The Independent Chairperson's Court: 1983
In 1983 I returned to Matsqui Institution, and over a six-month period observed the disciplinary hearings presided over by the Independent Chairperson. I expanded the scope of my original study by also observing, over the same period, the disciplinary proceedings at Kent, a maximum security institution. At Matsqui a single Chairperson conducted all hearings, but at Kent the docket was handled by two Chairpersons on a weekly rotational basis. As with most Independent Chairpersons appointed across the country, the three Chairpersons at Matsqui and Kent were members of the legal community. The Matsqui Chairperson had recently retired from a long career as general counsel to the B.C. Telephone Company One chairperson at Kent was a retired provincial court judge and the other was a retired lawyer who had practised as a criminal defence counsel.
The primary purpose of my 1983 study was to investigate whether the changes to the federal disciplinary process had resulted in a system which exhibited the hallmarks of fairness and accorded with principles of fundamental justice. The independence of the Chairperson was the single most important feature distinguishing between the disciplinary processes of the 1980s and the 1970s. I therefore set out to compare the conduct of cases before the Independent Chairpersons at Matsqui and Kent with similar types of cases I had observed in warden's court in my 1972 study. At the end of my research period, I concluded that there had been a significant number of acquittals before the Independent Chairpersons in circumstances where, under the old regime, convictions would almost certainly have been entered; the difference was attributable to the Chairperson's being prepared to render a decision based upon a reasonable doubt, notwithstanding strong institutional pressures for conviction. My conclusion that the independence of the Chairperson played a significant part in the outcome of cases was supported by a comparative analysis of the rate of acquittals. In 1972, under the warden's court system, the acquittal rate at Matsqui Institution was less than 10 per cent. For the years 1981, 1982, and 1983, under the Independent Chairperson system, the rates ranged from a low of 22 per cent to a high of 29 per cent, the 1983 figures therefore representing almost a tripling of the 1972 acquittal rate.
In 1972, the prisoners I spoke to about their experiences in warden's court called it "a kangaroo court." Eleven years later, halfway through my six-month research period at Matsqui and Kent, I questioned prisoners through interviews and a questionnaire about their experiences of the Independent Chairpersons. Here is a sampling of their responses:
There is no difference between the Independent Chairperson
and the warden's court. The institution controls the judge.
The ICs are not fair, but they are better. The warden was totally biased.
The problem with the hearings is that the Chairperson may have all the
best intentions in the world, but the advisors are biased. They should
be from the street. At first the Chairperson's decisions seemed fairer
than they are now. It seems that the more times he is here, the less objective
I don't look at it as fair or unfair. Just the way it is. I know one thing:
if they want, they'll get you sooner or later.
While falling short of condemning the Independent Chairperson process, these comments clearly are less than fulsome in their praise. How were they to be explained in light of my own judgement, based on both observation and an analysis of acquittal rates, that Independent Chairpersons acquitted prisoners on a regular basis in circumstances where wardens would almost certainly have convicted them? Did this difference suggest that, whatever reforms are introduced, prisoners will always see the system as unfair and biased against their interests, or were there good reasons, grounded in prisoners' experience of the process, to explain their criticism? During my six months of observations at Matsqui and Kent, I discovered elements of the disciplinary process as administered by Independent Chairpersons which justifiably undermined prisoners' confidence in the independence of the process.
At Matsqui, every prisoner I interviewed said that, in his experience, it was the staff advisors, and not the Chairperson, who determined the outcome of a case. Regulations and Commissioner's Directives, in setting out the respective roles of the Independent Chairperson and the staff advisors, focussed on the advisors' role of recommending the most appropriate punishment. At Matsqui in 1983, the standard practice of the Independent Chairperson was to ask the advisors for their recommendation; if both of them agreed on a sentence, which they usually did, he adopted that sentence as the sentence of the court without further discussion. As recorded in my research notes, the following exchange, which came after the conviction of a prisoner on a charge of using abusive language, reflects this practice:
Chairperson : Okay,
advisors -- what's your recommendation for sentence on this one?
First Advisor : There have been too many
cases of abusive language. I recommend 10 days in SCU and 10 days' loss
Second Advisor : I agree.
Chairperson : That's the sentence.
The Independent Chairperson at Matsqui held the view that his decisions should not be made in an institutional vacuum. Since the staff advisors knew exactly what was happening in the prison, he felt that by adopting their recommendations on a sentence he could ensure that his decision was woven into the fabric of institutional life. While this practice was certainly appreciated by prison staff, it predictably had quite the opposite impact on prisoners. Given that most prisoners charged with disciplinary offences either pleaded guilty or were found guilty (a situation which parallels that of accused persons in the criminal justice system outside of prison), the fairness of the sentence is the critical issue. To find that this element of the case was decided by institutional advisors, as prisoners did at Matsqui, made it difficult for them to see the Chairperson as anything more than a figurehead. That perception was expressed by several prisoners who, as they left the hearing room, disdainfully commented, "I thought you were the judge."
At Kent Institution, the advisors' recommendations on sentence were not automatically adopted by the Independent Chairpersons. However, at Kent another practice undermined the perceived independence of the Chairpersons just as drastically. That practice, adopted by one of the Chairpersons, required the prisoner, after a finding of guilty, to leave the hearing room so that the advisors could make their recommendations about sentence in the absence of the accused. This meant the prisoner had no way of knowing what the advisors said to the chairperson and, therefore, no way of knowing whether the chairperson had exercised independence of judgement in determining the sentence.
One of my criticisms of warden's court proceedings had been the inconsistency in sentencing. I observed that the disciplinary board at Matsqui in 1972 "was simply fixing a sentence which they felt 'appropriate' without placing any particular value on the concept of treating like cases alike" (Jackson, "Justice," at 54). Legally trained Independent Chairpersons, I argued, would bring with them an understanding of the importance of treating like cases alike and be in a better position to develop a consistent set of sentencing principles and practices. A necessary focus of my inquiry in 1983 was, therefore, how well the Independent Chairpersons met these expectations.
The disappointing conclusion I drew was that sentencing by the Independent
Chairpersons at both Matsqui and Kent still lacked the hallmarks of a
fair, consistent, and coherent system of justice. At Matsqui, I identified
three reasons for the lack of consistency. First, it was the advisors
at Matsqui who determined the sentence, yet senior staff acted as advisors
on a rotating basis. A second reason for disparity was related to overcrowding
in the segregation unit. There were many weeks when the segregation unit
was full, and at such times the advisors recommended sentences that involved
a suspended period of dissociation and/or loss of remission. When there
was room in the segregation unit, the same advisors would recommend, for
the same offence, a dissociation sentence which was not to be suspended.
From the staff's point of view, one can argue they had little choice;
however, the need to manipulate the sentence to accommodate space in segregation
inevitably imparted an arbitrary aspect to sentencing. The third reason
for disparity in sentencing brings us back to a question of principle
or, perhaps more correctly, a lack of principle. There was no more commitment
at Matsqui in 1983 to treating like cases alike than there had been under
the warden's court system. Although the disciplinary records that provided
a bird's-eye view of broad trends in sentencing for particular offences
were available, neither the staff nor the Independent Chairperson saw
fit to review these records. Rather, they developed what might be termed
the custom of individual cases: each advisor brought to bear his sense
of what the right sentence should be. Even those advisors who articulated
some understanding of the need to be fair, in terms of consistency, did
not seek out the information to make that a reality. In addition, the
need for recommendations to accommodate the practical pressures of overcrowding
often made the idea of principled recommendations seem futile.
Life in the prison must go on, and most prisoners do not spend much time trying to figure out why some of them are sent to the hole for five days for an offence and others end up there for ten or fifteen days -- or serve no segregation time at all for doing the same thing. But like waves on a beach, this knowledge washes through the prison every day, continually eroding prisoners' respect for the authority that imprisons them.
How did things compare at Kent Institution in 1983? The problems of overcrowding, while present, were not so pressing, and while sentences in some cases were influenced by the fact that the segregation unit was full, this was less of an issue. However, based upon my observations at Kent and a review of the disciplinary records for the previous year, my conclusions regarding the sentencing process by the Independent Chairpersons there were virtually the same as at Matsqui. One searched in vain to find evidence of any principle of treating like cases alike, or indeed, any coherent principles of sentencing at all.
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