Date: 19981015
Docket: T-65-98
BETWEEN:
| JOHN SCHIMMENS |
Applicant
| - and - |
| ATTORNEY GENERAL OF CANADA |
| and WARDEN OF BOWDEN INSTITUTION |
Respondents
ORDER AND REASONS FOR ORDER
CAMPBELL, J.:
[1] This is an application for judicial review pursuant to s. 18.1 of the Federal Court Act R.S.C. 1985, c. F-7 of a decision of the institutional court of Bowden Institution made on December 17, 1997, in which the Applicant was convicted of an inmate offence contrary to s. 40(h) of the Corrections and Conditional Release Act S.C. 1992 c.20.
[2] A primary argument raised by the Applicant concerns whether the provisions of s. 41(1) of the Act were complied with. These provisions read as follows:
| (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. |
| (2) Where an informal resolution is not achieved, the institutional head may, depending on the seriousness of the alleged conduct and any aggravating or mitigating factors, issue a charge of a minor disciplinary offence or a serious disciplinary offence. |
[Emphasis added]
[3] I agree with the Applicant's argument that s. 41(1) establishes a condition precedent which must be met before the institutional court has jurisdiction to proceed with the hearing of a charge. Thus, I find s. 41(1) creates an obligation on the institutional court member before hearing a charge to investigate to be satisfied that "all reasonable steps to resolve the matter informally, where possible" have been taken.
[4] Respecting the obligation created under s. 41(1), the institutional court member hearing the charge in this case said as follows:
| "I am taking into account the, the, the resolution procedure which was attempted to be followed, which I think is pretty much a administrative thing, doesn't go to the heart of the charge, but I think that some efforts were made to resolve this informally but didn't work. But as I say that does not effect the validity of the charge but I think it is one of the things I can consider as to whether I treat this as a major or minor matter."1 |
[5] With respect, I find that the member misapprehended the meaning of s. 41(1), and as a result, the obligation created by its provisions was not discharged.
[6] Accordingly, I set the decision herein aside and refer the matter back to another member of the institutional court for rehearing in accordance with these reasons.
"Douglas R. Campbell"
Judge
Edmonton, Alberta,
October 15th, 1998.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-65-98
STYLE OF CAUSE: John Schimmens v.
Attorney General of Canada
and Warden of Bowden
Institution
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: October 15th, 1998
REASONS FOR ORDER: Campbell, J.
APPEARANCES:
Simon Renouf for the Applicant
Edmonton, Alberta
Douglas Titosky for the Respondents
Department of Justice
SOLICITORS OF RECORD:
Pringle Renouf for the Applicant
Morris Rosenberg for the Respondents
Deputy Attorney General of Canada
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