2. Review of Segregated Status

Sections 33 and 34 of the CCRA provide a statutory mechanism to monitor the involuntary administrative segregation of prisoners. However, our experience has been that this mechanism has been completely inadequate to ensure compliance by CSC with the statutory criteria for placing prisoners in administrative segregation. This was also the conclusion reached by Madam Justice Arbour during the Commission of Inquiry. Based on the evidence she heard, including evidence from the Correctional Investigator that, in the "vast majority" of cases, Arbour found that prisoners were not in segregation in accordance with the statutory criteria. Moreover she indicated that:

"In terms of general correctional issues, the facts of this inquiry have revealed a disturbing lack of commitment to the ideals of justice on the part of the Correctional Service. I firmly believe that increased judicial supervision is required. The two areas in which the Service has been the most delinquent are the management of segregation and the administration of the grievance process. In both areas, the deficiencies that the facts have revealed were serious and detrimental to prisoners in every respect, including in undermining their rehabilitative prospects. There is nothing to suggest that the Service is either willing or able to reform without judicial guidance and control" (p. 198).

Because of the misuse of segregation by CSC, Madam Justice Arbour concluded that after prisoners have been segregated for a specific length of time, a review of the prisoner's segregated status should be conducted by decision makers who are independent of CSC. She proposed two models, both of which would require an amendment to the CCRA.

In response to those recommendations of the Arbour Commission, CSC set up a Segregation Review Task Force. As part of their work, the Task Force considered the possibility of using independent decision makers to review the use of segregation. All except 3 of the 20 Task Force members were CSC employees or former employees. After initially rejecting the notion, all CSC members of the Task Force ended up supporting outside scrutiny of the use of segregation. All 3 non-CSC participants favoured it. During the Task Force, a consultation with persons from agencies outside CSC was held. All of the participants in the consultation favoured independent adjudicators/decision makers.

The first model proposed by the Arbour Commission was one that included the stipulation that CSC must seek authorization from the court to prolong any period of segregation in excess of 30 continuous days, or in excess of 60 aggregate days in one year. The alternative model proposed by the Arbour Commission would involve a five-day review by an independent adjudicator, likely a lawyer, of all segregation decisions. The independent adjudicator would also be required to provide reasons for any decision to maintain a prisoner's segregated status. Further segregation reviews would have to be conducted every 30 days by a different independent adjudicator.

The essential feature of both of the models proposed by the Arbour Commission is the independence of the adjudicator. The adjudicator would therefore also be the individual who makes the decision to continue the deprivation of the prisoner's residual liberty within the confines of the prison.

3. Conditions of Confinement in Administrative Segregation

Too many prisoners are confined in administrative segregation for several weeks, months, even years. Prisoners in administrative segregation are distinguished in the CCRA from those who are in punitive dissociation (ie. those for whom segregation is imposed as the penalty for an institutional offence). Pursuant to s. 44, the maximum period of punitive segregation that may be imposed as a penalty is 30 days.

Prisoners may be placed in administrative segregation on either a voluntary or involuntary basis as a result of a determination that they cannot be integrated into the general population. Those prisoners who have cooperated with police or prison investigations frequently seek to be voluntarily segregated for their own protection. CAEFS' maintains that s. 33 confinements in administrative segregation must not be arbitrary. Rather, such confinement must be justified on a legal basis in accordance with statutory legal criteria.

Statutory limits on the use of segregation are necessary because of the harshness of the conditions of confinement. Madam Justice Arbour described the effects of administrative segregation as follows:

"A number of studies have noted the additional impact of the treatment of inmates while in segregation. These include negative interactions with staff, frequent violation of the rules and regulations governing detention in segregation, and the uncertainty of release for inmates held in administrative segregation. The findings I made earlier support the conclusion that prolonged segregation is a devastating experience, particularly when its duration is unknown at the outset and when the inmate feels that she has little control over it" (p. 187).

Section 37 stipulates that prisoners who are subjected to administrative segregation must be provided with the same rights, privileges and conditions of confinement as those who are imprisoned in the general population of a prison. The only exceptions in terms of access to such entitlements involve those activities which can be enjoyed only in association with other prisoners, or which cannot reasonably be provided based on the constraints of the physical area, or because of "security requirements".

The term, "security requirements", is not defined in the CCRA. It is a vague concept which is prone to arbitrary interpretation and application. For instance, "security requirements" have been used to deny prisoners in administrative segregation such fundamental entitlements as their rights to counsel and recreation (ie. one hour of outdoor recreation/exercise per day). The most usual "security requirement" cited by prison administrators is staff shortage which result in a lack of available staff to provide supervision in the prison (ie. for recreation) or in the community (ie. for escorts). As such, CAEFS submits that "security requirements" as a concept is too vague and provides no articulable standard against which the restriction of prisoners' entitlements can be measured.

Furthermore, despite the legal requirement that CSC must provide prisoners with access to the same entitlements as those enjoyed by the general population, the physical design of segregation areas makes it almost impossible in practice. As a result, access to such entitlements are generally not provided to, much less exercised by, prisoners. This is true even for administrative segregation areas which have been constructed since the enactment of the CCRA. In the new women's prisons, for example, there are no program areas, gymnasiums, recreation areas, workshops or classrooms in the "enhanced" segregation units. Prisoners in administrative segregation therefore spend most of the time isolated in their cells. This is obviously contrary to the intention of Parliament when it enacted s. 37, as the section plainly aims as much as possible to preserve for segregated prisoners the entitlements of the general population.