Gifford v. Canada (Attorney General), 2007 FC 606

 

Date: 20070606

Docket: T-1394-06

Citation: 2007 FC 606

Ottawa, Ontario, June 6, 2007

PRESENT:  The Honourable Mr. Justice Strayer

BETWEEN:

WILLIAM GIFFORD

Applicant

and

 

ATTORNEY GENERAL OF CANADA

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

 

INTRODUCTION

 

[1]               This is an application for judicial review of a decision by an Independent Chairperson in a disciplinary hearing at Matsqui Institution on July 5, 2006. The decision was to convict the Applicant of an offence under paragraph 40(f) of the Corrections and Conditional Release Act, SC 1992, c. 20. The Applicant seeks certiorari to quash the decision and mandumus to require the Respondent to comply with certain legal principles and to delete all information concerning his conviction for this offence.

FACTS

 

[2]               It is useful first to note the legislative framework for such proceedings. The Corrections and Conditional Release Act provides in part as follows:

 

[3]               The Corrections and Conditional Release Regulations, S.O.R./92-620 provide in part as follows:

 

[4]               Commissioner’s Directive, number 580, also provides:

 

[5]               The offence in question is said to have occurred on May 19, 2006. Officer Forseth made the following report of  the incident:

On the above date and time this writing officer was standing by the #3 gate in the walkway. Inmate Gifford was approaching in non-institutional dress. This writer attempted to informally resolve the situation by allowing him to go back to the unit and get changed. He ignored this writer’s attempts to resolve the matter and continued past this writer saying, “I’m going to the medi-line.” He was once again told that he needed to go back and get changed. He was then given three direct orders to stop to which he completely ignored. On his way back he stopped into the kitchen for his breakfast. When he came out he was told that he was getting charged. He stated that he didn’t care. Charges forwarded with this report to the C/S and SIO.

 

 

[6]               Counsel for the Respondent asserts, and the Applicant does not dispute, that the “non-institutional dress” which the Applicant was wearing, and which concerned the Officer, was a grey T-shirt; according to institutional rules he should have been wearing a white T-shirt. On May 31, 2006 a Unit Manager, presumably the person to whom the authority had been delegated, reviewed Officer Forseth’s report and laid a charge under paragraph 40(a) of the Act as quoted above. That is, the Applicant was charged with disobeying “a justifiable order of a staff member”.

 

[7]               The charge came up for hearing before Chairperson Dow on July 5, 2006. The Applicant was assisted by another inmate, Brian West. Officer Forseth was not available but Mr. West agreed to the hearing proceeding. At that point the position of the Applicant was that he simply had not heard the order because he was wearing earphones listening to his Walkman. Therefore, as Officer Forseth could not know whether the Applicant heard his order or not, his evidence was not necessary. The Chairperson agreed to proceed on this basis and she questioned the Applicant. She asked him what had happened and he replied as follows:

A.        And I had my – I put my Walkman on in my back pocket, like I always do in the corridor, earphones in my ears, walk down. And as I walked down I noticed, even out in front of me that there was a guy in shorts, and then there was another guy in – with a hooded sweatshirt on.

 

Q.        Okay.

 

A.        They walked – they were about 40 feet ahead of me. As I walked down I walked past him and I thought – I mean I heard him say – I didn’t really hear what he said. I thought, I know, okay, I knew it was about my grey T-shirt and he [Forseth] was telling me to go back, because this guy, I’ve had tons of dealings with him in the past and it’s been like he kind of centred me out; right? I know he doesn’t like me.

 

And so I kept walking, kept walking. And I guess he was still behind me chasing me or something. But I did not – I knew he was saying something, right? I thought it was just about the grey T-shirt.

 

Q.        Mm hmm.

 

A.        I -- I didn’t want to take the earplugs out. I had just woken up. I – I was – if there was going to be an argument, a heated argument, and it was morning. I’d already had a report of this guy that’s not a good one, and I just kept walking.

 

           

[8]               After a number of other questions and answers the Chairperson said this:

CHAIRPERSON DOW:          Okay.

 

BRIAN WEST:                        It was seven-thirty in the morning when this happened.

 

CHAIRPERSON DOW:          Okay. This is what I’m doing. This is what I’m doing. I am changing the designation of the charge to – so it was at (a) and I’m changing it to (f), which is disrespectful or abusive toward a staff member or [indiscernible] under a staff member’s authority.

 

I don’t think you’re by your testimony – and again, I mean, we can certainly have the officer, but this is where I’m at is an officer is talking to you. You don’t know, the officer could be saying, you know, “Stop, we’ve got an altercation going on in whatever’s down that way. I need you to exit that way”, or who knows what the officer’s asking. And you choose to be, in my view, disrespectful, keep your earphones in, continue walking. Is that a fair description of what happened? I mean, I’m just going by what you said. So I have a dilemma with that.

 

A.  I didn’t hear [indiscernible] so [indiscernible].

 

CHAIRPERSON DOW:          But you knew he was talking to you. And even by your own – I didn’t make it up; right? You just came in and said, “You know, I kind of gathered he was going to talk about dress.”

 

[9]               Later, the transcript (p. 16) shows that she pronounced the Applicant guilty of an offence under paragraph 40(f), that is of being “disrespectful or abusive toward a staff member in a manner that could undermine a staff member’s authority”.  A fine of $35, suspended, was imposed.

 

[10]           The Applicant attacks this conviction on two grounds. First, it is said that the Chairperson had no jurisdiction to change the charge from the offence described in paragraph 40(a) of the Act to that described in paragraph 40(f). Secondly, it is said that even if she had that authority, she should not have convicted under paragraph 40(f) because there was no evidence before her as to the necessary elements of the offence, namely that what was done was “in a manner that could undermine a staff member’s authority”.

[11]           The Respondent essentially argues that such a Chairperson, like any other administrative tribunal, is master of her own procedure and that this was a procedural matter only. The only limitation on her changing of the charge was that it must not deny fairness to the Applicant. In this respect, counsel says that it was the Applicant himself who volunteered the information that he was aware the Officer was talking to him but did not wish to engage in conversation with the Officer, thus demonstrating that he was being disrespectful of an Officer whom he knew was speaking to him. Evidence of the Applicant to this effect has been quoted above.

 

ANALYSIS

 

[12]           If I were sitting as a criminal appeal court with the power to uphold convictions even in the face of minor legal irregularities in the proceedings below where there was no substantial miscarriage of justice, (see e.g. the Criminal Code R.S.C. c-34), sub. para. 686(1)(b)(iii)) I would be inclined to dismiss this application. Disciplinary proceedings before an independent chairperson are intended to be expeditious and informal and are inquisitorial rather than adversarial in nature. See, for example, Canada (Correctional Services) v. Plante, 1995 FCJ No. 1509 (TD) and cases referred to therein. The Applicant had freely testified that he knew the Officer was talking to him and chose not to take off his earphones and listen or to respond, facts which formed a reasonable basis for the Chairperson deciding as she did that he was guilty of an offence under paragraph 40(f) . As for the Applicant’s argument that she did so without any evidence that he acted “in the manner that could undermine a staff member’s authority”, I think it was open to the Chairperson to draw that inference from the circumstances. It must also be observed that the offence was trivial and the actual penalty (a $35.00 fine, suspended) was modest whatever may be said of possible future implications for the Applicant of such a penalty.

 

[13]           This is not an appeal but a judicial review, however, and I have concluded that the Chairperson did lack jurisdiction to change the charge from paragraph 40(a) to 40(f). The scheme of the Act, Regulations, and Commissioner’s Directive appears to give the institutional head or his delegate the responsibility for choosing the charges to be laid. The various provisions are quoted above. Section 41 of the Act requires a staff member to try to resolve disciplinary problems informally but where he cannot, it is the institutional head or his delegate who decides whether a charge of a minor or serious disciplinary offence is to be laid. It is clear from paragraph 24 (1)(a) of the Regulations that independent chairpersons cannot be staff members and thus can’t be delegates. By section 25 of the Regulations, the inmate is to be given written notice of the charge chosen by the head or his delegate and by section 43 of the Act, it is that charge, not some other charge that is to be dealt with “in accordance with the prescribed procedure”. No one has suggested that there is a prescribed procedure allowing the Chairperson to change the charge. The only authority which the Chairperson has of that nature can be found in subsection 30(3) of the Regulations, which authorizes a chairperson to decide that a charge of a serious offence should proceed as a charge of a minor offence and may amend the charge accordingly or she can refer the matter to the institutional head. As I understand it, the same offence described in the Act may be proceeded with as a serious offence or a minor offence but in either case it is the same charge based on the same statutory provision and not some other statutory provision.

 

[14]           Whether this is a convenient or sensible arrangement is not the issue before me. Counsel for the Respondent drew analogies with criminal proceedings. He pointed out that under subsection 601(2) of the Criminal Code, a court is permitted on the trial of an indictment to amend the indictment to make it conform to the evidence. But there is no such provision in the Corrections and Conditional Release Act or its Regulations. Given the express provisions which seem to indicate that it is the head or his delegate who is to specify the charge, I am unable to find any implied authority on the part of a Chairperson to do so.

 

[15]           While, as I have said, I would find it difficult to characterize these proceedings as unfair to the Applicant, he has a valid point that anyone charged with an offence should be aware of precisely  what is the charge which he must defend. In this case he thought the charge was that of failing to obey an order, so he relied on his assertions that he did not hear the order. But in doing so he admitted that he deliberately avoided conversation with the Officer although knowing that he was being addressed by that Officer. This, in the not unreasonable view of the Chairperson, made him guilty of a somewhat more broadly defined offence, that is showing disrespect to the Officer, an offence he did not know he was charged with and which he had inadvertently admitted.

 

[16]           The Respondent relied on another recent decision of this Court, Latham v. Saskatchewan Penitentiary, [2005] F.C.J. No. 355 (TD). In that case, the inmate had originally been charged under paragraph 40(h) of the Act with threatening to assault another person. At the hearing, the independent chairperson, after hearing the evidence, found that he was guilty under paragraph 40(g) of being disrespectful or abusive toward any person in a manner likely to provoke that person to be violent. She described the offence under paragraph 40(g) as being an “included offence” within paragraph 40(h). On judicial review, the applications judge set aside the conviction on the ground that the procedure had been unfair to the inmate: that once the chairperson decided to consider the other offence, she should have adjourned and given the inmate an opportunity to defend himself against the second charge. The applications judge did not address the issue before me, namely whether the independent chairperson had the jurisdiction to change the charge in this way nor does it appear that that issue was raised before her. In the present case, the issue is squarely raised and I must deal with it. I have reluctantly reached the decision that however convenient, expedient, and sensible it might be to allow the Chairperson to change the offence to be tried, I do not believe the Act authorizes it. Nor is there any mention in the Act of the concept of included offences as there is in the Criminal Code (see Criminal Code, supra, para. 662(1) (a)).

 

[17]           Having reached this conclusion, it is not necessary for me to consider the issue of whether there was adequate evidence before the Chairperson with respect to the second element of the offence under paragraph 40(f). Nor is it necessary for me to consider the extensive submissions of the Applicant with respect to his entitlement to costs even if he should be unsuccessful on this application. He has made no case to me for me to exercise any discretion I might have to allow him some recompense for his own time as a self-represented litigant, so I will confine my award of costs to compensation for disbursements.

 

 

 

DISPOSITION

 

[18]           I will therefore quash the conviction made on July 5, 2006 and send the matter back to the institutional head on the condition that if he issues a charge in respect to this same incident, the matter will be tried before a different independent chairperson. I will award costs to the Applicant, in the form of payment of his disbursements.

 

 

 

JUDGMENT

 

THIS COURT ORDERS THAT:

 

1.                  The conviction of the Applicant under section 40(f) of the Corrections and Conditional Release Act entered on July 5, 2006 be quashed;

2.                  The matter be referred back to the institutional head on condition that if he proceeds with a charge against the Applicant in respect to the same incident, the charge will be tried before a different independent chairperson; and

3.                  The Applicant be awarded costs in the form of payment of his disbursements.

 

 

“Barry L. Strayer”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-1394-06

 

STYLE OF CAUSE:                          William Gifford v. AGC        

 

PLACE OF HEARING:                    Vancouver

 

DATE OF HEARING:                      May 10, 2007

 

REASONS FOR ORDER:               STRAYER, J

 

DATED:                                             June 6, 2007

 

 

 

APPEARANCES:

 

Ms. Jennifer Metcalfe Mr. Mark Redgwell	FOR THE APPLICANT
Mr. Graham Stark	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Ms. Jennifer Metcalfe Mr. Mark Redgwell Abbotsford, B.C.	FOR THE APPLICANT(S)
Mr. John H. Sims, Q.C. Deputy Attorney General of Canada Department of Justice Vancouver, BC	FOR THE RESPONDENT(S)