In the recent decision in R. v. Short, Justice E.M. Morgan had to determine if a prisoner’s use of a shiv was an act of self-defence. He began his ruling asking “what happens when a maximum security facility produces maximum insecurity?”
According to the decision, while serving time in the Toronto East Detention Centre, Mr. Short was attacked by members of a rival gang. One of them was armed with a knife. Mr. Short was taken by surprise; however, he was able to fight back. When other inmates had joined in the fight, Mr. Short removed his own weapon, which he then used in the fight.
Mr. Short was charged with assault and assault with a weapon. He claimed he was acting in self-defence.
In order to succeed in his claim of self-defence, he had to show that he believed that force would be used against him, that his actions were for the purpose of protecting himself, and that his actions were reasonable in the circumstances.
The Criminal Code has specific factors to consider when determining if the action was reasonable. These include: the nature of the force or threat; the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; the person’s role in the incident; whether any party to the incident used or threatened to use a weapon; the size, age, gender and physical capabilities of the parties to the incident; the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; any history of interaction or communication between the parties to the incident; the nature and proportionality of the person’s response to the use of threat of force; and whether the act committed was in response to use or threat of force that the person knew was lawful.
The judge focused on the nature and proportionality of the person’s response to the use of threat of force.
Justice Morgan raised some concerns about how long the fight lasted before the corrections officers could intervene and how the corrections officers were unable to locate any weapons in a search in spite of testimony that most inmates are armed.
Justice Morgan found that “there is nothing unreasonable about Mr. Short using a weapon of his own to defend himself” and determined that Mr. Short had acted in self-defence. “The system put him in this situation, and the system cannot blame him for resorting to his own means of defense”.
The decision paints a frightening picture of the dangers that exist in a maximum security prison.
Scott Buchanan is an associate at the law firm of Cobb & Jones LLP. For more articles, visit the Library Page at www.cobbjones.ca.