August 1993: Mr. Wagner's Second Appearance

The six cases of contraband brew were the only cases dealt with at the disciplinary court on August 18. At 10:15, court was ended abruptly when the Independent Chairperson was informed that all prisoners were being returned to their cells because of an assault by one prisoner on another in a walkway.

We later learned the victim of the assault was Mr. Conte. He had been attacked with a weight bar and had suffered a skull fracture and severe bruising across his stomach. He had been taken to the MSA Hospital in Abbotsford but brought back to Matsqui the next day and was now in stable condition in the prison hospital. Mr. Wagner was accused of the attack; he was taken to segregation after the attack occurred and later charged with the disciplinary offence of assault.

The involuntary transfer of Mr. Wagner to Kent Institution initiated in July, following the alleged assault on Officer Tate, had not been pursued on condition that Mr. Wagner sign a behavioural contract agreeing to participate in certain programs. Following the attack on Mr. Conte and the further disciplinary charge of assault, a second involuntary transfer package was prepared. The progress summary supporting the transfer asserted that Mr. Wagner "was recently convicted in disciplinary court for assaulting an officer in the living unit following a frisk of his cell." The report went on to state:

His current situation has arisen as a result of his attack on another inmate in the walkway. He attacked this inmate with a weight bar and hit him twice on the skull resulting in profuse bleeding. He then ran to the gym to return the bar and then showered. Mr. Wagner was located in his cell and immediately segregated as a result. (Progress Summary, Matsqui Institution, August 24, 1993)

The principal observation report relating to the assault on Mr. Conte was that of Correctional Supervisor Ford, the only officer who saw the attack. His report stated:

At approximately 09:20 a.m. I was returning from the exercise yard from a conversation with CO-II Ginger. As I approached the walkway area I observed through the chain-link fence an inmate being assaulted by another inmate with what appeared to be a metal bar approximately 15 to 20 inches long. I immediately yelled to the assailant to stop and I then proceeded to the scene. As I was approaching the scene, the inmate assailant again struck the victim to the shoulder area. I called central control and requested medical and staff assistance immediately to the S.I.S. area. When I arrived at the S.I.S. [Stores and Institutional Supplies] area, the victim was beginning to fall towards the ground so I directed him to the ground to prevent further injury. As this inmate came to rest on the ground I yelled to the assailant to remain where he was standing. When I looked back to see the assailant he was just going out of sight into the gym area. I instructed Officer Ginger to watch over the victim and I proceeded to the gym area. As I approached the gym I indicated to Correctional Supervisor Furst to enter the gym at the door nearest him while I entered at the second door. When I entered the gym, I took a look around and found two possible suspects that resembled the assailant. I asked Officer London to identify the two inmates and he stated that one was inmate Wagner and the second was inmate DaSilva. I approached the universal gym area to find the weapon that was used on inmate Conte. I found the weapon on the floor in front of the universal gym. Another inmate was just about to pick this weapon up so I removed it from the area. The weapon appears to be a handle from the universal gym. I then proceeded outside the gym and asked an inmate his name. This inmate stated his name was inmate Wagner and he continued walking towards the kitchen. I was now pretty sure that inmate Wagner was the assailant . . . A lock-down was ordered by Unit Manager Irv Hammond and then a count was done. During the count in the living unit, I assisted in the removal of inmate Wagner from his cell to the special management unit. Inmate Wagner was observed prior to the count taking a shower and then changed his clothes. Inmate Wagner stated several times during his escort to the S.C.U. area that he was always being blamed for something and pleaded that he had done no wrong. (Officer Observation Report, Matsqui Institution, August 18, 1993)

None of the other officers who filed observation reports had observed the attack, and they were therefore not able to identify the assailant.

In his response to the involuntary transfer package, Mr. Wagner had denied any involvement in the attack on Mr. Conte. He claimed he was in the gym when the attack happened and saw the staff running about and went to investigate. Two staff members approached him and told him and the other prisoners to stay in the gym. He questioned why, if the staff were sure he was the person involved in the assault, he was not grabbed at that time and taken to segregation. He acknowledged taking a shower after he left the gym; his explanation was that he had not taken a shower that morning and, having been in lock-down situations before, he knew it might be several days before he got another one.

Mr. Wagner's case appeared on the docket of the disciplinary court in August and was adjourned several times to enable him to obtain legal counsel. A further adjournment was granted at the institution's request in September because of the unavailability of Officer Ford. A hearing date was finally scheduled for October 13 and was made "pre-emptory" on Matsqui. This meant that there would be no further adjournments granted to the Institution.

Meanwhile, the involuntary transfer process proceeded. Having received Mr. Wagner's written response, Warden Brock affirmed the recommendation for involuntary transfer. In his reasons, he stated:

Following the investigation by security staff, you were positively identified as the individual who attacked inmate Conte. This attack resulted in a skull fracture and inter-cranial haemorrhage requiring emergency medical attention. This unprovoked attack confirms that you continue to show violent tendencies and are not appropriate for a medium-security institution. (Notification of Review and Recommendation Relative to Transfer, Matsqui Institution, September 7, 1993)

That recommendation was upheld by the Assistant Deputy Commissioner in a decision dated September 22. The decision stated:

Given Mr. Wagner's continued problematic behaviour and his recent assault of another inmate, transfer to maximum-security is warranted.

Following that decision -- and prior to October 13, the hearing date set for the disciplinary charge -- Mr. Wagner was transferred to Kent. On October 12, his counsel was informed by Matsqui that the disciplinary charge against Mr. Wagner would be administratively withdrawn at the hearing, because Mr. Ford was on annual leave and would not be available for the hearing.

On the day of the hearing, I was shown a copy of an earlier memorandum sent to Mr. Ford advising him that his appearance in court was imperative on October 13, because the Independent Chairperson had made the case pre-emptory and, if Mr. Ford was not there, the case would be thrown out of court. Mr. Ford had responded, "You might as well dismiss this case and save time and money. I'll be on annual leave on October 13, 1993." After the administrative withdrawal of the charge at the hearing, I asked Mr. Gerl, the institutional advisor, what effect this withdrawal would have on Mr. Wagner's transfer, given that the alleged assault was the principal basis for it. Mr. Gerl said it would not have any impact. Mr. Wagner's record showed that over a period of time he had been unable to conform to the rules at Matsqui. And since the charge had been withdrawn administratively rather than dismissed by the Independent Chairperson, the incident could still be relied upon as a basis for the transfer. In other words, the administrative withdrawal denied Mr. Wagner the opportunity to establish his innocence of the charge, the proof of which was the central element in his involuntary transfer.

The case against Mr. Wagner was far from overwhelming. Officer Ford, in his observation report, had stated that upon entering the gym he saw "two possible suspects that resembled the assailant." On the basis of a further discussion with Mr. Wagner, he became "pretty sure" that Mr. Wagner was the assailant. A cross-examination of Mr. Ford would have been critical at the disciplinary hearing. The questioning would have addressed such issues as the distance Mr. Ford was from the assault at the time it occurred; his description of the assailant; and his observations about whether Mr. Wagner's body or clothes had blood on them. This last point was extremely relevant, because the inference the institution had drawn against Mr. Wagner was that he had taken a shower and changed his clothes to get rid of telltale signs of the assault. Since the assault had caused profuse bleeding, it was likely that some of the blood would have splattered onto the assailant. Yet Mr. Ford's observation report did not note any incriminating presence of blood on Mr. Wagner or his clothes. In the absence of a hearing, there was no testing of Mr. Ford's observations, and Mr. Wagner had no opportunity to explain his actions before or after the attack. While there was no conviction on his disciplinary record for this assault, he was nonetheless treated for all correctional purposes as if he had been convicted. Subsequently, he remained at Kent for the balance of his sentence.

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