Bailey v. Mission Institution

(1986), 17 W.C.B. 155, 6 F.T.R. 69, 25 Admin.L.R. 219, 1986] F.C.J. No.505 (F.C.T.D.)

    The applicant B was charged with having contraband in his possession, namely a ball point pen tube with marijuana residue, pursuant to section 39(i) of the Penitentiary Service Regulations. At the hearing, B requested counsel but was denied by the Independent Chairperson. A correctional officer's affidavit to the Federal Court indicated that the memorandum showing the results on the testing of the substance in question was in the officer's possession during the disciplinary hearing, was referred to by the officer during the hearing, but was never placed before the inmate during the course of the proceedings. The Independent Chairperson found B guilty and sentenced him to 15 days punitive dissociation, loss of all privileges except smoking, correspondence and visiting, suspended 60 days upon good behaviour and a fine of $20.00. B applied for judicial review and put two central issues before the Federal Court: 1) Did the Independent Chairperson err in refusing B's request for counsel? 2) Was there a total lack of, or insufficient level of, evidence upon which B was found guilty?
    Tietelbaum J. allowed the application. The Federal Court was satisfied that considering all of the circumstances in this case relating to the type of offence and the possible punishment, with special regard to the possible punishment of dissociation and failure to earn remission, the offence is one that the failure to allow B the right to counsel was denial of the principles of fundamental justice accorded under section 7 of the Charter. As to the question of the standard of evidence, Tietelbaum J. held that B was denied the right to defend himself on the evidence that was used to obtain a guilty decision. Tietelbaum J. held that if the memorandum showing the results on the testing is not shown to the person charged with an offence, then that person cannot make a defence to that evidence. There was a denial of fundamental justice in this case.
TOP