Date: 20010205
Docket: T-322-00
Citation: 2001 FCT 22
BETWEEN:
JAY DURIE
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
ORAL REASONS FOR ORDER
McKEOWN J.
[1] The Applicant seeks judicial review of the June 29, 1999 decision of the Independent Chairperson presiding in Inmate Disciplinary Court at Bath Institution wherein the Applicant was found guilty of failing or refusing to provide a urine sample upon demand, pursuant to section 40(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the "CCRA").
ISSUES
[2] The issues are: the appropriate standard of review; the shifting of the onus of proof; and the standard of proof applicable in inmate disciplinary proceedings.
FACTS
[3] The Applicant is an inmate serving a ten year sentence. On April 12, 1999, the Applicant was required to provide a urine sample pursuant to section 54(b) of the CCRA. The notice was given to the Applicant but he was unable to provide a sample within the two-hour time requirement and was actually given additional time. The Applicant was charged with the disciplinary offence set out by section 40(1) of the CCRA, namely:
| 40. An inmate commits a disciplinary offence who ... (l) fails or refuses to provide a urine sample when demanded pursuant to section 54 or 55; |
40. Est coupable d'une infraction disciplinaire le détenu qui_: ... (l) refuse ou omet de fournir l'échantillon d'urine qui peut être exigé au titre des articles 54 ou 55; |
| [4] On June 29, 1999, the case was heard before the Independent Chairperson. The Applicant pleaded Not Guilty. The Independent Chairperson found the Applicant guilty of this offence. She included in her reasons the following statement: |
| Well, Mr. Napier, you have made an excellent argument but I have found, in the past -- and I think I can't contradict myself on an individual case, that in order for there to be a justifiable reasonable excuse that I do hear evidence of, there has to be some medical evidence and -- well, what's concerning me is that I think Mr. Durie is talking about a medical condition and I don't understand why, at the trial, when this matter's been going on since April, Mr. Durie wasn't able to provide some kind of medical evidence of his lower back condition. Unfortunately, that's the kind of standard that's required. |
| Now, I have to indicate this is an interesting legal issue, you may choose to disagree with my finding in this matter and indicate that -- I guess what I'm saying, in terms of Criminal law is, if this was a Criminal case, you've certainly raised a reasonable doubt; unfortunately, the standard that has been imposed for Chairs of Disciplinary Panels, is a higher standard, in other words, that the excuse given has to be provided with some kind of justification, either medically or some kind of a documentation. Therefore, I'm not able to accept your submission that Mr. Durie should be found Not Guilty of this offence. Although you have, as I said, raised a troubling legal issue in this case. |
| [5] I have accepted the standard of review of this decision to be patent unreasonableness since there is reviewable error no matter what standard of review is applied. The onus of proof is on the Respondent (prosecutor) in inmate disciplinary hearings. The onus shifts to the Applicant (accused) when the Respondent has shown that the offence has taken place and the Applicant is offering lawful excuse. The Chairperson erred in requiring medical evidence and/or documentation. The Applicant is entitled to offer evidence on lawful excuse and the Chairperson should weigh the evidence and determine whether it constitutes lawful excuse. The Applicant is not required to produce medical evidence or documentary evidence, but in many cases it would be in the Applicant's interest to do so. There is no standard type of evidence that is required by law. |
| [6] I do not have to decide whether the above error is sufficient to quash the decision of the Independent Chairperson since she made a more egregious error. Subsection 43(3) of the CCRA provides as follows: |
| (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. [Emphasis added] |
(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 présentée, que le détenu a bien commis l'infraction reprochée. [C'est moi qui mets l'emphase] |
| [7] The Chairperson answered the question properly when she stated: |
| ... in terms of Criminal law ..., if this was a Criminal case, you've certainly raised a reasonable doubt; |
| This is the correct standard of proof and we know her view of the facts when the correct standard is applied. It is not necessary to return this matter for re-hearing in these unusual circumstances. She goes on to state that: "in inmate disciplinary hearings there is a higher standard on the accused"or in other words a lower burden of proof on the Respondent. This does not change the fact that she has already decided the question before her on the correct standard. To subsequently find the Applicant guilty is a case of serious injustice and is one of the rare cases where the exercise of judicial discretion in relation to inmate disciplinary matters is warranted. |
| [8] The application for judicial review is granted. The decision of the Independent Chairperson is quashed and a finding of Not Guilty is substituted. |
| "W.P. McKeown |
| JUDGE |
| Ottawa, Ontario |
| February 5, 2001 |
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-322-00
STYLE OF CAUSE: JAY DURIE v. THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: OTTAWA
DATE OF HEARING: FEBRUARY 1, 2001
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE MCKEOWN
DATED: FEBRUARY 5, 2001
APPEARANCES:
Mr. Michael MandelcornFOR THE APPLICANT
Mr. Michael RoachFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Michael MandelcornFOR THE APPLICANT
Kingston, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada