When is the Crown Responsible for Inmate Violence?

The criminal justice system is designed to hold people accountable for their actions. What consequences arise when that system fails? Who is accountable when an individual, who was never convicted, is savagely beaten while in custody awaiting a bail hearing? When is the Crown responsible for inmate violence? As the Roman poet Juvenal once asked, “Who will guard the guards themselves?”

These questions are addressed by the recent decision in Henebry v Her Majesty the Queen, 2018 ONSC, where McKenzie Lake partner Kevin Egan represented a client who received over $860,000 in damages, plus an additional $20,000 in damages for the violation of his rights under sections 7 and 12 of the Canadian Charter of Rights and Freedoms. The complete award, including claims by family members under the Family Law Act and interest, totaled more than $1,050,000.

Jesse’s Story

Jesse Henebry was nineteen years old, and without a criminal record, when he was arrested in November 2009. His roommate’s brother had stolen some items from a residence while Jesse and his roommate were in a car outside. All three were arrested and charged. The charges were later withdrawn against Jesse, but not before Jesse’s life was irreversibly changed.

To understand what happened next, it is necessary to know what had happened four months previous. Jesse was at home when Mike Heber, who was a friend of Jesse’s roommate, robbed their apartment. During the robbery, Jesse was tied up, stomped on, and threatened with a sawed off shotgun. Mr. Heber was arrested and admitted to the Elgin Middlesex Detention Centre (“EMDC”). His remand warrant included notice to the EMDC that Mr. Heber was to have no contact with Jesse, who was to testify at Mr. Heber’s subsequent trial.

Normally, the details of a no-contact order would be recorded twice by EMDC corrections officers, both in the Offender Tracking Information System and on Mr. Herber’s Unit Notification Card, in order to keep incompatible inmates apart. EMDC corrections officers failed to take either step.

As a result of this failure, there was no warning when Jesse was admitted to the EMDC following his arrest. As he was being escorted to Unit 5 Left, the same unit where Mr. Heber was housed, Jesse was told by a corrections officer that the inmates have their own rules and that he ought to follow them.

Shortly after he arrived at Unit 5 Left, Jesse was told by other inmates that he had to shower. As he had been instructed by the corrections officer, Jesse followed this ‘rule’. It was in the shower that Mr. Heber, backed up by at least three other inmates, viciously assaulted Jesse, who suffered fractures to his nose, cheek, jaw, and orbital bone. Jesse was then forced to shower and to rejoin the other inmates in the unit’s day room area, where he sat at a table and drifted in and out of consciousness.

While Jesse propped himself up against a table, logbook entries indicated that 2 security checks were conducted. Whoever did the purported “security checks” failed to notice that Jesse had been beaten and injured. It was only after Jesse was assaulted in a second incident, this time in the dayroom area, that corrections officers finally intervened. Even then, corrections officers called Jesse a rat and intimated that he deserved his beating.

As a result of his beatings, Jesse suffered both physical injuries that eventually healed and psychological injuries that the court found to be “serious and permanent.”

A Lesson for Us All

The Honourable Mr. Justice George found that, in encouraging and fostering the violence Jesse suffered, the conduct of the corrections was “despicable”. The state has a duty to protect inmates in its care, including a “moral obligation to show humanity and treat everyone with dignity and respect.”

We would all do well to heed the Honourable Mr. Justice George’s admonition.

Just because there are consequences for bad behavior, 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.

The criminal justice system failed to protect Jesse, and thus the system that holds us accountable itself had to be held accountable for its failure.

A Lesson for Legal Practitioners

Those who practice, or otherwise have an interest in, constitutional law may find this decision to be of particular interest, as this is a rare example of monetary damages being awarded for a breach of an individual’s Charter rights.

The Honourable Mr. Justice George held that both Jesse’s right to life, liberty, and security of the person under section 7 of the Charter and his right not to be subjected to any cruel and unusual punishment under section 12 of the Charter had been violated.

The test recognized by the Supreme Court of Canada for a violation of section 12 of the Charter is whether the state’s action is “so excessive as to outrage standards of decency” (R v Smith, [1987] 1 SCR 1045). In Jesse’s case, while the mistake of failing to record Mr. Heber’s no-contact order was unintentional, both that mistake and the consequences thereof “should cause outrage and shock in the community.” Even an unintentional act can give rise to Charter damages in the right (or wrong) circumstances.

In regard to Jesse’s section 7 rights, the actions of the corrections officers were found to be “arbitrary and not in furtherance of any legitimate objective.” Corrections officers at the EMDC crossed a line by encouraging Jesse to follow the inmate’s rules, by verbally abusing and taunting Jesse, and by failing to provide adequate supervision or to conduct appropriate security checks. The Honourable Mr. Justice George found the corrections officers’ behavior to be “outrageous”, in “bad faith”, and “not in furtherance of any legitimate objective.”

This case should serve as a wake-up call. The state has a duty to protect those who are in its charge, and its agents cannot abrogate that duty. The Canadian Charter of Rights and Freedoms protects all Canadians, including those who are incarcerated, and it is a violation of the rights guaranteed to all Canadians for corrections officers to encourage and foster a culture of violence among inmates in this country’s prisons.