31. (1) Purpose - The purpose of administrative segregation is to keep an inmate from associating with the general inmate population.

       (2) Duration - Where an inmate is in administrative segregation in a penitentiary, the Service shall endeavour to return the inmate to the general inmate population, either of that penitentiary or of another penitentiary, at the earliest appropriate time.

       (3) Grounds for confining inmate in administrative segregation - The institutional head may order that an inmate be confined in administrative segregation if the institutional head believes on reasonable grounds

that

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

the continued presence of the inmate in the general inmate population would jeopardize the security of the penitentiary or the safety of any person,

that the continued presence of the inmate in the general inmate population 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

that the continued presence of the inmate in the general inmate population would jeopardize the inmate's own safety,

and the institutional head is satisfied that there is no reasonable alternative to administrative segregation.

32. Considerations governing release - All recommendations to the institutional head referred to in paragraph 33(1) (c) and all decisions by the institutional head to release or not to release an inmate from administrative segregation shall be based on the considerations set out in section 31.

33. (1) Case to be reviewed - Where an inmate is involuntarily confined in administrative segregation, a person or persons designated by the institutional head shall

conduct, at the prescribed time and in the prescribed manner, a hearing to review the inmate's case;

conduct, at prescribed times and in the prescribed manner, further regular hearings to review the inmate's case; and

recommend to the institutional head, after the hearing mentioned in paragraph (a) and after each review mentioned in paragraph (b), whether or not the inmate should be released from administrative segregation.

      (2) Presence of inmate - A hearing mentioned in paragraph (1)(a) shall be conducted with the inmate present unless

the inmate is voluntarily absent;

the person or persons conducting the hearing believe on reasonable grounds that the inmate's presence would jeopardize the safety of any person present at the hearing; or

the inmate seriously disrupts the hearing.

[1992, c. 20, s. 33; 1995, c. 42, s. 12.]

34. Where institutional head must meet with inmate - Where the institutional head does not intend to accept a recommendation made under section 33 to release an inmate from administrative segregation, the institutional head shall, as soon as is practicable, meet with the inmate

to explain the reasons for not intending to accept the recommendation; and

to give the inmate an opportunity to make oral or written representations.

35. Idem - Where an inmate requests to be placed in, or continue in, administrative segregation and the institutional head does not intend to grant the request, the institutional head shall, as soon as is practicable, meet with the inmate

to explain the reasons for not intending to grant the request; and

to give the inmate the opportunity to make oral or written representations.

36. (1) Visits to inmate - An inmate in administrative segregation shall be visited at least once every day by a registered health care professional.

      (2) Idem - The institutional head shall visit the administrative segregation area at least once every day and meet with individual inmates on request.

37. Rights, etc, of inmate - An inmate in administrative segregation shall be given the same rights, privileges and conditions of confinement as the general inmate population, except for those rights, privileges and conditions that

can only be enjoyed in association with other inmates; or

cannot reasonably be given owing to

limitations specific to the administrative segregation area, or

security requirements.

Corresponding Regulations: Sections 19-23 Administrative Segregation

R v. Olson - (1987), 38 C.C.C. (3d) 534, 62 O.R. (2d) 321 (Ont.C.A.)

- Where material filed in a habeas corpus application indicates the existence of serious matters to be considered regarding whether an inmate is lawfully detained in segregation, the Court held the view that judges should either direct that an inmate be brought before them to argue the case as though the writ had been issued or, alternatively, to issue the writ and afford the applicant the opportunity to appear and respond to the submissions of his jailer on the hearing upon the return of the writ. It was not good enough to leave such a matter by denying the applicant an opportunity to be heard.

Vincent v. Etablissement De Renous - (1989), 99 N.B.R. (2d) 336, [1989] N.B.J. No.235 (N.B.C.A.) [N.B.Q.B. decision at (1988) 89 N.B.R. (2d) 224, [1988] N.B.J. No.307]

- Where an inmate applies for habeas corpus and establishes certain facts by affidavit relating directly to the procedural fairness of the proceeding by which he was placed in administrative segregation, a trial judge has a duty to order the issue of a writ or at least to order that the inmate be brought before the court for a hearing on his application.

Robinson v. Canada - (1996), 120 F.T.R. 157, [1996] F.C.J. No.1524 (F.C.T.D.)

- The Federal Court upheld an order of a prothonotary striking out an inmate’s statement of claim against the individual defendants on the ground that the court had no jurisdiction to adjudicate the claim against them personally. The prothonotary did not commit an error of law when he concluded that the causes of action asserted against the individual defendants arose from tortious liability and not from a body of federal law. The causes of action asserted did not emanate from federal law, but rather from provincial tort liability.

Vukelich v. Mission Institution (Warden) - [2000] B.C.J. No.1768, 2000 BCSC 1298 (B.C.S.C.)

- A habeas corpus application challenging the decision to place an inmate into administrative segregation was not a criminal proceeding. The proceeding was either administrative (i.e. disciplinary) or civil in nature, or perhaps a mixture of the two. Accordingly, the Court had jurisdiction to award costs, including special costs. However, the court declined to award special costs in the circumstances and found that there was nothing particularly complex about a habeas corpus proceeding and awarded costs on scale 3, a very low rate. This case is being appealed and cross - appealed to the BC Court of Appeal.

Blass v. Canada (Attorney General) - (2000), 197 F.T.R. 294, [2000] F.C.J. No.1978 (F.C.T.D.)

- The Trial Division agreed to hear the inmate's application and ultimately set aside the CSC's decision to segregate him despite the fact that the inmate had since been released to the general population. Despite being a moot issue in terms of the segregation itself, the court felt that it would be unfair to allow the inmate's record to remain in the state it was without court intervention. Such a record, if left unchanged, could have had some collateral practical effects - particularly eligibility for parole. Comments assembled by prison authorities relating to the inmate's placement in segregation were ordered stricken from the record.

    - Whether inmate must first exhaust alternative remedy (i.e. internal grievance       process)

    Editorial Note - there are some cases on this point including one from the SCC to be included in the near future.

    - Proceeding by way of judicial review in either Federal Court or Provincial       Superior Court

Cardinal and Oswald v. Kent Institution (Director) - (1985), 23 C.C.C. (3d) 118, 24 D.L.R. (4th) 44, [1985] 2 S.C.R. 642 (S.C.C.)

- For the reasons given in Miller v, the Queen (1985), 23 C.C.C. (3d) 97 (SCC), the Supreme Court asserted that in challenging segregation: (a) the provincial superior courts have jurisdiction to issue certiorari in aid of habeas corpus; (b) provincial superior courts could, on an application for habeas corpus alone, consider affidavit evidence to determine whether there had been an absence or excess of jurisdiction, and (c) that habeas corpus will lie to determine the validity of the confinement of an inmate in administrative segregation, and if such confinement be found to be unlawful, to order his release into the general inmate population of the institution.

Pawliw v. Canada (Attorney General) - (1995), 126 Sask.R. 132, [1995] S.J. No.12 (Sask.Q.B.), 1995 CanLII 6042 (SK Q.B.)

- While dealing with a challenge to the lawfulness of an inmate's segregation in a habeas corpus application, it was held that the provincial superior court did not have jurisdiction to deal with the segregated inmate's request concerning participation in certain programs and exercise privileges.

Vilon v. Canada - (1989), 26 F.T.R. 227, [1989] F.C.J. No.66 (F.C.T.D.)

- An inmate sought damages for an alleged unlawful detention relating to his placement in segregation. The application was dismissed as the court concluded that the director of an institution cannot be held to have committed a fault by refusing to follow a decision of a court (in this case the institution's disciplinary court) that had no jurisdiction to issue that decision.

Saint-Jacques v. Canada (Solicitor General) - (1991), 1 Admin.L.R. (2d) 162, 45 F.T.R. 1, [1991] F.C.J. No.306 (F.C.T.D.)

- An inmate filed an action for damages for being placed in administrative segregation for 809 days allegedly because of his refusal to take a tuberculosis test after being transferred from another institution where an inmate had been diagnosed as having tuberculosis. The defendant CSC did not establish that the accused had been in contact with a fellow contagious inmate, and that his refusal represented a threat to good order and discipline in the institution. Justification for the segregation was not established. Evidence of loss of wages was insufficient. However, the inmate suffered a loss of privileges for which he was awarded $800. Employees of the defendant committed oppressive and arbitrary actions justifying exemplary damages. The inmate's rights were disregarded. He was awarded $2,000 in exemplary damages.

Coumont v. Canada (Correctional Services) - (1994), 77 F.T.R. 253, [1994] F.C.J. No.655 (F.C.T.D.)

- The CSC was not negligent in keeping the inmate in protective segregation. The court could not see how the decision to place the inmate plaintiff in protective custody might be found negligent. Whether the inmate was forced into protective custody, which he alleges, or whether it was his own decision, as the CSC maintains, the decision clearly had regard to the reasonably foreseeable risk of injury he would face in the general population and met the correctional officials' obligation to ensure his safety.

Brandon v. Canada (Correctional Service)- (1996), 131 D.L.R. (4th) 761, 105 F.T.R. 243, [1996] F.C.J. No.1 (F.C.T.D.)

- An inmate was awarded $680 in damages, $3000 in exemplary or punitive damages, and costs for false imprisonment as a result of his unlawful placement into administrative segregation, on two separate occasions, for a total of 68 days. The inmate was segregated, without justification, for an extra 40 days after serving 7 days in segregation for a disciplinary offense where, after being found with a female staff member in an unauthorized area, the Discipline Court accepted his guilty plea of failing to remain at his place of work. The inmate was then administratively segregated for another 28 days for what was considered to be his efforts to play on the sympathies of a staff member by claiming falsely that his sister had just died. The court did not agree with the CSC's view that segregation in this case was necessary for maintaining good order and discipline.

Hill v. British Columbia - (1997), 50 Admin.L.R. (2d) 309, 148 D.L.R. (4th) 337, [1997] B.C.J. No.1255 (B.C.C.A.) [reversing in part (1995), 127 D.L.R. (4th) 362 (B.C.S.C.)]

- Under the law, a review of the placement of an inmate into segregation was required to be carried out within 7 days of the segregation order. In this case, it was not done until 14 days, and the inmate was not released until 11 days after that. The onus of justifying the continued segregation was on the authorities and it was not discharged. The obligation to carry out a review within 7 days is a strict administrative obligation, not a discretionary decision, and in the court's opinion would constitute the minimum standard of reasonableness one would expect to be imposed at common law. Although it was inappropriate for the court to second guess a decision made by prison officials in these circumstances, the prison officials were negligent in failing to review his segregation order on a timely basis. The same breach of statutory duty established a case of false imprisonment. The Crown had no statutory immunity in this case. General damages of $500 were awarded.

Caron v. Canada - (1999), 172 F.T.R. 181, [1999] F.C.J. No.1145 (F.C.T.D.) [affirmed [2001] F.C.J. No.879, 2001 FCA 173 (F.C.A.)]

- The CSC was not negligent where an inmate was placed into administrative segregation after refusing to participate in the institution's rehabilitation programs. The court was of the opinion that the maintenance of good order and discipline in the institution necessarily includes the proper administration and implementation of the Strategic Correctional Plan.

[ CROSS REFERENCE - PLACEMENT AND TRANSFER OF INMATES standard of review section ]

R v. McCann - (1975), 29 C.C.C. (2d) 337, [1976] 1 F.C. 570 (F.C.T.D.)

- The court issued a declaration that the confinement of the plaintiff inmates in the solitary confinement unit (SCU) in the former British Columbia Penitentiary amounted to the imposition of cruel and unusual treatment or punishment contrary to s2(b) of the Canadian Bill of Rights. Inmates were required to be confined to a small cell with a light burning 24 hours a day and were permitted to leave only to get meals and for half an hour of exercise each day in the corridor. Inmates were required to sleep with their heads next to the toilet and were subjected to strip searches in the open. The inmates were subjected to treatment that served no positive penal purpose. Even if it did serve some positive penal purpose, the court asserted that the treatment would nonetheless be cruel and unusual because it was not in accord with public standards of decency and propriety - the existence of adequate alternatives made it unnecessary. The Regulation that authorized the warden to dissociate an inmate, for the stated objective of maintaining good order and discipline, was not declared inoperative. Moreover, the inmates were not entitled to a declaration that confinement in the SCU without the requirements of natural justice was contrary to ss1(a) and 2(e) of the Canadian Bill of Rights. There was no duty imposed on the warden to act on a judicial or quasi-judicial basis in dissociating an inmate. That act was purely administrative. When it is considered that penitentiaries house dangerous and unpredictable inmates it becomes clear that the warden must have the power to act decisively and expeditiously to quell disturbances and to isolate offenders in order to protect other inmates and staff. To say that in these circumstances the Regulation requires due process before administrative dissociation would render the administration powerless and a chaotic situation would result.

R v. Olson - (1987), 38 C.C.C. (3d) 534, 62 O.R. (2d) 321 (Ont.C.A.)

- An inmate's continued confinement in administrative or protective segregation did not violate the s12 Charter prohibition against cruel and unusual punishment, as this was not treatment that was so excessive as to outrage standards of decency. Most right thinking people would agree that segregation from the general population in a prison, in the circumstances of this case, authorized by the regulations is necessary and acceptable. In particular this inmate was a dangerous man and in light of his previous experience in the penitentiary there were very good reasons to fear for the maintenance of order and discipline in the institution where he must serve his sentence of life imprisonment. Segregation to a prison within a prison is not per se cruel and unusual treatment, although it may become so if it is so excessive as to outrage standards of decency.

McArthur v. Regina Correctional Centre, Chief Executive Officer - (1990), 56 C.C.C. (3d) 151, 83 Sask.R. 128 (Sask.Q.B.)

- The continued segregation of an inmate on the grounds that his behaviour had become unpredictable and violent towards staff members and other inmates did not violate the s12 Charter prohibition against cruel and unusual treatment. The segregation of the inmate in these circumstances did not outrage the standards of decency - referring to the test set out in R v. Olson (1987), 38 C.C.C. (3d) 534 (Ont.C.A.).

Dégarie v. Canada - (1997), 141 F.T.R. 142, [1997] F.C.J. No.947 (F.C.T.D.)

- The CSC transferred the inmate from one specific segregation unit to another within the same penitentiary. The only difference between the two units was the level of contact with the regular population, with the inmate moving involuntarily to the more 'restrictive' unit. Since both units offered the same services, conditions and rights and privileges no remedy can be available under s24(1) of the Charter. The inmate's constitutional rights were not infringed.

Cardinal and Oswald v. Kent Institution (Director) - (1985), 23 C.C.C. (3d) 118, 24 D.L.R. (4th) 44, [1985] 2 S.C.R. 642 (S.C.C.)

- This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual. In Martineau (No.2), the Court held that the duty of procedural fairness applied in principle to disciplinary proceedings within a penitentiary. Although administrative segregation is distinguished from punitive or disciplinary segregation under s40 of the Penitentiary Service Regulations, its effect on the inmate in either case is the same and is such as to give rise to a duty to act fairly. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. The denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision.

Re Nelligan - 1988), 91 N.B.R. (2d) 384, [1988] N.B.J. No.727 (N.B.Q.B.T.D.)

- Where prison authorities acted upon the basis of confidential informant information, the court asserted that it would be totally unreasonable to require of those having responsibility for maintenance of discipline in prisons to disclose to prisoners required from time to time to be placed in segregation the sources of all information on which the decision to segregate is based.

Fengstad v. Kent Institution - (1991), 41 F.T.R. 313, [1991] F.C.J. No.257 (F.C.T.D.)

- An inmate had been placed in administrative segregation on the grounds that prison authorities had received confidential information indicating that the inmate participated in pressuring other inmates and their families into bringing narcotics into the Institution, and continuing escape efforts. Prison authorities did not violate the duty to act fairly in refusing to disclose all relevant information. The court asserted that it would be unwise and perhaps even dangerous to reveal any more information to the inmate as to the identity of the informants.

Dégarie v. Canada - (1997), 141 F.T.R. 142, [1997] F.C.J. No.947 (F.C.T.D.)

- The CSC transferred the inmate from one specific segregation unit to another within the same penitentiary. The only difference between the two units was the level of contact with the regular population, with the inmate moving involuntarily to the more 'restrictive' unit. Referring to the decision in Camphaug v Canada (1990), 34 F.T.R. 165 (FCTD), the court asserted that fairness does not require that the inmate be given all of the particulars of all alleged wrongdoings. It is sufficient if he can make representations to demonstrate that the recommendation that he be moved is an unreasonable one.

Blass v. Canada (Attorney General) - (2000), 197 F.T.R. 294, [2000] F.C.J. No.1978 (F.C.T.D.)

- In this case, the authorities violated procedural fairness in failing to give the inmate any information indicating why he had been identified as one of the instigators of certain specific events in question, although that was the reason for his administrative segregation. The lack of information meant that the inmate was unable to rebut in any real and effective way the decision to place him in administrative segregation.

    - Notice, Provision of reasons, and the Right to make representations (present       proof or arguments) and to have them taken into consideration

Cardinal and Oswald v. Kent Institution (Director) - (1985), 23 C.C.C. (3d) 118, 24 D.L.R. (4th) 44, [1985] 2 S.C.R. 642 (S.C.C.)

- Because of the apparently urgent or emergency nature of the decision to impose segregation in the particular circumstances if this case, the Court held that there was no requirement of prior notice and an opportunity to be heard before the decision to segregate was carried through. However, once the inmate was placed into segregation, a decision to continue the administrative dissociation or segregation of that inmate required that the warden inform the inmate of the reasons for his decision and give the inmate an opportunity, however informal, to make representations.

McArthur v. Regina Correctional Centre, Chief Executive Officer - (1990), 56 C.C.C. (3d) 151, 83 Sask.R. 128 (Sask.Q.B.)

- Although the right to counsel is enshrined in s10(b) of the Charter, it is not an absolute right of inmates. While the inmate in this case had access to counsel, he was not entitled to representation by counsel before a prison review panel that ultimately confirmed his continued segregation.

R v. Olson - (1987), 38 C.C.C. (3d) 534, 62 O.R. (2d) 321 (Ont.C.A.)

- While s4 of the Penitentiary Act recognized that the Solicitor-General has over-all ministerial responsibility, that section could not authorize the Solicitor-General to order the segregation of a particular prisoner from the general population in a penitentiary. It did not confer authority or power on the Solicitor-General to interfere with the rights or liberty of a particular prisoner. Thus, if the inmate was held in segregation because of the order of the Solicitor-General, then the segregation was unlawful. However, the evidence was clear that the head of the institution made the decision whether or not the appellant should remain in administrative segregation. The fact that the Solicitor-General made an illegal order could place in doubt the inmate's confinement in administrative segregation that was otherwise lawful.

Bear v. Canada (Correctional Service) - (1986), 48 Sask.R. 310, [1986] S.J. No.212 (Sask.Q.B.)

- A warden's decision to segregate an inmate in order to prevent him from associating with a certain guard was found to be in excess of the warden's jurisdiction, as section 40(1)(a) of the Penitentiary Service Regulations provided for segregation to keep an inmate "from associating with other inmates."

Re Nelligan - (1988), 91 N.B.R. (2d) 384, [1988] N.B.J. No.727 (N.B.Q.B.T.D.)

- An adverse behavioral attitude, which essentially involved the refusal of the inmate to meet with case management officers in order to work out and make a commitment to reasonable behavioral expectations, was sufficient reason for continued segregation.

McArthur v. Regina Correctional Centre, Chief Executive Officer - (1990), 56 C.C.C. (3d) 151, 83 Sask.R. 128 (Sask.Q.B.)

- The continued segregation of an inmate on the grounds that his behaviour had become unpredictable and violent towards staff members and other inmates was not demonstrably unfair or arbitrary.

Valade c. Pénitencier de Donnacona - [1990] J.Q. No.1457 (Que.S.C.)

- An inmate had been in administrative segregation for more than 70 days on the grounds that prison authorities believed that his presence in the general population would compromise an inquiry into the murder of another inmate of which he was suspected of perpetrating. The court declared the inmate's continued segregation as no longer justified since the murder inquiry was based on suspicion. Suspicion was not a justification for punishment by anticipation. An inmate suspected of committing a crime could not be placed indefinitely in administrative segregation.

Currie v. Canada (Correctional Service) - [1991] N.B.J. No.1002 (N.B.C.Q.B.), 1991 CanLII 2633 (NB Q.B.)

- The administrative segregation of an inmate was held to be lawful where the evidence showed that the administrative head of the prison believed, and had reason to believe, that the inmate had been involved in the murder of another inmate at the institution two days prior to the administrative decision to segregate him.

Brandon v. Canada (Correctional Service) - (1996), 131 D.L.R. (4th) 761, 105 F.T.R. 243, [1996] F.C.J. No.1 (F.C.T.D.)

- An inmate was held, first in dissociation and later in segregation, by reason of what was considered to be his efforts to play on the sympathies of a staff member by claiming falsely that his sister had recently died. It was acknowledged before that he had committed no offence. In the terms of subsection 40(1) of the Regulations, no evidence was adduced that satisfied the court that the director of the institution could have been satisfied that, for the maintenance of good order and discipline in the institution or, in the best interest of an inmate, it was necessary or desirable that the inmate should be kept from associating with other inmates. While, on the basis of the inmate's efforts to play on the sympathies of a staff member and on the basis of his prior history of misconduct with another staff member, the director could be reasonably satisfied that there was justification in terms of the maintenance of good order and discipline of the institution in keeping the inmate from associating with one or more institutional staff members, that is not a ground for dissociation.

Dégarie v. Canada - (1997), 141 F.T.R. 142, [1997] F.C.J. No.947 (F.C.T.D.)

- The decision to move involuntarily an inmate from voluntary segregation within a particular unit to another segregation unit was made on the grounds that he had been provoking and exploiting other inmates resident in the original segregation unit. This decision was made in order to guarantee the safety of other inmates and the proper functioning of the Institution, in accordance with subsection 31(3) of the CCRA.

Hill v. British Columbia - (1997), 50 Admin.L.R. (2d) 309, 148 D.L.R. (4th) 337, [1997] B.C.J. No.1255 (B.C.C.A.) [reversing in part (1995), 127 D.L.R. (4th) 362 (B.C.S.C.)]

- Even in the absence of specific evidence that the plaintiff had participated in the precipitating event - a riot, the segregation order was a reasonable exercise of the warden's discretion. Such an order could be made for the security and order of the facility or the safety of its inmates, and therefore the segregation of possible participants from the general prison population pending the abatement of the threat to order and security was reasonable.

Caron v. Canada - (1999), 172 F.T.R. 181, [1999] F.C.J. No.1145 (F.C.T.D.) [affirmed [2001] F.C.J. No.879, 2001 FCA 173 (F.C.A.)]

- Where an inmate was placed into administrative segregation after refusing to participate in the institution's rehabilitation programs, the court was of the opinion that the maintenance of good order and discipline in the institution necessarily includes the proper administration and implementation of the Strategic Correctional Plan.