[1] This is an appeal from a decision denying the appellant's application for judicial review of a penitentiary disciplinary hearing: Ross v. Canada, 2001 FCT 1396.

BACKGROUND

[2] The appellant was charged with wilfully disobeying a written rule pursuant to subsection 40(r) of the Corrections and Conditional Release Act, R.S. 1992, c. 20 (the Act). The written rule at issue was a hobby permit allowing the appellant to produce a certain number of hobby crafts. The appellant had breached this rule by sending an unauthorized number of hobby crafts via privileged correspondence to his lawyer: Appeal Book for Docket A-16-02, Inmate Offence Report and Notifications of Charge at p. 80.

[3] The appellant was provided with the Inmate Offence Report and Notifications of Charge prior to his hearing as required by section 42 of the Act.

[4] The presiding officer, Mr. Rancourt, held a disciplinary proceeding. The appellant spoke at the hearing and questioned the two witnesses from the penitentiary, Acting Unit Manager D. Stifle, and Senior Admissions and Discharge Officer Rick Bentley.

[5] The appellant requested that the Warden and the Unit Manager, Mr. Ling, be present as witnesses. Mr. Rancourt refused his request on the basis that their evidence was not relevant.

[6] During the course of the hearing, the appellant admitted that he had exceeded the number of hobby crafts allowed by the permits issued to him: Appeal Book for Docket A-16-02, Record of the Institutional Disciplinary Court of Grande Cache Institution at pp. 6 and 12. The appellant also admitted to having packed his parcel to his lawyer in his cell instead of having it done in the Hobby Office as required: Record of the Institutional Disciplinary Court, supra at pp.15 and 18.

[7] Accordingly, Mr. Rancourt found the appellant guilty. Mr. Rancourt imposed a $25 fine before he allowed the appellant to speak to the sentence. The appellant raised this failure with Mr. Rancourt who then offered to hear the appellant on this issue. The appellant refused, stating that he would raise the matter in Federal Court.

[8] The appellant filed a grievance complaint on the basis that he had been denied a fair hearing. He appealed the grievance decision to the first, second and third levels of the grievance appeal process.

[9] The appellant filed an application for judicial review to the Federal Court, Trial Division on the same basis.

DISPOSITION OF THE APPLICATIONS JUDGE

[10] The Applications Judge dismissed the appellant's application for judicial review on three bases. First, the duty of procedural fairness was met as the appellant was given the opportunity to know the case against him and was given a full opportunity to respond; second, the appellant would have been found guilty despite any breach of procedural fairness; and, third, based on the Supreme Court of Canada's decision in [1978] 1 S.C.R. 918">Martineau v. Matsqui Institution, [1978] 1 S.C.R. 918, the matter was not serious enough to warrant the interference of the court.

ISSUES

[11] The appeal before us proceeded on two grounds. First, whether the Applications Judge erred in concluding that there was breach of procedural fairness; and, second, whether the Applications Judge exhibited bias towards the appellant.

ANALYSIS

Fairness

[12] The procedural errors relied on by the appellant did not deprive him of a right to a fair hearing. The record shows that the appellant was given ample opportunity to make representations and question the two witnesses.

Bias

[13] The appellant did not demonstrate, nor does the record show, that the Applications Judge's conduct could give rise to a reasonable apprehension of bias.

CONCLUSION

[14] This appeal should be dismissed with costs.

"J. Richard"

Chief Justice

"I agree

J.D. Denis Pelletier"

ISAAC J.A. (concurring)

[15] This is an appeal from an order made by a Motions Judge in the Trial Division on 17 December 2001 reported as Ross v. Canada, 2001 FCT 1396. In the order, the learned Motions Judge dismissed the appellant's application for judicial review of the decision of Correctional Supervisor, A. Rancourt (the "presiding officer"). The presiding officer found the appellant guilty of the disciplinary offence of disobeying a written rule of the Grande Cache Institution in the province of Alberta, and fined him $25 for making papier mâché model airplanes and jewellery without the appropriate permits.

FACTUAL BACKGROUND

[16] The appellant was at the relevant time an inmate at the Grande Cache Institution (the "Institution"). As a hobby he made papier mâché airplanes, hangars and jewellery. He was charged after attempting to mail ten airplanes, two airplane hangars, a beaded necklace, and a pair of beaded earrings to his lawyer in a box labelled privileged correspondence. When questioned, the appellant indicated that he was sending these items to his lawyer, who would in turn sell them. He had permits authorizing him to possess only six airplanes, and none for the hangars or jewellery. The rules of the Institution prohibited the mailing of hobby crafts without permission, and from being sent as privileged correspondence.

[17] The charge was laid pursuant to subsection 40(r) of the Corrections and Conditional Release Act, R.S. 1992, c. 20 because it was alleged that the appellant wilfully disobeyed a written rule governing the conduct of inmates. In this case, the "written rule" referred to the written permits issued to the appellant authorizing him to make a specified number of hobby crafts (6).

[18] The presiding officer held a disciplinary hearing in the presence of the appellant. During the hearing the appellant examined Acting Unit Manager, D. Stifle and Senior Admissions and Discharge Officer, Rick Bentley as his own witnesses. Both of these men were prison officers who witnessed some of the events which led to the appellant being charged.

[19] The appellant asked the presiding officer to call the Warden and Unit Manager Mr. Ling as witnesses; however, the presiding officer refused this request on the ground that the two witnesses called were the only officers named on the charge.

[20] During the course of the hearing the appellant admitted making 26 airplanes and that he destroyed three of them. As I have already stated, the appellant was found guilty and fined $25. The presiding officer announced the imposition of the fine without first calling upon the appellant to speak to the issue of penalty. The appellant immediately drew this failure to the attention of the presiding officer who offered to hear the appellant on the issue. The appellant declined, saying that the matter would be dealt with in Federal Court.

[21] The appellant filed a grievance complaint on the basis that he had been denied a fair hearing and subsequently appealed the grievance decision to the first, second and third levels of the grievance appeal process in place at the Institution. The appellant's grievance was upheld in part at each level of appeal because it was found that he should have been given an opportunity to make submissions about his penalty before it was imposed. The decision at the third level, however, determined that this procedural error was immaterial since the appellant was given ample opportunity to make representations and to question the two witnesses.

Reasons of the Motions Judge

[22] The learned Motions Judge gave three reasons for dismissing the appellant's application for judicial review: first, that he was satisfied that in the circumstances of the case, the appellant had a fair hearing and that he was not prejudiced by the imposition of sentence without first hearing from the appellant on this issue; second, that the appellant would have been found guilty whether breaches of the rule of natural justice has occurred or not; third, based on dicta of the Supreme Court of Canada in [1978] 1 S.C.R. 918">Martineau v. Matsqui Institution, [1978] 1 S.C.R. 918, that the Trial Division should not interfere in this case because the offence was not serious and the appellant has suffered no injustice because of breaches of the rule of natural justice.

RELEVANT STATUTORY AND PROVISIONS

[23] The following sections of the Corrections and Conditional Release Act relate to this case:

40. An inmate commits a disciplinary offence who

...

(r) wilfully disobeys a written rule governing the conduct of inmates;

40. Est coupable d'une infraction disciplinaire le détenu qui_:

...

r) contrevient délibérément à une règle écrite régissant la conduite des détenus;

42. An inmate charged with a disciplinary offence shall be given a written notice of the charge in accordance with the regulations, and the notice must state whether the charge is minor or serious.

42. Le détenu accusé se voit remettre, conformément aux règlements, un avis d'accusation qui mentionne s'il s'agit d'une infraction disciplinaire mineure ou grave.

43. (1) A charge of a disciplinary offence shall be dealt with in accordance with the prescribed procedure, including a hearing conducted in the prescribed manner.

(2) A hearing mentioned in subsection (1) shall be conducted with the inmate present unless

(a) the inmate is voluntarily absent;

(b) the person conducting the hearing believes on reasonable grounds that the inmate's presence would jeopardize the safety of any person present at the hearing; or

(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.

43. (1) L'accusation d'infraction disciplinaire est instruite conformément à la procédure réglementaire et doit notamment faire l'objet d'une audition conforme aux règlements.

(2) L'audition a lieu en présence du détenu sauf dans les cas suivants_:

a) celui-ci décide de ne pas y assister;

b) la personne chargée de l'audition croit, pour des motifs raisonnables, que sa présence mettrait en danger la sécurité de quiconque y assiste;

c) celui-ci en perturbe gravement le déroulement.

(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.

ISSUES

[24] This appeal raises two issues. First, whether the Motions Judge erred in dismissing the application for judicial review, and second, whether the appellant has demonstrated to the requisite degree of proof that the Motions Judge was biased against him.

Arguments of the Parties

[25] The appellant attacked the order on several grounds: that the Motions Judge was wrong to find that the appellant held permits authorizing him to make only three items instead of six items per project; that he was wrong to conclude that it was against the rules of the Institution for the appellant to send the aircraft to his lawyer; that he was wrong to conclude that the appellant had received a fair hearing; that he was biased against the appellant; and, finally, that he erred in concluding that the offence was trivial.

[26] For its part the respondent contended as follows: first, that the permits were valid and that the appellant knew that he was only allowed to produce three airplanes per hobby permit as he had been informed of the rule on many occasions; second, that each permit stated on its face that it pertained to three airplanes only; third, that although the rules in place at the Institution authorized the appellant to send hobby crafts to "anyone", he was required to send them out through the hobby area, and not as privileged correspondence to his lawyer; and, finally, that the appellant had received a fair hearing.

ANALYSIS

[27] For the reasons that follow I am of the opinion that the Motions Judge did not err in dismissing the appellant's application for judicial review.

[28] In order to determine the standard of review to be applied in this appeal it is necessary to inquire into the nature of the proceeding out of which the appellant's application for judicial review arose. In my respectful opinion, the application arose in the context of an administrative hearing.

[29] The characteristics of this class of hearing were described by a majority of the Supreme Court of Canada in [1978] 1 S.C.R. 118">Martineau v. Matsqui Institution, [1978] 1 S.C.R. 118 as administrative in nature and thus neither judicial nor quasi-judicial in character.

[30] The principles governing prison disciplinary hearings are summarized by Denault J. in Hendrickson v. Kent Institution Disciplinary Court (Independent Chairperson) (1990), 32 F.T.R. 296 (T.D.) as follows, at pages 298 to 299:

The principles governing the penitentiary discipline are to be found in [1978] 1 S.C.R. 918">Martineau (No. 1) (supra) and [1978] 1 S.C.R. 918">Martineau v. [1978] 1 S.C.R. 918">Matsqui Institution Disciplinary Board (1979), 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 adversar[ial] 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" ([1978] 1 S.C.R. 918">Martineau No. 2, p. 360).

[31] The reasons of the Motions Judge make it clear that he was alive to those principles. For example, paragraph 20 of his reasons read:

In these circumstances, the duty of procedural fairness was met. The applicant had proper disclosure of the offence and a hearing. The applicant had the opportunity to question the two witnesses, and to make his position known to the tribunal before a final decision was rendered. In these circumstances, the applicant has a fair hearing. Given that the disciplinary offence was minor, that the fine was $25, that the applicant had the opportunity to speak to sentence as soon as the hearing officer realized that the applicant wished to speak to the sentence before the sentence was finalized, and given that the applicant declined this opportunity, I am satisfied that the applicant had a fair hearing and was not prejudiced.

[32] In this appeal the order under attack was discretionary. In these circumstances the applicable standard of review has been laid down by the Supreme Court of Canada in Reza v. Canada, [1994] 2 S.C.R. 394. In that case the Court held that appellate courts should interfere with the exercise of judicial discretion only where the judge at first instance failed to give sufficient weight to all the relevant considerations. It is clear to me that in this appeal the learned Motions Judge did give sufficient weight to all the relevant considerations. On this issue, then, this appeal should fail.

[33] I turn now to the issue of bias which the appellant raised in his notice of appeal but did not pursue in his memorandum of fact and law. Although he did not deal with the issue of bias in his memorandum of fact and law, he did address it faintly in oral argument. The appellant contended that the Motions Judge demonstrated bias against him by failing to order that the proceedings before him be recorded; by treating the appellant disparagingly through his tone of his voice, his facial expressions and by stating, "Oh I didn't know you got paid to go to prison"; by favouring the respondent throughout the hearing; and by making negative comments about the appellant in paragraph 14 of his reasons in which he described the numerous grievances filed by the appellant over the last four years.

[34] In R. v. R.D.S., [1997] 3 S.C.R. 484, Cory J., who wrote for himself and Iacobucci J., made the following observation at paragraph 109 of his concurring reasons:

When it is alleged that a decision-maker is not impartial, the test that must be applied is whether the particular conduct gives rise to a reasonable apprehension of bias.

[35] The test for demonstrating a reasonable apprehension of bias is well known and need not be repeated here. Suffice it to say that none of the allegations that the appellant has made could amount to a demonstration of a reasonable apprehension of bias. Accordingly, the appeal must fail on this ground also.

CONCLUSION

[36] This appeal should be dismissed with costs.

"Julius A. Isaac"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-16-02

STYLE OF CAUSE: ARTHUR ROSS

- v -

THE QUEEN

APPEAL FROM AN ORDER OF THE TRIAL DIVISION DATED DECEMBER 17, 2001, TRIAL DIVISION FILE NO. T-241-00

PLACE OF HEARING: SASKATOON, SASKATCHEWAN

DATE OF HEARING: MAY 22, 2003

REASONS FOR JUDGMENT: RICHARD C.J.

CONCURRED IN BY: PELLETIER J.A.

CONCURRING REASONS BY: ISAAC J.A.

APPEARANCES:

Mr. Arthur Ross FOR HIMSELF

Ms. Glennys Bembridge FOR THE QUEEN

SOLICITORS OF RECORD:

Mr. Arthur Ross

Grande Cache, Alberta FOR HIMSELF

Morris Rosenberg

Ottawa, Ontario FOR THE QUEEN

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Ross v. Canada, 2003 FCA 296

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2003 FCA 296