The Nicholas Case

Mr. Nicholas was one of the prisoners who requested a personal hearing. Mr. Nicholas had been placed on screened visits in December 1993 when he was transferred from Matsqui to Kent as part of the transfer of prisoners suspected of being involved in the importation of drugs into Matsqui. After Mr. Nicholas came into the room, Mr. Dick, who chaired the review, proceeded to scan the IPSO file and then told Mr. Nicholas that this was a three month review "to see why we should give you back open visits. Can you give us a reason?" Under the CCRA and the Regulations there is a presumption in favour of open visits and therefore contrary to the form of the question posed by Mr. Dick, the legal onus was on the institution to demonstrate why screened visits should be imposed or continued. Mr. Nicholas responded, "I'm going nuts. I need contact with the street." Ms. Gallagher replied that Mr. Nicholas had not received any visits since coming to Kent and asked why his visitors had not come on screened visits. Mr. Nicholas responded that it was 100 miles from Vancouver and there was no point in having people spend all that money to come and see him behind a glass screen.

Mr. Dick asked Mr. Nicholas what he had done since coming to Kent to lower his risk of drug involvement. Mr. Nicholas said that he had got a job as the clerk who processed ITF (Inmate Trust Fund) applications. Mr. Dick returned to the IPSO file and said that Mr. Nicholas had been shipped to Kent from Matsqui for his involvement in importing drugs and that he had been given the gist at the time of the transfer about his involvement with another prisoner, Mr. Kang. Mr. Nicholas said that since coming to Kent he had severed all his relationships with Mr. Kang. Mr. Dick said that the two of them had been placed in the hole together and "we can debate whose joint of marijuana it was that was found in your cell." Mr. Nicholas said that he had been charged with that but had been found not guilty. Mr. Dick responded that the charge had been dismissed because of the unavailability of the officer witness. Mr. Nicholas said that he would like to have the alleged joint re-tested because it was herbal tea and he would be prepared to pay for the re-testing. The V&C officer asked why he would have a joint made out of tea. Did Mr. Nicholas smoke tea? Mr. Nicholas said that he and Mr. Kang were out of tobacco and they were both heavy smokers; tea is made from a leaf and in fact is helpful when you are going through nicotine withdrawal. Mr. Dick told Mr. Nicholas, "I don't see anything you've done since coming to Kent to lessen your risk to us." He was asked about his participation in programs and he responded that at Matsqui he had done the OSAP program, the Breaking Barriers program and all that was left for him to do was to participate further in AA, but there was no AA program in General Population at Kent. The Social and Cultural Development Officer acknowledged that this was true but she was prepared to start one and Mr. Nicholas should come and see her. Mr. Nicholas then asked the Board, "What are you saying here? Are you saying you're not gonna give me back my open visits?" Mr. Dick replied, "I've got no positive reports on you." Mr. Nicholas asked, "Have you got any negative reports?" Mr. Dick informed Mr. Nicholas that he did have negative reports that Mr. Nicholas was trying to have other prisoners bring drugs into Kent.

Mr. Nicholas was asked to leave the room and Mr. Dick summarized his views based upon the information in the IPSO file. He did not see how Mr. Nicholas had lowered his risk since he had arrived at Kent. There was a report on file that Mr. Nicholas had caused another prisoner to check into protective custody by saying that he knew that he had been in protective custody before and, if he was not prepared to bring drugs into the institution, he would inform the population. Before he could do that the other prisoner checked in. Mr. Dick said, "the bottom line is what risk does he present of bringing drugs into the institution and in my view he presents a high risk." He suggested that Mr. Nicholas' case be reviewed in six months or sooner if his Case Management Team (CMT) made a positive recommendation. After further discussion it was eventually agreed that Mr. Nicholas' case would be reviewed in three months but the expectation was that he would work with his CMT and that his case would be reconsidered on the basis of a progress summary prepared by them. When Mr. Nicholas was brought back into the room and advised of this, he responded, "how long am I going to get punished for this? I promise you I will not use my visitors to do anything you think I am doing." Mr. Dick said that it was important that he get involved in some programs to lower his risk. Mr. Nicholas was visibly angry and left the room obviously dissatisfied with the result of the hearing.

The predominant feature of Mr. Nicholas' hearing, along with all my other observations of the visit review board, was the centrality of the preventive security information. This was only reviewed by Mr. Dick and its importance became even more evident than it usually was because he chaired the hearing. For considerable periods he was reviewing quite extensive entries in the IPSO file which he shared with nobody except in a summary form. Mr. Nicholas had been provided with the gist of the information which led to his transfer to Kent; however, he was not given the gist of the information upon which Mr. Dick was relying to form the opinion that he continued to be involved in trying to import drugs into Kent using other peoples' visitors; yet this was the real basis upon which Mr. Nicholas' case was reviewed. Mr. Nicholas was quite helpless to defend himself against these allegations which were accepted as established fact by the Board. Even his acquittal at the disciplinary hearing was used against him in a negative way. The fact that the charge against him for alleged possession of contraband was dismissed because of the failure of the officers to give evidence was used to minimize the acquittal even though it effectively prevented Mr. Nicholas from presenting a defence which might have resulted in a dismissal of the charge on the merits.

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