A prison inmate (“Farrows-Shelley”), sued Correctional Services Canada (“CSC”) in negligence for allegedly allowing him to be double bunked with an individual who, Farrows-Shelley suspected, was known to have proclivities to violence and to be infected with hepatitis C and HIV. The Federal Court of Canada dismissed the action, holding that there was no evidence to establish a violent tendency on the part of Leonard Welch, and that there was no evidence that he was indeed infected with hepatitis C and HIV. The court refused to accept the argument of the Plaintiff that this should be a test case to expand the law, in recognising a duty to warn as distinct from a duty to protect.

Administrative law – Prisons – Dangerous prisoners – Duty to protect – Duty to warn

Farrows-Shelley v. Canada, [2003] F.C.J. No. 574, Federal Court of Canada – Trial Division, April 8, 2003, Aronovitch, Prothonotary

The court quoted the decision of Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, [1998] O.J. No. 2681, wherein the court stated:

In my view, the police failed utterly in their duty to protect these women and the plaintiff in particular from the serial rapist the police knew to be in their midst by failing to warn so that they may have had the opportunity to take steps to protect themselves.

The court held that such a duty to warn was merely one element of the duty to protect, and that no warning was warranted in the circumstances.

CSC’s policy that an inmate’s medical information should be treated as private personal information, and that the right to privacy be balanced with the protection of the prison population, was considered by the court.

The action was dismissed, with the court finding the CSC did not have a duty to warn Farrows-Shelley, as he had not discharged the onus of proving the fundamental elements required to found a duty to warn, namely a clear and foreseeable danger to him in sharing a cell with Welch, that would have been known to CSC.

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