Date: 20110223
Docket: T-874-10
Citation: 2011 FC 213
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa, Ontario, February
23, 2011
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
MARIO
CYR
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of the decision by Marie‑Claude Landry,
Chairperson of the disciplinary court (the Chairperson), dated May 19,
2010, finding Mario Cyr (the applicant) guilty of failing or refusing to
provide a urine sample, a disciplinary offence under paragraph 40(l) of
the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the
Act).
I. Facts
[2]
The
applicant is currently incarcerated at the Drummond Institution, a medium
security penitentiary. On March 25, 2009, he received a Notification to Provide
a Urine Sample in Institution under paragraph 54(b) of the Act. This
notice was issued as part of a prescribed random
selection urinalysis program.
[3]
Although
the correctional officers informed him that he had two hours to provide the
urine sample, he left the site an hour later without providing one. Since
subsection 66(2) of the Corrections and Conditional Release Regulations,
SOR/92‑620, states that the failure to provide a urine sample is
considered a refusal, an Offence Report and Notification of Charge was issued against
the applicant under paragraph 40(l) of the Act.
[4]
The
applicant pleaded not guilty to the alleged disciplinary offence, relying on his
inability to provide the sample. On May 27, 2009, a first
disciplinary hearing took place at which the disciplinary court had the
opportunity to hear the applicant’s testimony and that of the correctional
officers in order to examine the reasons why the applicant had refused to
provide a urine sample.
[5]
Based
on the uncontradicted evidence at that hearing, the sequence of events
surrounding the applicant’s refusal may be summarized as follows. It appears
that the applicant was asked to provide a urine sample at 8:45 a.m. Since he
had just urinated when he got up, he drank one or two glasses of water before
leaving his cell, then two to three more glasses in the waiting room adjacent
to the place where he was to provide his urine sample. He subsequently tried to
provide the requested sample twice, first around 9:20 a.m., then at 9:42 a.m., but
to no avail.
[6]
The
applicant explained to the two officers that his stomach was upset and that he was
unable to provide the sample without defecating. In view of this situation, the
officers told the applicant that he could submit to a strip search so they
could verify that he had nothing in his possession that could falsify the test.
This accommodation measure was suggested because the Commissioner’s Directive
on urinalysis testing provides that when the sample is collected the officers
must watch the person to ensure that the sample is not altered. The suggested
accommodation would have allowed the applicant to provide the sample in
private, in a washroom, and to defecate at the same time if necessary. When
questioned about this, the officers said, however, that they did not remember
explaining to the applicant why they were giving him the opportunity to submit
to a strip search, saying they thought that he could make that inference on his
own.
[7]
The
applicant refused the offer of a strip search, saying that he would not be able
to submit to one without defecating. Instead, he asked the officers if he could
go to the washroom and bring back a urine sample, but they denied that request.
It was at that point that he left the room he was in with the officers, even
before the allotted two-hour time limit had expired, without providing the
urine sample as requested.
[8]
The
disciplinary hearing took place on May 27, 2009; at that time, the applicant
and the two correctional officers present testified. The applicant reiterated
that he had been unable to provide the urine sample without defecating although
he had drunk a number of glasses of water to make things easier. He said he had
never refused to participate in a urine test, had not used drugs for three
years or alcohol for thirteen years, and had no major report in his
disciplinary file. Moreover, one of the two correctional officers indicated
that Mr. Cyr was very co‑operative and behaved normally during the
time he was under their supervision.
[9]
After
deliberating, the Chairperson of the court found the applicant guilty of the
disciplinary offence as charged. That decision was challenged, and
Mr. Justice Michel Beaudry allowed the application for judicial
review on the basis that the reasons for the decision were inadequate.
II. Impugned decision
[10]
In
her oral decision, the Chairperson of the court began by noting that this Court
had allowed the first application for judicial review and that the matter had
been remitted for redetermination. She added that the parties had agreed that
there would be no new hearing and that the court would make a decision based on
the recording of the original proceedings. Thus, the parties were not heard
again with respect to the second decision.
[11]
Then,
after briefly summarizing the facts, the Chairperson found Mr. Cyr guilty
of the offence as charged. Her reasoning can be seen in the following lines:
[translation]
The court does not accept Mr. Cyr’s
defence because, in its view, the order that he be searched first so that he
could attend to his needs alone and comply with the order to provide a urine
sample was reasonable and logical in the circumstances.
III. Issues
[12]
In
my opinion, this case raises two issues:
a. Did the
Chairperson of the court err by convicting the applicant without explaining why
the reason he provided did not raise a reasonable doubt?
b. In convicting
the applicant, could the Chairperson take into account his refusal to submit to
a strip search?
IV. Analysis
[13]
The
first of the two issues identified above involves questions of mixed law and
fact and also raises the issue of the applicant’s credibility. As such, it must
be examined by applying the reasonableness standard. On the other hand, the
second issue is a question of law and is therefore reviewable on the standard
of correctness.
A. Did the Chairperson of the court err by convicting
the applicant without explaining why the reason he provided did not raise a
reasonable doubt?
[14]
Subsection
43(3) of the Act clearly states that the burden of proof that applies to
disciplinary offences is proof “beyond a reasonable doubt”. This provision
reads as follows:
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.
[15]
This
heavy burden of proof is the corollary to the presumption of innocence, which
is entrenched in the Canadian Charter at paragraph 11(d) for all
criminal and penal offences. As Mr. Justice Gilles Létourneau pointed
out in Ayotte v. Canada (Attorney General), 2003 FCA
429 (at paragraph 16), the failure to understand and to properly apply
this standard of proof irreparably prejudices the fairness of the trial or
hearing.
[16]
In
this case, the Chairperson’s decision is silent as to the applicable standard
of proof. This would not be fatal if it could be inferred from her reasoning
and comments that she was aware of the fact that that was the burden of proof
the respondent had to meet. Her somewhat cursory decision does not permit the
Court to draw this inference.
[17]
In
fact, the Chairperson did not provide any explanation for convicting
Mr. Cyr except that it did not appear reasonable to her to refuse the
offer that was made to him to submit to a strip search before using the
washroom in private. I will return to this issue later. Even assuming that the
Chairperson did consider this factor in assessing Mr. Cyr’s guilt, that
did not excuse her from considering the applicant’s reason for not providing the
urine sample in front of the correctional officers.
[18]
The
Chairperson would have been entitled to disbelieve the applicant and to not
find him credible when he claimed he was unable to urinate without defecating.
But if that were the case, she had to explain why she did not believe his
testimony especially since an officer testified that Mr. Cyr was
co-operative at all times, had no major disciplinary offence in his file and
had stopped using drugs and alcohol a number of years ago.
[19]
Had
Mr. Cyr’s explanation been accepted, it would have negated the actus reus of the
offence in that he was unable, despite reasonable efforts, to provide the
requested urine sample. It is true that this case can be distinguished from the
Ayotte case, above, because the inmate said he was unable to urinate
even after drinking a glass of water (there was conflicting evidence as to the
amount of water that had been given to him). In this case, Mr. Cyr did not
say that he was unable to urinate but maintained that he was not able to
urinate without defecating. However, in my view, this difference is immaterial.
Apart from arguing that an individual may be required to provide a urine sample
in front of other people even if, in doing so, he or she has to also defecate
in front of them without being able to use the washroom, I believe that
Mr. Cyr’s situation was the same as Mr. Ayotte’s. I cannot bring
myself to admit that persons who are inmates must submit to degrading treatment
that violates their most basic dignity in order to establish that they did not
refuse to comply with an obligation under the Act.
[20]
In
these circumstances, the Chairperson therefore had an obligation to make a
determination on Mr. Cyr’s credibility and to consider the defence he put
forward in his testimony. By failing to do so, the Chairperson erred and did
not comply with section 43 of the Act. She could not be satisfied beyond a
reasonable doubt that the applicant was guilty without examining the defence he
put forward; and she could not convict him without determining not only that
the applicant was not credible but also that his defence did not raise a
reasonable doubt, taking into account all the evidence. By failing to conduct this
exercise, the Chairperson not only erred in her application and interpretation
of the Act, but she also jeopardized procedural fairness.
[21]
In
concluding on this point, I will repeat Mr. Justice Létourneau’s
comments in Ayotte, above, which, in my view, are also completely
appropriate in the context of this case:
[22] Moreover, the chairperson of the
disciplinary court misdirected himself on the law in this case where
credibility was important because all of the evidence rested on the
contradictory testimony of the two witnesses. Even if he did not believe the
appellant's testimony, he had to acquit him if a reasonable doubt subsisted as
to his guilt. Even if he did not believe the appellant's deposition, he should
have examined it in the context of the evidence as a whole and the reasonable
inferences that he could draw from each and every piece of evidence. But after
that examination he had to acquit him if he was not convinced of his guilt
beyond a reasonable doubt. A reading of the transcript of the arguments clearly
indicates that the chairperson of the disciplinary court did not conduct this
exercise. He was content to make an inappropriate equation between the
appellant's guilt and his absence of credibility, thereby altering the standard
of proof required by the Act to support a guilty verdict.
[22]
On
this ground alone, the Chairperson’s decision must therefore be set aside and
the case remitted for redetermination in accordance with these reasons. Considering
the fact that this is the second time the disciplinary court’s decision has
been set aside, I would also like to deal with the second argument of counsel
for the applicant so that the disciplinary court that will again decide on the
applicant’s complaint knows where the Court stands on this point.
B. In
convicting the applicant, could the Chairperson take into account his refusal
to submit to a strip search?
[23]
The
applicant argues that the Chairperson erred by not accepting his defence
because the correctional officers had offered him a reasonable alternative. In
the applicant’s view, the Chairperson thereby penalized him for exercising his
constitutional rights. It appears to me that this argument must also be
accepted.
[24]
The
respondent acknowledged that the strip search suggested to the applicant was
not authorized under sections 48, 49, 53 or 60 of the Act. This is quite
correct. Section 48 of the Act provides that a strip search may be
conducted, without individualized suspicion, in certain clearly defined
circumstances that do not exist here. Moreover, subsection 49(1) states that
where a staff member suspects on reasonable grounds that an inmate
is carrying contraband or carrying evidence relating to a disciplinary or
criminal offence, the staff member may conduct a frisk search of the inmate. In this
case, the search that the staff members wanted Mr. Cyr to submit to was
not a frisk search, and there has been no allegation that there were reasonable
grounds to suspect that he was carrying another urine sample or any product
that could have falsified the urine test. Subsection 49(3) provides that a
strip search may be conducted in situations not set out in the Regulations
where a staff member believes on reasonable grounds that an inmate is carrying
this type of object, a strip search is necessary to find it and the
institutional head is satisfied that there are reasonable grounds to so
believe; these requirements were clearly not satisfied here. Last,
section 53 deals with frisk or strip searches authorized by the institutional
head while section 60 relates to searches of visitors.
[25]
It
is well settled since the Supreme Court of Canada’s decision in Hunter v.
Southam, [1984] 2 S.C.R. 145, that a warrantless search or seizure is
presumptively unreasonable. To establish that it is nonetheless consistent with
section 8 of the Charter, the onus is on the prosecution to demonstrate that it
is authorized by law, that the law itself is reasonable and that the manner in
which the search was carried out is reasonable. In this case, it is clear that
these conditions could not be satisfied, and accordingly there is no question
that Mr. Cyr could not be subjected to a strip search against his will
without violating his constitutional rights.
[26]
It
is true that Mr. Cyr could have consented to the search; as long as the
consent was informed and voluntary, it would have undermined any subsequent
claim that the search was unreasonable under section 8 of the Charter. However,
consent was not given, and Mr. Cyr refused of his own volition to undergo
a strip search. Could the Chairperson criticize him and dismiss his defence solely
on the ground that he had exercised his Charter right to not be subjected to an
unauthorized intrusion on his person? I do not believe so. A finding to the
contrary would undermine the fundamental rights that the Canadian constitution grants
to everyone; punishing individuals for exercising their rights is tantamount to
denying their rights.
[27]
Counsel
for the respondent attempted to rebut this argument by submitting that the
offer to conduct a search must instead be analyzed as an accommodation measure
offered to the applicant to enable him to comply with the order that had been
given to him to provide a urine sample. The offer was made in the context of
subsection 41(1) of the Act, which reads as follows:
|
Informal
resolution
41.
(1) Where a staff member believes on reasonable grounds that an inmate has
committed or is committing a disciplinary offence, the staff member shall
take all reasonable steps to resolve the matter informally, where possible.
|
Tentative
de règlement informel
41.
(1) L’agent qui croit, pour des motifs raisonnables, qu’un détenu commet ou a
commis une infraction disciplinaire doit, si les circonstances le permettent,
prendre toutes les mesures utiles afin de régler la question de façon
informelle.
|
[28]
In
my view, it does not matter whether the offer made to Mr. Cyr is analyzed from
the perspective of a reasonable step to resolve the matter informally, under
subsection 41(1), or as a consent to a search that would otherwise be unreasonable.
Even assuming that the option of submitting to a strip search could be
considered an alternative to a urine sample in front of the officers, this
alternative could not be viewed as reasonable without assessing the reasons why
Mr. Cyr said he could not submit to the strip search. The transcript shows
that the applicant refused to submit to a strip search on the basis that this
procedure, like urination, would inevitably result in a desire to defecate. However,
the Chairperson did not say a word about this evidence. Again, she was entitled
to not believe Mr. Cyr and to find that the alternative suggested to him
was reasonable in the circumstances; but she could not make this determination
without at least assessing the reason Mr. Cyr gave for not taking
advantage of it and explaining why, considering all the evidence, this did not
seem reasonable to her.
[29]
In
light of the foregoing reasons, I find that the disciplinary court’s decision
must again be set aside and that the application for judicial review should be
allowed.
JUDGMENT
THE COURT
RULES that the application for judicial review is allowed. The case is
remitted for redetermination by a differently constituted court, with costs.
“Yves
de Montigny”
Certified
true translation
Mary
Jo Egan, LLB
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