December 1993: The Nicholas Case -- The Difference a Lawyer Makes

The last case of 1993 was also the first one in my five months of observation where a prisoner was represented by legal counsel. Mr. Nicholas had been transferred to Kent Institution on the basis of three disciplinary charges and other allegations that he was involved in drug trafficking within Matsqui. He had been brought back from Kent to deal with the charges. The first charge was possession of contraband. Officer Shannon testified that during a lock-down she and Officer Stuart had conducted a search of Mr. Nicholas’ cell. In a desk drawer she found a brown pill-like item, together with a similar item which had been broken in two. Officer Stuart also discovered a light bulb with a crystal-like substance on the end of it. Officer Stuart then took these items to have them tested.

The Independent Chairperson, Mr. Walters, asked Officer Shannon if she had seen a copy of the certificate of analysis; she had not, so it was then shown to her. Mr. Zipp, counsel for Mr. Nicholas, stated that he was somewhat confused, because the certificate of analysis indicated the items seized were pieces of cotton wool; there was no reference to any pill-like substance or a light bulb. Mr. Gerl explained that some cotton balls found in the cell had also been tested and were found to be impregnated with heroin. That was the basis for the charge of contraband. The pills had been tested but did not register positive for any of the prohibited drugs. Mr. Seran, the institutional preventive security officer, testified next that the material he had tested as positive for heroin was in the form of a white powder. Officer Stuart was not called to give evidence, because just before the start of the hearing Mr. Gerl had discovered the officer was on the first of his rest days.

Mr. Walters then said that without calling upon Mr. Nicholas to answer to the charge, he was satisfied that a finding of not guilty should be entered. Officer Shannon’s evidence had no bearing on the drug on the cotton balls, which had tested positive for heroin; her evidence referred to pills and a light bulb. In the absence of any evidence by the institution linking the substance seized from Mr. Nicholas’ cell with that analyzed by Mr. Seran, this was self-evidently the only conclusion Mr. Walters could have drawn. Had Officer Stuart given evidence, as the charging officer who had taken the alleged contraband from Mr. Nicholas’ cell to Mr. Seran for analysis, the necessary relationship could perhaps have been established. However, the institution made no application for an adjournment to ensure that this evidence was given.

The second charge against Mr. Nicholas was refusing to provide a urine sample. Officer Buxton testified that the day after a lock-down, he was asked to have Mr. Nicholas provide a urine sample because the prisoner was suspected of being under the influence of drugs. Mr. Nicholas said he would provide a sample but could not at that moment, so Officer Buxton gave him the two hours allowed by the CCR Regulations. Mr. Nicholas was placed in a room and Officer Buxton checked back with him on several occasions. At the end of two hours, when Mr. Nicholas had not complied, he was charged.

Mr. Walters asked Officer Buxton the reason for requesting the sample. Officer Buxton replied that during the lock-down it was noticed that Mr. Nicholas had fresh needle marks on his arm. Mr. Walters asked the officer whether he had noticed this personally. Officer Buxton said that other staff members had observed it and written a report. The report was sent to Mr. Gerl, and on the basis of that Mr. Buxton was asked to make a demand of Mr. Nicholas. That was reasonable and probable grounds, and it was the standard procedure. Mr. Walters asked the officer whether he had seen the report himself, and he said he had not. The staff member who had made the observation was Officer Stuart, who was not available to give evidence. In the course of Mr. Walters’ questioning, Officer Buxton stated that Mr. Nicholas had actually provided a sample of urine but that it only contained 25 ml and test procedures required a minimum of 40 ml.

Mr. Zipp then cross-examined Officer Buxton, establishing that at 3:00 p.m. Mr. Nicholas had provided a sample. Officer Buxton said the sample was inadequate because it was neither the necessary quantity nor in the necessary temperature range. Mr. Zipp asked him how he knew the temperature, and Officer Buxton replied that the bottles used for collecting samples have a built-in thermometer. Mr. Zipp also asked Officer Buxton whether he was aware that the federal Department of Health and Welfare had sophisticated devices which could detect drugs in urine samples of far less than 25 ml. Officer Buxton said that he was not aware of those but the test at Matsqui required 40 ml. Following the cross-examination, Mr. Walters remarked that the basis for the charge was not that Mr. Nicholas had refused to provide a sample but that he had failed to provide what the institution regarded as a valid sample for testing purposes. Mr. Zipp then submitted that, because there was evidence that he provided a sample, Mr. Nicholas’ conduct did not fit within the ambit of the section under which he was charged.

Mr. Walters stated he was satisfied the institutional case had not been made. First of all, the evidence showed that Mr. Nicholas did provide a sample, and the section required a deliberate failure to provide it; "For want of 15 ml of urine, I am not prepared to convict Mr. Nicholas of a serious charge," he said. Second, the institutional witnesses failed to give evidence of reasonable grounds for making the demand in the first place. The legislation authorizes a staff member to demand that a prisoner submit to urine analysis where the staff member believes, on reasonable grounds, that the prisoner has committed or is committing the disciplinary offence of taking an intoxicant into his body. In this case, there was no evidence from the staff member alleged to have seen needle tracks in Mr. Nicholas’ arms, Officer Stuart, to provide the necessary evidentiary foundation for the demand.

The third charge against Mr. Nicholas was another one of contraband. Officer Duran testified that he had been asked to conduct a search of Mr. Nicholas’ cell. Mr. Nicholas, who had been sleeping, was asked to leave the cell, and, upon searching, Officer Duran discovered a drug outfit in the form of a syringe under Mr. Nicholas’ mattress. The officer produced the exhibit envelope, tagged by him, and testified as to the various components of the syringe: a plastic vial with a needle on the end, an orange plastic cup to protect the needle and a nail inserted into a small piece of sponge. Officer Duran explained that the syringe was all in one piece when he found it and that he had taken it apart when placing it in the exhibit envelope. In his experience, it was typical of the kind of outfit used to inject drugs. He also testified that he had not had the outfit tested for the presence of drugs. In cross-examination, Mr. Zipp established that, at Matsqui, prisoners are free to visit each other during certain hours.

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