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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.
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