Walters (Litigation Guardian of) v. Ontario
Citation: 2017 ONCA 53 | 136 O.R. (3d) 53
Court: Court of Appeal for Ontario
Judges: Strathy C.J.O., LaForme and van Rensburg JJ.A.
Date: January 23, 2017
Case Summary
Torts — Negligence — Plaintiff injured in provincial jail when attacked by rival gang member in his unit
The plaintiff was seriously injured when attacked in a provincial jail by a rival gang member. A correctional officer had placed the plaintiff in the same unit as the assailant pursuant to the jail's policy of separating members of the same gang. The plaintiff brought an action for damages, alleging that the correctional officer was negligent in placing the plaintiff and the assailant in the same unit and that Ontario was vicariously liable for that negligence. The trial judge found for the plaintiff. Ontario appealed.
Held: The appeal should be dismissed.
The trial judge did not err in finding that the policy did not negate the correctional officer's common law duty of care to persons in his custody or Ontario's vicarious liability for any breach by the correctional officer of that duty of care. The policy required that correctional officers place members of the same gang in different units; it did not also exclude liability for the placement of rival gang members in the same unit, at least when those inmates' Offender Tracking Information System cards did not include non-association alerts. Therefore, the trial judge's finding that the correctional officer should have considered the plaintiff's incompatibility with the assailant was not inconsistent with the immunity provided by the policy.
The trial judge did not make any reviewable errors in his application of the relevant standard of care to the correctional officer. According to the officer's own evidence, he knew, before he placed the plaintiff in the assailant's unit, that the assailant was dangerous and was charged with attempted murder of a member of another gang. Other evidence supported a conclusion that the officer should have known that the assailant was an unusually dangerous inmate. Given what the officer knew about the assailant and the information that he obtained about the plaintiff, he should have known not to place them in the same unit.
The trial judge did not err in concluding that the correctional officer's negligence, for which Ontario was vicariously liable, caused the plaintiff's injuries.
Introduction
[1] This case concerns the provincial Crown's liability for injuries that one or more inmates at a provincial jail inflicted on a fellow inmate. The victim alleges that corrections officials, through negligent conduct in the course of their employment, facilitated the attack. Jason Walters, the primary plaintiff and respondent, was a low-level member of a gang called the "Malvern Crew"; Tyshan Riley was a "senior functionary, if not the leader" of another gang, the "Galloway Boyz". At the time of the incident, these two gangs, each of which was from Scarborough, were engaged in an ongoing "turf war". When Walters arrived at the Toronto Jail (the "Don Jail") in November 2008, the administration placed him in Riley's unit.
[2] While he was incarcerated at the Don Jail, Walters suffered a severe beating from one or more fellow inmates. Walters sued various parties, including Her Majesty the Queen in right of Ontario ("Ontario") and the Ministry of Community Safety and Correctional Services ("MCS"), claiming damages for injuries that he alleged the Don Jail's correctional officers ("COs") had caused by negligently failing to prevent the assault.
[3] The trial judge held that the Don Jail's policy of separating members of the same gang negated neither the COs' common law duty of care to persons in their custody, nor Ontario's vicarious liability for any breach by the COs of that duty of care. He found that Riley had directed the assault on Walters, and that the COs should have known at the time of Walters's placement that Riley was likely to attack members of rival gangs. With the support of those findings, the trial judge concluded that the COs were negligent in housing Riley and Walters in the same unit, and that their negligence caused Walters' injuries.
[4] Walters conceded that he was responsible for 15 per cent of the damage that he sustained because he did not request placement in protective custody at the Don Jail. The parties have agreed to an amount of damages.
[5] Ontario appeals, asserting that the trial judge erred (i) in applying the duty of care owed by COs to inmates; (ii) in concluding that the COs at the Don Jail were negligent; and (iii) in concluding that they caused Walters' injuries.
General Background
[6] Walters was admitted to the Don Jail on November 17, 2008 on gun possession charges. The staff of the jail's Admitting and Discharge Department was aware from Walters' previous incarceration at the Toronto East Detention Centre ("TEDC") that he was a member of a violent street gang, the Malvern Crew, because his card for the Offender Tracking Information System ("OTIS") identified him as such. As a result, he was categorized as a security threat group ("STG") member. More than 90 per cent of the STG inmates were street gang members.
[7] In July 2008, the Don Jail implemented a policy for the management of STG inmates. The policy prescribed a process of "numeric balancing" of STG members throughout the jail. In particular, the policy required that, whenever possible, members of the same gang should be dispersed throughout the jail and housed on separate units.
[8] The on-duty admitting and discharge manager, Steve Aspiotis, placed Walters in Unit 3A South (the "unit"), which, at the time, housed 39 other inmates in 18 cells. He was the only member of the Malvern Crew assigned to the unit. Of the other inmates in the unit, five were identified as members of STGs, including Riley, whose OTIS card identified him as a member of the Galloway Boyz street gang.
[9] The Don Jail staff recognized that inmate incompatibility was part of the calculus required to implement the STG policy; they pointed out that non-association alerts on the OTIS card would inform placement staff of any inmate incompatibility. Riley's OTIS card did not contain a non-association alert relating to Walters and Walters' OTIS card did not have any non-association alerts.
[10] At the time when Aspiotis placed Walters in the unit, he acknowledged he was concerned only with complying with the "numeric balancing" requirement in the "policy". And, while he had information that clearly identified which other inmates belonged to what STG, he paid no attention to any gang rivalries or any other factors beyond "numeric balancing" and "non-association alerts" that might have had a bearing on Walters' placement. In his view, such considerations would have been outside the ambit of his mandate under the "policy".
[11] Walters made no request to be moved into protective custody, either before or after his admission to the unit, though, once he had entered the unit, he probably knew that Riley was there.
[12] Between 6:20 p.m. and 7:27 p.m. on November 19, 2008, after the last round by the COs, Walters was attacked from behind by a muscular black man. The man, perhaps with the assistance of some other inmates, dragged Walters through the eastern portion of the unit to the area of the shower and washrooms. Walters was then beaten and dragged back to the area near the sally port, unconscious.
[13] A CO was summoned to the unit by one of the inmates at approximately 7:27 p.m., and Walters was discovered "in a prone position, soaking wet and unconscious on a wet sheet near the sally port door". A medical alert was sounded and Walters was transported to St. Michael's Hospital.
[14] Walters sustained severe injuries. He was hospitalized in an acute care facility until early May 2009, after which he was sent to the Toronto Rehabilitation Institute, where he remained for an additional 16 months. Walters now suffers from permanent brain damage and acute speech impairment.
The Trial Judge's Decision
[15] The trial judge found that Walters' attack and subsequent injuries occurred because Aspiotis breached his duty to take reasonable care for the safety of prison inmates under his charge. He concluded that the COs at the Don Jail should have known that placing Walters, a member of the Malvern Crew, in the same unit as Riley, a member of the Galloway Boyz, exposed Walters to a high risk of harm. Ontario, he held, citing Timm v. Canada, [1965] 1 Ex. C.R. 174, at p. 178; R. v. MacLean, [1973] S.C.R. 2, [1972] S.C.J. No. 69, at p. 7 S.C.R., was vicariously liable for acts of COs who, in the course of their employment, negligently create a foreseeable risk of harm to an inmate.
(a) The Absence of Reasonable Care
[16] The trial judge noted that in July 2008, the Don Jail adopted a policy whereby COs would designate certain inmates as STG members, who were to be housed in institutions based on the concept of "numeric balancing". Members of the same street gang were not to be placed in the same unit with other members, but distributed across the institution to prevent them from gaining power through association. A description of the STG initiative was circulated in a memo to COs, but it was never incorporated into their standing orders, training or operating manuals.
[17] The trial judge accepted that the STG initiative pursuant to which Walters was housed in the unit with Riley -- and in particular its concept of numeric balancing -- was a government "policy" that would negate any duty of care inconsistent with it. He held that only the MCS possessed the expertise needed to understand the economic, political and social factors associated with housing decisions at the Don Jail. He also accepted that the policy was not made in bad faith or so unreasonable as to constitute an invalid exercise of discretion.
[18] Further, the trial judge accepted that the unpredictable nature of the prison setting entails that an inmate who attempts to hold Ontario liable for an assault by another inmate must show that Ontario knew or ought to have known that it acted in a way that exposed him to a risk of harm by the other inmate. In this case, he found that the Don Jail's COs ought to have known that housing Walters with Riley risked harm to Walters. I am aware that this part of the trial judge's reasons suggests confusion on the nature of Ontario's liability, but, for reasons that I will provide below, I am confident that he ultimately held Ontario vicariously liable for employee negligence.
[19] Despite the application of the policy, the trial judge concluded that it was wrong for Aspiotis, the admitting and discharge manager, to apply the numeric balancing principle in the abstract without considering potential incompatibility between these inmates. He noted that "[i]nmate incompatibility on the basis of what the institution writ large ought to have known should have formed part of the calculus" (emphasis in original).
[20] Additionally, the trial judge found that Aspiotis never received training on how to apply numeric balancing. He noted that Walters was a designated STG member when housed in the Don Jail and was identified as a member of the Malvern Crew. He found that when Aspiotis placed Walters in the unit with Riley, he was concerned only with ensuring that no other members of the Malvern Crew were in the unit; Aspiotis viewed potential incompatibility between Walters and members of other gangs as outside his mandate under the policy.
(b) The Indicia of Risk of Harm to Walters
[21] First, the parties submitted in their agreed statements of facts that Riley's gang, the Galloway Boyz, and Walters' gang, the Malvern Crew, had engaged in violent skirmishes in 2004, and, at the time of Walters' admission to the Don Jail, Riley was on trial for alleged violent crimes arising from that conflict.
[22] Second, Walters made a telephone call to his girlfriend in which he mentioned another inmate, who, the trial judge concluded, was likely Riley. The trial judge viewed this call as an indication of Walters' concern for his safety. The fact that he never requested protective custody, the trial judge concluded, was rooted in his fear of retaliation for doing so.
[23] Third, the trial judge noted that, even though there were no pre-indicators of violence between Riley and Walters, the circumstances surrounding Riley's incarceration, including the extraordinary security measures taken for Riley's court appearances and the general awareness within the justice system of his propensity for violence, should have alerted the Don Jail's COs to the risk of harm to Walters.
[24] Those findings supported the trial judge's conclusion that the security risks that Riley posed ought to have been known to all members of the justice system, including the Ministry of the Attorney General's prosecutorial and court services branches, the Toronto Police Service and the MCS, and should have been brought to the attention of the Don Jail's COs, including Aspiotis. This information should have influenced Aspiotis' decision on Walters' placement.
(c) The Circumstances of the Assault
[25] The trial judge based his findings about the assault mostly on the testimony of Lonny Pearson, an ex-inmate who claimed to have witnessed the event. Pearson was an unsavoury witness, but the trial judge found that his inconsistent testimony was in part caused by a concern for retribution by gang members for testifying. Pearson's account was corroborated by the notes of a Toronto police officer, Angelo Xinos, which were taken when Pearson gave a statement to Xinos during the Toronto Police Service's investigation of the assault.
[26] The trial judge found that Riley was one of the attackers. According to Pearson, one of the attackers had just returned to the Don Jail from court that day and, at the attack's beginning, came out of Riley's cell. Riley was in court that day. The attack was "gang-related, if not motivated by gang antipathies", and Riley was the only member of the Galloway Boyz in the unit. Wet clothing was found in Riley's cell after the assault.
[27] Additionally, the trial judge concluded that the distance between the CO desk and the shower-toilet area in the unit, as well as the waist-high wall obstructing the showers, provided an opportunity for a "sustained assault" in the unit to escape the COs' notice.
(d) Conclusion
[28] The trial judge concluded that Walters' injuries were a direct result of Ontario's negligence and would not have occurred but for Ontario's negligence.
The Issues
[29] Ontario's submissions raise three issues on appeal:
Was the trial judge wrong in his analysis of the duty of care that the corrections officials owed to Walters, an inmate?
Did the trial judge make any reviewable errors in his application of the relevant standard of care to the Don Jail's corrections officials?
Was the trial judge unreasonable in concluding that the negligence of one of the corrections officials caused Walters' injuries?
[30] Below, I will address each of the questions in order.
Analysis
[31] At the outset, I can advise that I would dismiss Ontario's appeal. The issues on appeal are three basic elements of a negligence action: duty of care; breach of the standard of care; and causation of damage. The first issue, the determination of a duty of care, is a question of law. Appellate courts review such determinations for their correctness: Ryan v. Victoria (City), [1999] 1 S.C.R. 201, [1999] S.C.J. No. 7, at para. 21; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, at para. 8. The second issue, application of the relevant standard of care, and the third issue, causation of damage, are questions of mixed law and fact. On those matters, this court must not interfere with the trial judge's findings absent any "palpable and overriding error" or error concerning an "extricable question of law": Housen, at paras. 29-37, 70, 159.
[32] Read holistically, the trial judge's "duty of care" analysis discloses no legal error. Regarding the trial judge's findings of a breach of that duty and causation of damage, I detect neither any "palpable and overriding" error of fact nor any error concerning an "extricable question of law".
Issue 1: Was the Trial Judge Wrong in His Analysis of the Duty of Care That the Corrections Officials Owed to Walters, an Inmate?
[33] Here, Ontario submits that the trial judge made two errors. First, Ontario argues that he held the province directly liable, whereas the law generally holds Ontario liable in negligence only vicariously, through the negligence of specific Crown employees or agents. Second, Ontario claims that the trial judge erred in holding the Crown liable for two "core policy decisions", which I will describe briefly below.
(a) Ontario's Liability
[34] Generally, the provincial Crown can be liable in tort to inmates of correctional facilities only in the form of vicarious liability for torts that specific Crown employees or agents commit, and only if the plaintiff could have sued the employee or agent for that tort: Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, ss. 5(1)(a), 5(2); MacLean, at p. 7 S.C.R.; but see Iwanicki v. Ontario (Minister of Correctional Services), [2000] O.J. No. 955, [2000] O.T.C. 181 (S.C.J.), at paras. 14, 19-26, contemplating liability under s. 5(1)(c) of the Proceedings Against the Crown Act. Thus, in this case, Ontario's liability, if any, must derive from actionable negligence of specific COs.
[35] I do not agree that the trial judge failed to apply the just-stated principle of vicarious liability to the facts of this case. He did not, as Ontario asserts, dispositively conflate the concepts of direct and vicarious liability. Ontario relies on various comments in the trial judge's reasons to illustrate this point. However, even if a generous reading of the referenced comments could allow for such an interpretation, when the trial judge's reasons are read as a whole -- which they must be -- it is beyond question that he applied the correct legal principles and did not hold Ontario directly liable.
[36] The trial judge did not, as Ontario claims, hold that institution-level conduct -- information gathering and sharing at the institutional level -- could ground liability. Rather, he considered the inter-institutional knowledge and sharing of information about Riley within the government in support of his conclusion that Aspiotis knew or ought to have known of the threat posed to Walters.
[37] Any liability of Ontario flowing from these facts flowed through the negligence of a specific CO, Aspiotis, in housing Walters with Riley. In his testimony, Aspiotis stated that he was indeed the CO that made this housing decision. The trial judge made no reviewable error in this part of his analysis.
(b) Policy Decisions
[38] The Supreme Court of Canada has held a public authority generally should be liable when the authority's employees or agents are negligent in carrying out prescribed duties: R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45, [2011] S.C.J. No. 42, 2011 SCC 42, at para. 72. Furthermore, corrections officials generally owe a duty of care to inmates under their supervision: Timm, at p. 178 Ex. C.R.; MacLean, at p. 7 S.C.R. However, "core" or "true" public policy decisions are non-justiciable as long as they are "neither irrational nor taken in bad faith", so an employee or agent of a public authority owes no common law duty of care in making such a decision: Imperial Tobacco, at para. 90. At trial, Ontario argued that the decision to put Walters in the unit with Riley was not reviewable by the court because the decision was reasonable and based on a "true" policy decision.
[39] On appeal, Ontario maintains this argument, and adds that the trial judge improperly impugned the surveillance set-up in the unit when he found, at paras. 62-66 of his reasons, that the wall in front of the shower area, to which Walters' assailants dragged him, and the distance of that area from the control desk, created "[an] opportunity for a sustained assault of some duration".
[40] Ontario's first argument assumes an interpretation of the STG policy as requiring not only that the COs place members of the same gang in different units, but also as excluding liability for the placement of members of rival gangs in the same unit, at least when those inmates' OTIS cards did not include non-association alerts. In support of this argument, Ontario adduced evidence that the policy contemplated the placement of members of rival gangs within the same unit.
[41] However, Ontario did not adduce evidence that the policy directed COs not to consider inmate incompatibility beyond any information on the relevant inmates' OTIS cards. Also, there was no evidence suggesting that to require COs to take account of inmate incompatibility, as well as "numeric balancing", when assigning inmate housing would constitute the kind of "weighing of social, economic and political considerations" that is the responsibility of the executive and the legislature rather than the judiciary: Imperial Tobacco, at para. 87. Therefore, the trial judge's finding that Aspiotis should have considered Walters' incompatibility with Riley was not inconsistent with the policy's immunity.
[42] I also reject Ontario's argument concerning the trial judge's comments on the unit's layout, which Ontario says was itself a matter of policy. This was not a finding of liability for the configuration or layout of the unit, which was arguably a question of policy; rather, the trial judge made these comments merely to emphasize the importance of housing incompatible inmates in separate units, so that there would be a lower risk that such inmates would harm each other.
[43] For these reasons, I would not give effect to this ground of appeal. I will now turn to addressing Ontario's complaints in connection with the standard of care.
Issue 2: Did the Trial Judge Make Any Reviewable Errors in His Application of the Relevant Standard of Care to the Don Jail's Corrections Officials?
[44] Ontario submits that the trial judge committed errors in holding that, based on the facts found in the pre-trial rulings in Riley's prosecution, Aspiotis should have foreseen that housing Walters with Riley would expose Walters to a serious risk of harm. The nature of the alleged errors will become more defined in my analysis below.
[45] As I will explain, I would not give effect to this ground of appeal.
(a) Pre-trial Rulings
[46] To better understand the issue involving pre-trial rulings, it will be helpful if I provide some brief background.
[47] In a post-hearing e-mail to counsel, the trial judge indicated that he had reviewed the parties' agreed statement of facts, as well as several rulings from Riley's prosecution to which the statement referred. He wrote that he was persuaded that the facts concerning security measures in these rulings probably would have come to the attention of the Don Jail's COs and he asked the parties what moment he could make of these facts.
[48] Ontario responded, submitting that knowledge of the facts could not be attributed to the Don Jail's COs because the rulings were not publicly available. The respondents' answer was that the existence of the publication ban did not mean that participants in the justice system would not have disseminated the information about the security threat so as to implement the orders made by the presiding judge. The trial judge agreed with the respondents' position and proceeded to rely on the facts from the pre-trial rulings, particularly those found in R. v. Riley, [2008] O.J. No. 2116 (S.C.J.).
[49] As I mentioned earlier, the trial judge's conclusion that the Don Jail's COs ought to have known of the risk of harm to Walters from Riley relied on the extraordinary security measures taken for Riley's court appearances and the general awareness within the justice system of Riley's propensity for violence. The trial judge stated, at para. 57, that the factual findings in Riley's pre-trial Canadian Charter of Rights and Freedoms application decision made clear that:
the Defendant, in its capacity as justice system participant, warden of the Don Jail, and a division of Her Majesty the Queen in Right of Ontario, knew or ought to have known of the extraordinary security measures undertaken during Riley's preliminary inquiry and in preparation for his trial.
(Emphasis in original)
[50] Ontario now argues that the trial judge engaged in an improper independent judicial inquiry by reading the pre-trial Charter ruling in Riley to determine what knowledge of Riley could be attributed to Aspiotis. Ontario contends that the ruling was not part of the trial record and was subject to a publication ban until after the assault on Walters occurred. It was, Ontario says, improper to re-open the record after the trial hearing of Walters' civil claim in order to include the facts found in Riley's pre-trial Charter ruling.
[51] In my view, even if the facts found in Riley were inadmissible in the present case -- which, to be clear, I am not deciding -- Aspiotis had already given evidence that he knew, before he placed Walters, that Riley was dangerous and was charged with attempted murder of a member of the Malvern Crew. Aspiotis said that he was not immune to news reports of Riley's prosecution, that he knew that Riley was escorted to and from the Don Jail by the Emergency Task Force, and that the admitting and discharge manager at the Don Jail had good reason to pay special attention to Riley.
[52] Other evidence supported a conclusion that Aspiotis should have known that Riley was an unusually dangerous inmate. The parties' supplementary agreed statement of facts stipulates that from February 19, 2008 to November 19, 2008 -- the date of the assault -- Riley attended court for trial on 60 occasions. On one occasion, Riley had assaulted one of his fellow Galloway Boyz "right in front of the admin and discharge staff". Furthermore, from his arrival at the Don Jail until Walters' assault, Riley had been cited for 20 incidents of misconduct, with five of those involving violence or the threat of violence.
[53] Given that Aspiotis would have had special knowledge of Riley, the trial judge's finding that the placement of Walters and Riley in the same unit was negligent follows and was equally supported by the evidence. Walters' OTIS card identified him as a member of the Malvern Crew. There was an admission by a senior corrections official during his examination-in-chief that, if an admitting and discharge officer were aware of "any believed or perceived conflict" between a new inmate and an inmate already on the relevant range, that officer would not place the new inmate on that range.
[54] The evidence was that, while considering the placement of a new inmate, Aspiotis would have had a copy of the STG list. When he interviewed Walters for admission, Aspiotis asked him the standard questions, but did not ask whether he should separate Walters from any other gangs generally or from the Galloway Boyz specifically. Also, Walters' OTIS card indicated that he previously had spent time in protective custody, but Aspiotis did not ask him about the reasons for that experience.
[55] Given the information that Aspiotis obtained concerning Walters, as well as what he knew about Riley, he should have known not to place them in the same unit. The trial judge found that Aspiotis had failed to consider whether Walters had any "inmate compatibility" issues beyond checking Walters' OTIS card. The trial judge also found that the layout of the unit, which created an opportunity for "a sustained assault of some duration", augmented the importance of checking for inmate incompatibility when admitting a new inmate.
[56] The trial judge's finding that Aspiotis breached the standard of care had a sufficient evidentiary basis, even without the findings in the Riley ruling. Compliance with the standard of care is a question of mixed law and fact. The trial judge's finding that Aspiotis should have known not to place Walters in the same unit as Riley does not disclose a "palpable and overriding error" that would justify this court's intervention: Housen, at paras. 29-37.
[57] I will now turn to the final issue in this appeal, causation.
Issue 3: Was the Trial Judge Unreasonable in Concluding That the Negligence of the Corrections Officials Caused Walters' Injuries?
[58] The trial judge's finding that the assault on Walters was motivated by gang hostilities was based on the following evidence:
The description of Walters' attacker given to police officer Angelo Xinos by ex-inmate Lonny Pearson, namely, a black man of muscular or athletic build, which matched the description given by Aspiotis in his evidence.
Pearson stated to Xinos that the attacker had just come back from court, which is a descriptor that fit Riley.
Pearson told Xinos that the attacker came out of cell 10, which was Riley's cell.
Xinos' notes stated that the assault was gang-related and that the suspects were members of the Galloway Boyz. These notes were taken before he heard Pearson's account and corroborated that statement.
[59] Ontario claims that the trial judge made two errors in concluding that the negligence of the Don Jail's COs in housing Walters and Riley together caused Walters' injuries. First, Ontario says the trial judge's reliance on Pearson's statement to Xinos was in error because it was a prior inconsistent statement that was never put into evidence for the truth of its contents. Furthermore, Ontario argues that he improperly reconciled inconsistencies in Pearson's evidence -- including Pearson's failure to pick Riley out of an identification lineup -- by relying on the "con-code" (the purported understanding among inmates that they should not "rat" on each other because fellow inmates might take retribution for inculpatory testimony).
[60] Second, Ontario asserts that the trial judge erred when he relied on Xinos' notes to find that the assault on Walters was motivated by gang hostilities. According to Ontario, Xinos' notes, which stated that the assault was gang-related, were copied from an occurrence report that he did not independently verify. The notes, therefore, contain inadmissible hearsay.
[61] I would reject Ontario's submissions; the trial judge did not commit either error in my view.
[62] Although there were inconsistencies in Pearson's testimony, he adopted the very statements on which the trial judge relied in making his findings on the identity of Walters' assailant. At para. 75 of his reasons, the trial judge accepted that Pearson's evidence contained some "prevarication", but he was satisfied that "the evidence that was recorded in the original interview was consistent with that portion of his trial evidence that I accept". Therefore, this is not a case of using hearsay, in the form of a prior statement, for the truth of its contents. The prior statements recorded by Xinos indicated that, according to Pearson, the assailant was a black man of athletic build who had been in court earlier that day and had come out of cell 10. In his trial testimony, Pearson agreed that the assailant was a black man of athletic build who had been in court earlier that day and had come out of cell 10.
[63] There was no impropriety in the trial judge's discussion of the "con-code". The menacing effects of the "con-code" on an inmate's testimony are routinely noted in the case law to deal with inconsistencies affecting a witness' credibility: see, e.g., Coumont v. Canada (Correctional Service), [1994] F.C.J. No. 655, 77 F.T.R. 253 (T.D.), at paras. 6-9; Squires v. Canada (Attorney General), [2002] N.B.J. No. 330, 2002 NBQB 309, 253 N.B.R. 236, at para. 79; Miclash v. Canada, 2003 FCT 113, [2003] F.C.J. No. 155, 227 F.T.R. 116 (T.D.), at paras. 38-41; McLellan v. Canada (Attorney General), [2005] A.J. No. 784, 2005 ABQB 486, 382 A.R. 287, at paras. 19-25. I can find no reason why the trial judge was not entitled to take this factor into account when assessing Pearson's credibility. In any case, the trial judge noted how Xinos' notes corroborated Pearson's testimony, which would mitigate any damage caused by the effects of the "con-code". Moreover, Pearson was not inconsistent on the specific statements on which the trial judge relied to make his causation findings.
[64] Furthermore, the trial judge found that the notes made by Xinos that corroborated Pearson's testimony, and further implicated Riley in the assault on Walters, were not copied from the occurrence report. As the trial judge put it, at para. 73, they derived from "observations which [Xinos] made on his arrival at the Don and before the commencement of his interview of Pearson". The notes on these points, therefore, did not contain inadmissible hearsay.
[65] Finally, the trial judge rejected Ontario's submission about the lack of pre-indicators of violence between Riley and members of the Malvern Crew. The trial judge stated, at para. 76, that he was not "in a position to understand Riley's psyche in November 2008, at a time when he was near or close to the commencement of a trial for very serious offences which, undoubtedly, he knew would carry with them a life sentence upon conviction, with limited rights to parole".
[66] For these reasons, I would reject this ground of appeal. Absent the errors complained of, the trial judge's conclusions are entitled to deference.
Disposition
[67] For all the reasons set out herein, I would dismiss the appeal. I would award the respondents their costs of the appeal in the agreed upon amount of $35,000, inclusive of disbursements and HST.
Appeal dismissed.
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