…….from “Taking the field”, December 3, 2018

Brennan Guigue’s lawsuit against the government was scheduled for March 12 to set a date to begin hearing evidence. But, “moving forward” in court includes accommodating unforeseen delays, setbacks from either side. The latest postponement is on Guigue and his lawyers.

The forensic toxicology report from our U.S. pepper spray expert is dated January 25 but it wasn’t until the end of the first week of March that the Montreal lawyer representing Brennan Guigue’s attorneys, Kalman Samuels, was able to pass it on to him for review.

Given the expected questions Brennan and his lawyers would have for the expert about the case review, Montreal also filed an Application with the court to extend the delay for setting down for trial and judgement, requesting an additional 3 months to ready the file.

Brennan had two questions for the consultant in New York, his lawyers had two as well, and these were emailed to the States on March 22. A discussion between lawyer and expert followed within five days, the questions were answered, and the report was filed in the court record by the end of the month.

This report will not be reproduced here, in whole or in part. Let’s only note that the expense was worthwhile and the results are useful.

The court granted the requested extension. The new inscription date is June 12.

Worth repeating: –
Brennan Guigue is far from the first inmate in our federal prisons to experience a pepper spray attack. He survived. Others haven’t. Government lawyers and taxpayer money ensures silence. And in Brennan’s case, all the guards involved are still employed by CSC….except the videographer who voluntarily left the Service.

……another pause in the prison series for an update.

…since the last posting on September 23/18

This writer enjoyed an opportunity to catch up with two former business associates at a recent social event. Both had retired at senior positions in their respective fields, and our mutual respect and admiration form a bond of friendship that transcends our less than frequent contacts.

Brennan Guigue’s action against Correctional Service of Canada intrigues them but each of these two men comes at it from a different perspective. For one, this is a matter of an inmate standing up to a corrupted system that too often abuses its power over men and women who face perceived credibility challenges on the one hand, and don’t have the resources to hold their captors to account on the other. The second of the two is baffled by a conundrum that has public servants acting against their oaths, their employer’s policy and rules, and even the law while apparently sheltered under an umbrella of impunity.

As concerning as this situation may be to them, they’re not motivated to do anything more than take a peek under that rock, comment with a shake of the head, and move on. That underscores the importance of Brennan Guigue’s action, a variance on “speaking truth to power.” Here is one person who is telling the government that it can’t do what it wants just because it can.

As a ‘by the way’, another access to information request this fall again asked CSC for the employment status of the guards involved in the July, 2014 assault. The guard who videotaped the event has left the Service, but the others are still working for the prison system. How many other inmates have they targeted in the last four years?

The March 12 inscription date in 2019 looks like a go, and Brennan and his lawyer are meeting with government lawyers early next year. The services of an expert witness are beginning to gel, and the pace is ramping up….slow and steady…. as the road ahead is focused on the resolution in the distance.

Moving forward. Always moving forward.

……..a pause in our regular programming to bring you the latest updates…

…..since the last posting on May 13/18…….

September 12 was the inscription date for this action against Correctional Service of Canada, the date when the two parties were to go before the Court with their ducks in a row to set a trial date. On the day before, Quebec Superior Court Justice Julien Lanctot granted Kalman Sameuls Attorneys, who represent Brennan Guigue, a postponement until March 12th, 2019.

Why?

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There was a delay in obtaining Brennan’s complete prison medical records from CSC’s Access to Information & Privacy section.
Brennan’s request was dated March 6th with a note the records were to be sent to his lawyers in Montreal. The usual and regular practice stipulates an acknowledgement and receipt for the fee is issued by CSC within 30 days, with a reference file number attached. This didn’t happen, and a miscommunication between client and lawyer slowed a follow-up. The search didn’t begin until late July.
The lawyer in charge of the Brennan’s file made several calls but was unable to connect with the CSC ATIP office. A fax got their attention. Initially, the CSC’s Ms Martine Gauthier claimed the request had not been received. It wasn’t until she received a copy of the original request and cheque, noting the fee had been processed on March 29, that a further search showed this was in their system, and admitted a mistake had been made.
An expedited copy of the health records was finally received in Montreal on September 10.

In a August 30th letter to his lawyers, Brennan raised numerous points, and he questioned two areas likely to arise in the medical records. First, there would be the conflict between the Regional Reception Centre healthcare department’s cavalier assessment justifying the use-of-force, and the RRC warden’s conflicting admission in other documentation on file. Secondly, there was Donnacona’s healthcare unit’s refusal to assess, record or photograph the effects of the assault in the weeks following the initial incident.

)()(

Kalman Samuels wanted to interview the RCC warden. Correctional Service of Canada apparently has the legal high ground in deciding who it would offer for an out of court examination, and while the firm pressed the matter, in the end it accepted Correctional Manager Supprien Hodnick, a Correctional Manager on duty at RCC at the time of the incident in 2014.
That examination took place on September 21.

)()(

The search for a “pepper spray” expert defense witness was extensive. This is a necessity, Brennan was told, and one in particular surfaced. All candidates were American but Brennan questioned why a Canadian was not in the running.
According to his lawyers, there are a few Canadians qualified for this work, but no Canadian expert will testify against the government!
Let’s repeat that. No Canadian ‘expert’ will testify against the government, fearing reprisal and retribution.
This is the nature of the beast, our beast, like it or not.

)()(

The request for yet another postponement was up to the judge, Brennan was warned, but Justice Lanctot was persuaded the extension was reasonable. March 12th, 2019 is therefore the new inscription date.

Remember Alex Wubbels? She was the nurse at the University of Utah Hospital in Salt Lake City forcefully detained in July of last year by police officer Detective Jeff Payne for refusing to draw a sedated patient’s blood in connection with a police investigation. Her arrest was captured on body camera video and widely distributed.

Nurse Wubbels was following hospital policy, and no charges were filed against her.

University of Utah Health now bars police officers from patient-care areas. Officer Payne was fired from his job with police, and from part-time work as a paramedic. Nurse Wubbels accepted a settlement of $500,000, split between the city and the hospital. Her lawyer declined to explain why they agreed to settle.

How about Nandi Cain Jr.? He was the black man beaten by a Sacramento, California, white police officer on April 10 of last year as he was walking home from work in the afternoon. Officer Anthony Figueroa accused Cain of jaywalking, but Nandi questioned the validity of the stop.

The incident was picked up on the cruiser’s dashboard camera, and a cellphone video shot by a passenger in a car when the driver stopped to record what was happening. The passenger and driver both got out of the car and screamed their objections to the assault.

In the end, at least seven police officers could be seen in the video, Cain was searched, accused of jaywalking, and charged with resisting arrest. He claimed he was stripped naked and verbally abused at the Sacramento County Jail. The charge was dropped and he was released within hours.

Nandi Cain filed a federal civil rights lawsuit against the police. The portion of the suit pertaining to his treatment while in custody was settled last fall for an undisclosed amount, and the balance of the action was resolved by a $550,000 cash settlement this spring, plus changes to police policy.

Yes, non-disclosure clauses are not as frequent in the United States as in Canada, where we have less accountability attached to use of tax dollars, and settlements in the U.S. are customarily higher as well. The figures above are in American dollars, too.

Brennan Guigue filed a claim through his legal representatives on July 24, 2017, in Quebec Superior Court against the Attorney General of Canada, and Eric Charbonneau, a guard at the Quebec Regional Reception Centre. He’s asking for $220,000 in damages relating to the incident on July 22, 2014 where he was “tortured and abused by Canada’s own federal civil servants”, as we wrote on March 4 of this year.

Complete videos of the incident were finally turned over to his lawyers at the end of this February. Still to come are redacted portions of Correctional Service of Canada documents which, even in their present edited state, repeatedly underscore that the actions taken on July 22 of 2014 were unwarranted. A full medical file has also been requested.

Counsel Véronique Forest from Canada’s ministry of justice is representing the government. She’s answered the Guigue claim with an argument that can be précised as a declaration that nothing was amiss in 2014, the defendants are not liable, and the plaintiff is responsible for what happened.

One might assume she hasn’t seen the videos and hasn’t read the documentation. We’d be tempted to counter by suggesting the film be posted for her benefit, but that would raise objections from some quarters.

In the meantime, both parties supported a delay in the proceedings until this September in order to ready the file for trial.

As we wrote in March, “The wheels turn…….”

“One step at a time……”, the October 1st posting in the fall, was the last update on the status of this action against Correctional Service Canada. The wheels turn, yes, but they very turn slowly.

Since then, Kalman Samuels, QC & Associates, the Montreal firm representing Brennan Guigue, has been in touch with the Office of the Privacy Commissioner of Canada several times. The OPC was the point contact with Correctional Service of Canada for the video and printed material CSC had committed to release to his lawyers.

The inquiries were fruitless, and Kalman Samuels finally abandoned this tact. In the middle of last month, it sent off a request directly to CSC, and also filed a motion asking the court to require the agency to come up with the goods. This got the attention of the government lawyer representing the country’s ‘prison industry.’

The agency turned over 4 dvd’s within ten days, and an inspection verified they contained a complete video record of the assault on the afternoon and evening of July 22 in 2014. A conversation around the redacted printed material is pending and the law firm is intentionally very specific on what it expects to receive.

In the meantime, the Kalman Samuels attorney who is doing the legwork on the file is looking for a recognized expert on the use of pepper spray, one who is relatively close by, and not inclined to expect an outrageous retainer. Access to information requests for a copy of Brennan Guigue’s medical files is underway. Otherwise, lawyers for both sides are in the process of arranging the necessary interviews to move this action forward.

Regardless of medical records and pepper spray experts, there is one overriding point to keep in mind. This country, this Canada, paid out tens of millions of dollars to Maher Arar, Ahmad El Maati, Muayyed Nureddin, Abdullah Amalki, Benamar Benatta, OmarKhadr, and may pay further millions to Djamel Ameziane, Abousfian Abdelrazik and others, because this country, this Canada, was complicit in the torture and abuse of these men while they were imprisoned in other countries, including the United States.

Brennan Guigue was tortured and abused by Canada’s own federal civil servants. How much is that worth?

……and make no mistake, Correctional Service of Canada does not want paper and video documentation on this July 2014 incident in the public domain. It’s bad PR, and just when the agency is under increased criticism and scrutiny in the media, and in the courts in Ontario and British Columbia, over its use of solitary confinement.

Both parties to this action against Canada’s federal ‘prison industry’ completed their portion of the Case Protocol, and Kalman Samuels filed the document in the Superior Court record in Montreal on September 7.

The government has asked that Eric Charbonneau’s name be removed from the Application. That has been rejected. The government has also requested a stay of proceedings for two months in order to engage in negotiations. It believes the information in its possession will allow the matter to be settled. That too has been rejected. What has been proposed is the scheduling of pre-trial examinations in mid-October or November to allow time for negotiation before the case moves forward. The government has accepted that proposition.

Brennan Guigue approved the Case Protocol, but the matter of available medical reports as a part of the material under consideration is questionable. Brennan was unable to bring in independent and outside medical assessment and treatment, and had to rely on what was available through CSC’s Health Care. This has been discounted in previous postings as corrupted for lack of due diligence, but would be subject to argument at trial.

Brennan Guigue is open to a negotiated settlement of course, but rightly insists there must be a level playing field. He and his counsel must have all the information available to the government. That includes the complete and unedited video, plus the redacted data CSC has so far offered to release, and there must be an opportunity to determine if other redacted data is necessary in order to reach a fair and equitable resolution.

The wheels turn………

Picking up from the June 10th posting, “……..READY…….SET……”, a Demand Letter was sent to Correctional Service Canada’s Quebec Regional Reception Centre on June 10th.

Attorney Sarah Afshari of Kalman Samuels & Associates in Montreal immediately began working on the Application to Institute Proceedings, assuming CSC would fail to comply with the terms of the Demand Letter within the thirty days allowed.

At his attorneys’ recommendation, Brennan Guigue refused to accept CSC’s offer for the entire video of the 2014 assault, plus some redacted portions of the written documents sent to Attorney Stephen Fineberg. By accepting that offer, Brennan could not make further requests for data. In declining, the entire video plus some redacted portions will still be released, with some delays, but Brennan’s rights to demand more information if and when necessary are protected.

The final draft of the Application to Institute Proceedings was received in Toronto and approved on July 11. At the same time, Kalman Samuels & Associates was contacted by a lawyer with the federal Ministry of the Attorney General to advise a response to the Demand letter would not be forthcoming. This also served to introduce the firm to the attorney who would be the government’s lead representative in this lawsuit.

A July 20th registered letter to Brennan over Sarah Afsharis’s signature began, “You will find attached a copy of the Application to Institute Proceedings which was issued at court today. We will inform you once we receive a response from the opposing attorney.”

In the Superior Court of the Province of Quebec, District of Montreal, BRENNAN W. GUIGUE has begun an action against the ATTORNEY GENERAL OF CANADA, representing Correctional Service Canada – and – the REGIONAL RECEPTION CENTER, SPECIAL HANDLING UNIT in Ste-Anne-des-Plaines – and – ERIC CHARBONNEAU, correctional officer employed by Correctional Service Canada.

Since then, Correctional Service Canada, through the Office of the Privacy Commissioner of Canada, has issued a list of what information it is voluntarily prepared to release. As well, lawyers on both sides are now preparing their case protocols (agendas) going forward, and once agreed, will be presented to the Court. Brennan Guigue’s position is that the entire unedited video is the single most important and damning evidence, and is looking forward to its public exposure.

As always, we are standing by as the process unfolds.

“We are both encouraged and relieved to be on the move, to be stepping out onto the field. It just may take a while before we broadcast a play.”

‘…..ON THE MOVE!’ from last October 30 ended with those words. Now, we’re about to make that play.

Montreal attorney Stephen Fineberg spent over two years prodding Correctional Service Canada through access to information requests to release material and evidence of the July 22, 2014 assault on Brennan Guigue by CSC guards at the Regional Reception Centre north of Montreal. When they stalled delivery of the complete video information in particular, he turned to the Office of the Privacy Commissioner of Canada, which ruled there was no justification for the delay.

Let’s be frank. Correctional Service of Canada, a self-serving agency of your federal government, your civil servant, is wilfully and intentionally withholding video to which it has no restrictive legal claim. CSC does not want anyone to see the major portion of the tapes it has so far refused to release. It knows the contents will be another public relations disaster for our federal prison system, another embarrassment for national headquarters in Ottawa, and perhaps even go so far as to expose management and employees to a legal liability.

Late last October, Montreal attorney Dan Romano of Kalman Samuels, QC & Associates agreed to take on Brennan Guigue’s claim against CSC. Stephen Fineberg no longer litigates, Dan Romano was his recommendation, and all relevant material was turned over to the firm. We have only praise and thanks for Stephen’s experience and expertise in his field, and for his help. We are the better for the efforts he made on Brennan’s behalf.

Attorneys at Kalman Samuels have used the last few months to accomplish those “incremental stages” referenced on October 30 and have developed a strategy going forward. After a couple of fits and starts, a Demand Letter, the first step in the process, will be on it’s way to the Regional Reception Centre’s superintendent this week. Correctional Service of Canada will have 30 days to respond.

This is one chapter of our Canada 150 celebrations!  Fireworks optional!

.

Matthew Hines died in the Dorchester Penitentiary on May 27, 2015. For 13 months, his family in Cape Breton believed what they were told by Correctional Service of Canada, which said that Hines, who had a history of seizures, died from a drug-induced seizure.

So began “What say you, Minister?,” a post from September 25 last year. There was much more to the death of Matthew Hines than Correctional Service of Canada first let on. Just so, there is much more to Brennan Guigue’s experience in July of 2014 at the Regional Reception Centre in Montreal than the agency has so far admitted. Brennan Guigue survived his ordeal at the hands of CSC employees and is participating with his attorneys to uncover what information and evidence CSC has been reluctant to share.

Our September 19 letter last year to Public Safety Minister Ralph Goodale has gone unanswered (it was reprinted in that September 25 posting). Not that a response is anticipated or always welcome, but it is typical for politicians to avoid writing when they cannot see a way to score points, valid or otherwise. More so, it is annoying for public servants to pretend a thorny issue can be sidestepped by simply dismissing its existence.

turnoverarocktoday is annoyed.

Our second letter went out to Mr. Goodale not long ago. We would be surprised to hear from the minister, but if our attempt to pry one from his office puts him off his lunch, we’ve been successful. In the meantime, Brennan Guigue and his team are moving forward.

February 24, 2017

The Honourable Ralph Goodale,
Minister of Public Safety,
House of Commons,
Ottawa, ON K1A 0A6

Re: Matthew Hines/Brennan Guigue
My September 19, 2016 letter

Dear Minister Goodale:

Again, I quote from the statement released by your office Wednesday evening, August 24, of last year regarding the May 27, 2015 death of inmate Matthew Hines at Dorchester Penitentiary.

“But let me be clear that there can be no tolerance for inappropriate use of force or other serious misconduct.”

You were commenting on the actions of men and women in your employ and acting under your authority. My September 19, 2016 letter went on to reference another questionable incident from July of 2014 at the Regional Reception Centre in Ste-Anne-des-Plaines north of Montreal.

What say you, Minister, I asked back in September.

Certainly, one would have expected you and your immediate subordinates to have issued directives to Correctional Service of Canada by now aimed at minimizing the likelihood of any repetition of “inappropriate use of force or other serious misconduct.”

My readers and I would welcome an update.

Yours truly,

Charles H. Klassen

cc Honourable Bill Morneau/Stephen Fineberg/Brennan Guigue/turnoverarocktoday.com

Cat got your tongue, sir?

Stephen Fineberg is a Montreal attorney working in prison law who Brennan Guigue has known for about twenty years. There had been a contact lapse of many years before Brennan asked him for help in taking Correctional Service of Canada to task for the OC assault at the RCC in July of 2014. He’s been working almost since day one to assemble material and evidence of wrongdoing from CSC through Access to Information, and when there was apparent stonewalling by the agency in releasing complete relevant data, Mr. Fineberg turned to the Office of the Privacy Commissioner of Canada for assistance.

Attorney Fineberg wrote a five-page letter to Brennan dated September 27 of 2016 summarizing the chronology of the course of his work from early August of 2015 to the present. He itemized all the steps taken during the period, but concluded that the Office of the Privacy Commissioner’s investigation into CSC’s lack of full disclosure would require at least a year to finalize. Given that the three-year time limit for initiating an action would expire in July of 2017, he recommended we move forward now.

AS A RESULT, WE SPENT THE MORNING OF MONDAY, OCTOBER 24, IN MONTREAL with Stephen Fineberg in the office of Attorney Daniel Romano reviewing the on-hand material relating to the July 22, 2014 incident at the Regional Reception Centre in Ste-Anne-des-Plaines. Mr. Romano had not seen any of this previously, and his assessment both informed our decision and directed the process.

Daniel Romano’s bio is at http://www.kalmansamuels.com.

Based on what he saw, Mr. Romano laid out the steps along a course with which we readily agreed. Understanding a risk of failure is always part of the landscape, he nonetheless has a high level of confidence in a favourable outcome, rooted in his experience in this area. As is to be expected, time is needed to accomplish the incremental stages in this action against Correctional Service of Canada, and always anticipating additional potential delays and complications.

We are both encouraged and relieved to be on the move, to be stepping out onto the field. It just may take a while before we broadcast a play.