Date: 20070504
Docket: T-1333-06
Docket: T-1335-06
Citation: 2007 FC 482
Ottawa, Ontario, May 4, 2007
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
MATTHEW
WEIR
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Matthew Weir is a federal inmate. On two occasions in 2006, a
corrections officer, suspecting that Mr. Weir had ingested an intoxicant, asked
him to provide urine samples. On both occasions, Mr. Weir refused to comply and
was charged with two disciplinary offences. After hearings before an
Independent Chairperson (ICP), Mr. Weir was convicted on both charges.
[2]
Mr. Weir asks me to set aside his convictions, arguing that the ICP
erred in finding that the corrections officer had reasonable grounds to make the
demands for urine samples. He also submits that the ICP erred in law by drawing
an adverse inference from the fact that he had failed to take steps to
challenge the demands.
[3]
I agree that the ICP erred in both respects and, therefore, will grant
these applications for judicial review.
I.
Issues
- Did the ICP err in finding that
there were reasonable grounds for the demands for urine samples?
- Did the ICP err by drawing an
adverse inference from the fact that Mr. Weir failed to challenge the legitimacy
of the demands and, instead, waited until his hearing to raise the issue?
[4]
The parties agree that I can overturn the ICP’s decision on the first
issue, being a question of mixed law and fact, only if I find that his
conclusion was unreasonable. By contrast, I can overturn his decision on the
second issue, being a question of law alone, if I find that he made an error of
law.
II. Analysis
(a) Statutory
framework
[5]
An inmate who ingests an intoxicant commits an offence under the Corrections
and Conditional Release Act, S.C. 1992, c. 20, s. 40(k) (relevant
enactments are set out in an Annex). Equally, an inmate commits an offence if
he or she fails or refuses a staff member’s request to provide a urine sample
(s. 40(l)). A staff member may demand a sample if he or she “believes on
reasonable grounds” that the inmate has ingested an intoxicant, and that a
urine sample is needed in order to provide evidence of that offence (s. 54(a)).
The staff member must inform the inmate of the basis for the demand and the consequences
of failing to comply with it (s. 56).
[6]
Once an inmate has received a demand for a sample, he or she has an
opportunity to challenge it by making representations to the head of the
institution (s. 57(1)). The warden will then review the grounds on which the
demand was made, consider the inmate’s objections and, if satisfied the grounds
were reasonable, direct the inmate to comply (s. 62 of the Correctional and
Conditional Release Regulations, SOR/92-620).
[7]
As I read these provisions, a staff member may demand a urine sample if
he or she has reasonable grounds to believe that the inmate has committed an
offence under the Act by ingesting an intoxicant, and has reasonable grounds to
believe that a urine sample is needed for evidence of that offence. Therefore,
an inmate commits an offence only if he or she fails or refuses to comply with
a demand that is founded on those reasonable grounds. This interpretation is
borne out by the wording of the Act. Paragraph 40(l) states:
40. An inmate
commits a disciplinary offence who:
. . .
(l) fails
or refuses to provide a urine sample when demanded pursuant to section
54. (emphasis added)
In turn, paragraph 54(a) provides:
54. . . . [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 [of ingesting an intoxicant] 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. (Emphasis added.)
[8]
It follows, therefore, that an inmate can be convicted of the offence of
failing to comply with a demand for a urine sample only if it can be shown that
the demand was based on the requisite reasonable grounds.
1. Did
the ICP err in finding that there were reasonable grounds for the demands for
urine samples?
(i) Charge One
[9]
On March 17, 2006, a corrections officer presented Mr. Weir with a
written notice demanding that he provide a urine sample. The notice indicated
that the demand was based on “reasonable grounds” and specified those grounds
as follows: “inmate was observed ingesting an unknown substance on 2006/03/14”.
He refused to comply and was charged.
[10]
At his hearing on the charge, Mr. Weir, through counsel, argued that the
notice was inadequate because it did not satisfy the reasonable grounds
requirement and, therefore, that he should not be convicted of the offence of
failing to comply. The ICP concluded that the demand was “premised on reasonable
grounds”. Given that Mr. Weir had refused to comply with it, the ICP convicted
him of a disciplinary offence.
[11]
The ICP noted that the Act provides inmates with an opportunity to
object to a demand by making submissions to the head of the institution. He
then stated:
In part, I would conclude that
the purpose of that is for the institutional head and/or the other designated
person to make the necessary inquiries to see if the exercise of the demand by
the person or persons authorizing the collection was genuine or bona fide. At
that point in time, the inmate may or may not have specific information as to
whether the demand was reasonable or unreasonable, and the task is then placed
on the institutional head and/or the other named person for review.
[12]
It is true that an inmate who feels he or she has not been provided with
enough information in the original notice can ask the warden to review the
matter. However, this does not alter the fact that an inmate cannot be
convicted for refusing a demand unless there is proof of reasonable grounds.
Here, the ICP simply concluded, without reasons, that the demand was indeed
based on reasonable grounds.
[13]
The notice Mr. Weir received contained no information about where he was
alleged to have committed the offence, the manner in which he was alleged to
have ingested something (i.e. eating, drinking, smoking, or some other
means), by whom he was observed (without necessarily naming the person), the
basis for believing that the unknown substance was an intoxicant, or why a
urine sample was needed. I am not suggesting that all of this information will
always be necessary; I simply note that there was very little in the notice Mr.
Weir received. I cannot find a basis for the ICP’s conclusion that the notice
disclosed reasonable grounds for believing that Mr. Weir had committed an
offence and that a urine sample was needed in order to obtain evidence of it.
[14]
Mr. Weir cited to me the cases of Picard v. Drummond
Institution, [1995] F.C.J. No. 1628 (T.D.) (QL) and Grenier v. Correctional
Service of Canada, [1997] F.C.J. No. 1393 (T.D.) (QL). There, Justice Yvon
Pinard (in Picard) and Justice James Hugessen (in Grenier) found
that insufficient information had been given in the demands for urine samples.
They noted that, without that information, the inmate could not be said to have
been provided “the basis of the demand” as required by s. 56 of the Act. In
both cases, the convictions were set aside.
[15]
Further, where there is no proof that the demand for a urine sample was
based on reasonable grounds, an inmate cannot be convicted of the offence of
refusing to comply with it. I agree, therefore, with Justice Frederick Gibson
that proof of reasonable grounds is “a clear statutory pre-condition to such a
conviction” (Beaudoin v. William Head Institution, [1997] F.C.J.
No. 1663 (T.D.) (QL)).
[16]
In my view, the ICP’s conclusion that the demand Mr. Weir received
disclosed the required reasonable grounds is unsupportable on the evidence
before him. Mr. Weir’s conviction, therefore, must be set aside.
(ii) Charge Two
[17]
On April 6, 2006, a corrections officer presented Mr. Weir with a second
written notice demanding that he provide a urine sample. This notice again
indicated that the demand was based on “reasonable grounds” and specified those
grounds as follows: “was observed in an area with a strong odour of marijuana”.
Once again, he refused to comply and was charged.
[18]
At his hearing, Mr. Weir once again questioned the sufficiency of the
reasonable grounds in the notice. The ICP rejected this argument and convicted
him.
[19]
In my view, the grounds for the second demand were equally, if not more,
vague than the grounds in the first (e.g. the date of the alleged
offence was not provided). However, the ICP never actually made a finding that
the second demand for a urine sample was based on reasonable grounds, as he had
done in relation to the first charge. Indeed, he agreed that “the grounds are
not fully particularized”. In my view, therefore, this conviction must also be
set aside.
2. Did the ICP err by drawing an adverse inference from
the fact that Mr. Weir failed to challenge the legitimacy of the demands and,
instead, waited until his hearing to raise the issue?
(i)
Charge One
[20]
It is clear to me that the ICP drew an adverse inference from the fact
that Mr. Weir did not take up the opportunity to ask the warden to review the
demand. He said:
. . . Mr. Weir had [an] opportunity to say “That’s insufficient” or “I don’t
know what you’re talking about” or whatever the case may be. And there is some
obligation on him to make those inquiries and/or objections so that the
institution can fully fulfill its mandate vis-à-vis the objection. I am
satisfied, Mr. Weir, beyond a reasonable doubt that you did fail to provide a
sample of your urine, that you did not have a reasonable excuse, if you had one
you kept it to yourself, and I certainly don’t know that today because I
haven’t heard from you in that regard.
[21]
The ICP’s approach appears to suggest that inmates who are dissatisfied
with the grounds set out in a demand should seek a review before the warden. If
they fail to do so, they should not complain about the absence of reasonable
grounds at their hearings. Rather, they must provide some other reasonable
excuse for refusing to comply with the demand, or risk conviction.
[22]
To repeat, the presence of reasonable grounds for the demand is an
essential ingredient of the disciplinary offence of failing to comply with it.
It is an offence to refuse or fail to comply with a demand that conforms to the
requirements of the Act; i.e. one that is based on reasonable grounds.
Whether or not the inmate took early steps to ascertain the basis of the
demand, or to set it aside, does not alter the nature of the offence with which
he is charged. In my view, the ICP committed an error of law.
(ii) Charge
Two
[23]
The ICP made his approach even clearer on the second charge. He stated:
I believe Mr. Weir did not turn
his mind in any way whatsoever to filing a rebuttal. It’s clear on the
evidence. And thus, by his conduct, makes the rebuttal somewhat meaningless,
save and except for him to hang his hat [on] as he proceeds on a defence issue.
Mr. Weir, I am satisfied beyond a reasonable doubt on April 6, 2006 that you
refused to provide a sample of your urine as demanded . . ., that you were told
that that would result in a charge, that you thereafter refused again to
provide the sample, that [the officer] in fact advised you of your entitlement
to exercise a rebuttal or objection to the institutional head, as was indicated
on the notice to provide a urine sample. You did nothing in that regard and as
such, sir, I find you guilty.
[24]
It appears to me that the ICP disapproved of Mr. Weir’s failure to take
up the other remedies available to him and concluded that his conduct precluded
him from challenging the adequacy of the reasonable grounds at his hearing.
Again, this amounts to an error of law.
III. Disposition
[25]
These applications for judicial review are allowed. The
convictions against Mr. Weir are set aside and replaced by acquittals. He shall
be reimbursed for the amounts of the fines imposed on him ($20.00 on each
conviction). Mr. Weir has asked for fixed costs in the amount of $2500. I am
satisfied that this is a reasonable amount.
JUDGMENT
THIS COURT’S
JUDGMENT IS that:
1. These applications
for judicial review are granted;
2. Mr. Weir’s
convictions are set aside and replaced by acquittals;
3. The fines
imposed on him in the amount of $20.00 on each conviction shall be reimbursed;
4. Fixed costs
of $2,500 shall be paid to Mr. Weir.
“James
W. O’Reilly”
Annex
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Corrections
and Conditional Release Act, S.C. 1992, c. 20
Disciplinary offences
40. An inmate commits a disciplinary offence who
(k) takes an intoxicant into the inmate’s body;
(l) fails or refuses to provide a urine sample when
demanded pursuant to section 54 or 55;
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;
Information requirements
56. Where a demand is made of an offender to submit
to urinalysis pursuant to section 54 or 55, the person making the demand
shall forthwith inform the offender of the basis of the demand and the
consequences of non-compliance.
Right to make representations
57. (1) An inmate who is required to submit to
urinalysis pursuant to paragraph 54(a) shall be
given an opportunity to make representations to the institutional head before
submitting the urine sample.
Corrections and Conditional Release Regulations, SOR/92-620
Requirement to Provide a Sample
62. Where an inmate is required by a staff member to submit to urinalysis
pursuant to paragraph 54(a) of the Act and makes representations to
the institutional head objecting to the requirement pursuant to subsection
57(1) of the Act, the institutional head or urinalysis program co-ordinator
shall
(a) review the demand for a sample and the
inmate's objections to determine whether there are reasonable grounds on
which to require the sample; and
(b) where the institutional head or urinalysis
program co-ordinator determines that there are reasonable grounds, direct the
inmate to provide the sample.
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Loi
sur le système correctionnel et la mise en liberté sous condition, L.C. 1992, ch. 20
Infractions disciplinaires
40. Est
coupable d’une infraction disciplinaire le détenu qui
k) introduit dans son corps
une substance intoxicante;
l) refuse ou omet de fournir
l’échantillon d’urine qui peut être exigé au titre des articles 54 ou 55;
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;
Avis au délinquant
56. La
prise d’échantillon d’urine fait obligatoirement l’objet d’un avis à
l’intéressé la justifiant et exposant les conséquences éventuelles d’un
refus.
Droit de présenter des observations
57. (1) Lorsque la prise est
faite au titre de l’alinéa 54a), l’intéressé doit,
auparavant, avoir la possibilité de présenter ses observations au directeur.
Règlements
sur le système correctionnel et la mise en liberté sous condition,
DORS/92-620
Ordre de fournir un échantillon d'urine
62. Lorsque, en application de l'alinéa 54a) de la
Loi, l'agent ordonne au détenu de fournir un échantillon d'urine et que,
conformément au paragraphe 57(1) de la Loi, le détenu présente ses observations
au directeur du pénitencier pour contester cet ordre, le directeur du
pénitencier ou le coordonnateur du programme de prises d'échantillons d'urine
doit :
a)
examiner l'ordre de l'agent et les observations du détenu afin de déterminer
s'il existe des motifs raisonnables d'exiger l'échantillon d'urine;
b) s'il
conclut qu'il existe des motifs raisonnables de le faire, ordonner au détenu
de fournir l'échantillon d'urine.
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