2018 QCCQ 5317, 2018 QCCQ 5317

Boulachanis c. Attorney General of Quebec 2018 QCCQ 5317 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-154924-163 DATE: July 19, 2018 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ JOHN BOULACHANIS Plaintiff v.

ATTORNEY GENERAL OF QUEBEC Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Overview [ 1 ] John Boulachanis is presently an inmate serving a prison sentence for murder at the Donnacona federal maximum security institution. Before his sentencing, he had been incarcerated at various Quebec correctional facilities. In November 2013, he was incarcerated at the Montreal Correctional Facility (Établissement de détention de Montréal (Bordeaux)) ( Facility ).

After an attempted escape, he was put into a different cell in a

section of the Facility with a higher security level. Mr. Boulachanis asked that the personal items from his previous cell be transferred to his new cell. When the items were delivered, he found that many of them were either missing or damaged.

Unable to come to an agreement with the Facility authorities, he is suing the Quebec government for $546.53 in compensation for the alleged lost or damaged items. [ 2 ] The Attorney General of Quebec requests the dismissal of the Application on the alternative grounds that it is either prescribed, not valid in law, or that the amount of compensation offered of $59.15 fully covers Mr. Boulachanis’ damages, if any.

Questions in Issue 1) Is the claim prescribed? 2) Is the claim valid in law if the alleged facts are true? 3) If the answer to questions (1) and (2) is no, did the correctional officers breach an obligation owed to Mr. Boulachanis when they lost or damaged the items that were transferred from his old cell to his new cell? 4) If the answer to question (3) is yes, what damages has Mr. Boulachanis suffered regarding the alleged lost or damaged items? Context

[ 3 ] As Mr. Boulachanis presently resides at the Donnacona correctional facility, he testified by videoconference [1] . Mr. Boulachanis had originally sued the Ministry of Public Security of Quebec, the Montreal Correctional Facility (Établissement de detention de Montréal (Bordeaux)) as well as the Quebec City Correctional Facility (Établissement de detention de Québec). The representative of the Attorney General of Quebec states that these entities are all public bodies established by the government of Quebec. As such, in accordance with

article 96 of the Code of Civil Procedure ( C.C.P. ), the said representative submitted that Mr. Boulachanis’ Application should be directed solely against the Attorney General of Quebec. [ 4 ]

Article 96 C.C.P. states: 96. La demande qui porte sur les droits et obligations du gouvernement est dirigée contre le procureur général du Québec. Celle qui porte sur les droits et obligations d’un organisme public ou d’un officier public ou d’un titulaire d’une charge, auxquels il est demandé d’agir pour modifier un acte ou un registre, doit être dirigée directement contre eux. 96. An application pertaining to the rights and obligations of the Government must be directed against the Attorney General of Québec. An application pertaining to the rights and obligations of a public body or of a public officer or office holder who is called on to make changes to

an act or a register must be directed against the body or person concerned. [ 5 ] Mr. Boulachanis did not contest an amendment to the legal proceedings in that regard. The amendment was granted [2] . [ 6 ] In his Application filed into Court, Mr. Boulachanis claims damages of $1,519.53 for loss of property which occurred on two (2) separate incidents, one in November 2013 (at the time of the change of his cell as described above: $546.53), the other in June 2015 (at the time of a transfer from the Montreal Correctional Facility to the Quebec City Correctional Facility: $973). At the hearing, Mr.

Boulachanis explained that after the filing of the Application, several bags of his personal effects were delivered to him. Those bags contained the missing items for which compensation was sought for the second incident. Accordingly, Mr. Boulachanis withdrew his claim for damages relating to the June 2015 incident. Claim for Incident of November 2013 Previous cell and Mr. Boulachanis’ personal belongings [ 7 ] Mr. Boulachanis was charged with murder. He was taken into custody and detained at the Facility. In November 2013, he had been incarcerated at the Facility for approximately one (1) year.

At the time, the Preliminary Inquiry was taking place regarding the charges laid against him. [ 8 ] During that approximate period of one (1) year, he accumulated variois personal items principally from the prison canteen as well as from other sources. These personal effects were kept in his cell at

Section B-7 of the Facility. Mr. Boulachanis was the sole occupant of his cell. Attempted Escape and Incarceration in Isolation [ 9 ] On November 6, 2013, Mr. Boulachanis was being taken in a bus from the Facility to the Valleyfield Courthouse where the Preliminary Inquiry was taking place. While riding on the bus, he attempted to escape. He unscrewed and removed a window in the bus. He then jumped through the window opening and ran. He was quickly apprehended by the correctional officers. [ 10 ] Mr. Boulachanis was immediately returned to the Facility. Upon his return, he was not sent to his previous cell. He was put in isolation in

Section D-3 of the Facility.

[ 11 ] After three (3) days, he was transferred to another high security cell used for isolation in

Section A-1 of the Facility [3] . During the period that Mr. Boulachanis was held in these isolation cells, he was not authorized to have access to or possess any of his personal effects. [ 12 ] After approximately three (3) weeks, he was transferred to a higher security

section (Section A-2) of the Facility and was no longer in isolation. Request for Delivery and Receipt of Belongings from Previous Cell [ 13 ] On or about November 30, 2013, Mr. Boulachanis asked the prison officials to transfer his personal belongings from his old cell to his new cell. Some days later, he received the items in several bags. [ 14 ] Upon examination of the contents of the bags, he noted several things. [ 15 ] First, many of his personal items were missing. [ 16 ] Second, some of the returned items were damaged. [ 17 ] Third, some of the items delivered were not his at all.

They belonged to somebody else. [ 18 ] Mr. Boulachanis first made several verbal requests to the correctional officers to verify if they could locate his missing items. The correctional officers confirmed that some of the items delivered to him belonged to other inmates. The correctional officers proceeded to take back these items and tried to return them to their rightful owners. [ 19 ] However, the correctional officers could not locate any other bags of items belonging to Mr.

Boulachanis and could not provide an explanation or probable whereabouts of the missing items, other than they were wrongly delivered to other inmates and could no longer be traced. Claim for Missing and Damaged Items [ 20 ] On April 6, 2014, Mr. Boulachanis made a formal written claim for missing and damaged items resulting from the alleged negligent delivery of his property from his cell in

Section B-7 to his cell in

Section A-2 at the Facility. He attached a list of the items and their value as follows [4] : Effets manquants 1 walkman (baladeur) Sony AM/FM transparent $48.00 1 lampe de lecture $15.00 1 ruban adhésif $1.15 4 règles de plastique $7.80 4 paquets de papier à cigarettes $2.20 75+ paquets d’allumettes $2.25 1 canette de 7-UP $0.68 1 pot à jus $1.90 1 culotte (sous vêtement) noir Tommy Hilfiger $7.99 1 paire de bas noir Calvin Klein $4.49

2 Ensures, 1 chocolat et 1 fruit des champs $4.30 1 sac de pâtes tordues Catelli $2.49 12 Mr. Noodles poulet dans la boîte originale $12.00 1 magazine Adulte $6.95 1 magazine Adulte $10.95 1 paire de gants d’entrainement en tissu $2.99 1 paire de gants de travail en cuir $3.99 1 paire de gants d’entrainement en caoutchouc vert $7.89 1 crayon-feutre gros de marque Staples noir. Pour marquer mes documents enveloppe, etc. $2.49 1 crayon-feutre petit de marque Bic noir.

Pour marquer mes documents enveloppe, etc. $2.29 8 magazines AOPA avec des avions $36.60 1 paire d’écouteurs JVC $4.75 1 pâte à dents Sensodyne $6.50 25 enveloppes de ketchup, achetées à la cantine de RDP $1.50 12 enveloppes de sauce soya, achetées à la cantine de RDP $1.20 1 ½ de riz Uncle Ben’s $6.37 4 cordons de souliers $7.96 1 Lypsil $1.60 1 sac de bonbons Kasher $2.49 1 réglisse Twizzler $1.30 Total objets manquants : $218.07 Effets endommagés 1 écouteur Sony Gros – fil arraché $25.00 1 pantalon Akademiks gris a été déchiré lorsque les agents ont arraché le cordon du pantalon $65.00 1 paire de bottes d’hiver en cuir noir Timberland, les agents qui ont fait la fouille ont coupé et arraché les semelles intérieures exposant la mousse (foam) et le gel $229.95 2 chips Nachos ont été ouverts et écrasés $1.60 1 chip ordinaire a été écrasé $0.86 2 Maywest ont été écrasés $1.90 2 Mr.

Noodles ont été ouverts et écrasés $1.90 1 Ensure chocolat a été ouvert. Produit laitier marqué « réfrigérer après ouverture », donc ne sont plus bons $2.15 Total objets endommagés : $328.46 Effets manquants : $218.07 Effets endommagés : $328.46 Total de la réclamation $546.53 Assessment of Claim and Offer of Settlement [ 21 ] The claim was examined by the authorities of the Facility. The person responsible for review of the claims of this nature at the Facility was Claudine Langlois, Director of Administrative Services. [ 22 ] Ms. Langlois asked Mr.

Sacha Bouchard, another administrator at the Facility, to review the merits of Mr. Boulachanis’ claim. Mr. Bouchard did not make any recommendation with respect to a specific dollar figure for appropriate compensation. However, after review, he did list his observations regarding the claim and factors to be considered. [ 23 ] Mr. Bouchard testified at the hearing. He stated that in light of Mr. Boulachanis’ attempted escape, he was considered a high escape risk inmate. Before delivering the requested belongings to Mr. Boulachanis, the correctional officers were required to examine them in that context.

It was imperative that no item be given to Mr. Boulachanis which could assist or enable him to continue or renew his efforts to escape. [ 24 ] According to Mr. Bouchard, upon examination of Mr. Boulachanis’ belongings, certain items were found to be potential materials or objects that could be used to assist Mr. Boulachanis in possible other escape attempts.

[ 25 ] In those circumstances, Mr. Bouchard testified that the correctional officers were required to undertake significant search measures to eliminate the possibility that the goods to be transferred to a high escape risk inmate would pose a security risk. The correctional officers carried out a detailed and sometimes destructive search of the personal belongings in order to ascertain and eliminate the possibility that they contained materials or objects which could be used for purposes of planning or executing an escape. [ 26 ] In that regard, Mélanie Carrier also testified at the trial.

She is the Unit Head (“chef d’unité”) and an administrator of the Quebec City Correctional Facility. She explained that when an inmate is designated as posing an escape risk, the search measures and restrictions are elevated with respect to personal property possessed in a cell. She gave examples of food containers that can be purchased on the Internet that can contain weapons or instruments. She also displayed photos taken of items seized in the possession of Mr.

Boulachanis when he was incarcerated at the Quebec City Correctional Facility in 2015. [5] These included unauthorized items of pieces of metal, door frames, cord and artisanal handcuffs. [ 27 ] In his report dated May 23, 2014, Mr. Bouchard summarized his observations on Mr. Boulachanis’ claim. He concluded that the mix-up in bags delivered to Mr. Boulachanis at the time of the transfer of his belongings supported Mr. Boulachanis’ claim that some of the claimed missing items were indeed inadvertently given to another inmate and that this would give rise to the responsibility of the Facility. The report of Mr.

Bouchard was filed by the Attorney General of Quebec. The report reads as follows [6] : « Voici les éléments soulevés qui te sont soumis comme la réponse à donner à Bouchalanis: Éléments favorables au remboursement demandé : - Lors des événements à l’étude, il occupait une cellule simple (BD7-318) - À la suite de son évasion, dans les jours qui ont suivi, le personnel du secteur lui a remis des sacs d’effets qui n’étaient pas les siens (Chantal Tremblay confirme ce fait). Par conséquent, ses effets auraient pu être donnés à une autre PI par mégarde .

Éléments non favorables au remboursement demandé : - Les effets endommagés réclamés auraient pu se produire dans le cadre de l’application de mesures sécuritaires, dont la fouille à la suite de son évasion. - Sachant qu’il se préparait à s’évader depuis plusieurs semaines, il aurait pu faire du troc avec d’autres PI afin d’amasser le matériel nécessaire à son évasion.

Également, les jours précédents son évasion, il aurait pu donner certains ou la totalité des effets réclamés à des PI de son secteur. - Effets dans la liste des effets manquants : certains articles interdits et une information relative au baladeur réclamé nous questionne. En novembre 2013, à la suite d’une fouille, un baladeur a été saisi car il n’était pas identifié à son nom (pas buriné). Un rapport d’intervenant a été fait.

Par conséquent, est-ce justifiable qu’il réclame cet article. - Également, dans l’état d’esprit où il se trouvait en regard à son évasion, comment peut-il se souvenir du nombre exact de ses effets manquants. Ce qui résulte de l’analyse de la situation et des faits rattachés : Concernant la liste des effets endommagés, l’ensemble de ceux-ci ne devraient pas être remboursés les bris sont justifiés par les interventions posées au niveau de la sécurité. Autrement, nous ne pouvons établir que le personnel de l’établissement a délibérément endommagé les biens de la PI.

Concernant la liste des effets manquants, certains d’entre eux ne peuvent être soumis à une demande de réclamation car ils sont interdits à l’ÉDM. Par ailleurs, considérant l’erreur du personnel lors de la remise des sacs de la PI à la suite du changement de secteur, un doute raisonnable nous amène à donner raison à monsieur sur une possible responsabilité de notre personnel dans la perte de

ses effets personnels. Par ailleurs, monsieur était ouvert à fournir les factures en lien avec les effets manquants. À toi de voir s’il serait approprié de demander de telles factures. » [The Court has put part of the text in bold.] [ 28 ] Ms. Langlois reviewed Mr. Bouchard’s report and decided that Mr. Boulachanis’ claim was in part well founded. She concluded that an appropriate amount of compensation was $59.15. [ 29 ] On June 18, 2014, Ms. Langlois wrote to Mr.

Boulachanis as follows [7] : « Comme mentionné dans l’accusé de réception qui vous a été acheminé le 12 mai dernier, nous avons procédé à l’analyse exhaustive de votre demande de réclamation. À la suite de cette analyse, nous vous offrons en règlement la somme de 59.15 $ à

titre de dommages-intérêts . Cette offre tient compte des circonstances qui ont conduit à votre réclusion le 6 novembre 2013 et à votre transfert de secteur. De ce fait, l’établissement ne peut être tenu responsable des effets endommagés lors de la fouille survenue après votre tentative d’évasion (mesures sécuritaires). Pour ce qui est des effets manquants, l’ensemble de vos transactions effectuées à la cantine depuis le début de votre incarcération ainsi que les entrées et sorties de vos effets personnels a [sic] été vérifié.

Nous avons également tenu compte des demandes de réclamation pour des effets qui ne sont pas autorisés à l’établissement. Finalement, nous avons aussi pris en considération la saisie d’un baladeur qui n’était pas identifié à votre nom au mois de novembre 2013. L’ensemble de ces facteurs est déterminant dans notre décision de ne pas vous dédommager pour certains items dont la preuve n’a pu être faite qu’ils avaient bel et bien été achetés à la cantine ou avaient légalement été entrés à votre nom à l’établissement.

En contrepartie, nous reconnaissons que des effets ne vous appartenant pas (et récupérés par la suite) vous ont été livrés dans les jours suivant votre reclassement. Dans ce contexte, un doute raisonnable subsiste quant à notre responsabilité par rapport aux biens réclamés dont la preuve a été faite qu’ils avaient réellement été achetés et/ou avaient légalement été entrés à l’établissement . » [The Court has put part of the text in bold.] [ 30 ] Unfortunately, while Ms. Langlois did conclude and propose that $59.15 was an appropriate compensation for Mr.

Boulachanis’ losses, she did not specify how she came to that conclusion. Ms. Langlois did not testify at the trial, nor did she file a statement in lieu of testimony to specify which of the actual items and amounts claimed by Mr. Boulachanis were recognized by her as appropriate for compensation and for what reason. Request for Review and Legal Proceedings [ 31 ] Mr. Boulachanis was not satisfied with the amount offered. [ 32 ] On July 7, 2014, he requested that Ms. Langlois increase the amount of compensation [8] . [ 33 ] On July 22, 2014, Ms. Langlois declined to do so. Mr.

Boulachanis appealed that decision administratively.

[ 34 ] On July 28, 2014, a cheque was issued to Mr. Boulachanis by the Ministry of Public Security for $59.15 [9] . The cheque refers to “Réclamation d’effets personnels”. It makes no mention that the amount is without prejudice or without admission of liability. In that regard, neither the letter of June 18, 2014 or July 22, 2014 make any mention that the amount was offered without prejudice or admission of liability. [ 35 ] Similarly, the cheque issued makes no such mention. Mr. Boulachanis did not cash the cheque.

He instead returned it. [ 36 ] On September 11, 2014, the Ministry of Public Security confirmed that the offered amount of $59.15 was maintained. No reasoning or details were offered in support of that decision. The letter stated as follows: “À la suite d’une décision prise par le comité d’étude des réclamations pour dommages ou perte d’effets personnels le 10 septembre 2014, un montant de 59,15 $ vous a été accordé.” [10] [ 37 ] On September 19, 2014, Mr. Boulachanis requested a further review of the amount of the offer of compensation [11] .

The decision for that amount was deemed final by the authorities at the Ministry of Public Security [12] . [ 38 ] On October 22, 2016, Mr. Boulachanis signed and mailed his Application to the Small Claims Division of the Court of Quebec [13] . [ 39 ] On November 8, 2016, the Application was received by the Small Claims Division office [14] . [ 40 ] On November 11, 2016, the Application was deemed admissible by the Clerk of the Small Claims Division. [ 41 ] On November 14, 2016, the Court file was opened and the Application was officially deposited in the Court Record.

Analysis and Decision 1) Is the claim prescribed? [ 42 ] The representative of the Attorney General of Quebec submits that the claim is prescribed because the Application refers to the incident as taking place on November 6, 2013 since the Court file was only opened on November 14, 2016. The Attorney General of Quebec refers to

Article 2925 of the Civil Code of Quebec ( C.C.Q. ) that establishes a three (3) years prescription period. This submission is unfounded for two (2) reasons. [ 43 ] First, according to the evidence, the damage and knowledge of such damage by Mr. Boulachanis only occurred on or around November 30, 2016. All the evidence confirms that fact. The date of November 6, 2013 only refers to the date of the attempted escape. [ 44 ] Mr. Boulachanis requested the transfer and delivery of his personal belongings on or just before November 30, 2016 after being held in various confinement cells in the interim. Mr.

Boulachanis therefore only became aware of the loss and damage to his personal belongings on November 30, 2016. [ 45 ] According to Article 2880 (2) C.C.Q., prescription only begins to run from the day the right of action arose. It is settled law that the right of action can only arise after the claimant is aware or has the opportunity to be aware of the damage [15] . Mr. Boulachanis became aware of the damage on November 30, 2016.

[ 46 ] Furthermore, the preponderance of the proof indicates that the damage only occurred after Mr. Boulachanis’ request for transfer of the items. It was at that time that the belongings were searched and then delivered to him. [ 47 ] Both the damage and the knowledge of that damage occurred well after November 14, 2013, which would mean that the claim was made before the prescription deadline expired. [ 48 ] It should be noted that Mr. Boulachanis has never altered his view in that regard.

In a letter dated September 6, 2016 to the Ministry of Public Security requesting a review of the amount of compensation, he wrote that the prescription date was November 30, 2016 [16] . [ 49 ] Second, Defendant has offered on many occasions a settlement amount to Mr. Boulachanis in respect of his claim. [ 50 ]

Article 1898 C.C.Q. states as follows: 2898. La reconnaissance d’un droit, de même que la renonciation au bénéfice du temps écoulé, interrompt la prescription. 2898 . Acknowledgement of a right, as well as renunciation of the benefit of the time elapsed, interrupts prescription. [ 51 ] It is settled law that an offer of settlement without any reserve as to prejudice constitutes an admission of liability [17] .

The correspondence of the Facility and the personnel of the Ministry of Public Security dated June 18, July 22 2014 and the cheque issued dated July 28, 2014 constitute acknowledgements of a right, thereby effecting a renunciation of time elapsed to that point as well as an interruption of prescription. [ 52 ] According to

Article 2903 C.C.Q., after renunciation the prescription deadline begins “to run again for the same period”. As such, the applicable prescription date was extended to at least July 28, 2017. For these reasons, the ground of defence based upon prescription is dismissed. 2) Is the claim valid in law if the alleged facts are true? [ 53 ] This ground of defence is not mentioned in the contestation filed by the Attorney General of Quebec. [ 54 ] The latter argues that an internal directive of the Ministry of Public Security excludes Mr. Boulachanis’ right of action.

In particular, reference is made to an unpublished internal directive entitled in French “ Instruction provinciale ” dated October 1, 2000 regarding “Réclamation civile pour dommages ou perte d’effets” [18] . [ 55 ] The directive governs claims of employees of the Ministry and the correctional facilities, visitors and volunteers and those of inmates. The Attorney General of Quebec refers in particular to the third paragraph of

Section 5.2 which states: « Les autorités de l’établissement ne sont pas responsables de la perte, du bris ou du vol des articles et effets laissés en possession de la personne incarcérée. Toute réclamation concernant ces effets est en principe refusée. » [ 56 ] This ground of defence is also unfounded for at least three (3) reasons. [ 57 ] First, the language of this prohibition does not apply to the facts of the present claim. Mr. Boulachanis does not complain of the loss, breakage or theft of property that was left in his possession. That language could apply if personal items of an inmate were either

lost, broken or stolen, notably by other inmates [19] . [ 58 ] Instead, Mr. Boulachanis complains that his personal belongings left by himself securely in his cell in

Section B-7 of the Facility were not properly handled, transported and delivered to his new cell in

Section A-2 of the Facility. He claims that the taking of possession, packing and delivery of these items were handled negligently. [ 59 ] Second, even if the language of the paragraph mentioned in this directive did apply to the present claim, which it does not, an internal unpublished directive of a government ministry cannot have the legal effect of removing a person’s legal right of action for compensation of a civil wrong. [ 60 ] The right of an individual to address a Court for compensation for a civil wrongful act is guaranteed by the Quebec Charter of Human Rights and Freedoms .

Article 23 states: 23. Toute personne a droit, en pleine égalité, à une audition publique et impartiale de sa cause par un tribunal indépendant et qui ne soit pas préjugé, qu’il s’agisse de la détermination de ses droits et obligations ou du bien-fondé de toute accusation portée contre elle. Le tribunal peut toutefois ordonner le huis clos dans l’intérêt de la morale ou de l’ordre public. 23. Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him.

The tribunal may decide to sit in camera , however, in the interests of morality or public order. [ 61 ] Furthermore, the law is clear that an internal unpublished directive of the government does not bind third parties and cannot nullify a right guaranteed to an individual. An internal directive cannot modify an existing legal right and cannot affect rights of third parties. [ 62 ] Professors Issalys and Lemieux in L’action gouvernementale: précis de droit des institutions administratives wrote : « La directive ne constitue pas une véritable norme juridique.

Elle s’apprécie plutôt en tant que règle de conduite et ses manifestations en tant que telles pourront adopter différentes formes. [20] […] Ne possédant pas de force normative comparable à celle de l’acte réglementaire, la directive n’a pas pour effet de modifier l’ordre juridique existant ni, en conséquence, d’affecter les droits des tiers […]. [21] … Une seconde règle astreindra la directive à ne pas aller à l’encontre de la loi ou des règlements. Ne jouissant pas de la force normative propre à ces derniers actes, la directive leur sera, conséquemment, subordonnée. [22] »

[The Court has put part of the text in bold.] [ 63 ] Professor Garant in Droit administrative wrote : « Ces textes n’ont pas force de loi parce qu’il leur manque l’une ou l’autre des caractéristiques essentielles du règlement; conséquemment, leur auteur conserve en principe la faculté de ne pas les appliquer à un cas particulier suivant les circonstances.

Ces textes ne sont pas soumis au régime procédural des règlements. » [23] [ 64 ] Third, jurisprudence has recognized the right of an incarcerated individual of a Quebec correctional facility to claim for civil compensation against the Attorney General of Quebec as long as the inmate can establish that a civil obligation under the law has been breached or that she or he has been a victim of a civil fault. [24] [ 65 ] For the above reasons, the Court concludes that the above-mentioned directive does not remove or affect Mr.

Boulachanis’ legal recourse for compensation. 3) If the answer to questions (1) and (2) is no, did the correctional officers breach an obligation owed to Mr. Boulachanis when they lost or damaged the items that were transferred from his old cell to his new cell? [ 66 ] Had items in the possession of Mr. Boulachanis in his cell simply disappeared, been damaged or stolen while he was its occupant, the loss would not normally be the responsibility of the correctional facility or the Attorney General. Instead, Mr.

Boulachanis’ claim is based on the fact that his personal belongings were kept in safekeeping in his previous cell that he alone occupied in

Section B- 7. After his transfer to the higher security cell in

Section A-2, he asked the correctional authorities to take possession and transport his belongings to his new cell. He claims that they breached their obligation to do so since many of his belongings either arrived damaged or did not arrive at all. [ 67 ] Courts should be prudent about applying general civil law rights and obligations in the context of institutional incarceration. In such a context, the Court should interpret the civil law while taking into account all relevant factors, including the general guiding principles of the Quebec correctional system.

These guiding principles are expressed in the first two articles of the Act respecting the Quebec Correctional System [25] . They state as follows: “ 1. The correctional services of the Ministère de la Sécurité publique, the Commission québécoise des libérations conditionnelles and the community-based organizations which are their partners, as well as all society’s stakeholders having an interest in the correctional system shall facilitate the reintegration of offenders into the community.

In keeping with the fundamental rights of the offenders, the correctional services shall contribute to the maintenance of a safe society by helping offenders become law-abiding citizens and by providing reasonable and humane measures of security and control in their regard, while recognizing their potential for rehabilitation and their willingness to engage in a reintegration process. 2.

The protection of society, through individualized freedom-restricting measures, and compliance with court decisions are the paramount considerations in the pursuit of the reintegration of offenders into the community.” [The Court has put part of the text in bold.]

[ 68 ] As a result, the rights and obligations of persons in that context are sui generis or unique in nature. [ 69 ] Our Court, in the context of claims by incarcerated individuals, has applied the civil law rules of the contract of deposit [26] to determine the rights and obligations of the parties. [ 70 ] The Court agrees that, in the present circumstances, several articles governing this type of contract apply, in the context of deposit by gratuitous title or without charge [27] . In particular, the following articles apply in a sui generis manner in the context of institutional incarceration: 2283.

Le dépositaire doit agir, dans la garde du bien, avec prudence et diligence; il ne peut se servir du bien sans la permission du déposant. 2283. The depositary shall act with prudence and diligence in his custody of the property; he may not use the property without the permission of the depositor. 2289. Le dépositaire est tenu, si le dépôt est à

titre gratuit, de la perte du bien déposé qui survient par sa faute ; si le dépôt est à

titre onéreux ou s’il a été exigé par le dépositaire, celui-ci est tenu de la perte du bien, à moins qu’il ne prouve la force majeure. 2289. Where a deposit is by gratuitous title, the depositary is liable for the loss of the property deposited, if caused by his fault ; where a deposit is by onerous title or where it was required by the depositary, he is liable for the loss of the property, unless he proves superior force. [The Court has put part of the text in bold.] [ 71 ] The correctional officers took possession of Mr. Boulachanis’ belongings.

In accordance with the principles of the Act respecting the Quebec Correctional System , the officers were obliged to carry out a search of Mr. Boulachanis’ personal effects. After such search was effected, they were directed by their superiors to deliver the remaining items to Mr. Boulachanis in his new cell. [ 72 ] According to the evidence, and it is admitted by the representatives of the correctional facilities, there was a mix-up of some of the items belonging to Mr.

Boulachanis during the process of their handling, transport and delivery to his new cell. [ 73 ] It appears that at the same time as the transfer of Mr. Boulachanis’ belongings, the personal effects of one or more other inmates were also moved. [ 74 ] The preponderance of the evidence establishes that some of Mr. Boulachanis’ belongings were mistakenly delivered to other inmates. At the same time, the belongings of one or more of the other inmates were delivered to Mr.

Boulachanis, who promptly advised and returned those items to the correctional officers. [ 75 ] However, the correctional officers were unable to locate the misplaced property of Mr. Boulachanis.

[ 76 ] Accordingly, the Court concludes that the correctional officers did not carry out the packing, handling, transport and delivery of Mr. Boulachanis’ personal belongings with the required prudence and diligence that should be expected of them in the institutional context of incarcerated individuals in a correctional facility. The correctional officers were entrusted, under the authority and at the direction of their superiors, with the task of delivering to Mr.

Boulachanis’ private property to him in his new cell. [ 77 ] They failed, in part, to do so, without any valid explanation, in particular with respect to some of the missing personal property. That failure constitutes a breach of their obligations and a fault in the circumstances that engaged the civil liability of their employer and in turn the Attorney General of Quebec. 4) If the answer to question (3) is yes, what damages has Mr. Boulachanis suffered regarding the alleged lost or damaged items? Damaged Items [ 78 ] The Court agrees with Mr. Bouchard and Ms. Langlois that Mr.

Boulachanis’ claim regarding returned damaged items must be considered in the context of the recent escape attempt of Mr. Boulachanis at that time. In light of the augmented risk of continued planning or execution of escape attempts by Mr.

Boulachanis, it was incumbent upon the correctional authorities to take reasonable measures to prevent further escape attempts. [ 79 ] In accordance with the general principles stated in the Act respecting the Quebec Correctional System , the authorities of the correctional facility are required to maintain a “safe society” and to protect “society, through individualized freedom-restricting measures, and compliance with Court decisions” and to enforce such principles as “paramount considerations”. [ 80 ] By attempting to escape, Mr.

Boulachanis destroyed all trust of the correctional authorities regarding his good faith intention and voluntary compliance with the rules and regulations of the institutional incarceration. [ 81 ] In the circumstances, it was reasonable and in fact necessary for the correctional authorities to order a thorough search of Mr.

Boulachanis’ personal belongings before they could be returned to him. [ 82 ] Furthermore, according to the evidence, in the process of that search, the correctional officers uncovered evidence of materials and objects to be used in further escape attempts. [ 83 ] In these circumstances, it was reasonable to escalate the intensity of the search by applying invasive and where necessary, even destructive methods. [ 84 ] In that regard, Mr. Boulachanis is the author of his own misfortune for items damaged as a result of that augmented search.

On that basis, the Court will dismiss the part of his claim regarding damaged items. Missing Items [ 85 ] Had the missing items been damaged as a result of the invasive search, there may not be a claim in respect of them. But the list of damaged items includes many food items that were opened. It is possible that some of the missing food items were also opened and searched and subsequently discarded. That should not have occurred. The items should have been returned to Mr. Boulachanis, even in a damaged state. [ 86 ] Nevertheless, with regard to unreturned damaged items, Mr.

Boulachanis has not suffered any damages since he has assessed

that the damaged items were without value, as appears from his claim for their replacement value. On that basis, the Court will remove from the list of missing items food products that are the same as those that appear in the Damaged Items List. [ 87 ] Unfortunately, as stated, Ms. Langlois has not furnished to the Court details regarding calculations of her suggested compensation for the missing items. [ 88 ] The Court is therefore obliged to make that determination based on the evidence heard and defense grounds submitted. [ 89 ] It should be noted that at the time of his claim, Mr.

Boulachanis offered to show all invoices regarding payment for the items on his list. The institutional authorities never requested to review them. The Court concludes therefore that Mr. Boulachanis was in fact in possession of all the items mentioned in the Missing Items List at the time of his departure from the cell on November 6, 2013. [ 90 ] The defence suggests that Mr. Boulachanis’ list of missing items is not accurate for two reasons. [ 91 ] First, as he was planning an escape in the next days, he must have been distracted. He could not have known precisely what he possessed. [ 92 ] Mr.

Boulachanis responds that he is diagnosed with compulsive obsessive disorder and he meticulously knows and tracks what he has at all times. Given his evidence on this point, the Court is inclined to believe him. [ 93 ] Second, the defence suggests that since Mr. Boulachanis was planning an escape, he probably gave away to other inmates many of his personal items. Mr. Boulachanis responds that that is not true. On the contrary, he acted alone when he tried to escape, and without anyone’s knowledge or assistance. The last thing he would do is attract attention to himself by giving away his property before escaping.

The Court is of the view that, based on the evidence, Mr. Boulachanis’ version on this point is more plausible. [ 94 ] With regard to the missing walkman, it appears to have been confiscated by the correctional officers in that it was not properly labelled or engraved in accordance with established protocol at the Facility. Mr. Boulachanis objects that that confiscation was unfair.

As this is a matter of institutional protocol and not one of property and civil law rights, it is not within the appropriate purview of the Court to intervene on that issue. [ 95 ] Finally, the documents in evidence indicate that the institutional authorities refused compensation for some items that were considered unauthorized. These would include items that were not in compliance with the applicable security protocols, either initially in

Section B-7 or the increased levels in

Section A-2 resulting from the security reclassification of Mr. Boulachanis in light of his attempted escape. [ 96 ] Based upon the above findings and considerations, the Court will decide upon the admissibility of each item on the Missing Items List.

If the claim for the item is validated, the Court will specify the amount awarded: Awarded or not Reason Amount 1 walkman (baladeur) Sony AM/FM transparent $48.00 No Security protocol of facility 1 lampe de lecture $15.00 Yes Not returned $15.00 1 ruban adhésif $1.15 No Not authorized: high risk 4 règles de plastique $7.80 Yes Not returned $7.80 4 paquets de papier à cigarettes $2.20 Yes Not returned $2.20 75+ paquets d’allumettes $2.25 No Not authorized: high risk 1 canette de 7-UP $0.68 Yes Not returned $0.68 1 pot à jus $1.90 No Presumed damaged in search 1 culotte (sous vêtement) noir Tommy Hilfiger $7.99 Yes Not returned $7.99

1 paire de bas noir Calvin Klein $4.49 Yes Not returned $4.49 2 Ensures, 1 chocolat et 1 fruit des champs $4.30 No Presumed damaged in search 1 sac de pâtes tordues Catelli $2.49 Yes Not returned $2.49 12 Mr.

Noodles poulet dans la boîte originale $12.00 Yes Not returned $12.00 1 magazine Adulte $6.95 Yes Not returned $6.95 1 magazine Adulte $10.95 Yes Not returned $10.95 1 paire de gants d’entrainement en tissu $2.99 Yes Not returned $2.99 1 paire de gants de travail en cuir $3.99 No Not authorized: high risk 1 paire de gants d’entrainement en caoutchouc vert $7.89 No Not authorized: high risk 1 crayon-feutre gros de marque Staples noir. Pour marquer mes documents enveloppe, etc. $2.49 Yes Not returned $2.49 1 crayon-feutre petit de marque Bic noir.

Pour marquer mes documents enveloppe, etc. $2.29 Yes Not returned $2.29 8 magazines AOPA avec des avions $36.60 Yes Not returned $36.60 1 paire d’écouteurs JVC $4.75 Yes Not returned $4.75 1 pâte à dents Sensodyne $6.50 No Presumed damaged in search 25 enveloppes de ketchup, achetées sur la cantine de RDP $1.50 Yes Not returned $1.50 12 enveloppes de sauce soya, achetées sur la cantine de RDP $1.20 Yes Not returned $1.20 1 ½ de riz Uncle Ben’s $6.37 Yes Not returned $6.37 4 cordons de souliers $7.96 No Not authorized: high risk 1 Lypsil $1.60 Yes Not returned $1.60 1 sac de bonbons Kasher $2.49 Yes Not returned $2.49 1 réglisse Twizzler $1.30 Yes Not returned $1.30 Total : $134.13 [ 97 ] Accordingly, the Court will grant Mr.

Boulachanis the amount of $134.13. [ 98 ] Given the mixed result, the Court will also grant Mr. Boulachanis one half of his Court stamp fee, namely $50. FOR THESE REASONS, THE COURT: MAINTAINS in part Mr. Boulachanis’ Application; CONDEMNS the Attorney General of Quebec to pay Mr. Boulachanis the amount of $134.13, with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , from the original demand letter (Exhibit P-3, p. 1), namely April 6, 2014; CONDEMNS the Attorney General of Quebec to pay Mr. Boulachanis legal costs of $50 (Court Stamp Fee). __________________________________ Jeffrey Edwards, J.C.Q.

Date of hearing: July 6, 2018