Date: 20100128
Docket: T‑1117‑09
Citation: 2010 FC 94
Ottawa, Ontario,
January 28, 2010
PRESENT: The
Honourable Mr. Justice Beaudry
BETWEEN:
MARIO CYR
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application for judicial review of
the decision of Jean Claude Lagacé, Independent Chairperson of the Disciplinary
Court (Chairperson), dated June 10, 2009, finding Mario Cyr (the
applicant) guilty of the disciplinary offence set out at section 40 of the
Corrections and Conditional Release Act, S.C. 1992, c. 20 (Act) and
ordering him to pay a $25 fine, with 6 days’ segregation suspended for 90 days
(page 15, Applicant’s Record).
Facts
[2]
The applicant is currently serving a term of
imprisonment at the penitentiary in Drummondville. On March 25, 2009, he received a Notification to Provide a
Urine Sample in institution under paragraph 54(b) of the Act.
That notice was issued by random selection as part of a urinalysis program.
[3]
Under the Corrections and Conditional Release
Regulations (Regulations), the applicant had two hours to provide the
sample. The applicant tried twice, without success. He explained to the officer
that he was unable to provide the sample without defecating. The correctional
officers then offered to perform a strip search. Apparently, the purpose of
such a search was to ensure that the applicant did not have on him any object he
might use to falsify the test. The officers could thus allow the applicant to
produce the sample in private in a washroom after the search. The purpose of
the search was not explained to the applicant. He refused the search, but
offered to go to the washroom and bring back the sample. The officers refused
that offer. The applicant left the room before the end of the two‑hour
period without providing a sample. Under subsection 66(2) of the
Regulations, failure to provide a sample is considered a refusal to do so.
Consequently, an offence report and a notice of charge were issued against him.
[4]
The disciplinary hearing took place on May 27,
2009. The applicant and the two correctional officers testified. The applicant
testified that he had drunk several glasses of water in an attempt to
facilitate production of the sample, but that he was still unable to do so
without defecating. According to him, his inability to provide a urine sample
was not wilful. One of the officers stated that he had not explained to the
applicant the reason for offering the strip search because the applicant could
easily deduce the reason for it.
[5]
On June 10, 2009, the Chairperson issued
his oral sentence and found the applicant guilty of the disciplinary offence.
That decision is the subject of this application.
Impugned
decision
[6]
The Chairperson ordered the applicant to pay a
$25 fine, with 6 days’ segregation suspended for 90 days. In his reasons, he
stated that the applicant had made the decision to leave by saying that it was
impossible for him to urinate, since it would be impossible for him to do so
without defecating. The applicant therefore left and decided not to provide the
sample. The Chairperson added that the evidence pertaining to the offer of a
strip search was immaterial to his decision.
[7]
The Chairperson then stated that he had
considered the applicant’s defence and that, unfortunately, he did not find it
acceptable. He therefore found, without a reasonable doubt, that the applicant
was guilty.
Issues
[8]
A single issue is material: are there adequate
reasons for the decision?
[9]
The application for judicial review will be
allowed for the reasons that follow.
Relevant legislation
[10]
The excerpts from the legislation at issue are annexed
to this decision.
Applicant’s
allegations
Adequacy of
reasons
[11]
The applicant alleges that the Chairperson’s
decision is laconic and that several issues are still unclear. The applicant
submits that it is impossible to know if the Chairperson did not believe his
statements or for what reason the Chairperson did not accept his defence.
According to the applicant, the reason that he was found guilty can only be
speculated. Therefore, this Court’s intervention is necessary.
Grounds for
defence
[12]
The applicant submits that his defence is based
on an involuntary act on his part. The Chairperson cannot ignore that defence
without compromising procedural fairness.
[13]
The applicant adds that the burden of proof
imposed on the correctional service is the same as in criminal matters, that
is, proof beyond a reasonable doubt. Failure to apply that standard is a
reviewable error. The applicant points to the following remarks by the
Chairperson (page 84, Applicant’s Record):
[translation]
Because, you
know, Mr. Tabah, this is a penitentiary, here. I am not rendering my decision right
now, but I have observed for some years that inmates are often very creative.
Understand me? And this one, for example, this defence, I can tell you that
this is the first time in nearly ten (10) years that I have heard it. That does
not mean that it has no merit.
[14]
The applicant alleges that from the transcript, it
may be thought that the Chairperson did not accept the applicant’s defence
because the applicant had to support it with expert testimony to show that it
was plausible (page 91, Applicant’s Record). That is an error of law,
since in Durie v. Canada (Attorney General), 2001 FCT 22, 201 F.T.R. 8, the Court found that medical
evidence was not required to support a defence of a reasonable excuse in a
similar case.
Credibility and
burden of proof
[15]
The applicant acknowledges that it was open to
the Chairperson to reject his defence on credibility grounds. However, he
submits that it was the Chairperson’s duty to explain why the excuse provided
did not raise a reasonable doubt. Since the Act requires proof beyond a
reasonable doubt, the applicant states that the Chairperson must follow the
process set forth in R. v. W.(D.) [D.W.], [1991] 1 S.C.R. 742.
According to him, the Chairperson failed to do so and, therefore, altered the
standard of proof, which warrants this Court’s intervention.
Respondent’s allegations
[16]
The respondent alleges that, contrary to what
the applicant submits, the Chairperson considered and analyzed the applicant’s
defence. In the respondent’s opinion, the Chairperson dealt with all of the evidence,
which was clear and uncontradicted, and did not accept the defence or, in other
words, did not believe the applicant. He adds that this finding is reasonable
given that the officers gave the applicant the opportunity to go to the
washroom alone, but on the condition that he first submit to a strip search.
However, the applicant refused that alternative for no good reason.
[17]
The respondent submits that the Chairperson
considered the applicant’s defence, but did not accept it. Accordingly, there
was no doubt that the applicant had refused to provide the urine sample
demanded. The Chairperson finding the applicant guilty is reasonable, since he
had been satisfied beyond a reasonable doubt that the applicant had committed
the offence of which he was accused.
Analysis
Standard of
review
[18]
The issue of adequate reasons is a question of
procedural fairness. Questions of procedural fairness are questions of law which
are subject to the correctness standard (Sweet v. Canada (Attorney General), 2005 FCA 51, 332 N.R. 97, at paragraph 16).
[19]
It may be said that the Chairperson’s failure to
rule on both the defence relied on and the applicant’s credibility raises
questions of procedural fairness. As the Federal Court of Appeal wrote in Ayotte
v. Canada
(Attorney General), 2003 FCA 429, 240 D.L.R. (4th)
471, at paragraph 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. . . .
[20]
In this case, I believe that the Chairperson’s
errors on the question of the defence and his failure to make a credibility
ruling warrant this Court’s intervention.
Are there
adequate reasons for the decision?
[21]
The applicant alleges that the Chairperson’s
decision is laconic and that without speculating, it is impossible to know if
the Chairperson did not believe the applicant or for what reason the
Chairperson did not accept his defence.
[22]
I believe that the remarks of Justice Binnie in R.
v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 may be of assistance. He
mentions that the purpose of reasons is to preserve and enhance meaningful
appellate review of the correctness of the decision (paragraph 25). He
writes that “[t]he threshold is clearly reached . . . where the
appeal court considers itself unable to determine whether the decision is
vitiated by error” (paragraph 28). In Ayotte, the Federal Court of
Appeal recognized that persons charged with disciplinary offences have the same
procedural safeguards as those in ordinary trials, in terms of defences, and the
same goes for the adequacy of reasons.
[23]
In this case, it is impossible to determine for
which reasons the applicant was found guilty. The only thing known for certain is
that the Chairperson did not deem the offer of a strip search to be relevant.
[24]
In that same vein, it is impossible to know whether
the Chairperson rejected the applicant’s defence merely because he did not
believe the applicant or because he found his defence implausible. The
following statement, without further explanations or details, is inadequate and
requires this Court’s intervention:
[translation]
I have given
thought, sir, to your defence. Unfortunately, I believe that it is unacceptable
to me. . . . I find, without a reasonable doubt, that you are guilty”
(page 9, Applicant’s Record).
[25]
The Court acknowledges that when decisions are
delivered orally, some phrasing may be difficult to understand. However, the
parties must know the true reasons relied on by the decision‑maker in
reaching his or her conclusion. Regrettably, that is not the case here. When it
is necessary to speculate or imagine which evidence the conclusion is based on,
then, as held by this Court, there is an absence of reasons for the decision.
[26]
The parties left the award of lump sum costs up
to the discretion of the Court.
JUDGMENT
THIS COURT ORDERS that the application
for judicial review be allowed. The file is referred back to a different
Chairperson for redetermination. The respondent will be required to pay lump
sum costs in the amount of $1,000 plus GST.
“Michel Beaudry”
Certified true
translation
Sarah Burns
ANNEX
Corrections and
Conditional Release Act, S.C. 1992, c. 20.
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40. An inmate commits a disciplinary
offence who
. . .
(l) fails or refuses to provide a
urine sample when demanded pursuant to section 54 or 55;
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.
(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.
54. Subject to section 56 and
subsection 57(1), a staff member may demand that an inmate submit to
urinalysis
. . .
(b) as part of a prescribed random
selection urinalysis program, conducted without individualized grounds on a
periodic basis and in accordance with any Commissioner’s Directives that the
regulations may provide for; or
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40. Est coupable d’une infraction
disciplinaire le détenu qui :
[…]
l) refuse
ou omet de fournir l’échantillon d’urine qui peut être exigé au titre des
articles 54 ou 55;
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.
(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.
54. L’agent peut obliger un détenu à lui
fournir un échantillon d’urine dans l’un ou l’autre des cas suivants :
[…]
b) il le
fait dans le cadre d’un programme réglementaire de contrôle au hasard,
effectué sans soupçon précis, périodiquement et, selon le cas, conformément
aux directives réglementaires du commissaire;
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Corrections and Conditional Release
Regulations, SOR/92‑620.
|
66. (1) A sample shall be collected in
the following manner:
(a) a collector shall be of the
same sex as the donor;
(b) the collector shall ensure
that the donor washes the donor’s hands before providing a sample;
(c) the collector shall provide
the donor with a container for the sample and shall supervise as the donor
provides the sample;
(d) the collector shall give the
donor up to two hours to provide a sample, from the time of a demand;
(e) the collector shall ensure
that the donor is kept separate from any other person except the collector
and is supervised during the two hour period referred to in paragraph (d);
(f) once the sample has been
provided, the collector shall, in the presence of the donor,
(i) seal the container with a pre‑numbered
seal,
(ii) affix a label identifying the sample
in such a manner that the identity of the donor is not disclosed to the
laboratory,
(iii) initial the label to certify that
the container contains the sample provided by that donor,
(iv) request the donor to initial the
label and to certify in writing that the sample in the container was provided
by that person, and
(v) where the person is unable or refuses
to comply with a request referred to in subparagraph (iv), initial the
label in the place of the donor and certify in writing, in the presence of
another person, that the person who provided the sample was unable or refused
to comply with the request; and
(g) the collector shall maintain a
record that indicates the number on the container that corresponds to the
name of the donor.
(2) Where a person fails to provide a
sample in accordance with subsection (1), the person shall be considered
to have refused to provide the sample.
|
66. (1) La prise d’échantillon d’urine se
fait de la manière suivante :
a) l’échantillonneur
doit être du même sexe que la personne qui fournit l’échantillon d’urine;
b) il doit
veiller à ce que la personne se lave les mains avant de fournir l’échantillon
d’urine;
c) il doit
remettre à la personne un contenant pour son échantillon d’urine et la
surveiller pendant qu’elle s’exécute;
d) il doit
accorder un délai de deux heures à la personne pour fournir l’échantillon d’urine
à compter du moment de sa demande;
e) il doit
veiller à ce que la personne soit gardée à l’écart de toute autre personne
que lui‑même et reste sous surveillance pendant le délai de deux heures
prévu à l’alinéa d);
f) lorsque
la personne lui remet l’échantillon d’urine, il doit, devant elle :
(i) sceller le contenant avec un sceau
préalablement numéroté,
(ii) apposer sur le contenant une
étiquette désignant l’échantillon de manière que l’identité de la personne ne
soit pas révélée au laboratoire,
(iii) parafer l’étiquette pour attester
que le contenant contient l’échantillon d’urine fourni par cette personne,
(iv) demander à la personne de parafer l’étiquette
et d’attester par écrit que l’échantillon d’urine dans le contenant provient
d’elle,
(v) si la personne est incapable ou
refuse de se conformer à la demande visée au sous‑alinéa (iv),
parafer à sa place l’étiquette et attester par écrit, en présence d’un
témoin, que la personne est incapable ou refuse de se conformer à cette
demande;
g) il doit
garder un registre indiquant le numéro de contenant et le nom qui y
correspond.
(2) Le défaut de fournir un échantillon d’urine
conformément au paragraphe (1) est réputé être un refus de le fournir.
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