STATEMENT OF POLICY This policy sets out the philosophy, options and process for the discipline of inmates, including informal methods of correcting behaviour and formal hearings and disposition of institutional violations. AUTHORITIES Canadian Charter of Rights and Freedoms Yukon Human Rights Act Corrections Act 2009: sections 26 28 Corrections Act and Regulations 2009: sections 22, 24 34 DEFINITIONS Serious matter (serious breach): a disciplinary matter that, considering its nature and circumstances, is found to be a serious one by a Person In Charge acting under section 26(3) of the Regulations. Minor matter (minor breach): a disciplinary matter that, considering its nature and circumstances, is found to be a minor one by a Person In Charge acting under section 26(3) of the Regulations. Procedural fairness: the principles of procedural fairness apply to administrative decisionmaking processes such as disciplinary hearings and include the following rights: a) the right to adequate notice of the offence and the particulars of the alleged offence; b) the right to make full answer and response to the allegations; c) the right to be present at the hearing and to call and question witnesses; d) the right to be represented; e) the right to a be heard by an unbiased decision-maker; f) the right to a decision in writing, with reasons given; g) the right to review the decision. Hearing Adjudicator: the person assigned to preside over a disciplinary hearing either as a person appointed by the Person In Charge for the hearing of a minor matter or as an adjudicator appointed under the Act for the hearing of serious matters. Lawyer: a lawyer certified to practice law in the Yukon Territory.
PROVISIONS Purpose and Progression of Discipline 1. Inmate discipline is a mechanism for maintaining order in an institution through a range of informal and formal responses. 2. The Person In Charge and officers will ensure through the following means that all inmates are made aware of the correctional centre s rules, the consequences of a breach and the processes in place for dealing with breaches: 2.1. written materials, handbooks and orientation videos; 2.2. individual instruction on admission to the unit. Informal Disciplinary Process 3. Staff must exhaust all less onerous and informal means of correcting behaviour before commencing the formal disciplinary process. 4. If an officer observes or becomes aware of a breach of the rules, he or she will: 4.1. stop the breach from occurring and inform the inmate of the rule that was breached, ensuring that the inmate is aware of the breach and understands the consequences; 4.2. give the inmate an opportunity to stop the breach from occurring or give the inmate an opportunity to correct the breach if the person aggrieved by the breach consents; 4.3. with the agreement of the Officer in Charge, the officer may pursue one of the following courses of action as an informal means of discipline: 4.3.1. oral intervention: the officer will tell the inmate that non-compliance may result in a written warning, failure to earn remission or formal disciplinary action and will note this instruction in the progress log; 4.3.2. cell confinement: the officer will direct that the inmate be confined within the living unit for a maximum of two (2) hours; 4.3.3. a written or oral apology to the victim;
4.3.4. a written warning provided to the inmate with a copy placed on the inmate s file: 4.3.4.1 written warnings will be issued in a form prescribed by the Officer in Charge and must specify the unacceptable or prohibited behaviour(s), specific details about the occurrence, the improved behaviour required and the consequences of non-compliance; 4.3.4.2 before completing a written warning, staff are responsible for checking the inmate s file to see whether previous and similar breaches have been recorded; 4.3.4.3 the inmate must read the written warning (or have it read to him or her) and sign it. If the inmate refuses to sign, the staff member will write "refused to sign" on the report; 4.3.4.4 The warning must be signed by both the staff member and the Officer in Charge. 4.4. the process described in 4.3 must not be used for serious breaches where the application of informal sanctions is neither practical nor appropriate. First Nations elders as resources 5. At the earliest point in an informal disciplinary situation, where it is reasonable and practical to do so, the officer, in consultation with the Officer in Charge, will give full consideration to seeking the assistance of an elder in finding or participating in a resolution. Formal disciplinary process 6. Section 26(2) of the Regulations provides that the formal disciplinary process be commenced as soon as is practicable by the officer who observed or discovered the breach and completed the Inmate Offence Report. 7. The officer must complete the Inmate Offence Report in accordance with section 26(2) of the Regulations including: 7.1. full identification information of the inmate alleged to have committed the breach; 7.2. time, date and place of the breach; 7.3. specification of the rule breached (i.e. either from s. 25 Corrections Act and Regulations, or the Correctional Centre s Living Unit Rules);
7.4. full particulars of all facts that establish that the breach was committed by the named inmate; 7.5. in the case of an alleged breach of the Living Unit Rules, the Regulations should be specified first if there is a section 25 subsection that adequately describes the breach; 7.6. identification of any other staff or inmate witnesses unless doing so would place an informant at serious and immediate risk. 8. The officer will forward the completed Inmate Offence Report and all related reports to the Officer in Charge. 9. The Officer in Charge will ensure the charge package is accurate and complete before submitting it to the Person in Charge. 10. The completed Inmate Offence Report will be approved by the Person In Charge. 11. The Person In Charge must consider the nature and circumstances of the alleged breach and determine whether the matter is to proceed as a minor or serious matter. He or she will then sign the Inmate Offence Report, indicating approval, stating on the form whether the matter is minor or serious and setting a proposed hearing date and time. This determination must be included in the written notice to the inmate. 12. The Inmate Offence Report and all disclosure documents will be served on the inmate by an officer as soon as is practicable under the provisions of section 27 of the Regulations. 13. The officer completes the service section of both the inmate s copy and the retained copy of the Inmate Offence Reports, indicating the time and date of service, the number of attached officer reports and that the inmate was advised verbally of their right to lawyer. 14. The officer is to note the time and date of service and any relevant notations in the inmate s progress log. Assignment of Hearing Adjudicator 15. The Person In Charge or designate will serve as Hearing Adjudicator on all hearings of minor breaches unless he or she has been personally involved or has knowledge of the incident that is the subject of the breach allegation. 16. The Person In Charge will appoint an alternate as Hearing Adjudicator if he or she is disqualified due to personal knowledge or involvement in the matter. 17. If the allegation involves a serious breach, the Person In Charge will ensure that the hearing is referred to a Hearing Adjudicator appointed by the Assistant Deputy Minister under s. 26 of the Act.
18. Hearings will be scheduled within 96 hours of the decision to convene a disciplinary hearing under the provisions of section 30(1) of the Regulations. 19. The hearing will be conducted in a place and manner that reflects the importance and dignity accorded to the disciplinary process while maintaining the safety and security of the correctional centre. 20. The complete hearing, including any adjournments will be recorded through an audio or video device, and stored in a manner approved by the Person in Charge. Role of Hearing Coordinator 21. The Person In Charge will assign two staff members (one primary and an alternate) as Hearing Coordinators. 22. The roles and responsibilities of the Hearing Coordinator are to: 22.1. organize a projected hearing schedule for the upcoming month - normally for Mondays, Thursdays and Fridays - to distribute the schedule to adjudicators by the last Monday the prior month; 22.2. find another adjudicator if the scheduled adjudicator cannot attend the hearing; 22.3. contact the Hearing Adjudicator the day before the hearing date if there are no matters scheduled for hearings the next day; 22.4. receive and authorize monthly Hearing Adjudicator invoices and send them to Community Justice and Public Safety for payment; 22.5. set up the hearing by organizing files and preparing the recording computer; 22.6. assist in hearings by: 22.6.1. organizing inmate attendance at hearings, unless they are precluded from attending for one of the reasons set out in section 30(2) or the Regulations; 22.6.2. ensuring that escorting officers are present during the hearing; 22.6.3. organizing witnesses for hearings; 22.6.4. reading out the charges, and where the officer who wrote the report or charge sheet, or other investigating officer, is not available, reading the reports and circumstances into the record; 22.6.5. acting as a resource for the Adjudicator when additional information is requested on correctional practices, policies, schedules and available programs for inmates;
Status of the Accused 22.6.6. following a guilty finding, providing information for the current incarceration for the Adjudicator from the inmate s progress log of their performance, behavior, disciplinary history and participation in work or rehabilitative programs; 22.6.7. entering hearing data (offender, date, name of hearing adjudicator) into the Hearing Adjudicator Database; 22.6.8. ensuring that the results of disciplinary hearings are documented and properly distributed and that imposed dispositions are being applied as intended. For examples, ensuring the unit is aware when an inmate has extra duties assigned, or where relocation is required to serve a segregation penalty. 23. Pending a disciplinary hearing an inmate may be held in a Segregation cell only if his or her continued presence in the living unit would pose an unreasonable risk to a person or the security of the correctional centre or would compromise the conduct of the hearing. 24. Segregated custody pending a hearing must be reviewed as required by section 28(2) and (3) of the Regulations each 24 hours until the hearing is held. Conduct of a hearing 25. The hearing will be conducted in the following manner: 25.1. the Hearing Adjudicator will introduce himself or herself and indicate that the matter is a disciplinary hearing conducted under the Corrections Act and Regulations; 25.2. the Hearing Adjudicator will ask the inmate: 25.2.1. to identify himself or herself; 25.2.2. if he or she has received a copy of the violation report; 25.2.3. if he or she understands the alleged breach; 25.2.4. if he or she has had the opportunity to contact and consult a lawyer; 25.2.5. if he or she wishes to have a lawyer present if one is not present; 25.2.6. if he or she wishes to have a lawyer but does not yet have one the Hearing Adjudicator will provide him or her with an adjournment to allow reasonable time to consult with counsel; 25.2.7. the Hearing Adjudicator will advise the inmate that the Corrections Branch does not supply or pay for lawyers at disciplinary hearings;
25.2.8. if an inmate request that another inmate represent him or her during a hearing, the Hearing Adjudicator will advise the inmate that this is not permitted; 25.2.9. the Hearing Adjudicator will ask the inmate if he or she pleads Guilty or Not Guilty to the allegation. 25.3. a refusal to enter a plea will be recorded by the Hearing Adjudicator and the hearing will proceed in the manner of a Not Guilty plea; 25.4. if the Hearing Adjudicator has any reasonable belief that the inmate does not have the capacity to understand the allegation or to participate in the process, through mental illness or other cause, the adjudicator will adjourn the matter and refer the inmate to a health care professional until the issue of capacity is resolved; 25.5. in consultation with the Hearing Adjudicator and health care professionals, the Person In Charge may direct that alternative, healing-based (non-disciplinary) process for addressing inmate behaviour be used with respect to inmates with FASD, mental illnesses or other disorders; 25.6. the Hearing Adjudicator will ensure that the hearing record indicates that the process in 25.5 is not the same mechanism as Alternate Measures, which apply to inmates who have the capacity to understand the disciplinary process and the nature of a breach and who have accepted responsibility for it. Process: Not Guilty plea 26. When an inmate pleads Not Guilty, the Hearing Adjudicator will hear the evidence of the officer who filed the allegation and the evidence of the inmate and those witnesses approved by the Adjudicator to provide testimony. 27. In some cases, where the charging officer is unavailable, the Person in Charge may authorize an investigating officer to review all relevant matters and appear at the disciplinary hearing in place of the charging officer. 28. The Hearing Adjudicator has the authority to screen requests for witnesses, and may exclude hearing from any proposed witness where their presence is not essential to maintaining fundamental fairness of the process or where the testimony is not expected to be relevant to the matter (e.g. an accused wishes to call character references ). 29. An inmate or their lawyer may cross-examine the officer who filed the allegation or gives evidence and any other witnesses present at a hearing.
30. The Hearing Adjudicator will consider the testimony of the witnesses, may summon additional witnesses as they see fit, and may examine any other materials or evidence that may assist them to reach a reasonable and fair determination of the matter. Finding and disposition 31. The Hearing Adjudicator will ask the inmate if he or she has anything to say prior to the finding. 32. The Hearing Adjudicator will make and record their finding. A Not Guilty finding will result in the completion of the hearing. 33. If the inmate is found Guilty, the Hearing Adjudicator will ask the inmate if he or she has anything to say before a disposition is passed. 34. The Hearing Adjudicator will hear any submissions on penalty from the inmate or their lawyer, establish whether the inmate is sentenced or remanded, and review the inmate s current disciplinary history, work or behavior reports and any other documents that pertain to the inmate s progress during the current custody. 35. The Hearing Adjudicator will impose one or more of the dispositions that are available in the circumstances and considering the nature of the breach. The available dispositions and their limitations are set out in section 33 of the Regulations. 36. The Hearing Adjudicator must consider imposing a loss of remission in addition to any other disposition if the matter involves a breach set out in section 33 (5) (a e) of the Regulations. Suspensions or reductions of dispositions 37. The Hearing Adjudicator will inform the inmate that he or she can apply for a suspension or reduction of the disposition. 38. The Hearing Adjudicator may suspend or reduce the disposition with or without conditions. 39. The suspension or reduction may be done at the time of the hearing, or after the hearing if an inmate applies to the presiding Hearing Adjudicator for a reduction or suspension of the penalty or corrective measure imposed. 40. Adjudicators will be contacted regarding inmate requests for a reduction or suspension of penalty only when the Adjudicator who imposed the penalty is attending the centre to conduct hearings within the 14 day appeal period.
41. If the responsible Adjudicator is not scheduled within the 14 days following the receipt of the inmate request for a reduction or suspension of penalty, the request will be promptly forwarded to the Person In Charge for a decision. Decision responses will be advised to the inmate in writing; the reasons and any conditions which may apply. Appeal 42. The Hearing Adjudicator advises the inmate that he or she has the right to appeal the matter within 7 days to the Director Investigation and Standards under section 35 of the Regulations. Hearing records 43. As soon as is reasonably possible after the hearing, the Hearing Adjudicator will provide written reasons of both the finding and the disposition to the inmate. 44. The Person In Charge will maintain a record of all disciplinary hearings in a form specified by the Director of Correctional Services. Criminal offences and process 45. When it appears that a serious criminal offence has been committed by an inmate while in custody, the Person In Charge will contact the police with respect to their role and preferred process in an investigation. 46. An incident may constitute both an institutional breach and a criminal offence. Section 28 of the Act provides that such matters may proceed in both disciplinary hearings and criminal courts. 47. The police and Crown Counsel will be consulted prior to a decision to proceed concurrently in serious criminal matters. RELATED POLICIES & DIRECTIVES A 1.3 B 4.2 B 4.6 G 2.7 G 2.11 G 2.12 Yukon First Nations: Collaboration and Focus Segregation Unit Secure Living Unit I Inmate Offence Report Form Application for Review of a Disciplinary Hearing Hearing Adjudicator Checklist