Witnesses denied

Authority Surrey Pretrial Services Centre, Ministry of Public Safety and Solicitor General & Investigation and Standards Office, Ministry of Attorney General
Details

When an inmate in a BC correctional centre is alleged to have breached a rule under the Corrections Act Regulations, he or she has the right to challenge the allegation at a disciplinary hearing process. Jason was confined to the Surrey Pretrial Services Centre when he had an interaction with a correctional officer on his living unit. The interaction was strictly verbal with the correctional officer believing Jason had refused an instruction and had used abusive language towards her. As a result, the officer filed a report alleging Jason had behaved in an insulting and abusive manner and thus breached the regulation. At Jason’s disciplinary hearing, another member of the centre acted as the chairperson who, in this capacity, was tasked with deciding whether Jason had breached the rule and if so, issuing a penalty. Jason did not believe the officer had fairly characterized their interaction and maintained that he had not refused her instructions and had not directed any abusive or insulting language towards her.

Jason told this to the hearing chairperson and explained that there were inmate witnesses to the interaction who could attest to his version of events. The only other evidence of the incident was a video recording that did not include sound, and as such did not provide conclusive evidence as to the validity of the charge of using abusive language. As is often the case between inmates, Jason did not know the full legal names of the witnesses he wanted to call. He was, however, able to identify them by either their first names, a nickname, or by the cells they had been confined to at the time of the incident. Despite providing this information at the hearing, the chairperson concluded that he would be unable to identify the witnesses because Jason did not know their full names and because of the transitory nature of the living unit where the incident occurred. Without calling the witnesses, the chairperson confirmed the breach of the rule and imposed a penalty of a period of time in separate confinement. The record of the breach was also placed on Jason’s inmate file, which forms a record of his behaviour in the centre. Jason believed it was unreasonable for the chairperson to have not attempted to identify the witnesses by the information provided. As such he requested an appeal of the disciplinary hearing decision through the Investigation and Standards Office, a provincial body tasked with Extended Case Summary Office of the Ombudsperson Annual Report 2017/2018 49 CORRECTIONS CASE SUMMARIES assessing such appeals. This office had only just recently overturned another disciplinary hearing decision that Jason had been subject to because the chairperson had denied calling witnesses.

This denial arose from his presumption that witnesses would have been unable to offer any relevant evidence. After reviewing Jason’s new complaint the Investigation and Standards Office concluded that, unlike in his previous hearing where witnesses were denied unfairly, the hearing chairperson this time had provided Jason with a reasonable explanation for why the witnesses could not be called. Once a disciplinary decision is upheld by the Investigation and Standards Office, the only authority capable of overturning the decision is the B.C. Supreme Court. Despite this, Jason believed he had been treated unfairly by both the hearing chairperson and by the inspector from the Investigation and Standards Office who handled his appeal and as such contacted our Office with his concerns. We began our investigation of Jason’s complaint by looking at the rules by which disciplinary hearing chairpersons are tasked with considering evidence provided at a hearing. This stressed that unless definitive evidence existed of an alleged offence, witnesses should be sought and contacted whenever possible to ensure the hearing is conducted in an administratively fair manner. As it appeared to us that there was no definitive evidence of the breach, and as the only evidence provided was that of the charging officer, we attempted to identify the witnesses by the information provided to the hearing chairperson. We were able to positively identify three of the witnesses Jason wanted to call. Through our consultations with the correctional centre, it acknowledged that it was in fact possible at the time of the hearing to have identified the witnesses by the information Jason provided and that the hearing chairperson should have done this. Although the centre was unable to change the results of the disciplinary hearing by the time we entered into consultations, it did commit to providing refresher training to all of its disciplinary hearing chairpersons, and to include curriculum in chairperson training moving forward, stressing the importance of attempting to identify witnesses based on what information is provided by an inmate. While this commitment settled Jason’s complaint to our Office about the Surrey Pretrial Services Centre, we remained concerned as to why the Investigation and Standards Office had not reached the same conclusion as we had. As such we opened a second investigation into whether the Investigation and Standards Office had followed a reasonable process when considering Jason’s disciplinary hearing decision appeal. We shared what we learned from our investigation of the Surrey Pretrial Services Centre with the Investigation and Standards Office.

It did not take long for the Investigation and Standards Office to review its handling of Jason’ appeal and conclude that it should have more thoroughly questioned the chairperson’s decision not to call the witnesses. Like the Surrey Pretrial Services Centre, the Investigation and Standards Office was unable to alter the disciplinary hearing decision at that time. Despite this, it committed to providing refresher training to all inspectors about the importance of assessing whether or not a witness was improperly denied by a hearing chairperson. As both the Surrey Pretrial Services Centre and the Investigation and Standards Office committed to taking action to prevent similar mistakes in the future, we concluded our investigations and provided Jason with a detailed summary of what we had done. This included explanations of the commitments made by both the Surrey Pretrial Services Centre and the Investigation and Standards Office to take action in response to Jason’s experience. We explained to Jason that while the disciplinary hearing could not be changed at this stage, he still had the option of taking the matter to the B.C. Supreme Court. Three months after concluding our investigation we followed up with both the Surrey Pretrial Services Centre and the Investigation and Standards Office to ask about the progress made on their commitments. The Investigation and Standards Office had, by then, provided special training to all of its inspectors and B.C. Corrections had issued notices to all hearing chairpersons across the province. B.C. Corrections further explained that all future hearing chairperson training courses would specifically stress the importance of attempting to identify witnesses based on any information provided by an inmate.

Category Corrections
Type Case Summary
Fiscal Year 2017