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Independent Chairperson to Adjudicate Disciplinary Proceedings

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Justice for inmates is a personal right and also an essential condition of their socialization and personal reformation. It implies both respect for the persons and property of others and fairness in treatment. The arbitrariness associated with prison life must be replaced by clear rules, fair disciplinary procedures and the providing of reasons for all decisions affecting inmates.

Principle 12, MacGuigan Report, 1977

The establishment of the Independent Chairperson (ICP) system to adjudicate disciplinary proceedings is a notable achievement in the history of federal corrections. ICPs were first appointed in 1977 in response to the recommendations of the MacGuigan Report, a Parliamentary inquiry into the Penitentiary Service of Canada. Echoing previous committees and studies, the MacGuigan Report criticized the Warden's Court system of adjudicating disciplinary matters, in which wardens and their delegates made decisions, as lacking both independence and impartiality. Additionally, disciplinary hearings were also denounced for failing to comply with procedural rules and fairness. In response, it was recommended that independent persons external to the institution be appointed to uphold the appearance of justice and to ensure that disciplinary hearings were fair and equitable.

The newly established Correctional Investigator was the first to recommend that discipline courts be directed by external chairpersons in her annual report of 1973-74. In response to the Correctional Investigator's recommendations, a Study Group on Dissociation was commissioned by the Solicitor General to inquire into the use of dissociation as a form of institutional discipline. The Chair of the Study Group, James Vantour, reported that offenders generally viewed the disciplinary hearing with disrespect and bitterness. Although there were many complaints concerning the lack of compliance with procedural rules and fairness, Vantour stressed that the issue of greatest concern to offenders was the composition of the disciplinary board and the actual hearing itself. Since the chair of the hearings was also the warden of the institution, they were seen as representing institutional interests and biased against the offender. Vantour concluded, "the present composition of the disciplinary board prohibits the appearance of justice" and recommended that ICPs be appointed to adjudicate serious disciplinary hearings and apportion sanctions.

Legal scholar Michael Jackson made similar findings and recommendations a year prior to the Vantour Report. In his independent study, Jackson reported that offenders referred to the disciplinary hearing process as a "Kangaroo Court" and often pleaded guilty to the offence simply to avoid prolonging the proceedings. Jackson noted that the dominant feature of the disciplinary proceedings was a presumption of guilt and not innocence. According to Jackson, much of the evidence admitted in the proceedings was based on hearsay and rumor, and some decisions were taken on the basis of the warden's previous knowledge and experience with the offender instead of the offence and evidence at issue.

A final call for the appointment of ICPs cam from the MacGuigan committee in 1977. In addition to reiterating the concerns expressed in earlier reports, MacGuigan emphasized that employees of CSC were also dissatisfied with the disciplinary process because it took too long after a disciplinary charge was laid to have it addressed. It was further noted that some institutional directors had expressed a desire to be relieved of the obligation of chairing disciplinary hearings and were supportive of an independent process. In concluding that the present system was "neither particularly just nor particularly efficient", MacGuigan stated that "independent chairpersons for disciplinary hearings are required immediately as a basic demand of justice at all penitentiary institutions of Canada".

The MacGuigan Report was very influential in corrections and many of its recommendations, including the establishment of the ICP system, were instituted. The first ICPs to preside over disciplinary courts in maximum-security institutions were appointed in December of 1977. By 1980, CSC had extended the system to medium-security institutions and subsequently to all offenders facing serious charges. Today, ICPs are responsible for determining whether the offender is guilty of an offence, for presiding over all aspects of the disciplinary hearing and for imposing appropriate sanctions.