Mr. Routley, during his last exchange with Mr. Wagner, clearly intended to reassure the prisoner that the Independent Chairperson's findings regarding the nature of the "fight," and the mitigating circumstances which in Mr. Routley's view placed it at the low end of the scale of seriousness, would be readily understood by the Parole Board since the sentence did not involve segregation. However, Mr. Routley's genuine expectation that this would be the case was not reflected in Matsqui's paper trail. The documentation on Mr. Wagner's disciplinary file would reflect only the fact that he was found guilty of a charge of "fights with, assaults or threatens to assault another person" and that he had received a suspended sentence of 30 days' segregation together with a fine of $25. None of Mr. Routley's findings of fact would be recorded on the disciplinary charge sheet, and the only individuals who would have knowledge of the hearing were those present -- which did not include either Mr. Wagner's case management officer or the correctional officer specifically assigned to his case. The only way those officers could find out what had actually happened at the hearing would be to listen to the tape of the proceedings. This is a time-consuming process, and in my experience at Matsqui no staff member ever requested the tape of a disciplinary hearing. The only transcripts produced were those generated by lawyers in the very rare cases where judicial review was sought of the Independent Chairperson's decision. (The other exception, of course, was the transcripts I prepared for the purposes of my research.)

A case management or correctional officer required to prepare a progress or assessment report on a prisoner convicted of a disciplinary offence has recourse to the disciplinary face sheet prepared for each hearing. This contains a brief description of the offence, the subsection of the CCRA under which the charge was brought, whether the offence was designated as serious or minor, the finding of guilt or acquittal, and, if the finding is guilty, the sanction. Attached to the face sheet are reports prepared by the charging or witnessing officers. These reports are analogous to police or witness statements prepared during the course of a police investigation into a criminal offence outside of prison. In most cases, officers who give evidence at a disciplinary hearing give an approximation of what they have written in the offence reports. However, even where the Independent Chairperson finds a prisoner guilty of the offence as charged, the Chairperson does not necessarily accept everything in the offence reports or agree with the charging or witnessing officers' evaluation of the seriousness of the offence.

Mr. Wagner's is a case in point. Officer Laker's report described the incident as being more serious than did the evidence given by Officer Tate, the primary officer involved. Officer Laker was not called upon to give evidence, and Mr. Routley based his decision on the evidence of Officer Tate, with which Mr. Wagner basically agreed. This was the factual matrix Mr. Routley characterized as a "push and shove" incident rather than an assault on an officer. However, prior to the disciplinary hearing, Mr. Wagner's case management officer had prepared a progress summary in support of a recommendation that Mr. Wagner be transferred from Matsqui to Kent, on the grounds that his behaviour at Matsqui merited a maximum-security classification. The progress summary referred to five minor disciplinary convictions, all of which involved Mr. Wagner's activities in tattooing other prisoners and his failure to be at his cell for lock-up. However, the summary placed the greatest reliance on the serious charge of assaulting Officer Tate, however. The alleged offence is described in these terms:

The purpose of this report is to address Mr. Wagner's involuntary transfer to Kent institution as a result of his recent assault on a staff member . . .

His current situation has arisen as a result of his being caught in [another prisoner's] cell by security staff while doing a tattoo on another inmate. His reaction was at first co-operative but turned sour when he was ordered to give up his tattooing ink. He began swearing and drawing more attention to his plight on the tier, eventually giving up the ink when told he would be placed in S.C.U. The report dated 93/07/07 indicates Mr. Wagner became more aggressive, threatening and intimidating. Upon returning to his cell, Mr. Wagner grabbed the officer who was locking him in his cell by the arm with both hands. The officer was drawn into the cell and a pushing match ensued in the cell until the officer was able to exit. Mr. Wagner was immediately segregated as a result. Although there were no weapons used or blood drawn, there is a deliberate attempt on Mr. Wagner's part to fight with the officer . . .

Mr. Wagner's criminal history has no violence. However, he has displayed increasing willingness to use violence within the institution against staff. (Progress Summary, Matsqui Institution, July 13, 1993)

Since this progress summary was prepared prior to the disciplinary hearing, it was based on the incident reports, including that of Officer Laker. The characterization of the incident as "an assault" on an officer was specifically negated by Mr. Routley's findings. Furthermore, the statement in the progress summary that there was "a deliberate attempt . . . to fight with the officer" is contrary to the evidence given by Officer Tate. Nonetheless, a copy of the progress summary would be provided to the Parole Board as a matter of course, and any attempt by Mr. Wagner at a parole hearing to explain the circumstances of the incident as a "push and shove" would likely be viewed by Board members as rationalization or minimization of the seriousness of the incident. Mr. Wagner would not have the benefit of a transcript of the disciplinary hearing to demonstrate that his characterization accorded with that of the Independent Chairperson, and the expectation expressed by Mr. Routley, that the Parole Board would realize the offence was not serious from the fact that Mr. Wagner did not get segregation time, would not be borne out by the correctional reality.

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