ICP : Okay. Officer
Tate, you can stay if you wish. I'm just going to review these notes here.
Well, Mr. Wagner, I know you'll agree we've listened carefully and looked
thoroughly at the events here of July 7, and I can tell you that I find
both your evidence and the evidence of Officer Tate to be quite candid
and quite frank. The charge that I have to address is one of "fights with,
assaults or threatens to assault another person." Now, the "assaults or
threatens to assault" usually follows a completely different pattern,
so I'm looking here at what is the nature of a fight. In looking at the
evidence, it clearly boils down to the events in your cell, involving
what I would call a bit of a push and shove. Whatever the mistaken motivations
of the parties, whether you were trying to open the door or close the
door or what your intention was, I do find that in the circumstances a
fight took place. I do not find that there was a threat by you to assault
[emphasis added]. I think that the fight speaks for itself. Now, having
found that, it follows that a guilty finding will ensue, but I want to
note as well that clearly you were no sooner engaged in this shoving than
you realized that this obviously was not appropriate and clearly this
officer reached the same conclusion and that as a fight it sort of stopped
the moment it started, or very soon thereafter. So in the circumstances
I find that the charge is made out, but it is in fact of a lesser degree
[emphasis added]. I mean, I can envision a conviction under this [section]
with a lot more activity and confrontation than took place here. So with
that in mind, I'm going to defer here to Mr. Gerl [the institutional advisor]
and ask if you have any inquiries to make of this inmate, and then I'd
like to hear a little bit about how long you've been here and what you've
been doing while you've been here. Mr. Gerl, any comments or inquiries?
Advisor]: I have a comment, that you indicated in your testimony that
you didn't want a confrontation. It seems to me from the testimony here
that very clearly you escalated the matter by not dealing with it when
Mr. Tate initially asked you to turn it over, and you could have resolved
it there. I think that by forcing the exchange you sort of escalated the
situation to where you're in court here, and I think as Mr. Routley has
indicated you both more or less realized at that time that this is a mistake,
you shouldn't be doing what you're doing, and that's good. I just wish
you hadn't pressed the matter. You should have co-operated with Mr. Tate
and we wouldn't be here today.
ICP : Now, what by
way of sanction? I can tell you, I've sent people to the bucket here for
30 days and put a $50 fine on fighting charges. I'm not inclined to do
that in this circumstance. But I want you to tell me how long you've been
P : About six months
ICP : How long a sentence
are you doing?
P : Twenty-eight months.
ICP : Well, I'm inclined
to put some time over this inmate's head [give him a suspended sentence].
IA : I would recommend
time over his head and an upper-end fine.
ICP : Do you have a
job here right now?
P : Yes, I do.
ICP : What are you
P : I go to school.
ICP: Well, I'm going to put 30 days over your head
for 90. [That is, if the prisoner remained charge-free for the 90 days,
he would not have to serve the 30 days in segregation; conversely, if
he was charged within that time frame and convicted before the Independent
Chairperson, he would have to serve the 30 days together with any further
sanction imposed for the new charge.] And I'm going to take into account
actually the immediate way this fight was broken off. I think that indicates
that to some extent you were aware this was inappropriate, and Officer
Tate as a result suffered no further prejudice to himself. That being
the case, I'm going to impose a fine. Mr. Gerl, I can't agree on an upper-end
fine on this. I'm going to put a mid-range fine in place and I'm going
to impose a fine of $25.
P : May I add something
further? I'm due for parole on the 16th of August. This, what I'm being
charged for now, was already written up on my file. It was already wrote
up that I assaulted Mr. Tate and I grabbed him by both arms and pulled
ICP : I don't mean
to cut you off, but I can tell you there's very complex rules in law regarding
what goes in the file that a Parole Board looks at. You can be represented,
and you'll have an opportunity at the time at any Parole Board hearing
to address the charge and the results of that charge. I don't know if
I can note here . . . I think a Parole Board looking at this, really,
realizing that you didn't draw any hole time immediately, would realize
that there were certain mitigating factors to the facts of the charge
and you'll have an opportunity to tell them that. But I don't want to
comment any further on anything to do with parole.
P : All right.
ICP : All right, thanks
very much then.
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