| The
applicant B was an inmate who, concerned that he was in danger of being
physically attacked by other inmates, requested to be placed in protective
custody. While in protective custody B declined to reveal the names of
the inmates he feared, and as result B was to be released back into general
population. At that point B stated that if he were put into general population
he would kill the next officer he saw. Those words resulted in a conviction
of the disciplinary offence of behaving towards another person, by his
language, in a threatening manner pursuant to section 39(g) of the Penitentiary
Service Regulations. B attempted without success to have the disciplinary
court hearing his case entertain a preliminary application to stay the
charge against him. The disciplinary court refused to entertain such an
application. In challenging the decision of the disciplinary court by
way of judicial review, the inmate argued before the Federal Court that
section 38 of the Penitentiary Service Regulations afforded the Independent
Chairperson with the discretion to make a decision concerning a stay of
the charge, and that by failing to exercise that discretion the chairperson
acted in excess of or without jurisdiction. In regards to the substance
of the disciplinary charge, B argued that the Chairperson misdirected
himself in law by finding that mens rea was not a necessary element of
the charge against him. B maintained that at no time did he possess the
intention of carrying out the threat. In fact, B submitted that it was
simply a threat uttered for the secondary purpose of remaining in protective
custody. |
| Rouleau
J. dismissed the application in part, and in part invited submissions
from both counsel on the point of whether B had been charged with the
wrong offence under the various subsections of section
39 of the Regulations. Rouleau J. held that none of the legislative
provisions bestowed any authority on the Chairperson to stay the charges
against the inmate. The decision as to whether an inmate should be charged
with a disciplinary offence and whether circumstances warrant dropping
or dismissing those charges is clearly within the ambit of jurisdiction
of the head of the institution. The Independent Chairperson of the disciplinary
court is clearly charged with only three functions pursuant to section
38 of the Regulations: 1) to preside over a disciplinary court;
2) to determine the innocence or guilt of an inmate based on the evidence
presented at the hearing; and 3) to impose an appropriate punishment for
the offence. Accordingly, Rouleau J. was satisfied therefore that the
Chairperson did not act in excess of or without jurisdiction when he failed
to entertain the inmate's preliminary application to stay the charge against
him, and dismissed this part of B's application for judicial review. In
terms of the substantive offence, Rouleau J. held that the intention to
carry out the threat did not constitute an element of the offence under
section
39(g). However, B may have not been guilty of an offence pursuant
to section
39(g) which required that the recipient of the threat be witness
to such behaviour. Rouleau J. went on to contrast section
39(g) with section
39(b), which created the offence of an inmate threatening to
assault another person, even though the threatened person did not hear
the threat or be in the presence of the inmate when the threat was made.
As such, Rouleau J. suggested that B may have been charged with the wrong
offence, and found that what B did in fact do was to threaten to assault
another person as contemplated by section 39(b). Rouleau J. then felt
it appropriate to invite the parties to make submissions to the Court
within a specified time period on the point of whether B had been charged
with the proper offence pursuant to Regulation 39. |
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