GSB# 2001-1578

UNION# 2001-0582-0055

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Collin)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Dan Harris

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Lisa Compagnone Counsel Ministry of Government Services

HEARING

September 20, 21, 22, 23 & 30, October 17, 18 & 20, 2005; June 8, 12, 26, 28, 29, 2006.

WRITTEN SUBMISSIONS

July 21, 2006.

Decision

Background

This is a matter of some vintage. It involves an assault against an inmate at the Toronto East Detention Centre that took place on February 2, 2001. There were originally seven grievors: Dale Sammy, Mark Dewar, Donald Cuthbert, Alton McFarlane, Carlton Johnson, Tim Collin and Robert Mondesir. These men were all correctional officers at the time and were suspended for allegedly having participated in the assault. The Ministry of Correctional Services instituted an investigation of the circumstances of the assault. As a result of its dilatory approach to the implementation of the results of the investigation, the union successfully brought an application that six of them be put back on the payroll, on an interim basis, pending completion of that process. Mr. Dewar had already been returned to work. The Board’s Interim Order is found at: OPSEU (Sammy et al) and MCS (GSB 0224/01 Harris, October 9, 2001). The last remaining grievor now before the Board is Tim Collin. Over the course of the proceedings, the Board was advised that the other grievances were settled. Mr. Collin was discharged from his employment on November 5, 2001. Messrs. Mondesir, Cuthbert and Sammy were also discharged. Messrs. Johnson and McFarlane received suspensions.

Sammy, Cuthbert, Collin, Dewar and Mondesir were charged criminally and stood trial. The Honourable Madam Justice Sparrow’s Judgment is dated January 27, 2004. It summarizes the proceedings in its first two paragraphs as follows:

1The five accused in this matter were all correctional officers (CO’s) at the Toronto East Detention Centre (TEDC) on February 2, 2001, the date they allegedly assaulted inmate Harold Pearson causing him bodily harm. Criminal charges were laid on February 17, 2001 and ultimately withdrawn against five other officers. They were suspended from their jobs at approximately the same time, and terminated in the fall of 2002 [sic – 2001] following an internal investigation conducted by Mr. Robert Ewing. The proceedings, which began on April 18, 2002, were replete with applications, motions, voir dires, a view and evidentiary arguments, and continued intermittently for fifty-five days until November 13, 2003.

2In complex, detailed and frequently disjointed testimony, Crown and defence witnesses presented different versions of an incident that occurred in Pearson’s cell and the surrounding area on February 2nd, and what happened before and after. The Crown submits that its witnesses are forthright and credible, while defence argues that their testimony is distorted and contradictory. The accused, they submit, are believable, and have not been proved to be either principals or parties to a prisoner assault.

On the procedural side, it is largely sufficient for this Board to simply echo the comments of Sparrow J. These proceedings were also replete with applications, motions, a view and evidentiary arguments. In addition to the interim relief application, there was a motion that the hearings be held in camera, that the grievances be dismissed without a hearing and a prehearing motion to resolve what the effect of the criminal proceedings was upon the admissibility of evidence here.

This hearing began on the merits on September 20, 2005, more than four years after the assault. At the outset, only Messrs. Collin’s and Mondesir’s grievances remained before the Board. There were thirteen days of hearings, during the course of which the Board was advised that Mr. Mondesir had settled his grievance. Accordingly, this Decision deals with the discharge of Tim Collin for having assaulted an inmate at the Toronto East Detention Centre on February 2, 2001.

The Criminal Proceedings

As set out above, the criminal proceedings regarding this assault were thorough and resulted in specific findings that bind this Board. On a number of occasions in the instant proceedings, I characterized the assault as “vicious”. Counsel for the union took umbrage at that characterization. It is most helpful and necessary to glean from Sparrow J.’s reasons what the Court thought of the assault and Mr. Collin’s participation in it.

First, it must be acknowledged that Mr. Collin was found guilty of having been a party to the assault. The Court’s specific findings at trial with respect to Mr. Collin are set out in her Judgment of January 27, 2003 as follows:

129Pearson was unshaken in his testimony that Collin provoked him when he escorted him to segregation, and that he kicked and punched him while he was on the floor. However, it is clear that although he told Ewing about Collin’s behaviour en route to cell 2118, he made no mention of him entering the cell. Blundell confirmed that Collin struck Pearson, but described it as a knee to the chest, rather that[sic]a kick.

130On the basis of the above conflicts, I cannot find beyond a reasonable doubt that Collin administered a blow. However, with regard to the argument that he was a party, I note the following; 1) he was friendly with Sparks, and therefore had a motive to participate; 2) he treated Pearson aggressively during the search, as confirmed by Parish, and berated him for bumping Sparks; 3) he abandoned his post and headed to 2C as soon as he heard about a problem with Pearson; 4) he was placed in or at the cell by Dewit and Blundell; 5) he acknowledged helping return Earley and Availis to the cell “for control”; 6) he stopped to put on gloves; 7) he was heard by both Pearson and Blundell saying “no one was here” after the assault; 8) he approached Gowher about viewing the tape and 9) he further demonstrated consciousness of guilt by approaching Dewit about “remaining solid”. On all of the evidence, I do not have a reasonable doubt that he was present in, or at the very least at the periphery of the cell, watching what transpired, contributing to the intimidation of Pearson and encouraging the assault by failing to intervene. He will therefore be found guilty as a party, pursuant to Nixon, supra and s.21(1) of the Criminal Code.

Sparrow J. acquitted Mr. Dewar but found the other four guilty. Her sentencing Judgment was given April 29, 2004. Collin and Mondesir were given conditional discharges; Cuthbert was convicted and sentenced to forty-five days, to be served conditionally; Sammy was convicted and received a suspended sentence. Sparrow J. made the following comments about Collin:

Mr. Collin, thirty-six, became a correctional officer in 1995, following three years with the Canadian armed forces and several years with the reserves prior to that. He reached the level of sergeant, and produced many letters praising his leadership and skills. Among other achievements, he was chosen to hoist the flag for Canada in a D-day celebration in France in 1994. His younger sister testified emotionally as to his character, describing the care he showed for her and their mother during serious illnesses. He has a college certificate and some university education, and aspires to be a teacher, given that his desire to be a police officer has been frustrated by an eye problem. He has suffered illness, loss of a major relationship and severe financial and emotional strain over the thirty-seven months. He has been able to find only a few poorly paid jobs.

Ultimately, I did not make a finding that Mr. Collin administered any blows; however, like his co-accused he clearly aided and abetted by forming part of the intimidating group, failing to intervene, and helping to move the cellmates. I also found that he asked Gowher for the tape, and along with Cuthbert told Dewit to “remain solid”. His conduct, like that of the others, breached the trust of the public, and requires that something be paid back. Given his excellent record and references, however, his relatively low level of proved involvement and the serious damage already suffered, a discharge will be granted, with a period of probation of six months. He will report to a probation officer immediately and thereafter as required, fulfill the statutory terms and perform fifty hours of community service.

In order to give full effect to the Court’s findings, it is necessary to understand what it was that Collin “aided and abetted by forming part of the intimidating group, failing to intervene, and helping to move cell mates”. To do so, one need go no further than Sparrow J.’s sentencing findings regarding Donald Cuthbert, which are as follows:

Mr. Cuthbert, now thirty-six, had been a correctional officer for almost three years at the time of the assault, and presented various letters of reference compiled in 2000, when he applied to become a member of the Royal Canadian Mounted Police. He was to commence training with that force in April 2001; however, Mr. Black states that the offer was suspended, and will be withdrawn as a result of his conviction. He is a community college graduate, with a varied but solid work background; in addition, he is a member of the Toronto Police Services Auxiliary. Currently, he is working as a bouncer in a bar, earning about half of his $60,000 salary as a correctional officer. He is married, with two children, but has been separated for a year – according to his wife, because of the stress and severe financial strain of a thirty-seven-month case, loss of a secure job with good benefits, and serious damage to his reputation caused partly by significant publicity. The family condominium was sold due to lack of funds.

In weighing the significance of the financial and emotional strain to all of the accused, I have considered the fact that all counsel, including theirs, conducted a protracted legal battle, replete with motions and lengthy submissions, and repeated underestimations of the time required for completion. Unfortunately, counsel did not start complaining about the delay until many months into the trial, a fact reflected in my decision on lengthy s.11(b) motion. Nevertheless, I cannot seriously discount the severe effects of these lengthy proceedings on all of the [sic] lives, in determining what is necessary to achieve the goals of denunciation and general deterrence.

Ultimately, however, I must consider Mr. Cuthbert’s actions to have been particularly vicious - pulling Pearson’s leg causing him to fall, stomping on his groin, pulling out at least one clump of his hair, then leaving the scene with Pearson in distress. While his injuries were not permanent, he experienced bruising and extended pain in his groin and abdomen. Cuthbert was not in the situation of an officer who has been provoked or alarmed during a heated, on the spot confrontation in execution of duty, but rather was part of a group who needlessly overwhelmed a prisoner and from the outset risked altercation. He acted out of the spotlight, protected by a phalanx of officers, and later made attempts to protect himself by urging the Crown witness Dewit to “stay solid”. Given all the aggravating factors, a term of custody is required to effect the goals of sentencing as it was in the case of the major offenders in Cronmiller, supra.

He is hereby convicted and sentenced to forty-five days, to be served conditionally, with the terms to be set following oral submissions. He will also be placed on probation for eight months and perform seventy-five hours of community service, to pay something back to the community for the disservice done to the public trust.

(emphasis added)

Mitigation

From a plain reading of the forgoing passage, it is clear that the Court found the actions of Mr. Cuthbert “to have been particularly vicious”. He was convicted for that vicious assault. Mr. Collin’s failure to concede this point does not redound to his credit.

Mr. Collin and Mr. Mondesir were provided with separate counsel at these proceedings. Throughout the proceedings, union counsel sought to deflect or diminish Mr. Collin’s culpability by re-engaging the issues determined by the Court. This was done in the name of “mitigation”. That is, it was submitted that this Board could not appreciate the minor role he played without re-examining the circumstances of the assault. Part of that approach was to thoroughly test the employer’s evidence without conceding any responsibility until Mr. Collin testified on June 8, 2006, on the ninth day of the hearing, more than five years after the assault.

As set out above, the employer had previously brought a prehearing application to dismiss the grievances without a hearing. The Board’s decision is at OPSEU (Sammy et al) and MCS (Harris, Nov. 4, 2004, GSB 2001-0223 et al) and the Board’s reasons are set out there as follows:

Many of the authorities relied upon by the parties pre-date the Supreme Court of Canada’s decision in Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77. Further many of the submissions invite me to weigh and compare the circumstances of those authorities with the circumstances of these matters, as found by the Criminal Court and laid down in its Reasons. In my view, such consideration is more appropriate at the conclusion of the case. These grievors have been found by the Criminal Court to be guilty of assaults upon an inmate. The Court has convicted them for these assaults. However, the Union says that there are mitigating factors that speak to the reduction of the penalty imposed, and I should hear that evidence. This issue was previously dealt with by the Board in Ministry of Natural Resources and OPSEU (Timmerman) (2004), GSB#2000-0092(Harris) in part as follows:

The Employer also relies on Toronto (City) v. C.U.P.E., Local 79 2003 SCC 63, [2003]3 S.C.R. 77 in particular at paragraph 58, in part, as follows:

In short, there is nothing in a case like the present one that militates against the application of the doctrine of abuse of process to bar the relitigation of the grievor’s criminal conviction. As a result of that error of law, the arbitrator reached a patently unreasonable conclusion. Properly understood in the light of correct legal principles, the evidence before the arbitrator could only lead him to conclude that the City of Toronto had established just cause for Oliver’s dismissal.

The Union conceded that the Board is constrained by the law as set out above. However, it submitted that the Board may still enquire into whether discharge from her employment was the appropriate penalty to impose upon the grievor. It said that there were many mitigating factors to put before the Board.

Here, there can be no doubt that to inflict a criminal assault against an inmate is just cause for discipline nor can there be any doubt, as a matter of law, that the fact of the assault is proven by the findings of guilt in the Criminal Court. However, the union may lead evidence and make submissions with respect to the mitigation of the penalty, as did the grievors’ counsel at the criminal proceedings. As the Supreme Court directed in Toronto (City) and CUPE, supra, this Board will give full effect to the conviction.

Mitigation of a penalty in labour relations matters is a well understood concept. In Ontario (Registrar, Motor Vehicle Act v. Jacobs (2004), 69 O.R.(3d.)463(Div.Ct) the concept of mitigation of a penalty is described as follows at paragraph 33:

At no point in the Tribunal’s proceedings did Mr. Jacobs acknowledge any fraudulent intent in the transactions that led to his convictions. He continued to pass off his criminal conduct before the Tribunal as a sad, yet personally blameless, series of mistakes caused by problems with which the industry was struggling. It is one thing to accept responsibility, express remorse and point to rehabilitation. It is another thing to deny guilt in the face of a criminal conviction. It is one thing to point to mitigating factors. It is another thing to deny the criminal intent underlying a fraud conviction and to pass oneself off as the victim of a bad employee and widespread industry problems.

The Evidence

The following is an overview of the evidence led.

Mr. Rob Hamblin was the employer’s first witness. He had more than twenty-six years experience with the Ministry in various capacities. He became the Acting Superintendent of the Toronto East Detention Centre in September 2001. Accordingly, when he arrived at the institution, he received the Investigator’s Report, which had been available since July 24, 2001. He sent a letter to Mr. Collin dated September 11. 2001 setting out the allegations against him and advising him of the time and place of the meeting scheduled to give Mr. Collin an opportunity to respond to the allegations. Mr. Collin was provided with a copy of the Investigator’s Report. Mr. Hamblin presided at that meeting; Mr. Collin, on the advice of his criminal counsel, made no response. After further consideration, Mr. Hamblin then sent a letter dated November 5, 2001 to Mr. Collin advising him that his employment was terminated and giving him the reasons therefor. At page two of that letter Mr. Hamblin’s conclusions are set out as follows:

• On February 2, 2001 you used excessive force on Inmate Pearson.

• You obstructed a ministry investigation by trying to obtain a video tape recording from the hallway of 2C.

• You threatened CO Dewit by telling him to remain quiet about the incident of February 2, 2001.

• You failed to provide written reports on the fact that you had applied force on an inmate, as required by Ministry policy and procedures.

• You failed to provide care, custody and control as required of a correctional officer in that you deliberately sought out and harmed an inmate entrusted to the care of the Ministry.

• You failed to provide care, by not attempting to obtain medical assistance for inmate Pearson, who was obviously injured following the assault.

• You participated in behaviour that was premeditated, willful and deliberate and then made attempts to cover up your indiscretions.

Mr. Hamblin’s cross-examination dealt with the allegations made in the letter of September 11, 2001 and the findings in the discharge letter of November 5, 2001. His cross-examination closely parsed the various considerations he gave to the facts and conclusions set out in the investigator’s report. Mr. Hamblin testified that he considered the mitigating factors set out as examples in the Ministry policy documents and weighed the actions of the various CO’s involved when determining the level of discipline to be imposed. I found Mr. Hamblin to be a credible witness who stepped into a serious situation and made every effort to fairly deal with that situation.

Peter Dewit also testified. He was a CO who was also on duty at the time of the assault. He testified that he had very little direct recollection of the events as at the time he testified in these proceedings. He did testify that to “remain solid” is to stay quiet, not report others – “to basically cover up for them, whatever their actions might be”. He said that Mr. Collin and Mr. Cuthbert had conveyed that message to him.

In his cross-examination, counsel sought to establish that Dewit had seen the inmate after the others had left and he did not appear to need medical attention. It was submitted that these questions were proper since some other actor(s) might be the cause of the injury.

The parties then made extensive submissions on the scope of questioning open to the union regarding the extent of the inmate’s injuries and when they became apparent. The employer said that any evidence that sought to undermine the findings of the criminal court is inadmissible, irrespective of the purpose for which the evidence is sought.

The union said that the evidence relating to the degree of injury and when it was noticeable was relevant to whether different employees had improperly been given different, read lighter, discipline for failure to report the inmate’s need for medical attention.

These evidentiary submissions took two days, following which I made the following oral ruling:

This ruling arises in the context of the cross-examination of Peter Dewit. Mr. Dewit is a correctional officer who provided evidence for the Crown at the criminal trial of the two grievors in the instant matters, Messrs. Mondesir and Collin.

The question put to Mr. Dewit is whether it occurred to him that the inmate might be in distress. The timeframe under consideration is after the inmate was assaulted by the CO’s involved, including the grievances and before Mr. Dewit’s dinner break. The Employer says that his answer is irrelevant because the Trial Judge found that the inmate was in distress. The Union says it is arguably relevant for any number of reasons including to establish that the inmate may have been injured by others, or suffered self-inflicted injuries, after this timeframe. Another issue to which the answer might go is whether the grievors were subjected to differential treatment, for example than that given to Mr. Dewit, or received, purportedly, to mitigate the penalty.

The admissibility of this evidence is governed by CUPE v City of Toronto. The starting point for analysis is paragraph 19:

19 Here, however, the admissibility of the conviction is not in issue. Section 22.1 renders the proof of the conviction admissible. The question is whether it can be rebutted by “evidence to the contrary”. There are circumstances in which evidence will be admissible to rebut the presumption that the person convicted committed the crime, in particular where the conviction in issue is that of a non-party. There are also circumstances in which no such evidence may be tendered. If either issue estoppel or abuse of process bars the relitigation of the facts essential to the conviction, then no “evidence to the contrary” may be tendered to displace the effect of the conviction. In such a case, the conviction is conclusive that the person convicted committed the crime.

The Court framed the question before it at paragraph 21 as follows:

The question therefore is whether any doctrine precludes in this case the relitigation of the facts upon which the conviction rests.

The Court went on to find that the doctrine of abuse of process precluded the relitigation of the facts upon which the convictions rested there. It is important to note that evidence may not even be tendered.

The Court’s instructions are to focus on the integrity of the adjudicative process, not the motives of the party who seeks to relitigate. Paragraphs 46 and 51 are instructive:

46 Thus, in the case at bar, it matters little whether Oliver’s motive for relitigation was primarily to [page, 107] secure re-employment, rather than to challenge his criminal conviction in an attempt to undermine its validity. Reliance on Hunter, supra, and on Demeter (H.C.) supra, for the purpose of enhancing the importance of motive is misplaced. It is true that in both cases the parties wishing to relitigate had made it clear that they were seeking to impeach their earlier convictions. But this is of little significance in the application of the doctrine of abuse of process. A desire to attack a judicial finding is not in itself an improper purpose. The law permits that objective to be pursued through various reviewing mechanisms such as appeals or judicial review. Indeed reviewability is an important aspect of finality. A decision is final and binding on the parties only when all available reviews have been exhausted or abandoned. What is improper is to attempt to impeach a judicial finding by the impermissible route of relitigation in a different forum. Therefore, motive is of little or no import.

51 Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

Here, the condition of the inmate during the timeframe in question has been determined by the Trial Court at pp 51-52 which concludes as follows:

“Having concluded that a group of correctional officers is responsible for assaulting [the inmate], it is necessary to determine the guilt or innocence of each accused.”

The only reading possible of that portion of the reasons is that the Criminal Court Judge rejected the defence that the injuries occurred after the assault by the CO’s.

Accordingly, it would be an abuse of process to relitigate the condition of the inmate at that time because in my view that condition is an essential fact upon which the findings of guilt against Mondesir and Collin rest.

In the Motor Vehicle Case, the Divisional Court, chaired by Mr. Justice O’Driscoll, rejected the Tribunal’s decision as a relitigation of such a rejected defence.

61A review of the trial and Court of Appeal record demonstrates that the Tribunal accepted the very defence that was rejected by the trial judge and the Court of Appeal.

70By relitigating criminal intent, the Tribunal instituted an inquiry upon which it had no business to embark and thus erred jurisdictionally.

What is permissible is evidence that goes to mitigation (s.46). The Motor Vehicle Case makes clear what that Court takes mitigation to be.

In the result the question is improper then the evidence it would elicit would be an abuse of process.

In the course of hearing submissions on this evidentiary point, a request was made that written reasons be provided prior to resuming the hearing. As noted above, submissions on this evidentiary matter consumed two days. It is within an adjudicator’s discretion as to when it would be appropriate to interrupt the proceedings by taking the time to produce written reasons. In my view it would be the exception rather than the rule to engage in such an interruption. Matters of evidence ought usually to be dealt with by way of oral reasons.

John Gowher also testified for the employer. He was an operational manager on duty the night of the assault. He discovered the inmate in pain and took him to receive medical attention. This occurred at 17.50. He also gathered relevant evidence including the videotape from the unit 2A “camera machine”. Sparrow J. found that Collin asked Gowher to view that tape.

The union cross-examined Mr. Gowher by pursuing a line of questioning directed to the exploration of Mr. Collin having asked Mr. Gowher to view the videotape. The objection raised by the employer was based on the submission that the union was seeking to undermine that finding of fact made by the Trial Judge. In the course of his submissions on behalf of the union, Mr. Leeb stated that the union agreed that Mr. Collin had indeed asked for the tape, but, it was an honest (innocent) request. Indeed, they had viewed such videotapes together in the past. In reply, the employer noted that paragraph 130, point 8, supra, was a fact upon which the guilty consciousness of Collin rested.

In my view, that paragraph clearly relates to the facts upon which Sparrow J. based the mens rea of the offence and we could not relitigate whether or not he innocently asked to view the tape because the Trial Court found the request to be part of his consciousness of guilt.

The union case began with an opening statement on behalf of Mr. Collin. For the first time in over five years since the incident took place the union submitted that Mr. Collin fully accepted his role in this “serious infraction”. It also said that the situation was made much worse by his failure to report the incident. In challenging the employer’s case in chief, the union had gone to great lengths to attempt to establish that it was common in the workplace and excusable, not to file occurrence reports unless asked to do so.

In his evidence, Mr. Collin reviewed his experiences as a corrections officer, noting occasions when he had gone beyond the requirements of the job. He also reviewed formal commendations he had received. Mr. Collin also reviewed his prior military career including what were said to be performance appraisals, and various successfully completed assignments. He emphasized his leadership skills, trustworthiness and desire to be a corrections officer in order to be a “role model”.

He also said that he separated from his wife in 1994 and in 2000 was involved in court proceedings regarding the joint custody of their daughter. Those proceedings resulted in some $15,000 in legal fees, requiring him to work a lot of overtime. His mother became ill in the summer of 2000 with breast cancer and his sister also was diagnosed with a malignant tumor behind her knee that same summer. His mother’s cancer spread in early 2001. The effect of these family problems left him “paralyzed financially”. Also, his mother and sister lived in Peterborough. He would transport both his mother and sister to their various appointments, necessitating lengthy commutes from his home in Toronto.

Mr. Collin testified that his actions were wrong on the day the inmate was assaulted. He said he was shocked and in a state of disbelief as events unfolded. He said that he didn’t have the guts to stop it; he was not brave enough. However, now he feels that in the future he could. He said that he did not come forward in subsequent days because he was afraid of losing his job and going to jail. He gave evidence of the “Code” of silence.

He was asked why he was now telling the truth for the first time. His answer was that he was being brave. He says that if he was permitted to return to work he could be trusted to put a complete halt to any such situation in the future.

Mr. Collin recounted the jobs he had had since being discharged, and a period of time off work, on disability payments, while on stress leave. He did not know if the payments were from the W.S.I.B. or a private insurer. Throughout this period he was involved in the criminal proceedings relating to the assault. Of those proceedings he said he should have had his own lawyer and should have told the truth. He said that during the trial he “knew his role”. He didn’t like what people were saying; it put him in a bad position. The clear implication of this evidence was that he was coerced by circumstances into misleading the Court.

Mr. Collin provided a number of letters attesting to his good character. A number of witnesses were called to the same effect, including Sean Dalton, an I.C.I.T member who had worked with him. He said that the allegations of Mr. Collin having assaulted an inmate were completely out of character. He said he would work with him again. Gary Peck also testified on Mr. Collin’s behalf. Mr. Peck has worked with Mr. Collin as a CO colleague and as his supervisor. His experience with Mr. Collin led him to believe Mr. Collin is a professional corrections officer in demeanor, deportment and every aspect of his manner. Notwithstanding Mr. Collin’s belated admission that he ought to have filed an occurrence report, Mr. Peck testified in chief that employees don’t file them, unless directed to, if incidents involve other employees. He attributed this to the “Code of Silence”. Mr. Peck said that he would welcome Mr. Collin back with open arms if he was to be reinstated. Mr. Peck was also the Local President at the time of the incident. The union also called Mr. Collin’s sister, Terry Collin. She has a Phd. in medical science, received in November 2005, and a Masters degree in Counseling Psychology. She said she is very close to him as both a brother and as a father figure. She described the support he provided during her illness in 2000 and during that of their mother. In her view, Mr. Collin was under a considerable degree of stress. They were all sad and depressed.

Karen McDonald also gave evidence. She was an operational manager at Central East Correction Centre. She worked with Mr. Collin as CO at Toronto East, usually in unit 2C in segregation. She would often ask to be partnered with Mr. Collin because he got the job done and done well. When told that the Court had found him not to be a credible witness, she said that was out of character. She said she would support his return to work because his was a one-time poor judgment call. Under cross-examination it was apparent that she was unfamiliar with all of the details of Mr. Collin’s situation and conceded he had exhibited poor judgment on a number of occasions. In redirect examination she clarified that the poor judgment she referred to in chief encompassed the whole string of events.

Steve Aspiotis also testified for the union. He was employed at Toronto East as an acting OM from 1993 through 2005 for approximately 75% of the time. The rest of the time he worked as a CO. He worked with Mr. Collin in both capacities. He said that Mr. Collin has strong communication skills and has a calm demeanor. He said that he knew Mr. Collin had been charged and found guilty for this incident. He was not aware that he had been found not to be credible, had told the employer he was not involved and had told CO Dewit to “remain solid”. He described those actions as “very wrong”, but nonetheless would take Mr. Collin back “in a minute” based on his personal experience with Mr. Collin.

The union also called Joel Gardner. He was an OM at Toronto East. He worked with Mr. Collin as an acting supervisor and, on occasion, as a CO. He said Mr. Collin was mature, hard working, conscientious and had a level head about him. He described situations where Mr. Collin had acquitted himself well. He also said he knew that Mr. Collin had been found guilty, had been found not to be a credible witness and had told CO Dewit to “be solid”. Nonetheless, he said he would accept him back at Toronto East “given the fact he’s owned up to some of his actions, his maturity displayed during this process and his conduct with me.” Mr. Gardner said that he believed Mr. Collin has learned his lesson. When asked what he based that belief on he said, “A personal gut check.” Later he said that the fact that Mr. Collin “admitted fully of his actions” meant a lot. “He had to own up to his actions and pay the price.” He based this belief in Mr. Collin’s candor on what he read in the paper at the time of the verdict and in his discussions with Mr. Collin and counsel for OPSEU in preparation to give his evidence.

The Submissions of the Parties

The parties made lengthy final submissions which are briefly summarized as follows.

The employer submitted that full effect must be given to the Court’s findings and to do so establishes just cause for Mr. Collin’s discharge. Further, following the traditional approach to assessing a claim for mitigation leads inexorably to upholding the discharge.

The grievor was a peace officer who is to be held to a high standard of conduct. He was found to have participated as a party in an assault against an inmate in his care, custody and control, causing him bodily harm. He lied to his employer and sought to cover up his involvement. He threatened a fellow CO using the “stay solid” lexicon. Years later he testified in Court to a fabricated story in concert with his co-accused. That story included false allegations against a fellow CO, Blundell. His testimony at Court was found not to be credible. His late entry into truthfulness before this Board was not worthy of belief and simply demonstrates that he still does not appreciate the severity of his actions. He has not truly expressed remorse. He brought a parade of uninformed character witnesses whose evidence should be given no weight. Here he is seeking to get his job back; when at court he used the loss of his job to mitigate his criminal sentence. His financial losses are no more extraordinary than would be expected in any discharge. Indeed, such as it is, the evidence discloses he has been able to pay such expenses as his legal bills. Most importantly, the employer submitted that the Board did not hear any evidence of why he should be trusted by the employer, the public, the inmates or the other CO’s. All we have is his assertion. Trust and integrity are vital to this job and he has exhibited neither.

The union began its submissions by admitting that there can be absolutely no doubt that the union and Mr. Collin recognize that his actions since February 2, 2001 and thereafter constitute extremely grave misconduct. This was a marked departure from the tack taken by the union in testing the employer’s case. The union then went on to submit that there was no threat made against Dewit nor an attempt by Collin to obtain the videotape from Gowher. At this stage, the union did concede that his request to view the tape was consciousness of guilt. It conceded that not calling for medical assistance was wrong, as was Mr. Collin’s perjury. Nonetheless, Mr. Collin should be reinstated because his behaviour was not as bad as the employer made out and the grievor has expressed remorse, contrition and acknowledgement of wrongdoing.

In support of its first position, the union reviewed the grounds for dismissal set out in the letter of November 5, 2001 and said that by and large they had not been made out. The union also submitted that the grievor received harsher treatment than other employees, such as Blundell, Dewit and Dewar. It said that the character witnesses provided evidence of their direct experience with Mr. Collin and their willingness to work with him again.

The employer filed written reply submissions dealing with the points raised by the union, which are filed as part of the record.

The parties filed and referred to a large number of cases come of which are referred to below.

Reasons for Decision

As set out above, the employer brought a pre-hearing application to dismiss this grievance without a hearing. That application was dismissed. That application was largely predicated on the submission that the Criminal Court had taken into account the fact that the grievors had lost their jobs when it fashioned the penalties imposed upon them. That is evident from the excerpts of the Court’s Judgments related to Cuthbert and Collin, also set out above. The Court closed its sentencing Judgment of April 29, 2004 with the following paragraph:

Before concluding, I would like to reiterate that I have only found that the principles of general deterrence and denunciation are satisfied by these sentences because the price already paid by all accused has been very high. Hopefully the combination of this suffering and the sentences will send a string message to all correctional officers that the public interest requires them to exercise their power temperately, in accordance with law and institutional policy. A DNA order with respect to each is mandatory. However, there will be no firearms prohibition ordered, given the absence of prior incidents of violence and the favourable factors found with respect to each accused.

Clearly, the Court was mindful of the fact that Mr. Collin had suffered from the loss of his job. Nonetheless, the application to dismiss the grievances without a hearing was denied because the union said there was evidence to mitigate the penalty. It took us a number of days to get to that evidence. Even still, in the union’s closing arguments it is said that the employer has not proven its grounds for discharge. For ease of reference they are reproduced again:

• On February 2, 2001 you used excessive force on Inmate Pearson.

• You obstructed a ministry investigation by trying to obtain a video tape recording from the hallway of 2C.

• You threatened CO Dewit by telling him to remain quiet about the incident of February 2, 2001.

• You failed to provide written reports on the fact that you had applied force on an inmate, as required by Ministry policy and procedures.

• You failed to provide care, custody and control as required of a correctional officer in that you deliberately sought out and harmed an inmate entrusted to the care of the Ministry.

• You failed to provide care, by not attempting to obtain medical assistance for inmate Pearson, who was obviously injured following the assault.

• You participated in behaviour that was premeditated, willful and deliberate and then made attempts to cover up your indiscretions.

In my view a comparison of these grounds with the findings of the court in paragraph 130 of the sentencing Judgment establishes them as being materially and substantially similar. It is no answer to these reasons for termination that they were not proven word for word. The allegations made in the September letter were brought to Mr. Collin’s attention and he was given a copy of the Investigator’s Report. On the advice of his defence counsel he said nothing, as was his right. Relying on the investigation, Mr. Hamblin drew conclusions that he believed were a foundation for discharging Mr. Collin.

The first reason for discharge was that Mr. Collin had used excessive force on inmate Pearson. The Court found that Mr. Collin was a party participant in a vicious assault against Pearson. He aided and abetted that assault. He did not stand idly by. In my view the allegation that he “used excessive force” encompasses being integrally involved with the group that did the deed. He cannot avoid his responsibilities as a participant by making the technical claim that he did not actually touch him.

Second, much was made in Mr. Hamblin’s cross-examination that Mr. Collin may have attempted to obstruct the investigation but had not done so. The heart of that ground for termination is recognized by the judge’s finding that he asked to view the tape, which was evidence of a guilty consciousness.

Third, the evidence establishes that Mr. Collin told Mr. Dewit to stay solid, which I find is understood in the workplace as a requirement to stick together. In the circumstances, I am satisfied that the implication was that if he did not, there would be consequences. That is a threat.

Fourth, Mr. Collin now concedes that it was a serious infraction not to have provided written reports.

On the fifth and sixth points, there can be no doubt of his failure to provide the required care, custody and control.

On the fifth and seventh points, it is not established by the evidence that the actions of Mr. Collin were premeditated. There is no doubt that Mr. Collin intended to go to Pearson’s cell; it is not clear that he went intending to cause harm, although that would be a reasonable outcome.

Based on the findings of the Court, it is my view that the employer’s grounds for discharging Mr. Collin are substantially and materially made out. Those grounds are just cause for his discharge. One need only read the Court’s description of the assault, largely at Cuthbert’s hands, to appreciate the severity of the assault. This so-called Code of Silence cannot be encouraged or permitted to stand in the way of the proper discharge of a correctional officer’s duties. Mr. Collin, by his actions and inactions, landed the blows as surely as those who engaged in the physical contact. Although the assault was an isolated incident in his career, his course of conduct thereafter is most disturbing. One can understand and accept his silence in the face of criminal charges. It was his right to maintain his silence. However, that is not what he did. He and the others concocted a story and he participated in misleading the Court. In the proceedings before this Board there was no admission of any responsibility until the eleventh hour. His deceptions and denials went on for years. The acceptance of responsibility and expression of remorse are integral to the re-establishment of the trust necessary in any employment relationship. In OPSEU (Adam) and Ministry of Community Safety and Correctional Services (2005), 2005 CanLII 94122 (ON GSB), 137 L.A.C. (4th) 111(Herlich) the importance of candor was set out as follows at page 129:

I have, however, clearly indicated that the grievor’s initial versions of events (in his occurrence report and at the start of the investigation interview) were less than entirely accurate or candid. But, as I have also concluded earlier, by the end of the investigation interview (some two months prior to the discharge and certainly well in advance of the allegation meeting), the grievor had provided a full and candid version of the events as they transpired and his role in them. It is for these reasons that I have concluded that the grievor’s lack of candour was neither as protracted nor as significant as the employer concluded.

This is also reflected upon in OPSEU (Pearson) and the Ministry of Community and Social Services (Dissanayake, June 8, 1989, 263(88) at page 15:

In assessing what is an appropriate penalty for the greivor’s conduct, on the negative side of the ledger we find that abuse of a patient, whatever the circumstances, is a serious offence. Also, the grievor fabricated a story about removing a sweater and stood by that story right up to the hearing. On the first day of hearing, counsel cross-examined the Employer witnesses about the possibility that the grievor may have been removing a sweater at the time he struck K. This suggests that the grievor decided to abandon the sweater story between the first and second days of hearing after it became apparent that the Board is unlikely to believe it. Even then, he continued to insist that the blows were accidental, an assertion we have found to be untrue. His refusal to admit that he struck K in a momentary loss of temper reduces the credit he would otherwise have received for the remorse he had shown immediately after the incident, which the witnesses agreed were sincere.

In this matter it is not just that Mr. Collin was not candid. His behaviour strikes at the heart of his duty as a corrections officer to the public, the inmates and his fellow corrections officers. His participation in this assault could not have been more contrary to his obligations.

The union’s evidence of rehabilitative potential rose no higher than Mr. Collin’s bare assertions that he would not permit such a thing to happen again. Those assertions rang hollow in view of his inordinate delay in purportedly clearing the air. His evidence before the Board was a continued denial of responsibility and a failure to fully accept the findings of the Court. His account of being shocked, in a state of disbelief and not having the guts to stop it do not accord with the Court’s decision that he actively aided and abetted the incident. He moved other prisoners around, he stopped to put on gloves, he told Blundell and Pearson “No one was here.” His behaviour, as found, is inconsistent with his evidence before this Board. As set out in the Motor Vehicle Case, supra, “It is one thing to accept responsibility, express remorse and point to rehabilitation. It is another thing to deny guilt…” in the face of the findings of the Court.

His evidence went on at some length about his leadership skills and wish to be a role-model. He demonstrated neither of those characteristics throughout all of the proceedings in which he has been involved. Even when he knew, according to his evidence here, that his behaviour at trial was wrong, he just went along with the group. Regrettably, it was not until he was alone before this Board that he was “brave” enough to tell the truth. In all of the circumstances I reject his expressions of remorse.

As to his character witnesses, it was evident that few of them knew of the details of his situation. What is most disturbing was the uniformity of their responses when they were told of those details. Whether they were CO’s or OM’s, it appears that it didn’t matter to them that Mr. Collin had participated in a vicious assault, attempted to cover up his responsibility, intimidated fellow employees and lied to the Court.

This Decision started out with the opening remarks of the Court’s Judgment of January 27, 2004 and I can do no better than echo Sparrow J.’s closing comments:

132 Although the Court’s job is to try the accused, and evidence has been called solely for that purpose, it is in my view important to underscore certain testimony. All correctional officers referred to their fear of being labelled a “rat”, or breaking the “code of silence” as reprisals could ensue – even being forced out of the institution. As a result, occurrence reports are often not filed, and guards who break the rules are not reported to management. According to Peck, rules are broken daily, which is necessary in order to get the job done. This aspect of the TEDC culture, it appears, condones or even encourages certain individuals in taking on disciplinary functions in breach of the rules, thereby increasing the chances that incidents such as this one will arise.

The grievance is dismissed.