Date: 20001207
Docket: T-1688-99
BETWEEN:
RICHARD LAWRENCE BOUDREAU
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] This application is for the judicial review of a decision by Susan Breau, Independent Chairperson ("the Chairperson"), Bath Institution, dated August 24, 1999, wherein she convicted the applicant of a disciplinary offence contrary to paragraph 40(k) of the Corrections and Conditional Release Act ("the Act")1.
1. Facts
[2] The applicant, presently incarcerated at Bath Institution in Ontario, provided a urine sample on April 19, 1999, as part of a random urinalysis program. He tested positive and was charged with having consumed an intoxicant. He first appeared before the Chairperson on June 1, 1999, when he sought an adjournment as he had no lawyer to represent him. The matter was adjourned to June 15, 1999, but that hearing was adjourned again because the applicant's counsel was still not present. The hearing was adjourned peremptorily to July 13, 1999, at which date the applicant appeared, still without counsel, but asked to examine the person responsible for collecting urinalysis samples, Mr. Conley. Since that person was not present, the meeting was adjourned to August 24, 1999. At that fourth and final hearing both the applicant and Mr. Conley gave evidence. The urinalysis program co-ordinator Mr. Niles, also gave evidence. The applicant was convicted.
2. Issues
[3] In his Memorandum of Fact and Law, the applicant raised four issues. The Chairperson adjourned a peremptory trial date; secondly, she permitted the Institution to split its case; thirdly, she permitted the urinalysis program co-ordinator to give expert evidence without inquiring into his qualifications; fourthly, she gave no reasons for her decision. However, at the hearing of this matter, counsel for the applicant limited his argument to the second ground, allowing the Institution to split its case.
3. Splitting the Case
[4] The applicant claims that at the July 13, 1999 hearing Mr. Niles, the urinalysis program co-ordinator, read the charge into the record and the applicant subsequently requested Mr. Conley who was not present. On August 24, 1999, the applicant objected to the urinalysis collector giving evidence, he cross-examined him, and then Mr. Niles gave further evidence.
[5] On the other hand, the respondent submits that the Chairperson did not err in allowing Mr. Conley's evidence after the initial charge had been laid. The Institution had not been informed in advance that the applicant wanted to examine Mr. Conley, thus the Chairperson adjourned the hearing to allow him to be present whereupon the applicant cross-examined him on issues relating to possible contamination of the sample based upon the applicant's theory that he had not washed his hands prior to providing the sample. The applicant was fully informed of the charge against him and was given every opportunity to provide his own evidence and arguments. Mr. Niles, who had read the charge at the July 13, 1999 hearing, then testified.
4. Analysis
[6] The standard of review in the context of decisions made by the Correctional Service of Canada officials is, on the balance of probabilities, whether the decision was patently unreasonable2.
[7] The jurisprudence has established general principles regarding the nature of the disciplinary proceedings conducted by an Independent Chairperson of a disciplinary court3. These hearings are neither judicial nor quasi-judicial in character. They are merely administrative proceedings. There is no requirement to conform to any particular procedure or to abide by the rules of evidence. However, there is an overall duty to act fairly in the sense that the prisoner must be aware of the allegations and the evidence against him and be afforded a reasonable opportunity to respond. These hearings are not conducted in an adversary manner but in an inquisitorial one, in the sense that the Chairperson must examine both sides of the question. It is not for a 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 the court must limit itself to consider whether there has been a breach of the general duty to act fairly. Finally, the judicial discretion in relation to disciplinary matters must be exercised sparingly and a remedy ought to be granted only in cases of serious injustice.
[8] The single argument advanced by the applicant at the hearing is based on a general rule of practice governing civil and criminal trials that a lawyer may not split his action in an attempt to deprive his adversary of a right to reply4. Again, the proceeding under attack is merely administrative and there is no requirement for the Chairperson to conform to any particular procedure provided he or she acted fairly. In the instant case, the applicant was fully aware of the allegations against him and was afforded a reasonable opportunity to respond and to give his own version of the matter. He was not denied the opportunity to cross-examine Mr. Niles.
[9] Consequently, this application must be dismissed.
OTTAWA, Ontario
December 7, 2000
Judge
__________________2 See: Fitzgerald v. Trono, Vancouver Registry No. CC931084, July 7, 1994 (B.C.S.C.); McLarty v. Canada (1997), 113 F.T.R. 11 (T.D.).
3 Canada (Correctional Services) v. Plant (1995), 103 F.T.R. 161 (T.D.) and Hendrickson v. Kent Institution (1990), 32 F.T.R. 296 (T.D.).
4 That argument was also raised before Denault J. in the Hendrickson case - at par. 6 (see note 3).