Livingstone v. Canada (Correctional Service), 2026 FC 749

Date: 20260608

Docket: T-1475-25 Citation: 2026 FC 749

Ottawa, Ontario, June 08, 2026

PRESENT: Justice Andrew D. Little

BETWEEN:

MITCHELL LIVINGSTONE

Applicant

and

ATTORNEY GENERAL OF CANADA (Correctional Service Canada)

Respondent

REASONS AND JUDGMENT

[1] This application for judicial review concerns a decision of an Independent Chairperson (the “ICP”) at Stony Mountain Institution in Manitoba.

[2] The applicant, an inmate, was charged with a disciplinary offence under the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the “CCRA”). The ICP found him guilty. He applied to the Court to set aside that decision as unreasonable.

[3] For the reasons that follow, I conclude that the decision was unreasonable and must be set aside. In the circumstances, the matter will be remitted to the ICP at Stony Mountain with a direction to dismiss the charge.

A. Events and Proceedings before the ICP

[4] At Stony Mountain, there is a common area outdoors that inmates use for recreation. Individuals are searched on the way outside and again on the way in.

[5] On January 27, 2025, the applicant planned to go outdoors to the common area. It was “pretty chilly” outside. He was just wearing a sweater and had left his own coat in his cell. So he picked up another coat near the exit.

[6] On the way out, the applicant was subject to a routine pat-down search. Nothing. He went outside and played hockey. About an hour later he returned indoors. On the way in, a pat-down search revealed a 5-inch plastic knife-like object in the seam of the coat.

[7] On February 17, 2025, the applicant was charged with the disciplinary offence of possession of contraband contrary to paragraph 40(i) of the CCRA.

[8] On April 17, 2025, the possession charge came up for hearing. The record before the ICP consisted of an Inmate Offence Report and Notification of Charge; a Statement/Observation Report completed on January 27, 2025; a Post-search Report; an image of the contraband and seizure tag; and the applicant’s testimony at the hearing itself, a transcript of which is in the Court record.

[9] The hearing transcript reveals following additional facts:

• a)The applicant’s counsel stated at the outset that the main issue was whether the substantive offence happened or not and whether the applicant “knew the weapon was there”.

• b)The applicant testified that the weapon was “not in the jacket [he] was wearing”, and it was not his coat. (Before the ICP, the applicant disputed that the item was a weapon but that is not an issue now.)

• c)Asked whether he had seen the weapon before, the applicant answered that he had seen it used outside when playing hockey, to loosen and tighten the screws on hockey helmets so they fit on a person’s head. However, the applicant did not use any tools and did not wear a helmet the entire time he was playing hockey that day.

• d)The applicant testified that he took the coat from an exercise bike on the range. He did not go back to his cell to get his own coat because the barrier was already open. So he just grabbed it and went out. He did not know if the coat was someone else’s: it was “just in there for a while and no one [had] been touching it”, so he just grabbed it and put it on while he was leaving. He had not had that jacket before that day.

• e)The applicant testified that he was “not too sure” if he wore the coat to play hockey or not. (He testified on April 17 about events on January 27.) If he wasn’t wearing it, he put it back on before going back inside.

• f)On the way in, an officer asked the applicant if he had any contraband. He responded “no”. This exchange is also found in the officer’s Statement/ Observation Report completed on January 27, 2025 (the day of the incident).

• g)The applicant testified that he did not know anything was in the coat. His coat was in his room and he knew it was not his coat.

[10] The transcript then states:

BY MR. JANSEN:

Q. And I mean I think this is very, very obvious from everything you've said, but just to be clear, you didn’t know that that knife was in that coat?

A. No, not at all.

MR. JANSEN: Those are our questions.

THE CHAIR; But it was?

MR. LIVINGSTONE: Yes, it was in the coat.

THE CHAIR: It was in your coat and they searched you and then they found this in it. So that's what happened, right? So you had this contraband on your person. You know, the same thing goes. You grab something else that doesn't belong to you, you want to check stuff out. That's how I see it.

Anything else, Mr. Jansen?

MR. JANSEN: No.

THE CHAIR: So I do find you guilty of this charge as well, having contraband.

[11] This excerpt shows all of the reasoning provided by the ICP to find the applicant guilty beyond a reasonable doubt. The ICP imposed a fine of $50 on the applicant.

[12] I note two additional points. First, it is clear from the hearing transcript that the ICP had just heard and determined another charge against the applicant. While the ICP seems to have found the applicant guilty of the other charge (the excerpt above says he found the applicant “guilty of this charge as well”), the record in this Court does not contain any details about that other charge, the evidence or the ICP’s reasons for finding the applicant guilty.

[13] The second additional point, confirmed by counsel at the Court hearing, is that nothing in the record sheds light on the meaning of ICP’s statements that “the same thing goes” and “something else that doesn’t belong to you”.

B. Statutory provisions in the CCRA

[14] Paragraph 40(i) of the CCRA provides for the disciplinary offence:

[15] Subsection 43(3) of the CCRA sets out the standard of proof:

C. The standard of review in this Court

[16] On this application for judicial review, the parties both submitted that the standard of review is reasonableness, as described by the Supreme Court in Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, and in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.

[17] I agree. There is nothing to displace the presumption that the standard of review is reasonableness: Mason, at para 7. This Court’s cases confirm that the reasonableness standard of review applies to decisions by an Independent Chairperson under section 40 and subsection 43(3) of the CCRA: Bouab v. Canada (Attorney General), 2024 FC 315, at paras 11-12; Rana v Canada (Attorney General), 2023 FC 1014 at para 18; Bibeau v Canada (Attorney General), 2022 FC 1748 at para 6; Cliff v. Canada (Attorney General), 2022 FC 930, at para 3.

D. The Parties’ Positions

[18] The applicant raised two arguments to support his position that the ICP’s decision should be set aside as unreasonable. He argued: (a) the ICP erred in law or misapplied the law on wilful blindness as an element of the knowledge required for legal test for possession of contraband; and (b) the ICP’s reasons did not meet the minimum requirements for justification as required by Vavilov. Specifically, the applicant submitted that the ICP provided insufficient reasons related to wilful blindness, given the applicant’s accepted testimony relating to his lack of knowledge of the contraband in the coat and the available inferences from it.

[19] The respondent submitted that the ICP reasonably concluded that the applicant was wilfully blind, considering the institutional context of a disciplinary offence against an incarcerated individual and a decision-maker with expertise in that setting.

[20] The parties agreed that there are two important elements for the offence of possession of contraband that are material to this application: control and knowledge. See Bibeau, at para 8; Cliff, at para 10.

[21] The applicant submitted that an accused must be aware that he has physical custody of the item and must have knowledge of the character of the item in question (“what the thing is”). The applicant also maintained that both elements must co-exist with an act of control (citing R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para 16). The respondent advised that it must be proven that an accused “knew they had the item and knew what the item was”, and such knowledge must exist contemporaneously with an act of control over the item.

[22] Most of the argument on this application concerned the knowledge element, which was also the key issue raised by the applicant at the outset of the hearing before the ICP.

[23] The parties agreed that for the requisite mental element (mens rea) for the offence of possession of contraband, an individual must have had either actual knowledge of the contraband or was wilfully blind to it. The parties agreed that recklessness is not part of the required mental element for this offence. Accordingly, because the ICP appeared to accept and the parties agreed that the applicant had no actual knowledge of the contraband in the seam of the coat, the only mens rea issue was whether the applicant was wilfully blind.

[24] The applicant submitted that the ICP’s brief reasons relied either on a form of constructive knowledge (which he argued is not lawful, citing Taylor v. Canada (Attorney General), 2004 FC 1536, at para 11), on recklessness (which is also not permissible) or on wilful blindness. However, according to the applicant, if the ICP relied on wilful blindness, the ICP’s reasons contained an error of law and failed to reasonably apply the law to the facts. The applicant relied on Charles v. Canada (Attorney General), 2017 FC 435 and sought to distinguish the Court’s decision in Bibeau, upon which the respondent relied.

[25] The parties accepted the descriptions of wilful blindness in the Supreme Court’s decisions in R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras 21-24, and Sansregret v. The Queen, [1985] 1 S.C.R. 570, at pp. 584-586. See also Bibeau, at para 18; Charles, at paras 27-29. The Supreme Court stated in Briscoe:

[21] Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, [1985] 1 S.C.R. 570, and R. v. Jorgensen, [1995] 4 S.C.R. 55. As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?”

[22] Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness…

[…]

[24] Professor Don Stuart makes the useful observation that the expression “deliberate ignorance” seems more descriptive than “wilful blindness”, as it connotes “an actual process of suppressing a suspicion”. Properly understood in this way, “the concept of wilful blindness is of narrow scope and involves no departure from the subjective focus on the workings of the accused’s mind” (Canadian Criminal Law: A Treatise (5th ed. 2007), at p. 241). While a failure to inquire may be evidence of recklessness or criminal negligence, as for example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, wilful blindness is not simply a failure to inquire but, to repeat Professor Stuart’s words, “deliberate ignorance”.

[Emphasis added.]

[26] With respect to justification as required by Vavilov, the applicant submitted that the ICP did not adequately explain how a finding of guilt was the only reasonable inference that could be drawn from the evidence and facts accepted (citing Rana), and did not explain the finding of guilt despite the apparent acceptance of facts that were sufficient to raise a reasonable doubt (citing Sidhu v. Canada (Attorney General), 2014 FC 624).

E. Analysis

[27] Applying the reasonableness standard of review, I conclude that the ICP’s decision must be set aside for failure to justify the finding of guilt.

[28] The ICP’s conclusion was supported by the following statement to the applicant (re-stated in its entirety for ease of reference):

THE CHAIR: It was in your coat and they searched you and then they found this in it. So that's what happened, right? So you had this contraband on your person. You know, the same thing goes. You grab something else that doesn't belong to you, you want to check stuff out. That's how I see it…

[29] Even accounting for the institutional context, these reasons are cursory. They are markedly shorter and less substantial than any of the decisions cited by the parties: compare Rana, at paras 8-10 and 23. In my view, they do not meet the minimum requirements for a reasonable decision that was justified and transparent in the present legal and institutional context.

[30] The parties agreed that the ICP must have accepted that the applicant did not have actual knowledge of the contraband, as he had testified immediately before the ICP made the statement above. That is a fair inference from the transcript and context; it is also consistent with what the applicant told the officer prior to the second pat-down search.

[31] The parties therefore proceeded to argue about whether the ICP erred with respect to wilful blindness – the mental state that the parties agreed the ICP must have used to find the applicant guilty because, according to both parties, there was no other alternative that could have led to a lawful finding of guilt.

[32] The problem is that the ICP did not address wilful blindness. There was no analysis or even any mention of it. Nor do we know what facts or circumstances may have led the ICP to infer that the applicant had knowledge of the contraband: see similarly, Rana, at paras 20, 29.

[33] The ICP provided no reasoning to support a conclusion that the applicant was wilfully blind as that term is understood in law. The applicant testified that he did not actually know the object was in the coat. The question under the wilful blindness standard in Briscoe was: did the facts in the evidence, or the circumstances, lead the ICP to infer that the applicant suspected that the object was in the coat and deliberately ignored its presence? If so, what were those facts or circumstances? Did the ICP disbelieve the applicant’s testimony that he did not wear a helmet to play hockey, and that he did not use the object found in the coat seam to adjust his helmet? Or did the ICP conclude that the applicant knew very well that he would be searched when he returned from outdoors (e.g., as is always the case, and as the applicant testified) but deliberately took no action to search so he could claim ignorance? The applicant testified that he was unsure if he wore the coat to play hockey and did not testify that he searched the coat before he walked back inside. Did the ICP rely on those gaps to draw an inference on wilful blindness?

[34] The ICP’s statement sheds no light on these questions. Although the applicant testified at the hearing, the ICP asked him no questions to clarify the evidence or bring out new facts going to his knowledge, including wilful blindness. The ICP made no express factual findings to ground an inference of wilful blindness based on the applicant’s suspicion and conscious decision not to check the coat, or that the applicant knew the nature or “character” of the object (as the parties agreed was necessary for guilt).

[35] It could also be that the ICP used recklessness as the basis on which to find the knowledge required for possession. Recklessness involves “knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur”: Sansregret, at p. 584, quoted in Briscoe, at para 22. The ICP’s statement provided no insight on whether recklessness was considered and rejected, or considered and accepted, or considered in lieu of wilful blindness at all. If the ICP used recklessness, the parties agreed that was an error in law. If not, the decision suffers from a distinct lack of substantive reasoning.

[36] It is true that the ICP’s reasons do not need to be perfect (Vavilov, at para 91) and that the institutional context matters. I also appreciate that the ICP likely had institution-specific expertise, experience and knowledge that may have influenced the decision. However, none of that expertise was shown in the reasons provided: Vavilov, at para 94.

[37] Vavilov contemplates that certain factors outside of the expressed reasons may “explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency”: Vavilov, at paras 94 [quotation], 123; Mason, at paras 61, 69, 95-97. A decision maker’s reasons must be read “in light of the record and with due sensitivity to the administrative regime in which they were given”: Vavilov, at paras 91-96, 103; Mason, at paras 61, 91. To that end, the reviewing court may consider the institutional context and record before the decision maker, such as the contents of transcripts of a hearing, the parties’ submissions, prior communications with the parties leading to the decision at issue, past decisions of the decision maker, and policies and bulletins: Mason, at paras 61, 91-97; Vavilov, at paras 94-97, 103, 303; Le-Vel Brands, LLC v. Canada (Attorney General), 2023 FCA 177, at paras 39-42, 47, 55; Alexion Pharmaceuticals Inc. v. Canada (Attorney General), 2021 FCA 157, at paras 15-17.

[38] The Supreme Court in Vavilov confirmed that the reviewing court may “connect the dots on the page where the lines, and the direction they are headed, may be readily drawn”: at para 97. However, the decision make must provide a rational chain of analysis to support the outcome: Mason, at para 65; Vavilov, at paras 85, 96, 103. Neither the Court nor the respondent is permitted to supply its own reasons or buttress those provided by the decision maker in an effort to backfill a hole with additional reasoning that the decision maker did not provide: Mason, at paras 62, 101; Vavilov, at para 96; Rana, at para 29. Nor may the court guess or speculate when the decision maker’s reasons are silent: Vavilov, at para 97.

[39] In this case, the ICP’s reasons, read with the record filed with the Court, simply do not reveal the ICP’s chain of reasoning to conclude that the applicant had the requisite knowledge to support a finding of guilt on the charge of possession of contraband. The Court cannot “connect the dots” because there are insufficient dots to connect: Vavilov, at para 97. As noted above, nothing in the record sheds light on the ICP’s conclusions at the hearing that “the same thing goes” and “something else that doesn’t belong to you”. Accordingly, I am unable to determine whether any reasoning provided elsewhere – such as during a hearing earlier the same day – could assist to justify the ICP’s decision: see Le-Vel Brands, at paras 40-42, 47.

[40] The Court on judicial review must have confidence from the reasons provided that the decision was reached in a manner that respected the legal constraints and the critical facts in the record. Having carefully considered reasons provided in light of the testimony and the rest of the record before the ICP, I do not have such confidence.

 

F. Remedy

[41] The usual remedy for an unreasonable decision is to set it aside and remit the matter back for redetermination. While it is appropriate to set aside the ICP’s decision, I find it inappropriate to remit the present matter for redetermination on the merits.

[42] Instead, the Court will return the matter to the current ICP with a direction that the charge be dismissed. The Federal Courts have done so in previous cases: see Sharif v. Canada (Attorney General), 2018 FCA 205, at paras 53-55 (a case that also involved deficient reasons: at paras 32-33, 36); Flegel v. Canada (Attorney General), 2024 FC 1389, at para 35.

[43] At the hearing before the ICP, counsel for the applicant confirmed at the outset that the main issue was whether the applicant knew that the weapon was in the coat. There was no doubt that it was there and, as both parties acknowledged (and I agree), the ICP accepted the applicant’s testimony that he did not know the weapon was there. As noted already, the ICP made no express factual findings or conclusions on wilful blindness. The ICP also did not ask the applicant any questions to clarify his evidence or to bring out additional facts going to a possible inference of wilful blindness. For example, the applicant was not asked whether he checked the coat before walking back inside prior to the second pat-down search. I note that when testifying in April 2025, the applicant could not recall whether he wore the coat while playing hockey in late January.

[44] In my view, given the parties’ agreement on the applicable law and the applicant’s lack of actual knowledge, the requirements of subsection 43(3) of the CCRA, and the absence of facts found by the ICP to ground an inference of the required mental element, there is no realistic basis for a finding of guilt beyond a reasonable doubt on the present record. See Sharif, at para 54.

[45] Exercising the Court’s discretion on remedy in the present circumstances, it would serve no useful purpose to return the matter for redetermination: Vavilov, at para 142; Sharif, at para 55. The proper course is to return it with a direction to dismiss the charge. In addition, any consequences associated with the prior conviction must be reversed: Sharif, at para 56.

G. Conclusion

[46] For these reasons, the application for judicial review is allowed. The ICP’s decision will be set aside. The matter will be remitted to the ICP for Stony Mountain Institution with a direction that the charge be dismissed.

[47] The applicant did not seek costs, so there will be no order for costs.

JUDGMENT IN T-1475-25

THIS COURT’S JUDGMENT is that:

1. The style of cause is amended to remove the reference to Correctional Service of Canada, so that the respondent is the Attorney General of Canada.

2. The application for judicial review is allowed. The decision of the Independent Chairperson dated April 17, 2025, is set aside.

3. The matter is remitted to the Independent Chairperson responsible for Stony Mountain Institution, who is directed to dismiss the disciplinary charge against the applicant under paragraph 40(i) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, arising from the events on January 27, 2025, that are discussed in the Reasons. In addition, any consequences associated with the prior conviction must be reversed.

blank	"Andrew D. Little"
blank	Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-1475-25
STYLE OF CAUSE:	MITCHELL LIVINGSTONE v ATTORNEY GENERAL OF CANADA (Correctional Service of Canada)
PLACE OF HEARING:	WINNIPEG, MANITOBA
DATE OF HEARING:	february 18, 2025
REASONS FOR JUDGMENT AND JUDGMENT:	A.D. LITTLE J.
DATED:	JUNE 8, 2025

APPEARANCES:

Leif Jensen	For The Applicant
Lee Kellie-McMillan	For The Respondent

SOLICITORS OF RECORD:

Legal Aid Manitoba Winnipeg, Manitoba	For The Applicant
Deputy Attorney General of Canada Winnipeg, Manitoba	For The Respondent