Mr. Gerl clearly was not persuaded. For him, evidence given by Mr. Gordon would always be suspect. Mr. Walters, for his part, tested the weight of Mr. Gordonís evidence against other evidence to determine its credibility. The differences between the two approaches can be characterized as assuming guilt (or disbelieving evidence) based on reputation, as opposed to finding guilt only on the basis of credible evidence proved beyond a reasonable doubt.
In addressing the Hill case, Mr. Walters said that while Mr. Gerl was right that the elements of legal possession were knowledge, consent, and control, he was not prepared to find these elements proven simply because an item was found in one prisonerís cell. As he understood the law, something more had to be shown. In particular, there had to be knowledge by Mr. Hill that he knew the substance was there and that it was a drug. He also had to be satisfied that Mr. Hill had control, and this could not necessarily be assumed if another prisoner had brought the substance into his cell. Mr. Gerl reiterated that it would be impossible to operate the institution if prisoners were not responsible for things found in their cells or brought into them when they were present. If Mr. Hill had wanted to avoid being charged, he should have told Mr. Campbell to take the drug out of his cell.
I suggested that there were two different realities operating here: the institutional reality, under which Mr. Gerl operated, and the legal reality, under which Mr. Walters was required to operate. The institutional reality was reflected in the customary rule that a prisoner is responsible for things in his cell. However, in terms of the legal reality of the elements of possession necessary to found a charge, the institutional reality did not automatically translate into proof of possession. While in many circumstances it would be permissible to infer that a prisoner had knowledge, consent, and control of things in his cell and therefore was legally in possession of them, this was not an inference that could always be drawn. In other words, there could be no irrebuttable presumption of possession simply because an item was found in a prisonerís cell.
At this point Warden Brock and Deputy Warden Wiebe joined the discussion. The warden talked about the importance of maintaining an institutional strategy to clean up the drug scene. He portrayed the disciplinary process as a pivotal part of this, and suggested that if staff lost confidence in the disciplinary process and stopped laying charges for possession of contraband or taking an intoxicant, this would undermine his goal of stopping the flow of drugs into Matsqui and thus of avoiding the violence and loss of life to which drug use ultimately led. If there were too many acquittals under circumstances the staff could not understand or respect, then the disciplinary process would be undermining, not contributing to, public policy inside the institution. Warden Brock suggested that prison discipline, as part of administrative decision-making, was not the same as criminal law, although some criminal law principles were applicable. It was crucial that the disciplinary process be sensitive to the special situations faced in an institution. Mr. Walters made a pointed response to the wardenís suggestion that the principles of administrative law be tailored to the needs of the prison by stating, "Intellectually, I canít tailor my understanding of reasonable doubt to the needs of my customers."
When I discussed this "time out" with Mr. Walters at the end of the day, he referred to it as "a visit to the principalís room", clearly conveying his perception that he was being taken to task for how he was running the disciplinary court. Mr. Waltersí "visit" was not unprecedented in Matsquiís history. In 1989, two years after Mr. Routley had taken over the position of Independent Chairperson, he was invited to meet with Warden McGregor for a discussion about the conduct of disciplinary hearings. As a result of that "discussion," Mr. Routley received the following letter from the warden:
I am disappointed, to say the least, that our conversation of three weeks ago with reference to your approach to the role of Independent Chairperson has had little impact. You will recall in my capacity at Regional Headquarters that I had serious concerns about your overly legalistic approach to what is an administrative hearing. In my view this has now gone too far and the simple fact is that you are now undermining the authority of my staff.
The complaints coming to me range from the
poor treatment of the court clerks, berating the staff in front of inmates,
to your unrealistic requirements for evidence on contraband. Numerous
examples have been brought to me by the Advisors and by staff who have
been subject to this treatment in court. I find this unacceptable and
feel that we must review your approach again. My concerns are serious
enough that I have asked for and received a substitute Independent Chairperson
for the next two weeks so that we have time to try and resolve these problems.
I must tell you, Keith, that if we cannot reach a
compromise, I will have no alternative but to ask the Deputy Commissioner
to seek approval for a replacement. I will arrange for us all to sit down
with the relevant staff so that you can get detailed and accurate feedback
again about our concerns. I look forward to hearing from you. (Letter
from Doug McGregor to Keith Routley, matsqui Institution, September 5,
Warden McGregorís letter evoked a strong response from Mr. Routley.
The letter takes me completely
by surprise, the contents of which strike right to the root of the mandated
legal independence of the Chairperson.
My notes of the "conversation of three weeks ago"
indicated that it was a meeting in your office prior to the commencement
of the regular Wednesday session, and that it lasted for fifty-five minutes.
You indicated at the outset that it was for the purpose of making known
to me your unhappiness with my decisions, notably the one involving inmate
Bates. No mention was made by you at that time of any shortcoming in my
personal behaviour in the discharge of my duties. I have no knowledge
of any "poor treatment of the court clerks," or "berating the staff in
front of inmates," at any time during the preceding two and one-half years.
You will recall that at the meeting you refer to I specifically invited
you to attend sessions of the Discipline Court to learn first-hand the
facts. I am confident that had you taken up that invitation, a more considered
response to staff complaints would be apparent to you.
In regard to your first paragraph, I have no idea
what you mean when you talk about "serious concerns" or "overly legalistic"
or "administrative hearings" or "authority of my staff." Perhaps when
you get the facts straight on a particular case-in-point, we might discuss
this to some benefit. In the absence of this, or meetings with advance
agenda, I fear little constructive interchange can take place.
As a result of the foregoing, I must respectfully
resist your asserted authority to unilaterally substitute my person with
that of another Independent Chairperson of your preference. I say this
with the greatest reluctance, but I sincerely believe that your chosen
course of action will give rise to great future difficulty in both of
our tasks. For you, it will place you under constant pressure to manipulate
the operation of the Institution Discipline Court in the future. For me,
it will permanently compromise my ability to function as an actual and
perceived independent adjudicator. Further, I believe it undermines the
role of all Independent Chairpersons in Canada, and is contrary to the
thrust of the legislation, if not unlawful.
As a result of the foregoing I can confirm my intention
to attend to my duties as Independent Chairperson on this and further
Wednesday mornings. (Letter from Keith Routley to Doug McGregor, Matsqui
Institution, September 11, 1989)
The discussion five years later between Warden Brock and Mr. Walters was much more diplomatic, as befits Roger Brockís style of management, but it still conveyed the same message of measured disapproval of the Independent Chairpersonís conduct of disciplinary court.
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