Docket: T-734-05
Citation:
2005 FC 1688
Montréal, Quebec, December 14, 2005
PRESENT:
THE HONOURABLE MR. JUSTICE HARRINGTON
BETWEEN:
SERGE
EWONDE
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[2]
One of the
correctional officers wrote an offence report in which he reported that the
applicant was in possession of, or dealing in, contraband, which is an offence
under paragraph 40(i) of the Corrections and Conditional Release
Act (hereinafter “the Act”).
|
40. An inmate
commits a disciplinary offence who
|
40. Est
coupable d’une infraction disciplinaire le détenu qui:
|
|
(i) is in possession of, or deals in,
contraband;
|
i) est en possession d’un objet interdit ou en
fait le trafic;
|
[3]
In order
to be able to make a finding of guilt, the chairperson of the disciplinary
hearing must be satisfied beyond a reasonable doubt that the inmate is guilty.
Following such a hearing before Chairperson Paul Maranda, the applicant was
found guilty of the offence and was sentenced to nine days in detention with only
a radio. It is this decision that is under judicial review before this Court.
The facts
[4]
The
applicant points out that prior to this search, he had been placed in
segregation following an altercation with two other inmates on his row. The
applicant contends that it is impossible that he could be guilty of possession
of an illegal substance given that he was not in his cell at that time.
Furthermore, he alleges that the two individuals with whom he had the
altercation could have placed the hashish in his cell.
The standard of review
[5]
Before
deciding on the arguments raised by the applicant, it is necessary to determine
the appropriate standard of review in this case. The applicant alleges that
the Chairperson made a patently unreasonable decision in interpreting the facts
and that he erred in law in determining that he was guilty beyond a reasonable
doubt. In response, the respondent claims that the Court must exercise its
judicial discretion moderately and that the standard of patent unreasonableness
must be applied.
[6]
While
there is a panoply of case law regarding the appropriate standard of review for
a decision by a disciplinary tribunal within a penitentiary, in Knight v.
Canada, 2005 FC 727, [2005] F.C.J. No. 909 (QL), my colleague
Mr. Justice Blais properly stated the appropriate standard of review.
With regard to applying the facts, the standard of review is that of patent
unreasonableness while the standard of reasonableness must be used when
applying the law to the facts. In this case, the application of the law had
been interpreted in light of the facts, which necessarily gives rise to the
application of the reasonableness standard.
Analysis
[7]
In order
to support his position that the Chairperson’s decision was patently
unreasonable, the applicant raised six issues. As the first issue, he claims
that he should be acquitted based only on the fact that there was an inaccuracy
regarding the location designated in the indictment. It is not necessary to
dwell on this argument since the indictment clearly stipulates that the
location of the offence was cell K-110, Mr. Ewonde’s cell. Given that the
designation of the location is very clear and that it satisfies
paragraph 25(1)(a) of the Corrections and Conditional Release
Regulations, this argument is unfounded.
|
25. (1) Notice of a
charge of a disciplinary offence shall
|
25. (1) L’avis
d’accusation d’infraction disciplinaire doit contenir les renseignements
suivants:
|
|
(a)
describe the conduct that is the subject of the charge, including the time,
date and place of the alleged disciplinary offence, and contain a summary of
the evidence to be presented in support of the charge at the hearing; and
|
a) un énoncé
de la conduite qui fait l’objet de l’accusation, y compris la date, l’heure
et le lieu de l’infraction disciplinaire reprochée, et un résumé des éléments
de preuve à l’appui de l’accusation qui seront présentés à l’audition;
|
[8]
As a
second issue, he alleges that he should have been acquitted since there was no
evidence that there were attempts to resolve the matter informally.
Subsection 41(1) of the Act gives an inmate the right to benefit from an
attempt to resolve the matter informally. However, that argument was only
raised in his application for judicial review and had never been raised before
Chairperson Maranda. As cited by Mr. Justice Létourneau in Laplante
v. Canada (Attorney General) (C.A.), 2003 FCA 244, [2003] 4 F.C.
1118; [2003] F.C.J. No. 896 (QL), the applicant who attempts to raise his
right to an informal resolution pursuant to subsection 41(1) of the Act
must raise this right as soon as possible. He must therefore mention it to the
chairperson, and if he chooses not to mention it he waives that right.
|
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.
|
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.
|
[9]
As a third
issue, the applicant alleges that the Chairperson erred in law in considering
two of his disciplinary records. He alleges that
sections 2, 10, 11 and 12 of the Canada Evidence Act have
the effect of preventing those records from being used in order to determine
his guilt. While the applicant is entirely correct to rely on the Canada
Evidence Act in the context of a criminal proceeding, we must not forget
that an administrative tribunal is not governed by the rules of evidence. Mr.
Justice Joyal confirmed this principle in Barnaby v. Canada, [1995]
F.C.J. No. 1541 (QL) at paragraph 8:
Curial respect for an administrative
tribunal's disciplinary decisions in a correctional environment is as high as
for any other tribunal. The tribunal is set up as an internal investigative or
inquisitorial process. The rule of evidence in criminal matters does not apply
to it. The tribunal may admit any evidence which it considers reasonable or
trustworthy.
It is also important to note that it was the applicant’s
counsel who raised his record. The applicant, therefore, cannot then criticize
the tribunal for having noted those facts.
[10]
The
applicant argues, as a fourth issue, that he should have been acquitted since –
even if he is considered to have had an illegal substance in his possession –
he had to have voluntary possession of it, which was not the case. In this
case, it is true that there were unusual circumstances since the applicant was
in fact outside his cell at the time of the search. However, his cell was
locked during those two weeks and it is clear that the Chairperson, in
dismissing the allegation that someone else had placed the envelope in his
cell, had determined that it was a voluntary act.
[11]
The
applicant raises as a fifth issue that the Chairperson erred in law in allowing
the advisor, Mr. Bénard, to testify about certain facts. Specifically, he
alleges that the advisor’s testimony is not admissible since the Chairperson is
relying inter alia, on that testimony to determine his guilt. Once
again, the procedure during a disciplinary hearing of this type is not dictated
by specific rules of evidence. Therefore, there is nothing to prevent the
Chairperson from allowing the advisor to testify. Further, bear in mind that
the advisor has extensive knowledge about what goes on in the Donnacona
Detention Centre and that the applicant’s counsel had the opportunity to
cross-examine him if she thought it necessary.
[12]
The last
issue and the most important argument raised by the applicant involves the
Chairperson’s assessment of the facts and the testimony. The applicant alleges
that the Chairperson did not properly interpret the principle of “beyond a
reasonable doubt”. He points out that for the Chairperson to be able to find
him guilty, he must be satisfied of that fact beyond a reasonable doubt as
provided by subsection 43(3) of the Act.
|
(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.
|
(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.
|
[13]
According
to the applicant, the Chairperson did not properly interpret the test in R. v. W.(D.),
[1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 (QL), in order to assess the
testimony and the concept of “beyond a reasonable doubt”. He contends that
reasonable doubt is tied to the presumption of innocence and that the
Chairperson reversed the burden of proof in stating that he did not believe
him. While the applicant maintains that it was not his place to establish that
it was not he that was in possession of that illegal substance, or the reasons
why anyone would hide it in his cell, the Chairperson states that the inmate
was not credible. He made a reasonable decision.
[14]
In
R. v. W.(D.), supra, there was an issue regarding the judge’s
charge to the jury. In the context of a criminal trial, like in R. v. W.(D.),
the judge must provide instructions to the jury regarding principles of law
including instructions on the principle of “beyond a reasonable doubt”.
However, when a proceeding takes place without a jury, the judge does not have
to state how he is undertaking the analysis of the principles of law. In that
context, the final result must be interpreted in order to analyze whether the
judge in fact properly interpreted a principle of law. In this case, there is
nothing in the result of Chairperson
Maranda’s analysis that indicates that he did not properly interpret or apply
the appropriate test as stated in R. v. W.(D.).
[15]
It
is important not to interpret the Chairperson’s analysis out of context. He
analyzed the applicant’s defence and asked himself whether he could dismiss the
scenario where another individual may have placed the illegal substance in
applicant’s cell. It is clear that the Chairperson had to ask himself the
question and consider all of the scenarios in order to determine whether they
were likely. Further, the Chairperson’s decision was made following a hearing
where all of the evidence was heard and where the applicant had the opportunity
to make his submissions. As stated earlier, by analyzing the facts in this
case, it was neither patently unreasonable nor unreasonable for the Chairperson
to have determined that other inmates would not have had the opportunity to place
the illegal substance in the applicant’s cell, given that the cell was locked
for two weeks. The
Chairperson had the duty to consider the applicant’s credibility in this case,
but it was not on that basis that he made a decision. The Chairperson assessed
the applicant’s credibility in the context of the evidence filed and
determined, beyond a reasonable doubt, that the applicant was guilty. The
Chairperson properly assessed the facts and did not err in applying the test in
R.
v. W.(D.),
supra.
[16]
Based on
the submissions made by the parties, this Court does not believe that the
Chairperson’s decision was patently unreasonable or that he erred in law. The
application for judicial review is therefore dismissed.
ORDER
THE COURT ORDERS that:
1. The application for judicial review be dismissed with costs.
“Sean
Harrington”
Email this Content