Docket: T-2133-16
Citation:
2017 FC 971
[ENGLISH TRANSLATION]
Ottawa, Ontario, October 31, 2017
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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CAMPBELL,
ORVILLE
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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]
The prison disciplinary regime is governed by
the Correctional and Conditional Release Act, SC, 1992, c. 20 [Act] and
the Corrections and Conditional Release Regulations, SOR 92/620 [Regulations].
Specifically, “[a]n inmate commits a disciplinary offence
who […] (h) […] threatens to assault […]” (paragraph 40(h) of the Act). This
is an application for judicial review of a decision rendered by an independent
chairperson from Donnacona Institution’s disciplinary court declaring the
applicant guilty of threatening a Correctional Service Canada [Service] officer
and imposing a fine of twenty-five dollars and a suspended sentence of six days
in segregation in the event of recidivism [impugned decision].
[2]
The applicant’s alleged offence was reportedly
committed on August 21, 2016, at Donnacona Institution. At approximately 11:27
a.m., the applicant was talking with fellow inmates in the yard and reportedly
threatened an officer from the Service, Mr. Jean-Christophe Rhéaume-Drouin [officer],
who was passing by [the incident]. In his observation report dated August 22,
2016, the officer detailed the incident from the day before:
[translation]
When I was walking through Cell Block I
towards the Industry sector, at approximately 11:27 a.m., inmate Campbell FPS290325F
was in yard 240 and shouted “Hey!” When I looked at him, he imitated a pistol
with his hands, made a movement as though he was loading the weapon at pointed
at me shouting “boom, boom, boom, boom” as though he was shooting me.
[3]
On August 24, 2016, the applicant was charged
with the following offence: [translation]
“The aforementioned [Campbell] is reported for making
threats against me by pretending to shoot me,” in violation of paragraph
40(h) of the Act. In the case of a serious offence, as is the case here, the
matter will be dealt with by an independent chairperson (subsection 27(2) of
the Regulations). This disciplinary hearing is conducted as an inquisitorial
inquiry procedure where witnesses are heard, and although the independent
chairperson does not have to consider all possible defences, he or she must examine
both sides of the question after hearing the evidence on record and considered
the submissions (see Ayotte v Canada (Attorney General), 2003 FCA 429 at
paras 9 and 10 [Ayotte]).
[4]
After the applicant pleaded not guilty, two
disciplinary hearings were held on October 19 and November 8, 2016, before Mr. Réjean
Doyon, a retired lawyer acting as an independent chairperson [decision-maker]. On
this occasion, the Service was represented by Mr. Patrick Lachance [the
assessor], and counsel for the accused was Ms. Marie-Claude Lacroix [counsel
for the accused]. The transcriptions of these hearings are in the applicant’s
application record. The decision-maker heard testimony from the officer, the
applicant and another inmate. For the present purposes, here is a brief summary
of these three witnesses’ testimony.
[5]
According to officer Rhéaume-Drouin’s testimony,
on August 21, 2016, he was walking by the yard on his way to the Industry
sector. He was alone and had finished his shift. The applicant supposedly
shouted “Hey!” Believing that the inmate was talking to
fellow inmates, he reportedly ignored him. Then the applicant allegedly yelled “hey”
a second time. He turned around. The applicant was about fifty feet away
from him. At that time, the applicant allegedly pretended to load a pistol and
point it at him, shouting “bang, bang, bang, bang!”
three or four times, then looked at him and laughed. It should be noted that
some details of the officer’s testimony differ from his observation report (two
“heys! and not one “hey”; “bang, bang, bang!” and not “boom, boom, boom, boom!”).
The fact that the officer raised his hand as a sign of enquiry—because he did
not know why the applicant was doing that—and that the applicant then started
laughing are new facts that were not mentioned in the observation report. The
officer also stated that he did not approach the applicant to speak with him
after the act in question was done. The officer explained that the applicant was
leaving at this time to go back inside the institution. He was unable to
identify the other inmates with the applicant (three or four apparently) because
he supposedly did not hear them. He stated that no such incident involving the
applicant had occurred in the past, that they had never spoken—either before or
after the incident—and that the applicant is a quiet inmate.
[6]
In his testimony, the applicant provided a
version that contradicted the fundamental points of officer Rhéaume-Drouin’s
testimony. His own recollection of the incident is completely different. He
claimed that the never threatened the officer by pretending to fire a pistol. He
was walking in the yard and was with one or two inmates. They were talking
about a mutual friend, Randall Palacio, who was killed in Toronto in 2011. The
applicant did not recall pretending to point a gun at the officer, but during
his discussion with the fellow inmate, he did say “pow”
and may have raised his hand to imitate firing a pistol. The applicant also
denied calling to the officer. He said that he did not even remember seeing the
officer walk by. Furthermore, he had never had any problems with this officer.
He had been at Donnacona Institution for roughly ten days and only learned the
officer’s name during his first appearance before the disciplinary court.
[7]
Mr. Edward Steven was in the yard during the
incident on August 21, 2016. He testified that he was talking to the applicant
at the time. His testimony had minor factual differences regarding the details
of the story about the mutual friend who was gunned down in Toronto; however,
he corroborated the applicant’s version of the facts. He did ask the applicant
what happened to one of their mutual friends, a man named Randall, who was shot
in Toronto in 2012. He did not see the applicant imitate a pistol and pretend
to shoot the officer, or at least he did not recall seeing it. He remembered,
however, seeing an officer walk past them and apparently look at them oddly. He
explained that young Black men (like the applicant) often have very animated
and noisy conversations and, therefore, would not be surprised if the applicant
made gestures and noises during their discussion and imitated gunshots.
[8]
On November 8, 2016, after hearing the brief
submissions of the assessor (transcriptions from November 8, 2016, at pp. 28
and 29) and counsel for the applicant (ibid at pp. 29 to 31), the
conviction was delivered on the spot by the independent chairperson. The oral
reasons for finding the applicant guilty of the alleged crime very brief. In
short, the decision-maker believed the officer—whose testimony was clear (ibid
at pp. 32 to 33)—and did not believe the applicant, who lacked credibility,
such that he could not give him the benefit of a reasonable doubt (ibid at
p. 33). I shall reproduce the decision-maker’s reasoning on this point:
[translation]
[…]
I’m telling you, Sir, you have…I do not
believe you, you have no credibility on this question. I do not believe you.
Because…you do not just complain about something. You had no reason to do that,
you had no reason to do that, you had nothing against the agent, you had
nothing against…
But I can…it’s not an argument that will (inaudible),
and I’ll tell you why: the officer had nothing against you either. Why would he
make that up? What would he…with (inaudible) and that…testify, be a witness in
this case, make that up.
Your counsel ably argues, because you told
him so, that you had…nothing against officer Rhéaume, you had never
spoken…never spoken with him, and you had nothing against him, but he had
nothing against you either. So why would he make that up? Your explanations
do not satisfy me because the officer would never have invented all of that.
And I do not believe you.
I think, as Mr. Lachance stated, that it is
a bit late, but, now you actually realize, and I know that you…this kind of
situation will not happen to you again because you realized too late that you
made a gesture and that and that you made a threatening sound, a threat, in
fact. This kind of behaviour is not allowed here, it is against the law and
it cannot be tolerated. I cannot give you the benefit of the doubt because I
do not believe your testimony.
It seems unbelievable to me. I cannot
believe it because I would have to (inaudible) that the officer went by, looked
you straight in the eyes, while he never spoke to you and supposedly made up
the rest.
It does not make any sense and now it’s
making you lie to get out of this mess, and I actually think that you are
not telling the truth and that you should therefore be punished. I think that
you have a lesson to learn from all this. You are in prison, the rules are very
strict and they must be followed. You cannot act as though you were in the
outside world, where you can act this way. In fact, these actions, if they were
made seriously, are not even allowed.
I therefore find you guilty […]
[Emphasis added]
[9]
The decision-maker therefore found the applicant
guilty of the alleged disciplinary offence. After hearing the respective
submissions from the assessor and counsel for the applicant regarding the
sentence (transcriptions from November 8, 2016, at pp. 34 to 36), the
decision-maker imposed a fine of $25 and a suspended sentence of six days in
segregation in the event of recidivism within 90 days (ibid at pp. 36 to 37).
[10]
The parties agree that the impugned decision is
reviewable on the reasonableness standard. I also agree (see Dutiaume v
Canada (Attorney General), 2008 FC 990 at paras 27–28).
[11]
According to the applicant, the impugned
decision is unreasonable. On one hand, the decision-maker erred in law by
equating the applicant’s lack of credibility with proof beyond a reasonable
doubt of his guilt. On the other hand, faced with contradictory evidence, the
decision-maker could not, without analyzing all the evidence, simply state that
he was unable to believe the applicant because that would mean that the officer
had lied. In the matter at hand, the decision-maker did not perform a serious
analysis of the evidence in the record. His superficial analysis of the applicant’s
and officer’s testimony is biased and does not consider the rest of the
evidence. Furthermore, the decision-maker did not make any reference to the
testimony of fellow inmate Steven—even though it was to the same effect as that
of the applicant. Moreover, the officer and the applicant did not know one
another before the incident; there was neither verbal exchange nor physical
contact. In addition, the officer may have mistaken the meaning of the
applicant’s gesture, given the contextual elements of the incident. It was also
essential to consider the lack of guilty intent. In light of the presumption of
innocence, there remains a reasonable doubt.
[12]
On the other hand, the respondent submits that
the impugned decision is reasonable. The fact that the oral reasons are not exhaustive
should not affect the validity of the conviction (see Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC
62 at para 16 [Newfoundland Nurses]). The officer’s version is
clear and unequivocal, while those of the applicant and his fellow inmate are
vague and ambiguous. Moreover, the two versions of the applicant and the
officer are mutually exclusive. The decision-maker is presumed to know the
applicable law with respect to proof beyond a reasonable doubt, and it must
also be assumed that he considered all the evidence—including fellow inmate
Steven’s testimony. In his reasons, the decision-maker was not required to deal
specifically with the intentional element (mens rea), because this could
have been implicitly inferred once the material element was proved (actus
reus) (see R v Roedling, 2001 MBQB 89 at paras 18–20). The
respondent submitted that, in this context, there could not be any reasonable
doubt in the mind of the decision-maker if there was no basis to set aside the
officer’s testimony and that he found the applicant’s testimony not to be
credible.
[13]
Intervention is warranted in the case at hand
because the impugned decision is unreasonable.
[14]
At the outset, I cannot accept the respondent’s
arguments regarding the adequacy of reasons. On one hand, it is true that the
analysis of the reasonableness of a decision must focus on the finding, and
consider whether that finding is reasonable in light of the evidence on record
and the applicable law, and that brief and transparent reasons may be
appropriate in some situations (see Newfoundland Nurses at para 16). Nevertheless,
as the Supreme Court also noted in Alberta (Information and Privacy
Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at paragraph 54,
“[the] direction that courts are to give respectful
attention to the reasons ‘which could be offered in support of a decision’ is
not a ‘carte blanche to reformulate a tribunal’s decision in a way that casts
aside an unreasonable chain of analysis in favour of the court’s own rationale
for the result’ [citation omitted].”
[15]
In the case at hand, the reasons do not allow me
to find that the decision-maker understood and applied the principles of R v
W(D), [1991] 1 S.C.R. 742, 122 NR 277 [W(D) with references to SCR] and
that he otherwise considered all the evidence and context of the case when
finding the applicant guilty of the offence.
[16]
First, it should be recalled that under
subsection 43(3) of the Act, “[the independent
chairperson] 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.” In this regard,
when it comes to establishing an inmate’s guilt beyond a reasonable doubt, the
independent chairperson must follow the principles set out in W(D) (see
Ayotte at paras 12 to 16). This is a three-step approach (see W(D) at p.
758):
First, if you believe the evidence of the
accused, obviously you must acquit.
Second, if you do not believe the testimony
of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by
the evidence of the accused, you must ask yourself whether, on the basis of the
evidence which you do accept, you are convinced beyond a reasonable doubt by
that evidence of the guilt of the accused.
[17]
Although the decision-maker is not required to “religiously follow” the instructions in W(D), this
framework is nonetheless intended to ensure that the decision-maker focuses on
the principle of reasonable doubt, and not on a simple analysis of the
credibility of the accused and/or the Crown witnesses (see R v CLY, 2008
SCC 2 at paras 7 and 8 [CLY]). Consequently, the decision-maker cannot
merely equate guilt with an inmate’s lack of credibility (see Ayotte at para
22). As the Supreme Court notes in CLY at para 8:
[…] the verdict should not be based on a choice between the
accused’s and Crown’s evidence, but on whether, based on the whole of the evidence,
they are left with a reasonable doubt as to the accused’s guilt.
[18]
Accepting or rejecting the version provided by
the accused does not end the deliberations because the burden of proof is never
shifted in criminal cases (see Chshukina v Canada (Attorney General),
2016 FC 662 at para 30). In addition, the decision-maker’s failure to
understand or apply the principles arising from the obligation to be satisfied
of the inmate’s guilt beyond all reasonable doubt irreparably violates the
fairness of the hearing (see Ayotte at para 16). This is a material
error in principle vitiating the decision as a whole (see W(D) and Zanth
v Canada (Attorney General), 2004 FC 1113 at para 16). That was the
decision-maker’s error in the case at hand.
[19]
Although it is true that the prison disciplinary
process requires flexibility and effectiveness, this flexibility and
effectiveness cannot be to the detriment of procedural fairness and the
mandatory provisions of the Act—specifically the requirements of subsection 43(3)
of the Act and in compliance with the principles established in W(D) (see
Ayotte at paras 11 and 22). In his brief oral reasons, the
decision-maker essentially said that he did not believe the applicant’s version
because he found him not to be credible. According to him, the applicant could
not be telling the truth because that would mean that the officer had
lied—which to him seems unthinkable or unlikely. For these reasons, he said
that he could not give the applicant the “benefit of a
reasonable doubt.” However, the applicant’s alleged offence includes
both a material element (threat of assault) and an intentional element (intent
to make such a threat). As the Federal Court of Appeal noted in McCoy v Canada
(Attorney General), 2003 FCA 118 at paragraph 14, the Supreme Court held
that to prove a threat, it was necessary to establish whether the accused had
the intent to intimidate or whether his or her words were meant to be taken
seriously. The entire prison context, as well as the specific circumstances of
the alleged act and the interpretation that may be given to it, must be
considered by the decision-maker (see Boucher-Côté v Canada (Attorney
General), 2014 FC 1065 at paras 34 and 42 [Boucher-Côté]; see also Swift
v Canada (Attorney General), 2014 FC 1143 at para 75; Alix v
Canada (Attorney General), 2015 FC 1051 at para 39). Clearly, this was not
done here, and it is not for this Court to substitute myself for the
decision-maker to correct the shortcomings of incorrect and incomplete
reasoning, which is the case in the matter at hand.
[20]
This case is also different from the cases cited
by the respondent. In passing, in Boucher-Côté, our Court refused to
intervene because the decision-maker initially explained why he did not believe
the applicant’s version. It then addressed the other evidence, including the
testimony of the officer and the fellow inmate, before finding that none of the
evidence raised a reasonable doubt in his mind. This is not the case in this
matter. Several questions relating to the guilty intent are still unanswered
and relevant evidence has been ignored or otherwise arbitrarily excluded by the
decision-maker without an objective analysis of all the evidence, based on the
act committed and the context in which it was committed. Consider, for example,
the distance of fifty feet separating officer Rhéaume-Drouin from the
applicant, that officer Rhéaume-Drouin raised his hand in a sign of enquiry,
that the applicant started laughing, that they had never had prior contact,
that they did not speak during the incident, that the applicant did not have
any intention or reason to make threats, etc. Even if he did not believe the
applicant (and fellow inmate Steven), the decision-maker could not ignore or
otherwise dismiss without just cause these uncontested elements with respect to
the analysis of the guilt, beyond a reasonable doubt, of the applicant. As a
whole, the impugned decision is unreasonable.
[21]
For these reasons, the application for judicial
review is allowed. The impugned decision is quashed and the case is referred
back for a rehearing before another independent chairperson from Donnacona
Institution’s disciplinary court. Without costs.
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