Date: 19980601
Docket: T-1982-96
BETWEEN:
PAUL CARLSON
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT
MacKAY J.
[1] This is an action brought against the Crown for damages arising from personal injuries allegedly sustained by the plaintiff while he was an inmate at the Saskatchewan Penitentiary. The plaintiff, representing himself, seeks, by statement of claim dated September 4, 1996, $250,000 for emotional, physical and mental pain and suffering, as well as costs. The plaintiff, a prisoner in the Special Handling Unit at the Saskatchewan Penitentiary, alleges that he suffered harm from physical injuries caused by Corrections officers and from loss of liberty associated with his move to high security, from loss of family contact, and from the mental stress of harassment in the prison. The defendant denies that the plaintiff has suffered the loss or injuries alleged or, alternatively, asserts that the plaintiff is responsible for any loss or injury he suffered.
Background
[2] The plaintiff is serving an indeterminate sentence for a number of violent and sexual offences. He has been declared a dangerous offender. In September 1994, the plaintiff was transferred to Saskatchewan Penitentiary, from the Kent Institution in the Pacific Region, because of intelligence reports suggesting he was planning acts of violence against female staff at the latter institution. These intelligence reports, coupled with reports that he had planned similar acts while incarcerated in another prison, resulted in his placement in the Special Handling Unit (SHU) upon arrival at the Saskatchewan facility. While he was in the SHU in early September 1995, the plaintiff fell in his cell, striking his head. A medical report dated September 15, 1995, describes the effects of this fall as follows: "Head and neck normal aside from a small scab on his posterior scalp with some associated tenderness from his previous fall but no swelling or evidence of infection." On September 15, the plaintiff was moved and held temporarily in the Regional Psychiatric Centre (Prairies) near Saskatoon after he refused to take required anti-psychotic medication and to eat. Intelligence reports from his stay at this facility indicated that while there the plaintiff had targeted two staff members as potential rape victims.
[3] On October 3, 1995, the plaintiff was transferred back to the Saskatchewan Penitentiary SHU. There his behaviour appears to have been noted as odd; he expressed a belief that his food was poisoned and he sent correspondence to the Governor of Oregon requesting the execution of prison staff members. On December 20, the plaintiff covered the window of his cell with paper and began conversing with imaginary police officers. When he failed to respond to repeated inquiries by Corrections officers, he was forcibly extracted from his cell and confined to a strip cell. There, within the SHU, he was held for several weeks.
[4] In this action, the plaintiff takes issue with his transfer to the Saskatchewan Penitentiary, argues that he suffered injury by reason of the fall in his cell in September 1995 and again during the forcible extraction from his cell in December, and he urges that his treatment while in the strip cell constituted cruel and unusual punishment. Turning to the specifics of his allegations, the plaintiff argues that his transfer was based on information from informants who were not credible and it resulted in a loss of family contact and a further deprivation of liberty by his transfer and incarceration in the higher security Saskatchewan facility. The plaintiff urges that the medical reports at Kent Institution did not show him to be a danger to female staff and that no charges were laid that support the allegation that he was planning an attack.
[5] With respect to his fall in his cell in September 1995, the plaintiff alleges he was on anti-psychotic medication inconsistent with his clinical diagnosis and, as a result of the medication, he suffered a black out and fell to the floor, striking his head. He allegedly awoke disoriented, with blood dripping from his head and with a concussion. When eventually asked by staff if he needed to see the psychiatrist, the plaintiff was so disoriented, he does not recall what he said. The defendant alleges that the plaintiff's anti-psychotic medication was administered and prescribed by medical staff within Corrections Canada. Staff regularly check segregation cells, including the applicant's cell at the time, approximately every 45 minutes.
[6] In regard to the events on December 20, 1995 the plaintiff alleges he was assaulted by several Correctional officers who forced him against the cell bed and struck him four times with a baton on his ribcage and arm. The plaintiff says he then had his pants, including his underwear, pulled down in front of a female guard. None of this alleged assault was videotaped, in violation of Corrections policy. The plaintiff further asserts that he was not given proper medical care for harm suffered during this alleged assault; namely, injuries to his ribs which he claims were broken or fractured. This medical assistance was denied, it is said, despite a request by the plaintiff to a nurse attending to him after the extraction that he be examined by a doctor.
[7] For two and a half months after this event, the plaintiff alleges he was held in the segregation strip cell and was denied normal privileges such as daily showering, cleaning of his cell and access to hygiene products, including towels, a toothbrush and clean clothes. His sleeping mattress was said to be stained with urine and no sheets or pillows were provided. Over the plaintiff's period in the strip cell, it is alleged he lost 40 pounds, a function of stress, distress, depression and exposure to verbal harassment by Corrections officers.
[8] For the defendant, it is urged that the plaintiff was behaving strangely before his cell extraction. He had accused staff and the RCMP of monitoring him on a 24 hour basis. He came to interviews with kleenex plugging his nose and ear passageways, alleging that Corrections staff were trying to poison him. The extraction team entered the cell only after the plaintiff failed to respond to Corrections staff, had covered his cell window and was heard speaking to imaginary RCMP officers. For the defendant, it is alleged no excessive force was used. It is said the plaintiff's clothing, but not his underwear, was removed to prevent him from concealing any weapons. The defendant concedes no videotaping took place owing to a shortage of staff, but alleges the plaintiff was questioned by a nurse after the extraction. The plaintiff was subsequently examined by a psychiatrist who prescribed anti-psychotic medication which the plaintiff refused to take. The defendant alleges that while in the strip cell, the plaintiff frequently turned down opportunities to shower and clean out his cell.
The evidence of the witnesses
[9] At trial, evidence was adduced from nine witnesses, all of them Corrections employees and most of whom were present on the evening of the cell extraction and played a part in that extraction. More specifically, Mr. Chris Mudjar and Mr. Skip Fengstad were equipped with batons, Mr. Alan Hagen was charged with employing the shield, Mr. Roger Boucher was the leader and in charge of arrest and control. Ms. Sherry Anderson and Mr. Briere served as observers of the extraction. Mr. Terry Chris Brown and Mr. Lyle Gunerson were Correctional Supervisors of the Special Handling Unit at all material times, but were not present at the extraction. Mr. Cameron Priestley was a registered nurse working with Correctional Services.
[10] On the basis of these witnesses' testimony, it is clear that a cell extraction of the plaintiff took place at approximately 11:30 pm on December 20, 1995, and that some force was used to subdue the plaintiff, who had papered over his window, preventing guards from seeing into his cell, and who was acting oddly and had failed to respond to repeated inquiries from guards. According to the evidence, the plaintiff failed to respond to repeated warnings that he was to communicate with the guards, and his failure to do so could lead to use of chemical agents or physical force against him.
[11] Thereafter, officers entered the plaintiff's cell and the plaintiff was pinned beneath the shield bearing officer, while other members of the extraction team sought to handcuff him. Two officers were in possession of batons, instruments regularly issued in cell extractions such as this one, and the plaintiff was struck, though there are some discrepancies as to the number of times the plaintiff was hit.
[12] According to Officer Boucher, the plaintiff was "wrestling quite heavily" while pinned down by the shield-bearing officer. The plaintiff tried to "strike at the officer that was there", Officer Mudjar, resulting, says Officer Boucher, in Officer Mudjar striking the plaintiff once. Officer Boucher admitted that he did not count the number of times the plaintiff was struck. In fact, according to Officer Mudjar's testimony, he struck the plaintiff twice in the chest area, scuffing his hand on the side of the wall while doing so. Officer Anderson recalls the plaintiff resisting being handcuffed, but made no note of this fact in her subsequent report on the extraction. She could not recall whether Officer Mudjar struck the plaintiff, noting that her view was blocked by the other officers. Similarly, Officer Briere testified that his view was obscured by the other officers, but his evidence is that the plaintiff was incapable of resisting much, since he was quickly overwhelmed. Officer Hagen, the shield man, testified that he was so focused on restraining the plaintiff, who was struggling at the time, that he doesn't recall whether the plaintiff was struck. Officer Fengstad testified that when the extraction team entered the cell, the plaintiff came forward aggressively, attempting to strike the officers and continued fighting after he was pinned down with the shield. He indicated that he struck the plaintiff at least once with his baton in the lower abdomen, but did not recall whether Officer Mudjar also hit the plaintiff.
[13] The testimony of the witnesses reveals that the extraction was not videotaped. All but one of the witnesses present at the extraction, who were able to see the course of events, testified that the applicant was stripped no further than his underwear. Officer Mudjar testified, however, that the plaintiff's underwear may have been pulled below his buttocks, though he was somewhat uncertain about this.
[14] Mr. Priestley, the nurse who examined the plaintiff after the extraction, testified that the plaintiff made no complaint of pains in the immediate aftermath of the extraction, other than a sore right lower back. The plaintiff did not complain of having sore ribs, nor did Mr. Priestley observe anything indicating soreness or injury in the nature of a fractured rib. Mr. Priestley did not recall the plaintiff asking for a pen in order to request an appointment to see a doctor, or the plaintiff asking to be put on a list to see the doctor because of having pain in his ribs.
[15] The documentary evidence adduced at trial indicates that the plaintiff did not complain of, and was not diagnosed with, pain in the right side of his chest until late March 1997, almost a year and a half after the cell extraction. Most of this pain at the later date was attributed to muscle strain associated with weight lifting. However, a Radiography Requisition and Report dated September 8, 1997, includes the following observation: "At the posterior margin of the 11th rib there is a small irregularity in the bony contours. Minimally displaced fracture is suspected."
[16] The evidence adduced shows that the plaintiff was held in the strip cell for an unusually long period of time, from December 21, 1995 to February 16, 1996. With respect to personal hygiene products, the plaintiff's evidence, uncontested by the defendant, is that he was denied shaving equipment, a toothbrush and sheets for the duration of his stay in the strip cell. Testimony by Officer Brown suggests that while such goods are normally issued to prisoners in the strip cell, security officers would consult with health care staff to determine how much of a threat the prisoner was to himself in assessing whether to provide such items as toothbrushes to the prisoner. Officer Brown testified that the plaintiff was placed in the strip cell for his own protection, to ensure that he would not harm himself. At the same time, Officer Boucher testified that the plaintiff was not placed and held in the strip cell as part of a suicide watch.
Analysis
[17] The matters said to be here as issue are as follows: whether the Crown is liable to the plaintiff for improperly transferring him to the Saskatchewan facility; whether the Crown is liable for injuries suffered when the plaintiff fell in his cell in September 1995; whether the Crown can be held liable for harm said to stem from the cell extraction, and; whether the plaintiff's unusually long time in the strip cell in the Special Handling Unit gives rise to liability.
[18] The first two issues can be dealt with very briefly. In my view, the issue of whether the involuntary transfer was improper has already been dealt with, by implication, by the plaintiff's challenge to the transfer, brought in July 1995 by way of a Writ of Habeas Corpus Ad Subjiciendum, with Writ of Certiorari in Aid, an application dismissed by the Saskatchewan Court of Queen's Bench. By that decision, the issue of whether the transfer was proper is res judicata. Further, at trial, the plaintiff offered no evidence supporting his claims to have been harmed or to have suffered any loss or damages by reason of the transfer to the Saskatchewan Penitentiary. For these reasons, the loss or damage claimed to have been incurred by reason of the plaintiff's involuntary transfer is not established as a basis for any wrong that would give rise to damages in this action.
[19] As regards the plaintiff's fall in his cell in September, the plaintiff adduced no evidence at trial, expert or otherwise, supporting the view, implied in his statement of claim and described in his affidavit of October 7, 1997 admitted into evidence, but no more than mentioned at trial, that the administration of anti-psychotic drugs was either improper in its own right or was the cause-in-fact of the subsequent head injury, said to have occurred when the plaintiff passed out under the influence of these drugs. In the absence of any evidence, there is no case made out that the defendant should be held liable for this fall.
[20] Turning to the events of December 20, while the point was not specifically dealt with by either party in oral argument before me, the plaintiff's action against the Crown could only be based on section 3 of the Crown Liability and Proceedings Act, R.S.C. 1985, c.C-50 (the "Act"). Paragraph 3(a) provides that:
| 3. The Crown is liable in tort for the damages for which, if it were a private person of full age and capacity, it would be liable |
| (a) in respect of a tort committed by a servant of the Crown; |
Paragraph 3(a) is to be interpreted with reference to s.10, which reads:
| 10. No proceedings lie against the Crown by virtue of paragraph 3(a) in respect of any act or omission of a servant of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or the servant's personal representative. |
[21] Canadian law recognizes no cause of action for a simple breach of statutory duty, except where a statute provides for a civil cause of action in the event of a breach of the duty.1 As a consequence, the failure of the guards to video-tape the proceedings during the extraction operation, as required by administrative policy, is not a basis for a cause of action in damages. In my view, the plaintiff's claim for injury alleged in the course of the cell extraction, must be founded in tort, either in negligence or assault and battery, as required by the Act.
[22] With respect to a cause of action in negligence, there is no doubt that the guards owed a duty of care to the plaintiff. Cullen J., in Abbott v. Canada2, commented as follows on the relationship between guards and prisoners in the law of negligence:
| Inmates are closely and directly affected by actions of guards; they are under the care and control of guards while incarcerated. Although I do not dispute that there are limits on this duty of care, the fact that these individuals are incarcerated does not mean there is no duty of care. Further, guards have discretion to act in various circumstances, however, that discretion cannot be exercised carelessly or unreasonably. As such, I would also accept that |
| there is a sufficient relationship in terms of proximity and neighbourhood to the extent that carelessness by a guard through act(s) or omission(s) would likely cause damage that was reasonably foreseeable. |
[23] Yet, while the guards were obliged not to act in a fashion that put the plaintiff at risk of harm that was reasonably foreseeable, I am not persuaded either that the guards breached the standard of care to be applied in the circumstances of this case or even that the damage alleged by the plaintiff can be attributed to the actions of the guards on December 20, 1995.
On the issue of standard of care, I note s.25 of the Criminal Code, R.S.C. 1985, C-46
| 25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law |
| (a) as a private person, |
| (b) as a peace officer or public officer, |
| (c) in aid of a peace officer or public officer, or |
| (d) by virtue of his office, |
| is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose. |
[24] In Abbott, Mr. Justice Cullen interpreted this section as follows:
| ...subsection (1) provides justification for the actions of the persons listed in paragraphs (a) to (d) if the additional requirements of the subsection are met. The person must be either required or authorized by law to do anything in relation to the administration or enforcement of the law. The requirement or authorization may be found in either statute or common law. In addition, it must also be shown that the person acted on reasonable grounds and used only as much force as was necessary to achieve that purpose. If the actions of the person exceed the scope of activities authorized or required by law or the force used was more than was necessary to achieve that protected purpose, the subsection will not apply to exclude liability.3 |
[25] In light of this section, it is my view that a peace officer can only be said to breach the required standard of care where he or she did not have reasonable grounds to use force or used more force than was necessary to achieve the purpose authorized by law. Section 2 of the Criminal Code defines peace officers as
| (b) a member of the Correctional Service of Canada who is designated as a peace officer pursuant to Part I of the Corrections and Conditional Release Act, and a warden, deputy warden, instructor, keeper, jailer, guard and any other officer or permanent employee of a prison other than a penitentiary as defined in Part I of the Corrections and Conditional Release Act, |
[26] The Corrections and Conditional Release Act, 1992, c. 20, for its part, provides, in s.10 that
| 10. The Commissioner may in writing designate any staff member, either by name or by class, to be a peace officer, and a staff member so designated has all the powers, authority, protection and privileges that a peace officer has by law in respect of |
| (a) an offender subject to a warrant or to an order for long-term supervision; and |
| (b) any person, while the person is in a penitentiary. |
Commissioner's Directive 003 defines as peace officers "Members employed in an penitentiary other than a Community Correctional Centre." On this basis, I conclude that the officers involved in the cell extraction were peace officers within the meaning of s.25 of the Criminal Code.
[27] With respect to Mr. Carlson, I am not persuaded that he has met the burden of showing that there were no reasonable grounds for the use of force in this case, or that the force used in the cell extraction was more than was necessary under the circumstances. While not entirely consistent, the evidence of the witnesses to the events is sufficient, in my view, to support the conclusions that at the time the plaintiff was acting peculiarly, that he did not respond to the efforts of officers to communicate with him, that he resisted the officers, and that some measure of force was necessary to subdue him. The fact that the plaintiff was not charged with an offence for striking or resisting the officers does not establish that the plaintiff offered no resistance. The evidence is conflicting on the number of times the plaintiff was struck and the force used, but I am not persuaded that the plaintiff has demonstrated that the number of times he was struck by the officers was excessive, or that unreasonable force was used in the circumstances.
[28] With regard to damages, it is my view that the plaintiff has not met the burden of showing that actual harm was caused by the action of Corrections staff in the extraction process. That is necessary to ground an action in negligence. In my opinion, the medical evidence of injury to the ribs is not sufficient to show that the actions of the officers in the extraction operation were the cause in fact of the injuries with which the plaintiff was some time later diagnosed. The evidence does not convince me that the healed rib injury identified almost a year and a half after the cell extraction was caused by the events of December 20, 1995, nor am I persuaded, on the evidence, that the plaintiff complained of pain in his ribs or his arm, or that he asked for medical assistance that evening. Moreover, there is no evidence before the Court to lead me to conclude that the plaintiff suffered nervous shock or any other form of injury cognizable at law, either from the force used by the officers, or by reason of the removal of his underwear, a removal that I am not persuaded, on the evidence, actually took place. For these reasons, it is my view that the plaintiff has not made out a case for liability of the defendant in negligence.
[29] Turning to the defendant's possible liability for assault and battery, ordinarily the plaintiff need not prove injury stemming from these intentional torts. In this case, it is my view that, for the reasons given above, s.25 of the Criminal Code applies to preclude any recovery where the officers' actions, are, as I find them, reasonable in the circumstances. Thus, I am not persuaded that there is any basis for holding the defendant liable in tort to the plaintiff either in negligence or for assault and battery, for any harm or loss arising as a result of the cell extraction.
[30] As for the duration of the plaintiff's confinement in the strip cell and the purported conditions under which he was held, it is urged, in the plaintiff's reply to the statement of defence and in oral argument before me, that the nature of this confinement amounted to cruel and unusual punishment in violation of s.12 of the Charter. With respect, I am not persuaded that the plaintiff has met the burden to show that his treatment was cruel and unusual within the meaning of s.12 of the Charter. In R. v. Olson4, the Ontario Court of Appeal noted that the test to be applied in assessing whether treatment is cruel and unusual is the same as that devised by the Supreme Court for cruel and unusual punishment; namely, whether the treatment is so excessive as to outrage standards of decency.
[31] On the evidence, I am not persuaded that the plaintiff was unreasonably refused either exercise or bathing opportunities. The daily logs prepared by Corrections officials suggest that the plaintiff frequently refused showers and exercise, something he did not deny in cross-examination. The evidence is unclear as to what opportunities were afforded the plaintiff to use shaving equipment and a toothbrush during those bathing sessions of which plaintiff did take advantage when offered. The plaintiff has not established, to my satisfaction, that the steps taken by Corrections officers to hold him in a strip cell for a lengthy period of time and to control his access to personal hygiene products, were so excessive as to outrage standards of decency. For these reasons, I find that there was no violation of constitutionally protected rights arising from the confinement of the plaintiff to the strip cell.
[32] At the same time, while the issue was not raised before me, I note that the plaintiff might have claimed for false imprisonment for his lengthy placement in the strip cell. In Abbott, Mr. Justice Cullen found the Crown liable for false imprisonment for wrongfully placing a prisoner in segregation. His Lordship summarized the applicable law as follows:
| Linden in Canadian Tort Law notes at pages 46 and 47 that: |
| Anyone who intentionally confines another person within fixed boundaries is liable for the tort of false imprisonment. This tort protects the interest in freedom from restraint within particular limits. The name is something of a misnomer. Firstly there is no need for any prison to be involved. Although one can certainly imprison someone by incarcerating him behind prison walls, it can also be accomplished in other ways. Secondly, the confinement cannot be "false" in the sense of unreal. The word "false" is intended to impart the notion of unauthorized or wrongful detention. Because this tort is a descendant of the trespass action, no actual loss is required as a pre-requisite of recovery. |
| As the plaintiff is basing his claim on the tort of false imprisonment at common law it is for the plaintiff to show imprisonment by the defendant, however it is the defendant who bears the burden of proving that the imprisonment was justified. In Frey v. Fedorchuk & Stone, [1950] S.C.R. 517, Cartwright J. is reported at page 523 stating that: |
| The claim being one for damages for false imprisonment, in my opinion, the following short passage from Halsbury's Laws of England, Second Edition, Volume 33, page 38 correctly states the law: |
| The gist of the action of false imprisonment is the mere imprisonment; the plaintiff need not prove that the imprisonment was unlawful or malicious, but establishes a prima facie case if he proves that he was imprisoned by the defendant; the onus then lies on the defendant of proving justification.5 |
[33] In the case at bar, the plaintiff has established to my satisfaction that he was placed in a strip cell for a significant and atypical length of time. While evidence of the plaintiff's unusual behaviour and of his propensity for occasional violent action leads me to conclude that Corrections officials had a basis to view Mr. Carlson as a potential threat to himself, or even to others, there may be some question whether the manner in which the plaintiff was held, without sanitary products, was justified. This is particularly the case given evidence that the plaintiff was not on suicide watch. At the same time, in fairness, I am unable to hold the Crown liable for a tort that was not argued before me and to which the defendant was given no opportunity to respond and, in particular, to meet its burden of showing that its actions were justified.
Conclusion
[34] For these reasons, the plaintiff's action is dismissed.
[35] While the plaintiff urged that costs not be awarded against him even in the event he was unsuccessful, I find no reason to vary the traditional rule that costs follow the cause, and the judgment now issued awards costs to the defendant on the usual party and party basis.
Judge
OTTAWA, Ontario
June 1, 1998.
__________________1 See The Queen v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205; Douglas v. Canada (1996), 113 F.T.R. 281.
4 (1987), 62 O.R. (2d) 321 (Ont. C.A.) affirmed [1989] 1 S.C.R. 296.