Docket: T-2095-15
Citation:
2016 FC 1158
[ENGLISH
TRANSLATION]
Ottawa, Ontario, October 19, 2016
PRESENT: The Honourable Mr. Justice Annis
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BETWEEN:
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YOUNG-TAILLON,
NICOLAS
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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
I.
Introduction
[1]
This is an application for judicial review under
subsection 18.1(1) of the Federal Courts Act, R.S.C., 1985, c. F-7 of
the decision made by the Independent Chairperson of the Disciplinary Tribunal
at Cowansville Institution (the Chairperson) on November 12, 2015, that found
Nicolas Young-Taillon (the applicant) guilty of the disciplinary offence of "fights with, assaults or threatens to assault another
person" set out in paragraph 40(h) of the Corrections and
Conditional Release Act, S.C. 1992, c. 20 (the Act).
II.
The facts
[2]
The applicant, an inmate at Cowansville
Institution (the Institution) received a disciplinary offence report on April
7, 2015. He was accused under paragraph 40(h) of the Act of fighting with
another inmate on March 22, 2015.
[3]
The events in question took place in an
institution where the inmates are partially released and can move about freely.
The Institution has a common room with a kitchen and a hallway that leads to
the inmates’ bedrooms. The applicant’s bedroom is located at the end of the
hallway, approximately 40 feet from the common room.
[4]
The events occurred during a change in staff
when no staff members were present to witness the incident. The staff only
found out about the incident when a staff member noticed a scar on the
applicant’s face. After that, the surveillance footage was watched to determine
the cause of the scar. That is when the applicant was accused of the
disciplinary offence.
[5]
The only evidence on file is the video recording
and the testimony of Karine Dutil, a member of the correctional staff, who
described what she had noticed when watching the video. The applicant did not
testify or present any evidence.
[6]
Hearings took place on September 2 and 30, 2015,
and the Chairperson made his decision on November 12, 2015.
A.
The video footage
[7]
During the hearing, the Chairperson showed the
video recording of the incident. The sequence of events was as follows:
1. the applicant and the other inmate had a heated discussion in the
common room, during which they were facing one another, a few feet apart;
2. the applicant shoved the other inmate once, which made the inmate
fall to the ground;
3. the applicant shoved the other inmate a second time, throwing the
other inmate slightly off balance;
4. the applicant left the common room and went down the hallway to his
room;
5. during his absence, the other inmate went to get an object from the
kitchen cupboard, which the assessor believed to be a knife, but which was,
regardless, a weapon within the meaning of paragraph 267(a) of the Criminal
Code, R.S.C., 1985, c. C-46;
6. the other inmate left the common room with the weapon in his hand
and followed the applicant;
7. the applicant briefly entered his room, which was at the end of the
hallway, but immediately turned back to the hallway, where he saw the other
inmate moving quickly toward him with the weapon in his hand;
8. seeing the other inmate approaching, the applicant moved toward him
and the two fought and quickly went into the bathroom, where there was no
camera;
9. a few minutes later, the applicant, who appeared to be touching a
cut on his face a few times, left the bathroom and went to the common room and
then to his bedroom;
10. at
that time, someone who can be assumed to be a staff member cleaned what
appeared to be blood in the hallway outside the bathroom and between the
bathroom and the applicant’s room;
11. the
applicant then left his room to get an object from the kitchen cupboard
himself;
12. while
the applicant was in the common room, the other inmate left the bathroom and
returned to his room;
13. the
applicant returned to his room and then went to the bathroom door, removing the
object he had taken from the kitchen from his pocket;
14. a
few moments later, he went to another room with the object in his hand;
15. in
the meantime, someone who appears to be a staff member went into the bathroom
with a mop and bucket;
16. the
applicant finally entered the other inmate’s room, out of view of the cameras,
holding the object in his right hand; and
17. a
few minutes later, he came out of the other inmate’s room and went to the
common room.
B.
The hearing
[8]
During the hearing, the assessor admitted that
the events after the fight, from the moment when the applicant left the
bathroom to go to his room, i.e., the fact that he went to get a weapon, are
not the acts for which he was accused. It is only the events that took place in
the hallway that are at issue. The applicant’s counsel also pointed out that
the shoving that took place before the fight in the hallway was not part of the
offence, because it did not lead to a fight.
[9]
The assessor states [translation] "that fighting is
not the only way to resolve a conflict in the institution." For
example, one could notify staff or use the emergency alarms in the bedrooms.
The assessor also pointed out that it was implausible that the applicant and
the other inmate could have managed to live together for several days trying to
conceal the fight if someone had acted in self-defence. Neither inmate informed
the staff that they had been assaulted or had to defend themselves.
[10]
The applicant’s counsel raised the argument of
self-defence. She carefully set out the elements of the defence for the
Chairperson and analyzed the facts based on those elements. She argued that the
burden of proof had not been discharged and that it was the Correctional Service’s
responsibility to prove beyond a reasonable doubt that self-defence did not
apply. She pointed out to the Chairperson that, with regard to self-defence, it
is the perception of the accused that is important.
[11]
The applicant’s counsel argued that a reasonable
person in the applicant’s situation would have felt threatened and acted as the
applicant had. When the applicant left his room, he saw the other inmate coming
toward him with a weapon. She claims that, in this situation, he had to [translation] "act
in the moment." There was no guard, gatehouse or alarm button.
[12]
She argues that the context was imperfect:
[translation]
This was a context where a person can seek revenge, where, in a penitentiary,
it is necessary to respond immediately, to act in the moment. A person cannot
just run away. It is not just a matter of shutting oneself away in his cell and
then seeing what happens a few days later. That is the type of context we are
dealing with.
[13]
She also states that the applicant’s reaction
was proportionate. Her client was injured during the fight and used the
necessary force to disarm the other inmate.
III.
Impugned decision
[14]
During the hearing on November 12, 2015, the
Chairperson rendered his decision, of which the entire part on the basis of
self-defence is as follows:
[translation]
What is...What is being claimed...What the defence is claiming, is
self-defence, and that the accused acted in a reasonable manner.
I then had the opportunity to watch the
video very carefully. One thing I was able to notice when watching calmly and
glued to the screen, I saw those men, not only did they...I will use the
expression scuffle, but at one point both of them were armed. It is
clear to me that those two inmates fought. That is what your client is accused
of. As a result, I find him guilty of the charge. I also understand that
he was placed in segregation...
[My emphasis]
[15]
The applicant was sentenced to three days of
time served and a fine of thirty-five dollars, suspended for a period of ninety
days.
IV.
Relevant Act
[16]
The Chairperson found the applicant guilty of
the offence set out in paragraph 40(h) of the Corrections and Conditional
Release Act, S.C. 1992, c. 20:
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Disciplinary offences
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Infractions disciplinaires
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40 An inmate commits a disciplinary
offence who
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40 Est
coupable d’une infraction disciplinaire le détenu qui :
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[…]
(h) fights with, assaults or threatens to assault another person;
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[…]
h) se livre ou menace de se livrer à des
voies de fait ou prend part à un combat;
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V.
Issues
[17]
This case raises the following issues in dispute:
1. Was the Chairperson’s analysis of the defence of self-defence
reasonable?
2. Did the Chairperson breach procedural fairness?
VI.
Standard of review
[18]
Where the applicant argues that the Chairperson’s
reasons contain flaws or defects, the reasonableness of the decision must be
reviewed (Newfoundland and Labrador Nurses’ Union v. Newfoundland and
Labrador (Treasury Board), 2011 SCC 62 at paras 21–22). In that regard,
what must be reviewed is the "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."
(Dunsmuir v. New Brunswick, 2008 SCC 9 at para 47). As for the
issues of procedural fairness raised by the applicant, the standard of review
will always be correctness (Mission Institution v. Khela, 2014 SCC 24,
at para 79).
VII.
Analysis
[19]
The applicant is accused of the disciplinary
offence set out in paragraph 40(h) of the Act of having participated in a
fight. That paragraph also prohibits less serious acts such as assaulting or
threatening to assault another person, which would result in a less severe
sentence. Nevertheless, the applicant was accused of the most serious offence
under paragraph 40(h), which is fighting. As a result, the relevant facts
concern only the events that occurred in the hallway when the applicant and the
other inmate fought.
[20]
There is no question that a fight took place.
Since the applicant acknowledged having participated in the fight, the only
issue the Chairperson of the Tribunal had to examine was whether his
participation could be justified as being self-defence, as the applicant
argues.
[21]
Given this defence, the objective of the
analysis of the facts should have been to determine whether the applicant’s
decision was reasonable to participate in a fight when he saw the other inmate
approaching him with a weapon in his hand.
[22]
Given that the other inmate was armed and was
approaching the applicant in the hallway, it seems reasonable to assume that
his fear for his personal safety would increase considerably compared to the
shoving that had occurred in the common room.
[23]
Accepting that the applicant’s personal safety
was jeopardized when he was facing the armed inmate, the real question before
the Chairperson was to determine whether the applicant had other reasonable
options to avoid that imminent danger. We must keep in mind that the applicant
had about two or three seconds to come up with an action plan.
[24]
The Attorney General pointed out that there were
obvious solutions, including alerting the guards or withdrawing to his room and
pressing the alarm button to alert the authorities. The applicant argues that,
given the imminence of the danger, those options were not realistic. In
particular, the guards were changing shifts and there was no alarm in the
hallway.
[25]
If the Chairperson had conducted such an
analysis, as presented by the applicant’s counsel, he would have been able to
appreciate the applicant’s perception of the other inmate’s approach
considering the events that occurred prior to and during the fight. This would
have enabled him to determine whether the correctional authorities had
discharged their burden to establish beyond a reasonable doubt that the applicant
was not in a self-defence situation justifying his involvement in the fight.
[26]
What was irrelevant and what the Chairperson
could not take into account was the events after the fight. There is no
evidence that a fight took place following the events that occurred in the
hallway when the applicant, holding an unidentified weapon he got from the
kitchen, went into the other inmate’s room. The assessor admitted that those
events are not part of the charge in question.
[27]
Therefore, it is obvious that the Chairperson’s
reasons, which were also too brief, were based on irrelevant facts to reject
the applicant’s self-defence argument. The Chairperson’s statement that at one
point both inmates were armed referred to the events that occurred after
the fight in the hallway. Those facts have no connection to the self-defence
argument.
[28]
As a result, the Chairperson’s reasons for
rejecting the applicant’s defence are unreasonable because they disregarded the
relevant evidence and were based instead on irrelevant evidence.
[29]
Having found that the Chairperson’s analysis was
unreasonable, it is unnecessary to address the questions of procedural
fairness.
[30]
The decision is therefore set aside, and the
case is referred back to the Tribunal to be heard by a different Independent Chairperson.
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