Disciplinary Hearings and the Right to Counsel

One of the conclusions I drew on the basis of my 1972 study of the disciplinary process at Matsqui Institution was that in a significant number of cases where a not guilty plea was entered, a lawyer's participation would have resulted in a trial more consonant with a fair hearing than what actually occurred. Some cases showed the need for lawyers' skills where there was either some ambiguity as to the offence charged or complicated factual questions to determine. Cases also arose where a lawyers' participation would have resulted in the injection of concepts originally developed in the context of criminal law but which had equal relevance to a disciplinary charge. In 1972 the idea that lawyers should play a role in prison disciplinary hearings was viewed by prison administrators as heretical. Indeed when I suggested the idea to a former warden of the B.C. penitentiary -- a man who came from a military background -- he responded with a steely look that clearly signalled to me that, had he had the power, he would have had me court-martialled! Nor would the concept have had much more chance of being recognized by Canadian courts given the prevailing law that, with a few exceptions, prison disciplinary hearings were not subject to judicial review.

As I have described in an earlier chapter, in 1979 the Supreme Court of Canada in the landmark decision of Martineau (No. 2) ruled that prison disciplinary proceedings were subject to the common law duty to act fairly. That same year the Commissioner's Directives were amplified to reflect the Correctional Service of Canada's understanding of the procedural implications of Martineau. That amplification contained for the first time a specific reference to representation by counsel. Annex A to the Commissioner's Directive provided:

Occasions have arisen where an accused has made a formal or informal demand that he be represented by Counsel. Such demands shall be met with the response that he is not entitled to counsel, and that the hearing will proceed without the accused person being represented. (Annex A to CD #213, 17 May 1979).

This exclusionary provision was the subject of judicial scrutiny in a series of cases before the Federal Court in 1981 and 1982. In those cases the court ruled that since a disciplinary hearing must be conducted in accordance with the duty to act fairly, the Independent Chairperson had a discretion to permit representation by counsel where it was necessary to ensure a fair hearing. To the extent that the Commissioner's Directive sought to apply a blanket policy of exclusion of counsel it was not legally effective to limit the Chairperson's discretion. The courts made it clear that they were not creating a right to counsel and that the circumstances in which counsel would be necessary were circumscribed by the nature of prison justice.

In Re Blanchard and Disciplinary Board of Millhaven Institution (1982) 69 C.C.C. (2nd) 171 (F.C.T.D.) . Mr. Justice Addy expressed this view on legal representation for a prisoner before the disciplinary court:

There is no right to counsel; whether counsel representing the prisoner is to be allowed to be present is a matter for the discretion of the chairman conducting the inquiry. Occasions might possibly arise where matters are so complicated from a legal standpoint that the duty to act fairly might require the presence of counsel, but I cannot at the moment envisage such a situation, especially where the person conducting the inquiry is a legally qualified barrister and solicitor, as in the present case. Furthermore, the questions arising in these disciplinary proceedings are, generally, of a factual nature.

The prisoner must be mentally and physically capable of understanding the proceedings and the nature and details of the accusations, of taking cognisance of any oral or written evidence presented, of questioning witnesses and of presenting his version of the matter. Where there is any doubt as to the prisoner's capability to so take part in the proceedings, then, in order to act fairly, the chairman must first satisfy himself on that issue before proceeding with the hearing. (at 171. See also Minott v. Presiding Officer of the Inmate Disciplinary Court of Stony Mountain Penitentiary [1982] I F.C. 322 (F.C.T.D.)

Notwithstanding that the Federal Court had clearly established that Independent Chairpersons had to exercise their discretion to permit representation by counsel where such representation was necessary to ensure a fair hearing, the practice at both Kent and Matsqui during my 1983 study was to meet any request for counsel with a blanket refusal. Indeed Independent Chairpersons seemed unaware of the relevant Federal Court rulings in this area. In one occasion where the prisoner requested counsel, he was met with the answer, "You can't have a lawyer. The law says they can't be here"; in another case the prisoner was told, "Ottawa doesn't allow it". In both institutions, however, the Chairpersons were prepared in these cases to adjourn the case in order to permit the prisoner to consult with counsel. This did not change the fact that in no case during my observations in 1983 was counsel present at any disciplinary hearing.

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