An inmate (“Smith”) at the Fort Saskatchewan Correctional Centre (“FSCC”) succeeded in his application for judicial review of a decision by the Disciplinary Board which found that he had violated regulations by consuming marijuana. The court held that the Board’s failure to allow Smith to be represented by counsel was a breach of the principles of natural justice as the charge had serious consequences, was complex and Smith did not have sufficient capacity to properly represent himself at the hearing.

28. January 2003 0

Administrative law – Prisons – Discipline of inmates – Use of narcotics – Judicial review application – Right to legal counsel – Natural justice – Remedies – Habeas corpus – Standard of review – Correctness

Smith v. Fort Saskatchewan Correctional Centre, [2002] A.J. No. 1472, Alberta Court of Queen’s Bench, November 28, 2002, Clackson J.

Smith was an inmate at FSCC, a provincial correctional centre. Smith was convicted of institutional discipline charges after a narcotic was found in the vicinity of where Smith had been seated while visiting with his spouse. A urine sample was taken from Smith which disclosed the presence of THC, an active ingredient in marijuana. Smith was charged with violating regulations by doing an act “which is prejudicial to good order and discipline within the institution”. Smith appeared before the Disciplinary Board on November 4, 2002 and asked to be represented by counsel. This request was denied. Smith was convicted and sentenced to segregation for seven days and a loss of visiting privileges for 90 days. As a result of these convictions, Smith’s temporary absence application permit was also cancelled. Smith then brought an application to the court seeking the remedy of habeas corpus on judicial review and consequential relief.

The court reviewed the facts and determined that the primary issue was whether the denial of Smith’s request for counsel was a breach of the principles of natural justice. In reviewing the Board’s decision refusing Smith’s request for legal representation, the court held that the standard of review was whether the decision was correct.

The court reviewed the applicable policy and procedural guidelines as well as the common law with respect to the right to counsel. The court agreed that this issue must be determined after consideration of the six criteria laid out by Kerr, L.J. in R. v. Secretary of State for Home Department, Ex p. Tarrant, [1984] W.L.R. 613 (Q.B.D.):

1)   the circumstances of the particular case;

2)   its nature;

3)   its gravity;

4)   its complexity;

5)   the capacity of the inmate himself to understand the case; and

6)   the capacity of the inmate to present his defence.

The court found that the institutional charge faced by Smith was serious as segregation and loss of the prospect of release constituted the most serious consequences a prisoner could face.

The court reviewed the complexity of the charge and noted that the case depended upon the inference that Smith had consumed an illegal narcotic. This raised a number of issues including when the area was last searched, when and where the substance was found, and whether other scientific explanations for positive testing were available. The court held that skills in examination and cross-examination of witnesses would be necessary at the hearing, as well as expertise in the proper handling of samples. Therefore, the court held that this was a sufficiently complex case to meet this aspect of the test.

The court reviewed Smith’s capacity to present his own defence and found that he had failed to pursue many of the issues which competent counsel would have explored. Therefore, the court found that Smith clearly needed counsel to assist him in this matter. In the result, the court held that the Disciplinary Board erred in refusing to allow Smith to be represented by counsel. The court quashed the decisions of the Board and held that Smith was entitled to be represented by counsel at the subject hearing. The matter was returned to the Board to be dealt with.

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