Date: 20080904
Docket: T-1251-07
Citation: 2008 FC 990
Ottawa, Ontario, September
4, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
DAVID
DUTIAUME
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application by David Dutiaume (the applicant) for judicial review under
section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 of a
decision dated June 6, 2007 by an independent chairperson (the chairperson)
convicting the applicant of the offence of fighting, assaulting or threatening
to assault another person contrary to subsection 40(h) of the Corrections
and Conditional Release Act, R.S. 1992, c. 20, s. 41 (the Act).
[2]
The
applicant requested the following relief from the Court:
1. An
order in the nature of certiorari to quash the decision of the
independent chairperson;
2. An
order in the nature of mandamus compelling the Correctional Service of
Canada (the Service) to delete all information regarding the related
allegations, charges and conviction from all files in the applicant’s name held
by the Service and any other agency that may have received such information
from the Service, including the National Parole Board;
3. In
the alternative, an order in the nature of mandamus, directing the independent
chairperson to send the matter back to the institution to determine the outcome
of the informal resolution attempted; and
4. The
costs of this application.
Background
[3]
The
applicant is an inmate at Kent Institution, a maximum security institution. On
February 8, 2007, the applicant was an inmate at the Regional Treatment Centre
(Pacific Region). While in the range yard, the applicant and another inmate were
witnessed behaving aggressively towards a third inmate (the alleged victim) by
a control post officer (Officer Jensen). Officer Jensen witnessed the incident
in the yard via a video monitor, and recorded the incident as a result. Officer
Jensen did not call anyone to intervene because the incident did not escalate
and he felt that it could be dealt with after the fact.
[4]
As
a result of the incident, an inmate offence report and notification of charge
(the report) was drafted. It stated, “[i]nmate Dutiaume was inciteful [sic]
towards inmate Buschkewitz (FPS 817920B) and assaultive towards him”.
[5]
On
March 6, 2007, the applicant was charged under subsection 40(h) of the Act with
fighting, assaulting or threatening to assault another person. A disciplinary
hearing was held before the chairperson on March 14, May 2, May 23, and May 30,
3007. The applicant testified at the disciplinary hearing that a Corrections
employee, Officer Campbell, came to his cell several hours after the incident
to obtain the applicant’s side of the story. There appears to be uncertainty on
whether the Corrections employee in question was indeed Officer Campbell, as
such, I will refer to the individual as “CX2”. After the visit, the applicant
was restricted to his unit. Evidence at the hearing included the report which
indicated that informal resolution had been attempted, but there were no
reports or materials describing the attempt of informal resolution or its
outcome presented at the hearing. The videotape of the incident was also before
the chairperson. Both the applicant and Officer Jensen testified before the
hearing.
[6]
In
a decision dated June 6, 2007, the chairperson found the applicant guilty of
the charge under subsection 40(h) of the Act.
Chairperson’s
Decision
[7]
The
chairperson first addressed the delay issues in the hearing and although not
pleased by the delays found that they were as much the result of the requests
of the applicant or his counsel as anything else. As such, the chairperson rejected
the notion of undue delay.
[8]
The
chairperson then addressed the applicant’s argument that Officer Campbell’s
report should be rejected as it contained “double hearsay” statements and all
names but that of the applicant were blacked out in the report. The chairperson
agreed with the applicant and rejected the report because it did not contain
information that was sufficiently complete due to the blacking out of names.
[9]
The
chairperson rejected the applicant and his counsel’s evidence regarding the
mental health of the alleged victim stating that it was opinion only and there
was no substantive evidence provided.
[10]
The
chairperson then turned his attention to the issue of informal resolution as
raised by the applicant. The chairperson noted that the report indicated that
informal resolution had been attempted, but he also noted that during his
testimony Officer Jensen was unable to recall the specifics, other than the
fact that the applicant was given the opportunity to speak to CX2 about the
incident. Moreover, the chairperson noted that there was no report concerning
the discussion between the applicant and the CX2 on record. The chairperson
cited Commissioner’s Directive 580 (CD 580) on informal resolution and noted
that subsection 11(b) of the Act permits documentation of attempts at informal
resolution in either the report or the case work record. The chairperson found
that this evidence “is something that the institution should produce in cases
where the Inmate Offence Report and Notification of Charge form indicates that
informal resolution has been attempted.” The chairperson found that it was reasonable
for the applicant to request this documentation as it is a requirement of CD
580.
[11]
The
chairperson considered the issue of the severity of the incident and found that
the actions of Officer Jensen were consistent with the Act’s underlying
principle of using as little force as necessary. The chairperson stated “[h]aving
reviewed the video tape myself, I would have considered intervention though [sic]
the use of force to be inappropriate”.
[12]
The
chairperson considered the fact that the applicant and the alleged victim were
on the same unit for approximately five days after the incident. The chairperson
found that a period of assessment like the one in this case was entirely
consistent with the regular procedure used at the Regional Psychiatric Center.
[13]
With
regards to the video recording of the incident, the chairperson made a number
of observations:
- The
applicant and a second inmate clearly move into the personal space of the
alleged victim repeatedly;
- The
applicant places his hands on the alleged victim several times and these
actions are not welcomed by the alleged victim;
- The
positioning of the second inmate is such that it suggests that the second
inmate was in support of the applicant’s actions;
- The
applicant strikes the alleged victim softly in the belly and assumes a
fighting stance on at least two occasions;
- The
applicant makes a fist which he extends slowly touching the alleged victim
under the chin;
- The
alleged victim is smoking when the applicant and the second inmate enter
the yard and after an initial interaction, the applicant actually places a
cigarette filter into one of the alleged victim’s nostrils which the
alleged victim removes immediately;
- The
alleged victim attempts to leave the yard, but is prevented from doing so
by the applicant and the second inmate; and
- The
applicant and the second inmate smile a number of times throughout the
video, but the alleged victim never smiles or gives the appearance that he
is having a good time.
[14]
The
chairperson noted that the applicant testified that the alleged victim had
asked him for a cigarette when they first entered the yard. The chairperson
stated that this did not make any sense because the alleged victim was in fact
smoking when the applicant and the second inmate entered the yard. The chairperson
also noted the applicant’s testimony that the alleged victim was a friend and
they were just engaging in “horseplay”.
[15]
The
chairperson rendered the following conclusions at the end of his decision:
- Officer
Jensen’s evidence, namely his oral testimony and the video tape, was
highly credible;
- The
applicant’s evidence lacked credibility as his version of the incident is
clearly not supported by the video recording, and his actions were
definitely aggressive, and were those of a bully and a thug;
- It
would have been reasonable for the applicant’s counsel to request the
written record of the attempt at informal resolution, but it is not a
requirement of the Court to evaluate each and every informal resolution
attempt and to rule on its acceptability; and
- Informal
resolution was considered by the institution to the extent required.
[16]
Based
on the above analysis and conclusions, the chairperson found the applicant
guilty of the charge under subsection 40(h) of the Act.
Issues
[17]
The
applicant has submitted the following issues for consideration:
1. What
is the standard of review to be applied to the decisions of the independent chairperson
in the case at bar?
2. Did
the independent chairperson err in finding that the institution considered
informal resolution to the extent required by section 41 of the Act?
3. Did
the independent chairperson err by failing to properly consider the defence of
consent or mistaken belief in consent and thereby erroneously convicted the
applicant of assault under subsection 40(h) of the Act?
[18]
I
would rephrase the issues as follows:
1. What
is the appropriate standard of review?
2. Did
the chairperson fail to appreciate his duty in ensuring that informal resolution
had been considered by the institution?
3. If
not, did the chairperson err in finding that the institution had considered
informal resolution to the extent required by section 41 of the Act?
4. Did
the chairperson err in finding the applicant not to be credible?
5. Did
the chairperson err in his finding that the applicant’s actions towards the
alleged victim were not consensual?
Applicant’s Written
Submissions
[19]
The
applicant submitted that the appropriate standard of review for questions of
law including issues of procedural fairness, is correctness, for questions of
mixed law and fact is reasonableness, and for questions of pure fact is patent
unreasonableness (Sweet v. Canada (Attorney General), [2005]
F.C.J. No. 216). It was submitted that the chairperson’s failure to refer the
matter back to the institution for clarification on informal resolution is a
breach of procedural fairness reviewable on the standard of correctness. In the
alternative, the chairperson’s finding that the attempt of informal resolution
on record was sufficient is an error of law reviewable on a standard of
correctness. The chairperson’s failure to properly consider consent and
mistaken belief is reviewable on the standard of reasonableness. Moreover, any
findings of fact made by the chairperson are reviewable on the standard of
patent unreasonableness.
[20]
The
applicant noted that section 41 of the Act provides that informal resolution
must first be considered by the institution before a charge is laid. Moreover,
CD 580 underlines the importance of informal resolution. It is the Service
through the institution in question that bears the duty of attempting
information resolution, and inmates have a parallel right to request informal
resolution (Laplante v. Canada (Attorney General), [2003] 4
F.C. 1118). The chairperson plays an important role in ensuring an inmate’s
right to informal resolution has been respected and has the discretion to send
the matter back to the institution (Laplante above at paragraphs 12 and 13).
It was submitted that the chairperson erred in finding that the institution had
met its duty under section 41 to attempt informal resolution given the evidence
before the chairperson. The applicant noted that while there was evidence that
CX2 had spoken to the applicant after the incident, there was no evidence as to
the content of this discussion or any further information about the attempt at
informal resolution.
[21]
The
applicant also submitted that the chairperson misapprehended his duty in
ensuring that the applicant’s right to informal resolution had been respected.
Specifically, the applicant noted the chairperson’s finding that he was not
required to “evaluate each and every informal resolution attempt”. The
applicant submitted that subsection 11(c) of CD 580 requires that staff members
at the institution responsible for quality control ensure that informal
resolution is considered, attempted where possible, and documented. As there was
no evidence on the record indicating that this was done, the chairperson should
have exercised his discretion and sent the matter back to the institution. The
applicant acknowledged that as per Knight v. Canada (Attorney
General), [2005] F.C.J. No. 909, the chairperson’s power to refer matters
back to the institution is discretionary and not mandatory, but submitted that
where there is insufficient evidence to find that informal resolution was
properly considered and attempted, the chairperson has a duty to return the
matter to the institution for further consideration.
[22]
The
applicant also submitted that the chairperson failed to properly consider the
defence of consent or mistaken belief in consent and this failure led to an
erroneous conviction. It was submitted that the applicant testified that he had
an ongoing friendship with the alleged victim that involved horseplay and play
fighting, and that the incident in question was another example of this
behaviour. The applicant argued that although the chairperson did not find the
applicant to be credible, he must still be satisfied that guilt is the only
inference that can be drawn from the proven facts (McLarty v. Canada,
[1997] F.C.J. No. 808 at paragraph 10). Even without the applicant’s testimony,
the video recording does not unequivocally show an assault occurring and as
such, the chairperson erred in convicting the applicant.
[23]
And
finally, the applicant submitted that the chairperson’s finding that the
applicant was not credible was patently unreasonable. The applicant submitted
that the only basis for this finding was his testimony that the alleged victim
asked the applicant for a cigarette which was rejected on the basis that the
alleged victim was smoking when the applicant entered the yard. The applicant
submitted that a close watching of the videotape reveals that in fact the
alleged victim was not smoking when approached by the applicant.
Respondent’s Written
Submissions
[24]
The
respondent submitted that the appropriate standard of review with regards to
issues of fact is patent unreasonableness, and questions of mixed law and fact
is a standard of reasonableness simpliciter (Forrest v. Canada (Attorney
General),
[2004] F.C.J. No. 709). Procedural fairness questions and the proper
interpretation of section 41 are reviewable on a standard of correctness. It
was submitted that disciplinary proceedings conducted by an independent
chairperson of a disciplinary Court are not judicial or quasi judicial in
nature, but are administrative proceedings. Judicial review with respect to
disciplinary matters should be exercised sparingly and where there has been a
most serious injustice (Boudreau v. Canada (Attorney
General),
[2000] F.C.J. 2016 (F.C.T.D.) at paragraph 7).
[25]
The
respondent submitted that the chairperson’s finding of guilt was not erroneous
given the evidence before him. It was acknowledged that in order to convict,
the chairperson had to be satisfied beyond a reasonable doubt that the
applicant had committed the offence. The respondent submitted in light of the persuasive
evidence in the video recording, credible testimony from Officer Jensen and
non-credible evidence from the applicant, the chairperson’s finding of guilt
was not patently unreasonable.
[26]
In
response to the applicant’s argument on the chairperson’s consideration of
informal resolution, the respondent submitted that the chairperson did not
commit a reviewable error. The respondent noted that while informal resolution
is an important aspect of dealing with the offence, it is not a mandatory step
(Knight above at paragraph 16). As informal resolution was considered in
the present case, the rights of the applicant were respected. Neither a failure
to document the reasons for not attempting informal resolution, nor a failure
to document the reasons for which informal resolution failed is a breach of
fairness in the process (Knight above at paragraph 20). Moreover, a
disciplinary board does not lose its jurisdiction to hear a case if the
informal process has not taken place (Laplante above at paragraph 12).
The chairperson has the ability to return the matter to the institution so that
they can evaluate the appropriateness of attempting an informal resolution, but
this is discretionary (Laplante above at paragraph 13). The respondent
submitted that there is nothing on the record to suggest that the chairperson
did not bear in mind the significance of attempts at informal resolution. In
fact, the chairperson specifically addressed informal resolution, but was
satisfied that the institution had considered it to the extent required. There
was no error on the part of the chairperson.
Analysis and
Decision
[27]
Issue
1
What is
the appropriate standard of review?
Since this
application for judicial review was heard, the Supreme Court of Canada in Dunsmuir
v. New
Brunswick
[2008] S.C.J. No. 9 ruled that there are now only two standards of review:
reasonableness and correctness. A
detailed analysis of which standard to apply is not required if it has been
determined in earlier jurisprudence. The factors to be considered in a standard
of review analysis are on one hand the existence of a
privative clause and a discrete and special administrative regime in which the
decision maker has special expertise which attracts a reasonableness standard,
and on the other hand, the nature of the question as being of “central
importance to the legal system…and outside the…specialized area of expertise of
the administrative decision maker (Toronto (City) v. C.U.P.E., Local
79, [2003] 3 S.C.R. 77)” attracting a correctness standard (Dunsmuir,
above at paragraph 55). In many cases it may not be necessary to consider all
the factors as some of them will be determinative (Dunsmuir, above at
paragraph 64).
[28]
This case involves
decision making by a chairperson of a disciplinary court. It is well
established in earlier jurisprudence that the principles and procedures which
apply to these proceedings reflect its administrative nature which is neither
judicial nor quasi-judicial in nature (Hendrickson v. Kent
Institution Disciplinary Court (Independent Chairperson) (1990), 32
F.T.R. 296, quoted by Justice Kelen in Forrest, above at
paragraph 16). This is not to suggest, however, that rules of natural justice
and statutory provisions or regulations having the force of law to the contrary
are not deserving of judicial discretion (Forrest, above).
[29]
Therefore, the issue
of the chairperson’s failure to appreciate his duty to ensure informal
resolution is reviewable on a standard of correctness as it is a question of
procedural fairness. The chairpersons finding that the institution had
considered informal resolution to the extent required by section 41 is a
question of mixed fact and law and is reviewable on a standard of
reasonableness. The applicant’s submissions on the chairperson’s credibility
findings and the findings of fact related to the applicant’s actions towards
the alleged victim are reviewable on a standard of reasonableness.
[30]
Issue
2
Did the chairperson fail to
appreciate his duty in ensuring that informal resolution had been considered by
the institution?
The applicant submitted that
the chairperson did not appreciate his duty to ensure that informal resolution
had been considered by the institution. The duty of the chairperson in relation
to informal resolution was explored by the Federal Court of Appeal in Laplante,
above. In that case, the Court determined that the obligation under section
41 of the Act to consider whether informal resolution is reasonable, given the
circumstances, is imposed on the corrections officer. Moreover, the Court
determined that the inmate has a corresponding right to demand that corrections
officials take steps, where possible, to resolve the matter informally. The
Court underlined the importance of this duty and the corresponding right. With
regards to the chairperson’s jurisdiction, the Court found that a failure on
the part of an officer to properly discharge their duty does not amount to an
ousting of the jurisdiction of the chairperson. In other words, an inmate’s
right to informal resolution is not a precondition to the legal exercise of the
chairperson’s decision (Laplante above at paragraph 14). The Court went
on at paragraph 13 of Laplante, above to make the following comments
about the role of the chairperson in section 41:
In practice, this power of the Board to
ensure compliance with the rights of an inmate charged with disciplinary
offences means this in case of a breach of the duty under subsection 41(1).
When informed of a violation of the inmate’s right under subsection 41(1), and
satisfied that the duty imposed by that provision has not been respected, the
chairperson of the Board may suspend the hearing of the complaint and return
the matter to the institutional head so that the latter can evaluate the
appropriateness of attempting an informal resolution. I hasten to explain that
the role of the Board chairperson is limited to this referral back. It is not his
role to interfere in the negotiation of an informal settlement that Parliament
has imposed on the Correctional Services, which are responsible therefor.
Similarly, it is not the chairperson’s job to substitute his opinion for that
of the institutional head who, before laying a charge of disciplinary offence,
concluded that an informal resolution could not be achieved or was not possible
in the circumstances. […]
[31]
The
chairperson’s conclusion on informal resolution read as follows:
I believe it would have been reasonable
for Counsel to request the written record of the informal resolution that was
attempted. At the same time, I do not consider it to be a requirement of the
court to evaluate each and every informal resolution attempt, to rule on its
acceptability. I am satisfied that the institution considered informal
resolution to the extent required.
[32]
In
my opinion, the chairperson did not err in his interpretation of his role in
assuring the inmate’s right of informal resolution. As found in Laplante
above, the chairperson’s discretion to send the matter back to the institution
head is only triggered if he or she is not satisfied based on the evidence that
the institution considered informal resolution to the extent required. In the
present case, the chairperson clearly states that he is satisfied that “the
institution considered informal resolution to the extent required”. Moreover,
the chairperson’s statement that it was not his role to “evaluate each and
every informal resolution attempt, to rule on its acceptability” is rightly
inline with the Federal Court of Appeal’s comments in Laplante above,
that the chairperson does not have a role to play in approving or interfering
with the institution’s handling of informal resolution. In my opinion, the chairperson
correctly interpreted his role. I would not allow the judicial review on this
ground.
[33]
Issue
3
If not, did the chairperson
err in finding that the institution had considered informal resolution to the
extent required by section 41 of the Act?
The applicant submitted that
the chairperson’s finding that “the institution considered informal resolution
to the extent required” was unreasonable given the evidence before the chairperson.
The applicant further submitted that due to the lack of evidence supporting
this finding, the chairperson should have exercised his duty to request further
information from the institution.
[34]
The
evidence before the chairperson included a report from Officer Jensen wherein
the yes box was checked off under the heading “INFORMAL RESOLUTION ATTEMPTED”.
Moreover, the applicant testified at the hearing that CX2 had come to his cell
after the incident and had asked to hear his side of what had occurred. This
was supported by Officer Jensen’s testimony, although he could not remember any
details and no report was filed. I also note that the chairperson found the
applicant not to be a credible witness and Officer Jensen to be a credible
witness.
[35]
In
light of the evidence before the chairperson and the chairperson’s credibility
findings, I find nothing unreasonable with his finding that the institution had
considered informal resolution to the extent required. I would not allow the judicial
review on this ground.
[36]
Issue
4
Did the chairperson err in
finding the applicant not to be credible?
The chairperson’s credibility
findings are owed a high degree of deference. The chairperson found the
applicant not to be a credible witness. The applicant claims that the only
underlying reason supporting the negative credibility finding was the
implausibility of the applicant’s submission that the alleged victim had asked
the applicant for a cigarette when they all entered the yard. I disagree. The
applicant submitted that while the chairperson stated that the alleged victim
was already smoking when he entered the yard and thus would not have asked for
a cigarette, the video shows otherwise. Having reviewed the video, I find
nothing unreasonable with the chairperson’s credibility findings. Moreover,
given the video recording evidence, I note the implausibility of the
applicant’s defence of consent which further contributed to the chairperson’s
negative credibility finding. I would not allow the judicial review on this
ground.
[37]
Issue
5
Did the chairperson err in
his finding that the applicant’s actions towards the alleged victim were not
consensual?
The applicant submitted that
the chairperson erred in finding that the applicant’s actions were not
consented to by the alleged victim. The respondent submitted that the chairperson’s
finding was in no way unreasonable given the video recording and Officer
Jensen’s credible testimony. The relevant portions of the chairperson’s
decision read as follows:
[The applicant] stated further that [the
alleged victim] is his friend, and that he “tried to motivate him” and that
they had known each other for “about 7 months”. [The applicant] went on to
state that the activity was merely “horseplay”, and that he had no intention to
assault [the alleged victim]. He did prevent [the alleged victim] from
re-entering the unit, but alleges that he was merely trying to talk to him, to
remind him of a show that [the alleged victim] wanted to see.
[…]
I find [the applicant’s] evidence to lack
credibility. The actions portrayed on video tape are clearly not welcomed by [the
alleged victim]. There is no time in which [the alleged victim] ever indicates
that he is enjoying the interaction between himself and [the applicant] (and
the third person). The suggestion that such a one sided series of actions could
be described as “horseplay” is fully rejected. I conclude that the actions of
[the applicant] and the third person were definitely aggressive toward [the
alleged victim].
[38]
Having
reviewed the video recording of the incident and in light of the chairperson’s
credibility findings, I am satisfied that the chairperson’s finding is in no
way unreasonable. The video recording provides ample evidence upon which the chairperson
could render the finding that beyond a reasonable doubt, the actions of the
applicant were not consensual on the part of the alleged victim. The applicant
submitted that his testimony provided a reasonable doubt and therefore the chairperson
erred in his finding. In light of my above finding that the chairperson’s
credibility findings were in no way unreasonable, I cannot accept this
argument. I see no reason to interfere with the chairperson’s finding on this
issue.
[39]
The
application for judicial review is therefore dismissed.
JUDGMENT
[40]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Corrections and
Conditional Release Act, R.S. 1992, c. 20:
|
40. An inmate commits a disciplinary
offence who
. . .
(h) fights
with, assaults or threatens to assault another person;
41.(1) Where a
staff member believes on reasonable grounds that an inmate has committed or
is committing a disciplinary offence, the staff member shall take all
reasonable steps to resolve the matter informally, where possible.
(2) Where an
informal resolution is not achieved, the institutional head may, depending on
the seriousness of the alleged conduct and any aggravating or mitigating
factors, issue a charge of a minor disciplinary offence or a serious
disciplinary offence.
|
40.
Est coupable d’une infraction disciplinaire le détenu qui :
. .
.
h)
se livre ou menace de se livrer à des voies de fait ou prend part à un
combat;
41.(1)
L’agent qui croit, pour des motifs raisonnables, qu’un détenu commet ou a
commis une infraction disciplinaire doit, si les circonstances le permettent,
prendre toutes les mesures utiles afin de régler la question de façon
informelle.
(2)
À défaut de règlement informel, le directeur peut porter une accusation
d’infraction disciplinaire mineure ou grave, selon la gravité de la faute et
l’existence de circonstances atténuantes ou aggravantes.
|
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