New Brunswick

2 prison guards charged in Matthew Hines's death will not stand trial, judge rules

The two correctional officers charged after the death of Matthew Hines while he was a prisoner at Dorchester Penitentiary will not stand trial, a judge ruled Friday.

Alvida Ross and Mathieu Bourgoin had been charged with manslaughter and criminal negligence causing death

Matthew Hines died while in custody at Dorchester Penitentiary on May 27, 2015. (CBC)

Matthew Hines died after he was pepper sprayed at least four times inside Dorchester Penitentiary, but the correctional officers who sprayed him will not go to trial on charges related to his death, a judge ruled Friday.

The two men — Alvida Ross, 49, and Mathieu Bourgoin, 33 — were both charged with manslaughter and criminal negligence causing the 2015 death of Hines.

At the time of his death, the 33-year-old Hines was serving a prison sentence for bank robbery.

After hearing four days of evidence in the fall, Judge Ronald LeBlanc discharged Ross and Bourgoin on Friday, concluding the force they used was reasonable and necessary and did not rise to the level of a crime.

"In this case, I have received no evidence that the use of the pepper spray was objectively dangerous in nature or that its use ran an obvious and serious risk to Matthew Hines' life," the judge wrote in his decision, which he read aloud to the Moncton courtroom.

He determined there was no evidence upon which a reasonable and properly instructed jury could return a verdict of guilty for either officer.

"The consequences were indeed tragic but totally unanticipated," the judge wrote.

Alvida Ross, left, and Mathieu Bourgoin both pleaded not guilty in April to charges of manslaughter and criminal negligence causing death. (Pierre Fournier/CBC)

Ross and Bourgoin celebrated with a large group of supporters outside courtroom six after the decision was read. They did not comment to reporters outside the courthouse.

All the evidence presented at the preliminary inquiry had been under a publication ban. LeBlanc lifted the ban after discharging Ross and Bourgoin.

It is not yet clear whether the Crown will appeal LeBlanc's decision. The Crown will study the decision and "determine what, if any, further steps will be taken by Public Prosecution Services in this matter," Crown prosecutor Kathryn Gregory wrote in an email.

A judge has ruled the correctional officers charged in the death of Matthew Hines will not go to trial. Warning: This video contains graphic content. 2:10

Important 'that justice be done,' family says

Jason Godin, national president of the Union of Canadian Correctional Officers, said Ross and Bourgoin were "relieved" by the judge's decision, saying the officers had been "completely exonerated."

"We believed that from the get-go and we've been standing behind them ever since the very start," Godin said.

For the Hines family, who had travelled from Cape Breton for every court appearance, the result was disappointing and surprising.

Julie Kirkpatrick, a lawyer for the Hines family, is pictured with Hines's sisters, Helen MacLeod and Wendy Gillis. They were surprised and disappointed by the decision not to send two correctional officers to trial on charges of manslaughter and criminal negligence causing death. (CBC)

"It remains of the utmost importance to us that justice be done, and that Canadians hear and understand Matthew's story, know the truth of what happened to him, and see how he came to his death while an inmate in a Canadian federal penitentiary," the family said in a written statement.

"We also continue to trust that all of the correctional officers who saw Matthew before and during his death look in the mirror every day with the personal knowledge of what they did and did not do on May 26th."

'Please, I'm begging you'

Hines came to correctional officers' attention on the night of May 26, 2015, when he refused to return to his cell at Dorchester Penitentiary. Officers found him in a neighbouring cell, where he was hugging his cousin.

Hines was acting strange, and in their observation statements, many officers said they believed he was under the influence of drugs.

"Don't let them end my life!" officers heard Hines yell in his cousin's cell.

Later, Hines was pepper sprayed at least four times by Ross and Bourgoin at close range, while he was handcuffed and restrained by several correctional officers.

After he was pepper sprayed, officers escorted Hines to a decontamination shower cell. Handcuffed behind his back and with his shirt pulled over his head, Hines was sent into the shower to wash off. 

Correctional officers Mathieu Burgoin and Alvida Ross won't go to trial on charges of manslaughter and criminal negligence causing the death of Matthew Hines. The officers are highlighted at the 05:10 mark in this video. 50:11

"Please, I'm begging you!" Hines yelled over and over again.

Lying on that shower floor would have felt like the torture technique waterboarding, according to a 2017 report by the federal correctional investigator.

Soon after, Hines went into medical distress and had difficulty breathing. He was taken to a health-care wing but did not receive any medical treatment from a nurse on duty, according to an investigation by Correctional Service Canada.

Hines was taken to hospital in an ambulance. That's where he was pronounced dead at 12:04 a.m. on May 27, 2015, less than two hours after he refused to go to his cell.

Actions weren't unlawful, judge found

The force used by Ross and Bourgoin was deemed excessive by two investigations conducted by Correctional Service Canada, including a disciplinary investigation.

A use of force expert hired by Nova Scotia RCMP, which took over the criminal investigation in 2016, also found the use of pepper spray was unnecessary and did not comply with policy or training.

But the state has a much higher burden when somebody is accused of criminal behaviour, even at the preliminary inquiry level, LeBlanc wrote.

In his analysis, LeBlanc concluded the actions of Ross and Bourgoin were not unlawful and did not rise to the level of a crime.

"It is not the result of an act that makes it unlawful or negligent, it is the conduct leading to that result," the judge wrote.

The judge cited statements from several officers who were there that night, all who said Hines was resisting and being combative throughout his encounter with guards. 

No one who was there seemed to think using the spray would be dangerous or "anticipated it would have such a devastating impact on this individual," the judge wrote, nor did anyone object to the use of pepper spray.

In fact, Correctional Service Canada's own training materials placed pepper spray above physical handling as a force option.

Jason Godin, national president of the Union of Canadian Correctional Officers, said Ross and Bourgoin are relieved to be discharged by the court. (CBC)

When asked whether the Hines case has changed the way correctional officers do their jobs, Godin said guards "can't be hesitant to do our job" and described pepper spray as a "tool of the trade."

"This is part of what we have to do to try to avoid further injury to people inside when we're managing offenders," Godin said.

Both Ross and Bourgoin are still employed by Correctional Service Canada, but have been assigned administrative duties that do not involve the care or custody of offenders.