Date: 20081229
Docket: T-62-06
Citation: 2008 FC 1416
Toronto, Ontario, December 29,
2008
PRESENT: Madam Prothonotary Milczynski
BETWEEN:
BARRY
CARR
Plaintiff
and
HER
MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
The
issues in this action are whether Corrections Services Canada (CSC) has
breached any duty to the Plaintiff, Mr. Barry Carr in respect of the injuries
he suffered while in custody, and if so, what damages might reasonably be
claimed.
[2] For the
reasons set out below, I find in favour of Mr. Carr.
FACTS
[3]
On June 23, 2005, Mr. Carr was assaulted by an unknown assailant
in the Millhaven Assessment Unit (MAU), which is part of the Millhaven
Institution (“Millhaven”), a maximum security federal penitentiary in Bath, Ontario.
Individuals sentenced to federal custody are sent to the MAU to be assessed and
classified as to what security level is appropriate for their prison term and
what penitentiary best matches the inmate’s rehabilitation needs. Therefore,
the inmates in the MAU range from the most violent offenders to those inmates
incarcerated for less serious offences.
[4]
Mr. Carr was 35 years old at the time of the assault and was
serving a three year sentence. He has been imprisoned in the past and was
familiar with the “prison code” for inmates, which are unwritten rules of behavior
among inmates that they are loathe to disobey because of the serious
repercussions that can follow.
[5]
On the evening of the assault, Mr. Carr went to the recreation
area, which has telephones available for inmates. Correctional officers on the
ground do not enter this area because of safety concerns for the officers, but
there is an officer assigned to the observation gallery overlooking the
recreation area.
[6]
Mr. Carr waited in the queue for his turn to use the telephone
for one and a half hours. When a telephone became available and it was Mr.
Carr’s turn, the assailant tried to enter the telephone area at the same time
to use the telephone before Mr. Carr. Profanities were exchanged between Mr.
Carr and the assailant and they bumped shoulders while entering the telephone
area at the same time. The assailant backed off when challenged by Mr. Carr, who
was therefore able to use the available telephone. The assailant remained in
the telephone area, used the next available telephone and finished his
conversation and left before Mr. Carr was done with his conversation. At
the time, Mr. Carr did not consider the confrontation to be serious, and felt
that given the “prison code”, it would have made his status in the prison
“deplorable” had he given up his place in line to use the telephone and
“ratted” to the staff about the situation.
[7]
In order to enter the telephone area from the recreation area
where the inmates wait for telephones to become available, a corrections
officer in a nearby post called the S Control Module, must press a button to
open a barrier separating the two areas. It was revealed during the hearing
that Officer Bill Jugloff was the corrections officer on duty in the S Control
Module at the time of the incident. It was also determined at the hearing that
the button that opens the barrier controlling access to the telephone area is
located on the opposite side to where an officer in the S Control Module could
see the barrier to the telephone area. Consequently, Officer Jugloff had to
turn his back to the telephone area when opening the barrier and thus might not
be able to observe how many inmates entered or what might transpire between
them.
[8]
When Mr. Carr finished his call, he left the telephone area to
find the next inmate in line for the telephone. Mr. Carr returned to the
recreation area. Upon entering the recreation area, he noticed a group of inmates,
and the assailant stepped out from this group and attacked Mr. Carr. The
assailant stabbed Mr. Carr with a knife-like weapon about 12 inches in length.
Five weapons were discovered the day after the assault in the recreation area,
of which one was a weapon fabricated from broken plastic 32 cm in length and
another was 27 cm in length.
[9]
Officer Marshall heard shouting and opened the window. When
Officer Marshall observed the assailant on top of Mr. Carr, he gave a direct
order to the inmates to stop. The assailant immediately ran into the gym area
while Mr. Carr remained on the floor. Mr. Carr was then told by Officer
Marshall to proceed to what is called S Control Barrier and then was escorted
to Health Care. Mr. Carr reported after the assault that it felt like the
assault lasted one or two minutes. The timeline of a videotape that recorded
the area, just out of frame to where the assault took place, indicates that the
assault lasted 38 seconds.
[10]
Mr. Carr received a puncture wound to the left buttock that
required two stitches and other superficial abrasions to his arms. Mr. Carr
testified to having severe pain from the stabbing and claims that he has
suffered from Post Traumatic Stress Disorder (PTSD) as a result of the assault.
Mr. Carr saw three mental health professionals within two years following the
assault and all three testified in court about the impact the assault has had
on Mr. Carr.
[11]
It is important to note that at the time of the assault, it was not
possible to be observing the recreation area at all times for two reasons.
First, the officer in the S Control Module must turn his or her back to press
the button to open or close the barrier to the telephone area. Second, at the
time of the assault there were no cameras in the telephone room and not all
cameras in the recreation area could be monitored at the same time.
LEGISLATION
[12]
The
relevant legislation governing liability against the Crown is found in the Crown
Liability and Proceedings Act, R.S.C. 1985, c. C-50, (CLPA) as follows:
Liability
3. The Crown is liable for the damages for
which, if it were a person, it would be liable
(a) in the Province
of Quebec, in respect of
(i) the damage
caused by the fault of a servant of the Crown, or
(ii) the damage
resulting from the act of a thing in the custody or owned by the Crown or by
the fault of the Crown as custodian or owner; and
(b)
in any other province, in respect of
(i) a tort committed
by a servant of the Crown, or
(ii) a breach of duty
attaching to the ownership, occupation, possession or control of property.
[…]
Liability for acts of
servants
10. No
proceedings lie against the Crown by virtue of subparagraph 3(a)(i) or (b)(i) 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 for
liability against that servant or the servant’s personal representative or
succession.
[13]
The
purpose of the federal corrections system is set out in section 3 of the Corrections
and Conditional Release Act, S.C. 1992, c. 20 (CCRA):
Purpose of correctional system
3. The purpose of the federal correctional system is to
contribute to the maintenance of a just, peaceful and safe society by
(a)
carrying out sentences imposed by courts through the safe and humane custody
and supervision of offenders; and
(b) assisting the rehabilitation of offenders
and their reintegration into the community as law-abiding citizens through the
provision of programs in penitentiaries and in the community.
[14]
Certain
guiding principles in order to achieve the above purpose are found in subsection
4(2) and 4(e) of the CCRA:
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;
(e) that offenders retain the rights and
privileges of all members of society, except those rights and privileges that
are necessarily removed or restricted as a consequence of the sentence;
DISCUSSION
Liability of CSC
[15]
Both
parties agree that CSC owed Mr. Carr a duty to take reasonable care for his
safety while in custody. The
issue is whether the acts or omissions of CSC fall below the standard of
conduct of a reasonable person of ordinary prudence in the circumstances. The question
is whether in the circumstances and on the balance of probabilities, was the
harm to Mr. Carr from other inmates reasonably foreseeable so that CSC knew or
should have known of that risk of danger. (Coumont
v. Canada (Correctional Service), 77 F.T.R. 253, 47 A.C.W.S. (3d) 1196, [1994] F.C.J. No. 655
(QL) at para. 38-39; Miclash v. Canada,
2003 FCT 113, 227 F.T.R. 116, [2003] F.C.J. No. 155
(QL) at para 37; and McLellan
v. Canada (Attorney General), 2005 ABQB 486, 382 A.R. 287, [2005] A.J. No. 784
(QL) at para. 38; Bastarache c. Canada, 2003 FC
1463, 243 F.T.R. 274, 127 A.C.W.S. (3d) 658, [2003] F.C.J. No. 1858 (QL)
at para. 23).
[16]
The
requirement of reasonable foreseeability is satisfied if there are
pre-indicators of violence, that is events or circumstances that make more
likely the possibility of violence. Animosities among inmates or threats of
violence are examples of pre-indicators of violence. An inmate who feels his or
her safety is threatened by such animosity may notify prison officials by
filing an incompatibility report. The definition of “incompatible” is set out
in Commissioner’s Directive 568-07, which states that incompatibles are
“offenders who, for whatever reason or situation, pose a threat to the safety
and well-being of each other and hence may pose a safety risk to the
institution and to others.” A pre-indicator of violence may, however, be
established in other ways.
[17]
While
case law cited by CSC indicates that there is no breach of duty for failure to
prevent a “quick, planned and violent attack” (Hodgin v. Canada (Solicitor
General),
218 N.B.R. (2d) 164, 91 A.C.W.S. (3d) 961, [1999] N.B.J. No. 416 (QL)
(N.B.C.A.) at para. 3), if
pre-indicators of violence exist or if violence is otherwise predictable, then
it is the obligation of the CSC to take reasonable steps to ensure the safety
of the at risk inmate (Coumont, above, at paras. 38-39; Miclash,
above, at para. 37). Given that prisons have an inherent potential for violence
and that CSC cannot be guarantors of the safety of inmates, security measure
need not be perfect nor infallible (Miclash, above, at para. 40; Bastarache,
above, at para. 49). They must, however, be adequate and reasonable (Corner,
at para. 32; Bastarache, above, at para. 49). The circumstances of the
institution and the inmates as well as the existence of pre-indicators are all
relevant in determining the adequacy of supervision and whether the CSC have
fulfilled their obligation (McLellan, at para. 39).
[18]
CSC
argues that in the present case there were no pre-indicators that would alert
the prison staff that violence would occur. Mr. Carr did not know the assailant
and they were not listed as incompatible. The verbal altercation and bumping of
shoulders between the two in the telephone area went unnoticed. Finally, the
attack occurred quickly, 38 seconds, before CSC could act to prevent it. Rather, CSC claims to have taken reasonable measures after
the attack had commenced to protect Mr. Carr and in trying to apprehend the
assailant.
[19]
That
CSC was not aware of an incompatibility between the two inmates, however, is
not determinative of liability. In Miclash, above, the Court found CSC
liable despite there being no incompatibility between the inmates. The Court
stated that undue reliance should not be placed on the fact that two inmates
are not listed as incompatible. The court in McLellan, above, found that
despite the plaintiff being unaware of the animosity, CSC was liable because
there were pre-indicators of violence that CSC should have acted upon.
[20]
That
Mr. Carr did not advise CSC that he feared for his safety does not mean there
were no pre-indicators. In this case, there was animosity between Mr. Carr and
his assailant immediately prior to the assault. Mr. Carr testified that the two
exchanged profanities and that they bumped shoulders when the assailant tried
to push in front of him in the line for the telephones. Mr. Carr’s reasons for
not reporting this incident are understandable. There was no time for him to do
so, and it was not unreasonable for Mr. Carr to assume that the matter would
not escalate further.
[21]
One
of the other guards on duty in the observation gallery overlooking the
recreation area where the assault took place filed an affidavit and testified
at trial. Officer Dustin Marshall testified that the profanities exchanged
between Mr. Carr and the assailant if exchanged outside a prison environment
would not be significant, but may lead to violence if exchanged within a prison
setting. Prison correctional officers are on alert for such verbal outbursts as
indicators of potential violence. Officer Marshall also stated, however, that
he was not within sight or hearing of the initial altercation because the
telephone area is immediately underneath his observation post. Thus, Officer
Marshall’s testimony as to not noticing the verbal altercation between Mr. Carr
and his assailants does not directly contradict Mr. Carr.
[22]
Both
Officer Crisp and Officer Marshall agreed that the correctional officer
stationed at the S Control Module, Officer Bill Jugloff, had the best vantage
point to observe the verbal altercation and bumping of shoulders between Mr.
Carr and the assailant in the telephone area. There was no affidavit by Officer
Jugloff submitted into court; nor was the report that he had written about the
incident. As well, CSC did not call Officer Jugloff to testify. Officer Crisp
only read Officer Jugloff’s report but did not interview him. Without the
benefit of evidence from Officer Jugloff, who would likely have noticed a
verbal altercation and physical contact in the telephone area, I must give
weight to Mr. Carr’s testimony that the first incident in the telephone area
was of sufficient loudness or otherwise noticeable for a correctional officer
in S Control Module to have observed.
[23]
Shortness
of time frame is also not necessarily a bar to liability since correctional
officers who recognize or who ought to recognize pre-indicators of violence
have an obligation to take reasonable steps to intervene and protect the
at-risk inmate. The events in Miclash, above, also occurred in a short
time frame, but CSC was held liable because there were pre-indicators of
violence. In that case, the correctional officer should have noted
pre-indicators of violence and should have taken immediate action to protect
the inmate. In other cases such as Corner, above, where a short time
frame did exclude liability, this was only because there were no
pre-indicators.
[24]
This
current case is not a case where it was a random act of violence without
warning:
there is evidence of pre-indicators of violence. The fact that corrections
officers responded immediately when the assault occurred was too late. CSC had
a duty to take steps to ensure the safety of Mr. Carr once CSC has notice of
the existence of a risk to Mr. Carr’s safety.
[25]
Officer
Marshall stated in his testimony that turnover is high at MAU given that the
average time an inmate stays is from four to six months. Unlike a regular
prison where staff can get acquainted with the inmate population, the staff are
often unable to identify which inmates are more violent. Officer Marshall
agreed that while there are often verbal altercations that do not lead to
violence, he also stated that in such a situation there is “nothing you can do
but be extra vigilant… you just have to make sure that you are watching.”
[26]
Furthermore,
the static security measures in place were inadequate in providing a reasonable
amount of protection for inmates. Use of the five telephones in the institution
is limited because of their scarcity relative to the large prison population.
There is a high demand to use these telephones, as evidenced by the fact that
Mr. Carr waited in line for over an hour to use one. In a prison environment with
inmates who have not yet been classified as warranting minimum, medium, or maximum
security and governed by a prisoner hierarchy, it should have been obvious to
CSC that having prisoners wait around for a telephone would create highly
charged situations where tempers could flare up.
[27]
The
prison officials who testified did not seem to be completely clear on their
approach to this area. Officer Dustin stated his preference for a “one-in,
one-out” rule with regard to the using the telephone area. In her testimony,
however, Officer Crisp stated that the prison has nothing to do with establishing
the procedure for using the telephones and in effect, the inmates regulate
priority of access to the telephones among themselves. She stated that there
is no “one in, one out” rule whereby inmates are only let into the telephone
area if there is a telephone free for them to use. Instead, she suggested that
inmates might obtain priority access to the telephones solely based on their
position in the hierarchy of the inmate population.
[28]
Officer
Crisp also testified that CSC is ultimately unable to control the number of
offenders who go into the telephone area. This lack of control is exacerbated
by the fact that the correctional officer in the S Control Module must turn his
or her back on the entrance to the telephone area in order to press the button
to open and close the barrier. In so doing, the officer is unable to adequately
monitor how many people enter the telephone room at any one time. If more
people enter than there are available telephones, there is the potential for
conflict given the high demand for telephones and lack of surveillance. This
absence of consistent or set policies or procedures for telephone use in
combination with the lack of adequate surveillance of the telephone area is a
breach of the duty of care.
[29]
The
lack of camera surveillance is also an indication of inadequate precautions. At
the time of the first incident between the two inmates in the telephone area,
there was no surveillance camera. Moreover, while there are cameras in the
area of the assault, not all cameras would broadcast to the observation gallery
since there are only three monitors for four cameras. Adequate security would
warrant that an operating camera would broadcast events in the area where the
assault took place to the observation gallery so as to keep correctional
officers informed of potential problems.
[30]
Furthermore,
what is recorded is only that which is shown on the monitor that a correctional
officer in the observation gallery is actually viewing. Thus, in this case,
there is no direct recording of the initial altercation or the assault to aid
in identifying the assailant or what actually occurred. These inadequate static
security features made it incumbent on the CSC to watch for situations of
potential conflict, whether reported or not. This inability to monitor key
areas where inmates are able to move freely in this highly charged environment
is also a breach of the duty of care.
[31]
I
find 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 Mr. Carr.
Damages
[32]
Three mental health professionals interviewed Mr. Carr within two
years after the assault. Mr. Carr was first referred to a psychologist, Dr.
Bryan Cassells, in late August 2005, approximately two months following the
assault, “to address issues arising from being stabbed at MAU in June, 2005 and
concerns regarding community relationships” (Psychological/Psychiatric
Assessment Report dated January 26, 2006). Mr. Carr was also referred to Dr.
Jim Cheston, a contract psychologist with the Bath Institution, for a
“Psychological Risk Assessment Update” for his parole officer. Mr. Carr was
referred to a psychiatrist, Dr. Mikhail Epelbaum, because he was released from
prison on parole without a supply of medication and needed an assessment for
the purposes of treatment during his stay in Hamilton, Ontario on parole. Dr.
Epelbaum was accepted as an expert in psychiatry.
[33]
All three mental health professionals testified in Court and
provided reports finding that Mr. Carr suffered from post traumatic stress
disorder. They were unanimous in attributing the assault to Mr. Carr’s symptoms
of PTSD. Mr. Carr also testified in court about the impact on him mentally. I
found all of these witnesses to be credible and their reports and testimony
establish on the balance of probabilities that Mr. Carr suffers from PTSD as a
result of the assault (See Blackwater v. Plint, [2005] S.C.J. No. 59,
2005 SCC 58 at para. 78).
[34]
I find that Mr. Carr did not overstate the impact of the assault
and his PTSD symptoms to the Court. The reports from the three mental health
professionals suggest Mr. Carr worked to address the on-going difficulties he
was experiencing after the assault, thereby mitigating his anxiety,
sleep-disturbances, flashbacks and his functioning in the prison community. In
fact, through psychological counseling, Mr. Carr has made progress to
understand how his reaction to traumatic experiences in general has caused
difficulties for him in the past.
[35]
At trial, CSC suggested there was no proof for Mr. Carr’s claim
of “on-going pain and suffering as a result of the assault”, or a claim for
PTSD as a result of the assault. CSC pointed to three areas that negated Mr.
Carr’s claims. One, CSC argued that Mr. Carr had not consulted with the mental
health professionals for PTSD specifically. Two, that there was a lack of a
formal diagnosis of PTSD according to the fourth edition of the Diagnostic and
Statistical Manual of Mental Disorders (DSM IV). Three, that previous traumas
in Mr. Carr’s life were the cause for the symptoms that he claimed were PTSD
and that it would be too difficult to differentiate the cause of these symptoms
for the purposes of assessing damages. I reject these arguments.
[36]
First, despite Mr. Carr being referred to all three mental health
professionals for different purposes, the impact of the assault was a central
issue that came up in each interview with Mr. Carr. Dr. Cheston examined Mr.
Carr to evaluate the likelihood of recidivism and to conduct other evaluations
consistent with release from penitentiary. Dr. Epelbaum was following up on Mr.
Carr’s post-release medication use, which was initially prescribed following
the assault. Despite the different purposes for the interviews with Dr.
Epelbaum and Dr. Cheston, it is significant that the impact of the assault
featured prominently and the need to address the presenting symptoms of PTSD.
These considerations support the legitimacy of Mr. Carr’s PTSD claims because it
is realistic for his symptoms of PTSD to exist among many differing concerns
and challenges.
[37]
Dr. Cassels was specifically seen by Mr. Carr because of the
difficulties he was having after the assault. His comments demonstrate the
detrimental impact the assault was having on Mr. Carr’s ability to function
daily in the prison community:
“[…] When we started counseling
with Mr. Carr, his sleeping was severely disrupted. He was experiencing
nightmares, flashbacks and those sorts of things. Other than working out and
going for some meals, he was virtually doing nothing but hiding out in his cell
and occupying himself with activities that would just help him escape from the
day-to-day, humdrum situation, and any memories he might have had of the events
at Millhaven.”
[38]
Yet, CSC contended that the lack of a formal diagnosis of PTSD and
insufficient evidence that treatment was oriented to the on-going pain and
suffering from the assault meant that the Mr. Carr’s claims were unfounded. I
have difficulty with this argument. The expectation that evidence of mental
illness comes to the courtroom without co morbid factors (which will be
discussed below), and with a clean and unqualified rigid diagnosis is not
realistic or fair to claimants. The three mental health professionals were
convincing that a less than formal approach does not in any way suggest that
their findings of PTSD are incorrect.
[39]
Second, in any case, that there was a lack of formal diagnosis of PTSD
is not evident. CSC contended that the lack of an investigation for malingering
was a crucial element of a PTSD diagnosis that Dr. Epelbaum failed to perform.
I accept, however, Dr. Epelbaum’s expert testimony that the fact that the
assault happened satisfied him that the claims relating to PTSD were legitimate.
Dr. Epelbaum made his diagnosis of PTSD on the basis of his clinical interview
with Mr. Carr. Furthermore, the symptoms of Mr. Carr and their improvement
with treatment are in keeping with the normal diminishing over time of symptoms
associated with chronic PTSD. Mr. Carr’s gradual improvement is shown by the
fact that he was prescribed medication in the aftermath of the assault, but Dr.
Epelbaum felt that Mr. Carr’s improved ability to cope with the PTSD was
sufficient enough as to merit trying to discontinue medication.
[40]
Finally, CSC argued that Mr. Carr’s anxiety symptoms may have partially
been the result of previous traumas and incidents This argument suggests that
claimants with previous traumas and mental illness could be precluded from
damages related to PTSD because the differentiation of symptoms is difficult.
This is an undesirable outcome. Symptoms must be differentiated to the best of
the court’s ability. Additionally, there were symptoms of Mr. Carr’s that could
easily be attributed directly to the assault, such as, the nightmares, the
flashbacks, the anxiety of being in large crowds and the inability to cope
generally day to day following the assault.
[41]
The Supreme Court of Canada in Blackwater v. Plint, above, set
out how to assess damages when a plaintiff has suffered earlier traumas. Chief
Justice Beverly McLachlin stated at paragraphs 78-81:
It is important to distinguish
between causation as the source of the loss and the rules of damage assessment
in tort. The rules of causation consider generally whether “but for” the
defendant’s acts, the plaintiff’s damages would have been incurred on a balance
of probabilities. Even though there may be several tortuous and non-tortious
causes of injury, so long as the defendant’s act is a cause of the plaintiff’s
damage, the defendant’s is fully liable for that damage. The rules of damages
then consider what the original position of the Plaintiff would have been. The
governing principle is that the defendant need not put the plaintiff in a
better position than his original position and should not compensate the
plaintiff for any damages he would have suffered anyway: Athey. […]
At the same time, the defendant
takes his victim as he finds him - the thin skull rule.
[…]
[42]
Mr. Carr has a history of traumas and related anxieties pre-dating the
assault. The thin skull rule normally means that a defendant will have to
compensate more in damages where an individual or group was impacted more
seriously because of their pre-existing vulnerability. Despite the
psychologically difficult prison environment, Mr. Carr responded to treatment
and learned better coping mechanisms that will hopefully assist him in the
future. The intent of a damages award is to return a plaintiff to the position
had the assault never occurred. In Mr. Carr’s case, his treatment seems to have
been quite effective to help reaching this goal so that Dr. Epelbaum, almost
two years later, found the elements of PTSD to be mild.
[43]
Mr. Carr has not shown that his past traumas impeded his recovery. To
his credit, he appears to have used the difficulties from the assault as an
opportunity to learn more positive responses to challenges in his life. This
does not suggest that earlier traumas did not make the period after the assault
particularly painful and difficult. Even though it was clear that Mr. Carr
needed mental health assistance as soon as possible following such a terrifying
event, Mr. Carr did not see a mental health professional until two months
following the assault. There is no mention of his emotional state in the CSC
medical report following the assault despite the psychological impact being
more detrimental and devastating than the physical scars. CSC contributed to
further damages when they were not alive to the possibility that Mr. Carr would
experience PTSD symptoms that needed immediate assistance.
[44]
Counsel for both parties argued various CSC cases of negligence
damages that I have considered. I do find, therefore, that Mr. Carr is entitled
to $12,000.00 exclusive of costs for pain and suffering and for damages as he
continues to deal with symptoms of PTSD, albeit mild at this point.
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