Date: 19980611
Docket: T-2057-97
MONTRÉAL, QUÉBEC, THE 11th DAY OF JUNE 1998
PRESENT: THE HONOURABLE MR. JUSTICE RICHARD
Between:
JACQUES SIMONEAU
Applicant
- and -
CORRECTIONAL SERVICE OF CANADA
- and -
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
CONSIDERING the application for judicial review of a decision of the chairperson of the disciplinary tribunal of Drummond Institution, dated August 27, 1997, finding the applicant guilty of a disciplinary offence with a suspended sentence for failing to provide a urine sample on June 17, 1997;
THE COURT HEREBY ORDERS THE FOLLOWING:
The application for judicial review is allowed and the decision of the chairperson of the tribunal dated August 27, 1997 is set aside.
John D. Richard
Judge
Certified true translation
M. Iveson
Date: 19980611
Docket: T-2057-97
BETWEEN:
JACQUES SIMONEAU
Applicant
- and -
CORRECTIONAL SERVICE OF CANADA
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
RICHARD J.:
[1] This is an application for judicial review of a decision of the chairperson of the disciplinary tribunal of Drummond Institution, dated August 27, 1997, finding the applicant guilty of a disciplinary offence with a suspended sentence for failing to provide a urine sample on June 17, 1997.
[2] It was admitted that the applicant refused to obey the order that he was given on June 17, 1997 to provide a urine sample.
[3] On September 19, 1996, the applicant provided a urine sample, which he was asked to do pursuant to section 54 of the Corrections and Conditional Release Act, and the result was positive.
[4] Subsequently, the applicant was found guilty of the disciplinary offence set out in paragraph 40(k) of the Act1 on October 16, 1996.
[5] Following this conviction, the applicant was required to provide a urine sample every three months until three consecutive negative samples were provided, pursuant to section 71 of the Corrections and Conditional Release Regulations.
[6] The chronology of events then goes as follows:
| 1) November 26, 1996 - first sample required under section 71 of the Regulations - result negative; |
| 2) December 17, 1996 - refusal to provide a second sample; |
| 3) January 22, 1997 - conviction under paragraph 40(a) of the Act for disobeying a justifiable order of a staff member to provide a urine sample; |
| 4) January 31, 1997 - the applicant provided a sample for which the result was positive; |
| 5) February 19, 1997 - conviction for an offence under paragraph 40(k) of the Act; |
| 6) February 24, 1997 - sample provided and result negative; |
| 7) April 24, 1997 - sample provided and result negative; |
| 8) May 16, 1997 - sample provided and result negative; |
9) June 17, 1997 - sample requested and refused;
| 10) August 13, 1997 - conviction under paragraph 40(a) of the Act for the June 17, 1997 refusal. |
[7] The corrections officer was not informed until February 24, 1997 that the chairperson of the tribunal had given a decision on February 19, 1997.
[8] Only after providing a urine sample on February 24, 1997 was the applicant notified by the corrections officer that he would be required to provide the monthly urine samples, pursuant to section 71 of the Regulations, for the conviction of February 19, 1997.
[9] The gist of all of this is that the applicant provided three consecutive negative samples following the February 19, 1997 conviction, but the officer did not want to include the February 24, 1997 sample for the purposes of the February 19, 1997 conviction.
[10] The applicant is not responsible for the fact that the corrections officer was not informed until February 24, 1997 that the chairperson of the tribunal had given a decision on February 19, 1997.
[11] The fact that the corrections officer did not ask the applicant to provide a urine sample during the month of March 1997 does not depend on the applicant.
[12] The applicant provided three consecutive samples, on February 24, 1997, April 24, 1997, and May 16, 1997, as required by the officer, and all turned out to be negative.
[13] In these very specific circumstances, it would be unfair and unreasonable, in my opinion, to conclude that the applicant failed to comply with section 71 of the Regulations.
[14] Consequently, the application for judicial review is allowed and the decision of the chairperson of the tribunal dated August 27, 1997 is set aside.
John D. Richard
Judge
Montréal, Quebec
June 11, 1998
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-2057-97
| STYLE OF CAUSE: JACQUES SIMONEAU |
Applicant
AND:
| CORRECTIONAL SERVICE OF CANADA |
-and-
ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 8, 1998
REASONS FOR ORDER BY THE HONOURABLE MR. JUSTICE RICHARD
DATE OF REASONS FOR ORDER: June 11, 1998
APPEARANCES: Serge Bernier for the applicant
Eric Lafrenière for the respondent
SOLICITORS OF RECORD:
Bernier, Fournier for the applicant
Drummondville, Quebec
Morris A. Rosenberg for the respondent
Attorney General of Canada
Ottawa, Ontario
__________________1 An inmate commits a disciplinary offence who . . . takes an intoxicant into the inmate"s body; . . . .