Date: 20031215
Docket: T-1300-97
Citation: 2003 FC 1463
BETWEEN:
RONALD L. BASTARACHE,
Plaintiff,
- and -
HER MAJESTY THE QUEEN,
Defendant.
[1] Ronald Bastarache's memories of his life before 1995 are sketchy. On June 25th of that year, while incarcerated at Springhill Institution, a federal penitentiary, he was assaulted by a fellow inmate. He sustained a compound depressed left temporal skull fracture with left intratemporal hematoma.
[2] Mr. Bastarache initiated an action alleging that the defendant's negligence was the sole cause of his injury and ongoing medical problems, the particulars of which are delineated in paragraph 14 of his statement of claim. The specific allegations, as pleaded, are that the defendant failed in its duty of care to the plaintiff, in:
(a) failing to provide an environment that was free from violence, and
(b) failing to detect in a timely fashion that the plaintiff was injured and required
immediate medical attention.
[3] At the outset of trial, Mr. Bastarache's counsel withdrew the first allegation regarding negligence and advised that the "institution" did not know and could not have known that the plaintiff would be injured. The second allegation, noted above as (b) is "still in issue". Counsel for the defendant conceded the existence of a duty of care, but denied any breach of the duty.
[4] Before proceeding with the factual background, additional information requires mention. This action was case managed and a bifurcation order severing the issues of liability and damages was issued, as of January 17, 2002, by the case management judge. Following a trial management conference, counsel, in consultation with one another, submitted the following statement summarizing the main issue to be determined at trial:
Was the staff at Springhill Institution negligent in not having discovered that Mr. Bastarache had suffered an injury on June 24th, 1995?
[5] Both parties tendered pre-trial briefs at the outset of trial. The plaintiff, Mr. Bastarache, gave evidence and called one witness, Mr. Claude Blanchard.
[6] After the plaintiff closed his case, I noted that no evidence had been called in relation to the issue of causation. I also noted that the defendant's pre-trial brief was silent in this respect. Both parties appeared to be focussed exclusively on the "breach of duty of care" issue. Wary that counsel may have misinterpreted the bifurcation order, I raised the issue with them in the terms described below.
[7] A finding of liability necessitates a determination that there exists: (a) a duty of care (conceded by the defendant in this matter); (b) breach of the duty; and, (c) a link (causation) between the acts or omissions of the defendant and the result. As I suspected might be the case, counsel were operating on the assumption that the "causation" element would be canvassed during the second phase of the proceeding, provided that the plaintiff was successful in establishing breach of the duty of care.
[8] Following some discussion, the parameters for this segment of the trial were established. The issue for determination is narrow - whether the plaintiff has established a breach of the duty of care owed to him by the defendant. Counsel (for both parties) readily acknowledged that it is not open to me to determine liability in the absence of any evidence with respect to the issue of causation. Counsel additionally acknowledged that, should the plaintiff not be successful in establishing breach of the duty of care, the failure is fatal to his claim because all three elements must be satisfied to succeed in negligence. On the other hand, should I determine the breach to be established, evidence regarding causation then becomes essential in order to determine whether an action in negligence is made out.
[9] Thus, the narrow issue to be determined in this matter is whether there is sufficient evidence to establish, on a balance of probabilities, that there exists a breach of the duty of care owed to the plaintiff by the defendant. If that is so, a determination with respect to liability will be made at a later date, during the second phase of the trial, when medical evidence regarding causation and with respect to the issue of damages will be forthcoming. It is on that basis that I proceed.
[10] Mr. Ronald Bastarache (Bastarache), born on November 27, 1968, is 35 years of age. He was first sentenced to incarceration in a federal institution when he was 19 years old and he has served approximately 15 years in custody. As earlier stated, he testified at trial, as did Mr. Claude Blanchard, on Bastarache's behalf. The defendant called Mr. David Raymond Coon, a corrections supervisor with 31 years experience in corrections, and Mr. Allan Angus Hunter, a corrections officer at Springhill Institution. There are two significant points where the evidence conflicts and those areas will be referred to in some detail later in these reasons. Other than those discrepancies, there is no real dispute as to the facts.
[11] Bastarache does not remember the incident and knows only what he has been told. Mr. Blanchard's evidence, for the most part, is consistent with the investigative report. On June 24, 1995, Bastarache and his friend and fellow inmate, Claude Blanchard (Blanchard), were high. They had smoked hash and each had consumed between seven and ten valium. At supper, Blanchard arranged a "trade" with another inmate, Bertrand Veilleux (Veilleux). Blanchard provided Veilleux with hash and was to receive valium in exchange. Around 9:00 p.m., Bastarache went to Veilleux's cell to collect the valium only to be told, by Veilleux, that he didn't have it. Bastarache left and returned with Blanchard. When Blanchard insisted that Veilleux provide the valium, Veilleux said that he had been joking and that the valium was behind his television. Pretending to reach for the drugs, Veilleux withdrew a steel bar with blunt ends resembling a towel rack. He struck both Blanchard and Bastarache with the bar. Blanchard was hit on his right hand and Bastarache on the left side of the head.
[12] Bastarache and Blanchard left Veilleux's cell and returned to Bastarache's cell. The blow had shaken Bastarache, who was "wobbly", and Blanchard assisted him on the return. Blanchard indicated that he wanted some dilaudid for the pain in his hand. Bastarache said he also wanted some. Blanchard went to get the dilaudid and left Bastarache standing near the door of his cell. When Blanchard returned, he and Bastarache injected the dilaudid.
[13] Blanchard then decided to seek medical attention for his right ring-finger wound. He suggested that Bastarache come with him to see about his head, but Bastarache said he would be fine. Blanchard cannot recall whether Bastarache was standing or sitting when he left Bastarache's cell. It was 10:00 p.m. when Blanchard went to main control to report his injury. He stated that he had cut his finger when he "fell next to the fence that surrounds the baseball diamond". Corrections Officer W. Croft accompanied Blanchard to the health care unit. Because Blanchard required stitches, at 10:30 p.m. he was transported to All Saints Hospital in the town of Springhill. He was returned to the institution at 12:01 a.m. It is not known which officer escorted Blanchard to the hospital.
[14] Upon waking shortly before 10:00 a.m. the next morning, Blanchard went to check on Bastarache, specifically to determine whether he was in his cell, or in the health care unit. The injured Bastarache was in bed and Blanchard was not able to wake him. Blanchard immediately reported Bastarache's condition.
[15] Corrections Officer Allan Angus Hunter (Hunter) and another corrections officer went to Bastarache's cell. First, they looked in the cell to see if anything appeared out of place and then Hunter tapped on the door. Upon receiving no response, Hunter "hollered" Bastarache's name. When there was no response, Hunter entered the cell and kicked the bedframe with his boot. Still, no response. Hunter then moved to the head of the bed. He noticed blood on the pillow under Bastarache's head (Blanchard testified that there was blood everywhere - all over the cell and all over the linens). Hunter turned Bastarache over and observed hair matted with blood and a cut on Bastarache's head. Hunter called for a stretcher and Bastarache was promptly removed from the cell on a stretcher. Hunter secured the cell by locking and capping it and then reported to the supervisor. At that point, Hunter was not aware that Bastarache was the victim of an assault. Hunter completed an observation report immediately thereafter.
[16] Bastarache was taken first to the institution's health care centre, and from there to All Saints Hospital for assessment. The skull injury was diagnosed and Bastarache was transferred to the Region 1 Hospital Corporation in New Brunswick (the Moncton Hospital) where he underwent neurosurgery. He was discharged to Dorchester penitentiary ten days later.
[17] Bastarache alleges that the defendant breached the duty of care owed to him by failing to detect, in a timely fashion, that he was injured and required immediate medical attention.
[18] The Crown's liability in tort exists as a result of section 3 of the Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, as amended. That provision states:
| 3. The Crown is liable for the damages for which, if it were a person, it would be liable (a) in the Province of Quebec, in respect of (i) the damage caused by the fault of a servant of the Crown, or (ii) the damage resulting from the act of a thing in the custody of or owned by the Crown or by the fault of the Crown as custodian or owner; and (b) in any other province, in respect of (i) a tort committed by a servant of the Crown, or (ii) a breach of duty attaching to the ownership, occupation, possession or control of property. |
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3. En matière de responsabilité, l'État est assimilé à une personne pour_: a) dans la province de Québec_: (i) le dommage causé par la faute de ses préposés, (ii) le dommage causé par le fait des biens qu'il a sous sa garde ou dont il est propriétaire ou par sa faute à l'un ou l'autre de ces titres; b) dans les autres provinces_: (i) les délits civils commis par ses préposés, (ii) les manquements aux obligations liées à la propriété, à l'occupation, à la possession ou à la garde de biens. |
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[19] The liability is vicarious. In the present context, it must be established that an officer of the penitentiary, acting in the course of his employment, did [or failed to do] that which a reasonable person in the position would not have done [or would have done] thereby creating a foreseeable risk of harm to the inmate resulting in liability: Timm v. Canada, [1965] Ex. C.R. 174; Coumont v. Canada (Correctional Services) (1994) 77 F.T.R. 253 (T.D.); Iwanicki v. Ontario (Minister of Correctional Services) (2000), O.T.C. 181 (Sup.Ct.Jus.).
[20] The operation of the federal corrections system is governed by the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the CCRA) and the Corrections and Conditional Release Act Regulations, SOR/92-620 (the Regulations) passed pursuant thereto.
[21] The purpose of the federal corrections system is set out in section 3 of the CCRA as follows:
| 3. The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by (a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and (b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community. |
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3. Le système correctionnel vise à contribuer au maintien d'une société juste, vivant en paix et en sécurité, d'une part, en assurant l'exécution des peines par des mesures de garde et de surveillance sécuritaires et humaines, et d'autre part, en aidant au moyen de programmes appropriés dans les pénitenciers ou dans la collectivité, à la réadaptation des délinquants et à leur réinsertion sociale à titre de citoyens respectueux des lois |
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[22] Relevant to this matter, the legislated principles guiding Correctional Service of Canada (CSC) in the achievement of the above stated purpose are found in subsections 4(d) and 4(e) of the CCRA. Those subsections read:
| 4. The principles that shall guide the Service in achieving the purpose referred to in section 3 are |
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| 4. Le Service est guidé, dans l'exécution de ce mandat, par les principes qui suivent_:(d) that the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders; (e) that offenders retain the rights and privileges of all members of society, except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence; |
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d) les mesures nécessaires à la protection du public, des agents et des délinquants doivent être le moins restrictives possible; e) le délinquant continue à jouir des droits et privilèges reconnus à tout citoyen, sauf de ceux dont la suppression ou restriction est une conséquence nécessaire de la peine qui lui est infligée;
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[23] The defendant, as earlier stated, concedes the existence of a duty of care. The content of the duty is well established. The prison authorities owe a duty to take reasonable care for the health and safety of the inmate while in custody: Timm, supra; Abbott v. Canada (1993), 64 F.T.R. 81 (T.D.); Oswald v. Canada (1997) 126 F.T.R. 281 (T.D.). In addressing the duty of care, regard must be had to the circumstances surrounding the incident: Scott v. Canada, [1985] F.C.J. No. 35 (T.D.). An important consideration in the foreseeability of risk is the likelihood of the occurrence of the event giving rise to the risk. The issue is not whether there is a duty of care, but whether the acts or omissions of the defendant fall below the standard of conduct of a reasonable person of ordinary prudence in the circumstances: Russell v. Canada 2000 BCSC 650, [2000] B.C.J. No. 848 ; Hodgin v. Canada (Solicitor General) (1998), 201 N.B.R. (2d) 279 (Q.B.T.D.), aff'd., [1999] N.B.J. No. 416 (C.A.).
[24] The question, therefore, is whether the standard was met in this case. The plaintiff says that it was not, while the defendant says the opposite. It is necessary to examine first what is normally done by CSC in a medium security federal institution (particularly between the hours of 10:00 p.m. and 10:00 a.m.) and second, what was done in this case.
[25] Before proceeding in this respect, I must resolve one of the discrepancies in the evidence. Earlier, I noted that Corrections Officer Hunter testified that he entered Bastarache's cell on the morning of June 25th and that he noticed blood on Bastarache's pillow. Hunter related that it was not until he was standing over Bastarache that he noticed the blood. He stated that approximately one or two inches of blood was visible, when he was "standing straight over Bastarache and looking down at him". When he turned Bastarache over, Hunter saw that the spot of blood on the pillow was about "six inches, the size of a small plate". This is in contrast to the evidence of Blanchard, who said that there was blood all over the bed linens and all over the cell.
[26] I accept the evidence of Hunter over that of Blanchard. Blanchard had consumed a large quantity of drugs the preceding day and evening; he was admittedly "hung-over"; the institutional preventative security officer (IPSO) noted in his report of June 25th that Blanchard confessed to being high that day (June 25th) after taking valium along with tylenol for pain. Corrections Officer Hunter was specific in his description: his observation report (completed immediately after his attendance at Bastarache's cell) is consistent with his testimony, and he secured the cell "to be on the safe side". In the three medical reports, no mention is made of blood on Bastarache's body, although it is clear he was taken immediately and directly from his cell to the health care facility. Additionally, the Moncton Hospital report states that Bastarache's wound was contaminated with a considerable amount of hair that had to be debrided and that "blood loss was negligible, none was transfused".
[27] I proceed with my analysis regarding the duty of care on the basis that the blood was not "everywhere". Rather, there was blood on Bastarache's pillow, as described by Hunter.
[28] Springhill Institution (Springhill) has a general inmate population of approximately three hundred and fifty male offenders. It also serves as the regional reception centre for new inmates entering the federal corrections system.
[29] Inmates designated to serve their sentences at Springhill are assigned to a housing unit. Each housing unit is comprised of six ranges occupying two levels. Each range contains seventeen cells. Thus, there are approximately one hundred and two inmates in each housing unit. The cells measure approximately twelve by eight feet and cell doors have a small, solid glass window. Each inmate has a cell. Inmates are protective of their cells and refer to them as their "houses".
The six ranges within the housing unit are visible from a control centre from which the cells can be locked and unlocked. Inmates do not occupy the control centre.
[30] There are four formal counts per day at Springhill. Counts occur first thing in the morning, just before lunch, immediately before supper and at lock-up (approximately 10:20 p.m.). Inmates must be in their cells during formal counts and the cells are locked for the count. After the 10:20 p.m. lock-up, cells remain locked until 7:00 a.m. the next morning. Typically, inmates lock their own cells, but cannot open them. A corrections officer opens the cells, usually from the control centre. Once unlocked, cells remain open unless an inmate locks his individual cell. In addition to the formal counts, there are informal counts.
[31] Informal counts during the day occur roughly on an hourly basis and are made by counting the number of inmates in various areas of the institution without interfering with the activity in those areas or with the operation of the institution. During backshift (11:00 p.m. - 7:00 a.m.), there are hourly counts by the corrections officer on duty in the unit.
[32] Throughout the day and evening (until backshift), there are at least three corrections officers present in the housing unit. These officers are normally located in the housing unit office and are accessible to inmates there, or during the officers' rounds on the range. During backshift, there is one officer in the unit. That officer, after completing his hourly round, swipes a time clock on each range and calls in to report that "everything is okay".
[33] During the backshift hourly counts, the corrections officer views the interior of each cell. The officer checks to ensure the inmate's presence and looks for signs of distress or any indication that all is not as it should be, or that there may be a problem. The officer uses a particular type of flashlight that illuminates the entire cell. If an inmate does not appear "normal", the officer will kick on the door to ensure that the inmate is alright. To enter a cell during backshift, the corrections officer requires authorization from a corrections supervisor. It is the backshift corrections officer's responsibility to ensure that the cells are locked. Hunter testified that it was his practice, when he was on backshift, to check to see that the cells were locked during the first round. He did not check the cell doors on each round thereafter because the noise in doing so could disturb the inmates' sleep. A corrections officer (if nothing is amiss) can complete the hourly count during backshift in two or three minutes.
[34] There are Commissioner's Directives dealing with the counting of inmates. Individual institutions promulgate standing orders that contain further details specific to the particular institution.
[35] This incident occurred on a weekend. While the formal and informal counts do not change on weekends, the general atmosphere in the institution is somewhat more relaxed because inmates do not have to report for work. During the week, most inmates rise at 7:00 a.m., go to breakfast, and report to work at 8:00 a.m. On weekends, they do not report to work and many choose to sleep in on Saturday and Sunday mornings rather than get up and go to breakfast.
[36] The last formal count at Springhill on June 24th would have occurred within minutes of Blanchard's departure from Bastarache's cell. As noted earlier, Blanchard cannot recall whether Bastarache was standing or sitting when he left him. Regarding the counts during backshift, the Deister clock readings printout indicates that the counts were completed hourly between 11:00 p.m. on June 24th and 7:00 a.m. on June 25th, 1995.
[37] Mr. Bastarache submits that the conduct of the Springhill corrections officers fell below a reasonable standard of care. Referring to various provisions of the CCRA, specifically sections 3, 4, 5, 6, and 70, he argues that CSC is responsible not only for carrying out the sentences of inmates, but for providing for the inmates' health, safety and welfare. Mr. Bastarache contends that the corrections officers performing the night counts, including the formal lock-up check, look for a "living, breathing body" and no more. The counts are cursory and are completed in less than two minutes. They amount, in substance, to a counting of heads. It is argued that a positive duty exists to ensure that sufficient mechanisms are in place to carry through on the obligation regarding the inmates' well being.
[38] Comparing the relationship between institution officials and inmates to that of parent and child, Mr. Bastarache asserts that inmates are totally dependent upon CSC for their needs. While not going so far as to characterize the relationship as fiduciary, it is suggested that it approaches that level. The greater the knowledge of CSC officials that, realistically, institutions are not free of violence, fear, weapons, drug and gang activity, and the like, the higher the duty and the standard of care.
[39] Mr. Bastarache notes that the backshift hours comprise one third of the inmates' day and he says that there exists a positive duty to ensure their safety during that period. He contends that a more active approach is required to ensure that inmates are in a state of well being at lock-up. A variety of mechanisms or practices could be employed, for example, a stand to count. Mr. Bastarache maintains that the best evidence available is that at 10:00 p.m. on June 24th he was injured and his injury was visible. He was also impaired and even a cursory, visual inspection would have revealed that he was not in a state of well being. Had the officials been doing their jobs properly, his condition would have been obvious. Nothing was done for him until after 10:00 a.m. on June 25th. Such omission, it is said, falls below the requisite standard of care.
[40] I conclude, for the reasons that follow, that the plaintiff has not met the burden of establishing a breach of the duty of care on the part of the Springhill officials.
[41] The evidence reveals that, notwithstanding the philosophy of the CCRA and the efforts of CSC officials, inmates engage in illicit and illegal activity including, among other things, drug use and trade. Violence, while not frequent, does occur. Inmates make every effort to conceal their illicit activities as well as any incidents of violence. The reasons for concealing injuries are twofold: to avoid drawing attention to the reasons underlying the injury (which could relate back to and reveal an illegal activity); and to avoid drawing attention to the parties involved (viewed as "ratting" that could lead to further reprisals).
[42] It is clear that Mr. Bastarache was involved with drugs during his time in federal custody. He pleaded guilty to possession of several pieces of hash in May, 1995, and to possession of narcotics in 1992. It is also clear that Mr. Bastarache was not a stranger to the federal corrections system and its workings. It was Mr. Bastarache's evidence that, if he did not view an injury as life threatening, he would avoid reporting it and would attempt to hide it from corrections authorities. Mr. Bastarache had previously been the victim of a significant assault, in January of that year and did not seek medical attention for two days. When he did, he was deceptive about the cause of the injury and insisted that he had fallen down some stairs.
[43] The evidence also discloses that Mr. Bastarache was conscious after the assault in issue, he was standing in his cell, he was capable of asking for and taking additional drugs, he was urged by Blanchard to seek medical attention, he refused and insisted that he was fine. The following morning, he appeared to be sleeping in his bed. His wound was not immediately visible because he lay wound-side down.
[44] Contrary to his assertions, Mr. Bastarache's wound was not "obvious". It was over his left ear, at least partially concealed by hair, and was not bleeding profusely.
[45] There is no evidence to suggest that, within the minutes following Blanchard's departure from Bastarache's cell, Mr. Bastarache appeared visibly distressed. There is no entry regarding Mr. Bastarache in the housing unit log book for June 24th. The June 25th entries read as follows:
Staff Note -
D-17 Bastarache - was taken to the I/S Hosp. To have cut above ear checked - see observation report 1000 hrs. J. Hunter
Bastarache's cell opened by R. McSavaney and John Hunter on orders from C. Stonehouse to check for blood. Cell closed and padlocked and button capped. R. McSavaney 1500 hours
[46] Neither Mr. Coon (after thirty-one years in corrections) nor Mr. Hunter (after twenty-three years in corrections) was aware of any other incident where an inmate had been found injured in the morning as a result of trouble that had occurred the preceding night.
[47] Between the hours of 10:20 p.m., June 24th and 10:00 a.m., June 25th, Mr. Bastarache was viewed by not less than three different corrections officers on not less than nine occasions. No visible signs of distress were noticed. No indications of difficulty or injury were noticed.
[48] On the evidence, it is reasonable to infer that, a few minutes after Blanchard's departure from Bastarache's cell, Mr. Bastarache, hoping to avoid detection, locked his cell and went to bed. To the corrections officers conducting counts, he appeared to be sleeping peacefully and there would be no reason to suspect that anything was wrong. Mr. Bastarache's allegation that only a cursory examination occurs during lock-up and backshift counts fails to recognize and acknowledge that the corrections officers are trained individuals who have been instructed in what to watch and look for when conducting their rounds.
[49] The corrections officers must take reasonable care with respect to reasonable risks of which they ought to be aware. Perfection or infallibility is not required. Reasonable and adequate measures in the circumstances will suffice. On the above noted facts, I do not find that the acts or omissions fall below the standard of what a reasonable person of ordinary prudence would do in the circumstances.
[50] That, however, does not end the matter and I turn now to the second discrepancy in the evidence. Blanchard testified that, upon his return from the hospital to Springhill at midnight, he asked the escort officer to go and check on Bastarache. If this were indeed the case, it might well affect my conclusion. I have determined, for a variety of reasons, that Blanchard's evidence in this respect is not reliable. First, Blanchard vacillated with respect to where and what he allegedly said to the officer. He stated, in an undated letter containing the salutation, "To Whom It May Concern":
As the doctor was stitching up my finger I realized how serious a head injury could be so I told the guards to call the jail and have someone check on Ronny. He's been hit in the head. The reason I said this is because the doctor knew I was lying about falling in the yard and catching my finger under a fence. I told the guards someone attacked us with a bar. Upon arriving at Springhill Ins. around 12:00 a.m. I tried to make my way up to Ronny's range to see if he was alright. The guards said it's time to lock up Blanchard he's fine.
[51] When giving evidence at the trial, Blanchard said that he "didn't tell them _[the officers] that he [Bastarache] was hit with a bar", he "just asked them to go and check on him". When questioned about this shift in his story, Blanchard reiterated that he did not tell the guards that Bastarache had been hit.
[52] Further, in a letter that he wrote to Bastarache ten days after the incident, Blanchard reviewed all that had occurred in great detail. There was no mention in the letter of any such statement to the officers. On cross-examination, Blanchard admitted that had he made such a statement to the corrections officers, he likely would have mentioned it in his letter to Bastarache.
[53] Blanchard is not able to say which, or how many, officers escorted him to Springhill Hospital. The unit log book contains the following entry regarding Blanchard:
Blanchard (B-11) cut his hand (or fingers), went for stiches at 22:30, returned at approximately 0010. He wants it noted that he will need more Tylenol 3 in the morning for pain. L. Ammingon
Blanchard has no recollection of requesting the tylenol. There is no reference to Bastarache in the log book notations, other than those noted earlier.
[54] Having lied about the cause of his injury on June 24th, Blanchard repeated his lie the following day when he met with the IPSO officer. He does not, however, recall the meeting. It strikes me that if Blanchard had alerted the officers to Bastaraches's injury, as alleged, the motivation to lie would dissipate. Blanchard also initially stated that he tried to awaken Bastarache between 7:00 and 7:30 a.m. on June 25th. Upon reflection, he decided that it was closer to 10:00 a.m.
[55] Blanchard related that he felt badly for not having done more to help Bastarache the night he was injured. He acknowledged that he had never complained to the institution about the corrections officers not having reacted to his alleged request for them to check on Bastarache.
[56] It is noteworthy that the following observations of Blanchard, on the night of June 24th, were recorded by Corrections Officer W. Croft in his observation report. Blanchard's speech appeared to be "rapid, rambling and at times incoherent". It was also noted that "his pupils were extremely dilated ... [he had] some degree of balance loss" and he "did not appear in any pain". Blanchard, in giving his evidence, stated that he "was quite high".
[57] There is no doubt that by midnight of the night in question, Blanchard's perception was severely impaired. It bears repeating that he has no recollection regarding his request for tylenol. I conclude that his statement that he alerted corrections officers to Bastarache's condition is unreliable and improbable. It is more likely that it was contrived, after the fact, to bolster his friend's claim. Thus, my earlier determination remains unaltered.
[58] While there is no question that this was a most unfortunate and devastating event for Mr. Bastarache, I cannot conclude that there was any beach of duty of care by the defendant. There was no foreseeable or unreasonable risk of harm to Mr. Bastarache as a result of acts or omissions by the staff or officers at Springhill Institution. My finding in this respect is fatal to the plaintiff's action. The action will be dismissed, with costs, that I fix in the all inclusive amount of $1,500., payable by the plaintiff to the defendant. An order will so provide.
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Judge
Ottawa, Ontario
December 15, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1300-97
STYLE OF CAUSE: RONALD L BASTARACHE
v. HER MAJESTY THE QUEEN
PLACE OF HEARING: Moncton, New Brunswick
DATE OF HEARING: December 1 - 3, 2003
REASONS FOR ORDER BY: The Honourable Madam Justice Layden-Stevenson
APPEARANCES:
Randy Maillet FOR PLAINTIFF
Scott McCrossin FOR DEFENDANT
SOLICITORS OF RECORD:
Mr. Randy Maillet FOR PLAINTIFF
Fredericton, New Brunswick
Mr. Morris Rosenberg FOR DEFENDANT
Deputy Attorney General of Canada
Halifax, Nova Scotia