Docket:
T-1185-13
Citation: 2014 FC 363
Ottawa, Ontario, April 16, 2014
PRESENT: The Honourable Mr. Justice O'Keefe
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BETWEEN:
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BRIAN OBEYESEKERE
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA and
THE INDEPENDENT CHAIRPERSON OF COLLINS BAY INSTITUTION
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
An inmate of a federal penitentiary was
convicted of disobeying a justifiable order of a staff member under paragraph
40(a) of the Corrections and Conditional Release Act, SC 1992, c 20 [the
Act]. He now applies for judicial review of his conviction pursuant to
subsection 18.1(1) of the Federal Courts Act, RSC 1985, c F-7.
[2]
Brian Obeyesekere (the applicant) seeks to have
the conviction set aside and an order directing that he be acquitted and his
file corrected. In the alternative, he asks that the matter be sent back to be
heard by a different independent chairperson. The applicant also asks for costs
on a solicitor-and-client basis.
I.
Background
[3]
The applicant is an inmate of the Collins Bay
Institution. On April 13, 2013, an emergency lock up was ordered there and a
few days later, the applicant was notified of the following charge arising from
those events:
I/M OBEYESEKERE FPS 877090D disobeyed a direct
order to lock up in an emergency. Two announcements were made on the unit PA “emergency lock up.” OBEYESEKERE remained on the phone. I ordered him to lock up and in
response, he waved his hand at me and said, “ya, ya” or something to that effect.
I/M OBEYESEKERE proceeded to lock up when the phone was disconnected from the
security post. He has been charged i[illegible] the recent past for delaying an
institutio[illegible] formal coun[illegible].
II.
Decision
[4]
The offence was categorized as serious and the
matter was heard by an independent chairperson on June 19, 2013. The
chairperson convicted the applicant at the end of the hearing.
[5]
His reasons were concise. First, the chairperson
rejected the idea that the applicant should be held to a higher standard
because he is the inmate committee chairman. Then he summarized all of the
evidence that he had seen and heard, which included testimony from the charging
officer, the applicant, a couple other inmates and a video showing the events
in question.
[6]
The chairperson found that the applicant hung up
the phone shortly after being approached by the officer. The chairperson had no
problem with his actions up to this point and would have acquitted him if the
applicant had returned to his cell immediately.
[7]
However, the applicant did not do so. Rather, he
went over to pick up his laundry, then milled about for around a minute before
walking slowly back to his cell. The chairperson was therefore left with no
reasonable doubt that the applicant disobeyed the officer’s direct order to
lock up and he found the applicant guilty.
[8]
Following that, he invited arguments on the
appropriate sanction and he gave the applicant a warning.
III.
Issues
[9]
This application raises the following issues:
1.
What is the standard of review?
2.
Did the chairperson err by convicting the
applicant for his actions following the phone call?
3.
Was the conviction otherwise unreasonable?
IV.
Applicant’s Submissions
[10]
The applicant says that the standard of review
is correctness for all the issues raised. In his view, the chairperson had no
authority to consider matters not described in the charge and so he views it as
a question of true jurisdiction. Further, it is a question of statutory
interpretation and he says the chairperson has no greater experience relative
to the Courts and should not be granted any deference on questions of law. He
also added at the hearing that it was a matter of procedural fairness, which
also attracts a correctness standard.
[11]
The applicant relies on subsection 25(1) of the Corrections
and Conditional Release Regulations, SOR/92-620 [the Regulations], which
requires that the notice “describe the conduct that is
the subject of the charge.” Here, the notice only said that the
applicant had failed to hang up the phone when ordered to do so and no
reference was made to the conduct for which he was convicted. Therefore, he
says the decision should be set aside.
[12]
The officer gave a statement saying that the
applicant followed orders after hanging up the phone and the applicant says the
chairperson should not have ignored that. Further, the applicant legitimately
explained that he was retrieving his possessions and that, based on past
experience, he knew he had enough time to return to his cell before it would be
locked up. The applicant says those explanations should have raised a
reasonable doubt in the chairperson.
[13]
As well, the applicant states that the
chairperson failed to consider the allegations of bias against the charging
officer, which was relevant to the credibility of the charges against him. The
applicant says that also should have caused the chairperson to reasonably doubt
the applicant’s guilt.
[14]
Finally, the applicant points out that he has
limited financial means and was forced to expend those scarce resources by
hiring a lawyer. Since the decision of the chairperson was patently improper,
he says he should be awarded costs on a solicitor-and-client basis.
V.
Respondents’ Submissions
[15]
The respondents argue that the standard of
review is reasonableness and they cite Gendron v Canada (Attorney General),
2012 FC 189 at paragraph 15, 405 FTR 125 [Gendron], for the proposition
that “[t]he judicial discretion in relation with
disciplinary matters must be exercised sparingly and a remedy ought to be
granted only in cases of serious injustice.” The respondents say this
case does not raise any questions of procedural fairness or jurisdiction, only
questions of fact or mixed fact and law.
[16]
The respondents then argue that the offence was
proven. The applicant has never questioned that the order was justifiable and
here the applicant received it three times (twice from the PA System and once
from the officer). Further, the evidence showed that inmates were expected to
return to their cells immediately when an emergency lock up was called and the
video shows that the applicant did not do so. The respondents say it was
reasonable for the chairperson to infer from this that he intended not to
return immediately to his cell and thereby intended to disobey the order.
[17]
Further, the respondents say that the
chairperson both heard and considered the evidence of the officer’s bias, but
nevertheless found the testimony and the video evidence credible. That finding
attracts deference.
[18]
The respondents also advanced an alternative
argument in the event that correctness is the appropriate standard of review.
In this case, they say the applicant was afforded every procedural right; he
was convicted of the same offence with which he was charged and the notice
itself disclosed the evidence against him. He always knew the jeopardy he faced
and the applicant himself led evidence about the events that occurred after the
phone call, so it could not have been unexpected.
VI.
Analysis and Decision
Issue 1 - What is the standard of review?
[19]
I do not entirely agree with either party
regarding the standard of review. For one thing, the applicant’s reliance on
the true questions of jurisdiction category is misplaced. In Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association,
2011 SCC 61 at paragraph 34, [2011] 3 S.C.R. 654, Mr. Justice Marshall Rothstein
nearly abolished that category altogether with these words:
The direction that the category of true
questions of jurisdiction should be interpreted narrowly takes on particular
importance when the tribunal is interpreting its home statute. In one sense,
anything a tribunal does that involves the interpretation of its home statute
involves the determination of whether it has the authority or jurisdiction to
do what is being challenged on judicial review. However, since Dunsmuir,
this Court has departed from that definition of jurisdiction. Indeed, in
view of recent jurisprudence, it may be that the time has come to reconsider
whether, for purposes of judicial review, the category of true questions of
jurisdiction exists and is necessary to identifying the appropriate standard of
review. However, in the absence of argument on the point in this case, it
is sufficient in these reasons to say that, unless the situation is
exceptional, and we have not seen such a situation since Dunsmuir, the
interpretation by the tribunal of “its own statute or statutes closely connected to its function, with
which it will have particular familiarity”
should be presumed to be a question of statutory interpretation subject to
deference on judicial review.
[20]
That category may still have some life left to it
in an appropriate case, but this is not such a case. Rather, the applicant’s
argument is that the chairperson was “granted specific
statutory authority to consider only cases brought before him under charges
described in ss. 25(1) of the CCRR’s [the Regulations],” and that he
decided to “enlarge his jurisdiction” by
considering allegations not set out in the charge sheet. That argument depends
entirely on the broad concept of jurisdiction that the Supreme Court of Canada
has rejected.
[21]
On the other hand, the provision in question is
about notice requirements and is therefore procedural in nature. In Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 43,
[2009] 1 S.C.R. 339 [Khosa], the Supreme Court said that “procedural issues (subject to competent legislative override)
are to be determined by a court on the basis of a correctness standard of
review.” Arguably, the reference to legislative override suggests that
correctness review might be limited to the common law duty of fairness and leave
intact the presumptions regarding statutory interpretation. However, I disagree
for the reasons given by Mr. Justice Ian Binnie in his concurring decision in Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraph 129, [2008] 1 S.C.R. 190 [Dunsmuir]:
[A] fair procedure is said to be the handmaiden
of justice. Accordingly, procedural limits are placed on administrative bodies
by statute and the common law. These include the requirements of “procedural fairness”, which will vary with the type of decision maker and the type of
decision under review. On such matters, as well, the courts have the final say.
The need for such procedural safeguards is obvious. Nobody should have his or
her rights, interests or privileges adversely dealt with by an unjust process.
Nor is such an unjust intent to be attributed easily to legislators.
[22]
I will therefore apply the correctness standard
when applying subsection 25(1) of the Regulations.
[23]
As for the other issues, however, I agree with
the respondents that the reasonableness standard should apply. All of the
applicant’s arguments challenge the chairperson’s findings of fact or
assessment of the evidence. Those types of questions almost always attract a
standard of reasonableness (see Dunsmuir at paragraph 53), and here the
chairperson heard all the evidence orally and was in a much better position
than I am to decide them. Deference is required. This means that I will not
intervene if the chairperson’s decision is transparent, justifiable,
intelligible and within the range of acceptable outcomes (see Dunsmuir
at paragraph 47; Khosa at paragraph 59). As the Supreme Court held in Khosa
at paragraphs 59 and 61, a court reviewing for reasonableness cannot substitute
its own view of a preferable outcome, nor can it reweigh the evidence.
Issue 2 - Did the chairperson err by
convicting the applicant for his actions following the phone call?
[24]
Section 42 of the Act provides the following:
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42. An
inmate charged with a disciplinary offence shall be given a written notice of
the charge in accordance with the regulations, and the notice must state
whether the charge is minor or serious.
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42. Le
détenu accusé se voit remettre, conformément aux règlements, un avis
d’accusation qui mentionne s’il s’agit d’une infraction disciplinaire mineure
ou grave.
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Additional requirements are added by
subsection 25(1) of the Regulations:
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25. (1) Notice of a charge of a disciplinary offence
shall
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25. (1) Notice
of a charge of a disciplinary offence shall
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(a) describe
the conduct that is the subject of the charge, including the time, date and
place of the alleged disciplinary offence, and contain a summary of the
evidence to be presented in support of the charge at the hearing; and
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(a) describe the conduct that is the subject of the charge,
including the time, date and place of the alleged disciplinary offence, and
contain a summary of the evidence to be presented in support of the charge at
the hearing; and
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(b) state the
time, date and place of the hearing.
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(b) state the time, date and place of the hearing.
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[25]
Both sections use the word “shall” which is imperative and makes these requirements
obligatory (see Interpretation Act, RSC 1985, c I-21, s 11). As well,
the purpose of these provisions was identified in Savard v Canada (Attorney General), [1997] FCJ No 105 (QL) at paragraph 6, 128 FTR 271 [Savard].
There, Mr. Justice Yvon Pinard said that it was intended “to
give an inmate charged with a disciplinary offence a specific and particular
means of preparing a full and complete defence.”
[26]
Therefore, how much information needs to be
provided will depend on how much an inmate has to know in order to do so. In
some circumstances, it may be enough simply to state that an order was given
and allege that it was disobeyed, as the respondents allege. For instance, in Richer
v Saskatchewan Penitentiary, 2006 FC 1188 at paragraphs 9 and 10, 300 FTR
249, Mr. Justice Barry Strayer held that the following description of an
offence under subsection 54(b) of the Act was sufficient:
On 2005-07-20 at about 1308 inmate Richer FPS
9278328 refused to provide a urine sample when demanded pursuant to Section
54(b) of the Corrections and Conditional Release Act and Commissioner's
directive 566-10.
[27]
However, other circumstances may require more.
For instance, in Langlois v Canada (Attorney General), 2004 FC 702 at
paragraph 12, 260 FTR 186, Mr. Justice Pierre Blais, then writing for this
Court, said that it was not enough for a notice to disclose only that a knife
was found in an inmate’s cell, but should also have disclosed where the knife
was in the cell and in what circumstances it was discovered.
[28]
Here, I am not satisfied that the notice
adequately disclosed that the applicant could be convicted for his actions
after he had hung up the phone. To the contrary, the notice expressly said that
“I/M OBEYESEKERE proceeded to lock up when the phone was
disconnected from the security post.” That implies that he was
thereafter obeying the order, and that only by his delay in hanging up the
phone was he alleged to be disobedient. Further, he was also provided with the
officer’s signed statement, in which she said: “At this
point, the telephone power was disconnected via the security post switch. It
wasn’t until this time that I/M OBEYESEKERE chose to follow orders given him”
(emphasis added). Far from allowing him to prepare a defence to the charge that
his actions after hanging up the phone were an offence, the notice and the
evidence disclosed to him reasonably led him to believe his actions complied
with the order he was given.
[29]
I have reviewed the notice of a charge given to
the applicant and I cannot find anything to support a charge relating to the
period of time following the applicant’s hanging up the phone, but that is
apparently the time frame in question as the chairperson stated:
It is not only an issue of credibility, because
I think that the video played a very integral part of this particular case. And
it very clearly, in my view, shows Mr. Obeyesekere on the phone, the officer
approaches him and fairly shortly thereafter he is off the phone. At that point
I don’t have a problem with Mr. Obeyesekere and what he is doing. He hung up
the phone fairly quickly after that. It is what he did after that that causes
me concern.
It shows very clearly that he did not return to
his cell forthwith after hanging up the phone. He picked up his laundry. The
video confirms that, and Mr. Obeyesekere gave that in his own evidence.
He then walks around the area where the phones
are for a moment, going in the opposite direction of where his cell is, and
then walking – and I will say very nonchalantly and slowly, in my view – it
would appear, without any care or concern about what was transpiring at that
time.
He finally did lock
up and went to his cell. But did he disobey a direct order to lock up in an
emergency? The only conclusion I can come to after having heard the witnesses
and viewing the video is that he did not obey the officer’s direct order to
lock up immediately.
If he had hung up the
phone and proceeded directly to his cell without picking up his laundry, without
staying in the area where the phones were, then I would have had a reasonable
doubt and certainly I would have been bound by law to resolve it in his favour.
But having seen the portion of the video, that it was agreed to by Mr.
Obeyesekere himself that he did not lock up immediately, but he picked up his
laundry, and the fact that he milled about that area for a minute or so, I am
satisfied beyond any reasonable doubt that Mr. Obeyesekere did in fact disobey
a direct order. Accordingly, the Court will find Mr. Obeyesekere guilty of this
charge.
(Applicant’s application record, pages 65
and 66)
[30]
Therefore, I find the notice of the charge did
not meet the requirements of subsection 25(1) of the Regulations, and it was
unfair for the chairperson to convict the applicant.
[31]
Of course, not all failures to obey an
obligatory statutory process are fatal to a decision (see Society Promoting
Environmental Conservation v Canada (Attorney General), 2003 FCA 239 at
paragraphs 26 to 35, [2003] 4 FC 959). Rather, the consequences of
non-compliance will generally flow from analyzing “the
object of the statute, and the effect of ruling one way or the other”
(see Blueberry River Indian Band v Canada (Department of Indian
Affairs and Northern Development, [1995] 4 S.C.R. 344 at paragraph 42, 130 DLR
(4th) 193 per McLachlin J. (in concurring reasons)).
[32]
Here, these notice requirements exist because it
is important that anyone facing serious penalties have an opportunity to defend
himself or herself (see Gifford v Canada (Attorney General), 2007 FC 606
at paragraph 15, 314 FTR 46). This notice actively misled the applicant into
believing that his conduct after the phone call complied with the order he was
given, and it is impossible to know now whether he could have defended himself
more successfully had he known the full extent of his jeopardy. I am therefore
satisfied that the decision should be set aside.
[33]
Moreover, it would make no sense to refer the
matter back to the officer as no proper written notice of a charge exists for
the charge that he was convicted of by the chairperson. The notice of charge
did not comply with subsection 25(1) of the Regulations. As well, the
chairperson stated that he would have acquitted the applicant of the conduct
relating to the hanging up of the phone.
[34]
As to the applicant’s file being corrected, I
would point out that subsection 24(1) of the Act states the following:
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24. (1) The
Service shall take all reasonable steps to ensure that any information about
an offender that it uses is as accurate, up to date and complete as possible.
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24. (1) Le Service est tenu de veiller, dans la mesure
du possible, à ce que les renseignements qu’il utilise concernant les
délinquants soient à jour, exacts et complets.
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[35]
If the applicant’s file is not updated, he can resort to this section to
ensure that the Correctional Service complies with subsection 24(1).
[36]
Finally, the applicant requested his costs on a solicitor-and-client
basis. I am not persuaded to make such an award. The respondents’ conduct in
this matter does not justify any such order. I will grant the applicant his
costs of the application.
[37]
Because of my finding, I need not deal with the remaining issues of the
case.
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