Clarke v. Canada (Attorney General), 2004 FC 337

Date: 20040225

Docket: T-1911-03

Citation: 2004 FC 337

Ottawa, Ontario, this 25^th day of February, 2004

Present:           The Honourable Mr. Justice Simon Noël                               

BETWEEN:

                                                           CHRISTOPHER CLARKE

                                                                                                                                                       Applicant

                                                                                 and

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of the decision rendered by the Institutional Disciplinary Court of Collin's Bay on September 17^th, 2003 finding the Applicant guilty of refusing to follow an order.

FACTS

[2]                 On July 7, 2003 the Applicant, an inmate at Collins Bay Institution, was delivered a pass which requested him to attend at Admissions and Discharge (A & D) to provide a urine sample, as part of a random selection urinalysis program, pursuant to section 54(b) of the Corrections and Conditional Release Act, 1992 c. 20 ("CCRA"). The Applicant accepted the pass and informed the officer that he agreed to provide the sample.

[3]                 The pass delivered to the Applicant outlined the consequences that would result in failing to honour it, but the Applicant decided nonetheless to continue sleeping even though his presence was requested at A & D 47 minutes later. The Applicant fell asleep and did not attend. He was charged and convicted before the Independent Chairperson with the disciplinary offence of disobeying a justifiable order pursuant to section 40(a) of the CCRA and fined $15.

SUBMISSIONS

[4]                 The Applicant submits that the Correctional Service of Canada (CSC) incorrectly charged him with "disobeying a justifiable order" instead of "refusing or failing to provide a urine sample" under section 40(1) of the CCRA. The Applicant further submits that section 40(1) provides certain additional procedural protections and that charging him under section 40(a) was done in order to avoid these procedural protections. The Applicant also submits that the CSC does not possess the necessary authority to order a urine sample and argues that, by falling asleep, he did not have the requisite mens rea to commit the disciplinary offence of disobeying a justifiable order.

[5]                 The Respondent submits that the Independent Chairperson's decision is reasonable, that no procedural protections were subverted and that, once the Applicant agreed to attend at A & D, the onus was on him to attend as ordered. The Respondent also submits that the charge under section 40(a) is justified because the Applicant's failure to attend renders him guilty of the disciplinary offence of disobeying a justifiable order . The Respondent further submits that CSC staff members have the authority to order a urine sample when one of the situations in section 54(a), (b) or (c) applies.    The Respondent argues that section 54(b) applies to the case at bar.

STANDARD OF REVIEW

[6]                 As submitted by the Respondent, the applicable standard of review is as was decided in Richer v. Saskatchewan Penitentiary, [2003] F.C.J. No 1134 (F.C.) at par. 19:

[...] this Court will not interfere on a question of fact, or a question of 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.

ANALYSIS

[7]                 I have carefully reviewed both the written and oral submissions before the Court and have determined that the Applicant agreed to provide the sample, but fell asleep before doing so despite the Order to attend the Institution's A & D 47 minutes later. I have also noted that the Inmate Offence Report and Notification of Charge includes a proper description of the incident and refers specifically to a section 40(a) CCRA offence. The Applicant by agreeing to provide the urine sample could not be accused of not wanting to give the said sample. Therefore, the charge of disobeying a justifiable order was warranted under the circumstances.

[8]                 I am of the opinion that the Institutional Disciplinary Court's finding in this matter was reasonable and can therefore only conclude that the Applicant, by making a choice to sleep even though he knew that he had to be present at A & D to provide a urine sample, must assume the consequences of his decision.

ORDER

THIS COURT ORDERS THAT:

-           This application for judicial review is dismissed with costs.

"Simon Noël"

            Judge

                                       FEDERAL COURT

                                       TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

DOCKET:                                       T-1911-03

STYLE OF CAUSE:                      Christopher Clarke vs. The Attorney General of Canada

PLACE OF HEARING:                 Ottawa, Ontario

DATE OF HEARING:                   February 18^th, 2004

REASONS FOR ORDER OF       The Honourable Mr. Justice Simon Noël

DATED:                                           February 25^th, 2004

APPEARANCES:

Mr. John DillonFOR THE APPLICANT

Mr. Alexandre KaufmanFOR THE RESPONDENT

SOLICITORS ON THE RECORD:

JOHN DILLONFOR THE APPLICANT

Kingston (Ontario)

DEPARTMENT OF JUSTICEFOR THE RESPONDENT

Ottawa (Ontario)