December 1994 and January 1995: The Rogers and Polak Cases -- Double Bunked in Segregation

Mr. Fox, in acquitting Mr. Mack and Mr. McLaughlin, had referred to the inferences of knowledge that could be drawn from the circumstantial facts of the discovery of the item in their cell. The B.C. Court of Appeal in the case of R. v. Wing Hong To, in addressing this issue, stated:

. . . It is legitimate to infer knowledge from mere physical possession in proper circumstances, which inference will be displaced if an explanation is offered which raises a reasonable doubt or if . . . other inferences consistent with innocence may be drawn from all the proven circumstances. It is this rational process which distinguishes inference from speculation or conjecture. ( R. v. Wing Hong To, Reasons for Judgment , July 30, 1992, B.C. Court of Appeal)

The law is not directed solely to the Independent Chairperson in his adjudication of cases that come before him. It is also applicable to correctional officials in their determination of whether the evidence justifies laying a charge in the first place. However, at Kent Institution, there was little evidence that in a double bunked situation unit managers took into account the particular circumstances of each case in determining whether it was appropriate to lay a charge.

Mr. Rogers and Mr. Polak were both charged with possession of contraband in the form of five litres of brew and associated brew material (two lbs. of sugar, 1 brew mash and 1 straining bag). The officer’s statement attached to the offence report indicated that the brew was found in a box under the lower bunk and the other items were found in a clear plastic garbage bag. The brew was analysed at 11 per cent alcohol. At his first appearance Mr. Rogers indicated that he was prepared to proceed and pleaded not guilty stating that he did not dispute that the items were found in the cell. Mr. Fox asked him whether his defence was that he was not aware that the brew was in the cell. Mr. Rogers responded that he had been in the cell with Mr. Polak until about nine days before this offence took place. He was then transferred to Victoria to deal with outstanding criminal charges and returned to Kent the day before this offence occurred. He arrived late in the evening and was placed in one cell; the next morning he was placed back in his old cell with Mr. Polak. The search was done later that day and the brew was discovered.

Officer Logan gave evidence that he was called down to J Unit as a result of a report that Mr. Polak had fallen out of his bunk and injured himself. On talking to Mr. Polak, Officer Logan detected alcohol on his breath; suspecting that he might be under the influence, he called the nurse. The nurse confirmed that Mr. Polak was under the influence and he was taken to Health Care. It was as a result of the suspicions aroused by the detection of alcohol on Mr. Polak, that a thorough search was done of the cell and the brew and the mash were discovered.

After Officer Logan’s evidence, Mr. Fox asked Mr. Rogers whether he knew that the sugar and the brew mash in the garbage bag were there. Mr. Rogers replied, "Kind of, yes." Mr. Fox further asked Mr. Rogers, "Did you know that there was a quantity of brew under the bunk?" Mr. Rogers responded, "Yes." When Mr. Fox asked him how he knew that his reply was, "I have a nose." Mr. Fox also asked him whether he had participated in taking any brew. Mr. Rogers said that he did not and had not taken a drink in over three years. Mr. Fox asked him, "What were your intentions with respect to the brew?" Mr. Rogers’ response was, "I had no intentions." Mr. Fox asked him whether he intended to just let it sit in the cell. Mr. Rogers’ response was, "It was not mine. I am not a guard. I can’t tell another prisoner that they can’t have a brew or tell the guards to come and take it."

The case was then adjourned because Mr. Fox wanted to hear from one other officer who had actually escorted Mr. Rogers out of the cell while Officer Logan conducted the search. In Officer Logan’s evidence he said that he had not had any contact with Mr. Rogers and therefore had formed no opinion as to whether or not he was also under the influence. Although Mr. Fox did not say so, I took from his request to hear from the other officer that he wanted to be satisfied that Mr. Rogers had not taken any of the brew, thereby implicating himself in the possession of Mr. Polak.

Mr. Polak’s evidence was heard next and he said that he was prepared to plead guilty because it was his brew and he wanted to make it quite clear that Mr. Rogers was not in any way involved in its preparation or in its consumption. Mr. Rogers had been in Victoria for eight days and it was during this period that Mr. Polak had prepared the brew. Mr. Rogers should never have been charged because he informed the guards at the time the brew was discovered that it was his and that Mr. Rogers had nothing to do with it. Mr. Fox asked Mr. Polak if he had any explanation why he had made the brew. Mr. Polak answered that December 9 was the second anniversary of the day in which his wife had been raped and murdered and he just wanted to drown his sorrows and get drunk. He went on to say that he had completed the Maxi-flex Program at the RPC in September but the only reward he got for it was to be returned to Kent and placed in segregation, not because he had done anything wrong, but because there was no cell space in population. He had therefore sat in segregation for over 60 days and understood that he was next on the list to go into the population. He had never been convicted of a brew charge before and gave his word that he would never get involved in one again.

Ms. Lamm, the Court Advisor, recommended that the sentence for Mr. Polak be 30 days segregation suspended for 90 days, in light of the lengthy time he had already spent in segregation. This would avoid the need for him to serve any punitive time and delay his release to the population. Mr. Fox accepted that recommendation pointing out to Mr. Polak that it was a lenient sentence in light of the normal 30 days segregation imposed for possession of brew.

When Mr. Rogers’ hearing resumed, further evidence indicated that at the time when Mr. Rogers was escorted out of the cell he did not exhibit any signs of being under the influence. Mr. Fox acquitted him of the charge of possession of contraband on the grounds that he was not in the cell at the time when the brew was made, had not participated in its consumption, and therefore his mere presence in the cell in which brew was found did not constitute possession.

Mr. Fox in giving his judgement stated, "It is not sufficient to make out this charge for you just to be in a cell in which brew is found. There has to be something to connect you with it beyond simply knowing that it is there. I’m not satisfied that there is any legal duty upon you to report the presence of brew. In the unique circumstances of this case in which you had only been placed in the cell on the day the brew was found I find that you do not have the necessary intent to possess the brew."

Mr. Fox’s decision was the right one. Although on Mr. Rogers’ own admission there was knowledge of the brew, there was no consent or control. The only way in which consent or control could be found would be to impose a duty on a prisoner who had not been involved in the preparation or the consumption of a brew, but knew of its existence, to dispose of it or to inform the authorities of its presence. To impose such a requirement would be contrary to one of the central principles of the ‘con code’ -- to do your own time -- and would expose a prisoner to a real risk of retaliation by his cell mate and of being labelled a rat, thereby exposing him to physical reprisal and ostracism by other prisoners.

During the lunch break Mr. Fox, in reflecting on this decision, wondered whether it would be the subject of negative comment by the staff because they always seemed to be upset when he dismissed a charge of contraband in a double bunk situation, regardless of the merits. Clearly his contemplation of this possibility, based upon his previous experience, did not deflect him from making the right decision as a matter of law.

Given the facts of this case, particularly Mr. Rogers’ absence from the institution for eight days during which period the brew was prepared, and Mr. Polak’s assumption of full responsibility, an assumption that in the circumstances was credible, why was he charged with the offence? The only explanation seemed to be the policy of charging both prisoners in a double bunk situation, regardless of the circumstances, and regardless of the fact that one of the prisoners was likely to be acquitted when it was dealt with at court.

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