The ambiguity in the legislation and the inconsistency
between Commissioner’s Directive 709 and s. 87(a) is not assisted by Commissioner’s Directive 843, which provides for different
“watch levels” for inmates who are suicide risks. Directive 843
also calls for the use of restraints, monitoring and foods that can
easily be consumed without cutlery. The thrust of the directive is
the treatment of suicide risks without removing the inmate from
segregation. Presumably, this is because the safety concern
which caused admission in segregation remains. This approach
does not reflect an attempt to balance security and mental
health risks. Rather, it suggests that the mental health risk is
considered in decisions relating to the inmate except the decision
to release from administrative segregation.
 Commissioner’s Directives 709 and 843 entrench the
failure to balance the safety of persons working or housed in the
penitentiary and the mental health of the inmate administratively segregated. They direct staff to monitor and record
the harm suffered because of prolonged administrative segregation without mandating a balancing of security and mental
health risks when deciding whether to continue administrative
 There is no case in which s. 87(a) of the Corrections and
Conditional Release Act has been applied to compel the release
of an inmate from administrative segregation.
 I am satisfied, however, that this part of the problem can
be constitutionally addressed by deciding that the institutional
head has a discretion to admit an inmate to segregation which
seems clear from the use of the word “may” in s. 31(3) and must
when exercising that discretion take into account s. 87(a) of the
Corrections and Conditional Release Act. Similarly, the independent reviewer, necessitated under s. 7 of the Charter, is also
making a discretionary decision concerning whether to continue administrative segregation and must also consider s. 87(a).
Neither is to inhibit the exercise of their individual discretion
by assuming that inmates not captured in para. 19 of Commissioner’s Directive 709 are eligible for placement in segregation
regardless of the state of their mental health. Neither can
ignore an inmate’s mental health and decide to segregate solely
based on the criteria in s. 31(3) of the Corrections and Conditional Release Act.
 The need to consider the inmate’s mental health when
making the administrative segregation decision does not flow
from the Administrative Segregation Handbook for Staff or Commissioner’s Directive 709 or the segregation assessment tool.
It flows from the fact that as a matter of law the institutional