Date: 19990930
Docket: T-1415-98
BETWEEN:
DANIEL GRENIER
Applicant
- and -
THE DISCIPLINARY BOARD OF DONNACONA PENITENTIARY
Mr. MAXIME LANGLOIS, in his capacity as
chair of the Disciplinary Board and
ATTORNEY GENERAL OF CANADA
Defendants
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of a decision of the Disciplinary Board of the Donnacona Institution, which found that the applicant had committed a disciplinary offence under section 40(m) of the Corrections and Conditional Release Act.
FACTS
[2] On May 29, 1998, the applicant was going to his class wearing his woollen slippers. Correctional Officer G. Lafontaine asked him to remove them and put on running shoes or shoes. The applicant replied in the negative, pleading that he had been going to his classes in slippers for several weeks, and went on his way.
[3] Ms. Lafontaine called the hub to advise the guard to return the applicant to his cell. The applicant complied.
[4] When he arrived at his cell block, four guards were leaning against the wall. While he was four or five feet from Ms. Lafontaine, the applicant tossed his sheaf of papers, held together by a Duo-tang binder, in the vicinity of the officer. None of the guards present, including Ms. Lafontaine, intervened and the applicant immediately entered his block.
[5] An hour later, four guards came looking for the applicant, telling him he would be going to detention because he had thrown some papers at a guard. The applicant was then charged with attempting to strike Ms. Lafontaine, contrary to paragraph 40(m) of the Corrections and Conditional Release Act.
[6] On June 11, 1998, the hearing was held and the applicant was found to have committed the offence.
[7] The chair of the Committee sentenced the applicant to sixteen days" detention in addition to the twelve days already served and the loss of privileges pertaining thereto.
[8] The Corrections and Conditional Release Act1 is the applicable statute in the circumstances:
| 40. Est coupable d'une infraction disciplinaire le détenu qui_:
(...)
m) crée des troubles ou toute autre situation susceptible de mettre en danger la sécurité du pénitencier, ou y participe;
(...)
s) tente de commettre l'une des infractions mentionnées aux alinéas a) à r) ou participe à sa perpétration.
(...)
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.
41(2) 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.
(...)
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.
43(2) 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.
43(3) 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) Sanctions disciplinaires
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.
|
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| 40. An inmate commits a disciplinary offence who
(...)
(m) creates or participates in
(i) a disturbance, or
(ii) any other activity
that is likely to jeopardize the security of the penitentiary;
(...)
(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.
41(2) 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.
(...)
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.
43(2) 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.
43(3) 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) Disciplinary sanctions
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.
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ANALYSIS
[9] It appears that, pursuant to the applicable provisions of the Act, a conviction under section 40(m) is considered a serious disciplinary offence since, among the sanctions listed in section 44(1), segregation for a maximum of thirty days is apparently the maximum punishment in the case of a serious disciplinary offence.
[10] In this case, the applicant served twenty-eight days, which in my opinion constitutes a sanction for a serious disciplinary offence under this section.
[11] I have examined the documentation, and the evidence presented by the Correctional Service in no way supports the charge under section 40(m) or even section 40(s).
[12] I wish to note that the charge in question, "creating a disturbance or any other activity that is likely to jeopardize the security of the penitentiary" (my emphasis) is an extremely serious accusation and I wonder about this event, a trivial one when all is said and done, of refusing to take off one"s slippers and to put on shoes or running shoes.
[13] The applicant did something regrettable, it is true " throwing his papers on the ground in a gesture of frustration " but while the action is regrettable, there is no evidence to show that this action jeopardized the security of the penitentiary.
[14] That this simple action could result in a charge or conviction of this importance seems, at this point, disproportionate to the offence, and thus the decision is patently unreasonable.
[15] I wonder, if an individual is sent to detention for twenty-three out of twenty-four hours just for refusing to remove his slippers, what will the consequences be for an act by an inmate that actually jeopardizes the security of the penitentiary.
[16] Whatever the case, it is not my job to substitute my decision for that of the Disciplinary Board, but to ensure that the Board acted in compliance with the rules and that the decision is not so irregular or contrary to law as to attract the Court"s intervention.
[17] I am also disturbed to read paragraph 11 of the affidavit of the applicant Daniel Grenier, which states that:
| [Translation] On 10 June 98, Mr. François Bénard came to meet with me in detention to get me to sign a paper to the effect that I had refused to call a lawyer, which I categorically deny; |
[18] I was astonished to find that this sworn statement by the applicant was in no wise contradicted by the said François Bénard, who filed an affidavit in reply a few months after the applicant"s affidavit, and who expressly states in his own affidavit that he had examined the applicant"s affidavit.
[19] This might seem to be of little consequence if the said François Bénard, a correctional supervisor, had not subsequently acted as an assessor during the hearing before the Disciplinary Board. This factor, added to the others, warrants the intervention of this Court.
[20] Under section 43(3) of the Act, the Disciplinary Board shall not find the accused guilty unless satisfied beyond a reasonable doubt [emphasis added], based on the evidence presented at the hearing, that the inmate committed the disciplinary offence in question.
[21] In this connection, a careful reading of the transcript indicates that the chair of the Disciplinary Board seemed to express some doubt about the evidence that was before him, but decided nevertheless to convict the applicant although there was nothing in the record to point to the conclusion he reached.
[22] Indeed, no evidence was put forward to demonstrate how the applicant"s action, whatever it was, was likely in the alleged circumstances to jeopardize the security of the penitentiary. In view of the evidence before the Board, the conviction does not appear to be justified.
[23] How can the Disciplinary Board conclude beyond a reasonable doubt, as section 43(3) of the Act puts it, that the applicant created a disturbance that was likely to jeopardize the security of the penitentiary, without any evidence in relation to that danger being adduced before the Board?
[24] The inmate was convicted of an offence without evidence of the ingredients of the offence; this conviction had significant consequences for the inmate, altering his security classification and delaying his transfer opportunities. I conclude, without hesitation, that the Disciplinary Board erred in law.
[25] Although I have no jurisdiction over the administrative decision concerning his security classification, I would think that the defendants will adopt the necessary measures in the circumstances.
[26] For the reasons given, the Court quashes and sets aside the decision of the Disciplinary Board of June 11, 1998.
OTTAWA, ONTARIO
September 30, 1999
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| THE DISCIPLINARY BOARD OF THE DONNACONA PENITENTIARY ET AL. |
| PLACE OF HEARING: Québec, Quebec |
| DATE OF HEARING: September 23, 1999 |
REASONS FOR ORDER AND ORDER OF LEMIEUX J. [SIC]
DATED: September 30, 1999
APPEARANCES:
Julie Gagné for the applicant
Martin Lamontagne for the defendants
SOLICITORS OF RECORD:
Julie Gagné for the applicant
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the defendants
__________________
1 S.C. 1992, c. 20.
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