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Disciplinary Court

38.1 (1) The Minister may appoint a person to preside over a disciplinary court.
(2) The remuneration of a person appointed by the Minister under subsection (1) shall be $300 for each day or portion thereof that he presides over a disciplinary court and $75 per hour up to a maximum of $300 per day for the following other duties that he is required to perform, namely, [SOR/86-963]
(a)	participation in information sessions,
(b)	participation in orientation and training sessions,
(c)	participation in consultation sessions with staff members, union members or inmates, and
(d)	appearance before a court in his capacity as president of a disciplinary court in order to reply to proceedings resulting from the discharge of his duties, plus travelling expenses in accordance with the Treasury Board travel directive. [SOR/85-640]
(3) Where a hearing is conducted by a person appointed by the Minister under subsection (1), the institutional head shall designate one or two officers of the Service with major responsibilities within the institution, who had no direct involvement in the incident giving rise to the hearing, to assist that person during the hearing. [SOR/85-640]
(4) The officers designated pursuant to subsection (3) shall
(a)	provide any details or documents requested by the person appointed by the Minister under subsection (1), and
(b)	during the deliberations on the imposition of a punishment, advise the person appointed by the Minister when requested to do so on the most appropriate punishment having regard to administrative constraints and the involvement of the inmate in the various institutional programs,
but the officers shall not otherwise intervene during the hearing unless the person appointed by the Minister requests or authorizes them to do so. [SOR/85-640] [SOR/81-940; SO R/85-640]
Judicial Consideration -
See Editorial Note re independent chairpersons' decisions on the right to counsel and the Independence or impartiality of such chairman annotated under s.39, infra.
Armstrong v The Queen and Disciplinary Court Chairman of Warkworth Institution - Unreported, May 1, 1989, No. T-562-89 (FCTD)
	- The court agreed with Armstrong's counsel that the ICP's failure to give Armstrong the opportunity to make submissions prior to imposing punishment was a breach of duty on the part of the ICP to act fairly.
	The court quashed the punishment given to Armstrong and ordered that Armstrong be brought before the ICP to be informed of the nature of the consultations that took place between the ICP and the representatives of the Institution, and to give Armstrong the opportunity to make submissions with regard to his punishment.
Ambrose v Timms - Unreported, January 6,1989, No. T-2210-88 (FCTD)
	- At the conclusion of the disciplinary court hearing the applicant and his counsel were asked to leave the room while the Chairperson consulted with the institution's advisor. When they returned to the room they were not informed of the content of the deliberations.
	The court quashed the decision because the failure to provide the accused and his counsel with the opportunity to respond to the consultations falls short of the required standard of fairness.
Teneycke v Matsqui Institution Disciplinary Court - (1990) 9 WCB (2d) 356 (FCTD)
	- The applicant's disciplinary court conviction was quashed because the Chairperson took a view of the scene and gathered evidence, without informing the inmate or his counsel. The court said that: 1) except where the parties consent, views are only to be conducted to assist the adjudicator in understanding the evidence; 2) views must be taken with the parties present unless they waive that right; and 3) an adjudicator is never entitled to actively gather evidence or to decide matters on the basis of his own observation of material facts which have not been established in evidence. The applicant need not show any prejudice. By taking measurements in the cell and causing the furniture to be moved about the Chairman automatically lost jurisdiction.
Vilon v Canada - (1989) 7 WCB (2d) 415 (FCTD)
	- The court dismissed a civil action commenced by an inmate following his conviction in disciplinary court. Vilon said he was unlawfully detained because though he was originally convicted in disciplinary court, his counsel later obtained a suspension of the sentence, the director of the institution ordered that he remain in segregation.
	Denault J held that by agreeing to suspend the punishment previously imposed, the disciplinary court chairman was reviewing his own decision and acting unlawfully in the absence of regulatory authority for such a review. As a result the director of the institution could not have committed any wrong in refusing to follow a decision which the tribunal had no jurisdiction to issue.
Trudel v Canada - (1989) 7 WCB (2d) 128 (FCTD)
	- A disciplinary court chairperson's decision not to allow an inmate to testify on behalf of the accused was held to be reasonable. The witness only claimed to be the owner of some of the contraband the accused was charged with possessing. Calling the witness would have delayed the trying of the disciplinary case, and required the witness to be transferred from another prison where he had been moved.
Hendrickson v Kent Institution Disciplinary Court - (1990) 9 WCB (2d) 13 (FCTD)
	- The applicant argued that the Disciplinary Court Chairperson erred in allowing correctional officers to testify after the inmate had testified. He claimed this was contrary to the procedure set out in the Commissioner's Directives and to the general rule of law that the Crown or plaintiff are not permitted to split their case.
	In dismissing the application Denault J observed that the applicant was given the opportunity to call further witness and declined. The court said that (p6):
		The mere fact that the Respondent, faced with two contradictory versions, decided to further investigate and hear more eye witnesses to the event, does not mean that he failed to comply with the procedural rule stated in paragraph 19 of the Commissioner's Directives. In fact, it rather seems that these witnesses were heard, in reply, after the Applicant gave evidence. This is not illegal.
	For a similar result see Mooring v Kent Institution Disciplinary Court, unreported, December 11,1989, No. T-2220-89 (FCTD).
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