The Crown has been granted a retrial in the case against a former Saskatchewan Penitentiary inmate found not guilty of participating in a riot.
Scott Robert Nelson was one of 14 inmates charged after a 2016 riot at Prince Albert‘s federal prison left one inmate dead, several others injured and over $3 million in damage to the prison.
Nelson was convicted of mischief under $5,000 and painting over the prison cameras for the purpose of obstructing the cameras from recording what was about to happen.
He was acquitted on the charge of taking part in a riot while wearing a mask or other disguise to conceal his identity. Crown prosecutor Dean Sinclair appealed the acquittal.
The appeal was heard in Saskatchewan’s Court of Appeal in January 2021 before Justices Ralph Ottenbreit, Robert Leurer and Jeffery Kalmakoff.
In a written decision dated March 11, Justice Leurer said he agreed with the Crown’s argument that the trial judge failed to consider that even if Nelson didn’t directly participate in the riot he could be found guilty as an aider and abettor to those who did.
Days before the riot, inmates and prison officials were involved in discussions to resolve a dispute about prison food. Inmates who worked in the kitchen had gone on strike.
On Dec. 14, 2016, inmates on ranges E3 and E4 refused to comply with an order from prison officials that inmates would be confined to their cells. Shortly after 1 p.m., the prison warden sent correctional officers to range E3 to speak with a large group of inmates refusing to return to their cells.
One of the officers identified Nelson as one of those inmates refusing to “lock up.” The officer also testified that Nelson and two other inmates were “inciting” others. Prison officials soon after ordered the officers to leave the range.
Prison officers monitored inmates through the video cameras and saw inmates cover their faces with masks and move items to blockade the entrance before the cameras were covered and disabled. The trial judge found that Nelson was one of the prisoners who painted over the video cameras.
Nelson’s lawyer, Estelle Hjertaas, argued that an inmate couldn’t leave his unit even if he wanted to and there was nowhere else to go. She argued that Nelson, who is now 35, painting the cameras and putting on a mask didn’t automatically implicate him in the riot and there wasn’t any clear evidence that the riot was intended at that time.
Justice Leurer, however, said he agreed with the Crown’s argument that the trial judge failed to consider if Nelson’s actions before the riot constituted aiding or abetting of the rioters.
“In my respectful view, the trial judge erred in law by failing to consider Mr. Nelson’s potential liability as an aider and abettor to the actual rioters,” said Justice Leurer.
“There is a very real possibility that this error affected the outcome of the trial and, as a result, a new trial is required.”
The new trial is limited to whether Nelson is guilty of the offence of aiding and abetting. A new trial date has not been set.