Ryan Kupsar Appellant (Applicant) v. Regina Provincial Correctional Centre, 2020 SKCA 142

Court of Appeal for Saskatchewan Docket: CACV3320 Citation: Kupsar v Regina Provincial Correctional Centre , 2020 SKCA 142 Date: 2020-12-31 Between: Ryan Kupsar Appellant (Applicant) And Regina Provincial Correctional Centre Respondent (Respondent) And Attorney General for Saskatchewan Intervenor (Non-party) Before: Ottenbreit, Whitmore and Barrington-Foote JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr.

Justice Whitmore On appeal from: QBG 1129 of 2018, Regina Appeal heard: January 14, 2020 Counsel: Pierre Hawkins for the Appellant Laura Mazenc for the Respondent Dana Brûlé for the Intervenor Barrington-Foote J.A. I. Introduction [ 1 ] On March 19, 2018, Ryan Kupsar, who was then an inmate at the Regina Provincial Correctional Centre [RPCC], was convicted by a discipline panel [discipline decision] of a major disciplinary offence pursuant to The Correctional Services Regulations, 2013 , RRS c C-39.2 Reg 1 [ Regulations ]. Mr.

Kupsar appealed his conviction to the Director of the Regina Provincial Correctional Centre [Director] pursuant to s. 80 of The Correctional Services Act, 2012 , SS 2012, c C-39.2 [ Act ]. His appeal was denied [Appeal decision]. Mr. Kupsar then applied to the Court of Queen’s Bench for judicial review of the Appeal decision. On September 27, 2018, that application was dismissed [QB decision] by a judge of that Court [Chambers judge]. [ 2 ] Mr. Kupsar has appealed the QB decision.

He submits that his conviction unjustifiably breached his right to be presumed innocent pursuant to s. 7 of the Canadian Charter of Rights and Freedoms [ Charter ], as it was based solely on the allegation contained in the notice of charge which initiated the disciplinary process. He also submits that the disciplinary hearing was conducted in a manner that breached his right to procedural fairness. [ 3 ] I have concluded that the Chambers judge erred in finding that Mr. Kupsar’s right to a fair hearing was not breached and, as result, that the discipline decision must be quashed.

Having decided on that basis, I do not find it necessary to resolve the Charter issues identified by Mr. Kupsar. My reasons follow. II. Act and Regulations [ 4 ] Inmate discipline, including the appointment of discipline panels, charges, hearings and appeals, is dealt with in

Part VIII of the Act . The following provisions of that Part are of particular interest on this appeal: 73(1) An inmate charged with a disciplinary offence must be given a written notice of the charge in accordance with the regulations.

(2) The notice of the charge must: (

a) state whether the charge is a major disciplinary offence or a minor disciplinary offence; and (

b) include the prescribed information. 74 A discipline panel authorized to conduct the disciplinary proceedings shall deal with the charge in accordance with the regulations. …

80(1) An inmate who is the subject of a decision with respect to an inmate disciplinary proceeding that does not impose a forfeiture of remission pursuant to clause 77(1)(

h) may appeal the decision to the director of the correctional facility by providing the director of the correctional facility with a notice of appeal within five business days after the decision. …

(3) An appeal pursuant to this

section must be dealt with and determined in accordance with the regulations. … [ 5 ]

Section 54 of the Regulations lists disciplinary offences, including the charge levied against Mr. Kupsar: 54 …

(2) No inmate shall: … (

g) verbally, physically or by gesture threaten another person[.] [ 6 ]

Section 56 specifies the content of the notice of charge that must be served on the inmate: 56(1) For the purposes of subsection 73(2) of the Act , a notice of charge must: (

a) describe the conduct that is the subject of the charge, including the time, date and place of the alleged disciplinary offence; (

b) contain a

summary of the evidence to be presented in support of the charge at the hearing; and (

c) be signed by the designated staff member who issued the charge. … [ 7 ] Sections 59 to 68 deal with the conduct of disciplinary hearings, evidence and the standard of proof: 59(1) A hearing of a major disciplinary offence must be conducted by a discipline panel mentioned in subsection 52(1). …

(3) A hearing of a disciplinary offence must take place as soon as is reasonably practicable but in any event not more than two business days after the inmate receives written notice of the charge of a disciplinary offence, unless the inmate consents to a longer period. … 60(1) In all disciplinary proceedings, the discipline panel shall: (

a) provide the inmate with a full and fair hearing; (

b) conduct a thorough and objective inquiry into all matters relating to the charge ; (

c) maintain control of the hearing; and (

d) ensure that continuity of possession of evidence has been maintained and that the evidence presented is relevant to the charge. … 61(1) An inmate charged with a major disciplinary offence has the right: (

a) to be present at the hearing unless: (

i) his or her presence would jeopardize the safety of any person present at the hearing; (ii) the inmate waives, in writing, this right or refuses to appear; or (iii) the presence of the inmate might otherwise be disruptive to proceedings; (

b) to be advised as to the nature and factual basis of the charge; (

c) to respond to the charge either orally or in writing; and (

d) to present information relevant to a defence of the charge.

(2) If an inmate charged with a major disciplinary offence wishes to retain a lawyer, or, with the approval of the chairperson of the discipline panel, another person who can assist the inmate to adequately present a defence, the inmate shall be given a reasonable opportunity to do so. …

(5) The discipline panel shall give the inmate who is charged an opportunity at the hearing to: (

a) question witnesses through the chairperson, introduce evidence and examine exhibits and documents to be considered in the making of the decision; and (

b) make oral or written representations during all phases of the hearing, including representations respecting the appropriate sanction. … 64(1) An inmate charged with a disciplinary offence may request the discipline panel to allow a person having information relevant to the charge to attend a hearing and present the information to the discipline panel. … 65 A discipline panel is not bound by the legal rules of evidence and in particular may: (

a) receive and accept such evidence and information on oath, by affidavit or otherwise, as it considers appropriate; and (

b) refuse to accept any evidence that the discipline panel does not consider relevant or trustworthy. 66(1) If the person who prepared the notice of charge is unavailable at the time of the hearing, the discipline panel shall adjourn the hearing to permit that person to attend unless: (

a) the inmate admits committing the disciplinary offence; (

b) there is another witness called who can provide sufficient information about the disciplinary offence; or (

c) the inmate consents to proceeding in the absence of the person who prepared the notice of charge. … 68 A discipline panel shall not find an inmate responsible for a disciplinary offence unless it is satisfied on a balance of probabilities that the inmate committed that offence. [ 8 ] The procedure on a s. 80 appeal to the Director is specified by s. 75 of the Regulations , which includes the following provisions as to the evidence on such an appeal: 75(1) On receipt of an appeal pursuant to subsection 80(1) of the Act , the director may consider: (

a) the written record of the discipline panel; (

b) the decision of the discipline panel; (

c) any sanction imposed by the discipline panel; (

d) any audio or video record of the hearing; (

e) any oral or written representations that the director determines to be relevant; and (

f) any new evidence the director determines to be relevant. III. Background A. The charge, discipline hearing and discipline decision [ 9 ] The charge against Mr. Kupsar was specified in a Notice of Charge Report [charge report] pursuant to s. 72 of the Act . The charge report included the following

section [charge details] signed by Daniel Lemay, a corrections officer: Details of Contravention (include date, time, names of persons directly involved, and names of witnesses) On March 3/2018 at approx. 9:45 HRS (I/M RYAN KUPSAR -) this writer took I/M Kupsar to the clinic. Upon returning to unit 1B, I/M Kupsar stated that nurse Rakesh was a fucken asshole and he cannot wait to see him on the street[.] [ 10 ] On March 5, 2018, the date initially set for the hearing, Mr. Kupsar advised the discipline panel that he wanted a lawyer to represent him on the charge.

When asked if he wanted CO Lemay present at the hearing, he said he did not. The hearing was adjourned to March 9, and again to March 19, to enable Mr. Kupsar to retain counsel. [ 11 ] On March 19, Mr. Kupsar attended with his then counsel, Daniel LeBlanc. Following a brief introduction, Shane Zess, the Assistant Deputy Director of Operations for the RPCC [ADD Zess] who chaired the discipline panel, read the charge details to Mr. Kupsar. The following exchange then occurred: MR. ZESS: … Okay, how do you plead to this? That’s all I’m going to enter on this one. MR. KUPSAR: Not guilty.

MR. ZESS: Not guilty. I’m done. Go ahead. MR. LEBLANC: That’s the institution’s entire case? MR. ZESS: Yeah, I’m just going to go with the staff’s statement, what they wrote on charge here, “That he just can’t wait to see him on the street,” signed off by C.W. Dan Lamay (PHONETIC), who was not asked to be here and I’m not going to even dig into the institutional log. I don’t think they sent you guys a copy of it or anything, if there is one, so, you know, you guys aren’t prepared to question back if there was anymore information on it. We’re just going to move forward with this, okay? [ 12 ] Mr.

LeBlanc then took the position that the RPCC had not discharged its onus to prove the charge on a balance of probabilities, as the charge details did not constitute admissible evidence, and there was accordingly no evidence at all. He argued that the charge details were no more than an allegation. In response, ADD Zess responded by offering the following explanation: MR. ZESS: So the institution’s position, for the record, is that when we receive these details of the contravention this is the evidence that we go with on -- on the majority of our cases.

That when people come to tribunal we do not dig into, pull up incident reports and such. Especially in a manner of -- of one person hearing another person threatening somebody. Now, if I was going to pull up an institutional log, probably the only one that would be on there would have been Mr. Lamay’s report, so it would have been the same thing, it would have been -- you could argue it would be the allegation of -- by the same person. So there -- there lies the -- the burden that another person must be around, I would assume is what you’re pointing out, or trying get to?

That this person can’t charge him and also present evidence. So with that the institution is going to accept the writings -- written statement here as evidence and if you have no more argument, we’re just going to find it substantiated. … [ 13 ] The panel proceeded to sentence Mr. Kupsar to be confined in his cell for three days, other than time for work. B. The Appeal decision [ 14 ] Mr. Kupsar’s appeal to the Director pursuant to s. 80 of the Act was in the form of a letter [Director appeal notice] from Mr. LeBlanc. That notice identifies the following grounds: 1.

The Panel improperly treated the March 3, 2018 Notice of Charge Report (“Charge Sheet”) as evidence against Mr. Kupsar; 2. The Panel found Mr. Kupsar guilty on the basis of the Charge Sheet alone; 3. By treating the Charge Sheet as sufficient to establish Mr. Kupsar’ s guilt, the Panel utilized a process which unjustifiably interfered with Mr. Kupsar’s right to be presumed innocent, pursuant to s. 11(

d) of the Canadian Charter of Rights and Freedoms . 4. The Panel improperly required Mr. Kupsar to prove that he was innocent of the charge; the Panel did so through accepting the Prison’s charge against Mr. Kupsar as presumptive proof of Mr. Kupsar’s guilt. [ 15 ] The appeal was dismissed on March 27, 2018, by Danae Ackles, the Acting Deputy Director Standards and Communication at the RPCC [ADD Ackles], who was a delegate of the Director. In the Appeal decision, ADD Ackles stated that the discipline decision was reviewed on a standard of reasonableness.

It confirms that she listened to the recording of the discipline hearing and says that the RPCC’s position had been that the charge report was evidence. It then says this: • I have reviewed the charge report and the incident report, both written by CO Lemay on March 3, 2018. I have also reviewed reports on the CJMS written on March 3, 2018 which describe your behavior and comments made in the Medical Clinic just prior to the incident; • Discipline panel determines guilt based on the balance of probabilities. If they feel that the likelihood of your guilt is over 51%, they will find you guilty.

The details of the incident are clearly stated in both the Notice of Charge Report and in the incident report. The panel found you guilty based on the balance of probabilities on the information provided in the Notice of Charge Report. I find that the action taken by ADDO Zess and ADDO Tighe has complied with the provisions of The Correctional Services Act, 2012 and The Correctional Services Regulations, 2013 , and that you were afforded procedural fairness based on the principles of administrative law.

For the reasons outlined above, I confirm the decision that is the subject of this appeal and dismiss the appeal. … [ 16 ] Mr. Kupsar did not participate in the appeal, and there is nothing in the record to suggest that he was given the opportunity to do so. That is so despite the fact Mr. LeBlanc advised in the Director appeal notice that Mr. LeBlanc wished to participate and make representations. Nor was Mr. Kupsar provided with the incident report prepared by CO Lemay or the other reports on the “CJMS” that

were considered by ADD Ackles. Mr. Kupsar received these documents only when he received the record filed by the RPCC in response to his application for judicial review of the Appeal decision. [ 17 ] The additional documents considered by ADD Ackles are four log detail reports prepared by RPCC staff who observed Mr. Kupsar’s actions immediately prior to or at the time he made the statement which resulted in the charge. Each of these brief reports differs from the others and contains either different or more information than the charge details.

The log detail report prepared by CO Lemay contains the following information: WHO INVOLVED: STAFF: CO D. Lemay INMATES: KUPSAR, Ryan William … OTHER: Dr. Blignaut, nurse Rakesh WHAT TOOK PLACE: On March 3, 2018 at approximately 9:45 hours, this writer escorted inmate Ryan Kupsar…to the clinic for a Dr’s appointment. While in the clinic with Dr. Blignaut, this writer heard the Dr. raise his voice as he was attempting to explain to inmate R. Kupsar he could not have any pain killer he wanted, the RPCC has strict procedures and restrictions. Dr. Blignaut explained he would review inmate Kupsar’s file and

schedule a later appointment to meet Kupsar’s needs for an appropriate pain relief. When leaving the clinic, inmate R. Kupsar said this will be good for a legal lawsuit. This writer then escorted inmate R Kupsar back to unit 1B. While removing the handcuffs from inmate R. Kupsar, he said to this writer and the two unit staff that nurse Rakesh is a fucken asshole and he cannot wait to see him on the street. [ 18 ] The log detail report prepared by Pamela Bodnaresk identifies the staff involved in that part of the incident which occurred in the medical clinic as CO Bodnaresk, CO Krinke, and CO Lemay.

Her description of what took place is as follows: On March 3, 2018 at approximately 10:00am this writer was working in the medical clinic while I/M KUPSER [ sic ] was being seen by Dr. Blignaut. This writer heard I/M Kupser [ sic ] begin to raise his voice at Dr. Blignaut. Dr. Blignaut told I/M Kupser [ sic ] that he would not be receiving the drug (Morphine) that he was requesting. Dr. Blignaut continued to explain to I/M that he would be exploring other options for his pain management. This angered I/M Kupser [ sic ] further. This writer joined CO KRINKE and CO Lemay in the treatment room.

I/M Kupser [ sic ] was then asked to return [to] his unit and told the Dr. would review his file at a later time. On the way out the door of the clinic I/M Kupser [ sic ] muttered that he would be taking legal action under his breath. [ 19 ] The log report prepared by CO Olivia Krinke was substantially to the same effect as that of CO Bodnaresk. After describing the interaction between Mr. Kupsar and Dr.

Blignaut, she reported that “[o]n the way out the door of the clinic I/M KUPSER [ sic ] muttered that this would create a lawsuit”. [ 20 ] Finally, the log report prepared by ADD Tony Tighe contained the following brief report: “Threatened Nurse Rakesh ‘to get him on the street’”. IV. The QB Decision [ 21 ] In the QB decision, the Chambers judge stated that Mr. Kupsar alleged that the Director made two errors in the Appeal decision. First, Mr.

Kupsar argued that the Director erred by failing to overturn the discipline panel’s decision, as there was no evidence of guilt capable of supporting proof on a balance of probabilities that Mr. Kupsar had committed the offence. Second, Mr. Kupsar alleged that by accepting the charge details as presumptive proof of his guilt, the discipline panel had unjustifiably infringed his s. 11(

d) Charter right to be presumed innocent and his s. 7 Charter right to life, liberty and security of the person. [ 22 ] The Chambers judge adopted a reasonableness standard of review as to the discipline panel’s

interpretation of its own legislation and its assessment of the evidence and findings of fact. He described that standard as being whether the decision is transparent, justifiable, intelligible and within the range of acceptable outcomes, relying on Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 , [2009] 1 SCR 339, and Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190. [ 23 ] The Chambers judge found that the charge report set out the evidence of the charge.

He concluded that this evidence could not be characterized as presumptive or as creating a reverse onus, but rather, was “a piece of evidence that left alone and unattended to could on the balance of probabilities result in a finding against him” (QB decision at para 15).

As to the question of whether the discipline panel was entitled to accept the charge detail as evidence, the Chambers judge found that the discipline panel’s decision that s. 65 of the Regulations allows it to accept that evidence was “rational and defeasible [ sic ] and falls within the range of reasonable outcomes and attracts deference from this Court” (QB decision at para 16). [ 24 ] In the result, the Chambers judge found that the Appeal decision was reasonable and dismissed the application. Having reach that conclusion, he did not find it necessary to address the Charter arguments. V. Analysis A.

Preliminary matters: mootness and new issues on appeal [ 25 ] I would first note that there is no evidence that Mr. Kupsar was an inmate in any correctional institution at the time of this appeal. However, the RPCC did not suggest that this appeal is moot. There are various potential explanations for that choice, and as such, it is not necessary to consider the issue further.

[26] However, the RPCC did submit that the Court should refuse to consider the issue of procedural fairness. It says that issue wasnot squarely raised in the Court of Queen’s Bench. It also argues that procedural fairness should not be considered as it was not put to thediscipline panel, with the result that the panel did not have the opportunity to provide its views as to factors which might support itsapproach.

It noted, as potential examples of such factors, security concerns, the number of discipline charges, “institutional knowledge”,and the difficulty in obtaining documents. [27] Further, both the RPCC and the Attorney General stressed that, on this appeal, Mr. Kupsar had for the first time relied on s. 7 ofthe Charter in support of a procedural fairness argument.

In this context, they relied on the general rule that constitutional argumentsshould not be raised for the first time on appeal: see, for example, Merck Frosst Canada Ltd. v Wuttunee, 2008 SKCA 125, 314 Sask R 90;Cameron v The Saskatchewan Institute of Agrologists, 2018 SKCA 91 at paras 61–​63. As they correctly noted, courts are reluctant todecide constitutional issues in a vacuum; that is, in the absence of adjudicative facts: Danson v Ontario (Attorney General), (SCC), [1990] 2 SCR 1086. [28] Mr.

Kupsar does not suggest the procedural fairness issue as it was presented on this appeal was squarely before the Chambersjudge, ADD Ackles or the discipline panel. Rather, he submits that while the fairness issue has been framed differently on this appeal, ithad been central to the proceedings. He notes that the Director appeal notice, among other things, alleges that the discipline panel erredbecause it “found Mr. Kupsar guilty on the basis of the Charge Sheet alone”.

He also points out that procedural fairness was raised in hisbrief on the judicial review. [29] RPCC conceded that it is within this Court’s discretion to consider this issue. The Court exercises that discretion on a principledbasis.

The general rule is that issues not raised at trial or, as here, in Chambers, cannot be raised for the first time on an appeal to thisCourt: see, for example, Perka v R, (SCC), [1984] 2 SCR 232 at 240; Phillips Legal Professional Corporation v Vo,2017 SKCA 58 at para 43, [2017] 12 WWR 779; and Saskatchewan Crop Insurance Corporation v McVeigh, 2018 SKCA 76 at paras131–132, 428 DLR (4th) 122. However, the general rule is just that. As Watt J.A. commented in R v Reid, 2016 ONCA 524 at para 38,338 CCC (3d) 47, this rule is “preclusive but not unyielding”.

In R v Ahmed, 2019 SKCA 47, [2019] 10 WWR 99, the Court described thecriteria to be applied in exercising the discretion: [15] … The decision as to whether to entertain a new argument on appeal is discretionary and is “to be guided by the balancing of theinterests of justice as they affect all parties” (Kaiman v Graham, 2009 ONCA 77 at para 18, 245 OAC 130): see also R v Reid, 2016ONCA 524 at para 44, 338 CCC (3d) 47 [Reid] (leave to appeal to the SCC denied ). In R v Gill, 2018 BCCA 144, 26MVR (7th) 138, Fitch J.A. usefully summarized the issue as follows: [12] In Quan v.

Cusson, 2009 SCC 62 at paras. 36–38, the majority of the Court laid out a framework for determining whether topermit a party to raise a new issue on appeal. The first question is whether the issue is new. If so, the second question is whether theevidentiary record and the interests of justice support granting an exception to the general rule against raising new issues on appeal.

Indetermining whether the interests of justice warrant an exception to the general rule, it is appropriate to consider whether entertaining theissue for the first time on appeal might lead to a different ultimate outcome for the parties: L.S. v. G.S. at para. 112. As Binnie J. said inPerformance Industries Ltd. v.

Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19 at para. 33, a court may hear a new issue on appeal ifrefusing leave would risk an injustice. [30] Harvard Developments Inc. v Park Manor Condominium Corporation, 2018 SKCA 81, [2019] 2 WWR 227, demonstrates theapplication of the rule in the context of concerns similar to those raised in this case.

Justice Ryan-Froslie explained why the Court decidedit would not allow the new argument to be raised in that case: [24] In my view, the appellants should not be allowed for the first time on appeal to raise the Board’s conduct as a basis for grantingthe prohibition order. This is so because to allow the argument would deny Park Manor the opportunity to file evidence explaining orclarifying the conduct in issue.

Moreover, this Court would be denied the Chambers judge’s ruling and insight with respect to that issue.As stated by Dickson J., as he then was, in R v Perka, (SCC), [1984] 2 SCR 232 at 240: In both civil and criminal matters it is open to a respondent to advance any argument to sustain the judgment below, and he is not limited toappellants’ points of law.

A party cannot, however, raise an entirely new argument which has not been raised below and in relation towhich it might have been necessary to adduce evidence at trial. ... (Emphasis added) [25] This principle, while not absolute, has been repeated by this Court in numerous decisions … [31] The RPCC and the Attorney General presented a well-reasoned argument on this point. There is no doubt that Mr. Kupsar’sarguments below focused on whether the charge details were properly admitted as evidence, and on the effect of admitting that evidenceon the onus of proof and the presumption of innocence.

However, the procedural fairness issue not only surfaced in the course of theseproceedings, but was decided by ADD Ackles in the Appeal decision: I find that the action taken by ADDO Zess and ADDO Tighe has complied with the provisions of The Correctional Services Act, 2012 andThe Correctional Services Regulations, 2013, and that you were afforded procedural fairness based on the principles of administrative law. [32] Further, the procedural fairness issue is, in the circumstances of this case, closely related to the evidentiary issue identified byMr. Kupsar.

The discipline panel was obliged by s. 60 of the Regulations to “conduct a thorough and objective inquiry into all mattersrelating to the charge”. This was an inquisitorial process. The discipline panel nonetheless chose to rely solely on the charge details, or,cast in terms of the s. 60 obligation, chose not to make any inquiries or to adduce any evidence other than the charge details.

The choice toproceed in that fashion can as readily be characterized as an issue of procedural fairness as an issue of admissibility, the burden of proofand the presumption of innocence. [33] It is apparent that at some level, ADD Zess understood the relationship between these issues. When Mr. Kupsar’s counsel – inapparent surprise – asked if the charge details were the RPCC’s entire case, ADD Zess explained that he would not provide an institutionallog, despite that the log had not been requested. He suggested that since the log had not been disclosed to Mr. Kupsar, Mr.

Kupsar and hiscounsel would not be prepared to question what might be disclosed. Similarly, when Mr. LeBlanc argued that there was no admissible

evidence, and thus a failure by the RPCC to prove the charge on a balance of probabilities, ADD Zess again explained why it would be ofno use to pull up an institutional log, as CO Lemay’s report was “probably the only one that would be on there … so it would have beenthe same thing”. [34] In my view, these comments by ADD Zess demonstrate that he grasped the connection between Mr. Kupsar’s objections to thepanel’s decision to rely solely on the charge details, and the failure by the RPCC to “dig into” the matter and pull up “incident reports andsuch” relevant to the charge.

In substance, his explanation was that the charge details were sufficient, as there was nothing to suggestfurther inquiries were needed. His attempt to explain that choice is entirely understandable in light of the discipline panel’s obligation to“conduct a thorough and objective inquiry into all matters relating to the charge”. [35] Taking all of this into account, I conclude it is appropriate to permit Mr. Kupsar to raise the issue of common law proceduralfairness.

Although it is possible the discipline panel could have offered a more complete explanation for its procedural decision, ADDZess explained why the RPCC relied on charge details alone in this case, and why it did not consider it necessary or useful to inquirefurther. The case law recognizes that disciplinary charges are a common occurrence, that security concerns may arise in the context ofprison disciplinary charges and that the timely disposition of such charges is important.

The question of whether further evidence isrequired in relation to a new issue on appeal depends on the circumstances, and it is not necessary to have further information to properlydecide this appeal. Further, given how I will dispose of the issue, it is not necessary to consider the Charter issue raised by Mr. Kupsar inrelation to procedural fairness. That was a matter of particular concern to the RPCC and the Attorney General. B. Standard of review [36] The decision under appeal is that of the Chambers judge.

This Court’s role is to decide whether the Chambers judge selectedthe correct standard of review and correctly applied that standard to his review of the Appeal decision: Kawula v Institute of CharteredAccountants of Saskatchewan, 2017 SKCA 70 at para 116, 24 Admin LR (6th) 112; Dr. Q. v College of Physicians and Surgeons ofBritish Columbia, 2003 SCC 19 at paras 43–44, [2003] 1 SCR 226.

In practice, this means that once the appellate court has identified thecorrect standard of review, it “steps into the shoes” of the lower court, and applies that standard to the decision of the administrativetribunal: Merck Frosst Canada Ltd. v Canada (Health), 2012 SCC 3 at para 247, [2012] 1 SCR 23; Harvey v Saskatchewan Legal AidCommission, 2020 SKCA 110 at para 42. [37] For the reasons explained above, this appeal will be decided on the basis of Mr. Kupsar’s allegation that the Chambers judgeerred when he failed to decide that Mr. Kupsar was denied procedural fairness.

The standard of review relating to an alleged error of thatkind is described in Saskatchewan as correctness: Mercredi v Saskatoon Provincial Correctional Centre, 2019 SKCA 86 at para 26,[2020] 4 WWR 212 [Mercredi]; Risseeuw v Saskatchewan College of Psychologists, 2019 SKCA 9 at paras 63–64, [2019] 2 WWR452; Eagle’s Nest Youth Ranch Inc. v Corman Park (Rural Municipality), 2016 SKCA 20 at paras 21–26, [2016] 7 WWR 35; Saskatoon(City) v Amalgamated Transit Union, Local 615, 2017 SKCA 96 at paras 24–​32, [2018] 4 WWR 822; Canada (Citizenship andImmigration) v Khosa, 2009 SCC 12 at para 43, [2009] 1 SCR 339.

In substance, that means an appeal court must determine whether theprocedure at issue was fair in the circumstances. [38] The Chambers judge applied the reasonableness standard of review. He cannot be criticized for doing so, given the manner inwhich the issues were presented to him. Indeed, he adopted the correct standard of review in relation to the issues he decided. The fact thatI will dispose of this appeal on the procedural fairness ground means that I must determine whether the conclusion in the Appeal decisionthat Mr. Kupsar was afforded procedural fairness was correct.

In practice, that means I must decide whether the discipline panel’s choiceof that procedure was fair in the circumstances. C. Procedural fairness [39] As is noted above, an inquiry into procedural fairness is contextual.

In Canada (Minister of Citizenship and Immigration) vVavilov, 2019 SCC 65, 441 DLR (4th) 1, the majority summarized the nature of this contextual inquiry, including the non-exhaustive listof factors identified in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817, as follows: [77] … The duty of procedural fairness in administrative law is “eminently variable”, inherently flexible and context-specific: Knight v.Indian Head School Division No. 19, (SCC), [1990] 1 S.C.R. 653, at p. 682; Baker v.

Canada (Minister of Citizenshipand Immigration), (SCC), [1999] 2 S.C.R. 817, at paras. 22-23; Moreau-Bérubé, at paras. 74-75; Dunsmuir, at para. 79.Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirementsthat the duty imposes are determined with reference to all of the circumstances: Baker, at para. 21. In Baker, this Court set out a non-exhaustive list of factors that inform the content of the duty of procedural fairness in a particular case, one aspect of which is whetherwritten reasons are required.

Those factors include: (1) the nature of the decision being made and the process followed in making it; (2)the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimateexpectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision makeritself: Baker, at paras. 23-27; see also Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v.

Lafontaine (Village), 2004 SCC48, [2004] 2 S.C.R. 650, at para. 5. … [40] These principles were reviewed in Mercredi (at paras 26–29), where the Court found that there had been a breach of proceduralfairness in the context of a decision at the Saskatoon Provincial Correctional Centre to move an inmate to a different unit. As in this case,the correctional centre raised concerns as to the potential impact of a decision that would enhance procedural safeguards, and thus, as tothe need to take account of the reasons given by correctional officials as to why certain documents are not disclosed to inmates.

The Courtcharacterized the correct approach to this question as follows: [29] This attentiveness to the decision-maker’s choice has sometimes been characterized as a measure of deference: see, for example,Re: Sound v Fitness Industry Council of Canada, 2014 FCA 48 at para 42, 72 Admin LR (5th) 1. However, as this Court noted inRisseeuw at paragraphs 63–64, that is not the law in Saskatchewan. Given that the standard of review is correctness, attentiveness to thedecision-maker’s choices is better characterized as a recognition of the fact that the demands facing the decision-maker are relevant in the

contextual analysis, that the decision-maker may have insight about the circumstances that should inform the procedural choice, and thatparticipatory fairness can often be achieved in more than one way. The ultimate issue is always whether the process accords with theunderlying values reflected by the duty of fairness. … (Emphasis added) [41] In this case, the detailed provisions relating to the disciplinary process in the Act and Regulations are a key part of theprocedural puzzle. Those provisions grant the inmate robust participatory rights, despite the institutional context.

Those rights begin withthe charging requirements, which are designed to ensure that the inmate has notice of the particulars of the charge and of the evidence thatwill be led. There is a right to be represented by counsel, to attend the hearing, to present evidence, to examine witnesses, and to make oralor written representations.

These specific procedural rights – which reflect the potentially serious short and long-term impacts of disciplinedecisions – are imposed within the framework of the overarching obligations of the discipline panel pursuant to s. 60 of the Regulations: 60(1) In all disciplinary proceedings, the discipline panel shall: (

a) provide the inmate with a full and fair hearing; (

b) conduct a thorough and objective inquiry into all matters relating to the charge; (

c) maintain control of the hearing; and (

d) ensure that continuity of possession of evidence has been maintained and that the evidence presented is relevant to the charge. [42] The obligation imposed by s. 60(1)(

b) is of particular importance in the circumstances of this case. The procedural requirementsthat apply to an inquisitorial model, like those that apply in an adversarial situation, are not one size fits all. That said, there is usefulguidance in the case law. In Winko v British Columbia (Forensic Psychiatric Institute), (SCC), [1999] 2 SCR 625, forexample, the procedural question related to annual reviews of patients who had been found not criminally responsible.

The Court describedthe system established by the Criminal Code to deal with the ongoing restraint of these patients, and the duties of the Review Board, asfollows: 54 The regime’s departure from the traditional adversarial model underscores the distinctive role that the provisions of

Part XX.1 playwithin the criminal justice system. The Crown may often not be present at the hearing. The NCR accused, while present and entitled tocounsel, is assigned no burden. The system is inquisitorial. It places the burden of reviewing all relevant evidence on both sides of the caseon the court or Review Board.

The court or Review Board has a duty not only to search out and consider evidence favouring restrictingNCR accused, but also to search out and consider evidence favouring his or her absolute discharge or release subject to the minimalnecessary restraints, regardless of whether the NCR accused is even present.

This is fair, given that the NCR accused may not be in aposition to advance his or her own case. … 55 As a practical matter, it is up to the court or Review Board to gather and review all available evidence pertaining to the four factorsset out in s. 672.54: public protection; the mental condition of the accused; the reintegration of the accused into society; and the otherneeds of the accused. … (Emphasis in original) [43] This analysis has been repeatedly applied: see, for example, Magee (Re), 2020 ONCA 418; Tompkins (Re), 2018 ONCA 654 atpara 24; R v Denny, 2019 NSCA 93 at para 20; and Starz (Re), 2015 ONCA 318 at paras 120–121, 324 CCC (3d) 228.

It is, of course, areflection of the particular Criminal Code provisions and other contextual factors that inform the fairness analysis. However, the broadprinciple reflected in this reasoning – that is, that the decision-maker in an inquisitorial model is obliged to search out and review evidenceon both sides of the case – has broader application. In particular, it has been repeatedly applied to disciplinary proceedings inpenitentiaries.

In Ayotte v Canada (Attorney General), 2003 FCA 429, 240 DLR (4th) 471 [Ayotte], for example, Létourneau J.A. had thisto say: [7] The offence that the appellant was charged with was committed in a penitentiary where the maintenance of order and discipline aswell as a fast and efficient system for cracking down on offences are necessary to achieve the objectives of the correctional system. … [8] This said, it is now accepted law, and MacGuigan J.A. himself acknowledged this in a subsequent decision, Re MacDonald et al. v.Kindler (1987), (FCA), 41 D.L.R. (4th) 78 (F.C.A.), that the chairperson of a disciplinary court has an obligation to actfairly in conducting the proceedings.

More specifically, as Mr. Justice Dickson stated in Martineau v. Matsqui Institution DisciplinaryBoard, (SCC), [1980] 1 S.C.R. 602, at page 631, “the simple question to be answered is this: Did the tribunal on thefacts of the particular case act fairly toward the person claiming to be aggrieved?” [44] Justice Létourneau then cited (at para 9) six principles listed in Hendrickson v Kent Institution (1990), 32 FTR 296 (TD),including two that are of particular relevance here: … 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. 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 responsiblefor conducting the hearing to explore every conceivable defence, although there is a duty to conduct a full and fair inquiry or, in otherwords, examine both sides of the question.

(Emphasis in Ayotte) See also, for example, Ross v Canada, 2003 FCA 296 at para 30, 242 FTR 320; Perron v Canada (Attorney General), 2020 FC 741 atparas 51–53. These two principles accord with the obligations imposed on a disciplinary panel pursuant to ss. 60(1)(

a) and (

b) of theRegulations. [45] The case law relating to penitentiary discipline has also emphasized the need to strike a balance between procedural fairnessand the reality that provision for fast and efficient disciplinary proceedings is required to maintain order in a correctional institution.

Thislong-established point was made, for example, by Le Dain J. in Cardinal v Director of Kent Institution, (SCC),[1985] 2 SCR 643 at 654: The question, of course, is what the duty of procedural fairness may reasonably require of an authority in the way of specific proceduralrights in a particular legislative and administrative context and what should be considered to be a breach of fairness in particularcircumstances. The caution with which this question must be approached in the context of prison administration was emphasized by thiscourt in Martineau (No. 2), supra.

Pigeon J., which whom Martland, Ritchie, Beetz, Estey and Pratte JJ. concurred, said at p. 637: I must, however, stress that the Order issued by Mahoney J. deals only with the jurisdiction of the Trial Division, not with the actualavailability of the relief in the circumstances of the case.

This is subject to the exercise of judicial discretion and in this respect it will beessential that the requirements of prison discipline be borne in mind, just as it is essential that the requirements of the effectiveadministration of criminal justice be borne in mind when dealing with applications for certiorari before trial, as pointed out in AttorneyGeneral of Quebec v. Cohen [ (SCC), [1979] 2 S.C.R. 305].

It is specially important that the remedy be granted only incases of serious injustice and that proper care be taken to prevent such proceedings from being used to delay deserved punishment so longthat it is made ineffective, if not altogether avoided. [46] As I have indicated above, I agree with the RPCC that the impact of this decision on the operation of correctional facilities mustbe taken into account in the analysis. [47] How, then, do these principles apply in Mr. Kupsar’s case?

As I have noted, s. 56 of the Regulations specifies the content of anotice of charge: 56(1) For the purposes of subsection 73(2) of the Act, a notice of charge must: (

a) describe the conduct that is the subject of the charge, including the time, date and place of the alleged disciplinary offence; (

b) contain a

summary of the evidence to be presented in support of the charge at the hearing; and (

c) be signed by the designated staff member who issued the charge. [48] This

section requires that the notice of charge must both “describe the conduct that is the subject of the charge” and “contain asummary of the evidence to be presented”. I note that Konkin J. reached the same conclusion in Forest v Saskatoon Correctional Centre,2018 SKQB 49 [Forest]. The description of the conduct might be compared to the details contained in an indictment. It notifies the inmateof the nature and particulars of the charge. The

summary of the evidence, on the other hand, enables the inmate to more fully understandand prepare the case they have to meet. [49] Curiously, this explicit direction is not reflected in the charge report used in this case. The

section titled “Details ofContravention” is to be signed by the employee or person witnessing the incident. They are directed to include the names of personsdirectly involved and witnesses to the incident. However, the form does not call for a

summary of the evidence at the hearing, whichmight include log reports, other documents, and evidence of persons who were not involved, such as witnesses to whom the inmateconfessed. This shortcoming is difficult to understand in light of the clear and comprehensible reasoning in Forest, which was notappealed. Needless to say, it is important that corrections officials respond to the direction provided by the courts in relation to issues ofthis kind. [50] CO Lemay provided a

summary description of the alleged threat. However, he did not identify the other witnesses to the eventsleading up to the threat, despite that his log report specified two of those witnesses, being Dr. Blignaut and Nurse Rakesh. Nor did heidentify the two other staff who, according to the log report, heard the alleged threat. Further, and as might be expected given the contentof the form, there is no

summary of the evidence to be presented. [51] The Regulations must be interpreted in accordance with the modern principle; that is, in their grammatical and ordinary senseand in light of the purpose of the Act and the intention of the Legislature: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1SCR 27; The Legislation Act, SS 2019, c L-10.2, s 2-10.

Section 56 of the Regulations contemplates that evidence will be presented at thehearing, and that presenting evidence means something other than simply reading the charge and taking a plea. The obligation to presentevidence would arise even if the inmate had waived the attendance of the person who signed the notice of charge containing the chargedetails. [52] This

interpretation is consistent with the provisions of the Regulations relating to the conduct of the hearing, and the seriousconsequences that can result from conviction for a disciplinary offence. Indeed, it is the only reasonable

interpretation of s. 56. If theRPCC intended to present no evidence other than the unsworn

summary contained in the notice of charge, the notice of charge shouldhave said so. The fact it did not constituted a failure to comply with s. 56 and a breach of the duty of fairness. [53] It must be emphasized that this breach was more than a technical failure to comply with the Regulations that had no impact onthe fairness of the hearing. It is clear from the record that Mr. Kupsar, having pled not guilty, expected that there would be evidencepresented by the RPCC. He was wrongfooted.

Although his counsel quickly formulated a creative argument, he did not have theopportunity to properly prepare that argument or to consider alternatives. Those alternatives could have included the issue dealt with in thisjudgment, being the breach of procedural fairness, or the question of whether the charge report could constitute evidence at all,notwithstanding the discipline panel’s discretion to receive evidence it considers appropriate.

[ 54 ] The RPCC suggests that Mr. Kupsar should have done a better job of identifying the legal issues – including the procedural fairness issue – that arose as a result of the choice by the discipline panel to proceed as it did. Indeed, it submits that his failure to do so, together with his agreement that CO Lemay need not attend, supports the conclusion that he received a fair hearing. With respect, that argument fails to account for the fact that Mr. Kupsar was caught by surprise as a result of the RPCC’s failure to give the notice required by s. 56 .

Further, it overemphasizes the adversarial aspects of the discipline process, as opposed to the obligations imposed on the discipline panel by the inquisitorial model and the realities which have resulted in the use of such a model in this context. [ 55 ] This takes me to the second area of concern. The Act and Regulations establish an inquisitorial model. The discipline panel undertook no inquiry at all. It accepted the charge details as prima facie proof of the charge despite the fact Mr. Kupsar denied committing the offence by pleading not guilty.

If the discipline panel had taken the simple step of obtaining the log reports which it knew to exist, and which were a part of the RPCC’s own records, it would have known that the alleged threat occurred immediately after the dispute between Mr. Kupsar and medical staff. There was evidence that, as a result of that dispute, Mr. Kupsar spoke of commencing a lawsuit. There were also differences between the log reports as to exactly what he said. All of this would have constituted admissible evidence that was relevant to the issue of whether Mr.

Kupsar’s utterance constituted a threat of the sort that would constitute an offence. It may have led the discipline panel to inquire further. If Mr. Kupsar and his counsel had known of this evidence, he might have been prepared to mount a different defence. [ 56 ] As a result of the inquisitorial nature of these proceedings, the discipline panel was obliged to conduct an inquiry that was fair in the circumstances, and to consider both sides of the issue.

There may be situations where a discipline panel could decide that no initial inquiry beyond the notice of charge is required, such as a clear indication that the inmate intends to plead guilty to the charge specified in the notice of charge. However, proceedings which would not call for any relevant log reports to be tendered as evidence might be a relatively rare event. This was certainly not such a case.

The question of whether and to what extent a further inquiry is called for would depend on the circumstances as a whole. [ 57 ] It is fortuitous that the log reports have come to light as a result of the Appeal decision. They compellingly demonstrate the importance of undertaking at least the minimal inquiry involved in requesting those reports. It is also difficult to comprehend why the failure by the discipline panel to obtain and disclose log reports was compounded by the failure to disclose those reports to Mr. Kupsar and to permit him to make representations before the Appeal decision was rendered.

I take the fact that those reports have been disclosed as confirmation that there were no security concerns that would have prevented that disclosure. [ 58 ] For these reasons, I find that the discipline panel failed to conduct an inquiry that was fair in the circumstances, and that this failure constituted a breach of procedural fairness. VI. Conclusion [ 59 ] In the result, I would allow Mr. Kupsar’s appeal of the QB decision and quash the discipline decision which found Mr. Kupsar guilty of threatening another person. The parties did not speak to any additional remedy, and Mr.

Kupsar did not seek an order of costs. I would accordingly grant no additional relief. [ 60 ] Finally, I thank all counsel for their thoughtful and helpful submissions. “ Barrington-Foote J.A. ” Barrington-Foote J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Whitmore J.A.” Whitmore J.A.