Date: 20010822
Docket: T-1642-00
Neutral citation: 2001 FCT 935
BETWEEN:
TONY BAILEY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
Lemieux J.
INTRODUCTION
[1] Tony Bailey (the applicant) is seeking judicial review of a decision of the chairperson of the Disciplinary Court of Cowansville Institution (the respondent) dated August 4, 2000, finding him guilty of the disciplinary offence set out paragraph 40(i) of the Corrections and Conditional Release Act (the Act).
Facts
[2] The applicant is an inmate in the Cowansville penitentiary institution. On April 29, 2000, he was frisk searched by officer Brière when he returned from a contact visit. Brière felt an object in the applicant's right sleeve and ordered him to submit to a strip search. The search was conducted and nothing was found on the applicant's person.
[3] About ten minutes later, officer Larocque found a package containing narcotics in the vicinity of the room where the search had been conducted.
[4] On May 1, 2000, the applicant was placed in administrative segregation for four days, since he was suspected of being the owner of the contraband found in the vicinity of the contact visit room. On May 2, he received a disciplinary report for being in possession of narcotics contrary to paragraph 40(i) of the Act.
[5] On August 3, 2000, at the hearing, the officers testified that they had found no narcotics on the applicant and had not seen him throwing anything away.
[6] The applicant was nonetheless found guilty of the offence charged. This is the decision of which he is seeking judicial review. The Disciplinary Court explained its reasons briefly as follows:
First ... there was a legal search that was made and the officer felt something and the inmate refused to be searched. And when help was asked, the inmate was moving back and forth and during that time there was time for him to dissimulate this substanced [sic].
There was a search, new search and nothing was found okay. How come then the CX felt something on the arm ... .
Legislation
[7] The relevant provisions of the Act are as follows:
| Disciplinary offences 40.An inmate commits a disciplinary offence who ... (i) is in possession of, or deals in, contraband; 43.(3) The person conducting the hearing shall not find the inmate guilty unless satisfied beyond a reasonable doubt, based on the evidence presented at the hearing, that the inmate committed the disciplinary offence in question. [Emphasis added] |
Infractions disciplinaires 40.Est coupable d'une infraction disciplinaire le détenu qui_: ... i) est en possession d'un objet interdit ou en fait le trafic; ... 43.(3). La personne chargé de l'audition ne peut prononcer la culpabilité que si elle est convaincue hors de tout doute raisonnable, sur la foi de la preuve présentée, que le détenu a bien commis l'infraction reprochée. |
Discussion
[8] The applicant filed an affidavit in this Court in support of his argument. He alleged that the conclusion reached by the Chairperson of the Disciplinary Court was patently unreasonable having regard to the fact that there was no evidence regarding an essential element of the offence charged. Despite the fact that the evidence was consistent with guilt, it was equally probable that another inmate could have left the object. Consequently, there was a reasonable doubt as to his guilt.
[9] The respondent failed to file an affidavit in support of her argument. She argued that although there was no direct evidence of possession on the part of the applicant, there was circumstantial evidence of possession. In addition, since the plaintiff had exclusive opportunity to commit the offence, his guilt was the only logical explanation.
[10] It is apparent from subsection 43(3) that the burden of proof that applies at the disciplinary hearings provided for in the Act is the burden of proof in criminal matters.
[11] In R. v. Lifchus, [1997] 3 S.C.R. 320, Mr. Justice Cory concluded that the expression "beyond a reasonable doubt" could be explained as follows, at p. 335:
(c) Summary
Perhaps a brief summary of what the definition should and should not contain may be helpful. It should be explained that:
· the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;
· the burden of proof rests on the prosecution throughout the trial and never shifts to the accused;
· a reasonable doubt is not a doubt based upon sympathy or prejudice;
· rather, it is based upon reason and common sense;
· it is logically connected to the evidence or absence of evidence;
· it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and
· more is required than proof that the accused is probably guilty -- a jury which concludes only that the accused is probably guilty must acquit.
On the other hand, certain references to the required standard of proof should be avoided. For example:
· describing the term "reasonable doubt" as an ordinary expression which has no special meaning in the criminal law context;
· inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives;
· equating proof "beyond a reasonable doubt" to proof "to a moral certainty";
· qualifying the word "doubt" with adjectives other than "reasonable", such as "serious", "substantial" or "haunting", which may mislead the jury; and
· instructing jurors that they may convict if they are "sure" that the accused is guilty, before providing them with a proper definition as to the meaning of the words "beyond a reasonable doubt".
[Emphasis added]
[12] Not only must the applicant be guilty beyond a reasonable doubt, but the burden is on the Crown to prove guilt. Mr. Justice Bastarache stated this principle in R. v. Charemski, [1998] 1 S.C.R. 679 at p. 683:
For there to be "evidence upon which a reasonable jury properly instructed could return a verdict of guilty" in accordance with the Shephard test (at p. 1080), the Crown must adduce some evidence of culpability for every essential definitional element of the crime for which the Crown has the evidential burden. [Emphasis added]
[13] In this case, the respondent acknowledges that there was no direct evidence of possession on the part of the applicant. She argues that there was circumstantial evidence of such possession. In The Queen v. Cooper, [1978] 1 S.C.R. 874, Mr. Justice Ritchie quoted what was said by Baron Alderson in Hodge, 168 E.R. 1136, as follows:
Alderson, B., told the jury, that the case was made up of circumstances entirely; and that, before they could find the prisoner guilty, they must be satisfied, 'not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person.
[14] In Her Majesty the Queen v. Yebes, [1987] 2 S.C.R. 168, Mr. Justice McIntyre stated the following principle at pages 188 and 189:
It may then be concluded that where it is shown that a crime has been committed and the incriminating evidence against the accused is primarily evidence of opportunity, the guilt of the accused is not the only rational inference which can be drawn unless the accused had exclusive opportunity. In a case, however, where evidence of opportunity is accompanied by other inculpatory evidence, something less than exclusive opportunity may suffice. [Emphasis added]
[15] In this case, it is not denied that the applicant had the opportunity to commit the act with which he was charged. However, the evidence submitted to prove his guilt was deficient. Officers Bolduc and Larocque, who testified before the Disciplinary Court, did not do the first search in which an object was allegedly felt on the applicant's person. It was officer Brière who did that first search. However, he did not testify before the Disciplinary Court.
[16] In addition, officer Larocque testified as follows:[1]
Q. Okay. You found the drug where?
A. I found the drug just near the door was opened, I find it just near the door.
...
Q. Yourself, have you seen Mr. Bailey throw the package?
A. No. (Long interruption) That's why I went to search the bathroom and outside.
...
A. We didn't find anything on him, that's why he left. And after I went to see the bathroom to make a search.
Q. Yes?
A. And the bathroom there was nothing ...
[17] There is therefore no evidence that the narcotics were on the applicant's person, nor is there any direct evidence that he was the person who had got rid of the contraband found near the door leading out of the visiting area. All that has been established in this case is the possibility that it belonged to him and opportunity to have committed the act.
[18] However, that opportunity was not exclusive opportunity, as the testimony of officer Bolduc indicates:[2]
[TRANSLATION]
Q. Okay. (Interruption). On that visiting day, were there ... do you remember whether there were a lot of visitors, a lot of inmates who went for visits?
A. No idea, if you want to know I can call visiting and I'll get the information.
Q. Okay. You don't remember whether it was a normal day or, was there only one inmate in visiting on that day ... you don't remember at all?
A. There was one, but to tell you whether there were twenty-five or seven, that I don't know.
Q. Okay.
...
Q. Okay. But was he all alone?
A. Probably not.
Q. No.
Q. You'll have to check, is that what you're saying?
A. Well ...
Q. Okay ... okay no but ...
A. I don't think that it has never happened that there were one or two visitors in ... it was in the afternoon I think.
[19] From this testimony, it seems to me that the applicant was not the only inmate in the contact visit room that afternoon. He therefore did not have exclusive opportunity to commit the act with which he was charged, and consequently it was unreasonable to conclude that he was guilty beyond a reasonable doubt.
[20] In my opinion, the report by officer Brière dated April 20, 2000, cannot make up for this gap, since officer Brière did not testify. In his report, officer Brière stated that officer Larocque had found the packet of hashish near the exterior door of the exterior side. He wrote:
[TRANSLATION] I would add that I myself was outside at about 14:50 to get some sun and that object was not there. Between 14:50 and 15:00, only one inmate came in to see his visitor and he was not at any time out of my sight. The door stayed open for the whole afternoon.
The Disciplinary Court used that aspect of the report to justify finding exclusive opportunity. The problem is that this essential fact was not in evidence.
[21] For all these reasons, I am of the opinion that the Chairperson committed an error that warrants the intervention of the Court.
Order
[22] The decision of the Disciplinary Court is set aside.
J. François Lemieux
Judge
OTTAWA, ONTARIO
August 22, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-1642-00
STYLE OF CAUSE: Tony Bailey v. Attorney General of Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 4, 2001
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: August 22, 2001
APPEARANCES:
Daniel Royer FOR THE APPLICANT
Dominique Guimond FOR THE RESPONDENT
SOLICITORS OF RECORD:
Labelle, Boudrault, Côté et ass. FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec