Boily v. Canada

Boily v. Canada
Court (s) Database
Federal Court Decisions
Date
2022-08-31
Neutral citation
2022 FC 1243
File numbers
T-541-10
Notes
Reported Decision
Decision Content
Date: 20220831
Docket: T-541-10
Citation: 2022 FC 1243
Ottawa, Ontario, August 31, 2022
PRESENT: Mr. Justice Sébastien Grammond
BETWEEN:
RÉGENT BOILY
Plaintiff
and
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Defendant
Table of Contents
I. Overview 4
II. Factual Background 7
A. Mr. Boily’s Arrest in Mexico, his Escape and his Return to Canada 7
B. The Process Leading to Mr. Boily’s Extradition to Mexico 8
C. Mr. Boily’s Extradition and the Alleged Torture 10
D. The Present Action for Damages 16
E. The Committee Against Torture’s Decision 17
III. Did the Alleged Events Occur? 19
A. Basic Principles 20
(1) Standard of Proof 20
(2) Assessing Credibility 22
B. Criminal Record and Propensity to Lie 26
C. The Alleged Contradictions 28
(1) One or Two Trips? 28
(2) Lies and Omissions in his Statements to Mexican Police 29
(3) Cessation of Fear 30
D. Conflicting and Corroborating Evidence 31
(1) Testimony of the Prison Guard 32
(2) Lack of Visible Signs of Torture During Mr. Dubeau’s Visit 34
(3) The Mexican Authorities’ Denial 36
E. Plausibility 38
(1) Frequent Use of Torture in Mexico 38
(2) Mr. Boily’s Degree of Criminal Involvement 40
(3) August 21 Incident 42
F. Psychiatric Evidence Regarding Malingering 42
G. Summary of Credibility Assessment 45
IV. Damages for Breach of Section 7 of the Charter 47
A. Breach of Section 7 48
(1) The Scope of Section 7 in Relation to Deportation or Extradition 49
(2) New Risk 52
(3) Substantial Risk of Torture 57
(4) Extradition in the Face of a Substantial Risk of Torture Breaches Section 7 60
(5) Lack of Justification 63
(6) Other Issues 66
B. Functions Performed by the Award of Damages 69
(1) Compensation and Causation 70
(2) Vindication 74
(3) Deterrence 80
C. Countervailing Factors 81
(1) The Existence of Alternative Remedies 81
(2) Good Governance and Qualified Immunity 82
D. The Amount of Damages 87
(1) Principles 88
(2) Evidence of Harm 89
(3) Pre-existing Injury and the Thin-skull Rule 96
(4) The Appropriate Amount 99
(5) Solidarity 103
V. Disposition, Interest and Costs 105
JUDGMENT AND REASONS
I. Overview
[1] Torture is a universally condemned practice. It is a radical way of annihilating human dignity. It inflicts acute suffering on its victims and often results in long-term psychological damage.
[2] Torture is prohibited both internationally and domestically. Canada, along with over 170 other countries, has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Can TS 1987, No 36 [the Convention]. States that have ratified the Convention must criminalize torture. The Convention also prohibits the extradition or deportation of a person to a country where they would face a substantial risk of torture. Canadian law contains similar rules. Notably, section 269.1 of the Criminal Code prohibits torture. Further, as the Supreme Court stated in Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 SCR 3 [Suresh], and R v Bissonnette, 2022 SCC 23 [Bissonnette], torture is contrary to sections 7 and 12 of the Canadian Charter of Rights and Freedoms [the Charter].
[3] In this action for damages, the plaintiff, Régent Boily, claims that the defendant, Her Majesty the Queen [the federal government], extradited him to Mexico despite having received new information indicating that he would face a substantial risk of torture.
[4] The factual background of the case can be summarized as follows. Mr. Boily was found guilty of drug trafficking in Mexico. He escaped from the Cieneguillas prison in the State of Zacatecas, where he was incarcerated. During the escape, a prison guard was killed. Mr. Boily then returned to Canada. Mexico subsequently requested his extradition, so that he could serve the remainder of his sentence and face charges of escaping from lawful custody and manslaughter. The Minister of Justice agreed to this request, under the condition that Mexico provide diplomatic assurances regarding Mr. Boily’s safety. After Mexico gave such assurances, the Quebec Court of Appeal rejected Mr. Boily’s application for judicial review of the extradition order. Given the diplomatic assurances, the Court was of the opinion that Mr. Boily would not face a substantial risk of torture. However, on the eve of the extradition, federal officials learned that the Mexican authorities intended to detain Mr. Boily at the Cieneguillas prison, from which he had previously escaped and where the guard who was killed had been working at the time of the escape. Despite being aware of the substantial risk revealed by this new information, the federal government nevertheless handed Mr. Boily over to the Mexican authorities the next day. Mr. Boily alleges that guards at the Cieneguillas prison tortured him three times in the days following his extradition. The torture techniques used included submerging Mr. Boily’s head in a barrel of filthy water, suffocating him with a plastic bag, and injecting hot sauce into his nose.
[5] I am allowing Mr. Boily’s action because the federal government breached his right to security of the person under section 7 of the Charter. The internal memoranda filed in evidence clearly show that federal officials knew that returning Mr. Boily to the prison from which he had escaped exposed him to a serious risk of reprisal. Save in exceptional circumstances, which are not present here, extraditing or deporting a person to a country where they will be exposed to a substantial risk of torture breaches section 7. If the federal government had not extradited Mr. Boily after becoming aware of this substantial risk, or if it had taken steps to counter it, Mr. Boily would not have been tortured by the guards at the Cieneguillas prison. Thus, the federal government’s conduct caused the harm Mr. Boily suffered.
[6] I also reject the defences put forward by the federal government. The decision to extradite Mr. Boily despite the new information obtained on the eve of the extradition is not immune from suit. This information and the resulting risk had not been assessed by the Minister of Justice or by the Quebec Court of Appeal. Hence, Mr. Boily’s action does not amount to a collateral attack against those decisions. Moreover, Mr. Boily’s testimony was credible, and the federal government cannot blame him for the lack of evidence corroborating his allegations of torture. In light of all the evidence, I find that Mr. Boily has proven on a balance of probabilities that he was tortured in the days following his extradition.
[7] I therefore award Mr. Boily damages in the amount of $500,000, in order to compensate him and ensure the vindication of his rights.
[8] It may come as a surprise that such a large amount of money would be awarded to someone who has been convicted of serious crimes. Can one be both an offender and a victim? No one questions the validity of the convictions against Mr. Boily nor the sentences imposed on him. Mr. Boily breached several fundamental norms of Mexican society. His escape from prison cost an innocent guard his life. Nothing can compensate the loss suffered by the latter’s family. Because of those crimes, Mr. Boily was incarcerated for nearly fourteen years, eleven of which were spent in Mexican prisons. The legitimate punishment he deserved, however, did not include torture. The prohibition of torture flows from the obligation to respect the human dignity of all persons “irrespective of their actions”: Bissonnette, at paragraph 59. The federal government did not seek the dismissal of Mr. Boily’s claim on the sole basis that he committed serious crimes. Therefore, regardless of his criminal record, Mr. Boily must be compensated for the harm resulting from being exposed to a substantial risk of torture.
II. Factual Background
[9] First, it is necessary to establish the factual setting that gave rise to Mr. Boily’s action for damages. I will outline the main undisputed facts pertaining to his arrest, escape, extradition and early detention in Mexico. I will then describe the alleged acts of torture, the credibility of which will be assessed later. I will also summarize the procedural background of this action and discuss the decision rendered by the United Nations Committee against Torture with respect to Mr. Boily’s case.
A. Mr. Boily’s Arrest in Mexico, his Escape and his Return to Canada
[10] Mr. Boily was born in 1944. Following the accidental death of his wife, he left Canada and settled in Mexico in 1993. He remarried a Mexican citizen.
[11] On March 9, 1998, Mexican police officers near the town of Fresnillo, in the state of Zacatecas, arrested Mr. Boily after they discovered over 500 kg of marijuana in his recreational vehicle. Mr. Boily alleges that the officers threatened to kill him if he did not name his accomplices. When he refused to talk, the officers allegedly tortured him, notably by suffocating him with a plastic bag and injecting chili sauce and carbonated water into his nostrils. He was allegedly forced to sign a statement written in Spanish, which he could not understand. The officers then threatened to kill him if he revealed the abuse he had suffered.
[12] On November 10, 1998, Mr. Boily was sentenced to 14 years in prison. He was incarcerated at the Cieneguillas prison, in the state of Zacatecas.
[13] On March 9, 1999, Mr. Boily escaped from prison. After claiming he had lost his glasses, he was taken under escort to an eye clinic. On the way back, armed men intercepted the vehicle he was in and seized him. During this event, one of the two guards accompanying Mr. Boily was shot and killed. Mr. Boily maintains that he never heard the shot and infers that he had already left the scene when the guard was killed.
[14] Over the next few weeks, Mr. Boily travelled to various locations in Mexico. With the help of his in-laws, he covertly crossed the Rio Grande and then took domestic flights within the United States to reach Burlington, Vermont. He then crossed the Canadian border on foot. For the next several years, he lived in the Outaouais region under his true identity.
B. The Process Leading to Mr. Boily’s Extradition to Mexico
[15] In 2003, Mexico requested that Mr. Boily be extradited so that he could serve the remainder of his sentence and face charges of manslaughter and escaping from legal custody. He was arrested on March 1, 2005. On May 27, 2005, the Minister of Justice issued an Authority to Proceed pursuant to section 15 of the Extradition Act, SC 1999, c. 18. Mr. Boily was detained pending his extradition. On November 25, 2005, the Superior Court ruled that there was sufficient evidence to justify his extradition.
[16] Under section 40 of the Extradition Act, it was then up to the Minister of Justice to decide whether to issue an extradition order. In opposing the issuing of such an order, Mr. Boily argued that he would face a substantial risk of torture in Mexico. He invoked three grounds for his fear: (1) he had been tortured at the time of his initial arrest; (2) he was now accused of murdering a prison guard; and (3) reports about the human rights situation in Mexico noted the frequent use of torture. On May 24, 2006, after considering Mr. Boily’s submissions, the Minister of Justice ordered his extradition. The Minister acknowledged that reports on the human rights situation in Mexico indicated that the Mexican police and armed forces were involved in various human rights violations. However, the Minister was of the opinion that Canada could meet its obligation not to return Mr. Boily to a country where he would face a substantial risk of torture by obtaining assurances from Mexico that (1) reasonable precautions would be taken to ensure Mr. Boily’s safety; (2) his counsel or Canadian consular services would be able to visit him at all times; (3) he would be able to communicate with them at all times; and (4) his trial would be held within a reasonable time.
[17] On November 16, 2006, Mexico provided the requested assurances. On January 22, 2007, the Minister of Justice wrote to Mr. Boily’s counsel, informing them that he was satisfied with the assurances received from Mexico.
[18] Mr. Boily sought judicial review of the Minister of Justice’s decision authorizing his extradition. On February 22, 2007, the Quebec Court of Appeal dismissed the application: Boily c Canada (Ministre de la Justice), 2007 QCCA 250. The Court found that the Minister’s decision was reasonable in light of all the evidence. It noted that Mr. Boily’s fears arising from the accusation of homicide of a prison guard and reports of frequent torture in Mexico were general in nature. In the Court’s view, the Minister had taken those fears into account and reasonably considered that they were mitigated by the assurances provided by Mexico.
[19] Mr. Boily applied for leave to appeal the Court of Appeal’s decision. The Supreme Court of Canada dismissed that application on July 5, 2007.
[20] On July 4, 2007, Mr. Boily filed a communication with the United Nations Committee against Torture, requesting urgent measures to stay his extradition. On July 6, 2007, the Committee requested that Canada stay Mr. Boily’s extradition pending a more complete review of the case. On July 26, 2007, the Canadian government requested that the Committee withdraw its request for a stay of extradition, because Mr. Boily’s concerns were general in nature, not supported by human rights reports in Mexico and had been considered by Canadian courts. On August 13, 2007, the Committee withdrew its request for a stay of his extradition.
C. Mr. Boily’s Extradition and the Alleged Torture
[21] Mr. Boily’s extradition to Mexico was set for Friday August 17, 2007. On August 15, two days earlier, officials from the Department of Foreign Affairs learned of Mr. Boily’s imminent extradition in the newspapers.
[22] Sally Dowe Marchand, a case officer at the Consular Affairs Division in Ottawa, then sought to obtain the text of the diplomatic assurances. Upon reading this document, on August 16, 2007, she concluded that Mr. Boily would be incarcerated at the same prison from which he had escaped and where the guard murdered during his escape had worked. For her part, Isabelle Desjardins, a consular officer at the Canadian Embassy in Mexico, expressed serious concerns that Mr. Boily could face reprisals if he returned to that prison. Ms. Desjardins and Robin Dubeau, Consul General of Canada in Mexico, immediately took steps with the Mexican authorities to have Mr. Boily transferred to another prison.
[23] However, that same afternoon, officials of the Department of Foreign Affairs in Ottawa held discussions on the matter. They decided not to intervene with the Mexican authorities. Mr. Dubeau and his colleagues at the embassy immediately ceased their efforts.
[24] Mr. Boily was extradited the next day, August 17, 2007. Upon boarding the plane to Mexico, he was told by the Mexican officers escorting him that he would be held at the Cieneguillas prison (May 2, 2022, transcript, pp 99–100). Upon his arrival at the Mexico City airport, Mexican media were present to film the event (Ms. Desjardins’ report, Exhibit 47). Mr. Boily then met with Ms. Desjardins and expressed his concern about being sent back to the same prison. Given this concern, Ms. Desjardins decided to monitor the situation more closely than she normally would. Mr. Boily then flew to Zacatecas and arrived at the Cieneguillas prison that evening.
[25] Mr. Boily alleges that he was tortured during the first days of his detention at the Cieneguillas prison. Upon his arrival on August 17, 2007, two guards roughed him up and threatened to kill him to avenge their colleague who had died during his escape in 1999. That evening, these same two guards, accompanied by the prison’s head of security, took Mr. Boily to a deserted area of the prison and tortured him. Mr. Boily was allegedly beaten several times, before having his head submerged about ten times in a barrel of filthy water. He then collapsed face down. One of the guards sat on his back and repeatedly tried to put a plastic bag over his head. As Mr. Boily struggled, the three guards worked together to put the plastic bag over his head, suffocating him until he became unconscious. When he woke up, they tried to hold his head under a water faucet. They then injected hot sauce into his nostrils. They told him that they wanted to avenge the death of their colleague and threatened to kill him if he reported what had happened.
[26] Another inmate saw Mr. Boily as he was being taken back to his cell and offered to help him. Mr. Boily asked him to contact his family and his Canadian counsel, Mr. Deslauriers. Indeed, at that time, the prison authorities did not allow Mr. Boily to make telephone calls (transcripts of May 2, 2022, pp 136–37, and May 3, 2022, p 3).
[27] On Sunday, August 19, 2007, Mr. Boily was taken to the prison warden’s office, where he was asked to answer a Mexican television reporter’s questions. That evening, the same three guards tortured him just like they had done on August 17.
[28] On Monday, August 20, 2007, Mr. Boily received a phone call from his daughter, who had been contacted by the fellow prisoner. He provided her with a summary of what had happened to him and asked her to contact his counsel and his sister.
[29] That same day, Canadian embassy staff in Mexico took steps to ensure that the assurances provided to Canada, with respect to Mr. Boily, were complied with. A consular officer, Valérie Malingreau, attempted to reach the prison warden. In the middle of the afternoon, she managed to speak to the prison’s legal affairs officer, who was already aware of Mr. Boily’s case and who reassured her that Mr. Boily could make telephone calls (Exhibit 56). For her part, Ms. Desjardins sent an official letter to the prison warden (Exhibit 57), stating that [translation] “we are concerned for the safety of the inmate considering the nature of the charges against him.”
[30] Finally, given the distance between the state of Zacatecas and Mexico City, the embassy contacted the Zacatecas State Human Rights Commission, a non-governmental organization whose mission includes the monitoring of prison conditions and which was able to quickly dispatch a representative to the prison. Upon learning of the circumstances of the case, a Commission representative decided to go immediately to the Cieneguillas prison to meet with Mr. Boily. However, Mr. Boily did not know if he could trust this person and did not disclose to him the torture he had suffered.
[31] In the late afternoon, Ms. Desjardins managed to speak to Mr. Boily. He told her that he was not allowed to call the embassy and that he had not had access to the medication he needed because a guard had torn up his prescription. He did not disclose the torture to her at that time. Instead, he told her that he was surrounded by guards and that he did not feel comfortable talking, [translation] “for fear of making his situation worse” (see Ms. Desjardins’s note, Exhibit 59; May 3, 2022, transcript, pp 5–6).
[32] On the morning of August 21, 2007, Mr. Boily’s sister telephoned Ms. Dowe Marchand to tell her that her brother had been [translation] “mistreated, insulted, scorned”. In the early afternoon, Mr. Deslauriers sent a letter to Ms. Desjardins indicating that he had learned that Mr. Boily had been tortured during the evening of August 19 and that he did not have access to a telephone. Embassy staff then arranged to visit Mr. Boily as soon as possible. (Witnesses at the hearing were not very specific about when the decision to hasten the visit was made.) A letter (Exhibit 75) was sent to the prison warden informing him that the visit would take place the following day.
[33] On Tuesday evening, August 21, 2007, the same three guards allegedly tortured Mr. Boily using similar methods to the past two times.
[34] On Wednesday, August 22, 2007, Mr. Dubeau and Ms. Malingreau visited Mr. Boily at the Cieneguillas prison. Mr. Boily disclosed to them the acts of torture he had been subjected to. However, he requested that they keep the information confidential, as he was concerned for his safety. During the conversation, Mr. Boily expressed his wish to be transferred to another prison, where the guards would not know him. The embassy representatives then spoke with the prison warden. They reminded him of the importance of ensuring Mr. Boily’s safety, particularly because of the animosity that some guards might have towards him. It was agreed upon that Mr. Boily would call the embassy twice a week and that he would receive the medication that his condition required. Mr. Dubeau and Ms. Malingreau also spoke with the prison doctor, primarily about Mr. Boily’s health and medication.
[35] That same day, the acting head of mission of the Canadian Embassy, Grant Manuge, telephoned the deputy director general for North America of the Mexican Ministry of Foreign Affairs (Exhibit 83; May 9, 2022, transcript, pp 74–76). He told him that Mr. Boily had complained about his mistreatment, but avoided using the word “torture.” He reminded him of the diplomatic assurances Mexico gave and emphasized Canada’s consular interest in Mr. Boily’s case. The following day, on August 23, his interlocutor called him back and informed him that he had requested that the Zacatecas authorities conduct an investigation into the matter and that they respect Mr. Boily’s human rights. A few weeks later, the Mexican authorities sent a diplomatic note containing the prison warden’s response dated August 23 in which he stated that Mr. Boily had always had access to a telephone and denying the allegations of torture. He added that Mr. Boily had been examined by a doctor in the presence of Mr. Dubeau and that no injuries had been observed (Exhibit 123A).
[36] During the August 22 visit, Mr. Dubeau reassured Mr. Boily that he could speak in confidence to the Human Rights Commission’s representatives (May 3, 2022, transcript, p 118). Mr. Boily told Mr. Dubeau that he wished to be transferred to another prison, where the guards would not know his history. On September 4, 2007, he gave a written statement to the Human Rights Commission in which he claimed that he was tortured at the Cieneguillas prison on August 17, 19 and 21, 2007. By September 4, however, Mr. Boily was more hesitant about a transfer because of information he had received about the federal prison in Puente Grande, where discipline was stricter. He also stated that the attitude of the prison staff had completely changed after Mr. Dubeau and Ms. Malingreau’s August 22 visit. He said, “Now I feel calm. I’m not afraid anymore.” He stated that he did not want to make a complaint. He ultimately decided to abandon the transfer request (May 3, 2022, transcript, pp 21–22, 127–31). He remained incarcerated at the Cieneguillas prison until 2010.
[37] Before going any further, it may be useful to note that Mr. Boily was convicted of escaping from legal custody and manslaughter in connection with the events of March 1999 and was sentenced to serve 30 years in prison, which was subsequently reduced to 16 years. In June 2017, he was repatriated to Canada under the International Transfer of Offenders Act, SC 2004, c 21. He has been on parole since December 2017.
D. The Present Action for Damages
[38] Mr. Boily commenced this action for damages in 2010. The federal government responded with a motion to strike, claiming that this action was an abuse of process, as it called into question the Minister of Justice’s decision to extradite Mr. Boily, which had already been upheld by the Quebec Court of Appeal.
[39] Prothonotary Morneau allowed this motion in part: Boily v Canada (Attorney General), 2010 FC 1228. He determined that the portions of the statement of claim impugning the decision to extradite Mr. Boily and the decision to accept assurances from Mexico amounted to an abuse of process. However, he declined to strike the portions of the statement that dealt with the lack of adequate monitoring of the Mexican authorities once the decision to extradite Mr. Boily had been made. According to the Prothonotary, that was a separate cause of action.
[40] The decision of Prothonotary Morneau was not appealed. It is therefore res judicata. It circumscribes the issues in this case.
[41] It took 12 years for the action to be perfected. The parties raised numerous procedural issues that had to be decided by this Court, and on two occasions by the Federal Court of Appeal. There is no need to enumerate them.
[42] It should also be noted that although the case raises issues of constitutional law and even international law, the parties agree that the applicable suppletive law is Quebec law, presumably pursuant to article 3126 of the Civil Code of Québec, since Mr. Boily resided in Quebec at the time of his extradition and continues to do so today. In terms of the rules of evidence, the Canada Evidence Act, RSC 1985, c C-5, must of course be applied, supplemented with Quebec law if necessary.
E. The Committee Against Torture’s Decision
[43] Concurrently with the present action, Mr. Boily pursued his efforts to obtain a decision regarding the complaint he submitted to the United Nations Committee against Torture. On November 14, 2011, the Committee upheld this complaint: UN Doc CAT/C/47/D/327/2007. After setting out the parties’ submissions and finding the complaint admissible, the Committee stated that the issue at hand was “whether, at the time the extradition took place, [Mr. Boily] ran a foreseeable, real and personal risk of torture.” The Committee’s findings are set out in paragraph 14.5 of its decision:
In this case, the Committee is of the view that the State party did not take into account, before deciding on extradition, all of the circumstances indicating that the complainant ran a foreseeable, real and personal risk of torture. First, the State party gave no consideration to the fact that the complainant would be sent to the same prison in which a guard had died during the complainant’s escape years before, and that the guard’s death too was a subject of the extradition request. Second, the agreed system of diplomatic assurances was not carefully enough designed to effectively prevent torture. The diplomatic and consular authorities of the State party were not given due notice of the complainant’s extradition and not informed of the need to stay in close and continuous contact with him from the moment he was handed over. In this case the diplomatic assurances and the foreseen consular visits failed to anticipate the likelihood that the complainant had the highest risk of being tortured during the initial days of his detention. This risk proved to be true, as the complainant arrived in Mexico on 17 August 2007 and stated that he was subsequently tortured from 17 to 20 August 2007. However, the State party did not take steps to check on his safety until 22 August 2007. The Committee concludes therefore that the extradition of the complainant to Mexico in those circumstances constituted a violation by the State party of article 3 of the Convention.
[44] Notwithstanding the Committee’s decision, I will undertake an independent review of Mr. Boily’s claim, for two main reasons.
[45] First, this Court is a Canadian court that applies first and foremost Canadian law. In contrast, the Committee makes decisions according to international law. The application of international law by Canadian courts raises complex, sensitive and sometimes controversial issues, as evidenced by the recent cases of Nevsun Resources Ltd v Araya, 2020 SCC 5, and Quebec (Attorney General) v 9147-0732 Quebec Inc, 2020 SCC 32. In some cases, Canadian law may provide a complete solution to a dispute. As will be seen below, that is the case here. In such cases, it is not necessary to address issues of international law.
[46] Second, the evidence before this Court is much more extensive than that which was before the Committee. The Committee reaches its decision based on the record and does not hear witnesses. In contrast, the proceedings before this Court involve the communication of documentary evidence in the possession of the parties and a trial in which witnesses are heard orally and cross-examined. The cross-examination of witnesses at trial remains a privileged tool in the search for truth, particularly when their credibility is a central issue. This Court’s fact-finding advantage has been summarized by the Supreme Court of Canada as follows: “[t]he trial judge is better situated to make factual findings owing to his or her extensive exposure to the evidence, the advantage of hearing testimony viva voce, and the judge’s familiarity with the case as a whole”: Housen v Nikolaisen, 2002 SCC 33 at paragraph 18, [2002] 2 SCR 235.
III. Did the Alleged Events Occur?
[47] Before addressing the legal issues raised by Mr. Boily’s action, it is necessary to establish the facts. This is a necessary and delicate exercise, since the federal government argues that Mr. Boily is not a credible witness and that he has not met the burden of proving the facts on which his action is based, namely that he was tortured when he arrived at the Cieneguillas prison in August 2007.
[48] In short, the federal government claims that Mr. Boily’s criminal record seriously affects his credibility. Mr. Boily’s testimony is allegedly inconsistent and contradicted by other evidence presented at trial. Most importantly, Mr. Boily’s story would be implausible, particularly with respect to his criminal involvement and the circumstances of his return to Canada after his escape. Finally, Mr. Boily’s version of events is not corroborated; on the contrary, it would be contradicted by the denial of the Mexican authorities and by the testimony of one of the prison guards he accused of torturing him.
[49] For the reasons that follow, I find that Mr. Boily is credible and has proven the facts that he alleges on a balance of probabilities.
A. Basic Principles
[50] To analyze these claims, one must begin with a reminder of certain basic principles concerning the standard of proof in civil cases and the assessment of the credibility of witnesses.
(1) Standard of Proof
[51] The search for truth is often presented as the ultimate goal of a trial. However, judges do not have direct access to the truth. They must rely on the evidence presented to them in order to make findings of fact. In a trial, the evidence is often equivocal. Judges seek the truth, but rarely find absolute certainty. A decision must often be made in the face of residual uncertainty as to the facts.
[52] The degree of uncertainty that can be tolerated in determining the facts is reflected in what is known as the standard of proof. In a criminal trial, the margin of uncertainty is narrow: guilt must be proven beyond a reasonable doubt. The reason for adopting such a high standard of proof is to avoid at all costs convicting an innocent person. In other words, we prefer that the Crown bear the burden of any residual uncertainty with respect to the facts.
[53] On the other hand, in civil matters, a greater degree of uncertainty is tolerated, because society does not seek to protect the defendant at the expense of the plaintiff. The standard of proof does not favour one party; it does not seek to place the burden of uncertainty on one party over the other: Sidney N Lederman, Alan W Bryant and Michelle K Fuerst, The Law of Evidence in Canada, 6th ed (Markham: LexisNexis, 2022) at paragraph 5.65 [Sopinka on Evidence]; FH v McDougall, 2008 SCC 53 at paragraph 42, [2008] 3 SCR 41 [McDougall].
[54] This standard of proof is the balance of probabilities. It is described in article 2804 of the Civil Code of Québec:
2804. Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof.
2804. La preuve qui rend l’existence d’un fait plus probable que son inexistence est suffisante, à moins que la loi n’exige une preuve plus convaincante.
[55] The factual issue that is central to this case is whether Mr. Boily was indeed tortured in the days following his extradition to Mexico. The standard of proof on a balance of probabilities means that I must consider whether it is more likely than not that this claim is true. If it is, I must find that Mr. Boily was tortured, even if there remains some doubt or a possibility that it is not true.
[56] Neither the seriousness of Mr. Boily’s allegations, nor the fact that they may otherwise constitute a criminal offence, justify the imposition of a higher standard: McDougall, at paragraphs 40 and 49.
[57] The fact that the standard of proof is lower in civil cases than in criminal cases does not mean that fact-finding is a task that can be taken lightly. When a judge makes a finding of fact despite lingering uncertainty, the judge is simply applying the standard of proof on a balance of probabilities. Of course, this uncertainty makes fact-finding more difficult, but “[a]s difficult as the task may be, the judge must make a decision”: McDougall, at paragraph 46.
(2) Assessing Credibility
[58] In this case, Mr. Boily’s credibility is a crucial factor in assessing the evidence on a balance of probabilities. Indeed, the evidence of the August 2007 acts of torture rests almost entirely on Mr. Boily’s testimony. It follows that Mr. Boily’s credibility is a decisive factor, since the truth of his testimony necessarily results in the rejection of the federal government’s factual arguments; see, by analogy, McDougall, at paragraph 86.
[59] Credibility is simply a measure of the reliability of a person’s testimony. Courts attach great importance to assessing the credibility of witnesses in order to avoid basing their decisions on evidence that is deceitful or merely erroneous.
[60] Assessing credibility is not a scientific or mathematical exercise. Rather, it is a matter of common sense. Like any person who must consider whether they believe what another person tells them, judges weigh all of the available information in order to make a judgment about the credibility of witnesses. The rules of evidence circumscribe the type of information that may be considered, in part to prevent the assessment of credibility from overshadowing the substantive issues or from becoming a trial of the witness’ character.
[61] The rules of evidence, however, do not dictate the outcome of the exercise or the weight to be given to each relevant piece of evidence. Nevertheless, case law has developed a number of principles to guide this process. These principles have been developed primarily in the criminal context. In many respects, they are related to the presumption of innocence and the respective roles of the judge and the jury. Regardless, the wisdom they embody is equally useful in civil matters, to help the judge avoid the pitfalls of falsehood and failing memory.
[62] The nature of the federal government’s submissions leads me to consider the role of a witness’s criminal record and of corroborating evidence in assessing credibility. In criminal cases, the judge must caution the jury against convicting an accused on the basis of testimony of doubtful credibility unless it is corroborated: Vetrovec v The Queen, [1982] 1 SCR 811 [Vetrovec]; R v Khela, 2009 SCC 4, [2009] 1 SCR 104. A witness’s criminal record is a factor that can adversely affect the witness’s credibility and triggers the application of this rule. The reason is simple: a person who violates the basic social norms embodied by the criminal law is also likely to disregard the social norm of telling the truth. To this end, under section 12 of the Canada Evidence Act, RSC 1985, c C-5, witnesses may be asked whether they have ever been convicted of any criminal offence, and proof of the convictions may be adduced if need be.
[63] However, a criminal record is not a bar to admissibility or a presumption that the testimony is not credible: R v Corbett, [1988] 1 SCR 670 at 687. In that case, the Supreme Court suggested a more nuanced approach (at p 685):
There can surely be little argument that a prior criminal record is a fact which, to some extent at least, bears upon the credibility of a witness. Of course, the mere fact that a witness was previously convicted of an offence does not mean that he or she necessarily should not be believed, . . .
[64] Nor does the rule in Vetrovec translate into a strict requirement of corroboration. In criminal cases, an accused may be convicted on the basis of the testimonial evidence of an unsavoury witness, provided the jury is satisfied that that evidence is true: Khela, at paragraph 37. Nor is there a strict requirement of corroboration in civil cases. Of course, corroborative evidence increases the likelihood that an alleged fact is true. Nevertheless, uncorroborated testimony may, depending on the circumstances, establish a fact on a balance of probabilities. Indeed, article 2844 of the Civil Code of Québec specifically states that testimonial evidence may be given by a single witness. Similarly, in McDougall, at paragraph 80, the Supreme Court held that, after carefully weighing all the relevant facts, a trial judge could believe a witness who had reason to lie even in the absence of corroboration. See also Superior Energy Management Gas, lp c 9102-8001 Québec inc, 2013 QCCA 682, at paragraph 7.
[65] Another important principle in assessing credibility is the consistency that one would expect from a witness. A person who has observed certain facts should be able to provide a similar description of those facts on different occasions as well as provide an account that is internally coherent. In this regard, contradiction can reveal gaps in memory or expose falsehoods. Cross-examination is probably one of the most incisive tools for detecting inconsistencies in testimony. A witness may also be contradicted by the witness’s previous statements or by the testimony of others.
[66] Lastly, credibility is assessed on the basis of plausibility, that is, by asking whether the reported facts are consistent with common sense or common experience. The concept of plausibility was described as the testimony’s “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions” in a classic decision of the British Columbia Court of Appeal: Faryna v Chorny, [1952] 2 DLR 354 at 357. In assessing the plausibility of testimony, two pitfalls must be avoided.
[67] First, improbability should not be confused with implausibility: Al Dya v Canada (Citizenship and Immigration), 2020 FC 901 at paragraphs 35–36 [Al Dya]. A fact is not implausible merely because it has less than a 50% probability of occurring. Improbable things can happen. Therefore, findings of implausibility should be made only in the clearest cases.
[68] Second, to determine whether facts occurring in a foreign country are plausible, care must be taken not to give undue weight to common experience tied to the Canadian context: Al Dya, at paragraphs 27–28. Indeed, what would be implausible in Canada may occur frequently in another country. This is particularly important in this case. It is risky to make findings of implausibility about facts relating to crime or the prison setting in Mexico in the absence of reliable information on the subject.
[69] The particular context of the allegations of torture must be kept in mind when applying the foregoing principles. In the vast majority of cases, it is the police or prison authorities who practice torture. It should not be surprising that many victims of torture are accused of a cri