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580 |
2004-01-19 |
COMMISSIONER'S DIRECTIVE
DISCIPLINE OF INMATES
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Issued under the authority of the Commissioner of the Correctional Service of Canada |
Annex A - Duties of Hearing Advisors
Annex B - Limitations on Recreational Privileges
1. To contribute to public safety and an orderly and safe correctional environment through a fair and transparent disciplinary process by:
- promoting compliance and discouraging non-compliance with institutional rules; and
- contributing to offender rehabilitation and successful community reintegration.
2. Corrections and Conditional Release Act, sections 27, 38 to 44 and 87;
Corrections and Conditional Release Regulations, sections 24 to 41, 74 and 76;
Canadian Human Rights Act, subsection 3(1).
3. CD 084 - Inmates' Access to Legal Assistance and the Police;
SOP 087 - Official Languages;
CD 581 - Violations of the Law by Inmates;
CD 585 - National Drug Strategy;
CD 590 - Administrative Segregation;
CD 770 - Visiting.
4. Informal resolution: Reasonable alternatives to the disciplinary process agreed to by both parties to address inappropriate inmate conduct with a view to preventing its recurrence. Informal resolution includes responses such as resolution circles, negotiation, mediation, counselling, cooperative problem solving, warnings and advice.
5. Privilege: An opportunity, activity or item that is not normally given to an inmate as a legal right or condition of confinement.
6. Serious offence: Commits, attempts, or incites acts that are:
- serious breaches of security;
- violent;
- harmful to others;
- repetitive violations of rules.
7. Minor offence: Other negative or non-productive inmate behaviour that is contrary to institutional rules.
8. Inmate discipline shall:
- be fair;
- use the least restrictive measures within the context of a particular decision, consistent with the protection of the public, staff and offenders;
- be corrective by design;
- reinforce the inmate's responsibility and accountability;
- give due consideration to culturally appropriate restorative approaches to discipline and informal resolution to encourage positive interaction between inmates and staff;
- be timely;
- be impartially determined and administered;
- take into consideration the inmate's mental health and, where applicable, consult with the patient's attending psychiatrist, before proceeding; and
- apply only those sanctions imposed by the person conducting the hearing.
9. The Institutional Head shall:
- ensure that during orientation, inmates are provided with an explanation of:
- behavioural expectations,
- institutional rules and regulations,
- the disciplinary process, including potential sanctions, and
- the fact that breaches of conduct will be considered in individual risk assessments for security classification, conditional releases, visits, personal family visits and program or employment assignments;
- establish a process for quality control and designation of charges;
- assign one staff member and alternate not below the level of Correctional Supervisor/ Assistant Team Leader to act as a major disciplinary Hearing Advisor (see Annex A for duties);
- assign one staff member and alternate to act as clerk of the major disciplinary court to make arrangements for the court;
- assign an appropriate location for disciplinary court, taking into account space, lighting, furnishings, noise level, and accessibility;
- ensure that inmates, witnesses and staff are aware that they must demonstrate respect for the disciplinary court through their demeanour and attire; and
- ensure that all staff, contractors and employees of contractors understand the inmate discipline policies and processes.
10. All staff, contractors and employees of contractors should encourage good inmate behaviour and attempt informal resolution of unacceptable behaviour, wherever possible. Contractors and employees of contractors should, as soon as possible, report inappropriate inmate behaviour and any measures taken to resolve the issue to an appropriate staff member.
11. Informal resolution or attempts shall:
- be considered by the witnessing officer as an option, at any point in the process, with the agreement of the parties involved, since circumstances may change during or following an incident or charge;
- be documented in an Officer's Statement/ Observation Report (form CSC 875) and/or in a Casework Record and noted in the unit log book by the staff member(s) observing the behaviour;
- be reviewed by the staff member responsible for quality control to ensure informal resolution was considered, attempted where possible, and documented; and
- include the participation of an Elder or Native Liaison Officer where appropriate.
12. During the review of the offence report, if new information or mitigating circumstances are identified, the designated staff member may request clarification from the witnessing officer and offender to determine whether informal resolution is now possible.
13. Restriction of movement to a particular area or cell may be used as a type of informal resolution of a disciplinary infraction (section 41 of the CCRA) and shall:
- not exceed eight (8) hours unless approved by the Institutional Head; and
- be immediately reported to the Correctional Supervisor/Assistant Team Leader or Unit Manager/Team Leader.
14. When informal resolution does not proceed, this must be noted by the witnessing officer and the formal disciplinary process must be initiated. The staff member, as soon as circumstances permit, shall:
- advise the offender that a report of the incident will be prepared and may result in a charge being laid;
- complete form CSC 222, "Inmate Offence Report and Notification of Charge", with the details of the incident and a description of informal resolution attempts, and explanations of failures; and
- submit the report to the Correctional Supervisor/Assistant Team Leader or the staff member in charge of the institution, no later than twenty-four (24) hours following the consideration of or attempts at informal resolution, unless exceptional circumstances apply.
DETERMINATION OF THE CATEGORY OF OFFENCE
15. The Institutional Head shall review each offence report and may, depending on the seriousness of the alleged conduct and any aggravating or mitigating factors, lay a charge of a minor or serious disciplinary offence, specifying under which paragraph of section 40 of the CCRA the charge is laid.
16. The Institutional Head may delegate this authority to a staff member, normally not below the level of Unit Manager/Team Leader or Coordinator of Correctional Operations, designated by name or position for that purpose in institutional Standing Orders.
17. The person categorizing the charge shall have no involvement in the incident that precipitated the offence report. Where appropriate, a committee may be established to assist designated persons in the review, quality control and designation of charges.
18. Threatening or assaultive behaviour toward staff members will normally be considered a serious offence and may also be referred to outside police.
19. If an inmate is charged with a drug or alcohol-related offence, this will normally be considered a serious offence.
20. Disrespectful language or actions toward staff shall normally result in a charge of a minor offence where it meets the terms of paragraph 40(f) or 40(r) of the CCRA.
CHARGES ARISING FROM RELATED ACTIONS
21. In accordance with section 26 of the CCRR, only one disciplinary charge shall result from any incident unless substantially different acts were committed.
22. If the incident does give rise to more than one disciplinary charge, all the charges shall be heard together. Where charges of minor and serious offences are to be presented together, they shall be heard by the Independent Chairperson.
23. The Institutional Head or a member designated by the Institutional Head shall normally inform the police force having jurisdiction when a serious offence has been committed which clearly contravenes an Act of Parliament. Inmates who have committed or are suspected of having committed a criminal offence shall be dealt with in accordance with CD 581.
24. When a police service becomes involved in the investigation of an offence, consultation will take place with police before a decision is made to proceed with disciplinary charges to prevent compromising the police investigation.
25. Institutional officials shall develop and strengthen relationships with local law enforcement and Attorney General representatives to ensure that criminal offences are considered for prosecution in a court of law.
ADVISING OFFENDERS OF PENDING DISCIPLINARY HEARINGS
26. The Institutional Head shall ensure that:
- the charge and possible sanctions are explained to the inmate;
- the inmate is advised of the right to retain and instruct legal counsel for the hearing of a serious charge (subsection 31(2) of the CCRR and CD 084); and
- the inmate is advised that he or she may submit a list of witnesses and/or documents he or she wishes prior to the hearing.
27. Within two (2) working days of the laying of the charge, the inmate shall be provided with:
- a copy of the offence report which:
- specifies whether the charge is minor or serious,
- describes the conduct and circumstances that led to the charge, and
- specifies the place, time and date of the alleged offence;
- a written summary of the evidence to be presented in support of the charge;
- documentation that will be provided to the Chairperson of the disciplinary hearing;
- when there is intent to make a verbal presentation of evidence during the hearing, a written gist of that presentation;
- a written notice of the place, time and date of the hearing.
28. Under exceptional circumstances, where any of the preceding requirements cannot be met, reasons shall be documented.
29. Where operationally feasible, a Correctional Supervisor/Assistant Team Leader should be present to support the Correctional Officer/Primary Worker delivering the offence report to an inmate. It will be at the discretion of the Correctional Supervisor/Assistant Team Leader as to whether the author of the offence report should be the same person who delivers the notice of charge to the inmate.
30. The Institutional Head or delegate, in consultation with the staff member who prepared the offence report, may withdraw a charge where new information suggests it is not warranted or all parties have agreed to an alternative resolution.
31. The disciplinary hearing shall be conducted in accordance with SOP 087.
32. Minor court should sit at least once a week and a system should be in place to ensure a suitable replacement if the person in charge is away.
33. The Institutional Head shall conduct the hearing of a minor offence. The Institutional Head may delegate this authority, normally not below the level of Correctional Supervisor/Assistant Team Leader.
34. An Independent Chairperson (section 24 of the CCRR) shall conduct the hearing of a serious offence, except in extraordinary circumstances where no Independent Chairperson is available within a reasonable period of time, in which case the Institutional Head may conduct the hearing.
35. A hearing of a charge of a disciplinary offence shall normally take place as soon as practicable but in any event not less than three (3) working days after the inmate receives written notice of the disciplinary charge, unless the inmate consents to a shorter period. This consent shall be in writing or recorded at the hearing.
36. The initial hearing of major and minor charges of a disciplinary offence shall normally take place within ten (10) working days after the laying of the charge.
37. Where an inmate who is charged with a disciplinary offence is placed in administrative segregation as a result of the conduct that gave rise to the disciplinary charge, his or her hearing shall be given priority in the order in which cases are heard.
38. Where the Independent Chairperson is satisfied that a charge of a serious offence should be dealt with as a minor offence, he or she shall amend the charge accordingly, and either proceed with the hearing or refer the matter to the Institutional Head (subsection 30(3) of the CCRR).
39. The Independent Chairperson may adjourn a hearing when necessary. Unreasonable delays may result in dismissal of charges.
40. The inmate shall appear personally throughout the entire hearing including during any deliberations on the imposition of sanctions unless:
- the presence of the inmate would jeopardize the safety or security of any person present at the hearing; or
- the inmate waives the right in writing, refuses to appear, or seriously disrupts the hearing.
41. Should an inmate wish to revoke his or her waiver of the right to attend the hearing, he or she may do so by advising the court.
42. Where an inmate will not appear at the hearing because of one of the conditions in paragraph 40, the inmate shall be advised that the hearing will proceed in his or her absence and that the record shall indicate the decision rendered.
43. Once the person conducting the hearing of a disciplinary offence is satisfied that the accused understands the content of the notice of charge, he or she shall ask the inmate to submit a plea. If the plea is "guilty", the person conducting the hearing of a disciplinary offence need only review the summary of the evidence before rendering a verdict. The inmate may provide an explanation.
44. If the plea is "not guilty", the accused inmate shall be given a reasonable opportunity at the hearing:
- to question witnesses through the person conducting the disciplinary hearing;
- introduce evidence;
- call witnesses on his or her own behalf;
- examine exhibits and documents to be considered in the taking of the decision; and
- make relevant submissions, including submissions regarding the appropriate sanction, during all phases of the hearing (subsection 31(1) of the CCRR).
45. The inmate's counsel shall be permitted to participate in the proceedings to the same extent as the inmate (subsection 31(2) of the CCRR).
46. An inmate who refuses to plead shall have the hearing conducted as if the plea was not guilty, and the records shall so reflect.
47. The rules of evidence in criminal matters do not apply in disciplinary hearings. The persons conducting the disciplinary hearing may admit any evidence they consider reasonable or trustworthy.
48. An accused inmate who gives evidence may be subject to questioning by the person conducting the disciplinary hearing.
49. Incriminating evidence given by the charged inmate or any witness during an informal resolution attempt or at a disciplinary hearing shall not be used as evidence in a disciplinary hearing unless contradictory evidence is given by the inmate or the witness. Previous attempts of informal resolution can however be brought to the attention of the Chairperson at the sentencing phase of the hearing.
50. If, in the opinion of the Institutional Head, producing a witness essential to the proceedings would cause unacceptable operational difficulties, the case may be dismissed by the person conducting the disciplinary hearing.
51. The person conducting the disciplinary hearing shall not find the inmate guilty unless satisfied beyond a reasonable doubt, based on the evidence presented at the disciplinary hearing, that the inmate committed the disciplinary offence in question.
SANCTIONS FOR DISCIPLINARY OFFENCES
52. Sanctions for an inmate found guilty of a disciplinary offence may include one or more of the following:
- a warning or reprimand;
- a loss of privileges;
- an order to make restitution;
- a fine;
- performance of extra duties; and
- in the case of a serious disciplinary offence, segregation from other inmates for a maximum of thirty (30) days.
53. Unless the Chairperson of the hearing specifies otherwise, the rate of payment of a fine or restitution from the inmate's account shall be 25% of the spending portion, until the fine is paid.
54. Where an inmate is ordered to serve a period of segregation while subject to a sanction of segregation for another serious offence, the order shall specify whether the two periods are to be served concurrently or consecutively. Where the sanctions are to be served consecutively, the total period of segregation imposed shall not exceed forty-five (45) days.
FACTORS TO BE CONSIDERED IN IMPOSING SANCTIONS
55. Before the imposition of a sanction, factors as cited in section 34 of the CCRR and impacts on the Correctional Plan shall be considered.
56. The member designated to assist in the hearing process, or other institutional staff, Elder or Native Liaison Officer, as appropriate, shall provide information relating to the factors mentioned in paragraph 55 to the person conducting the disciplinary hearing in the presence of the charged offender.
57. No private family visits shall take place during the period to be served in disciplinary segregation. At the time of sentencing, scheduled private family visits shall be brought to the attention of the Independent Chairperson for his/her consideration.
58. Conditions respecting a loss of privileges (see Annex B), an order to make restitution, payment of fines, and performance of extra duties, shall be imposed and carried out in accordance with sections 34 to 39 of the CCRR.
59. The inmate and the reporting staff member shall be notified, as soon as practicable, in writing, of the decision of the disciplinary court.
RECORDING OF DISCIPLINARY HEARINGS
60. Each institution shall have in place a process to ensure that all hearings of disciplinary charges are recorded in such a manner as to enable a full review to take place. These records shall be retained for at least two (2) years.
61. Every inmate shall be given reasonable access to the record of his or her disciplinary hearing and shall be given a copy of the recording upon request. The inmate shall be allowed to retain it with his or her stored personal effects.
62. A summary of all individual charges, findings, sanctions and reasons therefore shall be recorded in the Offender Management System within two (2) working days of the hearing.
63. Inmates in disciplinary segregation shall be accorded the same conditions of confinement as those inmates in the general population except for:
- restrictions imposed in the segregation unit with respect to association with other inmates;
- restrictions imposed in the segregation unit because of operational or security requirements; and
- restrictions on recreational privileges imposed by the Independent Chairperson.
64. Inmates in disciplinary segregation are allowed access to personal cell effects which comply with the security restrictions of the segregation unit as soon as practicable, but not more than five (5) days following admission.
65. Inmates in disciplinary segregation shall be provided with:
- case management services;
- access to spiritual support, including Aboriginal Elders;
- access to out-of-cell exercise (not to be less than one (1) hour per day);
- psychological counselling; and
- administrative, educational, and health care services.
66. Suspension, reinstatement, and cancellation of sanctions shall be in accordance with section 41 of the CCRR.
CONSULTATION WITH INDEPENDENT CHAIRPERSONS
67. Institutional Heads shall ensure a process is established whereby senior institutional management can exchange information with Independent Chairpersons on a regular basis. Discussions should include: institutional values, priorities, and objectives; staff and inmate perceptions; managerial concerns; and a review of court decisions which impact on the inmate disciplinary process.
68. Institutional Heads should initiate meetings with their Independent Chairpersons to seek agreement on what steps can be taken to attempt informal resolution in typical situations, and the documentation required to demonstrate the reasonable steps taken, or explain why informal resolution was not possible.
69. Regional meetings should be held periodically between Independent Chairpersons and key regional and institutional staff. The Hearing Advisors should participate in these meetings.
70. Institutional Heads shall encourage Independent Chairpersons and inmate population representatives to meet to discuss institutional issues relevant to discipline.
71. Independent Chairpersons shall have access to briefing sessions and updates on recent developments in inmate discipline and at the same time be able to discuss their individual experiences and practices.
72. In accordance with paragraph 24(2)(a) of the CCRR, the Senior Independent Chairperson for the region should advise and train Independent Chairpersons within his or her region.
73. Inmates may use the grievance process with regard to any aspect of procedures or decisions relating to hearings for minor offences, but they may not grieve those procedures or decisions relating to hearings for serious offences that are under the exclusive jurisdiction of an Independent Chairperson.
74. Decisions rendered by the Independent Chairperson cannot be grieved. However, the case may be re-opened at the Independent Chairperson's discretion if new evidence for or against the inmate is brought forward, or if evidence of a procedural error is presented. A member designated by the Institutional Head shall liaise with the Chairperson and ensure that the inmate receives a clear explanation of any changes to the status of his or her case.
75. Decisions of Independent Chairpersons may be reviewed by the Federal Court, Trial Division, upon application by the aggrieved party.
Lucie McClung, Commissioner
Annex A
DUTIES OF HEARING ADVISORS
Each Hearing Advisor shall normally be responsible for:
- ensuring continuity and facilitating the disciplinary process as well as ensuring the security of the Independent Chairperson (ICP) and the various persons attending the hearing;
- ensuring the quality and availability of all institutional material, documents or details required for the hearing or requested by the ICP;
- assisting witnesses or any other persons involved in the hearing by providing information about roles and responsibilities in the disciplinary process and hearings;
- keeping staff members of the charged offender's unit up-to-date on the case;
- prior to the hearing, reviewing the offender's files, and/or speaking to case management, in order to provide relevant information to the ICP prior to sentencing, should the charged offender be found guilty;
- after conviction but before sentencing, advising the ICP on issues and recommendations which might affect sentencing. Such issues might include but are not limited to:
- the inmate's history of disciplinary offences;
- the particular needs and circumstances of the offender, including the relevant cultural and historical factors in an Aboriginal offender's background;
- the recreational privileges that can be considered for sanctions (for loss of privileges);
- institutional policy on loss of privileges;
- administrative consequences already imposed as a result of the same offence;
- possible conflict with the Correctional Plan.
Advisors may be assigned other responsibilities, including:
- keeping the ICP informed about the institution's hearing schedule or calendar;
- arranging for and ensuring the availability of the charged inmate, witnesses, and other evidence, including matters arising from charges that may be transferred from other institutions;
- notifying staff who are required to testify several days in advance (they should be advised of the date and time of the appearance, and provided with a copy of the offence report originally submitted);
- obtaining confirmation (wherever possible) through written waivers signed by inmates who refuse to attend their own hearings;
- determining whether producing a witness essential to the proceedings would cause unacceptable operational difficulties;
- ensuring that all disciplinary hearings are tape recorded, so that the hearing can be fully reviewed, if necessary;
- carrying out directions of the ICP with respect to the conduct of hearings;
- ensuring that all charged offenders are given copies of the decisions on their cases as soon as is practicable after the decisions are made;
- ensuring that hearing records (tapes) are filed and retained for a full two (2) years, and that inmates are given reasonable access to their own records;
- ensuring proper documentation of all charges laid, findings, sanctions and the reasons for each;
- preparing a summary report for monthly review by the Institutional Head of all disciplinary proceedings.
Hearing Advisors may assume other responsibilities related to the disciplinary process and hearings. These might include:
- ensuring that during orientation to the institution, inmates are advised orally and in writing, that failure to respect the rules and regulations may lead to disciplinary action;
- ensuring that contractors and their employees are aware of their responsibilities to report unsatisfactory inmate behaviour and any measures taken towards resolution;
- assisting the Unit Manager/Team Leader or Senior Manager (or equivalent) to monitor oral and written reports prepared for major disciplinary court;
- scheduling disciplinary court hearings;
- ensuring that the charged offender has been given a reasonable opportunity to retain and instruct legal counsel without delay;
- educating or training other staff members in the disciplinary process, and about disciplinary hearings;
- ensuring that proper records are kept in appropriate files and that appropriate entries are made in the Offender Management System;
- notifying inmates in writing of changes in their hearing dates;
- preparing movement permits for inmates who have been charged as well as witnesses;
- notifying the front gate staff and the Correctional Supervisor/Assistant Team Leader of visits by the ICP and counsel, and providing an escort for these persons;
- providing enough correctional staff members to ensure the smooth operation of the hearing and the movement of witnesses;
- at the beginning of the hearing, checking the sound recording system and dictating: "Major disciplinary court hearing held on (date) at (time), in (name) Institution, ICP (name) presiding, assisted by Hearing Advisor (name);
- ensuring that all appearances in court from beginning to end are recorded on cassette, and noting the counter reading at the beginning and the end of each case in order to follow up on the data recorded on the cassette;
- contacting counsel involved in cases in order to ensure that they attend;
- ensuring that the hearing can be held in the official language of the inmate's choice and that testimony given in the other official language can be interpreted (if the accused speaks neither official language, the services of an interpreter will be required);
- notifying appropriate accommodation areas and the Correctional Supervisor's/Assistant Team Leader's office of immediate disciplinary measures involving segregation; and
- in cases of disciplinary segregation, ensuring that the information on the disciplinary measure is recorded in the Segregation Log.
Hearing Advisors must excuse themselves from any proceedings arising from incidents in which they were directly involved leading to the laying of charges.
Some functions listed above may be delegated to a court clerk.
Original signed by :
Irving Kulik
Assistant Commissioner
Correctional Operations and Programs
Annex B
LIMITATIONS ON RECREATIONAL PRIVILEGES
Paragraph 35(2)(a) of the CCRR specifies that the loss of privileges shall be limited to a loss of access to activities that are recreational in nature.
Reasonable limitations on recreational privileges used as a sanction may include, but are not restricted to, extent of access to:
- out-of-cell (or room) exercise time per day respecting inmate rights and health requirements;
- television and electronic games;
- hobby crafts (whether in the cell/room, shop, or other area);
- music and musical instruments;
- opportunities to associate with others.
Any sanctions of a recreational nature must respect the factors outlined in section 34 of the CCRR and must be considered on a case by case basis.
If the sanction is loss of access to an item for recreation purposes, and should the sanction be disobeyed, the item may be confiscated to enforce the sanction.
Visits, religious and spiritual activities which are not recreational in nature cannot be restricted as a sanction under section 44 of the CCRA.
Original signed by :
Irving Kulik
Assistant Commissioner
Correctional Operations and Programs
