Date: 20020705
Docket: T-287-99
Ottawa, Ontario, the 5th day of July 2002
Present: The Honourable Mr. Justice Pinard
Between:
JEAN-GUY PONTBRIAND
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
The application for judicial review to set aside a decision dated January 28, 1999, by the independent chairperson of Donnacona Institution's Disciplinary Board, which found the applicant guilty under subsection 40(j) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, is dismissed.
YVON PINARD
JUDGE
Certified true translation
Sophie Debbané, LLB
Date: 20020705
Docket: T-287-99
Neutral citation: 2002 FCT 744
Between:
JEAN-GUY PONTBRIAND
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This application for judicial review seeks to set aside the decision dated January 28, 1999, by the independent chairperson (the "chairperson") of the Donnacona Institution's Disciplinary Board (the "Board"), which found the applicant guilty under subsection 40(j) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the "Act").
[2] The applicant is currently serving a sentence at the maximum security Donnacona Institution and has been since 1995.
[3] On December 23, 1998, a search was conducted in his cell, and staff members Delisle and St-Gelais seized "a liquid" therein.
[4] They reported the applicant, considering that the liquid was prohibited within the meaning of subsection 40(j) of the Act, which states:
| 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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[5] The initial appearance of the applicant before the Board took place on January 7, 1999. He entered a plea of not guilty and asked to be represented by Martin Latour, a lawyer.
[6] At the hearing, the chairperson questioned Luc Delisle, one of the two correctional staff members involved in the seizure in question. The applicant and a fellow inmate, Kevin Smith, testified in defence.
[7] After hearing both the recommendations and arguments of counsel for the applicant and those of the assessor, the chairperson sentenced the applicant to ten days' detention and a loss of privileges.
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[8] The applicant first argues that the chairperson erred in concluding that the information on the notice of charge was sufficiently detailed to comply with the requirements of section 25 of the Regulations. On the basis of the evidence in the record, I cannot accept that argument.
[9] Section 25 of the Corrections and Conditional Release Regulations, SOR/92-620 (the "Regulations") provides as follows:
25. (1) Notice of a charge of a disciplinary offence shall
(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
(b) state the time, date and place of the hearing.
(2) A notice referred to in subsection (1) shall be issued and delivered to the inmate who is the subject of the charge, by a staff member as soon as practicable.
25. (1) L'avis d'accusation d'infraction disciplinaire doit contenir les renseignements suivants :
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;
b) les date, heure et lieu de l'audition.
(2) L'agent doit établir l'avis d'accusation disciplinaire visé au paragraphe (1) et le remettre au détenu aussitôt que possible.
[10] Given the terms of section 25 of the Regulations and the wording of the notice of charge in question, I am of the view that it is sufficiently detailed. The notice of charge in fact states the time and date and describes the type of charge. Furthermore, it clearly states:
[TRANSLATION] The above-mentioned person is reported for possessing approximately 20 litres of a prohibited liquid. That liquid is neither provided by the kitchen nor sold at the canteen.
The notice of charge specifies the place of the alleged offence, cell G-214, and identifies the staff member witnesses: L. Delisle and J. St-Gelais.
[11] The applicant also complains of the overbreadth of the following written order, relating to subsection 40(j) of the above-mentioned Act:
| In order to insure a safe environment inside the Institution, inmates are strictly forbidden to be in possession of: (a) All items that can be used to make home-made alcohol. (b) All liquids that are not sold at the canteen, provided by the institutional kitchen or given out by the institutional hospital, except for water. The only liquids allowed are those that are in their original state.
Finally, inmates are forbidden to have in their cell all liquids in a container that can hold more than 1.5 liter.
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Afin d'assurer un environnement sûr à l'intérieur de l'établissement, il est strictement interdit à tout détenu d'avoir en sa possession : a) Tout objet pouvant servir à la fabrication d'alcool artisanal. b) Tout liquide qui n'est pas vendu à la cantine institutionnelle ou fourni par la cuisine de l'établissement ou encore distribué par le centre de soins, sauf de l'eau.
Seuls les liquides dans leur état original sont autorisés. Finalement il est aussi interdit aux détenus d'avoir en cellule tout liquide dans un récipient de plus de 1.5 litre.
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[12] In R. v. Heywood, [1994] 3 S.C.R. 761, at pages 792 to 794, the Supreme Court of Canada, per Mr. Justice Cory, defined the concept of "overbreadth" of a statutory provision in the context of an application under section 7 of the Canadian Charter of Rights and Freedoms as follows:
Overbreadth analysis looks at the means chosen by the state in relation to its purpose. A court must consider whether those means are necessary to achieve the state objective. If the state, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate
Reviewing legislation for overbreadth as a principle of fundamental justice is simply an example of the balancing of the State interest against that of the individual. This type of balancing has been approved by this Court: see Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, per Sopinka J., at pp. 592-95; R. v. Jones, [1986] 2 S.C.R. 284, per La Forest J., at p. 298; R. v. Lyons, supra, per La Forest J., at pp. 327-29; R. v. Beare, [1988] 2 S.C.R. 387, at pp. 402-3; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at pp. 538-39; and Cunningham v. Canada, [1993] 2 S.C.R. 143, at pp. 151-53. However, where an independent principle of fundamental justice is violated, such as the requirement of mens rea for penal liability, or of the right to natural justice, any balancing of the public interest must take place under s. 1 of the Charter: Re B.C. Motor Vehicle Act, supra, at p. 517; R. v. Swain, [1991] 1 S.C.R. 933, at p. 977.
In analyzing a statutory provision to determine if it is overbroad, a measure of deference must be paid to the means selected by the legislature. While the courts have a constitutional duty to ensure that legislation conforms with the Charter, legislatures must have the power to make policy choices. A court should not interfere with legislation merely because a judge might have chosen a different means of accomplishing the objective if he or she had been the legislator. It is true that s. 7 of the Charter has a wide scope. This was stressed by Lamer J. (as he then was) in Re B.C. Motor Vehicles Act, supra, at p.502.
Sections 8 to 14 are illustrative of deprivations of those rights to life, liberty and security of the person in breach of the principles of fundamental justice.
However, before it can be found that an enactment is so broad that it infringes s. 7 of the Charter, it must be clear that the legislation infringes life, liberty or security of the person in a manner that is unnecessarily broad, going beyond what is needed to accomplish the governmental objective.
(Emphasis added.)
[13] In this case, even though the written order does not strictly constitute a statutory provision, I consider it appropriate to apply the above-mentioned principles laid down in Heywood, by analogy.
[14] The objective of the written order in question is stated in its preamble, which reads:
In order to insure a safe environment inside the Institution, . . .
[15] The Commissioner's Directive No. 090 entitled "Personal Property of Inmates", dated September 18, 1998, states the following under the heading "Policy Objectives":
1. To ensure that personal property allowances are fair and consistent.
2. To effectively administer personal property to ensure the safety of any person and the security of the penitentiary.
[16] The context in which the written order was issued must ultimately be examined. The evidence shows that the environment is a maximum security penitentiary in which the authorities find it essential to control the making and selling of alcohol in order to curb the serious problems associated with that substance.
[17] Therefore, in light of the objectives of the written order and of the Commissioner's Directive No. 090, I find that the order was made for the purpose of protecting the security of any person present in a maximum security penitentiary, in this case, the Donnacona Institution, by establishing rules with respect to the quantity and type of liquid and to the size of the container holding the liquid that an inmate can be in possession of in his cell. I am of the opinion that the written order is not unnecessarily broad in relation to the objectives sought and therefore, section 7 of the Canadian Charter of Rights and Freedoms would not be violated, assuming, without deciding this matter, that such violation of a written order can be raised in the context of these proceedings.
[18] The applicant next alleges that the chairperson erred in law by denying him an adjournment in order that Mr. St-Gelais (the co-signer of the offence report) be questioned by the defence, thereby interfering with his right to make a full answer and defence.
[19] Section 31 of the Regulations states:
31. (1) The person who conducts a hearing of a disciplinary offence shall give the inmate who is charged a reasonable opportunity at the hearing to
(a) question witnesses through the person conducting the hearing, introduce evidence, call witnesses on the inmate's behalf and examine exhibits and documents to be considered in the taking of the decision; and
(b) make submissions during all phases of the hearing, including submissions respecting the appropriate sanction.
(2) The Service shall ensure that an inmate who is charged with a serious disciplinary offence is given a reasonable opportunity to retain and instruct legal counsel for the hearing, and that the inmate's legal counsel is permitted to participate in the proceedings to the same extent as an inmate pursuant to subsection (1).
31. (1) Au cours de l'audition disciplinaire, la personne qui tient l'audition doit, dans des limites raisonnables, donner au détenu qui est accusé la possibilité :
a) d'interroger des témoins par l'intermédiaire de la personne qui tient l'audition, de présenter des éléments de preuve, d'appeler des témoins en sa faveur et d'examiner les pièces et les documents qui vont être pris en considération pour arriver à la décision;
b) de présenter ses observations durant chaque phase de l'audition, y compris quant à la peine qui s'impose.
(2) Le Service doit veiller à ce que le détenu accusé d'un infraction disciplinaire grave ait, dans des limites raisonnables, la possibilité d'avoir recours à l'assistance d'un avocat et de lui donner des instructions en vue de l'audition disciplinaire et que cet avocat puisse prendre part aux procédures au même titre que le détenu selon le paragraphe (1).
[20] The principles governing penitentiary discipline were summarized correctly by Mr. Justice Denault in Hendrickson v. Kent Institution, [1990] F.C.J. No. 19 (QL):
The principles governing the penitentiary discipline are to be found in Martineau No 1 (supra) and No 2 [Footnote:_[1979] 50 CCC (2d) 353 (SCC)]; Re Blanchard and Disciplinary Board of Millhaven Institution [Footnote: [1982] 69 CCC (2d) 171 FCTD]; Re Howard and Presiding Officer of Inmate Disciplinary Court of Stony Mountain Institution [Footnote: [1985] 19 CCC (3d) 195], 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).
[21] In this case, the applicant retained the services of his counsel on January 7, 1999, in view of the hearing scheduled for January 28, 1999. Even though he was not required to do so before the hearing, the applicant never mentioned that he wished to call Mr. St-Gelais, a correctional staff member, to testify in his favour, which paragraph 18 of the Commissioner's Directive No. 580 would have allowed him to do. It states:
The inmate may submit a list of witnesses and/or documents he or she wishes prior to the hearing.
[22] In fact, the other correctional staff member involved in the seizure in question testified, along with the applicant himself and his witness, Kevin Smith. They all confirmed that the applicant had more than 1.5 litres of liquid in his cell on December 23, 1998, and that that liquid was not in its original state and was not sold at the canteen.
[23] In the circumstances, given that the applicant never specified what he wanted
Mr. St-Gelais to establish, suggesting instead a mere fishing expedition, I am of the opinion that the chairperson could deny the applicant the adjournment requested without causing him serious injustice (see Martineau No 2, [1979] 50 C.C.C. (2d) 353 (S.C.C.), at p. 360).
[24] Lastly, the applicant argues that the chairperson imposed an arbitrary sanction and that he was not given the right to make adequate submissions at his hearing.
[25] Section 34 of the Regulations provides as follows:
34. Before imposing a sanction described in section 44 of the Act, the person conducting a hearing of a disciplinary offence shall consider
(a) the seriousness of the offence and the degree of responsibility the inmate bears for its commission;
(b) the least restrictive measure that would be appropriate in the circumstances;
(c) all relevant aggravating and mitigating circumstances, including the inmate's behaviour in the penitentiary;
(d) the sanctions that have been imposed on other inmates for similar disciplinary offences committed in similar circumstances;
(e) the nature and duration of any other sanction described in section 44 of the Act that has been imposed on the inmate, to ensure that the combination of the sanctions is not excessive;
(f) any measures taken by the Service in connection with the offence before the disposition of the disciplinary charge; and
(g) any recommendations respecting the appropriate sanction made during the hearing.
34. Avant d'infliger une peine visée à l'article 44 de la Loi, la personne qui tient l'audition disciplinaire doit tenir compte des facteurs suivants :
a) que la gravité de l'infraction disciplinaire et la part de responsabilité du détenu quant à sa perpétration;
b) ce qui constitue la mesure la moins restrictive possible dans les circonstances;
c) toutes les circonstances, atténuantes ou aggravantes, qui sont pertinentes, y compris la conduite du détenu au pénitencier;
d) les peines infligées à d'autres détenus pour des infractions disciplinaires semblables commises dans des circonstances semblables;
e) la nature et la durée de toute autre peine visée à l'article 44 de la Loi qui a été infligée au détenu, afin que l'ensemble des peines ne soit pas excessif;
f) toute mesure prise par le Service par rapport à cette infraction avant la décision relative à l'accusation;
g) toute recommandation présentée à l'audition quant à la peine qui s'impose.
[26] Having read the transcript of the hearing before the chairperson, it is clear that both lawyers, including the applicant's, were able to make adequate submissions before a sanction consistent with the Regulations was imposed. I am furthermore satisfied that the chairperson took into consideration the factors referred to in section 34 of the Regulations, including the sanctions that have been imposed for similar offences in other detention centres and the applicant's past record.
[27] For all of these reasons, the application for judicial review is dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
July 5, 2002
Certified true translation
Sophie Debbané, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-287-99
STYLE OF CAUSE: Jean-Guy Pontbriand v. Attorney General of Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 13, 2002
REASONS FOR ORDER OF: Pinard J.
DATED: July 5, 2002
APPEARANCES:
Daniel Royer FOR THE APPLICANT
Sébastien Gagné FOR THE RESPONDENT
SOLICITORS OF RECORD:
LABELLE BOUDRAULT FOR THE APPLICANT
Vieux-Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario