Desouza v. Director of Calgary Correctional Centre et al., (2008) 450 A.R. 127 (QB)

• Judge: Park, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 28, 2007
• Citations: (2008), 450 A.R. 127 (QB);2008 ABQB 294

Desouza v. Dir. Calgary Correctional (2008), 450 A.R. 127 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JN.021

In The Matter Of an Application for Habeas Corpus and Judicial Review Pursuant to Parts 56, 56.1 and 60 of the Alberta Rules of Court and Section 24(1) of the Canadian Charter of Rights and Freedoms

Darcy Desouza (applicant) v. The Director of the Calgary Correctional Centre and the Disciplinary Board of the Calgary Correction Centre (respondents)

(0601 06723; 2008 ABQB 294)

Indexed As: Desouza v. Director of Calgary Correctional Centre et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Park, J.

June 3, 2008.

Summary:

Desouza sought judicial review in the nature of habeas corpus with certiorari in aid setting aside the decisions of the respondents (the Director and the Disciplinary Board of the Calgary Correctional Centre) whereby Desouza was convicted of assaulting another inmate and punished with, inter alia, the forfeiture of 10 days of earned remission and 10 days in disciplinary segregation. Desouza also sought a declaration that his ss. 7 and 10(b) Charter rights had been infringed by the respondents' conduct, and a remedy pursuant to ss. 10(c) or 24(1) or (2) of the Charter. The Board's decision convicting Desouza and revoking 10 days of his earned remission was stayed pending the outcome of the judicial review application. Desouza had served his 10 days in disciplinary segregation and he had completed his sentence on his Criminal Code convictions. If he was unsuccessful in his judicial review application he would be required to serve the revoked 10 days of earned remission.

The Alberta Court of Queen's Bench found that Desouza had been denied procedural fairness where there had been inadequate disclosure and the Board gave inadequate consideration to Desouza's theory of self-defence. The court granted Desouza's application for habeas corpus with certiorari in aid and set aside the decisions with respect to the finding of guilt and the subsequent imposition of loss of 10 days of earned remission. The court declined to make a declaration respecting any alleged breach of Desouza's Charter rights, holding that on the factual basis of this application it was too premature for such a declaration to be made.

Administrative Law - Topic 550

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Effect of lack of - [See Prisons - Topic 1547 ].

Administrative Law - Topic 2492

Natural justice - Procedure - At hearing - Right to representation (incl. counsel) - [See Prisons - Topic 1606 ].

Administrative Law - Topic 2617

Natural justice - Evidence and proof - Disclosure - [See Prisons - Topic 1503 ].

Civil Rights - Topic 8585

Canadian Charter of Rights and Freedoms - Practice - Time for deciding Charter issues - Desouza sought judicial review in the nature of habeas corpus with certiorari in aid setting aside the decisions of the respondents (the Director and the Disciplinary Board of the Calgary Correctional Centre) whereby Desouza was convicted of assaulting another inmate and punished with, inter alia, the forfeiture of 10 days of earned remission and 10 days in disciplinary segregation - Desouza also sought a declaration that his ss. 7 and 10(b) Charter rights had been infringed by the respondents' conduct - The Alberta Court of Queen's Bench found that Desouza had been denied procedural fairness and it set aside the decisions with respect to the finding of guilt and the subsequent imposition of loss of 10 days of earned remission - The court declined to make a declaration respecting any alleged breach of Desouza's Charter rights, holding that on the factual basis of this application it was too premature for such a declaration to be made - The court stated that it was not prepared to find a Charter breach in circumstances where it would normally return the matter to the Board for a new hearing - The only reason that the matter was not returned to the Board in this case was because Desouza had completed his sentence and was no longer a serving prisoner - See paragraphs 52 to 62.

Prisons - Topic 1503

Discipline - Inmates - General - Inmate's right to information re alleged offence - Desouza sought judicial review in the nature of habeas corpus with certiorari in aid setting aside the decisions of the respondents (the Director and the Disciplinary Board of the Calgary Correctional Centre) whereby Desouza was convicted of assaulting another inmate and punishment was imposed - The Alberta Court of Queen's Bench held that there was inadequate disclosure where Desouza was not provided with four documents which would have permitted him to address the evidence which was prejudicial to his case and proffer evidence which supported his theory of self-defence - In summary, he was not provided with sufficient information to enable him to know the case to be met by him - See paragraphs 39 to 43.

Prisons - Topic 1547

Discipline - Inmates - Offences - Assault - Desouza sought judicial review in the nature of habeas corpus with certiorari in aid setting aside the decisions of the respondents (the Director and the Disciplinary Board of the Calgary Correctional Centre) whereby Desouza was convicted of assaulting another inmate and punishment was imposed - The Alberta Court of Queen's Bench held that the Board should have fairly examined Desouza's actions and thoughts set out in the documentation which might have justified his theory of self-defence - The Board's failure to conduct such an inquiry and to more fully explore the theory of self-defence amounted to a lack of procedural fairness - The Board failed to consider a theoretical defence and failed to inquire into the evidential circumstances, available in the documentation and on the record, which might have supported the defence - The absence of reasons provided by the Board to support the finding of guilt and the Board's failure to consider self-defence led the court to conclude that procedural fairness did not take place - In such a situation Desouza may have been found guilty on the basis of an absolute liability offence rather than on the basis of a strict liability offence - The principles of fundamental justice were not met - See paragraphs 44 to 49.

Prisons - Topic 1604

Discipline - Inmates - Disciplinary hearing - Reasons for decision - [See Prisons - Topic 1547 ].

Prisons - Topic 1606

Discipline - Inmates - Disciplinary hearing - Right to counsel - Desouza sought judicial review in the nature of habeas corpus with certiorari in aid setting aside the decisions of the respondents (the Director and the Disciplinary Board of the Calgary Correctional Centre) whereby Desouza was convicted of assaulting another inmate and punishment was imposed - Desouza argued that the Board's failure to consider whether he required legal counsel deprived him of the right to a fair hearing - The Alberta Court of Queen's Bench found that the Board never considered whether Desouza required a lawyer to have a fair hearing under the requirements of its Policy Manual - However, the court held that "Despite the Board not addressing its guidelines, Desouza's lack of action and the Board's two adjournments to allow him to obtain legal counsel did not constitute a breach of the principles of natural justice or result in procedural unfairness" - The Board was correct in proceeding when Desouza took no steps to obtain legal counsel - The Board could not wait indefinitely if an accused offender chose to do nothing to obtain legal counsel after the Board had provided adjournments for that purpose - The offender was required to be reasonably diligent in obtaining legal counsel - See paragraphs 32 to 38.

Prisons - Topic 1607

Discipline - Inmates - Disciplinary hearing - Procedural fairness - [See Prisons - Topic 1503 and Prisons - Topic 1547 ].

Cases Noticed:

May et al. v. Ferndale Institution et al., [2005] 3 S.C.R. 809; 343 N.R. 69; 220 B.C.A.C. 1; 362 W.A.C. 1; 2005 SCC 82, refd to. [para. 25].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 28].

Currie v. Edmonton Remand Centre (Director) et al. (2006), 407 A.R. 275; 2006 ABQB 858, refd to. [para. 37].

Balian v. Regional Transfer Board and Warden of Joyceville Institution (1988), 62 C.R.(3d) 258 (Ont. S.C.), refd to. [para. 41].

Counsel:

Michael Bates, for the applicant;

Christine Nugent, for the respondent.

This application was heard on June 28, 2007, before Park, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on June 3, 2008.