SECTOR 3:
CHAPTER 1

THE DISCIPLINARY PROCESS 1972-1992:
WARDEN'S COURT TO INDEPENDENT CHAIRPERSONS

When I began my research in Canadian prisons in 1972, I set out to understand how the administration of prisons related to the overall administration of criminal justice. In my first year of teaching criminal law in the Faculty of Law at the University of British Columbia, I had come across a book with the evocative title Military Justice Is to Justice as Military Music Is to Music (Robert Sherrill [New York: Harper and Row, 1970]). Did prison justice have the same asymmetrical relationship to justice? Certainly some American scholars had drawn that conclusion in characterizing the U.S. prison as a "lawless agency" (David Greenberg and Fay Stender, "The Prison as a Lawless Agency" [1972], Buffalo Law Review , 799).

My focus initially was on the internal disciplinary process. I chose that area because it represents the private criminal law of the prison; as in the larger public system, the disciplinary system in the prison defines the limits of behaviour which will be accepted without official intervention, sets out procedures for dealing with those suspected of violating these limits, and prescribes sanctions for those convicted of violations.

In comparing this private system with the public system of criminal justice, I sought to identify differences, whether of principle or process, and to evaluate those differences in light of the overall goals of criminal law, the particular goals of corrections, and the exigencies of prison administration. My dominant concern was "to see if prison justice is a fair system, and if not, how it can be made fair" (Michael Jackson, "Justice behind the Walls: A Study of the Disciplinary Process in a Canadian Penitentiary" [1974] 12 Osgoode Hall Law Journal 1 at 2). When I began my research at Matsqui Institution in 1972, disciplinary hearings were the prerogative of prison wardens or their delegates. It had been this way since Kingston Penitentiary opened in 1835. During my first few days I heard from both prisoners and prison staff of the way discipline was handed out by the warden of the B.C. Penitentiary. On the floor in front of the warden's desk were two footprints where prisoners were required to stand. They were escorted into his office accompanied by the refrain, "March the guilty bastard in." Initially I thought these stories to be folkloric, but the footprints were real enough, and the stories were repeated often enough by both groups to make it clear that this "kangaroo court" was indeed part of the B.C. Pen's history.

When it came to the disciplinary process at Matsqui Institution, however, I heard conflicting stories from the keepers and the kept. Prison administrators assured me that the differences between the B.C. Pen and Matsqui went far beyond the thirty miles that separated the two institutions. The traditions of the B.C. Pen were, like its architecture, based in the nineteenth century. Placed high on a hill overlooking the Royal City of New Westminster, the B.C. Pen was intended, through its Bastille-like appearance, to warn the populace of the wages of sin and the pains of punishment for those who violated the Queen's peace. For almost a hundred years the B.C. Penitentiary was as elemental a part of the lexicon of crime and punishment as the Criminal Code . Indeed, its hold on the public imagination was more visceral.

By contrast, Matsqui was a modern institution. It had opened in 1966, and from the beginning it was organized around the philosophy and principles of correction and rehabilitation, not punishment and deterrence. I was assured I would find no footprints in the warden's office there. But prisoners suggested that the absence of those footprints, like the absence of high, forbidding walls, did not mean prison justice was more benevolent at Matsqui. They insisted that the warden's court there, no less than its counterpart at the B.C. Penitentiary, was a kangaroo court.

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