MICHAEL BEAUCHAMP Plaintiff v. HER MAJESTY THE QUEEN, 2022 FC 47

Date: 20220117 Docket: T-1365-18 Citation: 2022 FC 47 Ottawa, Ontario, January 17, 2022 PRESENT: Hon. Mr. Justice Henry S. Brown BETWEEN: MICHAEL BEAUCHAMP Plaintiff and HER MAJESTY THE QUEEN IN RIGHT OF CANADA Defendant JUDGMENT AND REASONS Table of Contents I. Nature of the matter 2 II. Issues 3 III. Legal standard in negligence action 4 A. Statutory considerations 4 B. Jurisprudence 8 IV. Plaintiff’s background: convictions and time spent in federal prison 10 V. Discussion and analysis 11 A.

Issue 1: Whether the Defendant’s servants, the staff at Beaver Creek institution (BCI) breached their duty of care to reasonably ensure the safety and health of the Plaintiff by not anticipating and taking measures to avoid the assault on the Plaintiff, thereby causing foreseeable harm to him by other inmates 12

(1) The assault and related issues 13

(2) Absence of pre-indicators 14

(3) Potential motive for assault: unpaid drug debt owed by Plaintiff 17

(4) Video surveillance 21

(5) Jurisprudence on security cameras:

a) similar cases to the case at bar and

b) camera placement a policy not operational decision 27 B. Issue 2: Whether the Defendant’s servants, health care and other staff at BCI breached their duties to reasonably protect the safety and health of the Plaintiff by subjecting him to unreasonable conditions in transporting him to and from hospitals and in placing him in segregation rather than in health care - related vehicles and accommodation, thereby foreseeably causing him harm; 42

(1) Use of transport van versus ambulance 42

(2) Placement and length of time in administrative segregation 49 (

a) Length of time issue 50 (

b) Administrative Segregation 51 (

c) Intentional infliction of harm and punitive damages 58 C. Issue 3: Whether the Defendant is vicariously liable for the harm caused by wrongful conduct of her servants herein; 58 D. Issue 4: What award of damages is appropriate; 60

(1) Chronic jaw and related pain 62

(2) Alleged PTSD 66

(3) Amount of damages 68

E. Issue 5: What costs should be awarded to the successful party? 68 I. Nature of the matter [ 1 ] This is an action for damages for personal injuries to the Plaintiff’s jaw caused in an assault by unknown assailant(

s) in 2017 while the plaintiff was an inmate at Beaver Creek Institution Medium [BCI]. BCI is a medium security facility in Ontario operated by Correctional Service of Canada [CSC] under the Corrections and Conditional Release Act, SC 1992, c 20 [ CCRA ] and the Corrections and Conditional Release Regulations , SOR/92-620 [ CCRR ]. CSC staff, who are servants of the Defendant, did not observe the assault.

The action was tried under the Simplified Action rules of the Federal Courts Rules, SOR/98-106, ss.292 - 299 . [ 2 ] The Defendant denies liability, and asks that the action be dismissed with lump sum costs of $5,000.00. The Plaintiff did not provide a lump sum cost request as the Court asked him to do, however his Statement of Claim asks for costs on a substantial indemnity basis. [ 3 ] The trial of this Simplified Action proceeded by the filing of affidavit evidence by the Plaintiff on which cross-examinations and re- direct took place. This procedure was followed by the Defendant in the same manner.

There was no oral discovery. The parties filed a Joint Brief of Documents, the contents of which were agreed to be authentic consisting mainly of documents from CSC files. There was no reply evidence. Both parties were given time to file written submissions after the hearing, which they did. Both parties had the right to file written responding submissions, which neither did. II. Issues [ 4 ] The Plaintiff in his Closing Submissions frames the issues as follows, with slight modification by the Court to item D, and the addition of item E: A .

Whether the Defendant’s servants, the staff at Beaver Creek institution (BCI) breached their duty of care to reasonably ensure the safety and health of the Plaintiff by not anticipating and taking measures to avoid the assault on the Plaintiff, thereby causing foreseeable harm to him by other inmates; B .

Whether the Defendant’s servants, health care and other staff at BCI breached their duties to reasonably protect the safety and health of the Plaintiff by subjecting him to unreasonable conditions in transporting him to and from hospitals and in placing him in segregation rather than inhealth care- related vehicles and accommodation, thereby foreseeably causing him harm; C . Whether the Defendant is vicariously liable for the harm caused by wrongful conduct of her servants herein; D . What award of damages is appropriate; and E . What costs if any should be awarded to the successful party? III.

Legal standard in negligence action A. Statutory considerations [ 5 ]

Section 3 of the CCRA provides the purpose of the federal correctional system, overseen by CSC is to contribute to the maintenance of a just, peaceful and safe society in a number of ways including: Purpose of correctional system " " But du système correctionnel " " 3 The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by " " 3 Le système correctionnel vise à contribuer au maintien d’une société juste, vivant en paix et en sécurité, d’une part, en assurant l’exécution des peines par des mesures de garde et de surveillance sécuritaires et humaines, et d’autre part, en aidant au moyen de programmes appropriés dans les pénitenciers ou dans la collectivité, à la réadaptation des délinquants et à leur réinsertion sociale à

titre de citoyens respectueux des lois. " " (

a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and " " " BLANK "

(

b) assisting the rehabilitation of offenders and their reintegration into the community as law- abiding citizens through the provision of programs in penitentiaries and in the community. " " " BLANK " [ 6 ]

Section 4 of the CCRA provides the principles that guide CSC in achieving the purposes referred to in

section 3 including: Principles that guide Service " " Principes de fonctionnement " " 4 The principles that guide the Service in achieving the purpose referred to in

section 3 are as follows: " " 4 Le Service est guidé, dans l’exécution du mandat visé à l’article 3, par les principes suivants: " " " … " " … " (

c) the Service uses the least restrictive measures consistent with the protection of society, staff members and offenders; " "

c) il prend les mesures qui, compte tenu de la protection de la société, des agents et des délinquants, sont les moins privatives de liberté; " " (

d) offenders retain the rights of all members of society except those that are, as a consequence of the sentence, lawfully and necessarily removed or restricted; " "

d) le délinquant continue à jouir des droits reconnus à tout citoyen, sauf de ceux dont la suppression ou la restriction légitime est une conséquence nécessaire de la peine qui lui est infligée; " " [ 7 ] Subsection 30(1) of the CCRA requires CSC to assign each inmate a security classification be it minimum, medium, or maximum: Service to classify each inmate " " Attribution de cote aux détenus " " 30

(1) The Service shall assign a security classification of maximum, medium or minimum to each inmate in accordance with the regulations made under paragraph 96(z.6). " " 30

(1) Le Service attribue une cote de sécurité selon les catégories dites maximale, moyenne et minimale à chaque détenu conformément aux règlements d’application de l’alinéa 96z.6). " " [ 8 ]

Section 18 of the CCRR , made pursuant to

section 30 of the CCRA recognizes the three different security levels pertaining to the supervision and control of inmates: 18 For the purposes of

section 30 of the Act, an inmate shall be classified as " " 18 Pour l’application de l’article 30 de la Loi, le détenu reçoit, selon le cas: " " (

a) maximum security where the inmate is assessed by the Service as " "

a) la cote de sécurité maximale, si l’évaluation du Service montre que le détenu: " " (

i) presenting a high probability of escape and a high risk to the safety of the public in the event of escape, or " " (

i) soit présente un risque élevé d’évasion et, en cas d’évasion, constituerait une grande menace pour la sécurité du public, " " (ii) requiring a high degree of supervision and control within the penitentiary; " " (ii) soit exige un degré élevé de surveillance et de contrôle à l’intérieur du pénitencier; " " (

b) medium security where the inmate is assessed by the Service as

b) la cote de sécurité moyenne, si l’évaluation du Service montre que le détenu:

(

i) presenting a low to moderateprobability of escape and amoderate risk to the safety of thepublic in the event of escape, or (

i) soit présente un risqued’évasion de faible à moyen et,en cas d’évasion, constitueraitune menace moyenne pour lasécurité du public, (ii) requiring a moderate degreeof supervision and control withinthe penitentiary; and (ii) soit exige un degré moyen desurveillance et de contrôle àl’intérieur du pénitencier; (

c) minimum security where theinmate is assessed by the Serviceas

c) la cote de sécurité minimale,si l’évaluation du Service montreque le détenu: (

i) presenting a low probabilityof escape and a low risk to thesafety of the public in the eventof escape, and (

i) soit présente un faible risqued’évasion et, en cas d’évasion,constituerait une faible menacepour la sécurité du public, (ii) requiring a low degree ofsupervision and control withinthe penitentiary (ii) soit exige un faible degré desurveillance et de contrôle àl’intérieur du pénitencier [9]

Section 70 provides CSC is responsible to take all reasonable steps to ensure that penitentiaries are safe for inmates and staff alike: Living conditions, etc." " Conditions de vie" " 70 The Service shall take allreasonable steps to ensure thatpenitentiaries, the penitentiaryenvironment, the living andworking conditions of inmatesand the working conditions ofstaff members are safe, healthfuland free of practices thatundermine a person’s sense ofpersonal dignity." " 70 Le Service prend toutesmesures utiles pour que le milieude vie et de travail des détenus etles conditions de travail desagents soient sains, sécuritaireset exempts de pratiques portantatteinte à la dignité humaine." " B.

Jurisprudence [10] In the recent case of Canada v Greenwood, 2021 FCA 186, Justice Gleason confirmed the Supreme Court of Canada’s decision inSaadati v Moorhead, 2017 SCC 28, in which Justice Brown outlines the elements of negligence: [154] Justice Brown outlined the elements of the tort of negligence at paragraph 13 of Saadati in the following terms:“[l]iability in negligence law is conditioned upon the claimant showing (

i) that the defendant owed a duty of care to theclaimant to avoid the kind of loss alleged; (ii) that the defendant breached that duty by failing to observe the applicablestandard of care; (iii) that the claimant sustained damage; and (iv) that such damage was caused, in fact and in law, by thedefendant’s breach.” To the extent that the Federal Court suggested otherwise or that different elements pertain in a systemicnegligence claim, it erred. [11] In Clements v Clements, 2012 SCC 32 [Clements], the Supreme Court of Canada described the "“but for...”" test as the basis fordetermining whether negligence caused harm: [8] The test for showing causation is the “but for” test.

The plaintiff must show on a balance of probabilities that “but for”the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that thedefendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurredwithout the defendant’s negligence. This is a factual inquiry.

If the plaintiff does not establish this on a balance ofprobabilities, having regard to all the evidence, her action against the defendant fails. [12] I accept and agree with Justice Layden-Stevenson in Bastarache v Canada, 2003 FC 1463 at para 23 [Bastarache] where this Courtheld prison authorities such as CSC owe a duty to take reasonable care for the health and safety of inmates, such as the Plaintiff, while incustody: [23] The defendant, as earlier stated, concedes the existence of a duty of care.

The content of the duty is well established.The prison authorities owe a duty to take reasonable care for the health and safety of the inmate while in custody: Timm,supra; Abbott v. Canada (1993), 64 F.T.R. 81 (T.D.); Oswald v. Canada (1997) (FC), 126 F.T.R. 281(T.D.). In addressing the duty of care, regard must be had to the circumstances surrounding the incident: Scott v. Canada,[1985] F.C.J. No. 35 (T.D.). An important consideration in the foreseeability of risk is the likelihood of the occurrence ofthe event giving rise to the risk.

The issue is not whether there is a duty of care, but whether the acts or omissions of thedefendant fall below the standard of conduct of a reasonable person of ordinary prudence in the circumstances: Russell v.

Canada 2000 BCSC 650, [2000] B.C.J. No. 848; Hodgin v. Canada (Solicitor General) (1998), (NBQB), 201 N.B.R. (2d) 279 (Q.B.T.D.), aff'd., (NB CA), [1999] N.B.J. No. 416 (C.A.). [13] I also agree as a general rule that CSC is not liable for damages for personal injuries arising from an assault on an inmate by anotherinmate where the institution did not have, or could not reasonably have had knowledge of one or more pre-indicators of violence:Subbiah v Canada, 2013 FC 1194 [per Aalto P] [Subbiah]. A pre-indicator is an event or circumstance that makes the possibility ofviolence more likely.

The Court at paragraphs 75-76 stated, and I agree that liability for damages for personal injuries only arises wherethat harm is reasonably foreseeable: [75] Mr. Subbiah argues that CSC was negligent because CSC staff failed to take reasonable care to protect his safety whenthey knew or ought to have known his safety was in jeopardy. There is a duty on prison officials to ensure the safety ofinmates.

This duty is accepted in Canadian law and arise from Ellis v Home Office, [1953] 2 All ER 146 (Eng CA) at 154and adopted in Timm v Canada, [1965] 1 ExCR 174. [76] However, there is no absolute liability on prison authorities to prevent all harm to inmates; liability generally flows onlywhere correctional authorities have actual knowledge of harm. In other words, harm must be reasonably foreseeable. InMiclash v Canada, 2003 FCT 113, CSC was held liable for an attack on an inmate where CSC “should have known” thatthe inmate’s safety was compromised. [Emphasis added] IV.

Plaintiff’s background: convictions and time spent in federalprison [14] The Plaintiff is a male, former federal inmate currently 51 years old.

According to the unchallenged report of the Parole Board ofCanada [Parole Board] dated January 5, 2018 contained in the Joint Book of Documents, at the time of the alleged assault the Plaintiffwas serving a seven-year sentence for a number of offences committed in 2009, including manslaughter, assault with a weapon, assaultcausing bodily harm, uttering threat, assault, and mischief. [15] The Parole Board describes the 2009 manslaughter as follows: "“On April 24, 2009, you followed employees who had escorted aman out of a bar and left him laying on the ground outside.

You kicked him in the head and smashed him into a pole, before re-enteringthe bar. He was taken to hospital in a coma, and died a month later.”" [16] This was the Plaintiff’s second conviction for manslaughter, and third federal prison term. The Parole Board states: "“Your criminalrecord includes convictions for property offences, and breaches of trust, and two previous federal sentences. Your first was in 1993 forBreak & Enter with Intent, Assault. Fail to Comply x2, and Assault Causing Bodily Harm, after you assaulted your common-law spouse,and punching and kicking a man.

Your second [previous federal sentence, ed.] was in 2002 for Manslaughter, after a child died in yourcare after being abused, you blamed her mother but pled guilty to avoid a murder charge. During both these incarcerations, you wereidentified as having weapons and participating in assaults.”" [17] The Plaintiff has a history of drug and alcohol abuse. For that reason, the Parole Board imposed a special condition on hisconditional release decision dated January 5, 2018, that he abstain from alcohol and drugs other than prescribed medications.

His historyof drug and alcohol abuse was outlined in the 2013 sentencing decision of the British Columbia Supreme Court for convictions includingthe 2009 manslaughter: "“[18] Substance abuse has a role in these offences. Mr. Beauchamp began drinking alcohol when he was 14years old. At 23 years old when in custody, he began using both cocaine and heroin. His cocaine use commenced with recreational use,but it later escalated to heavy use of both cocaine and heroin. During this time, Mr. Beauchamp was arrested for manslaughter and spentapproximately eight years in jail.

During the time in jail, he stopped using cocaine and heroin. He has not returned to being a heavy druguser since and he has not used heroin since that time. However, alcohol abuse continues to be a factor in his life. At the time of theoffence to which the manslaughter plea has been entered and accepted, Mr. Beauchamp was drinking and was intoxicated.”" [18] By the time of the assault, the Plaintiff had spent 9 years and eight months in federal prisons. V. Discussion and analysis [19] I turn to the issues raised by the Plaintiff. A.

Issue 1: Whether the Defendant’s servants, the staff at Beaver Creek institution(BCI) breached their duty of care to reasonably ensure the safety and health of thePlaintiff by not anticipating and taking measures to avoid the assault on the Plaintiff,thereby causing foreseeable harm to him by other inmates [20] As set out in greater detail below, I find there is no reliable evidence of any pre-indicators of harm against the Plaintiff.

Thus, thePlaintiff’s issue ultimately resolves into whether there was a duty of care, and if so whether CSC breached its duty in terms of providingsupervision through camera surveillance or directly of the area where the Plaintiff claims he was assaulted. To put this discussion incontext, I will set out the circumstances of the assault. A key issue is whether there was reasonable video camera surveillance of the areawhere the Plaintiff claims the assault took place. I find that there was.

[ 21 ] In

summary, and contrary to the Plaintiff’s evidence and allegations, I am not satisfied the Plaintiff established on a balance of probabilities where the assault took place. However, assuming it took place in the area he claims, I find that area was covered by reasonable video surveillance, namely a pan-and-tilt camera operated remotely by prison guards. I also reject the Plaintiff’s allegation he was assaulted in a " “blind spot” " , that is, an area without video camera surveillance.

I also find the placement and type of video camera security CSC used where the Plaintiff claims the assault took place conformed with CSC policy, such that CSC is immune from liability for negligence in that connection. Overall, I have concluded on the evidence and law that CSC is not liable in negligence in terms of providing inadequate or unreasonable video surveillance of the areas of assault claimed by the Plaintiff. [ 22 ] I emphasize the Plaintiff identified two areas of this multi unit prison as where the assault took place.

I therefore consider prison video surveillance only in connection with these two areas. [ 23 ] The Plaintiff’s allegations as to where he suffered his injury conflict: 1) he originally said he fell in his shower; therefore this Court reviewed a video review report prepared by prison staff concerning the area around his particular living unit. From this review, I conclude the Plaintiff’s original " “fell in the shower” " story was not truthful; it is not consistent with the prison’s video camera review. In the present action, the Plaintiff takes a different position.

He now alleges 2) the assault took place in an entirely different location. I have reviewed this allegation and find on a balance of probabilities that the area he now claims the assault took place was not where it took place either. This is because there would have been too many witnesses – " “twice as many” " witnesses – because prison guards were changing shift in that area at that time. [ 24 ] This is a trial on the allegations and submissions of the parties. I was not asked to and do not conduct an analysis of the many other locations on the prison grounds where the assault might have taken place.

(1) The assault and related issues [ 25 ] During the afternoon of August 30, 2017, the Plaintiff sustained a serious injury to his jaw. I accept this submission which is not contradicted. At all material times he repeatedly told prison staff he fell in the shower. However, in this action started about a year later (July 17, 2018) and it seems for the first time, he claims he was assaulted on the prison grounds somewhere away from his living unit. He claims to have no idea why he was assaulted. He testified he cannot identify his assailants. He says he never gave any reason for other inmates at BCI to assault him.

He deposes there were no witnesses to the assault, and that he made his own way back to his unit or range after the assault.

(2) Absence of pre-indicators [ 26 ] Deputy Warden Craig James of BCI [ " “Deputy Warden James” " ] gave evidence at trial by affidavit, in cross-examination and redirect. At the time of the assault, Deputy Warden James had been in CSC prison service for 19 years. I accept the evidence of Deputy Warden James who I find was both a credible and reliable witness. I come to these conclusions having listened to his evidence which was direct, complete, and succinct. It had the ring of truth. It was not weakened in cross-examination.

I also give his evidence considerable weight because he was present at this prison at the time of the assault. He was then Assistant Warden Operations. He was promoted to Deputy Warden the following year, in 2018. [ 27 ] Thus, Deputy Warden James had actual first hand knowledge, not of the assault itself – the only evidence in that respect comes from the Plaintiff – but of the BCI prison generally and particularly in terms of its operations and security surveillance among other things.

Deputy Warden James also gave evidence based on his review of prison files, which were extensive, many of which were filed with the Court. [ 28 ] I prefer the evidence of Deputy Warden to that of the Plaintiff on matters of prison security and operations where they conflict because of his personal knowledge of such matters. [ 29 ] On the issue of reasonable foreseeability and pre-indicators of violence, Deputy Warden James deposed there were no pre-indicators of violence against the Plaintiff: 5. I am advised by Beaver Creek staff that they did not recall any pre-indication of an assault on Mr. Beauchamp.

A review of casework record entries in the Offender Management System, prior to and following the assault, do not provide any expression of concern by Mr. Beauchamp to staff members. [ 30 ] Deputy Warden James added in cross-examination that the lack of any pre-indicators of violence was not based solely on the Plaintiff not having expressed any concerns (he expressed none), but was the aggregate of the entire situation, including casework records, statement/observation reports, and daily interaction logbooks.

From these Deputy Warden James concluded there’s " “nothing that – as a pre-indicator for me to tell me that he was in trouble.” " [ 31 ] This evidence was not seriously contradicted by the Plaintiff who neither pleaded nor led any evidence of pre-indicators of harm towards himself. Indeed the Plaintiff testified he had no idea why he was assaulted. He says he never gave any reason for other inmates at BCI to assault him: 27 MR. PETERSON: Can you think of any reason 28 why any of the inmates that you were living with --- 1 MR. BEAUCHAMP: No. 2 MR. PETERSON: --- would have wanted to --- 3 MR. BEAUCHAMP: No.

4 MR. PETERSON: --- assault you? 5 MR. BEAUCHAMP: No, I was there going on two 6 years. [ 32 ] That said, contrary to his sworn testimony at trial, several weeks after trial and for the first time (at paragraphs 4, 5 and 6 the counsel for the Plaintiff’s Closing Arguments) counsel argued prison staff might have drawn an " “inference” " the Plaintiff was involved with other inmates involved in drug activities, and that there were " “racial tensions between inmates, including black inmates” " and the Plaintiff. [ 33 ] I am unable to give these suggestions credence for several reasons.

This suggestion is directly contrary to the Plaintiff’s sworn testimony that he had no idea why he was assaulted. Both cannot be true. Secondly, it is contrary to his sworn testimony in cross to the effect he did not do hard drugs since 1999: " “I haven’t done hard drugs or anything like that since October 17th of 1999….” " Third, the Plaintiff did not raise any suggestion he was a drug user (which he in fact emphatically denied before the Court) or that he was involved in racial issues, in either his Statement of Claim or his affidavit filed as his evidence in chief.

The reference to racism is unattributed and uncorroborated hearsay: I do not accept it. [ 34 ] Moreover, Deputy Warden James testified there were no pre-indicators of violence in the Plaintiff’s " “entire situation, including casework records, statement/observation reports, and daily interaction logbooks.” " I accept the evidence of Deputy Warden James regarding pre-indicators, and prefer it to that of the Plaintiff. With respect, the Court declines to draw an " “inference” " of pre-indicators.

I find this evidence too weak a reed to carry any weight. [ 35 ] Therefore, applying the law as set out in Subbiah , supra at paras 75-76 and Adams, supra at para 79, the Plaintiff has failed to establish on a balance of probabilities that BCI had any actual or imputed knowledge of any pre-indicator of harm to the Plaintiff; BCI had neither actual knowledge the Plaintiff’s safety was compromised or that he was at risk of assault. In this respect, I find harm to the Plaintiff was not reasonably foreseeable, and to the extent pre-indicators form a basis for this action, it must be dismissed.

(3) Potential motive for assault: unpaid drug debt owed by Plaintiff [ 36 ] According to a written Observation Report given by another inmate to prison authorities dated September 11, 2017, 11 days after the alleged assault, another inmate living in Tundra Unit was selling " “heroin and feninol ( sic )” " and the Plaintiff " “Mike got his jaw broken already because he owed money.” " [ 37 ] I also note the Plaintiff failed to provide a proper urine sample for a random prison drug test a few weeks before the assault at issue.

I further note the report filed by the inmate who wrote " “Mike got his jaw broken” " , also states " “he also has been faking his piss tests tell your guy to pay closer attention he uses someone elses [ sic ] piss.” " [ 38 ] Counsel for the Defendant observed in questioning Deputy Warden James that the " “Mike” " referred to appears to be the Plaintiff, whose jaw had been fractured less than two weeks before this note, which is trial exhibit D2. The Defendant acknowledges the statements in the Inmate Request form are hearsay.

Notwithstanding, Deputy Warden James confirmed in redirect: " “We do have a lot of drugs being, from our intelligence perspective, moving out of that unit.” " In context, the unit referred to was Tundra Unit. Deputy Warden James testified Tundra Unit, while medium security, was " “a more secure unit” " and " “we are constantly doing non-routine searches in that unit” " for drugs. I accept the evidence of the Deputy Warden in this connection. [ 39 ] In cross-examination, it was put to the Plaintiff that the reason for the assault was the Plaintiff owed money for drugs to somebody in Tundra Unit.

While the Plaintiff denied this, it is significant that when asked, the Plaintiff claimed he had no idea why an inmate would write a form stating: " “Mike got his jaw broken already because he owed money” " and leave the note in the mailroom: 6 MR. PETERSON: All right. Do you recall 7 another unit in the medium security called Tundra unit? 8 MR. BEAUCHAMP: Tundra unit? Yes. 9 MR. PETERSON: All right. And did you -- 10 were you aware that there were inmates in Tundra unit who 11 were selling illegal narcotics (line cuts out) inmates? 12 MR. BEAUCHAMP: No, I’m not aware of that . 13 MR. PETERSON: All right.

And Mr. 14 Beauchamp, are you aware that other inmates have made the 15 allegation that you were an inmate who was purchasing 16 illegal drugs from inmates in Tundra unit? 17 MR. BEAUCHAMP: No, I’m not aware of that. 18 MR. PETERSON: All right. Has your counsel,

19 Mr. Sloan, shown you in the productions for the trial, an 20 inmate statement, a handwritten statement, saying that you 21 were owing monies for drugs, and that was the reason why 22 you were assaulted on August 30th, 2017? 23 MR. BEAUCHAMP: I’m not aware of that 24 either. 25 MR. PETERSON: All right. So, I’m putting 26 that to you that --- 27 MR. BEAUCHAMP: Okay. 28 MR. PETERSON: --- another inmate did make 1 that statement about you. Do you have any idea why 2 somebody would make that allegation about you? 3 MR.

BEAUCHAMP: Not at all actually. [Emphasis added] [ 40 ] Deputy Warden James was asked in redirect how often he has seen an inmate injury of the severity of the Plaintiff’s, caused for no apparent reason whatsoever, over his (23 years) service with CSC. He answered, " “Never.” " When asked about what motivation the Plaintiff might have to lie about the reason for the assault, Deputy Warden James said the Plaintiff would stand to gain monetarily in a civil suit. 13 MR. PETERSON: All right. And can you think 14 of a reason why Mr.

Beauchamp might want to lie about not 15 having had some part to play in his being assaulted? 16 MR. JAMES: Personal gain, monetary in a 17 civil suit I guess. I’d be speculating. [ 41 ] In this connection, it is also noteworthy the Plaintiff testified he was not aware that drugs were being sold by inmates in Tundra Unit. I do not accept his evidence for several reasons. [ 42 ] First, by the time of the assault he had spent between 9 years and eight months in federal prisons.

The Plaintiff was first incarcerated in federal prison in 1993 when sentenced to 2 1/2 years for " “Break & Enter with Intent, Assault, Fail to Comply x2, and Assault Causing Bodily Harm.” " He returned to federal prison a second time in 2002 upon his conviction for manslaughter after a 4-year-old girl died in his care after being abused.

Regarding his third prison term (his second manslaughter conviction and the one he was serving at the time of the assault), he was sentenced to 7 years (12 years before credit). [ 43 ] I had the opportunity to observe and listen to the Plaintiff as he was cross-examined and in re-direct. He impressed me as a street- smart individual, but with the ability to speak untruths. I accept the finding of the Parole Board of Canada in its January 5, 2018 report, and the finding of the British Columbia Supreme Court in sentencing him in 2013, that he has had serious drug and alcohol issues.

I have accepted the evidence of the Deputy Warden that inmates in Tundra Unit were selling drugs to other inmates. Given these facts and the lengthy time the Plaintiff had spent in prison at the time of the assault – approaching 10 years – it would be naïve and implausible to accept the Plaintiff’s claim he was not aware inmates in Tundra were selling drugs. I do not believe his evidence in this regard. [ 44 ] In assessing motive, I must also consider the Plaintiff was not truthful about where he was assaulted. He repeatedly told prison staff including Health Care staff he fell in the shower.

That was not true as the video camera surveillance record of his unit area establishes; even the Plaintiff now must concede his previous story was not true because a different story is the basis of his present claim of inadequate surveillance. [ 45 ] As noted, he now has completely changed his story. He now claims he was assaulted elsewhere where he " ‘believes’ " , rather too conveniently in my view, there was no video surveillance.

However I find he is again untruthful and that the assault did not occur where he now claims it did, primarily because if it had, in my view and more probably than not, an assault would have been witnessed and reported due to the large number – " “twice as many” " - of potential witnesses in that area during prison staff shift change, as Deputy Warded testified. [ 46 ] That said I am unable to determine the motive for the assault on a balance of probabilities. However, the Court is unable to rule out the possibility the assault was a result of a failure by the Plaintiff to pay a drug debt.

(4) Video surveillance

[ 47 ] As an alternative argument and in the absence of pre-indicators of harm, the Plaintiff argues that CSC may still be liable to the Plaintiff in negligence. This is how the Plaintiff puts it:

e) That the inherently violent character of medium security CSC institutions means that CSC is not required to anticipate every incident of violence but only to implementreasonable and adequate supervision to address and prevent violent incidents.

f) That, absent evidence of incompatibles or actual conflict with respect to the inmates involved, it must be shown that CSC security measures in place were adequate and reasonable with respect to CSC’s mandate and objectives (to ensure public, staff and inmate safety).

g) That surveillance of inmates will not fail to meet this standard if there exists adequate camera and in-person monitoring and observation, in essence, to address most potentially violent incidents and related locations. [ 48 ] For the following reasons, I am not persuaded on a balance of probabilities either that CSC was negligent or that CSC negligently caused the assault or resulting damage to the Plaintiff in terms of video surveillance. [ 49 ] I begin this discussion by noting that on the issue of video surveillance, Deputy Warden James testified BCI is a medium security institution with a capacity of over 500 inmates and " “a couple hundred staff.” " [ 50 ] In terms of video surveillance, the Deputy Warden’s evidence was that BCI uses both fixed cameras and pan-and-tilt cameras.

Fixed cameras have a fixed angle of view. With pan-and-tilt cameras, a guard in the control booth may use a toggle switch to rotate the angle of view. Deputy Warden James testified BCI security staff reviewed video footage within 24 hours and determined that an assault on the Plaintiff was not caught on camera. [ 51 ] I have read the video review report, Tab 200 Joint Book of Documents. I note this report appears to focus on where the Plaintiff initially claimed his injury occurred, namely in his unit in his shower.

The video review report does not address the " “walkway” " area where the Plaintiff now says he was assaulted. The walkway area was not raised by the Plaintiff when the video review was conducted (the same or the next day as the injury). The video review report focuses on the Plaintiff’s particular living unit, one of many living units on the prison grounds, and does so in my view because the Plaintiff misled prison staff when he said he fell in his shower.

The video report found " “Camera footage is not available to track Beauchamp’s movement upon exit of the unit” " ; " “At 1553hrs Beauchamp is observed to enter the unit and attend E range door. He is observed to be holding his jaw at this time” " ; " “At 1559hrs Beauchamp is observed entering the unit and his range holding his jaw, left side” " ; and " “I would believe there to be some physical injury to Beauchamp’s mouth.” " [ 52 ] From these findings of the video report, there is no evidence the Plaintiff’s injury or assault took place in or around his living unit.

I accept the video review report’s findings, which confirm the Plaintiff was not truthful when he told prison staff he fell in the shower. [ 53 ] So where did the assault take place? The Plaintiff deposes in his affidavit he was assaulted " “between kitchen and gym.” " During his testimony in cross he said the assault took place on a " “walkway” " in between the kitchen/canteen and the back of the gym. The Plaintiff offered no corroboration as to either.

Also without corroboration, he says in his affidavit " “at least as far as I know” " the area where he was assaulted was a " “blind spot.” " He failed to substantiate his belief. [ 54 ] I am not persuaded by his evidence the assault took place on a walkway between the kitchen and the gym. I say this based on evidence of Deputy Warden James who testified the walkway where the Plaintiff claims the assault took place was an unlikely site for an assault because there would be too many witnesses. [ 55 ] Deputy Warden’s evidence was given in a straightforward manner, candidly and without embellishment.

Deputy Warden James testified – notably in cross-examination by Plaintiff’s counsel – that the Plaintiff’s claim is unlikely because of the time of day (mid afternoon) and because that area was a high traffic area at that time.

He testified there would have been " “twice as many” " BCI prison staff in that area than usual, because at that time of day prison staff would be in the process of changing shifts. [ 56 ] In those circumstances, Deputy Warden James, who has been with CSC for approximately 23 years and who was at the time of the assault Assistant Warden Operations, testified he would have expected somebody to come forward as a witness. However, no one did: 17 MR. JAMES: No, it actually -- I found it 18 odd the time of the day, actually. It’s the change of 19 shift.

We would have twice as many staff on during that 20 period of time, which would increase our likelihood of 21 observing something. So, I actually found it very odd and 22 not an ideal time of -- that I -- in my history that I’ve 23 seen assaults occur. [ 57 ] In my respectful view, it is more probable than not that the assault took place somewhere other than the walkway kitchen gym area as claimed by the Plaintiff.

I accept the evidence of Deputy Warden James that the assault could have occurred in any number of areas throughout the prison grounds that were " “off camera.” " I agree if it occurred where the Plaintiff claims, it more likely than not would have been witnessed and reported. But it was not reported. [ 58 ] I add it is also obvious from the video review report the Plaintiff was assaulted somewhere other than in or around his living unit or in his shower.

[59] The Court is unable to determine where the assault took place. This was also the conclusion of Deputy Warden James who stated incross: "“Where he was assaulted, I have no idea. It wasn’t in his living unit by virtue of the video review. It was somewhere outside ofhis living unit.”" I accept this evidence. [60] Not only is the Plaintiff’s evidence at trial inconsistent with his earlier reports to prison staff, it appears tailored to his mistakenbelief the claimed area was a "“blind spot.”" This was not the case, as I discuss below.

His testimony is self-serving in that if the areawas not subject to video camera surveillance, as he wrongly believed, no one could contradict his story with video camera evidence. [61] In any event, I also find that if the assault occurred where claimed by the Plaintiff, that area was not a "“blind spot”" as suggested bythe Plaintiff. To begin with, I note the Plaintiff neither claims nor gives evidence the area he refers to is in fact a "“blind spot.”" Instead,he offers this assertion in a highly qualified manner: "“at least as far as I know”" he states. Without more, this is simply a statement ofhis belief.

It fails to establish the area of the assault on a balance of probabilities. This is particularly so given the evidence of the DeputyWarden that the area between the kitchen and the gym was in fact monitored at the time of the assault by prison staff through use of apan-and-tilt camera.

To recall, Deputy Warden James testified that a pan-and–tilt camera allows prison staff to "“toggle around todifferent areas of the institution.”" [62] Deputy Warden James testified in cross, that the pan-and-tilt video camera in the area claimed by the Plaintiff might have beenpointed to the kitchen/canteen building or the yard at that time, not the walkway, because the kitchen/canteen was operational at thattime. Understandably, he did not wish to speculate.

While it is possible, and while in my view it would be reasonable for the guard tofocus on the kitchen/canteen area and not the walkway at that time, given it was operational, I am left with the Deputy Warden’sevidence that "“twice as many”" persons as usual would have been in the walkway for a shift change.

At best, I find the walkway mighthave been a temporary blind spot, but was not a general "“blind spot”" as the Plaintiff appears to believe. [63] In my view, the Plaintiff must overcome the evidence of Deputy Warden James who was at the time Assistant Warden Operations.He failed to do so. [64] I also find it significant the Plaintiff led no evidence, expert or otherwise, that other prisoners could tell in advance - or indeed at anytime - where pan-and-tilt cameras generally are pointed, or where this particular camera was pointed at the time of the assault. [65] Likewise, the Plaintiff led no evidence other prisoners knew or believed the area described by the Plaintiff was a "“blind spot”"(which it was not). [66] There was no evidence inmates could tell if cameras were of the fixed or pan-and-tilt type. [67] There was no evidence inmates could even tell if cameras were on or off. [68] These are important omissions in the record.

Cumulatively they leave a very substantial and almost insurmountable evidentiary gapin the Plaintiff’s case. [69] In

summary, I find it more probable than not the assault would have been witnessed and reported to prison authorities if it occurredin the walkway area as claimed by the Plaintiff. On a balance of probabilities, I find the assault did not take place where the Plaintiffalleges it took place. I find the area he now claims the assault took place was covered by CSC pan-and-tilt video camera surveillance.

Iam not persuaded the walkway was a true "“blind spot”" or that it was considered by any inmate or inmates to be a "“blind spot.”"Therefore, and with respect, the Plaintiff’s claim relating to negligent video camera installation, monitoring and surveillance must bedismissed. [70] The Plaintiff has the onus to establish negligence on a balance of probabilities.

Given the foregoing, in my respectful view thePlaintiff has failed on a balance of probabilities to establish there was inadequate video camera surveillance because, among other things,he failed to establish either where the assault took place, or the level of video surveillance in place in that place at that time.

(5) Jurisprudence on security cameras:

a) similar cases to the case at bar and

b) surveillance cameraplacement as a policy decision [71] The parties brought to the Court’s attention jurisprudence from British Columbia and Alberta involving CSC’s placement of videocameras on prison grounds in the context of inmates alleging negligence and inadequate video surveillance, causing them to be assaulted.These cases are in some respects similar to the case at bar; as discussed below I agree and adopt relevant legal conclusions made by theprovincial Superior Courts. [72] There is also jurisprudence from the Supreme Court of Canada holding governments are not generally liable in negligence for theresults of their policy decisions: Just v British Columbia, (SCC), [1989] 2 SCR 1228 and Nelson (City) v Marchi, 2021SCC 41. [73] I will examine both the relevant case law and the consequences of policy decisions on liability for negligence after reviewing thelegislative and regulatory framework. [74] The starting point for both issues is section 30(1) of the CCRA: Service to classify each inmate"" Attribution de cote auxdétenus" "

(1) The Service shall assign a security classification of maximum, medium or minimum to each inmate in accordance with the regulations made under paragraph 96(z.6). " " 30

(1) Le Service attribue une cote de sécurité selon les catégories dites maximale, moyenne et minimale à chaque détenu conformément aux règlements d’application de l’alinéa 96z.6). " " [ 75 ]

Section 18 of the CCRR , made pursuant to

section 30 of the CCRA recognizes the three different security levels pertaining to the supervision and control of inmates: 18 For the purposes of

section 30 of the Act, an inmate shall be classified as " " 18 Pour l’application de l’article 30 de la Loi, le détenu reçoit, selon le cas: " " (

a) maximum security where the inmate is assessed by the Service as " "

a) la cote de sécurité maximale, si l’évaluation du Service montre que le détenu: " " (

i) presenting a high probability of escape and a high risk to the safety of the public in the event of escape, or " " (

i) soit présente un risque élevé d’évasion et, en cas d’évasion, constituerait une grande menace pour la sécurité du public, " " (ii) requiring a high degree of supervision and control within the penitentiary; " " (ii) soit exige un degré élevé de surveillance et de contrôle à l’intérieur du pénitencier; " " (

b) medium security where the inmate is assessed by the Service as " "

b) la cote de sécurité moyenne, si l’évaluation du Service montre que le détenu: " " (

i) presenting a low to moderate probability of escape and a moderate risk to the safety of the public in the event of escape, or " " (

i) soit présente un risque d’évasion de faible à moyen et, en cas d’évasion, constituerait une menace moyenne pour la sécurité du public, " " (ii) requiring a moderate degree of supervision and control within the penitentiary; and " " (ii) soit exige un degré moyen de surveillance et de contrôle à l’intérieur du pénitencier; " " (

c) minimum security where the inmate is assessed by the Service as

c) la cote de sécurité minimale, si l’évaluation du Service montre que le détenu: " " (

i) presenting a low probability of escape and a low risk to the safety of the public in the event of escape, and (

i) soit présente un faible risque d’évasion et, en cas d’évasion, constituerait une faible menace pour la sécurité du public, " " (ii) requiring a low degree of supervision and control within the penitentiary. (ii) soit exige un faible degré de surveillance et de contrôle à l’intérieur du pénitencier " " [ 76 ] These distinctions (maximum, medium and minimum security inmates) are carried through to various rules and Directives issued by the federal Commissioner of Corrections [Directives]. Such Directives are made pursuant to

section 97 of the CCRA .

Section 98 of CCRA allows the Commissioner to designate any or all rules made under

section 97 as “Commissioner’s Directives”. [ 77 ]

Section 97 authorizes the Commissioner to make rules: (

a) for the management of the Correctional Service; (

b) for the matters described in

section 4 ; and (

c) generally for carrying out the purposes and provisions of this Part and the regulations: Rules " " Règles d’application " " 97 Subject to this Part and the regulations, the Commissioner may make rules " " 97

Sous réserve de la présente

partie et de ses règlements, le commissaire peut établir des règles concernant: " " (

a) for the management of the Service; " "

a) la gestion du Service; " "

(

b) for the matters described in

section 4; and " "

b) les questions énumérées à l’article 4; " " (

c) generally for carrying out the purposes and provisions of this Part and the regulations. " "

c) toute autre mesure d’application de cette

partie et des règlements " " [ 78 ] With respect to

section 97 (b),

section 4 of the CCRA sets out various principles that guide CSC, while

section 3 of CCRA sets out the purpose of the federal correctional system and the means by which that purpose is to be achieved. The Defendant submits and I agree that subsections 3 (

a) and (

b) are each important but, I would add, require concrete resolution by prison management for application in the day to day administration of the correctional system: Purpose of correctional system " " But du système correctionnel " " 3 The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by " " 3 Le système correctionnel vise à contribuer au maintien d’une société juste, vivant en paix et en sécurité, d’une part, en assurant l’exécution des peines par des mesures de garde et de surveillance sécuritaires et humaines, et d’autre part, en aidant au moyen de programmes appropriés dans les pénitenciers ou dans la collectivité, à la réadaptation des délinquants et à leur réinsertion sociale à

titre de citoyens respectueux des lois. " " (

a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and " " " BLANC " (

b) assisting the rehabilitation of offenders and their reintegration into the community as law- abiding citizens through the provision of programs in penitentiaries and in the community. " " " BLANC " [ 79 ]

Section 4 provides a number of guiding principles by which

section 3’s purposes are to be achieved. In my view, the implementation of these principles and purposes require concrete resolution by prison management for application in the day-to-day administration of the correctional system. I also agree with the Defendant that subsections 4 (

c) is important in the context of this case, as I would add, subsection 4 (d): Principles that guide Service " " Principes de fonctionnement " " 4 The principles that guide the Service in achieving the purpose referred to in

section 3 are as follows: " " 4 Le Service est guidé, dans l’exécution du mandat visé à l’article 3, par les principes suivants: " " " … " " … " (

c) the Service uses the least restrictive measures consistent with the protection of society, staff members and offenders " "

c) il prend les mesures qui, compte tenu de la protection de la société, des agents et des délinquants, sont les moins privatives de liberté; " " " … " " … "

(

d) offenders retain the rights ofall members of society exceptthose that are, as a consequenceof the sentence, lawfully andnecessarily removed orrestricted;" "

d) le délinquant continue à jouirdes droits reconnus à toutcitoyen, sauf de ceux dont lasuppression ou la restrictionlégitime est une conséquencenécessaire de la peine qui lui estinfligée;" " … "… " [80] I turn to the relevant Commissioner’s Directives under sections 97 at issue in terms of surveillance cameras. [81] Commissioner’s Directive 706, Classification of Institutions establishes that in medium security institutions, inmate movement andassociation will be regulated and normally monitored.

In contrast, the Directive states that maximum security institutions, inmatemovement and association will be strictly regulated and most often monitored. [82] Commissioner’s Directive 566-15, Closed Circuit Television Systems provides that medium security institutions (such as BCI) arenot "“required”" to provide video surveillance of all areas of the institution.

Instead, Annex B to this Directive sets out a chart identifyingvarious areas in an institution, and the applicable video surveillance, namely, "“required”", "“permitted”", "“no”" or "“not applicable”".Annex B also explains that "“permitted”" applies to an area where cameras would reasonably be expected, but are not mandatory. [83] In this respect, it is not contested the area where the Plaintiff claims he was assaulted is classified as a "“leisure and recreationarea”", that is, an area open to the general population of inmates at BCI.

As such, video surveillance of this type of area in a mediumsecurity institution is "“permitted”" and not "“required”". I attach the relevant portion of Annex B: (

a) Jurisprudence: cases similar to the case at bar [84] Recent jurisprudence in the Superior Courts of British Columbia and Alberta deal with similar issues to those in the case at bar interms of video camera placement, the assault of an inmate, and claims by an inmate against CSC in negligence. [85] In Russell v. Canada, 2000 BCSC 650 [Russell], Justice Wilson of the Supreme Court of British Columbia tried a claim for damagesby an inmate who was assaulted by another inmate in a true blind spot in Matsqui Institution in British Columbia, another federalmedium security institution operated by CSC under the CCRA.

Wilson J. observed in reasons that resonate in the case at bar: [12]…[T]he evidence is that, in a medium security institution, the inmates have fairly open access within the perimeters ofthe institution. There is good reason for that, as part of the attempt to provide an environment in which rehabilitation is mostlikely to take place. The result of that, however, is that the institution cannot be expected to have full-time supervision of allinmates at all times. As Mr.

Brock [the warden] said several times in his evidence, there is a delicate balance which alwaysgoes on, to give as much freedom as possible to inmates, consistent with the safety of the inmates and staff. … I accept thatevidence. It is consistent with one of the guiding principles of the Correctional Service of Canada. as set out in s. 4(

d) of theCorrections and Conditional Release Act, to use the least restrictive measures consistent with the protection of the public,staff members and offenders. How that is done is a policy decision, not subject to review by the courts: Just v. BritishColumbia, [1992] (sic, should be 1989, ed.) (SCC), 2 S.C.R. 1228. [Emphasis added]

[ 86 ] Mr. Justice Wilson found CSC met the standard of care to supervise the inmates, and dismissed the action. [ 87 ] In Adams v Canada (A.G.) , 2015 ABQB 527 [ Adams ], Justice Dario of the Alberta Court of Queen’s Bench tried a claim for damages involving a plaintiff inmate who was assaulted by other inmates in Drumheller Institution in Alberta, another federal medium security institution operated by CSC under the CCRA . The assault occurred in a true blind spot behind a dense bush in an area open to the general population.

Justice Dario found at paragraph 70, citing Russell at paragraph 12 , that a medium security institution " “cannot be expected to have full-time supervision of all inmates at all times” " . Justice Dario noted at para. 65, " “The requirements for medium security facilities do not mandate constant and direct supervision.” " [ 88 ] In my view this jurisprudence represents good law which I apply in the case at bar. [ 89 ] In Adams , a video camera with continuous monitoring was directed towards the area in question.

However, the area where the assault took place was obscured from view by the video camera [and a guard tower] by virtue of the bush: see Adams at para 13 .

Justice Dario found at paras 71-72 that CSC met the standard of care to provide supervision of inmates, even though the institution removed the bush just two weeks after the assault. [ 90 ] Importantly, Justice Dario at para 30 of Adams set out the rationale for relatively relaxed video surveillance in medium security institutions compared to maximum security institutions, and essentially came to the same conclusions as Justice Wilson in Russell , with which I agree: [30] One of the goals of medium security facilities is to assist in the rehabilitation of offenders and their reintegration back into society: [ CCRA ] s. 3 (b).

To achieve this, these facilities must find a balance between supervision and allowing inmates such freedom as is consistent with the safety of the inmates and staff. … Medium security facilities are intended to create an environment that promotes and tests responsible, socially acceptable behaviour through moderately restricted freedom of movement, freedom of association and privileges, in preparation for eventual release directly back into the community.

In contrast, maximum security inmates cannot be released directly back into society; instead, they are introduced to less structured environments (such as medium security institutions). [ 91 ] I agree with Justice Wilson that BCI as a medium security institution " “cannot be expected to have full-time supervision of all inmates at all times” " [ Russell at para 12 , concurred in by Justice Dario in Adams at para 70] . I also agree with Justice Dario in Adams at para 65 that " “The requirements for medium security facilities do not mandate constant and direct supervision” " .

I also agree with the following conclusion drawn from subsection 3 (

b) of the CCRA discussed by Justice Dario at para 30 of Adams : " “One of the goals of medium security facilities is to assist in the rehabilitation of offenders and their reintegration back into society: [ CCRA ] s.3 (b).

To achieve this, these facilities must find a balance between supervision and allowing inmates such freedom as is consistent with the safety of the inmates and staff. … Medium security facilities are intended to create an environment that promotes and tests responsible, socially acceptable behaviour through moderately restricted freedom of movement, freedom of association and privileges, in preparation for eventual release directly back into the community.” " [ 92 ] On the basis of this jurisprudence I conclude CSC met the standard of care in its placement of the pan-and-tilt camera with a view of area the Plaintiff alleges the assault took place, notwithstanding at a particular time the camera might reasonably have been aimed elsewhere where more people might be present.

I wish to emphasize this is an alternative finding because in my view the assault did not take place in the area claimed by the Plaintiff but at another but unknown location on the prison grounds. (

b) Video camera placement is a policy decision: CSC is not liable for negligence [ 93 ] The Defendant submits the decision by the Commissioner of Corrections in Commissioner’s Directive 566-15, Closed Circuit Television Systems that video surveillance of leisure and recreation areas in medium security institutions such as BCI is not " “required” " but " “permitted” " is a core policy decision courts will not review. For the reasons that follow, I agree. [ 94 ] To begin, I note Justice Wilson in Russell found to this effect at para 12: " “It is consistent with one of the guiding principles of the Correctional Service of Canada. as set out in s. 4 (

d) of the Corrections and Conditional Release Act , to use the least restrictive measures consistent with the protection of the public, staff members and offenders. How that is done is a policy decision, not subject to review by the courts : " " Just v. British Columbia " " , " " [1992] 2 S.C.R. 1228 " " .” " [Emphasis added] [ 95 ] While Justice Wilson relied on Just , I agree this result is confirmed by the recent decision of our highest Court in Nelson . In its unanimous decision the Supreme Court of Canada outlines how to distinguish policy decisions from government activities that attract liability.

There are four factors which assist in this distinction: 1 . the level and responsibilities of the decision-maker; 2 . the process by which the decision was made; 3 . the nature and extent of budgetary considerations; and 4 . the extent to which the decision was based on objective criteria. [ 96 ] In Joint Reasons, Justices Karakatsanis and Martin discuss the four factors: [62] First: the level and responsibilities of the decision-maker. With this factor, what is relevant is how closely related the decision-maker is to a democratically-accountable official who bears responsibility for public policy decisions.

The higher the level of the decision-maker within the executive hierarchy, or the closer the decision-maker is to an elected official, the higher the possibility that judicial review for negligence will raise separation of powers concerns or have a chilling effect on good governance. Similarly, the more the job responsibilities of the decision-maker include the assessment and balancing of public policy considerations, the more likely this factor will lean toward core policy immunity. Conversely, decisions made

by employees who are far-removed from democratically accountable officials or who are charged with implementation are less likely to be core policy and more likely to attract liability under regular private law negligence principles ( Just , at pp. 1242 and 1245; Imperial Tobacco , at para. 87). [63] Second: the process by which the decision was made.

The more the process for reaching the government decision was deliberative, required debate (possibly in a public forum), involved input from different levels of authority, and was intended to have broad application and be prospective in nature, the more it will engage the separation of powers rationale and point to a core policy decision.

On the other hand, the more a decision can be characterized as a reaction of an employee or groups of employees to a particular event, reflecting their discretion and with no sustained period of deliberation, the more likely it will be reviewable for negligence. [64] Third: the nature and extent of budgetary considerations. A budgetary decision may be core policy depending on the type of budgetary decision it is.

Government decisions “concerning budgetary allotments for departments or government agencies will be classified as policy decisions” because they are more likely to fall within the core competencies of the legislative and executive branches (see, e.g., Criminal Lawyers’ Association , at para. 28). On the other hand, the day-to-day budgetary decisions of individual employees will likely not raise separation of powers concerns. [65] Fourth: the extent to which the decision was based on objective criteria.

The more a government decision weighs competing interests and requires making value judgments, the more likely separation of powers will be engaged because the court would be substituting its own value judgment ( Makuch , at pp. 234-36 and 238). Conversely, the more a decision is based on “technical standards or general standards of reasonableness”, the more likely it can be reviewed for negligence. Those decisions might also have analogues in the private sphere that courts are already used to assessing because they are based on objective criteria. [ 97 ] The Supreme Court provided two clarifications.

First, the mere presence of budgetary, financial, or resource implications does not determine whether a decision is core policy; it is one consideration among many. Second, the word " “policy” " may refer to anything from broad directions to a set of ideas or a specific plan. " “True” " or " “core” " policy is determined by the nature of the decision not by its format or how the government labels it. Ultimately, the separation of powers is the underlying rationale for shielding core policy from liability.

Policy choices are clearly within the role and competence of the legislative and executive branches of government.

The Supreme Court held core policy decisions are immune from negligence liability because the legislative and executive branches have core institutional roles and competencies that must be protected from interference by the judiciary’s private law oversight. [ 98 ] The relevant document to consider is Commissioner’s Directive 566-15, Closed Circuit Television Systems regarding video surveillance, and in particular, its direction concerning video camera surveillance for the " “leisure and recreation” " areas of medium security institutions such as BCI.

I will review this Commissioner’s Directive against four considerations identified in Nelson : 1. The level and responsibilities of the decision-maker: It is not disputed and I find the Commissioner of Corrections is the most senior executive of CSC, situated within the ambit of the Minister of Public Security or as the case may be at the time. This Directive is issued by the Commissioner. The Commissioner is close to the democratically elected and accountable Minister responsible to Parliament for Canada’s` correctional services. This militates in favour of this decision being a policy matter.

It is the Commissioner who decided that direct and constant video surveillance of the “leisure and recreation areas” of medium security institutions is not “required” but “permitted”. In my respectful view, the Commissioner’s responsibilities in making a regulation in this connection must include the assessment and balancing of public policy considerations set out in the CCRA including the need for prison security, the need to foster prisoner reintegration in the community, and the need for a degree of minimization as set out in subsections 3 (a), (

b) and 4 (c), (

d) of the CCRA . The task of melding the purposes of the CCRA set out in

section 3 with the guidelines set out in sections 4 and 30 for the purposes of making rules governing the day to day administration of the numerous correctional services facilities across Canada also points to a policy decision, and as noted, one made at the highest levels. All of this in my view strongly points toward core policy immunity. 2.

The process by which the decision was made: I agree with the Defendant that this decision also entails deliberation at the highest level within the CSC – by the Commissioner her or himself - and as noted already, necessarily involves the prospective balancing of the differing objectives set out in sections 3 and 4 of the CCRA , namely, security on the one hand, and reintegration and rehabilitation on the other, in the specific context in this case of Canadian medium security institutions.

It is also apparent the Commissioner’s decision on the issue of camera surveillance of “leisure and recreational areas” has broad application – it applies to every federal prison across Canada including every medium security prison such as BCI. And for all medium security prisons video surveillance is not mandatory, only “permitted”. It is also prospective in nature. There is no evidence one way or the other concerning the processes followed in connection with the making of the Directive. 3.

The nature and extent of budgetary considerations: 566-15, Closed Circuit Television Systems gives no indication as to any budgetary considerations made by the Commissioner. 4.

The extent to which the decision was based on objective criteria: The Commissioner was required to weigh competing interests, namely, the prevention of harm in the face of surveillance blind spots, on the one hand, and the need to encourage freedom of movement and responsible, socially acceptable behaviour, and the requirements of reintegration and rehabilitation in medium security institutions, on the other, all as per sections 3 and 4 of the CCRA .

In my respectful view, the weighing of these competing interests is well within the core responsibility and function of the executive branch. [ 99 ] On balance, and reviewing the four points noted in Nelson , I find the decision by the Commissioner to designate video surveillance in " “leisure and recreation areas” " as not mandatory but only " “permitted” " is a core policy decision made by the Commissioner. For the reasons mentioned, this core policy decision is consistent with the legislated objectives for medium security institutions in Canada as set out in the CCRA and the CCRR .

[ 100 ] BCI acted in accordance with 566-15, Closed Circuit Television Systems in not providing direct and continuous guard monitoring or video surveillance everywhere in its " “leisure and recreation areas” " .

CSC was under no mandatory duty or requirement to provide continuous video surveillance under this Commissioner’s Directive of the area claimed by the Plaintiff. [ 101 ] I am not persuaded the Plaintiff has established on a balance of probabilities that CSC was under a duty to provide constant video camera monitoring of the area the Plaintiff claims to have been assaulted. [ 102 ] I conclude the Defendant would not be liable to the Plaintiff for negligence in the area claimed, even if that was the case, which is was not, because of the Defendant’s immunity from suit concerning the core policy that video surveillance was not mandatory in " “leisure and recreation areas.” " [ 103 ] The Plaintiff’s claims in respect of negligent surveillance must therefore be dismissed for this reason as well.

B. Issue 2: Whether the Defendant’s servants, health care and other staff at BCI breached their duties to reasonably protect the safety and health of the Plaintiff by subjecting him to unreasonable conditions in transporting him to and from hospitals and in placing him in segregation rather than in health care - related vehicles and accommodation, thereby foreseeably causing him harm; [ 104 ] The Plaintiff makes two basic allegations in relation to his treatment by BCI Health Care staff and or prison staff.

First, he alleges negligence and breach of duty in that Health Care staff used a transport van to move him to and from hospitals on a number of occasions, instead of calling an ambulance. Second, he alleges negligence and breach of duty for the 16 days he spent in administrative segregation while waiting for surgery at Toronto’s Mount Sinai Hospital. [ 105 ] I will review each.

(1) Use of transport van versus ambulance [ 106 ] The record shows the Plaintiff was transported a number of times in a transport van including 1) to SMMH after his initial assessment by BCI Health Care staff on August 30, 2017; 2) on his return from SMMH after receiving an x-ray at approximately 12:30 a.m. on August 31, 2017; 3) from BCI to Mount Sinai Hospital in Toronto for further assessment on August 31, 2017; and 4) departure the same day and return to BCI at 0:30 am on September 1st. [ 107 ] I put these trips in context with related events as follows. [ 108 ] After the assault in the afternoon of August 30, 2017, the Plaintiff returned to his cell.

On subsequent video review by prison staff, he was seen holding his jaw. After he arrived in his cell, another inmate (not the Plaintiff) told prison Health Care staff at 4:25 p.m. the Plaintiff had " “fallen in the shower” " . This statement was not true. I accept the Plaintiff was more than likely assaulted. The Plaintiff obviously put up another inmate to tell Health Care staff his untruth about falling in the shower. [ 109 ] Upon being informed of his injury, four prison officers responded. They found the Plaintiff in his cell full clothed. Apparently the shower had been cleaned.

Five minutes later a BCI Health Care nurse attended to assess his situation and offer first aid. Fifteen minutes later the Plaintiff was taken to prison Health Care with a possible broken jaw, were the Plaintiff repeated the falsehood that he " “fainted” " in the shower. He said he had hurt his teeth/jaw. [ 110 ] At that time, he had no visible injuries except to his mouth.

BCI Health Care staff determined the Plaintiff has suffered an injury to his left jaw, but that a proper diagnosis required a further assessment at an outside hospital, namely South Muskoka Memorial Hospital (SMMH). [ 111 ] The Plaintiff deposes he was in pain while being transported from BCI to SMMH. He submits there is no evidence the Defendant’s servants attempted to use alternate transportation more conducive to his comfort. The Plaintiff also submits Health Care and other staff at BCI had a duty to minimize his discomfort and anxiety.

They knew his transport in a van foreseeably contributed to his pain and distress and yet did not take measures to address this, thereby exacerbating his pain and distress. [ 112 ] With respect, and while I agree the Plaintiff was in considerable pain and discomfort before setting out for SMMH, I am not persuaded the use of a transport van was negligent or inappropriate and find his allegations in this respect unfounded. [ 113 ] In answer to the Plaintiff’s allegations regarding use of the transport van versus an ambulance, the Court had the evidence of BCI’s Chief of Health Care, Johanna Kudoba, RN [Nurse Kudoba] who gave evidence by affidavit, on cross-examination and on re-direct. [ 114 ] Nurse Kudoba is a Registered Nurse with 28 years experience in CSC at the time of trial.

Nurse Kudoba was not at BCI when the assault occurred, but started the following month. Her testimony was direct, responsive and candid, and I accept it. [ 115 ] Nurse Kudoba confirms BCI Health Services staff determined a transport van was suitable to take the Plaintiff to SMMH because his injuries did not constitute a medical emergency in that the injury to his jaw was not life threatening, and he was both conscious and ambulatory. [ 116 ] In this connection, Nurse Kudoba provided uncontradicted evidence as to when an ambulance is required set out in Directive 800-4, Response to Medical Emergencies .

This Directive issued by the Commissioner of Corrections, gives institutional direction to CSC health services, including BCI’s Health Care staff, in determining medical response to situation.

[ 117 ] I accept Nurse Kudoba’s uncontradicted evidence that Commissioner’s Directive 800-4, Response to Medical Emergencies establishes CSC medical criteria for use of an ambulance. Her evidence which I accept given her professional qualifications and experience with CSC, confirmed the Plaintiff’s injury did not constitute a medical emergency in that (1) he was ambulatory, (2) that he was not in an altered state of consciousness, and (3) that there was no immediate threat to the Plaintiff’s health requiring medical intervention.

These three indicia govern the use of an ambulance by Health Care staff as set out in Commissioner’s Directive 800-4, Response to Medical Emergencies . I also find the use of a transport van decisions by BCI Health Care staff complied with these criteria. Because the Plaintiff’s situation was not a Medical Emergency as defined, use of an ambulance was not authorized by the Directive. Nurse Kudoba also testified that even if Health Care staff knew there was a fracture of the Plaintiff’s jaw, which they did not, that in itself would still not present a " “life-threatening emergency” " .

I agree with her assessment. [ 118 ] I acknowledge the Plaintiff believes his travel to and from hospital would have been more comfortable in an ambulance than in a transport van. However, there is no evidence in support of his beliefs in this respect. [ 119 ] Indeed and directly to the contrary, Nurse Kudoba testified an inmate with a facial injury would be handcuffed and required to sit up during transfer to an outside hospital, regardless of whether the transfer was by transport van or ambulance. In addition, an inmate would not be allowed to lie down in either an ambulance or a transport van.

These answers were elicited by the Plaintiff’s counsel in cross. I accept Nurse Kuboda’s evidence: 22 MR. SLOAN: Well, what I’m getting at is, 23 are you aware of the position, the physical positioning of 24 an inmate who is being transferred by the institutional van 25 as opposed to his physical condition and other aspects of 26 that that would be involved in his being transferred by 27 ambulance? 28 MS.

KUDOBA: I’m not sure I understand other 1 than I know if he’s going into an escort vehicle, he’s 2 handcuffed and sitting, and he would be handcuffed and 3 sitting on a stretcher in the back of an ambulance. 4 MR. SLOAN: Could he not be handcuffed and 5 lying on a stretcher in the back of an ambulance? 6 MS. KUDOBA: We wouldn’t lie him. We would 7 have him sitting up if he had a facial injury. [ 120 ] Deputy Warden James was asked in cross-examination if there would have been considerable jostling and swerving by the transport van that would have affected the inmate inside.

He answered, " “No” " , there would be no more than him driving to work in the morning, and that the route from BCI to SMMH consisted of maintained roads including the Gravenhurst Parkway. [ 121 ] Nurse Kudoba also testified in cross-examination that a transport van would have likely been the faster mode of transport from BCI to SMMH, as opposed to an ambulance. Nurse Kudoba testified an outside ambulance can take anywhere from 11 to 60 minutes to arrive at BCI.

By contrast, the Plaintiff was arranged to be transferred " “in the moment” " via prison transport van. [ 122 ] In terms of the Plaintiff’s allegation that he was jostled around in the van, the Plaintiff failed to provide evidence that he sustained any serious or lasting injury, or, and most materially that such injury would have been avoided if he had been transported by ambulance. [ 123 ] Nurse Kudoba also deposed to several other material points. The Plaintiff had no obvious swelling. He was fully ambulatory. He was free of abrasions; there was no deformity to his mandible regions.

He was able to speak and breathe normally. He was moving his jaw independently, had no swelling or discoloration, and a small laceration to the lower gum line, with bleeding under control. [ 124 ] Clinical documentation available in the Plaintiff’s file indicates that the seriousness of his injuries was not apparent at the time the decision was made to send him to SMMH.

Further, it is documented by a nurse on August 31, 2017 while the Plaintiff was at Mount Sinai Hospital, who made a report stating " “unable to classify injury yet.” " In the absence of radiology, it would not have been possible for prison Health Care to determine the seriousness of the injury before being transported to SMMH.

I accept this evidence. [ 125 ] The Health Care staff therefore arranged for the Plaintiff to be transported by transport van to SMMH the evening of the assault. [ 126 ] SMMH radiology testing confirmed a mandible fracture, and SMMH’s attending staff referred the Plaintiff to Mount Sinai Hospital in Toronto for possible surgical intervention to occur on August 31, 2017 at 1100hrs the next day.

The Plaintiff then returned from SMMH to BCI by transport van at approximately 0300hrs August 31, 2017 after Health Care service hours of operation to wait for transportation and escort to Mount Sinai. [ 127 ] The Plaintiff was moved by transport van to Mount Sinai Hospital in Toronto later that morning (the 31 st ). He was in what he described as pain " “++ through the roof.” "

[ 128 ] However, the Plaintiff’s health care file indicates the Plaintiff was medicated for his pain and offered a soft meal, which he accepted. [ 129 ] The Plaintiff was assessed at Mount Sinai in Toronto, and returned by transport van t

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