Date: 20091105
Docket: T-404-09
Citation: 2009 FC 1136
Montréal, Quebec, November 5, 2009
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
EDWARD
BRUCE GENDRON
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review of a decision of the independent Chairperson of
the Disciplinary Court of Cowansville Institution (the Disciplinary Court) made
under subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F‑7,
finding the applicant guilty, under paragraph 40(l) of the Corrections
and Conditional Release Act, R.C. 1992, c. 20 (the Act), for refusing to
provide a urine sample.
[2]
The
applicant is an inmate at Cowansville Penitentiary. On
December 19, 2008, correctional officers had asked him to submit to
urinalysis. According to what the applicant then told the court,
Mr. Ferland, one of the officers, had explained to him that it was a
random selection.
[3]
Such a
selection is authorized by paragraph 54(b) of the Act, which
provides that:
[The] staff member may demand that an
inmate submit to urinalysis … 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.
A refusal of the inmate to submit to such a selection
constitutes a disciplinary offence under paragraph 40(l) of the
Act.
[4]
As
contemplated by the Act, a Commissioner’s Directive regulates the
collection of urine samples. The directive is entitled “Urinalysis Testing in
Institutions”, No. 566‑10, dated December 19, 2008 (the
Directive).
[5]
The
relevant provision of the Directive is paragraph 19, under which “[a]ll demands
for a sample shall be presented to the inmate using Notification to Provide a
Urine Sample form (CSC/SCC 1064)” (the Notification). It should be noted that
the Notification includes an explanation of the applicable penalties, should an
inmate refuses to submit to urinalysis.
[6]
The
Notification was not formally presented to the applicant. The Attorney
General emphasizes the fact that the officers had it in their possession
and within the applicant’s sight, but does not deny that the officers did not
formally present it to the applicant.
[7]
The applicant
refused to provide the urine sample as demanded. The officers did not present
him with the Notification so that he could have confirmed his refusal in
writing. Instead, they filled out the form themselves, indicating that the
applicant had refused to submit to urinalysis.
[8]
The
officers prepared a disciplinary report. The report constituted, at the
same time, the applicant’s notice of charge of the offence under paragraph 40(l)
of the Act, in compliance with subsection 25(1) of the Corrections and
Conditional Release Regulations, SOR/92-620 (the Regulations).
[9]
The
Disciplinary Court found the applicant guilty of refusing to submit to
urinalysis. The applicant did not deny the facts claimed against him.
Rather, he based his defence on the fact that he had not been presented with
the Notification and on the deficiencies of the report to challenge the
validity of the demand to submit to urinalysis and of the charge. The
Disciplinary Court dismissed these arguments. In particular, it did not
consider itself to be bound by paragraph 19 of the Directive, which
requires the presentation of the Notification to the inmate, concluding that
what matters is that the inmate knows of its content.
[10]
The
applicant is seeking judicial review of this decision, arguing in particular
that the presentation of the Notification to an inmate is [translation]
“a basic requirement of procedural fairness”.
[11]
The
applicant maintained that [translation] “the [D]irective would be
useless if it can be ignored without consequence” (ibid.) The applicant
relied on paragraph 54(b) of the Act, which expressly provides
that all urinalysis requests must be made “in accordance with any
Commissioner’s Directives that the regulations provide for”.
[12]
The
Attorney General remarked, at first, that the applicant clearly understood the
procedure for collecting urine samples, as well as the consequences of a
refusal to provide one. Furthermore, he was able to see the Notification that
Mr. Ferland had in his possession, even if it was not formally presented
to him. According to the Attorney General, [translation] “it would impose too rigid a
formality if there were a decision in favour of the applicant in this case”.
[13]
Paragraph
54(b) of the Act provides that the collection of urine samples must be
done, if necessary, in accordance with the directives of the Commissioner of
the Correctional Service of Canada (the Commissioner). The Commissioner issued
the Directive, which unequivocally provides that all urinalysis requests must
be presented by using the Notification. As Mr. Royer, counsel for the
applicant, pointed out, it was therefore a legislative requirement. This
requirement was not respected in this case.
[14]
The
Attorney General’s argument regarding the formality and concerns about the
feasibility of implementing this rule, which seems to have justified, in part,
the Disciplinary Court’s decision is unfounded. In fact, the Directive was
issued by the Commissioner. Since the Commissioner, as a specialist in “the
care and custody of inmates” (Act, par. 5(a)), determined that the
requirement of a written Notification was appropriate to respect the
requirements of procedural fairness, it is not up to the Disciplinary Court nor
the Federal Court to water down this requirement, by creating
vague exceptions that are applied case by case.
[15]
In my
opinion, the failure to comply with this requirement was fatal. Therefore, I do
not need to consider the other argument raised by the applicant.
[16]
The
application for judicial review should be allowed, and the Disciplinary Court’s
decision set aside.
JUDGMENT
THE COURT ORDERS that the application for judicial
review be allowed and the Disciplinary Court’s decision be set aside.
“Danièle
Tremblay-Lamer”
Certified
true translation
Monica
F. Chamberlain
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