T-631-96
OTTAWA, ONTARIO, THE 28TH DAY OF JANUARY 1997.
BEFORE: THE HONOURABLE MR.
JUSTICE PINARD.
BETWEEN:
RONALD
SAVARD,
Applicant,
-
and -
THE
ATTORNEY GENERAL OF CANADA,
Respondent.
O
R D E R
The application for
judicial review of the decision made on February 21, 1996 by the
independent chairperson of the Cowansville Institution disciplinary tribunal,
finding the applicant guilty of refusing to give a urine sample, is allowed,
the subject decision of the chairperson of the disciplinary tribunal set aside
and the matter referred back to the Cowansville Institution disciplinary
tribunal to be decided by it on the basis that the applicant cannot be found
guilty of the offence in question because the related notice of charge contains
no statement of the evidence in support of the charge, thereby infringing
s. 25 of the Corrections and Conditional Release Regulations.
YVON PINARD
JUDGE
Certified true translation
C. Delon, LL.L.
T-631-96
BETWEEN:
RONALD
SAVARD,
Applicant,
-
and -
THE
ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS
FOR ORDER
PINARD J.
The instant application for judicial
review is from a decision made on February 21, 1996 by the independent
chairperson of the Cowansville Institution disciplinary tribunal finding the
applicant guilty pursuant to s. 40(l) of the Corrections and
Conditional Release Act, S.C. 1992, c. 20 ("the Act"),
of refusing to provide a urine sample as required by s. 54(a) of
the Act.
The applicant maintained that his
refusal to provide a urine sample was justified since the allegation in support
of the sample request was too vague and imprecise for him to submit an
intelligent response under s. 57(1) of the Act. Further, the applicant
alleged that he had a reasonable apprehension of bias at the hearing before the
disciplinary tribunal, on account of the fact that the urine sample coordinator
at the Cowansville Institution, Daniel Chateauneuf, performed double duty at
the hearing. The applicant objected that Mr. Chateauneuf had acted as an
assessor for the independent chairperson and had also testified against him
before the disciplinary tribunal.
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At about 7:30 a.m. on January 10,
1996 the applicant went to the Institution infirmary complaining of "bad
headaches". The nurse, Angèle Lacasse, found that he staggered when he
walked, talked slowly and had a dry mouth. The nurse later testified that she
then decided to place the applicant under observation, as she found he was not
in a [TRANSLATION] "normal condition". Following a conversation
between this nurse and the security officer Jacques Grenier, the latter called
Pierre Sansoucy to tell him that the applicant was not in a normal condition.
Mr. Sansoucy in turn called Daniel Chateauneuf, the urine sample
coordinator at the Cowansville Institution, to pass on the information to him.
Mr. Chateauneuf then asked for the applicant to have a urine test. The
applicant categorically refused this request, which caused an offence report to
be issued based on s. 40(l) of the Act. The hearing on this
incident was held on January 31 and February 21, 1996. At that
hearing the urine sample coordinator, Daniel Chateauneuf, was the assessor for
the independent chairperson, and counsel for the applicant objected to this.
The objection was upheld. Although at one point Mr. Chateauneuf then
objected to the witness Grenier being heard, the independent chairperson
disregarded this objection and adjourned this hearing to allow Mr. Grenier
to testify later, as counsel for the applicant wished.
--------------------------------------------------------------------------------
At the hearing in this Court
reference was made to the judgment which I rendered in Picard v. Drummond
Institution Disciplinary Tribunal. In that case, which also involved an
offence of refusing to provide a urine sample requested pursuant to s. 54(a)
of the Act, I quashed the decision of the independent chairperson of the
disciplinary tribunal because of departures from ss. 56 and 57 of the Act,
s. 25 of the Corrections and Conditional Release Regulations ("the
Regulations") and thus a breach of s. 7 of the Canadian
Charter of Rights and Freedoms. In the case at bar, I allowed counsel for
the parties to be heard on the apparent infringement of s. 25 of the
Regulations. In my view there was a flagrant breach of this provision, as the
notice of charge contained absolutely no "summary of the evidence to be
presented in support of the charge at the hearing". This breach is fatal.
It is not simply a Commissioner's
Directive that was not observed, but a regulation enacted pursuant to the Act.
In the Supreme Court of Canada judgment in Martineau and Butters v. Matsqui
Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118, Pigeon J.
made the distinction very clearly at 129:
I
have no doubt that the regulations are law. The statute provides for sanction
by fine or imprisonment. What was said by the Privy Council with respect to
orders in council under the War Measures Act in the Japanese
Canadians case, at p. 107, would be applicable:
The
legislative activity of Parliament is still present at the time when the orders
are made, and these orders are "law".
I
do not think the same can be said of the directives. It is significant that
there is no provision for penalty and, while they are authorized by statute,
they are clearly of an administrative, not a legislative, nature. It is not in
any legislative capacity that the Commissioner is authorized to issue
directives but in his administrative capacity. I have no doubt that he would
have the power of doing it by virtue of his authority without express legislative
enactment. It appears to me that s. 29(3) is to be considered in the same
way as many other provisions of an administrative nature dealing with
departments of the administration which merely spell out administrative
authority that would exist even if not explicitly provided for by statute.
In
my opinion it is important to distinguish between duties imposed on public
employees by statutes or regulations having the force of law and obligations
prescribed by virtue of their condition of public employees. The members of a
disciplinary board are not high public officers but ordinary civil servants.
The Commissioner's directives are no more than directions as to the manner of
carrying out their duties in the administration of the institution where they
are employed.
As the notice of charge in the case
at bar contains merely a description of the offence and no summary of the
evidence to be presented in support of the charge at the hearing before the
disciplinary tribunal is given, I am forced to find that the authorities did
not carry out the will of Parliament, which intended to give an inmate charged
with a disciplinary offence a specific and particular means of preparing a full
and complete defence, which is a recognized rule of natural justice.
Consequently, this departure seems a
sufficient basis for allowing the instant application for judicial review
without further consideration of the other arguments made by the applicant.
An order is therefore made quashing
the subject decision of the independent chairperson of the Cowansville
Institution disciplinary tribunal and referring the matter back to that
tribunal to be decided by it on the basis that the applicant cannot be found
guilty of the offence charged because the related notice of charge was not
issued in full compliance with s. 25 of the Regulations.
YVON PINARD
JUDGE
OTTAWA, Ontario,
January 28, 1997.
Certified true translation
C. Delon, LL.L.
FEDERAL
COURT OF CANADA
TRIAL
DIVISION
NAMES
OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE No.:T-631-96
STYLE OF CAUSE:Ronald Savard v. Attorney General of Canada
PLACE OF HEARING:Montréal, Quebec
DATE OF HEARING:January 22, 1997
REASONS FOR JUDGMENT BY:Pinard J.
DATED:January 28, 1997
APPEARANCES:
Jean-Sébastien ClémentFOR THE APPLICANT
Eric LafrenièreFOR THE RESPONDENT
SOLICITORS OF RECORD:
Jean-Sébastien ClémentFOR THE APPLICANT
Montréal, Quebec
George ThomsonFOR THE RESPONDENT
Deputy Attorney General of Canada
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