Beauchamp v. Canada

Beauchamp v. Canada
Court (s) Database
Federal Court Decisions
Date
2022-01-17
Neutral citation
2022 FC 47
File numbers
T-1365-18
Decision Content
Date: 20220117
Docket: T-1365-18
Citation: 2022 FC 47
Ottawa, Ontario, January 17, 2022
PRESENT: Hon. Mr. Justice Henry S. Brown
BETWEEN:
MICHAEL BEAUCHAMP
Plaintiff
and
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Defendant
JUDGMENT AND REASONS
Table of Contents
I. Nature of the matter 2
II. Issues 3
III. Legal standard in negligence action 4
A. Statutory considerations 4
B. Jurisprudence 8
IV. Plaintiff’s background: convictions and time spent in federal prison 10
V. Discussion and analysis 11
A. Issue 1: Whether the Defendant’s servants, the staff at Beaver Creek institution (BCI) breached their duty of care to reasonably ensure the safety and health of the Plaintiff by not anticipating and taking measures to avoid the assault on the Plaintiff, thereby causing foreseeable harm to him by other inmates 12
(1) The assault and related issues 13
(2) Absence of pre-indicators 14
(3) Potential motive for assault: unpaid drug debt owed by Plaintiff 17
(4) Video surveillance 21
(5) Jurisprudence on security cameras: a) similar cases to the case at bar and b) camera placement a policy not operational decision 27
B. Issue 2: Whether the Defendant’s servants, health care and other staff at BCI breached their duties to reasonably protect the safety and health of the Plaintiff by subjecting him to unreasonable conditions in transporting him to and from hospitals and in placing him in segregation rather than in health care - related vehicles and accommodation, thereby foreseeably causing him harm; 42
(1) Use of transport van versus ambulance 42
(2) Placement and length of time in administrative segregation 49
(a) Length of time issue 50
(b) Administrative Segregation 51
(c) Intentional infliction of harm and punitive damages 58
C. Issue 3: Whether the Defendant is vicariously liable for the harm caused by wrongful conduct of her servants herein; 58
D. Issue 4: What award of damages is appropriate; 60
(1) Chronic jaw and related pain 62
(2) Alleged PTSD 66
(3) Amount of damages 68
E. Issue 5: What costs should be awarded to the successful party? 68
I.
Nature of the matter
[1] This is an action for damages for personal injuries to the Plaintiff’s jaw caused in an assault by unknown assailant(s) in 2017 while the plaintiff was an inmate at Beaver Creek Institution Medium [BCI]. BCI is a medium security facility in Ontario operated by Correctional Service of Canada [CSC] under the Corrections and Conditional Release Act, SC 1992, c 20 [CCRA] and the Corrections and Conditional Release Regulations, SOR/92-620 [CCRR]. CSC staff, who are servants of the Defendant, did not observe the assault. The action was tried under the Simplified Action rules of the Federal Courts Rules, SOR/98-106, ss.292-299.
[2] The Defendant denies liability, and asks that the action be dismissed with lump sum costs of $5,000.00. The Plaintiff did not provide a lump sum cost request as the Court asked him to do, however his Statement of Claim asks for costs on a substantial indemnity basis.
[3] The trial of this Simplified Action proceeded by the filing of affidavit evidence by the Plaintiff on which cross-examinations and re-direct took place. This procedure was followed by the Defendant in the same manner. There was no oral discovery. The parties filed a Joint Brief of Documents, the contents of which were agreed to be authentic consisting mainly of documents from CSC files. There was no reply evidence. Both parties were given time to file written submissions after the hearing, which they did. Both parties had the right to file written responding submissions, which neither did.
II. Issues
[4] The Plaintiff in his Closing Submissions frames the issues as follows, with slight modification by the Court to item D, and the addition of item E:
Whether the Defendant’s servants, the staff at Beaver Creek institution (BCI) breached their duty of care to reasonably ensure the safety and health of the Plaintiff by not anticipating and taking measures to avoid the assault on the Plaintiff, thereby causing foreseeable harm to him by other inmates;
Whether the Defendant’s servants, health care and other staff at BCI breached their duties to reasonably protect the safety and health of the Plaintiff by subjecting him to unreasonable conditions in transporting him to and from hospitals and in placing him in segregation rather than inhealth care- related vehicles and accommodation, thereby foreseeably causing him harm;
Whether the Defendant is vicariously liable for the harm caused by wrongful conduct of her servants herein;
What award of damages is appropriate; and
What costs if any should be awarded to the successful party?
III. Legal standard in negligence action
A. Statutory considerations
[5] Section 3 of the CCRA provides the purpose of the federal correctional system, overseen by CSC is to contribute to the maintenance of a just, peaceful and safe society in a number of ways including:
Purpose of correctional system
But du système correctionnel
3 The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by
3 Le système correctionnel vise à contribuer au maintien d’une société juste, vivant en paix et en sécurité, d’une part, en assurant l’exécution des peines par des mesures de garde et de surveillance sécuritaires et humaines, et d’autre part, en aidant au moyen de programmes appropriés dans les pénitenciers ou dans la collectivité, à la réadaptation des délinquants et à leur réinsertion sociale à titre de citoyens respectueux des lois.
(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and
BLANK
(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.
BLANK
[6] Section 4 of the CCRA provides the principles that guide CSC in achieving the purposes referred to in section 3 including:
Principles that guide Service
Principes de fonctionnement
4 The principles that guide the Service in achieving the purpose referred to in section 3 are as follows:
4 Le Service est guidé, dans l’exécution du mandat visé à l’article 3, par les principes suivants:
…
…
(c) the Service uses the least restrictive measures consistent with the protection of society, staff members and offenders;
c) il prend les mesures qui, compte tenu de la protection de la société, des agents et des délinquants, sont les moins privatives de liberté;
(d) offenders retain the rights of all members of society except those that are, as a consequence of the sentence, lawfully and necessarily removed or restricted;
d) le délinquant continue à jouir des droits reconnus à tout citoyen, sauf de ceux dont la suppression ou la restriction légitime est une conséquence nécessaire de la peine qui lui est infligée;
[7] Subsection 30(1) of the CCRA requires CSC to assign each inmate a security classification be it minimum, medium, or maximum:
Service to classify each inmate
Attribution de cote aux détenus
30 (1) The Service shall assign a security classification of maximum, medium or minimum to each inmate in accordance with the regulations made under paragraph 96(z.6).
30 (1) Le Service attribue une cote de sécurité selon les catégories dites maximale, moyenne et minimale à chaque détenu conformément aux règlements d’application de l’alinéa 96z.6).
[8] Section 18 of the CCRR, made pursuant to section 30 of the CCRA recognizes the three different security levels pertaining to the supervision and control of inmates:
18 For the purposes of section 30 of the Act, an inmate shall be classified as
18 Pour l’application de l’article 30 de la Loi, le détenu reçoit, selon le cas:
(a) maximum security where the inmate is assessed by the Service as
a) la cote de sécurité maximale, si l’évaluation du Service montre que le détenu:
(i) presenting a high probability of escape and a high risk to the safety of the public in the event of escape, or
(i) soit présente un risque élevé d’évasion et, en cas d’évasion, constituerait une grande menace pour la sécurité du public,
(ii) requiring a high degree of supervision and control within the penitentiary;
(ii) soit exige un degré élevé de surveillance et de contrôle à l’intérieur du pénitencier;
(b) medium security where the inmate is assessed by the Service as
b) la cote de sécurité moyenne, si l’évaluation du Service montre que le détenu:
(i) presenting a low to moderate probability of escape and a moderate risk to the safety of the public in the event of escape, or
(i) soit présente un risque d’évasion de faible à moyen et, en cas d’évasion, constituerait une menace moyenne pour la sécurité du public,
(ii) requiring a moderate degree of supervision and control within the penitentiary; and
(ii) soit exige un degré moyen de surveillance et de contrôle à l’intérieur du pénitencier;
(c) minimum security where the inmate is assessed by the Service as
c) la cote de sécurité minimale, si l’évaluation du Service montre que le détenu:
(i) presenting a low probability of escape and a low risk to the safety of the public in the event of escape, and
(i) soit présente un faible risque d’évasion et, en cas d’évasion, constituerait une faible menace pour la sécurité du public,
(ii) requiring a low degree of supervision and control within the penitentiary
(ii) soit exige un faible degré de surveillance et de contrôle à l’intérieur du pénitencier
[9] Section 70 provides CSC is responsible to take all reasonable steps to ensure that penitentiaries are safe for inmates and staff alike:
Living conditions, etc.
Conditions de vie
70 The Service shall take all reasonable steps to ensure that penitentiaries, the penitentiary environment, the living and working conditions of inmates and the working conditions of staff members are safe, healthful and free of practices that undermine a person’s sense of personal dignity.
70 Le Service prend toutes mesures utiles pour que le milieu de vie et de travail des détenus et les conditions de travail des agents soient sains, sécuritaires et exempts de pratiques portant atteinte à la dignité humaine.
B. Jurisprudence
[10] In the recent case of Canada v Greenwood, 2021 FCA 186, Justice Gleason confirmed the Supreme Court of Canada’s decision in Saadati v Moorhead, 2017 SCC 28, in which Justice Brown outlines the elements of negligence:
[154] Justice Brown outlined the elements of the tort of negligence at paragraph 13 of Saadati in the following terms: “[l]iability in negligence law is conditioned upon the claimant showing (i) that the defendant owed a duty of care to the claimant to avoid the kind of loss alleged; (ii) that the defendant breached that duty by failing to observe the applicable standard of care; (iii) that the claimant sustained damage; and (iv) that such damage was caused, in fact and in law, by the defendant’s breach.” To the extent that the Federal Court suggested otherwise or that different elements pertain in a systemic negligence claim, it erred.
[11] In Clements v Clements, 2012 SCC 32 [Clements], the Supreme Court of Canada described the “but for...” test as the basis for determining whether negligence caused harm:
[8] The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.
[12] I accept and agree with Justice Layden-Stevenson in Bastarache v Canada, 2003 FC 1463 at para 23 [Bastarache] where this Court held prison authorities such as CSC owe a duty to take reasonable care for the health and safety of inmates, such as the Plaintiff, while in custody:
[23] The defendant, as earlier stated, concedes the existence of a duty of care. The content of the duty is well established. The prison authorities owe a duty to take reasonable care for the health and safety of the inmate while in custody: Timm, supra; Abbott v. Canada (1993), 64 F.T.R. 81 (T.D.); Oswald v. Canada (1997) 1997 CanLII 16271 (FC), 126 F.T.R. 281 (T.D.). In addressing the duty of care, regard must be had to the circumstances surrounding the incident: Scott v. Canada, [1985] F.C.J. No. 35 (T.D.). An important consideration in the foreseeability of risk is the likelihood of the occurrence of the event giving rise to the risk. The issue is not whether there is a duty of care, but whether the acts or omissions of the defendant fall below the standard of conduct of a reasonable person of ordinary prudence in the circumstances: Russell v. Canada 2000 BCSC 650, [2000] B.C.J. No. 848; Hodgin v. Canada (Solicitor General) (1998), 1998 CanLII 28450 (NB QB), 201 N.B.R. (2d) 279 (Q.B.T.D.), aff'd., 1999 CanLII 1244 (NB CA), [1999] N.B.J. No. 416 (C.A.).
[13] I also agree as a general rule that CSC is not liable for damages for personal injuries arising from an assault on an inmate by another inmate where the institution did not have, or could not reasonably have had knowledge of one or more pre-indicators of violence: Subbiah v Canada, 2013 FC 1194 [per Aalto P] [Subbiah]. A pre-indicator is an event or circumstance that makes the possibility of violence more likely. The Court at paragraphs 75-76 stated, and I agree that liability for damages for personal injuries only arises where that harm is reasonably foreseeable:
[75] Mr. Subbiah argues that CSC was negligent because CSC staff failed to take reasonable care to protect his safety when they knew or ought to have known his safety was in jeopardy. There is a duty on prison officials to ensure the safety of inmates. This duty is accepted in Canadian law and arise from Ellis v Home Office, [1953] 2 All ER 146 (Eng CA) at 154 and adopted in Timm v Canada, [1965] 1 ExCR 174.
[76] However, there is no absolute liability on prison authorities to prevent all harm to inmates; liability generally flows only where correctional authorities have actual knowledge of harm. In other words, harm must be reasonably foreseeable. In Miclash v Canada, 2003 FCT 113, CSC was held liable for an attack on an inmate where CSC “should have known” that the inmate’s safety was compromised.
[Emphasis added]
IV. Plaintiff’s background: convictions and time spent in federal prison
[14] The Plaintiff is a male, former federal inmate currently 51 years old. According to the unchallenged report of the Parole Board of Canada [Parole Board] dated January 5, 2018 contained in the Joint Book of Documents, at the time of the alleged assault the Plaintiff was serving a seven-year sentence for a number of offences committed in 2009, including manslaughter, assault with a weapon, assault causing bodily harm, uttering threat, assault, and mischief.
[15] The Parole Board describes the 2009 manslaughter as follows: “On April 24, 2009, you followed employees who had escorted a man out of a bar and left him laying on the ground outside. You kicked him in the head and smashed him into a pole, before re-entering the bar. He was taken to hospital in a coma, and died a month later.”
[16] This was the Plaintiff’s second conviction for manslaughter, and third federal prison term. The Parole Board states: “Your criminal record includes convictions for property offences, and breaches of trust, and two previous federal sentences. Your first was in 1993 for Break & Enter with Intent, Assault. Fail to Comply x2, and Assault Causing Bodily Harm, after you assaulted your common-law spouse, and punching and kicking a man. Your second [previous federal sentence, ed.] was in 2002 for Manslaughter, after a child died in your care after being abused, you blamed her mother but pled guilty to avoid a murder charge. During both these incarcerations, you were identified as having weapons and participating in assaults.”
[17] The Plaintiff has a history of drug and alcohol abuse. For that reason, the Parole Board imposed a special condition on his conditional release decision dated January 5, 2018, that he abstain from alcohol and drugs other than prescribed medications. His history of drug and alcohol abuse was outlined in the 2013 sentencing decision of the British Columbia Supreme Court for convictions including the 2009 manslaughter: “[18] Substance abuse has a role in these offences. Mr. Beauchamp began drinking alcohol when he was 14 years old. At 23 years old when in custody, he began using both cocaine and heroin. His cocaine use commenced with recreational use, but it later escalated to heavy use of both cocaine and heroin. During this time, Mr. Beauchamp was arrested for manslaughter and spent approximately eight years in jail. During the time in jail, he stopped using cocaine and heroin. He has not returned to being a heavy drug user since and he has not used heroin since that time. However, alcohol abuse continues to be a factor in his life. At the time of the offence to which the manslaughter plea has been entered and accepted, Mr. Beauchamp was drinking and was intoxicated.”
[18] By the time of the assault, the Plaintiff had spent 9 years and eight months in federal prisons.
V. Discussion and analysis
[19] I turn to the issues raised by the Plaintiff.
A. Issue 1: Whether the Defendant’s servants, the staff at Beaver Creek institution (BCI) breached their duty of care to reasonably ensure the safety and health of the Plaintiff by not anticipating and taking measures to avoid the assault on the Plaintiff, thereby causing foreseeable harm to him by other inmates
[20] As set out in greater detail below, I find there is no reliable evidence of any pre-indicators of harm against the Plaintiff. Thus, the Plaintiff’s issue ultimately resolves into whether there was a duty of care, and if so whether CSC breached its duty in terms of providing supervision through camera surveillance or directly of the area where the Plaintiff claims he was assaulted. To put this discussion in context, I will set out the circumstances of the assault. A key issue is whether there was reasonable video camera surveillance of the area where the Plaintiff claims the assault took place. I find that there was.
[21] In summary, and contrary to the Plaintiff’s evidence and allegations, I am not satisfied the Plaintiff established on a balance of probabilities where the assault took place. However, assuming it took place in the area he claims, I find that area was covered by reasonable video surveillance, namely a pan-and-tilt camera operated remotely by prison guards. I also reject the Plaintiff’s allegation he was assaulted in a “blind spot”, that is, an area without video camera surveillance. I also find the placement and type of video camera security CSC used where the Plaintiff claims the assault took place conformed with CSC policy, such that CSC is immune from liability for negligence in that connection. Overall, I have concluded on the evidence and law that CSC is not liable in negligence in terms of providing inadequate or unreasonable video surveillance of the areas of assault claimed by the Plaintiff.
[22] I emphasize the Plaintiff identified two areas of this multi unit prison as where the assault took place. I therefore consider prison video surveillance only in connection with these two areas.
[23] The Plaintiff’s allegations as to where he suffered his injury conflict: 1) he originally said he fell in his shower; therefore this Court reviewed a video review report prepared by prison staff concerning the area around his particular living unit. From this review, I conclude the Plaintiff’s original “fell in the shower” story was not truthful; it is not consistent with the prison’s video camera review. In the present action, the Plaintiff takes a different position. He now alleges 2) the assault took place in an entirely different location. I have reviewed this allegation and find on a balance of probabilities that the area he now claims the assault took place was not where it took place either. This is because there would have been too many witnesses – “twice as many” witnesses – because prison guards were changing shift in that area at that time.
[24] This is a trial on the allegations and submissions of the parties. I was not asked to and do not conduct an analysis of the many other locations on the prison grounds where the assault might have taken place.
(1) The assault and related issues
[25] During the afternoon of August 30, 2017, the Plaintiff sustained a serious injury to his jaw. I accept this submission which is not contradicted. At all material times he repeatedly told prison staff he fell in the shower. However, in this action started about a year later (July 17, 2018) and it seems for the first time, he claims he was assaulted on the prison grounds somewhere away from his living unit. He claims to have no idea why he was assaulted. He testified he cannot identify his assailants. He says he never gave any reason for other inmates at BCI to assault him. He deposes there were no witnesses to the assault, and that he made his own way back to his unit or range after the assault.
(2) Absence of pre-indicators
[26] Deputy Warden Craig James of BCI [“Deputy Warden James”] gave evidence at trial by affidavit, in cross-examination and redirect. At the time of the assault, Deputy Warden James had been in CSC prison service for 19 years. I accept the evidence of Deputy Warden James who I find was both a credible and reliable witness. I come to these conclusions having listened to his evidence which was direct, complete, and succinct. It had the ring of truth. It was not weakened in cross-examination. I also give his evidence considerable weight because he was present at this prison at the time of the assault. He was then Assistant Warden Operations. He was promoted to Deputy Warden the following year, in 2018.
[27] Thus, Deputy Warden James had actual first hand knowledge, not of the assault itself – the only evidence in that respect comes from the Plaintiff – but of the BCI prison generally and particularly in terms of its operations and security surveillance among other things. Deputy Warden James also gave evidence based on his review of prison files, which were extensive, many of which were filed with the Court.
[28] I prefer the evidence of Deputy Warden to that of the Plaintiff on matters of prison security and operations where they conflict because of his personal knowledge of such matters.
[29] On the issue of reasonable foreseeability and pre-indicators of violence, Deputy Warden James deposed there were no pre-indicators of violence against the Plaintiff:
5. I am advised by Beaver Creek staff that they did not recall any pre-indication of an assault on Mr. Beauchamp. A review of casework record entries in the Offender Management System, prior to and following the assault, do not provide any expression of concern by Mr. Beauchamp to staff members.
[30] Deputy Warden James added in cross-examination that the lack of any pre-indicators of violence was not based solely on the Plaintiff not having expressed any concerns (he expressed none), but was the aggregate of the entire situation, including casework records, statement/observation reports, and daily interaction logbooks. From these Deputy Warden James concluded there’s “nothing that – as a pre-indicator for me to tell me that he was in trouble.”
[31] This evidence was not seriously contradicted by the Plaintiff who neither pleaded nor led any evidence of pre-indicators of harm towards himself. Indeed the Plaintiff testified he had no idea why he was assaulted. He says he never gave any reason for other inmates at BCI to assault him:
27 MR. PETERSON: Can you think of any reason
28 why any of the inmates that you were living with ---
1 MR. BEAUCHAMP: No.
2 MR. PETERSON: --- would have wanted to ---
3 MR. BEAUCHAMP: No.
4 MR. PETERSON: --- assault you?
5 MR. BEAUCHAMP: No, I was there going on two
6 years.
[32] That said, contrary to his sworn testimony at trial, several weeks after trial and for the first time (at paragraphs 4, 5 and 6 the counsel for the Plaintiff’s Closing Arguments) counsel argued prison staff might have drawn an “inference” the Plaintiff was involved with other inmates involved in drug activities, and that there were “racial tensions between inmates, including black inmates” and the Plaintiff.
[33] I am unable to give these suggestions credence for several reasons. This suggestion is directly contrary to the Plaintiff’s sworn testimony that he had no idea why he was assaulted. Both cannot be true. Secondly, it is contrary to his sworn testimony in cross to the effect he did not do hard drugs since 1999: “I haven’t done hard drugs or anything like that since October 17th of 1999….” Third, the Plaintiff did not raise any suggestion he was a drug user (which he in fact emphatically denied before the Court) or that he was involved in racial issues, in either his Statement of Claim or his affidavit filed as his evidence in chief. The reference to racism is unattributed and uncorroborated hearsay: I do not accept it.
[34] Moreover, Deputy Warden James testified there were no pre-indicators of violence in the Plaintiff’s “entire situation, including casework records, statement/observation reports, and daily interaction logbooks.” I accept the evidence of Deputy Warden James regarding pre-indicators, and prefer it to that of the Plaintiff. With respect, the Court declines to draw an “inference” of pre-indicators. I find this evidence too weak a reed to carry any weight.
[35] Therefore, applying the law as set out in Subbiah, supra at paras 75-76 and Adams, supra at para 79, the Plaintiff has failed to establish on a balance of probabilities that BCI had any actual or imputed knowledge of any pre-indicator of harm to the Plaintiff; BCI had neither actual knowledge the Plaintiff’s safety was compromised or that he was at risk of assault. In this respect, I find harm to the Plaintiff was not reasonably foreseeable, and to the extent pre-indicators form a basis for this action, it must be dismissed.
(3) Potential motive for assault: unpaid drug debt owed by Plaintiff
[36] According to a written Observation Report given by another inmate to prison authorities dated September 11, 2017, 11 days after the alleged assault, another inmate living in Tundra Unit was selling “heroin and feninol (sic)” and the Plaintiff “Mike got his jaw broken already because he owed money.”
[37] I also note the Plaintiff failed to provide a proper urine sample for a random prison drug test a few weeks before the assault at issue. I further note the report filed by the inmate who wrote “Mike got his jaw broken”, also states “he also has been faking his piss tests tell your guy to pay closer attention he uses someone elses [sic] piss.”
[38] Counsel for the Defendant observed in questioning Deputy Warden James that the “Mike” referred to appears to be the Plaintiff, whose jaw had been fractured less than two weeks before this note, which is trial exhibit D2. The Defendant acknowledges the statements in the Inmate Request form are hearsay. Notwithstanding, Deputy Warden James confirmed in redirect: “We do have a lot of drugs being, from our intelligence perspective, moving out of that unit.” In context, the unit referred to was Tundra Unit. Deputy Warden James testified Tundra Unit, while medium security, was “a more secure unit” and “we are constantly doing non-routine searches in that unit” for drugs. I accept the evidence of the Deputy Warden in this connection.
[39] In cross-examination, it was put to the Plaintiff that the reason for the assault was the Plaintiff owed money for drugs to somebody in Tundra Unit. While the Plaintiff denied this, it is significant that when asked, the Plaintiff claimed he had no idea why an inmate would write a form stating: “Mike got his jaw broken already because he owed money” and leave the note in the mailroom:
6 MR. PETERSON: All right. Do you recall
7 another unit in the medium security called Tundra unit?
8 MR. BEAUCHAMP: Tundra unit? Yes.
9 MR. PETERSON: All right. And did you --
10 were you aware that there were inmates in Tundra unit who
11 were selling illegal narcotics (line cuts out) inmates?
12 MR. BEAUCHAMP: No, I’m not aware of that.
13 MR. PETERSON: All right. And Mr.
14 Beauchamp, are you aware that other inmates have made the
15 allegation that you were an inmate who was purchasing
16 illegal drugs from inmates in Tundra unit?
17 MR. BEAUCHAMP: No, I’m not aware of that.
18 MR. PETERSON: All right. Has your counsel,
19 Mr. Sloan, shown you in the productions for the trial, an
20 inmate statement, a handwritten statement, saying that you
21 were owing monies for drugs, and that was the reason why
22 you were assaulted on August 30th, 2017?
23 MR. BEAUCHAMP: I’m not aware of that
24 either.
25 MR. PETERSON: All right. So, I’m putting
26 that to you that ---
27 MR. BEAUCHAMP: Okay.
28 MR. PETERSON: --- another inmate did make
1 that statement about you. Do you have any idea why
2 somebody would make that allegation about you?
3 MR. BEAUCHAMP: Not at all actually.
[Emphasis added]
[40] Deputy Warden James was asked in redirect how often he has seen an inmate injury of the severity of the Plaintiff’s, caused for no apparent reason whatsoever, over his (23 years) service with CSC. He answered, “Never.” When asked about what motivation the Plaintiff might have to lie about the reason for the assault, Deputy Warden James said the Plaintiff would stand to gain monetarily in a civil suit.
13 MR. PETERSON: All right. And can you think
14 of a reason why Mr. Beauchamp might want to lie about not
15 having had some part to play in his being assaulted?
16 MR. JAMES: Personal gain, monetary in a
17 civil suit I guess. I’d be speculating.
[41] In this connection, it is also noteworthy the Plaintiff testified he was not aware that drugs were being sold by inmates in Tundra Unit. I do not accept his evidence for several reasons.
[42] First, by the time of the assault he had spent between 9 years and eight months in federal prisons. The Plaintiff was first incarcerated in federal prison in 1993 when sentenced to 2 1/2 years for “Break & Enter with Intent, Assault, Fail to Comply x2, and Assault Causing Bodily Harm.” He returned to federal prison a second time in 2002 upon his conviction for manslaughter after a 4-year-old girl died in his care after being abused. Regarding his third prison term (his second manslaughter conviction and the one he was serving at the time of the assault), he was sentenced to 7 years (12 years before credit).
[43] I had the opportunity to observe and listen to the Plaintiff as he was cross-examined and in re-direct. He impressed me as a street-smart individual, but with the ability to speak untruths. I accept the finding of the Parole Board of Canada in its January 5, 2018 report, and the finding of the British Columbia Supreme Court in sentencing him in 2013, that he has had serious drug and alcohol issues. I have accepted the evidence of the Deputy Warden that inmates in Tundra Unit were selling drugs to other inmates. Given these facts and the lengthy time the Plaintiff had spent in prison at the time of the assault – approaching 10 years – it would be naïve and implausible to accept the Plaintiff’s claim he was not aware inmates in Tundra were selling drugs. I do not believe his evidence in this regard.
[44] In assessing motive, I must also consider the Plaintiff was not truthful about where he was assaulted. He repeatedly told prison staff including Health Care staff he fell in the shower. That was not true as the video camera surveillance record of his unit area establishes; even the Plaintiff now must concede his previous story was not true because a different story is the basis of his present claim of inadequate surveillance.
[45] As noted, he now has completely changed his story. He now claims he was assaulted elsewhere where he ‘believes’, rather too conveniently in my view, there was no video surveillance. However I find he is again untruthful and that the assault did not occur where he now claims it did, primarily because if it had, in my view and more probably than not, an assault would have been witnessed and reported due to the large number – “twice as many” - of potential witnesses in that area during prison staff shift change, as Deputy Warded testified.
[46] That said I am unable to determine the motive for the assault on a balance of probabilities. However, the Court is unable to rule out the possibility the assault was a result of a failure by the Plaintiff to pay a drug debt.
(4) Video surveillance
[47] As an alternative argument and in the absence of pre-indicators of harm, the Plaintiff argues that CSC may still be liable to the Plaintiff in negligence. This is how the Plaintiff puts it:
e) That the inherently violent character of medium security CSC institutions means that CSC is not required to anticipate every incident of violence but only to implementreasonable and adequate supervision to address and prevent violent incidents.
f) That, absent evidence of incompatibles or actual conflict with respect to the inmates involved, it must be shown that CSC security measures in place were adequate and reasonable with respect to CSC’s mandate and objectives (to ensure public, staff and inmate safety).
g) That surveillance of inmates will not fail to meet this standard if there exists adequate camera and in-person monitoring and observation, in essence, to address most potentially violent incidents and related locations.
[48] For the following reasons, I am not persuaded on a balance of probabilities either that CSC was negligent or that CSC negligently caused the assault or resulting damage to the Plaintiff in terms of video surveillance.
[49] I begin this discussion by noting that on the issue of video surveillance, Deputy Warden James testified BCI is a medium security institution with a capacity of over 500 inmates and “a couple hundred staff.”
[50] In terms of video surveillance, the Deputy Warden’s evidence was that BCI uses both fixed cameras and pan-and-tilt cameras. Fixed cameras have a fixed angle of view. With pan-and-tilt cameras, a guard in the control booth may use a toggle switch to rotate the angle of view. Deputy Warden James testified BCI security staff reviewed video footage within 24 hours and determined that an assault on the Plaintiff was not caught on camera.
[51] I have read the video review report, Tab 200 Joint Book of Documents. I note this report appears to focus on where the Plaintiff initially claimed his injury occurred, namely in his unit in his shower. The video review report does not address the “walkway” area where the Plaintiff now says he was assaulted. The walkway area was not raised by the Plaintiff when the video review was conducted (the same or the next day as the injury). The video review report focuses on the Plaintiff’s particular living unit, one of many living units on the prison grounds, and does so in my view because the Plaintiff misled prison staff when he said he fell in his shower. The video report found “Camera footage is not available to track Beauchamp’s movement upon exit of the unit”; “At 1553hrs Beauchamp is observed to enter the unit and attend E range door. He is observed to be holding his jaw at this time”; “At 1559hrs Beauchamp is observed entering the unit and his range holding his jaw, left side”; and “I would believe there to be some physical injury to Beauchamp’s mouth.”
[52] From these findings of the video report, there is no evidence the Plaintiff’s injury or assault took place in or around his living unit. I accept the video review report’s findings, which confirm the Plaintiff was not truthful when he told prison staff he fell in the shower.
[53] So where did the assault take place? The Plaintiff deposes in his affidavit he was assaulted “between kitchen and gym.” During his testimony in cross he said the assault took place on a “walkway” in between the kitchen/canteen and the back of the gym. The Plaintiff offered no corroboration as to either. Also without corroboration, he says in his affidavit “at least as far as I know” the area where he was assaulted was a “blind spot.” He failed to substantiate his belief.
[54] I am not persuaded by his evidence the assault took place on a walkway between the kitchen and the gym. I say this based on evidence of Deputy Warden James who testified the walkway where the Plaintiff claims the assault took place was an unlikely site for an assault because there would be too many witnesses.
[55] Deputy Warden’s evidence was given in a straightforward manner, candidly and without embellishment. Deputy Warden James testified – notably in cross-examination by Plaintiff’s counsel – that the Plaintiff’s claim is unlikely because of the time of day (mid afternoon) and because that area was a high traffic area at that time. He testified there would have been “twice as many” BCI prison staff in that area than usual, because at that time of day prison staff would be in the process of changing shifts.
[56] In those circumstances, Deputy Warden James, who has been with CSC for approximately 23 years and who was at the time of the assault Assistant Warden Operations, testified he would have expected somebody to come forward as a witness. However, no one did:
17 MR. JAMES: No, it actually -- I found it
18 odd the time of the day, actually. It’s the change of
19 shift. We would have twice as many staff on during that
20 period of time, which would increase our likelihood of
21 observing something. So, I actually found it very odd and
22 not an ideal time of -- that I -- in my history that I’ve
23 seen assaults occur.
[57] In my respectful view, it is more probable than not that the assault took place somewhere other than the walkway kitchen gym area as claimed by the Plaintiff. I accept the evidence of Deputy Warden James that the assault could have occurred in any number of areas throughout the prison grounds that were “off camera.” I agree if it occurred where the Plaintiff claims, it more likely than not would have been witnessed and reported. But it was not reported.
[58] I add it is also obvious from the video review report the Plaintiff was assaulted somewhere other than in or around his living unit or in his shower.
[59] The Court is unable to determine where the assault took place. This was also the conclusion of Deputy Warden James who stated in cross: “Where he was assaulted, I have no idea. It wasn’t in his living unit by virtue of the video review. It was somewhere outside of his living unit.” I accept this evidence.
[60] Not only is the Plaintiff’s evidence at trial inconsistent with his earlier reports to prison staff, it appears tailored to his mistaken belief the claimed area was a “blind spot.” This was not the case, as I discuss below. His testimony is self-serving in that if the area was not subject to video camera surveillance, as he wrongly believed, no one could contradict his story with video camera evidence.
[61] In any event, I also find that if the assault occurred where claimed by the Plaintiff, that area was not a “blind spot” as suggested by the Plaintiff. To begin with, I note the Plaintiff neither claims nor gives evidence the area he refers to is in fact a “blind spot.” Instead, he offers this assertion in a highly qualified manner: “at least as far as I know” he states. Without more, this is simply a s