Date: 20031203
Dockets: T-538-03 and T-540-03
Citation: 2003 FC 1412
Between:
MARCEL BOUTIN
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
And between:
YVAN LÉONARD
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
ROULEAU J.
[1] This is an application for judicial review of a decision by the chairperson of the disciplinary court (the chairperson) that the applicants were guilty of the disciplinary offence set out in paragraph 40(c) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act).
[2] The applicants are inmates at the Cowansville Institution.
[3] On January 28, 2003, a correctional service officer noticed that the mattress in the cell of the applicant Léonard was torn in several places. Rubber tubing was found in the mattress. Rubber tubing can be used to make stills. The correctional service officer then reported the applicant Léonard for the offence set out in paragraph 40(c) of the Act: to have wilfully or recklessly damaged or destroyed property that was not his.
[4] On February 17, 2003, the applicant Boutin was also reported by a correctional service officer for the offence set out in paragraph 40(c) of the Act, because his mattress was damaged. As in the case of the applicant Léonard, the torn mattress contained rubber tubing.
[5] On March 6, 2003, a joint disciplinary hearing took place on these two offences before chairperson Pierre Raiche. At this hearing, the applicants said that they had exchanged their mattresses with other inmates and claimed that they had not noticed the holes in the mattresses, which must have already been there. They also denied that the rubber tubing found in the mattresses belonged to them.
[6] The chairperson found the applicants guilty of the disciplinary offences as charged because, given the limited credibility that he assigned to the applicants' stories, he was persuaded beyond a reasonable doubt that the mattresses had been damaged by the applicants.
[7] The applicants contend that the chairperson did not consider their due diligence defence, i.e. that they had received the mattresses from other inmates and that they had not damaged them deliberately or used them recklessly. The applicants argue that in so reasoning, the chairperson had decided on the offence as though it were one of strict liability, thereby violating section 7 of the Canadian Charter of Rights and Freedoms.
[8] Moreover, the applicants submit that the chairperson did not observe the legal rules pertaining to the assessment of credibility when dealing with contradictory stories. In this respect, they rely on the principles set out by the Supreme Court of Canada in R. v. W.(D), [1991] 1 S.C.R.. 742.
[9] Furthermore, the applicants claim that the chairperson erred in convicting them when there was absolutely no evidence concerning certain essential elements of the offence, namely the damage to the mattresses and the deliberate or reckless nature of this damage.
[10] The respondent, on the other hand, submits that this Court must restrict itself to verifying the reasonableness of the chairperson's decision in light of the information gathered, including the information regarding the applicants' defence.
[11] The respondent contends that there is nothing in the chairperson's decision that would suggest that he may have been mistaken about the nature of the applicants' alleged offence. The chairperson, he says, considered the due diligence defence but decided to disregard it because it lacked plausibility, and this is illustrated by his remarks concerning the applicants' credibility.
[12] The respondent argues that this conclusion is reasonable, considering the many contradictions and implausibilities contained in the applicants' stories. Furthermore, the respondent submits that the extraordinary similarities between the defences presented by the two applicants who, incidentally, were represented by the same counsel, is a further element adversely affecting the credibility of both applicants.
[13] Moreover, the respondent contends that circumstantial evidence, as we have in this case, is sufficient for the chairperson to be persuaded beyond a reasonable doubt that the disciplinary offence was committed. Thus, he says, the chairperson does not need information to the effect that the inmate had been seen destroying or damaging property in order to convict him.
[14] In Hendrickson v. Kent Institution Disciplinary Court (Independent Chairperson) (1990), 32 F.T.R. 296 (F.C.T.D.), at pages 298 and 299, Denault J. set out the principles applicable to prison disciplinary proceedings:
The principles governing the penitentiary discipline are to be found in Martineau No 1 (supra) and No.2 (1979), 30 N.R. 119; 50 C.C.C. (2d) 353 (C.S.C.); Re Blanchard and Disciplinary Board of Millhaven Institution (1982), 69 C.C.C. (2d) 171 (C.F. 1re inst.); Re Howard and Presiding Officer of Inmate Disciplinary Court of Stony Mountain Institution (1985), 57 N.R. 280; 19 C.C.C. (3d) 195 (C.A.F.) 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 with disciplinary matters must be exercised sparingly and a remedy ought to be granted "only in cases of serious injustice" (Martineau No 2, p. 360). (My emphasis)
[15] Furthermore, in R. v. W.(D), [1991] 1 S.C.R.. 742, the Supreme Court, per Cory J., sets out the steps to follow in determining the guilt of an accused beyond a reasonable doubt. According to this approach, the judge, even if he does not believe the testimony of the accused, must nevertheless acquit if there is still a reasonable doubt as to guilt. So, even if the testimony of the accused is not credible, the judge must examine it in the context of the evidence as a whole and the reasonable inferences that can be made from each and every element of proof and if, at the end of this review, the judge is not persuaded beyond a reasonable doubt of the accused's guilt, he or she must acquit.
[16] In Ayotte v. Canada (Attorney General) 2003 FCA 429, the Federal Court of Appeal quite recently stated that the principles set out in R. v. W.(D.) are applicable in prison disciplinary proceedings because subsection 43(3) of the Act provides that the person conducting the hearing of a prison disciplinary complaint "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".
[17] At paragraph 19 in Ayotte, Létourneau J. points out that disregarding the principles laid down in R. v. W.(D.) amounts to a serious injustice which will vitiate the decision-making process.
[19] The chairperson of the court could not disregard the only true defence raised by the appellant without compromising procedural fairness and failing in his duty to hold a full hearing. To repeat the remarks of Denault J. in Hendrickson, supra, or of Addy J. in Blanchard, supra, he should have examined "both sides of the question". He could dismiss the defence advanced by the appellant, but he could not disregard it in light of the evidence submitted. (My emphasis)
[18] In this case, the chairperson did not fail to fulfill his obligation to hold a fair hearing. He considered the applicants' defence and decided not to retain it. After reviewing all of the evidence before him, he was persuaded beyond a reasonable doubt of the applicants' guilt.
[19] Thus, it would not be appropriate for this Court to substitute its opinion for that of the chairperson in the assessment of the evidence in the record, especially since this assessment was reasonable. As I have just noted, and contrary to the applicants' allegations, the chairperson did not disregard their due diligence defence. He considered all the aspects of the case and found that the applicants were guilty of the offence, in part because he did not believe them.
[20] Moreover, a guilty verdict for a disciplinary offence can be based solely on circumstantial evidence, if this evidence is made beyond a reasonable doubt.
[21] On the issue of the requirement of circumstantial evidence in absence of direct evidence, Lemieux J., in Bailey v. Canada (Attorney General), [2001] F.C.J. No. 1307, :
In this case, the respondent acknowledges that there was no direct evidence of possession on the part of the applicant. She argues that there was circumstantial evidence of such possession. In The Queen v. Cooper, [1978] 1 S.C.R. 874, Mr. Justice Ritchie quoted what was said by Baron Alderson in Hodge, 168 E.R. 1136, as follows:
Alderson, B., told the jury, that the case was made up of circumstances entirely; and that, before they could find the prisoner guilty, they must be satisfied, 'not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person. (my emphasis)
[22] In this case, considering the chairperson's finding on the credibility of the applicants, it was reasonable to infer that they had deliberately or recklesslydestroyed or damaged the mattresses, based on the following information and circumstances: The applicants' cells are single occupancy and the events they described took place in their cells. They had the care and control of these mattresses. The mattresses were torn and rubber tubing that could be used to build stills was found in them. Therefore, the only logical conclusion, under the circumstances, was that the applicants were guilty.
[23] In short, there is nothing in this case that warrants this Court's intervention.
[24] For these reasons, the applications for judicial review are dismissed.
"P. Rouleau"
JUDGE
OTTAWA, Ontario
December 3, 2003
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKETS: T-538-03 and T-540-03
STYLE OF CAUSE: MARCEL BOUTIN v. ATTORNEY GENERAL OF CANADA
YVAN LÉONARD v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 17, 2003
REASONS: The Honourable Mr. Justice Rouleau
DATE OF REASONS: December 3, 2003
APPEARANCES
Daniel Royer FOR THE APPLICANTS
Labelle, Boudreault,
Côté et Ass.
Dominique Guimond FOR THE RESPONDENT
Department of Justice
SOLICITORS OF RECORD:
Labelle, Boudreault,
Côté et Ass. FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General
of Canada FOR THE RESPONDENT