Grenier v. Canada, 2004 FC 132

Date: 20040128

Docket: T-954-01

Citation: 2004 FC 132

BETWEEN:

                                                             DANIEL GRENIER

                                                                                                                                               Plaintiff

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                           Defendant

                                                    REASONS FOR JUDGMENT

RICHARD MORNEAU, PROTHONOTARY:

[1]                This is a simplified action in delictual liability brought by the plaintiff against the defendant following two incidents which occurred on May 29, 1998, and May 12, 1999, respectively, while the plaintiff was an inmate at the maximum security Donnacona Institution.

[2]                These incidents should be addressed separately because their factual bases are different and unrelated.   

[3]                Moreover, given inter alia that the parties first discussed the incident of May 12, 1999, at the hearing, it would be appropriate to tackle this incident first, even if, chronologically, it occurred after the incident of May 29, 1998.

Facts and analysis surrounding the incident of May 12, 1999

[4]         According to the plaintiff, on May 12, 1999, early in the afternoon, the prison authorities suddenly and forcefully entered his cell to illegally seize his radio. For no reason at all, the correctional officers jumped on him and overpowered him, using excessive force and unjustifiably spraying Mace (the equivalent, as I understand it, of pepper spray), while the plaintiff, according to him, was no longer resisting these officers present.

[5]                The Court, however, had evidence other than the plaintiff's account alone to appreciate the exact context of this incident.

[6]                The Court, in effect, had the chance and the opportunity to repeatedly view a videotape of the officers' entry into the plaintiff's cell as well as the words and actions of both parties. Further, the Court heard the testimony of the warden of the maximum security institution where, at the time, the plaintiff was an inmate, namely the Donnacona Institution.

[7]                Although he was not present at the actual scene of the incident, this institution head, Mr. Lemieux, saw the videotape once more in court and was able to testify not only about his understanding of what was taking place but also, and above all, about the circumstances which led his officers to go to the plaintiff's cell to inform him, in person, that they were there to seize or remove his radio.

[8]                With regard to this situation, the plaintiff essentially maintained, first, that he did not at all understand, at the time, why the officers came to his cell to withdraw his radio privilege.

[9]                The plaintiff, however, himself acknowledged in his testimony that he had been, in the preceding days, "[TRANSLATION] annoying" with his radio and that, as a result, he had been warned to turn down the volume. We understand that, in the hours before the officers' intervention in the plaintiff's cell, i.e. on the night of May 11 to May 12, 1999, from midnight to two o'clock in the morning, the plaintiff had repeated the offence by again playing his radio very loudly.

[10]            The evidence shows that later on in the morning of May 12, 1999, the plaintiff received a visit from a correctional supervisor, Mr. Guimond.

[11]            When asked if he remembered the purpose of Mr. Guimond's visit, the plaintiff initially stated that he did not at all remember the reason for this visit. When he was questioned again on this point, the plaintiff then indicated that his conversation with Mr. Guimond concerned his radio. The plaintiff could not, however, remember any more about the actual content of this conversation.

[12]            Mr. Lemieux, in his testimony, related his understanding of the circumstances preceding his officers' intervention.

[13]            Given that Mr. Lemieux is at the head of a penitentiary, his testimony, in particular about the circumstances surrounding May 12, 1999, is sometimes marked by what can only be considered hearsay, i.e. Mr. Lemieux reported what his personnel, including Mr. Guimond, reported to him regarding the plaintiff's use of his radio in the days preceding May 12, 1999. I am, however, of the opinion that Mr. Lemieux's testimony is nevertheless admissible in this case considering that he could not be a witness to everything and that to produce all of the eyewitnesses would be tedious in a simplified action.

[14]            Mr. Lemieux, therefore, testified that on May 10, 1999, it was noted that the plaintiff's radio was blasting. At the briefing on the morning of May 12, 1999, this problem was discussed by Mr. Lemieux and his deputies, including Mr. Guimond. The plaintiff's use of his radio worried prison authorities since it was thought that this could prevent the other inmates from sleeping and resting adequately. As a matter of fact, complaints had already been lodged to this effect. Mr. Lemieux emphasized that if inmates are unable to sleep, this agitates them, which could very well lead them to behaviour that could put the security of the institution in danger. It appears that, in the days surrounding May 12, 1999, there was increased tension between the inmates and the personnel.

[15]            It was therefore agreed that Mr. Guimond would go to talk with the plaintiff on the morning of May 12, 1999, to see if he could get the plaintiff to cooperate by using his radio with more restraint. Mr. Lemieux reported that Mr. Guimond told him that when he approached the plaintiff to this effect, the plaintiff, instead, dismissed him and took the opportunity to raise the volume of his radio.

[16]            This was the setting in which it was decided that the plaintiff's radio would have to be removed.

[17]            The plaintiff maintained, forcefully and vigorously, that the prison authorities, in his view, had other options to removing his radio from him and that these other options should have been used. He emphasized, inter alia, that his radio could have been removed when he left his cell to go for a walk or to go to the shower. The plaintiff also stated that they could have simply cut the power in his cell.

[18]            I cannot accept these allegations by the plaintiff regarding these other supposed solutions. Mr. Lemieux testified, and I accept his argument, that his approach is not to withdraw a privilege from an inmate by proceeding on the sly or at arm's length. Unlike in the United States, it is Canadian practice to try to make the inmate understand, face to face, why a measure is being imposed. According to him, none of the alternative measures proposed by the plaintiff would have met this objective. Cutting the power to the cell would have also affected all of the plaintiff's electrical appliances, while the authorities were seeking to target the problematic object.

[19]            It was therefore decided by Mr. Guimond that they would have to go to the plaintiff's cell to take away his radio.

[20]            The briefing of the officers involved, as well as the course of the seizure, were captured, as mentioned above, on videotape by an employee of the defendant.

[21]            The plaintiff argued that the presence of a camera for filming the entire scene shows that the authorities were surely expecting that there would be trouble upon entering the plaintiff's cell. Again, in this case I think that the plaintiff is on the wrong track with such an approach.

[22]            Mr. Lemieux testified that the camera was used to ensure that clear evidence of the course of the intervention would be available. I understood that this was a standard measure in like circumstances. He noted that his officers were not helmeted or armed in an unusual or extraordinary fashion. With respect to the fact that an officer had a can of pepper spray in his possession, he indicated that it is a normal practice for officers to have such cans on them at all times since a disturbance can break out at any time in a maximum security institution.

[23]            This brings us to the viewing of the videotape that was made.

[24]            We see an officer stating that they were headed to the plaintiff's cell, to remove his radio from him, following Mr. Guimond's request.

[25]            The recording shows that three or four officers headed to the plaintiff's cell.

[26]            I note now that in my view, considering the reasons given above, the officers went to the plaintiff's cell justifiably and not unlawfully.

[27]            These officers did not enter the plaintiff's cell quickly and in full force. Further, contrary to the plaintiff, it is not my view, that they had to knock on the door of the plaintiff's cell before entering it or that they had to request, through the closed door, that the plaintiff give them his radio. Like the warden, I think that in the circumstances the latter measure would have been futile, and might even have complicated matters.

[28]            When the plaintiff's cell door was opened, an officer moved forward to tell the plaintiff, who in the meantime had gotten up from his bed, that they were there to seize his radio.

[29]            Although the sound of the recording is at times difficult to understand, it is apparent to me that the officer addressed the plaintiff respectfully, using an unassertive tone, attitude and language, which encouraged cooperation.

[30]            The plaintiff testified that at that point he did not have any idea of the reasons for the officers' presence, mainly because at the time of this entry, his radio was off. Considering the context of the days and hours preceding this entry, I find this position of the plaintiff stunning to say the least, if not lacking in credibility. In any case, the initial statements made by the officer entering his cell were clearly meant to enlighten the plaintiff about the presence of these officers.

[31]            Once the officers were in the plaintiff's cell, they asked the plaintiff to move to the back of his cell. Mr. Lemieux indicated that the officers had thereby made the usual request that was imperative in similar circumstances so as to provide a safety zone between the officers and the inmate. In my opinion, this request was made correctly.

[32]            Rather than stand back, as requested, the plaintiff, while not assaulting the officers, clearly held his ground and took a few steps toward the officers, all the while stating that his radio would not be seized. I believe that the plaintiff then assumed a rather threatening attitude, as much verbal as non-verbal. It is reasonable to consider that, by his attitude, the plaintiff did not intend to back up and intended to prevent any seizure of his radio.

[33]            In my opinion, from that moment on, the plaintiff himself really began to get himself in trouble. I think, in fact, that the plaintiff should have cooperated and let the officers proceed.

[34]            Faced with this defiant reaction by the plaintiff, the officers then adopted the only attitude that was appropriate to adopt. They closed ranks and again told the plaintiff to move to the back of his cell. One of the officers who had, up to that point, concealed his can of pepper spray (according to Mr. Lemieux, and I accept, this is the normal practice so that the inmate is not provoked when the cell is entered) then clearly pointed the can in the plaintiff's direction and counted to three. The plaintiff, as the incident unfolded, fully maintained his position and refused to back up. What was the plaintiff expecting by such defiance? Asserting his authority over that of the officers, to the knowledge of the other inmates who, by the noise made on the adjacent walls, seemed to understand very well what was going on? If the officers had then retreated and not proceeded to remove the radio, what would their authority have been worth in the future, in the eyes of the plaintiff and the other inmates? Once he had counted to three, the officer holding the can did not use it right away, however, he again told the plaintiff to step back and waited a little longer. The plaintiff still remained defiant.

[35]            It was then that this officer used his can in the plaintiff's direction and that the other officers grabbed the plaintiff to subdue him and handcuff him. The use of pepper spray and the officers' action seem more than reasonable to me. Besides, the officers did not really hit the plaintiff; they simply overpowered him in order to handcuff him.

[36]            The plaintiff, however, strongly maintains that the videotape clearly demonstrates that once he was overpowered, the officer who had initially used the pepper spray can surreptitiously slipped his arm close to the plaintiff and sprayed him again in the face.

[37]            Two points must be mentioned in this respect. In the first place, even presuming that the officer used the pepper spray a second time, I do not believe, if we now look back to that precise moment, that the plaintiff could be considered to be under control and no longer resisting. To the contrary, he was not yet handcuffed and the plaintiff still seemed to be struggling to get up. I consider that it would have been reasonable that the pepper spray was used again. If in fact the pepper spray was used, it could not have been very impressive or effective since the videotape shows the plaintiff standing in another cell shortly thereafter telling off the officers.

[38]            Secondly, the videotape does not clearly show that the officer used his pepper spray when he slipped his arm in to help in the scuffle.

[39]            The plaintiff also objected to the fact that the videotape shows, at the very end, that the officers seized not only his radio but also his television.

[40]            In my opinion, this argument does not stand up.

[41]            It is clear that the officers, upon entering the cell, were only coming to remove the radio so that the inopportune noise would not recur. The television seems to have been, somewhat inadvertently, part of the round-up. In any case, I do not consider that the plaintiff approached this action with the removal of the television as well in mind. This point is not contained in his statement of claim or his affidavit. It is just a minor incident in the interchange between the parties.

[42]            Finally, the plaintiff notes that the next day, May 12, 1999, the warden withdrew the charge that had been laid against the plaintiff following this skirmish. In his testimony, Mr. Lemieux indicated that if he had withdrawn the charge, it was because this document stipulated that the plaintiff had charged at the officers. The viewing of the videotape indicated to him that it could not be said, definitively, that the plaintiff "[TRANSLATION] had charged" his officers. He pointed out, however, that if the charge had been better drafted and if it had instead indicated that the plaintiff had moved aggressively toward the officers, he would not have withdrawn that charge.

[43]            For all of these reasons, I do not think that the defendant via her servants was negligent towards the plaintiff in relation to any aspect of the incident of May 12, 1999.

[44]            Thus, question 2(e) of the order dated August 22, 2003, determining the issues to address at the hearing, issue which reads:

[TRANSLATION]

2(e)          Did the authorities of the C.S.C. commit a fault in relation to the plaintiff in terms of the force used at the time?

must be answered in the negative. Accordingly, the other issues in the same order, which could have merited a response had there been a different answer to issue 2(e), need not be answered. In other words, since there is no finding of fault against the defendant, there cannot be an issue of an award of compensatory or exemplary damages to the plaintiff.

[45]            On the damages aspect, I would simply note the following. To establish the quantum of damages that he is claiming with respect to the incident under review, i.e. $2,000 in compensatory damages and $15,000 in exemplary damages, the plaintiff refers to Bellefleur v. Montréal (Urban Community), [1999] R.R.A. 546, in which such amounts were awarded to a citizen as a result of an intervention by the police.

[46]            The primary facts on which that case was based do not correspond with the situation with which we are concerned.

[47]            In Bellefleur, the Court observes that the police's questioning of a client in a public place was unwarranted and that, faced with his lack of cooperation, the police were not justified in using force against him. In the case at bar, the dynamic at the outset, as we saw, was completely different and it was the plaintiff, by his behaviour and his repeated defiance, who led the officers to intervene.

[48]            Accordingly, even if we could have found fault on the part of the correctional officers, in my opinion the matter of exemplary damages would not have arisen. As for the compensatory damages, they would certainly have been quite limited (approximately $1,000 to $2,000) since I am not under the impression that this intervention by the officers really scarred the plaintiff either physically or psychologically.

[49]            Therefore, we can now turn our attention to the incident of May 29, 1998.

Facts and analysis surrounding the incident of May 29, 1998

[50]       On May 29, 1998, when the plaintiff left his cell to go to a class, a correctional officer, Ms. Lafontaine, advised him that he could not go around wearing slippers and that he would have to return to his cell to change into his shoes. The validity and the reasonableness of this order are not directly challenged here by the plaintiff. However, on May 29, 1998, the plaintiff refused to comply with Ms. Lafontaine's order and continued on his way in a corridor leading to a hub where another officer, while keeping the gate of this hub lowered, told the plaintiff to turn back in the direction of his cell; which the plaintiff did. Approaching his cell, the plaintiff passed several correctional officers in the corridor, including Ms. Lafontaine.

[51]            It was then that the plaintiff made a move that the two parties see under a very different light. Unfortunately, in this case, unlike the incident of May 12, 1999, the Court does not have a videotape to enable it to have a more objective view of the situation.

[52]            If we rely on the plaintiff's version, when he arrived at Ms. Lafontaine's level, he threw down the papers he was holding in the corridor, as a simple gesture of frustration and exasperation, since he thought that they had made him miss a training class which was part of his correctional plan, all on account of some slippers.

[53]            The plaintiff denies that he threw his papers at Ms. Lafontaine or that he intended, by his gesture, to strike her.

[54]            However, this same gesture by the plaintiff, throwing papers, was perceived by Ms. Lafontaine as an attempt by the plaintiff to hit her. In an offence report that she wrote just after the fact, at around 8:30 a.m. on May 29, 1998, Ms. Lafontaine wrote:

[TRANSLATION]

The above-mentioned inmate is reported for having attempted to strike me with his hand, I had to move to dodge the blow.

[55]            In an observation report written a few moments later, Ms. Lafontaine described her perception of the incident as follows. Although Ms. Lafontaine speaks of the plaintiff going to his work, rather than to a class, this fact does not appear to be important in the context of our analysis.

[TRANSLATION]

When coming out for work this morning, the above-mentioned inmate came out in slippers to go to work, I warned him that he had to wear shoes to work; he continued toward the hub; the control officer advised the hub of the situation; the officer (T. Guérin) sent him back to change. When he arrived at the cell block level, he made a backward movement with his hand, as if to hit me; I backed up and everything he had in his hand scattered over the floor in the corridor.

[56]            Another correctional officer (Mr. Bastien), present at the time of this incident, filed an affidavit for the purposes of the merits of this action. He states the following at paragraph 7 of this affidavit:

[TRANSLATION]

After arriving at the level of cell block E, I was waiting, with other COs, for inmate Daniel Grenier. When he was about four feet away from CO Lafontaine, inmate Grenier made a backhand gesture towards her and threw his duotang at her, dropping many papers.

The inmate Grenier was verbally aggressive because the gate allowing access to the cell block sector was closed.

[57]            Therefore, the correctional officers saw a duotang being thrown deliberately towards Ms. Lafontaine; an action that provoked an evasive reaction from her.

[58]            After throwing the duotang, the plaintiff returned to his cell.

[59]            On this day of May 29, 1998, the deputy warden of the institution and interim head, Mr. Lemieux, who was mentioned earlier, was advised of what had happened by the correctional supervisor.

[60]            Mr. Lemieux decided to place the plaintiff in administrative segregation and, to this end, he had the plaintiff brought from his cell an hour later to have him placed, from there, into administrative segregation. At the time of this transfer, another correctional officer (Ms. Rochefort) noted the following:

[TRANSLATION]

When some officers went to go get the inmate GRENIER in G-217, I witnessed what was said concerning officer GISELE LAFONTAINE. I quote "I'll fix it so the goddamned old madwoman is out of here. If I had a life, there are good connections on the outside".

[Quoted here as in the affidavit of Mr. Guérette.]

[61]            Because of the administrative segregation measure taken by institutional head Lemieux, it appears from the evidence that the plaintiff stayed in administrative segregation for a total of 14 days.

[62]            On June 4, 1998, a Segregation Review Board reviewed the plaintiff's segregation situation and recommended that this segregation continue. After meeting the chairperson of this Board and the plaintiff at that time, the institution head, Mr. Lemieux, maintained this segregation.

[63]            In the interim, on June 1, 1998, the plaintiff's unit manager, Mr. Guérette, decided to proceed with the disciplinary process and charged the plaintiff under paragraph 40(m) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, as amended (the Act).

[64]            This paragraph 40(m) states:

[65]            On June 11, 1998, a disciplinary board found the plaintiff guilty of the charge against him and the plaintiff was sentenced to a period of 14 days of punitive dissociation; these days were therefore added to the 14 days that the plaintiff had already spent in administrative segregation. (In terms of the number of days spent in administrative segregation and in punitive dissociation, the Court accepts these figures even though the evidence wavers a little bit in this respect.)

[66]            On September 30, 1999, pursuant to an application for judicial review filed by the plaintiff against this decision by the disciplinary board, dated June 11, 1998, this Court set aside this decision.

[67]            Now, what analysis can be made in this case of this incident of May 29, 1998, and the consequences that it entailed?

[68]            The plaintiff maintains, first, that the fact that he was transferred on May 29, 1998, from the general prison population to administrative segregation amounts to an imprisonment and that the defendant must now justify this confinement in administrative segregation. I agree with the plaintiff regarding this approach.

[69]            In Brandon v. Canada (Correctional Service), [1996] F.C.J. No. 1 (hereinafter Brandon), at paragraphs 12 and 13, it is stated:

[12] In Saint-Jacques v. Canada (Solicitor General), also a matter where the plaintiff, a penitentiary inmate, alleged false imprisonment by reason of confinement in "administrative segregation", Mr. Justice Denault impliedly found that the transfer of an inmate out of general population to a more restrictive environment amounts to "imprisonment". It was acknowledged here that both segregation and dissociation are more restrictive environments than general population imprisonment. I reach the same conclusion here as did Mr. Justice Denault, and I am satisfied that that conclusion is in accordance with other authorities. The onus therefore falls on the defendants to prove justification for the holding of the plaintiff in segregation from June 7 to July 17, 1985 and in dissociation and segregation from January 6 to February 3, 1986.

[13] It was agreed before me that the director of a penitentiary is entitled to order that an inmate be confined in "administrative segregation" (and I take that term to include both segregation and dissociation) if the director is satisfied that the inmate has acted in a manner that jeopardizes the security of the institution or the safety of an inmate and that the inmate should therefore be kept from associating with other inmates. That appears to be the substance of subsection 40(1) of the Regulations quoted earlier . . .

[The citations are omitted.]

[See also the decisions of the Supreme Court in [1950] S.C.R. 517">Frey v. Fedoruk et al., [1950] S.C.R. 517, 523; R. v. Miller, [1985] 2 S.C.R. 613, 641.]

[70]            The plaintiff submits, however, that the defendant did not succeed, in her evidence by affidavit or testimony in Court, in justifying this confinement in administrative segregation.

[71]            I think that, ultimately, the plaintiff is correct about this particular aspect of his case, i.e. the confinement from May 29 to June 11, 1998.

[72]            Mr. Lemieux described in his affidavit the particular circumstances involved in the control and supervision of an inmate population in a maximum security institution. At paragraphs 6 to 10 of his affidavit, he states as follows:

[TRANSLATION]

6.              The prison population of a penal institution like Donnacona, i.e. a maximum security penitentiary is made up of a certain type of population; not only is the prison population of such an institution serving long-term federal sentences, but it requires an exceptional vigilance by the employees of the Correctional Service of Canada because of its behavioural unpredictability and its propensity for violence;

7.              The prison population of inmates of a maximum security institution like Donnacona is made up especially of people having a dangerousness that is out of the ordinary, unlike the prison population found in another type of penal institution;

8.              I have held similar positions in other penal institutions, in particular in medium security penitentiaries;

9.              The degree of vigilance and security appropriate and necessary to a prison population belonging to and residing in a maximum institution differs significantly from another type of prison population residing in another medium and/or minimum security institution;

10.            Accordingly, the reaction time and the margin of error of CSC officers must be analysed in context and the security of these officers as well as of the inmates always underlies any actions by these correctional officers and remains a constant preoccupation in my assessment of the day-to-day work of these correctional officers of the penal institutions that I am called on to manage, particularly in a maximum security institution like Donnacona.

[73]            At paragraph 11 of the same affidavit he adds that, consequently, the plaintiff's act is one that cannot be tolerated in a maximum security institution because it was intentional.

[74]            In his testimony, he added that he perceived the plaintiff's action as an act of defiance and a rejection of prison authority and that this act, from his knowledge of the premises and the schedule usually followed by the inmates in that part of the institution and the inmates' tendency to act on the spur of the moment in a maximum security institution, could very quickly, and thus momentarily, have caused other inmates to act defiantly and disruptively as well.

[75]            According to Mr. Lemieux, the corridor, at the time of the plaintiff's action, would usually be occupied by almost 240 inmates. Any act of defiance could therefore be imitated, snowball, and then rapidly jeopardize the security of the penal institution.

[76]            I am prepared to find that the Ms. Lafontaine's perception of the plaintiff's gesture as well as Mr. Lemieux's perception of the gravity and the seriousness of this gesture were perceptions or conclusions that these persons could draw.

[77]            In response to the plaintiff's gesture, the penal authorities took two measures: placing the plaintiff in administrative segregation for 14 days (from May 29 to June 11, 1998) and charging the plaintiff under paragraph 40(m) of the Act.

[78]            As we will see later on, infra, paragraphs [100] et seq., I do not think that the defendant can be pursued in this action for this charge.

[79]            It is rather the plaintiff's confinement in administrative segregation from May 29 to June 11, 1998, that rubs the wrong way, in my opinion.

[80]            The confinement in administrative segregation cannot be effected in an arbitrary manner and, to this end, it is governed by sections 31 to 37 of the Act. The relevant part of section 31 provides as follows:

[81]            Although we can understand from the evidence that the plaintiff's act jeopardized the security of the penitentiary, the explanations provided by Mr. Lemieux and Mr. Guérette show that this danger arose at the very moment of the act, namely that the other inmates would then act inappropriately and that they would revolt. This did not happen, however, and the plaintiff was even able to get back to his cell among the institution's general population on his own.

[82]            In fact, it was only after an hour that the plaintiff was transferred to administrative segregation. If the plaintiff had to be kept from associating with the rest of the general inmate population within the meaning of subsection 31(1) of the Act, I do not think the plaintiff would have been allowed to go back to his cell for almost an hour.

[83]            In the same vein, it has not been justified to me, in accordance with subsection 31(3) of the Act, that keeping the plaintiff in the general inmate population, after this hour, was likely to jeopardize this security. There is no evidence to show that the plaintiff's gesture was anything more than an isolated act and that keeping him in the general inmate population would again compromise the security of the institution.

[84]            On the other hand, subsection 31(2) of the Act provides that the inmate in administrative segregation must be returned to the general inmate population at the earliest appropriate time. Here again, I do not believe that the authorities have justified their position. From my assessment of the evidence, it appears that it is essentially because of the fact that the plaintiff maintained his version of events that he was kept in administrative segregation. This position of the plaintiff, apart from the fact that it is logical, does not in any way justify, in my opinion, keeping him in administrative segregation. It was raised in the evidence by the defendant that this attitude of the plaintiff indicated that he was at risk of recidivism. Even though I am prepared to recognize that the penal authorities are entitled to a high degree of deference in their assessment of the situation, I do not think that this statement is warranted and supported in this case.

[85]            For these reasons, I agree with the Court in Brandon, supra, paragraph 69 and the Court in Saint-Jacques v. Canada (Solicitor General) (1991), 45 F.T.R. 1, that the defendant did not discharge her burden to persuade the Court that, from May 29 to June 11, 1998, the plaintiff's administrative segregation was warranted. So, for this period, my finding is that the plaintiff was arbitrarily imprisoned. The plaintiff is therefore entitled to compensatory and exemplary damages in this respect.

[86]            As for compensatory damages, the plaintiff, following the Court's approach in Brandon and Saint-Jacques, attributed a value to each day of segregation. In Brandon, the Court, in 1996, had assessed this value at $10 per day. According to the plaintiff, in 2003 dollars, this value should be increased to $30 per day. I think, without necessarily making this a rule for the future, that a value of $20 per day is reasonable. The plaintiff will therefore be entitled to compensatory damages in the amount of $280. In the end, this amount may seem trifling, but as the Court noted in Brandon at paragraph 17, referring to the Court's decision in Saint-Jacques:

It must be borne in mind that if he had not been kept in administrative segregation the plaintiff would not have been at liberty like any law-abiding individual, but would still have been an inmate in a penitentiary.

[87]       However, because of the problems mentioned by the plaintiff in his affidavit and which could be seen as resulting from this segregation period of 14 days, I consider it reasonable to increase this amount to $3,000.

[88]            With respect to the issue of the exemplary damages, the plaintiff referred the Court to Kevin Abbott v. The Queen, a decision dated June 30, 1993, per Cullen J., docket T-1788-87, in which the Court awarded an inmate $10,000 in exemplary damages. According to the plaintiff, in 2003 dollars, this amount should be $20,000. I doubt that the passage of time between 1996 and 2003 warrants such an increase.

[89]            Further, I do not think that case ought to be our guide for the ceiling on the exemplary damages to be awarded in this case.

[90]            The facts in Abbott are very different from ours. In that case, the plaintiff Abbott had been hit by several pellets from a shotgun fired unnecessarily by a penitentiary guard during a melee which occurred inside that penitentiary. However, the plaintiff had apparently not been involved at all in this melee. Once he had been hit by the shot, when he was lying on the ground and not posing the least threat, and when he was hurt, the plaintiff had been sprayed with Mace. Added to that was a ridiculous charge against the plaintiff for carrying a weapon, and a period of segregation.

[91]            At page 77, the Court finds as follows on the exemplary damages:

In keeping with Muldoon J.'s comments in Lebar, the assessment of exemplary damages must be an adequate disapproval of defendant's servants' reprehensible conduct in perpetuating the fabrications relating to the plaintiff's "involvement" in the incident at Collins Bay which resulted in the plaintiff being placed in segregation for a period of about one hundred days, when in fact the CSC report of December 1986 clearly indicated that the plaintiff had no part in the events which occurred. At no time was the plaintiff "chasing guards down the Strip in an attempt to stop the officers from getting to the blocks", nor was he involved in a "conspiracy to overtake the prison", or "take staff hostage" or "murder staff". Further, two months after the CSC report cleared the plaintiff of any involvement in the incident, he was charged with possession of a butter knife.    The charges were then dropped but the plaintiff remained in segregation for an additional 15 days. In my view, there was an oppressive, abuse and deliberate disregard of the plaintiff's right to regain his "conditional liberty and liberation from unlawful imprisonment" and as such the plaintiff is awarded the sum of $10,000 in exemplary damages.

[Emphasis in the original.]

[92]            I think, rather, that the general context of Brandon is closer to ours and that we must determine the amount of exemplary damages to award here in light of that case.

[93]            In Brandon, the Court awarded $3,000 in exemplary damages for 68 days of arbitrary imprisonment. Here, applied mutatis mutandis, we should, in theory, be talking about an amount of $618 or thereabouts for 14 days of segregation. This amount seems ridiculously low to me and I think that, in order to adequately sanction the arbitrariness criticized here, an amount of $2,000 is in order.

[94]            Now, there is a factual situation which also followed the incident of May 29, 1998, that remains to be addressed.

[95]            As mentioned earlier, at paragraph 63, on June 1, 1998, the plaintiff's unit manager, Mr. Guérette, decided to charge the plaintiff under paragraph 40(m) of the Act. Like Mr. Lemieux, Mr. Guérette considered that the plaintiff's gesture was serious and that this gesture qualified as an offence under paragraph 40(m) of the Act. The plaintiff, however, criticizes Mr. Guérette for the fact that he did not check with the officers involved in the incident to see whether the plaintiff had acted in the presence of other inmates.

[96]            On this point, it appears that Mr. Guérette, before invoking paragraph 40(m) of the Act against the plaintiff, consulted the available observation and offence reports, discussed the situation with several of his colleagues as well as relying on his own experience. I do not believe that Mr. Guérette necessarily had to go further and speak to the officers present. At the very least, I do not believe that in failing to do so, he was at fault. Like Mr. Lemieux, Mr. Guérette considered the plaintiff's gesture qualified as an offence under paragraph 40(m) of the Act.

[97]            Second, Mr. Guérette is also criticized for having incorrectly applied section 41 of the Act with respect to the requirement imposed by this section to attempt to resolve the matter informally before issuing a charge. This section 41 reads:

[98]            If we fully grasped the essence of Mr. Guérette's testimony, he did not really lose any time on this aspect because, on June 1, 1998, he was dealing with an incident that had already occurred. I think that on this point Mr. Guérette is wrong. Subsection 41(1) of the Act clearly indicates that the possibility of resolving the matter informally applies to an inmate who "has committed or is committing . . . [an] offence."

[99]            This error by Mr. Guérette could have affected the legality of his decision if this point had been raised on judicial review. However, now we must examine whether this omission constitutes a fault giving rise to liability. I do not think so. Mr. Guérette made an error in good faith. Further, in this case I believe that an even more protective regime applies in favour of the defendant.

[100]        Mr. Guérette was acting as a prosecutor here. Even if he was acting as such in a disciplinary context, I do not see why the instructions of the Supreme Court in Proulx v. Québec (Attorney General), [2001] 3 S.C.R. 9, would not be applicable.

[101]        In that case, the Supreme Court held that, in an action for damages based on prosecutorial misconduct, the plaintiff had to show, among other conditions, that the prosecutor had been motivated by malice or by an improper purpose. On page 31, the Court, on this point, states the following:

As such, a suit for malicious prosecution must be based on more than recklessness or gross negligence. Rather, it requires evidence that reveals a willful and intentional effort on the Crown's part to abuse or distort its proper role within the criminal justice system. In the civil law of Quebec, this is captured by the notion of "intentional fault". The key to a malicious prosecution is malice, but the concept of malice in this context includes prosecutorial conduct that is fueled by an "improper purpose" or, in the words of Lamer J. in Nelles, supra, a purpose "inconsistent with the status of 'minister of justice'" (p. 194).

[102]        From my assessment of the situation, the evidence does not show that Mr. Guérette acted toward the plaintiff with malice or with an improper purpose in the proceedings surrounding the laying of the charge under paragraph 40(m) of the Act.

[103]        It would also be appropriate to comment on the follow-up on this charge in the disciplinary process.

[104]        As mentioned in paragraph 65, on June 11, 1998, a disciplinary board found the accused guilty of the offence charged. As a sentence, the plaintiff had to serve 14 days in segregation on top of the 14 days already spent following Mr. Lemieux's decision to place him in administrative segregation.

[105]        On September 30, 1999, Blais J. of our Court set aside this decision, however: Daniel Grenier v. Canada (Attorney General), September 30, 1999, docket T-1415-98.

[106]        Blais J. concluded (paragraph 24) that the disciplinary board could not have convicted the plaintiff because it did not have before it evidence of the elements of the offence.

[107]        Neither of the parties in this case adduced, before me, the file that was before the disciplinary board, then before Blais J. I am therefore not aware of the evidence or the lack of evidence that Blais J. was able to consider in his determination with respect to the legality of the disciplinary board's decision.

[108]        Since it bears on the legality of a decision in the context of an application for judicial review, this decision in itself cannot be binding on us.

[109]        It can not really guide us, either, since we do not know what evidence was then before the Court.

[110]        Further, it seems that the file was presented before Blais J. in a particular manner since the Court, at paragraphs 12 and 15, appears to refer the plaintiff wearing slippers on May 28, 1998, as an incident in itself. Now we know that simply wearing slippers, although prohibited, was not the act that led the authorities to intervene. (It was the throwing of the duotang and the plaintiff's accompanying gesture which were the substantive facts in the case.)

[111]        In the case at bar, i.e. that of an action, based on the evidence filed before me, by affidavits and orally, I conclude that we cannot find fault in the facts surrounding the laying of the charge.

[112]        Finally, we must note that the 14 days of segregation which followed June 11, 1998, took place because of the sentence imposed by the disciplinary board and not because of the decision to place the plaintiff in administrative segregation as of May 29, 1998. The disciplinary board's decision is a new act in the chain of events coming from an entity that must be seen as separate from the penal authorities. The fact that this decision by the board was set aside by this Court in an application for judicial review of its legality cannot be retroactive and used to fault the defendant. The same approach must be applied to the negative consequences that this finding of guilt had on the plaintiff's correctional record.

[113]        For all of these reasons, the plaintiff's action will be allowed in part, the defendant will be ordered to pay to the plaintiff the amount of $3,000 in compensatory damages with interest in accordance with the applicable provisions of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, and of the Crown Liability and Proceedings Act, R.S.C. (1985), c. C-50, as amended.

[114]        The defendant will further be ordered to pay to the plaintiff the amount of $2,000 in exemplary damages.

[115]        The plaintiff will also be entitled to costs.

[116]        A judgment will be issued accordingly.

                                                                               "Richard Morneau"              

                                                                                        Prothonotary                    

Montréal, Quebec

January 28, 2004

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:                                                                T-954-01

STYLE OF CAUSE: DANIEL GRENIER

                                                                                                 Plaintiff

and

HER MAJESTY THE QUEEN

                                                                                             Defendant

PLACE OF HEARING:                                          Québec, Quebec

DATE OF HEARING:                                            November 25 and 26, 2003

REASONS FOR JUDGMENT BY:                       RICHARD MORNEAU, PROTHONOTARY

DATED:                                                                   January 28, 2004

APPEARANCES:

Julie Gagné                                                                 FOR THE PLAINTIFF

Martin Lamontagne                                                     FOR THE DEFENDANT

SOLICITORS OF RECORD:

Labrecque, Robitaille, Roberge & Asselin                   FOR THE PLAINTIFF

Québec, Quebec

Morris Rosenberg                                                       FOR THE DEFENDANT

Deputy Attorney General of Canada