Date: 20021104
Docket: T-1824-02
Neutral Citation: 2002 FCT 1135
Montreal, Quebec, November 4, 2002
Present: The Honourable Mr. Justice Blais
BETWEEN:
RICHARD PAUL CONDO
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion for a stay of the sentence of five-day of loss privileges-"dead lock" rendered on October 28, 2002.
[2] The applicant is an inmate at La Macaza Institution and was convicted of two minor disciplinary offences on October 28, 2002.
[3] Consequently, the applicant was sentenced to five-day of loss privileges-"dead lock", which confines the applicant to his cell between 6:00 P.M. and breakfast the next morning, for a period of five days.
[4] To this day, the applicant has decided not to pursue the grievance procedure. At the hearing, counsel for the applicant suggested that given that the respondent was going to apply the sanction immediately, he had no choice but to apply for judicial review of the decision and for a stay of the sentence before initiating the grievance procedure.
[5] The Supreme Court of Canada has set out a tripartite test to be met in order for a court to grant a stay of proceeding. The applicant must demonstrate: i) that there is a serious issue to be tried; ii) that he will suffer irreparable harm if the stay is denied; and iii) that the balance of convenience is in his favour.
SERIOUS ISSUE
[6] Over the years, case law has demonstrated that the threshold to determine whether there is a serious issue to be tried is very low.
[7] In the case at bar, the applicant suggests that the respondent has not followed its own rules, namely subsection 31(1)(b) of the Corrections and Conditional Release Regulations of the Department of the Solicitor General:
31(1) The person who conducts a hearing of a disciplinary offence shall give the inmate who is charged a reasonable opportunity at the hearing to
(a) question witnesses through the person conducting the hearing, introduce evidence, call witnesses on the inmate's behalf and examine exhibits and documents to be considered in the taking of the decision; and
(b) make submissions during all phases of the hearing, including submissions respecting the appropriate sanction.
...
31(1) Au cours de l'audition disciplinaire, la personne qui tient l'audition doit, dans des limites raisonnables, donner au détenu qui est accusé la possibilité:
a) d'interroger des témoins par l'intermédiaire de la personne qui tient l'audition, de présenter des éléments de preuve, d'appeler des témoins en sa faveur et d'examiner les pièces et les documents qui vont être pris en considération pour arriver à la décision;
b) de présenter ses observations durant chaque phase de l'audition, y compris quant à la peine qui s'impose.
[...]
[8] I have noted contradictions between the affidavit of the applicant and the affidavits provided by the respondent, i.e. affidavit of Mr. Mario Bélanger and affidavit of Mr. Daniel Bonin. Mr. Bélanger mentions at paragraphs 56-62 of his affidavit:
56. Également, le demandeur a eu l'opportunité de faire des représentations au décideur;
57. D'ailleurs, avant que le décideur ne rende son verdict quant à la culpabilité et la sentence du demandeur, il a demandé à ce dernier s'il avait fait toutes ses représentations;
58. Le demandeur a alors dit oui;
59. Le décideur a par la suite pris la cause en délibéré puis a rappelé le demandeur;
60. Le décideur a alors fait part au demandeur de sa décision relativement au verdict et à la sentence;
61. Le demandeur a alors demandé au décideur de faire d'autres représentations;
62. La décision du décideur ayant été prise, le demandeur n'a pas eu droit de faire d'autres représentations;
[9] The serious issue raised by the applicant is whether the inmate had "a reasonable opportunity at the hearing to ... make submissions during all phases of the hearing, including submissions respecting the appropriate sanction".
[10] There seems to be an admission by Mr. Bélanger, at paragraph 60 of his affidavit, that [le décideur] had rendered his decision concerning the verdict and the sanction at the same time.
[11] In so doing, the applicant suggests that [le décideur] committed an error, in that he should have rendered a decision on whether the applicant was guilty or not and then, allowed the applicant to make representations before applying the sanction.
[12] Although the applicant failed to convince me that he was not given a reasonable opportunity to make submissions, I nevertheless conclude that he raised a serious issue.
IRREPARABLE HARM
[13] The applicant submits that he will suffer irreparable harm if the stay is denied, referring to Fieldhouse v. Canada, [1994] B.C.J. No. 740 (B.C.S.C.), at page 18, para. 68: "... Harm is irreparable if it is such that an award of damages after the event will not be adequate compensation ...".
[14] The applicant further submits that the Charter of Rights and Freedoms [hereinafter the "Charter"] has been violated, as stated later in Fieldhouse, supra, at para. 70: "... An inmate's s. 7 rights of liberty and security of the person are at stake when solitary confinement is imposed ...".
[15] In the case at bar, the consequences for the inmate are that he will be confined to his cell from 6:00 P.M. until 11:00 P.M. without possibility of participating in activities or using the telephone to call members of his family or friends.
[16] Nevertheless, the cell will not be locked and the inmate will also have the possibility to talk with the other inmate in his cell.
[17] At this stage, the applicant has failed to convince me that such partial reduction of privileges constitutes a violation of section 7 of the Charter.
[18] As submitted by the respondent, I should consider the fact that in the event of the stay being denied, if the Court finds in the application for judicial review that the respondent has committed an error, the applicant will have the opportunity to claim damages for the partial loss of freedom during those twenty (20) hours.
[19] Therefore, the annoyances that the applicant will suffer from the application of the sanction are very minimal and do not amount to irreparable harm.
BALANCE OF CONVENIENCE
[20] The applicant submits that should the relief sought be refused, the impact would be greater on him than it would be on the respondent, should the relief be granted. I disagree. Indeed, the stay of the applicant's sentence would directly affect the ability of the Correctional Services of Canada to fulfill its mandate.
[21] At paragraph 56 of counsel for the respondent's written submissions, there is a quote from Mr. Daniel Bonin's affidavit, La Macaza's deputy warden, to the effect that the ability of the Correctional Services of Canada to fulfil its mandate is in the public interest. I am in agreement with Mr. Bonin.
[22] I have no hesitation in following the jurisprudence stated by counsel for the respondent, i.e. in Teale v. Canada, [2000] F.C.J. No. 1666 and Plamondon v. Canada, [2001] F.C.J. No. 221. I have no hesitation in concluding that the balance of convenience favours the respondent.
[23] I would like to mention that counsel for the applicant eloquently presented her case before the Court and was very convincing. Nevertheless, the essence of this case lies in the applicant's reluctance to comply with very simple rules, applicable to all inmates in the penitentiary.
[24] In the circumstances at hand, to allow a stay would be to open the door to the questioning of hundreds, if not thousands, of small administrative decisions made daily in penitentiaries across the country. Maybe the applicant could take the opportunity to contemplate and reflect on the benefits of having a positive attitude rather than comparing his possible annoyances to public interest and security and to the operational success of the Correctional Services of Canada.
O R D E R
[25] Therefore, the application for a stay is dismissed.
"Pierre Blais"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1824-02
STYLE OF CAUSE:
RICHARD PAUL CONDO
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: Ottawa, Ontario by telephone conference
DATE OF HEARING: October 31, 2002
REASONS FOR ORDER AND ORDER :
THE HONOURABLE MR. JUSTICE BLAIS
DATED: November 4, 2002
APPEARANCES:
Ms. Diane Magas FOR APPLICANT
Mr. Sébastien Gagné FOR RESPONDENT
SOLICITORS OF RECORD:
Magas Law Office FOR APPLICANT
Ottawa, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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