T-2648-89
Ronald Teneycke (Applicant)
v.
Matsqui Institution Disciplinary Court (Respon-
dent)
INDEXED AS: TENEYCKE V. MATSQUI INSTITUTION (T.D.)
Trial Division, Addy J.—Vancouver, January 22
and 24, 1990.
Judicial review — Prerogative writs — Certiorari —
Application to quash conviction under Penitentiary Service
Regulations — Applicant allegedly indecently exposing him
self through cell window — Defence: impossibility because of
height of window — Chairman of disciplinary court conduct
ing view of cell, taking measurements, moving furniture and
conversing with officers — Applicant not notified of nor
present at, view — Principles governing taking of view in
criminal matters not applicable to administrative tribunal —
In absence of specific statutory provision to contrary, views
conducted only to allow tribunal to better understand evidence,
not to gather evidence — Parties must be present when view
taken unless right waived — Tribunal charged with decision-
making responsibility involving rights of others not entitled to
actively gather evidence or to decide matters on basis of own
observation of material facts not established in evidence —
Irrelevant whether applicant suffering prejudice — Applica
tion allowed.
Penitentiaries — Inmate convicted of offence under Peniten
tiary Service Regulations — Allegedly indecently exposing
himself through cell window — Defence: impossibility because
of height of cell window — Chairman of disciplinary court
conducting view of cell in absence of inmate and without prior
notification — Measuring cell, moving furniture and convers
ing with accompanying officers — Conviction quashed —
Principles governing views by administrative tribunals distin
guished from those governing views in criminal matters.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Penitentiary Service Regulations, C.R.C., c. 1251, s.
39(g) (as am. by SOR/85-640, s. 4).
COUNSEL:
Peter Harrison for applicant.
Gunnar O. Eggertson for respondent.
SOLICITORS:
Conroy and Company, Abbotsford, British
Columbia for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
ADDY J.: Pursuant to section 18 of the Federal
Court Act [R.S.C., 1985, c. F-7], the applicant is
requesting relief by means of certiorari for an
order quashing the decision of an institution disci
plinary court of Matsqui Penitentiary, pursuant to
which he was convicted of an offence under para
graph 39(g) of the Penitentiary Service Regula
tions [C.R.C., c. 1251 (as am. by SOR/85-640, s.
4)], namely in behaving towards another person in
an indecent, disrespectful, threatening or defama
tory manner.
The relevant facts are not in dispute. They may
be summarized as follows:
1. The evidence led against the applicant at the
hearing was to the effect that through the
window of his cell he had indecently exposed
himself to the charging officer.
2. The theory of the defence was that it was
impossible for him to have done so because of
the height of the window above the floor of the
cell.
3. As a result of the above, the Chairman pre
siding over the disciplinary court was faced with
a clear question of credibility.
4. In order to attempt to resolve the question, he
chose to conduct a view of the cell which the
applicant had occupied at the time of the alleged
offence.
5. He was accompanied by two of the officers of
the Service authorized to assist him pursuant to
section 13 of the Commissioner's Directive by
providing any details or documents which might
be requested.
6. The applicant was never advised of the deci
sion to carry out the view and neither he nor his
personal representative was present. Their first
knowledge that the view had been taken was
when the Chairman announced the fact in his
decision, pursuant to which the applicant was
found guilty.
7. During the view the Chairman caused meas
urements to be taken of the cell, ordered furni
ture to be moved about and engaged in conver
sation with the officers accompanying him.
There is no evidence of what was said.
It is clear that the common law or the Criminal
Code [R.S.C., 1985, c. C-46] principles governing
the taking of a view in a criminal matter, do not
apply to the present case since the tribunal is an
administrative one and not a court of law. Quite
correctly, section 21 of the Commissioner's direc
tive specifically provides that the rules of evidence
in criminal matters do not apply in disciplinary
matters and any evidence which is considered
reasonable or trustworthy may be admitted.
The following principles, which I consider to be
well established by jurisprudence, govern my deci
sion in this case:
1. In the absence of a specific statutory provision
to the contrary, views may be conducted only for
the very restricted purpose of allowing the tribunal
to better understand the evidence. Be it a criminal
prosecution, a civil suit or a proceeding before an
administrative tribunal, the purpose can never be
to allow the gathering of evidence at the scene by
the tribunal, except possibly in an exceptional case
where the parties involved might fully and freely
agree to such a procedure.
2. 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
evidently part of that process. In the case of
administrative tribunals great care must be taken
where the liberty of the subject is involved. Indeed
section 15 of the Commissioner's directive specifi
cally provides that inmates shall appear through
out the hearing unless they waive their right in
writing or unless the Chairman is satisfied that the
inmate's presence would jeopardize the security or
the good order of the institution. There is no such
suggestion of the possibility of either the security
or the good order of the institution being jeopard
ized by reason of the view in this particular case.
3. Finally and most importantly, it is abundantly
clear and I dare say axiomatic that, in no event, is
a person presiding over 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. One cannot be a judge and witness in
the same cause. As a matter of law, it is even
improper for a person to act as counsel and witness
in the same cause.
It matters not, nor must the Court enquire,
whether the applicant suffered any prejudice in
such case. By taking measurements in the cell and
causing the furniture to be moved about, the
Chairman automatically and irrevocably lost juris
diction. His subsequent decision, is therefore, a
nullity and must be quashed.
The case will be referred back for another hear
ing by an independent Chairperson should the
authorities decide to proceed with it. In such event,
I wish to make it clear that all the evidence
already adduced may be taken into account if the
independent Chairperson so desires except, of
course, any evidence obtained during the
impugned view.
The applicant will be entitled to his costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.