On my first visit to Kent Institution following the promulgation of the amendments I asked several senior staff what they understood to be the reason for the introduction of the new intermediary offence. Their response was that it was designed to get around the Howard decision, since the right to counsel for the prisoner was only applicable for serious offences. My initial impression of this response was that it was an overly cynical one. My view, however, quickly changed when I was shown by one of the Independent Chairpersons a memorandum he had received from the Correctional Services' legal counsel explaining the new amendments. It stated in relevant part:

The amendments are very important with respect to the classification of offences. There will be three categories of offences, only the cases falling into the flagrant or serious offence category will qualify for representation by counsel, inasmuch as the accused inmates have remission to their credit. (Memorandum from Suzanne Poirier, 24 June 1985).

To interpret the Howard case as limiting the right to counsel to one in which prisoners' remission was in jeopardy is to read the case in its narrowest form. Howard in fact was sentenced to a loss of remission and the Court therefore naturally focused its analysis on the liberty interest such forfeiture involved. But the Court, in speaking of the circumstances in which the prisoner would have a right to representation, stated that this would depend "on the circumstances of the particular case, its nature, its gravity, its complexity and the capacity of the inmate himself to understand the case and present his defence. The list is not exhaustive."( Howard, at 663).

Even if Howard could be read as affording a right to counsel only where remission was at stake, to see the intermediary offence category as a means to avoid the implications of the decision was flawed. While a prisoner could not be sentenced at the disciplinary board hearing to loss of remission for an intermediary offence, he would nevertheless have his liberty interest affected as a result of the earned remission scheme. This is because under the regime in place in 1985, every month a prisoner's case was reviewed by the Earned Remission Board to determine whether the prisoner would be credited with up to 15 days remission of sentence. In making that determination for every three days spent in punitive dissociation (as a result of a sentence imposed by the Disciplinary Board) a prisoner would fail to earn one day of remission and, depending upon the gravity of the offence, the Earned Remission Board could fail to credit up to the maximum of 15 days remission for that month. In my review of the earned remission awards for Kent Institution in the month following the new amendments introducing the intermediary offence category, the prisoners who were convicted of intermediary offences were dealt with very severely by the Earned Remission Board. In one case the prisoner was charged under subsection (k) with doing an act calculated to prejudice the discipline and good order in that he was found in another prisoner's cell at five o'clock in the morning. At the hearing before the Independent Chairperson, the prisoner received a suspended sentence of 15 days dissociation. As a result of the decision of the Earned Remission Board he failed to earn 10 days remission. In two other cases, prisoners convicted of threatening officers who received disciplinary sentences of 10 days loss of recreation privileges in the one case and 10 days punitive dissociation in the other, both failed to earn the maximum 15 days remission.

For these prisoners and indeed for all prisoners who inevitably failed to earn remission following conviction of an intermediary offence, to be told that they did not have the right to counsel because, at the disciplinary hearing, the Independent Chairperson could not sentence them to loss of remission, did nothing but further prisoners' disdain for the Correctional Service's claim that justice now ran behind prison walls.

The clear message of the memorandum from the Correctional Services' lawyer, that the right to counsel could be avoided through the vehicle of the intermediary offence, did not fall on deaf ears. By the end of August nearly every offence which came before the Independent Chairperson at Kent Institution was designated an intermediary one; with the result that prisoners were told that they had no right to counsel. This was the answer they had been given prior to the Federal Court of Appeal decision in Howard, although then based on the Independent Chairperson's misunderstanding of the law. The same response of denying counsel in September 1985 was much more clearly based upon the correctional authorities' intent to limit the application of the law as set out in the Howard case.

The Correctional Service's 1985 interpretation that Howard did not apply to offences where the disciplinary board can only impose dissociation (as opposed to loss of remission), because only remission effected the prisoners' liberty interest under s.7 of the Charter, was not only inconsistent with the realities of the administration of the earned remission scheme, but was also further undermined by the decision of the Supreme Court of Canada in Cardinal and Oswald v. The Queen. That case, decided shortly after Howard, held that confinement in dissociation constituted a deprivation of the relative or residual liberty that a prisoner enjoys in a general population of the prisoner and therefore such confinement affects a s.7 liberty interest.

In 1986 the Federal Court affirmed that the Correctional Service's view that charging a prisoner with the intermediary offence avoided his right to counsel was an improper interpretation of the Howard case and that, as the Federal Court of Appeal had declared, the right to counsel depended upon a consideration of all the circumstances and could not be precluded by classifying the offence as intermediary. In Engen v. Disciplinary Board of Kingston Penitentiary Mr. Justice Denault stated:

I should point out that the fact that the offence with which Mr. Engen is charged is one classified as intermediary does not automatically preclude his right to counsel. It is the actual gravity of the offence which must be considered, not the name attached to it. A contrary conclusion would allow the prison authorities to get around the nuisance of having counsel present by allowing them to classify as intermediary an offence which would previously have been regarded as flagrant. ( (1987) 60 C.R. (3d) 109 at 115).

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