The overriding objective of the Task Force is to recommend changes to the administrative segregation process that will improve the effectiveness and fairness of decision-making, in order to ensure that inmates, who must be kept from associating with other inmates for limited periods of time are segregated in a safe and humane fashion; that they are subject to the lowest level of restraint necessary, in accordance with a fair and reasonable decision-making process; and that they are returned to the general inmate population at the earliest appropriate time.

The Task Force has determined that this objective can best be achieved through the blending of the implementation of an enhanced segregation review process and experimentation with independent adjudication.

As a preliminary caution, the Task Force must note that the enhanced model and the experimentation with independent adjudication proceed from assumptions about fairness and justice conceived within a non-Aboriginal perspective. The Aboriginal Justice inquiries conducted over the last decade have made it clear that many Aboriginal people do not share these assumptions and do not benefit from the framework of due process built into the law. The necessity to build upon distinct Aboriginal conceptions of justice is addressed later in this report.

(a) The Enhanced Model

In order to more permanently address the deficiencies that have been identified through the audit process and the issues raised by Madame Justice Arbour and other stakeholders, fundamental enhancements must be made to CSC`s segregation review process, based on the following principles:

• CSC acknowledges that the placement of inmates in the general inmate population is the norm, as is the provision of adequate protection, control, and programs and services to inmates who cannot be maintained in this population (CCRA, s. 4(d); Mission (1.5)).
• CSC has a specific obligation to ensure that procedural safeguards are stringently followed, that decisions are not made arbitrarily and that every effort is made to remove inmates from administrative segregation at the earliest possible opportunity (CCRA, s. 31(2), CD 590, para. 9(f)).
• Any decision that is made to place, or retain, an inmate in administrative segregation can only be justified if one of the criterion defined in the CCRA applies and when no other alternative to administrative segregation exists (CCRA, s. 31(c)).

The Task Force has identified eight elements that are required to enhance the segregation review process (see Figure 1).

1. A standard operating procedure should be developed and adopted, outlining the roles and responsibilities of all parties involved in the administrative segregation process in the context of the relevant statutory, regulatory and policy provisions. Staff members and managers must be held accountable. Steps should be taken to include compliance with the law as a key factor in the staffing, promotion and performance review processes.
2. A continuous education initiative must be targeted at staff members and managers with direct responsibilities for administrative segregation. The initiative must include training on the distinct legal rights of Aboriginal people and, more specifically, on their access to spiritual/cultural possessions and support, and the need to continue the healing process identified in the Correctional Plan. Further, training on changes to the OMS with respect to the administrative segregation process must be immediately provided to all users that are involved in the process.
3. Institutions with segregation units should review their initial informal approaches used to prevent or discontinue segregation, and explore other alternatives, such as formal and informal mediation mechanisms.
4. More formal and disciplined procedures for segregation review hearings should be adopted. The Task Force recommends mandatory certification for all chairpersons of Segregation Review Boards.
5. OMS should be recognized as the principal file of record.
6. A Regional Segregation Review and Transfer Board should be established in each region to expedite intra-regional transfers of segregated inmates. The Task Force also recommends that CSC create an Inter-Regional Transfer Board to arbitrate and effect transfers between regions.
7. Proposed changes to expedite the resolution of complaints and grievances initiated by segregated inmates should be integrated into the enhanced model.
8. Scheduled and random compliance audits should be performed on the segregation review process and the conditions of confinement in segregation units.

In implementing the recommendations, CSC will have to respect both Aboriginal and women offenders, and rely on input from both internal and external specialists and stakeholders.

(b) Roles/Authorities/Accountabilities

Section 3 of the CCRR establishes a central guiding principle underlying the roles, authorities and accountabilities of staff -

Every staff member and manager shall (a) be familiar with the Act, the regulations and every written policy directive that relates to the staff member’s duties; (b) perform the staff member’s duties impartially and diligently and in accordance with the principles set out in the Act and in the Mission of the Correctional Service of Canada, published by the Service, as amended from time to time; and (c) encourage and assist offenders to become law-abiding citizens.

There is a broad list of actions that must be taken to manage a segregated inmate from placement to release. The Task Force on Policy Review identified a need to combine policy and procedural guidelines related to segregated inmates into a comprehensive reference manual.

A draft reference document has been completed by the Task Force. Other reference material developed by the Task Force in support of assessment and audit activities together with this report, represent a comprehensive set of information to create a standard operating procedure for administrative segregation.

Consideration must be given to holding staff members and managers fully accountable. Steps should be taken to include compliance with the law as a key factor in the staffing, promotion and performance review processes. Respect for the "Rule of Law" demands that the principles of progressive discipline be applied when the law is violated.

(c) Continuous Education

In discussions with the Task Force, staff members and managers have clearly voiced their desire to participate in continuous education on the law, policies and procedures governing administrative segregation. These discussions have led us to conclude that:

• insufficient understanding of the "Rule of Law" exists among staff members and managers;
• insufficient support and training have been provided to staff members and managers to assist them in the effective management of the legal and policy provisions outlined in the CCRA, CCRR and Commissioner’s Directive 590 (Administrative Segregation); and
• insufficient legal education on the principles of administrative law and the principles enshrined in the Canadian Charter of Rights and Freedoms has been delivered to ensure compliance with the law and the adoption of fair decision-making practices.

The Task Force on Policy Review pointed out that CSC has a strong oral tradition and recommended that it capitalize on this tradition as a means of communicating the meaning and application of existing law and policy to line staff. It suggested that, if managers are well-trained and educated on the law and policy, and if they play a significant role as models and coaches, legal compliance can be achieved and sustained.

The Task Force acknowledges and encourages the work that is being undertaken to develop a legal education package for CSC. This provides the opportunity for CSC to develop constructive partnerships with organizations with expertise and experience in correctional law and its application (law schools; Canadian Bar Association; Indigenous Bar Association; Women’s Legal Education and Action Fund; etc.). It suggests that accelerated action be taken to provide training targeted at staff members and managers with direct responsibilities for administrative segregation.

This training should be reviewed, updated and provided to staff members and managers in the form of refresher training at a minimum interval of every eighteen months. This type of training must be incorporated into the Correctional Training Program. Consideration should also be given to holding one legal education session at the annual Senior Managers’ Conference.

Training on the legal rights of Aboriginal people should be developed and integrated into this legal education package. Four specific areas should be addressed:

• the rights of Aboriginal people to spiritual possessions while segregated;
• the need to continue any healing process that the inmate is pursuing through Aboriginal spirituality initiatives that have been identified in the inmate’s Correctional Plan;
• the continuous access to spiritual and cultural support provided by the Elder and the Native Liaison Officer; and
• access to spiritual ceremonies (e.g., sweat lodges).

Staff must fully understand and make full use of the OMS as the principle file of record. An action plan has been developed in conjunction with line staff and OMS specialists. The plan calls for the implementation of improvements to the Administrative Segregation Module. A training package has also been developed which brings together information on the use of OMS with information on the types of procedural data that are required to comply with the law and CSC policies and practices.

(d) Alternatives To Segregation - Mediation

The importance of intervention in order to pre-empt and provide early alternatives to segregation cannot be over-emphasized.

The Task Force suggests that informal approaches such as mediation be considered as a first step in dispute resolution, particularly in responding to requests for voluntary segregation. Most voluntary segregation cases stem from unresolved disputes involving individual inmates or inmate groups. The issues in dispute are often taboo subjects such as drugs, debts, or sexual activities which make it difficult, if not impossible, for inmates to discuss them freely with CSC staff members or managers. This often leaves staff members and managers in the position of bystanders, unaware of the real issues and unable to intervene in a meaningful way.

The Task Force saw cases where effective mediation was the immediate first level response to voluntary segregation when the institution had access to individuals who had the skill and willingness to play that role. The anecdotal evidence suggests that there can be a reasonable degree of success at reintegration, particularly when mediation efforts are undertaken immediately.

The effectiveness of mediators is determined by the level of respect that they hold or develop with the disputing parties, the respect that they have from management and staff, the access that they have to all parties involved, their capacity to honor confidentiality and their capacity to listen and communicate. Correctional history reveals that effective mediators can be staff members, contract employees (i.e. teachers, Aboriginal staff), community organizations and volunteers, members of the inmate population or members of groups such as the Inmate Welfare Committee and Native Brotherhood. It is also important to ensure that mediation occurs in Aboriginal and gender-sensitive ways. The Task Force recommends that the principles and practices of informal dispute resolution be endorsed by CSC and that a process of mediation be adopted at all institutions with segregation units to assist in the handling of voluntary segregation cases.

(e) Conducting Hearings

The Task Force has developed a Guide for Conducting Segregation Review Board (SRB) Hearings (see Annex 1). The guide describes twelve procedural steps that must be followed when conducting an SRB hearing.

The role of the SRB chairperson is critical to the effectiveness and perceived fairness of the segregation process. Chairpersons have the primary responsibility for ensuring that basic procedural requirements, as defined by the CCRA/CCRR and CSC policies, are continuously being administered in compliance with the law. They play a critical role in ensuring that each institution maintain full compliance with the requirements of the law and CSC policies. The chairperson must demonstrate an ongoing knowledge of the law, policies and procedures to effectively manage the Board’s decision-making responsibilities. They must be respectful of Aboriginal rights and privileges. They must understand the need to balance the legitimate safety and security of the institution with the need to adequately protect and maintain the rights of the segregated inmate.

The Task Force recommends that the chairperson of the SRB undergo specialized training in the context of a formal certification program.

This program should focus on administrative law and Charter principles, and knowledge of the CCRA/CCRR and CSC policy. Some jurisdictions in the United States have adopted such certification programs. Re-certification would be required on a regular basis. The Task Force suggests that the chairperson of the SRB be the Deputy Warden or an Assistant Warden, and consideration should be given to rotating the responsibility for this position.

The chairperson must have the authority and responsibility to ensure that a reintegration plan is implemented in the shortest possible time frame. The chairperson must also have the authority to recommend that the inmate be reintegrated into another institutional setting and must be provided with external decision-making support to act on such recommendations quickly. The Task Force acknowledges that SRBs currently have limited options available to them for reintegration into less restrictive populations. Enhanced effectiveness depends on the use of such reintegration options, and training must focus on their availability and use. The Task Force notes that initiatives have recently been undertaken at Kent Institution to provide a less restrictive environment for long-term, voluntarily segregated inmates.

The composition of the SRB should reflect an inter-disciplinary team approach. At the very least, the core composition of the Board should include the chairperson, the Unit Manager responsible for the administrative segregation unit, the Institutional Preventative Security Officer, and a Case Management Officer or Correctional Officer II. Depending on the sequence of the hearing (5- or 30-day), other participants should be identified as required; for example, the Psychologist, a representative from the Program Board (programs/pay), the Elder, Native Liaison Officer, etc.

The SRB should be playing a more significant role in determining and monitoring conditions of confinement. More specifically, the SRB should:

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• ensure that the segregated inmate is provided with a summary of basic rights and privileges while in segregation;
• define a reintegration plan (amendment to the inmate’s Correctional Plan) that includes programming, counseling and other service support options that will facilitate reintegration; the plan should clearly defined reintegration option(s) defined against an implementation time frame; particular attention should be given to access by Aboriginal inmates to distinct spiritual and cultural effects and support as provided for in law; and
• identify entitlements to specific cell effects, programs and services.

(f) Maintaining Accurate/Timely Documentation

One of the more important findings of the Task Force was that existing documentation often failed to reveal whether procedural safeguards established in the law and CSC policies had been respected. Maintaining an accurate documentation trail must be a primary goal of the SRB. CSC must be stringent in ensuring that OMS becomes the principle file of record, must provide support in the form of ongoing training in both the use of the system and the preparation and maintenance of well-documented cases.

(g) Strengthening Regional Review Boards

The Task Force has reviewed successful practices related to intra-regional transfers in both the Ontario and Prairie Regions. Steps have been taken in each of these regions to accelerate the transfer process and thereby significantly reduce the time an inmate is held in segregation awaiting transfer.

In the Ontario Region, the Regional Administrator, Community and Institutional Operations (hereafter RACO) has been delegated the authority to effect intra-regional transfers, particularly in instances where there is a dispute between sending and receiving institutions. In addition, the RACO inspects segregation units on behalf of the Deputy Commissioner, recommends changes to physical conditions or administrative processes, and ensures that legislated requirements are followed. The RACO is supported by a Regional Transfer and Project Officer - Segregation who continuously monitors and develops transfer options.

The Prairies Region has established a Regional Transfer Board. It is composed of all regional Deputy Wardens and meets once a month to review segregation transfer cases. The Case Management Officer, responsible for the case, presents arguments for the transfer. Notification is sent to all Board members of the cases being presented and related documentation is noted for review on OMS.

The Task Force recommends that each region establish a Regional Segregation Review and Transfer Board, to expedite the transfers of segregated offenders, using the best combination of the Ontario and Prairie Region’s experiences that applies to their circumstances.

The Task Force has noted that a significant impediment to the transfer of segregated inmates who are held in maximum-security institutions is the lack of regional bed space. This limitation is even more acute for women offenders.

This has put regional staff in the position of having to negotiate inter-regional transfers for many segregated inmates. Some of the issues that are impeding these transfers are:

• the perception that such transfers represent nothing more than the "dumping of regional problems";
• the inter-regional transfer is a last priority for the receiving region;
• transportation options are few and infrequent; and
• the existence of a significant number of "incompatibles" frequently limits the number of available options

The Task Force further recommends that an Inter-Regional Transfer Board be established to expeditiously arbitrate and effect transfers between regions, as required. This Board should be composed of Assistant Deputy Commissioners (or designates) and convene monthly to review and arbitrate regional recommendations made by RACOs. The effectiveness of this Board will depend on the removal of obstacles to expedient transfers.

Notwithstanding the above recommendations, the Task Force acknowledges that for a few segregated offenders, neither transfers nor reintegration into the general inmate population are viable options. These are usually high risk offenders requiring maximum security, who have "incompatible" offenders in all institutions to which transfer might be considered. In these rare cases, little more can be done than to enhance the conditions of confinement, to the extent it is practical.

(h) The Complaints and Grievance Process

CSC is reviewing the complaints and grievance process and is proposing the following enhancements that are pertinent to the considerations being made by this Task Force:

• complaints and grievances which significantly impact on an inmate’s rights and freedoms must be assigned priority for investigation, resolution and response (i.e. all segregation decisions and conditions of confinement);
• inmates will be provided with complete, written responses to issues raised in the complaint or grievance within 15 working days of receipt (instead of 25 working days); and
• when corrective action has to be taken, the institutional head must provide written confirmation to the Deputy Commissioner or the Assistant Commissioner, Corporate Development, that the required action has taken place within 30 working days of receipt of the response.

It should be noted that pursuant to the CCRR, subsequent to the receipt of the institutional head’s response, an inmate may request a review by an Outside Review Board within 10 working days. The Task Force views the above enhancements, paired with the availability of Outside Review Boards, as providing additional procedural safeguards to ensure that decisions are not taken arbitrarily. The Task Force recommends that institutional SRBs inform segregated inmates of the availability of the redress process at their hearings.

It should be noted that, historically, most Aboriginal inmates have not made use of the grievance process. The use of Outside Review Boards, involving the representation of Aboriginal people, would be of particular significance in changing this reality.

(i) Scheduled and Random Audits

The Task Force recognizes that closer monitoring of all activities surrounding administrative segregation is necessary to ensure strict compliance with the law and CSC policies. Therefore, it recommends that a plan for scheduled and random audits by regional and national headquarters be developed and promptly implemented.