Durie v. Canada
(Attorney General)

(2001), 201 F.T.R. 8, 2001 FCT 22, [2001] F.C.J. No.169 (F.C.T.D.)

    D was required to provide a urine sample pursuant to section 54(b) of the CCRA. The notice was given to D but he was unable to provide the sample within the two-hour time requirement and was actually given additional time. D was convicted by a disciplinary court pursuant to section 40(l) of the CCRA for failing or refusing to provide a urine sample upon demand. D applied for judicial review of that conviction. While D submitted to the disciplinary court that a medical condition provided a reasonable justifiable excuse, the independent chairperson stated that some medical evidence - none of which was provided by the inmate - was required. The Federal Court stipulated that the issues were: the appropriate standard of review; the shifting of the onus of proof; and the standard of proof applicable in inmate disciplinary proceedings.
    McKeown J. allowed the application, quashed the chairperson's decision and substituted it with a finding of not guilty. The Federal Court stated that it "accepted the standard of review of this decision to be patent unreasonableness since there is reviewable error no matter what standard of review is applied." McKeown J. held that the onus of proof is on the Respondent (prosecutor) in inmate disciplinary hearings. The onus shifts to the Applicant (accused) when the Respondent has shown that the offence has taken place and the applicant is offering lawful excuse. The chairperson in this case erred in requiring medical evidence and/or documentation. An inmate is entitled to offer evidence on lawful excuse and the chairperson should weigh the evidence and determine whether it constitutes lawful excuse. An inmate is not required to produce medical evidence or documentary evidence, but in many cases it would be in the inmate's interest to do so. There is no standard type of evidence that is required by law.
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