Terreault v. Cowansville Penitentiary, 2003 FC 1529

Date: 20031231

Docket: T-156-02

Citation: 2003 FC 1529

Ottawa, Ontario, December 31, 2003

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

FRÉDÉRIC TERREAULT

Applicant

- and -

THE CHAIRPERSON OF THE DISCIPLINARY COURT

OF THE COWANSVILLE PENITENTIARY and

THE ATTORNEY GENERAL OF CANADA

Respondents

REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]        This is an application for judicial review by the applicant pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, from a decision by the independent chairperson of the disciplinary tribunal of the Cowansville Penitentiary (hereinafter "the tribunal") on January 3, 2002. In that decision the tribunal found the applicant guilty of being disrespectful or abusive to a corrections officer and threatening to commit assaults, two disciplinary offences covered by paragraph 40(f) and (h) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (hereinafter "the Act") respectively.

FACTUAL BACKGROUND

[2]        Since June 1996 the applicant has been serving a term of 19 years, 6 months and 3 days in the Cowansville Penitentiary.

[3]        Under Standing Order 565 dated September 19, 2001, the Cowansville Penitentiary prescribed the holding of a standing count in officially counting prisoners. The management of the institution issued a general notice informing inmates that this change would take effect on October 3, 2001.

[4]        On October 8, 2001, the applicant said he was standing in his cell for the standing count at 5:45 p.m. when officer Patrick Généreux looked through the small window in his cell door to count him. The applicant said he sat down and officer Généreux, who remained in front of the cell instead of going on his way, banged on the door and ordered the applicant to get up, which he refused to do. Officer Généreux, who was accompanied for the count by officer Sylvain Campbell, at once told the applicant a report would be made on him for the minor offence of disobeying a legitimate order (paragraph 40(a) of the Act). The applicant replied [TRANSLATION] "you're just a bloody bastard" (according to the offence report; according to the applicant, [TRANSLATION] "a dirty bastard") and indicated that he twice would not get up for the count, as a result of which a serious offence report was submitted against him for being disrespectful or abusive to an officer so as to compromise the latter's authority (paragraph 40(f) of the Act). The applicant was also told that another report would be made on him for the minor offence of disobeying a written rule governing inmates' conduct (paragraph 40(r) of the Act), in this case for delaying the official 5:45 p.m. count. At 5:57, after officers Généreux and Campbell had returned to the applicant's cell to count him again and officer Généreux supposedly provoked him again, the applicant replied [TRANSLATION] "wait, you bloody bastard, when I get out, you won't believe it". These words resulted in a fourth report, this time for the serious offence of threatening to commit assault (paragraph 40(h) of the Act).

[5]        On October 9, 2001, at a meeting with Michel Gagnon, the correctional supervisor of the unit and officer Généreux to determine whether the applicant should be placed in administrative segregation as a result of the events on the previous evening, the latter told supervisor Gagnon [TRANSLATION] "you take his side you goddamn bastard" and officer Généreux [TRANSLATION] "you're nothing but a garbage creep, you're a liar, you set me up". The applicant accordingly was the subject of two minor reports for being disrespectful or abusive toward any person in a manner that is likely to provoke a person to be violent (paragraph 40(g) of the Act).

[6]        On February 5, 2002, the reports for the four minor offences were withdrawn for unreasonable delay and were not the subject of any disciplinary hearing.

[7]        The reports for the two serious offences were the subject of a disciplinary hearing on October 18, October 31 and December 20, 2001. At the first hearing date on October 18, the applicant pleaded not guilty to both offences. He asked that all the disciplinary offences of October 8 and 9 (four minor and two serious offences) be heard by the tribunal concurrently. He also asked for testimony by Suzanne Legault, manager of the wing unit, and Audrey Camiré, psychologist. Finally, he asked that his grievance file be provided to the tribunal. The hearing was accordingly postponed to October 31.

[8]        At the applicant's request the hearing of October 31 was postponed to December 20, because the minor offence reports and the grievance file were not before the tribunal. At the hearing of October 31 the tribunal acknowledged that the four reports for a minor offence should under the Act be heard concurrently with the two serious offence reports.

[9]        The hearing on the merits was held on December 20. The applicant asked for testimony by Suzanne Legault, but this was not possible as she was on long-term sick leave. The minor offence reports and the grievance file were still not available to the tribunal. The applicant repeated that all the offences should be heard at the same time. The tribunal heard the evidence on the two reports for serious offences and agreed to hear the applicant's arguments about the reports for the minor offences and obtain copies of the reports if necessary. The applicant admitted making insulting remarks to officer Généreux. The respondent further argued that the applicant admitted making threats.

[10]      On January 3, 2002, the tribunal made its decision: it found the applicant guilty of both serious offences. It accordingly imposed a fine of $25, which was withdrawn on January 17, 2002, so as not to interfere with the studies the applicant was conducting at his own expense. The applicant was further sentenced to 10 days' detention, suspended for a period of 60 days.

DECISION AT ISSUE

[11]      In its decision of January 3, 2002, the tribunal said it took into account the testimony by officer Généreux and that by the applicant. It concluded that the words were indeed used by the applicant, since both reports mentioned them and the applicant did not deny having said the words. It further stated that although the applicant was right not to accept the way in which the count was done, it was entirely improper and inexcusable for the inmate to use the language he did to the two guards.

POINTS AT ISSUE

[12]      The applicant's points at issue are the following:

            A.        Did the tribunal fail to exercise procedural fairness in the process leading to its decision, and if so, did that failure result in serious injustice to the applicant?

            B.         Did the tribunal commit a patently unreasonable error in assessing the evidence on the threat to commit assaults?

ANALYSIS

            A.        Did the tribunal fail to exercise procedural fairness in the process leading to its decision, and if so, did that failure result in serious injustice to the applicant?

[13]      According to the respondents, the rules governing prison discipline are clearly explained in Hendrickson v. Kent Institution, _1990] F.C.J. No. 19 (T.D.) on line: QL:

The principles governing the penitentiary discipline are to be found in Martineau No. 1 (supra) and No. 2 [Footnote: [1979] 50 CCC (2d) 353 (SCC)]; Re Blanchard and Disciplinary Board of Millhaven Institution [Footnote: [1982] 69 CCC (2d) 171 FCTD]; Re Howard and Presiding Officer of Inmate Disciplinary Court of Stony Mountain Institution [Footnote: [1985] 19 CCC (3d) 195], and may be summarized as follows:

1. A hearing conducted by an independent chairperson of the disciplinary court of an institution is an administrative proceeding and is neither judicial nor quasi-judicial in character.

2. Except to the extent there are statutory provisions or regulations having the force of law to the contrary, there is no requirement to conform to any particular procedure or to abide by the rules of evidence generally applicable to judicial or quasi-judicial tribunals or adversary proceedings.

3. There is an overall duty to act fairly by ensuring that the inquiry is carried out in a fair manner and with due regard to natural justice. The duty to act fairly in a disciplinary court hearing requires that the person be aware of what the allegations are, the evidence and the nature of the evidence against him and be afforded a reasonable opportunity to respond to the evidence and to give his version of the matter.

4. The hearing is not to be conducted as an adversary proceeding but as an inquisitorial one and there is no duty on the person responsible for conducting the hearing to explore every conceivable defence, although there is a duty to conduct a full and fair inquiry or, in other words, examine both sides of the question.

5. It is not up to this Court to review the evidence as a court might do in a case of a judicial tribunal or a review of a decision of a quasi-judicial tribunal, but merely to consider whether there has in fact been a breach of the general duty to act fairly.

6. The judicial discretion in relation with disciplinary matters must be exercised sparingly and a remedy ought to be granted "only in cases of serious injustice" (Martineau No. 2, p. 360). _My emphasis.]

[14]      As to the second rule stated in Hendrickson, supra, it should be noted that in the case at bar subsection 43(1) of the Act and paragraph 31(1)(a) of the Corrections and Conditional Release Regulations, SOR/92-620 (hereinafter "the Regulations") lay down a specific procedure for presenting evidence at hearings on disciplinary offences:

[15]      The sixth rule stated in Hendrickson, supra, is that the Court only intervenes to grant the remedy sought if there has been a serious injustice. This rule was recently affirmed by the Federal Court of Appeal in Ross v. Canada, [2003] F.C.J. No. 1047, on line: QL, and in Pontbriand v. Canada (Attorney General), [2003] F.C.J. No. 1356 on line: QL.

[16]      The applicant, for his part, cited Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, which states that "the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision" (paragraph 23). He also cited Porto Seguro v. Belcam S.A., [1997] 3 S.C.R. 1278, paragraph 29.

[17]      For my part, I adopt the comments by Muldoon J. in Elguindi v. Canada (Minister of Health) (T.D.), [1997] 2 F.C. 247 (T.D.), paragraphs 39, 40, 43. The judge indicated that the rule laid down in Cardinal, supra, was recently somewhat modified in the Supreme Court of Canada's judgment in 1994 in Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, paragraphs 38-39:

Whenever there was a breach of natural justice or procedural fairness, predicated, of course, by the degree of procedural fairness the process is afforded, the matter must be sent back to the tribunal for re-determination. This authority flows from Cardinal, supra, where Mr. Justice Le Dain stated, at page 661:

. . . I find it necessary to affirm that the denial of right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have.

[18]      The exception mentioned in Mobil Oil Canada Ltd. is only valid if the outcome of the case was "hopeless" or "inevitable", that is, the outcome would have been the same whether the breach of procedural fairness was there or not. I adopt the statement by Muldoon J. at paragraph 43 of Elguindi, supra, which indicates the key question:

Because there is a breach of procedural fairness, the respondent must prove beyond a reasonable doubt that the denial of these documents to the applicant would have made no difference on the outcome: it would have been a futile effort in "inevitable" circumstances.

[19]      Accordingly, I will adopt the line of authority resulting from Hendrickson, supra, which holds that the applicant must first show a departure from procedural fairness, and second, the serious injustice caused to him by it, or the tribunal's decision will be upheld. However, at the first stage of the analysis, after concluding there was a breach of procedural fairness, I will consider whether the facts fall within the exception stated in Mobil Oil Canada Ltd., supra, in that the outcome of the case would have been the same even if procedural fairness had been fully observed. If the answer to this question is yes, it will not be necessary to go on to the second part of the test, namely the existence of serious injury.

Infringements of procedural fairness

[20]      I feel that there was clearly an infringement of procedural fairness. Paragraph 31(1)(a) of the Regulations was not observed. That provision reads as follows:

[21]      In the case at bar, the witnesses Legault and Camiré whom the applicant wanted to question were not present at the hearing of December 20, 2001, despite the fact that he had made a formal request for their presence at the hearing of October 18, 2001, and had objected to proceeding without those witnesses on December 20, 2001. Certainly the witness Legault was on long-term sick leave on December 20, 2001, but the tribunal could have adjourned the case instead of proceeding without witnesses.

[22]      Another breach of procedural fairness lay in the fact that evidence which the applicant wished to present, namely his grievance file and the reports on the four minor offences, and which he requested for the hearing, were not forwarded to the tribunal.

[23]      As regards the offence reports, the respondent admitted that the tribunal did not hear the four minor offence reports and the two serious offence reports together. Subsection 30(1) of the Regulations states the following:

Subsection 30(1) of the Regulations deals with procedural fairness as the subsection describes a procedure that is to be followed, it is contained in a section titled "Hearings of Disciplinary Offences" and it is surrounded by provisions which all deal with procedure to be followed leading up to or during the hearing. For that subsection to apply, the inmate's conduct must be included in "a single action, simultaneous actions or a chain of uninterrupted actions". I agree with the respondent as regards distinguishing the acts committed on October 8 and those committed on October 9: I do not see how in the case at bar acts committed on different days can be a chain of uninterrupted actions. In my opinion, temporal proximity is necessary and in the context of disciplinary offences it clearly cannot involve events that occurred on separate days. However, as regards the actions committed on October 8 which gave rise to four reports, it was apparent from the reports that the first three all dealt with actions committed at 5:45 p.m. and the fourth an act committed at 5:57 p.m. The fourth offence was clearly linked to the others, since it was the standing count which prompted the offences at 5:45 p.m. and the return of officers Généreux and Campbell to recount the applicant which gave rise to the offence at 5:57 p.m. Additionally, it should be noted that at the hearing of October 31, 2001, the tribunal itself acknowledged the applicant had a right to a single hearing for all the offence reports. In short, I feel that the four reports of October 8, 2001, should have been heard together and the fact that this was not the case constituted an infringement of procedural fairness.

Inevitable outcome

[24]      According to the test in Mobil Oil Canada Ltd., supra, the Court must determine whether the outcome would have been the same despite this infringement of procedural fairness whether Mss. Legault and Camiré testified or not. I feel that the outcome would in fact have been the same. As the applicant indicated at paragraphs 68 and 69 of his memorandum on fact and law, his purpose in summoning the witnesses Legault and Camiré was to show that he was a professional complainer and, judging from his past, there was nothing in his comments to threaten anyone's safety. This was important to the applicant as, referring to paragraph 264.1(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, he said that threats must contain an objective and subjective component (the wording of the provision includes the word "knowingly"). I do not see anything in the wording of paragraph 40(h) of the Act to indicate that a subjective fear of the threat on the part of the victim is required:

Only the objective aspect of the threat is required. In other words, would a reasonable person who heard [TRANSLATION] "wait you bloody bastard, when I get out, you won't believe it" conclude that this was a threat of an assault? Accordingly, the witnesses' evidence regarding the applicant's past and the subjective aspect of the threat is not relevant and so could not have led the tribunal to any other decision. What could the witnesses Legault and Camiré, who were not even there when the words were used, have said that would have led the tribunal to conclude that the expression [TRANSLATION] "wait you bloody bastard, when I get out, you won't believe it" did not objectively speaking constitute a threat of assault? In my opinion, nothing.

[25]      The fact that the tribunal infringed procedural fairness by not obtaining evidence which the applicant wanted to use, namely his grievance file, has no impact on the tribunal's final conclusion. In its reasons, it said it accepted the applicant's testimony that he had a good grievance record; the tribunal did not question the fact that the applicant was not in the habit of committing offences, but had in the past used the penitentiary's official complaint procedure when he had a grievance.

[26]      As regards the charges concerning the offences which were not all heard together, this infringement of procedural fairness did not have and could not have had any impact on the outcome of the hearing. The applicant testified about these offences and the general background he wished to establish. However, the most important fact was that even if the tribunal had heard all the charges at the same time and had acquitted the applicant for the minor offences, he would still have been found guilty of the serious offences on account of his admission that he used the insulting words and that despite the circumstances they were improper and inexcusable. Moreover, this is what the tribunal itself said in its reasons. In the applicant's submission, observance of his right to a single hearing on all the reports was essential to his defence of provocation. He wanted to show by all the offence reports that he had been made a target by officer Généreux, who was trying to provoke him by any means possible and have him convicted at whatever cost for his language, which was at most rude. We have already seen that only the objective aspect of the threat is relevant and this eliminates the relevance of the provocation defence.

[27]      In short, it is true that the absence of the witnesses Legault and Camiré, the absence of the grievance file and the fact that the four reports of October 8, 2001, were not heard together are infringements of the procedural fairness measures covered in paragraph 31(1)(a) and subsection 30(1) of the Regulations. However, as the outcome of the case would undoubtedly have been the same if those infringements had not occurred, it is not necessary to analyze whether the applicant suffered serious harm and the tribunal's decision will accordingly be upheld. However, I would like to say that, unlike the case at bar where it was clear that observance of the established procedure would not have had any different impact on the tribunal's conclusion, in other cases it is very difficult to anticipate what witnesses would have said, what documents might have shown and what weight the tribunal would have given to these new matters in its overall assessment of the evidence. In this second type of situation, the inevitable outcome exception mentioned in Mobil Oil Canada Ltd., supra, cannot be used and accordingly the analysis must proceed, considering whether the infringement of procedural fairness resulted in serious injury to the person concerned.

Serious harm

[28]      Although in view of the foregoing it is not necessary to address the question of serious harm, I will nevertheless make a comment on this point. The applicant alleged that the presence in his inmate file of a conviction for threatening to commit assault against an officer would cause him significant harm when the time came for his case management team to make evaluations and recommendations regarding decisions on his security rating and parole. At the hearing in this Court, counsel for the respondent herself admitted that convictions for disciplinary offences are one factor which is considered when the time comes to decide whether the inmate should be paroled, and when. In this sense, where the inevitable outcome exception mentioned in Mobil Oil Canada Ltd., supra, cannot be used, a procedural infringement leading to an undeserved conviction may result in serious harm.

            B.        Did the tribunal commit a patently unreasonable error in assessing the evidence on the threat to commit assaults?

[29]      The applicant maintained that the tribunal erred in its assessment of the evidence on the threat to commit assault. He asserted that the testimony of officer Généreux by itself and the applicant's admission that he spoke [TRANSLATION] "bluntly" and had used words he was alleged to have said were not sufficient evidence of the objective and subjective aspects involved in the offence of making a threat.

[30]      The respondent, on the other hand, maintained that the tribunal believed officer Généreux, who testified that he saw the applicant's words as threats. The respondent maintained that it was not unreasonable to believe officer Généreux, in view of the nature and offensiveness of the words. At the same time, objectively speaking, a reasonable person would certainly have given the applicant's words a meaning that allowed the tribunal to find the applicant guilty of the offence alleged.

[31]      Before proceeding to analyze this question, we should note the burden of proof prescribed by subsection 43(3) of the Act:

[32]      Then, as the courts have clearly established in many judgments, the standard of review a court must adopt when intervening in the assessment of facts by the disciplinary court has to be the patently unreasonable standard.

[33]      As discussed in the reply to the first question at issue, only the objective aspect of the threat had to be proven. Consequently, it did not have to analyze the degree of fear felt by officer Généreux or the evidence regarding the applicant's intent in using the words in question. As regards the objective evidence necessary to establish the threat, the tribunal's reasons indicated that it considered both the testimony of officer Généreux and that of the applicant, as well as the content of the offence reports, and came to the conclusion that the words had in fact been used. The transcript of the reasons shows how the tribunal arrived at its conclusion (pages 65-67):

[TRANSLATION]

Now, the reason the inmate is before the Court concerns two offence reports on sections (h) and (f). In this regard, the witness Généreux gave the version he heard from the inmate and the inmate testified. He said he spoke bluntly. He did not agree with the procedure that was used by Mr. Généreux for the count. Mr. Généreux said that when he appeared in front of his cell he asked Mr. Terreault to stand up. Mr. Terreault in his defence disputed this and said he had already seen that he was standing and he only had to look . . . Then, Mr. Terreault did not deny using the words. He said "What I did, I did". The words he used to Mr. Généreux and the other officer Mr. Campbell - on the evidence which was presented, those words were used. This appears in the report and was not denied by Mr. Terreault.

. . . . .

Even if in every respect Mr. Terreault was right not to accept the way that the count was done - I do not say he was right, I do not make any ruling on that - but I conclude that it was completely improper and inexcusable for the inmate to use the words he used to the two guards. [My emphasis.]

The tribunal was in the best position to assess the evidence, it indicated what it relied on in arriving at its conclusion and there is therefore no patently unreasonable error that would require the Court's intervention.

CONCLUSION

[34]      For the reasons indicated above, the judicial review is dismissed. The tribunal's decision dated January 3, 2002, is affirmed.

ORDER

THE COURT ORDERS:

1.         The application for judicial review of the decision of the independent chairperson of the disciplinary tribunal at the Cowansville Penitentiary on January 3, 2002, is dismissed.

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                             T-156-02

STYLE OF CAUSE:                                             Frédéric Terreault v. The Chairperson of Disciplinary Court of Cowansville Institution and The Attorney General of Canada

PLACE OF HEARING:                                       Montréal, Quebec

DATE OF HEARING:                                         November 5, 2003

REASONS [for order or judgment]:       Blanchard J.

DATE OF REASONS:                                         December 31, 2003

APPEARANCES:

Frédéric Terreault                                                    FOR THE APPLICANT

Michelle Lavergne                                                   FOR THE RESPONDENTS

SOLICITORS OF RECORD:

Frédéric Terreault                                                    FOR THE APPLICANT

Morris Rosenberg                                                    FOR THE RESPONDENTS

Deputy Attorney General of Canada

Montréal, Quebec