T-1504-82
Lance David Blanchard, an inmate of Millhaven
Institution (Applicant)
v.
Disciplinary Board of Millhaven Institution and
Douglas L. Hardtman in his capacity as
independent chairperson thereof (Respondents)
Trial Division, Addy J.—Ottawa, March 11 and
15, 1982.
Judicial review — Prerogative writs — Certiorari — Motion
pursuant to s. 18 of Federal Court Act for writ of certiorari or
relief in the nature thereof quashing decisions of Disciplinary
Board chairperson by which applicant convicted of inmate
offences under s. 39 of Penitentiary Service Regulations —
Nature of proceedings — Requirements of procedural fairness
in relation to administrative enquiry wherein examination of
conduct of subject may result in imposition of penalty —
Whether duty to act fairly requires that subject be allowed
legal counsel — Application dismissed — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 18 — Penitentiary Act,
R.S.C. 1970, c. P-6 — Penitentiary Service Regulations,
C.R.C., c. 1251, s. 39.
MOTION.
COUNSEL:
Alison J. MacPhail for applicant.
Leslie Holland for respondents.
SOLICITORS:
Alison J. MacPhail, Kingston, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
ADDY J.: This present motion by the applicant
pursuant to section 18 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, is for a writ of
certiorari or relief in the nature thereof, quashing
the decisions of the respondent, Douglas L. Hardt -
man, made on or about the 10th of February,
1982, convicting the applicant of two counts of
doing any act calculated to prejudice the discipline
or good order of the Institution contrary to para
graph 39(k) of the Penitentiary Service Regula-
tions, C.R.C., c. 1251, proclaimed pursuant to the
Penitentiary Act, R.S.C. 1970, c. P-6, as amended;
one count of damaging government property con
trary to paragraph 39(e) of the Penitentiary Ser
vice Regulations proclaimed pursuant to the Peni
tentiary Act; one count of being indecent,
disrespectful or threatening in his actions, lan
guage or writing toward any other person contrary
to paragraph 39(g) of the Penitentiary Service
Regulations proclaimed pursuant to the Peniten
tiary Act; one count of having "contraband in his
possession" contrary to paragraph 39(i) of the
Penitentiary Service Regulations proclaimed pur
suant to the Penitentiary Act; one count of assault
contrary to paragraph 39(b) of the Penitentiary
Service Regulations proclaimed pursuant to the
Penitentiary Act; and quashing the decisions of the
respondent, Douglas L. Hardtman, made on or
about the 17th of February, 1982, convicting the
applicant of two counts of doing any act calculated
to prejudice the discipline or good order of the
Institution contrary to paragraph 39(k) of the
Penitentiary Service Regulations proclaimed pur
suant to the Penitentiary Act.
REASONS
A hearing conducted by a penitentiary discipli
nary board for an alleged infraction of the Peni
tentiary Service Regulations is an administrative
proceeding and is neither judicial nor quasi-judi
cial in character.
Except to the extent that there are statutory
provisions or regulations having the force of law to
the contrary, there is no requirement to conform to
any particular procedure or to abide by the rules of
evidence generally applicable to judicial or quasi-
judicial tribunals or adversary proceedings.
There is, however, an overall duty to act fairly
in administrative matters and, when applied to an
administrative hearing or enquiry, the duty to act
fairly translates into one of ensuring that the
enquiry is carried out in a fair manner and with
due regard to natural justice. This duty to act
fairly where the conduct of a person who might be
subject to some penalty is being examined,
requires that the person be aware of what the
allegations are, of the evidence and the nature of
the evidence against him and be afforded a reason
able opportunity to respond to the evidence and to
give his version of the matter. In order to achieve
this, wherever evidence is being given orally, the
prisoner should be present and also be afforded the
opportunity of cross-examining or questioning any
witness, unless there are exceptional circumstances
which would render such a hearing practically
impossible or very difficult to conduct, such as
deliberately obstructive conduct on the part of the
party concerned.
There is no general right to have the proceedings
transcribed verbatim but, where such a transcrip
tion exists, as in the present case, it may be used to
enable the reviewing court to come to its conclu
sions on the merits of the application.
Although the hearing is not to be conducted as
an adversary proceeding but as an inquisitorial
one, there is no duty on the person responsible for
conducting the hearing to explore every conceiv
able defence or to suggest possible defences to the
prisoner, although there is a duty to conduct a full
and fair enquiry which, of course, might lead to
the obligation of asking questions of the prisoner
or of any witness, the answers to which might
prove exculpatory in so far as the prisoner is
concerned. He must, in other words, examine both
sides of the question.
There is no right to counsel; whether counsel
representing the prisoner is to be allowed to be
present is a matter for the discretion of the chair
man conducting the enquiry. Occasions might
possibly arise where matters are so complicated
from a legal standpoint that the duty to act fairly
might require the presence of counsel, but I cannot
at the moment envisage such a situation, especially
where the person conducting the enquiry is a legal
ly qualified barrister and solicitor, as in the present
case. Furthermore, the questions arising in these
disciplinary proceedings are, generally, of a factual
nature.
The prisoner must be mentally and physically
capable of understanding the proceedings and the
nature and details of the accusations, of taking
cognizance of any oral or written evidence present
ed, of questioning witnesses and of presenting his
version of the matter. Where there is any doubt as
to the prisoner's capability to so take part in the
proceedings, then, in order to act fairly, the chair
man must first satisfy himself on that issue before
proceeding with the hearing.
After having examined the affidavits and exhib
its produced on this present application, including
the transcript of the oral evidence (albeit a very
incomplete one), hearing the arguments of counsel
and considering the jurisprudence referred to, I
cannot, in the light of the above principles, con
clude that the chairman acted unfairly in any way.
He carefully took into consideration the prison
er's capacity to defend himself and concluded that
he was so capable. There is no evidence that the
prisoner was mentally incapable of taking part. On
the contrary, he addressed some very pertinent
questions to the witnesses and made statements
which were quite relevant to the issues.
The chairman considered the request for
representation by counsel and exercised his discre
tion to refuse counsel in light of the most recent
jurisprudence on that subject. Unless the exercise
of any such discretion is patently unfair, this Court
should not interfere.
By reason of the fact that the hearing is an
inquisitorial proceeding and not an adversary pro
ceeding and that hearsay and written hearsay evi
dence are admissible, it is not up to this Court to
review the evidence as a court might do in the case
of an appeal from a judicial tribunal or of a review
of the decision of a quasi-judicial tribunal, but
merely to consider whether there has, in fact, been
a breach of the general duty to act fairly. There
might, of course, be cases where a patent disregard
of the evidence would indicate bad faith on the
part of the chairman or a breach of his general
duty to act fairly. Such is far from being the case
here.
ORDER
Application dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.