Federal Court of Appeal calls out deficient prison disciplinary court reasons
- Kate Mitchell
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Overview
In Sharif v Canada (Attorney General), 2018 FCA 205, Stratas JA overturned the conviction of the appellant, who had been convicted by the Warkworth Institutional Disciplinary Court for “fight[ing] with, assault[ing] or threaten[ing] to assault another person” under paragraph 40(h) of the Corrections and Conditional Release Act, SC 1992, c 20.
The appellant filed a motion for judicial review, and the decision was upheld by the Federal Court. However, the Federal Court of Appeal quashed the conviction and ordered the Chair to dismiss the charge.
Justice Stratas, writing for the court, confirmed that reasonableness is the appropriate standard of review when judicially reviewing the decision of the Chair. He went on to find that the Chair’s decision was unreasonable, and it was therefore quashed.
The appellant “was given several direct orders to enter [a] food line from the rear” but was “physically uncooperative,” refused “direction”, and bumped a corrections officer “several times with his chest.” The Chair found that the appellant was attempting to keep his meal tray out of reach of the corrections officer, inviting physical contact by the appellant or officer. As a result, the appellant was convicted under paragraph 40(h) of the Act.
As outlined by Stratas JA, the Chair’s interpretation of paragraph 40(h) was too broad, as it stretched the meaning of “fight” or “assault” beyond its plain meaning. Since the appellant’s actions “f[e]ll short of affirmative action or aggression with physical consequence”, the conviction was unreasonable. Accordingly, the decision was quashed and the Chair was ordered to dismiss the charge given that a conviction was not possible.
Justice Stratas also discussed the inadequacy of the reasons, which were so deficient that a reviewing court could not conduct reasonableness review of key parts of the Chair’s decision, including the requirement of proof beyond a reasonable doubt and the sanction.
Discussion
In addition to Stratus JA granting the seldom-used mandamus remedy, he made a number of important comments that may suggest a shift in correctional law.
First, he outlined the importance of judges providing clarity in the correctional law context, at para 30:
“This area of law governs the relationship between the pressing imperatives of the state and the fundamental rights of inmates detained by it—an area where legal norms are best defined clearly, not left to uncertainty, speculation and later litigation. It is also an area where cases are often evasive of review because inmates do not often have the capability or means to litigate.”
Second, Stratas JA provided a strong response to the Attorney General’s claim that it is imperative for prisons to be able to maintain order through the discipline system and that courts should not deny authorities the ability to react effectively and immediately to breaches of prison order. In response to Howard v Stony Mountain Institution, [1984] 2 FC 642 (CA), a case relied upon by the Attorney General, Justice Stratus stated, at paras 51-52:
“We are a court of law whose judges have sworn to obey the law in a democracy governed by the rule of law; we are not free agents putting our personal policies into law. We do not make statutory law; we interpret and apply the law made by Parliament. We look at Parliament’s law to discern its real meaning; we do not look to our own policy preferences, our own worldviews, the opinions of the powerful, or the views of the public.…
In this case, acting in this way, I have reached a result that happens to be against what the prison authorities might want in this particular case. But this does not make me pro-inmate, anti-order or, for that matter, rash and ill-informed: my personal views do not enter into the matter. And if our elected representatives in Parliament believe that I have misunderstood the real meaning of their law or if they want to change it, our time-honoured constitutional arrangements supply ready recourse: they can amend the law to their liking.”
Time will tell whether or not Stratas JA’s comments signify a larger shift in correctional law, but recent case law on issues like segregation and placement of transgender inmates is promising.