In his response to the institution’s recommendation that he be transferred to the Special Handling Unit, supplemented by a further submission from Prisoners’ Legal Services, Mr. Tyson challenged both the description and the characterization of what took place on August 16. He pointed out that this was one of the rare times he had consumed alcohol in prison in recent years, and on the night in question he had become extremely intoxicated. He remembered that when Officers Cole and Durand ordered the prisoners to get rid of their brew and lock up, he proceeded to "chug-a-lug" the brew in his cup. By the time he reached his cell, the alcohol had "hit him like a ton of bricks," and thereafter he remembered very little of what took place. He denied any previous plan to attack the officers, saying he had a good prior relationship with them and could offer no rational explanation for his actions beyond the fact of his extreme intoxication. (The irrationality of what he had done was substantiated when one considered that Officer Cole was six inches taller and a hundred pounds heavier than Mr. Tyson.) While he acknowledged that he had removed his glasses and teeth, he stated that in any potentially aggressive situation this was almost a reflex action, learned from the years he had spent in maximum security, and it did not reflect a planned attack on the officers.

The submission from Prisoners’ Legal Services noted that the progress summary did not refer to Officer Dain’s statement that Mr. Tyson tried to prevent Mr. DaSilva from attacking Officer Cole up until the time both prisoners were gassed. These actions supported the contention that Mr. Tyson’s assault on Officer Cole was caused by a momentary bout of irrationality due to his intoxication, which he then endeavoured to rectify. Ultimately, Mr. Tyson argued that the attack on Officer Cole was unplanned and out of character; it was the result of his intoxication, and as such he did not represent a continuing and serious risk to staff. Mr. Tyson’s rebuttal notwithstanding, the warden of Kent upheld the recommendation for his transfer to the Special Handling Unit, and that recommendation was affirmed by the deputy commissioner. After spending more than three months in segregation, Mr. Tyson was transferred to the Special Handling Unit in Prince Albert, Saskatchewan, where he would spend the next two years.

The only charge Shawn Preddy faced, following the August 16 brew party was that of taking an intoxicant. However, Mr. Preddy too experienced very severe consequences for his involvement. At the hearing on September 27, Officer Cole testified that Mr. Preddy had appeared at a minor court hearing on August 16 and seemed to be in a condition other than normal. Mr. Preddy’s speech was slurred, and he had a "real problem with his vocabulary." Mr. Fox asked whether the officer had detected any odour of alcohol and Officer Cole said he had not. He said Mr. Preddy had been in his presence for three or four minutes, and the hearing had been taped. He also said that the conversation during the hearing was split about 60/40 between Mr. Preddy and the correctional supervisor, Matt Brown. When asked whether Mr. Preddy’s slurring was pronounced or mild, he responded, "Mild." Officer Cole testified that his partner also felt that Mr. Preddy was under the influence. Mr. Fox asked Officer Cole whether Mr. Preddy’s speech might be slurred for other reasons; for example, had he just woken up or was he on any medication? Officer Cole said he was not aware of any such circumstances. After Mr. Preddy’s appearance in minor court, Officer Cole had gone down the range to check out what was happening, because he suspected there was a brew party going on. Mr. Preddy was in a cell with three other prisoners; all had cups in their hands. Officer Cole told the men that if they dumped their brew he would not write up any paperwork on them. Mr. Preddy said that was a good idea and complied by emptying his cup down the toilet.

Mr. Fox asked Officer Cole to expand on the problems Mr. Preddy had had with his vocabulary. Officer Cole said that his speech was slow and he had a problem pronouncing words. Mr. Fox asked whether he had used any inappropriate words. Officer Cole responded that Mr. Preddy was usually very well spoken, but this time he was "just off." Mr. Fox also asked whether any of the four prisoners acknowledged that they were consuming brew. Officer Cole said the only acknowledgement was Mr. Preddy’s pouring his cup into the toilet.

Mr. Preddy then questioned Officer Cole and had him confirm he did not know whether Mr. Preddy might have been woken up prior to his court appearance, which could explain his slurred speech. Officer Cole also confirmed that at no time in the past year had he observed Mr. Preddy drinking, nor had he heard of Mr. Preddy being involved in any brew party. Mr. Preddy asked, "When you ordered the prisoners to dump the brew and I said that it was a good idea, was my speech slurred at that time?" Officer Cole said he was paying attention not to his speech but to the situation in the cell. At this point, Mr. Preddy requested that the Chairperson listen to the tape of the minor court hearing, which was the best evidence of whether there had been any sign of impairment. Officer Wallin was sent to locate it.

Officer Durand then gave his evidence, saying he had noticed a problem with Mr. Preddy’s slurred speech during the minor court hearing. When asked how long that hearing had lasted, he said between ten and fifteen minutes, which was different from Officer Cole’s estimate of three to four minutes. He stated that during the hearing Mr. Preddy did not do most of the talking but simply answered the questions put to him by Mr. Brown, which again was different from the evidence of Officer Cole. He went on to say he had noticed Mr. Preddy had a dry mouth and was not speaking in his normal manner. Officer Durand then said this might have been because Mr. Preddy was stressed out at having to appear in minor court. This too was in conflict with Officer Cole’s evidence.

Mr. Preddy’s case was adjourned to later that morning to allow Nurse Fine to give evidence. She testified she had been called to a segregation unit, J Unit, on August 16 and had found Mr. Preddy handcuffed, shackled and lying on the floor hyperventilating, in a very agitated state. She stated that there was a strong odour of brew, a comment also noted in her observation report, which was written at 12:05 a.m. When asked whether there were any other signs of impairment, she replied that she had not gone near Mr. Preddy because he was very agitated, nor did she hear him say anything.

In his cross-examination, Mr. Preddy asked Nurse Fine how close she was to him when she saw him lying on the floor. The distance established was between six and ten feet. However, she said that when he was taken off the floor and placed in his cell he passed by her at a distance of some two feet, and she smelled alcohol. Mr. Preddy asked her how she knew the smell of alcohol was from his breath rather than his clothes, and Nurse Fine replied, "It might have been from your clothes." In response to the further question, "You can’t say then that it was from my breath or not?," Nurse Fine said, "No, I can’t." She added, "You certainly acted impaired." Asked what she meant by this, she responded, "You were agitated, but you were being forcibly restrained at the time, so that could be the reason why you were so agitated." At this point in the proceedings Officer Wallin advised Mr. Fox that his efforts to locate the tape of the minor court hearing had been unsuccessful.

Mr. Preddy gave evidence that on the evening of August 16 he had been asleep in his cell, because he had just finished working a double shift in the kitchen. He was woken up by Mr. Tyson, who told him he was wanted in court. He went down to the room in which minor court was being held and noticed on his way that there were several people partying. The minor hearing did not last very long; it had to be adjourned as the charging officer was not available. On the way back, Mr. Preddy stopped at the cell in which the party was going on and stood in the doorway. Mr. Tyson staggered out and bumped into him. He caught Mr. Tyson to prevent him from falling, and some of the liquid in the cup Mr. Tyson was holding spilled on him. Mr. Preddy told the guys to keep it quiet and went back to his cell to clean himself up. He tried to go back to sleep, but there was too much noise, so he returned to the cell where the party was. It was at this point that Officer Cole came down and told everyone to dump the brew. Mr. Preddy said he told the others this was a good idea because the officer was giving them a break. Mr. Preddy then went back to his cell and locked up. A little while later he heard a lot of noise outside of his cell, looked out and saw two officers beating on Mr. Tyson and Mr. DaSilva. Both the prisoners were on the ground, and they were being kicked. Mr. Preddy said he got really angry at what he believed to be an unjustified beating and lost his cool. As a result of his actions in breaking his own possessions in his cell, he was taken to segregation.

Mr. Preddy submitted that there was no evidence of anyone observing him drinking any brew, only holding and dumping a cup. The only evidence of impairment was the officer saying he had slurred speech, but he had explained this by the fact that he had just been woken up. As to Nurse Fine’s evidence, she had admitted that the strong odour of brew could have come from his clothes. The incident took place between 8:00 and 8:30 p.m. and Nurse Fine had seen him shortly after midnight. It was highly unlikely that the odour of brew would have remained on his breath for four hours, although it was quite possible that it would remain on his clothes. There was no evidence of his staggering or of any other physical signs of impairment. Nurse Fine had admitted that his agitated behaviour in segregation could have been the result of his being shackled and made to lie on the floor.

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