Date: 20030415
Docket: T-873-02
Neutral citation: 2003 FCT 434
Montréal, Quebec, April 15, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
SERGE AUCLAIR
Plaintiff
and
THE ATTORNEY GENERAL OF CANADA
Defendant
REASONS FOR ORDER AND ORDER
[1] Serge Auclair ("the plaintiff"), while an inmate at the Donnacona Institution, applied for judicial review of an unfavourable disciplinary decision made against him by Mr. Maranda, the independent chairperson ("the chairperson"). The institution is managed by Correctional Service Canada ("CSC"). The CSC is represented by the defendant.
POINT AT ISSUE
[2] I have to decide whether the chairperson erred in finding the plaintiff guilty of a disciplinary offence in the circumstances of the case at bar.
[3] This application is dismissed for the reasons stated below.
FACTS
[4] While an inmate at Donnacona, a report was issued to the plaintiff by a CSC officer ("the report") concerning an offence the officer believed he observed at around 2:15 p.m. on March 23, 2002. According to the officer, the plaintiff was caught in possession of a prohibited liquid concealed in the legs of a pair of jeans. The jeans were themselves hidden in a duct (an air duct). This duct was located in the toilet in the inmates' common room. The plaintiff was surprised by the officer when he was in the process of emptying a bag into the legs of the jeans. According to the allegation, the legs of these jeans were distended by fermenting alcohol (defendant's record, p. 106).
[5] The report was issued to the plaintiff on March 25, 2002 and on March 28 he appeared before the disciplinary court, and through his counsel pleaded not guilty to the charge mentioned in the report.
[6] The hearing before the disciplinary court was held on two occasions, May 2, 2002 and May 9, 2002.
[7] The chairperson found the plaintiff guilty of an offence under paragraph 40(j) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("the Act"). That paragraph reads as follows:
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40. An inmate commits a disciplinary offence who: . . . (j) without prior authorization, is in possession of, or deals in, an item that is not authorized by a Commissioner's Directive or by a written order of the institutional head . . .
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40. Est coupable d'une infraction disciplinaire le détenu qui : . . . j) sans autorisation préalable, a en sa possession un objet en violation des directives du commissaire ou de l'ordre écrit du directeur du pénitencier ou en fait le trafic . . .
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PARTIES' ARGUMENTS
Plaintiff
[8] On the morning of the hearing, counsel for the plaintiff discontinued the arguments raised in his memorandum, except for the following three points: (1) nothing in the report mentioned that he had been notified he would be reported; (2) the defendant argued that the plaintiff was in possession of alcohol, when no substance was analyzed or entered as evidence; (3) the article mentioned in the offence report was not sufficiently precise and consequently the plaintiff was unable to provide a full and complete defence.
Defendant
[9] The plaintiff was well aware of the offence with which he was charged. The wording of the report was clear and unmistakable. A written order of the institutional head prohibits any inmate from having any liquid in his possession that is not sold in the institutional canteen or supplied by the kitchen (defendant's record, p. 105).
[10] The defendant submitted that the plaintiff had been found guilty under this written order at least 19 times since 1997. This order was known to the inmate and his counsel. The inmate knew or should have known that the act he committed was an offence. The requirement of procedural fairness, as stated in Hendrickson v. Kent Institution (1990), 32 F.T.R. 296, was fully observed.
[11] The report was consistent with the requirements of s. 25 of the Regulations. An application for judicial review in which the plaintiff pleaded a defect in the drafting of a report was dismissed by Pinard J. in Pontbriand v. Canada (Attorney General), 2002 FCT 744, [2002] F.C.J. No. 1016 (F.C.T.D.) (QL). The reasoning in that case should be applied here.
[12] Neither the Act nor the Regulations requires the authorities to attach the institutional head's regulations to the offence report.
[13] The defendant cited Opoonechaw v. Stony Mountain Institution (1996), 115 F.T.R. 229, [1996] F.C.J. No. 1049 (F.C.T.D.) (QL), in which McKeown J. dismissed the argument that a report quoting the wrong provision by mistake justified quashing the disciplinary board's decision. It was held that the nature of the charge was clear to the applicant and he had not been deprived of any procedural fairness or natural justice.
ANALYSIS
[14] Section 25(1)(a) of the Regulations provides the following:
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25. (1) Notice of a charge of a disciplinary offence shall |
25. (1) L'avis d'accusation d'infraction disciplinaire doit contenir les renseignements suivants : |
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(a) describe the conduct that is the subject of the charge, including the time, date and place of the alleged disciplinary offence, and contain a summary of the evidence to be presented in support of the charge at the hearing; and |
a) un énoncé de la conduite qui fait l'objet de l'accusation, y compris la date, l'heure et le lieu de l'infraction disciplinaire reprochée, et un résumé des éléments de preuve à l'appui de l'accusation qui seront présentés à l'audition; |
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(b) state the time, date and place of the hearing.
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b) les dates, heure et lieu de l'audition. |
[15] The report stated that the offence took place at 2:15 p.m. on March 23, 2002, in common room 2G of the institution. The witness, officer Fournier, wrote up the description of the offence as follows (defendant's record, p. 104):
[TRANSLATION]
The subject was reported for being in possession of a prohibited liquid not sold in the canteen or provided by the kitchen. He concealed the liquid in pants in the "doc". The "doc" was opened with a homemade tool.
[16] An order by the institutional head indicates the policy prohibiting certain liquids as prohibited items. This order, dating from June 10, 1997, reads as follows (defendant's record, p. 105):
[TRANSLATION]
PROHIBITED ITEMS / CONTRABAND
To ensure a safe environment in the institution, all inmates are strictly prohibited from having in their possession:
(a) any item which may be used to make homemade alcohol;
(b) any liquid not sold in the institution's canteen or provided by the institution's kitchen, and not distributed by the health centre, except water.
Only liquids in their original state are authorized.
Finally, it is also prohibited for inmates to have any liquid in their cells in a receptacle of over 1.5 litres in size.
[17] There is a clear connection between this directive and paragraph 40(j). The item was described at the beginning of the disciplinary hearing on May 2. The plaintiff had an opportunity to prepare his defence, as the hearing continued a week later.
[18] It is clear from reviewing the transcript, at pp. 14, 20, 22, 50 and 51 that the plaintiff was aware of and knew the offence with which he was charged. In particular, pp. 50 and 51 make this quite clear:
[TRANSLATION]
BY CHAIRPERSON:
Q. Then, Mr. Fournier, we have your report. Tell us, for the record, what findings did you make?
A. Ah, well, I, the control officer was Michel Blass, at that time; he said the inmate Auclair was in the storeroom, and he was having trouble seeing him, and he had been in the back for a long time and did not come out. So he told me I should go and see. As a result, I went up to the storeroom. There is a steel door and it was closed. As soon as I approached I saw Auclair who was crouching and was in the process of handling the prohibited liquid. A strong smell of alcohol was coming out. The duct was open. It is two and a half feet by two and a half feet (2 ½ x 2 ½), and in it there were jeans which were tied, I saw it was in fact (inaudible) . . . what he was in the process of doing. I (inaudible) "Fournier, you got me". He did not resist in any way, so I emptied it. The inmates were transferred to a common room (inaudible) . . . (My emphasis.)
[19] Uncontradicted evidence was entered before the chairperson that the plaintiff was found guilty of the same offence 19 times between 1997 and 2001. Referring to Hendrickson, supra, I am satisfied that the plaintiff was not the victim of any serious injustice. At p. 5 of the translation of that decision, para. 10, it reads as follows:
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" . . .
[20] In the present circumstances of the record, the defendant had no duty to provide expert evidence that alcohol was in fact involved. The offence report will suffice, as it indicates that the plaintiff was in possession of a prohibited liquid not sold in the canteen or provided by the kitchen. This was entirely consistent with the memorandum from the Donnacona Institution head (dated June 10, 1997), which was part of the inmate's manual and admitted by the plaintiff.
[21] The plaintiff was able to provide a full and complete defence to the offence alleged.
[22] Consequently, this application for judicial review will be dismissed.
ORDER
THE COURT ORDERS:
1. The application for judicial review is dismissed with costs.
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"Michel Beaudry"
Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: T-873-02
STYLE OF CAUSE: SERGE AUCLAIR v. THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal
DATE OF HEARING: March 11, 2003
REASONS AND ORDER: BEAUDRY J.
DATE OF REASONS: April 15, 2003
APPEARANCES:
Jérôme Parenteau FOR THE PLAINTIFF
Sébastien Gagné FOR THE DEFENDANT
SOLICITORS OF RECORD:
Jérôme Parenteau FOR THE PLAINTIFF
BERNIER, PARENTEAU
Drummondville, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Montréal, Quebec