BRINGING JUSTICE TO THE DISCIPLINARY PROCESS
Views from the Trenches
In describing the practice of prison justice at Matsqui and Kent, I have reflected on features which both demonstrate and compromise its claim to be a fair and effective process. Another dimension to my understanding of the disciplinary process came from a series of meetings held at Kent in the summer of 1994, in which prison administrators, line staff, prisoners, and the Independent Chairperson engaged in a discussion of the disciplinary process and made constructive recommendations for improving the system. These recommendations illustrate the different perceptions prison staff and prisoners have of the process, but they also reveal pathways to greater justice in the disciplinary process.
The primary area of concern to correctional staff and administrators was the lack of legal education relating to the disciplinary process. Unlike police officers, who routinely write reports to Crown counsel on the basis of which charges can be laid, most correctional officers write few offence reports, and they receive little or no training in how to do this. Independent Chairperson Dean Fox corroborated my observations that some offence reports left a great deal to be desired in terms of both specificity and clarity. The laying and designation of the charge was also an area in which lack of proper legal training created recurring problems. As Mr. Fox pointed out, it was important that the person who reviewed the offence reports to determine whether a charge should be laid, what the charge should be, and whether it should be designated as serious or minor, be conversant with the legal and factual elements required to prove particular offences. Cases were dismissed at both Matsqui and Kent because the wrong charge had been laid, although the facts would have supported a conviction on a different charge. This occurred most frequently in relation to charges of possession of contraband in situations where possession of an unauthorized object would be the appropriate charge, and to charges of assault in circumstances where the evidence supported only the charge of being disrespectful or abusive. The necessary elements of an offence are matters of legal definition and interpretation, and it is unreasonable to expect correctional staff to perform functions of this kind in the absence of proper legal training.
Correctional staff would also be well served by better training in preparing and giving evidence at a disciplinary hearing. Mr. Fox, in explaining his expectations to the staff at Kent, stressed how important it was for the charging officer to review the offence report and any observation reports before giving evidence. Not infrequently, an officer was called to the hearing room directly from his or her post and, on arrival, gave the impression of taking a deep breath, then giving evidence without thinking too much about what he or she was going to say. In some cases the officer, as he or she was about to give evidence, asked to review the offence report. It was Mr. Fox’s practice not to permit this, because he believed it resulted in the officer simply reading what was in the report rather than giving oral evidence. Mr. Routley did allow officers to refresh their memories in this way, although typically it resulted in the kind of testimony Mr. Fox’s practice was intended to avoid.
Two suggestions were made to address these issues. Mr. Fox suggested that a book of precedents be maintained at each institution; it would include well-written offence reports dealing with the most common situations that gave rise to charges. Another suggestion, made by staff members, was that a series of videos be produced from actual disciplinary hearings; these could be shown to new staff during training. Both initiatives could be implemented easily, and, in conjunction with continuing legal education about the Charter of Rights and Freedoms and administrative law, would provide line staff and correctional administrators with the knowledge and skills to discharge their responsibilities in the disciplinary process.
Line staff were also concerned about the lack of feedback in cases where a prisoner was acquitted even though the officer believed that evidence had established the basis for conviction. Under current procedures, institutional staff were excused from the courtroom after giving their evidence. In some cases, the news of acquittal came from the prisoner himself, in the form of "I beat the charge." The officer then had to find out from the institutional advisor what had happened; in many cases, the explanation was both delayed and imperfect. The result was predictable: the officer was left frustrated and with a lack of respect for the process. In the absence of a rational explanation, staff tended to interpret an acquittal either as arbitrary or as a demonstration of the Chairperson’s pro-prisoner bias.
One recommended solution to this problem was that the charging officer come back into the hearing room to hear the Chairperson’s decision. This way, the officer would not be left to speculate on the basis for an acquittal, and the Chairperson’s reasons might prove instructive where the acquittal resulted from deficiencies in the institutional case. Another recommendation was that the Independent Chairperson provide detailed reasons for his decision in writing. As I have explained, the sheet which constituted the principal disciplinary record provided room only for a check against three boxes, "guilty," "not guilty," and "refuses to plead." In my observations, written reasons were rendered only where legal arguments had been raised, almost always by legal counsel for a prisoner, and the Independent Chairperson deemed it advisable to respond in writing to the submissions. At a meeting of Independent Chairpersons for the Pacific Region, I had been advised that this was extremely rare and that some Chairpersons never prepared written reasons. The Independent Chairpersons I observed at Matsqui and Kent always gave reasons for their decisions and, in many cases, quite detailed ones. But while these were part of the taped proceedings, they were not transcribed by the institution. It would not be difficult to transcribe them, although it would involve additional work for the court clerk.
The transcribing of the Independent Chairperson’s reasons would likely have another impact. Mr. Routley had commented to me that upon seeing his oral reasons reduced to writing, in the few cases where a prisoner had appealed his decision to Federal Court, he was less than impressed with either the clarity of his reasoning or the felicity of its expression. The knowledge that the Independent Chairperson’s reasons for decision would be distributed in writing to both staff and the prisoner would no doubt have a salutary effect on the quality of those reasons.
There was one other suggestion put forward by some correctional staff that
went beyond having the charging officer return to the court room to hear
the Independent Chairperson’s reasons for decision. The IPSO and several
correctional supervisors recommended that the charging officer, after
giving evidence, should remain in the courtroom for the rest of the proceedings.
The rationale for this was twofold. First, it would enable the staff to
get a fuller picture of the way in which a disciplinary hearing functions,
rather than limiting their exposure to simply giving their own evidence.
This would increase staff understanding and respect for the process. The
second aspect of the proposal went beyond this educative function and
would give the staff members an expanded function in the hearing. The
staff pointed to cases in which, after hearing from the institutional
witnesses, the prisoner raised a defence which, while it might appear
plausible, was not supported by other evidence. However, because the charging
officer had by this time left the hearing room and did not get to hear
the prisoner’s evidence, the opportunity to point out to the Independent
Chairperson the deficiencies in the prisoner’s defence was lost, with
the result that the Independent Chairperson was hoodwinked into buying
a spurious defence. If the institutional witnesses could remain in the
hearing room, they could question the prisoner where his evidence was,
in their view, inconsistent with the facts.
Dean Fox’s initial response to this suggestion was that while he could understand how allowing the charging officer to remain in the hearing room throughout the proceedings might be helpful in increasing staff understanding of the process, he would not be comfortable, nor did he think it proper, to allow the officers to question the prisoners. It was his responsibility to question witnesses and he was not prepared to modify the procedure in a way which would encourage prisoners and staff to be trading questions (and insults) back and forth, which had the real potential to get out of hand. What he could envisage was that where a prisoner raised an issue that required a rebuttal by the officer, he would ask the officer to come forward and he would direct questions to the officer. Based upon his experience over the years, it was relatively rare where any rebuttal evidence was necessary, and he did not share the staff's concern that there were many cases in which the Independent Chairperson had been sold a bill of goods.
Based upon my own observations, the principal examples where something in the nature of rebuttal evidence was required were in those cases where a prisoner claimed that he was not under the influence of an intoxicant and there were some secondary witnesses, such as a member or the nursing staff. In a number of cases, at both Kent and Matsqui, the Independent Chairpersons adjourned the proceedings to hear this further evidence so they could evaluate the prisoner’s defence. On other occasions at Matsqui Mr. Routley also asked to have the charging officer recalled where an issue was raised by the prisoner that had not been the subject of questions put to the officer when he first gave evidence.
When this issue of the charging officer remaining in the hearing throughout the proceedings was raised with the Inmate Committees, they voiced some strong objections. The principal objection was that this would have an intimidating effect on some prisoners who would be reluctant to give evidence especially where their defence involved the assertion that the officer was lying. As one member of the Committee put it, "After we leave the court room, whether we’re found guilty or not guilty, we have to live with the staff. It’s one thing to tell the judge that this officer is lying and that there is a history of bad feelings between the two of you, after he has left the room; it’s quite another thing to say it to his face when he’s two feet away from you." The other problem the prisoners raised was that allowing the staff member to stay to hear the prisoner’s evidence and then give rebuttal evidence would enable the staff member to tailor their evidence to defeat the defence, which they believed to be unfair. This problem is recognized in criminal trials outside of prison in a situation where rebuttal evidence is given by a witness, for example a police officer, who has remained in the court room to hear the evidence of the accused, by instructing the jury that they can take this into account in assessing the credibility of that rebuttal evidence.
My own judgment on this issue is that it is not necessary for the purposes of ensuring the fairness of the proceedings to have the institutional witnesses in the court throughout the proceedings. The legitimate interest of ensuring that, where relevant, rebuttal evidence can be presented is effectively achieved under the existing procedures where the Independent Chairperson can recall a witness.
That still leaves the other reason for allowing institutional witnesses to
remain in the court room - to observe the whole process first hand, and
thereby gain greater confidence in the process. While this is a legitimate
purpose, it raises significant issues of shifting the power dynamics of
the hearing. Under the existing procedures at both Kent and Matsqui the
uniformed staff members in a typical hearing are the institutional advisor,
and the duty officer. The staff complement increases to three when the
institutional witness comes in to give evidence. If that witness then
remains in the court room, the sense of what I have described elsewhere
as "institutional hegemony" becomes significant. In cases where the prisoner
is viewed as potentially disruptive, additional staff members may be in
the court room, and in all cases in which prisoners are being considered
for the Special Handling Unit, there are three staff members present in
the court room. The prejudicial impact of this further imbalance of power
can be avoided and significant benefit can still be achieved in increasing
the staff confidence in the process, by allowing the institutional witness
to come back into the hearing room to hear the reasons for decision. Alternatively,
staff members can be provided with a written copy of those reasons, if
it is deemed to be more important that they return to their posts after
they have given evidence, rather than remaining outside the court room
to await the decision of the Chairperson.
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