NCJ Number
51308
Date Published
1977
Length
4 pages
Annotation
IT IS ARGUED THAT CANADIAN PENITENTIARY DISCIPLINARY PROCEEDINGS SHOULD BE SUBJECT TO JUDICIAL REVIEW. THE AUSTRALIAN SYSTEM WHICH COMBINES AN OMBUDSMAN WITH VISITING MAGISTRATES IS HELD UP AS A POSSIBLE MODEL.
Abstract
THE POINT OF DEPARTURE FOR THIS DISCUSSION IS A 5-4 DECISION HANDED DOWN BY THE JUDGES OF THE SUPREME COURT OF CANADA ON MARCH 8, 1977, WHICH DENIED THE FEDERAL COURT OF APPEALS THE AUTHORITY TO REVIEW THE DECISION OF AN INTERNAL DISCIPLINARY BOARD IN A CANADIAN PENITENTIARY. IT IS ARGUED THAT WHENEVER A PRISON ADMINISTRATION HAS THE AUTHORITY TO ACT WITHOUT PUBLIC SCRUTINY, THE POSSIBILITY OF TYRANNY EXISTS. A COURT DECISION IN AUSTRALIA IS REVIEWED WHICH HELD THAT WHEN GOVERNORS OF PRISONS EXERCISE DISCIPLINARY POWERS, THEY ARE ACTING ADMINISTRATIVELY, BUT WHEN THEY CALL IN A VISITING TRIBUNAL, THE TRIBUNAL ACTS JUDICIALLY AND CAN BE REVIEWED. CANADIAN COURT DECISIONS DEALING WITH VARIOUS ASPECTS OF THE ADMINISTRATIVE VERSUS JUDICIAL ASPECTS OF PRISON DISCIPLINE ARE REVIEWED. THE FUNDAMENTAL QUESTIONS OF JUSTICE AND POWER OF REVIEW ARE DISCUSSED. IT IS CONCLUDED THAT PRISON ADMINISTRATORS NEED EXECUTIVE POWER TO DEAL WITH EMERGENCY SITUATIONS. HOWEVER, MORE EFFECTIVE CONTROLS ARE NEEDED TO HANDLE THE ROUTINE SITUATIONS THAT RESULT IN QUESTIONABLE JUSTICE DUE TO LACK OF KNOWLEDGE ABOUT RULES OF EVIDENCE, LACK OF PROPER REPRESENTATION FOR THE PRISONER, OR LACK OF RESPECT FOR DUE PROCESS. LEGAL PRECEDENT AND A CHANGE IN LAW MAY BE NECESSARY FOR THIS TO TAKE PLACE. THE AUSTRALIAN SYSTEM, WHICH USES AN OMBUDSMAN TO SCREEN ADMINISTRATIVE DECISIONS AND MAKES CASES SERIOUS ENOUGH FOR 'VISITING MAGISTRATES' AUTOMATICALLY REVIEWABLE, IS DESCRIBED. SOME SUCH REFORM IS URGED FOR CANADA. FOOTNOTES CONTAIN REFERENCES. (GLR)