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T-1504-82
Lance David Blanchard, an inmate of Millhaven Institution (Applicant)
v.
Disciplinary Board of Millhaven Institution and Douglas L. Hardtman in his capacity as independent chairperson thereof (Respondents)
Trial Division, Addy J.—Ottawa, March 11 and 15, 1982.
Judicial review — Prerogative writs — Certiorari — Motion pursuant to s. 18 of Federal Court Act for writ of certiorari or relief in the nature thereof quashing decisions of Disciplinary Board chairperson by which applicant convicted of inmate offences under s. 39 of Penitentiary Service Regulations — Nature of proceedings — Requirements of procedural fairness in relation to administrative enquiry wherein examination of conduct of subject may result in imposition of penalty — Whether duty to act fairly requires that subject be allowed legal counsel — Application dismissed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18 — Penitentiary Act, R.S.C. 1970, c. P-6 — Penitentiary Service Regulations, C.R.C., c. 1251, s. 39.
MOTION. COUNSEL:
Alison J. MacPhail for applicant. Leslie Holland for respondents.
SOLICITORS:
Alison J. MacPhail, Kingston, for applicant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for judgment rendered in English by
ADDY J.: This present motion by the applicant pursuant to section 18 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, is for a writ of certiorari or relief in the nature thereof, quashing the decisions of the respondent, Douglas L. Hardt - man, made on or about the 10th of February, 1982, convicting the applicant of two counts of doing any act calculated to prejudice the discipline or good order of the Institution contrary to para graph 39(k) of the Penitentiary Service Regula-
tions, C.R.C., c. 1251, proclaimed pursuant to the Penitentiary Act, R.S.C. 1970, c. P-6, as amended; one count of damaging government property con trary to paragraph 39(e) of the Penitentiary Ser vice Regulations proclaimed pursuant to the Peni tentiary Act; one count of being indecent, disrespectful or threatening in his actions, lan guage or writing toward any other person contrary to paragraph 39(g) of the Penitentiary Service Regulations proclaimed pursuant to the Peniten tiary Act; one count of having "contraband in his possession" contrary to paragraph 39(i) of the Penitentiary Service Regulations proclaimed pur suant to the Penitentiary Act; one count of assault contrary to paragraph 39(b) of the Penitentiary Service Regulations proclaimed pursuant to the Penitentiary Act; and quashing the decisions of the respondent, Douglas L. Hardtman, made on or about the 17th of February, 1982, convicting the applicant of two counts of doing any act calculated to prejudice the discipline or good order of the Institution contrary to paragraph 39(k) of the Penitentiary Service Regulations proclaimed pur suant to the Penitentiary Act.
REASONS
A hearing conducted by a penitentiary discipli nary board for an alleged infraction of the Peni tentiary Service Regulations is an administrative proceeding and is neither judicial nor quasi-judi cial in character.
Except to the extent that there are statutory provisions or regulations having the force of law to the contrary, there is no requirement to conform to any particular procedure or to abide by the rules of evidence generally applicable to judicial or quasi- judicial tribunals or adversary proceedings.
There is, however, an overall duty to act fairly in administrative matters and, when applied to an administrative hearing or enquiry, the duty to act fairly translates into one of ensuring that the
enquiry is carried out in a fair manner and with due regard to natural justice. This duty to act fairly where the conduct of a person who might be subject to some penalty is being examined, requires that the person be aware of what the allegations are, of the evidence and the nature of the evidence against him and be afforded a reason able opportunity to respond to the evidence and to give his version of the matter. In order to achieve this, wherever evidence is being given orally, the prisoner should be present and also be afforded the opportunity of cross-examining or questioning any witness, unless there are exceptional circumstances which would render such a hearing practically impossible or very difficult to conduct, such as deliberately obstructive conduct on the part of the party concerned.
There is no general right to have the proceedings transcribed verbatim but, where such a transcrip tion exists, as in the present case, it may be used to enable the reviewing court to come to its conclu sions on the merits of the application.
Although the hearing is not to be conducted as an adversary proceeding but as an inquisitorial one, there is no duty on the person responsible for conducting the hearing to explore every conceiv able defence or to suggest possible defences to the prisoner, although there is a duty to conduct a full and fair enquiry which, of course, might lead to the obligation of asking questions of the prisoner or of any witness, the answers to which might prove exculpatory in so far as the prisoner is concerned. He must, in other words, examine both sides of the question.
There is no right to counsel; whether counsel representing the prisoner is to be allowed to be present is a matter for the discretion of the chair man conducting the enquiry. Occasions might possibly arise where matters are so complicated from a legal standpoint that the duty to act fairly might require the presence of counsel, but I cannot at the moment envisage such a situation, especially where the person conducting the enquiry is a legal ly qualified barrister and solicitor, as in the present case. Furthermore, the questions arising in these
disciplinary proceedings are, generally, of a factual nature.
The prisoner must be mentally and physically capable of understanding the proceedings and the nature and details of the accusations, of taking cognizance of any oral or written evidence present ed, of questioning witnesses and of presenting his version of the matter. Where there is any doubt as to the prisoner's capability to so take part in the proceedings, then, in order to act fairly, the chair man must first satisfy himself on that issue before proceeding with the hearing.
After having examined the affidavits and exhib its produced on this present application, including the transcript of the oral evidence (albeit a very incomplete one), hearing the arguments of counsel and considering the jurisprudence referred to, I cannot, in the light of the above principles, con clude that the chairman acted unfairly in any way.
He carefully took into consideration the prison er's capacity to defend himself and concluded that he was so capable. There is no evidence that the prisoner was mentally incapable of taking part. On the contrary, he addressed some very pertinent questions to the witnesses and made statements which were quite relevant to the issues.
The chairman considered the request for representation by counsel and exercised his discre tion to refuse counsel in light of the most recent jurisprudence on that subject. Unless the exercise of any such discretion is patently unfair, this Court should not interfere.
By reason of the fact that the hearing is an inquisitorial proceeding and not an adversary pro ceeding and that hearsay and written hearsay evi dence are admissible, it is not up to this Court to review the evidence as a court might do in the case of an appeal from a judicial tribunal or of a review of the decision of a quasi-judicial tribunal, but merely to consider whether there has, in fact, been a breach of the general duty to act fairly. There
might, of course, be cases where a patent disregard of the evidence would indicate bad faith on the part of the chairman or a breach of his general duty to act fairly. Such is far from being the case here.
ORDER
Application dismissed with costs.
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