Clark v. Matsqui Institution

(1988), 21 F.T.R. 158, [1988] F.C.J. No.650 (F.C.T.D.)

    C was found guilty of the charge of "assault" by a disciplinary court, pursuant to section 39(b) of the Penitentiary Service Regulations. The evidence before the disciplinary court was to the effect that: no institutional officer actually witnessed the altercation between C and the other inmate, T; T was treated at the institution hospital for some injuries; C was interviewed after the alleged altercation where he asserted to an officer that a "scuffle" had occurred and that C's participation in the "scuffle" was for the purpose of "protecting himself." In the end, both C and T denied being in a "fight" and no institutional officer could testify that they were witness to the alleged altercation. As the term "assault" was not defined in the Penitentiary Service Regulations, the issue before the Court was whether the evidence adduced before the disciplinary court could have led to a finding of guilt on the disciplinary offence charge of "assault"?
    Collier J. allowed the application and quashed the conviction. Collier J. did not find it necessary to decide whether or not the Criminal Code provisions relating to "assault" should be imported into paragraph 39(b). In the Court's mind, the ordinary lay meaning of assault is an attack of some kind, intentionally, by one person on another. Merely protecting oneself or defending oneself by retaliatory measures does not amount to assault by one inmate on another person. It may be, although it was not necessary to decide in this case, that unreasonable force in protecting or defending oneself might turn into assault. However, if being in a fight and merely protecting or defending oneself amounts to an assault, then an impractical conclusion follows. The person attacked, to be not guilty, must offer no resistance or rebuttal; he must absorb the physical abuse, or try to escape. That is in accordance neither with human nature nor common sense. The chairperson in this case equated participation in a fight as the committing of assault. On the evidence, the participation by the inmate applicant was to protect him-self. Accordingly, there was an error in law in the decision reached. The mere fact that the inmate applicant was in a fight did not mean he was guilty of assault as stated by the chairperson. To put it another way, the evidence before the disciplinary court could not support the conviction for a disciplinary offence based on paragraph 39(b).
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