Date: 20030512
Docket: T-344-02
Citation: 2003 FCT 579
Ottawa, Ontario, the 12th day of May 2003
Present: The Honourable Mr. Justice Rouleau
Between:
MICHAEL CASTER
Applicant
And:
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Chairperson of the Disciplinary Court (the Chairperson), who found the applicant guilty of the disciplinary offence set out in subsection 40(l) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act).
[2] The applicant is an inmate at Donnacona Institution.
[3] On December 20, 2001, Correctional Officer Paquet asked the applicant to provide a urine sample. The applicant told Officer Paquet that he had to go to pray immediately, since it was Ramadan. He asked the Officer if he could follow him "[TRANSLATION] right away after a few minutes." Officer Paquet said no.
[4] At his disciplinary hearing on February 7, 2002, the applicant testified to this effect and told the Court that he would not have objected to providing a urine sample after he finished his prayers.
[5] Based on the fact that he had no choice, since neither the Act nor the Regulations provided for any exceptions, the Chairperson of the Court found him guilty of the disciplinary offence set out in subsection 40(l) of the Corrections and Conditional Release Act.
[6] The applicant maintains that the Disciplinary Court erred in finding him guilty despite his suggestion to resolve the matter informally. Counsel for the applicant also submits that the Court erred in law in refusing to consider the defence of due diligence, thereby making the disciplinary offence in dispute an offence of absolute liability or strict liability, and infringing section 7 of the Canadian Charter of Rights and Freedoms.
[7] Despite the applicant's submissions, I am of the view that it is not the responsibility of the Chairperson of the Disciplinary Court to investigate the merits of the decision to issue a disciplinary offence charge against an inmate; that responsibility lies with the institutional head in accordance with the power granted by subsection 41(2) of the Act, which reads as follows:
| 2) Where an informal resolution is not achieved, the institutional head may, depending on the seriousness of the alleged conduct and any aggravating or mitigating factors, issue a charge of a minor disciplinary offence or a serious disciplinary offence.
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(2) À défaut de règlement informel, le directeur peut porter une accusation d'infraction disciplinaire mineure ou grave, selon la gravité de la faute et l'existence de circonstances atténuantes ou aggravantes.
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[8] If the applicant believed that there had been a due diligence defence in this case and that therefore the institutional head should not have decided to issue a disciplinary offence charge against him, he should have challenged that decision by using the grievance procedure in sections 90 and 91 of the Act and sections 74 to 82 of the Corrections and Conditional Release Regulations (SOR/92-620).
[9] The applicant did not avail himself of that procedure. He submits that the grievance procedure is not available for disciplinary offences because section 39 of the Act states that inmates shall not be disciplined otherwise than in accordance with sections 40 to 44 and the regulations.
[10] In my view, sections 40 to 44 of the Act do not exclude the possibility of using the grievance procedure to challenge a decision prior to the hearing by the Chairperson. Accordingly, it would be possible to challenge the decision of the institutional head to issue a disciplinary offence charge by means of the grievance procedure.
[11] Commissioner's Directive No. 580 provides for such a remedy in paragraph 55:
| Inmates may use the grievance procedure when they consider that:
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Un détenu peut présenter un grief lorsqu'il estime que :
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| a. an institutional official who chaired the hearing failed to adhere to established procedures; or
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a. Un agent de l'établissement qui a présidé l'audience n'a pas respecté les procédures établies; ou
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| b. institutional officials did not adhere to proper procedures prior to a hearing by the independent chairperson.
(My emphasis)
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b. Les agents de l'établissement n'ont pas suivi les procédures adéquates préalables à l'audition du cas par un président indépendant.
(Je souligne)
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[12] On the other hand, paragraph 56 of Commissioner's Directive No. 580 states that decisions rendered by the independent chairperson cannot be grieved.
[13] The independent chairperson is appointed under paragraph 24(1)(a) of the Act, which provides that the Minister shall appoint a person, other than a staff member or an offender, who has knowledge of the administrative decision-making process to be an independent chairperson for the purpose of conducting hearings of serious disciplinary offences:
| 24. (1) The Minister shall appoint
(a) a person, other than a staff member or an offender, who has knowledge of the administrative decision-making process to be an independent chairperson for the purpose of conducting hearings of serious disciplinary offences;
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24. (1) Le ministre doit nommer :
a) à titre de président indépendant chargé de procéder à l'audition des accusations d'infraction disciplinaire grave, une personne qui connaît le processus de prise de décisions administratives et qui n'est pas un agent ou un délinquant;
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[14] Paragraph 9 of Commissioner's Directive No. 580 states that an offence under subsection 40(l) of the Act is a major offence that will be heard by the independent chairperson:
| 9. If an inmate is charged under subsection 40 (k) or (l) of the Corrections and Conditional Release Act, this will normally be considered a major offence and will be heard by the independent chairperson.
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9. Si un détenu est accusé en vertu du paragraphe 40 k) ou l) de la Loi sur le système correctionnel et la mise en liberté sous condition, il sera normalement réputé avoir commis une infraction grave et sera jugé par un président indépendant.
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[15] Subsection 43(3) of the Act provides that 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) 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.
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(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.
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[16] Therefore, the role of the person conducting the hearing, in this case the Chairperson, is to hold a hearing to determine whether the inmate is guilty beyond a reasonable doubt of the disciplinary offence for which he received a notice of offence, and not to determine whether the charge should have been issued. There is no express provision in the Act or in the regulations permitting the chairperson to substitute himself for the institutional head to determine whether circumstances allowed for an informal resolution.
[17] A defence of due diligence cannot be raised before this level. The Act does not provide for any exception to or departure from this rule.
[18] For these reasons, the application for judicial review is dismissed.
"P. Rouleau"
Judge
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: T-344-02
STYLE OF CAUSE: MICHAEL CASTER and ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal
DATE OF HEARING: April 30, 2003
DATED: May 12, 2003
APPEARANCES:
Daniel Royer FOR THE APPLICANT
Éric Lafrenière FOR THE RESPONDENT
SOLICITORS OF RECORD:
Labelle, Boudrault, Côté & Associés FOR THE APPLICANT
434 Sainte-Hélène Street
Montréal, Quebec
H2Y 2K7
MORRIS ROSENBERG FOR THE RESPONDENT
Department of Justice
Guy-Favreau Complex
200 René- Lévesque Blvd. West
East Tower, 5th floor
Montréal, Quebec
H2Z 1X4
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