Zanth v. Canada (Attorney General), 2004 FC 1113

Date: 20040811

Docket: T-1839-03

Citation: 2004 FC 1113

Toronto, Ontario, August 11, 2004

Present:           The Honourable Mr. Justice Blais

BETWEEN:

                                                             CLÉMENT ZANTH

                                                                                                                                            Applicant

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of a decision by the chairperson of the disciplinary court of the Donnaconna Institution dated September 11, 2003, under section 18.1 of the Federal Court Act. In that decision, the chairperson of the court found Clément Zanth (applicant) guilty of the disciplinary offence provided in paragraph 40(h) of the Corrections and Conditional Release Act, 1992, c. 20 (Act).

FACTS

[2]         The applicant was an inmate at the Donnaconna penitentiary when on April 11, 2003, there was a brawl in the common room. The evidence shows that the applicant and another inmate, Mr. Guindon, exchanged blows for a short period of time. The guards reacted quickly, sounding a siren, releasing gas into the room where the two inmates were and lowering the barriers to contain the inmates then out of their cells. As soon as the guards intervened, the applicant returned to his cell of his own accord; the other party remained in the room and had to be handcuffed. The evidence also shows that the applicant was bleeding profusely when he left the room, and that he was treated the same night, first at the infirmary, then at an outside hospital, for lacerations on his back, nape, neck and face (13 lacerations according to the report prepared by the nurse on the night of the incident, some requiring stiches).

[3]                Two guards and two inmates, as well as the applicant and the nurse, testified about the events. One of the guards said that he saw the applicant enter the common room where Mr. Guindon was, alone. The applicant went towards Mr. Guindon and, within seconds, the brawl broke out. The second guard did not see the beginning of the altercation. The two guards were posted in the observation room, above the common room. The second guard was watching something else; his colleague drew his attention to the fight. The second guard does not remember if there were other inmates in the common room during the altercation, either.

[4]                The inmates' version is quite different. According to them, another inmate sat down at a table in the room. Right before the altercation, the applicant headed towards the refrigerator to get some vegetables. He was coming back with the vegetables to the table where the other inmate was when Mr. Guindon attacked him from behind. The applicant then turned around to retaliate.

[5]                The applicant adds to this story that he first spoke to Mr. Guindon, who was at the back of the room, then headed toward the refrigerator for the vegetables.

[6]                The two guards saw the inmates fighting face to face. They did not see the attack from behind. They confirm that they saw blood on the applicant when he left the room.

[7]                Mr. Guindon had already had an argument with another inmate earlier. Officer Laurent testified that he was being watched because the guards sensed that a fight was going to break out.

[8]                The disciplinary charge brought against the applicant was drafted as follows: "[TRANSLATION] The above-named person is reported for implicating himself in a fight with a fellow inmate in a common room of "H" block".

DECISION BY DISCIPLINARY COURT

[9]                At the disciplinary hearing, the applicant raised self-defence. The chairperson of the court did not address it. The chairperson's decision reads as follows::

[TRANSLATION]

Officer Laurent clearly stated that his view was not blocked and that he had a view of the event that took place. There was no inmate facing the window of the common room. As for Mr. Zanth's defence, in fact, there are witnesses who came to testify that Zanth had been assaulted. Asselin [inmate] mentioned it, Latouche [inmate] mentioned it.

As for inmate Zanth, he says that he, actually, he spoke to inmate Guindon but that he went to get some fruit. Point of fact, there are fruits or vegetables in the fridge.

[Advisor interjects: Vegetables].

There were vegetables, yes, in the fridge and he went to Latouche's table. I highly doubt the defence advanced and I assign a lot more credibility to the testimony of Officer Laurent and Officer Beaulé, especially when Officer Laurent says that the brawl broke out immediately. I have a hard time believing that inmate Zanth had enough time to go to the fridge and then go to inmate Latouche's table.

So, considering that I assign more credibility to the testimony of the Institution, under the circumstances, I therefore find inmate Zanth guilty.

LEGISLATION

[10]       Corrections and Conditional Release Act, 1992, c. 20:

[11]            Criminal Code, R.S. 1985, c. C-46:

ISSUES

[12]       The applicant raised two issues in this judicial review:

(1)         Did the Chairperson of the disciplinary court err in law on the issue of reasonable doubt in not applying it to the defence of self-defence?

(2)         When confronted with two contradictory versions, did the chairperson of the disciplinary court err in law on the issue of reasonable doubt by choosing the version of the witnesses of the correctional service because he found it to be more credible, without asking himself if the applicant's version raised a reasonable doubt?

ANALYSIS

[13]       In this matter, the chairperson of the court made two fundamental errors in law: one in respect of reasonable doubt, the other in respect of the defence.

Reasonable doubt regarding credibility

[14]       In his factum, the Attorney General of Canada (respondent) admitted at the outset that the chairperson had erred regarding the burden of persuasion on the prosecutor, i.e. the Correctional Service of Canada (CSC), and that the chairperson had erred in law by short-circuiting the analysis of reasonable doubt "[TRANSLATION] which was mandatory for him to carry out according to the orders of the Supreme Court".

[15]            The Act provides at subsection 43(3) that:

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.

[16]            In R. v. W. (D.) [D.W.], [1991] 1 S.C.R. 742, the Supreme Court of Canada clearly stated that expressing reasonable doubt in terms of credibility is an error of law. In that matter, a sexual assault charge, the judge had instructed the jury in appropriate terms on the Crown's burden of persuasion, and gave a good explanation of the expression "beyond a reasonable doubt". However, in a recharge requested by the Crown, the judge explained to the jurors that they had to decide, between the accused and the victim, who was the more credible of the two. The Supreme Court stated strongly that the principle of reasonable doubt must not be confused with credibility. According to the Supreme Court, it is possible to assign less credibility to the accused while still having a reasonable doubt. In such a case, he must be acquitted. At paragraphs 26 to 28, Cory J., on behalf of the majority, describes the error and how to correct it:

26 It is clear that the trial judge erred in his recharge. It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown's evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused's evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.

27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. See R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin,supra, at p. 357.

28 Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle.

[17]            It is clear in this matter that the chairperson of the court did not comply with this model. He assigned more credibility to the officers, and his analysis ended there. He did not ask himself whether the evidence had been made beyond a reasonable doubt.

[18]            The Federal Court of Appeal, in Ayotte v. Canada (Attorney General), [2003] F.C.J. No. 1699 (C.A.), issued a judgment in a disciplinary context where it found that basing the decision on grounds of credibility, rather than on the analysis of reasonable doubt, amounted to an error in law:

22 Moreover, the chairperson of the disciplinary court misdirected himself on the law in this case where credibility was important because all of the evidence rested on the contradictory testimony of the two witnesses. Even if he did not believe the appellant's testimony, he had to acquit him if a reasonable doubt subsisted as to his guilt. Even if he did not believe the appellant's deposition, he should have examined it in the context of the evidence as a whole and the reasonable inferences that he could draw from each and every piece of evidence. But after that examination he had to acquit him if he was not convinced of his guilt beyond a reasonable doubt. A reading of the transcript of the arguments clearly indicates that the chairperson of the disciplinary court did not conduct this exercise. He was content to make an inappropriate equation between the appellant's guilt and his absence of credibility, thereby altering the standard of proof required by the Act to support a guilty verdict.

Reasonable doubt regarding self-defence

[19]       Should the respondent admit this first error in law, he contends that the decision by the chairperson of the court is nevertheless founded, because the undisputed version of the assault by the applicant made "[TRANSLATION] the debate advanced by the applicant via this application for judicial review a false debate arising from a paralogism".

[20]            In fact, the respondent continues, the applicant acknowledged that he had struck Mr. Guindon. I refer to the passage in the memorandum:

[TRANSLATION] An amazing fact if there ever was one, considering the applicant's position, according to his own version, he confessed that, once inmate Guindon attacked him:

". . . Then I turned around, that was when I started to fight and I hit him. . . ."

The applicant's version therefore excludes any possibility that it falls within the context of any kind of defence of his person;

To the contrary, it becomes obvious that at one point, the applicant was the assailant, according to his own words;

[21]            The reasoning seems to be as follows: since he delivered some blows, he cannot claim self-defence. That is a total misconception of the meaning of "self-defence". Self-defence does not negate the blows that were dealt, nor even the intention to deliver blows, but is rather a justification. On this point, we refer to a recent decision by the Supreme Court, R. v. Kerr , [2004] S.C.J. No. 39, which clarifies the meaning that should be given to "self defence":

28 It is interesting to note that, conceptually, the defence of self-defence is not something which one "intends" in the criminal law sense. A person who is attacked intends to assault the assailant; his motivation is self-protection or self-preservation. Stated otherwise, self-defence does not negate the mens rea of assault, but rather allows the accused to escape criminal liability on the basis of an acceptable motive . . .

[22]            The chairperson of the court simply dismissed the idea of self-defence, despite the uncontradicted evidence of blows to the applicant's back with a sharp object.

[23]            The defence of self-defence is defined in subsection 34(1) of the Criminal Code. The Supreme Court of Canada, in R. v. Hebert, [1996] 2 S.C.R. 272, identifies how the defence is to be understood in the context of a jury trial. The prosecutor's burden of proof remains the same in the context of disciplinary hearings, as provided in Ayotte. The Supreme Court states the following in Hebert at paragraphs 23-24 on self-defence pursuant to subsection 34(1) of the Criminal Code:

The jury must indeed be satisfied that every element of the defence has been met. That is to say for the defence to be successful the jury must be left with a reasonable doubt as to the existence of all the elements of the defence. Namely, (I) the accused was unlawfully assaulted; (ii) the accused did not provoke the assault; (iii) the force used by the accused was not intended to cause death or grievous bodily harm; and (iv) the force used by the accused was no more than necessary to enable him to defend himself. The trial judge was correct in stating that the defence would only succeed if a reasonable doubt was raised with respect to all of these elements.

. . . The Crown is not required to prove beyond a reasonable doubt that the appellant's conduct fails on every element of the defence. It suffices if the Crown can prove beyond a reasonable doubt that any one of the four elements set out above was not established.

[24]            It is still necessary for the prosecutor to prove beyond a reasonable doubt that one of the four elements listed was not established. In this case, the applicant raised a doubt regarding the four elements. He claims to have been attacked from behind; he was in fact badly injured in the back. He submits that he did not provoke the attack; the guards spoke about the fact that Mr. Guindon was under surveillance, because it was feared that he might provoke an incident. There is nothing to indicate that the applicant had intended to cause death or grievous bodily harm. Finally, the applicant stopped fighting when the alarm sounded.

[25]            The prosecutor did not establish beyond a reasonable doubt that one of these elements was not established. The respondent simply said that the applicant fought, that he therefore committed the offence, without ever really seriously considering self-defence.

Conclusion

[26]       In Ayotte, supra, Létourneau J.A., on behalf of the Federal Court of Appeal, clearly gave persons charged with disciplinary offences under the Act the same procedural safeguards as those in ordinary trials, in terms of defences. Létourneau J.A. acknowledged the particularities of the prison system, where the authorities must have a degree of flexibility to ensure that order is maintained. At the same time, in the words of the Court of Appeal, those who are charged with a disciplinary offence are entitled to procedural equity:

11 Simply put, the prison disciplinary process calls for flexibility and efficiency, but flexibility and efficiency that must be sought and achieved through procedural fairness and compliance with the mandatory provisions of the law.

[27]            In Ayotte, supra, the chairperson of the court had not analyzed reasonable doubt in accordance with the precepts of the Supreme Court. According to the Court of Appeal, this was a fatal error:

16 The decision-maker's obligation to be satisfied beyond a reasonable doubt of the guilt of the accused as well as the onus imposed on the complainant or on the prosecutor to provide such evidence are inextricably linked to the presumption of innocence: R. v. Lifchus, [1997] 3 S.C.R. 320, at paragraph 13. "It is one of the principal safeguards which seeks to ensure that no innocent person is convicted.": ibidem. The failure to understand and to properly apply this standard of proof irreparably prejudices the fairness of the trial or the hearing.

[28]            Moreover, Létourneau J.A. continues, depriving the accused of his principal defence is a breach of procedural fairness:

19 The chairperson of the court could not disregard the only true defence raised by the appellant without compromising procedural fairness and failing in his duty to hold a full hearing. To repeat the remarks of Denault J. in Hendrickson, supra, or of Addy J. inBlanchard, supra, he should have examined "both sides of the question". He could dismiss the defence advanced by the appellant, but he could not disregard it in light of the evidence submitted.

20 Similarly, he could weigh and assess the evidence submitted by the appellant in support of his defence but he could not ignore it: Canada (Attorney General) v. Primard, [2003] F.C.J. No. 1400; Maki v. The Canada Employment Insurance Commission et al., [1998] F.C.J. No. 1129; Boucher v. Canada (Attorney General), [1996] F.C.J. No. 1378; Lépine v. Canada (Employment and Immigration Commission), [1990] F.C.J. No. 131; Rancourt v. Canada (Employment and Immigration Commission), [1996] F.C.J. No. 1429.

[29]            Although the facts of this case are relatively clear and the appropriate decision seems fairly obvious, I will repeat what I said at the hearing: "[TRANSLATION] I am aware of the nature of the problem and the context of the events, like the one in play in this case, and of their consequences on the management of prison institutions".

[30]            It is important that the management of prison institutions have the means to control situations where the lives of inmates and employees are at risk.

[31]            Management must be able to react quickly to conflict situations, especially when an altercation degenerates into a battle, a brawl or a quarrel involving one or more inmates.

[32]            Unfortunately, no matter the number or quality of the regulations in effect, nothing can prevent one inmate from attacking another when two or more people are in the same room.

[33]            The authorities on site must be able to intervene quickly and effectively. In my opinion, that is what they did in the case before us.

[34]            However, once the event is under control, disciplinary sanctions are one way among others to correct situations in the medium and long terms.

[35]            The inmates, whatever the gravity of their faults, have the right to be heard and to assert their rights. The right to self-defence has existed for a long time and, in my view, is here to stay.

[36]            This right cannot be used in any circumstances. It is already defined by the Criminal Code and by many court decisions.

[37]            If the Court, in this decision, determines that this ground of self-defence was not seriously considered and analyzed by the chairperson of the court, it would be a mistake to believe that this opens the door to a new approach in the case law and that in the future inmates could become more involved in violent altercations and fights in the institutions, believing that self-defence would be sufficient to excuse their involvement in fights.

[38]            The disciplinary offences provided under paragraph 40(h) of the Act have the same force and effect, and fighting is still a disciplinary offence.

[39]            The facts of this case show that the only ground of defence raised by the applicant was self-defence, that the court was bound to assess it, and that it did not do so.

[40]            In this case, it is clear that the chairperson of the court did not consider the need to be satisfied beyond a reasonable doubt, and that he did not seriously consider the only defence raised by the applicant. For these reasons, I would allow the application for judicial review and refer the matter to a differently constituted court.

                                                                       ORDER

THE COURT ORDERS that

-            the application for judicial review be allowed;

-          the matter be referred back to a differently constituted panel for rehearing in light of this order.

                                                                                                                                        "Pierre Blais"               

                                                                                                                                                   Judge                      

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                          T-1839-03

STYLE OF CAUSE:                          CLÉMENT ZANTH v. AGC

PLACE OF HEARING:                    Montréal

DATE OF HEARING:                      August 4, 2004

REASONS FOR ORDER AND ORDER: Mr. Justice Blais

DATE:                                                August 11, 2004

APPEARANCES:

Daniel Royer                                                                             FOR THE APPLICANT

Martin Lamontagne                                                                    FOR THE RESPONDENT

SOLICITORS OF RECORD:

Daniel Royer                                                                             FOR THE APPLICANT

LABELLE, BOUDRAULT, CÔTÉ et ASS.

Montréal, Quebec

Morris Rosenberg                                                                      FOR THE RESPONDENT

Attorney General of Canada

                         FEDERAL COURT

                                                          Date: 20040811

                                                     Docket: T-1839-03

BETWEEN:

CLÉMENT ZANTH

                                                                    Applicant

and

ATTORNEY GENERAL OF CANADA

                                                                Respondent

REASONS FOR ORDER AND ORDER