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Following the McEachern judgment in Oswald and Cardinal, Kent Institution issued new internal rules governing the procedures for the Segregation Review Board:

The Segregation Review Board is responsible to ensure that the act of segregating a prisoner for administrative causes will be carried out humanely and properly according to the Regulations and Directives of the Correctional Service of Canada; and particularly to ensure that no prisoner so segregated shall undergo undue hardship as a result of such segregation; and to ensure that no such segregated prisoner shall remain segregated longer than is necessary for the peace and good order of the institution or than is required to serve his own best interests. 162

Permanent members of the board are the assistant warden / security (or his representative), the living-unit development officer for G and H units (protective-custody cases are kept in G unit), and the psychologist. The instruction provides for informal review of all prisoners held in administrative segregation once a week by the living-unit development officer attached to G and H units. That officer is required to report verbally and in writing to the chairman of the Segregation Review Board on a number of matters: whether the prisoner wishes to appear before the monthly review board, how long the prisoner has been segregated, the reason for his segregation, when his case was last reviewed by the board, his apparent state of health and his needs, his administrative status, and any other matter concerning the prisoner and bearing on the functions of the Segregation Review Board. The living-unit development officer is also required to report to the chairman within twenty-four hours the case of any newly segregated prisoner and to recommend a time and place for an emergency hearing within forty-eight hours whenever it appears that there may not be a substantial reason for such segregation. 163

The internal rules further provide that the full Segregation Review Board is to meet for at least one formal hearing every four weeks to review the case of every segregated prisoner, to interview any segregated prisonef requesting to appear before it, and, at the discretion of the chairman, any other segregated prisoner. The board is directed ‘in each case to reduce any anxiety in the prisoner’s mind about reasons for his segregation, its likely duration, and any other relevant matter of consequence to the inmate, such as the date of his transfer, release from segregation, the Board’s recommendations, etc.’164 Furthermore, the board is directed to ‘try to assess the needs and psychological state of the prisoner, and take them into consideration when formulating its recommendations.’165 The board is also to consider the institutional psychologist’s report on every prisoner segregated for more than thirty days.166 Within three days after every board review, the chairperson is to report in writing to the warden on the board’s recommendations and rationale for every case that has been reviewed. Where it appears desirable, the chairperson may first report verbally to the warden so as to apprise him of any urgent need for more immediate action concerning a segregated prisoner. 167

It is already evident that in the world of corrections, drafting new policies on paper does not necessarily bring any change in carceral practices. The conditions under which prisoners are segregated in H unit seem to have changed little from those existing at the British Columbia Penitentiary after the McCann decision, despite the new building. Has the new temporary instruction, coming in the wake of Oswald and Cardinal, resulted in a fair segregation process?

Since the new instruction was issued I have sat in as an observer on two monthly meetings of the Segregation Review Board at Kent Institution. The board was chaired on the first occasion by the institutional psychologist and on the second occasion by the assistant warden / offender pro- grams, who normally sits as the chairperson. Also in attendance were a representative of the assistant warden/ security, the security officer in charge of H unit, the living-unit development officer assigned to the unit and a representative from regional headquarters. This last official’s function was to report in accordance with the commissioner’s directive to regional headquarters on all cases of prisoners segregated for more than sixty days. The meetings were conducted informally. They began in the absence of the prisoner, with the chairperson giving a resume of the prisoner’s segregation history together with a recital in broad terms of why the prisoner was segregated. The security officer in charge of H unit was asked if there had been any problems with the prisoner while he was in H unit. The prisoner was brought in and asked if he had any questions to raise with the review board. Several of the prisoners asked to be told in specific terms why they were in segregation. The chairperson usually responded to this question in a very general way, even though in most cases the segregation had resulted from specific incidents. In one case where the prisoner was believed to have planned an escape attempt involving the taking of hostages, he was told that he was in segregation ‘because of an investigation being carried out in which you are accused of having something to do with the security of the institution.’ In no case was there any presentation of any evidence to substantiate the need for segregation and, not surprisingly, the prisoner was never invited to dispute the evidentiary basis for his segregation (assuming that he was even aware of that basis). The prisoner was then asked to leave and discussion ensued among the board members concerning the recommendation to be made. It did not appear from my observations that what the prisoners had to say made any difference to the board’s decisions. Indeed, it was clear that neither the prisoner’s views nor anyone else’s would have influenced some of the board members. For example, the representative of the assistant warden/security informed the chairperson that before coming to the review board he had been instructed by his superior to oppose the release of particular prisoners from segregation. Under these circumstances it is difficult to conceive of any real review of the case.

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