Date: 20100224
Docket: T-1116-09
Citation: 2010 FC 171
Ottawa, Ontario,
February 24, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ANTHONY
COWDREY
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application for judicial review of a decision by an independent
chairperson (the Chairperson), dated November 6, 2008, in which the applicant
was found guilty of creating or participating in an activity that is likely to
jeopardize the security of the penitentiary, contrary to paragraph 40(m)(i) of
the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act).
[2]
The
applicant requests:
1. an order quashing
the decision of the Chairperson;
2. an order in the
nature of mandamus compelling Correctional Services Canada (CSC) to
delete, correct or amend all information related to the conviction from all
documents authored for the applicant by CSC and provide written notice to all
agencies or organizations that may have received such information, including
the National Parole Board; and
3. costs.
Background
[3]
The
applicant was an inmate at Fenbrook Institution in Ontario during 2008
serving a four year sentence. On July 23, 2008, the applicant was alleged to
have participated in the removal of a bed from a cell and placing it on an
upper tier. The respondent alleges that it was done to protest the
institution’s new policy of putting two inmates into a single cell. Two CSC
officers claimed to have witnessed the applicant’s participation and included
the applicant’s name in observation reports. The applicant denies any
involvement.
[4]
Two
days later, the applicant was charged with an institutional offence pursuant to
paragraph 40(m)(ii) of the Act, “creates or participates in any other activity
that is likely to jeopardize the security of the penitentiary”.
[5]
The
matter was to be heard at institutional court on July 31, 2008, but was adjourned
a total of eight times; twice at the request of the applicant, four times at
the request of CSC and twice because the applicant was unavailable. The
applicant was given notices prior to each scheduled hearing which stated in
part, “I would once again wish to offer you the opportunity to contact Counsel.
Duty Counsel will also be available between 1230 and 1300 Hours on the
Scheduled Date for All Major Court Hearings.” Each hearing was scheduled for
1300.
[6]
On
November 6, 2008, the Chairperson elected to proceed despite another request
for an adjournment by the applicant and heard the evidence from one CSC
officer. The applicant had still not consulted with a lawyer and duty counsel
was not available that day. He pleaded not guilty but did not present a
defence, indicating that he still wished to consult a lawyer. He was found
guilty of the offence charged and was fined $20. The applicant challenges the
decision to proceed and the Chairperson’s ultimate decision in this judicial
review.
[7]
On
October 9, 2008, the applicant was placed in dry cell for suspected possession
of narcotics. On October 22, 2008, a security level review was completed for
the applicant and was locked in the offender management system (OMS) on
November 5, 2008. On March 2, 2009, the applicant was transferred to maximum
security Millhaven Institution. On July 2, 2009, the applicant was released to
Keele Community Centre, where he currently resides.
Issues
[8]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Did the 15 week delay
render the process unfair or contrary to law?
3. Did the
Chairperson’s decision to proceed in the absence of legal counsel for the
applicant constitute a breach of procedural fairness?
4. Was the
Chairperson’s decision reasonable?
Applicant’s Written Submissions
[9]
The
applicant submits that the 15 week delay between the time of the charge and the
decision was unfair and contrary to the Corrections and Conditional Release
Regulations, SOR/92-620 (the Regulations), section 28 of which requires a
disciplinary hearing to take place “as soon as practicable”. Though the
applicant made two requests for adjournment, the last of which would have had
his matter proceed on September 25, 2008. The further six week delay resulted
in difficulties with the only testifying officer’s memory.
[10]
The
applicant submits that it was unfair of the Chairperson to proceed without the
applicant having access to counsel. The seriousness of the conviction and the
complexity of the issues militated in favour of either proceeding on a day when
duty counsel would have been available. The applicant made repeated requests
for representation. The conviction was serious because not only was there a
fine, but the applicant was required to enter into a behavioral contract and
was relocated to a unit of restricted movement. Duty counsel was available
October 23, 2008, the last day the CSC had requested an adjournment, and would
have been available again on November 20, 2008. The applicant could not afford
private counsel.
[11]
Finally,
the applicant submits that the evidence presented was insufficient to find the
applicant guilty beyond a reasonable doubt. The decision was unreasonable. The
only witnessing officer to give evidence could not remember specific events.
The applicant’s claim that he was doing laundry and was merely walking by the
scene, was not refuted and raises a sufficient doubt. Nor was there any
evidence to establish an essential element of the charge; jeopardy to the
security of the penitentiary.
Respondent’s Submissions
[12]
The
respondent submits that the requirement that disciplinary matters be heard as
soon as practicable was not contravened. It was not unreasonable for the
Chairperson to proceed with the hearing on November 6, 2008, particularly when
the witnessing officer was present. Similarly, it was not unreasonable for the
Chairperson to refuse the applicant’s third request for an adjournment on that
day, particularly when the alleged offence took place in July, some 15 weeks
earlier.
[13]
The
respondent defends the decision of the Chairperson to proceed without the applicant
having consulted a lawyer. The right to counsel is not absolute. Procedural fairness
and the Commissioner’s directive mandate that inmates up on disciplinary
charges be given a reasonable opportunity to retain counsel. Nor did the
complexity of the matter at hand require counsel. It was a single charge
without any complex factual or evidentiary issues. The only sanction imposed
was a $20 fine. There was no prospect of solitary confinement or loss of early
release eligibility. The charge was at most only a minor factor in the
applicant’s subsequent transfer. Moreover, the applicant was given reasonable
opportunities to contact counsel and could have proceeded on July 31, 2008 when
duty counsel was present. In cross-examination, the applicant stated that he
attempted to contact his lawyer, but did not give any reasons as to why the
lawyer did not attend at the hearing.
[14]
The
respondent submits that the Court should exercise judicial restraint in prison
administrative decisions. The decision of the Chairperson was certainly
reasonable. Two officers witnessed the applicant’s participation and one
officer testified that the activity was likely to jeopardize the security of
the penitentiary. The applicant did not provide any evidence to the contrary.
Analysis and Decision
[15]
Issue
1
What is the appropriate
standard of review?
The ultimate decision of the
Chairperson regarding the applicant’s guilt is one of mixed fact and law
involving the assessment of evidence in light of the relevant statutory
provisions. According to Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9 (QL) at paragraph
53, the standard of reasonableness will apply.
[16]
The present case primarily involves issues of procedural fairness
to which the standard of correctness invariably applies (see Bowden v. Canada (Attorney
General), 2008 FC 580, [2008] F.C.J. No. 764 (QL) at paragraph 9).
[17]
Administrative
tribunals have discretionary control over their procedures, often including the
power to grant adjournments. The overarching duty to maintain a fair process is
paramount and unassailable. Thus, to the extent that a discretionary decision
to grant or refuse an adjournment is alleged to have resulted in a breach of
the duty of fairness, no deference is due
[18]
I
wish to first deal with Issue 3.
[19]
Issue
3
Did the Chairperson’s
decision to proceed in the absence of legal counsel for the applicant
constitute a breach of procedural fairness?
The respondent correctly
asserts that there is no absolute right to counsel in administrative
proceedings such as the disciplinary proceedings in the present case. The
respondent seems to recognize that person such as the applicant have a right to
counsel as duty counsel is usually available to an inmate in the one-half hour
period before the hearing.
[20]
In
the present case, duty counsel was not available prior to the haring on
November 6, 2008. The applicant requested counsel on a number of occasions at
the hearings. The applicant also requested an adjournment in order to speak to
counsel. The Chairperson refused the requests. The transcript reads in part as
follows (applicant’s record, page 27):
MR. COWDREY: I’d like to have a
lawyer here.
JUDGE: Well, we’ll
have to proceed, we don’t have a lawyer.
MR. COWDREY: I can’t adjourn it.
JUDGE: No.
MR. COWDREY: And why is that?
JUDGE: ‘Cause it’s
been adjourned enough.
MR. COWDREY: I’ve only adjourned
it twice.
JUDGE: This has
been adjourned enough, this is . . .
MR. COWDREY: Not on my . . .
JUDGE: . . . I
don’t care. This took place in July . . .
MR. COWDREY: Not on my part.
JUDGE: . . . and I
want this over with today.
And at page 28 of the tribunal record:
MR. COWDREY: Why is it taking so
long to deal with it then?
JUDGE: It’s been
adjourned different times by both you and the institution, and it’s here today,
the officer’s here today. I’m hearing it today.
It would appear that the denial of an
adjournment was based on the fact the matter had been adjourned before and the
need to complete the hearing.
[21]
In
Smith v. Fort Saskatchewan Correction Centre, 2002 ABQB
1044 (Can. LII.), Mr.
Justice Clarkson, when speaking about when an inmate should be given the right
to counsel stated at paragraph 36:
The policy upon which the board purported
to act is quite close to the common law test previously identified. The policy
directs the chairperson of the board to consider seriousness, complexity and
capacity. The policy also requires the Chairperson of the board to consider the
need for reasonable speed of adjudication and the need for fairness. In my
view, the contest is between expediency and fairness, that contest is decided
by consideration of the factors of seriousness, complexity and capacity.
There, although a policy was relied upon,
the policy requirements were similar to the common law.
[22]
Applying
these factors to the facts of this case, I find that in the circumstances, the
duty of fairness required the Chairperson to have heeded the applicant’s
repeated requests.
Seriousness
[23]
The
charge faced by the applicant in this case was serious. The potential
punishment if found guilty is contained in subsection 44(1) of the Corrections
and Conditional Release Act, S.C. 1992, c. 20:
|
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.
|
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.
|
[24]
The
applicant was fined $20 which is equivalent to more than three days of pay for
him. The existence of a conviction on the charge would also be a factor in his
security classification being increased. The conviction can also be used by CSC
if the applicant is returned to federal custody. As well, information about the
conviction can be provided to provincial police upon their request. In my view,
the charge was a serious charge.
Complexity
[25]
At
first glance, the charge may not seem to be complex but on a closer study, it
is more complex. It deals with whether the applicant’s alleged conduct was
likely to jeopardize the security of the penitentiary. The cross-examination of
correctional officers may well have been fruitful. It also dealt with the
applicant having to present his defence to the charge.
Capacity of the Applicant to Represent Himself
[26]
A
review of the transcript makes it obvious that the applicant had no capacity to
represent himself. He did not understand the process and asked to obtain
counsel. He did not present a defence. He did not understand how to conduct a
cross-examination.
[27]
Taking
these factors into account, I am of the view that the Chairperson made a
reviewable error in not adjourning the matter so that the applicant could have
obtained counsel. This was a breach of the principles of natural justice. The
Chairperson’s decision must be set aside and the matter referred back to a
different chairperson for redetermination if that is practical with the passage
of time.
[28]
It
follows from this finding that all information relating to the conviction and
the events giving rise to the conviction should be deleted, corrected or
amended in any documents provided to other parties or in any documents authored
for the application for Correction Services Canada. This would include the
National Parole Board.
[29]
Because
of my finding on Issue 3, I need not deal with the other issues.
[30]
The
applicant shall have his costs of the application.
JUDGMENT
[31]
IT
IS ORDERED that:
1. The application for
judicial review is allowed and the decision of the Chairperson is set aside and
the matter is referred to a different chairperson for redetermination. The
respondent may elect not to have the matter redetermined.
2. All information
relating to the conviction and the events giving rise to the conviction should
be deleted, corrected or amended in any documents provided to other parties or
in any documents authored for the application for Correctional Services Canada.
This would include the National Parole Board.
3. The applicant shall
have his costs of the application.
“John
A. O’Keefe”
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