Toronto, Ontario, October 13, 2005
PRESENT: MADAM PROTHONOTARY MILCZYNSKI
BETWEEN:
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] This is an action by the Plaintiff, Vlado Maljkovich, for damages. Mr. Maljkovich claims he suffered as a result of certain actions and/or omissions of the Correctional Service of Canada (the "CSC") while he was in CSC custody at the Fenbrook Correctional Institution in Gravenhurst, Ontario ("Fenbrook"). Mr. Maljkovich alleges that he has an allergy to tobacco smoke such that exposure to it causes him to experience significant and immediate discomfort, including headache, nausea and irritation of the throat.
[2] The matter of the possible long-term deleterious effects of exposure to second-hand tobacco smoke was also raised. Mr. Maljkovich claims that the CSC had a statutory and common-law duty to protect him at Fenbrook from exposure to tobacco smoke and failed to take reasonable steps in that regard. He claims that the CSC failed to adequately designate, provide or enforce the maintenance of smoke-free areas within the Fenbrook facility.
[3] The issues in this action are whether CSC has breached any duty to Mr. Maljkovich with respect to his exposure to second-hand tobacco smoke at Fenbrook, and if so, what damages might reasonably be claimed. Mr. Maljkovich has also raised a Charter claim, alleging that his exposure to second-hand tobacco smoke constitutes a violation of section 12 of the Canadian Charter of Rights and Freedoms.
[4] For the reasons set out below, I find in favour of the Plaintiff.
FACTS
[5] The facts are relatively straightforward in this proceeding. Mr. Maljkovich is currently an inmate of the Pittsburgh penitentiary operated by the CSC. He is serving a life sentence after being convicted on August 29, 1995 of second degree murder. He is ineligible for parole, and must remain in the custody and care of the CSC until he has served fourteen years.
[6] During his incarceration as a federal inmate, Mr. Maljkovich has been housed at the Millhaven, Warkworth, and Kingston Penitentiaries, and at Fenbrook. He was in Fenbrook for just over three years, from February 9, 2000 to September 4, 2002, and from October 16, 2002 until July 29, 2003. The parties agree that his claims in this action are confined to those periods of time he was incarcerated at Fenbrook.
[7] Fenbrook is a medium-security facility, and is the most recently constructed federal prison. It began receiving inmates in or about the fall of 1998.
[8] There are four separate buildings at Fenbrook in which inmates are housed. They are named Edgewood, Falcon, Granite and Horizon. During his stay at Fenbrook, Mr. Maljkovich was housed in the Edgewood, Falcon and Horizon buildings.
[9] Each of these buildings has a number of separate living quarters or apartments referred to as "ranges". There are no non-smoking buildings, but each building has designated non-smoking ranges. Each range has a large solid door and inside are five to seven rooms or cells that may be single or double occupancy. Each room or cell has its own door, and a window that may be opened by the inmate.
[10] Each of the buildings has ventilation and air return systems to circulate and replace inside air with outside air, but the systems cannot always eliminate the presence of some second-hand smoke. In winter months in particular, inside air - including that from smoking ranges is circulated into non-smoking ranges.
[11] At all times relevant to this action, Fenbrook had a smoking policy that permitted inmates to smoke in their individual rooms on designated smoking ranges, or while outside. There were, however, various places where non-smokers would be exposed to second-hand tobacco smoke. Inmates could smoke freely outside. Further, taking into account both parties' evidence, there were transgressions of the smoking policy by inmates indoors - there were incidents of inmates smoking in non-designated areas and on non-smoking ranges.
[12] Although I accept that those inmates found in violation of the policy were dealt with through warnings or other appropriate disciplinary measures, nonetheless, smoking in violation of the policy needed to be observed by the guards to be stopped, or it needed to be brought to their attention. Mr. Maljkovich was thus put in the unenviable position of having to complain about his exposure to second-hand smoke and bring individual offenders to the attention of the authorities - actions which obviously did not endear him to his fellow inmates. Mr. Maljkovich complained constantly about tobacco smoke. There was no other evidence regarding how CSC enforced the smoking policy at Fenbrook, through measures that might have been undertaken such as smoke detectors and/or alarms.
[13] The problem with second-hand smoke was also brought to CSC's attention on behalf of Mr. Maljkovich. By letter dated July 18, 2001, Mr. Maljkovich's then counsel wrote to the warden of Fenbrook. Portions of this letter warrant reproduction:
...Mr. Maljkovich is allergic to cigarette smoke, and has been for nearly 25 years. I attach a copy of a note from his doctor confirming this fact.
At present Mr. Maljkovich is on F-Unit, C-range with six other inmates, every one of whom is a chain smoker. He was transferred there involuntarily from F-Unit, E-range having been transferred there involuntarily from E-Unit, C-range.
It has been drawn to the attention of the institutional authorities repeatedly that, in addition to the usual, serious deleterious effects of second-hand cigarette smoke which one might expect to be experienced by a non-smoker, Mr. Maljkovich experiences an allergic reaction to exposure to cigarette smoke. Mr. Maljkovich has filed numerous inmate requests over the last few years asking for attention to this issue.
Please explain why, in the circumstances, Mr. Maljkovich has been placed in exactly the worst situation for his health, given his allergy to tobacco smoke?
Please advise also why the concerns of Mr. Maljkovich about his exposure to tobacco smoke have remained unaddressed over the last few years? I am particularly interested in why there has been no resolution of this issue, in light of the proposal of the Inmate Committee, made in February, 1999, that a Non-Smoking Unit be established. How has that proposal been addressed by the institution?
[14] The response to the above is contained in a memorandum to Mr. Maljkovich dated July 30, 2001 from the Unit Manager of the Fenbrook Falcon Unit, which states that Fenbrook is "in the process of following through with our plan to make C Range a non-smoking range. This task should be accomplished by early next week. Following this, we intend to make D Range non-smoking thus resolving any cross-ventilation problems....Please rest assured that your medical concerns and needs will be addressed as expeditiously as is possible".
[15] The steps outlined in the above memorandum, however, were not implemented. Rather, on August 2, 2001, three days after Mr. Maljkovich received the memorandum, he was moved from the Falcon building and into the Horizon unit. Mr. Maljkovich's evidence was that this was done at night, which according to the Defendant's evidence, was done for reasons of personal safety, to protect Mr. Maljkovich from other inmates who did not like his constant complaints about their behaviour or actions, including his complaints about their smoking. The transfer also did not solve the problem of his exposure to second-hand tobacco smoke. Mr. Maljkovich continued to be exposed to second-hand smoke in non-designated areas.
LEGISLATION
[16] Excerpts of the relevant legislation governing the treatment of inmates is as follows:
Corrections and Conditional Release Act:
s.70. The Service shall take all reasonable steps to ensure that penitentiaries, the penitentiary environment, the living and working conditions of inmates and working conditions of staff members are safe, healthful and free of practices that undermine a person's sense of personal dignity.
Corrections and Conditional Release Regulations:
ss.83(1) The Service shall, to ensure a safe and healthful penitentiary environment, ensure that all applicable federal health, safety, sanitation and fire laws are complied with in each penitentiary and that every penitentiary is inspected regularly by the persons responsible for enforcing those laws.
(2) The Service shall take all reasonable steps to ensure the safety of every inmate...
DISCUSSION
[17] Counsel for the Defendant denied at trial that Mr. Maljkovich has an allergy to tobacco smoke. While the Plaintiff failed to adduce any evidence of specialist allergy testing or specific results of allergy testing, there is sufficient evidence before me that Mr. Maljkovich has, if not an allergy to tobacco smoke, a significant physical reaction when exposed to it. Mr. Maljkovich testified that he suffers from nausea, headache and irritation of the throat and that exposure to second-hand tobacco smoke makes him feel ill. Mr. Maljkovich's testimony on this point is credible.
[18] I am further persuaded by the evidence contained in the affidavit of Dr. Allen McBride sworn July 15, 2004, Dr. McBride's letter to Mr. Maljkovich's counsel dated April 4, 2003, the note dated April 7, 1998 from Mr. Maljkovich's earlier physician, Dr, Josip Gamulin, which was attached as Exhibit "B" to the affidavit of Belinda Roscoe, a CSC nurse, sworn July 15, 2004 and, most importantly, the correspondence and memorandum referred to above, in which Fenbrook expressly acknowledges Mr. Maljkovich's medical needs and concerns as it relates to tobacco smoke. Moreover, I am satisfied that even without an allergy to tobacco smoke, Mr. Maljkovich was, at least in the non-smoking areas of the prison, entitled to live without exposure to second-hand smoke, and without the onus of having to complain about his fellow inmates.
[19] Fenbrook owed Mr. Maljkovich a duty of care under the Corrections and Conditional Release Act, the Regulations and under the common-law to incarcerate him in conditions that were healthful and that did not cause him to suffer physical discomfort and upset. I find that CSC failed in this duty to the extent it did not take what would have been reasonable steps to ensure the smoking policy was enforced or otherwise ensure that Mr. Maljkovich was not exposed to second-hand smoke. It is unreasonable to expect individual inmates to report on other inmates, or to have constantly moved Mr. Maljkovich from unit to unit or from range to range. It is also unfortunate that in its most modern facility, air circulation systems would move smoke into non-smoking areas. In that regard, there was evidence that correction or re-fit of the air circulation systems would be prohibitively expensive. Even so, CSC could have taken other less expensive and reasonable steps, including better monitoring of non-designated areas or the possible installation of smoke detectors. There was no evidence that any of these options were explored.
[20] A reasonable option was, however, raised at trial by counsel for the Defendant in her cross-examination of Mr. Maljkovich, and as has since been formally announced. In an announcement provided to the Court by counsel for the Defendant following the trial, and which on consent of the parties now forms part of the trial record, CSC has announced that effective January 31, 2006, smoking inside all federal institutions and correctional centres will be prohibited. Smoking will only be permitted in designated outdoor areas. The announcement specifically states that the goal of the new policy is to eliminate exposure to second-hand smoke in all federal penitentiaries. It acknowledges the potential negative impact of exposure to second-hand smoke. It further indicates that the smoking ban is the appropriate response to the public health hazard of tobacco smoke, and permits CSC to carry out its responsibility to set conditions for healthy correctional environments.
[21] With respect to Mr. Maljkovich's Charter claim, it is alleged that his exposure to second-hand tobacco smoke constitutes cruel and unusual treatment or punishment of such a degree so as to outrage standards of decency and violate section 12 of the Charter. I find this clearly not to be the case. Correctional facilities, like society in general, have and continue to grapple with the issue of smoking, placing increasing restrictions and limits on smoking. CSC recognised the problem and had a policy. Although this policy was inadequate to promote a healthful environment and was enforced at least in part by requiring inmates to inform on one another, it was not a situation of deliberate or malicious imposition of cruel and unusual treatment. I find that more could and should have been done with respect to accommodating Mr. Maljkovich and formulating and enforcing a policy consistent with its obligations under the legislation. The shortcomings mean CSC did not fulfill its obligations under the Corrections and Conditional Release Act and Regualtions - they do not amount to cruel and unusual punishment or treatment in violation of section 12 of the Charter.
[22] What is left to determine is the appropriate quantum of damages for the three years that Mr. Maljkovich was incarcerated at Fenbrook. Damages are only for the immediate physical reaction and discomfort that I am satisfied he experienced from being exposed to second-hand tobacco smoke. There was no evidence that Mr. Maljkovich has or is suffering from any life-threatening or chronic medical condition as a consequence of his exposure to tobacco smoke. Mr. Maljkovich in fact has a number of pre-existing respiratory or pulmonary risk factors or conditions, such as TB and asbestos exposure which may in future cause him difficulties and which may or may not be exacerbated by his exposure to tobacco smoke while at Fenbrook. This inquiry, however, is speculative and forms no basis for the award. With respect to Mr. Maljkovich's actual losses, some evidence was adduced regarding wages or amounts paid generally to inmates who work or who are classified as unemployed or disabled. There was no evidence, however, as to what Mr. Maljkovich received or earned during any particular timeframe while he was at Fenbrook. There was no evidence as to what Mr. Maljkovich's actual loss of income was, if any, during his time at Fenbrook. The Court cannot speculate or assess any amount of damages for possible pecuniary losses. In the absence of such evidence, I would assess his general damages for the discomfort and stress he suffered at $5,000.00.
JUDGMENT
THIS COURT ADJUGES THAT:
1. The Plaintiff is granted judgment against the Defendant for general damages in the amount
of $5,000.00.
2. Costs of this action are awarded to the Plaintiff; if the parties cannot agree as to the quantum, they may file written submissions, no longer than three pages in length, within thirty days of the date of this judgment.
Prothonotary
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-954-02
STYLE OF CAUSE: VLADO MALJKOVICH
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
PLACE OF HEARING: BELLEVILLE, ONTARIO
DATE OF HEARING: OCTOBER 20, 2004
REASONS FOR JUDGMENT
APPEARANCES:
John L. Hill For the Plaintiff
Roslyn Mounsey For the Defendant
SOLICITORS OF RECORD:
John L. Hill
Barrister and Solicitor
Toronto, Ontario For the Plaintiff
John H. Sims Q.C.
Canada For the Defendant