| B
applied for judicial review of a disciplinary court decision to convict
him for having consumed an intoxicant pursuant to section 40(k) of the
CCRA. B first appeared before the Independent Chairperson on June 1, 1999,
when he sought an adjournment as he had no lawyer to represent him. The
matter was adjourned to June 15, 1999, but that hearing was adjourned
again because B's counsel was still not present. The hearing was adjourned
peremptorily to July 13, 1999, at which date B appeared, still without
counsel, but asked to examine the person responsible for collecting urinalysis
samples, C. Since that person was not present, the meeting was adjourned
to August 24, 1999. At that fourth and final hearing both B and C gave
evidence. The urinalysis program co-ordinator, N, also gave evidence.
Before the Federal Court, B claimed that at the July 13, 1999 hearing
N read the charge into the record and B subsequently requested C who was
not present. On August 24, 1999, B objected to the urinalysis collector
giving evidence, he cross-examined him, and then N gave further evidence.
B argued that the CSC improperly split its case during the hearing.
|
|
Dubé J. dismissed the application. The Federal Court held that the standard of review in the context of decisions made by the CSC officials is, on the balance of probabilities, whether the decision was patently unreasonable. Dubé J. continued, stating that the jurisprudence has established general principles regarding the nature of the disciplinary proceedings conducted by an Independent Chairperson of a disciplinary court. These hearings are neither judicial nor quasi-judicial in character. They are merely administrative proceedings. There is no requirement to conform to any particular procedure or to abide by the rules of evidence. However, there is an overall duty to act fairly in the sense that the prisoner must be aware of the allegations and the evidence against him and be afforded a reasonable opportunity to respond. These hearings are not conducted in an adversary manner but in an inquisitorial one, in the sense that the Chairperson must examine both sides of the question. It is not for a court to review the evidence as a court might do in a case of a judicial tribunal or a review of a decision of a quasi-judicial tribunal, but the court must limit itself to consider whether there has been a breach of the general duty to act fairly. Finally, the judicial discretion in relation to disciplinary matters must be exercised sparingly and a remedy ought to be granted only in cases of serious injustice. The single argument advanced by B at the hearing was based on a general rule of practice governing civil and criminal trials that a lawyer may not split his action in an attempt to deprive his adversary of a right to reply. Again, the proceeding under attack is merely administrative and there is no requirement for the Chairperson to conform to any particular procedure provided he or she acted fairly. In the instant case, B was fully aware of the allegations against him and was afforded a reasonable opportunity to respond and to give his own version of the matter. He was not denied the opportunity to cross-examine N.
|
TOP