Date: 20000627
Docket: T-1317-96
BETWEEN:
PHILLIP A. HIBBERT
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT
JOYAL D.J.
[1] This is an action for damages suffered by the Plaintiff while an inmate at the Warkworth Institution, a correctional centre in the Kingston, Ontario area, run by the Correctional Service of Canada ("CSC").
The Facts
[2] The damages cover a serious injury to the Plaintiff"s right eye when, in the course of or by reason of an altercation, he was hit with a iron bar by a fellow inmate named Palman. The Plaintiff claims that the Defendant"s servants, i.e. the correctional officers, were negligent or in breach of their statutory duties by reason of their failure to take any measures to protect the Plaintiff from this violent assault on his person.
[3] The events leading to all of this occurred on Easter morning, April 7, 1996, in the Music Room, located just off the Gymnasium at Warkworth. The gymnasium is actually a sports complex. It contains a large central area for basketball and floor hockey, measuring some 90 feet by 45 feet, and which in turn, is surrounded by enclosed spaces of various sizes, for handball and squash courts, for weight lifting and for various support purposes.
[4] Surveillance and security in the entire area is provided by three correctional officers, two of them in the northeast sector of the area, and the third in the mezzanine level, surveying the whole area. The usual duties of the floor guards is to periodically patrol the perimeter of the complex, checking into the enclosed areas from time to time, and generally seeing to the orderliness of the activities. In turn, the floor officer is kept under surveillance by the other floor officer and by the one on the mezzanine level.
[5] One of the enclosed spaces, measuring some 20 feet square, is the Music Room. It is located in the northwest sector of the complex. It has a solid double door and an adjacent window opening onto the gym floor. The Music Room is, for all intents and purposes, a sort of inmates" preserve. The room contains guitars, amplifiers, microphones, keyboards, music stands and the like. Subject to guard supervision, the room is run by the inmates themselves, who allocate particular periods of use to members of specific musical groups. The Plaintiff is a member of one of these groups.
[6] On the morning in question, at approximately 10:00 a.m., the Plaintiff entered the Music Room. Sunday morning was his time slot, and his co-musician, Inmate Douglas, was already there. Another inmate, however, was also there, Inmate Palman. The Plaintiff did not take to this at all. He told Inmate Palman that he had no business there at that hour and ordered him to get out. Some pushing and shoving took place until, according to the Plaintiff"s evidence, Inmate Palman took a swipe at the Plaintiff, which the Plaintiff effectively blocked, and the latter, in turn, threw three or four hard punches to the head of Inmate Palman. This seemed to cool things off and Inmate Palman walked away. The Plaintiff proceeded to prepare his instruments.
[7] According to the Plaintiff, Inmate Palman left the Music Room and returned a few minutes later and, while the Plaintiff had his back turned, he hit the Plaintiff across the right side of his head with a 22" steel or iron rod. The Plaintiff, starting to bleed profusely, fell to the floor beneath a bench. Inmate Douglas then intervened to prevent further hits and Inmate Palman left the room. Inmate Douglas then alerted the staff. Medical resources were immediately summoned. Normal procedures were then followed and no issue is raised as to adequacy of care. The Plaintiff remains, however, with seriously impaired vision in his right eye.
Analysis of the Evidence
[8] The major issue in the evidence as proffered by the Plaintiff is that the correctional officers on duty at the time should have known what Inmate Palman was about to do. According to the Plaintiff, Inmate Palman left the Music Room, walked diagonally across the open gym space to the weight lifting area to the south west, got hold of an iron bar and walked back to the Music Room, where he then assaulted the Plaintiff with the bar. The Plaintiff could not provide direct evidence as to the movements of Inmate Palman at that particular time.
[9] The Plaintiff argues that the correctional officers should have observed this incident, i.e. the limping walk of Inmate Palman from the Music Room to the Weights Room and back again. The duty officers deny this, testifying that Inmate Palman was only observed when he left the Music Room shortly before they were informed by Inmate Douglas that the Plaintiff had been seriously wounded and required medical attention. Assuming that Inmate Palman would not be traversing some 100 feet of open space while brandishing his long iron bar for everyone to see, there would not have been anything untoward to be observed by the guards or anything to suggest that Palman was up to no good and that whoever was in the Music Room required protection.
[10] In my respectful view, the evidence before the Court must be analysed in the context of a cause of action which is based on the negligence of the duty guards or a breach of their statutory duty to protect the Plaintiff. I might observe here that the Defendant Crown is not an insurer on whom is imposed a contractual liability, but one where some kind of link between cause and effect must be established.
[11] This is to say that until Inmate Douglas reported to the duty officers on the injuries suffered by the Plaintiff, there is not much to lead one to suspect that the guards had any kind of knowledge or could have imagined that mayhem was afoot in the Music Room. It is to say that I have difficulty finding in that evidence the necessary elements to agree with the Plaintiff"s position.
[12] Quite apart from the credibility issues raised in this analysis, the record contains more cogent evidence in a statement signed by Inmate Douglas before Correctional Officer Chapin. This statement, made contemporaneously with the events in question, clear states that after the Plaintiff had punched Inmate Palman in the face a few times, Palman grabbed an iron bar and struck the Plaintiff with it. In other words, Inmate Palman did not leave the Music Room prior to using an iron bar on the Plaintiff"s head.
[13] On the face of it, this statement is hearsay evidence and before it can be given any weight, it must be found to come within the exception to the hearsay rule.
The HEARSAY RULE, Revisited
[14] From 1990 until 1993, the Supreme Court of Canada has rendered three very important judgments on hearsay evidence: R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; and R. v. B(K.G.), [1993] 1 S.C.R. 740. These applicable principles have been developed in the context of a criminal case; however, the principles remain relevant in a civil case. For a better comprehension of the twofold test, I reproduce the comments of Lamer C.J. in R. v. Smith, supra, at pp. 929-930:
| It has long been recognized that the principles which underlie the hearsay rule are the same as those that underlie the exceptions to it. Indeed, Wigmore on Evidence (2nd ed. 1923), vol. III, described the rule and its exception at sec. 1420 in the following terms at "1420: |
| The purpose and reason of the Hearsay rule is the key to the exceptions to it. The theory of the Hearsay rule ... is that the many possible sources of inaccuracy and untrustworthiness which may lie underneath the bare untested assertion of a witness can best be brought to light and exposed, if they exist, by the test of cross-examination. But this test or security may in a given instance be superfluous; it may be sufficiently clear, in that instance, that the statement offered is free from the risk of inaccuracy and untrustworthiness , so that the test of cross-examination would be a work of supererogation. Moreover, the test may be impossible of employment " for example, by reason of the death of the declarant ", so that, if his testimony is to be used at all, there is a necessity for taking it in the untested shape. These two considerations " a Circumstantial Guarantee of Trustworthiness, and a Necessity, for the evidence " may be examined more closely ... |
| Of the criterion of necessity, Wigmore stated: |
| Where the test of cross-examination is impossible of application, by reason of the declarant"s death or some other cause rendering him now unavailable as a witness on the stand, we are faced with the alternatives of receiving his statements, without that test, or of leaving his knowledge altogether unutilized. The question arises whether the interests of truth would suffer more by adopting the latter or the former alternative ... [I]t is clear at least that, so far as in a given instance some substitute for cross-examination is found to have been present, there is ground for making an exception. [Emphasis in original] |
| And of the companion principle of reliability " the circumstantial guarantee of trustworthiness " the following: |
| There are many situations in which it can be easily seen that such a required test [i.e., cross-examination] would add little as a security, because its purposes had been already substantially accomplished. If a statement has been made under such circumstances that even a sceptical caution would look upon it as trustworthy (in the ordinary instance), in a high degree of probability, it would be pedantic to insist on a test whose chief object is already secured. |
| Well before the decision of this Court in Khan, therefore, it was understood that the circumstances under which the declarant makes a statement may be such as to guarantee its reliability, irrespective of the availability of cross-examination. "Guarantee", as the word is used in the phrase "circumstantial guarantee of trustworthiness", does not require that reliability be established with absolute certainty. Rather it suggests that where the circumstances are not such as to give rise to the apprehensions traditionally associated with hearsay evidence, such evidence should be admissible even if cross-examination is impossible. According to Wigmore, while it was not possible to generalize as to all cases in which other circumstances would provide a functional substitute for testing by cross-examination, certain broad categories could be identified: |
| "1422 ... Though no judicial generalizations have been made, there is ample authority in judicial utterances for naming the following different classes of reasons underlying the exceptions: |
| a. Where the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed; |
| b. Where, even though a desire to falsify might present itself, other considerations, such as the danger of easy detection or the fear of punishment, would probably counteract its force; |
| c. Where the statement was made under such conditions of publicity that an error, if it had occurred, would probably have been detected and corrected. |
[15] As we can see, two criteria have to be met: firstly, the criterion of necessity and secondly, the criterion of reliability. In the case at bar, we are confronted with a situation where inmates are involved. As was described by Denault J. in Coumont v. The Queen (1994), 77 F.T.R. 253, there exists in the structure of the correctional system a certain code called "con code", which involves a complex set of rules. The most important rule is, as Denault indicated at p 256:
| ... that an inmate keeps his mouth shut at all times and never steals from fellow inmates. Failure to adhere to the code results in beating or being killed, particularly if you have "ratted", and falling to the bottom of the hierarchy. |
[16] In this case, it is obvious that the security of inmates can be in jeopardy if they are forced to testify against another inmate on events that occurred in the penitentiary. Furthermore, it appears from the evidence that Inmate Douglas, who was a witness to the whole incident, is now missing.
[17] Based upon these circumstances, I need not do more than be satisfied that the criterion of necessity is clearly met.
[18] On the second criterion, that of reliability, it appears that the officer"s statement was made by a person in charge of the investigation who did not have any personal interest and who was following an internal procedure. Furthermore, this statement was made right after the events. The factor of contemporaneousness is adequately met. Reed J., in Kelly v. The Queen (1994), 80 F.T.R. 1, mentioned the importance of this factor, at p. 2:
| Thirdly, a crucial factor in assessing the evidence is the lack of any reliable written contemporaneous record mentioning any excessive abuse suffered by Mr. Kelly while he was at Kingston, particularly any such abuse which focused on his ex-RCMP officer role. It is not credible to think that Mr. Kelly would have encountered the abuse which he alleges and not have mentioned it, for example, to the Correctional Investigator or to his case management officer at Kingston. Indeed, the contemporaneous written documentation demonstrates the exact opposite to that which Mr. Kelly now asserts. [Emphasis in original] |
[19] In the circumstances herein, I am satisfied that the second criterion is also met. The officer"s written statement, signed by Inmate Douglas, may be allowed on the basis that they are exceptions to the hearsay rule.
[20] This finding weakens considerably the evidence of the Plaintiff to the effect that the Defendant"s servants were negligent in not observing Inmate Palman go from the Music Room to the Weights Room where he could have obtained the lethal weapon involved. As a matter of fact, buttressed by what I have noted with respect to hearsay, I fail to find any evidence favourable to the Plaintiff. On the morning in question, the presence together of the Plaintiff, of Inmate Douglas and of Inmate Palman was certainly not a matter of concern. In the circumstances, the routine rounds by the duty guards in the whole area of the sports complex would certainly appear to be adequate. On Sunday mornings, the area is very lightly occupied and there is no evidence that distractions anywhere were noted. There was no alert. There was no cry for help. The first knowledge of the incident passed along to the guards was Inmate Douglas" informing them that an inmate in the Music Room required medical attention.
Conclusion
[21] The Court cannot underestimate the degree of partial yet permanent disability suffered by the Plaintiff in this encounter on the morning of Easter Sunday, some four years ago. Neither can the Court overlook the limited scope of the Plaintiff"s legal processes when viewed in the context of the internal "con code" of inmates as noted by Denault J. in Coumont v. The Queen, supra .
[22] Nevertheless, I must conclude that the Plaintiff has failed to discharge the requisite burden of proof for him to succeed. I fail to find any evidence that the correctional officers involved were either negligent or in breach of their statutory duties with respect to the care and protection of the inmates. There may be other sources from which to obtain compensation, which counsel might explore, but these are beyond the purview of this Court.
[23] As to quantum of damages, these have been fixed by consent of the parties at $45,000, inclusive of all and any heads of damages. I assess the damages accordingly.
[24] The Plaintiff"s action is dismissed. I make no order as to costs.
JUDGE
O T T A W A, Ontario
June 27, 2000.
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