Post #270
880 words; 4 minutes to read
By Harpreet Ahuja, lawyer and human rights consultant based in Vancouver. From 2021 to 2023, she was one of the first four external independent decision-makers who presided over disciplinary proceedings in provincial correctional centres in British Columbia when prisoners were accused of wrongdoing inside the institution.
The Correction Act Regulation in British Columbia (B) includes a disciplinary process with the purpose of maintaining the order within provincial correctional centres. Section 21 of the Regulation sets out prison rules, about 28 of them, that inmates are not permitted to breach while in custody. My experience was that the disciplinary process was regularly used to convict prisoners who were in isolation with complex mental health needs, including those involuntarily certified under the Mental Health Act (MHA) and awaiting bedspace at forensic psychiatric facilities. For individuals locked-up and navigating the complexities of their mental health, the disciplinary process often becomes a mechanism of further harm and injustice.
In criminal law, expert evidence is generally required to establish that a prisoner was suffering from “a disease of the mind” and was either incapable of appreciating the nature of the act or was incapable of knowing that the act was wrong when committed. It is unlikely, however, in a disciplinary proceeding that a prisoner can tender expert evidence in the form of a psychiatric report or medical evidence. Most prisoners are self-represented, unable to retain or afford legal counsel. Prisoners’ Legal Services, with limited staffing, is the only clinic that provides free legal representation to prisoners in their disciplinary proceedings in BC. Over a two-year period, out of the 892 cases over which I presided, only 31 prisoners had legal representation. The lack of representation effectively denies to many of the most vulnerable prisoners their right to a fair hearing and to have their health challenges understood by the correctional centre.
No independent medical analysis
Instead of an independent medical report, evidence of a mental disorder or the lack of mental capacity at the time of the alleged prison rule breach will be described by correctional staff who are familiar with the prisoner and their mental health needs. Correctional staff in BC use the Clinical Global Impression-Corrections (CGI-C), a clinical measurement tool adapted for correctional settings for rating the severity of mental disorders. The opinion of correctional staff, however, is not reliable because they are not educated or trained in recognizing or diagnosing mental disorders. A further issue is the lack of impartiality of evidence from staff due to strong institutional pressures for convictions and “to get the job done” by moving through cases to prevent administrative backlogs. For these reasons, the reliance on correctional staff for mental health assessments undermines the foundational legal principle of the right of an accused person to have a fair hearing.
Even if the decider in the disciplinary process relies on correctional staff evidence, the threshold is high for establishing that an inmate was not “criminally responsible” by reason of mental disorder. Evidence that an inmate was involuntarily admitted under section 22 of the Mental Health Act is often insufficient because it cannot be determinative of whether the prisoner had sufficient capacity at the time of the alleged breach. Consequently, when issues of mental disorder or capacity arise, it does not impact guilt or innocence of the charge, but rather is considered as a mitigating factor in the penalty (sentencing) phase of the disciplinary proceeding.
Serious consequences
Once convicted of a prison rule breach, the penalties that can be imposed for a prisoner with complex mental health needs who is already confined in isolation include a warning, segregation, or loss of earned remission (effectively extending the prisoner’s sentence of incarceration). Imposing these penalties is contrary to the corrective function of the disciplinary process, which is to support prisoners in correcting their behaviour. Instead, the process becomes an administrative record-keeping mechanism by which the correctional centres create a record of the prisoner’s conduct, which can, for example, negatively impact their classification status, transfer to a lower security institution, and pending criminal matters.
Conditions of confinement in isolation are very similar to segregation (confinement for 22 hours or more a day without meaningful human contact). Prisoners certified under the MHA and awaiting space at a forensic psychiatric facility, or experiencing suicidal ideation and engaging in self-harm are confined in isolation under medical observation. Section 17 of the Regulation gives the correctional centres authority to confine prisoners separately for 72 hours for medical reasons. Correctional staff in charge can extend the 72 hour period to long term separate confinement for one or more periods of 15 days each. Imposing a concurrent segregation term as a penalty for the prison rule breach reinforces the harmful institutional practice of segregating prisoners with mental disabilities or challenges.
The disciplinary process in jails is meant to be corrective. Yet, convicting prisoners with complex mental health needs in isolation is a form of punishment. When a process designed to support constructive behaviour becomes a tool for punishment, it signals a profound misalignment with the principles of rehabilitation and humane treatment. The in-jail disciplinary process requires independent and external oversight to ensure that it is being used correctly and appropriately. How we treat our most vulnerable speaks volumes about our shared humanity and values.
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