Docket: T-1941-13
Citation:
2014 FC 1065
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 13, 2014
PRESENT: The Honourable Madam Justice Bédard
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BETWEEN:
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BRYAN BOUCHER-CÔTÉ
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant is presently in custody at the
Donnacona Institution (the Institution). He is seeking judicial review of a
decision dated October 28, 2013, by an independent chairperson (IC) who
convicted him of a serious disciplinary offence, namely assaulting a
correctional officer. For the reasons that follow,
the application for judicial review is dismissed.
I.
Background
[2]
At the time of the incidents, the applicant was
an inmate at the Federal Training Centre. On September 14, 2013, the
applicant’s cell was searched by two correctional officers, Martine Champagne-Lefebvre
and Cronic Victome, as part of a monthly search. During the search, the
officers found a jar containing substances that had a strong odour. It is admitted
that the applicant took the jar out of Officer Champagne‑Lefebvre’s hands
and ran off with it.
[3]
The same day, the applicant received a disciplinary
report for violently pushing Officer Champagne-Lefebvre. The report states the
following: [translation] “Inmate Boucher Côté . . . pushed me violently after which I
left his cell following a monthly search.”
[4]
The applicant was subsequently charged with a
serious disciplinary offence. Section 40 of the Corrections and
Conditional Release Act, SC 1992, c 20 [the Act] sets out a series of
behaviours that constitute disciplinary offences. In this case, the applicant
was charged under paragraph 40(h) of the Act, which states as
follows:
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Disciplinary offences
40. An inmate commits a disciplinary offence who
(h) fights with, assaults or threatens
to assault another person;
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Infractions disciplinaires
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;
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[5]
Where an indictment is laid with respect to a
serious disciplinary offence, the charge is heard before an IC (subsection 27(2)
of the Corrections and Conditional Release Regulations, SOR/92-620 [the
Regulations] appointed by the Minister of Public Safety and Emergency
Preparedness.
[6]
The onus of proof that applies to disciplinary
offences is the same as in criminal cases. Accordingly, the evidence must
establish beyond a reasonable doubt that the inmate committed the offence in
question. In this regard, subsection 43(3) of the Act provides as follows:
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Decision
(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.
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Déclaration de culpabilité
(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.
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II.
Hearing and IC’s decision
[7]
The hearing took place on October 28, 2013.
The applicant denied doing the acts in question and pleaded not guilty at the
hearing.
[8]
The Institution’s evidence consisted of two
witnesses: the two officers who conducted the search. The defence evidence was
composed of the applicant’s testimony and that of another inmate.
[9]
Officer Champagne-Lefebvre testified that the
applicant had pushed her violently when he took the jar from her hands before
running off. The applicant, for his part, acknowledged taking the jar from the
officer’s hands and admitted it was a rash action on his part. However, he
denied pushing the officer or having any intention to push her.
[10]
The fellow inmate who testified stated that he
had not seen the applicant push Officer Champagne-Lefebvre. He conceded,
however, that he had not seen everything that had happened during the incident.
[11]
The IC found the applicant guilty of committing
the offence he was charged with: assaulting Officer Champagne-Lefebvre.
[12]
It appears from the transcript of the hearing
that the IC did not accept the applicant’s version but did accept Officer Champagne-Lefebvre’s.
He also did not assign any probative value to the fellow inmate’s testimony
because he admitted that he had not maintained constant visual contact during
the entire incident.
III.
Issue
[13]
This application raises only one issue: did the
IC commit a reviewable error in convicting the applicant?
IV.
Standard of review
[14]
The applicant submits that the IC’s decision
should be reviewed on a standard of correctness because he committed an error
of law in assessing the legal tests regarding the prescribed burden of proof.
From his perspective, this is an error on a question of law that is of central
importance for the legal system and is outside the IC’s area of expertise (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 55, [2008] 1 S.C.R. 190 [Dunsmuir]).
[15]
For his part, the respondent submits that the IC’s
decision raises questions of mixed fact and law that are reviewable on a
reasonableness standard (McDougall v Canada (Attorney General), 2011 FCA
184 at para 24, [2011] FCJ No 841).
[16]
I agree with the respondent. In his decision,
the IC had to determine whether the evidence enabled him to find, beyond a
reasonable doubt, that the applicant had committed the offence he was charged
with. To do so, he had to apply the legal principles on reasonable doubt to the
facts put in evidence. His decision therefore raised questions of mixed fact
and law that are reviewable on a reasonableness standard. On a number of
occasions, our Court has recognized that the assessment of an inmate’s guilt in
cases of disciplinary law in a prison setting is subject to a reasonableness
standard (Forrest v Canada (Attorney General), 2002 FCT 539 at para
17-18, [2002] FCJ No 713 [Forrest], affirmed by Forrest v Canada (Attorney
General), 2004 FCA 156 at para 8, [2004] FCJ No 709; Brennan v Canada (Attorney
General), 2009 FC 40 at para 29, [2009] FCJ No 81; Lemoy v Canada (Attorney
General), 2009 FC 448 at para 14, [2009] FCJ No 589 [Lemoy]; Cyr
v Canada (Attorney General), 2011 FC 213 at para 13, [2011] FCJ No 245; Tremblay
v Canada (Attorney General), 2011 FC 404 at para 5, [2011] FCJ No 503; Gendron
v Canada (Attorney General), 2012 FC 189 at para 12, [2012] FCJ No 202 [Gendron];
Fraser Piché v Canada (Attorney General), 2013 FC 632 at para 10, [2013]
FCJ No 683).
V.
Positions of the parties
A.
Applicant’s arguments
[17]
The applicant makes two allegations against the IC
that are closely related. He submits that the IC misapplied the appropriate
legal tests where the burden of proof is proof beyond a reasonable doubt. He
also criticizes the IC for issuing a brief decision with inadequate reasons. According
to the applicant, the IC did not really explain why he accepted Officer
Champagne‑Lefebvre’s testimony or why his testimony and that of his
fellow inmate did not raise a reasonable doubt. In short, he criticizes the IC
for assigning more weight to the correctional officer’s testimony than to his
own without explaining the reason for that choice.
[18]
The applicant pointed out that in Ayotte v
Canada (Attorney General), 2003 FCA 429 at para 14, [2003] FCJ No 1699 [Ayotte],
the Federal Court of Appeal clearly established that disciplinary tribunals in
a prison setting are required to follow the teachings of the Supreme Court of
Canada in R v W(D), [1991] 1 S.C.R. 742, [1991] SCJ No 26 [R v W(D)]
on reasonable doubt.
[19]
The applicant contends that the IC set out the
three elements in the test developed in R v W(D) but did not apply them.
He argues therefore that the IC’s reasons are insufficient and that it is
difficult, if not impossible, to know why he was found guilty. He bases his
position on the following passage from Cyr v Canada (Attorney General),
2010 FC 94 at para 22, [2010] FCJ No 90:
[22] I believe that the remarks of Justice
Binnie in R. v. Sheppard,
2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869 may be of assistance. He mentions
that the purpose of reasons is to preserve and enhance meaningful appellate
review of the correctness of the decision (paragraph 25). He writes that
“[t]he threshold is clearly reached . . . where the appeal court
considers itself unable to determine whether the decision is vitiated by error”
(paragraph 28). In Ayotte, the Federal Court of Appeal recognized that persons charged with
disciplinary offences have the same procedural safeguards as those in ordinary
trials, in terms of defences, and the same goes for the adequacy of reasons.
[20]
The applicant also submits that the existence of
two contradictory versions raised a doubt about two elements of the offence and
that the IC erred by not really asking whether his testimony and the totality
of the evidence raised a reasonable doubt. The applicant argues that the
situation in this case is similar to the one in Zanth v Canada (Attorney
General), 2004 FC 1113 at para 17, [2004] FCJ No 1344 [Zanth]. In
that case, the Court concluded that the IC had erred because he had simply
given more credence to the correctional officers without considering whether
the offence had been proven beyond a reasonable doubt.
[21]
The applicant maintains that the same error was
recognized in Ayotte, and he referred to the following passage from the
judgment:
22 Moreover,
the chairperson of the disciplinary court misdirected himself on the law in
this case where credibility was important because all of the evidence rested on
the contradictory testimony of the two witnesses. Even if he did not believe
the appellant's testimony, he had to acquit him if a reasonable doubt subsisted
as to his guilt. Even if he did not believe the appellant's deposition, he
should have examined it in the context of the evidence as a whole and the
reasonable inferences that he could draw from each and every piece of evidence.
But after that examination he had to acquit him if he was not convinced of his
guilt beyond a reasonable doubt. A reading of the transcript of the arguments
clearly indicates that the chairperson of the disciplinary court did not
conduct this exercise. He was content to make an inappropriate equation between
the appellant's guilt and his absence of credibility, thereby altering the
standard of proof required by the Act to support a guilty verdict.
[Emphasis
added]
[22]
The applicant also referred the Court to the Lemoy
decision, where the Court allowed an application for judicial review
because the IC failed to consider a number of exculpatory elements cited by the
inmate in the defence he had raised.
B.
Respondent’s arguments
[23]
The respondent submits that the IC did not err
in applying the tests developed by the Supreme Court in R v W(D) with
respect to the principles that apply to the standard of proof beyond a
reasonable doubt where credibility issues are involved.
[24]
The respondent indicates that the IC himself had
pointed out the principles enunciated in R v W(D) and argues that it is
clear from his decision that he applied those principles even though he did not
specifically use the terms utilized in R v W(D).
[25]
He contends that the IC considered the
applicant’s version but did not believe it and that he explained why he did not
believe his version of the incident. As for the testimony of Officer Champagne-Lefebvre,
the IC found that there was no basis for him to set aside and disbelieve her
version. The respondent submits that the IC also analyzed the testimony of the
other inmate and explained why he assigned no probative value to it. Accordingly,
the respondent argues that the IC analyzed all the evidence before concluding
that the evidence did not raise a reasonable doubt.
[26]
The respondent maintains that the context of
this case is quite different from that of Ayotte, Zanth and Lemoy.
The respondent argues that, in those three judgments, the IC’s error had been
to not assess a defence raised by the inmate at the hearing, which is not the
case here. The respondent contends that the applicant did not present a
defence; instead, he denied doing the acts in question.
VI.
Analysis
[27]
It is well settled that disciplinary charges in
a prison setting are heard as part of an administrative process, which must be
flexible and fair, and that the IC plays an inquisitorial role. In Forrest,
at para 16, the Court reiterated the principles that govern discipline in a
prison setting and have been recognized by our Court for many years:
16 The nature of the standard of review
for a disciplinary court in a penitentiary was set out in Canada (Correctional Services) v. Plante, [1995] F.C.J. No. 1509 (F.C.T.D.) per Pinard J.:
6 The nature and functions of the
disciplinary court in question were well summarized by my colleague Denault J.
in Hendrickson v. Kent Institution Disciplinary Court
(Independent Chairperson) (1990), 32 F.T.R. 296, at 298 and 299:
The principles governing the
penitentiary discipline are to be found in Martineau (No. 1) (supra) and
Martineau v. Matsqui Institution Disciplinary Board (1979), 1979 CanLII 184
(SCC), 30 N.R. 119;50 C.C.C. (2d) 353 (S.C.C.); Blanchard v. Disciplinary Board
of Millhaven Institution (1982), 69 C.C.C. (2d) 171
(F.C.T.D.); Howard v. Stony Mountain Institution Inmate Disciplinary
Court (1985), 57 N.R. 280; 19 C.C.C. (3d) 195 (F.C.A.), and may be summarized
as follows:
1. A hearing conducted by an
independent chairperson of the disciplinary court of an institution is an
administrative proceeding and is neither judicial nor quasi-judicial in
character.
2. Except to the extent there are
statutory provisions or regulations having the force of law to the contrary,
there is no requirement to conform to any particular procedure or to abide by
the rules of evidence generally applicable to judicial or quasi-judicial tribunals
or adversary proceedings.
3. There is an overall duty to act
fairly by ensuring that the inquiry is carried out in a fair manner and with
due regard to natural justice. The duty to act fairly in a disciplinary court
hearing requires that the person be aware of what the allegations are, the
evidence and the nature of the evidence against him and be afforded a
reasonable opportunity to respond to the evidence and to give his version of
the matter.
4. The hearing is not to be conducted
as an adversary proceeding but as an inquisitorial one and there is no duty on
the person responsible for conducting the hearing to explore every conceivable
defence, although there is a duty to conduct a full and fair inquiry or, in
other words, examine both sides of the question.
5. It is not up to this court to review
the evidence as a court might do in a case of a judicial tribunal or a review
of a decision of a quasi-judicial tribunal, but merely to consider whether
there has in fact been a breach of the general duty to act fairly.
6. The judicial discretion in relation
to disciplinary matters must be exercised sparingly and a remedy ought to be
granted “only in cases of serious injustice” (Martineau No. 2, p. 360).
[See also Ayotte,
at para 9]
[28]
These principles were reiterated recently in Gendron,
at para 15. Moreover, section 37 of Commissioner’s Directive 580 sets out
the flexibility that prevails in the presentation of evidence:
37. The rules of evidence in criminal matters
do not apply in disciplinary hearings. The Chairperson conducting the
disciplinary hearing may admit any evidence he/she considers reasonable or
trustworthy.
[29]
This flexibility does not, however, relieve the
IC from his or her obligation to be satisfied beyond a reasonable doubt, in
light of all the evidence, that the inmate committed the offence that the
inmate is charged with (subsection 43(3) of the Act).
[30]
In Ayotte, at para 14, the Federal Court
of Appeal clearly stated that the principles developed by the Supreme Court of
Canada regarding the model for analyzing evidence where the burden is proof
beyond a reasonable doubt constitutes a rule of law that applies to
disciplinary matters in a prison setting. Justice Létourneau said the
following:
14 With respect, the principles laid down
by the Supreme Court in R. v. W.(D), supra, are much more than just model directions for the jury in a
criminal case. They are in fact a rule of law applicable to all judges and all
tribunals called upon to assess and weigh the evidence when the law requires that
they be satisfied beyond a reasonable doubt of the accused's guilt. This is the
case here.
15 In fact, subsection 43(3) of the Act
provides that the person conducting the hearing of a prison disciplinary
complaint “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”:
. . .
16 The decision-maker's obligation to be
satisfied beyond a reasonable doubt of the guilt of the accused as well as the
onus imposed on the complainant or on the prosecutor to provide such evidence
are inextricably linked to the presumption of innocence: R. v. Lifchus, 1997 CanLII 319 (SCC),
[1997] 3 S.C.R. 320, at paragraph 13. “It is one of the principal safeguards
which seeks to ensure that no innocent person is convicted.”: ibidem. The failure to understand and to
properly apply this standard of proof irreparably prejudices the fairness of
the trial or the hearing: ibidem.
[31]
In R v W(D), the Court set out as follows
the model of analysis that should guide the decision‑maker who must apply
the reasonable doubt rule in cases where credibility is important:
26 It
is clear that the trial judge erred in his recharge. It is incorrect to
instruct a jury in a criminal case that, in order to render a verdict, they
must decide whether they believe the defence evidence or the Crown's
evidence. Putting this either/or proposition to the jury excludes the
third alternative; namely, that the jury, without believing the accused, after
considering the accused's evidence in the context of the evidence as a whole,
may still have a reasonable doubt as to his guilt.
27 In
a case where credibility is important, the trial judge must instruct the jury
that the rule of reasonable doubt applies to that issue. The trial judge
should instruct the jury that they need not firmly believe or disbelieve any
witness or set of witnesses. Specifically, the trial judge is required to
instruct the jury that they must acquit the accused in two
situations. First, if they believe the accused. Second, if they do
not believe the accused's evidence but still have a reasonable doubt as to his
guilt after considering the accused's evidence in the context of the evidence
as a whole. See R. v. Challice
(1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v.
Morin, supra, at p. 357.
28 Ideally,
appropriate instructions on the issue of credibility should be given, not only
during the main charge, but on any recharge. A trial judge might well
instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must
acquit.
Second, if you do not believe the testimony of the accused but you are
left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the
accused, you must ask yourself whether, on the basis of the evidence which you
do accept, you are convinced beyond a reasonable doubt by that evidence of the
guilt of the accused.
If that formula
were followed, the oft repeated error which appears in the recharge in this
case would be avoided. The requirement that the Crown prove the guilt of
the accused beyond a reasonable doubt is fundamental in our system of criminal
law. Every effort should be made to avoid mistakes in charging the jury
on this basic principle.
[32]
The applicant contends that, although the IC
indicated he was bound by this model of analysis, in fact he did not apply it.
With respect, and despite the effective representations of counsel for the
applicant, I disagree. I agree that the IC’s decision could have been better
structured and clearer, but I believe that the transcript of the hearing shows
that the IC applied the principles established in R v W(D).
[33]
First, it is clear from the decision that the IC
did not believe the applicant’s version that he did not push the correctional
officer. In my opinion, the IC explained why he did not accept the applicant’s
version based on his testimony when he explained why he had wanted to grab the
jar that the correctional officers found in his cell during the search. The
applicant explained that he had an interest in not being caught with illicit
substances because that would adversely affect his hearing before the Parole
Board of Canada, which was scheduled for shortly thereafter. The IC found that,
for the same reasons, the applicant had an interest in not giving an accurate version
of what had happened when he took the jar from Officer Champagne-Lefebvre’s hands.
The transcript also shows that the IC also considered the fact that the
applicant had admitted taking the jar from the officer’s hands and that this
action must have involved some force. Here is the relevant passage from the
transcript of the hearing:
[translation]
You . . . you
even said yourself that you had an interest in not being caught with substances
because that would have an impact on your hearing that was coming before the
Board in April. I am inclined to apply the same principle: you would have an
interest in not giving an accurate version of the assault because that could
also have an impact on your hearing at the . . . the hearing before the Parole
Board in April; I am saying that with respect.
The evidence I have before me, which is undeniable,
is that you yourself admitted . . . you took, removed, stole, the term doesn’t
matter, the jar from an officer’s hands. I assume that that still takes force
to do it. Regardless of whether it was slight, that still takes force, and an
assault is the application of force to a person.
Whether it was a violent push or you had some
contact, for my part, I will not change my decision on this point.
You said yourself that it happened in . . . a
fraction of a second. She did not have time to react. If it was too fast for
everyone, maybe it was too fast for you as well.
[pp. 144-145 of the transcript, pp. 149 and
150 of the Applicant’s Record]
[34]
I therefore find that the IC explained why he
did not believe the applicant’s version. The IC then addressed the other
evidence, including the testimony of Officer Champagne-Lefebvre and the other
inmate before concluding that there was no evidence, in his mind, that raised a
reasonable doubt.
[35]
The IC indicated that he believed the testimony
of Officer Champagne-Lefebvre, who stated that the applicant had pushed her
and, in my opinion, he explained why he believed her version. The transcript of
the hearing shows that the IC determined there was no reason to doubt Officer
Champagne-Lefebvre’s testimony and that, in his opinion, the testimony of the
other inmate did not contradict the officer’s testimony because he admitted
that everything happened quickly and that he may not have seen everything. Here
is the relevant passage:
[translation]
. . . It is Officer Lefebvre who stated . . .
stated that you pushed her.
I have no reason to doubt her testimony.
However, the jurisprudence teaches me that I cannot assign more credibility to
an officer based on the mere fact that he or she is an officer. I have always
said: for me, those two witnesses are at the same level, and I am convinced
that there are officers who occasionally also lie before the Court. Therefore,
I must be very careful about that.
But I assume she told you that you pushed her,
and I tend to believe her on that issue.
What contradicts this is the testimony of
inmate Seehing Kee, who said that he did not see 100%, that he saw a
commotion—that was his expression—and that he . . . that he saw you in the
process of taking the jar and leaving. He also agreed that it happened quickly.
Yes, in the. . . in answer to a question asked
by Mr. Tabah, he stated that he did not see a push when he looked, and
when he was looking, it was most of the time, but he also admitted that there
was maybe some times when I did not see. But he also said in a . . . in answer to
a question asked by the assessor Alexandre Marc: he could not say whether
there was physical contact, whether it was violent in the sense that it could
be interpreted or violent in the sense that someone could give it. From the
time that there was physical contact, I think that is . . . the criteria for an
assault have been met, and that is the primary element of the offence.
And I must take the offence as a whole, which took place in a few seconds, the fact that you had an
interest in not taking . . . in not being caught with substances, that you
decided, a conscious decision. . . .just removing a piece of paper or a pencil
from an officer, that is already going too far. You left in a few seconds, you went
over the other agent.
For all the circumstances, I have no basis
for setting aside, quite the opposite, Officer Lefebvre’s testimony. . . .
[Emphasis added]
[pp. 145-147 of the transcript, pp. 150 and 152
of the Applicant’s Record]
[36]
The IC then indicated that the evidence apart
from the applicant’s testimony did not raise a reasonable doubt in his mind:
[translation]
The decision has been made. I’m going to
explain it just once, with all due respect, it’s not just the fact that you
took a jar, but at that point, you did not . . . considering all the
circumstances of the case, I believe the officer who says that you pushed her. I
consider that the evidence, other than your testimony, which says that there
was no physical contact, the independent witness cannot categorically state
that there was none.
As for me, he talks about commotion and, as
for me, if there was a commotion, you removed something, and there was
shouting. This happened in a fraction of a second. I must believe the
officer, then everything that took place incidentally does not raise a
reasonable doubt for me,
[Emphasis added]
[pp 148-149 of the transcript , pp 153-154 of
the Applicant’s Record]
[37]
Accordingly, I find that the IC applied the R
v W(D) principles. I also find that the evidence as a whole could support a
conclusion that no reasonable doubt had been raised. It is not the role of the
Court to substitute its own assessment of the evidence for that of the IC. His
conclusion, in light of all the evidence, appears reasonable to me.
[38]
The circumstances of this case are different
from those in the authorities cited by the applicant.
[39]
First, in Ayotte, the Court faulted the IC
for not making a determination on one of the inmate’s defences. In addition,
the IC had limited his analysis to the contradictory testimony of the inmate
and a correctional officer, found that he did not believe the applicant and
convicted him. Accordingly, the Court criticized the IC for ignoring the
defence. It also faulted him for disregarding the evidence provided by the
applicant in support of his defence rather than weighing and assessing it. In
this case, the applicant did not put forward a defence; he denied committing
the offence. Moreover, the IC did not fail to analyze the evidence. He
considered and weighed the evidence that consisted of the testimony of the
applicant, the fellow inmate and the two correctional officers before
concluding that the evidence did not raise a reasonable doubt in his mind.
[40]
In Zanth, the inmate had also put forward
a defence: self‑defence. The Court held that the IC had not really
considered the inmate’s defence. Furthermore, in that case, it was clear from
the IC’s decision, which is reproduced at paragraph 9 of the Court’s judgment,
that he had limited his analysis to assessing the credibility of the applicant
and the two correctional officers in convicting the inmate. He did not ask
himself whether the evidence, in its totality, raised a reasonable doubt about
the inmate’s guilt. This is how the IC concluded:
[translation]
So, given that
I am assigning much more credibility to the institution’s testimony, then, in
the circumstances, I find inmate Zanth guilty.
In such a context, Justice Blais’
conclusion, at para 17 of the judgment, is readily understood:
It is clear in this matter that the chairperson
of the court did not comply with this model. He assigned more credibility to
the officers, and his analysis ended there. He did not ask himself whether the
evidence had been made beyond a reasonable doubt.
[41]
In this case, the IC did not limit his analysis
to assessing the credibility of the applicant and the other witnesses. The IC
clearly stated that he thought the alleged events had happened (p 143 of
the transcript, p 148 of the Applicant’s Record) and that the evidence did not
raise a reasonable doubt in his mind (p 149 of the transcript, p 154 of the Applicant’s
Record).
[42]
In Lemoy, the inmate invoked the defence
of self‑defence and relied on a number of factual elements to support his
defence. The IC rejected the inmate’s defence because he had used more force
than necessary. The Court intervened because the IC had not considered a number
of relevant contextual elements for the purposes of analyzing the defence of
self‑defence (para 31) and, in doing so, had not seriously considered the
inmate’s defence (para 35). The situation in this case is different because the
IC in his decision dealt with each piece of evidence that the applicant
presented.
[43]
For all these reasons, I find that the IC
applied the model of analysis dictated by R v W(D), that his assessment
of the evidence was reasonable and that his decision shows the reasons that led
him to conclude that the evidence did not, in his mind, raise a reasonable
doubt with respect to the applicant’s guilt. As Justice Abella stated in Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 16, [2011] 3 S.C.R. 708: “In
other words, if the reasons allow the reviewing court to understand why the
tribunal made its decision and permit it to determine whether the conclusion is
within the range of acceptable outcomes, the Dunsmuir criteria are met.”
I find that in this case the IC’s reasons provide
insight into why he determined that it had been established beyond a reasonable
doubt that the applicant had committed an assault on Officer Champagne-Lefebvre.
I also consider that the IC’s decision falls within “a range of possible, acceptable outcomes which are defensible
in respect of the facts and law” (Dunsmuir,
at para 47).
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