Swift v. Canada (Attorney General), (2014) 469 F.T.R. 137 (FC)

• Judge: Bédard, J.
• Court: Federal Court (Canada)
• Case Date: October 06, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 469 F.T.R. 137 (FC);2014 FC 1143

Swift v. Can. (A.G.) (2014), 469 F.T.R. 137 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. DE.015

Micheal Swift (demandeur) v. Procureur général du Canada (défendeur)

(T-711-14; 2014 CF 1143; 2014 FC 1143)

Indexed As: Swift v. Canada (Attorney General)

Federal Court

Bédard, J.

December 1, 2014.

Summary:

An inmate applied for judicial review of a decision rendered by an independent chairperson, under which he was found guilty of committing a serious offence, namely, triggering the emergency alarm in his cell without valid reason.

The Federal Court dismissed the application.

Prisons - Topic 1541.1

Discipline - Inmates - Offences - Minor versus serious offence (incl. joint recommendation) - An inmate applied for judicial review of a decision rendered by an independent chairperson (ICP), under which he was found guilty of committing a serious offence, namely, triggering the emergency alarm in his cell without valid reason - The inmate argued that the ICP erred in refusing to conclude that the offence related to a minor rather than a serious offence - This raised three sub-issues, including whether the ICP erred in disregarding the joint recommendation presented by the parties respecting the category of the offence - The Federal Court stated that Parliament's intention was clearly indicated: the ICP had an obligation to consider a joint recommendation by the parties in the context of sentencing, but there was no intent to impose this same obligation on the ICP in the context of reviewing a charge to determine whether it actually related to a serious offence - See paragraphs 52 to 57.

Prisons - Topic 1541.1

Discipline - Inmates - Offences - Minor versus serious offence (incl. joint recommendation) - An inmate applied for judicial review of a decision rendered by an independent chairperson (ICP), under which he was found guilty of committing a serious offence, namely, triggering the emergency alarm in his cell without valid reason - The inmate argued that the ICP erred in refusing to conclude that the offence related to a minor rather than a serious offence - This raised three sub-issues, including whether the ICP erred in ruling on the category of the disciplinary offence before even hearing the evidence - The Federal Court answered the question in the negative - Section 30(3) of the Corrections and Conditional Release Regulations clearly indicated that the ICP had to review the category of the offence in question before the hearing, so this review had to occur before the evidence was presented - The ICP's role at this stage was not to determine whether the evidence showed that the inmate committed the offence, but to determine whether the alleged actions did indeed correspond to a serious disciplinary offence - See paragraph 58.

Prisons - Topic 1541.1

Discipline - Inmates - Offences - Minor versus serious offence (incl. joint recommendation) - An inmate applied for judicial review of a decision rendered by an independent chairperson (ICP), under which he was found guilty of committing a serious offence, namely, triggering the emergency alarm in his cell without valid reason - The inmate argued that the ICP erred in refusing to conclude that the offence related to a minor rather than a serious offence - This raised three sub-issues, including whether the ICP erred in his interpretation of Commissioner's Directive 580 - Discipline of Inmates (CD 580) - The Federal Court rejected the argument - In his decision, the ICP explained why he felt that the offence in question constituted a serious offence, and his explanations showed that he considered the action committed by the inmate raised issues related to safety and emergencies - Given that the actions that the inmate was accused of committing, namely, pressing the alarm button in his cell, which was only supposed to be done in emergency situations, it was not unreasonable to conclude, in light of the definitions provided for each category of offence, that the offence which the inmate was accused of committing was a major offence - Indeed, triggering an emergency alarm without a valid reason could be viewed as a serious safety breach - Triggering the alarm in a cell was reserved for emergency situations, and trivializing the importance of limiting its use to emergency situations could compromise the safety of inmates and staff - Considering the nature of the action that the inmate was accused of committing, the ICP's interpretation of CD 580 was reasonable - See paragraphs 59 to 65.

Prisons - Topic 1543

Discipline - Inmates - Offences - Evidence and burden of proof - [See both Prisons - Topic 1566 ].

Prisons - Topic 1544.1

Discipline - Inmates - Offences - Acts likely to jeopardize security of institution - [See third Prisons - Topic 1541.1 ].

Prisons - Topic 1565

Discipline - Inmates - Judicial review or appeals - Scope of (incl. standard) - An inmate applied for judicial review of a decision rendered by an independent chairperson (ICP), under which he was found guilty of committing a serious offence, namely, triggering the emergency alarm in his cell without valid reason - The inmate argued, inter alia, that the ICP erred in refusing to conclude that the offence related to a minor offence rather than a serious offence - This raised three sub-issues: did the ICP err in disregarding the joint recommendation presented by the parties respecting the category of the offence; did the ICP err in ruling on the category of the disciplinary offence before even hearing the evidence; and did the ICP err in his interpretation of Commissioner's Directive 580 - Discipline of Inmates (CD 580)? - The Federal Court stated that "The first issue in dispute and the three related sub-issues raise mixed questions of fact and law, but ... it is possible to isolate questions of law from them. The ICP's decision to refuse to amend the charge to a charge relating to a minor offence suggested an interpretation of subsection 30(3) of the Regulations and certain provisions of CD 580." - The court determined the standard of review - The court held that the ICP's interpretation of the Act, Regulations and CD 580 had to be reviewed on the reasonableness standard - See paragraphs 21 to 31.

Prisons - Topic 1565

Discipline - Inmates - Judicial review or appeals - Scope of (incl. standard) - An inmate applied for judicial review of a decision rendered by an independent chairperson (ICP), under which he was found guilty of committing a serious offence, namely, triggering the emergency alarm in his cell without valid reason - The inmate argued, inter alia, that the ICP erred in concluding that the evidence demonstrated beyond a reasonable doubt that he had committed the offence with which he was charged - This raised two sub-issues: did the ICP breach his duty of procedural fairness by refusing to allow the inmate's application for non-suit; and did the ICP err in concluding that the offence had been proven beyond a reasonable doubt? - The Federal Court held that the first sub-issue raised a question concerning procedural fairness, which was not subject to deference and was reviewable on the standard of correctness - The second sub-issue, which concerned the ICP's assessment of the inmate's guilt, raised a mixed question of fact and law which had to be reviewed by applying the standard of reasonableness - Another issue, being whether the ICP erred in deviating from the joint recommendation submitted by the parties with respect to the sentence to be imposed, also raised a mixed question of fact and law that was subject to the standard of reasonableness - See paragraphs 32 to 34.

Prisons - Topic 1566

Discipline - Inmates - Judicial review or appeals - Grounds - An inmate applied for judicial review of a decision rendered by an independent chairperson (ICP), under which he was found guilty of committing a serious offence, namely, triggering the emergency alarm in his cell without valid reason - At issue, inter alia, was whether the ICP erred in concluding that the evidence demonstrated beyond a reasonable doubt that the inmate had committed the offence with which he was charged - A sub-issue was whether the ICP breached his duty of procedural fairness by refusing to allow the inmate's application for non-suit - In the inmate's opinion, the testimony of Bonneau was clearly insufficient to conclude that he had in fact triggered the alarm in his cell without valid reason because Bonneau could not provide any testimony on his reasons for triggering the alarm - He could only recall that he had been informed by the CX-4 officer, whose identity he could not remember, that there was no justification for triggering the alarm - The Federal Court rejected the argument - The ICP was not bound by the rules of evidence in civil and criminal matters, and he accepted Bonneau's testimony that the CX-4 officer had clearly reported that there was no emergency and therefore no justification for triggering the alarm - The court did not need to make a final determination on whether Bonneau's testimony was sufficient to support a finding of guilt beyond a reasonable doubt because the inmate subsequently opted to testify - The court rejected the inmate's claim that the ICP's decision somehow forced him to testify - He could very well have chosen not to testify and to await the ICP's final decision, which would then have been rendered on the basis of the evidence presented up to that point - However, in deciding to testify and in explaining why he chose to trigger the alarm, the inmate himself provided the missing piece of evidence - Consequently, his testimony allowed the ICP to learn and appreciate the inmate's reasons for triggering the alarm - See paragraphs 66 to 74.

Prisons - Topic 1566

Discipline - Inmates - Judicial review or appeals - Grounds - An inmate applied for judicial review of a decision rendered by an independent chairperson (ICP), under which he was found guilty of committing a serious offence, namely, triggering the emergency alarm in his cell without valid reason - The Federal Court held that the ICP did not err in concluding that the evidence demonstrated beyond a reasonable doubt that the inmate had committed the offence with which he was charged - The act of triggering the alarm without a valid reason was clearly tantamount to triggering the alarm unnecessarily - The reasons provided by the ICP also clearly indicated that he believed that the inmate had triggered the alarm without having a valid reason to do so - As regards the medical reason claimed by the inmate, the ICP held that the circumstances did not justify triggering the alarm in the cell - The inmate further claimed that the ICP should have made a determination on whether he had acted wilfully as opposed to just recklessly - The evidence clearly showed that the inmate triggered the alarm wilfully - His evidence was that he triggered the alarm because he wanted to speak to a corrections officer in order to obtain medication - The inmate deemed that the situation justified triggering the alarm, and he never stated that he had acted recklessly - Based on the evidence, one could easily infer from the ICP's decision that he believed that the inmate had acted wilfully - See paragraphs 75 to 78.

Prisons - Topic 1585

Discipline - Sentence - Joint recommendation - An inmate applied for judicial review of a decision rendered by an independent chairperson (ICP), under which he was found guilty of committing a serious offence, namely, triggering the emergency alarm in his cell without valid reason - The inmate argued that the ICP erred in not accepting a joint recommendation on sentence, being three days in segregation without privileges, to be suspended for 90 days - The recommendation was based on the fact that it was the inmate's first offence and that there had not been any serious consequences - Instead, the ICP chose to sentence the inmate to five days in segregation without television, to be suspended for 90 days - The ICP explained that he had added two days because he did not believe that the inmate realized that he had committed a serious offence that should never be repeated - The Federal Court found nothing unreasonable in the ICP's reasoning or the sentence imposed - The court stated that "A recommendation by the parties constitutes one of the factors that the ICP is required to consider, but it is not the only relevant criterion. The ICP must also consider the seriousness of the offence and all relevant aggravating and mitigating circumstances. I therefore find that section 34 of the [Corrections and Conditional Release] Regulations clearly shows that the ICP is not bound by a joint recommendation proposed by the parties. In this case, the parties had suggested a suspended sentence of three days in segregation without privileges. The ICP deviated slightly from this recommendation by increasing the number of days to five, and the ICP clearly explained why he was imposing a sentence of five days ..." - See paragraphs 79 to 82.

Statutes - Topic 502

Interpretation - General principles - Intention of Parliament - [See first Prisons - Topic 1541.1 ].

Cases Noticed:

Bonamy v. Canada (Attorney General) (2010), 378 F.T.R. 71; 2010 FC 153, refd to. [para. 21].

McDougall v. Canada (Attorney General) (2011), 419 N.R. 304; 2011 FCA 184, refd to. [para. 22].

Sweet v. Canada (Attorney General) et al. (2005), 332 N.R. 87; 2005 FCA 51, refd to. [para. 24].

Yu v. Canada (Attorney General) (2011), 414 N.R. 283; 2011 FCA 42, refd to. [para. 24].

Mercier v. Correctional Service of Canada et al. (2010), 404 N.R. 275; 320 D.L.R.(4th) 429; 2010 FCA 167, refd to. [para. 24].

Lemoy v. Canada (Attorney General), [2009] F.T.R. Uned. 869; 2009 FC 448, refd to. [para. 27].

Cyr v. Canada (Attorney General), [2011] F.T.R. Uned. 122; 2011 FC 213, refd to. [para. 27].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 31].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 31].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 31].

Canadian Human Rights Commission v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 31].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, appld. [para. 31].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 31].

Canadian National Railway Co. v. Canada (Attorney General) et al. (2014), 458 N.R. 150; 2014 SCC 40, refd to. [para. 31].

National Gallery of Canada v. Canadian Artists' Representation et al. (2014), 458 N.R. 233; 2014 SCC 42, refd to. [para. 31].

Ontario (Minister of Finance) v. Smith et al. (2014), 457 N.R. 40; 320 O.A.C. 135; 2014 SCC 36, refd to. [para. 31].

John Doe v. Ontario (Minister of Finance) - see Ontario (Minister of Finance) v. Smith et al.

Ontario (Minister of Community Safety and Correctional Services) v. Information and Privacy Commissioner (Ont.) et al., [2014] 1 S.C.R. 674; 457 N.R. 2; 320 O.A.C. 1; 2014 SCC 31, refd to. [para. 31].

Khela v. Mission Institution (Warden) et al., [2014] 1 S.C.R. 502; 455 N.R. 279; 351 B.C.A.C. 91; 599 W.A.C. 91; 2014 SCC 24, refd to. [para. 32].

Gendron v. Canada (Attorney General) (2012), 405 F.T.R. 125; 2012 FC 189, refd to. [para. 32].

Obeyesekere v. Canada (Attorney General) et al. (2014), 453 F.T.R. 9; 2014 FC 363, refd to. [para. 32].

Forrest v. Canada (Attorney General) (2002), 219 F.T.R. 82; 2002 FCT 539, affd. (2004), 320 N.R. 159; 2004 FCA 156, refd to. [para. 33].

Brennan v. Canada (Attorney General) (2009), 338 F.T.R. 311; 2009 FC 40, refd to. [para. 33].

Tremblay v. Canada (Attorney General), [2011] F.T.R. Uned. 242; 2011 FC 404, refd to. [para. 33].

Piché v. Canada (Attorney General) (2013), 434 F.T.R. 170; 2013 FC 652, refd to. [para. 33].

Ayotte v. Canada (Procureur général) (2003), 320 N.R. 339; 2003 FCA 429, refd to. [para. 67].

Statutes Noticed:

Corrections and Conditional Release Act Regulations (Can.), SOR/92-620, sect. 30(3) [para. 49]; sect. 34 [para. 79].

Corrections and Conditional Release Regulations - see Corrections and Conditional Release Act Regulations (Can.).

Counsel:

Rita Magloé Francis, for the applicant;

Claudia Gagnon, for the respondent.

Solicitors of Record:

Rita Magloé Francis, Montreal, Quebec, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Montreal, Quebec, on October 6, 2014, by Bédard, J., of the Federal Court, who delivered the following decision on December 1, 2014.