The Warden's Court: 1972

As I explained in Sector 1, in 1972 the Penitentiary Act and the Penitentiary Service Regulations provided only a skeletal framework for the prison disciplinary process in Canada. The fleshing out of that skeleton was left to Commissioner's Directives, and it was in these directives, the subsidiary divisional instructions and institutional standing orders that the detailed procedures for disciplinary hearings were to be found.

Under these procedures, serious disciplinary charges were to be adjudicated by the prison warden or his deputy. The Commissioner's Directives elaborated a framework designed to ensure procedural fairness. Thus it was provided that no finding should be made against a prisoner unless he had received, in advance, a written notice of the charge and a summary of the evidence alleged against him; had appeared personally at the disciplinary hearing; and had been given an opportunity to make his full answer and defence to the charge, including the questioning of witnesses and the introduction of witnesses or written material, either in denial of the offence or in mitigation of punishment. (Details of the 1972 procedures can be found in Jackson, Justice (1974) at 30.)

My first impression on reading the rules was that disciplinary proceedings in the federal prison system were surrounded by substantial due process protections, and, at least their procedural aspects were a fair approximation of the basic elements of a criminal trial. However, after four months of observing disciplinary proceedings at Matsqui, I concluded there were vast differences between a criminal trial and a disciplinary hearing. I summarized those differences in this way:

The dominant features of the disciplinary proceedings were that there was a general presumption of guilt as opposed to a presumption of innocence; a confusion of the issue of guilt or innocence and that of appropriate disposition; a reliance on informal discussion concerning these issues, much of it based on hearsay and rumour, carried on out of the presence of the inmate accused; and a lack of concern for uniformity of sentences for offences of similar nature. (Jackson, Justice at 31)

I found also that prison administrators did not place a high priority on due process values, and that adjudication was concerned mostly with maintaining the goals of the rehabilitative ideal or reinforcing institutional interests relating to security and staff morale. The superintendent of Matsqui, who presided over most of the disciplinary proceedings, expressly linked his handling of them to the individualized treatment model he saw as underlying the overall rehabilitative plan at Matsqui.

As he explained it, his purpose in the disciplinary proceedings was to force the inmate to accept responsibility for his own actions and to participate in the appropriate disposition to ensure better behaviour in future. He saw the regular criminal justice system, with the adversary process, its rules of evidence and its inevitable lawyers, as designed to enable criminals to avoid the responsibility for their actions by leaving it to the lawyer to fight the case. He was not prepared to perpetuate that process in the prison because inmates were past masters of what he called "the cops and robbers" game and he was determined not to get involved in that game since he saw it as unproductive in rehabilitative terms.

The effect of this kind of philosophy on the operation of the disciplinary hearing was to focus attention on the disposition of the case rather than the issue of guilt, since by presuming guilt and minimizing any real issue as to innocence, the inmate is fairly effectively denied an opportunity to play the "cops and robbers" game. Thus the presumption of guilt, which is the dominant impression of the proceedings, is functionally related to the basic assumption behind the proceedings." (Jackson, Justice, at 32)

Although the procedural rules required that prisoners be provided with written notice of the charge and a summary of the evidence alleged against them, I found that these requirements were not met at Matsqui. Typically, prisoners were told of their impending appearance in warden's court on the morning of the hearing. The evidence against the prisoner was presented at the hearing itself, and in no cases were prior written summaries of evidence provided. Given the treatment theory of discipline, this non-compliance was not seen as a major issue, "because if the inmate [was] not aware of the evidence that would be given against him, he clearly is not in a good position to make up a story and therefore [was] less able to play the 'cops and robbers' game" (Jackson, Justice at 34).

From my direct observation of disciplinary proceedings and from interviews with prisoners tried in warden's court, I concluded that the disciplinary process at Matsqui lacked the essential attributes of objective and fair adjudication. This conclusion was based in part upon the lack of proper notice, the confusion of the issues of guilt and disposition, and the extensive discussion of the case that took place in the absence of the prisoner, but it was also related to a more fundamental concern. The overarching flaw in the warden's court system was that the very people responsible for maintaining the good order of the institution were the ones judging whether prisoners had committed offences against that good order. The judges, in other words, were the offended parties. Furthermore, these adjudicators brought to the hearings considerable personal knowledge of the prisoners, based on previous dealings, and it was therefore impossible for them to approach a particular case free of that bias. A further source of bias prejudicing objective judgement was a perceived need of prison administrators to maintain staff morale by accepting the testimony of guards where it conflicted with that of prisoners.

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