The Tucker Case

A second prisoner transferred to Kent after the lock-down at Matsqui was Mr. Tucker. At the time of his transfer, Mr. Tucker was a twenty-seven-year-old first-time federal offender serving 61/2 years for break and enter, attempted robbery, and robbery. The general search conducted in June 1994 had revealed what was alleged to be drug and gambling paraphernalia in Mr. Tucker's cell, as a result of which he was segregated. A progress summary gave the following grounds for his transfer to Kent:

While at Matsqui, according to security information, in January 1994 Mr. Tucker's communications were monitored and conversations were overheard in reference to moneys owing to other inmates. Furthermore, in April 1994 Mr. Tucker was identified by a reliable source as selling cocaine within Matsqui Institution. Once again, in May 1994 Mr. Tucker's communications were monitored and conversations were overhead in reference to moneys owing by other inmates. Additionally, a cell search was completed on 94-06-13 of Mr. Tucker's cell and correctional staff found pills which tested positive for codeine, one complete syringe, a notebook detailing drug debts, gambling markers and a pair of scissors . . . Mr. Tucker has failed to conduct himself within the rules and regulations of Matsqui Institution and, at the present time, his case management team does not feel that a medium security environment is suitable for Mr. Tucker. (Progress Summary, Matsqui Insitution, June 17, 1994)

The offence report, supporting a charge of possession of contraband, indicated that officers found "a complete hype kit wrapped in a Kleenex and tucked inside a lip on the metal cell cabinet and two beige coloured pills inside the lip on the cell ceiling light." The pills were tested by the IPSO at Matsqui and registered positive for codeine. This charge was initially set down for hearing on July 13, then made peremptory on Matsqui on July 27. On that date, the charge was administratively withdrawn. The reason listed on the offence report was "no physical evidence."

In his written rebuttal, Mr. Tucker denied any knowledge of the drug outfit. With regard to the pills that had tested positive for codeine, he explained that these could have been from a pack of sinus Tylenol which another prisoner had left in his cell and he had thrown in the garbage. In response to the allegation that he was using and dealing in drugs, he stated that he had taken the Relapse Prevention Program and had signed an agreement to participate in urine analysis but had never been asked for a sample. He asked, "If some inmate had said to you that I was selling cocaine, why wasn't I approached by staff for a search or asked for a urine sample?" He also denied any involvement in gambling within the institution:

My involvement in gambling is nil. I was not once found with playing cards. What was involved in the notebook was that I lent out bales and asked for extra back, something like a bank. So that I am guilty of, but I would never pressure anybody if they owed me and couldn't pay right away. In all institutions tobacco is very hard to come by because of the pay inmates make and the lack of work available . . . people have to pick up cigarette butts off the ground and out of ash trays, it's actually a very sad situation. It also said I had gambling markers in my house. Well, they are for my courses in horticulture and business management for lining out things, nothing more. If I was involved in gambling, why wouldn't you have staff and inmate reports on me? (Rebuttal of Tracy Tucker, June 1994)

Warden Brock, in reviewing and confirming his recommendation for transfer, responded to Mr. Tucker's rebuttal in this way:

• You were involuntarily transferred to Kent Institution on 94-06-15.
• I have reviewed the documentation mentioned above and have given consideration to your rebuttal. I note that you deny all knowledge of the syringe which was found in your cell. However, it is your responsibility to ensure that your cell does not contain contraband items. Furthermore, as stated in the documentation provided to you, reliable information dated April 1994 indicated that you were selling cocaine within Matsqui Institution.
• You state that the pills were sinus Tylenol and that you had thrown them in the garbage. Again, as I state above, you must accept responsibility for the contraband found in your cell whether it is drug related, scissors or items which appear to be gambling markers.
• It is of concern that in your rebuttal you admit to lending bales of tobacco and then "ask for extra back, something like a bank." This is a flagrant breach of expected conduct and is known in other circles as "loan sharking." This type of conduct will not be tolerated in an institution.
• I have given serious consideration to your rebuttal and the related documentation. I have considered your previous involvement in drug usage in the community and other security information which indicates you are involved in drug activity in the institution. While I appreciate your honesty, I have serious concerns about your lending bales of tobacco and then expecting something extra in return. This is not acceptable behaviour. (Notification of Recommendation for Involuntary Transfer, Matsqui Institution, July 13, 1994)

The Deputy Commissioner, in upholding Mr. Tucker's involuntary transfer to Kent, stated:

I have carefully reviewed the transfer documentation and Mr. Tucker's responses. There is sufficient information to justify a high rating under institutional adjustment concern which results in an overall classification of maximum security. Therefore I approve transfer to Kent Institution. (Final Decision, August 5, 1994)

The allegation of Mr. Tucker's involvement in drugs seems referable to a single reliable source, but he was provided with no gist of this information beyond its assertion in the progress summary. There is no information about the time frame in which this involvement is alleged to have taken place, the sources through which Mr. Tucker is alleged to have introduced the drugs, or the quantities of drugs alleged to be involved. There is no answer to Mr. Tucker's question about why he was never given a urine analysis or subjected to a search if the institution suspected his involvement with drugs. The allegations of gambling are linked to a notebook containing debts owed and to gambling markers. Mr. Tucker's explanation of his use of the markers for highlighting course materials is never addressed, yet this would have been easy for the authorities to corroborate.

Mr. Tucker's transactions in lending other prisoners tobacco with the expectation that he would be paid "extra back" is characterized by warden Brock as "loan sharking" and "a flagrant breach of expected conduct." These allegations seem exaggerated. There is no evidence that Mr. Tucker was charging an unconscionably high rate of interest. He asserts that he never put undo pressure on prisoners who owed him, and the institution did not come forward with evidence suggesting otherwise. If lending tobacco in prison was sufficient grounds for transfer to maximum security, Greyhound therapy would require investment in a whole new fleet of buses.

This leaves the allegations of possession of drugs and drug paraphernalia. Warden Brock asserts that Mr. Tucker is responsible for whatever is found in his cell. This is true as a matter of institutional policy but not as a matter of legal possession. In Sector 2, Chapter 2 of this book, I recounted the clash between the institutional perspective on a prisoner's responsibility for objects found in his cell and the legal prerequisites to prove possession of them. In the absence of proof, a prisoner cannot be found guilty of the disciplinary offence of possession of contraband or an unauthorized item. The disciplinary charge against Mr. Tucker was withdrawn because the institution, by its own admission, could not meet the legal test of possession. Had Mr. Tucker faced a charge of possession of drugs on the street and the charge been withdrawn for lack of evidence, he would have left the courtroom a free man. However, in the prison world, that lack of evidence -- while preventing Mr. Tucker's conviction on a disciplinary charge -- did not limit the institution's power to punish him by raising his security level and transferring him to Kent. Mr. Tucker was denied the chance to establish his innocence and, for the purpose of his transfer, treated as if he had been found guilty.

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