Managing Segregation within a Framework of Legality

Madam Justice Arbour made a separate body of recommendations concerning segregation and the legal and administrative regime she deemed necessary to bring its management into compliance with the law and the Canadian Charter of Rights and Freedoms. She recommended that the management of administrative segregation be subject preferably to judicial oversight but alternatively to independent adjudication. Her preferred model would permit the institutional head to segregate a prisoner for up to three days to diffuse an immediate incident. After three days, a documented review would take place. If further segregation was contemplated, the administrative review could provide for a maximum of thirty days in segregation, no more than twice in a calendar year, with the effect that a prisoner could not be made to spend more than sixty non-consecutive days annually in segregation. After thirty days, or if the total days served in segregation during that year already approached sixty, the institution would have to apply other options, such as transfer, placement in a mental health unit, or forms of intensive supervision, with all to involve interaction with the general population. If these options proved unavailable, or if the Correctional Service thought that a longer period of segregation was required, it would have to apply to a court for this determination (Arbour at 191).

Failing a willingness to put segregation under judicial supervision, Madam Arbour recommended that segregation decisions be made initially at the institutional level, but that they be subject to confirmation within five days by an independent adjudicator who should be a lawyer and who would be required to give reasons for a decision to maintain segregation. Thereafter, segregation reviews would be conducted every thirty days before a different adjudicator (Arbour at 192 and 255-56).

These recommendations for the administrative segregation process were unambiguously related to her general findings that "the facts of this inquiry have revealed a disturbing lack of commitment to the ideals of justice on the part of the Correctional Service" and her judgement that "there is nothing to suggest that the Service is either willing or able to reform without judicial guidance and control" (Arbour at 198). Nonetheless, Madam Justice Arbour held no illusions about how the Correctional Service would respond to her recommendations. In predicting that "the Correctional Service may not share my view of the need for judicial supervision," she cited the trenchant comment of Professor Hélène Dumont, former Dean at the Faculty of Law, McGill University:

It is self-evident to students of Penal Law that correctional authorities do not take at all kindly to judicial admonitions regarding their abuse of discretion and legendary contempt for inmate rights. (Hélène Dumont, Pénologie, Le droit canadien telatif aux peines et aux sentences [Montréal: Les Éditions Thémis, 1993], cited in Arbour at 185)

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