T-1440-86
Régis Tremblay, an inmate currently confined in
the Special Handling Unit of the Regional Recep
tion Centre (Applicant)
v.
Presiding Officer of the Disciplinary Tribunal of
the Laval Institution,
and
Marc -André Lafleur, in his capacity as Director
of the Laval Institution,
and
Earned Remission Committee of the Laval
Institution,
and
Rhéal Leblanc, Correctional Service Commission
er (Respondents) *
INDEXED AS: TREMBLAY V. CANADA (PRESIDING OFFICER,
LAVAL INSTITUTION DISCIPLINARY TRIBUNAL)
Trial Division, Rouleau J.—Montréal, February 3;
Ottawa, April 9, 1987.
Penitentiaries — Disciplinary offences — Inmate charged
with having contraband in relation to incident involving armed
aggression against other inmate — Right to representation by
counsel before Disciplinary Tribunal — Penitentiary Service
Regulations, C.R.C., c. 1251, ss. 38 (as am. by SOR/85-640),
39(i) (as am. idem) — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), s. 7.
Constitutional law — Charter of Rights — Life, liberty and
security — Liberty — Right to representation by counsel —
Inmate, charged with possessing contraband in relation to
incident involving armed aggression against other inmate,
denied representation by counsel before Disciplinary Tribunal
— Application of criteria in Howard and subsequent case law:
seriousness of charge and penalty; possibility points of law
involved; inmate's ability to present own case — Canadian
Charter of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), s. 7 — Penitentiary Service Regulations, C.R.C., c.
1251, ss. 38 (as am. by SOR/85-640), 39(i) (as am. idem).
Judicial review — Prerogative writs — Certiorari —
Inmate charged with having contraband in relation to incident
involving armed aggression against other inmate — Denial of
* Editor's note: See also [ 1987] 3 F.C. 91
right to representation by counsel before Disciplinary
Tribunal.
For a summary of the facts of this case and a statement of
the relief sought, see the Editor's Note, infra.
Held, the application for certiorari to set aside the decision
of the Presiding Officer of the Disciplinary Tribunal sentencing
the applicant to thirty days' punitive dissociation should be
allowed.
The main issue is as to whether the Presiding Officer's denial
of the applicant's request for representation by counsel
infringed his constitutionally guaranteed right to liberty. The
applicable law is set out in Howard v. Stony Mountain Institu
tion. After a review of the case law applying and commenting
upon that case, the three Howard criteria most conclusive in
the circumstances of this case were to be applied. 1) The
seriousness of the charge and of the potential penalty: A man
was seriously injured and the applicant was found to be one of
those responsible. The seriousness of the charge is apparent.
And the applicant risks not being granted days of remission by
the Earned Remission Committee because of the charge laid
against him. Again this is serious. 2) Whether any points of law
are likely to arise: A person with legal training would have
wanted to raise a) the question of the delay between the date of
the incident and that of the hearing before the Disciplinary
Tribunal; b) the question of the number of charges resulting
from the same event and c) the defence of autrefois acquit. 3)
The capacity of a particular prisoner to present his own case:
This overlaps the preceding point. Without doubting the appli
cant's intelligence, he might have had difficulty presenting his
views on the above-mentioned points of law.
CASES JUDICIALLY CONSIDERED
APPLIED:
Howard v. Stony Mountain Institution, [1984] 2 F.C.
642; (1985), 57 N.R. 280 (C.A.); Bailey v. Mission
Institution Disciplinary Court (Independent Chairperson)
(1987), 6 F.T.R. 69.
DISTINGUISHED:
Savard v. Edmonton Institution Disciplinary Court (Pre-
siding Member) et al. (1986), 3 F.T.R. 1; Walker v.
Kingston Penitentiary Disciplinary Board (1986), 3
F.T.R. 109; Mitchell v. Crozier, [1986] 1 F.C. 255;
(1986), 1 F.T.R. 138.
REFERRED TO:
Reg. v. Secretary of State for the Home Department, Ex
parte Tarrant, [1984] 2 W.L.R. 613 (Engl. Q.B.D.);
Lasalle v. Disciplinary Tribunals of the Leclerc Inst.
(1983), 5 Admin. L.R. 23 (F.C.T.D.); Cardinal et al. v.
Director of Kent Institution, [1985] 2 S.C.R. 643; The
Queen v. Miller, [1985] 2 S.C.R. 613.
COUNSEL:
Lucie Lemonde for applicant.
David Lucas for respondents.
SOLICITORS:
Daignault & Lemonde, Montréal, for appli
cant.
Deputy Attorney General of Canada for
respondents.
EDITOR'S NOTE
The Executive Editor has decided to publish this
judgment because it provides a good review of
judicial rulings since the judgment of this Court in
Howard v. Stony Mountain Institution, [1984] 2
F.C. 642 (C.A.), on the question of the right of an
inmate to be represented by counsel before a
Disciplinary Tribunal. It was, however, decided
that this 37 page judgment should be published in
a shortened form with the following summary of
the facts being provided.
The applicant is serving a six-year term at the
Laval Institution, a maximum security penitentiary,
for robbery. On November 29, 1985 the applicant
and three other inmates, armed with home-made
picks and a knife, burst into another inmate's cell.
The latter was seriously wounded. The applicant
was placed in segregation and subsequently
transferred to a Special Handling Unit. On Febru-
ary 3, 1986 the applicant was convicted by the
Presiding Officer of a Disciplinary Tribunal of
possession of contraband (an offensive weapon)
contrary to paragraph 39(i) of the Penitentiary
Service Regulations. The offence, initially classi
fied as "major" by the officer drawing up the
Offence Report, was later downgraded by the
prison authorities to an "intermediary" category
offence.
In view of the objective seriousness of the
charge of possession of an offensive weapon, the
applicant was sentenced to 30 days' solitary
confinement.
The Presiding Officer of the Disciplinary Tri
bunal dismissed the applicant's request for
representation by counsel at the hearing on the
grounds that the charge involved issues of fact
and not of law; that the applicant was capable of
defending himself; and that since the offence was
an intermediary one, the loss of earned remission
was not involved.
The applicant sought a writ of certiorari to set
aside the decisions of the Presiding Officer of the
Disciplinary Tribunal sentencing him to solitary
confinement, of the Earned Remission Committee
not to grant him ten days of earned remission and
the decision to transfer him to a Special Handling
Unit. The applicant argued that these decisions
were contrary to section 7 of the Canadian Chart
er of Rights and Freedoms.
The following is the English version of the
reasons for order rendered by
ROULEAU J.: At the hearing of the application
at bar, the argument of counsel for the applicant
was in three parts. First, she put forward her
arguments against the decision of the Presiding
Officer of the Disciplinary Tribunal on February
3, 1986, then regarding the loss of "good time"
[loss of earned remission] and finally on the trans
fer to an S.H.U. [Special Handling Unit].
It will be recalled that on February 3, 1986 the
Presiding Officer of the Disciplinary Tribunal
found the applicant guilty of possession of contra
band and sentenced him to thirty days' punitive
dissociation. The applicant and his counsel object
ed to the fact that the Presiding Officer refused
without justification to allow the said applicant to
be accompanied and assisted by counsel at the
hearing on February 3, 1986, which contravenes
section 7 of the Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), which reads as follows:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
In short, it was alleged that the Presiding Officer's
denial constituted an invasion of the applicant's
liberty.
I should say in passing that it is wrong to
suggest, as the applicant did, that the Presiding
Officer denied the applicant's request without jus
tification. Paragraph 16 of the affidavit of the
Presiding Officer of the Tribunal (reproduced
above)* indicates that this was not so. It seems
clear that the objection of the applicant and his
counsel is to the reasons given by the Presiding
Officer, not to the absence of any reasons. It still
now falls to me to decide whether the Presiding
Officer's denial of the applicant's request for
representation by counsel infringes the constitu
tionally guaranteed right of the said applicant to
liberty.
The applicable law appears to have been clearly
set out in Howard v. Stony Mountain Institution,'
[1984] 2 F.C. 642; (1985), 57 N.R. 280 (C.A.), in
which the Chief Justice of the Federal Court
concluded, at pages 663 F.C.; 292 N.R., that:
... whether or not the person 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. This list
is not exhaustive.
In the same case, MacGuigan J. also adopted the
six criteria mentioned by Webster J. in Reg. y
Secretary of State for the Home Department, Ex
parte Tarrant, [1984] 2 W.L.R. 613 (Engl.
Q.$.D.). These six criteria, which must be taken
into account in considering the right to representa
tion by counsel, are:
(1) the seriousness of the charge and of the potential penalty;
(2) whether any points of law are likely to arise;
(3) the capacity of a particular prisoner to present his own
case;
(4) procedural difficulties;
(5) the need for reasonable speed in adjudication;
(6) the need for fairness as between prisoners and as between
prisoners and prison officers.
There is no question that the Presiding Officer of
the Disciplinary Tribunal read and applied
* Editor's note: Here is the text of that paragraph:
16. I told him I was denying his request to be represented by
counsel and gave him my reasons, namely:
(a) he was fully aware of the nature of the charge;
(b) it was an intermediary offence for which I could not
deprive him of any earned remission;
(c) he was intelligent and able to defend himself;
(d) the charge was one of fact and not of law;
' Now before the Supreme Court of Canada.
Howard, as is indicated by the reasons given in
support of his denial (paragraph 16 of his
affidavit).
I think it would be useful at this stage to recall
the facts which led to the Howard decision. They
are taken from the headnote and read as follows
[at page 643 F.C.]:
The appellant [Howard], an inmate of Stony Mountain
Institution, was charged with disciplinary offences under sec
tion 39 of the Penitentiary Service Regulations. The charges
were all classified as "serious or flagrant" offences pursuant to
Commissioner's Directive No 213. The appellant obtained
Legal Aid counsel and applied to have counsel represent him at
the disciplinary hearing. That request was denied by the Presid
ing Officer of the Inmate Disciplinary Court who held that
section 7 of the Charter had not created a "new wave of rights"
and that the circumstances of the case did not preclude a fair
hearing in the absence of counsel. The Trial Division dismissed
the appellant's application for prohibition on the grounds that
at common law there existed no right to counsel and that
section 7 had not conferred on the appellant a new right to such
representation.
The Court of Appeal allowed the inmate Howard's
appeal. The Chief Justice and Pratte J. considered
that [at page 644 F.C.]:
In the instant case, the appellant's request could not have
been lawfully refused. The fact that his 267 days of earned
remission were in jeopardy, that there existed a lack of particu
lars with respect to the disciplinary offences, and that one of
the charges, i.e. conduct calculated to prejudice discipline and
good order, is a notoriously vague and difficult charge to
defend, suggest the need for counsel. Moreover, in a social
system which recognizes the right of anyone to counsel in any
of the ordinary courts of law for the defence of any charge, it
would be incongruous to deny such a right to a person who,
though not suffering from any physical or mental incapacity to
defend himself, is faced with charges having such grave
consequences.
In concurring reasons, MacGuigan J. said it was
his opinion that [at page 645 F.C.]:
What section 7 requires is that an inmate be allowed counsel
when to deny his request would infringe his right to fundamen
tal justice. The existence of the right admittedly depends on the
facts. The presiding officer's authority cannot prevent a review
ing court from substituting its own view if it is clearly satisfied
that the exercise of the presiding officer's discretion was wrong.
In this case, the presiding officer in expressing the opinion that
section 7 "[did] not create a new wave of rights nor [did] it
elevate any greater degree of responsibility by an administra
tive tribunal such as the Inmate Disciplinary Board" has
misunderstood the effect of the Charter. The Charter does
modify the previous understanding of the law and in so doing it
does affect even purely administrative proceedings. The appel
lant was thus clearly deprived of the protection of a fundamen
tal principle of justice in violation of section 7.
Since Howard (supra), the Federal Court Trial
Division has four times had occasion to consider
this problem of the right to representation by
counsel before an inmate disciplinary tribunal.
These decisions are: Savard v. Edmonton Institu
tion Disciplinary Court (Presiding Member) et al.
(1986), 3 F.T.R. 1; Walker v. Kingston Peniten
tiary Disciplinary Board (1986), 3 F.T.R. 109;
Mitchell v. Crozier, [1986] 1 F.C. 255; (1986), 1
F.T.R. 138, and finally Bailey v. Mission Institu
tion Disciplinary Court (Independent Chairper
son) (1987), 6 F.T.R. 69. It should also be noted
that the Penitentiary Service Regulations [C.R.C.,
c. 1251], and in particular section 38, have been
amended to add to cases of minor and flagrant or
serious misconduct a new category of offence,
namely that of intermediary misconduct.' Some
have argued that the addition of a category of
intermediary misconduct was designed essentially
to counter the effects of Howard (supra).'
In Savard v. Edmonton Institution Disciplinary
Court (Presiding Member) et al. (supra), the
offence with which the inmate was charged was
classed as flagrant or serious by the competent
authority of the Institution. Besides incurring the
same penalties as for intermediary misconduct, an
inmate who is convicted of flagrant or serious
misconduct is also liable to lose his right to statu
tory remission or to earned remission, acquired
after July 1, 1978 (see paragraph 38(9)(f) of the
Regulations).
The facts of this case are quite straightforward
and may be summarized as follows [at page 1]:
An inmate was charged under s. 39(h) of the Penitentiary
Service Regulations with disobeying a rule governing the con
duct of an inmate. Specifically he was allegedly absent from a
10:00 p.m. "stand-to count". The inmate applied for a writ of
prohibition to prevent the Edmonton Institution Disciplinary
Court and the Warden of the Institution from proceeding with
2 SOR/85-640, July 5, 1985.
3 Michael Jackson, "The Right to Counsel in Prison Discipli
nary Hearings" (1986), 20 U.B.C. L. Rev. 221, at p. 278.
the charge unless the inmate was allowed to be represented by
counsel.
The question at issue was stated by Reed J. as
follows [at pages 2-3]:
The issue then, is solely one of the application of the Court of
Appeal decision in Howard v. Presiding Officer of Inmate
Disciplinary Court of Stony Mountain Institution (1985), 57
N.R. 280; 45 C.R. (3d) 242. In that decision it was held that
whether an inmate was entitled to counsel before a Penitentiary
Disciplinary Court depended upon the circumstances of the
particular case. The test to be applied was stated at page 263
C.R. to be: whether the circumstances are such that "an
opportunity to adequately present his case cannot be accorded
without the inmate being allowed to have counsel". It was
indicated that the factors relevant to such a determination are:
(1) the seriousness of the charge; (2) the complexity of the
charge and whether or not any points of law might arise; (3)
the capacity of the person to present his own case; (4) the
existence of procedural difficulties; (5) the need for speed in
some disciplinary situations; (6) the need for fairness as be
tween prisoners and as between prisoners and prison officers.
This list was stated not to be exhaustive.
To resolve this question, therefore, she applied the
criteria stated in Howard to the case before her.
Her analysis was [at pages 3-4]:
A determination of the seriousness of the charge in this case
is difficult to make. As noted above the charge was labelled as
serious in the notification given to the inmate. Counsel for the
respondents indicates that the punishments possible for this
type of offence are as set out in section 38(9) of the Penitentia
ry Service Regulations (supra). Yet, because of the particular
circumstances of this inmate and of the offence charged, there
is no actual possibility of either a loss of remission or of a $500
fine. What is more the probable consequences to the individual
as demonstrated by sentences accorded in analogous cases is a
suspended sentence of a certain number of days disassociation.
I interpret 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 charges
generally of the type in question. In that light I could not find
that in the present situation the charge is of such a serious
nature that, for the reason alone the right to counsel is required
in order to ensure that the principles of fundamental justice are
complied with. What then of the other elements to be
considered?
The charge is not a complex one; it revolves primarily around
determinations of fact: was there a stand-to count on the night
in question and did the applicant have a valid excuse for not
being present? Counsel for the applicant stressed that the
defence of necessity in the common law is a complex legal and
factual issue. Reference was made to Perka et al. v. R. (1984),
55 N.R. 1; 42 C.R. (3d) 113.
While the Perka decision is a long one and it explores the
philosophical underpinnings of the so-called defence of necessi
ty as well as its appropriate characterization for Criminal Code
purposes, I do not think that the gist of the determination
required by the Disciplinary Court is all that complex. To quote
the Chief Justice, at page 131:
... At the heart of this defence is the perceived injustice of
punishing violations of the law in circumstances in which the
person had no other viable or reasonable choice available; the
act was wrong but it is excused because it was realistically
unavoidable.
In fact I suspect that applicant wishes the Disciplinary Court
to go beyond the strict assessment of the defence of necessity
which the Chief Justice describes as requiring proof of an
"involuntary response to an imminent and overwhelming peril"
and to consider all factors surrounding the alleged offence in
order to assess his "excuse" and the results that should flow
therefrom. This is what that court is set up to do without being
bound by the legal technicalities pertaining in a criminal
proceeding. I cannot characterize the determination required
by it as a complex one.
In the present case there is no indication that the inmate
lacks ability or capacity to present his own defence, indeed
quite the contrary. There is no indication that any procedural
difficulties are involved in the case. Nor is there, however, any
indication that speed in adjudicating the issue is particularly
important—in fact the inmate was not notified of the charge
until two weeks after the incident in question. There is nothing
to indicate that any question of fairness as between prisoners,
or as between prisoners and prison officials suggests that
representation by counsel is desirable.
After this comprehensive analysis, the Learned
Judge concluded [at page 4]:
In the light of all the circumstances I cannot conclude that
the denial of representation by counsel, in this case, constitutes
a denial of fundamental justice contrary to section 7 of the
Canadian Charter of Rights and Freedoms.
This case accordingly indicates that, though the
offence was classified at the outset as flagrant or
serious, all the circumstances of the case were such
that representation by counsel was not necessary.
Reed J. considered the fact that an inmate could
not in the circumstances run the risk of losing his
right to a reduced penalty or a fine, and this
weighed heavily in the balance. The other critical
factor appears to have been the absence of any
point of law that might be raised, since the offence
was exclusively one of fact, that is, the Presiding
Officer of the Court had to decide whether the
excuse offered by the inmate for his absence from
the stand-to count was legitimate.
In Walker v. Kingston Penitentiary Disciplinary
Board (supra), the inmate Walker was charged
with behaving in an indecent, disrespectful or
threatening manner towards another person, in
this case a correctional service officer. The offence
was classified as flagrant or serious misconduct,
but this did not prevent the Presiding Officer of
the Disciplinary Board from denying the represen
tation by counsel demanded by the inmate.
Strayer J. summarized the possible conse
quences of a conviction for an inmate as follows
[at page 110]:
The applicant is serving a sentence of life imprisonment for
second degree murder. He seeks certiorari with respect to a
decision of June 18, 1985, of Thomas W. Troughton sitting in
his capacity as Independent Chairperson of the Disciplinary
Court of Kingston Penitentiary. That decision was to convict
the applicant of a disciplinary offence under paragraph 39(g) of
the Penitentiary Service Regulations which then provided that
an inmate commits a disciplinary offence if he
is indecent, disrespectful or threatening in his actions, lan
guage or writing toward any other person.
By section 38(4) of the same Regulations the possible punish
ment for such an offence, if it is treated as flagrant or serious
(which this offence was) is one or both of: (i) dissociation for a
period not exceeding 30 days; and (ii) loss of privileges. In the
event, the applicant was sentenced to five days punitive dis
sociation, and 14 days loss of privileges which were suspended
for 90 days. He did not suffer any loss of privileges and the five
days of punitive dissociation have long since been served.
After reviewing the applicable precedents, Strayer
J. considered Howard (supra) at greater length
and concluded, after applying the criteria set forth
by the Court of Appeal on the right to representa
tion by counsel, that the inmate Walker did not
need such representation [at page 111]:
I understand from the Howard decision, therefore, that as
the reviewing court in this case I can look at all the circum
stances and determine whether they were such that the oppor
tunity to present his case adequately required representation by
counsel for the applicant. I am not satisfied that they did.
In arriving at this conclusion, he distinguished
Howard (supra) from the case before him. He did
so as follows [at pages 111-112]:
First, in contrast to the Howard case where there were
several charges, some of which were very broad and as far as
one can tell not clarified by particulars, in the present case
there was one charge in respect of one brief event which
occurred on April 25, 1985. The applicant confirms that he
received a document on May 2, 1985, which was headed
"Inmate Offence Report and Notification of Charge". This
document includes a "description of offence" which is the
Correctional Officer's own account of the events forming the
basis for the charge. This document also states the charge itself
and could leave the inmate in little doubt as to the accusation
and evidence he had to face. This case first came before the
Disciplinary Court on May 9, 1985, at which time the applicant
sought and obtained an adjournment in order that he could
seek legal advice. He was in communication with the Correc
tional Law Project at Queens University and obtained a further
adjournment on May 23rd to enable him to get legal assistance
for the hearing. During this period he apparently talked to
someone from the Correctional Law Project and a legally
trained person prepared for him a written submission, essential
ly on the issue of why he should be entitled to counsel. He
presented this to the Disciplinary Court on the adjourned date
of June 6th and though he had no counsel present asked for the
right to have counsel. This was refused. The matter was further
adjourned until June 18th when he was tried and convicted. As
a practical matter, I am unable to see that there were any such
ambiguities or subtleties in the nature or description of the
charge that the inmate could reasonably be considered inca
pable of understanding that of which he was accused. Obvious
ly there were contentious questions as to the manner of the
"touching" by the Correctional Officer, the degree of this or
other provocation by the Officer, and the exact content and
tenor of the inmate's remarks to the Officer. But these were
questions of evidence and not matters crying out for legal
analysis. The inmate had some six or seven weeks to prepare his
case so he cannot be said to have been handicapped in respect
of time, either.
It is also relevant that the applicant obviously did have access
to legal advice in the meantime and could have sought guidance
on how to conduct his case rather than on how it insist on
having counsel present.
Another very important consideration here is that, in con
trast to the Howard case, the only formal penalties for convic
tion were dissociation for a period of up to 30 days and loss of
privileges. The Howard case involved a possible loss of up to
267 days of earned remission. In both the majority and the
minority judgment in Howard it was recognized that the gravi
ty or seriousness of the offence would be a relevant circum
stance for a reviewing court to consider in deciding whether
representation by counsel should have been allowed. [My
emphasis.]
It thus appears from the passage cited above that
Strayer J. regarded the seriousness of the charge
and the penalty which could be imposed as having
an almost conclusive significance.
In Mitchell v. Crozier (supra), the facts were as
follows [at page 138 F.T.R.]:
A prison inmate with an S-2 security rating was charged
with three breaches of the Penitentiary Service Regulations.
The inmate was transferred to a higher security rated institu
tion and eventually reclassified as S-5. The disciplinary court
convicted the inmate on all three charges and sentenced him
accordingly. The Regional Transfer Board reviewed and con
firmed the inmate's transfer and reclassification. The inmate
applied under s. 18 of the Federal Court Act for certiorari to
quash the convictions, sentences, transfer and reclassification,
submitting that the denial of representation by counsel at the
disciplinary proceedings deprived him of his right to liberty
under s. 7 of the Charter of Rights and Freedoms and that the
Regional Transfer Board breached its duty of fairness in basing
its decision on evidence not disclosed to the inmate prior to the
hearing.
After dealing with the other points at issue my
learned brother McNair J. finally tackled the
point of particular importance here, that of the
right to representation by counsel before a discipli
nary court. This is how he stated the question [at
pages 269-270 F.C.; 147 F.T.R.]:
This brings me to the final point, namely, whether the denial
of representation by counsel on the hearing of the first two
charges before the disciplinary court violated the applicant's
right to liberty under section 7 of the Charter, which came into
effect on April 17, 1982, and reads:
7. Everyone has the right to life, liberty and security of
the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
I now come to the ratio decidendi of his judgment.
It reads as follows [at pages 272-273 F.C.; 148-
149 F.T.R.]:
It would appear therefore on the broad principle of Howard
that the applicant 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. There is no evidence
that Mitchell was a person of defective mental capacity or
lacking in intelligence or understanding. Indeed, everything
points to the contrary. The disciplinary court characterized all
three charges as serious and there is nothing in the record to
suggest any differentiation with respect to the two so-called
minor charges, calculated or otherwise. Mitchell admits in his
own affidavit:
... I believed these two charges were "minor" and that I
could not lose remission, and did not ask for counsel. Had I
realized that these were "major" charges, I would have
requested counsel.
What led to this misconception on his part was his own
conduct and nothing else. The applicant refused on two occa
sions to read the charges and took it upon himself to categorize
them as minor in nature. There was no inducement or represen
tation by the disciplinary court to treat them as other than
serious. The applicant 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. Where is
the denial in these circumstances of any constitutionally guar
anteed right? Put another way, can an accused 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, be afterwards seen to constitute
a deprivation of his right to liberty within the meaning of
section 7 of the Charter? I think not.
This case is the least similar to the one at bar.
Nevertheless, McNair J. concluded that the
inmate's ability to present his case himself was
such that he saw no point in the inmate being
represented by counsel.
Finally, in Bailey v. Mission Institution Disci
plinary Court (Independent Chairperson) (supra),
the Court upheld the inmate's request and set
aside the decision of the Presiding Judge of the
Disciplinary Court. In doing so Teitelbaum J., like
the other judges, applied the rules stated in
Howard (supra) and concluded that the serious
ness of the charge and the penalty which could be
imposed justified the inmate in asking to have
counsel present. The facts of that case are very,
very similar to the case at bar. They are summa
rized by Teitelbaum J. as follows [at pages 70-71];
Bailey is presently incarcerated in the Mission Medium
Security Institution serving a term of incarceration of seven
years imposed in 1983.
On February 10, 1986, Bailey was charged pursuant to s.
39(i) of the Penitentiary Service Regulations with having
contraband in his possession and as a result was served with an
Inmate Offence Report and Notification of Charge. (Exhibit B
attached to affidavit of Dinsley).
Exhibit "B" describes the offence and charge as being:
Has contraband in his possession (Ball point pen tube with
marijuana residue).
The same Exhibit "B" states that the offence category is
"intermediary" and states that Bailey is being referred to the
Disciplinary Court for the charge of "Has Contraband in his
Possession".
Upon conviction Bailey would be subject to a fine and/or
solitary confinement for up to thirty days.
On February 13, 1986 Bailey appeared before the respon
dent, Dinsley, requested and was granted an adjournment until
February 20, 1986.
On February 20, 1986, Bailey appeared before Dinsley and
requested counsel. The request was denied and the hearing
continued. At the hearing Bailey did not request an adjourn
ment in order to obtain counsel.
Dinsley found Bailey guilty of having contraband (Ball point
pen tube with marijuana residue) in his possession as per the
charge sheet Exhibit "B" and sentenced him to 15 days puni
tive dissociation (solitary confinement), loss of all privileges
except smoking, correspondence and visiting, suspended 60
days pending good behavior and a fine of $20.00.
After citing the relevant passage of the judgment
of Reed J. in Savard (supra), Teitelbaum J. paid
particular attention to the question of the serious
ness of the charge and the penalty which could be
imposed. If I am not mistaken, he made this the
sole criterion for his decision before finding in
favour of the inmate Bailey. His finding was as
follows [at pages 72-73]:
It is my belief that a determination of the seriousness of the
charge is not too difficult to make in this particular case.
As I have stated, Exhibit "B", the Inmate Offence Report,
has listed under Offence Category, the charge to be an Inter
mediary one.
At the time of the Howard case, there were only two
categories of offences, serious and minor. Subsequently, a third
category was added, the third category being intermediary.
As can be seen on Exhibit "B" the category "intermediary"
had to be written in by hand as, I presume, no new forms were
yet printed or no new forms were in the possession of the
authorities at the Mission Institution.
Art. 38(8) of the Penitentiary Service Regulations sets out
the possible punishments for anyone found guilty of an inter
mediary offence. Art. 38(8) states:
38(8) An inmate who is found guilty of a disciplinary offence
that is determined by the directives to be an intermediary
misconduct is liable to one or more of the following
punishments:
(a) A warning or reprimand;
(b) the loss of privileges;
(c) a fine of not more than $50 to be recovered in
accordance with subsection (12);
(d) reimbursement of Her Majesty, in the manner estab
lished by the directives, up to a maximum of $500, for
the amount of damages caused wilfully or negligently
to
(i) any property of Her Majesty, or
(ii) the property of another person where Her Majes
ty has reimbursed such person for the amount of
damages; and
(e) subject to subsection (10) dissociation from other
inmates for a period not exceeding thirty consecutive
days.
The only possible punishment to which Bailey would not be
subject would be reimbursement to Her Majesty of a sum of
$500 as Bailey is not charged with causing wilfull damages.
Furthermore, Bailey could, and in fact did, fail to earn
remission which, had he not been found guilty, he would have
earned.
Exhibit "A" attached to the affidavit of Bailey states, among
other matters:
10 days earned remission were not awarded to you for the
following reasons:
Intermediate Offence Report under P.S.R. 39(1) dated
86/02/07
FTE 5 days
Intermediate Offence Report under P.S.R. 39(1) dated
86/02/11
FTE 5 days.
The charge of contraband (Ball point pen tube with marijua
na residue) is dated 07/02/86 (Exhibit B of Dinsley affidavit).
Therefore, we see that Bailey lost 5 days of remission that he
could have earned had he not been found guilty by Dinsley.
As Madame Justice Reed states in the Savard case:
I interpret 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
charges generally of the type in question.
I am satisfied that considering all of the circumstances of
this case relating to the type of offence and the possible
punishment, with special regard to the possible punishment of
dissociation and failure to earn remission, the offence is one
that the failure to allow Bailey the right to counsel was a denial
of the principles of fundamental justice accorded under s. 7 of
the Canadian Charter of Rights and Freedoms which states:
7.... Everyone has the right to life, liberty and security of
the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
As in Bailey (supra), the applicant in the case
at bar as a result of his conviction has lost inter
alia ten days of "good time" (earned remission),
as is indicated by the Monthly Notification of
Remission sent to the applicant and attached to his
affidavit as Exhibit H. These ten days of remission
were not granted because of an Intermediary
Offence Report and twenty-five days of punitive
detention in January 1986.
After this further long detour, I now come to the
question of whether in the case at bar the appli
cant, who was the subject of disciplinary proceed
ings, was entitled to representation by counsel at
those proceedings. In doing so I apply the criteria
set forth in Howard (supra), at least those which I
feel are the most conclusive in the circumstances
of the case at bar.
(1) Seriousness of charge and penalty which
could be imposed
The seriousness is not in doubt here. A man was
seriously injured in the incidents on November 29,
1986, in which the applicant was found by the
prison authorities to be one of those responsible.
Otherwise, why would he be charged first with
possession of contraband (an offensive weapon)
and later with aggravated assault? The fact that
these two charges were later withdrawn and a
third charge subsequently laid (two months after
the event) does not reduce the seriousness of the
charge. Similarly, the fact that the charge (initial-
ly there were two charges which were withdrawn
and a third was subsequently laid) was classified
as intermediary misconduct by the prison authori
ties also does not reduce its seriousness. If this
charge is compared with that in Savard (supra),
its seriousness is apparent.
So far as the penalty that could be imposed is
concerned, it is true that the Presiding Officer of
the Disciplinary Tribunal could not, under subsec
tion 38(8) of the Regulations, sentence the appli
cant to the loss of his right to statutory or earned
remission since the offence was in the intermediary
category. However, like any other inmate the
applicant risks not being granted days of remission
by the Earned Remission Committee because of
the charge laid against him. In this regard, I would
refer the parties to the following comments of
Professor Jackson, who in his well-documented
article "The Right to Counsel in Prison Discipli
nary Hearings", 4 at pages 279-280, writes that:
... While a prisoner cannot be sentenced at the disciplinary
board hearing to loss of remission for an intermediary offence,
he will nevertheless have his liberty interest affected by failing
to earn remission arising directly from the commission of the
offence as a result of the earned remission scheme. As I have
4 Loc cit, note 3.
explained, for every three days in punitive dissociation a prison
er will fail to earn one day of remission and, depending upon
the gravity of the offence, the Earned Remission Board can fail
to credit up to the maximum of fifteen days remission for that
month. [My emphasis.]
... For these prisoners and indeed for all prisoners who inevita
bly fail to earn remission following conviction of an intermedi
ary offence, to be told that they do not have the right to counsel
because, at the disciplinary hearing, the independent chairper
son could not sentence them to loss of remission, is calculated
to do nothing but further prisoners' disdain for the Correctional
Service's claim that justice now runs behind prison walls.
It can thus be concluded on this point that the
penalty which could be imposed does not rest
solely with the Presiding Officer of the Discipli
nary Tribunal. Additionally, as Reed J. properly
observed in Savard (supra), the so-called
"theoretical consequences" must also be taken into
consideration.
(2) Possibility that points of law will be raised
In this regard, it is likely that a person with
legal training would have wanted to raise the
question of the delay (over two months) between
the date of the incident which led to three offence
reports and the date of the hearing of the case
before the Disciplinary Tribunal. Such a person
might also have wanted to raise the question of the
number of charges resulting from the same event
(see in this regard Lasalle v. Disciplinary Tri
bunals of the Leclerc Inst. (1983), 5 Admin. L.R.
23 (F.C.T.D.)). Finally, such a person might have
put forward the defence of autrefois acquit.
(3) Inmate's ability to present his own case
This overlaps the last point to some extent.
Suffice it to say, without being condescending or
doubting the intelligence of the applicant, that he
might have had difficulty presenting his views on
the points of law mentioned above. He is not a
lawyer and as a result of his imprisonment has
rather limited resources for communication and
obtaining information.
In brief, the analysis of these facts leads to the
conclusion that the refusal by the Presiding Offi
cer of the Disciplinary Tribunal to allow the appli
cant to be represented by counsel infringes the
constitutionally guaranteed right of the said appli
cant to liberty, and that accordingly the Court
must issue a writ of certiorari and set aside the
decision of the Presiding Officer of the Discipli
nary Tribunal dated February 3, 1986.
As my judgment is in favour of counsel for the
applicant on the first part of his argument, I do
not feel that I need go any further and discuss the
other two parts, namely the loss of "good time"
and the transfer to an S.H.U.
The application for a writ of certiorari is
allowed with costs.
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