Counsel for the prisoners sought to characterize this decision-making
so ultimately it comes down to ...your instinct in terms of what might
happen if they are released to population.
not sure that I really like the word ‘instinct’. I think it is more my
measurement of whether the situation is appropriate in relation to the
dynamics of the institution.147
Counsel for the prisoners explored with the director the
basis for the ‘measurement’:
So there [are] no specific facts pertaining to Mr Cardinal and Mr Oswald
upon which you say that their release might lead to or introduce an unsettling
element into the population?
No, but that is my judgment.
But the judgment is not based on any specific factual matters?
that’s correct. 148
Later in his cross-examination, the director agreed that
his judgment might have been ‘purely a gut reaction.’149
At the time of the prisoners’ application for habeas
corpus they had remained in H unit for some five months. As McEachern
CJ pointed out in his reasons for judgment, the director’s intention to
keep the prisoners in segregation until the resolution of their criminal
charges meant that continued segregation could be measured ‘not just in
months, but rather in years.’150
In their affidavits, Oswald and Cardinal alleged that their
‘continued dissociation in solitary confinement [was] having an adverse
effect upon [their] physical and mental well-being and [their] ability
to adequately instruct counsel to prepare full answer and defence to the
pending charges.’151 Although the director
disclaimed any interest in attempting to persuade the petitioners to plead
guilty to those charges, he admitted that prisoners do not like segregation
and will do anything they can to be released.152
If the prisoners were to be acquitted of the charges, the director said,
he would review the cases in light of that reality. If they were convicted
he might request that they be transferred to a special handling unit.153
The evidence in this case shows a disturbing correspondence
to the evidence already set out regarding the rationale for segregation
of several of the plaintiffs in the McCann
case. The phrase ‘pending disposition of outstanding charges,’ the counterfeit
coin in the currency of a rational segregation decision-making process,
has survived as a general justification for segregation in H unit just
as it had in the penthouse at the British Columbia Penitentiary. At Kent,
however, one new element influences decisions to segregate and was no
doubt operative in the Oswald and Cardinal case.
Under the commissioner’s directives no prisoner may be transferred to
a special handling unit unless that prisoner is already in administrative
segregation in a maximum-security institution. If the director had adopted
the recommendation of the review board to transfer the two prisoners into
the general population, in the event of their conviction on the charges
of forcible confinement of a prison officer, he would not have been able
to seek their transfer to a special handling unit. This case clearly demonstrates
the perversity of this requirement and the extent to which it is calculated
to negate individual assessment of the need for segregation.
The prisoners in Oswald and Cardinal
sought their release from segregation through writs of habeas corpus.
This was an unprecedented use of the writ, which, according to the conventional
wisdom, had been thought to be restricted to situations where the release
of a prisoner was sought from custody; counsel for the crown argued that
it was not available except to gain the complete liberty of the applicants.
McEachern CJ rejected this argument:
In the evolution of society, different
forms of detention arise from time to time. Actually these forms of detention
have always been with us, but they are only now being examined. Habeas
corpus (with or without certiorari
in aid), as the bulwark of our liberty, may be an appropriate, and possibly
the only appropriate means by which the court, in proper circumstances,
may scrutinize the different forms of detention to which our citizens
may be subjected.
The principle of a prison within a prison
has been mentioned in The Law of Habeas Corpus,
1976, by R. Sharpe at p. 149 where that learned author said: ‘The situation
may be seen as a prison within a prison and the applicant is simply released
from the inner prison while being kept within the confines of the outer
one ...’ Dickson J ...supports this principle in Martineau
v. Matsqui Institutional Board (No. 2).154
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