Date: 1999
Docket: T-369-96
MONTRÉAL, QUEBEC, THE DAY OF 1999
Present: RICHARD MORNEAU, PROTHONOTARY
Between:
ALLAN J. LÉGÈRE
Plaintiff
AND
HER MAJESTY THE QUEEN
Defendant
JUDGMENT
The plaintiff"s action is dismissed with costs.
Prothonotary
Certified true translation
M. Iveson
Date: 1999
Docket: T-369-96
Between:
ALLAN J. LÉGÈRE
Plaintiff
AND
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT
RICHARD MORNEAU, PROTHONOTARY:
Introduction
[1] The plaintiff was attacked by a fellow inmate1 who stabbed him several times with a homemade weapon at approximately 1:15 p.m. on November 27, 1994, in the exterior yard for the inmates of cell ranges 2A and 2B of the special handling unit at the Sainte-Anne-des-Plaines penitentiary.
[2] As a result of this attack, the plaintiff brought the instant action for $30,000 in damages against the defendant.
[3] The plaintiff essentially accuses the prison authorities of being negligent in their established duty to ensure the safety of the inmates, by failing to take appropriate action, after a verbal discussion between the plaintiff and his fellow inmate, to prevent them from meeting again as they did in the exterior yard that same day.2
Facts and analysis
[4] For the purposes of my analysis of the evidence, I accept the following material facts.
[5] On the morning of November 27, 1994, an officer in the control room for ranges 2A and 2B authorized the fellow inmate from range 2A to go to the plaintiff"s range, range 2B, in order, according to the defendant, to retrieve a mop left in that range.
[6] Although the plaintiff alleges that a person by the name of Rivest opened the door of the range for the fellow inmate, I find that it cannot be precisely determined from the evidence which correctional officer did so. In any event, I have no reason to doubt that it was in fact to allow the fellow inmate to get the mop that the authorities authorized him to enter range 2B. I therefore cannot agree with the plaintiff that there was no mop in range 2B or, presumably, that the fellow inmate did not leave range 2B with a mop. The plaintiff was in his cell and although there was a window in the door of his cell, it was not established that at all relevant times, the plaintiff had a full view of all of range 2B. I also find that although it was not standard practice, the prison authorities did not violate a standing order or directive in effect at the time, nor were they negligent3 in their duty to ensure safety by authorizing the fellow inmate from range 2A to enter range 2B.
[7] According to the plaintiff, after the fellow inmate entered range 2B, he went to the plaintiff"s cell and ordered him to turn down the volume on his radio while shouting and hitting the plaintiff"s cell door. At the time, in theory, none of the defendant"s employees could hear what was said at the plaintiff"s cell. There is in fact no evidence that any member of the defendant"s staff heard exactly what the plaintiff and the fellow inmate may have said to each other or even saw the fellow inmate speaking to the plaintiff. We must therefore conclude that only the plaintiff and the fellow inmate have personal knowledge of what was said, as well as the tone and manner of the exchange.
[8] According to the plaintiff"s testimony, it was clear in his mind that if the door of his cell had not been locked at the time, the verbal exchange or dispute between him and the fellow inmate would have immediately become a physical altercation.
[9] That being said, on the same morning the verbal exchange took place, the plaintiff mentioned the incident to the prison authorities, but only to inquire why the fellow inmate had been in the plaintiff"s range. The evidence indicates that during this discussion with the prison authorities, the plaintiff never specifically told them what his fellow inmate had said to him or whether the fellow inmate had threatened him. In fact, even during his testimony in court, the plaintiff refused to reveal whether the fellow prisoner actually threatened him at that time.
[10] The plaintiff also did not ask during this discussion that he or the fellow inmate be placed in administrative segregation or that any other measure be taken to prevent them from meeting. It should be noted, however, that the plaintiff well knew that if they met in one of the common areas for ranges 2A and 2B, he and the fellow inmate would come to blows. It should therefore be noted that at all relevant times, the plaintiff was never willing to complain about the fellow inmate. This attitude of the plaintiff"s, which may be due to his fear of or respect for the fellow inmate, was also clear in court in the plaintiff"s refusal to testify whether the fellow inmate had threatened him and in his request not to use the fellow inmate"s name in the instant judgment.
[11] In light of what the plaintiff told them on the morning of November 27, 1994, the prison authorities did not take any measures against the fellow inmate to prevent him from being in the courtyard at about 1:15 p.m. on November 27, 1994, when the plaintiff also entered the yard. Once again, I cannot regard the fact that measures were not taken against the fellow inmate as constituting negligence or a breach of duty on the part of the defendant.
[12] As previously indicated, apart from the fellow inmate, only the plaintiff knew exactly what was said and the tone which was used on the morning of November 27. However, when he spoke to the prison authorities about the incident, specifically someone by the name of Daniel Marchand, who was acting as senior security officer of the special handling unit at that time, the plaintiff apparently simply inquired " through another inmate " why the fellow inmate was in the plaintiff"s range. At best, the plaintiff may have stated at that time that he and the fellow inmate had had words. The evidence indicates that verbal disputes between inmates are common in the special handling unit, which is known as the "prison of prisons", and that without any other aggravating factor, there was no reason for the authorities to take any preventive measures.
[13] In oral argument, the plaintiff cited as an aggravating factor the fact that the evidence indicated that on November 27, 1994, there were already two incidents of stabbings of other inmates in the fellow inmate"s file. According to the plaintiff, the authorities should have been aware of the fellow inmate"s past and this established fact was enough to make the authorities realize that the verbal exchange between the fellow inmate and the plaintiff was liable to lead to an altercation.
[14] I do not agree.
[15] The evidence indicates that all of the inmates in the special handling unit have a violent past, which is the reason they are in the unit. The evidence did not indicate that the fellow inmate"s personality was that of an inmate for whom a knife fight is inevitable when he has an aggressive verbal exchange with another inmate. In fact, there is nothing in the evidence adduced at the hearing about the circumstances surrounding the fellow inmate"s previous altercations. There is nothing in the evidence to indicate that a mere verbal confrontation with either of those inmates led the fellow inmate to attack them.
[16] Furthermore, on the morning of November 27, 1994, the plaintiff and the fellow inmate were not known as adversaries and I find that the information provided by the plaintiff to the authorities on the day of the incident was not the kind of information which would induce the authorities to call the plaintiff and the fellow inmate adversaries.
[17] The plaintiff also submits that following the incident of that morning, the prison authorities should have searched the fellow inmate. The plaintiff feels that this would have enabled them to catch the fellow inmate with the weapon he intended to use during the impending altercation with the plaintiff.
[18] In my view, this argument is not sound.
[19] First, the prison authorities were justified in not paying particular attention to the fellow inmate on the morning of November 27, 1994, in light of what the plaintiff told them.
[20] Second, there is nothing to suggest that by searching the fellow inmate at any time before he entered the courtyard, the authorities would have been able to confiscate the weapon used in the attack, because the evidence did not indicate precisely when the fellow inmate obtained this weapon. We cannot therefore exclude the possibility that the fellow inmate obtained the weapon after he entered the courtyard.
[21] Although the altercation between the two combatants lasted only a few moments, the evidence indicates that just after he entered the courtyard and before the fight, the plaintiff saw the fellow inmate a good distance away. If the plaintiff had wanted to avoid a confrontation with the fellow inmate at that time, he could have pressed an intercom button to ask the guard monitoring the courtyard to allow him to go back inside. Instead of withdrawing, the plaintiff chose to go further into the courtyard and, after noticing the fellow inmate, took off his coat or jacket in preparation for the impending confrontation.
[22] The altercation between the plaintiff and the fellow inmate was brief and ended after an armed guard ordered them to stop fighting.
[23] The courtyard was then cleared. The plaintiff"s testimony indicates that he was the last to be removed from the courtyard. If I clearly understand the argument of the plaintiff and his counsel on this point, they claim that this delay in removing the plaintiff constitutes negligence by the prison authorities. They also claim this negligence prolonged the plaintiff"s suffering and accordingly justifies part of the damages claimed by the plaintiff.
[24] The evidence did not, however, establish all of the circumstances surrounding the clearing of the courtyard and, based on the limited information available, I cannot conclude whether the plaintiff was deliberately or negligently removed last.
[25] After he was removed, the plaintiff was taken to the health care unit of the penitentiary and then to a regional hospital where his injuries were more fully treated and where his cuts were sutured as required.
Conclusions
[26] For all of the preceding reasons, I find that the prison authorities, and therefore the defendant, are not liable for negligence in their duty to ensure the plaintiff"s safety. Specifically, I find that the authorities were not negligent in failing to take the appropriate steps to prevent the plaintiff from meeting the fellow inmate again on the day of the incident or to avoid such a meeting. Similarly, I find that the defendant did not violate the plaintiff"s rights under the Canadian Charter of Rights and Freedoms .
[27] In light of this conclusion, I do not specifically have to consider the quantum of damages sought by the plaintiff as a result of the assault. However, even had I been able to find the defendant negligent and liable for damages, I would have awarded the plaintiff an amount only for the pain, suffering and inconvenience he suffered in the assault. This amount would have been much less than the $30 000 claimed, as I believe that the plaintiff did not adduce probative evidence to establish the other heads of damages.
[28] The plaintiff"s action will accordingly be dismissed with costs.
Prothonotary
MONTRÉAL, QUEBEC
1999
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OR RECORD
COURT FILE NO.:
STYLE OF CAUSE:
T-369-96
ALLAN J. LÉGÈRE
Plaintiff
AND
HER MAJESTY THE QUEEN
Defendant
PLACE OF HEARING:Montréal, Quebec
DATE OF HEARING:January 21, 1999
REASONS FOR JUDGMENT OF RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR JUDGMENT:March , 1999
APPEARANCES:
Gérald Danis for the plaintiff
Éric Lafrenière for the defendant
SOLICITORS OF RECORD:
Bourgeois & Danis for the plaintiff
Gérald Danis
Lorraine, Quebec
Morris Rosenberg for the defendant
Deputy Attorney General of Canada
__________________1At the plaintiff"s request, the name of this fellow inmate will not be mentioned in the instant judgment, even though this fellow inmate"s name was used frequently in the proceedings and the hearing before this Court. The Court agreed to this extraordinary measure in the hope that it would help the plaintiff avoid further altercations with this or other fellow inmates. Henceforth, the inmate who assaulted the plaintiff will accordingly be simply referred to as the "fellow inmate".
2This yard is known and henceforth will be referred to as the "courtyard".
3Although the plaintiff framed the legal debate in the case at bar in common law terms, I believe, as does the defendant, that because the facts of the action occurred in Quebec, the debate must be framed in terms of negligence resulting in damages. In any event, I do not believe that this distinction affects the final conclusion to be drawn in the least.