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OPSEU member successful in criminal case

OPSEU is pleased to report on the successful outcome of a criminal case involving two OPSEU members.   In early 2014, police charged two Correctional Officers and one manager with “failure to provide the necessaries of life” contrary to section 215 of the Criminal Code.  Earlier this week, after nearly six years and a long legal battle, the Crown announced that it will abandon prosecution of the case.   

The details of the case are familiar to many members.  In October 2013, an inmate at Elgin Middlesex Detention Centre was killed by his cellmate, who subsequently pleaded guilty to second-degree murder.  Police took the unprecedented step to also criminally charge two Correctional Officers in connection with the death, despite the fact that the Officers had followed long-standing practices at EMDC both before and after the assault.  One of the Officers charged was not even on shift at the time of the assault.  

This case is the first time that a charge under s 215 has been brought against Correctional Officers in Canada.  In criminal law, “necessaries of life” under s 215 are essentials like food, water, and shelter, but also protection from harm.  The Crown pursued this case aggressively and by indictment through a preliminary hearing, two Charter motions, an appeal, and two long jury trials.  The maximum sentence on conviction would have been five years imprisonment.

Two jury trials were held because the first trial ended in January 2019 with a “hung jury,” meaning that the jury could not agree to either acquit or convict.  In such cases, a mistrial is declared and the Crown has the discretion to proceed with a fresh trial.  The Crown did proceed again, and second jury trial was held in September 2019.

On September 25, 2019, the second jury trial concluded with a hung jury and a mistrial was declared.  On October 2, 2019, the Crown confirmed that it will discontinue the prosecution.  The Crown Attorney advised the judge that “the Crown owes a duty of fairness to everyone. . . . The conclusion is, this case must end.”

This case was an extraordinary attempt by the Crown to hold Correctional Officers criminally responsible for a death in custody.  A conviction in this case would have been a disturbing precedent for Correctional Officers working in a system that is growing more violent and unpredictable each year.  Justice was served when the murderer was convicted and sentenced.  OPSEU has empathy for the inmate’s family and the public’s demand for answers.  As OPSEU members, we are also relieved that two juries did not find a basis to convict in this case, and that the Crown finally halted the prosecution.