I Was a Prison Judge and the Recent Supreme Court of Canada Decision Is Not the Big Win We Needed

An examination of British Columbia’s provincial disciplinary system

Why was I appointed as an independent correctional decision-maker?

In 2021, I was appointed as one of the first four independent decision-makers and presided over disciplinary hearings in the adult custody division within nine of the ten correctional centres in British Columbia (BC). My appointment as an independent and at arm’s-length decision-maker was influenced by the 2015 Trotchie settlement (not publicly available), whereby an inmate, Trotchie with the West Coast Prison Justice Society, sued BC Corrections based on the argument that disciplinary hearings heard by senior correctional officers and assistant deputy wardens were inconsistent with procedural protections under s. 7 life liberty and security of the person of the Charter of Rights and Freedoms. Specifically, Trotchie argued that correctional staff who presided over disciplinary hearings lacked impartiality because they were not independent of the institution laying the charge breach nor from staff members involved in the process.

The four appointed independent decision-makers replaced assistant deputy wardens in the disciplinary hearing process. I was appointed for a two-year term, from 2021 to 2023 (for about 31 months), and presided over more than 892 disciplinary hearings.

What is an independent correctional decision-maker?

As Nelson M. Tsui puts it in his book Serious Court, we were Prison Judges. Within provincial correctional centres in BC, there are rooms designated for disciplinary hearings (prison courtrooms) where a Prison Judge is tasked with determining, based on the evidence, whether an inmate breached a rule under the legislation, the Correction Act Regulation (CAR), and if so, whether to impose a penalty (disposition) and in what form. Under s. 21, the CAR provides a list of inmate breaches (offences), about 28 of them, which range from possession of contraband (which can include a homemade shank or prison brew) to assault (usually on another inmate or correctional staff). The intended purpose of enforcing the prison rules that govern inmate conduct (in the CAR) is to maintain order (i.e., safety, security, management, and operation) in the correctional centres.

If a Prison Judge finds that an inmate breached a rule, then penalties can be imposed (akin to sentencing in a criminal proceeding). The penalties prescribed by the CAR range from a warning to segregation (for a period not longer than 15 days) to loss of earned remission (of not more than 60 days). Segregation is also known as solitary confinement or internally as “the hole,” and loss of earned remission effectively extends an inmate’s sentence of incarceration.

Disciplinary hearings are not open to the public and decisions that Prison Judges render are not publicly available.

What is the John Howard Society of Saskatchewan decision?

Trotchie also challenged the “balance of probabilities” burden of proof—of whether it is more likely than not that an inmate breached a rule under the CAR—and asked the court to consider the more onerous standard of proof “beyond a reasonable doubt” (used in criminal proceedings), which would require an acquittal if there is reasonable doubt as to the inmate’s guilt.

The recent Supreme Court of Canada decision in John Howard Society of Saskatchewan v. Saskatchewan (Attorney General) (2025 SCC 6), rendered on March 14, 2025, heard the burden of proof argument in Saskatchewan’s provincial correctional centres and held that the imposition of segregation and loss of earned remission as penalties for an inmate disciplinary breach on a balance of probabilities—was inconsistent with the right to be presumed innocent until proven guilty, s. 11(d) of the Charter, and the life, liberty and security of the person, s. 7 of the Charter.

The Court declared that the higher threshold of beyond a reasonable doubt is required when an inmate is charged with a breach punishable by segregation or loss of earned remission because they face the possibility of additional imprisonment (i.e., further restricting an inmate’s freedom of movement and human contact and prolonging an inmate’s sentence of incarceration). In this way, the R. v. Shubley (1990 1 SCR 3) decision is no longer good law (no longer considered binding) on the true penal consequences test, which focuses on the potential impact on the person subject to the penalties.

The Court, however, upheld the criminal in nature test in Shubley that disciplinary proceedings are not criminal in nature (i.e., that the proceedings themselves, their purpose and features, are administrative and regulatory in nature).

As a Supreme Court of Canada decision, John Howard Society of Saskatchewan is applicable law in provincial disciplinary proceedings in BC.

Why is the John Howard Society of Saskatchewan decision not the big win we needed for the advancement of inmate rights?

While the recent John Howard Society of Saskatchewan decision may seem like the big win for the advancement of inmate rights in BC, there are too many barriers in practice and on the ground for the decision to make a real difference, at least for now.

For the advancement of inmate rights to be realized in disciplinary hearings in BC, what is ultimately required is an independent proceeding—for BC Corrections to be removed from the process entirely, for three reasons:

1. It is BC Corrections who decides whether a Prison Judge should continue in their role or should be reappointed

There is the ethical pressure to make the right decision and the professional pressure, particularly as a licenced lawyer, but there is also mounting pressure experienced by a Prison Judge in their day to day from correctional centres. Prison Judges are supervised and report to the deputy provincial director of BC Corrections.

Making a decision that is not in the correctional centre’s favour (by acquitting an inmate or imposing a lesser penalty) can lead to an internal informal complaint, whereby senior correctional leadership may review the disciplinary hearing recording to assess the basis of the complaint and then mention their view in a meeting where the Prison Judge is present. Although not officially warned, a Prison Judge is made aware of the correctional centre’s view of their decision. It was not uncommon to later experience animosity in subsequent hearings, making sure the Prison Judge knew they were in disagreement.

The underlying issue with correctional officers' sentiments of unfairness in decisions stemmed almost always from a lack of legal knowledge, particularly with the rule of law and procedural fairness.

2. Correctional Supervisors represent the correctional centres and run the logistics of the hearings while “protecting their own” and institutional interests

A hearing is held with Disciplinary Hearing Coordinators (DHCs) who represent the correctional centres while supporting with the hearing logistics. Their permanent roles are that of correctional supervisors. As correctional supervisors, they manage a team of correctional officers, including charging officers, who bring their allegations of CAR breaches (charges) before a Prison Judge.

During the penalty phase of the hearings (sentencing) DHCs also recommend, in an advisory capacity, the most appropriate penalty. The standard practice of the Prison Judge is to ask the DHC for their recommendation on penalty, and if they agree, then that sentence is imposed. DHCs work part-time or on an as-needed basis (as backfills).

There is an internal code of protecting one’s own and interests related to preserving staff morale (in part, due to the high turnover of correctional officers), but in the hearing, a Prison Judge is reliant on the DHC to provide full disclosure of evidence, the necessary information on correctional centre policy and procedure (which varies by correctional centre), to know and understand the nature of the breach (the elements of an offence), and to present the correctional centre’s position, while at the same time, adhering to the rights of inmates to have fair hearings. DHCs do not have legal training and receive limited training on how to run fair hearings (i.e., procedural fairness).

Having correctional supervisors occupy the role of DHCs undermines the disciplinary hearing process because:

• there are strong institutional pressures for correctional efficiency (“to get the job done” by moving through cases to prevent administrative backlogs)

• when there is conflicting evidence between an inmate and correctional staff, there is often preference for staff evidence (there is a presumption that correctional officers do not lie and suspicions about whether inmates are telling the truth)

• they may have prior knowledge of an inmate’s criminal history from a previous term of incarceration, familiar with their behaviour or “attitude” from their interactions with them, and from reviewing their client logs (i.e., comments made by officers about an inmate that are recorded in the inmate’s institutional file)

• they are aware of their pending criminal matters, which undermines the right to have a fair hearing, the presumption of innocence, and the legal principle that each breach allegation should be assessed separately

The proceedings are further complicated by the prevailing access to justice issue. Most inmates are self-represented—unable to retain (due to a shortage of Legal Aid lawyer) or afford (private) legal counsel. Prisoners’ Legal Services, with limited staffing, is the only clinic that provides free legal representation to inmates in their disciplinary hearings in BC. From 2021 - 2023, out of the 892 disciplinary hearings that I presided over, 31 inmates had legal representation.

3. Correctional centres can undermine a Prison Judge’s decision not to impose segregation or to impose a shorter segregation term

Segregation, including administrative segregation under CAR 24(1), is defined as confinement for 22 hours or more a day without meaningful human contact. In BC, an inmate confined in segregation is entitled to 4 hours of time out of their cell daily (usually time spent to shower, to exercise, to make phone calls).

Under section 24(1) of the CAR, segregation pending a disciplinary hearing can be imposed at the discretion of prison administrators if they believe—on reasonable grounds—that the inmate is (a) likely to endanger themselves or another person, (b) likely to jeopardize the management, operation or security of the correctional centre, or (c) it is necessary to preserve evidence for the disciplinary hearing. Prison administrators, under CAR 24(1), can impose and renew administrative segregation based on “reasonable grounds to believe.” There is no legislative requirement to impose the more onerous beyond a reasonable doubt burden of proof.

There is no authority in the CAR to keep an inmate in segregation based solely on the ground that they are facing a disciplinary breach. However, inmates were often placed in administrative segregation pending their hearings based on internal informal information (i.e., the reporting (charging) officer’s account of the incident, often without review of the evidence, such as the video footage—evidence which may demonstrate whether the inmate, for example, assaulted another person or acted in self-defence). In many cases, an inmate will have spent time in segregation from the charge breach date until their disciplinary hearing.

A Prison Judge can count the time spent in administrative segregation, CAR 24(1), as time served or time toward the penalty for disciplinary (punitive) segregation, CAR 27(1)(d), if segregation is imposed as a penalty. But if the Prison Judge finds that segregation is not the appropriate penalty or the time already spent in segregation exceeds the range imposed (i.e., the inmate was confined in segregation for longer than sentenced if found guilty), then an inmate has spent time in segregation that they can never get back and the administrative practice of segregation effectively becomes the penalty for the breach.

What do we need for the advancement of inmate rights in disciplinary proceedings in BC?

• Prison Judges should fall within a separate branch of government. It should always be that they are rendering decisions absent from institutional pressures for convictions. At a minimum, Prison Judges should not report to senior leadership in BC Corrections

• DHCs should be recruited from the “outside” as independent and at arm’s length from BC Corrections. Ideally, they should have a legal background (or legal education) and be provided with mandatory procedural fairness training. Due process of law can only be fully realized when DHCs have no “stake in the game” and are well-trained in the law. With legal training, “outside” DHCs could also be responsible for ensuring that there is sufficient evidence to justify a charge breach, that the evidence is correctly and appropriately presented, and could question witnesses (relieving the Prison Judge from having to occupy more than their role, as the decider, in the proceeding)

• Decisions to impose or renew CAR 24(1) should be made within an independent process by an unbiased decision-maker to ensure compliance with the law. Although administrative segregation may be justified at the outset, for example, after a violent incident or security threat, the decision to renew CAR 24(1) beyond 24 hours and up until a disciplinary hearing (“until charges are dealt with”) is an arbitrary institutional practice and not a lawful basis for segregation. An independent adjudicator could provide the necessary oversight so that correctional centres demonstrate specific criteria and factual grounds for the confinement. It should always be that segregation is imposed as a last resort, given the well-documented psychological harm on inmates when segregated

DISCLAIMER: The views and opinions expressed in this blog post are solely my own and do not reflect the views or opinions of my former employer, BC Corrections. The contents are based on my personal knowledge and experience working for BC Corrections as an Independent Chairperson, from 2021 - 2023. The contents are intended for general informational purposes only and under no circumstances can be relied upon for legal decision-making. Readers are advised to consult with a lawyer and obtain a written opinion concerning the specifics of their particular situation.