Last Updated: January 2, 2011 10:01pm
KINGSTON -- An imprisoned career criminal who shot three police officers in a bloody bank heist 16 years ago has been given the go-ahead by Canada’s top court to pursue a claim for damages based on allegations he’s been treated cruelly in prison.
In a unanimous decision, the Supreme Court of Canada ruled that Mitchell McArthur of Kingston could ask Ontario’s Superior Court of Justice to consider his claim. The attorney general argued that McArthur couldn’t pursue his claim until he took his complaint first to the Federal Court of Canada.
“A textual, contextual and purposive interpretation of the Federal Courts Act does not support the view that a plaintiff who claims to have suffered compensable loss as a result of an administrative decision must first have the lawfulness of the decision determined by the Federal Court,” the Supreme Court decision states.
“Further, the Federal Courts Act does not prevent provincial superior court scrutiny of the constitutionality of the conduct of federal officials.”
The decision is a significant victory for McArthur, who has been battling federal authorities for years.
He is a notorious figure in Kingston, where a murder accusation still hangs over him. Kingston Police charged him in the disappearance of Tom Gencarelli, 24, who vanished in 1982.
Gencarelli’s body has never been found, but police say they’re certain he was slain.
The murder charge against McArthur was dropped in 1998 when a key Crown witness died before a trial could be held.
McArthur’s national notoriety was inflated in 1994 when he staged a bloody bank heist.
On Oct. 20, two masked bandits stormed into the Bank of Montreal branch in Port Perry, north of Oshawa. When the bank manager didn’t immediately comply with an order to open the safe, McArthur shot the man in the leg.
When police arrived, McArthur unleashed a fusillade of bullets from an assault rifle. Two officers were hit in the face, the third shot in the arm.
McArthur and his accomplice fled with $50,000. They took a man in his 70s hostage and forced him to drive the pair to a stashed getaway car.
Heavily armed tactical officers who burst into Kingston homes the next morning and arrested McArthur and his younger brother, Angus.
McArthur was convicted and sentenced to 23 years in prison for four counts of attempted murder and a slew of other charges, bringing his total of criminal convictions to more than 160 in a career that began in 1968.
The Crown appealed and his punishment was boosted to life in prison.
McArthur’s brother was acquitted. A bid to have Mitchell McArthur declared a dangerous offender failed.
McArthur alleges in his lawsuit that he was tossed into solitary confinement for roughly four and a half years after his conviction for the bank robbery. He alleges that he was put into solitary at maximum-security Millhaven Institution for 18 months and was kept in solitary for another 14 months when he was transferred to Kingston Penitentiary.
He spent another four months in isolation after his transfer to the super-secure Special Handling Unit at Ste. Anne des Plaines, Que., he claims.
McArthur complains that the confinement was “arbitrary and constituted cruel and unusual punishment.”
“He claimed to have suffered severe emotional and psychological injury and harm,” according to the Supreme Court decision. “He also alleged that the decisions to place him in solitary confinement were made deliberately and maliciously or negligently.”
McArthur claims he was denied private family visits “routinely granted to other inmates whose circumstances (were) similar” as well as schooling, rehabilitation programs and “inmate leisure activities.” He claims that his confinement caused his wife and daughter to suffer severe emotional and psychological harm because they were denied regular contact with him.
McArthur was out of prison on automatic early release when he committed the Port Perry holdup. He has escaped from Collins Bay in Kingston, Saskatchewan Penitentiary and Millhaven.
After his breakout from Millhaven in 1984, McArthur pulled at least three bank robberies over a span of 14 months before he was recaptured.
In 1990, he wrote an autobiography, I’d Rather be Wanted than Had, the Memoirs of an Unrepentant Bank Robber.
In 2005, the National Parole Board turned down his request for release, noting the violence of the 1994 holdup.
“You expressed remorse over your criminal behaviour today despite file information indicating that you have minimized these offences,” states the written record of his parole hearing.
“You agreed that your actions could have easily resulted in the death of your victims.”
The board rejected McArthur’s claim that the robbery was a “spur of the moment thing.” When the Ontario Court of Appeal boosted his sentence to life, it characterized the crime as the product of a “careful plan implemented with deadly detachment and efficiency.”
McArthur has been diagnosed with an anti-social personality disorder. Psychiatric reports support his designation as a dangerous offender, according to the 2005 parole document.
McArthur waived his right to a parole hearing in May 2010 and another hearing is tentatively scheduled for 2012.
McArthur has changed his name to Michiel McArthur Hollinger.
rtripp@thewhig.com