A-532-02
2003 FCA 244
Her Majesty the Queen (Appellant)
v.
Guy Laplante (Respondent)
Indexed as: Laplante v. Canada (Attorney General) (C.A.)
Court of Appeal, Décary, Létourneau and Nadon JJ.A.-- Ottawa, May 14 and June 3, 2003.
Penitentiaries -- Inmate charged with disciplinary offence for refusal of order to move to general population from administrative segregation -- Convicted by Board -- F.C.T.D. Judge granting judicial review application as Board lacked jurisdiction due to violation of Corrections and Conditional Release Act, s. 41 mandatory requirement of taking reasonable steps to resolve disciplinary offence informally -- Crown appeal allowed -- Conflicting F.C.T.D. decisions on point -- Issue herein: correct interpretation of s. 41 -- Statutory obligation is on Correctional Services officer, not Board -- Board does not lose jurisdiction for officer's non-compliance -- Chairperson may suspend hearing, remit matter to institutional head for consideration of informal resolution -- Not chairperson's role to interfere in informal settlement Parliament imposed on Correctional Services -- If Board lacking jurisdiction, res judicata principle undermined -- Chairperson's power to remit inferred, not expressed, in legislation -- Convict's s.41 right waived if not raised before Board -- Commissioner's Directive No. 580, paragraph 55 grievance inappropriate procedure to protect convict's s. 41(1) right, could paralyze disciplinary system.
Respondent is a convict, incarcerated at the Donnacona maximum security penitentiary. At his request, he has been in administrative segregation since reincarceration in 1997 when parole was suspended. Under Corrections and Conditional Release Act, subsection 31(2) those so detained are to be placed in the general population at the earliest appropriate time. In October 2000, respondent was ordered to rejoin the general population and upon refusal to comply was charged with a disciplinary offence: having disobeyed an officer's lawful order. Convicted, respondent received a punishment of five day's disciplinary detention with loss of privileges. He applied for judicial review and the Trial Division Judge held that, while the order to leave administrative segregation was lawful, a convict not having the right of choice as to where he shall be situated within a penitentiary, there was here a violation of the mandatory provisions of Act, section 41. That section provides that where a staff member believes that a disciplinary offence has been committed, all reasonable steps are to be taken to resolve the matter informally and only if that attempt fails, to charge the inmate with a disciplinary offence. The Judge relied upon the Trial Division decision in Schimmens v. Canada (Attorney General) in holding that the provision constitutes a precondition to the exercise of the Board's jurisdiction and that it must satisfy itself that there has been an attempt to settle the matter informally. The Judge further held that this duty to investigate is a question of law which can be raised at any time even if not raised before the Board. The Chairperson should have dismissed the charge, given non-compliance with the precondition. This was an appeal by the Crown, the debate being over the proper interpretation of section 41 which has been the subject of a number of conflicting decisions at the Trial Division level.
Held, the appeal should be allowed.
The Judge in Schimmens misdirected himself as to the nature of the obligation is imposed by subsection 41(1) and who is subject to it. The obligation is imposed not upon the Board but on the Correctional Services officer. An inmate has the right to demand that Correctional Services attempt an informal resolution. This obligation to, where possible, dejudicialize is an important component of the system established by the Act for it is aimed at an inmate's rehabilitation and reintegration into the community.
But that did not mean that the Board loses jurisdiction because of the officer's failure to comply with a convict's right. Where a Board is satisfied that the subsection has not been respected, the chairperson may suspend the hearing and return the matter to the institutional head who would then consider the appropriateness of attempting an informal resolution. It is not the chairperson's role to interfere in the informal settlement that Parliament has imposed on the Correctional Services. It is not for the chairperson to substitute his opinion for that of the institutional head who has concluded that an informal resolution was not, in the circumstances, possible. If the matter is returned and informally resolved, the institutional head can withdraw the complaint. If the attempt fails, the chairperson would be so advised and the Board would deal with the charge.
Were section 41 to be interpreted as in Schimmens, the Board would lack jurisdiction to dismiss the charge. Furthermore, this want of jurisdiction could be advanced in subsequent collateral proceedings, thereby undermining the principle of res judicata and calling into question the actions of those who complied with the decision.
While there is no express statutory authority for the chairperson to send a matter back to the institutional head, it can be inferred from certain provisions that such was the intention of Parliament. Under Corrections and Conditional Release Regulations, subsection 30(3), the chairperson is empowered to direct that a charge of a serious offence be dealt with as a minor offence and may either conduct the hearing or refer the matter to the institutional head for hearing. So, it is not unreasonable to conclude that the chairperson should also have the power to return the matter so that an informal resolution can be attempted.
A convict's subsection 41(1) right has to be asserted at the earliest opportunity -- before the Board -- failing which the waiver principle is applicable. Given the wording of the new offence charge form, there is a presumption that the inmate has waived his right if he fails to request of the chairperson that the matter be returned to penitentiary administration. The Judge below erred in concluding that non-compliance with section 41 could be raised, for the first time, upon judicial review.
A grievance proceeding, based on paragraph 55 of the Commissioner's Directive No. 580, is not an effective means of protecting the convict's subsection 41(1) right and it contains the seeds of paralysis of the disciplinary system. A grievance can be heard at three levels and may lead to judicial review in Federal Court. It is doubtful that Parliament intended that, where subsection 41(1) is breached, the desired dejudicialization of the conflict should be replaced by a lengthy, costly judicialization of the convict's right to dejudicialization. Furthermore, the grievance procedure has the effect of staying the hearing of the charge and thereby delays resolution of the conflict, to the detriment of the objectives of the disciplinary system.
statutes and regulations judicially
considered
Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 31(2), 38, 40(a), 41, 42.
| Corrections and Conditional Release Regulations, SOR/92-620, ss. 24, 25, 30(3), 34. |
cases judicially considered
not followed:
Verreault v. Canada (Minister of Citizenship and Immigration), [2002] FCT 1076; [2002] F.C.J. No. 1441 (T.D.) (QL); Forrest v. Canada (Attorney General) (2002), 219 F.T.R. 82 (F.C.T.D.); Schimmens v. Canada (Attorney General) (1998), 157 F.T.R. 118 (F.C.T.D.).
applied:
Caster v. Canada (Attorney General), 2003 FCT 579; [2003] F.C.J. No. 802 (T.D.) (QL); Faucher v. Canada (Attorney General), 2003 FCT 452; [2003] F.C.J. No. 432 (T.D.) (QL); Hanna v. Mission Institution (1995), 102 F.T.R. 275 (F.C.T.D.).
referred to:
Federation of Canadian Municipalities v. AT & T Canada Corp., [2003] 3 F.C. 379; (2002), 34 M.P.L.R. (3d) 221; 299 N.R. 165 (C.A.); Wilson v. R., [1983] 2 S.C.R. 594; (1983), 4 D.L.R. (4th) 577; [1984] 1 W.W.R. 481; 26 Man. R. (2d) 194; 9 C.C.C. (3d) 97; 37 C.R. (3d) 97; 51 N.R. 321; R. v. Sarson, [1996] 2 S.C.R. 223; (1996), 135 D.L.R. (4th) 402; 107 C.C.C. (3d) 21; 49 C.R. (4th) 75; 36 C.R.R. (2d) 1; 197 N.R. 125; 91 O.A.C. 124; R. v. Litchfield, [1994] 3 S.C.R. 333; (1993), 145 A.R. 321; 14 Alta. L.R. (3d) 1; 86 C.C.C. (3d) 97; 25 C.R. (4th) 137; 161 N.R. 161; Clarkson v. The Queen, [1986] 1 S.C.R. 383; (1986), 26 D.L.R. (4th) 493; 69 N.B.R. (2d) 40; 25 C.C.C. (3d) 207; 50 C.R. (3d) 289; 19 C.R.R. 209; 66 N.R. 114; R. v. Hodgson, [1998] 2 S.C.R. 449; (1998), 163 D.L.R. (4th) 577; 127 C.C.C. (3d) 449; 18 C.R. (5th) 135; 230 N.R. 1; 113 O.A.C. 97.
authors cited
Correctional Service Canada. Commissioner's Directive No. 580, "Discipline of Inmates", dated January 24, 1997.
APPEAL from the decision of a Trial Division Judge ([2002] FCT 896; [2002] F.C.J. No. 1190 (T.D.) (QL)) granting an application for judicial review of a Disciplinary Board decision convicting a penitentiary inmate of a disciplinary offence. Appeal allowed.
appearances:
Sébastien Gagné for appellant.
Julie Gagné for respondent.
solicitors of record:
Deputy Attorney General of Canada for appellant.
Labrecque, Robitaille, Roberge, Asselin & Associés, Québec, for respondent.
The following is the English version of the reasons for judgment rendered by
[1]Létourneau J.A.: Was the Judge right to allow the application for judicial review [[2002] FCT 896; [2002] F.C.J. No. 1190 (T.D.) (QL)] and, in the circumstances, to conclude that the Chairperson of the Disciplinary Board (the Board) should have dismissed the offence the respondent was charged with or acquitted him of that offence? Was he justified as well in adopting the respondent's claim that his objection to the jurisdiction of the Board could be raised at any stage of the proceeding and that it did not necessarily need to be made before the Board? I have reached the conclusion that both questions must be answered in the negative. Before giving the reasons, it is necessary to situate this litigation in its factual and legal dimensions, which have resulted in a number of contradictory decisions within the Trial Division: see Verreault v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1076; [2002] F.C.J. No. 1441 (T.D.) (QL); Forrest v. Canada (Attorney General) (2002), 219 F.T.R. 82 (F.C.T.D.); Schimmens v. Canada (Attorney General) (1998), 157 F.T.R. 118 (F.C.T.D.); Caster v. Canada (Attorney General), 2003 FCT 579 [2003] F.C.J. No. 802 (T.D.) (QL); Faucher v. Canada (Attorney General), 2003 FCT 452; [2003] F.C.J. No. 432 (T.D.) (QL) Hanna v. Mission Institution (1995), 102 F.T.R. 275 (F.C.T.D.). I will go back over these decisions in the course of giving my reasons.
Facts and proceedings
[2]The respondent is incarcerated in the Donnacona maximum security penitentiary, close to Québec City. At his request, he has been detained in administrative segregation virtually since his reincarceration in 1997 following a suspension of his parole. Administrative segregation means that an inmate is held apart from the general inmate population and has no relationship with those inmates as a group. However, subsection 31(2) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act) provides that a person held in such conditions should be returned among the other inmates, i.e. to the general inmate population, at the earliest appropriate time. The reasons why an inmate is placed in voluntary or involuntary administrative segregation are not at issue in this case. So I will confine myself to saying in a general way that the rationale for this form of detention is the security of the inmate, the security of the penitentiary and the need to prevent interference in the progress of an investigation.
[3]On October 30, 2000, the respondent was ordered by an officer of the Correctional Service of Canada to rejoin the general population or be issued with an offence report. He refused to comply. The next day, a disciplinary offence report and a notice of charge based on paragraph 40(a) of the Act were given to him. The offence consisted of having disobeyed a lawful order of an officer.
[4]The complaint was heard by the Board on November 23, 2000; the respondent was convicted and sentenced to a five-day disciplinary detention with loss of privileges.
[5]The respondent appealed this decision of the Board. On December 20, 2000, he filed an application for judicial review. This was allowed on August 22, 2002.
[6]The judge hearing the application for judicial review held that the order to leave administrative segregation was a lawful order, as the respondent did not have the right to free choice as to where he resided in the penitentiary. The refusal to comply was therefore an offence under paragraph 40(a) of the Act.
[7]However, the Judge said that in his opinion there had been a violation of the mandatory provisions of section 41 of the Act. This section, which I reproduce, recommends an informal disposition of disciplinary offences:
41. (1) Where a staff member believes on reasonable grounds that an inmate has committed or is committing a disciplinary offence, the staff member shall take all reasonable steps to resolve the matter informally, where possible.
(2) Where an informal resolution is not achieved, the institutional head may, depending on the seriousness of the alleged conduct and any aggravating or mitigating factors, issue a charge of a minor disciplinary offence or a serious disciplinary offence. [Emphasis added.]
[8]Relying on the Schimmens decision, supra, he stated that subsection 41(1) contains a precondition to the exercise of the Board's jurisdiction that must be met before the disciplinary tribunal can proceed with the hearing of the complaint. The Board has an obligation to satisfy itself through its own inquiry that all of the necessary steps were taken to settle the matter informally. Based on this position, he drew the following two conclusions.
[9]First, the Board's duty to investigate before the hearing is a question of law that may be raised at any time by the accused. The fact that in this case the respondent did not raise this point before the Board does not deprive him of his right to do so for the first time on judicial review: see paragraph 38 of the decision.
[10]Second, given the non-compliance with this precondition, the Board Chairperson should have dismissed the offence and declared the respondent not guilty: ibid., at paragraph 37. Hence the appeal by the Crown, which attacks both of these conclusions. The lawfulness of the order that was given is therefore not disputed in the appeal proceeding that is before us. Rather, the debate is over the interpretation of section 41 of the Act and the appropriate penalty or remedy in the case of non-compliance with the mandatory provisions of subsection 41(1).
Analysis of the decision
| (a) Does the Board have a duty to investigate and is this duty a precondition to the lawful exercise of its jurisdiction? |
[11]With respect, I think the judge in Schimmens, supra, which was followed in Verreault and Forrest, supra, as well as in this case, misdirected himself on the nature of the obligation created by subsection 41(1) and who is subject to it. The obligation found in section 41 is an obligation imposed on an officer of the Correctional Services and not the Board. Corresponding to this obligation on the officer is a right of the inmate to demand of the Correctional Services that steps be taken, where possible, to resolve the matter informally, that is, in a dejudicialized way. I will come back later to this aspect of the question. Suffice it for me to say at this point that this obligation to dejudicialize where possible is an important component of the disciplinary system established by the Act and its purposes, as set out in section 38, to "encourage inmates to conduct themselves in a manner that promotes the good order of the penitentiary, through a process that contributes to the inmates' rehabilitation and successful reintegration into the community". In this context, a policy centred on informal resolution rather than excessive judicialization can be readily understood.
[12]Having said this, I am unable to see how and why a properly constituted disciplinary court, with jurisdiction over the matter, the person and the place, can lose its jurisdiction as a result of the failure of a third party, in this case a Correctional Services officer, to comply with an inmate's right. This amounts to saying, for example, that a criminal court loses jurisdiction to hear and determine a charge brought against a person owing to the failure of a police officer to inform that person of his right to counsel. On the contrary, the criminal court, in the exercise of its jurisdiction, is vested with the authority to ensure compliance with the rights of an accused during the process leading to the charge. To my way of thinking, the Board is in the same situation. Far from being deprived of its jurisdiction to hear the complaint that has been laid, the Board has the power to satisfy itself that the inmate's rights under the disciplinary system have been respected and, if need be, to take steps to safeguard them.
[13]In practice, this power of the Board to ensure compliance with the rights of an inmate charged with disciplinary offences means this in case of a breach of the duty under subsection 41(1). When informed of a violation of the inmate's right under subsection 41(1), and satisfied that the duty imposed by that provision has not been respected, the chairperson of the Board may suspend the hearing of the complaint and return the matter to the institutional head so that the latter can evaluate the appropriateness of attempting an informal resolution. I hasten to explain that the role of the Board chairperson is limited to this referral back. It is not his role to interfere in the negotiation of an informal settlement that Parliament has imposed on the Correctional Services, which are responsible therefor. Similarly, it is not the chairperson's job to substitute his opinion for that of the institutional head who, before laying a charge of disciplinary offence, concluded that an informal resolution could not be achieved or was not possible in the circumstances. Should an attempt at an informal resolution prove to be appropriate, the institutional head to whom the matter was returned takes reasonable steps to that end. If this is successful, the institutional head may withdraw the complaint he had filed. If this is unsuccessful or if an informal resolution is not possible in the circumstances, the head so informs the chairperson of the Board who then proceeds with the hearing of the complaint.
[14]The misinterpretation of section 41 made by the Schimmens decision, which makes the inmate's right a precondition to the legal exercise of the Board's jurisdiction, has resulted in some juridical uncertainty. In the first place, if the Board has no jurisdiction to hear the complaint and convict the accused, it has no further jurisdiction to dismiss the charge or declare the accused not guilty, as it was suggested in this case. Furthermore, if it is a precondition to the jurisdiction of the disciplinary court, this lack of jurisdiction may be raised not only at any time in the existing procedures but also in any contemporaneous or subsequent collateral proceedings, thereby undermining the principle of res judicata and putting a question mark over the deeds and actions of those who complied with the decision: see Federation of Canadian Municipalities v. AT & T Canada Corp., [2003] 3 F.C. 379 (C.A.), at paragraph 29; Wilson v. R., [1983] 2 S.C.R. 594, at pages 599, 603-605; R. v. Sarson, [1996] 2 S.C.R. 223, at paragraphs 21 and 23; R. v. Litchfield, [1993] 4 S.C.R. 333, at page 348.
| (b) Basis of the authority of the chairperson of the Board to send the case back to the institutional head if section 41 of the Act has not been complied with |
[15] Section 38 et seq. of the Act establish a general normative framework applicable to the disciplinary system that is described therein. The applicable procedure, offences and disciplinary penalties are set out in some general terms. These provisions are complemented by some more specific provisions that are found in section 24 et seq. of the Corrections and Conditional Release Regulations, SOR/92-620 (the Regulations).
[16]I mentioned earlier the purposes of the disciplinary system, the importance of informal resolution in the pursuit of those purposes and the necessity that the Board ensure compliance with section 41 and the relative right it gives an inmate in the disciplinary process. No statutory provision expressly gives the chairperson of the Board the authority to send the matter back to the institutional head so that an attempt at an informal resolution may be considered. However, apart from the nature and stipulated purposes of the disciplinary system, it may be reasonably inferred from certain provisions, without risk of error, that such authority exists and that it is Parliament's intention that it exist.
[17]Indeed, subsection 30(3) of the Regulations provides that the independent chairperson shall amend a charge of a serious offence where he determines that it should proceed as a charge of a minor offence. In such a case, he shall conduct the hearing or refer the matter to the institutional head for him to conduct a hearing. Under the disciplinary system, minor offences are heard by the institutional head, with two exceptions, one of which is the exception I have just listed and the other has to do with the case where a charge of a minor offence is laid simultaneously with a charge of a serious offence. We can see in this subsection 30(3) Parliament's intention to protect the integrity of the disciplinary system. If the chairperson of the Board has the duty to amend the charge and the authority to return the matter to the institutional head for adjudication, it is not unreasonable to think that the chairperson also has the power, consistent with the purpose of ensuring the integrity of the disciplinary system, to return the matter to the institutional head to consider the possibility of an attempt at an informal resolution, as required by the disciplinary system.
[18]Section 34 of the Regulations lists the factors that the person conducting a disciplinary hearing must consider before imposing a sanction. Pursuant to paragraph 34(f), he or she shall consider "any measures taken by the Service in connection with the offence before the disposition of the disciplinary charge". Here again, this obligation imposed on the chairperson of a Board indicates Parliament's intention to protect the integrity of the disciplinary system with its rights and obligations. If, at the end of the disciplinary process, the chairperson is to consider the efforts made by the Service, for example, to resolve the conflict informally and the inmate's lack of cooperation, I find it hard to explain why he would not have the power, at the very beginning of the process of hearing the complaint to ensure that what he must consider at the end has occurred, that is, the possibility of an informal resolution and, where applicable, to return the matter to the institutional head for that purpose.
[19]Finally, Commissioner's Directive No. 580 on "Discipline of Inmates", dated January 24, 1997, sets out the following policy objective:
POLICY OBJECTIVE
| 1. To provide a fair and equitable disciplinary system which encourages inmates to conduct themselves in a manner that promotes the good order of the institution, fosters a positive correctional environment, and contributes to the rehabilitation of the inmates by allowing them to demonstrate their efforts to become law-abiding citizens. |
Paragraph 2(d) of this Directive, which identifies the principles applicable to this policy, is mandatory: "Inmate discipline shall: . . . promote informal resolution of inmate behavioural problems, whenever possible".
[20]In short, the chairperson of a Board plays an important role in the administration of the disciplinary system. His duties and powers are conditioned by the objectives and principles of this system. Sometimes his powers are explicit, sometimes they are implicit. On other occasions, they flow from his function and his jurisdiction as a disciplinary tribunal. In order to maintain the integrity of the disciplinary system, its ultimate purpose and its objectives, and to ensure enforcement of an inmate's right to have an attempt made at informal resolution, the chairperson who is satisfied that the mandatory provisions of section 41 have not been complied with has, in my opinion, the power to return the matter for this purpose to the institutional head. This is an effective and inexpensive way of guaranteeing compliance with an obligation imposed on the Correctional Services and the correlative right conferred on the inmate.
| (c) Can the Correctional Service's failure to comply with the provisions of section 41 of the Act be raised at any point? |
[21]As we saw earlier, subsection 41(1) gives an inmate a relative right (where possible) to have all reasonable steps taken to resolve the issue in dispute informally. This right must be cited at the earliest opportunity before the chairperson of the Board, failing which, like the other rights of an inmate, it is subject to the waiver principle: see, for example, Clarkson v. The Queen, [1986] 1 S.C.R. 383, at page 394 et seq.; R. v. Hodgson, [1998] 2 S.C.R. 449, at paragraphs 47 and 113.
[22]We have been informed by counsel for the appellant that the new offence report and notice of the charge form sent to the chairperson of a Board indicates whether steps were taken to reach an informal resolution and, if not, the reasons why it was impossible to take such steps in the circumstances. A copy of this report and notice is given to the inmate: section 42 of the Act and section 25 of the Regulations. So informed of his right and the fate reserved to it by Correctional Services, an inmate can in my humble opinion hardly escape the presumption of waiver if he does not submit to the chairperson of the Board his request that the matter be returned to the penitentiary administration: see Clarkson, supra.
[23]In the case at bar, the Judge wrongly concluded that the respondent could raise non-compliance with section 41 for the first time in his application for judicial review.
| (d) Recourse to the grievance procedure |
[24]In view of the conclusion I have come to concerning the powers of the chairperson of the Board, it is not necessary to determine, as was done in Caster and Faucher, supra, whether a grievance proceeding based on paragraph 55 of the Directive is possible. Paragraph 55(b) reads:
REDRESS
| 55. Inmates may use the grievance procedure when they consider that: |
. . .
| b. institutional officials did not adhere to proper procedures prior to a hearing by the independent chairperson. [Emphasis added.] |
However, I would add the following comments.
[25]The parties at the hearing agreed that the grievance procedure not only is not an effective procedure for protecting the right under subsection 41(1), but also contains the seeds of paralysis of the disciplinary system, not to mention the system costs and delays. It must be understood that a grievance, with the rights of appeal, is heard at three levels. At the third level, where there is only a single board member to hear them, there is the added possibility of judicial review in the Federal Court.
[26]Furthermore, in view of the issue in dispute, an informal resolution rather than a judicialization of a conflict, I doubt that where subsection 41(1) is breached Parliament intended to replace the desired dejudicialization of the conflict with a lengthy and costly judicialization of an inmate's right to dejudicialization of the conflict when it is so simple for the Board to return the matter to the penitentiary administration in order to obviate the breach.
[27]Finally, the grievance procedure, for all practical purposes, stays the hearing of the disciplinary offence and delays a resolution of the conflict, to the detriment of the objectives of the disciplinary system. It is unthinkable that the charge would be heard on its merits since such a hearing empties the grievance of its meaning and content. In fact, what does an inmate gain from pursuing his grievance that he is entitled to an attempted informal resolution if, meanwhile, he has been convicted and has served his sentence?
[28] I will end on this issue by noting that paragraph 55(b) of the Directive provides the grievance mechanism when "the proper procedures prior to a hearing" have not been adhered to (my emphasis). Subsection 41(1) of the Act gives the inmate a right and I am far from being persuaded that this right, or the breach that gives rise to it, is a "procedure" within the meaning of paragraph 55(b) of the Directive.
Conclusion
[29]For the reasons given, I would allow the appeal, set aside the order of the Trial Division dated August 22, 2002, and delivering the judgment that it should have delivered, I would dismiss the respondent's application for judicial review.
Décary J.A.: I concur.
Nadon J.A.: I concur.