'Prison code' can form part of an inmate's defence: Federal Court
Andrew DuffyANDREW DUFFY
Published on: November 17, 2017; Updated: November 17, 2017 6:08 PM EST
A Kingston inmate who says he joined a penitentiary revolt only because he feared violating the “prison code” has won the right to use those unwritten rules in his defence.
Mohamed Akhlaghi, 40, told a discipline hearing at Collins Bay Institution that he would have been stabbed if he didn’t abide by the code and follow other inmates on J Range, a maximum-security unit, as they staged a protest on the evening of Sept. 2, 2016.
That argument was rejected by the prison’s disciplinary court chairman, who said that recognizing duress as a defence would lead to “anarchy” inside Canada’s correctional system.
Akhlaghi appealed, and in a recent ruling, Federal Court Justice Henry Brown upheld the inmate’s right to draw upon the prison code in answering discipline charges.
The discipline court was wrong, Brown said, to ignore Akhlaghi’s contention that he would be punished under the harsh tenets of the “prison code” if he didn’t join the protest. The code refers to the rough and informal set of rules that governs inmates’ daily lives.
“I have come to the conclusion that the independent chairperson acted unreasonably when he held that duress was not a defence in law,” Brown said in his judgment.
He ordered the case back to the prison discipline court for a new hearing.
Akhlaghi was among the inmates who refused a general order to return to their cells and “lock up” for a head count at 10:30 p.m. on Sept. 2.
Normally, inmates retreat inside their cells when the announcement is made over the public address system. Air locks on their doors are then closed for the night.
On the evening of Sept. 2, however, the four guards preparing for lock up found all the inmates on J Range out of their cells. Doors were blocked open with shoes and footlockers.
Despite repeated orders to lock up, the inmates didn’t budge. The guards refused to enter the range because similar episodes in the past had proved to be a trap.
The standoff — it flowed from an inmate stabbing earlier in the day — lasted two hours before the inmates agreed to return to their cells. All of the participants were charged with disobeying a justifiable order.
In testimony at his disciplinary court hearing, Akhlaghi admitted that he failed to follow the order, but said “there would have been problems” had he been the only one to go into his cell.
“I couldn’t stay on that range,” he testified. “I couldn’t stay in Collins Bay maximum security. I would have been stabbed just like the other person.”
Akhlaghi, serving time for drug possession and other offences, had been transferred from medium to maximum security because of an earlier problem with other inmates. His sentence began in 2007. “I was already on, you know, sticky grounds to begin with,” he explained, “so I wasn’t going to be the only one to lock up to have more problems.”
His defence lawyer argued that Akhlaghi acted under duress since he faced the “implicit threat” of bodily harm or death under the prison code, which dictated that inmates stick together in a standoff with prison guards.
The chairperson said accepting such an argument at a disciplinary hearing would create “chaos” in the prison system.
Brown, however, said that duress is a complete defence in law — one recognized by both the Criminal Code and the Supreme Court of Canada.
To prove duress, a defendant must demonstrate a number of elements, including an explicit or implied threat of bodily harm, a reasonable belief the threat would be carried out, and an inability to escape the situation.
Lisa Kerr, assistant professor of law at Queen’s University, said the case sends a clear message to prison officials that they must apply the law rather than their own ideas.
“In our legal system, there’s a fundamental principle that you cannot hold someone responsible for actions that were not morally voluntary: We only hold people responsible if they did something when they could have reasonably chosen otherwise,” Kerr said.
“Inmates are entitled to make that kind of argument too. In fact, the defence of duress is likely more important in the prison context given the pressures that inmates often face.”
She did not believe the decision would lead to chaos inside the correctional system.
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