Date: 19980714
Docket: T-247-98
Ottawa, Ontario, the 14th day of July 1998
Present: The Honourable Mr. Justice Pinard
Between:
| MICHEL LAFLAMME, inmate, presently incarcerated at Drummond Institution, located at 2025, boul. Jean de Bréboeuf, Drummondville, District of Drummond, Province of Quebec, J2B 7Z6; |
|
Applicant
- and -
| CORRECTIONAL SERVICE OF CANADA, located at 3, Place Laval, Laval, District of Laval, Province of Quebec, H7W 1A2; |
|
Respondent
- and -
| ATTORNEY GENERAL OF CANADA, located at 1, rue Notre-Dame Est, room 4.100, Montréal, District of Montréal, Province of Quebec, H2Y 1B6; |
|
ORDER
The application for judicial review of the decision of the chairperson of the Disciplinary Court of Drummond Institution, dated January 21, 1998, finding the applicant guilty of a disciplinary offence and sentencing him to five days detention with loss of privileges, is allowed, that decision is set aside and the matter is referred back to the Disciplinary Court of Drummond Institution for rehearing.
YVON PINARD
JUDGE
Certified true translation
Peter Douglas
Date: 19980714
Docket: T-247-98
Between:
| MICHEL LAFLAMME, inmate, presently incarcerated at Drummond Institution, located at 2025, boul. Jean de Bréboeuf, Drummondville, District of Drummond, Province of Quebec, J2B 7Z6; |
|
Applicant
- and -
| CORRECTIONAL SERVICE OF CANADA, located at 3, Place Laval, Laval, District of Laval, Province of Quebec, H7W 1A2; |
|
Respondent
- and -
| ATTORNEY GENERAL OF CANADA, located at 1, rue Notre-Dame Est, room 4.100, Montréal, District of Montréal, Province of Quebec, H2Y 1B6; |
|
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the chairperson of the Disciplinary Court of Drummond Institution (the disciplinary court), dated January 21, 1998, finding the applicant guilty of a disciplinary offence and sentencing him to five days detention with loss of privileges.
[2] Both the allegation and the disciplinary sentence against the applicant appear on the same document, entitled "Inmate Offence Report and Notification of Charge" (the Notification). Initially, the Notification plainly describes the alleged offence as follows:
| [TRANSLATION] IS IN POSSESSION OF STOLEN PROPERTY. |
|
| WHEN WE SEARCHED HIS CELL, WE FOUND AN EMERGENCY LIGHT. "SEE MEMORANDUM" |
|
[3] The memorandum in question refers to the disappearance of three light bulbs from the "EXIT" fixtures adjacent to cells 22 to 42 of the Institution, and calls for the prescribed sanctions to be imposed and for appropriate surveillance to be exercised.
[4] A little farther down, however, toward the middle of the Notification, it says that the charge is brought pursuant to paragraph 40(i) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act).
[5] However, section 40 of the Act lists the various disciplinary offences of which an inmate can be found guilty, and the offence of being in possession of stolen property is set out in paragraph 40(e):
| 40. An inmate commits a disciplinary offence who
| (e) is in possession of stolen property; |
|
40. Est coupable d'une infraction disciplinaire le détenu qui :
| e) a en sa possession un bien volé; |
|
[6] Paragraph 40(i), however, reads as follows:
| 40. An inmate commits a disciplinary offence who
| (i) is in possession of, or deals in, contraband; |
|
40. Est coupable d'une infraction disciplinaire le détenu qui:
| i) est en possession d'un objet interdit ou en fait le trafic; |
|
[7] Possession of stolen property and possession of contraband are thus two separate disciplinary offences; the Notification, which is also meant to be the decision of the disciplinary court, merely sets out the details of the sentence, without specifying which of the two offences the applicant was found guilty of.
[8] Subsection 43(3) of the Act provides:
| (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.
|
(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.
|
[9] In the case at bar, the relevant documentary evidence is therefore vague and it cannot be ascertained from that evidence which of the offences referred to in the Notification is "the disciplinary offence in question" for the purposes of subsection 43(3) supra . Thus, the applicant does not appear to have been treated fairly, as he could not have known precisely to which charge he had to answer.
[10] Furthermore, section 33 of the Corrections and Conditional Release Regulations, SOR/92-620, required that the hearing of the applicant"s disciplinary offence be recorded:
| 33. (1) The Service shall ensure that all hearings of disciplinary offences are recorded in such a manner as to make a full review of any hearing possible.
(2) A record of a hearing shall be retained for a period of at least two years after the decision is rendered.
(3) An inmate shall be given reasonable access to the record of the inmate's hearing.
|
33. (1) Le Service doit veiller à ce que toutes les auditions disciplinaires soient enregistrées de manière qu'elles puissent faire l'objet d'une révision complète.
(2) Les enregistrements des auditions disciplinaires doivent être conservés pendant au moins deux ans après la date de la décision.
(3) Tout détenu doit avoir accès, dans des limites raisonnables, à l'enregistrement de son audition disciplinaire.
|
[11] Due to a mechanical failure of the sound amplifiers, the hearing in this case could not be recorded properly; the recording is inaudible. Had the recording provided for under the Act worked properly, it would certainly have enabled this Court, on review, to make a more informed finding both on the issue of procedural fairness and on the issue of the disciplinary court"s application of subsection 43(3) of the Act.
[12] Given that the applicant has always maintained that he was never in possession of the item in question, not knowing how it might have come to be in his unlocked cell, the fact that there is no audible recording also prevents this Court from properly reviewing the administrative tribunal"s assessment of the evidence and findings of fact.
[13] Therefore, in the circumstances, I am of the view that there is a "serious possibility" of an error regarding which the lack of recording deprived the applicant of the grounds for applying for judicial review to which he was entitled by virtue of his rights to natural justice and procedural fairness, and under the Act (see CUPE v. Montreal , [1997] 1 S.C.R. 793, at pages 840 and 841).
[14] For all these reasons, the application for judicial review is allowed, the decision of the disciplinary court, dated January 21, 1998, is set aside and the matter is referred back to the Disciplinary Court of Drummond Institution for rehearing.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
July 14, 1998
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-247-98
STYLE OF CAUSE: MICHEL LAFLAMME
v.
CORRECTIONAL SERVICE OF CANADA
and
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JULY 7, 1998
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED JULY 14, 1998
APPEARANCES:
CATHERINE FOURNIER FOR THE APPLICANT
ÉRIC LAFRENIÈRE FOR THE RESPONDENTS
SOLICITORS OF RECORD:
BERNIER, FOURNIER FOR THE APPLICANT
DRUMMONDVILLE, QUEBEC
DEPUTY ATTORNEY GENERAL FOR THE RESPONDENTS
OF CANADA
OTTAWA, ONTARIO
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