McWhinney v. Commissioner of Corrections (Can.) et al., (1996) 117 F.T.R. 81 (TD)

• Judge: Campbell, J.
• Court: Federal Court (Canada)
• Case Date: June 06, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 117 F.T.R. 81 (TD)

McWhinney v. Commr. of Corrections (1996), 117 F.T.R. 81 (TD)

MLB headnote and full text

Richard William McWhinney (applicant) v. The Commissioner of Corrections and The Warden of Edmonton Institution (respondents)

(T-862-95)

Indexed As: McWhinney v. Commissioner of Corrections (Can.) et al.

Federal Court of Canada

Trial Division

Campbell, J.

July 26, 1996.

Summary:

On October 12, 1994, McWhinney, an inmate at the Edmonton Institution, was granted full parole by the National Parole Board provided, inter alia, that (i) he reside at Gunn Centre; (ii) parole would be effec­tive when bed space was available at Gunn Centre; and (iii) all leaves and passes from Gunn Centre were to be in the company of a civilian escort approved by McWhinney's parole supervisor. Because Gunn Centre was not sufficiently staffed to supervise Mc­Whinney while he was on leave, he was still at the Edmonton Institution in January 1995, when a demand was made for a urine sample. After refusing to comply with the demand, McWhinney was charged with failing to provide a urine sample, contrary to the Corrections and Conditional Release Act, s. 40(1).

The Independent Chairperson of the Inmate Disciplinary Court of the Edmonton Institu­tion found McWhinney guilty. McWhinney sought judicial review.

The Federal Court of Canada, Trial Divi­sion, allowed the application and quashed the Independent Chairperson's guilty verdict.

Administrative Law - Topic 1058.2

Classification of power or function - Powers or functions classified as adminis­trative - Discipline of prison inmates - The Federal Court of Canada, Trial Divi­sion, reviewed the duty of an inmate disci­plinary body with respect to procedural fairness - Particularly, the court discussed whether mistake of fact could be a valid defence in inmate disciplinary proceedings - See para­graphs 1 to 16, 22 to 25, 27 and 29 to 34.

Administrative Law - Topic 1058.2

Classification of power or function - Powers or functions classified as adminis­trative - Discipline of prison inmates - In reviewing the duty of an inmate disciplin­ary body respecting procedural fairness, the Federal Court of Canada, Trial Divi­sion, stated that while there appeared to be no absolute right to be able to present full answer and defence in disciplinary hear­ings, there was a duty to examine both sides of the question - Accordingly, to deny an inmate a defence of mistake of fact at a disciplinary hearing, when it was his only defence, was to deny him a full and fair hearing - See paragraphs 1 to 16, 22 to 25, 27 and 29 to 34.

Prisons - Topic 1113

Administration - Prisoners' rights - Man­datory urine testing - On October 12, 1994, McWhinney, an inmate at the Edmonton Institution, was granted full parole by the National Parole Board pro­vided that he reside at Gunn Centre and provided that other conditions were met - Because Gunn Centre was not sufficiently staffed to impose all the required condi­tions, McWhinney was still at the Edmonton Institution in January 1995, when a demand for a urine sample was made - After refusing to comply with the demand, McWhinney was found guilty of failing to provide a urine sample, contrary to the Corrections and Conditional Release Act, s. 40(1) - McWhinney sought judicial review - He asserted that because he had been granted parole, he was not an "inmate" under the Act at the time the request was made and therefore it was not valid - The Federal Court of Canada, Trial Division, reviewed the relevant provisions of the Act and rejected McWhinney's argument - See paragraphs 1 to 21, 26 and 28.

Prisons - Topic 1113

Administration - Prisoners' rights - Man­datory urine testing - On October 12, 1994, McWhinney, an inmate at the Edmonton Institution, was granted full parole by the National Parole Board pro­vided that he reside at Gunn Centre and that other conditions were met - Because Gunn Centre was not sufficiently staffed to impose all the required conditions, Mc­Whinney was still at the Edmonton Insti­tution in January 1995, when a demand for a urine sample was made - McWhinney refused to comply with the demand, be­lieving that there was a conspiracy against him respecting his parole - McWhinney was found guilty of failing to provide a urine sample, contrary to the Corrections and Conditional Release Act, s. 40(1) - McWhinney sought judicial review, argu­ing that the Chairperson erred in law in concluding that the defence of "mistake of fact" (i.e., respecting the conspiracy) was not open to McWhinney - The Federal Court of Canada, Trial Division allowed the application - See paragraphs 1 to 16, 22 to 25, 27 and 29 to 34.

Prisons - Topic 1122

Administration - Prisoners' rights - Right to a fair hearing - [See second Adminis­trative Law - Topic 1058.2 ].

Words and Phrases :

Inmate - The Federal Court of Canada, Trial Division, discussed the meaning of this word as used in s. 40 of the Correc­tions and Conditional Release Act - See paragraphs 1 to 21, 26 and 28.

Cases Noticed:

R. v. Mansour (1979), 27 N.R. 476 (S.C.C.), refd to. [para. 17].

R. v. Johnston (1979), 20 A.R. 524 (Q.B.), refd to. [para. 17].

Cunningham v. Canada, [1993] 2 S.C.R. 143; 151 N.R. 161; 62 O.A.C. 243; 80 C.C.C.(3d) 493, refd to. [para. 20].

Dumas v. National Parole Board, [1986] 2 S.C.R. 459; 72 N.R. 61; 3 Q.A.C. 133; 30 C.C.C.(3d) 129, refd to. [para. 20].

R. v. Hess; R. v. Nguyen, [1990] 2 S.C.R. 906; 119 N.R. 353; 46 O.A.C. 13; 73 Man.R.(2d) 1; 3 W.A.C. 1; 59 C.C.C.(3d) 161, refd to. [para. 23].

Gregory v. Edmonton Institution (Warden) et al. (1995), 164 A.R. 157 (Q.B.), refd to. [para. 26].

Stocking v. Joyceville Institution Disci­plinary Court et al. (1995), 98 F.T.R. 157 (T.D.), refd to. [para. 27].

Martineau v. Matsqui Institution Disciplin­ary Board, [1980] 1 S.C.R. 602; 30 N.R. 119; 50 C.C.C.(2d) 353; 106 D.L.R.(3d) 385; 13 C.R.(3d) 1, refd to. [para. 29].

Hendrickson v. Kent Institution Disciplin­ary Court (Independent Chairperson) (1990), 32 F.T.R. 296 (T.D.), refd to. [para. 30].

Canada (Procureur général) v. Plante (1995), 103 F.T.R. 161 (T.D.), refd to. [para. 30].

Statutes Noticed:

Corrections and Conditional Release Act, S.C. 1992, c. 20, sect. 2(1), sect. 40(1), sect. 54, sect. 55, sect. 56, sect. 57 [para. 15]; sect. 94 [para. 18].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Stat­utes (2nd Ed. 1983), pp. 207, 208 [para. 17]; 208 to 211 [para. 22].

Maxwell, Interpretation of Statutes (12th Ed. 1976), pp. 238 to 251, esp. at 240 to 244 [para. 17].

Counsel:

Charles B. Davison, for the applicant;

Larry M. Huculak, for the respondents.

Solicitors of Record:

Charles B. Davison, Edmonton, Alberta, for the applicant;

George Thomson, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondent.

This application was heard on June 6, 1996, at Edmonton, Alberta, before Campbell, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on July 26, 1996.