CRIMINAL JUSTICE
Evidence
Judicial review of decision of Independent Chairperson of Disciplinary Court at Kent Institution convicting applicant of possession of contraband in form of cell phone—Applicant maximum‑security inmate at Kent Institution—Warden authorized cell search—Applicant occupied cell about one month before cell search conducted—Was double‑bunking with another inmate—Applicant, cell mate removed to gym while cell searched—Officers conducting search found cell phone, cell phone charger—Phone found in garbage can; charger found in medicine cabinet—Both applicant, cell mate charged under Corrections and Conditional Release Act (CCRA), s. 40(i) for possession of contraband—At disciplinary hearing, applicant found guilty of possession of contraband, charged $20—Disputed having knowledge of phone, charger in cell—Cell had two medicine cabinets: one located above toilet, second located behind television— Second always kept closed—Cabinet above toilet used by both inmates but applicant testified never looked inside second cabinet—Chairperson found fact inmate in cell for one month not examining closed medicine cabinet “extremely difficult” to believe—Applicant also testified generally keeping cell unlocked when not inside—Was told by another inmate cell phone left in applicant’s cell before lockdown—Same inmate had allegedly been in applicant’s cell watching TV, using personal phone because better reception in applicant’s cell— Chairperson could not give weight to applicant’s testimony unless applicant divulged inmate’s name—Applicant requested adjournment of hearing to speak to peer— Chairperson denied request noting applicant could have discussed issue of naming inmate with peer, counsel prior to hearing—However, accepted fact applicant left cell unlocked when not inside—Suggested that if applicant continued to do so, applicant had responsibility to regularly search cell to ensure no contraband found—Chairperson found leaving cell unlocked amounted to wilful blindness; stated applicant should have searched cell daily for contraband—Also found applicant lacked credibility when claiming to have no knowledge of phone, charger—Chairperson did not fail to observe procedural fairness or abuse discretion in denying adjournment—Case law clear trial judge having discretion to grant adjournment—Discretion meriting high deference by courts—Even if accepted inmate had no opportunity to talk directly to peer, applicant’s failure to discuss issue with counsel left Chairperson with discretion to decide against adjourning hearing—Refusal to adjourn hearing also consistent with Corrections and Conditional Release Regulations, s. 31(1) which requires inmate be given reasonable opportunity at hearing to call witnesses—Applicant had reasonable opportunity to inform court wished to call unnamed inmate as witness but failed to do so until day of hearing—But Chairperson erred in convicting applicant— Accepted possibility another inmate could have entered applicant’s cell with contraband—Also apparently accepted possibility applicant’s cell mate was only inmate with knowledge, control over phone, charger as applicant’s cell mate also charged with contraband offence—Although applicant had opportunity to possess contraband, did not have exclusive opportunity to do so—Case law suggesting where evidence of opportunity accompanied by other inculpatory evidence, something less than exclusive opportunity may suffice for conviction—Chairperson suggested applicant’s counsel merely speculated applicant’s cell mate could have placed phone, charger in cell—However, applicant’s counsel provided speculation of possibilities which were consistent with evidence—Possible for applicant’s cell mate to have possessed contraband; also possible another inmate placed contraband in cell—Applicant not having exclusive opportunity to possess contraband—Alternate possibilities as to how contraband landed in cell plausible, based on evidence —Therefore, no additional inculpatory evidence apparent that would lead to conclusion beyond reasonable doubt applicant had control or knowledge of contraband—Chairperson also improperly applied rule of wilful blindness—Rule narrow, only found by court where defendant’s knowledge almost certain—Although frequent contraband at Kent Institution, not following that applicant had obligation to search cell daily for contraband—Chairperson’s decision unreasonable—Had evidence been reviewed as whole, would not have been able to find proof beyond reasonable doubt applicant guilty— Chairperson’s finding could not stand on examination under standard of reasonableness or patent unreasonableness—Two clear possible alternatives regarding contraband possession not explicitly rejected—Application allowed—Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 40—Corrections and Conditional Release Regulations, SOR/92‑620, s. 31.
Smith v. Canada (Attorney General) (T‑2264‑04, 2005 FC 1436, Teitelbaum J., order dated 21/10/05, 14 pp.)