Date: 20021112
Docket: T-1488-94
Neutral citation: 2002 FCT 1170
Toronto, Ontario, Tuesday, the 12th day of November, 2002
Present: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
ERNEST GUITARE
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
[1] On February 10, 1994, Ernest Guitare ("Guitare") was viciously assaulted by a fellow inmate while he was occupying his cell in the segregation unit at the Millhaven Institution ("Millhaven"). Guitare brings this action against the defendant Crown to recover damages for the injuries he sustained in the attack. He alleges that correctional officers assigned to the unit that day were negligent in failing to keep him safe and in failing to promptly come to his rescue.
[2] The Crown denies that the officers acted negligently and maintains that reasonable care was taken in the circumstances. The Crown asserts that Guitare's injuries were caused by the independent act of a third person and that, in any event, Guitare should be held responsible, at least in part, for his injuries because he brought the attack onto himself.
[3] Guitare and five correctional officers testified at trial. A number of documents were admitted into evidence on consent; however, the parties reserved their right to cross-examine the witnesses on their content. At the request of the Crown, the correctional officers who were called as witnesses are referred to in these reasons by their initials to protect them from potential reprisal by inmates.
Background facts
[4] Since 1985, Guitare has been serving an aggregate sentence of approximately 23 years for dozens of criminal convictions, including break and enter, armed robbery and assault. He was incarcerated in several penitentiaries, including Millhaven, before being released on parole in 1992. In March 1993, he was arrested for a parole violation and was returned to Millhaven to complete his sentence. Guitare was initially housed with the general population, but was transferred to an administrative segregation unit, called 2-G, in June 1993, after being charged with sexual assault of his cell mate.
[5] Although he was eventually acquitted of the sexual assault charge, Guitare remained in administrative segregation for his own safety. The unfortunate reality is that once an inmate is labelled a sexual offender or, in prison jargon, a "hound", he can never again feel safe in the penitentiary. Consequently, special measures must be taken by prison authorities to prevent retaliation from other inmates. Administrative segregation proved to be the only option for Guitare, since reintegration into the general population carried too high a risk.
[6] The 2-G unit is a open range, with approximately 15 cells on each side over two tiers. All inmates remain confined in an eight by ten foot cell. Any movement is continually monitored by two correctional officers from a glass-enclosed control station, called a "bubble", located at one end of the range. The correctional officers who work at the periphery of the range are not armed; however, they have access to mace and billy clubs in case of trouble.
[7] To minimize the possibility of physical interaction between inmates, the unit developed a policy that allows for the movement of only one inmate on the range at one time, with all other inmates remaining locked in their cells. A number of defence witnesses testified that there were exceptions to the unit policy, particularly as it related to the range cleaner. The cleaner is an inmate whose duties include serving meals, doing laundry and performing general clean up. He occupies a position of trust and, according to some officers, is generally considered to be compatible with the other inmates on the range. When delivering laundry to an inmate, the cleaner would usually slip the bundle through the food slot of the cell door. If, however, the slot happened to be locked, the cleaner was required to leave the laundry in front of the inmate's door and then return to his cell. The recipient was then allowed to retrieve his laundry through a gap of his cell door, cracked open remotely by the control station officer.
[8] On occasion, the cleaner was allowed to remain on the range while other inmates were given access. It appears, however, that this was a departure from the unit policy and was only allowed if a compatibility assessment, albeit an informal one, was first conducted. The control station officer would therefore have the discretion to deviate from the policy if he or she was satisfied that there was no incompatibility between the cleaner and the inmate. The officer in charge of the unit could also authorize the presence of more than one inmate on the range once adequate safeguards were put in place. I conclude however that it was standard practice in the 2-G unit that the cleaner be locked in his cell before another inmate was released onto the range.
Facts preceding the assault
[9] In the afternoon of February 10, 1999, Officer R.B. was working in the control room. An inmate named Gray was serving as cleaner. Officer R.B. was not familiar with Gray. He had no specific knowledge of Gray's compatibility with other inmates; nor, for that matter, of his lengthy history of assaultive behaviour. Gray was standing in the hallway talking to an inmate across from Guitare's cell. Guitare could only hear snippets of their conversation; but at one point, he thought he heard Gray use the term "hound". Convinced that Gray was referring to him, Guitare called Gray over to his cell and said: "Are you talking about me?" Gray apparently bristled at the question and a heated argument quickly ensued.
[10] Since Gray was not called to testify, the only direct account of what was said between the two came from Guitare. Gray, who is black, would later claim that he had been provoked by Guitare, presumably by a racist comment he made. Guitare denies the allegation and insists that Gray was the instigator. In cross-examination, Guitare conceded however that he may have used a racial slur in the heat of the moment. The argument quickly degenerated into a shouting match, with both parties swearing and insulting each other. Guitare, considering himself immune from physical harm from the safety of his cell, no doubt felt empowered to goad on Gray. Within seconds, Gray became so enraged that he threatened to have Guitare's door opened and to kill him.
[11] Gray immediately tried to carry through with his threat. He rushed to the laundry room and, as a ruse, threw a couple of blankets into a bag and placed them in front of Guitare's cell door. He then called out to Officer R.B. to open Guitare's door so that he could grab his laundry. According to Officer R. B., Gray knew the "routine" for laundry delivery. Gray started back to his cell and stepped in. Officer R.B. locked Gray's cell door, or so he thought, and he then proceeded to crack open Guitare's door. Officer R.B. candidly admitted in cross-examination that he couldn't confirm whether Gray's door had in fact been locked before he opened Guitare's door. Evidently, it was not, since Gray managed to push open his door and rush back onto the range. In the absence of any other explanation, I find that Officer R.B. failed to properly secure Gray's cell door and prematurely opened Guitare's door, in breach of the unit policy, thereby placing Guitare in danger.
[12] After exiting his cell, Gray ran over to Guitare's cell, pulled Guitare out onto the range and immediately started punching and kicking him. Officer R.B. witnessed the assault, but could do little as he could not leave his post unattended. He immediately used the intercom to order Gray and Guitare to stop fighting and to return to their cells. He then called his supervisor to inform him of the situation, as well as Officer R.C. for assistance. Within seconds, Officers R.C. and K.B. arrived at opposite ends the range. Both officers concluded that they could not safely enter the range without additional back-up. They both shouted direct orders to the two inmates to stop fighting, but to no avail. The unit manager, Officer D.C., agreed with the officers' assessment that it was to dangerous to enter the range, adding that staff safety was a very high priority.
[13] By all accounts, Guitare could do little but defend himself from the pummelling by the much bigger and stronger Gray. He was held on the floor and repeatedly punched by Gray for approximately two to three minute. Gray eventually tired, and both inmates eventually returned to their cells without any physical intervention by the officers.
[14] Within a few hours, Guitare was seen by a doctor and treated for facial lacerations, abrasions on his left shoulder and a broken tooth. He remained overnight in the prison hospital for observation. Guitare quickly recuperated from his injuries; however, he experienced some migraine headaches during the next six months that he attributes to the assault. Guitare later refused to cooperate with the investigation into his assault for fear of repercussions. As for Gray, he was found guilty of the charge of fighting with another inmate following a disciplinary hearing,
Analysis and conclusions
[15] The law is well settled that to recover for negligence, a plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. The Crown concedes that prison officials owe a duty of reasonable care to safeguard prisoners in their custody or control from attack by other prisoners. This duty of care will vary commensurate with the risk to the inmate.
[16] Because to his reputation as a sexual predator, Guitare had an elevated risk of immediate harm from other inmates. The danger to Guitare was recognized by prison authorities and resulted in his involuntary placement in administrative segregation. It was therefore incumbent on correctional officers in the segregation unit to exercise great care in monitoring Guitare's movements and in limiting as much as possible any opportunities for retaliation by other inmates.
[17] Since Officer R.B. had no information suggesting otherwise, he should have automatically considered Gray a potential threat to Guitare. In any event, Officer R. B. clearly intended to lock Gray in his cell before opening the door for Guitare, in accordance with the unit policy. As stated earlier, I conclude that Officer R.B. erred in failing to lock Gray's door before cracking open Guitare's door. The error appears to have been nothing more than a lapse of judgment. Gray's escape and subsequent assault of Guitare were, however, direct and foreseeable consequences of Officer R.B.'s failure to strictly adhere to the safety measures designed to protect inmates from each other.
[18] Guitare claims that the responding officers were negligent in failing to physically intervene to stop the assault in a timely manner. Yet, institutional procedures prohibited the two correctional officers who responded to the call for assistance from forcibly engaging the two inmates until a team of a sufficient number of officers had assembled. The deployment of force may very well have reduced the extent of Guitare's injuries; however, in dealing with agitated detainees, correctional officers must not be forced to unduly expose themselves to danger. Here, the officers determined that there was no threat to Guitare's life and that verbal warnings were sufficient to break up the fight. Due deference should be accorded to the officers' exercise of judgment in such a volatile environment. While I am sympathetic to Guitare's plight, I conclude that the officers' response to the incident was reasonable in the circumstances.
[19] In terms of contributory negligence, it is true that, had Guitare not challenged Gray, the assault probably would not have occurred. The question, then, is whether Guitare's own careless or provocative conduct was a contributory causal factor. As a general rule, a party has no obligation to exercise care or to take precautions to avoid harm from an intentional tortfeasor. The rule may not apply, however, when the victim provokes, or is found to have contributed to provoking, the intentional tort. The theory behind the defence of provocation is that because the victim provoked the injurious conduct, he should not be able to recover.
[20] Provocation, like complicity, is an affirmative defence. The Crown had the burden of proof, but failed to establish that Guitare provoked, or contributed to provoking, the assault. Since Gray was not called to testify, the Court is left with Guitare's version of the events. Based on Guitare's uncontradicted testimony, Gray could easily be viewed as the instigator of the incident. Gray's taunting comment within Guitare's earshot was probably intended to trigger a response. Guitare cannot be faulted for vigorously defending his honour, especially since he reasonably perceived himself to be immune from harm behind the steel barrier of his cell door. In my view, it was solely the intervening actions of Officer R.B. which exposed Guitare to harm.
Damages
[21] There is no dispute that, as a result of the assault, Guitare suffered contusions, lacerations, and a broken tooth. It would appear that Guitare also experienced increased headaches for approximately six months after the assault. There is no evidence, however, that any of Guitare's injuries had any significant or lasting effect on his ability to carry out his daily activities. Based on the range of damages awarded in similar case, I would assess Guitare's general damages for pain and suffering relating to his injuries at $5,000.00.
JUDGMENT
1. The Plaintiff is granted judgment against the Defendant for general damages in the amount of $5,000.00.
2. If unable to agree, the parties may make written submissions with respect to prejudgment interest and costs within 15 days from the date of this judgment.
"Roger R. Lafrenière"
Prothonotary
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: T-1488-94
STYLE OF CAUSE: ERNEST GUITARE
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
DATE OF HEARING: MONDAY, JULY 16, 2001
PLACE OF HEARING: KINGSTON, ONTARIO
REASONS FOR JUDGMENT
AND JUDGMENT BY: LAFRENIÈRE P.
DATED: TUESDAY, NOVEMBER 12, 2002
APPEARANCES BY: Mr. Chad T. Carter
For the Plaintiff
Mr. Douglas R. Haunts
For the Defendant
SOLICITORS OF RECORD: RACIOPPO, ZUBER, COETZEE, DIONNE
Barristers & Solicitors
574 Princess Street, Suite 201
Kingston, Ontario
K7L 1C9
For the Plaintiff
DOUGLAS R. HAUNTS
Barrister & Solicitor
178 Ontario Street, Suite 203
P.O. Box 1898
Kingston, Ontario
K7L 5J7
For the Defendant
FEDERAL COURT OF CANADA
Date: 20021112
Docket: T-1488-94
BETWEEN:
ERNEST GUITARE
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA
Defendant
REASONS FOR JUDGMENT
AND JUDGMENT