The paper recognises that these and other possible options do not provide "the quasi-judicial independence of an adjudicator" but, it is argued they would still "allow the CSC to demonstrate openness and accountability and offers more assurance of the integrity of its actions and processes." What they are said to have in their favour, compared to Madam Justice Arbour’s and the Task Force’s models, is that "the chain of accountability is clear and unbroken."

The option paper invokes the concept of accountability almost as if it were a trump card. However, the conception of accountability envisaged in the options paper is based upon a narrow and flawed analysis. It proceeds upon the basis of a syllogism; the Solicitor General is the Minister of the Crown charged with political responsibility for the Correctional Service of Canada; the Commissioner of Corrections is the person "who, under the direction of the Minister, has the control and management of the Service" ( CCRA section 6) and "an institutional head is responsible, under the direction of the commissioner for the care, custody and control of all inmates in the penitentiary and the management, organisation and security of the penitentiary" ( CCR Regulations section 4); therefore all decision making authority must be ultimately located with either the commissioner or the institutional head for there to be a symmetrical relationship between authority and accountability. This reasoning is flawed because under the existing structure of the CCRA the legal authority for making determinations in relation to serious disciplinary offences is assigned to independent chairpersons. The asserted need for symmetry between authority and accountability is also flawed when the concept of accountability is expanded to encompass an effective mechanism to ensure that the authority of the Correctional Service of Canada is exercised in accordance with the Charter of Rights and the legislative framework. What Madam Justice Arbour found in her Report was that the existing "chain of accountability" had proved totally ineffective in ensuring compliance with the law; yet a year later, in the face not only of her recommendations but those of its own Task Force, the Service would invoke the mantra of accountability to reject even an experiment with independent adjudication. Once it became clear that the CSC did not intend to implement the experiment with independent adjudication or establish a Segregation Advisory Committee, the external members insisted that Commissioner Ingstrup make good on a commitment to meet with Task Force members to discuss the Service’s response to the report.

That meeting took place on December 17, 1997, in Ottawa. Commissioner Ingstrup raised a number of concerns with the Task Force recommendation for expanding the scope of independent adjudication to segregation cases; these were clustered around interrelated issues of consistency, competence and credibility. Many CSC staff perceived that the independent adjudication of disciplinary boards suffered from a lack of these attributes. If the existing system had these problems, the commissioner suggested, expanding independent adjudication to other areas might only compound them. The commissioner expressed his preference for a national or a regional oversight mechanism which would not take away line responsibility from wardens but would still provide an avenue for review to prevent abuses.

The commissioner stated that he had not yet taken a final position on the recommended experiment with independent adjudication, and that before doing so he would like to have his concerns addressed. It was agreed that Todd Sloan and I would prepare a written response, following which a decision would be made on whether the experiment would take place and within what parameters.

Our written response was submitted in mid-February of 1998. With regard to Commissioner Ingstrup’s concern that the expansion of independent adjudication might compound existing problems, we highlighted both my research on the disciplinary process at Kent and Matsqui Institutions and the CSC’s internal evaluations, both of which indicated that the system of independent adjudication, as a whole, operated fairly and in conformity with the law. Acknowledging that there were staff and prisoner concerns, we then suggested how some of these could be addressed through improvements to the existing process. These improvements included the requirement that the Independent Chairperson’s reasons for decision be reduced to writing in all cases and that these reasons be made available to staff and prisoners; the dedication of a staff position to the co-ordination of disciplinary hearings and the provision of suitable legal training to that person to improve the efficiency of the process and consistency in staff recommendations; and the development of a clear set of criteria for the appointment of Independent Chairpersons of disciplinary boards with a level of remuneration commensurate with their responsibilities. (These recommendations for improvements to the disciplinary process are discussed more fully in Sector 3, Chapter 4, of this book.)

In response to the commissioner’s arguments for national or regional oversight mechanisms that would maintain the wardens' authority, we pointed to a major difference between the two models. The independent adjudication model requires a case-by-case review of segregation decisions in the institution at the time these decisions are being made. Independent adjudication is built into the process at the front end to achieve fairness and effectiveness. The external oversight model, whether in the form of audits or reviews, involves a retrospective assessment of a body of cases to ensure that they have been decided fairly and effectively. In other words, in the first model the features of independent review are brought to bear on the case at the decision point; in the second, these features are applied after the fact, with a view to correcting errors that have been made in the past and/or to making recommendations to prevent these errors in the future. We also emphasized that these models should not be viewed as alternatives, with the CSC choosing one or the other. Rather, they should be viewed as cumulative avenues through which the CSC would uphold its Mission and ensure full compliance with the CCRA, the Charter of Rights and Freedoms, and Canada’s international human rights obligations. Seen in this way, independent adjudication of segregation cases and oversight through regional or national reviews become part of a continuum of review mechanisms.

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