Date: 20031003
Docket: T-1514-02
Citation: 2003 FC 1144
Montréal, Quebec, October 3, 2003
Present: The Honourable Justice Gauthier
BETWEEN:
JERRY CREWS
demandeur
et
PROCUREUR GÉNÉRAL DU CANADA
défendeur
REASONS FOR ORDER AND ORDER
[1] Mr. Crews seeks judicial review of the decision of the disciplinary court of the Donnacona penitentiary (the institution) which sentenced him to twenty days without television privilege for participating in an activity likely to jeopardize the security of the penitentiary (section 40(m) of the Corrections and Conditional Release Act, S.C. 1992 c. 20 (CCRA)).
The Facts
[2] Mr. Crews is an inmate at the institution which is a maximum security penitentiary. On June 3, 2002, he was in the courtyard of the institution with six or seven other inmates for his daily one-hour walk.
[3] Some inmates apparently started a fire in a corner of the courtyard, using their raincoats. As soon as the fire was identified, the inmates were ordered to re-enter the detention centre through the intercom. It is unclear whether these orders were given in the two official languages. They were definitely given in French, probably not in English. Mr. Crews is an anglophone. While the initial order to reintegrate the detention centre was being ignored by all the inmates in the courtyard, firemen were called to the scene.
[4] For security reasons, firemen are not allowed to enter the courtyard while inmates are still there. However, it also appears that one or two firemen did go on the walkway overhanging the courtyard.
[5] In order to rectify the situation, Mr. Simard, a security agent, also went on the walkway overhanging the courtyard to order the inmates to get inside immediately otherwise, tear gas would be used against them. Again, Mr. Simard who is not fluently bilingual gave this order in French. However, Mr. Simard testified that his body language was very clear and the situation could not be misunderstood by anyone there. In effect, by that time, the fire was about six to seven feet high in this small courtyard measuring 20 x 24 feet, he showed the gun used to disperse gas to the inmates who were looking at him and made clear signs with his arms towards the door which had been unlocked to ensure that they could all reintegrate the detention centre without delay. In response, some inmates (Mr. Crews was not specifically identified as one of them) gave him the finger while others were laughing. Nobody left the courtyard.
[6] It is only after the security agents used tear gas in the courtyard that the inmates evacuated the courtyard.
[7] Like the other inmates who were in the courtyard that day, Mr. Crews was charged under section 40(m) of CCRA. The disciplinary court heard his case on August 2nd, August 15th, and August 22nd, 2002.
[8] During the hearing, Mr. Crews who was represented by counsel requested the permission to review a video tape which he believed recorded the whole incident.
[9] After investigating the matter, this request was denied because the president of the disciplinary court held that this evidence was not pertinent to his inquiry.
[10] Three security agents testified as to the various orders given after the fire was identified. Mr. Crews also testified and he confirmed that he was indeed in the courtyard until after it was gassed. His defence was that he never understood the orders to evacuate the courtyard because they were given in French through the intercom and that he "didn't understand much of ... what happened in that yard that day". He claimed that he re-entered the detention centre as soon as his name was called. This was apparently the normal procedure. Nowhere in his affidavit or in his submissions did Mr. Crews indicate that he did not see Mr. Simard on the walkway or did not know that because of the urgency of the situation the door was unlocked to enable the inmates to enter immediately into the detention centre.
[11] The decision of the disciplinary court was rendered orally at the end of the hearing on August 22, 2002. It is clear that Mr. Crews was found guilty because he failed to comply with Mr. Simard's request to evacuate the courtyard failing which rigorous measures (gas) would be used. Mr. Simard was only a few feet from the inmates when he made clear gestures that could not be misunderstood. The president found that this body language is a universal language.
The Issues
[12] Mr. Crews raises the following issues:
(a) Did the disciplinary court breach its duty of fairness by refusing him the right to view the video recording of the incident in the courtyard?
(b) Was the disciplinary court patently unreasonable in its interpretation of the testimonial evidence and did it err in finding that he was guilty "beyond reasonable doubt" as required by section 43 of the CCRA?
Analysis
[13] In Forest v. Attorney General of Canada [2002] F.C.J. No. 713, Kelen J. examined in details the standard of review applicable to decisions taken in penitentiary disciplinary proceedings. I agree with him that on questions of fact, our Court will not intervene unless the disciplinary court's decision is patently unreasonable. With respect to a mixed question of fact and law, the standard is reasonableness. Finally, the Court will intervene to ensure that the disciplinary court has not failed to observe a principle of natural justice or procedural fairness.
a) Video recording
[14] Section 31.(1)(a) of the Corrections and Conditional Release Regulations SOR/92-620 (the Regulations) states:
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31.(1)The person who conducts a hearing of a disciplinary offence shall give the inmate who is charged a reasonable opportunity at the hearing to
(a) question witnesses through the person conducting the hearing, introduce evidence, call witnesses on the inmate's behalf and examine exhibits and documents to be considered in the taking of the decision
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31.(1) Au cours de l'audition disciplinaire, la personne qui tient l'audition doit, dans des limites raisonnables, donner au détenu qui est accusé la possibilité :
a) d'interroger des témoins par l'intermédiaire de la personne qui tient l'audition, de présenter des éléments de preuve, d'appeler des témoins en sa faveur et d'examiner les pièces et les documents qui vont être pris en considération pour arriver à la décision;
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[15] Mr. Crews argues that the disciplinary court's refusal to show him the videotape constitutes a breach of section 31(1) of the Regulations above as well as section 35 of the Charter of human rights and freedoms, RSQ., c. C-12 which guarantees that every accused has a right to a full and complete defence. He also relies on the decision of this Court in Jean-Pierre Langlois v. Service correctionnel du Canada, T-54-00, Lemieux J., rendered August 17, 2000.
[16] The Court notes that the decision in Jean-Pierre Langlois above was a judgment by consent. It does not detail the particular facts of the case. However, it appears from representations made before the disciplinary court that this video recorded a fight in which Mr. Langlois was involved and which was at the very heart of the disciplinary proceedings in that case. There is little doubt that in such circumstances, the evidence was relevant.
[17] In that respect, the respondent clearly stated at the hearing that if the evidence had been found relevant to the matter before the disciplinary court, it should have been given to Mr. Crews. I agree. The issue is therefore whether the disciplinary court's finding that the video recording was not relevant to its inquiry contains a reviewable error.
[18] On August 2, when Mr. Crews first indicated that he wanted to view the video made with a portable video camera on the day of the incident, the relevance of this evidence was discussed. Mr. Crews indicated that the video would confirm that he had his coat on when he left the courtyard and therefore that it was not used to start the fire. He also felt that it would show that he left peacefully as soon as his name was called after gas was used in the courtyard.
[19] At the next hearing on August 15, the president asked again how the video would impact on the matter before him. This time, Mr. Crews mentioned that one could probably hear the orders given, in what language they were given, if there were noises preventing him from hearing those orders, how quickly he left the courtyard after it was gassed and where he was standing in the courtyard when those orders were given. On that basis, the president of the disciplinary court agreed to view the video with Mr. Crews's counsel. But, because the equipment necessary to do so was not available, the hearing was adjourned to August 22nd.
[20] At the beginning of the next session, the president was advised by the assessor that the video was in fact made from the interior of the detention centre with no sound or image of what went on the walkway where Mr. Simard was standing. Also, the video camera had been brought in to record the use of gas in the courtyard. Thus, it did not record the fifteen or twenty minutes before such event.
[21] On that basis, the president held that given the nature of the offence before him, the video could not bring any light on any contested issue before him.
[22] I understand from the evidence that at best the only surrounding circumstances that could be recorded from the interior of the detention centre were the number of inmates in the courtyard, the height of the fire, the courtyard, where each inmate was when the courtyard was gassed, and how the inmates exited the courtyard thereafter. None of these elements were in dispute.
[23] I am satisfied that the decision of the disciplinary court contains no reviewable error and I also find that there was no breach of section 31(1)(a) of the regulation or of the duty of fairness as it applies to such disciplinary proceedings.
[24] I also agree with the respondent that applying the criteria set out in Hendrickson v. Kent Institution (1990), 32 F.T.R 296, recently confirmed by the Federal Court of Appeal in Jean-Guy Pontbriand v. Canada (Procureur général) 2003 FCA 334 and Ross v. Canada 2003 FCA 296, there was no serious injustice done to Mr. Crews that would justify an intervention by this Court.
b) Assessment of the evidence
[25] Mr. Crews argues that pursuant to section 43 of the CCRA, the offence must be established beyond any reasonable doubt. The decision of the disciplinary court was patently unreasonable because the evidence could not support such a finding given that i) the orders to evacuate the courtyard were given in French only; ii) Mr. Crews did not understand French; iii) he testified that he went back to his cell as soon as he could; and iv) none of the security officers could specifically recall seeing him in the courtyard.
[26] Mr. Crews also submitted that the complaint was too vague for him to present a proper defence because the failure to comply with an order is a breach section 40(a) of CCRA as opposed to section 40(m) of CCRA. I disagree. In the circumstances of this case, it was clear that a failure to evacuate the courtyard when ordered to do so to enable the firemen to extinguish the fire, could constitute participation in an activity that is likely to jeopardize the security of the penitentiary pursuant to section 40(m) of CCRA. The relevant section of CCRA was expressly mentioned in the Inmate offence report and notification of charge and the description of the offence contained enough particulars to enable Mr. Crews to prepare his defence.
[27] It is trite law that the role of the Court is not to reweigh the evidence. I do not intend to do so. I will simply note that the evidence described under i) and ii) in paragraph 25 above was not relevant to the decision under review for it is clear from the reasons given by the disciplinary court that it relied mainly on the testimony of Mr. Simard, on his use of body language to convey his order and warning to the inmates and on other circumstantial evidence such as the proximity of Mr. Simard to the inmates.
[28] As to the other two issues described in iii) and iv) in paragraph 25 above, Mr. Crews admitted that he was in the courtyard and there is evidence that he could leave the courtyard when ordered to do so as the door was unlocked.
[29] In light of the evidence adduced before the disciplinary court, I am satisfied that it could reasonably reach its conclusion that Mr. Crews was guilty of the offence on the described in section 40(m) of CCRA. It was certainly not clearly irrational or patently unreasonable for the disciplinary court to make such a finding. There is, therefore, no reviewable error.
ORDER
THIS COURT ORDERS:
This Application for judicial review is dismissed.
"Johanne Gauthier"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1514-02
STYLE OF CAUSE: JERRY CREWS
demandeur
et
PROCUREUR GÉNÉRAL DU CANADA
défendeur
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 29, 2003
REASONS FOR ORDER AND ORDER :
THE HONOURABLE JUSTICE GAUTHIER
DATED: October 3, 2003
APPEARANCES:
Mr. Jérôme Parenteau FOR THE PLAINTIFF
Mr. Sébastien Gagné FOR THE DEFENDANT
SOLICITORS OF RECORD:
Bernier, Parenteau FOR THE PLAINTIFF
Drummondville, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario
Transcript of August 2, 2002, page 79.
The director of an institution appoints two persons to act as assessors. According to the Directive of the Commissioner No. 580, their duty is to help the president of the disciplinary court and provide him with all the information and documentation necessary to facilitate the hearing.
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