Date: 20050519
Docket: T-1636-04
Citation: 2005 FC 727
Vancouver, British Columbia, Thursday, the 19th day of May, 2005
Present: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
KEVIN RANDALL KNIGHT
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Independent Chairperson of the Matsqui Institution (the Chairperson) dated August 11, 2004, which convicted Mr. Kevin Randall Knight (the applicant) of a serious disciplinary offence pursuant to section 40(h) of the Corrections and Conditional Release Act, S.C. 1992, c.20 (CCRA or the Act) and imposed a sanction of $25 and 30 days of segregation pursuant to paragraphs 44(1)(d) and 44(1)(f) respectively of the Act.
RELEVANT FACTS
[2] On September 24, 2001, the applicant was sentenced to a 20-year custodial sentence for the offence of manslaughter. On June 22, 2004, while serving his sentence at the Kent Institution, an incident occurred between the applicant and Officer Reimer (the Officer), which resulted in the laying of a charge of threatening another person. The applicant was therefore transferred to the Matsqui Institution two days after the incident.
[3] After receiving a copy of the Inmate Offence Report and Notification of Charge (the Report), a hearing was held on August 11, 2004, at the Matsqui Institution, for a serious disciplinary offence. On that same date, the applicant was convicted of a serious disciplinary offence pursuant to paragraph 40(h) of the Act.
[4] A sanction was imposed of 30 days of segregation as well as a fine of $25, both of which were suspended for a period of 90 days pursuant to paragraph 41(1)(b) of the Corrections and Conditional Release Regulations, SOR/92-620 (the Regulations). On a motion before this Court, both sanctions were stayed on October 22, 2004, pending final disposition of this judicial review.
ISSUES
[5] Did the Independent Chairperson act in a patently unreasonable manner, or in a manner contrary to procedural fairness in finding the applicant guilty of a disciplinary offence under paragraph 40(h) of the CCRA?
ANALYSIS
[6] As the hearings before an Independent Chairperson are neither judicial nor quasi-judicial, but merely administrative proceedings, the standard of review to be applied to all questions of fact is that of patent unreasonableness and those of fact and law is reasonableness simpliciter.
[7] In dealing with an appeal from a Federal Court case concerning a judicial review of an Independent Chairperson's decision, the Federal Court of Appeal stated that:
In the present case, Kelen J. decided that the standard of review with respect to issues of fact was patent unreasonableness, and reasonableness simpliciter with respect to questions of mixed fact and law. I agree with his determination of the standard of review as it applied to the issues before him and that he correctly applied the standard. (Forrest v. Canada (Attorney General), [2004] F.C.J. No. 709, 2004 FCA 156 at paragraph 8)
[8] In the present case, the decision of the Chairperson was pursuant to paragraph 40(h) of the CCRA which states that:
40. An inmate commits a disciplinary offence who
h) fights with, assaults or threatens to assault another person;
40. Est coupable d'une infraction disciplinaire le détenu qui :
h) se livre ou menace de se livrer à des voies de fait ou prend part à un combat;
[9] In order to find the applicant guilty of the above-stated offence, the Chairperson must determine beyond a reasonable doubt whether, looked at objectively, in the context of all the words spoken and having regard to the person to whom they were directed, the questioned words convey a threat of serious bodily harm to a reasonable person. (See R. v. Clemente, [1994] 2 S.C.R. 758 at paragraph 9.)
[10] The applicant argues that since he was not eligible for parole until the year 2011, a reasonable person would not have concluded that his words were meant to be taken seriously since he did not have a present ability to carry out such an assault due to his long-term incarceration.
[11] The context of the matter is that the applicant, who is incarcerated for manslaughter, was being brought back to his cell after a segregation review in which he stated that "nothing ever gets done, it's just the same around here". The conversation then went as follows:
Officer Reimer: You're not going to get anything accomplished by threatening to put contracts on people.
Inmate Knight: Oh, I don't have to get someone else to do my dirty work, I'll take care of things myself. You live in the Sardis area across from the Twin Rinks. When I get out I'll be paying you a visit. You won't even see it coming. That's what I'm in here for; shooting the last person that pissed me off in the head!
[12] I do not find it patently unreasonable for the Chairperson to believe that an objective person would perceive that statement as a threat. The applicant clearly states "when I get out I'll be paying you a visit" and even goes so far as to state what he believes to be the place of residence of the Officer. He then intentionally adds credibility to his threat by stating that he has previously killed someone by shooting him in the head.
[13] The Chairperson did not make an unreasonable decision in finding the applicant guilty of uttering the threat, as he properly applied the objective test for determining whether the threat could be perceived as legitimate, and did not in any way err in his assessment of the facts:
But at the same time the officer here, I'm satisfied beyond a reasonable doubt that he actually saw that as a threat, whether you intended it to the degree he said - - he saw it or not, I think it's - - it's - - there's no question in my mind that he saw it as a threat.
But I'm saying inasmuch as you offered that yourself would tell us that something pretty serious happened there. So I'm satisfied that there was, in my mind, if somebody had - - if it was me there, I clearly would have saw that as a threat.
(See pages 60 and 61 of the transcript of the recorded hearing dated August 11, 2004.)
[14] The applicant submits that a duty existed on behalf of the Chairperson to refer the matter to the Kent Institutional Head to consider informal resolution and to review the charge. Both parties agree that the Chairperson does indeed have that authority, but disagree as to whether that power is discretionary or mandatory.
[15] The empowering section in this case is 41 of the CCRA which states that:
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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. [my emphasis]
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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. [je souligne.]
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[16] It is quite clear that the informal resolution of disciplinary offences is an important aspect of dealing with the offence, but is not a mandatory step. Although the Officer had indicated that informal resolution had been attempted, it had been done so for previous instances concerning the applicant and not with respect to the specific instance of the threats towards him. The applicant had been involved in numerous actions of this nature and informal resolution was attempted with no success. As Officer Reimer stated:
An informal resolution is a way of going other means than a charge. Okay, so have to make an attempt or - - [inaudible] I would say not actually, my ballpark, but management tends to make an attempt to resolve such situations. There was no resolve here. There was a history of escalating, and an inmate also put in numerous reports and saying he's got personal issues. This is a faction of the charge, and I [inaudible]. (See page 10 of the transcript of the recorded hearing dated August 11, 2004.)
[17] Furthermore, nearly a month after the incident, the case was reviewed by a different Corrections Officer who, after speaking with the applicant, concluded that informal resolution would not be possible and then recommended that the charges proceed. (See Offence Report Investigation Sheet of Officer Scott dated July 21, 2004.)
[18] The applicant raised a technical point; he states that since the informal resolution did not proceed, paragraph 14(b) of the Commission's directive provides that reasons be given explaining why the informal resolution process failed or why the process was not attempted.
[19] I agree that the informal resolution process is important; nevertheless, the Federal Court of Appeal in Laplante discussed the role of the chairperson hearing the case:
In short, the chairperson of a Board plays an important role in the administration of the disciplinary system. His duties and powers are conditioned by the objectives and principles of this system. Sometimes his powers are explicit, sometimes they are implicit. On other occasions, they flow from his function and his jurisdiction as a disciplinary tribunal. In order to maintain the integrity of the disciplinary system, its ultimate purpose and its objectives, and to ensure enforcement of an inmate's right to have an attempt made at informal resolution, the chairperson who is satisfied that the mandatory provisions of section 41 have not been complied with has, in my opinion, the power to return the matter for this purpose to the institutional head. This is an effective and inexpensive way of guaranteeing compliance with an obligation imposed on the Correctional Services and the correlative right conferred on the inmate. (See Laplante v. Canada (Attorney General) (C.A.), [2003] F.C.A. 244 para 20.) [my emhpasis]
[20] Is the fact that the staff member did not mention in his report the reasons for which there was no attempt at informal resolution, so important as to constitute a breach of fairness in the process? I don't think so.
[21] This question was raised at the hearing and the Chairperson was totally aware of the situation and had the power to suspend the hearing of the complaint and return the matter to the institutional head if he was concerned that there was a breach of the duty imposed under subsection 41(1):
In practice, this power of the Board to ensure compliance with the rights of an inmate charged with disciplinary offences means this in case of a breach of the duty under subsection 41(1). When informed of a violation of the inmate's right under subsection 41(1), and satisfied that the duty imposed by that provision has not been respected, the chairperson of the Board may suspend the hearing of the complaint and return the matter to the institutional head so that the latter can evaluate the appropriateness of attempting an informal resolution. I hasten to explain that the role of the Board chairperson is limited to this referral back. (See Laplante (supra) para. 13.)
[22] In fact, the Chairperson has an obligation to examine an alleged breach of the general duty to act fairly. However, in reviewing the transcript of the hearing, I realize that the applicant did not raise the paragraph 14(b) violation as an important issue. Given that the applicant had a fair hearing and was allowed to make his point and respond to allegations and cross-examine witnesses, I am not convinced that there was any breach of the general duty to act fairly. In Boudreau v. Canada (Attorney General), [2000] F.C.J. No. 2016, at paragraph 7, Justice Dubé held:
The jurisprudence has established general principles regarding the nature of the disciplinary proceedings conducted by an Independent Chairperson of a disciplinary court. These hearings are neither judicial nor quasi-judicial in character. They are merely administrative proceedings. There is no requirement to conform to any particular procedure or to abide by the rules of evidence. However, there is an overall duty to act fairly in the sense that the prisoner must be aware of the allegations and the evidence against him and be afforded a reasonable opportunity to respond. These hearings are not conducted in an adversary manner but in an inquisitorial one, in the sense that the Chairperson must examine both sides of the question. It is not for a 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 the court must limit itself to consider whether there has been a breach of the general duty to act fairly. Finally, the judicial discretion in relation to disciplinary matters must be exercised sparingly and a remedy ought to be granted only in cases of serious injustice.
[23] Given the background of the applicant and the previous attempts at informal resolution, I do not find it unreasonable that the Chairperson did not refer the case back to the institution for informal resolution for this particular incident.
[24] The applicant further argues that his procedural fairness was violated because the Institutional Head at Kent did not review and approve the charges against him, as that was done by the Coordinator of Correctional Operations at Matsqui. The applicant claims that had the review been completed by the Head of the Kent Institution, the charges against him may have been withdrawn or an informal resolution may have been attempted.
[25] Sections 15 and 16 of the Commissioner's Directive 580 are of significant importance to the issue of reviewing the charges and read as follows:
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15.The Institutional Head shall review each offence report and may, depending on the seriousness of the alleged conduct and any aggravating or mitigating factors, lay a charge of a minor or serious disciplinary offence, specifying under which paragraph of section 40 of the CCRA the charge is laid.
16.The Institutional Head may delegate this authority to a staff member, normally not below the level of Unit Manager/Team Leader or Coordinator of Correctional Operations, designated by name or position for that purpose in institutional Standing Orders.
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15.Le directeur de l'établissement doit étudier chaque rapport d'infraction et peut, selon la gravité de la faute présumée et l'existence de tout facteur atténuant ou aggravant, porter une accusation d'infraction disciplinaire mineure ou grave. Si tel est le cas, il doit préciser en vertu de quel alinéa de l'article 40 de la LSCMLC l'accusation est déposée.
16.Le directeur de l'établissement peut déléguer ces pouvoirs à un employé désigné à cette fin (lequel occupe normalement un poste équivalent ou supérieur à celui de gestionnaire d'unité ou chef d'équipe ou de coordonnateur des opérations correctionnelles), soit expressément, soit en fonction du poste qu'il occupe, dans des ordres permanents de l'établissement.
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[26] The Directive indicates that the Institutional Head may delegate their authority to another competent staff member such as a Coordinator of Correctional Operations, which is the person who was designated in this case. Section 27 of the Commissioner's Directive 580 indicates that the inmate shall be provided with a copy of the offence report within two days of the laying of the charge, which is accomplished by having a reviewing officer sign the document.
[27] There is a short time deadline between the time during which the charge is laid and the time the inmate must receive the signed report. Seeing as to how inmates often change institutions numerous times during their periods of incarceration, it would be too onerous to demand that this time deadline be met, while not allowing for a delegation of power. During the hearing, this exact point was also addressed:
Mr: Harper: This charge was - - this inmate, the charge was investigated and started at the institution. An officer, and there's an investigation sheet attached to this report, and it was done by an officer of this institution because Mr. Knight was up in segregation here at the time. And so the charge was initiated, the actual investigative process was started here, and an officer of this institution interviewed Mr. Knight and then made a recommendation which comes to my desk, and I make the determination of the charge. If we have Kent Institution doing the paperwork we have difficulty meeting the timeframe of two working days to deliver the inmate his charge because the paperwork is at another institution. And it's normal practice to do that, and it happens both ways. Sometimes I get charges that have already been designated, and what happens is before they ship the inmate they'll investigate it and send it with him, and sometimes that's not the case. I can't answer as to why it's different at this time, but I do get them both ways.
[¼]
The Chair: That's not an uncommon thing at all for a charge to be heard in another institution.
(See pages 56, 57 and 65 of the transcript of the recorded hearing dated August 11, 2004.)
[28] I do not find that any of the procedural rights of the applicant were infringed in any way. He was given a full, fair and impartial hearing and was allowed to make all of his submissions. The fact that the Coordinator of Correctional Operations authorized the laying of the charges was not only reasonable, but was authorized in law.
[29] For all of the above-mentioned reasons, I find that the procedural fairness of the applicant was not infringed, nor do I find that the Chairperson erred in convicting the applicant of having threatened Officer Reimer.
ORDER
THIS COURT ORDERS that:
The application for judicial review be dismissed.
(Sgd.) "Pierre Blais"
Judge
APPLICABLE LEGISLATION
Corrections and Conditional Release Act
| 40. An inmate commits a disciplinary offence who
(a) disobeys a justifiable order of a staff member;
(b) is, without authorization, in an area prohibited to inmates;
(c) wilfully or recklessly damages or destroys property that is not the inmate's;
(d) commits theft;
(e) is in possession of stolen property;
(f) is disrespectful or abusive toward a staff member in a manner that could undermine a staff member's authority;
(g) is disrespectful or abusive toward any person in a manner that is likely to provoke a person to be violent;
(h) fights with, assaults or threatens to assault another person;
(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;
(k) takes an intoxicant into the inmate's body;
(l) fails or refuses to provide a urine sample when demanded pursuant to section 54 or 55;
(m) creates or participates in
(i) a disturbance, or
(ii) any other activity
that is likely to jeopardize the security of the penitentiary;
(n) does anything for the purpose of escaping or assisting another inmate to escape;
(o) offers, gives or accepts a bribe or reward;
(p) without reasonable excuse, refuses to work or leaves work;
(q) engages in gambling;
(r) wilfully disobeys a written rule governing the conduct of inmates; or
(s) attempts to do, or assists another person to do, anything referred to in paragraphs (a) to (r).
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.
Charge may be issued
(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.
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.
Presence of inmate
(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.
Decision
(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.
44. (1) An inmate who is found guilty of a disciplinary offence is liable, in accordance with the regulations made under paragraphs 96(i) and (j), to one or more of the following:
(a) a warning or reprimand;
(b) a loss of privileges;
(c) an order to make restitution;
(d) a fine;
(e) performance of extra duties; and
(f) in the case of a serious disciplinary offence, segregation from other inmates for a maximum of thirty days.
Collection of fine or restitution
(2) A fine or restitution imposed pursuant to subsection (1) may be collected in the prescribed manner.
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| 40. Est coupable d'une infraction disciplinaire le détenu qui :
a) désobéit à l'ordre légitime d'un agent;
b) se trouve, sans autorisation, dans un secteur dont l'accès lui est interdit;
c) détruit ou endommage de manière délibérée ou irresponsable le bien d'autrui;
d) commet un vol;
e) a en sa possession un bien volé;
f) agit de manière irrespectueuse ou outrageante envers un agent au point de compromettre l'autorité de celui-ci ou des agents en général;
g) agit de manière irrespectueuse ou outrageante envers toute personne au point d'inciter à la violence;
h) se livre ou menace de se livrer à des voies de fait ou prend part à un combat;
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;
k) introduit dans son corps une substance intoxicante;
l) refuse ou omet de fournir l'échantillon d'urine qui peut être exigé au titre des articles 54 ou 55;
m) crée des troubles ou toute autre situation susceptible de mettre en danger la sécurité du pénitencier, ou y participe;
n) commet un acte dans l'intention de s'évader ou de faciliter une évasion;
o) offre, donne ou accepte un pot-de-vin ou une récompense;
p) sans excuse valable, refuse de travailler ou s'absente de son travail;
q) se livre au jeu ou aux paris;
r) contrevient délibérément à une règle écrite régissant la conduite des détenus;
s) tente de commettre l'une des infractions mentionnées aux alinéas a) à r) ou participe à sa perpétration.
Tentative de règlement informel
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.
Accusation
(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. 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.
Présence du détenu
(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.
Déclaration de culpabilité
(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.
44. (1) Le détenu déclaré coupable d'une infraction disciplinaire est, conformément aux règlements pris en vertu des alinéas 96i) et j), passible d'une ou de plusieurs des peines suivantes :
a) avertissement ou réprimande;
b) perte de privilèges;
c) ordre de restitution;
d) amende;
e) travaux supplémentaires;
f) isolement pour un maximum de trente jours, dans le cas d'une infraction disciplinaire grave.
Amende ou restitution
(2) Le recouvrement de l'amende et la restitution s'effectuent selon les modalités réglementaires.
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Corrections and Conditional Release Regulations
| 41. (1) Where an inmate is found guilty of a disciplinary offence, the carrying out of the sanction may be suspended
(a) in the case of a minor disciplinary offence, by the institutional head or a staff member designated by the institutional head, subject to the condition that the inmate is not found guilty of another disciplinary offence committed during a specific period fixed by the institutional head or staff member, which period shall not be longer than 21 days after the date of imposition of the sanction; and
(b) in the case of a serious disciplinary offence, by the independent chairperson, subject to the condition that the inmate is not found guilty of another serious disciplinary offence committed during a period fixed by the independent chairperson, which period shall not be longer than 90 days after the date of imposition of the sanction.
(2) Where an inmate no longer meets a condition referred to in subsection (1), the inmate shall carry out the sanction that was suspended.
(3) The institutional head may, on humanitarian grounds or for rehabilitative purposes, cancel a sanction imposed pursuant to section 44 of the Act.
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41. (1) L'exécution de la peine du détenu déclaré coupable d'une infraction disciplinaire peut être suspendue :
a) dans le cas d'une infraction disciplinaire mineure, par le directeur du pénitencier ou l'agent désigné par lui pourvu que le détenu ne soit pas reconnu coupable d'une autre infraction disciplinaire commise dans un délai déterminé par le directeur ou l'agent, lequel délai ne doit pas dépasser 21 jours suivant la date où la peine a été infligée;
b) dans le cas d'une infraction disciplinaire grave, par le président indépendant, pourvu que le détenu ne soit pas reconnu coupable d'une autre infraction disciplinaire grave commise dans un délai déterminé par le président indépendant, lequel délai ne doit pas dépasser 90 jours suivant la date où la peine a été infligée.
(2) Si le détenu manque à la condition visée au paragraphe (1), il doit purger la peine dont l'exécution avait été suspendue.
(3) Pour des raisons humanitaires ou aux fins de la réadaptation du détenu, le directeur du pénitencier peut annuler une peine infligée en application de l'article 44 de la Loi.
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1636-04
STYLE OF CAUSE: KEVIN RANDALL KNIGHT
- and -
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: May 18, 2005
REASONS FOR ORDER AND ORDER: BLAIS J.
DATED: May 19, 2005
APPEARANCES:
Ms. Dana Kripp FOR APPLICANT
Mr. Edward Burnet FOR RESPONDENT
SOLICITORS OF RECORD:
Dana Kripp FOR APPLICANT
Barrister & Solicitor
Vancouver, BC
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
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