Date: 20040514
Dockets: T-425-03 and T-426-03
Citation: 2004 FC 702
Ottawa, Ontario, May 14, 2004
Present: The Honourable Mr. Justice Blais
BETWEEN:
JEAN-PIERRE LANGLOIS
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS IN SUPPORT OF BOTH ORDERS
[1] Jean-Pierre Langlois (the applicant) has been a prison inmate for thirteen years. He is currently residing in the Donnacona Institution in Quebec. A hearing concerning two disciplinary incidents was held on February 20, 2003, by the Disciplinary Board of the Donnacona Penitentiary. The tribunal chairperson convicted the applicant of the two offences as charged, and these two decisions are the subject of this application for judicial review.
[2] The two applications, T-425-03 and T-426-03, will be dealt with consecutively.
Docket T-425-03
FACTS
[3] On January 5, 2003, during a monthly search of the applicant's cell, the search officers discovered a T-Fal knife with a black plastic handle about nine and a quarter inches in length. The applicant was absent from his cell at the time; upon his return, he was informed of the discovery but was not told at any point where they had found the knife. The applicant asked several times where the knife had been discovered, but this information was not forthcoming. The applicant was charged with possession of a knife.
[4] At the hearing the applicant's counsel first sought to have the case thrown out because the lack of information deprived his client of his right to a full answer and defence. The chairperson decided to continue and in the end convicted the applicant of the offence.
[5] The applicant's counsel raises a number of issues; for analytical purposes we will discuss the ones that appear to us to determine the very object of the application, i.e. whether the chairperson's decision should be quashed.
ISSUES
[6] 1. Was there a failure of procedural fairness and natural justice in the trial of the alleged offence?
2. Is the search plan that exists in Donnacona Institution ultra vires its enabling legislation?
3. Did the chairperson commit a patently unreasonable error in his assessment of the evidence?
STATUTORY PROVISIONS
[7] Corrections and Conditional Release Act, S.C. 1992, c. 20:
| 58. A staff member may, in the prescribed manner, conduct searches of cells and their contents in the prescribed circumstances, which circumstances must be limited to what is reasonably required for security purposes.
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58. Dans les cas prévus par règlement et justifiés par des raisons de sécurité, l'agent peut, selon les modalités réglementaires, procéder à la fouille de cellules et de tout ce qui s'y trouve.
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[8] Corrections and Conditional Release Regulations, SOR/92-620:
| 25. (1) Notice of a charge of a disciplinary offence shall
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25. (1) L'avis d'accusation d'infraction disciplinaire doit contenir les renseignements suivants :
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| (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
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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;
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| (b) state the time, date and place of the hearing.
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b) les date, heure et lieu de l'audition.
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| (2) A notice referred to in subsection (1) shall be issued and delivered to the inmate who is the subject of the charge, by a staff member as soon as practicable.
. . .
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(2) L'agent doit établir l'avis d'accusation disciplinaire visé au paragraphe (1) et le remettre au détenu aussitôt que possible.
[...]
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| 51. (1) A staff member may, without individualized suspicion, conduct searches of cells and their contents on a periodic basis where the searches are designed to detect, through the systematic examination of areas of the penitentiary that are accessible to inmates, contraband and other items that may jeopardize the security of the penitentiary or the safety of persons and are conducted in accordance with a search plan
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| 51. (1) L'agent peut, sans soupçons précis, procéder périodiquement à une fouille de cellules et de tout ce qui s'y trouve lorsque celle-ci a pour but de déceler, par l'inspection systématique des secteurs du pénitencier accessibles aux détenus, les objets interdits ou autres choses pouvant compromettre la sécurité du pénitencier ou de quiconque et qu'elle est faite conformément à un plan de fouilles qui :(a) that sets out
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a) indique :
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| (i) when the searches are to take place,
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(i) le moment des fouilles,
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| (ii) the locations of the searches, and
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(ii) leur lieu,
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| (iii) the means that may be used to conduct the searches; and
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(iii) les moyens pouvant être employés pour les effectuer;
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| (b) that is approved by the institutional head as being in accordance with the purposes of this subsection.
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b) est approuvé par le directeur du pénitencier parce qu'il correspond aux fins du présent paragraphe.
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ANALYSIS
1. Was there a failure of procedural fairness and natural justice in the trial of the alleged offence?
Failure of procedural fairness:
[9] It is impossible to overlook the repeated interventions of the assessor and the chairperson, who in my opinion seriously hampered the defence. The assessor intervened incessantly while the applicant's counsel was questioning the officer responsible for the search. And on several occasions the chairperson prevented a question from being asked or a reply given, in a completely arbitrary way. A few illustrations follow:
Transcript
pp. 25-26
[translation]
Applicant's counsel:
... If there is a search plan and the guard conducts a search, and it is written that he must do so accordingly, and the search plan is specific, I want to know what the guard knows about this and what he did... I want to see what he did, what he understood about the search plan and how he functioned in that regard... so let me ask the guard some questions about what he did, it puts him in an awkward position, maybe...
Assessor:
Mr. [chairperson], Mr. Laberge answered all that, it is a monthly search, the search plan authorizes him to conduct a search of each cell at least once a month, there has to be two officers to conduct the search. He answered all that, there is no reason to have further questions in addition to that.
Applicant's counsel:
Well, come on, now! I think I can fully question about...
Assessor:
These are vague, imprecise questions the sole purpose of which is to annoy Mr. Laberge.... If you [addressing the chairperson] wish to ask some questions about the search plan, whether by you or through counsel if you wish, let him put them to me. The search plan, I know it to the tips of my fingers, I supervise some employees, Mr. Laberge did what he had to do....
Applicant's counsel:
But you aren't the one who searched, it's not you who searched.
Assessor:
Mr. Laberge did what he had to do.
...
Applicant's counsel:
... the search plan states the place, states the methods that may be used to carry them out. I want to know what are all these methods, with some gloves, with some... you may break some things, I want to know it all, and I have the right to know it all....
Assessor:
You are asking imprecise questions that are... that are out of place....
Mr. [chairperson], I request that all of the questions by [applicant's counsel] go through you....
Chairperson:
All right.
Assessor:
... and that they be filtered.
Chairperson:
I agree.
...
Applicant's counsel:
... what I would like to ask, is how many times in a month, is there a maximum or a minimum?
Officer Laberge:
I don't think there is any maximum.
Assessor:
Excuse me! Ask some precise questions. What type of search is counsel talking about?
Applicant's counsel:
A search in a cell.
Assessor:
Pardon?
Applicant's counsel:
In a cell.
Assessor:
What type of specific search in a cell?
...
Chairperson:
... So if you don't have any further questions to ask Mr. Laberge concerning the facts, concerning the event, concerning the report, the testimony of Mr. Laberge is concluded.
Applicant's counsel:
But I have further questions.
Chairperson:
But concerning the facts in the form of questions. If they are questions of a general nature, I am going to prevent Mr. Laberge from answering your questions.
...
Applicant's counsel:
In fact, and in practice, what are the methods that the officer took to comply with the search plan?
Chairperson:
You mean the methods?... What do you mean by a method?
Counsel:
All right, look, the text there...
Chairperson:
We are not here to engage in semantics, we are here because...
Counsel:
The legislation provides... the legislation provides that it takes so many searches and it indicates the methods that may be used to carry out searches. So I want to know....
Chairperson:
Then [the assessor] will answer you on that.
Counsel:
But I am not asking [the assessor]. I want to know... the methods the guard used to comply with the search plan. I want to know that.
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Chairperson:
Gentlemen! Mr. [applicant's counsel], I will not allow Mr. Laberge to answer that question. I told you earlier that I wanted to keep to the facts and in my view, concerning the facts, Mr. Laberge's testimony is completed.
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Counsel:
I would like to know, Mr. Laberge, where he searched exactly, and the other persons where did they search?
Officer Laberge:
You want me to tell you where I searched in the cell? I searched a little bit...
Chairperson:
Excuse me! Excuse me, don't answer that question... Mr. Laberge, he signed the document and I repeat one last time, because it is essential that it be recorded. Mr. Laberge signed the notice of search, he was accompanied by Ms. Mathieu and the notice of search identifies cell J-216. In his testimony, Mr. Laberge told us in what location he had found the T-Fal knife, about nine and a quarter inches. So it is clear, as far as I'm concerned.
[10] The attitude of the chairperson and especially the attitude of the assessor are in my opinion unacceptable in the circumstances; although the chairperson is the master of the proceedings, there are also some limits that must not be transgressed; a reading of the transcript of the hearing leaves a sour taste, and it is to be hoped that both the chairperson and the assessor display greater restraint in future hearings and let the inmate's counsel do his or her work, as they are entitled to do.
Failure of natural justice:
[11] Section 25 of the Regulations address the information that must appear in the notice of disciplinary charges:
(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; ...
[12] The chairperson thought it was sufficient to indicate on the notice that a knife had been found in the applicant's cell; no particulars were given. So the applicant was informed only of the alleged offence; he was not provided with any of the evidence in support of the charge. Until the day of the hearing, neither the applicant nor his counsel knew where the knife had been found or in what circumstances. Yet a significant portion of the evidence turns on the light in the cell. By depriving the applicant of the evidence he is deprived of his defences, which is completely contrary to the principle of natural justice.
[13] The applicant cites, correctly in my view, the decision of Mr. Justice Pinard of this Court in Savard v. Canada (Attorney General), [1997] F.C.J. No. 105. I think we might reproduce here what Pinard J. said, which applies equally to this case:
6 As the notice of charge in the case at bar contains merely a description of the offence and no summary of the evidence to be presented in support of the charge at the hearing before the disciplinary tribunal is given, I am forced to find that the authorities did not carry out the will of Parliament, which intended to give an inmate charged with a disciplinary offence a specific and particular means of preparing a full and complete defence, which is a recognized rule of natural justice.
[14] In the last analysis, the proceeding was flawed by a lack of procedural fairness and natural justice. For these reasons, I believe the application for judicial review should be allowed and the decision of the disciplinary board set aside. The matter will be returned to the board for determination on the basis that the applicant cannot be convicted of the offence charged because the notice of disciplinary charges pertaining to that offence was not given in full compliance with section 25 of the Regulations.
[15] It will not be necessary, therefore, to examine the other two grounds cited in support of this application.
Docket T-426-03
[16] The application for judicial review applies to a decision of the Disciplinary Board that convicted the applicant under subsection 40(l) of the Act for refusing to submit to urinalysis.
FACTS
[17] In an observation report dated December 8, 2002, the officer supervising the recreation room observed three inmates who were passing a cigarette from one to another that one of them (the applicant) had rolled. The officer saw the applicant roll two cigarettes, but noted that what he supposed to be a third cigarette was also shared among the three inmates. The officer was separated from the room by a window that blocked all odours.
[18] The applicant explained on his own behalf that given the price of tobacco, and the fact that the tobacco provisions are rapidly decreasing, it is normal to share the cigarettes that one has rolled with others, and that it would be surprising, to say the least, to smoke dope so openly.
[19] On December 30, 2002, on the basis of the observation report, the applicant was asked to provide a urine sample, which he refused to do. The applicant complained to the warden about the vagueness of the allegations. The evidence shows that the officer who completed the observation report was mistaken concerning the inmates' cell numbers and the colour of the applicant's dressing gown. The applicant, however, does not deny in his testimony the facts observed. The applicant was convicted under subsection 40(l) of the Act and sentenced to six days of detention with radio only.
ISSUE
[20] Was the decision of the chairperson of the disciplinary board to consider that the Correctional Service of Canada had reasonable grounds to believe that the applicant had used a drug an error in law or a patently unreasonable error concerning the facts?
LEGISLATION
[21] Corrections and Conditional Release Act:
| 54. Subject to section 56 and subsection 57(1), a staff member may demand that an inmate submit to urinalysis
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54. L'agent peut obliger un détenu à lui fournir un échantillon d'urine dans l'un ou l'autre des cas suivants :
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| (a) where the staff member believes on reasonable grounds that the inmate has committed or is committing the disciplinary offence referred to in paragraph 40(k) and that a urine sample is necessary to provide evidence of the offence, and the staff member obtains the prior authorization of the institutional head;
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a) il a obtenu l'autorisation du directeur et a des motifs raisonnables de croire que le détenu commet ou a commis l'infraction visée à l'alinéa 40k) et qu'un échantillon d'urine est nécessaire afin d'en prouver la perpétration;
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| 40. An inmate commits a disciplinary offence who
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40. Est coupable d'une infraction disciplinaire le détenu qui :
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| (a) disobeys a justifiable order of a staff member;
(...)
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a) désobéit à l'ordre légitime d'un agent;
(...)
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| (k) takes an intoxicant into the inmate's body;
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k) introduit dans son corps une substance intoxicante;
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| (l) fails or refuses to provide a urine sample when demanded pursuant to section 54 or 55;
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ANALYSIS
[22] The Act requires that there must be reasonable grounds for an officer to require an inmate to submit to urinalysis. In Lapierre v. Canada (A-G), [2003] F.C.J. No. 700 (F.C.), Mr. Justice Blanchard held that the "reasonable grounds" test did not apply the same way in penitentiary law as it does in the criminal law. He distinguished the decision in La Reine v. Bergevin (Laval Municipal Court, 0080134-877) in which the smell of drugs in the suspect's vehicle and the fact his eyes were glazed were not considered sufficient to justify an arrest, whereas the same clues, for Blanchard J., constituted reasonable grounds under section 54. The disciplinary context of a penitentiary, Blanchard J. said, justifies a different control over the behaviour of the persons who are detained.
[23] The issue, then, is whether, in the penitentiary context, the mere fact of passing one or more cigarettes around a table constitutes "reasonable grounds" to believe that the inmate "[took] an intoxicant into the inmate's body". The explanation provided by the applicant is plausible, and some of the evidence that would make the charge persuasive is lacking, to be sure. The officer could not identify the substance or smell it; other than the sharing of the cigarettes, there was no anomaly worth noting in the conduct of the inmates, who acted openly without concealment. From the testimony there were no reasonable grounds to believe, only a suspicion because of the fact that the cigarette was being shared.
[24] It is curious, moreover, that the sample was requested on December 30, 2002, when the reasonable ground cited is a fact that goes back to December 8, 2002. If the officer really had some grounds to think that urinalysis was necessary to prove the offence that was allegedly committed on December 8, 2002, why did they wait three weeks before requesting the sample?
[25] In my opinion, the applicant is right to complain about the excessive vagueness of the allegations, in view of the rather innocuous nature of what was observed, and for which the applicant provided a plausible explanation, and in view of the time elapsed between the alleged offence and the request for a sample. In his assessment of the evidence, the chairperson mentions past allegations and explains that he was inclined to find that the officer had reasonable grounds for requesting the sample because "[translation] as a former smoker, I find that this is a strange way to smoke among individuals" (transcript, page 39) without taking any account of the applicant's testimony.
[26] In fact, it was not unreasonable for the officer to reduce his observation to writing and to submit it to his superior. However, he would have been wise to follow up his observation by further tangible actions such as, for example, seizing the potentially incriminating cigarettes, or summarily evaluating the smell or other distinctive signs among the suspect smokers in the minutes following the observation.
[27] It is the delay of more than three weeks that makes the exercise even more unreasonable. It is always possible that an officer will observe the conduct of one or more inmates and conclude that he has "reasonable grounds to believe that the inmate(s) took an intoxicant into the inmate's body". However, the officer must follow up his observation with other measures, as discussed above, that can allow "closer" control over the events and general findings that themselves are reasonable.
[28] For these reasons, I think the conclusion of the chairperson was patently unreasonable. I am of the opinion that the decision should be set aside and the matter sent back to another independent chairperson. Once again, it seems impossible to redo the exercise in a satisfactory way and end up with a conviction of the applicant on the offence as charged, given all the circumstances and in particular these reasons.
"Pierre Blais"
Judge
Certified true translation
Suzanne M. Gauthier, C Tr, LLL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-425-03 and T-426-03
STYLE: JEAN-PIERRE LANGLOIS v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal
DATE OF HEARING: April 28, 2004
REASONS: Mr. Justice Blais
DATED: May 14, 2004
APPEARANCES:
Serge Bernier FOR THE APPLICANT
Sébastien Gagné FOR THE RESPONDENT
SOLICITORS OF RECORD:
Serge Bernier FOR THE APPLICANT
Bernier, Parenteau
425 Cormier Street
Drummondville, Quebec J2C 7H6
Sébastien Gagné FOR THE RESPONDENT
Regulatory Law Directorate
Quebec Regional Office
Department of Justice
St. Andrew's Tower, TAS-6025
234 Wellington Street
Ottawa, Ontario K1A 0H8
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