A Legal Analysis of Operation Big Scoop

Operation Big Scoop may be seen as a preliminary litmus test for the critical questions with which this book is concerned. First, and perhaps most importantly, were the decisions to place these men in segregation made in a manner that would convey the message, both to the prisoners concerned and to the general population of Matsqui, that justice and fairness were essential and integral elements of the correctional mission? Second, were decisions made in conformity with the law, specifically the Corrections and Conditional Release Act ? The final question is, were segregation decisions made in the 1990s made in a significantly different way than those in the 1970s and 1980s, as described in my previous studies?

At this preliminary stage I want to focus on the second question: whether the decisions in Operation Big Scoop were made in conformity with the law as reflected in s. 31(3) of the CCRA , which sets out the grounds for confining a prisoner in administrative segregation. The section reads:

The institutional head may order that an inmate be confined in administrative segregation if the institutional head believes on reasonable grounds:

(a) that

(i) the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person, and
(ii) the continued presence of the inmate in the general inmate population will jeopardize the security of the penitentiary or the safety of any person,

(b) that the continued presence of the inmate in the general inmate population will interfere with an investigation that could lead to a criminal charge or a charge under subsection 41(2) of a serious disciplinary offence or,

(c) that the continued presence of the inmate in the general inmate population will jeopardize the inmate's own safety, and the institutional head is satisfied that there is no reasonable alternative to administrative segregation.

I would first observe that at no time during any of the discussions and meetings surrounding Operation Big Scoop was there any specific mention of, or reference to, s. 31(3). There are a number of possible reasons for this. The first might be that the law is so well etched in peoples' minds that it requires no articulation but is referentially incorporated into any decision through institutional osmosis. A second reason, much less charitable, might be that in situations of perceived institutional crisis the law is not a primary consideration. A third possible explanation is that the law is so broadly written it enables an institutional decision-maker to use segregation in accordance with his or her best judgement, with the law's requirements seen principally as procedural ones, in terms of providing notice and a review system. Based upon my participation in Operation Big Scoop, the second and third explanations came closest to representing the operating reality in Matsqui Institution.

Regardless of which reason best explains what happened, was the segregation of the thirteen men justified by s. 31(3)? Ground (c), that the inmate's own safety would be prejudiced by his remaining in the population, was not an issue in any case, and so we need not consider it further. Ground (b), that the continued presence of an inmate in the population would interfere with an investigation that could lead to a criminal charge or a serious disciplinary offence, was also not an issue; in no instance was there any suggestion that fact-finding or evidence-gathering to lay charges was dependent upon the prisoners being removed from the population to prevent their interfering with potential witnesses.

This leaves ground (a), which requires that the institutional head believes on reasonable grounds that the prisoner has acted, attempted to act, or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person, and the continued presence of that prisoner in the population would jeopardize such security or safety. This ground is very generally worded and has been subject to serious criticism for not providing substantive control on segregation decisions. But even given its very broad contours, it still requires the presence of reasonable grounds directed to actions, actual or intended, that jeopardize the security of the institution or personal safety. A number of the prisoners targeted in Operation Big Scoop were believed to be involved in extortion, which does fall within the parameters of jeopardizing the safety of any person. A number of other prisoners, however, were identified as being involved in drugs, absent any extortion or trafficking. This allegation lacks the link with jeopardizing personal safety and is not clearly referable to jeopardizing the security of an institution. It could be argued that "security" refers to "dynamic security," and that anything that raises the tension in an institution therefore constitutes an interference with institutional security. This certainly underpins Warden Brock's biorhythm theory. If the security of the institution is given this very broad meaning, however, then almost any action, actual or intended, of any prisoner could be brought within s. 31(3)(a).

But even assuming that we give the term "security" this almost meaningless interpretation -- meaningless in the sense that it places no real limitations or constraints on institutional decision-making -- there is still the question of reasonable grounds. Could it be said that the information-gathering process reflected in the tracking meeting, upon which the warden relied, constituted reasonable grounds? Would a judge, contemplating the issue of a search warrant or determining the legality for a police arrest, find reasonable grounds to believe that an offence had been committed and that relevant evidence was located in a particular place, based upon a process in which a group of police officers swapped information about their perceptions of suspects, without identifying whether this information was based upon direct observation, reliable informant information, or simply general reputation? The unequivocal answer is that such a process would not constitute reasonable grounds under the existing jurisprudence. It no more provides reasonable grounds to justify segregation under the CCRA.

Leaving that point aside, s. 31(3) also requires that if the institutional head has reasonable grounds, he must still be "satisfied that there is no reasonable alternative to administrative segregation." In the case of Operation Big Scoop, there was no consideration given to this question. From my interviews with the acting deputy warden, it was clear he and several other administrators had anticipated that the tracking meeting would identify the principal troublemakers and then determine individual strategies directed to each of them, precisely to see if there were alternative ways of dealing with these prisoners and changing their behaviour and influence, without resorting to segregation and/or transfer. Such a process would have been in conformity with s. 31(3), because only after completion of such a process could it be said that there was no reasonable alternative to segregation. The warden's decision to resort to immediate segregation bypassed this critical part of the process. In my judgement, Operation Big Scoop was carried out in blatant violation of s. 31(3).

Page 1 of 1