Forrest v. Canada (Attorney General), 2002 FCT 539

                                                                                                                                            Date: 20020509

                                                                                                                                       Docket: T-2150-98

                                                                                                                                                        T-448-99

                                                                                                               Neutral Citation: 2002 FCT 539

BETWEEN:

                                                                 IRVINE FORREST

                                                                                                                                                      Applicant,

                                                                              - and -

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                  Respondent.

                                                            REASONS FOR ORDER

KELEN J.:

[1]         These applications for judicial review are with respect to two decisions of the Independent Chairperson of the Kingston Penitentiary Disciplinary Court, Mr. Jacques J. Ménard.

[2]         In the first application, Court File No. T-2150-98, the applicant seeks review of a decision dated October 13, 1998 wherein the applicant was found guilty of a disciplinary offence contrary to subsection 40(l) of the Corrections and Conditional Release Act, S.C. 1992, c.20 ("the Act") for refusing to provide a urine sample and fined $40.00.

[3]         In the second application, Court File No. T-448-99, the applicant seeks review of a decision dated December 22, 1998 wherein the applicant was found guilty of two disciplinary offences contrary to subsection 40(a) and 40(m) of the Act for disobeying a justifiable order of a staff member and creating a disturbance likely to jeopardize the security of the penitentiary, and fined $30.00.

FACTS

First Application - Refusal to Provide a Urine Sample

[4]         At all material times the applicant was an inmate at the Kingston Penitentiary in Kingston, Ontario. In accordance with subsection 54 (b) of the Act, the Kingston Penitentiary requires inmates submit to urinalysis as part of a prescribed random selection urinalysis program, the purpose of which is to detect and prevent drug use by the inmates. Each month approximately six percent of the inmate population is required to provide a urinalysis sample based on a random list generated by a computer. In September, 1998 the applicant was one of the inmates on the computer generated random list of inmates selected for urinalysis. Subsection 40(l) provides that it is a disciplinary offence to refuse to provide a urine sample when demanded pursuant to section 54.

[5]         On September 4, 1998 at 8:45 a.m., the applicant was provided with a written demand by a correctional officer, the regular urinalysis collector, to provide a urine sample as part of the prescribed random selection urinalysis program under section 54(b) of the Act.

[6]         The applicant disagreed with the length of the interval since his last urine sample. The applicant demanded to speak to a supervisor of the correctional officer. The correctional officer informed him that he did not have the right to refuse to provide a urine sample and that he did not have the right the make any representations. According to the correctional officer the applicant

stated that if he was not allowed to speak to someone, then he would refuse to provide the urine sample. The applicant was advised by the correctional officer that he would be charged for refusing to provide a urine sample. The applicant maintained his position. Accordingly, the correctional officer charged the applicant and filed the Inmate Offense Report and Notification of the Charge under subsection 40(l) of the Act.

[7]         When the applicant refused to provide the sample, two other correctional officers and the applicant became involved in an altercation where voices were raised and fingers pointed. At the disciplinary hearing the applicant alleged that these two other correctional officers were aggressive and abusive, and for this reason the applicant did not provide the sample. The applicant filed a complaint against the alleged aggressive and abusive conduct of the two correctional officers, which complaint is the subject of a separate grievance procedure. The Disciplinary Court ruled that the alleged aggression and abuse are not relevant to the applicant's refusal to provide a urine sample, or whether the applicant is guilty of the disciplinary offence under subsection 40(l) of the Act.

[8]         If the applicant had agreed to provide a urine sample, the correctional officer, in accordance with normal practice, would have escorted the applicant to a special room where the applicant would provide the urine sample in privacy. There is no allegation by the applicant that he was required to provide a urine sample in the presence of the other correctional officers or other inmates.

[9]         The disciplinary hearing commenced on September 22, 1998, and the 13-page transcript of that hearing is before the Court. At that hearing the matter was adjourned until October 13^th so that the applicant could make arrangements for witnesses. However, the Disciplinary Court advised the applicant that on a charge for refusing to provide a urine sample, the Court will not require the attendance of every correctional officer who witnessed the incident. The hearing resumed on October 13^th, and the 52-page transcript of that hearing is before the Court. At the hearing, the applicant was found guilty of the disciplinary offence in question and fined $40.00.

FACTS

Second Application - Hearing Conducted in Absence of the Applicant

[10] The second application arises from an incident at the hospital facility of the penitentiary. On August 7, 1998 at 8:45 a.m. the applicant arrived at the hospital facility to visit with another inmate. A correctional officer advised the applicant that he would be searched before entering the hospital. As soon as the correctional officer started "patting him down" the applicant yelled that the correctional officer was "feeling him up". The applicant has repeatedly made allegations that the correctional officer was a homosexual and that his searches were for sexual purposes. At that point the correctional officer ordered the applicant to a holding cell next to the office until another correctional officer could be located to complete the search. The applicant refused on three occasions. According to the correctional officer, the applicant became aggressive. Other correctional officers intervened at which point the applicant began yelling that the officer "is going to kill him".

[11] The applicant was charged with three disciplinary offences:

· disobeying a justifiable order contrary to subsection 40(a) of the Act;

·    fighting with or assaulting or threatening to assault contrary to subsection 40(h) of the Act;      and,

· creating or participating in a disturbance or other activity that is likely to jeopardize the       security of the penitentiary contrary to subsection 40(m) of the Act.

[12] A hearing before the Disciplinary Court on these charges took place on September 29, 1998. At the request of the applicant, the hearing was adjourned first to October 20, 1998, then to November 10, 1998, and then to December 22, 1998. The applicant did not appear on December 22, 1998. The Independent Chairperson directed a correctional officer to locate the applicant and advise him that the Disciplinary Court was ready to conduct the hearing. The applicant was involved in a visit from his family for the afternoon and stated that he would not be attending the Disciplinary

Court. The Independent Chairperson then directed the correctional officer to advise the applicant

that if he did not attend the hearing, the hearing would proceed in his absence. The applicant refused once again, and stated that the Disciplinary Court had no authority to proceed in his absence.

[13] Since the hearing of the disciplinary charges had been delayed to accommodate the applicant and since the witnesses requested by the applicant were at the Disciplinary Court, the Independent Chairperson proceeded with the hearing in the absence of the applicant, and made a ruling that the applicant was voluntarily absent. Under section 43 of the Act, a disciplinary hearing can proceed without the applicant if the applicant is voluntarily absent.

[14] The hearing concluded and the Disciplinary Court found the applicant guilty of the two disciplinary offences under subsections 40(a) and (m), but not guilty of the disciplinary offence under subsection 40(h). The applicant was fined $30.00 and sentenced to five days of segregated confinement, which sentence was suspended for 90 days, and which the applicant did not serve.

RELEVANT LEGISLATION

[15] The portions of the Corrections and Conditional Release Act, S.C. 1992, c. 20 relevant to these matters are as follows:

Disciplinary offences

     40. An inmate commits a disciplinary offence who

(a) disobeys a justifiable order of a staff member;

[...]

(h) fights with, assaults or threatens to assault another person;

[...]

(l) fails or refuses to provide a urine sample when demanded pursuant to section 54 or 55;

(m) creates or participates in

(i) a disturbance, or

(ii) any other activity

that is likely to jeopardize the security of the penitentiary;

Infractions disciplinaires

40. Est coupable d'une infraction disciplinaire le détenu qui:

a) désobéit à l'ordre légitime d'un agent;

[...]

h) se livre ou menace de se livrer à des voies de fait ou prend part à un combat;

[...]

l) refuse ou omet de fournir l'échantillon d'urine qui peut être exigé au titre des articles 54 ou 55;

m) crée des troubles ou toute autre situation susceptible de mettre en danger la sécurité du pénitencier, ou y participe;

Informal resolution

     41. (1) Where a staff member believes on reasonable grounds that an inmate has committed or is committing a disciplinary offence, the staff member shall take all reasonable steps to resolve the matter informally, where possible.

Charge may be issued

     (2) Where an informal resolution is not achieved, the institutional head may, depending on the seriousness of the alleged conduct and any aggravating or mitigating factors, issue a charge of a minor disciplinary offence or a serious disciplinary offence.

Notice of charge

    42. An inmate charged with a disciplinary offence shall be given a written notice of the charge in accordance with the regulations, and the notice must state whether the charge is minor or serious.

Hearing

   43. (1) A charge of a disciplinary offence shall be dealt with in accordance with the prescribed procedure, including a hearing conducted in the prescribed manner.

Presence of inmate

   (2) A hearing mentioned in subsection (1) shall be conducted with the inmate present unless

(a) the inmate is voluntarily absent;

(b) the person conducting the hearing believes on reasonable grounds that the inmate's presence would jeopardize the safety of any person present at the hearing; or

(c) the inmate seriously disrupts the hearing.

Decision

   (3) The 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.

Tentative de règlement informel

     41. (1) L'agent qui croit, pour des motifs raisonnables, qu'un détenu commet ou a commis une infraction disciplinaire doit, si les circonstances le permettent, prendre toutes les mesures utiles afin de régler la question de façon informelle.

Accusation

   (2) À défaut de règlement informel, le directeur peut porter une accusation d'infraction disciplinaire mineure ou grave, selon la gravité de la faute et l'existence de circonstances atténuantes ou aggravantes.

Avis d'accusation

    42. Le détenu accusé se voit remettre, conformément aux règlements, un avis d'accusation qui mentionne s'il s'agit d'une infraction disciplinaire mineure ou grave.

Audition

43. (1) L'accusation d'infraction disciplinaire est instruite conformément à la procédure réglementaire et doit notamment faire l'objet d'une audition conforme aux règlements.

Présence du détenu

   (2) L'audition a lieu en présence du détenu sauf dans les cas suivants:

a) celui-ci décide de ne pas y assister;

b) la personne chargée de l'audition croit, pour des motifs raisonnables, que sa présence mettrait en danger la sécurité de quiconque y assiste;

c)celui-ci en perturbe gravement le déroulement.

Déclaration de culpabilité

   (3) La personne chargée de l'audition ne peut prononcer la culpabilité que si elle est convaincue hors de tout doute raisonnable, sur la foi de la preuve présentée, que le détenu a bien commis l'infraction reprochée.

Sanctions disciplinaires

    44. (1) Le détenu déclarécoupable d'une infraction disciplinaire est, conformément aux règlements pris en vertu des alinéas 96i) et j), passible d'une ou de plusieurs des peines suivantes:

a) avertissement ou réprimande;

Disciplinary sanctions

   44. (1) An inmate who is found guilty of a disciplinary offence is liable, in accordance with the regulations made under paragraphs 96(i) and (j), to one or more of the following:

(a) a warning or reprimand;

(b) a loss of privileges;

(c) an order to make restitution;

(d) a fine;

(e) performance of extra duties; and

(f) in the case of a serious disciplinary offence, segregation from other inmates for a maximum of thirty days.

[...]

Searches of Inmates

Routine non-intrusive or frisk searches

   47. (1) A staff member may conduct routine non-intrusive searches or routine frisk searches of inmates, without individualized suspicion, in the prescribed circumstances, which circumstances must be limited to what is reasonably required for security purposes.

[...]

Urinalysis

     54. Subject to section 56 and subsection 57(1), a staff member may demand that an inmate submit to urinalysis

(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;

(b) as part of a prescribed random selection urinalysis program, conducted without individualized grounds on a periodic basis and in accordance with any Commissioner's Directives that the regulations may provide for; or

(c) where urinalysis is a prescribed

requirement for participation in

(i) a prescribed program or activity involving contact with the community, or

b) perte de privilèges;

c) ordre de restitution;

d) amende;

e) travaux supplémentaires;

f) isolement pour un maximum de trente jours, dans le cas d'une infraction disciplinaire grave.

[...]

Fouilles discrètes ou par palpation

    47. (1) Dans les cas prévus par règlement et justifiés par des raisons de sécurité, l'agent peut, sans soupçon précis, procéder à des fouilles discrètes ou par palpation sur des détenus.

[...]   

Analyses d'urine

   54. L'agent peut obliger un détenu à lui fournir un échantillon d'urine dans l'un ou l'autre des cas suivants:

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;

b) il le fait dans le cadre d'un programme réglementaire de contrôle au hasard, effectué sans soupçon précis, périodiquement et, selon le cas, conformément aux directives réglementaires du commissaire;

c) l'analyse d'urine est une condition - imposée par règlement - de participation à un programme ou une activité réglementaire de désintoxication ou impliquant des contacts avec la collectivité.

Analyse d'urine

    55. L'agent ou toute autre personne autorisée par le Service peut obliger un délinquant à lui fournir un échantillon d'urine:

a) soit sur-le-champ lorsque la permission de sortir, le placement à l'extérieur ou la libération conditionnelle ou d'office sont assortis de conditions interdisant la consommation de drogues ou d'alcool et que l'agent ou la personne a des motifs raisonnables de soupçonner la contravention à une de ces conditions;

b) soit régulièrement lorsque la permission de sortir, le placement à l'extérieur ou la

(ii) a prescribed substance abuse treatment program.

Urinalysis

     55. Subject to section 56 and subsection 57(2), a staff member, or any other person so authorized by the Service, may demand that an offender submit to urinalysis

(a) at once, where the staff member or other authorized person has reasonable grounds to suspect that the offender has breached any condition of a temporary absence, work release, parole or statutory release that requires abstention from alcohol or drugs, in order to monitor the offender's compliance with that condition; or

(b) at regular intervals, in order to monitor the offender's compliance with any condition of a temporary absence, work release, parole or statutory release that requires abstention from alcohol or drugs.

Information requirements

    56. Where a demand is made of an offender to submit to urinalysis pursuant to section 54 or 55, the person making the demand shall forthwith inform the offender of the basis of the demand and the consequences of non-compliance.

Right to make representations

    57. (1) 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.

Idem

(2) An offender who is required to submit to urinalysis at regular intervals pursuant to section 55 shall be given reasonable opportunities to make representations to the prescribed official in relation to the length of the intervals.

libération conditionnelle ou d'office sont assortis de conditions interdisant la consommation de drogues ou d'alcool.

Avis au délinquant

   56. La prise d'échantillon d'urine fait obligatoirement l'objet d'un avis à l'intéressé la justifiant et exposant les conséquences éventuelles d'un refus.

Droit de présenter des observations

     57. (1) Lorsque la prise est faite au titre de l'alinéa 54a), l'intéressé doit, auparavant, avoir la possibilité de présenter ses observations au directeur.

Idem

(2) De même, dans les cas où il est tenu de fournir régulièrement un échantillon d'urine en application de l'article 55, il doit avoir la possibilité de présenter à la personne désignée par règlement des observations au sujet de l'espacement des prises.

STANDARD OF REVIEW

[16] The nature of the standard of review for a disciplinary court in a penitentiary was set out in Canada (Correctional Services) v. Plante, [1995] F.C.J. No. 1509 (F.C.T.D.) per Pinard J.:

¶ ¶ 6 The nature and functions of the disciplinary court in question were well summarized by my colleague Denault J. in Hendrickson v. Kent Institution Disciplinary Court (Independent Chairperson) (1990), 32 F.T.R. 296, at 298 and 299:

The principles governing the penitentiary discipline are to be found in Martineau (No. 1) (supra) and Martineau v. Matsqui Institution Disciplinary Board (1979), 30 N.R. 119;50 C.C.C. (2d) 353 (S.C.C.); Blanchard v. Disciplinary Board of Millhaven Institution (1982), 69 C.C.C. (2d) 171 (F.C.T.D.); Howard v. Stony Mountain Institution Inmate Disciplinary Court (1985), 57 N.R. 280; 19 C.C.C. (3d) 195 (F.C.A.), and may be summarized as follows:

• 1.                    A hearing conducted by an independent chairperson of the disciplinary court of an institution is an administrative proceeding and is neither judicial nor quasi-judicial in character.
• 2.                    Except to the extent there are statutory provisions or regulations having the force of law to the contrary, there is no requirement to conform to any particular procedure or to abide by the rules of evidence generally applicable to judicial or quasi-judicial tribunals or adversary proceedings.

•          The hearing is not to be conducted as an adversary proceeding but as an inquisitorial one and there is no duty on the person responsible for conducting the hearing to explore every conceivable defence, although there is a duty to conduct a full and fair inquiry or, in other words, examine both sides of the question.
• 5.                    It is not up to this court to review the evidence as a court might do in a case of a judicial tribunal or a review of a decision of a quasi-judicial tribunal, but merely to consider whether there has in fact been a breach of the general duty to act fairly.

[17] In situations such as the cases at bar, a standard of review of patent unreasonableness was determined to be appropriate by DubéJ. in Boudreau v. Canada (Attorney General), [2000] F.C.J. No. 2016 (F.C.T.D.):

¶ ¶ 6 The standard of review in the context of decisions made by the Correctional Service of Canada officials is, on the balance of probabilities, whether the decision was patently unreasonable [See: Fitzgerald v. Tron, [1994] B.C.J. No. 1534, Vancouver Registry No. CC931084, July 7, 1994 (B.C.S.C.); McLarty v. Canada (1997), 133 F.T.R. 11 (T.D.).] [emphasis added]

[18]       It is established that this Court accords curial respect for disciplinary decisions in a correctional environment with the understanding that the Disciplinary Court in a penitentiary is set up as an internal investigative or inquisitorial process. Gibson J. in Beaudoin v. William Head Institute 1997 F.C.J. No. 1663 (F.C.T.D.) at paragraph 7 referred with approval to a decision of Joyal J. in Barnaby v. Canada, [1995] F.C.J. No. 1541 (F.C.T.D.):

[...] Curial respect for an administrative Tribunal's disciplinary decisions in a correctional environment is as high as for any other Tribunal.

[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.

ANALYSIS - First Application

[20]       This case involves the law with respect to urinalysis in penal institutions. It is distinct from much of the jurisprudence of this Court involving an inmate's obligation to submit to urinalysis, in that this case does not raise any issue with respect to the inmate's expectation of privacy in a federal correctional institution. There is no allegation by the applicant that he was required to provide a urine sample in the presence of the other correctional officers or other inmates.

[21]       Parliament has enacted in section 54 of the Act a variety of circumstances when an inmate is legally required to provide a urine sample upon demand. One situation, under section 54(b) of the Act, involves demands upon a random basis. A computer generates a random selection of inmates at each institution, and these inmates are required to submit a urine sample. The objective is to detect, prevent and deter drug use by inmates at correctional institutions. The inmate has no right to refuse when selected on a random basis. Refusal to provide a urine sample when demanded constitutes a specific disciplinary offence under subsection 40(l) of the Act.

[22]       This is distinct from instances contemplated under section 54(a) of the Act where inmates are requested to provide a urine sample because the institution has reasonable grounds to suspect that the inmate has used a drug. In such situations, the inmate has the right to make representations before being required to submit the urine sample. That right to make representations is contained in section 57 of the Act.

[23]       In this case, the applicant demanded the right to make representations before providing the urine sample. The applicant was told that he had been selected on a random basis and that he had no right to make representations before submitting the urine sample. Misapprehending his rights, the applicant stated that he would not provide the urine sample until he had made representations. The refusal led to the disciplinary charge which is the subject of this case.

[24]       The applicant submits that he did not refuse to provide the urine sample. The Disciplinary Court found otherwise and there is ample evidence upon which the Disciplinary Court could make that finding. Indeed, the correctional officer, in the Inmate Offence Report and Notification of Charge, described the offence as follows:

"He (the applicant) stated that if he could not speak to someone then he would refuse."    

[25]       The respondent submits that the applicant had no right under the Act to object to the frequency of urinalysis demands made under a random selection process, the manner in which the sample was demanded, or to refuse the sample upon demand.

[26]       Addressing the arguments of the applicant, I find that where a random urinalysis sample has been demanded under subsection 54(b) of the Act, no right to address a superior institution officer exists. Accordingly, I am satisfied that the Disciplinary Court came to a reasonable finding that the applicant did refuse to provide the urine sample contrary to subsection 54(b) of the Act.

[27]       The applicant alleges that the correctional officer failed to take reasonable steps to resolve the matter informally before charging him with a disciplinary offence in accordance with the legal requirements of section 41 of the Act. The Disciplinary Court held that the applicant was advised that he would be charged if he refused to provide the sample and that this constituted an attempt to informally resolve the matter.

[28]       Subsection 40(1) of the Act establishes informal resolution as a condition precedent before the Disciplinary Court has jurisdiction to proceed with the hearing of the charge. In this case, I agree that the reasonable step to resolve the matter informally is to advise the inmate that he has a legal obligation to provide the urine sample, that he does not have any legal right to make representations or to speak to a superior, and that if he does not provide the sample he will be charged with a disciplinary offence. This was done. The Disciplinary Court reasonably decided that the correctional officer fulfilled his legal obligation to take all reasonable steps to resolve the matter informally before charging the inmate.

[29]       The applicant alleges that the disciplinary hearing was not conducted fairly and in accordance with the principles of natural justice. After the first hearing, the Disciplinary Court adjourned so that the applicant could prepare his case and call his witnesses. When the hearing resumed on October 13^th, 1998, the hearing lasted for 52-pages of transcript. At that time, the applicant had full knowledge of the case he had to meet, had an opportunity to cross-examine the correctional officer who demanded the urine sample, and had the opportunity to make a full defence.

[30]       The applicant contends that he did not have a fair hearing because he was not able to introduce evidence about the aggressive and abusive conduct of correctional officers at the time of the incident and on previous occasions. The applicant submits that the demand for a urine sample was abusive and humiliating because: he had been asked for a sample two months previous; he was asked in front of other individuals; and he was denied the opportunity to speak with a superior officer.

[31]       I am of the view that the Disciplinary Court correctly ruled that the introduction of evidence alleging animosity toward the applicant is not relevant as to whether the applicant refused to provide the urine sample on September 4^th. While the applicant is aggrieved that he was not able to introduce evidence from the other two correctional officers to support his allegations of their misconduct, that evidence is not relevant as to whether the applicant refused to provide the urine sample.

[32]       I am also satisfied, from reviewing the transcript, that the Disciplinary Court acted without bias in the conduct of the hearing. The Independent Chairperson of the Disciplinary Court has the duty to conduct the disciplinary hearing in a fair and expeditious manner. Restricting the hearing to relevant evidence is an important and necessary part of the Chair's job. The fact that the relevancy rulings were contrary to the wishes of the applicant does not constitute bias. An informed person, viewing the matter realistically and practically would not sense any apprehension of bias.

[33] The applicant alleges breaches of sections 7, 11 and 15 of the Canadian Charter of Rights and Freedoms. The relevant sections read as follows:

[34] Since I have found that the applicant was given a fair hearing in accordance with the rules of natural justice, there is no breach of the applicant's Charter rights under section 7.

[35] The Supreme Court of Canada has held that section 11 of the Charter does not apply to disciplinary proceedings within the correctional institutions. Madame Justice McLachlin (as she then was) held in Charter R. v. Shubley, [1990] 1 S.C.R. 3 (S.C.C.) at page 23 that section 11 of the Charter only applies to criminal and penal matters and not to prison discipline proceedings. She held that prison discipline proceedings "must be expeditious and informal if the crises that inevitably occur in centres of incarceration are to be avoided".

[36] The applicant alleges that his rights under section 15 of the Charter were violated because the Disciplinary Board was less courteous to the applicant during the hearing than to the correctional officer. I am satisfied that there is no evidence of discrimination under section 15 of the Charter. Rather, the applicant is aggrieved because the Disciplinary Court denied the applicant the right to call evidence regarding past allegations of abusive and aggressive behaviour by the correctional officers. Such a ruling does not support a Charter case under section 15.

[37] There was no challenge based on section 8 of the Charter since the applicant refused to provide the urine sample without reference as to whether the requested urine sample was a wrongful invasion of the applicant's right to privacy. However, it is noteworthy that in Royer v. Canada (Attorney General), [2001] F.C.J. No. 1869, 2001 F.C.T. 1359 (F.C.T.D.), Rouleau J. held at paragraph 25 that the random selection process does not contravene section 8 of the Charter since it is authorized by law, and the law itself is reasonable and the proposed manner in which the search was to be carried out is reasonable.

[38]       The applicant had no basis to refuse to provide the urine sample as required under subsection 54(b) of the Act. I have reviewed the record to determine whether the applicant had a legal basis for alleging that he did not have a fair hearing, that his Charter rights had been violated, and that he had a legal basis for refusing to cooperate. I conclude that the applicant had no basis for this application. For these reasons, the first application for judicial review is dismissed.

ANALYSIS - Second Application

(A)              Hearing Conducted in the Absence of the Applicant

[39]       The main issue in the second application is whether the Disciplinary Court breached the rules of natural justice and the duty to act fairly by proceeding with the disciplinary hearing in the absence of the applicant. The evidence from the Independent Chairperson of the Disciplinary Court, from

the documents, and from an affidavit of a correctional officer, is that the applicant had notice of the Disciplinary Court proceeding, and elected not to attend, even in the face of specific notice from the Independent Chairperson that the disciplinary proceeding would proceed in the absence of the applicant. The evidence establishes that the Disciplinary Court hearing was adjourned initially at the request of the applicant, and that the scheduling arrangements for the resumption of the hearing were made in consultation with the applicant to ensure that the necessary witnesses would be present.

[40]       The applicant denies that he had notice of the hearing. The applicant's denial is directly contrary to the evidence from the Independent Chairperson of the Disciplinary Court and the affidavit of a correctional officer. I have no hesitation in accepting as true, the evidence of the Independent Chairperson and the affidavit of the correctional officer. Accordingly, it is my finding that the applicant had full and proper notice of the hearing.

[41]       Disciplinary proceedings, and most particularly one that has been adjourned on previous occasions, must take place in an orderly and timely fashion for the efficient and proper administration of disciplinary justice in a correctional institution. In this case, the witnesses requested by the applicant had been brought before the Disciplinary Court, but the applicant chose not to attend because he was visiting with his family. The Act specifically provides in subparagraph 43(2)(a) that the Disciplinary Court hearing can be conducted when the inmate is voluntarily absent.

[42]       In the Reasons for Decision of the Independent Chairperson of the Kingston Penitentiary Disciplinary Court at page 2 held:

In my opinion Mr. Forrest was voluntarily absent. I elected to proceed in his absence and to take [the officer's] evidence (the correctional officer who filed the disciplinary charges). In so doing I relied on the authority provided under section 43 of the CCRA.

[43]       There was ample evidence upon which the Disciplinary Court could find as a fact that Mr. Forrest was voluntarily absent. This finding of fact is not patently unreasonable.

[44]       In considering the rules of natural justice and the duty to act fairly, the applicant had a full opportunity to be present at the hearing, the applicant had proper notice of the disciplinary charges, and the applicant had requested the adjournment of the hearing so that the Disciplinary Court could bring the witnesses requested by the applicant. The Disciplinary Court, not the applicant, dictates the date for the hearing, and if the applicant chooses to be absent, he cannot later complain that he did not have a fair hearing.

(B)              Allegations of Sexual Abuse

[45] The applicant had, in the past, repeatedly told other inmates and other officers that the correctional officer who conducted the search was a homosexual who sexually abused the applicant. The applicant made these allegations of homosexuality whenever the correctional officer conducted a search, as was the case on December 8, 1998.

[46] That correctional officer wrote to the Warden of Kingston Penitentiary on two occasions complaining that the applicant has made "malicious and vile"allegations in front of other inmates and correctional officers.

[47] The applicant argued that the Disciplinary Court erred in failing to consider the applicant's allegations of sexual abuse and mistreatment by the correctional officer. I find this not to be the case. The Disciplinary Court held at page 3 in its Reasons for Decision:

"[the officer] testified that he was particularly concerned with Mr. Forrest's behaviour in that he has consistently and repeatedly made allegations to the effect that [the officer] is a homosexual and this patting him down was for sexual purposes."

[48] And then at page 5 the Disciplinary Court held:

"In this situation Mr. Forrest made unsupported allegations against [the officer] for which I provide no penalty."

[49] I am satisfied that the Disciplinary Court did consider the allegations by the applicant and concluded that they were unsupported. For this reason these allegations were not given any weight or credibility by the Disciplinary Court. Based on the evidence in the record, this finding is reasonable and will not be interfered with by this Court.

[50] For these reasons, the second application for judicial review is dismissed.

LEGAL COSTS

[51]       In 1999, the respondent offered to settle these two cases. For this reason, the respondent has asked for legal costs on a solicitor-and-client basis.

[52]       This Court has stated in the past that legal costs are properly awarded against inmates, and that inmates should not be afforded any special treatment regarding costs. Moreover, neither the ability of the inmate to pay nor the difficulty of the collection should be a deciding factor. Rather, the awarding or refusal of costs should be based on the merits. See Henry v. Canada, [1987] 3 F.C. 429 (F.C.T.D.) as per Strayer J. (as he then was), at paragraph 35.

[53]       On September 10, 1999 the Warden of the Kingston Penitentiary advised the Court that the respondent would consent to an order that both of these Disciplinary Court decisions be set aside and the matters be referred back to the Disciplinary Court for reconsideration. It is clear from the record that the offer of settlement was precipitated by an administrative error at the Kingston Penitentiary with respect to the audio tapes of the Disciplinary Court proceedings.

[54]       On September 21, 1999 Lemieux J. issued instructions to the Registry as follows:

"Contact Irvine Forrest at Kingston Penitentiary and ask him if, as applicant, it is acceptable to him that, as proposed by the Warden of Kingston Penitentiary, the decisions in both these cases be set aside and the matters be sent back to the independent Chairperson for recommendation."

[55]       By letter dated September 23, 1999, the applicant stated his conditional acceptance of the offer, subject to his being reimbursed "in full" for his costs. After some negotiation, the applicant set out his legal costs which were Court fees, registered mail expenses and long-distance telephone call expenses. The respondent agreed to pay the legal costs, but not the long-distance telephone call expenses. This offer was not accepted by the applicant so that the cases proceeded.

[56]       Rule 400(3) of the Federal Court Rules, 1998 sets out the factors the Court may consider in awarding costs including the following subsections:

400.(3) In exercising its discretion under subsection (1), the Court may consider

(a) the result of the proceeding;

(e) any written offer to settle;

(i) any conduct of a party that tended to shorten or unnecessarily lengthen the duration of the proceeding;

(k) whether any step in the                 proceeding was

(i) improper, vexatious or           unnecessary.

400. (3) Dans l'exercise de son pouvoir discrétionnaire en application du paragraphe (1), la Cour peut tenir compte de l'autre des facteurs suivants :

a) le résultat de l'instance;

e) toute offre écrite de règlement;

i) la conduite d'une partie qui a eu pour effet d'abréger ou de prolonger inutilement la durée de l'instance;

k) la question de savoir si une mesure prise au cours de l'instance, selon le cas :

(i) était inappropriée, vexatoire ou inutile

[57]       These factors apply to the applicant in these two proceedings. The result of the proceedings is that both applications are dismissed. The applicant proceeded in the face of an offer to settle. That offer would have set aside the two decisions under review, the objective of the present proceedings.

[58]       The applicant has a history of multiple proceedings before the grievance system in the penitentiary and before the Disciplinary Court. At the hearing, the applicant described himself as "an activist", always challenging decisions of the correctional institution. The applicant advised that he has filed over 600 complaints and grievances since his incarceration, and that he has five other matters pending before this Court.

[59]       At this hearing it was evident that the applicant was more interested in appearing before the Court, than in having the Disciplinary Court decisions set aside. Otherwise, he would have accepted the offer of settlement, thus rendering the Court proceedings unnecessary.           For this reason, I am satisfied that the conduct of the applicant unnecessarily lengthened the duration of the proceedings, and that the proceedings were vexatious.

[60]       Accordingly, costs will be awarded to the respondent. The respondent has asked for legal costs on a solicitor-and-client basis. I do not find this an appropriate circumstance for costs on a solicitor-and-client basis. Costs will be awarded to the respondent in both applications, on a party-and-party basis to be paid forthwith. The Court will fix the amount of the costs after receiving submissions. The respondent has ten (10) days to file submissions, the applicant has ten (10) days thereafter to respond, and the respondent five (5) days thereafter to reply.

        (signed) Michael A. Kelen

________________________________

            JUDGE

OTTAWA, ONTARIO

MAY 9, 2002