2022 FC, 2022 FC 1763

Date: 20221220 Docket: T-1471-15 Citation: 2022 FC 1763 Ottawa, Ontario, December 20, 2022 PRESENT: Mr. Justice Norris BETWEEN: RYAN RICARDO RICHARDS Plaintiff and HIS MAJESTY THE KING Defendant TABLE OF CONTENTS I. INTRODUCTION 3 II.

SUMMARY OF FINDINGS 6 III. BACKGROUND 10 A. Mr. Richards’ Application for Habeas Corpus 12 B. Other Litigation Concerning the Use of Administrative Segregation 14 IV. THE SEPTEMBER 30, 2013 INCIDENT 21 A. The Security Camera Video Recording 21 B. The Absence of Other Recordings of the Incident 24 C. Events Leading Up to the September 30, 2013 Incident 26 D. Events on September 30, 2013 27

(1) The Mid-Day Meal Delivery 27 (2) 12:28:00 p.m. to 12:43:43 p.m. 29 (

a) The Discharge of OC Spray 32 (

b) The Efforts to Subdue Mr. Richards 40 (

c) The Decontamination Shower and Afterwards 46

(3) The Post-Use of Force Medical Assessment 50 E. Mr. Richards’ Legal Claims in Relation to the Use of Force on September 30, 2013 53

(1) Private Law Claims 53

(2) Constitutional Tort Claims 55 V. THE SEPTEMBER 30, 2013, PLACEMENT IN ADMINSTRATIVE SEGREGATION 58 A. Introduction 58 B. Mr. Richards’ Legal Claims Regarding the Administrative Segregation Placement 60

(1) Private Law Claims 60

(2) Constitutional Tort Claims 62 VI. THE INVESTIGATION OF THE OCTOBER 2013 INCIDENT 63 A. The Assault Allegation 63 B. Administrative Segregation Placement at Springhill Institution 63 C. Reclassification to Maximum Security/Transfer to Atlantic Institution 66

D. Restoration of Medium Security Classification/Transfer to Dorchester Institution 68 E. The Findings of the Habeas Corpus Application Judge 68 F. Mr. Richards’ Legal Claims Relating to the Investigation of the Assault Allegation 71

(1) Private Law Claims 71

(2) Constitutional Tort Claims 75 VII. THE TRANSFER TO DORCHESTER INSTITUTION 78 A. Introduction 78 B. Mr. Richards’ Legal Claims Relating to Dorchester Institution 79 VIII. REMEDIES 80 A. Introduction 80 B. Private Law Damages 81

(1) General Damages 81 (

a) The September 30, 2013, Use of Force Incident 81 (

b) The Placement in Administrative Segregation at Springhill from September 30, 2013, until October 8, 2013 86 (

c) The Assault Investigation and Its Consequences 86

(2) Special Damages 88

(3) Punitive Damages 88 C. Damages as a Charter Remedy 89

(1) General Principles 89

(2) The Principles Applied 92 (

a) The September 30, 2013, Use of Force Incident 92 (

b) The Placement in Administrative Segregation at Springhill from September 30, 2013, until October 8, 2013 94 (

c) The Assault Investigation and Its Consequences 95 (

d) The Placement in Administrative Segregation at Dorchester from April 9, 2014, until September 22, 2014 96 IX. PRE- AND POST-JUDGMENT INTEREST 97 X. COSTS 98 XI. CONCLUSION 98 JUDGMENT AND REASONS I. INTRODUCTION [ 1 ] In 2013 and 2014, Ryan Ricardo Richards was an inmate at three federal penitentiaries in the Atlantic Region.

He alleges that during this time he was subjected to a prolonged course of unlawful treatment by Correctional Service Canada (“CSC”) employees and officials, including the excessive use of force, unwarranted institutional transfers, and placements in administrative segregation (commonly known as solitary confinement). In this action against the federal Crown, Mr.

Richards seeks, among other relief, damages for several private law torts he alleges were committed against him as well as damages for violations of his rights under the Canadian Charter of Rights and Freedoms . [ 2 ] The treatment of inmates in federal correctional institutions is governed by the Corrections and Conditional Release Act , SC 1992, c 20 (“ CCRA ”), the Corrections and Conditional Release Regulations , SOR/92-620 (“ CCRR ”), Directives issued by the Commissioner of CSC, and laws of general application such as the Charter , the Canadian Human Rights Act , RSC 1985, c H-6 , and the common law. [ 3 ] It should be observed at the outset that Mr.

Richards (who is self-represented) has a thorough understanding of the laws and policies governing CSC and a keen sense of his rights as an inmate. It is also fair to say that he left no stone unturned when he drafted the pleadings that commenced this action. This is not meant as a criticism. One can certainly understand why, from his point of view, it was prudent to frame the action as broadly as he could. At the same time, the broad scope and lack of focus of his pleadings created certain challenges for the Crown in defending the action and for the Court in adjudicating it.

[ 4 ] In September 2015, Mr. Richards brought two actions against the Crown in which he raised similar allegations against the same parties – the present action under Court File No. T-1471-15 and a second action under Court File No. T-1472-15. On the defendant’s motion, on November 24, 2015, Prothonotary Morneau ordered that the two matters be consolidated under T-1471-15. Prothonotary Morneau also struck out a number of the claims in both statements of claim on the basis that Mr. Richards had failed to exhaust the administrative remedies available to him under the offender grievance process. Mr.

Richards was directed to file an amended statement of claim in this matter, which he eventually did on June 24, 2016. [ 5 ] The amended statement of claim is still sweeping in its breadth, covering a wide range of private law claims as well as alleged breaches of Mr. Richards’ rights under sections 2(a) , 7 , 8 , 9 , 10 , 12 and 15 of the Charter . As well, in addition to monetary damages, Mr. Richards seeks declarations that various provisions of the CCRA and the CCRR were violated as well as an order of mandamus compelling the Commissioner of CSC to make certain changes to his correctional records.

Moreover, many of the documents included in the parties’ Joint Book of Documents at Mr. Richards’ request relate to matters that were struck from the original statements of claim (including numerous complaints and grievances concerning alleged misconduct by CSC in a multitude of respects), relate to matters that fall outside the temporal scope of this action, or are otherwise simply irrelevant. [ 6 ] Once the trial of this matter was underway, however, it became clear that the crux of the action was an incident at Springhill Institution on September 30, 2013, in which Mr.

Richards alleges he was subjected to an excessive use of force by CSC employees, his placement in administrative segregation for approximately one week following this incident, CSC’s investigation of an unrelated assault allegation in October 2013, and the consequences for Mr. Richards that flowed from that investigation, including a security re- classification, involuntary institutional transfers, and further placements in administrative segregation. These incidents were the focus of Mr. Richards’ own testimony as well as his cross-examination of the Crown’s witnesses.

While he did not expressly abandon his wider ranging claims, he did not press them, either. The Crown framed its defence to the action accordingly. [ 7 ] While the Crown defended the action on a number of grounds, it should be noted that there is no issue that the defendant would be vicariously liable for any wrongful acts found to have been committed by CSC employees or officials: see Crown Liability and Proceedings Act , RSC 1985, c C-50 , sub- paragraph 3 (b)(i). [ 8 ] The trial of this action proceeded over several weeks by way of videoconference. At the time, Mr.

Richards was an inmate at Cowansville Institution in Quebec. He participated in the trial virtually from there; counsel for the defendant participated virtually from Halifax. All of the witnesses also appeared virtually. [ 9 ] While it was less than ideal that the trial had to proceed by way of videoconference instead of in person in a courtroom, this was a necessary accommodation in light of the COVID-19 pandemic and prevailing circumstances at the time. I am satisfied that the parties were able to present their respective cases fully and fairly despite the challenges and limitations of this mode of proceeding.

II.

SUMMARY OF FINDINGS [ 10 ] In

summary, for the reasons set out in detail below, I have reached the following conclusions: • Mr. Richards was subjected to an excessive use of force at Springhill Institution on September 30, 2013, when members of the Emergency Response Team (“ERT”) sprayed him with OC spray (also known as pepper spray), subdued him with physical handling, restrained him with handcuffs, removed him from his cell, placed him in a shower, and eventually led him to the Administrative Segregation Unit.Their actions constituted the private law torts of battery and false imprisonment.Their actions also violated Mr.

Richards’ rights under sections 7 , 9 and 12 of the Charter . • The placement of Mr. Richards in the Administrative Segregation Unit from September 30, 2013, until October 8, 2013, was an unwarranted and unlawful deprivation of his liberty and security of the person interests.It therefore constituted the private law tort of false imprisonment.It also violated Mr. Richards’ rights under sections 7 , 9 and 12 of the Charter .As well, a strip search conducted in connection with this placement violated his rights under

section 8 of the Charter . • A CSC investigation into his alleged involvement in an attack on another inmate at Springhill Institution in late October 2013 led to Mr.

Richards being placed in the Administrative Segregation Unit again, being reclassified from medium to maximum security, and being transferred involuntarily from Springhill to Atlantic Institution.As found by the Nova Scotia Supreme Court in an application for habeas corpus , the reclassification and transfer decisions were unlawful.On the basis of the findings of the application judge (which I adopt as my own), this investigation was conducted negligently. • While Mr.

Richards’ initial placement in the Administrative Segregation Unit at Springhill on October 29, 2013, was lawful in light of the information available to CSC at that time, there was no lawful basis to keep him there after November 7, 2013.This placement in administrative segregation from that point until his transfer to Atlantic Institution on December 12, 2013, therefore constituted the private law tort of false imprisonment.It also violated Mr. Richards’ rights under sections 7 and 9 of the Charter .

On the basis of the Crown’s concession (which I explain in greater detail below), this prolonged placement in administrative segregation also violated Mr. Richards’ rights under sections 7 and 12 of the Charter independent of any connection to the negligent investigation. • On January 16, 2014, approximately one month after his arrival at Atlantic Institution, Mr.

Richards was placed in the Administrative Segregation Unit.He remained there until April 10, 2014.This placement together with the earlier placement in the Orientation Range constituted the private law tort of false imprisonment.These placements also violated Mr. Richards’ rights under sections 7 and 9 of the Charter . On the basis of the Crown’s concession, the prolonged placement in administrative segregation also violated Mr. Richards’ rights under sections 7 and 12 of the Charter independent of any connection to the negligent investigation. • After his application for habeas corpus was granted, Mr.

Richards was reclassified as medium security and transferred out of

Atlantic Institution.However, instead of being returned to Springhill, he was transferred to Dorchester Institution and placed in theAdministrative Segregation Unit there.Mr. Richards remained in administrative segregation at Dorchester from April 10, 2014,until September 22, 2014, when, at his request, he was transferred to Matsqui Institution in British Columbia.Mr.

Richards allegeshe was subjected to various forms of abusive treatment while at Dorchester.Since he either has or could have availed himself ofother effective remedies for his transfer to Dorchester and his treatment there, his causes of action in these respects are notproperly before the Court.As well, I am not satisfied that the placement in administrative segregation at Dorchester constituted theprivate law tort of false imprisonment, principally because Mr.

Richards remained there at his own request.I also find that there isan insufficient nexus between that placement and the earlier negligent investigation to ground the defendant’s liability in tort forthe administrative segregation placement at Dorchester.On the other hand, on the basis of the Crown’s concession, I find that theprolonged placement in administrative segregation at Dorchester violated Mr. Richards’ rights under sections 7 and 12 of theCharter. • For having been subjected to the foregoing unlawful conduct, Mr.

Richards is entitled to the private law remedy of damages aswell as damages as a remedy under subsection 24(1) of the Charter. I award Mr. Richards damages totalling $165,000.Thebreakdown of this award will be explained below. [11] For the sake of clarity, I confirm that, apart from those claims on which I expressly find in Mr. Richards’ favour, his action isotherwise dismissed. [12] More particularly, Mr. Richards alleges, among other things, that CSC failed to accommodate his religious practices (and evenwilfully impeded them on occasion) and that it engaged in religious profiling of him. On this basis, Mr.

Richards contends that CSCviolated his rights to freedom of religion and equality under, respectively, subsections 2(

a) and 15(1) of the Charter. While I find faultwith CSC in a number of ways, I can find no credible evidence that it acted in a discriminatory fashion, as Mr. Richards alleges. Thatbeing said, the matters of which Mr. Richards complains in these respects either were or could have been the subject of offendergrievances or complaints under the Canadian Human Rights Act. Those are the appropriate forums in which to resolve these matters.Likewise, Mr. Richards’ allegations of CSC misconduct in connection with his application for habeas corpus either were or could havebeen the subject of offender grievances.

Consequently, all of these matters fall outside the proper scope of this action and, accordingly,will not be considered further. [13] Finally, several of Mr. Richards’ claims are framed in terms of breaches of statutory duties, something that, standing on its own, isnot recognized as a tort in Canadian law: see The Queen (Can.) v Saskatchewan Wheat Pool, (SCC), [1983] 1 SCR 205;see also see Gregory v Canada, 2022 FC 342.

Generally speaking, the proper remedy for the breach of a statutory duty by a publicauthority is judicial review for invalidity rather than an action in tort: see Holland v Saskatchewan, 2008 SCC 42 at para 9. That beingsaid, while the failure of correctional officials to follow governing law and policy does not, standing alone, give rise to any form of tortliability, it can be relevant to the determination of the claims that are properly included in this action: see Odhavji Estate v Woodhouse,2003 SCC 69 at paras 30-31. III. BACKGROUND [14] Mr. Richards was born in Jamaica in November 1981.

He moved to Canada when he was a child. He is a Canadian citizen. Heidentifies as a Black man. He is a convert to the Islamic faith. [15] Mr. Richards completed high school but otherwise has had limited formal education. [16] Mr. Richards is intelligent, thoughtful, and articulate. He can also be demanding and inflexible. He would probably be the first toadmit that he is not always an easy person to deal with, especially in institutional settings. [17] Mr. Richards has been incarcerated since October 2001, when he was arrested and charged with second-degree murder. He was 19years of age at the time.

Following a jury trial, in February 2003 Mr. Richards was convicted of second-degree murder. He wassentenced to life imprisonment. [18] In March 2003, Mr. Richards was transferred from a local remand facility in Toronto to a federal penitentiary to serve his lifesentence. Since then, he has been an inmate in numerous federal correctional institutions across Canada. Some of the transfers betweeninstitutions were at Mr. Richards’ request; many others were involuntary. [19] These institutional transfers have posed many challenges for Mr.

Richards, who has repeatedly had to adjust to new settings, as wellas for CSC staff, who have had to learn how to work with him afresh after each transfer. Mr. Richards’ relationship with CSC has oftenbeen highly adversarial and, for better or for worse, this history has followed him from institution to institution. [20] Mr. Richards himself would probably acknowledge that, with the benefit of hindsight, he has not always chosen the best or mostconstructive ways to raise his concerns about how he has been treated by CSC.

Be that as it may, on more than a few occasions, hiscomplaints have been determined to be well-founded. As well, some CSC staff have understood the challenges Mr. Richards has faced,have seen his potential, and have engaged productively with him. The mutual respect between these particular individuals and Mr.Richards was evident to me throughout the course of this trial. [21] Mr. Richards’ institutional record as a federal inmate is far from unblemished. In 2004, he was convicted of possession of twoprohibited weapons and sentenced to imprisonment for three months concurrent to his life sentence.

In 2007, he was convicted ofaggravated assault on another inmate and sentenced to imprisonment for 18 months concurrent to his life sentence. Numerous otherincidents that did not result in criminal charges or convictions but that did give rise to various forms of institutional discipline (includingplacements in administrative segregation) and institutional transfers are also documented in Mr. Richards’ CSC records. [22] The events that underlie the present action occurred in 2013 and 2014, when Mr. Richards was an inmate at three correctional

institutions operated by CSC in the Atlantic Region: Springhill Institution in Nova Scotia, Atlantic Institution in New Brunswick, andDorchester Penitentiary in New Brunswick. Mr. Richards had been transferred from Ontario to Springhill involuntarily in 2010. Heremained in the Atlantic Region until September 2014, when he was transferred voluntarily to British Columbia. [23] Springhill and Dorchester are designated as medium security institutions; Atlantic is designated as maximum security.

At therelevant times, all three institutions had Administrative Segregation Units where inmates could be placed in what is commonly known assolitary confinement. [24] Apart from the incident involving the ERT officers on September 30, 2013, generally speaking there is little dispute about the eventsthat underlie this litigation or their legal implications. This is because of two important circumstances that provide the context in whichthe present action was litigated. The first is the disposition of an application for habeas corpus brought by Mr.

Richards in early 2014.The second is the disposition of other litigation concerning the use of administrative segregation in federal correctional institutions. A. Mr. Richards’ Application for Habeas Corpus [25] As mentioned above, and as will be discussed in greater detail below, in late October 2013, Mr. Richards was placed inadministrative segregation at Springhill as a result of the information suggesting that he had been involved in an attack on anotherinmate.

In December 2013, he was reclassified from medium to maximum security and then transferred involuntarily from SpringhillInstitution to Atlantic Institution because of this same information. [26] On November 26, 2013, Mr. Richards filed an application for habeas corpus in the Nova Scotia Supreme Court. At that time, theonly CSC decision under review was his placement in administrative segregation at Springhill.

Subsequently, however, the scope of thehabeas corpus application was broadened to include the lawfulness of the reclassification decision as well as the resulting involuntarytransfer to Atlantic Institution. By the time the habeas corpus application was heard, Mr.

Richards was no longer in administrativesegregation at Springhill, rendering that part of the application moot. (The procedural history of the habeas corpus application is set outin a preliminary ruling by the application judge, the Honourable Justice Van den Eynden, confirming the jurisdiction of the Nova ScotiaSupreme Court to hear the application even though Mr.

Richards had by then been transferred to a correctional institution in NewBrunswick: see Richards v Springhill Institution, 2014 NSSC 120 at paras 3-16.) [27] In a decision dated April 2, 2014, the application judge granted the application for habeas corpus: see Richards v SpringhillInstitution, 2014 NSSC 121. The Court concluded that the decisions to reclassify Mr. Richards from medium to maximum security andto transfer him involuntarily from Springhill to Atlantic were unlawful.

Appeals by the Crown with respect to the jurisdictional rulingand the merits of the habeas corpus application were dismissed by the Nova Scotia Court of Appeal on April 30, 2015: see SpringhillInstitution v Richards, 2015 NSCA 40. [28] As a result of the habeas corpus decision, CSC restored Mr. Richards’ medium security classification and transferred him out ofAtlantic Institution. CSC determined, however, that it was not appropriate to return him to Springhill; instead, Mr.

Richards wastransferred to Dorchester Institution. [29] In concluding that the December 2013 reclassification and transfer decisions were unlawful, the application judge made severaladverse findings concerning CSC’s investigation of the assault allegation against Mr. Richards. Quite properly, in the presentproceeding, the Crown did not seek to re-litigate matters determined in Mr. Richards’ favour in the habeas corpus application. TheCrown accepts that it is bound by the application judge’s findings.

This has narrowed the points in dispute in this regard significantly.The relevant findings will be discussed in detail below. B.

Other Litigation Concerning the Use of Administrative Segregation [30] The resolution of parallel litigation concerning the use of administrative segregation in federal correctional institutions has alsonarrowed the contentious issues in this action. [31] By way of further background, the CCRA had long provided for the placement of federal inmates in administrative segregation.While conditions in administrative segregation units may vary somewhat from institution to institution, fundamentally these units were a"“prison within a prison”" (Martineau v Matsqui Disciplinary Board, (SCC), [1980] 1 SCR 602 at 622).

Sometimesthey were used for the safety of the inmate; often they were used for disciplinary purposes or for reasons of institutional safety orsecurity. [32] Whatever the reason for the placement, individuals placed in an administrative segregation unit would be confined to a small cellalone for 22 hours or more each day. They would be completely removed from the general prison population, they would have littledirect contact with correctional staff, and access to programs and amenities (including exercise and fresh air) would be either highlyrestricted or prohibited entirely.

As a result, individuals held in administrative segregation would have little meaningful human contact –hence the use of the term "“solitary confinement”" to describe this practice. [33] The harmful effects of prolonged periods in solitary confinement are well-documented and the practice of using solitaryconfinement has been widely condemned.

For example, the United Nations Standard Minimum Rules for the Treatment of Prisoners(also known as the Nelson Mandela Rules) prohibits solitary confinement for longer than 15 days: see Rules 43-45. [34] The use of solitary confinement in federal correctional institutions has been challenged successfully in several recent Canadian courtproceedings. [35] In Canadian Civil Liberties Association v Canada (Attorney General), 2019 ONCA 243, 144 O.R. (3d) 641, the Court of Appeal forOntario struck down sections 31 to 37 of the CCRA, which authorized administrative segregation in federal penitentiaries, on the groundsthat administrative segregation amounts to solitary confinement and that subjecting an inmate to solitary confinement for longer than 15

days constitutes cruel and unusual punishment contrary to

section 12 of the Charter . The Court stated that " “prolonged administrative segregation [i.e. more than 15 days] causes foreseeable and expected harm which may be permanent, and which cannot be detected through monitoring until it has already occurred” " (at para 5). The Court of Appeal concluded that the CCRA lacked the safeguards necessary to prevent inmates from remaining in segregation for more than 15 days and, thus, to prevent grossly disproportionate treatment: see paras 113-15. Notably, the federal Crown had not appealed the finding of the application judge below that the legislation also violated

section 7 of the Charter because it does not provide for an independent review of the decision to place an inmate in administrative segregation: see Corporation of the Canadian Civil Liberties Association v Her Majesty the Queen , 2017 ONSC 7491 , 140 O.R. (3d) 342. [ 36 ] A few months later, in British Columbia Civil Liberties Association v Canada (Attorney General) , 2019 BCCA 228 , 377 C.C.C. (3d) 420, the British Columbia Court of Appeal struck down sections 31 to 37 of the CCRA on the grounds that they violated

section 7 of the Charter by authorizing prolonged administrative segregation (i.e. more than 15 days) that deprives persons of life, liberty or security in a manner that is grossly disproportionate to the law’s objectives, and because the provisions did not provide for independent review of administrative segregation decisions. [ 37 ] The Attorney General of Canada was granted leave to appeal both of these decisions to the Supreme Court of Canada but it discontinued the appeals in April 2020.

Meanwhile, in November 2019 the relevant provisions of the CCRA were repealed and replaced with provisions establishing and regulating the use of what are now termed structured intervention units: see sections 31 to 37.91 of the current Act. [ 38 ] At the same time as these constitutional challenges to the use of administrative segregation were proceeding, class actions on behalf of federal inmates who had been confined in administrative segregation were also underway. For present purposes, the most pertinent of these class actions is Reddock v Canada (Attorney General).

This action was commenced in the Ontario Superior Court of Justice in 2017. It was certified as a class proceeding in June 2018: see Reddock v Canada (Attorney General) , 2018 ONSC 3914 .

A second class action was also certified in Ontario: see Brazeau v Canada (Attorney General) , 2016 ONSC 7836 . (A third class action was also underway in Quebec on behalf of federal inmates in that province.) [ 39 ] In Reddock , the class is defined to consist of all offenders in federal custody who were involuntarily subjected to prolonged (defined as at least 15 consecutive days) administrative segregation between November 1, 1992 and the present, and were still alive on March 3, 2015.

In Brazeau , the class consists of offenders in federal custody between November 1, 1992 and the present who were placed in administrative segregation, were diagnosed with or suffered from serious mental illness, and were still alive on July 20, 2013. The members of the Brazeau class are excluded from the Reddock class. [ 40 ] In March 2019, partial

summary judgment in favour of the representative plaintiff was granted in Brazeau : see 2019 ONSC 1888 . In August 2019,

summary judgment in favour of the representative plaintiff was granted in Reddock : see 2019 ONSC 5053 . In both cases, the motion judge (the Honourable Justice Perell) found Canada liable in damages for breach of the class members’ Charter rights. In Reddock , the motion judge found that Canada was also liable for systemic negligence in the use of administrative segregation, although he awarded only one set of damages to account for both the breach of the Charter and the negligence claim.

In both matters, the motion judge awarded a base level of aggregate damages and directed that a process for adjudicating individual claims by class members be established. [ 41 ] The federal Crown appealed the

summary judgments in both Brazeau and Reddock . The central issue in both appeals was the Crown’s liability for damages for breaches of sections 7 and 12 of the Charter . The finding of liability on the basis of systemic negligence in Reddock was also challenged on appeal. [ 42 ] The two appeals were heard together and dealt with in a single decision: see Brazeau v Canada , 2020 ONCA 184 . The Court of Appeal for Ontario allowed the appeal in Reddock on the issue of systemic negligence but otherwise upheld the

summary judgment findings on liability and damages. The Crown’s liability was also upheld in Brazeau but the appeal was allowed with respect to the aggregate damages award and that issue was remitted to the motion judge for reconsideration. That reconsideration was completed later in 2020: see Brazeau v Canada (Attorney General) , 2020 ONSC 3272 . [ 43 ] Against this jurisprudential backdrop, in the present matter, the Crown does not dispute that prolonged placement in administrative segregation (i.e. greater than 15 days) violates sections 7 and 12 of the Charter .

Nor does the Crown contest that, at least in principle, Mr. Richards is entitled to damages on this basis for his prolonged placements in administrative segregation. Rather, the Crown contends that, since Mr. Richards did not formally opt out of the Reddock proceeding (the deadline to do so absent leave of the Court was September 19, 2018), he is a member of the class and is therefore entitled to damages in that proceeding. Accordingly, the Crown maintained that Mr.

Richards should pursue any relief in this regard through that proceeding (including the individual claims determination process, if he so chooses). [ 44 ] On the other hand, Mr. Richards has confirmed repeatedly and in no uncertain terms that he has had and will have nothing to do with this other litigation. [ 45 ] In a pre-trial motion, the Crown sought an order under subsection 50(1) of the Federal Courts Act , RSC 1985, c F-7 (“ FCA ”) staying those aspects of the present action relating to Mr. Richards’ placements in administrative segregation.

On March 1, 2021, I dismissed the motion from the bench for brief oral reasons. Written reasons were provided subsequently: see Richards v Canada , 2021 FC 231 . [ 46 ] In closing submissions at trial, the Crown renewed its request that this Court defer to the Reddock class proceeding for the determination of any damages to which Mr. Richards is entitled due to his prolonged placements in administrative segregation.

As I indicated at that time, I was still not persuaded that doing so would be in the interests of justice given the particular circumstances of this case. [ 47 ] The drafting of these reasons has been a very lengthy process. Given the amount of time that had passed since the conclusion of the hearing, last spring the Court invited the parties to provide an update on any relevant developments in the class proceedings.

[ 48 ] The Crown provided a helpful

summary of the claims determination process that had been established in the class proceedings. In brief, the Crown confirmed that, as a member of the Reddock class, Mr. Richards would be eligible for an equal share of the $28 million lump sum award in the class actions. It was estimated that, at a minimum, he would be entitled to an award of approximately $2,200: see Brazeau v Canada (Attorney General) , 2020 ONSC 7229 at para 50 . Alternatively, through individual claims processes, he could seek damages of either up to or more than $50,000 (the amount claimed would determine the procedure to be followed).

As I understand the latter processes, even if Mr. Richards were to advance an individual claim, he would still be entitled to a minimum share of the aggregate award. [ 49 ] Mr. Richards confirmed once again that he had no intention of advancing any claims through the class proceeding. [ 50 ] The Crown also noted that the eligibility period for making a claim as a Reddock class member would be closing on September 7, 2022. That deadline has now come and gone. There has been no indication that Mr.

Richards changed his mind and submitted a claim in the class proceeding. [ 51 ] While the Crown would obviously have preferred that this aspect of the case be dealt with elsewhere, it nevertheless acknowledged that it was bound by the determinations that prolonged administrative segregation violates sections 7 and 12 of the Charter and that this potentially gives rise to an entitlement to damages as a remedy. This has further narrowed the contentious issues in the present action. IV. THE SEPTEMBER 30, 2013 INCIDENT A.

The Security Camera Video Recording [ 52 ] Before examining the September 30, 2013, incident in detail, it may be helpful to begin by describing a key piece of evidence on which several of my factual determinations turn. This is a video recording of events in the area of Mr. Richards’ cell at Springhill Institution on the day in question. [ 53 ] The unit in which Mr. Richards’ cell was located has two levels. Mr. Richards’ cell was on the upper range of the unit. He was the sole occupant of the cell. [ 54 ] There was a fixed security camera in the corridor immediately outside Mr. Richards’ cell.

A recording made by this camera on September 30, 2013, was preserved by CSC following the incident and was entered into evidence. [ 55 ] The camera provides a view down the length of the corridor on the upper range of the unit. There is no dispute that it does not capture the entire corridor. There is another

section of the range behind this camera that was presumably covered by another camera (or cameras). There is no evidence concerning whether any effort was made to secure recordings from any other security cameras on the range or anywhere else Mr. Richards was taken on September 30, 2013. In any event, no such recordings were produced in this trial. [ 56 ] The security camera that made the recording that was preserved is mounted at roughly ceiling height; as a result, the view is from above and on a slight downward angle. The area covered by the camera is well lit with natural and artificial lighting.

The video is in colour. The picture quality is reasonably good. There are no apparent gaps in the recording that was preserved. There is no sound. [ 57 ] As it appears in the recording, Mr. Richards’ cell door is the one closest to the camera on the right hand side of the frame. The locking mechanism for the cell door is to the left of the door at roughly waist height. The cell door opens inwards. Viewed from the outside, the door swings open from left to right. There is a small observation window in the door.

While it cannot be seen on the video, there is no dispute that the window can be covered from the inside by a " “blocker” " or privacy screen. [ 58 ] The security camera has an unobstructed view of the area immediately outside Mr. Richards’ cell as well as down the length of the range. On the left hand side of the image is a metal railing overlooking the floor below. Also on the left hand side is a metal stairway leading down from the upper range to the lower floor. Most but not all of the stairway is visible in the video (the lowest steps are not visible).

The camera captures only a small part of the lower floor. While it cannot be seen in the video, there is no dispute that there is a security " “bubble” " on the main floor below the area depicted in the recording. This is a secure area from which correctional staff monitor the unit. [ 59 ] The video recording has a date stamp of September 30, 2013. At the beginning of the video, the time stamp reads 12:28:00 p.m. At the end, it reads 12:44:00 p.m. Someone from CSC – it is not clear who – made the decision to retain only this part of the recording for the day in question.

While nothing relevant occurred in the area covered by the camera after 12:44:00 p.m., relevant events did occur in that area prior to 12:28:00 p.m. Those events will be discussed below. No evidence was presented as to why more of the recording was not preserved. [ 60 ] The ERT members involved in the incident on September 30, 2013, are all clearly visible on the video recording. They are all wearing essentially identical tactical gear consisting of helmets, visors, face masks, body armour, jackets, pants, gloves, and heavy boots.

It is generally possible to identify them and tell them apart on the video by the numbers on the back of their uniforms. These numbers have different colours to denote the officer’s home institution: red for Springhill and white for Dorchester. (ERT officers from Atlantic had yellow numbers but it does not appear that any of these officers were involved in the incident.) As well, the officers who testified at trial were able to identify themselves in the video and, in some cases at least, their colleagues as well.

There is generally no issue as to the identities of the ERT members who had direct involvement with Mr. Richards during the material times on September 30, 2013. [ 61 ] On the video recording, the incident involving Mr. Richards and the ERT members begins at 12:28:57 p.m., when the first three officers arrive at his cell door. The recording captures what happens next but only in part. Crucially, nothing that happens inside Mr. Richards’ cell or later in the shower is within view of the camera. [ 62 ] Mr.

Richards himself is not visible in the recording until he is led out of his cell at 12:30:15 p.m., after he has been pepper sprayed,

subdued by the officers, and handcuffed. He then disappears off camera. He reappears at 12:41:58 p.m., as ERT officers guide him along the hallway, down the stairs, and out of view again. This is the last time Mr. Richards is seen in the video. [ 63 ] While the video recording is highly reliable evidence of what happened within the camera’s view, unfortunately it does not capture all the material events or circumstances. Nevertheless, as I will explain below, I find that on the central issue of whether the use of force on September 30, 2013, was justified, the video supports Mr.

Richards’ account and contradicts the officers’ accounts. B. The Absence of Other Recordings of the Incident [ 64 ] As will also be discussed below, Mr. Richards urges me to find fault with the ERT officers and to draw an adverse inference about the credibility of their evidence because they did not record the entire use of force incident with a hand held video camera. [ 65 ] Mr. Richards is quite right that CSC procedures call for video recording from the outset when there is a pre-planned use of force, including when inmates are forcibly removed from their cells. However, the procedures Mr.

Richards points to only apply when there is a pre-planned cell extraction or other use of force. While there is no question that Mr. Richards was removed from his cell by the use of force on September 30, 2013, I find that this was not a pre-planned cell extraction in the sense governed by the procedures for such things. Rather, it was the result of circumstances that arose without warning and escalated suddenly. In other words, at least at the outset, it was a spontaneous use of force.

While I also find, as I explain below, that it was the ERT officers themselves who escalated the incident, there is no evidence that this was their intention when they first responded to the emergency cell call. Nor is there any evidence that the officers deliberately failed to obtain a camera in order to avoid having their actions recorded. Thus, I do not fault the officers for not having a hand held video camera with them at the outset of the incident.

I do find, however, that there was no good reason for the officers not to obtain a camera to record the incident once it began to unfold as it did, particularly once Mr. Richards was securely in the officers’ custody and control. There was ample time and more than enough manpower to do so. This will be discussed further below. [ 66 ] Furthermore, while a hand held video camera was eventually obtained and used to record the post-use-of-force medical assessment of Mr.

Richards in the Administrative Segregation Unit, apparently the recording could not be downloaded from the camera and, as a result, no video of that assessment is available. This will be also discussed in more detail below. [ 67 ] It goes without saying that a proper video recording of the incident (certainly as a whole but even in part) would have left much less room for debate about what exactly happened on September 30, 2013. Fortunately for this Court’s truth-seeking function, the video from the one security camera was preserved.

I will address below the evidentiary implications of the failure to otherwise record the incident. C. Events Leading Up to the September 30, 2013 Incident [ 68 ] In the mid-afternoon of September 25, 2013, a Security Intelligence Officer (“SIO”) at Springhill was informed by a source of unknown reliability that the source had observed a .22 caliber bullet in the institution.

If true, this could pose a significant risk to the safety and security of inmates and staff. [ 69 ] On the basis of this report, Lorne Breene, the Acting Warden at the time, ordered that the institution be locked down so that a thorough search for the ammunition could be conducted.

This would include a physical search of every inmate as well as their cell and personal effects. (The authority to order a search in such circumstances is provided for in subsection 53(1) of the CCRA .) While the institution was locked down, inmates remained in their cells 24 hours a day barring exceptional circumstances. [ 70 ] CSC records indicate that the search for the ammunition lasted from September 26 through October 5, 2013. There is no evidence that any ammunition was ever found. [ 71 ] Members of the Springhill ERT were responsible for conducting the search for the ammunition.

They were assisted by ERT officers from two other institutions, Dorchester and Atlantic. In total, over 50 ERT members were deployed at Springhill during the lockdown.

As well, since the suspected presence of the bullet had led to a work refusal by unionized correctional staff on the basis of workplace safety concerns, ERT officers were also responsible for daily tasks such as delivering meals to inmates, escorting inmates to the shower, and escorting medical staff who were providing medication or otherwise attending to inmates at their cells. [ 72 ] It is fair to say that the period of the lockdown was very stressful for inmates and CSC staff alike. D. Events on September 30, 2013

(1) The Mid-Day Meal Delivery [ 73 ] Like all other inmates, Mr. Richards had been confined to his cell since the afternoon of September 25, 2013. He was particularly frustrated with how his meals were being delivered to him by ERT officers. According to Mr. Richards, the officers were " “playing games” " with him when they delivered his meals. Sometimes they would order him to stand in one place while the meal was placed in his cell, other times they would order him to stand somewhere else for no apparent reason. Sometimes his meals would just be tossed into his cell, ending up on the floor.

One time, according to Mr. Richards, his meal landed in the toilet. As well, often he was not being given the correct meal (he was on special religious and medical diets and he does not eat meat), leaving him to go hungry. [ 74 ] Finally, at lunch time on September 30, 2013, Mr. Richards had had enough. When his meal was delivered to him he asked to speak to the Unit Manager, Kathryn Paul. The ERT officers delivering the meal refused to get the manager and left. Mr. Richards then pushed the call button in his cell.

When the cell call button is pushed, it triggers an alarm in the bubble on the main floor of the unit. It is meant to be used only in an emergency. [ 75 ] I pause at this point to note that it is an admitted fact that Ms. Paul was on duty on the unit and was present in the bubble at the

material times on September 30, 2013. For personal reasons, she was not available to testify as a witness at the trial. [ 76 ] After Mr. Richards pushed the cell call button, some ERT officers came to his cell. Mr. Richards told them he wanted to speak to Ms. Paul. According to Mr. Richards, the officers responded by telling him to " “shut your fucking pie hole.” " They refused to contact Ms. Paul or let Mr. Richards speak to her. They also cautioned him not to push the call button again.

There is no evidence as to who these ERT officers were. [ 77 ] None of these events are captured on the video recording entered into evidence because they all would have occurred before the start time of the segment that was preserved. It is most unfortunate that more video evidence was not preserved by CSC. [ 78 ] That being said, it is not necessary for me to determine whether things up to this point happened exactly as Mr. Richards has described them. This is because there is no dispute that the incident in question was precipitated by ERT officers responding to yet another cell call triggered by Mr.

Richards. [ 79 ] Mr. Richards testified that he activated the cell call button more than once at the mid-day meal time on September 30 th . This is confirmed by contemporaneous CSC records. For example, in his Statement/Observation Report concerning the September 30 th incident, Correctional Officer (“CO”) Talbot (one of the officers involved in the use of force incident) notes that Mr.

Richards had " “covered his cell window and repeatedly pressed his cell call.” " CO Talbot also confirmed this in his trial testimony, stating that before he went up to the cell he had been informed that " “the cell call was hit repeatedly” " and the window was covered. [ 80 ] Whatever exactly may have been happening during meal deliveries over the preceding days or earlier on September 30 th , it is sufficient for present purposes to say simply that I accept Mr.

Richards’ evidence that by mid-day on September 30 th he was frustrated with how he was being treated, that he pushed the cell call button, that the attending officers refused to let him speak to Ms. Paul, that after the officers left he pushed the call button again, and that he lowered the privacy screen on his cell door window. It is this second pushing of the call button that precipitated what happens next. (2) 12:28:00 p.m. to 12:43:43 p.m. [ 81 ] Five ERT members were directly involved with Mr.

Richards in the first stages of the use of force incident: Robert Henderson (#24, from Springhill), William Jobes (#3, from Springhill), Troy Talbot (#34, from Dorchester), Dominique Gosselin (#43, from Dorchester), and Jimmy Sproule (#41, from Dorchester). CO Talbot was the team leader. The Crown called all of these officers as witnesses except CO Sproule (who had very limited contact with Mr. Richards in any event, as the video confirms). [ 82 ] The initial encounter with Mr. Richards involves three officers: Henderson, Jobes and Talbot.

The officers testified that immediately prior to the incident, they were attending to other matters on the range. The video recording shows that at 12:28:48, the three walk up the stairs from the main floor together: Henderson first, followed by Jobes and then Talbot. They reach Mr. Richards’ cell door in the same order. While this cannot be seen in the video, there is no dispute that the small window in Mr. Richards’ cell door is covered from the inside by a privacy screen. [ 83 ] CO Henderson knocks on the cell door and appears to say something to Mr. Richards through the door.

CO Jobes takes out a set of keys and begins to unlock the door. CO Talbot takes out a canister of OC spray. With both arms extended in front of him at chest height, CO Talbot aims the OC canister at the cell door, which is still closed. [ 84 ] The three officers are standing shoulder to shoulder directly in front of the door: Talbot is in the middle, Jobes is to his left, and Henderson is to his right. Between the knock on the door and the door starting to swing open after it was unlocked, no more than 10 seconds has elapsed. [ 85 ] CO Jobes pushes on the door to swing it open.

Almost as soon as the door starts to open, CO Talbot discharges OC spray into the cell. He discharges a second burst of OC spray a moment later. Mr. Richards cannot be seen on the video but there is no dispute that the OC spray was aimed at him. [ 86 ] At this point, CO Gosselin comes running up the stairs. All four officers then enter Mr. Richards’ cell. CO Sproule also comes up the stairs and remains outside the cell looking in. A few moments later, CO Talbot backs out of the cell and stands at the door looking in. [ 87 ] Mr. Richards is led out of his cell at 12:30:15.

He is wearing baggy, knee-length shorts and no shirt. His wrists are handcuffed behind his back. He is standing but is doubled over. CO Henderson is holding Mr. Richards by one arm; CO Gosselin is holding him by the other arm. CO Jobes then follows them out of the cell. Mr. Richards is in obvious physical distress. [ 88 ] After a brief pause outside the cell, the officers guide Mr. Richards down the corridor and start taking him down the stairs. They then reverse course and guide Mr. Richards back towards and then past his cell. They go out of view once they pass Mr. Richards’ cell.

It appears that one of the officers had suggested using the shower next to Mr. Richards’ cell to try to wash off the OC spray. [ 89 ] Mr. Richards disappears off-camera at 12:30:51. He re-appears at 12:41:58. There is no dispute that during this time he was placed in a shower on the upper range. While he was in the shower, officers are visible on the video recording from time to time. It appears to have been officers Henderson and Gosselin who attended to Mr. Richards in the shower for at least part of the time; the other three officers stood by in the general vicinity.

At one point during this time, CO Talbot can be seen leaving the area, going downstairs, and then returning a few minutes later. CO Jobes can be seen doing the same thing a few minutes later. [ 90 ] Eventually, at 12:41:15, another group of five ERT officers come up the stairs together, bringing the total number of officers to 10. These officers mill about in the area outside Mr. Richards’ cell briefly until Mr. Richards reappears after the shower.

Two officers from this second group (#8 and #15, who have not been identified but who, given the white numbers on their uniform, appear to have been from Dorchester) take physical control of Mr. Richards, walk him backwards down the stairs, and take him out of view. Mr. Richards’ hands are still cuffed behind his back. He is still in obvious physical distress.

[ 91 ] Most of the events I have just described are clearly depicted in the video. However, three important things cannot be seen: (1) what Mr. Richards was doing when the door to his cell first opened; (2) how the officers subdued Mr. Richards inside his cell; and (3) how the officers handled Mr. Richards during the decontamination shower and afterwards. Moreover, since there is no sound, there is no recording of what anyone was saying during the incident. Mr. Richards and the officers give diametrically opposing accounts of all of these things. (

a) The Discharge of OC Spray [ 92 ] Looking first at the discharge of OC spray, according to Mr. Richards, after he triggered the cell call again, he heard a knock on the door and someone told him to remove the privacy screen from his window. The door then opened suddenly and without warning he was hit in the face with OC spray. On Mr. Richards’ account, he was simply standing in his cell when the OC spray was discharged at him. He maintains that he had done nothing to warrant this use of force.

On the other hand, according to the officers, the use of OC spray was either a reasonable and proportionate response to an apprehended threat posed by Mr. Richards or it was necessary to overcome Mr. Richards’ refusal to comply with their directions (or both). [ 93 ] The incident clearly escalates with the officers’ decision to open Mr. Richards’ cell door. While Mr. Richards questions why this even happened and why the officers did not try to deal with the situation in some other way first, I find that, in the circumstances, it was reasonable and appropriate for the officers to open the door.

It is important not to judge that decision in light of what happened afterwards. Equally, it does not follow from the fact that the officers were warranted in opening the door that their subsequent actions were also justified. [ 94 ] There is no dispute that Mr. Richards had pressed the cell call button more than once. Ms. Paul, the Unit Manager, was in the bubble and would have noted that the alarm had been triggered again. I find that, as the Unit Manager, she is likely the person who then asked one or more of the ERT officers to go up to Mr. Richards’ cell to determine what the problem was.

None of the ERT officers had a clear recollection of what exactly they were told when they were asked to check on Mr. Richards but I find it is more likely than not that the first officers who attended had been told that he had activated the cell call button again (after having done so just a short time earlier). [ 95 ] As I have already noted, Ms. Paul did not testify at the trial so we do not have the benefit of her evidence on this point. At the same time, there does not appear to be any dispute about what led the officers to go up to Mr.

Richards’ cell. [ 96 ] Considering all the circumstances, including what had gone on immediately before, I find it unlikely that, when they went up to his cell, the first attending officers actually believed that Mr. Richards was in medical distress or otherwise required urgent attention. Rather, they would have believed that Mr. Richards was triggering the cell call improperly. At the same time, they could not simply ignore the alarm; they had a responsibility to check on Mr. Richards’ welfare and to deal with whatever it was that had caused him to trigger the alarm again. Since Mr.

Richards had covered the window in his cell door, the officers had to open the door to check on him. Although it could be said that the officers should have given Mr. Richards more than a couple of seconds to remove the window covering, they had no reason to think that he would have done so if he had been given that opportunity. [ 97 ] While I thus accept that it was reasonable and appropriate for the officers to open Mr. Richards’ cell door, I do not believe the officers’ accounts of what Mr.

Richards was doing when the door opened, nor do I accept their rationales for why they acted as they did once the door was open. Rather, I believe Mr. Richards’ account of what happened next. [ 98 ] I make these findings for the following reasons. [ 99 ] First, the officer who discharged the OC spray – CO Talbot – has given materially different accounts of Mr. Richards’ behaviour when the door opened. He testified that when the door was opened, Mr. Richards presented himself in a " “threatening” " and " “aggressive” " manner and this was why he discharged the OC spray.

On the other hand, in the Statement/Observation Report that he completed on the day of the incident, CO Talbot wrote: " “The door was partially opened and the subject was physically uncooperative and non-compliant to direction. OC deployed.” " There is nothing in the report about Mr. Richards being threatening or aggressive. [ 100 ] Similarly, in a Use of Force Report CO Talbot also completed on September 30, 2013, he described the events at Mr. Richards’ cell as follows: On the above date and time the subject was non-compliant and physically uncooperative. He covered his cell window and refused to uncover.

Subject was given direction but physically uncooperative. OC deployed and physical handling required to gain control and apply cuffs. [ 101 ] As with his other written report on the day of the incident, CO Talbot does not say anything here about Mr. Richards being threatening or aggressive towards the officers. Rather, the clear implication of both reports is that the OC spray and physical handling was used because Mr. Richards had failed to comply with directions from the officers. [ 102 ] I find there to be material discrepancies between CO Talbot’s trial testimony and his earlier accounts of the incident.

I also find that the officer has now recast his explanation for the use of force because what he wrote in the earlier reports is obviously inconsistent with what the video recording depicts. Critically, the video recording clearly shows that Mr. Richards was given no time to comply with directions between when the door was opened and when the OC spray was deployed. The two things happened virtually simultaneously. This gives rise to serious concerns about the credibility of CO Talbot’s trial testimony regarding Mr.

Richards’ demeanor when the door first opened. [ 103 ] Second, in his trial testimony, CO Henderson describes Mr. Richards as moving rapidly towards the officers when the door was opened. Neither of the officers next to him (Talbot and Jobes) observed this. Moreover, CO Henderson does not say anything about Mr. Richards rushing towards the officers in his Statement/Observation Report on the incident (completed on October 4, 2013). Instead, he describes Mr. Richards as " “standing in an aggressive stance and acting in an aggressive manner.” " No further details are provided in the report.

CO Henderson acknowledged that this was " “not as descriptive” " as his testimony but he insisted he meant the same thing – that

Mr. Richards had rushed towards the door. I am unable to accept this explanation for what I find to be a material discrepancy in hisaccounts. I find CO Henderson’s testimony to be a significant embellishment of what he actually observed. It is also significant that thewritten report provides no details at all to support the bald assertion that Mr. Richards was "“standing in an aggressive stance and actingin an aggressive manner”" when the door opened.

One is also left to wonder how CO Henderson even had the chance to form thisimpression in the split second between the door opening and the OC spray being deployed. [104] For his part, CO Jobes testified that he was unable to see Mr. Richards when the door first opened. This is somewhat difficult tobelieve given that the video clearly shows him standing right at the doorway and pushing on the door to open it.

On the other hand,given where he can be seen to be standing in the video recording, his view into the cell may well have been obstructed by the door frame.In any event, since he offers no evidence on what Mr. Richards was doing when the door first opened, his testimony provides no supportfor the accounts of the other officers. [105] Third, CO Jobes testified that he recalls CO Talbot giving Mr. Richards directions before deploying the OC spray. This isinconsistent with the video recording.

As well, this important detail is not mentioned in the Statement/Observation Report CO Jobesprepared about the incident on October 4, 2013. Indeed, this report is completely bereft of detail, stating only that CO Jobes was"“involved in a spontaneous use of force”" on Mr. Richards. For his part, CO Talbot, says nothing about giving Mr. Richards directions(apart from the direction to remove the covering from his cell window, which must have been given before the door was opened). Forthese reasons, I reject CO Jobes’ evidence that directions were given to Mr.

Richards after the cell door opened and before the OC spraywas deployed. [106] Fourth, as I have already indicated, both of the justifications for using the OC spray that emerge from the evidence of the Crown’switnesses (to deal with an apprehended threat and/or to bring Mr. Richards into compliance with directions from the officers) are beliedby the video recording. The video clearly shows that the first burst of OC spray was discharged the very instant the cell door opened.The second followed immediately thereafter.

I simply cannot accept that CO Talbot (the officer who discharged the OC spray) had thetime to form the belief that Mr. Richards was "“presenting”" himself in a threatening or aggressive manner before he discharged the OCspray or that this use of force was otherwise justified by Mr. Richards’ conduct or demeanor. Notably, CO Talbot never suggests that Mr.Richards was moving in any way – for example, that was rushing towards the officers. It is also patently obvious that, once the door wasopen, there was no time for any officer to give Mr. Richards directions, let alone for Mr.

Richards to have an opportunity to comply,before the OC spray was discharged. [107] Finally, there is the evidence of CO Gosselin. In his testimony in chief, CO Gosselin offered a clear and detailed account of theincident. With complete confidence, he described what had happened before the OC spray was deployed. He explained that he and COTalbot had been working together on the lower level of the unit when they were asked to help with a situation on the upper range. Whenthey got up there, another officer who was already at the cell door explained to them that the inmate (Mr.

Richards) was refusing touncover his cell door window. After numerous attempts to obtain compliance with the direction to remove the window covering, theofficers finally opened the cell door. Mr. Richards was in a "“combative stance.”" CO Talbot gave Mr. Richards multiple orders topresent himself to be handcuffed (according to CO Gosselin, the "“rule of thumb”" is to repeat an order three times before escalating andCO Talbot did at least this) but Mr. Richards refused to comply. Only then was the OC spray deployed. [108] CO Gosselin’s testimony is remarkable for at least two reasons.

One is that the incident occurred nearly eight years earlier yet theofficer’s (roughly) contemporaneous notes (a Statement/Observation Report dated October 4, 2013) include none of the details set out inthe preceding paragraph. [109] The other remarkable thing is that, despite the officer’s obvious confidence in relating his account and his repeated emphasis thatall proper procedures were followed, his testimony is inconsistent with the video in almost every material respect.

Not the least of theseinconsistencies is that the video shows that, contrary to what he testified to so clearly and confidently, the cell door was already open andthe OC spray had already been deployed when he arrived on the scene. Not to put too fine a point on it, I find that CO Gosselin’s accountof what happened before the OC spray was deployed is a complete fiction. [110] Significantly, CO Gosselin acknowledged that he had not watched the video before testifying. I would not go as far as saying thathe deliberately attempted to mislead the Court about what happened.

However, I do find his testimony to be completely unreliable to theextent that it differs from the video (which it does in almost every material respect). [111] All of these considerations leave me with serious doubts about the credibility and reliability of the evidence offered by the Crown’switnesses to justify the use of the OC spray; indeed, I reject that evidence in its entirety. [112] On the other hand, Mr. Richards testified clearly and consistently about the moments immediately before and after the cell dooropened. He was unshaken in cross-examination on these points.

I can find no reason to disbelieve his account of what he was doing whenthe cell door first opened. I accept his evidence that he was not doing anything that warranted the discharge of the OC spray. [113] In assessing Mr. Richards’ credibility, I have taken into account that he has a criminal record: see R v Corbett, (SCC), [1988] 1 SCR 670 at 685. The offences he committed are obviously serious. However, they are all very dated and none areoffences of dishonesty.

I find that his criminal record has no bearing on his credibility in any material respect. [114] I pause at this point to note that in closing submissions counsel for the defendant did not seek to justify this use of force on thebasis that it was necessary to bring Mr. Richards into compliance with directions from the officers. This is understandable given that thisjustification is completely inconsistent with what is clearly depicted in the video recording. Rather, the Crown rested this part of itsdefence entirely on CO Talbot’s evidence that he perceived Mr.

Richards to pose a threat to himself and the other officers when the doorfirst opened. For the reasons set out above, I reject this justification for the use of force. [115] I therefore find, on a balance of probabilities, that the use of force in the form of two discharges of OC spray by CO Talbot wasentirely unjustified. It was an excessive use of force.

(

b) The Efforts to Subdue Mr. Richards [ 116 ] There is no dispute that when the officers entered Mr. Richards’ cell, they used force to subdue and restrain him, including physical " “handling” " , a third burst of OC spray, and handcuffs. There is also no issue that these actions were part of the same transaction that began with the initial discharges of the OC spray at the doorway. [ 117 ] Mr. Richards testified that the officers subjected him to excessive physical force and to verbal abuse as they were subduing him inside his cell.

For example, he alleges that his head was deliberately hit against the wall and that one of the officers deliberately stepped on the side of his face when he was laying on the floor. All the while, according to Mr. Richards, the officers were speaking to him in mocking tones, saying things like " “What up son?” " and " “What up gangster?” " Mr. Richards also alleges that OC spray was sprayed down the front of his shorts, hitting his penis (although he acknowledges that he does not know if this was deliberate or accidental). [ 118 ] All of the officers denied subjecting Mr.

Richards to any form of gratuitous physical or verbal abuse inside the cell. They testified that they used only as much physical force as was necessary to gain control of Mr. Richards. [ 119 ] My concerns with the credibility and reliability of the officers’ evidence set out above carry over to their accounts of what happened in the cell. The absence of a video recording of events in the cell leaves the Court at a significant disadvantage in determining what happened.

However, even if I were to reject the officers’ denials (something I am strongly inclined to do), I would still be unable to resolve the disputed points in Mr. Richards’ favour. This is because there is insufficient reliable evidence to support Mr. Richards’ account of how he was mistreated. And that is primarily because the events Mr. Richards recounts all occurred after he was struck three times with OC spray at close range and while he was being violently set upon by the officers. [ 120 ] OC spray causes intense discomfort. It makes it very difficult to breathe.

It is intended to disorient and debilitate the person at whom it is directed. I have no doubt that the experience of suddenly being hit in the eyes and face by OC spray and then being set upon by four ERT officers was very traumatic for Mr. Richards. I find that he likely struggled with the officers as they attempted to gain control of him, a natural response in the circumstances. The officers were required to use a significant amount of force to subdue him. I accept that Mr.

Richards honestly believes that he was deliberately mistreated by the officers, that they used disproportionate and gratuitous force against him, and that they were verbally abusive as well. I also find, however, that Mr. Richards was not in a position to perceive events accurately at the time they were occurring because of the effects of the OC spray, the generally chaotic and traumatic circumstances that were prevailing at the time, and the anxiety he must have been experiencing.

I find that his ability to recall these events accurately is similarly impaired. [ 121 ] In reaching these conclusions, I have taken into account that Mr. Richards made a timely complaint of mistreatment when he was assessed by a nurse around 1:00 p.m. on the day of the incident. (This assessment is discussed further below.) Among other things, he reported that his head had been " “bashed in.” " The nurse noted no signs of trauma to his head at that time. However, another medical assessment later that day (around 4:30 p.m.) by another health care practitioner noted a large lump on the right side of Mr.

Richards’ forehead. [ 122 ] I have also taken into account that Mr. Richards made a similar complaint of a deliberately inflicted injury to his head (along with other mistreatment) when he was interviewed by Susan Dunne and Carolanne Coon on October 3, 2013. (Ms. Dunne and Ms. Coon were both managers at Springhill at the time. The purpose of the interview was to obtain Mr. Richards’ version of the use of force incident.) [ 123 ] For the sake of completeness, I note that the physical consequences of the use of force on Mr.

Richards are also documented in health care notes on October 1, 2013 (including those relating to an emergency transfer to a local hospital that day to investigate Mr. Richards’ complaints of severe abdominal pain) and on October 13, 2013 (when Mr. Richards reported an ongoing burning sensation on his penis since the use of force incident). [ 124 ] Mr. Richards’ timely complaints of abusive treatment reinforce my view that he honestly believes he was mistreated by the officers in the ways he alleges.

However, they cannot overcome the disadvantageous position in which he found himself when it came to accurately perceiving and recalling what happened during the critical moments of the incident. [ 125 ] That being said, even though I am not satisfied that it was done deliberately, on the basis of his trial testimony and the corroborative medical notes, I do find that Mr. Richards suffered an injury to his head during the use of force incident.

Whether he suffered the injury in his cell or (as discussed below) in the shower is immaterial because, in either case, it clearly occurred in the course of the same transaction that began with the discharge of the OC spray. However, as I have explained, there is insufficient reliable evidence to establish that the officers inflicted this injury deliberately or gratuitously. [ 126 ] Finally in this connection, Mr. Richards recalls that, while he was being subdued in his cell, one or more officers frisk-searched his shorts. Mr.

Richards also believes that it may have been at this point that OC spray was discharged onto his penis (although as I have already noted, he acknowledges that he cannot say whether this was deliberate or accidental). For their part, the officers agreed that it would be proper procedure in the circumstances to have done a pat down search for weapons; however, none of them had a clear, independent recollection of whether this was done or, if it was done at all, where this happened (i.e. in the cell or in the corridor once Mr.

Richards had been removed from his cell). [ 127 ] While the evidence is somewhat equivocal about where and even if this happened, I find that the officers did do a quick pat down search of Mr. Richards’ shorts before he was placed in the shower. Everyone appears to agree that this would have been done and Mr. Richards does recall it occurring at some point. I also find, based on the video recording, that this search probably took place in the corridor after Mr. Richards had been removed from his cell. The pat down search was part of a continuous transaction of physical handling by the officers.

None of that physically handling should have occurred. However, I am unable to find that this particular intrusion on Mr. Richards’ physical and personal integrity was exacerbated by the manner in which the search was conducted. Furthermore, while there is no dispute that OC spray was deployed a third time while Mr. Richards was being physically handled by the officers in his cell, I am unable to find that it was sprayed down his shorts deliberately.

[ 128 ] I accept Mr. Richards’ evidence that his genitals were contaminated with OC spray and that this caused ongoing discomfort for several days. While there is insufficient evidence to find that this was done deliberately – as I have noted, Mr. Richards himself concedes that it may have happened accidentally – it is nevertheless the case that this was a significant adverse consequence of the unwarranted use of force. [ 129 ] In sum, I find that the officers’ physical handling of Mr.

Richards in and immediately outside the cell is a continuation of the unlawful use of force that began with the discharge of the OC spray at the cell doorway. The physical handling was per se excessive because it was entirely unwarranted (it having been precipitated by the unwarranted discharge of the OC spray). Given the manner in which this handling was done, this was a significant interference with Mr. Richards’ physical and personal integrity. As a result of course of events over the entire incident up to this point, Mr.

Richards suffered the significant but temporary discomfort caused by the OC spray and the general trauma (both physical and mental) of being handled violently by the ERT officers in his cell. He also suffered a not insignificant physical injury as a result of the use of force on him on September 30, 2013 – namely, an injury to his head that caused swelling (although not, fortunately, any long term damage). As I have said, I am unable to find, on a balance of probabilities, that the specific forms of intentional and gratuitous physical and verbal abuse Mr. Richards has alleged actually occurred.

In particular, I am unable to find that the injury to his head was inflicted deliberately. Nevertheless, I underscore that this injury (like the contamination of his genitals) would never have occurred but for the unlawful use of force that began with the discharge of the OC spray. [ 130 ] It also bears emphasizing at this point that a video recording of the use of force against Mr. Richards in his cell would have left little if any room for debate about how the officers had conducted themselves.

Nevertheless, the situation escalated quickly and, as I have already stated, I do not fault the officers for not having a camera with them when the use of force incident began. Thus, it would not be appropriate to draw an adverse inference about the credibility of their accounts of what happened in the cell for this reason alone. However, even if I were to draw an adverse inference on this basis, this still would not provide a foundation for finding that the abusive conduct alleged by Mr. Richards actually occurred. [ 131 ] There is an inescapable irony to this outcome given that Mr.

Richards’ compromised state while the officers engaged with him in his cell was the direct result of what I have found to be an unlawful use of force by those same officers – namely, the unjustified use of OC spray and physical handling. Nevertheless, this result must follow given that Mr. Richards bears the burden of proving the aggravating facts on which he relies on a balance of probabilities. For reasons entirely beyond his control, he is unable to discharge this burden with respect to his specific allegations of gratuitous mistreatment by the officers. [ 132 ] Finally, it could be said that Mr.

Richards bears some responsibility for what happened to him given that he had covered his cell door window and repeatedly triggered his cell alarm improperly. While this may be true, it does not mitigate the wrongfulness of the officers’ conduct or the defendant’s liability. Correctional officers – especially those assigned to Emergency Response Teams – must deal appropriately and lawfully with offenders, even when they are misconducting themselves. They must be held to account when they fail to do so. (

c) The Decontamination Shower and Afterwards [ 133 ] There is no issue that, between 12:30:51, when he disappears off camera, and 12:41:58, when he reappears, Mr. Richards was placed in a shower on the upper range. Mr. Richards does not dispute that at least part of the reason the officers put him in the shower was to try to wash the OC spray off of him. He contends, however, that the course of gratuitous physical and verbal abuse that began in his cell continued in the shower. He was essentially helpless in the shower because his arms remained handcuffed behind his back.

He claims that he was first doused with scalding hot water, then with cold water. He claims that the officers " “bounced” " his head off the wall of the shower stall several times. He claims that the officers deliberately forced his head back so that water would run into his mouth and nose and make him feel like he was drowning. He also claims that as he was being taken to the segregation unit after the decontamination shower, officers threatened him with a beating. [ 134 ] Based on the video recording and the officers’ testimony, I find that three officers attended to Mr.

Richards while he was in the shower: first Henderson and Gosselin, then Jobes (who spelled off Gosselin at some point). CO Talbot remained in the area of the shower (although not for the entire time). All the officers deny that Mr. Richards was mistreated in any way while he was in the shower. They testified that their only goal was to rinse off the OC spray and they did this as best they could in the circumstances. They agree that Mr.

Richards remained handcuffed with his arms behind his back during the shower but maintain that this was a necessary safety and security precaution. [ 135 ] I begin by noting that Mr. Richards was critical of the officers’ decision to use the shower on the range to decontaminate him rather than taking him to a secure shower elsewhere in the institution, which would have permitted them to remove the handcuffs. I find, on the contrary, that this was a reasonable step in all the circumstances. Mr. Richards was continuing to experie

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