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The continuing arbitrariness of the segregation process and the role of the courts in requiring, through the vehicle of procedural fairness, that certain restrictions be placed on the penitentiary’s ultimate carceral power are well illustrated in the case of Oswald and Cardinal v. Director of Kent Institution.140 This case is particularly relevant because it marked the first occasion since Martineau (No.2) on which a court has given substance to the duty to act fairly in relation to a prison disciplinary matter and because it concerned the segregation process at Kent Institution. In the case, two prisoners at Matsqui Institution were alleged to have taken a guard hostage at knifepoint on 29 July 1980 and to have confined him for five hours. They were charged under the Criminal Code with forcible confinement and transferred the same day to Kent Institution where, on the oral instructions of the director, they were placed in segregation in H unit. The following day the director orally reaffirmed his instructions to segregate the prisoners. In his affidavit the director deposed that the reason for segregation was that the prisoners, ‘if returned to normal association at the said Kent Institution before the disposition of the charges resulting from the incident, represent the probable introduction of an unsettling element into the general population of the said institution.’141

Cross-examination of the director on his affidavit revealed that within a week of the oral instructions to segregate given on 29 July, he looked into the matter personally to satisfy himself that there was a need to continue the segregation. McEachern CJ summarized the cross-examination: ‘It is fair to say that the main basis for placing and keeping these petitioners in segregation is because of allegations yet to be decided in court that they were involved in an incident at Matsqui Institution. [The director] also agreed that it was his intention that these petitioners would remain in segregation until the charges against them were decided one way or another .’142 The director conceded that he had never spoken to the crown prosecutor or the police about the charges and, apart from speaking to the director at Matsqui, did not conduct a detailed inquiry into the circumstances surrounding the incident. Although he had talked to the two prisoners, he had not visited them in the segregation unit nor had he examined their institutional files.

The two prisoners had first been segregated on 29 July 1980. Their case was reviewed by the Kent Segregation Review Board using the following criteria: ‘the suitability of the inmate to be restored to normal association, impact on the inmate population, and a general standard of maintaining good order and discipline in the institution.’143 In the August and September reviews the board recommended that the prisoners remain in segregation. In the October review, however, it was recommended that they return to the general population. The director declined to accept this recommendation. Referring to both prisoners, he explained his decision by saying, ‘This inmate was involved in hostage-taking at Matsqui for which he is now awaiting trial.’144 The board continued to recommend that the two prisoners be returned to the general population; but in his evidence at trial the director stated that it was his present intention to leave them in segregation at least until the disposition of the charges against them. ‘The director was asked by counsel for the petitioners, ‘What do Mr Cardinal and Mr Oswald have to do to satisfy you that they can be returned to normal association?’145 The director answered:

I am afraid that at the moment there is nothing that either one of them can really do but to continue their good behaviour and to demonstrate that they should be released. I accept the statements in respect of their continued good behaviour in segregation. This certainly is an important consideration so far as I am concerned. but -again, as far as I am concerned -I have to take into account the seriousness of the incident in which they are alleged to have been involved, and that is the thing that has weighed most heavily in my decision-making process at the moment. 146

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