The five-day review of Mr. Whitmore’s case should have addressed these issues, and Mr. Whitmore should have received notice in writing of whatever information the institution had to support his segregation. Yet all he and the other prisoners were provided with was a segregation notice containing the following:

You have been placed in segregation pending investigation into your involvement in the recent sports field incident. All alternatives to segregation were explored, as none were found, your placement in segregation was actioned. You will be seen by the Segregation Review Board on July 17, 1997. (Five-Day Review of Offender's Segregation Status, Kent Institution, July 17, 1997)

The five-day reviews of Jimmy Whitmore and the other thirteen inmates illustrate more than the continuing issue of non-compliance with the CCRA requirements for administrative segregation; they also underline why independent adjudication is crucial to the justice of both the process and the result. The current provisions of the CCRA assume that correctional administrators are capable of conducting the review of segregation cases fairly and impartially. Yet a close examination of the situation in the aftermath of Christian Grenier’s murder reveals the fallacy of this assumption.

Based on a review of the videotape evidence and the observations of correctional officers, a small group of prisoners were identified as the primary participants in the melee. Given that the authorities already knew of the ongoing power struggle between the prisoners in A unit and C unit, it does not take a Ph.D. in Correctional Administration to recognize that the institution needed to get matters under control, and quickly. This was accomplished effectively by lock-down, which contained the situation and enabled the investigation to begin. However, the problems which gave rise to the hostilities remained, so opening up the units and returning the prison to normal routine presented a real risk of renewed conflict and further violence by way of retaliation or pre-emptive strike. The segregation of prisoners identified by video and other evidence as primary players in the assault and murder is justified during the initial period of investigation, during which the institution explores the conditions under which the lock-down can be ended. In these initial stages, it may be reasonable to segregate individuals whose activity on the videotape is ambiguous but who could well be implicated in the assaults by virtue of their close relationship with other participants. For some of these prisoners, immediate segregation may be justified because of a reasonably based fear that, even in a lock-down situation, their presence in the general population may be a source of further disturbance. For others, while their presence is no threat to the security of the institution during a lock-down, their presence in the general population thereafter may undermine the prison’s return to normal operations because of the prisoners' willingness to carry on the war or their vulnerability to retaliation by the other side.

There is no doubt that these are very difficult judgement calls, with a heavy premium on "getting it right." "Getting it wrong" could result in another body in the yard. Kent Warden Brenda Marshall, together with senior staff including Mike Csoka, the IPSO, and experienced correctional supervisors, determined which prisoners should be immediately and subsequently segregated to both contain the war zone and prevent further conflict. After the smash-up in A unit, they segregated the prisoners directly involved, to prevent further damage to the institution and a further delay in ending the lock-down of the general population. None of these decisions were taken lightly, and they were made in good faith based on the best information available to the warden and her staff.

The segregated prisoners were then entitled to a five-day review. The Segregation Review Board was chaired by the person who was simultaneously Co-ordinator of Case Management and acting unit manager of Segregation and who the previous week had also been acting as deputy warden. Mike Csoka, in all of these capacities, played a central role in developing correctional strategies following the killing and subsequent smash-up. It defies reason, correctional or otherwise, to expect him to conduct these five-day reviews with an open mind, unbiased by the previous decisions and the flow of information to which he had been privy. When he announced to the prisoners that they would remain in segregation pending completion of the investigation, he was, from his senior administrator’s perspective, stating the obvious. That is the way things work in a maximum security institution after a major incident, especially one involving a killing. From Mr. Csoka’s perspective, you would have to be from Mars to expect anything different. In that sense, the five-day reviews were conducted only because they were required by the CCRA, not because any decision other than maintaining the prisoners’ segregation might be reached.

Under these circumstances, there is clearly no possibility that the review contemplated by the CCRA can be carried out. A "review" requires a consideration of the facts measured against the lawful grounds for segregation, and a determination whether, in light of any reasonable alternatives, continued segregation is justifiable. A "review" requires an evaluation by someone whose mind is not already made up on the issue. This fatal flaw in the current form of review cannot be side-stepped by the assertion that the Segregation Review Board simply makes a recommendation which is then referred to the warden for the ultimate decision. In the cases we are considering here, and indeed in most cases of a similar nature, the warden is part of a collective decision-making process in which the five-day reviews are an element.

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