Date: 20090601
Docket: T-1539-08
Citation: 2009 FC
564
Vancouver, British
Columbia,
June 1, 2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
PAUL SPANEVELLO
Applicant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
Paul
Spanevello and Charles Bickford are incarcerated at Mountain Institution in British Columbia. Commencing in the
evening of March 29, 2008 and continuing into the next day there was a riot at
the institution. Following that event, both were charged with “disobeying a
justifiable order of a staff member.” Neither was directly involved in the
riot.
[2]
It
was alleged that both refused the directions to return to their living units.
Both claim that Corrections Officer Anna English entered the unit at the time the
disturbance began, after which the unit’s doors were locked. They both further
maintain that Officer Gunner Cordsen, who was out of doors at the time,
recognized that they had been locked out of the unit and gave them an order as
to where they were to stand, and that they did so.
[3]
These
gentlemen were charged on April 18, 2008, and the first hearing date for the
charge was May 26, 2008. That hearing was adjourned due to unavailability of
Officers and witnesses. The hearing resumed June 9, 2008, but was later
adjourned due to the unavailability of witnesses. There had been a number of
remands due to the unavailability of witnesses and, in one instance, the unavailability
of counsel. The hearings were finally scheduled to be heard and were heard on
September 4, 2008.
[4]
Throughout,
these inmates made it clear that Officers English and Cordsen were necessary
witnesses in support of their position that they had not disobeyed an order.
They requested that they appear and provide evidence. The Independent Chairperson
(ICP) hearing these matters refused to order those Officers to appear and give
evidence. The inmates had no independent way to otherwise require their
attendance.
[5]
Prior
to the final hearing of these charges, counsel for the applicant asked the ICP
to dismiss the charges on the basis of delay. The governing legislation and
Commissioner’s Orders makes it clear that these disciplinary matters are to be
heard in a prompt and expeditious manner and that dismissal may result from
delay. The ICP refused to entertain that motion. Both were convicted of the
charges and sentenced to five (5) days segregation time, suspended.
[6]
Both
commenced an application for judicial review (Court files T-1539-08 and
T-1540-08).
[7]
The
respondent brought a motion, returnable on June 1, 2009, seeking an order
allowing these applications for judicial review, setting aside the decisions of
the ICP and ordering that the charges be determined before a different ICP. The
respondent quite properly concedes that the ICP erred in failing or refusing to
call these specific eyewitnesses requested by these inmates.
[8]
The
applicant, while accepting the respondent’s concession, asks that this Court
direct an acquittal with respect to the charges.
[9]
After
reviewing the material before the Court, I am not satisfied that this is an
appropriate case to direct that the matter be remitted back with directions
that direct a specific decision. The criteria set out in Johnson v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1262 at paragraph 20, are not
established. In particular, I am of the view that the evidence on the record is
not so clearly conclusive that only one possible conclusion is available.
[10]
I am
satisfied, however, that a referral back with some direction is appropriate in
light of the conduct of the ICP which the Court considers to have been
scandalous. His refusal to consider a motion to dismiss for delay, and his refusal
to call the witnesses that are now conceded to have been material, brings into
question the fairness of the process and the independence of the ICP.
[11]
Accordingly,
this matter will be remitted for a redetermination by a new ICP, who is to be named
without delay. If the applicant wishes to bring a motion to dismiss for delay,
he is at liberty to do so upon advising the ICP within 15 days hereof. The ICP
shall consider all of the evidence of delay from the date of the initial
infraction forward. In light of the requirement that such hearings be done
promptly, the ICP is directed to determine the motion, if brought, and render a
decision within 30 days of the date hereof. If the charge is not dismissed due
to delay, the ICP shall convene a hearing and shall render a decision on the
charge within 60 days of the date hereof. The ICP shall compel Officers English
and Cordsen to give evidence at the hearing. Should either be unavailable or
fail to attend the hearing, the charges against the applicant should be
dismissed by the ICP as their evidence is material to the applicant’s defence.
ORDER
THIS
COURT ORDERS that:
1. This application for judicial
review is allowed;
2. The decision of
the ICP rendered September 4, 2008, is quashed and all reference thereto is to
be removed from the applicant’s record; and
3. The matter is
remitted for determination by another ICP who is directed to conduct the
hearing in accordance with these reasons and to conclude the hearing and render
a determination no later than 60 days from the date hereof.
“Russel
W. Zinn”
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