[1] This is an appeal of a decision of Kelen J. dismissing the appellant's two applications for judicial review of decisions of an Independent Chairperson appointed under section 24 of the Corrections and Conditional Release Regulations (the Regulations) to conduct hearings of disciplinary offences. In the first decision, the appellant was found guilty of failing to provide a urine sample, contrary to subsection 40(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act). In the second decision, the appellant was found guilty of disobeying a justifiable order of a staff member and creating a disturbance likely to jeopardize the security of the penitentiary. The appellant launched an application for judicial review of each of these decisions; the applications were heard together and one set of reasons was issued with respect to both.

[2] Before the Independent Chairperson, the substance of the appellant's argument with respect to the charge of failing to provide a urine sample was that he was denied the right to make representations when three correctional officers aggressively confronted him with a demand for a sample. Before Kelen J., the appellant argued that he was denied natural justice when he was not allowed to call witnesses who, he said, would testify that he had not refused to provide a urine sample.

[3] The Act provides for the taking of urine samples on one of two grounds. A correctional officer who has reasonable and probable grounds to believe that an inmate has taken an intoxicant into his body may demand that the inmate provide a urine sample (paragraph 54(a)of the Act). The Act also contemplates a demand being made in the context of a program of random testing designed to discourage the use of intoxicants in prisons. One of the differences between the two grounds is that an inmate has a right to make representations when subject to a demand for a sample made on reasonable and probable grounds (paragraph 54(a) and subsection 57(1) of the Act). There is no right to make representations when a demand is made on a random basis. Consequently, the appellant had no right to make representations when he was asked to provide a urine sample on a random basis.

[4] The Independent Chairperson found that the appellant had breached subsection 40(l) of the Act by failing to provide a urine sample upon demand. Kelen J. found that the Independent Chairperson's decision on this point was reasonable and therefore not reviewable.

[5] As for the refusal of the Independent Chairperson to allow the appellant to call his witnesses, the statements provided by the witnesses show that their evidence was directed to the issue of the conduct of the accompanying officers and did not address the issue of providing a urine sample. Kelen J. found that there was no denial of natural justice in the Independent Chairperson's conduct of the hearing.

[6] With respect to the second charge, the appellant's argument was that the Independent Chairperson denied him natural justice when he disposed of the charge in his absence. On the date of the hearing, the appellant was being visited by his wife and family. When advised of the fact that the hearing was about to proceed, he was reported to have expressed the view that the Independent Chairperson had no jurisdiction to proceed in his absence. The Independent Chairperson decided that he could proceed in the absence of the appellant, relying on paragraph 42(2)(a) of the Act which allows the hearing to proceed in the absence of the inmate where the latter is voluntarily absent. As to the merits of the charge, the Independent Chairperson found the appellant guilty on the strength of the evidence of the correctional officer involved.

[7] Before Kelen J., the appellant argued that he had not been made aware of the hearing date, an assertion which the learned applications judge did not accept. On the merits of the charge, Kelen J. found that the decision of the Independent Chairperson could not be said to be unreasonable and therefore declined to intervene.

[8] The role of a Court of Appeal in an appeal from a judicial review is to determine if the reviewing court applied the correct standard of review and, if it did not, to review the decision in question applying the standard which the reviewing court ought to have applied (Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at para. 43, 2003 SCC 19">2003 SCC 19). In the present case, Kelen J. decided that the standard of review with respect to issues of fact was patent unreasonableness, and reasonableness simpliciter with respect to questions of mixed fact and law. I agree with his determination of the standard of review as it applied to the issues before him and that he correctly applied the standard. In the circumstances, there is no basis upon which this court can intervene.

[9] The appeal will be dismissed with costs to the respondent, which are fixed at $1,500 all inclusive for both applications.

"J.D. DENIS PELLETIER"

J.A.

"I agree

Marshall Rothstein J.A."

"I agree

B. Malone J.A."

FEDERAL COURT

APPEAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-393-02

STYLE OF CAUSE: IRVINE FORREST v. ATTORNEY GENERAL OF CANADA

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: MARCH 3,2004

REASONS FOR JUDGMENT : PELLETIER J.A.

CONCURRED IN BY: ROTHSTEIN J.A.

MALONE J.A.

DATED: APRIL 19, 2004

APPEARANCES:

MR.IRVINE FORREST FOR APPELLANT

MR.JEFF ANDERSON FOR RESPONDENT

SOLICITORS OF RECORD

IRVINE FORREST FOR APPELLANT

FPS#119382D

WARKWORTH INSTITUTION

CAMPBELLFORD, ONTARIO

MORRIS ROSENBERG FOR RESPONDENT

DEPUTY ATTORNEY GENERAL

OF CANADA

OTTAWA, ONTARIO

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Forrest v. Canada (Attorney General), 2004 FCA 156

Citations2004 FCA 156

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2004 FCA 156