A flawed Compass: a human Rights Analysis of the Roadmap to Strengthening Public Safety
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- Adequacy of the Inmate Disciplinary Process
ConclusionCSC's uncritical endorsement of the Panel’s recommendations on stepping up the war against drugs coupled with the allocation of new money to introduce more ionscan equipment, more drug dogs and more security intelligence officers, has had the effect of encouraging correctional managers and visit review boards to be more aggressive in this ongoing war, minimizing the mounting evidence of the fallibility of the technology and giving short shrift to visitors who plaintively protest their innocence of any involvement or association with drugs. We have been told of visitors who with great reluctance have decided to limit or even terminate their visiting of loved ones, for fear both of the embarrassment and demeaning consequences of false positive hits and also that this will build a record which will inhibit their loved ones’ transfers to lower security or grant of parole. We have seen no evidence to support the case that “a more rigorous approach to drug interdiction” would have any more success within prisons than the array of increased enforcement and tougher sentencing has had on stemming the flow of drugs coming into Canadian cities and communities. In prison, as on the street, prevention and treatment are more hopeful and productive strategies to address the intractable problems of drug use. Harm reduction strategies offer the best hope to modify the deadly transfer of HIV and Hep C within the prisons and, after release, in the community. CSC’s current Drug Strategy rightly emphasises the elements of prevention and treatment along with enforcement. Shifting resources by addressing only “more stringent measures”, as advocated by the Panel, carries unconsidered heavy costs for both a crucial element necessary for a humane environment and for an effective drug strategy. Unfairly inhibiting the rights and ability of prisoners, their families and their support networks to maintain the bonds of family and community necessary for their reintegration into society, has no legitimate place in a roadmap to a just, peaceful and safe society.
No other section of the Roadmap raises suspicion about the Panel’s bias towards pleasing a political constituency so much as the section on prison discipline. When one recognizes that the review was the fulfilment of the political promises made by the current government to prison guards187, one might expect that their long-standing criticism of the disciplinary process would be taken seriously. In fact, the uncorroborated claims contained in a brief from the Union of Canadian Correctional Officers (UCCO) drove the entire content of this section of the report - to the exclusion of all other sources both within and outside of CSC. As a result, this is another area where the Roadmap reveals its one dimensional approach, one in which primacy is given to security concerns with no consideration to the justice goals of the process. The Panel summarised what it learnt from UCCO’s submission: The Panel heard from UCCO-SACC-CSN representatives that they believe that the disciplinary process is not working as it should. They specifically commented on the situation where “a non-compliant offender sentenced to segregation serves the penalty in a regular cell, with all the property and privileges enjoyed before conviction in Disciplinary Court.”188 UCCO-SAAC-CSN also provided the Panel with an analysis of what they termed “the Discipline Regime” and as an example, gave an analysis of offence reports at Donnacona Penitentiary between January 1 and October 19, 2006…. The union noted issues around the timelines of the application of the disciplinary process. Section 36 of Commissioner’s Directive 580 stipulates that the initial hearing of major and minor charges of a disciplinary offence shall normally take place within two weeks after the charge is laid. However, the statistics reveal that only 20.5% of the hearings are held within these time limits. Out of all offence reports filed, only 41.2%, led to sanctions of some sort. Hence, 58.8% of the major reports were rejected for various reasons, including administrative reasons such as timeliness. The union also noted that many rejected offence reports are not passed on to the offender’s future parole officers and thus are not considered during National Parole Board hearings. In addition, two out of five reports are not recorded in the Offender Management System (OMS). The union’s study revealed that 135 reports with guilty verdicts were not officially recorded in OMS, which had a significant impact on case management, given that parole officers depend heavily on the OMS when evaluating cases to be presented to the Parole Board. The Panel was not able to confirm the accuracy of the union’s allegations with CSC management but, the essence of the union’s submission has led the Panel to conclude that in order to reduce levels of violence by offenders within the walls of the penitentiary system, there must be significant and meaningful consequences for abusive or assaultive behaviour. While the Panel heard from frontline correctional officers that some verbal abuse is to be expected from offenders given their profile, staff should not be feel they have to accept this behaviour. There should be appropriate and meaningful consequences for offenders’ behaviour that is not deemed acceptable. Staff has repeatedly told the Panel that current sanctions are inadequate, and are handed down too late to have any deterrent effect on the offender.189 POLICY OBJECTIVE To contribute to public safety and an orderly and safe correctional environment through a fair and transparent disciplinary process by:
8. Inmate discipline shall:
Without any reference to either this policy objective and principles, or the law on which it is based, the Panel focuses solely on the issues of administrative efficiency and, to make matters worse, only from the perspective of the guards. This is made clear from the fact that the only submission that the Panel mentions in this part of its report is that from UCCO. The time is long past when correctional officials were able to impose disciplinary sanctions without concern for complying with the legal obligation to act fairly. The presumption of innocence, the right to know the charge and evidence, and the right to be heard before an impartial judge are fundamental to our democracy and system of justice. For decades now it has been accepted, at least in principle if not always in practice, that the rule of law must apply within the prison in the same way that it must apply in the community if the justice system is to command respect. The Commissioners Directives reflect those principles and legal obligation. Only by ignoring the law and policy objectives and principles of the Commissioner’s Directives is the Panel able to rely in a singularly uncritical manner on the UCCO perspective alone. To make matters worse, we have reviewed the UCCO submission and found that the study it cites is woefully inadequate as a basis for any conclusions regarding the disciplinary system. Yet, the Panel cites the study uncritically while either disregarding or being unaware of the extensive scholarly literature that would provide a more balanced assessment of the adequacy of the disciplinary process and reform measures that strive to maintain the balance between the justice and security goals of the process. A few examples will illustrate this point. The Panel report states that “UCCO provided the Panel with an analysis of what they termed “the Discipline Regime” and as an example, gave an analysis of offence reports at Donnacona Penitentiary between January 1 and October 19, 2006”. The UCCO brief in presenting the Panel with its analysis stated "we believe that the results of an in-depth study recently undertaken by the Union into the discipline regime at maximum security Donnacona Institution are reasonably representative of how discipline is handled within CSC institutions across Canada. An analysis of 3648 major offense reports between January 1 2006 and October 19, 2006 provides a statistical portrait of how the discipline system in this institution is managed”191. The Union provides no support for its statement that Donnacona is “reasonably representative” of how discipline is handled in other CSC institutions. In fact there are several compelling reasons to believe Donnacona is not representative. The 3648 serious offense reports in a 9 1/2 month period, on a per capita basis, are the highest of any institution in the country. Donnacona has a rated population of around 355 and in 2006 an average population of 289.192 The 3468 figure therefore represents a charge rate of over one serious (major) charge for every prisoner every month. We are not aware of any other institution that matches this. To give a comparative reference, in the fiscal year 2006-7 (a 12 month period) there were only 1,161 serious charges (a third of Donnacona) laid for the entire Pacific region, comprising 10 institutions with a prisoner population of 2,020, a population 7 times that of Donnacona!193 Donnacona therefore had a serious charge rate in 2006 that, per prisoner, was 21 times (2,100%) higher than the Pacific region.194. Further, and distancing Donnacona even more from other institutions, the UCCO brief tells us that “in a context of budget cutbacks local management decided to close the institution’s segregation unit. This decision had a major impact on how disciplinary actions are handled.”195 The Panel, citing the Donnacona study, states “41.2% of the offence reports resulted in sanctions after being filed, while 58.8% of the reports were dismissed for various reasons (not guilty, untimely, stay of proceedings, and so on).” The inference is that an outcome in which less than half of the charges result in a guilty plea or verdict demonstrates that something is seriously wrong with the system. Indeed it is clear from the UUCO brief itself that in the Union’s view their concern is not just that less than half of the offense reports resulted in a guilty plea or verdict but that, even worse, only 30% of the offence reports gave rise to a sanction of segregation and that 9 out of 10 sanctions involved a suspended sentence or a fine. In other words, in UCCO’s view any result less than a sentence of segregation demonstrates a flaw in the disciplinary process. It is not the disciplinary process but UCCO’s line of thinking that is flawed here. The CCRA Regulations set out legally binding considerations to be taken into account by the independent chairperson in imposing a sanction following conviction of a serious disciplinary offence. They are
A sanction of segregation is the most serious punishment in the penitentiary, the equivalent of being sent to “a prison within the prison” as the Supreme Court of Canada has characterized it.197 Consistent with the sentencing principle of proportionality, it is therefore the appropriate punishment for only the most serious offenses or those offenders who have repeatedly committed offenses. To view segregation as the preferred punishment for all or even a majority of serious disciplinary offenses, and see any lesser outcome such as suspended sentences or fines as a failure of the system, as UCCO apparently does, represents a serious misunderstanding and misinterpretation of correctional law and policy. Not only does UCCO’s argument misinterpret correctional law and policy but it would also amount to an administrative and resource nightmare. In most maximum and medium security institutions the disciplinary court for serious charges sits either once a week or every other week. If every one of the 3648 offence report that was designated serious at Donnacona in the first 9 1/2 months of 2006 had been heard in disciplinary court it would make for a weekly court docket of 91 cases. The Panel also cites uncritically UCCO’s complaints about the timeliness of disciplinary hearings: “Section 36 of Commissioner’s Directive 580 stipulates that the initial hearing of major and minor charges of a disciplinary offence shall normally take place within two weeks after the charge is laid. However, the statistics reveal that only 20.5% of the hearings are held within these time limits.” The correctional reality underlying this statistic requires much more elaboration than this simplistic recitation. As other research has demonstrated, given the procedural protections that are built into the disciplinary regime to ensure a fair hearing, it is virtually impossible to have a hearing within two weeks unless the prisoner is prepared to plead guilty at their first appearance.198 If a plea of not guilty is entered, a hearing date has to be scheduled to ensure that any correctional officers who are required to attend as witnesses are available. In many cases the hearing date is set to a date that fits with the officers’ schedules, in order to avoid unnecessary overtime. In other cases, adjournments are granted to enable the prisoner to exercise his legal right to consult with counsel and in some cases be represented at the hearing by counsel. Such adjournments are essential for the conduct of a fair hearing and ensure compliance with the common law duty to act fairly and section 7 of the Charter of Rights and Freedoms. In all such cases where the expectation of the CD - that hearings normally take place within two weeks after the charge is laid - conflicts with the legal requirements for a fair hearing, those requirements rightfully take precedence. The Panel also uncritically cites this statement from UCCO’s brief: “The union also noted that many rejected offence reports are not passed on to the offender’s future parole officers and thus are not considered during National Parole Board hearings.” UCCO’s statement seems to reject the application of the principle of presumed innocence. Even when a charge fails and the offence report is rejected UCCO suggests that the Parole Board, which wields the greatest power over the liberty of prisoners, should be routinely and negatively influenced by unsubstantiated accusations. Does UCCO really assume that the facts and allegations in every offense report written by one of its members are so reliable and unchallengeable that its contents should be considered by the National Parole Board? Does this include offense reports where an offender has been found not guilty by the independent chairperson? In independent research of the discipline process over many years and at different institutions, it has been shown that the allegations in correctional officers’ offense reports, no more than what is alleged in police officers’ reports, cannot be taken as demonstrating the presumptive guilt of an offender. If an offender has been found not guilty by an independent chairperson of allegations contained in a correctional officer’s offense report, on what fair correctional basis does UCCO or the Panel suggest the National Parole Board should consider those same allegations in assessing that offender’s risk to the community?199 The Panel makes only one recommendation relating to the disciplinary process:
The sole source of this recommendation is the voiced concerns of UCCO members. Yet there was available to the Panel a body of independent scholarly research of the disciplinary process in Canadian penitentiaries that extends over the last 30 years.201 This research traces the evolution from the old warden's court regime of the 1970s through to the introduction in the 1980s of independent chairpersons to adjudicate serious offenses. Using a methodology based upon observation of actual cases, interviews with correctional staff, correctional managers, independent chairpersons and prisoners, this provides a balanced and measured assessment of the strengths and weaknesses of the process and a series of recommendations to improve the process to make it both fairer and more efficient.202 This research is readily available both in hard copy and online and indeed there is a link to the research on CSC's own website. That the Panel either did not discover this research or chose to disregard it severely compromises the validity of its one recommendation in terms of a comprehensive roadmap to reform. On the merits of the Panel’s specific recommendation the scholarly research provides no evidence that independent chairpersons do not already “align sanctions with the severity of assaults and threatening behaviour” in accordance with the CCRA regulations that requires sanctions to reflect “the seriousness of the offence and the degree of responsibility the inmate bears for its commission”.203 But as the Regulations also require, other considerations come into play, including “all relevant aggravating and mitigating circumstances, including the inmate's behaviour in the penitentiary,”204 and “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”.205 While UCCO is perfectly entitled to make their case and to have it considered, we think the Panel had an obligation to test the claims made by UCCO before reaching any conclusions or making any recommendations. The admission that they were “not able to confirm the accuracy of the Union’s allegations with CSC management” demands further explanation. Was CSC management unable to confirm the accuracy because its own data contradicted the UCCO claims or are we to understand that management was unable to provide any data on disciplinary hearings – at Donnacona or elsewhere? This would seem highly unlikely given the ease with which we were able to obtain such data from the Pacific regional headquarters. Was CSC unable to comment on the degree to which Donnacona is “representative” of other prisons across Canada? Again this is difficult to fathom given our analysis, which based on CSC’s own data, easily demonstrates how unrepresentive it is. If CSC had not conducted any reviews or assessments of the disciplinary process then the Panel might have rightfully been very critical of CSC’s record keeping - but no such claim was made. In fact CSC has conducted periodic evaluations of the disciplinary process and had available to it the carefully researched work of independent reviewers. It is a disturbing reflection of the Panel’s limited and myopic understanding of existing correctional law and policy, and the goal of achieving the necessary balance involved in contributing “to public safety and an orderly and safe correctional environment through a fair and transparent disciplinary process,” that its commentary and recommendation would jeopardize that balance.
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