Grenier v. Canada (Attorney General), 2005 FC 497

Date: 20050415

Docket: T-1300-04

Citation: 2005 FC 497

BETWEEN:

                                                    JEAN-SÉBASTIEN GRENIER

                                                                                                                                            Applicant

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

LEMIEUX J.

[1]                Jean-Sébastien Grenier (the applicant) is an inmate at the Donnacona Institution, managed by Correctional Service Canada (CSC). He is asking this Court to set aside the decision dated June 10, 2004, by the Chair of a disciplinary court (the court) finding him guilty of an offence described under paragraph 40(k) of the Corrections and Conditional Release Act (the Act) specifically, for "tak[ing] an intoxicant into [his] body" on May 1, 2004.

[2]                The standard of proof that the court must observe is provided under subsection 43(3) of the Act, which provides that "[t]he 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]                I refer to the definition of "contraband" and "intoxicant" as well as the provisions of paragraphs 40(k) and subsection 43(3) of the Act:

[4]            The applicant submits that the court erred in applying subsection 43(3) of the Act. Applicant's counsel raise two questions:

(a)            in its analysis of the evidence, did the court properly weigh the inmate's testimony, in accordance with the principles of R. v . W. (D.), [1991] 1 S.C.R. 742? and

(b)           was the evidence as a whole sufficient to prove the charge beyond a reasonable doubt?

THE COURT'S DECISION

[5]                Immediately after hearing the submissions by counsel, the court delivered its decision from the bench. The court stated as follows: (applicant's record, page 93)

[TRANSLATION]

Therefore, considering all of the evidence filed before me, it bears repeating, considering all of the evidence, there, in fact last week Viviane Mathieu confirmed that inmate Grenier had alcohol on his breath and that he had red eyes, among other things. Ms. Cotton confirmed also, and Ms. Cotton is the nurse that proceeded with the examination of inmate Grenier, and Ms. Cotton confirms in fact that he had red eyes, a reddened face and alcohol on his breath. And in fact, Ms. Cotton confirmed that the breath smelling of alcohol could not have been the result of taking medication or of taking other . . . or using other drugs. So, in the circumstances, I consider that I do not have any reasonable doubt and I find you guilty.

[Emphasis added.]

[6]                In R. v . W. (D.), supra, the issue was whether, in the penal context, the trial judge's recharge to the jurors had left them with any doubt that if they had a reasonable doubt they must acquit.

[7]                In his recharge to the jury, the judge explained the evidence that could help them in determining credibility. On that point, the judge stated that the core issue to be determined by the jury was whether they believed the complainant or whether they believed the appellant.

[8]                In a case where the witnesses' credibility - the complainant's as well as the accused's - is important, Cory J. is of the opinion that the trial judge must advise the jury that the reasonable doubt rule applies. Further, Cory J. proposes instructions to that effect and states as follows:

¶ 26           It is clear that the trial judge erred in his recharge. It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown's evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused's evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.

¶ 27           In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. See R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, supra, at p. 357.

¶ 28           Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle.

¶ 29           Nonetheless, the failure to use such language is not fatal if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply: R. v. Thatcher,supra.

[Emphasis added.]

[9]                The Federal Court of Appeal, in Ayotte v . Canada (Attorney General), [2003] F.C.J. No. 1699, quashed a conviction by a disciplinary court established under the Act because that court and the motions judge had disregarded the principles set out in R. v . W. (D.), supra, on the grounds that these principles were not at all relevant in the prison setting.

[10]            Létourneau J.A. stated as follows at paragraphs 14, 16 and 22:

¶ 14           With respect, the principles laid down by the Supreme Court in R. v. W.(D), supra, are much more than just model directions for the jury in a criminal case. They are in fact a rule of law applicable to all judges and all tribunals called upon to assess and weigh the evidence when the law requires that they be satisfied beyond a reasonable doubt of the accused's guilt. This is the case here.

. . .

¶ 16           The decision-maker's obligation to be satisfied beyond a reasonable doubt of the guilt of the accused as well as the onus imposed on the complainant or on the prosecutor to provide such evidence are inextricably linked to the presumption of innocence: R. v. Lifchus, [1997] 3 S.C.R. 320, at paragraph 13. "It is one of the principal safeguards which seeks to ensure that no innocent person is convicted.": ibidem. The failure to understand and to properly apply this standard of proof irreparably prejudices the fairness of the trial or the hearing: ibidem.

. . .

¶ 22          Moreover, the chairperson of the disciplinary court misdirected himself on the law in this case where credibility was important because all of the evidence rested on the contradictory testimony of the two witnesses. Even if he did not believe the appellant's testimony, he had to acquit him if a reasonable doubt subsisted as to his guilt. Even if he did not believe the appellant's deposition, he should have examined it in the context of the evidence as a whole and the reasonable inferences that he could draw from each and every piece of evidence. But after that examination he had to acquit him if he was not convinced of his guilt beyond a reasonable doubt. A reading of the transcript of the arguments clearly indicates that the chairperson of the disciplinary court did not conduct this exercise. He was content to make an inappropriate equation between the appellant's guilt and his absence of credibility, thereby altering the standard of proof required by the Act to support a guilty verdict.

[Emphasis added.]

The standard of review

[11]            The two parties agree that Kelen J. accurately described the applicable standard of proof in this case in Forrest v . Canada (Attorney General), [2002] F.C.J. No. 713:

¶ 19 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.

[Emphasis added.]

[12]            I agree with the statements of Kelen J. in Forrest, supra, adding that this standard of review complies with the provisions of subsection 18.1(4) of the Federal Courts Act.

The evidence

(a)        Filed by Correctional Service Canada (CSC)

[13]            Viviane Mathieu, Correctional Officer at Donnacona, (the Correctional Officer) and Nurse Céline Cotton (the nurse) testified for CSC regarding the events of May 1, 2004.

(I)        Viviane Mathieu's testimony

[14]            A Correctional Officer with 21 years of experience at CSC, she was on duty the evening of May 1, 2004. She recognized Mr. Grenier among the inmates sitting at a table in the common room of a sector at Donnacona [translation] "in the middle of drinking something, and that seemed strange, and there was loud music and there was behaviour that seemed strange to us, compared to what usually goes on. We went to check it out" (applicant's record, page 33).

[15]            Among these inmates, four or five, including Mr. Grenier, were examined by the nurse. The Correctional Officer testified that during Mr. Grenier's examination [translation] "Mr. Grenier, him, there were clear indications that he had taken . . . had used something" (ibid.) and that he had "a red face, red eyes, he smelled of alcohol when we approached him" (ibid., page 32). According to her testimony, the common rooms were searched, there was no longer anything there but they [translation] "found empty containers that smelled, or glasses, things like that" (ibid.).

[16]            On cross-examination, the Correctional Officer acknowledged that four inmates had been examined by the nurse and that Mr. Grenier, when he left the common room, already gave off a persistent odour when she was near him (transcript, page 19). According to her, that odour was an odour of alcohol, while acknowledging that it was not up to her to decide whether it was alcohol or not (ibid., page 22). Moreover, what she considers to be the "smell of alcohol" is the odour of a prohibited liquid which is not sold at the canteen and which is not supplied by the institution (ibid., page 23).

[17]            To distinguish the smell of alcohol from a ketchup mixture and from the smell of vinegar, she relies on her experience. She adds that the immediate supervisors decided that it was not necessary to give the inmates urine tests (ibid., page 25).

(ii)        the testimony of Céline Cotton

[18]            Céline Cotton, a nurse with 12 years of experience, including three years at Donnacona, noted on May 1, 2004, at 10:00 p.m. in her written assessment report on Mr. Grenier:

[TRANSLATION]

Seen in sector at the request of security for an abnormal condition assessment, accompanied by the CX V. Mathieu, inmate met responds well to questions says that did not use, oriented 3 spheres, has red eyes, pupils dilated but reacting well; breath odour done resembles adulterated alcohol, . . . good cooperation, normal gait . . . Abnormal condition reported.

[19]            According to her, her examination of Mr. Grenier revealed that his symptoms were normal: blood pressure, orientation, gait, pupils; but he had red eyes and his breath odour resembled that of adulterated alcohol when she was standing two feet away from him to examine his pupils.

[20]            Mr. Grenier's counsel asked her to describe the odour. The nurse replied (ibid., pages 55 to 57) [translation] "it was an odour resembling adulterated alcohol . . . not really like beer, but it was stronger, it was a bit like fermentation. It's hard to describe to you, but it was more or less that".

[21]            "No" was her answer to whether it was smell that could have been confused with the smell of vinegar or ketchup, but as to whether the smell could be confused with spoiled juice, she stated that she could not say because she had never smelled spoiled juice before (ibid., page 57).

[22]            On cross-examination to the question regarding what degree of certainty was required for a professional to arrive at such a diagnosis (that Mr. Grenier smelled of alcohol), she replied [translation] "I was one hundred percent certain, there", but after a later question regarding the degree of error possible with her diagnosis, she stated "let's say ninety-nine, if you wish" and said that it was very unlikely that she was mistaken (ibid., page 57).

[23]            With respect to the red eyes, Ms. Cotton recognized that this sign could be caused by fatigue and adds, at page 58, [translation] "yes, it could also be caused by a product that we got in the eyes (inaudible)", and mentioned that on that night    [translation] "there were many people who were involved in the incident, and among the other individuals also assessed there were some who had similar symptoms or who were in a similar state".

[24]            She pointed out that the odour that she noted was    [translation] "an odour that we routinely recognize, an odour of fermented alcohol, it is distinctive, and then here, we would not have other odours under our noses, eh" (ibid., page 59).

[25]            She acknowledges that she had asked Mr. Grenier if he had used something that night and that Mr. Grenier told her that he had not used anything. To the question that was asked of her [translation] "you did not investigate further?" she replied [translation] "no, because we often get that answer"(ibid., page 60).

(b)        The testimony of Mr. Grenier

[26]            The only witness for the defence, Mr. Grenier contends that he never used any prohibited substance that night and that if he had used any, he would have pleaded guilty. He says that he has no history of using prohibited substances (ibid., page 70). He attributes his red eyes to fatigue since it was 10:00 p.m, he had been up since 8:00 a.m. and trained for two hours (ibid., page 72).

[27]            A sunburn during the day explains his red face, according to him.

[28]            The court asked him to explain [translation] "the fact that your breath smelled of alcohol?" He replied [translation] " I have no idea. Maybe the guy who went before me had breath that smelled of alcohol . . . If I had consumed alcohol, with the strong alcohol that there is here, because I have already had it, my speech would not have been normal, I would have been stumbling, that is for sure and certain" (ibid., page 72).

ANALYSIS

[29]            The notion of reasonable doubt is central to this debate between the parties. In R. v . Lifchus, [1997] 3 S.C.R. 320, Cory J. summarizes what that definition should and should not contain:

¶ 36 Perhaps a brief summary of what the definition should and should not contain may be helpful. It should be explained that:

. the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;

. the burden of proof rests on the prosecution throughout the trial and never shifts to the accused;

. a reasonable doubt is not a doubt based upon sympathy or prejudice;

. rather, it is based upon reason and common sense;

. it is logically connected to the evidence or absence of evidence;

. it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and

. more is required than proof that the accused is probably guilty -- a jury which concludes only that the accused is probably guilty must acquit.

¶ 37       On the other hand, certain references to the required standard of proof should be avoided. For example:

. describing the term "reasonable doubt" as an ordinary expression which has no special meaning in the criminal law context;

. inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives;

. equating proof "beyond a reasonable doubt" to proof "to a moral certainty";

. qualifying the word "doubt" with adjectives other than "reasonable", such as "serious", "substantial" or "haunting", which may mislead the jury; and

. instructing jurors that they may convict if they are "sure" that the accused is guilty, before providing them with a proper definition as to the meaning of the words "beyond a reasonable doubt".

[30]            As in R. v . W. (D.), supra, Cory J. in Lifchus, supra, set out guidelines for trial judges regarding the standard of proof of "beyond a reasonable doubt":

¶ 39       Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given along these lines:

The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty.

What does the expression "beyond a reasonable doubt" mean?

The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

[Emphasis added.]

[31]            With respect to R. v . W. (D.), supra, Cory J., in Lifchus, supra, states:

¶ 41 Further, it is possible that an error in the instructions as to the standard of proof may not constitute a reversible error. It was observed in R. v. W. (D.), [1991] 1 S.C.R. 742, at p. 758, that the verdict ought not be disturbed "if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply". On the other hand, if the charge as a whole gives rise to the reasonable likelihood that the jury misapprehended the standard of proof, then as a general rule the verdict will have to be set aside and a new trial directed.

[Emphasis added.]

[32]            R. v . W. (D.), supra, contemplates the application of reasonable doubt to the question of credibility. When credibility is important in a matter, R. v . W. (D.), supra, sanctions an instruction to the jury to the effect that in order to arrive at a verdict, they must decide whether they believe the defence evidence or the Crown's evidence because such an instruction precludes the possibility of a third alternative.

[33]            This third scenario results from the fact that the jury, without believing the accused and having considered the accused's testimony in the context of the evidence as a whole, could still have a reasonable doubt about his guilt.

[34]            Cory J. in R. v . W.D.S., [1994] 3 S.C.R. 521, added a third principle at page 533:

¶ 24 Obviously, it is not necessary to recite this formula word for word as some magic incantation. However, it is important that the essence of these instructions be given. . . . .

(See also R. v . Avetysan, [2000] 2 S.C.R. 745, and R. v . Rhee, [2001] 3 S.C.R. 364.)

[35]            It is worthwhile to mention the significant facts in the Supreme Court of Canada cases, supra.

[36]            In R. v . W. (D.), supra, the accused was found guilty of sexual assault after a trial where his credibility was pitted against that of the complainant who was his niece. The evidence corroborating the version of the facts in the complainant's testimony was weak. The accused denied that the alleged incidents occurred but there was nothing to corroborate his statements. According to Cory J., there were valid grounds for doubting the credibility of the two witnesses.

[37]            R. v . W.D.S., supra, was similar to the preceding case. Sexual assault charge, only two witnesses (the complainant and the accused), inconsistent testimony and no corroboration. The only evidence that the jury had to examine was the respective testimonies of the complainant and the accused.

[38]            In Avetysan, supra, the appellant and another man went through a joint trial for assault and extortion. At the trial, the testimony of the witness and the two accused was completely different regarding the events. Major J. determined that the charge, taken as a whole, gave rise to the likelihood that the jury misapprehended the meaning of "proof beyond a reasonable doubt". In the end, it was his opinion that a risk remained that the guilty verdict was based on a standard of proof other than the standard of evidence "beyond a reasonable doubt".

[39]            Major J. in Avetysan, supra, pointed out another defect: "The jury was not clearly told that the standard of proof was more than a balance of probabilities but less than absolute certainty". Further, "the jury was not told that it was required to acquit if it concluded only that the accused men were probably guilty".

[40]            In Rhee, supra, we find the same type of problem: testimony by the accused giving one version of the facts while his wife and his daughter testify in support of the version of the Crown, therefore the evidence is reinforced by certain circumstantial evidence.

CONCLUSIONS

[41]            The Federal Court of Appeal tells us in Ayotte, supra, that the chair of a disciplinary court constituted under the Act may err in law by misdirecting in a matter where all of the evidence rests on two conflicting testimonies. In such a case, the chair of the independent tribunal must draw on the principles set out in R. v . W. (D.), supra.

[42]            In my opinion, in this case, R. v . W. (D.) and Ayotte, supra, do not apply. In this matter, it is not simply a question of a test where all of the evidence was resting on two contradictory testimonies. The debate is not limited to whether the court should believe Mr. Grenier or the two witnesses of CSC.

[43]            CSC's evidence was much more extensive since it was based on the Mr. Grenier's physical symptoms as observed by two witnesses: the Correctional Officer and the nurse. The fact that other inmates examined by Ms. Cotton the same evening had the same symptoms is important corroborating evidence. Moreover, Ms. Mathieu testifies that she had observed several inmates sitting at a table    [translation]    "in the middle of drinking something".

[44]            However, applying the principles of R. v . W. (D.), I am of the opinion that the court did not misapprehend the applicable standard of proof and studied the third option raised in the case law.

[45]            Mr. Grenier testified that he did not consume anything on the evening of May 1, 2004. The court did not accept his testimony on that point but considered the evidence as a whole and had no reasonable doubt regarding the accused's guilt, that CSC had proved the alleged offence beyond a reasonable doubt. (See Rhee, supra, paragraph 9.)

[46]            In any case, I cannot find that the court misapprehended the relevant standard of proof.

[47]            Second, Mr. Grenier's counsel contends that the evidence filed was not, as a whole, sufficient to prove the charge beyond a reasonable doubt. She refers to this Court's decision in Bailey v . Canada (Attorney General), relying on the Supreme Court of Canada's decision in R. v . Charemski, [1998] 1 S.C.R. 679, to the effect that the Crown must adduce some evidence of culpability for every essential definitional element of the crime for which the Crown has the evidential burden.

[48]            Referring to paragraph 40(k) and the definition of the term "intoxicant", the court, states the applicant's counsel, must be convinced beyond a reasonable doubt that Mr. Grenier had on May 1, 2004, taken into his body, a substance which, by the terms of the Act "has the potential to impair or alter judgment, behaviour or the capacity to recognize reality or meet the ordinary demands of life". There was no evidence of one of the essential elements of the offence, i.e. evidence of impaired or altered behaviour, she submits.

[49]            I cannot agree with Mr. Grenier's arguments. There was credible evidence that Mr. Grenier had symptoms establishing that he had consumed illegal alcohol with other inmates - a substance which Mr. Grenier himself admits alters behaviour (applicant's record, page 71). Further, Ms. Cotton testified that the time after the consumption and the amount absorbed could influence the smell of alcohol on the breath and alter certain vital signs (applicant's record, pages 91 and 92).

[50]            I find that in this case, there is circumstantial evidence that meets the requirements of the case law. The court was convinced beyond a reasonable doubt that the accused's guilt was the only reasonable inference that could be drawn from the facts in evidence accepted by the court. Under the circumstances, I see no grounds for intervention.

[51]            For all of these reasons, this application for judicial review is dismissed but without costs given the importance of the points raised.

                                                                              "François Lemieux"             

                                                                                                   Judge                         

Ottawa, Ontario

April 15, 2005

Certified true translation

Kelley A. Harvey, BCL, LLB

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:                   T-1300-04

STYLE OF CAUSE: JEAN-SÉBASTIEN GRENIER v. AGC

PLACE OF HEARING:                                 Montréal

DATE OF HEARING:                                   January 12, 2005

REASONS FOR ORDER:                            Lemieux J.

DATE OF REASONS:                                   April 15, 2005

APPEARANCES:

Sylvie Théberge

Rita Francis                                                       FOR THE APPLICANT

Dominique Guimond                                          FOR THE RESPONDENT

SOLICITORS OF RECORD:

Sylvie Théberge

4 Notre-Dame E., #604

Montréal, Quebec

H2Y 1B7                                                          FOR THE APPLICANT

John H. Sims

Deputy Attorney General of Canada                              FOR THE RESPONDENT