Date: 20030805
Docket: T-1462-02
Citation: 2003 FC 952
Vancouver, British Columbia, Tuesday, the 5th day of August, 2003
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
TYRONE BORGLUND
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
Docket: T-1463-02
BETWEEN:
SHANE PANGOWISH
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDERS AND ORDERS
[1] On the same day, being August 7, 2002, at Kent Institution, an Independent Chairperson convicted each Applicant in the present applications of the disciplinary offence of possession of contraband contrary to s.40(i) of the Corrections and Conditional Release Act. The issue is whether the decision of the Chairperson in each case was made in error of law.
[2] It is agreed that for the disciplinary offence of possession, the criminal standard of proof applies in making a determination; that is, proof must exist beyond a reasonable doubt that an inmate had knowledge and control of contraband before a finding of guilt can be made.
[3] In each of the present cases, the inmates concerned admit to control of articles containing contraband but deny knowledge of the contraband itself. Mr. Borglund admits to being in control of a toothpaste box containing a 7.5 inch homemade ice pick. By way of explanation, Mr. Borglund testified that the toothpaste box was left in a cell he previously occupied by the person with whom he had double bunked, and that he moved it into his subsequently occupied single bunk cell without checking its contents. Accordingly, he admits to control of the toothpaste box but denies knowledge of its contents.
[4] In Mr. Pangowish 's case, a search of his cell resulted in the finding of a yellow felt marker containing a hypodermic kit. Mr. Pangowish admits control over the marker but denies knowledge of the kit contained therein. In testimony, he gave the explanation that the marker was left in his cell by its previous occupant.
[5] The Chairperson in deciding the guilt of each of Mr. Borglund and Mr. Pangowish made no clear finding of credibility with respect to the explanation each gave. However, clear findings of law were made in each case. In Mr. Borglund's case, the following statement of the Chairperson appears at page 5 of the transcript:
Alright, well I'll tell you what, for me it's not a question of whether I believe you or not, that's not the issue, the issue for me is simply whether or not it was in your cell and whether it was, whether or not you were in there alone and whether or not you were in there, you know after they asked you to leave the cell they went in and whether or not they found it, that's the issue for me. Like if the cell door had been opened and somebody had access to it I might, I might think that maybe it's possible that they put it in there if you were inside the cell you came out of the cell they go in and they find it, that's enough for me. I don't got to go back into your whole history, for me the issue is simply whether it's in your cell at a particular point in time, alright and the only thing I got to ask myself is has anybody else had access to it after they asked you to move. If you were in a double bunk zone it might have been different, you were in a single bunk zone, so I'm rendering a finding of guilty and you don't, I don't think I've seen you before right?
In Mr. Pangowish's case, the following statement of the Chairperson appears at page 8 of the transcript:
Mr. Pangowish I'm trying my best here but I can't, without [inaudible] I'll tell you why, you it's not according whether or not you admitted to the hype kit or the pen you admitted to one of the two and that is sufficient for me to find I think possession and that the charge possess of a [inaudible] possession of contraband, is the charge.
[6] In my opinion, it was incumbent upon the Chairperson to first make a finding with respect to the credibility of each Applicant, and then to decide whether, having made such a finding, all the evidence proved guilt beyond a reasonable doubt; to find guilt it was incumbent on the Chairperson to clearly determine whether the evidence supported a positive finding on each of the two factors essential for a conviction of possession, being knowledge of the contraband and control of the contraband.
[7] In my opinion, the two passages quoted above exhibit an error in law in that the essential requirement of making a finding of knowledge was not accomplished. As a result, I find that both decisions were made in error of law.
ORDER
T-1462-02
For the reasons provided, the decision under review is set aside.
(Sgd.) "Douglas R. Campbell"
Judge
ORDER
T-1463-02
For the reasons provided, the decision under review is set aside.
(Sgd.) "Douglas R. Campbell"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1462-02
STYLE OF CAUSE: TYRONE BORGLUND v. HMQ
DOCKET: T-1463-02
STYLE OF CAUSE: SHANE PANGOWISH v. HMQ
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: August 5, 2003
REASONS FOR ORDERS AND ORDERS: Campbell J.
DATED: August 5, 2003
APPEARANCES:
Ms. Donna M. Turko FOR APPLICANTS
Mr. Ward Bansley FOR RESPONDENT
Ms. Mary Ann Barker
SOLICITORS OF RECORD:
Donna M. Turko FOR APPLICANTS
Barrister & Solicitor
Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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