Bill C-56, proposing changes to the Corrections and Conditional Release Act, S.C. 1992, c.20 (“the CCRA”) applies somewhat independent, but probably ineffective, review to the administrative segregation process.
See full text of the Bill at http://www.parl.ca/DocumentViewer/en/42-1/bill/C-56/first-reading
Why is the Bill ineffective?
- The Code
The Bill maintains a system where Correctional Service of Canada (“CSC”) decision-makers take decisions subject to interests and pressures that may be irrelevant to the lawful grounds for segregation.
The central actor in the segregation process is the Institutional Head (the Warden) or their delegate.
Under the Bill, this person will retain the power and obligation to take decisions to maintain prisoners in segregation, initially after 21 days and. down the road, after 15.
More timely than previously, sure, but the decision remains in the hands of an individual who is part of a system – a system that, historically, defaults to keeping the person locked up.
Wardens do not work in a vacuum. They are subject to a number of administrative and “political” considerations when deciding whether to release an inmate from segregation, for example:
- Staff attitudes toward the inmate (including union views), particularly where the prisoner has been involved in negative interactions with staff members;
- Security staff recommendations, which tend to be very cautious, deferring to very strict views of safety and security;
- Financial or population management ( cell space/placement) considerations that make movement of the segregated inmate difficult or inconvenient.
As well, there can be a “message” component to segregation – where the purpose of placement and of continued lock-up is to indicate, to the prisoner in question and to the inmate population in general, that some type of unacceptable behavior will not be tolerated.
This arises from the “code” that overshadows most staff and prisoner interactions. The idea is that staff should not show weakness lest, in future, prisoners presume they can get away with inappropriate actions.
There is one other factor affecting Wardens, perhaps the most telling – the spectre of a decision going wrong.
If the prisoner is released and this results in harm to anyone, even with no apparent relation to the reason he/she was placed in segregation in the first place, the Warden will be accountable, or at least will appear accountable, and the public image of CSC may suffer.
This will not be the case to the same degree for a person who is truly independent of the system. Judges, for example, take decisions with significant insulation from operational accountability and censure. Even though they often defer to administrative expertise, they are able to take unpopular decisions where the law requires, without fear of prison staff, or even public, approbation.
In sum, under the Bill, just as under the current law, the Warden is not independent enough to take contentious or risky decisions.
2. Lack of Teeth
Under C-56, the model of intervention by an “independent” reviewer appointed by the Minister, with the authorities set out in the Bill, is rather feeble.
C-56 envisages a kind of specialized ombudsman, with significant powers to review documents, conduct interviews and otherwise investigate, but with the authority only to recommend release.
Having worked for the Correctional investigator for 16 years, I am a fan of the ombuds method for most areas of complaint. I am skeptical, though, of the approach where segregation issues are involved.
There is no reason to believe that the reviewer, no matter how principled and informed, will succeed in changing a Warden’ mind on the hard cases armed only with the authority to recommend.
Moreover the proposals are weak in other respects.
The Correctional Investigator can make recommendations to the Minister whereas the proposed “reviewer’s” role seems to end at the Warden, except that her/his recommendations can figure in the annual report of the proposed “Senior Reviewer” – not much help to a person in the “digger” months previously.
Most important, in my view, the reviewer’s functions do not appear useful to the prisoner with respect to seeking legal remedies.
Where a prisoner is segregated, and, as often follows, where they are transferred to a higher security institution, they have the right to proceed directly to the Superior Court of their Province to seek habeas corpus – in essence to seek release from the segregation or the transfer.
The reviewer under C-56, if they have unsuccessfully recommended release from segregation, would be ideally positioned to provide useful information to the Court in reviewing segregation matters.
Here the reviewer would have conducted a thorough investigation into all facts leading to the segregation decision at issue.
They would be beholden to no institutional actors.
In particular, the reviewer would have access to the information that is withheld from offenders in segregation or transfer situations under ss.27(3) of the CCRA. This subsection permits Wardens to refuse to share information with inmates where the Warden deems this “strictly necessary” in order to protect safety or security interests.
They could therefore offer the Court useful advice, from an unencumbered perspective, into the justification for segregation and the fairness of the decision-making process.
As to confidential information, the reviewer could provide this to the Court, if necessary, without revealing withheld information to the prisoner. They might also convince the Court to share with the offender information that was improperly concealed from him under ss.27(3)
Thus prisoners, who currently must often attempt to contest allegations from which they are blindfolded, could be afforded practical support. They could know the case against them.
Unfortunately this potential role for the reviewer is prohibited by the proposed legislation.
Under C-56 reviewers may not disclose information arising from their reviews and may not appear as witnesses . Presumably as well their reports could not be introduced by either party to any litigation as this would be considered hearsay.
3. …by any other name…
As the Bill reads, the reviewer system applies only to the formal system of segregation set out in the CCRA and not to other situations that constitute de facto segregation.
Special needs units and mental health units, as alternatives to segregation will certainly involve some degree of involuntary confinement where residents should be able to contest their placement. If the placement/reviewer process is not attached to these situations then the process can be avoided simply by “releasing” segregated prisoners to these units.
And so, the Government must introduce review with the power to actually resolve cases. This might be effected by a Judge, as was suggested in the 1996 review of segregation by Michael Jackson, but at least by a person not encumbered by accountabilities and loyalties to the administrative system.
Failing this, government must at least permit reviewers’ investigations and findings to be considered when truly independent review takes place before the Courts.
Without such options C-56 is very attractive curtains, and a nice flower pot.