November 1994: The L’Hirondelle Case -- Attempted Assault: A Misleading Offence Report

Mr. Binford’s acquittal represented a hollow victory for him, having already suffered the prejudice of a transfer to Kent and four weeks in segregation. Nor was he the only prisoner found not guilty, whose de facto punishment through administrative segregation had already exceeded the de jure punishment to which they could be sentenced, had they been found guilty. Mr. L’Hirondelle suffered the same fate as Mr. Binford and his case also illustrated a further serious flaw in the disciplinary process. Under the existing procedures the written disciplinary record does not provide sufficient indication of the reasons for the verdict of the Independent Chairperson. Verdicts of guilty or not guilty are indicated by no more than a check mark against a box. Where a prisoner is found not guilty, what will remain on his disciplinary file is the offence report and any incident reports prepared in relation to it, which are available to anyone reviewing the file. Even though the verdict is one of not guilty, in the absence of a record of the reasons for the verdict, the acquittal remains open for re-interpretation by subsequent correctional staff in their preparation of reports on the prisoner. This can be especially prejudicial where the offence report contained a set of facts portraying the prisoner as dangerous, where the actual evidence at the hearing and the Chairperson’s findings paints a very different picture. Mr. Wagner’s case, described in the last chapter, demonstrated this problem at Matsqui; Mr. L’Hirondelle’s case illustrated the same phenomenon at Kent.

Mr. L’Hirondelle was charged with fighting, assaulting or threatens to assault another person. The offence report alleged that "at approximately 0950 hours L’Hirondelle attempted to strike me with a piece of wood approximately 11-3/4" length with a screw in one end." An observation report completed by Officer Laughlin established:

L’Hirondelle became upset that his overhead light had been turned on. This was done so that the staff could skin frisk the inmates prior to a unit search. He had a piece of wood dowel approximately 10" in length. He stood on his toilet seat and attempted to smash the overhead light. When his door was opened he was ordered out of the cell to submit to a skin frisk. He disobeyed this order and continued to be loud and verbally abusive towards the staff. He was again ordered out of the cell. He approached the door and attempted to assault CO-II Milan by throwing the piece of wood dowel at him. He was handcuffed and escorted to J unit segregation.

As written up in the offence and observation reports, this appeared to be a serious case of attempted assault on a staff member with a weapon. Evidence at the disciplinary hearing was given by Officer Milan who, according to Officer Logan, was the subject of the attempted assault. Office Milan stated that he and other officers were involved in clearing inmates out of their cells for a unit search. Mr. L’Hirondelle was banging a stick in his cell and after the cell door was opened he threw the stick in his direction down the hall. Mr. Fox asked him to indicate exactly where he was standing in relation to the door. Officer Milan said that he was standing about a foot away from the cell door and off to one side. Officer Logan was on the other side of the cell door and there were several other officers to the right of him. He was asked whether he observed Mr. L’Hirondelle throw the stick. He said he did and it went past his head in front of his face. Mr. Fox asked him whether he had to do anything to get out of the way of the stick. Officer Milan said he did not -- the stick was just thrown in his direction. Mr. Fox asked a series of further questions:

Q Did you feel that the stick was thrown at you?

A: It’s hard for me to say, I don’t know what his intentions were. It was thrown in a fit of rage.

Q: Was he trying to hurt you or the other officers while demonstrating his anger?

A: I don’t know what his intentions were. It could have been an act of rage.

Q: That is what I have to determine. If it was thrown at the staff with the intention of hitting an officer then that’s a very serious thing. If it was thrown in a fit of anger that’s something else. Did he throw it from inside of his cell or did he come out?

A: He was partly out of the cell and he threw it in my direction away from the other officers.

Q: Is there any reason why he would be particularly mad with you?

A: Not that I know.

Mr. L’Hirondelle then gave his evidence. He said he was upset that he had been woken up by having his light turned on because he had been up late the night before. He grabbed the stick which was holding up his curtain. When he was asked to come out of his cell he was still holding the stick. There were four officers standing in front of the cell and he threw the stick down the corridor just to get rid of it. If he had intended to assault an officer he would have thrown it right at them and not down the range. Mr. Fox found Mr. L’Hirondelle not guilty on the grounds that he was not satisfied beyond a reasonable doubt that Mr. L’Hirondelle intended to assault Officer Milan.

This case illustrates how a prisoner’s profile, if constructed from offence reports, can give a very misleading picture. On the face of these offence reports, Mr. L’Hirondelle was involved in a very serious attempted assault on an officer with a weapon. Yet the same officer who allegedly was the subject of the attempted assault, when he gave evidence at the disciplinary hearing, admitted that he did not know whether Mr. L’Hirondelle was trying to hit him. Although Mr. L’Hirondelle’s disciplinary file will reflect the fact that he was found not guilty, neither it, nor any other record will provide a summary of the facts as found by the Independent Chairperson. Any staff member writing a progress summary in the future will have only the offence reports to go on, and might well conclude that the acquittal was on the basis of a technicality, and that the facts as set out in the offence report are a true reflection of Mr. L’Hirondelle’s dangerousness.

The misinterpretation of his acquittal was not all that Mr. L’Hirondelle faced. He experienced a much more real and immediate prejudice. Mr. L’Hirondelle’s charge arose on October 19, 1994. By the time of his acquittal on November 15, he had already served almost four weeks in segregation. After his acquittal he was seen by the Segregation Review Board and was authorized for release to the population, subject to the availability of bed space. He was given the priority number nine and told that it could be up to a month before his release from segregation was effected. Mr. L’Hirondelle’s statutory release date was set for the middle of December; this day arrived prior to his release from segregation. In the event, Mr. L’Hirondelle went straight from segregation to the street, having served the last two months of his sentence in segregation, arising from a charge of which he was acquitted.

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