Is a serial rapist entitled to privacy re his crimes?

In this article, you will get an idea of what goes on in a prison.

Please note that when I refer to Mr. Subbiah making arguments in his hearing, it is really his lawyer that made the arguments at the hearing.

Selva Kumar Subbiah who is also known as Richard Subbiah was a prison inmate at the Kingston Penitentiary in Ontario. When the penitentiary closed down, he was transferred to another penitentiary.   He has been an inmate for some 20 years and will not be released until the completion of his full sentence (24 years, 9 months, 1 day) on January 29, 2017.  Upon his release he is to be deported to Malaysia where he was born.

Subbiah was convicted on two separate occasions for multiple counts of sexual assaults and other violent offences.  His offences include those in which Subbiah would encounter women, drug them with what is colloquially known as a “date rape” drug, and then sexually assault them. 

He was charged in 1990 and later he pleaded guilty to over seventy offences including twenty-six counts of sexual assaults and twenty-seven counts of administering a noxious substance he gave to over thirty victims. There were a substantial number of other charges which were either not proceeded with or dropped as a result of his guilty plea.  The initial charges for which he was convicted arose in 1992.  When the police were able to make further investigations, Subbiah was charged with an additional series of sexual assaults and those charges were dealt with earlier in 1997.  Again, Subbiah pleaded guilty to a number of those offences. He would promise the women employment in modeling and soon after, secretly drug them so that he could rape them. He was even violent with his wife by beating her, throwing her down the stairs, and discharging a starter pistol against her back causing painful burns. He even threatened her of being mauled by wild animals.  This human monster was deserving of punishment and during the sentencing, the trial judge said in part; “Your behaviour was so disgusting and so vile that no punishment ascribed by this court would do justice to your victims.”

The aggregate sentence that he received was in excess of 24 years.  He has served most of his entire sentence at the Kingston Penitentiary. At the time of this writing, he is now an inmate at Bath Institution that is a very maximum security prison in Ontario.  

In that prison there were various units where inmates were housed that are  called ranges.  A number of those ranges were reserved for high profile offenders who may be subjected to physical abuse by other inmates.  While Subbiah had been in and out of segregation ranges during the course of his time at Kingston Penitentiary, he had spent a large amount of time in the general population of the prison. That was most unusual since convicted sex offenders are generally attacked and sometimes murdered by other inmates while in the ranges of the general prison population.  I am surprised that the prison authorities permitted him to be in that part of the prison amongst the general prison population.

In 2008, the National Parole Board, as it was then called and now called the Parole Board of Canada (“PBC”), was required to hold a hearing regarding parole for Subbiah.  In Canada, a prisoner can apply for parole after serving a third of his sentence and generally will be released after serving two-thirds of his sentence unless he is still considered a danger to society.

Subbiah waived his right to attend the parole hearing.  Thus, Subbiah’s parole consideration proceeded by way of a “paper hearing”.  In a decision dated December 9, 2008, the PBC determined that Subbiah was not a candidate for statutory parole and would have to serve the remaining part of his sentence in prison.  The decision which was in writing described Subbiah’s criminal history and many details of his sexual offences.  The decision also included details from psychological reports.  Those reports indicated Mr. Subbiah’s denial and minimization of his offending activities, his lack of victim empathy, and his substantial degree of indifference towards the consequences of his offending behaviour.  The parole decision concluded that Subbiah was at a high risk of sexual and violent recidivism.

  

Soon after the parole decision was issued, in February 2009, a crime reporter at the Kingston Whig-Standard, Mr. Robert Tripp, made an application to the PBC for release of the parole decision regarding Subbiah pursuant to section 144 of the Corrections and Release Act (CCRA) that  allows for a “person who can demonstrate a legitimate interest in a case” to request disclosure of individual parole decisions. Such persons include members of the media. The PBC excised some portions of the Decision and forwarded a copy to Mr. Tripp on February 12, 2009.  In turn, Mr. Tripp published the Decision on an internet site called CanCrime.com which is a blog that deals with crimes and prisons. Subbiah only learned that the Decision was published online when he was notified by his wife. 

Then on May 14, 2009, Subbiah was attacked by two inmates who managed to block open a door so that it could not be locked.  These inmates, a McPhail and Martin, stabbed Subbiah six times.  Correctional Officers responded to the assault within one minute. Subbiah sustained six superficial stab wounds during the attack, along with cuts, scrapes and bruises to his head, neck and body.  He was initially treated at Kingston Penitentiary, then transferred to Kingston General Hospital, but was released back to the penitentiary the same day. 

 Subbiah then brought an action in a Superior Court for breach of privacy and negligence against both the Crown (federal government) and more specifically, the PBC and Correctional Services Canada (CSC) (collectively “the Crown”).  As against the PBC, he alleges that they wrongfully released the Decision of his parole application to Mr. Tripp who posted it on the internet.  Subbiah claims that this was a breach of his privacy which did not accord with section 144(2)(a) of the CCRA, which provides that information in parole decisions will not be disclosed where it “could reasonably be expected to jeopardize the safety of any person”.  Subbiah alleged that the PBC’s release of the Decision led to other inmates at Kingston Penitentiary obtaining information about his criminal history, which in turn prompted the attack against him on May 14, 2009.  He maintained that this chain of events constituted a causal connection between the PBC’s release of the Decision and the eventual attack and injury that he suffered.

Internet use by prisoners in prisons allows inmates to communicate with the outside. Much like the use of telephones in prisons; the use of the internet under supervision, for various purposes, is approved in 49 U.S. correctional systems and five Canadian provinces including Ontario where Subbiah was imprisoned.  I don’t think inmates accessing another inmate’s parole decision is permitted but the guards don’t watch prison inmates using the Internet every minute.

In his claim against CSC, Subbiah alleged that they were negligent by not taking steps to protect him from the planned attack at Kingston Penitentiary.  In addition to the internet publication of the Decision, Subbiah alleged that the May 14, 2009 attack should have been anticipated because he was at high risk among the inmate population. 

I don’t know whose decision it was to put this man into the general prison population in the first place but if he had any sense at all, he could have demanded that Sabbiah be returned to protective custody. He should have been aware of the risks Sabbiah was facing as a convicted sex offender while mingling with the general prison population.

Specifically, he alleged that another inmate, Mark Curry, wanted revenge against him because Subbiah had previously reported a rumoured affair between Mr. Curry and a female Correctional Officer.  He also alleges that CSC was aware that the Parole Decision was circulating among the inmate population, thereby placing him at a heightened risk. If that is so, the prison authorities should have taken him out of the general prison population and put him in protective custody.

Subbiah claimed damages in the amount of $15,000.00 for general damages; punitive damages of $35,000.00; and a finding that his Charter rights had been violated.

During the course of the trial eight witnesses were called.  Subbiah gave evidence on his own behalf as did Michael Peteigney, a fellow inmate from Kingston Penitentiary. On behalf of the Crown, the witnesses were Nikki Smith, Jan Looman, Greg Van Rossem, Tim O’Hara, Miguel (Mike) Costa, and Lisa Blasko.

Evidence of Richard Subbiah

During the course of his time in Kingston Penitentiary, Subbiah worked as a dome cleaner.  The dome, or rotunda, is the central part of Kingston Penitentiary, and the various ranges extend like spokes of a wheel from the central dome.  Subbiah worked afternoons and evenings in the dome, clearing garbage, washing the floors and stripping and cleaning the floors from time to time. He would be under watch of the Dome officers at all times so he certainaly was in no danger from inmates while working there. During this particular time, he was also sleeping in the protective custody range.

Many years ago, there was an inmate in an Ontario provincial maximum security prison who was convicted of raping his four-year-old daughter. His sentence was two years less one day but doubled so he would be spending four years less two days in that prison. He was given the job of cleaning the chapel in the prison and remained in the chapel all day and in the evenings (generally alone) until he was returned to his cell to sleep.  They didn’t even put him in the range where the homosexuals were kept.  That certainly is what one would refer to as protective custody.

On May 14, 2009, Subbiah was assaulted by two inmates, McPhail and Martin.  He said he knew one of them a bit but did not know the other man.  Both of these inmates were housed in the Upper B range, a protected custody range for inmates who do not want to be a part of the general prison population. 

I am glad that the prison authorities had eventually taken my suggestion seriously about where the protective custody range was to be. Back in the late 1960s, I was invited to go to the Kingston Penitentiary and make suggestions on any changes I might recommend. I noticed that the protective custody range was right next to the Dome and was always unlocked because a guard was standing next to the entrance. I recommended that it be locked. My suggestion wasn’t followed and in 1971, the prisoners rioted and those in the unlocked protective custody range were grabbed by the inmates and tortured with knives. One of those prisoners died from his wounds.   

Subbiah said that it was not his duty to work in the Upper B range, but a Correctional Officer asked him to take some cleaning supplies to that range.  When he did, Martin, who had just entered the dome area from the Upper “B” range, blocked the door so that it remained open and the Correctional Officer in the dome, a Ms. Alexandra McCormick, could not lock it.  This afforded an opportunity for Mr. McPhail and Mr. Martin to attack Mr. Subbiah. 

As said earlier in this piece, Subbiah received six superficial cuts and a number of bruises in the course of the assault.  He was taken to Kingston General Hospital for review where CAT scans and other tests were performed.  He did not require stitches for any of his wounds.  He was released from Kingston General Hospital within a few hours and returned to the Kingston Penitentiary Health Centre for a further 24 hours.  He received Tylenol 2 and 3 for pain relief and eye drops.  He was told to eat soft food for a couple of days.

When he returned to his cell on May 15th, 2009, Subbiah was segregated in his unit.  He was locked in his cell and did not have access to the general prison population, nor they to him.  He said he was terrified even though he was out of reach of the other inmates.  

Subbiah alleged that there was a connection between the online publication of the Parole Decision by Mr. Tripp, the reporter from the Kingston Whig-Standard and Mr. Trip’s website entitled CanCrime.com and the assault which he suffered on May 14, 2009. 

Subbiah said that he never saw the Internet site because inmates at Kingston Penitentiary do not have access to the internet.  I find that strange because prisoners do have access to the internet but perhaps not those in the Kingston Penitentiary.

He said he was told about the Internet posting by his wife, and she read some of it to him.  He stated that his wife suffered repercussions at her work as a result of the Decision being posted online.  

Subbiah conceded that, unlike the Internet, newspapers are accessible by inmates at Kingston Penitentiary.  He was also aware that a television program about him and his crimes was accessible to inmates at Kingston Penitentiary.  He conceded that an inmate’s criminal background was not necessarily a secret within Kingston Penitentiary.

Subbiah did not see the Internet version of the Decision denying his parole.  However, after hearing about the online publication of the Decision from his wife, he said he wrote a letter to Greg Van Rossem, his parole officer, which was copied to various other individuals including Mike Costa, a Security Investigation Officer (SIO) at Kingston Penitentiary.  The letter, dated March 6, 2009, expressed Mr. Subbiah’s concern that his parole information was provided to Mr. Tripp.  Subbiah asked CSC to undertake an internal investigation to determine how this information was released.  Nowhere in the letter did Mr. Subbiah indicate that other inmates might be in possession of a copy of his parole decision. That is probably because he didn’t know if it was.  On cross-examination Subbiah claimed that he was unaware that his Decision was circulating amongst the inmate population at the time he wrote the letter to his parole officer. Keep in mind that the inmates may have read about it by reading the newspaper.

Subbiah gave evidence at length about having had meetings with both Mr. Van Rossem and Mr. Costa regarding the release of the Decision.  He said that he asked the CSC investigator how it came to be released.  He gave evidence that both Mr. Van Rossem and Mr. Costa admitted that his “privacy had been maliciously breached” and that there were “foreseeable consequences” for both Subbiah and his wife.

I agree with those men that Subbiah`s privacy had been breached. It seems to me that before newspapers are distributed to the inmates in a prison, sections giving particulars about other inmates in the prison should be removed.

During the cross-examination relating to both his letter and any subsequent discussions regarding the Internet posting, Subbiah became evasive in his answers.  Indeed, a number of his answers on cross-examination varied from the contents in his affidavit.  A few examples of this are as follows:

Subbiah was asked specifically whether he ever told anyone that he was concerned for his safety.  On this issue he was extremely evasive and only answered, “I was very very concerned”.  Moreover, he did not ask to be segregated from the general prison population prior to the assault.  Keep in mind that he was not attacked while he was in the ranges for the general population.

In Subbiah’s affidavit, he claimed that on March 12, 2009, other inmates made derogatory and threatening comments to him as a result of the circulation of the Decision.  He also claimed that, on previous occasions when his crimes had been publicized in the media, the CSC promised that it would protect his security.  Therefore, he expected that the CSC should have segregated him from the general prison population when details of the March 12, 2009 threats came to light.

However, on cross-examination, Subbiah was asked if he notified CSC about the threats he received on March 12, 2009.  He maintained that he told his parole officer, Mr. Van Rossem, stating, “I would definitely have had this conversation with my parole officer, absolutely”. However, he also admitted that when his crimes had been publicized in the past, the CSC had never removed him from the general prison population, or from his dome cleaner position.  The only times he was “locked up” or segregated came when he specifically requested as much.  Yet, he acknowledged that he did not request being segregated from the general population after receiving threats in March 2009, or after he received information that Mr. Curry was upset with him in April 2009.

Subbiah also claimed that there was a breach in security directly prior to the assault.  He said that Correctional Officer McCormick was on duty, observing the Upper “B” range entrance, but somehow the door to that range was unlocked and propped open by one of his assailants.  To him, this suggested a breach of security protocol, since barrier doors are to remain locked unless overseen by a Correctional Officer who is able to maintain static security. 

In his affidavit, he also stated that Officer McCormick banged on the glass of the observation bubble to encourage Mr. Martin to remain in his range, and that she was unable to engage the lock after Mr. Martin propped the range barrier door open.  During the course of his cross-examination, Subbiah admitted that he did not have personal knowledge of how Officer McCormick behaved that day, or how exactly, the door to the Upper “B” range was unlocked and propped open.  In fact, he acknowledged that much of his recollection of what transpired with regards to Officer McCormick that day is his recitation of what was in her observational report, and the subsequent investigative report disclosed in this lawsuit, as opposed to any direct recollections.

  

Following the attack, Subbiah complained that he suffered from anxiety, mental anguish and stress, and that he no longer felt safe in a group of inmates.  He also said that he had developed nightmares.  When asked whether he had reported this to anybody, he said he had reported it to a Mr. Eastabrook, a psychology nurse at Kingston Penitentiary.  He was given medications, and he assumed he had post-traumatic stress disorder (PTSD).  He testified that he saw counsellors frequently and believed that the medications he was taking were for a diagnosed psychological disorder.  There is no medical evidence in this case regarding his state of mind following the assault.

In another part of his examination, Subbiah conceded that after returning to Kingston Penitentiary and being moved to the Lower “G” range, he sought to become the range representative.  When asked why he would do so in light of his anxiety and fear of groups, he indicated that these were groups of inmates whom he knew and therefore felt comfortable with.  He indicated that he never took recreation time while he was in the Lower “G” range.  In another exchange, when asked about being a part of a group program for sexual disorders at the Regional Treatment Centre (RTC), he said that this group was comfortable with him because all of the other six or seven inmates who were participating had similar criminal backgrounds and were dealing with similar issues.

When asked whether or not he was aware that inmates in the institution would share information about other inmates, Subbiah admitted that there were a lot of rumours going around. 

On the basis of all of his evidence, the judge hearing his case felt that such knowledge would be shared and exchanged among inmates as to the crimes for which they were incarcerated, especially for an inmate like Subbiah who had been in the institution for approximately 15 years at the time of the assault.  He also found that Subbiah was evasive with respect to his testimony and the judge believed that at times, Subbiah had endeavoured to overstate his case.  Where his evidence conflicted with evidence of other witnesses of the Crown, the judge preferred the evidence of the other witnesses.

Was CSC negligent in failing to protect Subbiah from attack?

Subbiah argued that CSC was negligent because CSC staff failed to take reasonable care to protect his safety when they knew or ought to have known his safety was in jeopardy.   His position was that there is a duty on prison officials to ensure the safety of inmates. 

There is no absolute liability on prison authorities to prevent all harm to inmates since liability generally follows only where correctional authorities have actual knowledge of potential harm.  In other words, harm must be reasonably foreseeable.  Since he had mingled with inmates in various ranges previously to the attack and not harmed, harm to him was not easily foreseeable.

The penitentiary would breach its duty of care to an inmate if it failed to take reasonable steps in both static and dynamic security once “pre-indicators of violence” against the inmate where known.  Thus, CSC can be held liable where there is a failure to provide reasonable protection against the actions of other prisoners where CSC has notice of a risk to an inmate’s safety.  For this reason, the key issues in the hearing were whether there were pre-indicators of violence, whether CSC knew or ought to have known that Subbiah was in danger, and whether reasonable steps were taken to ensure his safety.

Subbiah alleged that CSC had knowledge of pre-indicators of violence in his case, yet failed to provide adequate security in light of the risks.  The Parole Decision information had been seen by inmates in Kingston Penitentiary, and Subbiah had alerted a prison official, Mr. Van Rossem of this fact in March 2009, about two months prior to the attack.  While Subbiah did not specifically request protection, the CSC staff either knew or ought to have known that the distribution of the Decision detailing Mr. Subbiah’s offences would put him at risk. That in my opinion is a valid point. Even if he didn`t ask for protection and even if he didn’t want protection from the other inmates, he should have been removed from the other inmates for his own safety.

It was argued that the fact that information about the circulation of his Parole Decision was not passed on to the prison authorities indicates a breach in the necessary security.  As corroboration for Mr. Subbiah’s safety concerns, CSC staff also knew that Subbiah had requested protective segregation on multiple occasions, asked to meet with Mr. Curry, and inquired about a range change.  In the face of this knowledge, it is alleged that CSC allowed Subbiah to enter a transition range, Upper “B”, and come into contact with other inmates who were intended to be segregated.  Section 70  of the CCRA requires that all reasonable steps are taken to ensure that the penitentiary and its environment are safe for inmates and staff, regardless of whether an inmate complains about a risk.  The fact that the information in the Parole Decision was previously available public information does not relieve CSC of the duty to ensure security. I have to agree with that position of Subbiah.

Subbiah also maintained that CSC’s static security was inadequate, as evidenced by the unlocked barrier door to the Upper “B” range.  It was unlocked despite the fact that Correctional Officers knew that Subbiah was attending near the Upper “B” range to deliver supplies, and the area outside the Upper “B” range is a restricted space.  Either the barrier door to Upper “B” should not have been released, or, Correctional Officers should have prevented Subbiah from entering the dome.  Subbiah alleges either an Officer negligently released the barrier door to the Upper “B” range; an Officer negligently allowed Subbiah to enter the dome with knowledge that inmates from the Upper “B” range had breached the area; or, an officer was negligent in allowing Subbiah into the dome prior to surveying the area to ensure its safety.  Officer McCormick is said to be negligent opening the barrier door. Those are reasonable suggestions, in my opinion.

Subbiah also argued that no Correctional Officers present at the time of the assault, including Officer McCormick, testified at the hearing, so a negative inference should be drawn against CSC. Not a good argument because his lawyer could have subpoenaed them to testify at the hearing.

The Crown maintained that the evidence suggested that CSC was unaware of any risk to Subbiah prior to the assault and therefore the assault was not foreseeable.  Thus, CSC’s actions were reasonable prior to the assault. The Crown conceded that CSC has a duty of care, but argued that the CSC met its standard of care to Mr. Subbiah, and thusly his claim of negligence must fail. 

The Crown argued that the legal question is whether, in the circumstances and on a balance of probabilities, the harm to Subbiah was reasonably foreseeable so that the CSC knew or ought to have known of the risk of danger. The Crown maintained that the May 14, 2009 attack was not foreseeable, and therefore there is no breach of the standard of care for a “quick, planned and violent attack.  A prison is an inherently dangerous environment, and the CSC cannot guarantee each inmate’s safety, or protect inmates from unpredictable dangers.

I agree that prisons are inherently dangerous but the prison staff should guarantee the safety of prisoners, such as child molesters, rapists and snitches who are susceptible to assaults.  

In the prison context, pre-indicators of violence will satisfy the requirement of reasonable foreseeability, but in this case the Crown maintained that there were no such pre-indicators.  For example, security intelligence at Kingston Penitentiary had no information that Subbiah’s parole decision was being distributed amongst inmates, and even if they did it would not have caused concern because the information in the Parole Decision was publicly available in the prison.

That argument is ridiculous. Surely the prison staff had to know that if the inmates read the newspaper and specifically about the parole Decision, they should have realized that since Subbiah was in their prison, his safety would be at risk. That is when they should have put him in protective custody, whether or not he was agreeable to that change in the ranges.

The Crown noted that an inmate, particularly one as well-versed with the prison environment and culture as Subbiah, would be expected to warn the CSC staff if there was a risk of danger.  In the past, when Subbiah felt his safety was at risk, he made a protective custody request.  He made such a request in March 2008, and security intelligence took the requisite steps to ensure his safety.  Yet, Subbiah made no such request after learning that the Parole Decision was posted online.  Indeed, Ms. Blasko, Mr. Costa, and Mr. Van Rossem all confirmed that Subbiah never advised them that he was at risk or in danger, or that he had reason to believe that the Parole Decision was circulating among inmates. Moreover, Subbiah never indicated that he felt at risk due to Mr. Curry, and the CSC had no other information to suggest that this might be the case. If that is true, then what followed was Subbiah’s fault.

The Crown argued that the CSC took reasonable steps, in both static and dynamic security, to prevent an assault against Subbiah. It also strongly argued, that the CSC’s security measures need not be perfect or infallible.  Rather, they must be adequate and reasonable, taking the entire context of the event into account.  I agree with that argument.

Considering the entire context of the attack on Subbiah, the Crown argued that the CSC’s measures were adequate and reasonable.  There was nothing to suggest that an Upper “B” inmate presented a risk to Subbiah.  Once the “quick, planned and violent” attack occurred, CSC Officers responded in less than one minute.  Officer McCormick had a duty to remain at her post and face the Upper “B” range; she did so, and radioed for assistance immediately upon seeing the assault.  There was no evidence that the Upper “B” range door malfunctioned.  Overall, there is no failure by the CSC to provide reasonable static and dynamic security.  Thus, CSC did not breach the standard of care.

Even if CSC breached the standard of care owed to Subbiah, the Crown insisted that there was no causal link between the breach and his injuries, because Subbiah suffered no more than minor and superficial cuts and bruises.  If he did suffer a greater injury, it is not causally linked to any breach by the CSC.  There is no evidence that the Decision was circulating amongst other inmates prior to the assault, let alone that its distribution two months earlier precipitated the assault.  Therefore, there was no causal link between the distribution of the Decision and the attack and there is no causal link between any alleged breach in static or dynamic security and the assault.  The evidence suggests that the assault was caused either by Subbiah’s problems with Mr. Curry, or his selling of cleaning supplies to inmates which he was not permitted to do.

Finally, while Subbiah argued that an adverse inference should be drawn against the Crown because Correctional Officer McCormick was not called as a witness, the Crown submits that such an adverse inference can only be drawn where the plaintiff has established a prima facie (apparent) case, and Subbiah had failed to do so.  Regardless, the Crown called six witnesses, including Ms. Blasko who had received a copy of Ms. McCormick’s observation report from the time of the assault.  Ms. Blasko considered this report to be truthful, and she made use of it when supervising the drafting of the investigation report about the assault.  Therefore, any evidence that Ms. McCormick could have advanced was provided by Ms. Blasko.  In addition, nothing prevented Subbiah from calling Ms. McCormick as a witness.

Judge’s Decision in his words

With respect to the claim of negligence against CSC, I find that there was no negligence. Both parties accept that CSC owed Subbiah a duty of care.  Both also agree that if pre-indicators of violence existed, or if violence against Subbiah was otherwise predictable, then CSC was obliged to take reasonable steps to ensure his safety.  

The evidence of the various CSC officers all indicates that assaults are fairly frequent at Kingston Penitentiary and that it is a “dangerous place”.  However, there was no indication that an assault on Subbiah was pending and there was no security intelligence information to that effect.  Significantly, Subbiah did not make it known to anyone that he might be the subject of an attack.  It does appear he may have had some information about another inmate, Mr. Curry, being upset with him.  However, he did not report it but simply sought to meet with Mr. Curry.  Several of the reports indicate that Subbiah had a private conversation with Mr. Curry prior to the assault. 

As well, Subbiah made no comment to the security intelligence people that he felt his safety was imperilled.  The evidence shows that inmates in the Upper “B” range are considered to be at risk from the general inmate population, of which Subbiah was part.  There is no evidence that Subbiah had a pre-existing antagonism with either of his assailants, so it appears that “inmate incompatibility”, a common predictor of risk or violence, was not an issue Absent convincing evidence of a foreseeable risk to Subbiah, or any pre-indicators of violence, the CSC could not have anticipated that inmates from the Upper “B” range posed a threat to him.

To be foreseeable, there must be a reasonable prospect that the event will occur.  In Bastarache v Canada, 2003, Madam Justice Leyden-Stevenson described the duty owed to inmates by prison authorities as follows:

“The prison authorities owe a duty to take reasonable care for the health and safety of the inmate while in custody. In addressing the duty of care, regard must be had to the circumstances surrounding the incident. An important consideration in the foreseeability of risk is the likelihood of the occurrence of the event giving rise to the risk. The issue is not whether there is a duty of care, but whether the acts or omissions of the defendant fall below the standard of conduct of a reasonable person of ordinary prudence in the circumstances.”  unquote

  

The judge asked himself, “Was the attack on Subbiah foreseeable in all of the circumstances?  In my view it was not, for a number of reasons. First, significantly, an investigation following the assault indicated that Subbiah was targeted because he was selling cleaning supplies to inmates.  Even after the event, Subbiah did not tell anyone that he blamed the release of the Parole Decision for his assault.

Second, at the time of the assault, Subbiah was carrying out his duties as a dome cleaner and taking supplies to the Upper “B” range.  At the same time, Mr. Martin was carrying out his duties as a cleaner on the Upper “B” range.  The officer observing the situation acted with dispatch as soon as she detected that Mr. Martin had blocked open a door which could not be relocked.  Within a minute Correctional Officers responded and took control of the situation.  Given the dangerous environment in which these inmates live, this response to a quick, violent, unanticipated assault was entirely appropriate. 

Third, I accept officer Blasko’s evidence that there were no pre-indicators of violence and that the officer in charge acted appropriately.  Therefore, I find that security measures were adequate and reasonable in the circumstances. On these facts, CSC met the standard of care owed to Mr.Subbiah. 

Was the PBC’s disclosure of Subbiah’s Decision negligent?

Plaintiff’s (Subbiah) Submissions

According to Mr. Subbiah, the decision of the Parole Board of Canada (PBC) to disclose the Decision to Mr. Tripp constitutes negligence because: 1) the PBC owed a duty of care to Mr. Subbiah; (2) the PBC failed to meet the requisite standard of care; and (3) the PBC’s failure to meet the requisite standard of care caused injury to Mr. Subbiah.  Specifically, he contends that the PBC’s release of the Decision contributed to his vulnerability to attack, and so the PBC is contributory negligent.

  

Further, Subbiah submitted that the PBC owed a duty of care because there is a relationship of proximity between him and the PBC.

Subbiah also argued that the harm Subbiah suffered as a result of the PBC’s disclosure was a foreseeable consequence, since all parties acknowledge that sexual offenders are at greater risk within Canada’s penal system.  Further, subsection 144(2)(a) of the CCRA compels the PBC to withhold information that could jeopardize any person’s safety.  Mr. Tripp was a member of the media, the PBC ought to have foreseen that the Parole Decision would be published.  The PBC also should have known that published material, whatever the medium, can be obtained by inmate populations.  Thus, the harm to Subbiah occasioned by the PBC’s disclosure of the Parole Decision was foreseeable.  Whatever review of the circumstances that the PBC undertook was inadequate.  As I mentioned earlier, the section in the paper that described the Parole Decision with reference to Subbiah should have been cut out of the paper.

The next problem concerns the proximity between the PBC and  Subbiah who   submitted that his circumstances are analogous to other established categories of proximity where a government department, in this case the PBC, is entrusted with duties unique to the government.  Proximity in tort law includes those persons who could suffer harm by the acts of another if that harm was reasonably foreseeable.  Moreover, while section 8 of the Privacy Act, RSC 1985, c P-21, may allow for the disclosure of personal information, such disclosure is subject to any other Act of Parliament, and the CCRA establishes that the PBC has a legislated duty to withhold information that could pose a risk of harm to anyone, including Subbiah.  Accordingly, he submitted that a prima facie duty of care has been established, so the onus shifted to the PBC to negate that duty.

Regarding a breach in the standard of care and causation, Subbiah relied on Mr. Peteigney’s evidence.  If Mr. Peteigney’s evidence is accepted, then it is established that the Parole Decision was circulating in Kingston Penitentiary prior to his assault on May 14, 2009, and that inmates were placing bets on when Subbiah would be attacked.  This was a breach of the prison’s dynamic security, and it was caused by the PBC’s failure to alert CSC that the parole decision was being released to a media member. 

While PBC claims that it has no obligation to alert CSC when a parole decision is released, Subbiah argued that the PBC’s present practice contravened s 144(2)(a) of the CCRA in the specific context of this case, and so liability must be found.  Subbiah noted that a finding of such liability will not open any “floodgates”, because such a precedent will only apply where the PBC fails to comply with the CCRA.

Crown’s Submissions

The Crown submitted that Subbiah had failed to prove his allegations of negligence by the PBC. Subbiah had failed to establish that a duty of care exists between him and the PBC.  There is no proximate relationship between them, since the duty of care proposed by Subbiah would be incompatible with the PBC’s mandate to balance the interests of offenders with various other social interests. 

Further, the Crown argued that there was no evidence of any interaction between the PBC and Subbiah in relation to the disclosure of the Parole Decision.  Even if there was a proximate relationship, the Crown argued that there are multiple residual policy reasons exist to negate any prima facie duty of care. To establish liability against the PBC for complying with its statutory mandate to release parole decisions to interested parties would open the floodgates, leaving PBC liable in tort for all of its decisions.

Even if a duty of care existed, the Crown submitted that there was no breach of the standard of care because the PBC acted in accordance with the CCRA and the Privacy Act. The PBC also acted in good faith, so even if there was an error in the exercise of its statutory duties, the PBC cannot be said to have breached the applicable standard of care.

In my opinion, I think the PBC should inform the prison authorities of their pending public release of their decisions so that the prison staff can place the inmates in in need of protection in protective custody.  

Finally, even if there was a breach of the standard of care, the Crown submitted that there is no causal link between the release of the parole decision to Mr. Tripp and the assault. There is no evidence that the parole decision was circulating in Kingston Penitentiary prior to the assault, and even if there was, the security situation would be unchanged because the information in the decision was publicly available. Therefore, a negligence claim against the PBC must fail.

Judge’s final decision

"At the outset it is helpful to set out a similar decision as refined by the Supreme Court wherein the Supreme Court observed:

“We suggest that at this stage in the evolution of the law, both in Canada and abroad, the rule is best understood as follows.  At the first stage of the test, two questions arise:  (1) was the harm that occurred the reasonably foreseeable consequence of the defendant’s act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here?  The proximity analysis involved at the first stage of the test focuses on factors arising from the relationship  between the plaintiff and the defendant.  These factors include questions of policy, in the broad sense of that word.  If foreseeability and proximity are established at the first stage, a prima facie duty of care arises.  At the second stage of the  test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care.  It may be, as the Privy Council (federal cabinet) suggests that such considerations will not often prevail.  However, we think it useful expressly to ask, before imposing a new duty of care, whether despite foreseeability and proximity of relationship, there are other policy reasons why the duty should not be imposed.

Reasonable foreseeability of the harm must be supplemented by proximity.  The question is what is meant by proximity.  Two things may be said.  The first is that “proximity” is generally used in the authorities (previous court cases) to characterize the type of relationship in which a duty of care may arise.  The second is that sufficiently proximate relationships are identified through the use of categories.  The categories are not closed and new categories of negligence may be introduced.  But generally, proximity is established by reference to these categories.  This provides certainty to the law of negligence, while still permitting it to evolve to meet the needs of new circumstances.

Mr. Subbiah relies exclusively on Mr. Peteigney’s evidence to establish that the Parole Decision was being passed between inmates at Kingston Penitentiary in the time leading up to the May 14, 2009 attack. Yet, for the reasons described above, Mr. Peteigney’s evidence is wholly unreliable and must be completely discounted.  Therefore, there is no evidence to support the allegation that the Parole Decision made its way into the hands of inmates at Kingston Penitentiary.  Accordingly, there is no basis for Mr. Subbiah’s allegation that the release of the Parole Decision was a proximate cause of his assault, and therefore no basis for his claim of negligence against the PBC.

Damages

As I have found (a) that there is no causal connection between the stabbing and the release of the Parole Decision; and, (b) that there is no negligence on behalf of either the PBC or CSC, Subbiah is not entitled to damages.  The action is dismissed Even if there was some causality or negligence any damages awarded would be purely nominal. For the reasons given, the action is dismissed with costs.” unquote

Good luck trying to collect costs from an inmate in prison who is going to be deported when he is released.  

I think there are three lessons to be learned with respect to this case. They are:

1.     Prison inmates who have been convicted of sexual crimes or are child killers or are known as snitches, should automatically be placed in protective custody ranges and remain in those ranges until they are released from prison. No exceptions should be made.

2.       Anything in a newspaper or magazine that includes articles about any inmate currently in a prison should be cut out of the newspaper and/or magazine before they are distributed to the inmates.

3.       Parole decisions that are publicized shouldn’t be available to the news media or the Internet until the prison authorities are notified so that steps can be undertaken to protect the prisoner who is the subject of the PBC disclosure is placed in protective custody if he is a child molester or child killer,  a rapist or a snitch.