Docket: T-2016-15
Citation:
2016 FC 965
Ottawa, Ontario, August 25, 2016
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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MITCHEL TIMOTHY
NOME
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
UPON this motion
from the respondent for an order allowing the Application and quashing the
decision of the Independent Chairperson, sitting at Millhaven Institution,
dated October 27, 2015, convicting the applicant of the disciplinary offence in
subsection 400(f) of the Corrections and Conditional Release Act;
[2]
AND UPON
considering that this Order resolves the Application;
[3]
AND CONSIDERING
that the applicant asserts that he wishes to amend his Notice of Application to
raise other issues;
[4]
AND NOTING that a
similar assertion was made before Prothonotary Mireille Tabib during a hearing
on June 29, 2016, and that she determined in her Order dated June 30, 2016,
that the applicant would have adequate time to move to amend the Notice of
Application if the present motion were heard as planned on August 24, 2016;
[5]
AND CONSIDERING
that no steps have been taken to amend the Notice of Application, and I agree
with Prothonotary Tabib that the time given to seek such amendments was
adequate;
[6]
AND UPON hearing
(i) the applicant’s allegation that all of his property required to prepare for
this hearing and make adequate representations was seized by the Correctional
Service of Canada (CSC) in July 2016; and (ii) the respondent’s assertion that
the applicant’s allegation is untrue;
[7]
AND UPON noting
that there is no evidence to support any finding of wrongdoing by the CSC other
than the applicant’s unsworn submissions to the Court;
[8]
AND CONSIDERING
that, if the applicant has indeed been improperly blocked from making his case,
he may use the grievance process that is available to him for such complaints;
[9]
AND UPON
considering the respondent’s submissions with respect to the third clause of
the ex parte Order of Justice Mactavish, dated June 23, 2016, issued in
connection with this Application and prohibiting the CSC from taking any steps
to destroy any property belonging to the applicant pending further order of
this Court;
[10]
AND UPON
considering the applicant’s allegation that the CSC intends to destroy his
seized property, including property that is relevant to other proceedings,
immediately after any lifting of said third clause;
[11]
AND CONSIDERING
that the usual prohibitions against the destruction of relevant documents and
evidence will remain in place despite any lifting of said clause;
[12]
AND UPON considering
the parties’ submissions on costs (including the applicant’s contentious
allegation that he has been denied access to documents necessary to support his
submissions), and the Court’s discretion over the amount and allocation of
costs and the determination of by whom they are paid;
[13]
AND UPON
considering that the applicant’s additional requests regarding the return of
his seized coffee maker and the payment of back pay are beyond the scope of
this proceeding;
JUDGMENT
THIS COURT’S JUDGMENT is that:
1. The Application is allowed and the decision of the Independent
Chairperson is quashed;
2. The Correctional Service of Canada is directed to make file
corrections with respect to the conviction in the applicant’s Correctional
Service of Canada records;
3. The third clause of the order of Justice Mactavish dated June 23,
2016, prohibiting the Correctional Service of Canada from taking any steps to
destroy any property belonging to the applicant pending further order of this
Court, is lifted, though the usual prohibitions against the destruction of
relevant documents and evidence remain in place;
4. The applicant is awarded costs in the amount of $100.00.
“George R. Locke”
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