Date: 20080506
Docket: T-90-07
Citation: 2008 FC 580
Vancouver,
British Columbia, May 6, 2008
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
MATTHEW
BOWDEN
Applicant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Matthew Bowden (the “Applicant”) seeks judicial review pursuant to section 18.1
of the Federal Courts Act, R.S.C. 1985, c. F-7, of a decision of an Independent
Chairperson of the Millhaven Institution made on August 22, 2006. In that
decision, the Independent Chairperson convicted the Applicant of an offence of
possession of contraband contrary to subsection 40(i) of the Corrections and
Conditional Release Act, S.C. 1992, c. 20 (the “CCRA”) and sentenced him to
6 days of punitive segregation with no privileges.
[2]
On
or about June 24, 2006, the Applicant entered into occupation of cell 1L-130 in
the Millhaven Institution, a maximum security federal prison. On July 4, 2006,
a contraband seizure tag was issued after his cell was searched. The tag indicated
that the alleged contraband was a homemade weapon, that is an 8-inch piece of
aluminum.
[3]
On
July 7, 2006, the Offence Notice was signed, formally charging the Applicant
pursuant to subsection 40(i) of the CCRA. This Notice was not delivered to the
Applicant, but was delivered to another inmate, named Bowen, who resided in
cell 1L-102, the cell that the Applicant had previously occupied.
[4]
On
August 22, 2006, a disciplinary hearing was held. Evidence was heard from
Officer Boven, who had conducted the search. Officer Boven testified about the
search of the Applicant’s cell and the discovery of the contraband. His total
testimony is as follows:
Officer Boven: On July 4th this
year, while conducting a search, this officer found a homemade weapon in cell
13010. The weapon was made from a piece of aluminum window frame, approximately
eight inches in length, and sharpened to a point. The weapon was found under
the toilet. The cell’s occupant was Inmate Bowden, IFS 3925042. Attached is a
copy of the picture.
[5]
The
Applicant spoke at the hearing but it is unclear whether he was giving evidence
or presenting submissions. He was not represented by counsel. The Applicant
stated the following as appears from the transcripts of the hearing:
…
ICP: Thank you. Do you wish to call or give
evidence, Sir?
MR. BOWDEN: I’d like to make a couple of points,
yes.
ICP: Go ahead, Sir.
MR. BOWDEN: The first point I’d like to make is
this. When the charge - last time I appeared in court, the charge was supposed
to be delivered to me on a Friday and I indicated to you that it hadn’t been
delivered to me, so I returned to the range and found out that it was actually
delivered to another inmate with a similar last name as mine who resided in a
cell (inaudible). And consulted, informally contacted the corrections
supervisor regarding that matter. He said just to appear in court, and that
(inaudible) to ask the officer that delivered the charge to confirm the fact
that it was delivered to the wrong person.
…
…
ICP: We are now dealing with the
substantive issue of the charge, Sir, and the evidence that I’ve heard.
MR. BOWDEN: All right, okay, I’m going onto the
next.
ICP: Please.
MR. BOWDEN: I resided in the cell for
approximately a week and a half and I cleaned up and (inaudible) I saw there
was some debris as well as some silicone in front of the toilet. (inaudible)
saying we found a weapon in your cell. But I remember the chunk of silicone
which seemed to be blocking – seemed to be covering the compartment where the
weapon was found, so.
ICP: Which compartment would this be?
MR. BOWDEN: There’s a small, underneath the
toilet, there’s a small gap, about this high and this long. (Inaudible) Like I
said it was a chunk of silicone. It had been sealed for some time. So, my
argument would be that (inaudible) Like I said, my cell was searched
(inaudible).
ICP: Well, had you retained counsel, Sir,
your counsel may have requested records as to when you first occupied the cell,
the search of your cell before your occupancy or for that matter, during your
occupancy up to the date of this charge, but you’ve chosen not to do that. I’m
not going to embrace your speculation as to weeks, months or years.
MR. BOWDEN: No, I’m just stating that.
ICP: I understand.
MR. BOWDEN: It’s quite possible (Inaudible)
That’s another thing I have issues and it seems to me that the chunk of
silicone (inaudible) and the fact that it was found, the chunk of silicone had
dried out.
ICP: How do you know, Sir, the silicone
came from that particular area, Sir, unless you had occasion to look at that?
MR. BOWDEN: Because as I said, the pattern was the
same and there was a trail of debris and beside that was a chunk, two chunks of
silicone that appeared to fit the size that remained.
[6]
The
Applicant said that he had occupied his cell for only 10 days before the search
and seizure, and that it was possible that a previous occupant of the cell had
placed the contraband under that toilet and covered it with a piece of silicone
without the Applicant’s knowledge.
[7]
The
Independent Chairperson made the following statement:
There is no question in my mind, Mr.
Bowden, that you had knowledge and you had control, and thus, you had
possession of the contraband in question. As such, Sir, based on the evidence
which I’ve heard, which is the only information that I base my decision upon, I
am satisfied beyond a reasonable doubt that you were in possession of the
contraband as alleged. To that end you are found guilty.
[8]
The
sole issue arising is whether the Independent Chairperson made a reviewable
error in finding the Applicant guilty of possession of contraband: should the
Court intervene in the finding that the Applicant had knowledge of the presence
of the weapon.
[9]
According
to the recent decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, decisions of administrative decision-makers are to be
reviewed on either the standard of correctness or that of reasonableness. The
principal issue in this case is one of mixed fact and law, involving the
assessment of the evidence in light of the relevant statutory provisions.
According to the decision in Dunsmuir at para. 53, the standard of
reasonableness will apply. The standard of correctness will apply to any
breach of procedural fairness.
[10]
Pursuant to section 43 of the CCRA, the correct
legal test for possession of contraband in prison is that the accused must be
proven to have knowledge, care and control of the contraband, such proof to be
established beyond a reasonable doubt. That standard is set out in subsection
43(3) of the CCRA, as follows:
|
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.
|
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.
|
[11]
In Lee
v. Kent Institution, 70 F.T.R. 155, the Court said the following at para. 3
about this standard:
I
am prepared to assume, without deciding, that for the Respondent to convict the
Applicant of this offence he would have to be satisfied of guilt beyond a
reasonable doubt. I further assume (although counsel did not provide precise
authority as to the applicability of this test) that possession of contraband
is not proven unless the disciplinary court is satisfied that the inmate
knowingly had possession of something which was found in his quarters.
[12]
Any
doubt about the basis for a finding of guilt must be resolved in favour of the
prisoner; see Taylor v. Canada (Attorney General), 2004 FC 1536 at para. 14,
[2004] F.C.J. No. 1851.
[13]
In
cases where evidence of opportunity is accompanied by other inculpatory
evidence, then something less than exclusive opportunity may be sufficient to
establish guilt. That was the situation in R. v. Yebes, [1987] 2 S.C.R.
168. Although the Applicant had the opportunity to possess the contraband, as a
result of his occupation of the cell, the evidence does not establish that he
had the exclusive opportunity to do so.
[14]
There
does not appear to be any additional inculpatory evidence in this case that
would support a conclusion, beyond a reasonable doubt, that the Applicant had
control or knowledge of the contraband. In Smith v. Canada (Attorney General), 282 F.T.R. 91, the
Court found that the applicant did not have exclusive opportunity to possess
the contraband and he presented plausible alternatives to explain its presence
in his cell. In the present case, the evidence shows that the Applicant had
only recently occupied the cell, after the prior occupation of someone else
with a similar name, to whom the Offence Notice was delivered in place of the
Applicant.
[15]
In
these circumstances, and having regard to the relevant jurisprudence, I
conclude that the decision of the Independent Chairperson was not reasonable.
He failed to properly apply subsection 43(3) of the CCRA to the evidence.
[16]
There
is a further error in this decision, in my opinion. The Applicant was not
given notice of the disciplinary charge, as required by section 42 of the
CCRA. That section reads as follows:
|
42. An inmate
charged with a disciplinary offence shall be given a written notice of the
charge in accordance with the regulations, and the notice must state whether
the charge is minor or serious.
|
42.
Le détenu accusé se voit remettre, conformément aux règlements, un avis
d’accusation qui mentionne s’il s’agit d’une infraction disciplinaire mineure
ou grave.
|
[17]
In
the course of the hearing, the Applicant raised the issue of the lack of
notice. The Independent Chairperson refused to give an explanation in that
regard. This omission raises concern about adequate respect for procedural
fairness.
[18]
In
the result, the application for judicial review is allowed and the decision of
the Independent Chairperson, made on August 22, 2006, is quashed.
JUDGMENT
This application for judicial
review is allowed and
the decision of the Independent Chairperson, made on August 22, 2006, is
quashed.
“E.
Heneghan”
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