Richards v. Canada

Richards v. Canada
Court (s) Database
Federal Court Decisions
Date
2022-12-20
Neutral citation
2022 FC 1763
File numbers
T-1471-15
Decision Content
Date: 20221220
Docket: T-1471-15
Citation: 2022 FC 1763
Ottawa, Ontario, December 20, 2022
PRESENT: Mr. Justice Norris
BETWEEN:
RYAN RICARDO RICHARDS
Plaintiff
and
HIS MAJESTY THE KING
Defendant
TABLE OF CONTENTS
I. INTRODUCTION 3
II. SUMMARY OF FINDINGS 6
III. BACKGROUND 10
A. Mr. Richards’ Application for Habeas Corpus 12
B. Other Litigation Concerning the Use of Administrative Segregation 14
IV. THE SEPTEMBER 30, 2013 INCIDENT 21
A. The Security Camera Video Recording 21
B. The Absence of Other Recordings of the Incident 24
C. Events Leading Up to the September 30, 2013 Incident 26
D. Events on September 30, 2013 27
(1) The Mid-Day Meal Delivery 27
(2) 12:28:00 p.m. to 12:43:43 p.m. 29
(a) The Discharge of OC Spray 32
(b) The Efforts to Subdue Mr. Richards 40
(c) The Decontamination Shower and Afterwards 46
(3) The Post-Use of Force Medical Assessment 50
E. Mr. Richards’ Legal Claims in Relation to the Use of Force on September 30, 2013 53
(1) Private Law Claims 53
(2) Constitutional Tort Claims 55
V. THE SEPTEMBER 30, 2013, PLACEMENT IN ADMINSTRATIVE SEGREGATION 58
A. Introduction 58
B. Mr. Richards’ Legal Claims Regarding the Administrative Segregation Placement 60
(1) Private Law Claims 60
(2) Constitutional Tort Claims 62
VI. THE INVESTIGATION OF THE OCTOBER 2013 INCIDENT 63
A. The Assault Allegation 63
B. Administrative Segregation Placement at Springhill Institution 63
C. Reclassification to Maximum Security/Transfer to Atlantic Institution 66
D. Restoration of Medium Security Classification/Transfer to Dorchester Institution 68
E. The Findings of the Habeas Corpus Application Judge 68
F. Mr. Richards’ Legal Claims Relating to the Investigation of the Assault Allegation 71
(1) Private Law Claims 71
(2) Constitutional Tort Claims 75
VII. THE TRANSFER TO DORCHESTER INSTITUTION 78
A. Introduction 78
B. Mr. Richards’ Legal Claims Relating to Dorchester Institution 79
VIII. REMEDIES 80
A. Introduction 80
B. Private Law Damages 81
(1) General Damages 81
(a) The September 30, 2013, Use of Force Incident 81
(b) The Placement in Administrative Segregation at Springhill from September 30, 2013, until October 8, 2013 86
(c) The Assault Investigation and Its Consequences 86
(2) Special Damages 88
(3) Punitive Damages 88
C. Damages as a Charter Remedy 89
(1) General Principles 89
(2) The Principles Applied 92
(a) The September 30, 2013, Use of Force Incident 92
(b) The Placement in Administrative Segregation at Springhill from September 30, 2013, until October 8, 2013 94
(c) The Assault Investigation and Its Consequences 95
(d) The Placement in Administrative Segregation at Dorchester from April 9, 2014, until September 22, 2014 96
IX. PRE- AND POST-JUDGMENT INTEREST 97
X. COSTS 98
XI. CONCLUSION 98
JUDGMENT AND REASONS
I. INTRODUCTION
[1] In 2013 and 2014, Ryan Ricardo Richards was an inmate at three federal penitentiaries in the Atlantic Region. He alleges that during this time he was subjected to a prolonged course of unlawful treatment by Correctional Service Canada (“CSC”) employees and officials, including the excessive use of force, unwarranted institutional transfers, and placements in administrative segregation (commonly known as solitary confinement). In this action against the federal Crown, Mr. Richards seeks, among other relief, damages for several private law torts he alleges were committed against him as well as damages for violations of his rights under the Canadian Charter of Rights and Freedoms.
[2] The treatment of inmates in federal correctional institutions is governed by the Corrections and Conditional Release Act, SC 1992, c 20 (“CCRA”), the Corrections and Conditional Release Regulations, SOR/92-620 (“CCRR”), Directives issued by the Commissioner of CSC, and laws of general application such as the Charter, the Canadian Human Rights Act, RSC 1985, c H-6, and the common law.
[3] It should be observed at the outset that Mr. Richards (who is self-represented) has a thorough understanding of the laws and policies governing CSC and a keen sense of his rights as an inmate. It is also fair to say that he left no stone unturned when he drafted the pleadings that commenced this action. This is not meant as a criticism. One can certainly understand why, from his point of view, it was prudent to frame the action as broadly as he could. At the same time, the broad scope and lack of focus of his pleadings created certain challenges for the Crown in defending the action and for the Court in adjudicating it.
[4] In September 2015, Mr. Richards brought two actions against the Crown in which he raised similar allegations against the same parties – the present action under Court File No. T-1471-15 and a second action under Court File No. T-1472-15. On the defendant’s motion, on November 24, 2015, Prothonotary Morneau ordered that the two matters be consolidated under T-1471-15. Prothonotary Morneau also struck out a number of the claims in both statements of claim on the basis that Mr. Richards had failed to exhaust the administrative remedies available to him under the offender grievance process. Mr. Richards was directed to file an amended statement of claim in this matter, which he eventually did on June 24, 2016.
[5] The amended statement of claim is still sweeping in its breadth, covering a wide range of private law claims as well as alleged breaches of Mr. Richards’ rights under sections 2(a), 7, 8, 9, 10, 12 and 15 of the Charter. As well, in addition to monetary damages, Mr. Richards seeks declarations that various provisions of the CCRA and the CCRR were violated as well as an order of mandamus compelling the Commissioner of CSC to make certain changes to his correctional records. Moreover, many of the documents included in the parties’ Joint Book of Documents at Mr. Richards’ request relate to matters that were struck from the original statements of claim (including numerous complaints and grievances concerning alleged misconduct by CSC in a multitude of respects), relate to matters that fall outside the temporal scope of this action, or are otherwise simply irrelevant.
[6] Once the trial of this matter was underway, however, it became clear that the crux of the action was an incident at Springhill Institution on September 30, 2013, in which Mr. Richards alleges he was subjected to an excessive use of force by CSC employees, his placement in administrative segregation for approximately one week following this incident, CSC’s investigation of an unrelated assault allegation in October 2013, and the consequences for Mr. Richards that flowed from that investigation, including a security re-classification, involuntary institutional transfers, and further placements in administrative segregation. These incidents were the focus of Mr. Richards’ own testimony as well as his cross-examination of the Crown’s witnesses. While he did not expressly abandon his wider ranging claims, he did not press them, either. The Crown framed its defence to the action accordingly.
[7] While the Crown defended the action on a number of grounds, it should be noted that there is no issue that the defendant would be vicariously liable for any wrongful acts found to have been committed by CSC employees or officials: see Crown Liability and Proceedings Act, RSC 1985, c C-50, sub-paragraph 3(b)(i).
[8] The trial of this action proceeded over several weeks by way of videoconference. At the time, Mr. Richards was an inmate at Cowansville Institution in Quebec. He participated in the trial virtually from there; counsel for the defendant participated virtually from Halifax. All of the witnesses also appeared virtually.
[9] While it was less than ideal that the trial had to proceed by way of videoconference instead of in person in a courtroom, this was a necessary accommodation in light of the COVID-19 pandemic and prevailing circumstances at the time. I am satisfied that the parties were able to present their respective cases fully and fairly despite the challenges and limitations of this mode of proceeding.
II. SUMMARY OF FINDINGS
[10] In summary, for the reasons set out in detail below, I have reached the following conclusions:
· Mr. Richards was subjected to an excessive use of force at Springhill Institution on September 30, 2013, when members of the Emergency Response Team (“ERT”) sprayed him with OC spray (also known as pepper spray), subdued him with physical handling, restrained him with handcuffs, removed him from his cell, placed him in a shower, and eventually led him to the Administrative Segregation Unit.Their actions constituted the private law torts of battery and false imprisonment.Their actions also violated Mr. Richards’ rights under sections 7, 9 and 12 of the Charter.
· The placement of Mr. Richards in the Administrative Segregation Unit from September 30, 2013, until October 8, 2013, was an unwarranted and unlawful deprivation of his liberty and security of the person interests.It therefore constituted the private law tort of false imprisonment.It also violated Mr. Richards’ rights under sections 7, 9 and 12 of the Charter.As well, a strip search conducted in connection with this placement violated his rights under section 8 of the Charter.
· A CSC investigation into his alleged involvement in an attack on another inmate at Springhill Institution in late October 2013 led to Mr. Richards being placed in the Administrative Segregation Unit again, being reclassified from medium to maximum security, and being transferred involuntarily from Springhill to Atlantic Institution.As found by the Nova Scotia Supreme Court in an application for habeas corpus, the reclassification and transfer decisions were unlawful.On the basis of the findings of the application judge (which I adopt as my own), this investigation was conducted negligently.
· While Mr. Richards’ initial placement in the Administrative Segregation Unit at Springhill on October 29, 2013, was lawful in light of the information available to CSC at that time, there was no lawful basis to keep him there after November 7, 2013.This placement in administrative segregation from that point until his transfer to Atlantic Institution on December 12, 2013, therefore constituted the private law tort of false imprisonment.It also violated Mr. Richards’ rights under sections 7 and 9 of the Charter.On the basis of the Crown’s concession (which I explain in greater detail below), this prolonged placement in administrative segregation also violated Mr. Richards’ rights under sections 7 and 12 of the Charter independent of any connection to the negligent investigation.
· On January 16, 2014, approximately one month after his arrival at Atlantic Institution, Mr. Richards was placed in the Administrative Segregation Unit.He remained there until April 10, 2014.This placement together with the earlier placement in the Orientation Range constituted the private law tort of false imprisonment.These placements also violated Mr. Richards’ rights under sections 7 and 9 of the Charter.On the basis of the Crown’s concession, the prolonged placement in administrative segregation also violated Mr. Richards’ rights under sections 7 and 12 of the Charter independent of any connection to the negligent investigation.
· After his application for habeas corpus was granted, Mr. Richards was reclassified as medium security and transferred out of Atlantic Institution.However, instead of being returned to Springhill, he was transferred to Dorchester Institution and placed in the Administrative Segregation Unit there.Mr. Richards remained in administrative segregation at Dorchester from April 10, 2014, until September 22, 2014, when, at his request, he was transferred to Matsqui Institution in British Columbia.Mr. Richards alleges he was subjected to various forms of abusive treatment while at Dorchester.Since he either has or could have availed himself of other effective remedies for his transfer to Dorchester and his treatment there, his causes of action in these respects are not properly before the Court.As well, I am not satisfied that the placement in administrative segregation at Dorchester constituted the private law tort of false imprisonment, principally because Mr. Richards remained there at his own request.I also find that there is an insufficient nexus between that placement and the earlier negligent investigation to ground the defendant’s liability in tort for the administrative segregation placement at Dorchester.On the other hand, on the basis of the Crown’s concession, I find that the prolonged placement in administrative segregation at Dorchester violated Mr. Richards’ rights under sections 7 and 12 of the Charter.
· For having been subjected to the foregoing unlawful conduct, Mr. Richards is entitled to the private law remedy of damages as well as damages as a remedy under subsection 24(1) of the Charter. I award Mr. Richards damages totalling $165,000.The breakdown of this award will be explained below.
[11] For the sake of clarity, I confirm that, apart from those claims on which I expressly find in Mr. Richards’ favour, his action is otherwise dismissed.
[12] More particularly, Mr. Richards alleges, among other things, that CSC failed to accommodate his religious practices (and even wilfully impeded them on occasion) and that it engaged in religious profiling of him. On this basis, Mr. Richards contends that CSC violated his rights to freedom of religion and equality under, respectively, subsections 2(a) and 15(1) of the Charter. While I find fault with CSC in a number of ways, I can find no credible evidence that it acted in a discriminatory fashion, as Mr. Richards alleges. That being said, the matters of which Mr. Richards complains in these respects either were or could have been the subject of offender grievances or complaints under the Canadian Human Rights Act. Those are the appropriate forums in which to resolve these matters. Likewise, Mr. Richards’ allegations of CSC misconduct in connection with his application for habeas corpus either were or could have been the subject of offender grievances. Consequently, all of these matters fall outside the proper scope of this action and, accordingly, will not be considered further.
[13] Finally, several of Mr. Richards’ claims are framed in terms of breaches of statutory duties, something that, standing on its own, is not recognized as a tort in Canadian law: see The Queen (Can.) v Saskatchewan Wheat Pool, [1983] 1 SCR 205; see also see Gregory v Canada, 2022 FC 342. Generally speaking, the proper remedy for the breach of a statutory duty by a public authority is judicial review for invalidity rather than an action in tort: see Holland v Saskatchewan, 2008 SCC 42 at para 9. That being said, while the failure of correctional officials to follow governing law and policy does not, standing alone, give rise to any form of tort liability, it can be relevant to the determination of the claims that are properly included in this action: see Odhavji Estate v Woodhouse, 2003 SCC 69 at paras 30-31.
III. BACKGROUND
[14] Mr. Richards was born in Jamaica in November 1981. He moved to Canada when he was a child. He is a Canadian citizen. He identifies as a Black man. He is a convert to the Islamic faith.
[15] Mr. Richards completed high school but otherwise has had limited formal education.
[16] Mr. Richards is intelligent, thoughtful, and articulate. He can also be demanding and inflexible. He would probably be the first to admit that he is not always an easy person to deal with, especially in institutional settings.
[17] Mr. Richards has been incarcerated since October 2001, when he was arrested and charged with second-degree murder. He was 19 years of age at the time. Following a jury trial, in February 2003 Mr. Richards was convicted of second-degree murder. He was sentenced to life imprisonment.
[18] In March 2003, Mr. Richards was transferred from a local remand facility in Toronto to a federal penitentiary to serve his life sentence. Since then, he has been an inmate in numerous federal correctional institutions across Canada. Some of the transfers between institutions were at Mr. Richards’ request; many others were involuntary.
[19] These institutional transfers have posed many challenges for Mr. Richards, who has repeatedly had to adjust to new settings, as well as for CSC staff, who have had to learn how to work with him afresh after each transfer. Mr. Richards’ relationship with CSC has often been highly adversarial and, for better or for worse, this history has followed him from institution to institution.
[20] Mr. Richards himself would probably acknowledge that, with the benefit of hindsight, he has not always chosen the best or most constructive ways to raise his concerns about how he has been treated by CSC. Be that as it may, on more than a few occasions, his complaints have been determined to be well-founded. As well, some CSC staff have understood the challenges Mr. Richards has faced, have seen his potential, and have engaged productively with him. The mutual respect between these particular individuals and Mr. Richards was evident to me throughout the course of this trial.
[21] Mr. Richards’ institutional record as a federal inmate is far from unblemished. In 2004, he was convicted of possession of two prohibited weapons and sentenced to imprisonment for three months concurrent to his life sentence. In 2007, he was convicted of aggravated assault on another inmate and sentenced to imprisonment for 18 months concurrent to his life sentence. Numerous other incidents that did not result in criminal charges or convictions but that did give rise to various forms of institutional discipline (including placements in administrative segregation) and institutional transfers are also documented in Mr. Richards’ CSC records.
[22] The events that underlie the present action occurred in 2013 and 2014, when Mr. Richards was an inmate at three correctional institutions operated by CSC in the Atlantic Region: Springhill Institution in Nova Scotia, Atlantic Institution in New Brunswick, and Dorchester Penitentiary in New Brunswick. Mr. Richards had been transferred from Ontario to Springhill involuntarily in 2010. He remained in the Atlantic Region until September 2014, when he was transferred voluntarily to British Columbia.
[23] Springhill and Dorchester are designated as medium security institutions; Atlantic is designated as maximum security. At the relevant times, all three institutions had Administrative Segregation Units where inmates could be placed in what is commonly known as solitary confinement.
[24] Apart from the incident involving the ERT officers on September 30, 2013, generally speaking there is little dispute about the events that underlie this litigation or their legal implications. This is because of two important circumstances that provide the context in which the present action was litigated. The first is the disposition of an application for habeas corpus brought by Mr. Richards in early 2014. The second is the disposition of other litigation concerning the use of administrative segregation in federal correctional institutions.
A. Mr. Richards’ Application for Habeas Corpus
[25] As mentioned above, and as will be discussed in greater detail below, in late October 2013, Mr. Richards was placed in administrative segregation at Springhill as a result of the information suggesting that he had been involved in an attack on another inmate. In December 2013, he was reclassified from medium to maximum security and then transferred involuntarily from Springhill Institution to Atlantic Institution because of this same information.
[26] On November 26, 2013, Mr. Richards filed an application for habeas corpus in the Nova Scotia Supreme Court. At that time, the only CSC decision under review was his placement in administrative segregation at Springhill. Subsequently, however, the scope of the habeas corpus application was broadened to include the lawfulness of the reclassification decision as well as the resulting involuntary transfer to Atlantic Institution. By the time the habeas corpus application was heard, Mr. Richards was no longer in administrative segregation at Springhill, rendering that part of the application moot. (The procedural history of the habeas corpus application is set out in a preliminary ruling by the application judge, the Honourable Justice Van den Eynden, confirming the jurisdiction of the Nova Scotia Supreme Court to hear the application even though Mr. Richards had by then been transferred to a correctional institution in New Brunswick: see Richards v Springhill Institution, 2014 NSSC 120 at paras 3-16.)
[27] In a decision dated April 2, 2014, the application judge granted the application for habeas corpus: see Richards v Springhill Institution, 2014 NSSC 121. The Court concluded that the decisions to reclassify Mr. Richards from medium to maximum security and to transfer him involuntarily from Springhill to Atlantic were unlawful. Appeals by the Crown with respect to the jurisdictional ruling and the merits of the habeas corpus application were dismissed by the Nova Scotia Court of Appeal on April 30, 2015: see Springhill Institution v Richards, 2015 NSCA 40.
[28] As a result of the habeas corpus decision, CSC restored Mr. Richards’ medium security classification and transferred him out of Atlantic Institution. CSC determined, however, that it was not appropriate to return him to Springhill; instead, Mr. Richards was transferred to Dorchester Institution.
[29] In concluding that the December 2013 reclassification and transfer decisions were unlawful, the application judge made several adverse findings concerning CSC’s investigation of the assault allegation against Mr. Richards. Quite properly, in the present proceeding, the Crown did not seek to re-litigate matters determined in Mr. Richards’ favour in the habeas corpus application. The Crown accepts that it is bound by the application judge’s findings. This has narrowed the points in dispute in this regard significantly. The relevant findings will be discussed in detail below.
B. Other Litigation Concerning the Use of Administrative Segregation
[30] The resolution of parallel litigation concerning the use of administrative segregation in federal correctional institutions has also narrowed the contentious issues in this action.
[31] By way of further background, the CCRA had long provided for the placement of federal inmates in administrative segregation. While conditions in administrative segregation units may vary somewhat from institution to institution, fundamentally these units were a “prison within a prison” (Martineau v Matsqui Disciplinary Board, [1980] 1 SCR 602 at 622). Sometimes they were used for the safety of the inmate; often they were used for disciplinary purposes or for reasons of institutional safety or security.
[32] Whatever the reason for the placement, individuals placed in an administrative segregation unit would be confined to a small cell alone for 22 hours or more each day. They would be completely removed from the general prison population, they would have little direct contact with correctional staff, and access to programs and amenities (including exercise and fresh air) would be either highly restricted or prohibited entirely. As a result, individuals held in administrative segregation would have little meaningful human contact – hence the use of the term “solitary confinement” to describe this practice.
[33] The harmful effects of prolonged periods in solitary confinement are well-documented and the practice of using solitary confinement has been widely condemned. For example, the United Nations Standard Minimum Rules for the Treatment of Prisoners (also known as the Nelson Mandela Rules) prohibits solitary confinement for longer than 15 days: see Rules 43-45.
[34] The use of solitary confinement in federal correctional institutions has been challenged successfully in several recent Canadian court proceedings.
[35] In Canadian Civil Liberties Association v Canada (Attorney General), 2019 ONCA 243, 144 O.R. (3d) 641, the Court of Appeal for Ontario struck down sections 31 to 37 of the CCRA, which authorized administrative segregation in federal penitentiaries, on the grounds that administrative segregation amounts to solitary confinement and that subjecting an inmate to solitary confinement for longer than 15 days constitutes cruel and unusual punishment contrary to section 12 of the Charter. The Court stated that “prolonged administrative segregation [i.e. more than 15 days] causes foreseeable and expected harm which may be permanent, and which cannot be detected through monitoring until it has already occurred” (at para 5). The Court of Appeal concluded that the CCRA lacked the safeguards necessary to prevent inmates from remaining in segregation for more than 15 days and, thus, to prevent grossly disproportionate treatment: see paras 113-15. Notably, the federal Crown had not appealed the finding of the application judge below that the legislation also violated section 7 of the Charter because it does not provide for an independent review of the decision to place an inmate in administrative segregation: see Corporation of the Canadian Civil Liberties Association v Her Majesty the Queen, 2017 ONSC 7491, 140 O.R. (3d) 342.
[36] A few months later, in British Columbia Civil Liberties Association v Canada (Attorney General), 2019 BCCA 228, 377 C.C.C. (3d) 420, the British Columbia Court of Appeal struck down sections 31 to 37 of the CCRA on the grounds that they violated section 7 of the Charter by authorizing prolonged administrative segregation (i.e. more than 15 days) that deprives persons of life, liberty or security in a manner that is grossly disproportionate to the law’s objectives, and because the provisions did not provide for independent review of administrative segregation decisions.
[37] The Attorney General of Canada was granted leave to appeal both of these decisions to the Supreme Court of Canada but it discontinued the appeals in April 2020. Meanwhile, in November 2019 the relevant provisions of the CCRA were repealed and replaced with provisions establishing and regulating the use of what are now termed structured intervention units: see sections 31 to 37.91 of the current Act.
[38] At the same time as these constitutional challenges to the use of administrative segregation were proceeding, class actions on behalf of federal inmates who had been confined in administrative segregation were also underway. For present purposes, the most pertinent of these class actions is Reddock v Canada (Attorney General). This action was commenced in the Ontario Superior Court of Justice in 2017. It was certified as a class proceeding in June 2018: see Reddock v Canada (Attorney General), 2018 ONSC 3914. A second class action was also certified in Ontario: see Brazeau v Canada (Attorney General), 2016 ONSC 7836. (A third class action was also underway in Quebec on behalf of federal inmates in that province.)
[39] In Reddock, the class is defined to consist of all offenders in federal custody who were involuntarily subjected to prolonged (defined as at least 15 consecutive days) administrative segregation between November 1, 1992 and the present, and were still alive on March 3, 2015. In Brazeau, the class consists of offenders in federal custody between November 1, 1992 and the present who were placed in administrative segregation, were diagnosed with or suffered from serious mental illness, and were still alive on July 20, 2013. The members of the Brazeau class are excluded from the Reddock class.
[40] In March 2019, partial summary judgment in favour of the representative plaintiff was granted in Brazeau: see 2019 ONSC 1888. In August 2019, summary judgment in favour of the representative plaintiff was granted in Reddock: see 2019 ONSC 5053. In both cases, the motion judge (the Honourable Justice Perell) found Canada liable in damages for breach of the class members’ Charter rights. In Reddock, the motion judge found that Canada was also liable for systemic negligence in the use of administrative segregation, although he awarded only one set of damages to account for both the breach of the Charter and the negligence claim. In both matters, the motion judge awarded a base level of aggregate damages and directed that a process for adjudicating individual claims by class members be established.
[41] The federal Crown appealed the summary judgments in both Brazeau and Reddock. The central issue in both appeals was the Crown’s liability for damages for breaches of sections 7 and 12 of the Charter. The finding of liability on the basis of systemic negligence in Reddock was also challenged on appeal.
[42] The two appeals were heard together and dealt with in a single decision: see Brazeau v Canada, 2020 ONCA 184. The Court of Appeal for Ontario allowed the appeal in Reddock on the issue of systemic negligence but otherwise upheld the summary judgment findings on liability and damages. The Crown’s liability was also upheld in Brazeau but the appeal was allowed with respect to the aggregate damages award and that issue was remitted to the motion judge for reconsideration. That reconsideration was completed later in 2020: see Brazeau v Canada (Attorney General), 2020 ONSC 3272.
[43] Against this jurisprudential backdrop, in the present matter, the Crown does not dispute that prolonged placement in administrative segregation (i.e. greater than 15 days) violates sections 7 and 12 of the Charter. Nor does the Crown contest that, at least in principle, Mr. Richards is entitled to damages on this basis for his prolonged placements in administrative segregation. Rather, the Crown contends that, since Mr. Richards did not formally opt out of the Reddock proceeding (the deadline to do so absent leave of the Court was September 19, 2018), he is a member of the class and is therefore entitled to damages in that proceeding. Accordingly, the Crown maintained that Mr. Richards should pursue any relief in this regard through that proceeding (including the individual claims determination process, if he so chooses).
[44] On the other hand, Mr. Richards has confirmed repeatedly and in no uncertain terms that he has had and will have nothing to do with this other litigation.
[45] In a pre-trial motion, the Crown sought an order under subsection 50(1) of the Federal Courts Act, RSC 1985, c F-7 (“FCA”) staying those aspects of the present action relating to Mr. Richards’ placements in administrative segregation. On March 1, 2021, I dismissed the motion from the bench for brief oral reasons. Written reasons were provided subsequently: see Richards v Canada, 2021 FC 231.
[46] In closing submissions at trial, the Crown renewed its request that this Court defer to the Reddock class proceeding for the determination of any damages to which Mr. Richards is entitled due to his prolonged placements in administrative segregation. As I indicated at that time, I was still not persuaded that doing so would be in the interests of justice given the particular circumstances of this case.
[47] The drafting of these reasons has been a very lengthy process. Given the amount of time that had passed since the conclusion of the hearing, last spring the Court invited the parties to provide an update on any relevant developments in the class proceedings.
[48] The Crown provided a helpful summary of the claims determination process that had been established in the class proceedings. In brief, the Crown confirmed that, as a member of the Reddock class, Mr. Richards would be eligible for an equal share of the $28 million lump sum award in the class actions. It was estimated that, at a minimum, he would be entitled to an award of approximately $2,200: see Brazeau v Canada (Attorney General), 2020 ONSC 7229 at para 50. Alternatively, through individual claims processes, he could seek damages of either up to or more than $50,000 (the amount claimed would determine the procedure to be followed). As I understand the latter processes, even if Mr. Richards were to advance an individual claim, he would still be entitled to a minimum share of the aggregate award.
[49] Mr. Richards confirmed once again that he had no intention of advancing any claims through the class proceeding.
[50] The Crown also noted that the eligibility period for making a claim as a Reddock class member would be closing on September 7, 2022. That deadline has now come and gone. There has been no indication that Mr. Richards changed his mind and submitted a claim in the class proceeding.
[51] While the Crown would obviously have preferred that this aspect of the case be dealt with elsewhere, it nevertheless acknowledged that it was bound by the determinations that prolonged administrative segregation violates sections 7 and 12 of the Charter and that this potentially gives rise to an entitlement to damages as a remedy. This has further narrowed the contentious issues in the present action.
IV. THE SEPTEMBER 30, 2013 INCIDENT
A. The Security Camera Video Recording
[52] Before examining the September 30, 2013, incident in detail, it may be helpful to begin by describing a key piece of evidence on which several of my factual determinations turn. This is a video recording of events in the area of Mr. Richards’ cell at Springhill Institution on the day in question.
[53] The unit in which Mr. Richards’ cell was located has two levels. Mr. Richards’ cell was on the upper range of the unit. He was the sole occupant of the cell.
[54] There was a fixed security camera in the corridor immediately outside Mr. Richards’ cell. A recording made by this camera on September 30, 2013, was preserved by CSC following the incident and was entered into evidence.
[55] The camera provides a view down the length of the corridor on the upper range of the unit. There is no dispute that it does not capture the entire corridor. There is another section of the range behind this camera that was presumably covered by another camera (or cameras). There is no evidence concerning whether any effort was made to secure recordings from any other security cameras on the range or anywhere else Mr. Richards was taken on September 30, 2013. In any event, no such recordings were produced in this trial.
[56] The security camera that made the recording that was preserved is mounted at roughly ceiling height; as a result, the view is from above and on a slight downward angle. The area covered by the camera is well lit with natural and artificial lighting. The video is in colour. The picture quality is reasonably good. There are no apparent gaps in the recording that was preserved. There is no sound.
[57] As it appears in the recording, Mr. Richards’ cell door is the one closest to the camera on the right hand side of the frame. The locking mechanism for the cell door is to the left of the door at roughly waist height. The cell door opens inwards. Viewed from the outside, the door swings open from left to right. There is a small observation window in the door. While it cannot be seen on the video, there is no dispute that the window can be covered from the inside by a “blocker” or privacy screen.
[58] The security camera has an unobstructed view of the area immediately outside Mr. Richards’ cell as well as down the length of the range. On the left hand side of the image is a metal railing overlooking the floor below. Also on the left hand side is a metal stairway leading down from the upper range to the lower floor. Most but not all of the stairway is visible in the video (the lowest steps are not visible). The camera captures only a small part of the lower floor. While it cannot be seen in the video, there is no dispute that there is a security “bubble” on the main floor below the area depicted in the recording. This is a secure area from which correctional staff monitor the unit.
[59] The video recording has a date stamp of September 30, 2013. At the beginning of the video, the time stamp reads 12:28:00 p.m. At the end, it reads 12:44:00 p.m. Someone from CSC – it is not clear who – made the decision to retain only this part of the recording for the day in question. While nothing relevant occurred in the area covered by the camera after 12:44:00 p.m., relevant events did occur in that area prior to 12:28:00 p.m. Those events will be discussed below. No evidence was presented as to why more of the recording was not preserved.
[60] The ERT members involved in the incident on September 30, 2013, are all clearly visible on the video recording. They are all wearing essentially identical tactical gear consisting of helmets, visors, face masks, body armour, jackets, pants, gloves, and heavy boots. It is generally possible to identify them and tell them apart on the video by the numbers on the back of their uniforms. These numbers have different colours to denote the officer’s home institution: red for Springhill and white for Dorchester. (ERT officers from Atlantic had yellow numbers but it does not appear that any of these officers were involved in the incident.) As well, the officers who testified at trial were able to identify themselves in the video and, in some cases at least, their colleagues as well. There is generally no issue as to the identities of the ERT members who had direct involvement with Mr. Richards during the material times on September 30, 2013.
[61] On the video recording, the incident involving Mr. Richards and the ERT members begins at 12:28:57 p.m., when the first three officers arrive at his cell door. The recording captures what happens next but only in part. Crucially, nothing that happens inside Mr. Richards’ cell or later in the shower is within view of the camera.
[62] Mr. Richards himself is not visible in the recording until he is led out of his cell at 12:30:15 p.m., after he has been pepper sprayed, subdued by the officers, and handcuffed. He then disappears off camera. He reappears at 12:41:58 p.m., as ERT officers guide him along the hallway, down the stairs, and out of view again. This is the last time Mr. Richards is seen in the video.
[63] While the video recording is highly reliable evidence of what happened within the camera’s view, unfortunately it does not capture all the material events or circumstances. Nevertheless, as I will explain below, I find that on the central issue of whether the use of force on September 30, 2013, was justified, the video supports Mr. Richards’ account and contradicts the officers’ accounts.
B. The Absence of Other Recordings of the Incident
[64] As will also be discussed below, Mr. Richards urges me to find fault with the ERT officers and to draw an adverse inference about the credibility of their evidence because they did not record the entire use of force incident with a hand held video camera.
[65] Mr. Richards is quite right that CSC procedures call for video recording from the outset when there is a pre-planned use of force, including when inmates are forcibly removed from their cells. However, the procedures Mr. Richards points to only apply when there is a pre-planned cell extraction or other use of force. While there is no question that Mr. Richards was removed from his cell by the use of force on September 30, 2013, I find that this was not a pre-planned cell extraction in the sense governed by the procedures for such things. Rather, it was the result of circumstances that arose without warning and escalated suddenly. In other words, at least at the outset, it was a spontaneous use of force. While I also find, as I explain below, that it was the ERT officers themselves who escalated the incident, there is no evidence that this was their intention when t