Many of my cases deal with habeas corpus applications where a client has been transferred involuntarily to higher security (or is under consideration for transfer) because of suspicion of their involvement in an assault, drug transaction or other serious incident.
It’s difficult, I know, to get counsel in such a situation. Where Legal Aid is available at all, the holders of the purse often have pretty strict criteria for access to a certificate, sometimes involving unfortunate delays. Otherwise, paying for a lawyer can be beyond the means of many prisoners.
In order to increase the possibility of Legal Aid, or in order to reduce paid counsel’s time and billing, there are steps that prisoners can take up front, before the courts and the lawyers become involved. In fact, by following some steps, a prisoner might even win his/her case by internal means in the early stages of the matter.
Try these measures:
1. As soon as you are detained (normally in segregation) for a suspected misbehaviour, begin to ask questions of staff including the Warden ( or his representative). They must provide reasons for your segregation within a working day of your confinement. Commissioner’s Directive 709 describes the information to be provided as follows:
1. Full description of the incident or circumstances leading to the consideration of placement in segregation
Give specific details of reasons why you are segregating the inmate (e.g. who, what, when, where, why?) as well as linking to the legal grounds for placement. Include any historical information or consultation that may have occurred that contributed to the eventual placement in segregation (i.e. Case Management Team, Psychologist, Security Intelligence Officer, etc.).
Once you receive this initial notice, be prepared to ask questions and to seek documentation of the reasons for segregation, which may well become the rationale for an involuntary transfer.
- Ask for the specific reasons, the actual behaviours, that led to the determination that you should be removed from the population. It does not suffice to say that you would be a danger, or would be endangered ,in population. That is simply reciting the Act 
- Ask for copies of any observation reports, Officer’s Statements, security reports or other reports that disclose why you are suspected of engaging in the bad conduct, or planning to do so.
The process of segregation/transfer can go on for weeks or even months. You will probably not receive a complete version of the accusations against you until the “fifth day” segregation review by the Institutional Segregation Review Board, and often later than that.
Keep asking for information. Keep asking for explanations about what you receive.
What you need includes the following (at least):
- an video tape or other electronic recording of the incident (e.g. a fight on the range) that led to the segregation and transfer proposals
- any recording of other behaviour that led staff to conclude that misbehaviour would take place, or already had taken place (e.g. meetings with other prisoners, entry into the area where an assault took place etc)
- all reports that the institution is using to back up its accusations, suspicions etc. Segregation Review Reports and Assessments for Decision are usually not enough. They usually describe conclusions, not the facts on which these are based. Ask for copies of any reports that describe what happened or any conversations or other sources of information, that occurred before or after the incident, that are being used in support of transfer recommendations
- the opportunity to inspect any physical evidence that is being used in support of the institution’s case – e.g. weapons, drugs or alleged drug containers/equipment, substances (including blood) and the documents that link the physical evidence to the institution’s accusations (” the chain of evidence”)
Some or many of the documents that you receive will be redacted – names or other information will be deleted. Normally staff will say that this is being done to protect informants or to ensure that an on-going investigation is not compromised by your knowing some of the information.
Question these deletions . Ask if it was necessary to remove all that was removed for safety, security or investigative purposes. Often, for example, it may be possible to indicate the contents or circumstances ( when and where they occurred) of an informant’s declarations without identifying them. Such information may help you to refute the information.
Keep a written record of your conversations or other interactions with staff or other prisoners as time goes on. Indicated the time, date and location of any of these interactions. This could provide evidence that might assist your case – e.g. contradict information that has been provided in reports.
Just before the end of the involuntary transfer process you will receive a Notice of Involuntary Transfer and you will be given the chance to “rebut” all of the information in support of the proposed transfer that is contained in the notice.
This is a vital part of the process. The Warden, before making a decision, is required by the Act to provide you with:
all the information to be considered in the taking of the decision or a summary of that information.
You are entitled to a reasonable time (at least 48 hours) to consider the information and to make representations to contest the proposed decision.
Further, the Warden must consider in his/her reasons for the ultimate decision, your representations and must provide you with:
all the information that was considered in the taking of the decision or a summary of that information.
Again, any information deleted was be for legitimate purposes. In fact, at this juncture, the Act provides that deletion of information must be “strictly”necessary for safety, security or investigative purposes.
In your representations prior to the Warden’s decision, be thorough. Point out any information provided that does not lead to the conclusions and recommendations provided by staff.
As well, point out any information (reports, recordings, physical evidence) that was not provided as part of the transfer notice. Ask to see this.
If the decision is to transfer you, be prepared to make file a third level grievance within 30 days of the decision. In your grievance point out all arguments that show that the transfer was not justified. As well, point out any information that should have been provided to you but was not.
If you have been careful to seek and record information, it may be that this will help if the matter goes to court – habeas corpus or judicial review based on your third level grievance reply. A lawyer will be better able to assist you in a timely manner if you provide him/her this record of what happened up to the transfer decision. As well, a good record may help you or your lawyer to acquire a legal aid certificate.
Note: The above is no substitute for acquiring legal representation or advice. There can be complex questions of fact and law that apply to these cases and a lawyer is best able to identify and deal with these. The earlier you can consult or retain a lawyer the better. If you can’t get a certificate and don’t have enough money to hire a lawyer, you can call a lawyer and ask them for some informal advice. As well, many provincial bar groups (e.g. the Law Society of Upper Canada in Ontario) have provisions for informal advice. Finally, some provinces have Duty Counsel who visit institutions and can provide advice without a legal aid certificate. Ask to speak with duty counsel the next time they are in.
 Corrections and conditional Release Act, S.C. 1992, c.20 (the CCRA) at s.31
- (a) the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person and allowing the inmate to associate with other inmates would jeopardize the security of the penitentiary or the safety of any person;
- (b) allowing the inmate to associate with other inmates would interfere with an investigation that could lead to a criminal charge or a charge under subsection 41(2) of a serious disciplinary offence; or
- (c) allowing the inmate to associate with other inmates would jeopardize the inmate’s safety.
 CCRA ss.27(1)
 CCRA ss.27(2)