Docket: T-2118-10
Citation: 2012 FC 189
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, February 9, 2012
PRESENT: The Honourable
Mr. Justice de Montigny
BETWEEN:
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EDWARD BRUCE GENDRON
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision dated December 8, 2010,
by Marie‑Claude Landry, the chairperson of the disciplinary court (chairperson),
that the applicant is guilty of refusing to provide a urine sample pursuant to
subsection 49(1) of the Corrections
and Conditional Release Act, SC 1992, c 20 (Act).
[2]
The
applicant is alleging a breach of procedural fairness because the evidence was
not communicated to him. He also claims that the chairperson made an
unreasonable finding because no witness was heard to establish reasonable
grounds to believe that he committed an offence leading to the request for him
to provide a urine sample.
[3]
After
reviewing the file and hearing the submissions by counsel for the two parties,
the Court finds that this application for judicial review must be dismissed.
Facts
[4]
The
applicant is an inmate in the Cowansville Penitentiary. On August 31, 2010, Officer Marie-Michèle
Blouin, accompanied by Officer Lamy Deslauriers, saw the applicant leaving
another inmate’s cell, where there was a strong odour of an illegal substance.
[5]
On
September 1, 2010, Correctional Officer Marc Ferland asked to meet with the
applicant in order to obtain a urine sample in accordance with paragraph 54(a)
of the Act. The Notification to provide a urine sample indicates that Officer
Ferland provided the applicant with a copy of it. The Notification also
specifies that the applicant refused to provide a sample. The reason for this
refusal, as noted in the Notification, reads as follows: [translation] “You know that I am a pot
and hash user. That I buy and use it regularly. The subject wishes to resolve
the issue in disciplinary court with counsel”.
[6]
That
same day, the institutional head at the time, Nicolas Guérard, again asked the
applicant to provide a urine sample, explaining the consequences of his refusal.
Officer Guérard gave the applicant the opportunity to make representations on
his case, but he refused again without ever denying being found in another
inmate’s cell where illegal substances had been consumed. Officer Guérard also
noted on his observation report that the applicant refused to take a copy of
the Notification to provide a urine sample.
[7]
On
September 7, 2010, the applicant was charged with a serious offence for
refusing to provide a urine sample in accordance with paragraph 40(l) of
the Act. However, there was an error in the Notice of charge; while the date
and time of the offence were correct, the date in the box marked “sent to
inmate” was June 7, 2010, that is, three months before the alleged offence was
committed.
[8]
The
same error was committed in the offence report given to the other inmate, who
was then, for that reason, acquitted of the offence with which he was charged. The
chairperson, however, refused to give the applicant the same treatment on the
basis that she made a mistake in the other inmate’s case and was not obligated
to repeat it.
Impugned decision
[9]
The
hearing took place over three days, September 28, 2010, October 27, 2010, and
December 8, 2010. First, the chairperson rejected the applicant’s preliminary
objection that was based on the date error in the Notice of charge on the
ground that it was simply a clerical error that could be corrected.
[10]
Subsequently,
after hearing Officer Ferland’s testimony on October 27, 2010, the chairperson
determined that she had no other choice but to find the applicant guilty of the
offence set out in paragraph 40(l) of the Act because the applicant
admitted that he is a drug user and clearly showed his intent to not provide a
urine sample.
Issues
[11]
Counsel
for the applicant essentially raised the following two issues:
a. Does convicting
the applicant of a disciplinary offence breach the principles of natural justice
and procedural fairness insofar as there is no evidence that the Notice of
charge was given to the applicant and the Notice of charge contained no
reasonable grounds for the urine sample request?
b. Did the
chairperson of the disciplinary court err by convicting the applicant without
evidence of reasonable grounds for the urine sample request?
Analysis
[12]
It
is now settled law that procedural fairness issues must be examined on the
standard of correctness (see, for example, Ha v Canada (Minister of
Citizenship and Immigration), 2004 FCA 49, [2004] 3 FCR 195; Canadian Union of
Public Employees (CUPE) v Ontario (Minister of Labour), 2003 SCC 29 at
paragraphs 100-104, [2003] 1 S.C.R. 539; Sketchley v Canada (Attorney General),
2005 FCA 404 at paragraph 111, [2006] 3 FCR
392). However, questions of mixed fact and law are
assessed on the standard of reasonableness (Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190). Consequently, the Court must show deference with respect
to the second issue and intervene only if the chairperson’s finding does not
fall within the range of “possible, acceptable outcomes which are defensible in
respect of the facts and law”.
(a) Does convicting the applicant of a
disciplinary offence breach the principles of natural justice and procedural
fairness insofar as there is no evidence that the Notice of charge
was given to the applicant and the Notice of charge contained no reasonable
grounds for the urine sample request?
[13]
Under
section 25 of the Corrections
and Conditional Release Regulations, SOR/92-620, the Correctional
Service must produce a Notice of charge containing a description of 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 the date, time and
place of the hearing. The staff member must also issue the Notice of charge to
the applicant “as soon as practicable”.
[14]
The
applicant claimed that the Notice of charge was never issued to him and that no
evidence was provided to the effect that it was issued to him. Moreover, he
maintained that the Notice of charge did not describe the source of the
reasonable grounds to believe that he “[took] an intoxicant into [his] body”, contrary
to paragraph 40(k) of the Act. The reasonable ground was apparently in
the Notification to provide a urine sample and in the observation report by
Officer Marie‑Michèle Blouin, two documents that were apparently not
issued to the applicant. At first glance, these arguments cannot prevail.
[15]
We
should start with some principles governing penitentiary discipline properly
summarized by Justice Denault:
1. A hearing conducted by an
independent chairperson of the disciplinary court of an institution is an
administrative proceeding and is neither judicial nor quasi-judicial in
character.
2. Except to the extent there are
statutory provisions or regulations having the force of law to the contrary,
there is no requirement to conform to any particular procedure or to abide by
the rules of evidence generally applicable to judicial or quasi-judicial
tribunals or adversary proceedings.
3. There is an overall duty to act
fairly by ensuring that the inquiry is carried out in a fair manner and with
due regard to natural justice. The duty to act fairly in a disciplinary court
hearing requires that the person be aware of what the allegations are, the
evidence and the nature of the evidence against him and be afforded a
reasonable opportunity to respond to the evidence and to give his version of
the matter.
4. The hearing is not to be conducted as
an adversary proceeding but as an inquisitorial one and there is no duty on the
person responsible for conducting the hearing to explore every conceivable
defence, although there is a duty to conduct a full and fair inquiry or, in
other words, examine both sides of the question.
5. It is not up to this Court to review
the evidence as a court might do in a case of a judicial tribunal or a review
of a decision of a quasi-judicial tribunal, but merely to consider whether
there has in fact been a breach of the general duty to act fairly.
6. The judicial discretion in relation
with disciplinary matters must be exercised sparingly and a remedy ought to be
granted "only in cases of serious injustice" (Martineau No 2, p. 360).
Hendrickson v Disciplinary Court of Kent
Institution (Independent Chairperson), (1990) 32 FTR 296 at paragraphs 298-299,
cited with approval by Forrest v Canada (Attorney General), 2002 FCT 539
at paragraph 16, 219 FTR 539.
[16]
In
this case, I see no breach of the principles of procedural fairness. First, it
is apparent in the Notice of charge that the applicant refused to sign it, but still
received a copy of it. Second, the applicant never alleged that he did not
receive the Notice of charge during his disciplinary hearing. He claimed,
rather, that he should be given the same treatment as the other inmate who was
the subject of a similar offence report and who was acquitted because of the
date error that also occurred in his report.
[17]
I
also note that the chairperson gave the Correctional Service the opportunity to
prove the date on which the report was communicated to the applicant, if so
desired by his counsel, during the hearing on December 8, 2010. However, after
the hearing was suspended, counsel for the applicant did not ask for this
evidence and even seemed to admit that the Correctional Service evidence had
been established on this point.
[18]
Moreover,
it is well established that a breach of procedural fairness must be alleged at
the first possible opportunity. Counsel for the applicant maintained that he
was never given the opportunity to raise this issue because the chairperson had
convicted the applicant immediately. I am not persuaded of this. He could have,
when the hearing resumed, insisted that that evidence be provided, since the
chairperson had given him the opportunity to do so. His silence is now working
against him.
[19]
In
any event, no harm was demonstrated or even alleged. The applicant did not
argue that he was unaware of the charge against him, or that he had been unable
to submit his version of the facts. Indeed, he never denied refusing to provide
a urine sample, or even regularly consuming drugs. Under these circumstances,
the chairperson was completely justified in convicting him for the offence with
which he was charged.
[20]
Finally,
the following comments can be made about the fact that the offence report did
not contain reasonable grounds for why Mr. Gendron was asked to provide a urine
sample. First, Officer Ferland mentioned in his responses to the written examination
on his affidavit that he offered to give the applicant the observation report
written by Marie-Michèle Blouin describing her reasonable grounds to believe
that he had committed an offence, but that Mr. Gendron refused to take a copy
of it. Moreover, the chairperson was not bound by the strict rules of evidence
that are essential to judicial or quasi-judicial procedures, as seen above. Thus,
she was not obligated to require officers who have reasonable grounds to
provide testimonial evidence to that effect, especially since she gave the
opportunity, during the hearing on October 27, 2010, to counsel for
the applicant to call the two officers with those reasonable grounds to testify.
That offer went unanswered. The applicant cannot complain about this now. The
chairperson had no reason to doubt the good faith and credibility of the
statements contained in the Notice of charge and the observation reports. Finally,
the applicant knew full well why he was asked to provide a urine sample, and
there could be no ambiguity in his mind on this point.
[21]
In
short, I am of the opinion that the applicant did not demonstrate that the
rules of procedural fairness were not respected or that he was harmed in any
way.
b) Did the chairperson of the
disciplinary court err by convicting the applicant without evidence of
reasonable grounds for the urine sample request?
[22]
The
applicant relies on paragraph 54(a) of the Act to submit that the
chairperson erred by convicting him without having evidence before her that the
request for a urine sample was based on reasonable grounds, and while Officer Ferland
had no personal knowledge of the reasons required. The provision reads as
follows:
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Urinalysis
54. Subject to section 56 and subsection
57(1), a staff member may demand that an inmate submit to urinalysis
(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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Analyses d’urine
54. L’agent peut obliger un détenu à lui
fournir un échantillon d’urine dans l’un ou l’autre des cas suivants :
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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[23]
This
claim cannot be accepted. First, Officer Ferland was entitled to rely on the
observation report by Officer Marie-Michèle Blouin for reasonable grounds to
believe that the applicant had committed an offence. The Act does not provide
that he must personally have knowledge of the events on which the reasonable
grounds were based to believe that an inmate is committing or committed an
offence. The observation report written by the institutional head at the
relevant time, Mr. Guérard, also specifies that he met with the applicant,
at the request of Officer Ferland, further to the applicant’s first refusal to
submit to a urine test. At that time, he explained to the applicant that [translation] “in the absence of representations
on his part and after reading the information available to me in this case, we have
reasonable grounds to believe that he used . . . .” Despite
repeated requests, the applicant made no representations and refused all of the
requests made of him to provide a urine sample. It therefore seems that both
Officer Ferland and Officer Guérard had reasonable grounds to believe that the
applicant had committed an offence on the basis of the observation report
written by Officer Blouin.
[24]
With
respect to the fact that the reasons required were not proved during the
disciplinary hearing, the applicant has only himself to blame. Once again, Officer
Ferland testified (in his responses to the written examination on his affidavit)
that the applicant refused to take a copy of the Notification to provide a
urine sample and the observation report by Marie-Michèle Blouin. However,
counsel for the applicant stated that he would request a copy of the
observation report by Ms. Blouin during the hearing on October 27. However, no
request in this respect appears to have been made and no allegation regarding
the non-issuance of this report was raised when the hearing resumed on December
8, 2010. Finally, and this is undoubtedly the most important point, the
applicant never tried to explain to Officer Ferland, Officer Guérard or the
chairperson why he had refused to provide a urine sample. The decision by the
chairperson therefore arose from the evidence in the file and the lack of any
evidence to the contrary. In fact, the chairperson could not have made any
other finding, especially given that the applicant explicitly and voluntarily
stated that he is a regular user of illegal substances.
[25]
For
all of the above reasons, the application for judicial review must therefore be
dismissed, with costs.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the application for
judicial review is dismissed, with costs.
“Yves
de Montigny”
Certified
true translation
Janine
Anderson, Translator
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