Date: 19980514
Docket: T-192-95
Ottawa, Ontario, the 14th day of May 1998
Present : The Honourable Mr. Justice Marc Noël
Between:
ERNEST CARON
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
ORDER
The action is dismissed, and the parties will bear their own costs.
Marc Noël
Judge
Certified true translation
Peter Douglas
Date: 19980514
Docket: T-192-95
Between:
ERNEST CARON
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT*
NOËL J.:
[1] The plaintiff was admitted to Donnacona Penitentiary on October 20, 1991. He is suing Her Majesty the Queen for damages resulting from his dismissal from the position he held at this institution on April 5, 1994. He seeks $200 in compensation for each day he had to spend in his cell without work, a total of approximately 650 days, following his dismissal.1
| * All the pleadings in this case were drafted in English, but the plaintiff requested at the hearing that the reasons for judgment be drafted in French. |
[2] The amount claimed by the plaintiff is based on loss of income, injury to his reputation, the curtailment of his freedom and his diminished hope of being paroled.
Facts
[3] The plaintiff was admitted to Donnacona Penitentiary after an involuntary transfer from Archambault Institution. On March 17, 1994, he was assigned to the penitentiary"s laundry as an unskilled laundry worker. He started on March 21, 1994, and a few days later, on March 24, 1994, unauthorized items were discovered in his cell, including 5 pairs of leather gloves, 9 pairs of wool mittens, 10 wool tuques and 11 leather strips. An offence report was then issued alleging possession of contraband contrary to paragraph 40(i ) of the Corrections and Conditional Release Act.2 A guilty plea was entered on March 31, 1994, and it resulted in a sentence of 3 days" detention with loss of privileges.
[4] A few days later, on April 5, 1994, the plaintiff was subjected to a strip search on his way out of the laundry at lunchtime. He was discovered to be wearing three pairs of underpants. An offence report was issued the same day alleging that the plaintiff had been found in possession of stolen property contrary to paragraph 40(e) of the Act.
[5] The plaintiff explained in his testimony before me that he was wearing three pairs of underpants because he suffered from incontinence. He had bladder stones which caused incontinence when he made sudden movements. One of the plaintiff"s tasks at the laundry was to pour cleaning products stored in 50-pound containers.
[6] The plaintiff"s medical condition is well documented. According to his testimony, he had refused before the events of April 5 to undergo an operation recommended by the doctors. The excerpts from the confidential medical file he submitted mention that, throughout the relevant period, his case was being very carefully monitored and he was suffering from hematuria caused by a 5-cm cystolithiasis. He was hospitalized on May 14, 1994 and operated on some time later.
[7] The plaintiff never complained about his condition. Only the doctors knew about it. At the time of the strip search, he was given a chance to explain himself but refused to do so. Three days later, he entered a plea of not guilty without further explanation.
[8] The very afternoon of the search, he was suspended and put into "daytime dead lock".3 The same day, the officer in charge of laundry operations, Michel Dionne, sent the chairperson of the Assignment Board the following memorandum:
| [TRANSLATION] |
| SUBJECT: Dismissal of inmate Caron. |
| This is to inform you that inmate Caron FPS: 932815 has been dismissed from the laundry for the following reasons: |
| Coming out of the workshop for lunch on 94/04/06, inmate Caron was wearing 3 pairs of underpants and had one pair of mittens in his pockets. An offence report was prepared for the incident. |
| Last week, a search of his cell turned up large quantities of several items from the laundry which he had no reason to have in his possession. An offence report was prepared for the incident. |
| Further to these reports for contraband possession and trafficking, we are obliged to dismiss inmate Caron. |
[9] On April 11, 1994, the plaintiff appeared before the Assignment Board,4 which is responsible for assigning work to inmates and for the procedures surrounding hiring and termination of employment in the prison setting. The Board alone has the power to dismiss an inmate from his employment.5 When the plaintiff appeared before the Board, the chairperson was Roland St.-Amour. On this occasion, the plaintiff mentioned his medical problem for the first time to explain why he was wearing three pairs of underpants on April 5. The explanation did not fall on deaf ears, as can be seen from the Board"s decision dated April 14, 1994, which reads as follows:
| [TRANSLATION] You are excluded from the laundry until such time as your offence reports have been dealt with.6 If you are found guilty, you will immediately be dismissed from the laundry for 6 weeks without pay and dead lock during regular working hours. You will also be subject to paragraph 20(b) of Standing Order 865, which provides that any inmate who returns to the work program following a dismissal is given level "2". If you are found not guilty, you will be required to resume your work at the laundry. Once you return to the laundry, if you are found again with unauthorized material, you will be dismissed permanently even if no offence report results. |
[10] It was after this decision that things got complicated. It can be seen from the evidence that Mr. St.-Amour left his position shortly after making this decision. He was replaced on an acting basis by Christine Bélisle. She was unaware of or chose to ignore Mr. St.-Amour"s decision and, on June 1, 1994, made her own decision regarding the plaintiff"s employment:
| [TRANSLATION] On 31.03.94, you were found guilty (3 days" detention, suspended for 30 days with loss of privileges) in respect of a serious report dated 24.03.94 for possession of contraband (unauthorized material). You are withdrawn from your program sector at the laundry for an absence of over 30 days. Furthermore, you have not applied for any assignments. In our view, you have refused to participate in the work program. Pay level 0 is assigned to you pursuant to section 104 of the Corrections and Conditional Release Regulations. You are considered voluntarily unemployed and are confined to your cell during regular working hours. If you wish to change this situation, you need only apply for assignment to one of the positions which will be posted shortly. |
[11] Ms. Bélisle explained in her testimony that this decision was justified by Standing Order 730 on inmate employment, paragraph 30 of which reads as follows:
| [TRANSLATION] Any inmate who is absent from his workplace for more than 30 consecutive days in spite of [sic] reasons beyond his control may be withdrawn from his employment if the section supervisor deems such action appropriate. |
[12] The evidence sheds no light on what became of Mr. St.-Amour"s earlier decision, which appeared to guarantee the plaintiff the right to return to his employment provided he was cleared of the offence of April 5, 1994. Ms. Bélisle did not mention it in her testimony. Mr. St.-Amour stated that he was no longer responsible for the decision and its repercussions on the plaintiff"s employment after leaving his position. As for Jeanette Lussier, the secretary of the Assignment Board at the time, she stated that she was only a subordinate and that it was not up to her to follow up on cases.
[13] The plaintiff, on the other hand, did not forget about Mr. St.-Amour"s decision. On a disciplinary appearance related to another matter on July 21, 1994, he asked the chairperson when the offence report of April 5, 1994 would be heard. He was told the matter was delayed because the witness he wanted to have testify was unavailable.7 On October 10, 1994, having heard nothing yet, the plaintiff submitted a request to prison authorities asking when the hearing would be held and pointing out that more than two months had passed since he was told his witness was unavailable. He received a reply on October 18, 1994, which informed him that the offence report had been withdrawn because it could not be proceeded with within a reasonable time.
[14] Throughout this entire period, the plaintiff remained in "dead lock" awaiting the outcome of the offence report, which he hoped would be favourable and would allow him to return to his position at level 5, the level he had held before his suspension. Meanwhile, he could have applied for other employment, but he would then have been demoted to level 2 in accordance with Standing Order 730.8
[15] Faced with the withdrawal of the offence report and the fact that he could not benefit from the decision of April 14, 1994, the plaintiff submitted a complaint near the end of 1994, which subsequently turned into a grievance. He also filed the present action with the Federal Court in January 1995. His grievance eventually reached the third level and was dismissed on October 30, 1995. Meanwhile, the plaintiff still had not applied for work and thus remained in "dead lock".
[16] After being unsuccessful in the grievance process, the plaintiff brought his problem to the attention of the Office of the Correctional Investigator, where he had greater success. The situation was reviewed again, and the following decision was rendered on July 29, 1996:
| In view of our assessment, it was determined that you should receive a reimbursement at half of pay level 5 for the period from April 6, 1994 to October 18, 1994 (the day you were informed in writing that your outstanding charge of April 5, 1994 had been withdrawn). The amount of this settlement will be credited to your accounts by Donnacona Institution authorities. I believe that, through this settlement, you are reasonably compensated for lost [sic] of pay. |
[17] The plaintiff rejected this offer. Attempts were made, to no avail, to get him to change his mind and finally, on September 23, 1996, $4839 was deposited into his account, despite his objections. The next year, on September 15, 1997, the plaintiff finally accepted a job offer and his "dead lock" came to an end at that time. He had spent a total of three and a half years confined to his cell.
Decision
[18] Counsel for the defendant acknowledged at the outset that the plaintiff"s case had been mishandled. He mentioned that although the Assignment Board"s decisions of April 14, 1994 and June 1, 1994 are valid taken separately, they are irreconcilable when taken together. According to him, the first decision was simply forgotten along the way between the time it was made by Mr. St.-Amour and the time Ms. Bélisle made hers.
[19] He attributes this error to the fact that Mr. St.-Amour was in the process of transferring from one position to another at the relevant time. According to him, Ms. Bélisle may simply have neglected to consult the file when she made her decision of June 1. In the alternative, Ms. Lussier may have neglected to bring Mr. St.-Amour"s decision to Ms. Bélisle"s attention when she took up her post. In any event, counsel submits that this was an innocent mistake which could not trigger Crown liability.
[20] I do not agree. In my view, only a high degree of negligence can explain the total disregard for Mr. St.-Amour"s decision which was, after all, a formal decision rendered under the Act. Neither of the explanations given by counsel satisfies me that this was a harmless mistake. In any case, it was not explained why the mistake would not have been corrected when the Assignment Board was told of the existence of Mr. St.-Amour"s decision if, in fact, the decision simply [TRANSLATION] "fell through the cracks" as counsel for the defendant submits. This was not done.
[21] At the very least, it seems to me that from the time the offence report was withdrawn, it should have been assumed that the alleged offence could not be proved and effect should have been given to Mr. St.-Amour"s decision by reinstating the plaintiff in the laundry and compensating him for the loss of wages between April 5, 1994 and October 18, 1994. From this perspective, the compensation paid to the plaintiff is less than what he was entitled to.
[22] However, the plaintiff had a duty to mitigate the injury he claims to have suffered. From October 18, 1994 on, the plaintiff was obliged to look for another position, at level 2 if necessary, pending the outcome of his grievance and court action. Only a desire to aggravate the situation and raise the stakes can explain why the plaintiff chose to stay in "dead lock" from October 18, 1994 until September 15, 1997.
[23] I would add that the damages claimed are totally excessive. The only injury suffered is of an economic nature and relates to the difference in pay between level 2 and level 5 and to any special attachment the plaintiff might claim to have to his work in the laundry.10 As for the time spent in "dead lock", damages do not attach to it, at least not on the scale suggested by the plaintiff. In this regard, I adopt the words of Mr. Justice Galipeau of the Superior Court, who stated the following in Collin v. Guérin:11
| [TRANSLATION] The Court can hardly disregard the fact that the "dead lock" imposed on the applicant is not a measure applied exclusively to him. It is the measure applied to any prisoner who does not have work. Work assigned to a prisoner is what gives him some degree of freedom while in prison; if a prisoner does not want to work, he is treated neither better nor worse than unemployed prisoners. In short, it is not because the applicant was dismissed that he is in "dead lock", but because he did not want to work anywhere other than where he worked before. Thus, there is no connection between his dismissal from his position as a paralegal and the "dead lock" in which he was placed. |
[24] Moreover, the plaintiff himself was negligent and contributed to what happened to him. This entire matter stems from the search of April 5, 1994, when the plaintiff was discovered wearing three pairs of underpants. At the time, no one in authority, other than the institution"s doctors, was aware of the plaintiff"s medical condition. Nevertheless, the plaintiff chose to say nothing when given the opportunity to explain his behaviour. Nor did he say anything a few days later when he entered his plea of not guilty. He chose instead to demand that a witness, who to all appearances had nothing to do with the defence the plaintiff was in a position to put, be present.
[25] The first indication that the plaintiff"s behaviour could be explained by his medical condition was communicated to Mr. St.-Amour when the plaintiff appeared before the Assignment Board, and Mr. St.-Amour clearly took note of it, since he decided on a dismissal contingent upon the outcome of the offence report.
[26] At the time of the search, however, the circumstances were the following. Two weeks earlier"and three days after starting work at the laundry"the plaintiff had been found in possession of numerous articles of clothing and had entered a guilty plea. A few days later, he was caught coming out of the laundry wearing three pairs of underpants. The plaintiff knew the circumstances were as damning as could be, but he had a very legitimate explanation which his doctors were in a position to confirm. All the same, he chose to say nothing.
[27] In the absence of any explanation, what were prison officials supposed to think but that the plaintiff was reoffending. The plaintiff explained that he was too embarrassed about his condition to reveal it. Perhaps, but by failing to do so, he must have known he was exposing himself inescapably to the offence process, with the results that are now known. In my view, all these problems could probably have been avoided had the plaintiff explained the reason for his unusual attire at the outset. By hiding the truth, he acted foolishly and contributed significantly to the mistake he blames on the defendant.
[28] In the prison world, there is a delicate balance. Just as the authorities have to respect the rights of inmates and observe the procedures which they themselves implement to allow inmates to assert these rights, inmates have to behave in such a way as to minimize conflicts and, above all, not to provoke them. Under the circumstances of the instant case, I find that the liability is shared.
[29] For these reasons, the action is dismissed, and the parties will bear their own costs.
Marc Noël
Judge
OTTAWA, ONTARIO
May 14, 1998
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-192-95
STYLE OF CAUSE: Ernest Caron v. Her Majesty the Queen
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: May 5, 1998
REASONS FOR JUDGMENT BY NOËL J.
DATED May 14, 1998
APPEARANCES:
Léo Bernard FOR THE PLAINTIFF
Louis Sébastien FOR THE DEFENDANT
SOLICITORS OF RECORD
Léo J.L. Bernard FOR THE PLAINTIFF
St.-Rédempteur, Quebec
George Thomson FOR THE DEFENDANT
Deputy Attorney General of Canada
__________________1 The plaintiff alleges that he was in this situation from April 5, 1994 to September 15, 1997, and claims $200 for each working day, of which there are 260 per year, according to him.
2 S.C. 1992, c. 20 [C-44.6], hereinafter "the Act".
3 This expression is a product of prison jargon; it describes the measure applied to any prisoner who, because he has no work, is confined to his cell during working hours.
4 Also known as the Work Board.
5 Mr. Dionne"s memorandum must be read with this qualification in mind.
6 Only the offence report concerning the events of April 5 was pending at the time of this decision; as mentioned above, the other had ended with a guilty plea two weeks earlier.
7 The witness in question was one of the officers who conducted the strip search on April 5, 1994.
8 At the relevant time, the daily pay entitlement at level 2 was $5.25, while at level 5 it was $6.90.
9 This amount represents half the level 5 pay the plaintiff would have been entitled to between April 6, 1994 and October 18, 1994.
10 I do not see how the plaintiff can argue that his reputation was tarnished, since it was already tarnished, or how the actions of prison authorities could have hurt his chances for parole, since the evidence showed that he has refused to participate in the process that would lead to his release.
11 Collin v. Guérin, unreported decision dated July 28, 1997, at page 7.