ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 5697/2011

DATE: 2018/10/31

BETWEEN:

Jesse-Lee Henebry, Marcia Dawn Bryson, Zackariah Henebry, Michael Antonucci, and Sharon Antonucci

Plaintiffs

– and –

Her Majesty the Queen in right of Ontario, Mike Heber

Defendants

Kevin Egan, for the Plaintiffs

Ann Christian-Brown & Sarah Pottle for the Defendant Her Majesty the Queen

HEARD: October 10, 11, 12, 13, 16, 17, 18, 19, 23, 24, 27, 30, 31; November 1, 2, 3, 6, 29, 30; December 1, 2017; and January 23, 24, 25, 26, 29, 31 2018; Closing submissions in writing

GEORGE J.

BACKGROUND

[1] The Plaintiff Jesse Henebry (Jesse) was arrested by the London Police Service on November 16, 2009 for criminal charges that were later withdrawn. He was 19 years old and had no prior record. After arrest, the police chose not to exercise its discretion and release him, and the Crown did not consent to a form of bail. As a result, and after scheduling a show cause hearing for November 20, 2009, Jesse was remanded into custody and held at the Elgin Middlesex Detention Center (EMDC). The warrant required that he be kept “safely”.

[2] Crucial to understanding this case is to know what occurred in the months before Jesse’s arrest. In October 2008, Jesse moved out of his mother’s home and began residing with his friend Adam Nicholson (Adam). On July 7, 2009 – approximately four months before his admission to EMDC – Jesse was the victim of a home invasion. As he exited the bathroom he was confronted by the Defendant Mike Heber (Heber). While not friends, he was familiar with Heber and knew him as an acquaintance of Adam.

[3] Jesse, at gunpoint, was forced to the floor and tied up. He was kicked and stomped on. Some of his items were stolen. During this encounter Heber discharged a sawed-off shotgun into the ceiling and threatened to kill Jesse if he called the authorities. The police were called. An investigation ensued, and Heber was ultimately charged.

[4] On July 23, 2009 Heber was arrested for this offence and admitted to EMDC. The warrant authorizing Heber’s arrest listed the Criminal Code sections under which he was charged, including robbery using a firearm, and unlawful confinement. Heber’s remand warrant contained a notice to the jail that he was prohibited from associating or communicating directly or indirectly with Jesse. The Crown admits that EMDC staff did not properly enter this non-communication term into the Offender Tracking Information System (OTIS).

[5] Not only did EMDC staff fail to enter this information into OTIS, but when Heber was admitted they failed to record the non-communication term on his Unit Notification Card which would have accompanied him and remained at his assigned Unit.

[6] These two steps – both the entry into the database, and the Unit Notification Card – are designed to protect inmates by keeping those who are incompatible apart. There was a failure in both respects. Upon Jesse’s admission he was placed into Unit 5 Left which is where Heber was lodged.

[7] Jesse was assaulted by Heber and other unknown inmates. Injuries were sustained. I will detail Jesse’s testimony shortly, but he says he was assaulted on two separate occasions and threatened and harassed by inmates. He testified that during security checks, Corrections Officers (COs) did not detect the incident or his injuries; that he was laughed at and taunted by staff who called him a “rat”; that he was, after his attendance at the hospital, placed in a segregation cell with no bed or running water; that he needed to be hospitalized a second time because of a head injury sustained in the cell; and that he was forced to sweep out a segregation cell to avoid being placed back in the general population.

[8] He claims to have suffered, not just physical injury, but debilitating and permanent psychological injuries.

PARTIES POSITIONS

[9] Jesse brings this action against the Crown and Heber seeking general, special, punitive, aggravated, and/or exemplary damages. He also seeks a declaration that his rights under ss. 7 and 12 of the Canadian Charter of Rights and Freedoms were violated, as well as a remedy under s. 24(1).

[10] The Plaintiffs Marcia Bryson (Marcia), Zackariah Henebry (Zack), Michael Antonucci, and Sharon Antonucci (collectively “FLA claimants”) each seek damages pursuant to the Family Law Act. They claim that their close relationship with Jesse has been irreparably damaged. Marcia is Jesse’s mother; Zack his brother; and Michael and Sharon his maternal grandparents.

[11] Heber did not file a statement of defence and did not participate at trial. He is deemed to have admitted the facts set out in the claim. The Crown defends this action, pleading a complete denial of most allegations. It initially took the position that none of the Plaintiffs are entitled to relief. However, at the trial’s outset, the Crown admitted that Heber did in fact assault Jesse and that it was liable in negligence for placing Jesse and Heber together in the same unit.

[12] This partial admission of liability is for - what it describes as - the inadvertent error of not properly inputting into the OTIS system the information from Heber’s remand warrant. It is worth noting that, on the day after Heber’s admission, EMDC staff did enter into the OTIS system Heber’s restrictions, but they did not enter it into the non-association screen which would have generated a “pop up” alert upon Jesse’s admission. This, it acknowledges, would have flagged to other staff that Heber was not permitted to communicate with Jesse.

[13] Jesse seeks to ground liability in not just the OTIS error, but in other conduct including inadequate range supervision, and the failure to ensure he was properly treated after sustaining his injuries.

[14] The Crown seeks to limit liability to the mistake made at Heber’s admission. In its view, adjudicating and making findings in respect of other negligent acts is of no consequence. These allegations, it argues, have been rendered moot as the legal test for general, special, and Family Law Act damages make no distinction between single and multiple findings of negligence.

[15] The Crown also pleads contributory negligence alleging that Jesse had the opportunity to notify the COs supervising his unit about his history with Heber.

[16] Furthermore, the Crown takes the view that some of the evidence presented is relevant only to non-justiciable issues, including the documents and testimony that speak to policy decisions and explore the issue of resource allocation. It also contends that the categories of damages being claimed are not supported by the evidence or are grossly excessive.

ISSUES

[17] The issues raised include the scope of Crown liability and, more significantly, the amount of damages.

PLAINTIFF’S EVIDENCE

Jesse Henebry

Personal Circumstances Prior to Arrest

[18] Jesse was 19 years old at the time of his arrest and detention. Before then he described his relationships with his mother, brother, and grandparents as extremely close. He was then and had always been reliant on his mother. They were confidants and had a closeness that was forged in the fact his father was not a part of their lives. There is a 3-year age difference between Jesse and Zack. Though Jesse played a paternal role, he characterized his relationship with Zack as a friendship. They hung out together, camped together, and lived together after leaving the nest.

[19] Before EMDC, Jesse was outgoing, socially active, and had a large group of friends.

[20] He spoke about his relationship with Adam, who testified on behalf of the Crown. While they attended elementary school together they grew closer during the latter stages of high school. At the time of Heber’s home invasion they lived together in a home owned by Adam’s father.

[21] Jesse had not then finished high school. He has since obtained the one credit required for graduation, which he completed by correspondence in 2017.

[22] Jesse held several jobs before his arrest. He sold newspaper subscriptions door to door. He worked as a rock-climbing instructor and for a cabinet making company (GNS), first as a co-op student and then as a paid employee. In 2007, at the end of his tenure at GNS, he fell and sustained injuries leading to a WHSIB claim. He was employed for a short while in lawn care and for a summer at an aluminum company. In the months before the home invasion, he received welfare benefits. After the home invasion, and before his admission to EMDC, Jesse worked briefly at an automotive sticker plant.

[23] He spoke at length about his pre-EMDC health issues. He twice broke his arm, once when he was either 6 or 7 and again when he was in grade 10. He healed and there were no ongoing complications. He was diagnosed with childhood cancer (a tumour in his jaw), which he overcame.

[24] Jesse acknowledged that, during his adolescence, he used marijuana and occasionally opiates. He was an avid concert goer and skilled rock climber.

[25] Notes from his doctor reveal that, in 2008, he was having trouble sleeping and would often wake in the night sweating profusely. While not confirmed, this was initially thought to be a thyroid condition. He eventually began to sleep better, and the sweating problem ceased.

Heber Home Invasion

[26] Jesse testified about the home invasion. On the night in question he and Adam were at the residence hanging out. At some point Adam left. After that, and upon Jesse exiting the bathroom, he was confronted by Heber who entered the home without permission. Heber retrieved a shot gun from behind a nearby shelf, pointed it at Jesse, and directed him to the ground. Other individuals, all unknown to Jesse, then joined Heber in the residence. Using rope, they tied Jesse’s feet together and searched the home for valuables. Jesse testified that the gun was pointed directly in his face. After being kicked in the head Jesse briefly lost consciousness. When Adam returned, Heber was still there. After a brief struggle Heber discharged his gun into the ceiling. He eventually left after warning Jesse and Adam to not call the police.

[27] Jesse did call the authorities and provided a statement identifying Heber as the assailant. Heber was arrested on July 23, 2009. He was detained at EMDC where he remained until Jesse’s admission. Jesse testified that the police did not update him about their investigation and did not advise him about Heber’s arrest or place of detention.

[28] Physical injuries from the home invasion included a sore shoulder and scrape on his nose.

EMDC

[29] Jesse testified about the events leading to his arrest and detention at EMDC. On November 16, 2009 he was with Adam in a vehicle driven by Adam’s brother Lincoln. I am told that Lincoln, while Jesse and Adam remained in the vehicle, entered a residence and stole items. The vehicle was later pulled over by the police resulting in all three being arrested and charged with theft, break and enter, and possession of burglary tools. Jesse claims to have played no role in the theft and denies having any knowledge about what Lincoln was doing. All charges against Jesse were eventually withdrawn.

[30] Jesse was held overnight at the local OPP detachment before being taken to court the following morning. On November 17th the Crown did not consent to Jesse’s release and the earliest bail hearing date he could secure was November 20th. He was held at EMDC during this adjournment period.

[31] This was Jesse’s first experience at a correctional facility. He testified to being scared and nervous. His fear was largely of the unknown. Jesse is approximately 5 feet 9 inches tall and at the time weighed about 144 pounds. During the admitting process he says that a CO joked about his diminutive stature which made him feel even more uneasy.

[32] Jesse was taken to his assigned unit after answering the admitting officer’s questions. He was provided sheets and a towel.

[33] During examination in chief, Jesse was presented with an ‘Admission Checklist’. He did not recall being asked some of the questions noted on the list but did recall being asked if this was his first time incarcerated and whether he had suicidal thoughts. He was listed as a remand prisoner upon admittance. He testified that, during the walk from the admitting unit to his cell, one of the escorting officers advised him that he should follow the other inmate rules because if he didn’t he could expect “problems”.

[34] He testified that, upon entry into the unit, he did not see Heber until he was confronted by him and others in the washroom. This is significant given the Crown’s contention that Jesse ought to have notified the guards about his history with Heber.

[35] He initially sat at one of the metal tables on the range at which point several inmates (not including Heber) told him he had to shower. Jesse did as instructed and entered the washroom where he first noticed Heber. He was shoved and backed into a corner. Jesse pleaded with Heber to leave him alone and told him he had not called the police on him. Heber called Jesse a “rat” and, along with at least 3 other inmates, assaulted him. Jesse says he yelled for help and that no one came to his assistance.

[36] Jesse was punched, kicked, and kneed. He was bleeding, bruised, and experienced soreness on his jaw. His mouth was swollen, and a tooth pierced his lip. One eye started to swell, and he later learned that he suffered fractures to his nose, cheek, jaw, and orbital bone.

[37] After the beating Jesse was forced to remove his clothing and, as initially instructed, he showered. He was then directed to dress and join the other inmates back at the metal tables. Jesse testified that at no point during this episode did COs appear. He says that while sitting at the table Heber instructed him to advise his lawyer that he was mistaken about his identity and that he had not entered his home and robbed him. During this discussion Jesse says he was fighting to remain conscious. He testified to “fading, drifting in and out, and to feeling weak and nauseous”.

[38] Jesse says he seized an opportunity to run towards the exit and bang on the door. Again, no CO responded. He described being grabbed by one of the inmates who said something to the effect of; “Where are you going…you are staying here as you are a rat”. He was dragged back towards the table. One of the inmates began kicking him again until a CO finally came to the door. While the CO stood at or near the door area, Jesse pushed another inmate out of the way and ran towards him.

[39] Jesse recalled that two COs then entered the range. He says one of them joked about his appearance. Jesse did not then advise them of his history with Heber, explaining that he was unsure whether he would have to remain in that unit. He was eventually removed from the area, after which guards joked with each other - in Jesse’s presence - about what he must have done to warrant that treatment.

[40] Jesse does not know how long the assault lasted. He does not recall Heber leaving the range, although the logs seem to confirm that Heber did leave for a haircut. The logs also indicate that a CO conducted a security check during this time. Jesse surmises that Heber must have been escorted out at some point while he was sitting at the metal tables, which would have been after the first assault. Jesse’s best guess is that he was at the tables - at times drifting close to unconsciousness - for about a half hour before breaking for the door.

[41] Jesse was eventually taken to the health unit. He recalls the two COs who escorted him to the infirmary “snickering” and commenting on how “ridiculous” it was that they had to take him for treatment.

[42] While in the health unit Jesse recalled a nurse saying that he needed to go to the hospital. He overheard a CO ask the nurse whether he could just be “stitched up” there in order to avoid a hospital transport. He does not remember being seen by a doctor at EMDC.

[43] Jesse was transported to the hospital in an ambulance. A CO and a medic accompanied him in the rear. En route to the hospital, and during the return, Jesse overheard jokes about him being a “rat”. At the hospital, he overheard one CO say, “snitches get stitches”. He does not know these officers’ names and cannot identify them.

[44] Jesse received six stitches. He had very little interaction with medical staff. He spent most of the time at the hospital on a bed with a CO sitting beside him, and another coming in and out of the room. He believes he was there for a few hours. He recalls a conversation with a CO about whether he would again be placed on a range with Heber. Jesse says the COs response was to laugh and say, “so you are a snitch”.

[45] In the early morning hours of November 18th, he was led from the hospital in handcuffs and returned to EMDC, where he was lodged in segregation. He believes he was placed in segregation cell #1 which he described as small in size. It contained an inch-thick mattress on the floor, a toilet that didn’t flush, and no running water. There was a steel door with a small window looking into the hallway.

[46] Jesse testified that the next time he recalled speaking to anyone was on November 19th when breakfast was delivered to him. He has no memory of November 18th. On the 19th he advised the CO who delivered his breakfast that he had not yet had the opportunity to speak with his family and that they wouldn’t know where he was.

[47] Upon discharge from the hospital he does not recall being given any direction with respect to ongoing treatment or monitoring of his injuries. He did not overhear any such direction being provided to EMDC staff. He has no memory of anyone attempting to wake him on the 18th, which was odd given he had a head injury.

[48] His next memory is waking up, again in the hospital, on the 19th. He does not remember what happened in his segregation cell or how he got to the hospital. He was told that he had vomited in his cell and was found unconscious. His brother and mother were there with him. Jesse does not recall the specific treatment he received on this second hospital visit other than being hooked to an IV. He was eventually released and transported back to EMDC. Again, no discharge instructions were given to him nor was he aware of any such instructions being given to his escorts.

[49] Upon his return to EMDC he was placed in a different segregation cell. He says a white shirted officer attended in his cell and advised that they needed it for another inmate and that he was going to be placed back into the general population. Jesse says he pleaded with the officer to not move him, advising that he had no record and had never before been in jail. The officer allowed Jesse to stay in the segregation cell so long as he cleaned it. Jesse testified that this was a difficult task, given his injuries, but that it was a far better option than having to return to general population.

[50] On November 20th Jesse attended court and was released on bail.

Post EMDC – Injuries & Lifestyle

[51] Shortly after release, Jesse met with his family doctor. He complained of soreness, trouble eating and ruminating about his time in jail.

[52] Jesse says he began to do bizarre things like put his mattress in the closet. He described having difficulty falling asleep. He was having night sweats and bad dreams. He testified that what weighed on him most heavily, in the early days after release, were the outstanding charges and possibility of returning to EMDC.

[53] Jesse had trouble concentrating; felt nervous whenever in public; and thought he could see Heber and EMDC guards everywhere he looked. He was nervous, scared, jumpy, and always looking over his shoulder.

[54] Jesse spoke earlier of his active life and large social network. After EMDC, he withdrew from family and friends and did not want to go out in public. While he attempted to return to normalcy he - for the most part - stayed inside, managing to go out periodically but only at the insistence and encouragement of others.

[55] After EMDC, Jesse had difficulty engaging in his usual activities. He felt “distressed”, “mentally exhausted”, could not work, and had trouble maintaining his relationships.

[56] He compared his pre and post-EMDC drug use. Before his incarceration, he used marijuana and experimented with harsher substances. Afterwards, he says he leaned more heavily on drugs, including opiates, as an escape. He described a progression – noting that it got worse as time passed. Jesse testified to becoming easily agitated and quick to anger, which was out of character.

[57] As he approached the first anniversary of his incarceration, Jesse’s nightmares increased, and his flashbacks became more prevalent. This, he says, intensified his “stress and depression”. He began to experience tinnitus.

[58] In 2010 he was charged with a breach of his recognizance and spent four days in custody before release. He was pressed on how this runs contrary to him holding a fear of returning to custody. In other words, if what he says is true, how could he be so careless? He explained that his counsel, before arrest on the breach, advised him that the substantive charges against him were going to be withdrawn. He mistakenly took this to mean that his bail conditions were cancelled, not realizing that the Crown had to formally withdraw the charges in court. He acknowledged breaching but did not intend to as he was not aware the terms were still in effect.

[59] Jesse’s drug use continued to increase. He became addicted to hydromorphone. He initially crushed pills and sniffed the powder but this quickly escalated to intravenous use. He was in the throes of this addiction from mid-2010 until the point he began the methadone program in 2013.

[60] According to Jesse, EMDC caused lasting physical injuries. He continued to experience headaches and his jaw popped in and out.

[61] Jesse was in a long-term relationship with his partner Melissa Cashmore. What was initially a loving and supportive relationship deteriorated, according to Jesse, because of his inability to cope with the lasting psychological impacts of EMDC. This relationship was initially a reprieve for Jesse. Things went well for a while, but it did not last. Despite Melissa’s love and support, Jesse quickly slipped further into depression and became increasingly isolated. He says it got to the point that she was his only connection to the outside world. They lived together for a while, but Melissa left Jesse in March 2012.

[62] Jesse talked about his counselling efforts, including with therapist Wendy Lewis who he began seeing in mid-2012. Ms. Lewis is a psychotherapist employed by Jesse’s treating psychologist, Dr. MacDonald. Jesse says Ms. Lewis has helped him work through his feelings and was a significant source of encouragement.

[63] He spoke at length about the deterioration of his relationship with family and friends. He began to lash out at his mother, and generally pushed those close to him away. Jesse testified about his lack of motivation and inability to maintain himself and his home.

[64] There was a significant focus - in examination in chief, but particularly during cross-examination – on Jesse’s vast social media presence. Several briefs filed at trial contained his Facebook posts and private messages. The Crown contends that these post-EMDC messages and photographs reveals Jesse as happy, active and healthy. Within them Jesse is shown fishing, rock climbing, spending time with family and friends, camping, attending social events, and discussing video games and television programs.

[65] This issue was probed extensively and was the Crown’s main attack on Jesse’s testimony. The Facebook entries were used to both challenge his credibility and show that his injuries were overstated. He was painstakingly taken through each post and offered an opportunity to explain the inconsistencies between what appeared on Facebook and what he described in court.

[66] He, for the most part, offered the same explanation for each: That his online persona was a ruse. It was not real, but rather an attempt to hide from others the depths of his despair.

[67] The Crown’s cross-examination of Jesse was extremely thorough and detailed. While he was challenged on most aspects of his testimony, counsel intently focussed on the extent and cause of his psychological injuries.

[68] His pre-EMDC health was also explored at some depth, as were the physical injuries directly caused by the beating at EDMC. Jesse confirmed that no surgery was required; no metal plates or stabilizing wire were inserted into his jaw; he was not held in the hospital overnight; and no treatment was ever recommended or required from a neurologist, neuropsychologist, rheumatologist, orthopedist, or chronic pain specialist.

[69] Jesse acknowledged that the breakdown of his relationship with Melissa was difficult. He further acknowledged the nature and extent of his drug abuse. It was established that he discussed each of these two very significant events with those treating him. The Crown’s position is that - given the home invasion, pre-incident ailments, separation from his girlfriend, and drug abuse - it cannot be determined that Jesse’s experience at EMDC caused his injuries.

[70] As indicated, Jesse was taken through most of his post-incident Facebook posts and messages, the objective being to attack his credibility and cast doubt on the extent of his injuries. Given the volume, I am unable to address each individual post. Generally speaking, Jesse portrayed himself online as active, well-adjusted and with a large social circle. I will cite a few examples to show how, at least in the Crown’s view, this is at odds with both the substance and tenor of Jesse’s testimony which was to paint a picture of complete isolation and an inability to perform many of life’s most basic functions. The Facebook entries, and the weight I should attach to them, was a central question at this trial. It touched upon Jesse’s credibility and the reliability of Crown expert opinions. For instance, Dr. Curt West relied on them in his assessment of Jesse. More on this shortly.

[71] A video of Jesse rock climbing in July 2014 was entered into evidence. Jesse was questioned extensively on his experience in rock climbing and about the level of fitness, strength, and skill required to do what he is clearly shown doing on the video. It was suggested to him that this activity was inconsistent with what he would have me believe were his injuries. Jesse explained that there were good days when he was able to push himself, but that those were rare.

[72] He was presented with a series of Facebook photos and messages that show him outdoors, fishing, and discussing fishing, all during a time he claimed he couldn’t do much of anything, including basic housekeeping. He is confronted with a photograph taken shortly after he got a new tattoo. There are many others including those that capture him discussing social activities, movies and television shows. Jesse offered the same explanation throughout which was that, though he was struggling, he attempted to portray happiness and contentment. He was misleading people. In some instances, the posts were flat-out falsehoods, like when he would write that he was hung over from a night out with friends.

[73] The Crown did not merely attack the nature and extent of Jesse’s injuries, but – relying on several of his Facebook posts - questioned his motivation in pursuing this litigation. It was suggested to him that this action was his financial plan and that he was foregoing opportunities to find and maintain employment in furtherance of that plan. I won’t restate them in their entirety, but over the course of many posts he talks about how he expected a large settlement, citing specific sums that he believed he was receiving imminently. Jesse denied that any expectation of a settlement reduced his motivation, or that he has fabricated or exaggerated his injuries to obtain an award. He explained that, at several points post-incident, he attempted to find work, without success. He further explained the boasting to others of an anticipated recovery, as “stupid things he was saying to friends”.

[74] We learned that, during the relevant time, Jesse was not just using drugs but was cultivating and selling marijuana. The Crown’s purpose in covering this ground was to demonstrate that Jesse was fairly active in this endeavour all while, he claimed, he couldn’t undertake any activities or leave his home.

[75] Jesse acknowledged having a small grow operation in his apartment, from 2012 to 2013. He described it as him “growing a few plants”. He at times posted about “trimming bud” and “planting seeds”. He acknowledged occasionally selling marijuana to his brother’s friends.

FLA Plaintiff Marcia Bryson

[76] Marcia is Jesse’s mother. She is 47 years old. She was a single mother. She testified to being extremely close to Jesse describing him as “basically her best friend”. Her parents, Sharon and Michael Antonucci assisted in raising Jesse and Zack and share a close bond with him.

[77] She spoke of Jesse’s childhood and the difficult times they endured as a family. She described Jesse as a good son who, at times, acted as Zack’s father. She testified that Jesse always lent a helping hand around the house and that, at least before EMDC, he was an upbeat member of the family who enjoyed a busy social life.

[78] Marcia spoke of Jesse’s pre-EMDC health issues, including his cancer diagnosis. She made a point to say that none of those challenges changed his disposition in any dramatic way. He was always a “happy-go-lucky, enthusiastic kid”.

[79] She recalled Jesse leaving her home when he was 18 and moving in with Adam. They remained close. She detailed what she understood to be Jesse’s work history.

[80] Marcia learned that Jesse was in custody at EMDC on Wednesday November 18th when informed by a duty counsel lawyer at the court house. She was advised that Jesse’s bail hearing was scheduled for Friday of that week.

[81] On November 19th an EMDC sergeant contacted her and advised that Jesse had been taken to the hospital. It appears as if this was in regard to Jesse’s second attendance at the hospital and that no one had contacted her about the first. She and Zack attended the hospital. Jesse, to her, seemed “dazed and confused”. She observed him to be swollen, puffy and bruised.

[82] Her discussion with Jesse at the hospital centered on the incident and his interaction with the COs. Jesse told her that the guards called him a rat. When she expressed an interest in confronting them, he asked her not to.

[83] She next saw Jesse at court on the Friday, when he was released.

[84] After release the first order of business was to take Jesse to the doctor. He was told to rest. Follow up appointments were scheduled.

[85] She immediately noticed a change in Jesse. He seemed constantly stressed out and agitated. She observed him doing bizarre things like pulling his mattress into the closet and sleeping under his bed. She would hear him yell out in the middle of the night from nightmares.

[86] She recalled Jesse being able to work only for brief periods. She noticed that he was crying often and that his moods would dramatically shift. According to her, he lacked motivation.

[87] Marcia did not approve of Jesse’s relationship with Melissa. She believed that he was vulnerable and “latched onto somebody who just happened to come along at the right time”.

[88] Marcia noticed that Jesse was beginning to lash out at people and for no apparent reason. She says he would “fly off the handle”, something he never before did. Jesse was gradually withdrawing from his friends and family and showing less and less interest in family events, which were once so important to him.

[89] She attended some of Jesse’s doctor appointments. She believes that at some point Jesse was prescribed an anti-depressant. She observed a significant deterioration with his personal hygiene. She testified that Jesse stopped showering and shaving regularly. He was losing weight and beginning to look “gaunt and pasty”.

[90] Marcia testified that she noticed some improvements in Jesse after he began seeing a psychologist. She said: “I could tell he was trying more, trying to get out more and trying to do more things. It was helping him emotionally. I noticed a change in his demeanour. He started talking a little more and it seemed like he was trying to deal with his emotions”. Despite the improvements she maintained that he never returned to be the Jesse she knew before his time at EMDC and that he has failed to achieve his life goals, including marriage, having children, and establishing a career.

[91] Marcia advised that she saw no dramatic change in Jesse’s behaviour and demeanour after the home invasion, nor did she see any discernable difference after an incident in which Jesse was assaulted in June of 2012.

FLA Plaintiff Zack Henebry

[92] Zack is Jesse’s younger brother. They were raised in the same home and lived together, apart from their mother, after EMDC. He described how, throughout their childhood, Jesse acted in the stead of their absentee father. They camped, fished, played video games and skateboarded together. He described Jesse’s personality before EMDC in much the same way as their mother: socially active, outgoing and open with his family, only becoming angry and reclusive after the incident.

[93] He recalled the immediate aftermath of Jesse’s time at EMDC. He personally observed the mattress in the closet. He would overhear Jesse scream and talk in his sleep, something he had never heard before.

[94] Zack spoke of the arrangement that he had with Jesse when they lived together. He and Jesse split the rent and most bills. Zack says he did not then finish high school as he had to work. Jesse did not want to go out and interact with people. Melissa eventually moved in with them, helping Zack with the laundry and most of the household chores. However, when Melissa moved out, that responsibility fell almost entirely to him. He says it often appeared that he was Jesse’s only friend.

[95] Zack testified that while there was a gym in their apartment, Jesse – at best - rarely used it, and any indication otherwise on Jesse’s social media profile was an exaggeration.

[96] It was suggested to Zack that Jesse might be “pretending” to be depressed. He disagreed and indicated that Jesse has been depressed since EMDC, albeit with some better periods and modest improvements which, in his opinion, coincided with the beginning of Jesse’s psychological treatment.

FLA Plaintiffs Sharon and Michael Antonucci

[97] Sharon and Michael are Jesse’s maternal grandparents. Sharon testified about the family history and how she and her husband had to assist their daughter Marcia and grandchildren. It was difficult for Marcia as she was holding two jobs when her boys were young. On most weekends the boys would stay with Sharon and Michael. They also spent a lot of time with Michael fishing and camping.

[98] Each testified to Jesse being outgoing, social and approachable before EMDC, but that things dramatically changed afterwards. They described Jesse as emotionally withdrawn. Jesse’s attendance at family events steadily declined, to the point that he was not attending at all. Sharon testified that Jesse “is still not back to his normal self”.

[99] From 2009 until 2014, she says Jesse was completely withdrawn and detached from all those close to him. They did not see him much during this time. She recalls Jesse visiting them at some point in 2014 when Jesse caught a big fish. She believed this moment to be a turning point for Jesse, with some noticeable improvements in the following months. She is of the view that when Jesse is with them - fishing and taking walks - he is at peace.

Dr. Michael MacDonald

[100] Jesse was treated and assessed by Dr. Michael MacDonald, a Psychologist. I qualified Dr. MacDonald as an expert witness and permitted him to provide an opinion with respect to Jesse’s psychological condition. He prepared five reports (some co-authored with psychotherapist Wendy Lewis), including one in response to the report of defence expert Dr. West.

[101] He began treating Jesse in 2012, with the frequency of sessions increasing in 2014. He described the process employed in preparing his reports, indicating that much of the information he relied upon was obtained by Wendy Lewis.

[102] Dr. MacDonald described the components of trauma and how it relates to Jesse’s symptoms. He explained how he determined whether Jesse’s symptoms related to certain events. He advised that his evaluation required an understanding of the severity of the index event, whether there have been other intervening events, and how the subject (Jesse) perceived them. He acknowledged that trauma can be cumulative. He concluded that Jesse suffers from severe symptoms of post-traumatic stress disorder (PTSD) and depression.

[103] He believes Jesse’s presenting symptoms interfere with basic daily activities, have prevented him from leaving his home, obtaining and maintaining employment, and have impacted his capacity to feel safe. His opinion is that Jesse is severely and permanently impaired which he believes to be a result of the EMDC assault.

[104] In the early stages of Jesse’s treatment, while Dr. MacDonald felt Jesse’s prognosis was poor, he believed he was motivated to overcome the effects of the assault. He did not take much from the delay in Jesse seeking treatment. In his experience, people need to take that step in their own time. His view is that people should seek treatment only when they are ready for it, and that Jesse did so when he felt able.

[105] Dr. MacDonald viewed Jesse’s time at his grandparents’ home in 2014 (when he caught the fish) as positive and believes this seemingly mundane event gave him the strength and motivation to increase the frequency of his sessions and engage more meaningfully in treatment.

[106] Dr. MacDonald was aware of Jesse’s substance abuse. He described it as Jesse ‘self-medicating’ which is common for those who have suffered similar injuries. This led to a discussion about PTSD specifically and how it manifests itself in one’s life. For example, at its most basic level Jesse’s PTSD caused him to relieve the traumatic event through frequent and intrusive thoughts and images. According to Dr. MacDonald, this remains Jesse’s experience.

[107] He was adamant that Jesse was not malingering. He did not believe Jesse was in any way embellishing his symptoms. To the contrary, they were consistent and severe. He testified that those who do malinger are known to never acknowledge improvements (or at least be reluctant to do so) as this would undermine their agenda, which is to overemphasize symptoms and their impact. Dr. MacDonald never observed this reluctance in Jesse, nor does he believe Jesse overreacts to his condition.

[108] Dr. Macdonald learned of an incident when Jesse was arrested for shoplifting. Dr. MacDonald viewed this as, though unfortunate, not unusual for someone struggling with PTSD, which is known to prompt risk taking behaviour.

[109] Dr. MacDonald testified about the various techniques and coping strategies he taught Jesse, including breathing exercises.

[110] In 2015 Dr. MacDonald assessed Jesse to be, though highly motivated to overcome his impairments and effects of the assault, markedly impaired.

[111] Jesse was last assessed by Dr. MacDonald in 2017. His findings are set out in his report dated September 5, 2017. Another report was generated in August of 2017 but was largely a response to Dr. West. At the time of trial, Dr. MacDonald found Jesse to remain cooperative and motivated to continue his treatment plan. Dr. MacDonald is pleased with Jesse’s involvement in the methadone program and participation in yoga classes. He noted that Jesse is still having difficulty with social interaction, leaving his home, and with initiating and maintaining healthy relationships.

[112] Jesse reports feeling overwhelmed, depressed, and helpless. He claims to suffer from recurring memories and scattered thinking. Physical symptomatology includes shortness of breath, elevated heart rate, an overreaction to minor stressors, and some mild chronic pain. In Dr. MacDonald’s view, though Jesse is increasing his capacity to cope with depression and pain, he continues to meet the criteria for PTSD, and is at the chronic stage. The biggest challenge for Jesse, in Dr. MacDonald’s opinion, is how he reacts to triggers and the instability of progress, despite his motivation to get better.

[113] At trial Dr. MacDonald’s prognosis for Jesse was “guarded” to “very guarded”. His opinion is that Jesse is at a high risk of being unable to secure and maintain employment in the foreseeable future, and that he would likely only succeed in a highly structured vocational setting (i.e. working with his grandfather or in some other low stress environment).

[114] Dr. MacDonald is of the view that Jesse requires long term treatment. He testified that Jesse will never return to normal or be able to function as he did before EMDC.

[115] Dr. MacDonald conceded that he cannot conclusively state that Jesse’s symptoms are exclusively from the EMDC incident, only that it is a direct cause. He agreed that other events might have contributed. The Crown highlighted the fact that none of the other disclosed events (i.e. Heber’s home invasion) were mentioned in his report. Dr. MacDonald’s response was that, while everything else was considered, the “major event is EMDC”.

[116] He acknowledged that the home invasion, and related assault, would have likely caused psychological injuries and that Jesse could have anxiety as a result of both the home invasion and EMDC. However, he framed the home invasion as a precursor of EMDC and connected to the resulting trauma.

[117] Dr. MacDonald was not surprised to learn that Jesse sold marijuana at various points, or that he rock-climbed on one occasion. He elaborated on the import of Jesse’s drug use, advising that it was not a factor in the assessment of his psychological condition.

[118] He rejected the suggestion that validity measures and objective testing are akin to DNA testing and fingerprinting. He believes the only proper use of validity measures is to assist in identifying whether a patient is amplifying or minimizing a condition or symptoms. He disagrees that psychometric testing, standing alone, is good objective data. He argues that such testing must be done and considered together with the clinical judgments formulated over the course of time with a patient. In other words, no administered test or diagnostic tool should be solely relied upon or used in isolation.

Joy Wicks-Nicholls (Occupational Therapist)

[119] A vocational assessment was completed by occupational therapist Joy Wicks-Nicholls. Her findings are set out in a report dated June 30, 2016. She also prepared a response to the Future Care Needs and Costs Analysis of Barbara Baptise in August 2017. Both are in evidence.

[120] The purpose of a vocational assessment is to determine an individual’s interests, abilities, and skills in order identify that person’s strengths and career potential. The objective of this evaluation was to assist in identifying the type of work Jesse is suited for, taking into account his abilities and limitations. Ms. Wicks-Nicholls employed both non-standardized (interviews) and standardized (testing) techniques.

[121] She interviewed Jesse. She learned a great deal about his vocational history and achievement in school. She inquired about his injury history including those sustained at EMDC. She asked him about his future goals.

[122] Her general impression of Jesse was that he was willing to engage and seemed to understand the purpose of the evaluation.

[123] Ms. Wicks-Nicholls administered the following tests: The General Aptitude Test Battery (GATB), Wide Range Achievement Test (WRAT-4), and the Canadian Work Preference Inventory (CWPI). She explained the value and limitations of each test.

[124] With respect to the GATB results, she concluded that:

Overall, results suggest that formal short-term education or training may be suitable for Mr. Henebry. Given that achievement test results, possible slow test-taking, GATB result patterns, and known factors including time away from school and psychosocial influences may be impacting Mr. Henebry’s test results at this time, it is possible that with upgrading and improvement in psychosocial status, he may be able to consider diploma level education.

[125] His aptitude results fall within the low average to below average ranges, with the true score ranges moving into the average range.

[126] With respect to the WRAT-4 – which measures reading comprehension, spelling, and mathematics – Ms. Wicks-Nicholls concluded that:

While Mr. Henebry indicated that he was never identified as having particular learning difficulties and his results fall within the average range, based on his overall low grades in secondary school reflecting self-reported low effort, the time that has passed since he has been exposed to academic learning, and his post injury mood issues, a refresher course work is indicated to assist him in preparing for possible post-secondary study or job training. This would also provide opportunity to evaluate the presence of any learning difficulties or barriers, and guide decision-making regarding further education options.

[127] Ms. Wicks-Nicholls wrote this about the CWPI results:

Mr. Henebry’s strong preference for objective and innovative work suggests that the client would enjoy work which involves hands-on tasks with variety and novel opportunities. Secondary methodical interests may mean that he might also enjoy work environments where tasks are structured and orderly, according to a defined process.

[128] Ms. Wicks-Nicholls set out what she believes are Jesse’s barriers and strengths, including his low average to below average aptitude, and the limited career opportunities in the more remote areas of our province, which is his preferred location. She believes Jesse can upgrade, which would assist him in training “for a career that is suitable based on his post-injury physical and emotional status, and his current goals which have been impacted by the injury”.

[129] Based on his academic history and aptitude testing results, she indicates that it is “likely” that Jesse could engage in training geared to apprenticeship opportunities, and that he “may” be able to consider diploma level education. Given Jesse’s significant and ongoing psychosocial difficulties, expectations should be modest.

[130] She reports that Jesse is hesitant to pursue upgrading and further study, citing his desire to address his issues beforehand.

[131] Her recommendations are set out on pg. 7 of her report, and include:

• professional assistance (occupational therapist, vocational consultant, or psychologist) to review the report with him and explain the results and recommendations;

• vocational rehabilitation consultation assistance to explore other career options;

• educational planning (mentoring, peer tutoring, and appropriate technology to facilitate and assist in his return to school);

• numeracy upgrading and interest courses;

• undertaking a functional abilities evaluation;

• vision screening;

• the conduct of an in-home occupational therapy assessment;

• ongoing mental health support; and

• after obtaining employment, comprehensive orientation and on the job support.

[132] Cross-examination was largely to confirm that Ms. Wicks-Nicholls did not have access to Jesse’s Facebook records and that her assessment was based, to a significant degree, on Jesse’s self-reporting and information received from Dr. MacDonald and Ms. Lewis. The Crown highlighted that Jesse’s challenges in an academic setting, and his need to upgrade, predate his incarceration. In other words, the testing scores are consistent with his low academic achievement and not a product of EMDC.

Yvonne Pollard (Future Care Costs)

[133] Ms. Pollard is a Life Care planner whose experience in social work and rehabilitation spans 35 years. She reviewed and relied upon Jesse’s medical documentation, information obtained from Dr. MacDonald, and transcripts from discovery examinations to complete her future care needs assessment. Ms. Pollard was advised that Jesse’s prognosis for recovery is “poor” to “guarded”, his injuries permanent, and that he would not be able to achieve full recovery. She was informed by Dr. MacDonald’s assessment that Jesse functions at a “low level”, and that he would require practical assistance for the foreseeable future.

[134] The assessment sets out what are, in her view and based on the information she received, Jesse’s anticipated future care costs. These include:

• Medication Allowance – for depression, PTSD, chronic pain, sleep disturbance - $250 annually.

• Transportation – for taxi or paying others to drive him to appointments - $2,640 total.

• Transportation – for 5 years post valuation - $132 annually.

• Contingency (Homewood Health Centre/Addictions) – addiction counselling - $10,325 total.

• Occupational Therapy – assist Jesse in maintaining stability and functionality - $7,200 total.

• Rehab Support Worker/Coach – hands on support, community reintegration - $14,976 total.

• Rehab Support Worker/Coach – 1-year post valuation - $5,616 total.

• Rehab Support Worker/Coach – 2 years post valuation - $1,872 annually.

• Psychologist – as recommended by treating physician (for PTSD, depression) - $26,325 total.

• Psychologist – 4 to 5 years post valuation - $2,250 annually.

• Physiotherapy – for chronic pain - $350 total.

• Physiotherapy – one-year post valuation - $185 annually.

• YMCA Membership – for chronic pain - $702 annually.

• Attendant Care – oversee and assist with major life decisions (i.e. finances) - $48,230 total.

• Parenting Support (future consideration) – based on “likelihood” of parenthood - $46,800 total.

• Home Maintenance – heavy housekeeping/laundry - $9,750 total.

• Home Maintenance – housekeeping/laundry 5 years post valuation - $450 annually.

• Heavy Grocery Delivery - $84.40 annually.

[135] The items speak for themselves and their recommendation is based on information received from others. For instance, she was advised that Jesse would likely be unable to obtain his driver’s license (and transportation is necessary to keep appointments); that addiction treatment might be required given the potential for relapse; that Jesse wanted to be a father; and that Jesse is unable to lift heavy items. This is the basis for her costing.

[136] On cross-examination Ms. Pollard was challenged in several respects. First, it was established that she had not reviewed Jesse’s Facebook records. It was suggested that her report is deficient because she did not personally interview Jesse or others who would be familiar with the care needs she was assessing. She acknowledged that the best practice would have been to interview Jesse, but the fact she did not does not alter the factual underpinning of the sought-after costs. I tend to agree. It is my task to assess credibility and make findings of fact and if, at the end of the day, the evidence does not support the funding of a particular care cost then it will not form a part of my order. Ms. Pollard simply sets out that which might be helpful to Jesse, which is - of course - dependent on what I determine his needs are, and what I find to be the cause of his injuries

Karen Dalton (Economic Loss)

[137] Ms. Dalton was qualified as an expert and permitted to give an opinion in respect of economic loss. She prepared four reports – an Economic Loss report, an update to that report, a calculation of present value of future care costs, and a response to a letter received from Dilkes, Jeffery & Associates.

[138] She initially calculated losses based on two different scenarios. One that projected earning capacity assuming Jesse attained a high school diploma as of July 1, 2010 (scenario A); the other assuming Jesse attained a high school diploma as of July 1, 2010 and commenced college in September 2010 (scenario B).

[139] Based on information provided to her, Ms. Dalton understood the following:

• Jesse was employed as a factory labourer (through a placement agency) when the EMDC incident occurred;

• he was one credit short of achieving his high school diploma;

• post incident, he worked as a construction labourer from June to August 2010 and as a stock food distributor from October 2010 to January 2011;

• he has not worked since January 20, 2011;

• Jesse had worked as a labourer at various points pre-incident; and

• his date of birth is December 13, 1989.

[140] She calculated past loss, future loss, and set out the contingencies she applied. Under scenario A, and for the period July 1, 2010 to May 1, 2015, the past loss incurred by Jesse is $77,700. Under scenario B his past loss is $58,800. Under scenario A, for the same period, the adjusted present value of Jesse’s future loss (to his 67th birthday) is $1,534,100. Under scenario B future loss is calculated to be $1,824,000.

[141] Contingencies included an adjustment to the present value losses by a mortality factor. She assumed that, had Jesse not sustained his injuries, he would have worked to 67. An employment rate adjustment was applied to both past and future loss, which considers periods of unemployment or workforce non-participation.

[142] In a follow up report, Ms. Dalton calculated losses for the period July 1, 2010 to October 2, 2017. Under scenario A, past loss is calculated to be $175,500. Under scenario B, past loss is calculated to be $178,300. Under a third scenario (scenario C) - which is based on Jesse’s earning capacity as a factory or construction labourer – past loss is calculated to be between $168,700 and $212,900. With respect to the future, using the amended period and contingencies, Jesse’s loss is calculated under scenario A at $1,608,700, and under scenario B at $1,908,300. Under scenario C, which again is based on Jesse’s earning capacity as a factory or construction labourer, Jesse’s future loss is estimated to be between $863,200 and $1,078,300.

[143] Ms. Dalton also calculated the cumulative mortality adjusted present value of the future care costs detailed by Ms. Pollard. Based on her calculation, the adjusted present value of the future care costs is $314,630 which does not include parenting support costs. To include that cost would yield a value of $361,051.

[144] Cross-examination of Ms. Dalton confirmed that: First, past income loss must be reduced by the income Jesse actually earned during the relevant period. And second, that a future loss calculation should, if appropriate, include an off-set of projected earning capacity. That is, I should only use her figures if I determine Jesse is not and will not ever be able to work. If I determine he can, or will at some point in the future, be able to return to work the numbers would have to be reduced accordingly.

[145] Ms. Dalton acknowledged that the mortality rate she employed did not take into account Jesse’s history of drug use.

DEFENCE EVIDENCE

Correctional Officers

[146] I heard from several Ministry employees, including Tim McFadden who was an EMDC security manager whose duties included scheduling, training, shift supervision, and floor coordination.

[147] He spoke to the various classifications at EMDC in 2009, which included general population, protective custody, custody for those with special needs, females, and segregation. He testified about EMDC’s admitting and discharge practices, and governing policies. He described the OTIS client profile, Unit Notification Cards, and the assignment of tracking numbers.

[148] Mr. McFadden described the information typically obtained at admission, and what happens to the Unit Notification Card. He was shown the admission checklist used in 2009. He confirmed that, with respect to Jesse, none of the risk indicators were checked even though this was his first time in jail.

[149] He was asked about the various policies and standing orders that were in effect at the time. He testified that while staff are expected to follow them, they would often be confronted with challenges that made it difficult, including an ever-increasing jail population and greater demand for protective custody.

[150] He acknowledged that had the appropriate alert popped up at Jesse’s admission he would not have been placed with Heber. He described log notes, including when they are to be prepared and for what purpose. His attention was drawn to the documents that were to memorialize the monitoring, patrols, and security checks undertaken during Jesse’s time at EMDC. He was not personally involved in the events in question so could only speak to the policy and orders in place and to the procedures that should have been followed by COs.

[151] He explained the electronic recording device (BCS) that COs use during security checks. He testified about how these, when used properly, generate an activity report that confirm whether a CO actually patrolled and conducted the check.

[152] He described the special observation forms that are sometimes employed and was asked to review one that was completed for Jesse on November 18, 2009. It notes that breakfast was “offered and taken”. In the segregation log it is noted that all “appears ok” and that meals were issued.

[153] Despite attempts to learn this information, he could not identify which officers escorted Jesse to the hospital, other than to say that two COs would have. Also, he could not identify the officer who escorted Jesse to his unit after admission.

[154] He confirmed that an area for lower risk, first time offenders did not exist in 2009, though there was a standing order indicating that those prisoners were to be held separately. He described EMDC’s units which included cells, day areas, and guard stations. He confirmed that log books were to be maintained at each station.

[155] Mr. McFadden made these salient points:

• everyone who worked at EMDC would have received a copy of standing orders;

• employees were expected to follow all standing orders and ministry policies;

• the OTIS system is not meant to replace the documentation that should accompany an inmate to his unit (Unit Notification Card);

• in this case had the Unit Notification Card been properly completed it would have prevented the placement of Heber and Jesse together;

• there was a standing order that required inmates be classified and assigned units accordingly – it states that “it is imperative that offenders be properly classified when assigned to a living unit or moved between living units”;

• lower risk, first time offenders are to be housed separately;

• Heber had alerts that flagged him as a violent offender and that he required intensive supervision;

• it was known that Jesse was a first-time offender who had not yet been convicted of a crime;

• all inmates are considered “offenders” regardless of whether they are serving a sentence or on remand awaiting a bail hearing or trial;

• Jesse was not just improperly placed with Heber, he was not placed in a unit for first time offenders, which the standing order required;

• he was aware that inmates would make and enforce their own rules on the unit;

• he acknowledged that it was his responsibility to ensure COs properly completed the required paperwork, including special observation forms;

• he acknowledged that the November 18th form indicates that Jesse was not offered fresh air, lunch, dinner, or a shower;

• on November 18th Jesse spent the entire day in a segregation cell;

• he was the operational manager on November 18th, and was in charge of admitting and discharge the day Jesse arrived;

• he confirmed the existence of a standing order that required, during patrols, a visual inspection of all occupied cells and areas to ensure inmate safety;

• results of patrols should have been entered into the log book;

• inmate on inmate assaults are common and were in 2009;

• best practices were not followed in this case;

• the COs who escorted Jesse to the hospital should have recorded their names, when they provided the transport, and what they observed;

• Mr. McFadden was unable to locate a log book that recorded Jesse’s hospital trip;

• he described the BCS system that electronically records when security patrols are conducted;

• when a CO conducts a patrol, they are not just to wave the wand (that records the check) but are to look in the window of a cell and note what they observe; and

• he suggested that only unusual observations or events would be recorded, which appears to be inconsistent with the standing order.

[156] I also heard from COs Prestage, Rumble, Abraham, and MacDonald. Here are the significant points from their testimony:

• On November 17, 2009, CO Prestage was assigned to and worked in Unit 5. He was tasked with conducting security patrols, delivering meals, and ensuring that those inmates required in court were ready for transport. He described himself as the “inside” officer and that CO Rumble was the “outside” officer, meaning that he was to go inside the unit and speak directly to inmates while Rumble was responsible for maintaining the log book and controlling entry into the unit.

• Prestage testified that an inmate won’t be placed in a particular unit if they are reluctant to enter it, and that he had no recollection of Jesse expressing a concern to him (which was an odd thing to point out since he had no recollection of having any interaction with Jesse).

• Prestage reviewed the Unit 5 log book and advised that none of the signatures are his. He does not remember who conducted the security checks that day but concedes that as the “inside” officer it would have been his responsibility. He testified that when he does conduct a check, he walks around to see if anything looks unusual. He checks the inmates and looks in the shower area to ensure that all is okay. On cross-examination he conceded that a proper check would have discovered an inmate who was injured and bleeding from the face.

• CO Rumble testified that, while he was assigned to Unit 5 on November 17, 2009, he has no memory of the events in question. His testimony was basically an account of what he would have done in certain circumstances. He was able to confirm that COs could not actually see onto the unit from where they would typically sit, and that it can get quite noisy which makes it difficult to discern from where a particular sound is coming.

• Rumble described the layout of the range and sightlines. The view from the cage beside the office is restricted, and the view through the small window on the door is “distorted”.

• CO Abraham worked in segregation on November 18, 2009. He too does not remember much and relied largely on what he read in the notes and segregation logs. He described the particular cell Jesse was first placed in. While he could not remember conducting inmate checks during the relevant time he spoke to how he normally conducts them and what he looks for.

• Abraham testified that segregation cells are to be checked every 20 minutes, and that a proper check entails looking into the window and using the BCS wand to digitally record the visit. As his testimony progressed, his memory appeared to be somewhat refreshed, because he then recalled finding Jesse face down in his cell and vomit in the toilet.

• CO MacDonald worked in segregation with CO Abraham on November 19th. He did not recall any specific interaction with Jesse. He did not recall doing inmate checks on the 19th but said that “he must have”. He advised that when completing a special observation form he only notes things that are out of the ordinary. When shown the BCS activity report for that day – which clearly shows that some patrol checks were missed – he did not remember missing any. He surmised that some were missed because they were either “too busy” or that he (or his colleague) forgot the device when they began the patrol.

Adam Nicholson

[157] Adam Nicholson lived with Jesse at the time of the home invasion, was arrested with Jesse, and was admitted to EMDC at the same time.

[158] He recounted what led to their arrest on November 16th, blaming his brother for involving him and Jesse in his crime. He spoke about the EMDC admission process, recalling that he and Jesse were taken to different ranges: Adam to 5 Right, Jesse to 5 Left.

[159] He testified about conversations between himself and Jesse after their incarceration. He said that Jesse told him the guards placed him in a cage and that Heber noticed him immediately upon entering the range (which seems to be the basis of the Crown’s claim of contributory negligence). This was a most confusing part of Adam’s evidence, as this cage – what he called a “compatibility cage” – did not exist. This one point made it difficult to assess his evidence as a whole, as he seemed to be detached from reality, which cannot help but call into question all of his testimony.

[160] He recounted his conversations with Jesse about this litigation. He testified that Jesse told him he was “looking at a lot of money”.

[161] Adam said that he and Jesse were once best friends, and that they continued to communicate after EMDC. He recalled Jesse telling him about the nightmares he was having but not about him sleeping in his closet or under the bed, and that he never observed Jesse to be unkempt. After release, he described Jesse as “seeming fine” but that things did begin to change a couple of years later when Jesse’s relationship with him and other friends deteriorated.

[162] He knew Jesse’s girlfriend Melissa. This struck him as a good relationship and he thought Jesse, at that time, was well and happy. When that relationship ended Adam said Jesse went “downhill” quickly. He said Jesse seemed sad and upset.

[163] Before EMDC Adam and Jesse socialized and did outdoor activities together. He acknowledged that, after EMDC, they did not partake in outdoor activities as often. Adam did not seem to know much about Jesse’s drug addiction, describing his post-EMDC use as similar to what it was before. He does not know anything about Jesse growing or selling marijuana.

[164] In cross-examination Adam, while acknowledging his own intravenous drug use, insisted that he knew nothing of Jesse’s use of harder substances.

[165] When pressed on his initial contention that Jesse seemed fine after EMDC, Adam backtracked and said it was “hard to say” as he did not live with Jesse afterwards.

Dr. Curt West

[166] Psychologist Dr. West was retained by the Crown to provide an opinion. He interviewed Jesse once, and administered five tests. He offered this opinion, which is found at pgs. 16 and 17 of his report:

…notwithstanding the evidence of non-credible responding and significant symptom exaggeration, erring on the side of caution and to Mr. Henebry’s benefit, and considering the nature of the assault that he was the victim of both at home and again at EMDC, I do believe it is reasonable to presume that he may have experienced some psychological and/or emotional symptomology, sequelae and/or impairment as a result of the assault(s) which may [or may not] continue to have some degree of impact upon him today. As noted above, determining which specific assault or incident and to what degree or extent this is actually the case is very difficult given the presence and nature of the aforementioned non-credible responding and symptom exaggeration.

…with regards to possible symptoms of anxiety, given the documentation which I have reviewed, Mr. Henebry’s presentation and self-report during the current assessment, including his recounting of the assault at EMDC and his consequent response and level of functioning immediately thereafter and over the next few years afterwards, and the objective test results from the current assessment, notwithstanding the nature and magnitude of the aforementioned symptom exaggeration, I do believe it is reasonable to presume that he might still be experiencing some symptoms of anxiety, given that he reports feeling more vulnerable in certain social situations. Again however, I am unable to determine with any high degree of scientific certainty the ‘true’ nature or severity of these symptoms, or their possible impact, given the aforementioned problems with non-credible responding and symptom exaggeration. I would thus suggest that while Mr. Henebry does subjectively report some symptoms of posttraumatic stress at the present time, I am of the opinion that he does not meet full criteria for the diagnosis as per DSM-IV or DSM-5 at the present time

…I do not believe he is experiencing any clinically significant degree of mental health symptomatology, sequelae or impairment at the present time that would be reasonably expected to impact negatively upon any of the various common domains of function, those being social/leisure activities, activities of daily living, academic/educational functioning or occupation/employment activities.

[167] Dr. West had access to and appears to have relied heavily on Jesse’s Facebook records. He conceded that the use of one’s online social media persona was somewhat unusual in that there is no generally accepted approach or particular methodology to follow.

Dr. Bruce Empringham

[168] Dr. Bruce Empringham testified. He was permitted to give a mortality opinion for Jesse. He explained the underwriting process and how, in the insurance industry, people are assessed based on their own personal history and then grouped with others who have a similar mortality risk. He explained that risk is expressed at a baseline of 100% with additional mortality expressed as a “percentage extra”.

[169] He was advised that Jesse had depression and anxiety in 2008 which worsened after being assaulted in a home invasion in November 2009. He was advised that Jesse was subsequently assaulted in jail in 2009. He indicated in his report that “according to some of the medical (Dr. MacDonald) he remains with depression, PTSD and agoraphobia”. He was aware that Jesse was treated with methadone.

[170] Dr. Empringham was told about Jesse’s childhood cancer and his various bone fractures.

[171] His ultimate conclusion was that it would be reasonable, on account of Jesse’s history with narcotics, to add an additional +100 to his mortality risk (or 200%). In his view, while there may be some risk arising from Jesse’s psychological diagnosis, it is minimal and would not add additional mortality. His opinion in respect of psychological injuries was clearly informed by Dr. West’s view that Jesse’s PTSD and agoraphobia diagnoses are questionable.

[172] Shortly before trial Dr. Empringham was provided some additional information, including Dr. MacDonald’s clinical notes and reports, and the notes, reports, and letters from Ms. Wicks-Nicholls, Jesse’s family doctor, and others. In his opinion, this information did not warrant an adjustment to Jesse’s mortality risk.

[173] It was never entirely clear to me why the additional mortality risk was expressed as 200% (or +100), as opposed to 25%, 50% or some other number. I was told simply that this is based on assumptions employed when there is a history of methadone use which, I assume, generates this fixed number.

Barbara Baptiste

[174] Ms. Baptiste was qualified and permitted to provide an opinion in the areas of rehabilitation care planning, health service planning, and future care needs and costs. She was present in the courtroom during the testimony of Dr. West, Ms. Pollard, and Ms. Wicks-Nicholls.

[175] With respect to Jesse’s functionality she relied primarily on the diagnostic data (from the tests administered by Dr. West) and Facebook records. She was aware of the divergent psychological opinions in this case, which was confounding.

[176] In her report she detailed the documents and photographs reviewed, and described the facts and assumptions relied upon in making her functional findings. She took us through her evaluation and table of costs.

[177] With respect to medical needs and rehabilitation therapies she concluded that any medical consultation and follow up with a psychiatrist is OHIP funded, as are consultations with a neurologist or physiatrist.

[178] With respect to medications, she notes only that methadone is a funded program with no associated cost. She referenced Jesse’s reliance on marijuana, which she described as a stress management tool. She recommended that Jesse make efforts to get a prescription for medical marijuana which is a better and safer option.

[179] Under the heading: Psychological Services, Ms. Baptiste writes: “While the justification for this support is not clear, I have included some supports to consider the data I collected and reviewed and to ensure a transition from this lengthy period (2009 to present) of confounding contextual information”. As to frequency, she concludes that “to err on the side of caution, and due to the benefit that Mr. Henebry states he gets from the ‘talk therapy’ with Ms. Wendy Lewis, I have included another 1 to 2 years of like support as he transitions more into productive and meaningful activities. After that point some support is included for episodic access, with a focus on at least 5 sessions for ‘parental education and strategies’ should Mr. Henebry possibly require such access”. She set out a cost for two years (twice per month) with some added reserve.

[180] For physical therapy services she set out a fixed expense of $195. This represents the cost of an assessment which would, after consultation with a physical therapist, ensure Jesse is using appropriate exercise techniques to alleviate any pain (most notably his ongoing headaches).

[181] Because he is prone to social withdrawal, Ms. Baptiste recommended a cost for occupational therapy services. She concluded that his ongoing need for such assistance would be minimal and set out a fixed cost of $3,560.

[182] Ms. Baptiste made no recommendation for optometry services or financial management. For addictions she referenced programs offered through CAMH, which is OHIP covered. She was uncertain to what extent Jesse’s addiction issues are linked to the EMDC assault.

[183] She recommended an annual cost, for two years, of $869 for educational support services. She observed that, pre-injury, Jesse was only one credit shy of his high school diploma which remained his status until only recently. She also referenced a finding of malingering made by Dr. West which, I note, does not accurately reflect his opinion.

[184] Vocational support services are recommended. Ms. Baptiste’s report includes a fixed cost in the range of $3,117.46 to $5,236.36. She agreed with Ms. Wicks-Nicholls that Jesse will require this type of support given the length of his absence from the workforce.

[185] She recommended a fixed cost of $550 for a driving assessment and appropriate accommodations (due to Dr. MacDonald’s opinion that Jesse cannot drive due to his anxiety). She also set out a two-year annual cost for mileage.

[186] Ms. Baptiste concluded her report with:

As a result of the index incident on November 17, 2009 Mr. Henebry sustained varied initial injuries and he now experiences problems that may be linked to these injuries and may be linked to other incidents pre-existing and around the same time (2009 home invasion and 2010 assault). Specific supports have been recommended to address his functional deficits that may be associated with this injury, and to maximize his function.

Future care and costs, as described in this document, reflect Mr. Henebry’s community-based care needs following the index incident. Thoughtful consideration, research, collateral data, observation, measurement and formal, structured analysis, have occurred and the concepts of reasonableness, community integration and quality of life have been applied in this assessment, to ensure that Mr. Henebry’s future needs are adequately addressed.

The supports and services outlined in the tables of costs will enable a viable, community care model to achieve independent living in the community (with supports). Without community-based supports, Mr. Henebry risks a marginalized existence and secondary complications.

[187] She was questioned about the appropriateness of relying upon Facebook records. She maintained that she requires a clear diagnosis in order to properly project costs, which was interesting as it was abundantly clear that she relied on Dr. West’s opinion almost exclusively while giving little regard to Dr. MacDonald’s. She explained why she did not contact Dr. MacDonald, pointing to the divergent information and opinions, and the fact that he did not conduct validity testing.

[188] She was challenged on her reliance on OHIP funded programs. It was put to her that to rely on government funded programs - which will often require waiting in the queue - is to transfer the risk from a defendant to a plaintiff. She did not agree.

[189] She believed she was better positioned to assess these costs than Ms. Pollard, as she had access to Jesse’s Facebook records and Dr. West’s report. She resisted any suggestion that the purpose of her report was to undermine Jesse.

James Jeffery

[190] Mr. Jeffery was asked to perform an actuarial valuation to assist in determining a present lump sum value of future payments to Jesse. The valuation date for his report is October 2, 2017.

[191] He explained how statistical probabilities are used to provide the best estimates and how these probabilities are taken from a mortality table. In preparing his report, he had regard to Dr. Empringham’s work and his conclusion that the appropriate mortality assumption for Jesse is 200%. He used this figure in his valuation.

[192] With respect to future care costs, he relied on Barbara Baptiste’s report. Mr. Jeffery set out, within a schedule attached to his report, the present lump sum values. He described how both recurring annual costs and fixed costs are calculated. He determined that the grand total for future care costs is $22,052. He made no allowance for income tax gross up.

[193] With respect to lost earnings he reviewed Ms. Dalton’s report. He concluded that “the report of Ms. Dalton provides an evaluation of potential future earnings if not for the incident, but it does not contain any illustration or application of an offset for expected future earnings as a result of the incident. Thus, unless Mr. Henebry is considered to be incapable of future employment as a result of the incident, the lump-sum values illustrated could only be utilized if subject to a significant reduction on account of expected future earnings.”

[194] He noted that Ms. Dalton’s report is based on a standard mortality assumption and does not take into account the increased mortality Dr. Empringham considered appropriate.

[195] With respect to future lost annual earnings, he concluded that “in view of the information provided to me and the degree of uncertainty concerning the future educational/career path of Mr. Henebry both before and after the incident, for this report I have illustrated the value of past and future lost earnings of Mr. Henebry under three alternative scenarios”. These scenarios are, first, if Jesse does not complete high school, second, if he does complete high school, and third, if he completes a community college program. He sets out the annual earnings under each scenario.

[196] In a schedule attached to his final report he illustrates the estimated total past lost earnings as follows: Under scenario 1 (which assumes Jesse did not complete high school) it is $214,879; under scenario 2 (which assumes Jesse did complete high school) it is $286,807; and under scenario 3 it is $157,086.

[197] Should I conclude that Jesse will be capable of some form of future employment, a discount to the value of gross lost earnings (if not for the incident) would be required. On this issue he suggested that “it may be considered preferable for the level of contingency discount to be determined by the parties or the court based on factual considerations related to the characteristics and expectations of the individual person, rather than on the basis of general population averages. This discount would then be applied to the gross loss calculated on the assumption of continued full-time employment before application of any employment of any employment contingency discounts”.

[198] He noted that a further deduction, which would reduce the present value of future losses and take into account the mortality rate expressed by Dr. Empringham, is in order.

FINDINGS OF FACT

Home Invasion & Events at EMDC

[199] With respect to the Heber home invasion, and Jesse’s time at EMDC, the fact-finding exercise was straightforward. Jesse provided a coherent account of each incident, and to the extent COs contradicted him (though there was very little testimony that did), his evidence is to be preferred. For the most part, COs did not remember Jesse or the events in question and could only speak to the “normal routine” or what they would typically do. COs did generate some notes and log entries, but these were not particularly helpful.

[200] These are my preliminary findings:

• Jesse was the victim of a home invasion. Heber was the assailant. I find that these events occurred as Jesse described;

• Jesse, Adam Nicholson, and Adam’s brother were arrested for offences that were ultimately withdrawn against Jesse;

• the Crown did not initially consent to Jesse’s release, and he was remanded to EMDC to await his bail hearing;

• Jesse was made fun of and ridiculed during his admittance to EMDC;

• Before entry into his assigned unit, Jesse was told by COs that inmates have their own rules and that it would be best for him to follow them;

• there were several breaches of standing orders by EMDC staff;

• Jesse was improperly (and negligently, by the Crown’s admission) placed in a unit with Heber, where he was forced to shower by his range mates, threatened, and assaulted by Heber and other unknown inmates;

• Jesse was assaulted a second time by inmates;

• I find that that during the relevant time there were two security checks, and that whomever conducted them failed to notice that Jesse had been beaten and injured;

• Jesse was taken to the hospital and treated for his injuries;

• both after he was taken from the unit, and during the transport to and from the hospital, Jesse was ridiculed by COs, asked what he did to “deserve this”, and was called a rat;

• after discharge from the hospital, and after suffering what was clearly a significant head injury, Jesse was placed alone in a segregation cell;

• Jesse was left in that cell until he was taken to the hospital again on November 19th, during which time his injuries were not adequately monitored;

• I also find that, upon his return to EMDC after the second hospital visit, Jesse was forced to sweep out a cell as the price to remain in segregation. I accept that he was otherwise going to be placed back into general population.

Non-Justiciable Core Policy Issues

[201] The Crown argues that some of Jesse’s claims are “irrelevant and/or non-justiciable core policy issues”. Several objections were made during the course of the trial on this basis, often in the context of discussions about the very events that underpin this litigation. It is true that questions surrounding EMDC’s inmate population, staffing levels, and the frequency of monitoring and security checks are policy decisions with which the court has no jurisdiction to interfere. I have no authority to compel a change in policy, or to dictate a standing order, nor can I force the government to staff at certain levels or redesign the building or cells at EMDC. I was mindful of the need to prevent this trial from resembling a public inquiry.

[202] However, it was essential that I understand all the circumstances surrounding Jesse’s placement, the beating, and his time at EMDC generally. Also, regardless of a particular policy decision – which is immune and cannot attract liability – there still exists a duty to protect inmates. The Crown cannot simply point to a policy as a complete defence when COs ignore a policy, or standing order, or conduct inadequate security checks. It is wrong to say that the existence of a protected policy decision renders facts irrelevant (beyond the admitted negligence in placing Heber and Jesse in the same cell). This assertion completely misunderstands the purpose behind government immunity. If, within the confines of this protection, government employees engage in conduct or fail to do things that are necessary to protect those in their charge, and if that conduct or failure causes injuries, or exacerbates injuries caused by the initial (and in this case admitted) negligent act, then it is entirely relevant.

Jesse’s Credibility

[203] The Crown argues that, despite the fact there was very little to contradict Jesse’s version of EMDC events, the Facebook records and Adam Nicholson’s testimony should colour his testimony and cast his credibility into question.

Adam Nicholson

[204] I will first address Adam Nicholson. For several reasons he was neither a credible or reliable witness. With respect to the conversations he said he had with Jesse he did not remember when or where these occurred. He gave a fantastical account of a “compatibility cage” that did not and does not exist. I find that he was in no position, post-EMDC, to give an accurate account of how well Jesse was or was not doing but proceeded to do so in any event. While little time was spent on this, it was revealed in cross-examination that Adam felt left out because he was not included in this litigation when he too was assaulted at EMDC. Crown counsel vigorously objected to this part of Adam’s testimony as it was, in her view, “prejudicial”. In overruling this objection I concluded that, of course it was prejudicial, but relevant to whether Adam had an animus to testify against Jesse, which it appears he did. The evidence clearly establishes that their friendship was never the same after EMDC and that Adam, at least initially, believed he should have been consulted and a part of this litigation.

Facebook Records

[205] I turn to the Facebook records. The import of Jesse’s social media presence to this litigation cannot be overstated. The Crown argues that it is critical to my assessment of Jesse’s credibility. Apart from that, it was crucial to Dr. West’s opinion, which in turn impacts other Crown experts who relied on his findings. It is worth noting that the admissibility of Dr. West’s testimony, to the extent he relied on or referred to Jesse’s Facebook entries, was opposed by Jesse. I ruled on that issue and released an endorsement on December 1, 2017.

[206] In its written submissions, at paras. 193 - 197, the Crown argues this on what it styles Jesse’s “true” Facebook posts:

193. The court has determined that Facebook records of plaintiffs are relevant in assessing damages claimed in personal injury litigation.

194. The Crown submits that despite the plaintiff’s denial of the authenticity of some Facebook posts, he generated a significant Facebook presence and produced an immense volume of Facebook data post-EMDC. The Crown submits (as supported by the case law), that the content of the “true” Facebook postings, how the plaintiff used his Facebook account and the sheer volume of the data are relevant and important considerations for the court in evaluating damages.

195. The plaintiff was confronted with a significant number of Facebook posts and messages authored by him that contradicted his assertions about his physical and psychological impairments. Early in his testimony, the plaintiff stated that on Facebook, he would “make things up” to make it seem as though he was doing the same thing as others. However, when asked about numerous interactions which reflect positively on his social, mental and physical abilities, the plaintiff for the most part did not deny their truthfulness.

196. These records and the plaintiff’s evidence regarding what are “true” Facebook postings are inconsistent with the allegations that the plaintiff is unable to work or pursue education or activities of daily living including housekeeping, and social activities…

197. The plaintiff was confronted with post after post showing that he has had and currently does have the capacity to engage in activities he is now claiming he can only complete with great difficulty. The plaintiff generally responded that the posts were not representative of his activities. The plaintiff’s admission that he misrepresented himself on Facebook so as to make himself appear in a way he perceived to be to his advantage must impact his credibility.

[207] On Facebook, Jesse was attempting to portray his as a happy, fulfilling and productive life. The Crown argues that this online picture is accurate, and that Jesse’s trial account is not. The problem with this is its inconsistency with all other trial evidence, including the testimony of Jesse’s family, Dr. MacDonald, and Wendy Lewis. That is to say, there is indisputable evidence that Jesse, before EMDC, was an affable young man on a good life trajectory with decent (if not great) prospects and wonderful interpersonal relationships. Something changed that. The Crown contends that this change, if there was one, was due to a collection of events, including Jesse’s drug use, separation from Melissa, and the home invasion. The Crown also argues that there is no ongoing injury from his time at EMDC implying that Jesse has, for almost a decade now, engaged in a campaign to fool every meaningful person in his life, foregoing any educational and employment opportunities, and allowing his relationships to fall into ruin, with the ultimate goal of convincing me of a lie to achieve a pay day.

[208] At the end of the day, after assessing Jesse’s demeanour, tone and comportment, and when weighing his testimony against all other trial evidence, I accept that his online presence was indeed a ruse to hide what he was experiencing. The evidence confirms that, post-EMDC, Jesse became socially inactive and - at times - completely reclusive. He provided a compelling explanation for his Facebook entries, satisfying me that he would post in an attempt to make it appear as if he were moving forward in life and progressing as his peers were. Despite a very thorough cross-examination, Jesse never resiled from this position, which was supported by his family’s testimony.

[209] The Crown advances the further alternative position which is, even if Jesse’s posts were an exaggeration, the sheer volume and content of the communications “overwhelmingly indicate that the sentiment behind them was genuine”. I am not sure I understand this point but given the findings I set out in the preceding paragraph, it is not necessary that I do.

Psychological Injuries

Dr. West

[210] I have several concerns with Dr. West’s opinion, but I will begin with his use of Jesse’s Facebook posts. Dr. West gave evidence that I, in retrospect, should have more tightly restrained. To illustrate, I cite this exchange in his testimony:

Q (Crown counsel): Yeah. And so we heard testimony from them, from Mr. Henebry, that some of his Facebook postings were exaggerated or they were – they were fake…

A (Dr. West): Yes.

Q: …but that others were true.

A: Yes.

Q: And we heard similar evidence from Zackariah Henebry. So having reviewed the, the testimony of Mr. Henebry relating to his Facebook records, and that of Zackariah Henebry --- relating to the Facebook records --- did your --- did this alter your opinion with regards to the impact of the incident at EMDC on Mr. Henebry?

A: No. So the amended records --- even though there were now things that he said well, you know, that’s not entirely correct, or I, you know, I, I made more of that than it was, or I, you know, tried to make it look like I was doing more than I was --- even after reviewing those records, I continued to be of the same opinion that I held before I reviewed those records.

Q: And why do you continue to hold that opinion?

A: One, one problem is, is credibility, you know…

Q: Mm-hmm.

A: …from my perspective, because I just look at the non-credible responding…

Court: I don’t --- Okay, hold on. This witness should not be commenting on the veracity of testimony that other witnesses have given.

Q (Crown): Can you give other reasons why…

A (Dr. West): Okay, sure.

Q: …your opinion has changed?

A: So, so…

Q: Has not changed?

A: Yeah, so I just --- I looked at the testing that I had and the results that I had. I considered the original Facebook postings that I had reviewed; then the amended ones. I was still of the opinion that there was a level of activity and function, in my opinion, that was based upon the records --- even the amended records --- that was still higher than, in certain domains, than had been reported to me during the interview.

[211] Despite my intervention, Dr. West proceeded to, in effect, do what I had just indicated he could not. Which is to draw conclusions on credibility. He seemed to understand well enough that I was not going to permit this - as he moved from referencing ‘credibility’ to a purported reliance on what is in the ‘amended records’ - but this is a difference without a distinction. He essentially refused to even consider (let alone accept) Jesse’s in-trial account preferring what is revealed on Facebook, insisting that what Jesse can do and accomplish far exceeds what he would have us believe, without even discussing the posts with him. What this tells me is Dr. West was not just predisposed to a certain position – based on his suspect interpretation of the Facebook records - but that his view was intractable with no allowance that what Jesse testified to is true. Such flexibility is essential given an expert’s duty is to assist the court, and not be beholden to one particular party.

[212] As the Crown points out, Facebook records can be relevant in assessing damages in personal injury litigation, but the use is problematic in this case. First, Dr. West has no particular expertise in interpreting social media posts or messages. Second, to the extent they can be relied upon, fairness must, to some extent, prevail. I address this at some length in my December 1st, 2017 midtrial ruling, but, while the rule in Browne v. Dunn does not apply in these circumstances (as it is a testimonial rule aimed at preventing lawyers from ambushing witnesses), if an expert - whose role is to assist the court - is going to use such records in their evaluation they are, in my view, duty bound to present them to the subject and afford them an opportunity to explain them. Dr. West, despite having them in his possession, did not even review the materials in advance of his meeting with Jesse as he did not want to go through the effort in the event Jesse did not attend.

[213] Dr. West acknowledged that there is no accepted protocol, methodology, or guiding principles to be used in assessing someone’s psychological condition based on Facebook records. He nevertheless did just that. Without putting any contradictions or inconsistencies to Jesse, he concluded that Jesse put his life on hold because, in his view, Jesse saw this litigation as his “ticket” to the future.

[214] There are several other problems with Dr. West’s testimony. First, while he ultimately determined that Jesse’s drug use was entirely unrelated to his injuries, he never discussed this with Jesse. Second, I find that his CV was misleading in two respects. He indicated that he obtained his doctorate from the Florida School of Professional Psychology and that it was APA accredited. While it is now, that institution was not accredited at the time he graduated. He also lists Forensic Psychology as an area of special interest, even though he is not a licensed forensic psychologist.

[215] I recognize that in my December 1st midtrial ruling, I wrote the following:

24. …First, much was made of the distinction between clinical and forensic assessments. Clinical psychology is the application of psychological principles, research and techniques in respect of the treatment, diagnosis or assessment of human behaviour or functioning. This is a broad discipline. Forensic psychology is essentially the intersection of psychology and the law. It applies to legal decisions related to a mental health issue, when psychologists or other professionals are often engaged to assist the court. The differences lie in the referral source, whether there is a doctor-client relationship, in the level of confidentiality, presence of consent, and location of the assessment (i.e. does it occur in a psychologist’s office or in a prison).

25. As indicated, much was made of the distinction between a forensic assessment and one conducted by a clinical psychologist or clinical neuropsychologist. The plaintiff argues that, based on Dr. West’s Facebook review and given the content of his written report, and regardless of how the Crown wants to describe him, he has conducted a forensic assessment, an area in which he is unqualified.

26. The question is whether the consideration of records not reviewed with someone being assessed in a clinical setting (including Facebook records) is exclusive to Forensic/Correctional Psychology. I do not believe it is.

27. Furthermore, I am not convinced that Dr. West’s use of the word ‘forensic’, both in his testimony and report, is conclusive. He speaks at some length about his use of the word, clarifying that, in the context of his report, it was simply to express that it would be presented in court, to a trier of fact. I agree with the Crown that there can be multiple meanings for this term.

28. To accept the plaintiff’s argument would be to, in effect, conclude that expert evidence can only be presented, in a legal context, by someone practicing in the Forensic/Correctional Psychology practice area. This cannot be the case.

[216] One could reasonably argue that my conclusion that Dr. West was misleading is inconsistent with my midtrial ruling. That ruling, however, must be placed in its proper context. At the time, I had not yet heard Dr. West’s testimony on the trial proper and was consequently unable to draw any final conclusions in respect of his credibility and reliability.

[217] In my December 1st endorsement, I also write this: “I am simply not prepared to conclude that Dr. West is such a troublesome expert witness…intent on advocating for [one party] only and unwilling to properly fulfill his duties to the court…I believe it falls to me to determine the impact of Dr. West’s failure to speak with the plaintiff about his Facebook posts, in the fullness of time, and to not at this point exclude it altogether”. While I was hesitant to do so then, I now find that he was misleading, which necessarily impacts the quality of his opinion.

[218] I acknowledge that these very concerns were raised by the plaintiff during Dr. West’s qualification voir-dire and that, while I did permit him to provide an opinion, in retrospect I question whether I should have. My job was to undertake a gatekeeping function and prevent the presentation of opinions that are so unreliable as to be useless, and Dr. West’s was close to being just that. I erred on the side of caution and determined that threshold reliability was met, and that any concerns would go to what weight - if any - I would give his evidence. I may have erred in my preliminary assessment, but now find that his opinion is to be given no weight.

[219] Jesse raised other concerns with Dr. West’s conduct. He alleged that Dr. West did not explore the nightmares he was experiencing; that the manner in which Dr. West conducted the assessment made him feel “rushed”; and that Dr. West was not present during the testing. Dr. West testified that he did explore Jesse’s nightmares, and that Jesse did not complain about feeling nervous or anxious, or of being unable to concentrate and properly complete the questionnaires. Dr. West acknowledged that he was not present for all the testing but said this was not unusual, and that he simply did not want to distract Jesse. I do not think there is a need to resolve these contradictions. Jesse might very well have thought it odd that he was left alone to complete the tests, even though it is Dr. West’s typical practice. Jesse not advising Dr. West that he was feeling anxious or nervous does not mean he wasn’t, and Jesse could have felt rushed through no fault of Dr. West.

[220] Above all, I did not understand Dr. West’s logic. He did not directly address his concerns about over-endorsement, obfuscation and non-credible reporting with Jesse (or his family). He did not share his belief with Jesse that his embellishments were exposed through Facebook. He, on the one hand, indicates that the testing results are inconclusive, and that it is impossible to assess the true nature, cause, and severity of Jesse’s symptoms. In fact, he testified that he could not make a diagnosis with a “high degree of scientific certainty”. On the other, despite this purported uncertainty and despite his apparent inability to diagnose Jesse, he felt confident in concluding that Jesse’s “long-term prognosis is favourable, and that he should expect no enduring impairments from EMDC”. I simply do not understand how, given the limitations he describes, he could draw that ultimate conclusion. This made no sense.

[221] The bottom line is, Dr. West’s opinion is not the result of a comprehensive and fulsome evaluation, but solely the product of his interpretation of social media posts.

Dr. MacDonald

[222] Just because I find Dr. West’s opinion to be unreliable does not mean I must accept Dr. MacDonald’s findings. The Crown submits that, because much of Jesse’s treatment was undertaken by Ms. Lewis and not Dr. MacDonald, that his opinion is diminished. The Crown also points out that the bulk of Jesse’s treatment occurred after the summer of 2014, which is when Jesse and others testified that he was experiencing modest improvements.

[223] The Crown also argues that since Jesse has not yet paid for any of his treatment – with the most likely source of payment being funds awarded in this litigation – that Dr. MacDonald has a pecuniary interest in this case. It highlights the fact that the relationship between Dr. MacDonald and Jesse is therapeutic which necessarily focusses Dr. MacDonald (and Ms. Lewis) on Jesse’s perspective. In essence, they are advocates for Jesse and not providing objective assistance to the court. This, it says, should diminish the weight of his evidence.

[224] I have considered this argument but find that, notwithstanding the therapeutic relationship, Dr. MacDonald did not exclusively rely on diagnostic tools, or a brief interview. Rather, his opinion and diagnosis were formed over the course of many years and after several interviews and therapy sessions. Dr. MacDonald focused on Jesse’s symptoms and their impact on his life, which then informed a treatment plan that generated some success. The treatment results demonstrate Dr. MacDonald’s effectiveness and the accuracy of his diagnosis. Though a factor to consider, I am not to automatically discount Dr. MacDonald’s opinion because there is a therapeutic relationship. I am to carefully scrutinize the opinion, how it was formed, assess the facts upon which it is based, and consider the level of progress within that established relationship.

[225] Dr. MacDonald was a credible and reliable expert witness who I find, despite his relationship with Jesse, was here to assist the court. He was flexible and conceded the possibility of alternate conclusions. I further find that his reliance on Ms. Lewis’s efforts does not diminish his opinion.

[226] He described the evolution and slow timeline of Jesse’s treatment. He explained that, to avoid reliving it, trauma victims often avoid discussing triggering events. In his view, this reticence requires that trust be first established with a patient before any meaningful progress can be made, and that this needs to happen in the patient’s time. In other words, he sees nothing unusual in Jesse’s initial reluctance to engage with him.

[227] After some time, he was able to obtain Jesse’s history, an accounting of EMDC, and other significant events in his life. He explained that self-blame and shame are a part of trauma, and that these feelings will cause someone like Jesse to withdraw from family and friends.

[228] The pre-EMDC notes and reports of Jesse’s family doctor led Dr. MacDonald to conclude that Jesse was vulnerable to the psychological injuries he sustained. He described how both the testing and clinical interviews led him to diagnose Jesse with PTSD, a major depressive order, and agoraphobia. Though the Crown suggested that his opinion is faulty due to the timeline of treatment, Dr. MacDonald posited that – to the contrary - this event encouraged Jesse and motivated him to meaningfully seek help. In other words, we must not read too much into the fishing trip or overstate the modest improvements that followed. The turning point was when Jesse felt ready for treatment.

[229] I find that Dr. MacDonald and Ms. Lewis were well positioned to assess the consistency of Jesse’s symptoms and his alleged embellishment, as they observed him over an extended period. Dr. MacDonald noted that PTSD is known to induce risk-taking and self-destructive behaviours and concluded that Jesse’s hydromorphone use and 2015 shoplifting incident were manifestations of the EMDC trauma.

[230] Even after a thorough and vigorous cross-examination, Dr. MacDonald’s opinion was consistent that, while Jesse has improved in certain respects, he would never return to normal. He maintained that, even though Jesse’s diagnosis ultimately improved, any cessation of treatment would cause him to regress. Jesse’s condition is permanent.

[231] In the result I accept Dr. MacDonald’s testimony and diagnosis.

ANALYSIS

General Principles

[232] Jesse must prove three things. First, that the defendant owed him a duty of care in law. In this case, a duty was clearly owed. Second, that the defendant breached the prescribed standard of care. The Crown, by its admission, did so. And third, that this breach caused his injuries. Litigation typically focuses on the second branch of this test, but causation issues arise when there are different potential sources of the harm.

[233] Causation is to be considered in two different ways, as described by the Supreme Court in Blackwater v. Plint, 2005 SCC 58:

It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. The rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is a cause of the plaintiff’s damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been.

[234] On this standard Jesse has established, on a balance of probabilities, that both Heber and the Crown caused his injuries. Scientific precision is not required. In Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 SCR 311 the Supreme Court tells us that this is “essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory”. This [factual] question falls within the sole purview of the trial judge and need not depend on a medical opinion.

[235] Jesse’s injuries and losses were directly caused by Heber and the negligence of EMDC staff, for which the Crown is vicariously liable. The “but for test” has been satisfied.

[236] In regard to damage assessment, the Crown is not required to compensate Jesse for injuries he would have suffered regardless of its conduct, and as such seeks a deduction to any award to account for his pre-existing and certain post-EMDC injuries.

[237] In assessing damages, my task is to ensure Jesse is placed in the position he would have been had it not been for the negligent act. Not worse, not better. The objective is to return Jesse to his “original position”, which includes any condition that would have come about in any event, whether it predates the negligent acts or from something that occurred afterwards.

[238] The Crown also claims that Jesse has not sufficiently mitigated his damages.

Contributory Negligence

[239] The Crown submits that Jesse contributed to his injuries and that some responsibility should be apportioned to him. It alleges that Jesse failed to alert the COs about Heber and the threat he posed to him. It argues that Jesse “deprived the officers of the opportunity to make informed decisions about his safe placement”. It further submits that, during and after admission, Jesse had several opportunities to inform officers about the danger but chose not to.

[240] The Crown relies largely on the evidence of Adam Nicholson, who testified that Jesse knew Heber was incarcerated at EMDC. However, Jesse testified that he did not know beforehand that Heber was incarcerated at EMDC and did not realize he was there until confronted in the bathroom. As indicated earlier in these reasons, to the extent Jesse’s testimony conflicts with Adam’s, I prefer Jesse.

[241] I specifically reject Adam’s testimony about a “compatibility cage”. If such a cage existed, and if Jesse was in that cage, it might have been an opportunity to observe Heber before placement on the range. But it does not exist, and this did not happen. I find that Jesse did not speak to Adam about such a cage and did not advise him beforehand that he knew Heber was at EMDC.

[242] I reject any suggestion that Jesse had an opportunity, between what I find were two separate assaults, to notify COs about his history with Heber. Did he have an opportunity after his removal from the unit? I am not convinced that he did. The culture of EMDC, the fact that a CO called him a “rat” and suggested that he follow the “inmate’s rules”, and the likely prospect that he was going to be placed back into the general population precludes any such finding or assignment of responsibility to Jesse. There is no contributory negligence.

Pre-Existing & Subsequent Injuries

[243] The Crown asserts that Jesse’s pre-EMDC injuries are an important consideration on damage assessment. It points to Jesse’s childhood cancer diagnosis, surgery for osteosarcoma, two arm fractures, back injury, prior treatment for his right knee, and the fact that at 12 years old he suffered from dizziness and blurred vision. I find that Jesse’s current injuries are in no way attributable to these events and as such there will be no pre-existing injury discount to account for these particular ailments.

[244] The Crown further argues that it is impossible to say whether Jesse’s injuries stem from EMDC, his drug use, separation from Melissa, Heber home invasion, or a combination of them all. On the accepted evidence - including from Jesse, his family, and Dr. MacDonald - the trauma of EMDC far outweighs the others. It is also true that Jesse’s history with Heber heightened the risk and impact of EMDC, and that a tortfeasor must take the plaintiff as he finds him.

[245] Having said that, the Heber home invasion – while it informed the EMDC event – must be distinguished as, if injuries can be isolated and attributed to that incident alone, the Crown cannot be held responsible for them. And even Dr. MacDonald acknowledged that the home invasion would have had a psychological impact on Jesse. For that reason, though EMDC is the seminal event and most significant cause of Jesse’s injuries, there will be a modest pre-existing injury discount to account for the home invasion.

[246] I find that all post-EMDC incidents of trauma cited by the Crown are of no consequence (i.e. drug use, relationship breakdown). These resulted from and were symptomatic of EMDC. There will be no subsequent injuries discount.

Mitigation

[247] The Crown argues that Jesse failed to take reasonable steps to mitigate his losses, and that it is not responsible for those damages he could have avoided had he done so. I touch upon this earlier, but given the nature of PTSD and trauma generally, and given Dr. MacDonald’s testimony, I am unable conclude that Jesse was not diligent in seeking help. In fact, the evidence establishes that Jesse promptly and responsibly sought treatment for his physical injuries after release and that - as soon as he was able - became engaged in psychological treatment. Furthermore, there is no basis to conclude that in the aftermath of EMDC, given his condition, he was in any position to take the mitigating steps suggested by the Crown. While treatment was delayed because Jesse was initially uncomfortable discussing his issues, according to Dr. MacDonald this was typical of someone with PTSD. Avoiding traumatizing memories is not a failure to mitigate.

Quantum of Damages

[248] Jesse seeks the following relief:

• for general damages - $250,000;

• past loss of income - $178,300;

• future loss of income - $1,908,700;

• future care costs - $361,051;

• Homewood Health Center Addiction Program - $10,325; and

• special damages (treatment from Dr. MacDonald to date) - $9,975.

[249] Should I find that his Charter rights have been violated Jesse seeks as a remedy $100,000 for compensation, vindication, and deterrence.

[250] The FLA claimants seek damages in the amount $240,000; $100,000 each for Marcia and Zack, and $20,000 for each grandparent.

General Damages

[251] General damages are to compensate a plaintiff for non-financial losses. In Lindal v. Lindal 1981 CanLII 35 (SCC), [1981] 2 S.C.R. 629 the Supreme Court provides this guidance:

…since the primary function of the law of damages is compensation, it is reasonable that awards for non-pecuniary loss, which do not fulfil this function, should be moderate.

[252] In today’s dollars the upper limit for general damages, as established by the Supreme Court in 1978 (and subsequently reaffirmed), is roughly $345,118.

[253] Jesse suffered both physical and psychological injuries. His physical injuries consisted of a laceration just above his right eye (which was sutured), an abrasion to his left eye, swollen cheek and lip, and a fracture to his right sinus wall and right nasal bone. I accept Jesse’s evidence that he experienced facial, shoulder and jaw pain; that he lost consciousness; and was unable to eat normally for almost two weeks.

[254] There is no evidence that Jesse suffered a lasting brain injury. He did not require surgery.

[255] Jesse’s psychological injuries are as described by Dr. MacDonald. Despite his very clear diagnosis, which I accept, I note that when addressing claims for negligently caused psychological injury a formal psychological diagnosis is not required.

[256] The evidence establishes that Jesse’s psychological injuries are serious and permanent. His impairments rise above the ordinary annoyances, anxieties, and fears that come with living in society. The Crown’s written submissions on this point are to, in effect, minimize Jesse’s injuries. For example, it writes at paras. 108-110:

108. At the outset of trial, The Crown in its opening submissions noted that it was expected that the plaintiff would point the finger at EMDC as the source of virtually all of the alleged problems in his life relating to his: physical health particularly his psychological health, unemployment, lack of pursuit of further education, lack of career development, and his ability to socialize.

109. The plaintiff did precisely that and pursued at trial the theory that virtually every real and imagined ill in his life followed from his four-day incarceration at EMDC.

110. It is submitted that this is not supported by the overwhelming evidence presented to this court.

[257] I am not entirely certain what this “overwhelming” evidence is. If it is Dr. West’s opinion, I have already addressed this. It is hardly overwhelming. If it is the nature of the Facebook records, while it was appropriate to explore them, I accept Jesse’s explanation that this was a ruse. It is not far-fetched to think that, in the circumstances, Jesse would attempt to shield his condition from others. I do not need to rely on Jesse’s word, as his testimony was consistent with what I would characterize as the overwhelming evidence presented by Jesse’s family, and those treating him.

[258] In assessing these damages, I am mindful of the moral obligation to show humanity and treat everyone with dignity and respect. I find that - far too often - we, society at large, pay insufficient attention to the conditions in correctional facilities. The prevailing public sentiment seems to be that those in jail deserve to be there, and what happens to them while inside is what they had coming to them. This ignorant view fails to recognize that many inmates are in custody for crimes they have not yet been convicted of, and that some are wrongly accused and innocent. Just because there are consequences for bad behaviour, and just because people must sometimes be separated from society, does not mean they should be subjected to violence and degradation at the hands of, or with the encouragement of, the state.

[259] It is the loss of freedom and separation from one’s family, work and home that should be the punishment for bad behaviour. Nothing more. I find it obscene that we often countenance the idea that another layer of castigation should await those who are incarcerated, which is precisely what Jesse encountered when he was admitted to EMDC. He had not just lost his freedom while awaiting a bail hearing. He, as a vulnerable young person who had never before been in such a setting, was expected to then navigate a criminal subculture on his own. What is more alarming is that Jesse was prompted and encouraged by COs to abide by the inmate’s unsanctioned rules. It is one thing for COs to recognize the reality of the institutions in which they work, but quite another to encourage and foster the violence that they know exists. This conduct was despicable.

[260] That is not to say jails should be places of luxury. However, we must insist that those serving time within these institutions are protected from physical and psychological harm, and that the bare necessities of life be provided.

[261] I earlier made the comment that this is not a public inquiry. I assert, again, that it is not. I have no ability to correct what I might find are deficiencies in the operation of EMDC. Having said that, the conditions I heard of must cease. There must be no complacency. No one should ever again experience what Jesse did.

[262] It is important to step back and imagine for a moment what Jesse endured. When his account is narrated in the sterile setting of a courtroom, or read about in a decision, it is hard to gain a full appreciation of it. Jesse was, at a time he was presumed innocent, jailed for four nights for a crime that he was never convicted of. This included three nights at EMDC, two of which he spent in segregation recovering from significant physical injuries. This was not a fleeting violent incident. It was prolonged and persistent. After he was victimized twice in cells, he was then faced with the prospect of being returned to the general population, at one point having to earn the right to stay in segregation by cleaning his own cell. He was mocked and ridiculed by COs. The psychological impact of this must have been immense and should not be trivialized or measured against other victims who have suffered more significant and lasting physical injuries. Psychological injuries are often just as severe, and in some cases more debilitating. I am to take a functional approach to the valuation of non-pecuniary losses which should never depend on the seriousness of physical injury.

[263] Recognizing that this form of compensation can never be assessed perfectly or with precision, it must still fairly represent the conduct that led to Jesse’s injuries, the circumstances in which they were sustained, and Jesse’s personal circumstances. In this case an award in the amount of $150,000 is warranted. This adequately represents Jesse’s pain and suffering, loss of enjoyment of life, and is fair and reasonable in the circumstances.

Future Care Costs

[264] The purpose of a future care cost award is to ensure that Jesse is adequately cared for. The test is objective and to be based on medical evidence. To include an expense, I must be satisfied that it is necessary and reasonable. The goal is to compensate Jesse, not provide him with a windfall or form of retribution.

[265] Jesse’s counsel cites the law in relation to future care at pgs. 46 and 47 of his factum. He writes that:

165. The goal of an award of damages for personal injury is to make good to the plaintiff the loss that he/she has suffered as the natural result of the wrong done to him/her. The goal of an award for future cost of care is to ensure that the plaintiff is adequately cared for during the rest of his/her life.

166. Once the plaintiff establishes a need for future care, full compensation must be awarded. For future care, proof of a substantial possibility, as opposed to proof on a balance of probabilities, is required. The plaintiff must establish a real and substantial risk of future pecuniary loss in order to prove entitlement to compensation. The greater the risk of need, the greater will be the compensation.

167. Once the plaintiff establishes a need for future care that is more likely than not, it is considered a certainty in law. It ought not to be reduced for the contingency that it will not be required.

168. The goal of an award for future care costs is compensation – not merely provision. The level of care provided by governments is only of marginal assistance in determining the appropriate level of compensation for the plaintiff.

[266] In terms of what is a reasonable expenditure, the Supreme Court poses this question in Thornton v. Prince George School District No. 57, 1978 CanLII 12 (SCC), [1978] 2 SCR 267: Would a right-thinking person regard it as a squandering of money or conclude that appropriate care could be provided at a figure less than suggested?

[267] It is clear, based on my findings, that Jesse is entitled to an award that would cover, at least, his counselling expenses.

[268] During cross-examination, Yvonne Pollard acknowledged that some of her recommendations were unnecessary. First, although I am not certain she should have, she conceded that a medication allowance is unjustified. Second, given the absence of any lasting physical injuries she agreed that a costing for rehabilitation support, physiotherapy and a YMCA membership is unwarranted. And third, she testified that a future consideration for parenting support is too speculative.

[269] I have some concerns with the testimony of Barbara Baptiste, which are similar to my concerns with Dr. West. Her reliance on Facebook records renders her work unhelpful. She did not address any concerning posts or messages with Jesse and relied upon an opinion that Jesse was malingering. I make no such finding. I specifically reject the suggestion, which Ms. Baptiste adopted, that Jesse’s substance abuse disorder is unrelated to EMDC.

[270] The most curious aspect of her testimony was the reference to a Facebook photograph of a massive snowman that she, at least until trial, assumed Jesse built. This appeared to be quite significant to Ms. Baptise. The caption to this post, however, made it clear Jesse had not built it. Without confronting Jesse or providing him an opportunity to explain, she concluded based on this, and other posts, that he was overstating his condition and was capable of doing more than he was letting on. As was the case with Dr. West, this view seemed to be based entirely on the Facebook posts and photographs.

[271] For future care costs, I award to Jesse $59,138, broken down as follows:

• Transportation, which is a need notwithstanding the fact Jesse has since obtained his license - $3,300.

• Addictions treatment, which I find is related to Jesse’s EMDC injuries - $10,325.

• Occupational Therapy / Vocational Support - $7,200.

• Educational Support - $1,738.

• Psychological Treatment - $35,325.

• Medication, which is important to include as a contingency given the relationship between PTSD and depression - $1,250.

[272] Jesse has established that there is a substantial possibility that each of these costs will be required in the future.

Special Damages

[273] For the psychological treatment incurred to trial, I award $9,975.

Past & Future Income Loss

[274] Jesse claims for loss of income both past and future.

[275] Jesse relies upon the report and testimony of Karen Dalton. She calculated losses based on three scenarios, all of which assume Jesse will not be able to return to the workforce. James Jeffery prepared a report and testified on behalf of the Crown. His calculation applies a mortality rate of 200% (see Dr. Empringham’s report), which is based on Dr. West’s opinion that Jesse’s substance abuse is unrelated to EMDC.

[276] In assessing these damages I am to consider factors that relate to Jesse’s actual likelihood of achieving a stated career goal (before EMDC), including whether he had applied for or quit jobs in that field, sought to acquire the necessary qualifications, and his knowledge and awareness about how to achieve his goals.

[277] While I have accepted Jesse’s and Dr. MacDonald’s testimony, this does not necessarily mean I must find that Jesse will never again be able to work, nor does it mean I must adopt Ms. Dalton’s calculations. There are several considerations here. First, Jesse has no lasting physical ailments. Second, I must carefully scrutinize the assumptions the competing experts rely upon. Third, I must closely examine Jesse’s situation before EMDC. Fourth, should I accept the Crown’s argument with respect to income loss, a significant discount (to whatever I find to be the appropriate amount) could very well be in order. And lastly, should I accept Ms. Dalton’s calculations, if I find that Jesse will at some point again be able to work, the future loss figure must be reduced to reflect that fact. Even though Jesse is and always will be impaired, his diagnosis changed over time and his condition, according to Dr. MacDonald, has improved.

[278] After EMDC Jesse held some short-term employment. He has, however, supported himself mostly through welfare benefits. The Crown points out that, before EMDC, his situation was effectively the same. He was doing identical work, resorted to welfare, and was experiencing similar challenges. I was told that Jesse mentioned enrolling in the home inspector program at Fanshawe College before EMDC but failed to take any steps to pursue this.

[279] The Crown submits that I should prefer Mr. Jeffery’s evidence to Ms. Dalton’s for the following reasons:

• He used a sound and accepted methodology to calculate income loss.

• He applied appropriate and supported actuarial assumptions, most notably the application of an off-set between potential earnings (but for EMDC) and that which he is expected to earn in the future as a result of EMDC. The Crown argues that Ms. Dalton failed to do this and was further obliged to show illustrations and apply an offset for expected future earnings as a result of the incident.

• He appropriately modified the standard mortality rate to 200% to reflect Jesse’s particular circumstances.

[280] The Crown submits that Ms. Dalton’s opinion is flawed, not just because she failed to include an off-set calculation but, and perhaps more significantly, it is not based on any assumptions specific to Jesse. For these reasons it argues that I cannot rely on Ms. Dalton’s findings.

[281] Some of these are fair points. Most notably, Ms. Dalton did her calculations assuming that Jesse is completely disabled and will forever be incapable of working. This is important as, even though I have rejected Dr. West’s evidence, it is still open to me find that Jesse is not impaired to the point that he can never find and maintain employment.

[282] With respect to the mortality rate, Dr. Empringham’s opinion was based on Jesse’s history of substance abuse. Even though I have found that his addiction has some relation to PTSD, it would be difficult to conclude that EMDC is the sole cause or only contributing factor. A slight reduction may therefore be in order.

[283] I turn to the various scenarios used by each expert. With respect to Mr. Jeffery’s scenario 3 and Ms. Dalton’s scenario B I find that each is far too speculative. Having regard to Jesse’s pre-EMDC circumstances it is not open to me to conclude that he would have commenced or completed community college. He had no concrete plans and took no steps to further that goal, if it indeed was one.

[284] With respect to Ms. Dalton’s scenario A and Mr. Jeffery’s scenario 2, the Crown argues that, even though Jesse has since attained his high school diploma, it is but a “speculative possibility” that Jesse would have completed it had he not been at EMDC. It points to the fact that Jesse was not in school, had not yet completed his high school diploma, turned to welfare, and was engaged in only sporadic short-term employment. Jesse argues that, given his age at the time, and how close he was to obtaining his diploma (he was only one credit shy), it would be reasonable to base an award on him having at least finished high school.

[285] While I disagree with the Crown that - just because Jesse has since achieved the one credit required for his high school diploma - he has demonstrated an ability to attend school and work, I do agree that a number of contingencies must be applied. It is necessary to take into account the fact that Jesse may suffer a loss of earnings due to unemployment, demotion or disability which is supported by the fact he received welfare benefits before EMDC, worked only sporadically, and struggled to finish high school at all and in a timely manner. It is also fair to say that, while certainly a contributing factor and related, Jesse’s drug use cannot entirely be attributed to his EMDC trauma.

[286] The final award should reflect whether Jesse will have the ability to work. Under his scenario 2 Mr. Jeffery opines that the present value of Jesse’s past and future income loss is $427,464, which assumes that (as a result of EMDC) he will commence full-time employment on July 1, 2018. Under Ms. Dalton’s scenario A (which assumes Jesse would have attained a high school diploma), she opines that Jesse’s past and future income loss is $1,784,200, broken down as $175,500 for the past and $1,608,700 for future. Under her scenario C, which is based on Jesse working as a factory or construction labourer, Ms. Dalton calculates Jesse’s future loss to be between $863,200 and $1,078,300.

[287] I found this to be a particularly challenging exercise. Not only are the competing positions polar opposite, there is no clear answer in the evidence as to whether, or at what point, Jesse will, through diligence and appropriate therapy and treatment, become able to pursue what he states are his work and educational goals.

[288] As serious as Jesse’s injuries are - and I would not want to understate his experience and all that flowed from it - the evidence suggests that, despite the permanency of his impairment, should Jesse continue his treatment and progress as I suspect he can, he will at some point be able to work. When that will be is an open question that I am having trouble resolving, which cannot be answered by simply inviting the experts to assist further by conducting additional calculations under other scenarios. What I can say is that despite Jesse’s diligence in seeking help and engaging service providers, he is now unable to work and will be so into the foreseeable future.

[289] Should I determine an award based on Jesse finishing high school? As compelling as Jesse’s argument is, I agree with the Crown that given Jesse’s circumstances immediately before EMDC, it would be pure speculation to conclude that he would have successfully finished. The fact he ultimately did is of no consequence to my analysis. I must look objectively at the facts, as they existed, before EMDC.

[290] After considering the evidence and all presenting factors, I find that the best option is Ms. Dalton’s scenario C, which assumes that Jesse will work as a factory labourer. This is what Jesse did before his injuries and would have been, based on what I know, his most likely career had he not been at EMDC.

[291] I acknowledge the tension between finding that Jesse suffered serious and permanent psychological injuries, and that – with intensive treatment and ongoing assistance – he will one day be able to work. I cannot conclude that this will happen any time soon but given Jesse’s age, his willingness to be helped, and the supports available to him, it is my sincere belief that he will.

[292] That said, while it is Jesse’s onus to prove his damages, just because damages are difficult to assess does not mean they should be denied or fixed at a nominal amount. I am guided by Finlayson J.A. in Martin v. Goldfarb (1998), 1998 CanLII 4150 (ON CA), 41 O.R. (3d) 161 where, at para. 75, he writes:

…where the assessment is difficult because of the nature of the damage proved, the difficulty of assessment is no ground for refusing substantial damages even to the point of resorting to guess work. However, where the absence of evidence makes it impossible to assess damages, the litigant is entitled to nominal damages at best.

[293] I suppose that I have options, one being to simply select and apply a number of years before Jesse is able to work, or to guess at which age I think he will be ready. Given the absence of any expert opinion on this precise question, I find this approach to be far too random and indiscriminate.

[294] In the circumstances the preferable approach is to, in my judgment, arrive at a figure that is reasonable in the circumstances and fair to each party, which I determine to be:

• for past income loss $168,000; and

• for future income loss, before any discount or application of negative contingencies, $970,750, which is the mid-point of the range cited by Ms. Dalton in her scenario C.

[295] After applying a 50% discount to this future loss figure - which is my best attempt to address the concerns raised by the Crown including contingencies not considered by Ms. Dalton, the fact Jesse will again be able to work, other factors that may have led to Jesse’s drug use, and to account for the impact of the home invasion – I fix the future income loss award at $477,188, which is $485,375 minus $8187 in welfare benefits paid to Jesse.

Canadian Charter of Rights and Freedoms

[296] Jesse alleges that his rights under ss. 7 and 12 of the Charter were violated. He seeks a remedy pursuant to s. 24(1). These sections provide that:

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.

8. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

24(1). Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[297] The threshold for establishing a s. 12 violation is high, as recently held by the Ontario Court of Appeal in Ogiamien v. Ontario, 2017 ONCA 667. At para. 9 of that decision the court writes:

The Supreme Court has used various expressions to describe this high bar: “so excessive as to outrage standards of decency”; “grossly disproportionate to what would have been appropriate”; “grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable”. The point underlying these expressions is that merely excessive treatment or disproportionate treatment is not enough to establish a s. 12 violation.

[298] Such findings should be, and have been, rare. Much of the jurisprudence in this area addresses sentencing and police conduct on arrest. Respecting custodial facilities, courts have recognized that onerous conditions exist (particularly for those in pre-trial detention) but have consistently held this fact alone does not amount to cruel and unusual treatment.

[299] There are sound policy reasons for this, as every hardship experienced by an inmate cannot give rise to a Charter claim. A whole host of conditions, while onerous, would not rise to the level of a Charter violation, including overcrowding, increased lockdowns, inadequate access to rehabilitative programming, subpar facilities, minimal opportunities to visit loved ones, and limited ability to meet with and meaningfully instruct counsel. I could go on, but these are the types of conditions that, while onerous, are likely not violations of the Charter. At least not the type that would attract a remedy such as damages.

[300] In this case, we are talking about a vulnerable young person - without a record who, at a time he is presumed innocent - being placed in a confined area with other violent offenders, including one who had a specific vendetta against him. He was, consequently, viciously assaulted twice. While the negligent act that led to this unfortunate event was unintentional, that oversight and what followed should cause outrage and shock in the community. I am not to gauge the community’s conscience or reaction against the feelings of a random person, but against a reasonable person, who is of average skill and intellect, and who possesses at least a working knowledge of our legal and correctional systems.

[301] In conducting this analysis, it is important to draw a clear distinction between what Heber did, and the administrative decisions and conduct of the government actors (EMDC staff).

[302] The Crown argues this at para. 85 of its Factum:

Many of the plaintiff’s allegations concern instances where the institution departed from the standing orders and other policy directions. While Ontario contests these allegations, they have limited relevance to the Charter analysis in any event. Rather, the Charter analysis under s. 12 is focused on the effect of the impugned treatment on an individual inmate. Allegations that staff did not fully comply with institution policies would only be relevant to the Charter s. 12 claim if the effect of the non-compliance was grossly disproportionate.

[303] The Crown advances a similar position in respect to the verbal harassment that Jesse suffered at the hands of the COs, arguing that it can only be relevant if it rises to the level of excessive or harsh treatment, and is grossly disproportionate.

[304] According to Jesse, the s. 12 infringement lies in:

• Jesse’s range assignment with other inmates, when it was known by COs that those inmates make and enforce rules (with physical consequences for not abiding), evidenced by their encouragement of Jesse to follow them, and insinuation upon admission that his diminutive size would make it difficult for him to get along and survive;

• the ridicule from COs after being removed from Unit 5 left;

• the scolding for bleeding on the floor; and

• for being ridiculed and called a rat during his transport to and from the hospital on November 17th.

[305] While the COs who did and said these things have not been identified, they were all government employees.

[306] Jesse bears the burden, on a balance of probabilities, of proving that the conduct of the COs amounted to cruel and unusual treatment. Has he done so? Is this government conduct grossly disproportionate to what is appropriate?

[307] One must remember that the Charter is aimed at protecting and enhancing an individual’s worth and dignity. The following are factors courts have considered in answering this question:

• Did Jesse’s treatment go beyond what is necessary to achieve a legitimate penal aim?

• Was it unnecessary as there were other adequate alternatives?

• Would it be unacceptable to a large segment of the population?

• Is the conduct such that it cannot be applied upon a rational basis in accordance with ascertained or unascertainable standards?

• Was it arbitrarily carried out?

• Does it have any value in the sense that it served some social purpose (i.e. reformation, rehabilitation)?

• Does it accord with society’s standards of decency and propriety?

• Would the treatment shock the community’s collective conscience?

• Can it be reasonably considered tolerable and fundamentally fair?

• Was it unusually severe and degrading?

[308] It is tempting, while describing the COs behaviour as ill-advised, to simply conclude it is not severe enough to warrant the admonition inherent in the finding of a Charter breach. The conclusion I suspect many would draw is, though not ideal, this probably happens all the time and is typical discourse between COs and inmates. From a public policy perspective one might also be leery to condemn this type of behaviour, as COs have a difficult job and are often required to be direct, blunt, and even unpleasant.

[309] However, keeping in mind the rationale behind s. 12 and what it is intended to protect, I cannot detach the COs comments and behaviour from the totality of the evidence. I must consider it in the context of Jesse’s particular circumstances and background, the conditions at EMDC specifically, the CO encouragement to “follow inmate rules”, and Jesse’s physical and psychological condition at the time. Viewed in this way, it is truly shocking behaviour that should offend everyone’s conscience. It was deplorable and extreme.

[310] I appreciate that Jesse’s particular vulnerabilities are irrelevant on a Charter analysis, but on an objective standard I find that: There was no penal value to the CO conduct. It was not necessary to achieve anything other than to ensure Jesse did whatever other inmates told him to do (which is a complete abdication of the job of a CO). It was arbitrary. It would be unacceptable to any fair-minded member of the community and was, in the circumstances, uniquely degrading and humiliating. In fact, the sole purpose of the joking and ridicule was to degrade and demean Jesse.

[311] The evidence establishes a Charter infringement. Jesse’s right to not be subjected to cruel and unusual treatment was violated.

[312] I turn to s. 7. Jesse argues that his rights were violated under this section as a result of:

• Being negligently placed in the same unit and cell as Heber.

• Negligent supervision by COs, including inadequate security checks.

• The verbal abuse I spoke of at length in my s. 12 analysis.

[313] There is a two-step test. First, did a law or government action deprive an individual of life, liberty, or security of the person? And second, if so, was the deprivation contrary to the principles of fundamental justice? Jesse bears the burden on each element.

[314] When psychological injuries are at play on a s. 7 analysis, I must be guided by the Court of Appeal’s direction in R. v Donnelly, 2016 ONCA 988 where, at paras. 120-121 it writes:

Where, as here, the psychological integrity of a person is at issue, security of the person is restricted to “serious state-imposed psychological stress”. The state conduct must have a serious and profound effect on a person’s psychological integrity. These effects are to be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility.

[315] As is the case on an assessment of damages under the more typical heads, there is a difference between psychological upset and psychological injury. To endure something that causes psychological upset is not sufficient to warrant a finding of liability and an award of damages, let alone the finding of a Charter breach. I have, to a large extent, already addressed the concerns raised in Donnelly in finding that Jesse’s experience gave rise to serious and permanent psychological injury. I am mindful of the fact that, on a Charter analysis, I am to engage in an objective exercise that measures the impact against someone with a ‘reasonable sensibility’, and that Jesse’s particular vulnerabilities are irrelevant.

[316] The Crown argues that there is a lack of evidence to support a finding that, what it describes as unprofessional and inappropriate remarks, amounts to serious state-imposed psychological stress.

[317] I disagree. The aggregate of the evidence supports a finding that Jesse was deprived of his right to life, liberty, and security of the person. Government actors verbally abused and taunted him, and failed to adequately supervise the range, and conduct security checks. These actions did not result in mere upset. They led to physical harm and severe and permanent psychological injuries.

[318] Was Jesse’s deprivation in accordance with any principle of fundamental justice? The outrageous behaviour by COs in this case was arbitrary and not in furtherance of any legitimate objective. There was no valid purpose to it, and as such Jesse’s rights under s. 7 were violated.

[319] The Crown argues that, should I find a violation, the appropriate remedy is simply the declaration that Jesse’s Charter rights were infringed. Jesse seeks damages in the amount of $100,000.

[320] Section 24(1) damages are assessed differently than others. Under the more typical heads, damages automatically follow a liability finding with the only issue being quantum. On a Charter analysis, to find a violation does not necessarily lead to damages.

[321] Before damages can be awarded Jesse must satisfy this four-part test:

• First, was there a Charter violation? There was.

• Second, do functional considerations of compensation, vindication or deterrence make an award of damages prima facie just and appropriate?

• Third, are there any countervailing factors that make an award of damages unjust or inappropriate?

• And fourth, is the quantum of damages appropriate and just from both the perspective of Jesse and the government?

[322] The strongest argument against an award is that Jesse is already entitled to damages under several other heads (i.e. income loss, future care), and that to grant such a remedy here would amount to double recovery. That is, damages are unnecessary as Jesse is being compensated otherwise.

[323] What weighs most heavily in favour of Charter damages is the bad faith conduct of COs, their carelessness, and complete disregard for Jesse’s rights.

[324] I find that, while a remedy in the form of compensatory damages is unwarranted, damages are required in order to vindicate Jesse and meaningfully deter similar treatment in the future.

[325] To be appropriate and just, damages must represent a meaningful response to - and sufficiently reflect - the seriousness of the infringement. In assessing seriousness I find that the COs were arrogant, highhanded, callous, and that their behaviour led to Jesse’s physical injuries and exponentially increased his psychological stress.

[326] The Crown has not demonstrated that the countervailing factors defeat the functional considerations and has therefore failed to establish that a damage award is inappropriate and unjust.

[327] I am of the view that damages in the amount of $20,000 is the appropriate remedy.

Aggravated & Punitive/Exemplary Damages

[328] Aggravated damages are compensatory in nature and only to be awarded if the acts complained of are independently actionable. This is not a separate head of damage and, if warranted, would simply enhance the general damages award. In this case I find that Jesse’s injuries were aggravated by the manner in which the COs conducted themselves, which is reflected in the general damage figure cited.

[329] Punitive damages are distinct from aggravated damages. They are not compensatory in nature and are designed to punish and deter a tortfeasor, as well as others, from repeating the wrongful conduct. Given my Charter findings, which addresses deterrence, there is no need to make an award under this head.

FLA Claimants

[330] Zack, Marcia, and Jesse’s maternal grandparents seek compensation for loss of care, guidance and companionship pursuant to s. 61 of the Family Law Act.

[331] Notwithstanding Jesse’s permanent limitations the evidence establishes that he continues to at least be present in the lives of each FLA claimant and an important and loved member of the extended family. However, given Jesse’s limited ability to resurrect and maintain the close relationships he once had with them, there has been a loss of companionship. Put another way, each has lost the rewards of association that once flowed from their relationship with Jesse.

[332] I am of the view that the sum of $25,000 for each of Marcia and Zack, and $7,500 for each grandparent, is reasonable.

CONCLUSION

[333] In summary I find that Heber committed the intentional tort of battery, and that the Crown is vicariously liable for the negligence of its employees.

[334] Judgment shall issue requiring the defendants, on a joint and several basis, to pay Jesse:

(a) Non-pecuniary general and aggravated damages in the amount of $150,000.

(b) Future care, maintenance and therapy costs in the amount of $59,138.

(c) Past loss of income of $168,000.

(d) Future loss of income of $477,188.

(e) Special damages in the amount of $9,975.

(f) Marcia Bryson: FLA damages in the sum of $25,000.

(g) Zackariah Henebry: FLA damages in the sum of $25,000.

(h) Michael Antonucci: FLA damages in the sum of $7,500.

(i) Sharon Antonucci: FLA damages in the sum of $7,500.

[335] Judgment shall also issue requiring the Crown to pay Jesse, as a remedy for its violation of his rights under ss. 7 and 12 of the Charter, damages in the amount of $20,000.

[336] For the non-pecuniary general damages pre-judgment interest is payable at the rate of 5%.

[337] Prejudgment interest is otherwise payable at the published rate.

[338] Post-judgment interest applies and will be calculated from the date of this order.

[339] If the parties cannot agree on costs, I invite concise written submissions not to exceed five pages in length (excluding a costs outline). Jesse has 30 days. The Crown 15 days after that.

[340] These submissions will address no issues other than costs. There is no right of reply.

“Justice Jonathon C. George”

Justice Jonathon C. George

Released: October 31, 2018

COURT FILE NO.: 5697/2011

DATE: 2018/10/31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jesse-Lee Henebry, Marcia Dawn Bryson, Zackariah Henebry, Michael Antonucci and Sharon Antonucci

Plaintiffs

-and-

Her Majesty the Queen, Mike Heber

Defendants

REASONS FOR JUDGMENT

George J.

Released: October 31, 2018