independent adjudication made by the Arbour Commission Report, or even the recommended limited experiment with independent adjudication made by both the Task Force on Administrative Segregation and the Working Group on Human Rights.

Independent Adjudication

5.31 The independent adjudication of administrative segregation cases was addressed in several submissions received by the Sub-committee. It was comprehensively dealt with by the Canadian Bar Association.⁶⁵ The Association recommended to the Sub-committee that the Corrections and Conditional Release Act should be amended to provide for independent adjudication of cases of administrative segregation.⁶⁶ The recommendation does not indicate after what period of time in segregation there would be access to independent adjudication. It also does not make a distinction between voluntary and involuntary administrative segregation.

5.32 Charlene C. Mandell, of the Queen's University Faculty of Law correctional law project, supported a variation of the Canadian Bar Association recommendation. She proposed that an inmate confined in administrative segregation for more than 90 days have his case considered by an external reviewer independent of the Correctional Service. Subsequent independent reviews would be held every 60 days. She proposed that this change could be effected by amending either the Act or the Regulations.⁶⁷

5.33 The Barreau du Québec supported the proposals on independent adjudication made in the Arbour Commission Report, set out earlier in this chapter,⁶⁸ as did the Canadian Association of Elizabeth Fry Societies.⁶⁹ Both the Canadian Criminal Justice Association⁷⁰ and the St. Leonard's Society of Canada⁷¹ supported the limited experiment with independent adjudication proposed by the Task Force on Administrative Segregation. The John Howard Society of Canada⁷² approved independent adjudication in principle and indicated support for a pilot project.

5.34 The Sub-committee believes there is a place for administrative segregation in the collection of techniques available to the Correctional Service for the effective management of the prison population and the fair administration of sentences of imprisonment meted out by the criminal courts. It must, however, be resorted to in the context of the duty to act fairly and the principles set out in section 4 of the Act, described in the introduction to this chapter. These principles are the residual rights of offenders, resort to the least restrictive carceral alternative, and a fair decision-making process.

5.35 The impact of administrative segregation on inmates has been graphically described by Madam Justice Arbour in the extract from her report quoted earlier in this chapter. As well, the physical and program constraints on administratively segregated inmates are severe. This was obvious to the Sub-committee in each of the segregation units it visited during its penitentiary tours. It must also be recognized, however, that the inmate population being managed by the Correctional Service in its administrative segregation units is a difficult one, posing serious challenges on a day-to-day basis.

5.36 Since 1997, the Correctional Service has taken important steps to enhance and monitor the segregation review process, find alternative approaches, and effectively reintegrate long-term administratively segregated offenders back into the general prison population. These enhancement and monitoring efforts should be continued and extended by the Correctional Service. They are, however, a complement to, and not a replacement for, the independent adjudication of actions affecting the residual rights and freedoms of inmates.

5.37 Administrative segregation removes inmates from normal daily contact with other offenders. It has the effect of making their access to programs, employment, services and recreation more difficult than it is for inmates in the general prison population. It has a dramatic impact on their residual rights. It makes the conditions of incarceration more stringent than they are for other inmates.

The Sub-committee's Position

5.38 For these reasons, the Sub-committee believes there is a need for the insertion of an independent decision-maker who will take into account all factors related to administrative segregation cases. It is not necessary for all segregation decisions to be made by this independent adjudicator. The Sub-committee believes that the Correctional Service should continue its efforts to develop alternatives to administrative segregation and find ways to safely reintegrate long-term administratively segregated inmates.

5.39 The Sub-committee believes that the process in place for the review by the warden of segregation cases after one working day and by the segregation review board after five working days should remain in place. The Sub-committee believes, however, there should be independent adjudication of administrative segregation cases 30 calendar days after the initial segregation decision. It may be necessary to distinguish between voluntary and involuntary cases and allow for independent adjudication in the former type of case 60 calendar days after the initial placement. Regular independent adjudication would occur subsequently every 30 or 60 days, depending on the nature of the case.

5.40 The period of 30 days was selected because this is the maximum period of segregation allowed for when it is imposed as a punishment for a serious offence by the independent chairperson, as part of the inmate discipline process. This threshold is proposed because there is little or no difference in the stringency of living conditions to which inmates administratively or punitively segregated are subject. Indeed, independent chairpersons could also be designated as the individuals who would exercise this independent adjudicative authority, since they would already be knowledgeable of and familiar with the law and day-to-day reality of federal penitentiaries.

5.41 As mentioned earlier, at the present time there is no maximum period for which an inmate can be administratively segregated. The Sub-committee believes this should not be changed. Many of the voluntarily administratively segregated inmates are long term. This is often the case because the realistic possibility of their reintegration into the general prison population is limited. Regular reviews of their cases by independent adjudicators will give an impetus to Correctional Service efforts to have them reintegrated, and ensure that their cases are under frequent reconsideration.

5.42 This proposed independent adjudication process would leave enough room and opportunities for the Correctional Service to seek alternatives to administrative segregation, including transfers to another institution. It would also allow preparation for the eventual successful reintegration of the inmate. Underlying all of this is the proper use of administrative segregation. For this to happen, it is essential that managers and operational staff be provided with appropriate levels of training and reference documentation. The Correctional Service must continue to do this in an ongoing, enhanced manner.

RECOMMENDATION 21

The Sub-committee recommends that the Corrections and Conditional Release Act be amended to provide for the adjudication (by independent chairpersons appointed by the Solicitor General as part of the inmate discipline process) of involuntary administrative segregation cases every 30 calendar days and of voluntary administrative segregation cases every 60 calendar days.

5.43 During its visit to correctional facilities in the Quebec region, the Sub-committee toured the special handling unit, located as a distinct entity within the regional reception centre at Ste-Anne-des- Plaines. Because it is the only facility of its kind, it was believed that a visit to it was required to allow the Sub-committee to compare it with the maximum-security penitentiaries and segregation units it visited elsewhere in Canada.

5.44 Neither the Corrections and Conditional Release Act nor the Regulations provide an explicit, comprehensive description of the special handling unit, how inmates are sent to it, what is done with them once there, and how their incarceration in that facility is reviewed and monitored. To address these issues, it is necessary to consult the relevant Commissioner's Directive.⁷³

5.45 The Commissioner's Directive describes the policy objective of the special handling unit as being to establish an environment where dangerous inmates are assisted and motivated to behave in a responsible manner, so as to allow them to be returned to a maximum-security institution. Dangerous inmates are defined as those whose behaviour has caused death or serious harm, or seriously jeopardizes the safety of others.

5.46 The Commissioner's Directive sets out a process to be followed to have a dangerous inmate transferred to the special handling unit. The regional deputy commissioner must review the case of any inmate who has committed an act resulting in death or serious harm. The inmate may be ordered transferred to the special handling unit by the regional deputy commissioner. This decision is to be carried out in a manner consistent with the Commissioner's Directive setting out the procedure and policy for the involuntary transfer of inmates.

5.47 Once at the special handling unit, an inmate is to be assessed and the National Review Committee is to determine whether the inmate is to remain at the special handling unit or be returned to a maximum- security penitentiary. The National Review Committee makes any subsequent decisions with respect to the transfer of inmates out of the special handling unit. These decisions are to be made in a manner consistent with the Commissioner's Directive on inmate transfers. There is no limit on the length of time an inmate is to spend incarcerated in the unit. As well, there is no determined frequency as to when subsequent reviews have to take place. The Committee also monitors the ongoing activities of the special handling unit and collects data related to its operation.

5.48 The National Review Committee is made up of a bilingual assistant deputy commissioner (as chair), an associate warden of the special handling unit (as secretary), and at least two wardens from maximum-security institutions. The Committee reports functionally to the senior deputy commissioner and provides quarterly reports of its activity to that person.

5.49 The legal basis for the establishment and continued existence of the special handling unit was considered, along with other issues, by Madam Justice Tremblay-Lamer of the Federal Court in Murray v. Canada (Correctional Service, SHU, National Review Board Committee).⁷⁴ She started by examining section 30 of the Act, which provides for the assignment of a security classification to an inmate. She then read this provision in the context of section 11 of the Act, which allows for any inmate to serve a sentence in any correctional facility. She thus concluded that because the Act does not assign security classifications to correctional facilities, the Correctional Service has discretion to transfer any inmate to any facility, regardless of personal security classification.

5.50 The legal basis for the existence of the special handling unit was graphically brought to the Sub- committee's attention by the Association des avocats et avocates en droit carcéral du Québec.⁷⁵ They argue there is no basis for placing inmates in the special handling unit since the Act does not provide for anything beyond maximum-security classification. Alternatively, they argue, if the special handling unit is a form of administrative segregation, it does not operate in a manner consistent with the relevant provisions of the Act allowing for the warden or a delegate to make the initial administrative segregation decision.

5.51 Although it is not necessary to accept the arguments set out by the Association, it has at least brought to the Sub-committee's attention the presence of some uncertainty as to the basis in law for the special handling unit and the review process now in place. Having visited the special handling unit, maximum-security institutions, and a number of segregation units, the Sub-committee can say with certainty that the former unit is on a different level of magnitude from the others. The security precautions are strict, with the consequence that inmate contact with others is even more constrained than in these other types of facilities. The inmate population is a difficult one, posing a unique challenge to those who have to work with it on a daily basis. The physical layout of the special handling unit is unique, having no parallel elsewhere among federal correctional facilities.

5.52 To recognize the reality of the special handling unit and provide it with a legal basis in the inmate security classification system, the Sub-committee believes that an additional security classification level has to be added to the Act and Regulations. The existence of this additional level of inmate security classification is implicitly recognized in the Commissioner's Directive dealing with the special handling unit. This document describes the policy objective of the special handling unit as facilitating the reintegration of inmates into maximum-security institutions.

5.53 Further support for a new security classification level can be taken from comparing the definition, in the Commissioner's Directive, of dangerous inmates to be transferred to the special handling unit, with the definition of maximum-security inmates contained in the Regulations.

5.54 Paragraph 18(a) of the Regulations describes a maximum-security inmate as one who presents a high probability of escape and a high risk to the public in case of escape, or who requires a high degree of control and supervision within the penitentiary. In contrast, section 2 of the Commissioner's Directive defines a dangerous inmate who may be transferred to the special handling unit as one whose behaviour is such that it causes death or serious harm, or seriously jeopardizes the safety of others.

5.55 There is thus a clear distinction between the two types of inmate population described in these definitions. The distinction is clear enough to justify the development of a new security classification level to recognize the reality of the special handling unit.

RECOMMENDATION 22

The Sub-committee recommends that section 30 of the Corrections and Conditional Release Act be amended to add a new level of security classification to be known as special security and that section 18 of the Corrections and Conditional Release Regulations also be amended to define the new level of security classification.

5.56 At the present time, neither the Act nor the Regulations sets out the transfer, review and monitoring processes to which day-to-day operations of the special handling unit are subject. The administrative segregation and inmate discipline processes find their legal foundations in both the Act and the Regulations. Commissioner's directives on their own, without legislative and regulatory underpinnings, do not have the force of law. Even the legal underpinnings identified for the special handling unit in the Murray case mentioned earlier in this part of the chapter are, at best, in need of amplification.

5.57 The Sub-committee believes that the Act and the Regulations should make explicit provision for the special handling unit and the transfer, review and monitoring processes applicable to its day-to-day operation. This would have the effect of increasing the visibility of the unit and provide another assurance that it is constituted and functions in ways consistent with the rule of law, the duty to act fairly, and the residual rights of inmates recognized in the Act.

5.58 Under this proposal, the role of the Special Handling Unit National Review Committee will continue to be at the core of the review and monitoring functions to be put into place. To provide the Committee with a high degree of credibility and an assurance that it will carry out its functions in a thorough, fair and unbiased way, it should draw some of its membership from experienced people outside of the Correctional Service.

RECOMMENDATION 23

The Sub-committee recommends that the Corrections and Conditional Release Act and the Corrections and Conditional Release Regulations be amended to provide a complete legal foundation for the continued existence of the special handling unit and the transfer, review and monitoring measures to which it is subject in its day-to-day operation. Provision should be made in these amendments for representation from outside the Correctional Service on the Special Handling Unit National Review Committee.

5.59 The basis for the disciplinary process applicable to inmates can be found at section 38 to section 44 of the Act and section 24 to section 41 of the Regulations. The Act describes the purpose of the discipline process as being to encourage inmates to conduct themselves in a manner consistent with the good order of the penitentiary. It asserts these provisions as the exclusive means for the discipline of inmates.

5.60 Section 40 of the Act sets out an exhaustive list of disciplinary offences to which this process applies. Some of them have their equivalents in criminal law, while others do not. Attempts at informal mediation of potential disciplinary situations are made mandatory. Notice and hearing of disciplinary charges are provided for in this part of the Act. Finally, section 44 of the Act provides sanctions for inmate disciplinary offences, ranging from a warning or reprimand to segregation for up to 30 days in the case of a serious disciplinary offence.

5.61 The Regulations provide details on the appointment of independent chairpersons, notice to inmates of disciplinary charges, the hearing of disciplinary charges and guidance on sanctions. They distinguish between minor and serious disciplinary offences without defining them, with the latter being subjected to more severe punishments.

5.62 Independent adjudication of inmate disciplinary offences was first proposed in the 1970s, most prominently in the 1977 report of the Parliamentary Sub-committee on the Penitentiary System in Canada - the MacGuigan Committee. At that time, it recommended that inmate disciplinary hearings should be presided over by independent chairpersons.⁷⁶ This recommendation was ultimately accepted and implemented by federal correctional authorities.

5.63 As mentioned earlier in this chapter, the existence and appointment of independent chairpersons is not set out in the Act, but is provided for in the Regulations. Under section 24 of the Regulations, the Solicitor General appoints independent chairpersons from outside of the Correctional Service to hold office, during good behaviour, for renewable periods of up to five years. The Minister also appoints a senior independent chairperson for each region from among the independent chairpersons. The occupant of this senior position advises and trains independent chairpersons, ensures that disparities in sanctions imposed are kept to a minimum, and exchanges information with others in the same position in other regions.

5.64 Subsection 27(2) of the Regulations gives independent chairpersons sole and exclusive jurisdiction to hear and determine cases of serious disciplinary offences, other than in extraordinary circumstances. Wardens or designated Correctional Service staff members have jurisdiction to hear and deal with minor disciplinary offences. Only independent chairpersons have authority to impose sanctions for serious disciplinary offences set out in section 35 to section 37 and section 39 to section 40 of the Regulations. These include loss of privileges for up to 30 days; restitution of up to $500; fine of up to $50; the performance of extra duties for up to 30 hours; and segregation for up to 30 days, not to exceed 45 days in instances of consecutive segregation sanctions.

5.65 In its July 1999 response to the Sub-committee's written questions, the Correctional Service explained that the following criteria are taken into account in making recommendations to the Solicitor General concerning the potential appointment of independent chairpersons:

• judgment and level of expertise in the disciplinary hearing process for serious offences;
• capacity to influence and lead;
• length of independent chairperson experience, if any;
• bilingualism; and
• interest in and knowledge of the independent chairperson process.

5.66 As of July 1999, of the 43 then-current independent chairpersons, 34 were practicing or formerly practicing lawyers, one was a former judge, and one was a criminologist.

5.67 The adjudicative role played by independent chairpersons is essential to the fairness of the inmate discipline process. Not only must performance of their functions be fair and unbiased on a daily basis, but it must also be seen and conceived in such a way as to reinforce this expectation.

5.68 Earlier in this chapter, the Sub-committee recommended that independent chairpersons be charged with the responsibility of adjudicating administrative segregation cases every 30 or 60 days, depending on whether they are respectively involuntary or voluntary. The Sub-committee concluded that this function should be added to the duties of independent chairpersons because they already have experience adjudicating disputes in a correctional context.

5.69 More particularly, independent chairpersons are experienced with segregation. They have available to them the option of imposing segregation of up to 45 days as a disciplinary sanction. Subsection 40 (3) of the Regulations provides that inmates who are segregated for a serious disciplinary offence are to be accorded the same conditions of confinement as inmates who are administratively segregated.

5.70 The Criminal Lawyers Association proposed that the criteria for the appointment of independent chairpersons be specified in either the Act or the Regulations.⁷⁷ The Sub-committee agrees with the intent of this proposal, but notes that the Regulations already contain this provision.

5.71 The additions to the functions to be performed by independent chairpersons proposed by the Sub- committee demonstrate the importance it attributes to this position. The duty to act fairly is not just a series of procedural rules applicable to decision-makers. It also imposes an obligation on policy-makers to ensure that decision-makers exercising adjudicative authority do so in a fair and unbiased manner, indeed, in the absence of even an appearance or apprehension of bias.

5.72 One way for policy-makers to do this is to provide a clear statutory basis for the independent exercise of adjudicative functions. Including the process and criteria in the Act for the appointment of independent chairpersons will enhance their authority, provide permanence to the functions they perform, and make their adjudicative functions more open and transparent to those who want to scrutinize them.

RECOMMENDATION 24

The Sub-committee recommends that the Corrections and Conditional Release Act be amended to allow for the appointment of independent chairpersons and senior independent chairpersons for five-year renewable terms, during good behaviour, by the Solicitor General. The amendment should specify that independent chairpersons are to exercise adjudicative functions with respect to administrative segregation and serious disciplinary offences. Finally, the amendment should set out criteria to be applied in the selection and appointment of independent chairpersons.

5.73 Section 135 of the Act deals with the suspension of conditional release where an offender has committed a new offence or breached a release condition. As described elsewhere in this report, there is also provision for the authorization of apprehension and reincarceration of such an offender until the Parole Board can conduct a hearing to determine whether the offender should be released back into the community or have his conditional release cancelled or revoked.

5.74 Subsection 135(4) and subsection 135(5) of the Act provide the Parole Board with the power to review the cases of these offenders, whose conditional releases have been suspended and who have been reincarcerated. These provisions do not, however, set out the delay within which the Parole Board has to render a decision on such cases. Subsection 163(3) of the Corrections and Conditional Release Regulations requires the Parole Board to render a decision within 90 days of the referral of such a case to it, or the reincarceration of the offender.

5.75 The Criminal Lawyers Association recommended that this 90-day time frame should be reduced to 45 days. The following rationale was provided for this recommendation:

The increase (from the former law) in time to 90 days before the Board has a hearing in a post-suspension situation is sufficient to end all attempts at reintegration, through loss of employment, schooling, housing, healthcare and family commitments for what may be very minor breaches of the release order, rather than any return to criminal behaviour. Again, as long as it is easier to let the National Parole Board make the decision and give all parties longer to do so, the prisoner' s ability to reintegrate is decreased.⁷⁸

5.76 The Sub-committee attended a post-suspension Parole Board hearing during one of its correctional institution visits. The Board members conducting the hearing were aware of the impact of reincarceration on the offender's efforts at reintegration, and thoroughly canvassed the consequences of their decision.

5.77 The Sub-committee agrees with the submission and recommendation made by the Criminal Lawyers Association. In circumstances where an offender has been in breach of a release condition without committing a criminal offence, the case should be reviewed in a timely manner so that the necessary adjustments can be made and the offender may continue on the path of rehabilitation. The conduct of timely reviews and the rendering of the resulting decisions are an essential part of a fair and equitable decision- making process.

RECOMMENDATION 25

The Sub-committee recommends that subsection 163(3) of the Corrections and Conditional Release Regulations be amended to require the National Parole Board to render, wherever possible, post-suspension decisions within 45 days of case referral or offender reincarceration.

5.78 Section 141 of the Act deals with the provision of information to offenders by the Parole Board. It requires the Board to provide the offender with the information, or a summary of it, to be used in the consideration of a case. As well, it allows an offender to waive access to this information or the time frame before a case within which it must be provided.

5.79 Subsection 141(4) of the Act allows the Parole Board to withhold from the offender as much information as strictly necessary where it would not be in the public interest to disclose such information or where its disclosure would jeopardize the safety or any person, the security of a correctional institution or the conduct of any lawful investigation.

5.80 Information disclosure in a timely manner is essential for any offender to prepare for a case being considered by the Parole Board. Indeed, as stated elsewhere in this chapter, it is an important component of the duty to act fairly by which the Parole Board is bound.

5.81 Subsection 141(4) of the Act does not require the Parole Board to advise the offender of the withholding of such information or of the reasons for such a decision.

5.82 The Canadian Bar Association dealt with this issue in its brief to the Sub-committee.⁷⁹ It was recommended by it that the Parole Board should be prohibited from considering information not disclosed to an offender if such non-disclosure has not been communicated to the offender. The Sub-committee agrees with this submission. As well, it was recommended that subsection 141(4) of the Act be amended to require the Parole Board to advise an offender in writing of non-disclosure and the reasons for it. The Sub- committee adopts this recommendation as its own.

5.83 The duty to act fairly, in the Sub-committee's view, requires that offenders to whom information is not disclosed be at least advised of the reasons for non-disclosure. As well, fairness dictates that there should not be reliance on undisclosed information to make case-specific decisions if the offender has not been notified of this non-disclosure.

RECOMMENDATION 26

5.84 The Appeal Division is established under section 146 of the Corrections and Conditional Release Act. Prior to the adoption of the Act by Parliament in 1992, it had no legislative foundation. The Division is to consist of no more than six members, of whom one is designated vice-chairperson, appeal division. In July 1999 written responses to Sub-committee questions, the National Parole Board stated that the Appeal Division is made up of four full-time members, one of whom is the vice-chairperson.

5.85 A member of the Appeal Division may not sit on the appeal of a decision in which the member participated. Under subsection 105(3) of the Act, each member of the Parole Board, except for the chairperson and the executive chairperson, is assigned to a division of the Board in the instrument of appointment. As well, subsection 105(4) of the Act makes each member of the Parole Board an ex officio member of every division of the Board. With the approval of the chairperson, any board member may sit on a panel in any division. This means that Appeal Division members can sit on regional panels and regional board members can sit on Appeal Division panels.

5.86 Section 147 of the Act sets out the grounds for which an offender may appeal a Parole Board decision. There may be an appeal if the Parole Board panel, in making its decision:

• failed to observe a principle of fundamental justice;
• made an error of law;
• breached or failed to apply a Parole Board policy;
• based its decision on erroneous or incomplete information; or
• acted without or beyond its jurisdiction, or failed to exercise its jurisdiction.

5.87 The vice-chairperson of the Appeal Division may refuse to allow an appeal to go to a panel if it is frivolous or vexatious, beyond the jurisdiction of the Board, based on information not before the panel whose decision is being appealed, or the offender has 90 days or less to serve before the end of sentence. Section 168 of the Corrections and Conditional Release Regulations requires that a written notice of appeal must be sent to the Appeal Division within two months of the Board panel decision being reviewed.

5.88 On completion of its review of a decision, the Appeal Division can:

• affirm the decision;
• affirm the decision but order a further review;
• order a new review of the case; or
• reverse, cancel or vary the decision.

5.89 Parole Board panel decisions are reviewed by Appeal Division members reading the file considered by the first panel and listening to the audiotape of the hearing. There is no appeal hearing. Two members of the Appeal Division consider each appeal. If they are unable to agree on the outcome of the appeal, the case is considered by another two-member Appeal Division panel.

5.90 In its July 1999 response to the Sub-committee's written questions, the Parole Board stated that these appeals are not a consideration de novo, in which the merits of the original decision are to be considered and the Appeal Division would ordinarily substitute its decision for that of the original panel. Instead, this process was described as akin to judicial review, where the purpose is to ensure that the rules of natural justice and the duty to act fairly are respected. Other identified goals are to ensure that Parole Board policies are followed and to provide guidance to members of the Board to ensure some uniformity in decision making. The Appeal Division was also described as a source of peer review of Parole Board members' decisions.

5.91 The Sub-committee asked the Parole Board to give it some sense of the Appeal Division's caseload. In 1996-97, it received 517 review applications, compared to 540 in 1997-98, and 425 in 1998-99.

5.92 Serious concerns about the Appeal Division were brought to the Sub-committee's attention by the Association des avocats et avocates en droit carcéral du Québec.⁸⁰ Instances were pointed out where Appeal Division members temporarily participated in panels in regions from which they came, and regional board members temporarily participated in Appeal Division panel consideration of cases from their regions.

5.93 This situation was confirmed in part by the Parole Board's July 1999 written responses to the Sub- committee's questions. It was clearly indicated that Appeal Division members participate in regional board panels when there are case backlogs or delays in appointing new members to the National Parole Board. The Board's response indicates this is a relatively minor occurrence.

5.94 What is important here is not just that the appeal process be fair, but that it be free of even the apprehension or appearance of bias. The problem seems to be with the design of the Appeal Division contained in the Act. More particularly, section 105 allows for all members to be ex officio members of all divisions of the Board. It is acceptable for this to be the case in relation to regional board members. It is not acceptable when it comes to members of the Appeal Division who sit in judgment of the decisions made by regional board members.

5.95 There is also confusion as to the nature of the functions to be performed by the Appeal Division. The relevant provisions of the Act seem to provide it with responsibilities akin to the judicial review functions performed by the Federal Court of Canada and provincial superior courts of original jurisdiction. Yet the Board describes the Appeal Division as being a source of peer review of decisions made by Parole Board panels, one of whose goals is to avoid an undue degree of disparity in decision making.

5.96 The Sub-committee believes the Act should be amended to clarify the role and functions of the Appeal Division. There must be a clear distinction between Parole Board members who sit on the Appeal Division and those who sit on panels in the regions. To allow cross-sitting, as is now the case, undermines both the first instance and appeal levels of Parole Board decision making. If there are backlogs in the regions, more effective case-management strategies should be developed and deployed, and additional Board members should be recruited, selected and appointed.

5.97 The decision-making responsibilities assigned to the Appeal Division by section 147 of the Act are, in many respects, similar to the judicial reviews conducted by the courts. Consequently, some Appeal Division members have to have legal training, or be lawyers, to carry out this administrative law review function effectively and fairly. The Parole Board informed the Sub-committee that as of July 1999, 21 of its permanent and part-time members were lawyers. The Sub-committee believes that at least one of the Appeal Division panel members reviewing a case should be a lawyer.

RECOMMENDATION 27

The Sub-committee recommends that the Corrections and Conditional Release Act be amended to prevent National Parole Board members appointed to the Appeal Division from participating in any other parole decisions during their terms as members of that Division. Regional members of the National Parole Board should also be prevented from participating in Appeal Division decisions. At least one member of each Appeal Division panel reviewing a case should be a lawyer.

55^# Brief, p. 3.

56^# SOR/92-620, as amended.

57^# More details can be found at Commissioner's Directive 590 (1997-01-24) entitled Administrative Segregation.

58^# Commission of Inquiry into Certain Events at the Prison for Women in Kingston, Report, Public Works and Government Services Canada, Ottawa, 1996.

59^# Ibid., at p. 187.

60^# Ibid., at p.191-192.

61^# Correctional Service Canada, Reviewing Administrative Segregation: Commitment to Legal Compliance, Fair Decisions and Effective Results, Task Force Report, March 1997.

62^# Ibid., p. 68-69.

63^# Correctional Service Canada, Human Rights and Corrections: A Strategic Model, Report of the Working Group on Human Rights, December 1997.

64^# Ibid., p. 33.

65^# Brief, p. 21-29.

66^# Brief, recommendation 2.

67^# Brief, p. 4.

68^# Brief, p. 19-20.

69^# Brief, p. 7-8.

70^# Brief, p. 20-23.

71^# Brief, p. 6-7.

72^# Brief, p. 7-8.

73^# Commissioner's Directive 551 (1997-05-28) entitled Special Handling Units.

74^# (1996) 1 FC 247.

75^# Brief, p. 12-13.

76^# Parliamentary Sub-committee on the Penitentiary System in Canada, Report to Parliament, Ottawa, 1977.

77^# Brief, p. 11.

78^# Brief, p. 9-10.

79^# Brief, p. 38-39.

80^# Brief, p. 53-58.