How well do these reviews measure up to the legal requirements of the CCRA ? The reason given the prisoners at their reviews for their continued segregation was that there was an on-going investigation into a hostage taking. The CCRA clearly authorizes segregation where the continued presence of a prisoner in the general population would interfere with an investigation that could lead to a criminal charge or a serious disciplinary charge. However, based upon everything I had learned prior to the review, there was nobody at Kent who seriously believed that there had been a hostage taking. Mr. Morgan’s statement that in the face of the prisoners’ refusal to say anything to the RCMP, the institution had no choice but to assume the truth of the prisoners’ assertion that they had taken a hostage, was quite artificial as a basis for continued segregation. Even assuming that there was some evidence that there might have been a hostage, the CCRA requires that the continued presence of the prisoner in the general population would interfere with an investigation. There was no evidence contained in the written sharing of information given to the prisoners, nor none adduced at the hearing, to ground the basis for such interference. The typical basis would be that the prisoners’ presence in the population would be a source of intimidation of other prisoners who might have been witnesses and be ready to provide information to the authorities. In this case, however, the only witnesses were those in the common room and all nine had been taken to segregation, where they were double bunked and freely associated with each other during the exercise period. To the extent that they had developed a joint strategy of not talking to the authorities or of agreeing to a common statement, they had had ample opportunity to do this prior to their five-day review. Returning them to the general population after the five-day review would not therefore present any risk of interference with an on-going investigation. The only possibility for any interference would have to be based upon an institutional strategy whereby the prisoners were to be retained in segregation, hoping that one or more of them (who were not primarily responsible for the barricading and the smash up) might, under the pressure of continuing segregation, break down and "give up" those who were. However, to construe the provisions of the CCRA to justify the segregation of some prisoners, who might well be innocent, to help in the investigation and laying of charges against others, who are believed to be guilty, is unprincipled and difficulty to justify.

What about other possible grounds for continued segregation under the CCRA ? The Act authorises segregation where the prisoner has acted in a manner that jeopardises the security of the penitentiary or the safety of any person and the continued presence of the prisoner in general population would jeopardize that security or safety. Here again there was nothing in the written sharing of information that supported continued segregation on this basis. The prisoners, or at least those primarily responsible for the incident, had been drunk, but after surrendering to the authorities and recovering their sobriety, they had not given the segregation staff any problems during the following week and had given no basis to ground any belief that, if returned the population, they would get involved in such an incident again.

The only other possible ground for continued segregation would be the risk to the prisoners’ safety from other prisoners in the general population. This could be based upon a number of factors. As a result of the incident, there had been a lock down with the attendant disruption of normal activities and an Aboriginal Social had to be postponed. Furthermore, the prisoners in the common room had destroyed the large screen television and the pool table which had been paid for from the Inmate Welfare fund. The other prisoners in B unit were understandably upset, particularly at the destruction of their common property by these nine prisoners; it could be legitimately expected when the nine returned to the population they might be the subject of "strong words" and a possible "tune up" from those prisoners who were now deprived of use of the television, the pool table and, because of the damage done to the common room, of the room itself. However, this possibility could be the subject of negotiation with the Inmate Committee, which might include an agreement by these prisoners to pay back to the Inmate Welfare fund some, if not all, of the cost of replacement of the items destroyed. The anger and fear of retaliation by other prisoners could not therefore be assumed to be a basis for the continued segregation of the nine prisoners. In my own conversations with other prisoners in B unit, while there was little sympathy for the nine prisoners in segregation, there was also little evidence of animosity. The incident was seen for what it was, an ill-conceived and indeed stupid reaction of prisoners who had got drunk, misread the situation, panicked and dug themselves in way over their heads.

Based upon what I had learned before the hearing from both staff and prisoners, there were no legal grounds upon which to maintain the nine prisoners in segregation beyond the 5-day review, and they should have been released to the general population to await the disposition of any disciplinary or criminal charges that might be laid against them.

It is patently clear that the five-day reviews for the nine men were reviews in name only. As Mr. Morgan made very clear to the prisoners, the determination that they would remain in segregation had already been made and the reviews served no other purpose than informing the prisoners of this fact. Nothing that they said would have made any difference to the end result; the brevity of the proceedings represented a mutual acknowledgement by both Mr. Morgan and the prisoners that the decision was pre-determined. Indeed, given the nature of these reviews, in the interest of administrative efficiency, all nine prisoners could have been assembled together and Mr. Morgan could have recited what he had to say to them just once. Envisaging that scenario as an accurate reflection of the nature of the five-day reviews of these cases, brings home how much distance there still is between customary practices and the reviews which are mandated by the CCRA ; reviews that present the factual basis upon which the institution believes that segregation is justified; reviews that provide prisoners with an opportunity to challenge the need for segregation on the basis of other facts and argument; and reviews that require an assessment of all the facts and arguments to arrive at an unbiased recommendation for the warden, one that has not been pre-determined. What these five-day reviews truly reflect is the persistence of the rules of customary law and their ability to trump the provisions of the CCRA.

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