Date:
20130613
Docket:
T-746-12
Citation:
2013 FC 652
Vancouver, British Columbia,
June 13, 2013
PRESENT: The
Honourable Madam Justice Heneghan
BETWEEN:
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DONALD FRASER PICHÉ
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
ORDER AND ORDER
INTRODUCTION
[1]
Mr.
Donald Fraser Piché (the “Applicant”) seeks judicial review of the decision of
an Independent Chairperson (the “IC”), affirming a conviction pursuant to the Corrections
and Conditional Release Act, S.C. 1992, c. 20 (the “Act”).
BACKGROUND
[2]
The
Applicant is an inmate of the Kent Institution in Agassiz, British Columbia. On
January 30, 2012, he was randomly selected by an Institutional Urinalysis
Officer (“the Officer”) to provide a urine sample pursuant to subsection 54(b)
of the Act.
[3]
The
Applicant, according to the Officer’s Statement/Observation Report found in the
Certified Tribunal Record (“CTR”), indicated that he could not comply with the
request at the time but could do so once he had the chance to drink some water.
When the Officer indicated that there was tap water in the collection room, the
Applicant said that there were no cups available. The Officer said that he
would find cups.
[4]
When
the Applicant asked if he could return to his unit until he would be able to
comply with the request to provide a urine sample, the Officer advised that
this request could not be granted since policy required that the Applicant be
monitored for the entire two hour collection period. That policy is set out in
the Commissioner’s
Directive on Urinalysis Testing in Institutions (No. 556-10, October 26, 2010) (the
“Directive”).
[5]
Again
according to the Officer’s Observation Report, the Applicant was unwilling to
wait with the Officer for two hours. The Applicant also indicated to the
Officer that he should issue a charge because the Applicant was refusing to
provide a urine sample. A charge was issued on January 31, 2012.
[6]
A
hearing was held before the IC on March 7, 2012. The Applicant offered an
explanation for refusing to provide a sample. He said that he had urinated
prior to being asked to provide a urine sample. He also advised that he was
taking medication for hepatitis C and that “… once you use the washroom, you’re
not using the washroom for 6-7 hours.”
[7]
The
IC noted that the Applicant’s explanation was not consistent with the contents
of the Officer’s Observation Report. The Officer was asked to speak and he
confirmed the contents of his report.
[8]
The
IC did not accept the Applicant’s explanation and found him guilty of a refusal
to provide a urine sample, imposing a fine of $50.00.
[9]
The
Applicant raises the following issues in this application for judicial review:
1) Did the IC lack jurisdiction to enter a
conviction because he failed to consider whether the Officer attempted to
informally resolve the matter as required by subsection 41(1) of the Act?
2) If the IC had jurisdiction to enter a
conviction, was the conviction unreasonable on the grounds that the IC did not
consider whether the Officer had attempted to informally resolve the matter
pursuant to subsection 41(1) of the Act?
3)
Was
the conviction unreasonable because the IC did not consider the Applicant’s
medical grounds for refusing to provide a urine sample?
4)
Does
the procedure for collecting urine samples from inmates with medical conditions
violate the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982,
c.11 (the “Charter”)?
DISCUSSION
[10]
The
first matter to be addressed is the standard of review. The issue of the IC’s
jurisdiction is a question of law and is reviewable on the standard of
correctness; see the decision in Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190 at paras. 58-59. The issues about the entry of the conviction
involve questions of mixed fact and law and are reviewable on the standard of
reasonableness; see Dunsmuir, supra, at para. 51. The alleged
Charter breach raises a question of law and is reviewable on the standard of
correctness (Canada (Minister of
Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339 at para. 44).
[11]
The
correctness standard means that a reviewing court will not show deference to
the decision-maker’s reasoning process and will substitute its own view by
providing the correct answer; see Dunsmuir, supra,
para. 50.
In Dunsmuir, supra, the Supreme Court of Canada described the
reasonableness standard as follows, at paragraph 47:
…A
court conducting a review for reasonableness inquires into the qualities that
make a decision reasonable, referring both to the process of articulating the
reasons and to outcomes. In judicial review, reasonableness is concerned mostly
with the existence of justification, transparency and intelligibility within
the decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[12]
The
legislation relevant to this application for judicial review is the Act,
specifically section 40, section 41 and section 56. Subsection 40(l) is
relevant 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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[13]
Subsection
41(1) and section 56 are also relevant and provide as follows:
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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.
[…]
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.
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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.
[…]
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.
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[14]
The
first issue raised by the Applicant is whether the IC had jurisdiction to enter
a conviction if the Officer failed to seek an informal resolution of the
matter, contrary to section 41.
[15]
The
Applicant submits that the failure to seek an informal resolution deprives the
IC of jurisdiction. The Respondent takes the position that the IC did not err
when concluding that the Officer had indeed taken steps to resolve the matter
and that in any event, the Act does not require that the jurisdiction of the IC
depend upon an attempt to informally resolve an issue.
[16]
In
Laplante v. Canada (Procureur général) (2003), 313 N.R. 285 (F.C.A.),
the Federal Court of Appeal reviewed a chairperson’s decision relating to a
disciplinary conviction. The Court concluded that the chairperson had
jurisdiction to consider whether the charging officer had attempted informal
resolution. At paragraph 12 the Court said the following:
Having
said this, I am unable to see how and why a properly constituted disciplinary
court, with jurisdiction over the matter, the person and the place, can lose
its jurisdiction as a result of the failure of a third party, in this case a
Correctional Services officer, to comply with an inmate’s right. This amounts
to saying, for example, that a criminal court loses jurisdiction to hear and
determine a charge brought against a person owing to the failure of a police
officer to inform that person of his right to counsel. On the contrary, the
criminal court, in the exercise of its jurisdiction, is vested with the
authority to ensure compliance with the rights of an accused during the process
leading to the charge. To my way of thinking, the Board is in the same
situation. Far from being deprived of its jurisdiction to hear the complaint
that has been laid, the Board has the power to satisfy itself that the inmate’s
rights under the disciplinary system have been respected and, if need be, to
take steps to safeguard them.
[17]
Applying
this finding to the present case, I reject the Applicant’s challenge to
jurisdiction. The IC had jurisdiction to adjudicate the charge against the
Applicant.
[18]
Did
the IC err in failing to consider whether the Officer attempted to resolve the
issue informally?
[19]
The Applicant
argues that the IC erred by finding the Applicant guilty where informal
resolution was not attempted. The Respondent submits that informal attempts at
resolution are not mandatory, and that the Applicant’s right under subsection
41(1) of the Act must be raised at the earliest opportunity before the IC. The
Respondent further argues that even if the IC had considered informal
resolution, the Officer took reasonable steps to assist the Applicant in
providing a sample.
[20]
In
my view, the Federal Court of Appeal’s decision in Laplante, supra,
completely answers this argument. At paragraphs 21-22 of that decision, the
Court stated that an inmate could not raise the issue of a failure to seek
informal resolution of an issue, for the first time, at judicial review:
As
we saw earlier, subsection 41(1) gives an inmate a relative right (where
possible) to have all reasonable steps taken to resolve the issue in dispute
informally. This right must be cited at the earliest opportunity before the
chairperson of the Board, failing which, like the other rights of an inmate, it
is subject to the waiver principle: see, for example, R. v. Clarkson,
[1986] 1 S.C.R. 383, 66 N.R. 114; 69 N.B.R. (2d) 40; 177 A.P.R. 40, at pages
394 et seq [S.C.R.]; R. v. M.C.H., [1998] 2 S.C.R. 449; 230 N.R. 1; 113 O.A.C.
97, at paragraphs 47 and 113.
We
have been informed by counsel for the appellant that the new offence report and
notice of the charge form sent to the chairperson of a Board indicates whether
steps were taken to reach an informal resolution and, if not, the reasons why
it was impossible to take such steps in the circumstances. A copy of this
report and notice is given to the inmate: section 42 of the Act and section 25
of the Regulations. So informed of his right and the fate reserved to it by
Correctional Services, an inmate can in my humble opinion hardly escape the
presumption of waiver if he does not submit to the chairperson of the Board his
request that the matter be returned to the penitentiary administration: see Clarkson,
supra.
[21]
In
the present case, there is no evidence that the Applicant raised any question
about informal resolution of the charge at any time before filing his
application for judicial review. There is no evidence that he raised it before
the Officer on January 30, 2012, when he was asked to provide a urine sample.
There is no evidence that he raised it before the IC in the hearing that was
held on March 7, 2012.
[22]
The
record is unclear as to whether informal resolution was attempted.
Nevertheless, even if the Applicant had raised this issue with the IC, I am not
persuaded that an attempt at informal resolution would have led to a different
outcome. The IC accepted the Officer’s evidence that the Applicant told him
that the Officer might as well charge him. I do not see how, in this situation,
informal resolution was an option. From the evidence in the record the
Applicant was refusing the legitimate order to provide a urine sample. A
refusal could lead to a disciplinary charge which, in fact, happened.
[23]
In
addition, the policies relating to urinalysis testing do not include guidance
specific to this situation. The Directive sets out details on the procedure to
be followed in testing. Correctional Services Canada Bulletin 2004-01 dated
July 9, 2004, entitled “Shy Bladder Syndrome and Urinalysis Collection in the
Institution” provides that when an inmate says that he or she cannot provide a
sample due to a shy bladder, the collecting officer is to proceed to informal
resolution. The Bulletin further states that in these cases only, informal
resolution consists of a strip search and a search of the collection area.
[24]
The
third issue is whether the IC erred by failing to consider the Applicant’s
medical condition in adjudicating the charge against him. The Applicant submits
that the IC ignored this fact and should have adjourned the hearing to verify
his medical condition. The Respondent argues that the IC noted that the
Officer’s Observation Report did not record that the Applicant offered a
medical reason for his refusal. As well, the Observation Report does not say
that the Applicant requested an adjournment to allow an investigation of his
physical condition.
[25]
The
Applicant raised the issue of his medical condition before the IC. The IC then
stated that the Applicant’s explanation was not consistent with the Officer’s
Observation Report.
[26]
The
Report stated that the Applicant had told the Officer that he was not willing
to wait for two hours and that the Officer might as well just charge him. The
Officer repeated this explanation at the hearing and added that he had informed
the Applicant of the consequences of his refusal and took him at his word that
he was refusing. When asked to respond to this evidence, the Applicant simply
stated that the IC could find him guilty and repeated his statement that the
medication interfered with his system.
[27]
I
note that in his affidavit on this application for judicial review, the
Applicant claims that he told the Officer that he was on medication which would
prevent him from giving a sample for hours.
[28]
I
have two comments about this evidence. First, the hearing transcript shows that
the Applicant did not make this claim at the hearing. The IC did not have any
evidence before him that the Applicant had raised his medical condition with the
Officer. Accordingly, given the evidence before him, the IC’s decision was
reasonable.
[29]
Second,
an application for judicial review proceeds only on the basis of the evidence
that was before the initial decision-maker, in this case, the IC, unless leave
is granted to allow the introduction of further evidence. No such leave was
requested or granted in this case.
[30]
The
contents of the Applicant’s affidavit will be given little weight.
[31]
It
is not necessary for me to address the Applicant’s Charter argument since the
matter can be disposed of otherwise; see the decision in Law Society of
Upper Canada v. Skapiner, [1984] 1 S.C.R. 357 at page 383 in which Justice
Estey stated:
The
development of the Charter, as it takes its place in our constitutional law,
must necessarily be a careful process. Where issues do not compel commentary on
these new Charter provisions, none should be undertaken.
[32]
In
the result, I am satisfied that the IC acted within his jurisdiction in
adjudicating the disciplinary charge against the Applicant and made a
reasonable decision having regard to the evidence before him.
[33]
The
application is dismissed, with costs to the Respondent, as requested. In the
exercise of my discretion pursuant to the Federal Courts Rules,
SOR/98-106, I assess those costs at $250.00 inclusive of fees and disbursements
and taxes.
ORDER
THIS
COURT ORDERS that the application is dismissed, with costs
to the Respondent. In the exercise of my discretion pursuant to the Federal
Courts Rules, SOR/98-106, I assess these costs at $250.00 inclusive of fees
and disbursements and taxes.
“E. Heneghan”
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