There were some serious flaws in Mr. Csoka's handling of the Clark hearing. First of all, the CCRA, in setting out the disciplinary procedure for both serious and minor offences, clearly preserves the presumption of innocence by providing 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. (s. 43(3))
That Mr. Csoka's operational assumption was a presumption of guilt, not innocence, was exemplified in his opening remarks to Mr. Clark: "Give us your explanation of why you're not guilty." Even though in this case the charging officer was called to give evidence, Mr. Csoka left no doubt about his preference for the officer's evidence over that of the prisoner. As in Mr. Hurst's case, there was also some question as to whether Mr. Clark was charged under the right section of the CCRA. During the hearing, there was no reference made to the written rule Mr. Clark was alleged to have broken, and the proper charge would seem to have been an attempt to wilfully damage property. Third, as with Mr. Hurst, the discussion regarding sentence took place in Mr. Clark's absence. Finally, the sentence imposed, that of two weekends' lock-up to be served, in accordance with the "new policy," in segregation, translated into a sentence of punitive segregation; such a sentence can only be imposed by an Independent Chairperson for conviction of a serious disciplinary offence. The sentence, however administratively convenient, was therefore illegal.
Mr. Longtin, the third prisoner on the docket, faced a charge of being "disrespectful or abusive towards a staff member in a manner that would undermine a staff member's authority," contrary to s. 40(f) of the CCRA. The allegation was that, when told by an officer he was coming onto the range too often during the day, Mr. Longtin responded, "Fuck you, you can't tell me what to do." He pleaded not guilty and said he did not use those words. The charging officer was not called to give evidence. Mr. Longtin was asked to leave the room, and Officer Moran, who had remained in the room after Mr. Clark's hearing, stated, "The charging officer is a pretty straight guy." It was agreed that a fine of $5 was appropriate. Mr. Longtin was brought back into the room, and Mr. Csoka advised him, "We find you guilty. We don't believe your story. The officer has no reason to lie." Mr. Longtin responded, "How do you know that? Maybe he has a thing in for me."
In my 1972 study of the disciplinary process, I had concluded that two dominant features of the warden's court were the presumption of guilt and the presumption that officers do not lie and so their evidence is to be preferred to that of prisoners. Mr. Csoka's comments in Mr. Longtin's case make it clear that these presumptions continued to animate decision-making in minor court.
The fourth man to appear, Mr. Tschritter, faced a charge of "without reasonable excuse, refuses to work or leaves work," contrary to s. 40(p) of the CCRA. Mr. Tschritter pleaded guilty. When asked for an explanation, he said, "I was tired," to which Mr. Csoka responded, "So you took the day off." Mr. Tschritter was then asked to leave the room. Mr. Csoka reviewed Mr. Tschritter's record and noted a previous conviction on the serious charge of possession of brew, for which he had received 30 days' segregation suspended for 90 days. Mr. Csoka expressed the view that conviction for the minor charge would activate the 30 days' segregation. Officer Moran suggested (correctly) that only a serious charge could do that. Mr. Csoka phoned Norm Gerl, Co-ordinator of Correctional Operations and advisor to the Independent Chairperson, to get some clarification of the issue, but Mr. Gerl was not in his office. The prisoner was brought back in and told that his sentence was a $5 fine. He was then asked about his previous suspended sentence. He said it had occurred in 1992. A closer review of the file showed this to be the case, so there was nothing to activate.
The next prisoner was Mr. Robie, who was also charged under s. 40(p). The offence report alleged that he had failed to report for work. Mr. Robie too pleaded guilty. He said that the staffperson who was his boss had recently been on two weeks' holiday, and during that time Mr. Robie got into a routine of sleeping late. After Mr. Robie was asked to leave the room, there was a discussion about him being a "chronic sleeper." Mr. Csoka noted that Mr. Robie had been convicted on a serious charge the previous month and had "30 days over his head." One of the CO-IIs asked, "Should we give him early lock-up?" The response was, "He likes being locked up." It was agreed that he should get a $5 fine, but it was unclear to everyone what to do about the 30 days' suspended sentence. Officer Moran said again that she had never seen a suspended sentence activated for a minor offence. Mr. Csoka phoned Mr. Gerl again, got through this time, and then reported to those present that Mr. Gerl had confirmed the 30 days was automatically activated by conviction in minor court. Officer Moran reacted with "That blows me away." Mr. Robie was then brought back into the room. When he was told he was being given a $5 fine for this offence and that he would also have to serve the 30 days in the hole which had been suspended, he was visibly shaken by the news. As a result of sleeping in -- the seriousness of which justified only a $5 fine -- Mr. Robie would now spend the next 30 days in segregation.
Mr. Jones, the next prisoner on the docket, faced a charge of being disrespectful towards staff. When questioned about having a pass, he was alleged to have become abusive and called the officer a "fucking goof" and a "power-tripper." Mr. Jones asked for a remand so that he could speak to his lawyer. Officer Moran replied that lawyers were not allowed in minor court. Mr. Jones then said, "I asked to have a witness and he's not here." At this point Mr. Csoka, who was reading through the documents, stated, "I see why you want to have this case remanded. You've got 30 days over your head, haven't you?" Mr. Csoka told Mr. Jones that he was going to proceed with the case and asked for his plea. Mr. Jones pleaded not guilty. Mr. Csoka said, "Do you have any explanation?" Mr. Jones said no and was then asked to leave the room. During the brief discussion that followed, it was determined that Mr. Jones was guilty of the charge, that he should be fined $5, and that the 30 days' segregation would be automatically activated. Mr. Jones was brought back into the room and told that he would be going to the hole to serve his 30 days. He looked at Mr. Csoka incredulously. Officer Moran took out his handcuffs and said to Mr. Jones, "Do you want me to put these on you, or will you be going quietly?" Mr. Jones, his voice shaking, said, "You had better put them on me as I don't feel quiet right now." Officer Moran then left to escort Mr. Jones to segregation. Mr. Csoka radioed up to say that Mr. Jones was on his way and suggested there be two staff waiting for him because the prisoner might cause some problems.
When Mr. Jones' hearing is reviewed within the legal framework for disciplinary hearings, it is clear he should have been granted an adjournment. Adjournments are a regular feature of hearings for serious charges, and a prisoner's request for an adjournment at a first appearance to consult with counsel or Prisoners' Legal Services is granted by the Independent Chairperson as a matter of course. Although Officer Moran was correct in stating that the right to be represented by counsel is recognized in the CCR Regulations only for hearings on serious charges, this does not apply to the issue of seeking an adjournment to consult with counsel in order to prepare a proper answer and defence to a disciplinary charge. Mr. Jones' hearing also proceeded in violation of the CCR Regulations and the Commissioner's Directives. A decision was made about his guilt in the absence of evidence presented by the charging officer and without giving Mr. Jones an opportunity to question witnesses, and he was not allowed to make any submission regarding the appropriate sentence.
A vast distance between legal principle and administrative practice was further demonstrated when Mr. Lloyd's case was considered. Mr. Lloyd faced two charges of being abusive and disrespectful to a staff member, contrary to s. 40(f). In the first offence report, the allegation was that he was yelling out his cell to the officer in the bubble and then came up to the bubble and pounded on it, calling the officer an "f-ing cunt." Mr. Lloyd pleaded not guilty and said the guard in the bubble was being an asshole. Mr. Csoka responded, "Do you remember me last week in Segregation Review? You gave us a different explanation there. You said you didn't mean it, you were sorry and you just lost your cool." (After the incident in question, Mr. Lloyd had been taken to segregation; he was there for three days until he appeared before the Segregation Review Board, which recommended that he be released.)
Mr. Lloyd was then asked to leave the room. One of the officers reported that Mr. Lloyd was always abusive to staff and had a real attitude problem. His file showed four previous minor charges; he had received warnings on two of them, a fine of $5 for a contraband tattoo gun, and three nights' lock-up on his last appearance. The recommendation this time around was that he be given a fine of $10. When Mr. Lloyd was brought back into the room and told he was being sentenced to a $10 fine, he responded, "I don't want the fine. I did three days in the hole for this and that should be enough. I've just got back to work and I've got no money. Do you want me to go back doing tattooing? I've been keeping out of that. I just can't take the fine."
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