Docket: T-307-07
Citation: 2012 FC 77
Toronto, Ontario, January 19,
2012
PRESENT: Madam Prothonotary Milczynski
BETWEEN:
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STEPHEN NEESON
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Plaintiff
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and
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HER MAJESTY THE QUEEN
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Defendant
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REASONS FOR JUDGMENT AND
JUDGMENT
Introduction
[1]
On
September 12,
2006 the Plaintiff, Stephen Neeson, was attacked in the Lower B range of
Kingston Penitentiary. He suffered numerous stab wounds to his head, neck and facial
area, and a broken nose. This attack took place a mere 45 minutes after Mr.
Neeson’s release from segregation, where he had been placed for his own
protection, following a brawl in the prison exercise yard that took place on
July 25, 2006.
[2]
As
a result of the
September 12th attack, Mr. Neeson claims damages from the Defendant
for not only the physical injuries he suffered, but also for emotional upset,
anxiety and what he has alleged to be the effects of post traumatic stress
disorder. Mr. Neeson claims that the Correctional Service of Canada (“CSC”) was
negligent and breached its duty of care to provide for the safety of inmates in
its custody. Specifically, Mr. Neeson claims:
i.
The
inmate who
attacked him on September 12th was known to CSC as a person who
suffered from a psychiatric illness and was not on his prescribed medication;
ii.
Consequently,
in such state,
CSC was under a duty to warn Mr. Neeson and others of the danger this inmate
posed;
iii.
There
was some
friendship between Mr. Neeson’s attacker (referred to as “Mr. A”) and another
inmate (referred to as “Mr. B”), with whom Mr. Neeson had been engaged in a
fight, that led to the July 25th brawl; and that
iv.
Consequently,
CSC either knew
or should have known that Mr. Neeson’s safety was in jeopardy.
[3]
It
is clear from the
evidence heard over the course of the trial (and seen through video evidence),
that the assault on Mr. Neeson was brutal and severe. The attack had immediate
and long-term consequences, which were both physical and psychological. In
describing his injuries, I found Mr. Neeson to be a candid and forthright
witness who did not exaggerate what had happened or its effects, but for whom
the assault was clearly a sobering and life altering experience.
[4]
The
difficulty,
however, is in ascribing fault or liability to CSC for what happened to Mr.
Neeson. Far from acting negligently in the case of Mr. Neeson’s safety at
Kingston Penitentiary, I am satisfied that CSC did what it could on an ongoing
basis to gather information about the possible risks and dangers to Mr. Neeson
during the relevant timeframe. Following the July 25th fight and
subsequent riot, CSC monitored the dynamics of prison politics,
inter-relationships and the issues that could spark further violence. CSC took
steps to protect Mr. Neeson by placing him in protective segregation after the
July 25th fight involving Mr. B. At the time of this incident, Mr. A
was himself in protective segregation following a separate and unrelated
incident. Mr. A returned to the general prison population in August when Mr.
Neeson was in segregation. There was no evidence of any friendship between Mr.
A and Mr. B that would suggest the attack on Mr. Neeson by Mr. A was an act of
vengeance for the fight between Mr. Neeson and Mr. B. In fact, the evidence
leads to a finding that the reason for the attack was because Mr. A suspected
Mr. Neeson had stolen items from his cell on previous occasions, while they
were both on Upper G.
[5]
There
was also
insufficient evidence regarding Mr. A’s psychiatric condition or mental
illness. Although imprisoned for a particularly violent index offence, no
evidence was led regarding any specific psychiatric illness for which Mr. A had
refused to take prescribed medication, with the consequence that such failure
to take medication would render him psychotic and/or a threat to others or himself.
[6]
Accordingly, although horrific in its
violence and its consequences for Mr. Neeson, there are insufficient grounds in
the circumstances of this case to find that any act or omission on the part of CSC
constituted a breach of its duty or the applicable standard of care to ensure
the safety of inmates generally, or that of Mr. Neeson in particular. CSC
cannot, on the record adduced through the trial, be found liable for the attack
on Mr. Neeson.
Background Facts/Chronology
[7]
Mr.
Neeson, Mr. A and
Mr. B were all, at one time, housed in the Upper G unit of Kingston
Penitentiary. It was the evidence of Mr. Neeson and that of CSC witnesses, that
the Upper G unit was an influential and powerful unit of inmates and that Mr.
Neeson was a leader among the Upper G and broader prison population. He was
someone who was both respected and feared. CSC acknowledged that Mr. Neeson had
never created problems within the institution, but was a member of the inmate
committee, including its chair and someone who was well regarded by CSC staff.
CSC staff could consult or work with Mr. Neeson to facilitate or diffuse
situations involving other inmates.
[8]
Mr.
A did not enjoy
such status among the prison population. He was regarded as “weird” and
somewhat of a loner. His belongings were the subject of thefts or “fishing”,
something not regarded as egregious for someone of his lower status. Following
an assault on Mr. A by his cellmate (he was “piped”) on April 17, 2006, Mr. A
was placed in segregation for his own protection. Mr. A was kept in segregation
from April 17th until his release into the Lower B range on August
24, 2006.
[9]
At
some point prior
to July, 2006, Mr. B was transferred from Upper G and placed into Upper F.
[10]
While
Mr. A was in
segregation, on July 23, 2006, a number of inmates staged a sit-in in the
exercise yard to protest yard time and the problems and delays with transfers
from Kingston Penitentiary (a maximum security facility), when inmates were
classified such that they could be placed in a medium security facility. The
protest ended peacefully, but before it concluded, Mr. B, who initially
participated in the sit-in, decided he had had enough, and broke ranks and left
the protest. This did not go over well; Mr. B lost face and was called
insulting and racist names. To restore his status, Mr. B traded barbs with Mr.
Neeson in the gym. Ultimately, Mr. B and Mr. Neeson arranged to have a
consensual fight on July 25, 2006.
[11]
It
was agreed
between Mr. Neeson and Mr. B that the fight would be with fists and no weapons.
During the fight, however, racist remarks were directed at Mr. B (who is black)
from the group of inmates watching, tensions grew and someone threw a knife to
Mr. B for him to use against Mr. Neeson. This led to a bloody and violent
swarming of Mr. B who was stomped on and severely injured. Mr. Neeson did not
take part in the swarming of Mr. B, but Mr. Neeson’s friends and supporters who
were from largely white and First Nations communities, inflicted grave injuries
on Mr. B.
[12]
Prison
officials used force
to quell the violence and a lock-down was imposed. Mr. Neeson was taken into
involuntary segregation, both for the purposes of investigation into the riot,
and for his protection, as CSC was concerned about racial violence and
retaliation for the injuries suffered by Mr. B.
[13]
While
Mr. Neeson was in
segregation, CSC gathered information and remained concerned for his safety. His
segregation was reviewed repeatedly and on a regular basis. For the purposes of
these reviews, CSC generated security intelligence reports, met with the inmate
committee and other representatives of the inmate population to determine
whether and/or when Mr. Neeson could safely be released from segregation. Despite
his protests and desire to be released back into general population, CSC kept
Mr. Neeson in segregation because there were ongoing and credible concerns for
his safety. This information was gathered and reviewed by the Assistant Warden
David Page, Jeffrey Smith and Kim Breen, all of whom used the intelligence
tools available to them.
[14]
It
should be noted
that throughout these investigations, there was no information that Mr. A posed
a threat to Mr. Neeson or that he was or should be listed as an incompatible
with Mr. Neeson. There was also no information that Mr. A and Mr. B were
friends or associates. There were no pre-indicators of violence whatsoever as
between Mr. Neeson and Mr. A, and there were no issues while their time
overlapped in segregation (July 25-August 24, 2006).
[15]
CSC
was eventually
satisfied that Mr. Neeson could be released into open population and that there
was little or no risk of violence as a result of the July 25th
swarming of Mr. B and subsequent riot. At about the same time, CSC’s concerns
with the influence of Upper G inmates, led to the decision to break up that
unit. Despite Mr. Neeson’s preference to return to Upper G, on September 12,
2006, he was placed in the Lower B range.
[16]
Upon
release, Mr.
Neeson went briefly to the exercise yard and then on to the range on Lower B.
Mr. A called to Mr. Neeson to show him some papers under the stairway. Mr.
Neeson went over to Mr. A – at that point one of the cameras on the range was
obscured by other inmates on Lower B and Mr. Neeson was attacked by Mr. A. The
remaining camera records some of what happened and following the attack, both
cameras record the injured Mr. Neeson leaving the area and the remaining
inmates mopping up the blood on the floor of the range.
[17]
While
the actions of
the inmates on Lower B in obscuring the camera and cleaning up the blood
suggest that there was some kind of conspiracy to attack or even kill Mr.
Neeson, the evidence of CSC and that of Mr. Neeson himself clarifies the other
inmates’ actions. Rather than being part of a plot with Mr. A, the other
inmates were complying with the unwritten “code” of conduct amongst inmates to
protect the identity of both the attacker and victim, and frustrate the
investigation that would be conducted by prison officials into the attack. Mr.
Neeson himself testified that during the attack, he was careful not to draw
obvious attention to what was happening, but manoeuvred the assault to spill
out into camera view in more spontaneous manner. He also did not seek help or
immediate medical attention, but went to the showers to wash off the blood and
clean his wounds.
[18]
In
any event,
following Mr. A’s attack on Mr. Neeson, an investigation was conducted that
determined (see Exhibit 1 – Tab 32 Report of Beverly Bruce) that the reason for
the attack was that Mr. A suspected Mr. Neeson to be a “box thief” who had
stolen items from Mr. A’s cell while they were both on Upper G.
[19]
There
was no evidence
that Mr. A had ever reported thefts or that there were some lingering residual
hostilities from his time on Upper G prior to being piped by his cellmate. There
was also no evidence that the attack by Mr. A was some act of retaliation or
outburst against Mr. Neeson for him having been a controlling and influential
member of the Upper G unit. Although Mr. A was regarded as “weird” and was
incarcerated for a brutal and vicious index offence (stabbing a friend to death
with numerous stab wounds to the head), there were no pre-indicators that he
would commit a similar attack on another inmate while in Kingston Penitentiary,
particularly not on a high status inmate such as Mr. Neeson. While Mr. A had a
violent past and had been found on occasion with some concealed weapons, this
was not unusual among the population at Kingston Penitentiary.
Law
[20]
It
has been well
established in the case-law that the CSC owes a duty of care to the inmates in
its custody. Reasonable steps must be taken to safeguard their health and
safety from known or foreseeable risks. This is not an absolute guarantee or
to say that incidents will not occur. The issue is whether the acts or omissions
of the CSC fall below the standard of conduct of a reasonable person of
ordinary prudence in the circumstances, (see: Coumont v Canada (Correctional
Service), 77 F.T.R. 253; Miclash v Canada, 2003 FCT 113; Bastarache
v Canada, 2003 FC 1463; Carr v Canada, 2008 FC 1416, aff’d 2009 FC
576). For the matter presently before the Court, the question is whether in
the circumstances, the attack on Mr. Neeson by Mr. A was reasonably foreseeable
or whether CSC knew or ought to have known that Mr. Neeson was in danger, or
that there was a risk Mr. A would attack Mr. Neeson (or anyone else). As noted
in Carr (at para.16-17):
16. The requirement of reasonable foreseeability is satisfied if
there are pre-indicators of violence, that is events or circumstances that make
more likely the possibility of violence. Animosities among inmates or threats
of violence are examples of pre-indicators of violence. An inmate who feels his
or her safety is threatened by such animosity may notify prison officials by
filing an incompatibility report. The definition of "incompatible" is
set out in Commissioner's Directive 568-07, which states that incompatibles are
"offenders who, for whatever reason or situation, pose a threat to the
safety and well-being of each other and hence may pose a safety risk to the
institution and to others." A pre-indicator of violence may, however, be
established in other ways.
17. While the case law cited by CSC
indicates there is no breach of duty for failure to prevent a “quick, planned
and violent attack”….if pre-indicators of violence exist or if violence is
otherwise predictable, then it is the obligation of the CSC to take reasonable
steps to ensure the safety of the at risk inmate, (Coumont,…
Miclash). Given that prisons have an inherent potential for violence and
that CSC cannot be guarantors of the safety of inmates, security measures need
not be perfect nor infallible….They must, however, be adequate and
reasonable….The circumstances of the institution and the inmates as well as the
existence of pre-indicators are all relevant in determining the adequacy of
supervision and whether the CSC have fulfilled their obligation…
[21]
In
the case of Mr.
Neeson, the focus was his safety following the prison yard fight and swarming
of Mr. B. Mr. Neeson was taken into and kept in segregation for his safety from
July 25, 2006 to September 12, 2006. CSC staff gathered intelligence, generated
reports, conducted offender segregation reviews (on July 27, July 31 and August
31, 2006) and remained of the view that Mr. Neeson should be kept in
segregation until sufficient information permitted the conclusion that it would
be safe for him to be released into the general population. CSC was thorough in
its review, and not hasty in releasing Mr. Neeson from segregation. Although
Mr. Neeson protested his continuing segregation, CSC did not release him until
satisfied that the incident involving Mr. B would not pose a danger to his
personal safety. CSC acted prudently and cautiously.
[22]
During
much of this
time, Mr. A was himself in segregation for his own protection (from April 17th
to August 24, 2006), after being assaulted by his own cellmate. Mr. A was thus
not present for the prison yard fight between Mr. Neeson and Mr. B, or Mr. B’s
swarming, and there is no evidence of any friendship between them.
[23]
Although
a violent
offender who may have had some mental health issues, Mr. A was not alone or
unique in that respect amongst the Kingston Penitentiary population, and there
were no pre-indicators or any reasonable basis for CSC to suspect that Mr. A
would attack Mr. Neeson or anyone else. There were no disciplinary issues or
any other incidents involving Mr. A following his release from segregation on
August 24th until his attack on Mr. Neeson on September 12th.
He may have privately harboured ill feeling and suspicion that Mr. Neeson had
stolen items from his cell, but this was never communicated or brought to the
attention of CSC staff. Neither Mr. Neeson nor Mr. A had listed the other as
an incompatible.
[24]
Accordingly,
and in light of
the above, there is no basis to find liability on the part of CSC for the
attack on Mr. Neeson or for his injuries. CSC acted reasonably and prudently
with the information it had and took reasonable steps to investigate matters
into Mr. Neeson’s safety. I am not satisfied on the record before me that the
CSC knew or could have foreseen the risk to Mr. Neeson posed by Mr. A. The
action must therefore be dismissed. This conclusion does not, however, detract
from the Court’s acknowledgment of the serious nature of the assault and the
compelling evidence of Mr. Neeson and that of Dr. DeFreitas regarding its
devastating consequences on Mr. Neeson and his well being.
JUDGMENT
THIS COURT ORDERS THAT:
1.
The action
be and is hereby dismissed.
2.
In the event
the parties cannot agree on the matter of costs, written submissions, no longer
than three pages in length may be filed within twenty (20) days of the date of
this judgment.
“Martha
Milczynski”
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