T-2220-89
Ian Ross Mooring (Applicant)
v.
Dean Fox, in his capacity as Independent Chair
person for Prison Disciplinary Hearings at Kent
Institution (Respondent)
INDEXED AS: MOORING v. KENT INSTITUTION (T.D.)
Trial Division, Martin J.—Vancouver, October 30;
Ottawa, December 11, 1989.
Penitentiaries — Proper interpretation of Commissioner's
Directive concerning giving of evidence not affording prisoner
in disciplinary hearings more protection than that given
accused in criminal matters.
Practice — Evidence — Prison disciplinary hearings —
Evidence received against convict after he testified — Whether
case improperly split — Defence surfacing only when convict
gave evidence — Evidence properly received in reply.
This was a section 18 application to quash the respondent's
decision finding the applicant guilty of serious misconduct on
the grounds that a fair hearing was denied contrary to para
graph 11(d) of the Charter or that there was a breach of
procedural fairness.
An officer alleged that the applicant had kicked her in the
leg during an altercation between inmates and prison officers.
The officer gave evidence at the disciplinary hearing following
which the applicant elected to testify. The hearing was then
adjourned to receive evidence from another prison officer.
Held, the application should be dismissed.
The case against the applicant had not been improperly split
since the evidence of the subsequently called witness constitut
ed evidence in reply. The equitable and fair application of the
Commissioner's Directive dealing with the calling of witnesses
at disciplinary hearings does not require that all witnesses
against an inmate be heard prior to his election whether to
testify. It does not afford an inmate in disciplinary proceedings
greater protection than that given an accused in criminal
matters.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
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], ss. 7, 11(d).
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Penitentiary Act, R.S.C., 1985, c. P-5, s. 37(3).
Penitentiary Service Regulations, C.R.C., c. 1251.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
John v. The Queen, [1985] 2 S.C.R. 476; (1985), 24
D.L.R. (4th) 713; 23 C.C.C. (3d) 326; 49 C.R. (3d) 57;
63 N.R. 141; 11 O.A.C. 391; Russell v. Radley, [1984] 1
F.C. 543; (1984), 5 Admin. L.R. 39; 11 C.C.C. (3d) 289
(T.D.).
AUTHORS CITED
McWilliams, Peter K. Canadian Criminal Evidence, 3rd
ed. Aurora: Canada Law Book Inc., 1988.
COUNSEL:
Jeffrey Ray for applicant.
Peter A. Eccles for respondent.
SOLICITORS:
Howard Smith & Company, New Westmin-
ster, British Columbia, for applicant.
Ray Connell, Vancouver, agent for Deputy
Attorney General of Canada for respondent.
The following are the reasons for the order
rendered in English by
MARTIN J.: The applicant, an inmate at the
Kent Institution penitentiary in British Columbia,
applies pursuant to section 18 of the Federal Court
Act [R.S.C., 1985, c. F-7] to quash the decision of
the respondent, an independent chairperson
appointed under the provisions of the Penitentiary
Service Regulations, C.R.C., c. 1251, finding the
applicant guilty of the offence of serious miscon
duct i.e. assaulting a prison officer on July 6, 1989.
The grounds of the application are that the
respondent acted in excess of or without jurisdic
tion by denying the applicant a fair hearing con
trary to paragraph 11(d) of the 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]] by ordering that another prison officer
be called to give evidence at the disciplinary hear
ing after the applicant had given his evidence.
Alternatively counsel for the applicant submits, on
the same facts, that the respondent breached his
duty of procedural fairness owed to the applicant.
Originally the applicant applied on the addition
al grounds that the respondent's actions contrav
ened the provisions of section 7 of the Charter but,
in the course of the hearing before me, advised
that he was no longer relying on section 7 but
exclusively on paragraph 11(d).
It is common ground that there was some sort of
an altercation between inmates and prison officers
of the Kent Institution on July 6, 1989. The
Inmate Offence Report and Notification of
Charge completed by prison officer Bowman
alleges that the applicant kicked her in the leg.
The alleged conduct by the applicant was properly
characterized as serious misconduct and the appli
cant was given notice of it.
After three postponements, in the course of
which the applicant came to be represented by
counsel, the disciplinary hearing began on July 28,
1989. Prison officer Bowman gave her evidence
and no other witness was called. The applicant
then elected to give evidence at the completion of
which the respondent, rather than make a decision
on the evidence which was before him at that time,
adjourned the hearing to August 2, 1989 to hear
the evidence of prison officer Molino.
On August 2, 1989 Molino gave his evidence
and was cross-examined by counsel for the appli
cant. Counsel for the applicant then made submis
sions to the respondent following which the
respondent found the applicant guilty of assaulting
Bowman and imposed an appropriate penalty.
Counsel for the applicant charges that, in call
ing Molino after the applicant had given his evi
dence, the case or evidence against the applicant
was improperly split and further that the evidence
given by Molino did not constitute evidence in
reply or rebuttal. He cites the case of John v. The
Queen, [1985] 2 S.C.R. 476; [(1985), 24 D.L.R.
(4th) 713; 23 C.C.C. (3d) 326; 49 C.R. (3d) 57;
63 N.R. 141; 11 O.A.C. 391], in which such a
tactic is described by Estey and Lamer JJ. in the
following terms at page 481:
These are the consequences that flow from a violation of one
of the fundamental precepts of our criminal process, namely the
dividing of the prosecution's case so as to sandwich the defence.
This is a particularly lethal tactic where the evidence in reply
raises a new issue and attacks the accused's credibility for this
is the last evidence which the members of the jury hear prior to
their deliberations. It also raises the question as to the propriety
of the Crown's conduct in the context of the accused's right to
elect to remain silent or to elect to enter the witness box in his
own defence. He must be given the opportunity of making this
decision in the full awareness of the Crown's complete case.
This did not occur in these proceedings.
In support of his submission counsel for the
applicant also refers to paragraph 19 of the 1987
Commissioner's Directive made pursuant to sub
section 37(3) of the Penitentiary Act, R.S.C.,
1985, c. P-5, which provides as follows:
19. If the plea is "not guilty", the accused inmate(s) shall be
informed of the opportunity to give evidence after all the
witnesses against him/her have been heard. The inmate
may submit a list of witnesses and/or documents he/she
wishes prior to the hearing.
Counsel admits that the Commissioner's Direc
tive does not have force of law but submits that the
applicant has the right to expect it to be applied
fairly. I agree with his submission which was
described by Muldoon J. in Russell v. Radley,
[1984] 1 F.C. 543; [(1984), 5 Admin. L.R. 39; 11
C.C.C. (3d) 289 (T.D.), at page 562 F.C.] where
he observed:
The Directive is of course a set of rules made by the Commis
sioner with statutory authority (so long as intra vires) for the
governance of the members of the Service (Regina v. Institu
tional Head of Beaver Creek Correctional Camp, ex parte
MacCaud, [1969] 1 C.C.C. 371 (Ont. C.A.)) at least. There is
a clear implication in the Directive to the effect that if action is
not to be taken immediately, it must surely be taken within a
reasonable time. Although the Commissioner's Directive is not
to be regarded as "law" within the wording of section 28 of the
Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10], because
"It is not in any legislative capacity that the Commissioner is
authorized to issue directives, but in his administrative capaci
ty" (Martineau et al. v. The Matsqui Institution Inmate
Disciplinary Board (No. 1), [1978] 1 S.C.R. 118, at p. 129; 33
C.C.C. (2d) 366, at p. 374) yet, even before the enactment of
the Charter, inmates were held to be entitled to have the
Directives applied fairly and in accordance with the rules of
natural justice (Martineau (No. 2), supra, fn. 3, S.C.R. at p.
629, C.C.C. at p. 378).
Counsel for the applicant appears to argue that
the equitable and fair application of directive 19
requires that all witnesses against the accused
must first be heard and then, should the accused
elect to give evidence, he may do so. However, if I
understand counsel's submission, he contends that
under no circumstances may additional evidence
be called after the accused has given his evidence.
In my view this is a far too rigid and formulistic
meaning to be assigned to that directive. As I read
it it simply means that at the outset of the relative
ly informal hearing, "relatively informal" because
by directive 21 the rules of evidence in criminal
matters do not apply in disciplinary hearings, if
the inmate pleads "not guilty" the chairperson will
tell him that after he has heard what the prison
authorities or other witnesses have to say about the
charge against him he, the inmate, will be given
the opportunity of giving his version of the matter
if he so desires. The directive exists, in my view, to
guard against the possibility that someone, per
haps an unrepresented inmate, may not be aware
of the fact that he is entitled to give evidence at
the hearing. It seems to me that this advice is
intended to be given to the inmate immediately
after his plea and before any evidence is heard
because, in directive 19 after the direction to
inform the inmate of his right to give evidence,
there is the direction that the inmate may, "prior
to the hearing", submit a list of witnesses and
documents he wishes.
I do not see directive 19 in the sense that after
all the witnesses, except the inmate, are heard that
the chairperson will inform the inmate that all the
witnesses against him have now been heard and
there will not and cannot be any further evidence
other than the inmate's evidence, and that the
chairman will advise the inmate that he now has
the right, if he so chooses, to give evidence safe in
the assurance that no matter what he says there
will be no further evidence called to rebut or reply
to it.
If, under the strict rules of evidence in criminal
matters, the evidence given by an inmate in a
disciplinary hearing would permit the Crown to
call evidence in reply or rebuttal in a criminal trial
then the independent chairman is entitled in a
disciplinary hearing to receive that same evidence
after the inmate has given his. This is a completely
different question from the one which addresses
the issue of whether the independent chairperson
can, after the inmate has given his evidence,
receive evidence which, in cases governed by the
strict rules of evidence in criminal matters, would
amount to the Crown splitting its case and would
not be receivable as proper rebuttal evidence or
evidence in reply.
That latter question does not arise in this case
because, in my view, the evidence, which the
independent chairperson received after the evi
dence given by the inmate, was evidence which
could properly be received in criminal proceedings
as evidence in reply. In other words I find that
directive 19 does not afford an inmate in discipli
nary proceedings a greater protection than that
afforded an accused in criminal matters to which
the strict rules of evidence apply for his protection.
In the present case the evidence against the
inmate was given by Bowman who, in her direct
evidence, made no mention of any physical alterca
tion between the applicant and prison officer
Molino. The first mention of Molino came from
counsel for the applicant who put it to Bowman
that there was such an altercation. Bowman did
not accede to this suggestion.
The suggestion put by counsel for the applicant
in his cross-examination of Bowman did not in my
view raise a defence which called upon the chair
person to call and receive or arrange for evidence
to rebut it prior to hearing the evidence of the
applicant. In the first place the suggestion put to
Bowman did not raise any particular defence but
only an inference of several possible defences such
as:
a) Molino threw the inmate at Bowman causing
him to inadvertently strike her;
b) Molino and the inmate were involved in a
physical altercation in another place at the time
it was alleged that the applicant struck Bowman
i.e. an alibi;
c) Molino and the inmate were so completely
involved in their own altercation that the appli
cant could not have struck Bowman.
Secondly the inference was raised on cross-
examination only and thus could not arise unless
the applicant elected to give evidence. This situa
tion is dealt with in McWilliams, Canadian
Criminal Evidence, 3rd ed. 1988, at page 31-11 as
follows:
31:10330 Difficulty of foreseeability test
The prosecution may foresee certain defences being put
forward and yet it would be presumptuous to assume that they
will all in fact be put forward. A defence may be suggested in
the cross-examination of Crown witnesses but it may not
clearly emerge until the defence opens its case. As Lord
Sumner said in Thompson v. The King, [1918] A.C. 221
(H.L.), "The prosecution cannot credit the accused with fancy
defences in order to rebut them at the outset with some
damning piece of prejudice."
Defences such as self-defence or provocation will most cer
tainly involve a decision whether to call the accused and the
prosecution cannot assume that it will be done. As Phillimore,
J., said in argument in R. v. Froggatt (1910), 4 Cr. App. R.
115 at p. 118:
You do not know what a prisoner is going to say in his
defence. In some cases it would be impossible for the pros
ecution to deal with the alibi except by way of rebutting
evidence, because the prosecution does not know that at the
trial the prisoner may not set up some defence other than and
inconsistent with an alibi, even though before the justices he
set up an alibi.
But where on a retrial, the same alibi was set up as on the prior
trial, rebuttal was refused: R. v. Smith, [1956] Crim. L.R. 193,
as the prosecution was not taken by surprise.
In fact in this case the applicant elected to give
evidence and said, in effect, that he did not strike
Bowman or, alternatively, if he did strike her, he
had been shoved into her by Molino in the alterca
tion they were having.
Thus it was only after the applicant gave evi
dence that the chairperson became aware of his
defence. Under these circumstances, in a normal
criminal trial, the Crown would be entitled to call
evidence in reply to that defence. In this case the
chairperson, faced with the conflict in the evidence
before him, elected, and properly so in my view, to
have Molino gave evidence so that the truth of the
applicant's version of the incident could be
determined.
As it transpired Molino denied any contact with
the applicant and, rejecting the applicant's defence
on that basis, the chairperson properly convicted
him.
As I can see no unfair treatment of the applicant
in the procedure adopted by the chairperson in the
course of the applicant's disciplinary hearing the
within application will be dismissed.
There will be no order as to costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.