Carr v. Canada

Carr v. Canada
Court (s) Database
Federal Court Decisions
Date
2009-06-02
Neutral citation
2009 FC 576
File numbers
T-62-06
Decision Content
Federal Court
Cour fédérale
Date: 20090602
Docket: T-62-06
Citation: 2009 FC 576
Toronto, Ontario, June 2, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
BARRY CARR
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application brought by Her Majesty the Queen (Crown), pursuant to subsection 51(1) of the Federal Courts Rules, SOR/98-106 (Rules), appealing Prothonotary Milczynski’s decision dated December 29, 2009 (Decision) which allowed the Plaintiff’s simplified action for a claim that the Correctional Service of Canada (CSC) breached its duty of care and was negligent towards the Plaintiff, who was an inmate at Millhaven Institution (Millhaven), a maximum security federal penitentiary.
BACKGROUND
[2] In the simplified action before Prothonotary Milczynski, the Plaintiff sought damages from the Crown in respect of injuries he allegedly sustained from an assault on June 23, 2005 while he was an inmate at Millhaven.
[3] The Plaintiff alleged that he had been assaulted by an unidentified black inmate in the alcove between the gym and the door leading to the yard.
[4] The Plaintiff stated that, on the evening of the incident, he was in the telephone area waiting to use the phone. The assailant jumped the queue in an attempt to use the phone. The Plaintiff and the assailant “bumped shoulders” and there was a verbal exchange during which the assailant referred to the Plaintiff as a “pussy clot” or “blood clot.” The Plaintiff said that he did not consider the confrontation to be serious at the time. The Plaintiff later testified that the other inmate told him that he “didn’t want no problems” and that “everything was good.” There were no further interactions between the two inmates in the telephone area.
[5] The Plaintiff did not advise CSC of the verbal altercation and/or that he feared for his safety from this unidentified black inmate. The Plaintiff entered the gym after his telephone call was completed to advise the next inmate that the phone was free. When he went to exit the gym, he was assaulted.
[6] Two Correctional Officers, Dustin Marshall and Sanford Hatch, responded to the assault and issued cease and desist orders. Officer Marshall was assigned to the recreation gallery, which is located over the area to the entrance to the gym and which oversees activities in the card room, gym, washroom area and the yard. At approximately 21:20 on June 23, 2005, Officer Marshall heard the fight break out. He opened the window from recreation and observed an unidentified black inmate over a white inmate whom he was able to identify as the Plaintiff. He gave the inmates a direct order to stop. Upon seeing Officer Marshall, the unidentified black inmate ran into the gym area while the Plaintiff lay on the floor. Officer Marshall then gave the Plaintiff a direct order to proceed to the S Control barrier. He was then escorted to Health Care.
[7] The other officer, acting Correctional Supervisor Hatch, was in Health Care, which is adjacent to the recreation area. He immediately responded to the altercation and issued an order to the inmates to desist. The Plaintiff was sent to Health Care immediately after the assault and received medical attention for minor abrasions and required two stitches on his left buttock.
[8] The inmates in the recreation area were frisk searched and the institution was locked down pending a search for weapons. The gym was searched but no weapons were found.
[9] There is a videotape from the recreation area for June 23, 2005. It does not show the actual assault, but it does show the movements of the Plaintiff and the unidentified inmate who assaulted him in the gym before the incident and directly after the incident. The timeline of the videotape indicates that it took 38 seconds from the time the Plaintiff exited the gym and was “jumped” until the assailant re-entered the gym. Based on the videotape timeline, it is assumed that the altercation lasted less than 38 seconds.
[10] The Plaintiff received one puncture wound to his left buttock. He claims that he suffered severe pain from the physical wounds. He also says that he suffered from Post Traumatic Stress Disorder as a result of the assault that occurred on June 23, 2005.
[11] The Plaintiff alleges that CSC was negligent. Specifically, he alleges that CSC: failed to monitor the actions and movements of the inmates; failed to see or recognize the pre-indicators that an assault would take place (including a “verbal argument” between the Plaintiff and the unidentified inmate who assaulted him); and failed to take swift and immediate action to end or minimize the assault.
DECISION UNDER REVIEW
[12] The trial took place on January 29, 2008 and lasted for one day. The Plaintiff filed one affidavit in his own name and three medical reports. He did not provide affidavits from his three expert witnesses: Dr. Cheston, Dr. Epelbaum and Dr. Cassells.
[13] The Crown filed two affidavits. The first from Dustin Marshall and the second from Sherri Crisp, the Security Intelligence Officer at Millhaven who investigated the altercation. Sherri Crisp also prepared the incident report.
[14] Prothonotary Milczynski found that CSC breached its duty of care when it failed to take reasonable steps, in light of pre-indicators of violence, in both its static and dynamic security to prevent the assault on the Plaintiff. The Plaintiff was awarded $12,000 for pain and suffering and for damages as he continues to deal with symptoms of PTSD.
[15] Prothonotary Milczynski also found that Officer Bill Jugloff, the Correctional Officer in S Control Module, would likely have noticed the verbal exchange between the Plaintiff and the assailant. It was concluded that there was evidence of a pre-indicator of violence. This was sufficient to find that there was a breach of the duty of care. Mr. Jugloff did not testify.
ISSUES
[16] The Crown submits the following issues on this appeal:
1) What is the standard of review applicable to the Prothonotary’s Decision?
2) Did Prothonotary Milczynski err in law by:
i. Failing to apply the correct standard of care of prison officials in her determination of whether or not there was a breach of the duty of care?
ii. Drawing an adverse inference against the Defendant for failing to call Officer Jugloff as a witness in defence of the action?
iii. Finding there was a statutory obligation to establish and adhere to a policy or procedure for telephone use within the penitentiary?
3) Did Prothonotary Milczynski err in fact and law by:
i. Failing to apply the correct standard of care to the evidence before her?
ii. Inferring, in the absence of evidence to support such an inference, that Officer Bill Jugloff had the requisite knowledge of the pre-indicator of violence to find that there was a breach of the duty of care?
iii. Misapprehending and disregarding the evidence before her?
iv. Finding that the Plaintiff had discharged his burden of proving that the assault was reasonably foreseeable?
v. Finding that the Plaintiff had discharged his burden of proving his damages?
[17] The following provisions of the Federal Courts Rules are applicable in these proceedings:
Appeals of Prothonotaries' Orders
Appeal
51. (1) An order of a prothonotary may be appealed by a motion to a judge of the Federal Court.
Service of appeal
(2) Notice of the motion shall be served and filed within 10 days after the day on which the order under appeal was made and at least four days before the day fixed for the hearing of the motion.
Appel des ordonnances du protonotaire
Appel
51. (1) L’ordonnance du protonotaire peut être portée en appel par voie de requête présentée à un juge de la Cour fédérale.
Signification de l’appel
(2) L’avis de la requête est signifié et déposé dans les 10 jours suivant la date de l’ordonnance frappée d’appel et au moins quatre jours avant la date prévue pour l’audition de la requête.
[18] The following provisions of the Corrections and Conditional Release Act, 1992, c. 20 (Act) are applicable in these proceedings:
4. The principles that shall guide the Service in achieving the purpose referred to in section 3 are
…
(d) that the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders;
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.
4. Le Service est guidé, dans l’exécution de ce mandat, par les principes qui suivent :
…
d) les mesures nécessaires à la protection du public, des agents et des délinquants doivent être le moins restrictives possible;
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.
STANDARD OF REVIEW
[19] The Crown submits that the Decision of a Prothonotary to allow or dismiss a simplified action at trial is not a discretionary decision: R v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425, reaffirmed in Z.I. Pompey Industrie v. ECU-Line N.V., [2003] 1 S.C.R. 450. It is a decision that settles the substantive merits of the action and is subject to the standard of review set out by the Supreme Court in Housen v. Nikolaisen, [2002] 2 S.C.R. 235 (Housen); Beattie v. Canada, [2005] F.C.J. No. 904 at paragraphs 37-40; Giroux v. Canada, [2001] F.C.J. No. 803 at paragraphs 21-37, aff’d [2002] F.C.J. No. 1269 and Grenier v. Canada (Attorney General), [2004] F.C.J. No. 1730 (F.C.) at paragraphs 11-17.
[20] The Crown says that a Prothonotary’s decision is subject to the standard of correctness on questions of law, although factual findings will only be disturbed if a palpable and overriding error is found: Housen at paragraphs 8 and 10. Where the legal aspect can not be extricated from a question of mixed law and fact, the court will need to find a palpable and overriding error in order to overturn that finding: Housen at paragraph 36.
[21] The Plaintiff submits that there is no need to argue the standard of review, as the Plaintiff accepts as correct the Crown’s statement of law on the Supreme Court case of Housen.
ARGUMENTS
The Crown
The Prothonotary Erred in Law by Failing to Apply the Correct Duty of Care of Prison Officials
[22] The Crown submits that the jurisprudence has consistently held that in order to impose liability on the Crown, a plaintiff must establish that prison officials, acting in their regular capacity, did or failed to do something that was unreasonable, creating a foreseeable risk of harm to the plaintiff-inmate: Timm v. Canada, [1965] Ex. C.R. 174 (Timm) at paragraphs 17-18; MacLean v. The Queen [1972] S.C.J. No. 69 (MacLean); Abbott v. Canada, [1993] F.C.J. No. 673 (F.C.T.D.) (Abbott); Hodgin v. Canada, [1999] N.B.J. No. 416 (N.B.C.A.) at paragraphs 15-16 (Hodgin); Coumont v. Canada, [1994] F.C.J. No. 655 (F.C.T.D.) (Coumont); Eng v. Canada, [1997] F.C.J. No. 380 (F.C.T.D.) (Eng); Iwanicki v. Ontario, [2000] O.J. No. 955 (Ont. S.C.J.) (Iwanicki); Russell v. Canada, [2000] B.C.J. No. 848 (B.C.S.C.) (Russell); Corner v. Canada, [2002] O.J. No. 4887 (Ont. S.C.J.) (Corner); Miclash v. Canada 2003 FCT 113 at paragraphs 46-47 (Miclash) and Bastarache v. Her Majesty the Queen 2003 FC 1463 at paragraph 49 (Bastarache).
[23] The Crown notes that the test was first established in Timm. The Supreme Court in MacLean adopted the reasoning in the Timm decision and established the principle of the duty of care owed by prison officials to inmates under their care.
[24] In Hodgin, an inmate received very serious injuries from other inmates when he was doused in gasoline and set on fire. The Court concluded that prison officials were not negligent for what the Court concluded was an unforeseeable act of violence. The court focused on the lack of prior indicators of gasoline being transported and also the fact that there was no information that the plaintiff was in danger of being attacked by other inmates. In Hodgin, the plaintiff himself was unaware of any risk or danger and was surprised by the attack. The judge concluded that there was no breach of the duty of care for failure to prevent a “quick, planned and violent” attack: Hodgin at paragraphs 15-18.
[25] The Crown also relies upon Coumont and Corner where the plaintiff was stabbed by a fellow inmate. In Coumont the court held that at no time did the plaintiff identify to correctional officials any potential problems with regard to another inmate. The CSC staff had no information about a possible incompatibility. The court held that there was a duty of care owed by CSC that included an obligation to take reasonable steps to protect an inmate from fellow inmates. However, the duty on CSC was not breached in Coumont because CSC neither knew, nor ought to have known, that placement of the plaintiff in that particular institution could lead to a stabbing.
[26] In Corner, the plaintiff was stabbed while an inmate at Millhaven. He claimed that the prison authorities did not take reasonable steps to prevent inmates from being in possession of dangerous weapons. Prior to the attack, the plaintiff had no difficulties with either of the two inmates who stabbed him. The assault took place within two or three minutes and the plaintiff received approximately 30 to 40 puncture wounds. The court dismissed the action and found that the response to the attack was appropriate and that the attack was a random act of violence from which liability on the part of the prison officials could not flow. The court noted that no procedures or security measures are infallible.
[27] The court in Miclash decided that prison officials cannot be guarantors of the safety of inmates. Within an environment that has an inherent potential for violence, they cannot be expected to protect against unpredictable dangers. In the Miclash case, the plaintiff was labelled a “rat” for reporting a theft. The court found specific pre-indicators that indicated that the act of violence was foreseeable and that proper steps were not taken to prevent the violence.
[28] In Bastrache, the Federal Court reaffirmed the appropriate test to establish liability of prison officials as established by Timm. The court said it must be established that a prison official, acting in the course of his employment, did [or failed to do] that which a reasonable person in that position would not have done [or would have done] thereby creating a foreseeable risk of harm to the inmate resulting in liability. The court stated that corrections officers must take reasonable care with respect to reasonable risks of which they ought to be aware. Perfection or infallibility is not required. Reasonable and adequate measures in the circumstances will suffice.
Evidence Before the Prothonotary
[29] The Crown submits that the following evidence was before the Prothonotary with respect to the incident in the present case:
1) There was no violent altercation or physical contact that could be construed as a pre-indicator of the attack. Only words were exchanged and the two inmates merely brushed shoulders;
2) The Plaintiff and the assailant seemed to have resolved their differences after they had exchanged words in the telephone area. After the incident, the Plaintiff testified that the other inmate told him that he “didn’t want no problems” and that “everything was good.” There was no further interaction between the two inmates in the telephone area;
3) The Plaintiff did not advise CSC that he feared for his safety as a result of the earlier verbal altercation. He did not consider the confrontation to be serious at the time and he neither feared nor foresaw anything happening between himself and the other inmate after they exchanged words;
4) The assault was quick and unforeseeable;
5) Corrections officers responded immediately when the assault occurred and issued two cease and desist orders that resulted in the assailant stopping and running away;
6) The assault lasted less than 38 seconds;
7) The Plaintiff did not advise CSC of any incompatibility with the assailant or that he feared for his safety;
8) There was no evidence that any CSC employee or, specifically, Officer Jugloff witnessed or was aware of the verbal exchange between the Plaintiff and the assailant. The evidence was that the prison was loud, the inmates in the telephone area could also be loud, and that the Officer in S Control could not necessarily hear an altercation in the phone area if the prison was loud.
The Prothonotary’s Decision
[30] The Crown submits that the standard of care that the Prothonotary applied was not in line with the jurisprudence on the issue of the duty of care of prison officials. The proper question to be considered by the court was whether CSC knew or ought to have known that the Plaintiff might have a problem with an incompatible inmate and, if CSC had that knowledge, did CSC take the appropriate steps to protect him from a reasonably foreseeable risk of injury. The Crown argues that Prothonotary Milczynski’s Decision imposes a higher standard of care than that established by the jurisprudence since she saw a requirement of constant monitoring of the inmates and the requirement for surveillance cameras in the telephone area.
Monitoring of Areas Where Inmates Move Freely
[31] The Crown submits that the jurisprudence on the duty of care of prison officials does not require infallibility on the part of prison officials, and the lack of constant monitoring of inmates does not constitute a breach of the duty of care.
[32] The Crown cites Russell, which held that prison officials were not expected to constantly monitor inmates. The court held that an institution cannot be expected to have full-time supervision of all inmates at all times. The court stated that a delicate balance is required to give as much freedom as possible to inmates consistent with the safety of the inmates and staff. If there were a high degree of control, it would not be possible to run prison programs and, in the context of recreational facilities, the prison uses control procedures comparable to those in community recreation facilities. The court stated in Russell that this balance was consistent with one of the guiding principles of the CSC, as set out in section 4(d) of the Act, which is to use the least restrictive measures consistent with the protection of the public, staff members and offenders.
[33] The Crown also cites Miclash for the proposition that prison officials cannot be guarantors of the safety of inmates within an environment that has an inherent potential for violence, and cannot be expected to protect against unpredictable dangers. The court in Corner noted that no procedures or security measures are infallible. In Bastrache, the court stated that perfection or infallibility is not required. Reasonable and adequate measures in the circumstances will suffice.
Surveillance Cameras
[34] The Crown submits that both this Court and the Ontario courts have held that a lack of surveillance cameras does not constitute a breach of the duty of care: Iwanicki; Eng; Hamilton v. Canada (Solicitor General), [2001] O.J. No. 3262 (Ont. S.C.J) at paragraph 14 and Coumont.
[35] The Crown points out that the jurisprudence has consistently held that prison officials must take reasonable care with respect to reasonable risks of which they ought to be aware. The jurisprudence is clear that perfection or infallibility is not required, and reasonable and adequate measures in the circumstances will suffice. A lack of surveillance cameras does not constitute a breach of the duty of care.
The Prothonotary Erred in Finding that the Plaintiff Had Discharged his Burden of Proving that the Assault Was Reasonably Foreseeable
[36] The Crown submits that to find a defendant liable in tort for negligence it must be established that he or she owed the plaintiff a duty of care. To establish a duty of care, the plaintiff must prove that the harm that occurred was a reasonably foreseeable consequence of the defendant’s act: Cooper v. Hobart, [2001] S.C.J. No. 76 at paragraph 30.
[37] In law, “foreseeable” does not mean “imaginable.” The legal concept of foreseeability incorporates the idea that the event is not only imaginable, but that there is some reasonable prospect or expectation that it will arise: Fullowka v. Royal Oak Ventures Inc., [2008] N.W.T.J. No. 27 (N.W.T.C.A.).
[38] The Crown argues that an important consideration in the foreseeability of risk is the likelihood of the occurrence of the event giving rise to the risk: Levasseur v. Canada, [2004] F.C.J. No. 1197 at paragraph 71.
[39] The Crown submits that the Prothonotary erred in finding that the Plaintiff had discharged his burden of proving that the assault was reasonably foreseeable. The Crown notes that even the Prothonotary found that “it was not unreasonable for Mr. Carr to assume that the matter would not escalate further” and that the Plaintiff did not consider the confrontation to be serious. The Prothonotary also stated that the evidence before her was that the Plaintiff “agreed that there are lots of verbal altercations that don’t lead to a physically violent event, and that he had no expectation that this one would be any different.”
[40] Based on the evidence, the Crown submits that there were no grounds on which the Prothonotary could conclude that the attack on the Plaintiff was foreseeable. The Plaintiff himself could not foresee that his interaction with the other inmate would lead to an attack; a conclusion that the Prothonotary noted was not “unreasonable.” Therefore, it was an error to conclude that CSC could have foreseen that the sudden attack would have occurred as a result of a brief, minor verbal exchange.
The Prothonotary Erred in Law in Drawing an Adverse Inference Against the Defendant for Failing to Call Officer Jugloff
[41] The Crown submits that the Prothonotary also erred in law by drawing an adverse inference against the Defendant for failing to call Officer Jugloff as a witness in its defence of the action. She also erred by inferring that a breach of the duty of care was made out on the basis of that adverse inference.
[42] The Crown states that a court should only draw adverse inferences on a failure to call a witness in very limited circumstances, none of which were present in this case. An adverse inference against a defendant is only proper when a plaintiff has made out a prima facie case; it cannot be used to fill in the gaps in the plaintiff’s evidence: Chippewas of Kettle & Stony Point Nations v. Shawkence, [2005] F.C.J. No. 1030 (Chippewas) at paragraph 43.
[43] The Crown submits that the cause of action before Prothonotary Milczynski was a breach of the duty of care of prison officials. It is the Plaintiff who carried the burden of proof which, in the Crown’s submission, was not satisfied by the evidence before the Court. The Crown alleges that the Plaintiff was unable to make his case that CSC was aware of any pre-indicators of violence. Instead, the Prothonotary used an adverse inference to find that the Crown was aware of a pre-indicator of violence; specifically the verbal exchange between the Plaintiff and the assailant. As the party with the burden of proof, it was the Plaintiff’s responsibility to provide evidence that CSC was aware of a pre-indicator of violence and to make out a prima facie case for a breach of the duty of care, the elements of which cannot be found on the basis of an adverse inference: Chippewas at paragraphs 43-44.
[44] The Crown argues that, even if it was open to the Prothonotary to make an adverse inference against the Crown, the effect of such an inference should have been minimal: R v. Jolivet, [2000] 1 S.C.R. 751 (Jolivet).
[45] The Crown submits that its affidavit evidence did not explain Officer Jugloff’s absence; however, Officer Marshall and SIO Crisp were identified as the ideal witnesses because they could present the best evidence on the matter at issue. Officer Jugloff was not a necessary witness from the Crown’s perspective. The fact that the Crown called witnesses to speak to the fundamental issue before the Court extinguishes any need for the drawing of an adverse inference: Chippewas at paragraph 44.
[46] The Crown notes that, if the Plaintiff thought Officer Jugloff was a necessary witness, he should have made the effort to subpoena him. The Plaintiff was provided with a copy of Officer Jugloff’s report. The issue of the production of Officer Jugloff’s report was raised during the trial by the Prothonotary and the Crown advised the Prothonotary that the Plaintiff had been provided with a copy of the report and directed the court to the location of that report.
[47] The Crown concludes on this issue by noting that the adverse inference was not proffered by counsel for the Plaintiff and that a case should not be decided on issues that are not raised by counsel: Scowby v. Glendinning, [1986] 2 S.C.R. 226 at paragraph 69. Therefore, the Prothonotary erred by drawing an adverse inference against the Crown and by inferring that the breach of the duty of care was made out on the basis of that adverse inference. This is a palpable and overriding error.
The Prothonotary Erred in Law in Finding that there was a Duty to Create a Policy or Procedure for Telephone Use
[48] The Crown notes that the Prothonotary came to her conclusion that the absence of consistent or set policies or procedures for telephone use, in combination with a lack of surveillance of the telephone area, was a breach of the duty of care based on the following facts:
1) It should have been obvious that having prisoners wait around for a telephone would create a highly charged situation;
2) The possibility of a large amount of people in the telephone area due to the lack of a “one in, one out” policy to control the number of offenders who enter the area would increased the potential for conflict;
3) There was inadequate surveillance of the telephone area because:
i. The officer in the S Control Module who operated the barrier to the telephone area must turn his or her back on the entrance to the area in order to press the button which opens and closes the barrier; and
ii. There are no cameras watching the telephone area.
[49] The Crown submits that there is no statutory duty to establish and adhere to a policy or procedure for telephone use within a penitentiary and, consequently, there can be no breach of a duty of care for failure to do so. The statutory duty is to take reasonable care for the health and safety of an inmate while in custody. A policy for telephone use, or a policy decision not to develop a procedure for telephone use, cannot ground a finding that there was a breach of a duty of care. To find a breach of a duty of care, that authority and obligation must be found in statute.
[50] The Crown relies on the Supreme Court of Canada case in Just v. British Columbia, [1989] 2 S.C.R. 1228 (Just), where it was held that policy decisions are immune from the application of negligence law. The Crown also cites Coumont, at paragraph 47, where the Court relied on the Just decision and it was held that CSC’s decision to implement three types of custody is a policy decision and, therefore, immune to the application of negligence law.
[51] The Crown further cites Uni-Jet Industrial Pipe Ltd. v. Canada (Attorney General), [2001] M.J. No. 167 (M.B.C.A.) (Uni-Jet) at paragraphs 37, where the defendant was found liable for misfeasance in public office, but only after an examination of the statutes at issue confirmed that there was indeed a public duty not to perform the activity complained of (alerting the media that search warrants were going to be executed to search the plaintiff’s property). Paragraphs 37-38 of Uni-Jet read as follows:
37 Publication of an operational or policy manual is not unusual. Such documents are commonplace in governmental and commercial operations. There is, however, nothing that gives the manual or any part thereof the status of a regulation or a Commissioner's standing order. It does not have the force of law and cannot be the basis for either of the torts that were alleged by the plaintiffs. Danch v. Nadon and the Government of Canada (1977), 18 N.R. 568 (Fed. C.A.), and Armstrong v. Royal Canadian Mounted Police Commissioner (1994), 24 Admin.L.R. (2d) 1 (F.C.T.D.), support this conclusion as they do Jennings' own response when he said at the trial:
Well this is an outline, a guideline. This is a base on which to formulate a course of action. In the absence of any other considerations, this would be a suggested course of action.
38 I think it can be safely said both that the manual is not a regulation or standing order with any attendant force of law. By itself, it cannot be taken either as a definition of the standard of care required or as a description of statutory authority.
[52] The Crown also cites paragraph 19 from Iwanicki:
…The manpower used to guard the area, the lack of video cameras and the absence of classification officers working on weekends all appear to be policy issues and therefore exempt from “judicial scrutiny”, except to the extent that they are in breach of the statutory duty to take reasonable care for the safety of the person in custody…
[53] The Crown concludes on this issue by stating that the alleged failure to implement and/or adhere to a policy for telephone use cannot create a breach of the duty of care because there is no statute or regulation that mandates the need to have a telephone use policy.
The Prothonotary Erred in Finding that there was Evidence on which to find a Breach of a Duty of Care
[54] The Crown submits that even if there were statutory grounds on which to found a duty to implement and enforce a telephone use policy, a statutory duty does not necessarily create a duty in tort: Stewart v. Pettie, [1995] 1 S.C.R. 131 at paragraph 36 and Fullowka at paragraph 49.
[55] The Crown notes that the evidence before the Prothonotary revealed that it was not foreseeable that having prisoners wait for a telephone would create a highly charged situation or inmate tension. The Prothonotary also noted that there was no evidence of a history of violence or of physical altercations in the telephone area, or that any such history resulted from there being no “one in, one out” policy.
[56] The Crown alleges that there was no evidence of any conflict or violence in the telephone area, that the absence of a “one in, one out” policy would increase the potentional for conflict, or that there had been any conflict as a result of a lack of a “one in, one out” policy. The evidence that there were more people in the telephone area than phones was not, in the Crown’s view, definitive.
[57] There was evidence that three inmates were in the 5-phone area when the assailant and the Plaintiff were buzzed in. The Crown also points out that that the evidence fails to demonstrate that there was a lack of supervision in the telephone area, as there was a CSC officer stationed to observe activity in that area.
[58] The Crown notes that the lack of a camera in the telephone area at the time of the assault cannot found a conclusion that there was a breach of a duty of care. The Crown cites Hamilton at paragraph 14, which held that the lack of video surveillance at the time of an assault was not grounds to find a breach of the duty of care. There was also no evidence that having video cameras would have prevented the assault on the Plaintiff or that video cameras dissuaded inmates from attacking other inmates.
[59] Although the Crown acknowledged that the system could be improved, this does not mean it is defective, unreasonable or foolhardy. No disciplinary system or housing facility is foolproof, nor can it be expected to protect the entire prison population from itself, when considering the options available: Scott v. Canada, [1985] F.C.J. No. 35 (F.C.T.D.) citing Raby v. Canada, [1981] F.C.J. No. 423 (F.C.T.D.).
[60] The Crown concludes by stating that the CSC’s way of dealing with the telephone area was reasonable and effective. The Prothonotary erred in finding that there was a duty to enact policies with respect to the telephone area.
The Prothonotary Erred in Finding that the Plaintiff had Discharged his Burden of Proving Causation of his Injury
[61] The Crown submits that the Prothonotary also erred in finding that the Plaintiff had discharged his burden of proving the Crown had caused his Post Traumatic Stress Disorder (PTSD). The Crown notes that the Plaintiff bears the burden of proving, on a balance of probabilities, that negligence on the part of the Crown caused the Plaintiff’s injuries. The question to be asked is, “but for” the Crown’s actions, would the Plaintiff have been injured: Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333 (Resurfice) at paragraphs 21-22 and Snell v. Farrell, [1990] 2 S.C.R. 311 at paragraph 14. The Crown cites and relies upon the following paragraph from Resurfice:
23 The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and defendant's conduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327, per Sopinka J.
Psychological/Psychiatric Assessment Report of Dr. Cassells
[62] The Crown notes that Dr. Cassells was the Plaintiff’s psychiatrist from August, 2005 until January 26, 2008. Contrary to the Prothonotary’s finding, nowhere in his report is it mentioned that the Plaintiff suffered from PTSD. Dr. Cassells did not perform a diagnostic assessment to determine if the Plaintiff had PTSD. Also, Dr. Cassells testified that he was not treating the Plaintiff exclusively for his response to the events of June 23, 2005; there was a wide variety of other issues that had arisen out of trauma or other events prior to the Plaintiff being incarcerated.
[63] The Crown submits that the Prothonotary erred in relying on Dr. Cassells’ report to find that the Plaintiff suffered from PTSD because Dr. Cassells never diagnosed the Plaintiff with PTSD, nor did he ever test him or treat him for the disorder. The Plaintiff provided no evidence that he was not already suffering the same degree of trauma before the incident at Milhaven. Dr. Cassells also did not see the Plaintiff until 2 months after the incident. It was not possible to conclude the degree to which, if at all, the attack had affected the Plaintiff.
The Bath Institution Psychological Risk Assessment Update Provided by Dr. Cheston
[64] The Crown submits that the Prothonotary similarly erred in relying on Dr. Cheston’s report to conclude that the Plaintiff had PTSD. Contrary to the Prothonotary’s findings, Dr. Cheston did not diagnose the Plaintiff with PTSD. Furthermore, the purpose of Dr. Cheston’s report was risk assessment and not to determine whether or not the Plaintiff suffered PTSD. Dr. Cheston did not perform a PTSD diagnostic assessment of the Applicant based on the DSM-IV and he agreed that he did not and could not provide a medical opinion as to whether or not the Plaintiff suffered from PTSD.
[65] The Prothonotary erred in relying on Dr. Cheston’s report to determine that the Plaintiff suffered from PTSD because there was no testing performed to determine if the Plaintiff had actually suffered PTSD; there was no diagnosis of the condition by Dr. Cheston, and his report was simply a risk assessment. The Crown also notes that Dr. Cheston could not, and indeed did not, determine that the Plaintiff had PTSD, or that the assault caused any damage to the Applicant. Dr. Cheston’s examination was focused on a risk assessment and was not a psychological examination.
The Psychiatric Report of Dr. Mikhail Epelbaum
[66] The Crown submits that the Prothonotary also erred in relying on Dr. Epelbaum’s report as proof that the Plaintiff suffered from PTSD. The primary purpose of Dr. Epelbaum’s visit was not to assess the Plaintiff as to whether or not he suffered from PTSD. Dr. Epelbaum did not use the two widely-used PTSD assessments to diagnose the Plaintiff and he failed to administer a test for malingering, a test the DSM-IV notes is very important when secondary gain is involved, such as when a patient is suing for damages in a civil law suit.
[67] As well, Dr. Epelbaum met with the Plaintiff only once before making his diagnosis based on what the Plaintiff told him. The meeting occurred on March 23, 2007; however, the assault had occurred two years earlier on June 23, 2005. It was only after the Plaintiff began this litigation that he was diagnosed with PTSD.
The Plaintiff
[68] The Plaintiff agrees that CSC owed a duty to inmates to take reasonable care for their safety. The Plaintiff also accepts that there is a line of cases setting out that prisons and their employees are not guarantors of an inmate’s well-being except in cases where there are pre-indicators that harm may befall an inmate. In those cases, a duty of care is imposed on the prison to take reasonable steps to ensure protection from harm that CSC knows, or ought to have known, exists. The Plaintiff states that the Prothonotary correctly identified the sources of information upon which CSC relies in order to conclude that danger may exist. It comes from what CSC calls “dynamic” and “static” security.
[69] Dynamic security involves the use of relationships that may exist between the staff and inmates from which information of potential violence may be gleaned and acted upon. Static security, on the other hand, consists of the mechanical and electronic systems and structures that can operate to reduce potential harm. The Prothonotary identified a breakdown in both static and dynamic security as contributing to the stabbing of the Plaintiff. If there was a breakdown in these systems, CSC did not take the reasonable steps mandated by law to ascertain the pre-indicators of harm. CSC made itself wilfully blind to those pre-indicators.
[70] The Prothonotary found that dynamic security was breached because the staff were confused and had no instructions on how inmate queues should be managed. The Prothonotary outlined the confusion at paragraph 27 of her judgment. Officer Dustin claimed there is a “one-in, one-out” rule for managing access to the telephone room; whereas, Officer Crisp stated that the prison has nothing to do with establishing procedures for telephone access and further that there is no “one-in, one-out” rule.
[71] The Prothonotary correctly infers that in a prison setting, especially amongst newly-incarcerated inmates awaiting transfer in a relatively short time period, frustrations about the telephone access can build. It is a situation of which CSC should have known and been aware so that confusions as to policy by correctional staff ought not to exist.
[72] The Prothonotary also stated at paragraph 29 of her judgment that she was critical of the lack of camera surveillance. She pointed out that while there was some CCTV coverage, the images captured would not necessarily have been monitored because there were only three monitors for four cameras. The Plaintiff disagrees with the Crown’s reliance on Iwanicki that there is no breach of a duty of care when there are no surveillance cameras. Iwanicki held that the lack of cameras was a matter of provincial correctional policy and exempt from judicial scrutiny. The CSC adopted