Federal Court Decisions

 

 

Date: 20061206

Docket: T-272-06

Citation: 2006 FC 1462

Ottawa, Ontario, December 6, 2006

PRESENT:     The Honourable Madam Justice Layden-Stevenson

 

BETWEEN:

CHOL ANGOU

Applicant

and

 

THE ATTORNEY GENERAL OF CANADA

Respondent

 

 

REASONS FOR ORDER AND ORDER

 

[1]        Mr. Angou, an inmate at Millhaven Insitution, seeks judicial review of the decision of an Independent Chairperson (ICP) of the Millhaven Institution Disciplinary Tribunal dated January 10, 2006.  The ICP found Mr. Angou guilty of an offence under paragraph 40(i) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA), specifically possession of cocaine.

 

[2]        Mr. Angou contends that the ICP erred in law by defining “proof beyond reasonable doubt” as “beyond moral certainty”.  Additionally, he asserts that the ICP’s finding of guilt beyond reasonable doubt, on the basis of the evidence before the ICP, was unreasonable.

 

[3]        I conclude, with some reservation, that the ICP’s reference to “moral certainty”, in and of itself, does not warrant intervention.  I find otherwise regarding the penultimate finding of guilt beyond reasonable doubt.  Consequently, the application for judicial review will be allowed.

 

Background

[4]        On September 11, 2005, Mr. Angou’s cell was searched by a Correctional Service of Canada (CSC) officer who found a cellophane package containing a white powdery substance in Mr. Angou’s pants.  The contents of the package were subsequently tested by a Security Intelligence Officer who used a Narcotic Identification Kit (NIK) to identify the substance as cocaine.  Mr. Angou was charged with possessing contraband under paragraph 40(i) of the CCRA.

 

[5]        At the disciplinary hearing before the ICP, Mr. Angou admitted possession of a cellophane package containing white powder.  He did not admit that the white powder was cocaine.  He argued that there was insufficient evidence to conclude that the substance in issue was a contraband substance as defined in section 2 of the CCRA.  He maintained that the results of the NIK test did not suffice to satisfy the CSC’s burden of proof beyond reasonable doubt.

 

[6]        The Security Intelligence Officer testified at the hearing as to her qualifications and the NIK procedure that she used to identify the cocaine.  She had conducted over 50 NIK tests since 2001.  She stated that the NIK identification involves a process of taking a small sample of the substance in question and introducing it to certain vials containing a clear chemical solution.  If the mixture in the vial changes to a particular colour, as identified in the NIK pamphlet, the substance is presumptively identified as the drug named in the pamphlet.  This was the procedure that she followed when she identified the white powdery substance as cocaine.

 

[7]        The Security Intelligence Officer could not recall the number of sequential tests she performed (although it appears likely that there were two) nor could she recall the colour of the “second” sample.  She also testified that she was not aware of any data as to the likelihood of false positives being generated by the NIK test.  When questioned regarding the accuracy of the test, she responded that “a positive indication is generally accepted within our legal systems as presumptive evidence in establishing or reinforcing probable cause for the detention or arrest decisions”. 

 

[8]        The ICP and Mr. Angou’s counsel were provided an opportunity to review the NIK manual in order to obtain more information with respect to the NIK and its rate of success.  Mr. Angou’s counsel submitted that the identification of the substance as cocaine was not established beyond reasonable doubt.  He delineated a number of factors in support of this submission:

•           the manual indicates that a positive identification is “presumed”;

•           presumptive identification reinforces probable cause in the criminal context;

•           a certificate of analysis is required for positive identification of the substance in question;

•           the manual indicates that the NIK test results in a “high degree of certainty”, but there is no indication as to what the phrase means;

•           the manual also notes that there are “occasional invalid test results”, but fails to include or specify any approximation in this respect.

 

The Decision

[9]        In finding Mr. Angou guilty of possession of contraband, the ICP identified the issue as a “question concerning the identity of the white powdery substance and whether the evidence as to its identity constituted evidence beyond reasonable doubt”.  The ICP read in portions from page one of the NIK manual (and apparently repeated elsewhere in the manual) that he considered relevant.  In so doing, he stated that “portions of page one of the manual, while interesting, may be no more than informative and at worst simply self-serving or self-promoting”.  He noted that no evidence had been called on behalf of Mr. Angou.  He distinguished and rejected a decision of a Serious Offence Tribunal relied upon by Mr. Angou (the Garrison decision is referred to by the ICP but is not contained in the record and no submissions were made in relation to it).  He commented on the difficulties inherent in obtaining certificates of analysis.  He reiterated that Mr. Angou was clearly in possession of a powder substance in a cellophane package.  The ICP then stated:

My conclusion is that the Correctional Service of Canada has discharged the proof, a burden of proof, upon it as imposed by the Act through the use of the NIK test and, as well, other indicia as admitted in proving the identity of the substance in question.  And further I find that the substance in question was indeed cocaine.

 

 

 

The Relevant Statutory Provisions

 

[10]      The statutory provisions pertinent to this matter are brief and are therefore reproduced here.

 

 

The Standard of Review

[11]      Referring to the pragmatic and functional analysis conducted by the Chief Justice in Dasilva v. Canada (Attorney General) 2006 FC 508, F.C.J. No. 636, the parties agree that the applicable standard of review is reasonableness.  I am content with that standard and, in accordance with Dasilva, frame the issue as one that asks “was the Independent Chairperson ‘clearly wrong’ in finding the applicant guilty… in the light of the legislative scheme and the evidence adduced?”

 

Analysis

[12]      Mr. Angou contends that this court, in the context of prison disciplinary proceedings has defined guilt beyond reasonable doubt.  The law requires that there is no other reasonable inference, based on the facts and circumstances of a case, to be rationally drawn, other than guilt.  A finding of guilt cannot be based on speculation, conjecture, or on ambiguous evidence: McLarty v. Canada (1997), 133 F.T.R. 11 (T.D.); Taylor v. Canada (Attorney General) 2004 FC 1536, F.C.J. No. 1851.  The ICP confused the definition of guilt beyond a reasonable doubt by equating it to moral certainty. 

 

[13]      The respondent counters that it is clear from the transcript that the ICP understood and properly applied the test and that Mr. Angou’s references to a definition constitute nothing more than alternative articulations.

 

[14]      The Supreme Court of Canada, in R. v. Lifchus, [1997] 3 S.C.R. 320, cautioned against equating the phrase “moral certainty” with the standard of proof beyond a reasonable doubt:

25     Nor is it helpful to describe proof beyond a reasonable doubt simply as proof to a "moral certainty". I agree with Wood J.A. in Brydon, supra, and with Proulx J.A. in R. v. Girard (1996), 109 C.C.C. (3d) 545 (Que. C.A.), at p. 554, that this expression, although at one time perhaps clear to jurors, is today neither descriptive nor helpful. Moreover, as the United States Supreme Court recognized in Victor, supra, at pp. 596-97, there is great strength and persuasion in the position put forward that "moral certainty" may not be equated by jurors with "evidentiary certainty". Thus, if the standard of proof is explained as equivalent to "moral certainty", without more, jurors may think that they are entitled to convict if they feel "certain", even though the Crown has failed to prove its case beyond a reasonable doubt. In other words, different jurors may have different ideas about the level of proof required before they are "morally certain" of the accused’s guilt. Like the United States Supreme Court, I think that this expression, although not necessarily fatal to a charge on reasonable doubt, should be avoided.

 

 

[15]      In summarizing its position, the Supreme Court stated:

36     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.

 

37     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".

 

 

[16]      The ICP relied upon R. v. Jenkins (1996), 29 O.R. (3d) 30 (C.A.) and, from it, extracted the proposition that “reasonable doubt does not mean mathematical certainty, rather it means ‘certainness of guilt’ or is often referred to as ‘moral certainty’”.  While the noted excerpt can be found in the decision, the ICP appears to have misconstrued the court’s reasoning in totality.  The Ontario Court of Appeal acknowledged the long-standing history associated with the use of “moral certainty” in Canadian jurisprudence, but explained that the province would not suffer if the phrase was no longer used to explain reasonable doubt.  It also stated that in circumstances where the phrase was used alone to explain proof beyond reasonable doubt, the standard is diluted so that it may constitute a fatal flaw.

 

[17]      That said, when the matter is viewed in its entirety, including the transcript of the discourse between Mr. Angou’s counsel and the ICP, it appears to me that, although his articulation may be borderline, the ICP did not equate the meaning of proof beyond reasonable doubt solely to “moral certainty”. 

 

[18]      Mr. Angou additionally asserts that the ICP’s decision was unreasonable in view of the reliance on irrelevant considerations such as the difficulties associated with alternative testing procedures, the admission that the evidence concerning the frequency of false positive test results was “ambiguous” and the conclusions that the test’s certainty countervailed false positive results without any reference to the evidence. 

 

[19]      The respondent points to Mr. Angou’s failure to tender evidence that the NIK test rendered an incorrect result.  Further, the respondent maintains that the evidence was to the effect that the NIK test provides a “presumptive” identification of drugs and allows for a high degree of certainty.  These factors and Mr. Anjou’s admissions to possession of white powder in a cellophane package, together with the results of the NIK test, were sufficient to discharge the burden of proof beyond reasonable doubt.

           

[20]      Much debate centered on the “presumptive only” nature of the NIK and the necessity for certificates of analysis in criminal proceedings.  It is clear from R. v. Sherman (2004), O.A.C. 198 (Ont. C.A.) – a case dealing with the continuity of evidence, but including a discussion on the nature of the NIK test – that the NIK test is a superficial screening device that cannot be relied upon to establish that the whitish powder is (in that case) heroin.  Rather, regard must be had to the certificates of analysis.

 

[21]      The respondent also urges that consideration be given to the context.  Prison disciplinary proceedings must be expeditious and informal.  I have no difficulty with the proposition that prison disciplinary proceedings are to occur in an “orderly and timely fashion for the efficient and proper administration of disciplinary justice in a correctional institution”.  Nonetheless, the statute prescribes the standard of proof to be applied in those proceedings and the standard is proof beyond reasonable doubt. 

 

[22]      The evidence, on the record before me, is not such that I am in a position to determine whether certificates of analysis ought to be required.  The arguments did not focus on this issue.  Rather, they revolved around the nature of the NIK.  With the exception of the gratuitous comment of the ICP as to the difficulties associated with obtaining certificates of analysis, the record is, in all other respects, completely silent in this regard.  The NIK manual, which both the ICP and Mr. Angou’s counsel reviewed, is not in the record.  Thus, absent the benefit of documentation and submissions, it is inappropriate for me to address the issue of certificates of analysis.  That issue is best left for another day when developed arguments are available.

 

[23]      Here, the onus was on CSC to establish beyond a reasonable doubt that Mr. Angou had committed the disciplinary offence.  I disagree with the respondent that Mr. Anjou’s failure to produce additional evidence contributes to the reasonableness of the ICP’s decision of guilt beyond reasonable doubt.  Mr. Angou’s obligation, if it can be described this way, was simply to raise reasonable doubt.  He was not required to prove anything.  It was for CSC to demonstrate that the NIK test results (in combination with other evidence) were sufficient to discharge its onus.

 

[24]      Having described portions of page one of the NIK Manual as “ambiguous” and “self-serving”, the ICP then relied upon those statements (as well as Mr. Anjou’s admission to possession of a white powdery substance, not admitted to be cocaine) to prove the identity of the substance, which he then concluded was cocaine.

 

[25]      It is helpful to measure the passages from the NIK Manual, reproduced below and relied upon by the ICP, against the evidence.

The NIK system employs a chemical colour-metric comparisons as the means by which narcotics and other controlled substances are screened and presumptively identified.  Each test packet contained a pre-formulated series of discreet chemicals that are known to react colour-metrically in a predictable sequence of the presence of the most commonly known narcotics.  When the predicted colour reaction occurs while following the recommended test sequence, a positive identification is presumed.

 

The results of a single test may or may not yield a valid result.  However, the sequential results of several tests, if they all indicate a positive reaction for a particular substance, allows a high degree of certainty that the suspect material is in fact what the NIK poly-testing system indicates it to be. (my emphasis)

 

 

 

[26]      The Security Intelligence Officer for CSC could not recall the number of sequential tests that she had completed nor could she recall the colour of the second test.  In a similar vein, the officer was not aware of the level of false positives nor was she aware of any data in this respect.

 

[27]      The ICP rejected the reasoning of the independent chairperson at Warkworth Institution in the Garrison case (not included in the record) which, as nearly as I can gather from the ICP’s reasons, required conservatory or laboratory testing as a requirement of scientific, technical or specialized test milieux to prove the presence of an intoxicant.  In this respect, the ICP stated that it was not for the chairperson to delegate the conclusion to a third party. 

 

[28]      Finally, the ICP opined that he was satisfied that the “testing in question, based upon a high degree of certainty, sufficiently countervails any inherent risk with presumptive tests and false positives”.  With respect, that finding is internally inconsistent when regard is had to the ICP’s statements that the NIK Manual was ambiguous and self-serving.  It is also, in my view, unreasonable when regard is had to the evidence that was before the ICP.

 

[29]      This finding – that the NIK test’s “high degree of certainty countervails any inherent risk with presumptive tests and false positives” – was crucial to the ultimate conclusion.  Aside from being unreasonable on the evidence before the ICP, it is all the more tenuous when consideration is given to the “borderline” articulation, by the ICP, regarding the standard of proof beyond reasonable doubt.  The entire process is tainted by these shortcomings.  In sum, the analysis and reasons of the ICP, on the evidence, do not withstand a somewhat probing examination.  Further, for the foregoing reasons, I find that the ICP’s conclusion is clearly wrong.  Consequently, the application for judicial review will be allowed.

 

[30]      Both parties requested costs and both suggested the all inclusive amount of $1,600 as being appropriate.  Costs normally follow the event and counsel for the respondent did not suggest that it should be otherwise.  However, counsel disclosed that $1,600 would be at the upper range of column 3 of Tariff B.  No justification for deviating from the middle range was provided.  In the exercise of my discretion, I will award costs to the applicant in the all inclusive amount of $1,200.

 

 

 

 

 

 

 

 

 

ORDER

 

            THIS COURT ORDERS THAT the application for judicial review is allowed and the matter is remitted for determination before a different Independent Chairperson.  Costs are awarded to the applicant, to be paid by the respondent, in the all inclusive amount of $1,200.

 

 

“Carolyn Layden-Stevenson”

 

 

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-272-06

 

STYLE OF CAUSE:                          CHOL ANGOU

                                                            and

                                                            THE ATTORNEY GENERAL OF CANADA

 

 

 

PLACE OF HEARING:                    Ottawa, Ontario

 

DATE OF HEARING:                      December 4, 2006

 

REASONS FOR ORDER

AND ORDER:                                   Layden-Stevenson J.

 

DATED:                                             December 6, 2006

 

 

 

APPEARANCES:

 

Mr. Philip Kenneth Casey	FOR THE APPLICANT
Ms. Elizabeth Kikuchi	FOR THE RESPONDENT

 

 

SOLICITORS OF RECORD:

 

Mr. Philip Kenneth Casey Barrister and Solicitor Kingston, Ontario	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT