MARCUS CHARLES Applicant v. ATTORNEY, 2017 FC 435

Date: 20170502 Docket: T-1881-16 Citation: 2017 FC 435 Ottawa, Ontario, May 2, 2017 PRESENT: The Honourable Mr. Justice Roy BETWEEN:MARCUS CHARLESApplicantandATTORNEY GENERAL OF CANADARespondent JUDGMENT AND REASONS [1] On July 7, 2016, Marcus Charles was a resident of the Collins Bay Institution, a penitentiary as defined in the Correctionsand Conditional Release Act, SC 1992, c 20 [the Act]. A search of his cell was conducted on that day. A weapon (a so-called “shank”)was found hidden in a fan he had in his cell. He was convicted on October 13, 2016, of the disciplinary offence spelled out at paragraph40 (

i) of the Act: 40 An inmate commits a disciplinary offencewho 40 Est coupable d’une infractiondisciplinaire le détenu qui :(

i) is in possession of, or deals in, contraband;

i) est en possession d’un objet interdit ou enfait le trafic; [2] It is from that conviction that the applicant seeks judicial review pursuant to

section 18.1 of the Federal Courts Act, RSC,1985, c F-7. I. The issue on judicial review [3] No one disputes the legality of the search or the fact that an object that would qualify as contraband was found in a fan thatwas located in the cell occupied by Mr. Charles. There is only one issue raised in the case. Was the applicant in possession ofcontraband? [4] The definition of “contraband” found at

section 2 of the Act includes the following: 2

(1) In this Part, 2

(1) Les définitions qui suivent s’appliquentà la présente partie.… …contraband means objets interdits… …(

b) a weapon or a component thereof,ammunition for a weapon, and anything thatis designed to kill, injure or disable a personor that is altered so as to be capable of killing,injuring or disabling a person, whenpossessed without prior authorization,

b) armes ou leurs pièces, munitions ainsi quetous objets conçus pour tuer, blesser ouimmobiliser ou modifies ou assemblés à cesfins, dont la possession n’a pas été autorisée; [5] The object that was found hidden in the fan in the cell occupied by Mr. Charles was described as “blue punch strap withmetal spikes protruding” and, once again, there is no dispute that such an object would constitute a homemade weapon captured by thedefinition of contraband at

section 2 of the Act. II. The facts [6] The applicant was in possession of such a weapon if the decision-maker is satisfied beyond reasonable doubt, “based on theevidence presented at the hearing, that the inmate committed the disciplinary offence in question” (subsection 43 (3) of the Act). In turn,Mr. Charles will have been proven to be in possession only if he was in control of the object constituting the contraband and hadknowledge of the quality of the object that was found. Knowledge is a fundamental requirement.

One cannot be in possession if one doesnot know what he has physical possession of at any given time (Beaver v R, (SCC), [1957] SCR 531). No one issuggesting that the offence of possession of contraband is a strict liability offence. [7] The evidence before the independent chairperson [the decision-maker] showed that the search conducted by a correctionalofficer produced the fan. The officer removed the cap from the front of the applicant’s portable fan and found an object inside which hecharacterized as a homemade weapon. As indicated earlier, that characterization has not been in dispute in this case.

[ 8 ] The officer explained that the 3-inch wide cavity found behind the fan’s cap was a common hiding place. The officer testified that the cap is not screwed on but is rather “pressure fitted” . He noticed nick marks on the fan found in the applicant’s cell, which suggested to him that the cap had previously been pried off. However, the object in question would not be exposed until the fan was taken apart.

Because the object was made of cloth, it would be difficult to hear it rattling in the fan. [ 9 ] The applicant’s evidence, which he offered at the disciplinary hearing, is that he had asked other inmates for a fan because it was hot and he was still waiting for his property to arrive. About 2 to 3 weeks before the cell’s search, some inmate gave him a fan that had been left by an inmate who was released a few months earlier. The applicant did not examine the fan when he got it.

When asked by his counsel whether he knew how to open the fan’s cavity, he responded: “If I wanted to try, yeah, I guess.” Evidently, the defence that was offered was absence of knowledge that contraband was lodged in the fan. III. Arguments and standards of review [ 10 ] The decision is challenged on two fronts. First, the applicant contends that the independent chairperson relied on information that was not made available to him at the hearing, such that this constitutes a violation of the duty to act fairly.

Second, the applicant argues that the finding that he was guilty is not reasonable given the evidence that was before the decision-maker. [ 11 ] The standards of review are not the subject of controversy. Violations of procedural fairness are reviewable on a standard of correctness ( Mission Institution v Khela , 2014 SCC 24 , [2014] 1 SCR 502, at para 79 ; Canada (Attorney General) v Blackman , 2016 FC 488 at para 26 and 31 ). Whether or not the finding of guilty is appropriate, is reviewable on a reasonableness standard ( Chshukina v Canada , 2016 FC 662 at para 19 ). IV.

Decision under review [ 12 ] Following what appears to have been a short hearing, the independent chairperson rendered an oral decision. He relied on five elements in order to conclude that the applicant was in possession of contraband:

a) Mr. Charles ought to have known that he is not entitled to receive belongings of other inmates. In the words of the decision- maker, “(t)his is the kind of situation that results in this” ;

b) The explanation given by Mr. Charles that he did not know of the hidden contraband cannot be accepted because that “would create chaos” ;

c) The fan bore nick marks that must have been noticed by the inmate;

d) The fan in which the contraband was found was in the applicant’s cell; he testified that no one but him took possession of the fan in the three weeks he had it (p. 29 of the applicant’s record);

e) Mr. Charles had been convicted of having a homemade weapon two months earlier, that weapon being similar in nature. No details about similarities were offered. [ 13 ] Without articulating how these elements lead to conviction, how they can be used and to what effect the decision-maker simply concludes that “on all the evidence before the court, I am satisfied beyond a reasonable doubt and I accept the evidence of Officer Hoekstma and I find Mr. Charles guilty as charged and convict him of the offence.” V.

Analysis [ 14 ] In my view, this decision of the independent chairperson must be quashed because it violates procedural fairness. However, the remedy sought by the applicant, his acquittal, would not be appropriate in the circumstances of this case. Rather the normal remedy of returning the matter to a differently composed tribunal for redetermination is more appropriate in light of the facts of the case. [ 15 ] This case turns on whether or not Mr. Charles had knowledge of what was found in the fan. Given the standard in subsection 43 (3) , that element of the offence must be proven beyond reasonable doubt.

The difficulty in this case is that the independent chairperson chose to rely on information that was not before the panel to reach his conclusion about knowledge of the contraband hidden in a fan possessed for a period of time of up to three weeks. That violates the procedural fairness of the proceeding. A. Procedural fairness [ 16 ] The first inkling that the decision-maker was in possession of more information than what was on the record came during the submissions offered to the panel by a person assisting Mr. Charles in his case. Here is the appropriate passage: Ms.

Woodward: It is my submission that, in this case, you cannot be reasonably satisfied that guilt is the only inference that can reasonably be drawn here. There is no inculpatory evidence which supports the assertion Mr. Charles was in possession of the weapon beyond the fact that the fan was found in his cell. The line of questioning directed toward the officer established this. I asked if he had had the weapon finger printed – he had not. I asked if he had any prior information that Mr. Charles was in possession of a weapon – he had not. I asked if Mr. Charles had ever admitted ownership of the item – he had not.

Mr. Romain : Well, I can tell you that, that he does have a history of weapons.

Ms. Woodward: We understand that, but prior convictions, with respect, should not be used to establish knowledge in this case of thisparticular contraband. Mr. Romain: No, but I thought that’s what you were saying that you asked the officer? Ms. Woodward: No. Mr. Romain: Oh I’m sorry. Ms. Woodward: Sorry, this possession of our weapon. Mr. Romain: Oh, Ok, alright. Ms. Woodward: Sorry, my mistake. I asked if he had any prior information that Mr. Charles had this particular weapon as means ofsearching the cell. Mr.

Romain: Ok. (My emphasis) [17] Evidently, the decision-maker had misunderstood the assertion made in the submission and he jumped in to indicate that thisinmate had a history of weapon’s possessing in the institution. That was not in evidence. [18] In the decision which was rendered immediately after submissions were heard, the decision-maker relied on the priorconviction. He said this: The onus still is with the institution to prove beyond reasonable doubt that Mr. Charles knew of the weapon. Now, Ms.

Woodwardpointed out that I can’t look at past history to make my determination in this case but I can use past history to assist me, and I can use any evidence that I find credible or trustworthy in rendering my decision. Mr. Charles just months earlier, on May the 28th of 2016, some twomonths prior to this charge, was found guilty of having a homemade weapon, and the weapon was similar in nature, it was a weapon thatyou wrap around your hand and add tape at the end of the handle, some type of homemade weapon, I don’t have it here so I can only goby the information that’s available to me.

That is not his first involvement with a homemade weapon, but that does not mean that he is guilty every time something is located, butwhen you take something that doesn’t belong to you, and I don’t know whose fan this was, I don’t know whether it did in fact comefrom another inmate, how long that inmate had it, how many other inmates may have had it. I have no information to that at all. (Applicant’s record, p. 37-38) [19] It is not completely clear why the decision-maker raises twice in a matter of minutes information that was never presented aspart of the case for the institution.

It is not any clearer how he disposes of the comment made by the person assisting the applicant, whenthe decision-maker suddenly raises the issue of a history of weapons during submissions, that prior convictions cannot be used to proveknowledge. However, the decision-maker is obviously using the information for the purpose of establishing knowledge in view of theapplicant’s alleged past involvement with weapons.

That is because having listed the various elements before him, including theconviction for possession of homemade weapon, the decision-maker finds beyond a reasonable doubt that the applicant is guilty ofpossession of contraband. Evidence that was never introduced pops up during submissions and is elaborated on during the rendering ofthe decision.

This constitutes a violation of procedural fairness in that the applicant was not given the opportunity required in law toparticipate fully in his hearing by knowing what information is alleged against him. [20] In Ayotte v Canada (Attorney General), 2003 FCA 429 [Ayotte], the Federal Court of Appeal endorsed the six principlesidentified by this Court in the case of Hendrickson v Kent Institution Disciplinary Court (Independent Chairperson) (1990), 32 FTR 296which were said to be derived from the decision in Martineau v Matsqui Institution Disciplinary Board, (SCC), [1980]1 SCR 602.

It is the third such principle that is applicable in this case. It reads: [9] … 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 thenature of the evidence against him and be afforded a reasonable opportunity to respond to the evidence and to give his version of thematter. (Ayotte, para 9) (My emphasis) [21] This requirement at common law is even strengthened since Parliament requires, at subsection 43 (3) that the decision be“based on the evidence presented at the hearing”.

No evidence was presented at the hearing. The decision-maker used information hehad acquired without disclosing it before. [22] The respondent argues that the applicant was given the opportunity required in law. The argument seems to be that theapplicant was made aware of the information relating to the “history of weapons” through the sudden intervention of the decision-makerduring the submissions. Thus, the applicant would have been given an opportunity to respond to the claims of the decision-maker.

TheAttorney General argues that the applicant would somehow have declined to object at the first opportunity offered to him, that is whenthe decision-maker raised the issue of “history of weapons” after having misunderstood the submissions made. With respect, that to me

misses the mark and does not conform to the passage cited from Ayotte. The decision-maker was reacting as the applicant was makinghis submission through Ms. Woodward. I fail to see how this could constitute the evidence and the nature of the evidence against himand that he was afforded reasonable opportunity to respond to the evidence and to give his version of the matter.

In fact, what hasoccurred in this case is the very opposite of providing someone an opportunity to respond, let alone a reasonable opportunity to respond. [23] Instead, the decision-maker indicated in his decision that he “can use past history to assist me, and I can use any evidence thatI find credible or trustworthy in rendering my decision.” The Court is not asked to decide whether that is possible or not, and to whateffect such information can be reasonably used.

Without turning these disciplinary hearings into full blown criminal trials, it might begood practice for the parties and decision-makers to consider more fully the precise use of and value of evidence of that nature in thecircumstances of the cases heard. That was the admonition of Doherty J.A. of the Ontario Court of Appeal concerning the use to be madeof prior consistent statements (R v Khan, 2017 ONCA 114, para 59) in criminal trials.

Considering what reasonable inference may bedrawn may be part of the reasonableness analysis in the context of decisions made by those disciplinary tribunals that pronounce onoffences. [24] Rather, the Court must decide on a correctness standard whether the evidence and the nature of the evidence to be used weredisclosed in such a way that the applicant can participate. The only articulation of the “evidence” is to be found in the decision itself.

Tomy way of thinking, this is not evidence presented at the hearing and that does not constitute an opportunity for the applicant to put thematter in its proper context in order to invite an appropriate response. It does not meet the test of acting fairly to bring onto the applicant,during the submissions, that he has a history of weapons, which suggests that the decision-maker had the information without disclosingit as part of the hearing itself.

Then, the decision-maker makes it an important part of his decision, providing for the first time the detailsof a charge against this applicant concerning some homemade weapon, going so far as to suggest that the weapon was similar in nature.That information, if it is admissible, ought to have been disclosed to the applicant as part of the case against him and not as part of adecision. That is the only way for the applicant to be put in a situation to comment on the evidence, to argue more fully for instance thatthe evidence is inadmissible or can be used for limited purposes.

Such opportunity was simply not afforded. [25] That is sufficient to dispose of the judicial review application in favour of the applicant. Since I have concluded that thematter needs to be sent back to a new independent chairperson, it may be of assistance to add the following. B. Clarifying knowledge, wilful blindness and recklessness [26] As part of the decision, the decision-maker indicated that Mr. Charles ought not to have used a fan received from anotherinmate.

The decision-maker mused that “this is the kind of situation that results in this.” The decision-maker then goes on to say that ifhe is “to accept totally his evidence that it was just given to him, then it would create chaos because you would have every inmatecoming in and saying “well it wasn’t mine, it was given to me by somebody else and therefore I don’t know anything about it” ”.

Thesekinds of statements are problematic because they suggest that the law of possession should not apply within a penitentiary institution.The law is clear that must be proven beyond reasonable doubt that the person charged with the possession offence had knowledge, aswell as control of the thing possessed. Short of that evidence, a person accused of that kind of an offence is entitled to an acquittal. Here,the decision-maker suggests that the applicant put himself at risk by accepting a fan from another inmate.

The decision-maker does notexplain how that can have any relevance with respect to the knowledge required to have possession. [27] The knowledge element of the offence is satisfied if it is proven beyond a reasonable doubt that the accused person waswilfully blind (R v Jorgensen, (SCC), [1995] 4 SCR 55 [Jorgensen], at para 102). The Supreme Court relied on theauthority of Professor Glanville Williams in his treatise Criminal Law: The General Part (2nd ed 1961) where one reads: . . . A court can properly find wilful blindness only where it can almost be said that the defendant actually knew.

He suspected the fact;he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to denyknowledge. This, and this alone, is wilful blindness. (p. 158) As the Court put it at paragraph 103 of Jorgensen: A finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or stronglysuspected that looking would fix him with knowledge? [28] However, there is the danger of confusing wilful blindness, which is the equivalent to knowledge, and recklessness, whichturns on the notion of risk.

In Sansregret v The Queen, (SCC), [1985] 1 SCR 570 [Sansregret], the Supreme Courtexplains clearly the difference between wilful blindness and recklessness: Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in acourse of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become awareof the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remainignorant.

The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilfulblindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry. (p. 584) [29] In the case at bar, it is less than clear what the decision-maker makes of the risk there would be in getting a fan from anotherinmate. But that quip would appear to be more consonant with recklessness than wilful blindness. The decision-maker identifies a riskand the applicant proceeds in the face of it. That is no more than recklessness.

Both Sansregret and Jorgensen cite the same passagetaken from Professor Williams and reproduced at paragraph 27 of these reasons. It is not enough to have a suspicion; the accused wouldhave to virtually know and intentionally declined to secure the knowledge. Establishing merely that there is a risk in acquiring the fanfrom another inmate does not assist in establishing knowledge and it falls short of establishing wilful blindness.

[30] The statement about chaos that would ensue if the version of the applicant were to be retained is even more problematic. Itsuggests that, for policy reasons, inmates ought not to be believed. The assessment is not to be performed on a case-by-case basis, butrather, as a matter of policy, knowledge is to be assumed, not established beyond a reasonable doubt. [31] The offence of “possession” requires that knowledge be proven.

The decision-maker’s statement leaves the reader with thedistinct impression that it is possible to dispense with the burden of proving knowledge beyond a reasonable doubt when the inmatetestifies that he unknowingly received the contraband from someone else. He seems to suggest that knowledge can be assumed in suchcases otherwise chaos would ensue. [32] It seems to me that similar policy concerns about proving knowledge were raised in Jorgensen (paras 98-99) where theoffence was knowingly selling obscene material.

Other than being able to rely on wilful blindness where the evidence is present, theCourt noted in answering the policy concern that knowledge can be inferred from the evidence such, for instance, as evidence ofclandestine behaviour. Nevertheless, the difficulty of proving knowledge does not diminish the need to prove it. No argument wasoffered in this case to even suggest that the proof of knowledge was not required in the context of a penitentiary. Nothing in the schemeof the Act would allow in my view such relaxation of the requirement of proving beyond a reasonable doubt the essential elements of theoffence.

C. The remedy [33] In this case, the issue becomes whether having the exclusive possession of a fan for two to three weeks and that fan havingsome nick marks around the cap under which the contraband was found constitutes enough evidence to rule beyond a reasonable doubtthat possession was established, which includes the knowledge as well as the control. [34] The powers of the Federal Court on judicial review include the ability to set aside a decision and refer it back fordetermination in accordance with directions (subsection 18.1 (3) of the Federal Courts Act).

This may well include something akin to adirected verdict of acquittal in criminal law. [35] The applicant asked that he be acquitted as a result of a successful judicial review application. I have come to the conclusionthat it would not be appropriate for this Court to seek to substitute itself for the decision-maker. There remains the power in a reviewingcourt to make the decision that ought to have been made.

However, it should be exercised in exceptional circumstances, such as when theoutcome is so clear that to send the matter back would only create delay and add costs without any benefit. [36] I share the view of Justice Mactavish of this Court who ruled in Freeman v Canada (Citizenship and Immigration), 2013 FC1065 [Freeman], that this ought to be done only in the clearest of circumstances. My colleague found support in the decisions of JusticeRothstein, then of this Court. We read in Freeman: [78]

Section 18.1(3)(

b) of the Federal Courts Act provides that this Court may refer a matter back to a decision-maker with suchdirections as the Court may consider appropriate. While this includes directions in the nature of a directed verdict, “this is an exceptionalpower that should be exercised only in the clearest of circumstances”: Rafuse v. Canada (Pension Appeals Board), 2002 FCA 31, [2002] F.C.J. No. 91 at para. 14, citing Xie v. Canada (Minister of Employment and Immigration) (1994), 75 F.T.R. 125,[1994] F.C.J.

No. 286, at paragraph 18. [79] In Xie, Justice Rothstein stated that: “the Court should only issue directions to a tribunal in the nature of a directed verdict, wherethe case is straightforward and the decision of the Court on the judicial review would be dispositive of the matter before the tribunal”: atpara. 18. [80] This “will rarely be the case when the issue in dispute is essentially factual in nature”: Rafuse, above at para. 14, citing Ali v.Canada (Minister of Employment and Immigration), (FC), [1994] 3 F.C. 73, 76 F.T.R. 182 (T.D.). [81] The issues in this case are largely factual, and the evidence, both public and confidential, should be evaluated in its totality by theofficials who have been assigned the responsibility for making such assessments by Parliament. [37] Here, the only issue to be resolved is whether the evidence left before the decision-maker, once is removed the priorconviction which was not put in evidence, and comments about risks and chaos are ignored, proves knowledge beyond a reasonabledoubt.

This is a decision Parliament has left to an administrative tribunal to make. [38] I would not allow the institution to supplement its case or to start anew. The evidence has been adduced and the case heard.The problem that has been encountered is solely with respect to the decision itself. Hence, the redetermination will be limited to a newdecision on the knowledge element of the offence charged. [39] Finally, given the views expressed by this independent chairperson, the matter is remitted to a differently constituted tribunalon the limited question to be determined.

I add that the parties are entitled to make fresh representations, on the basis of the evidence ledat trial, before the differently-constituted decision-maker. The new independent chairperson will have to decide if the submissions mustbe in writing or presented orally. VI. Costs [40] Both parties sought their costs in case of success. The applicant was successful in having the decision quashed. Although theapplicant is not granted an acquittal in the nature of a remedy akin to a directed verdict, he has largely prevailed.

At the hearing, counselfor the applicant indicated that an award of costs of $1000.00 would allow to cover the expenses incurred. The draft bill of costssubmitted by the Crown was significantly higher than the applicant’s request. It seems to me that the applicant’s requested amount isvery reasonable. Pursuant to Rule 400, an amount of $1000.00, all-inclusive, is awarded in favour of the applicant.

JUDGMENT in T-1881-16 THIS COURT’S JUDGMENT is that the judicial review application is granted. The matter is remitted to a differently-constituted tribunal on the limited question of determining whether there is guilt beyond a reasonable doubt on the record as already constituted, once is removed from consideration a prior conviction and are expunged comments about the “risk” encountered when receiving goods from other inmates and the “chaos” that would ensue if the defence of absence of knowledge offered in this case were to be accepted in disciplinary cases in penitentiaries.

Costs in the amount of $1000.00, all-inclusive, are awarded to the applicant. "Yvan Roy" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1881-16 STYLE OF CAUSE: MARCUS CHARLES v ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Kingston, Ontario DATE OF HEARING: April 25, 2017 JUDGMENT AND REASONS ROY J. DATED: May 2, 2017 APPEARANCES : Paul Quick Sean Ellacott For The Applicant Amy Smeltzer For The Respondent SOLICITORS OF RECORD : Queen’s Prison Law Clinic Kingston, Ontario For The Applicant William F. Pentney Deputy Attorney General of Canada Ottawa, Ontario For The Respondent