The Case for Institutional Representation
Given my analysis of institutional hegemony, it was initially surprising to hear correctional staff express their sense of being disadvantaged in a disciplinary hearing. The concern voiced during one focus group discussion was along the lines: "When staff come to court they feel intimidated by the process. They are on their own, with no one representing them. The Independent Chairperson gets to ask them questions, the prisoner gets to ask them questions, and then they leave." This problem was aggravated when the prisoner was represented by a lawyer who conducted a cross-examination of the officer. Staff felt this imbalance should be remedied by having someone at the hearing whose role it was to represent institutional and staff interests.
It is easy to dismiss this concern on the grounds that it misconceives the purpose of a disciplinary hearing. Mr. Fox pointed out, quite rightly in my view, that it is the prisoner who is charged with an offence, and it is the prisoner who will be subject to punishment if found guilty. The prisoner is granted rights for this fundamental reason. If the hearing seems slanted in favour of the prisoner, it is because the prisonerís interests are in jeopardy, and his guilt must be proved beyond a reasonable doubt.
From a purely legal perspective, it is possible to end analysis of the issue here. However, a more extended discussion is necessary to distinguish real from imagined concerns. When I first advocated twenty-five years ago that prisoners should have a right to counsel in serious disciplinary cases, correctional administrators and staff recoiled at the idea. They imagined criminal lawyers coming into the prison and demeaning them in front of prisoners through aggressive and intimidating cross-examination. That spectre arose mainly from television and film dramatizations of the role of counsel, which are a far cry from the normal operations of criminal counsel. The charges on the typical docket of disciplinary court are not the stuff of which dramatic cross-examination is made. Even though the appearance of counsel at either Kent or Matsqui was a relatively rare event, and in no case I observed did counsel conduct anything approaching an aggressive cross-examination (indeed, by their own admission counsel were usually far less aggressive than in criminal cases), this spectre still loomed large in the minds of some staff. This unfounded concern by itself would not justify staff representation at a disciplinary hearing.
Nonetheless, there is a serious case to be made for more effective institutional representation at disciplinary hearings. Under existing law and policy, as reflected in practice at Kent and Matsqui, the institutional advisorís role is limited principally to making recommendations on sentences in the event of a guilty plea or a finding of guilt. Even though advisors at both Matsqui and Kent did intercede on occasion to clarify a point of institutional policy or practice, it is fair to say that the advisors often felt stifled, and in their view their inability to participate more fully in the hearing limited the Independent Chairpersonís fact-finding.
Appointing a formal representative for the institution, analogous to a Crown counsel, would create a larger role than that presently envisaged for the institutional advisor. Such a position would also change some functions of the Independent Chairperson. Under present procedures, the Chairperson asks most of the questions, both of staff witnesses and of the prisoner, and in this respect he plays the simultaneous roles of Crown counsel, defence counsel, and judge. Indeed, in the focus group discussion, staff suggested this was an impossible confusion of roles. In most cases I observed, the Independent Chairpersons at Kent and Matsqui managed to juggle these roles with some success. In my judgement, however, too much of a prosecutorial role was played in some cases, and I am sure there were many others in which staff perceived the Chairperson as too defence-oriented. If a prosecuting officer were established, the Independent Chairperson would be relieved of the primary responsibility of questioning witnesses, leaving a residual role of raising questions arising from the examination or cross-examination.
A number of other benefits would flow from a designated prosecuting officer. As with Crown counsel, such an officer would be responsible for reviewing the offence and observation reports to ensure that there was sufficient evidentiary basis to justify a charge and that the appropriate charge had been laid. In preparation for the hearing, the officer would interview and prepare witnesses and ensure that evidence was presented in an orderly fashion. The proper discharge of these responsibilities would go a long way to resolve many of the problems that lead to staff dissatisfaction with the process, a dissatisfaction which in many cases they direct towards the Independent Chairperson or, exceptionally, to the clever talk of a lawyer. In several of my case studies I have shown how acquittals were entered because the wrong charge was laid or the manner in which the evidence was presented failed to establish a case against the prisoner. In a number of cases, witnesses were summoned directly from their security posts, and the order in which they appeared corresponded to the order in which they arrived at the courtroom door. Predictably, this resulted in a disruption of the chronology of events, which militated against the Chairperson gaining a full understanding of the incident. Not infrequently, an officer giving evidence would omit important details because he or she assumed incorrectly that another officer had covered that material in prior testimony. Thus critical elements in the institutionís case failed to be proved. The acquittal of a prisoner under these circumstances inevitably led to considerable bitterness on the part of the staff.
The presence of an institutional representative would also address the problematic issue of adjournments. Though many staff voiced the view that the main reason for lengthy adjournments was prisonersí requests to consult with counsel, in reality adjournments more often were requested by the institutional advisor to accommodate staff scheduling and rotation (a finding certified by the CSCís Evaluation Report ). I observed a good number of cases in which prisoners were prepared to proceed with the hearing but staff were unavailable, and this became apparent only on the day of the hearing. An institutional representative with responsibilities for the conduct of the case would do a much better job of avoiding adjournments due to the absence of witnesses and, in those cases where a prisoner has counsel, of arranging a speedy date for the hearing.
An institutional representative would also act as the principal institutional voice on appropriate sentence. Since the role of institutional representative would be specialized, requiring particular knowledge and skills, the position could not be easily reassigned, a characteristic of the existing process. For example, there were a significant number of occasions at Kent in which there were three different advisors in as many weeks, with noticeable shifts in the sentencing recommendations made for similar offences.
My case studies on the process illustrate that many legal issues of definition and interpretation are raised in the course of disciplinary hearings. These result in prisoners or legal counsel making arguments that require determination by the Independent Chairperson. An institutional representative would ensure that the institutional perspective was taken into account in any decision of this kind. In addition, submissions prepared by that representative would likely be based on consultation with the CSCís counsel in Ottawa, particularly in cases which raised general legal principles that might affect the interpretation of the CCRA in other institutions.
Two further questions arise from the proposal for an institutional representative at disciplinary hearings. First, should such a representative be a lawyer, or at least legally trained? Second, would the presence of such a representative increase the adversarial nature of the process, thus undermining some functions presently served by disciplinary court?
On the first question, a number of staff at Kent suggested that the institution be represented by a lawyer at disciplinary hearings, to counterbalance the fact that prisoners were represented by lawyers. However, it is rare that lawyers actually appear for prisoners and, unless this situation changes (I will later specifically address this issue), having a lawyer represent the institution in all cases would decidedly imbalance the process. Another argument in favour of having a lawyer is that a lawyer would best be able to conduct examination and cross-examination of witnesses and to make legal submissions. Yet given the nature of the evidence at most disciplinary hearings, and bearing in mind that the legal issues tend to be quite specialized, it would be feasible for the function of an institutional representative to be fulfilled by a non-lawyer who undertook a course of training and study in the field.
There would be significant advantages for the Correctional Service of Canada if its own staff were equipped to take on these new responsibilities. The Service has already moved along this path in areas involving program delivery; for example, correctional officers are specially trained to be facilitators in substance abuse and cognitive skills programs. The advantages of a staff person representing the institution in disciplinary cases are several; a staff person would be well positioned to decide whether a charge should be laid, to assess adequate alternatives to the disciplinary process, to determine the seriousness of the charge, and to recommend the appropriate sanction.
There is a more overarching advantage to having a legally trained officer in this position. One of the fundamental issues facing the Correctional Service of Canada is how it can adapt its corporate culture to demonstrate respect for the law and the Charter. The establishment of a legal officer at the institutional level could be an important part of meeting this challenge. In addition to serving as institutional representative at disciplinary hearings, such an officer could assume more general responsibilities for ensuring compliance with the law.
The second question raised by the proposal to establish an institutional representative relates to its impact on the adversarial nature of disciplinary proceedings. In the Federal Court of Appeal decision in Howard, Mr. Justice MacGuigan pointed out that recognition of the prisonerís right to counsel in disciplinary hearings could lead to the introduction of a prosecuting officer, the disappearance of any inquisitorial aspect of the process, and the full acceptance of an adversarial system. He concluded:
I accept this as an accurate estimate of the likely consequences, but not as an argument in terrorem. If that is what fundamental justice requires, it is a step forward rather than a limitation. ( Howard,  2 F.C. 642 at TK).
Based upon my observations of disciplinary hearings in the 1970s, 1980s and 1990s, the reality is that disciplinary hearings are inherently adversarial in nature and practice. This reality derives from both the power dynamics between prisoners and guards and the structure and format of the proceedings. The legal framework provides for a trial-like process, in which the institutionís case is presented with an opportunity for the prisoner to cross-examine witnesses and give evidence in his own defence. Kent correctional staff supported the idea of someone performing the functions of prosecuting counsel in recognition that the proceedings were adversarial and trial-like. For their part, prisoners had no doubt that what was being invoked against them in disciplinary court was the same authority that had sent them to "the pen." The process was more intense and pervasive but no less adversarial.
Page 1 of 1