A month after he was released from jail by the Court of Appeal, Mr. MacPherson was arrested again on new charges relating to the theft of another car and received a further jail sentence. While serving that further sentence, he filed a habeus corpus petition in which he alleged that he was denied access to a telephone to phone a lawyer and when he banged on his cell door demanding his rights, he was stripped to his underwear, strapped to a stretcher and left in his cell for several hours during which time the circulation in his hands was cut off. At the hearing before Mr. Justice McLellan, the court had the benefit of a videotape taken of the incident about which Mr. MacPherson complained. As described by Mr. Justice McLellan, the videotape showed the following:

[Mr. MacPherson's] cell was completely bare with no bed, no mattress, no blankets, no personal effects and no window except a small window in the solid steel door. The cell contained a steel toilet, wash basin and Mr. MacPherson. He is shown wearing only his underwear and socks.

At the start of the video a guard is shown warning Mr. MacPherson through the window in the cell door "for the last time" to cease banging on the cell door. Apparently Mr. MacPherson had been kicking the heavy solid steel door with his socked-feet intermittently for about an hour and a half as a way to try and get the guards to let him call a lawyer . . .

On the tape Mr. MacPherson replies to the warning to cease banging the cell door by hitting the door and shouting at the guard:

Are you gonna let me call a lawyer, you piece of shit?

Mr. MacPherson had been trying to get a lawyer for at least forty days . . . Against that background of forty days, I understand Mr. MacPherson's frustration and his extreme rudeness to the guard. I also infer that a major reason the guard did not promptly take Mr. MacPherson to the telephone is that the guard knew Mr. MacPherson still did not have a legal aid certificate and thus that it would be extremely unlikely for him to be able to get a lawyer to take his case . . .

On the video the guard disappears from view. Mr. MacPherson kicks the cell door a bit more as the stationary camera in the corridor recalls the scene. Then all is relatively quiet for several minutes until a group of guards come into sight of the camera and open the cell door.

Mr. MacPherson does precisely what they tell him to do. He offers no physical resistance. Someone adjusts the angle of the camera as the guards have Mr. MacPherson lie face-down on a long padded board which has some straps attached to it. The board is some sort of stretcher. It is about six feet long. The group of guards secure Mr. MacPherson face-down to the stretcher with a number of "seat-belt" style straps and other fasteners. While the camera coverage is not complete, it appears that Mr. MacPherson is securely fastened to the stretcher at the upper back, waist, knees, ankles and wrists with the "seat belts", handcuffs and what appears to be plastic ties, somewhat like those used to tie electrical cables together.

The evidence does not suggest that Mr. MacPherson was strapped to the stretcher for his own protection or for the protection of others. The conversation on the videotape indicates that Mr. MacPherson was strapped to the stretcher "for banging the door" and "creating a disturbance".

On the video a hockey helmet, with attached wire mesh face mask, is secured to Mr. MacPherson's head. Apparently that helmet was put on him so that he could not hurt his head while strapped to the stretcher.

Then the guards carry Mr. MacPherson on the stretcher back into his cell. The fastenings are then checked and adjusted by a guard kneeling on Mr. MacPherson's back and appearing to re-tighten the strap across his upper back. The strap is rigged on the outside of one arm and on the inside of the other. At about that time Mr. MacPherson feels he was beaten or jabbed although it is hard to tell from the video. Unfortunately, a few seconds of the original video were accidentally erased in court at that point. In any event it is clear from the video that a guard was kneeling on Mr. MacPherson's back. Although Mr. MacPherson offers no physical resistance to the guards, he makes a number of comments that are recorded on the tape at different times while the guards are securing him on the stretcher. Among the things Mr. MacPherson says are:

I'll sue your fucking ass, man . . .

I'm glad you got this on film, man . . .

This is what you get when you want to call a lawyer . . .

My circulation in my hand is cut off . . .

I just wanted to call a lawyer, man . . . you're hurting me, you're grabbing against my fucking nose . . . you're choking me, I can't breath, get off of me.

Possibly the guards were "chewing him out" and did not hear or fully understand the significance of Mr. MacPherson's comments on the tape that:

My circulation in my hand is cut off . . . the circulation is cut off.

Then the tape shows the guards leaving Mr. MacPherson alone on the floor of his cell, strapped to the stretcher. A guard shuts the cell door and locks it . . . After about four minutes has passed eventually the tape records Mr. MacPherson calling repeatedly for help. He loudly complains that his circulation is cut off and his hand is turning purple. The response to Mr. MacPherson's cries for help from the guards seems very slow on the video. He continues to cry for help about his hands and that they are cold. He may also be shouting "my head". After his cries sound as if he is panicking, the guards enter his cell. While strapped to the stretcher alone in the cell, Mr. MacPherson had somehow managed to get the hockey helmet off his head. The video shows a guard using wire cutters to cut off a plastic tie from Mr. MacPherson's right wrist. Then eventually the guard replaces that plastic tie. As he remains lashed to the stretcher on the cell floor Mr. MacPherson tells the guards such things as . . . "you fucking insane bastards . . . you'll die, I'll kill you, I'll take your fucking life . . . this is illegal, man . . . I want to call a fucking lawyer."

Eventually a woman who appears to be a nurse arrives within the field of view of the camera, inquires to a guard about the helmet being off Mr. MacPherson, takes and records Mr. MacPherson's pulse and then leaves. That record of his pulse was not offered in evidence. Nor was there any evidence offered as to any possible health risks associated with treating a human being the way Mr. MacPherson was being treated.

The guards again leave Mr. MacPherson alone in his cell and strapped to the stretcher . . . every fifteen minutes or so a guard appears and glances in the window of the cell door. About an hour and one half after the cell door is locked, this tape abruptly ends.

It is not clear how long Mr. MacPherson was left strapped to the stretcher, although he thinks it was about three hours. From the original video, it appears to have been more than two hours.

Throughout on the video the seven uniformed guards and the nurse appeared to be "just doing their jobs". Their calm, relaxed and unhurried manner suggest that strapping Mr. MacPherson on the stretcher and checking him is just another routine event in the public service of the Province of New Brunswick. The video does not indicate any loss of control, stress, anger, hostility or impatience on the part of any of the guards or the nurse. When Mr. MacPherson is complaining just before the nurse checks him, one of the uniformed guards says to Mr. MacPherson:

I have a job to do and I'm doing my job, mind your own business. (Reasons for Judgment of Mr. Justice McLellan, p. 8-13)

Mr. Justice McLellan found that Mr. MacPherson "was the victim of the use of unreasonable and excessive force and illegal actions by New Brunswick jail guards when he was strapped to the stretcher" and that "he was a victim of cruel and unusual treatment and arbitrary detention in violation of his rights under s. 12 and s. 9 of the Charter ." (p. 14)

Having found a violation of Mr. MacPherson's Charter rights Mr. Justice McLellan went on to determine what remedy would be "appropriate and just in the circumstances" pursuant to section 24(1) of the Charter of Rights. That remedy was framed by his Lordship in this way:

Borrowing words from the decision of the Court of Appeal in Mr. MacPherson's June 1995 case, "to emphasize that violations of these Charter rights are serious" and that "justice does not stop" inside New Brunswick jails, I grant Mr. MacPherson habeus corpus relief and relief under section 24(1) of the Charter by ordering:

(a) that Norman Hector MacPherson's New Brunswick sentences are reduced to time served, a reduction of about three months . . .

(b) that this relief to him under section 24(1) of the Charter is made without limiting or reducing Mr. MacPherson's rights to sue for damages for any causes of action that he may have relating to his incarceration in New Brunswick jails in 1995 . . .

(c) that without leave of the Court first being obtained, the Crown may not initiate or proceed with any criminal charges against Mr. MacPherson in this province for uttering any threats against any guards or staff of any New Brunswick jail, creating a disturbance in a jail or for any related charges during the year 1995. (at 15)

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