Prosecutors won't pursue further legal action in prisoner Matthew Hines's death

No further criminal action will be taken against two prison guards who had been charged in the 2015 death of Dorchester Penitentiary inmate Matthew Hines, New Brunswick Public Prosecution Services announced Wednesday.

A team of four prosecutors determined there was no prospect of conviction, even on a lesser charge of assault, and that provincial court Judge Ronald LeBlancdidn't make any errors in law when he discharged 49-year-old Alvida Ross and 33-year-old Mathieu Bourgoin in April.

• 2 prison guards charged in Matthew Hines's death will not stand trial, judge rules
• What Correctional Service Canada didn't want the Hines family to know

Ross and Bourgoin, who both pepper sprayed Hines less than two hours before his death, were charged with manslaughter and criminal negligence causing death, but LeBlanc found the force they used was reasonable and necessary.

The decision to officially end the criminal case against the correctional officers was made after a team of four prosecutors reviewed all the evidence presented at a preliminary inquiry, as well as evidence collected during a police investigation into Hines's death.

"Even though it would be maybe in the public interest to proceed with this, if the evidence is not there or not convincing enough, we will not pursue," director of public prosecutions Pierre Roussel said in an interview.

Roussel admitted the review was difficult for prosecutors, and a nearly hour-long video, whichshows what happened that night at the prison, was not easy to watch.

Graphic content warning: Extended version of Matthew Hines's final hour at the penitentiary

6 years ago

Duration 50:11

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.

"Mr. Hines was in the care of the state and considering that, when you are to review a situation like what happened in Dorchester that day, it's never easy for a prosecutor to make a decision like that," Roussel said.

In a written statement, the Hines family said they learned of Wednesday's decision through the media, which was "unacceptable."

"We feel that we are now fully informed of the details of the events and circumstances that led to Matthew's death and we strongly disagree with the present decision of the Department of Justice and the Attorney General not to pursue the case further either by way of judicial review of the decision of the preliminary inquiry judge, or by direct indictment in the public interest under the Criminal Code of Canada," the statement says.

'No basis' for judicial review

After hearing four days of evidence during a preliminary inquiry, LeBlanc determined Hines died "because of the [pepper] spray."

Butthat alone is not evidence that using pepper spray was dangerous or posed "an obvious and serious risk to his life," LeBlanc wrote in his decision.

The public prosecution servicehad three options following LeBlanc's decision: to seek a judicial review of the discharge decision, to do nothing, or to file a direct indictment against the accused, which would have sent Ross and Bourgoin to trial anyway.

Seeking judicial review would have meant asking the Court of Queen's Bench to review LeBlanc's decision to determine whether he made any errors in law.

After reviewing all the evidence, the team of prosecutors determined there was "no basis" to seek judicial review.

"The decision of the four lawyers who were sitting on that committee, who reviewed the whole thing, was in fact that there was absolutely nothing in Judge LeBlanc's decision that would permit us to go through a successful judicial review," Roussel said.

Guards have 'viable legal defence'

Sending Ross and Bourgoin to trial through direct indictment would have required written consent from the attorney general.

According to the provincial Public Prosecution Operation Manual, direct indictment should only be used "in exceptional circumstances that involve serious violations of the law."

The case must meet two criteria: the evidence meets "the usual charge approval standard" and "the public interest requires the matter be brought directly to trial."

Prosecutors initially believed the evidence was strong enough when the charges were approved and laid, but the service must continuously review the evidence it has, Roussel said.

"In this case, after the [preliminary inquiry], we were of the opinion that we were not meeting that test anymore," he said.

He said prosecutors no longer believed they could disprove a defence available to both Ross and Bourgoin under the Criminal Code as correctional officers. The defencecan be used if the person is acting within the scope of their duties, acted reasonably and didn't use more force than is necessary.

'He was a valued individual'

After Ross and Bourgoin were discharged, the Hines family urged prosecutorsto send the case to trial through direct indictment.

On Wednesday, the family's lawyer, Julie Kirkpatrick, wrote a letter toPierre Gionet, the lead prosecutor on the case, and urged the Attorney General's Office to reconsider its decision.

In the letter, Kirkpatrick argued the original judge,LeBlanc,"exceeded his jurisdiction in several ways."

"In light of the above comments, and given the significance of the issues that arise in this case, the family of Matthew Hines remain adamant in their view that prosecution of those responsible for Matthew's death is in the public interest and in the interests of justice," the letter says.

Wednesday's statement from public prosecution acknowledged the loss the Hines family has experienced, saying it wasn't lost on prosecutors that Hines "died while in the care of the state."

"He was a valued individual, particularly so to his family who will forever suffer his loss," the statement says.

'Please, I'm begging you'

Hinescame tocorrectional officers' attention on the night of May 26, 2015, when he refused to return to his cell at Dorchester Penitentiary. The 33-year-old from Cape Breton was serving a prison sentence for robbery at the time.

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.

• What the judge heard at the Matthew Hines preliminary inquiry

"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.

A use-of-force expert hired by Nova Scotia RCMP, which investigated thedeath of Hines,found the use of pepper spray was unnecessary and did not comply with policy or training.

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.

"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.

• Behind the Walls: Investigating the death of Matthew Hines

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 then 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.