Canadian Prisoners' Right to a Fair and Impartial Disciplinary Proceedings

Marcel Kabundi
2009 Champ pénal/Penal field  
Disciplinary punishment should be examined in a context of co-existing with other forms of enforcing authorities that reconcile disciplinary law and penal law. Massat (2003) claims that there is an increasing trend toward "progressive penalization" in disciplinary law. This leads to the belief that administrative penal law tends to assimilate itself to modern law, or at a minimum, to expand its jurisdiction through the transfer or extension of the legal protection offered to the users of public
more » ... services and the fundamental and conventional principles of penal law to the sphere of discipline. Both authorities embody a common punitive finality that serves to ensure order and maintain cohesion in the institutions and communities (Massat, 2003), hence the theoryincreasingly supported by a doctrinal movement (Dellis, 1987)-of the assimilation of disciplinary and penal law. Consequently, it is appropriate to question whether this emergence of what we call "administrative penal law" should include a transfer of all of the basic legal protection encompassed in the foundation of penal law to prevent double jeopardy, where an inmate is subject to criminal prosecution and a disciplinary hearing for the same actions. Because reality fall short of this ideal, it is appropriate to question the possibility of applying the guiding principles of penal law to disciplinary proceedings in prison and to take into account the courts' position in this matter. 2 At the outset is the notion that the current prison society can be considered as society in its own right, increasingly open and subject to the rule of law and external control. From the totalitarian society it was before the advent of the Canadian Charter of Rights and Canadian Prisoners' Right to a Fair and Impartial Disciplinary Proceedings
doi:10.4000/champpenal.612 fatcat:rlst3r3t6jafhfbjccopvygcbu