Date: 20051021
Docket: T-2264-04
Citation: 2005 FC 1436
Vancouver, British Columbia, Friday, the 21st day of October, 2005
Present: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
DARRIN SMITH
Applicant
- and -
ATTORNEY GENERAL FOR CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application made by the Applicant, Darrin Smith, to quash the conviction imposed by the Independent Chairperson (the "Chairperson") of the Disciplinary Court at Kent Institution on November 24, 2004, wherein the Chairperson convicted the Applicant of possession of contraband in the form of a cell phone.
[2] The Applicant is currently a maximum-security inmate at Kent Institution. On September 23, 2004, the warden of Kent Institution authorized a cell search. Mr. Smith had been in his cell for approximately one month prior to the cell search. The Applicant and his cellmate were removed to the gym while their cell was searched. The officers conducting the search found a cell phone charger (the "Charger") and cell phone (the "Phone"). The Phone was found in the garbage can. The Charger was found in a medicine cabinet.
[3] Both the Applicant and his cellmate were charged under section 40(i) of the Corrections and Conditional Release Act ("CCRA") for possession of contraband. At the November 24, 2004 disciplinary hearing, the Applicant was found guilty of possession of contraband and charged $20.00.
DECISION UNDER REVIEW
[4] At the disciplinary hearing the Applicant disputed that he knew the Phone and Charger were in the cell. There were two medicine cabinets in the cell. The cabinet located above the toilet was used by both inmates. The Applicant testified that he never looked inside the second cabinet, which was closed and located behind a television.
[5] The Chairperson found it "extremely difficult" to believe that any inmate in a cell for one month would not examine the closed medicine cabinet (Affidavit of Cidalia Pashalidis ("Affidavit"), Exhibit A at page 17).
[6] The Applicant also said that he generally does not lock his cell when he is not in it, and that this is a common practice among inmates. Mr. Smith testified that after the search another inmate told him that he had left the Phone in Mr. Smith's cell prior to the lockdown. This inmate had allegedly been in the Applicant's cell watching the Applicant's TV and using the Phone because the reception was better in the Applicant's cell.
[7] The Chairperson held that he could not give any weight to the Applicant's testimony that the contraband had been placed in the cell by another inmate unless the Applicant divulged the inmate's name. The Applicant refused to name his peer until he could speak to his peer about identifying him.
[8] The Applicant asked that the hearing be adjourned until he could speak to the unnamed inmate. The Chairperson refused the request noting that the Applicant could have discussed this issue with his peer prior to hearing, and that the Applicant could also have discussed the issue in advance with his counsel, who could have brought an application before the hearing date. The Applicant seems to have explained that he had not spoken to the peer prior to the hearing because the Applicant was in a highly restricted unit.
[9] The Chairperson accepted that the Applicant did not lock the cell when he was not in it. The Chairperson suggested that if the Applicant decided to leave his cell open then he had a responsibility to regularly search it to make sure there was no contraband in it. The Chairperson took judicial notice of the frequency of possession of contraband. He found that leaving a cell unlocked amounted to wilful blindness and that the Applicant should have searched his cell daily for contraband (Affidavit, Exhibit A at pages 17-18).
[10] The Chairperson found that the Applicant lacked credibility when he claimed to have no knowledge of the Phone and Charger. The Chairperson held that control is established by the fact that the Phone and Charger were in the Applicant's cell, and that knowledge can be inferred from this control (Affidavit, Exhibit A at page 21). The Chairperson recognized that an inmate's denial of knowledge can refute the presumption of knowledge so long as the inmate's denial is believed. Since the Applicant's denial of knowledge was not believed in this case, the Applicant had the requisite knowledge.
APPLICANT'S SUBMISSIONS
[11] The Applicant submits that there was no evidence that the cell had been searched in the month that the Applicant had resided in it, nor was there evidence as to how long Mr. Smith's cellmate had occupied the cell.
[12] Counsel for the Applicant also reminds the Court that at the hearing counsel pointed out to the Chairperson that he had not permitted counsel to make submissions before rendering his verdict. The Chairperson agreed to permit counsel to make submissions and to reconsider the matter.
[13] The Applicant's submissions can be grouped into two main arguments:
1. The Chairperson failed to observe procedural fairness
[14] The Applicant submits that the Chairperson failed to observe procedural fairness contrary to s. 31 of the Corrections and Conditional Release Act Regulations, SOR/91-563 ("CCRR"), by rejecting the Applicant's request for an adjournment. Section 31.(1)(a) of the CCRR states:
31. (1) The person who conducts a hearing of a disciplinary offence shall give the inmate who is charged a reasonable opportunity at the hearing to
(a) question witnesses through the person conducting the hearing, introduce evidence, call witnesses on the inmate's behalf and examine exhibits and documents to be considered in the taking of the decision; and¼
[15] The Applicant submits that the Chairperson's refusal to consider the Applicant's reasons for the adjournment request was unreasonable and a violation of the Applicant's right prescribed by s. 31(1)(a) of the CCRR to have a reasonable opportunity to introduce evidence and to call witnesses on his behalf, as well as a failure to observe procedural fairness.
2. The Chairperson erred in law in convicting the Applicant
[16] The Applicant submits that the Chairperson erred in law in convicting the Applicant of a disciplinary offence. The Applicant reminds the Court that the mens rea for the disciplinary offence of possession of contraband is knowledge and the actus reus is control. Both must be proven beyond a reasonable doubt. The Applicant contends that there was insufficient evidence to find the necessary knowledge and control required for a conviction. The Applicant submits that there are several reasonable inferences that could be drawn on the facts. One could infer that Mr. Smith's cellmate had exclusive knowledge and control over the contraband, or that another inmate had placed these items in the cell without the knowledge of the Applicant. Given these reasonable inferences, the Chairperson could not have been satisfied beyond a reasonable doubt that the guilt of the accused was the only reasonable inference to be drawn from the facts.
[17] The Applicant concedes that the Chairperson had the discretion to reject Mr. Smith's credibility, but submits that the Chairperson was still required to undertake a fair examination of the evidence as a whole and ask whether the evidence proved beyond a reasonable doubt that the Applicant was guilty (McLarty v. Canada, [1997] F.C.J. No. 808 at para. 10; R. v. W.(D.), [1991] 1 S.C.R. 742 at para. 2). The Applicant argues that the case against him is made up entirely of circumstantial evidence and that the Chairperson could not have been satisfied beyond a reasonable doubt that the guilt of the accused was the only reasonable inference to be drawn from the proven facts (McLarty, supra, at paras. 10-11).
[18] The Applicant submits that by failing to examine the evidence as a whole the Chairperson effectively shifted the burden of proof to the applicant. According to the Applicants, this incorrect application of the test for proof beyond a reasonable doubt cannot stand as it amounts to an incorrect application of the law. The Applicant reminds the Court that the standard of review for the application of legal tests is correctness (Taylor v. Canada (Attorney General), [2004] F.C.J. No. 1851 at para. 8).
RESPONDENT'S SUBMISSIONS
The Standard of Review
[19] The Respondent submits that in order to quash a Chairperson's decision a judge must find that the Chairperson did not follow a principle of natural justice, or that the decision is patently unreasonable with respect to a finding of fact (Armstrong v. Canada, [1989] F.C.J. No. 403 (F.C.T.D.) (QL) at p. 7; Lafreniere v. Ste-Anne-des-Plaines Institution, [1988] F.C.J. No. 1162 (F.C.T.D.) (QL) at pages 1-2).
[20] The Respondent asserts that hearings conducted by a chairperson of a disciplinary court are administrative rather than judicial or quasi-judicial in nature. In the context of a decision made by Correctional Service Canada officials, the standard of review is patent unreasonableness (Boudreau v. Canada (Attorney General), [2000] F.C.J. 2016 (F.C.T.D.) at pp. 6-7).
1. The Chairperson did not breach procedural fairness
[21] The Respondent submits that the Chairperson had the discretion to refuse the request for adjournment, and that the discretionary decision should not be interfered with by a court unless the discretion was exercised other than judicially (R. v. Johnson (1973) 11 C.C.C. (2d) 101 at p. 105; R. v. Kishayinew 2003 SKQB 39, para. 23; R. v. Desmond 2002 NSCA 31, pp. 5-6).
[22] The Respondent submits that the Chairperson acted reasonably when he rejected the request for an adjournment on the grounds that the Applicant had ample time prior to the hearing to discuss disclosing the name of the Applicant's peer whom the Applicant says left the contraband in his cell.
2. The Chairperson made no errors in law
[23] The Respondent argues that the Chairperson did not err in finding that the Applicant had control and knowledge of the contraband. The Respondent submits that the Chairperson properly examined all of the evidence before him and that, based on all of the evidence, it was not patently unreasonable to conclude that the Applicant was guilty of possession of contraband.
[24] In cases where there is no direct evidence that an accused has knowledge that a contraband or illegal substance exists, the decision-maker may look to all of the relevant and surrounding facts in order to determine if there is sufficient evidence to support the inference that an accused had knowledge (Ryan v. William Head Institution, [1997] F.C.J. No. 1290 (F.C.T.D.) at para. 7).
[25] The Respondent argues that in cases where evidence of opportunity is accompanied by other inculpatory evidence, something less than exclusive opportunity may suffice (Her Majesty the Queen v. Yebes, [1987] 2 S.C.R. 168 referred to in Bailey v. Canada (Attorney General), [2001] F.C.J. No. 1307 (F.C.T.D.) at paragraph 14). In this case, the Chairperson disbelieved the Applicant's explanation and found that the Applicant was at least willfully blind to the presence of the Phone and Charger in the cell. The Respondent submits that according to the reasoning in Yebes, supra the Chairperson can impute knowledge in such a situation.
ANALYSIS
1. The Chairperson did not abuse discretion in denying an adjournment
[26] The case law is clear that it is in the discretion of a trial judge whether or not to grant an adjournment (R. v. Desmond, supra, para. 12; R. v. Johnson, supra; R. v. Kishayinew, supra). This discretion merits high deference.
[27] In Johnson, supra the Court found that a trial judge's refusal to adjourn was an abuse of discretion since there was no suggestion of any fault on the accused's part in not having done everything he could have to avoid an adjournment. In this case, the Chairperson noted that Mr. Smith could have discussed the matter of the unnamed inmate with his lawyer (Affidavit, Exhibit A at page 17). Even if it were accepted that the inmate had no opportunity to talk directly to his peer, the Applicant's failure to discuss the issue with counsel left the Chairperson with the discretion to decide against adjourning the hearing. Mr. Smith could have acted to avoid the need for an adjournment.
[28] The Chairperson's decision not to adjourn the hearing is also consistent with s. 31.(1) of the CCRR. Section 31.(1) requires that the inmate be given a reasonable opportunity at the hearing to call witnesses. The Applicant had a reasonable opportunity to inform the court that he wished to call the unnamed inmate as a witness. The Applicant simply did not seek to take advantage of this opportunity until the day of the hearing.
2. The Chairperson erred in convicting the Applicant
[29] The Chairperson's findings of facts are not questioned. Rather, the Chairperson's application of the facts to the law is at issue, which is scrutinized on the standard of reasonableness simpliciter (Taylor, supra, at para. 6).
[30] The Chairperson gives no weight to the Applicant's submission that the Phone and Charger were placed in his cell by an unnamed inmate. The Chairperson also found that the Applicant's submission that he had never opened the second medicine cabinet was not credible. However, the Chairperson appears to accept that it was possible that another inmate could have entered the cell with contraband (and holds that the Applicant would be willfully blind for keeping his cell unlocked should this be the case). Moreover, the Chairperson does not appear to dismiss the possibility that the Applicant's cellmate was the only inmate with knowledge and control over the Phone and Charger. It appears that the Applicant's cellmate was also charged with the offence of contraband.
[31] In this case, although the Applicant had opportunity to possess the contraband, he did not have the exclusive opportunity to do so. In R. v. Yebes, supra the Supreme Court held that in cases where evidence of opportunity is accompanied by other inculpatory evidence, something less than exclusive opportunity may suffice. The issue in this case is whether the evidence of opportunity is accompanied by sufficient inculpatory evidence to find that the Applicant had possession of the contraband.
[32] Yebes refers to R. v. Monteleone (1982), 67 C.C.C. (2d) 489 (affirmed [1987] 2 S.C.R. 154 (S.C.C.)) at page 493 in support of the proposition that sufficient inculpatory evidence when combined with the evidence of opportunity, may lead to a finding against an accused. InMonteleone, supra, an arson case, the defense provided other possibilities as to how the fire started. The Court held that speculation of possibilities which are not based on evidence places an impossible burden on the prosecution (Monteleone, at page 494).
[33] In the present case, the Chairperson suggested that counsel for Mr. Smith was merely speculating that Mr. Smith's cellmate could have placed the Phone and Charger in the cell (Affidavit, Exhibit A at page 20). But in this case, unlike in Montleone, Applicant's counsel was providing speculation of possibilities which were consistent with the evidence. It was possible for the Applicant's cellmate to have possessed the contraband. It was also possible that another inmate placed the contraband in the cell.
[34] In Bailey, supra the application for judicial review of a decision finding him guilty of possession of a narcotic contrary to s. 40(1) of the CCRA was allowed. An officer searching Bailey felt an object in Bailey's right sleeve. Bailey was submitted to a strip search, but nothing was found on Bailey's person. Ten minutes later, a package containing narcotics was found near the room where the search. The application was allowed because the Applicant's opportunity to possess the narcotic was not exclusive and, consequently, it was unreasonable to conclude that Bailey was guilty beyond a reasonable doubt (Bailey, para. 19).
[35] The reasoning in Bailey aptly applies here. Mr. Smith did not have exclusive opportunity to possess the contraband. The Applicant's alternate possibilities as to how the contraband landed in his cell are based on the evidence and are plausible.
[36] It could be argued that Bailey is distinguishable from the case at hand. In Bailey nothing was found on his person, while in this matter the contraband was found in Mr. Smith's cell. However, in this case, Mr. Smith was double bunked. There has been no refutation of the possibility that Mr. Smith's cellmate could have been the sole person in possession of the contraband and, as I said, was, I believe, also charged with the same offence.
[37] Mr. Smith did not have exclusive opportunity to possess the contraband. Although the case law suggests that in cases where evidence of opportunity is accompanied by other inculpatory evidence something less than exclusive opportunity may suffice, there does not appear to be additional inculpatory evidence in this case that would lead to a conclusion beyond a reasonable doubt that the Applicant had control or knowledge of the contraband.
[38] The Chairperson also held that the Applicant's practice of leaving his cell open when he was out amounted to willful blindness (Affidavit, Exhibit A at pages 17-18). But the rule of willful blindness is narrow, as the Supreme Court held in Sansregret v. The Queen, [1985] 1 S.C.R. 570 at para. 22:
The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realized its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice.
[39] In my view, the Chairperson improperly applied the rule of wilful blindness. The Chairperson took judicial notice of the frequency of contraband at Kent Institution, but it cannot follow that the Applicant thereby had an obligation to search his cell each day for contraband.
[40] The above analysis demonstrates that the Chairperson's decision was unreasonable. Had the Chairperson reviewed the evidence as a whole, he would not have been able to find that it proved beyond a reasonable doubt that the Applicant was guilty.
[41] The Chairperson's finding cannot stand on an examination under the reasonableness standard. Nor can it be sustained under the standard of patent unreasonableness. There were at least two clear possible alternatives that were not explicitly rejected. As the Chairperson's error is easily ascertainable, the decision could not withstand a review under the patent unreasonable standard.
CONCLUSION
[42] The conviction imposed by the Independent Chairperson will be quashed with costs in favour of the Applicant.
ORDER
THIS COURT ORDERS that the conviction imposed by the Independent Chairperson is quashed with costs in favour of the Applicant.
(Sgd.) "Max M. Teitelbaum"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2264-04
STYLE OF CAUSE: DARRIN SMITH
- and -
ATTORNEY GENERAL FOR CANADA
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: October 19, 2005
REASONS FOR ORDER AND ORDER: TEITELBAUM J.
APPEARANCES:
Mark A. Redgwell FOR APPLICANT
Edward Burnet FOR RESPONDENT
SOLICITORS OF RECORD:
Mark A. Redgwell FOR APPLICANT
Barrister & Solicitor
Vancouver, BC
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada