Docket: T-1352-15
Citation:
2016 FC 662
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 14, 2016
PRESENT: The Honourable
Mr. Justice Roy
BETWEEN:
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CHSHUKINA, YULIA
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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]
Yulia Shchukina [the applicant] has brought an
application for judicial review of a decision rendered orally on
June 30, 2015 by an independent chairperson of the disciplinary
court, who found the applicant guilty of a disciplinary offence at Joliette
Institution; she pleaded guilty to two other similar disciplinary offences on
July 15, 2015, given the content of the June 30 decision. It
appears that this application for judicial review is made pursuant to section
18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7.
[2]
The matter is confusing, but it is possible to
draw from it the facts needed to settle it.
I.
Facts
[3]
The applicant appeared three times for similar
offences. On April 1, 2015 (docket 121653), April 4, 2015
(docket 121661), and May 23, 2015 (docket 121881), the applicant
apparently did not stand in her cell for the counts at 21:00 and 11:50. Only
those facts pertaining to the April 1 offence are relevant to this
judicial review, because it would seem that after being found guilty on June 30
despite the tendered defence, the applicant’s guilty pleas for the other two
offences were accepted.
[4]
The facts that led to the April 1 charge
resulting in the June 30 guilty verdict are not in dispute. During the
11:50 count, the applicant was in bed instead of on her feet, as required. It
was not until the duty officer knocked on her door that she woke with a start
and quickly stood. An offence report was prepared.
II.
The legal context
[5]
The offence for which the applicant was charged
three times is listed under paragraph 40(r) of the Corrections and
Conditional Release Act, SC 1992, c 20 (the Act):
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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. . .
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(r) wilfully
disobeys a written rule governing the conduct of inmates;
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r) contrevient
délibérément à une règle écrite régissant la conduite des détenus
|
[6]
It is not disputed in this case that the
Joliette Institution Handbook contains a written rule governing the conduct
that the applicant must observe on pain of violating paragraph 40(r) of
the Act. It is section 4—which governs life at the institution—that
applies here. Paragraph 4.10 reads as follows:
[translation]
4.10 INSTITUTIONAL RULES
Ignorance of these rules is not considered a
valid excuse in the event that you break them. This document in its entirety is
also a written order from the Warden.
Paragraph 4.10 also contains the rule
to stand for the 11:50 and 21:00 counts:
[translation]
4. Unless otherwise indicated, all
inmates must be in their rooms for formal counts. In addition, during the 11:50
and 21:00 counts, you must remain standing in your room until the primary
workers have completed the count of the unit.
5. Counts are held at: 06:05,
11:50, 16:45, 21:00, 22:30 and 00:05.
[7]
The Inmate Handbook was created by the
institutional head to expand on Commissioner’s Directive 506-4 (the
Directive), which was adopted under section 98 of the Act. The Directive
deals with inmate counts and specifically provides that the institutional head
must put in place specific procedures to complement the broader rules of the
Directive.
[8]
The aforementioned independent chairperson of
the disciplinary court was appointed under the Corrections and Conditional
Release Regulations, SOR/92-620 [the Regulations]. Section 24 provides
for the appointment of independent chairpersons.
A.
The issues
[9]
The applicant raised a defence of lawful excuse
to the charge brought against her. She claimed that she was in withdrawal from
medication and that the resulting fatigue had made her drowsy. She allegedly
stopped using the medication on March 6, 2015. The offence in
question was allegedly committed on April 1.
[10]
Essentially, the applicant asserts that her
defence of “lawful excuse” was not accepted by
the independent chairperson. As I understand it, the excuse she gave was her
condition at the time of the offence, which supposedly negates the requisite
intent (memorandum of fact and law, paragraph 25).
[11]
Moreover, the applicant claims that the
independent chairperson misapplied the principle of reasonable doubt. She
submits that her testimony regarding withdrawal-induced fatigue was a
sufficient basis for her defence of lawful excuse, such that no corroborative or
expert evidence was required. According to her, the testimony of a nurse to the
effect that she had not complained of fatigue was inconsequential. In her view,
the independent chairperson misapprehended the meaning of reasonable doubt,
since the defence raised must be disproved beyond a reasonable doubt. The
applicant had no persuasive burden.
[12]
The offence is worded as a wilful violation.
Accordingly, the applicant argues that her guilt can be established only if it
is proven that the violation was intentional. Noting that the evidence shows
that she woke with a start and quickly stood, this supposedly shows the lack of
intent to deliberately break the written rule.
[13]
Lastly, the applicant argues that the
independent chairperson’s reasons were inadequate. The applicant submits that
she should have explained why the explanations given and the legitimate defence
invoked did not raise a reasonable doubt.
III.
The decision for which judicial review is
requested
[14]
The decision rendered on June 30, 2015
is not a model of clarity. This is often the case when reasons for the decision
are given orally after mere minutes of deliberation. Moreover, the matter was
not very complex in terms of the facts.
[15]
The independent chairperson noted that the
applicant had quickly stood. She also noted that the withdrawal symptom
experienced would have been nausea, not drowsiness. Indeed, the applicant had
supposedly complained only of nausea and increased anxiety in the days
preceding the alleged offence.
[16]
After examining the “medical
issue,” the chairperson found that it raised no doubts. If anything, it strengthened
the Correctional Service of Canada’s case. The institutional nurse testified
that he had checked and determined that drowsiness was not a symptom of such
withdrawal; as a result, the independent chairperson stated: [translation] “Correctional Service of Canada has convinced me beyond a
reasonable doubt, particularly given the nurse’s testimony, OK”
(transcript of June 30, 2015 hearing, p. 41). Page 42 says:
[translation] “In my mind, the fact that you didn’t stand for the count is
tantamount to deliberately breaking the rule.”
[17]
Ultimately, the applicant’s claim that she had
been drowsy because she went off her medication three weeks earlier was not
accepted by the independent chairperson for the April 1 offence, the one
at issue in her decision. The nurse called to testify confirmed everything,
according to the chairperson. As drowsiness had been ruled out, the chairperson
found that the offence, that is, failure to stand for the duration of the
count, as required by the Inmate Handbook, had been established beyond a
reasonable doubt.
IV.
Standard of review
[18]
As the applicant seeks judicial review of the
independent chairperson’s decision, the rules of administrative law apply. This
is not about appealing a decision but rather about reviewing it using a
standard of reasonableness, except for certain questions of law, including the
four studied in Dunsmuir v New Brunswick, 2008 SCC 9, at
paragraphs 55 to 61, [2008] 1 S.C.R. 190.
[19]
This Court has stated numerous times that
questions of fact and questions of mixed fact and law are reviewable on a
standard of reasonableness. Moreover, this Court has specifically stated in the
context of prison law that “the assessment of an
inmate’s guilt in cases of disciplinary law in a prison setting is subject to a
reasonableness standard” (Boucher-Côté v Canada (Attorney General),
2014 FC 1065, at paragraph 16 (Boucher-Côté), and cases cited therein).
[20]
This type of review is at the heart of the
specialized jurisdiction of independent chairpersons, whose role is to
determine whether a disciplinary offence was committed. In these matters, the
person conducting the hearing will not find the inmate guilty unless “satisfied beyond a reasonable doubt” (subsection
43(3) of the Act).
[21]
Consequently, this Court will have to accord
deference to the impugned decision. Rather than replace the judgment of the
independent chairperson, it seeks to determine whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law. In addition, “reasonableness
is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process” (Dunsmuir, at
paragraph 47). This Court will not substitute its own findings but rather
review the legality of the impugned decision to determine whether it is
reasonable.
V.
Analysis
[22]
As it happens, the arguments raised in this
matter are similar to those made in Boucher-Côté. In that case as well,
it was argued that the legal tests to establish proof beyond a reasonable doubt
had been misapplied. The independent chairperson was criticized for issuing a
brief decision with inadequate reasons that, according to counsel, did not
explain why the inmate’s testimony had not raised a reasonable doubt. With
respect, I fear that the attempt made in this case was no more successful.
[23]
Essentially, the applicant’s case rests on the
proposition that she had a lawful excuse. The excuse given was that she was
drowsy from being in withdrawal from medication. So if she was sleeping during
the count on April 1, it was not intentional. The memorandum of fact and
law states that [translation] “the applicant raised a defence of lawful excuse related to
her condition at the time of the alleged offence to demonstrate a lack of
intent to the independent chairperson.” This proposition is problematic.
[24]
It cannot be disputed that the common law
defences, justifications and excuses are available. The General part of the Criminal
Code, R.S.C., 1985, c. C-46, makes specific provisions for this, and
these apply in respect of proceedings for an offence under any Act of
Parliament (subsection 8(3) of the Criminal Code). The alleged
offence is set out in paragraph 40(r) of the Act. Common law defences can
be invoked.
[25]
However, conceptually, there is no basis for the
proposed defence. While common law defences such as necessity (Morgentaler
v. The Queen, [1976] 1 S.C.R. 616; Perka v The Queen, [1984] 2 S.C.R. 232
[Perka]), entrapment (R. v Mack, [1988] 2 S.C.R. 903), and extreme
self-induced intoxication (R. v Daviault, [1994] 3 S.C.R. 63) are all
disproportionate to some degree, it is far from clear what level of drowsiness
is necessary to constitute an excuse. As the Supreme Court noted in Perka:
“A ‘justification’ challenges the wrongfulness of an
action which technically constitutes a crime. . . . For such actions people are
often praised, as motivated by some great or noble object” (page 246).
That is not the nature of the excuse. Thus, regarding the defence of necessity,
the Court insisted on the lack of a viable or reasonable choice (page 250), the
disproportionality of imposing a criminal sanction when the act was
realistically unavoidable. As for self-induced intoxication, it involves
automatism or an absence of awareness akin to a state of insanity or automatism.
In this case, nothing of the sort has been argued. In truth, the nature of the
defence is unclear. There is a question as to whether it exists at common law.
As formulated, it is difficult to ascertain its parameters.
[26]
Putting aside the conceptual difficulty in
establishing proper parameters, the fundamental problem facing the applicant is
that the factual basis for a defence needs to be established. In this case,
there needs to be a factual basis according to which withdrawal induces
drowsiness, and this needs to be accepted by the decision-maker. However, the
decision-maker did not accept this evidence. Instead, she accepted the nurse’s
evidence that drowsiness is not a withdrawal symptom.
[27]
Therefore, the independent chairperson did not
accept the applicant’s evidence, which she was entitled to do. The applicant
never complained of drowsiness after going off the medication; she complained
only of nausea to the institutional physician and was treated for it. This
indicates not only that drowsiness is a recent reason put forward by the
applicant, but also that the applicant knew to complain of health problems.
Moreover, the evidence submitted by the nurse, who was called to testify by
both the institution and the applicant, can only be seen as contrary to that of
the appellant. Therefore, the applicant’s version that she had experienced
withdrawal-induced drowsiness was recent and contradicted by the medical
evidence before the chairperson. It is difficult to see how her conclusion that
withdrawal-induced drowsiness had no factual basis would be unreasonable. The
evidence in the record certainly supported such a conclusion.
[28]
As there is insufficient evidence to support the
alleged withdrawal-induced drowsiness, it follows that the applicant’s “lawful
excuse” that she was drowsy due to an external factor cannot be accepted, given
the lack of a factual basis.
[29]
The applicant also argued that the independent
chairperson had misapplied the [translation] “reasonable doubt tests.” As I understand the
arguments, based on R. v W.(D.), [1991] 1 S.C.R. 742 [W.(D.)], it is
argued that the rejection of an accused’s evidence cannot be held against the
accused. A lawful excuse need not rest on anything other than the applicant’s
testimony, either. The independent chairperson has been criticized for deciding
that the medical evidence worked against the applicant. This criticism is
unfounded.
[30]
In this case, the independent chairperson did
not reverse the burden of proof, which the Court sought to avoid in W.(D.).
Thus, if an accused testifies in a criminal trial, jurors must be instructed
not to base their decision solely on whether or not they believe the accused’s
evidence. Believing or disbelieving the accused’s evidence does not put an end
to deliberations. Jurors are told that even if they do not believe the accused,
the Crown’s evidence can still raise a reasonable doubt as to the accused’s
guilt, in which case they must acquit. Jurors must not find the accused guilty
if, despite disbelieving the accused’s evidence, they conclude that the whole
of the evidence does not satisfy them beyond a reasonable doubt. The burden of
proof is never reversed in a criminal trial.
[31]
But that has nothing to do with the case at
hand. Here, the independent chairperson did not accept the applicant’s
testimony, reasonably in my view, but there is no reason to believe that she
used this rejection as evidence against the applicant. Rather, she chose the
nurse’s evidence that drowsiness is not a symptom of withdrawal. The
chairperson could also take into account the fact that in the three weeks after
she went off her medication, the applicant complained of nausea to the point of
being seen by a physician, but did not mention drowsiness. Contrary to what the
applicant asserts, the chairperson never required corroboration; she simply
preferred the evidence of another. There is nothing unreasonable about that. As
Mr. Justice Lemieux said in a case cited by the applicant: “The Applicant is not required to produce medical evidence or
documentary evidence, but in many cases it would be in the Applicant’s interest
to do so” (Boissel v Canada (Attorney General), 2011 FC 560, at
paragraph 12).
[32]
The applicant submits that the fact that she
woke with a start shows that she could not have intended not to stand for the
count. If I understand correctly, she contends that this reaction alone
warrants a finding of a lack of intent. Clearly, this contention was not
accepted. The onus was on the applicant to show that this rather unusual
proposition could not reasonably be rejected. She failed to discharge this
burden. The rule is that inmates have to stand for the 11:50 count. Waking with
a start has nothing to do with the requirement to stand. In fact, neither
counsel for this judicial review nor counsel before the independent chairperson
spoke of a connection between the applicant’s sudden waking and the requirement
to stand.
[33]
For this judicial review, the onus was on the
applicant to satisfy this Court that the decision is unreasonable because it
does not fall within a range of possible, acceptable outcomes which are
defensible. It is not the role of this Court to substitute its own opinion,
especially since the independent chairperson heard the evidence. It is an
invitation that this Court must decline.
[34]
Lastly, the applicant claims that the reasons
for the decision were inadequate, referring, as did the applicant in Boucher-Côté,
to the decision in Cyr v Canada (Attorney General), 2011 FC 94.
[35]
The state of the law has changed since then. In Newfoundland
and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708, [Newfoundland and Labrador Nurses’ Union],
the Court expressly rejected the notion that the “adequacy” of reasons is a
stand-alone basis for quashing a decision (paragraph 14). Rather,
reviewing courts are called upon to “look to the record
for the purpose of assessing the reasonableness of the outcome.” In Newfoundland
and Labrador Nurses’ Union, at paragraph 12, the Court quoted, with
approval, this passage from an article by Professor Dyzenhaus:
“Reasonable” means here that the reasons do
in fact or in principle support the conclusion reached. That is, even if the
reasons in fact given do not seem wholly adequate to support the decision, the
court must first seek to supplement them before it seeks to subvert them.
For if it is right that among the reasons for deference are the appointment of
the tribunal and not the court as the front line adjudicator, the tribunal’s
proximity to the dispute, its expertise, etc, then it is also the case that its
decision should be presumed to be correct even if its reasons are in some
respects defective. [Emphasis added.]
(David Dyzenhaus, “The Politics of
Deference: Judicial Review and Democracy,” in Michael Taggart, ed., The
Province of Administrative Law (1997), 279, at p. 304)
Still in Newfoundland and Labrador
Nurses’ Union, at paragraph 18, the Court quoted a paragraph from the
respondents’ Factum, which I will quote here, as I find that it emphasizes that
reasons are to be looked at in the context of the evidence and the parties’
submissions:
When reviewing a decision of an
administrative body on the reasonableness standard, the guiding principle is
deference. Reasons are not to be reviewed in a vacuum – the result is to be
looked at in the context of the evidence, the parties’ submissions and the
process. Reasons do not have to be perfect. They do not have to be
comprehensive. [para. 44]
[36]
The decision under review is far from perfect,
but perfection is not the required standard. In this case, the applicant
apparently hoped for more extensive reasons as to why no reasonable doubt had
been raised, especially since she had provided a “lawful excuse.” She claims
that she is unable to determine why her testimony was not accepted.
[37]
This Court has read the record and the
transcripts of the hearings before the independent chairperson, and has even
listened to the recording of the arguments and decision. After reviewing the
evidence and arguments and taking into account the process in these matters, I
find that the reasons for the decision are intelligible. Focus was placed on
the alleged withdrawal-induced drowsiness, which was used as a defence to the
charge. Once this excuse was rejected, because the evidence did not support it,
the independent chairperson was satisfied from the evidence that the offence
charged was committed. Deference is owed. The reviewing court seeks to
supplement before subverting.
[38]
It is very clear that the independent
chairperson was mindful of the two issues raised by the applicant: the
existence of a lawful excuse and the lack of intent. Since the “medical evidence” did not support the contention that
the drowsiness was withdrawal-induced, and since that was the only evidence
aside from the applicant’s contention, the said defence could reasonably be
ruled out. As for the requisite intent, it was argued that the fact that the
applicant had quickly stood was proof that it was not her intention not to
follow the rule as required by paragraph 40(r) of the Act. But what matters
here is an intention to violate the substance of the rule. Inmates are required
to stand for the duration of the count. The fact that the applicant stood, even
quickly, does not satisfy that requirement.
[39]
On the face of it, the applicant’s behaviour violated
the requirement to remain standing. As her defence of lawful excuse was
rejected, and in the absence of another explanation, the independent
chairperson was satisfied beyond a reasonable doubt that the disciplinary
offence had been committed, with the intent required by law. The only defence
raised in this regard was that the applicant had stood, which, logically, does
not show a lack of intent to remain standing for the duration of the count. As
I understood the arguments of counsel for the applicant before the independent
chairperson, the requisite intent was lacking because the applicant did not
want to violate the purpose of the rule and hence quickly stood. But that is
not the alleged offence. The purpose of a rule is irrelevant; the applicant ought
to have stood sooner and did not. It was open to the independent chairperson to
conclude that, had the applicant’s quickly rising to her feet been the only
explanation, this did not raise a reasonable doubt as to her intention not to
remain standing for the requisite amount of time.
[40]
All that remained was to see whether the
officer’s evidence established that the applicant was not standing when the
count commenced. In the record, there was no indication of the applicant’s
condition aside from the fact that she was asleep during the count and not
standing, as required. The actus reus was established.
[41]
Obviously, this Court cannot pass judgment on
the wisdom of the rule. However, it may be noted that three warnings had
previously been given to the applicant, who never indicated in response to
these warnings that she was suffering from anything other than nausea (I am not
in any way minimizing the severity of the nausea; in fact, the applicant
received a medical prescription in this regard after the date of the offence).
It was never said that the nausea had caused her to violate the rule.
[42]
Therefore, the independent chairperson responded
to the arguments she had heard minutes before in making her decision. The
conclusion that she reached, when examined in light of the evidence, the
parties’ arguments and the process, is reasonable.
[43]
As has been said many times before,
administrative proceedings must not be transformed into civil or criminal
proceedings before ordinary courts. That being said, decisions that are brief,
terse and somewhat ambiguous should be avoided (Ayotte v. Canada (Attorney
General), 2003 FCA 429, 320 NR 339). Such decisions may not satisfy the
test in Newfoundland and Labrador Nurses’ Union. In this case, the
decision is borderline reasonable, in light of the evidence and arguments
underlying the decision, and the fact that there were not many submissions.
[44]
The applicant does not seek costs, but the
respondent does. The applicant suggested that costs fixed at $500 would already
be heavy.