T-350-96
BETWEEN:JACQUES
MINEAU, inmate, currently incarcerated in the Port‑Cartier penitentiary,
situated on chemin de l'Aéroport, in Port-Cartier, Quebec,
Applicant,
AND:HUBERT BESNIER, in
his capacity as chairperson of the disciplinary tribunal of the Port-Cartier
penitentiary, situated on chemin de l'Aéroport, in Port-Cartier, Quebec,
-and-
ATTORNEY GENERAL OF
CANADA,
Respondents.
REASONS
FOR ORDER
DENAULT J.:
The applicant is
seeking a writ of certiorari to set aside a finding that he was guilty
of a disciplinary offence made by the disciplinary tribunal of the Port-Cartier
institution where he is an inmate.
The applicant
was charged with having bootleg alcohol in his cell contrary to paragraph 40(i)
of the Corrections and Conditional Release Act, R.S.C. 1985, c. C-44.6
(the Act). According to the affidavit of the chairperson of the disciplinary
tribunal, the corrections officer, Mr. Savard, who was the only witness who
testified at the hearing, identified the substance found in the applicant's
cell as bootleg alcohol, based mainly on the texture and the odour given off by
the product, his experience in this area and his personal knowledge of
alcohol. It should be noted, on this point, that it is impossible to verify
exactly what the witness said since the transcript of his testimony is not
available; because of a recording error, only the comments of the chairperson
in passing sentence are available.
The chairperson
of the disciplinary tribunal, who was satisfied beyond a reasonable doubt that
the applicant was guilty of the offence set out in paragraph 40(i) of
the Act, that is, that he had had contraband in his possession, to wit, bootleg
alcohol, sentenced him to ten days in disciplinary segregation with loss of
privileges.
While the
offence is defined in paragraph 40(i) of the Act, the procedure for
dealing with the charge is set out in subsections 43(1) and (3). They read as
follows:
40.An
inmate commits a disciplinary offence who
...
(i)is
in possession of, or deals in, contraband;
...
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.
(2)...
(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.
Section 2 of the Act defines the
following expressions:
contraband means
(a) an
intoxicant,
...
intoxicant means
a
substance that, if taken into the body, has the potential to impair or alter
judgment, behaviour or the capacity to recognize reality or meet the ordinary
demands of life, but does not include caffeine, nicotine or any authorized
medication used in accordance with directions given by a staff member or a
registered health care professional;
Commissioner's
Directive No. 580
sets out the disciplinary measures that may be imposed on inmates, and includes
the following provisions:
35.The
rules of evidence in criminal matters do not apply in disciplinary hearings.
Chairpersons may admit any evidence which they consider reasonable and
trustworthy.
39.The
chairperson shall decide if the evidence produced at the disciplinary hearing
substantiates, beyond a reasonable doubt, each charge against the inmate.
Counsel for the
applicant argued that he should have been acquitted, since there was no
evidence whatsoever that he had been in possession of an intoxicant.
Counsel for the
respondent argued that the decision to find the applicant guilty of the offence
of being in possession of contraband, in this instance bootleg alcohol, was
made properly and in compliance with the rules of natural justice and
procedural fairness. She argued specifically that a court may admit testimony
that is not expert evidence but that is nonetheless the opinion of a witness on
a fundamental aspect of the case, the weight of that testimony being entirely a
matter for the court trying the case. In support of her position, counsel
cited the decision of the Supreme Court in Graat v. The Queen, [1982] 2
S.C.R. 819. In that case, in which the Court had to determine whether an
individual's ability to drive was impaired by alcohol, both the Supreme Court
and the trial judge believed the opinion evidence of two police officers who
said that the individual's ability to drive was impaired by alcohol. Dickson
J., speaking for the Court, wrote:
Nor is
this a case for the exclusion of non-expert testimony because the matter calls
for a specialist. It has long been accepted in our law that intoxication is
not such an exceptional condition as would require a medical expert to diagnose
it. An ordinary witness may give evidence of his opinion as to whether a
person is drunk. This is not a matter where scientific, technical, or
specialized testimony is necessary in order that the tribunal properly understands
the relevant facts. Intoxication and impairment of driving ability are matters
which the modern jury can intelligently resolve on the basis of common ordinary
knowledge and experience. The guidance of an expert is unnecessary.
If that
be so it seems illogical to deny the court the help it could get from a
witness' opinion as to the degree of intoxication, that is to say whether the
person's ability to drive was impaired by alcohol. If non-expert evidence is
excluded the defence may be seriously hampered. If an accused is to be denied
the right to call persons who were in his company at the time to testify that
in their opinion his ability to drive was by no means impaired, the cause of
justice would suffer.
Whether
or not the evidence given by police or other non-expert witnesses is accepted
is another matter. The weight of the evidence is entirely a matter for the
judge or judge and jury. The value of opinion will depend on the view the
court takes in all the circumstances.
Interesting
though this Supreme Court decision may be, it cannot apply in this instance
without being distinguished on several points. In this case, not only is the
charge against the applicant not the same as in Graat, but the essential
issue to be decided is also very different. In Graat, the Court had to
decide whether a person's ability to drive was impaired by alcohol. In the
case at bar, the Chairperson had to decide whether the applicant was in
possession of contraband, to wit, an intoxicant, and more specifically,
pursuant to the actual definition of that expression, a "substance that,
if taken into the body, has the potential to impair or alter judgment,
behaviour or the capacity to recognize reality or meet the ordinary demands of
life".
It seems plain
that this was not proved. It is not sufficient for an officer to testify as to
the texture and the odour given off by the product in order to establish that
the product had the potential to impair or alter judgment, behaviour or the
capacity to recognize reality, and so on, on the part of the person in
possession of it. The officer's experience in this area and personal knowledge
of alcohol could not substitute for scientific, technical or specialized
testimony, which would at least have indicated the level of alcohol in the
container discovered in the applicant's cell.
Since the
decision of the Chairperson of the disciplinary tribunal was vitiated by an
error of law, the application for certiorari must be allowed.
Accordingly, the decision of the Chairperson of the disciplinary tribunal of
the Port-Cartier penitentiary dated January 25, 1996, finding the applicant
guilty and imposing a sentence of ten days' disciplinary segregation with loss
of privileges, is set aside.
OTTAWA, April 16, 1997
PIERRE DENAULT
J.F.C.C.
Certified true translation
C. Delon, LL.L.
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