An inmate’s day parole was revoked by two federal parole officers based on uncorroborated hearsay information. While on day parole the inmate was working and earning approximately 20 dollars an hour. The inmate had been incarcerated in a minimum security prison but was sent to Kingston Penitentiary (a maximum security institution). His day parole was reinstated by the Parole Board of Canada and he was back on day parole 83 days later.
The inmate brought a civil action against the Correctional Service of Canada (CSC) for public misfeasance of office, false imprisonment and negligence. A prothonotary of the Federal Court heard the case and decided that the inmate had been falsely imprisoned and that the parole officers had been negligent.
The prothonotary found that the two parole officers “acted precipitously based solely on uncorroborated hearsay information”. However, they were acting within the scope of their duties and did not act maliciously. Accordingly, the public misfeasance of office was not made out.
He ruled as follows on the standard of care owed to the inmate (at paragraphs 58 and 64-65):
The totality of the evidence demonstrates that both parole officers exercised their judgment based upon what they believed to be reliable evidence. They did so in good faith believing it was in the best interest of the public and public safety. While they acted with an honest belief that they were acting in the best interest of the public and public safety, this does not mean that their decision was necessarily correct or reasonable in all of the circumstances. Nor does it mean that [the inmate] is without remedy.
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Based on Hill [ Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129 ] there is a proximity in the relationship between the parole officers and [the inmate] as it was known to the parole officers that their actions could result in harm to [him]. The parole officers did owe a duty of care to [him]. Analogizing the duty of care of police officers as described in Hill, to parole officers generally, the duty of care owed by the parole officers is one in which they exercise their discretion but “within the bounds of reasonableness”.
Did the parole officers act within the bounds of reasonableness in this case? On the totality of the evidence led at trial it is my view they did not. While there is no doubt they have a difficult job to do, the exercise of discretion should be based on some reliable evidence not hearsay and surmise. Here, the incident giving rise to the suspension of parole was based on an unsubstantiated allegation founded in hearsay which was not in any way corroborated.
The prothonotary held that the CSC had not established a justification for the false imprisonment of the inmate. A belief that they were acting in the public interest was not sufficient in light of their precipitous action in canceling the day parole.
The prothonotary also found that the inmate was entitled to recover damages for negligence of investigation (at paragraph 101 and 107):
It is the duty of the [Parole Board of Canada] to review and determine whether an inmate has been sufficiently rehabilitated to be allowed on day parole. The PBC did this and determined that [he] was a manageable risk. The PBC asked pointed questions of the parole officers and were not satisfied on the hearing removing the suspension of day parole that there were sufficient grounds to suspend the day parole in the first place. While the decision of the PBC is not binding in this case it is nonetheless of some persuasive value as Courts defer to specialized tribunals acting within their competence.
More could and should have been done before the precipitous act of suspending parole was taken. The parole officers were in a sufficiently proximate relationship to [the inmate]. They failed to take steps which were easily available to them and therefore were negligent in the conduct of their duties. Malice is not required for this tort so the fact the parole officers believed they were acting to protect society does not answer their negligence. The various steps that could have been taken are noted above. Suffice it to say the parole officers’ conduct did not meet the standard of reasonableness when all of the evidence is considered.
In determining the amount of damages, the prothonotary considered the following factors:
- • false imprisonment of 83 days
- • he would have earned income during those 83 days (on re-release he obtained a job that paid $21.50 an hour)
- • he was incarcerated for a substantial part of those 83 days at Kingston Penitentiary (a maximum security facility)
The prothonotary did note that loss of reputation and humiliation were not matters that weighed heavily in assessing damages in this case.
The damages were calculated based on the likely earnings of the inmate of $14,000 and a damage award of $6,000, based on awards in other false imprisonment cases.
Counsel for the government argued that if liability was found against the parole officers, it would be against the “will of Parliament and invite future decisions which will endanger the public”. The prothonotary stated (at paragraph 122) that this was a “vast overstatement”:
There will be no floodgates opened as a result of this case. Cases of this sort are based on the specific facts and the evidence led at trial. The evidence in this case supports the conclusions reached.
He noted that the “will of Parliament” is reflected in the statutory duty of the officers under the relevant legislation and the reasonableness standard set out in Hill.