New trial sought in prison riot case

Judge erred in acquittal of inmate over rampage at Sask. Penitentiary: Crown

The alleged role of a former inmate in a deadly prison riot came back in front of the courts this week as the Crown seeks a new trial in the matter.

Scott Robert Nelson was one of 14 inmates originally charged after a riot at the Saskatchewan Penitentiary in Prince Albert which left fellow inmate Jason Leonard Bird dead and numerous others — among them Nelson himself — injured. The December 2016 incident began as a protest over food quality and portion sizes.

Nelson, now 35, took a charge to trial related to masking during an unlawful assembly or riot and was subsequently found not guilty. He admitted to a mischief offence for which he was sentenced.

The Crown appealed the acquittal, arguing trial judge, Queen's Bench Justice Richard Danyliuk, made a number of errors in reaching his decision last year.

The Crown — represented at appeal by Dean Sinclair — cited on Wednesday a number of grounds, among them that Danyliuk failed to consider whether Nelson aided or abetted in the riot; that the judge failed to consider the evidence in its totality; and that he speculated on matters not in evidence in reaching his decision; among other grounds.

Sinclair argued the trial judge determined Nelson was not a main player in the riot but failed to consider — as the Crown argued he was required to — whether Nelson aided and abetted others in committing the offence.

Being a party to an offence also makes an accused guilty, Sinclair said.

In this case, the Crown noted Nelson painted over the cameras in the area involved and donned a mask. The painting of the cameras occurred within 10 minutes of the start of the riot, a fact Sinclair argued points to Nelson's involvement in events that followed. So too, he argued, did the fact he wore a mask in preparation for the potential deployment of tear gas.

Sinclair claimed Danyliuk incorrectly drew assumptions about Nelson's presence at the time of the incident, arguing he was wrong to side with a defence claim Nelson had no choice but to stay with the rioters if he didn't want to face violent repercussions from his fellow inmates. Sinclair said there was no evidence before the court to suggest Nelson would be targeted and added he was breaking the law in not obeying the Riot Act proclamation from the warden or the instructions of the Emergency Response Team.

Nelson's lawyer Estelle Hjertaas argued the threats faced by prisoners who go against other inmates is real and that Nelson, as an inmate of the impacted unit, had nowhere to go even if he'd tried. She added the fact Nelson painted cameras and put on a mask don't automatically implicate him in the riot that followed, nor was there clear evidence a riot had been intended in the first place.

She suggested any prisoner anticipating tear gas might don a mask, whether or not they were participating in events.

Sinclair also argued Danyliuk weighed each piece of evidence “in a silo” rather than looking at them all together as required. Hjertaas argued the trial judge weighed evidence appropriately in coming to his decision.

Court of Appeal Justices Ralph Ottenbreit, Robert Leurer and Jeff Kalmakoff reserved decision.