Mr. Benning directed Mr. Routley's attention to the following facts: the incident had taken place on the night of September 15 and the men had been taken to segregation early on the morning of the 16th; the charges were laid and designated as serious by Unit Manager Brenda Lamm on September 25; because the charges were not served on the prisoners until the 29th, they did not make their first appearance until October 7; the trial date was October 14, four weeks after the incident, during which time the prisoners had been kept in segregation until October 13. It was Mr. Benning's submission that the facts giving rise to the charge of participating in a disturbance were known to the institution on the morning of September 16 when the prisoners were placed in segregation, and while a reasonable period should be allowed for the various incident reports to be collected and assessed to determine the appropriate charge, this could and should have been done prior to September 25, particularly since the prisoners were in segregation.

Mr. Routley, while agreeing that there was an unusually long period between the date of the incident and the laying of the charges, expressed the view that such a delay might be reasonable where there were exceptional circumstances. He therefore asked the institutional advisor whether he wished to present any evidence that might explain the reasons for the delay in this case. The advisor, Mr. Farrell, suggested that Unit Manager Lamm be called, as she was the person who had designated the charges. Ms. Lamm explained that the incident that had given rise to the charges was an exceptional event that had involved a large number of correctional staff and the RCMP. She, together with other managers and staff who had remained at the institution the whole night, had gone home to sleep the next day and the institution had therefore been running on a much reduced staff complement. Both the RCMP and the CSC embarked upon their own investigations into the incident and part of the CSC's investigation had been to determine what were the appropriate charges to lay against the prisoners and who was the best staff member to write up the offence report to support those charges. Ms. Lamm pointed out that in the aftermath of such an incident, the laying of charges was not the only thing that had to be considered. In this particular case the general population had been locked down and one of the priorities was to get the institution back to its normal routine; because extensive damage had been done to the pool room, clean-up work was necessary. She also explained that the normal process in determining whether and what charges should be laid involved the review by a correctional supervisor of the offence report together with any other observation reports. In this case, the officer who had written the offence report, CO-II Hanbury, only completed that document on September 22. Ms. Lamm suggested that her designation of the charge, three days later on September 25, was not in all the circumstances an unreasonable delay.

Mr. Benning, in his cross examination, asked why it would have taken Officer Hanbury so long to write up his offence report, given that he was on duty on the night of the 15th and was therefore in full possession of all necessary facts upon which to base an offence report, and in light of the normal procedures that required an officer to complete an offence report prior to going off shift. Ms. Lamm responded by pointing out that this was an exceptional incident that occupied the staff's attention for some eleven hours and that after the prisoners were taken to segregation, there was a debriefing process for the staff involved, conducted by the psychologist, to help staff cope with the stress and anxiety such incidents generated. Under these circumstances it was not always possible to write up observation reports and complete offence reports before going off shift. Mr. Benning then asked Ms. Lamm to review three observation reports that had been completed on September 15 and 16 prior to the officers going off shift. (These reports had not been attached to the offence report served on the prisoners that form part of the disciplinary record provided to the Independent Chairperson, but had been supplied to the prisoners as part of the disclosure process prior to their 5 day segregation review.) These observation reports included one written by Officer Hanbury himself, which was in identical terms to the offence report that he wrote up seven days later on September 22. Mr. Benning asked Ms. Lamm why, if Officer Hanbury had had enough time to write up an observation report before the end of the shift on September 15-16, it would have required another seven days for him to write up an offence report which repeated, word for word, what he had written previously. Ms. Lamm's response was that there was an intervening process that required the attention of the correctional supervisor to determine who, based upon the available observation reports, was the appropriate officer to write the offence report.

The institutional advisor then asked that Correctional Supervisor Buhay be called to the hearing, since she was the person who had reviewed the observation reports and referred them to Unit Manager Lamm for designation. Ms. Buhay in her evidence stated that she was at the Staff College from September 14-19 and therefore was not in the institution when the incident giving rise to the charges took place. Mr. Routley asked what her involvement was in the reviewing of the charge against Mr. Hickey and the other prisoners. She responded that when she reviewed the observation reports following her return to the institution she attached no particular significance to them or the fact that the prisoners involved were in segregation; she gave them no priority and dealt with them when they made their way to the top of her work basket. She made no specific inquiries of Officer Hanbury or anyone else before referring the charges to Ms. Lamm. She also testified that the charges could have been reviewed by any other correctional supervisor.

Following Ms. Buhay's evidence, the Institutional Advisor, Mr. Farrell, after reviewing the staff roster, advised Mr. Routley that Officer Hanbury, after completing his shift on September 15-16, when the incident took place, had the following three days off work on his rest period. This might explain why he did not get round to writing an offence report until September 22, which was the following Tuesday. At the conclusion of his evidence, Mr. Routley requested that Mr. Benning present him with submissions in support of his motion to dismiss the charge on the grounds of unreasonable delay. The hearing was then adjourned to November 25, which was Mr. Benning's next available date. On November 25, Mr. Benning presented an oral argument in support of his submission that the charge against Mr. Hickey be dismissed because of unreasonable delay in the laying of the charges. Mr. Routley reserved decision and in a written judgement dated December 7 dismissed the charge against Mr. Hickey and the other prisoners. His judgement contained the following analysis of the issues:

Counsel asserts that the institution has failed an obligation to diligently review and determine the prosecution of an inmate held in segregation as a result of an incident . . . I agree. On the facts before me, there is no reasonable explanation for the lapse of time between the incident and the prosecution of the inmate held in segregation. The time required for such "investigation" is in this case a "red-herring." Thorough and detailed reports were done immediately by Officers Hanbury , Harold and Riley. It is lamentable that this reports were not appended to the charges presented to me as ICP, but rather only came to light through the efforts of the defence counsel.

What was presented to the ICP was a seven line condensed report of Officer Hanbury, ostensibly prepared at the noon hour on September 23, at the outset of the second week of administrative segregation. One is left to muse what was in the mind of the officer when, following instructions, he set to the task of writing nine times a précis of the report he had prepared the week before, and within hours of the incident.

The legislative thrust underlying the creation of the prison disciplinary court apparatus is to create an expeditious and summary resolution of prosecution. Support for this postulate is found in both the CCRA and the CCR Regulations. For example, Regulation 29 states:

When an inmate who is charged with a disciplinary offence is placed in administrative segregation as a result of the conduct that gave rise to the disciplinary charge, that inmates shall be given priority over any other hearings of disciplinary offences.

Clearly, for this regulatory mandate to have any substantive meaning, it must apply to a circumstance such as considered herein. Just as the application of such a hearing priority must be reasonable in the context of all the factual circumstances, so to must the process of the initiation of an inmate offence report and notification of charge be reasonably timely.

While there may be circumstances where, (despite reasonable efforts to expedite the laying of a charge concerning an administratively segregated inmate), such investigation and documentation could take ten days, this is not the circumstances before me. Moreover, the need to always be mindful of the segregated status of an inmate is repeated in section 31(2) of the CCRA.

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.

For all the foregoing reasons, I dismiss the charge against Inmate Hickey entering a finding of not guilty in this and eight other prosecutions. (Reasons for Judgement of Senior Independent Chairperson Keith Routley, December 7, 1998)

Mr. Routley's decision reactivated many of the familiar complaints against the Independent Chairperson. Here was lawyer Peter Benning making a technical legal argument accepted by a legalistic independent chairperson that had the effect of allowing a group of prisoners who had gone on a drunken rampage, requiring an all-night vigil by both the staff and the RCMP, that had resulted in thousands of dollars of property damage, to walk away as innocent lambs. As I will explain in a later chapter, this characterization failed to take into account that the nine men were kept in segregation for 27 days prior to their trial in disciplinary court and hardly, therefore, escaped scott-free. However, from an institutional perspective, justice was not done through the formal disciplinary process but by the application of the prison customary law of segregation.

As a final test run of my proposals for reform of the disciplinary process, it is worthwhile considering how differently these cases would have been handled under a reformed process. From the prisoners' perspective, this was a case in which legal representation was essential to a fair hearing. The charges, involving as they did allegations of hostage-taking, organized resistance and property damage in the thousands of dollars, were extremely serious and, if convicted, the prisoners would have a blot on their prison records which would likely take many years to erase. Convictions, quite apart from the immediate consequences of receiving sentences of segregation and having their limited wages burdened with large restitution orders, would destroy any possibilities of transfer to lower security and would later loom large in any risk assessment made by the National Parole Board. My own assessment of the facts suggested that within the group there were those with more responsibility for the events than others and some who were indeed trapped in the room with no reasonable means to avoid their continued presence for the duration of the incident. Yet, in the absence of legal representation, they ran the very real risk of being convicted with a finding of joint culpability. Access to counsel would also have been helpful to these men in seeking to avoid the 27 days they spent in administrative segregation pending the hearing of their disciplinary charges.

From an institutional perspective, the cases would have taken a quite different trajectory under my reformed process. The institutional staff responsible for the disciplinary process would have reviewed the officers' observation reports within a few days of the incident and would have determined the appropriate charges to be laid. This would not only have included the charge of participating in a disturbance but also damaging government property. Given the importance of a disciplinary process, the reviewing of the offence reports and the designation of the appropriate charges would not have been put on a back burner but would have been afforded the priority commensurate with the legal obligation to proceed in a reasonable, expeditious manner given that the prisoners were in segregation. If there had been some delay in the laying of charges because of the absence of key players from the institution or the need to see whether the RCMP would be recommending that criminal charges be laid in outside court, the institution would be in a position to present a proper submission to the Independent Chairperson in which they would argue there were reasonable grounds for the delay. The Independent Chairperson would then have the benefit of both submissions from the institution as well as from the prisoners' lawyer upon which to base a principled decision. The reasons of the Independent Chairperson, whether favouring the arguments of the institution or the prisoner, would be given wide distribution within the prison, helping the staff understand the principles and practice of prison justice within a culture of legality. Contrast this with what actually happened; Mr. Routley's carefully wrought reasons were not even read but his dismissal of the charges entered the oral history of Kent as another faultline, not in the way the institution discharged its responsibilities but in the way the Independent Chairperson performed his.

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