McWhinney v. Canada ( Commissioner of Corrections )
T-862-95
Campbell J.
26/7/96
20 pp.
Application for judicial review of Inmate Disciplinary Court of Edmonton Institution decision finding applicant guilty of offence contrary to Corrections and Conditional Release Act (CCRA), s. 40(1) (failing to provide sample of urine for analysis)-In October 1994, applicant granted full parole on condition he reside at Gunn Centre when bed space became available and other conditions-Centre could not accommodate applicant immediately and Board scheduled new hearing-Before hearing, while at Edmonton Institution, urine sample demanded from applicant (for second time in four months) pursuant to program of random selection-Applicant refused, afraid sample would be tampered with to justify refusal of parole-Independent Chairperson of Inmate Disciplinary Board rejected applicant's argument not "inmate" within meaning of CCRA and concluded "mistake of fact" (applicant's belief in conspiracy to deny him parole) not valid defence to charge facing applicant-Application allowed, order quashed-Applicant "inmate" when urine sample demanded as conditions of parole had not yet been met-As to mistake of fact, Disciplinary Board had duty to act fairly toward applicant-No reason to find mistake of fact could not be valid defence to charge applicant was facing-Therefore, Board's decision depriving applicant of opportunity to present his only defence did not give applicant full and fair hearing-Fact finding of guilt appearing on applicant's record and likely will have impact on any subsequent parole decision would work serious injustice with respect to applicant-Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 40(1).