The CCR Regulations contain a further provision which, like the sentencing guidelines, is intended to provide a mechanism for addressing the issue of disparity and providing greater co-ordination among the activities of Independent Chairpersons. Based upon the recommendation of the Correctional Law Review, s. 24 of the CCR Regulations provides for the appointment of "a Senior Independent Chairperson," whose duties are to "train the Independent Chairpersons in the Senior Independent Chairperson's region" and "promote the principle among the Independent Chairpersons in the Senior Independent Chairperson's region that similar sanctions should be imposed for similar disciplinary offences committed in similar circumstances."

Several aspects of the disciplinary process are not dealt with either in the CCRA or the CCR Regulations. First, no mention is made of the role of institutional advisors. This is surprising, given that both my research and the CSC's Evaluation Report found considerable institutional and regional disparity regarding the role of advisors and their influence on Independent Chairpersons. The provisions dealing with advisors are left instead to the Commissioner's Directive on Discipline. Commisisoner's Directive 580 provides that "the institutional head should designate a member of the CSC, at the level of correctional supervisor or higher, to provide continuity and facilitate the disciplinary process. This member shall provide assistance and any details or documents requested by the Chairperson to facilitate the hearing" (C.D.580, January 24, 1997, para. 19). The Commisisoner's Directive also provides that "at the request of the Chairperson, the member designated to assist may, in consultation with the inmate's unit staff or other concerned staff, provide recommendations to the chairperson on the appropriate sanction" (C.D. 580, para. 44).

The second matter left to the Commissioner's Directives are the definitions of "serious" and "minor" charges. Under the new legislation, as under the old, serious charges are heard by the Independent Chairperson and minor charges are dealt with by a staff member; also, more severe sanctions can be imposed following conviction on a serious charge. Commissioner's Directive 580 defines "serious offence" as a situation in which an inmate commits a serious breach of security; exhibits violent behaviour; or commits, or attempts to commit, an act that could generate such behaviour on the part of others or could cause harmful consequences to staff members or inmates. "Minor offence" is defined as a situation in which an inmate "exhibits negative or non-productive behaviour towards institutional rules governing the conduct of inmates" (C.D. 580, para. 8).

The scattering of the provisions governing the disciplinary process among the CCRA, CCR Regulations and Commissioner's Directives leaves much to be desired. Although more is now contained in the CCRA and CCR Regulations, gaining an understanding of the totality of the federal disciplinary process still involves referring to three different documents, when the process is simple enough that it could easily be codified in a single document. Indeed, that was one of the recommendations included in the Canadian Bar Association's commentary on the CCRA when the CCRA was introduced into Parliament.

The issue is not simply one of convenience. The Correctional Law Review in one of its Working Papers, in setting out the contours of a codification of correctional law, addressed the question of what matters where to be placed in legislation and regulations and what should be left to policy directives.

The essential features of a correctional system should be approved by Parliament to ensure as much public input and scrutiny as possible. The correctional system should reflect societal values with respect to the relative importance of protection of the community and restrictions on the liberty of individuals. As well, the public through Parliament should approve the critical aspects of a system which has such a great impact on individual rights. It is therefore our view that, in addition to the establishment of the correctional agencies and authority for their functions, as well as staff powers, new correctional legislation should also contain a statement of philosophy, with specific objectives for each program or activity, the principal features of each such program or activity, and should articulate individual rights in the correctional context and provide for their protection. Regulations would complement and particularise the statute; they would flesh out the details of many of the statutory provisions, and deal with matters which might be expected to change over time....

Commissioners Directives [the policy and procedure guidelines under which the federal correctional system operates at present] are made internally, that is, within the Correctional Service of Canada, with no outside input or scrutiny. This is in sharp contrast to the scrutiny and input required in the case of a statute and to a lesser extent, regulations. As a result of the difference in process, policy directives are much more flexible; they are internally made and can be changed much more readily than either a statute or a regulation. These two characteristics of policy directives, that is, their non-binding and flexible nature, indicate they are most appropriate for internal management matters.

....In developing a legislative framework, matters to be dealt with in the directives as opposed to statute or regulation should be of an operational policy nature involving the day to day activities of employees in carrying out their duties, and should not directly affect inmate rights. (Correctional Law Review, Working Paper No. 2, at 50-3).

This suggested arrangement is both principled and practical, and was one which the Canadian Bar Association endorsed. The problem is that the distribution of the provisions governing discipline in the CCRA, the Regulations and the Commissioners Directives does not follow these principles. A prisoner’s right to counsel is one which quite clearly belongs in the legislation and not the regulations, given that it is a statement of the legal, indeed constitutional, rights of prisoners and is not something "which might be expected to change over time". Even more problematic is the location of the definition of what constitutes a serious and minor offence in the Commissioners Directives. The determination of the category of offence is critical to whether a prisoner has a hearing before the Independent Chairperson, has a right to counsel and is subject to a sanction of segregation.

The identification therefore of what constitute a serious offence is clearly one which affects a prisoner’s rights and is not a matter "of an operational policy nature involving the day to day activities of employees in carrying out their duties". In relation to the role and responsibilities of the institutional advisors, while it could be said that these do relate to the day to day activities of employees, given that the role of the advisors has been identified as a critical issue in my own studies and in the CSC’s evaluation in shaping prisoners’ perceptions of the fairness of the disciplinary process, a strong case can be made that the role of the advisors should have been addressed if not in the Act, at least in the Regulations. It would then be clearly established in law that the role of institutional advisors is to make recommendations on sentence but that it is the Independent Chairperson whose responsibility it is to determine a sentence, having regard to the guidelines set out in the Regulations. This is particularly important since for many prisoners the legitimacy of the disciplinary process has in the past been undermined by the degree of control which some Independent Chairpersons have delegated to the advisors.

Notwithstanding these criticisms, the 1992 changes have infused the disciplinary process with greater legality, have unequivocally recognized a prisoner's right to counsel when faced with a serious charge, have affirmed a prisoner's right to be present throughout all phases of the hearing (except where the prisoner is disruptive or poses a threat to the safety of others) and have introduced, through sentencing guidelines and the establishment of the office of Senior Independent Chairperson, measures to address sentence disparity (To assist the reader, the relevant provisions of the CCRA and the CCR Regulations dealing with the disciplinary process, as well as C.D. 580 are set out in Appendix A ).

The question that presents itself today, as we move into the twenty-first century, is the question with which I began my studies of the Canadian prison almost thirty years ago: does the federal disciplinary process, in practice, operate fairly and in accordance with fundamental principles of justice? The following chapters are directed to providing an answer.

Page 2 of 2