Date: 20021108
Docket: T-2056-00
Ottawa, Ontario, the 8th day of November 2002
Present: The Honourable Mr. Justice Pinard
Between:
Dave Beaulieu, F.P.S. 077058D
Donnacona Institution
1538 Route 138, Donnacona, Quebec
Applicant
- and -
Correctional Service of Canada
3 Place Laval, Laval, Quebec H7W 1A2
Respondent
- and -
Attorney General of Canada
Supreme Court Building
Ottawa, Ontario K1A 0H9
Respondent
ORDER
The application for judicial review is dismissed, with costs.
"Yvon Pinard"
Judge
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20021108
Docket: T-2056-00
Neutral Citation: 2002 FCT 1149
Between:
Dave Beaulieu, F.P.S. 077058D
Donnacona Institution
1538 Route 138, Donnacona, Quebec
Applicant
- and -
Correctional Service of Canada
3 Place Laval, Laval, Quebec H7W 1A2
Respondent
- and -
Attorney General of Canada
Supreme Court Building
Ottawa, Ontario K1A 0H9
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This application for judicial review is asking that the decision delivered October 12, 2000, by Paul Maranda, the chairperson of the Donnacona Institution disciplinary court (the chairperson), be set aside. The decision sentenced the applicant under paragraph 40(k) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act).
[2] The applicant is currently serving his sentence in the maximum security institution in Donnacona.
[3] On August 23, 2000, at 8:00 a.m., the applicant reported as usual to his work in the penitentiary kitchen. At 11:30 a.m., with the permission of his chef, he went to get some tobacco in his cell, and was still there when the doors of all the cells were closed for the usual rest period prior to the noon meal. Unable to leave and return to work, he had to wait until the doors were opened, around 12 noon. Because of his absence, he was replaced in the kitchen and told to come back around 1:40 p.m. At that time, the applicant made his way toward the kitchen under the surveillance of a senior correctional officer, K. Grenier. She says the applicant displayed the following symptoms at that time: unsteady gait, dilated pupils, flushed eyes, and rather slow speech. However, when she spoke to him, the officer did not note any odour of drugs or alcohol.
[4] At Ms. Grenier's request, the applicant returned to his cell and a nurse came to examine him. The applicant testified that the nurse examined him through the window of his cell, which was partially obscured by some leather. The nurse concluded that the applicant's conduct could not be the result of the administration of drugs at the health centre or of a psychopathological condition, but she did not do any blood or urine analysis. His condition necessitated ongoing medical supervision, so he was taken to the infirmary where he remained until the next day at dinner time.
[5] Owing to his abnormal condition, the applicant was charged with the disciplinary offence in paragraph 40(k) of the Act, taking an intoxicant into his body:
| 40. An inmate commits a disciplinary offence who
[. . .]
(k) takes an intoxicant into the inmate's body; |
|
40. Est coupable d'une infraction disciplinaire le détenu qui :
[. . .]
k) introduit dans son corps une substance intoxicante; |
|
|
|
|
[6] On August 23, 2000, the applicant was tried on his disciplinary charge. The chairperson convicted him and, in addition to a suspended sentence of ten days of confinement, ordered him to pay a $25.00 fine.
[7] In regard to the principles governing discipline in the Correctional Service, I have previously held, in Attorney General of Canada (Correctional Service of Canada) v. Plante (November 10, 1995), T-1452-94, [1995] F.C.J. No. 1509 (QL):
The nature and functions of the disciplinary court in question were well summarized by my colleague Denault J. in Hendrickson v. Kent Institution Disciplinary Court (Independent Chairperson) (1990), 32 F.T.R. 296, at 298 and 299:
The principles governing the penitentiary discipline are to be found in Martineau (No. 1) (supra) and Martineau v. Matsqui Institution Disciplinary Board (1979), 30 N.R. 119; 50 C.C.C. (2d) 353 (S.C.C.); Blanchard v. Disciplinary Board of Millhaven Institution (1982), 69 C.C.C. (2d) 171 (F.C.T.D.); Howard v. Stony Mountain Institution Inmate Disciplinary Court (1985), 57 N.R. 280; 19 C.C.C. (3d) 195 (F.C.A.), 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.
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 to disciplinary matters must be exercised sparingly and a remedy ought to be granted "only in cases of serious injustice" (Martineau No. 2, p. 360). [Martineau v. Matsqui Institution Disciplinary Board (1979), 30 N.R. 119].
(Emphasis added)
[8] The applicable standard of review in such matters was correctly defined by Mr. Justice Kelen in Forrest v. The Attorney General of Canada, 2002 FCT 539, at paragraph 19:
Accordingly, this Court will not intervene on a question of fact, or a question of mixed fact and law unless the Disciplinary Court:
(i) has made the finding of fact in a patently unreasonable manner; or,
(ii) has made the finding of mixed fact and law in an unreasonable manner, i.e. without a reasonable basis.
[9] The applicant submits that the chairperson failed to comply with the principles laid down by the Supreme Court of Canada in The Queen v. W.(D.), [1991] 1 S.C.R. 742, at page 758. However, those principles represent only a model of guidelines that the judge in a criminal case might give the jury in regard to the credibility and guilt of the accused; they do not apply in the context of a disciplinary court.
[10] In regard to the applicant's physical examination in this case, it appears that the chairperson admitted some circumstantial evidence that he considered reasonable and reliable. In the circumstances, not only has the applicant failed to persuade me that the decision is patently unreasonable, but I am of the opinion that the evidence in question was sufficient to allow the chairperson to reasonably conclude as he did.
[11] For these reasons, the application for judicial review is dismissed, with costs.
"Yvon Pinard"
Judge
OTTAWA, ONTARIO
November 8, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-2056-00
STYLE: Dave Beaulieu v. Correctional Service of Canada and Attorney General of Canada
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: October 10, 2002
REASONS FOR ORDER OF PINARD J.
DATED: November 8, 2002
APPEARANCES:
Sébastien Saint-Laurent FOR THE APPLICANT
Sébastien Gagné FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Sébastien Saint-Laurent FOR THE APPLICANT
Québec, Quebec
Morris Rosenberg FOR THE RESPONDENTS
Deputy Attorney General of Canada
Ottawa, Ontario