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February to April 1994: The Unger, Ratcliff and McKay Cases -- Fighting, Assaults or Threats to Assault

Of all the offences in the prison disciplinary code, the offence of "fights with, assaults or threatens to assault another person" covers the broadest spectrum of behaviour, ranging from two prisoners squaring off in a "fair fight" involving no injuries to assault causing bodily harm. It is also the offence which, at the most serious end of the spectrum, carries with it the most dire consequences for a prisoner, including transfer to the Special Handling Unit. The offence can be committed in three ways, each of which involves different considerations. The first mode, fighting, would seem to be the least problematic. During my research, all three Independent Chairpersons, whether at Matsqui or at Kent, were consistent in ruling that a prisoner who had not initiated a fight but was defending himself from an attack had a good defence to a charge of fighting. Notwithstanding this correct legal interpretation (affirmed in the Federal Court judgement of Clark v. Fox, [1998] F.C.J. 459 ), prisoners at Kent were regularly charged with the offence of fighting even when it was clear that one of them was acting in self-defence.

in March 1994, Mr. Unger faced a charge of fighting arising from an incident with Mr. Mohamoud. He pleaded not guilty, testifying that Mr. Mohamoud had thrown his coffee at him and then started swinging. When he grabbed Mr. Mohamoudís hands, the two of them slipped on the coffee and fell to the floor. Mr. Mohamoud grabbed hold of Mr. Ungerís hair, and it was at this point that Officer Howard came on the scene. Mr. Unger told Mr. Walters he had no idea what started the fight. He had been talking to Mr. Mohamoud and then, all of a sudden, Mr. Mohamoud threw his coffee. Mr. Unger said, "I was just trying to avoid being hit and was defending myself. I never hit Mr. Mohamoud."

Officer Howard essentially corroborated Mr. Ungerís account. Her observations were that Mr. Mohamoud was the aggressor. She said she never saw Mr. Unger striking Mr. Mohamoud, only defending himself. Mr. Walters found Mr. Unger not guilty.

The fact that this case ever got to disciplinary court was of some concern. Officer Howard, in her offence report, had written, "Inmate Unger was involved in a fight. However I did not observe him strike out but rather defend himself." In light of the unequivocal evidence that Mr. Ungerís actions were purely in self-defence, why was a charge written up on Mr. Unger, and why was it designated a serious charge by the unit manager? After Mr. Unger had left the courtroom I spoke to him briefly, and he told me that following this incident he was taken to segregation and kept there for five and a half days until he was released back to his unit. When I spoke to the unit manager for segregation about this later in the day, she said it was standard policy that both prisoners involved in a fight were taken to segregation, because it was usually difficult at the time to determine who was responsible. However, Officer Howard had been quite clear in her report that Mr. Unger was defending himself, and it should not have taken five and a half days to confirm this fact.

The issue of what constitutes a threat to assault -- a second mode of committing this offence -- came up in a case in February 1994 involving Mr. Ratcliff. Officer Howson testified that when he was doing the count he had told Mr. Ratcliff to lock up and Mr. Ratcliff responded by saying, "I wish I had a shotgun, Iíd blow your fucking head away." Later that day the officer went to Mr. Ratcliffís cell and told him he was going to be charged for what he had said, to which Mr. Ratcliff replied, "If I had a shotgun I would shove it up your nose." Mr. Ratcliff had no questions of Officer Howson but testified he had not said what the officer claimed he had. He explained that, after being told to lock up, he was going back to his cell when saw the guard in the control bubble and thought to himself, "Itís only by the barrel of a gun that Iím being locked up." While he was thinking this, he said to Officer Howson, "If I had a shotgun you sure as hell wouldnít be locking me up." Mr. Walters then asked Officer Howson, if he could have misunderstood what Mr. Ratcliff said. Officer Howson replied, "Thatís not the way I heard it."

Speaking in his own defence, Mr. Ratcliff made a statement that the whole incident had happened because he was frustrated about having been on cell lock-up for six weeks after being suspended from work. He argued that if this was a "street charge," it would be thrown out, because it was not a threat. As he understood the law, a threat had to be perceived as real, and there was no way this one could be, because it was impossible for him to get a shotgun in prison. "It was an off-the-wall comment that you make when you feel that youíve been done wrong," he said. Officer Howson replied that he had been in the institution for five years and this was the first time he had laid a charge against a prisoner.

Mr. Walters said he was satisfied that the statements had been as the officer testified and that they did make out the charge. In his view, the comments were so inflammatory that, even if Mr. Ratcliff could not get hold of a shotgun, it was to be inferred that if he would use something else as a weapon if it came his way, and in that sense he had definitely made a threat. Ms. Knopf said that normally she would ask for a period of segregation for a threat to assault, but because of overcrowding in segregation she would recommend a fine of substantial proportions. Mr. Walters imposed a fine of $25.

The Corrections and Conditional Release Act provides no interpretive guidance on the definition of a threat, but s. 265(b) of the Criminal Code of Canada (R.S.C. 1970, c. C-34) provides that:

A person commits an assault when:

he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose.

This definition of assault therefore includes a threat to assault, and as such the threat must meet the criteria set out in the balance of the section. Under this definition, Mr. Ratcliffís submission that his behaviour would not constitute a criminal offence of assault has some merit, given the lack of any reasonable grounds to believe that he had the present ability to effect his purpose, because he did not have a shotgun. However, using this same definition, Mr. Walters could reasonably draw the inference from the nature of his comments that Mr. Ratcliff was prepared to make good on his threat, using whatever alternative might be at hand. Given that there was no physical barrier separating Mr. Ratcliff from the officer, he did have the present ability to carry out the threat.

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