Date: 20010821
Docket: T-941-00
Neutral citation: 2001 FCT 926
BETWEEN:
ATTORNEY GENERAL OF CANADA,
c/o Correctional Services of Canada
Applicant
- and -
ISAAC DEAS
Respondent
[1] This is an application for judicial review of a decision dated April 28, 2000, rendered by Me Guy Lebel, independent chairperson of the Donnacona Penitentiary Disciplinary Court, acquitting Mr. Isaac Deas (the respondent) of the charge laid against him under subsection 40(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act).
[2] The respondent is an inmate serving time in the federal penitentiary of Donnacona.
[3] On February 8, 2000, the respondent was reported for illegally having in his cell five artisanal knives and one metal rod and was charged accordingly under subsection 40(1) of the Act.
[4] On February 27, 2000, the respondent pled not guilty to the charge laid against him. On April 6, 2000, the respondent appeared before the independent chairperson for his disciplinary hearing.
[5] On April 28, 2000, the respondent was acquitted of the charge laid against him on the sole ground that some of the information appearing on the Inmate Offence Report and Notification of Charge had not been translated in English.
[6] In particular, under the heading "[Physical evidence - Yes or No] If yes, provide a brief description", the information reads: "05 couteaux artisanal [sic], 01 tige de métal".
[7] Under the heading "Disposition", the information reads: "Envoyé à la sécurité préventive."
[8] It is important to note, however, that under the heading "Description of Offence", the information reads:
The above mentioned [sic] is reported for having in is [sic] cell 5 (five) artisanal knifes [sic] and one metal rod.
[9] Under the heading "Particulars of Sentence", the independent chairperson disposed of the charge as follows: "Acquitted default [sic] of translation Physical evidence and disposition".
[10] This decision is the subject of the present application for judicial review.
[11] The nature and functions of disciplinary hearings have been summarized by Denault J. in Hendrickson v. Kent Institution Disciplinary Court (Independent Chairperson), (1990) 32 F.T.R. 296 at 298-299:
The principles governing the penitentiary discipline are to be found in Martineau (No. 1) (supra) and Martineau v. Matsqui Institution Disciplinary Board (1979), 30 N.R. 119; 50 C.C.C. (2d) 353 (S.C.C.); Blanchard v. Disciplinary Board of Millhaven Institution (1982), 69 C.C.C. (2d) 171 (F.C.T.D.); Howard v. Stony Mountain Institution Inmate Disciplinary Court (1985), 57 N.R. 280; 19 C.C.C. (3d) 195 (F.C.A.), 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). [Emphasis added].
[12] In the present matter, I am of the opinion that the respondent was fully made aware of what the allegations were and the nature of the evidence against him and was afforded a reasonable opportunity to respond to the evidence and to give his version of the matter.
[13] As stated by the applicant, it is clear from the evidence on the record that the respondent had to be aware of the physical evidence and the nature of the evidence against him at the time of his disciplinary hearing held on April 6, 2000, considering that:
i) the description of the offence had been translated on the Inmate Offence Report and Notification of Charge;
ii) the objects that were confiscated in the respondent's cell on February 8, 2000, were presented during the disciplinary hearing;
iii) the offence had been reported on the document entitled Involuntary Segregation Placement;
iv) the assessor in the presence of the inmate read the description of the offence on the day (February 17, 2000) the Respondent first appeared before the independent chairperson;
[14] In fact, he or his legal counsel never complained or raised the issue upon signing the Inmate Offence Report or during the disciplinary hearing. The respondent was afforded a reasonable opportunity to respond to the evidence and to give his version of the matter at the hearing.
[15] Therefore, I find that the independent chairperson erred by acquitting the respondent of the charge laid against him on the sole ground that some of the information appearing on the Inmate Offence Report and Notification of Charge had not been translated in English.
[16] This application for judicial review is granted and the matter is referred back for redetermination.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
August 21, 2001.