Docket: A-49-16
Citation: 2016 FCA 306
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CORAM:
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NOËL C.J.
TRUDEL J.A.
BOIVIN J.A.
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BETWEEN:
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ATTORNEY GENERAL
OF CANADA
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Appellant
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and
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MATHIEU
L'ESPÉRANCE
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Respondent
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REASONS FOR JUDGMENT OF
THE COURT
(Delivered from the bench at Montréal, Quebec,
on November 30, 2016.)
TRUDEL
J.A.
[1]
The Attorney General of Canada (or the appellant)
is appealing from a judgment of the Federal Court (2016 FC 19) that allowed the
respondent’s application for judicial review of a decision by the independent
chairperson of the disciplinary tribunal of the Drummond Institution.
[2]
While an inmate at the Drummond penitentiary, the
respondent was found guilty of a disciplinary offence, that is, having in his
possession, without prior authorization, the ingredients necessary for the
production of illicit spirits, specifically four gallons of a liquid ready to
be fermented (paragraph 40(j) of the Corrections and Conditional Release Act,
S.C. 1992, c. 20).
[3]
Even before the issuance of the offence report
and the notification of charge, the respondent went to the Institution’s health
services centre and requested voluntary administrative segregation. He told the
authorities at the penitentiary that, following a visit by two fellow inmates,
he had been forced to allow his cell to be used in the production of alcohol as
payment for a debt that he had incurred while at another institution. He stated
that he feared for his physical safety.
[4]
At his disciplinary hearing, the respondent acknowledged
having been in possession of the prohibited liquid mixture, and then raised duress
as his defence, but in vain. The independent chairperson found the respondent
guilty beyond a reasonable doubt of the offence set out in the notification of
charge.
[5]
The respondent applied for judicial review of
the decision, alleging that the independent disciplinary tribunal had erred in
his analysis of his defence. A judge of the Federal Court agreed. We are of the
view that the Federal Court erred in making that finding and that this appeal
must be allowed.
[6]
In her very detailed judgment, the judge did not
consider the applicable standard of review in the case. This is where, in our
opinion, she took the wrong avenue by reviewing the independent chairperson’s
decision more according to the standard of correctness than to the standard of
reasonableness. Decisions of the independent chairperson involving questions of
mixed fact and law must be treated with deference by the reviewing court (Swift
v. Canada (Attorney General), 2014 FC 1143, at paragraphs 31-33, affirmed Swift
v. Canada (Attorney General), 2016 FCA 43, at paragraph 2; Breton v.
Canada (Attorney General), 2016 FC 76, at paragraph 34). Therefore,
findings of the independent chairperson in relation to a common law rule—here,
the defence of duress raised by the respondent—will be upheld if they are
reasonable and have a basis in the evidence accepted by the independent
chairperson.
[7]
In our opinion, the judge could not have
intervened if she had analyzed the decision of the independent tribunal according
to the standard of reasonableness, as she was required to do.
[8]
In R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R.
14 [Ryan], the Supreme Court of Canada set out six elements for the common
law defence of duress. The third component is of particular interest in this
case, that is, that there must be “no safe avenue of
escape” (at paragraph 81).
[9]
According to the respondent, the independent
chairperson failed to assess this element according to the modified objective
standard by asking whether [translation] “a reasonable
person in the same situation as the respondent and with the same personal
characteristics and experience as him would conclude that there was no safe
avenue of escape” (Respondent’s Memorandum of Fact and Law at paragraph
33). The independent chairperson also allegedly erred by not analyzing the last
three criteria. We disagree.
[10]
The independent chairperson reasonably applied
the modified objective standard to the respondent’s conduct. The respondent
knew the solution, but disregarded it at the time when he was forced to break
the Institution’s rules by keeping the prohibited liquid mixture in his cell. The
independent chairperson found that the respondent knew that he could talk about
what had happened and seek protection because that is exactly what he did, after
the seizure.
[11]
As stated in paragraph 65 of Ryan, “[i]f a reasonable person similarly situated would think that
there was a safe avenue of escape, the requirement is not met” [emphasis
in original]. This is what the independent chairperson concluded in this case after
reviewing the respondent’s conduct against the prescribed standard.
[12]
Having reached that conclusion, the independent
chairperson was no longer required to continue his analysis to examine the last
three elements of the defence of duress. He cannot be faulted for that
omission. He was also convinced beyond a reasonable doubt that the respondent had
committed the alleged offence. The intervention of this Court is therefore not
warranted.
[13]
Consequently, this appeal will be allowed; the
Federal Court’s decision will be set aside; and, rendering the decision that
the Federal Court should have rendered, the respondent’s application for judicial
review of the decision by the disciplinary tribunal of the Drummond Institution
will be dismissed with costs in both courts.
“Johanne Trudel”
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