



COURT OF APPEAL FOR ONTARIO

CITATION: Walters v. Ontario, 2017 ONCA 53

DATE: 20170123

DOCKET: C60985

Strathy C.J.O., LaForme and van Rensburg JJ.A.

BETWEEN

Jason Clive Walters by his Litigation
    Guardian,
Pearline Samuda
,
Alicia

Wilson
, and Carlton Burke, and Pearline

Samuda, and Jia Alissa Walters, by her Litigation Guardian Alicia
    Wilson, and

Adrian Clive Walters,
and
Alana K. Walters
,
by her
    Litigation Guardian,

Adrian Clive Walters

Plaintiffs (Respondents)

and

Her Majesty the Queen in Right of the Province of Ontario

and John Doe and Tim Doe and Bill Doe and
Toronto Police

Services
    Board

Defendants (Appellants)

Sara Blake, Rita V.
    Bambers and Jeffery Claydon, for the appellant, Her Majesty the Queen in right
    of Ontario

Andrew Camman, Donald R. Fiske and Michelle Arzaga, for
    the respondents, Jason Clive Walters, by his litigation guardian, Pearline
    Samuda, and Pearline Samuda

Heard: October 12 and 13, 2016

Appeal from the judgment of Justice Arthur M. Gans of the
    Superior Court of Justice, dated August 4, 2015, with reasons reported at 2015
    ONSC 4855.

H.S. LaForme J.A.:

INTRODUCTION

[1]

This case concerns the provincial Crowns liability for injuries that one
    or more inmates at a provincial jail inflicted on a fellow inmate. The victim
    alleges that corrections officials, through negligent conduct in the course of
    their employment, facilitated the attack. Jason Walters, the primary plaintiff
    and respondent, was a low-level member of a gang called the Malvern Crew;
    Tyshan Riley was a senior functionary, if not the leader of another gang, the
    Galloway Boyz. At the time of the incident, these two gangs, each of which was
    from Scarborough, were engaged in an ongoing turf war. When Walters arrived
    at the Toronto Jail (the Don Jail) in November 2008, the administration
    placed him in Rileys unit.

[2]

While he was incarcerated at the Don Jail, Walters suffered a severe
    beating from one or more fellow inmates. Walters sued various parties,
    including Her Majesty the Queen in right of Ontario (Ontario) and the Ministry
    of Community Safety and Correctional Services (MCS), claiming damages for
    injuries that he alleged the Don Jails correctional officers (COs) had
    caused by negligently failing to prevent the assault.

[3]

The trial judge held that the Don Jails policy of separating members of
    the same gang negated neither the COs common law duty of care to persons in
    their custody, nor Ontarios vicarious liability for any breach by the COs of
    that duty of care. He found that Riley had directed the assault on Walters, and
    that the COs should have known at the time of Walterss placement that Riley
    was likely to attack members of rival gangs. With the support of those
    findings, the trial judge concluded that the COs were negligent in housing
    Riley and Walters in the same unit, and that their negligence caused Walterss injuries.

[4]

Walters conceded that he was responsible for 15% of the damage that he
    sustained because he did not request placement in protective custody at the Don
    Jail. The parties have agreed to an amount of damages.

[5]

Ontario appeals, asserting that the trial judge erred: (i) in applying
    the duty of care owed by COs to inmates; (ii) in concluding that the COs at the
    Don Jail were negligent; and (iii) in concluding that they caused Walterss
    injuries.

GENERAL BACKGROUND

[6]

Walters was admitted to the Don Jail on November 17, 2008 on gun
    possession charges. The staff of the jails Admitting and Discharge Department
    was aware from Walterss previous incarceration at the Toronto East Detention
    Centre (TEDC) that he was a member of a violent street gang, the Malvern
    Crew, because his card for the Offender Tracking Information System
    ("OTIS") identified him as such. As a result, he was categorized as a
    Security Threat Group (STG) member. More than 90% of the STG inmates were
    street gang members.

[7]

In July 2008, the Don Jail implemented a policy for the management of
    STG inmates. The policy prescribed a process of "numeric balancing"
    of STG members throughout the jail. In particular, the policy required that,
    whenever possible, members of the same gang should be dispersed throughout the
    jail and housed on separate units.

[8]

The on-duty admitting and discharge manager, Steve Aspiotis, placed
    Walters in Unit 3A South (the Unit), which, at the time, housed 39 other
    inmates in 18 cells. He was the only member of the Malvern Crew assigned to the
    Unit. Of the other inmates in the Unit, five were identified as members of STGs,
    including Riley, whose OTIS card identified him as a member of the Galloway
    Boyz street gang.

[9]

The Don Jail staff recognized that inmate incompatibility was part of
    the calculus required to implement the STG policy; they pointed out that non-association
    alerts on the OTIS card would inform placement staff of any inmate
    incompatibility. Riley's OTIS card did not contain a non-association alert
    relating to Walters and Walters's OTIS card did not have any non-association
    alerts.

[10]

At the time when Aspiotis placed Walters in the Unit, he acknowledged he
    was concerned only with complying with the numeric balancing requirement in
    the policy. And, while he had information that clearly identified which other
    inmates belonged to what STG, he paid no attention to any gang rivalries or any
    other factors beyond numeric balancing and non-association alerts that
    might have had a bearing on Walterss placement. In his view, such
    considerations would have been outside the ambit of his mandate under the
    policy.

[11]

Walters made no request to be moved into protective custody, either
    before or after his admission to the Unit, though, once he had entered the
    Unit, he probably knew that Riley was there.

[12]

Between 6:20 p.m. and 7:27 p.m. on November 19, 2008, after the last
    round by the COs, Walters was attacked from behind by a muscular black man. The
    man, perhaps with the assistance of some other inmates, dragged Walters through
    the eastern portion of the Unit to the area of the shower and washrooms. 
    Walters was then beaten and dragged back to the area near the sally port,
    unconscious.

[13]

A CO was summoned to the Unit by one of the inmates at approximately
    7:27 p.m., and Walters was discovered in a prone position, soaking wet and
    unconscious on a wet sheet near the sally port door. A medical alert was
    sounded and Walters was transported to St. Michaels Hospital.

[14]

Walters sustained severe injuries. He was hospitalized in an acute care
    facility until early May 2009, after which he was sent to the Toronto
    Rehabilitation Institute, where he remained for an additional 16 months.
    Walters now suffers from permanent brain damage and acute speech impairment.

THE TRIAL JUDGES DECISION

[15]

The trial judge found that Walterss attack and subsequent injuries occurred
    because Aspiotis breached his duty to take reasonable care for the safety of
    prison inmates under his charge. He concluded that the COs at the Don Jail
    should have known that placing Walters, a member of the Malvern Crew, in the
    same unit as Riley, a member of the Galloway Boyz, exposed Walters to a high
    risk of harm. Ontario, he held, citing
Timm v. The Queen
, [1965] 1 Ex.
    C.R. 174, at p. 178;
MacLean v. The Queen
, [1973] S.C.R. 2, at p. 7,
    was vicariously liable for acts of COs who, in the course of their employment,
    negligently create a foreseeable risk of harm to an inmate.

(a)

The Absence of Reasonable Care

[16]

The trial judge noted that in July 2008, the Don Jail adopted a policy
    whereby COs would designate certain inmates as STG members, who were to be
    housed in institutions based on the concept of numeric balancing. Members of
    the same street gang were not to be placed in the same unit with other members,
    but distributed across the institution to prevent them from gaining power
    through association. A description of the STG initiative was circulated in a
    memo to COs, but it was never incorporated into their standing orders,
    training, or operating manuals.

[17]

The trial judge accepted that the STG initiative pursuant to which
    Walters was housed in the Unit with Rileyand in particular its concept of
    numeric balancingwas a government policy that would negate any duty of care
    inconsistent with it. He held that only the MCS possessed the expertise needed
    to understand the economic, political and social factors associated with
    housing decisions at the Don Jail. He also accepted that the policy was not
    made in bad faith or so unreasonable as to constitute an invalid exercise of
    discretion.

[18]

Further, the trial judge accepted that the unpredictable nature of the
    prison setting entails that an inmate who attempts to hold Ontario liable for
    an assault by another inmate must show that Ontario knew or ought to have known
    that it acted in a way that exposed him to a risk of harm by the other inmate.
    In this case, he found that the Don Jails COs ought to have known that housing
    Walters with Riley risked harm to Walters. I am aware that this part of the
    trial judges reasons suggests confusion on the nature of Ontarios liability,
    but, for reasons that I will provide below, I am confident that he ultimately
    held Ontario
vicariously
liable for employee negligence.

[19]

Despite the application of the policy, the trial judge concluded that it
    was wrong for Aspiotis, the admitting and discharge manager, to apply the
    numeric balancing principle in the abstract without considering potential
    incompatibility between these inmates. He noted that [i]nmate incompatibility
    on the basis of what the institution
writ large
ought to have known
    should have formed part of the calculus (emphasis in original).

[20]

Additionally, the trial judge found that Aspiotis never received
    training on how to apply numeric balancing. He noted that Walters was a designated
    STG member when housed in the Don Jail and was identified as a member of the
    Malvern Crew. He found that when Aspiotis placed Walters in the Unit with
    Riley, he was concerned only with ensuring that no other members of the Malvern
    Crew were in the Unit; Aspiotis viewed potential incompatibility between
    Walters and members of other gangs as outside his mandate under the policy.

(b)

The Indicia of Risk of Harm to Walters

[21]

First, the parties submitted in their agreed statements of facts that
    Rileys gang, the Galloway Boyz, and Walterss gang, the Malvern Crew, had
    engaged in violent skirmishes in 2004, and, at the time of Walterss admission
    to the Don Jail, Riley was on trial for alleged violent crimes arising from
    that conflict.

[22]

Second Walters made a telephone call to his girlfriend in which he
    mentioned another inmate, who, the trial judge concluded, was likely Riley. The
    trial judge viewed this call as an indication of Walterss concern for his
    safety. The fact that he never requested protective custody, the trial judge
    concluded, was rooted in his fear of retaliation for doing so.

[23]

Third, the trial judge noted that, even though there were no
    pre-indicators of violence between Riley and Walters, the circumstances
    surrounding Rileys incarceration, including the extraordinary security
    measures taken for Rileys court appearances and the general awareness within
    the justice system of his propensity for violence, should have alerted the Don Jails
    COs to the risk of harm to Walters.

[24]

Those findings supported the trial judges conclusion that the security
    risks that Riley posed ought to have been known to all members of the justice
    system, including the Ministry of the Attorney Generals prosecutorial and
    court services branches, the Toronto Police Service, and the MCS, and should have
    been brought to the attention of the Don Jails COs, including Aspiotis. This
    information should have influenced Aspiotiss decision on Walterss placement.

(c)

The Circumstances of the Assault

[25]

The trial judge based his findings about the assault mostly on the
    testimony of Lonny Pearson, an ex-inmate who claimed to have witnessed the event.
    Pearson was an unsavoury witness, but the trial judge found that his
    inconsistent testimony was in part caused by a concern for retribution by gang
    members for testifying. Pearsons account was corroborated by the notes of a
    Toronto police officer, Angelo Xinos, which were taken when Pearson gave a
    statement to Xinos during the Toronto Police Services investigation of the
    assault.

[26]

The trial judge found that Riley was one of the attackers. According to
    Pearson, one of the attackers had just returned to the Don Jail from court that
    day and, at the attacks beginning, came out of Rileys cell. Riley was in
    court that day. The attack was gang-related, if not motivated by gang
    antipathies, and Riley was the only member of the Galloway Boyz in the Unit.
    Wet clothing was found in Rileys cell after the assault.

[27]

Additionally, the trial judge concluded that the distance between the CO
    desk and the shower-toilet area in the Unit, as well as the waist-high wall
    obstructing the showers, provided an opportunity for a sustained assault in
    the Unit to escape the COs notice.

(d)

Conclusion

[28]

The trial judge concluded that Walterss injuries were a direct result
    of Ontarios negligence and would not have occurred but for Ontarios
    negligence.

THE ISSUES

[29]

Ontarios submissions raise three issues on appeal:

1. Was the trial judge wrong in his analysis of the duty of
    care that the corrections officials owed to Walters, an inmate?

2. Did the trial judge make any reviewable errors in his
    application of the relevant standard of care to the Don Jails corrections
    officials?

3. Was the trial judge unreasonable in concluding that the
    negligence of one of the corrections officials caused Walterss injuries?

[30]

Below, I will address each of the questions in order.

ANALYSIS

[31]

At the outset I can advise that I would dismiss Ontarios appeal. The
    issues on appeal are three basic elements of a negligence action: duty of care;
    breach of the standard of care; and causation of damage. The first issue, the
    determination of a duty of care, is a question of law. Appellate courts review
    such determinations for their correctness:
Ryan v. Victoria (City)
,
    [1999] 1 S.C.R. 201, at para. 21;
Housen v. Nikolaisen
, 2002 SCC 33,
    [2002] 2 S.C.R. 235, at para. 8. The second issue, application of the relevant
    standard of care, and the third issue, causation of damage, are questions of
    mixed law and fact. On those matters, this court must not interfere with the
    trial judges findings absent any palpable and overriding error or error
    concerning an extricable question of law:
Housen
, at paras. 29-37,
    70, 159.

[32]

Read holistically, the trial judges duty of care analysis discloses
    no legal error. Regarding the trial judges findings of a breach of that duty
    and causation of damage, I detect neither any palpable and overriding error
    of fact nor any error concerning an extricable question of law.

Issue 1:  Was the trial judge wrong in his analysis of the duty of care that
    the corrections officials owed to Walters, an inmate?

[33]

Here, Ontario submits that the trial judge made two errors. First,
    Ontario argues that he held the province directly liable, whereas the law
    generally holds Ontario liable in negligence only vicariously, through the
    negligence of specific Crown employees or agents. Second, Ontario claims that the
    trial judge erred in holding the Crown liable for two core policy decisions,
    which I will describe briefly below.

(a)

Ontarios liability

[34]

Generally, the provincial Crown can be liable in tort to inmates of
    correctional facilities only in the form of vicarious liability for torts that
    specific Crown employees or agents commit, and only if the plaintiff could have
    sued the employee or agent for that tort:
Proceedings Against the Crown Act
,
    R.S.O. 1990, c. P.27, ss. 5(1)(a), 5(2);
MacLean
,

at p. 7;
    but see
Iwanicki v. Ontario (Minister of Correctional Services)
,
    [2000] O.T.C. 181 (S.C.), at paras. 14, 19-26, contemplating liability under s.
    5(1)(c) of the
Proceedings Against the Crown Act
. Thus, in this case,
    Ontarios liability, if any, must derive from actionable negligence of specific
    COs.

[35]

I do not agree that the trial judge failed to apply the just-stated
    principle of vicarious liability to the facts of this case. He did not, as
    Ontario asserts, dispositively conflate the concepts of direct and vicarious
    liability. Ontario relies on various comments in the trial judges reasons to
    illustrate this point. However, even if a generous reading of the referenced
    comments could allow for such an interpretation, when the trial judges reasons
    are read as a whole  which they must be  it is beyond question that he applied
    the correct legal principles and did not hold Ontario directly liable.

[36]

The trial judge did not, as Ontario claims, hold that institution-level
    conduct  information gathering and sharing at the institutional level  could
    ground liability. Rather, he considered the inter-institutional knowledge and
    sharing of information about Riley within the government in support of his
    conclusion that Aspiotis knew or ought to have known of the threat posed to
    Walters.

[37]

Any liability of Ontario flowing from these facts flowed through the negligence
    of a specific CO, Aspiotis, in housing Walters with Riley. In his testimony,
    Aspiotis stated that he was indeed the CO that made this housing decision. The
    trial judge made no reviewable error in this part of his analysis.

(b)

Policy decisions

[38]

The Supreme Court of Canada has held a public authority generally should
    be liable when the authoritys employees or agents are negligent in carrying
    out prescribed duties:
R. v. Imperial Tobacco Canada Ltd.
, 2011 SCC
    42, [2011] 3 S.C.R. 45, at para. 72. Furthermore, corrections officials
    generally owe a duty of care to inmates under their supervision:
Timm
,
    at p. 178;
MacLean
, at p. 7.

However, core or true public
    policy decisions are non-justiciable as long as they are neither irrational
    nor taken in bad faith, so an employee or agent of a public authority owes no common-law
    duty of care in making such a decision:
Imperial Tobacco
, at para. 90.
    At trial, Ontario argued that the decision to put Walters in the Unit with
    Riley was not reviewable by the court because the decision was reasonable and
    based on a true policy decision.

[39]

On appeal, Ontario maintains this argument, and adds that the trial
    judge improperly impugned the surveillance set-up in the Unit when he found, at
    paras. 62-66 of his reasons, that the wall in front of the shower area, to
    which Walterss assailants dragged him, and the distance of that area from the
    control desk, created an opportunity for a sustained assault of some
    duration.

[40]

Ontarios first argument assumes an interpretation of the STG policy as
    requiring not only that the COs place members of the
same
gang in
different
units, but also as excluding liability for the placement of members of
rival
gangs in the
same
unit, at least when those inmates OTIS cards
    did not include non-association alerts. In support of this argument, Ontario
    adduced evidence that the policy contemplated the placement of members of rival
    gangs within the same unit.

[41]

However, Ontario did not adduce evidence that the policy directed COs
    not to consider inmate incompatibility beyond any information on the relevant
    inmates OTIS cards. Also, there was no evidence suggesting that to require COs
    to take account of inmate incompatibility, as well as numeric balancing, when
    assigning inmate housing would constitute the kind of weighing of social,
    economic and political considerations that is the responsibility of the
    executive and the legislature rather than the judiciary:
Imperial Tobacco
,
    at para. 87.  Therefore, the trial judges finding that Aspiotis should have
    considered Walterss incompatibility with Riley was not inconsistent with the
    policys immunity.

[42]

I also reject Ontarios argument concerning the trial judges comments
    on the Units layout, which Ontario says was itself a matter of policy. This was
    not a finding of  liability for the configuration or layout of the Unit, which
    was arguably a question of policy; rather, the trial judge made these comments
    merely to emphasize the importance of housing incompatible inmates in separate
    units, so that there would be a lower risk that such inmates would harm each
    other.

[43]

For these reasons, I would not give effect to this ground of appeal. I
    will now turn to addressing Ontarios complaints in connection with the
    standard of care.

Issue 2: Did the trial judge make any reviewable errors in his
    application of the relevant standard of care to the Don Jails corrections
    officials?

[44]

Ontario submits that the trial judge committed errors in holding that,
    based on the facts found in the pre-trial rulings in Rileys prosecution,
    Aspiotis should have foreseen that housing Walters with Riley would expose
    Walters to a serious risk of harm. The nature of the alleged errors will become
    more defined in my analysis below.

[45]

As I will explain, I would not give effect to this ground of appeal.

(a)

Pre-Trial rulings

[46]

To better understand the issue involving pre-trial rulings, it will be
    helpful if I provide some brief background.

[47]

In a post-hearing e-mail to counsel, the trial judge indicated that he
    had reviewed the parties Agreed Statement of Facts, as well as several rulings
    from Rileys prosecution to which the Statement referred. He wrote that he was
    persuaded that the facts concerning security measures in these rulings probably
    would have come to the attention of the Don Jails COs and he asked the parties
    what moment he could make of these facts.

[48]

Ontario responded, submitting that knowledge of the facts could not be
    attributed to the Don Jails COs because the rulings were not publicly
    available. The respondents answer was that the existence of the publication
    ban did not mean that participants in the justice system would not have
    disseminated the information about the security threat so as to implement the
    orders made by the presiding judge. The trial judge agreed with the
    respondents position and proceeded to rely on the facts from the pre-trial
    rulings, particularly those found in
R. v. Riley
, [2008] O.J. No. 2116
    (S.C.).

[49]

As I mentioned earlier, the trial judges conclusion that the Don Jails
    COs ought to have known of the risk of harm to Walters from Riley relied on the
    extraordinary security measures taken for Rileys court appearances and the
    general awareness within the justice system of Rileys propensity for violence.
    The trial judge stated, at para. 57, that the factual findings in Rileys
    pre-trial
Charter
application decision made clear that:

[T]he Defendant,
in its capacity as justice system
    participant, warden of the Don Jail, and a division of Her Majesty the Queen in
    Right of Ontario
, knew or ought to have known of the extraordinary
    security measures undertaken during Rileys preliminary inquiry and in
    preparation for his trial. [Emphasis in original.]

[50]

Ontario now argues that the trial judge engaged in an improper
    independent judicial inquiry by reading the pre-trial
Charter
ruling
    in
Riley
to determine what knowledge of Riley could be attributed to
    Aspiotis. Ontario contends that the ruling was not part of the trial record and
    was subject to a publication ban until after the assault on Walters occurred. It
    was, Ontario says, improper to re-open the record after the trial hearing of
    Walterss civil claim in order to include the facts found in Rileys pre-trial
Charter
ruling.

[51]

In my view, even if the facts found in
Riley
were inadmissible in the present case  which, to be clear, I am not deciding 
    Aspiotis had already given evidence that he knew, before he placed Walters,
    that Riley was dangerous and was charged with attempted murder of a member of
    the Malvern Crew. Aspiotis said that he was not immune to news reports of
    Rileys prosecution, that he knew that Riley was escorted to and from the Don
    Jail by the Emergency Task Force, and that the admitting and discharge manager
    at the Don Jail had good reason to pay special attention to Riley.

[52]

Other evidence supported a conclusion that Aspiotis should have known
    that Riley was an unusually dangerous inmate. The parties Supplementary Agreed
    Statement of Facts stipulates that from February 19, 2008 to November 19, 2008
     the date of the assault  Riley attended court for trial on 60 occasions. On
    one occasion, Riley had assaulted one of his fellow Galloway Boyz right in
    front of the admin and discharge staff. Furthermore, from his arrival at the
    Don Jail until Walterss assault, Riley had been cited for 20 incidents of
    misconduct, with five of those involving violence or the threat of violence
.


[53]

Given that Aspiotis would have had special knowledge of Riley, the trial
    judges finding that the placement of Walters and Riley in the same Unit was
    negligent follows and was equally supported by the evidence. Walterss OTIS
    card identified him as a member of the Malvern Crew. There was an admission by
    a senior corrections official during his examination-in-chief that, if an
    admitting and discharge officer were aware of any believed or perceived
    conflict between a new inmate and an inmate already on the relevant range,
    that officer would not place the new inmate on that range.

[54]

The evidence was that, while considering the placement of a new inmate,
    Aspiotis would have had a copy of the STG list. When he interviewed Walters for
    admission, Aspiotis asked him the standard questions, but did not ask whether
    he should separate Walters from any other gangs generally or from the Galloway
    Boyz specifically. Also, Walterss OTIS card indicated that he previously had
    spent time in protective custody, but Aspiotis did not ask him about the
    reasons for that experience.

[55]

Given the information that Aspiotis obtained concerning Walters, as well
    as what he knew about Riley, he should have known not to place them in the same
    unit. The trial judge found that Aspiotis had failed to consider whether
    Walters had any inmate compatibility issues beyond checking Walterss OTIS
    card. The trial judge also found that the layout of the Unit, which created an
    opportunity for  a sustained assault of some duration, augmented the
    importance of checking for inmate incompatibility when admitting a new inmate.

[56]

The trial judges finding that Aspiotis breached the standard of care
    had a sufficient evidentiary basis, even without the findings in the
Riley
ruling.  Compliance with the standard of care is a question of mixed law and
    fact. The trial judges finding that Aspiotis should have known not to place
    Walters in the same unit as Riley does not disclose a palpable and overriding
    error that would justify this courts intervention:
Housen
, at paras.
    29-37.

[57]

I will now turn to the final issue in this appeal, causation.

Issue 3: Was the trial judge unreasonable in concluding that the
    negligence of the corrections officials caused Walterss injuries?

[58]

The trial judges finding that the assault on Walters was motivated by
    gang hostilities was based on the following evidence:

·

The description of Walterss attacker given to police officer
    Angelo Xinos by ex-inmate Lonny Pearson, namely, a black man of muscular or
    athletic build, which matched the description given by Aspiotis in his
    evidence.

·

Pearson stated to Xinos that the attacker had just come back from
    court, which is a descriptor that fit Riley.

·

Pearson told Xinos that the attacker came out of cell 10, which
    was Rileys cell.

·

Xinos notes stated that the assault was gang-related and that
    the suspects were members of the Galloway Boyz. These notes were taken before
    he heard Pearsons account and corroborated that statement.

[59]

Ontario claims that the trial judge made two errors in concluding that
    the negligence of the Don Jails COs in housing Walters and Riley together caused
    Walterss injuries. First, Ontario says the trial judges reliance on Pearsons
    statement to Xinos was in error because it was a prior inconsistent statement
    that was never put into evidence for the truth of its contents. Furthermore,
    Ontario argues that he improperly reconciled inconsistencies in Pearsons
    evidence  including Pearsons failure to pick Riley out of an identification
    lineup  by relying on the con-code (the purported understanding among
    inmates that they should not rat on each other because fellow inmates might
    take retribution for inculpatory testimony).

[60]

Second, Ontario asserts that the trial judge erred when he relied on
    Xinoss notes to find that the assault on Walters was motivated by gang
    hostilities. According to Ontario, Xinoss notes, which stated that the assault
    was gang-related, were copied from an occurrence report that he did not
    independently verify. The notes, therefore, contain inadmissible hearsay.

[61]

I would reject Ontarios submissions; the trial judge did not commit
    either error in my view.

[62]

Although there were inconsistencies in Pearsons testimony, he adopted
    the very statements on which the trial judge relied in making his findings on
    the identity of Walterss assailant. At para. 75 of his reasons, the trial
    judge accepted that Pearsons evidence contained some prevarication, but he
    was satisfied that the evidence that was recorded in the original interview
    was consistent with that portion of his trial evidence that I accept.
    Therefore, this is not a case of using hearsay, in the form of a prior
    statement, for the truth of its contents. The prior statements recorded by
    Xinos indicated that, according to Pearson, the assailant was a black man of
    athletic build who had been in court earlier that day and had come out of cell
    10. In his trial testimony, Pearson agreed that the assailant was a black man
    of athletic build who had been in court earlier that day and had come out of
    cell 10.

[63]

There was no impropriety in the trial judges discussion of the
    con-code. The menacing effects of the con-code on an inmates testimony are
    routinely noted in the case law to deal with inconsistencies affecting a
    witnesss credibility: see e.g.
Coumont v. Canada (Correctional Services)
(1994),
    77 F.T.R. 253 (T.D.), at paras. 6-9;
Squires v. Canada (Attorney General)
,
    2002 NBQB 309, 253 N.B.R. 236, at para. 79;
Miclash v. Canada
(2003),
    227 F.T.R. 116 (T.D.), at paras. 38-41;
McLellan v. Canada (Attorney
    General)
, 2005 ABQB 486, 382 A.R. 287, at paras. 19-25. I can find no
    reason why the trial judge was not entitled to take this factor into account
    when assessing Pearsons credibility. In any case, the trial judge noted how
    Xinoss notes corroborated Pearsons testimony, which would mitigate any damage
    caused by the effects of the con-code. Moreover, Pearson was not inconsistent
    on the specific statements on which the trial judge relied to make his
    causation findings.

[64]

Furthermore, the trial judge found that the notes made by Xinos that
    corroborated Pearsons testimony, and further implicated Riley in the assault
    on Walters, were not copied from the occurrence report. As the trial judge put
    it at para. 73, they derived from observations which [Xinos] made on his
    arrival at the Don and before the commencement of his interview of Pearson.
    The notes on these points, therefore, did not contain inadmissible hearsay.

[65]

Finally, the trial judge rejected Ontarios submission about the lack of
    pre-indicators of violence between Riley and members of the Malvern Crew. The
    trial judge stated, at para. 76, that he was not in a position to understand
    Rileys psyche in November 2008, at a time when he was near or close to the
    commencement of a trial for very serious offences which, undoubtedly, he knew
    would carry with them a life sentence upon conviction, with limited rights to
    parole.

[66]

For these reasons, I would reject this ground of appeal. Absent the
    errors complained of, the trial judge's conclusions are entitled to deference.

DISPOSITION

[67]

For all the reasons set out herein, I would dismiss the appeal. I would
    award the respondents their costs of the appeal in the agreed upon amount of
    $35,000, inclusive of disbursements and HST.

Released: GRS JAN 23 2017

H.S. LaForme J.A.

I agree. G.R.
    Strathy C.J.O.

I agree. K. van
    Rensburg J.A.


