The Teed Case
Mr. Teed faced a charge, originating in RPC, of failing to provide a urine sample. Mr. Teed was represented by Peter Benning, marking only the second time in seven months in which a prisoner was represented by legal counsel. The institutional witness from RPC was Bruce Laycock, the IPSO. Mr. Laycock testified that he was informed by the nursing staff that Mr. Teed was suspected of being in a condition other than normal. He was also informed that Dr. Glancy, a psychiatrist, had seen him and had done a little field test and was of the opinion that Mr. Teed was under the influence of something other than his prescription drugs. Mr. Laycock spoke to Dr. Glancy who suggested that Mr. Teed be given a urine sample. Mr. Laycock therefore prepared the necessary paperwork and had Dr. Glancy sign the notification to provide a sample. Mr. Laycock said that he reviewed all the material and found that there was sufficient grounds to make the demand. He explained to Mr. Teed the reasons for the demand and explained to him the process. Mr. Teed said that he had no objections to providing a sample. Mr. Laycock got the bottle ready and went through the paperwork with Mr. Teed which consisted of three principal documents. The first was the notification to provide a sample, the second was the medical authority to allow Mr. Laycock to consult with Health Care to find out what prescription medication Mr. Teed was on, and the third was the chain of custody form. Mr. Teed said that he understood the process and he signed the documents. He said he could not provide a sample at that point and Mr. Laycock said that was no problem and that he could wait. Mr. Teed was allowed to remain in the room and Mr. Laycock tried to provide him some privacy by half turning away but Mr. Teed still could not give the sample. Mr. Laycock then left the room and returned approximately three hours later, which was more than one hour beyond the period normally allowed, and asked again for a sample. He also stated that when he went back to ask Mr. Teed for the sample, he was nodding off and that he had to get very close to his ear for Mr. Teed to hear what he was saying. During the three hours Mr. Teed was supplied with two coffee pots of water. Mr. Laycock estimated that Mr. Teed drank up to 16 cups of water over that period. He also stated that the information he received was that Mr. Teed had been asleep in his cell for about an hour prior to being asked to leave his cell for the purpose of giving a sample. This meant that overall it would have been four hours since Mr. Teed had gone to the bathroom and, having now drunk 16 cups of water, he should have had no difficulty in providing a sample, given that the amount required is relatively small, being 40ml. Mr. Teed suggested that his prescribed medication (elavil) was impairing his ability to pee. Mr. Laycock went down to Health Care and looked at the pharmacy manual, which lists all the drugs and through his inquiries satisfied himself that this medication would aid, not impair, his ability to pee. He informed Mr. Teed of his findings.
Mr. Benning cross-examined Mr. Laycock along the following lines. He asked him whether Mr. Teed, in addition to saying that he had no objections to providing the sample, stated that he was not high and had not used drugs. Mr. Laycock replied "he did say that but I didn’t believe him based upon the other evidence I had." Mr. Benning asked what Mr. Laycock did after Mr. Teed had said that he had not used drugs. Mr. Laycock replied that since Dr. Glancy and the nurse had previously reported that he was in a condition other than normal and his own observations of Mr. Teed’s nodding off, blurred speech and red eyes had confirmed that, there was no need to make any further inquiries and in his view there was sufficient grounds to make the demand. Mr. Benning also asked Mr. Laycock to confirm that he was, in addition to the IPSO at RPC, the person designated as the urinalysis co-ordinator.
Mr. Benning then made a submission based upon the decision of the Independent Chairperson of Kent Institution, Dean Fox, in the Sinclair case handed down in March 1993. In the Sinclair case Dean Fox had said that the purpose of the legislation was to ensure that there was in place a process to review the request for a sample, having regard to the prisoner’s representations and although the regulations enabled the urinalysis co-ordinator to exercise the power of the institutional head to conduct the review, it was not lawful for the urinalysis co-ordinator to conduct that review where it was the co-ordinator himself who made the demand in the first place. As Dean Fox said in his decision, "The staff member who makes the demand pursuant to s. 57 of the CCRA should not also be the person to conduct the review under s. 62 of the CCR Regulations. This is so because the staff member, under s. 57 of the CCRA, must conclude that he/she has reasonable grounds to believe that the inmate has or is committing a s. 40(k) disciplinary offence and that the sample is necessary evidence. Having reached this conclusion, it is unreasonable to conclude that the same person could, with an open mind, review his/her own conclusions as well as the objections of the inmate" (Decision of Dean Fox in Kent Institution v. Sinclair, March 8, 1993).
Mr. Benning argued that the purpose of the legislative scheme, as interpreted by Dean Fox was that where a prisoner made representations to the effect that there were no reasonable grounds, because he was not high or under the influence, then this triggered the review process and this could not be carried out by the same person who made the demand. He submitted that Mr. Laycock’s evidence showed clearly that since Mr. Laycock, based upon his previous inquiry and own observations, was satisfied that there were reasonable grounds for the demand, he understandably saw no need to conduct any further review; therefore there had been no effective review as required by the legislative scheme. Moreover, that review could not be conducted by Mr. Laycock himself in his capacity as the urinalysis co-ordinator because, as in the Sinclair case, he was also the person who had made the demand. Mr. Routley asked Mr. Benning who was he suggesting should conduct the review. Mr. Benning responded that it should be done either by the warden or by whoever was acting warden if the warden was not available. Mr. Routley said that he wanted to review Dean Fox’s decision and would deliver written reasons to deal with Mr. Benning’s submissions.
A week later Mr. Routley gave his reasons for judgement. He wrote that he had reviewed the decision of Mr. Fox in the Sinclair case and agreed with its interpretation of the relevant legislative provisions. He stated that where a prisoner makes representations, whether in writing or orally, then those representations had to be reviewed by someone other than the officer who had made the demand for the urine sample in the first place. In Mr. Teed’s case, Mr. Laycock had been both the officer who made the demand and the officer who reviewed Mr. Teed’s representations that he had not used drugs. Mr. Laycock, in his evidence, had candidly admitted that he did not believe Mr. Teed. In this case Mr. Laycock’s reasonable grounds for making the demand were based on what was perhaps the best evidence in the form of the opinion of the institutional physician, who was in as good a position as anyone to examine Mr. Teed, observe his physiological reaction, and assess whether he was under the influence of non-prescription drugs. However, the requirement for an independent review, by someone other than the person who had made the demand, was not permissive, but obligatory, and had not been met in this case "with the result that I must find that the offence as charged is not proven and the matter is dismissed."
In the course of his reasons for judgement, Mr. Routley had commended Mr. Laycock as "a firm, effective and a very fair officer" whose evidence "was cogent and in all respects fair" and that "he had conducted himself with the proper respect for the dignity of the prisoner, but, nevertheless, the requirements of the law had not been met." At the conclusion of Mr. Routley’s judgement, the following exchange took place between Mr. Laycock and Mr. Routley:
Mr. Laycock : I don’t
believe it. I honestly don’t believe it.
Mr. Routley : Well, you can editorialise
if you wish, Mr. Laycock, but you can do so outside the room.
Mr. Laycock : Does the CSC have a mechanism
Mr. Routley : I have no idea.
Mr. Laycock : Unbelievable.
In a conversation almost two years after this hearing, Mr. Laycock identified Mr. Routley’s judgement in the Teed case as a "classic example" or how out of touch the Independent Chairpersons were with correctional reality and how in this case a prisoner who was clearly guilty as charged had been able to walk out of court, thumbing his nose at the authorities. He also saw the case as one which undermined the whole zero tolerance drug strategy. Mr. Laycock’s response was not unlike the response which many members of the public would give when hearing that a judge has dismissed a case against an accused who clearly committed the act with which he was charged on the grounds that the police violated his rights under the Charter of Rights and Freedoms, for example, by failing to advise him of his right to counsel or obtaining incriminating evidence through an unlawful search. As judges have gone to great pains to explain, the basis for such acquittals is not because the judiciary is antagonistic to effective law enforcement, but that a necessary part of the criminal justice system is the maintenance of the integrity of the system, which includes upholding fundamental rights and freedoms and ensuring that law enforcement remains within the four corners of its legal authority. In the same way the provisions of the CCRA regarding urinalysis are intended to provide a balance between providing correctional authorities with the means to address the abuse of drugs and providing prisoners with a means to challenge unreasonable demands made on them. Mr. Routley’s decision was one which gave effect to that balance; Mr. Laycock’s response was one which would have due process values subordinated to those of crime control.
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