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When the prosecutor hires the judge | Murray Fallis

Tuesday, May 11, 2021 @ 11:46 AM | By Murray Fallis

Murray Fallis %>
Murray Fallis
It is difficult for an individual to understand something when their salary depends on them not understanding it.”   
Upton Sinclair

Perhaps the biggest misnomer in the Corrections and Conditional Release Regulations (CCRR), is the use of the word “independent” to describe independent disciplinary chairpersons (IDCPs). Indeed, a truer conflict of interest is difficult to imagine.

Section 24 (1) of the CCRR requires the minister of public safety to appoint a person to act as an IDCP. This individual presides over prison disciplinary offences. The general mandate of the independent chairperson is to ensure a fair and impartial adjudication proceeding for each prisoner who is charged with a serious disciplinary offence.

The dilemma is, the minister delegates his responsibility to Correctional Service Canada (CSC), the very entity which is responsible for prosecuting serious disciplinary offences. Indeed, in a recent job posting for new IDCP roles, note a list of CSC e-mail addresses to send one’s application to.

This means that the entity prosecuting serious disciplinary offences appoints the judge who oversees these proceedings. The same entity which seeks a conviction, selects the “independent” disciplinary chairperson. Under s.  24 (2) of the CCRR, the same process occurs for the appointment of a senior “independent” chairperson, who “trains” other IDCPs in the region. It would be interesting to examine the procedural fairness processes which occur in these “courts.” Naturally, no transcripts are publicly accessible. Individual audio recordings of individual trials are only available on a case-by-case basis. The specific individual who was charged must file a request with CSC and wait patiently for the recording.

Though the “independence” of the hiring process and the lack of oversight is perhaps laughable, I assure you it is anything but for those who suffer the impacts of procedural breaches. Under the Corrections and Conditional Release Act (CCRA) and CCRR, serious disciplinary offences are added to a prisoner’s correctional file. These files are then considered by the Parole Board of Canada under s. 101 (a) of the CCRA, which in turn may grant or deny parole, in part, on the presence or absence of a serious disciplinary conviction. Procedural breaches therefore directly impact the liberty rights of individuals. Indirectly, “independent” decision makers have the capacity to prolong incarceration.

Sadly, the “independence” of this hiring process also likely exacerbates pre-existing inequities. For example, a prisoner with legal training and literacy skills may appeal a decision in which their rights are breached. In contrast, a prisoner who lacks literacy or who struggles with attention disorders (as many low-income, Indigenous and prisoners of colour do) has little chance of standing up when their rights are violated.

Frankly, this process seems like fodder for any law professor hoping to teach the principles of procedural fairness. As a former law professor himself, I am surprised Justice Minister David Lametti doesn’t take issue with the hiring process.

What creative ideas could solve the problem? How about have anyone except those prosecuting appoint the judge? How about the Department of Public Safety? The Department of Justice? Criminologists? Heck, pull a first-year law student out of any criminal law class and they’d have less of a conflict (and likely more legal training). How about making all disciplinary courts accessible by Zoom to members of the bar?

Everyone knows there are flaws in the correctional system, but when the prosecutor appoints the judge, the flaws have gone one step too far.

Murray Fallis is an articling fellow with John Howard Canada

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