Date: 20000107
Docket: T-2802-92
BETWEEN :
BRYAN R. LATHAM
Plaintiff
-and-
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
DUBÉ J :
[1] By this action the plaintiff seeks damages from the defendant on the ground of false imprisonment. The basic issue is whether, subsequent to a policy decision of the Correctional Service of Canada which affected the Saskatchewan Penitentiary in the late 1980's, the penitentiary authorities forced the plaintiff to reside in a dissociated area away from the general population, thus constituting false imprisonment and contrary to sections 7, 9 and 12 of the Canadian Charter of Rights and Freedoms.
1. Agreed Facts
[2] On September 22, 1986, the plaintiff, then 38 years of age, pleaded guilty to a charge that on March 17, 1985, in Winnipeg, Manitoba, while released on mandatory supervision in the course of serving a 12 year sentence for rape and other offences, he committed a sexual assault upon his 15 year old step-daughter using a knife. He was sentenced on May 20, 1987, to detention in a penitentiary for an indeterminate period as a dangerous offender.
[3] He was first incarcerated at Stony Mountain Institution in Winnipeg, a multi-level general population penitentiary which provided for a range of security levels. On June 22, 1987, he was transferred to the Saskatchewan Penitentiary. At all times material to this action he remained incarcerated there. At that time, the Saskatchewan Penitentiary was designated as a "multi-level protective custody institution". There were approximately 430 cells for housing inmates and about 60% of its population were protective custody or special needs inmates while the remainder were general population inmates.
[4] At the time of his transfer to the Saskatchewan Penitentiary, the plaintiff was placed with the open population and no particular arrangements were made or required to protect him from other inmates. He had his own cell and was permitted to have personal effects including a radio, television and typewriter and was able to attend courses, exercise and work.
[5] As a result of an initiative applied through the Correctional Service of Canada, the Warden of the Saskatchewan Penitentiary met with the Inmate Committee in the fall of 1987 to advise them that the penitentiary would be converted or integrated into a general population prison over time.
[6] Between June 22, 1987, and December 1988, the plaintiff was in the "open-population" within the Saskatchewan Penitentiary. During the integration transition period there was a small number of protective custody inmates who chose not to integrate into the general population. These inmates were temporarily accommodated on a self-contained range consisting of 22 cells.
[7] In December 1988, the plaintiff reported that he had been assaulted by another inmate three weeks earlier. As a result, a security report was completed to review the plaintiff's safety situation and thereafter he was moved to the self-contained range discussed above. This came about as a result of the plaintiff's own request. From this self-contained range the plaintiff continued at his job as a "hobby clerk" until February 1989.
[8] In March 1989, the segregation unit in which the plaintiff was placed was required for other purposes and, along with other inmates in the same situation, he was offered the choice of integrating into the general population or moving into the segregation area of the penitentiary. The plaintiff and some of the others requested to be segregated.
[9] During the late 1988 and early 1989, senior officials at the penitentiary concluded that the plaintiff and other inmates in the segregation area could successfully integrate into the general population. Consequently, the plaintiff was ordered on March 21, 1989, to move into the general population.
[10] The plaintiff refused the order, was charged with an offence and fined $15.00. This fine was grieved and following a judicial review before this Court, the charge was dropped. Initially, while the plaintiff was in segregation following the March 21, 1989 incident, he was deprived of amenities, such as his television, in an effort to motivate him to move into the general population. He grieved that decision and it was upheld by the Deputy Commissioner of Correction. It was ordered that a television be provided to him by June 30, 1989.
[11] The plaintiff's segregation status was reviewed as a matter of policy every thirty days. In any case, as the plaintiff had voluntarily committed himself to segregation he could have, on request, released himself to the general population at any time. As a result of the over crowding of the segregation area, the plaintiff was eventually required to double bunk. The plaintiff complained and refused to double bunk in a cell with another prisoner who was too large and would not double bunk with other prisoners, given that some of them were predators.
[12] Consequently, on July 27, 1989, the plaintiff was moved into the Dissociation Area which had cells with single bunks. The plaintiff considered himself to be in "deep segregation" in that area.
[13] As a further need for space within the penitentiary arose, the plaintiff was moved to the "orientation range" on August 23, 1989. The conditions on this range were the same as those in the general population. On September 26, 1989, he was transferred to the Regional Psychiatric Centre, Saskatoon, and on April 24, 1990, to the Kingston Penitentiary.
2. Evidence at Trial
[14] At the hearing, the plaintiff expressed the fear that as a known sexual offender, he was a natural target for inmates who were predators and was therefore afraid to join the general population. He dwelt on two particular incidents which further increased his concern. The first occurred at Stony Mountain, where he was classified as a "protective custody" inmate before he was transferred to the Saskatchewan Penitentiary. During that period, or in October 1982, 35 inmates created a hostage incident and surrounded his cell. Five hostage takers "came for him", as they had access to his cell. One of them was carrying a knife. However, the plaintiff was not physically attacked.
[15] The second incident took place in November 1988 at the Saskatchewan Penitentiary while he was playing cards. An inmate hit him on the neck from behind with a steel plate inside his hand. However, the plaintiff waited three weeks to report the incident to the authorities. He explained that he waited because the attackers informed him that "it was over". There is no report for that attack on file at the penitentiary. No other evidence was adduced by the plaintiff to support the assault in question.
[16] The plaintiff testified that, as a result of his fears and those two incidents, he now suffers from Post-Traumatic Stress Disorder. A psychologist and a psychiatrist filed their respective reports and testified at the trial on this matter.
[17] In short, the plaintiff said that he thought his life would be in danger if he joined the general population in the penitentiary and therefore sought segregation for his own protection. He did not accept the new policy proposed by the authorities and refused to join the general population, for which he was penalized. He was still obviously angry at the decision to abolish the segregation.
[18] William Peet who was at the time Deputy Warden at the penitentiary explained how, as a result of a general policy initiative applied throughout the Correctional Service of Canada, protective custody institutions were gradually converted to general population institutions. It was his mandate to implement the change.
[19] According to Mr. Peet, in the Saskatchewan Penitentiary, as in other penitentiaries, predators are involved in power, culture, gambling, drug, money, control of the canteen and prey upon weaker inmates. The penitentiary power shifts constantly as inmates depart and others arrive. The assaults between inmates are mostly verbal in the form of threats. The policy is to integrate inmates into the general population and to identify and isolate the predators. Most of the inmates accepted the new policy but those who refused were accommodated separately in specific range cells. As the plaintiff had refused to join the general population, some of his amenities including television, writing material, etc. were taken away to induce him to come out. These articles were returned to him following his successful grievance. The plaintiff was never deprived of his right to exercise. He could have left his cell at any time to join the general population. As Deputy Warden, Mr. Peet was not informed at the time of any physical assault upon the plaintiff and he was adjudged to be a candidate for the general population. The plaintiff was not involved in drug, gambling, or struggles for power. He was not considered to be in need of special protection.
3. Expert Evidence
[20] Dr. Karen C. Smith, a registered psychologist, assessed the plaintiff in 1994 and again in June 1999. In her opinion, the plaintiff "did suffer significant psychological damage as a result of the situations which occurred during his incarceration in Saskatchewan Penitentiary from 1988-89". The damage would be in terms of having "the symptoms of a Post-Traumatic Stress Disorder". His current symptoms are "still consistent with a diagnosis of PTSD and his disorder is in the moderate to severe range". She suggested that the plaintiff receive counselling as soon as possible.
[21] Dr. Stephen J. Hucker is a psychiatrist, a professor and head at the Division of Forensic Psychiatry at McMaster University. From his examination of the plaintiff, he is "not convinced that there is any clear degree of disability deriving from the experiences that he describes". His main reason for questioning this is the high possibility of malingered symptomatology in the context of this litigation. He noted that during the course of his conversation with the plaintiff, the later informed him that he had read extensively about traumatic experiences. He even showed Dr. Hucker a copy of Dr. Judith Herman's Trauma and Recovery. From his reading, the plaintiff informed him that he believed he had all the symptoms of Post-Traumatic Stress Disorder. In Dr. Hucker's opinion, the plaintiff showed evidence of a severe personality disorder with mixed features.
[22] In his oral evidence, Dr. Hucker noted the plaintiff's resentment of authority and anger towards other persons. In his opinion, the two incidents, first the hostage incident in Stony Mountain in 1982 and the blow on his neck six years later in the Saskatchewan Penitentiary were not catalysts sufficient to trigger a Post Traumatic Stress Disorder. Such a disorder, as described by Dr. Smith, could only be caused by a catastrophic event that would create abject terror. If the plaintiff would indeed be suffering all the symptoms he described to Dr. Smith, he would be a "basket case", which of course is not the situation.
[23] In answer to a direct question, Dr. Hucker answered that, in his view, the plaintiff does not in fact fear for his life.
4. Analysis
[24] I cannot find that the plaintiff has established that he was a victim of false imprisonment. False imprisonment is the deprivation of freedom against one's will. He was already and still is an inmate in a penitentiary. It is not alleged that his detention is unlawful. The mere deprivation of television, typewriter, radio, canteen, cigarettes, etc. cannot be construed as false imprisonment.
[25] The plaintiff was not placed in segregation against his will, he could have come out. As a matter of fact, he was invited to come out at any time and to join the general population. He was not transferred to another penitentiary against his will. He was placed in protective or segregative areas, at his request, because he refused to join the general population.
[26] It is clear from the evidence, written and oral, that he did not accept the new policy established by the Correctional Service of Canada. He wanted to preserve the protective custody system. He would not accept the change and said so to the Deputy Warden, when he told him "he knew he could make it in the general population but he wanted to prove a point, the principle of the matter". For his own security and satisfaction, he wanted to be in "a prison within a prison".
[27] Under the new policy, so-called predators are to be identified and isolated. The general area is to be kept safer for others, including the plaintiff. According to the evidence of Mr. Peet, the Deputy Warden at the time, which evidence I accept, the struggle within a penitentiary is for power and control of the drug traffic, the money, the canteen, etc. The predators could be sex offenders themselves.
[28] Neither can it be said that double bunking was cruel and unusual punishment1 or a limitation of liberty. Of course, the enjoyment of a single room is something that society would strive for. In other words, it is an understandable aspiration, not a component of personal integrity.
[29] As to the definition of false imprisonment with reference to an inmate, my colleague Muldoon J. dealt with such an issue in Re Hay and National Parole Board2. He found that, in the circumstances of that specific case, the decision to transfer the inmate from the Saskatchewan Farm Institution back to the Saskatchewan Penitentiary was arbitrary and unfair. (The placement at the farm was earned as a result of good performance.) This passage of his decision reflects the basic principles in the matter, as follows, at p. 415:
| Ordinarily and quite properly the courts are reluctant to interfere with the penitentiary authorities' administrative decisions to transfer inmates from one institution to another and from one security setting to another. So long as those administrative decisions are not demonstrably unfair, they ought properly to be left to those who have the heavy responsibility of preserving good order and discipline among the prison population. Ordinarily inmates cannot be heard to complain about such decisions, if not unfair, since inmates are justifiably undergoing the denunciation of society because they have been found guilty of conduct which is offensive, if not downright repulsive to society and dangerous to victims who are perfectly entitled to enjoy the protection of this free and democratic society which is Canada. Indeed, inmates themselves, although properly not autonomous, are entitled to the protection of the prison system in regard to their lives, their highly qualified liberty and the security of their persons among certain other rights of the individual. |
| Whether or not it was made in good faith, the decision to transfer the applicant from the Saskatchewan Farm Institution back to the penitentiary was arbitrary and unfair. In light of the well-founded notion of "a prison within a prison", transfers from open to close or closer custody can certainly engage the provisions of ss. 7 and 9 of the Canadian Charter of Rights and Freedoms . The decision to effect such an involuntary transfer, without any fault or misconduct on the part of the inmate, as it is abundantly clear was done in the applicant's case, is the quintessence of unfairness and arbitrariness. |
[30] In the instant case, of course, the plaintiff has not established that the decision to move him within the Saskatchewan Penitentiary was arbitrary, or unfair, or made in bad faith. In fact, he was free to leave at any time his "prison within a prison" and to join the general population under the protection and surveillance of the penitentiary authorities. Under the new policy, the predators themselves were incarcerated in "a prison within a prison" while the general population moved freely out of their reach. In fact, the plaintiff has not complained of any assault upon him since 1988.
[31] As to the medical evidence concerning the plaintiff, I accept Dr. Hucker's expert opinion that the two incidents referred to by the plaintiff at Stony Mountain in 1982 and at the Saskatchewan Penitentiary six years later would not have generated all the symptoms of Post-Traumatic Stress Disorder that he described to Dr. Smith.
5. Disposition
[32] It follows that this action must be dismissed with costs.
OTTAWA, Ontario
January 7, 2000
Judge
Date: 20000107
Docket: T-2802-92
OTTAWA, ONTARIO, THIS 7th DAY OF JANUARY 2000
PRESENT: MR. JUSTICE J.E. DUBÉ
BETWEEN:
BRYAN R. LATHAM
Plaintiff
-and-
HER MAJESTY THE QUEEN
Defendant
ORDER
The action is dismissed with costs.
Judge
__________________
1 In Robert Collin v. The Solicitor General of Canada , T-6575-82, I denied an application for an injunction to stop double bunking at the Leclerc Institution in Québec.
2 21 C.C.C. (3d) 408.
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