Date: 20110401
Docket: T-1503-10
Citation:
2011 FC 404
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Montréal, Quebec, April 1, 2011
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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RHÉAUME TREMBLAY
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review of a decision of the independent Chairperson of
the disciplinary court which found the applicant guilty of the disciplinary
offence under paragraph 40(f) of the Corrections and Conditional
Release Act, S.C. (1992), c. 20 (the Act), of having been disrespectful or
abusive toward a staff member in a manner that could undermine a staff member’s
authority.
I. Facts
[2]
The
applicant, Rhéaume Tremblay, is incarcerated at the Cowansville Institution, a
medium- security penitentiary. On June 13, 2010, correctional officers in the
cell block in which he was incarcerated received a call alerting them that he
had been seen hiding something in his pockets. A correctional officer stopped
him while he was going up the stairs to his cell. The officer then asked the
applicant to empty his pockets, which he proceeded to do. The officer then
noticed that the applicant was holding something between his thumb and index
finger of his right hand. When asked what he had in his hand, the applicant put
his hand up to his mouth and swallowed the substance.
[3]
An
offence report and notice of charge was issued against the applicant under paragraph
40(f) of the Act. A disciplinary hearing was held on August 4 and August
31, 2010. When the hearing concluded, the disciplinary court found the
applicant guilty of the offence in question.
[4]
In
its decision, the disciplinary court stated that in the circumstances this was
a search and that the applicant should have handed over the object he was
hiding. By swallowing it he had acted in a disrespectful manner and undermined
the officer’s authority.
Did the Chairperson
commit an unreasonable error or an error in law by finding the applicant guilty
of the offence in question?
[5]
The
issue that arises in the case at bar is one of mixed fact and law since it must
be determined whether the court assessed the evidence in light of paragraph 40(f)
of the Act. The applicable standard of review is reasonableness (Séguin
v. Canada (Attorney General), 2008
FC 551, at para. 10).
[6]
The
offence in question reads as follows:
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Disciplinary
offences
40.
An inmate commits a disciplinary offence who:
(f)
is disrespectful or abusive toward a staff
member
in a manner that could undermine a
staff
member’s authority.
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Infractions
disciplinaires
40.
Est coupable d’une infraction disciplinaire le détenu qui :
f)
agit de manière irrespectueuse ou outrageante envers un agent au point de
compromettre l’autorité de celui-ci ou des agents en général.
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[7]
Under
subsection 43(3) of the Act, the Chairperson of the disciplinary court shall
not find an inmate guilty unless satisfied beyond a reasonable doubt, based on
the evidence presented at the hearing, that the inmate committed the offence in
question.
[8]
The
applicant submits that the factual framework of his case is similar to that of McCoy
v. Canada (Attorney
General),
2003 FCA 118 (McCoy). In that case the appellant was not, as in the present
case, charged with the offence set out at paragraph 40(f) of the Act,
but rather, with the offence described at paragraph 40(g), which differs
from the former offence by the fact that one of its essential elements is the
provocation to violence.
The actus reus of the offence under paragraph 40(g)
of the Act consists in the fact of engaging in an action that is not simply
disrespectful but is actually so disrespectful that it is going to provoke the
person who is on the receiving end to engage in violence… (McCoy, above,
at para. 10).
[9]
Justice
Létourneau found, at paragraph 16, that there was a complete lack of evidence
on this essential element of the offence, namely, the provocation to violence. I
therefore fail to see how this jurisprudence could be applied by analogy to the
present case, given that the offence for which the applicant was found guilty
under paragraph 40(f) of the Act does not require a provocation to
violence. In this case, the only relevant element is the dictionary definition
accepted by the judge of what constitutes disrespectful behaviour. For a
gesture or remark to be disrespectful, it must necessarily demonstrate “[w]ant
of respect, courteous regard, or reverence”.
[10]
It
is not for the Court to substitute its own findings for those of the disciplinary
court. In this case, the Chairperson of the disciplinary court found that the
applicant had acted in a disrespectful manner because he had not handed over to
the officer searching him the unidentified object he was holding in his hand and
which may well have turned out to have been illicit, but instead swallowed it,
thereby preventing the officer from proceeding with the search he was legally
entitled to conduct. This finding is not at odds with the definition accepted
in McCoy, above. It falls within the range of possible, acceptable
outcomes which are defensible in respect of the facts and law. Therefore, the
Court’s intervention is not warranted.
[11]
The applicant also submits that the evidence fails to support the
essential element of the offence under paragraph 40(f) of the Act, that
the actions are such that the staff member’s authority could be undermined. Moreover, the
authority of the staff member or of staff members in general could only have
been undermined if other inmates were present at the time the offence was
committed, which was not the case here.
[12]
In
MacDonald v. Canada
(Attorney General), 2007 FC 798, an inmate had
been charged with having undermined the authority of the correctional officer
who had filed the charge because he had laughed at her when returning to his
cell for the inmate count. Taking into account the specific circumstances of
the case, Justice Simpson stated, at para. 24:
The
Written Charge was accepted as trustworthy evidence by the Presiding Official
and was therefore admissible evidence. However, in my view, the Written Charge
did not provide sufficient facts to establish beyond a reasonable doubt that an
offence under subsection 40(f) of the Act had been committed. Among other
things, the Written Charge included no information about the surrounding
circumstances. For example, if no other inmates had been nearby to hear the
laugh, it would have been impossible to conclude that it undermined the
Charging Officer’s authority.
[Emphasis
added.]
[13]
On
reading this passage, it is clear that Justice Simpson did not want the
presence of other inmates to become a sine qua non condition for a
conviction under paragraph 40(f) of the Act. In that case, Justice
Simpson expressed herself in obiter on a situation which could have
undermined a staff member’s authority in a very specific context where the
accused had laughed at the on-duty correctional officer. That obiter in
no way bound the court.
[14]
Furthermore,
that situation does not apply to the facts in this matter because the applicant
is charged with having undermined the authority of a correctional officer for
having impeded a search by swallowing a substance he was holding in his hand,
and not for having laughed out loud at the officer. In the circumstances of a
search, a staff member’s authority can be undermined if the inmate does not
comply, regardless of whether other inmates are present or not.
[15]
In
the present case, the disciplinary court found that the applicant had undermined
the correctional officer’s authority when he swallowed the substance he was
holding in his hand, thereby impeding the search, even though no other inmate
was present.
[16]
This
finding is not unreasonable. It falls within the range of possible, acceptable
outcomes which are defensible in respect of the facts and law and does not
warrant the Court’s intervention.
[17]
For these reasons, the application for judicial review is
dismissed.
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