Date: 20031114
Docket: A-702-02
Citation: 2003 FCA 429
CORAM: LÉTOURNEAU J.A.
NADON J.A.
PELLETIERJ.A.
BETWEEN:
PATRICK AYOTTE
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
Hearing held at Montréal, Quebec, October 22, 2003.
Judgment delivered at Ottawa, Ontario, November 14, 2003.
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
CONCURRED IN BY: NADON J.A.
PELLETIER J.A.
Date: 20031114
Docket: A-702-02
Citation: 2003 FCA 429
CORAM: LÉTOURNEAU J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
PATRICK AYOTTE
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1] Did the motions judge err in finding that the principles set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742, at page 748 do not apply in the context of a disciplinary court? If so, does such an error warrant setting aside the sentence and ordering a new hearing in this case?
[2] While other criticisms were advanced by the appellant regarding the judgment below, I will consider them in the broader context of the issues set out above.
Facts and proceedings
[3] When the appellant was ordered by a correctional service officer (the officer) on September 7, 2001, to provide a urine sample for analysis, he was serving a sentence at the Drummond Institution. In order to facilitate providing the sample, the appellant was given a glass of water, which he drank. The amount of water given is disputed, however, and was the subject of contradictory testimony on the part of the appellant and the officer. The evidence also reveals discrepancies of opinion between these two witnesses about how the appellant was dressed when the sample was requested. The appellant submits that this fact, found to be irrelevant by the disciplinary court, was to the contrary very relevant in that it was tied to the issue of the officer's credibility and that it could raise a doubt about the amount of water actually given by the officer on this occasion.
[4] The appellant did not provide the requested sample within the allotted time of two hours. He was therefore charged under paragraph 40(l) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act), which reads:
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40. An inmate commits a disciplinary offence who
[...]
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40. Est coupable d'une infraction disciplinaire le détenu qui :
[...]
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(l) fails or refuses to provide a urine sample when demanded pursuant to section 54 or 55;
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l) refuse ou omet de fournir l'échantillon d'urine qui peut être exigé au titre des articles 54 ou 55;
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[5] At the disciplinary hearing, the appellant was called to testify. He claimed that he really wanted to provide the sample, but that he was unable to do so after several attempts. The officer confirmed that the appellant had tried but said that he had only been able to provide a very small amount of urine in a bottle. This apparently occurred before the water was given to him.
[6] At the end of a decision that was brief, terse and somewhat ambiguous, the chairperson of the disciplinary court found the appellant guilty of the offence as charged. He sentenced him to a $25 fine and to 10 days of detention and loss of privileges. An application for judicial review of this decision was made to the Federal Court. On November 25, 2002, the application was dismissed with costs. For all practical purposes where this appeal is concerned, I will concentrate on two of the motions judge's reasons in support of this disputed decision: the chairperson of the disciplinary court did not believe the appellant and he did not have to apply the principles drawn from the caselaw concerning the assessment of contradictory testimony. This brings me to the issues raised in this appeal and to the analysis of the motions judge's decision. But first, it might be useful to look at the context in which the alleged offence occurred and to point out some of the principles that apply to prison disciplinary proceedings.
Some principles applicable to disciplinary proceedings in prisons
[7] The offence that the appellant was charged with was committed in a penitentiary where the maintenance of order and discipline as well as a fast and efficient system for cracking down on offences are necessary to achieve the objectives of the correctional system. In Howard v. Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.), at page 681, the Honourable Mr. Justice MacGuigan described this necessity in colourful language:
Penitentiaries are not nice places for nice people. They are rather institutions of incarceration for the confinement of for the most part crime-hardened and anti-social men and women, serving sentences of more than two years. Reformation fortunately remains an aspiration of the prison system, but the prevalent environment is sadly reminiscent of Hobbes' primitive state of nature before the advent of the Leviathan, where human life was said to be solitary, poor, nasty, brutish and short. In such an atmosphere of discord and hatred, minor sparks can set off major conflagrations of the most incendiary sort. Order is both more necessary and more fragile than in even military and police contexts, and its restoration, when disturbed, becomes a matter of frightening immediacy.
It would be an ill-informed court that was not aware of the necessity for immediate response by prison authorities to breaches of prison order and it would be a rash one that would deny them the means to react effectively.
[8] This said, it is now accepted law, and MacGuigan J.A. himself acknowledged this in a subsequent decision, Re MacDonald et al. v. Kindler (1987), 41 D.L.R. (4th) 78 (F.C.A.), that the chairperson of a disciplinary court has an obligation to act fairly in conducting the proceedings. More specifically, as Mr. Justice Dickson stated in [1980] 1 S.C.R. 602">Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, at page 631, "the simple question to be answered is this: Did the tribunal on the facts of the particular case act fairly toward the person claiming to be aggrieved?"
[9] In Hendrickson v. Kent Institution Disciplinary Court (Independent Chairperson) (1990), 32 F.T.R. 296 (F.C.T.D.), the Honourable Mr. Justice Denault identified the following six principles based on the [1980] 1 S.C.R. 602">Martineau case, supra, in particular, that apply to the prosecution of disciplinary offences in the prison environment:
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.
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" ([1980] 1 S.C.R. 602">Martineau No. 2, p. 360).
[My emphasis]
[10] For the chairperson of the tribunal, who is obliged to conduct a full and impartial hearing, the non-adversarial nature of the prison disciplinary process can give rise to the obligation to question witnesses, including the prisoner charged with the offence: Re Blanchard and Disciplinary Board of Millhaven Institution and Hardtman, [1983] 1 F.C. 309 (F.C.T.D.).
[11] Simply put, the prison disciplinary process calls for flexibility and efficiency, but flexibility and efficiency that must be sought and achieved through procedural fairness and compliance with the mandatory provisions of the law. Now let us turn to see what happened in the case under appeal.
Analysis of the motions judge's decision
[12] The issue of the appellant's credibility, which is one of the two grounds for dismissal cited by the motions judge, is closely related to the principles laid down by the Supreme Court of Canada in R. v. W.(D.), supra. So I will begin with that judgment which, as we will see, addresses the substance of the problems and indicates the solution to this litigation.
[13] The simplest way to proceed with the analysis is to reproduce paragraph 10 of the motions judge's decision, which is challenged by the appellant:
The plaintiff further submitted that the chairperson did not observe the rules of law regarding the determination of credibility, when there were contradictory versions about the quantity of water and the plaintiff's clothing. In this regard, he relied on the rules laid down by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742, at 748. Those rules only represent model directions which a judge may give a jury on the question of credibility and the guilt of the accused in a criminal case, and so do not apply in the context of a disciplinary court.
[14] With respect, the principles laid down by the Supreme Court in R. v. W.(D), supra, are much more than just model directions for the jury in a criminal case. They are in fact a rule of law applicable to all judges and all tribunals called upon to assess and weigh the evidence when the law requires that they be satisfied beyond a reasonable doubt of the accused's guilt. This is the case here.
[15] In fact, subsection 43(3) of the Act provides that the person conducting the hearing of a prison disciplinary complaint "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":
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43. (3) 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.
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43. (3) La personne chargée de l'audition ne peut prononcer la culpabilité que si elle est convaincue hors de tout doute raisonnable, sur la foi de la preuve présente, que le détenu a bien commis l'infraction reprochée.
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[16] The decision-maker's obligation to be satisfied beyond a reasonable doubt of the guilt of the accused as well as the onus imposed on the complainant or on the prosecutor to provide such evidence are inextricably linked to the presumption of innocence: R. v. Lifchus, [1997] 3 S.C.R. 320, at paragraph 13. "It is one of the principal safeguards which seeks to ensure that no innocent person is convicted.": ibidem. The failure to understand and to properly apply this standard of proof irreparably prejudices the fairness of the trial or the hearing: ibidem.
[17] In this case, as previously mentioned, the appellant argued before the disciplinary court that he was unable to provide the requested urine sample despite reasonable efforts. In legal terms, which the appellant did not really use in presenting his arguments even though he was represented by counsel, this defence amounted to saying that the elements of the actus reus of the offence that he was charged with - be it the omission or the act of refusal - were missing.
[18] In fact, to be culpable, the act or omission with which the appellant is charged must be voluntary: see R. v. Daviault, [1994] 3 S.C.R. 57, at pages 74-75; R. v. Théroux, [1993] 2 S.C.R. 5, at page 17; [1980] 2 S.C.R. 513">Rabey v. The Queen, [1980] 2 S.C.R. 513, at pages 522-23. The appellant did in fact maintain before the disciplinary court that his refusal or his omission were involuntary. The chairperson of the court did not make any determination on this defence. He dwelled rather on the contradictory testimony of the officer and the appellant concerning the quantity of water swallowed and found that he did not believe the appellant and that, consequently, he was guilty.
[19] The chairperson of the court could not disregard the only true defence raised by the appellant without compromising procedural fairness and failing in his duty to hold a full hearing. To repeat the remarks of Denault J. in Hendrickson, supra, or of Addy J. in Blanchard, supra, he should have examined "both sides of the question". He could dismiss the defence advanced by the appellant, but he could not disregard it in light of the evidence submitted.
[20] Similarly, he could weigh and assess the evidence submitted by the appellant in support of his defence but he could not ignore it: Canada (Attorney General) v. Primard, [2003] F.C.J. No. 1400; Maki v. The Canada Employment Insurance Commission et al., [1998] F.C.J. No. 1129; Boucher v. Canada (Attorney General), [1996] F.C.J. No. 1378; Lépine v. Canada (Employment and Immigration Commission, [1990] F.C.J. No. 131; Rancourt v. Canada (Employment and Immigration Commission), [1996] F.C.J. No. 1429.
[21] The motions judge should have expressed disapproval of these two failures by the court to consider important and relevant elements of the proceedings, the effect of which was to deprive the appellant of a full and fair hearing, thereby resulting in a "serious injustice" within the meaning of [1980] 1 S.C.R. 602">Martineau, supra, and justifying the relief sought.
[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.
[23] For these reasons, I would allow the appeal with costs and I would set aside the order of the motions judge. Proceeding to render the judgment that should have been rendered, I would allow the appellant's application for judicial review with costs, I would set aside the decision of the disciplinary court made against the appellant made on September 27, 2001 and I would return the matter to the disciplinary court for rehearing.
"Gilles Létourneau"
Judge
"I concur.
M. Nadon J.A."
"I concur.
J.D. Denis Pelletier J.A."
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-702-02
STYLE OF CAUSE: PATRICK AYOTTE v. AGC
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 22, 2003
REASONS FOR JUDGMENT: LÉTOURNEAU J.A.
CONCURRED IN BY: NADON J.A.
PELLETIER J.A.
DATE OF REASONS: November 14, 2003
APPEARANCES:
Daniel Royer FOR THE APPELLANT
Éric Lafrenière FOR THE RESPONDENT
SOLICITORS OF RECORD:
LABELLE, BOUDRAULT, COTÉ ET ASSOCIÉS FOR THE APPELLANT
434 Sainte-Hélène Street
Montréal, Quebec
H2Y 2K7
DEPARTMENT OF JUSTICE FOR THE RESPONDENT
Guy-Favreau Complex
200 René-Lévesque Blvd. West
East Tower, 5th floor
Montréal, Quebec
H2Z 1X4
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