Docket: T-819-15
Citation:
2016 FC 76
Ottawa, Ontario, January 22, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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JEAN CLAUDE
BRETON
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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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JUDGMENT AND REASONS
[1]
This application for judicial review concerns a
decision of the Independent Chairperson, Mr. Romain [ICP or ICP Romain] of the
Institutional Disciplinary Court at Collins Bay Institution, where, the ICP sentenced
the applicant to seven days of segregation upon accepting a plea of guilty to
threatening to assault a correctional officer in breach of paragraph 40(h) of
the Corrections and Conditional Release Act, SC 1992, c 20 [CCRA].
[2]
The applicant seeks judicial review on the
grounds that the ICP fostered a bias against duty counsel, appearing for the
applicant, thereby compromising the ICP’s ability to preside over the
applicant’s case in a fair manner. Additionally, the applicant argues that the
proceeding was unfair and that the ultimate sanction imposed was unreasonable
based on the evidence and circumstances before the ICP.
[3]
I am of the opinion, albeit with some
reservations, that the applicant has not established an actual or reasonable
apprehension of bias that would warrant the intervention of this Court. However,
I am of the opinion that the ICP erred in determining the sanction to be imposed
and as a result the application for judicial review is allowed.
I.
Background
[4]
The applicant is serving a five year sentence at
the Collins Bay Institution for robbery, aggravated assault, possession of
dangerous weapons, accessory after the fact and failure to comply with a
probation order.
[5]
In December of 2014, while at the Millhaven
Institution, the applicant admits to having made statements and acted in a
manner that could be viewed as a threat to a corrections officer. The applicant
was charged with the disciplinary offence of “fights
with, assaults or threatens to assault another person” [the Disciplinary
Charge] under paragraph 40(h) of the CCRA. The applicant also faces charges under
the Criminal Code, RSC 1985, c C-46 arising out of the same incident.
[6]
As a result of the alleged threats, the
applicant was placed in administrative segregation in Millhaven Institution for
a period of fifty (50) days. He was subsequently transferred to Collins Bay
Institution.
[7]
It was at Collins Bay Institution, on April 22,
2015, where the applicant appeared before ICP Romain, represented by duty
counsel, Ms. Kingston, to answer to the Disciplinary Charge against him. Just prior
to the commencement of the hearing it was agreed between the applicant, duty
counsel and the Court Advisor for the Institutional Disciplinary Court at
Collins Bay Institution and Correctional Manager with Correctional Service of
Canada (CSC), Elliott Gray, that the applicant would plead guilty to the
Disciplinary Charge and a joint submission would be advanced regarding the
sanction to be imposed. The joint submission recommended that the applicant be
given credit for thirty (30) days of time served in segregation (the maximum length
of disciplinary segregation that can be awarded under the CCRA). In other words
the joint submission recommended no further punishment; presumably in
recognition of the fifty (50) days of segregation the applicant had previously served
as a result of the incident that led to the Disciplinary Charge.
[8]
At the commencement of the Disciplinary hearing
there was an issue with the disclosure of material relevant to the Disciplinary
Charge. A request for an adjournment to allow the applicant to receive and review
the material in question was denied by the ICP, however a request by Ms.
Kingston to consult with the applicant outside the hearing room was granted. The
previously non-disclosed material remained in the hearing room in accordance
with the ICP’s practice of not allowing charging documents to be removed.
[9]
On returning to the hearing room the applicant plead
guilty to the Disciplinary Charge. The applicant, through Ms. Kingston, then called
into question the accuracy of the facts as set out in the Disciplinary Charge.
The applicant sought to have a reference to uttering a death threat removed for
the purpose of the guilty plea. The ICP refused to amend the particulars of the
charge without the consent of the charging officer involved and the Institution.
Consent was not provided by the charging officer.
[10]
As a result of the applicant’s concern with the
accuracy of the facts as set out in the Disciplinary Charge the ICP again granted
a request by Ms. Kingston to consult with the applicant. After this consultation
the applicant confirmed his intent to plead guilty to the Disciplinary Charge
as drafted. The ICP accepted the plea of guilt and convicted the applicant.
[11]
The ICP subsequently rejected the joint
submission on the appropriate sanction and imposed seven days of disciplinary segregation
on the applicant.
II.
Impugned Decision
[12]
In addressing the appropriate sanction, the ICP
recognized that he had been provided a joint submission but also noted that he
was not bound by the joint submission. He further noted that there was a need
to take into consideration the safety and security of the Institutional staff
and that this was not the applicant’s first offence involving threats to staff
members. In reaching a decision on sentence the ICP noted that: (1) the charge
was very serious; (2) the sentence had to be fitting and appropriate; (3)
although the applicant had already spent time in segregation that was not a
punishment levied by the court; (4) the court had to levy its own sanction
based on the facts before it; and (5) the punishment of five days segregation imposed
on the applicant for the first incident had not seemed to have deterred the
applicant.
[13]
The ICP imposed a further seven (7) days of
segregation which he described as the “minimum end as
far as [he was] concerned.”
III.
Incidents that Gave Rise to Bias Allegations
[14]
The bias allegations advanced by the applicant arise
as the result of a conflict between the ICP and duty counsel, Ms. Kingston. The
conflict arose from two complaints that Ms. Kingston initiated with the Deputy
Warden in February and March 2015. Ms. Kingston initiated the February, 2015
complaint alleging that in that month she had been subjected to sexual
harassment as a result of ICP Romain perusing a copy of Maxim magazine while in
the court and in her presence. Scott Doering, Court Advisor at Collins Bay
Institution from 2006 to 2015 and current Coordinator of Correctional
Operations at Collins Bay Institution, who was present during the February,
2015 incident, was instructed to speak with ICP Romain and Ms. Kingston
regarding the complaint.
[15]
Ms. Kingston stated she was dissatisfied with
the Institutional response to her complaint.
[16]
ICP Romain became aware that Ms. Kingston had
initiated the February, 2015 complaint.
[17]
In response to Ms. Kingston’s February, 2015
complaint ICP Romain placed a Maxim magazine cover over a men’s fashion
magazine which he then displayed in the hearing room in Ms. Kingston’s presence
in March, 2015. This act led to Ms. Kingston bringing her March, 2015 complaint
to the Deputy Warden. ICP Romain acknowledged his actions in correspondence,
but explained this behaviour as an attempt “to teach
her that “one cannot judge a book by its cover””. However, according to
Ms. Kingston’s affidavit, the Deputy Warden advised there was nothing she could
do about the presence of the Maxim magazine in the courtroom because anyone
could buy the magazine in the store. Mr. Doering stated in his affidavit that
Ms. Kingston declined to participate in a discussion with ICP Romain to achieve
an informal resolution. Mr. Doering also noted in his affidavit that the
magazine is not pornography.
[18]
It appears this was the end of the Institution’s
pursuit of her complaints.
[19]
ICP Romain then sent a series of four letters to
Legal Aid Ontario between March 11, 2015 and March 25, 2015 reporting “great difficulty” with Ms. Kingston, setting out the
circumstances around her complaints to the Deputy Warden, and raising a variety
of concerns with respect to her conduct and behaviour. In this correspondence,
ICP Romain repeatedly requests that Ms. Kingston no longer be assigned as duty
counsel for the Disciplinary Court at Collins Bay Institution.
[20]
In addition to the delivery of the four letters
to Legal Aid Ontario, ICP Romain also prepared a memorandum that he intended to
distribute to all officers at Collins Bay Institution. This memorandum addressed
the incidents that led to Ms. Kingston’s complaints to the Deputy Warden and commented
on Ms. Kingston’s conduct in the role of duty counsel. Specifically the letter alleges
that Ms. Kingston constantly touched inmates inappropriately, used foul
language in off the record conversations, and that she appeared before the
court inappropriately attired on three occasions. Officials within Collins Bay
Institution refused to allow ICP Romain to distribute this letter but he did
attach it to his March 16, 2015 letter to the Area Director of Legal Aid
Ontario.
[21]
Ms. Kingston responded to all of the allegations
contained in ICP Romain’s various letters and the memorandum prepared for
internal distribution within Collins Bay Institution, in a single letter to Legal
Aid Ontario dated April 10, 2015.
[22]
On April 22, 2015 Ms. Kingston appeared before
ICP Romain in her capacity as duty counsel. All three matters involved joint
submissions on sentencing, all of which ICP Romain chose not to follow. The
final of these three submissions involved the applicant. It is against this
backdrop that the applicant advances the bias argument.
IV.
Relevant Legislation
[23]
Sections 38 – 44 of the CCRA establish an inmate
disciplinary regime within the federal corrections system that is intended to
encourage inmate conduct that promotes good order within federal penitentiaries
and contributes to inmate rehabilitation and reintegration into the community.
The relevant portions of the legislation and regulations are reproduced in
Appendix “A” at the end of this Judgment and
Reasons.
V.
Applicant’s Submissions
[24]
The applicant submits that there is a duty to
act fairly in the prison disciplinary context and that fairness in turn
requires that the applicant be made aware of the allegations and evidence
against him. The applicant further submits that disciplinary court proceedings
under the CCRA are subject to section 7 of the Charter and are therefore
to be conducted in accordance with principles of fundamental justice (Hanna
v Mission Institution), [1995] FCJ No 1370 at para 36, 102 FTR 275 (TD).
[25]
The applicant argues that the ICP’s failure to adjourn
the hearing to allow disclosure, or at a minimum afford the applicant and his
duty counsel the opportunity to review the non-disclosed material privately
amounted to a breach of fairness and was fundamentally unjust. Similarly, it is
argued that the applicant was placed in the position of having to choose
between an unfair trial, or pleading guilty to things he did not do in hopes of
receiving a time served sentence. Placing the applicant in this position was
not only fundamentally unjust but prevented the applicant from exercising his
right to a reasonable opportunity to retain and instruct counsel as provided
for at subsection 31(2) of the CCRA.
[26]
The applicant submits that had he been given an
opportunity to review the non-disclosed material he would have realized that
the documents generated at the time of his alleged offence did not indicate
that he had threatened death as alleged in the particulars of the Disciplinary Charge.
This would have likely changed his position on the plea of guilty resulting in
a different decision.
[27]
The applicant further submits he could not
receive a fair trial before ICP Romain due the animosity that existed between
the ICP and the duty counsel representing him, Ms. Kingston. The applicant relies
on ICP Romain’s failure to accept previous joint submissions involving Ms.
Kingston on the day of his hearing as further evidence of the inevitable
unfairness that would occur in his hearing before ICP Romain where Ms. Kingston
acted as duty counsel.
VI.
Respondent’s Submissions
[28]
The respondent submits that the ICP was not
bound to adopt the joint submission and that the decision to impose seven (7)
days of segregation was reasonable on the grounds that it was a transparent,
justifiable and intelligible decision.
[29]
The respondent notes that the recommendation of
the parties was only one factor to be considered by the ICP, who also was
required to consider the seriousness of the offence and all relevant
aggravating and mitigating circumstances (Swift v Canada (Attorney General),
2014 FC 1143 at para 80 [Swift]). The ICP explained why he rejected the
joint submission, concluding the punishment proposed was unduly light and
failed to adequately reflect the applicant’s history of threatening guards.
[30]
With respect to issues of disclosure, the
respondent argues that the applicant raised concerns but subsequently chose to
proceed by way of guilty plea thereby waiving any procedural rights he may have
had in this regard.
[31]
In regard to the alleged bias, the respondent
argues the applicant had an obligation to raise the issue at the first possible
opportunity if there was a belief that ICP Romain was biased against him and
his counsel. The respondent relies on the Federal Court of Appeal’s decision in
Bassila v Canada, 2003 FCA 276 at para 10, 124 ACWS (3d) 833 [Bassila]
to argue that in failing to do so the applicant waived his right to now allege bias
on the part of ICP Romain.
[32]
The respondent concludes by arguing the decision
is reasonable and nothing suggests bias played a role in the ICP’s decision other
than the bald allegation set out in the applicant’s material. The respondent points
the Court to Mr. Doering’s affidavit wherein he reported he saw ICP Romain
accept and reject joint submissions, that he takes the same approach with all
counsel and ensures the proposed sentences are appropriate based on the
severity of the offences, number of offences, past infractions and submissions
from counsel.
VII.
Issues
[33]
The following issues are raised in this
application:
1)
Did the ICP deny the applicant a fair hearing by
failing to provide him with an adjournment in order to remedy the disclosure
issue;
2)
Did the ICP foster bias against Ms. Kingston
thus compromising his ability to preside over the applicant’s case in a fair
manner; and
3)
Was the sentencing decision of the ICP
reasonable?
VIII.
Standard of Review
[34]
The parties submit, and I agree that the
reasonableness standard of review applies to the ICP’s assessment of the applicant’s
guilt and the sentencing decision which engage questions of fact and mixed fact
and law (Angou v Canada (Attorney General), 2006 FC 1462 at para 11, 304
FTR 253; Swift at para 33). The correctness standard applies to the
procedural fairness issues including bias (Canada (Citizenship and
Immigration) v Khosa, [2009] 1 S.C.R. 339 at para 43)
IX.
Analysis
A.
Procedural Fairness in Disciplinary Proceedings
[35]
Before addressing the issues it will be useful
to briefly consider the law governing prison discipline.
[36]
In Terreault v Cowansville Penitentiary,
2003 FC 1529, 250 FTR 207 [Terreault], Mr. Justice Edmond Blanchard sets
out the rules governing prison discipline at paragraph 13 of that decision:
13 According to the respondents, the
rules governing prison discipline are clearly
explained in Hendrickson v. Kent Institution, [1990] F.C.J. No. 19
(T.D.) on line: QL:
The principles governing the
penitentiary discipline are to be found in Martineau No. 1 (supra) and
No. 2 [Footnote: [1979] 50 CCC (2nd) 353 (SCC)]; Re Blanchard and
Disciplinary Board of Millhaven Institution [Footnote: [1982] 69 CCC (2d) 171];
Re Howard and Presiding Officer of Inmate Disciplinary Court of Stony Mountain Institution
[Footnote: [1985] 19 CCC (3d) 195], and may be summarized as follows:
1. A hearing conducted by an
independent chairperson of the disciplinary court of an institution is an
administrative proceeding and is neither judicial nor quasi-judicial in
character.
2. Except to the extent there
are statutory provisions or regulations having the force of law to the
contrary, there is no requirement to conform to any particular procedure or to
abide by the rules of evidence generally applicable to judicial or
quasi-judicial tribunals or adversary proceedings.
3. There is an overall duty to
act fairly by ensuring that the inquiry is carried out in a fair manner and
with due regard to natural justice. The duty to act fairly in a disciplinary
court hearing requires that the person be aware of what the allegations are,
the evidence and the nature of the evidence against him and be afforded a
reasonable opportunity to respond to the evidence and to give his version of
the matter [emphasis added].
4. The hearing is not to be
conducted as an adversary proceeding but as an inquisitorial one and there is
no duty on the person responsible for conducting the hearing to explore every
conceivable defence, although there is a duty to conduct a full and fair
inquiry or, in other words, examine both sides of the question.
5. It is not up to this Court to
review the evidence as a court might do in a case of a judicial tribunal or a
review of a decision of a quasi-judicial tribunal, but merely to consider
whether there has in fact been a breach of the general duty to act fairly.
6. The judicial discretion in
relation with disciplinary matters must be exercised sparingly and a remedy
ought to be granted “only in
cases of serious injustice” (Martineau No. 2, p.
360). [My emphasis.]
B.
Issue 1 – Denial of Adjournment
[37]
The affidavit of Mr. Elliott Gray refers to “the documents from his [the applicantʼs] segregation
placement as a result of the incident”. These appear to be the documents
that were not disclosed to the applicant however the documents do not form part
of the record before this Court.
[38]
The applicant demonstrates in his Memorandum of
Fact and Law that there is a discrepancy between the information contained in the
Charge Sheet and the information in Mr. Gray’s affidavit, which relies on the segregation
placement documents that the applicant did not receive prior to the
Disciplinary Hearing. The segregation placement documents, according to the affidavit
of Mr. Gray, do not indicate that the applicant threatened death as is alleged
in the Charge Sheet. The failure of the parties to include the documentation
underpinning the irregular disclosure has unfortunately deprived this Court of
the ability to determine the nature of the discrepancy between the segregation
placement documents and the Charge Sheet.
[39]
However, I am satisfied that despite the lack of
complete disclosure in advance of the Disciplinary hearing, evidence on the
record establishes that the applicant was aware of the case to be met. Ms.
Kingston states in her affidavit that:
Prior to the commencement of the trial, the Applicant
and I reviewed the charge sheet and reports in Mr. Gray’s presence and had
off-the record discussions with Mr. Gray [emphasis added]. A joint
submission of credit for 30 days time served in segregation on a guilty plea
was agreed upon. Again, Mr. Romain ignored the joint submission and imposed a
further seven days in segregation.
[40]
While the applicant argues at paragraph 31 in
his Memorandum of Fact and Law that “the disclosure
that the applicant was not permitted to view would likely have changed his
position on pleading”, there is no evidence to this effect in either the
applicant’s affidavit in the affidavit of Ms. Kingston or in any other document
in the record before this Court.
[41]
The duty to act fairly in disciplinary
proceedings under the CCRA requires that the person be aware of what the
allegations are, the evidence and the nature of the evidence against the
individual and that the individual be afforded a reasonable opportunity to
respond to the evidence and give his/her version of the matter (Terreault
at para 13). It has also been held in the jurisprudence that an ICP has the
discretion to order or deny an adjournment and the Court will only grant a
remedy in the case of a denial where irreparable harm has resulted (Goulet v
Canada (Correctional Service), [1996] FCJ No 1307 at paras 19-20, 121 FTR
54 (TD)).
[42]
In this case I am of the view that while
disclosure occurred very late in the process: it did occur just prior to the
hearing, as reflected in Ms. Kingston’s affidavit. As such, I am satisfied that
the applicant had at least the opportunity to become aware of the discrepancy
between the Charge Sheet and the segregation placement documents. I further
note that although the ICP denied the adjournment request, he did grant the
applicant’s request to have an opportunity to consult with duty counsel after
being made aware of the disclosure issue. It was after this consultation that
the applicant pleaded guilty to the Disciplinary Charge.
[43]
I am therefore not persuaded that the ICP, in
exercising his discretion to deny the request to adjourn the proceeding to
another day, caused the applicant irreparable harm. As such I am of the view
there was no breach of procedural fairness.
[44]
In the alternative, I agree with the respondent,
that the applicant waived issues regarding the improper disclosure when he
elected to proceed with a guilty plea and sentencing as a result.
C.
Issue 2 – Bias
[45]
The test for bias was recently restated by
Justice Abella on behalf of a unanimous Supreme Court of Canada in Yukon
Francophone School Board, Education Area #23 v Yukon (Attorney General),
[2015] 2 S.C.R. 282 [Yukon]:
20 The
test for a reasonable apprehension of bias is undisputed and was
first articulated by this Court as follows:
... what would an informed person,
viewing the matter realistically and practically -- and having thought the
matter through -- conclude. Would he think that it is more likely than not that
[the decision-maker], whether consciously or unconsciously, would not decide
fairly. [Citation omitted; Committee for Justice and Liberty
v. National Energy Board, [1978 1 S.C.R. 369] , at p. 394, per de
Grandpré J. (dissenting)]
[…]
26 The
inquiry into whether a decision-maker's conduct creates a reasonable
apprehension of bias, as a result, is inherently contextual
and fact-specific, and there is a correspondingly high burden of proving the
claim on the party alleging bias: see Wewaykum, at
para. 77; S. (R.D.), at para. 114, per Cory J. As Cory J.
observed in S. (R.D.):
... allegations of perceived
judicial bias will generally not succeed unless the impugned
conduct, taken in context, truly demonstrates a sound basis for
perceiving that a particular determination has been made on the basis of
prejudice or generalizations. One overriding principle that arises from these
cases is that the impugned comments or other conduct must not be looked at in
isolation. Rather it must be considered in the context of the
circumstances, and in light of the whole proceeding. [Emphasis added; para.
141.]
[46]
The Yukon decision was considered by
Justice Russel Zinn in Ali v Canada (Minister of Citizenship and
Immigration), 2015 FC 814 where he emphasizes at paragraph 23 the necessity
of considering the conduct of the entire proceeding: “The
jurisprudence is clear that when considering whether there is a reasonable
apprehension of bias, the conduct of the entire proceeding must be examined in
a careful and thorough manner. The record must be considered in its entirety to
ascertain whether the cumulative effect of any transgressions or improprieties
lead to the apprehension of bias.”
[47]
In examining the circumstances in this case, it is
clear that there was an ongoing conflict between ICP Romain and duty counsel,
Ms. Kingston. This conflict primarily related to ICP Romain’s possession of a Maxim
magazine in the hearing room which Ms. Kingston found offensive and led to Ms.
Kingston’s complaint to Institutional authorities.
[48]
ICP Romain further aggravated the situation by possessing
a copy of the Maxim magazine cover in the hearing room on a second occasion.
[49]
The applicant relies on evidence relating to
this conflict to establish bias. In addition, the applicant also referred the
Court to Romain v Ontario (Lieutenant Governor), [2005] OJ No 3721, 258
DLR (4th) 567 (Div Ct) to submit that ICP Romain has previously engaged in
egregious conduct when functioning in the capacity of a Justice of the Peace
many years ago. I have reviewed the applicant’s submissions in this regard but
do not find the conduct of ICP Romain when acting in the capacity of a Justice
of the Peace many years ago to be of relevance in addressing the question of
bias that has been raised in the context of this application.
[50]
In advancing an allegation of bias, the party
alleging bias must overcome a presumption of impartiality. That presumption is
not easily displaced, placing a high burden on the alleging party (Yukon
paras 25 and 26).
[51]
In this case the applicant established a
significant and unresolved conflict as between ICP Romain and Ms. Kingston. However,
this conflict cannot be considered in isolation. It is also necessary to
consider what occurred at the hearing and the actions of the applicant and Ms.
Kingston in light of the allegation of bias that is now being advanced.
[52]
The transcript of the hearing demonstrates that
ICP Romain was professional and courteous in addressing the issues before him.
He did not summarily dismiss the joint submission on punishment but rather
considered the submission and advanced his reasoning for choosing to depart
from the joint submission. The transcript also reveals that Ms. Kingston did
not, at any point in the course of the hearing, raise bias as a concern.
Similarly there is no evidence to indicate that she identified this as a
concern in her consultations with the applicant. As noted by the Federal Court
of Appeal in Bassila at paragraph 10, “a party who
believes a presiding judge has created a reasonable apprehension of bias must
make that position known at the first opportunity. One cannot secretly nurse a
reasonable apprehension of bias for the purpose of raising it in the event of
an adverse result.”
[53]
The evidence of the respondent’s affiants, Mr.
Doering and Mr. Gray, was to the effect that ICP Romain’s approach to the
joint submission was fully consistent with the manner he approached these
submissions in other cases. Their evidence is to the effect that ICP Romain
generally ensured joint submissions were appropriate in the context of the
offence before him, rejecting the submissions when necessary and imposing
increased or decreased penalties as appropriate. They conclude that ICP
Romain’s approach in the applicant’s case was consistent with his approach in
other cases and with other counsel before him.
[54]
I am certainly troubled by the ICP’s conduct in
response to Ms. Kingston’s complaint. His behaviour as reflected in the record was
in my view both unbecoming and reflects poor judgment by someone fulfilling the
role ICP Romain has been entrusted with within the CCRA disciplinary system.
However, despite my significant discomfort with ICP Romain’s behaviour in
response to Ms. Kingston’s complaint, I am not satisfied that the applicant has
met the high burden of establishing that a reasonable, fully informed bystander
would conclude that ICP Romain was biased (Bassila at para 9).
D.
Issue 3 – Reasonableness of the Decision
[55]
After reviewing the transcript of the hearing, I
am of the view that the ICP: (1) improperly fettered his discretion; and (2) failed
to consider all measures taken by the CSC in connection with the offence and
before the disposition of the disciplinary charge as required by subsection 34(f)
of the CCRR.
(1)
Improper Fettering of Discretion
[56]
In determining that the joint submission would
not be accepted and imposing a punishment of seven days of segregation the ICP
states that: “Now he may have spent time in and
obviously I agree that he spent time in segregation when the offense first
committed but that’s still not a sanction that’s levied by the court. The
court has to levy it’s own sanction based on the facts that it has before it
and that’s exactly what I have to do here, today”. [Emphasis added.]
[57]
The ICP’s statement indicates that he believes
he is bound to impose an additional punishment in this case as opposed to
recognizing the time in segregation already served. In this regard, I note that
the fifty (50) days of segregation significantly exceeds the maximum period of
thirty (30) days available as a disciplinary punishment under paragraph
44(1)(f) of the CCRR. In light of the administrative punishment already imposed
and served, the ICP was under no obligation to levy an additional sanction
having accepted the applicant’s plea of guilt.
[58]
The ICP’s belief that he was required to impose
an additional sanction is, in my opinion, a reviewable error.
(2)
Failure to consider all measures taken in
connection with the offence
[59]
The record also indicates that the applicant was
facing criminal charges for the same incident that formed the subject matter of
the Disciplinary Charge. The initiation of criminal charges is, in my view, a
measure taken by the CSC in connection with the offence that was before ICP
Romain. Subsection 34(f) of the CCRR requires the ICP to consider all such
measures before imposing a punishment:
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34. Before imposing a sanction described in section 44 of the Act,
the person conducting a hearing of a disciplinary offence shall consider
(f) any measures taken by the Service in connection with the
offence before the disposition of the disciplinary charge;
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34. Avant d’infliger une peine visée à
l’article 44 de la Loi, la personne qui tient l’audition disciplinaire doit
tenir compte des facteurs suivants :
f) toute mesure prise par le Service par rapport à cette
infraction avant la décision relative à l’accusation;
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[60]
There is no evidence on the record to indicate criminal
charges were considered by the ICP contrary to the obligation imposed by
regulation.
(3)
Conclusion
[61]
I am of the opinion that the ICP’s errors render
the decision to impose seven (7) days of segregation as a punishment
unreasonable. In reaching this result I am mindful that decisions in the CCRA
disciplinary process are to be extended a significant degree of deference on
judicial review. However, deference should not shield a decision from review
where the decision maker has fettered his or her discretion or failed to comply
with statutory provisions or regulations.
X.
Costs
[62]
In oral argument, the parties addressed the
question of costs and agreed that while the successful party should be awarded
costs, any reward should be nominal in light of the applicant’s circumstances.
Costs are to be awarded to the successful party in the amount of $100.
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