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Corrections and Conditional Release Act (CCRA). Bouab v. Canada (Attorney General)
In Bouab v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from a JR against "a decision of the Independent Chairperson of the Warkworth Institution Disciplinary Court" regarding urine testing.
The case is illustrative of prison disciple procedures under the CCRA, which rarely reach this level of court:[2] Mr. Bouab is an inmate at Warkworth Institution. On November 22, 2022, he was summoned to provide a urine sample as part of a random selection urinalysis program, conducted pursuant to paragraph 54(b) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA). Despite drinking water both before and after arriving at the collection area, Mr. Bouab was unable to provide enough urine to constitute the minimum 30-millilitre sample required by the Commissioner’s directive 566-10: Urinalysis testing. Paragraph 66(1)(d) of the Corrections and Conditional Release Regulations, S.O.R./92-620 stipulates that the collector shall give the donor up to two hours to provide a sample, from the time of a demand. After discussing his options with the collection officer, Mr. Bouab left the collection area after approximately one hour and 40 minutes to attend to his work obligations.
[3] Mr. Bouab was charged with the disciplinary offence of failing or refusing to provide a urine sample pursuant to paragraph 40(l) of the CCRA. He pled not guilty, relying on his inability to provide the required sample. At the conclusion of the disciplinary hearing, the Chairperson delivered his decision orally, finding Mr. Bouab guilty of the offence as charged. Although the Chairperson stated that he preferred Mr. Bouab’s evidence to that of the collection officer and found that Mr. Bouab had acted in good faith and was cooperative throughout, the Chairperson rejected Mr. Bouab’s explanation that he was unable to provide the sample. The Chairperson noted that if Mr. Bouab had remained in the collection area the entire two hours, the Chairperson would have had a "“reasonable doubt”" regarding Mr. Bouab’s inability to provide the required urine sample.
[4] The Federal Court dismissed Mr. Bouab’s application for judicial review, finding that the Chairperson’s decision was reasonable. The Federal Court disagreed with Mr. Bouab’s arguments that the Chairperson’s sole justification for his finding of guilt was Mr. Bouab’s voluntary departure from the collection area before the two-hour period had elapsed and that the Chairperson had made factual findings that were legally incompatible with a finding of guilt. The Federal Court found instead that, when read as a whole, the reasons for the decision demonstrated that the Chairperson had considered Mr. Bouab’s defence of involuntariness, but ultimately was not satisfied that the failure to provide a sufficient urine sample was involuntary.
[5] Mr. Bouab now appeals to this Court.
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[8] Mr. Bouab submits that the Chairperson’s decision is unreasonable. To some degree, he raises the same arguments he made before the Federal Court. He argues that the Chairperson’s finding of guilt beyond a reasonable doubt is unjustified in relation to the Chairperson’s findings of fact (that Mr. Bouab acted in good faith and was cooperative) and the Chairperson’s acceptance of Mr. Bouab’s exculpatory evidence. Mr. Bouab contends that the Chairperson conflated Mr. Bouab’s voluntary departure from the collection area before the two hours had elapsed with the voluntariness of his failure or refusal to provide a urine sample.
[9] While the Chairperson’s reasons could have been better articulated, I am satisfied that the Chairperson did not conflate, as suggested, Mr. Bouab’s voluntary early departure from the collection area with the voluntariness of his failure or refusal to provide a urine sample.
[10] I agree with Mr. Bouab that failing to stay at the collection area for the full two-hour collection period does not automatically result in a finding of guilt beyond a reasonable doubt in accordance with subsection 43(3) of the CCRA. In Ayotte v. Canada (Attorney General), 2003 FCA 429, this Court held that the act or omission under paragraph 40(l) of the CCRA must be voluntary to be culpable (Ayotte at para. 18).
[11] I also agree that the Chairperson accepted that Mr. Bouab was unable to provide a urine sample in the one hour and forty minutes he remained in the collection area despite his "“good efforts”" to do so. However, the Chairperson’s reasons, read as a whole and in their overall context, demonstrate that the Chairperson found that Mr. Bouab may have been able to provide a sufficient urine sample by topping up what he had already provided if he had stayed the extra twenty minutes allowed, given the amount of water he had consumed both before and during the testing period. By leaving the collection area early, Mr. Bouab essentially deprived himself of the ability to comply with the request by topping up the sample or, in the event he was unable to do so, to mount a defence that could have raised a reasonable doubt in the Chairperson’s mind that Mr. Bouab’s failure to provide a urine sample was involuntary. Mr. Bouab conflates the Chairperson’s acceptance of the evidence with the acceptance of Mr. Bouab’s defence. . Dorsey v. Canada (Attorney General)
In Dorsey v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal considered habeas corpus where prisoners applied to transfer to lower-security prisons but were denied. In these quotes the court summarizes aspects of the federal prison system's 'security classification framework':B. SECURITY CLASSIFICATION FRAMEWORK
[12] The Correctional Service of Canada (“CSC”) classifies each offender as minimum, medium, or maximum security in accordance with ss. 17 and 18 of the Corrections and Conditional Release Regulations, SOR/92-620 (“CCRR”) under the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”). Offenders classified as either medium or maximum security must be reassessed every two years.
[13] Section 28 of the CCRA requires CSC to ensure that each offender receives the least restrictive classification and is placed in the least restrictive setting appropriate in the offender’s circumstances based on several relevant factors:28. If a person is or is to be confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which they are confined is one that provides them with the least restrictive environment for that person, taking into account
(a) the degree and kind of custody and control necessary for
(i) the safety of the public,
(ii) the safety of that person and other persons in the penitentiary, and
(iii) the security of the penitentiary;
(b) accessibility to
(i) the person’s home community and family,
(ii) a compatible cultural environment, and
(iii) a compatible linguistic environment; and
(c) the availability of appropriate programs and services and the person’s willingness to participate in those programs. [14] Under the CCRR, an inmate can grieve a reclassification decision with which they disagree. If the grievance process is not resolved to the inmate’s satisfaction, they can then appeal to the Commissioner of Corrections (or to a senior CSC staff member on the Commissioner’s behalf): ss. 74-82. And, of course, an inmate can subsequently seek judicial review in the Federal Court, which was not pursued in this case by either appellant. . Canadian Broadcasting Corporation v. Canada (Parole Board)
In Canadian Broadcasting Corporation v. Canada (Parole Board) (Fed CA, 2023) the Federal Court of Appeal considered an appeal from a JR of a Parole Board of Canada decision to refuse access to audio recordings of several parole hearings. In these quotes the court resolves the complex statutory issue by (unconvincing) resort to the Privacy Act [s.8(2)(m)(i)], where the public interest in the hearings is weighed with the privacy interests of the offenders:[71] Provision does exist for the disclosure of personal information in certain circumstances, notably under paragraph 8(2)(m) of the Privacy Act, which I reproduce once more for the sake of convenience:8 (2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
8 (2) Sous réserve d’autres lois fédérales, la communication des renseignements personnels qui relèvent d’une institution fédérale est autorisée dans les cas suivants :
...
(m) for any purpose where, in the opinion of the head of the institution,
(m) communication à toute autre fin dans les cas où, de l’avis du responsable de l’institution :
(i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or
(i) des raisons d’intérêt public justifieraient nettement une éventuelle violation de la vie privée,
(ii) disclosure would clearly benefit the individual to whom the information relates. ....
[89] As a result, I would allow the appeal from the Federal Court, set aside the Federal Court’s judgment, and allow the CBC’s application for judicial review and set aside the Board’s decision. Making the order that the Federal Court should have made, I would order:1)That the matter be returned to the Parole Board of Canada for reconsideration on the basis that the weighing of interests contemplated in subparagraph 8(2)(m)(i) of the Privacy Act must be undertaken with respect to each request on the basis of the considerations set out in paragraphs 77 to 84 of these reasons; ...
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