Crown is found liable for over $1 Million in Damages when man is injured in Jail

Posted by Stevenson Whelton LLP
August 16, 2019

In a recent personal injury lawsuit, Henebry v. Her Majesty the Queen (2018), an Ontario Court found the defendants liable for a young man’s injuries after he was beaten up in an Ontario jail.  The Court ruled that the plaintiff’s injuries were directly caused by Mr. Heber (the man who committed the assault) and the negligence of the detention centre staff, for which the Crown was deemed to be vicariously liable.

The victim developed significant mental and psychological symptoms as a result of the trauma, including post-traumatic stress disorder (PTSD), depression and anxiety.  And, the changes in his mental health and behaviour impacted his relationships, ability to function at home and work, and his enjoyment in life.  In recognition of the significant losses caused by the assault, the Court awarded almost $1 Million in damages to the young man, as well as awards to family members under the Family Law Act.


The plaintiff, Jesse Henebry, was 19 years-old and had no prior criminal record when he was arrested by London police in connection with a theft allegedly committed by an acquaintance of the plaintiff’s.  The charges against the plaintiff were later withdrawn but before this occurred, he was refused bail, taken into custody and held at the Elgin Middlesex Detention Center (EMDC).

What happened a few months before Mr. Henebry was arrested is key in understanding why the plaintiff was assaulted in jail.   About four months before the arrest, Mr. Henebry was the victim of a home invasion committed by Mr. Heber, during which Mr. Henebry was held at gunpoint, tied up on the floor, kicked and stomped on.  The assailant also threatened Mr. Henebry with death if he called the police.  Mr. Henebry was able to identify his assailant to police and after an investigation, his assailant was charged with robbery using a firearm and held at the EMDC.

The remand warrant for Mr. Heber contained a notice stating that he was prohibited from communicating or associating in any way with Mr. Henebry.  However, the EMDC failed to enter this ‘non-communication’ notice into the Offender Tracking Information System (OTIS) when Mr. Heber was admitted, and they also failed to record this information on the assailant’s Unit Notification Card which would normally have accompanied him to his assigned Unit.  These two oversights failed to prevent the plaintiff from being placed into the same unit as Mr. Heber, which is what later occurred.

The plaintiff testified that, when he was first placed in the detention centre, he did not see Mr. Heber, but was assaulted by Mr. Heber and 3 other inmates when he went into the washroom.  Mr. Heber shoved the plaintiff into a corner, called him a ‘rat’, and then the four men punched, kicked and kneed the plaintiff.  The plaintiff called for help but no one came. And, after being beaten, he was forced to take off his clothing, shower and join the other inmates in a shared seating area.  At this point, Mr. Heber ordered the plaintiff to tell his lawyer that he was mistaken in identifying Mr. Heber as the man who robbed him. The plaintiff said that he struggled to remain consciousness during the discussion, but he faded in and out, and also felt weak and nauseous.  

As soon as he was able, the plaintiff ran to a door and banged on it to get attention from a Corrections Officer (CO), but at first no one came. One of the inmates dragged him back and began kicking him until a CO finally looked in on them. The plaintiff also stated that the two CO’s that came to speak with him joked about his appearance and what he must have done to warrant a beating, and he did not tell them about his past history with the assailant.

The guards eventually removed the plaintiff from the unit and he was later taken to the health unit, where a nurse ordered him to be taken to hospital. Several times while on route to being treated, the plaintiff alleged that he heard the guards joking that it was ‘ridiculous’ that he needed to have medical treatment for his injuries, particularly at a hospital.  And, one of the guards joked, ‘snitches get stitches’. 

At the hospital, the plaintiff received stitches for his lacerations, but was not given any direction regarding ongoing treatment or monitoring of his injuries, which was unusual since he had a serious head injury.  And, there were clear signs that his head had been injured, since his eye was swollen, and he later found out that he had sustained fractures to his cheek, jaw, nose and orbital bone.  After a few hours in hospital, he was returned to the detention center and placed in a segregation cell with a thin mattress on the floor, a toilet that didn’t flush and no running water.

The next morning, he was found unconscious in his cell and there was evidence that he had vomited.  However, he did not remember any his time in the cell - his first memory was when he woke up after being readmitted into the hospital.  He was on IV for a time in hospital and was then sent back to the retention centre and placed in a different cell. Soon after, a CO told him that they needed the cell and had to put him back in the general population. After pleading with the officer, the officer agreed to let the plaintiff stay as long as he cleaned his cell.  The plaintiff was released on bail the next day.

The Plaintiff’s Injuries

Not long after being released from jail, Mr. Henebry went to see his family doctor, with complaints of pain, insomnia and anxiety. He also reported that he was compulsively thinking about his time in jail, and constantly scared and worrying about running into his assailants in public. 

At this time, the plaintiff began to withdraw from his family and friends, found it difficult to engage in normal activities, and often felt distressed and mentally exhausted.  Close to one year after the incarceration, he was increasingly having nightmares and flashbacks of the assault, and became even more depressed and anxious.  He also acquired tinnitus.  As time went on, the plaintiff also began taking escapist drugs, including opiates. Mr. Henebry eventually became addicted to hydromorphone, and entered a methadone treatment program to deal with his addiction.

At the civil trial, family members testified that the plaintiff was very outgoing and happy before the EMDC assault, but dramatically changed afterwards and became increasingly emotionally withdrawn.  His mother stated that she saw immediate changes in his behaviour after the EMDC assault – he became constantly stressed, had frequent nightmares, exhibited dramatic mood shifts and cried often, had lost his motivation and stopped carrying about his hygiene.  She accompanied him to many of his doctor’s appointments, which he attended regularly in the years after the assault, and his mother said that the plaintiff’s mental health and behaviour did not improve until he was eventually treated by a psychologist.  However, despite improvements, the plaintiff’s mother testified that her son has not returned to the person he once was, and doesn’t have the motivation and mental health to fulfill his life goals.

Mr. Henebry’s treating psychologist testified that the plaintiff often feels overwhelmed, helpless and depressed, and also has recurring memories and scattered thinking.  He noted that the plaintiff overreacts to minor stressors and his biggest challenge going into the future involves being able to react to triggers in a healthy manner and achieving stable progress.

The psychologist pointed out that the effects of trauma can be cumulative and, in his opinion, the plaintiff suffers from severe post-traumatic stress disorder (PTSD) and depression, and his injuries are severe and permanent.   The plaintiff’s symptoms interfere with his normal activities; prevent him from leaving home and maintaining employment; and have taken away his capacity to feel safe.  And, in the psychologist’s opinion, the plaintiff needs long-term treatment for his psychological and emotional challenges, and is unlikely to be able to maintain gainful employment within the foreseeable future, and only if it involves a very structured and low stress job.

Analysis and Findings

There were, in fact, multiple breaches of standing orders made by EMDC staff.  In an assessment of ‘what should have happened’ when the plaintiff was placed in the attention centre, an EMDC security manager testified that the OTIS system of documenting a ‘non- communication’ term for persons who should be kept apart is not intended to replace the documentation that should have accompanied Mr. Heber, or any inmate, to his unit.  And, if the latter had been done properly, Mr. Heber and the plaintiff would not have been placed together.

There is also a standing order that states that offenders should be properly classified, and lower risk, first time offenders should be housed separately.  Yet, in the current case, the plaintiff who was a low risk first time offender was housed with Mr. Heber who was flagged as a violent offender requiring intensive supervision. Further, there is a standing order requiring that CO’s should patrol and visually inspect all occupied areas and cells to ensure that inmates are safe, and the log book should be updated with the results of the patrols; however, this too was not done.  And, the security manager couldn’t find a log book recording the plaintiff’s hospital visit and the names of the CO’s who accompanied him, which implied that proper procedures were again seemingly not followed. Finally, it was noted that, on his first day of incarceration, the plaintiff was not offered any meals, a shower or fresh air.

Summary of key events leading up to the Plaintiff’s Injury

  • Plaintiff is a victim of a home invasion carried out by Mr. Heber
  • Plaintiff, his brother and a friend are arrested for theft but the charges are ultimately dropped against the plaintiff
  • The Crown remanded the plaintiff to the EMDC to await a bail hearing
  • Correction officers ridicule the plaintiff during admittance
  • EMDC staff breached several standing orders
  • EMDC improperly placed plaintiff with Mr. Heber, a dangerous offender
  • Plaintiff was threatened and assaulted twice by Heber and unknown inmates
  • EMDC staff failed to notice that plaintiff was beaten during two security checks
  • Plaintiff was taken to hospital to have injuries treated, and was ridiculed by CO’s on route.
  • Despite suffering a substantial head injury, he was left alone in segregation cell and no one monitored his injuries
  • After a second hospital visit, plaintiff was forced to sweep out his cell as the price for staying in segregation, and to avoid being returned to general population

In order to prove that the defendants are liable for his injuries, the plaintiff must prove three key points:

  1. the defendant owed him a duty of care under the law;
  2. the defendant breached the owed standard of care; and
  3. the breach in care caused the plaintiff’s injuries.   

The judge found that the plaintiff met all three requirements: the defendant did owe him a duty of care; the duty of care was breached; and this breach caused his injuries.   Further, the judge rejected the Crown’s argument that some of the plaintiff’s difficulties (notably, his drug use and relationship breakdowns) are unconnected to, and not caused by the EMDC event. Rather, the Court found that all post-EMDC incidents and symptoms of trauma were related to the EMDC assault.  The judge also rejected the Crown’s assertion that the plaintiff failed to mitigate his injuries, since he promptly sought help for his physical symptoms and continued to see a doctor and later a psychologist.

The judge concluded that Heber committed the criminal offence of battery and “the Crown is vicariously liable for the negligence of its employees”.  And, the judge ordered that the defendants must pay damages on a joint and several basis, which means that the plaintiff can recover damages fully from either of the defendants regardless of their share of liability.  Typically, this results in the defendant with the deepest pockets paying all of the damages, which is, in this case, the Crown.

The Court awarded total Damages of $954,301 to Mr. Henebry, as follows. 

  • $150,000 in non-pecuniary and aggravated damages
  • $  59,138 for future care, therapy and maintenance costs
  • $ 168,000 past loss of income
  • $ 477,188 future loss of income
  • $     9,975 special damages

As well, the plaintiff’s mother, brother and maternal grandparents were awarded damages under the Family Law Act, in the amounts of $25,000,  $25,000, $7500 and $7500, respectively.

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