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November 20, 2017

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BY SHANNON KARI For Law Times C orrectional Service Can- ada has been found to be negligent in the severe beating of an inmate be- cause he was placed in a unit with serious offenders and also as a re- sult of staff failing to follow estab- lished security protocols. Ontario Superior Court Jus- tice David Price made the find- ing after CSC brought a sum- mary judgment motion seeking to dismiss the action filed by James Fontenelle. Instead of dismissing the action, Price ruled in favour of Fontenelle and bifurcated the proceeding to hold a trial at a later date on damages. "I find that there is no genuine issue as to liability, not because the evidence does not support a finding of liability, but because the evidence leads to the ines- capable conclusion that the CSC was negligent, and that, but for its negligence, the injuries to Mr. Fontenelle would not have oc- curred. There is no necessity for a trial as the CSC's own records es- tablish its liability," wrote Price in the ruling issued Nov. 2. James Sayce, a Toronto-based litigation lawyer, says the ruling is another example of courts requir- ing correctional institutions to try to ensure the safety of inmates. "It ref lects a growing consensus by judges that prisoners do have rights and they are owed a duty of care. This is not something that should be made unavailable," says Sayce, an associate at Koskie Min- sky LLP, who is also involved in class actions related to the overuse of solitary confinement in correc- tional facilities. The attempt by the correctional service to have the Fontenelle ac- tion dismissed on summary judg- ment appears to be a "curious liti- gation strategy," Sayce observes. "The facts here are egregious and they come from the CSC's own records," he adds. Fontenelle was 34 years old and was serving a three-year prison sentence at Millhaven Institution near Kingston, Ont. when he was attacked by three other inmates. Fontenelle was classified as me- dium risk and his criminal record was "overwhelmingly" for non- violent offences, the judge noted. The other three inmates were serving lengthy sentences for vio- Lawyers criticize proposed THC regulation BY ALEX ROBINSON Law Times L awyers say a government proposal to criminalize having a certain amount of THC in your blood two hours after driving will likely face a Charter challenge if implemented. A group of prominent crimin- al defence lawyers recently signed a letter calling on the government to abandon part of the proposed regulations in bill C-46 that would establish a summary offence for people found to have more than two nanograms of THC in a milli- litre of their blood within two hours of driving a car. Lawyers say the proposal would disproportionately affect people who consume the drug for medical purposes and is contrary to s. 7 of the Charter. "There are a lot of f laws in the legislation," says Caryma Sa'd, a criminal defence lawyer and one of the letter's signatories. "I wouldn't be surprised to see a constitutional challenge." The letter points to two studies from 2009 that found a large num- ber of regular cannabis users still have two ng of THC in their blood after abstaining from the drug for a week. Sa'd says that while it is import- ant to keep roads safe, the court system should not be clogged up with people facing charges who are not driving in a dangerous way but simply have THC in their blood- stream. "THC doesn't necessarily im- pair someone's ability [to drive] and depending on how an indi- vidual chooses to use [and] how often they consume, they may not actually be impaired," Sa'd says. "A more individual case by case is a more appropriate solution than sort of an arbitrary number that doesn't necessarily ref lect what the reality is." She adds that such testing cannot be relied on yet as the sci- ence around it has not advanced enough. There is no telling how long it would take for the readings STATEMENT DEBATE Lawyers cannot be silent on diversity P7 FOCUS ON Environmental Law P9 PM #40762529 $5.00 • Vol. 28, No. 37 November 20, 2017 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M CONTINGENCY FEES Cap is currently off the table for LSUC P5 See Summary, page 2 Corrections found negligent for beating Caryma Sa'd says she would not be surprised to see a proposed federal regulation limiting THC levels in the blood of drivers challenged in court. See Regulation, page 2 James Sayce says a move by Correctional Service Canada to have an action dismissed by a summary judgment motion appears to be a 'curious litigation strategy.' Photo: Robin Kuniski Contact Nicole Breakey 1-888-781-9083 ext. 117 E-mail: SCAN | CODE | LOAD ocudavit-EARLUG_LT_Apr24_17.indd 1 2017-04-20 7:54 AM TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM 9th Annual Information Privacy and Data Protection JOIN OUR FULLY ACCREDITED PROGRAM | EXPAND YOUR NETWORK AND OBTAIN CPD HOURS Register online: • 416-609-5868 | 1-877-298-5868 *Discount applies to in-class only REGISTER NOW > Untitled-2 1 2017-11-16 1:55 PM

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