Inmate-on-inmate assaults are sadly common in Canadian prisons. In some cases, victims of inmate assaults may be able to successfully sue the Canadian or Provincial Crown and obtain compensation for their injuries. In this post, I will discuss the Government’s liability for inmate assaults and outline what you should do if you or a loved one has been injured by inmate-on-inmate violence.
The Administration of Canadian Prisons
In Canada, prisons are operated by either Federal or Provincial authorities. Federal prisons hold inmates sentenced to terms lasting two or more years and are operated by the Correctional Service of Canada (‘CSC’). On the other hand, Provincial prisons house individuals serving sentences of less than two years, as well as those awaiting trial or sentencing. Ontario’s Provincial prisons are managed by the Ministry of Community Safety and Correctional Services (‘MCSCS’).
Crown Liability for Inmate Assaults
Both the Federal and Provincial Crowns may be held vicariously liable to inmates for injuries sustained in a prison assault. Section 3(b)(i) of the Crown Liability and Proceedings Act imposes liability on the Federal Crown for “…a tort committed by a servant of the Crown.” A similar provision applies to the Provincial Crown under section 8(1)(a) of Ontario’s Crown Liability and Proceedings Act.
Importantly, this legislation does not mean that the Crown is liable each time an inmate is assaulted. Rather, liability exists only where the Crown’s employees, such as correctional officers, breach the duty of care by they owe to prisoners by… “[doing or failing] to do something, thereby creating a foreseeable risk of harm to the inmate” (Bruno v. Dacosta, 2020 ONCA 602, paragraph 33).
In the context of inmate assaults, the Crown will be liable for an inmate’s injuries if it was reasonably foreseeable that the injured individual was at risk of violence, and there was a failure to provide reasonable protection to him or her(Carr v. Canada, 2008 FC 1416, paragraph 17). Importantly, if violence is not reasonably foreseeable, such as in cases of spontaneous assaults, the Crown will generally not be liable for an inmate’s injuries (Subbiah v. Canada, 2013 FC 1194, paragraph 76).
What Should you do if you have been Assaulted by another Inmate?”
If you or a loved one have been injured in an inmate assault and wish to commence a lawsuit against the Crown, it is important that you take the following steps:
A. Seek Medical Attention
If you have been assaulted by a fellow inmate, it is crucial that you receive medical attention as soon as possible. Doing so will not only help prevent the development of any serious complications, but it will also create an impartial and timely record of your post-assault injuries.
B. Make a Written Record of the Incident
As soon as possible after the assault, you should create a written record in which you report how and when the assault happened, your injuries, and any conversations you had with prison staff relating to the assault. Lawsuits often take years; creating a written record will help you to keep the details of the assault fresh in your mind.
C. Contact a Lawyer
If you wish to commence a lawsuit, it is essential that you contact lawyer. Legal counsel can assess the strength of your case, help you navigate the process of litigation, and ensure that your claim is filed within the limitation period.
D. Have Someone ‘On the Outside’
It is often difficult for inmates to get in touch with their legal counsel, and vice versa. If you are imprisoned, it is important to select someone, such as a spouse or family member, to facilitate communication between you and your lawyer. This will allow you to receive updates on your case’s status, and other important information, in a timely manner.
If you have been injured in a prison assault and hope to receive compensation it is crucial that you retain legal counsel to help you navigate the legal system, and act as your unwavering advocates. Our firm has extensive experience acting for victims of inmate assaults. If you have been assaulted, we invite you to contact us for a free consultation with one of our lawyers.