Date: 20030502
Docket: T-874-02
Citation: 2003 FCT 545
Ottawa, Ontario, May 2, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
MARCEL LAPIERRE
Applicant
-and-
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] This is an application for judicial review from a decision by the disciplinary court of the Donnacona Penitentiary ("the tribunal"), made on May 9, 2002. The tribunal found that the applicant Marcel Lapierre was guilty of the disciplinary offence mentioned in subsection 40(l) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("the Act"). The applicant received a disciplinary sentence of a $35 fine plus, as mentioned specifically in the decision, [TRANSLATION] "10 days' suspended detention for 90 days with loss of television".
Facts
[2] The applicant is currently confined in the Cowansville Institution. However, on February 19, 2002, when the applicant was an inmate of the Donnacona penitentiary, officers at that institution established that they had reasonable grounds to believe the applicant had taken drugs.
[3] Mr. Bénard, an employee of Correctional Service Canada, stated that on February 19, 2002, at about 9:45 p.m. a suspicious odour, as mentioned in the evidence (and the decision), [TRANSLATION] "of the pot and hash type", was noticed in the music room. There were four persons in the room, including the applicant. The officers conducted a strip search of two inmates, Mr. Lapierre and Mr. Perreault, but found nothing. The room was also searched, but again they found nothing. Mr. Bénard said that the reasonable suspicions of the authorities were justified by two facts that occurred on February 19, 2002, namely the fact that Mr. Lapierre's eyes were glazed and that there was a smell resembling "pot and hash" in the room.
[4] The applicant was asked to give a urine sample. The request was refused. On February 20, 2002, an offence report was given to the applicant.
[5] On February 28, 2002, the appearance for the offence report of February 19, 2002, took place. The applicant pleaded not guilty to the charge and the hearing was set for April 4, 2002, then postponed to May 2, 2002, and finally took place on May 9, 2002.
[6] On May 9, 2002, the applicant pleaded guilty to the offence under s. 40(l) of the Act, that is for refusing or failing to provide a urine sample. The chairperson of the tribunal sentenced the applicant to a $35 fine plus 10 days' suspended detention for 90 days, with loss of television.
Questions at issue
[7] The applicant raised three questions:
1. Did the chairperson of the tribunal, Mr. Maranda, make an error of law or render a patently unreasonable decision by not acquitting the applicant on the ground that the offence report was vague, contrary to paragraph 25(1)(a) of the Corrections and Conditional Release Regulations?
2. Did the chairperson of the tribunal make an error of law or render a patently unreasonable decision by considering that the facts that a person's eyes were glazed and that there was a smell of drugs in a room where there were four persons constituted grounds to believe that a particular individual had consumed alcohol or drugs?
3. Did the chairperson of the tribunal make a patently unreasonable decision by failing to apply the rule of reasonable doubt and the presumption of innocence?
Analysis
[8] At the hearing, counsel for the applicant informed the Court that he was withdrawing questions 1 and 3 above. Accordingly, this analysis will deal only with the second question, which in my opinion should be framed as follows: "Did the chairperson of the tribunal make an error of law or render a patently unreasonable decision by considering that the facts that a person's eyes were glazed and there was a smell of drugs in a room where there were four persons constituted grounds to believe that a particular individual had consumed alcohol or drugs?" Did the tribunal have reasonable grounds to believe that the inmate was committing or had committed the offence mentioned in paragraph 40(k) and that a urine sample was necessary in order to prove the offence had been committed?
Applicable legislation
[9] Section 54 of the Act reads as follows:
| 54. Subject to section 56 and subsection 57(1), a staff member may demand that an inmate submit to urinalysis
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| 54. L'agent peut obliger un détenu à lui fournir un échantillon d'urine dans l'un ou l'autre des cas suivants :(a) where the staff member believes on reasonable grounds that the inmate has committed or is committing the disciplinary offence referred to in paragraph 40(k) and that a urine sample is necessary to provide evidence of the offence, and the staff member obtains the prior authorization of the institutional head . . . (My emphasis)
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a) il a obtenu l'autorisation du directeur et a des motifs raisonnables de croire que le détenu commet ou a commis l'infraction visée à l'alinéa 40k) et qu'un échantillon d'urine est nécessaire afin d'en prouver la perpétration . . . (Je souligne)
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[10] Paragraphs 40(k) and (l) of the Act reads as follows:
| 40. An inmate commits a disciplinary offence who
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40. Est coupable d'une infraction disciplinaire le détenu qui
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| k) takes an intoxicant into the inmate's body;
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k) introduit dans son corps une substance intoxicante;
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| (l) fails or refuses to provide a urine sample when demanded pursuant to section 54 or 55 . . . (My emphasis)
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l) refuse ou omet de fournir l'échantillon d'urine qui peut être exigé au titre des articles 54 ou 55 . . .
(Je souligne)
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[11] Subsection 57(1) of the Act reads as follows:
| 57(1) Right to make representations
An inmate who is required to submit to urinalysis pursuant to paragraph 54(a) shall be given an opportunity to make representations to the institutional head before submitting the urine sample.
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57(1) Droit de présenter des observations
Lorsque la prise est faite au titre de l'alinéa 54a), l'intéressé doit, auparavant, avoir la possibilité de présenter ses observations au directeur.
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Standard of review
[12] It is well settled that this Court exercises judicial restraint toward disciplinary decisions in correctional situations. In Forrest v. Canada (Attorney General), 2002 F.C.T. 539, [2002] F.C.J. No. 713 (QL), Kelen J. summed up the previous decisions of this Court dealing with the standard of review applicable to decisions by a disciplinary court in a penitentiary. At para. 19 of his reasons, he wrote:
Accordingly, this Court will not intervene on a question of fact, or a question of mixed fact and law unless the Disciplinary Court:
(i) has made the finding of fact in a patently unreasonable manner; or,
(ii) has made the finding of mixed fact and law in an unreasonable manner, i.e. without a reasonable basis.
As well, the role of the Court on judicial review is to determine if the Disciplinary Court had evidence and a reasonable basis on which to make its decision, and to ensure that the Disciplinary Court did not err in law or fail to observe a principle of natural justice or procedural fairness in making its decision.
This passage clearly summarizes the standard of review that must be applied in the case at bar.
[13] The applicant argued that the tribunal made an error of law or rendered a patently unreasonable decision by considering that the fact a person's eyes were glazed and there was a smell of drugs [TRANSLATION] "of the pot and hash type" in a room where there were four persons constituted grounds to believe that a particular individual had consumed alcohol or drugs.
[14] The applicant further noted that the tribunal made an error of law in considering that the two officers had [TRANSLATION] "a reasonable doubt" when it should have found [TRANSLATION] "reasonable grounds".
[15] The respondent noted that the applicant and three other inmates were in a room of about 15 by 14 feet from which there was a suspicious smell of "pot or hash". He submitted that a person might reasonably think the occupants of the room were smoking or had just smoked "pot or hash" as the eyes of the applicant himself were glazed. Consequently, the respondent submitted that the authorities had reasonable grounds to require the applicant to provide a urine sample.
[16] The applicant submitted that the fact someone's eyes are glazed and there is a smell of drugs in a room where there are four persons present does not immediately mean there are reasonable grounds to think a particular individual has consumed alcohol or drugs. According to the applicant, several factors could explain a person having red eyes.
[17] To support his argument, the applicant filed La Reine v. Pierre Bergevin (Laval Municipal Court, District of Laval, No. 0080134877): the tribunal found that the smell of drugs in a suspect's vehicle and the fact that the latter's eyes were glazed were not sufficient to establish reasonable and probable grounds to believe the suspect had a controlled substance in his possession. In my opinion, that case can be distinguished. It seems clear to me that the situation and environment of a person in prison are quite different factors from those of a person who is not in prison. In order to ensure the safety of staff, inmates and the public and to prevent violence, Correctional Service Canada cannot tolerate the use of intoxicating substances inside the walls of its institutions. Accordingly, control of the disciplinary conduct of an individual in prison is necessarily different from that which may be applied to a person who is at liberty.
[18] In the particular circumstances of this case, I consider that the officers, under s. 54 of the Act, had "reasonable grounds [to believe] that the inmate [had] committed . . . the disciplinary offence referred to in paragraph 40(k) and that a urine sample [was] necessary to provide evidence of the offence". Consequently, I find that the tribunal made no reviewable error.
[19] Further, if the applicant wished to challenge the reasonable grounds of the prison authorities, he should have made his submissions to the institutional head within the deadline mentioned in subsection 57(1) of the Act, when he was ordered to supply a urine sample, as appears from part two of the notice to provide a urine sample.
[20] As to the phrase [TRANSLATION] "reasonable doubt" used by the chairperson of the tribunal at the hearing, the respondent noted that the latter correctly described the issue when he concluded that it was about the presence of [TRANSLATION] "reasonable grounds", not a reasonable doubt. I am satisfied that the use of the phrase "reasonable doubt" by the chairperson is not a significant error: rather, it is a misuse of a phrase taken from criminal law.
[21] I am satisfied that the tribunal's decision was reasonably based on the evidence and that the tribunal did not make an error of law or fail to observe a rule of natural justice or procedural fairness in making its decision. For all these reasons, this application for judicial review will be dismissed.
ORDER
THE COURT ORDERS:
1. The application for judicial review of the decision by the disciplinary court of the Donnacona Penitentiary on May 9, 2002, is dismissed.
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"Edmond P. Blanchard"
Judge
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: T-874-02
STYLE OF CAUSE: Marcel Lapierre v. The Attorney General of Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 10, 2003
REASONS [FOR ORDER OR JUDGMENT]: Blanchard J.
DATE OF REASONS: May 2, 2003
APPEARANCES:
Jérôme Parenteau FOR THE APPLICANT
Sébastien Gagné FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bernier, Parenteau FOR THE APPLICANT
425, rue Cormier
Drummondville, Quebec J2C 7H6
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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