At about the same time he met with the Task Force in December 1997, Commissioner Ingstrup received a copy of the report of the Working Group on Human Rights. The Working Group had been established by the commissioner in May 1997 under the chairmanship of Max Yalden, former Chief Commissioner of the Canadian Human Rights Commission. It had been given a mandate "to review CSC systems for ensuring compliance with the rule of law in human rights matters; to provide a general strategic model for evaluating compliance within any correctional context; and to present recommendations concerning the Service’s own ability to comply and to effectively communicate such compliance." (Working Group on Human Rights, Human Rights and Corrections: A Strategic Model [Ottawa: Correctional Service of Canada, 1997] [Chairman: Max Yalden] at 4. Online [last modified October 22, 1999]) The Working Group's recommendations are addressed more fully in Sector 6 of this book. However, it is important to mention here that in reviewing the necessary balance between internal and external mechanisms to ensure compliance with human rights obligations, this report specifically identified the recommendation of the Task Force on Segregation that there be an experiment in independent adjudication.

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 [Task Force] recommendation should be pursued. ( Human Rights and Corrections at 33)

One other outstanding issue raised at the December 1997 meeting with Commissioner Ingstrup was the fact that the report of the Task Force on Segregation still had not been made available to CSC staff, prisoners, or the public. The Commissioner agreed that the Report should be made public. Early in the new year, instructions were given for copies to be distributed, and the document, in both official languages, was posted electronically on CSC’s internal infonet and the Service’s public website in February 1998, almost a full year after it was first delivered to the commissioner.

In April 1998, I was advised by senior officials that while the commissioner had not yet made a decision on the experiment with independent adjudication, the expectation was that it would go ahead, having the accumulated weight of support in the reports of Madam Justice Arbour, the Task Force on Segregation, and the Yalden Working Group on Human Rights. However, in early May my sources informed me that Commissioner Ingstrup had decided there would not be an experiment with independent adjudication. Instead, the Service would proceed with an oversight mechanism based at each regional headquarters.

This regional oversight mechanism would involve the appointment of a senior official who would work directly with wardens to ensure that institutions were in full compliance with the law with respect to managing the administrative segregation review process. This would be accomplished not only by discharging the existing sixty-day review but also by reviewing a sample of cases that had reached the thirty-day hearing point. In addition, the person holding this new position would work directly with wardens and colleagues in other regions to find timely reintegration solutions; conduct reviews of segregation units to ensure that prisoners were housed safely and humanely; provide training to chairpersons of Segregation Review Boards to ensure that they remained fully knowledgeable of the law; act on behalf of regional deputy commissioners to resolve issues raised by the Office of the Correctional Investigator in relation to segregation; and contribute to an annual national report to the Solicitor General on the Service’s performance with respect to the use of administrative segregation.

When it was suggested to me by senior officials that this regional oversight model was a form of "independent" review -- in the sense that the new position was located outside of any institution -- my disappointment crystallized into a deepening scepticism about the Service’s commitment to the values of openness and integrity so prominently proclaimed in its Mission Statement. The regional oversight model is a worthwhile initiative. As part of an enhanced segregation review process, it could make a valuable contribution. But the essential thrust of both the Arbour recommendations and the Task Force on Segregation’s analysis was that a decision which drastically curtails the rights and liberties of a prisoner should be made by a person who is independent from the pressures and biases which drive institutional and regional decision-making. The appointment of a new regional official who would inevitably be part of the culture and hierarchy of the Service entrenches, rather than redresses, exactly the kind of bias against which independent adjudication is directed. There was also the important distinction, clearly identified in our paper responding to the commissioner’s concerns, between independent adjudication at the hearing stage and a review function after the fact. The Service’s regional oversight mechanism conveniently ignores this distinction.

My feelings of disappointment and scepticism were only intensified following further discussions with Mr. Ingstrup at his Commissioner’s Forum held in Kingston in May 1998. (The Forum was established by Mr. Ingstrup to provide him with advice on public policy issues relating to the mandate of the Service.) When the Task Force met with the commissioner in December 1997, he had articulated his concerns about independent adjudication. The paper Todd Sloan and I had prepared, at Commissioner Ingstrup’s express invitation, addressed these concerns one by one. We had received no response to that paper, suggesting that we had not satisfactorily addressed the issues or that our paper raised other issues that required further analysis. In my discussions with senior officials I had been given no explanation for the decision not to proceed with the experiment on independent adjudication beyond the statement that the commissioner had decided against it. At the very least, I expected that my meeting with the commissioner at the Forum would yield his explanation for the decision, particularly with regard to why he had found our response to his concerns less than compelling. His answer to my question took my breath away, and I was left speechless for one of the few times in my life. He advised me that he had not read our paper and then went on to express the same concerns he had voiced at the meeting in December -- the very concerns our paper addressed. When I reminded him that the paper had been prepared at his request, and that he had stated the final decision on whether to proceed with the independent adjudication experiment would be contingent on its preparation and consideration, he assured me that upon his return to Ottawa he would read it. I knew it would not change his opinion regarding independent adjudication, of course, because the decision not to proceed with the experiment had already been made.

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