Federal Court Decisions

Date: 19971204

Docket: T-620-97

     IN THE MATTER OF AN APPLICATION FOR

     RELIEF IN THE NATURE OF CERTIORARI AND

     RELIEF IN THE NATURE OF MANDAMUS

BETWEEN:

     RICHARD DEAN BEAUDOIN, SHANE TRAVIS WAECHTER,

     JOHN LEWIS, AND RANDY RICHARDS

                                             Applicants

AND:

     CLIVE L. RIPPON IN HIS CAPACITY AS INDEPENDENT

     CHAIRPERSON OF THE DISCIPLINARY COURT OF

     WILLIAM HEAD INSTITUTION AND THE

     CORRECTIONAL SERVICE OF CANADA

                                             Respondent

     REASONS FOR ORDER

GIBSON J.:

[1]      These reasons arise out of a single application for judicial review of four decisions of the Independent Chairperson of the Disciplinary Court of William Head Institution, a medium security correctional facility of the Correctional Service of Canada, whereby the Independent Chairperson convicted each of the applicants of the disciplinary offence of failing or refusing to provide a urine sample when demanded pursuant paragraph 54(a) of the Corrections and Conditional Release Act¹ (the "Act"). The decisions are effective the 16th of March, 1997.²

[2]      The relevant provisions of the Corrections and Conditional Release Act (the "Act") read as follows:

2. (1)      In this Part, .... "intoxicant" means a substance that, if taken into the body, has the potential to impair or alter judgment, behaviour or the capacity to recognize reality or meet the ordinary demands of life, but does not include caffeine, nicotine or any authorized medication used in accordance with directions given by a staff member or a registered health care professional; .... 40. An inmate commits a disciplinary offence who .... (k) takes an intoxicant into the inmate's body; (l) fails or refuses to provide a urine sample when demanded pursuant to section 54 or 55; .... 54. Subject to section 56 and subsection 57(1), a staff member may demand that an inmate submit to urinalysis (a) where the staff member believes on reasonable grounds that the inmate has committed or is committing the disciplinary offence referred to in paragraph 40(k) and that a urine sample is necessary to provide evidence of the offence, and the staff member obtains the prior authorization of the institutional head; .... 56. Where a demand is made of an offender to submit to urinalysis pursuant to section 54 or 55, the person making the demand shall forthwith inform the offender of the basis of the demand and the consequences of non-compliance. 57. (1) An inmate who is required to submit to urinalysis pursuant to paragraph 54(a) shall be given an opportunity to make representations to the institutional head before submitting the urine sample.

2. (1) Les définitions qui suivent s'appliquent à la présente partie. .... "_substance intoxicante_" Toute substance qui, une fois introduite dans le corps humain, peut altérer le comportement, le jugement, le sens de la réalité ou l'aptitude à faire face aux exigences normales de la vie. Sont exclus la caféine et la nicotine, ainsi que tous médicaments dont la consommation est autorisée conformément aux instructions d'un agent ou d'un professionnel de la santé agréé. .... 40. Est coupable d'une infraction disciplinaire le détenu qui_: .... k) introduit dans son corps une substance intoxicante; l) refuse ou omet de fournir l'échantillon d'urine qui peut être exigé au titre des articles 54 ou 55; .... 54. L'agent peut obliger un détenu à lui fournir un échantillon d'urine dans l'un ou l'autre des cas suivants_: a) il a obtenu l'autorisation du directeur et a des motifs raisonnables de croire que le détenu commet ou a commis l'infraction visée à l'alinéa 40k) et qu'un échantillon d'urine est nécessaire afin d'en prouver la perpétration; .... 56. La prise d'échantillon d'urine fait obligatoirement l'objet d'un avis à l'intéressé la justifiant et exposant les conséquences éventuelles d'un refus. 57. (1) Lorsque la prise est faite au titre de l'alinéa 54(a), l'intéressé doit, auparavant, avoir la possibilité de présenter ses observations au directeur.

No allegation of failure to meet the requirements of section 56 and subsection 57(1) of the Act was before the Court on this application.

[3]      The facts leading to the charges against the applicants were not in dispute. On the 13th of January, 1997, the applicants were four of the six residents in living unit E-6 at William Head Institution. At approximately 7:15 p.m. on that day, three of the applicants were on the ground floor in the living area of the unit. The fourth was in his bedroom on the second floor of the unit. A Correctional Officer entered the living unit at the second floor level from a connecting unit. The Correctional Officer smelled an odour of hashish in the upstairs hallway. The Correctional Officer confirmed the smell of hashish with another Correctional Officer. He then obtained the "prior authorization of the Institutional Head" contemplated by paragraph 54(a) of the Act. Without further investigation, the Correctional Officer then demanded a urine sample from each of the six residents. All four applicants refused to provide a urine sample. One of the applicants insisted on being examined by a nurse. When so examined, the nurse expressed the opinion that the applicant did not look like he had ingested an intoxicant. Two of the applicants requested the opportunity to make representations to the Institutional Head in accordance with subsection 57(1) of the Act. They were provided with the opportunity. During the course of the meeting with the Institutional Head, the Institutional Head offered the opinion that neither of them showed signs of having ingested an intoxicant. During the proceedings before the Independent Chairperson, the Correctional Officer who had demanded the urine samples acknowledged that none of the four showed signs of having ingested an intoxicant. Further, he acknowledged that he did not have "reasonable grounds" to believe that any one of the applicants had ingested an intoxicant.

[4]      On the basis of the foregoing, the Independent Chairperson convicted each of the applicants of failing or refusing to provide a urine sample when demanded pursuant to paragraph 54(a) of the Act and fined them each $30.00.

[5]      On the basis of the undisputed facts, counsel for the applicants argued that the Independent Chairperson committed a reviewable error in convicting the applicants in that, first: the Correctional Officer who demanded that the applicants submit to urinalysis had no reasonable grounds for believing that any of the applicants had committed the disciplinary offence of taking an intoxicant into the body and second; the evidence simply failed to establish that provision of a urine sample for purposes of urinalysis was necessary to provide evidence against each of the applicants of the offence of taking an intoxicant into the body.

[6]      Counsel for the respondents argued that the decision of the Independent Chairperson was reasonably open to him and in the result should not be disturbed on judicial review.

[7]      Subsection 43(3) of the Act provides that a person such as the Independent Chairperson whose decisions are under review on this application shall not find an inmate guilty of a disciplinary offence unless she or he is "...satisfied beyond a reasonable doubt, based on the evidence presented at the hearing, that the inmate committed the disciplinary offence in question." In Barnaby v. Canada,³ Mr. Justice Joyal wrote:

Counsel for the applicant ably argued before me that a finding of guilt by a tribunal, based substantially on the duty nurse's, evidence, was an egregious error which makes the finding open to judicial review. The standard imposed by the statute that the presence of an intoxicant in the body of the applicant must be found beyond a reasonable doubt has, in counsel's view, not been met. ...

I will admit to some problem which applicant's counsel raises. We traditionally view "beyond a reasonable doubt" as imposing a hefty burden on the prosecution, and numerous safeguards are in place to ensure that that principle is respected. Counsel for the respondents, however, argues in equally able terms that the role of the Court in a judicial review application is not one to be equated with the role of an appeal court. Curial respect for an administrative tribunal's disciplinary decisions in a correctional environment is as high as for any other tribunal. The tribunal is set up as an internal investigative or inquisitorial process. The rule of evidence in criminal matters does not apply to it. The tribunal may admit any evidence which it considers reasonable or trustworthy.

The verdict of the tribunal is based on circumstantial evidence. According to counsel for the respondents, there is nothing wrong in reaching such a verdict if there is evidence on which that kind of judgment call may be made. It does not really matter whether on the face of the same evidence, someone else might have reached a different conclusion. It is only necessary to be seized of sufficient evidence on which the necessary and ultimate verdict may be made.

[underlining added by me for emphasis]

[8]      I subscribe to the foregoing analysis.

[9]      On the facts of this matter, however, at least in respect of the applicant Beaudoin, there was simply no evidence before the Independent Chairperson on which to conclude that the Correctional Officer who demanded a urine sample from Beaudoin had "reasonable grounds" to believe that Beaudoin had ingested an intoxicant. The only evidence before the Independent Chairperson, that being of a strong odour of hashish in the living unit in question, was that someone had ingested an intoxicant. Six inmates lived in the unit of which Beaudoin was one. There was no evidence to indicate that other inmates in the institution had not been or could not have been present in the living unit in the minutes immediately preceding the time when the Correctional Officer detected the odour of hashish. Thus, certainly anyone of six inmates, because all of the residents of the living unit were apparently present at the time in question, and perhaps more, might have been responsible for the odour of hashish. Beaudoin attests:

At no time during my incarceration have I ever been charged with a single disciplinary offence, nor has it ever been suggested that I am involved with drug usage and in fact it is noted on my Correctional Service file that substance abuse is not a factor in my case.

[10]      Further, one the applicants suggested to the Correctional Officer that the odour in question was not, in fact, the odour of hashish but a cooking odour resulting from the meal that the residents of the living unit had cooked themselves earlier the same evening.

[11]      In the result, I conclude that the Independent Chairperson committed a reviewable error in convicting Beaudoin in that he had no evidence before him on which to conclude that the Correctional Officer who demanded that Beaudoin submit to urinalysis had reasonable grounds to believe that he had ingested an intoxicant. Evidence to that effect was a clear statutory pre-condition to such a conviction. The same might not be equally true in respect of each of the other applicants. The uncertified transcript of the disciplinary hearing that was before the Court appears to indicate that at least one of the applicants had been previously found to have tested positive for an intoxicant and that this was a matter of record in disciplinary court. That being said, counsel for the respondents did not seek differential treatment on this judicial review in respect of the four applicants. He acknowledged that, whatever the decision of this Court in respect of the applicant Beaudoin might be, the decision in respect of the other applicants should be the same.

[12]      Counsel for the applicants argued that the decisions under review represented violations of the applicants' constitutional rights under sections 7 and 8 of the Canadian Charter of Rights and Freedoms.⁴ Charter arguments were not raised before the Independent Chairperson. In light of the conclusions that I have already reached, I find it unnecessary to address the Charter arguments raised which were not, in any substantive way, responded to on behalf of the respondents. I decline to do so other than by making the following general comments.

[13]      In Jackson v Joyceville Penitentiary,⁵Mr. Justice MacKay wrote at page 97:

The appropriate balance between the public interest in safety and security in penal institutions and the public interest in recognizing expectations of privacy for inmates of institutions may differ in relation to various purposes of urinalysis programmes. Thus constitutional requirements may differ where the purpose is to obtain evidence in the case of an inmate believed to have ingested intoxications from those applicable where the purpose is random testing, the screening of high-risk groups or those with significant community contacts.

[14]      That a privacy interest exists for inmates of federal correctional institutions cannot be said to be in doubt. In Weatherall v Canada (Attorney General),⁶ Mr. Justice LaForest wrote at page 877:

Imprisonment necessarily entails surveillance, searching and scrutiny. A prison cell is expected to be exposed and to require observation. The frisk search, the count and the wind are all practices necessary in a penitentiary for the security of the institution, the public and indeed the prisoners themselves. A substantially reduced level of privacy is present in this setting and a prisoner thus cannot hold a reasonable expectation of privacy with respect to these practices. This conclusion is unaffected by the fact that the practices at times may be conducted by female guards. There being no reasonable expectation of privacy, s.8 of the Charter is not called into play, nor is s. 7 implicated. [underlining added by me for emphasis]

[15]      This position has been adopted in a number of subsequent decisions.⁷

[16]      In R. v Stillman,⁸ a majority of the justices of the Supreme Court found that, although a person who has been arrested, like an inmate of a federal correctional institution, has a lower expectation of privacy, the lower expectation in respect of an arrested person is not so low as to permit a seizure of bodily samples without consent. Mr. Justice Cory, for the majority, wrote:

Obviously an accused person will have a lower expectation of privacy following his or her arrest and subsequent custody. That expectation of privacy will be even lower when serving a sentence after conviction. Therefore, it may well be that certain kinds of searches and seizures may validly be performed on a person in custody which could not validly be performed on persons who have not yet been arrested or convicted. Nevertheless, I am of the view that the appellant's expectation of privacy in this instance, although lower after his arrest, was not so low as to permit the seizure of the tissue. The privacy expectation should not be reduced to such an extent as to justify seizure of the tissue. The privacy expectation should not be reduced to such an extent as to justify seizures of bodily samples without consent, particularly for those who are detained while they are still presumed to be innocent.

[17]      Thus, I conclude, it remains open as to whether the reduced expectation of privacy of an inmate of a federal correctional institution is so low as to permit, without contravention of the Charter, a demand for a urine sample where the individual demanding the sample does not have reasonable grounds to believe that the inmate of whom the sample is demanded has ingested an intoxicant, or in other circumstances where it cannot be demonstrated that the public interest in safety and security in the correctional institution is a predominant interest. The procedures of the Correctional Service of Canada consequent on such a demand, are clearly intrusive into generally applicable privacy expectations.

[18]      In the result, this application for judicial review will be allowed to the extent that the decisions of the Independent Chairperson that are under review will be set aside. On the face of the Originating Notice of Motion, a further relief in the nature of mandamus is sought ordering that the monies paid by the applicants in fines in consequence of their convictions be returned to the applicants' inmate accounts. No evidence was before me that the applicants have either directly paid the fines in question or that monies equivalent to the fines have been taken out of their inmate accounts. In the result, no relief in the nature of mandamus will be granted. That being said, if in fact the fines have been paid, I presume that the respondent Correctional Service of Canada will make appropriate reimbursement in light of the fact that the convictions giving rise to the fines have been set aside.

                              ________________________                                           Judge

Ottawa, Ontario

December 4, 1997

__________________

     ¹      S.C. 1992, c. 20 (as amended)

     ²      The applicants' originating motion commencing this proceeding, as well as the applicants' application record, were clearly deficient in a number of respects. Further, an application such as this in respect of four separate decisions, albeit essentially identical and arising out of a single fact situation, clearly contravenes Rule 1602(4) of the Federal Court Rules . The Court is grateful to counsel for the respondents for filing material that made it possible to proceed with this judicial review despite the deficiencies in the applicants' material. Counsel for the respondent taking no objection to the deficiencies and to proceeding on the one application in respect of four separate decisions, the matter proceeded on the basis of the documentation filed.

     ³      [1995] F.C.J. No. 1541 (QL)

     ⁴      Constitution Act,1982 (R.S.C. 1985, Appendix II, No. 44), being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11

     ⁵      [1990] 3 F.C. 55 (T.D.)

     ⁶      [1993] 2 S.C.R. 872

     ⁷      See Hunter v Canada (Commissioner of Corrections) , [1997] F.C.J. No. 959 (QL); R. v McPherson, [1997] N.W.T.J. No. 29 (QL); and Fieldhouse v The Queen, (1995) 98 C.C.C. (3d) 207 (B.C.C.A.)

     ⁸      [1997] 1 S.C.R. 607