My analysis of the underlying sources for the unfairness of the disciplinary process led directly to the reforms I advocated at the conclusion of my early research, the centrepiece of which was the appointment of an Independent Chairman to the disciplinary board.
This study suggests that prison administrators and staff
have perceptions of the nature of disciplinary proceedings that place
a low priority on the value of due process and the procedural protections
which give it meaning, and that the mere provision of such protections
without ensuring the implementation by officials imbued with a sense of
their value is likely to result in their being circumvented . . .
The crux of any real reform lies therefore in an impartial disciplinary
tribunal, in the sense of one which will approach cases free from bias
based upon prior knowledge of the inmate and which will handle the task
of discipline in a spirit of maximizing rather than undermining the procedural
protections designed to ensure a fair hearing . . .
. . . [T]he proper response to the need for an impartial tribunal is to
have a truly independent chairman of the disciplinary board, that is,
someone who has no particular ties or allegiance to the administration
of the prison or to the federal penitentiary service. Not only would such
an independent chairperson avoid the bias of personal knowledge of the
parties involved but also the bias of institutional pressures. He would
not be threatened, as is the present administration, by the prospect of
disrupting staff morale, and his examination of the facts would not be
encumbered by an automatic presumption against the inmates' credibility.
(Jackson, Justice at 63-65)
I also recommended that Independent Chairpersons be legally trained and therefore familiar with the elements of a fair hearing. Since part of the work of a disciplinary board, like that of an outside court, is an educative one, the Chairperson would be involved in legitimating due process values in the eyes of all participants, and a legally trained Chairperson would be better equipped for this role. In response to the concern that having an outside person presiding over disciplinary hearings would undermine the flexibility of the warden's court system, as part of the institutional decision-making fabric, I suggested that prison staff could become involved at the sentencing stage. The Independent Chairperson would deal with the adjudication of guilt or innocence, but a panel of advisors drawn from the institutional staff could advise the Chairperson in a non-binding way on what constituted a fair sentence.
My recommendation that Independent Chairpersons adjudicate serious disciplinary offences was endorsed in 1975 in the report of the Study Group on Dissociation established by the Solicitor General to review the use of punitive and administrative segregation. That group concluded: "The present composition of the disciplinary board prohibits the appearance of justice. This will continue to be the case as long as the director or assistant director . . . chairs the board" ( Report of the Study Group on Dissociation, [Ottawa: Solicitor General of Canada, 1975] [Chairman: James A Vantour] at 76).
The Study Group on Dissociation recommended that independent disciplinary board chairpersons should be employed on a one-year experimental basis in two of the five regions of the Penitentiary Service. No action, however, was taken by the Solicitor General. Two years later, the House of Commons Sub-Committee on the Penitentiary System in Canada strongly recommended that "Independent Chairpersons are required immediately in all institutions to preside over disciplinary hearings" ( Report to Parliament, recommendation 30 at 91). The Sub-Committee observed, "It is especially unsuitable that the director of an institution should be in charge of the proceedings, since he is an interested party in a case. Moreover, he is in an extremely difficult situation if he acquits an inmate against staff testimony, when he must later rely on the same staff to control the same inmate" ( Report to Parliament at 90). The Sub-Committee expressed its view that the Report of the Study Group did not go far enough by recommending the gradual implementation of Independent Chairpersons; rather, "Independent Chairpersons for disciplinary hearings are required immediately as a basic demand of justice in all penitentiary institutions in Canada" ( Report to Parliament at 91).
The Solicitor General acted upon the House of Commons Sub-Committee's recommendation, but only to the extent of appointing Independent Chairpersons in maximum security institutions. The first such appointments were made in December 1977. Subsequently, in June 1980, Independent Chairpersons were appointed in medium security institutions. Amendments were made to the Penitentiary Service Regulations to provide the necessary legal authority for the appointment of Independent Chairpersons and to clothe them with the jurisdiction to adjudicate serious disciplinary offences. The amended regulations also made provision for institutional staff advisors and required the Independent Chairperson to consult with those advisors in the presence of the accused prisoner (S.O.R./79-625, s. 36(1) ).
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