Commissioner's directive 580: Discipline of inmates

Responsibilities

1. The Assistant Commissioner, Correctional Operations and Programs, will ensure the coordination with the Minister’s Office of the appointment process for Independent Chairperson(s).
2. The Director General, Security, will:
1. ensure procedures related to the discipline of inmates are within the scope of the CCRA, the CCRR and relevant Correctional Service of Canada (CSC) policy
2. collaborate with the Director General, Learning and Development, regarding training standards on the discipline of inmates
3. ensure that the administrative processes for the ongoing recruitment of Independent Chairpersons are clearly defined.
3. The Regional Deputy Commissioner will ensure that the policy and procedures pertaining to the discipline of inmates are consistently applied across all institutions within their respective region.
4. The Regional Administrator, Security, will ensure that a process is in place to communicate with Independent Chairpersons within their respective region no less than 30 days prior to the completion of their appointments to confirm awareness of the specified end date of the appointment.
5. The Institutional Head will:
1. ensure that during orientation, inmates are made aware of the following, both verbally and in writing:
1. behavioural expectations
2. that failure to respect the rules and regulations may lead to disciplinary action
3. the disciplinary process, including potential sanctions
4. that breaches of conduct and rules will be considered in progress documents and risk assessments for security classification, conditional releases, visits, private family visits and program or employment assignments
2. through a Standing Order, establish procedures for all aspects of the disciplinary process which includes:
1. ensuring that all staff and contractors have access to training/orientation on inmate discipline and that they understand the disciplinary process
2. establishing a process for the review of incidents to determine whether institutional charges should be issued. The Institutional Head may delegate the authority to lay a charge for a minor or serious disciplinary offence under section 40 of the CCRA to a staff member not below the level of Correctional Manager (which will not be the person assigned to act as Serious Disciplinary Hearing Advisor)
3. identifying those staff responsible for facilitating the disclosure and advanced viewing of video evidence by inmates and their legal counsel who require this access as part of their defence
4. advising the inmate that arrangements for an interpreter will be made if they do not speak or understand either of the official languages or have a disability that requires the use of an interpreter
5. the assignment, for a minimum period of two years when possible, of one staff member and an alternate, not below the level of Correctional Manager, to act as Serious Disciplinary Hearing Advisor (see GL 580-1 - Duties of the Serious Disciplinary Hearing Advisor and Clerk)
6. the assignment, for a minimum period of two years when possible, of one staff member and an alternate to act as Serious Disciplinary Hearing Clerk to coordinate arrangements and scheduling of the hearings (see GL 580-1 - Duties of the Serious Disciplinary Hearing Advisor and Clerk)
7. ensuring that inmates, witnesses and staff are aware that they must dress and act in a respectful manner when in a disciplinary hearing
8. ensuring that disciplinary processes are limited to the least restrictive measures consistent with the protection of society, staff members and inmates
3. ensure that minor disciplinary hearings occur at least once a week
4. ensure that Independent Chairperson vacancies are filled pursuant to the established process.
5. ensure that the staff involved consider Indigenous social history for Indigenous inmates as part of the hearing process in accordance with subsection 79.1(1) of the CCRA.
6. The Assistant Warden, Operations/Manager, Operations, will:
1. oversee the application of the disciplinary process
2. provide support and guidance to Correctional Managers in relation to their role within the disciplinary process
3. identify trends and reinforce appropriate application of the disciplinary process.
7. The Serious Disciplinary Hearing Advisor will be proficient with the inmate disciplinary process, as outlined in GL 580-1 - Duties of the Serious Disciplinary Hearing Advisor and Clerk.

Procedures

8. Inmates are expected to obey penitentiary rules and actively participate in meeting the objectives of their Correctional Plan, through their participation in programs designed to promote their rehabilitation and reintegration.
9. Where a staff member believes on reasonable grounds that an inmate has committed or is committing a disciplinary offence, the staff member will take all reasonable steps to resolve the matter informally, where possible
10. Inmates seeking emergency assistance, because they or another inmate at the scene are suffering from a life-threatening situation as a result of an overdose, will not be charged with a disciplinary offence under section 40 of the CCRA, even if evidence was seized.
11. Serious Disciplinary Hearing Advisors must recuse themselves from any proceedings arising from incidents in which they were involved that led to the laying of charges.

Informal Resolution

12. Informal resolution or attempts at informal resolution will:
1. be considered by the witnessing staff member completing the offence report as an option, at any point in the process, with the agreement of the parties involved
2. be documented in a Statement/Observation Report, submitted to the Correctional Manager to demonstrate its consideration and/or application in the process, and where applicable, noted in the unit log book by the witnessing staff member
3. be reviewed by the Correctional Manager responsible for quality control to ensure informal resolution was considered and attempted where possible
4. include the participation of others (e.g., Elder/Spiritual Advisor, Elder’s Helper, Indigenous Liaison Officer, Citizen Advisory Committee member), where appropriate, and will be documented in the Statement/Observation Report
5. include the participation of a registered health care professional, where appropriate, which will be documented in the Statement/Observation Report
6. be considered during the review of the offence report if new information or mitigating circumstances are identified
7. include follow-up with the witnessing staff member and the inmate to determine whether informal resolution is now possible.
13. If restriction of movement to a particular area or cell that is normally accessible is used as a type of informal resolution for a disciplinary offence pursuant to section 41 of the CCRA, it will:
1. be mutually agreed upon by the staff member and the inmate(s) involved
2. be immediately reported to the Institutional Head or delegate
3. be limited to a maximum of four hours
4. be appropriately documented in a Statement/Observation Report.

Formal Disciplinary Process

14. When informal resolution does not proceed or is unsuccessful, the formal disciplinary process must be initiated and the witnessing staff member will:
1. advise the inmate that a report of the offence will be prepared and may result in a charge being laid (if circumstances permit and this is not likely to exacerbate the situation)
2. consider mental health concerns and their potential relevance to the offence. This will include soliciting input from a registered health care professional when a need related to mental health concerns exists for the inmate in the Offender Management System. The sharing of relevant mental health information, where applicable, will be in accordance with CD 701 -Information Sharing. This consultation will be reflected on the Inmate Offence Report and Notification of Charge (CSC/SCC 0222) and documented in the accompanying Statement/Observation Report
3. complete an Inmate Offence Report and Notification of Charge (CSC/SCC 0222)
4. submit the report to the Correctional Manager no later than 24 hours following the alleged offence. Documentation of the consideration of, or attempts at, informal resolution and the consideration of mental health, where applicable, will be included with the submission. In cases where the witnessing staff member does not have access to the Offender Management System to verify an identified need related to mental health concerns, the Correctional Manager will assume this responsibility
5. ensure communications/reports are provided to the inmate in the official language of their choice, where applicable.

Determination of the Category of Offence

15. The Institutional Head or delegate will review each offence report within five working days of its submission. Depending on the seriousness of the alleged conduct and any aggravating or mitigating factors, the Institutional Head or delegate may lay a charge of a minor or serious disciplinary offence, specifying the charge laid, pursuant to section 40 of the CCRA. Mental health must be considered in relation to mitigating factors.
16. The person categorizing the charge will not have been involved 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.
17. A disciplinary offence categorized as a serious offence may also be referred to police services, pursuant to CD 581 - Violations of the Law by Inmates and CD 568-4 - Preservation of Crime Scenes and Evidence, as it may also constitute a criminal offence. The disciplinary charge should be held in abeyance until the criminal charge is dealt with.

Charges Arising from Related Actions

18. Pursuant to section 26 of the CCRR, only one disciplinary charge will result from any incident unless the acts committed are substantially different.
19. If the incident does give rise to more than one disciplinary charge, all the charges will be heard together. When minor offences and serious offences are to be presented together, they will be heard by the Independent Chairperson.

Advising Inmates of Pending Disciplinary Hearings

20. Within two working days of the laying of the charge, the inmate will be provided with a copy of the Inmate Offence Report and Notification of Charge (CSC/SCC 0222) that includes the details of the charge, as well as:
1. copies of documentation that will be provided to the Independent Chairperson of the disciplinary hearing
2. a written notice of the place, date and time of the hearing.
21. The Correctional Manager or designate will:
1. explain the charge and possible sanctions to the inmate
2. ensure the inmate is advised of their right to retain and instruct legal counsel for the hearing of any charge
3. advise the inmate that they may submit a list of witnesses and/or documents they wish to receive prior to the hearing.
22. The Institutional Head or designated staff member conducting a minor disciplinary hearing must consider any requests for counsel. Reasons for the refusal of request for counsel will be documented in the institutional charges log.
23. When any of the preceding requirements cannot be met, the Correctional Manager or designate will document the reasons in the institutional charges log and share them with the charging staff. This would only be in exceptional circumstances.
24. If the situation demands it, and where operationally feasible, a Correctional Manager should be present to support the Correctional Officer/Primary Worker delivering the offence report to an inmate. The Correctional Manager has the discretion as to whether the author of the offence report should be the same person who delivers the notice of charge to the inmate.

Withdrawals

25. The Institutional Head, or delegate not below the level of Correctional Manager, in consultation with the staff member who prepared the offence report, may withdraw a charge when new information suggests it is not warranted, when the matter has been resolved informally, or when other procedural requirements were not met.
26. A charge may also be withdrawn after a prescribed timeframe has lapsed (e.g., submission of notification of charge to inmate, timing of hearing after laying of the charge, time between reception of written notice and hearing).
27. The Institutional Head, a delegate not below the level of Correctional Manager, or the hearing Independent Chairperson must document any withdrawals, including the reason for the lapse when appropriate, on the Inmate Offence Report and Notification of Charge (CSC/SCC 0222).

Independent Chairpersons

28. The Institutional Head or delegate, normally not below the level of Correctional Manager, will conduct the hearings for minor offences. Delegated staff members must recuse themselves from conducting the hearing if they were directly involved in incidents leading to the laying of charges.
29. The Independent Chairperson will conduct the hearings for serious offences. When no Independent Chairperson is available within a reasonable period of time, the Institutional Head may conduct the disciplinary hearing.

Timing of Hearings

30. The initial hearing of serious and minor charges of a disciplinary offence will normally take place within 10 working days of laying of the charge.
31. Following the receipt of the written notice of disciplinary charges, the inmate will normally have a minimum of three working days to prepare for the hearing. The inmate can consent to a shorter period, in writing, via an Inmate’s Request (CSC/SCC 1122) or consent can be provided and recorded at the hearing.

Hearings

32. Interpretation services, provided by staff where available or a formal service provider, will be present at the hearing if the accused inmate does not speak or understand either official language, or has a disability that would require the use of an interpreter.
33. All disciplinary hearings will be recorded to enable a full review to take place. These records will be retained for two years.
34. Every inmate will be given reasonable access to the recording of their disciplinary hearing and be given a copy of the recording within five working days upon submitting a request. The inmate will be allowed to retain it with their stored personal effects.
35. As a standard procedure, when a legal counsel is requesting access to the audio recording of a hearing, a copy should be provided to the inmate, unless written authorization has been obtained specifying that the legal counsel is in fact representing the inmate, in which case, it is to be provided to the legal counsel. The inmate will be responsible for expenses associated with shipping the copy to the legal counsel.

Change in Category of Offence

36. When the Independent Chairperson is satisfied that a charge of a serious offence can be dealt with as a charge of a minor offence, they will amend the charge accordingly. The Independent Chairperson can then either proceed with the hearing or refer the matter to the Institutional Head, pursuant to subsection 30(3) of the CCRR.

Adjournment of Hearings

37. The Independent Chairperson may adjourn a hearing when necessary. Unreasonable delays caused by the institution may result in dismissal of charges.

Inmate Attendance

38. Inmates will appear in person (or if required, via video conference if they have been transferred/ moved to another institution/unit prior to their scheduled hearing) throughout the entire hearing. This includes during any deliberations on the imposition of sanctions unless:
1. their presence would jeopardize the safety or security of any person present at the hearing
2. they waive, in writing, their right to attend the hearing, refuse to appear, or seriously disrupt the hearing.
39. Where an inmate does not appear at the hearing because of one of the conditions listed above, staff will advise the inmate that the hearing will proceed in their absence and that the record will indicate the decision rendered.

Plea

40. Once the Independent Chairperson is satisfied that the accused understands the content of the notice of charge, the Independent Chairperson will ask the inmate to submit a plea. If the plea is “guilty”, the Independent Chairperson need only review the summary of the evidence before rendering a verdict. The inmate may provide an explanation for their actions.
41. If the plea is “not guilty”, the inmate will be given a reasonable opportunity at the hearing to:
1. question witnesses through the Independent Chairperson
2. introduce evidence
3. call witnesses on their own behalf
4. examine exhibits and documents to be considered in the taking of the decision
5. make relevant submissions during all phases of the hearing, including submissions regarding the appropriate sanction pursuant to subsection 31(1) of the CCRR.
42. The inmate’s legal counsel will be permitted to participate in the proceedings to the same extent as the inmate pursuant to subsection 31(2) of the CCRR.
43. When an inmate refuses to plead or is not in attendance for reasons identified in the section Adjournment of Hearings (for which an adjournment has not been made), a “not guilty” plea will be entered into the record.

Presentation of Evidence

44. The rules of evidence in criminal matters do not apply in disciplinary hearings. The Independent Chairperson conducting the disciplinary hearing may admit any evidence they consider reasonable so as to conduct a full inquiry with due regard to the duty to act fairly. Pursuant to subsection 27(3) of the CCRA, all documentary evidence (including video evidence) to be considered in the hearing of the disciplinary charge must be disclosed to the inmate.
45. An inmate who gives evidence may be subject to questioning by the Independent Chairperson.
46. Incriminating evidence given by the charged inmate, or by any witness during an informal resolution attempt or at a separate disciplinary hearing, will not be used as evidence in an inmate disciplinary hearing. Previous attempts at informal resolution can, however, be brought to the attention of the Independent Chairperson at the sentencing phase of the hearing.
47. If the Institutional Head believes that producing a witness essential to the proceedings would cause operational difficulties, the Independent Chairperson may dismiss the case.
48. Based on the evidence presented at the hearing, the Independent Chairperson will only find the inmate guilty if they are satisfied, beyond a reasonable doubt, that the inmate committed the disciplinary offence in question.

Video Evidence

49. If video evidence (obtained through closed circuit television [CCTV] or portable camera) is relied upon by the institution to pursue the disciplinary charge, the inmate must be provided the opportunity to view the video before the hearing as part of their defence.
50. Within 24 hours of receiving a notification of charge, the inmate may request in writing video evidence for their defence even when it is not relied upon by the institution to pursue the disciplinary charge. If it is determined by the Institutional Head or delegate, not below the level of Correctional Manager, that the video has significant and demonstrable bearing on the matter at hand, the inmate will be provided an opportunity to view the video before the hearing.
51. Only those portions of a video recording believed to contain evidence are to be viewed. Every effort will be made to respect the privacy of, and minimize the impact on, persons not specifically involved in the incident that lead to the laying of charges. Copies of video evidence will not be provided to inmates for their retention.
52. If the video is not considered to have significant demonstrable bearing on the matter at hand, the reason(s) for denying the request must be documented on a Statement/Observation Report and placed on the inmate’s Discipline and Dissociation file. The Institutional Head or delegate, not below the level of Correctional Manager, will notify the inmate, in writing and before the hearing, of the reason(s) the request was denied.

Factors to be Considered when Imposing Sanctions

53. Before the imposition of a sanction, the inmate’s state of health and health care needs pursuant to paragraph 87(a) of the CCRA, the factors listed in section 34 of the CCRR, and the impacts on the Correctional Plan must be considered. The sharing of personal health information will be in accordance with CD 701 - Information Sharing.
54. The staff designated to assist in the hearing process will provide information relating to the factors listed in section 34 of the CCRR. For Indigenous inmates, others participating in the hearing (e.g., Elder/Spiritual Advisor, Elder’s Helper or Indigenous Liaison Officer) will provide information on Indigenous social history and the factors set out in subsection 79.1(1) of the CCRA, which will be considered by the Independent Chairperson.
55. Scheduled private family visits will be brought to the attention of the Independent Chairperson for consideration at the time of imposing a sanction.
56. Conditions respecting a loss of privileges (see Annex B), an order to make restitution, payment of fines, and performance of extra duties, will be imposed and carried out pursuant to sections 34, 35, 36, 37, 38 and 39 of the CCRR.

Sanctions for Disciplinary Offences

57. Pursuant to subsection 44(1) of the CCRA and CD 860 - Offender’s Money, sanctions for an inmate found guilty of a disciplinary offence may include one or more of the following:
1. a warning or reprimand
2. a loss of privileges
3. an order to make restitution, including in respect of any property that is damaged or destroyed as a result of the offence
4. a fine
5. performance of extra duties.
58. For fines or restitution resulting from a disciplinary process, the rate of payment is a maximum of 25% of the total income to be deposited in the Inmate Trust Fund (this percentage will take into account the amount to be deposited), unless the Independent Chairperson of the disciplinary hearing specifies otherwise.
59. A summary of all individual charges, findings, sanctions and reasons will be documented in the Minor/Disciplinary Court Information screen of the Offender Management System within five working days of the hearing.
60. Suspension, reinstatement, and cancellation of sanctions will be pursuant to section 41 of the CCRR.
61. All cancellation of sanctions pursuant to subsection 41(3) of the CCRR will be documented in a Statement/Observation Report and/or in a Casework Record, as well as in the Inmate Offence Report and Notification of Charge (CSC/SCC 0222).

Decision

62. The inmate and the reporting staff member will be provided copies, as soon as practicable, of the decision of the disciplinary hearing as outlined in GL 580-1 - Duties of the Serious Disciplinary Hearing Advisor and Clerk.

Redress

63. Correctional decisions are made in a forthright and fair manner, with access by the inmate to an effective grievance procedure.
64. Inmates
65. may grieve procedures or decisions related to hearings for minor offences pursuant to CD 081 – Offender Complaints and Grievances.
66. Decisions rendered by the Independent Chairperson cannot be grieved. However, at the discretion of the Independent Chairperson, the case may be re-opened if new evidence is brought forward, or if evidence of a procedural error is presented. The Serious Disciplinary Hearing Advisor will liaise with the Independent Chairperson to ensure that the inmate receives a clear explanation of any changes to the status of their case.
67. Should an inmate wish to challenge a decision made by the Independent Chairperson, they may submit an application for Judicial Review through the Federal Court, Trials Division.

Consultation with Independent Chairpersons

67. To contribute to the continued awareness and understanding of the disciplinary process, the Institutional Head will support ongoing communications between institutional management and the Independent Chairperson, while ensuring that there is no attempt to direct or influence the Independent Chairperson and interfere with the independence required of the position.

Commissioner,
Original signed by:
Anne Kelly

Annex B - Limitations on Recreational Privileges

1. Paragraph 35(2)(a) of the CCRR specifies that the loss of privileges will be limited to a loss of access to activities that are recreational in nature.
2. Reasonable limitations on recreational privileges used as a sanction may include, but are not restricted to:
1. out-of-cell (or room) exercise time per day respecting inmate rights and health requirements (e.g., a minimum of one hour per day, outdoors, or indoors where the weather does not permit exercising outdoors). The time allotted for daily showers is not included in the minimum one hour out-of-cell exercise
2. television and electronic games
3. hobby crafts (whether in the cell/room, shop, or other area)
4. music and musical instruments
5. opportunities to associate with others.
3. Any sanctions of a recreational nature must respect the factors listed in section 34 of the CCRR and must be considered on a case-by-case basis.
4. 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.