PSGB# P-2018-1832; 2018-1833

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Roselle

Complainant

• and -

Thompson

Complainant

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Marilyn A. Nairn

Vice Chair

FOR THE COMPLAINANT

Andrew Camman Polishuk Camman & Steele Counsel

FOR THE EMPLOYER HEARING DATES

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel May 8, Dec. 3, 16, 2019; Jan 10, May 5, 6 Sept. 15, 21, Nov 9, 2020; Jan. 6, Feb. 9, 2021

Decision

1File No. P-2018-1832 is a complaint brought by Dawn Roselle challenging the decision of the Crown as represented by the Ministry of Community Safety and Correctional Services (now the Ministry of the Solicitor General) (the “Employer” or “MCSCS”) to terminate her employment on July 24, 2018.

2File No. P-2018-1833 is a complaint brought by John Thompson challenging the decision of the Employer to terminate his employment on July 24, 2018.

3The Employer initially took the position that Mr. Thompson was not eligible to file a complaint with this Board, asserting that he was a fixed term, irregular, on-call employee. On April 8, 2019, the Employer withdrew that preliminary objection and agreed that, although on a fixed term contract, Mr. Thompson had in fact been working a 40-hour per week scheduled slot and was eligible under Ontario Regulation 378/07 (the “Regulation”), made pursuant to the Public Service of Ontario Act, 2006, S.O. 2006, c. 35 as amended (the “PSOA”), to file a complaint with the Board. In the result, the parties agreed that these complaints should be consolidated and heard together. The hearing of the merits of the complaints proceeded accordingly.

4The decisions to terminate the employment of the Complainants arose in the context of the same incident, an incident that tragically ended with the death of an inmate in custody on Unit 8 at Central East Correctional Centre (“CECC”) on December 15, 2016. That inmate will be referred to as “Inmate S” throughout this decision.

5Documentary material was filed on consent, as well as security video of the corridor in Unit 8 during the relevant period. For privacy reasons, the interior of cells is not subject to video monitoring. This Vice-Chair, with counsel for the parties, also attended at CECC and took a view of Unit 8 and Cell #B10 where Inmate S died. The documentary material included copies of various Ministry policies, occurrence reports filed, correspondence, and notes from allegation meetings. In addition, interview summaries prepared by Correctional Services Oversight & Investigations (“CSOI”), transcribed excerpts of recorded CSOI interviews, as well as the CSOI report were also filed. In addition to the material filed, I heard testimony from four witnesses, Deputy Regional Director (“DRD”) Doug Houghton, who made the decisions to terminate the Complainants’ employment, Steve Clancy, CECC Staff Training Manager at the relevant time and now CECC Deputy Superintendent, Operations (DSO”), and both of the Complainants. On agreement of the parties, the hearing was conducted initially in person and, when public health restrictions intervened, by videoconference.

OVERVIEW

6Both Complainants were employed at the rank of Sergeant, front line managers at CECC, an adult correctional facility. Mr. Thompson was employed by MCSCS from 1978-2000, at which time he retired. He returned to CECC in December 2015, having spent the intervening 15 years working his farm. Ms. Roselle began her employment with MCSCS in July 2000 at Toronto East Detention Centre and was promoted to Sergeant and moved to CECC in December 2014. Neither had any discipline on their file when the decisions to terminate their employment were made.

7The allegations on which the Employer relied in making its decision to terminate Mr. Thompson’s employment are as follows:

-You withheld information in your occurrence report dated December 15, 2016 when you failed to report force used by you on [Inmate S] and force used by another Correctional Officer (CO) on [Inmate S].

-You jeopardized the safety and security of yourself, staff and [Inmate S], when you entered the cell and directed staff to prone [Inmate S] onto the floor to remove his handcuffs.

-You failed to properly manage the Use of Force incident when you left the scene while COs were inside the cell with [Inmate S] unsupervised.

8The allegations on which the Employer relied in making its decision to terminate Ms. Roselle’s employment are as follows:

-That on December 15, 2016, you improperly directed staff to move [Inmate S’s] handcuffs from the front to the rear while in a prone position.

-That you were untruthful to the Ministry Inspector when you stated that you did not see the spit hood on [Inmate S] until he was in medical distress and you re-entered the cell.

-That you jeopardized the health and safety of staff and [Inmate S] by directing staff to handcuff him to the rear and while in a prone position with leg irons and a spit hood on. This direction was contrary to policy and was not in accordance with the Ministry training you received.

-That contrary to policy, you exited the cell and left [Inmate S] in the prone position, handcuffed to his rear with leg irons and a spit hood on.

9In its opening statement, the Employer alleged that those in charge, these Sergeants, lost control of the situation and made decisions during that period of lack of control which, it asserted, led to the death of Inmate S.

10The core of the incident resulting in the Complainants’ termination from employment took place over a period of 14 minutes on the afternoon of December 15, 2016 between 3:03-3:17pm. Although Inmate S died in custody, the coroner was unable to ascertain a cause of death. A police investigation followed. Both Complainants were included as part of that investigation but no criminal charges were filed. The hearing of these complaints was delayed by the fact of that criminal investigation. Since this hearing concluded, Ontario’s Chief Forensic Pathologist undertook a forensic review and released his report on August 5, 2021. The parties agreed that I be provided with that report and I received it on September 10, 2021. The cause of death statement in that report provides: “Prone position restraint and musculocutaneous injuries sustained during struggle, exertion and pepper spray exposure in the setting of cardiomegaly and worsening symptoms of schizophrenia”.

11The context for the incident goes beyond those 14 minutes and is relevant for purposes of determining these complaints. The Ministry’s internal CSOI investigation drew a number of conclusions regarding deficiencies occurring or present in the lead-up to Inmate S’s death. Other than the Complainants, none of the other individuals interviewed in that investigation were called to testify. The CSOI interviews and report are hearsay, requiring careful consideration as to what weight, if any, ought properly be given to information contained therein.

12In reaching his decisions, DRD Houghton relied on the CSOI report and the summaries of statements included therein, as well as notes from the allegation meetings. He did not interview anyone, although he testified that he listened to a few audio tapes of interviews, although which interviews were not identified. He did not speak with the Complainants. His evidence was, in some instances, inherently contradictory. He testified that he would have done things differently, matters reviewed below, and was of the view that the larger context of the incident had no bearing on the Complainant’s actions or any disciplinary result.

13I have concerns that certain of Mr. Thompson’s evidence is not fully reliable. This is not a matter of credibility, but reliability. These events took place in December 2016. I am persuaded that Mr. Thompson was deeply disturbed and distraught by the outcome of that day. Over the intervening period, his health has deteriorated significantly and these proceedings were delayed in part as a result. His evidence about specific details and particularly the specific chronology of events occurring over such short period of time was somewhat confused. He volunteered that it was not until he saw the video a year later that he recalled that they had had to clear the cell, a matter reviewed below. I have therefore looked to other evidence, including the video, and have considered the documentary material before relying exclusively on testimony from Mr. Thompson with respect to the detailed chronology of those fourteen minutes. At the same time, I am persuaded that Mr. Thompson was a credible witness.

14A definitive detailed report of what occurred in the cell where Inmate S died is not part of this decision. Reports vary as amongst all who were present but certain key elements were not in dispute. There were also differing views at the time as to how Inmate S should have been moved. Many of those involved would likely agree that Inmate S should not have been at CECC at all, but in a secure psychiatric facility receiving appropriate treatment. The death of Inmate S is tragic, bringing his life to an early end and bringing untold grief and anger to his family and friends who knew him in an entirely different context from those charged with keeping him safe while in custody. At the same time, the death of a mentally ill inmate can have a profound impact on the lives of those working in the institution.

15This decision has been very difficult. The fact of Inmate S’s death speaks to significant and ongoing public policy issues regarding the availability of appropriate mental health services, and the resources or lack thereof available to correctional facilities, whether in respect of staffing, training, or infrastructure. At the same time, this decision is required to address the resulting employment dispute, the specific allegations of misconduct leading to the Employer’s decisions to terminate the employment of both Complainants. The death of an inmate in custody reflects a failure of the highest order. At the end of the day, there is no real dispute that both Complainants engaged in some conduct inconsistent with Ministry policy and procedure. Ultimately, this case is about the scope and characterization of that conduct and a determination of the appropriate penalty.

THE EVIDENCE

16The following is a summary of my findings with respect to the evidence.

Introduction

17Inmate S suffered from schizophrenia. He had a history of erratic and violent behaviour. According to the CSOI Report, and not disputed, Inmate S was remanded into custody at CECC on December 5, 2016 on charges of assault, aggravated assault, and uttering threats. According to the CSOI report, CECC failed to act on community OTIS alerts concerning Inmate S’s mental health status, such that his mental health history was initially unknown and he was placed in the general population.

18Inmate S was moved to segregation on Unit 2 late on December 6, 2016 after the institution apparently received a report identifying that Inmate S suffered significant mental health issues and that he had not been medicated for a significant period of time. It was not disputed that, following admission to CECC, the inmate’s mental health deteriorated considerably. Over the next few days, court appearances and visits with family were cancelled due to Inmate S’s behaviours.

19Sergeants are typically assigned to supervise certain units on their shifts, although they may be re-assigned as required. CECC was short-staffed. Mr. Thompson had been re-employed on an irregular, on-call basis, but was working a full-time slot on the schedule. He was assigned to supervise Units 1 and 2. On December 10, 2016, he had Mental Health Nurse (“MHN”) Jody-Lynn Cook attend Unit 2 to assess and help him communicate with Inmate S. Mr. Thompson initiated and submitted an Inmate Incident Report (“IIR”) documenting the inmate’s condition. The CSOI report describes and this was confirmed by Mr. Thompson in his testimony that Inmate S was naked except for boxer shorts, defecating in his cell, spreading feces over the walls, and eating his feces. He had urinated on the cell floor making it slippery and he was observed washing his face in the toilet and/or drinking water from the toilet. He was also observed talking to himself, yelling, and exhibiting aggressive behaviour. These behaviours represented heightened health and safety risks for both Inmate S and staff and created additional work for correctional staff to properly house and monitor Inmate S.

20Early on December 11, 2016, Sergeant Moss was able to persuade Inmate S to shower, where, according to the CSOI report, he remained under supervision for holding purposes for almost four hours, while an attempt was made to find an alternate cell. He was then moved to a clean cell in a different area on Unit 2. A court order for a psychiatric assessment was issued on December 12, 2016 but the date scheduled for that assessment was not until December 19, 2016.

21On December 13, 2016, medical staff determined that Inmate S should be moved to Unit 8, as his cell was again unfit and he could be better observed on Unit 8. Unit 8 is the main segregation unit at CECC. Unit 2B provides overflow segregation cells. There is also more opportunity for inmate self-harm on Unit 2 as the cells are outfitted with metal bunk beds and metal shelving. The beds in Unit 8 are a platform and there is no shelving. Deputy Superintendent of Segregation and Security (“DSS”) Tamara Easto, filed an occurrence report that stated Inmate S had plugged his toilet with his clothes, flooding his cell with water, and that he was speaking incoherently. According to her CSOI interview, she described that it “was very easy to see that this man was ill” and that he “clearly was in distress”.

22Mr. Thompson was persuaded that Inmate S should be in hospital. He had raised the issue and been told that Inmate S was to be moved to Ontario Shores Centre. He was off work and on his return learned that Inmate S was still in the institution. Mr. Thompson described that there were medication and restraint options available in a hospital setting that are prohibited in the correctional setting. He described that when someone was in crisis one tried to keep them calm but that they were usually beyond any self-control and trying to restrain them was difficult.

23It appears that attempts had been made to find a bed for Inmate S at the psychiatric facility but none were available. I have no evidence as to whether consideration was given to transferring Inmate S to hospital on an emergency basis. Medication was administered on December 13, 2016 but would take 72 hours to take effect. The evidence was that little change was apparent in Inmate S’s behaviour to December 15, 2016.

24On December 14, 2016 Mr. Thompson was assigned by Deputy Superintendent, Operations (“DSO”) Jarrett Merriam to cover Unit 8 due to a sick leave. Although Inmate S was to be moved to Unit 8, no cells were available and the transfer had to be delayed. On December 14, 2016 a family visit was cancelled for the third time as Inmate S was unfit to attend due to his behaviour.

25On December 15, 2016, DSS Easto ordered Mr. Thompson to move Inmate S from Unit 2 to Unit 8 that day. This is the transfer that ended in Inmate S’s death.

December 15, 2016

26On December 15, 2016, and prior to leaving Unit 8, Mr. Thompson directed correctional staff to move an inmate from cell #B10 to cell #B2 and prepare cell #B10 in anticipation of inmate S’s arrival on the unit. This was a typical direction to COs on the unit. Cell #B10 was apparently chosen as the water could be turned off, a necessary feature so as to avoid Inmate S flooding the cell. Preparing the cell would include engaging a search of the cell and clearing it of all items so as to ensure that there was nothing in the cell that could cause harm to the arriving inmate or staff.

27Mr. Thompson left the unit and sought assistance from Health Care Manager (“HCM”) Kathy Goard to transfer Inmate S. Mr. Thompson described his concerns that Inmate S had been aggressive and that he was agitated all the time. Mr. Thompson could not have a conversation with him, as he described that Inmate S would fling himself against the door and not be taking in any instruction. Having HCM Goard present seemed to provide some calming effect. Mr. Thompson testified that he and CO Joyce, and likely another CO escorted Inmate S from Unit 2 to Unit 8. CO Ayotte was Acting Sergeant (“ASgt”) on Unit 2 that day. Other reports noted that ASgt Ayotte was involved in the transfer from Unit 2 to Unit 8. They wrapped Inmate S in a bed sheet as he was covered in feces and put him in a wheelchair, a device not typically utilized to move inmates, but one that appeared to prove effective. If Inmate S tried to stand up, Mr. Thompson testified they were able to sit him back down.

28Apart from its recreation area, Unit 8 is a T-shape. A hallway representing the arms of the ‘T’ houses cells. The control module is at the middle of that hallway. Offices are located down the stem of the ‘T’ and that second hallway must be traversed to move to other areas in the institution.

29Inmate S acted up intermittently on the way to Unit 8 but Mr. Thompson testified that the inmate was “okay” and they were able to move him to a shower on Unit 8. Two small shower rooms are located just inside the unit near the module.

30Once in the shower however, Inmate S started to spit at staff and throw shampoo and water at staff. After a time, a transparent ‘welding’ shield was placed in front of the shower door so that supervision could be maintained without staff being affected by these behaviours. According to Mr. Thompson and uncontradicted by other evidence, Inmate S was becoming more aggressive and he was uncommunicative. Mr. Thompson asked RN Hayley Hancock to speak to Inmate S and she advised that the inmate would leave the shower once the water was shut off, but apparently due to a plumbing issue, the water could not be shut off at that time and Inmate S would not voluntarily leave the shower.

31Mr. Thompson contacted DSO Merriam and requested that the Institutional Crisis Intervention Team (“ICIT) be used to move Inmate S from the shower to his cell. Neither Mr. Thompson nor the COs on the unit felt comfortable moving Inmate S due to his aggression and the inability to communicate effectively with him. Inmate S’s first language was not English, so effective communication and understanding was made even more difficult. In addition to being incoherent at times and yelling, Inmate S would variously use both his languages. Mr. Thompson was aware that ICIT was in the institution that day undergoing training and he spoke to Sgt Campbell, the ICIT Coordinator, regarding his concern that Inmate S should be moved by ICIT.

32For reasons that are not clear, DSO Merriam contacted then DRD Patterson, who recommended that a crisis negotiator first be utilized to get Inmate S out of the shower and into the cell. The evidence disclosed that DSO Merriam was the Superintendent’s delegate and had the authority to activate and deploy ICIT without authorization from the Regional Office. Absent a crisis negotiator, DRD Patterson suggested that the mental health nurse or a psychologist be called on to speak to inmate S. While it appears that DSO Merriam believed that a negotiator would be unable to attend the institution due to inclement weather, CO O’Sullivan, a trained crisis negotiator, was present in the institution and subsequently responded to the code blue called in connection with Inmate S’s transfer. CO O’Sullivan’s occurrence report states that DSS Easto asked her at 1450 hours to remain on call in the institution with respect to an unrelated matter. It is not known whether this was communicated to DSO Merriam. DSO Merriam contacted Dr. Krystal Kelly, a psychologist, who attended Unit 8.

33The CSOI report concluded that DSO Merriam failed to activate ministry negotiators to negotiate with Inmate S. It was not disclosed whether those negotiators are trained to deal with inmates suffering a mental health crisis. The CSOI report also variously records that DSO Merriam requested ICIT activation for Inmate S on December 15, 2016 and/or felt that the circumstances appeared to meet the criteria for ICIT activation as Inmate S was a large individual and had a history of violent behaviour. However, DSO Merriam deferred to DRD Patterson who denied authorization.

34Mr. Thompson had been advocating with DSO Merriam to activate ICIT when Dr. Kelly and DSS Easto met with him on Unit 8. By this time, Inmate S had been in the shower for almost two hours, unwilling to leave so long as the water was running. I heard no evidence as to how or whether the plumbing issue was resolved. Dr. Kelly did not want ICIT involved. Health care staff appeared concerned that the use of ICIT could be traumatic for Inmate S. She advised that Inmate S was food driven, so crackers and peanut butter were brought to the unit by MHN Cook and HCM Goard. They attended at the shower area and Inmate S was shown the crackers and told that he could have them if he went to his cell. According to Mr. Thompson, Inmate S wanted the food and became more cooperative.

35The COs on the unit were initially uncooperative, believing that ICIT should be utilized for the move. There was also tension between the union on behalf of its membership (COs) and the Employer concerning circumstances that might require COs to become involved in a use of force and any resulting Employer response. Also on December 15, 2016, according to the CSOI report and referred to by Mr. Thompson, staff on Unit 8 were already dealing with behaviours of two other inmates.

36From Mr. Thompson’s perspective, the inmate needed to be moved by ICIT, as they had the training to safely move mentally unstable, high risk inmates and he made his view clear to DSO Merriam. Mr. Thompson felt that Inmate S’s behaviour while in custody showed he was unpredictable and that ICIT had the better training, had protective equipment, and were more physically fit. The Employer argued that the use of ICIT was a red herring as events showed that Inmate S was compliant and that Mr. Thompson and staff were able to move Inmate S to the cell.

37According to his transcribed interview, DSO Merriam spoke with Dr. Kelly who advised him that Inmate S was compliant. Mr. Thompson understood that he was to proceed with the transfer as ordered. In his evidence Mr. Thompson agreed that Inmate S was compliant for a period of a few minutes when he left the shower. When it was suggested that he therefore had no need for ICIT, he responded that he had no choice, and maintained that, given the inmate’s unpredictability, the best option would have been to have ICIT move him. Mr. Thompson disagreed that using ICIT would be overmuch, because only a few minutes before, the inmate had been throwing things and spitting at staff. In Mr. Thompson’s experience, a person not suffering from mental illness would typically calm down and submit to authority, but those with mental illness were unpredictable and often fought back harder and with considerable strength. There was no dispute that persons suffering from mental illness could exhibit unusual levels of strength when agitated.

38Following the offer of food, Mr. Thompson was able to place handcuffs on Inmate S through the shower door. He took hold of the centre of the cuffs and started to lead Inmate S towards cell #B10, which was located at the end of the hallway on the right. Four COs surrounded Inmate S to assist, while another CO walked a few steps to the right watching the escort.

39Dr. Kelly, HCM Goard, and MHN Cook initially followed the escort as a means of reassuring Inmate S. However, Inmate S began to resist and the health care team moved away from the escort to remain safe, in accordance with policy, but thereby removing their support. They remained in the module throughout the incident. A few steps within video coverage, Inmate S can be seen attempting to bite Mr. Thompson, who responds using an open-handed slap, referred to as a distraction blow, as a means to try to stop that behaviour. It appears from the video that Inmate S ducked and no contact was made. Spitting and biting give rise to health and safety issues in correctional facilities, due to the risk of transmission of disease and/or infection. In response, the COs took Inmate S by each arm and moved his arms forward and held the back of his head down reducing his ability to either spit or bite.

40However, Inmate S’s resistance increased. At the cell door, a CO sprayed Inmate S with OC foam. According to the Security Control Equipment Policy, Oleoresin Capsicum (“OC”) foam or spray is an inflammatory agent designed to temporarily impair an individual’s ability to harm others with no long lasting effects. It is colloquially understood as a type of pepper spray. Foam is more directed than spray and results in less contamination. It is considered a prohibited weapon and can only be used by certified trained correctional staff. According to policy, following the use of OC spray or foam, the inmate is to be decontaminated as soon as practicable. Mr. Thompson acknowledged that OC foam was used on Inmate S in the hallway. He did not initiate or authorize its use.

41Between 3:03:35 and 3:03:50, the video shows the participants outside the cell door with COs struggling to move Inmate S into the cell, while Inmate S is actively resisting by digging in and pushing back. Inmate S appears to have weighed in excess of 200 pounds and had a large, stocky build. DRD Houghton agreed that Inmate S was resisting before being moved into the cell.

42In his CSOI interview, DSO Merriam described that Dr. Kelly was very upset after the incident and felt the use of force was unnecessary as the inmate was compliant. And the Employer asserted that Inmate S was compliant, rendering any use of ICIT inappropriate. However, I find it difficult to conclude that Inmate S was compliant, or that his compliance of a few brief moments when offered crackers rendered him so sufficiently compliant to eliminate the need for a reasonable use of force. A compliant inmate would require, at most, two COs to escort him from the shower to his cell while exhibiting no resistance. Also, it is difficult to understand why an inmate suffering a disturbed mental health crisis would be expected to be compliant. Inmate S’s behaviour over the preceding days was erratic and risky and he had not been compliant as he continued to engage in behaviours that gave rise to issues of his health and safety and to the health and safety of staff. That day he required showering due to his behaviours and he would not follow direction to stop throwing shampoo and water and he was spitting at staff. He was not willing to leave the shower and had remained there for almost two hours until distracted by the offer of food. No one would have been able to predict Inmate S’s behaviour on leaving the shower with any semblance of certainty. As it happened, he was compliant for a couple of minutes, but quickly became non-compliant on leaving the shower area, and he actively resisted being moved into the cell. At the same time, this non-compliance cannot necessarily be associated with culpable resistance. Mr. Thompson testified that Inmate S “got scared” once he left the shower. This cycle of resistance and containment reflects the very real dilemma of maintaining both care and control of a mentally ill inmate in a correctional facility.

43DRD Houghton allowed that Mr. Thompson had identified concerns about moving Inmate S and that the move had the potential to jeopardize the safety of both the inmate and staff. He agreed it was fair to say that there was potential significant risk when moving an inmate with mental illness who had exhibited violent behaviour. He also agreed that trying to negotiate with someone who is mentally ill is unpredictable.

44Any suggestion that activating and deploying ICIT would have taken too long or required approvals or plans not in place that day does not accord with the evidence. There is no doubt that there are protocols in place that must be addressed before ICIT is activated and then deployed, for in many instances a deployment would require team members to attend at the institution when they are otherwise not on duty.

45DRD Houghton testified that it would take over an hour to receive authorization for ICIT to be activated as it required a Situation Mission Execution Action and Conclusion Plan (a “SMEAC”). In cross-examination however, he agreed that a SMEAC had been prepared around 2pm that day for what was described as moving inmate S from the shower. DSO Clancy, who has also worked as an ICIT member, agreed that ICIT could be activated verbally if required and that the written SMEAC could be completed afterward. ICIT was in the building that day undergoing training exercises. Mr. Thompson had already spoken to the ICIT Coordinator. The SMEAC had been prepared in connection with moving Inmate S from the shower. According to DRD Houghton, “the thinking was he probably would need ICIT to go to the hospital”. When pointed out to him in cross-examination that there had been no intention of moving Inmate S to the hospital until he went into medical distress, he responded that where the inmate was being moved was irrelevant, seeming to contradict his earlier statement. He then stated that taking Inmate S to the hospital from the shower would have been a good idea. On that, Mr. Thompson would have concurred.

46While hearsay, the transcribed statement of DSO Merriam to CSOI corroborates that Sgt. Campbell came to him with a SMEAC before any of the negotiations with Inmate S had started. Only later did DSO Merriam contact Sgt Campbell to activate ICIT for a hospital escort because of the medical alert. That escort was not required given Inmate S’s death in the cell.

47Any question as to whether ICIT should have been deployed to move Inmate S from either Unit 2 or the shower to cell #B10 is not something to be determined here. Mr. Thompson agreed that correctional staff were able to get Inmate S into the cell and it is his conduct that led to his termination from employment. Whether or not to deploy ICIT engages a risk assessment. That involves a valid debate as to considered risks and appropriate options. ICIT can appear threatening to inmates and, for an inmate suffering from mental illness, that may generate greater fear, and perhaps a corresponding greater resistance. There are also reasons why an institution does not want staff to become too reliant on ICIT for inmate transfers. At the same time, ICIT can be more efficient and effective in transferring a high risk inmate so as to limit that experience and enhance the likelihood of a successful outcome. For purposes of this decision, that discussion is relevant to the extent that Mr. Thompson’s judgement based on his experience with Inmate S over the previous days, and seemingly supported by DSO Merriam, was overruled by the DRD and it left Mr. Thompson feeling unsupported by the Employer.

48Five COs and Mr. Thompson were able to move Inmate S to the cell doorway. Three initially moved into the cell with Inmate S. Immediately after, the other three moved into the cell. Inmate S was placed on his knees leaning over the bed. Mr. Thompson intended to remove the handcuffs and have staff leave the cell and was advising Inmate S accordingly. However, Mr. Thompson realized that the cell had not been cleared as he had directed. He directed that Inmate S be moved to the floor so that the cell could be cleared of the items left there.

49DRD Houghton was persuaded that Mr. Thompson gave an order to remove the cuffs from Inmate S, jeopardizing safety and security. According to DRD Houghton, and confirmed by both Complainants, the goal had been to disengage as quickly and as safely as possible. He testified that the opportunity for staff to leave the cell came when Inmate S was on his knees over the bed, and that the inmate could have remained cuffed until he calmed down.

50The video discloses that between 3:04:20 and 3:05:25 various items are thrown out of the cell into the hallway, including a book, sheets, a mattress, and other unidentified objects. DRD Houghton testified that “a pill or two” were found in the cell. He agreed that neither Mr. Thompson nor Ms. Roselle were responsible for the fact that the cell had not been searched and cleared prior to Inmate S’s arrival.

51DRD Houghton acknowledged that the institution does not want anything left in a cell that an inmate could use against themselves or others and that cells are to be cleared prior to moving an inmate in. However he testified that, in this case, staff should have left the cell and cleared it later once the inmate had calmed down. From Mr. Thompson’s perspective, he would have been breaching policy had he failed to clear out the cell, and, had Inmate S found and used anything that jeopardized his or staff’s health or safety, he would likely also have been fired.

52It is entirely possible, if not likely, that being moved from the bed to the floor and having things thrown out of the cell agitated Inmate S even more. He remained cuffed to the front. Mr. Thompson testified that he had never before had to check to ensure that a cell had been cleared. At 3:05:42 Mr. Thompson exited the cell and took a moment to walk around outside the cell door area in what appears to be an effort to gather himself. He re-entered the cell and remained there for about 30 seconds.

53During that time a code blue was called, officer assistance required. Mr. Thompson described that the code was called because the inmate was fighting, the officers could not get out of the cell, those officers were exhausted, and “fresh bodies” were needed. There was no suggestion but that calling the code was appropriate in the circumstances. OC foam was also used on Inmate S a second time, although the exact timing is unclear.

54Mr. Thompson heard ASgt Ayotte over the radio saying the unit door was locked. Mr. Thompson headed down the hall to open the door so as to allow responding officers into the unit. DRD Houghton rejected any explanation for Mr. Thompson leaving the cell area. According to DRD Houghton, the code blue had been called and the unit doors could have been opened by central control. While Mr. Thompson acknowledged in cross-examination that the “scene” was the cell, he testified that he left the cell area as he felt he was more of a hindrance as he could not help physically and had he stayed and sent someone else to open the doors, he would have put staff at more risk. It made sense to him at the time that he open the unit door. At the time, Mr. Thompson was heavyset and suffered chronic health issues, including arthritis and he was in some pain as a result of his involvement in trying to restrain Inmate S. According to DRD Houghton, those physical limitations did not warrant Mr. Thompson leaving staff unsupervised while they were engaged with the inmate.

55At 3:06:38 the response to the code blue can be seen on the video. Over the next twenty seconds, nineteen persons can be seen arriving on the unit and heading towards cell #B10. It was not disputed that ASgt Comtois arrived as part of this group, and, according to the transcription of his interview with CSOI, he confirmed that he was the first to arrive. CO O’Sullivan arrived shortly thereafter.

56There was no dispute that ASgt Comtois remained in the cell actively assisting until staff were able to exit the cell, and that he remained at the cell, re-entering when the medical alert was called. It appears that he received no briefing upon his arrival and would have known only what COs already in the cell may have described. He was aware of the use of a spit hood but not that OC foam had been used.

57It was not clear from the video when ASgt Ayotte arrived, but there appeared to be no dispute that he arrived before Ms. Roselle. ASgt Ayotte was also either at the cell door or in the cell from the time he arrived in response to the code blue until about 3:11:10. He was gone from the immediate area until 3:14:37 when he returned and remained at the cell until and during the medical alert. According to his occurrence report filed on December 16, 2016, ASgt Ayotte arrived on scene in response to the code blue and was briefed by Mr. Thompson who advised him that Inmate S had been pepper-sprayed.

58In response to the code blue, Ms. Roselle arrived at Unit 8 at 3:07:02. She testified that she saw both Mr. Thompson and DSS Easto outside the module on entering the unit. She described Mr. Thompson as looking flushed and winded and she was aware that he had health issues. According to her occurrence report filed on December 16, 2016, she asked him if he was okay. According to the CSOI summary of her interview, Ms. Roselle stated that Mr. Thompson did not brief her, although Mr. Thompson did tell her that the inmate had spit at him. She initially took what she described as a secondary role, going down the hallway closing sliders on cell windows along the way.

59At 3:07:05 CO Lively ran from the cell past Ms. Roselle towards the module, apparently to retrieve a spit hood. About eight COs removed themselves from the cell area and two COs ran towards the module.

60At 3:07:20 Ms. Roselle arrived outside the cell and stood speaking to those congregated in the hallway. One of the two COs ran back and went directly into the cell. It is unclear whether he was returning with leg irons or a spit hood. At this time, Ms. Roselle can be seen standing in the hallway behind the open cell door with no clear view into the cell.

61According to the CSOI summary of CO Matthews’ statement, he acknowledged placing a spit hood on Inmate S and that is corroborated in albeit hearsay statements from other COs to CSOI. A spit hood is safety equipment designed to protect correctional staff. It is placed over an inmate’s head and secured. DSO Clancy described that at the eye line and above, a spit hood was made from mesh. The nose and mouth area of the hood is terry cloth enabling it to absorb spit or vomit such that correctional staff are protected from any health risk.

62The video discloses that at 3:09:18, CO Lively returned with a spit hood, but according to the summary of her statement to CSOI, they already had one. The video, the hearsay, and variously inconsistent statements do not clearly disclose the timing of the application of a spit hood or leg irons. However, there is no dispute that both were applied in an effort to restrain Inmate S. There was also no dispute that, as noted earlier, OC foam had been deployed in the cell.

63At 3:07:38 Ms. Roselle moved from behind the cell door to outside the cell door and this appears to be the first time that she looked into the cell. The evidence demonstrates that to that point, no one had ‘handed off’ responsibility to her. Nor is it apparent that she would have seen the spit hood be deployed. The evidence also does not support a conclusion that either Mr. Thompson or Ms. Roselle authorized the use of a spit hood.

64At 3:07:44, DSS Easto walked down the hallway in the direction of the cell. CO O’Sullivan walked towards the cell area and spoke to Ms. Roselle. Together, Ms. Roselle and CO O’Sullivan went to cell #B6, to remove a phone stand that was being used by the inmate housed there. At 3:07:50 Mr. Thompson can be seen heading back toward the cell, stopping at cell #B6 to lock the cell slot. CO O’Sullivan secured the phone unit and Ms. Roselle, followed by Mr. Thompson, headed towards cell #B10. DSS Easto left the immediate area without speaking to either of them.

65DSS Easto’s responsibility was the supervision of Unit 8. Her position appeared to be relatively new and although the evidence was limited, there appears to have been some lack of clarity as to the role and responsibilities of the DSS. Most Deputy Superintendents would have responsibility for a number of units. DRD Houghton agreed that DSS Easto was responsible for segregation and that neither Complainant, nor the Acting Sergeants, were responsible for Unit 8 on December 15, 2016. DSS Easto had the authority to overrule any decision being made but she did not attend at the cell. While it appears consistent with general practice for a Deputy Superintendent not to become directly involved in an incident, she was on the unit, was fully familiar with Inmate S’s history and Mr. Thompson’s concerns about the move, and was likely responsible for oversight of the Sergeants, although there was a lack of clarity as to her responsibility for overseeing operational issues. DRD Houghton advised that Ms. Easto was no longer employed by the Ministry, but I have no evidence as to the circumstances or nature of that departure.

66At 3:08:18 both Mr. Thompson and Ms. Roselle can be seen standing in the hallway looking into the cell. In a very brief conversation it appears that Ms. Roselle provided some support to Mr. Thompson as she placed her hand on his back. His evidence was that he was in pain, due to his bad hip and that he was breathing heavily.

67Seconds later, Mr. Thompson left the cell area again heading towards the module. He testified that he went to retrieve a spit hood. He also testified that he left the cell area to contact DSO Merriam so as to update him. A careful review of the video discloses that, following his brief conversation with Ms. Roselle, he left the immediate cell area and did not return until 3:20:14, some twelve minutes later. There is no dispute that Mr. Thompson did not find or provide a spit hood. DSO Merriam’s transcribed statement to CSOI corroborates that Mr. Thompson reported to him. According to DSO Merriam’s statement, Mr. Thompson described that Inmate S was lifting four officers off the floor, implying he was exhibiting unusual strength. Mr. Thompson also advised that the inmate had been pepper-sprayed. According to DSO Merriam’s statement, he and Mr. Thompson were on the phone when the medical alert sounded. That timing is consistent with the video evidence of Mr. Thompson’s movements.

68The significant factual dispute in this proceeding was whether or not Ms. Roselle was aware of the spit hood deployed on Inmate S. In her occurrence report Ms. Roselle notes that Mr. Thompson told her that the inmate had spit at him and that, on arriving at cell #B10 she heard someone say they needed a spit hood. In her allegation meeting, her CSOI interview and in evidence before me, Ms. Roselle maintained that she had only seen the spit hood on Inmate S when they re-entered the cell and called the medical alert. DRD Houghton rejected Ms. Roselle’s explanation and determined that she was lying.

69There was no evidence to suggest that Mr. Thompson said anything to Ms. Roselle about a spit hood. At 3:09:18, when CO Lively returned with a spit hood, Ms. Roselle was facing away from the cell with her back to CO Lively and, although they appear to exchange a few words shortly after, there was no evidence as to the nature of that conversation. And it appears that the spit hood had already been applied by that time.

70When Ms. Roselle first saw Inmate S, he was already on the floor and resisting. In cross-examination when put to her that she would have seen the spit hood, Ms. Roselle reiterated that she did not see it until later when re-entering the cell, and testified that there were possible reasons for not seeing it, including that she was at the doorway of the cell and Inmate S was on his stomach facing away from her towards the back of the cell, there were COs restraining Inmate S while he struggled blocking her view of his head, and she had been trained to look for major muscle movement so would not have been focussing on his head. She stated that the positioning of the hood could also impact her ability to see it.

71There were at least five institutional staff in the cell attempting to restrain Inmate S while Ms. Roselle was standing at the cell door. Inmate S was on the floor, with his feet towards the cell door and his head at the other end of the cell, with his face down. From the site visit, the cell, including the bed and toilet, is likely no more than about seven feet wide by ten feet long, so the available floor area is limited. DRD Houghton acknowledged that those staff would likely have been on Inmate S’s shoulders, legs and back. He testified that Ms. Roselle was the last one out of the cell and that she was supervising and had to have been aware of the spit hood. Ms. Roselle believed that she was the last one out of the cell but testified that she was focussing on getting the COs out, watching for major muscle movement, and that Inmate S responded in acknowledgment that he understood staff were leaving the cell. CO Rogers advised in his interview with CSOI that he could not remember seeing the spit hood on Inmate S. When asked about that likelihood, DRD Houghton testified that he could not speak to whether CO Rogers had seen the spit hood or not, even though CO Rogers was in the cell attempting to restrain Inmate S. Yet DRD Houghton was adamant as to what Ms. Roselle would have seen from the doorway, a matter of some concern in assessing his evidence.

72When asked if the spit hood covered the mouth but was otherwise gauze, DRD Houghton responded, “transparent” and then agreed that it was “quite gauzy”. He agreed that he was not aware of how the hood would have been positioned on Inmate S at the time Ms. Roselle exited the cell.

73At 3:09:56 Ms. Roselle entered the cell doorway, briefly withdrew, and then returned. ASgt Ayotte can be seen stepping out from the cell and at 3:10:58 Ms. Roselle moved into the hallway outside the cell door and spoke to him briefly. He then left the immediate area and, as noted earlier, returned about three minutes later.

74At 3:11:56 and at 3:12:45 two male COs and one female CO can be seen leaving the cell. This is consistent with Ms. Roselle’s statement in her occurrence report that she assisted COs Crockford and Saunders to climb across the bed so that they could exit the cell. According to her occurrence report, the cuffs were still to the front of Inmate S although his arms were above his head.

75A decision to move the cuffs from the front to the back of Inmate S was made. Ms. Roselle testified that ASgt Comtois asked her if she thought they should move the cuffs to the back and that she stepped out and saw members of ICIT at the module. That evidence is partly corroborated by the hearsay account of ASgt Comtois in his CSOI interview wherein he indicated that someone suggested moving the cuffs to the back and no one was making a decision, so he asked Ms. Roselle what she thought because, in his view, the inmate was a threat to staff. According to Ms. Roselle, while she had concerns about cuffing the inmate to the back, she thought that ICIT could assist if need be and deal with any situation quickly. In her allegation meeting Ms. Roselle stated that at the time she did not feel the direction to be improper as Inmate S was combative and she had been trained to put the inmate in a position of disadvantage. DRD Houghton acknowledged that cuffing individuals to the back is not prohibited and that it is not uncommon for high risk inmates. He also agreed that members of ICIT were present on the unit by the control area, but against direction.

76DRD Houghton believed that Inmate S must have been compliant in order to be able to remove the cuffs and move them to the back. He did not speak to any of the officers involved. In addition to his own view of the circumstances, he relied on ASgt Comtois’ statement to CSOI that Inmate S became compliant when told the cuffs were to be moved to the back. Other statements differ. For example, CO Obress’ statement indicates that he was present in the cell and that the inmate did not take direction or calm down until he was handcuffed behind his back. Ms. Roselle testified that once the cuffs were moved to the back Inmate S calmed down.

77ASgt Comtois’ statement to CSOI also indicates that CO Surowiec was the last person out of the cell, not Ms. Roselle. DRD Houghton did not rely on this aspect of his statement. In concluding that Ms. Roselle was the last to leave the cell he relied on Ms. Roselle’s statement, while rejecting her statements about not seeing the spit hood.

78DRD Houghton accepted that with respect to moving the cuffs to the back there was discussion, as he put it, “looking for some common understanding” and “looking to the senior person for authority”. When put to him that there was a joint decision made, he stated, “no, there were two managers actively involved and Roselle as the confirmed manager was giving direction”. He also testified that Ms. Roselle could have overruled the idea to move cuffs to the back.

79When asked in cross-examination whether there had been a lack of physical control of the situation due to Inmate S fighting and resisting, DRD Houghton testified that there was no lack of physical control in that inmate S was in shackles and cuffs. At the same time, he agreed that for a number of minutes staff could not exit the cell because the inmate was fighting them. He agreed that in order to disengage and exit the cell those staff would have to coordinate. He agreed that the cuffs were moved to the back so that officers could exit the cell. He acknowledged that both ASgts Ayotte and Comtois were aware that the inmate had been sprayed and was wearing a spit hood. (It was not apparent from any tested evidence that ASgt Comtois was aware that OC foam had been used. His hearsay statement to CSOI indicates that he was not aware that OC foam had been used until after paramedics arrived.) DRD Houghton agreed that Ms. Roselle was not aware that OC foam had been used.

80DRD Houghton considered moving the cuffs to the back to be counter-productive, while agreeing that those present in the cell considered it appropriate at the time in order to further restrain Inmate S. It was not disputed that having hands cuffed in the front allows greater movement and a corresponding greater ability to inflict injury than if one’s hands are cuffed to the back. The decision to move the cuffs to the back was a judgment call and DRD Houghton confirmed that the real concern was leaving Inmate S in a prone position wearing a spit hood.

81At 3:16:02 it appears that between five to seven staff leave the cell. The cell door was closed and secured at 3:16:16. Although there is a dispute as to what Ms. Roselle was aware of at that time, there is now no dispute that OC foam had been used on Inmate S twice, he was cuffed with his hands to the back, he had leg irons on, and he was lying prone on his stomach on the floor wearing a spit hood. At 3:17:16 the cell door was opened and a medical alert was immediately called. In that intervening minute, various individuals, including Ms. Roselle, can be seen looking into the cell. Ms. Roselle testified that she monitored Inmate S from the cell door. When the door was unlocked, the restraints and hood were immediately removed and the health care team responded. By 3:27 EMS had arrived and Inmate S was declared ‘vital signs absent’.

Training and Policy

82DSO Clancy was the Staff Training Manager at CECC at the time of the incident. He confirmed that Mr. Thompson received no training in report writing on his return to work in December 2015 after his 15-year absence, as it was not required for Sergeants. On December 15, 2016 Mr. Thompson attended at the administration office immediately after the incident as directed to complete a use of force report. Unlike the typical Occurrence Report form, the Use of Force Occurrence Report form expressly states that it must include an account of the events leading to the use of force, being specific regarding inmate behaviour and including any action taken or attempted to resolve the situation by the writer and others involved in the incident.

83According to Mr. Thompson he did not reference his use of an open hand in his account of the incident as it had not connected and therefore he had not used force. He acknowledged had he had not included that a correctional officer had struck Inmate S, and testified that, although he tried to recall everything, he was in shock. He did mark off the boxes on page 1 of the form that confirmed that there had been both soft and hard physical techniques used, that OC spray/foam had been used, and that mechanical restraints had been used.

84The following morning, a Friday, the police picked up Mr. Thompson from work, took him home and obtained his uniform for forensic purposes. He returned to work and at 5pm was suspended. He was directed not to be on CECC property and not to contact anyone. He voluntarily attended for a police interview without counsel on Monday, December 19, 2016 which helped trigger his memory. He told police of his open hand distraction and other details concerning use of force by COs and then, later that day, prepared a written addendum that included that information. However, he did not provide that addendum to the Employer until the investigation, having been told not to contact anyone at the institution. I accept Mr. Thompson’s evidence that he was not seeking to withhold information by providing an incomplete report. That conclusion is supported by the fact that he confirmed use of physical techniques, OC spray, and mechanical restraints on his report prepared on December 15, 2016 and that he advised police of these details.

85In cross-examination Mr. Thompson described that report writing in his earlier tenure was a different process, requiring that one write only about what they did, not others, and not in much detail. He also testified that, in his experience, these reports would get reviewed and if there were questions or recalled details, one had the opportunity to write an addendum.

86Mr. Thompson had been involved in use of force incidents since his return, including what he described as two major incidents. He described that he reported what he did in response. There was no feedback or concerns regarding his reporting. In his evidence Mr. Thompson confirmed that the understood the importance of reporting any use of force and he noted that a Local Incident Report (“ILR”) had also been completed.

87The Employer’s Spit Hood Policy states, inter alia:

5.2 The Sergeant must authorize the use of the spit hood.

5.3 A Sergeant must ensure that correctional officers have been [oriented] on the use and application of the spit hood.

6.3 Staff must ensure that an inmate is not placed on his/her stomach, or in any position that could result in positional asphyxia while wearing the spit hood.

6.4 Staff must ensure that the inmate has been properly decontaminated when OC spray/irritants have been used.

6.6 Staff supervising an inmate wearing a spit hood must ensure that they maintain control of the inmate’s arms to prevent the inmate from removing the spit hood.

6.8 Staff must ensure that the inmate is never left unattended while wearing the spit hood.

88Training in the use of spit hoods is provided as part of a “Defensive Tactics” course. The policy is to be reviewed and trainees are to be taken through a physical demonstration using the spit hood. According to DSO Clancy, that training is to reinforce that inmates are never to be left unattended while wearing a spit hood. DSO Clancy did not conduct any training taken by the Complainants, so could only speak to the expected curriculum. Ms. Roselle completed a “Spit Hood Orientation” on August 15, 2013, which DSO Clancy agreed was different from training.

89Ms. Roselle also completed “Community Escort - Defensive Tactics Refresher/ Recertification” on February 24, 2014 that was to include a component on spit hood use and protocols. Prior to that her last Defensive Tactics training appears to have been on May 2, 2011.

90Upon re-employment, Mr. Thompson attended a three-day training session in September 2015, which was to include an introduction to the Security Control Equipment Policy and a review of mechanical restraints. On December 5, 2016 he completed the Community Escort-Defensive Tactics Refresher/Recertification training which was to include spit hood use and protocols. Mr. Thompson could not recall any instruction with respect to the use of spit hoods beyond being shown what it looked like.

91DSO Clancy agreed that both training and a refresher are to enhance the likelihood that an employee will default to the correct procedure in an emergency situation. Page 21 of the “Defensive Tactics, Theoretical Concepts Self-Directed Learning” materials produced by the Ministry’s Ontario Correctional Services College states, “in the end however, one thing is for sure: there is no substitute for training and practice”. DSO Clancy agreed that repetition made one better testifying that practice came every day on the floor.

92However, although Ms. Roselle had been shown a spit hood in orientation, she had never seen a spit hood deployed. Nor had Mr. Thompson been involved in a situation using a spit hood prior to December 15, 2016. In 32 years of service, and as a prior member of ICIT, DSO Clancy had had one occasion to use a spit hood, during an ICIT deployment.

93The Spit Hood Policy requires that staff “must ensure that the inmate is never left unattended while wearing the spit hood”. DRD Houghton drew a distinction between “observed” and “attended”. In his view, so long as a spit hood remained on the inmate, someone was required to stay with him. Alternatively, it was his view that the spit hood was to have been removed prior to leaving the cell.

94However, DSO Clancy agreed that “unattended” was not taught to mean that one had to be in physical contact with an inmate wearing a spit hood. He agreed that arms being cuffed behind would constitute maintaining control of the arms in accordance with the policy. He initially stated that his understanding was that one had to remain in the cell with the inmate but agreed that it did not require being in physical contact with the inmate. He offered that one could leave the cell unlocked and remain in close contact. When asked if he was indicating that it was a violation of the policy for Ms. Roselle to have been watching the inmate through the cell window, DSO Clancy responded, “I didn’t say that, I am not saying she violated the policy”.

95DRD Houghton testified that the DSS provided a higher level of supervision and acknowledged that she was present during the incident and was in charge of Unit 8. He further acknowledged that she had responsibility to monitor what was happening in cell #B10 and that Ms. Roselle, ASgt Ayotte, and ASgt Comtois had all responded to the code blue from other areas of the institution, having no responsibility for Unit 8. He also agreed that Mr. Thompson was not responsible for Unit 8. However, DRD Houghton testified, the DSS did not attend the cell and so was not in charge.

96DRD Houghton assigned responsibility to Ms. Roselle on the basis that she attended at the cell and gave direction. According to DRD Houghton, Mr. Thompson was in charge until another manager arrived; that when the acting managers arrived, they assumed responsibility, and when Ms. Roselle arrived, she was the ranking officer and assumed responsibility. According to DRD Houghton, although an acting sergeant would be held to account if they were acting alone, if a “true” manager was also on the scene, then more responsibility shifted to that individual, because, he testified, “that’s the Ministry’s way of operating”. He agreed in cross-examination that no policy suggested this hierarchy of authority and that the Employer holds acting managers accountable, but asserted that, “the thinking would be she’d be in charge of the situation”. While asserting that this was part of their training, he acknowledged that he was not aware of the nature of the training at CECC.

97According to DSO Clancy, once trained, Acting Sergeants have the same authority as Sergeants. That view was confirmed by Mr. Thompson who testified that in his experience there had not been a time when a sergeant was seen to outrank an acting sergeant, as they both held the same position.

98Ms. Roselle acknowledged both in her allegation meeting and in evidence to giving various directions to those outside the cell, to the inmate, and to direct COs to leave the cell. However, there was clearly a tension between a conclusion that she was “in charge”, given the circumstances and given both the ability of the acting sergeants to exercise the same authority to give direction.

99DRD Houghton testified that staff receive training to deal successfully with situations such as this, and identified Defensive Tactics, Personal Protective Security Equipment, and first aid as examples. He disagreed that this incident constituted a crisis or an emergency, thereby triggering the Crisis Management Policy. In DSO Clancy’s view, the incident was not routine. He was engaged in training in the institution on December 15, 2016 and had been advised that Inmate S was exhibiting violent and unmanageable behaviour. He also agreed that it was unusual for inmates to continue fighting, remaining non-compliant in the face of restraints and multiple attending officers.

100The Employer’s Crisis Management Policy defined an “emergency situation” as:

An occurrence or sequence of events that disrupts the normal daily operations of the institution and either jeopardizes or has the potential to jeopardize the safety of any person and/or the security of the institution.

101A code blue is identified as an “emergency” code. The policy further stated that, “in the event of an emergency situation”, the operational response was to reflect the following order of priorities, one that appears to place staff safety above the safety of inmates:

a) protection of the public

b) the safety and welfare of hostages and the prevention of death or serious injury to employees, volunteers, and persons under contract to Correctional Services;

c) the safety and welfare of non participating inmates;

d) the safety and welfare of participating inmates;

e) restoration of order and the protection of property;

102When asked if the Crisis Management Policy required the institution to have a crisis committee, DRD Houghton testified that CECC did not. The policy states that each institution is to have an Emergency Planning Committee. On December 15, 2016 DRD Patterson suggested use of a crisis negotiator, a resource deployed pursuant to that policy. DSO Merriam was the delegated Crisis Manager in the institution that day, and Mr. Thompson updated him with respect to the incident, rather than going to DSS Easto.

103The Security Control Equipment Policy speaks to the use of various types of restraints. Section 6.12 is titled “The Use of Restraints for Individuals with Excited Delirium” and directs:

6.12.1 …Restraining an individual in the prone position (stomach down) with hands secured behind the back and leaving them in this position is particularly hazardous because of an increased risk of compromising diaphragm and lung function and increasing irritability of the heart, leading to sudden death…

6.12.2 To reduce the potential risk, inmates exhibiting any combination of symptoms of excited delirium must be treated as a medical emergency and promptly transported to hospital… Once restrained, the individual must be kept in an upright/sitting position and be continuously monitored...

104DSO Clancy testified that section 6.12 applies to all inmates and that part of the training includes cuffing trainees behind the back and putting them in a prone position on their stomachs so they understand how it feels. DRD Houghton agreed that an inmate could be in excited delirium or the inmate could simply be violent and he would not be able to tell the difference. Nor did he expect that COs would necessarily be able to tell the difference.

105The Employer’s Defensive Tactics-Restraints Self-Directed Learning materials (at page 17) describe that the prone position offers the most protection in the event of aggressive behaviour. The same materials (at pages 27-28) describe positional asphyxia and state that “when persons are physically restrained in the prone position… the ability of the diaphragm to drop and the chest to expand is greatly impeded”, impacting “effective oxygen exchange”. Being in a prone position with pressure being applied to shoulders, back or lower spine, being prone with restraints behind the back, or being face down on any surface are identified as “risk/dangerous positions”. The materials describe safety precautions that include placing the person in a recovery position and recognizing that sudden ‘compliance’ may in fact be a medical emergency.

106On March 10, 2014, Ms. Roselle completed mandatory refresher training that was to include review of the use of mechanical restraints and the Security Control Equipment policy including section 6.12. In October 2014 Ms. Roselle completed Part A of Crisis Manager training which was to include components on staff supervision and security of a scene, including a review of the responsibilities of a manager for scene oversight and control until they are relieved by another manager. It is the case that, as it relates to escort duty, Ms. Roselle’s refresher training in Defensive Tactics and Security Control Equipment in early 2014 would be considered outdated and she would have been on “inactive status”, as recertification with respect to escort duty is required every two years. However, Ms. Roselle acknowledged that she was aware that placing someone in a prone position gave rise to health risks and that the person would need to be monitored.

107The CSOI report finds that nine other individuals breached policy by exiting the cell and leaving Inmate S prone, handcuffed to the rear with leg irons and wearing a spit hood. There is no evidence that any correctional officer or Sergeant (acting or otherwise) involved in the interaction with Inmate S questioned leaving him prone on his stomach with arms cuffed to the back, even though, according to DRD Houghton, all were appropriately trained to ensure that did not happen.

Other considerations

108In reaching the conclusion to terminate Mr. Thompson’s employment, DRD Houghton testified that, although Mr. Thompson was remorseful, he had demonstrated a lack of management skill and supervision through both his actions and inactions and the Employer concluded that the employment relationship had been irreparably damaged.

109In reaching the decision to terminate Ms. Roselle’s employment, DRD Houghton testified that although she was remorseful, her belief that ICIT could assist and that moving the cuffs to the back were acceptable ideas demonstrated a lack of understanding of the situation and that she couldn’t be trusted not to repeat similar failings in the future.

110Having agreed that Ms. Roselle had expressed concern for both inmate and staff, DRD Houghton suggested there had been an incident he had observed where, in his view, Ms. Roselle had not been empathetic of an inmate, implying an underlying concern regarding her attitude and one that appeared to influence his conclusions. In later cross-examination that incident was reviewed. It involved an inmate who was refusing to leave his cell in order to attend court. The institution was short-staffed. Ms. Roselle was the admitting Sergeant and had gone to the cells to provide help. She had no responsibility with respect to ensuring that the inmate was brought down for transport. DRD Houghton agreed that Ms. Roselle became upset because the inmate had referred to her by a “very ugly name for female genitalia”. Although he testified he did not recall, Ms. Roselle testified that the inmate also threatened her with death. DRD Houghton concluded that Ms. Roselle was not empathetic because she had disengaged and not dealt with the inmate further, an arguably appropriate response to provocation. DRD Houghton testified that she had undertaken a task and had failed to follow through. There was no suggestion that others could not or did not deal with the inmate’s interests. Then, in response to the question, “she’s a caring person?”, he responded “I don’t disagree”. Although hearsay, both ASgt Comtois and ASgt Ayotte indicate in their statements that it was Ms. Roselle who first identified that Inmate S might be in trouble.

111Ms. Roselle was not suspended following December 15, 2016 but was reassigned as an admitting and discharge manager until her discharge from employment nineteen months later.

SUMMARY SUBMISSIONS OF THE PARTIES

112I was referred to and have considered the following decisions: OPSEU (Pickett) and The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services), GSB #2251/93 (January 15, 1996) (Kaplan); OPSEU (Beltrano et al.) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB #2003-3597 (August 11, 2008) (Petryshen); OPSEU (Langford et al) v The Crown in Right of Ontario (MCSCS), 2017 CanLII 30327 (ON GSB); Martin Richard McKinley v. BC Tel, British Columbia Telephone Company, et al 2001 SCC 38, [2001] 2 S.C.R. 161; Gronski v Ontario (Community Safety and Correctional Services), 2015 CanLII 67988 (ON PSGB)(O’Neil); Bazger v Ontario (Community Safety and Correctional Services), 2017 CanLII 25423 (ON PSGB) (O’Neil); and Keating v Ontario (Community Safety and Correctional Services) 2009 CanLII 15648 (ON PSGB).

The Employer

113With respect to both Complainants, it was the position of the Employer that the termination of their employment should be upheld, asserting that both had failed to provide proper supervision, had been wholly negligent and had failed to perform the fundamental and core requirement of their job, that being, to maintain the care, custody, and control of Inmate S.

114Further, argued the Employer, both Complainants had sought to deflect responsibility and had sought to place primary blame for what had occurred on others. There had been a failure to accept genuine accountability for their actions, argued the Employer, leading to no other conclusion but that the employment relationship was irreparably damaged.

115Reviewing the series of events, the Employer argued that the inmate had been fully compliant during the move from the shower to the cell and that the incident began once Inmate S reached the cell. Notwithstanding how unstable the inmate had been that day and in preceding days, argued the Employer, things only went wrong at the cell. The Employer argued that it was the series of events, following Inmate S being placed in the cell that created a risk and exacerbated any health issues that the inmate was suffering from at the time.

John Thompson

116The evidence about ICIT was a red herring, argued the Employer, as Inmate S was secure and properly escorted to the cell. Similarly, argued the Employer, Mr. Thompson did not engage DSS Easto to take control of the scene.

117Once in the cell, argued the Employer, the evidence was unequivocal that a struggle ensued between staff and the inmate. The Employer relied on DRD Houghton’s evidence that, once Inmate S was over the bed, normal and prudent procedure would be to back out of the cell, and, if necessary, remove the cuffs later, thereby de-escalating the situation. Although Mr. Thompson testified that he directed staff to prone the inmate on the floor in order to clear the cell, argued the Employer, Mr. Houghton's evidence that those items could and should have been removed once things had calmed down was to be preferred, argued the Employer.

118The decision by Mr. Thompson to prone the inmate on the floor aggravated and escalated the situation, argued the Employer, reflecting bad judgment. In the middle of that struggle, argued the Employer, Mr. Thompson left the scene, leaving no Sergeant overseeing the correctional officers engaged in a use of force. The fact that ASgt Comtois arrived does not detract from this conclusion, argued the Employer, because ASgt Comtois was not in a position to be making decisions and directing staff while he was engaged hands on in attempting to control Inmate S.

119This was a fundamental breach of Mr. Thompson's obligation to provide oversight and ensure the safety of the inmate, argued the Employer. There was no one to explain to incoming staff, including Ms. Roselle, the current state of the inmate. Mr. Thompson knew that foam had been used on the inmate and that distraction blows had been delivered and that a spit hood was about to be or had been deployed, yet that information was not conveyed due to Mr. Thompson leaving the area, argued the Employer. Inmate health and safety does not come second to staff safety or other issues in the institution, argued the Employer.

120Finally, argued the Employer, Mr. Thompson failed to report his use of a distraction technique and the distraction blows used by CO Rogers. It is a fundamental responsibility of the Sergeant, argued the Employer, to supervise staff and report on all incidents of use of force whether justified or not, and whether fully seen or only partially seen. Forgetting is no excuse, argued the Employer.

121The fundamental obligations of a Sergeant are oversight, accountability, and reporting, argued the Employer. There was no dispute that Mr. Thompson was in charge of the escort of the inmate from the shower to the cell. Mr. Thompson remained in charge until he exited the cell, argued the Employer, but he failed to transfer relevant information to anyone, nor did he transfer supervision to another Sergeant. Notwithstanding that it was a highly charged situation and while staff at times faced considerable pressure, one of a sergeant’s fundamental duties includes being able to operate under that pressure. In this, argued the Employer, Mr. Thompson failed.

122In an “ideal world”, argued the Employer, Mr. Thompson would have stayed at the cell exercising oversight of staff. When and if he found he had to leave because of his injury and once Ms. Roselle was there, he should have communicated the salient information. The Employer asked that Mr. Thompson’s complaint be dismissed.

Dawn Roselle

123The Employer argued that, as the full-time manager, Ms. Roselle had the most experience on the scene and was giving direction. By definition, argued the Employer, she was in charge of the scene. Employees who may be acting as managers have a different legal status under the PSOA, argued the Employer, as they retain their status as bargaining unit members and have different expectations placed on them. In addition, argued the Employer, Ms. Roselle was the last person out of the cell and acknowledged that she was monitoring the inmate leading to the inescapable conclusion that she was in charge.

124The Employer argued that it was on Ms. Roselle’s direction that the cuffs were moved to behind the inmate’s back, even while the inmate was compliant. Ms. Roselle was overseeing this situation and acknowledged that she was aware of the dangers of positional asphyxia particularly with a heavy inmate.

125The Employer did not accept that Ms. Roselle did not see the spit hood on Inmate S until she re-entered the cell. However, argued the Employer, even accepting her own evidence, Ms. Roselle was monitoring the scene from so far away that she couldn’t see that there was a spit hood on Inmate S or she was so unfocused on the inmate’s well-being that she was unable to ensure that he was safe and had an open airway.

126Ms. Roselle saw Mr. Thompson leave the area but was apparently only concerned for his well-being and failed to ask about the inmate and other relevant circumstances, argued the Employer. Had she done so she might have learned that both foam and a spit hood had been used on Inmate S. She completely failed to assess the situation that she ultimately took charge of, argued the Employer. It was ironic, argued the Employer, that Ms. Roselle did not impugn Mr. Thompson's conduct. Had she been given full information by Mr. Thompson she may have conducted events differently, noted the Employer.

127Moving the cuffs to the inmate's back was an unnecessary move, argued the Employer, as he was compliant at that time. Ms. Roselle acknowledged that, having done so, the inmate required monitoring, yet failed to acknowledge that she did not attend to the inmate. Monitoring from outside the cell door while it was locked and only looking at his back was wholly deficient, argued the Employer, and these circumstances must be found to be more likely than not to have been a contributing factor to the inmate's death, argued the Employer.

128The Employer submitted that it was left with no confidence that Ms. Roselle understood the risks and/or the implications of her actions when Inmate S was cuffed at the back and watched from outside a closed and locked cell door. These factors make it impossible to progressively manage the employee, argued the Employer. Rather, argued the Employer, Ms. Roselle had attempted to fault others for not engaging ICIT while assigning blame to the Deputy Superintendent and the two acting sergeants.

The Complainants

129Confirmation bias was evident in these cases, argued counsel, a means whereby the Employer could reach a conclusion it needed. There was no evidence to support a conclusion that a loss of control by managers led to the death of Inmate S, noted counsel. The situation did get out of control, argued counsel, because they were “handling dynamite”, a situation that had been predicted and was predictable based on the history of Inmate S at the institution.

130Both Complainants noted that a number of witnesses could have testified but were not called by the Employer. The onus was on the Employer to establish that it had cause to terminate the Complainants’ employment and the Employer was relying on breaches of policy but also the context of the incident. DRD Houghton made statements asserting their truth in support of the Employer’s claim that the Complainants failed in their responsibilities, yet a number of those statements did not withstand scrutiny, argued counsel, noting the asserted lack of authority of acting sergeants, the meaning of “attending” regarding use of the spit hood, and the assertion that the requirement for a written SMEAC in order to activate ICIT would take too much time.

131Both Complainants had discipline-free, spotless records, argued counsel. The Employer’s case assumed that the death of Inmate S was caused by either Mr. Thompson or Ms. Roselle, argued counsel. The Employer needed to hold someone responsible, to terminate someone’s employment, argued counsel, so as to be able to provide an answer as to why an inmate died, even while it was apparent that had others done things differently, it might have led to an entirely different outcome. Yet the responsibility had been placed on these two individuals, argued counsel, for doing their best in circumstances that should not have arisen in the first place.

132It was not disputed, argued counsel, that Inmate S suffered from a significant mental illness and was in the institution for a violent crime. Staff lacked training in handling mentally ill patients it was argued. The Complainants argued that it was not disputed that mentally ill patients may not exhibit the same response to exertion and/or pain and may continue to fight even while staff become exhausted. It was not disputed that use of ICIT had been both recommended and rejected, argued the Complainants, or that the cell had not been prepared properly in anticipation of Inmate S’s arrival.

133On Ms. Roselle’s arrival at the cell, she followed the Crisis Management Policy, argued counsel. Her goal was to get staff out of the cell unharmed. That policy re-orders priorities, argued counsel, placing staff safety above the safety of the participating inmate. Nor could the Employer point to any policy or direction that would suggest that Acting Sergeants had any less authority or responsibility than Ms. Roselle, argued counsel. If such attention was going to be put on strict adherence to policies, argued counsel, then in fairness, more attention needed to be given to training. Mr. Thompson received no training in report writing on his return to work for the Ministry, notwithstanding a 15-year absence. Little training was provided in the use of a spit hood, argued counsel, and neither Complainant had ever used one in an active situation. It was unrealistic to expect employees to react without mistake and entirely in compliance with policy when put in a crisis situation with such limited training, argued counsel. So, argued counsel, before one could conclude irreparable harm to the employment relationship it must be asked whether there was a reasonable application of the policies considering the nature and scope of the training. The Complainants each argued that termination was an excessive penalty and asked to be reinstated to employment.

134In reply the Employer reiterated that the care, custody, and control of inmates is the fundamental and overriding primary responsibility and core function of all correctional staff.

DECISION

135It is the case that the primary objective of the correctional facility is to ensure and maintain the care, custody, and control of inmates. That is to be accomplished also having regard to the health and safety of those charged with meeting that objective. In Langford et al, supra, the Grievance Settlement Board, albeit in reference to correctional officers, stated:

76. As with any task performed by an employee, there is a range of thoroughness and attention that the employee can apply in carrying out the task. When it comes to the task of ensuring the safety of other human beings held in state institutions, it is my view that the people of Ontario have the right to expect a high degree of attention from Correctional Officers. The individuals under their care are almost entirely dependant upon the CO's for their safety, and the duties of a CO must be performed with this central fact in mind. As the tragedy of the current case demonstrates, the risks to individuals in the institution can be sudden, violent and life-threatening. In addition, and to the same extent, preserving the security of the institution is important for the health and safety of the people who work there.

136That is the fundamental backdrop against which all action or inaction must be measured. This case exemplifies the constant tension between written policy and the absolute need for front line managers to exercise judgement in response to particular and unanticipated circumstances in the context and application of those policies. It also highlights the importance of and need for training and practice. And, as noted earlier, this case is an example of the very real dilemma of maintaining both care and control of a mentally ill inmate in a correctional facility, where individuals are first and foremost inmates, not patients (a difference in focus perhaps reflected in hearsay reports that staff responding to the code blue were advised by health care staff that Inmate S was violent, not that he was suffering a mental health breakdown).

137The onus is on the Employer to establish with clear and cogent evidence that, on a balance of probabilities, it had cause to terminate the Complainants’ employment. The Employer argued that both Complainants had been negligent and had failed in their responsibility to maintain the care, custody, and control of Inmate S. The fact that Inmate S died cannot of itself sustain that broad assertion. Nor is this decision properly an exercise in the application of tort principles. This is an employment dispute, a contractual matter. It is incumbent on the Employer to establish the appropriate standards of care relevant to its relationship with those in custody. Employees are charged with implementing those standards in the context of meeting their contractual obligation to the Employer to properly perform the work assigned. In the employment context, the issue is whether the employee has met its contractual obligations to the Employer. That can give rise to an examination of the nature of those mutual contractual obligations.

138The allegations against both Complainants are specific, I have reviewed the incident beyond the detail of those allegations as that context is important in shedding light on the environment faced by those both incarcerated and those charged with ensuring their care, custody, and control.

139The Employer also argued that neither Complainant accepted responsibility for their actions and sought to blame others. I disagree. It is accurate to say that both Complainants, having had their employment terminated, feel as though they are being scapegoated and abandoned by the Employer. That does not mean that they do not take ownership of their actions. What the Employer points to as deflecting responsibility is, for the Complainants, an attempt to have the Employer consider their actions in the context of and having regard to all of the circumstances, a matter I return to later.

140Both Complainants expressed remorse and wished they had done things differently. They also wished that the Employer had done things differently. I am persuaded that it can fairly be said that both have been seriously affected by the fact of Inmate S’s death while under their care.

John Thompson

Allegation #1 - You withheld information in your occurrence report dated December 15, 2016 when you failed to report force used by you on [Inmate S] and force used by another Correctional Officer (CO) on [Inmate S].

141It was acknowledged by Mr. Thompson in submissions that his initial report had been deficient concerning his use of force, even while that use of force was not found to have been excessive in the circumstances. Nor did it refer to a CO’s use of force in the cell, observed by Mr. Thompson. Mr. Thompson prepared an addendum shortly thereafter that included a report of both those matters and provided it to police. He did not provide it to the Employer until the investigation. Notwithstanding his suspension from work and the instruction not to attend or contact the institution, Mr. Thompson acknowledged in his allegation meeting that he could have found an alternate means of providing the addendum to the Employer.

142However, the evidence does not support a finding of an intentional withholding of information. Mr. Thompson’s evidence that he had received no training on report writing on his return after 15 years was confirmed by DSO Clancy. His evidence as to his earlier training to report what he did or saw, not what others did, was not contradicted. His December 15, 2015 report was written in a first person narrative with only limited reference to others. His evidence that historically, reports were reviewed and addendums provided was also not contradicted. Whether historically that reflected the Code of Silence in action is unknown. No reports completed by Mr. Thompson following his return in 2015 were considered deficient or had raised concerns.

143However, unlike the typical Occurrence Report form, the Use of Force Occurrence Report form expressly states that it must include an account of the events leading to the use of force, being specific regarding inmate behaviour and including any action taken or attempted to resolve the situation by the writer and others involved in the incident. Thus, even accepting Mr. Thompson’s explanation, and even in light of no specific training as regards this particular form, there remain deficiencies in that he did not comply with the express instructions on the use of force report form. I appreciate that this form was completed immediately following the incident and that Mr. Thompson was no doubt extremely distraught at the time. However, while that may go to penalty, it does not influence whether the Employer had cause to discipline Mr. Thompson. I find that the Employer had cause to discipline Mr. Thompson for filing a deficient Use of Force Occurrence Report in respect of the events of December 15, 2016. However, the allegation that Mr. Thompson withheld information, which implies a specific intention, is not supported by the evidence.

144I find therefore that allegation #1 has been established in part, in that Mr. Thompson filed a deficient use of force report in respect of the events of December 15, 2016.

Allegation #2 - You jeopardized the safety and security of yourself, staff and [Inmate S], when you entered the cell and directed staff to prone [Inmate S] onto the floor to remove his handcuffs.

145The evidence establishes that upon moving Inmate S into the cell, he was placed kneeling over the bed. Mr. Thompson described that normal procedure would have been to remove the handcuffs and exit the cell. However, it became apparent that the cell had not been cleared. I have no doubt that the fact that the cell was not cleared frustrated Mr. Thompson, both because it reflected the failure of COs to respond to his direction, and because it rendered the circumstances with Inmate S that much more precarious. He did direct Inmate S to the floor in order that the contents of the cell could be removed. However, at that point, there was no suggestion or indication that Mr. Thompson was directing that the handcuffs be removed. What Mr. Thompson thought was already a risky transfer deteriorated further, as Inmate S ‘s behaviour escalated.

146DRD Houghton’s evidence that the proper procedure would have been to exit the cell and clear it later is not consistent with policy and could have given rise to other risks for the inmate. It was a judgement call as between two potentially negative outcomes. When they arrived at the cell door, Inmate S was actively resisting going into the cell. The focus was then on Inmate S, not on the condition of the cell. When staff managed to get Inmate S to a kneeling position at the bed, it became apparent that the cell had not been cleared.

147Mr. Thompson ordered the inmate to the floor in order to clear the cell, to move him away from the bed so it could be searched for contraband so as to ensure that there was nothing in the cell that could harm the inmate or staff. That was a judgement call but one consistent with policy.

148Had the cell been cleared, moving Inmate S to a kneeling position at the bed, may well have made it possible for staff to exit the cell, either leaving the cuffs on in front or perhaps even removing them. No issue can be taken with anything that Mr. Thompson did to that point. And one can only speculate about the outcome in those circumstances.

149Had Mr. Thompson directed staff to exit and leave Inmate S alone in the cell and had Inmate S found and ingested the drugs or found a weapon and engaged in self-harm, Mr. Thompson might well be defending his termination from employment for his failure to have the cell cleared. Or had Inmate S continued to struggle but found a homemade shiv and stabbed a CO, he might similarly be defending his termination from employment.

150Faced with unanticipated circumstances, Mr. Thompson had to make a decision. The Employer takes the view that he should have exercised his judgement differently, even while the Employer’s view would have had Mr. Thompson leave a high risk inmate in a cell that had not been searched or cleared. Even had Inmate S then been monitored, this case exemplifies how quickly things can deteriorate leading to negative outcomes.

151It was not Mr. Thompson’s responsibility to clear the cell and prepare it to receive Inmate S. He did provide appropriate direction to have it done prior to leaving the unit to attend at Unit 2. DSS Easto was also aware of the transfer and was present and in charge of Unit 8. There was no evidence that she engaged in any supervision or action to ensure that the unit, specifically cell #B10, was ready to receive Inmate S or to assist the safe transfer of Inmate S to that cell.

152It is likely that being moved to the floor and clearing the cell agitated Inmate S. Any jeopardy to the health and safety of the inmate and/or staff by proning Inmate S on the floor must be weighed against the potential jeopardy to health and safety of the inmate and/or staff by failing to search and clear the cell. I am not persuaded that the decision to prone Inmate S on the floor, cuffed to the front (and, at that time, prior to the application of leg irons or a spit hood), in order to proceed to search and clear the cell of its contents in accordance with policy can be described in the circumstances as an exercise of sufficiently poor judgment so as to properly attract discipline.

153I therefore find that allegation #2 has not been established.

Allegation #3 - You failed to properly manage the Use of Force incident when you left the scene while COs were inside the cell with [Inmate S] unsupervised.

154Mr. Thompson acknowledged in cross-examination that the ‘scene’ was the cell area. He also does not dispute that he left the immediate cell area, although not the unit, while the incident was ongoing. It is the case that no Sergeant was present at the cell while Mr. Thompson went to open the unit doors.

155The Employer dismissed the fact that Mr. Thompson was in some medical distress when he left the cell. Ms. Roselle recognized it immediately as she passed him in the hallway. It appears that DRD Houghton felt that Mr. Thompson was angry with the Employer. I am persuaded that both were the case.

156The Employer submitted that Mr. Thompson should have remained at the cell and that his failure to do so left COs unsupervised without adequate and pertinent information. Mr. Thompson first left the cell at 3:06:16 to move down the hallway. The COs remaining in the cell had the same information as Mr. Thompson as they had attended the escort to the cell. Those COs were left without supervision until ASgt Comtois arrived at the cell at 3:06:40, some 24 seconds later. It is the case that Mr. Thompson did not relay a report to ASgt Comtois that Inmate S was in a mental health crisis or that OC foam had been used.

157DRD Houghton testified that responsibility for the supervision of the COs transferred from Mr. Thompson to the Acting Sergeants and then to Ms. Roselle. If so, his finding that Mr. Thompson left COs unsupervised can then only relate to the twenty-four seconds spent attending to opening the unit doors. And, according to ASgt Ayotte’s occurrence report, Mr. Thompson advised him that Inmate S had been pepper sprayed. Unlike ASgt Comtois, ASgt Ayotte was also familiar with Inmate S, having worked on Unit 2 while Inmate S was housed there.

158Mr. Thompson subsequently left the cell area to update DSO Merriam. By that time three managers were present at the cell. However, Mr. Thompson’s failure to clearly address a transfer of supervision, specifically to provide a more detailed briefing to those managers responding to the code blue is problematic.

159The Employer argued that in an “ideal world” Mr. Thompson would have stayed at the cell exercising oversight of staff, and once Ms. Roselle was there, he would have communicated the salient information to her. In my view, in an ideal world, Inmate S would not have been at CECC, but receiving appropriate medical treatment in a psychiatric facility. In that instance, Mr. Thompson would not have needed to advocate on behalf of Inmate S, while placating his staff, and while having to comply with a direct order, only to be rebuffed and placed in the very situation he attempted to avoid. His judgement was not accepted by the Employer and his authority was challenged by staff. And yet he had a job to do.

160It is the case that Mr. Thompson failed to remain at the cell exercising oversight of staff, although even had he remained, I have concerns about his ability to have effectively managed the use of a spit hood, given his lack of training and level of knowledge at the time. Having left the cell area, he failed to communicate sufficient and/or salient information to effect a clear transfer of authority to the Acting Sergeants or to Ms. Roselle. I find that this allegation has been established and that the Employer therefore had cause to discipline Mr. Thompson.

161In summary, allegation #1 has been established in part. Allegation #2 has not been established. Allegation #3 has been established.

Dawn Roselle

Allegation #1 - That on December 15, 2016, you improperly directed staff to move [Inmate S’s] handcuffs from the front to the rear while in a prone position.

162DRD Houghton acknowledged that there was nothing inherently improper in moving the cuffs to the back in order to gain control of the inmate. Nor did he indicate that moving the cuffs to the back while prone was inherently inappropriate. The “Defensive Tactics – Self-Directed Learning – Restraints” materials (page 17 and following) speak specifically to proning a high risk inmate in order to cuff them from behind. The Security Control Equipment Policy indicates that it is leaving the inmate prone with cuffs to the back that is dangerous. The problem was, once cuffed to the back, Inmate S was left in a prone position. To that degree, this matter is really a sub-set of allegations #3 and #4.

163The other part of this allegation is the assertion that Ms. Roselle improperly “directed” staff to move the handcuffs to the back. DRD Houghton concluded that she was the permanent Sergeant and was therefore in charge.

164With respect to moving the cuffs to the back, the evidence establishes that Ms. Roselle did not initiate the suggestion, there was consultation between ASgt Comtois and Ms. Roselle, and that there was a consensus that it was appropriate as a means of sufficiently controlling Inmate S so as to allow staff to exit the cell. DRD Houghton acknowledged that there was a search for “a common understanding”, a concept distinct from giving direction, suggesting that the line of authority was not as clearly delineated or understood as testified to by DRD Houghton.

165Ms. Roselle acknowledged giving various directions. And the Employer obviously needs a clear line of authority. Consensus driven decision-making can result in an exercise of authority where no one assumes responsibility. However, assigning responsibility to manage an incident to a Sergeant over attending Acting Sergeants solely on the basis of “that’s the Ministry’s way of operating”, runs counter to the training that Acting Sergeants have the same authority as Sergeants. If one has the same authority, one has the same responsibility. I was provided with nothing other than DRD Houghton’s assertion as a basis for concluding that Ms. Roselle knew or ought to have known that, on her arrival at the cell door, she was thereafter solely responsible to take charge and manage the situation, notwithstanding that she was the last Sergeant to attend at the scene and had not been briefed.

166Given that inconsistency between alleged practice and policy and/or a lack of clear policy as to who was to assume authority in respect of managing the incident, Ms. Roselle’s responsibility as a manager for seeing the cuffs moved to the back of Inmate S must be tempered.

167As discussed further below, allegation #1 is established to the extent that Ms. Roselle allowed Inmate S to be cuffed to the back and left in a prone position.

Allegation #2 - That you were untruthful to the Ministry Inspector when you stated that you did not see the spit hood on [Inmate S] until he was in medical distress and you re-entered the cell.

168DRD Houghton’s conclusion in this regard is based on his belief that Ms. Roselle must have known about the spit hood, rather than evidence to that effect. Although she noted in her occurrence report that she overheard someone saying they needed a spit hood, there is no evidence that Ms. Roselle received any information or witnessed that a spit hood had been provided and/or applied. DRD Houghton dismissed out of hand possible explanations for why Ms. Roselle would not have seen the hood on Inmate S, refusing to allow for the possibility, even though CO Rogers had reported not seeing the hood even while in the cell. He attempted to discredit Ms. Roselle, relying on an incident where she had removed herself from a situation after having been threatened by an inmate. The explanations provided by Ms. Roselle as to why she might not have seen the spit hood are plausible. Furthermore, there was nothing in Ms. Roselle’s testimony that would suggest she was not a credible witness so as to warrant dismissing her evidence as having no weight. She made admissions against interest and responded to questions openly. It is as probable as not that Ms. Roselle could not see Inmate S’s head clearly if at all throughout the incident and was not aware of the spit hood until they re-entered the cell.

169I find on a balance of probabilities that allegation #2 has not been established.

Allegation #3 - That you jeopardized the health and safety of staff and [Inmate S] by directing staff to handcuff him to the rear and while in a prone position with leg irons and a spit hood on. This direction was contrary to policy and was not in accordance with the Ministry training you received.

170This allegation again focusses on a conclusion that Ms. Roselle “directed” staff to handcuff Inmate S to the rear. It also relies on a conclusion that Ms. Roselle was aware of the spit hood, an allegation not substantiated by the evidence. Although I have no evidence as to the actual training Ms. Roselle received, she acknowledged being aware that there were risks associated with leaving an inmate prone and in restraints. I accept the evidence that once cuffed to the back, Inmate S calmed down, although I am also deeply concerned that that may have reflected medical distress rather than compliance. DRD Houghton’s evidence did not disclose the Employer’s basis for concluding that Ms. Roselle’s actions in this respect jeopardized the health and safety of staff.

171Ms. Roselle allowed Inmate S to be in a prone position, cuffed to the back, with leg irons on, jeopardizing his health and safety. That allegation is substantiated and is further considered with respect to allegation #4.

Allegation #4 - That contrary to policy, you exited the cell and left [Inmate S] in the prone position, handcuffed to his rear with leg irons and a spit hood on.

172It is the case that when the cell door was closed, Inmate S was in a prone position on his stomach, handcuffed to his rear with leg irons and a spit hood on. There was no dispute that Ms. Roselle knew that leg irons had been applied. As reviewed earlier, I am not persuaded that Ms. Roselle was aware that Inmate S was wearing a spit hood, nor did the evidence support a finding that she was aware that OC foam had been used (and nor did the Employer so find). However, Ms. Roselle acknowledged having some knowledge of the dangers of positional asphyxia.

173Section 6.12.2 of the Security Control Equipment Policy stipulates that someone suffering from excited delirium may be restrained, but if so, must be kept in an upright/sitting position and be continuously monitored. DSO Clancy spoke to section 6.8 of the Spit Hood Policy which stipulates that an inmate wearing a spit hood is not to be left unattended and disagreed with DRD Houghton that it required being in close contact with the inmate. He was not prepared to conclude that Ms. Roselle violated the Spit Hood Policy by observing Inmate S from the cell door, even had she been aware that a spit hood had been applied. Ms. Roselle did monitor Inmate S according to the Security Control Equipment Policy. Her focus was on getting staff out of the cell and ending the incident. That action was also consistent with the priorities set out in the Crisis Management Policy. The Employer did not agree that this situation constituted an emergency triggering the application of that policy. However, having regard to the definition of an emergency in the policy, these circumstances arguably conform. The question is how and by whom is that determined? If the Sergeant charged with managing the situation concludes that it is an emergency, can they be faulted for complying with that policy? No higher level of management provided any guidance or supervision. These comments merely reflect how the Employer remains reliant on the training (or lack thereof), good judgment, and experience of its employees to sort out the minutiae contained in its array of policies and procedures.

174Notwithstanding that lack of clarity, I am satisfied that Ms. Roselle’s obligation to ensure the safety of staff was to be met without jeopardizing the health and safety of Inmate S. I am also of the view that Ms. Roselle similarly understood that to be her obligation in this case. Ms. Roselle did not ensure that Inmate S, while restrained, was not left in a prone position. Had Inmate S been moved to a recovery position by anyone at some point prior to everyone exiting the cell, would he have survived? That question will haunt many for a long time. However, it is also only the last in a series of “what if’s” relevant to Inmate S’s tragic death.

175Allegation #4 is established to the extent that Ms. Roselle allowed Inmate S to be left in a prone position with leg irons on and cuffed to the back, contrary to section 6.12 of the Security Control Equipment Policy. She was aware of the risk of positional asphyxia, although I have serious doubt that she appreciated the full implications and extent of that risk.

176In summary, allegations #1, 3, and 4 are established to the extent described. Allegation #2 has not been established by the Employer.

PENALTY

177In assessing penalty, I adopt the approach taken by the Board in Bazger, supra:

103In determining whether the penalty of discharge should be mitigated, I adopt the approach to the issue of just cause articulated by the Supreme Court of Canada in McKinley v. BC Tel, [2001] 2 SCR 161, 2001 SCC 38, which requires a contextual analytical framework that examines each case on its own particular facts and surrounding circumstances and considers the nature and seriousness of the conduct for which the person has been discharged, in order to assess whether it is reconcilable with sustaining the employment relationship. If it is, then dismissal may be found to be a disproportionate response. If not, then there is just cause for dismissal. Where there is just cause, the law does not require the employer to provide compensation for losses or pay in lieu of notice. Nonetheless, dismissal without cause, but with notice, remains an option for this employer for managerial employees, as noted in Dyson, cited below. The analysis of the Court in McKinley, centered on the proportionality of the sanction to the conduct, implies a consideration of the viability of alternative disciplinary measures to dismissal.

104… The remaining question is whether the mitigating factors are enough to warrant a finding that termination without compensation was an excessive response. Mitigating factors referred to in the Board’s jurisprudence such as Hardy v. Ontario (Ministry of Health), 1997 CanLII 10280 (ON PSGB) (Leighton) and Keating v. Ontario (Community Safety and Correctional Services), 2009 CanLII 15648 (ON PSGB) (O’Neil), include the seriousness of the offence which precipitated the discharge, whether it was premeditated, repetitive, or not, the employee’s record, in the sense of whether he has been a capable employee and enjoyed a relatively free disciplinary history, and whether the employer attempted earlier and more moderate forms of corrective discipline. Generally, the review of mitigating factors is aimed at assessing the prospect of rehabilitation with progressive discipline and the risk of reoccurrence if the employee is reinstated. The factors of insight and remorse are relevant as an employee who understands and acknowledges what went wrong is much less likely to repeat the problematic behaviour.

178Managing a correctional facility is difficult for all involved. Resources are limited such that those on the ground are left trying to ensure that the facility is properly staffed, that staff are properly trained, that infrastructure is functional, and that resources are available for inmates with special needs. The Employer noted what it expected in an “ideal world”. However, no one operates in an ideal world. Systems fail. Judgement calls that seem appropriate at the time can turn out to be flawed, and sometimes mistakes happen. Risk is always being managed. At the same time, those working in correctional facilities are held to a high standard given their responsibility to ensure and maintain the care, custody, and control of persons who have been incarcerated, their freedom denied, either following conviction or, as likely, while on remand and innocent in the eyes of the law.

179Complainants’ counsel is correct in pointing out that the number of policies and procedures expected to be known and understood by Sergeants is significant. The Employer expects Sergeants to be fully versed in those policies and, apart from the training provided, makes that their responsibility, even while the educational material in support of those policies expressly recognizes that practice is crucial. How does one acquire that practice? According to DSO Clancy, it is acquired every day.

180The evidence surrounding the use of spit hoods belies any conclusion that, prior to this incident, these Complainants received any useful practice in the deployment and risks associated with the use of a spit hood. Similarly, Mr. Thompson had never had occasion to transfer an inmate to a new cell in circumstances where that new cell had not been properly prepared, leaving him to decide which policy to follow. While Mr. Thompson had experience dealing with mentally ill inmates, that experience was discounted and overruled. To the extent that the Employer may have had larger concerns, none were articulated other than a view that ICIT would not be activated where an inmate was compliant.

181Discipline in the employment context is understood to be progressive, having regard to prospects of correction and rehabilitation. General deterrence may also be a factor. Termination of managerial employment without notice and for cause is typically understood as responsive to serious misconduct or as the culmination of a disciplinary history.

John Thompson

182Mr. Thompson filed a deficient use of force report in respect of the events of December 15, 2016. He also failed to remain at the cell exercising oversight of staff and/or failed to communicate sufficient and/or salient information to effect a clear transfer of authority to the Acting Sergeants or to Ms. Roselle. That failure of oversight and/or communication is significant. However, it was not premeditated and was brought on by a combination of frustration, pain, and a sincere attempt to comply with his orders and deal with the unanticipated circumstances of the situation. To that extent, I am persuaded that Mr. Thompson was overwhelmed by the circumstances and failed to perform at a standard that could reasonably be expected of a Sergeant. However, Mr. Thompson’s actions, with respect to all allegations, reflect a failure in performance rather than misconduct.

183Mr. Thompson’s record was discipline-free. There was no suggestion but that he was otherwise a capable employee with a long history of valuable service to the Employer. His attempts to advocate on behalf of both Inmate S and his correctional staff leading up to the incident cannot be ignored. Mr. Thompson was remorseful and I have little doubt but that he has suffered wondering whether his actions or inactions played any role in Inmate S’s death.

184Mr. Thompson was a fixed term employee. I am not persuaded that the Employer has established that it had cause to terminate Mr. Thompson’s employment. The complaint is therefore allowed to that extent. However, the Employer did have cause to discipline Mr. Thompson. It also would have been in a position to terminate Mr. Thompson’s employment with notice. I hereby remit Mr. Thompson’s complaint to those parties to consider the issue of the appropriate remedy in those circumstances.

Dawn Roselle

185The allegations found to have been established against Ms. Roselle reflect the progression in the use of restraint. Ms. Roselle allowed Inmate S to be cuffed to the back and left in a prone position and she allowed Inmate S to be in a prone position, cuffed to the back, with leg irons on. Finally, Ms. Roselle exited the cell leaving Inmate S in a prone position with leg irons on and cuffed to the back, contrary to section 6.12 of the Security Control Equipment Policy. That policy requires that someone not be left in a prone position on their stomach while these other restraints are being used.

186The seriousness of leaving someone prone on their stomach while also restrained is evident from the policy, that states such positioning could lead to sudden death. This is a serious breach of policy by Ms. Roselle. It is a breach of policy apparently also committed by nine other staff members present as, according to the Employer, all staff are expected to know and comply with this policy. I am persuaded that this speaks more to training than to any exercise of supervisory authority, or lack thereof by Ms. Roselle.

187Ms. Roselle was a long service employee with a discipline free record. She had worked as a Sergeant for about two years when this incident occurred. Her actions were not premeditated and reflect a failure to comply rather than intentional misconduct. She was remorseful.

188In concluding that the employment relationship was irreparably damaged, DRD Houghton testified that Ms. Roselle couldn’t be trusted not to repeat similar failings in the future. His view of whether she appreciated her actions and whether she was remorseful was, at minimum, contradictory. I have no doubt that Ms. Roselle now fully appreciates and understands that an inmate is not to be left prone while restrained with cuffs to the back. I also have no doubt that she would not now allow staff to leave an inmate in that position whether that staff were under her direct supervision or whether she was an additional manager responding to an incident. She also now appears to understand the spit hood policy, even while that was not within her consideration at the time. In addition, the Employer did not suspend Ms. Roselle’s employment following the incident. It trusted her to continue to act in a managerial capacity.

189The outcome of December 15, 2016 was horrific. Responsibility may ultimately be assigned outside this employment dispute. However, within the employment context, the incident provides a litany of learning opportunities for all involved. There is little if any likelihood of Ms. Roselle repeating this breach of policy were she to be reinstated. Similarly, she will likely ensure that the assignment of supervision is clear. Her experience of this incident could prove valuable in ensuring that others do not make the same mistake. It is short-sighted to terminate a person’s employment and lose that experience when it does not arise from intentional misconduct and it is apparent that the conduct can be corrected.

190I am not persuaded that the employment relationship is irreparably damaged due to any likelihood of this failure recurring. Nor did the Employer establish that Ms. Roselle was untruthful. Having regard to all of the above, I find that the termination of Ms. Roselle’s employment was excessive in all of the circumstances. I hereby direct that she be reinstated to employment as a Sergeant, but without compensation except for recognition of continued service and seniority. She is entitled to receive refresher training and any other usual orientation on her return to work.

SUMMARY

191Mr. Thompson was a fixed term employee. I am not persuaded that the Employer has established that it had cause to terminate Mr. Thompson’s employment. The complaint is therefore allowed to that extent. However, the Employer did have cause to discipline Mr. Thompson. It also would have been in a position to terminate Mr. Thompson’s employment with notice. I hereby remit Mr. Thompson’s complaint to those parties to consider the issue of the appropriate remedy in those circumstances.

192Having regard to all of the above, I find that the termination of Ms. Roselle’s employment was excessive in all of the circumstances. I hereby direct that she be reinstated to employment as a Sergeant, without compensation but with recognition of continued service and seniority. She is entitled to receive refresher training and any other usual orientation on her return to work.

193I will remain seized with respect to any and all issues that may arise in connection with the interpretation and/or implementation of this award as it pertains to either Complainant, including any matter of remedy as it pertains to Mr. Thompson.