Date: 20021016
Docket: T-1451-01
Neutral Citation: 2002 FCT1076
Ottawa, Ontario, the 16th day of October 2002
Present: THE HONOURABLE MR. JUSTICE MICHEL BEAUDRY
BETWEEN:
ÉRIC VERREAULT
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review to set aside a decision of a Disciplinary Court at a penitentiary.
THE FACTS
[2] Éric Verreault, an inmate at Cowansville Institution, was searched on April 30, 2001, by a staff member of the Correctional Service of Canada (hereinafter "CSC"). The CSC staff member discovered a bag of urine hidden in the applicant's trousers. Both items were seized. A statement was completed, and Éric Verreault found himself charged with breaching section 40(j) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (hereinafter the "Act").
[3] After a hearing, the Chairperson of the Disciplinary Court at Cowansville decided that the applicant was guilty of the offence and imposed a fine of $40.
ISSUES
[4] The issues are as follows:
1. Is the Chairperson's decision patently unreasonable?
2. Did the Chairperson err in law by failing to consider whether the matter had been resolved informally under section 41 of the Act?
[5] This application for judicial review is dismissed for the following reasons.
APPLICANT'S SUBMISSIONS
[6] The applicant concedes that the search was lawful and that a bag containing urine was found in the trousers he was wearing.
[7] He takes issue with the fact that the Chairperson of the Court considered the seized urine to be prohibited a contrario paragraph 12 of Commissioner's Directive No. 090.
[8] The applicant also maintains that there was a break in the chain of custody of the items seized, because he was not given a copy of the seizure statement, and therefore he cannot be certain that they are his items, or the same items that he had on his person at the time of the seizure.
[9] Éric Verreault also argues that subsection 41(1) of the Act was not followed, and that the Chairperson should have made enquiries as to whether the staff person who seized the items had taken all reasonable steps to resolve the matter informally.
ANALYSIS
[10] First Issue: Is the Chairperson's decision patently unreasonable?
It is appropriate to quote part of the Chairperson's decision containing his remarks about personal property covered in paragraph 12 of Commissioner's Directive No. 090:
[TRANSLATION] . . . these are the events that were put into evidence before the Court concerning the item in question, the Court, the prosecutor submitted Commissioner's Directive No. 090, I had indicated, yes, OK, and that Directive contains the general policy: to ensure that personal property allowances are fair and consistent, to effectively administer inmates' personal property to ensure the safety of people within the institution. There is also a responsability in paragraph 9 of this Directive, every inmate shall agree in writing to accept responsibility for the safekeeping and reasonable use etc. of his/her personal property; and paragraph 11, authorized personal property, the institutional head shall establish, with inmate input, an inmate personal property list and that list in paragraph 12, there is a list of authorized personal property items. So, when you look at that list, you must conclude that à contrario, if the items that were seized are not on the list, they are not authorized, that is an argument that has the advantage of being simple, that has the advantage of being clear, because in a penitentiary if the Correctional Service (inaudible) makes the effort to specifically list the items which are authorized, we must necessarily conclude à contrario that what is not on the list is not authorized, even more so because it is quite clear that the item which was seized, was produced by the inmate for the purpose of circumventing somewhat the urinalysis system. [Emphasis added.]
[11] The applicant disputes this decision, calling it patently unreasonable, because the Chairperson interpreted a contrario paragraph 12 of Commissioner's Directive No. 090.
[12] However, in analyzing this Directive, I noticed the following in paragraph 2:
2.To effectively administer personal property to ensure the safety of any person and the security of the penitentiary. [Emphasis added.]
[13] Paragraphs 9 and 35 of the Directive provide as follows:
9. Every inmate shall agree, in writing, to accept responsibility for the safekeeping and reasonable use of his/her personal property retained in his/her cell. Every inmate shall ensure that his/her personal property records are kept up-to-date by bringing any changes, including finished arts and crafts items retained for personal use, to the attention of the relevant staff.
. . .
35. All cell searches and search plans shall require verification of cell propertyagainst the inmate's personal property record and his/her arts and crafts permit and this directive. [Emphasis added.]
[14] In a penal institution for security reasons, searches are permitted and urinalysis may be required (sections 54 and 55 of the Act and section 71 of the Regulations). In this case, the items seized were the trousers and the bag containing the urine that was inside the inmate's trousers, as stated in the inmate's offence report and the notification of charge. The photograph at page 8 of the respondent's record clearly shows the trousers that were seized as well as the bag inside the trousers. Éric Verreault's trousers were returned to him two weeks after the incident of April 30, 2001, and he now argues that he cannot be certain that the item visible inside his trousers in the photograph is really the item that he had in his possession at the time of the seizure.
[15] I cannot agree with this argument, because it would make no sense that the staff member was obliged to give him back both his trousers and his bag with his urine.
[16] With respect to the a contrario interpretation of paragraph 12 of Commissioner's Directive No. 090, this is of little importance, because the conclusion arrived at by the Chairperson, that is, "was produced by the inmate for the purpose of circumventing somewhat the urinalysis system" is not unreasonable, in my view. Whether we are dealing with an item of personal property that is prohibited or a change in personal property, the Chairperson interpreted a Directive, and that is within his jurisdiction.
[17] Counsel for the applicant relies on Laflamme v. Canada (Attorney General) (1998), 154 F.T.R. 178, [1998] F.C.J. No. 1029 (T.D.) (QL) in which Mr. Justice Pinard allowed an application for judicial review. The facts of that case are completely different from those presented to us here, because Laflamme, supra, involved stolen containers that had been found on the inmate. The documentary evidence was vague because of a mechanical defect and, in addition, the tape recording of the hearing was inaudible. The inmate had repeatedly denied being in possession of the stolen items.
[18] In this case, the applicant concedes that the search was lawful, and that a bag of urine was found on him inside his trousers. Moreover, the documentary evidence is supplemented by the photograph that was filed of the trousers and the bag of urine.
[19] Second Issue: Did the Chairperson err in law by failing to consider whether the matter had been resolved in an informal manner under section 41 of the Act?
Éric Verreault argues that the decision of the Chairperson should be set aside because the Chairperson failed to comply with the provisions of subsection 41(1) of the Act by not first inquiring as to whether the staff member had taken steps to attempt to resolve the matter informally. Subsection 41(1) provides:
| 41. (1) Where a staff member believes on reasonable grounds that an inmate has committed or is committing a disciplinary offence, the staff member shall take all reasonable steps to resolve the matter informally, where possible. [emphasis added]
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41. (1) L'agent qui croit, pour des motifs raisonnables, qu'un détenu commet ou a commis une infraction disciplinaire doit, si les circonstances le permettent, prendre toutes les mesures utiles afin de régler la question de façon informelle. [je souligne] |
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[20] The evidence does not disclose whether the Chairperson made inquiries as to whether steps had been taken to resolve the matter informally, because the recording of the trial is not available.
[21] At the hearing, I told counsel for the parties that I had just rendered a decision (Laplante v. Canada (Attorney General), 2002 FCT 896), in which I concurred with Mr. Justice Campbell in Schimmens v. Canada (Attorney General) (1998), 157 F.T.R. 118, [1998] F.C.J. No. 1486 (T.D.) (QL), that the Chairperson of the Court had an obligation to verify whether the staff member who seized the items could in the circumstances have taken reasonable steps to resolve the matter informally.
[22] In Laplante, both counsel had confirmed to me at the hearing that there had been no attempt to resolve the matter informally. However, in Laplante, the inmate persisted in remaining in segregation, whereas here we are dealing with a lawful seizure of trousers in which a bag of urine was found.
[23] I asked counsel for the applicant what would have been the reasonable steps that the staff member could have taken to resolve the matter informally. The answers that I received were to the effect that the staff member could have made the inmate aware of the situation or asked him questions about his behaviour. I cannot agree with this logic.
[24] I am satisfied that the circumstances in this case were such that the staff member seizing the items was unable to take reasonable steps to resolve the matter informally. In fact, as the Chairperson of the Disciplinary Court noted, the bag in question and the urine were part of an attempt to circumvent the urinalysis system. The staff member had no obligation to make the inmate aware of the situation or to ask him questions about his behaviour, because in my opinion the facts and the inmate's gestures had only one purpose, to thwart the urinalysis.
[25] For all these reasons, the application for judicial review is dismissed without costs.
ORDER
THE COURT ORDERS that the application for judicial review is dismissed without costs.
"Michel Beaudry"
Judge
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: T-1451-01
STYLE OF CAUSE:
ÉRIC VERRAULT
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 17, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE BEAUDRY
APPEARANCES:
Daniel Royer FOR THE APPLICANT
Éric Lafrenière FOR THE RESPONDENT
SOLICITORS OF RECORD:
Daniel Royer
Labelle, Boudrault, Côté & Associés FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg
Deputy Attorney General of Canada
Montréal, Quebec FOR THE RESPONDENT