I attended the five-day reviews for the nine prisoners on September 23, 1998. In light of what I had been told about the lack of any "air of reality" to the hostage taking I was particularly interested to see how the Segregation Review Board addressed the issue of continued segregation beyond the five-day review. In terms of prison customary law the answer was clear cut. Prisoners who participate in a brew party that results in significant damage to property or who show resistance to staff efforts to break up the party, are expected to suffer the consequences by an extended stay in segregation, pending the disposition of any charges that are laid against them. This would particularly be so in a case that involved the calling out of the RCMP and attracted considerable press attention. The logic of customary law is this: because prisoners participating in such a disturbance, if found guilty of a prison disciplinary offence of causing a disturbance or damaging property, could expect to face sentences of up to 30 days in segregation plus orders for restitution, the sooner the prisoners started serving their punishment the more effective will be the deterrent impact of that punishment. But, as I have gone to pains to describe, the CCRA challenges many of the assumptions of prison customary law when it comes to the justification for segregation. How then did the Segregation Review Board address the issue in the case of the nine prisoners?

The Board consisted of Unit Manager Kevin Morgan, a case management officer and the segregation clerk. The review took place in the interview room in the segregation unit. Mr. Morgan began the review of the first prisoner, Mr. Hickey, with the statement, "The object of this review is to determine where we go from here." Mr. Morgan informed Mr. Hickey where the case stood from the institution’s perspective.

The institution sees this incident as a very serious one. We understand there was a hostage taking. The institution is doing an enquiry and the RCMP is conducting its investigation. None of the prisoners are saying anything to either us or the RCMP and so we have no reason to suppose that there was not a hostage taking. Until we determine exactly what happened you will be staying in segregation. I should also tell you that depending upon the results of the investigation you might be transferred to the Special Handling Unit or another maximum security institution.

Mr. Hickey’s response was:

You guys can open your eyes and see that there was no hostage taking. Everybody involved is double bunked in segregation, we are exercising together, and there has been no problems. I thought the SHU was for guys who kill or seriously hurt other people. That didn’t happen here. But if you guys want to fill up the SHU, go right ahead.

The second prisoner to be reviewed was Mr. Fetter. Mr. Fetter had appeared in disciplinary court just prior to his segregation review, had been found guilty of a charge of possession of brew arising from a previous incident and had received a sentence of 30 days segregation. Mr. Morgan began Mr. Fetter’s review by asking him, "Is there anything you want to talk to us about this incident." Mr. Fetter responded, "I was the one who got this shit ended by telling the guys to give it up." Mr. Morgan then gave Mr. Fetter much the same account as he had given Mr. Hickey regarding the institution’s position; that this was a hostage taking, there was an ongoing investigation by both the institution and the RCMP, and the prisoners would be reviewed for possible transfer to the SHU or other maximum-security institutions. In the meantime, Mr. Fetter would be kept in segregation.

After hearing this information, Mr. Fetter stated:

Not everybody in that room was guilty. Some people didn’t know what was happening and by the time they did there was not much they could do about it. It’s not like when people are barricading the room that you can say "I’d like to leave" unless you want to get beaten up.

Mr. Fetter had only 37 days before statutory release but told the Board that he had already settled himself to being detained until warrant expiry and going to the SHU.

The third review of Mr. Napope was very abbreviated. Mr. Morgan repeated the litany of the institution’s position that prisoners would be segregated until completion of the investigation. Mr. Napope was asked whether he had any questions. He said he had none and quickly left the room. The reviews of the rest of the men were as abbreviated as that of Mr. Napope. Indeed, after Mr. Napope’s review, Mr. Morgan began each of the subsequent reviews with the refrain "I’m sure the other prisoners have told you what we have been telling them and that you will be staying in segregation and may be reviewed for transfer to the SHU or other maximums. Each of the prisoners took the announcement as a fait accompli, their only questions relating to when they could expect to get their cell effects. Each of them was told that, now that the 5-day review had been completed, they would be receiving those effects in short order.

The document prepared after the five-day review gave as the official reason for continued segregation the following:

Because of the serious nature of this incident, the level of damage, and the safety risk these individuals pose upon the institution, the SRB recommends that administrative segregation be maintained pending the completion of the investigations. (Review of Offender’s Segregation Status of Brian Hickey, 98-09-23)

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