Abbott v. Canada
T-1788-87
Cullen J.
30/6/93
70 pp.
Action for damages based upon claims of intentional torts, negligence, unlawful confinement and cruel and unusual punishment -- Plaintiff struck by pellets from shotgun fired by guard during altercation within Collins Bay Penitentiary-O.P.P. wrong in laying charges for possession of dangerous weapon -- Institution report clearing plaintiff of any involvement-Plaintiff's action against Crown based on Crown Liability Act, s. 3 -- Onus on plaintiff to prove damage resulting from torts committed by Crown servant -- Legal duty of care between guards and inmates -- Other, less extreme, means available to deal with situation as second shot fired by guard unnecessary -- Guard's action unacceptable outside penitentiary -- Plaintiff's injuries and damage caused by shooting -- Plaintiff assaulted and battered by defendant's servants -- Provisions of Criminal Code, s. 25 cannot be invoked -- Neither "insurrection" nor "general riot" at Collins Bay -- Doctrine volenti non fit injuria not applicable-Defendant liable for assault and battery of plaintiff, and for negligent actions of servants -- No basis in law or in fact to keep plaintiff in segregation, especially after withdrawal of charges -- Conditions of segregation amounting to cruel and unusual punishment -- Plaintiff entitled to general damages in amount of $2,000 and to exemplary or punitive damages in amount of $10,000 -- Action allowed-Crown Liability Act, R.S.C., 1985, c. C-50, s. 3-Criminal Code, R.S.C., c. C-46, s. 25.