Miller wrote to a lawyer from British Columbia who made enquiries of the RCMP and the crown counsel involved in the investigation and laying of charges in the Matsqui riot cases. It appeared that the investigating police officers were of the opinion that the guards’ evidence as to Miller’s participation in the riot was so weak that they did not even refer the case to crown counsel to consider what, if any, charges should be laid against him. Yet that same evidence which had failed to meet the police officers’ relatively low threshold of proof necessary to justify a referral to crown counsel was regarded by the National SHU Review Committee as sufficient to justify transfering Miller to the SHU. There was nothing in Miller’s prior criminal or prison record involving him in any violent incidents in or out of prison; yet without any hearing at which he could challenge the case against him, he found himself designated a ‘particularly dangerous’ prisoner requiring SHU confinement.70

The second case, although it concerns the readmission of a prisoner to SHU, raises further disturbing questions about the fairness of the administrative process. As a case study it is of special importance because it involves Andy Bruce, one of the McCann plaintiffs, and provides a basis of comparison between pre- and post-Martineau decision-making. Since the McCann trial Bruce had been continuously in segregation, first in the British Columbia Penitentiary, then in SHU at Millhaven until his transfer to Edmonton maximum-security institution in May 1982. Since his original criminal conviction in 1970 he has endured over eleven years in segregation, far more than any other prisoner in Canada. Two months after his transfer to Edmonton, on 25 July, he was charged with a discipli- nary offence under section 39(k) of the Penitentiary Service Regulations for ‘doing an act calculated to prejudice the discipline and good order of the institution’ in that he was ‘in a condition other than normal.’ Two days later, on 27 July he was charged again with the same kind of offence. According to Bruce, on this occasion he had seen a nurse and the head of medical staff before and after being charged, and they could testify that there was nothing wrong with him. On 2 August a third charge for ‘being in a condition other than normal’ was laid against Bruce, and he was taken to segregation. Bruce alleges that while handcuffed and in segregation he was severely beaten by four guards. He suffered injuries which, in his view, exacerbated an ulcer condition for which he later required an operation. Bruce subsequently swore informations against the guards, alleging assault causing bodily harm. The justice of the peace before whom the informations were laid refused to issue summonses.

On the morning of 6 August Bruce appeared before the segregation review board. He was told that as a result of his outstanding charges for being in a condition other than normal, a recommendation would be made for his return to SHU. At this point Bruce had not been convicted of any charges. Later that day Bruce appeared before a disciplinary board pre- sided over by an independent chairman to answer to the two charges of 25 July and 2 August. Bruce requested an adjournment to enable his lawyer to represent him at the hearing. He argued that given the serious effect conviction would have on him -return to SHU -the duty to act fairly required that he be represented by counsel. The adjournment was refused. In his defence to the charges, Bruce gave evidence that he had had an ear infection and had been receiving medication during the periods covered by the two charges. After taking the medication he became dizzy and unsteady on his feet and it was while in this condition that he had been seen by officers who had wrongly assumed that he was under the influence of non-prescribed drugs. Bruce was convicted of both charges and sentenced on the first to thirty days’ punitive segregation, and on the second to a further thirty days suspended for ninety days.

After the hearing Bruce received a written notification from the segregation review board confirming that a recommendation would be made for his return to SHU. That notification of 6 August stated that ‘all facts pertinent to [his] case would be included in the recommendation.’ On 9 August Bruce received a copy of the warden’s recommendation for his return to SHU. The only reason given for the recommendation was Bruce’s conviction on the charges of being in a condition other than normal. On that same day a fourth charge was laid against Bruce for possession of contraband. It was alleged that a small amount of cannabis resin had been discovered in a sweater in the cell from which he had been removed seven days previously. It appears that the drug, which had not been discovered in the careful search of his cell conducted immediately after his transfer to segregation, had been found in a subsequent search.

On 12 August Bruce appeared before a disciplinary board to face the remaining ‘condition other than normal’ charge of 25 July and the contra- band charge of 9 August. The hearing was presided over by an independent chairman other than the one who had presided over the first set of charges. Bruce again requested an adjournment to permit legal representation. This time his request was granted and the hearing was adjourned to 26 August. Bruce meanwhile filed grievances concerning what he regarded as the unfair conduct of the previous disciplinary-board hearing. On 26 August Bruce appeared before the disciplinary board with his lawyer. The institution failed to produce the officer who had laid the ‘condition other than normal’ charge; Bruce requested that the charge not be dismissed for lack of evidence but rather be adjourned further to permit the officer to appear. Bruce was anxious that there be a hearing on the merits at which he could call the nurse and medical officer to give evidence that he was not in a ‘condition other than normal.’ The independent chairman dismissed the charge with no evidence being heard .

At the hearing on the ‘contraband’ charge, a prisoner witness testified that it was another prisoner who had placed the sweater and cannabis resin in Bruce’s cell after Bruce had been taken to segregation on 2 August. This prisoner had assumed that Bruce was going to be transferred back to SHU in Millhaven and that the sweater would be packed without further search as part of his personal effects. It was alleged that the cannabis resin secreted in the pockets of the sweater was destined for another prisoner already in SHU. The independent chairman adjourned the hearing to 17 September to hear evidence from the staff member who had searched Bruce’s cell the first time without discovering any drug.

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