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How would such a criterion operate in practice? Case F is illustrative. Information was received from two prisoners that several other prisoners were planning an escape attempt involving the taking of prison guards as hostages. The informants were interviewed initially by the assistant warden (who was also the chairman of the Segregation Review Board). They described the nature of the plan and the location of several caches of weapons, holes in cell walls which had been lightly plastered over, and wire-cutting equipment. This information was corroborated by investigation and discovery of the caches and security breaches. As a result the prisoners who were alleged by the informants to be involved were placed in administrative segregation. No internal disciplinary charges or external criminal charges were laid against them. Having regard to the legal prerequisites for conviction of attempted escape or attempted forcible confinement under the Criminal Code, it is clear that criminal charges could not properly have been laid, since the acts were merely preparatory. Even though a charge could have been laid under the much broader categories set out in the Penitentiary Service Regulations, which include doing 'any act that is calculated to prejudice the discipline or good order of the institution,'19 the practice of the penitentiary authorities is not to proceed before an internal disciplinary court if the primary evidence is that of a prisoner informant. This practice is based on the desire to protect the identities of informants in order to prevent reprisals against them and to ensure their future availability as sources of information. In addition, the commissioner's directives relating to the hearing of disciplinary offences require that all evidence be given in the presence of the prisoner and that he be given an opportunity to cross-examine all witnesses.20 Both of these requirements could not be satisfied if the identity of the informant is kept from the prisoner charged with the offence.

The dilemma for both the prison administrator and the accused prisoner is acute. The institutional authorities receive information which after careful scrutiny they view as reliable and which reveals a serious threat - as in case F - to institutional security and the safety of penitentiary staff. However, because of the constraints of the standard of formal proof in criminal prosecutions and because of the desire to maintain prisoner informants' anonymity in an internal disciplinary proceeding, they cannot lay charges against the prisoner involved. For the prisoners, the lack of specific charges and of a forum in which they can confront their accusers, test the reliability of the evidence against them, and present evidence on their own behalf means that they are deemed guilty of the wrongdoing without even the barest rudiments of a trial and that they may be subjected to segregation for a longer period than if formal charges had been laid against them and a conviction duly recorded. The unfairness to the prisoners under these circumstances persists during their segregation. As I have pointed out, the lack of specific allegations means that the prisoner has no notice of what is required of him in order to dissipate the threat he is deemed to pose. The fact that the institutional authorities are not required to articulate the details of the wrongdoing means that the review may be based not on any specific acts but on the generalized threat the prisoner is deemed to present. To hold in check this tendency to rely upon these generalized perceptions, the code requires evidence of a serious and immediate threat to the physical security of the institution or to the personal safety of staff or prisoners.

In case F, initial segregation would be justified under subsection l(a) because the penitentiary authorities are warranted in conducting a thorough investigation in order to ascertain whether further evidence might be found to justify charges being laid against the prisoners. Once it was ascertained that none could be found, further segregation would be justified under section 3 only if it could be established beyond a reasonable doubt that the prisoners were involved in a violent escape plan and that, notwithstanding the discovery of the escape plan and security breaches, they continued to constitute a serious and immediate threat to security or the safety of others. Relevant considerations would be the extent of the planning, the likelihood of the existence of an alternative plan, the previous involvement of the prisoners in violent escapes or hostage-takings, and their prior behaviour in Kent Institution.

The nature of the change that the standard-of-proof provisions of section 3 would bring about to existing segregation priorities can be seen by examining another case that has recently come before the courts, the Morin case. After the killing of a prisoner in Le Clair Medium Security Institution Rejean Morin and two other prisoners, Cousineau and Blanchette, were transferred on 22 September 1980 to Laval Maximum Security Institution and were placed in segregation. On 2 October 1980 Cousineau pleaded guilty to the offence of manslaughter and received an eighteen-year sentence. On 5 December 1980 Morin was transferred to the special handling unit of the CDC. He was advised by the director that he was there because of his involvement in the murder. On 30 May 1981 Morin was acquitted of the murder charge after a trial by a superior court judge and jury. He was not released from the SHU, however. The National SHU Review Committee determined that in light of all the facts at their disposal, Morin was a 'particularly dangerous inmate' within the SHU criteria. In making that determination the review committee took into account a statement made by the deceased before he died which implicated Morin, Cousineau, and Blanchette; a statement allegedly made by Cousineau to police officers implicating Morin; a~d a statement by Blanchette implicating Morin and Cousineau. At Morin's trial, the statement by the deceased prisoner was not admitted into evidence because it did not meet the requirements of a 'dying declaration' (one of the recognized exceptions to the exclusion-of-hearsay rule); Cousineau's statement was not admitted into evidence when Cousineau testified that he had never made any statement implicating Morin and had never signed the document alleged to be his statement. Blanchette gave evidence at the trial consistent with his prior statement implicating Morin.

In his affidavit in response to Morin's application for certiorari to quash the decision to keep him in SHU, Deputy Commissioner Sauvé, the chairman of the SHU Review Committee, recited the evidence he and his committee had relied upon, and stated;

I am aware of Mr Morin's acquittal, however notwithstanding this acquittal and the fact that some of the documents filed as exhibit 1-4 to 1-8 of my affidavit (especially 1-7) [Cousineau's alleged statement] may not have been admissible in a court of law within its legal process of punishing a crime and accepting evidence through the conditions set forth by the Canada Evidence Act, my decision was an administrative one following an entirely different process and purpose and I do not feel that I have to believe beyond any reasonable doubt that Mr Morin is guilty of the murder of Mr Payeur which evidently he is not before I consider him a dangerous inmate as per CD 274. 21

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