James Howley (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Cattanach J.—Kingston, Febru-
ary 6; Ottawa, February 22, 1973.
Crown—Tort—Inmate of prison assaulted by another—
Whether officials negligent.
An inmate of a penitentiary was severely injured by
another inmate who attacked him with a knife. He claimed
damages from the Crown on the ground that the prison
authorities knew or ought to have known that his assailant
was dangerous and should have taken precautions to pre
vent the assault.
Held, dismissing the action, on the evidence there was no
reason for the prison authorities to anticipate the assault.
Timm v. The Queen [1965] 1 Ex.C.R. 174, followed;
MacLean v. The Queen, decided by the Supreme Court
of Canada May 1, 1972, referred to.
ACTION for damages.
COUNSEL:
H. L. Cartwright and Kay E. B. Cartwright
for plaintiff.
J. E. Smith and P. Betournay for defendant.
SOLICITORS:
Cartwright and Cartwright, Kingston, for
plaintiff.
Deputy Attorney General of Canada for
defendant.
CATTANACH J.—By this action, the plaintiff,
who had been an inmate of a Federal Penitentia
ry at Kingston, Ontario, serving a sentence for
an offence for which he had been convicted,
seeks compensation for personal injuries sus
tained by turn under circumstances to be
related.
Counsel for the parties have agreed that the
sum of $5,000 would be an adequate and appro
priate award of compensation for the general
damages suffered by the plaintiff. Because the
plaintiff was treated in institutions maintained
and operated by the Crown for which there was
no charge to him it follows that the plaintiff
incurred no special damages.
Accordingly the sole question to be deter
mined is that of the liability of the Crown.
In Timm v. The Queen [1965] 1 Ex.C.R. 174
at p. 178 I stated the responsibility of the
Crown toward inmates of penal institutions to
be 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.
In MacLean v. The Queen [1973] S.C.R. 2,
Mr. Justice Hall in delivering the unanimous
judgment of the Supreme Court of Canada
quoted my foregoing remarks (at page 6) as
being the correct statement of the law in this
respect.
The plaintiff is presently an inmate of Mill-
haven, a medium security place of confinement
in the Kingston area, but prior to his commit
ment to that institution he had been serving a
sentence imposed for an offence of which he
had been convicted in the maximum security
penitentiary at Kingston. He was admitted to
that institution on December 3, 1965.
He was obviously familiar with the procedure
and routines in that institution because within
one month of his admission he applied to the
administrative authorities to be admitted to a
dormitory.
Mr. Bell, who had been the Deputy Warden at
Kingston and is now the Deputy Director of
Millhaven, testified that the dormitory system
was inaugurated in 1954 due to an influx of
inmates. In 1967 there were two dormitories in
operation. I can safely infer from the evidence
that most inmates would prefer to be accom
modated in a dormitory than a cell block
because of the greater freedom and amenities.
The plaintiff, pursuant to his application for
admission to a dormitory, made shortly after his
confinement to the penitentiary on December 3,
1965, was admitted to dormitory G approxi
mately nine months later on October 6, 1966.
Dormitory G is a large rectangular room
which contains forty-five cot type beds. In short
it will accommodate a maximum of forty-five
prisoners, although that number fluctuates.
Each prisoner is also provided with a cupboard,
table and chair. There is a hot plate available at
which the occupants can brew coffee and cook
such food as they are able to scrounge from the
kitchen and one television set for viewing by all
occupants.
Each prisoner is also allowed to work at a
hobby of his choice. The prison authorities
permit the inmates to pursue these hobbies in
their cells as a diversion or occupation on their
own time, that is when they are not occupied in
assigned tasks and training. The occupants of
the dormitories are also permitted to work at
their selected hobbies in the dormitories. This
work might be done at the individual tables
supplied to each inmate or at one of two or
more tables in the dormitory at which three
persons might work. The hobbies include car
pentry, metal work, leather craft, petit point and
the like. For many of these permitted hobbies
tools are required and are kept by the prisoner
in the dormitory. These tools include knives,
chisels, saws, hammers and stones most of
which could be used as offensive weapons.
Sometime after the use of the dormitory
system began in 1954 a guard was murdered in
a dormitory. His stabbed and mutilated body
was found in a washroom. Those responsible
for the murder were never discovered. The
investigation was met by a wall of silence.
After this event protection was provided for
the guards.
In dormitory G this was done by building a
concrete block wall to a height of four feet
along the full extent of one of the longer sides
of the room. The concrete block wall is sur
mounted by a heavy wire mesh screen which
extends nine feet to the ceiling. A corridor four
feet wide was thus formed along the entire
length of the dormitory with complete visibility
to all areas of it. The only access to the corridor
was through a barrier at one end from a main
hallway. Access to the dormitory was also by a
barrier.
A guard patrols the corridor, to which the
barrier is locked. The barrier to the dormitory is
also locked.
If an untoward incident should occur in the
dormitory which would require physical inter
vention in the dormitory area rather than verbal
commands from the corridor, the guard in the
corridor is obliged to call to a guard stationed in
the main hallway who has keys to the locked
barriers. On being alerted that guard would
unlock the corridor door to free the guard
patrolling the corridor and then unlock the barri
er to the dormitory area. It was the routine for
the guard in the corridor to make regular patrols
within the dormitory area proper during which
patrols he was covered by the guard from the
main hallway. When the guard in the corridor
was relieved for short periods, the guard from
the main hallway took over the patrol of the
corridor.
In dormitory G one inmate was charged with
responsibility for the television set. It was his
function to obtain the vote of the inmates as to
what program would be turned on at specific
times. This was done in the normal course on
the evening of Friday, September 22, 1967.
Apparently the majority of the inmates, of
which the plaintiff was one, voted to watch a
particular movie at 11:00 o'clock. However
during the course of the program another inmate
named David Jepson, alias David Finton,
switched the television to a program of his
preference. The plaintiff testified that he did not
know who changed programs but because he
was not interested in the program in view he
went to bed.
The next day, which was Saturday, he com
plained bitterly to the inmate in charge of the
television set. In the plaintiff's own words he
had given the guy hell. He suggested in no
uncertain terms that someone more competent
than he should look after the television. He did
not complain to Jepson and professed ignorance
of the fact that it was Jepson who had switched
the program. There is no doubt that the plain
tiff's vigorous complaints to the TV supervising
inmate were well known to all other inmates
including Jepson.
On Sunday, September 24, 1967 the inmates
of dormitory G obtained their supper on a tray
and returned to the dormitory to consume it.
This was apparently a privilege accorded the
dormitory occupants. Then the plaintiff and
three other inmates, one of whom was Jepson,
set up a folding card table and began a "friend-
ly" game of bridge.
At about 7:10 p.m. the inmate in charge of the
television came to the card table with a sheet of
paper to record the vote for the movie to be
viewed that night. After taking the vote of the
other three bridge players the plaintiff was
approached. He passed the paper back to the
canvasser saying that there was no sense in
voting if anybody could switch the television.
He declined to vote by saying forget it and that
he wanted no part of it and pushed the paper
back to the inmate. This was done in the pres
ence of Jepson.
Jepson then called to another inmate to play
his hand. The plaintiff suspected nothing unusu
al but assumed Jepson wanted to leave the play
momentarily for some purpose.
Next the plaintiff, as he sat in his chair, felt a
stab in the back in the area of the left shoulder.
He felt the instrument strike his shoulder bone.
The penetration was not deep and he felt the
instrument withdrawn and felt another stab
lower down with much deeper penetration. He
remained seated on the theory that his assailant
could do him no further harm from the rear, that
the chair offered some protection and that if he
moved the knife might do greater internal cut
ting damage. He therefore anticipated a frontal
attack perhaps at the throat. He protected his
throat with his arm. The attack came but from
over his back to the soft area of the abdomen.
The plaintiff seized his assailant's wrist, pulled
the knife out as he now knew the weapon to be,
seized his assailant by the throat and threw him
against the pillar. He then definitely recognized
his assailant as Jepson. Some other inmates
came to Jepson's assistance by pulling the plain
tiff away. The plaintiff's explanation was that
they understood that he was attacking Jepson
rather than the reverse because they had not
seen the knife in Jepson's possession.
When he was first struck the plaintiff did not
call for assistance from the guard in the corri
dor, nor at any other time during the attack
upon him.
I have read the medical reports of the injuries
sustained by the plaintiff which were produced
in evidence by consent and I concur in the
agreement reached by counsel that $5,000 is
adequate compensation.
The allegations of negligence with respect to
the failure of the prison authorities to take rea
sonable care for the safety of the plaintiff as a
person in their custody are contained in para
graphs 6 and 7 of the petition of right as
follows:
6. The petitioner submits that the respondent's servants
and agents were negligent in failing to take proper precau-
tions to ensure that the said David Finton would not commit
acts of violence against the other inmates in the Kingston
Penitentiary. The petitioner further submits that the
respondent's servants or agents knew or ought to have
known that the said David Finton might commit serious acts
of violence and should not have been confined to a dormito
ry type of accommodation.
7. The petitioner further submits that the respondent's
servants or agents were negligent in failing to take proper
precautions to ensure that inmates did not obtain dangerous
weapons such as the knife used in the said attack.
In paragraph 5 of the petition it is alleged that
Jepson or Finton as he is also known, was
known to the prison authorities at Kingston
Penitentiary to have had a long history of vio
lence and it was known to the prison authorities
that he had been confined at an institution for
the criminally insane because of his tendency to
violence.
At the beginning of the trial counsel for the
plaintiff stated that he could proffer no evi
dence in support of the allegations of fact in
paragraph 5, and did not do so. Accordingly
these allegations must be completely disregard
ed.
During argument counsel for the plaintiff
resolved the allegations of negligence in the
general language of paragraphs 6 and 7 into
more specific particulars.
They were two-fold,
(1) that the dormitory system was wrong in
that inmates were there confined together
with ready access to numerous hobby tools
capable of being used as offensive weapons
and that because of the security precautions
designed primarily for the protection of the
guards the guards could not physically inter
vene in any incident between inmates within a
reasonable time, and
(2) that because the inmate Jepson had
undergone psychiatric examinations on Janu-
ary 27, 1956, February 1, 1956, February 29,
1956 and February 14, 1958 and by peniten
tiary psychologists on April 25, 1958 and July
4, 1963 the prison authorities should have
suspected from the fact of these examinations
having been conducted that Jepson was sus
ceptible of extraordinarily violent propensi
ties over and above those of ordinary prison
inmates for which reason the screening pro-
cess conducted by the prison authorities on
Jepson as a condition of his admission to the
dormitory should have been more rigorous or
in short the screening process of Jepson was
inadequate.
Bearing in mind that the inmates who were
admitted to a dormitory were only so admitted
after a lengthy period of observation of an
applicant and the privilege was limited to those
inmates considered to be capable of communal
living, I do not think, if the decision to admit a
particular applicant was based on reasonable
grounds, that the implementation and operation
of the dormitory system was in itself negligence
on the part of the prison authorities.
It was the general policy in the penitentiary to
permit all prisoners to carry on their hobbies in
their cells, no doubt to stimulate and preserve
their interest and to pass the time.
Accepting the premise that the occupants of a
dormitory are persons capable of living together
in harmony it follows that there is no negligence
on the part of the prison authorities allowing the
occupants the tools with which to carry on their
hobbies during leisure hours.
Neither do I think that the construction of a
corridor from which a guard could view the
dormitory area in safety is negligence. It is true
that actual entry into the dormitory area would
be delayed by reason that the guard in the main
hallway was the only guard with keys to the
barriers, but that delay is minimal and dictated
by the necessity of security. Further the guard
in the corridor subjected the occupants to con
stant visual supervision and could exercise an
element of control by oral intervention.
The paramount purpose of the corridor was to
provide protection for the guard following the
brutal and sadistic murder of a guard. I believe
that a guard is more likely to be attacked by
inmates than is a fellow inmate and that the
protection provided was both reasonable and
necessary.
There were physical patrols of the dormitory
area by a guard but with the protection of
coverage by an armed guard.
Further to the recollection of two responsible
prison officials there had been no incidents of
violence between inmates in a dormitory since
initiation of the system in 1954 other than the
present instance.
For the foregoing reasons the dormitory
system as such was not the causa causans of
the present incident.
In my view the matter turns on whether the
prison authorities knew, or ought to have
known, that Jepson was a prisoner who was
likely, if not kept under control, to commit an
act of violence. If the authorities knew or ought
to have known this, then Jepson should not
have been admitted to the dormitory.
It is true that Jepson was subjected to psy
chiatric and psychological examinations. Even if
it had been established that Jepson was mentally
defective, which was not established, mental
defectiveness takes many forms and a mental
defective is no more likely to commit an act of
violence than a person in full possession of his
mental faculties. The cardinal fact is that after
Jepson underwent these examinations the exam
iners did not order him confined to a psychiatric
unit or similar area in the penitentiary or else
where but permitted him to be returned to the
area of general confinement in the penitentiary.
That being the case it is logical to infer that
nothing was disclosed in the examinations to
lead the medical authorities to a suspicion of
violence. If such a suspicion was not present to
the medical personnel there would be no reason
for the prison authorities to anticipate an act of
violence on the part of Jepson and no reason to
keep him under special observation or to take
extraordinary precautions with regard to him.
Therefore it follows that when Jepson made
application for admission to a dormitory there
was no reason for the prison authorities to sub
ject that application to any different standards
than those normally imposed.
The procedure for applying for admission to a
dormitory was described by Mr. Fleming who is
the Assistant Deputy Director of Security at the
penitentiary and on September 24, 1967 was the
Assistant Deputy Warden in charge of custody.
At that time there were two dormitories.
An inmate was required to make a written
application for admission.
That application was submitted for recom
mendation to the classification officer who car
ried the applicant on his case load and the
senior correctional officer. Two criteria were
applied, (1) the security risk or the danger of the
inmate attempting to escape, and (2) his demon
strated behavioural pattern in the institution.
This behavioural pattern on the negative side
automatically excluded incorrigibles, homosexu
als, inmates of a violent nature and drug addicts.
On the positive side persons admitted were
described by the plaintiff himself as very special
guys, and as all the best of the cons, easy to get
along with and not trouble makers.
Mr. Bell described the positive attributes of
successful inmates for admission to a dormitory
as those with gregarious instincts capable of
associating with others in such activities as card
playing and those who wished more freedom to
devote to their hobby crafts. Those who applied
usually had these attributes whereas those who
preferred solitude or were anti-social and intro
spective did not usually apply.
With these considerations in mind the board
consisting of a classification officer and the
senior corrections officer reviewed each
application and made their recommendation
either for admission or not. This recommenda
tion was made to Mr. Fleming. If the recom
mendation was adverse he would rarely
intervene.
With respect to the use of instruments such as
knives for hobby crafts, the plaintiff himself
testified that he thought that the occupants of
the dormitory could be trusted with knives.
Mr. Fleming testified that he reviewed the
favourable recommendation of the board with
respect to Jepson and he concurred in it.
Jepson was admitted to the penitentiary on
February 18, 1965 and was admitted to the
dormitory on August 3, 1967. He was confined
about two and one-half years before he was
admitted to the dormitory. He and the plaintiff
were fellow occupants of the dormitory for
approximately two months.
When Jepson was admitted to the dormitory
he was also welcomed by the plaintiff to the
"clique" of which the plaintiff was a member.
Apparently the plaintiff thought that Jepson was
an acceptable person. He knew him from asso
ciation in the general areas of the penitentiary
where prisoners gathered. Therefore the plain
tiff had made a favourable assessment of
Jepson under conditions different from those
under which the board made its assessment of
him.
The psychiatric examinations of Jepson took
place prior to February 18, 1965 when he had
been confined to a penal institution previously.
They may have been conducted at Kingston
Penitentiary or another institution. The evidence
was that Jepson had been admitted to a dormito
ry at Kingston Penitentiary on the occasion of a
previous confinement in that institution.
The question is whether there was adequate
screening of Jepson prior to his admission to the
dormitory on August 3, 1967. For the reasons I
have previously outlined I do not think that the
fact Jepson underwent psychiatric examinations
should have required the prison authorities to
take extraordinary precautions with respect to
Jepson. Neither do I think that there was any
behavioural pattern demonstrated to the prison
authorities that should have precluded his
admission to the dormitory.
The test to be applied is whether the prison
authorities ought to have appreciated that as a
foreseeable consequence of the admission of
Jepson to the dormitory an injury might be done
to the plaintiff as was done.
On the evidence there was no reason for the
prison authorities to anticipate that Jepson
would inflict injury upon the plaintiff.
It therefore follows, in my judgment, that the
plaintiff has failed to show a breach of duty to
him and the plaintiff is not entitled to the relief
sought.
Her Majesty the Queen is entitled to costs if
demanded.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.