| The Federal Court dismissed the application. Citing Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.), Denault J. noted that whether the representation by counsel could be held to have been lawfully refused in a given case would depend on the circumstances of the particular case, its nature, its gravity, its complexity, the capacity of the inmate himself to understand the case and present his defence. This list is not exhaustive. In applying the Howard criteria to the facts of this case, Denault J. found the following. In terms of the nature and gravity of the offence, the Court pointed out that the fact that the offence was classified as intermediary does not automatically preclude his right to counsel. It is the actual gravity of the offence that must be considered, not the name attached to it. In considering the gravity of the offence, the inmate argued that the court had a duty to take into account the possible repercussions that a guilty verdict by a disciplinary court may have, namely: 1) the fact that the conviction may influence the decision of the NPB to grant the inmate parole, and 2) the fact that such a decision may also cause the Earned Remission Committee to deny the inmate his earned remission. In contrast, the CSC argued that the effect that a conviction by the disciplinary board may have on subsequent proceedings should not be considered by the court in its review of the gravity of the offence. Denault J. held that it would be naïve to suggest that the disciplinary court, in weighing the seriousness of the offence committed, should ignore the possible consequences of a disciplinary conviction in subsequent proceedings - proceedings that will in turn deal a severe blow to the already shaky structure of an inmate's "liberty." Yet, a consideration of the gravity of the offence is only one of the aspects for analysis in determining the right to counsel. Since in this case the gravity of the offence is established by the fact that a guilty verdict by the disciplinary court could greatly effect subsequent earned remission and parole considerations, the other criteria set out in Howard must be very strictly applied. In terms of the complexity of the offence and the capacity of the inmate to present his defence himself, Denault J. held that the transcript revealed the inmate to be a very articulate individual. Further, it was clear that the inmate was well prepared to face the charges against him. It was he who first raised the question of the effect that a guilty verdict could have on his chances of obtaining earned remission, and on the possibility of his being granted parole. The inmate also drew to the attention of the presiding officer the existence of certain relevant case law. The transcript indicated that the inmate had appeared before the disciplinary court in the past. Denault J. held that he could therefore hardly argue that he was not familiar with the procedure followed. Also, the inmate had about four months in which to obtain information and prepare his case, which was more than reasonable. These circumstances led to the Court's conclusion that despite the severe consequences that could result from the inmate's conviction, the Court could not in light of the other criteria stated in Howard, conclude that the inmate was unable to present his case adequately without counsel. In obiter, Denault J. went on to say that although the CSC placed great emphasis on the fact that this case raised no complex questions of law and in light of the fact that the inmate here was fully competent to discuss questions of fact which were at issue, it nevertheless remains that the fact that a case raises only questions of fact does not always mean that counsel is not necessary. |
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