Sask. Ministry of Corrections fired, then rehired, jail guard whose 'negligence' was linked to inmate's death
'Essentially, that staff member is now a cautionary tale,' defence lawyer says
Saskatchewan's Ministry of Corrections and Policing fired, then rehired, a Saskatoon guard who mishandled the file of an inmate who was later fatally beaten after pages of his criminal record circulated among other prisoners.
Now, the province's information and privacy commissioner is implicating the guard's "negligence" in the inmate's death.
"Had the CO [correctional officer] not been negligent, the inmates would not have been able to view and take a portion of the file and the assault resulting in death may not have occurred," commissioner Ronald Kruzeniski wrote in a recent report to the ministry.
The inmate, Cornell Henry, was assaulted in his cell at Saskatoon Correctional Centre (SCC) in October 2017, leaving him with extensive brain injury. Henry's family took him off life-support 10 days after the assault.
Two other inmates — Raven Constant and Nathan Ermine — pleaded guilty to manslaughter in Henry's death. Some details were offered in court about what preceded the attack.
Kruzeniski's report provides the deepest and most accessible account of the incident and the alleged negligence of the CO.
It also raises questions about the ministry's continued employment of the woman at the centre of what Kruzeniski called "the worst case" result of a privacy breach.
'A very damning report'
According to Kruzeniski, the ministry initially told him the employee was on leave but by December 2019 he was told the guard was fired.
Then, earlier this year, "the ministry advised that the employee went through the grievance process and as a result has now regained employment at an alternate location in the ministry," Kruzeniski wrote.
If we hold Mr. Constant and Mr. Ermine accountable for [Henry's] death.... I do not see any good reason why the CO should not be held accountable.- Defence lawyer Michael Nolin
Michael Nolin, the lawyer who defended Nathan Ermine, said he's disappointed the guard is still employed by the government.
"Her negligence likely meets the definition of 'criminal' as per criminal negligence causing death," Nolin said via email.
"If we hold Mr. Constant and Mr. Ermine accountable for [Henry's] death.... I do not see any good reason why the CO should not be held accountable. The CO and the correctional centre have a duty to keep inmates safe while they are in custody."
Carla Dewar, the Crown prosecutor on Ermine's case, said she met with the guard a couple times.
"It was clear that what had happened had had a substantial impact on her," Dewar said, noting that "we don't have anything to suggest that it was an intentional act."
But Kruzeniski's report was "not mincing words," Dewar added.
"It is a very damning report in terms of what that negligence led to," she said.
The timeline leading to Henry's assault
Kruzeniski based his privacy breach report on the findings of the ministry's internal investigation.
"This is an extremely serious incident. Death occurred. The ministry took it very seriously," Kruzeniski said in an interview this week.
Here's a timeline of what happened on October 23, 2017, the day Henry was attacked, as laid out by Kruzeniski in his report. All times are in CST and are approximate.
The unnamed guard picked up Henry's file from the jail's administration area.
The guard went to the main kitchen to pick up a breakfast delivery cart. She placed Henry's file inside the food cart.
"[She] had concerns that the wind could have blown the file off the cart," Kruzeniski wrote about why the guard placed the file there. "The unit [where the breakfast was headed] is located on the SCC grounds and is separate from the main building where the kitchen is."
Kruzeniski added that the resulting privacy breach was, in the ministry's eyes, "unintentional."
The food cart was delivered to a secure part of the unit. A "domestic" — an inmate assigned to kitchen duty — then took the cart to the unit kitchen, where a second domestic was waiting.
"Video surveillance confirms that Domestic 2 removed the ... file from the cart and viewed its contents while in the kitchen," Kruzeniski wrote.
Domestic 1 returned Henry's file to the guard.
"When interviewed, the CO indicated they 'felt panicked' when the file was returned," Kruzeniski wrote. "However, they thought the program file was only missing for a few seconds."
The guard did not look inside the file to see if anything was missing or to confirm whose file it was, Kruzeniski added.
Only later was it discovered the first two pages of Henry's file were missing. They were never recovered.
"Once the corrections officer got the file back, I think good privacy protection would have been reviewing that file right away, finding out that some pages were missing and then obviously alerting the person," Kruzeniski said in the interview.
Kruzeniski was more blunt in his report.
"This one step alone might have prevented [Henry's] death," he wrote.
"Something in the file caused them to assault that inmate."
Pierre Hawkins, legal counsel for the John Howard Society of Saskatchewan, said information in a correctional setting can be "very sensitive."
"In terms of privacy, we're talking about basically the highest possible stakes here," Hawkins said.
7:24 a.m. to 8:18 a.m.
The domestics served breakfast, making "extended stops" at three inmates' cells.
Henry, plus his assailants Ermine and Constant, were free to roam the unit. Henry made a phone call, then returned to his cell.
Ermine and Constant beat Henry in his cell. The attack lasted no longer than 45 seconds. The autopsy ultimately cited blunt force trauma to the head as Henry's cause of death.
Jail staff found a bloodied Henry under his covers after he didn't show up for his medication. He was taken to the hospital.
The guard who misplaced Henry's file was talking to colleagues about why the assault might have happened.
"The CO indicated they forgot about the [file] until [that conversation]," Kruzeniski wrote. "At that time it was confirmed that the program file was missing the first two pages of [Henry's] criminal record."
October 30, 2017
The ministry notified Kruzeniski's office of the breach.
Kruzeniski wrote that he was "very troubled" with the guard's actions that day.
"A CO lost possession of an inmate's personal record containing extremely sensitive and personal information, was fully aware that the file was in the possession of another inmate for a period of time, and yet, did not open the file to see what was missing."
Kruzeniski noted the 90-minute gap between the time the file was returned to the time of Henry's attack. He said if the guard had checked the file and noted the missing pages, an investigation could have taken place and the unit could have been placed on lockdown. Henry could have even been removed from the unit.
"Instead, it appears the CO carried on with their work day for another seven hours until there were discussions as to what could have led to the assault," Kruzeniski wrote.
A CO lost possession of an inmate's personal record containing extremely sensitive and personal information, was fully aware that the file was in the possession of another inmate for a period of time, and yet, did not open the file to see what was missing.- Saskatchewan Information and Privacy Commissioner Ronald Kruzeniski
'That staff member is now a cautionary tale'
Both the Ministry of Corrections and Policing and the Saskatchewan Government and General Employees' Union (SGEU) — which represents provincial jail guards — declined to speak to the guards' firing or subsequent rehiring.
That included questions about whether the woman is now working at a correctional centre and whether she still deals with inmates or sensitive information.
"As per Public Service Commission policy and in the interests of ensuring staff confidentiality, the ministry does not provide specifics about individual staff or details regarding any disciplinary processes staff may have been involved in," the ministry said in an emailed statement.
The union didn't say why it declined to speak.
Crown prosecutor Carla Dewar took time in her Nathan Ermine sentencing argument last November to detail some of the missteps on the day of Henry's death.
"I can only assume and hope that all of those issues that ... kind of underlay what [the guard's] thought process was have been addressed to the satisfaction of whoever her employer is at this point in time," she said.
Lisa Watson, the co-president of the Saskatoon Criminal Defence Lawyers Association, said there could be other ministry jobs where the woman would have less contact with inmates or be in a more supervised role.
Being a criminal defence lawyer has taught Watson that people make mistakes, she added.
"It's easy to imagine a situation where a staff member could get distracted, as I suspect happened in this case," Watson said.
"Essentially, that staff member is now a cautionary tale."
No coroner's inquest planned
The Saskatchewan Coroners Service is not planning to hold an inquest into the circumstances of Henry's death, even though the province's Coroner's Act calls for mandatory inquests when inmates die in the correctional service.
It's not the first time this has happened. The coroner has the discretion to not call an inquest when someone is charged and convicted of the killing.
In Henry's case, it was decided that, "in light of the public account of the circumstances given during the criminal proceedings related to this death, it was not necessary to conduct a coroner's inquest as all the objectives of a coroner's inquest had already been fulfilled by the criminal proceedings," the ministry said.
The objective of an inquest includes preventing similar deaths.
Ministry makes changes
Watson said the ministry has done a reasonable job of addressing potential future privacy breaches. The ministry has changed its contraband search policy to also include searches of food carts, for example.
But Watson agreed with Kruzeniski's recommendation that the handling of inmates files and the handling of the food cart should not happen at the same time.
"Having the delivery of inmate files as a standalone duty ... in my view will drive home to the staff how important it is to maintain control over the file," Watson said.
As of December 2018, all correctional centre staff are required to complete online privacy training.
Kruzeniski said it's crucial for staff to be given privacy training refreshers every year.
Hawkins of the John Howard Society of Canada agreed.
"I think it's important that privacy be baked into the culture of the institution," he said.
'Hopefully they can get some closure'
The ministry said it's carefully reviewing Kruzeniski's recommendations and cited the safety of inmates and staff as its top concern.
It said its thoughts go out to Henry's family.
"We hope that the conclusion to the criminal proceedings in this case last year and the completion of the information and privacy commissioner's report bring them a measure of closure."
Dewar said Henry's family was very disturbed to learn about the lead-up to his assault.
"The fact that [Kruzeniski] has made some findings that there was negligence on the part of the corrections officer will, I think, somewhat appease them in terms of what they believe happened," she said.
Henry's father, Wayne Anderson, could not be reached for this story. At the end of Ermine's sentencing, Anderson said the family was considering a civil suit against the ministry.
"Mr. Henry's death was a senseless tragedy that was preventable," said Michael Nolin, the lawyer who defended Ermine. "My sympathy continues to go out to [Henry's] family as they absorb what may be new information to them.
"Hopefully [they] can get some meaningful compensation for their pain and loss. More importantly, hopefully they can get some closure and begin to heal."
with files from Dan Zakreski