Docket: T-1849-13
Citation:
2014 FC 624
Ottawa, Ontario, June 27, 2014
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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HARMANPAL SIDHU
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application under section 18.1 of the
Federal Courts Act, RSC, 1985, c F-7 for judicial review of a decision
of an Independent Chairperson [the ICP] of the Collins Bay Institution
Disciplinary Tribunal, which found the applicant guilty of an offence
(possession of contraband) under s. 40(i) of the Corrections and Conditional
Release Act, SC 1992, c 20 [Act]. The applicant was found to have
been in possession of a homemade weapon.
II.
Background
[2]
At the relevant time, the applicant was an
inmate at the Collins Bay Institution in a single-occupant cell. On August 22,
2013, that cell was searched by Officer McKenna [Officer] of the Correctional
Service of Canada [CSC]. This was an exceptional or “emergency” search
authorized by the institutional head under s. 53 of the Corrections and
Conditional Release Regulations, SOR/92-620, as distinct from the routine
searches of cells that are conducted on a monthly basis. The Officer found a
homemade weapon hidden in the top tracks of the window sill in the applicant’s
cell. This was a 5-inch piece of what appeared to be fibreglass sharpened to a
point (a “shank”). The Officer saw the end of the shank while using a mirror to
inspect the window sill, and used needle-nosed pliers to remove it.
[3]
The applicant was charged and a hearing took
place on October 9, 2013. At the hearing, the applicant testified that he had
no knowledge of the shank or how it came to be hidden in the window sill of his
cell. His counsel argued that the shank might have been placed there by the
previous occupant of the cell or by another inmate during the periods of the
day when the cells are open and the applicant was normally out in the yard.
[4]
The applicant confirmed that his was a single
cell which he had occupied for three to four months. He said there were routine
searches every month, and may have been a previous emergency search during that
time, but he was not sure. He testified that the routine searches were basic
“in and out” searches that took two or three minutes, and he had not observed
anyone previously searching the window.
[5]
The applicant testified that there were parts of
the day when the cells were open and he went to the yard during these times. He
said others were often in his cell, and “[e]ven when I am
not there people go by they grab stuff if they need something”. On
cross-examination, he stated that he allowed close friends to do this if they
asked him, but maintained that “anyone is capable of
going into my cell any time”.
[6]
The Officer testified that it was common
practice for staff in the institution to check the windows during searches, and
that both routine and emergency searches were thorough and intended to “find all the contraband possible”. He stated that the
shank was “hidden” but not “well
hidden”, and that he was able to just barely see the end of it when
using the mirror to inspect the window. He was not aware of when previous
searches were done or the applicant’s specific movements, as he was not
assigned to any specific range in the institution. He stated that the
applicant’s cell would have been open and accessible to other inmates for approximately
four hours per day. He also testified that the hidden shank would not have
prevented the applicant from using the window normally.
[7]
An Institutional Advisor, Mr. Doering, was also
present at the hearing. He questioned the applicant and the Officer and made
submissions on behalf of the institution. He also intervened to provide
information on several occasions. He stated that routine searches were probably
“even more thorough” than emergency searches, that
all searches, were to be “systematic
and thorough”, and that staff had been instructed to routinely check the
window tracks as they were a common hiding place for weapons. Mr. Doering
stated that emergency searches had been conducted in June and July of 2013.
[8]
In reaching his decision, the ICP summarized the
evidence and distinguished it from the facts in Taylor v. Canada (A.G.),
2004 FC 1536 [Taylor]. Specifically, he noted that the weapon was hidden
in the applicant’s cell so that it could not have been tossed in by another
inmate walking by. The ICP then stated:
Now Mr. Sidhu indicated that his cell is opened
on occasion during the day and the officer I think agrees and it is well known
that the cells are not locked 24 hours a day. They would have to – and the
other issue is that Mr. Sidhu says he allows people to go into his cell even
when he is not there. I think once he allows people to go into his cell then he
opens himself up perhaps for some difficulties to occur because he is giving
permission to people who could very well do something to him, to enter his cell
and perhaps put something there, although I would think that somebody would be
noticed if they are planting a shank in the window sill. It is a time consuming
or it takes time, some time, as opposed to the matter regarding Mr. Taylor
where a knife can be thrown under the bed. This shank here is considerably
different. This is not easily visible. In fact the officer had to use a mirror
to locate it. So if Mr. Sidhu is going to allow people into his cell then I
think he has to accept some responsibility if something occurs by giving them
permission. Otherwise, he puts himself at risk.
On all of the evidence before the court I am
satisfied the shank was found as indicated where the officer said it was and I
am satisfied that that shank belonged to Mr. Sidhu and that he placed it there,
on this particular date and time that it was located by Officer McKenna, and,
accordingly, there will be a finding of guilt.
[9]
The applicant submits that the ICP wrongly based
his finding of guilt on the fact that the applicant allowed people to enter his
cell when it was not locked and he was not present.
[10]
The applicant also submits that, based on the
evidence, it was not open to the ICP to find, beyond a reasonable doubt (as
required by s. 43(3) of the Act), that the applicant was aware of the
weapon in question in his cell.
[11]
Moreover, the applicant argues that there was no
evidence to support any inference by the ICP that (i) it was, in fact, a person
who had permission to be in his cell who placed the weapon there; or (ii)
somebody would be noticed if they were planting a shank in the window sill.
[12]
The applicant asks that the Court quash the
decision of the ICP, which found him guilty of the offence, and enter a finding
of not guilty in its place.
[13]
The respondent argues that, while the ICP
referred to and was critical of the applicant’s practice of allowing others in
his cell while he is not present, that was not the basis of his finding of
guilt. In finding the applicant guilty, the respondent asserts, the ICP
rejected possible scenarios suggested by the applicant at the hearing that the
weapon was left by a previous occupant of the applicant’s cell or by another
inmate who entered the cell while it was unlocked and the applicant was absent.
III.
Issues
[14]
The issues in this proceeding, while differently
stated by the parties, can be summarized as follows:
a. What is the appropriate standard or standards of
review?
b. Did the ICP apply the proper test for possession
of contraband under s. 40(i) of the Act?
c. Did the ICP reach unreasonable conclusions based
on the evidence?
IV.
Standard of review
[15]
The parties are agreed that the standard of
review on the legal test for possession to support a conviction in this case is
correctness. However, the parties are also in agreement that possession
requires actual knowledge by the applicant of the presence of the weapon; it is
not sufficient to show that the applicant should have known of or was wilfully
blind to the presence of the weapon [constructive knowledge]. Because there
will usually be no direct evidence on the point, knowledge can be established
by inference. However, the inference must establish actual knowledge and not
merely constructive knowledge: Taylor, at paras 10-11. Because there is
no dispute on the legal test for possession, the standard of review of that
legal test is not relevant.
[16]
The real dispute between the parties is whether
the ICP relied on constructive knowledge in reaching his conclusion of guilt. The
ICP’s application of the legal test to the evidence and his conclusion on
whether the evidence establishes guilt are questions of mixed fact and law that
are reviewable on the reasonableness standard (Bowden v Canada (Attorney
General), 2008 FC 580 at para 9; Smith v Canada (Attorney General),
2005 FC 1436 at para 29). The parties are essentially on agreement on this
standard of review as well.
V.
Analysis
[17]
On the facts, there is no dispute that the
weapon in question was found in the applicant’s single cell, hidden in the
window sill. There is also no dispute that the applicant’s cell is left
unlocked several times per day and that the applicant is often not present
during these times.
[18]
It appears that there were several searches of
the applicant’s cell, including both routine and emergency searches, during the
period that he occupied the cell. It also appears that officers are trained to
look for weapons hidden in window sills. However, I am mindful of the statement
by the ICP that there was no evidence that any searches of the applicant’s cell
prior to finding the weapon included the window sill: page 26 of the transcript
of the discipline hearing.
[19]
The ICP makes no reference to any inference that
could be the basis for concluding that the applicant’s window sill was searched
during his time in the cell. Mr. Doering made representations to the ICP at the
hearing concerning searches of the applicant’s cell, but the ICP indicated
clearly that he did not consider such representations to be evidence or to be
particularly relevant: page 24 of the transcript. Though the ICP had
considerable discretion to consider such representations in the context of the
discipline hearing, it seems clear that he did not find Mr. Doering’s
representations in this regard to be helpful.
[20]
Based on his finding that there was no evidence
of a prior search of the window sill, and the fact that the weapon was hidden,
the applicant argues that the ICP should have acknowledged the reasonable
possibility that the weapon had been left in the window sill by a prior
occupant. The ICP provided no discussion or explanation as to why this scenario
was not reasonable. The respondent offers no suggestion as to why the ICP was
silent on this subject. In my view, the ICP had no basis for dismissing this
possibility.
[21]
I turn now to the submission by the applicant
that the ICP wrongly based his finding of guilt on the applicant’s
responsibility for allowing other inmates to go into his cell while he was not
present. The respondent argues that, though the ICP made several comments in
his reasons about the potential risks of allowing other inmates to enter the
applicant’s cell, he did not go so far as to conclude that these risks were
sufficient to satisfy the knowledge element of the test for possession. It is
true that the ICP did not explicitly characterize the test for possession in
these terms. However, it seems clear that the applicant’s practice of allowing
other inmates to enter his cell contributed to the finding of guilt. Discussion
of this issue was the main point leading up to the ICP’s finding. The use of
the words “[o]n all of the evidence before the court” does not alter that fact.
[22]
Immediately before concluding that the weapon
belonged to the applicant, the ICP said “So if Mr. Sidhu
is going to allow people into his cell then I think he has to accept some
responsibility if something occurs by giving them permission. Otherwise, he
puts himself at risk”. It is difficult to imagine why the ICP would have
made this statement except to indicate that the applicant was “responsible” for
the “risk” that someone else would place a weapon in his cell. The respondent
suggested no alternative to this view. Moreover, the quoted statement also
appears to acknowledge the possibility (the “risk”) that the weapon was, in
fact, placed in his cell by another inmate. Therefore, this is another possible
scenario that suggests that the applicant may not have known of the presence of
the weapon in his cell, which should have led to a not guilty finding.
[23]
At paragraph 16 of its Memorandum of Fact and
Law, the respondent argues that the ICP:
rejected the inference that another inmate left
the shank in the cell because the Applicant changed his evidence about whom and
on what conditions he allows others into his cell and because of the time it
would take to place the shank in the window sill.
[24]
I disagree that the applicant changed his
evidence on the point. On cross-examination, he merely clarified that the
inmates he allowed to enter his cell to take things were limited to close
friends who ask. Moreover, I see no indication that the ICP perceived any
change in the applicant’s evidence either. I note that, at the hearing of this
judicial review, the respondent’s counsel did not press this point.
[25]
With regard to the issue of the time it would
take to place the shank in the window sill, the ICP did indeed refer to this in
reaching his decision. At pages 28-29, he stated: “…I
would think that somebody would be noticed if they are planting a shank in the
window sill. It is a time consuming or it takes time, some time”. But
there was no evidence before the ICP on which he could reach any conclusion
that placing the weapon would take any amount of time. He may have been
convinced of this by the fact that the weapon was hidden. However, the explicit
evidence of the Officer was that it took no amount of time to remove the weapon
from the window sill:
ICP MR. Romain: And how long did it take you to
get it out once you got the pliers? Did it come out immediately?
OFFICER MCKENNA: Yes. Within finding it and
going to grab pliers I had it out within two minutes, from finding it, to going
to get pliers, to pulling it out.
ICP MR. Romain: Okay.
OFFICER MCKENNA: And that was going to the post
and back.
[26]
There is no basis for concluding that hiding the
weapon would take longer than retrieving it. Therefore, there was no basis for
any conclusion that “somebody would be noticed if they are planting a shank in
the window sill”. Moreover, even if somebody were noticed doing such a thing,
it is entirely possible that the incident would not have been reported either
to the applicant or to prison officials.
[27]
Another problem with the ICP’s comments
concerning the applicant’s responsibility for something that is placed in his
cell by another inmate is that it assumes that the weapon was placed in his
cell by someone with permission to be there. Another reasonable possibility is
that it was placed in his cell, while it was unlocked and the applicant was
absent, by someone who did not have permission to be there.
[28]
The parties referred to the cases of Séguin
v. Canada (A.G.), 2009 FC 551 [Séguin], Ewonde v. Canada (A.G.),
2005 FC 1688 [Ewonde], and Williams v. Canada (A.G.), 2006 FC 153
[Williams], in support of their respective arguments. In each of these
cases, the finding of possession of contraband was upheld. In my view, each of
these cases can be distinguished from the present case on their facts.
[29]
In Séguin, contraband drugs were found
inside a Tylenol container and a bottle of vitamins that were found in the
applicant’s single cell. The applicant admitted owning the vitamin bottle, but
not the contraband drugs found in it. The applicant denied knowledge of the
Tylenol bottle. The ICP did not believe the applicant and the Judge of the Federal
Court did not interfere with this decision.
[30]
In Ewonde, a contraband drug was found in
the applicant’s segregation cell in an envelope which also contained the
applicant’s personal photos. The ICP concluded that the drug belonged to the
applicant and the Court maintained that decision.
[31]
In Williams, the applicant was
double-bunked in a cell with another inmate when a contraband cell phone was
found stuffed in a sock under the pillow of his bunk. The ICP did not believe
that the cell phone could have belonged to the other inmate, and found the
applicant’s claim that he was unaware of the presence of the cell phone in his
bed to be “outrageous”. The Federal Court dismissed the judicial review.
[32]
In each of these cases, the contraband in
question was tied to the applicant by something personal: a pill bottle,
personal photos and a pillow. No similar personal connection of the weapon with
the applicant exists in the present case.
VI.
Conclusion
[33]
Based on the foregoing, I have concluded that
this application for judicial review should be granted, and that the finding of
guilty should be set aside.
[34]
Also, a finding of not guilty should be entered
because the ICP accepted facts sufficient to raise a reasonable doubt as to
whether the applicant had legal possession of the weapon in question. Here, I
refer specifically to (i) the finding that there was no evidence that the
window sill where the weapon was hidden had been searched since the applicant
had moved into the cell; and (ii) the finding that there was a risk that someone
could place the weapon in the cell without the applicant’s knowledge. Therefore,
based on the evidence accepted by the ICP, it is reasonably possible that the
weapon had been left in the cell without the applicant’s knowledge either by a
prior occupant, or by someone who entered the cell, either with or without
permission, when it was unlocked and the applicant was not present.
[35]
At the hearing, the applicant proposed an amount
of $2000 for costs. The respondent made no submission on costs. I find the applicant’s
request reasonable.
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