COURT FILE NO.: 447/05
DATE: 2006-10-30
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, CHAPNIK and G. P. SMITH JJ.
B E T W E E N:
TIMOTHY VEYSEY
Applicant
Nancy Charbonneau for the Applicant
- and -
SUPERINTENDENT OF MAPLEHURST CORRECTIONAL COMPLEX, MINISTER OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES, and ATTORNEY GENERAL OF ONTARIO
Daniel Guttman for the Respondents
Respondents
HEARD: October 23, 2006
Reasons For Judgment
Overview
[1] The applicant, Timothy Veysey, (“Veysey”) seeks an order in the nature of certiorari quashing the decision of the respondent, Superintendent of Maplehurst Correctional Complex (the “Superintendent”), dated the 24th day of December, 2004 finding that Veysey was guilty of the misconduct offence of assault; and a declaration that the Inmate Misconduct provisions of Regulation 778, R.R.O. 1990, violate s. 7 of the Charter and are of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982.
[2] The Superintendent’s delegate concluded that Veysey was guilty of assaulting a fellow inmate contrary to the Inmate Misconduct provisions of R.R.O. 1990, Regulation 778 (specifically s. 29 (1) (b)). Veysey was given a penalty of 10 days indefinite close confinement and loss of all privileges.
[3] Maplehurst is a maximum-security correctional institution that can hold up to 1147 adult men. The Superintendent has overall management responsibility. Five Deputy Superintendents assist the Superintendent. Below them are 35 Operational Managers who supervise the 375 correctional officers and the inmates. Pursuant to s.3 of the Regulation, the Superintendent is specifically empowered to delegate any powers, duties or functions to his or her delegate.
[4] In this case, the Superintendent delegated the authority to decide inmate misconduct allegations to the Operational Manager assigned as “Segregation Manager”. The Segregation Manager, in this case Mr. Don McCaffrey, is responsible for the segregation area. All completed Reports are submitted to a Deputy Superintendent for review, generally on the day after the Report is completed.
[5] The Process for the determination of allegations of misconduct by inmates is governed by the Ministry of Correctional Services Act[^1], the provisions of the regulations under that Act[^2] and the relevant Ministry policies.
[6] The provincial inmate policy has two distinct goals: first, to maintain the order and safety of the correctional institution; and second, to ensure procedural fairness for the inmate in the resolution of allegations of misconduct.[^3]
The Inmate Misconduct Process
[7] Section 29(1) of the Regulation specifies the various charges of misconduct that an inmate may commit. Section 29(b) states that an inmate commits a misconduct when he or she “commits or threatens to commit an assault upon another person”.
[8] When an inmate is accused of misconduct, the Superintendent must hold an interview to determine if a charge of misconduct is justified[^4].
[9] Inmates have a right to written notice of the allegation, and have a right to an interview with the Superintendent within 10 days to discuss the allegation[^5].
[10] The misconduct process consists of four stages: (1) description; (2) investigation; (3) interview and (4) disposition. The results of each stage of the misconduct process are reported in a Misconduct Report (the “Report”) which encompasses the following.
The Description Stage
[11] The correctional officer who receives the allegation of misconduct completes this section of the Report. He or she must sign, date and set out the following information in the description section of the Report: the misconduct alleged to have been committed; the date, time and location of the offence; the inmate(s) involved and witnesses; details to substantiate the allegation; and immediate action taken by staff.
The Investigation Stage
[12] An Operational Manager completes this section of the Report. As well as conducting interviews with the complainant and any witnesses, and reviewing the relevant documentation, the investigation must include an interview with the accused inmate to: determine if he intends to deny or admit the misconduct; obtain his version of the events; advise him of his right to prepare a written statement for the interview and his right to have extra preparation time if this is requested; and to identify whether he will require assistance during the interview (e.g. a lawyer or interpreter).
The Interview
[13] The Superintendent interviews the inmate in the presence of at least one other employee, and completes this section of the Report. The inmate has the right to present arguments and explanations to dispute the allegation made against him. He also has the right to question the person making the allegation and any other witnesses.[^6]
[14] The Superintendent must check “Yes/No” regarding four questions in the Report: Was the inmate (i) advised of the allegations and did he understand them? (ii) advised of the right to present arguments? (iii) advised of the right to question person(s) making the allegation? (iv) advised of the right to call witnesses and prepare a written statement?
[15] The Superintendent also records whether the inmate admits/denies the misconduct, and his version of the incident.
The Disposition
[16] The Superintendent completes this section.
• The inmate must be informed of the decision within 2 days of the interview. [^7]
• The Superintendent must record the decision, the reasons for the decision, and the penalty imposed. [^8]
• Where the misconduct is deemed to be of a serious nature, the Superintendent may impose a penalty of segregation not exceeding 30 days.[^9]
• The Superintendent must conduct a preliminary review of the inmate’s case 24 hours after being placed in segregation, and thereafter at least once every 5 days to determine if segregation is still warranted. Where practicable, the inmate should retain all his privileges. [^10]
[17] The inmate has a right to Ministerial review of the misconduct decision. The Superintendent must provide the Minister with a copy of the record referable to the inmate’s case. The Minister or his/her delegate may uphold, vary or overturn the Superintendent’s decision or direct the Superintendent to reconsider. The Minister’s decision is final.[^11]
Factual Background
[18] On December 21, 2004, Halton Regional Police informed staff at Maplehurst that they received a complaint that one of the inmates was sexually assaulted. After interviewing the inmates, inmate V.C. claimed that Veysey “grabbed his penis”.
[19] Veysey was informed that he was accused of sexual assault and was taken to segregation. His clothes were seized. Photos were taken of him in his underwear. A male nurse then examined him and asked if anything had happened to him that day. The Halton Police did not lay any charges.
[20] Operational Manager Becky McKinnon investigated. She completed an occurrence report and the “Investigation” section of the Report. The Report indicates that she interviewed Veysey on December 24, 2004, that he pleaded not guilty and did not wish to call any witnesses. She checked off the boxes in the Report, indicating that Veysey was advised and provided with written notice of the allegation, was advised of his right to an interview with the Superintendent, and was advised of his right to prepare a written statement and call witnesses.
[21] It is not disputed that Veysey told McKinnon that he felt comfortable representing himself as he had done paralegal work in the past.
[22] McKinnon prepared a package of material for Veysey’s interview with the Segregation Manager McCaffrey, including the Report, the occurrence reports, the statement of inmate V.C. and the statement of inmate W.T.
[23] On December 24, 2004, Segregation Manager McCaffrey conducted the interview with Veysey and filled out the “Interview” and “Disposition” sections of the Report. He indicated on the Report that Veysey was advised of the allegations and that he understood them, his right to present arguments, his right to question person making the allegation, and his right to call witnesses and prepare a written statement.
[24] McCaffrey also noted that Veysey “pleads not guilty” and that Veysey said that he could not explain or call witnesses for something that didn’t occur.
[25] McCaffrey found Veysey guilty of misconduct and gave him 10 days in segregation with loss of all privileges.
[26] Veysey alleges that he was not informed who the witnesses against him were; that he did not see their statements; and that he was not given any information about the alleged assault beyond the bare allegation against him. But he declined the opportunity to question his accusers, a process which would have cured these omissions.
[27] Veysey also states that he was not permitted any phone calls to family on Christmas day or Boxing day, that he was not permitted to send or receive any mail from December 24 to 30, 2004, that he was denied access to the Ontario Ombudsman and that he was denied inmate request forms on December 25 and 26, 2004. None of these allegations point to unfairness in the process leading to his conviction.
[28] Deputy Superintendent Richard Wilson reviewed Veysey’s decision record five days later and initialed the decision, indicating that the appropriate process had been followed.
[29] Veysey first applied to the Ombudsman for a review of the misconduct decision. The Ombudsman informed him that he should apply for Ministerial review. Veysey states that Maplehurst staff did not advise him of this right of review.
[30] Veysey applied for Ministerial review. By letter dated August 3, 2005, Assistant Deputy Minister Commeford refused to vary the decision or penalty.
The Court’s Jurisdiction
[31] Section 2 (1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, states that the Divisional Court has jurisdiction to grant any relief that an applicant would be entitled to in: (1) proceedings by way of an application for an order in the nature of mandamus, prohibition or certiorari, or (2) proceedings by way of an action for a declaration or for an injunction or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
[32] We are satisfied that this court has jurisdiction to hear this application.
The Standard of Review
[33] The issue in this application relates to the allegation of procedural unfairness; that this, whether the Superintendent and his representatives acted fairly towards Veysey.
[34] In Kalin v. Ontario College of Teachers[^12] (2005), 2005 18286 (ON SCDC), 75 O.R. (3d) 523 at para. 9, the Divisional Court said:
Every Tribunal is entitled to control its own procedure and will be accorded deference on matters requiring an exercise of discretion, such as matters of scheduling or adjournment requests. However, where there has been a breach of natural justice or procedural unfairness, it is not necessary to engage in an analysis of the appropriate standard of review. Decisions which do not comply with the rules of procedural fairness and natural justice cannot stand: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193; Gismondi v. Ontario (Human Rights Commission), 2003 21371 (ON SCDC), [2003] O.J. No. 419, 169 O.A.C. 62 (Div. Ct.).
[35] The duty of fairness has been recognized in our courts as a flexible duty that may vary, based on all of the circumstances.
[36] In Baker v. Canada (Minister of Citizenship and Immigration)[^13], L’Heureux-Dubé J. identified five non-exhaustive factors that should be considered in determining the content of the duty of fairness: the nature of the decision, the nature of the legislative scheme, the importance of the decision to the individual affected, the legitimate expectations of the person challenging the statute, and the decision-maker’s choice of procedure. In the context of the prison system, this Court held in Re Desroches and the Queen (1983), 1983 1615 (ON SC), 42 O.R. (2d) 758 at para. 17 that “compliance with the provisions of s. 30 [now s. 31(3) of Regulation 778] would also be compliance with the duty of fairness.”
[37] An inmate disciplinary hearing is essentially an administrative process. It is not a judicial proceeding. As stated by Justice Pigeon in Martineau v. Matsqui Institution Disciplinary Board,[^14] quoting Denning M.R. in Fraser v. Mudge et al,[^15] those that hear disciplinary matters must act fairly and must let the inmate know the charge and must afford the inmate an opportunity to present his case.
[38] In separate but concurring reasons in Martineau, Dickson J. commented that:
“The very nature of a prison institution requires officers to make “on the spot” disciplinary decisions and the power of judicial review must be exercised with restraint. Interference will not be justified in the case of trivial or merely technical incidents. The question is not whether there has been a breach of the prison rules, but whether there has been a breach of the duty to act fairly in all the circumstances.”
[39] These comments apply directly to this case. There is no reasonable expectation of all the procedures of a court. The Applicant knew the charge, denied that it occurred, but declined to call any witnesses. His statement that he could not call witnesses to what did not occur is wrong and self-serving. He could have called the persons present in the day area at the time. In the context of a summary proceeding, he was treated fairly.
Charter Issues
[40] The Applicant has raised the issue that the decision finding Veysey guilty of misconduct violated section 7 of the Charter of Rights and Freedoms because of actual or perceived institutional bias and lack of impartiality. It was said that the institution was the aggrieved party and should not judge its own case. There was a reasonable apprehension of bias because the decision-maker was an officer of the institution. It is noted that in Morin v. Saskatoon Correctional Centre, 1990 7465 (SK QB), 1990, 86 Sask. R. 269 (Q.B.), a s. 7 right to an independent tribunal in the prison disciplinary context was rejected.
[41] Moreover, in our view there is nothing in the evidentiary record before us that sustains this allegation.
[42] The hearing in question concerned issues between two inmates. There was no allegation that involved the institution of Maplehurst or any correctional officers in its employ. For that reason alone, we can see no basis on which it could be said that a reasonable person, aware of the situation, and having thought the matter through, could reach the conclusion that the officer might favour one inmate over another. The interest of the institution is in the maintenance of order, and both sexual assaults and false allegations of such assaults have the potential to disturb the peace. There is no reason to believe that the officer would prefer one inmate over the other.
[43] It is a well recognized principle that a court should not decide issues of law that are not necessary to a resolution of the case before it.[^16]
[44] We adopt the comments of Sopinka J. that: “The policy which dictates restraint in constitutional cases is sound. It is based on the realization that unnecessary constitutional pronouncements may prejudice future cases, the implications of which have not been foreseen.”[^17]
[45] Since the Charter was promulgated by Parliament, the Supreme Court has consistently refused to engage in making pronouncements on constitutional decisions where it is not necessary to do. In Law Society of Upper Canada v. Skapinker,[^18] Estey J. stated: “The development of the Charter, as it takers place in our constitutional law, must necessarily be a careful process. Where issues do not compel commentary on these new Charter provisions, none should be undertaken.”
[46] In our opinion, this case can be adjudicated on its facts and the issues before us do not make it necessary to decide this case by reference to the Charter of Rights and Freedoms. There is no evidentiary record before us to establish that institutional bias in discipline matters as between inmate and inmate in present-day Ontario correctional institutions in an endemic problem leading to unfair treatment of inmates. The only material in the record is a study now more than thirty years old and dealing with indications of institutional tendencies to assume guilt in misconduct cases in a federal institution using a different system. The other major point made by the applicant is the desirability of recording the proceedings, but there is no issue in the case as to what occurred which could be cured by having a transcript. The further point, the desirability of having legal counsel, is also irrelevant because the applicant’s evidence is that he was offered the opportunity to have counsel and declined it. In our view, there is simply no factual matrix in which to consider these constitutional issues.
Disposition
[47] We are satisfied that the treatment afforded to the Applicant was fair in all the circumstances. He was informed of the nature of the charge against him; he was provided with the opportunity to retain counsel which he declined; and he was offered an opportunity to question his accuser and to call witnesses on his behalf, both of which he declined. His case received a full and meaningful ministerial review.
[48] The Applicant has failed to demonstrate procedural or substantive unfairness.
[49] For the foregoing reasons, the Application is dismissed.
[50] If unable to agree, we would ask counsel to provide written submissions with respect to the issue of costs. The Respondents shall provide their submissions within 14 days of the release of this decision. The Applicant shall provide his submissions within 14 days thereafter. No right of reply is granted without leave of this court.
Lane J.
Chapnik J.
G. P. Smith J.
Released: October 30, 2006
COURT FILE NO.: 447/05
DATE: 2006-10-30
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, CHAPNIK and G. P. SMITH JJ.
B E T W E E N:
TIMOTHY VEYSEY
Applicant
- and -
SUPERINTENDENT OF MAPLEHURST CORRECTIONAL COMPLEX, MINISTER OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES, and ATTORNEY GENERAL OF ONTARIO
Respondents
REASONS FOR JUDGMENT
BY THE COURT
Released: October 30, 2006
[^1]: Ministry of Correctional Services Act, R.S.O. 1990, CH. M.22. [^2]: R.R.O. 1990, Regulation 778 Amended to O.Reg. 295/05. [^3]: Ministry of Community Safety and Correctional Services’ Policy on Discipline and Misconduct. [^4]: Regulation 778 ss. 29 (1), 31 (1). [^5]: Regulation 778 s. 31 (2). [^6]: Regulation 778 s. 31 (3). [^7]: Regulation 778 s. 31 (6). [^8]: Regulation 778 s. 31 (8). [^9]: Regulation 778 ss. 32 (2), 34 (1) (c). [^10]: Regulation 778 s. 34 (2)-(4). [^11]: Regulation 778 ss. 33 (1) (a), (2)-(4). [^12]: Kalin v. Ontario College of Teachers (2005), 2005 18286 (ON SCDC), 75 O.R. (3d) 523. [^13]: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817. [^14]: Martineau v. Matsqui Institution Disciplinary Board, 1979 184 (SCC), [1980] 1 S.C.R. 602. [^15]: Fraser v. Mudge et al, [1975] 1 W.L.R. 1132. [^16]: Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 86 (SCC), [1995] 2 S.C.R. 97. [^17]: Phillps v. Nova Scotia, supra. at para. 9. [^18]: Law Society of Upper Canada v. Skapinker, 1984 3 (SCC), [1984] 1 S.C.R. 357 at p. 383.