Williams v. Canada (Attorney General), 2006 FC 153

                                                                                                                                   Date: 20060213

                                                                                                                              Docket: T-2265-04

                                                                                                                          Citation: 2006 FC 153

BETWEEN:

                                                           ROBERT WILLIAMS

                                                                                                                                            Applicant

                                                                         - and -

                                            ATTORNEY GENERAL FOR CANADA

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

PINARD J.:

[1]         This is an application for judicial review of a November 25, 2004 Disciplinary Board conviction under paragraph 40(j) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the "CCRA") for possession of an unauthorized item.

[2]         Robert Williams (the "applicant") is incarcerated at Mission Institution, a medium security federal penitentiary.

[3]         On October 15, 2004, Corrections Officers Thandi and Alexandre found a cell phone stuffed in a sock under a pillow on the top bunk of the applicant's cell. The applicant was "double-bunked" with inmate Wucherer in cell number N6, and the top bunk was assigned to the applicant.

[4]         Shortly after the search, another inmate, Patrick Groleau, approached Officer Alexandre and explained to her that he had left the phone in the applicant's bed.

[5]         According to the applicant, Mr. Groleau later approached him and told him that he had placed the cell phone on his bunk when he had come over to play video games on the applicant's game machine.

[6]         On October 19, 2004, the applicant was charged under paragraph 40(j) of the CCRA for possession of an unauthorized item.

[7]         The relevant provisions of the CCRA are as follows:

   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.

   39. Inmates shall not be disciplined otherwise than in accordance with sections 40 to 44 and the regulations.

   40. An inmate commits a disciplinary offence who

[. . .]

(i) is in possession of, or deals in, contraband;

(j) without prior authorization, is in possession of, or deals in, an item that is not authorized by a Commissioner's Directive or by a written order of the institutional head;

[. . .]

   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.

   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.

   39. Seuls les articles 40 à 44 et les règlements sont à prendre en compte en matière de discipline.

   40. Est coupable d'une infraction disciplinaire le détenu qui :

[. . .]

i) est en possession d'un objet interdit ou en fait le trafic;

j) sans autorisation préalable, a en sa possession un objet en violation des directives du commissaire ou de l'ordre écrit du directeur du pénitencier ou en fait le trafic;

[. . .]

   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.

   (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.

   (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.

   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.

   43. (1) A charge of a disciplinary offence shall be dealt with in accordance with the prescribed procedure, including a hearing conducted in the prescribed manner.

   (2) A hearing mentioned in subsection (1) shall be conducted with the inmate present unless

(a) the inmate is voluntarily absent;

(b) the person conducting the hearing believes on reasonable grounds that the inmate's presence would jeopardize the safety of any person present at the hearing; or

(c) the inmate seriously disrupts the hearing.

   (3) The person conducting the hearing shall not find the inmate guilty unless satisfied beyond a reasonable doubt, based on the evidence presented at the hearing, that the inmate committed the disciplinary offence in question.

   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.

   43. (1) L'accusation d'infraction disciplinaire est instruite conformément à la procédure réglementaire et doit notamment faire l'objet d'une audition conforme aux règlements.

   (2) L'audition a lieu en présence du détenu sauf dans les cas suivants :

a) celui-ci décide de ne pas y assister;

b) la personne chargée de l'audition croit, pour des motifs raisonnables, que sa présence mettrait en danger la sécurité de quiconque y assiste;

c) celui-ci en perturbe gravement le déroulement.

   (3) La personne chargée de l'audition ne peut prononcer la culpabilité que si elle est convaincue hors de tout doute raisonnable, sur la foi de la preuve présentée, que le détenu a bien commis l'infraction reprochée.

[8]         A disciplinary hearing was held on November 25, 2004, and the Chairperson found the applicant guilty under paragraph 40(j) of the CCRA. The Chairperson found the testimony of the applicant's witness, Mr. Groleau, who had attempted to take responsibility for the cell phone to be incredible because he could not describe the phone or the sock accurately to officer Alexandre when he approached her, could not describe all the contents of the sock, and had no intelligible explanation as to why he put it under the applicant's pillow. The applicant testified that he did not know that the cell phone was in his bed, but the Chairperson found this suggestion to be "outrageous". The Chairperson also stated that with regard to the testimony of the applicant that was in conflict with the evidence of the officer, he preferred the latter. The Chairperson sentenced the applicant to ten days of segregation, which sentence was suspended for 90 days.

[9]         The applicant submits that the Chairperson committed a number of errors in his decision including misinterpreting the elements required to make out the offence, failing to make a finding of credibility with respect to the applicant's evidence, failing to consider the evidence in its entirety, and misapplying the legal tests to be applied in determining proof beyond a reasonable doubt.

[10]       In order for the Chairperson to convict the applicant of the disciplinary offence of being in possession of an unauthorized item, the Chairperson must find that the applicant had control and knowledge of the unauthorized item in question beyond a reasonable doubt (subsection 43(3) of the CCRA, Taylor v. Canada (Attorney General), [2004] F.C.J. No. 1851 (QL), and Ryan v. William Head Institution, [1997] F.C.J. No. 1290 (T.D.) (QL)).

[11]       The applicant suggests that there was insufficient evidence to find that he had the necessary knowledge and control required for a conviction in this case. He submits that the case against him is made up entirely of circumstantial evidence and that there were other reasonable inferences that could be drawn from the proven facts besides him having knowledge of the cell phone, and that therefore he could not be found guilty beyond a reasonable doubt.

[12]       However, in cases where there is no direct evidence that an accused has knowledge that an unauthorized item exists, the decision maker may look to all of the relevant and surrounding facts in order to determine if there is sufficient evidence to support the inference that an accused had knowledge. In Ryan v. William Head Institution, supra, at paragraph 7, this Court considered the surrounding facts and determined that there was sufficient evidence to support the inference that the accused had knowledge.

[13]       In Bailey v. Canada (Attorney General), 2001 FCT 935, my colleague Justice François Lemieux refers to Her Majesty the Queen v. Yebes, [1987] 2 S.C.R. 168, at pages 188 and 189, wherein Mr. Justice MacIntyre enunciated the following principle:

It may then be concluded that where it is shown that a crime has been committed and the incriminating evidence against the accused is primarily evidence of opportunity, the guilt of the accused is not the only rational inference which can be drawn unless the accused had exclusive opportunity. In a case, however, where evidence of opportunity is accompanied by other inculpatory evidence, something less than exclusive opportunity may suffice. . . .

[14]       In McLarty v. Canada, [1997] F.C.J. No. 808 (T.D.) (QL), Justice Danielle Tremblay-Lamer referred to the case of R. v. To (W.H.) (1992), 16 B.C.A.C. 223, where it was stated that:

. . . it is legitimate to infer knowledge from mere physical possession in proper circumstances which inference will be displaced if an explanation is offered which raises a reasonable doubt or if, as in Hess, other inferences consistent with innocence may be drawn from all of the proven circumstances. . . .

[15]       In McLarty, at paragraph 12, Justice Tremblay-Lamer found the Chairperson's inference patently unreasonable because it was plausible that the shank had remained in the fan for an extended period of time. Also, a screwdriver was necessary to access the shank within the fan and no screwdriver was found in his cell.

[16]       In the present case, the phone and charger were located in a sock under the applicant's pillow, and therefore McLarty is easily distinguishable.

[17]       It is my opinion that considering the presence of the phone under the applicant's pillow, in the applicant's cell, in a readily accessible location coupled with the Chairperson's rejection of Mr. Groleau's testimony, the Chairperson reasonably concluded guilt beyond a reasonable doubt. As the Chairperson concluded:

So we're left with if -- or at least [inaudible] if you got this phone and you put it under the pillow, and to think that Mr. Williams wouldn't have known about it was just outrageous. In my view, this -- and in my opinion, this charge has been made out. . . .

[18]       The applicant submits that it was incumbent upon the Chairperson to first make a finding with respect to the credibility of the applicant, and then to determine, whether, based on all of the evidence, knowledge and control were made out. The applicant relies on Borglund v. Canada, [2003] F.C.J. No. 1215 (T.D.) (QL), for this proposition. According to the applicant, the Chairperson made no such finding of credibility.

[19]       Without determining whether or not the applicant is correct in this submission that a finding of credibility need be made, it is clear from the record that the Chairperson did make a finding of credibility. The Chairperson stated:

I found -- I found your evidence, Mr. Groleau, to be preposterous. I think you're lying. You're not telling me the truth, and I don't believe a word you say.

So we're left with if -- or at least [inaudible] if you got this phone and you put it under the pillow, and to think that Mr. Williams wouldn't have known about it was just outrageous. In my view, this -- and in my opinion, this charge has been made out. Mr. Groleau, you have -- you're -- I suppose the easiest way I can say this is you did [inaudible] from the truth, and I don't accept your evidence, or your evidence or the evidence of Mr. Williams that is in conflict with the evidence of the officer. I prefer the evidence of the officers.

[20]       The Chairperson clearly stated ". . . and to think that Mr. Williams wouldn't have known about it was just outrageous." The Chairperson thereby clearly and properly rejected the applicant's evidence on this point.

[21]       The applicant also submits that the Chairperson erred in not explicitly stating that he found the applicant to have knowledge and control of the cell phone. Although not explicitly stated, in finding that the case had been made out, the Chairperson implicitly found that the applicant had knowledge and control of the cell phone.

[22]       With regard to the applicant's submission that the Chairperson did not apply the correct legal test of reasonable doubt, it is true that the Chairperson did not mention this test during his reasons, however during the applicant's submissions, as the applicant's counsel was explaining what the 'beyond a reasonable doubt' test entailed, the Chairperson interrupted to assure counsel that he understood the test. It is my opinion that though the Chairperson did not expressly state the test he was using during his reasons, he not only came to the correct decision, but was also using the correct test in arriving at that decision.

[23]       It is my opinion that the Chairperson has made no unreasonable findings of fact and drawn no unreasonable inferences, and had evidence upon which to find beyond a reasonable doubt that the applicant was guilty of the charge of possession of an unauthorized item. Therefore, there are no grounds to intervene in this case.

[24]       Consequently, the application for judicial review is dismissed, with costs.

       JUDGE

OTTAWA, ONTARIO

February 13, 2006

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       T-2265-04

STYLE OF CAUSE:                                      ROBERT WILLIAMS v. ATTORNEY GENERAL FOR CANADA

PLACE OF HEARING:                                  Vancouver, British Columbia

DATE OF HEARING:                                    January 12, 2006

REASONS FOR ORDER BY:                      Pinard J.

DATED:                                                          February 13, 2006

APPEARANCES:

Mark Redgwell                                               FOR THE APPLICANT

Edward Burnet                                               FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mark Redgwell                                               FOR THE APPLICANT

Vancouver, British Columbia

John H. Sims, Q.C.                                        FOR THE RESPONDENT

Deputy Attorney General of Canada

                                                                                                                                Date: 20060213

                                                                                                                           Docket: T-2265-04

Ottawa, Ontario, this 13^th day of February 2006

PRESENT: THE HONOURABLE MR. JUSTICE PINARD

BETWEEN:

                                                           ROBERT WILLIAMS

                                                                                                                                          Applicant

                                                                        - and -

                                           ATTORNEY GENERAL FOR CANADA

                                                                                                                                     Respondent

                                                                       ORDER

The application for judicial review of a November 25, 2004 Disciplinary Board conviction under paragraph 40(j) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, for possession of an unauthorized item is dismissed, with costs.

       JUDGE