Task Force Report on Administrative Segregation

H. Independent Adjudication

(a) Background

In her report, Madame Justice Arbour stated that the management of administrative segregation should be subject to independent oversight. Madame Justice Arbour recommended independent oversight, in part, because the evidence before her inquiry revealed that both the segregation review process and the conditions of confinement in segregation did not comply with principles of fundamental justice as outlined in the Canadian Charter of Rights and Freedoms or in the CCRA, the CCRR, and CSC policies.

Madame Justice Arbour also concluded that the harmful effects of long-term segregation, coupled with the significant restrictions on liberty, subject inmates to greater deprivations than originally envisaged by the sentencing court.

In fact, the Supreme Court of Canada has described administrative segregation as constituting a "prison within a prison", so that the placement of inmates in segregation requires a high degree of procedural fairness. Madame Justice Arbour recommended independent oversight because the placement of an inmate in administrative segregation represents such a significant deprivation of rights of liberty and freedom of association.

It is important to recognize that the concept of independent oversight for administrative segregation cases has been proposed for many years. The concept is one which has already been recognized as an important feature of federal correctional law in the adjudication of serious disciplinary offences. It is thus instructive to briefly trace the developments leading to the introduction of independent adjudication in the disciplinary context, in order to better understand the underlying reasons for its application to segregation decisions.

Justice Behind the Walls - 1972

In 1972, Professor Michael Jackson, a member of this Task Force, concluded a four month review of the disciplinary process at a medium security federal penitentiary in British Columbia by which serious disciplinary offences were adjudicated by Wardens or Deputy Wardens. He found that the process lacked the essential attributes of objective and fair adjudication. He believed that a fundamental flaw in the Warden’s Court System was that the same people who were accountable for maintaining the good order of the institution, were the ones judging whether or not inmates had committed offences against that good order. The judges, in other words, were the offended parties. Those adjudicators brought to the hearings, in most cases, considerable personal knowledge of the inmates, based upon their previous dealings with them, and it was therefore difficult for them to approach the particular case free from the biases of that prior knowledge. Objective judgment was further hampered by the need for prison administrators to maintain staff morale by accepting the testimony of correctional officers where it was in conflict with that of inmates. Professor Jackson proposed that the crux of any real reform required an impartial disciplinary tribunal - a tribunal in the sense of one which would approach cases free from bias based upon prior knowledge of the inmate and which would handle the task of discipline in a spirit of maximizing the procedural protections designed to ensure a fair hearing. He therefore proposed that independent chairpersons be appointed to conduct hearings for serious disciplinary cases and that such persons should be legally trained and therefore familiar with the essential elements of a fair hearing.

With regard to the administrative segregation process, Professor Jackson concluded that the very broad discretion given to the institutional head to segregate an inmate required adequate procedural checks and balances to prevent any potential abuse of that discretionary power. In light of the fact that inmates could and did spend far longer periods in administrative than disciplinary segregation, Professor Jackson argued that, while the initial decision to place an inmate in administrative segregation should be left with the institutional head, there should be a formal review before an independent chairperson after five days.

Study Group on Dissociation - 1975

In 1975, the Solicitor General of Canada established a Study Group on Dissociation under the chairmanship of Dr. Jim Vantour, following a recommendation of the Correctional Investigator in her Annual Report of 1973-4, that there be a special study of the use of dissociation in Canadian penitentiaries. In its report, the Study Group dealt with both punitive and non-punitive dissociation. The Study Group recommended that the Canadian Penitentiary Service appoint independent chairpersons to preside over disciplinary hearings for serious offences because "the present composition of the disciplinary board prohibits the appearance of justice". Because the Study Group saw its recommendation as a "relatively drastic alternative to the present system", it made the further recommendation that independent chairpersons should be introduced on an experimental basis in two of the five CPS regions.

The Study Group did not consider independent adjudication in its proposals for the reform of administrative segregation. Instead, it recommended the establishment of a Segregation Review Board, chaired by the Director (Warden) of the institution. The Segregation Review Board would review the case of an inmate within five working days of the Warden’s decision to segregate and at least once every two weeks thereafter. The Board would be required to develop a plan to reintegrate the inmate into the population as soon as possible and monitor that plan during subsequent reviews.

The Study Group also addressed the general issue of the CPS’s compliance with the existing law, regulations and policy dealing with dissociation. The Study Group encountered many situations in which regulations were ignored by staff in charge of dissociation facilities, resulting in inmates being deprived of rights and privileges to which they were entitled. It concluded that "New regulations alone cannot change the psychological milieu of the dissociated inmate. The philosophy of the Service and the attitudes of individual staff members are not necessarily affected by a change in the regulations."

Parliamentary Sub-Committee on the Penitentiary System in Canada - 1977

In its 1977 Report to Parliament, the Parliamentary Sub-Committee on the Penitentiary System in Canada endorsed the concept of independent chairpersons to preside over disciplinary hearings but was of the opinion that the 1975 Study Group did not go far enough in recommending gradual implementation of the concept. The Sub-Committee maintained that independent chairpersons "are required immediately as a basic demand of justice at all Penitentiary institutions in Canada."

The Sub-Committee also endorsed the Study Group’s recommendation that a Segregation Review Board be set up in each institution, and that the Board review cases after five days and every two weeks thereafter. The Sub-Committee indicated that it had debated whether such an internal review provided adequate protection for inmates, and in particular whether the chairperson of the Review Board should be the same kind of independent person which had been recommended for disciplinary boards. The Sub-Committee, however, concluded that the internal model of review advanced by the 1975 Study Group "should not be judged and found wanting until it had been tried." It therefore recommended that the adequacy of the protections under the Internal Segregation Review Board Model should be reconsidered after two years of experience.

Following the Report to Parliament, the Service began appointing independent chairpersons for disciplinary boards, initially at maximum-security institutions, and in 1980, at medium-security institutions.

Prisoners of Isolation: Solitary Confinement in Canada - 1983

After reviewing the segregation review process at Kent Institution, Professor Jackson, in his 1983 book Prisoners of Isolation, concluded, that the introduction of the SRB had not brought about any significant change to ensure that segregation decisions were made in a principled and fair manner, and that inmates were not subject to inhumane and degrading conditions. His criticisms focused on the lack of principled criteria for segregation and the absence of a rigorous and independent process of review. To address these deficiencies, Professor Jackson drafted a Model Segregation Code. The Code sets out detailed criteria for segregation and included limitations on the amount of time an inmate could be segregated for investigative purposes and, except in exceptional circumstances, an overall limitation of 90 days of continuous segregation for involuntary cases. It also provided for a segregation review process chaired by an independent chairperson; and set out in affirmative terms the rights and privileges to which segregated inmates were entitled.

The chairperson’s role is to ensure that there is a factual basis to justify segregation measured against specific criteria; to assess the reliability of confidential information which cannot be disclosed to the inmate; to ensure that the inmate receives a fair hearing and is able to present an answer and defense to any allegations made against him or her; and to ensure compliance both with the time constraints placed upon segregation and with the law regarding the conditions of segregation.

According to Professor Jackson, the essential thrust of the proposal to expand independent adjudication to the administrative segregation process was that decisions which have a significant impact on liberty, and which involve an adjudication of disputed facts and competing interests, should be subject to such adjudication. In other words, Wardens’ and SRB members’ vested interests in the outcome of administrative segregation decisions were too great, and could hinder decision-makers’ ability to act, or undermine the perception that they have acted fairly. Professor Jackson argued that it was this necessity of ensuring a fair decision-making process, free from institutional bias, which formed the foundation for the implementation of independent chairpersons in disciplinary cases. He argued that no less a compelling case should be made for independent adjudication in cases of administrative segregation. He also argued that, with disciplinary hearings, it was necessary to have a hearing officer who was both knowledgeable about the letter and spirit of the law, and who had a commitment to upholding that law without undue concern for issues of institutional convenience or politics.

Report of the Canadian Bar Association - 1988

In its 1988 report, Justice Behind the Walls, the Canadian Bar Association endorsed the Model Segregation Code with its proposal for independent adjudication of segregation cases. It stated that the thrust of the proposals in the Code was to "bring about a change in attitude, not so that the interests of correctional administrators in maintaining order and security are disregarded, but to ensure that they are held in balance with the rights of a prisoner not to be falsely accused and to be subjected to lengthy deprivation of institutional liberty on the basis of unfounded suspicion and unproved allegations" It further observed that "It is demonstrably unlikely that this change will come about if the decision remains in the hands of the correctional administrator who favours one interest over the other. This is where the proposal for an independent decision-maker is critical."

(b) Consultation

The Task Force has consulted some key stakeholders to discuss external review in the context of the recommendations of the Arbour Commission and CSC’s operating environment [ The Task Force held a two day meeting (January 23 and 24, 1997) to consult with external agencies. The following participants attended the meeting held in Ottawa: Charles Ferris, General Counsel, Human Rights Commission (New Brunswick); Clara Gloade, Native Women’s Association of Canada; Isabelle Impey, Aboriginal Advisory Committee; Terry Lumb, National Chairperson, Citizen Advisory Committee; Margaret Shaw, Canadian Association of Elizabeth Fry Societies; Graham Stewart, Executive Director, John Howard Society of Ontario; Elizabeth Thomas, Women’s Legal Education and Action Fund; and Elizabeth White, St. Leonard House.] .

The proposed enhanced segregation review process model was reviewed and accepted as a necessary step to move staff members and managers to respect and comply with the law.

Some opinion supported the requirement for CSC to retain the responsibility and accountability for the management of these processes within specific time frames, before independent adjudication is invoked to ensure that unjustified and prolonged segregation does not occur. An independent adjudication model had to be implemented to ensure that inmates are treated fairly under the law when circumstances can create conflicts between effective due process and operational expediency. Other opinion supported the position that CSC should move directly to judicial review. Overall opinion supported the introduction of independent adjudication as a necessary step to regaining public credibility and demonstrating departmental accountability.

There was support for the proposal that CSC take the time to develop and experiment with an independent adjudication model. It was felt that the experiment should provide decision-making authority to the adjudicator and that consideration should be given to appointing a provincial or federal judge to participate full-time in the experiment. Such an appointment would provide ready-made credibility in terms of the adjudicator’s possessing skills in conflict resolution and risk-balancing, as well as being able to be trained quickly on the segregation review process in the context of law.

These observations have contributed significantly to the deliberations and recommendations of the Task Force on independent adjudication.

(c) Review of Proposals for Independent Adjudication

The Task Force reviewed three different independent adjudication proposals: the preferred proposal of judicial oversight as recommended by Madame Justice Arbour; her alternative model of independent adjudication; and finally, the model of independent adjudication developed by Professor Jackson.

(i) Madame Justice Arbour’s Judicial Oversight and Independent Adjudication Model

Recommendation (9) of the Arbour Report (pages 255-256) did not differentiate between involuntarily and voluntarily segregated inmates with respect to review processes. The preferred review process consisted of the following steps:

• the initial decision to segregate should remain with the Warden;
• 3-day review should be conducted by an (institutional SRB) to determine if further detention in segregation is required, up to a maximum of 30 days (an inmate could not spend more than 60 non-consecutive days in segregation in a calendar year);
• after 30 days, the institution must identify an alternative to segregation; and
• if alternatives are not available, or if there is a requirement to continue segregation, CSC is required to apply to a court.

As an alternative, the following review process was proposed:

• the initial decision to segregate should remain with the Warden;
• 5-day review by independent adjudicator is made to confirm the decision; and
• 30-day reviews should be conducted by a different adjudicator each time.

(ii) Proposals by Professor Jackson

Professor Jackson’s Model Segregation Code was designed to deal with cases of involuntary segregation. Since that Code was drafted in 1983, there has been an increase in the population of inmates who are in various forms of segregated status for their own protection, and in most cases at their own request. The circumstances which have led to their segregation run a broad spectrum. This population includes inmates who are facing pressure or threats arising from drug or gambling debts; socially inadequate inmates with a history of mental illness who are constantly running into difficulties in their relationships with other inmates; inmates who are believed to be informants; and inmates who, because of the nature of their crime (usually involving a brutal sexual assault or an offence against children), are in imminent danger from all but a few other inmates.

In evaluating the role of independent adjudication in these types of cases, Professor Jackson suggests that it is important to identify not only the common elements they share with involuntary cases, but the main distinctions as well. As for the distinctions, typically the reasons for voluntary segregation are not embedded in disputed factual allegations. To the extent that there are disputed facts, it is often the inmates who assert that their lives or safety are threatened and the correctional administration who believes that their fears may not be justified or are exaggerated - the reverse of the situation that exists in involuntary cases.

What is critical to the resolution of these cases is not so much the adjudication of disputed facts, but the development of creative and realistic plans for the reintegration of the inmate, either through a negotiated return to the population of the parent institution; transfer to a special needs unit; or transfer to the population of another institution, together with effective mechanisms for the implementation of these plans. The primary challenge here is to develop creative alternatives to segregation and ensure that the necessary resources are available.

Even though these voluntary cases do not usually involve the disputed factual allegations which underlie involuntary segregation cases, Professor Jackson argues that this does not resolve the question of the need for an independent adjudicator to review these cases. Voluntary cases, like involuntary cases, raise common issues of ongoing compliance with the law. While the legal requirements for review are less onerous in voluntary cases, there is still the need for the development of a reintegration plan and for that plan to be implemented in a timely way to minimize the necessity for segregation.

One of the problems with the current system is that the resolution of cases of voluntary segregation often lack any sense of urgency; cases drift from review to review, with case management priorities focused on other inmates in the population, whose problems are less overwhelming than those in segregation. Members of the Task Force observed several segregation reviews where inmates had sat for many months awaiting the preparation of documentation for transfers or responses on a completed transfer package. The annual reports of the Correctional Investigator have highlighted the general issue of non-compliance with meeting the statutory time frames for transfers and the problem is particularly acute for those inmates who are in segregation. Professor Jackson suggests that the independent adjudicator can be more vigilant in requiring compliance with statutory time frames.

It should be noted that the Task Force agrees that, as a best practice, voluntary cases should be reviewed at the same frequency as involuntary cases, even though this exceeds the demands of the law. The Task Force has observed institutions where this practice of reviewing voluntary cases more frequently has resulted in successful and expedient reintegration of the inmate into less restrictive environments.

Another issue of compliance revolves around conditions of confinement. If, as the Task Force believes, the CSC is lawfully obligated to be far more pro-active in providing inmates in segregation with programs, then effective mechanisms must be in place to ensure this occurs. The Task Force has observed instances where administrative convenience and security considerations have all but eclipsed the delivery of programming.

Professor Jackson suggests that the neutrality of the independent adjudicator would remove the potential negative impact of administrative convenience on limiting fair decision-making and provide a mechanism to validate security considerations.

Taking into account the distinction between involuntary and voluntary cases, Professor Jackson has proposed the following framework for segregation decisions and review. With respect to involuntary segregation:

• the initial decision to segregate should remain with the Warden;
• 5- and 30-day reviews should be conducted by the independent hearing officer to verify that there are grounds justifying involuntary segregation and no reasonable alternatives exist;;
• in cases where there is an ongoing investigation, the independent hearing officer should establish reasonable time frames for the completion of an internal investigation; and;
• subsequent reviews should monitor the implementation of the reintegration plan.

With respect to voluntary segregation:

• the initial decision to segregate should remain with the Warden;;
• a 5-day review should be chaired by the Warden or Deputy Warden;;
• a 30-day review should be chaired by an independent adjudicator who would review the reintegration plan prepared by the institution to ensure that it had been developed and that all reasonable alternatives to segregation have been explored;;
• if reintegration involves a negotiated return to the population of the institution, with the assistance of another party (for example, the Inmate Committee, Native Brotherhood or an Elder), the hearing should include these parties;;
• if reintegration involves transfer to a special needs unit, a reasonable time frame should be set at the hearing for the transfer;;
• if reintegration involves transfer to another institution, the adjudicator should ensure that the necessary Progress Summaries are prepared and that the transfer time frames are complied with; and;
• if a transfer cannot be effected between institutions, a Regional Segregation/Transfer Board, chaired by a Deputy Commissioner or delegate, should be convened to effect the transfer as quickly as possible.

In both voluntary and involuntary cases, monthly reviews would provide a forum in which revised reintegration plans could be tabled; programming requirements addressed; and representations by inmates reviewed, including those related to restrictions or denial of rights and privileges.

The independent adjudicator, invested with the authority envisaged in this Model Segregation Code, would be able to issue directions and reports, and in certain cases order the release of the inmate from segregation, where there is non-compliance with the law.

It should be clear that, according to Professor Jackson’s proposals, the role envisaged for an independent adjudicator in segregation cases is not simply a replication of the independent chairperson of the disciplinary board. In the disciplinary model, the chairperson is the sole decision-maker in relation to issues of guilt or innocence and the institution’s role is to present evidence in support of the charge. On the issue of sentence, the institutional advisor may give a recommendation if requested by the independent chairperson, but the chairperson is responsible for determining sentence. In the Model Segregation Code, the role and responsibilities of CSC staff are much greater and their participation in the decision-making process more extensive, particularly in the case of voluntary segregation. The overall objective of this model code is to harness the strengths of independent adjudication to the expertise of correctional staff, with a view to implementing the best population management alternatives.

(d) Introduction of Independent Adjudication to CSC

(i) The Purpose and Scope of the Experiment

The Task Force recommends that CSC experiment with a model for independent adjudication as soon as possible to evaluate both the impact of the operational requirements (organization, roles and responsibilities, and cost) and the potential advantages in terms of improving the fairness and effectiveness of the administrative segregation review process. In this context, the Task Force reviewed the introduction of judicial review as proposed by Madam Justice Arbour. Particular consideration was given to the operational and jurisdictional impediments that this alternative presented, and the impact that these impediments would have on the immediate implementation and experimentation with external review. Exclusive reliance upon the judiciary would require resolution of jurisdictional and resource issues associated with using federal or provincial judges within a federal correctional setting. In light of judicial case loads, the availability of a sitting judge to conduct frequent reviews within federal institutions, particularly those in remote locations, may be problematic. The workloads and time frames associated with centralizing the process either regionally or nationally also presented serious obstacles to implementation.

The Task Force, therefore, determined that the most feasible alternative for experimentation would be through independent adjudication under a model which, while it could include a member of the judiciary, would not be exclusively based upon a judicial model.

(ii) Models for Consideration

It is important to note that the Task Force is recommending an experiment to determine not only how the best blend between an enhanced segregation review process and independent adjudication could be achieved, but also whether independent adjudication improves the fairness and effectiveness of decision-making. Figures 2 and 3 illustrate the blending of the enhanced model with independent adjudication for involuntarily and voluntarily segregated inmates.

The design of the proposed experimentation is based on the following principles:

1. The use of the enhanced model is necessary to ensure that procedural fairness is maintained in the administrative segregation decision-making process, and that plans for reintegration are effectively implemented. Any independent adjudication model must be integrated with the enhanced model to maximize effectiveness.;
2. Wardens must retain their authority, responsibility and accountability for ratifying all placement decisions and for finding and implementing solutions to reintegrate segregated inmates into less restrictive correctional environments.;
3. Reasonable time limits (thresholds) must be provided to institutional staff to reintegrate segregation cases. These time limits can vary for involuntarily and voluntarily segregated inmates.

Immediate implementation of an independent adjudication experiment presupposes no legislative changes. Therefore, CSC will have to develop an interim policy that provides for the authority of the independent adjudicator during the experiment. This authority will be similar to that of the chairperson of the SRB to work with and make recommendations to the Warden.

(iii) Criteria for Selection of Participants

The independent adjudicators selected for the experiment could include a member of the judiciary with some experience in corrections. The Task Force would note that among sitting members or the judiciary are several former members of the Parliamentary Sub-Committee on the Penitentiary System in Canada, a former Deputy Solicitor General, a former Correctional Investigator, and several lawyers with extensive experience working within corrections, both on behalf of inmates and the Department of Justice. Another appointment could be from within the ranks of experienced arbitrators and the selection could be through a joint process, commonly used in the appointment of arbitrators, involving stakeholders. For example, the appointment could involve input from the Office of the Correctional Investigator, community groups involved with corrections and Inmate Committees or Native Brotherhoods. Another possibility could be the appointment of someone from within the ranks of a law school or criminology department with expertise in correctional law and administration.

(iv) Developing Evaluation Criteria

It will be important to develop evaluation criteria for the experiment in order to enable CSC to determine the legal, policy and operational implications for the best blend of internal and external review. This evaluation should be performed by CSC and outside participants. The evaluation criteria should address both the issues of fairness and effectiveness and consequently should cover such questions as:

• What would the value-added benefit of the involvement of an independent adjudicator be over and above or instead of CSC appointed staff providing reviews at the regional level, external to the institution?;
• Does independent adjudication result in a fairer process than that provided by an enhanced internal segregation review?;
• Does independent adjudication ensure the protection of Aboriginal and Treaty rights?;
• Which process provides for greater sharing of information required under the legislative and regulatory framework?;
• Which process reduces the use of segregation and results in inmates, who are justifiably segregated, spending less time in segregation?;
• Which process best promotes the development of viable alternatives to administrative segregation?;
• Consideration should be given to defining the following factors that underlie the effective and efficient management of a potential group of adjudicators.;
• What is the most appropriate infrastructure required to appoint and manage this group? (Models for consideration could include appointment by and direct line reporting to the Commissioner; the establishment of an administrative tribunal that appoints and manages all aspects of the adjudication process, etc.);
• What are the specific responsibilities and accountabilities of the independent adjudicator, as reflected in a code of conduct, procedural rules for adjudication, and guidelines for appointments and dismissals?;
• What remuneration levels would be appropriate?;
• What should the selection criteria for these independent adjudicators be? ;
• What should their authorities, responsibilities and accountabilities be?;
• What are the cost-benefit implications of introducing this external review infrastructure?

The results of the evaluation should include the clear definition of the factors that indicate the benefits and deficits of using independent adjudication; an analysis of the impact that independent review has had on the decisions that were taken; recommendations on the best model and best fit for independent adjudication; and proposals of an action plan for implementation if the recommendation is to adopt the model.

(v) The CCRA Review

The Task Force recommends that the experimentation with independent adjudication should be fast-tracked in order to ensure that evaluation results are available for review by EXCOM by the end of 1997. The Task Force has also considered the relationship between the proposed experiment with independent adjudication and the CCRA five-year review, which is presently underway. The Task Force is concerned that the window for legislative amendment provided by the review could be closed before the proposed experiment is complete. The Task Force therefore recommends that proposals for possible legislative amendments be drafted while experimentation is taking place. If regulatory measures are also deemed helpful then they could also be drafted in parallel.

(e) Evaluation of the Use of Compensation

Madame Justice Arbour stated that undue segregation of inmates constitutes an interference with the "integrity of the sentence imposed by the courts" and suggested that inmates have the right to some compensation. The Department of Justice Canada has been asked by the Ministry of the Solicitor General to review and provide advice on these recommendations. Consultation is being conducted with participants in the criminal justice system. The Task Force recommends that the results of this consultation be included in the evaluation of the experiment on independent adjudication, and the issue of appropriate remedy be further reviewed by the Segregation Advisory Committee.