Date: 20030529
Docket: T-59-01
Citation: 2003 FCT 683
Toronto, Ontario, May 29, 2003
Present: Prothonotary Roger R. Lafrenière
BETWEEN:
JEAN-GUY SAVARD
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an action in civil liability brought by the plaintiff who alleges that he was exposed to hepatitis C and HIV because of the negligence and carelessness of the defendant's agents. The facts are as follows.
[2] When he began this action, the plaintiff was an inmate at the Port-Cartier Institution in Quebec. In February 2000, the plaintiff was summoned to appear before the Court of Quebec in the judicial district of Montréal. As a result of an agreement between the federal and provincial prison authorities, the plaintiff was temporarily detained at the Regional Reception Centre (RRC) in
Ste-Anne-des-Plaines. The RRC is a federal penitentiary under the jurisdiction of the Correctional Service of Canada (CSC).
[3] The plaintiff stayed at the RRC from February to May 18, 2000. During part of that time, a building at the RRC that had individual cells was closed for budgetary reasons. Although the plaintiff had requested an individual cell upon his arrival at the RRC, prison authorities told him that he could not be placed in one at that time because "A" Building was temporarily closed. The plaintiff occupied more than one cell, including the same cell as inmate JPG, between February 24 and March 31, 2000, and inmate TB, on April 13 and 14, 2000.
[4] On April 13, 2000, the plaintiff again asked to be placed in an individual cell. This request was granted by the prison authorities at the RRC on April 15, 2000.
[5] The plaintiff states that at the time of his transfer to the individual cell, he found papers and documents belonging to inmate TB. Among these documents was TB's medical file, which indicated that he was infected with hepatitis C.
[6] It is admitted that some inmates were temporarily "housed" in groups of two in cells normally meant for one person, and that they had to share the same sink, the same toilet, and the same desk. It is also admitted that inmates were given personal hygiene items and utensils that were the same colour for everyone.
[7] On May 10, 2000, the plaintiff demanded that he be screened for hepatitis C, because he said that he had inadvertently or mistakenly used inmate TB's razor and toothbrush. The test was negative. On October 27, 2000, the plaintiff said that he had cut himself with a fellow inmate's razor six months earlier (which brings us back to the period of temporary incarceration at the RRC) and asked that he be screened for HIV; that test was also negative.
[8] The plaintiff says that he has been living with the fear that he was infected by a fellow inmate since his stay at the RRC. Specifically, the plaintiff claims that the defendant is liable for
non-pecuniary damages and for jeopardizing his health and security because of the negligence of her agents during his stay at the RRC. The plaintiff is claiming $30,000 in interest and damages.
Analysis and conclusion
[9] The plaintiff's action in civil liability is based on article 1457 of the Civil Code of Québec. The federal Crown is subject to the law of civil liability as set out in that article of the Code and in the Crown Liability and Proceedings Act. The plaintiff must establish three things: fault by the defendant or her agents, damage suffered by him, and a causal connection between the fault alleged and the damage suffered. The burden of proof in such an action lies on the plaintiff.
[10] With regard to fault, the plaintiff alleges four breaches of duty by the CSC. First, the plaintiff states that the CSC placed him in a double occupancy cell against his wishes and in breach of the Commissioner's Directive on inmate accommodation; second, it failed to inform him about the state of health of his fellow inmate TB; third, it gave identical personal items to all inmates; and fourth, it failed to give him adequate care during his stay at the RRC.
[11] Regarding the double occupancy cell, the evidence established that the RRC is a reception centre for anyone sentenced by the criminal courts in Quebec. Most inmates from international transfers also stay there. The cell capacity of the RRC is therefore dependent on the number of inmates in "reception" mode who are assigned to be there on any given day. This was confirmed by the only witness that was called to testify, Pierre Lachappelle, Unit Manager and Acting Assistant Warden of the RRC.
[12] It is admitted that the plaintiff had asked for an individual cell, but that the CSC and the RRC had no choice but to place the plaintiff in a double occupancy cell, given that one of the buildings at the RRC was closed for budgetary reasons. Many other inmates had to share their cell as a result of this temporary closure. According to the evidence, the plaintiff occupied more than one cell, including one with inmate JPG between February 24 and March 31 and one with inmate TB on April 13 and 14, 2000.
[13] Although the individual cell is the most desirable and the most appropriate form of detention, the double occupancy cell is a temporary reality for some inmates in penal institutions. Paragraph 19 of Commissioner's Directive 550 entitled "Inmate Accommodation" (Directive dated March 29, 1999) sets out certain criteria to consider when placing inmates in a double occupancy cell:
(a) Compatibility
(b) Vulnerability
(c) Predatory/permissive behaviour
(d) Preventive security considerations
(e) Medical information
(f) Criminal profile
(g) Psychological information
[14] The plaintiff states that the CSC failed to correctly assess these criteria, specifically (e) "medical information", and moreover, that no exception had been approved by the Commissioner under paragraph 27 of Directive 550.
[15] According to the evidence, the Commissioner had in fact authorized an exception to the application of Directive 550. That exception was recorded in the documents provided by the plaintiff himself in exhibit AJGS-13 to his affidavit, where it is clearly indicated that the Commissioner had pre-authorized a list of penal institutions that could deviate from the accommodation policy (Directive 550) and had specifically authorized the RRC at Ste-Anne-des-Plaines to use double occupancy cells if necessary. It is evident that the RRC did not require an emergency situation or additional approval of the Commissioner to permit double bunking.
[16] The plaintiff has not succeeded in establishing that the defendant committed a fault in applying the criteria in paragraph 19 of the Directive to his situation. The plaintiff made much of criterion (e) "medical information" and of the fact that the defendant would have had the obligation under that criterion to tell him about the medical condition of his fellow inmate. With respect to criterion (e), I am of the view that the CSC had no obligation to inform the plaintiff about the medical condition of inmate TB, and that doing so would have constituted a breach of
doctor-patient confidentiality and of the protection of inmate TB's personal information. The evidence disclosed that in the CSC only the inmate affected is advised of his or her medical condition. Once advised, it is up to the inmate to tell fellow inmates about the condition, if he or she wishes to.
[17] Counsel for the defendant referred to a recent judgment of the New Brunswick Court of Queen's Bench, dated October 29, 2002, in R. v. Jones[1] which held that a person with hepatitis C, who is charged with aggravated sexual assault, does not have a duty to disclose his illness, because the risk of contracting the disease through sex is low. In this case, the issue is not sex between the plaintiff and his fellow inmate, but a fear of infection from using a toothbrush or a razor belonging to fellow inmate TB. The evidence established that inmates with hepatitis C are not considered a threat to anyone around them and that an inmate, like anyone else, must take the necessary precautions to avoid contracting diseases like hepatitis C or HIV.
[18] If anyone outside of prison were to make the same mistake as the plaintiff-accidentally using the razor of a roommate, brother, husband or wife-there would be no breach of duty in fact or in law. Nor can the defendant here be found liable for the plaintiff's mistake. The plaintiff must assume the risks like any other member of society, even though he is in a correctional setting.
[19] The plaintiff also states that the defendant and her agents gave him personal hygiene items (razor, toothbrush, etc.) and utensils that were the same colour and identical to those belonging to his fellow inmates. There is evidence that, in fact, all inmates in the penal institute in question, whether double bunked or not, were given personal hygiene items and utensils that were the same colour. In addition, notwithstanding the plaintiff's ineffective rebuttals, there is evidence that the inmates had access to written documentation about infectious diseases like hepatitis C and HIV. Each inmate was responsible for the use and storage of personal items, and blame cannot be assigned to the defendant where an inmate has made a mistake in storing or using those items. Mr. Lachapelle also testified that the RRC provided bleach to the inmates to clean and disinfect all personal items. Although the defendant cannot be held civilly liable on this issue, I respectfully suggest that this practice by prison authorities of giving items of the same colour to inmates sharing a cell should be re-evaluated.
[20] Lastly, the plaintiff states that the prison authorities did not provide quality care to him during his stay at the RRC. However, the plaintiff did not adduce any evidence of fault or omission by the defendant regarding the medical care that he received after his requests for screening tests.
[21] Therefore, given the very nature of the RRC, its temporary character and the fluctuation of its cell capacity from day to day because of sentences and transfers, I am of the view that the double bunking was completely legal and justified and that neither the CSC nor the RRC committed a fault against the plaintiff. In the alternative, the plaintiff attempted to prove that the fault on the part of the RRC lay in placing two inmates in cells that were too small to comply with the standards set out by the CSC itself. Photographs of the cell where the plaintiff was detained were submitted into evidence by Mr. Lachapelle, which clearly showed that the cell could accommodate two bunk beds. With respect to the size of the cells, the plaintiff's pleadings refer to current standards, which apply to new buildings, but the RRC was built in 1969 and those standards do not apply in this case.
[22] Since the plaintiff failed to discharge his burden of proving any fault at all on the part of the defendant or her agents, it is not necessary to deal with the causal connection between the faults alleged and the damage suffered. In any event, the plaintiff did not establish any repercussions that could justify an award of damages. There is no doubt that being screened for HIV and hepatitis C was stressful. However, the mere fact that he was afraid of contracting a disease, without anything more, is not enough. Accordingly, I must dismiss the plaintiff's action.
JUDGMENT
The action is dismissed with costs.
"Roger R. Lafrenière"
Prothonotary
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: T-59-01
STYLE OF CAUSE: JEAN-GUY SAVARD
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 1, 2002
REASONS FOR JUDGMENT AND
JUDGMENT BY: Prothonotary Roger R. Lafrenière
DATED: May 29, 2003
APPEARANCES:
Jean-Guy Savard
FOR THE PLAINTIFF
(Representing himself)
Dominique Guimond
Michelle Lavergne
FOR THE DEFENDANT
SOLICITORS OF RECORD:
Jean-Guy Savard
Port-Cartier, Quebec
FOR THE PLAINTIFF
Department of Justice
Montréal, Quebec
FOR THE DEFENDANT
FEDERAL COURT OF CANADA
Date: 20030529
Docket: T-59-01
BETWEEN:
JEAN-GUY SAVARD
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT
AND JUDGMENT
[1] [2002] N.B.J. No. 375, Garnett J.
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