May 1994: The Chartrand Case -- A Correctional Video and The Eye of the Beholder

On May 24, 1994, Mr. Chartrand appeared before Mr. Fox facing two charges which originated in the Regional Psychiatric Centre. I arrived for court early that day. Standing outside the courtroom were two officers from the RPC, who, together with half a dozen officers from Kent, were reviewing a video of the incident on a television monitor. The RPC officer showing the video immediately shut it off when he saw me, thinking I was Mr. Chartrand’s lawyer. Correctional Supervisor Knopf explained to him that I was doing research, and the tape was switched back on.

The video showed Mr. Chartrand in his own cell being told by three officers to go to the RPC segregation area. He was frisked by one officer and handcuffs were applied behind his back. Mr. Chartrand was then escorted out of his cell and out of his unit. While being escorted, he was swearing at the officers, and about halfway along the corridor he suddenly turned around, as a result of which he fell to the ground. It was not clear whether he was pushed or slipped. He was then made to walk backwards, with the officer pulling him along by the cuffs. At this point Mr. Chartrand’s shirt was off his shoulders. The video showed Mr. Chartrand being placed in the segregation cell. He was placed face down on the bed, and while one officer removed his handcuffs, the other knelt on his lower torso. There was nothing in the video to indicate why Mr. Chartrand should be held down like this; there was no indication of his struggling with the officer removing the cuffs. After the cuffs were removed, Mr. Chartrand was told to strip. While doing so he angrily asked one of the officers for his name and went on to state, "I will deal with you in my own way on the street and that’s not a threat, it’s a promise." Mr. Chartrand also requested a telephone call to his lawyer and was told by one of the officers that while he was acting up he would get nothing, but if he calmed down he would be allowed to make a phone call. After stripping, Mr. Chartrand was told to place all his clothes in a bag. He complied, putting his boots on the top of the bag. He then picked up the bag and threw it at one of the officers standing by the door. It was evidently the action of a very frustrated and angry man. At this time Mr. Chartrand was completely naked; he made no other movement towards the officer, nor did he say anything. The immediate reaction of one of the officers, however, was to rush at Mr. Chartrand and throw him onto the bed with his hand around Mr. Chartrand’s throat, at which time he squirted Mace into Mr. Chartrand’s mouth and face. Mr. Chartrand is seen face down on the mattress making choking sounds. While he was still choking, the officer put handcuffs on him. Mr. Chartrand was then left in his cell completely naked, handcuffed behind his back.

The next images in the video show events some time later, when another officer came to the cell and Mr. Chartrand was asked whether he had calmed down enough that the handcuffs could be taken off him. He again asked to call a lawyer and also to see a nurse, because his face was burning from the gas. The officer removed the handcuffs and told Mr. Chartrand to wash his face under the tap. Mr. Chartrand repeated his request for a lawyer and a nurse and requested a Valium for the pain the gas had caused him. The officer again told him to wash his face under the tap. Mr. Chartrand refused to do that until he had seen a nurse. At this point one of the Kent officers watching the video commented sarcastically that Mr. Chartrand’s refusal to wash his face indicated how seriously hurt he was by the gas.

From my perspective, the video showed a prisoner subjected to gratuitous force, overpowered by strength of numbers, left without a shred of dignity and yet expected to somehow control his rage in the aftermath. The officers watching this video clearly saw staff doing their job and following standard procedures.

Mr. Fox arrived and the hearing began. The offence report, written by Officer Strum, gave the following account of the first charge, an alleged assault. "Did at 1205 hours yell at the writer, ‘I will kill you when I get onto the street.’ At this time he had his fist in front of my face with a finger pointed at me. After saying this the subject continued to yell and scream at staff when his cell door was locked. The inmate also referred to myself as ‘being dead meat when I get out.’ " Officer Strum testified that on April 18, Mr. Chartrand had approached him and was verbally abusive, saying, "You are my f-ing CO-II and it is up to you to take care of my requests." Officer Strum told Mr. Chartrand to lock up. He initially refused to do so, then complied when given a direct order. Subsequently, Officer Strum went to Mr. Chartrand’s cell with a nurse, and Mr. Chartrand told him he would kill him when he got on the street. Asked by Mr. Fox if he saw this as a serious threat, Officer Strum replied, "I perceived these threats to be real, and if I ever see him in my own neighbourhood I will deal with him accordingly."

Mr. Chartrand was asked whether he had any questions of this officer. He stated that he never used the word "kill," what he had said was, "I will have you dealt with in my own f-ing fashion." Mr. Fox asked Mr. Chartrand what he meant by that. Mr. Chartrand responded, "It doesn’t matter." To this, Mr. Fox replied, "It does matter. It’s important that I know your intention at the time you made this statement." Mr. Chartrand responded, "I did not mean anything. I was just angry."

On the second charge of assault, Officer Strum testified that while Mr. Chartrand was being placed in a screened cell, he again threatened him and this time threw his clothes and boots at him, hitting him with the boots. Then Officer Strum suggested the video of the incident be played. The video was stopped just after the other officer is shown taking Mr. Chartrand down onto the bed and holding him by the throat, but before he is gassed. Mr. Fox had the segment showing Mr. Chartrand throwing his clothes played back three times. Mr. Chartrand was then asked if he had any questions of Officer Strum or any comments he wanted to make. He said, "You could see in the video that I was not trying to assault Officer Strum. I threw my personals at him like a basketball toss -- no way did I assault him."

Mr. Fox then gave his judgement. "As to the first charge, I am satisfied that the charge is made out. The words and the way you said them can only be taken to be a threat. On the second charge, I am not satisfied that an assault was made. You were clearly upset, and while you did throw your clothes at the officer, I don’t think you intended to assault him."

Mr. Chartrand was asked if he had anything to say before punishment was imposed. He responded that he had already spent one month in segregation because of this offence. After the incident, he had been kept in the screened cell overnight and then was released back to general population at the RPC. Four days later he was transferred to Kent and had been in segregation ever since. He had been told by the Segregation Review Board that he was being kept in segregation only because of these outstanding charges. The court advisor confirmed this.

Mr. Fox asked the court advisor for the institution’s recommendation. She recommended 45 days’ segregation but felt that the 30 days already served in segregation should be taken into account, which would result in a sentence of 15 days’ segregation. Saying that he was taking this earlier segregation time into account, Mr. Fox imposed a sentence of 20 days’ segregation.

I found this sentence to be unjustifiably severe, and it did not comport with the requirement of the legislation that any sanction take into account administrative measures imposed as a result of the offence. Mr. Chartrand had spent thirty-two days in segregation solely as a result of these charges. He was found not guilty of one of the charges, and under the CCRA, the other charge carried a maximum of 30 days’ segregation. Yet he was now required to serve a further 20 days. The impact of this sentence was that Mr. Chartrand would serve a total fifty-two days in segregation for the single offence of threatening to assault: twenty-two days more than the permitted maximum, and seven days more than the maximum permitted for multiple offences. Even at that point his sentence would not be over, because he would have to await his turn for bed space in the general population.

Mr. Chartrand’s case was one where representation by counsel would likely have made a significant difference to the outcome. While Mr. Fox correctly applied the law to the evidence in convicting Mr. Chartrand of one charge and acquitting him of the other, counsel’s submissions would have focussed on the appropriate sentence. One of my findings in my 1972 and 1983 studies was that prisoners were given credit for their pre-trial segregation on a haphazard basis, if at all. Yet the CCR Regulations contain specific provisions designed to ensure that pre-trial segregation is taken into account in determining a disciplinary sanction. The sentencing guidelines require that, in determining a sanction, the Independent Chairperson consider any measures taken as a result of the commission of the offence and, even more importantly, provide that "an inmate who is serving a period of segregation as a sanction for a disciplinary offence shall be accorded the same conditions of confinement as would be accorded to an inmate in administrative segregation.(s. 40(3))" In other words, prisoners in administrative and disciplinary segregation are to be treated equally so far as their rights and privileges are concerned. And so they should be, since the operational reality at both Kent and Matsqui was that a prisoner serving a disciplinary segregation sentence could find himself sharing a cell -- and a legal regime -- with a prisoner serving administrative segregation. The clear implication of these provisions is that a prisoner confined in administrative segregation as a result of a disciplinary charge should, if convicted, be given credit for every day served in administrative segregation. Had Mr. Chartrand been represented by counsel, this argument could have been presented, coupled with the submission that Mr. Chartrand had already served more than the maximum time that can be imposed for a disciplinary offence and therefore no further segregation should be imposed.

Furthermore, counsel would have ensured that when the videotape was played for Mr. Fox, it was not stopped after Mr. Chartrand threw his boots but continued rolling to show the level of force used against Mr. Chartrand, including the spraying of Mace into his mouth at point-blank range. As it was, Mr. Fox never saw this and therefore was not able to take it into account in determining a fair sanction.

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