[3] On March 23, 2005, a hearing was conducted at the Institution by an independent chairperson ("Independent Chairperson"), appointed pursuant to subsection 24(1) of the Corrections and Conditional Release Regulations ("Regulations"), who found the applicant guilty and imposed a $25 fine.
[4] This proceeding is an application for judicial review of the Independent Chairperson's decision.
FACTUAL BACKGROUND
[5] On October 17, 2004, a correctional officer observed the applicant in another inmate's cell. In his statement prepared that day, the correctional officer wrote:
On the above date and time while conducting a routine range walk, this writer had to ask inmate [expurgated] to remove a cell blocker from his cell window. When the cell blocker was removed this writer observed inmate's DaSilva [...], [expurgated], all to be in inmate [expurgated] They were all standing and appeared to be nervous as though I had just interrupted something. This writer suspect that these above mentioned inmates were participating in some sort of drug activity. A urinalysis is recommended.
(Neither party to this proceeding explained why the Court was presented with an expurgated version of the correctional officer's statement, apparently available to the Independent Chairperson in its unedited form. Absent a statutory provision or an order of the Court, the tribunal record made available to the Court should be in the same form as before the decision-maker.)
[6] One of the principal documents in this proceeding is the Notification to Provide a Urine Sample ("Notification").
[7] On October 22, 2004, two Institutional officers made entries on the Notification.
[8] The first officer to do so was the Institutional urinalysis program co-ordinator. Under section 1 of the Notification, headed "Reason", he explained his notation of "reasonable grounds" in these terms: "On 17 October you were observed in a cell with window blocked with an inmate who has a history of substance abuse. This gives me reasonable grounds to demand a urine sample from you." He also certified that he "authorized[d] the collection of a urine sample based on the reason outlined above."
[9] Here, the urinalysis program co-ordinator was exercising the power of the institutional head, pursuant to subsection 61(1) of the Regulations, to grant "the prior authorization" under paragraph 54(a) of the Act for a demand that an inmate submit to urinalysis.
[10] Under section 2 of the Notification, headed "Reasonable Grounds", the following is stated: "When authorization is obtained, the inmate must be informed that he/she has up to 2 hours to submit any objections concerning the urine sample requirement to the Institutional Head or the Institutional Urinalysis Program Co-ordinator."
[11] Again, on October 22, 2004, a second Institutional officer, a urinalysis officer, entered information on the Notification. Under section 3, headed "Inmate Refusal", he noted that the "Inmate REFUSED to provide sample" [emphasis in original]. In the space provided for "Collector's comments", the urinalysis officer added the following handwritten notation: "Offender refused to accompany this officer to the urinalysis room for the purpose of collecting a urine sample." [Emphasis added.]
[12] Concerning his involvement on October 22, 2004, the urinalysis officer testified at the Institutional hearing as follows:
On October 22, 2004, I was given a reasonable demand [...] to serve to Victor Da Silva. So I bring up the sheets, went down to his cell [...] I explained to him what the reasonable grounds were and asked him if he was willing to provide me with a sample and he said he was not. I then gave him the opportunity to rebut. I told him that it was his right to rebut and asked him if he would like to do so. He rejected that offer. I told him that a failure to come to the task would result in a charge under section 40 of the [Act], and he still refused. [...]
[Emphasis added.]
Here, the urinalysis officer was making the "demand that an inmate submit to urinalysis" contemplated in paragraph 54(a) of the Act. This is the same "demand" envisaged in section 56.
[13] The urinalysis officer also testified that he then "went back to the office and wrote up the charge for a refusal of urinalysis."
[14] Concerning his having declined the "opportunity to rebut", the applicant testified at the Institutional hearing: "Well, to be honest with you, I wasn't really aware of the process, how it works and stuff. And I, I kind of -- a part of me thought it was kind of a waste of time anyway."
[15] Under section 4 of the Notification, headed "Note to Inmate", the urinalysis officer signed to confirm that he delivered the Notification to the applicant.
[16] Under section 5 of the Notification, headed "Inmate Certification/Read Before Signing", and above the spaces provided for "Inmate signature" and "Inmate refused to sign", the form states:
I the undersigned, do hereby declare that I have been informed of the basis upon which this sample is required and understand the consequences of non-compliance with this requirement. I understand that an inmate who fails or refuses to provide a urine sample commits a disciplinary offence under section 40(l) or 40(a) of the Corrections and Conditional Release Act.
[Emphasis added.]
This section of the Notification is signed neither by the applicant nor by the urinalysis officer attesting to the applicant's refusal to sign.
[17] On October 22, 2004, the urinalysis officer typed the following on another form, the Inmate Offence Report and Notification of Charge:
The above named offender did refuse a lawful order to accompany myself to the urinalysis room for the purpose of collecting a urine sample. Offender was informed he would be charged under the [Act] section 40.
[Emphasis added.]
[18] On October 26, 2004, a further correctional official indicated on the same form that a charge was warranted under paragraph 40(a) of the Act as a serious disciplinary charge which by regulation must be heard by an Independent Chairperson.
[19] On March 23, 2005, at the outset of the Institutional hearing, the Independent Chairperson stated: "Mr. Da Silva, we charged you with a urinalysis charge for refusing to provide a urine sample." [Emphasis added.]
[20] The applicant's counsel submitted at the Institutional hearing that "the appropriate charge would have been a charge under Section 40(l) 'Fails or refuses to provide a urine sample when demanded, pursuant to Section 54 or 55'."
[21] In his oral ruling, issued immediately at the end of the Institutional hearing, the Independent Chairperson stated:
[...] Clearly, it is the respectful opinion that the charge was properly categorized as 40 (a) "Disobey a justifiable order of a staff member." Mr. Da Silva took it upon himself to refuse categorically at the outset. He disobeyed the order of [the urinalysis officer]. [...] He is perceived to be upset now, perhaps he's in the position of a Monday, you know, quarterback. In other words, looking upon this with a bit of reflection saying, "Well, maybe I should have filed a rebuttal". Once Mr. Da Silva has not filed a rebuttal, he cannot come back at a later date and say, "Well, there was no reasonable grounds and I am object -- I am objecting to certain aspects of the charge." He was given an opportunity to do so. [...]
[Emphasis added.]
ISSUE
[22] The determinative issue in this application is whether the applicant should have been charged under paragraph 40(l) of the Act instead of paragraph 40(a).
STATUTORY AND REGULATORY PROVISIONS
[23] The purpose of the Institution's disciplinary system is set out in section 38 of the Act:
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38. The purpose of the disciplinary system established by sections 40 to 44 and the regulations is to encourage inmates to conduct themselves in a manner that promotes the good order of the penitentiary, through a process that contributes to the inmates' rehabilitation and successful reintegration into the community.
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38. Le régime disciplinaire établi par les articles 40 à 44 et les règlements vise à encourager chez les détenus un comportement favorisant l'ordre et la bonne marche du pénitencier, tout en contribuant à leur réadaptation et à leur réinsertion sociale.
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[24] The relevant provisions concerning disciplinary offences are the following:
| 40. An inmate commits a disciplinary offence who
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40. Est coupable d'une infraction disciplinaire le détenu qui :
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| (a) disobeys a justifiable order of a staff member;
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a) désobéit à l'ordre légitime d'un agent;
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| [...]
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[...]
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| (k) takes an intoxicant into the inmate's body;
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k) introduit dans son corps une substance intoxicante;
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| (l) fails or refuses to provide a urine sample when demanded pursuant to section 54 or 55;
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l) refuse ou omet de fournir l'échantillon d'urine qui peut être exigé au titre des articles 54 ou 55;
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[...]
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| 41. (1) Where a staff member believes on reasonable grounds that an inmate has committed or is committing a disciplinary offence, the staff member shall take all reasonable steps to resolve the matter informally, where possible.
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41. (1) L'agent qui croit, pour des motifs raisonnables, qu'un détenu commet ou a commis une infraction disciplinaire doit, si les circonstances le permettent, prendre toutes les mesures utiles afin de régler la question de façon informelle.
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| (2) Where an informal resolution is not achieved, the institutional head may, depending on the seriousness of the alleged conduct and any aggravating or mitigating factors, issue a charge of a minor disciplinary offence or a serious disciplinary offence.
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(2) À défaut de règlement informel, le directeur peut porter une accusation d'infraction disciplinaire mineure ou grave, selon la gravité de la faute et l'existence de circonstances atténuantes ou aggravantes.
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| 42. An inmate charged with a disciplinary offence shall be given a written notice of the charge in accordance with the regulations, and the notice must state whether the charge is minor or serious.
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42. Le détenu accusé se voit remettre, conformément aux règlements, un avis d'accusation qui mentionne s'il s'agit d'une infraction disciplinaire mineure ou grave.
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[25] The legislative scheme also sets out the requirements for a demand that an inmate submit to urinalysis:
| 54. Subject to section 56 and subsection 57(1), a staff member may demand that an inmate submit to urinalysis
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54. L'agent peut obliger un détenu à lui fournir un échantillon d'urine dans l'un ou l'autre des cas suivants :
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| (a) where the staff member believes on reasonable grounds that the inmate has committed or is committing the disciplinary offence referred to in paragraph 40(k) and that a urine sample is necessary to provide evidence of the offence, and the staff member obtains the prior authorization of the institutional head;
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a) il a obtenu l'autorisation du directeur et a des motifs raisonnables de croire que le détenu commet ou a commis l'infraction visée à l'alinéa 40k) et qu'un échantillon d'urine est nécessaire afin d'en prouver la perpétration;
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| 56. Where a demand is made of an offender to submit to urinalysis pursuant to section 54 or 55, the person making the demand shall forthwith inform the offender of the basis of the demand and the consequences of non-compliance.
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56. La prise d'échantillon d'urine fait obligatoirement l'objet d'un avis à l'intéressé la justifiant et exposant les conséquences éventuelles d'un refus.
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| 57. (1) An inmate who is required to submit to urinalysis pursuant to paragraph 54(a) shall be given an opportunity to make representations to the institutional head before submitting the urine sample.
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57. (1) Lorsque la prise est faite au titre de l'alinéa 54a), l'intéressé doit, auparavant, avoir la possibilité de présenter ses observations au directeur.
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[26] It is also useful to reproduce the following provisions from the Regulations to understand better the disciplinary scheme and the standard of review to be used concerning the decisions of the independent chairpersons:
| 24. (1) The Minister shall appoint
(a) a person, other than a staff member or an offender, who has knowledge of the administrative decision-making process to be an independent chairperson for the purpose of conducting hearings of serious disciplinary offences;
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24. (1) Le ministre doit nommer :
a) à titre de président indépendant chargé de procéder à l'audition des accusations d'infraction disciplinaire grave, une personne qui connaît le processus de prise de décisions administratives et qui n'est pas un agent ou un délinquant;
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[...]
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| 24. (2) A senior independent chairperson shall
(a) advise and, in conjunction with the Service, train the independent chairpersons in the senior independent chairperson's region;
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24. (2) Le premier président régional doit :
a) conseiller les présidents indépendants de sa région et, de concert avec le Service, voir à leur formation;
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[...]
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| 24. (3) A person appointed pursuant to subsection (1) shall hold office during good behaviour for a period of not more than five years, which period may be renewed by the Minister.
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24. (3) Les personnes nommées conformément au paragraphe (1) occupent leur poste à titre inamovible pour un mandat qui ne dépasse pas cinq ans et qui peut être reconduit par le ministre.
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| 27. (2) A hearing of a serious disciplinary offence shall be conducted by an independent chairperson, except in extraordinary circumstances where the independent chairperson or another independent chairperson is not available within a reasonable period of time, in which case the institutional head may conduct the hearing.
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27. (2) L'audition relative à une infraction disciplinaire grave doit être tenue par un président indépendant sauf que, dans les cas exceptionnels où le président indépendant ne peut tenir l'audition et ne peut être remplacé par un autre président indépendant dans un délai raisonnable, le directeur du pénitencier peut la tenir à sa place.
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| 33. (1) The Service shall ensure that all hearings of disciplinary offences are recorded in such a manner as to make a full review of any hearing possible.
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33. (1) Le Service doit veiller à ce que toutes les auditions disciplinaires soient enregistrées de manière qu'elles puissent faire l'objet d'une révision complète.
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[...]
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| 61. (1) The power of the institutional head, pursuant to section 54 of the Act, to grant prior authorization for urinalysis may be exercised by the urinalysis program co-ordinator.
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61. (1) Le coordonnateur du programme de prises d'échantillons d'urine peut exercer le pouvoir conféré au directeur du pénitencier, aux termes de l'article 54 de la Loi, d'accorder l'autorisation préalable à une prise d'échantillon d'urine.
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STANDARD OF REVIEW
[27] To determine the standard of review applicable to a decision, the Supreme Court of Canada requires a four-point analysis: Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19">2003 SCC 19 and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20">2003 SCC 20.
[28] Concerning the first factor, the Independent Chairperson's decision is neither shielded by a privative clause nor subject to any appellate process. However, judicial review is envisaged in subsection 33(1) of the Regulations and, in any event, is available as of right under the Federal Courts Act.
[29] With respect to expertise, section 24 of the Regulations requires only that the Independent Chairperson be "a person, other than a staff member or an offender, who has knowledge of the administrative decision-making process". A senior independent chairperson shall advise and, in conjunction with the Institution, train independent chairpersons. The Independent Chairperson "shall hold office during goodbehaviour for a period of not more than five years, which period may be renewed by the Minister". There is no evidence concerning the experience of or the number of cases heard by independent chairpersons in general. However, I do take judicial notice that this Independent Chairperson has been a member of the Law Society of Upper Canada since 1984. The cumulative impact of these expertise considerations does not militate in favour of curial deference.
[30] The third factor invites consideration of the purpose of the statutory provision. Here, section 38 of the Act envisages a disciplinary system to promote the good order of the penitentiary while contributing to the inmate's rehabilitation and successful reintegration into the community.
[31] The disciplinary process offers "a range of remedial choices or administrative responses", including a warning or reprimand, a loss of privileges, a fine, performance of extra duties or segregation. The scheme also encourages an informal resolution, where possible; otherwise, the hearing "approximates a conventional judicial paradigm": Dr. Q, above, at paragraph 31-32. The purpose of the legislation does not encourage greater judicial scrutiny.
[32] Finally, the principal issue for determination in this application for judicial review is whether the Independent Chairperson erred in entering a finding of guilt under paragraph 40(a) of the Act when the applicant argued that any charge should have been made under paragraph 40(l). The determination of the appropriate statutory provision can often be a pure question of law. In this proceeding, the issue is whether the Independent Chairperson erred in his appreciation of the evidence in view of the scheme of the Act. This is a question of mixed fact and law.
[33] In the light of this analysis, I conclude that the appropriate standard of review is that of reasonableness: was the Independent Chairperson "clearly wrong" in finding the applicant guilty under paragraph 40(a) of the Act in the light of the legislative scheme and the evidence adduced?
ANALYSIS
[34] The following remarks of Justice Robert Décary, writing for the Federal Court of Appeal in Royer v. Canada(Attorney General),[2003] F.C.J. No. 53 (QL), 2003 FCA 25, are instructive:
¶ 13 In short, where an inmate does not leave the institution, there is no requirement to submit to urinalysis other than in the three situations identified in section 54.
[...]
¶ 15 Paragraph 40(l) of the Act clearly states that an inmate who "fails or refuses to provide a urine sample when demanded pursuant to section 54 or 55" commits a disciplinary offence. This paragraph does not impose a sanction on an inmate who refuses to provide a urine sample that may be required under any other section of the Act, which suggests that such a provision does not exist.
[...]
¶ 23 [...]
[...] it would be odd if Parliament had intended that the refusal to provide a urine sample demanded under sections 54 or 55 constitutes a particular offence (paragraph 40(l)), but that the Governor in Council, by implication, is permitted to make another type of refusal an offence, not of refusal but of disobedience.
[Emphasis added.]
[35] Counsel for the respondent acknowledged that the "prior authorization" was obtained pursuant to paragraph 54(a) of the Act and subsection 61(1) of the Regulations. Counsel also acknowledged that when the urinalysis officer gave the applicant the "the opportunity to rebut" the reasonable grounds alleged in the Notification, he did so pursuant to subsection 57(1) of the Act, which refers to "[a]n inmate who is required to submit to urinalysis pursuant to paragraph 54(a)".
[36] It is the respondent's contention, however, that the urinalysis officer did not demand that the applicant submit to urinalysis. Rather, the respondent argues, the urinalysis officer simply ordered the applicant to accompany him to the urinalysis room for the purpose of collecting a urine sample. Accordingly, in the respondent's submission, the Independent Chairperson correctly found the applicant guilty under paragraph 40(a) of the Act because the applicant disobeyed the urinalysis officer's order. For the respondent, this "order" must be deemed justifiable because the applicant did not make representations under subsection 57(1). Also, in the view of the respondent, the Independent Chairperson properly concluded that the applicant could not raise the "reasonable grounds" issue at the disciplinary hearing, having chosen not to do so on October 22, 2004.
[37] The factual basis as understood and put forward in the respondent's oral submissions echoes his memorandum of law:
14. [The urinalysis officer] did not ask the Applicant to provide him a urine sample in his cell. [He] asked the Applicant to accompany him to the urinalysis room. The Applicant refused to do so. Had he accompanied [the urinalysis officer] to the urinalysis room, he would have been required to provide a urine sample. ...
[...]
18. Based on the evidence before him, and given the Applicant could only be subject to one disciplinary charge, it was reasonable for the Independent Chairman to conclude that the Applicant disobeyed the justifiable order of [the urinalysis officer] to accompany him to the urinalysis room.
[Emphasis added.]
[38] The respondent's arguments must fail for three reasons. First, on the facts of this case, the respondent's characterization of what took place is not supported by the evidence. The urinalysis officer made three important statements, all in response to the same question at the Institutional hearing, concerning his role in seeking a urinalysis from the applicant:
· "So I ... informed Mr. Da Silva that he was needed to provide a reasonable grounds for urinalysis. I explained to him what the reasonable grounds were and asked him if he was willing to provide me with a sample and he said he was not."
· "I told him it was his right to rebut and asked him if he would like to do so. He rejected that offer."
· "I went back to the office and wrote up the charge for a refusal of urinalysis" [emphasis added].
In addition, the urinalysis officer later testified that the inmate refused "[t]o provide us a vial".
[39] These statements speak to the inmate's refusal to provide a sample in response to a "demand" to do so. I do not equate a "demand" for urinalysis with "a justifiable order" to proceed to the urinalysis room. The two factual situations differ. Also, I am not satisfied that a "demand", within the meaning of sections 54 and 56 of the Act, is synonymous with "a justifiable order", as intended in paragraph 40(a).
[40] In the Notification, the Institutional urinalysis program co-ordinator provided the "prior authorization" prerequisite to a "demand that an inmate submit to urinalysis" under paragraph 54(a) of the Act.
[41] In his admitted role in this incident, the urinalysis officer was "the staff member" who made the "demand" under paragraph 54(a) and "the person making the demand" within the meaning of section 56. Indeed, he proceeded to inform the applicant of "the basis of the demand and the consequences of non-compliance" as required by that section.
[42] Second, the respondent distinguishes between a demand that an inmate submit to urinalysis and an order that an inmate accompany a staff member to the urinalysis room for the purpose of collecting a urine sample. In my view, the respondent is drawing a distinction without a difference: either way, the inmate, by a negative response, "fails or refuses to provide a urine sample when demanded pursuant to section 54" and thereby falls within paragraph 40(l) of the Act.
[43] With respect, in my view, the distinction made by the respondent is without merit. The statements of Justice Décary in Royer, above, at paragraph 17 are applicable whenever a demand for urinalysis is made of an inmate:
It is clear from this description that Parliament, and subsequently the Governor in Council, have taken great pains to put strict limitations on urinalysis. The reason for such caution is obvious. A urine sample is a "search" within the meaning of section 8 of the Canadian Charter of Rights and Freedoms, and in order for a search to be found reasonable, the Supreme Court of Canada has stated, in particular, that it must be authorized by law and that the manner in which the search itself has been carried out must be reasonable [...] Although it is true that in a penitentiary the expectation of privacy is reduced to a minimum [...] it is also true that urinalysis must be authorized by legislation and that Parliament must ensure that it is not unreasonable.
[Citations omitted.]
[44] Third, it was open to the applicant to decline to make representations within the two-hour window provided for in the Institutional documentation. This refusal had no bearing either on the Institution's burden to demonstrate that it had reasonable grounds, or on the applicant's right to dispute the alleged reasonable grounds in subsequent proceedings. The inmate may choose not to exercise the right to "make representations to the institutional head" under subsection 57(1) of the Act. This choice does not relieve the Institution of its burden to demonstrate that it had reasonable grounds to demand a urine sample in the first place.
[45] In the same vein, subsection 41(1) of the Act suggests, albeit in the context of informal resolution, that a staff member must believe on reasonable grounds that an inmate has committed or is committing a disciplinary offence. This issue was not developed by counsel before me. However, in my view, reasonable grounds to believe that an inmate disobeyed a justifiable order to proceed to the urinalysis room for the purpose of collecting a urine sample do not equate with reasonable grounds to demand a urine sample.
[46] According to the section of the Notification that was not completed, "an inmate who fails or refuses to provide a urine sample commits a disciplinary offence under section 40(l) or 40(a) of the [Act]." This statement is problematic. Where an inmate does not leave the institution, there can only be a requirement to submit to urinalysis in accordance with section 54 of the Act: Royer, above, at paragraph 13. Paragraph 40(l) of the Act states that an inmate who "fails or refuses to provide a urine sample when demanded pursuant to section 54" commits a disciplinary offence. Accordingly, in my view, an inmate who fails or refuses to provide a urine sample is properly charged only under paragraph 40(l) of the Act. Paraphrasing Justice Décary's remarks in Royer, above, at paragraph 23, "it would be odd" if Parliament had intended that the refusal to provide a urine sample demanded under section 54 constitutes a particular offence (paragraph 40(l)), but that an institution is permitted to lay a different charge, "not of refusal but of disobedience".
[47] Quite simply, this case is not about an inmate remaining in his cell contrary to a staff member's order, "justifiable" or otherwise. Rather, as repeated by the urinalysis officer in his testimony, this case is about an inmate's "refusal of urinalysis" (paragraph 13 above). This was confirmed by the Independent Chairperson, whose opening words of the hearing were: "... we charged you with a urinalysis charge for refusing to provide a urine sample."
[48] The Independent Chairperson, therefore, was "clearly wrong" in concluding that paragraph 40(a) of the Act was the appropriate provision under which to charge the applicant. His decision cannot withstand "a somewhat probing examination" on the facts in this proceeding. The applicable provision was paragraph 40(l). An order will issue quashing the charge and the attendant fine. If the parties cannot agree on the costs to be paid by the respondent, written submissions shall be served and filed within fourteen days.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed.
2. The applicant's conviction under paragraph 40(a) of the Act and the attendant $25 fine are quashed.
3. The Court remains seized of this proceeding to determine the question of costs, if necessary.
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