| An
inmate was frisk searched by officer B when he returned from a contact
visit. B felt an object in the inmate's right sleeve and ordered him to
submit to a strip search. The search was conducted and nothing was found
on the inmate's person. A few minutes later, officer L found a package
containing narcotics in the vicinity of the room where the search had
been conducted. As a result, the inmate was charged with a disciplinary
offence for being in possession of narcotics contrary to paragraph 40(i)
of the CCRA. Despite the fact that at the hearing the officers testified
that they had found no narcotics on the inmate and had not seen him throwing
anything away, the disciplinary court nevertheless convicted the inmate.
The chairperson's reasons indicate that an inference of possession of
the package later found was made solely on the basis that initially officer
B felt something in the sleeve of the inmate. The inmate applied for judicial
review challenging the conviction. At issue before the Federal Court was
the question of the proper standards of proof or evidence set out by the
Act. The inmate argued that the conclusion reached by the chairperson
did not meet the standards set out in subsection 43(3) of the CCRA. Despite
the fact that the evidence was consistent with guilt, it was equally probable
that another inmate could have left the object. As a result, there was
reasonable doubt as to his guilt. The CSC argued that although there was
no direct evidence of possession on the part of the inmate, there was
circumstantial evidence of possession. In addition, since the inmate had
exclusive opportunity to commit the offence, his guilt was the only logical
explanation. |
| Lemieux
J. allowed the application and set aside the decision of the disciplinary
court. Lemieux J. held that it is apparent from subsection 43(3) that
the burden of proof that applies at the disciplinary hearings provided
for in the Act is the burden of proof in criminal matters. Moreover, not
only must the inmate be guilty beyond a reasonable doubt, but the burden
is on the Crown to prove guilt. In this case, the CSC acknowledged that
there was no direct evidence of possession on the part of the applicant.
They argued that there was circumstantial evidence of such possession.
It is not denied that the inmate had the opportunity to commit the act
with which he was charged. However, the evidence submitted to prove his
guilt was deficient. The record indicated that there was no evidence that
the narcotics were on the inmate's person, nor was there any direct evidence
that he was the person who had got rid of the contraband found near the
door leading out of the visiting area. All that has been established in
this case is the possibility that it belonged to him and opportunity to
have committed the act. However, that opportunity was not exclusive opportunity
as an officer testified that the inmate facing discipline was not the
only inmate in the contact visit room that afternoon. |
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