Lill v. Canada

Lill v. Canada
Court (s) Database
Federal Court Decisions
Date
2022-04-21
Neutral citation
2022 FC 580
File numbers
T-2189-14
Decision Content
Date: 20220421
Docket: T-2189-14
Citation: 2022 FC 580
[ENGLISH TRANSLATION]
Ottawa, Ontario, April 21, 2022
PRESENT: Mr. Justice Pamel
BETWEEN:
CHRISTOPHER LILL
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
JUDGMENT AND REASONS
I. Overview
[1] Christopher Lill has been serving a life sentence without the possibility of parole for 25 years since 2007 as a result of a first degree murder conviction. On October 21, 2011, while incarcerated at La Macaza Institution, a federal medium security facility, a violent incident involving another inmate occurred. Three days after that incident, Mr. Lill was placed in administrative segregation, where he would remain from October 24 until November 30, 2011. On November 7, 2011, Mr. Lill’s security classification was raised to maximum security. On November 30, 2011, he was transferred to Port-Cartier Institution, a maximum security facility. Mr. Lill was placed in maximum security facilities until May 2, 2014, when he was transferred to a medium security facility as a result of his classification having been lowered from maximum to medium security in January 2014.
[2] The Correctional Service of Canada [CSC] admits that an error was committed in the investigation process conducted by the Preventive Security Department in the aftermath of the October 21, 2011, incident. Indeed, the information available did not demonstrate that a comprehensive analysis had been conducted prior to ordering Mr. Lill’s placement in segregation. In fact, there was no formally recorded information to identify Mr. Lill as the instigator of the altercation. Further, the CSC acknowledges that the flaws affecting the validity of the decision to keep Mr. Lill in administrative segregation tainted the rest of the process of reassessing the plaintiff’s security classification. The security classification was reassessed even before the investigation by the security intelligence officers had shed light on the alleged fight. The reassessment of Mr. Lill’s security classification did not follow a fair, reasonable and transparent decision-making process based on all of the relevant information.
[3] Mr. Lill is claiming damages from the defendant in the amount of $456,000 for his placement in administrative segregation for the 30-day period from October 31, 2011, to November 30, 2011, inclusively, and for the change in his security classification that caused him to be wrongly placed in maximum security for the following 884 days, from December 1, 2011, to May 2, 2014, inclusively. Because the CSC has admitted its fault with respect to Mr. Lill’s placement in administrative segregation and change in security classification, the issues in this case involve the other essential elements of liability, namely, causation and injury. The CSC argues that, regardless of the fault committed against Mr. Lill, no causal link between that fault and the alleged injuries was established and that, if such a link had been established, that link would have been completely severed, on at least two occasions, as a result of Mr. Lill’s actions.
[4] I do not agree with the CSC. At no time during the months following Mr. Lill’s transfer to Port-Cartier had that link been severed. My impression of Mr. Lill’s character and the evidence of numerous witnesses is that Mr. Lill was admittedly combative, disregarded the advice of others, and at times displayed irreverence and arrogance. However, there is no evidence to suggest that Mr. Lill’s incarceration at the maximum security facilities would have been shortened had he been more compliant. The causal link between the admitted fault and the injury caused over the entire period covered by this action is therefore intact.
[5] However, the amount claimed is exaggerated, as it should not be forgotten that Mr. Lill will be compensated following the resolution of the class actions in Gallone v Attorney General of Canada, 2020 QCCS 5107; Brazeau v Attorney General (Canada), 2019 ONSC 1888; Reddock v Canada (Attorney General), 2019 ONSC 5053; Brazeau v Canada (Attorney General), 2020 ONCA 184; Gallone v Attorney General of Canada, 2020 QCCS 3992; and Brazeau v Canada (Attorney General), 2020 ONSC 7229 [collectively Reddock class actions]. Indeed, on April 19, 2021, this Court issued a consent order declaring that Mr. Lill’s periods of administrative segregation would not be the subject of the trial. This order was issued to avoid double compensation to Mr. Lill. Despite this order, to which he consented, Mr. Lill maintained his claim. The amount claimed does not take into account the nature and content of the damage suffered by Mr. Lill according to the jurisprudence to that effect. The evidence shows that there is little difference between the conditions of confinement in a medium security institution and a maximum security institution. Furthermore, Mr. Lill has not demonstrated that he has suffered psychological harm. He did not file an expert report showing a connection between the fault and the alleged injuries. Finally, Mr. Lill is not entitled to exemplary or punitive damages because he has not shown that the CSC acted in bad faith. The fault was committed in good faith, and the subsequent actions were taken in good faith to assist Mr. Lill in his correctional journey.
II. Facts
[6] This case arose out of an alleged fight between two inmates approximately eleven years ago. As a result, Mr. Lill was placed in administrative segregation and his security classification was raised.
[7] From 2008 to 2010, Mr. Lill was serving his sentence at Donnacona Institution, a maximum security facility. While that period is not directly relevant to this action, it should be noted that Mr. Lill spent the majority of his time there in segregation, away from the general population. He was not an exemplary inmate, apparently, so when he was later to be transferred back there, Donnacona Institution refused him. We will come back to this. Following the review of his security classification, Mr. Lill was transferred to Archambault Institution, a medium security facility, before being transferred to La Macaza Institution, another medium security facility, in September 2010, where he would remain until November 30, 2011.
[8] During his detention at La Macaza, he was allegedly involved in multiple incidents of varying degrees of seriousness. He is said to have burned a Mohawk flag (allegedly in accordance with his traditions), pushed an elder and driven a golf cart towards a staff member. In addition, he was suspected of trafficking. Mr. Lill partially or fully denied responsibility for these incidents. However, since the elder in question was not called to testify to clear the air, and since several credible witnesses have confirmed Mr. Lill’s responsibility for these incidents, it is difficult to conclude that he was not responsible. There is no doubt that Mr. Lill was often his own worst enemy. The testimony of Alexandre Leblanc-Jolicoeur, Mr. Lill’s parole officer at La Macaza, about Mr. Lill’s character very much reflects my own impression of the plaintiff during his testimony. Mr. Leblanc-Jolicoeur testified that while Mr. Lill was no better or worse than most inmates, his character became more combative when penitentiary staff tried to make him follow his correctional plan. Mr. Lill became difficult to deal with, with an arrogant, sometimes belligerent attitude, demonstrating an inability to admit he was wrong, always believing he knew better than anyone else how to behave and wanting to do things his own way. In any event, Mr. Lill’s responsibility for these incidents is not the subject of this trial. It is therefore not necessary to dwell on it, except to say that Mr. Lill does not appear to have been a model inmate during his incarceration at La Macaza institution. This is also evident from much of his institutional journey that is the subject of this action.
[9] On October 24, 2011, correctional officers at La Macaza Institution were informed of an alleged physical assault by Mr. Lill on fellow inmate Douglas Foreman on October 21, 2011. Ève Melançon, who was a security intelligence officer [SIO] at the facility at the time, was assigned to find out who had committed the assault. She met with Mr. Foreman, who told her that Mr. Lill was the assailant and that he wanted to file a criminal complaint against Mr. Lill. Ms. Melançon also met with Mr. Lill and another inmate. Mr. Lill was therefore placed in administrative segregation pursuant to former paragraph 31(3)(a) of the Corrections and Conditional Release Act, SC 1992, c. 20 [Act], in order to ensure the safety of the inmates, including Mr. Foreman, during the investigation of the events of October 21, 2011. Paragraph 31(3)(a) of the Act then read as follows:
Purpose
Objet
31(1) The purpose of administrative segregation is to keep an inmate from associating with the general inmate population.
31(1) L’isolement préventif a pour but d’empêcher un détenu d’entretenir des rapports avec l’ensemble des autres détenus.
Duration
Retour parmi les autres détenus
(2) Where an inmate is in administrative segregation in a penitentiary, the Service shall endeavour to return the inmate to the general inmate population, either of that penitentiary or of another penitentiary, at the earliest appropriate time.
(2) Le détenu en isolement préventif doit être replacé le plus tôt possible parmi les autres détenus du pénitencier où il est incarcéré ou d’un autre pénitencier.
Grounds for confining inmate in administrative segregation
Motifs d’isolement préventif
(3) The institutional head may order that an inmate be confined in administrative segregation if the institutional head believes on reasonable grounds
(3) Le directeur du pénitencier peut, s’il est convaincu qu’il n’existe aucune autre solution valable, ordonner l’isolement préventif d’un détenu lorsqu’il a des motifs raisonnables de croire, selon le cas :
(a) that
(i) the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person, and
(ii) the continued presence of the inmate in the general inmate population would jeopardize the security of the penitentiary or the safety of any person,
a) que celui-ci a agi, tenté d’agir ou a l’intention d’agir d’une manière compromettant la sécurité d’une personne ou du pénitencier et que son maintien parmi les autres détenus mettrait en danger cette sécurité;
…
…
[10] Mr. Lill still denies assaulting Mr. Foreman to this day and claims that he did not learn of the allegations until October 27, 2011, a few days after he was placed in segregation following the incident. Gary Brandon, another of Mr. Lill’s fellow inmates, testified that Mr. Lill was not involved in the incident. However, it is difficult to place much probative value on Mr. Brandon’s testimony that he reported Mr. Foreman to the penitentiary authorities on two occasions and to the inmate committee. According to Mr. Brandon, Mr. Foreman fabricated the scuffle with Mr. Lill in order to be sent back to British Columbia. Since Mr. Lill was not Mr. Brandon’s friend and, by his own admission, Mr. Brandon was risking his safety by denouncing his fellow inmate, Mr. Foreman, it is difficult to understand the motivation behind this persistent denunciation. This significant inconsistency affects the overall credibility of the witness. In any event, Mr. Lill’s actual or proven involvement in this incident is of limited relevance to this action, especially since the defendant has already admitted that a fault was committed in the reassessment of Mr. Lill’s security classification following the incident.
[11] On October 31, 2011, at the segregation committee meeting on Day 5 of segregation, the committee members had already decided to recommend to the institutional head that Mr. Lill’s security classification be raised. In addition, they felt that Mr. Lill could not be held in the same facility as Mr. Foreman because Mr. Foreman wished to file an assault complaint against him. When informed of this conclusion, Mr. Lill vehemently maintained his innocence and stated that he was willing to take a polygraph test to confirm that he was telling the truth. However, his reintegration into the general population was deemed inappropriate, and with his security classification having been raised, his transfer from La Macaza to a maximum security facility seemed inevitable. After being informed that his security classification would be raised to maximum, requiring his transfer to another penitentiary, Mr. Lill implored the committee to arrange for his transfer to Donnacona rather than Port-Cartier. However, that request was refused by Donnacona because of Mr. Lill’s behaviour while incarcerated there—as noted above, he had been incarcerated for two years at Donnacona, most of that time in segregation.
[12] Mr. Lill’s security assessment was completed on October 31, 2011. It would have been possible to change the recommendation if new relevant information had surfaced. The institutional head of La Macaza, Stéphane Lalande, had the final say, and it was open to him to disagree with the committee’s decision, but that was not the case here. Mr. Lalande testified that he agreed with Ms. Melançon’s assessment that Mr. Lill had committed the assault and, on November 7, 2011, approved the recommendation submitted by his management team to raise Mr. Lill’s security classification. In the circumstances, this meant that a transfer to a maximum security facility was in order.
[13] However, there are only two maximum security institutions in Quebec, namely, Port-Cartier and Donnacona. Since Donnacona refused to accept Mr. Lill’s transfer, only Port-Cartier Institution could accommodate him in Quebec. Moreover, Mr. Lill had not applied for an inter-regional transfer, the Regional Reception Centre [RRC] was overloaded at the time and the institutional head wanted to end Mr. Lill’s segregation as quickly as possible. In these circumstances, and despite Mr. Lill’s spirited protests, a transfer to Port-Cartier Institution was approved. As with any inter-institutional transfer, a pre-transfer risk assessment was conducted. As a result of the assessment, it was concluded that Mr. Lill fit the profile of the inmate population at Port-Cartier and could be suitably accommodated.
[14] However, this was not the case.
[15] On November 30, 2011, Mr. Lill was released from administrative segregation and transferred to Port-Cartier, where he arrived on December 12, 2011, after having been previously referred to the RRC. Upon arrival at Port-Cartier Institution (and already on the bus to the facility), Mr. Lill began protesting his transfer, refused to enter the facility, and claimed that he had been unfairly transferred and that his security classification should never have been raised. He allegedly threatened to attack fellow inmates or staff members in order to remain in segregation and thus not become part of the general population of the institution. Mr. Lill wanted to avoid the protective custody designation that comes with being incarcerated in Port-Cartier and argued that he feared for his safety if he were to enter the general population—the evidence suggests that Mr. Lill was concerned about his family’s ties to the Hells Angels and feared for his life in Port-Cartier because other inmates had been involved with rival groups. However, in addition to the pre-transfer inquiry at La Macaza, the institutional head of Port-Cartier Institution, Gilles Rose, testified that he had made inquiries to ensure that Mr. Lill’s safety would not be compromised if he were to enter the general population. All of these inquiries and even consultation with the inmate committee revealed that Mr. Lill could have entered the general population without any problems and that his fears were probably unfounded. Efforts were also made to reassure Mr. Lill, but to no avail. Throughout this period, Mr. Lill did not participate in any prison programs, as he had not served enough of his sentence.
[16] At Port-Cartier Institution, located on the North Shore, far from his family in Gatineau, Mr. Lill received no family visits. His grandmother’s health and his mother’s work, among other things, made it impossible for them to make the trip, despite the financial compensation and the possibility of extended visits offered by the CSC to inmates incarcerated at the institution. Reports about Mr. Lill paint a picture of a man who often reported being anxious and nervous when among the general population. This may explain his tendency to seek segregation. Chantal Girouard, Mr. Lill’s parole officer at Port-Cartier, testified that the goal with Mr. Lill was instead to integrate him into the general population of Port-Cartier Institution, which he continued to refuse to do; between December 12, 2011, and September 27, 2012, Mr. Lill was placed in the general population for only 27 days, that is, from December 12, 2011, to January 7, 2012, inclusively. In fact, Mr. Lill was placed in voluntary segregation beginning on January 7, 2012, because he had reported being anxious and stressed out, apparently over his appeal of his conviction, which was heard in January 2012 and for which he was awaiting a decision, and he needed to be kept separate from the rest of the population to avoid [translation] “flipping out”. On January 19, 2012, Mr. Lill barricaded himself in his cell and self-harmed by cutting himself—the report suggests that Mr. Lill did this to get attention, as he had not received any news about a request he had made to Port-Cartier staff.
[17] Mr. Lill’s psychological condition was of concern, and the reports on Mr. Lill show that various approaches had been taken by Port-Cartier staff to try to help him better manage his anxiety, stress and aggression in order to integrate into the general population, including by requiring him to complete anger management training, but Mr. Lill refused to cooperate, preferring segregation to integration. Reports indicate that Mr. Lill regularly complained about a variety of issues, particularly his conditions of confinement and officer conduct, and that he was angry with the staff at La Macaza over his raised security classification and transfer to Port-Cartier. Furthermore, when staff in Port-Cartier tried to intervene with Mr. Lill, he did not seem to listen and simply continued to raise the same issues and repeat the same complaints. The reports show that Mr. Lill had difficulty making progress with his rehabilitation plan because he was entrenched in his positions and unable to question himself.
[18] Ms. Girouard testified about the difference between medium and maximum security facilities, the main difference being that the movement of inmates within the facility was more restricted and controlled in a maximum security facility. Inmates had the same access to work, school, gym, and activities for Indigenous inmates; however, inmates in maximum security facilities did not have unrestricted access to workstations and were more restricted in their movements from one station to another.
[19] In May 2012, having already been in segregation since January 7, 2012, Mr. Lill suggested that he be transferred to Donnacona in order to get out of segregation, promising to integrate into the general population there. According to Ms. Girouard, Donnacona denied the transfer application because, while Lill was serving his sentence there, he had constantly tried to manage his own sentence in segregation—Mr. Lill wanted things done his way! Furthermore, Ms. Girouard stated that she was not convinced that Mr. Lill could be transferred directly from segregation in Port-Cartier to a medium security facility; Mr. Lill had told her, upon his arrival in Port-Cartier, that he would act violently towards his fellow inmates, and he did not show her that his behaviour warranted a lowering of his security classification to medium security. She added that at the time, federal institutions were legally required to review inmates’ security classifications every two years. Therefore, Mr. Lill’s security classification would have been reviewed in 2013.
[20] The impression that emerges from the evidence is that Mr. Lill became frustrated with the staff at Port-Cartier because no one was willing to help him find a quick way back to a medium security facility. Donnacona would not accept him, so he requested a transfer to the Regional Mental Health Centre [RMHC], a psychiatric hospital located at Archambault Institution, for a mental health program. Although Port-Cartier remained his home institution, Mr. Lill could at least try again to find a way to have his security classification lowered to medium. Given Mr. Lill’s behaviour, I would not be surprised if the Port-Cartier staff were not unhappy to see him go to the RMHC.
[21] On September 27, 2012, further to his request, Mr. Lill was transferred to the RMHC. He still belonged to his home institution, Port-Cartier, as his presence at the RMHC was temporary. His integration at the RMHC was described by his psychoeducator as optimal, but this attitude quickly deteriorated. The RMHC receives inmates from all security levels for a relatively long period of time, while they heal. The placement is temporary because of the limited number of beds available at the facility, which must be freed up for other inmates to receive treatment. Upon his arrival, Mr. Lill was placed in an assessment range for two months to ensure that he could integrate into the mentalization program and the general population of the institution. Sophie Gosselin, a psychoeducator at the RMHC, testified that everyone at the RMHC remembers when Mr. Lill arrived. He came in [translation] “with great fanfare”; he was happy to be there and already knew a lot of people. But that soon changed when he realized that neither his parole officer nor the medical staff at the RMHC could help him [translation] “fix” his security classification, because the RMHC was just a hospital, and Port-Cartier remained his home institution. Mr. Lill began to lose interest in programs and complain about the program he was in, and also began to undermine Ms. Gosselin’s authority by ridiculing her in public. Mr. Lill did not attend sessions as he had agreed to do and began to disengage from the program and the work he was being given.
[22] Mr. Lill was allegedly involved in an escape plot and drug trafficking. He was also alleged to have been a negative influence on fellow inmates in his range and to have displayed an intimidating attitude towards his psychoeducator. These facts are generally denied by Mr. Lill. On December 11, 2012, the RMHC interdisciplinary team decided to deny Mr. Lill admission to the mentalization program and to discharge him from RMHC, which meant that he would have to return to his home institution in Port-Cartier. His behaviour and lack of commitment were the main reasons for that decision.
[23] Mr. Lill could not imagine returning to square one by being transferred back to Port-Cartier Institution. On January 24, 2013, Mr. Lill was placed in administrative segregation following his involvement in an escape plot. That segregation ended on February 18, 2013; however, as a result of his unstable condition, he was transferred from Range 2B to the intensive care unit in Range 1C. Mr. Lill had demonstrated an attitude consistent with expected standards, but as a result of a suicide attempt, he was placed back in segregation from March 28, 2013, until his departure to Port-Cartier on May 27, 2013. On March 25, 2013, Mr. Lill attempted suicide. His feelings of despair included the fact that he was to be returned to Port-Cartier, that he had not been selected for the mentalization program, and that the Supreme Court of Canada had refused to hear the appeal of his conviction. On April 3, 2013, the decision was made to delay Mr. Lill’s transfer to Port-Cartier until his suicide risk level had stabilized. Efforts were underway to see that Mr. Lill was transferred to Atlantic Institution in New Brunswick, another maximum security facility where, at the very least, he would be willing to go.
[24] Karim Fakhour, the correctional manager at Archambault Institution, with which the RMHC is affiliated, testified that there is no real distinction at the RMHC in the treatment of inmates with different security classifications; inmates with minimum, medium and maximum security classifications all have access to the same services and recreation, with the exception of Range 1C, which houses inmates while they are being assessed upon arrival at the RMHC, and where movement is more restricted.
[25] On May 27, 2013, likely in response to his distress at being returned to Port-Cartier Institution, Mr. Lill was eventually transferred to Atlantic Institution. He was able to work for the first six or seven months after his arrival. Being outside of Quebec, he could not follow the Quebec curriculum, although he could in principle have followed the New Brunswick curriculum.
[26] In addition, a prison program referred to him by the RMHC was not offered in that institution due to a lack of staff; however, the fact that it was impossible for him to take part in that program was not held against Mr. Lill. Furthermore, his continued desire to participate in programs probably even helped him in his prison journey. Finally, Mr. Lill did not receive visits from his family during his incarceration at Atlantic Institution, likely as a result of the distance. However, he did receive a few visits from his spouse, which apparently helped him emotionally.
[27] Although he remained segregated from the general population of Atlantic Institution of his own volition, Mr. Lill’s behaviour and attitude during his incarceration was reportedly exemplary. As a result, his security classification was downgraded to the so-called medium security category shortly after the prescribed two-year period for reassessment, in January 2014. His classification was supposed to have been reassessed in November 2013, but due to the workload of the parole officer assigned to Mr. Lill at the time, Nathalie Waterbury, the reassessment was not conducted until after the vacation break. Mr. Lill was aware of the situation and was understanding. The officer’s supervisor had also signed off on it.
[28] Mr. Lill’s transfer to a medium security institution took a few months, as there was no space at the receiving institution on the day initially scheduled for the transfer. The next transfer was scheduled for May 2, 2014. Mr. Lill had not requested an interim placement at another medium security facility in the meantime. Therefore, he had to remain at Atlantic Institution until then. This type of wait is common, and offenders who have been reassessed often remain at Atlantic Institution for several months while awaiting their inter-regional transfer.
III. Procedural history
[29] On October 24, 2014, Mr. Lill commenced this action in civil liability against the defendant. In addition to allegations as to the reassessment of his security classification, Mr. Lill alleged, among other things, that the CSC was at fault in placing and maintaining him in administrative segregation at La Macaza Institution and that he had been subjected to extreme conditions of confinement at Port-Cartier Institution and the RMHC. Mr. Lill was said to be living with the aftereffects of his time in segregation at those three institutions.
[30] A number of procedural hurdles delayed the hearing on the merits. First, the parties agreed to file a motion to stay the proceeding, pending the outcome of two applications for judicial review (T-204-15 and T-2563-14). On October 19, 2016, Justice Martineau delivered his decision on these applications, and Mr. Lill was required to amend his claim accordingly on November 4, 2016. Following numerous pre-trial conferences, an initial trial date was set for October 21, 2019. As a result of an application by Mr. Lill’s counsel for a postponement for medical reasons, the proceeding was adjourned and scheduled for April 2020. Because of the pandemic, the proceeding was adjourned again and rescheduled for May 2021.
[31] On April 19, 2021, pursuant to a motion by the defendant that was initially opposed by Mr. Lill, I issued an order, by consent of counsel, to remove the periods of segregation from the scope of the trial, in light of the very real possibility of double compensation resulting from the Reddock class actions and the present judgment. These class actions, although each has its own particularities, will generally compensate inmates who have spent 15 days or more in administrative segregation. It appears (and this is the reason behind the April 19, 2021 order) that Mr. Lill has not opted out of at least one of these class actions and does not intend to do so, since, in his view, these are two separate claims. In any event, the time to opt out of these actions has expired, such that it is very likely that Mr. Lill will be compensated by these actions, if this has not already been done.
[32] The April 19, 2021 order was complied with, in that the length of the trial was reduced by one third (due to the many witnesses who were no longer compelled to testify about the periods of segregation applicable to Mr. Lill), and counsel addressed the issue of segregation only peripherally at trial. However, the amount of damages being claimed by Mr. Lill remained unchanged. The nine-day trial took place before me from May 12, 2021, to May 27, 2021; a total of 20 witnesses testified before me.
IV. Issue
[33] In Quebec civil law, in order to obtain damages, a person must show fault, injury and a causal link between the fault and the injury (article 1457 of the Civil Code of Québec, CQLR c CCQ-1991 [CCQ]. Since the CSC has admitted that it did indeed commit a fault, this judgment deals only with the other essential elements of liability, namely the causal link and the injury.
[34] The issues raised by the parties are therefore as follows:
Is there a causal link between the fault and the alleged injury?
B. Did Mr. Lill suffer any injury following the increase in his security classification or following his transfers to maximum security institutions and placement in the general population in those institutions, or as a result of inaccuracies in the information in his prison record in relation to these two elements?
Is Mr. Lill entitled to punitive damages?
Did Mr. Lill contribute, through his acts and omissions, to the injury he alleges he suffered?
[35] The last two issues are addressed in the second issue in this case, the issue of injury.
V. Analysis
A. Is there a causal link between the fault and the alleged injury?
[36] Before turning to the merits of the case, it is appropriate to take a brief look at the principles applicable to causation. Only an injury that is a logical, direct and immediate consequence of the fault may be compensated (article 1607 CCQ; Infineon Technologies AG v Option consommateurs, 2013 SCC 59 at para 140). Several theories have been developed in Quebec civil law to assess causation, but two stand out: the theory of reasonable foreseeability of consequences and, most notably, the theory of adequate causation (Imperial Tobacco Canada ltée c Conseil québécois sur le tabac et la santé, 2019 QCCA 358 at para 666 [Imperial Tobacco]; Hogue c Procureur général du Québec, 2020 QCCA 1081 at para 43 [Hogue]).
[37] The theory of adequate causation involves examining the various sine qua non conditions of the injury in order to identify which condition or conditions were the true causes of the harm (Hogue at para 49). It can be applied in conjunction with the reasonable foreseeability of consequences theory, which requires a causal relationship between the fault and the injury where it was foreseeable that the fault would result in that injury (Imperial Tobacco at paras 665–66). The requirement that the damage be a direct and immediate consequence of the fault precludes compensation for vicarious injury, also known as cascading injury. Thus, damage that is caused by a previous injury and that is not an immediate consequence of the fault cannot be compensated (Hogue at para 45).
[38] The causal link may also be wholly or partially interrupted by intervening events between the fault and the injury. Where (1) the causal link between the original fault and the injury is completely severed and (2) a causal link exists between the intervening event and the injury, the debtor is relieved of liability, following the principle of novus actus interveniens (Solomon v Matte-Thompson, 2019 SCC 14 at para 91 [Solomon]).
[39] Where the causal link is not completely severed, the fault is referred to as a contributory fault resulting in an apportionment of liability (article 1478 paragraphs 1 and 2 CCQ; Salomon at para 91). A debtor is also not liable for any aggravation of the injury that the victim could have avoided (article 1479 CCQ).
[40] The CSC argued that, during Mr. Lill’s incarceration in Port-Cartier, or at least at the RMHC, Mr. Lill’s conduct caused a break in the causal link. In the alternative, the defendant asserted that Mr. Lill’s conduct contributed to the injury, which warrants shared liability.
(1) Severing of causal link as a result of Mr. Lill’s conduct at Port-Cartier Institution
[41] The CSC argued that there was a complete breakdown in causation when Mr. Lill, while incarcerated at Port-Cartier Institution, unreasonably refused to enter the general population and chose to spend the remainder of his incarceration in administrative segregation. The defendant pointed out that Mr. Lill had no reason not to be among the general population at that institution, as there was no threat to his life or safety. According to the CSC, from the moment Mr. Lill decided not to integrate into the general population at the Port-Cartier Institution no matter what—even threatening staff members—Mr. Lill became the architect of his own misfortune. He himself delayed his correctional journey, slowed down his schooling and extended the time he was classified as maximum security.
[42] I agree with the CSC that some of the injuries can be tempered by the fact that Mr. Lill himself contributed to his situation. However, I cannot go as far as the defendant and conclude that there was a complete severing of the causal link as a result of Mr. Lill’s conduct at Port-Cartier Institution. The evidence suggests that the security classification should be reassessed every two years or as soon as circumstances warrant. Following this two-year rule, the re-evaluation of Mr. Lill’s security classification was scheduled for late fall 2013. It was indeed around this time that Mr. Lill’s security classification was reassessed and lowered to a medium security classification. It would have been very difficult, if not impossible, for Mr. Lill to have had his classification reassessed before that time. Instead, it seems to me that it was Mr. Lill’s actions and stubbornness that allowed him to be transferred to the RMHC and then, instead of returning to Port-Cartier, to be transferred to Atlantic Institution, where his behaviour warranted a lowering of his security classification, all in the approximate time that it would have taken him to have had his security classification reviewed if he had been on good behaviour in Port-Cartier. Throughout his time in Port-Cartier, Mr. Lill insisted that he was denied justice; he constantly complained that his security classification had been improperly raised to maximum, that he should never have been transferred to Port-Cartier, that the conditions in segregation in Port-Cartier were abominable, and that his situation was intolerable. His incessant complaints were repeated each time prison staff met with Mr. Lill, who still would not listen to suggestions that he be integrated into the general population of Port-Cartier. Again, this is consistent with the character of the man I witnessed in his testimony—stubborn, rigid in his refusal to adapt, and unapologetic for his behaviour. It was this behaviour that prevented him from integrating into the general population of Port-Cartier and kept him isolated, yet whether this behaviour was orchestrated or not, Mr. Lill was able to force his way into the community. Mr. Lill was able to force the hand of Port-Cartier and RMHC staff to transfer him, so that he got somewhere—Atlantic Institution—where he was able to meet with someone—Ms. Waterbury—who helped him develop a plan that worked for him, and that brought his security classification down to medium, finally correcting, in Mr. Lill’s eyes, the injury that had been done to him at La Macaza when his security classification had been raised to maximum.
[43] On cross-examination, Ms. Girouard, Mr. Lill’s parole officer at Port-Cartier Institution, testified that if she had been required to reassess Mr. Lill’s classification, she would have given him a so-called maximum security classification, as she had to take into account the incidents that had occurred in the year prior to the reassessment of the classification at both La Macaza and Port-Cartier institutions. There was no reason to doubt the assessment at La Macaza Institution or the accuracy of the incidents in Mr. Lill’s record. She assumed that the information in Mr. Lill’s record was true. Moreover, because Mr. Lill was not on his best behaviour at Port-Cartier Institution, having threatened to attack other inmates or staff in order to remain in segregation, there was no reason for Ms. Girouard to believe that she should have reassessed Mr. Lill’s security classification.
[44] The CSC views Ms. Girouard’s testimony as evidence that the inmate’s behaviour contributed to the length of his placement in a maximum security institution. However, as noted above, this argument does not take into account the fact that Mr. Lill’s security classification would not be reassessed until 2013. Indeed, according to Ms. Gosselin herself, she could only have reassessed Mr. Lill’s security classification and lowered it to medium security before the two-year period expired if his conduct had been [translation] “beyond reproach”.
[45] In these circumstances, Mr. Lill’s detention for just over two years in a maximum security facility was most certainly a foreseeable harm following the reassessment of Mr. Lill’s security classification in 2011. It was foreseeable that Mr. Lill would not conduct himself in a manner beyond reproach. The real cause of the period of detention of just over two years in a maximum security institution is the fault of CSC. It was not due to Mr. Lill’s behaviour. Mr. Lill engaged in conduct that resulted in his being classified as medium security in 2014, which was when he was scheduled for reassessment. The causal link is therefore intact and there is no apportionment of liability for the injury resulting from Mr. Lill’s transfer to Port-Cartier Institution following the reassessment of his security classification.
(2) Break in causation due to Mr. Lill’s behaviour at the RHMC
[46] The defendant makes essentially the same arguments for Mr. Lill’s transfer to the RHMC, namely that his conduct at that facility severed the causal link between the misconduct and the alleged injuries.
[47] The same logic applies here. Without revisiting all of the incidents in which Mr. Lill was allegedly involved at the RHMC, it should be noted that Mr. Lill was described by Mr. Fakhour, the correctional officer at the RHMC, as an average inmate who had his ups and downs. The fact that Mr. Lill did not behave in a manner that would have warranted a lowering of his security classification at the RHMC d