Docket: T-826-00
Neutral Citation: 2003 FCT 415
Ottawa, Ontario this 8th day of April, 2003
Present: Madam Prothonotary Aronovitch
BETWEEN:
WILLIAM FARROWS-SHELLEY
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
[1] The plaintiff, William Farrows-Shelley, is suing Her Majesty for negligence following an altercation with his cell-mate, at Warkworth Institution. As a result of the scuffle, Farrows-Shelley suffered some minor cuts and lacerations but also allegedly suffered anxiety and emotional distress, believing that in the fight, he may have become infected with hepatitis and HIV which he took his cell-mate to have.
[2] The negligence of Correctional Services Canada ("CSC") is allegedly in allowing the plaintiff to be double-bunked with Leonard Welch, an individual who according to the plaintiff, was known to have proclivities to violence and also known to be infected with hepatitis C and HIV.
[3] The plaintiff's original claim includes an allegation of malice, levelled specifically against Correctional Officer McCrory, who assigned Farrows-Shelley his cell upon his arrival at Warkworth. The allegation, withdrawn at trial, was that Officer McCrory bore a personal grudge against the plaintiff for having had an affair with his wife. According to Farrows-Shelley, Officer McCrory would have bunked the plaintiff with Leonard Welch despite Farrows-Shelley having requested not to be placed with him.
[4] The plaintiff's evidence-in-chief is to the effect that the placement officer would have had access to the Offender Management System ("OMS") computer file that would have alerted him to Welch's "history of violence". Farrows-Shelley says that he had learned that Welch was a very dangerous inmate, infected with hepatitis C, and HIV, who had a history of acting out violently in the reception cells prior to Farrows-Shelley's arrival at Warkworth.
[5] At trial, in addition to abandoning the allegation of malice, the plaintiff, with the consent of the Crown, proposed a question for the Court's consideration in preference to the issues for trial identified by the Court at pre-trial. Counsel jointly proposed the following, single issue for determination.
"Is there a duty on the Correctional Service of Canada to warn an inmate of potential violence or health hazards that may accompany the inmate's placement in a double-bunking situation with another inmate? What damages, if any, are appropriate in this situation?"
[6] To begin, the Court will not entertain hypothetical questions in the vague terms proposed. Nor is the Court, in the context of this simplified action, constituted to hear what amounts to a reference on the scope of the duty to warn in light of unknown and undefined "potential violence and health hazards". In the context of this action, a duty, if any, has to be proven as owing to the plaintiff, and its violation, if there be such, has to be demonstrated on the limited and particular facts of this case.
[7] Let me now turn to consider the evidence. The plaintiff was transferred to Warkworth from another institution on July 5, 1999. He was interviewed by Correctional Officer McCrory as part of the intake process. Farrows-Shelley was then placed in double occupancy with inmate Welch, who alone occupied the cell at the time. Welch had arrived a month earlier, on June 2, 1999.
[8] The incident at issue occurred on July 23, 1999, sometime after 10:00 in the evening. According to the plaintiff, he had gone to bed in the top bunk, when Welch came in and said he would be putting the light on, to read. Instead of the desk lamp, which would not have been objectionable, Welch proceeded to put on the overhead light which was located directly overhead of the plaintiff, making it impossible for him to sleep. As Farrows-Shelley tells it, he asked Welch to please turn on the desk lamp. Welch responded with a vulgar expression of dismissiveness. The plaintiff got out of his bunk, turned on the desk light and reached under the shelf where the light switch was located to switch off the overhead light. Suddenly he saw a sharp object coming at him. He moved back, but was caught and slashed by the object. A scuffle ensued with Farrows-Shelley attempting to pin down or immobilize Welch, which he eventually was able to do.
[9] According to Correctional Officer Ron Hutchison who was doing a "walk about" in the vicinity, it was Welch who called out to have Farrows-Shelley removed from the cell. As Officer Hutchison was removing inmate Farrows-Shelley from the cell he observed blood spots and a scratch across the plaintiff's chest, a gouge to the left side of his neck and a small puncture to his left upper back. Welch for his part was removed from the cell bleeding from his right wrist and left knuckles. The cell was locked. As a result of the blood exposure, the institutional hospital was called. The two inmates were removed to separate units where they were seen and attended to by a nurse. Inmate Farrows-Shelley was then sent on to Belleville General Hospital for treatment of his wounds and to undergo a post exposure protocol.
[10] The plaintiff testified that while he was struggling to subdue Welch and in the aftermath of the fight, he was anxious that he might become infected with what he took to be Welch's "blood-borne" diseases. He testified that he had previously been at Kingston Penitentiary at the same time as Welch. While the plaintiff did not know Welch at Kingston, he "knew of him".
"I knew him to be a homosexual and I knew him to have some sort of problem with diseases"..." At Kingston Penitentiary, every Tuesday and Thursday at two o'clock, people with HIV, hepatitis go to the med cage to pick up their medication. I work in the kitchen and I get pretty well the run of the dome, go around the different ranges and that to see what's going on, and you see these people lined up. And Mr. Welch is always there along with a friend of mine, Malcolm Wheeler, who has died of AIDS since. So throughout that med cage at that time of day that's what that medication is specifically for.."
[11] Farrows-Shelley was administered blood tests on July 28, 1999 as well as, September 10, 1999. Each time he tested negative for the hepatitis B, C and HIV. He did test positive for hepatitis A. However, according to the evidence of Dr. Liao which stands uncontroverted in this proceeding, the plaintiff's, infection is one that would have occurred at least three months prior to July 28, the date of the first test. Indeed counsel for the plaintiff made clear that he did not intend to argue on behalf of the plaintiff that Farrows-Shelley would have contacted hepatitis A from his cell-mate. In addition there is no evidence that the plaintiff suffers from or has contracted any of the maladies that Farrows-Shelley ascribes to Welch.
[12] Most importantly, other than the plaintiff"s suppositions, there is in fact no evidence that Welch had either hepatitis or was infected with HIV. What we know, and the defendant acknowledges, is that Welch told Officer Normington, the officer at Warkworth who conducted Welch's admission interview, either that he had a transmissible disease or perhaps actually stated what the disease was.
[13] Deb Chase, is an employee of Corrections Canada. In July 1999, she was one of five unit managers at Warkworth whose responsibility included the Reception Unit. She explained the intake process, and the factors taken in consideration in making determinations about shared accommodations. Chase's evidence was to the effect that inmates arrive at a transfer institution having been pre-cleared as fit for the open population of that institution.
[14] Chase explained that the OMS is a Corrections-wide computer system that contains information about the progress of each offender. Before transfer, the parole officer at the transferring institution reviews the inmate's history, profile, risk assessment and other circumstances and specifically looks in the Offender Management System (OMS) to see if there are any incompatibles in the institution to which he is being transferred. If there are incompatibles identified, then the inmate is usually not transferred to that institution. According to Chase, on the answers given at the admission interviews conducted with Welch and Farrows-Shelley, neither admitting officer would have had any reason to check the OMS.
[15] More to the point, medical information about an offender is treated by CSC as private information which is not shared with other inmates or indeed the staff of the institution. Prison policy precludes anyone other than health workers from having access to medical information which is kept with the Health Care Unit and is not otherwise available. The intake officers whose evidence is adduced in this proceeding, as confirmed by Chase, testify to the fact that questions about health are dealt with an intake, only to ascertain whether an inmate might have a health problem which raises a "personal dignity issue" causing inconvenience or embarrassment, such as to preclude double-bunking.
[16] Chase agreed that there are offenders with HIV infection in the open prison population, much like the general population. There is moreover a protocol in place "Commissioner's Directive 821" to protect individuals including staff from possible infection by contact with the body fluids of individuals capable of transmitting diseases. All exposed fluids from staff and inmates alike, are treated as though communicable, by the application of "Universal Precautions", including having a bio-hazard team clean up any blood or urine.
[17] What of Welch's violent tendencies? Again, no evidence has been adduced that Welch had any greater propensity for violence than the norm or indeed, than the plaintiff himself. The CSC's evidence is to the effect that any such proclivities would have precluded his placement in a medium security institution such as Warkworth.
[18] Plaintiff's counsel made much of the conflict between the warden of the "sending institution", Kingston Penitentiary and that of Warkworth, respecting Welch's transfer, a conflict that was ultimately resolved by the Regional Administrator.
[19] The warden of Warkworth would have denied transfer to Welch and wrote of him:
"Although he does not have incompatibles at others medium facilities in Ontario Region, given Mr. Welch's predatory nature, placement at Warkworth is not appropriate given the population profile."
The Regional Administrator's final decision approving the transfer, states that the "comments provided by Warkworth Institution are not supported by case review" and later in the same report:
"... At Kingston Penitentiary Welch has had to be sheltered to some degree in the past...due to his identification as "pray" rather than predator. There is nothing to identify him as predator, therefore, Warkworth is an appropriate environment versus another medium security institution."
[20] As to Welch's history at Warkworth, the CSC's uncontroverted evidence is that there is no documented record of any altercation or outbreaks of violence on the part of Leonard Welch, from the time he entered the institution on June 2, 1999, to July 27, 1999.
[21] Indeed, on the evidence, that Welch might have been a source of violence or intimidation to Farrows-Shelley is quite improbable. The plaintiff like many of the felons in the institution, had a history of violence to match that of Welch. Farrows-Shelley was previously classified as a dangerous offender and had served time at a maximum security facility. At the date of the trial, Farrows-Shelley was serving his second penitentiary sentence at Warkworth. His convictions include involuntary manslaughter, sexual assault causing bodily harm, attempts to strangle and a conviction for having stabbed a man forty-five times. The relative stature of the two men is also worth noting. Leonard Welch was described as slight, at 5' 7-1/2", weighing 151 pounds. Farrows-Shelley for his part is 5' 11" and weighs 190 pounds.
[22] There is no doubt, and Farrows-Shelley is candid in that regard, he disliked Leonard Welch. The plaintiff didn't like living with him "because of the way he acted" and "the way he looked after himself". Farrows-Shelley says the man never went near a shower. Welch was apparently also a moody person and admittedly in bad humour when he arrived at the cell at roughly 10:00 on the night of the fight.
[23] The plaintiff, in the course of his testimony, provided several opportunities to impugne his credibility. Rather than reference these occasions in any detail, I will dwell on his account of how the altercation between himself and Welch came about. Farrows-Shelley's affidavit has the plaintiff descending from his bunk to put out the light and being surprised by Welch's violent attack on him. This belies the plaintiff's demeanour on cross-examination. His fury in response to being sworn at by Welch, was still palpable at trial, as he recounted the events of that evening, rising from his seat as he testified. His anger aroused, I doubt that Farrows-Shelley simply "got out" of his bunk. He likely dismounted suddenly and aggressively, landing as he said he did, very close to Welch. He more likely startled Welch than the other way around.
[24] I have no doubt that Farrows-Shelley in that instance provoked Welch's reaction and is the author of his own misfortune. I conclude that the incident of July 27, was caused by the events of that same evening and cannot in any way be attributed to Welch's undue tendencies to violence, of which as I have said, no evidence has been adduced.
ANALYSIS AND CONCLUSION
[25] It is the contention of counsel for the plaintiff that this ought to be a test case to expand the law, in recognizing a duty to warn as distinct from the duty to protect. As I understand it, the plaintiff sees the jurisprudence to date, as tending to put the onus on the inmate, such that the duty to protect is triggered only where the inmate himself or herself warns of imminent danger.
The genesis of this newly evolving duty is said to be the 1976 judgment of the Supreme Court of California, in Tarasoff v. Regents of University of California (1976), 17 Cal. 3d 425. Also cited on behalf of the plaintiff are: Osman v. United Kingdom, October 28, 1998, European Court of Human Rights; Edwards v.United Kingdom, March 12, 2002, European Court of Human Rights; Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, [1998] O.J. No. 2681, 39 O.R. (3d) 487, (Ont. Ct. G.D.) and Smith v. Jones, [1999] 1 S.C.R. 455 (S.C.C.).
[26] I do not view the duty to warn as distinct but rather as an element fo the duty to protect. The Ontario Court of Appeal makes the point as follows at page 26 of Jane Doe supra:
"In my view, the police failed utterly in their duty to protect these women and the plaintiff in particular from the serial rapist the police knew to be in their midst by failing to warn so that they may have had the opportunity to take steps to protect themselves."
That said, I do not find that any warning was warranted in the circumstances . The plaintiff was asked when he arrived at Warkworth whether there were inmates who were incompatible such that he could not enter the open population. Farrows-Shelley acknowledged there were not, but maintains that he asked not to be placed with Welch. Officer McCrory states that he has no recollection of this. A review of the logbook from the reception unit found no record of any complaint from either cell-mate about being double-bunked with one another or, of any potential problems between the two men.
[27] I have already made the point that the plaintiff has not discharged the onus of demonstrating that Leonard Welch had proclivities to violence. Indeed, I have made the finding of fact that Welch's attack on the plaintiff was provoked by the plaintiff, which provocation was the root cause of the fight.
[28] As to Welch's alleged blood-borne diseases, the plaintiff merely assumes from having seen of Welch in the medication line at Kingston Penitentiary, that the latter had HIV and hepatitis. It has not been proven in this proceeding that Welch, in fact, was afflicted with either malady. Bill Normington, the intake officer to whom Welch "volunteered" information about his health had no obligation to pass it on or warn Farrows-Shelley. First, Farrows-Shelley "knew" as much as officer Normington about Welch's presumed illness. Indeed, Deb Chase makes the point that Welch may well have had an ulterior motive in imparting information about presumed illnesses, to an intake officer.
[29] More importantly CSC's policy is clear that an inmate's medical information is treated as private personal information. The right to privacy is balanced with the protection of the prison population by the application of a policy of Universal Precaution, followed without exception, where any bodily fluids are exposed. Then too, Chase made clear that the decision that an individual can enter the open population, including health considerations, is made prior to the approval of a transfer to an institution such as Warkworth. Officer Normington had no reason nor authority to either investigate or authenticate the health information, let alone disclose that information, or misinformation, as the case may be, to anyone.
[30] On the facts of this case, CSC did not have a duty to warn Farrows-Shelley, as the plaintiff has not discharged the onus of proving the most fundamental of the elements required to found a duty to warn, namely a clear and foreseeable danger to him in sharing a cell with Welch, that would have been known to CSC.
[31] There being no basis for a finding of liability I need not consider damages. I would comment however that the plaintiff has failed to prove any damages other than minor abrasions and lacerations, certainly none by way of either infection or emotional distress.
JUDGMENT
1. The action is dismissed.
2. In the event the parties are unable to agree, they may make brief representations as to costs within twenty (20) days from the date of judgment.
"Roza Aronovitch"
Prothonotary