Date: 19991027
Docket: T-1215-98
Ottawa, Ontario, this 27th day of October, 1999
Present : The Honourable Madame Justice McGillis
BETWEEN:
JEFFREY M. WHYTE
Applicant,
- and -
ATTORNEY GENERAL OF CANADA
Respondent.
JUDGMENT
The application is allowed with costs. The decision of the independent chairperson dated May 26, 1998 is quashed and a new hearing is ordered before a different independent chairperson. The new hearing shall be conducted in accordance with the Reasons for Judgment issued this day.
JUDGE
Date : 19991027
Docket: T-1215-98
BETWEEN:
JEFFREY M. WHYTE
Applicant,
- and -
ATTORNEY GENERAL OF CANADA
Respondent.
REASONS FOR JUDGMENT
McGILLIS J.
INTRODUCTION
[1] The applicant is an inmate at the maximum security Millhaven Institution at Bath, Ontario ("institution"). He has a lengthy criminal record and is presently serving a 17 year sentence for manslaughter and for possession of an unregistered and restricted weapon.
[2] On March 23, 1998, the applicant was the "inmate food server" on his range, and had the responsibility of checking the food trays, delivered by food stewards, for quality and number. On that date, a disturbance occurred in which one or more inmates allegedly yelled at the food stewards, resulting in a severe riot in which fires were set, lights were smashed and tear gas was fired into the range. Following the disturbance, the applicant was placed in segregation for four days.
[3] On March 24, 1998, the applicant was charged with two disciplinary offences relating to his alleged participation in activities likely to jeopardize the security of the institution: first, acting in a disrespectful manner towards food stewards by "screaming complaints about the food", an event "considered to be the onset of the disturbance" in the range; and, second, "smashing lights out on the range during the disturbance". The charges were "serious disciplinary offences", within the meaning of the Corrections and Conditional Release Regulations, SOR/92-620.
[4] On April 21, 1998, the applicant appeared before the independent chairperson at Millhaven Institution and was represented by counsel who requested disclosure of the reports, if any, filed by the food stewards. The next day, Paul Empey, the coordinator of correctional operations at the institution, left a message for counsel "...that no food stewards had filed any reports and that there was no record of who the food stewards were".
[5] On May 26, 1998, the applicant appeared before the independent chairperson with his counsel and pleaded not guilty to the two charges. Counsel for the applicant advised the independent chairperson that the names of the food stewards had not been provided to her. She requested an adjournment on the basis that the applicant would be deprived of the right to full answer and defence and the right to a fair trial on the charges unless the names of the food stewards were provided. She also informed the independent chairperson of the discussion between the applicant and one of the food stewards during his time in segregation. The independent chairperson denied the requested adjournment and proceeded with the hearing. He treated both charges as part of a single event and heard the charges together.
[6] The applicant was convicted of the offences and sentenced to 12 days in disciplinary segregation.
[7] There were affidavits filed in this proceeding by the applicant and by Paul Empey, the coordinator of correctional operations at the institution.
[8] During the course of his cross-examination on his affidavit filed in this proceeding, the applicant testified that there were approximately eight to ten food stewards who worked as employees of the institution, and that he did not know any of their names. While he was in segregation following the disturbance, the applicant asked the three or four food stewards who brought his meals to him whether they were present during the disturbance, as he wanted to determine the identity of the food stewards who were referred to in the first charge. One of the food stewards stated that he was present at the disturbance, and that the applicant had not yelled at or been rude to him. The food steward further stated that he did not observe the applicant arguing with anyone. The applicant did not ask that food steward his name, as he was "confident" that his lawyer would obtain the names. With respect to the corrections officer who charged him with the disciplinary offences, the applicant testified that she "wasn't there" at the beginning of the disturbance, that she was "called in after it began", and that she was "in the corridor around the corner". The applicant further stated that although the corrections officer initially testified at the disciplinary hearing that she saw him arguing with the food stewards, she later stated that she did not actually see him arguing with the food stewards, but that his "... name was one of the names mentioned as being on the range at the time", and "... something about hearing [his] voice".
[9] The affidavit filed by Paul Empey, the coordinator of correctional services at the institution, contradicts the applicant's version of what transpired at the May 26, 1998 hearing before the independent chairperson. In his affidavit, Mr. Empey stated that the corrections officer observed the applicant "...screaming and yelling and...smashing light bulbs on the range". With respect to food stewards, Mr. Empey noted that they wear name tags and are in frequent contact with the inmates. Furthermore, none of the food stewards "...had filed incident reports and there was no record of who the food stewards were". Finally, the applicant should have made other efforts to ascertain the identity of the food stewards rather than asking Mr. Empey.
[10] A transcript of the hearing is unavailable due to a malfunctioning of the tape recorder.
ISSUE
[11] The question to be determined is whether the independent chairperson breached the duty of fairness by failing to call the food stewards as witnesses at the hearing.
ANALYSIS
[12] The legislative framework governing the conduct of a hearing into a disciplinary offence is contained in the Corrections and Conditional Release Regulations. For the purposes of the present case, subsections 27(2), 30(1), 31(1) and 33(1) are relevant.
[13] By virtue of subsection 27(2) of the Corrections and Conditional Release Regulations, an independent chairperson shall conduct a hearing of a serious disciplinary offence, save and except in certain prescribed circumstances not applicable in the present case. Where a disturbance gives rise to more than one disciplinary offence, subsection 30(1) requires in mandatory terms that "all of the charges shall be heard together". The procedure to be followed at a hearing of a disciplinary offence is outlined in subsection 31(1). That section provides, among other things, that the person conducting the hearing shall call witnesses on the inmate's behalf and shall provide the inmate with a reasonable opportunity to question witnesses. Finally, subsection 33(1) provides that a hearing before an independent chairperson must be recorded. For ease of reference, subsections 27(2), 30(1), 31(1) and 33(1) provide as follows:
| 27. (2) A hearing of a serious disciplinary offence shall be conducted by an independent chairperson, except in extraordinary circumstances where the independent chairperson or another independent chairperson is not available within a reasonable period of time, in which case the institutional head may conduct the hearing. 30. (1) Where the conduct of an inmate that involves a single action, simultaneous actions or a chain of uninterrupted actions gives rise to more than one disciplinary charge, all of the charges shall be heard together. 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
33. (1) The Service shall ensure that all hearings of disciplinary offences are recorded in such a manner as to make a full review of nay hearing possible. |
27. (2) L'audition relative à une infraction disciplinaire grave doit être tenue par un président indépendant sauf que, dans les cas exceptionnels où le président indépendant ne peut tenir l'audition et ne peut être remplacé par un autre président indépendant dans un délai raisonnable, le directeur du pénitencier peut la tenir à sa place. 30. (1) Lorsque la conduite du détenu, qu'elle comprenne un seul acte, des actes simultanés ou une série d'actes continus, fait l'objet de plus d'une accusation d'infraction disciplinaire, toutes ces accusations doivent être entendues en même temps. 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 :
33. (1) Le Service doit veiller à ce que toutes les auditions disciplinaires soient enregistrées de manière qu'elles puissent faire l'objet d'une révision complète. |
[14] In the present case, the disciplinary offence of "acting in a disrespectful manner towards food stewards" was heard together with the offence of "smashing lights on the range". The importance of the offence allegedly committed in relation to the food stewards is underscored by the allegation in the offence that the applicant's conduct in relation to the food stewards "...was considered to be the onset of the disturbance..." in the range. Given the applicant's position at the hearing that at least one of the food stewards could give evidence favourable to his defence, the independent chairperson should have ordered the institution to reveal the names of the food stewards who were on duty at the relevant time in order to permit counsel for the applicant to determine whether any of them should be called as witnesses on behalf of the applicant. Although Mr. Empey indicated in his affidavit that the food stewards had not filed incident reports and that there "was no record" of who they were, he did not state that it was not possible to determine who was on duty on that date. Indeed, it would stretch credulity to the limit to think that the officers of a maximum security institution could not provide the names of employees who were on duty on any given date.
[15] Furthermore, given the conflicting evidence in the record concerning the substance of the correctional officer's evidence at the hearing, it is impossible for the Court to determine, in the absence of a transcript, what evidence was adduced at the hearing before the independent chairperson. In the event that the corrections officer testified, as indicated by the applicant during his cross-examination, that she was not present at the beginning of the disturbance and did not actually see the applicant yelling at the food stewards as she was "in the corridor around the corner", evidence from a food steward who was directly involved in the incident would be critical in assessing the reliability of and the weight to be given to her evidence. However, given the malfunctioning of the recording equipment, the Court is unable to review the evidence at the hearing and is left with the conflicting versions presented in the evidence in the record of this proceeding.
[16] In the circumstances, I have concluded that the independent chairperson breached the duty of fairness by failing to require an officer of the institution to provide to counsel for the applicant with the names of the food stewards who were on duty at the relevant time.
DECISION
[17] The application is allowed with costs. The decision of the independent chairperson dated May 26, 1998 is quashed and a new hearing is ordered before a
different independent chairperson. The new hearing shall be conducted in accordance with these Reasons for Judgment.
D. McGillis
JUDGE
OTTAWA, ONTARIO
October 27, 1999