PENITENTIARIES
Action for damages suffered resulting from certain actions or omissions of Correctional Service of Canada (CSC) while plaintiff in CSC custody at Fenbrook Correctional Institution in Gravenhurst, Ontario—Plaintiff alleged having allergy to tobacco smoke such that exposure thereto causing significant, immediate discomfort, including headache, nausea, irritation of throat—Whether CSC breached any duty to plaintiff regarding exposure to second‑hand tobacco smoke at Fenbrook; whether damages might reasonably be claimed— Also, whether CSC violated plaintiff’s right under Canadian Charter of Rights and Freedoms, s. 12—Plaintiff currently serving life sentence after conviction of second degree murder —Action confined to periods of incarceration at Fenbrook, medium‑security facility, consisting of four separate buildings, each having number of separate living quarters referred to as “ranges”—No non‑smoking buildings but each building having designated non‑smoking ranges—Each building having ventilation, air return systems to circulate, replace inside air with outside air but systems not always eliminating presence of some second‑hand smoke—At all relevant times, Fenbrook’s smoking policy permitting smoking in individual rooms on designated smoking ranges or outside building— Various places in building where non‑smokers would be exposed to second‑hand tobacco smoke—Although appro-priate disciplinary measures taken against inmates found smoking in violation of policy, violations thereof needed to be observed by guards, or brought to their attention to enforce policy—Plaintiff having to constantly complain about exposure to second‑hand smoke, bring individual offenders to attention of authorities—Resulting in animosity towards plaintiff—No other evidence adduced regarding how CSC enforced smoking policy at Fenbrook—Problem with second‑hand smoke also brought to CSC’s attention by plaintiff’s counsel who wrote to Fenbrook’s warden on behalf of plaintiff—Unit Manager of Fenbrook Falcon Unit responded stating range in which plaintiff living would be converted into non‑smoking range including adjacent range to resolve any cross‑ventilation problems—Steps outlined in memorandum never implemented—Three days after plaintiff received memorandum, was moved to different building at night for personal safety reasons—Transfer not resolving problem of exposure to second‑hand smoke—Sufficient evidence (ex. affidavits by plaintiff’s physicians) to establish plaintiff having significant physical reaction when exposed to second‑hand smoke—Memorandum also expressly acknow-ledged plaintiff’s medical needs, concerns relating to tobacco smoke—Even without allergy to tobacco smoke, plaintiff entitled to live without exposure to second‑hand smoke at least in non‑smoking areas of prison without onus of having to complain about fellow inmates—Fenbrook owed plaintiff duty of care under relevant legislation, common law to incarcerate plaintiff in healthful conditions not causing physical discomfort, upset—CSC failed in duty to extent did not take reasonable steps to ensure smoking policy enforced; ensure plaintiff not exposed to second‑hand smoke— Unreasonable to expect individual inmates to report on other inmates; to have constantly moved plaintiff from one unit, range to another—Also unfortunate air circulation systems moving smoke into non‑smoking areas—CSC could have taken inexpensive, reasonable steps, to enforce policy, including better monitoring of non‑designated areas or possible installation of smoke detectors—No evidence such options explored—However, CSC announced smoking inside all federal institutions, correctional centres prohibited effective January 31, 2006—Smoking only permitted in designated outdoor areas—Goal of new policy to eliminate exposure to second‑hand smoke in all federal penitentiaries—Plaintiff’s exposure to second‑hand smoke not constituting cruel, unusual treatment or punishment to degree outraging standards of decency, violating Charter, s. 12 rights— Correctional facilities have, continue to grapple with issue of smoking, placing increasing restrictions, limits on smoking— CSC recognized problem, had smoking policy but policy inadequate to promote healthful environment—Although policy enforced at least in part by requiring inmates to report on one another, situation not amounting to deliberate or malicious imposition of cruel, unusual treatment—CSC’s shortcomings in formulating, enforcing policy consistent with obligations under legislation not amounting to cruel, unusual punishment or treatment in violation of Charter, s. 12 rights —Regarding damages, no evidence plaintiff has, suffering from any life‑threatening or chronic medical condition as consequence of exposure to tobacco smoke—Plaintiff having number of pre‑existing respiratory or pulmonary risk factors or conditions—Losses, damages speculative, forming no basis for award—Damages only for immediate physical reaction, discomfort plaintiff experienced from being exposed to second‑hand tobacco smoke—Court cannot speculate or assess amount of damages for possible pecuniary losses— General damages for stress, discomfort assessed at $5000— Action allowed—Correctional and Conditional Release Act, S.C. 1992, c. 20—Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 12.
Maljkovich v. Canada (T‑954‑02, 2005 FC 1398, Milczynski P., judgment dated 13/10/05, 10 pp.)