Judge says 2011 Edmonton prison killing remains 'suspect,' recommends public inquiry

After more than a decade, two police investigations and several probes of staff conduct at Edmonton's maximum security prison, a judge says it's still unclear exactly what led to Mason Tex Montgrand's death in custody.

In yet another look at the case through a fatality inquiry, Justice Donna Groves is recommending a broader public inquiry, concluding the circumstances of the killing on Aug. 16, 2011, "remain suspect."

"I find that the circumstances surrounding the death of Montgrand is a matter of public concern," the judge wrote in her final report, released this month.

Groves noted there was significant information that was withheld from her inquiry, making it difficult to issue "any meaningful recommendations" aimed at preventing similar deaths.

Without a full picture of the situation, "Circumstances like those surrounding the death of Montgrand would require an inquiry that goes beyond the limited and restricted scope of a fatality inquiry," she said.

That includes the possibility of an investigation to fully explain why the Alberta Crown Prosecution Service (ACPS) chose not to lay charges that the Edmonton Police Service wanted to pursue.

Montgrand was 21 when he was fatally stabbed at the Edmonton Institution on Aug. 18, 2011.

No one has ever been held criminally responsible in his death.

Another inmate, Lance Regan, was charged with first-degree murder a few days after the killing.

By 2016 — five years after he was charged — Regan still hadn't gone to trial. The case became the first murder charge in Alberta to be stayed under the Supreme Court's Jordan decision, which sets a 30-month ceiling for the period between laying charges and the start of a superior court trial.

The Court of Appeal of Alberta overturned the stay, ordering a new trial in early 2018. But in October of that year, the Crown quietly stayed the murder charge against Regan again, effectively dropping the case.

Judge questions conclusions of CSC investigation

The fatality inquiry, concluded nearly 14 years after Montgrand's death, heard that he and Regan were members of rival gangs. Correctional Service of Canada (CSC) staff were advised several months before Montgrand's death that the groups were "at war" with each other.

Groves's report says on the day of the killing, two correctional staff members decided Regan and Montgrand, who were being held in cells directly next to each other, could be let out at the same time to shower. 

Video surveillance caught Regan going into Montgrand's cell and attacking him when he returned. A weapon was never recovered.

Fatality inquiries are prohibited from making findings of legal responsibility, which Groves stresses in her examination of the case.

But she raises concerns about how federal prison authorities handled the incident.

Her report says an Edmonton Institution correctional officer claimed Regan and Montgrand had made multiple previous requests to be allowed out together. But there was no written documentation showing that happened, apart from statements written by two other officers, two days after the stabbing.

An internal CSC board of investigation determined in 2011 that Montgrand and Regan's gang affiliations didn't contribute to the incident, saying they had a "lengthy personal history" because they grew up in the same area, and had asked to be out of their cells together.

But Groves said the lack of any evidence of those requests from before Montgrand's death "should have sounded an alarm to the board."

Additionally, she said it's since been proven that the pair did not grow up together.

"I am uncertain where the board acquired this inaccurate information."

Police investigate alleged 'fight club'

After the first homicide investigation in 2011, police reviewed Montgrand's death a second time in 2017.

It was part of a massive investigation EPS called "Project Max," prompted by the former head of the CSC reporting alleged criminal offences at the Edmonton Institution.

Among the allegations was a "fight club" inside the prison where guards directed or allowed inmates to assault each other. An EPS investigator was tasked with examining whether one or more correctional officers orchestrated Montgrand's homicide by purposely letting him out of his cell with an "incompatible" inmate, the report said.

The fatality inquiry heard that in April 2018, EPS recommended that a correctional manager and two correctional officers be charged with murder and criminal negligence causing death in relation to Montgrand's case.

The correctional manager still works for CSC at another institution, according to Groves's report. The two officers are no longer employed with CSC.

The Crown declined to pursue the charges — a decision EPS challenged twice, asking the executive director of specialized prosecutions for a review, then escalating it again to the province's ACPS division assistant deputy minister.

"In our view, the evidence meets the threshold of a 'reasonable likelihood of conviction' and the public interest clearly favours the prosecution of charges for this incident," then-interim EPS chief Kevin Brezinski wrote to the government official.

But each time, the decision was not to prosecute, citing insufficient evidence for a conviction.

Regan was later among five Edmonton Institution inmates who sued prison guards, the warden and the federal government, alleging abuse.

The lawsuit was settled out of court, but settlement details aren't known due to a non-disclosure agreement.

CSC, province reviewing inquiry recommendations

Another CSC disciplinary investigation looked into allegations of serious misconduct by some of the staff at the Edmonton Institution from 2014 to 2017.

In the final report, correctional officers who were interviewed spoke about knowing of a "fight club" that involved "allowing two rival gang members out to fight."

But the documents disclosed to the fatality inquiry were "so heavily redacted as to be of limited assistance," Groves wrote.

The judge also didn't have access to all the disclosure related to the EPS "Project Max" investigation, which she said shouldn't be separated from the specific police review of Montgrand's death.

In addition to the call for a public inquiry, Groves concludes her report with a recommendation for a CSC policy directive "mandating that all CSC employees have a duty to report any staff behaviour they are aware of, that contravenes policy directives, when such behaviour could cause harm to an inmate or other CSC staff."

The service is reviewing the fatality inquiry findings, according to a CSC spokesperson.

Policies and training initiatives have been specifically updated for safety and security at the Edmonton Institution in the 14 years since Montgrand's death, the spokesperson said in a statement.

There's also now a confidential tip line for CSC employees to report concerns about misconduct, the spokesperson said.

Heather Jenkins, the press secretary for Alberta Justice Minister Mickey Amery, said the province is considering the recommendation for a public inquiry, but no decisions have been made.

The government and CSC have until July 7 to submit an official response to Groves's recommendations.