The Qualifications of an Independent Chairperson
Based upon my observations of approximately 500 cases at Matsqui and Kent, my judgement was that the three Independent Chairpersons who presided over disciplinary court conducted hearings fairly and in conformity with the law. However, the perception of many CSC staff and administrators that the Chairpersons demonstrated a bias in favour of prisoners was counterbalanced by an equally pervasive perception among prisoners that the Chairpersons preferred the evidence of staff. Although there could be considerable improvement in conveying the legitimacy of the disciplinary process to both staff and prisoners by implementing the reforms I have suggested -- better communication of reasons for decisions, a properly trained institutional representative, and a more effective process for prisoner representation -- the polarized atmosphere of the prison virtually ensures that the disciplinary process will be criticized from both ends of the pole. Indeed, Mr. Fox had commented to me at one point that if he heard criticisms from both staff and prisoners, it probably meant he was striking the right balance in his adjudication.
That having been said, some features of the existing disciplinary regime do serve to entrench a polarized view of the Independent Chairperson. Any practices that compromise the perceived independence of the Chairperson necessarily cast a long shadow over the legitimacy of the process. In my interviews with both prisoners and prisoners’ advocates, the perception that some Independent Chairpersons were biased in favour of the institution was closely tied to the nature and continuity of the Chairpersons’ relationship with that institution. Not surprisingly, prisoners feel that a Chairperson who has been assisted and, in effect, educated by institutional staff over a period of time might develop an approach which favours the institution. This would be the case particularly where an Independent Chairperson had a long tenure. For example, the same Independent Chairperson held office at William Head Institution on Vancouver Island from the early 1980s until his retirement in 1999, and his presence at the institution predated that of all but a few correctional staff.
There is a strong case to be made that an effective Independent Chairperson must understand the institutional context within which discipline takes place; developing a feel for the "pulse of the institution" is an important part of this. At Matsqui and Kent, Mr. Routley and Mr. Fox have had tenures of fifteen and ten years respectively, during which time each has developed a depth of experience but also taken pains to maintain a professional distance from institutional advisors and other correctional staff. Both amply demonstrate their independence in both substance and appearance. However, a vigorous grapevine maintained by both prisoners and staff questions the independence and competence of some Independent Chairpersons. It would be easy to dismiss the fruit of this vine as sour, reflecting perceptions which may not accord with actual experience. Yet while the Independent Chairperson occupies the pivotal position on the fulcrum of prison justice, neither the CCRA nor the CCR Regulations identify detailed criteria or qualifications for the position. The CCR Regulations go no further than requiring the Commissioner to appoint "a person, other than a staff member or an offender, who has knowledge of the administrative decision-making process to be an Independent Chairperson to the purpose of conducting hearings of serious disciplinary offences" (s. 24(1)(a)). The problem is compounded by the low rate of remuneration authorized by the federal Treasury Board (until an increase to $350 per day in April 2001, the rate had remained at $300 for more than a decade), which means that in some parts of the country few candidates present themselves as being interested in the position. It is not altogether coincidental, therefore, that many Independent Chairpersons are drawn from the ranks of retired lawyers who accept the positions to "keep their hand in."
The absence of prescribed qualifications also explains the great distance separating the best from the worst Independent Chairpersons, in terms of the quality of their decision-making and their credibility with staff and prisoners. Although the Correctional Service has made some effort to provide training to Chairpersons, this responsibility is left largely in the hands of the Senior Independent Chairperson in each region, and there is significant regional variation in how seriously it is taken up. Mr. Routley, as Senior Independent Chairperson in the Pacific Region, has been particularly diligent in convening regular meetings with his colleagues to discuss issues of common concern, particularly relating to different legal interpretations and practices.
A consistently high standard in the work of the Independent Chairpersons depends on an articulation of the qualifications and qualities necessary for the position, an appropriate level of remuneration, and an active search for the best candidates. The understandable concern about a Chairperson losing independence through long association with a single institution could be addressed through the rotation of Chairpersons within a region, a practice the Senior Independent Chairperson in the Pacific Region has encouraged.
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