The Corrections and Conditional Release Act
The Corrections and Conditional Release Act was passed in June 1992. The Act and the related CCR Regulations introduced a number of changes to the prison disciplinary system. The most significant of these was that most of the provisions dealing with the disciplinary process are now set out in the Act and CCR Regulations, thereby having the force of law, rather than being left to the Commissioner's Directives. Another important change was to the list of disciplinary offences: several offences were removed, some were amended, and several others were added. The principal deletion was s. 39(k) of the Penitentiary Service Regulations, which made it an offence to do "any act that is calculated to prejudice the discipline or good order of the institution." In my 1972 study, and again in 1983, I had criticized this offence as offending against the principle of legality: that penal statutes be defined with precision. Furthermore, this was the offence that Chief Justice Thurlow in the Howard case had described as "a notoriously vague and difficult charge for anyone to defend" ( Howard at 665)
The new Act reintroduced the pre-1985 scheme of dividing disciplinary offences into serious and minor, abolishing the intermediary category of offence. The Act introduced for the first time a legal obligation on a staff member to "take all reasonable steps to resolve [a disciplinary] matter informally where possible" (s. 41(1)). S. 43 legally entrenches the presumption of innocence by requiring that "the person conducting the hearing shall not find the inmate guilty unless satisfied beyond a reasonable doubt, based on the evidence presented at the hearing, that the inmate committed the disciplinary offence in question." The CCRA also affirms the right of the prisoner to be present for all phases of the hearing unless he is disruptive or there are reasonable grounds to believe he would jeopardize the safety of any person present. Further important changes were introduced by the Corrections and Conditional Release Regulations (CCR Regulations). S. 31(2) recognizes a prisoner's right to counsel for a serious disciplinary offence.
The service shall ensure that an inmate who is charged with a serious disciplinary offence is given a reasonable opportunity to retain and instruct legal counsel for the hearing, and that the inmate's legal counsel is permitted to participate in the proceedings to the same extent as an inmate.
This provision removed from the Independent Chairpersons the responsibility for determining whether a prisoner required the assistance of counsel to ensure a fair hearing, a determination the CSC's Evaluation Report found had resulted in significant regional differences.
Another important change introduced by the CCR Regulations,
which was responsive to my own criticisms of sentence disparity and to
the recommendations of CSC's Evaluation Report,
is the provision for legally binding guidelines to determine sanctions
for disciplinary offences. S. 34 provides:
Before imposing a sanction described in section 44 of the Act, the person conducting a hearing of a disciplinary offence shall consider
(a) the seriousness of the offence and the degree
of responsibility the inmate bears for its commission;
(b) the least restrictive measure that would be appropriate
in the circumstances;
(c) all relevant aggravating and mitigating circumstances,
including the inmate's behaviour in the penitentiary;
(d) the sanctions that have been imposed on other inmates
for similar disciplinary offences committed in similar circumstances;
(e) the nature and duration of any other sanction described
in section 44 of the Act that has been imposed on the inmate, to ensure
that the combination of the sanctions is not excessive;
(f) any measures taken by the Service in connection
with the offence before the disposition of the disciplinary charge; and
(g) any recommendations respecting the appropriate
sanctions made during the hearing.
The most significant change in the range of sanctions flowed from the abolition of the scheme of earned remission. As I have explained, until the CCRA was passed, a prisoner could earn up to fifteen days a month in remission. If a prisoner earned the maximum remission, he or she would be entitled to release from imprisonment, subject to parole supervision, at the two-thirds point in the sentence, assuming he or she had not been paroled earlier. However, if a prisoner was convicted of a serious disciplinary offence, loss of remission could be imposed by the Independent Chairperson as one of the sanctions. The CCRA abolished the system of earned remission, in part because of the complexities of administering it, and replaced it with the system of statutory release. (This creates a presumptive entitlement for a prisoner to be released at the two-thirds point in his or her sentence, again subject to parole supervision. That presumptive release is subject to a determination by the Parole Board that the prisoner is likely to commit either an offence involving death or serious harm or a serious drug offence prior to the expiry of the sentence. The Board can then order that the prisoner remain in prison for the full duration of the sentence or serve the last third at a community residential facility.) With the abolition of remission, the sanction of forfeiture of remission passed into correctional history.
The CCR Regulations introduce restrictions on the use of other sanctions. Under the CCRA, the maximum period of segregation that can be imposed for a single disciplinary offence is 30 days. S. 40(2) of the CCR Regulations provides that, where a prisoner is ordered to serve a sentence of segregation for one offence while subject to a sanction of segregation for another serious offence, the total period of segregation shall not exceed 45 days. S. 40(3) provides that a prisoner serving a period of segregation as a sanction for a disciplinary offence be accorded the same conditions of confinement as would be accorded a prisoner in administrative segregation. Under s. 37, the maximum fine that may be ordered is $25 for a minor offence and $50 for a serious one, and s. 38 requires that no fine shall be imposed unless the prisoner's financial means have been considered. Section 36 places the ceiling on the sanction of restitution at $50 for a minor offence and $500 for a serious offence. Section 41 authorizes the imposition of a suspended sentence and limits the period of suspension for a minor offence to 21 days and to 90 days for a serious offence.
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