Caron v. Canada, docket T-1484-94

    

Date: 19990715

Docket: T-1484-94

BETWEEN:

     ERNEST CARON

     Plaintiff

     - and -

     HER MAJESTY THE QUEEN

     Defendant

     REASONS FOR JUDGMENT

NADON J.:

[1]      The plaintiff, an inmate at the Donnacona Penitentiary in the Province of Quebec (the "institution") since October 2, 1991, seeks damages from the defendant on the ground that he was illegally detained. The plaintiff seeks $1,000.00 per day of detention for a total sum of $78,000.00. Further, the plaintiff alleges that the defendant"s servants detained him by reason of "malicious and deliberate disregard of the law, regulations and due process" and, as a result, seeks a sum of $100,000.00 in compensation¹.

[2]      The relevant facts can be summarized as follows. The plaintiff, Ernest Caron, has been in and out of prison since October 1976. On October 2, 1991, he was admitted to the institution, a maximum security institution. Prior to his involuntary transfer, the plaintiff was an inmate at the Archambault Institute in Montreal.

[3]      On January 21, 1992, the plaintiff was placed in administrative segregation pursuant to section 40.(1)(a) of the Penitentiary Service Regulations². The reason given for placing the plaintiff in administrative segregation was his refusal to participate in the institution"s rehabilitation programs. On January 22, 1992, the decision to place the plaintiff in administrative segregation was confirmed by the then warden, Mr. Yvon Deschênes.

[4]      At all material times herein, the institution was made up of two sections, namely sections 240 and 119². The plaintiff, at the time of his admission to administrative segregation, was a resident of section 240 where there were three wings referred to by the witnesses as "Pavillon L". Each wing was comprised of four rows of 20 cells. The control area was at the intersection of the rows. There were two storeys on two sides. In section 119, there were three rows of regular cells and two rows of cells for those placed in segregation. According to Mr. Deschênes, sections 240 and 119 were, for all intents and purposes, two separate institutions having their own facilities which included workshops, gymnasiums and personnel. At the relevant time, the plaintiff worked in the laundry department of his wing and was considered an excellent worker. His grade was grade 5 that is the highest level.

[5]      I should point out that those inmates who were "incompatibles" were placed in section 119 where the number of programs available were less than those available in section 240. I should also point out that, as of January 21, 1992, the plaintiff was the only inmate of his wing in section 240 to have been placed in administrative segregation.

[6]      On January 27, 1992, a case worker met with the plaintiff to verify whether he had changed his mind in regard to his participation in the rehabilitation programs. The plaintiff made it clear that he had not changed his mind. As a result, on January 29, a management team decided that the plaintiff would be released from segregation into the general population of section 119.

[7]      On January 30, 1992, the plaintiff refused to return into the general population of section 119, insisting that he be returned to his wing in section 240. As a result, the plaintiff was charged for his refusal and given notice thereof. On February 10, 1992, he was condemned to 14 days of detention. The plaintiff explained his refusal by stating that section 119 was a "pavillon de protection". Hence, according to the plaintiff, he would not be well thought of by the inmates of section 240 if he agreed to go to section 119. Since the plaintiff continued to refuse to return into the general population of section 119 and continued to refuse to participate in the rehabilitation programs, it was decided on February 21, 1992, to keep him in administrative segregation.

[8]      On March 12, 1992, the plaintiff"s case was reviewed by the management team of his wing, which recommended that he be kept in administrative segregation. On March 16, a summary report of the plaintiff"s segregated status was issued. It reads, in part, as follows:

Vous avez été placé en segregation [sic] administrative, le 92/01/21 pour une période de reflexion [sic] d"une semaine relative à votre refu [sic ] de participer aux programmes de 240. Apres [sic] une semaine, votre AC II3 vous a rencontré et vous avez maintenu votre refu [sic] de participer aux programmes.

L"EGC4 recommandait donc en date du 28/01/92 un placement au Pavillon T Coté [sic] 715. 2 jours plus tard vous avez refusé d"intégré [sic ] ce coté [sic]. Un rapport d"offense a été rédigé relatif [sic ] à ce refu [sic] et vous avez obtenu le 92/02/10 14 jours de detention [sic]. Apres [sic] avoir purgé ce 14 jours vous avez réintegré [sic] la segregation [sic] administrative compte tenu qu"il n"y a aucune volonté de votre part d"integrer [sic ] le cote [sic] 71, ni de participer aux programmes. Votre AGCE est allée pour vous rencontrer le 92/03/12 et vous avez refusé de la voir. La psychologue aussi a tenté de vous rencontrer mais vous avez aussi refusé de la voir.

[9]      On March 19, 1992, a review of the plaintiff"s segregated status was conducted by the warden who came to the following conclusion:

Etant donné votre refus de rencontrer vos intervenants du cote [sic] 240, en plus de votre refus d"integrer [sic ] la population du secteur 71 vous serez maintenu en isolement jusqu"a [sic ] nouvel ordre.

[10]      Copy of the above decision was provided to the plaintiff on March 25, 1992.

[11]      On April 7, 1992, the plaintiff was released from administrative segregation and returned into the general population of section 240. The reason given for the plaintiff"s release, as it appears from a notification of inmate"s release from segregation form, is "raison administrative". A brief explanation of the "raison administrative" is in order.

[12]      On February 2, 1992, the plaintiff filed a grievance in respect of his detention in administrative segregation. The complaint reads as follows:

On January the 21st I was moved into segregation (involuntary segregation) and the next day I received a slip that said, and I quote "Non participation aux programmes", this being crossed out and replaced by "vous refusez de participer aux programmes de l"établissement". Now, it was my understanding, unless there is something wrong with my hearing, that the so-called "programmes ciblés" had become a matter of choice, that is on a voluntary basis. You will notice that no charges were laid, and indeed I never had any reports, even minor ones, since transferring here from Archambault (involuntary transfer) at the beginning of October. [1991] I was working regularly and in all appearances satisfactorily, witness the fact that I was grade 5, the highest in Maximum institutions. In a population of 220 inmates, only two of us were put in segregation for the reason given above. After 9 days, the other inmate was returned to the population general population, without him signing or promising anything as far as I know. And I was told that I was being moved to the W-X-Y section of the prison. This was no return to the population and I refused to go. The next day I got a report that says, and I quote: "Le détenu est rapporté pour refus d"intégrer la population normale du W-X-Y". Now let"s see how normal is this W-X-Y population. There are about 35 inmates there, half of them runaway from the population - the main population, that is, and half of them coming from the street or other pens institutions who can"t go into the general population because of conflicts or other reasons, there isn"t, as far as I know, a single inmate who didn"t go there unvoluntarily [sic ], or is held there against his will. So much for "normal" population. The figures themselves tell the whole story: 220 in the main population; 35 in W-X-Y. The fact that they enjoy the same privileges, although not exactly, cannot change the fact that it is in effect a segregation population where no normal sport activities, for example, can take place because of the very small number of inmates. And the most Jesuitic splitting of hair cannot explain either why the two populations, even though in the same walls, are kept so rigorously segregated with no contact whatsoever between them. So as you can see, I didn"t refuse to integrate a normal population, the only normal population that I know is the one I came from and where I still was a short 10 days ago. Now it is true that I do not talk to members of the personnel, except in the shop of course, unless addressed to, or given an order, or for the necessities of service. If I"m called to the office I will go and take orders but no more. I never had any trouble with that since I started doing time, for I never heard of law, or regulation, that said a prisoner owes conversation to his jailer. A prisoner has no choice as to the prison he is sent to, and he"s not there of his own free will to start with. If he is sent to a maximum security prison, as Donnacona is, I believe, and it is the only one in the province, I believe also, then he has to be in Donnacona, and that is as far against the wall as he can be backed up. So what is a prisoner who is in a maximum security prison going to do? If he doesn"t refuse to work, if he obeys orders - backed by the guns, let"s not forget - and follow the rules and regulations, your rules and regulations, is this man not allowed to breathe and do his time without harassment. Where else is he going to do his time? But maybe that"s not enough, maybe the Great Canadian Penal Service has other ideas. Maybe hanging him by the thumbs in his cell would get better results. And when all is said and done it all boils down to one question: Does a prisoner has [sic ] to be friendly with his jailers, or more precisely, can he be forced to be friendly with his jailers? I do not think so. If he wants to, very well; there are great rewards to be had by being so, as everybody knows, everybody who has done time, that is.

But forcing it on an inmate is an intolerable invasion of his privacy, an inacceptable [sic] intrusion on his mental liberty, which is all he has left after losing his freedom, and I think it can be challenged in court, and will be eventually. I"m also fully aware that a warden has extensive discretionary powers in running a prison, not only he [sic] but his whole staff, but what he doesn"t have yet - unless it was granted lately, unbeknown to me - is the power of life and death, something that I"m sure many of them deplore. But whether they can succeed in transforming this prison into Auschwitz-on-the-St-Lawrence is something that remains to be seen. They"re certainly trying hard with, I"m sure, the best intentions of the world in many cases, but who is it that said: "the road to hell is paved with good intentions", or something like that.

[13]      The plaintiff"s grievance was refused at the first level of appeal. The decision rendered by the warden is as follows:

Before responding to your grievance, we would, first prefer to set certain matters straight:

The answer to your complaint was signed by the Division Head on the space reserved for this on the yellow form.

Also it is not Mr. John Rose AS-5 who is the author of the "Correctionel [sic ] Strategy" upon which is based your placement in administrative segregation.

As for your grievance is concerned, you state that any treatment should and must be on a voluntary basis. We are in agreement with you on this fact and our policy has been modified.

However you do not seem to understand that the Correctional treatment Plan is not a therapy, but a resume of your needs along with the measures that you must undertake in order to allow you to progress and eventually return to society as a productive citizen. It is your choice either to profit from the plan we traced for you or to resume and remain the same person as when you were admitted.

In order for us to offer this choice it is necessary for you to meet with your case management team especially the correctional officer responsible for you.

It is this step which you refused, and has resulted in our decision to transfer you to a pavilion in which the program is designed for people who wish little or no contact with the staff. You refused to integrate the pavilion and prefered [sic] to remain in segregation.

At any time if you wish to meet your Co-II to trace a treatment plan, we will be more than willing to revaluate [sic] your status.

Grievance refused.

[14]      On April 5, 1992, the plaintiff"s grievance was upheld at the second level. The decision rendered by the Deputy Commissioner for the region is as follows:

We have carefully reviewed your grievance at the second level. Since the presentation of your grievance, the Institutional authorities at Donnacona Institution have reviewed its practices in that matter. Consequently, you will be reimbursed for the loss of pay during that period.

Your grievance is upheld.

[15]      On May 4, 1992, the Deputy Commissioner, Jean-Claude Perron, sent the following memorandum to the warden:

Étant donné que la question du placement en ségrégation administrative pour refus de participater aux programmes est remise en question, je vous demande de revoir la procédure existante.

De plus, vous êtes prié de revoir le dossier du détenu Caron et de le rembourser pour la perte de rémunération au cours de cette période. J"aimerais que vous confirmiez les actions prises à la directrice des Communications et des Services à la haute direction d"ici le 19 mai 1992.

Soumis pour action appropriée et merci de votre collaboration.

[16]      On May 28, 1992, John Rose sent the following memorandum to the plaintiff:

Suite à votre plainte datée du 92 .04.28, les autorités de l"Etablissement Donnacona ont décidé, après une étude attentive de votre cas, d"annuler les rapports d"infraction écopés suite à votre refus d"intégrer le pavillon "T".

Il en est de même pour tous les documents attestant que vous avez séjourné en ségrégation administrative pour refus de participer aux programmes et pour refus d"intégrer le pavillon "T" du 92.01.24 au 92.04.09.

Une copie de la présente note de service est versée à votre dossier.

[17]      It is now necessary to say something regarding the institution"s correctional plan. The strategic correctional plan for the institution was implemented in the fall of 1991. On September 26, 1991, the warden sent a memorandum to all those concerned, including the inmates" committee, to inform them that the institution was implementing, as of that day, the strategic correctional plan on the principles put forward by the Correctional Service of Canada. The final version of the document entitled "Stratégie correctionnelle - établissement Donnacona" is dated September 26, 1991.

[18]      I will reproduce those portions of the document which provide the background to the events which give rise to the issue which I must determine. The preamble reads as follows:

Afin de respecter l"Énoncé de Mission du S.C.C. et d"actualiser la Valeur fondamentale 2 de cet Énoncé, le Service Correctionnel du Canada mettait sur pied, au début de l"année 1991, la Stratégie Correctionnelle.

Constituant ni plus ni moins la philosophie dont doivent dorénavant être imprégnés tous les programmes correctionnels offerts dans les établissements carcéraux et dans la communauté, la Stratégie Correctionnelle se veut en fait un prolongement logique de la gestion par unité. Elle permet de "boucler la boucle" du processus de gestion de la sentence d"un détenu tel qu"élaboré par les équipes de gestion de cas.

Dans un exercice au départ appelé "réalignement des programmes"", tous les établissements et les districts devaient revoir les programmes dispensés et questionner leur pertinence en relation avec le profil de la clientèle à qui ces programmes s"adressent; c"est cette approche qui constitue le coeur de la Stratégie Correctionnelle.

Le Service Correctionnel est convaincu que c"est en utilisant une telle stratégie qu"il pourra optimiser les chances de réaliser sa Mission pour ainsi aider les délinquants à devenir des citoyens respectueux des lois tout en exerçant un contrôle raisonnable, sûr, sécuritaire et humanitaire.

L"établissement Donnacona ne fait pas exception à la règle et il se doit aussi d"implanter progressivement cette nouvelle Stratégie Correctionnelle. L"implantation des nouveaux programmes pour soutenir cette stratégie doit se faire sur une période de trois ans. Dès que la philosophie de la Stratégie Correctionnelle a été connue avec un peu plus d"exactitude, l"établissement Donnacona s"est mis à l"oeuvre afin d"identifier toutes les ressources pouvant contribuer à mettre sur pied la stratégie. Il convient aussi d"ajouter que l"établissement Donnacona doit encore une fois modifier sa vocation. Ainsi en septembre l"établissement Donnacona sera un établissement consacré entièrement à recevoir des détenus nécessitant un encadrement sécuritaire maximum.

[19]      Section 1.1 entitled "Cadre conceptuel" makes it clear that the ultimate purpose of the rehabilitation programs is the reintegration of the inmates into society. The section reads as follows:

La prestation des programmes et des services à l"établissement Donnacona doit être axée sur les besoins des détenus et les programmes doivent viser principalement à assurer le déclassement des individus et ultimement le succès de la réinsertion. Tous les programmes devront revêtir une orientation correctionnelle et des buts correctionnels devront être fixés pour chacun des programmes.

Comme Donnacona est le premier établissement à mettre en oeuvre la Stratégie Correctionnelle, il est difficile pour le moment de songer à s"aligner sur les autres établissements. Il est évident que la continuité avec les autres établissements devra être assurée afin d"implanter une stratégie globale.

[20]      Section 1.2 defines the rehabilitation programs as follows:

Les programmes correctionnels réfèrent à toute activité structurée ayant comme objectifs de base l"atteinte d"un meilleur comportement, la disparition des attitudes criminelles et le renforcement des valeurs sociales acceptables afin que les détenus puissent réintégrer la société au moment opportun et qu"ils soient capables de se comporter en des citoyens respectueux des lois.

Les programmes correctionnels englobent des programmes contextuels et des programmes ciblés, lesquels seront expliqués plus loin.

[21]      Section 1.3 sets out the objectives of the programs:

Les objectifs opérationnels visés par le développement des programmes correctionnels sont les suivants:

a.      Fournir aux délinquants des programmes qui les aident à répondre à leurs besoins individuels en vue d"accroître leur potentiel de réinsertion en tant que citoyens respectueux des lois.

b.      Voir à ce que les délinquants soient employés productivement et aient accès à une gamme d"emplois et de possibilités de formation répondant à leurs besoins de croissance personnelle et de développement.

c.      Mettre à la disposition des délinquants une gamme d"activités récréatives et de passe-temps les motivant à utiliser leurs temps libre de façon constructive et les aidant à acquérir des aptitudes et des capacités qui leur seront utiles lors de leur libération.

d.      Voir à ce que l"engagement des citoyen(ne)s bénévoles fasse partie intégrante de nos programmes.

[22]      Section 1.4. sets out the guiding principles with regard to the implementation of the programs. Of particular interest to the present matter is principle c. which states:

c.      La participation et la non-participation aux programmes doivent être supportées par des mesures incitatives et/ou dissuasives (voir le tableau en page 5).

[23]      Section 1.5 outlines a number of "mesures incitatives". For example, an inmate who participates in his correctional plan will be allowed more than the regular four telephone calls per month. Another example is an increase in the number of visits which an inmate may receive every month if he participates in his correctional plan. At the end of the list, the document states that other measures may be added to those above, following recommendations made by the E.G.C. and found acceptable by the direction of the institution. That entry is followed by a nota bene which states that the increase or decrease of incentives will be decided at a bi-monthly conference of the E.G.C. after the study of each particular case.

[24]      Section 3.4 provides that an inmate who arrives at the institution will be temporarily lodged in section 119 so as to allow him to receive "training" for new arrivals. During that period of time, the E.G.C. of section 119 will assess the inmate in order to determine his needs. The E.G.C. will advise the programs committee and advise the inmate that he must "apply" for "an assignment" in relation to his needs. Section 3.2. describes the types of assignments to which an inmate may apply for:

Il convient ici de noter que chacun des secteurs d"activité (cuisine, industries, école, etc...) devra prévoir des tâches qui peuvent être effectuées à temps partiel afin de faire en sorte que les affectations soient adaptées aux besoins des détenus qui auront à suivre certains programmes ciblés et/ou contextuels identifiés par le Comité des programmes. La grande majorité des affectations doit être à temps partiel. Toutefois, un département qui peut identifier et justifier une affectation devant obligatoirement être à temps plein, devra soumettre sa recommandation pour autorisation par le Comité des programmes. Les répertoires des affectations seront évalués périodiquement par le Comité des programmes à la lumière des programmes ciblés et de la formation de base qui peuvent être offerts.

[25]      Section 3.1(b) defines "assignment" as follows:

À moins d"indication contraire, le terme "affectation" signifie, aux fins de la présente politique, une occupation autorisée et rémunérée en conséquence (travail à temps partiel). Ainsi, un détenu pourra bénéficier de plus d"une affectation (ex.: un détenu peut avoir trois affectations: 30 heures à la cuisine, 26 heures à l"école et 4 heures en toxicomanies, avec comme résultat une pleine rémunération aux deux semaines).

[26]      As it appears from section 3.2, inmates were to be assigned to work on a part-time basis so as to allow them to participate in the rehabilitation programs described in section 3.2 as "programmes ciblés et/ou contextuels" identified by the Programs Committee. As I have already indicated, the plaintiff"s assignment was to the laundry department. Section 3.2. also gives examples of what is meant by the expression "programmes ciblés":

Au niveau des programmes ciblés, une priorité sera accordée à toutes les questions touchant l"alphabétisation, la toxicomanie et l"acquisition des compétences psycho-sociales selon les différents programmes regroupés sous cette égide. De plus, il sera de la responsabilité de l"E.G.C. de déterminer le moment opportun de référer un détenu à un programme ciblé. Toutefois, un détenu se désistera d"un programme ciblé lorsqu"il y a aura été affecté ou prévu d"être affecté, se verra attribuer les mesures dissuasives / incitatives mentionnées au tableau de la page 5. Une participation insatisfaisante à un programme ciblé entraine aussi ces mêmes conséquences.

[27]      Section 3.5 provides that an inmate, following his initial assignment, will again be seen by the Programs Committee once his correctional plan has been prepared. By correctional plan, the document means that a "programme ciblé et/ou contextuel" has been prescribed by the Programs Committee. Section 3.6(d) provides that, whenever an inmate refuses to participate in the "programmes ciblés et/ou contextuels", an offense report will be issued for refusal to participate in the programs and the inmate will be sent to administrative segregation. The document further provides that, at the end of his sentence, the inmate will be seen by his AC-II, who will inquire with the inmate with regard to his willingness to participate in the programs. Should the inmate maintain his refusal to participate, he shall be sent to section 119 (Pavillion "T") for an indeterminate period. In due course, the inmate will be given the opportunity to meet his E.G.C. at which time his willingness to participate in the programs, and hence his return to section 240, will be assessed. Should the inmate continue to refuse to participate in the programs, he will again be sent to administrative segregation following the issuance of an infraction report. At the end of his sentence, the inmate, if he still refuses to participate in the programs, may be sent, following a study of his case, into regional administrative segregation. As appears from the Correctional Strategy, the policy was to send inmates who refused to participate in the rehabilitation programs to section 119.

[28]      I will now complete the factual story. When the plaintiff arrived at the institution from the Archambault Institute, he was lodged in section 119 to receive the training given to new arrivals. He remained in section 119 for a short period. Before he was sent into administrative segregation on January 21, 1991, he was given thirty (30) days notice that if he continued to refuse to participate in the programs, he would be sent to administrative segregation.

[29]      Yvon Deschênes, the then warden of the institution, testified at the trial. He explained that there was an obligation on the part of every inmate to participate in the rehabilitation programs. He explained that the institution had been first selected by the Correctional Service of Canada to implement the strategic correctional plan, and this as soon as possible. He explained that this was an experimental project. He explained that he considered the plaintiff"s refusal to participate in the rehabilitation program as a refusal to work. Finally, I should state why the plaintiff refused to participate in the institution"s rehabilitation programs. The plaintiff made it clear during the hearing that his refusal was based on the fact that most rehabilitation programs do not work and, in support of that point of view, he cited to me numerous articles written by experts in that field. As far as the plaintiff was concerned, the rehabilitation programs were a waste of time and money for both himself and the state.

[30]      I now turn to the legal issues. The plaintiff is seeking damages against the Crown on the basis that he was illegally detained. In order to succeed, he must prove that his damages are the result of a tort committed by servants of the Crown. Sections 3(a) and 10 of the Crown Liability Act, R.S.C. 1985, c. C-50, provide as follows:

3. The Crown is liable in tort for the damages for which, if it were a private person of full age and capacity, it would be liable

3. En matière de responsabilité civile délictuelle, l'État est assimilé à une personne physique, majeure et capable, pour_:

(a) in respect of a tort committed by a servant of the Crown; or

a) les délits civils commis par ses préposés;

(b) in respect of a breach of duty attaching to the ownership, occupation, possession or control of property.

b) les manquements aux obligations liées à la propriété, à l'occupation, à la possession ou à la garde de biens.

10. No proceedings lie against the Crown by virtue of paragraph 3(a) 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 in tort against that servant or the servant's personal representative.

10. L'État ne peut être poursuivi, sur le fondement de l'alinéa 3a), pour les actes ou omissions de ses préposés que lorsqu'il y a lieu en l'occurrence, compte non tenu de la présente loi, à une action en responsabilité civile délictuelle contre leur auteur ou ses représentants.

[31]      In Coumont v. Canada et al., 77 F.T.R. 253, my colleague Denault J. explained the nature of the proof which an inmate had to make in order to succeed. At pages 262 and 263, he says the following:

In this instance, the plaintiff is claiming negligence on the part of correctional officials. To find liability in negligence I must determine that there has been a breach of a duty of care and that any resulting damage was caused by these acts or omissions of correctional officials. My colleague, Justice Cullen, very ably summarized the principles applicable to the relationship between inmates and correctional officials in Abbott v. Her Majesty the Queen (1993), 64 F.T.R. 81 at 117-118:

Liability for negligence is assessed on the basis of a breach of a duty of care arising from a foreseeable and unreasonable risk of harm to one person created by the act or omission of another. I agree with counsel for the plaintiff"s submission that there is a legal duty of care between guards and inmates. Inmates are closely and directly affected by actions of guards; they are under the care and control of guards while incarcerated. Although I do not dispute that there are limits on this duty of care, the fact that these individuals are incarcerated does not mean there is no duty of care. Further, guards have discretion to act in various circumstances, however, that discretion cannot be exercised carelessly or unreasonably. As such, I would also accept that there is a sufficient relationship in terms of proximity and neighbourhood to the extent that carelessness by a guard through act(s) or omission(s) would likely cause damage that was reasonably foreseeable ...

Having established a sufficient relationship between the plaintiff and the defendant"s servants, the question becomes was there a breach of the standard of care required to take reasonable care in the circumstances.

Further, in Timm v. The Queen, [1965] 1 Ex. C.R. 174 at 178, Cattanach J. held that:

The duty that the prison authorities owe to the suppliant is to take reasonable care for his safety as a person in their custody and it is only if the prison employees failed to do so that the Crown may be held liable, vide Ellis v. Home Office, [1953] 2 All E.R. 149.

Clearly there is a duty of care between correctional officials and inmates which I believe includes an obligation to take reasonable steps to protect an inmate from fellow inmates.

[32]      Further, at page 265, Denault J. makes the following comments regarding the placement of an inmate in administrative segregation pursuant to section 40(1) of the Penitentiary Service Regulations:

In relation to the decisions to place the plaintiff in administrative segregation and to continue holding him there, I can find no breach. Once again, the correctional officials had a statutory authority to make these decisions: subsection 40(1) of the Penitentiary Service Regulations. Also, as above, the determination I must make is not whether this decision was correct or even reasonable, but whether it was negligent. The initial decision to enter administrative segregation was that of the plaintiff. His continued detention there was a result of his refusal to go into protective custody. I fail to see how correctional officials may be found to be negligent in their efforts to protect the plaintiff by keeping him in administrative segregation, particularly since the plaintiff is at the same time claiming that they were negligent by placing him in the general population and in protective custody. His segregation was regularly reviewed by the Segregation Review Board and I am convinced that he would have been placed into protective custody at an earlier opportunity had he been willing.

[33]      I agree with Denault J. that, to succeed, the plaintiff must convince me, on a balance of probabilities, that the decisions to send him to administrative segregation on January 21, 1992, and to detain him until April 4, 1992, constitute negligence on the part of the defendant"s servants. I agree with Denault J. that it is not up to me to decide whether "the decision was correct". Rather, I have to decide whether the decisions taken by the institution authorities, bearing all of the circumstances, were open to them. In other words, do the decisions taken by the authorities fall within the discretion conferred upon them under section 40(1) of the Penitentiary Service Regulations .

[34]      Whether or not someone else making the decision would have taken a different view is, in my opinion, irrelevant. The issue, therefore, for determination is whether, in all of the circumstances of the case, the authorities were negligent in segregating the plaintiff on January 21, 1992 by reason of his refusal to participate in the institution"s rehabilitation programs and in detaining him until April 4, 1992 by reason of his refusal to reintegrate the general population of section 119. For the reasons that follow, I am of the view that the authorities were not negligent.

[35]      Section 40(1)(a) of the Penitentiary Service Regulations clearly provides that the institutional head may order an inmate to be dissociated if satisfied that it is necessary or desirable for the maintenance of good order and discipline in the institution, or in the best interest of the inmate. In Brandon v. Canada (Correctional Service of Canada), 131 D.L.R. (4^th) 761, Gibson J. was faced with an action taken by an inmate for damages resulting from false imprisonment. One of the issues which the learned judge had to decide was whether there was evidence to support the decision of the institution"s director to segregate the inmate. Gibson J. determined that issue as follows:

[...] In the terms of subsection 40(1) of the Regulations, no evidence was adduced before me that satisfies me that the director of the institution could have been satisfied that, for the maintenance of good order and discipline in the institution or, in the best interest of an inmate, it was necessary or desirable that the plaintiff should be kept from associating with other inmates. While, on the basis of the plaintiff's efforts to play on the sympathies of a staff member and on the basis of his prior history of misconduct with another staff member, the director could, I conclude, be reasonably satisfied that there was justification in terms of the maintenance of good order and discipline of the institution in keeping the plaintiff from associating with one or more institutional staff members, that is not a ground for dissociation.

Gibson J. concluded that there was no evidence before him which could lead him to conclude that the director of the institution could have been satisfied that it was necessary, or desirable, that the plaintiff be dissociated from other inmates for the maintenance of good order and discipline in the institution. In the present matter, I am of the opinion that there was sufficient evidence to satisfy the warden that it was necessary or desirable to dissociate the plaintiff from other inmates.

[36]      The plaintiff was placed in administrative segregation on January 21, 1992, by reason of his refusal to participate in the rehabilitation programs. Not only did the plaintiff refuse to participate in these programs, he refused to meet the case workers charged with the implementation of the programs. The plaintiff refused to have anything to do with the rehabilitation programs. He was ready and willing to do his work in the laundry department but did not want to be bothered by anything else. The warden, and those in authority in the plaintiff"s wing in section 240, considered that the plaintiff"s attitude was unacceptable and, as a result, they took the decision to place him in administrative segregation on January 21, 1992.

[37]      Because he refused, on January 30, 1992 to return to the general population of section 119, the plaintiff was charged and, on February 10, 1992, was condemned to fourteen days of detention. From that point on, the plaintiff continued to refuse to participate in the rehabilitation programs and to return to the general population of section 119. As a result, he remained in detention until April 9, 1992.

[38]      The institution had been given a mandate by the Correctional Service of Canada to implement, as soon as practicable, the correctional strategy. It is obvious, upon reading the document, that great efforts had been made in devising and implementing a correctional strategy for Canada. As I indicated earlier, the ultimate purpose of this strategy was the reintegration of inmates into society. For example, section 1.6 sets out the goals of the strategy in the following terms:

NIVEAU 1 - CIBLES VISÉES:

A.      CHANGER LES ATTITUDES, CROYANCES ET VALEURS

1.      Assurer le suivi psychologique

2.      Suivre le programme "Délinquants sexuels"

3.      Corriger les erreurs de pensées

4.      Développer l"empathie

5.      Développer la culpabilité

6.      Améliorer les habiletés personnelles dans le sens du respect d"autrui

7.      Améliorer l"image de soi

B.      ACCROITRE LE CONTROLE DE SOI ET AMÉLIORER LA GESTION DES PROBLEMES

8.      Gérer l"agressivité et la colère

9.      Réduire l"impulsivité et la violence

10.      Élargir l"éventail des moyens pour résoudre les problèmes

11.      Planifier à moyen et à long terme

12.      Apprendre à prévoir les conséquences de ses actes

13.      Développer de la stabilité au niveau occupationnel, résidentiel et/ou émotif

NIVEAU 2 - CIBLES VISÉE:

C.      CONSOLIDER LES ACQUIS

14.      Se dissocier des pairs criminels

15.      Respecter les règles et par extension, la loi et l"autorité

16.      Faire correspondre le comportement actuel avec le (beau) discours tenu

17.      Persévérer dans les nouveaux acquis. Adopter un comportement institutionnel exempt de mensonge, vol, agression, exploitation, etc. . .

NIVEAU 3 - CIBLE VISÉE

D.      RENFORCER LES COMPOSANTES PRO-SOCIALES DU FONCTIONNEMENT

18.      Réduire la dépendance à l"égard des drogues et de l"alcool

19.      Développer les habiletés de communication

20.      Apprendre à établir des relations familiales et conjugales harmonieuses

21.      Améliorer la formation générale et professionnelle

22.      Apprendre à gérer ses temps libres de façon constructive

[39]      When the case workers attempted to meet the plaintiff to discuss and implement a possible correctional plan tailored to his needs, the plaintiff flatly refused to even meet with them. In that regard, the plaintiff never altered his course. For the reasons given earlier, he was simply not interested in rehabilitation.

[40]      Faced with the plaintiff"s complete refusal, the authorities decided that, for the maintenance of the good order and discipline of the institution, steps had to be taken. They did so by segregating the plaintiff for one week following which they decided that he would be returned to the general population of section 119.

[41]      In my view, the maintenance of good order and discipline in the institution necessarily includes the proper administration and implementation of the Strategic Correctional Plan. To allow an inmate to decide as he pleases is not, with respect to the contrary view, an acceptable position. The plaintiff had, in my view, no choice but to participate in the rehabilitation programs and, at the very least, meet with the case workers to discuss a possible rehabilitation program designed for his needs. Whether that plan would succeed is not relevant. At the very least, the plaintiff had to make an attempt which, in the event, he was not prepared to do. Consequently, I am of the view, that the authorities were not negligent in taking the decision that they did on January 21, 1992.

[42]      With respect to the plaintiff"s refusal to return to the general population of section 119 and hence the decision to keep him segregated, I am also of the view that the authorities were not negligent. The correctional plan clearly provided that an inmate who refused to participate in the rehabilitation programs would be sent to section 119. The plaintiff testified that he did not wish to go to section 119 because it was a "pavillon de protection". If I understood him well, he meant by "pavillon de protection" that section 119 was designed to keep inmates who had, for example, informed upon other inmates or had done something which required that they be protected from the general population of section 240. The plaintiff feared that, upon being sent to section 119, the inmates of section 240 would, in the future, be suspicious of him and that some inmates might, if given a chance, attempt to hurt him. Although the plaintiff did not explain this in clear terms, this is what I understood reading between the lines. Both John Rose and Yvon Deschênes testified that there were three rows of regular cells in section 119 in addition to two rows of cells for inmates placed in segregation, which included the cells for inmates who had asked to be placed in segregation for their protection. I accept the evidence of Messrs. Rose and Deschênes on this point. In any event, since the burden of proof was on the plaintiff, he has not met that burden. Consequently, I am of the opinion that the institution authorities were not negligent in placing the plaintiff in administrative segregation by reason of his refusal to return to the general population of section 119.

[43]      The fact that the plaintiff"s grievance was upheld does not, in my view, help the plaintiff. He appears to have succeeded on his grievance because persons in authority, above the institutional head, decided that the correctional plan and strategy should be revised and, as a result, they decided that, in the circumstances, the plaintiff was entitled to the payment of the wages he lost during the period of segregation. It was also decided to cancel the offense with which he was charged by reason of his refusal to go to section 119. However, on the evidence before me, I cannot find that the warden and those in authority in the plaintiff"s wing in section 240, acted in a negligent way when they made the decisions which are the subject matter of this litigation. On the basis of the correctional strategy put forward by the Correctional Service of Canada and as implemented at the institution, their decisions to dissociate the plaintiff and to send him to section 119 were, in my view, clearly justified under section 40(1)(a) of the Penitentiary Service Regulations . For these reasons, the plaintiff"s action shall be dismissed.

[44]      Should the defendant wish to have its costs, counsel may speak to me by the end of August, 1999.

Ottawa, Ontario      "MARC NADON"

July 15, 1999      JUDGE

__________________

¹ At the beginning of the trial, the plaintiff was represented by counsel. However, at the end of the day, the plaintiff "fired" his counsel, Me Bernard. The plaintiff then represented himself for the duration of the trial.

     ^[0]      Dissociation
40(1) Where the institutional head is satisfied that
     (a)      for the maintenance of good order and discipline in the institution, or      (b)      in the best interest of an inmate
it is necessary or desirable that the inmate should be kept from associating with other inmates, he may order the inmate to be dissociated accordingly, but the case of every inmate so dissociated shall be considered, not less than once every month, by the Classification Board for the purpose of recommending to the institutional head whether or not the inmate should return to association with other inmates.
(2) An inmate who has been dissociated is not considered under punishment unless he has been sentenced as such and he shall not be deprived of any of his privileges and amenities by reason thereof, except those privileges and amenities that
     (a)      can only be enjoyed in association with other inmates, or
     (b)      cannot reasonably be granted having regard to the limitations of the dissociation area and the necessity for the effective operation thereof.

² The sections appear to have been so named because they were comprised of 240 cells and 119 cells.

³ Agent de correction de niveau II (Correctional Agent - Level II).

⁴ L"équipe de gestion de cas (the Case Management team).

⁵ This is another way of designating section 119.