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INMATE DISCIPLINE

INFORMAL RESOLUTION STEPS ARE MANDATORY


In order to proceed with an Inmate Disciplinary Hearing, the Chairperson must be firstly be satisfied that there is a valid charge to be considered.  In the absence of a charge that is legally valid, there would be no jurisdiction over the matter.


It is clear under the Corrections and Conditional Release Act (1992, c. 20), section 41, a charge can only be laid by the Institution Head where in informal resolution is not achieved:


 Informal resolution


41. (1) Where a staff member believes on reasonable grounds that an inmate has committed or is committing a disciplinary offence, the staff member shall take all reasonable steps to resolve the matter informally, where possible.


Charge may be issued


(2) Where an informal resolution is not achieved, the institutional head may, depending on the seriousness of the alleged conduct and any aggravating or mitigating factors, issue a charge of a minor disciplinary offence or a serious disciplinary offence.


It is also clear that the subordinate CSC Directives and Policies carry out the intent of the legislation in regards to the mandatory nature of the requirement for informal resolution as a condition precedent to the laying of a charge.


Indeed, if that were not the law, the Institution Head could simply proceed with charges in every case and completely ignore the requirements for informal resolution:


 Commissioner's Directive 580 - DISCIPLINE OF INMATES


INFORMAL RESOLUTION


11. Informal resolution or attempts shall:


a 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;


         b 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;


c be reviewed by the staff member responsible for quality control to ensure informal resolution was considered, attempted where possible, and documented; and


d include the participation of an Elder or Native Liaison Officer where appropriate.


Policy Bulletin 169


The policy requires that informal resolution always, at the very least, be considered as an option and where possible, be attempted.




The law is extremely clear in this area.  Informal resolution is mandatory, the statute, regulations, commissions directive, and policy expiration all use the word shall.




The question of informal resolution must be resolved as a condition precedent to proceeding with the hearing.  The following is extracted from the Federal Court of Canada - Trial Division case of  Schimmens:


John Schimmens V  Attorney General of Canada & Warden of Bowden Institution (Date: 1998 10 15 / Docket: T-65-98)


CAMPBELL, J.:


[1]      This is an application for judicial review pursuant to s. 18.1 of the Federal Court Act R.S.C. 1985, c. F-7 of a decision of the institutional court of Bowden Institution made on December 17, 1997, in which the Applicant was convicted of an inmate offence contrary to s. 40(h) of the Corrections and Conditional Release Act S.C. 1992 c.20.


[2]      A primary argument raised by the Applicant concerns whether the provisions of s. 41(1) of the Act were complied with. These provisions read as follows:


     (1)      Where a staff member believes on reasonable grounds that an inmate has committed or is committing a disciplinary offence, the staff member shall take all reasonable steps to resolve the matter informally, where possible.          


     (2)      Where an informal resolution is not achieved, the institutional head may, depending on the seriousness of the alleged conduct and any aggravating or mitigating factors, issue a charge of a minor disciplinary offence or a serious disciplinary offence.          


         [Emphasis added]


[3]      I agree with the Applicant's argument that s. 41(1) establishes a condition precedent which must be met before the institutional court has jurisdiction to proceed with the hearing of a charge. Thus, I find s. 41(1) creates an obligation on the institutional court member before hearing a charge to investigate to be satisfied that "all reasonable steps to resolve the matter informally, where possible" have been taken.


[4]      Respecting the obligation created under s. 41(1), the institutional court member hearing the charge in this case said as follows:


                 "I am taking into account the, the, the resolution procedure which was attempted to be followed, which I think is pretty much a administrative thing, doesn't go to the heart of the charge, but I think that some efforts were made to resolve this informally but didn't work. But as I say that does not effect the validity of the charge but I think it is one of the things I can consider as to whether I treat this as a major or minor matter."1                


[5]      With respect, I find that the member misapprehended the meaning of s. 41(1), and as a result, the obligation created by its provisions was not discharged.


[6]      Accordingly, I set the decision herein aside and refer the matter back to another member of the institutional court for rehearing in accordance with these reasons.

Jim O'Neil, LL.B.

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