Date: 20110517
Docket: T-1351-10
Citation: 2011 FC 560
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Montréal, Quebec, May 17, 2011
PRESENT: The
Honourable Mr. Justice Lemieux
BETWEEN:
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STEVE BOISSEL
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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
I Introduction
[1]
By this
application for judicial review, Steve Boissel (applicant), an inmate at the Leclerc
penitentiary, is asking the Court to set aside his disciplinary conviction
dated July 22, 2010, by the Chairperson of the disciplinary court, who found
him guilty of refusing or failing to provide, on March 4, 2010, a
urine sample when demanded under the Corrections and Conditional Release Act (Act).
[2]
Paragraph
40(l) of the Act reads as follows:
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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;
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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;
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[3]
Subsection
43(3) of the Act stipulates the following:
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43.
. . .
(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.
[Emphasis added.]
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43.
…
(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.
[Je souligne.]
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[4]
On
March 4, 2010,
the applicant received a Notification to Provide a Urine Sample in Institution.
It is undisputed that the applicant did not provide the said sample.
[5]
Before
being called for the urine test, the applicant testified, and this has not been
contradicted, that he had drunk a litre of water while exercising at the gym
and urinated twice. He also testified that, when the officers arrived to take
him for the test, he had drunk more because [translation]
“he no longer had the urge to go”. Once in the sample location, he drank
another three to four glasses to help him urinate.
[6]
He
informed Officer Hill, who was accompanying him, that he was unable to urinate
in front of him given the fact that he was assaulted when he was younger. He suggested
that Officer James Hill strip search him so that he would, afterwards, be able
to provide his sample in private, an alternative that had been successful when
he had been an inmate at the Drummondville penitentiary. This alternative was
refused.
[7]
It is
undisputed that he did not try to urinate in the sense that he did not pull
down his pants; however, he stayed at the sample location for the required two
hours in case he had the urge to urinate.
[8]
The same
day, Officer Hill filed an offence report describing the situation as follows:
[translation] “the inmate was
unable to provide a urine sample after the prescribed two hours”. He also
noted [translation] “P.S. no
attempt.”
II Disciplinary court’s decision
[9]
The context
of the disciplinary court’s decision is important. That was not the first time
the applicant had appeared before the Chairperson of the disciplinary court. He
had appeared before him on February 25, 2010, accused of having failed
or refused to provide a urine sample on a prior occasion. He had pleaded not
guilty raising the same lawful excuse on the same ground, that is, his
inability to urinate in front of another person. The disciplinary court had acquitted
him [translation] “on a reasonable
doubt. I had a doubt, at the time”, indicated the Chairperson. He added:
[translation]
I can tell you that I have
carefully analyzed the case law since then, namely, the issue of reverse onus
and I . . .
The problem is that word seems to have
spread and that similar arguments are often given in numerous establishments.
The important test is: am I convinced
that it is a lawful excuse? And I have stated repeatedly that my decision
dated February twenty-fifth (25) was an error on my part. I prefer to say this right
off. (Applicant’s Record, page 55)
[Emphasis
added.]
[10]
During the
arguments by counsel for the applicant, the disciplinary court began discussing
two judgments: (1) Ayotte v. Canada (Attorney General) decided by the
Federal Court of Appeal, 2003 FCA 429, and (2) Durie v. Canada (Attorney
General), 2001 FCT 22, a decision by Justice McKeown of the Federal
Court. The two cases dealt with the same problem as the one before me: an
inmate’s failure to urinate.
[11]
During
this discussion, counsel for Mr. Boissel stated the following [translation] “only a doubt needs to be raised
on this issue and no higher burden lies on the accused”. In reply, the disciplinary
court stated the following:
[translation]
(1) This is what is important,
because in my opinion, the issue of beyond a reasonable doubt applies to the
offence committed and not the excuse. And, what I just mentioned benefits
both sides equally.
(2) I think it is clear; the
evidence shows that the offence was technically committed. You will see
why I say “technically”, it is that he did not provide the sample
within those two hours (2:00); therefore, there is no reasonable doubt in
that respect.
(3) From that point on, the burden
shifts to the inmate and I must ask myself the question: am I satisfied, as
independent Chairperson, which is my prerogative, that I was presented with
a lawful excuse?
[12]
The disciplinary
court cited the following excerpt from Durie, by Justice McKeown:
[5] . . . The onus of proof is on the Respondent (prosecutor)
in inmate disciplinary hearings. The onus shifts to the Applicant (accused)
when the Respondent has shown that the offence has taken place and the
Applicant is offering lawful excuse. The Chairperson erred in requiring
medical evidence and/or documentation. The Applicant is entitled to offer
evidence on lawful excuse and the Chairperson should weigh the evidence and
determine whether it constitutes lawful excuse. The Applicant is not required
to produce medical evidence or documentary evidence, but in many cases it would
be in the Applicant's interest to do so. There is no standard type of evidence
that is required by law.
[Emphasis added]
[13]
The disciplinary
court did not cite Justice McKeown’s approval that the Chairperson had answered
the question properly when she [the Chairperson] stated:
. . . in terms of Criminal law . . .
, if this was a Criminal case, you’ve certainly raised a reasonable doubt.
[Emphasis added]
[14]
The disciplinary
court agreed with the statement of counsel for Mr. Boissel that when an accused
argues a lawful excuse, the Chairperson of the disciplinary court must weigh
the evidence and determine whether it is in fact a lawful excuse (emphasis
added by the disciplinary court), and added the following:
[translation]
This is not a question of
raising a reasonable doubt; if it were, once the excuse submitted was
plausible, meaning theoretically feasible, the person would automatically be acquitted.
The independent Chairperson is granted
the prerogative to decide whether it is a lawful excuse. It is not a
question of beyond a reasonable doubt . . .
Mr. Boissel, or anyone else for that
matter, does not have a higher burden. He must merely raise an excuse, not a
doubt, a lawful excuse. And determining the lawfulness or unlawfulness of
that excuse is up to the independent Chairperson.
[Emphasis
added.]
[15]
During his
argument before the disciplinary court, counsel for Mr. Boissel insisted (1) on
the importance of credibility in evaluating the lawful excuse defence presented
by the accused; (2) that, in any event, the disciplinary court had to apply the
principles stated by the Supreme Court of Canada in R. v. W (D.), [1991],
1 S.C.R. 742; (3) that his client was credible; and (4) that his lawful
excuse defence must be assessed on a balance of probabilities.
[16]
In reply, the
Chairperson reacted in the following way:
·
At page 54
of the hearing transcript (transcript), he accepted that Mr. Boissel had informed
Officer Hill that he was unable to urinate in front of him but [translation] “nevertheless there was
no attempt. And I have tightened my criteria for evaluating the lawful excuse
. . . ”.
[Emphasis
added.]
·
Repeated
several times that his decision to acquit him on February 25, 2010,
was erroneous (transcript at pages 54, 57, 60, 63) and that he had revised his
position (transcript, page 57).
·
Repeated
several times that Mr. Boissel had been required to make an attempt to urinate
(transcript, page 57).
·
Found, in
several areas, that Mr. Boissel had not convinced him that [translation] “it is a lawful
excuse” and that he was not satisfied (transcript at pages 57, 58, 59,
63).
·
However, at
page 64, the Chairperson stated:
[translation] “You
must at the very least make an attempt because . . . I am not trying to tell
you that if you had made an attempt, I would have come back and told you that I
am convinced”.
III Analysis
a) Standard of
review
[17]
The issue
Mr. Boissel raised is whether the Chairperson of the disciplinary court breached
procedural fairness in the disciplinary hearing by imposing on the applicant
the burden of proving his lawful excuse defence rather than requiring that he merely
raise a reasonable doubt. This issue is a question of law. It follows that the standard
of review is correctness.
b) Discussion and conclusion
[18]
In Ayotte,
above, the accused argued before the disciplinary court his inability to
provide the urine sample despite reasonable efforts. Justice Létourneau indicates,
at paragraph 17 of his reasons, that “ . . . this defence amounted to saying that the
elements of the actus reus
of the offence that he was charged with - be it the omission or the act of
refusal - were missing.” In other words, Justice Létourneau believes that the
defence was that his refusal or omission had been involuntary. The
guilty verdict was set aside on the ground that the Chairperson of the disciplinary
court had not ruled on this defence. Justice Létourneau states the following at
paragraph 20 of his reasons: “Similarly, he could weigh and assess the evidence submitted
by the appellant in support of his defence . . . ”. He adds the following:
[22] Moreover, the chairperson of the
disciplinary court misdirected himself on the law in this case where
credibility was important because all of the evidence rested on the
contradictory testimony of the two witnesses. Even if he did not believe the
appellant's testimony, he had to acquit him if a reasonable doubt subsisted as
to his guilt. Even if he did not believe the appellant's deposition, he should
have examined it in the context of the evidence as a whole and the reasonable
inferences that he could draw from each and every piece of evidence. But after
that examination he had to acquit him if he was not convinced of his guilt
beyond a reasonable doubt. A reading of the transcript of the arguments clearly
indicates that the chairperson of the disciplinary court did not conduct this
exercise. He was content to make an inappropriate equation between the
appellant's guilt and his absence of credibility, thereby altering the standard
of proof required by the Act to support a guilty verdict.
[Emphasis
added.]
[19]
Counsel
for Mr. Boissel, before this Court, raised the decision of the Supreme Court of
Canada in R. v. Fontaine, [2004] 1 S.C.R. 702 on the issue of determining
the nature of the burden on Mr. Boissel. In that case, Mr. Fontaine had submitted
a defence of mental disorder automatism. It was Justice Fish who wrote the
reasons of the Court.
[20]
What
interests us in that decision is the distinction Justice Fish makes between the
two types of burdens that may apply when an accused raises a defence: evidential
or persuasive. He explains, at paragraph 11 of his reasons, that the evidential
burden is not a burden of proof as it determines whether an issue should be
left to the trier of facts whereas the persuasive burden determines how the
issue should be decided. He specifies the distinction at paragraph 12 as follows:
12 These are fundamentally different
questions. The first is a matter of law; the second, a question of fact. Accordingly,
on a trial before judge and jury, the judge decides whether the evidential
burden has been met. In answering that question, the judge does not evaluate
the quality, weight or reliability of the evidence. The judge simply
decides whether there is evidence upon which a properly instructed jury could
reasonably decide the issue.
[Emphasis added.]
[21]
At
paragraph 14, he states that the evidential burden is discharged “if there is some evidence upon
which a properly instructed jury could reasonably decide the issue.”
[22]
According
to Justice Fish, in some instances, the proponent of an issue bears both the persuasive
and the evidential burdens, but this is not invariably the case and he explains
that this depends on whether it is a “reverse onus” defence. Paragraphs 52 to
57 of his reasons are as follows:
52 In some instances, the proponent
of an issue bears both the persuasive and the evidential burdens. But this is
not invariably the case.
53 On the ultimate issue of guilt,
the Crown bears both burdens. The Crown’s persuasive burden on this issue can
only be discharged by proof beyond a reasonable doubt. Accordingly, as
McLachlin J. explained in Charemski, supra, the case against the
accused cannot go to the jury unless there is evidence in the record upon which
a properly instructed jury could rationally conclude that the accused is guilty
beyond a reasonable doubt.
54 In the case of “reverse onus”
defences, such as mental disorder automatism, it is the accused who bears both
the persuasive and the evidential burdens. Here, the persuasive burden is
discharged by evidence on the balance of probabilities, a lesser standard than
proof beyond a reasonable doubt. Reverse onus defences will therefore go to the
jury where there is any evidence upon which a properly instructed jury, acting
judicially, could reasonably conclude that the defence has been established in
accordance with this lesser standard.
55 With respect to all other
“affirmative” defences, including alibi, duress, provocation and others
mentioned in Cinous, at para. 57, the persuasive and the evidential
burdens are divided.
56 As regards these “ordinary”, as
opposed to “reverse onus” defences, the accused has no persuasive burden at
all. Once the issue has been “put in play” (R. v. Schwartz, [1988] 2
S.C.R. 443), the defence will succeed unless it is disproved by the
Crown beyond a reasonable doubt. Like all other disputed issues, however,
defences of this sort will only be left to the jury where a sufficient
evidential basis is found to exist. That foundation cannot be said to exist
where its only constituent elements are of a tenuous, trifling, insignificant
or manifestly unsubstantive nature: there must be evidence in the record upon
which a properly instructed jury, acting judicially, could entertain a
reasonable doubt as to the defence that has been raised.
57 From a theoretical point of view,
“reverse onus” defences and “ordinary affirmative defences” may thus be thought
to be subject to different evidential burdens. But in this as in other branches
of the law, pure logic must yield to experience and, without undue distortion
of principle, to a more practical and more desirable approach. In determining
whether the evidential burden has been discharged on any defence, trial
judges, as a matter of judicial policy, should therefore always ask the very
same question: Is there in the record any evidence upon which a reasonable
trier of fact, properly instructed in law and acting judicially, could conclude
that the defence succeeds?
[23]
My reading
of Mr. Boissel’s hearing transcript demonstrates that the Chairperson of the disciplinary
court committed the following errors:
(1)
He determined
that, in raising the defence of his inability to provide a urine sample, the
burden of proof was reversed and it was up to Mr. Boissel to convince the disciplinary
court that his lawful defence was well‑founded. According to Fontaine,
the burden on the accused was evidential and not persuasive.
(2)
What is
more, the Chairperson of the disciplinary court did not specify the nature of
the burden on Mr. Boissel. He simply ruled that the evidence submitted by Mr.
Boissel [translation] “did not convince
him”. According to Fontaine,
“the persuasive burden is discharged by evidence on the balance of probabilities”.
(3)
The
inability defence signifies that his refusal or failure was involuntary. This
was an ordinary defence as opposed to a reverse onus defence; the
accused bears no persuasive burden. According
to Justice Fish, at paragraph 56, once the issue has been put in play, the defence will succeed unless it is disproved by
the Crown beyond a reasonable doubt.
[24]
In my opinion, the
Chairperson of the disciplinary court misdirected himself in law on this matter.
[25]
It is true
that, in Fontaine, Justice Fish indicated, at paragraph 56, that
ordinary defences will only be left to the jury where a sufficient evidential
basis is found to exist, adding the following:
. . . That foundation cannot be
said to exist where its only constituent elements are of a tenuous, trifling,
insignificant or manifestly unsubstantive nature: there must be evidence in the
record upon which a properly instructed jury . . . .
[Emphasis
added.]
[26]
In other
words, the air of reality test imposes a burden on the accused that is merely
evidential, rather than persuasive.
[27]
I believe
that Mr. Boissel raised a number of pieces of evidence in support of his
evidential burden, namely, the fact that (1) he had succeeded in producing a
urine sample in private, and (2) on February 25, 2010, his attempt had
been unsuccessful on the grounds of an insufficient sample.
[28]
For these
reasons, I would allow this judicial review, I would set aside the decision by
the disciplinary court and I would refer the matter to a differently
constituted disciplinary court for rehearing.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that
1.
The
decision by the disciplinary court is set aside with costs.
2.
The matter
is referred back to a differently constituted disciplinary court for rehearing.
“François Lemieux”
Certified
true translation
Janine
Anderson, Translator
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