Docket:
T-3-10
Citation: 2014 FC 164
SIMPLIFIED ACTION
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BETWEEN:
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SHEM WILLIAM TROTMAN
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Applicant
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and
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HER MAJESTY THE QUEEN
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Respondent
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REASONS FOR JUDGMENT
PROTHONOTARY MORNEAU
[1]
At approximately 8:56 p.m.
on January 8, 2007, when he was in the gymnasium of Sector 240 of the
Donnacona maximum security penitentiary (the penitentiary), the applicant was
shot in the hand by a correctional officer, thus causing some injury to him.
[2]
As a result of this
incident, the applicant has commenced a simplified action before this Court in
which he is claiming $45,000.00 in damages from the respondent.
[3]
In his statement of
claim filed in January 2010, the applicant essentially maintains that the
respondent is at fault in that [translation]
“[a]t the moment the applicant was hit by the deliberate shot fired by
the correctional officer, there was no danger of serious bodily injury, death or
escape and there were less harsh measures available to put an end to the
confrontation” (paragraph 10 of the applicant’s Statement of Claim).
[4]
For the reasons that
follow I have arrived at the conclusion that an analysis of the relevant facts
surrounding the said gunshot leads to a finding in law that the respondent’s
servants are not guilty of misconduct against the applicant and that his action
must therefore be dismissed.
The facts
[5]
The facts essential
to gaining an understanding of this decision appear to this Court to be the
following, after a review of the affidavits and testimony presented by both
parties at the trial of the action.
[6]
The gunshot referred
to in the first paragraph was fired during a final altercation that took place
near a billiard table in the gymnasium and involving, on one side, the
applicant and one Jason Andrew Kooger (Kooger) who formed a team, and, on the
other, one Jason Steven McGowan (McGowan) (the Main Altercation).
[7]
McGowan found himself
in the penitentiary following a second federal prison sentence for two years
and eleven months for a series of violent offences.
[8]
As for the applicant and
Kooger, they are both in the penitentiary serving life sentences for second
degree murder.
[9]
It should be recalled
from the start that the Main Altercation, which broke out at approximately 8:55 p.m.
(and to which we shall return later), was not the first violent incident to
have occurred in the gymnasium on the evening of January 8, 2007 and in
which the applicant, among others, was involved.
[10]
Indeed, the various
eye-witness accounts of the correctional officers who were on duty supervising
the gymnasium that evening of January 8, 2007 (namely, officers Stéphane
Beaulé, Patrice Munger and Karine Maloney), the applicant’s testimony, as well
as video evidence of some of the incidents lead the Court to understand and
note that the Main Altercation was preceded by at least four assaults which may
be summed up as follows:
1.
At approximately 7:28 p.m.,
the applicant and Kooger approached inmate Ronald Sparks; they talked briefly
with him and suddenly the applicant struck him violently with a shank. The
assault caused several injuries to Sparks (the Sparks assault).
2.
At approximately 7:35 p.m.,
the applicant allegedly assisted another inmate who attacked inmate Woodley
Coldros, striking him in the head with a shank when he was in a telephone booth
(the Coldros assault).
3.
At approximately 8:08 p.m.,
the applicant struck inmate Hébert-Plouffe in the face with a shank (the Hébert-Plouffe
assault).
4.
At approximately 8:22 p.m.,
the applicant attacked McGowan, possibly near the training equipment in the
gymnasium. McGowan was wounded in the ear but remained in the gymnasium. The
applicant acknowledged that he had taken part in the assault (the McGowan
assault).
[11]
Thus, in a little
over a half hour, three assaults with a weapon involving the applicant
occurred. At the end of these three first assaults, prison authorities had to
dispatch three correctional officers to accompany each victim to an outside
hospital.
[12]
A general return to
cells was ordered at approximately 8:40 p.m. (the General Return to Cells).
The purpose of a general return to cells is to direct inmates to leave the
gymnasium, two by two, and return to their cells, after undergoing a thorough
search.
[13]
Could the General
Return to Cells have been ordered earlier, and, if so, can it be inferred that
this would have prevented the Main Altercation? We will return to these
scenarios in our analysis.
[14]
The General Return to
Cells, to return to the sequence of events, did not, in fact, result in the
applicant, Kooger or McGowan leaving the gymnasium.
[15]
The ensuing events were
those that essentially led up to the Main Altercation.
[16]
A description of
those pivotal events is provided by the testimony-in-chief, by affidavit, of
correctional officer Stéphane Beaulé (Officer Beaulé’s affidavit), namely, the
officer who ultimately opened fire on the applicant. That testimony is largely
corroborated by written affidavits from correctional officers Munger and
Maloney, who witnessed a good part of the relevant events up close.
[17]
While we will want to
review the assessment of certain aspects of this affidavit along with the video
that captured parts of the events described below (this video having captured
the events described at paragraphs 78 to 105 of the said affidavit),
the following paragraphs from Officer Beaulé’s affidavit nonetheless do
describe what he (and, at times, his colleagues Patrice Munger and Karine
Maloney if we refer to their affidavits) had been able to observe and ascertain
from the moment the Main Altercation started until it ended at approximately 8:55 p.m.
(reproduced verbatim):
[translation]
47.
After Dominik
Hébert-Plouffe left the gymnasium, I saw Shem Trotman and Jason Kooger at the billiard
table on the corner of the canteen wall.
48.
At that moment, I saw
Shem Trotman hand a shank to Jason Kooger, who put it in his left pocket.
49.
The two were armed
with shanks and presented a high level of dangerousness.
50.
I noticed that below
me was inmate Jason McGowan, who was pacing back and forth in front of the
training equipment towards the canteen and that he was injured behind the left
ear.
51.
I did not know that
Jason McGowan had been assaulted by Shem Trotman and/or Jason Kooger, but it
was clear to me that Shem Trotman and Jason Kooger wanted to harm him.
52.
Jason Kooger was constantly
staring at Jason McGowan while keeping his hand in his pocket. It looked as if
he was waiting for the right time to rush at Jason McGowan and stab him.
53.
Shem Trotman and Jason
Kooger looked like two predators waiting for the right moment to attack their
prey.
54.
I truly felt that if
Shem Trotman and Jason Kooger got to Jason McGowan, they would kill him.
55.
The previous incidents
that evening involving Shem Trotman and Jason Kooger had occurred very quickly.
56.
But this time, they
were not hiding; they were determined to get Jason McGowan. Their intentions
were clear to me.
57.
According to the
Situation Management Model, we had reached the last stage where the use of firearms
is warranted, as set out in the Situation Management Model, Exhibit SB‑1.
58.
So I opened my window
while preparing my firearm.
59.
The little game that
unfolded between them lasted at least 25 minutes.
60.
During that time, I
yelled out to Jason McGowan in French and English to get out of the gymnasium
but he would not comply with my order.
61.
Officer Patrice
Munger even opened the gate so that he could get out of the gymnasium but he
didn’t want to.
62.
I asked Jason McGowan
to leave to avoid being attacked by Shem Trotman and Jason Kooger.
63.
That said, the gate
door was wide open, Shem Trotman and Jason Kooger could easily have left the gymnasium
without incident.
64.
When the general
return to cells was called by the MCCP, Shem Trotman and Jason Kooger
approached Jason McGowan to within about 25 feet of him and took out their
shanks.
65.
Shem Trotman and
Jason Kooger finally decided to attack him.
66.
Jason McGowan was
right in front of the training equipment area near the canteen; Shem Trotman
and Jason Kooger were advancing from the corner of the canteen near the billiard
table.
67.
Shem Trotman and
Jason Kooger were wearing coats.
68.
I fired two (2)
warning shots just above their heads to stop them.
69.
The warning shots
worked: Shem Trotman and Jason Kooger backed up toward the canteen.
70.
A few moments after
that, they started moving forward again but Officer Patrice Munger
(Alpha 22) fired a rifle shot right next to them and they went back toward
the billiard table.
71.
Officer Munger fired
a shot right near them, about two feet away. He shot a Pepsi can.
72.
The three warning
shots stopped Shem Trotman and Jason Kooger from advancing further towards
Jason McGowan. Even when backing up, they continued to stare at Jason McGowan.
It wasn’t over. It was obvious they were determined to attack him.
73.
During this time, my
window remained open and there were no inmates near Jason McGowan.
74.
I never saw McGowan
with a weapon and at no time did I believe he had one.
75.
When the inmates
started leaving I heard inmate Duguay say [translation]
“if you don’t want to leave the gym, well then stop hiding where the armed
officers are and go fight them.”
76.
He was inciting Jason
McGowan to go and confront Shem Trotman and Jason Kooger.
77.
After a challenge
like that, Jason McGowan really had no choice but to go and confront them
because of the “Con Code.”
78.
So he walked toward
Shem Trotman and Jason Kooger who were in the billiard table corner.
79.
Shem Trotman and Jason
Kooger got their shanks out right away.
80.
I yelled at Jason
McGowan to back away several times, but he wouldn’t.
81.
Jason McGowan went up
to the billiard table to confront them.
82.
Shem Trotman and Jason
Kooger were behind the billiard table and Jason McGowan was in front.
83.
The billiard table
separated them but Shem Trotman and Jason Kooger advanced toward Jason McGowan
on each side.
84.
I saw Jason McGowan
kick the recycling box towards Jason Kooger.
85.
After that I saw Officer
Karine Maloney (Alpha 21) “gassing” the Federal gas gun in the direction
of Shem Trotman and Jason Kooger to get them to stop.
86.
Patrice Munger also
fired several warning shots to stop the confrontation but they did not stop.
87.
All of these measures
taken by the team to stop the confrontation were unsuccessful.
88.
The confrontation
continued.
89.
So I fired two (2)
more warning shots over Shem Trotman and Jason Kooger but it was useless, they
would not stop.
90.
Shem Trotman and
Jason Kooger were determined to go after Jason McGowan.
91.
I clearly saw that
Shem Trotman and Jason Kooger were both armed with shanks and that Jason
McGowan had no weapon.
92.
We had tried using
several methods to stop them, but they continued.
93.
I sincerely believed
they were going to kill Jason McGowan or seriously injure him.
94.
If Shem Trotman and
Jason Kooger had managed to jump Jason McGowan and a physical fight with
weapons ensued, it would have been very difficult if not impossible for me to
have stopped them.
95.
The outcome would
probably have been the death of Jason McGowan.
96.
I made several
attempts to stop them; if I hadn’t taken action right then we would have lost
complete control. Shem Trotman and Jason Kooger were close to Jason McGowan and
were ready to jump him and attack him with their shanks.
97.
At that moment, Shem
Trotman was close to Jason McGowan, I didn’t see any other alternative to stop
him; I had already fired four (4) warning shots.
98.
Shem Trotman left me
no other choice but to use my weapon against him in order to stop him.
99.
So I shot him in the hand
that was holding the shank.
100.
I made the decision
because I had to stop Shem Trotman before someone got killed.
101.
I never felt that Shem
Trotman and Jason Kooger were at risk or in danger from Jason McGowan.
102.
I felt there was a
duty to protect Jason McGowan—who was definitely the victim.
103.
According to the
Situation Management Model, I was still at the ultimate step, that is, the use
of weapons.
104.
At no time did Shem
Trotman and Jason Kooger give me a chance to reassess the situation management
options to de‑escalate.
105.
Patrice Munger and I
fired several warning shots that had no effect on Shem Trotman and Jason Kooger.
With the warning shots they should simply have stopped.
Analysis
Applicable law:
[18]
Although the applicant
would have preferred the Court to adhere mostly to a line of case law, that, in
analyzing section 25 of the Criminal Code, RSC, 1985, c C‑46
(the Criminal Code), places a shared burden of proof on both parties, it
appears to this Court that the present matter calls for the approach taken by
this Court in June 2005, when it had to assess, in a correctional setting, the
civil liability of the respondent in an action for damages initiated by an inmate
of a federal penitentiary in Quebec on the basis that prison authorities could,
and should, have prevented the applicant’s assault by another inmate.
[19]
Further, I am of the
view that the final conclusion of the Court in the present matter would have
been the same even if it had pursued the analysis found at paragraphs 41
to 43 of Bevan v Ontario, 2010 ONSC 3812 with regard to
section 25 of the Criminal Code.
[20]
Thus in Aubin v Canada,
2005 CF 812, Justice Lemieux of this Court set out, at
paragraphs 117 to 121 and 126, the following principles:
[translation]
[117] The law and jurisprudence have long recognized the State’s
responsibility to inmates in correctional institutions. This responsibility is
in fact a vicarious liability since the State is answerable to for the actions
of its servants: correctional officers.
[118] Justice Hall, on behalf of the Supreme Court of Canada in R.
v. MacLean, [1973] S.C.R. 2, adopted the reasoning of Justice
Cattanach of this Court in Timm v. The Queen, [1965] 1 Ex.C.R. 174,
as follows:
The
responsibility of the Crown towards inmates of penal institutions was correctly
stated by Cattanach J. in Timm v. The Queen,
at p. 178, as follows:
Section 3(1)(a)
of the Crown Liability Act S.C. 1952-53, c. 30 provides as follows:
“3. (1) 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
(a) in
respect of a tort committed by a servant of the Crown, …”
and section 4(2)
provides,
“4. (2) No
proceedings lie against the Crown by virtue of paragraph (a) of
subsection (1) of section 3 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 his personal representative.”
The
liability imposed upon the Crown under this Act is vicarious. Vide The King v. Anthony and
Thompson, [1946] S.C.R. 569. For the Crown to be liable the suppliant must
establish that an officer of the penitentiary, acting in the course of his
employment, as I find the guard in this instance was acting, did something
which a reasonable man in his position would not have done thereby creating a
foreseeable risk of harm to an inmate and drew upon himself a personal
liability to the suppliant.
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.
[119] Under Quebec law, (see Baudouin, La responsabilité civile, 6th edition, Éditions Yvon
Blais) three essential conditions
must be met before extracontractual civil liability becomes engaged: (1) fault;
(2) injury; (3) a causal link between the fault and the injury.
[120] In Baudouin, supra, the authors explain, at paragraph 88,
that under Quebec law, liability is based on fault, i.e. [translation] "behaviour that is
inconsistent with standards generally accepted by the jurisprudence or, as is
now stated in section 1457 C.c., where the person does not abide by
the rules of conduct which lie upon him, according to the circumstances, usage
or law".
[121] In particular, they describe extracontractual civil
fault as [translation] "consisting
of the gulf separating the behaviour of the officer from the abstract and
objective behaviour of a reasonable, prudent and diligent person" in
the same circumstances.
…
[126] The burden is on the applicant to establish, on a balance of
probabilities, the existence of a fault giving rise to damages and liability.
[Emphasis added.]
[21]
In short, it must
therefore be determined whether, on the evening of January 8, 2007, the
correctional officers, including their supervisor, Mr. Laberge, acted as
reasonable, prudent and diligent officers would have acted under the same
circumstances (the applicable standard of conduct).
[22]
If the applicable standard
of conduct has been met, there is no fault on the respondent’s part and the applicant’s
action will have to be dismissed.
Application of the standard of conduct
applicable to the facts
[23]
The applicant submits
that, before even considering whether officers Munger and Beaulé respected the
applicable standard of conduct during the Main Altercation, it is clear that
the penitentiary authorities, allegedly did commit one or several errors in
what the Court will refer to as the management of the gymnasium throughout the
evening of January 8, 2007.
[24]
Without being too
dismissive here, it is interesting to note that the failings described below
were raised by the applicant not in his statement of claim but in his pre-trial
conference memorandum.
[25]
In addition, these
failings were drawn either from observations noted by the warden in his report
written in the days following January 8, 2007 (the Warden’s Report) or
from the findings of the board of investigation formed in the months after
January 8 and tasked with reviewing, at large, and in a thorough
manner, the tumultuous events that evening in January 2007 (the Board of
Investigation Report).
[26]
The central
complaint, on the one hand, regards the hour and a quarter delay between the
first incident and the start of the General Return to Cells, and on the other,
on the fact that the protagonists were not ordered to return to their cells
even before the General Return to Cells was announced to the other inmates.
[27]
On these and other
aspects, the following is written at page 5 of the Warden’s report (see
Exhibit T‑23 in the List of Exhibits):
[translation]
The forthcoming investigation will need to consider the reasons why nearly
an hour and a quarter had elapsed before the inmates began returning to their
cells (hence, before the aggressors were intercepted and placed in
administrative segregation) and the first of the assaults. Our analysis leads
us to find that a succession of events resulted in a reactive approach being
taken by the acting COS in charge at the time of the incidents. While we
understand that the first two injured inmates (Sparks and Coldros) needed
immediate medical attention and that the focus was on providing such assistance,
it is difficult to fathom why no one attempted to get the aggressors to return
to their cells. In defence of the COS, the fact that 3 escort teams
(9 officers) were monopolized and difficulties calling in additional staff
to proceed with the interventions with an optimal deployment of personnel
created difficulties and delays. We believe, however, that efforts could have
been made based on normally known practices (use of members of the inmates’
committee or a negotiator, or simply issuing orders over the loudspeakers).
While the COS could (or should) have taken a step back to coordinate
everything, we believe what occurred reflects a certain lack of experience (he
was a COS in training) and that the staff did not necessarily need to wait for
orders. AC‑01s and AC‑02s are trained to take required measures
independently, but it seems that a culture of waiting for direction has become
entrenched. Under the circumstances, we can understand the first half-hour
delay, but the following fifty minutes or so are difficult to comprehend. However,
we cannot conclude with any certitude that this would have prevented the last assault
or the firing of several shots, but question needs to be asked in order to draw
lessons from the situation, inasmuch as it concerns the roles of both the COS
and the officers.
[Emphasis added.]
[28]
As for the delay in
calling the General Return to Cells, the respondent submitted as evidence the
affidavit of Sylvain Laberge, the SOC referred to in the passage cited above.
[29]
In his affidavit, Mr. Laberge
describes his functions as Correctional Operational Supervisor (COS) during his
shift on January 8, 2007. The various functions are described at
paragraphs 10 to 13 of the affidavit:
[translation]
10. My role consisted of taking
responsibility of managing the institution in the absence of management
(delegation of power).
11. I was to ensure that operations
ran smoothly and prepare the Roll Call for the next shift (make sure all
employees were present and make sure all positions were covered).
12. In addition, I had to supervise
all areas of the institution.
13. Throughout the course of that
evening I had to supervise, manage and take several measures following successive
armed assaults committed by Shem Trotman and/or Jason Kooger in gymnasium 240,
all of which is described in greater detail in my report, Exhibit SL‑1.
[30]
He goes on to
describe, forcefully and in detail, how the speed of the assaults on Sparks, then Coldros, reduced the staff he needed and his efforts following the first
assaults to reconstitute an effective team.
[31]
At the moment when he
was almost ready to call a General Return to Cells, the assault on
Hébert-Plouffe occurred, which further delayed things, namely, the General
Return to cells, which happened at 8:40 p.m.
[32]
Although the comments
reproduced from the Warden’s Report are interesting, as it was emphasized in
the excerpt cited, the Court considers these comments as noting the lessons to
be drawn from the situation; therefore as lessons learned for future reference.
[33]
However, upon
weighing the evidence, I do not find that it would have been possible to have
called the General Return to Cells earlier, nor do I find in the least that Mr. Laberge
committed an error in failing to meet the applicable standard of conduct.
[34]
The Court is of the
view that above all it was the applicant, through his repeated assaults on the
evening of January 8, 2007, who in fact reduced the available staff and
forced the prison authorities, in the person of Mr. Laberge, to have to
delay calling a general return to cells until approximately 8:40 p.m.
[35]
Moreover, I believe
there are grounds to go further in our conclusions.
[36]
As the last part of
the Warden’s report cited above suggests, I too, after my assessment, find that
even if any other measures had been considered in an attempt to, among other
things, order the Return to Cells earlier, none would have prevented the Main
Altercation.
[37]
Indeed, it is clear
from the testimony of all of the officers on the walkway and assigned to
supervise the gymnasium, and from my review of the evidence as a whole, that
all of the belligerents who ended up participating in the Main Altercation were
actively looking to and absolutely wanted to square off with each other.
[38]
As evidence of this,
they all remained in the gymnasium after the General Return to Cells at 8:40 p.m.,
waiting to do battle, which they did at approximately 8:55 p.m.
[39]
Had the General
Return to Cells been called earlier or had the belligerents in the Main
Altercation been ordered to return before the other inmates, according to my
assessment, none of theses measures would have led these same persons to obey
and not face off against one another.
[40]
In this regard, and
as the respondent noted in oral argument, if, following the McGowan assault (at
approximately 8:22 p.m., see paragraph [10], supra), warning
shots with live ammunition fired close to the belligerents had no practical
effect, any lesser form of intervention, such as the intervention of the inmates’
committee, etc., would have been, on a balance of probabilities, doomed to
failure.
[41]
Even if after the
fact and in retrospect one could undertake a painstakingly thorough analysis
that would identify the failings in the management of the gymnasium on the
evening of January 8, 2007, at the end of the day I do not find, contrary
to the applicant’s assessment, that the prison authorities allowed the
situation in the said gymnasium to fester.
[42]
As the Superior Court
of Quebec noted in Gignac c Trois-Rivières (Ville de), 2010 QCCS
2999 (CanLII), with regard to the work of police, a context very similar
to the one here, we must avoid assessing the work of such people after the
fact, or in hindsight as they say in English:
[translation]
[73] The conduct of the police when faced with the suspect’s refusal
to surrender himself to them must be evaluated having regard to the state of
mind of a reasonable person reacting not to what was discovered after the incident,
but to what the suspect’s conduct would lead them to believe at the very moment
of the incident. [Footnote omitted.]
[43]
Finally, the
preceding reasons give no credence to the idea that Mr. Laberge breached their
situation management model (the Management Model) which, as the Court
understands, calls for all correctional officers in any intervention situation
to constantly evaluate and reassess their measures based on the escalation, or
de-escalation, of an incident.
[44]
However, with respect
to the facts surrounding the Main Altercation itself, the applicant argues in
his affidavit-in-chief, and argued in his testimony before the Court, that
McGowan must be viewed as the aggressor, and not as a victim. The applicant
further argued that it should be noted that McGowan was also armed with a shank.
[45]
A careful review of
the video of the Main Altercation does not allow one to completely discount the
applicant’s version of events.
[46]
Indeed, as for
McGowan’s role in the Main Altercation, the video shows McGowan approaching the
billiard table where the applicant and Kooger were located a number of times
and seeking, rather than avoiding the confrontation.
[47]
Furthermore, McGowan
had previously refused to comply with the order to leave the gymnasium and
seemed in the lead-up to the Main Altercation to move towards the applicant and
Kooger in response to a third inmate telling him to either leave the gymnasium
or go and settle matters with the applicant.
[48]
Nonetheless, one
cannot help but conclude from the same video that the applicant and Kooger can
also be seen to be the aggressors because each one walks around their side of
the billiard table right before the shot is fired at the applicant. In
addition, just before the shot, the applicant makes a gesture towards McGowan
with his hand that the Court interprets as being an invitation to fight.
[49]
As for whether
McGowan was armed or not, images from the video do not allow the Court to
decisively conclude one way or another. Indeed, on one hand, one cannot tell
from these images whether McGowan is holding a shank in his right hand. On the
other hand, during the relevant periods of the Main Altercation, McGowan moves
around while seemingly keeping his right hand in the pocket of his pants. Was
he holding a shank in his right hand at the time, hidden in his clothing in
such a way as to hide the blade or point of the weapon under his sleeve? Possibly.
[50]
To support his
position that McGowan was armed, the applicant asserted at trial that this must
have been the case because McGowan must have known that the applicant was armed
since he had been assaulted by him earlier in the evening (see the McGowan
assault, paragraph [10], supra).
[51]
According to the applicant,
it would have then been suicidal for McGowan to advance toward the billiard
table in the lead-up to the Main Altercation if he was unarmed.
[52]
If one were
unfamiliar with prison culture, this point of view has a certain persuasiveness
to it. However, both Officers Beaulé and Munger, when presented with
essentially the same theory in cross-examination, were quite categorical in
their view that once McGowan had been clearly challenged by inmate Duguay to go
and settle his score with the applicant and Kooger, that McGowan, being subject
to the “Con Code”, had no other choice – or be disgraced in the eyes of
the other inmates – than to go up to the applicant and Kooger and confront
them, whether he, McGowan, was armed or not.
[53]
Moreover, certain
other factors that were noted after the gunshot that struck the applicant tend
to show that McGowan was not armed. First, right after the shot was fired, the video
shows McGowan leaning down near the billiard table to pick up what witnesses
would later describe as the shank that had just fallen from the applicant’s
right hand. Why then would McGowan have gone to all the trouble of picking up
this shank if he already had one in his possession?
[54]
In addition, the testimony
of COS Laberge identified the source of the three shanks found following a
search of the inmates and gymnasium. None of them can be traced back to
McGowan. The presence of any additional shank, and the underlying assumption
that it would have belonged to McGowan, have not, in the Court’s view, been established.
[55]
The Court finds,
however, that a definitive answer to these questions involving McGowan is not
necessary given that it must, above all else, examine the events surrounding
the Main Altercation not on the basis of a careful, frame-by-frame analysis of
the video of the Main Altercation but on the basis of the speed at which it
actually unfolded and the manner in which this incident was perceived by
correctional officers Beaulé and Munger, whose actions the applicant complains
of.
[56]
In that regard, all
of the assaults discussed earlier and that preceded the Main Altercation led
Officers Maloney, Munger and Beaulé, to varying degrees, to keep an eye on the applicant
and Kooger and to conclude, either by direct view or by reasonable estimation,
that the applicant and Kooger were armed and determined to have it out with
McGowan at all costs.
[57]
As for McGowan,
Officers Munger and Beaulé, the officers who were to a great extent most
involved in the Main Altercation, thought in the heat of action that he was
unarmed since they had not seen a shank in his hands at any time during the
evening of January 8, 2007. Moreover, the Court notes here that when the applicant
admitted in court to the assault on McGowan, which occurred at approximately 8:22 p.m.,
he did not state that McGowan was armed as well.
[58]
As for McGowan’s
aggressive posture seen in the video of the Main Altercation, this aspect in
the heat of action – and to the extent it was even noted by the officers, which
the evidence did not actually show – did not change their perception that
McGowan was faced with the dynamic where, pressured by the “Con Code,” he
had to offer the applicant and Kooger an opportunity to have a
confrontation with him. The officers felt that McGowan was the victim in the
circumstances and that the aggressors were the applicant and Kooger.
[59]
It is this perception
that matters and that the Court considers reasonable to accept. Against this
backdrop, the Court does not find that Officers Munger and Beaulé adopted and
refused to shed a tunnel vision or that they acted outside the bounds of their
Management Model. For the same reasons, I do not feel that these same officers
can be accused of using a double standard with regard to McGowan. The
officers reasonably perceived McGowan to be the victim and the applicant and
Kooger as the aggressors; of course they were not seen to be on the same
footing.
[60]
At no time was it
demonstrated that these two officers had any reason to side with McGowan other
than the moment they thought his life was in danger.
[61]
Thus, Officers Munger
and Beaulé felt that they had to try and prevent the Main Altercation from
playing itself out, in order to ensure McGowan’s protection.
[62]
The testimony of
correctional officer Beaulé reproduced earlier illustrates the step‑by‑step
approach he and his colleagues used in the measures they took to try and get
the belligerents to calm down and move away from each other.
[63]
I am referring here
to verbal warnings, followed by the noise of a siren, and then by the use of cayenne
pepper spray. Numerous warning shots were fired close to the belligerents. All
of this was for naught and the officers felt that the Main Altercation was just
about to erupt.
[64]
They came to the conclusion
that they had no alternative but to use their weapons to fire live ammunition
at those they perceived to be armed aggressors.
[65]
This is when the applicant
was struck in the right hand by Officer Beaulé’s shot.
[66]
The Court feels that
this measure was taken by Officer Beaulé as a last resort after several prior dissuasive
measures had yielded no tangible results. The correctional officers, and Officer
Beaulé in particular, acted incrementally and took a measured approach. Their
actions, in the Court’s opinion, meet the applicable standard of conduct, and
for that matter, subsection 25(3) of the Criminal Code, the Management Model
and Commissioner’s Directive 567‑5 on the use of firearms.
[67]
The Court makes the
aforementioned conclusions about the perception of Officers Munger and Beaulé
despite criticism from the applicant’s counsel regarding their attitude during
cross-examination and in spite of the fact that the wording of their affidavits
is, at times and for all intents and purposes, similar.
[68]
As for their demeanour
or attitude in cross-examination, I find that despite a certain
nervousness that was sometimes expressed as displeasure at being
cross-examined, their attitude cannot be further characterized as a means to
attack their credibility.
[69]
Regarding the similitude
between their affidavits, each affidavit is consistent with the observation
report completed by each officer in the hours immediately following the evening
of January 8, 2007. Moreover, counsel for the applicant had ample time to
cross-examine each officer in Court (including Ms. Maloney and Mr. Laberge),
after the exclusion of witnesses at the start of the trial.
[70]
Thus, in each
cross-examination, witnesses were peppered with all manner of questions to have
them recall different sequences of events and their perception at the time.
Given that the relevant incidents occurred back in January 2007, their
promptness in responding and conduct in general do not leave the Court with the
impression that they made a concerted effort to rehearse their testimony with
each other.
[71]
Therefore, with
regard to the issues to be determined and identified in the order dated
November 9, 2012 that followed the pre-trial conference in this matter:
2. (a) Did the respondent’s
officers commit one or several faults during their intervention?
(b) Was the injury suffered by the applicant
the result of a fault or faults made by the respondent’s officers during their
intervention?
(c) Did the applicant commit a fault and
did he contribute to his own injury and, if so, how should the responsibility
be divided amongst the parties?
(d) Is the quantum of damage suffered
by the applicant fitting and proper?
The Court responds to questions 2(a) and (b) in the negative.
Accordingly, there is no need to respond to questions 2(c) and (d) to
dispose of the present action.
[72]
Therefore, for the
aforementioned reasons, the Court must dismiss the applicant’s action, with
costs.
“Richard Morneau”
Montréal, (Quebec)
February 20,
2014
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