2022 FC, 2022 FC 1243

Date: 20220831 Docket: T-541-10 Citation: 2022 FC 1243 Ottawa, Ontario, August 31, 2022 PRESENT: Mr. Justice Sébastien Grammond BETWEEN: RÉGENT BOILY Plaintiff and HER MAJESTY THE QUEEN IN RIGHT OF CANADA Defendant Table of Contents I. Overview 4 II. Factual Background 7 A. Mr. Boily’s Arrest in Mexico, his Escape and his Return to Canada 7 B. The Process Leading to Mr. Boily’s Extradition to Mexico 8 C. Mr. Boily’s Extradition and the Alleged Torture 10 D. The Present Action for Damages 16 E. The Committee Against Torture’s Decision 17 III. Did the Alleged Events Occur? 19 A. Basic Principles 20

(1) Standard of Proof 20

(2) Assessing Credibility 22 B. Criminal Record and Propensity to Lie 26 C. The Alleged Contradictions 28

(1) One or Two Trips? 28

(2) Lies and Omissions in his Statements to Mexican Police 29

(3) Cessation of Fear 30 D. Conflicting and Corroborating Evidence 31

(1) Testimony of the Prison Guard 32

(2) Lack of Visible Signs of Torture During Mr. Dubeau’s Visit 34

(3) The Mexican Authorities’ Denial 36 E. Plausibility 38

(1) Frequent Use of Torture in Mexico 38

(2) Mr. Boily’s Degree of Criminal Involvement 40

(3) August 21 Incident 42 F. Psychiatric Evidence Regarding Malingering 42 G.

Summary of Credibility Assessment 45

IV. Damages for Breach of

Section 7 of the Charter 47 A. Breach of

Section 7 48

(1) The Scope of

Section 7 in Relation to Deportation or Extradition 49

(2) New Risk 52

(3) Substantial Risk of Torture 57

(4) Extradition in the Face of a Substantial Risk of Torture Breaches

Section 7 60

(5) Lack of Justification 63

(6) Other Issues 66 B. Functions Performed by the Award of Damages 69

(1) Compensation and Causation 70

(2) Vindication 74

(3) Deterrence 80 C. Countervailing Factors 81

(1) The Existence of Alternative Remedies 81

(2) Good Governance and Qualified Immunity 82 D. The Amount of Damages 87

(1) Principles 88

(2) Evidence of Harm 89

(3) Pre-existing Injury and the Thin-skull Rule 96

(4) The Appropriate Amount 99

(5) Solidarity 103 V. Disposition, Interest and Costs 105 JUDGMENT AND REASONS I. Overview [ 1 ] Torture is a universally condemned practice. It is a radical way of annihilating human dignity. It inflicts acute suffering on its victims and often results in long-term psychological damage. [ 2 ] Torture is prohibited both internationally and domestically. Canada, along with over 170 other countries, has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , Can TS 1987, No 36 [the Convention]. States that have ratified the Convention must criminalize torture.

The Convention also prohibits the extradition or deportation of a person to a country where they would face a substantial risk of torture. Canadian law contains similar rules. Notably,

section 269.1 of the Criminal Code prohibits torture.

Further, as the Supreme Court stated in Suresh v Canada (Minister of Citizenship and Immigration) , 2002 SCC 1 , [2002] 1 SCR 3 [ Suresh ] , and R v Bissonnette , 2022 SCC 23 [ Bissonnette ] , torture is contrary to sections 7 and 12 of the Canadian Charter of Rights and Freedoms [the Charter ]. [ 3 ] In this action for damages, the plaintiff, Régent Boily, claims that the defendant, Her Majesty the Queen [the federal government], extradited him to Mexico despite having received new information indicating that he would face a substantial risk of torture. [ 4 ] The factual background of the case can be summarized as follows.

Mr. Boily was found guilty of drug trafficking in Mexico. He escaped from the Cieneguillas prison in the State of Zacatecas, where he was incarcerated. During the escape, a prison guard was killed. Mr. Boily then returned to Canada. Mexico subsequently requested his extradition, so that he could serve the remainder of his sentence and face charges of escaping from lawful custody and manslaughter. The Minister of Justice agreed to this request, under the condition that Mexico provide diplomatic assurances regarding Mr. Boily’s safety. After Mexico gave such assurances, the Quebec Court of Appeal rejected Mr.

Boily’s application for judicial review of the extradition order. Given the diplomatic assurances, the Court was of the opinion that Mr. Boily would not face a substantial risk of torture. However, on the eve of the extradition, federal officials learned that the Mexican authorities intended to detain Mr. Boily at the Cieneguillas prison, from which he had previously escaped and where the guard who was killed had been working at the time of the escape. Despite being aware of the substantial risk revealed by this new information, the federal government nevertheless handed Mr.

Boily over to the Mexican authorities the next day. Mr. Boily alleges that guards at the Cieneguillas prison tortured him three times in the days following his extradition. The torture techniques used included

submerging Mr. Boily’s head in a barrel of filthy water, suffocating him with a plastic bag, and injecting hot sauce into his nose. [ 5 ] I am allowing Mr. Boily’s action because the federal government breached his right to security of the person under

section 7 of the Charter . The internal memoranda filed in evidence clearly show that federal officials knew that returning Mr. Boily to the prison from which he had escaped exposed him to a serious risk of reprisal. Save in exceptional circumstances, which are not present here, extraditing or deporting a person to a country where they will be exposed to a substantial risk of torture breaches

section 7 . If the federal government had not extradited Mr. Boily after becoming aware of this substantial risk, or if it had taken steps to counter it, Mr. Boily would not have been tortured by the guards at the Cieneguillas prison. Thus, the federal government’s conduct caused the harm Mr. Boily suffered. [ 6 ] I also reject the defences put forward by the federal government. The decision to extradite Mr. Boily despite the new information obtained on the eve of the extradition is not immune from suit.

This information and the resulting risk had not been assessed by the Minister of Justice or by the Quebec Court of Appeal. Hence, Mr. Boily’s action does not amount to a collateral attack against those decisions. Moreover, Mr. Boily’s testimony was credible, and the federal government cannot blame him for the lack of evidence corroborating his allegations of torture. In light of all the evidence, I find that Mr. Boily has proven on a balance of probabilities that he was tortured in the days following his extradition. [ 7 ] I therefore award Mr.

Boily damages in the amount of $500,000, in order to compensate him and ensure the vindication of his rights. [ 8 ] It may come as a surprise that such a large amount of money would be awarded to someone who has been convicted of serious crimes. Can one be both an offender and a victim? No one questions the validity of the convictions against Mr. Boily nor the sentences imposed on him. Mr. Boily breached several fundamental norms of Mexican society. His escape from prison cost an innocent guard his life. Nothing can compensate the loss suffered by the latter’s family. Because of those crimes, Mr.

Boily was incarcerated for nearly fourteen years, eleven of which were spent in Mexican prisons. The legitimate punishment he deserved, however, did not include torture. The prohibition of torture flows from the obligation to respect the human dignity of all persons " “irrespective of their actions” " : Bissonnette , at paragraph 59 . The federal government did not seek the dismissal of Mr. Boily’s claim on the sole basis that he committed serious crimes. Therefore, regardless of his criminal record, Mr. Boily must be compensated for the harm resulting from being exposed to a substantial risk of torture. II.

Factual Background [ 9 ] First, it is necessary to establish the factual setting that gave rise to Mr. Boily’s action for damages. I will outline the main undisputed facts pertaining to his arrest, escape, extradition and early detention in Mexico. I will then describe the alleged acts of torture, the credibility of which will be assessed later. I will also summarize the procedural background of this action and discuss the decision rendered by the United Nations Committee against Torture with respect to Mr. Boily’s case. A. Mr. Boily’s Arrest in Mexico, his Escape and his Return to Canada [ 10 ] Mr.

Boily was born in 1944. Following the accidental death of his wife, he left Canada and settled in Mexico in 1993. He remarried a Mexican citizen. [ 11 ] On March 9, 1998, Mexican police officers near the town of Fresnillo, in the state of Zacatecas, arrested Mr. Boily after they discovered over 500 kg of marijuana in his recreational vehicle. Mr. Boily alleges that the officers threatened to kill him if he did not name his accomplices. When he refused to talk, the officers allegedly tortured him, notably by suffocating him with a plastic bag and injecting chili sauce and carbonated water into his nostrils.

He was allegedly forced to sign a statement written in Spanish, which he could not understand. The officers then threatened to kill him if he revealed the abuse he had suffered. [ 12 ] On November 10, 1998, Mr. Boily was sentenced to 14 years in prison. He was incarcerated at the Cieneguillas prison, in the state of Zacatecas. [ 13 ] On March 9, 1999, Mr. Boily escaped from prison. After claiming he had lost his glasses, he was taken under escort to an eye clinic. On the way back, armed men intercepted the vehicle he was in and seized him. During this event, one of the two guards accompanying Mr.

Boily was shot and killed. Mr. Boily maintains that he never heard the shot and infers that he had already left the scene when the guard was killed. [ 14 ] Over the next few weeks, Mr. Boily travelled to various locations in Mexico. With the help of his in-laws, he covertly crossed the Rio Grande and then took domestic flights within the United States to reach Burlington, Vermont. He then crossed the Canadian border on foot. For the next several years, he lived in the Outaouais region under his true identity. B. The Process Leading to Mr. Boily’s Extradition to Mexico [ 15 ] In 2003, Mexico requested that Mr.

Boily be extradited so that he could serve the remainder of his sentence and face charges of manslaughter and escaping from legal custody. He was arrested on March 1, 2005. On May 27, 2005, the Minister of Justice issued an Authority to Proceed pursuant to

section 15 of the Extradition Act , SC 1999, c. 18 . Mr. Boily was detained pending his extradition. On November 25, 2005, the Superior Court ruled that there was sufficient evidence to justify his extradition. [ 16 ] Under

section 40 of the Extradition Act , it was then up to the Minister of Justice to decide whether to issue an extradition order. In opposing the issuing of such an order, Mr. Boily argued that he would face a substantial risk of torture in Mexico. He invoked three grounds for his fear: (1) he had been tortured at the time of his initial arrest; (2) he was now accused of murdering a prison guard; and (3) reports about the human rights situation in Mexico noted the frequent use of torture. On May 24, 2006, after considering Mr. Boily’s submissions, the Minister of Justice ordered his extradition.

The Minister acknowledged that reports on the human rights situation in Mexico indicated that the Mexican police and armed forces were involved in various human rights violations. However, the Minister was

of the opinion that Canada could meet its obligation not to return Mr. Boily to a country where he would face a substantial risk of torture by obtaining assurances from Mexico that (1) reasonable precautions would be taken to ensure Mr. Boily’s safety; (2) his counsel or Canadian consular services would be able to visit him at all times; (3) he would be able to communicate with them at all times; and (4) his trial would be held within a reasonable time. [ 17 ] On November 16, 2006, Mexico provided the requested assurances. On January 22, 2007, the Minister of Justice wrote to Mr.

Boily’s counsel, informing them that he was satisfied with the assurances received from Mexico. [ 18 ] Mr. Boily sought judicial review of the Minister of Justice’s decision authorizing his extradition. On February 22, 2007, the Quebec Court of Appeal dismissed the application: Boily c Canada (Ministre de la Justice) , 2007 QCCA 250 . The Court found that the Minister’s decision was reasonable in light of all the evidence. It noted that Mr. Boily’s fears arising from the accusation of homicide of a prison guard and reports of frequent torture in Mexico were general in nature.

In the Court’s view, the Minister had taken those fears into account and reasonably considered that they were mitigated by the assurances provided by Mexico. [ 19 ] Mr. Boily applied for leave to appeal the Court of Appeal’s decision. The Supreme Court of Canada dismissed that application on July 5, 2007. [ 20 ] On July 4, 2007, Mr. Boily filed a communication with the United Nations Committee against Torture, requesting urgent measures to stay his extradition. On July 6, 2007, the Committee requested that Canada stay Mr. Boily’s extradition pending a more complete review of the case.

On July 26, 2007, the Canadian government requested that the Committee withdraw its request for a stay of extradition, because Mr. Boily’s concerns were general in nature, not supported by human rights reports in Mexico and had been considered by Canadian courts. On August 13, 2007, the Committee withdrew its request for a stay of his extradition. C. Mr. Boily’s Extradition and the Alleged Torture [ 21 ] Mr. Boily’s extradition to Mexico was set for Friday August 17, 2007. On August 15, two days earlier, officials from the Department of Foreign Affairs learned of Mr.

Boily’s imminent extradition in the newspapers. [ 22 ] Sally Dowe Marchand, a case officer at the Consular Affairs Division in Ottawa, then sought to obtain the text of the diplomatic assurances. Upon reading this document, on August 16, 2007, she concluded that Mr. Boily would be incarcerated at the same prison from which he had escaped and where the guard murdered during his escape had worked. For her part, Isabelle Desjardins, a consular officer at the Canadian Embassy in Mexico, expressed serious concerns that Mr. Boily could face reprisals if he returned to that prison. Ms.

Desjardins and Robin Dubeau, Consul General of Canada in Mexico, immediately took steps with the Mexican authorities to have Mr. Boily transferred to another prison. [ 23 ] However, that same afternoon, officials of the Department of Foreign Affairs in Ottawa held discussions on the matter. They decided not to intervene with the Mexican authorities. Mr. Dubeau and his colleagues at the embassy immediately ceased their efforts. [ 24 ] Mr. Boily was extradited the next day, August 17, 2007.

Upon boarding the plane to Mexico, he was told by the Mexican officers escorting him that he would be held at the Cieneguillas prison (May 2, 2022, transcript, pp 99–100). Upon his arrival at the Mexico City airport, Mexican media were present to film the event (Ms. Desjardins’ report, Exhibit 47). Mr. Boily then met with Ms. Desjardins and expressed his concern about being sent back to the same prison. Given this concern, Ms. Desjardins decided to monitor the situation more closely than she normally would. Mr. Boily then flew to Zacatecas and arrived at the Cieneguillas prison that evening. [ 25 ] Mr.

Boily alleges that he was tortured during the first days of his detention at the Cieneguillas prison. Upon his arrival on August 17, 2007, two guards roughed him up and threatened to kill him to avenge their colleague who had died during his escape in 1999. That evening, these same two guards, accompanied by the prison’s head of security, took Mr. Boily to a deserted area of the prison and tortured him. Mr. Boily was allegedly beaten several times, before having his head submerged about ten times in a barrel of filthy water. He then collapsed face down.

One of the guards sat on his back and repeatedly tried to put a plastic bag over his head. As Mr. Boily struggled, the three guards worked together to put the plastic bag over his head, suffocating him until he became unconscious. When he woke up, they tried to hold his head under a water faucet. They then injected hot sauce into his nostrils. They told him that they wanted to avenge the death of their colleague and threatened to kill him if he reported what had happened. [ 26 ] Another inmate saw Mr. Boily as he was being taken back to his cell and offered to help him. Mr.

Boily asked him to contact his family and his Canadian counsel, Mr. Deslauriers. Indeed, at that time, the prison authorities did not allow Mr. Boily to make telephone calls (transcripts of May 2, 2022, pp 136–37, and May 3, 2022, p 3). [ 27 ] On Sunday, August 19, 2007, Mr. Boily was taken to the prison warden’s office, where he was asked to answer a Mexican television reporter’s questions. That evening, the same three guards tortured him just like they had done on August 17. [ 28 ] On Monday, August 20, 2007, Mr. Boily received a phone call from his daughter, who had been contacted by the fellow prisoner.

He provided her with a

summary of what had happened to him and asked her to contact his counsel and his sister. [ 29 ] That same day, Canadian embassy staff in Mexico took steps to ensure that the assurances provided to Canada, with respect to Mr. Boily, were complied with. A consular officer, Valérie Malingreau, attempted to reach the prison warden. In the middle of the afternoon, she managed to speak to the prison’s legal affairs officer, who was already aware of Mr. Boily’s case and who reassured her that Mr. Boily could make telephone calls (Exhibit 56). For her part, Ms.

Desjardins sent an official letter to the prison warden (Exhibit 57), stating that [translation] " “we are concerned for the safety of the inmate considering the nature of the charges against him.” " [ 30 ] Finally, given the distance between the state of Zacatecas and Mexico City, the embassy contacted the Zacatecas State Human Rights Commission, a non-governmental organization whose mission includes the monitoring of prison conditions and which was able to quickly dispatch a representative to the prison.

Upon learning of the circumstances of the case, a Commission representative decided to go immediately to the Cieneguillas prison to meet with Mr. Boily. However, Mr. Boily did not know if he could trust this person and did

not disclose to him the torture he had suffered. [ 31 ] In the late afternoon, Ms. Desjardins managed to speak to Mr. Boily. He told her that he was not allowed to call the embassy and that he had not had access to the medication he needed because a guard had torn up his prescription. He did not disclose the torture to her at that time. Instead, he told her that he was surrounded by guards and that he did not feel comfortable talking, [translation] " “for fear of making his situation worse” " (see Ms. Desjardins’s note, Exhibit 59; May 3, 2022, transcript, pp 5–6). [ 32 ] On the morning of August 21, 2007, Mr.

Boily’s sister telephoned Ms. Dowe Marchand to tell her that her brother had been [translation] " “mistreated, insulted, scorned” " . In the early afternoon, Mr. Deslauriers sent a letter to Ms. Desjardins indicating that he had learned that Mr. Boily had been tortured during the evening of August 19 and that he did not have access to a telephone. Embassy staff then arranged to visit Mr.

Boily as soon as possible. (Witnesses at the hearing were not very specific about when the decision to hasten the visit was made.) A letter (Exhibit 75) was sent to the prison warden informing him that the visit would take place the following day. [ 33 ] On Tuesday evening, August 21, 2007, the same three guards allegedly tortured Mr. Boily using similar methods to the past two times. [ 34 ] On Wednesday, August 22, 2007, Mr. Dubeau and Ms. Malingreau visited Mr. Boily at the Cieneguillas prison. Mr. Boily disclosed to them the acts of torture he had been subjected to.

However, he requested that they keep the information confidential, as he was concerned for his safety. During the conversation, Mr. Boily expressed his wish to be transferred to another prison, where the guards would not know him. The embassy representatives then spoke with the prison warden. They reminded him of the importance of ensuring Mr. Boily’s safety, particularly because of the animosity that some guards might have towards him. It was agreed upon that Mr. Boily would call the embassy twice a week and that he would receive the medication that his condition required. Mr. Dubeau and Ms.

Malingreau also spoke with the prison doctor, primarily about Mr. Boily’s health and medication. [ 35 ] That same day, the acting head of mission of the Canadian Embassy, Grant Manuge, telephoned the deputy director general for North America of the Mexican Ministry of Foreign Affairs (Exhibit 83; May 9, 2022, transcript, pp 74–76). He told him that Mr. Boily had complained about his mistreatment, but avoided using the word " “torture.” " He reminded him of the diplomatic assurances Mexico gave and emphasized Canada’s consular interest in Mr. Boily’s case.

The following day, on August 23, his interlocutor called him back and informed him that he had requested that the Zacatecas authorities conduct an investigation into the matter and that they respect Mr. Boily’s human rights. A few weeks later, the Mexican authorities sent a diplomatic note containing the prison warden’s response dated August 23 in which he stated that Mr. Boily had always had access to a telephone and denying the allegations of torture. He added that Mr. Boily had been examined by a doctor in the presence of Mr.

Dubeau and that no injuries had been observed (Exhibit 123A). [ 36 ] During the August 22 visit, Mr. Dubeau reassured Mr. Boily that he could speak in confidence to the Human Rights Commission’s representatives (May 3, 2022, transcript, p 118). Mr. Boily told Mr. Dubeau that he wished to be transferred to another prison, where the guards would not know his history. On September 4, 2007, he gave a written statement to the Human Rights Commission in which he claimed that he was tortured at the Cieneguillas prison on August 17, 19 and 21, 2007. By September 4, however, Mr.

Boily was more hesitant about a transfer because of information he had received about the federal prison in Puente Grande, where discipline was stricter. He also stated that the attitude of the prison staff had completely changed after Mr. Dubeau and Ms. Malingreau’s August 22 visit. He said, " “Now I feel calm. I’m not afraid anymore.” " He stated that he did not want to make a complaint. He ultimately decided to abandon the transfer request (May 3, 2022, transcript, pp 21–22, 127–31).

He remained incarcerated at the Cieneguillas prison until 2010. [ 37 ] Before going any further, it may be useful to note that Mr. Boily was convicted of escaping from legal custody and manslaughter in connection with the events of March 1999 and was sentenced to serve 30 years in prison, which was subsequently reduced to 16 years. In June 2017, he was repatriated to Canada under the International Transfer of Offenders Act , SC 2004, c 21 . He has been on parole since December 2017. D. The Present Action for Damages [ 38 ] Mr. Boily commenced this action for damages in 2010.

The federal government responded with a motion to strike, claiming that this action was an abuse of process, as it called into question the Minister of Justice’s decision to extradite Mr. Boily, which had already been upheld by the Quebec Court of Appeal. [ 39 ] Prothonotary Morneau allowed this motion in part: Boily v Canada (Attorney General) , 2010 FC 1228 . He determined that the portions of the statement of claim impugning the decision to extradite Mr. Boily and the decision to accept assurances from Mexico amounted to an abuse of process.

However, he declined to strike the portions of the statement that dealt with the lack of adequate monitoring of the Mexican authorities once the decision to extradite Mr. Boily had been made. According to the Prothonotary, that was a separate cause of action. [ 40 ] The decision of Prothonotary Morneau was not appealed. It is therefore res judicata . It circumscribes the issues in this case. [ 41 ] It took 12 years for the action to be perfected. The parties raised numerous procedural issues that had to be decided by this Court, and on two occasions by the Federal Court of Appeal.

There is no need to enumerate them. [ 42 ] It should also be noted that although the case raises issues of constitutional law and even international law, the parties agree that the applicable suppletive law is Quebec law, presumably pursuant to

article 3126 of the Civil Code of Québec , since Mr. Boily resided in Quebec at the time of his extradition and continues to do so today. In terms of the rules of evidence, the Canada Evidence Act , RSC 1985, c C-5 , must of course be applied, supplemented with Quebec law if necessary. E. The Committee Against Torture’s Decision

[ 43 ] Concurrently with the present action, Mr. Boily pursued his efforts to obtain a decision regarding the complaint he submitted to the United Nations Committee against Torture. On November 14, 2011, the Committee upheld this complaint: UN Doc CAT/C/47/D/327/2007. After setting out the parties’ submissions and finding the complaint admissible, the Committee stated that the issue at hand was " “whether, at the time the extradition took place, [Mr.

Boily] ran a foreseeable, real and personal risk of torture.” " The Committee’s findings are set out in paragraph 14.5 of its decision: In this case, the Committee is of the view that the State party did not take into account, before deciding on extradition, all of the circumstances indicating that the complainant ran a foreseeable, real and personal risk of torture.

First, the State party gave no consideration to the fact that the complainant would be sent to the same prison in which a guard had died during the complainant’s escape years before, and that the guard’s death too was a subject of the extradition request. Second, the agreed system of diplomatic assurances was not carefully enough designed to effectively prevent torture. The diplomatic and consular authorities of the State party were not given due notice of the complainant’s extradition and not informed of the need to stay in close and continuous contact with him from the moment he was handed over.

In this case the diplomatic assurances and the foreseen consular visits failed to anticipate the likelihood that the complainant had the highest risk of being tortured during the initial days of his detention. This risk proved to be true, as the complainant arrived in Mexico on 17 August 2007 and stated that he was subsequently tortured from 17 to 20 August 2007. However, the State party did not take steps to check on his safety until 22 August 2007. The Committee concludes therefore that the extradition of the complainant to Mexico in those circumstances constituted a violation by the State party of

article 3 of the Convention. [ 44 ] Notwithstanding the Committee’s decision, I will undertake an independent review of Mr. Boily’s claim, for two main reasons. [ 45 ] First, this Court is a Canadian court that applies first and foremost Canadian law. In contrast, the Committee makes decisions according to international law. The application of international law by Canadian courts raises complex, sensitive and sometimes controversial issues, as evidenced by the recent cases of Nevsun Resources Ltd v Araya , 2020 SCC 5 , and Quebec (Attorney General) v 9147-0732 Quebec Inc , 2020 SCC 32 .

In some cases, Canadian law may provide a complete solution to a dispute. As will be seen below, that is the case here. In such cases, it is not necessary to address issues of international law. [ 46 ] Second, the evidence before this Court is much more extensive than that which was before the Committee. The Committee reaches its decision based on the record and does not hear witnesses. In contrast, the proceedings before this Court involve the communication of documentary evidence in the possession of the parties and a trial in which witnesses are heard orally and cross-examined.

The cross- examination of witnesses at trial remains a privileged tool in the search for truth, particularly when their credibility is a central issue. This Court’s fact-finding advantage has been summarized by the Supreme Court of Canada as follows: " “[t]he trial judge is better situated to make factual findings owing to his or her extensive exposure to the evidence, the advantage of hearing testimony viva voce, and the judge’s familiarity with the case as a whole” " : Housen v Nikolaisen , 2002 SCC 33 at paragraph 18 , [2002] 2 SCR 235 . III.

Did the Alleged Events Occur? [ 47 ] Before addressing the legal issues raised by Mr. Boily’s action, it is necessary to establish the facts. This is a necessary and delicate exercise, since the federal government argues that Mr. Boily is not a credible witness and that he has not met the burden of proving the facts on which his action is based, namely that he was tortured when he arrived at the Cieneguillas prison in August 2007. [ 48 ] In short, the federal government claims that Mr. Boily’s criminal record seriously affects his credibility. Mr.

Boily’s testimony is allegedly inconsistent and contradicted by other evidence presented at trial. Most importantly, Mr. Boily’s story would be implausible, particularly with respect to his criminal involvement and the circumstances of his return to Canada after his escape. Finally, Mr. Boily’s version of events is not corroborated; on the contrary, it would be contradicted by the denial of the Mexican authorities and by the testimony of one of the prison guards he accused of torturing him. [ 49 ] For the reasons that follow, I find that Mr.

Boily is credible and has proven the facts that he alleges on a balance of probabilities. A. Basic Principles [ 50 ] To analyze these claims, one must begin with a reminder of certain basic principles concerning the standard of proof in civil cases and the assessment of the credibility of witnesses.

(1) Standard of Proof [ 51 ] The search for truth is often presented as the ultimate goal of a trial. However, judges do not have direct access to the truth. They must rely on the evidence presented to them in order to make findings of fact. In a trial, the evidence is often equivocal. Judges seek the truth, but rarely find absolute certainty. A decision must often be made in the face of residual uncertainty as to the facts. [ 52 ] The degree of uncertainty that can be tolerated in determining the facts is reflected in what is known as the standard of proof.

In a criminal trial, the margin of uncertainty is narrow: guilt must be proven beyond a reasonable doubt. The reason for adopting such a high standard of proof is to avoid at all costs convicting an innocent person. In other words, we prefer that the Crown bear the burden of any residual uncertainty with respect to the facts. [ 53 ] On the other hand, in civil matters, a greater degree of uncertainty is tolerated, because society does not seek to protect the defendant at the expense of the plaintiff.

The standard of proof does not favour one party; it does not seek to place the burden of uncertainty on one party over the other: Sidney N Lederman, Alan W Bryant and Michelle K Fuerst, The Law of Evidence in Canada , 6th ed (Markham: LexisNexis, 2022) at paragraph 5.65 [ Sopinka on Evidence ]; FH v McDougall , 2008 SCC 53 at paragraph 42 , [2008] 3 SCR 41 [ McDougall ] .

[54] This standard of proof is the balance of probabilities. It is described in

article 2804 of the Civil Code of Québec: "2804."" Evidence is sufficient if it renders theexistence of a fact more probable than its non-existence, unless the law requires moreconvincing proof. " "2804. La preuve qui rend l’existence d’un faitplus probable que son inexistence estsuffisante, à moins que la loi n’exige unepreuve plus convaincante. " [55] The factual issue that is central to this case is whether Mr. Boily was indeed tortured in the days following his extradition toMexico.

The standard of proof on a balance of probabilities means that I must consider whether it is more likely than not that this claimis true. If it is, I must find that Mr. Boily was tortured, even if there remains some doubt or a possibility that it is not true. [56] Neither the seriousness of Mr. Boily’s allegations, nor the fact that they may otherwise constitute a criminal offence, justify theimposition of a higher standard: McDougall, at paragraphs 40 and 49. [57] The fact that the standard of proof is lower in civil cases than in criminal cases does not mean that fact-finding is a task that can betaken lightly.

When a judge makes a finding of fact despite lingering uncertainty, the judge is simply applying the standard of proof on abalance of probabilities. Of course, this uncertainty makes fact-finding more difficult, but "“[a]s difficult as the task may be, the judgemust make a decision”": McDougall, at paragraph 46.

(2) Assessing Credibility [58] In this case, Mr. Boily’s credibility is a crucial factor in assessing the evidence on a balance of probabilities. Indeed, the evidence ofthe August 2007 acts of torture rests almost entirely on Mr. Boily’s testimony. It follows that Mr. Boily’s credibility is a decisive factor,since the truth of his testimony necessarily results in the rejection of the federal government’s factual arguments; see, by analogy,McDougall, at paragraph 86. [59] Credibility is simply a measure of the reliability of a person’s testimony.

Courts attach great importance to assessing the credibilityof witnesses in order to avoid basing their decisions on evidence that is deceitful or merely erroneous. [60] Assessing credibility is not a scientific or mathematical exercise. Rather, it is a matter of common sense. Like any person who mustconsider whether they believe what another person tells them, judges weigh all of the available information in order to make a judgmentabout the credibility of witnesses.

The rules of evidence circumscribe the type of information that may be considered, in part to preventthe assessment of credibility from overshadowing the substantive issues or from becoming a trial of the witness’ character. [61] The rules of evidence, however, do not dictate the outcome of the exercise or the weight to be given to each relevant piece ofevidence. Nevertheless, case law has developed a number of principles to guide this process. These principles have been developedprimarily in the criminal context.

In many respects, they are related to the presumption of innocence and the respective roles of the judgeand the jury. Regardless, the wisdom they embody is equally useful in civil matters, to help the judge avoid the pitfalls of falsehood andfailing memory. [62] The nature of the federal government’s submissions leads me to consider the role of a witness’s criminal record and of corroboratingevidence in assessing credibility.

In criminal cases, the judge must caution the jury against convicting an accused on the basis oftestimony of doubtful credibility unless it is corroborated: Vetrovec v The Queen, (SCC), [1982] 1 SCR 811 [Vetrovec];R v Khela, 2009 SCC 4, [2009] 1 SCR 104. A witness’s criminal record is a factor that can adversely affect the witness’s credibility andtriggers the application of this rule. The reason is simple: a person who violates the basic social norms embodied by the criminal law isalso likely to disregard the social norm of telling the truth. To this end, under

section 12 of the Canada Evidence Act, RSC 1985, c C-5,witnesses may be asked whether they have ever been convicted of any criminal offence, and proof of the convictions may be adduced ifneed be. [63] However, a criminal record is not a bar to admissibility or a presumption that the testimony is not credible: R v Corbett, (SCC), [1988] 1 SCR 670 at 687. In that case, the Supreme Court suggested a more nuanced approach (at p 685): There can surely be little argument that a prior criminal record is a fact which, to some extent at least, bears upon thecredibility of a witness.

Of course, the mere fact that a witness was previously convicted of an offence does not mean that heor she necessarily should not be believed, . . . [64] Nor does the rule in Vetrovec translate into a strict requirement of corroboration. In criminal cases, an accused may be convicted onthe basis of the testimonial evidence of an unsavoury witness, provided the jury is satisfied that that evidence is true: Khela, at paragraph37. Nor is there a strict requirement of corroboration in civil cases. Of course, corroborative evidence increases the likelihood that analleged fact is true.

Nevertheless, uncorroborated testimony may, depending on the circumstances, establish a fact on a balance ofprobabilities. Indeed,

article 2844 of the Civil Code of Québec specifically states that testimonial evidence may be given by a singlewitness. Similarly, in McDougall, at paragraph 80, the Supreme Court held that, after carefully weighing all the relevant facts, a trialjudge could believe a witness who had reason to lie even in the absence of corroboration. See also Superior Energy Management Gas, lpc 9102-8001 Québec inc, 2013 QCCA 682, at paragraph 7. [65] Another important principle in assessing credibility is the consistency that one would expect from a witness.

A person who hasobserved certain facts should be able to provide a similar description of those facts on different occasions as well as provide an accountthat is internally coherent. In this regard, contradiction can reveal gaps in memory or expose falsehoods. Cross-examination is probablyone of the most incisive tools for detecting inconsistencies in testimony.

A witness may also be contradicted by the witness’s previousstatements or by the testimony of others. [66] Lastly, credibility is assessed on the basis of plausibility, that is, by asking whether the reported facts are consistent with commonsense or common experience. The concept of plausibility was described as the testimony’s "“harmony with the preponderance of the

probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”" in aclassic decision of the British Columbia Court of Appeal: Faryna v Chorny, (BC CA), [1952] 2 DLR 354 at 357. Inassessing the plausibility of testimony, two pitfalls must be avoided. [67] First, improbability should not be confused with implausibility: Al Dya v Canada (Citizenship and Immigration), 2020 FC 901 atparagraphs 35–36 [Al Dya]. A fact is not implausible merely because it has less than a 50% probability of occurring. Improbable thingscan happen.

Therefore, findings of implausibility should be made only in the clearest cases. [68] Second, to determine whether facts occurring in a foreign country are plausible, care must be taken not to give undue weight tocommon experience tied to the Canadian context: Al Dya, at paragraphs 27–28. Indeed, what would be implausible in Canada may occurfrequently in another country. This is particularly important in this case.

It is risky to make findings of implausibility about facts relatingto crime or the prison setting in Mexico in the absence of reliable information on the subject. [69] The particular context of the allegations of torture must be kept in mind when applying the foregoing principles. In the vast majorityof cases, it is the police or prison authorities who practice torture. It should not be surprising that many victims of torture are accused ofa crime or have a criminal record.

Since torture is officially prohibited in much of the world, it is usually carried out in secret and victimswill find it difficult to provide corroborative evidence. Unrealistic evidentiary requirements should therefore be avoided, as they wouldeffectively provide torturers impunity, which would have deleterious effects. [70] With these principles established, I now turn to the various grounds raised by the federal government to challenge Mr. Boily’scredibility. I will first consider the impact of his criminal record.

I will then consider the consistency of his testimony, and assesswhether other evidence contradicts or corroborates it. Finally, I will address the issue of plausibility and the role of expert testimony inassessing credibility. B. Criminal Record and Propensity to Lie [71] In 1998 and 1999, Mr. Boily committed and was convicted of drug trafficking, escaping from legal custody and manslaughter. Theseare undoubtedly serious crimes, for which Mr. Boily has received lengthy sentences. These convictions certainly show that Mr.

Boilywas willing, at that time, to breach society’s basic norms. [72] Not all offences have the same effect on credibility. A conviction for a "“crime of dishonesty”" has a greater impact on a witness’scredibility since it tends to indicate a greater propensity to lie.

Similarly, a recent conviction will carry more weight than an older one,especially if the latter is followed by a long period of compliance with the law: Corbett, at 740–2. [73] In my opinion, the escape from the Cieneguillas prison is a crime entailing a significant element of dishonesty, as it involves acomplex plan to deceive the prison authorities. The escape also demonstrates a profound lack of respect for judicial and correctionalinstitutions. Given the seriousness of the escape, it is not necessary for me to comment on the other crimes of which Mr. Boily has beenconvicted. [74] When cross-examined, Mr.

Boily also admitted that he had attempted to saw through one of the bars on the window of his cell in theHull jail, where he was being held pending extradition. However, no evidence was filed of any criminal conviction or even a disciplinaryoffence in connection with this matter. Without more information, it is difficult for me to assess the seriousness of this attempt. In anyevent, the 1999 escape is a far more serious offence. [75] It is clear that Mr. Boily’s criminal record is an important factor to consider in assessing his credibility.

As the Supreme Court notedin Corbett, however, the passage of time must also be taken into account. Mr. Boily’s only convictions relate to offences that took placein 1998 or 1999, over twenty years ago. The event at the Hull jail took place at least fifteen years ago. All the evidence suggests that Mr.Boily has been a law-abiding citizen since his extradition in 2007 and for the first fifty years of his life. Thus, his involvement incriminal activities is limited to a specific time of his life. [76] Mr.

Boily’s criminal record therefore requires me to take a critical look at his testimony and to carefully weigh all of the elementsaffecting his credibility. However, considering it has been fifteen or twenty years since he committed those offences, it is not an absolutebar to his action or a compelling reason to dismiss his testimony outright. C. The Alleged Contradictions [77] At trial, Mr. Boily’s testimony was consistent. Even taking into account the passage of time, his testimony about his first days in theCieneguillas prison and the torture he was subjected to is specific and detailed.

The description of the techniques that his torturers usedand the sensations that he experienced is credible at first glance. When cross-examined, he maintained his version of the facts and did notcontradict himself. [78] I now turn to some of the inconsistencies raised by the federal government. At the outset, I note that the first two inconsistencies donot relate to the instances of torture in August 2007, but rather to collateral facts.

(1) One or Two Trips? [79] In his testimony in chief at trial, Mr. Boily stated that he had carried a first shipment of drugs in January 1998. The shipment inMarch 1998, when he was arrested, was therefore the second trip he made. Yet, in his 2015 written examination, when asked,[translation] "“was your arrest in connection with marijuana trafficking in 1998 the first time you were involved in drug trafficking?”", heresponded, [translation] "“yes, it was the first time”". [80] When confronted with this contradiction at trial, he simply stated that, in his view, the January and March 1998 trips were a single

occasion or involvement (May 3, 2022, transcript, pp 146–7). This explanation may be puzzling at first. However, Mr. Boily had already disclosed the existence of the January 1998 trip in his testimony before the Superior Court in 2005. Therefore, when responding to the written examination in 2015, Mr. Boily was not seeking to hide an aspect of his past that he had previously managed to conceal. Rather, I believe that he was attempting to describe the events in a more favourable light by playing on words. This may have some negative effect on his credibility.

(2) Lies and Omissions in his Statements to Mexican Police [ 81 ] When Mr. Boily was arrested in 1998, he initially claimed that he was unaware that drugs were hidden in his vehicle. According to the federal government, this lie undermines his credibility. Furthermore, when questioned by the Mexican police, he did not denounce the people he was working for.

In respect of both issues, he explained at trial that his actions were motivated by fear of retaliation against himself or his in-laws (May 2, 2022 transcript, p 76; May 3, 2022, p 74). [ 82 ] While one might wish that criminals make full confessions as soon as they are caught, I believe that Mr. Boily’s fears of retaliation are sufficiently serious that the statements he made to the Mexican police at the time of his arrest or shortly thereafter should not be held against him and should not affect his credibility today.

(3) Cessation of Fear [ 83 ] At trial, Mr. Boily testified about the extreme fear he felt for several weeks after the events. This fear prevented him from sleeping at night, as he was anticipating and visualizing a new torture session, and caused him headaches, dizziness and nausea. He made similar statements to Professor Brunet, the psychologist who examined him and testified at trial. However, on September 4, 2007, he told the Zacatecas State Human Rights Commission that he was no longer afraid. He also ceased his efforts to transfer to another correctional institution.

The federal government sees this as a contradiction and believes that if Mr. Boily had truly been tortured, he would have sought to be separated from his torturers at all costs. [ 84 ] Nevertheless, Mr. Boily offered credible explanations for the change in his position. In written statements to the Commission, he declared that the attitude of the prison staff had changed dramatically after Mr. Dubeau’s visit on August 22.

In addition, he explained that he did not want to be transferred to Puente Grande Federal Prison because he had learned that discipline was stricter there (May 3, 2022, transcript, pp 21–22, 127–31). [ 85 ] In my opinion, there is no real inconsistency between these statements. The statements to the Commission and the abandonment of his request for a transfer are the result of a rational thought process regarding which strategy to adopt to reduce the risk of torture and ill- treatment and to enjoy suitable conditions during his detention. Noting the change in attitude of the prison staff since Mr.

Dubeau’s visit and the implementation of close consular monitoring, Mr. Boily may have, rightly or wrongly, believed that he had everything to lose by being transferred to another institution. As the saying goes, " “if it ain’t broke, don’t fix it.” " His statement that he was no longer afraid should be read in this context. It should also be remembered that Mr. Boily never wished to file a formal complaint with the Commission.

Moreover, it is a myth that victims unfailingly seek to avoid their assailant: R v JC , 2021 ONCA 131 , at paragraph 66 . [ 86 ] In contrast, the statements made to Professor Brunet refer to a situation of hypervigilance and inability to sleep at night. In other words, Mr. Boily is describing his instinctive reactions and not the outcome of a rational thought process (May 3, 2022, transcript, pp 19–20). D. Conflicting and Corroborating Evidence [ 87 ] The federal government insists heavily on the lack of corroborating evidence of Mr. Boily’s alleged torture.

However, the question of corroboration must be approached with a certain amount of common sense taking into account the nature of the events to be proven. Needless to say, torture is universally condemned. Countries that have ratified the Convention , such as Mexico, have the duty to criminalize torture. In these circumstances, it is likely that those who practice torture will avoid leaving evidence of it.

Requiring systematic corroboration of allegations of torture may well render remedies for violations of the Convention ineffective; by way of analogy, see Canada (Citizenship and Immigration) v USA , 2014 FC 416 at paragraph 24 . In McDougall , at paragraph 80 , Justice Rothstein noted that one must be careful not to make corroboration a strict requirement in sexual assault cases, since these " “normally occur in private” " .

The same reasoning applies to torture—corroboration cannot be required if no one else was in the room where it happened. [ 88 ] This being said, I now turn to three aspects of the evidence that, according to the federal government, would contradict Mr. Boily’s testimony.

(1) Testimony of the Prison Guard [ 89 ] At trial, the federal government presented, via videoconference, the testimony of one of the three prison guards who allegedly tortured Mr. Boily. This guard categorically denied having tortured or abused Mr. Boily in any way. [ 90 ] The assessment of this testimony raises delicate questions. [ 91 ] To state the obvious, it is highly unlikely that a prison guard would admit to torture. Such a confession would result in major criminal consequences for the person concerned and possibly for others. This is especially true since Mr.

Boily’s allegations have not been seriously investigated in Mexico. The guard is therefore not under any pressure to confess to the crime. Put simply, if the guard committed a serious crime by torturing Mr. Boily, it is in his interest to lie. [ 92 ] Therefore, the testimony I heard could just as easily be that of an honest man who has nothing to hide or that of a torturer. This testimony is therefore of little use in establishing whether Mr. Boily was tortured. I would add that, in view of the guard’s complete

denial during the examination in chief, Mr. Boily’s counsel did not have to cross-examine him directly on the alleged instances of torture. [ 93 ] Still, it is useful to focus on some of the details of this testimony. The guard acknowledged that he was working at the Cieneguillas prison in August 2007. He remembered that Mr. Boily was there and that he was placed in a

section of the prison called " “ los separos ” " . Although he does not remember if he was at work on the evenings of August 17, 19, and 21, 2007, these facts are consistent with Mr. Boily’s account. He alluded to the fact that he worked 24-hour shifts, followed by a full day of rest (May 11, 2022 transcript, pp 75, 95), which might explain why Mr. Boily was tortured at 48-hour intervals. Furthermore, he acknowledged that he knew the guard who lost his life during Mr. Boily’s escape, even though he was not a close friend. This is consistent with Mr.

Boily’s account that his torturers were motivated by a desire to avenge the dead guard. He also confirmed that one of the guards Mr. Boily identified by first and last name had been the prison’s head of security. Although he testified in chief that guards could not go to the " “ separos ” "

section at night, he acknowledged on cross-examination that it was always possible to access it in the event of an emergency. [ 94 ] There is more. In his testimony in chief, the guard stated that he did not know David, one of the guards who participated in the torture and whom Mr. Boily only knew by first name. On cross-examination, the guard was asked when he had last seen David. He spontaneously answered that he had not seen him for a long time, adding [ translation ] " “if that is the David you are talking about” " .

He added that he did not know David’s last name, only the nickname that everyone at the prison knew him by (May 11, 2022 transcript, pp 76, 90–91). [ 95 ] All this gives the impression that the guard knows more than he is willing to reveal. Moreover, his statements corroborate certain details of Mr. Boily’s testimony, even though the guard denies having tortured him. [ 96 ] Before leaving this topic, I wish to make it clear that these reasons should not be read as a finding with respect to the guard’s potential criminal liability.

Suffice it to say that the standard of proof in criminal matters is fundamentally different from that in civil matters. This judgment concerns the civil liability of the Canadian federal government, not the criminal liability of any individual.

(2) Lack of Visible Signs of Torture During Mr. Dubeau’s Visit [ 97 ] The federal government submits that Mr. Boily should not be believed because he bore no visible marks of torture when he met with Mr. Dubeau on August 22, 2007. [ 98 ] This argument faces an obvious obstacle: it is well known that torture techniques are often designed to leave no visible marks. Torturers are usually aware of the illegality of their conduct and seek to conceal their crime.

The Supreme Court of Canada recognized this grim reality in Badesha , at paragraphs 64 and 65, and in Schreiber v Canada (Attorney General) , 2002 SCC 62 at paragraph 63 , [2002] 3 SCR 269 ; see also Cetinkaya v Canada (Citizenship and Immigration) , 2012 FC 8 at paragraph 53 . [ 99 ] In any event, Mr. Boily did not claim that the torture had left any such marks (May 3, 2022, transcript, p 12). However, he was unaware of the condition of his back, which he was unable to see for himself. He added that he was crying when he told Mr.

Dubeau about his ordeal. [ 100 ] The federal government nonetheless argued that, given the degree of violence to which Mr. Boily testified, it is inconceivable that he would not have had broken bones or, at the very least, bruises. However, it is difficult to measure the physical force used by Mr. Boily’s torturers and to deduce that visible marks would necessarily have been present. Such an exercise involves a large measure of speculation. One can just as easily say that Mr. Boily’s torturers necessarily took the desired precautions so as not to inflict visible physical injuries. [ 101 ] In any event, Mr.

Dubeau’s testimony in this regard is not very reliable. As noted previously, Mr. Dubeau provided three accounts of his meeting with Mr. Boily: in a report he wrote on the same day, during his examination for discovery in 2012 and at trial. These three versions of his story are not always compatible. On cross-examination, Mr. Dubeau had to admit that some of his answers were inaccurate (with respect to the clothes Mr. Boily was wearing, for example), that he had failed to write down some of Mr.

Boily’s statements (the first name of one of the torturers and the fact that a fellow inmate had witnessed him returning to his cell), and that his memory sometimes played tricks on him (May 10, 2022, transcript, pp 141–7, 183–5). At trial, he testified that he had a conversation with the Mexican Ministry of Foreign Affairs on August 16, 2007, although he was not entirely sure who he had spoken to, despite the fact that he denied having had such a conversation in the 2012 examination for discovery (May 10, 2022, transcript, pp 35–36, 117–21, 123–5). [ 102 ] In fact, at trial, Mr. Dubeau attempted to portray Mr.

Boily’s condition as normal, since he was walking normally and did not reveal any aches or signs of psychological distress. These statements, however, must be considered with some skepticism, since these facts are not mentioned in the report written on the day of that meeting (Exhibit 84). Instead, the report says that Mr. Boily was emotional when he recounted the instances of torture, and relieved at the end of the meeting. The federal government chose not to call Ms. Malingreau to the witness stand, even though she was present at the meeting.

For these reasons, I believe that the account written on the day of the meeting is a more accurate description of what took place. On the whole, this account corroborates Mr. Boily’s allegations more than it contradicts them. [ 103 ] In any event, Mr. Dubeau did not take certain basic steps that could have shed additional light on Mr. Boily’s allegations. He did not ask Mr. Boily to remove his shirt. He did not ask the prison doctor to examine him; in fact, the meeting with the doctor focused on Mr. Boily’s blood pressure problems. He did not actively seek details from Mr.

Boily that would advance any potential investigation. When Mr. Boily volunteered certain details, Mr. Dubeau did not take note of them. The failure to take such steps reduces the probative value of Mr. Dubeau’s testimony. Moreover, the federal government can hardly blame Mr. Boily for the lack of corroborative evidence that could have been obtained if Mr. Dubeau had performed such basic inquiries.

(3) The Mexican Authorities’ Denial

[ 104 ] The federal government also relies on a diplomatic note sent by Mexico on September 10, 2007, which reproduces a report sent by the warden of the Cieneguillas prison on August 23, 2007, the day after Mr. Dubeau’s visit. The warden denied that Mr. Boily was tortured, essentially, because he was examined by the prison doctor in the presence of Canadian embassy personnel and no injuries were observed. [ 105 ] Although Mr. Boily did not object to the admission of this document into evidence, it contains several layers of hearsay.

Neither the author of the diplomatic note, nor the warden nor the doctor testified at trial or were cross-examined. It also was not explained to me why this would not have been possible. [ 106 ] In any event, no value can be placed on this denial. As I have noted above, the absence of physical injury is not determinative. Moreover, the warden’s statements are contradicted by Mr. Dubeau’s report and testimony. Contrary to the warden’s statement, Mr. Dubeau was not present when the prison doctor examined Mr. Boily. This examination took place during the initial interview between Mr. Dubeau and the warden.

There is no indication that the doctor was aware of the allegations of torture or that his examination was intended to detect signs of torture. The subsequent meeting between Mr. Dubeau, Mr. Boily, the doctor and the warden focused on Mr. Boily’s blood pressure and the medication that had been prescribed for it (see Mr. Dubeau’s report, Exhibit 84; Mr. Boily’s May 3, 2022, testimony, pp 15–16; Mr. Dubeau’s May 10, 2022, testimony, pp 102–4). [ 107 ] The warden’s denial is not based on anything other than the doctor’s findings.

Yet in the presence of an allegation of torture, one would have expected the warden to carry out more thorough inquiries, in particular by questioning the guards present at the time of the alleged events. This is especially true as the matter was attracting the scrutiny of foreign officials. The warden’s brief response is clearly not that of someone seeking the truth. [ 108 ] The evidence presented at trial contradict other statements made by the warden. In particular, it is established that Mr. Boily did not have access to a telephone for the first three or four days of his detention.

Yet the warden denies that there were any restrictions on Mr. Boily’s access to a telephone. It is therefore difficult to give credence to the warden’s denials. [ 109 ] The federal government’s witnesses all agreed that the September 10, 2007, diplomatic note was not the result of an adequate investigation (May 6, 2022, transcript, pp 125–6; May 9, 2022, pp 150–2; May 10, 2022, pp 232–4). It is difficult to see how the federal government could use it to undermine Mr. Boily’s credibility. E. Plausibility [ 110 ] I will now examine Mr. Boily’s account in terms of plausibility.

I will begin by demonstrating the plausibility of Mr. Boily’s allegations of torture and then look at some specific aspects of his account.

(1) Frequent Use of Torture in Mexico [ 111 ] In its closing submissions, the federal government acknowledged the plausibility of the basic elements of Mr. Boily’s story, namely, that he was tortured by guards who wanted to avenge the death of one of their colleagues. Despite this concession, it may be useful to clarify what makes these facts plausible. [ 112 ] The endemic nature of torture in Mexico has been extensively documented in reports by non-governmental organizations and United Nations treaty monitoring bodies.

In matters of immigration and extradition, such reports are frequently used to assess the risks a person would face upon removal: see, for example, Badesha , at paragraph 44; Koffi v Canada (Immigration, Refugees and Citizenship) , 2019 FC 970 at paragraph 58 . At trial, Mr. Robertson, who was director of the consular case management division at the time, acknowledged that such reports were frequently used by the Department of Foreign Affairs (May 6, 2022, transcript, pp 78–79).

In the context of a civil trial, such reports are not evidence of the facts in dispute (or " “adjudicative facts”) " , but they can be used to distinguish what is plausible from what is not in a given country. [ 113 ] For example, the United States State Department report on the human rights situation in Mexico in 2005 (Exhibit 215) states that torture remains a serious problem, that confessions obtained under torture are often admitted into evidence despite this being prohibited by law, and that torturers are rarely punished.

In 2014, Amnesty International published a report (Exhibit 223) synthesizing the findings regarding torture in Mexico from previous years. The report noted the very frequent use of torture by law enforcement officials and the impunity these officials enjoy. In 2019, the World Justice Project published a report entitled Failed Justice: Prevalence of Torture in Mexico’s Criminal Justice System (Exhibit 227), based on data collected between 2006 and 2016. The report notes that torture is mainly used to extract confessions, but that it is also practiced in prisons (pages 34 and 35 of the report).

Finally, in 2004, in its fourth periodic report submitted to the Committee against Torture, the Mexican government itself acknowledged that " “torture continues to be practised in Mexico despite all the international instruments signed by Mexico and the legislative and administrative measures taken to eradicate it” " (UN Doc CAT/C/55/Add.12; Exhibit 231, paragraph 299). These reports are not evidence of the facts at issue in this case, but they do demonstrate that Mr.

Boily’s account is consistent with " “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions” " , to use the words of the British Columbia Court of Appeal in the previously cited decision.

(2) Mr. Boily’s Degree of Criminal Involvement [ 114 ] In reality, the allegations of implausibility made by the federal government do not relate so much to Mr. Boily’s alleged torture, but rather to his description of the criminal activities he was involved in and the circumstances of his escape. [ 115 ] Briefly put, the federal government claims that it is implausible that for his first or second criminal outing, Mr. Boily was entrusted with a shipment with a retail value of several million dollars. It also submits that it is implausible that Mr. Boily was able to make it to Canada after his escape without the assistance of the criminal organizations for whom he had carried drugs.

[116] Even assuming that the value of the shipment was significant, it is quite possible that the prospect of retaliation against his in-lawswas a powerful incentive for Mr. Boily to deliver the shipment to the agreed upon destination. It is therefore not implausible that acriminal organization entrusted him with a very valuable shipment. Moreover, if Mr. Boily had been involved in organized crime at ahigh level, we could assume that he would not have carried the shipment himself. [117] As to the circumstances of his escape and return to Canada, I agree that Mr.

Boily’s testimony was vague in some respects.Nevertheless, I understand that he did not want to name the persons who helped him, possibly because this would expose them tocriminal prosecution in Mexico. On cross-examination, he denied receiving any assistance from organized crime, and there was noevidence to the contrary. One might also be surprised that, while wanted by the Mexican authorities for serious offences, Mr. Boily wasable to board a plane in the United States using a driver’s license showing his true identity. However, it was only in 2003 that Mexicanauthorities asked Canadian police to search for Mr.

Boily, spelling his last name incorrectly. This mistake caused considerable delay(transcript of the 2005 Superior Court Hearing, Exhibit 1, pp 53, 83, 86–8). It is therefore possible that American authorities were notsent a wanted notice in 1999 or that Mr. Boily’s name was spelled incorrectly, which would have allowed him to fly undetected. [118] All in all, I do not find this to be one of the those clearest of cases that would justify a finding of implausibility and the rejection ofMr. Boily’s evidence in its entirety.

Moreover, the alleged implausibilities do not relate to the facts grounding the cause of action, butrather relate to collateral facts.

(3) August 21 Incident [119] One final aspect of Mr. Boily’s account may also give rise to questions. On August 21, 2007, Ms. Desjardins faxed a letter to theprison warden announcing Mr. Dubeau’s visit the following day. The federal government argues that it is implausible that Mr. Boily wastortured on the evening of August 21, when the Canadian consular staff visit was imminent. [120] Although it is legitimate to ask this question, answering it is a matter of speculation. The evidence does not reveal when the August21 letter was transmitted, nor when the prison warden became aware of it.

It is also unclear whether, at that precise moment, the wardenwas aware of Mr. Boily’s allegations or the identity of the guards who allegedly tortured him. It is therefore possible that the prisonwarden simply did not have the opportunity to act to prevent a new episode of torture.

In any event, this Court’s jurisprudence remindsus that it is risky to speculate regarding what a "“reasonable agent of persecution”" would do: Senadheerage v Canada (Citizenship andImmigration), 2020 FC 968 at paragraph 19, [2020] 4 FCR 617; Hernandez Cortez v Canada (Citizenship and Immigration), 2021 FC1392 at paragraph 36; Aboutaleb v Canada (Citizenship and Immigration), 2022 FC 810 at paragraph 17. This is not, therefore, one ofthose clearest of cases in which it would be appropriate to draw a finding of implausibility. F.

Psychiatric Evidence Regarding Malingering [121] The federal government called psychiatrist Gilles Chamberland to testify, mainly with respect to the degree of the functionalimpairment Mr. Boily had allegedly suffered. Dr. Chamberland also testified that Mr. Boily met many of the criteria for malingering. Iwill disregard Dr.

Chamberland’s opinion for the following reasons. [122] It is well established that expert evidence intended solely to enhance or undermine the credibility of testimony is inadmissible: R vBéland, (SCC), [1987] 2 SCR 398 at 415–416 [Béland]; R v Marquard, (SCC), [1993] 4 SCR 223 at247–249 [Marquard]; Sopinka on Evidence, at paragraph 12.160; Catherine Piché, La preuve civile, 6th ed, Montréal, Yvon Blais, 2020at 385–386. This is because expert evidence can only relate to facts or opinions that are beyond the experience or knowledge of the trierof fact.

Indeed, "“[i]t is a basic tenet of our legal system that judges and juries are capable of assessing credibility and reliability ofevidence”": Béland, at 416. Expert evidence regarding credibility is only admissible where it concerns conduct or impediments totestifying that the trier of fact cannot appreciate: Marquard, at 249. [123] To support his statement that malingering was likely, Dr. Chamberland relied on the American Psychiatric Association, Diagnosticand Statistical Manual of Mental Disorders, Fifth Edition.

Arlington, VA, American Psychiatric Association [the DSM-5], at 727: Malingering should be strongly suspected if any combination of the following is noted: 1. Medicolegal context of presentation (e.g., the individual is referred by an attorney to the clinician for examination, or theindividual self-refers while litigation or criminal charges are pending). 2. Marked discrepancy between the individual’s claimed stress or disability and the objective findings and observations. 3. Lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen. 4.

The presence of antisocial personality disorder. [124] In the context of a trial, the first criterion is obviously tautological in nature and adds nothing to the analysis. To a large extent, theother three criteria overlap with the factors that courts use to assess credibility. A psychologist’s or psychiatrist’s opinion based on thesecriteria is nothing more than an attempt to disguise as an expert opinion what is ultimately a judgment based on common sense that is theexclusive purview of the judge.

Testimony based on such criteria is inadmissible, since it is contrary to the principles flowing fromBéland and Marquard. [125] In any event, as I explain later in these reasons, Dr. Chamberland is not a credible witness. Moreover, regarding the criteria formalingering, there is no discrepancy between what Mr. Boily reports and the results of the tests administered by Dr. Chamberland, sinceMr. Boily does not claim to have a functional impairment and Dr. Chamberland does not assess suffering. In his testimony, Dr.Chamberland acknowledged that Mr. Boily cooperated in the interview (May 13, 2022, transcript, p 57).

Furthermore, Mr. Boily gaveperfectly valid reasons for preferring psychotherapy to medication. Lastly, Dr. Chamberland admitted that he was not in a position todiagnose Mr. Boily with an antisocial personality disorder (May 13, 2022, transcript, pp 72–73).

[ 126 ] For the same reasons, I also cannot consider the testimony of Professor Brunet when assessing credibility. He testified about the validity scales contained in the psychological tests he administered to Mr. Boily as well as his own clinical ability to assess the truthfulness of his patients’ accounts. For the reasons outlined above, this evidence is inadmissible for the purposes of assessing a witness’s credibility. G.

Summary of Credibility Assessment [ 127 ] To summarize, in 1998 and 1999, Mr. Boily committed serious crimes. The escape from Cieneguillas prison involved a certain degree of deception that may indicate a propensity to lie. These facts call for a critical look at Mr. Boily’s credibility. [ 128 ] Nonetheless, Mr. Boily’s testimony was consistent and free of significant contradictions with his earlier statements. [ 129 ] In truth, the federal government’s challenge to Mr. Boily’s credibility is essentially based on the idea that Mr. Boily is far more involved in organized crime than he is willing to admit.

It seeks to portray Mr. Boily as a hardened criminal who would not hesitate to fabricate a story for financial gain. While such a scenario is not impossible, it has its own problems. In particular, by making false allegations of torture, Mr. Boily could very well have exposed himself to retaliation, possibly including torture. Moreover, nothing in the evidence supports such a scenario. On cross-examination, Mr. Boily maintained his testimony that the crimes committed in 1998 and 1999 constitute a circumscribed period of his life.

Some aspects of his account of his criminal activity and his escape from prison may raise doubts or appear surprising, but they do not make his entire testimony implausible. [ 130 ] In this regard, it is understandable that a claim for compensation from a man who has committed serious crimes attracts skepticism. There is no denying that Mr. Boily’s criminal record gives rise to legitimate moral indignation. However, the punishment that he deserved for those crimes did not include torture.

The question of whether he was tortured is entirely independent of the crimes he committed or the links he may have had with criminal organizations. His criminal record is relevant only to assess his credibility. It should not be given undue weight because of an instinctive desire to further punish a person who has committed serious crimes. [ 131 ] We are thus left with the testimony of the prison guard. As I explained earlier, it is difficult to give significant weight to such a denial, since in the circumstances of this case, a person who committed torture would have no reason to confess.

Moreover, some aspects of the guard’s testimony corroborate Mr. Boily’s testimony. [ 132 ] In sum, while there may be some residual concerns, I find that Mr. Boily is, on the whole, credible and has proven, on a balance of probabilities, that he was tortured at the Cieneguillas prison on August 17, 19 and 21, 2007. [ 133 ] Although this is not seriously disputed, I would point out that the treatment suffered by Mr. Boily constitutes torture within the meaning of

Article 1 of the Convention. Indeed, " “public officials” " intentionally inflicted " “severe pain or suffering, whether physical or mental” " on Mr. Boily in order to punish him for the death of the guard killed during the 1999 prison escape and to force him to confess to voluntary homicide. IV. Damages for Breach of

Section 7 of the Charter [ 134 ] Having established that Mr. Boily was tortured in the days following his extradition to Mexico, it is now necessary to determine whether these facts give rise to a claim for damages against the federal government. To do so, I will apply the analytical framework established by the Supreme Court in Vancouver (City) v Ward , 2010 SCC 27 , [2010] 2 SCR 28 [ Ward ] . Indeed, the misconduct alleged by Mr. Boily is a breach of

section 7 of the Charter . Although Mr. Boily alternatively based his action on extra-contractual liability and the Crown Liability and Proceedings Act , RSC 1985, c C-50 , I prefer to rely on the Ward framework, because the same substantive issues would have to be addressed, namely the breach of

section 7 , causation, the factors that might give rise to immunity, and the assessment of the quantum of damages. As in Francis v Ontario , 2021 ONCA 197 at paragraph 29 [ Francis ] , it is preferable to approach the case from the perspective of the Charter rather than from the perspective of extra-contractual liability. [ 135 ] In Ward , at paragraph 4 , the Supreme Court summarized its proposed analytical framework as follows: The first step in the inquiry is to establish that a Charter right has been breached.

The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches. At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. The final step is to assess the quantum of the damages. [ 136 ] The following analysis will therefore be divided according to the four steps of this framework. A.

Breach of

Section 7 [ 137 ] I find that the federal government breached

section 7 of the Charter by extraditing Mr. Boily in spite of the fact officials had just learned that he would face a substantial risk of torture. Neither the Minister of Justice nor the Quebec Court of Appeal had assessed this risk, since no one had considered that, contrary to the most basic common sense, Mr. Boily would be incarcerated at the same prison from which he had escaped and where the guard who was killed during his escape had been working. In the face of this new risk, the decision of the Minister of Justice and the decision of the Court of Appeal were no longer sufficient guarantees of Mr. Boily’s

section 7 rights. [ 138 ] To demonstrate this, it is first necessary to explain how

section 7 applies in the context of extradition or deportation to a foreign country. I will then apply these principles to the circumstances that flowed from the realization, on August 16, 2007, of the risk arising from the intention of the Mexican authorities to incarcerate Mr. Boily at the Cieneguillas prison. It will become apparent that this risk

had not been taken into consideration in previous decisions, and it constituted a substantial risk of torture. The federal government did nothing to mitigate this risk, thereby rendering Mr. Boily’s extradition contrary to

section 7 . The federal government failed to put forward any exceptional circumstances that would have justified Mr. Boily’s extradition in spite of the substantial risk of torture.

(1) The Scope of

Section 7 in Relation to Deportation or Extradition [ 139 ]

Section 7 of the Charter reads as follows: " 7. " " Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. " " 7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu’en conformité avec les principes de justice fondamentale. " [ 140 ] The impact of

section 7 on the extradition or removal process has been discussed by the Supreme Court of Canada in a number of decisions, including United States v Burns , 2001 SCC 7 , [2001] 1 SCR 283 [ Burns ] ; Suresh ; and India v Badesha , 2017 SCC 44 , [2017] 2 SCR 127 [ Badesha ] . [ 141 ] Burns dealt with the extradition to the United States of persons accused of murder. The Minister had authorized their extradition without requiring assurances that the death penalty would not be administered. In that case, the Supreme Court established the first principle that is useful in analyzing Mr. Boily’s situation: when deciding whether a person’s extradition is consistent with

section 7 , one must consider the consequences that person could potentially face in the country they are being extradited to. Therefore, even though the death penalty would not be administered by Canada, the risk that Mr. Burns would be executed if extradited meant that his ex

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