Hanna v. Mission Institution
T-950-95
Rouleau J.
12/10/95
12 pp.
Application to set aside Independent Chairperson (ICP)'s decisions applicant guilty of offence under Corrections and Conditional Release Act, s. 40(f), and dismissing appeal-Applicant, inmate of Mission Institution, charged with being disrespectful or abusive towards staff member in manner undermining staff member's authority-Observed making computer graphic design of witch with words "Andrea", "witch", "Xmas"-Acting Case Management Officer receiving offensive computer generated image of witch, similar wording-Notified of charge December 23, 1994-At December 29 hearing, applicant entering "not guilty" plea-No evidence led-Applicant indicating ready, willing to proceed-Matter put over to January 12 due to unavailability of key witness-Corrections and Conditional Release Regulations, s. 28 providing hearing to take place not less than three "working days" after inmate receiving written notice of charge-Corrections and Conditional Release Act, s. 41(1) requiring staff member to take all reasonable steps to resolve matter informally where possible-Application dismissed-(1) ICP not losing jurisdiction because notification of charge not delivered three working days before proposed date of hearing contrary to s. 28-Uncertain hearing not taking place well after three-day notification period-Proposition prison disciplinary hearing commences for purposes of s. 28 when plea entered (R. v. Barrow, [1987] 2 S.C.R. 694) not necessarily so in terms of whether hearing held in accordance with s. 28-Even if disciplinary court not complying with procedural rule, must still consider whether failure so severe as to constitute loss of jurisdiction-Prejudice to applicant consideration-Whether or not time limit adhered to, applicant suffering no prejudice-(2) As argument s. 41 not followed not raised at hearing, no evidence led on issue, no basis upon which to determine ICP lacked jurisdiction-(3) That no signature in first line of "decision taken" section of offence report procedural irregularity from which applicant not suffering prejudice-Offence authorized by institutional head or delegate-(4) No basis to interfere with ICP's finding of fact communication directed towards staff member-(5) Applicant given opportunity to make submissions as to sanctions-(6) Not breach of right to fair hearing to have Chairperson ask questions in order to make proper determination-Prison disciplinary proceedings not adversarial, but inquisitorial-(7) ICP not refusing to determine motion to dismiss charge, but indicating premature-Applicant given ample opportunity, after all of evidence of both parties presented, to make submissions insufficient evidence to support offence charged-(8) Requirements of fairness met when witness called after applicant gave evidence as applicant present, hearing evidence, given opportunity to call further witnesses-(9) Denial of assistance of fellow inmate, who had been in law school before incarcerated, not denial of legal counsel-Applicant aware could consult legal counsel-(10) Procedural defects not denial of guarantees in Charter, s. 7 that proceedings be conducted in accordance with principles of fundamental justice-Corrections and Conditional Release Regulations, SOR/92-620, s. 28-Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 40(f), 41(1)-Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.