GSB#2007-2778, 2008-1078, 2008-1079, 2008-1080, 2008-1089, 2008-2145, 2008-2977
UNION#2007-0135-0025, 2008-0135-0018, 2008-0135-0019, 2008-0135-0020, 2008-0135-0022,
2008-0135-0026, 2008-0135-0027
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Lavallee)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
M.V. Watters
Vice-Chair
FOR THE UNION
Ed Holmes Ryder Wright Blair & Holmes LLP Barristers & Solicitors
FOR THE EMPLOYER
Carol Ann Witt Ministry of Government Services Counsel
HEARING
March 19, October 5, October 6, November 16, December 7, 2009; January 5, January 6, January 25, January 26, March 22, March 23, March 29, March 30, April 13, April 14, May 11, May 12, June 8, June 9, September 15, 2010; January 6, January 17, March 21, 2011.
DECISION
[ 1 ] The grievor, Mr. Jamie Lavallee, was terminated from his employment as an unclassified Correctional Officer (CO) at the Windsor Jail by letter of December 1, 2008 signed by Mr. David Marsh, the Superintendent of the facility. The grounds for the termination are set out therein, as follows:
“1. You engaged in using excessive force against inmate P.S. on May 17, 2008.
On May 17, 2008, you submitted an inaccurate occurrence report.
On May 17, 2008, you acted in a manner that violates the Statement of Ethical Principles specifically ‘To perform our duties on behalf of the citizens and Government of Ontario with honesty and integrity’.”
[ 2 ] The grievor contested his termination by filing a grievance on December 1, 2008. Five (5) earlier grievances were also filed by the grievor following his suspension on May 17, 2008, the day of the incident. The bulk of the evidence presented in this proceeding focused on the termination. It is fair to say that of all the issues raised in the six (6) grievances before this Board, the appropriateness of the grievor’s termination is the most important. As a consequence, I will initially address that issue and will defer consideration of the other matters until later in this Decision.
[ 3 ] This proceeding took twenty-three (23) days to complete over a period of two (2) years. A total of seventeen (17) witnesses were called to present evidence for the respective parties. The extent of the evidence, both oral and documentary, was substantial. Final submissions, including the review of relevant authorities, took two (2) days to complete. I do not intend to reference all of the evidence and argument in this Decision. It has all, however, been fully considered and assessed during the course of my deliberations on the issues raised. I also note that a view was taken of the Windsor Jail at the outset of this case.
[ 4 ] The following witnesses were called to give evidence:
FOR THE EMPLOYER
(i) Mr. Steven McNair, who has served as an Inspector with the Correctional Investigation and Security Unit (CISU) since March, 2006. He conducted the investigation and prepared the Investigation Report material to this proceeding. Mr. McNair has worked in the Ontario Public Service since 1981. A significant portion of his prior experience was in the field of probation and parole;
(ii) Ms. Cathy Imeson, who has worked as a Registered Nurse at the Windsor Jail for some thirty-one (31) years. She attended on inmate P.S. following the incident and documented the observed injuries;
(iii) Mr. Greg Ireland, who has served as the Provincial Coordinator for the Employer’s Use of Force Programs since February, 2004. He was previously the Coordinator in respect of the Cell Extraction and Institutional Crisis Intervention Teams. Mr. Ireland, in his current role, prepared the materials used in basic training to teach new recruits about the appropriate use of force in an institutional setting. He also rewrote the Defensive Tactics Program used in both basic training and refresher training. The latter is provided to COs in the field every twenty-four (24) months. Mr. Ireland, additionally, administers the Defensive Tactics Instructor Program. In this regard, he trains, certifies, recertifies and monitors the associate instructors who provide training at every correctional institution. These instructors, whose present complement totals ninety-six (96), all report to Mr. Ireland. For purposes of this case only, the Union accepts that Mr. Ireland is an expert on the use of force;
(iv) Mr. William Heggie, who has served as an Acting Operational Manager (OM) for three (3) years. He previously worked as a CO for approximately six (6) years. Mr. Heggie worked the 9 a.m. to 5 p.m. shift on May 17, 2008 as the second in charge;
(v) Mr. William Mitchell, who has served as an OM since 2005. Prior to that, he was a CO for approximately ten (10) years. Mr. Mitchell was in charge of the 6 a.m. to 6 p.m. shift on the day of the incident. He assigned the grievor to the Security Hall post for that day;
(vi) Mr. Paul Kitchen, who has served as an Acting OM since 2007. Prior to that, he was a CO for approximately fifteen (15) years;
(vii) Ms. Carol Varney, who had served as an Acting OM for a period of four (4) years as of the date she first gave her evidence. She started as a CO in June, 1992;
(viii) Mr. Cletus Lewis, who has served as an OM since 2005. He was an Acting OM between 2003 and 2005, and prior to that was a CO at the Windsor Jail for approximately ten (10) years;
(ix) Mr. Marc Vallee, who has served as an OM since 1997. Prior to that, he worked as a CO. Mr. Vallee has held a number of administrative assignments while an OM. He is currently the Security Manager; and
(x) Mr. David Marsh who, as previously mentioned, is the Superintendent of the Windsor Jail. He has served in that capacity since June, 2006. Over the period of his thirty (30) year career in Corrections, Mr. Marsh has worked as a CO, an OM, and as a Deputy Superintendent. As noted, he signed the letter of termination dated December 1, 2008.
FOR THE UNION
(i) The grievor, Mr. Jamie Lavallee, was hired as an unclassified CO in February, 2002. He commenced employment at the Windsor Jail following six (6) weeks of training at the Bell Cairn Campus of the Correctional Services College in Hamilton, Ontario. Between 1996 and 2000, the grievor took courses at St. Clair College in the Law and Security and Police Foundation Programs;
(ii) Mr. Robert Bauman, who was an unclassified CO at the Windsor Jail at the time material to this proceeding. He commenced employment there in December, 2006. Mr. Bauman was working as the main officer on the second floor living units at the time of the incident on May 17, 2008;
(iii) Mr. Paul Petroni, who has served as a CO at the Windsor Jail since 1999. He has acted as a Union Steward for approximately six (6) years and was the Local President between October, 2007 and October, 2009. Mr. Petroni and Mr. Dominic Bragaglia acted as the grievor’s Union Representatives at an Allegation Meeting held on October 29, 2008. Mr. Marsh and Mr. Rudy Neufeld, the Deputy Superintendent, attended for management;
(iv) Mr. Robert McGhee, who has worked as a CO at the Windsor Jail for ten (10) years. He is part of the classified complement. Mr. McGhee was working as a second floor assistant on the day of the incident;
(v) Mr. Matthew Martinho, who worked as an unclassified CO at the Windsor Jail between May and July, 2008. On the day of the incident, he was assigned to duties on the first floor of the facility;
(vi) Mr. Brian Chauvin, a classified CO who has worked at the Windsor Jail since 1982. On the day of the incident, he was assigned as the Assist Officer on the third floor living units. Mr. Chauvin serves as a Union Representative at the Windsor Jail. He also is the Chairperson of the Provincial Health and Safety and Systemic Change Committees;
and
(vii) Mr. Eren McArter, who has been employed as a CO at the Windsor Jail since late 2001. He is part of the classified complement. Mr. McArter was assigned to the A. and D. Unit on the first floor at the time of the incident.
[ 5 ] Inmate P.S. was not called as a witness to testify in this proceeding. The witnesses for both parties, however, were in general agreement that this inmate, who possessed a lengthy record, was a violent and dangerous offender. At the time of the incident involving the grievor, he was awaiting trial on charges of attempted murder and assault with a weapon. Evidence was presented by CO Kitchen of two (2) prior incidents in which inmate P.S. physically assaulted other COs, one being CO Petroni, at the Windsor Jail. Additionally, his Client Profile discloses that he had assaulted or threatened staff at the Sarnia Jail in March, 2008. Witnesses described this inmate as being manipulative, obnoxious, loud, rude, arrogant, volatile and prone to engage in physical and verbal abuse. He was also considered to have above average intelligence in comparison to the general inmate population. I accept the view expressed by several of the witnesses to the effect the COs would need to be careful, alert and more vigilant when dealing with inmate P.S.
[ 6 ] The limits placed on a CO’s use of force against an inmate are set out in Regulation 778 of the Ministry of Correctional Services Act. Section 7 thereof reads, in part:
- (1) No employee shall use force against an inmate unless force is required in order to,
a. enforce discipline and maintain order within the institution;
b. defend the employee or another employee or inmate from assault;
c. control a rebellious or disturbed inmate; or
d. conduct a search.
(2) When an employee uses force against an inmate, the amount of force used shall be reasonable and not excessive having regard to the nature of the threat posed by the inmate and all other circumstances of the case.
[ 7 ] The above-cited provisions are replicated in the Adult Institutions Policy and Procedures Manual in the section relating to Security-Use of Force. That section also contains the following provisions:
“No employee shall use any method of force or restraint techniques that is in violation of Correctional Services policy.
Force shall only be used as a defensive or control measure when absolutely necessary. It is not intended, and shall never be used, as a means of punishment.”
[ 8 ] The Standing Orders of the Windsor Jail also reference the limitations on the use of force established by Regulation 778. Additionally, they provide the following instruction and guidance to correctional staff:
“When staff are appointed to the Ministry of Solicitor General and Correctional Services as a Correctional Officer or institution employee, the Criminal Code of Canada designates them as Peace Officers while on duty. To enable them to function as Correctional employees, the Criminal Code empowers them to use force in the execution of their duties. The law equally holds them criminally responsible for any excessive or improper use of this authority.
In the event that any evidence exists that excessive or improper force on an inmate has been used, the matter will be dealt with by the Ministry initiating internal discipline or dismissal proceedings and/or by charges being brought under the Criminal Code. Staff should be aware that Section 26 of the Criminal Code states, ‘Everyone who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess’.
If a situation arises where it is necessary for an employee to use force s/he shall use no more force than is necessary to restrain the inmate……………………………………….”
[ 9 ] The Standing Orders further contain a Statement of Ethical Principles, the material part of which read:
“As employees of the Correctional Services Division, we have a responsibility to protect the public by providing custodial and community supervision and rehabilitative services to those referred by the judiciary and other legislative authorities. To meet this goal requires a commitment to ethical behavior and a high caliber of professional conduct. Accordingly, we are committed to the following principles:
To perform our duties on behalf of the citizens and Government of Ontario with honesty and integrity.
To fulfill our duties in a diligent, competent and courteous manner.
To respect the civil, legal and human rights of those under our care and supervision.
[ 10 ] Mr. Ireland testified, in considerable detail, about the instruction the grievor would have received during his six (6) weeks of Basic Training at Bell Cairn in 2002. He stated that recruits are taught that the criteria set out in Regulation 778 must be present before a CO may use force against an inmate, and that any force employed must be reasonable, authorized, justified and not excessive. Additionally, they are instructed that their role is defensive; that a peaceful resolution must first be sought; and that force is only to be used as a last resort. Mr. Ireland advised that the Use of Force Management Model is used as a teaching tool to enable the recruits to better assess how they should respond to a variety of verbal and physical confrontations with inmates. He also referenced two (2) hand-outs given to recruits during the 2002 training. The hand-out entitled ‘Self Defense’ contains the following statement:
“…..You do not act out of hostility; you act out of duty. And you offer every opportunity to the offender to stop resisting. Any act of aggression or hostility is initiated by the offender. The officer reacts in a defensive manner, guided by legality, and using only reasonable force to control the offender.”
Mr. Ireland noted that these hand-outs were included in a binder that recruits were entitled to keep if they were successful in the training program.
[ 11 ] Mr. Marsh testified that COs are able to access, and print off, Ministry policies by way of the intranet at the Windsor Jail. He also advised that COs get a copy of the facility’s Standing Orders on the commencement of their employment. A copy of same was issued to the grievor on February 25, 2002. Mr. Marsh stated that the Standing Orders can also be accessed through computers at the Windsor Jail. Lastly, he noted that the grievor signed an Employee Acknowledgement and Declaration Form dated September 17, 2004 to the effect he had read and familiarized himself with the Ontario Human Rights Code (Preamble), the Statement of Ethical Principles and the Workplace Discrimination and Harassment Prevention Operating Policy (WDHP), and that he undertook to conduct his employment duties in a manner consistent with same.
[ 12 ] In his cross-examination, the grievor agreed with the following:
i. Ministry policy and procedures were referenced during his period of basic training at Bell Cairn and that they were subsequently accessible through the intranet at the Windsor Jail;
ii. He was aware of the requirement in the Use of Force Policy that any force used must be reasonable and not excessive, and that it must only be used as a defensive or control measure when absolutely necessary. The grievor accepted the statement contained therein that force is not intended, and is never to be used, as a means of punishment. He acknowledged that physical force is only to be used when there is an immediate threat to personal safety or the security of the institution or community, and when there is no reasonable alternative available to ensure a safe environment. In this regard, the grievor agreed that any force used must be proportionate to the threat posed or the harm to be avoided. He accepted the suggestion that these requirements are important in the context of an institutional setting, such as the Windsor Jail; and
iii. He was aware of the Standing Orders of the Windsor Jail and specifically those relating to the use of force and the Statement of Ethical Principles. The grievor testified that the content of these Orders are consistent with what he was taught during his basic training. In this regard, he advised that he was familiar with The Use of Force Management Model and the hand-outs relating self defence mentioned above. The grievor accepted that only the minimum amount of force required to control a situation is to be used. He further agreed that, in the vast majority of instances, voice, demeanour and command of the situation will do more to control the inmate and the situation than dependence physical techniques or methods.
[ 13 ] On the evidence presented, I am satisfied that the grievor was fully aware of the limitations set out in Regulation 778, the Adult Institutions Policy and Procedures Manual, and the Standing Orders of the Windsor Jail regarding a CO’s use of force against an inmate. I will consider the area of defensive tactics and distractionary techniques, and the grievor’s understanding of same, later in this Decision.
[ 14 ] By way of an overview, the incident which occurred on May 17, 2008 may be broken down into three (3) phases or segments. The first phase occurred in close proximity to the door to the Inmate Visit Room. That door opens into a somewhat narrow hallway connecting the Security Hallway to the Resource Room (also referred to as the Quiet Room). The parties generally referred to the area in question as the bulkhead. The initial interaction occurred shortly after the grievor asked inmate P.S. and another inmate S.S. to exit the Inmate Visit Room and return with him to their units. The second phase, involving a physical altercation between the grievor and inmate P.S., took place part way down the Security Hall towards the entrance way to the various units. During this exchange, both the grievor and inmate P.S. were standing. The third phase occurred at a location close to both the door separating the Security Hall from the Sallyport, adjacent to the Main Entrance Control area, and the aforementioned bulkhead. By this time, inmate P.S. had been taken to the ground by several COs. He was, however, offering resistance to being handcuffed. The grievor acknowledged that, at this juncture, he delivered a distractive strike to the head area of the inmate while kneeling next to the latter.
[ 15 ] The events comprising the incident, which are described in greater detail below, were captured by two (2) cameras, these being cameras #1 and #7. Camera #1 was positioned towards the end of the Security Hall and recorded part of the first phase and substantially all of the second and third phases of the incident. Camera #7 was positioned close to the bulkhead area and recorded the grievor’s actions and movement around the door to the Inmate Visit Room and in the hallway leading to the Resource Room. The video recordings from these cameras were filed as exhibits in this proceeding and were viewed on numerous occasions as the hearing progressed. Additionally, a series of still photographs, produced from both videos, are contained in the Investigation Report. A set of larger photographs produced from the Camera #1 video was also filed in evidence. I note that the Investigation Report does not reference, or provide any indication of, what might have been captured on the day of the incident by Camera #2 in the Sallyport and Camera #6 in the Inmate Visit Room. I was not provided with any recordings from these latter two (2) cameras made on the day of the incident.
[ 16 ] I have elected not to provide a lot of detail about the interior design of the Windsor Jail and the position of the various cameras in order not to compromise the security of the facility.
[ 17 ] The grievor was assigned to work the Security Hall on the 7:00 a.m. to 7:00 p.m. shift on May 17, 2008. One (1) of his responsibilities was to assist with inmate visits. This entailed escorting inmates back to their living units following the visit. At approximately 10:29 a.m. the grievor was in the Staff Lunch Room with CO Davenport on break. At that point, CO McGuire entered the room and stated that the inmates in the Inmate Visit Room wanted out, as they were banging on the door. The inmates in that room were inmates P.S. and S.S. The grievor testified that he has known inmate P.S. since he started at the Windsor Jail in 2002. It is clear that his assessment of this individual was virtually identical to that of the other witnesses, as previously described above. In his words, inmate P.S. was “an inmate you have to watch yourself for”.
[ 18 ] The grievor exited the Staff Lunch Room and proceeded to the front of the Inmate Visit Room door. Once there, he called to the Control Room on his portable radio for the door to be opened electronically. Once it opened, inmate P.S. exited the Inmate Visit Room and started to walk away, at which point the grievor asked him to “hold on for a minute”. The grievor recalled that inmate P.S. complied with the direction and returned to the area under the bulkhead between the Security Hall and the Inmate Visit Room door. The grievor then asked inmate S.S. to exit from the Visit Room. It was his evidence that this inmate replied that his visit was not finished. In response, the grievor informed inmate S.S. that he had to come out of the room, as it was required for other visits. The grievor testified that visits generally last for a minimum of twenty (20) minutes and that inmate S.S.’s visit had been on-going for about ninety (90) minutes.
[ 19 ] The grievor stated that, during the above exchange with inmate S.S., inmate P.S. was “very close to him” and that, in respect of inmate S.S. he said, “Come on Jamie, let him stay, he didn’t ask to come out”. It was the grievor’s evidence that he tried to ignore inmate P.S., and that he repeated the request to the other inmate to exit from the Inmate Visit Room. The grievor recalled that, at that juncture, inmate P.S. said, “Come on Jamie, don’t be such a hard ass”. The grievor then reiterated that the visits, which had both lasted for ninety (90) minutes, were finished and that he did not have to further explain himself. He testified that inmate P.S. then responded by saying, “Fuck off Jamie, don’t be such a dick”. The grievor stated that he then cautioned inmate P.S. on his attitude and told him that he did not appreciate the latter’s remarks. He recalled that inmate P.S. was laughing at him during this exchange. The grievor then proceeded to ask inmate P.S. if he wanted to receive a misconduct for his behavior. At this point, inmate S.S. was still in the Inmate Visit Room with the door open.
[ 20 ] The grievor testified that inmate P.S. was “bouncing in and out” and “rocking back and forth” under the bulkhead, and that the inmate was very close to both himself and the door to the Inmate Visit Room. It was his evidence that he used his right hand to direct inmate P.S. towards the Security Hall. The grievor asserted that this action was “more of a direction”, rather than a push. He acknowledged that his hand did come into contact with the left side of the inmate’s chest or shoulder area. The grievor described the contact as “a touch” and as “a slow movement”. He noted that the inmate initially appeared to comply with the direction to move back.
[ 21 ] While the sequence of events, as described by the grievor, was not entirely clear, he appeared to suggest that inmate P.S. continued to laugh at him. The grievor, as a consequence, again threatened to impose a misconduct. It was his evidence that the inmate stated, “Who do you think you are talking to” and “Fuck off, do I have to get the piss out”. At that point, the grievor asked him to repeat what he had just said. The grievor recalled that inmate P.S. replied, “You heard me goof, do I have to get the piss out”. These statements referenced an incident in April, 2008, of which more will be said below, in which another inmate threw a cup of urine into the grievor’s face. It was the substance of the grievor’s evidence that inmate P.S. stopped laughing and smiling and that his demeanour became more serious. He formed the impression that inmate P.S. was becoming more aggressive, challenging and threatening.
[ 22 ] The grievor acknowledged that inmate P.S. did not then have the capability of throwing urine on him. He stated that he was, nevertheless, concerned by his comments, their tone, his denial of authority and the fact that a threat was made. The grievor also took into account his prior encounters with inmate P.S. and the nature of the charges he was facing. It was the grievor’s evidence that he considered the situation to be serious and that he had his guard up even more. The grievor testified that inmate P.S. continued to rock back and forth near the bulkhead and that he closed his fist close to his thigh or stomach area. The grievor stated that he formed the impression the inmate was about to move forward and assault him.
[ 23 ] At this point, the grievor elected to close the door to the Inmate Visit Room, with inmate S.S. still inside. He stated that he then ordered inmate P.S. to back up and put his hands on the wall. It was the grievor’s evidence that after shutting the door, he observed that the inmate was not obeying his order. As a consequence, he took a step forward and attempted to deliver “a right open back hand distraction” to inmate P.S.’s nose. The grievor testified that this attempted action did not make contact. He believed that the inmate had backed up in anticipation of the movement. By way of explanation for his action, the grievor stated that he had no exit point behind him and, as a consequence, had to create space in front. I note that this second movement towards inmate P.S. was not referenced in the grievor’s Occurrence Report.
[ 24 ] The grievor testified that he then moved forward and again ordered inmate P.S. to back up and put his hands on the wall. He said that, instead of complying, the inmate took a step towards him and swung his left hand at him. The grievor stated that this was followed by a swing from the inmate’s right hand. He recalled that, as the inmate was stepping towards him, he pushed the inmate on the chest or shoulder area with two (2) open hands and that the latter responded by stating, “I’m going to knock your fucking head off”. The grievor then proceeded to back up past the door to the Inmate Visit Room and hit the emergency alarm button on the wall. He observed that inmate P.S. started to turn and walk away down the Security Hall in the direction of the living units.
[ 25 ] The grievor acknowledged that he was carrying a working radio with him during this phase of the incident and that he was aware CO Davenport and CO McGuire were close by in the Staff Lunch Room. In cross-examination, he stated that he did not have an opportunity to either use the radio to alert an OM about what was occurring with inmate P.S. or to call out for the above-mentioned COs for assistance. It was the thrust of his evidence that he was trying to focus on the inmate and did not want to be distracted by other things.
[ 26 ] The grievor testified that after hitting the emergency alarm button, he moved towards the Security Hall and ordered inmate P.S. to position himself against the wall. As he came around the bulkhead and into the Security Hall, he observed that the inmate was not complying with the direction and was, in fact, walking away from him towards the back of the facility. The grievor testified that he knew he then had to take “physical control” of inmate P.S. and that he could not let him continue to walk away on his own. It was the grievor’s evidence that he wanted to prevent the inmate from accessing other parts of the Jail and to eliminate the potential for his contact with others, both COs and inmates. The grievor stated that when inmate P.S. saw him enter the Security Hall, he turned around, made a fist with his right hand, brought his hands up and positioned himself “in a bit of a fighting stance”. The grievor advised that he then stepped towards the inmate in order to grab ahold of him by the arms and shoulders. He indicated that this effort proved unsuccessful and that he was unable to take control of inmate P.S. The grievor recalled that the inmate was moving back and forth at this juncture, and that the inmate swung at him on one (1) or two (2) occasions while doing so. He further stated that he continued to try to reach the inmate, while at the same time attempting to protect himself. At or about this point in the incident, CO Davenport entered the Security Hall from the Staff Lunch Room and shouted out “that’s enough” to inmate P.S. Other COs then entered the Security Hall in response to the emergency alarm, or “Code Blue” as it was referred to during the course of the hearing.
[ 27 ] In cross-examination, it was suggested to the grievor that he could simply have escorted inmate P.S. back to his unit, when he observed the latter walking away from him in that direction. The grievor, in response, disputed that this was a viable option given that he and the inmate had just engaged in a physical encounter during which the inmate had disobeyed orders and been abusive.
[ 28 ] COs McGuire and McGhee were the second and third COs to arrive in the Security Hall while the grievor was physically engaged with inmate P.S. The former entered the hallway from the Staff Lunch Room, the latter from the Resource Room. During the physical encounter with the inmate, the grievor got swung around and fell backwards to the ground. He observed that COs McGhee and McGuire then had inmate P.S. positioned against the wall near the door to the Sallyport. As the grievor was getting up, he saw these two (2) COs and the inmate go to the floor. It was his recollection that the inmate was on top of CO McGhee’s legs and that the latter was propping himself up on his elbow. The grievor described CO McGhee’s position as one of “disadvantage”. He noted that, at that point, only CO McGuire was actively involved in attempting to take control of the inmate.
[ 29 ] Once the grievor got up off the floor, he entered the fray in an effort to assist in restraining inmate P.S. The grievor testified that, initially, he tried to take hold of the inmate’s left arm in order to pull him off of CO McGhee. He advised that his attempts proved unsuccessful, as he was unable to secure his grip. The grievor stated that during this involvement, the radio microphone cord attached to his lapel started to swing. At this juncture, the grievor also noticed that other COs were starting to arrive at the scene. In his words, the immediate area around where the incident was occurring got “a bit congested”. A review of the videotape and still photographs indicates that COs Martinho and Chauvin were the next to arrive.
[ 30 ] At about this time, the grievor observed that inmate P.S. was starting to move off of CO McGhee’s leg. He then noticed that the inmate had his left arm under his chest with his hands positioned near his neck. It was the grievor’s evidence that inmate P.S. ignored several direct orders from COs McGhee, Chauvin and himself to stop resisting and give up his arms so that he could be handcuffed. The grievor then elected to employ a “distractive strike”. He described this action as follows: “I then delivered an open hand, right hand distractive strike to the top of inmate P.S.’s left side between the side and top of his head with the meat of my hand”. The grievor further described the effort as “a straight open hand strike to the top of his head….”. The aforementioned strike was made while the grievor was kneeling down. According to the grievor, the strike was accompanied by an instruction for the inmate “to give up his hands”. Shortly after the strike, the grievor saw that another CO was able to get ahold of the inmate’s arm. Once the arm was pulled from beneath the body, the inmate was able to be handcuffed. From the grievor’s perspective, the technique resorted to had worked, as it distracted the inmate and allowed other COs to apply the handcuffs.
[ 31 ] Once inmate P.S. was handcuffed, he was brought to his feet. At that point, the grievor stood up and backed away. Acting OM Heggie then gave the grievor his radio, which had fallen off during the incident, and instructed him to leave the area. The grievor thereupon left the Security Hall and proceeded to a range on the second floor of the Windsor Jail. Inmate P.S. was then escorted to a Segregation cell on the first floor. The grievor returned to the Security Hall within a short period of time and was present to hear OM Mitchell direct everyone involved in the incident to prepare an Occurrence Report.
[ 32 ] The grievor testified that the objective of his distractive strike during the first phase of the incident was to distract inmate P.S. so as to create an opportunity to take control of him, either by turning him to the wall or by taking him to the floor. As previously noted, this attempt proved unsuccessful. There were no witnesses, apart from the grievor, who personally observed what occurred in this initial phase.
[ 33 ] The grievor further testified that the distractive strike used during the third phase of the incident was to distract inmate P.S. long enough to get him off of CO McGhee and to gain control of his left arm so that it could be handcuffed. He acknowledged that, at the time, he had no knowledge if the inmate’s other arm had been handcuffed or otherwise controlled. The grievor described the distractive strike as a “light physical stimulus” and asserted that it was not meant to be a harmful technique. It was the grievor’s evidence that he had received no training, either verbal or in written form, to indicate that the action he took while inmate P.S. was on the floor was prohibited. I note, in this regard, that the grievor received training in self defence and defensive tactics during his basic training at Bell Cairn in 2002, and that this was supplemented by refresher training, as recently as April, 2008.
[ 34 ] Acting OM Heggie, OM Mitchell, and COs McGhee, Bauman, Chauvin, Martinho and McArter were all in the Security Hall when the grievor delivered the distractive strike to the facial area of inmate P.S. while the latter was on the ground. The evidence as to their observations, and their assessment as to the propriety of what occurred, is summarized below.
[ 35 ] Acting OM Heggie and OM Mitchell were in the OM Office on the 3rd floor of the Windsor Jail when the alarm (the “Code Blue”) sounded. Both then proceeded to the Security Hall. On the evidence, it appears that Acting OM Heggie led the way. Once in the Security Hall, Acting OM Heggie observed that inmate P.S. was on the ground and that several COs were trying to restrain him. He did not actually see the distractive strike employed by the grievor. Shortly thereafter, Acting OM Heggie viewed the video record of the entire incident. In cross-examination, he expressed the opinion that the only thing “out of line” with Ministry policy was the apparent punch thrown by the grievor in the area of the bulkhead during the first phase of the incident. Acting OM Heggie stated that there was nothing about the take down, or the securing and handcuffing of the inmate while on the floor, that gave him any concern. He testified that he was not aware of any training document or written policy to the effect that a distractive strike cannot be used to facilitate the handcuffing of an uncooperative inmate, such as occurred in this instance. Indeed, Acting OM Heggie indicated that he would be surprised to learn that it was inappropriate to hit an inmate in the face with an open hand for purposes of securing them.
[ 36 ] OM Mitchell testified that when he got to the Security Hall, he saw several COs around inmate P.S. who was on the floor. The inmate’s head was positioned towards the Inmate Visit Room with his feet towards the Staff Lunch Room. The right side of the inmate’s face was towards the floor and the left side was facing upwards. OM Mitchell noticed that the COs were trying to handcuff the inmate, and that the grievor was in a crouched position. It was his evidence that he observed the grievor make a striking motion with his hand and arm towards the inmate’s facial and head area. OM Mitchell did not see the resulting physical contact, but thought that it would have been on the left side given the inmate’s position on the floor. He also did not see if the grievor’s hand was open or closed when he delivered the strike in question. OM Mitchell recalled that inmate P.S. became “more vocal” following the strike and yelled something like “this is fucking bullshit”. He took this as a reflection of the inmate’s annoyance at being struck while held down on the floor. OM Mitchell advised that inmate P.S. articulated this specific complaint while being escorted to the Segregation Unit immediately following the incident and again later once he was in the cell.
[ 37 ] OM Mitchell viewed the video record shortly after the incident and again during the course of giving his evidence. He noted that the grievor made the initial strike during the first phase of the incident and that it was the grievor, and not inmate P.S., who started the altercation. OM Mitchell also claimed that the grievor had an opportunity, while the inmate was walking away from the bulkhead towards the rear of the facility, to provide a verbal direction to the inmate. He emphasized that, instead, the grievor elected to respond aggressively, to the extent that CO Davenport tried to hold him back from the inmate.
[ 38 ] OM Mitchell agreed that inmate P.S. was resisting being handcuffed. It was his view, however, that he did not pose a threat to anyone. OM Mitchell testified that he has never delivered a distractive strike in similar circumstances nor has he seen others do it. From his perspective, the grievor’s action was more of a strike than a distractive strike, and was more aggressive than defensive in nature. It was the thrust of his evidence that there was no real need for a distractive strike on the inmate given that he was being held down by other COs at the time.
[ 39 ] CO McGhee testified that he was in the Resource Room at the time the Code Blue sounded. He was already in the process of going into the hallway, as he had heard loud voices coming from the area. CO McGhee stated, in this regard, that he had heard the words “do I have to get the piss out” on more than one (1) occasion. When CO McGhee arrived in the Security Hall, inmate P.S. and the grievor were involved in a physical altercation. At that juncture, he put his arms around the inmate, who at the time was facing away from him near the corner of the Sallyport door. CO McGhee advised that after grabbing inmate P.S. in “a bear hug”, he was able to use his weight to bring him to the ground. Both CO McGhee and the inmate fell backwards. The latter landed on CO McGhee’s legs and remained there for “most of the incident”. Once on the ground, he recalled that inmate P.S. ignored orders from several COs, including himself, to give up his hands to be handcuffed. CO McGhee further recalled that at one point, one (1) of the inmate’s wrists were cuffed. He was uncertain whether the inmate was resisting to having the second hand cuffed or whether it was just stuck and immobile under his body. CO McGhee testified that during this period, the inmate’s body was twitching or jerking back and forth. It was his evidence that CO Chauvin was able to secure the second hand with the handcuffs almost immediately after the distractive strike applied by the grievor. CO McGhee expressed the opinion that the aforementioned strike was of assistance in getting the inmate cuffed.
[ 40 ] CO McGhee observed the grievor deliver a distractive strike to inmate P.S.’s face while the latter was on the ground. While he witnessed the grievor’s arm movement in delivering the strike, he could not say if it was with an open or closed fist. CO McGhee testified that, in his judgment, the grievor’s resort to a distractionary strike was appropriate, and not excessive, in all of the circumstances. He stressed that inmate P.S. was being physically uncooperative at the time. In cross-examination, CO McGhee agreed that a CO cannot use force simply because they feel like it or are angry. Additionally, he accepted the suggestion that a CO cannot use as much force as he or she feels like using.
[ 41 ] CO Bauman was working as the Main Officer on the second floor when he first heard the Code Blue. When he arrived in the Security Hall, he observed that a number of COs were already there, and that several of them were on the ground struggling with the inmate. CO Bauman testified that inmate P.S.’s legs were “flailing” and that he was subsequently able to restrain the inmate’s right leg by putting his left foot on the former’s thigh. It was his evidence that a number of COs, including the grievor, gave a direction to the inmate to put his hands behind his back so that they could be cuffed. CO Bauman noted that inmate P.S. failed to comply with the requests. He then observed the grievor give the inmate “a facial distraction”. Following the distraction, the inmate gave his hands up to be cuffed.
[ 42 ] CO Bauman testified that the grievor was in a crouched position when he delivered the distractive strike. CO Bauman stated that he was then standing “right above the altercation”. It was his evidence that the grievor threw “a palm strike” with his right hand towards the inmate’s face. In response to a question from this Vice-Chair, he stated that the grievor’s palm was pushing towards the inmate’s face, “fingers pointing up”. CO Bauman was positive that an open hand was used. He did not see the distractive strike actually make contact with the inmate. CO Bauman presumed that such contact occurred as there was nothing between the grievor’s hand and the inmate’s head.
[ 43 ] CO Bauman stated that a distractive strike is used to redirect an inmate’s attention to allow the CO to gain control. From his perspective, the grievor’s action in this instance was appropriate, as it was necessary for purposes of gaining control over inmate P.S. CO Bauman asserted that such action was in accord with the training he received at Bell Cairn and in subsequent refresher sessions. More specifically, he testified that he had received no training, and was not aware of any written policy, to the effect that a distractive strike was prohibited in a situation such as occurred on May 17, 2008. Ultimately, CO Bauman was not troubled by his observation of the grievor’s distractive strike, as he believed that the use of force was then necessary.
[ 44 ] CO Chauvin was on his way to the third floor when he heard the Code Blue. When he arrived at the Security Hall, he observed that an inmate, who he did not immediately recognize, was on the floor and that several COs were trying to subdue him. CO Chauvin also witnessed several unsuccessful attempts to handcuff the inmate. CO Chauvin approached from the rear of the inmate and called out for someone to give him the handcuffs. He believed that they were provided to him by CO Bauman. It was his recollection that the inmate’s hands and arms were beneath his body and that the inmate was struggling to keep them there. After a few seconds of grappling with the inmate, and with some assistance from another CO, CO Chauvin was able to attach the handcuffs to one (1) of the inmate’s wrists. He was able, after some considerable effort, to subsequently handcuff the other hand. CO Chauvin testified that when he was securing the second hand, he recalled “a body motion, a release of tension, of submission”. Once the handcuffs were on, the inmate ceased his resistance, was brought up off the floor and then escorted to Segregation.
[ 45 ] During the above-described episode, CO Chauvin did not witness anyone strike the inmate. He testified, by way of explanation, that he was then completely focused on handcuffing the inmate and was not concentrating on the area of the inmate’s head. CO Chauvin also recalled that his view of the head area was obstructed by another CO who was sitting on the inmate’s upper torso.
[ 46 ] CO Chauvin testified there was nothing in his training to suggest that a distractive strike is prohibited when an inmate is down on the ground and other COs are trying to handcuff him. He stated that, in such a scenario, a CO may use as much force as is necessary to get care and control of the inmate. In his judgment, what the grievor did was both reasonable and appropriate. In cross-examination, CO Chauvin agreed that the extent of force used must be proportionate to the perceived threat posed by the inmate. He also acknowledged that force cannot be used simply because the CO involved is angry.
[ 47 ] CO Martinho was working in the Segregation Unit on the first floor of the facility when he heard the Code Blue. On hearing same, he immediately left for the Security Hall. Once he arrived there, CO Martinho observed “a lot of commotion” and several COs trying to restrain an inmate who was on the ground. CO Martinho assisted with holding down the inmate’s right leg while he was being handcuffed. It was his evidence that he did not witness anyone strike the inmate at any point during the Code Blue. This was the first Code experienced by CO Martinho.
[ 48 ] CO Martinho stated that a distractive strike must be open-handed and that it cannot be applied to an inmate with a closed fist. He believed that such a strike can be applied to whatever part of the body the CO deems most effective for purposes of gaining a position of advantage. CO Martinho did not recall being told in training that a distractive strike is prohibited when an inmate is down on the ground, as in this case, and surrounded by COs. He acknowledged that all of his training at Bell Cairn in respect of distractionary strikes was in the standing position. CO Martinho was unable to say whether such a strike was appropriate here, as the incident was already unfolding by the time of his arrival in the Security Hall. He agreed that any force applied to the inmate had to be reasonable and necessary. CO Martinho testified that he believed inmate P.S. did pose a threat to the safety of the COs involved in the incident. He further acknowledged, however, that there were enough staff at the scene to ensure that this inmate would ultimately be restrained.
[ 49 ] CO McArter was working in the A. and D. Unit on the first floor at the time of the Code Blue. After arriving in the Security Hall, he was not involved in restraining inmate P.S. CO McArter did, however, see “what appeared to be a strike or rapid movement delivered to the upper body area” of inmate P.S. by the grievor. He testified that he saw this out of the corner of his eye, and that given the presence of numerous COs and the inmate, all huddled together, it was hard for him to determine “if this was the case”. CO McArter did not see if the grievor’s hand was open or closed, nor did he see whether the movement described actually connected with the inmate. He did form the impression, however, that the grievor’s action “calmed the inmate to the point he could be handcuffed.”
[ 50 ] CO McArter stated that a distractive strike is intended “to distract an inmate from what they are doing, to stop non-compliance, or as a self defence measure to divert an inmate’s attention so that they can be restrained”. He indicated that he was not aware of anything prohibiting the use of such a strike when an inmate is down and other COs are trying to restrain him. CO McArter expressed the opinion that it is within the discretion of a CO as to whether to use a distractive strike to calm the situation down or to prevent it from escalating. In cross-examination, he agreed that force cannot be used against an inmate in all circumstances and that, when used, it must be reasonable and not excessive taking into account the nature of the incident.
[ 51 ] A number of other individuals, who were not present in the Security Hall during the incident of May 17, 2008, gave evidence relating to their experience in respect of the use of force. Their evidence is summarized below.
[ 52 ] Acting OM Kitchen estimated that he has attended at approximately one hundred and fifty (150) incidents involving the use of force during his career as a CO and an Acting OM. He believed that at least ten (10) of these were situations where an inmate was offering resistance to being handcuffed. Acting OM Kitchen testified that, in such a situation, his practice is as follows: he first asks the inmate to provide their hands to be cuffed; if the inmate refuses to comply, he elevates the direction to an order; if the inmate continues to resist, he threatens them with the imposition of a misconduct; and after proceeding unsuccessfully through these stages, he would normally call for assistance and then forcefully restrain the inmate. It was his experience that COs generally respond to this type of problem in a similar fashion.
[ 53 ] Acting OM Kitchen stated that a distractive strike is used as a means to distract an inmate so that a technique can be applied. In his experience, such strikes are seldom used at the Windsor Jail. He has never needed to resort to the use of a distractive strike. Acting OM Kitchen, during the course of his evidence, was asked to comment on a situation similar to that which occurred in this case; namely, where an inmate was taken to the floor by COs; five (5) COs were present, three (3) of whom were holding the inmate down; and the inmate was resisting a demand for his hands so that he could be cuffed. He replied that, in those circumstances, he has never delivered a distractive strike to the head or face of an inmate nor has be seen any other CO act in that manner.
[ 54 ] Acting OM Varney testified that she has attended at more than fifty (50) use of force incidents while in her current position, and a lot more than that in the period she was a CO. It was her evidence that she attempts to get an inmate’s attention through constant verbal direction if they are resisting being handcuffed. In the event that proves to be ineffective, it is her practice to summon other staff for assistance either by way of the radio or a Code Blue.
[ 55 ] Acting OM Varney stated that distractive strikes are only rarely used by correctional staff at the Windsor Jail. She indicated that such a technique could be used if an inmate was out of control and was a threat to staff or other persons. By way of example, Acting OM Varney referenced an incident which occurred in June, 2009 involving inmate S.H. The inmate, in that instance, was combative both with her and another male CO. Inmate S.H. grabbed the other CO by the throat while struggling with him on the floor and also tried to punch him in the face. The CO, in response, delivered three (3) distractive strikes to the bicep area of the inmate in an effort to get the latter to release his grip. The CO also reported to Acting OM Varney that he had tried to deliver a distractive strike to the inmate’s face. She did not know whether it was with an open or closed hand. It was Acting OM Varney’s recollection that the COs present during the incident were doing everything they could to gain control of the inmate. Ultimately, she used pepper spray in an effort to subdue him. The CO directly involved in the altercation with inmate S.H. had to go to the hospital following the incident for bloodwork and stitches.
[ 56 ] Acting OM Varney was asked to comment on the same situation that was presented to Acting OM Kitchen. In response, she stated that she has never delivered a distractive strike to the head or face of an inmate in those circumstances. Acting OM Varney added that she has never observed any other CO or Manager do so either. She suggested that other options would be available to de-escalate this type of incident.
[ 57 ] OM Lewis testified that he has handcuffed inmates, and has witnessed other COs do the same, hundreds of times. He stated that many of these were situations where the inmates did not want to be handcuffed. OM Lewis advised that, when confronted by a resistant inmate, his practice is as follows: he initially provides instruction to the inmate as to what he wants the inmate to do; the instruction may be repeated several times; the inmate will then be told that they will receive a misconduct if they fail to comply, and that force may then be used against them; and if the inmate still does not comply, he instructs the COs present to use whatever force is necessary to achieve compliance, including taking the inmate to the ground and, possibly wrestling with him to get the handcuffs on.
[ 58 ] OM Lewis stated that a distractive strike is employed when there is a threat of immediate danger to a CO or other staff. He advised that the technique is used to create time and opportunity for the CO to pursue some other approach or to call for help. OM Lewis testified that he has never delivered a distractive strike to the head or face of an inmate who is being held on the ground by several COs while offering resistance to being handcuffed. Additionally, he has never seen any other CO or OM resort to a distractive strike in those circumstances. When asked why he has not used a distractive strike in a situation similar to the one material to this case, OM Lewis replied it was because “it is not the right thing to do”. He suggested that with four (4) to five (5) other COs present, control of the inmate could be obtained and that the inmate, in these circumstances, would not pose a threat to anyone. Simply put, OM Lewis asserted that there would be no need for a distractive strike.
[ 59 ] In cross-examination, OM Lewis agreed with the following suggestions from counsel for the Union: the mere fact that a number of COs are involved in an incident does not necessarily mean the inmate is under control; an inmate can be non-compliant and out of control even though a number of COs are present; COs try to get handcuffs on an inmate as quickly as possible in order to control the inmate; and handcuffs secured to only one (1) hand can be used as a weapon by the inmate and COs consequently have to be alert not to let their guard down in that scenario. Lastly, OM Lewis was confronted with the evidence of other witnesses for the Employer to the effect there exists no written policy stating that a CO cannot use a distractive strike while trying to cuff and control an inmate who is on the ground. I recorded his response as, “No, that is excessive force”.
[ 60 ] OM Vallee testified that he has considerable experience in handcuffing inmates, including those who do not want to be cuffed. Additionally, he has observed other COs handcuff inmates. OM Vallee described his approach to an inmate resistant to being handcuffed, as follows: he repeats the direction given using tactical commands; he requests compliance and outlines the consequences of non-compliance, including the issuance of a misconduct; and continued non-compliance could result in a take-down of the inmate in order to handcuff them.
[ 61 ] OM Vallee advised that he has never delivered a distractive strike to the head of an inmate, as done by the grievor in this instance. He has, however, witnessed other COs and Managers resort to distractive strikes. By way of example, he referenced an incident which occurred in June, 1998 in the A. and D. Vehicle Sallyport between doors #2 and #3. When OM Vallee arrived on the scene, he observed that an inmate, who was chained to another inmate at the time, was biting a CO on the thigh or stomach area. He witnessed another CO kick the inmate twice on the right side in an effort to get the latter to release the bite. When that proved unsuccessful, the CO struck the inmate three (3) to four (4) times on the side of his face with the same purpose in mind. Following a lengthy struggle, the inmate was secured with handcuffs and leg irons.
[ 62 ] CO Petroni testified he was never told in training, or at any other time, that a CO cannot use a distractive strike when an inmate is in the process of being taken down by other COs. He stated that he is not aware of any policy which would prohibit a CO from engaging in such action. It was the thrust of his evidence that a distractive strike may be used, even if the inmate is down, as long as the inmate continues to struggle and be uncooperative. In cross-examination, CO Petroni acknowledged that if an inmate is on the ground and is surrounded by several COs, the advantage would generally be in favour of the COs. He stressed, however, that even in such a circumstance the inmate may remain uncompliant and the COs may not necessarily have effective control.
[ 63 ] Inspector McNair was informed by the Chief of CISU on May 17, 2008 that he would be investigating the incident which occurred at the Windsor Jail earlier that day. Inspector McNair was in contact with Superintendent Marsh on May 19th. His first actual attendance at the facility occurred on May 21st. Inspector McNair testified that, thereafter, the investigation was conducted in accordance with the Investigation Protocol for Investigations under the Ministry of Correctional Services Act. This specific investigation was either the first or second use of force investigation that Inspector McNair completed on his own. At the time he gave his evidence, he had been involved in eight (8) investigations relating to an allegation of excessive use of force. He had completed four (4) of these on his own and had assisted with the other four (4). Inspector McNair acknowledged that he is an employee of the Ministry of Community Safety and Correctional Services, this being the same Employer who terminated the grievor’s employment at the Windsor Jail.
[ 64 ] Inspector McNair, as part of his investigation, reviewed the Occurrence Reports of all of the COs and OMs who were present in the Security Hall during the incident on May 17, 2008. He also reviewed the related documentation prepared by the attending RN. Inspector McNair subsequently interviewed the following individuals: COs Davenport, McGhee, McGuire, Chauvin, Martinho, McArter, Huppert, and Bauman; OM Mitchell and Acting OM Heggie; RN Imeson; and inmates P.S. and S.S. The grievor was interviewed last. The interviews were conducted between May 21 and June 9, 2008. All of the interviews were audio recorded and a written Statement Summary was subsequently prepared in respect of each interview. Inspector McNair also reviewed the video recordings captured by cameras #1 and #7 and the series of still photographs produced therefrom. The Exhibit Register attached to the Investigation Report provides a more comprehensive outline of the documents relied on by this Inspector. The aforementioned report was completed on September 22, 2008.
[ 65 ] The relevant findings of Inspector McNair, as contained in the Investigation Report, were as follows:
“1. The investigation determined that CO Lavallee did not act in accordance with ministry policies and procedures when he advanced upon and struck at inmate P.S. with a closed fist in the security hallway of the WJ on May 17, 2008 at approximately 1030 hours. This single act was unreasonable and unnecessary and therefore an excessive use of force.
CO Lavallee’s explanation that he was inflicting a ‘distractive strike’ is not believable given the recorded images on the security video from camera #1 and supplementary images from camera #7.
- The investigation determined that CO Lavallee did not act in accordance with ministry policies and procedures when he struck inmate P.S. about the head when the inmate was on the floor in the security hallway in a semi-prone position while being subdued and restrained by several other COs.
CO Lavallee’s explanation that his radio cord was tangled around his arm and he was trying to free the cord from his arm, that his hand had lost grip of inmate P.S.’s arm when attempting to take hold in the restraint attempt and that he was delivering a ‘distractive strike’ with an open hand to inmate P.S.’s head area is not believable given the recorded images on the security video from camera #1 and the witness account of OM Mitchell.
- The investigation determined that during the use of force incident with inmate P.S., CO Lavallee employed techniques that are not consistent with ministry policy, procedures and training. The techniques employed by CO Lavallee are not regarded as defensive in nature but rather offensive in nature.
Summary
As Peace Officers, it is critical that COs understand their legal obligation and duty of care to the inmate and their need to justify and articulate the use of force by them or the force used by others in their presence. COs must also understand and ensure compliance with the spirit and intent of the law and corresponding policies and procedures that governs their professional conduct. It is imperative that COs act within lawful compliance if they are to maintain the public trust.
CO Lavallee’s actions against inmate P.S. with respect to this particular incident were unprofessional and not at all consistent with the legal parameters permitted in instances where force is justified. CO Lavallee exceeded those legal and statutory parameters and accordingly his actions against inmate P.S. can only be described as unnecessary and unreasonable. That he has chosen to maintain his original position and not accept responsibility for his poor judgment in this instance suggests CO Lavallee lacks the capacity to fully understand the legal obligations and responsibilities of a CO and Peace Officer.
(Supporting references omitted)
[ 66 ] Inspector McNair, as mentioned, reviewed the video record captured by cameras #1 and #7, as well as the still photographs produced therefrom, as part of his investigation. It was his evidence that after so doing, he could not accept the grievor’s account of the incident.
[ 67 ] Inspector McNair rejected the grievor’s assertion that he pushed inmate P.S. backwards in the chest area with an open hand during the initial phase of the incident. Rather, on the basis of his review, the grievor appeared to make a closed fist punch towards the inmate’s face. In Inspector McNair’s opinion, the grievor acted without provocation. He did not observe inmate P.S. advance towards the grievor “in a fighting stance with both fists in the air”, as alleged by the grievor. It was his assessment that the inmate’s hands went up “to fend off an unprovoked closed fist strike to the head”. Additionally, Inspector McNair stated that, in his judgment, the grievor did not appear to have been threatened by the inmate while they were both in the hallway close to the door to the Inmate Visit Room. It was the substance of his evidence that the grievor’s actions, during this phase of the incident, were more offensive than defensive.
[ 68 ] Inspector McNair acknowledged that he could not say with any certainty whether there was any physical contact from the closed fist strike made by the grievor. He agreed that the strike may not have connected with inmate P.S.’s face, if the latter had moved backwards as it was being delivered. I note, at this juncture, that the Employer does not take the position that the strike resulted in contact with the inmate. The Employer’s submission, rather, is that the act of swinging at the inmate, by itself, was contrary to Ministry policy and procedures regardless of whether there was any contact.
[ 69 ] On Inspector McNair’s analysis, the grievor was the aggressor in the Security Hall during the second phase of the incident. He noted that the grievor elected to initiate a physical altercation with inmate P.S. at a time when the latter was actually walking away from him towards the rear of the facility. On Inspector McNair’s review, the inmate only turned around towards the grievor in order to defend himself. It was his evidence that at no time, either before or after the sounding of the alarm, did he see the inmate advance on the grievor in a threatening or violent manner.
[ 70 ] As stated, the grievor acknowledged that he delivered a distractive strike to the left side of the top of inmate P.S.’s head during the final phase of the incident. Inspector McNair rejected the grievor’s assertion that there was only one (1) strike and that it was delivered straight towards the inmate with an uncocked arm. From his review of the video and photographic record, it appeared that the grievor’s arm moved back and forth three (3) times and that his shoulder was elevated, with elbow cocked, at the time he delivered the strikes. Inspector McNair acknowledged that he could not actually see from the video and photographs whether the strikes were delivered with a fist or open hand. It was his impression, however, that they were likely delivered with a closed fist. It is apparent that Inspector McNair preferred inmate P.S.’ s account of this phase of the incident with respect to both the number and nature of the strikes.
[ 71 ] Superintendent Marsh reviewed the Occurrence Reports of all of the COs and OMs who were involved or present at the incident, as well as the Audio Recorded Statement Summaries of their interviews with Inspector McNair. Additionally, he reviewed the video and photographic evidence relating to the incident. After so doing, Superintendent Marsh determined that the grievor acted inappropriately and used excessive force on May 17, 2008.
[ 72 ] Superintendent Marsh believed that the grievor tried to punch inmate P.S. in the facial area when in the bulkhead area during the first phase of their encounter. He did not view the action taken as a distractive strike. He also did not accept the grievor’s claim that he pushed the inmate backwards in the chest area with an open hand. In his judgment, the video record did not support such a claim.
[ 73 ] Superintendent Marsh accepted that inmate P.S. likely made the “do I have to get the piss out” comment. He noted, however, that the inmate did not then have the means to carry out the threat. Superintendent Marsh stated that the use of force is not justified to respond to a verbal threat which cannot be carried out. He maintained that the grievor would have known this given his earlier training on the Use of Force Management Model. It was his evidence that, under such model, the appropriate response to verbal resistance is a tactical communication in which the CO involved issues an order for compliance to the inmate. Superintendent Marsh testified that the situation here in question did not justify resort to a distractive strike.
[ 74 ] Superintendent Marsh stated that if inmate P.S. refused to comply with a direction to backup and put his hands on the wall, the grievor should then have reissued his order with the threat of a misconduct if the non-compliance continued. His further assessment was that, in the circumstances, the grievor had the ability to back up and hit the alarm button in order to summon other correctional staff to the area. The Superintendent reiterated that, from what he saw, the situation did not support the use of force.
[ 75 ] Superintendent Marsh observed that after hitting the emergency alarm, the grievor re-engaged with inmate P.S. in the Security Hall. In his opinion, this was an inappropriate response on the grievor’s part during this second phase of the incident.
[ 76 ] Lastly, Superintendent Marsh noted that the grievor delivered a strike to the facial area of inmate P.S. while the latter was on the ground and in the presence of several other COs. It was the gist of his evidence that no strike of any kind was called for in view of the fact these other COs had control, or could easily have obtained control, over the inmate. Superintendent Marsh suggested that Acting OM Heggie must have been “confused” when he testified that he would be surprised to learn that the distractive strike employed by the grievor, when the inmate was on the ground, was not permissible.
[ 77 ] Mr. Ireland advised that the Employer provides training to COs on distractionary techniques, rather than distractionary blows. He stated that such techniques are always open handed and are used “to separate the mind and body” in order to create time for the CO to have the opportunity to disengage, escape, or to perform some other option, such as a take-down, to establish control. Mr. Ireland testified that there has to be some physical contact between an inmate and a CO before the latter can employ a distractionary technique. It was his evidence that a CO would be entitled to use a distractionary technique if they were being punched, choked or grabbed by an inmate. He described distractionary techniques as defensive in nature and stated that an open-handed hit to the face would only be used as a last resort.
[ 78 ] Mr. Ireland further advised that COs are not trained to utilize a striking technique when an inmate is down on the ground and refuses to provide their hands to be cuffed. In his judgment, such an action on the part of a CO would be inconsistent with what is taught in both basic and refresher training. Mr. Ireland stated that if an inmate on the ground was resisting being handcuffed, and there were several other COs in the immediate area, the more appropriate response would be to pin the inmate down and then resort to “diffusion skills to try to talk the inmate’s hands out”. If that proved unsuccessful, the COs could physically pull the inmate’s arms out from under their body. Mr. Ireland was adamant that, in such a circumstance, a CO is not entitled to use a distractive strike or blow for purposes of securing an inmate’s hands. He added that there is no recognized or accepted technique which would permit a CO, or a member of a Cell Extraction Team or Institutional Crisis Intervention Team, to deliver an open-handed strike to the facial area of an inmate in this situation. Mr. Ireland acknowledged, in cross-examination, that there is no specific document which expressly prohibits a CO from using an open-handed distractionary technique while in the process of trying to restrain an inmate on the ground.
[ 79 ] Mr. Ireland was also provided with the opportunity to review the video record of the incident. With respect to the initial phase of the incident, he advised that the grievor’s action of directing his hand towards inmate P.S.’s face was not “a check”. He stated that a check is a technique used to stop an attack and to create a safe distance between the CO and the inmate. In his view, what the grievor did was not a check because his hand appeared to be closed; it was directed towards the inmate’s head, rather than his chest; and the inmate was some distance away from the grievor and was moving back, not forwards. Mr. Ireland testified that what he observed was also not consistent with a distractionary technique, as taught by the Employer. He reiterated that a distractionary technique is used when a CO is being assaulted. In this instance, he noted that inmate P.S.’s hands were at his side and that he was more than an arm’s length away from the grievor. Mr. Ireland also emphasized that the grievor used a closed, instead of an open, hand. In this regard, he advised that the Employer does not train COs on techniques involving a closed hand, as such techniques are intrusive; may result in a disproportionate injury to the inmate; and may have the unwanted effect of escalating the situation.
[ 80 ] Mr. Ireland also observed the following with respect to the initial phase of the incident:
i. Just prior to seeing the grievor’s hand come through the bulk head area, the inmate was smiling with his arms at the side. He noted that the inmate’s strong side was positioned forward and that, as a consequence, he would not be able to throw a firm right handed punch. Mr. Ireland described inmate P.S. as then being in a “neutral stance” and as “unprepared to fight at that point; and
ii. If inmate P.S. made the “shall I get the piss out” comment, he did not then have the ability to carry out the threat. In Mr. Ireland’s judgment, the grievor should have responded to any verbal abuse with a threat of a misconduct and a direction to the inmate to back off to the wall, or move down to the ground, and should then have closed the door to the Inmate Visit Room and either radioed for help or activated the emergency alarm. Mr. Ireland expressed the opinion that the situation, as presented, did not justify the use of any force. He, nevertheless, agreed that the grievor’s “antenna should have been way up” given that inmate P.S. was a problematic inmate and that the latter’s abusive comments were made in a confined area and at a time when he was relatively close to the grievor.
[ 81 ] Mr. Ireland’s views as to the propriety of what occurred during the third phase of the incident have been set out in paragraph [78] above. He repeated that a distractive strike in that scenario was not consistent with the training provided to the grievor, as such strikes are not to be applied to an inmate’s head and are not to be delivered while the inmate is on the ground.
[ 82 ] In cross-examination, Mr. Ireland agreed that COs, generally, have to exercise their judgment based on their perception of what is occurring in a given circumstance, and that they are often required to make “spur of the moment” decisions. He further accepted the suggestion that COs may sometimes perceive things incorrectly due to an improper assessment of the situation, and not because of any “malicious intent”. Mr. Ireland agreed that COs may be on a heightened alert when dealing with inmates, such as P.S., who have previously assaulted COs or Police Officers. Lastly, it was his evidence that COs may put themselves into greater jeopardy by either acting too soon or hesitating with their response.
[ 83 ] Section 7(3) of Regulation 778 imposes an obligation on a CO who uses force against an inmate to provide a report to the Superintendent in respect of same. The provision reads:
Where an employee uses force against an inmate, the employee shall file a written report with the Superintendent indicating the nature of the threat posed by the inmate and all other circumstances of the case.
This requirement is replicated in both the Standing Orders of the Windsor Jail and in the Adult Institutions Policy and Procedures Manual in the section relating to Security-Use of Force (November 2007). The Use of Force Procedural Checklist (February 2007), contained within this same section, states that, at a minimum, the Occurrence Report must include the following: an account of events leading up to the use of force; an accurate and detailed description of the incident; the reasons for employing force; a detailed description of the techniques used; the weapon used by the offender, if any; injuries received and medical treatment given; and a list of participants and witnesses to the incident.
[ 84 ] The Adult Institutions Policy and Procedures Manual also sets out requirements relating to the preparation of Occurrence Reports and Offender Incident Reports. The policy dated December 2007 states, in part:
“POLICY
Correctional Services recognizes the importance of ‘Occurrence Reports’ and ‘Offender Incident Reports’ for recording and disseminating information necessary for the preservation of institutional safety and security, the provision of timely interventions for inmates experiencing behaviour problems or personal difficulties, and for the enhancement of institutional operations…………………………………………………………………………………………………………………………
PROCEDURES
Employees are required to prepare accurate and complete ‘Occurrence Reports’ and ‘Offender Incident Reports’ to achieve the important objectives in the policy statement.
[ 85 ] An earlier policy dated October 2003 on the subject of Report Writing notes the following:
“All written reports must be thought of as legal documents. Anything contained in a report may be required at an investigation, inquiry, inquest or used as evidence in a court case. Reports that are provided to the crown may, under the discovery process, be released to the inmate’s attorney and subsequently could be read by or given to the inmate.
The policy lists the following seven (7) essential elements that must be included in any written report to ensure effective communication of information: when, where, what, who, how, why, and action taken. It further states that reports should be clear, correct, concise, complete and courteous.
[ 86 ] It is apparent from the grievor’s evidence that, on the basis of his training and experience, he was familiar with the above mentioned requirements relating to report writing. I am satisfied that he fully understood the need to be factual, accurate and comprehensive when preparing a written report about an incident involving the use of force against an inmate.
[ 87 ] The grievor’s Occurrence Report dated May 17, 2008 reads:
On Saturday, 17 May 2008 about 10:30 hours at the Windsor Jail, I was assigned to duties of security hall. At this time inmates, P.S…. and S.S….. were in the visit room. Inmate P.S. was banging on the door wanting to come out of the visit room. Once I had the visit room door open, inmate P.S. came out and I asked him to wait a minute and told inmate S.S. to come out as well. He said NO, visits aren’t done yet. I told them that they both had 1.5 hours in there and that it was time to come out. Inmate P.S. said to S.S., this is Jamie being a tuff guy, then said to me just let him stay don’t be such a dick. I told them that they are entitled to 20 minutes and they had well over that.
At this time inmate P.S. spoke in a loud voice and said, “Fuck off Jamie, don’t be such a hard ass”. I shut the visit door and I told inmate P.S. to watch how he spoke to me and that S.S.’s visits were none of his business. In a loud voice inmate P.S. said to me, “Do I have to get the piss out?” I asked him what he said and repeated, “You heard me goof, do I have to get the piss out?” He was making reference to my assault by inmate J.L. last month when he threw urine in my face.
He said this while being about 1-2 feet away from me and I felt that with his aggressive behaviour and his threats that I needed to have more personal space between him and I. At this time I pushed him backwards in the chest area with an open hand, I moved backwards to the emergency alarm and sounded it. At this time inmate P.S., took a step towards me and squared off in a fighting stance with both his fists in the air and said I’m going to knock your fucking head off. With this threat of assault and his past assaults on staff I took this threat seriously and I also put my hands up in defence of any future strikes from P.S. I took a step towards him and with tactical communication I ordered him to back up and put his hands on the wall, he did not comply.
At this time strikes were delivered to each other. Officers began to arrive and took control of the inmate. During this time I tripped on someone’s leg and fell backwards. I got back up and assisted in restraining the inmate. P.S. refused several verbal orders from officers McGhee, Bowman, Chauvin as well as myself for him to put his hands behind his back to be handcuffed. I was trying to take control of his left arm but could not get a firm grip on it, as he was not compliant. At this time I delivered a distractive strike to left side of the top of his head and ordered him to put his hand behind his back. At this time he complied with my order. When the other Officers had control of his arms I stood up and took a step back. This is when I saw OM 16s Heggie and Mitchell arrive and Mr. Heggie asked me to leave the area so that they could escort P.S. out of the area.
[ 88 ] Inspector McNair expressed the opinion that the grievor’s Occurrence Report did not satisfy the requirements pertaining to report writing, as outlined above. On his reading, it was incomplete and not as detailed and informative as it should have been in the description of the incident. Inspector McNair testified that, given what was shown on the video, he did not consider the grievor’s Occurrence Report to be consistent with the facts. The basis for this conclusion has been previously set out in paragraphs [67], [69] and [70] of this Decision.
[ 89 ] Inspector McNair stated it was his belief that the other COs involved in the incident also failed to provide all of the relevant information in their Occurrence Reports. Similarly, he asserted that, in their interviews with him, the COs offered up unsolicited information in an effort to support the grievor’s description of his encounter with inmate P.S. Inspector McNair formed the impression that a lot of the details they provided seemed “rehearsed or discussed beforehand”. He attributed all of this to the Code of Silence, which he described as being “rampant” within every correctional facility across the Province. It was his view that COs and inmates alike are motivated to conceal or bury the real facts in order to “protect their own”. For a number of reasons, Inspector McNair believed that this Code was definitely in play during the course of his investigation into the incident of May 17, 2008.
[ 90 ] Superintendent Marsh also believed that the grievor was not forthcoming and truthful in terms of what he chose to include in his Occurrence Report. From his perspective, the grievor provided an untruthful, incomplete and inaccurate version of the events in order to justify his actions. Superintendent Marsh’s views as to what transpired during the incident are set out in paragraphs [72], [75] and [76] of this Decision. It was his evidence that, after reviewing the video and photographic record, he simply did not “buy” the grievor’s explanation. Superintendent Marsh also considered it material that the grievor never filed an Addendum to his Occurrence Report notwithstanding that he acknowledged, on more than one (1) occasion, that the initial report was not entirely accurate. The following excerpt from the letter of termination spoke to this concern:
“In response to the second allegation, you told the CISU Inspector that you stand by your report. When I asked you “was it accurate” you replied “not to the fullest no”. You also said “I disclosed everything to investigator on June 9”. You did tell me you had additional informationbut did not submit an addendum report regarding your actions around the use of force on inmate P.S. I asked you if you understood what an addendum report was and you agreed you did. In past situations you have had no problem sending me e-mails or telephoning me with other information and when I asked you why you did not do so in this case you told me several months had past from the incident. You also testified in the criminal trial of inmate P.S. that your occurrence report was not complete and accurate. It would seem to me that you were either deliberately attempting to mislead the investigators and the courts and my office or you were attempting to deflect the truth of what actually did occur. You completed an inaccurate report too in a deliberate attempt to alter the version of events and mislead the Ministry. In addition you failed to complete an addendum report when you recalled pertinent information of the incident.”
Superintendent Marsh acknowledged that neither he, nor any other OM with delegated authority, ever asked the grievor to provide an Addendum to his Occurrence Report. He further accepted that all of the Occurrence Reports submitted by both the COs and OMs were deficient in certain respects. Superintendent Marsh agreed that the grievor was the only person disciplined with respect to the content of an Occurrence Report.
[ 91 ] Mr. Ireland’s conclusions as to the grievor’s actions during the three (3) phases of the incident are set forth in paragraphs [79], [80] and [81] of this Decision. It was the substance of his evidence that the grievor’s description of the events was inconsistent, in several material respects, with what he observed on the video record. Mr. Ireland agreed that the presence of elevated stress could “initially” affect a CO’s ability to immediately recall and record the details of an incident of this nature. He advised that the ability to recall might be better, however, within a matter of hours, or a day, after such an encounter.
[ 92 ] The grievor testified that prior to writing his Occurrence Report, he went to the OM’s office to see if he could review the video record. When he arrived there, he observed that OM Mitchell and CO Chauvin were already in the process of reviewing the video. The grievor stated that OM Mitchell then made certain statements which he found to be offensive. By way of example, it was his evidence that OM Mitchell said, “This is where you punched him and where you punched again”. The grievor further testified that, as he was leaving the OM’s Office, OM Mitchell stated, “I saw you punch him first, your report had better be a good one”. At that juncture, the grievor went to the Resource Room to prepare his Occurrence Report relating to the incident. He commenced the typing of the report at about 10:54 a.m.
[ 93 ] The grievor maintained that he tried to do his best in terms of providing an accurate description of the events of earlier that morning. He asserted, however, that several things served to undermine his efforts. First, the grievor noted that he was unable to view the video footage prior to starting work on the Occurrence Report and, as a consequence, was unable to review and assess the events, all of which occurred in a relatively condensed period of time. Second, the grievor advised that he was “stressed out” at the time and did not have a complete opportunity “to settle down and let the adrenalin run out” following the confrontation with inmate P.S. In his words, he felt “jittery” at the time. Third, the grievor testified that he felt he was being “rushed” by OM Mitchell and Acting OM Heggie to finish his Occurrence Report. This was compounded by his fear that he was about to be suspended and might lose his job. Fourth, the grievor recalled that his preparation of the Occurrence Report was interrupted by several COs who entered the Resource Room to inquire about what had occurred earlier or to use the washroom located there. He also recalled that either OM Mitchell or Acting OM Heggie came to the room to determine if he was finished writing the report. It was the substance of the grievor’s evidence that all of the above serve to explain any deficiencies existing in his Occurrence Report. I note that after first proceeding to the Resource Room, the grievor was relieved of his duties in order to give him time to complete the report. It is difficult on the evidence to determine precisely when this occurred.
[ 94 ] The grievor was advised by Acting OM Heggie to attend at the OMs’ Office with a Union Representative once his Occurrence Report was completed. After printing the report in the A. and D. area, he and CO Chauvin went together to the OMs’ Office. The grievor testified that both OM Mitchell and Acting OM Heggie were there at the time, and that the former took his report and placed it in a file without looking at it. The grievor believed that the report was submitted at about 12:45 p.m. He recalled that OM Mitchell then advised him that he was being suspended with pay for that day, but without pay for his upcoming four (4) to five (5) days. After some input from Acting OM Heggie and CO Chauvin, it was determined that the suspension for all of of these days would be with pay.
[ 95 ] It was the grievor’s evidence that he asked OM Mitchell why he was being suspended and that he was told it was because OM Mitchell saw him punch the inmate first on the video record. The grievor stated that on receiving this response, he noted that OM Mitchell did not know “his side of the story”, as he had not actually read the Occurrence Report. The grievor testified that OM Mitchell then advised him that it did not matter, as the video spoke for itself. OM Mitchell then directed the grievor to collect his belongings and leave the facility immediately. In the process of so doing, the grievor went to the Staff Lunch Room and explained to his colleagues that he was suspended. He informed them that he was going to a hospital or a clinic to get checked out for a possible injury sustained during the altercation, and that he had plans to file charges against inmate P.S. The grievor believed he left the Windsor Jail at approximately 1:00 p.m.
[ 96 ] In cross-examination, the grievor agreed that his Occurrence Report was “not completely accurate”. This was admitted to on August 20, 2008 during the subsequent criminal trial of inmate P.S. on charges that he uttered a threat to cause bodily harm and assaulted a peace officer. These charges were initiated by the grievor by way of an attendance at the Windsor Police Station later in the day on May 17, 2008. The transcript of the trial discloses that the grievor gave the following response to a question concerning the accuracy of his Occurrence Report: “It’s not a hundred percent accurate no, forgot to include a couple of things, yes”. The grievor made a similar admission to Superintendent Marsh and Deputy Superintendent R. Neufeld at an Allegation Meeting held on October 29, 2008. He there acknowledged that the report was “not accurate to the fullest”. The grievor advised both Superintendent Marsh and Deputy Superintendent Neufeld that he had disclosed everything to Inspector McNair during the interview of June 9, 2008. The grievor initially testified that he did not tell these gentlemen what was “missing” from his report that had been subsequently communicated to Inspector McNair. By way of explanation, he stated, in effect, that they never asked him to fill in the gaps. At a later point in cross-examination, the grievor agreed that the management representatives at the Allegation Meeting did ask him what was missing from his report. He asserted that he did say “something” about what was missing, but was unable to recall what new information he then disclosed. In a related vein, the grievor further agreed that he did not provide this information to Superintendent Marsh or Deputy Superintendent Neufeld following the meeting on October 29th. He volunteered that “they didn’t ask me either”. Lastly, the grievor acknowledged that he did not provide an Addendum to his original Occurrence Report. He suggested that management personnel did not want one, as they never requested he provide such a document.
[ 97 ] It was the thrust of the grievor’s evidence that OM Mitchell was hostile towards him and might have been out to get him. He referenced the following in support of this assertion:
i. an incident in the Staff Lunch Room in the Fall of 2006 where OM Mitchell allegedly made an ethnic comment which the grievor did not appreciate and objected to;
ii. an incident towards the end of 2007, in which the grievor voiced concerns to OM Mitchell that insufficient COs were involved during the search of a living unit. The grievor recalled that OM Mitchell responded by saying “Just do your job”. The grievor informed Mr. Dominic Bragaglia, a Union Representative, of the situation. It was his evidence that a day or two (2) later, OM Mitchell “tore a strip” off him in the Staff Lunch Room in front of other COs about his “running” to Mr. Bragaglia and the Union for everything. The grievor advised that further discussion with OM Mitchell on the subject proved unproductive;
iii. A disagreement with OM Mitchell in October, 2007 about how quickly it took him to conduct a count. The grievor was of the view that OM Mitchell responded to him over the radio, and in the latter’s office, in an inappropriate fashion. Due to a complaint from a third party, the grievor was asked by the Security Manager to prepare an Occurrence Report about the exchanges. The report he prepared was for Superintendent Marsh’s attention; and
iv. The grievor noted that he was not called in for shifts, as the senior casual, in the proper order when OM Mitchell was for the calls. The grievor testified that OM Mitchell was unresponsive when he voiced his concerns to him.
[ 98 ] It was the grievor’s evidence that after leaving the Windsor Jail on May 17, 2008, he attended at three (3) medical clinics to check on a possible injury to his hand stemming from the altercation earlier that day. He advised that all of the clinics were closed as it was a Saturday. The grievor then elected to go to Hotel-Dieu Grace Hospital. He there saw both a physician and a social worker in the Hospital’s Emergency Department. It was determined that there was no fracture of the finger after x-rays were taken and evaluated. The grievor was, however, given a medical note authorizing him to be off work for fourteen (14) days. This was in response to his complaint of mental stress arising from the incident with inmate P.S. and an earlier incident on April 13, 2008 during which a cup of urine was thrown in his face by another inmate.
[ 99 ] After leaving the Emergency Department, the grievor proceeded to the Windsor Police Station. Once there, he provided a statement and asked that criminal charges be brought against inmate P.S. The two (2) charges referenced above were subsequently laid. The Crown elected, ultimately, to only proceed on the charge of uttering a threat to cause bodily harm. This charge was withdrawn at the Crown’s request part way through the trial held on August 20, 2008. In cross-examination, the grievor disputed the suggestion that he was trying to portray himself as the victim when he went to the Hospital to check on possible injuries and to the Police Station to initiate the charges. Additionally, the grievor stated his belief that he did not know at the time that inmate P.S. was complaining about being subjected to an excessive use of force.
[ 100 ] As mentioned above, an inmate threw a cup of urine in the grievor’s face on April 13, 2008. The grievor attended at Hotel-Dieu Grace Hospital that day for precautionary bloodwork to test for Hepatitis B, Hepatitis C, and HIV. Fortunately, the tests all came back negative. It was the grievor’s evidence that the incident itself, and the consequent need for testing, caused him considerable stress and anxiety. He added that it also caused his wife to be upset. OM Vallee testified that he contacted the grievor shortly after the incident to see how he was doing. At the time, OM Vallee was working in Staff Services and was responsible for WSIB matters and workplace injuries.
[ 101 ] Following this incident, the grievor completed a Functional Abilities Form for Timely Return to Work with the assistance of his physician. This form, dated April 14, 2008, indicated that no treatment was required and that the grievor could return to work immediately without any restrictions. From the evidence, it seems that the grievor returned to work within a day or two after the incident without missing any scheduled shifts. On his return, he did not request any accommodation.
[ 102 ] RN Imeson and OM Vallee both testified that having urine thrown in a staff member’s face by an inmate is a serious concern within the institution, in large part because inmates may have various significant diseases which could be spread by such conduct. Acting OM Varney was the subject of a similar incident during the course of this proceeding. I was informed that the incident led to a WSIB claim and subsequent lost time from work.
[ 103 ] Shortly after the incident on May 17, 2008, RN Imeson was instructed by Acting OM Heggie to go to the Segregation Unit and assess inmate P.S.’s condition. Once there, she looked at and spoke to the inmate through a window in the cell door. During her visual examination, the inmate was approximately one foot (1') away from her. RN Imeson believed that she got a full look at his face. It was her judgment that inmate P.S. did not need the type of medical care that would require the cell door to be opened.
[ 104 ] RN Imeson completed an Accident/Injury Report and a Health Care Record form almost immediately after her visual examination of inmate P.S. On the former document, she described the observed injury as follows: “Lt. upper eye lid slight swelling and plum bruising. No visual disturbance. Denies any other injury. No treatment”. This description was essentially repeated in the latter record. RN Imeson did not document any injury to the inmate’s right cheek. She testified that she did not observe such an injury. RN Imeson agreed, in cross-examination, that she could not say if the injury she did observe occurred from the incident, as she was not present at same. All she could say was that inmate P.S. had such injury when she saw him in Segregation. RN Imeson advised that she performed a routine check of the inmate during the afternoon of May 17, 2008. She stated that he then had no complaints and was not given any medication. The inmate, similarly, had no complaints when she saw him in Segregation on the following day. Lastly, I note that a doctor, who saw inmate P.S. on May 22nd, made the following notation on the Accident/Injury Report: “No visible injury now. Denies symptoms.”
[ 105 ] CO Bauman testified that he could not see any injuries to inmate P.S. when he assisted with the escort to Segregation. Similarly, Acting OM Heggie did not observe any injuries when the inmate arrived at Segregation. OM Mitchell also did not see any injuries prior to when he left that unit. It was his evidence that he was not actively looking for injuries as his attention was more focused on diffusing the situation. On the evidence before me, it appears that none of the other COs who were involved in the incident observed any injuries to inmate P.S. Acting OM Heggie was unable to recall whether he, or someone else, gave a direction that this inmate be watched until RN Imeson arrived and photographs were taken.
[ 106 ] Photographs of inmate P.S.’s face were taken by CO Davenport at 11:26 a.m. on May 17, 2008. He entered the cell to take them. The photographs, which were entered as an exhibit in this proceeding, show bruising above the inmate’s left eye and a red mark to the right of his nose.
[ 107 ] Superintendent Marsh made the decision to terminate the grievor’s employment at the Windsor Jail. Before doing so, he consulted with the Regional Director, the Deputy Regional Director and a representative of Staff Relations. Superintendent Marsh subsequently presented the grievor with the letter of termination on December 1, 2008.
[ 108 ] Superintendent Marsh testified that he considered all of the following in arriving at the decision to dismiss the grievor:
i. The CISU Investigation Report prepared by Inspector McNair, together with all the material contained or referenced therein. This included the Audio-Recorded Statement Summary of the grievor’s interview with Inspector McNair held on June 9, Superintendent Marsh noted from his review of the interview that the grievor “stood by” his Occurrence Report and insisted that he had done nothing wrong during the incident. It was Superintendent Marsh’s evidence that he found the Investigation Report to be complete and accurate in respect of the excessive use of force against inmate P.S. He noted, however, that he was not compelled to accept, or act on, such Report. How he utilized same was a matter for his discretion;
ii. The video footage of the incident as captured by cameras #1 and #7. His conclusions from this review have been previously set out in paragraphs [72], [73], [74], [75], and [76] of this Decision. Simply stated. Superintendent Marsh determined that the grievor used excessive force against inmate P.S.;
iii. The grievor’s Occurrence Report dated May 17, 2008. His conclusions arising from a review of same are set out in paragraph [90] of this Decision. As stated therein, he found the report to be an untruthful, incomplete and inaccurate account of the relevant events;
iv. The notes from the Allegation Meeting of October 29, 2008 at which he, Deputy Superintendent Neufeld, the grievor and his Union representatives attended;
v. The grievor’s employee file, which contained the following prior discipline:
a. A letter of reprimand dated March 3, 2004, issued because the grievor called another CO a “rat”;
b. A three (3) day suspension without pay dated March 23, 2006, issued because the grievor made inappropriate comments to an inmate;
c. A letter of reprimand dated August 9, 2006, issued because the grievor used inappropriate force against two (2) inmates. A suspension was initially imposed for these infractions but the discipline was reduced by way of a Memorandum of Settlement, following the filing of a grievance;
d. A letter of reprimand dated September 21, 2006, issued because of the grievor’s violation of the Security Policy; and
e. A twenty (20) day suspension without pay dated August 20, 2007 for engaging in a “prank” against another CO and for making inappropriate comments to two (2) other COs. The grievor was initially terminated for this conduct. This was reduced to a twenty (20) day suspension pursuant to an order of the Settlement Board.
The Union raised an issue of whether the discipline referenced in paragraph (v)(a) should have been considered given the sunset provision contained in article 22.15.1 of the collective agreement. Superintendent Marsh stated that his decision to terminate would not have changed if this discipline had not been in the grievor’s file. He advised that the decision to terminate was “linked more to the current discipline”;
vi. The grievor’s personnel file. Superintendent Marsh was unsure whether the file contained the grievor’s performance appraisals or letters of commendation he may have received. He did recall that thank-you letters were in the file;
vii. A copy of the Transcript of the proceedings in the Ontario Court of Justice relating to the charges laid against inmate P.S. Superintendent Marsh noted from a reading of same that the grievor said under oath that his Occurrence Report was not as accurate as it could have been; and
viii. Superintendent Marsh also considered a series of emails pertaining to the urine incident; the grievor’s assertion that he was rushed by OM Mitchell to complete his Occurrence Report; and the impact upon the grievor that would flow from a dismissal. With respect to the Occurrence Report, he noted that the grievor commenced writing it at 10:54 a.m. and submitted it to OM Mitchell at 12:45 p.m. It was his belief that this was an adequate period of time in which to complete a comprehensive and accurate report. Superintendent Marsh took into account that the grievor had been relieved from his post to do the report. He also considered it material that the grievor did not submit an Addendum. The Superintendent took from this that the grievor had nothing more to add to the report in any event.
[ 109 ] After engaging in the above review, Superintendent Marsh came to the conclusion that any discipline less than termination would not be corrective in all of the circumstances and, accordingly, opted for the termination.
[ 110 ] The grievor testified that the initial suspension and subsequent termination caused considerable tension in his family life and placed him in a difficult financial position. He advised that he took advantage of the Employee Assistance Program to help him with the problems experienced. It was the grievor’s evidence that, if reinstated, he could have a good working relationship with OM Mitchell and other management staff. From his perspective, he has owned up to the mistakes he has made and has learned from them. The grievor asserted that he has always tried to do the best he can on the job. He emphasized that there had been no disciplinary incidents on his file between the imposition of the twenty (20) day suspension in August, 2007 and the incident with inmate P.S. in May, 2008.
[ 111 ] As mentioned in paragraph [2] of this Decision, the grievor filed five (5) grievances prior to the filing of the grievance of December 1, 2008 contesting his termination. These other grievances may be summarized as follows:
i. A grievance dated June 4, 2008 in which the grievor claimed that management offered him inadequate support and assistance following the urine incident of April 13, 2008;
ii. A similar grievance, also dated June 4, 2008, in which the grievor claimed that management offered him no support and assistance following the incident with inmate P.S. on May 17, 2008;
iii. A third grievance dated June 4, 2008 in which the grievor complained about not being scheduled for any shifts and not receiving any pay after the date of his last scheduled shift in May, 2008;
iv. A grievance dated June 12, 2008 in which the grievor claimed the Employer subjected him to a CISU Investigation Interview on June 9, 2008 that was harassing, intimidating and designed to arrive at a pre-arranged conclusion; and
v. A grievance dated September 11, 2008 in which the grievor claimed that there was unreasonable delay in the completion of the investigation process.
[ 112 ] Before turning to the submissions of the parties, one (1) final matter needs to be mentioned. During the course of the grievor’s evidence, he provided two (2) images which he generated from a program on his personal computer. It was the substance of his evidence that the images produced therefrom served to enhance the video tape relating to the initial phase of the incident. More specifically, the grievor asserted that they established his hand was opened, and not closed, when he directed his arm towards inmate P.S. in the bulkhead area.
[ 113 ] Counsel for the Employer initially referenced the three (3) phases of the altercation between the grievor and inmate P.S. During this part of the argument, she focused extensively on the video record captured by cameras #1 and #7.
[ 114 ] On counsel’s analysis, the grievor during the initial phase directed a right hand punch towards the inmate’s face when they were both standing in the hallway close to the door to the Inmate Visit Room. It was her submission that the grievor intended to contact the inmate’s facial area. The Employer accepted that the grievor was being taunted by the inmate and that the latter twice asked the grievor whether he had “to get the piss out”. Counsel asked, however, that I reject the grievor’s evidence that he did not have sufficient opportunity to either call out for assistance from the two (2) COs in the Staff Lunch Room or to use his radio to summon an OM to the Security Hall. She argued that, in all of the circumstances, the grievor had the opportunity and the obligation to exhaust such options before electing to strike out at the inmate. Counsel submitted that the grievor initiated the physical confrontation in phase one (1) of the encounter by way of an aggressive punch at the inmate’s face. She stated that I should not accept the Union’s position that the proximity of inmate P.S. to the grievor justified a distractive strike. In her view, the grievor simply wanted to punish the inmate for his rude and offensive remarks.
[ 115 ] Counsel noted that after pushing the alarm button, the grievor moved quickly around the corner and into the Security Hall. She stressed that, at that juncture, the inmate had “disengaged” and was walking away from the grievor with his hands at his side. Counsel further observed that the inmate was not “squared off to fight” when the grievor first entered the Security Hall. It was her assessment of the facts that the grievor pursued inmate P.S. down the hallway and initiated the fight with him. She suggested that the inmate said he would knock the grievor’s “fucking head off” only after the grievor attempted to throw a punch at him. Counsel asked me to reject the grievor’s evidence that he ordered the inmate to move to the wall and that the latter failed to comply. She submitted that, in any event, if there was non-compliance on the part of the inmate, it likely resulted from the grievor’s aggressive and unprofessional behavior. Counsel further suggested it was unlikely that inmate P.S. was about to “embark on an uncontrolled rampage throughout the Jail”. She observed that he was heading towards the same area where most of the COs were coming from. Counsel noted that the inmate was not moving towards an exit, but rather towards the rear of the facility. From her perspective, at the time the grievor pursued the inmate down the Security Hall, there existed no real risk of escape. She submitted that the grievor unnecessarily initiated the “fist fight” during the second phase of the encounter, and that it was simply a continuation of the assaultive behavior he had chosen to use earlier in the bulkhead.
[ 116 ] Counsel for the Employer noted that inmate P.S. was taken to the ground within a few seconds after the first COs responded to the Code Blue. She noted, additionally, that he was positioned on his stomach, with his hands beneath his body, and that his legs and torso were being restrained by the COs. Counsel asked that I reject the grievor’s evidence that the inmate’s hands were “flailing”. It was her submission that his hands were positioned under his body and that, if they were flailing, they would easily have been caught and secured. Counsel suggested it was possible that the inmate was unable to comply with any direction to give up his hands because of his position and the weight being placed on him by the COs involved in the encounter.
[ 117 ] Counsel argued it was clear from the evidence of the grievor, and several of the attending COs, that the grievor delivered a distractive strike to inmate P.S. while the latter was laying prone on the floor on his stomach. She argued that he did so with a straight punch and not a flip with the back of the fingers, or a check with the heel of the hand. Counsel maintained that, based on her review of the still photographs, the grievor “propelled” his arm and hand in a way that was more consistent with a straight arm punch to the inmate’s face. She argued that, in any event, no strike of any kind was necessary in the circumstances and that the strike employed was an unjustified and excessive use of force. Counsel suggested that the strike of the inmate while he was on the floor, and in the presence of several COs, was likely administered to punish him for his earlier taunts of the grievor. She observed that the use of force as a means to punish an inmate is expressly prohibited by the Employer’s use of force policies.
[ 118 ] It was counsel’s assessment that in all three (3) phases of the incident, the grievor exhibited thuggish behavior of the type which might occur in a street or bar fight. She argued that his actions throughout were not those expected from a professional CO. In summary, it was the position of the Employer that the grievor’s conduct amounted to an “overwhelming violation” of its use of force policies and the Statement of Ethical Principles. Counsel argued that it was immaterial that inmate P.S. only received minor injuries from the strike.
[ 119 ] Counsel acknowledged that two (2) additional camera views were available, these being from the cameras positioned in the Inmate Visit Room and in the Front Entry Sallyport. She submitted, however, that the Union failed to adduce any cogent evidence that these extra views would have been of any assistance. In her words, such views would not have “recast” the evidence available from cameras #1 and #7.
[ 120 ] Counsel observed that COs are responsible for the care, custody and control of inmates and that the authority to use force against an inmate is narrow and specific. In this regard, she referenced the limitations on the use of force as set out in the following: Regulation 778, sections 7.(1) and (2); the Adult Institutions Policy and Procedures Manual relating to the use of force; the Standing Orders of the Windsor Jail; the Statement of Ethical Principles; the Use of Force Management Model; and the manuals used in both basic and refresher training. Counsel submitted that the grievor, according to his own evidence, was fully aware of the limitations established by the aforementioned legislation and documents. She further argued that, from his prior training, he would have known that a distractive strike is only to be used when a CO is under attack and as a means to escape to safety. On counsel’s view of the video record, the grievor was the aggressor and used improper force during each of the three (3) phases of the incident on May 17, 2008. It was her submission that no amount of force would have been reasonable, necessary, or authorized as the grievor, in each case, had other available options which he chose not to exercise.
[ 121 ] Counsel relied on the evidence presented by Mr. Ireland to support the argument that the grievor acted inappropriately on May 17, 2008 during the altercation with the grievor. More specifically, she referenced the following parts of his evidence:
i. Mr. Ireland testified that the strike towards inmate P.S.’s face during the initial phase of the incident had the appearance of a right hand punch. He also stated that the attempt to strike the inmate was not legitimate because the grievor was not being subjected to an assault. He further stated that strikes by a CO of an inmate’s face are prohibited. In Mr. Ireland’s opinion, if the grievor felt at risk, he should have resorted to other options prior to the use of any force. By way of example, he suggested that the grievor could have radioed for an OM to attend or could have called out to the COs in the Staff Lunch Room for assistance;
ii. Mr. Ireland testified that the grievor re-engaged inmate P.S. needlessly during the second phase of the incident that he, rather than the inmate, was the aggressor during the altercation in the Security Hall. Mr. Ireland noted that even if the grievor ordered the inmate to stand against the wall, he was not provided with an adequate opportunity to comply; and
iii. Mr. Ireland testified that a strike to the head and face of inmate P.S., while he was on the ground, was not appropriate conduct on the part of the grievor. In his opinion, there was then no need for any strike as it was inevitable the inmate becoming exhausted and submit to being handcuffed. Mr. Ireland noted that inmate P.S. was not assaulting any of the COs during the third phase of the incident and was only resisting to being handcuffed. From his perspective, the strike delivered by the grievor was, in the circumstances, an excessive use of force.
[ 122 ] Counsel for the Employer acknowledged that, during cross-examination, Acting OM Heggie expressed his opinion that the strike delivered to inmate P.S.’s head, while he was on the ground, did not constitute an excessive use of force. Counsel noted that Acting OM Heggie then served on the Institutional Crisis Intervention Team (ICIT) at the Windsor Jail, and that such Team was trained to manage inmates in the most violent and dangerous of circumstances. She suggested that Acting OM Heggie’s involvement with the ICIT may have coloured his response to Union counsel. Counsel argued that greater weight should be accorded to the evidence of OM Mitchell, Acting OM Kitchen, Acting OM Varney, OM Lewis and OM Vallee. These witnesses, generally, testified that distractive strikes are “very seldom” used by staff of the Windsor Jail and/or that they have never used such a strike in circumstances comparable to the third phase of the incident of May 17, 2008.
[ 123 ] Counsel referenced section 7.(3) of Regulation 778 and the Use of Force Procedural Checklist. These sources set out what must be included in an Occurrence Report, at a minimum. Counsel argued that Occurrence Reports constitute the “on the ground record” of events at a facility, such as the Windsor Jail, and that they represent “the backbone of law enforcement and corrections”. She noted that they can form part of the Crown’s defence of Human Rights or Charter claims commenced by inmates or others.
[ 124 ] Counsel commented specifically on the content of the grievor’s Occurrence Report dated May 17, 2008. She noted, inter alia, that it did not reference the grievor’s punch towards the inmate’s face. Instead, the Occurrence Report documented that the grievor pushed the inmate backwards in the chest area with an open hand. It was counsel’s submission that the grievor’s written account manipulated the sequence of events and embellished or misrepresented the facts in several respects, all in a “very self serving” manner. From her perspective, the Occurrence Report was prepared with the intention to mislead management of the Windsor Jail as to what actually occurred during the incident. Counsel suggested that the grievor opted to do so, as he was aware that he had breached his employment obligations. On her reading, the inaccuracies in the Occurrence Report were not minor and were incapable of being seen as merely inadvertent. She contrasted the grievor’s Occurrence Report with the ones prepared by OM Mitchell and Acting OM Heggie. Counsel submitted that they omitted to include “inconsequential things or facts which could be easily ascertained from other means”, such as a view of the video record to determine who was present in the Security Hall during the incident. Counsel also noted that the grievor admitted his report was not completely accurate during his interview with Inspector McNair; in the course of his testimony before the Ontario Court of Justice; and during the Allegation meeting with Superintendent Marsh and Deputy Superintendent Neufeld.
[ 125 ] Counsel for the Employer noted that the grievor, after being unable to access several medical clinics, attended at the Emergency Department of Hotel-Dieu Grace Hospital immediately on leaving the Windsor Jail on May 17, 2008. While there, the grievor met with a Social Worker and complained about the stress he was experiencing from work. After leaving the Hospital, he proceeded directly to the Windsor Police Station, with his Occurrence Report in hand, for purposes of initiating charges against inmate P.S. Counsel observed that the grievor did all of this prior to going home. She submitted that these actions were indicative of a person who knew he was at fault and was trying to deflect blame and portray himself as the aggrieved party.
[ 126 ] Counsel submitted that the still images, which the grievor produced through his personal computer, should not be given any weight. On her review, the images of the grievor’s hand and arm coming out from under the bulkhead were blurred and distorted. In counsel’s words, the images produced turned the hand “into a blob”. I was asked to find that the exhibits were both misleading and self serving and that it did not represent an enhancement, as claimed by the Union.
[ 127 ] Counsel argued that Superintendent Marsh’s decision to terminate the grievor’s employment was made in good faith and pursuant to a sound process. She noted that Superintendent Marsh reviewed the Investigation Report prepared by Inspector McNair. It was her submission that the Inspector was unbiased and that the investigation conducted was sufficiently thorough and complete to permit the Superintendent to rely on it as part of his decision making. Counsel also submitted it was appropriate for him to conclude, given the availability of the relevant Policies and Standing Orders together with the training provided, that the grievor had the requisite knowledge as to the limitations on the use of force and the requirements for report writing. Counsel maintained, therefore, that Superintendent Marsh could properly determine that the grievor breached the Use of Force Policies and the Statement of Ethical Priniciples, and that his conduct was blameworthy.
[ 128 ] Counsel noted the grievor admitted that his Occurrence Report was not entirely accurate during his testimony at the criminal trial and then again at the later Allegation Meeting with Superintendent Marsh and Deputy Superintendent Neufeld. She considered it material that the grievor never provided an Addendum and that he made no attempt to clarify, or add to, the initial Occurrence Report. Counsel submitted that in the circumstances, and after having compared the Occurrence Report to what was depicted on the video, Superintendent Marsh could properly conclude that the grievor used excessive force against the inmate during the incident and that his subsequent report reflected an effort on his part to mislead management as to what had actually occurred.
[ 129 ] Counsel further referenced the fact that Superintendent Marsh reviewed the grievor’s prior disciplinary record. She submitted it was significant that the grievor had received discipline previously for two (2) incidents involving excessive use of force, and that he later received a lengthy twenty (20) day suspension. Counsel also noted that Superintendent Marsh considered both the urine incident and the impact that termination would have on the grievor’s livelihood, prior to making his decision. She described his decision as “considered”, and as one that was not based on erroneous reasons or tainted by bad faith. Counsel maintained, rather, that Superintendent Marsh’s decision resulted from a reasonable apprehension of the facts. It was her submission the Superintendent could properly conclude that the grievor’s pattern of inappropriate behavior was not going to change.
[ 130 ] It was the position of the Employer that the misconduct referenced in the letter of termination was proven during the course of this proceeding through clear and cogent evidence. Counsel asked, accordingly, that the termination be upheld and the grievance dismissed. In the alternative, she requested that I apply the doctrine of culminating incident if I was to find that the misconduct called for some discipline short of discharge. In that event, counsel argued that the misconduct should be treated as a culminating incident capable of supporting the decision to terminate, in view of the nature and extent of the grievor’s prior disciplinary record.
[ 131 ] Counsel argued the grievor has repeatedly shown that he lacks the judgment and self discipline required of a CO. She stated that the Windsor Jail should not continue to be burdened with an employee, like the grievor, who can no longer be trusted and who simply “doesn’t get it”. Counsel asserted that the grievor would not learn from another opportunity to return to work. She acknowledged the grievor admitted that his Occurrence Report was incomplete and that he delivered a distractive strike to the facial area of inmate P.S. while the latter was on the ground. Counsel emphasized, however, that he has not conceded any wrong doing or expressed any remorse. From her perspective, there is no reason to believe that a solid employment relationship can be restored. For these reasons, counsel requested in the further alternative that damages be awarded in lieu of reinstatement, if I was inclined to set aside the termination.
[ 132 ] The Employer provided the following authorities in support of its position: OPSEU and Ministry of Community Safety and Correctional Services (Beltrano Grievance) (2008), 177 L.A.C. (4th) 1 (Petryshen); OPSEU and Ministry of Community Safety and Correctional Services (Gillis et al.), GSB No. 2003-1520 et al. (Abramsky); OPSEU and Ministry of Public Safety and Security (Horan Grievance), [2002] O.G.B.S.A. No. 58, GSB No. 0670/01 (Herlich); OPSEU and Liquor Control Board of Ontario (Bissonnette), GSB No. 2007-1870 et al. (Gray); United Food and Commercial Workers, Local 175 v. Better Beef Ltd. (Cox Grievance), [2007] O.L.A.A. No. 388 (MacDowell); Weyerhaeuser Co. (Drayton Valley Operations) v. United Steelworkers Local 1-207(Greaves Grievance) (2007), 159 L.A.C. (4th) 56 (Power); OPSEU and Ministry of the Environment (Orcheson), GSB No. 2722/91 et al. (Gray); West Fraser Electro/Mechanical Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 1133 (Hunt Grievance) (2009), 188 L.A.C. (4th) 131 (Coleman); OLBEU and Liquor Control Board of Ontario (Massa), GSB No. 2033/97 et al. (Abramsky); Hendrickson Spring (Stratford Operations) v. United Steelworkers of America, Local 8773 (Ewaniuk Grievance), [2009] O.L.A.A. No. 34 and, [2009] O.L.A.A. No. 648 (Solomatenko); Board of Governors of Lethbridge Community College and Alberta Union of Provincial Employees and Sylvia Babin, 2004 SCC 28, [2004] 1 S.C.R. 727; De Havilland Inc. v. National Automobile, Aerospace, Transportation and General Workers Union of Canada, Local 112 (Mayer Grievance) (1999), 1999 CanLII 35895 (ON LA), 83 L.A.C. (4th) 157 (Rayner); OPSEU v. Ministry of Education and Training (Lewis Grievance), [2001] O.G.S.B.A. No. 14 (Abramsky).
[ 133 ] With respect to the five (5) other grievances, it was suggested by counsel for the Employer that the Union led insufficient evidence on same during the course of this proceeding. Given that the Union had the onus of proof, I was asked to dismiss these grievances.
[ 134 ] Counsel for the Union acknowledged at the outset that of the six (6) grievances, the one contesting the grievor’s termination was the most important. He submitted, however, that there was evidence to support the granting of the other five (5) grievances. His submissions relating to these latter grievances are set out below.
[ 135 ] As mentioned previously, the grievance of September 11, 2008 claimed that there was unreasonable delay in the completion of the investigation process. Counsel for the Union noted that Inspector McNair commenced the investigation on May 19, 2008 and that the Investigation Report was subsequently issued on September 22, 2008. The grievor was not terminated until December 1, 2008. On counsel’s analysis, there were two (2) separate periods of delay, these being June 11 to August 29, 2008 and September 22 to December 1, 2008. He emphasized that within these two (2) periods, the grievor, as an unclassified employee, was not scheduled any shifts and, as a consequence, did not earn any income. It was the position of the Union that the grievor was entitled to financial compensation in respect of the two (2) periods referenced. With respect to the earlier period, counsel asserted that, for whatever reason, there was no action taken in that time frame. In terms of the latter period, he argued that compensation should be awarded from October 1 to December 1, 2008. This, in effect, provided the Employer with a period of eight (8) days in which to reach a disciplinary decision, following the receipt of the Investigation Report. It was the thrust of counsel’s submission that the Employer should have been able to make its decision by October 1st and that the grievor should not bear the financial consequences arising from the further delay after that date. Counsel requested that I leave it to the parties, at first instance, to determine the amount of compensation owing, if I was to allow the grievance. He advised that a favourable ruling with respect to this grievance would, essentially, capture the claim made in the grievance of June 4, 2008 in which the grievor complained about not being scheduled for any shifts and not receiving any pay after the date of his last scheduled shift in May, 2008.
[ 136 ] The grievance of June 12, 2008, as stated, claimed that the Employer subjected the grievor to a CISU interview that was “harassing, intimidating and designed to arrive at a pre-arranged conclusion”. Counsel for the Union submitted that, from the start of the investigation, Inspector McNair demonstrated bias against the grievor and was out to get him, rather than to gather all of the facts in an objective and more balanced fashion. Counsel referenced the following aspects of the investigation in support of his submission:
i. Inspector McNair failed to acquire and save the views which would have been captured by the cameras positioned in the Inmate Visit Room and in the Sallyport. He suggested that the former would have shown the grievor and inmate P.S. outside of the Inmate Visit Room door, although possibly just from the waist down. Counsel stated that the video would have indicated how close they were to each other, and would have supported the grievor’s concern that the inmate was too close to him during the initial phase of the incident. Counsel further suggested that the latter camera in the Sallyport would have provided another angle, through the glass window, of the take down of the inmate by the COs. He was uncertain if this camera would have captured the grievor’s arm movement in the bulkhead area or the subsequent phase of the incident when inmate P.S. was on the ground. Counsel argued, however, that Inspector McNair’s failure to gather and review these sources of potential evidence amounted to a serious deficiency in the investigative process;
ii. Inspector McNair did not speak with, or interview, the Control Room Officer, and did not seek a report from him. He advised that such Officer had a number of screens available to him by which he could monitor and observe activities elsewhere in the Windsor Jail. Counsel referenced a conflict in the Inspector’s evidence relating to whether he went into the Control Room. On the initial day of his evidence, Inspector McNair stated that he did not go into the room. On the second day of his testimony, he recalled that he had, in fact, gone into the Control Room. Counsel indicated that he found it difficult to believe the Inspector would not recall that fact when he was first testifying;
iii. Inspector McNair never checked to determine if inmate P.S. had been left alone in the Segregation Unit prior to RN Imeson’s arrival there. Counsel argued that this was a significant omission given that no witness could recall seeing any injury to the inmate before he went into segregation. He asserted that Inspector McNair should have made this inquiry in order to determine if the injuries documented by RN Imeson were self-inflicted, and not the result of the earlier altercation. Counsel submitted that the Inspector chose not to take this step, as he was out to get the grievor;
iv. Inspector McNair tried to “play up the Code of Silence”. Counsel for the Union observed that COs Davenport, McGhee, Bauman, McArter, in addition to the grievor, all noted in their Occurrence Reports that a strike was delivered to the inmate. From his perspective, this established that these COs were not trying to hide anything;
v. Counsel argued that Inspector McNair deliberately misled, or lied to, the grievor during the interview of June 9, 2008. He referenced that the Inspector put to the grievor that witnesses said he was observed striking inmate P.S. with a closed fist. Counsel submitted this was false, as the only witness who saw the grievor’s hand at the material time was CO Bauman and he said it was an open hand. Additionally, counsel noted that the Inspector put to the grievor that no one recalled him giving a directive to the inmate to give up his hands and comply. Counsel, again, stated this was inaccurate, as CO McArter had advised he heard such a directive being given at least once. Counsel indicated that Inspector McNair was aware of this at the time he interviewed the grievor. He maintained that, in the circumstances, the Inspector had abused his role and position. Counsel further relied on a statement he attributed to Inspector McNair in re-examination in which the latter said that he had “played” the grievor.
[ 137 ] For all of the above reasons, counsel submitted that all of Inspector McNair’s evidence was tainted. He reiterated that the Inspector set out to mislead and lie to the grievor, instead of acting as a “neutral gatherer of the facts”. Counsel claimed that this misconduct entitled the grievor to general damages in the amount of $1,500.00.
[ 138 ] As indicated, the grievor also filed two (2) grievances on June 4, 2008 in which he claimed that management had offered him inadequate support and assistance following the urine incident of April 13, 2008, and no support and assistance after the incident with inmate P.S. on May 17, 2008. Counsel noted that only OM Vallee contacted the grievor after the first incident, and that Inspector McNair was the only Employer representative to speak with him after May 17th. Given these circumstances, I was asked to issue a declaration to the effect that the Employer should have directed someone, for reasons of health and safety, to follow up with the grievor to see if he needed support and/or assistance following both incidents.
[ 139 ] Counsel for the Union submitted that the Employer did not rely on the doctrine of culminating incident when it decided to terminate the grievor’s employment. Rather, the Employer opted for termination strictly on the basis of what occurred during the incident of May 17, 2008. Counsel argued that the Employer should not be permitted to enlarge the grounds for termination beyond those it relied on at the time. On his reading, the letter of termination of December 1, 2008 did not disclose any intent to found the termination upon the occurrence of a culminating incident.
[ 140 ] Counsel argued that the Employer was required to prove its case by way of clear, strong and cogent evidence. He stated this was so, in part, because of the significant impact of a finding that the grievor used excessive force against inmate P.S. Pursuant to section 7(4) of the Crown Employees Collective Bargaining Act, such a finding would preclude this Vice-Chairperson from reinstating the grievor to a position that involves direct responsibility for, or that provides an opportunity for contact with, inmates in a correctional facility. Counsel advised that this would result even if I determined that the grievor’s conduct only merited a short period of suspension. He, therefore, cautioned that a very careful analysis had to be undertaken before deciding that the grievor used excessive force on May 17, 2008. Simply put, such a finding would effectively put an end to the grievor’s career as a CO.
[ 141 ] Counsel for the Union maintained that every person involved in the incident, both from management and the bargaining unit, failed to provide a full and complete Occurrence Report. By way of examples, he cited the following: OM Mitchell and Acting OM Heggie did not identify any of the other COs involved in the attempt to restrain inmate P.S. on the floor; and Acting OM Heggie failed to report the contact between his knee and the inmate. Counsel observed that OM Mitchell’s Occurrence Report was deficient even though it was prepared after he viewed the video record. It was his submission that the grievor should not be punished, when no one else involved in the incident was disciplined for a deficient report. In this regard, he argued that the deficiencies did not result from any “malicious intent”, but rather reflected a not uncommon tendency to forget some of the things which occur “at the heat of the moment”. Counsel also referenced the Occurrence Reports prepared in respect of the June, 2009 incident involving Acting OM Varney. He submitted that the Reports submitted in that instance were “wholly deficient”, and noted that the CO who was directed to file an Addendum still failed to explain the nature of the distractive strike employed on that occasion. Counsel observed that, similarly, no discipline was imposed in that situation in respect of any deficiency in the Occurrence Reports filed.
[ 142 ] In summary, on this aspect of the case, it was the position of the Union that it would not be fair to “single the grievor out”, given that a number of other Occurrence Reports were deficient but did not result in the imposition of any discipline. Counsel argued that, in cases of this nature, there exists a real need for equality of treatment. In the alternative, he submitted that even if the grievor’s Occurrence Report was deficient, that fact would not be sufficient to support a termination. He suggested that, at most, it would merit only a one (1) day suspension.
[ 143 ] Counsel for the Union next addressed the three (3) phases of the incident. With respect to the initial phase, he repeated that there was only “partial” evidence of the events given Inspector McNair’s failure to access the camera in the Inmate Visit Room. As mentioned above, counsel stated that the video from such camera, if accessed, might have shown how close inmate P.S. was to the grievor while they were both in the “closed space” near the opened door to the Inmate Visit Room. He referenced Mr. Ireland’s agreement that such evidence would have been helpful, particularly in relation to his explanation of proximics. Essentially, it was Mr. Ireland’s evidence that if the inmate was within touching distance of the grievor, then he was too close. Counsel referenced the grievor’s belief that inmate P.S. was, in fact, too close to him and Mr. Ireland’s acknowledgement that there is a subjective component to a CO’s assessment when confronted with this type of situation. Counsel also observed that there were gaps in the video, as certain parts of the initial phase were not captured by the two (2) cameras used by Inspector McNair. He also referenced the Employer’s decision not to call inmates P.S. and S.S. and the Control Officer as witnesses. It was the thrust of his submission that these individuals might have been able to shed more light on what actually occurred during the initial part of the incident.
[ 144 ] Counsel noted that, at the material time, inmate P.S. was moving back and forth in the confined area under the bulkhead near the Inmate Visit Room door. He emphasized that the inmate was then making comments which the grievor judged to be threatening. Counsel highlighted Mr. Ireland’s evidence that verbal taunts have to be taken seriously, and that negative consequences may result from some hesitation, on the part of a CO, to respond. Counsel also viewed it as significant that the grievor knew about inmate P.S.’s background, including the fact he had previously assaulted other COs and Police Officers. From his perspective, the grievor’s knowledge that this inmate was a “nasty guy” had to be factored in to how he should respond to the potentially volatile situation. On counsel’s analysis, an additional factor for the grievor’s consideration at the time was that the Security Hall constituted “an entrance way” into many areas of the Windsor Jail.
[ 145 ] Counsel submitted that the grievor did not have the benefit of hindsight at the time, as did those who viewed the video record during the course of the hearing. Instead, he had to respond in real time as the events were occurring. Counsel observed that these events all transpired within a very condensed period. He then referenced the grievor’s evidence that inmate P.S. failed to comply with several directions to move up against the wall, and that the former then decided to use “movement” as a distractionary technique to move him back. Counsel noted that the hand movement utilized was with the “back of the palm forward”. He argued that the computer images generated by the grievor supported that this was the type of movement made. In his view, the images did not depict the throwing of a closed fisted punch or swing. Counsel added that if I was unable to determine the position of the hand and the nature of the movement used, then the Employer would have failed to satisfy its onus. In this regard, he referenced CO Chauvin’s evidence that a back of the hand strike was a permitted distractionary technique.
[ 146 ] Counsel submitted that what occurred in the bulkhead area, during the initial phase of the incident, did not amount to a violation of the Statement of Ethical Principles. He stated that, if wrong on this point, the grievor’s actions there did not warrant termination but, rather, only some nominal form of discipline.
[ 147 ] Counsel stated that after pushing the emergency alarm, the grievor moved back into the Security Hall and observed that inmate P.S. was walking in the other direction towards the open end of the hall. He referenced the evidence of a number of witnesses who expressed the opinion that inmates cannot be permitted to move freely in that area, as it creates a security concern. Counsel specifically focused on the evidence of COs Petroni and Bauman. The former testified that he would not allow such movement, and would attempt “a take down” to stop it. The latter testified that he would not wait for others to arrive on the scene, and that he would want to take control of the inmate in that situation. Counsel further observed that CO Bauman stated he did not view the putting of hands on an inmate, in order to secure control, as the equivalent of starting a fight. In this respect, counsel argued that the grievor did precisely what two (2) other COs testified they would have done in similar circumstances. He, lastly, noted that the grievor was not involved in the actual take down of inmate P.S. to the ground.
[ 148 ] Counsel for the Union submitted, inter alia, that the grievor’s actions during the second phase of the incident did not warrant termination or, for that matter, any significant discipline.
[ 149 ] Counsel next addressed the third phase of the incident, which he described as the “open hand strike on the floor”. At the outset, he referenced Acting OM Kitchen’s evidence that a distractive strike is a permitted technique when an inmate is offering resistance to a CO while they are trying to perform some action in respect of that inmate, such as an attempt to handcuff. Counsel then noted, from the Employer’s opening argument, that there was no dispute inmate P.S. was resisting providing his hands to be cuffed. He further noted the evidence of several witnesses that the inmate refused to provide his arms for this purpose, despite being directed to do so a number of times.
[ 150 ] Counsel referred to the following evidence on this aspect of the case:
i. Mr. Ireland’s evidence that no training is provided to COs on the application of restraints to an inmate who is on the ground, and that there are no documents which expressly preclude the use of a distraction technique in those circumstances;
ii. Acting OM Heggie’s evidence that the technique of a distractionary strike is well known by staff working at the Windsor Jail. Counsel observed that such statement was supported by the fact a number of COs referred to a distractive strike in the body of their Occurrence Reports. Acting OM Heggie also testified that he had no concern with the grievor’s actions, and would be surprised to be told that such actions were not permitted. In his view, it was permissible to hit an inmate in the face with a hand in the circumstances then existing in the Security Hall;
iii. CO Bauman’s evidence that inmate P.S. was told a number of times to give up his hands to be cuffed, but refused. CO Bauman also testified that he observed the grievor deliver an “open hand palm strike”, and that such action facilitated the handcuffing of the inmate. Counsel argued that, in respect of the former point, CO Bauman’s evidence was unchallenged. He also noted that this witness was supportive of the grievor’s version of events, despite being the CO who was earlier “pranked” by the grievor. It was CO Bauman’s evidence that he was not troubled by what he saw the grievor do. Indeed, he asserted it was “a perfect fit” and was entirely appropriate. He added that he would be surprised to learn that a CO cannot employ a distractive strike in the circumstances existing on May 17, 2008;
iv. The evidence of COs Petroni, McGhee and McArter, who all testified that what the grievor did was reasonable in the circumstances and would be surprised to be told otherwise;
v. The evidence of CO Martinho who asserted that the distractive strike used by the grievor was not excessive, and that the grievor used the least force necessary. CO Martinho had no recall of ever being informed that a CO could not use a distractive strike in the circumstances confronting the grievor. Counsel observed that this CO was relatively new to the position and had just recently been trained; and
vi. The evidence of CO Chauvin who testified that the same techniques are available to a CO regardless of whether an inmate is standing or on the ground.
[ 151 ] Counsel for the Union also commented on the evidence presented by the Employer’s witness. It was his assessment that none of the witnesses said they had never used a distractive strike in similar circumstances because it was not permitted. Rather, they had never been faced with the need to resort to the technique. Counsel submitted that the grievor was being held to a different standard. Ultimately, it was his submission that it would be unjust to conclude that the grievor’s actions during the final phase of the incident were wrong, inappropriate or excessive. To the contrary, he argued that what the grievor did “fit the circumstances” and was instrumental in achieving compliance.
[ 152 ] Counsel acknowledged that a finding of excessive force can be made in the absence of any resulting injury. He, nevertheless, referenced the following facts with respect to the inmate’s injuries: no witness could say that the injuries were caused by the grievor’s actions; the grievor was not involved in the take down; other COs were in physical contact with inmate P.S. both during the take down and while on the floor; none of the COs present when the inmate got up from the floor, or when he was taken to the Segregation Unit, observed any injuries to his facial area; RN Imeson only observed an injury to the inmate’s left eye, and did not observe a red mark on the right cheek, when she visually examined him from outside the cell; and the photographs subsequently taken by CO Davenport did record the aforementioned red mark. Counsel also referenced the evidence of RN Imeson to the effect that it is not uncommon for inmates to injure themselves and then try to blame correctional staff for same. He suggested that this is what likely occurred in this instance.
[ 153 ] For all of the above reasons, counsel asked that the grievance be allowed and that the grievor be reinstated with full back pay and benefits. It was his submission that reinstatement should necessarily follow a finding that the grievor did not use excessive force against inmate P.S. He maintained that this was not the type of exceptional case where damages should be awarded in lieu of reinstatement. Indeed, from counsel’s perspective, such alternate remedy would be completely unjust.
[ 154 ] The Union provided the following authorities in support of its position: OPSEU and Ministry of Correctional Services (Sammy et al.), GSB No. 0224/01 (Harris); Re United Steelworkers of America and Aerocide Dispensers Ltd. (1965), 1965 CanLII 980 (ON LA), 15 L.A.C. 416 (Laskin); Re A.B.F. Freight Systems (B.C.) Ltd. and General Truck Drivers and Helpers’ Union, Local 31 (1987), 1987 CanLII 8799 (BC LA), 28 L.A.C. (3d) 246 (McPhillips); OPSEU and Ministry of the Solicitor General and Correctional Services (Rate), GSB No. 706/96 (McKechnie); OPSEU and Ministry of Correctional Services (Rankin), GSB No. 1508/88 (Verity); Re Tenant Hotline and Peters and Gittens (1983), 1983 CanLII 4854 (ON LA), 10 L.A.C. (3d) 130 (MacDowell); ThyssenKrupp Elevator (Canada) Ltd., [2006] O.L.R.D. No. 1818 (Jesin).
[ 155 ] The following submissions were made on behalf of the Employer in reply:
i. Counsel referenced the Union’s reliance on the fact that CO training does not expressly prohibit the use of force against an inmate who is not complying with a direction to give up their hands to be cuffed. In response, she stressed that Regulation 778 is very specific to the effect that no employee shall use force against an inmate unless required for one of the four (4) enumerated purposes. Counsel submitted that these purposes do not contemplate the use of force against an inmate who is offering resistance to being handcuffed;
ii. The appropriateness of the grievor’s actions must be measured against an objective standard. Counsel argued that such actions cannot be evaluated solely on the grievor’s subjective belief he was being threatened and was compelled to act as he did. With respect to the initial phase of the incident, she asserted that there was no reason for the grievor to attempt a strike at inmate P.S. while they were under the bulkhead. On her view of the video, the grievor was the aggressor in a situation in which the inmate was not presenting any real threat;
iii. Counsel distinguished the grievor’s Occurrence Report from those provided by other staff involved in the incident. She suggested that a review of the video record demonstrated that the grievor’s inaccuracies were self-serving and intentional. In her words, they were “significant and not miniscule”;
iv. Counsel further referenced the Union’s argument that the investigation took an unreasonable period of time to complete. In response, she observed that a decision to terminate a CO is a very important matter and needs to be approached in a deliberate fashion; and
v. The Employer’s loss of trust in the grievor has to be considered within the context of a Jail. Counsel suggested that the need for trust is elevated in this type of facility.
[ 156 ] During the course of the hearing, there was a dispute between the parties as to what conduct the Employer intended to capture by way of allegations #1 and #3 contained in the letter of termination dated December 1, 2008. After receiving and considering the submissions of both counsel, I ruled that the allegation the grievor used excessive force against inmate P.S. was restricted to the grievor’s actions while the inmate was on the ground during the third phase of the incident. I further ruled that the allegation the grievor violated the Statement of Ethical Principles encompassed both the grievor’s initial movement towards the inmate during the first phase of the incident and his interim actions during the second phase in which he re-engaged with inmate P.S. in the Security Hall. When delivering this ruling, I noted the Employer’s acknowledgement, made early on in the proceeding, that it was not taking the position that the grievor’s strike at the inmate, while they were in the area of the bulkhead, actually made contact.
[ 157 ] I accept on the authorities cited that the onus is on the Employer to prove its case through clear, convincing and cogent evidence. This is especially so, in a case such as this, where a finding that the grievor used excessive force against the inmate will likely put an end to his career as a CO. Accordingly, the evidence must be closely examined and assessed to ensure it satisfies this somewhat higher threshold. In Beltrano et al., Vice-Chair Petryshen commented as follows with respect to the standard of proof required:
“138 I agree with the Union’s submission that the appropriate standard of proof when addressing these types of issues is higher than the simple civil burden of ‘on the preponderance of the evidence’. Although the grievors were not charged criminally, the Employer has alleged that the grievors physically assaulted an inmate without justification. In cases involving serious allegations of this sort, most arbitrators have utilized a test that is higher on the balance of probabilities scale, although short of the criminal standard of beyond a reasonable doubt. I find therefore that the Employer in this case is required to prove its allegations with clear and cogent evidence. Counsel for the Employer did not suggest otherwise.”
The above described standard was also applied in Rate, Gillis et al. and Re A.B.F. Freight Systems.
[ 158 ] This case is different from those cited to me in the sense that the events which occurred on May 17, 2008 were captured by cameras # 1 and #7. The video recordings were also used to create still photographs and enlarged photographs of the events comprising the incident. All of these sources of information were reviewed numerous times during the course of this lengthy hearing. Additionally, this Vice-Chair has reviewed and assessed them at length during my deliberations.
[ 159 ] As noted earlier, Inspector McNair did not rely on camera #2 in the Sallyport or camera #6 in the Inmate Visit Room as part of his investigation. I was, however, provided with video recordings made from these two (2) cameras by OM Vallee on January 21, 2010. Having looked at these recordings, I think it is difficult to determine whether camera #2 would have captured the third phase of the incident given that it took place on the floor immediately in front of the Sallyport door. I am inclined to think that it would not likely have recorded that part of the incident. This camera, though, might possibly have caught the takedown by COs McGuire and McGhee close to the Sallyport door, as well as the grievor’s arm coming out of the bulkhead earlier on. Video of these two (2) events would not have significantly added to my understanding of what occurred given that they were sufficiently recorded by cameras #1 and #7. Additionally, camera #6, positioned inside the Inmate Visit Room, would only have captured people standing in the open doorway from just above the knees and down. I accept Union counsel’s suggestion that this camera, if resorted to, might have shown how close inmate P.S. was to the grievor when they were both in the bulkhead area during the initial phase of the incident.
[ 160 ] While resort to these other two (2) cameras might have been helpful, I am satisfied that the recordings from cameras #1 and #7, together with the other available evidence, are sufficient to permit me to assess and determine what in fact occurred between the grievor and the inmate on May 17, 2008.
[ 161 ] Having considered all of the evidence, including the video recordings and the photographs produced therefrom, I find that the three (3) phases of the incident occurred as set out below.
First Phase
[ 162 ] - The grievor is initially seen approaching the door to the Inmate Visit Room from the Security Hall. He proceeded to open that door and then to hold it open;
Inmate P.S., after exiting from the Inmate Visit Room, remained in the area of the bulkhead and was in relatively close proximity to the grievor. The grievor, at this juncture, continued to hold the door open and was looking into the Inmate Visit Room, presumably at inmate S.S. who was still inside;
At 10:29:35 a.m., the grievor turned his head towards the Security Hall. Inmate P.S. was then just inside the bulkhead. He appeared to be walking into the Security Hall with his head turned back towards the grievor, as if he was saying something to him;
At 10:29:37 a.m., the inmate had turned and was facing the grievor from outside the bulkhead. He again seemed to be conversing with the grievor in a somewhat animated fashion. Inmate P.S. seemed to be smiling or smirking at the time;
By 10:29:39 a.m., inmate P.S. had turned back somewhat with his body facing the interior of the Jail. His head was still turned towards the grievor. The grievor’s arm and hand is then observed coming through the bulkhead towards the inmate’s head and facial area. Inmate P.S.’s arms went up in an apparent attempt to protect himself. By 10:29:40 a.m., the inmate had backed up a step or two, and was facing the grievor with his arms down. He then continued to backup;
At this point, the grievor moved towards the emergency alarm located on the wall outside of the two (2) Interview Rooms in the hallway leading to the Resource Room. He pushed the alarm at 10:29:43 a.m. and then proceeded into the Security Hall;
At 10:29:44 a.m., the inmate is seen walking away from the area towards the rear of the Jail with his arms by his side.
[ 163 ] I did not observe any physically aggressive act on the part of inmate P.S. during the first phase of the incident. To the contrary, the sole act of aggression shown on the video was the grievor’s right arm and hand coming through the bulkhead towards the inmate’s head and facial area. Like Inspector McNair, I did not see the grievor push inmate P.S. backwards in the chest area with an open hand. As mentioned, the movement was towards the latter’s head and face and was done, in my view, with what appeared to be a closed fist. It is unclear and uncertain whether this strike made contact with the inmate.
[ 164 ] The computer generated images provided by the grievor appear blurred and distorted. I am left with considerable uncertainty as to what they actually depict. In my judgment, they are not sufficiently clear to justify any reliance being placed on them. In this regard, I accept the Employer’s submission that the images do not represent an enhancement, as claimed by the Union. Ultimately, I find the video and photographic evidence to be more persuasive.
[ 165 ] At the time the grievor made the above-described movement, the inmate was in the process of moving away from him. I cannot find support for the grievor’s assertion that he believed inmate P.S. was about to move forward and assault him. I note that when the grievor attempted to strike at inmate P.S., the latter was actually further away from him than before. To be clear, I did not see the inmate take a swing at the grievor during the first phase of the incident. His actions appeared to be more defensive in nature.
[ 166 ] I accept that inmate P.S. made insulting, demeaning and inappropriate comments to the grievor while they were both in the bulkhead, including asking the grievor whether he had “to get the piss out”. If the grievor perceived the latter comment as a threat, he should have known that the inmate did not have the immediate ability to carry it out. If he truly felt threatened, the grievor should have moved back earlier to the alarm prior to physically engaging the inmate. At the time, he was clearly aware that other COs were close by. In this regard, I accept Mr. Ireland’s opinion that the use of force was neither necessary or justified at the time. I consider it more likely than not that the grievor attempted to strike the inmate out of anger because of his disrespectful remarks. I note that inmate P.S. did not have any physical contact with the grievor prior to the strike here in issue.
[ 167 ] In summary, I am satisfied that what was captured by the video cameras is inconsistent with both the content of the grievor’s Occurrence Report and the evidence he presented at the hearing on several material points.
Second Phase
[ 168 ] As mentioned above, at 10:29:44 a.m. the inmate was walking away from the grievor and proceeding down the Security Hall towards the rear of the facility. CO Davenport appeared in the Security Hall shortly thereafter, at which time the grievor and the inmate were physically engaged. Within a matter of seconds, COs McGuire and McGhee entered the Security Hall and positioned inmate P.S. up against the corner of the doorway leading to the Sallyport. At 10:29:49 a.m., the video shows the grievor falling backwards to the floor.
[ 169 ] From the evidence, I conclude that the grievor initiated the physical confrontatation with inmate P.S. during the second phase of the incident. On my view of the video and photographic record, he threw the first blow. I accept that this inmate then responded in kind. I reject, however, the grievor’s assertion that he did not swing at the inmate and was, instead, just trying to restrain him by grabbing his arms and shoulders. That version of events is not supported by the video record.
[ 170 ] I find that there was no real need for the grievor to physically confront the inmate, as the inmate was walking away from him with his hands at his side. At that juncture, the grievor had already pushed the emergency alarm and could have anticipated that assistance would arrive within a few seconds, as it ultimately did. I have not been persuaded that he needed to act instantaneously in order to stop the inmate from proceeding further into the Jail. At that point, there was no real risk of imminent escape or of an assault to some other person. It is my assessment that the grievor simply elected to continue the aggressive posture from phase one.
Third Phase
[ 171 ] COs McGuire and McGhee were able to take inmate P.S. to the ground by 10:29:51 a.m. CO McGuire was holding the inmate down. The inmate’s body was resting on top of CO McGhee’s leg, as the latter had tripped backwards on the way to the floor. By 10:29:53 a.m., the grievor was kneeling down in close proximity to the inmate’s body. The video depicts the grievor’s right arm being pulled back and then moving forward towards the inmate’s upper body, while the inmate was still prone on the floor. At that time, there were four (4) other COs in the immediate area. I note that the grievor acknowledged that he delivered “an open hand, right hand distractive strike to the top of P.S.’s left side between the side and top of his head with the meat of my hand”. He also described the action as “a straight open hand strike to the top of his head”. Other COs, OM Mitchell and Acting OM Heggie all then arrived in short order. Inmate P.S. was controlled, handcuffed and then escorted out of the area to Segregation.
[ 172 ] It is difficult to see from the video whether the grievor struck inmate P.S. with an open hand, as claimed, or whether the strike was delivered with a closed fist. The sole witness who was able to testify on this point was CO Bauman. His evidence was that the grievor gave the inmate “a facial distraction” by way of “a palm strike with the right hand”. The other witnesses either did not see the strike or could not say whether the grievor’s hand was open or closed. It is also hard to determine from the video if more than one (1) strike was delivered by the grievor.
[ 173 ] The question as to whether the grievor’s hand was open or closed, while relevant, is not ultimately material. I accept Mr. Ireland’s expert assessment that a distractive strike should not have been employed to the inmate’s face while he was on the ground, even if open-handed. I prefer his evidence on this issue to that presented by Acting OM Heggie and COs McGhee, Bauman, Chauvin, Martinho, McArter and Petroni. I note that the evidence of OMs Lewis and Vallee and Acting OMs Varney and Kitchen was consistent with Mr. Ireland’s opinion. Additionally, I am satisfied that there was no need for the grievor to deliver the distractive strike. At the time, the inmate was on the ground and was surrounded by four (4) other COs. I am left with no doubt that this group of COs could have taken control of inmate P.S. without any need for the strike here in question.
[ 174 ] As stated above, I find that the strike was delivered at 10:29:53 a.m. During the course of his evidence, the grievor seemed to suggest that the movement of his arm at that time reflected an effort to secure the cord to his radio which had fallen loose. I remain unconvinced that the cocking of his arm was for that stated purpose. On my view of the video and photographs, the grievor reattached the cord after he delivered the strike to the inmate.
[ 175 ] Lastly, I conclude that the incidents of June, 1998 and June, 2009 as described by OM Vallee and Acting OM Varney, respectively, are distinguishable from what occurred on May 17, 2008. In both of those incidents, strikes were delivered because the inmates were actively involved in assaulting COs.
[ 176 ] In my judgment, the use of force employed by the grievor on May 17, 2008 was not authorized under section 7 of Regulation 778 of the Ministry of Correctional Services Act. His actions were also contrary to the Adult Institutions Policy and Procedures Manual, as they were not defensive or absolutely necessary in the circumstances. On the evidence, there was no immediate threat to the grievor’s personal safety. Other options could, and indeed should, have been resorted to as an alternative to the use of force. I am inclined to accept that the grievor likely acted as he did, during all phases of the incident, in an effort to punish the inmate for the inappropriate comments made while they were both in the bulkhead area. The grievor’s actions similarly contravened the Standing Orders of the Windsor Jail, as he used more force than was necessary to restrain inmate P.S., particularly in respect of the third phase of the incident.
[ 177 ] As previously determined, I am satisfied that the grievor was fully aware of the limitations regarding a CO’s use of force against an inmate. Ultimately, I have been persuaded that the grievor breached the Statement of Ethical Principles through his actions during the first two (2) phases of the incident. Additionally, I find that the force used during the third phase, while the inmate was on the ground, was neither reasonable or authorized. Rather, after considerable thought, I conclude that it constituted an excessive use of force. The grievor did not act in a defensive manner. Instead, he was the aggressor throughout the course of the incident on May 17, 2008. The grievor did not first try to seek a peaceful resolution. All of this was contrary to the basic training he received in 2002, as described by Mr. Ireland, as well as the refresher training provided thereafter.
[ 178 ] I note that none of the witnesses to the events in the Security Hall observed any injuries to the inmate at the time. Shortly thereafter, RN Imeson performed a visual inspection of inmate P.S., through a window of his Segregation cell, and recorded swelling and bruising to the left upper eye lid. She did not then notice or record any injury to the right cheek, as shown in the photographs taken by CO Davenport later that morning.
[ 179 ] It is apparent that the injuries sustained by inmate P.S. were relatively minor in nature and did not require treatment or medication. That fact, however, does not preclude a finding that the inmate was subjected to excessive force; see Horan. Such a finding must be made only after a careful assessment of a number of relevant matters, including the nature of the force used; the circumstances then confronting the CO; whether the inmate posed an immediate threat to the CO or others; the availability of other options; and the appropriateness of the response in the context of the restrictions placed on a CO’s use of force by legislation and policy. In this instance, I determine that the grievor used excessive force while the inmate was on the ground notwithstanding that the resulting injuries were minimal.
[ 180 ] I recognize that inmate P.S. was not watched in the Segregation cell pending RN Imeson’s arrival and CO Davenport’s subsequent attendance there to take photographs. After considering all of the evidence, I think it likely that the swelling and bruising observed by the RN was the result of the grievor’s admitted “distractive strike”. The location of the injury is entirely consistent with the respective positions of the grievor and the inmate at the time of the strike to the latter’s facial area. If this inmate was prepared to self injure himself for purposes of prejudicing the grievor, it is likely that he would have occasioned a more dramatic injury for the camera and record.
[ 181 ] I accept that the incident of April 13, 2008, during which another inmate threw a cup of urine in the grievor’s face, was a serious matter and of real concern to the grievor. I note, however, that the grievor was able to return to work following the incident without missing any scheduled shifts or requiring any accommodation. I think it likely that this earlier incident contributed to the grievor’s excessive response on hearing the inmate twice ask him “do I have to get the piss out”. It is very likely that the grievor took real offence on hearing this comment, and that such anger motivated him to strike out at the inmate in an unauthorized and unprofessional manner.
[ 182 ] On the evidence, I am satisfied that the grievor prepared an incomplete and inaccurate Occurrence Report contrary to the requirements of section 7(3) of Regulation 778, the Standing Orders of the Windsor Jail, and the Adult Institutions Policy and Procedures Manual. As previously determined, the grievor was aware of the need to file a complete and accurate report concerning incidents of the type which occurred on May 17, 2008. Nevertheless, his Occurrence Report failed to meet the required standard.
[ 183 ] The deficiencies in the grievor’s Occurrence Report included the following:
i. The video record does not show that the grievor pushed inmate P.S. backwards in the chest area with an open hand, as claimed. Instead, the movement was towards the inmate’s facial area with what appeared to be a closed fist;
ii. After the grievor sounded the emergency alarm, I did not see on the video that inmate P.S. took a step towards the grievor in a fighting stance with both fists in the air. Rather, at that point, the inmate was starting to walk away from the grievor down the Security Hall; and
iii. The grievor failed to acknowledge that he was the aggressor during the second phase of the incident. As I read his Occurrence Report, he stated that he initially put his hands up in defence of future strikes from the inmate. On my review of the video, it was the grievor who pursued inmate P.S. down the Security Hall and initiated a physical confrontation. It was only at that stage that the inmate responded in kind.
[ 184 ] I find that the grievor had sufficient time to complete a proper Occurrence Report. On the evidence, he started to prepare it at 10:54 a.m. and returned the completed document to OM Mitchell at 12:45 p.m., a period of approximately two (2) hours. I note that the grievor had been relieved from his duties to give him the opportunity to complete an Occurrence Report about the incident. If, for various reasons, the grievor felt that he required additional time, he should have asked for same. It is also unclear from the evidence if the grievor actually asked to see the video prior to starting work on his Occurrence Report. In the final analysis, I do not find the grievor’s explanations for why the document might be deficient to be persuasive. I further note that the grievor never filed an Addendum despite his later acknowledgement that his Report was not entirely accurate.
[ 185 ] I also reject the suggestion that OM Mitchell was out to get the grievor. I cannot find that OM Mitchell, in any way, improperly influenced the decision of Superintendent Marsh to terminate the grievor’s employment. The facts and information considered by the Superintendent have been outlined earlier in this Decision.
[ 186 ] I recognize that all of the Occurrence Reports submitted by both COs and OMs pertaining to this incident were deficient in certain respects, and that the grievor was the only person disciplined for this reason. In my view, there is a material distinction between omissions and falsifications. On my reading, the Occurrence Reports of the other individuals largely involved omitted matters that could be easily discerned from other available sources, such as the video. In contrast, I find that the content of the grievor’s Occurrence Report reflected a deliberate and self serving attempt to hide or minimize his objectionable behavior. Notwithstanding this conclusion, I do not think that this alone would have supported a decision to terminate the grievor. Taken singularly, some lesser discipline would have been in order. The nature and content of the grievor’s Occurrence Report is, however, a relevant consideration in determining whether Superintendent Marsh’s decision was justified given all of the circumstances.
[ 187 ] The grievor’s disciplinary record was considered by Superintendent Marsh as part of his decision making process. It was specifically referenced in the letter of termination of December 1, 2008. I do not construe that letter, however, as reflective of an intent on the part of the Employer to treat the events of May 17, 2008 as a culminating incident, as that term is commonly understood. On my reading, the Superintendent determined that the specific allegations complained of were sufficiently serious on their own to justify termination. He further concluded that the grievor’s past disciplinary record suggested that he could not likely be rehabilitated as a trustworthy employee, and that nothing short of termination would likely be effective as a corrective sanction. The record, in my judgment, was used for purposes of progressive discipline and not for the purpose of applying the doctrine of culminating incident. It is unnecessary to comment further on this given my conclusion that the grievor used excessive force against inmate P.S. during the third phase of the incident; breached the Statement of Ethical Principles during the two (2) earlier phases; and intentionally filed an incomplete and inaccurate Occurrence Report for self-serving reasons. This misconduct, in view of the prior discipline record, supports Superintendent Marsh’s decision to terminate the grievor’s employment as a CO at the Windsor Jail.
[ 188 ] Like Superintendent Marsh, I am unable to isolate any mitigating circumstances that would support the imposition of some lesser discipline. I have not been persuaded that the grievor “owned up” to his mistakes and that he has learned from them, as claimed. Given this conclusion, there is no need to address the Employer’s second alternate argument that damages should be awarded in lieu of any reinstatement.
[ 189 ] The grievor, as previously mentioned, filed two (2) grievances dated June 4, 2008. He asserted therein that he received inadequate support and assistance following both the urine incident of April 13, 2008 and the incident with inmate P.S. on May 17, 2008. After considering the evidence relating to both matters, it is my decision to deny these grievances. With respect to the earlier incident, I note that the grievor was able to return to work without missing any shifts or requiring any accommodation. It does not appear that he ever spoke to management about the possible need for any personal support and assistance. On the evidence, OM Vallee did contact the grievor shortly after the incident to see how he was doing. With respect to the later incident involving inmate P.S., there is no evidence that the Employer was told, or was even aware, that the grievor may have required support and assistance as a consequence of the incident. The record discloses that the grievor did take advantage of the EAP. Ultimately, I find that the Union is not entitled to the declarations sought.
[ 190 ] The grievance of June 12, 2008 claimed that the Employer subjected the grievor to a CISU investigation interview on June 9, 2008 that was harassing, intimidating and designed to arrive at a prearranged result. Union counsel’s argument on this issue is set out in paragraph [136] v. of this Decision. I am inclined to agree with the submission that Inspector McNair twice put inaccurate information to the grievor while questioning him. While I have some concerns about this occurring, I do not think that it constituted an abuse of the investigative process. Without definitively deciding the point, these missteps may have been a product of the large volume of detail collected from the various interviews and the consequent difficulty of keeping track of all of the specific comments of the individuals involved. They may also have resulted from Inspector McNair’s relative inexperience in conducting excessive use of force investigations on his own. I have not been persuaded, though, that Inspector McNair was biased against the grievor or that he was out to get him. Rather, I think it likely there was some tension between them during the interview as the Inspector found it difficult to reconcile the grievor’s account of events with what was recorded by the video cameras. I reject the submission that all of Inspector McNair’s evidence should be viewed as tainted and that the grievor is entitled to an award of general damages because of the way the interview of June 9, 2008 was conducted.
[ 191 ] While on the subject of the investigation process, there were two (2) other concerns raised. First, Union counsel submitted that Inspector McNair should have spoken to the Control Room Officer in an effort to discover what, if anything, he saw directly or through the various monitors. I accept that this should have been done. I do not, however, consider the failure to do so as a fatal flaw. In my judgment, the recordings from cameras #1 and #7 provide sufficient evidence of what occurred during the incident of May 17, 2008. Second, Union counsel was critical of Inspector McNair for referencing the Code of Silence during his evidence and for suggesting it inhibited the conduct of his investigation. I have not found it necessary to consider the Code of Silence at any length given the availability of the video and photographic record. I do note that the impact of the Code has been recognized in a number of Grievance Settlement Board Decisions, including in Beltrano et al., which arose out of a dispute at the Windsor Jail. In summary, while the investigation conducted by Inspector McNair was not perfect, I am satisfied that it was sufficient in the circumstances. Any errors that were made by him did not have a determinative effect, in the sense they led directly to Superintendent Marsh’s ultimate decision.
[ 192 ] The grievance of September 11, 2008 reads, in part:
“STATEMENT OF GRIEVANCE
I grieve that management subjected me to a CISU investigation which is now over three months (since my interview). My investigation meeting was June 9, 2008 and it is now September 11, 2008. The unreasonable delay in completing and delivering such an investigation has caused both financial and other hardship on myself and my family. I have been suspended from work since May 17, 2008 and unable to obtain hours. All attempts to find out about this timeframe have been met with resistance and lack of consideration for my circumstances.
SETTLEMENT DESIRED
Full redress.
That this investigation be completed immediately and I be reinstated with full compensation of monies for my regular hours, average of overtime, shift and other premiums as applicable……………………………………………..
[ 193 ] As indicated above, the Investigation Report relating to this matter was completed on September 22, 2008; the Allegation Meeting was conducted on October 29, 2008; and the grievor’s employment was subsequently terminated on December 1, 2008. The Union relies on the Decision in Sammy et al. in support of the position that the investigation and the follow-up was excessively delayed. That case involved an application for interim relief, in the form of monetary compensation following the suspension without pay of several unclassified COs pending investigation of an incident which occurred on February 2, 2001. The investigation, in that instance, commenced on February 3, 2001; all interviews were completed by May 23, 2001; and the final report was delivered to the Employer on July 24, 2001. It appears that the Employer there had not acted on the report by the time the application for interim relief was heard by the Grievance Settlement Board on September 5 and September 18, 2001.
[ 194 ] The Union in Sammy et al. submitted that there were substantial periods of inaction by the Employer in its investigation which caused significant hardship to the grievors. After hearing evidence and submissions on the respective interests relevant to the interim application, Vice-Chair D.A. Harris concluded that the balance of harm favoured an order that the grievors be compensated from and after August 1, 2001. His Decision reads:
“From a labour-relations perspective, and for the purposes of this interim order, I take it that the Employer had a legitimate interest in thoroughly investigating the allegations arising from the incident of February 2, 2001. It promptly initiated the investigation by appointing Mr. Ewing to complete it. There is no evidence before the Board that he did or did not do so in a timely fashion………………………………….
From and after the tendering of his report to the Employer on July 24, 2001, there was a requirement upon the Employer to act with dispatch in dealing with the allegations contained in the report. Once the Employer was fixed with the results of the investigation, it had an obligation promptly to make final decisions with respect to the status of the grievors. That is so whether the suspensions are taken to have been pursuant to the Public Service Act or a management right. The authority to suspend under the Act is during the period of the investigation, which came to a close after the Employer had a reasonable period of time to inform itself of the results of Mr. Ewing’s efforts. His report was available July 24, 2001. Managements’ rights are a labour-relations concept that is tempered by the law. The principle that delay is harmful to labour-relations is well established.”
(page 9)
-and-
“…………….This decision is made on the basis of the detrimental labour-relations consequences of the Employer’s delay in dealing with the results of its investigation. The grievors ought not to bear the cost of that delay pending the hearing on the merits…………………………………...
(page 11)
[ 195 ] I recognize that the above comments were made in the context of an application for interim relief, which required Vice-Chair Harris to balance the competing interests of the parties. This is a different case here, as relief is being sought after a hearing on the merits relating to the grievor’s termination. Nonetheless, I find that his observations about the detrimental impact of delay on labour relations is similarly applicable to the present case.
[ 196 ] After considering the evidence, I have not been persuaded that there was unreasonable or undue delay between the commencement of the investigation on May 19, 2008 and the completion of the Investigation Report on September 22, 2008. This was a complex investigation which necessitated a significant investment of time and effort, particularly given the number of individuals involved. Additionally, some of the delay which occurred in this period was likely related to the fact that the criminal charges brought against inmate P.S. by the grievor were not heard in Court until late August, 2008. I do conclude, however, that there was excess delay between the completion of the Investigation Report and the grievor’s subsequent termination on December 1, 2008, some two (2) months later. I note that the Allegation Meeting was not held until October 29, 2008 and that the decision to terminate was not communicated to the grievor until more than another month had elapsed. The reasons for the delay following receipt of Inspector McNair’s report went largely unexplained at the hearing.
[ 197 ] In the final analysis, I conclude that the Employer should have acted in a more expeditious fashion following the release of the Investigation Report on September 22, 2008. I conclude that the Employer had ample opportunity to assess the report, meet with the grievor and his representatives, and then communicate its ultimate disposition to him by October 31, 2008 at the latest. As a consequence, I determine that the grievor is entitled to financial compensation representing one (1) month of delay. As requested, I leave the requisite calculation of this to the parties. I will remain seized of the issue for purposes of implementation. This finding, as acknowledged by counsel for the Union, captures and encompasses the third grievance filed on June 4, 2008.
[ 198 ] In Beltrano et al., Vice-Chair Petryshen made the following observation:
“122 The duties of a CO include the care, custody and control of inmates and because of their role, COs are in a position of power and trust. In performing their duties, COs are confronted with many challenges, including health and safety risks. Inmates can often be physically and verbally abusive with each other and they can be verbally and physically abusive with COs. COs are trained to deal with the realities of an institutional setting, including how to deal with uncooperative, verbally abusive, and unpredictable inmates. The exercise of self-control is a necessary quality for a CO who will be confronted undoubtedly with provocative situations.
In this case, the grievor failed to exercise the required degree of self control and was the physical aggressor during the first two (2) phases of the incident. During the third phase he used inappropriate, unnecessary and excessive force against an inmate on the floor. His explanation as to the events, both in the Occurrence Report and in the evidence presented at the hearing was inconsistent, and in several material respects in conflict, with the video and photographic record. I am satisfied that the grievor’s conduct on May 17, 2008 and his subsequent lack of candour and remorse constitute a significant breach of trust and are indicative of an irrepairable breakdown in the employment relationship, all of which entitled the Employer to terminate his employment as a CO.
[ 199 ] For all of the above reasons, the grievance of December 1, 2008 is denied. The grievance of September 11, 2008 is allowed in part. All other grievances are denied.
Dated at Toronto this 27th day of September 2011.