T-392-95
B e t w e e n:
MARIO TRUNZO,
Applicant,
- and -
CHARLES BIRT IN HIS CAPACITY AS INDEPENDENT CHAIRPERSON OF THE INSTITUTIONAL DISCIPLINARY
COURT AT STONY MOUNTAIN PENITENTIARY,
Respondent.
REASONS FOR ORDER
ROTHSTEIN, J.
The burning issue in this judicial review is whether the applicant refused to provide a urine sample as required by the Corrections and Conditional Release Act1 and Corrections and Conditional Release Regulations2.
The applicant was observed by a corrections officer to be glossy eyed and slow of speech. He was requested to provide a urine sample. He initially refused but then agreed, providing approximately 10 millilitres of urine. (The equivalent of approximately 2 teaspoons). The applicant was advised this sample was insufficient and was asked for a further sample. He requested the opportunity to consult a lawyer and after doing so refused to provide a further sample. He was then charged with failing and refusing to provide a urine sample when demanded pursuant to paragraph 54(a) of the Corrections and Conditional Release Act. In deciding to convict the applicant and fine him $35, the Chairperson of the Institutional Disciplinary Court at Stony Mountain Penitentiary held:
| Two issues as I see it: one is, and I made a finding that the reg's require the experience and testimony of those who have to carry out the basic sampling and that they need the 40 millilitres, and the condition of the 40 millilitres or approximately 40 millilitres is required, and is the amount of the sample that must be given. Anything less than that, especially 10 or 20, is not meeting that criteria. And therefore I am going to make a finding that a proper sample was not given. |
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. . .
| So between the two events, even if the first event was an inappropriate one, and we have heard evidence of where some people just can't give a full amount of the sample in the first go-around. I think that's why they've got the two hour window. Then ultimately they do give that responsibly, the amount that is required. You refused to give the sample that was requested. |
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So I am going to make the finding of guilt in this matter.
The applicant says that there is no requirement in the regulations under the Corrections and Conditional Release Act that a 40 millilitre sample must be given. I do not agree.
Section 60 of the regulations defines "sample" as meaning:
| "sample" means a quantity of unadulterated urine sufficient to permit analysis, using an approved procedure, by a laboratory. |
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"Approved procedure" is defined in section 60 of the regulations as meaning:
| "approved procedure" means a procedure set out in Commissioner's Directives as a procedure to be used for the analysis of a sample. |
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Sections 97 and 98 of the Corrections and Conditional Release Act provide:
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97. Subject to this Part and the regulations, the Commissioner may make rules |
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(a) for the management of the Service; |
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(b) for the matters described in section 4; and |
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(c) generally for carrying out the purposes and provisions of this Part and the regulations. |
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98. (1) The Commissioner may designate as Commissioner's Directives any or all rules made under section 97. |
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(2) The Commissioner's Directives shall be accessible to offenders, staff members, and the public. |
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Commissioner's Directive #572 is entitled "Urinalysis Program in Institutions and in the Community". Paragraphs 1 and 2 provide:
| 1. To contribute to institutional and public security and safety by detecting the use of intoxicants and by deterring usage and trafficking of intoxicants by offenders. |
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| 2. To assist offenders in becoming law abiding citizens by supporting and monitoring them in their discontinuance of substance abuse behaviour. |
Paragraph 24 provides:
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The Guidelines for Urinalysis Program in Institutions and in the Community related to this Commissioner's Directive shall be followed unless the constraints or exigencies of a particular situation do not permit it. |
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The guidelines which are referred to in paragraph 24 are entitled "The Guidelines for Urinalysis Program in Institutions and in the Community". Paragraph 36 of the Guidelines provides:
| 36. After providing approximately 40 millilitres of urine, the offender shall place the lid on the container and give the container to the collector before being authorized to wash his or her hands. |
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As I read the definition of "approved procedure" in the regulations, it incorporates by reference, the procedures set out in Commissioner's Directives. The Commissioner's Directives incorporate by reference, to the extent set out in paragraph 24 of the Directives, the Guidelines for Urinalysis Program in Institutions and in the Community. Section 36 of the Guidelines sets forth the "approximately 40 millilitres" requirement. While in themselves they may not be law, when read in conjunction with the definition of "approved procedure" in section 60 of the regulations, it is apparent the Commissioner's Directives and Guidelines have been incorporated by reference into the regulations and are, to this extent, law.
It is obvious that 10 millilitres is not "approximately 40 millilitres". I have no difficulty concluding that the Chairperson was correct in finding that the regulations require that the applicant provide approximately 40 millilitres of urine. It is this amount that constitutes a sample for the purposes of the regulations.
It may be that a urinalysis could be performed by some laboratories using 10 millilitres of urine. Be that as it may, the regulations require approximately 40 millilitres. According to paragraphs 25 and 26 of the Guidelines, persons from whom samples are requested are given two hours to provide the sample and may be authorized to drink a maximum of eight ounces of water. Forty millilitres of urine is equivalent to less than three tablespoons. It is obvious that 40 millilitres is not an unreasonable requirement.
Subsection 66(1) of the regulations sets out the procedure for the collection of a urine sample. Subsection 66(2) of the regulations states:
| 66. (2) Where a person fails to provide a sample in accordance with subsection 1, the person shall be considered to have refused to provide the sample. |
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I am of the opinion that in finding that the applicant refused to provide the sample requested and convicting the applicant thereof, the Chairperson made no error and acted in accordance with the requirements of the Act and regulations. The application for judicial review is dismissed.
At the conclusion of the hearing I asked counsel to speak to the matter of costs and whether this case constituted one in which there were special circumstances warranting an award of costs under Federal Court Rule 1618. Counsel for the respondent advised the Court he had no instructions on the issue of costs. Counsel for the applicant submitted that costs should not be awarded.
What is at stake here is a $35 fine. The entire incident arose because, for no apparently valid reason, the applicant refused to provide a reasonable urine sample. After providing the equivalent of two teaspoons, he insisted on calling a lawyer. He then refused to provide further urine as requested. When convicted, he sought judicial review. While he has a right to do so, invoking the mechanism of the judicial system for such a trivial matter is close to absurd. There is significant public expenditure involved in a judicial review application and it is quite apparent this applicant has no regard for the burden he has placed on the legal system and the Canadian taxpayer. The Court has an obligation in these circumstances to demonstrate to the applicant and to signal to potential litigants and counsel that invoking the mechanism of the judicial system for frivolous cases will not be costless. Costs of $300 are awarded against the applicant. This amount is relatively low. Litigants and counsel should be forewarned that increased awards of costs, including costs against counsel personally, could be made in similar cases in the future.
Marshall Rothstein
Judge
OTTAWA, ONTARIO
NOVEMBER 21, 1996
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1 1992, c. 20, as amended.
2 SOR/92-620, October 29, 1992, as amended.
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