Subbiah v. Canada

Subbiah v. Canada
Court (s) Database
Federal Court Decisions
Date
2013-11-27
Neutral citation
2013 FC 1194
File numbers
T-1559-09
Decision Content
Date: 20131127
Docket:
T-1559-09
Citation: 2013 FC 1194
Toronto, Ontario, November 27, 2013
PRESENT: Kevin R. Aalto, Esquire, Prothonotary
BETWEEN:
SELVA KUMAR SUBBIAH
ALSO KNOWN AS RICHARD SUBBIAH
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1] The Plaintiff, Selva Kumar Subbiah also known as Richard Subbiah, is an inmate at Kingston Penitentiary. He has been an inmate for some 20 years and will not be released until the completion of his full sentence (24 years, 9 months, 1 day) on January 29, 2017. Upon his release he is to be deported to Malaysia.
[2] Mr. Subbiah was convicted on two separate occasions for multiple counts of sexual assaults and other violent offences. His offences include those in which Mr. Subbiah would encounter women, drug them with what is colloquially known as a “date rape” drug, and then sexually assault them. He was charged and he pleaded guilty to over seventy offences – including twenty-six counts of sexual assaults and twenty-seven counts of administering a noxious substance – relating to over thirty victims. There were a substantial number of other charges which were either not proceeded with or dropped as a result of his guilty plea. The initial charges for which he was convicted arose in 1992. When the police were able to make further investigations, Mr. Subbiah was charged with an additional series of sexual assaults and those charges were dealt with in 1997. Again, Mr. Subbiah pleaded guilty to a number of those offences. The aggregate sentence that he received was in excess of 24 years. He has served most of his entire sentence to date at Kingston Penitentiary.
[3] In 2008, the National Parole Board, as it was then called, now called the Parole Board of Canada (“PBC”), was required to hold a hearing regarding parole for Mr. Subbiah. Mr. Subbiah waived his right to attend the parole hearing. Thus, Mr. Subbiah’s parole consideration proceeded by way of a “paper hearing”. In a decision dated December 9, 2008 the PBC determined that Mr. Subbiah was not a candidate for statutory parole and would have to serve the remaining part of his sentence. The decision set out Mr. Subbiah’s criminal history and many details of his sexual offences. The decision also included details from psychological reports. Those reports indicated Mr. Subbiah’s denial and minimization of his offending activities, his lack of victim empathy, and his substantial degree of indifference towards the consequences of his offending behaviour. The parole decision concluded that Mr. Subbiah was at a high risk of sexual and violent recidivism. Mr. Subbiah alleges that he was not provided with a copy of the parole decision, but that fact, whether true or not, is immaterial to the issues that arise in this case.
[4] Soon after the parole decision was issued, in February 2009, a crime reporter at the Kingston Whig-Standard, Mr. Robert Tripp, made an application to the PBC for release of the parole decision regarding Mr. Subbiah (“the Decision”), pursuant to section 144 of the Corrections and Conditional Release Act, SC 1992, c 20 [CCRA]. Subsection 144(2) allows for a “person who demonstrates an interest in a case” to request disclosure of individual parole decisions. The PBC redacted some portions of the Decision and forwarded a copy to Mr. Tripp on February 12, 2009. In turn, Mr. Tripp published the Decision on an internet site called CanCrime.com. Mr. Subbiah only learned that the Decision was published online when notified by his wife.
[5] Thereafter, on May 14, 2009, Mr. Subbiah was attacked by two inmates who managed to block open a door so that it could not be locked. These inmates, a Mr. McPhail and a Mr. Martin, stabbed Mr. Subbiah six times. Correctional Officers responded to the assault within one minute. Mr. Subbiah sustained six superficial stab wounds during the attack, along with cuts, scrapes and bruises to his head, neck and body. He was initially treated at Kingston Penitentiary, then transferred to Kingston General Hospital, but was released back to the penitentiary the same day.
[6] Mr. Subbiah now brings this action for breach of privacy and negligence against both the Crown and more specifically, the PBC and Correctional Services Canada (CSC) (collectively “the Crown”). As against the PBC, he alleges that they wrongfully released the Decision to Mr. Tripp who posted it on the internet. Mr. Subbiah claims that this was a breach of his privacy and did not accord with section 144(2)(a) of the CCRA, which provides that information in parole decisions will not be disclosed where it “could reasonably be expected… to jeopardize the safety of any person”. Mr. Subbiah alleges that the PBC’s release of the Decision led to other inmates at Kingston Penitentiary obtaining information about his criminal history, which in turn prompted the attack of May 14, 2009. He maintains that this chain of events constitutes a causal connection between the PBC’s release of the Decision and the eventual attack and injury that he suffered.
[7] As against CSC, Mr. Subbiah alleges that they were negligent by not taking steps to protect him from the planned attack at Kingston Penitentiary. In addition to the internet publication of the Decision, Mr. Subbiah alleges that the May 14, 2009 attack should have been anticipated because he was at high risk among the inmate population. Specifically, he alleges that another inmate, Mark Curry, wanted revenge against him because Mr. Subbiah had previously reported a rumoured affair between Mr. Curry and a female Correctional Officer. He also alleges that CSC had notice that the Decision was circulating among the inmate population, placing him at a heightened risk.
[8] In this simplified action, Mr. Subbiah claims damages in the amount of $15,000.00 for general damages; punitive damages of $35,000.00; and a finding that his Charter rights have been violated.
Facts
[9] During the course of the trial eight witnesses were called. Mr. Subbiah gave evidence on his own behalf as did a fellow inmate from Kingston Penitentiary, Michael Peteigney. On behalf of the Crown, the witnesses were Nikki Smith, Jan Looman, Greg Van Rossem, Tim O’Hara, Miguel (Mike) Costa, and Lisa Blasko.
Plaintiff’s Evidence
Evidence of Richard Subbiah
[10] As mentioned, Mr. Subbiah is incarcerated because of sexual offences he committed. He has served the majority of his sentence of some 24 years at Kingston Penitentiary. In that institution there were apparently various units where inmates are housed, called ranges. A number of those ranges are reserved for high profile offenders who may be subjected to abuse by other inmates. While Mr. Subbiah has been in and out of segregation ranges during the course of his time at Kingston Penitentiary, he has spent a large amount of time in the general population.
[11] During the course of his time in Kingston Penitentiary, Mr. Subbiah worked as a dome cleaner. The dome, or rotunda, is the central part of Kingston Penitentiary, and the various ranges extend like spokes of a wheel from the central dome. Mr. Subbiah worked afternoons and evenings in the dome, clearing garbage, washing the floors and stripping and cleaning the floors from time to time.
[12] On May 14, 2009, Mr. Subbiah was assaulted by two inmates, McPhail and Martin. He said he knew one of them a bit but did not know the other. Both of these inmates were housed in the Upper B range, a protected custody range for inmates who do not want to be a part of the general prison population. Mr. Subbiah said that it was not his duty to deal with the Upper B range, but a Correctional Officer asked him to take some cleaning supplies to that range. When he did, Martin, who had just entered the dome area from the Upper “B” range, blocked the door so that it remained open and the Correctional Officer in the dome, a Ms. Alexandra McCormick, could not lock it. This afforded an opportunity for Mr. McPhail and Mr. Martin to attack Mr. Subbiah. He received six superficial cuts and a number of bruises in the course of the assault. He was taken to Kingston General Hospital for review where CAT scans and other tests were performed. He did not require stitches for any of his wounds. He was released from Kingston General Hospital within a few hours and returned to the Kingston Penitentiary Health Centre for a further 24 hours. He received Tylenol 2 and 3 for pain relief and eye drops. He was told to eat soft food for a couple of days.
[13] When he returned to his cell on May 15th, 2009, Mr. Subbiah was segregated in his unit. He was locked in his cell and did not have access to the general prison population, nor they to him. He said he was terrified.
[14] Mr. Subbiah alleges a connection between the online publication of the Decision by Mr. Tripp, the reporter from the Kingston Whig-Standard, and the assault which he suffered on May 14, 2009. After Mr. Tripp requested a copy of the Decision from the PBC, the PBC redacted some personal information relating to Mr. Subbiah and sent Mr. Tripp a copy. Mr. Tripp, in turn, posted the decision on the internet on a website entitled CanCrime.com.
[15] Mr. Subbiah said that he never saw the internet site because inmates at Kingston Penitentiary do not have access to the internet. He said he was told about the internet posting by his wife, and she read some of it to him. He stated that his wife suffered repercussions at her work as a result of the Decision being posted online. His wife is not a party to this proceeding.
[16] Mr. Subbiah conceded that, unlike the internet, newspapers are accessible by inmates at Kingston Penitentiary. He was also aware that a television program about him and his crimes was accessible to inmates at Kingston Penitentiary. He conceded that an inmate’s criminal background was not necessarily a secret within Kingston Penitentiary.
[17] Mr. Subbiah did not see the internet version of the Decision denying his parole. However, after hearing about the online publication of the Decision, he said he wrote a letter to Greg Van Rossem, his parole officer, which was copied to various other individuals including Mike Costa, a Security Investigation Officer (SIO) at Kingston Penitentiary. The letter, dated March 6, 2009, expressed Mr. Subbiah’s concern that his parole information was provided to Mr. Tripp. Mr. Subbiah asked CSC to undertake an internal investigation to determine how this information was released. Nowhere in the letter does Mr. Subbiah indicate that other inmates might be in possession of a copy of his parole decision. On cross-examination Mr. Subbiah claimed that he was unaware that his Decision was circulating amongst the inmate population at the time he wrote the letter to his parole officer.
[18] Mr. Subbiah gave evidence at length about having had meetings with both Mr. Van Rossem and Mr. Costa regarding the release of the Decision. He said that he requested that CSC investigate how it came to be released. He gave evidence that both Mr. Van Rossem and Mr. Costa declared that his “privacy had been maliciously breached” and that there were “foreseeable consequences” for both Mr. Subbiah and his wife.
[19] During the cross-examination relating to both his letter and any subsequent discussions regarding the internet posting, Mr. Subbiah became evasive in his answers. Indeed, a number of his answers on cross-examination varied from the content of his affidavit. A few examples of this are as follows:
• Mr. Subbiah was asked how he delivered his letter to all of the individuals it was allegedly sent to, and he said by Canada Post. He then changed his evidence to say that with respect to Mr. Van Rossem and Mr. Costa it was sent by way of institutional mail. He said he put the letters in a mailbox in the dome that is cleared daily by the Visiting and Correspondence Department.
• He was asked about Mr. Van Rossem’s and Mr. Costa’s evidence that they never received his letter. He said he was surprised by their evidence, since they had given him the name of Ms. Karen Blanchard, an officer with the PBC, so that he might inquire about the PCB releasing his parole decision to Mr. Tripp.
• Mr. Subbiah initially claimed that he met with Mr. Costa in March 2009 to discuss his concerns over the release of the parole decision. Later, when confronted with evidence that Mr. Costa was on leave from Kingston Penitentiary in March of 2009, Mr. Subbiah acknowledged that he did not recall whether he had met with Mr. Costa after all.
[20] Mr. Subbiah was asked specifically whether he ever told anyone that he was concerned for his safety. On this issue he was extremely evasive and only answered, “I was very very concerned”. Moreover, he did not ask to be segregated from the general prison population prior to the assault. The following is an excerpt of this exchange during Mr. Subbiah’s cross-examination:
Q. Did you ever ask to be either segregated in your cell, segregated on your range in segregation or any other type of segregated type housing for yourself?
A. No, ma’am. I had concerns. I relayed my concerns, and I tried to work around any situations that may have occurred, but no. I relayed my concerns, and I do not feel that it is my place to – I wouldn't know.
I do not have other inmates’ files and know what they are thinking. I would not be able to foresee what would have happened to me, but that is why I relayed my concerns to the people in charge of my case.
[21] Mr. Subbiah’s affidavit claimed that, on March 12, 2009, other inmates made derogatory and threatening comments to him as a result of the circulation of the Decision. He also claimed that, on previous occasions when his crimes had been publicized in the media, CSC would protect his security. Therefore, he expected that CSC should have segregated him from the general prison population when details of the March 12, 2009 threats came to light.
[22] On cross-examination, Mr. Subbiah was asked if he notified CSC about the threats he received on March 12, 2009. He maintained that he told his parole officer, Mr. Van Rossem, stating, “I would definitely have had this conversation with my parole officer, absolutely”. However, he also admitted that when his crimes had been publicized in the past CSC had never removed him from the general prison population, or from his dome cleaner position. The only times he was “locked up” or segregated came when he specifically requested as much. Yet, he acknowledged that he did not request being segregated from the general population after receiving threats in March 2009, or after he received information that Mr. Curry was upset with him in April 2009.
[23] During the course of his evidence it became apparent that Mr. Subbiah was referring to a document which had not been produced in this proceeding. He said that he succeeded in obtaining an envelope of “notes”, which apparently included a copy of section 24 of the CCRA and other “miscellaneous stuff”. At times Mr. Subbiah seemed to develop a habit of fielding difficult questions with the response, “I don’t have my notes”.
[24] Mr. Subbiah claimed that there was a breach in security directly prior to the assault. He said that Correctional Officer McCormick was on duty, observing the Upper “B” range entrance, but somehow the door to that range was unlocked and propped open by one of his assailants. To him, this suggested a breach of security protocol, since barrier doors are to remain locked unless overseen by a Correctional Officer who is able to maintain static security. In his affidavit, he also stated that Officer McCormick banged on the glass of the observation bubble to encourage Mr. Martin to remain in his range, and that she was unable to engage the lock after Mr. Martin propped the range barrier door open. During the course of his cross-examination, Mr. Subbiah admitted that he did not have personal knowledge of how Officer McCormick behaved that day, or how, exactly, the door to the Upper “B” range was unlocked and propped open. In fact, he acknowledged that much of his recollection of what transpired with regards to Officer McCormick that day is his recitation of what was in her observational report, and the subsequent investigative report disclosed in this lawsuit, as opposed to any direct recollections.
[25] Following the attack, Mr. Subbiah complained that he suffered from anxiety, mental anguish and stress, and that he no longer felt safe in a group. He also said that he had developed nightmares. When asked whether he had reported this to anybody, he said he had reported it to a Mr. Eastabrook, a psychology nurse at Kingston Penitentiary. He was given medications, and he assumed he had post-traumatic stress disorder (PTSD). He testified that he saw counsellors frequently and believed that the medications he was taking were for a diagnosed psychological disorder. There is no medical evidence in this case regarding his state of mind following the assault.
[26] In another part of his examination Mr. Subbiah conceded that after returning to Kingston Penitentiary and being moved to the Lower “G” range, he sought to become the range representative. When asked why he would do so in light of his anxiety and fear of groups, he indicated that these were groups of inmates whom he knew and therefore felt comfortable with. He indicated that he never took recreation time while he was in the Lower “G” range. In another exchange, when asked about being a part of a group program for sexual disorders at the Regional Treatment Centre (RTC), he said that this group was comfortable for him because all of the other six or seven inmates who were participating had similar criminal backgrounds and were dealing with similar issues.
[27] When I asked whether or not he was aware that inmates in the institution would share information about other inmates, Mr. Subbiah suggested that there were a lot of rumours going around. On the basis of all of his evidence, I find that knowledge would be shared and exchanged among inmates as to the crimes for which they were incarcerated, especially for an inmate like Mr. Subbiah who had been in the institution for approximately 15 years at the time of the assault. I also find that Mr. Subbiah was evasive, and believe that at times he endeavoured to overstate his case. Where his evidence conflicts with evidence of other witnesses of the Crown, I prefer the evidence of the Crown witnesses.
Evidence of Michael Peteigney
[28] Michael Peteigney was a friend of Mr. Subbiah when Mr. Peteigney was incarcerated at Kingston Penitentiary. He is now an inmate at Bath Institution.
[29] While incarcerated at Kingston Penitentiary, Mr. Peteigney worked as a change room worker essentially spending his time at a sewing machine doing repairs on bedding and other inmate clothing. He worked with approximately 4 to 6 other inmates. He said that he would have the opportunity to visit all ranges of Kingston Penitentiary and says he observed a document concerning Mr. Subbiah being passed around among the inmates.
[30] Mr. Peteigney frankly stated that he had no independent recollection of any of these events as he had “fried his brain”. He said he did this by virtue of having consumed copious quantities of LSD 25 when he was young to stave off his suicidal depression. While he says the LSD helped him avoid the suicidal depression, it had a significant adverse impact on his brain and he now could not remember anything that happened more than 8 months ago. All of his recollections for the evidence he gave flow from a letter he wrote in 2010 to counsel for Mr. Subbiah. He frankly admitted that all of his current evidence is based on what was written in that letter.
[31] Mr. Peteigney has no independent recollection of the events he described in his testimony. He cannot independently recall the specific document he supposedly saw being passed between inmates, or which inmates were involved. He does not remember which range he was in when he saw the document exchanged, and he does not remember the names of those inmates he worked with at the time. He could not give evidence concerning relationships between inmates, specifically the relationship between Mr. Curry and Mr. Subbiah.
[32] The relevant events that Mr. Peteigney sought to describe took place in early 2009, prior to the attack on Mr. Subbiah. Yet the letter upon which he swore his affidavit and gave his evidence was written in February 2010, more than 9 months after the attack. He admits he has no recollection of the events giving rise to this proceeding, or any events that took place more than 8 months ago. As he stated several times during his testimony, in reference to the February 2010 letter, “I take my own word for it”, “I believe it to be true”, and “that was my recollection at that time”.
[33] Based on Mr. Peteigney’s evidence, and his own admission that his memory only extends back for 8 months, the letter he relies upon is simply not reliable. There is no evidence that the past recollection in his letter was recorded in a reliable manner. Considering he has no memory beyond 8 months, there is also reason to believe that his past recollection was not “sufficiently fresh and vivid to be probably accurate”. Therefore, his evidence in chief cannot be accepted on the basis of the “past recollection recorded” doctrine (R v Fliss, 2002 SCC 16, at para 63). In all, I did not find the evidence of Mr. Peteigney persuasive, and so I give his evidence no weight.
Crown’s Evidence
Evidence of Nikki Smith
[34] Nikki Smith is the regional manager for the Kingston region of the PBC. I found her to be an articulate witness who answered questions fairly and frankly during cross-examination. She is the regional manager of the PBC and has a background working as a Correctional Officer at CSC. She spoke at length about PBC procedures and policies regarding disclosure of information.
[35] Of particular importance is Ms. Smith’s evidence that a registered victim would receive as much information as the victim wished under both sections 142 and 144 of the CCRA. She further noted that the restriction on the release of information that might “jeopardize the safety of any person”, as contained in CCRA section 144(2)(a), extends to include the safety of an offender. Still, her view was that there was no requirement in the CCRA or in the PBC’s internal policies to inquire with CSC into the safety of releasing certain documents to the public. Ms. Smith’s evidence was that the PBC redacts information that might identify where the inmate is residing, along with personal identifiers other than the offender’s name. It appears to be the policy of the PBC that persons who seek information are provided with it, except where standard redactions are required.
Evidence of Jan Looman
[36] Dr. Jan Looman is a psychologist who was in charge of the sexual offender treatment program (SOTP, or “the program”) at the Regional Treatment Centre (RTC) in Kingston. Between October 2010 and January 2013, Mr. Subbiah was imprisoned at the RTC, and as of November 2010 he attended the program.
[37] Mr. Subbiah completed the program but remained imprisoned at the RTC until his return to Kingston Penitentiary in January 2013. After Mr. Subbiah completed the SOTP a lengthy report was prepared relating to his participation. For purposes of this decision it is not necessary to relate in detail Mr. Subbiah’s specific involvement in the SOTP, save for a few observations. First, the report notes that Mr. Subbiah was feeling depressed and frustrated because of his lack of contact with his mother. Second, the report concludes that Mr. Subbiah “has a tendency to use his intellectual abilities to support his anti-social values through the manipulation and control of others”. The Report also states, “I suspect that his manipulative behaviour will be ongoing”. Upon Mr. Subbiah’s completion of the SOTP, it was concluded that he has a well-engrained pattern of manipulating his environment for personal gain, and that those interacting with him should be aware of this pattern and not allow him to gain what he desires through manipulation.
[38] The report on Mr. Subbiah’s participation in the SOTP also notes that when he arrived at the RTC he did not appear to have any “obvious problems with depression or anxiety”. The report further notes that Mr. Subbiah’s “anxiety and depression did not present until he began participating in the SOTP, which required him to admit to, and take responsibility for, his sexual offending behaviour, including understanding the impact of his offending on his victims”. It appears Mr. Subbiah’s family, and specifically his mother, impacted him the most. He reported feeling depressed because of a lack of contact with his mother, and because he failed to disclose to her that he was in prison, having his family cover for him all of these years.
[39] Mr. Subbiah’s participation in the SOTP, and the subsequent report, led Dr. Looman to the following conclusion:
Based on the information and knowledge I have of the plaintiff, including overseeing his participation in the SOTP, and observing his behaviour during this time, it is my professional conclusion that the plaintiff does not have any ongoing psychological issues beyond those relating to his offending behaviour and concerns related to taking full accountability for those behaviours in regard to his disposition within the prison.
[40] In his evidence, Dr. Looman conceded that traumatic stress could be a reaction to an attack such as the one suffered by Mr. Subbiah. Dr. Looman also described part of the prison hierarchy. He stated that sex offenders are ordinarily the “bottom of the prison hierarchy” and that known sex offenders are targets and subject to assault. He also said that Kingston Penitentiary is a protective custody institution, so sex offenders there are less likely to be subject to such assaults.
[41] When asked about traumatic stress and depression, Dr. Looman indicated that he was not aware of any specific diagnosis relating to Mr. Subbiah and suggested that one possibility for Mr. Subbiah’s claim of depression relates to the fact that symptoms often increase the closer an inmate comes to the end of a program, perhaps to avoid return to Kingston Penitentiary. This is defined as malingering. Dr. Looman reiterated that Mr. Subbiah did not present any symptoms of depression or other traumatic stress when he arrived at the RTC. Dr. Looman also indicated that there were many other sex offenders at the RTC during Mr. Subbiah’s stay.
Evidence of Greg Van Rossem
[42] Mr. Van Rossem was Mr. Subbiah’s parole officer from 2003 through 2010. Generally speaking he carried a caseload of 25 inmates and spent his time managing their cases in accordance with their correctional plan and assisting them, if possible, to cascade down to a lower security institution. He was concerned about behaviour, programming, work habits and the like to assist inmates with their correctional plan.
[43] When asked about the treatment of sex offenders generally within the prison system, Mr. Van Rossem acknowledged that these offenders cause problems because they are picked upon, “muscled”, or threatened. He said this part of the prison code did not exist as significantly in Kingston Penitentiary, where a relatively large number of sex offenders are held, as compared to an institution such as Millhaven, where there are few sex offenders.
[44] I found Mr. Van Rossem to be articulate and knowledgeable regarding his position and the policies within Kingston Penitentiary. He gave evidence regarding the position of dome cleaner. He stated that being the dome cleaner was not necessarily the safest job within Kingston Penitentiary because all inmates, at one time or another, pass through the dome on any given day. He said that several assaults have occurred in the dome itself. This is so notwithstanding that there is a large number of security staff in the dome area.
[45] In March 2009, Mr. Subbiah advised Mr. Van Rossem that a copy of the Decision was available online. Mr. Van Rossem made inquiries to see if a CSC employee had leaked the document, and on March 16, 2009 the PBC responded to him to clarify that the Decision had been obtained by Mr. Tripp pursuant to a written request. The PBC also confirmed that CSC was not involved in releasing the Decision.
[46] Mr. Van Rossem acknowledged that a document such as the internet posting of the Decision would be a concern, as it is always a concern if a document relating to a specific inmate circulates amongst the inmate population. He said public safety is a paramount concern within Kingston Penitentiary, both for inmates and staff. He emphasized that Kingston Penitentiary is a maximum security institution and can be a very dangerous environment for all.
[47] He described the Upper “B” range where the assault on Mr. Subbiah occurred as a transitional range. It houses inmates who have had problems in the open population because they are incompatible with others, or are targets in some fashion. He said it was a range where assaults occur.
[48] Mr. Van Rossem conceded that Mr. Subbiah was a good worker. However, as much as Mr. Subbiah might have wanted to have his dome cleaner position back, Mr. Van Rossem was of the view that it was not in Mr. Subbiah’s best interest, essentially because of the vulnerability of the dome cleaner that would be in contact with the entire prison population.
Evidence of Tim O’Hara
[49] Tim O’Hara was the head of the Kingston Penitentiary Health Services. He is a registered nurse and gave evidence identifying Mr. Subbiah’s medical file. It was his view that Mr. Subbiah had no ongoing physical injuries following the assault after the stab wounds healed.
[50] In his evidence in chief, Mr. O’Hara stated that Mr. Subbiah has no major or chronic health issues. With respect to the May 14, 2009 assault, Mr. Subbiah suffered six superficial stab wounds as well as numerous superficial cuts, scrapes and bruises to the face, neck and head. After the assault Mr. Subbiah was brought to health services, but he did not lose consciousness and had no major complaints of injury or pain. While in health services, Mr. Subbiah’s blood pressure dropped and he was taken to Kingston General Hospital as a result. The implication of Mr. O’Hara’s evidence is that the assault itself did not necessitate intervention to Kingston General Hospital. Rather, a subsequent drop in blood pressure required Mr. Subbiah to be taken to the hospital.
[51] Mr. O’Hara also observed that following Mr. Subbiah’s return to Kingston Penitentiary he required minimum follow-up. However, one issue arose in that Mr. Subbiah complained that he was stressed and was having sleepless nights because he believed that he may have been exposed to HIV and Hepatitis C during or following the May 14, 2009 assault. As a result of Mr. Subbiah’s stress and sleepless nights, blood tests were taken to determine whether or not he had either of HIV or Hepatitis C. All of the test results came back negative.
[52] Mr. O’Hara observed that although Mr. Subbiah was prescribed Remeron®, an anti-depressant drug, there was no formal diagnosis that Mr. Subbiah suffered from depression. Health Services continued to provide Mr. Subbiah with Remeron® on the recommendation of a Dr. McBride, the doctor on duty at Kingston Penitentiary.
[53] Mr. O’Hara also commented on one further incident. Apparently, on August 25, 2010, Mr. Subbiah was in segregation. Following his release from segregation he indicated that he was sad and worried about retaliation, and he reported further sleep disturbances. Remeron® was again prescribed for him at an increased dosage. Mr. Subbiah made no further reports regarding worry or sadness or depression between August 25, 2010 and his transfer to the RTC in October 2010.
Evidence of Miguel Costa
[54] Mr. Costa is the former Security Intelligence Officer (SIO) at Kingston Penitentiary. He gave evidence regarding security within Kingston Penitentiary. In particular he defined “dynamic security” as information from sources including partners in the criminal justice system such as the police or the parole board, and “static security” as elements of security that do not change, such as the towers, barriers, locks, etc. He described Kingston Penitentiary as having an active “flow through” of population, but there were many inmates who were spending the entirety of their sentence there. He said that the presence of a sex offender was not necessarily a risk. He said that the risk to a sex offender might increase if it were known that the sex offender was involved with underage persons, or that the number of victims involved was high.
[55] Mr. Costa said it was inappropriate for staff to talk about inmate crimes with other inmates, but conceded that inmates could obtain information about other inmates if they so chose through privacy legislation. He said he was initially unaware that the Decision relating to Mr. Subbiah was on the internet, but once he learned about it he checked it and saw its contents.
[56] Mr. Costa stated that Mr. Subbiah’s offences were known in the general inmate population. Therefore, it was not a concern that the Decision was published online because much of the information was known or could be obtained in other ways. He did not agree with Mr. Subbiah’s counsel that posting the decision was a breach of privacy, since the PBC’s proceedings are public.
[57] Mr. Costa had no knowledge about the inmate, Mr. Curry, who was alleged to have had an affair with a Correctional Officer. He said he had no recollection whatsoever of Mr. Subbiah ever reporting to him about such an affair.
[58] Overall, it was Mr. Costa’s view that the prevailing circumstances leading up to the May 14, 2009 attack did not render Mr. Subbiah an overwhelming security risk.
Evidence of Lisa Blasko
[59] Lisa Blasko is a SIO at Kingston Penitentiary. She has been a SIO since 1998. She reiterated in her evidence that Kingston Penitentiary is sometimes called a “protective custody” institution because of the number of serious offenders housed there, including many who are convicted of sexual offences or offences against children.
[60] Her evidence was that inmates within Kingston Penitentiary have knowledge of Mr. Subbiah’s background and criminal convictions. According to Ms. Blasko, prior to the May 14, 2009 assault Mr. Subbiah never advised security intelligence that he felt at risk for any reason, or that his safety was in jeopardy within Kingston Penitentiary.
[61] Ms. Blasko’s evidence was that inmates in the Upper “B” range, where Mr. Subbiah’s two attackers were housed, are considered vulnerable and at risk in relation to all general population inmates at Kingston Penitentiary, including Mr. Subbiah.
[62] Following Mr. Subbiah’s return to Kingston Penitentiary on May 15, 2009, he was placed in segregation so that security intelligence could assess his security and the assault could be investigated. Ms. Blasko gave evidence that Mr. Subbiah pleaded with her to let him out of segregation, so he could return to his range and to his dome cleaner position. On May 18, 2009, security intelligence determined that Mr. Subbiah was not at risk within his own range, and he was returned to his cell.
[63] There was much evidence given concerning Mr. Subbiah’s job in the dome cleaner position, and how he sought to remain in that position following the assault. However, the dome cleaner position was central within Kingston Penitentiary, allowing Mr. Subbiah to have contact with all inmates, so a decision was made that it was not in his best interest to return to that position.
[64] Mr. Subbiah was not happy with being denied the position of dome cleaner and he filed a formal inmate complaint or grievance. The result of his grievance was additional confirmation that it was not in his best interest or safety to return to the dome cleaner position.
[65] One of the documents in evidence is Mr. Subbiah’s hand written grievance, dated June 19, 2009. Interestingly, the assault is discussed in the complaint but there is no suggestion that the assault was in any way connected to the release of the PBC parole decision. Mr. Subbiah’s complaint provides a number of speculative reasons for his attack by inmates from the Upper “B”, or “U/B” range. Paragraph 6 of his complaint reads as follows:
6. Reasons for this assault, as told to me, included the following:
- I was allegedly selling cleaning supplies to the U/B inmates – this is false.
- I was allegedly stealing the cleaning supplies from the U/B common room – this is false
- For allegedly muscling the U/B inmates for canteen – this is false
- As a set up “paid” for by a population inmate to teach me a lesson to stay out of other people’s business
[66] With respect to the latter point raised by Mr. Subbiah, there was a suggestion that another Kingston Penitentiary inmate, Mr. Curry, had it in for Mr. Subbiah. As mentioned, Mr. Subbiah supposedly reported to CSC about a rumoured affair that Mr. Curry was having with a female officer. However, Ms. Blasko denies that security intelligence ever had any information to suggest that Mr. Curry orchestrated the assault on Mr. Subbiah because he was angry with him. Similarly, security intelligence did not have any information to suggest that the assault on Mr. Subbiah was the result of the circulation of the Decision amongst other inmates.
[67] Ms. Blasko also gave evidence at length regarding Mr. Subbiah’s criminal background and the availability of information concerning his specific criminal activity and his modus operandi of administering stupefying drugs to female victims in order to sexually assault them. Such information included media articles, as well as a cable television program which was based upon Mr. Subbiah’s criminal conduct. Copies of the episode guide were filed as exhibits. That particular episode of the program specifically refers to Mr. Subbiah and the manner in which he drugged potential victims.
[68] I found Ms. Blasko to be an impressive witness. She was articulate, confident and knowledgeable concerning the matters she discussed. I have no qualms about accepting her evidence over any other evidence where it conflicts with hers. She spoke at length about the duties of a SIO and described for the Court how she assembles information relating to what goes on in Kingston Penitentiary. She was unequivocal in her evidence that Mr. Subbiah’s crimes were well known among inmates at Kingston Penitentiary. She conceded that there is a “flow-through” of inmates, but there was knowledge of his crimes, nonetheless. She said the fact that the PBC decision was posted on the internet would not have elevated the risk to Mr. Subbiah, since the Decision contained nothing new. His crimes were already out there.
[69] In particular, she referred to the television documentary which had been made about Mr. Subbiah’s criminal activity. She said that the program had been replayed and was available on inmates’ televisions. She specifically recalls discussing the replay of that television program with colleagues at the institution, and even heard that one of her colleagues was in an inmate cell when it was playing. She was adamant that Mr. Subbiah never expressed that the showing of the television program was a possible security risk to him. This makes sense, considering Ms. Blasko’s evidence that Mr. Subbiah’s criminal background was a well known matter of public record.
[70] With respect to the specific incident involving the assault on Mr. Subbiah, Ms. Blasko noted that Mr. Martin, one of the assailants, was also a cleaner and was on duty at the time of the assault. Ms.