If continued segregation is authorized by the hearing officer, further reviews would be required every week, subject to the same procedural requirements. At these reviews an onus would be placed on the institution to develop a plan to reintegrate the prisoner into the population, and the hearing officer would monitor that plan at any subsequent reviews. Except under very limited circumstances, segregation would be terminated after a ninety-day period.

One further feature of these proposals was part of my original scheme for the hearing of serious disciplinary offences: the prisoner is to be allowed representation by counselor counsel-substitute. This feature has not been accepted by the Correctional Service in relation to the hearing of serious disciplinary cases. While I maintain that the original reasons for advocating the right to counsel in relation to this kind of case still remain valid,29 an even stronger case can be made for representation in the administrative-segregation process. Many of the cases that the institution views as justifying segregation (and which under my proposed criteria will still permit segregation), involve a situation where the prisoner has been or may be charged with a criminal offence. Since the circumstances surrounding the alleged offence will be critical in the hearing officer's assessment of whether there is a need for segregation or its continuation, the prisoner needs to be advised of the implications of his giving evidence of the circumstances surrounding the alleged offence and what protection against self-incrimination (such as the provisions of the Canada Evidence Act and section 13 of the Charter of Rights and Freedoms) might be available to him. Furthermore, the thorny issue of confidential information is clearly a matter on which counsel could be expected to make a more informed presentation than a lay person. Counsel's presence on a case-by- case basis is also likely to ensure that real substance is given to the criteria and that they do not degenerate into a semantic substitute for 'the good order and discipline of the institution.' Indeed, based on experience in the United States, this case-by-case participation by counsel is likely to be more effective in bringing the rule of law to bear on the prison than the necessarily intermittent nature of judicial review. Jacobs, in his study of Stateville, commented on the cumulative impact of the intrusion of lawyers into the decision-making process in the prison. He concludes:

It is not victory in great judicial decisions that constitutes Prison Legal Services' [a public-interest group which provides lawyers for inmates] greatest impact on Stateville. It is the PLS members' daily presence at the prison, their persistent questioning of the rules, their relentless demands to see files and records, and the fear they invoke in the hearts of many of the prison staff that has the most profound effect on the day to day administration of the prison. Somehow the prison authorities must find a way to accommodate these lawyers and law students who so doggedly camp on the doorstep.30

One further consideration argues in favour of representation by counsel. The segregation experience cuts the prisoner off from association with most other prisoners, and is calculated to undermine the prisoner's ability to present any defence to a case involving the evidence of other prisoners. Counsel would be able to interview these potential witnesses and limit the prisoner's impairment in this regard. Of course, to the extent that the conditions in segregation remain unchanged, the effect of confinement is itself likely to impair substantially the prisoner's ability to make a proper presentation of either himself or his case. Here again, representation by counsel is a necessary adjunct to a fair hearing.31

The issue of the role of counsel in ensuring a fair hearing has already come before the courts in the context of parole revocation and disciplinary- board hearings. In Dubeau v. National Parole Board32 Réné Dubeau's parole was suspended, ostensibly because he had violated a parole condition by obtaining a credit card without his supervisor's permission. In addition, while on parole Dubeau had been arrested on a new criminal charge entirely unrelated to credit cards. Pursuant to the provisions of the parole regulations, Dubeau requested a post-suspension hearing. At that hearing, after being asked some brief questions dealing with credit cards, he was questioned about the new criminal charge. He denied committing the offence and requested that his lawyer be allowed to appear with him at the hearing. The request was refused. At the hearing, he answered some questions about the charge, but he refused to discuss a written statement apparently given by him to the police. Upon the revocation of his parole, Dubeau brought application for certiorari in the Trial Division of the Federal Court of Canada to quash the revocation order on the ground that the board had acted unfairly by denying the applicant's request to have counsel present during questioning about pending criminal charges. Smith D J, citing the decision of the English Court of Appeal in Fraser v. Mudge33 to the effect that fairness did not require that a prisoner appearing on a disciplinary charge before the Board of Visitors have the right to be represented by counsel, distinguished that situation from a parole revocation. He held that, at least where there were issues involving participation in criminal offences which would be highly relevant to a revocation decision by the Parole Board, fairness did require the presence of legal counsel where it was requested. Smith DJ distinguished the two situations on the basis that the rationale for the denial of the right to counsel in prison disciplinary matters in Fraser v. Mudge was that there was a need for swift and speedy decisions, and legal representation would give rise to considerable delay. In the case of parole revocation, the need for a quick decision is not as great or as important as in a prison disciplinary case.

Page 3 of 5