Date: 19971017
Docket: T-2757-96
BETWEEN:
MARTIN PELLERIN
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
RICHARD J.:
[1] This is an application for judicial review to quash the decision rendered on November 14, 1996 by the independent chairperson of the Disciplinary Court of Cowansville Institution, which found the applicant guilty of the offence described in section 40(f) of the Corrections and Conditional Release Act, and to refer it back for determination in accordance with such directions as the Trial Division considers to be appropriate.
[2] The application is based on the following grounds:
| 1. The independent chairperson of the Disciplinary Court erred in law in refusing to adjourn the proceeding at the applicant"s request to enable him to be represented by counsel; |
| 2. The independent chairperson of the Disciplinary Court erred in law in denying the applicant the right to examine his witnesses concerning an essential element in the offence; |
| 3. The independent chairperson of the Disciplinary Court also committed a patently unreasonable error in finding the applicant guilty notwithstanding the evidence presented by him; |
| 4. The independent chairperson of the Disciplinary Court erred in law in denying the applicant the right to make submissions on sentencing; and |
| 5. The independent chairperson of the Disciplinary Court erred in imposing a clearly disproportionate sentence having regard to the facts of the case. |
[3] The applicant was charged with the disciplinary offence under section 40(f) of the Corrections and Conditional Release Act, R.S.C. 1985 c. C-44.6, namely, being "disrespectful or abusive toward a staff member in a manner that could undermine a staff member's authority".
The charge reads:
| [Translation] While going down the Walkway, I was voluntarily bumped by the left forearm of the inmate Pellerin 198 295 C. |
[4] On his first appearance, on November 6, 1996, the applicant requested the assistance of a lawyer, which was agreed to by the independent chairperson of the Court, and the hearing date was set down for November 13, 1996.
[5] On November 13, 1996, the disciplinary hearing that was to be held that day was adjourned by the Service authorities.
[6] On November 14, 1996, the applicant, Mr. Martin Pellerin, was taken to the Disciplinary Court, where he was informed that he was to be tried.
[7] The applicant requested the postponement of the said trial on the ground that he wished to be represented by his lawyer and he was not ready to proceed alone.
[8] The applicant"s lawyer could not be notified that the Disciplinary Court was to resume the day after the scheduled date.
[9] The record indicates that the independent chairperson of the Court assumed that the applicant"s counsel had simply neglected to appear without valid reason, which was not the case.
[10] The independent chairperson of the Court rejected the request for adjournment, saying it was urgent to proceed since the applicant was then in segregation, notwithstanding a clear waiver by the applicant of the time limits prescribed for his own protection.
[11] The disciplinary hearing proceeded entirely in the absence of the applicant"s counsel.
[12] The independent chairperson of the Court found the applicant guilty, relying on the testimony of the officer who characterized the "bumping" as voluntary.
[13] The independent chairperson of the Court denied the applicant any right to make submissions as to sentence, and ultimately imposed a sentence of 15 days" segregation notwithstanding the 14 days already served while awaiting trial.
[14] The independent chairperson of the Court had two regulatory provisions to consider when deciding whether or not to adjourn the disciplinary hearing as requested by the applicant:
| 29. Where an inmate who is charged with a disciplinary offence is placed in administrative segregation as a result of the conduct that gave rise to the disciplinary charge, that inmate's hearing shall be given priority over any other hearings of disciplinary offences. |
This section is a guarantee to inmates that they will not suffer undue delay when they are administratively segregated.
| 31. (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). |
[15] Commissioner"s Directive 580 restates these provisions as follows:
| 26. Where an inmate who is charged with a disciplinary offence is placed in administrative segregation as a result of the conduct that gave rise to the disciplinary charge, his or her hearing shall be given priority in the order in which cases are heard. |
| 27. The independent chairperson may adjourn a hearing when necessary. Unreasonable delays may result in dismissal of charges. |
| 33. The inmate"s counsel shall be permitted to participate in the proceedings to the same extent as the inmate. |
[16] The right to counsel is not only recognized for offences classified like the one in this case, but it is not subject to any condition or restriction other than "reasonable limits".
[17] Parliament is perfectly free to prescribe procedural guarantees that are greater than those minimally required by fundamental justice.
[18] The independent chairperson of the Disciplinary Court is under no obligation to automatically grant adjournments absent any valid reason being given therefor.1
[19] However, nothing was more "reasonable", to use the words of section 31, than the request for postponement by the applicant, taken by surprise by the holding of his disciplinary trial on a day other than the one initially scheduled. Despite the fact that he knew his request would entail another full week for him in administrative segregation, the applicant preferred to request a postponement in order to communicate to his counsel the new date of his trial that had been cancelled the day before.
[20] The respondent argues that the refusal to adjourn the hearing did not cause the applicant any injustice, and cites the Hendrickson judgment,2 in which Denault J. stated that:
| 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 Hendrickson,3 Denault J. also stated:
| 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. |
[22] What we have here is a regulatory provision, which has force of law, which is replicated in a Commissioner"s Directive, and which gives an inmate charged with a serious disciplinary offence (which is also the case here) the possibility of resorting to the assistance of a lawyer at the disciplinary hearing, so that this lawyer can participate in the proceedings to the same extent as the inmate. This possibility may be exercised "within reasonable limits".
[23] In this case, the circumstances favour the applicant. Moreover, I am unable to accept the respondent"s statement that in any event the refusal to adjourn the hearing did not cause the applicant any injustice.
[24] In addition, the independent chairperson of the Court did not grant the applicant the possibility of making his own submissions as to sanction.
[25] Paragraph 31(1)(b) of the Regulations is very clear on this matter:
| 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 |
| (b) make submissions during all phases of the hearing, including submissions respecting the appropriate sanction. |
[26] This right is not subject to challenge, not only because it is explicitly recognized by law but also because fundamental justice requires that one listen to the representations of an inmate who has just served 14 days in administrative segregation and to whom one wishes to add a further 15 days, making a total of 29 days, when one knows that the maximum prescribed by the Act is 30 days" segregation.
[27] For these reasons, and in these circumstances, the decision of November 14, 1996 of the independent chairperson of the Disciplinary Court is set aside and it is ordered that the applicant be given a new trial before another individual.
| John D. Richard |
| J. |
MONTRÉAL, QUEBEC
October 17, 1997
Certified true translation
Christiane Delon
Federal Court of Canada
Docket: T-2757-96
BETWEEN:
MARTIN PELLERIN
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO. T-2757-96 |
| STYLE: MARTIN PELLERIN |
Applicant
| AND: |
| ATTORNEY GENERAL OF CANADA |
Respondent
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: October 16, 1997 |
REASONS AT HEARING BY THE HONOURABLE MR. JUSTICE RICHARD
| DATED: October 17, 1997 |
APPEARANCES:
| Martin Latour for the applicant |
| Éric Lafrenière for the respondent |
SOLICITORS OF RECORD:
| Labelle, Boudrault, Côté for the applicant |
& Associés
434 rue Sainte-Hélène
Vieux-Montréal, Quebec
| Federal Department of Justice for the respondent |
239 Wellington St., Room 241
Ottawa, Ontario
T-2757-96
MONTRÉAL, QUEBEC, THE 17TH DAY OF OCTOBER, 1997
| PRESENT: THE HONOURABLE MR. JUSTICE RICHARD |
| BETWEEN: MARTIN PELLERIN, |
Applicant
| AND: |
ATTORNEY GENERAL OF CANADA,
Respondent
Judicial review of the decision of the independent chairperson of the Disciplinary Court of Cowansville Institution.
[Section 40(f) of the Corrections and
Conditional Release Act]
O R D E R
The decision of November 14, 1996 of the independent chairperson of the Disciplinary Court is quashed and it is ordered that the applicant be granted a new trial before another person.
| John D. Richard |
| J. |
Certified true translation
Christiane Delon
__________________1 Goulet v. Correctional Service of Canada, [1996] 121 F.T.R. 54.
2 Hendrickson v. Kent Institution Disciplinary Court (Independent Chairperson), [1990] 32 F.T.R. 296 at 299.
3 Ibid. p. 298.