PLS on BC Corrections: Unfair Disciplinary Process
On Thursday, January 16, 2014, Prisoners’ Legal Services participated in a roundtable discussion regarding the safety of staff, prisoners and the community in BC, hosted by MLA Thrones, the Parliamentary Secretary to the Minister of Justice and Attorney General for BC Corrections.Our letter to Mr. Throness outlines the issues that Prisoners’ Legal Services has identified in relation to BC Corrections, including our recommendations for improving safety.
This post is the second of four excerpts from our letter to Mr. Throness, on the unfair disciplinary process in BC prisons.
2. The Disciplinary Hearing Process
(a) Legislation and Policy
The Correction Act Regulation allows disciplinary hearings to be presided over by a staff person appointed by the person in charge, who is not independent of the institution laying the charge.
The standard of proof to be applied at disciplinary hearings is not identified in legislation. The standard applied by BC Corrections is the civil standard of “balance of probabilities”. A balance of probabilities standard of proof requires a finding of guilt if the decision maker believes that on balance, the accused was more likely than not to have committed the offence. This is a less onerous standard of proof than the criminal “beyond a reasonable doubt” standard that is applied in criminal proceedings.
The possible penalties available for a breach of an institutional rule include up to 30 days of segregation for one breach or up to 45 days for more than one breach, and loss of earned remission of up to 60 days. Both represent a deprivation of liberty under s. 7 of the Charter.
(b) Case law Review and Review of Other Jurisdictions
The BC disciplinary system is pre-Charter in both design and application. Section 7 of the Charter is violated when a prisoner is punished with a loss of liberty, such as segregation or loss of earned remission, and a breach of procedural fairness has occurred. Section 7 of the Charter reads:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
It is well established in law that the requirements of independence and impartiality are integral components of the principles of fundamental justice for the purposes of s. 7 of the Charter (Ruffo v. Conseil de la Magistrature,  5 S.C.R. 267 at ¶ 38).
A standard of proof of “beyond a reasonable doubt” is required when the government prosecutes an individual and the liberty of the individual is at stake (F.H. v. McDougal,  3 S.C.R. 41 at ¶ 42). The “beyond a reasonable doubt” standard of proof is “inextricably linked to the presumption of innocence” (R. v. Lifchus,  3 S.C.R. 320 at ¶ 13). The presumption of innocence is integral to the protection of life, liberty and security of the person guaranteed by s. 7 of the Charter (R. v. Oakes,  1 S.C.R. 103, at ¶ 29).
Federal prisoners in Canada are afforded the right to an independent adjudicator of institutional disciplinary charges.
The standard of proof applied to federal disciplinary hearings is the more onerous criminal standard of “beyond a reasonable doubt”.
A constitutional challenge to the lack of independent adjudicators in the Alberta prison disciplinary hearings was brought successfully in Currie v. Alberta (Edmonton Remand Centre) 2006 ABQB 858 (“Currie”). The Alberta Court of Queen’s Bench found that the disciplinary boards failed to meet the requirements of independence under s. 7 of the Charter (Currie, ¶ 168).
The Alberta Court of Queen’s Bench identifies the following indices of a reasonable apprehension of bias in prison disciplinary hearings:
(i) Witnessing officers may be superior or equal in rank to the staff person presiding over the hearing. This would put the adjudicator in the position of having to decide between a superior or equally ranking staff person’s version of events and the evidence of the accused prisoner.
(ii) It is possible for a charging officer to be superior to the adjudicator of the hearing.
(iii) An informed and objective person would be concerned that staff who lay or approve charges would pressure colleagues adjudicating the hearings to uphold the charges.
(iv) Because adjudicators are senior staff, they often come to hearings with previous knowledge of the incident and the alleged offender.
(v) Institutional witnesses testified that it was important for staff morale that staff members are seen as supporting their fellow staff members.
(vi) There was evidence of actual bias against prisoners – where there is an issue of credibility between staff and prisoners, decision makers said they would support the evidence of staff over prisoners before hearing the evidence. (Currie, ¶ 175-182.)
All of these indices of a reasonable apprehension of bias also exist under the disciplinary hearing scheme in BC.
The Alberta Court of Queen’s Bench considers whether appeal to an ombudsman, such as the Investigation and Standards Office of the Ministry of Justice in BC, would solve the problem of lack of independence at the hearing level, and determined that it would not. The Court finds that such a right of appeal shares the same limitations as a remedy through the courts by way of judicial review – by the time an appeal is heard, punishment has already been carried out (Currie, ¶ 185).
The Court further concludes that while training board members would improve procedural fairness, it “cannot remove the inevitable bias in favour of the evidence of correctional officers” (Currie, ¶ 197).
The Court concludes:
There is such a clear conflict between the duty of staff members of a disciplinary board in Alberta’s correctional centres to maintain discipline and staff morale and the right of the prisoner to have his charges dealt with before a tribunal with a sufficient degree of independence and impartiality, that both the perception of lack of independence and bias and the fact (as proved in evidence) that in a substantial number of cases (almost all cases where there is a conflict between the evidence of correctional officers and that of inmates) there is a reasonable apprehension of bias. (Currie, ¶ 196.)
The Court declares the impugned legislation unconstitutional and suspends its declaration of invalidity for one year to allow Alberta to implement a scheme in compliance with s. 7 of the Charter. Alberta did not appeal the decision and has since amended its legislation to be in compliance with the Court’s judgment.
(c) Observations of Prisoners’ Legal Services
Although the current BC Corrections disciplinary hearing system provides a right of appeal to the Investigation and Standards Office, in most cases, the prisoner will have served his or her time in segregation by the time the appeal is decided. A successful appeal is a hollow victory for someone who has already served the punishment of segregation.
The current scheme results in many prisoners being subjected to segregation only to be found not guilty after the fact. This experience of procedural unfairness could be avoided in most cases by implementing independent adjudication of disciplinary hearings.
Prisoners’ Legal Services obtained 436 successful appeal decisions from the Investigation and Standards Office from 2002 to 2008 through the Freedom of Information and Protection of Privacy Act. According to the Ministry of Public Safety, these represent all of the successful prisoner appeal decisions in that time period. A review of these decisions reveals that the current disciplinary hearing process is rife with procedural unfairness and that a reasonable apprehension of bias is found in a significant number of cases.
Our research reveals that between 2005 and 2008, approximately 52% of appealed hearings were appealed successfully to the Investigation and Standards Office.
Of the 436 successful appeals reviewed:
- there were 104 findings of a breach of the right to an impartial adjudicator or a hearing free from a reasonable apprehension of bias;
- in 79 cases there was insufficient evidence for a finding of guilt on a balance of probabilities;
- in 54 cases, the decision was found to be unreasonable;
- in 46 cases, the accused was denied the right to make submissions before the hearing officer imposed a disposition; and
- in 46 cases, the accused was denied the right to call witnesses or evidence in his or her defence.
Other breaches of procedural fairness included (but are not limited to) the right to have only evidence presented before the tribunal considered in a finding of guilt (24), the right to written reasons (20), the right to consult with counsel prior to or during the hearing (19), the right to know the evidence prior to the hearing (27), the right to cross-examine witnesses and challenge evidence prior to a determination of guilt (15), the right to be present at the hearing except in exceptional circumstances (8), and the right to have evidence and submissions completed before a determination of guilt (8).
Implementing independent adjudication of disciplinary hearings to decide cases based on a “beyond a reasonable doubt” standard would likely significantly improve the fairness of BC provincial disciplinary hearings. It would remove the actual or perceived bias of decision makers. It would also ensure that there is sufficient evidence to warrant a loss of liberty as significant as segregation before an accused is found guilty of an offence.
The vast majority of provincial prisoners will return to the community. It is in the interest of public safety that we treat prisoners fairly and in accordance with the law while they are incarcerated if we expect them to abide by the law upon their release to the community. When prisoners are treated fairly in their interaction with the state, they are more likely to internalize respect for the rule of law and become rehabilitated.
Prisoners’ Legal Services makes the following recommendations regarding the disciplinary hearing process:
1) That the Correction Act and Regulation be amended to require the independent adjudication of institutional disciplinary charges.
2) That the Correction Act and Regulation be amended to require the adjudication of institutional disciplinary charges on the “beyond a reasonable doubt” standard of proof.