Evaluations of the Disciplinary Process
The Correctional Investigator in his 1989-90 report referred to the significant number of complaints concerning the decisions of Independent Chairpersons that his office had traditionally received. He observed that the only avenue of redress available for decisions of Independent Chairpersons was an appeal to the Federal Court of Canada. Given the time involved in bringing a case before the Federal Court he felt there was a need for an interim avenue of redress to ensure that, when necessary, corrective action could be taken in a timely fashion. The Correctional Investigator referred specifically to the recommendation that had been made by the Correctional Law Review in its Working Paper on Correctional Authority and Inmate Rights on 1987 which had recommended the appointment of a Regional Chief Independent Chairperson whose function would be to hear appeals on matters of process and substance for both conviction and sentence, and monitor and promote consistency in dispositions. (Annual Report of the Correctional Investigator, 1989-90 at 36)
In 1991 a comprehensive evaluation of the Independent Chairperson's program was undertaken by C.S.C. The scope of the evaluation can be readily seen in the following passage taken from the executive summary.
The methodological approach that was used permitted the researchers to gather a lot of informatiion from a great number of people who are involved in the process (outside Chairpersons, directors and/or sub-directors, assessors, employees, inmates, legal counsellors). Every institution which has an outside Chairperson was invited to fill out a questionnaire; in all, there was a total of 399 respondents from 28 institutions across the country. Eighteen institutions in the five different regions were also visited by the researchers. (Correctional Service of Canada, Independent Chairperson Program: Evaluation Report by Benoît Boulerice and Michel Prosseau [Ottawa: Correctional Service of Canada, 1992], May 1992, [hereinafter referred to as the CSC's Evaluation Report ] at vii.)
Based on this national survey, the Evaluation Team came to these conclusions and recommendations:
IS THE CURRENT PROCESS FAIR?
In order to determine whether the present system is fair, we had to determine whether the decision taken by the ICPs are impartial, whether the process is based on the Rule of Law, whether the presumption of innocence is adhered to and the notion of reasonable doubt is observed, and, finally, when an inmate is convicted, whether the penalty is proportionate to the offence.
We showed that the respondents as a whole were in agreement that the present process seemed to provide guarantees of impartiality and fairness. Resorting to a person outside the C.S.C. to chair the disciplinary court dealing with serious and intermediate offences is a guarantee of impartiality. However, it is important to mention that it is much less clear to the inmates and their legal counsel that the legal rules are being complied with. In their view, the present disciplinary rules are still insufficient. In particular, both groups say, observance of the right to representation by counsel is inconsistent in all regions except Ontario.
DOES THE PROCESS APPEAR TO BE FAIR?
The Independent Chairperson, who by his role symbolises justice, so to speak, must make three types of decisions during a disciplinary court proceeding: application of the rules, judgment and sentence. Since he enjoys some discretion, the exercise of his role is a function of his own knowledge and of how he conceives his role. These decisions are particularly important not only for the inmates involved but also for the employees who have reported an offence and may be called on to testify. While a number of inmates complain that the rules are not sufficiently implemented and that they favour the C.S.C, a number of employees think that the disciplinary court has become too legalistic and operates in favour of the inmates. It will come as no surprise, then, that ICP decisions can sometimes appear appropriate to some and inappropriate to others.
Furthermore, we noted that the participants thought the assessors' role was as important as that of the Independent Chairpersons. Some even attribute great influence to the assessors, particularly in sentencing. One of the most controversial aspects of the assessor's role occurs, of course, when he is consulted by the ICP on the type of sanction that should be imposed. The fact that there are no precise expectations concerning the way in which the assessor's role should be performed, and that different people are asked to perform this function in some institutions, results in differing approaches. The assessor is a C.S.C. employee, and everything he does during the proceedings of the disciplinary court remains subject to differing interpretations, frequently influencing perceptions of the court. Some attention should therefore be paid to the selection of these assessors, their role should be spelled out, and they should be given information to guide them in the performance of their duties.
We believe that the appearance of justice might be reinforced by, among other things, adhering to and explaining certain basic principles. For example, each decision should be accompanied by reasons, using accessible terminology.
By proceeding in this way, the disciplinary court would ensure that the image it projects is one of adherence to the established rules and procedures, i.e., the principles of justice, and contribute to a better understanding of those principles.
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