38. Purpose of disciplinary system - The purpose of the disciplinary system established by sections 40 to 44 and the regulations is to encourage inmates to conduct themselves in a manner that promotes the good order of the penitentiary, through a process that contributes to the inmates' rehabilitation and successful reintegration into the community.

39. System exclusive - Inmates shall not be disciplined otherwise than in accordance with sections 40 to 44 and the regulations.

40. Disciplinary offences - An inmate commits a disciplinary offence who

disobeys a justifiable order of a staff member;

is, without authorization, in an area prohibited to inmates;

wilfully or recklessly damages or destroys property that is not the inmate's;

commits theft;

is in possession of stolen property;

is disrespectful or abusive toward a staff member in a manner that could undermine a staff member's authority;

is disrespectful or abusive toward any person in a manner that is likely to provoke a person to be violent;

fights with, assaults or threatens to assault another person;

is in possession of, or deals in, contraband;

without prior authorization, is in possession of, or deals in, an item that is not authorized by a Commissioner's Directive or by a written order of the institutional head;

takes an intoxicant into the inmate's body;

fails or refuses to provide a urine sample when demanded pursuant to section 54 or 55;

creates or participates in

a disturbance, or

any other activity

that is likely to jeopardize the security of the penitentiary;

does anything for the purpose of escaping or assisting another inmate to escape;

offers, gives or accepts a bribe or reward;

without reasonable excuse, refuses to work or leaves work;

engages in gambling;

willfully disobeys a written rule governing the conduct of inmates; or

attempts to do, or assists another person to do, anything referred to in paragraphs (a) to (r)

41. (1) Informal resolution - Where a staff member believes on reasonable grounds that an inmate has committed or is committing a disciplinary offence, the staff member shall take all reasonable steps to resolve the matter informally, where possible.

      (2) Charge may be issued - Where an informal resolution is not achieved, the institutional head may, depending on the seriousness of the alleged conduct and any aggravating or mitigating factors, issue a charge of a minor disciplinary offence or a serious disciplinary offence.

42. Notice of charge - An inmate charged with a disciplinary offence shall be given a written notice of the charge in accordance with the regulations, and the notice must state whether the charge is minor or serious.

43. (1) Hearing - A charge of a disciplinary offence shall be dealt with in accordance with the prescribed procedure, including a hearing conducted in the prescribed manner.

      (2) Presence of inmate - A hearing mentioned in subsection (1) shall be conducted with the inmate present unless

the inmate is voluntarily absent;

the person conducting the hearing believes on reasonable grounds that the inmate's presence would jeopardize the safety of any person present at the hearing; or

the inmate seriously disrupts the hearing.

      (3) Decision - The person conducting the hearing shall not find the inmate guilty unless satisfied beyond a reasonable doubt, based on the evidence presented at the hearing, that the inmate committed the disciplinary offence in question.

44. (1) Disciplinary sanctions - An inmate who is found guilty of a disciplinary offence is liable, in accordance with the regulations made under paragraphs 96(i) and (j), to one or more of the following:

a warning or reprimand;

a loss of privileges;

an order to make restitution;

a fine;

performance of extra duties; and

in the case of a serious disciplinary offence, segregation from other inmates for a maximum of thirty days.

      (2) Collection of fine or restitution - A fine or restitution imposed pursuant to subsection (1) may be collected in the prescribed manner.

Corresponding Regulations: Sections 24- 42 Inmate Discipline

    - Right to make representations (present proof or arguments) and to have them taken into consideration

Martineau and Butters v. Matsqui Institution Inmate Disciplinary Board - (1977), 33 C.C.C. (2d) 366, 74 D.L.R. (3d) 1, [1978] 1 S.C.R. 118, 14 N.R. 285 (S.C.C.)

- An application for judicial review of a decision of the Inmate Disciplinary Board to convict and sentence several inmates for serious and flagrant disciplinary offences was made to the Federal Court of Appeal pursuant to section 28 of the Federal Court Act. Section 28 gives the Federal Court of Appeal exclusive jurisdiction to review decisions of federal tribunals "other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis." The Federal Court of Appeal dismissed the application on the basis that it had no jurisdiction to review the decision of the Board, the decision not being one that must be made on a judicial or quasi-judicial basis but merely fairly and justly. On appeal to the Supreme Court of Canada, the narrow issue dealt with went to the heart of the jurisdiction conferred upon the Federal Court of Appeal to review decisions or orders of administrative tribunals. In a 5 to 4 split, the Supreme Court dismissed the appeal. Pigeon J., along with three other members, asserted the Court found it difficult to agree with the view that the detailed provisions guiding prison discipline set out in a Commission of Penitentiaries Directive enacted pursuant to the Penitentiary Act and penitentiary Service Regulations merely requires that a disciplinary decision be made fairly and justly. However, while there is no doubt that the Regulations are law, the Directives are not to be considered "law" within the meaning of section 28. The fact that the decisions of the Board may result in the loss of an inmate's statutory remission does not change the nature of the decision. The Board's decision was not one required by "law" to be made on a judicial or quasi-judicial basis and, thus, the Federal Court of Appeal had no jurisdiction to review the decision.

Martineau v. Matsqui Institution Inmate Disciplinary Board (No.2) - (1979), 13 C.R. (3d) 1, 50 C.C.C. (2d) 353, 106 D.L.R. (3d) 385, [1980] 1 S.C.R. 602, 30 N.R. 119 (S.C.C.)

- Speaking for a majority of the Supreme Court, Pigeon J. held that, when viewing the situation of a prison inmate in respect of disciplinary offence proceedings, the requirements of judicial procedure are not to be brought in and, consequently, these are not decisions which may be reviewed by the Federal Court of Appeal under s28 of the Federal Court Act - a remedy which is in the nature of a right of appeal. However, this does not mean that the duty of fairness may not be enforced by the Trial Division through the exercise of the discretionary remedies mentioned in s18 of the Federal Court Act. This is subject to the exercise of judicial discretion and in this respect it will be essential that the requirements of prison discipline be borne in mind. It is specially important that the remedy be granted only in cases of serious injustice and that proper care be taken to prevent such proceedings from being used to delay deserved punishment so long that it is made ineffective, if not altogether avoided. Dickson J., in a concurring decision, wrote that an inmate disciplinary board is not a court but rather a tribunal that has to decide rights after hearing evidence. Even though the board is not obliged, in discharging what is essentially an administrative task, to conduct a judicial proceeding observing the procedural and evidential rules of a court of law, it is nonetheless subject to a duty of fairness, and a person aggrieved through breach of that duty is entitled to seek relief from the Federal Court, Trial Division, on an application for certiorari. It should be emphasized that it is not every breach of prison rules of procedure that will bring intervention by the courts. The very nature of a prison institution requires officers to make "on the spot" disciplinary decisions, and the power of judicial review must be exercised with restraint. Interference will not be justified in the case of trivial or merely technical incidents. The question is not whether there has been a breach of the prison rules, but whether there has been a breach of the duty to act fairly in all the circumstances.

Laking v. Canada - (1995), 136 Sask.R. 24, [1995] S.J. No.571 (Sask.Q.B.), 1995 CanLII 6018 (SK Q.B.)

- While the provincial superior courts have broad powers on an application for habeas corpus to review the decision of prison officials who have ordered the involuntary transfer of an inmate to a higher security level, these courts nevertheless cannot review the decision of an independent chairperson even though that decision is a significant part of the reason for the transfer decision. In this case, although the provincial superior court was of the opinion that the disciplinary court conviction underlying the impugned transfer decision was unlawfully entered against the inmate because the hearing lacked procedural fairness, the provincial superior court held that it had no jurisdiction to review the validity of the disciplinary court decision. The Trial Division of the Federal Court is the court that has jurisdiction to review and possibly quash the decision of the Independent Chairperson.

Creed v. Canada (Solicitor General) - [1996] F.C.J. No.1207 (F.C.T.D.)

- This was an application for a costs award made in relation to an earlier finding, on consent by both parties, that the conviction of the inmate for a disciplinary offence be quashed. The Federal Court dismissed this application, holding that this was not a case for the award of costs under Rule 1618. The Court stipulated that here the truth of the averment made by the officer in his affidavit concerning a conversation which he may or may not have had with the inmate has not been tested under cross-examination, has not been argued on the merits, and has not necessitated a hearing for judicial review by reason of the respondent resisting the application through their agreement that the precipitating disciplinary conviction be quashed.

Morrisroe v. Canada (Minister of Justice) - (1996), 119 F.T.R. 276, [1996] F.C.J. No.1178 (F.C.T.D.)

- An inmate brought a motion for an order to allow his non-lawyer daughter to represent him in Federal Court. The court denied the motion on the grounds that the Federal Court Rules did not allow for "lay representation." Rule 300 provided that an individual may either represent themselves or be represented by a solicitor. This, however, did not mean that the inmate's daughter could not assist her father in preparing the documentary evidence and written arguments which, in a judicial review proceeding, are filed ahead of any oral argument thereon.

Trunzo v. Stony Mountain Penitentiary Disciplinary Court - (1996), 124 F.T.R.101, [1996] F.C.J. No.1500 (F.C.T.D.)

- After dismissing this application for judicial review on the part of an inmate and awarding costs of $300 against the inmate, the Federal Court stressed that while the inmate had the right to seek judicial review in this case, invoking the mechanism of the judicial system for such a trivial matter was close to absurd. There was significant public expenditure involved in a judicial review application and it was quite apparent this inmate had no regard for the burden he had placed on the legal system and the Canadian taxpayer. The Court had an obligation in these circumstances to demonstrate to the inmate and to signal to potential litigants and counsel that invoking the mechanism of the judicial system for frivolous cases will not be costless. While the award of $300 in this case was relatively low, litigants and counsel should be forewarned that increased awards of costs, including costs against counsel personally, could be made in similar cases in the future.

Faulkner v. Stony Mountain Institution - (1986), 6 F.T.R. 195, [1986] F.C.J. No.439 (F.C.T.D.)

- An inmate applied for a writ of certiorari quashing the decision of a disciplinary court almost two and a half years after the decision was made. The Federal Court dismissed the application. The Court found that the inmate had not satisfactorily explained the long delay in making his application, and the law was quite clear that an unreasonable delay in applying for relief by way of certiorari may be a bar to granting it. In the Court's view, the unexplained delay of 20 months in making the application was a bar to the granting of the relief sought in this case.

Forster v. Canada (Correctional Service) - (1999), 247 N.R. 300, [1999] F.C.J. No.1462 (F.C.A.), 1999 CanLII 8762 (F.C.A.)

- The Federal Court Trial Division struck the inmate's application for judicial review of a disciplinary court conviction on the basis that it was commenced outside the 30 day time limit. In dismissing the appeal, the Court asserted that the inmate had received the decision of the disciplinary hearing and most of the tapes of that hearing. The motions judge exercised his discretion properly when he found that waiting for the full tape-recorded transcript did not constitute a sufficiently good reason for the delay. Furthermore, as to whether confiscating the inmate's computer constituted a reasonable excuse for the delay, it was open to the motions judge to find as he did because the inmate did not file his application until some three months after the day he got his computer back.

    - Granting of interlocutory injunction (stay) of disciplinary court decision pending       judicial review

Crawford v. William Head Penitentiary - (1992), 56 F.T.R. 32, [1992] 3 F.C. 539 (F.C.T.D.)

- While it was not set out as a ground for relief in relation to the disciplinary court conviction in this decision, the Federal Court indicated that there appeared to be a perception that simply initiating proceedings in Federal Court should result in suspension of other proceedings, pending a decision of the Federal Court. While each board or authority must assess its own basis for proceeding when the basis of those proceedings are questioned by application to the Federal Court, it was noted that the Federal Court itself does not readily intervene to grant an application to stay other proceedings, though it has jurisdiction to do so.

[ CROSS REFERENCE - PLACEMENT AND TRANSFER OF INMATES standard of review section ]

Boudreau v. Canada (Attorney General) - [2000] F.C.J. No.2016 (F.C.T.D.), 2000 CanLII 16709 (F.C.)

- An inmate applied for judicial review of a disciplinary court decision to convict him pursuant to section 40(k) of the CCRA. 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.

Durie v. Canada (Attorney General) - (2001), 201 F.T.R. 8, 2001 FCT 22, [2001] F.C.J. No.169 (F.C.T.D.)

- An inmate applied for judicial review of a disciplinary court decision to convict him pursuant to section 40(l) of the CCRA for failing or refusing to provide a urine sample upon demand. 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."

Landry v. Legal Services Society - (1986), 28 C.C.C. (3d) 138, 4 W.W.R. 645, [1986] B.C.J. No.336 (B.C.C.A.)

- An inmate charged with a disciplinary offence applied for an order requiring the Legal Services Society to provide him with legal aid. The application was not successful and an appeal to the British Columbia Court of Appeal was dismissed. Under section 3(2) of the Legal Services Society Act, R.S.B.C. 1979, c. 227, an inmate would have been entitled to have legal services provided if he were a "defendant in criminal proceedings that could lead to imprisonment," could be "imprisoned or confined through civil proceedings," or if he had a legal problem that threatened "his livelihood." The Court held that proceedings before the prison disciplinary court are neither civil nor criminal in nature. Moreover, the fact that the inmate may have been confined and unable to work at a job (that he was paid a small wage for) within the prison, if found guilty of a disciplinary offence, did not constitute a threat to his "livelihood" as within the meaning of the statute.

Gochanour v. Alberta (Solicitor General) - (1990), 105 A.R. 289, 74 Alta.L.R. (2d) 12, [1990] 5 W.W.R. 178, [1990] A.J. No.348 (Alta.Q.B.)

- This was an application by an inmate, who wished to challenge certain actions taken by officials and the disciplinary board of the Edmonton Remand Centre, requesting the Court to compel the Legal Aid Society of Alberta to appoint counsel to represent him or alternatively, to appoint publicly-funded counsel directly. The Queen's Bench held that the general principle is that the Court has an inherent power to appoint counsel in a proper case as part of its duty to ensure a fair trial. There is no absolute right to counsel. However, when a person who cannot afford legal services is charged with an offence that is serious and complex, he or she is entitled to have counsel provided at the expense of the state where certain criteria are met. An applicant must convince the Court that the matters in question are so serious and complex that he could not receive a fair hearing without legal assistance. In this case, the application was dismissed on the grounds that the inmate appeared capable of representing himself and that the matters in question were not complex.

Winters v. Legal Services Society (British Columbia) - (1999), 137 C.C.C. (3d) 371, 177 D.L.R. (4th) 94, 27 C.R. (5th) 1, [1999] 3 S.C.R. 160, [1999] 9 W.W.R. 327 (S.C.C.)

- As prison disciplinary proceedings can result in up to 30 days' solitary confinement (up to 45 days in the case of multiple convictions), the inmate in this case was within the entitlement to mandatory legal services provided under s3(2) of the Legal Services Society Act, R.S.B.C. 1997, c.227 - now R.S.B.C. 1996, c.256. However, the term "legal services" is not synonymous with "legal representation" and the Act nowhere specifies a right to publicly funded legal counsel at a trial or hearing. The Court was of the opinion that the Legislature intended the Society to have discretion to determine when mandatory legal services under s3(2) ought to rise to the level of legal representation. In making its decision the Society must consider all of the relevant circumstances of the application, including the nature of the charge, the procedure for its determination, the severity of the punishment of the inmate if convicted, and other potential indirect consequences such as loss of remission, or prejudice to a potential transfer to a lesser institution. When legal representation at the hearing is that which a reasonable person of average means expects to receive, the Society is under a statutory duty to provide counsel at the hearing. The prospect of solitary confinement would persuade a reasonable person of average means to have counsel at the hearing. However, the task of the Legal Services Society is complicated by the fact that solitary confinement is theoretically available for a vast range of offences under the CCRA. It may or may not be a remote possibility in a particular case.

R v. Berrie - (1975), 24 C.C.C. (2d) 66, 30 C.R.N.S. 145 (B.C.Prov.Ct.)

- Several correctional officers were charged with common assault as a result of an attempt to shave an inmate, who had disregarded an order from the warden to shave off his beard. In convicting the accused, the Court stated that the accused correctional officers were neither required by law nor authorized by law to shave the inmate. The warden wanted the inmate to shave and ordered that he "was to shave like the rest" but the only way that the provision could be enforced, absent the co-operation and consent of the inmate, was by a proper disciplinary hearing under the regulations. While the loss of remission time or privileges emanating from disciplinary proceedings may or may not be effective, the Court held that the use of brute force would not be reasonable to accomplish the enforcement of an order of this sort.

Schimmens v. Canada (Attorney General) - (1998), 157 F.T.R. 118, [1998] F.C.J. No.1486 (F.C.T.D.)

- The Federal Court agreed with the inmate's argument that section 41(1) of the Act establishes a condition precedent that must be met before the institutional court has jurisdiction to proceed with the hearing of a charge. The Court held that section 41(1) creates an obligation on the institutional court member before hearing a charge to investigate to be satisfied that "all reasonable steps to resolve the matter informally, where possible" have been taken. In this case, the Federal Court found that the chairperson misapprehended the meaning of section 41(1) and did not fulfill this obligation. The decision was set aside and the matter referred back to another member of the disciplinary court for rehearing.

Russell v. Radley - (1984), 11 C.C.C. (3d) 289, 5 Admin.L.R. 39, [1984] 1 F.C. 543 (F.C.T.D.)

- The rights guaranteed by s11 of the Charter apply to a person charged with an "offence." Offence means conduct defined and prohibited by law which, if found beyond a reasonable doubt to have been committed in fact, is punishable by fine, imprisonment or other penalty imposed according to law upon the offender. By that standard a disciplinary offence defined in the Penitentiary Service Regulations is an offence within the meaning of s11. Accordingly, s11(d) is applicable to the trial of serious or flagrant disciplinary offences by the inmate disciplinary board. The disciplinary "court," being in reality an administrative tribunal, performing an administrative function, is not required by any standard to evince the plenitude of independence possessed by true courts. By providing for the appointment of "a person to preside over a disciplinary court," and especially when that person bears the independence of a lawyer who is not associated with the Penitentiary Service, the reality as well as the appearance of independence of the trier of allegations of disciplinary offences is augmented. It is not necessary to fully judicialize either the tribunal or its procedures in order to achieve sufficient independence for prison disciplinary tribunals to remain validly constituted within the contemplation of s11(d) of the Charter. As constituted, the tribunal raises no reasonable apprehension in the minds of informed persons, viewing the matter realistically and practically, about the independence of the lawyer presiding over it.

Dion v. Canada - (1986), 30 C.C.C. (3d) 108, [1986] R.J.Q. 2196 (Que.S.C.)

- The Court declared that sections 39(i.1) and 41.1 of the Penitentiary Service Regulations did not satisfy the requirements of fundamental justice referred to in section 7 of the Charter and were thus of no force and effect. According to the Court, section 41.1 gave an officer or penitentiary employee the absolute power to require a urine sample, even if the inmate did not present any danger of committing discipline breaches or acts linked to the absorption of intoxicants. This section did not contain the essential elements of fundamental justice because it did not ensure an inmate of protection against abuse by one of the members of the penitentiary service. Arbitrariness has always been, and will always be, contrary to fundamental justice. The same went for section 39(i.1) because it did not qualify, in any fashion, the prohibition that it imposes on all prisoners, whoever they are, in what circumstances they find themselves, and regardless of the nature of the intoxicant that they consume or may consume, except where it is authorized medication that is used in the directed manner. Section 39(i.1) exhibited the same arbitrary characteristic that is reproached in section 41.1.

Beaulieu v. Canada (Director of Leclerc Institution) - (1987), 4 W.C.B. (2d) 211, [1991] F.C.J. No.1122 (F.C.T.D.)

- The denial to an inmate of rehabilitative programmes following conviction for a prison disciplinary offence did not constitute double jeopardy and an infringement of section 11(h) of the Charter.

Haines v. Kingston Prison for Women (Disciplinary Tribunal) - (1990), 40 F.T.R. 76, [1990] F.C.J. No.1064 (F.C.T.D.)

- The Federal Court was satisfied that disciplinary court proceedings and proceedings before a criminal court are totally different proceedings. Therefore, as pursuant to section 13 of the Charter, a witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in prosecution for perjury or for the giving of contradictory evidence.

Hanna v. Matsqui Institution (Disciplinary Court) - (1990), 36 F.T.R. 134, [1990] F.C.J. No.629 (F.C.T.D.)

- The Federal Court declared that there was no doubt that the independent chairperson has the power to consider if a section of legislation is contrary to the Charter. However, the Court was satisfied that only the superior courts have the jurisdiction to declare a section of legislation contrary to the Charter and that this declaration can only be obtained by filing an action to obtain a declaratory judgment.

R v. Shubley - (1990), 52 C.C.C. (3d) 481, 74 C.R. (3d) 1, 42 Admin.L.R. 118, 65 D.L.R. (4th) 193, [1990] 1 S.C.R. 3 (S.C.C.)

- Prosecution under the Criminal Code for misconduct that had earlier been dealt with by way of a prison disciplinary hearing did not violate section 11(h) of the Charter. Such prosecution did not amount to double jeopardy. The Supreme Court of Canada applied the Wigglesworth test and held that proceedings against the accused under the Criminal Code would be barred by s11(h) of the Charter only if in the earlier internal prison disciplinary proceedings the accused had been found guilty and punished for an offence. This depends on whether the earlier proceedings were either by their very nature criminal proceedings or whether the proceedings involved the imposition of true penal consequences. The Court concluded that the prison disciplinary proceeding to which the inmate was subject was not, by its very nature, criminal. The inmate was being called to account to the prison officials for breach of his obligation as an inmate of the prison to conduct himself in accordance with prison rules. The purpose of internal prison disciplinary proceedings is not to mete out criminal punishment, but to maintain order in the prison. Further, the Court concluded that the sanctions conferred on the superintendent for prison misconduct do not constitute true penal consequences.

Morin v. Saskatoon Correctional Centre - (1990), 86 Sask.R. 269, [1990] S.J. No.462 (Sask.Q.B.)

- Citing R v. Shubley (1990), 52 C.C.C. (3d) 481, 74 C.R. (3d) 1, 42 Admin.L.R. 118, 65 D.L.R. (4th) 193, [1990] 1 S.C.R. 3 (S.C.C.), the Queen's Bench held that s11 of the Charter, and in particular the requirement that the tribunal be independent and impartial in the context of subparagraph (d), does not apply to the proceedings of the disciplinary panel in this case. Although The Shubley case dealt primarily with s11(h) of the Charter, the principles apply equally to s11(d). In terms of s7 of the Charter, the Queen's Bench stipulated that there appeared to be no question that orders made by a disciplinary panel for cancellation of earned remission, solitary confinement, or transfer of an inmate have been interpreted by the courts to be equivalent to the deprivation of "liberty" as envisaged by s7. Yet, the Queen's Bench was not aware of any case which had gone to the extent of interpreting "fundamental justice" in s7 as requiring an independent make-up for a disciplinary tribunal, (or at least that it be "independent and impartial" as required by s11(d). This is to read into s7 a substantive requirement. Section 7 has consistently been interpreted by the courts as a procedural provision, namely, that in the process of carrying out its duties, a tribunal must be impartial and unbiased in the sense that it does not have an interest in the matter upon which it adjudicates. The decisions made in most of the cases appear to equate "fundamental justice" in s7 of the Charter to the concept of "natural justice" in our common law. This common law principle also requires that a tribunal not be tainted by partiality or bias in coming to its decision.

R v. Martell - (1991), 118 A.R. 47, [1991] A.J. No.1207 (Alta.Prov.Ct.)

- An inmate was charged criminally with possession of hashish. Meanwhile, he was charged and pleaded guilty to penitentiary disciplinary offences that stemmed from the same alleged act. After a criminal trial, the inmate was convicted. Yet, before sentencing, the inmate applied for a stay on the grounds that his section 7 Charter rights had been violated by double prosecution for the same offence. The Provincial Court dismissed the application, holding that section 7 of the Charter had not been violated as the prison disciplinary proceedings were not criminal by nature and did not have penal consequences.

Picard v. Drummond Institution - (1995), 107 F.T.R. 1, [1995] F.C.J. No.1628 (F.C.T.D.)

- The Federal Court agreed with the statement made in Jackson v. Joyceville Penitentiary Disciplinary Tribunal, [1990] 3 F.C. 55, 32 F.T.R. 96 (T.D.), that the collection of a urine sample in a penitentiary is a search within the meaning of section 8 of the Charter. The freedom of inmates from state examination of bodily wastes without consent ought not to be taken away except in accord with the principles of fundamental justice.

Beaudoin v. William Head Institution - (1997), 139 F.T.R. 133, [1997] F.C.J. No.1663 (F.C.T.D.)

- In obiter, the Federal Court stated that it remains open as to whether the reduced expectation of privacy of an inmate of a federal correction institution is so low as to permit, without contravention of the Charter, a demand for a urine sample where the individual demanding the sample does not have reasonable grounds to believe that the inmate of who, the sample is demanded had ingested an intoxicant, or in other circumstances where it cannot be demonstrated that the public interest in safety and security in the correctional institutions is a predominant interest. The procedures of the CSC consequent on such a demand are clearly intrusive into generally applicable privacy expectations.

Blanchard v. Disciplinary Board of Millhaven Institution - [1982] 1 F.C. 309 (F.C.T.D.)

- Except to the extent that there are statutory provisions or regulations having the force of law to the contrary, there is no requirement to conform to any particular procedure or to abide by the rules of evidence generally applicable to judicial or quasi-judicial tribunals or adversary proceedings. There is, however, an overall duty to act fairly in administrative matters and, when applied to an administrative hearing or enquiry, the duty to act fairly translates into one of ensuring that the enquiry is carried out in a fair manner and with due regard to natural justice. Although the hearing is not to be conducted as an adversary proceeding but as an inquisitorial one, there is no duty on the person responsible for conducting the hearing to explore every conceivable defence or to suggest possible defences to the prisoner, although there is a duty to conduct a full and fair enquiry which, of course, might lead to the obligation of asking questions of the prisoner or of any witness, the answers to which might prove exculpatory in so far as the prisoner is concerned. He must, in other words, examine both sides of the question.

McLeod - (Re)(1982), 9 W.C.B. 249 (F.C.T.D.)

- The chairperson of the disciplinary court breached the duty to act fairly when he entered a plea of guilty on the inmate's behalf after the inmate had pleaded "nolo contendere." As that plea was unknown in law, the chairperson should have considered there to be no plea entered in which case a plea of not guilty was required to be entered by the tribunal.

Lasalle v. LeClerc Institute (Disciplinary Tribunals) - (1983), 37 C.R. (3d) 145, 5 Admin.L.R. 23, [1983] F.C.J. No.1099 (F.C.T.D.)

- The Federal Court quashed the disciplinary convictions made against an inmate. The inmate raised an issue with respect to the fairness of the disciplinary hearing, stating that he was permitted to enter the hearing room only after the witnesses and the judge had conferred, and again that, after the conclusion of the hearing, the witnesses laying charges against him, the penitentiary representative and the judge remained in the room before he was called back and found guilty. The Court held that while it has been held that such a hearing is in the nature of an inquiry and not an adversary process, this practice appears to be unfair, if not actually prejudicial, to the inmate.

Gingras v. Canada - [1987] F.C.J. No.426 (F.C.T.D.)

- The duty to provide procedural fairness in the adjudication of disciplinary matters was not breached. The inmate was present at the hearing, permitted to question witnesses, permitted to call witnesses and to give evidence of his own. The hearing took place three days after the incident. The inmate's first language was French and an interpreter was available to him. He did not ask for further time to consider his situation or to prepare his case. If the disciplinary court had decided to proceed over his objections there were remedies available. Furthermore, the Federal Court could not agree with the CSC's argument that this application for judicial review was an academic exercise because the inmate had already served his time, and the charges would not effect his parole eligibility date. The Court held that although the date is not affected, these charges could very well determine whether he is in fact granted parole. Such circumstances are not academic to the inmate.

Tsang v. Kent Institution - (1988), 24 F.T.R. 103, [1988] F.C.J. No.845 (F.C.T.D.)

- An inmate applied to the Federal Court for an order prohibiting a disciplinary court from proceeding with disciplinary charges against him, arguing that the disciplinary court lost its jurisdiction when the charge did not proceed as originally scheduled. The hearing had to be postponed due to a disturbance at the institution that ultimately led to a "lockdown." In dismissing the application, the Federal Court found no violation of the inmate's section 7 or 11 Charter rights as a result of the disciplinary court's rescheduling of the hearing. The Court held that in the absence of any evidence that the disciplinary court failed to comply with its own rules of procedure or failed to comply with a statutory procedural requirement, it was difficult to see how a legal argument could be made that in not proceeding with the charge on the originally scheduled day, the disciplinary court lost jurisdiction. Moreover, even if the disciplinary court had failed to comply with some procedural rule, regulation or statutory provision, one would still have to ask whether that failure was of so severe a nature as to constitute a loss of jurisdiction. It would have been difficult on the facts of this case to classify a breach of the nature alleged by the inmate as so serious in nature as to deprive the disciplinary court of jurisdiction - one overriding reason for such difficulty was the fact that the inmate suffered no prejudice thereby.

Vilon v. Canada - (1989), 26 F.T.R. 227, [1989] F.C.J. No.66 (F.C.T.D.)

- At a hearing, the independent chairperson decided to suspend a sanction previously imposed on an inmate by the disciplinary court. By agreeing to suspend the punishment previously imposed by him the chairperson of the disciplinary court was reviewing his own decision and clearly acting unlawfully. There was nothing in the Penitentiary Service Regulations that authorized him to do that. While the chairperson was entitled to allow a new hearing in the event that he was presented with new evidence, he lacked jurisdiction to review his decision and suspend the punishment.

Hendrickson v. Kent Institution - (1990), 32 F.T.R. 296, [1990] F.C.J. No.19 (F.C.T.D.)

- The principles governing the penitentiary discipline are to be found in Martineau and Butters v. Matsqui Institution Inmate Disciplinary Board (1977), 33 C.C.C. (2d) 366, 74 D.L.R. (3d) 1, [1978] 1 S.C.R. 118, 14 N.R. 285 (S.C.C.); Martineau v. Matsqui Institution Inmate Disciplinary Board (No.2)(1979), 13 C.R. (3d) 1, 50 C.C.C. (2d) 353, 106 D.L.R. (3d) 385, [1980] 1 S.C.R. 602, 30 N.R. 119 (S.C.C.); Blanchard v. Disciplinary Board of Millhaven Institution (1982), 69 C.C.C. (2d) 171 (F.C.T.D.); Howard v. Stony Mountain Institution Inmate Disciplinary Court (1985), 19 C.C.C. (3d) 195, 19 D.L.R. (4th) 502, 11 Admin.L.R. 63, 45 C.R. (3d) 242 (F.C.A.), and may be summarized as follows: 1) A hearing conducted by an independent chairperson of the disciplinary court of an institution is an administrative proceeding and is neither judicial nor quasi-judicial in character. 2) Except to the extent there are statutory provisions or regulations having the force of law to the contrary, there is no requirement to conform to any particular procedure or to abide by the rules of evidence generally applicable to judicial or quasi-judicial tribunals or adversary proceedings. 3) There is an overall duty to act fairly by ensuring that the inquiry is carried out in a fair manner and with due regard to natural justice. The duty to act fairly in a disciplinary court hearing requires that the person be aware of what the allegations are, the evidence and the nature of the evidence against him and be afforded a reasonable opportunity to respond to the evidence and to give his version of the matter. 4) The hearing is not to be conducted as an adversary proceeding but as an inquisitorial one and there is no duty on the person responsible for conducting the hearing to explore every conceivable defence, although there is a duty to conduct a full and fair inquiry or, in other words, examine both sides of the question. 5) It is not up to this 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 merely to consider whether there has in fact been a breach of the duty to act fairly. 6) The judicial discretion in relation with disciplinary matters must be exercised sparingly and a remedy ought to be granted only in cases of serious injustice.

Teneycke v. Matsqui Institution - (1990), 33 F.T.R. 181, 43 Admin.L.R. 294, [1990] 2 F.C. 106 (F.C.T.D.)

- An inmate was charged with a disciplinary offence which took place in his cell. Without notifying the inmate the independent chairperson took a view of the cell that included the moving of furniture and taking of measurements. The Federal Court held that in the absence of a specific statutory provision to the contrary, views may be conducted only for the very restrictive purpose of allowing the tribunal to better understand the evidence and may never have the purpose of allowing the gathering of evidence at the scene by the tribunal. The parties must always be present whenever a view is taken unless the right is waived since the parties are, except where certain administrative decisions are being considered, entitled as of right to be present or represented at all proceedings involved in the decision-making process. Views are part of that process. Under no circumstances is a person presiding either a trial or an administrative board or tribunal charged with a decision-making responsibility involving the rights of others, entitled to actively gather evidence or to decide matters on the basis of his own observation of material facts which have not been established in evidence.

Hanna v. Mission Institution Disciplinary Court - (1995), 102 F.T.R. 275, [1995] F.C.J. No.1370 (F.C.T.D.)

- Where an inmate maintained that the independent chairperson exceeded his jurisdiction by acting as both chairperson and prosecutor, and in calling witnesses after the inmate closed his case, the Federal Court held that it is well established in the jurisprudence that prison disciplinary proceedings are not adversarial in nature, but are inquisitorial. As such, it is not a breach of a right to a fair hearing to have the chairperson ask questions in order that a proper determination can be made as to whether or not the allegations in the offence report have indeed been substantiated. With respect to the calling of a witness after the applicant gave his evidence, the Federal Court noted that in Hendrickson v. Kent Institution (1990), 32 F.T.R. 296, [1990] F.C.J. No.19 (F.C.T.D.), it was held that having the chairperson of a disciplinary court call witnesses after an inmate has given evidence is not a violation of either the rules of fairness or outside the jurisdiction of the independent chairperson, provided the inmate is present, is given full opportunity to hear the evidence, to give his or her version of the case and to cross-examine the witness.

Stocking v. Joyceville Institution Disciplinary Court - (1995), 98 F.T.R. 157, [1995] F.C.J. No.936 (F.C.T.D.)

- An inmate had not provided to the Federal Court transcripts from the disciplinary hearing or with the original tapes of the hearing. While there was an allegation made by the inmate in his affidavit that two correctional officers gave contradictory evidence with respect to several facts, the Federal Court held that in the absence of any record to verify whether in fact these inconsistencies existed, it must disregard the statements pertaining to the alleged contradictions. Further, without a transcript (electronic or written) of the proceedings before the disciplinary court, the Court had no indication as to what evidence was relied upon by the independent chairperson. In the absence of sufficient particulars with respect to the hearing before the disciplinary court, the Court must conclude that the chairperson's decision was reasonable.

Belair v. Canada (Solicitor General) - [2000] F.C.J. No.199 (F.C.T.D.), 2000 CanLII 14967 (F.C.)

- An inmate had asked that the disciplinary court proceedings he faced go forward in French before a Francophone or bilingual chairperson without the assistance of an interpreter, as required by section 16 of the Official Languages Act. That request was denied and the inmate was convicted of a disciplinary offence by a unilingual anglophone chairperson aided by an interpreter. The inmate applied to the Federal Court for judicial review asking the Court to quash the tribunal's decision on the ground that he was entitled to the hearing he sought under section 16. In denying the inmate relief, the Federal Court held that the Official Languages Act states that the right claimed by the applicant inmate is only available before certain tribunals, which puts in question the classification of the tribunal. Accordingly, a disciplinary tribunal is not a tribunal that carries out adjudicative functions within the meaning of the Official Languages Act.

Bailey v. Mission Institution - (1986), 17 W.C.B. 155, 6 F.T.R. 69, 25 Admin.L.R. 219, [1986] F.C.J. No.505 (F.C.T.D.)

- An inmate was charged and convicted of having contraband in his possession, namely a ball point pen tube with marijuana residue, pursuant to section 39(i) of the Penitentiary Service Regulations. The Federal Court allowed the inmate's application for judicial review in part on the grounds that the inmate was denied the right to defend himself on the evidence that was used to obtain a guilty decision. A correctional officer's affidavit to the Court indicated that the memorandum showing the results on the testing of the substance in question was in the officer's possession during the hearing, was referred to by the officer during the hearing, but was never placed before the inmate during the course of the proceedings. The Court held that if the memorandum showing the results on the testing is not shown to the person charged with an offence, then that person cannot make a defence to that evidence.

Picard v. Drummond Institution - (1995), 107 F.T.R. 1, [1995] F.C.J. No.1628 (F.C.T.D.)

- An inmate refused to a demand to provide a urine sample and was convicted of a disciplinary offence pursuant to section 54(a) of the CCRA. While prison officials made the demand on the basis of a claim that the inmate had taken an intoxicant, they neither told the inmate anything about their grounds for believing that he was taking intoxicants, nor did they provide in the notice of disciplinary charges any summary of the evidence in support of their charge other than a statement that read as follows: "Reason Reason to believe." It was only at the hearing, after the inmate had pleaded not guilty to the charge, did officials indicate that the reasonable grounds to believe the inmate had committed the offence were based on information obtained from inmates or staff members but without giving any other particulars. The Federal Court allowed the inmate's application for judicial review challenging the conviction. Section 25 of the Regulations specifically requires that the notice of a charge of a disciplinary offence contain a summary of the evidence to be presented in support of the charge at the hearing. The Federal Court asserted that the simple statement provided by officials was not sufficient to meet the requirement and enable the inmate to prepare a full answer and defence. In Demaria v. Regional Classification Board, [1987] 1 F.C. 74, 69 N.R. 135 (F.C.A.), the Federal Court of Appeal confirmed that compliance with the principles of fundamental justice or the duty of fairness requires the provision of information on the reasonable grounds to believe that an offence has been committed. In light of the case law, it was the Federal Court's view in this case that, in the absence of evidence from the authorities demonstrating that they withheld only such information as was strictly necessary, the failure to give the inmate any information at all concerning the reasonable grounds of the officers to believe that an offence was committed violated the inmate's rights under not only sections 56 and 57 of the CCRA and section 25 of the Regulations, but also section 7 of the Charter.

Lasalle v. LeClerc Institute (Disciplinary Tribunals) - (1983), 37 C.R. (3d) 145, 5 Admin.L.R. 23, [1983] F.C.J. No.1099 (F.C.T.D.)

- The Federal Court quashed the disciplinary convictions made against an inmate. A Commissioner's Directive provided that no finding shall be made against an inmate charged with a disciplinary offence unless he has received written notice of the charge in sufficient detail at least 24 hours prior to the beginning of the hearing, so that the inmate would have reasonable time to prepare his defence. In this case, the inmate was given the written notice only immediately prior to the hearing. According to the affidavit of a correctional official, the inmate waived the 24 hour requirement. The Court held that the holding of a hearing without the 24 hour notice is an exception to the rule, and the burden of proof that the inmate has consented to waive the delay must devolve upon the prison authorities. At the very least, such a waiver should be made in writing in order to avoid subsequent questions of credibility of witnesses being raised.

Canada (Attorney General) v. Plante - (1995), 103 F.T.R. 161, [1995] F.C.J. No.1509 (F.C.T.D.)

- An inmate was acquitted of a disciplinary offense by the institution's disciplinary court on the grounds that the Inmate Offence Report and Notification of Charge was delivered to him after the expiration of a two-day period set out in the Commissioner's Directive. The Attorney General sought judicial review of the disciplinary court's decision. In allowing the application, the Federal Court found the disciplinary court to have wrongly attributed a legislative effect to the CD by concluding that compliance with the two-day limit set out in the CD mandatory, and to have failed to exercise its jurisdiction by not considering whether the failure to comply with the two-day limit prejudiced the inmate. Further, the Federal Court held that if the disciplinary court had looked into whether the failure to comply with the time limit set out had prevented the inmate from preparing a full answer and defence, it would have found that there was no such prejudice. The record revealed that the Notice was given to the inmate by the chairperson of the disciplinary court when the inmate appeared for the first time and pleaded not guilty to the offence charged. The hearing into the matter did not start until almost a month later. At that hearing the inmate was represented by a lawyer who, considering his submissions to the disciplinary court, was very familiar with the case. Accordingly, the Federal Court set aside the disciplinary court's decision and referred the case back to the disciplinary court to be reconsidered and decided on the premise that the date on which the offence report was delivered to the inmate did not prejudice his full answer and defence before that court.

Hanna v. Mission Institution Disciplinary Court - (1995), 102 F.T.R. 275, [1995] F.C.J. No.1370 (F.C.T.D.)

- In challenging a disciplinary court conviction, the inmate maintained that the notification of the charge was not delivered three working days before the proposed date of the hearing, contrary to section 28 of the Regulations. The Federal Court dismissed the application. The inmate was served with the notice of hearing on December 23. The hearing was originally scheduled for December 29. With various statutory holidays, the Court agreed that it appeared that December 29 did not allow for three working days. However, due to the unavailability of a key witness, the matter was put over to January 12. The only matter of substance that occurred prior to the adjournment was that the applicant entered a plea of not guilty. No evidence was led. More importantly, the inmate indicated that he was ready and willing to proceed on that day. The actual hearing of the matter, namely the calling of witnesses and the hearing of evidence, proceeded on January 12. In such circumstances, the Court was not certain that one could say in fact that the hearing did not take place well after the three-day notification period. In any event, the jurisprudence was clear that even if the disciplinary court failed to comply with some procedural rule, regulation or statutory provision, the question of whether that failure was so severe in nature as to constitute a loss of jurisdiction would still have to be addressed. In this regard, prejudice to the inmate is a consideration. In this case, whether the time limit was adhered to or not, it was clear that the inmate suffered no prejudice.

Jackson v. Stony Mountain Inmate Disciplinary Court - (1995), 90 F.T.R. 296, 38 C.R. (4th) 46, [1995] F.C.J. No.179 (F.C.T.D.)

- Sections 25 and 31(2) of the Regulations impose on the CSC the obligation of informing the inmate of the time, place and date of the disciplinary hearing, allowing the inmate to retain and instruct legal counsel, and allowing the inmate's counsel to fully participate in the hearing. However, they do not appear to impose an obligation on the CSC to directly notify the inmate's counsel of the hearing date. It may be sufficient if the inmate is given proper notice and is given a reasonable opportunity to inform his or her counsel of the time and date of the hearing. Or if counsel is present when an independent chairperson schedules a date, it may be that the CSC need do nothing further. However, if the CSC schedules a hearing and assumes the responsibility for notifying counsel, the information given to counsel obviously must be accurate. If the CSC has taken on this responsibility, and has failed to provide to counsel the correct time or date, then it fails to ensure that the inmate's legal counsel has been permitted to participate in the proceedings to the same extent as the inmate, as mandated by section 31(2).

Pearce v. Canada (Solicitor General) - [1995] F.C.J. No.1097 (F.C.T.D.)

- An inmate was required to appear before a disciplinary court to answer a charge of taking an intoxicant contrary to subsection 40(k) of the CCRA. During that hearing, the inmate was further charged with attempting to disobey a written rule governing the conduct of inmates pursuant to subsections 40(s) and (r) of the Act - an allegation that stemmed from the same set of events as the 40(k) charge. A separate hearing took place for this second charge where the inmate requested to be informed of the rule he was alleged to have violated. The inmate also pointed out to the independent chairperson the provisions of section 30 of the Regulations and objected to the jurisdiction of the Chairperson to hear the charge before it. The chairperson refused the request of the inmate to be informed as to the rule he had allegedly tried to breach and also ruled that he could hear this second charge despite the provisions of section 30. The chairperson proceeded to find the inmate guilty. The Federal Court allowed the inmate's application for judicial review challenging the conviction for this second charge. In the circumstances, it was clear that the inmate expected time to prepare his defence and to have counsel present. He was effectively denied both. Accordingly, the conviction and penalty were set aside and the matter sent for re-hearing before a different chairperson.

Opoonechaw v. Stony Mountain Institution, Inmate Disciplinary Court - (1996), 115 F.T.R. 229, [1996] F.C.J. No.1049 (F.C.T.D.)

- An inmate was convicted by a disciplinary court of taking an intoxicant into his body contrary to section 40(k) of the CCRA. As part of his sentence, the inmate was required to provide three negative urine samples over a three-month period. The inmate refused to provide a urine sample when requested and was charged with failing to provide the urine sample pursuant to "section 41(l)" of the CCRA and section 71 of the Regulations. The charge should have read "section 40(l)." The inmate also refused a second request for a urine sample. Concerning this second refusal, the Inmate Offence Report and Notification of Charge stated that the inmate was charged with failing to provide a urine sample under section 71 of the Regulations. The disciplinary court convicted the inmate for these acts. The inmate applied for judicial review, arguing that he was not aware of the charges that he had to meet. The Federal Court dismissed the application. The Court held that while the Notification of Charge forms indicate that he was charged under section 41(l), which was inapplicable, the nature of the charge must be otherwise apparent to the inmate. In the Court's view, the forms made it clear to the inmate that he was charged with refusing to provide a urine sample as per the disciplinary court order. It was an error for the first report to state that the charge related to section 41(l). However, both the first and second reports refer to the charge as being a failure or refusal to provide a urine sample as demanded pursuant to section 71 of the Regulations. The reference to section 71 of the Regulations brought the request for a urine sample within section 40(a) of the Act. Therefore, the inmate was aware of the charge that he had to meet and there was no denial of fairness or natural justice in this case.

Savard v. Canada (Attorney General) - (1997), 128 F.T.R. 271, [1997] F.C.J. No.105 (F.C.T.D.) (French version)

- The Federal Court allowed the inmate's application for judicial review on the basis that there was a flagrant breach of section 25 of the Regulations, as the notice of charge contained absolutely no "summary of the evidence to be presented in support of the charge at the hearing." In the Court's view, this breach is fatal. As the notice of charge in this case contained merely a description of the offence and no summary of the evidence to be presented in support of the charge at the hearing before the disciplinary tribunal is given, the Court was forced to find that the authorities did not carry out the will of Parliament, which intended to give an inmate charged with a disciplinary offence a specific and particular means of preparing a full and complete defence, which is a recognized rule of natural justice.

Howard v. Stony Mountain Institution Inmate Disciplinary Court - (1985), 19 C.C.C. (3d) 195, 19 D.L.R. (4th) 502, 11 Admin.L.R. 63, 45 C.R. (3d) 242 (F.C.A.)

- The duty to act fairly was not breached where prison authorities failed to fully complete the "Involuntary Transfer Check List" as prescribed by the "Instructions."

Hnatiuk v. Canada - (1987), 12 F.T.R. 44, [1987] F.C.J. No.624 (F.C.T.D.)

- The enactment of s7 of the Charter has not created any absolute right to counsel in all disciplinary court proceedings or hearings. It is undoubtedly of the greatest importance to a person whose life, liberty or security of the person are at stake to have the opportunity to present his case as fully and adequately as possible. The advantages of having the assistance of counsel for that purpose are not in doubt. But what is required is an opportunity to present the case adequately. Whether or not an inmate has a right to representation by counsel will 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. The list is not exhaustive. Whether or not an inmate's request for representation by counsel can lawfully be refused is not properly referred to as a matter of discretion but is a matter of right where the circumstances are such that the opportunity to present the case adequately calls for representation by counsel. The presiding officer has no authority to adjudicate on the right of an inmate to counsel. The presiding officer will no doubt have to consider and take a position on whether the case is one in which the request for counsel can be denied and he must be prepared to act on his view. Yet, the presiding officer's denial of such a request cannot be regarded as an adjudication of the right and cannot prevent a superior court in the exercise of supervisory jurisdiction from determining the question on its own.

Faulkner v. Stony Mountain Institution - (1986), 6 F.T.R. 195, [1986] F.C.J. No.439 (F.C.T.D.)

- The Federal Court noted that there was no absolute right to counsel in every instance, and it was not uncommon for the chairman of an administrative tribunal, a quasi-judicial or judicial tribunal, to make the determination of the necessity of the requirement for counsel in a given situation in the interest of natural justice.

Mitchell v. Crozier - (1986), 1 F.T.R. 138, [1986] 1 F.C. 255 (F.C.T.D.)

- As a result of an inmate's refusal to read the charge sheets given to him, he was under the mistaken belief that the disciplinary charges facing him were categorized as minor rather than serious in nature. As a result, the inmate did not seek to have, and did not have, counsel present. The Court noted that it would appear that on the broad principle of Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.) that the inmate was entitled to be represented by counsel in the proceeding before the disciplinary court because of the possibility of forfeiture of his earned remission. However, this right to representation by counsel must be judged according to the particular circumstances of the case. The Court dealt with the question of whether the inmate's failure to exercise his right to request representation by counsel in disciplinary proceedings, of which he is or should have been aware but for his own conduct, could be afterwards seen to constitute a deprivation of his right to liberty within the meaning of Section 7 of the Charter? The Court thought not. In this case, what led to the inmate's misconception of the nature of the charges was his own conduct and nothing else. The inmate refused on two occasions to read the charges and took it upon himself to categorize them as minor in nature. There was no inducement or representation by the disciplinary court to treat them as other than serious. The inmate was or should have been fully aware of his right to request representation by counsel in relation to the two charges complained of and he chose not to do so.

Savard v. Edmonton Institution Disciplinary Court - (1986), 3 F.T.R. 1 (F.C.T.D.)

- An inmate was charged with a "serious" disciplinary offence and applied to the Federal Court for a writ of prohibition to prevent the prison's disciplinary court and the warden from proceeding with the charge unless the inmate were permitted to be represented by counsel. The Federal Court refused to grant the order and dismissed the application. In reaching its decision, the Court applied the decision in Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.) to the facts of this case. The Court held that in determining the seriousness of the charge, the first of the factors set out in Howard, it interpreted the Howard case as indicating that the particular circumstances of the individual case must be considered as well as the theoretical consequences which could flow from the charges generally of the type in question. With that said, since in this case there was no allegation of damage to property and due to the fact that the inmate was serving a 25-year life sentence, there was no possibility of the loss of earned or statutory remission. Thus, the Court could not find that the charge is of such a serious nature that, for the reason alone the right to counsel was required in order to ensure that the principles of fundamental justice were complied with. In considering the other elements listed in Howard, the Court found that the charge was not a complex one; it revolved primarily around determinations of fact. Further, there was no indication that the inmate lacked ability or capacity to present his own defence. There was no indication that any procedural difficulties were involved in the case.

Walker v. Kingston Penitentiary Disciplinary Board - (1986), 3 F.T.R. 109, 52 C.R. (3d) 106, [1986] F.C.J. No.249 (F.C.T.D.)

- Citing Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.), the Court noted that whether the representation by counsel could be held to have been lawfully refused in a given case would depend on the circumstances, and that where the circumstances are such that the opportunity to present the case adequately calls for representation by counsel, then representation by counsel must be seen as a matter of right. The Court felt that in reviewing all the circumstances in this case it was not satisfied that all the circumstances were such that the opportunity to present his case adequately required representation by counsel.

Engen v. Kingston Penitentiary (Disciplinary Board) - (1987), 60 C.R. (3d) 109, 12 F.T.R. 7, [1987] F.C.J. No.641 (F.C.T.D.)

- Citing Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.), the Court 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 discussing the Howard criteria, the Court stipulated 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. The Court held that it would be naïve to suggest that the 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. Where 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. On the circumstances of this case, the Court held that despite the severe consequences that could result from the inmate's conviction, it 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, the Court 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.

Kelly v. Joyceville Institution (Disciplinary Board) - (1987), 11 F.T.R. 197, 25 Admin.L.R. 303, [1987] F.C.J. No.409 (F.C.T.D.)

- The Federal Court dismissed a challenge to a disciplinary court's refusal to allow the inmate to be represented by counsel. Citing Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.), the Court held that decision regarding an inmate's right to counsel before a disciplinary court is not a matter of the chairperson's discretion, but rather it is and remains an application of Section 7 of the Charter, which is open to review by the Federal Court to determine whether or not the inmate has been deprived of his stated constitutional rights, in accordance with the principles of fundamental justice. An inmate does not have the absolute right to counsel in such circumstances. Applying the Howard criteria to the circumstances in this case, the Court held that the disciplinary court's decision was justified.

Thériault v. Comité de discipline de L'Institution du center Fédéral de Formation - (1987), 16 F.T.R. 14, [1987] F.C.J. No.138 (F.C.T.D.)

- Where an inmate who was charged with two "intermediary" disciplinary offences was not permitted to be represented by counsel at his hearing, the Federal Court allowed his application to quash the disciplinary court convictions. Citing Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.), the Court held that the chairperson erred in refusing the inmate permission to be represented by an attorney, as it was clear from the transcripts that the inmate had difficulty understanding the charges against him, that some of the concepts involved in the offence in this case involved some special problems of interpretation that even the Presiding Officer of the tribunal admitted to being somewhat ambiguous, and that the inmate was unable to present his own defence.

Tremblay v. Laval Institution - (1987), 11 F.T.R. 1, 25 Admin.L.R. 235, [1987] 3 F.C. 73, [1987] F.C.J. No.321 (F.C.T.D.)

- The Federal Court allowed an application for judicial review by an inmate who, being charged and convicted of the "intermediary" disciplinary offence of possession of contraband, was refused permission to have legal counsel present at his hearing. The Court applied the criteria set out in Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.). The Court held that having regard to the seriousness of the charge and the potential penalty, the fact that there were points of law at issue, and that the inmate lacked capacity to fully present those points of law, the inmate had a right to be represented by counsel at his disciplinary hearing.

Wright v. Canada (Inmate Disciplinary Court of Stony Mountain) - (1987), 4 W.C.B. (2d) 47, 18 F.T.R. 63, [1987] F.C.J. No.1171 (F.C.T.D.)

- Section 7 of the Charter has not created any absolute right to counsel in penitentiary disciplinary proceedings. However, the characterization of the offences as "minor," "intermediary" or "serious" is not conclusive on the issue as to whether the request for counsel can be allowed or denied. Even for a so-called "minor" offence, in a proper case, the right might well have to be permitted. Each case must be approached on its own particular circumstances.

Armstrong v. Warkworth Institution - (1989), 28 F.T.R. 89, [1989] F.C.J. No.403 (F.C.T.D.)

- An inmate was charged and convicted of two disciplinary offences. In challenging the decision by way of judicial review, the inmate argued that the independent chairperson had erred in refusing to allow the inmate to be represented by counsel at the hearing. The Federal Court dismissed this part of the application. Although the chairperson failed to give any consideration to the test to be applied before refusing the request, the Court was nevertheless satisfied that he was right in his refusal. The charge was not of a serious nature. There was no loss of earned remission. The inmate's request for counsel was merely an afterthought as it was made well into the hearing. If the inmate wanted to be represented by counsel he should have asked for an adjournment of the hearing in order to retain counsel or he should have made his request for counsel at the commencement of the hearing. Moreover, the Court was satisfied that the inmate was able to defend himself.

Trudel v. Warkworth Institution - (1989), 27 F.T.R. 94, [1989] F.C.J. No.309 (F.C.T.D.)

- An inmate was charged and convicted of several disciplinary offences. In his application for judicial review, the inmate took issue with the fact that the chairperson refused counsel to the inmate. The Federal Court dismissed the application. It was a given that there is no right to counsel and that it falls to the chairperson to determine whether an inmate requires counsel in the circumstances of each case. Here, the chairperson ruled against the necessity for counsel on the basis that: 1) the charges were categorized as intermediary offences; 2) the charges of possession of contraband deal strictly with factual issues, and not legal matters the inmate might be incapable of understanding; 3) the inmate appeared to be able to understand the charges and make representations on his own behalf; 4) the inmate was familiar with the procedure having been charged with prior disciplinary offences; 5) the inmate was made aware of the evidence against him at the hearing and was given the opportunity to respond to it. The Court held that there was no suggestion of bias on the part of the chairperson and his refusal to allow the inmate counsel was reasonable in the circumstances.

Vandenameele v. Stony Mountain Institution Inmate Disciplinary Court - (1995), 99 F.T.R. 238, [1995] F.C.J. No.1212 (F.C.T.D.)

- The Court found that the independent chairperson made no inquiry as to whether the CSC had exercised its responsibility to ensure the inmate was given a reasonable opportunity to retain and instruct legal counsel. There was no doubt that the inmate had adequate time to identify and retain and instruct counsel. However, the passage of time does not satisfy the obligation on the CSC to ensure that an inmate is given a reasonable opportunity to retain and instruct legal counsel as mandated by section 31(2) of the Regulations. In this case, there was no evidence whatsoever before the chairperson that the CSC had met its obligation. While the chairperson also had an obligation pursuant to section 28 of the Regulations to ensure that the inmate's hearing took place as soon as practicable after the events giving rise to the hearing, the Court concluded that the obligation did not excuse him from ensuring that the obligation of the CSC to the inmate under section 31(2) of the Regulations had been fulfilled. In failing in this regard, and in not granting an adjournment if he found the CSC had not fulfilled its obligation, the chairperson failed to fulfill the duty of fairness that rested on him.

Goulet v. Canada (Correctional Service) - (1996), 121 F.T.R. 54, [1996] F.C.J. No.1307 (F.C.T.D.)

- An inmate requested an adjournment of his disciplinary hearing on the ground that he wished to be represented by a specific attorney from the legal aid office, not in attendance because of a "double-booking" on the attorney's part. A different legal aid lawyer, in attendance, made this request on behalf of the inmate. The chairperson refused the request and the inmate applied for judicial review. In dismissing the application, the Federal Court held that the power to grant adjournments under the law given to the chairperson of the disciplinary court is discretionary, and the question that the Federal Court must ask is whether the denial of the adjournment had the effect of causing irreparable harm to the inmate. The Court stipulated that the effect of the chairperson's refusal to grant the adjournment was to deprive the inmate of the services of his original lawyer. On the question of the right to counsel, the Court noted that the inmate in fact had counsel present. It was therefore wrong to argue that he did not have an opportunity to make representations. In addition, it is difficult to accept that another lawyer could not properly represent the inmate, having regard to the questions that the original lawyer intended to raise. All things considered, it was apparent that the presence of the original lawyer would have done nothing to change the decision. The Court therefore concluded that the denial of the adjournment did not have the effect of violating the principles of procedural fairness.

Pellerin v. Canada (Attorney General) - (1997), 141 F.T.R. 18, [1997] F.C.J. No.1378 (F.C.T.D.)

- The independent chairperson of a disciplinary court is under no obligation to automatically grant adjournments absent any valid reason being given. However, nothing was more "reasonable," to use the words of section 31 of the Regulations, than the request for postponement by the inmate, taken by surprise by the holding of his disciplinary trial on a day other than the one initially scheduled. Despite the fact that he knew his request would entail another full week for him in administrative segregation, the inmate preferred to request a postponement in order to communicate to his counsel the new date of his trial that had been cancelled the day before.

Gosselin v. Canada (Procureur général) - (1998), 152 F.T.R. 201, [1998] F.C.J. No.854 (F.C.T.D.)

- The Federal Court dismissed an application where an inmate challenged the decision of a independent chairperson to grant him an adjournment in order to retain a lawyer to represent him at his disciplinary hearing. While the inmate asserted that he was unable to use the newly installed Millennium telephone to contact his lawyer because he had yet to register the lawyer's name on the required list of numbers, the Court held that it was possible for the inmate to have alternatively used the office telephone by simply reserving his telephone time with the CO II in his cell block. As such, the chairperson of the disciplinary court did not err in exercising his discretion in an unfair and discriminatory manner when he refused the request for an adjournment.

Tonner v. Mountain Institution - (1984), 12 W.C.B. 103, [1984] B.C.J. No.915 (B.C.S.C.)

- The provincial superior court dismissed an application for habeas corpus with certiorari in aid regarding a disciplinary court conviction. The inmate argued that his Section 7 Charter guarantee to fundamental justice had been violated by the failure on the part of the disciplinary court to produce the author of a written report for cross-examination during the hearing. The Court held that although the chairperson had a duty to be fair, he was not obliged to conduct the hearing in accordance with the rules of a court of law. The chairperson would have failed in his duty had the inmate taken issue with the contents of the report and requested the opportunity to cross-examine the author, but as that had not occurred in this case, the chairperson had acted fairly.

Chalk v. Matsqui Institution - [1987] F.C.J. No.339 (F.C.T.D.)

- The Federal Court described the decision of an independent chairperson conducting a disciplinary court hearing to take into consideration a report of a correctional officer without calling the author to testify or be available for cross-examination as improper. The Federal Court was of the view that it leads to an appearance of unfairness. Furthermore, the Federal Court asserted that such a report should be excluded entirely from the material before the chairperson unless the author of the report testifies or is at least available for cross-examination.

Vittis v. Mountain Institution - (1988), 20 F.T.R. 158, [1988] F.C.J. No.185 (F.C.T.D.)

- The Federal Court asserted that if it had concluded from the material before it that the inmate had asked to cross-examine the witness and had been refused, and had it further found that the decision of the chairperson had been based, at least partly, on the witness' report, then the Court would have had no hesitation in granting the inmate's application. However, such was not the case.

Armstrong v. Warkworth Institution - (1989), 28 F.T.R. 89, [1989] F.C.J. No.403 (F.C.T.D.)

- An inmate was charged and convicted of two disciplinary offences. In challenging the decision the inmate argued that the independent chairperson erred in refusing the inmate a request to call a specific witness. The Federal Court dismissed this part of the application. The Court held that in cases where a witness or witnesses are readily available to be questioned and a request to have the witness testify is made by an inmate, the request should normally be granted if it is determined that what the witness would testify to could or would be a significant factor in determining the guilt or innocence of the inmate. In this case, the Court stated that even if the witness were to have been called, his evidence would not have affected the outcome of the hearing.

Hendrickson v. Kent Institution - (1990), 32 F.T.R. 296, [1990] F.C.J. No.19 (F.C.T.D.)

- An inmate argued that the independent chairperson erred in that he permitted CSC officials to "split" their case (calling further officers to testify after the inmate had given his testimony), thereby violating the inmate's section 7 Charter rights, paragraph 19 of CD 580, and the general rule of law and practice governing the procedures followed in civil and criminal trials. The Federal Court dismissed the application, as it saw no breach of the duty to act fairly by the independent chairperson. The inmate was present, he was given full opportunity to hear evidence, to give his version of the case, to cross-examine the witnesses, and he even was offered the possibility of an adjournment or to call other witnesses, which he declined. The mere fact that the chairperson, faced with two contradictory versions, decided to further investigate and hear more eyewitnesses to the event, did not mean that he failed to comply with procedural fairness.

Mooring v. Canada (Independent Chairperson for Prison Disciplinary Hearings at Kent Institution) - (1989), 29 F.T.R. 193, [1990] 1 F.C. 777, [1989] F.C.J. No.1112 (F.C.T.D.)

- While a Commissioner's Directive required that all witnesses against an accused inmate be heard first prior to the inmate's election to testify himself, the Court did not agree with the inmate's submission that under no circumstances may additional evidence be called after the inmate has given his evidence. On the facts of this case, the inmate elected to give evidence and in doing so raised an unanticipated defence. Thus, it was only after the inmate gave evidence that the chairperson was aware of his defence. Under these circumstances the chairperson faced a conflict in the evidence and properly elected to have the second officer give evidence in reply or rebuttal, so that the truth of the inmate's version of the incident could be determined. As such, there was no improper "splitting" of the prosecution's case.

Trudel v. Warkworth Institution - (1989), 27 F.T.R. 94, [1989] F.C.J. No.309 (F.C.T.D.)

- An inmate was charged and convicted of several counts of the disciplinary offence of possession of contraband. The applicant inmate was searched and found to be in possession of a Timex wristwatch that belonged to an inmate with whom the applicant was double bunked. According to the applicant he was wearing the watch with his cellmate's permission. The next day, a cell search was conducted that resulted in the laying of three more institutional charges that were dealt with as intermediary offences. In his application for judicial review, the applicant took issue with the chairperson's refusal of his request to call his cellmate as a witness. The Federal Court dismissed the application. The Court stressed that if the cellmate would have given evidence confirming the applicant's case, then it certainly may have given more weight to the applicant's case. However, it was clear that the cellmate only claimed the watch and none of the other contraband. The chairperson has to make a judgment call based on the circumstances. The calling of the witness would delay the trying of the issue and require the transfer of the cellmate from another prison where he had been moved. The chairperson ruled that that was unnecessary, and the Federal Court was of the view that the chairperson's conclusion was reasonable and not unfair.

Morin v. Port-Cartier Institution - (1991), 42 F.T.R. 155, [1991] F.C.J. No.158 (F.C.T.D.)

- An inmate charged with a disciplinary offence indicated to the independent chairperson that he wished to call seven witnesses at his hearing. The chairperson refused this request and informed the inmate that he would be prepared to hear two or three witnesses. The Federal Court allowed the inmate's application for judicial review challenging the chairperson's decision. The Federal Court was satisfied that the chairperson in the present case could not conduct a full and fair inquiry unless he first found out from the inmate who the inmate wanted to call as witnesses, why the applicant wanted to call these individuals as witnesses and then decide if these witnesses could credibly give the evidence the inmate suggests they would give.

Whyte v. Canada (Attorney General) - (1999), 177 F.T.R. 260, 29 C.R. (5th) 164, [1999] F.C.J. No.1642 (F.C.T.D.)

- An inmate was charged with two disciplinary offenses relating to his alleged participation in activities likely to jeopardize the security of the institution. On a day when he was the "inmate food server" on his range, a disturbance occurred in which one or more inmates (including the applicant) allegedly yelled at the food stewards, resulting in a severe riot. When the applicant inmate appeared before the disciplinary court to face charges arising out of his alleged participation in the riot, he requested the names of the food stewards on duty at the time. The independent chairperson denied that request and convicted the inmate. The Federal Court allowed the inmate's application for judicial review, concluding that the independent chairperson breached the duty of fairness by failing to require an officer of the institution to provide the inmate with the names of the food stewards who were on duty at the relevant time. A new hearing was ordered before a different chairperson.

Blaquiere v. Matsqui Institution - (1983), 6 C.C.C. (3d) 293, [1983] F.C.J. No.544 (F.C.T.D.)

- Where an inmate was charged and convicted of a disciplinary offence, the chairperson dispensed the sentence without inviting or giving the inmate an opportunity to make submissions as to sentence. The Federal Court was of the opinion that a breach of the duty to act fairly occurred in respect of sentence. The inmate should have been given an opportunity to make submissions as to punishment. The Penitentiary Act and the Penitentiary Service Regulations were silent on this point. However, when the statute and the regulations are read as a whole, particularly in respect of disciplinary proceedings, a right to make submissions before sentence is passed could be found in the scheme of the legislation. Moreover, the right to make submissions before the imposition of punishment or penalties seemed to be a basic point of procedural entitlement in our system of law and legal procedure. The Court saw no reason, in principle, why it should not apply to penitentiary disciplinary hearings.

Bull v. Prison for Women - (1986), 7 F.T.R. 278, 25 Admin.L.R. 229, [1986] F.C.J. No.783 (F.C.T.D.)

- The Court was satisfied that there was nothing inappropriate in having the inmate and her counsel absent from the hearing room while discussions took place between the chairperson and the two correctional officers concerning the appropriate punishment to be imposed in sentence. However, once the inmate and her counsel returned to the hearing room and were advised of the factors on which the chairperson was relying in making her decision as to sentence, the duty of fairness incumbent on the chairperson required that the inmate be afforded the opportunity to make a reply or to rebut any of the information which influenced or persuaded the chairperson. The Court held that where, in this case, certain information was relied on to conclude that solitary confinement was an appropriate punishment, the inmate was entitled to be informed of all the facts considered to be relevant and to refute the information upon which the chairperson relied.

Armstrong v. Warkworth Institution - (1989), 28 F.T.R. 89, [1989] F.C.J. No.403 (F.C.T.D.)

- A disciplinary hearing can and should be considered as having two parts. The first part of the hearing is to determine the guilt or innocence of the inmate, the second deals only with the issue of punishment. The Federal Court held that the failure of the chairperson to give the inmate an opportunity to make submissions as to his punishment before it was imposed and the failure to inform on the consultation in his absence was a breach of duty on the part of the chairperson to act fairly.

McWhinney v. Canada (Commissioner of Corrections) - (1996), 1 C.R. (5th) 116, 117 F.T.R. 81, [1996] F.C.J. No.1051 (F.C.T.D.)

- At a disciplinary hearing, the inmate pleaded "mistake of fact" in his defence. The independent chairperson decided that mistake of fact was not a defence that was open on the charge involved and found the inmate guilty. The Federal Court allowed the inmate's application and quashed the disciplinary court's decision. The Court held that while there appeared to be no absolute right to be able to present full answer and defence in inmate disciplinary hearings, there is a duty to examine both sides of the question. There was no reason why a mistake of fact could not be a valid defence to the charge facing the inmate in this case. In fact, it was the inmate's only defence, and to deprive him of the opportunity to give it amounted to a denying of a full and fair hearing.

Pellerin v. Canada (Attorney General) - (1997), 141 F.T.R. 18, [1997] F.C.J. No.1378 (F.C.T.D.)

- The Federal Court allowed an application for judicial review and ordered that the inmate be given a new hearing before a different chairperson. The Court found that the independent chairperson did not grant the inmate the possibility of making his own submissions as to sanction, contrary to Paragraph 31(1)(b) of the Regulations. The Court further stipulated that this right is not subject to challenge, not only because it is explicitly recognized by law but also because fundamental justice requires that one listen to the representations of an inmate who has just served 14 days in administrative segregation and to whom one wishes to add a further 15 days, making a total of 29 days, when one knows that the maximum prescribed by the Act is 30 days' segregation.

Belmont v. Millhaven Institution - (1984), 41 C.R. (3d) 91, 9 Admin.L.R. 181, [1984] F.C.J. No.624 (F.C.T.D.)

- The Federal Court asserted that it is clearly established that certiorari will issue to quash a decision of an inferior tribunal if that decision is made in the absence of any evidence to support it. It is also clear that the evidence must have some probative force that would tend to show the existence or the non-existence of the facts in issue. In this case, the Court held that it was very difficult to find a link between the evidence adduced before the disciplinary court and the offence for which the inmate was charged. In other words, the inmate was charged with and convicted of having planned and done something deliberately for the very purpose of prejudicing the good order and discipline of the institution. There was no evidence of any such act carried out by the inmate.

Lariviere v. Millhaven Institution - (1986), 7 F.T.R. 289, [1986] F.C.J. No.644 (F.C.T.D.)

- The Federal Court dismissed an application for judicial review of a decision of a disciplinary board to convict an inmate for the serious disciplinary offence of possession of contraband, namely two gallons of "home brew." The Court held that it was not necessary that there be true expert evidence before the tribunal to show the contraband was, in fact and law, "home brew." The chairperson was entitled to consider the evidence and opinion of all the lay witnesses. The chairperson, in this case, apparently accepted the lay opinion evidence of a correctional officer over the evidence of the inmate, and the opinions of the other two witnesses who were also inmates. A tribunal is entitled, in proper cases, to accept and act on non-expert evidence. The circumstances here, in the Court's view, warranted the reception of, and giving effect to, non-expert opinion evidence.

Lafrenière v. Ste-Anne-des-Plaines Institution - [1988] F.C.J. No.1162 (F.C.T.D.)

- The Federal Court allowed an application for judicial review and set aside a disciplinary offence conviction for the possession of contraband where the conviction resulted on the basis of the discovery by correctional officers, after a search of the inmate's locker, of a pack of cigarettes containing "a piece of brown substance resembling hashish." The Court held that a reading of the transcript of the disciplinary hearing convinced it that at no time was the nature of the brown substance resembling hashish established. It is elementary that in the case of such charges evidence must be produced of the nature of the substance that the prisoner is accused of unlawfully having in his possession. In this case, such proof was not made.

Lee v. Kent Institution Disciplinary Court (Independent Chairperson) - (1993), 70 F.T.R. 155, [1993] F.C.J. No.1136 (F.C.T.D.)

- The Federal Court asserted that disciplinary courts were administrative, not judicial or quasi-judicial, proceedings. There was no particular procedure or rules of evidence applicable to such hearings. Such hearings were conducted as inquisitorial and not adversarial proceedings and that in general the only procedural requirement was that the disciplinary court conduct itself with fairness. The Federal Court claimed that it was prepared to assume, without deciding, that for the chairperson to convict the inmate he would have to be satisfied of guilt beyond a reasonable doubt. The Federal Court further assumed that possession of contraband is not proven unless the disciplinary court is satisfied that the inmate knowingly had possession of something that was found in his quarters. In this case, while the chairperson should have taken more care in summarizing the evidence and in stating its conclusions, as the whole hearing process seemed to have been much to casual, the Federal Court found no reviewable error. One could interpret the chairperson's statements in a reasonable manner as conveying that he did not believe on the basis of several factors the inmate's explanation that he did not know of the presence of the knife in his cell. Further, the chairperson had before him evidence upon which he could find as he did and the Federal Court saw nothing in his finding of fact that can be said to be perverse or capricious or made without regard for the material before him.

Pickard v. Mountain Institution Disciplinary Court - (1994), 75 F.T.R. 147, 30 C.R. (4th) 399, [1994] F.C.J. No.438 (F.C.T.D.)

- An inmate was convicted by a disciplinary court of being in possession of unauthorized items, namely, a quantity of tobacco, pursuant to section 40(j) of the CCRA. The question of whether the tobacco was purchased at the prison canteen or not was a central issue at the hearing, and the only evidence on this point was hearsay evidence provided by a correctional officer to the effect that the inmate had not purchased the tobacco at the canteen. The inmate challenged the conviction and the Federal Court allowed the application for judicial review, referring the matter back for a re-hearing. As the question of whether the inmate had or had not purchased the tobacco from the canteen was central to the case against him, fairness required that the chairperson insist on having firsthand evidence on this question. If that evidence depended in part on records kept in the regular course of business in the canteen, then someone who could identify them and answer questions on them should have produced those records. While it was not central to the conviction, the Court also found disturbing, near the end of the transcript of the hearing, a number of interventions by someone described only as "unidentified speaker." This person was offering information and opinions that were apparently designed to persuade the chairperson that it was unlikely if not impossible for the inmate to have purchased this much tobacco at the canteen.

Mineau v. Port-Cartier Penitentiary - (1997), 129 F.T.R. 189, [1997] F.C.J. No.459 (F.C.T.D.) (French version)

- The Federal Court set aside a disciplinary court conviction where an inmate was charged, pursuant to section 40(i) of the CCRA, with the possession of an intoxicant. A correctional officer, who was the only witness who testified at the hearing, identified the substance found in the inmate's cell as bootleg alcohol, based mainly on the texture and odour given off by the product, his experience in this area and his personal knowledge of alcohol. The Federal Court held that it is not sufficient for a correctional officer to testify as to the texture and the odour given off by the product in question in order to establish that the product had the potential to impair or alter judgment, behaviour or the capacity to recognize reality, and so on, on the part of the person in possession of it. The officer's experience in this area and personal knowledge of alcohol could not substitute for scientific, technical or specialized testimony, which would at least have indicated the level of alcohol in the container discovered in the inmate's cell.

Ryan v. William Head Institution - [1997] F.C.J. No.1290 (F.C.T.D.) (French version)

- Three inmates who lived together in a housing unit were charged and convicted of possession of contraband pursuant to subsection 40(i) of the CCRA after a correctional officer found home brew in an ice cream container in their freezer. In challenging the disciplinary conviction, the inmates argued that the authorities failed to discharge the burden of proof set out in subsection 43(3) of the CCRA. The Federal Court dismissed the application. The Federal Court noted that the chairperson of the disciplinary court demonstrated, in his comments during the hearing, that he was well aware that he was dealing with a case in which the issue was constructive possession. Control and knowledge by the accused had to be proven. In this case, the chairperson had before him evidence that: 1) the inmates lived in a house that was out of bounds to everyone but the three inmates; 2 ) the brew was in open view in the freezer, an area used on an everyday basis for food and drink; 3) the premises had smelled of brew approximately 30 hours before the brew was found; 4) all occupants of the unit had been up late the previous night and had been louder than usual. The chairperson also commented that as occupants of the house the inmates lived in a closely associated manner. The Court held that the inference the chairperson drew about the inmates' knowledge was reasonably open to him on the facts. The chairperson understood and applied the correct law.

Bailey v. Canada (Attorney General) - [2001] F.C.J. No.1307, 2001 FCT 935 (F.C.T.D.)

- The Court held that it is apparent from subsection 43(3) that the burden of proof that applies at the disciplinary hearings provided for in the Act is the burden of proof in criminal matters. Moreover, not only must the inmate be guilty beyond a reasonable doubt, the burden is on the Crown to prove guilt. In this case, the CSC acknowledged that there was no direct evidence of possession on the part of the applicant. They argued that there was circumstantial evidence of such possession. It is not denied that the inmate had the opportunity to commit the act with which he was charged. The Court held, however, that the evidence submitted to prove his guilt was deficient.

Durie v. Canada (Attorney General) - (2001), 201 F.T.R. 8, 2001 FCT 22, [2001] F.C.J. No.169 (F.C.T.D.)

- The Federal Court 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.

Lariviere v. Millhaven Institution - (1986), 7 F.T.R. 289, [1986] F.C.J. No.644 (F.C.T.D.)

- The Federal Court dismissed an application for judicial review of a decision of a disciplinary board to convict an inmate for the serious disciplinary offence of possession of contraband, namely two gallons of "home brew." The Court held that the materials before it did not disclose, one way or the other, whether the chairperson orally indicated he preferred the evidence given by a correctional officer to the evidence given by the inmate and two other witnesses. He may, for all that is known, have said nothing. Even if the latter were the case, it was not essential the chairperson should give reasons, or indicate, why he preferred and accepted the officer's evidence that the contraband was "home brew." This disciplinary tribunal is not a court in the criminal law sense. It is not bound by all the ordinary rules of evidence.

Picton v. Edmonton Institution - (1989), 30 F.T.R. 18, [1989] F.C.J. No.630 (F.C.T.D.)

- An inmate was convicted of a disciplinary offence and applied for certiorari to quash the decision on the grounds that the disciplinary court failed to make a transcript of the hearing. The Federal Court dismissed the application. The Court held that the absence of the transcript is not in and of itself enough to establish the relief of certiorari. In this case, the only grievance raised by the inmate in his sworn statement was that he disagreed with the decision. There was no allegation of a reviewable error during the proceedings, nor was there an allegation of a denial of natural justice to the inmate. The absence of the record alone is not enough to establish either one.

Laflamme v. Canada (Correctional Service) - (1998), 154 F.T.R. 178, [1998] F.C.J. No.1029 (F.C.T.D.)

- An inmate was convicted of a disciplinary offence where both the charge and the disciplinary court's decision appeared on the notification of charge. It was unclear from that document what offence the inmate was convicted of as the notification simply described the charge as possession of stolen property, but stated that the charge was brought under section 40(i) of the CCRA, which dealt with possession of contraband. Consequently, the Federal Court found that the inmate did not appear to be treated fairly as it could not be ascertained from that evidence which of the offences referred to in the notification is "the disciplinary offence in question" for the purposes of subsection 43(3) of the Act. Furthermore, section 33 of the Regulations requires that the hearing of the inmate's disciplinary offence be recorded. Due to a mechanical failure the hearing in this case could not be recorded properly and was inaudible. Given that the inmate had always maintained that he was never in possession of the item in question, the fact that there was no audible recording also prevented the Federal Court from properly reviewing the administrative tribunal's assessment of evidence and findings of fact. Therefore, in the circumstances, the Court was of the view that there was a serious possibility of an error regarding which the lack of recording deprived the inmate of the grounds for applying for judicial review to which he was entitled by virtue of his rights to natural justice and procedural fairness, and under the Act. The application was allowed, the decision of the disciplinary court set aside and the matter was referred back for a rehearing.

Bernier v. Kent Institution - (1986), 7 F.T.R. 229, additional reasons at (1986), 9 F.T.R. 123, [1986] F.C.J. No.1003 (F.C.T.D.)

- The Federal Court 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, the Federal Court 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.

Gosselin v. Matsqui Institution - (1987), 21 F.T.R. 129, [1987] F.C.J. No.340 (F.C.T.D.)

- An inmate was charged and convicted, pursuant to section 39(k) of the Penitentiary Service Regulations, of the disciplinary offense of doing an act calculated to prejudice the discipline or good order of the institution. In challenging the conviction by way of judicial review, the inmate contended that the chairperson acted without jurisdiction, as there was an absence of any evidence to support the charge. The Federal Court agreed, allowed the application and quashed the conviction. The Court held that the evidence established only that the inmate entered a cell in which there were two cups of "brew." There was no evidence to suggest that he or anyone else in the cell was drinking the brew while he was there. The evidence varied as to the amount of time he had been in the cell prior to the arrival of the guards but the longest estimate was perhaps five minutes. The Court was unable to see how the evidence in support of the charge could demonstrate that the inmate was doing something "deliberately for the very purpose of prejudicing the good order and discipline of the Institution." It did not even demonstrate that what he did was in reckless disregard for the good order and discipline of the institution. He was simply present where, arguably, others were committing some offence. In Howard v. Presiding Officer, Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 F.C. 642 (F.C.A.), the Court of Appeal remarked on the vagueness of any charge laid under paragraph 39(k) of the Regulations and indicated that such vagueness warranted greater care in ensuring that a person accused under that paragraph is enabled to make his defence. For the same reason, this vagueness required that the evidence demonstrate the necessary intent, or perhaps a reckless disregard, with respect to prejudicing the discipline or good order of the institution. No such evidence was presented in this case.

Clark v. Matsqui Institution - (1988), 21 F.T.R. 158, [1988] F.C.J. No.650 (F.C.T.D.)

- An inmate was found guilty of the charge of assault by a disciplinary court, pursuant to section 39(b) of the Penitentiary Service Regulations. The Federal Court allowed the application and quashed the conviction. In the Court's mind, the ordinary lay meaning of assault is an attack of some kind, intentionally, by one person on another. Merely protecting oneself or defending oneself by retaliatory measures does not amount to assault by one inmate on another person. The chairperson in this case equated participation in a fight as the committing of assault. On the evidence, the participation by the inmate applicant was to protect him-self. Accordingly, there was an error in law in the decision reached. The mere fact that the inmate applicant was in a fight did not mean he was guilty of assault as stated by the chairperson. To put it another way, the evidence before the disciplinary court could not support the conviction for a disciplinary offence based on paragraph 39(b).

Buyens v. William Head Institution - (1992), 12 C.R. (4th) 258, 52 F.T.R. 99, [1992] F.C.J. No.137 (F.C.T.D.)

- An inmate commented to a correctional officer conducting a search that another officer, who was not present during the search, had "set him up" after contraband was found in his cell. The inmate was charged and convicted of a disciplinary offence contrary to section 39(g) of the Penitentiary Service Regulations which stated that every inmate is guilty of a disciplinary offence who "behaves toward any other person, by his actions, language of writing, in an indecent, disrespectful, threatening or defamatory manner." The Federal Court allowed the application and quashed the conviction. The inmate's remark was far from an unequivocal threat or indecent, disrespectful or defamatory in nature, thus the chairperson erred in law by not according the inmate the benefit of the doubt. Moreover, the chairperson also erred in that the inmate could hardly have behaved "toward" the officer in question "by language…in a disrespectful manner" if that officer was not present when the comment was made.

Crawford v. William Head Penitentiary - (1992), 56 F.T.R. 32, [1992] 3 F.C. 539 (F.C.T.D.)

- Two inmates were directed by order of a penitentiary officer to submit to being photographed by means of computerized photographic identification equipment, known as the image capture system. After refusing the order, both inmates were charged with a disciplinary offence contrary to section 39(a) of the Penitentiary Service Regulations, for failure to obey a lawful order. Both being found guilty by the disciplinary court, each was ordered to pay a $10 fine. An application for judicial review of the disciplinary court decision was dismissed. The Federal Court found that section 2 of the Identification of Criminals Act and an order-in-council pursuant to that Act authorized the use of the system. Furthermore, the use of such a system did not violate the inmates' section 7 Charter rights.

Barnaby v. Donnacona Correctional Institution - (1995), 105 F.T.R. 64, [1995] F.C.J. No.1541 (F.C.T.D.)

- Curial respect for an administrative tribunal's disciplinary decisions in a correctional environment is as high as for any other tribunal. 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 the Court'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.

Penner v. Stony Mountain Institution Inmate Disciplinary Court - (1995), 101 F.T.R. 148, [1995] F.C.J. No.1218 (F.C.T.D.)

- An inmate was observed by a correctional officer to be staggering and weaving down a corridor in the institution. The correctional officer proceeded to obtain prior authorization, pursuant to section 54(a) of the CCRA, in order to demand that the inmate submit to urinalysis. That authorization having been obtained, the demand was made of the inmate almost 24 hours after the observation. The inmate declined to give a sample and was subsequently found guilty in disciplinary court of refusing to provide a urine sample when demanded pursuant to section 54 of the CCRA. The inmate argued that the delay between the time when his suspect conduct was observed and the time a urine sample was demanded seriously prejudiced the inmate through infringement of his capacity to provide a credible and verifiable explanation for his conduct and through erosion of his capacity to prepare a defence against a disciplinary charge. The Federal Court was not persuaded by the inmate's argument and dismissed the application. While a lengthy delay between establishment of a reasonable belief and a demand that an inmate submit to urinalysis might truly be prejudicial to the inmate and a breach of fairness, the Court was not satisfied that a delay of close to 24 hours produced such a result. Further, by failing to take of advantage of the opportunity to make representations, given to him at the time of the demand for a sample, the inmate exposed himself to the risk of a conviction on a disciplinary charge.

Neiman v. Stony Mountain Institution, Institution Disciplinary Court - (1996), 120 F.T.R. 76, [1996] F.C.J. No.1414 (F.C.T.D.)

- As a result of being convicted of taking an intoxicant into his body under section 40(k) of the CCRA, an inmate was "required to provide a sample each month until three consecutive negative monthly samples have been provided." These were taken from him on December 28, 1994, on January 4, 1995, and on February 7, 1995. The urine sample that was taken on January 4, 1995 tested positive. The inmate submitted that the taking of the urine samples was not in accordance with section 71 of the Regulations, which mandated that the testing be done at 28 to 30 day intervals. The Federal Court did not agree with the inmate's submissions and dismissed the application. The Court held that had it been intended that the testing occur at 28 to 30 day intervals, the regulation would have been precisely drafted in those terms. Moreover, the French text was taken by the Court to be clearer than the English version. It provides that testing shall be done every month until three consecutive positive test results are obtained. It supports the position that the exact interval of the number of days between tests is not important. Lastly, the Court found the CSC's argument, that it is important in administering such a testing program that there be scope for random testing, a relevant consideration. Such would not be available if an inmate knew that after the first test he would not be retested for another 28 to 30 days.

Trunzo v. Stony Mountain Penitentiary Disciplinary Court - (1996), 124 F.T.R.101, [1996] F.C.J. No.1500 (F.C.T.D.)

- An inmate was convicted and fined $35 by a disciplinary court for failing and refusing to provide a urine sample when demanded pursuant to section 54(a) of the CCRA. The inmate had provided only 10 millilitres of urine rather then the minimum 40 millilitres required. The inmate challenged the disciplinary court's decision, arguing that there was no requirement in the Regulations under the CCRA that a 40 millilitre sample must be given. The Federal Court did not agree, dismissed the application and awarded costs of $300 against the inmate. The Court held that the definition of "approved procedure" in section 60 of the Regulations incorporated by reference the procedures set out in the Commissioner's Directives. The CDs incorporate by reference, to the extent set out in paragraph 24 of CD 572, the Guidelines for Urinalysis Program in Institutions and in the Community. Section 36 of the Guidelines sets forth the "approximately 40 millilitres" requirement. While in themselves they may not be law, when read in conjunction with the definition of "approved procedure" in section 60 of the Regulations, it was apparent that the CDs and Guidelines have been incorporated by reference into the Regulations and are, to this extent, law.

Beaudoin v. William Head Institution - (1997), 139 F.T.R. 133, [1997] F.C.J. No.1663 (F.C.T.D.)

- The Federal Court allowed the application and set aside the disciplinary conviction. The Federal Court expressed the view that on the facts of this matter, at least in respect of the applicant B, there was simply no evidence before the chairperson on which to conclude that the officer who demanded the urine sample from B had "reasonable grounds" to believe, as required by section 54(a), that B had ingested an intoxicant. The only evidence before the chairperson, that being of a strong odour of hashish in the living unit in question, was that someone had ingested an intoxicant. Six inmates lived in the unit of which B was one. There was no evidence to indicate that other inmates in the institution had not been or could not have been present in the living unit in the minutes immediately preceding the time when the officer detected the odour of hashish. Several persons may have been responsible. Further, one of the applicants suggested to the officer that the odour in question was not, in fact, hashish but a cooking odour resulting from the meal that the residents had cooked themselves earlier in the evening. In the end, the Federal Court concluded that the chairperson committed a reviewable error in convicting B in that he had no evidence before him on which to conclude that the officer who demanded that B submit to urinalysis had reasonable grounds to believe that he had ingested an intoxicant.

McLarty v. Canada - (1997), 133 F.T.R. 11, [1997] F.C.J. No.808 (F.C.T.D.)

- The chairperson had to be satisfied that guilt was the only reasonable inference to be drawn from the facts. The Court was of the view that the chairperson could not reasonably be satisfied in this case. The chairperson was entitled to disbelieve the inmate's explanation but he could not infer guilt on sheer speculation.

Simoneau v. Canada (Correctional Service) - (1998), 40 W.C.B. (2d) 17, [1998] F.C.J. No.1078 (F.C.T.D.), 1998 CanLII 8011 (F.C.)

- An inmate was convicted of the disciplinary offence of taking an intoxicant into his body as set out in paragraph 40(k) of the CCRA, and consequently was required pursuant to section 71 of the Regulations to provide a urine sample every three months until three consecutive negative samples were given. On November 26, 1996, the inmate provided the first sample required under section 71 of the Regulations and the result was negative. On December 17, 1996, the inmate refused to provide a second sample and was later convicted under paragraph 40(a) of the Act for the disciplinary offence of disobeying a justifiable order of a staff member to provide a urine sample. On January 31, 1997, the inmate provided a sample for which the result was positive and as a result, on February 19, 1997, the inmate was convicted for taking an intoxicant under paragraph 40(k) of the Act. On February 24th, the correctional officer was informed of the February 19 conviction. That same day, the inmate provided a negative sample. The inmate later provided negative samples on April 24, 1997, and May 16, 1997. On June 17, 1997, a sample was requested and refused. On August 13, 1997, the inmate was charged and convicted under paragraph 40(a) of the Act for the June 17, 1997 refusal to provide a sample. The inmate applied for judicial review of the August 13 conviction. The Federal Court allowed the application and set aside the conviction. The Court noted that only after providing a urine sample on February 24, 1997 was the inmate notified by the corrections officer that he would be required to provide the monthly samples, pursuant to section 71 of the Regulations, for the conviction of February 19, 1997 conviction. Yet, the gist of all this was that the inmate provided three consecutive negative samples following the February 19, 1997 conviction, but the officer did not want to include the February 24 sample for the purposes of the February 19 conviction. The Court held that the inmate was not responsible for the fact that the corrections officer was not informed until February 24 that the chairperson had given a decision on February 19. The fact that the officer did not ask the inmate to provide a urine sample during the month of March 1997 does not depend on the inmate. The inmate provided three consecutive samples, on February 24, April 24, and May 16, as required, and all turned out to be negative. In these very specific circumstances, the Court concluded that it would be unfair and unreasonable to hold that the inmate failed to comply with section 71 of the Regulations.

Grenier c. Comité de discipline du pénitencier de Donnacona - (1999), 180 F.T.R. 37, [1999] F.C.J. No.1538 (F.C.T.D.)

- An inmate was on his way to his class wearing his slippers. A correctional officer asked him to remove them and put on running shoes or shoes. When the inmate refused he was ordered back to his cell. In frustration, the inmate tossed his sheaf of papers, held together by a Duo-tang binder, in the vicinity of the officer. The inmate was then charged and convicted of a disciplinary offence under section 40(m) of the CCRA, which provides that an inmate commits a disciplinary offense where he or she creates or participates in a disturbance, or any other activity that is likely to jeopardize the security of the penitentiary. The Federal Court allowed the inmate's application for judicial review and quashed the decision of the disciplinary board. The Federal Court held that while the inmate's actions were regrettable, there was no evidence to show that this action jeopardized the security of the penitentiary. The decision to convict was, therefore, patently unreasonable.

Canada (Attorney General) v. Deas - (2001), 2001 FCT 926, [2001] F.C.J. No.1302 (F.C.T.D.)

- The Court found that the independent chairperson erred by acquitting the inmate of the charge laid against him on the sole ground that some of the information appearing on the Inmate Offence Report and Notification of Charge had not been translated in English. The Court was of the view that despite the fact that some of the information on the report was not translated, the inmate was fully made aware of what the allegations were and the nature of the evidence against him and was afforded a reasonable opportunity to respond to the evidence and to give his version of the matter. Further, the inmate or his legal counsel never complained or raised the issue upon signing the Inmate Offence Report or during the disciplinary hearing.

Royer v. Canada (Attorney General) - [2001] F.C.J. No.1869, 2001 CFPI 1359 (F.C.T.D.) (French version)

- The question of the interpretation to be given the phrase "each month" contained in section 71 of the Regulations was decided by the Federal Court in Neiman v. Stoney Mountain Institution, [1996] F.C.J. No.1414 (F.C.T.D.). The Court concluded that this phrase meant that the urinalysis requests should be made in consecutive months but did not necessarily imply that the interval between each request should be 30 days. The Court held that Section 71 of the Regulations is no way ultra vires the Act. Further, section 71 and sections 69 to 72 of the Regulations fall under the subheading "Consequences of positive test results" which itself comes under the more general heading "Urinalysis Testing," thus confirming its legislative derivation. Nothing in the Act specifically prohibits the adoption of such a regulation, not even section 54, which in no way states that a urinalysis request cannot be authorized or required except in the situations stated in the section. Furthermore, the urinalysis requested under section 71 of the Regulations are an administrative measure available to the prison authorities, who can use it to counter drug use by inmates in penitentiaries, not a disciplinary penalty. The disciplinary penalties that may be imposed on an inmate found guilty of a disciplinary offence are those set out in section 44(1)of the Act. Consequently, section 71 of the Regulations is entirely consistent with the Act and its enabling provision and so allowed the prison authorities to ask the inmate to submit to urinalysis. However, the Court also stipulated that the disciplinary penalties which may be imposed on an inmate found guilty of a disciplinary offence are those set out in section 44(1) of the Act, and consequently section 71 of the Regulations does not authorize the prison authorities to impose any further punishment or disciplinary penalty.

Davidson v. Prison for Women - (1981), 61 C.C.C. (2d) 521, [1981] F.C.J. No.602 (F.C.T.D.)

- In dispute in this case was section 12 of Annex A to the Commissioner's Directive 213, which categorically dictated the response to a request that an inmate be represented by counsel shall be that "he is not entitled to counsel and that the hearing will proceed without the accused person being represented." The inmate challenged by way of judicial review a disciplinary offence conviction, where the presiding officer of the disciplinary court refused her request to be represented by counsel on the basis of the above CD. The Federal Court allowed the application and quashed the conviction, holding that paragraph 12(a) of CD 213 offended against a fundamental principle of natural justice in that it purported not only to fetter the discretion of the Disciplinary Court but to dictate to that Court how its discretion should be exercised. It was therefore reprehensible and invalid. In other words, not only did the presiding officer fail to exercise an independent discretion the CD purports to dictate how that discretion shall be exercised and if that dictation was followed by her, as it was, then she was not an independent tribunal. It is the right of a person to be heard by a deciding authority unbiased in the legal sense, which does not include a tribunal subject to the influence of an external authority, and in this particular instance an authority which improperly directs the deciding authority how her discretion, which is hers alone to exercise, shall be exercised.

Martineau and Butters v. Matsqui Institution Inmate Disciplinary Board - (1977), 33 C.C.C. (2d) 366, 74 D.L.R. (3d) 1, [1978] 1 S.C.R. 118, 14 N.R. 285 (S.C.C.)

- The Supreme Court had no doubt that Regulations are law, yet it did not think that the same could be said of the Commissioner's Directives. It is not in any legislative capacity that the Commissioner is authorized to issue directives but in his administrative capacity. It is important to distinguish between duties imposed on public employees by statutes or regulations having the force of law and obligations prescribed by virtue of their condition of public employees. The members of a disciplinary board are not high public officers but ordinarily civil servants. The Commissioner's Directives are no more than directions as to the manner of carrying out their duties in the administration of the institution where they are employed.

Minott v. Stony Mountain Penitentiary - [1982] 1 F.C. 322 (F.C.T.D.)

- An inmate applied for an order of prohibition to prevent the continuation of a disciplinary court hearing against him. A request for permission to have counsel represent him was denied on the basis of s12a of the Commissioner's Directive 213, which prohibited inmates from being represented by counsel at disciplinary hearings. The Federal Court allowed the motion. In arriving at the decision to deny the inmate counsel, the Presiding Officer of the disciplinary court relied on, and placed undue emphasis on the Commissioner's Directive without giving proper consideration to several sections of the Penitentiary Service Regulations that conflicted with s12. Section 12 of the Directive, which in effect, was no more than an administrative decision, was ineffective as being overridden by provisions of the Regulations. The Court held that s12a of CD 213 cannot be considered as "law," and since the Regulations are "law," the Regulations must govern and override the provisions of s12a of CD 213. Accordingly, provision 12a was ultra vires in so far as a hearing before a disciplinary court was concerned.

Davidson v. Prison for Women - (1981), 61 C.C.C. (2d) 521, [1981] F.C.J. No.602 (F.C.T.D.)

- Commissioner's Directives, which were rules made by the Commissioner under the authority of section 29(3) of the Penitentiary Act, are not to be considered "law" unlike the Penitentiary Act itself and the Penitentiary Service Regulations. In dispute in this case was section 12 of Annex A to the Commissioner's Directive 213, which categorically dictated the response to a request that an inmate be represented by counsel shall be that "he is not entitled to counsel and that the hearing will proceed without the accused person being represented." The Federal Court held that paragraph 12(a) of CD 213 offended against a fundamental principle of natural justice in that it purported not only to fetter the discretion of the Disciplinary Court but to dictate to that Court how its discretion should be exercised. In the Federal Court's view, that directive was therefore reprehensible and invalid.

Belmont v. Millhaven Institution - (1984), 41 C.R. (3d) 91, 9 Admin.L.R. 181, [1984] F.C.J. No.624 (F.C.T.D.)

- The Court held that the Commissioner's Directive, in play in this case, imposing criminal law standards does not have the force of law, but it must be considered so as to determine whether or not there has been a breach of the duty of any tribunal to act fairly. The high standard set out in the Commissioner's Directive is an indication of the views of the authorities of the penitentiary as to the degree of procedural protection to be extended to the inmates.

Lariviere v. Millhaven Institution - (1986), 7 F.T.R. 289, [1986] F.C.J. No.644 (F.C.T.D.)

- The inmate applicant contended that s660(1) of the Criminal Code gave the Commissioner's Directive, as to the recording of proceedings, the force of law. It was further said the two well-known Martineau decisions must be reconsidered because s660(1) was not raised. The Federal Court was of the opinion that s660(1) does not impugn, in any way, the Martineau decisions: that the Commissioner's Directives do not have the force of law. The Criminal Code provision relied on merely provides, as it explicitly says, the prisoner's sentence will be served in accordance with the regulations and rules governing the particular institution. That is directed to rules governing the conduct of prisoners, not any administrative tribunal procedural rules required of the institution, or in this case, the institution's disciplinary board.

Armstrong v. Warkworth Institution - (1989), 28 F.T.R. 89, [1989] F.C.J. No.403 (F.C.T.D.)

- Counsel for the respondent CSC agreed with the submissions of the inmate applicant that the Commissioner's Directives have been held not to be law but a breach of these Directives is indicative of a breach of the duty to act fairly.

Picton v. Edmonton Institution - (1989), 30 F.T.R. 18, [1989] F.C.J. No.630 (F.C.T.D.)

- An inmate was convicted of a disciplinary offence and applied for certiorari to quash the decision on the grounds that the disciplinary court's failure to make a transcript of the hearing was a breach of the Commissioner's directives. The Federal Court dismissed the application. The Court asserted that while the Commissioner's directives are quite important, and in the conduct of a disciplinary hearing must be observed, they nevertheless do not have the force of law. Citing past case authority, the Court held that the absence of the transcript is not in and of itself enough to establish the relief of certiorari. In this case, the only grievance raised by the inmate in his sworn statement was that he disagreed with the decision. There was no allegation of a reviewable error during the proceedings, nor was there an allegation of a denial of natural justice to the inmate. The absence of the record alone is not enough to establish either one.

Canada (Attorney General) v. Plante - (1995), 103 F.T.R. 161, [1995] F.C.J. No.1509 (F.C.T.D.)

- An inmate was acquitted of a disciplinary offense by the institution's disciplinary court on the grounds that the Inmate Offence Report and Notification of Charge was delivered to him after the expiration of a two-day period set out in the Commissioner's Directive. The Attorney General sought judicial review of the disciplinary court's decision. In allowing the application, the Federal Court found it sufficiently clear on reading the decision that the disciplinary court considered compliance with the two-day limit set out in s15 of Directive 580 to be mandatory, without it having to ask whether in fact the failure to comply with this limit in the specific circumstances of the case had prejudiced the inmate by preventing him from preparing a full answer and defence. In the Court's opinion, by adopting this position the disciplinary court wrongly attributed a legislative effect to the Directive and failed to exercise its jurisdiction. It is well established that the Commissioner's Directives are clearly of an administrative, not a legislative, nature.