| B
was approaching the last few minutes of a 72-hour conjugal visit in one
of the trailers reserved for that purpose, when he suffered a sudden fit
or seizure. He was found lying on his back, seemingly choking and experiencing
spasms of his limbs. Correctional officers were called in and B was brought
to his feet and then escorted to the infirmary where the duty nurse examined
him. The latter noted B's aggressiveness, his struggle with the guards,
his slurred speech, the redness of his eyes, his hesitant steps, all of
which she found symptomatic of the effects of an intoxicant upon the body.
The nurse, on the medical history of the applicant, could find no record
of illness, no history of epileptic seizures, no prescribing of any medication
that might create an abnormal state. The duty nurse, without conducting
any blood or urine tests, then concluded that B's abnormal state could
not have been caused by anything other than an intoxicant. B was then
charged and convicted of taking an intoxicant into the body contrary to
section 40(k) of the CCRA. B sought judicial review and the Federal Court
dealt with the issue of the appropriate standard of proof required in
disciplinary hearings in order to convict. |
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Joyal J. dismissed the application. B's counsel argued that the standard imposed by the Act - that the intoxicant in the body of the applicant must be found beyond a reasonable doubt - had not been met as the guilty verdict was based substantially on the duty nurse's evidence. According to B's counsel, it would have been open to take blood and urine tests, the results of which would have definitively settled the matter. B's counsel maintained that it was an error not to do so, and that the nurse's evidence therefore could only carry no or little weight with the tribunal. Joyal J. held that despite the acknowledgement that the nurse's evidence was merely circumstantial, it nevertheless was be sufficient to meet the standard of proof set out in subsection 43(3) of the CCRA. Curial respect for an administrative tribunal's disciplinary decisions in a correctional environment is as high as for any other tribunal. Joyal J. wrote that the rule of evidence in criminal matters does not apply to it. The tribunal may admit any evidence that it considers reasonable or trustworthy. It did not really matter whether on the face of the same evidence someone else might have reached a different conclusion. It was only necessary to be seized of sufficient evidence on which the necessary and ultimate verdict may be made. The evidence before the tribunal in this case was indeed circumstantial, but it was nevertheless evidence. In particular, the obligation of the tribunal chairperson, pursuant to section 30 of the Act, is "to decide if the evidence produced…substantiates beyond a reasonable doubt each charge against the inmate." In Joyal J.'s view, if there was evidence, and if in light of that evidence it was found that an offence was committed beyond a reasonable doubt, it should very much doubt if a court, on a judicial review, would be justified in intervening.
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