January 1994: The Knight Case -- A Brew of Excellent Quality
One of the major differences between Kent and Matsqui, reflecting Kentís maximum-security status, is much greater control of prisoner movement. Prisoners spend more time locked on their ranges, and during such times, when they are not in their cells, they can be found in either the large pool room or the smaller TV room. The fact that these are "common" recreational areas gives rise to legal issues when prisoners are charged with possession of forbidden items. One such case involved Mr. Knight, who was charged with possession of contraband.
Officer Tyler testified that he had come on shift around 3:00 one afternoon and heard laughter coming from the TV room. The lights were off when he and Officer Chicoyne entered the room, where they detected the smell of brew. Mr. Knight and two other prisoners were present, and there were a variety of containers on the coffee table. These included a large jug half-full of orange juice, a small Maalox bottle half-full of clear liquid with the odour of brew, a cup half to three-quarters full of a substance which smelled of brew, a container holding a brew-like liquid and mash, and a black plastic bag full of mash and brew. The cup and the jug were within armís length of all three prisoners. After seizing the items Officer Tyler had phoned the correctional supervisor, who asked whether the prisoners seemed to be under the influence. Upon his confirmation that they were not, the prisoners were allowed to go back to their cells. They were observed during the rest of the shift, and Mr. Knight and a second prisoner were not seen to be in any abnormal state; however, the third prisoner was. Mr. Routley asked whether the contraband alleged to be brew had been tested for alcohol content. Officer Tyler said it had not. Mr. Routley asked Officer Tyler how, in the absence of a test, he could tell it was alcohol. He replied, "My experience with brew."
Officer Chicoyne then gave his evidence. As he was identifying the various items that had been seized, he referred to a bag of "brew mash." Mr. Routley asked him whether he had ever made a brew, and Officer Chicoyne said he had. At the conclusion of Officer Chicoyneís evidence, Mr. Routley asked him, "Is there anything that could satisfy me that what we are dealing with here is an intoxicant? At other institutions the practice is to test the sample to confirm that it is alcohol. In the absence of that test, how am I to conclude that it is an intoxicant?" Officer Chicoyne responded, "You could take a drink of it. I did. I took a sip of it in the cup. The reason I did that is that there was a jug of orange juice on the table and I wanted to see what we were dealing with. I suspected that the orange juice was being used to dilute the brew." Mr. Routley asked Officer Chicoyne what he was able to determine from sampling the liquid, and the officer responded with the appreciation of a connoisseur, "It was a brew of excellent quality. It took my breath away." Mr. Knight tried to hide a smile at this unexpected compliment for prisonersí brew-making skills.
Mr. Knight then asked Officer Chicoyne, "Did I appear to be under the influence of anything? I was not taken to the hospital, was I?" Officer Chicoyne confirmed that Mr. Knight was not taken to the hospital. The staffís purpose was to control and diffuse the situation, he said, and they had been successful in doing that. Mr. Knight went on to argue that the TV room was open to all prisoners on the range and that he had been in the room for only a couple of minutes when the officers arrived. Officer Chicoyne confirmed that the room was open to other prisoners.
Mr. Routley then proceeded to give his judgement, stating, "I donít need to hear from you, Mr. Knight. I accept that this material is contraband but I donít see anything linking you to it, and therefore Iím finding you not guilty."
After Mr. Knight had left the room, the institutional advisor, Diane Knopf, asked Mr. Routley, "What do we need to establish possession in a common room?" Some evidence linking the prisoner to the material, Mr. Routley replied; for example, that the cup in which the brew was found belonged to him or that he was impaired. In this instance, there was no evidence of Mr. Knight being impaired, and physical presence alone was not enough to establish the necessary elements of possession. Ms. Knopf was obviously upset at the turn of events, and she asked Mr. Routley, "Have you ever walked into a room where a brew party is going on?" Mr. Routley acknowledged that he had not, and Ms. Knopf advised him that it was "a tense, emotional, and very difficult situation for staff." Mr. Routley responded, "That may be so, but a tense, emotional atmosphere canít justify a charge."
Mr. Routley asked Ms. Knopf whether it was the practice at Kent to do an analysis of contraband believed to be alcohol. She said that it was not, and that Mr. Fox did not require such proof. Mr. Routley advised her that the issue had been raised at the meeting of Independent Chairpersons in November 1993 and it was agreed then that an analysis would be required as necessary proof. He suggested that the court clerk get a copy of the certificate of analysis used at Matsqui. (The necessity for evidence indicating the level of alcohol content -- in order to prove that a substance had the potential to impair or alter judgement and behaviour -- and the insufficiency of an officerís testimony as to the texture and odour given off by the substance were later affirmed by the Federal Court, in the judgement of Mineau v. Besnier,  F.C.J. No. 459 ).
There was a further discussion initiated by Ms. Knopf as to the difficulty of making recommendations on an appropriate sentence, because of the different sentencing practices of each Independent Chairperson. She said this was a real problem when it came to suggesting an appropriate fine. One Chairperson would think that $15 was a reasonable fine and in exactly the same circumstances another would impose $30. Mr. Routley said one of his functions as Senior Independent Chairperson was to try to ensure consistency. Ms. Knopf responded that when it came to sentencing, there did not seem to be much evidence of that.
Ironically, as I would discover, one of the major contributors to sentence disparity at Kent was that, in contrast to at Matsqui, there were frequent changes in the institutional advisor. I observed significant differences in the sentencing recommendations individual advisors made to the Independent Chairperson.
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