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Counsel for the prisoners sought to characterize this decision-making process:

Q And so ultimately it comes down to ...your instinct in terms of what might happen if they are released to population.

A I’m 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’:

Q 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?

A No, but that is my judgment.

Q But the judgment is not based on any specific factual matters?

A No, 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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