| In
allowing the application in part, Tietelbaum J. affirmed the disciplinary
court convictions, but quashed the sentences. Tietelbaum dealt with the
issues laid out by A's counsel in turn. Although A argued that the independent
chairperson had erred in refusing to allow him to be represented by counsel
at the hearing for the first charge, Tietelbaum J. dismissed this part
of the application. Although the chairperson failed to give any consideration
to the test to be applied before refusing the request, Tietelbaum J. was
nevertheless satisfied that he was right in his refusal. The charge was
not of a serious nature. There was no loss of earned remission. The inmate's
request for counsel was merely an afterthought as it was made well into
the hearing. If A wanted to be represented by counsel he should have asked
for an adjournment of the hearing in order to retain counsel or he should
have made his request for counsel at the commencement of the hearing.
Moreover, Tietelbaum J. was satisfied that the inmate was able to defend
himself. In terms of section
11(d) of the Charter, A submitted that because representatives
of the Institution were present at both hearings, and were permitted to
ask questions, the hearing was not impartial nor did the Independent Chairperson
act independently. Tietelbaum J. did not share this view and concluded
that there was absolutely no indication from a reading of the transcript
that the Independent Chairperson was in any way influenced by the actions
or questions of the representatives of the Institution in arriving at
the decision to convict. In regards to any question of bias towards A's
counsel, Tietelbaum J. was satisfied that the Chairperson failed to control
his feelings and may have acted improperly when he made certain remarks
concerning A's counsel. As well, Tietelbaum J. was satisfied that he acted
improperly when he was laughing at A or that he was whistling. Nevertheless,
Tietlebaum J. noted that it was not until after A was found guilty that
A's counsel's name was mentioned and the Court was satisfied that could
not be said that there was a bias on the part of the Chairperson in convicting
A. While A argued that the Independent Chairperson erred in refusing the
inmate a request to call a specific witness, Tietelbaum J. dismissed this
part of the application. It was held that in cases where a witness or
witnesses are readily available to be questioned and a request to have
the witness testify is made by an inmate, the request should normally
be granted if it is determined that what the witness would testify to
could or would be a significant factor in determining the guilt or innocence
of the inmate. In this case, Tietelbaum J. stated that even if the witness
were to have been called, his evidence would not have affected the outcome
of the hearing. Tietelbaum J. was satisfied that the failure of the Independent
Chairperson to give the inmate the opportunity to make submissions as
to his punishment or the failure to inform the inmate of the consultation
in his absence did not indicate that the hearing that found the inmate
guilty of the charges to be unfair. The hearing can and should be considered
as having two parts. The first part of the hearing is to determine the
guilt or innocence of the inmate, the second deals only with the issue
of punishment. Tietelbaum noted that paragraph 33 of the relevant CD states
that "The inmate shall be given the opportunity to make submissions as
to punishment before the punishment is imposed." Subsection 38(4)(b) of
the Regulations gave the same entitlement. Counsel for the respondent
CSC agreed with the submissions of the inmate applicant that the Commissioner's
Directives have been held not to be law but a breach of these Directives
is indicative of a breach of the duty to act fairly. Accordingly, Tietelbaum
J. held that the failure of the Chairperson to give A an opportunity to
make submissions as to his punishment before it was imposed and the failure
to inform on the consultation in his absence was a breach of duty on the
part of the Chairperson to act fairly. Tietelbaum therefore upheld the
convictions but issued an order quashing the punishment. |
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