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HomeMy WebLinkAbout2011-3658.Esser.15-12-14 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2011-3658, 2011-3659, 2012-0150 UNION#2012-0128-0002, 2012-0128-0003, 2012-0128-0007 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Esser) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Michael V. Watters Vice-Chair FOR THE UNION Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Jennifer Richards Treasury Board Secretariat Legal Services Branch Counsel HEARING February 6, March 15, 18, 25, April 16, 17, 26, May 14, 30, July 8, August 15, 20, October 3, 9, 18, December 3, 4, 10, 2013; January 14, 21, February 5, 11, 12, March 26, May 14, 28, 29, June 19, August 22, September 19, October 8, 9, December 3, 2014; January 21, 27, 2015. Decision [1] This proceeding arises from the termination of Mr. Dave Esser and Mr. Dean Esser from their employment as Correctional Officers (COs) at the Sarnia Jail on March 15, 2012. Mr. Dave Esser is the father of Mr. Dean Esser. He was also the President of the Local Union at the time of his termination and continued in that capacity thereafter. [2] The letter of termination with respect to Mr. Dave Esser sets out the following grounds for the termination: “1. On August 31, 2011, you exercised excessive use of force when you: a) used your hand to grip the neck/throat area of Inmate ….. to pin her up against a wall in the second floor hallway; b) delivered three (3) closed-fist strikes to the head and/or shoulder of inmate ….. in the cell of Area 5. By exercising an excessive use of force you engaged in serious misconduct in carrying out your role, responsibilities and duties as a Correctional Officer and as a Ministry representative in contravention of the Ministry of Correctional Services Act and Ministry policies and procedures. 2. On August 31, 2011, in the cell of Area 5 you spoke to Inmate ….. in a threatening and derogatory manner by calling her a “pussy” when she covered her head in response to you physically gesturing to deliver a closed-fist strike, in contravention of Ministry policies and procedures, and the Ontario Human Rights Code. 3. You engaged in serious misconduct in carrying out your role, responsibilities and duties as a Correctional Officer and as a Ministry representative when you failed to provide an accurate and precise description of all circumstances surrounding this use of force and therefore made a concerted and purposeful attempt to conceal the excessive use of force, in violation of Ministry policies and procedures. 4. You directly and/or indirectly encouraged your colleagues to conceal the excessive use of force in their respective occurrence reports by passing around your initial occurrence report to colleagues and providing a verbal account of the details you provided in that report, in contravention of Ministry policies and procedures.” - 2 - [3] I have anonymized the name of the inmate for purposes of this Decision and refer to her as ‘inmate A’ throughout. [4] The letter of termination with respect to Mr. Dean Esser sets out the following grounds for the termination: “1. That on or about October 6, 2011, you used terminology and language towards another Correctional Officer in relation to her involvement and reporting obligation in a use of force incident, in an attempt to intimidate the Correctional Officer into remaining silent during the CISU investigation process, in violation of Ministry policies and procedures. 2. By attempting to intimidate another Correctional Officer into remaining silent during the CISU Investigation, you acted with intent to obstruct the CISU Investigation in violation of the Ministry of Correctional Services Act, and failed to act in accordance with Ministry policies and procedures.” [5] The above letter of termination in respect of Mr. Dean Esser also contains the following paragraph: “As you are well aware, the “code of silence” operates to compel correctional officers to remain silent about the action of colleagues or face serious repercussions in the workplace. The code protects correctional officers who engage in misconduct and, in turn, can actually condone and encourage misconduct. The “code of silence” also operates to turn correctional officers who elect not to remain silent into victims. The Ministry takes its responsibility of providing a safe, healthy and responsive environment for both staff and inmates seriously; therefore by perpetuating the “code of silence” you have committed serious misconduct. You have engaged in a misguided attempt to protect a correctional officer who abused his position of power and trust when he engaged in an excessive use of force against a female inmate. Given the responsibility of the Ministry to protect inmates under its custody and control, your actions are of significant concern. You have compromised your employment relationship with the employer and fundamentally breached the significant trust instilled in you. As such, the employer/employee relationship has suffered irreparable damage.” [6] The hearing in this matter was lengthy. A total of nineteen (19) witnesses presented evidence on behalf of the parties over the course of thirty (30) hearing dates. The evidence, both oral and documentary, was substantial. Additionally, counsel for the - 3 - parties required five (5) days to complete closing argument, during which reference was made to a significant number of authorities relevant to the respective positions. It is unnecessary to refer to all of the evidence and argument in this Decision. It has all, however, been considered at length. [7] The following individuals gave evidence on behalf of the Employer: Paul Kitchen- Mr. Kitchen was the Security Manager at the Sarnia Jail at the time of the incidents material to this case. He reported directly to the Superintendent of the facility while in this position. Mr. Kitchen commenced employment in Corrections in 1993 as a Correctional Officer. He was later appointed as an Operational Manager (OM). Mr. Kitchen worked at the Windsor Jail for a period of seventeen (17) years before relocating to Sarnia in 2010. He became the Deputy Superintendent of Sarnia Jail in March, 2013. While Mr. Kitchen participated in the investigation process, he was not involved with the actual decision to terminate either grievor; Steven McNair- Mr. McNair has worked in the Ontario Public Service for thirty-two (32) years in a variety of positions, all within the Ministry of Community Safety and Correctional Services. He became an Inspector with the Correctional Investigation and Security Unit (CISU) in 2006. In this role, Mr. McNair has personally conducted approximately seventy (70) investigations, eight (8) of which related to allegations of excessive use of force. The authority of an Investigator flows from section 22 of the Ministry of Correctional Services Act, R.S.O. 1990, Chapter M.22. Investigations are to be conducted pursuant to the Adult Institutions Policy and Procedure (Subject No. ADI 02 1701). The Investigation Report completed by Mr. McNair in this instance is dated February 2, 2012 and was filed as exhibit #62 in this proceeding. Mr. McNair conducted a total of twenty- two (22) interviews as part of the investigative process. An audio recording of the interviews and written transcripts of same were filed in evidence (exhibits #64 and #65); - 4 - Inmate A- This person is a forty (40) year old female who, in the past, has experienced problems with substance abuse. Inmate A was first admitted to the Sarnia Jail in or around 1996 and has returned to the facility as an inmate on many occasions thereafter. As a consequence, she is very familiar to the Correctional staff working in the Jail. Inmate A was admitted to Sarnia Jail on August 30, 2011 after having entered a guilty plea to a charge of theft. She was incarcerated at the Elgin Middlesex Detection Centre (EMDC) at the time she gave evidence on April 26, 2013; Greg Ireland- Mr. Ireland has been employed by the Ministry of Community Safety and Correctional Services for twenty-eight (28) years. He is currently the Provincial Use of Force Auditor for the Ministry. Between 2004 and 2013, Mr. Ireland served as the Provincial Co- ordinator, Use of Force Programs, at the Ontario Correctional Services College. Prior to that position, he worked as the Tactical Team Co-ordinator at the same college between 2000 and 2004. Mr. Ireland also worked on the floor of several institutions as a CO, Youth Services Officer and Operational Manager (OM). His Statement of Qualifications was filed as exhibit #89. The Union advised that it was prepared to treat Mr. Ireland as an expert on the use of force for purposes of this case; Jaime Vella- Ms. Vella commenced her employment as a CO at the Windsor Jail in February, 2002. She relocated to the Sarnia Jail as a CO in September, 2002 and has continued to work there to date; Sonya Perrin- Ms. Perrin has worked as a CO at the Sarnia Jail since 2002; Deb Lucas- Ms. Lucas is an OM at the Sarnia Jail. She has been employed there since 2003; Ken Fitzgerald- Mr. Fitzgerald was the Superintendent of the Sarnia Jail at the time material to this proceeding. He was previously the Superintendent of the Stratford Jail. Mr. Fitzgerald has worked in the Ontario Public Service for approximately twenty-one (21) years. He has prior experience as a CO and an OM and served as a Union Steward and Vice-President of the Local Union while working at the Walkerton Jail. Mr. Fitzgerald was the decision maker in this instance and - 5 - signed both of the letters of termination referenced above. [8] The following individuals gave evidence on behalf of the Union: Dave Esser- Mr. Esser has been employed as a CO at the Sarnia Jail since 1986. He became a classified staff member in 1987 and worked as a CO2 up until his termination in March, 2012. As previously noted, Mr. Esser was the President of the Local Union at the time he was terminated. He served in this capacity for approximately eighteen (18) years over the course of his career at the Sarnia Jail. As President, Mr. Esser was a member of the Local Employee Relations Committee (LERC); Dean Esser- Mr. Esser commenced employment at the Jail in 2001. He became a member of the classified staff in 2008. Mr. Esser served on the Cell Extraction Team between 2002 and 2010. He acted as a Union Steward between 2003 and 2008 and was on the Scheduling Committee between 2009 and 2012. As noted above, he is the son of Mr. Dave Esser; Tony Marshall- Mr. Marshall has worked as a CO for approximately twenty (20) years. He started his employment in that position at the EMDC and relocated to the Sarnia Jail in May, 2011; Melissa Baxter- Ms. Baxter has worked as a CO at the Sarnia Jail since 2006. She also serves as the Secretary of the Union’s Executive Committee; Joel Bissonnette- Mr. Bissonnette has worked as a CO for twelve (12) years. All of this time, with the exception of a short period at the start of his career, has been spent at the Sarnia Jail. Mr. Bissonnette is the Chief Steward and serves on the Union’s Executive Committee; Cindy Plain- Ms. Plain started as a casual Registered Nurse (RN) at the Sarnia Jail in September, 2003. She became full-time in 2006. Between April, 2012 and August, 2013, Ms. Plain worked as the Acting Health Care Manager. She returned to her RN position after this acting assignment; - 6 - Steve McMahan- Mr. McMahan has worked as a CO since November, 1998. His first eight (8) years were spent at the EMDC. He has been at the Sarnia Jail since 2006; Chelsea Trumble- Ms. Trumble has worked as a CO at the Sarnia Jail for seven (7) years. She previously served as Secretary of the Union’s Executive Committee. Ms. Trumble left that position in September, 2013; Charlie Turner- Mr. Turner has worked as a CO at the Sarnia Jail for his entire career starting in 2009; Lindsay Charrette- Ms. Charrette has worked as a CO at the Sarnia Jail for her entire career starting in 2006; Jennifer Mitchell- Ms. Mitchell has worked as a CO at the Sarnia Jail since December, 1996. At the time she gave evidence in September, 2014, she had been Vice- President of the Local Union for a period of four (4) years. [9] The incidents of August 31, 2011 involving the allegation of excessive use of force took place at two (2) locations on the second floor of the Sarnia Jail. The alleged grip to the neck and throat area of inmate A occurred in the hallway in close proximity to the Medical Unit. The alleged closed-fist strikes to the head and or shoulder of the inmate occurred in the cell of Area 5. That cell is located at the south-east corner of the hallway. A Video Court Room is located at the opposite end of the hallway on the north side. A Health Care Unit is located on the south side of the hallway, approximately one- third (1/3 rd) of the way between the Video Court Room and Area 5. Lastly, a Guard Station is located adjacent to Area 5. For purposes of ensuing the security of the Jail, I will not further detail the second floor layout. Such layout is more clearly shown in diagrams appended to exhibit #62. [10] Inmate A, CO Vella, CO Perrin, CO Dave Esser, RN Plain, CO Turner and CO Charrette provided direct evidence as to the events of August 31, 2011. It is necessary - 7 - to review their evidence at some length. I note, at this juncture, that inmate A was interviewed by Mr. Kitchen on September 7, 2011 and that inmate A and all of the above-mentioned individuals were subsequently interviewed by Inspector McNair as part of his investigation. All of the interviews occurred well before they presented evidence in this proceeding. Inconsistencies between their evidence and interviews will be addressed later in this Decision. [11] Inmate A testified that she started to drink alcohol at age fourteen (14) and started to use cocaine at age seventeen (17). It was her evidence that she progressed to oxycontin in 2010 and crystal meth by 2011. She stated that she was weak and depressed when admitted to the Sarnia Jail on August 30, 2011. In her words, she was “dope sick” due to the prior intake of oxycontin and crystal meth. Due to her condition, inmate A was placed in the single cell in Area 5. That cell is frequently used to house female inmates who are sick. Inmate A advised that she weighed one hundred and twenty-seven (127) pounds at the time of her admission. [12] Inmate A stated that on August 31, 2011, she was initially taken from Area 5 to Video Court. She testified that once her appearance in Video Court was completed, she was told she was proceeding to Health Care and then back to Area 5. It is clear from her evidence that inmate A did not want to return to Area 5. Rather, she wished to go to the female range located in Area 8. By way of explanation, inmate A reiterated that she was dope sick and claimed that the other inmates in Area 8 would help and comfort her. [13] Inmate A testified that, once in Health Care, the nurse told her she had to return to Area 5 as she was sick and was “coming down”. She indicated that she was crying - 8 - and was pretty emotional about having to return to Area 5. Inmate A described herself as “more upset than angry”, as she “wanted to be on the range with the girls”. Inmate A could not recall which COs were with her in Health Care. She maintained that she did not yell at anyone while there, but simply asserted in “a sad voice” that she did not want to go back to Area 5. In cross-examination, inmate A acknowledged that she may have bumped into a garbage can when leaving the Health Care Unit. She did not recall having kicked it, but conceded that she possibly might have. [14] Inmate A stated that after leaving Health Care, she stopped in the hallway at a spot close to the Medical Unit. She recalled that CO Vella and CO Perrin were with her in the hallway. She did not recall the names of other COs who were also there. It was her evidence that OM Al Cameron was not there at that point in time. [15] Inmate A said that after stopping, she said “No one touch me, I feel like I could hit someone”. In cross-examination, she stated that her exact words were, “Nobody touch me, I feel like I am going to hit somebody”. Inmate A stated the aforementioned comment was directed at the COs who were escorting her back to Area 5. She maintained that she did not raise her voice when making the comment, as she was weak and sick. From her perspective, the words were not said in an angry tone. She described herself as having been upset. Inmate A denied that she said either “I’m going to punch you in the face” or “I’m going to fucking punch you in the face” to CO Dave Esser. Inmate A recalled that her hands were down in front of her at the time the comment was made. - 9 - [16] In cross-examination, Inmate A stated that she made the above comment, as she did not want anyone to touch her. She believed that she might be grabbed by the COs as she had stopped in the hallway and had repeated her aversion to being returned to Area 5. [17] Inmate A testified that as soon as she made the above comment, CO Dave Esser “came out of the blue”, grabbed her and put her against the wall with his hands on her throat. She described it as a “choking holding grip” of her throat and stated that CO Esser’s hands were on her neck for a period of five (5) to six (6) seconds. In her words, the hold raised her up on her “tippy toes” for about (5) seconds. Inmate A did not recall which of CO Esser’s hands were placed on her throat. She did recall that her back was touching the north wall in the hallway at the time and that CO Esser was standing in front of her. Inmate A stated that during this encounter, she heard CO Esser say “you are going to hit me”. She did not remember if CO Vella had ahold of her arm while CO Esser had her up against the wall. She agreed it was possible that CO Vella did restrain her in this fashion. [18] Inmate A stated that she felt “weak and hurt” while CO Esser had his hands on her neck and throat area. In cross-examination, she said she was upset but not angry at the time. She recalled that she was crying and attempted to push CO Esser’s hand away from her neck. It was inmate A’s evidence that she did not say anything to CO Esser when he had ahold of her. She testified that she was then unable to say anything, as she was being choked. She advised that once CO Esser released his grip, she made the following comment: “I can’t believe after all these years, you’d do this to - 10 - me”. Inmate A explained that she had known CO Esser since she was about twenty- two (22) years of age. [19] Inmate A stated that, after being released, she walked to Area 5. It was her evidence that CO Esser and CO Vella did not have ahold of her arms as they all proceeded to the cell. She positioned them behind her as they walked down the hallway. Inmate A recalled that all of the COs from the Health Care Unit followed them down the hallway. [20] The door to the cell in Area 5 opens outwards. Inmate A testified that when she entered the cell, she pushed on the door with her side and shoulder to prevent it being shut and locked. She did not recall using her foot to keep the door from closing. Inmate A stated that she acted in this manner, as she did not want to be in Area 5. It was her recollection that CO Vella and one (1) other CO were trying to shut the cell door. She also recalled that CO Dave Esser was in the immediate area. Inmate A indicated that there was a cup of milk sitting on a cross bar of the cell door, and that it spilled as a result of all of the pushing on the cell door. It was her evidence that this to and fro did not last long as she “gave up” because she was weak. She agreed that she was being difficult during this encounter, as she hated being by herself in a cell. Inmate A did not recall saying anything to the COs while they were all struggling with the door. Ultimately, the COs were unable to close and secure the door. At that juncture, they opened the door and started to enter the cell. Inmate A testified that she then “ran to the bed” on the left side of the cell when CO Vella, CO Esser and CO Perrin “came at her”. Inmate A stated that she positioned her left side on the bunk, with her head at the top of the bunk and her back against the wall. She added that she covered her head - 11 - because she did not want to be hit. Inmate A, during the course of her evidence, described herself as being in a fetal position at this point in the incident. [21] Inmate A testified that CO Vella applied pressure to her legs and that CO Dave Esser was beside the bed with CO Perrin being behind him. She denied that CO Vella held her legs because she was kicking or lashing out at the COs. Indeed, she asserted that she “wasn’t kicking at all”. It was her evidence that to this point she had said nothing to the COs while she was lying on the bunk. [22] Inmate A testified that while on the bunk, CO Esser “fake punched” her. She stated that CO Esser manoeuvred his fist, as if he was about to punch her. It was at that juncture that inmate A moved to cover her facial area with her hands. It was inmate A’s evidence that when she did this, CO Esser called her “a pussy”. In cross- examination, she insisted that the word “pussy”, and not the word “whimp”, was used. Inmate A claimed that, in response, she “tapped” CO Esser in the knee very lightly with her foot. [23] Inmate A maintained that after she tapped CO Esser in the above-described fashion, he hit her three (3) times on the upper right side of the forehead. She stated that, while being hit she brought her hands and arms across her face. It was inmate A’s evidence that she was still able to observe both CO Esser’s hand in a fist and his “white knuckles”. She was unsure as to which hand he used to deliver the strikes. Inmate A recalled that she felt CO Esser’s knuckles hit her. She described the hit as “kind of hard”. In her words, the strikes “left a goose egg as large as a marble”. While inmate A’s recount of the actual sequence of events was not crystal clear, she acknowledged that she again tapped CO Esser with her foot after she was struck. - 12 - [24] Inmate A asserted that she was not “kicking out” while on the bunk. She suggested that such an action would not have been possible, as CO Vella was applying some pressure against her legs. In this regard, she denied kicking CO Vella during the encounter in the cell. When reminded in cross-examination that she had previously told Mr. Kitchen she had kicked CO Esser in the knee, her recorded reply was “aren’t kick and tap the same thing”. [25] Inmate A testified that the punches received from CO Esser made her feel devastated, hurt and shocked. She stated she felt this way because “inmates are supposed to feel safe in the Jail”. [26] Inmate A stated that no CO gave her verbal directions or orders while she was on the bunk. She claimed that the only thing she heard in that time frame was CO Perrin going “oh” after each strike was delivered. [27] After being struck, inmate A began to yell and scream at CO Esser. She commented, “is that all you’ve got, the best you can do”. Inmate A also suggested to CO Esser that her daughter could hit harder than he did. She did not recall calling CO Esser “a pussy” after the encounter, but acknowledged it was possible that she did. At some point, she also said something about CO Esser reminding her of an ex-boyfriend. That person had previously abused inmate A and had been incarcerated in the Sarnia Jail for an assault on her. It is not entirely clear which of these comments were made with COs in the cell and which were made after they left the cell and locked the door to same. - 13 - [28] Inmate A stated that she did not believe she needed to see a doctor about the goose egg on her head. She explained that, at the time, she did not feel like seeing anyone. [29] In cross-examination, Inmate A acknowledged that she has a lengthy criminal record. The record includes six (6) prior convictions for theft, and single convictions for assault causing bodily harm, assault, assaulting a Police Officer, impaired driving, and breach of a Court Order. [30] CO Vella testified that she was familiar with inmate A and that she has dealt with her approximately ten (10) times during the inmate’s numerous incarcerations. She described inmate A as a “handful” and noted that she was usually under the influence of some substance at the time of her admissions. CO Vella observed that the inmate was frequently belligerent and verbally abusive with staff as a result of such condition. In her opinion, the inmate’s behavior has gotten progressively worse over the years due to various drug addictions. CO Vella noted that inmate A’s appearance has also changed in that she used to be “a pretty solid bigger girl and now is skinny and frail”. She, nonetheless, described her as “a loose cannon” and “very strong” as of August 31, 2011. CO Vella volunteered that she had heard of instances where the inmate had knocked out males during a physical encounter. CO Vella, however, has never been involved in a physical altercation with the inmate. [31] On August 31, 2011, CO Vella was assigned to Areas 5, 6 and 7, these being the Segregation Areas and the Medical Unit. CO Vella’s first contact with inmate A was when she, CO Esser and OM Cameron escorted her from the cell in Area 5 to Video Court. She recalled that during the escort, the inmate told OM Cameron that she did - 14 - not want to go back to Area 5 but, instead, wanted to go to the female range located in Area 8. She further recalled that OM Cameron informed the inmate that she would not be returning to Area 8. CO Vella described the attendance at Video Court as being of short duration. [32] Inmate A was next taken to the Health Care Unit by CO Vella and CO Dave Esser. CO Vella stated that CO Turner and CO Charrette were also present in the immediate area. CO Vella testified that during the escort to Health Care, the inmate was “yelling and complaining” that she wanted to go to Area 8 and not Area 5. At that juncture, OM Cameron repeated that she had to return to Area 5. It was CO Vella’s evidence that inmate A responded by saying she was not going to go back to that area. [33] CO Vella testified that, once in the Health Care Unit, inmate A became verbally abusive, loud and belligerent towards Health Care staff and the COs present. It was her evidence that she, CO Turner, CO Charrette, OM Cameron and CO Dave Esser were in the Unit at the time. CO Vella stated that the inmate was not cooperating with the RN who was attempting to complete the assessment. She recalled the inmate swearing and saying that she did not want to return to Area 5 as there was nothing wrong with her. CO Vella believed that the health care assessment only took a minute or two. She did not recall inmate A doing anything physically disruptive or aggressive while in Health Care. In this regard, she did not remember the inmate kicking a trash can while there. CO Vella acknowledged the possibility this might have occurred. [34] CO Vella testified that inmate A got louder and was swearing and yelling after exiting the Health Care Unit and entering the hallway. The inmate continued to assert that she was not going back to Area 5. At this point, the inmate was walking on her own - 15 - in the direction of Area 5. CO Vella recalled that she and CO Dave Esser were with the inmate. She was on her left side and CO Esser was on the inmate’s right side. CO Vella indicated that OM Cameron was behind them and that CO Turner and CO Charrette were behind him. [35] CO Vella stated that as they were all walking towards Area 5, the inmate made a motion to turn around. At that juncture, they were a few steps outside of the Health Care Unit and just past the bulkhead door to the Medical Unit. It was CO Vella’s evidence that when the inmate made the motion to turn around, CO Esser grabbed the inmate’s arm in a C-clamp. She explained that his hand was just above the inmate’s elbow. She could not recall which of the inmate’s arms CO Esser grabbed. CO Vella testified that CO Esser then said to the inmate. “Get going to the cell”. OM Cameron made a similar comment. [36] CO Vella testified that once CO Esser had ahold of the inmate and was escorting her by the arm, the inmate moved towards him and said, “I’m going to fucking punch you in the face”. She stated that this was said in a loud tone of voice. CO Vella did not think that the inmate was joking around. She indicated, however, that she did not believe the inmate would follow through with the threat. In her words, the inmate was generally “all talk” and was more of a “verbal problem” for staff. CO Vella did not recall the inmate making any threat towards CO Esser before he placed his hands on her. [37] CO Vella testified that when CO Esser grabbed the inmate’s arm, the inmate started to flail with her arms and to swear. CO Esser then guided the inmate to the north wall of the hallway, such that her back was towards and touching the wall. CO Vella did not believe that she had her hands on the inmate at this time. She conceded, - 16 - however, it was possible that she was also holding the inmate against the wall. CO Vella noted that inmate A continued to flail her arms, swear and be verbally abusive while up against the wall. When asked what happened next, CO Vella answered, “Dave put his hand around her neck”. [38] In CO Vella’s words, CO Esser’s hand was around inmate A’s neck “for a couple of seconds, not even”. She believed that CO Esser had an intent to choke, and did in fact choke, the inmate. CO Vella agreed that the choke could not have been very tight given the inmate continued to yell and be verbally abusive while CO Esser had his hand on her neck. CO Vella further agreed there were no visible signs at the time that the inmate was having any difficulty breathing. It was her evidence that no one else was touching the inmate at this point. She positioned herself just behind the inmate. CO Vella did hear the innate say “let fucking go of me Stick” to CO Esser. On the evidence, “Stick” was the latter’s nick-name within the Sarnia Jail. [39] CO Vella testified that CO Dave Esser had “his hand like a C” around the inmate’s throat. It was her evidence that CO Esser has previously referred to such a hold as the “Dutch Clutch”. I note, at this juncture, that Mr. Esser is of Dutch ancestry. CO Vella understood that the “Dutch Clutch” meant the choking of a person by grabbing them around the neck. She stated that she first heard of the term shortly after starting at the Sarnia Jail in 2002. CO Vella also maintained that such term was widely known within the Jail. She believed that management was aware of it. Ms. Vella agreed that she had not previously seen Mr. Esser use the technique on other inmates. In cross- examination, CO Vella acknowledged that she did not reference the “Dutch Clutch” in - 17 - her interview with Inspector McNair or in her later Allegation Meeting with Mr. Fitzgerald on March 1, 2012. [40] CO Vella did not think that CO Esser lifted the inmate off her feet when he utilized the hold described above. She said that it was possible the inmate was brought to her tip toes as a consequence of the hold. CO Vella was unable to recall, however, if she saw that occur or not. Lastly, CO Vella testified that she did not see CO Esser put gloves on during the course of the incident in the hallway. [41] CO Vella stated that after CO Esser let go of the inmate’s neck, they all proceeded to walk to Area 5. It was her evidence that CO Esser still had ahold of the inmate’s arm or elbow when they proceeded in that direction, and that the inmate continued to flail about and yell. [42] CO Vella testified that when they reached Area 5, inmate A did not want to go into the cell. As a consequence, she and CO Esser moved the inmate into the cell by each holding on to one of her arms. In CO Vella’s words, she and CO Esser “bailed out of the cell” once the inmate was inside. Unfortunately, CO Vella was unable to get the keys to the cell door out of her pocket quick enough to lock the door before the inmate charged at it. It was her evidence that she placed her foot at the base of the door to stop it from being opened. She stated it was possible that she also used her shoulder to apply pressure against the door. CO Vella described the door as being closed, but not locked, at this point. CO Vella testified that she, CO Esser and CO Turner were pushing back against the door, while inmate A was pushing in an opposite direction in an effort to get the door open. Throughout this period, CO Vella was also trying to get the keys out of her pocket so she could secure the cell door. - 18 - [43] CO Vella stated that during this standoff, the inmate “threw” a cup of coffee or milk at them. She advised that the fluids were positioned on a horizontal grill in the cell door. At another point in her evidence, CO Vella said that the inmate “swatted” at the cup knocking the contents towards them. In any event, the contents of the cup hit CO Esser and CO Vella to a lesser extent. CO Vella recalled that CO Perrin and CO Charrette were behind them as this was occurring. [44] CO Vella testified that the cell door was then opened and that she and CO Esser entered the cell. She could not recall who actually opened the door, but said it was opened as the inmate was being combative and had thrown stuff at them. It was CO Vella’s evidence that CO Turner was behind her and CO Esser. She did not know where CO Charrette and CO Perrin were then positioned. She was also unaware if OM Cameron entered the cell. [45] CO Vella stated that once inside the cell, she and CO Esser moved the inmate backwards onto the bunk. In her words, it was a “hands-on” move, as they both had to place their hands on the inmate to move her back. She did not recall if any directions were given to the inmate at the time. CO Vella indicated that the inmate was laying down on the bunk with her right side lifted up and head to the back of the cell wall. It was her evidence that CO Esser was then at the back of the cell positioned close to the inmate’s head and torso area. She stated that she was at the other end of the bunk near the inmate’s feet. CO Vella did not recall the precise location of CO Turner, CO Charrette and CO Perrin. - 19 - [46] CO Vella stated when on the bunk, the inmate was flailing around, kicking her legs and moving her arms. She described the inmate as being very agitated and as struggling to get up. She recalled that CO Esser told the inmate to stop resisting but to no avail, as the inmate wasn’t listening to him. At this point, CO Vella opted to grab the inmate’s feet by the ankles and to apply pressure thereon in an attempt to stop the kicking. She advised that she was still standing when she did this, but was somewhat leaning over the bunk. CO Vella testified that CO Esser was then leaning over the inmate’s torso area and applying some pressure to it with either his arms or upper body. It was her evidence that inmate A then kicked CO Esser twice and her once. CO Vella stated that the kick connected with her right hip. She recalled that it was not a hard kick. She did not know the strength of the kicks directed at CO Esser. CO Vella expressed the opinion that the inmate did not have the intent to injure. [47] CO Vella testified that, when kicked, CO Esser struck the inmate with a closed fist three (3) or four (4) times in the facial area. She later agreed it was possible that there were only three (3) strikes, and that they were to the inmate’s head above the ear. In cross-examination, CO Vella agreed, in substance, that the first strike delivered by CO Esser was very likely with an open hand and not a closed fist. She maintained, however, that the ensuing strikes were all with a closed fist. CO Vella stated that she directly witnessed these closed fist strikes, as she was “just a few feet away from Dave Esser at the time”. In cross-examination, CO Vella stated that she did not know if CO Esser’s strikes occurred before or after the kicks. Similarly, she was not entirely certain whether any of the inmate’s kicks made contact with Mr. Esser in the period between the strikes. - 20 - [48] CO Vella did not recall if CO Esser said anything while the above events were occurring in the cell. She did recall that, after the first strike, inmate A told CO Esser “you punch like a bitch”. It was her evidence that the inmate did not refer to him as a “pussy” or a “whimp”. [49] CO Vella testified that CO Perrin was at the back of the cell at the time the kicks and strikes were delivered. She did not hear CO Perrin vocalize anything after each strike. [50] After the strikes to inmate A, all of the COs exited the cell. CO Vella stated that she then locked the cell door. She advised that the inmate continued to verbally taunt staff and to make derogatory comments. Thereafter, all of the COs left the Area and went their separate ways. CO Vella agreed that there were a sizeable number of COs involved in the events between the Health Care Unit and Area 5 because of the inmate’s actions and her reputation. She did not observe any injuries to the inmate during or after the incident. [51] CO Perrin stated that inmate A has been in and out of the Sarnia Jail between eight (8) and ten (10) times and that, as a consequence, she was familiar with her. She described the inmate as being “verbal” when she first comes into the Jail due to being on drugs. CO Perrin testified that she heard the inmate can be a problem, but she has never witnessed or experienced any issues first hand. In cross-examination, CO Perrin agreed that the inmate could be verbally loud and aggressive, as well as physically violent and aggressive. She indicated that the inmate used to be of medium build, but has become “skinny and smaller” because of her substance abuse. - 21 - [52] On August 31, 2011, CO Perrin was assigned to Areas 8 through 10. Her responsibilities included the kitchen and inmates in the female unit and in protective custody. Inmate A was not in any of her Areas on the day of the incident. [53] CO Perrin had no involvement with the inmate’s health care assessment. She did, however, observe her sitting in the Health Care Unit while being assessed. CO Perrin noted that there were COs standing around the inmate at the time. [54] CO Perrin testified that she was in Area 8 working on the log book when she heard inmate A yell, “Dave, what are you doing”. She agreed that the inmate might possibly have referred to CO Dave Esser as “Stick”, but was pretty sure the inmate used his first name. CO Perrin did not hear the inmate swear when she made the comment to CO Esser. When CO Perrin heard the inmate’s comment, she left Area 8 and entered the hallway. It was her evidence that she then saw the inmate, together with CO Vella and CO Esser, walking down the hall towards Area 5. She recalled that CO Vella was left of the inmate and that CO Esser was to the right. CO Perrin initially testified that the inmate was walking by herself and that she did not see the COs’ hands on the inmate. In cross-examination, she agreed that CO Vella and CO Esser could have had ahold of the inmate. CO Perrin also maintained that she did not see anyone else in the hallway. More specifically, she did not see CO Turner, CO Charrette or OM Cameron. CO Perrin did not recall either CO Vella or CO Esser saying anything at that time. She initially testified that she did not hear the inmate yelling and swearing on the way to Area 5. In cross-examination, when confronted with what was conveyed to Inspector McNair during her CISU interview, CO Perrin agreed it was possible that the inmate was, in fact, yelling and swearing at that time. - 22 - [55] It is apparent from the evidence that CO Perrin did not witness CO Esser place his hands in the area of the inmate’s neck or throat. She entered the hallway after that component of the incident was finished. CO Perrin testified, however, that she has previously heard both CO Dave Esser and CO Charrette use the term “Dutch Clutch”. CO Perrin said it was her understanding that the hold involves a choke. She advised that she has never seen such a hold actually used. [56] CO Perrin next observed CO Vella, CO Esser and the inmate make a right turn into Area 5. She continued down the hallway and also proceeded into Area 5. Once there, she saw all three (3) of these individuals inside the cell. It was her evidence that the inmate was sitting on the bunk, leaning back on her hand. CO Perrin stated that the inmate’s feet were not on the bunk but, rather, were off the floor a bit. From her perspective, the inmate was closer to the cell door than to the back wall of the cell. CO Perrin testified that CO Vella was at the end of the bunk and that CO Esser was near the top of the bunk. She did not see any other COs in the cell. CO Perrin insisted that CO Turner and CO Charrette were not in front of her in the cell. She stated that she was “kitty corner” to CO Vella at this point in the cell. CO Perrin believed she was about one foot (1') away from CO Vella. [57] CO Perrin testified that inmate A was crying, yelling and possibly swearing while on the bunk. Shortly after she entered the cell, CO Perrin observed the inmate kick her foot out at CO Esser. It was her evidence that the kick made contact with CO Esser’s inner thigh. She then observed the inmate kick CO Vella in the middle of the left leg. CO Perrin recalled that the inmate may have kicked three (3) times. She stated, however, that the kicks only connected twice, once with CO Esser and once with CO - 23 - Vella. CO Perrin denied the suggestion that a third kick made contact with CO Esser. In her view, the inmate did not kick hard enough to hurt CO Esser or CO Vella. She added that, from her vantage point, it did not appear the kicks actually hurt either CO. CO Perrin acknowledged that she could not speak for them. CO Perrin advised that after the inmate kicked CO Vella, she told the inmate to “stop it”. [58] CO Perrin stated that the inmate next “went down on the bed”. By way of explanation, she said the inmate’s back was flat against the bunk from her head to mid- section and that her legs were pointed left towards the wall of the cell. CO Perrin recalled that CO Vella had her hands on the top of the inmate’s left leg and that CO Esser was leaning over the inmate and holding her shoulder with his right hand. At that juncture, she believed the situation was over and that the COs would exit the cell. Instead, it was her evidence that CO Dave Esser punched the inmate more than two (2), but less than five (5), times on the right side of her head. CO Perrin maintained that all of the strikes were delivered by CO Esser with a closed fist. CO Perrin stated that it looked to her as if the punches hurt the inmate. She acknowledged, however, that she could not say whether they actually had that effect. She could not recall if the inmate said anything, but agreed she might have after the strikes were delivered. CO Perrin denied that she said “oh” after each of the strikes. [59] CO Perrin did not see CO Esser “fake punch” the inmate. She was also “pretty sure” that she did not hear him call the inmate “a pussy” or a “whimp”. [60] After the strikes were delivered, CO Perrin turned and proceeded to leave the cell. When she did, she saw CO Turner and CO Charrette for the first time. It was her evidence that they were standing behind her, CO Turner to her right and CO Charrette - 24 - to her left. CO Perrin estimated that she was in the cell in Area 5 for five (5) to six (6) minutes in total. She stated that she left when she did, as she “couldn’t stay any longer”. CO Perrin testified that what she observed in the cell made her sick to her stomach. She expressed the opinion that it was unnecessary and unjustified for CO Esser to hit the inmate like he did. In her words, his actions in the cell were “not what we were taught to do”. It was CO Perrin’s judgment that a female CO should have dealt with the situation. [61] When leaving Area 5, CO Perrin saw OM Cameron near the door leading to Area 3. She testified that, on seeing him, she shook her head and just walked away. On exiting the Area, CO Perrin heard the inmate yell the following comment at CO Esser: “You hit like a bitch, you hit like a girl, is that all you’ve got”. [62] On August 31, 2011, CO Turner’s assignment was as General Duty Officer 3. In that capacity, he was required to assist the CO assigned to Areas 3 and 4. [63] CO Turner advised that he gets “a heads up” when inmate A is coming into the Sarnia Jail, as she has been assaultive towards staff in the past. He acknowledged that he had not witnessed her being aggressive with staff prior to August 31, 2011. [64] On August 31, 2011, CO Turner escorted the inmate from Area 5 to Video Court. He stated that, during the walk, the inmate told him she did not want to be in Area 5 and wanted to go to Area 8, the female unit. Once the inmate came out of Video Court, CO Turner escorted her to the Health Care Unit. It was his evidence that he was informed Health Care personnel wanted to see the inmate immediately after her attendance at Video Court. He explained that they did not want the inmate out of her cell more than - 25 - once, as she was coming down off of drugs. CO Turner added that the intent was to avoid an assaultive encounter between the inmate and staff. [65] On CO Turner’s account, nothing untoward occurred in the Health Care Unit. In his words, the inmate was fine. He noted that, while there, she said several times that she wanted out of Area 5 and wanted to go to Area 8. CO Turner stated that once the inmate’s assessment was finished, CO Vella and CO Esser took control of the inmate. He indicated that they had been standing at the door to the Health Care Unit. CO Turner remained in that Unit and talked to staff following the inmate’s departure. He could not recall who he talked to or which RN actually performed the assessment. [66] CO Turner testified that once inmate A left the Health Care Unit, he heard her yell at OM Cameron. He recalled that she told him he could not keep her in Area 5. CO Turner noted that the inmate then started to swear “a little bit”. CO Turner then heard a scuffling noise from the hallway. To him, it sounded like the moving of chairs along the wall and them being pushed into a laundry bin. At that point, CO Turner elected to leave the Health Care Unit for the hallway to see exactly what was going on and to provide backup, if needed. [67] CO Turner testified that when he entered the hallway, he observed that CO Esser had one (1) of his hands around the inmate’s neck. At another point in his evidence, he said that CO Esser’s hand was on the area of the inmate’s throat. CO Turner further observed that one (1) of the inmate’s hands was raised to shoulder height and that it was closed. It was CO Turner’s evidence that CO Esser then used a hand to grab hold of the inmate’s arm and that, as he did so, his hand came off her throat. CO Turner was not sure which hand CO Esser used, and if that hand was the same one he - 26 - had used to grip the inmate’s neck or throat area. He indicated that within a matter of five (5) seconds, CO Esser had one (1) of the inmate’s arms and that CO Vella had control of the other. He noted that both COs had the inmate’s arms positioned behind her back. CO Turner described this as being a normal practice “when an inmate is out of control”. CO Turner advised that all of this occurred within a very short period of time. He estimated that CO Esser’s hand was on the inmate’s throat for less than five (5) seconds. He suggested that the pressure used by CO Esser could not have been much, as the inmate was “yelling pretty good”. CO Turner heard the inmate yell, “Get your fucking hands off me, I am not going back to Area 5”. [68] CO Turner testified that he was close to CO Esser and CO Vella when the above-described events occurred at the north wall of the hallway near the Medical Unit. He stated that when he first entered the hallway, after hearing a scuffle, he passed two (2) other people in the hallway. CO Turner did not recall who they were. He explained that he “went by them pretty quick”. He was uncertain if CO Perrin was in the hallway but agreed that she possibly could have been. In cross-examination, CO Turner agreed that he heard the inmate say “I’ll hit you”, “I will hit someone”, or “I’m going to fucking hit someone”. [69] Once CO Esser and CO Vella secured the inmate’s arms, they walked her directly into the cell in Area 5. CO Turner recalled that the inmate was struggling during the move. It was his evidence that he walked directly behind them. He stated that he could not see who else was in the hallway at the time. [70] CO Turner testified that CO Esser and CO Vella put the inmate on the bunk, and that they then let go of her with instructions to stay there and not move. He stated that, - 27 - once the inmate was released, both COs tried to get out of the cell. CO Turner noted that CO Esser and CO Vella were able to get past the cell door but were unable to close it, as the inmate got up and pushed on it to prevent it being shut. He stated that the inmate was using all of her force to keep the door open and that he, CO Esser and CO Vella were on the outside of the door to keep it from being opened. CO Turner said that one (1) of the inmate’s hands were “right where the door would shut”, and that if they had slammed the door shut the inmate would likely have lost a couple of fingers. He described the inmate as pretty angry at this point in time and stated that she was yelling and swearing. CO Turner testified that, during this standoff, the inmate knocked or hit cups of coffee off the bars. He advised that little of the coffee hit him. [71] CO Turner next recalled that the door to the cell was then opened and that CO Esser and CO Vella entered the cell. He did not recall anything being said before they went in and stated that no direction was given to the inmate. CO Turner expressed the opinion that it “was going to be difficult to get the door shut, if we continued on the same path”. CO Turner testified that he moved about one foot (1') into the cell after CO Esser and CO Vella entered same. [72] CO Turner testified that inmate A ran to the back of the bunk once CO Esser and CO Vella entered the cell. He recalled that the inmate was on her back in the corner and that CO Esser was close to the back wall, while CO Vella was near the bunk. It was CO Turner’s evidence that the inmate started to kick at the two (2) COs from her position on the bunk. He stated that she brought up her knee and was kicking with the bottom of her heel. CO Turner testified that “it looked like” the inmate kicked towards CO Esser’s groin area and that she actually struck CO Vella on the side of the leg. He - 28 - reiterated that, at this point, he was about a foot (1') into the cell and noted that CO Vella was directly in front of him and was blocking his view of CO Esser and the inmate. CO Turner was asked how much force was used by the inmate in the kicks. I recorded his answer as follows: “She was trying to drop them”; and “If she connected in Dave’s groin, he probably would have dropped”. [73] CO Turner next observed CO Esser raise his hand up and deliver a strike towards the inmate. He maintained that CO Vella blocked his view and that, as a consequence, he was unable to see whether CO Esser’s hand made contact with the inmate, whether his hand was open or closed at the time, and exactly where the strike may have landed. With respect to the latter point, CO Turner stated that it “looked like in the face, but I didn’t see contact”. In cross-examination, he agreed it was conceivable that CO Esser’s fists were closed and that he punched the inmate in the face. It was the thrust of CO Turner’s evidence that he observed CO Esser direct only (1) strike towards the inmate. His explanation, apart from the assertion CO Vella was blocking his line of vision, was that CO Charrette pulled on his shirt from behind to get him out of the cell, so that CO Esser and CO Vella could quickly extricate themselves from the situation. CO Turner stated that he then turned around and walked out of the cell. He stated that he was followed out by CO Esser and CO Vella, and that the cell door was then shut and locked. [74] CO Turner stated that when he exited the cell, he did not see any other COs who may have been behind him other than CO Charrette. He adamantly denied that CO Perrin was in the cell at any time during the incident. He noted that, given his position just inside the cell door, she would have had to push him aside to get by. - 29 - [75] CO Turner testified that CO Esser did not say anything when he was in the cell with the inmate. More specifically, he did not hear him call the inmate “a pussy” or a “whimp”. It was his evidence that, once the cell door was secured, the inmate got off the bunk, went to the cell door and yelled: “Stick is a pussy”; “Fuck you, fuck all you guys”; “You can’t hurt me”; and “Stick hits like a pussy”. [76] Approximately fifteen (15) minutes after the events in the cell, CO Turner took an RN from the Health Care Unit to see the inmate in order to assess whether she had any injuries. He was unable to recall the name of the RN. It was his evidence that the RN asked inmate A if she had any injuries and that the latter said she did not. He noted that the RN also asked to see the inmate’s face and that, after some delay, the inmate looked up at the RN. CO Turner recalled that the RN said “that’s good” and that they both then walked out of Area 5. CO Turner advised that he did not then see any injury to the inmate. [77] On August 31, 2011, CO Charrette was assigned as General Duty Officer 1 on the first floor of the Sarnia Jail. It was her evidence that she went up to the second floor that day around breakfast time and was asked to stay there by CO Vella, as an inmate was being taken to Video Court and then to the Health Care Unit. CO Charrette subsequently went into the Health Care Unit and observed inmate A being assessed by RN Plain. She recalled that RN Plain informed the inmate she would be returning to Area 5, as she continued to be a medical inmate. CO Charrette testified that the inmate was not happy to receive that information, as she wanted to go to the female unit in Area 8. It was her evidence that the inmate stated she was not going back to Area 5, and that staff would have to make her go. CO Charrette stated that her view of the - 30 - assessment was obscured by a beam or post. She did note that CO Vella was supervising the inmate at the time. CO Charrette advised that she was the last person to leave from the Health Care Unit and that CO Turner exited from there before her. [78] CO Charrette stated that when the inmate left the Health Care Unit, she spoke to OM Cameron. Her recall was that the exchange occurred in front of the door into Area 7, the Medical Unit. CO Charrette testified that the inmate asked OM Cameron to let her go to Area 8 and that he replied in the negative by telling her she had to go to Area 5. She described the inmate as being “stern” at this time with a “raised” tone of voice. In contrast, she stated that OM Cameron spoke with a normal tone. CO Charrette advised that, at this point, she was standing on the left side of the hallway just outside of the door to the Health Care Unit. She positioned CO Esser as being beside OM Cameron and to his right. She did not recall where CO Vella and CO Turner were, but assumed they were there, as they followed the inmate out into the hallway following the assessment. It was CO Charrette’s evidence that no one else was in the hallway at the time. [79] CO Charrette testified that after the inmate’s exchange with OM Cameron, CO Esser told her she had to proceed to Area 5. It was her evidence that the inmate then said, “I’m going to punch you in the face”. She was sure that the statement was directed at CO Esser. CO Charrette added that, after making the comment, the inmate took a step towards CO Esser. She estimated that she was approximately seven feet (7') to eight feet (8') away from the inmate at this time. - 31 - [80] CO Charrette advised that she then turned to look down the hallway towards the Video Court Room. She said that she did so to ensure no inmates were approaching from that area, as she did not want to have the situation escalated. CO Charrette indicated that there was no one, including other inmates, in the hallway. She believed that her back was turned away from inmate A for three (3) to four (4) seconds. When CO Charrette turned back, she observed that the inmate was up against the wall and that CO Esser had his arms around her upper body. CO Charrette testified that she was not “one hundred percent (100%) sure” where his hands were. More specifically, she did not know if CO Esser’s hands were around the inmate’s throat or collarbone. She also did not recall if he used one (1) or two (2) arms to effect the hold. CO Charrette believed that the inmate was up against the wall for less than five (5) seconds in total. She was not sure how the inmate was then manoeuvred off the wall. She stated that the inmate was yelling while this was all occurring. In cross-examination, CO Charrette volunteered that she recalled a lot of things about the incident but that the hands of CO Esser on the inmate was “a blur”. [81] CO Charrette then observed CO Esser and CO Vella escort the inmate to Area 5. She stated that CO Esser was to the inmate’s left and held her left arm and that CO Vella was to the inmate’s right. She was “pretty sure” that CO Vella had the inmate’s right arm. She was uncertain about what hold the COs were actually applying to the inmate. It was CO Charrette’s evidence that CO Turner was in front of her, as she followed the group down the hallway to Area 5. She stated that OM Cameron may have been behind her. - 32 - [82] CO Charrette was unsure if the inmate walked into the cell in Area 5 or whether she was escorted in. By way of explanation, she said she was “behind someone”. She did observe CO Esser and CO Vella trying to push the cell door closed with their shoulders. At that juncture, CO Turner was in front of her. CO Charrette thought that OM Cameron was behind her. CO Charrette testified that CO Esser and CO Vella were unable to close the door, as the inmate was pushing in the opposite direction to prevent it from being closed. She advised that the door to the cell had not been functioning properly and that she had previously reported the problem to OM Cameron and the Security Manager. It was CO Charrette’s evidence that when the two (2) COs could not close the cell door, they elected to open it. She testified that CO Vella then handed her the keys to the cell. She stated that she was then positioned at the doorway to the cell. [83] CO Charrette testified that CO Esser and CO Vella escorted the inmate to the back of the cell. She recalled that the inmate was kicking and flailing her arms. She did not see CO Esser take a number of steps toward the inmate for purposes of pressuring her to retreat to the back of the cell one (1) step at a time. CO Charrette explained that by then CO Esser, CO Vella and CO Turner were all in front of her. It was CO Charrette’s evidence that she was never inside the cell at any point during the incident. Rather, she was just outside the cell door in the walkway. CO Charrette advised that she did not go any closer to the cell, as she had the keys and wanted to be in a position to close and secure the door once the other COs were ready to exit from the cell. I note that in cross-examination, CO Charrette stated she held the cell door half open and had the key in the door so that she could quickly close and lock it once her colleagues were out. - 33 - [84] It was the substance of CO Charrette’s evidence that she did not see any of the inmate’s kicks make contact and that she did not witness CO Esser hit the inmate. She reiterated that CO Turner was standing in front of her at the time and that he blocked her view of the bunk. In re-examination, CO Charrette was asked why she did not make an effort to look around CO Turner in order to see what was happening. I recorded her answer as follows: “I was focused on getting the door closed when they came out, especially because the door is so wonky”. [85] CO Charrette testified that at one point she pulled on CO Turner’s shirt to let her into the cell given that the inmate was female. In her words, “it made more sense for me to be where Charlie was”. It was her evidence, however, that CO Turner did not respond. Rather, he remained where he was facing the bunk. In her chronology of events, the COs left the cell shortly thereafter. [86] CO Charrette did not hear CO Esser call the inmate a derogatory name while he was with her in the cell. More specifically, she did not hear him call the inmate “a pussy” or a “whimp”. As all the COs were leaving the area, she did hear the inmate refer to CO Esser as “a pussy” and ask him, “is that all you’ve got”. [87] CO Charrette maintained that the only COs in the cell, who were in front of her, were CO Esser, CO Vella and CO Turner. She did not recall CO Perrin being in the cell or being let out of the cell before the door was locked. She did think that OM Cameron was standing somewhere behind her as the incident unfolded. CO Charrette stated that OM Cameron was not actively involved in the incident. - 34 - [88] RN Plain advised that inmate A was a frequent inmate at the Sarnia Jail, and that she was often hard to manage given that she would arrive sick on street drugs. She claimed that the inmate was very aggressive towards staff and other inmates. She noted that other inmates “would come out hurt” or complaining that inmate A “ran the area”, in the sense she would try to take their food, medicines or canteen. RN Plain acknowledged that she has never witnessed the inmate being physically aggressive to either staff or other inmates. She further agreed that the inmate was ultimately compliant with her during their interactions. [89] RN Plain was working in the Health Care Unit on August 31, 2011. That morning, she was told by OM Cameron that the inmate was “dope sick” and that, for that reason, he did not want her to go into Area 8, the female range. OM Cameron asked her to see the inmate as soon as possible. After pouring and handing out some medications, RN Plain proceeded to see the inmate in Area 5. As soon as she arrived there, the inmate told her she was sick. RN Plain assured the inmate that she would see her as soon as she could. When she returned to the Health Care Unit, after completing her medications tour, OM Cameron advised her that the inmate had Video Court and that he would like RN Plain to see her once her attendance there was done. The inmate was subsequently escorted into the Health Care Unit at about 9:05 a.m. [90] RN Plain testified that as soon as the inmate got to the Health Care Unit, she asked OM Cameron to go to Area 8. She recalled that he told the inmate to finish with her and he would then speak to her about it. RN Plain stated that the inmate then threw herself into the chair and sat in “a sprawled out fashion”. In her view, the inmate seemed agitated, as she was swearing a lot, gave short answers, tossed herself from - 35 - side to side in the chair and was looking around at everyone. She added that the inmate did not appear calm and was talking in “a forceful voice”. RN Plain proceeded to complete her assessment and then advised the inmate she could not be cleared to go to the female range as she was sick. She recalled that the inmate was not pleased with being told that and responded by saying: “That’s fucking bullshit”. RN Plain testified that the inmate then focused on OM Cameron and said: “I’m not going back to that fucking area, you are going to have a fight on your hands”. She stated that this was said in a loud and forceful manner, and that the inmate seemed tense at the time. RN Plain noted that the inmate’s hands were clenched and not relaxed. At that point, OM Cameron told the inmate it was time to leave. It was RN Plain’s evidence that the inmate kicked a large garbage can on the way out with sufficient force to knock it over. In her words, the inmate “wound up and gave it a good kick”. [91] It was the substance of RN Plain’s evidence that OM Cameron, CO Vella, CO Turner and CO Charrette were in the Health Care Unit during the assessment of the inmate. She stated that CO Esser was standing at the door to the Unit for at least part of her assessment. She did not know if he remained there the entire time, as her vision was blocked by OM Cameron when he and the inmate left the Unit. RN Plain believed she saw CO Esser standing against the door to Area 7, and trying to get out of the way, when everyone was coming out of the Health Care Unit. [92] RN Plain did not witness the events in the hallway involving the inmate, CO Esser and CO Vella. She testified that shortly after the inmate and OM Cameron left the assessment, she heard feet scuffling on the floor and CO Esser twice say, “Don’t kick me young lady”. She also heard the inmate yell, “Is that all you’ve got bitch”. It - 36 - would seem from the evidence that RN Plain heard comments that may actually have emanated from Area 5 and not from the hallway. [93] RN Plain stated that CO Esser returned to the Health Care Unit after about ten (10) minutes and advised her that the inmate had kicked him twice in the groin area. She suggested he proceed to the washroom to ensure there was no swelling, as there could potentially be long term effects. CO Esser returned within a few minutes to advise her that he was a little sore. RN Plain again cautioned him to monitor his condition going forward. She did not have any further involvement with respect to the incidents material to this case. [94] CO Dave Esser stated that inmate A has been in and out of Sarnia Jail over a period of approximately twenty (20) years. He described her as loud and aggressive and fairly vocal all the time. He further testified that she controlled the range by herself, or with someone else, by threats of physical violence. CO Esser acknowledged that he has never witnessed the inmate being physically aggressive nor could he recall her making a verbal threat to another inmate. CO Esser advised that the inmate had good rapport with all staff. [95] On August 31, 2011, CO Esser was assigned as the General Duty Officer 2 on the second floor of the Sarnia Jail. In this capacity, he served as a backup CO for Areas 5 through 10. He was generally positioned at the east end of the second floor hallway, unless he was needed to assist elsewhere. [96] CO Esser was not involved in the escort of inmate A to Video Court and then to the Health Care Unit. He was, however, aware that she did not want to return to Area 5. - 37 - CO Esser did not see what took place in the Health Care Unit. Additionally, he did not recall hearing anything from inside that Unit, while the inmate was being assessed. During that period, CO Esser and CO Vella were at the east end of the hallway by the Guard Station. CO Esser indicated that OM Cameron stationed himself right across from Health Care near the Medical Unit. [97] CO Esser saw the inmate come out of the Health Care Unit and start to walk in his direction. On seeing this, he stood in front of the doorway leading downstairs and CO Vella stood in front of the doorway giving access to Areas 3 and 4. CO Esser described this as standard procedure for securing the doors in this type of situation. CO Esser observed the inmate approach OM Cameron and start to talk to him. He heard her say to OM Cameron that she did not want to return to Area 5. He also heard OM Cameron give her “various reasons” why she had to return there. CO Esser testified that the inmate got louder and louder as OM Cameron was talking to her. He noted that it got to the point where she was yelling and swearing at OM Cameron and the COs present and was waving her arms. He described her as “extremely confrontational”. It was his recollection that OM Cameron never raised his voice during this exchange. [98] CO Esser testified that he next observed the inmate take a couple of steps back so she could distance herself from OM Cameron and the other COs and position herself up against the wall. At that juncture, he started to walk towards the inmate, as he felt she was exhibiting “defensive tendencies”. It was his assessment that the inmate expected force might be used against her. CO Esser believed that the situation, by then, had escalated to a point where the inmate had become agitated. He advised that CO Vella followed him down the hall and that CO Turner and CO Charrette were the - 38 - other two (2) COs in close proximity to the inmate. CO Esser estimated that there were no more than a couple of minutes from the time he first saw the inmate talking to OM Cameron till he elected to approach them. [99] CO Esser stated that he walked down the hall “to take care of the problem”. He noted that he was the most experienced CO there and that the inmate was familiar with him. He testified that when he reached the inmate, she was up against the wall with clenched fists down by her side. CO Esser was asked why he would involve himself in the situation when there were already two (2) COs and an OM there. I recorded the material parts of his answer as follows: “An unplanned use of force should never be dictated by a Shift Supervisor”; “The situation had escalated and our training is that when a situation escalates, we have to escalate”; “If you stand there for awhile and the Shift Supervisor says ‘go get her’, it is a worst case scenario as you are telling the inmate force is going to be used against them”; and “by the time you use it, the inmate will have used force against you”. CO Esser stated that Supervisors don’t use force and that he has never seen an OM involved in a use of force incident. He further noted that CO Turner and CO Charrette were inexperienced COs. [100] When CO Esser reached the inmate he said “Let’s go” and motioned towards Area 5. It was his evidence that this was not said with a loud voice. CO Esser testified that the inmate then said: “I’m going to hit you”. He stated that she was looking right at him when she made the comment, and that it was said “with a slightly raised voice”. CO Esser added that the inmate did not swear at him when she uttered those words. In his opinion, the inmate moved from physically uncooperative to assaultive on the Employer’s Use of Force Management Model (exhibit #90) when she made the - 39 - abovementioned comment. More will be said about this model below. It was the gist of CO Esser’s evidence that all other options disappeared when the inmate said she was going to hit him and that, in the situation he faced, force was the only way to control the inmate. In his words, “you don’t have to wait till a person hits you before you can respond”. [101] CO Esser testified that, when the inmate said she was going to hit him, he immediately grabbed her right wrist with his left hand. He added that he put his other hand up by her neck with his thumb on her collarbone on one side and his fingers on the collarbone on the other side. CO Esser stated that he held the inmate at arm’s length. In his words, “Very few people can reach me if I have them at arm’s length”. (I note that CO Esser was 6'2” in height while the inmate was 5'7” tall). It was CO Esser’s evidence that he applied the above-described hold for about five (5) seconds. He denied that he was, in fact, choking the inmate and maintained that his hand never went around her throat. CO Esser clarified that whenever he referenced the inmate’s neck, in describing his hold, he actually meant her collarbone. When asked how much pressure he applied, his answer was, “I was basically just keeping her up against the wall”. He did not recall the inmate as having been elevated to her “tippy toes”. CO Esser also claimed that the inmate did not offer resistance when she was being held. [102] In his evidence, CO Esser offered the following reasons for adopting the approach employed: i) When the inmate failed to respond to his direction to go to Area 5, he did not think he had the option to keep talking to her in the circumstances; ii) He did not think the option of stepping back to create distance between himself and the inmate was applicable, as it would only serve to empower the inmate and would provide her with additional distance from - 40 - which to launch an assault on him and/or the others present. In his view, this option would better apply to a situation where a CO was overwhelmed or hurt. CO Esser stated that taking a step back would not have solved the problem of “whether he was going to be assaulted or not”. He suggested that his only real option in the circumstances was to move closer to the inmate and to immediately take control; iii) To protect himself against the assault the inmate said she was going to do, and to limit the amount of resistance she might provide in a use of force situation. The latter, in turn, might the amount of force necessary to ultimately control the inmate; iv) He held the inmate by the neck because she was female. CO Esser testified that it was the only way for a single CO to hold a female inmate against the wall, as the torso is “off limits” because of possible contact with the breast area and potential “pregnancy issues”. He added that a CO cannot grab both of an inmate’s arms in this type of scenario, as it would place their face close to the inmate’s and would expose them to potentially being head butted or spit on; v) In his opinion, the option of taking the inmate to the floor would have been an overreaction. He described that option as a “very uncontrollable thing” given the risk of injury to both the inmate and the CO. CO Esser testified that he felt capable of preventing an assault on himself without resorting to this option; and, lastly; vi) When an inmate escalates, a CO must do likewise. [103] As mentioned, CO Esser had never previously seen inmate A become physically aggressive against either a CO or an inmate over the course of their custodial relationship. He did, however, describe her as a violent person and as one who has fought with Police while being arrested. CO Esser did not concur with CO Vella’s assessment that the inmate would not likely follow through on her threat. He believed that the inmate could very easily have struck him, as there was nothing between them. CO Esser testified that he considered the following prior to responding as he did: the inmate’s size, age, gender; the number of COs present; the location; and the ability of the inmate to carry out the threat. He acknowledged that he did not factor in his past - 41 - history with the inmate. CO Esser asserted that the decision to use force is not based on past history. Rather, it is based on what is actually occurring in front of the CO. [104] The following Directive was issued by the Ministry on November 13, 1996 to District Administrators, Superintendents and Area Managers in respect of the Carotid Restraint Technique (CRT): “INTRODUCTION The carotid restraint (neck restraint) is a neck compression hold applied by the forearm from behind the offender. The hold blocks the two carotid arteries in the neck thereby stopping blood flow to the brain. After three to ten seconds of application the offender is rendered unconscious for a brief period of time. The use of the restraint may result in death or serious injury, including strokes, heart attacks and blood clots, if the hold is not applied properly. On September 4, 1992, all police in Ontario were directed to stop using the carotid restraint technique due to the risks involved. The carotid restraint technique is not part of the Correctional Services Division’s basic training for correctional officers or Institutional Crisis Intervention Team (ICIT) training, and, therefore, should not be used. ……………………………………………………………………………………. POLICY No employee shall use any restraint technique which has not been endorsed by the ministry or without having received training in the use of force and the approved restraint techniques. No employee shall use the carotid restraint technique against an offender or any other neck restraint technique designed to immobilize the offender or interrupt the circulation of blood to the brain. ………………………………………………………………………………………” (exhibit #94) [105] A similar statement concerning the CRT is found in the Adult Institutions Policy and Procedures issued in October, 2009 under the subject heading ‘Use of Force’. The relevant part of the Policy reads: - 42 - “Carotid Restraint Technique No employee will use the carotid restraint technique against an inmate or any other neck restraint designed to immobilize the inmate or interrupt the circulation of blood to the brain. The carotid restraint technique is a neck compression hold applied by the forearm from behind the inmate that may result in death or serious injury, including strokes, heart attacks and blood clots, if not applied properly.” (exhibit #93) The same policy also provides that: “No employee shall use any method of force or restraint techniques that is in violation of Correctional Services policy”. [106] On CO Esser’s interpretation of the above Policy, a CO cannot use a neck hold that would render an inmate unconscious or stop the flow of blood to the brain. He asserted, however, that COs are permitted to use other neck holds that do not have those effects. In his words, “the policy doesn’t eliminate neck holds, it says which ones you can’t do”. CO Esser testified that he did not agree the above Policy barred him from using the hold here in issue. In this regard, he emphasized that he was holding the inmate “with fingers on the collarbone”. He also maintained that the technique employed was not a neck hold. CO Esser commented as follows during the course of his evidence: “When controlling an inmate, you want the least resistance from the inmate as possible. If you are choking an inmate, they will struggle to get out of it and it defeats the purpose of trying to control the inmate”. CO Esser, on this point, stressed that inmate A spoke to him clearly while subjected to the hold. It was his evidence she asked him, “What did you do that for” to which he responded with, “because you said you were going to hit me”. CO Esser further stated that the inmate did not exhibit any duress while being gripped. He recalled that she did not move or struggle but, instead, simply stared at him. - 43 - [107] CO Esser testified that he was familiar with the term “Dutch Clutch” as of August 31, 2011. He stated, though, that he did not coin the term or use such description within the Jail. It was his evidence that a former Manager, some twenty-four (24) years ago, introduced him to the technique and instructed him on how to use it. CO Esser claimed he was told that when employing the technique, he should hold the inmate by the neck up against a wall. CO Esser advised that he has used the Dutch Clutch since first being instructed on it, although he was unable to provide a firm estimate as to the number of times he may have utilized the technique over the ensuing years. He was sure that he would have used it in front of members of management. CO Esser noted that “it wasn’t something that was hidden”. I note that CO Mitchell testified that she has never heard the term “Dutch Clutch” used at the Sarnia Jail. [108] CO Esser advised that the “Dutch Clutch” cannot be done without the inmate being up against a wall. He noted that it also has to be a situation where force is required and where it cannot be resolved through other means. It was his understanding that the technique is consistent with the Ministry’s Policy pertaining to the Use of Force and that “hand on collarbone” is an approved technique. CO Esser acknowledged in cross-examination that he has never been trained on any type of neck restraint. He disagreed with the Employer’s assertion that there is no approved technique which allows a CO to place anything on an inmate’s neck. CO Esser agreed, in cross-examination, that he did not mention having hold of the inmate’s collarbone during his interview with Inspector McNair. [109] CO Esser testified that after about five (5) seconds, CO Vella took hold of the inmate’s left arm and he then removed his hand from the collarbone area and took hold - 44 - of the inmate’s right arm. At that point, they both were holding the inmate against the wall. CO Esser and CO Vella, in short order, took her off the wall without any significant struggle. CO Esser recalled that while the inmate was swearing, she was not loud or yelling. He noted that she did continue to voice her aversion about returning to Area 5. [110] CO Esser stated that he and CO Vella had their hands on the inmate as they proceeded down the hall to Area 5. He advised that he was on the inmate’s right side and that he had his right hand on her right wrist. His left hand was on the inmate’s elbow. CO Esser believed that CO Vella was using a similar “arm bar” technique on the inmate’s left side. It was his evidence that, in the circumstances, the inmate was being “reluctantly compliant”, albeit “she was not happy with what was going on”. CO Esser advised that when they reached Area 5, he and CO Vella walked the inmate into the cell and then let go of her as they were about one foot (1') inside of the cell. CO Esser maintained that, in retrospect, he would not do anything different in the hallway. [111] CO Esser stated that once they left the cell, CO Vella grabbed the cell door and tried to swing it shut. He was then positioned to the right of the door. It was his evidence that CO Vella was unable to shut the door, as it would not close properly. CO Esser estimated that, initially, the door remained about four inches (4") ajar. He stated that as CO Vella was attempting to secure the cell door, inmate A went “nuts, absolutely berserk”. He recalled that as the door was moving towards the shut position, the inmate lunged forward and hit the bars with the palm of her hands in an effort to keep it open. CO Esser advised that CO Vella then had the key in the lock and was using her right hand to try and lock the door. She was using her left hand to push back against the - 45 - bars of the door. CO Esser believed that his colleague was about one foot (1') to two feet (2') away from the door at this point. [112] CO Esser testified that after the inmate first banged the door, she looked down and saw a cup containing a liquid resting on the bars of the cell to her left. He stated that she then swung her left hand and “wacked” the cup towards him and CO Vella, causing the liquid to splash on both of them. It was CO Esser’s evidence that the inmate continued to step back, then lunge ahead and pound the cell door so that it could not be shut. He noted that at this time, CO Vella had moved closer to the door and had her left shoulder leaning against it in an effort to close it. Her right hand remained on the key. CO Esser recalled that the door continued to be banged back and forth and that it kept jamming and would not properly shut. He indicated that the inmate was yelling, screaming and swearing at them while all of this was occurring. [113] CO Esser noted that, at this point in the incident, CO Vella could not let go of the door without it being pushed back in her face by the inmate. At the same time, she was also unable to get it shut. CO Esser described the situation as “sort of at a stalemate”. It was his evidence that he tried to assist CO Vella by putting his hands higher up on the cell door. After the door “slammed” three (3) or four (4) times, he brought his hand off the door out of concern for the possible loss of a finger. CO Esser also expressed concern that CO Vella could have got a hand in the face during one (1) of the inmate’s repeated lunges at the door. It was at about this time that CO Esser realized that they were not going to be able to shut and lock the cell door. [114] CO Esser was asked about his assessment of the situation. His response was that when the inmate hit the door as she did, he and CO Vella were involved in “a - 46 - dangerous situation”. He observed that the cell door was heavy and weighed about two hundred pounds (200 lbs.), and that the inmate was essentially using it as a weapon. It was CO Esser’s opinion that the situation had progressed to a point between assaultive and grievous bodily harm on the Use of Force Management Model. [115] When CO Esser determined that they were not going to be able to secure the cell door, he told CO Vella to open it. She complied with his request and opened it fully. CO Esser was asked why he chose to enter the cell. I recorded his answer as: “We had made sufficient effort to get the cell door closed and had been unsuccessful. I didn’t think it was safe and we had to get the door shut”. He then repeated that the purpose of entering the cell was to get the cell door closed. In cross-examination, CO Esser said that he thought the encounter at the cell door took about “a minute tops”. He acknowledged that no tactical communication was made with the inmate when they were all pushing on the door, and that the blue panic button in the vestibule of Area 5 was not activated by anyone. CO Esser agreed that CO Turner, CO Charrette and, possibly, OM Cameron were in the vestibule, or very close thereto, as the events described above transpired. [116] CO Esser testified that after CO Vella opened the cell door, he took one (1) step in and stopped in order to assess what the inmate was going to do. He stated that the inmate herself then took a half step back and stopped “just out of arm’s reach”. At this point, he indicated that the inmate was standing beside the bunk on the left side of the cell. CO Esser testified that he took another step towards the inmate to gauge her reaction. He advised that the inmate, again, took another step back and then stopped. It was his evidence that this step forward-step back process continued until the inmate - 47 - was up against the wall at the back of the cell. CO Esser agreed that the inmate did not come after him or become violent during her reluctant retreat to the back of the cell. He believed that she stepped back out of arm’s reach on each occasion, as she did not want force to be used against her. He also formed the impression that she wanted the cell door to remain open. In cross-examination, CO Esser stated that he feared an assault from the inmate while they were moving to the back of the cell. He also agreed that he did not direct the inmate to proceed to the back of the cell, as they were incrementally moving in that direction. CO Esser explained that he was then more concerned about the inmate’s reaction to him entering the cell. [117] When the inmate reached the back of the cell, CO Esser told her to sit down. It was his evidence that the inmate complied and sat down on the bunk. CO Esser testified that, while sitting on the bunk, the inmate’s feet were on the floor and her left side was very close to the back wall. He insisted that, at no point, was she lying on the bunk. He claimed it would have been impossible to do that as she was close to the back wall. [118] CO Esser advised that he did not want to make a move to exit the cell while he and the inmate were moving towards the back thereof, as he was concerned she could have got back to the cell door and started pounding it again before the door could be secured. He provided a similar rationale as to why he did not leave the cell when the inmate was near the back wall. In this regard, CO Esser stated: “The cell isn’t that large that she couldn’t get to the door again before we could get it shut”. CO Esser was asked in-chief why he did not back out of the cell. I recorded his answer as follows: “Ministry Regulations provide that when an inmate escalates, the Correctional Officer - 48 - must escalate, you aren’t supposed to go back”. He reiterated that there was no guarantee that the inmate would not follow him to the door. [119] CO Esser advised that it was his initial intention to leave the cell when the inmate sat down. He testified that once she sat down, he started to say “stay there”. He was not sure if he completed the statement before the inmate kicked him. CO Esser described the kick as “up and sideways” with the bottom of the inmate’s right foot. He added that it was a very quick and hard kick and that it made contact right across his groin area. At the time of the kick, he was standing near the top of the bunk. CO Esser stated he was glad the kick did not hit him in the knee, as claimed by the inmate, as it could have led to serious damage given the degree of force used. In cross- examination, CO Esser said that he thought the inmate was angry when sitting on the bunk because she knew she could not get to the cell door from there before the COs would close it. That result would mean she would have to stay in Area 5. In CO Esser’s opinion, the inmate at this point in time was at the grievous bodily harm stage in the Use of Force Management Model. [120] CO Esser testified that after the inmate brought her foot back, after the first kick, he “hit her”. He stated that he did so with the backside of his hand, and that his hand was open and was not in a closed fist. It was his evidence that the knuckles on the back of his hand made contact with the right side of the inmate’s head, just below the ear. CO Esser later agreed that he used a semi or partially closed fist to deliver this first strike. He was asked whether it was intentional to not close his hand. His response was: “No intent one way or the other, it happened so quick it was just a reaction”. - 49 - [121] CO Esser asserted that the Ministry does not teach COs on what to do when they are being assaulted. It was his evidence that he asked this question at every training session he attended. He maintained that the response to his inquiries was as follows: “They say you can do whatever you have to to stop the assault, remembering you will have to account for any excessive use of force”. In CO Esser’s opinion, the first strike was consistent with his training. He added that it was the least intrusive force available to him. He agreed that there was no tactical communication between he and the inmate in the period between the first kick and the first strike. CO Esser suggested that if he had attempted that, he could have been kicked three (3) more times. He further indicated that, in his view, the strike was quicker than any attempt to get ahold of the inmate’s legs would have been. [122] CO Esser described the first strike as a “distraction”. He agreed that the only distraction strike COs are trained on involves the use of the back of the hand. He further agreed that a distraction strike is not to be used for purposes of retaliation. [123] After the first strike, the inmate turned her head. It was CO Esser’s evidence that he then grabbed her right leg on both sides of the knee. He stated that his left hand was on the inmate’s thigh, and his right hand was on her lower leg. CO Esser explained that both he and the inmate were in an awkward position. She was half leaning up against the wall, and he was trying to hold her there to prevent any further kicks. CO Esser was aware that CO Vella was in the cell at this time. Given that he had his back to her, he was not in a position to know precisely what she was doing. He did believe that CO Vella grabbed the inmate’s ankles after the latter kicked him. CO Esser seemed to suggest that CO Vella was not ideally positioned to grab the inmate’s legs. - 50 - In his words, the situation was not secure as it was difficult, in the circumstances, to immobilize the inmate’s legs. [124] CO Esser next told the inmate to “stop, smarten up”. It was his recollection that the inmate froze when he said those words. He, accordingly, elected to let her go as she was not “giving any trouble”. It was his evidence that as soon as he let go of the inmate, she kicked him again in the same place and in the same manner as the first kick. CO Esser described this second kick as “a hard kick to the groin area”. He acknowledged that immediately after the latter kick, he “punched her twice” with a “closed fist on the side of the head”. CO Esser testified that the back knuckles of his fist connected with the inmate’s head at the same location as the first strike. He stated that these strikes were delivered to get the inmate to stop kicking and “to stop the assault”. CO Esser described his punches as being very quick, one right after the other. He believed that the first of the two (2) strikes was delivered at about the same time the inmate kicked CO Vella, and that the second one was delivered immediately thereafter. [125] CO Esser claimed that the second and third strikes were consistent with Ministry policy, as they were the least intrusive way to meet the objective. From his perspective, other options were not viable and would not likely have stopped the inmate assaulting he and CO Vella. As of August 31, 2011, CO Esser believed that closed fist strikes were not prohibited by the Ministry. He further understood that a physical distraction could include such a strike. CO Esser repeated that he was never trained on how to use a closed fist distraction strike. However, he maintained that they could be resorted to if the strike was reasonable, authorized and justified. He agreed that while his training did not teach closed fist strikes, COs “are allowed to do things we aren’t taught”. - 51 - [126] CO Esser described the inmate’s reaction to the last two (2) strikes as follows: “She covered her face, brought her knees up to her body, leaned back to the corner of the cell and started crying.” He did not believe the inmate covered up because of fear. CO Esser stated that the inmate did not say anything after the strikes. In his view, there was no need for any further control, as the inmate “was where we wanted her to be”. At that juncture, he and CO Vella backed out of the cell and locked the door. CO Esser observed that CO Turner and CO Charrette had also been in the cell. He did not recall any other person who might have been in there as well. He stated that he did see OM Cameron outside of the cell. [127] CO Esser stated that the sequence of events from the point of entering the cell to the exit therefrom lasted less than five (5) minutes. He maintained that the situation in the cell “went really well” and that “it never got out of hand”. He added that “all the responses done were effective and achieved the desired result of getting the door shut”, without any injuries to the inmate or staff. CO Esser asserted that, looking back on the incident, he would not do anything different in the cell area. In cross-examination, CO Esser agreed that he occupied a position of trust and that, as a CO, he was responsible for the care, custody and control of inmates. He further agreed that a CO’s job is to protect vulnerable inmates. [128] CO Esser testified that by the time the door into the hallway was shut, the inmate was at the bars yelling, screaming and swearing. It was his evidence that she was mocking him on how little force he used and that she said her daughter could hit harder than he did. He also maintained that she called him “a pussy”. - 52 - [129] CO Esser testified that he had a good working relationship with CO Vella. He stated that she was an excellent CO with the ability to effectively control the areas assigned to her. It was his evidence that on CO Vella’s transfer to the Sarnia Jail from Windsor, he received information from the latter institution that she was a “rat”. CO Esser claimed that this did not affect his view of her. [130] Inmate A received a Misconduct for her actions on August 31, 2011. The Misconduct Report was filed as exhibit #76. The conduct complained of in the document was described as follows: “Inmate…threatened to hit me and later kicked me twice in the groin area.” Inmate A testified that she pled guilty to the allegation of misconduct, as she felt no one would believe her if she contested same. She subsequently received a sanction of ten (10) days in Segregation at the EMDC. [131] Inmate A was transferred to EMDC on September 2, 2011. It is clear that she did not want to be transferred out of the Sarnia Jail. Inmate A complained of being assaulted by CO Esser when first notified of the intended transfer. She was subsequently interviewed at EMDC by Mr. Paul Kitchen, the Security Manager, on September 7, 2011. A transcript of the audio-taped interview was filed in this proceeding as exhibit #32. I note the following with respect to how the inmate then described the incident to Mr. Kitchen: i) Inmate A acknowledged that, while in the hallway, she made the following comment: “I don’t want nobody touching me, I feel like I’ll punch them right now”. During the interview, she denied telling CO Dave Esser that she was going to punch him. She explained that her comment was not directed at him or any other of the staff present. Rather, it was more general in the sense that the inmate felt she could punch somebody, if touched; ii) Inmate A told Mr. Kitchen that as soon as she made the above comment, CO Esser grabbed her by the throat and put her up against - 53 - the wall. She, initially, said that CO Esser grabbed her by the neck and lifted her right off her feet. The inmate later clarified this and told Mr. Kitchen she had not been lifted off her feet but, instead, and been lifted up to her “tippy toes”. The inmate informed Mr. Kitchen that the hold was like a choke and that it lasted long enough for her to lose her breath. She also advised him that CO Esser had rubber gloves on at the time; iii) Inmate A told Mr. Kitchen that she did push on the cell door to prevent it being closed, as she did not want to be in that cell. She thought that she had jumped onto the bunk and laid on her side when CO Esser and CO Vella entered the cell; iv) Inmate A told Mr. Kitchen that, once on the bunk, she covered up her head, as she believed CO Esser was about to hit her. She initially advised Mr. Kitchen that CO Esser said “oh you whimp” or “something like that”. The inmate later told him that CO Esser had called her a “pussy” or “something like that”. At another point during the interview, she asserted that he did call her a “pussy” when she covered up her face for protection from a fake punch; v) Inmate A denied that she kicked CO Esser in the groin area. She recalled that she kicked him twice in the area of his knee. In her words, she “never went near his groin”. The inmate told Mr. Kitchen that she was unsure if she kicked CO Vella; vi) Inmate A informed Mr. Kitchen that CO Esser hit her with a closed fist to the head at least two (2) to three (3) times. She claimed that the strikes were not made with an open hand or with the back of the hand. The inmate recalled feeling CO Esser’s knuckles when the strikes connected with her head. She also told Mr. Kitchen that she was hit once in the shoulder area; and vii) Inmate A told Mr. Kitchen that CO Perrin was in the cell at the time of the incident right behind CO Esser. [132] Mr. Kitchen testified that during the interview, he had the inmate describe her version of the incident several times. After receiving her account of the events, he came to the conclusion that the inmate was genuine, credible and reliable in terms of what she had communicated to him. Mr. Kitchen was not left with the impression that the inmate was “playing an angle or trying to make a deal”. While he agreed it was possible, Mr. Kitchen did not think that the inmate was attempting to build a case for self defence if “street charged”. - 54 - [133] Mr. Kitchen maintained that prior to the interview, he did not have his mind made up as to what had actually occurred on August 31, 2011. He acknowledged, however, that he did have “a gut feeling” that CO Esser’s strikes were “more of a punch in the head than a true distraction”, and that they were delivered in retaliation because the inmate had kicked him. It was Mr. Kitchen’s evidence that the inmate’s version of the use of force in the cell was consistent with his gut feeling. He added that the information she provided filled in the gaps of what other staff, who were present in Area 5, were unwilling to share with management about the incident. In Mr. Kitchen’s words, the more the inmate talked, “the more the whole picture came together”. [134] Mr. Kitchen telephoned Superintendent Fitzgerald immediately after the interview and asked the Superintendent to stay at the Sarnia Jail until he returned. He testified that he made his request because of the serious nature of what he had uncovered during the interview. More specifically, it had not been previously reported that CO Esser grabbed the inmate’s neck or throat area while in the hallway. Mr. Kitchen stated that a choke would never be an appropriate response to a verbal threat. He added that holds of the neck or throat are “off limits” and prohibited by the training given to COs. [135] Inspector McNair interviewed inmate A at the EMDC on September 13, 2011. After so doing, he felt she had been genuine and had not concocted a story about being choked and punched in the head. Inspector McNair testified that he later matched up his interview with the one (1) previously conducted by Mr. Kitchen. It was his judgment that the two (2) interviews, in terms of content, were “consistent without being rehearsed”. He did not think that any inconsistencies in the inmate’s account of events - 55 - were pivotal when considered in the context of the totality of the information provided. While Inspector McNair acknowledged there were minor differences between what the inmate told him and Mr. Kitchen, he concluded that they were marginal and not critical to his ultimate determinations. Ultimately, he found the inmate’s description of what occurred in the hallway and the cell to be reliable, credible and genuine. Inspector McNair agreed that the inmate may have downplayed certain of her actions in both of the aforementioned locations. He further agreed that, as of the date of his interview, the inmate was under the impression she might be charged criminally for her conduct on August 31, 2011. [136] CO Perrin was interviewed twice by Inspector McNair; the first interview was on October 14, 2011, the second on December 7, 2011. It is apparent that there are several inconsistencies between the evidence she gave in this proceeding and the answers she previously provided to Inspector McNair. The inconsistencies include the following: i) In her evidence, CO Perrin testified that she did not hear the inmate yelling and swearing in the hallway when she first entered that area to see what was happening. During her first interview with the Inspector, she said that the inmate was, in fact, yelling and swearing. CO Perrin agreed that she must have provided that information if it was contained in the transcript of her interview. She did not, however, recall providing that information during the interview. CO Perrin conceded the possibility that the inmate was then yelling and swearing; ii) In her evidence, CO Perrin suggested that the inmate did not kick out hard enough to hurt anyone. In her first interview, however, she told Inspector McNair that the kick at CO Esser was offensive in nature and was delivered with the intent to injure. CO Perrin further agreed that the inmate wanted to hurt someone. She acknowledged the same point in her second interview; iii) In her evidence, CO Perrin stated that the strikes delivered by CO Esser landed on the right side of the inmate’s head. During the first interview, - 56 - however, she informed Inspector McNair that she could not see if the strikes connected with the shoulder or head; and iv) In her evidence, CO Perrin stated that all of the strikes were delivered with a closed fist. During the first interview, she told Inspector McNair that she did not know if CO Esser’s fist was open or closed at the point of impact. CO Perrin emphasized that she had two (2) interviews with Inspector McNair, and that she clearly referenced a “punch” during their second meeting. In her words, she knew it was a punch all along. [137] In cross-examination, CO Perrin acknowledged that she was not entirely honest in her first interview with Inspector McNair. In this regard, she testified that she did not want CO Esser or anyone else to be in trouble. CO Perrin said that she “tried to do what the workplace expected”. It was her evidence that she was conflicted because she did not want to lie but, at the same time, wanted to do what was expected of her by her colleagues at work. CO Perrin agreed that she did attempt to conceal things from the Inspector during her first interview. CO Perrin commented as follows: “I did hide things in the first interview to protect Dave, that was wrong, I shouldn’t have done it”. CO Perrin denied the suggestion of Union counsel that she, in reality, tried to “nail” CO Esser in the second interview so as to ensure he would not return to work. [138] CO Turner was interviewed by Inspector McNair on October 21 and December 13, 2011. In cross-examation, CO Turner agreed that he withheld information during the first interview. He further agreed that he then “lied through omission”. By way of example, CO Turner did not reference the fact that CO Esser’s hand was on the inmate’s throat during their encounter in the hallway. CO Turner also failed to mention that CO Charrette pulled on his shirt while he was in the cell. This witness testified that he did tell the truth in his second interview. I note that in the latter interview, he again failed to mention that CO Charrette had tugged on his shirt. Notwithstanding the above, CO Turner stated that he did not act with intent to obstruct the CISU investigation during - 57 - either of the interviews. CO Turner agreed that he had to be compelled by Inspector McNair to respond to his questions. It was his evidence that he did so on the advice of the Union. [139] CO Charrette was interviewed by Inspector McNair on October 26 and December 13, 2011. In both interviews, she failed to mention that she pulled on CO Turner’s shirt while in the cell. CO Charrette explained that she was “kind of intimidated” by Inspector McNair and was “trying not to cry”. [140] CO Dave Esser was interviewed by Inspector McNair on December 1, 2011. His overall impression of the interview was that it was “adversarial”. He described Inspector McNair as being “extremely aggressive” during the interview. CO Esser believed that the Inspector spent four (4) hours trying to get him to admit he had done something wrong. He testified that it was a “waste of three and a half hours”, as the interview could have been completed in half an hour. CO Esser advised that during the course of the interview, he kept quoting Ministry policy in support of the actions taken on August 31, 2011. [141] CO Esser claimed that as the Local Union President, he always encouraged people to be as truthful as possible in a CISU investigation. CO Esser admitted in cross-examination that he lied to Inspector McNair about who had provided him with information concerning the use of force. During the interview, he said that he received documents from Joel Campbell. At the hearing, CO Esser ultimately admitted that the material came from CO Bissonnette. It was his evidence that he lied during the interview as he was “rattled” because Inspector McNair was “extremely confrontational”. - 58 - I also note that at the interview, he stated that he grabbed ahold of the inmate’s neck in the hallway. CO Esser did not then make any reference to the inmate’s collarbone. [142] R.R.O. 1990, Regulation 778 establishes the parameters for the use of force by a CO against an inmate. Section 7 thereof reads: 7.(1) No employee shall use force against an inmate unless force is required in order to, (a) enforce discipline and maintain order within the institution; (b) defend the employee or another employee or inmate from assault; (c) control a rebellious or disturbed inmate; or (d) conduct a search. (2) When an employee uses force against an inmate, the amount of force used shall be reasonable and not excessive having regard to the nature of the threat posed by the inmate and all other circumstances of the case. [143] The substance of the above legislation is captured by the Employer’s Adult Institutions Policy and Procedures Manual under the subject heading ‘Use of Force’. The material provisions are as follows: “POLICY No employee shall use force against an inmate unless force is required in order to:  enforce discipline and maintain order within the institution;  defend the employee or another employee or inmate from assault;  prevent an escape;  take fingerprints;  control a rebellious or disturbed inmate; or  conduct a search When force is used against an inmate, the amount of force used shall be reasonable and not excessive having regard to the nature of the threat posed by the inmate and all other circumstances of the case. - 59 - No employee shall use any method of force or restraint techniques that is in violation of Correctional Services policy. Where an employee uses force against an inmate, the employee shall file a written report with the Superintendent indicating the nature of the threat posed by the inmate and all other circumstances of the case. Force shall only be used as a defensive or control measure when absolutely necessary. It is not intended, and shall never be used, as a means of punishment. PROCEDURES Physical force will only be used when there is an immediate threat to personal safety or the security of the institution or community, and there is no reasonable alternative available to ensure a safe environment. When force must be used, only the minimum amount necessary will be used; that is to say, the amount of force will be proportionate to the threat posed or the harm to be avoided. Correctional staff are protected under legislation from criminal and civil liability in the use of authorized, reasonable and necessary force in the performance of their duties. However, there is no provision in either legislation or in jurisprudence to excuse an employee from criminal or civil liability for the excessive or negligent use of force. ……………………………………………………………………………………” [144] The above Policy is substantially incorporated into the Standing Orders of the Sarnia Jail. The current Standing Orders were filed in this proceeding as exhibit #120. I note they are dated June 15, 2012, a date subsequent to CO Dave Esser’s termination, and that they were not relied on by the Employer in this instance. The Employer’s Statement of Ethical Principles was also filed as exhibit #121. It provides that employees are required to: “  Perform our duties on behalf of the citizens and Government of Ontario with honesty and integrity. …………………………………………………………………………………  Fulfil our responsibility to colleagues by fostering and maintaining working relationships based on mutual respect, dignity and cooperation. - 60 -  Contribute to sustaining an environment which is fair, equitable and free from all forms of discrimination and harassment. …………………………………………………………………………………  Respect the civil, legal and human rights of those under our care and supervision. ………………………………………………………………………………….  Respect the importance of all professions within the criminal justice system and work to improve the cooperation with each component. …………………………………………………………………………………” [145] The following provisions of the Criminal Code, RSC 1985, c C-46 also impact a CO’s use of force: 2. “peace officer” includes (b) A member of the Correctional Service of Canada who is designated as a peace officer pursuant to Part I of the Corrections and Conditional Release Act, and a warden, deputy warden, instructor, keeper, jailer, guard and any other officer or permanent employee of a person other than a penitentiary as defined in Part I of the Corrections and Conditional Release Act, 25 (1) Everyone who is required or authorized by law to do anything in the administration or enforcement of the law a) as a private person, b) as a peace officer or public officer, c) in aid of a peace officer or public officer, or d) by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose. 26. Everyone who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and the quality of the act that constitutes the excess. 34(1) Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. - 61 - 37(1) Everyone is justified in using force to defend himself or anyone under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it. (2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent. [146] It is apparent that the above legislation, policy and procedures, as well as the Use of Force Management Model, was covered in the materials provided to COs as part of their training. The following training materials were filed during the course of this hearing: Defensive Tactics, Theoretical Concepts-Lesson Plan (exhibit #91); and Defensive Tactics, Restraints-Lesson Plan (exhibit #92). These materials were part of the training given to CO Esser in June and December, 2010. [147] CO Dave Esser testified that he has previously been involved in a substantial number of use of force situations, and that they ranged across the spectrum in terms of their seriousness. He advised that, including the instant incident, he has been assaulted by an inmate on four (4) occasions. It was his evidence that he was never disciplined, over his years at the Sarnia Jail, for an alleged excessive use of force. CO Esser stated that he was familiar with the Use of Force Management Model (exhibit #90) and that he applied it daily to his work as a CO. He also agreed that he was fully trained in the area of Defensive Tactics. [148] CO Esser maintained that the Employer did not provide training on how to respond when a CO was being, or had just been, assaulted by an inmate. He expressed the opinion that a CO, if being assaulted, is entitled to defend themself through the use of force. In his words, a CO in that scenario can “meet force with - 62 - force”. CO Esser claimed that this would include a situation, as here, where the inmate threatened an assault. It was his understanding, as of August 31, 2011, that this form of response was consistent with sections 34 and 37 of the Criminal Code. CO Esser acknowledged that any force used by the CO must be reasonable, authorized, justified and not excessive. He further agreed that such response must be proportionate to the assault received. He observed that, in certain situations, hard physical handling techniques, such as punches, kicks and elbow strikes, may be used against an inmate. CO Esser referenced the Defensive Tactics, Theoretical Concepts-COTA Program (exhibit #151) in support of this assertion. I note that he did not actually take this Program. It was the thrust of CO Esser’s evidence that, in assault situations, his first concern was to stop the assault, protect himself and then take control of the inmate. [149] CO Esser suggested that use of force incidents within the institution never happen in the way they are depicted and dealt with during training sessions. He testified that during training, COs are told to use the least amount of force possible. He stated, however, that the actual training provided involved taking the inmate to the floor. Indeed, CO Esser stated that it was the only response taught. He acknowledged that he was trained on how to deal with use of force situations involving a female inmate and that, in such a case, he would assess gender, size, weight and height in the decision making process. [150] CO Esser testified that he accepted the four (4) basic rules, set out in the Defensive Tactics, Theoretical Concepts-Lesson Plan, for taking control of an inmate, these being: “1. Accept your role as being defensive 2. Know what you want the offender to do before applying a technique - 63 - 3. Apply a technique that will tell the offender what to do 4. Apply only that degree of discomfort that will achieve and maintain control.” (exhibit #91) He further agreed with the statement contained therein that “in all cases, the application of force must be a last resort”. [151] Mr. Ireland advised that COs are given three (3) hours of training on the Use of Force Management Model during their Defensive Tactics and Restraints Training. He noted that mandatory training and practice sessions are provided to COs every twenty- four (24) months. CO Dave Esser’s training record at the Ontario Correctional Services College was filed as exhibit #73. His last training in Defensive Tactics occurred in June and November of 2010. [152] Mr. Ireland spent considerable time explaining how COs are expected to apply the Use of Force Management Model. His evidence may be summarized as follows: i) A CO must first assess any potential use of force situation. This requires that they consider impact factors, such as age, size and gender. Other considerations in this initial assessment would include the location of the inmate; if a threat was made, does the inmate have the ability to carry it out; does the inmate have a history of actually acting on threats; and the COs knowledge of the inmate and, particularly, whether they may have assaulted staff in the past; ii) In this process, the CO must profile the behavior of the inmate and determine whether their actions are captured by any of the following headings: co-operative, verbal resistance, physically uncooperative, assaultive, or grievous bodily harm. These headings range from the least serious to most serious types of inmate behaviour; iii) The available force options are dependent on the nature of the inmate’s behaviour. Under the Model, a CO must assess which of the following options best matches the circumstances presented: staff presence, verbal intervention, tactical communication, negotiation-diffusion skills, soft physical handling, hard physical handling, and restraints. Mr. Ireland advised that the use of weapons is restricted to the Tactical Team and Community Escort Officers; - 64 - iv) Mr. Ireland emphasized that use of force situations are fluid and that, as a consequence, there is a need to constantly assess what is occurring. He stated that in selecting a response option, the CO must start with the least intrusive and progress to the most intrusive. In his view, the role of a CO is always defensive, with the ultimate goal being the establishment and maintenance of control. Mr. Ireland testified that a CO must always try to negotiate and diffuse the situation for everyone’s safety. He recognized, however, that under the Model there may be occasions where certain steps in the force continuum are by-passed. For example, the CO may be required to go right to a control technique given the circumstances. In such a case, the CO is expected to gain control in the least intrusive way being cognizant of the risk of injury to both inmate and staff; and v) COs have the option to disengage from the situation in order to regroup, reassess or call upon others for assistance. [153] Mr. Ireland also reviewed the Lesson Plan for the Defensive Tactics Training taken by CO Esser in June, 2010. He advised that the slide presentation provided to the COs, over a period of one and a half hours, included the following points: application of force must be as a last resort; a description of force and the pieces of legislation governing a CO’s authority and liability pertaining to the use of force; force must be authorized, justified, reasonable and not excessive; what should be included in an Occurrence Report relating to a use of force incident; the categories of control; the Use of Force Management Model; proxemics; and control versus injury. Mr. Ireland advised that there is a practical component to this training which is undertaken in the gym. He also noted that self defence is addressed in the training, and stated that “our role is defensive”; “our goal is to establish and maintain control” and to obtain “a peaceful resolution”. [154] Mr. Ireland advised that a distractionary strike is used “to separate the mind and body” of the inmate in order to create lag time for the CO to have the opportunity to - 65 - disengage, escape or to engage some other option to take control. He testified that the technique is taught usually in the context of an inmate assault and the corresponding need for the CO to escape to safety. It was his evidence that the training provided to COs does permit an open-handed strike in the appropriate circumstances. Mr. Ireland was insistent that COs are not trained or permitted to deliver a distractionary strike with a closed fist. He further stated that the technique is a defensive measure. [155] In his cross-examination, Mr. Ireland was directed to the Employer’s policy with respect to the prohibition against the use of the carotid restraint technique (exhibit #93). He agreed that the policy was specifically created to address that technique, and that the word “immobilize” contained therein means “rendering the person unconscious”. Mr. Ireland acknowledged that the word could have been “better explained” in the policy. [156] In re-examination, I recorded the following questions put to Mr. Ireland and his answers: Q - If the hold is less than three pounds (3 lbs.) is that OK, is the amount of pressure relevant? A - No Q - Is there any approved technique allowing a CO to put anything on an inmate’s throat or neck? A - No, other than a cloth screen or spit hood. Q - Is there any policy prohibiting hands on the throat or neck if it is not a carotid restraint? A - Policy wise no, it is spoken to in training. Q - In this incident (with CO Esser’s hand on the inmate’s throat or neck area) is the prohibition applicable? - 66 - A - Yes, because the risk is there. It is covered in training. Q - Are COs still prohibited from putting their hand on the throat even if the inmate is not rendered unconscious? A - Yes, anything around the carotid arteries is prohibited. [157] Prior to giving evidence, Mr. Ireland reviewed the CISU Report (exhibit #62) and the transcripts of the statements given to Mr. McNair by the COs interviewed (exhibit #65). In his examination in chief, he was asked to provide his assessment and opinion on what occurred in both the hallway and in the cell area on the basis of both the Employer’s and the Union’s version of the events. What follows is a short form summary of his evidence. [158] HALLWAY – EMPLOYER’S VERSION - The inmate’s statement that she thought she could hit someone, while not directed to anyone specific, still amounted to a threat. That threat required a heightened level of awareness on the part of the COs in close proximity to her. - A CO in that situation should create distance between themself and the inmate and take up a proper position. Mr. Ireland testified that the CO should “blade off” to limit target areas in order to protect themselves. He further stated that their hands should be kept in front of the body. - Mr. Ireland indicated that the CO should consider if the inmate had the means to carry out the threat and the number of staff in the area. On his count, there were five (5) staff in the immediate area and another CO at each end of the hall, for a total of seven (7) staff. In his opinion, in view of the number of staff in the hallway, the risk was not as great. He recognized, however, that there still remained some potential for an assault by the inmate on one (1) or more COs. Mr. Ireland testified that given the number of staff present, there was no need to move in immediately to take control and eliminate the threat. Rather, a CO, in CO Esser’s position, should de-escalate and disengage, as this would provide more time to think about and assess the situation. - The inmate’s statement that nobody should touch her indicated that her mood had escalated and that she was agitated and in a state of - 67 - crisis. From Mr. Ireland’s perspective, taking hold of the inmate at that point in time created a greater risk of an assault by the inmate. He noted that COs are trained to de-escalate inmates in a state of crisis through the use of appropriate verbal and body language. - Under the Use of Force Management Model, the fact the inmate was in a state of drug withdrawal would constitute a special circumstance for the CO to consider. Mr. Ireland maintained that such an inmate would be more unpredictable and that, accordingly, there would be a real need to take more precautions. - A grip of an inmate by the neck or throat area would be contrary to both applicable policy and the training provided to COs. Mr. Ireland reiterated that no neck restraint techniques are sanctioned given the risk of serious injury to the inmate. It was his evidence that COs are not trained to use the type of “holding grip” used by CO Esser in the hallway. He observed that no take down or control techniques are taught from that position. In Mr. Ireland’s opinion, in view of the number of staff present, some less intrusive technique should have been used to overpower the inmate and establish control. [159] HALLWAY – UNION’S VERSION - The inmate’s statement to CO Esser that she was going to hit him was a direct threat. Mr. Ireland noted, however, that in training the Employer tries to reinforce that threats are “a regular part of our business”. - Mr. Ireland stated that, regardless of what was said by the inmate, a CO has no right to be the aggressor. Were a CO to adopt that type of response, “it would become more of an assault, rather than an effort to defend themself”. - On Mr. Ireland’s analysis, CO Esser should have disengaged or given direct orders to the inmate. He also advised that CO Esser should have made a greater effort to diffuse the situation. Mr. Ireland reiterated that in working through the Use of Force Management Model, a CO must first consider and apply the least intrusive response. - Mr. Ireland suggested that a CO should spend more time talking to a female inmate in comparison to their male counterpart. He stated that a CO should explain things in more detail when dealing with a female inmate. He also testified that a CO needs to consider the size and strength of such an inmate for purposes of assessing the amount of pressure to apply if some force is required. - Mr. Ireland stressed that the grip employed by CO Esser could have caused the stoppage of blood to the inmate’s brain. He advised that it - 68 - only takes three pounds (3 lbs.) of pressure to have that result. Mr. Ireland expressed the opinion that CO Esser would have had to use more than that level of pressure to hold the inmate in position as, otherwise, she would have been able to pull out of his grip. [160] CROSS EXAMINATION – HALLWAY - Mr. Ireland repeated that the inmate escalated into a state of crisis as she moved from the Health Care Unit and into the hallway. He observed that the inmate progressed from verbal resistance to verbal threatening. He also described the kicking of the garbage can as an instance of active resistance. Mr. Ireland agreed that, in view of the aforementioned escalation, there was potential for the inmate to become physically violent. - Mr. Ireland stated that the fact the inmate was “a heavy” on the range, would not affect his assessment. He suggested that such status might be material if the situation occurred on a range or if there were other inmates in the area of the incident. Mr. Ireland testified that, in those scenarios, the inmate might act aggressively in order to save face. He also agreed that it would be helpful for the CO to know whether the inmate had previously assaulted either a CO or a Police Officer. - Mr. Ireland did not think much turned on whether the inmate said she was going to punch CO Esser specifically or whether the comment was more generally directed at “somebody”. He considered that it amounted to “word-smithing” by the inmate and as an attempt to intimidate staff. He agreed that the threat, in either form, should heighten the level of the CO’s awareness. - Mr. Ireland acknowledged that the number of COs present in the hallway on August 31, 2011, and the verbal intervention that occurred there, was insufficient to get total compliance from the inmate. - Mr. Ireland testified that if CO Esser believed the inmate was coming at him to hit him, he should have pushed her in the shoulder area for purposes of redirecting her. - Mr. Ireland agreed that there could be a hold on the neck that would not block the flow of blood to the brain. He advised that if the carotid restraint technique was properly applied, the person on the receiving end would black out within three (3) to ten (10) seconds. Mr. Ireland further agreed that he would not describe what occurred here as a carotid restraint, as the inmate did not pass out and was still able to yell. He suggested that CO Esser, in the circumstances, was likely grabbing onto muscle and not the carotid artery. - 69 - [161] Mr. Ireland noted that the inmate walked down the hallway on her own without cuffs. He testified that this indicated the inmate was becoming compliant, that she was following directions and that the situation was starting to de-escalate. [162] CELL – EMPLOYER’S VERSION - Mr. Ireland stated that if the inmate was not being compliant at the doorway to the cell, she could have been physically moved into the cell. He further stated that if the inmate was pushing on the door from inside the cell, a CO or COs could use the door to push her back into the cell and/or use their feet against the base of the door to prevent it being opened. In his opinion, the ultimate objective was to get the door closed without any fingers being caught in the door. Mr. Ireland suggested that the spillage of coffee and milk could easily occur given where it was resting. - Mr. Ireland stated that he would want to know the reason for the number of staff who entered the cell. He observed that under the concept of ‘proxemics’, a CO should not put themself at a place where they could be assaulted. - Mr. Ireland noted the inmate’s statement that she jumped onto the bunk. He emphasized that, while she may not have been fully compliant at the time, she was, nevertheless, in the cell. Mr. Ireland suggested that the inmate was not actively pursuing an assault. To the contrary, she was trying to get away from the COs. In his judgment, CO Esser and the other COs should have then taken the opportunity to disengage from the cell. - Mr. Ireland stated that fake punching is not an approved technique. In his view, the intent of faking a punch towards an inmate lying on a bunk would be to secure compliance through intimidation. In his words, “we don’t use any of our weapons to intimidate”. - Mr. Ireland suggested that the tapping on CO Esser’s knee by the inmate represented a “lashing out” by her in order to get back at him. He again asserted that the preferred option was for the CO’s to then disengage from the cell. He also testified that staff could have moved in to take control, if necessary. Mr. Ireland noted that if CO Vella was on top of the inmate, “the best case scenario was for someone to physically take hold of the inmate’s legs”. He added that clear direction could also have been given to the inmate and that she could have been placed in restraints until she was no longer in a state of crisis. - 70 - - Mr. Ireland reiterated that any hits must be open-handed. He testified that “we do nothing with closed fists”. It was his evidence that the Employer does not teach COs to punch or strike with a closed fist. He acknowledged that COs are taught a form of distraction strike using the back of the hand or palm. Mr. Ireland advised that the technique is used when a CO is being assaulted and is designed to create the necessary lag time for the CO to regain control of the inmate or to escape the situation. - Mr. Ireland indicated that the use of the word “pussy” towards an inmate is “more of a professional conduct issue”. He stressed that the Ministry expects employees to be “professional at all times”. [163] CELL – UNION’S VERSION - Mr. Ireland stated that if the inmate threw the cup of coffee at the COs, rather than it being knocked off the ledge, such action would still not authorize a use of force. - Mr. Ireland questioned the need to walk the inmate to the back of the cell, given that the objective was to get her into the cell and then secure the door. He further questioned why there were so many COs in the cell, once the inmate was on the bunk. In his view, pursuant to the concept of proxemics, the COs should have remained a safe distance away. Mr. Ireland testified that CO Esser should have disengaged by moving backwards with his eyes always on the threat. In his opinion, CO Esser had “no reason for being in the cell in the first place”. - Mr. Ireland did not see a significant difference between a kick and a tap. In either case, it was his view that CO Esser should have disengaged to get out of the cell. He stated that there was nothing to be gained by staying in the cell. - Mr. Ireland reiterated that hitting with the back of the hand is taught to COs as a distractionary strike. He stressed, however, that closed fist strikes are inconsistent with the training provided to them. Mr. Ireland acknowledged that sections 34 and 37 of the Criminal Code provide authority to a CO to use force to prevent an assault or the repetition of it. He noted, though, that there is a “grey area” between defending yourself and committing an assault. It was his evidence that the role of a CO is defensive and that the goal in this type of situation is to establish control. Mr. Ireland advised that COs are taught the approved techniques so they are not required to meet force with force. He testified that COs are expected to “heed to a higher standard”. - 71 - - Mr. Ireland stated that a CO could punch an inmate in order to defend themself. He gave the example of a single CO being assaulted by five (5) inmates. Mr. Ireland emphasized, however, that in the instant case CO Esser had other available options such as disengaging, or putting the inmate in restraints, after he was kicked. - Mr. Ireland advised that there can be an excessive use of force without causing an injury to, or leaving any marks on, the inmate. [164] CROSS-EXAMINATION – CELL - Mr. Ireland advised that when the inmate was pushing on the cell door, and knocked a cup of coffee off the ledge, she was in an agitated state and was engaging in “active resistance”. He suggested that, at that juncture, the COs present should have continued in their efforts to get the door shut and/or given direct orders to the inmate to move backwards in the cell, so they could secure the door. Mr. Ireland agreed that there was a point when it was appropriate to open the cell door in an attempt to move the inmate back, so that the door could be closed. He was unable to say if that point was reached, as he did not know how much time had actually elapsed. In his mind, one (1) to two (2) minutes was likely too soon for the COs to enter the cell. Mr. Ireland testified that it might be time for them to enter if they had been standing on the outside of the cell for ten (10) to fifteen (15) minutes. - Mr. Ireland stated that, while the inmate was in a state of escalation when pushing back on the cell door, he did not see her as threatening the COs. He acknowledged that her behaviour could have become more unpredictable and assaultive. - Mr. Ireland expressed the opinion that the inmate was being assaultive when she lashed out and tried to kick CO Esser and CO Vella from her position on the bunk. When asked what options the COs then had, he suggested the following: physical handling; restrain the inmate with handcuffs; a distraction strike. With respect to the latter, Mr. Ireland stated that such a strike should not be used as retaliation, or in response to an assault. Rather, it is intended to create a time lag, distract the inmate, and give a CO the opportunity to escape from the area. - Mr. Ireland acknowledged that, in this instance, the inmate could possibly have charged at the COs as they backed out of the cell. He stated that such a possibility should be considered and that would affect their positioning as they backed out. I note that in re-examination, he testified that the inmate could have been given a direct order to remain on the bunk and that the COs could then have monitored her response. - 72 - It was Mr. Ireland’s evidence that if the inmate did not move, the COs could then have exited from the cell. - Mr. Ireland agreed that a CO must make a split second decision when they decide on a response to a non-compliant inmate. He further agreed that, on occasion, a CO might have to act immediately to avoid injury to themself or other staff. Mr. Ireland commented, in re- examination, that COs are trained on how to make split second decisions. - Lastly, Mr. Ireland accepted the suggestion that there can be a “fine line” between a use of force and an excessive use of force. [165] Section 7(3) of Regulation 778 provides as follows with respect to a CO’s obligation to file an Occurrence Report following a use of force incident: “Where an employee uses force against an inmate, the employee shall file a written report with the Superintendent indicating the nature of the threat posed by the inmate and all other circumstances of the case.” [166] The Adult Institutions Policy and Procedures also speaks to the subject of Occurrence and Offender Incident Reports (Subject ADI010702). The material provisions thereof read: “POLICY Correctional Services recognizes the importance of ‘Occurrence Reports’ and ‘Offender Incident Reports’ for recording and disseminating information necessary for the preservation of institutional safety and security, the provision of timely interventions for inmates experiencing behaviour problems or personal difficulties, and for the enhancement of institutional operations. If an ‘Occurrence Report’ or ‘Offender Incident Report’ is required, it shall be completed prior to the employee leaving duty. The only exception shall be with the approval of the Superintendent or designate. ……………………………………………………………………………………… PROCEDURES Employees are required to prepare accurate and complete ‘Occurrence Reports’ and ‘Offender Incident Reports’ to achieve the important objectives in the policy statement …………………………………………………………………………………..…. - 73 - The Superintendent and supervisory staff will ensure that all reports are completed in accordance with the ‘Report Writing Manual’ prepared by the Ontario Correctional Services College. ………………………………………………………………………………….....” [167] The Adult Institutions Policy and Procedures under the heading of ‘Use of Force” mandates that an Occurrence Report must be prepared by every employee who is involved in or who witnesses an incident in which force is used. It sets out that “at a minimum” the report must include: “a) an accounting of the events leading to the use of force; b) an accurate and precise description of the incident, the reasons for employing force, and a detailed description of the technique(s) used; c) a description of the inmate’s weapon, if any, and the manner in which it was used; d) a description of injuries received, if any, and the treatment given or received; and e) a list of all participants in and witnesses to the incident.” [168] The Institutional Services Policy and Procedures Manual also contains a sub- section related to ‘Reports’. I note the following provisions from same: “5.01 Responsibilities …………………………………………………………………………….. 5.7 Employees are required to prepare professional, accurate and complete reports. …………………………………………………………………………….. 6.5 Occurrence Reports 6.5.1 Occurrence Reports are required to document relevant details regarding daily operation. 6.5.2 Employees involved, or who are witnesses to an incident must complete an Occurrence Report. …………………………………………………………………………….. - 74 - 6.5.4 Occurrence Reports are to contain information on what the employee observed, what actions were taken, what others were doing and who was present during the incident………………………. ……………………………………………………………………………………… 6.5.6 Employees are required to prepare accurate and complete Occurrence Reports before they go off duty on any incident or situation they observed or were involved in. The only exception will be with the approval of the superintendent or designate. …………………………………………………………………………………..” [169] The need for a CO to file an accurate and comprehensive Occurrence Report is also referenced in the following documents: Defensive Tactics-Theoretical Concepts, Lesson Plan (exhibit #91); Defensive Tactics-Theoretical Concepts, COTA Program (exhibit #151); and the Standing Orders of the Sarnia Jail (exhibit #120). [170] CO Dave Esser, CO Vella, CO Perrin, CO Turner and CO Charrette all submitted Occurrence Reports relating to the use of force incident of August 31, 2011. [171] The first Occurrence Report submitted by CO Esser on August 31, 2011 reads: “At about 0915 Inmate A was to go to video court. She initially refused. She eventually did go. When she came back from the video room she was taken in to see the nurse. After she saw the nurse she came out of the room and told OM Cameron that she would not go back to area 5. He told her that she had to go to area 5. She again refused. I told her that there was no other place for her and she would have to go back there. She threatened to hit me. At that point I grabbed her right arm and officer Vella grabbed her right arm. We held her against the wall. She kept threatening me. We escorted her to area 5. She attempted to keep the cell door open and threw a cup of milk at me. I ordered her to go to the back of her cell. She refused. Officer Vella and I entered the area. Inmate A sat down on the bunk and kicked me in the groin. I did a distraction to the face and held her down on the bunk. When we released her she kicked me in the groin again. I repeated my actions, told her to stop. She remained on the bed and we left the area.” (exhibit #6) [172] Mr. Kitchen testified that he reviewed the above Occurrence Report, after it was handed to him by OM Cameron, shortly after the incident. It was his evidence that he - 75 - did not consider it to be either a good or believable report. In this regard, Mr. Kitchen advised that he did not find CO Esser’s described use of the distraction to be believable. He noted that the Occurrence Report did not provide specifics as to how the distractionary strike was actually delivered. Mr. Kitchen also noted that CO Esser documented that inmate A sat down on the bunk. From his perspective, it did not make sense for CO Esser to then get closer to the inmate and to thereby make himself more susceptible to a kick. Mr. Kitchen further observed that the Occurrence Report failed to list the witnesses to the use of force. Because of his concern about the lack of detail surrounding the distraction to the face, he asked OM Cameron to request an Addendum Report from CO Esser. Mr. Kitchen, himself, subsequently advised CO Esser directly as to the need for greater detail about the nature of the distraction used when in the cell. He could not recall if he told either OM Cameron or CO Esser that the names of other participants or witnesses needed to be included in the Addendum [173] CO Esser’s second Occurrence Report, filed later on August 31, 2011, reads: “I have been asked to clarify the use of force on inmate A. When I struck inmate A I struck her with the back of my hand as per Ministry training concerning a distraction. This happened twice. The method was effective and we were able to hold the inmate down on the bunk without further incident.” (exhibit #7) Mr. Kitchen acknowledged CO Esser provided the additional detail that the distraction strike was delivered with the back of the hand. He remained of the view, however, that the Occurrence Report was still deficient and failed to meet the standards required by the Employer. Mr. Kitchen testified that he had a “gut feeling” the distraction strike was a retaliation for the inmate’s kick. In his mind, it made no sense for CO Esser to deliver such a strike in the circumstances, as described. More specifically, Mr. Kitchen questioned why CO Esser would get closer to the inmate to deliver a distractive strike, - 76 - then stay in a position which made him susceptible to another kick, and subsequently deliver a second strike. [174] Mr. Ireland testified that COs are taught what is to be included in an Occurrence Report whenever force is used against an inmate. He observed that report writing “is an extremely important part of the job”. Mr. Ireland expressed the opinion that CO Esser’s initial report did not satisfy the minimum standard expected by the Employer. I recorded approximately twenty (20) areas in which he thought the Occurrence Report was deficient, including the following: - CO Esser did not elaborate on the content of the inmate’s threat to hit him; - there was a need for clarification about how CO Esser and CO Vella held the inmate against the wall; - the Occurrence Report did not reference the names of other staff, apart from CO Vella, who were in the hallway and later in or near the cell; - the Occurrence Report did not explain why more COs entered the cell if the inmate was sitting on the bunk; - there was a distinct lack of detail surrounding the initial “distraction to the face’” and as to what was meant by the notation “I repeated my actions”, and - there was no reference as to whether there were any injuries sustained, whether Health Care was contacted and if any treatment was provided. [175] Mr. Ireland testified that, with respect to CO Esser’s second Occurrence Report, he assumed that if a distraction strike was used in accordance with Ministry Policy, it would have been delivered with an open hand. [176] Superintendent Fitzgerald similarly testified that COs are trained on report writing. He stated that it is not acceptable for a CO to submit an incomplete Occurrence Report. - 77 - [177] OM Lucas, in cross-examination, expressed the opinion that, at the time of the incident, staff at the Sarnia Jail were not as proficient as they should have been with respect to the completion of Occurrence Reports. In her view, the reports filed around that time period were not as detailed or descriptive as required. She described this as being a “common problem”. OM Lucas suggested that the quality of submitted reports improved after August, 2011 as a consequence of related training. [178] CO Dave Esser submitted his first Occurrence Report to OM Cameron shortly after 9:24 a.m. on August 31, 2011. It was his evidence that after OM Cameron read the report, he asked whether CO Esser was sure he wanted to include the last three (3) lines, relating to the distraction to the inmate’s face. CO Esser stated that he told OM Cameron, in the presence of Mr. Kitchen, that he had hit the inmate and was leaving that portion in his report. [179] CO Esser agreed that his initial Occurrence Report did not reference the neck hold and how he held inmate A against the wall. When asked why that was the case, I recorded his answer as, “We never got that specific in our Occurrence Reports”. CO Esser further agreed that his report did not mention any closed fist strikes. By way of explanation, he stated that “something like that” would not normally be included in an Occurrence Report. In cross-examination, CO Esser acknowledged he told Inspector McNair during the CISU interview that he “played it down” when he described his actions as a “distraction to the face”. CO Esser also clarified that the inmate “wacked”, rather than “threw” the cup of milk. Additionally, he could not recall having ordered the inmate to go to the back of the cell. CO Esser stated that the only change he would now make to the report would be to clarify that he, as opposed to “we”, held the inmate - 78 - against the wall. He noted that, while there were errors in the report, it did speak to a use of force in both the hallway and in the cell. It was his evidence that the initial Occurrence Report was a “good report” and that it was not “deliberately vague”. [180] CO Esser testified that Mr. Kitchen asked him to “rewrite” his Occurrence Report. He stated he responded to the request by telling Mr. Kitchen that the report was a legal document which could not be changed. CO Esser claimed that he immediately felt the Employer was “looking for something” and that they were “going to go after him”. In his opinion, Superintendent Fitzgerald wanted to get rid of him. [181] CO Esser stated Mr. Kitchen informed him that he needed to know what had occurred during the incident. It was his recollection that he then told Mr. Kitchen what happened “from start to finish”, and that Mr. Kitchen then instructed him to put the narrative into a written report. CO Esser testified that he probably did not tell Mr. Kitchen how he held the inmate up against the wall in the hallway. He maintained, however, that he did tell the Security Manager that he used closed fist strikes in the cell. CO Esser subsequently prepared the second Occurrence Report and then submitted same to Mr. Kitchen. [182] Mr. Kitchen, in reply, testified that he asked for an Addendum to CO Esser’s initial Occurrence Report. He denied telling CO Esser that he had to rewrite the report. Mr. Kitchen also denied that CO Esser gave him a full verbal account of everything that had occurred during the incident. [183] CO Esser’s second Occurrence Report advised that he struck the inmate with the back of his hand “as per Ministry training concerning a distraction”. He also reported - 79 - that “this happened twice”. CO Esser, in his evidence concerning this later report, said that the first strike was with the back of his hand. He testified that he did not mention the subsequent strikes with a closed fist, as he was then aware the Employer was “going after him for a use of force”. He advised that this concern led him to write “as little as possible”. CO Esser acknowledged that his second report should have referenced a total of three (3), rather than two (2), strikes. He could not explain the discrepancy in his report on this point. I note, at this juncture, that CO Esser also neglected to reference his grip of the inmate’s neck and throat area while in the hallway. [184] CO Esser advised that he considered his second Occurrence Report to be “very accurate”. In cross-examination, however, he agreed that the report, notwithstanding it was a legal document, was deliberately vague. CO Esser asserted that he did not show either of his Occurrence Reports to anyone other than OM Cameron and Mr. Kitchen. [185] CO Esser stated that prior to August 31, 2011, he had never been disciplined for writing a poor or incomplete Occurrence Report. A sampling of his previous reports between May, 1987 and August, 2011 was submitted into evidence (exhibit #153). CO Esser noted that he was not asked to prepare a supplementary report in respect of any of the incidents reported. Similarly, he advised that he was not disciplined for failing to include sufficient detail therein. [186] CO Vella filed three (3) Occurrence Reports relating to the incident of August 31, 2011. These were filed as exhibits #16, #18 and #21. The first report was prepared on August 31, 2011 at 11:17 a.m. and the other two (2) were prepared on September 6, 2011 at 1:35 p.m. and 3:51 p.m., respectively. - 80 - [187] CO Vella’s first Occurrence Report stated that the inmate was restrained against the wall in the hallway, so that she and CO Esser could gain proper control. CO Vella did not mention CO Esser’s grip of the inmate’s throat or neck area. She also did not report that CO Esser struck the inmate while in the cell. CO Vella did report that the inmate tried to swing at them. She testified that this Occurrence Report was shared with CO Turner and CO Charrette, so that “we had the right times and occurrences”. CO Vella stated that when she originally prepared the report, she felt it “substantiated” CO Esser’s initial Occurrence Report. She agreed that her report was not accurate and did not reflect what actually transpired during the incident. CO Vella advised that she worded the report, as she did, “out of fear” for reprisals from other co-workers. When asked what kind of reprisals she was worried about, she listed the following: being called a “rat”; not having backup; and “being treated like shit”. CO Vella was also asked where the fear came from. I recorded her reply as: “It is the Code of Silence that goes on, it is just what you do”. [188] CO Vella’s second Occurrence Report similarly did not mention CO Esser’s grip on the inmate while in the hallway. CO Vella added that once in the cell, she believed that CO Esser used an open handed distraction to gain control of the inmate and diffuse the situation. Given CO Vella’s use of the word “believe” in her report, Mr. Kitchen, on reading it, was unsure whether such a strike was actually delivered or not. CO Vella, in her evidence, acknowledged that the second Occurrence Report was also inaccurate. She testified that she submitted it out of fear, as she “did not want to break the Code”. [189] In her third Occurrence Report, CO Vella wrote that she observed CO Esser “give as open handed distraction” to the inmate’s face. She neglected to mention any - 81 - closed fist strikes and, again, did not reference CO Esser’s grip on the inmate during the encounter in the hallway. CO Vella agreed that this report was inaccurate and that it, too, was submitted out of fear. [190] CO Vella testified that at the time she wrote the three (3) Occurrence Reports, she knew she was obligated to provide a true and accurate account of events. She, nevertheless, stated that she was then “fine” with wording the reports as she did. When asked if her fears subsequently materialized, she answered “absolutely”. CO Vella was, ultimately, disciplined for failing to provide an accurate and precise description of all of the circumstances surrounding this use of force, and for making a concerted and purposeful attempt to conceal the excessive use of force, all in contravention of Ministry policies and procedures. [191] CO Perrin’s Occurrence Report (exhibit #13) was prepared at about 10:21 a.m. on August 31, 2011. Her report did not document any of the incident which took place in the hallway. With respect to events in the cell, CO Perrin simply wrote: “Inmate A was restrained by being held down and told by staff to stop kicking and to stay on her bed”. CO Perrin did not report any open handed or closed fist strikes. In brief, her report was very short and lacking in detail. It was her evidence that the Occurrence Report was submitted directly to OM Cameron, and that she did not show it to anyone else before doing so. [192] CO Perrin testified that her Occurrence Report was not an accurate description of what she witnessed. When asked why she would then submit it, I recorded her answer as: “I know if I wrote what actually happened, it would be all over the Jail”. CO Perrin added that she felt she would have been labelled as a “rat”, if she gave a true - 82 - and accurate account of the events. She agreed, in cross-examination, that no one pressured her in terms of what should be included in her report. CO Perrin added that no other CO involved in the incident showed her their report. She agreed, however, that it was then common practice for COs to share their Occurrence Reports after an incident. Like CO Vella, CO Perrin was disciplined for her deficient report. [193] CO Turner filed two (2) Occurrence Reports relating to the incident of August 31, 2011. The first one was submitted on the day of the incident (exhibit #12) and the second one was submitted on September 6, 2011 (exhibit #19). [194] In his initial Occurrence Report, CO Turner wrote that Inmate A made a punching motion towards CO Esser, and that CO Esser grabbed the inmate’s right arm and, along with CO Vella, escorted her to Area 5. He did not report CO Esser’s hold on the inmate’s neck or throat area. In terms of what occurred in the cell, CO Turner reported that CO Esser “offered a distraction to the face of inmate A”, after she kicked him and CO Vella. CO Turner did not describe the distraction and only referenced one (1) strike. [195] CO Turner testified that he spoke to CO Vella and CO Perrin before he prepared his Occurrence Report. He stated that CO Esser was not present for the discussion, and that he spoke to these other COs in order to get a sense of how he should describe the incident. CO Turner maintained that he did not read anyone else’s Occurrence Report, including CO Vella’s initial report, before he completed his report. Similarly, he stated that he did not share the report with others upon its completion. He acknowledged, however, that he did speak to CO Vella and CO Perrin after submitting his Occurrence Report in order to learn what they had reported. At that point, CO Turner did communicate the contents of his Occurrence Report to them. - 83 - [196] CO Turner testified that he did not believe CO Esser showed him his report before he wrote exhibit #12 and maintained that he did not read such report. CO Turner advised, however, that “one of the reports was up there” (meaning on the second floor of the Sarnia Jail) before he completed his report. He stated that he was unsure whose report it was and indicated that, in any event, he did not read it at the time. CO Turner insisted that CO Esser did not tell him what to report. He denied that CO Esser’s influence in the Jail, as the Local Union President, had anything to do with his failure to report the grip employed in the hallway. On my reading, this latter assertion would seem to run counter to what he told Superintendent Fitzgerald at his Allegation Meeting held on March 1, 2012, as documented in exhibit #178. CO Turner agreed that he failed in his initial Occurrence Report to provide an accurate and precise description of all of the circumstances surrounding this use of force. [197] At the request of Mr. Kitchen, CO Turner prepared his second Occurrence Report. He did not reference therein the neck or throat hold used by CO Esser in the hallway. The focus of his comments was on what occurred in the cell. CO Turner reported that when the inmate tried to stand back up, after attempting to kick CO Esser and CO Vella, the former “used the back of his right hand as a distraction technique to the face of inmate A”. He seemed to refer to only one (1) strike being delivered. CO Turner asserted that his second report was accurate. I note that CO Turner did not mention in either of his reports that CO Charrette grabbed the back of his shirt while he was in the cell. [198] It was the thrust of CO Turner’s evidence that Mr. Kitchen instructed both he and CO Vella on September 6, 2011 to rewrite their initial Occurrence Reports. He testified - 84 - that when he completed his second report, he attended at Mr. Kitchen’s office to submit same. CO Turner stated that CO Vella was there at the time, and that Mr. Kitchen told her that her supplementary report was “not good enough”. It was his recollection that CO Vella asked for it back, and, on getting it, put it in the shredder. In reply, Mr. Kitchen denied that he instructed CO Turner or CO Vella to rewrite their reports. He stated that the word “rewrite” was never used. Mr. Kitchen testified that he alerted both COs to certain areas of their Occurrence Reports that needed to be elaborated on. He indicated that, in substance, he was looking for clarification and not just for facts to support his gut feeling as to what may have occurred on August 31, 2011. [199] CO Charrette’s Occurrence Report (exhibit #11) was submitted on the day of the incident. She reported that the inmate was “directed up against the wall so staff could gain control of her arms”, and that she was then escorted to Area 5 by CO Esser and CO Vella. CO Charrette made no mention of CO Esser’s hand being on the throat, neck or upper body of the inmate. She agreed that she also did not provide any information about turning her body towards Video Court at about the time the inmate was directed up against the wall. CO Charrette, additionally, did not reference any strikes being delivered by CO Esser while in the cell. In her evidence, she acknowledged that her Occurrence Report was badly worded, as it stated the inmate actually kicked CO Esser and CO Vella. CO Charrette testified that she did not, in fact, observe any contact from the kicks and, instead, should have said that the inmate “kicked at them”. I note that her report also did not document any tug on CO Turner’s shirt while he was in the cell. When asked to explain that omission, she stated: “I don’t know. In the big picture, I didn’t think it had any relevance”. CO Charrette agreed that several other aspects of her evidence were not included in her report. It was her - 85 - evidence that, at the time, she considered exhibit #11 to be an accurate report. With the passage of time, she agreed that it was a “crappy report”. [200] CO Charrette testified that no one, including CO Esser, told her what to include in, or exclude from, her Occurrence Report. She stated that she did not speak to anyone, and did not see anyone else’s report, prior to completing hers. More specifically, it was her evidence that CO Esser did not show her, and that she did not read, his initial report. CO Charrette asserted that CO Vella’s evidence on the point was untrue. She did not recall discussing the content of her Occurrence Report with, or showing it to, anyone involved in the incident. [201] OM Cameron did not testify in this proceeding. His four (4) Occurrence Reports relating to the incident were filed as exhibits #14, #15, #20 and #22. I note as follows with respect to these reports: i) OM Cameron’s first report of August 31, 2011 made no reference to the neck or throat hold in the hallway or to any strikes in the cell. He stated therein that CO Perrin, CO Turner and CO Charrette were between him the bunk. To be clear, OM Cameron positioned CO Perrin in the cell at the material time; ii) OM Cameron’s second report of the same day related exclusively to a request that CO Esser provide more detail about the nature of his distraction strike. The request led to the production of CO Esser’s second Occurrence Report; iii) OM Cameron’s third report of September 6, 2011 also made no reference to the neck or throat hold in the hallway or to any strikes in the cell. He positioned CO Perrin standing by the phone on the wall at the cell door. OM Cameron attached a diagram to the back of his report which showed the position of all the COs in the cell; and iv) OM Cameron’s fourth report of September 7, 2011 did advise that, after CO Esser and CO Vella pinned the inmate against the wall in the hallway, CO Esser “held her arm with his left hand and used his right hand to grab her throat”. OM Cameron did not report anything about the strikes in the cell. - 86 - [202] It is apparent on the evidence that Mr. Kitchen, after reading the Occurrence Reports submitted, believed that he was not getting a full and accurate account as to what occurred in the hallway and cell on August 31, 2011. This belief solidified after his interview of inmate A on September 7, 2011. [203] CO Vella presented evidence, contrary to that provided by CO Esser, CO Turner and CO Charrette, with respect to the sharing of Occurrence Reports. CO Vella testified that CO Esser prepared his Occurrence Report in the Computer Room on the second floor of the Jail immediately following the incident. It was her evidence that, when his report was completed, she, CO Turner and CO Charrette all read it within a couple of minutes of each other. In her words, “we all read it and passed it on”. CO Vella stated that the only thing CO Esser said to her at the time was, “read this”. It was her impression that he was trying to “threaten and intimidate” her into writing her Occurrence Report in a way that would substantiate his account of the events. CO Vella acknowledged that CO Esser did not say anything to her at the time that was overly threatening, and that he did not expressly tell her to ensure her report matched up with his. She, nevertheless, felt some pressure to ensure that it did. In this regard, she stated that getting CO Esser’s Occurrence Report did influence her a lot, in the sense she had to construct her report in a way that would not “incriminate him”. CO Vella advised that the “unwritten rule” was that Occurrence Reports should “match up”. She advised it was her experience, since starting at the Sarnia Jail in 2002, that COs commonly share their reports with colleagues before submitting them. CO Vella also testified that CO Turner and CO Charrette shared their reports with everyone on August 31, 2011 prior to their submission to management. - 87 - [204] Superintendent Fitzgerald forwarded a memorandum to Mr. Barry McDonnell, then Acting Director of the Western Region, on September 2, 2011 concerning the use of force incident on August 31, 2011 (exhibit #123). The memorandum contained a summary of the facts, as then understood; a list of “Points of Consideration”; and items requiring follow up. The latter section reads: “Follow up • The use of force to control the I/M initially (taking control of the I/M’s arms), when she threatened to hit CO Esser, was reasonable, authorized, and justified and does not require any further action. • The use of force (taking control of the I/M’s arms), when she refused to move from the segregation door so it could be secured, was reasonable, authorized, and justified and does not require any further action. • It is not clear that the use of a distraction technique to the face (on two occasions) was reasonable, authorized, and justified. - A Local Investigation Report has been initiated. - EMDC has been contacted and will assist in obtaining a written statement from the I/M concerning this incident. - EMDC will also assist in obtaining additional photographs and/or other documentary evidence concerning any injuries this I/M sustained. - Sarnia Jail RMT will review the incident and make any recommendations and/or suggestions.” [205] Superintendent Fitzgerald dispatched Mr. Kitchen to interview the inmate at the EMDC on September 7, 2011 for purposes of completing the internal review of the incident. As previously mentioned, immediately after the interview Mr. Kitchen contacted the Superintendent and asked him to remain at Sarnia Jail so that he could be briefed on the information obtained from the inmate. When they subsequently met, they discussed the interview and listened to the audio recording of same. Mr. Kitchen advised Superintendent Fitzgerald that he found the inmate to be “very credible”. It is apparent that the Employer obtained new information from the audio recording, namely; that CO Esser had grabbed the inmate’s neck or throat area for approximately five (5) to - 88 - six (6) seconds lifting her up to her tippy toes; and that CO Esser had punched the inmate with a closed fist while in the cell. Superintendent Fitzgerald noted that this information had not been communicated in any of the Occurrence Reports received as of that time. [206] Later that day, Superintendent Fitzgerald met with OM Cameron and asked for a full account of what had occurred in the hallway and in the cell on August 31, 2011. The Superintendent’s notes of this meeting were filed as exhibit #125. It was his evidence that what OM Cameron then told him about CO Esser’s grip of the inmate’s throat reinforced the credibility of what the inmate had previously said to Mr. Kitchen concerning the hold. [207] Superintendent Fitzgerald signed off on the Local Investigation Report (exhibit #10), and forwarded same to the Regional Director, on September 8, 2011. The Regional Director determined on the following day that the matter should be “escalated to the CISU”. Inspector McNair was assigned to conduct the investigation on that same date. [208] As previously mentioned, Inspector McNair interviewed CO Dave Esser on December 1, 2011. Inspector McNair noted that, while CO Esser had initially agreed to provide a voluntary statement, he later had to be compelled to answer the questions asked. Inspector McNair emphasized that CO Esser made certain admissions or acknowledgements with respect to his conduct towards inmate A that had not been reported at the outset in his Occurrence Reports. More specifically, CO Esser informed Inspector McNair that he grabbed hold of the inmate’s neck when in the hallway. Additionally, he told the Inspector that he had used closed fist strikes or punches - 89 - against the inmate’s head during their encounter in the cell. On the basis of what he was told during the interview, Inspector McNair concluded that CO Esser’s actions on August 31, 2011 were offensive in nature and not defensive, as claimed. [209] Inspector McNair maintained that he had not reached any definitive conclusions or opinions on the use of force issues, as of the date he interviewed CO Esser. He testified that he was not concerned that his investigation and report might be scrutinized by the Ombudsman’s Office which, itself, had commenced an inquiry into use of force within the Ministry in mid-August, 2011. It was Inspector McNair’s evidence that this other process had no impact on his investigation or its result. Inspector McNair also stated that he did not see himself as an advocate for those COs who said they were bullied as a consequence of their involvement in the instant use of force incident, namely CO Vella and CO Perrin. He insisted, rather, that he remained impartial, objective and distant throughout the investigation. Inspector McNair asserted that he just did his job in the search for the truth. In this regard, he commented as follows: “I followed the principle of fairness for all employees involved”. [210] Following the incident of August 31, 2011, assault charges were laid against the inmate as a consequence of her actions in the cell towards CO Esser and CO Vella. These charges were subsequently withdrawn, on the Crown’s request, on October 11, 2011. Inspector McNair testified that he had no role in the dropping of the charges. It was his evidence the Crown Attorney, Ms. Diane Foster, informed him on October 17, 2011 that the charges were withdrawn because, on the basis of additional information, there was no reasonable prospect of a conviction and it was no longer in the public - 90 - interest to prosecute the charges. I note the following excerpt from Ms. Foster’s letter to CO Dave Esser dated March 13, 2012: “With respect to the matter involving Ms. ………, I can indicate to you that it is our obligation to continually assess in any matter the reasonable prospect of conviction. A review of all pertinent information relating to the matter against Ms. ……… revealed that there was no reasonable prospect of conviction and as the charges against her were withdrawn on October 11, 2011. This decision was made after consultation with a senior member of the Sarnia Police Services and after a review by several Crowns within this office.” (exhibit #154) It is apparent from the evidence that CO Dave Esser believed that Superintendent Fitzgerald and Inspector McNair improperly lobbied the Crown Attorney to get the charges dropped. Indeed, he suggested that Ms. Foster’s explanation, as provided in the above letter, was “false”. [211] Inspector McNair’s findings with respect to CO Esser’s involvement in the incident, as documented in exhibit #62, were as follows: “1. The investigation determined that CO Esser did not act in accordance with ministry policies and procedures when he used force that was unnecessary, unreasonable and unauthorized and therefore excessive. In this incident, CO Esser used his right hand to grip the neck/throat area of a female inmate to pin her up against a wall. Thereafter, while in the cell of Area 5, he delivered three (3) closed-fist strikes to the side of the inmate’s head. According to CO Esser, that there were no observable physical injuries to the inmate and that she was taunting him verbally thereafter about the manner in which he used force against her is immaterial to this matter. Moreover, CO Esser’s after-the- fact explanation that the force he used against this female inmate in both instances as a means of self-defence is not believable and not credible given the evidence and statements from all parties involved. Neck/throat holds and closed-fist strikes (which he initially reported as distraction strikes with the back of his hand) are neither permissible nor part of the ministry’s self-defence training regiment. As indicated earlier in this report by the Provincial Coordinator of Use of Force Programs, SSDO Greg Ireland, the actions of CO Esser in this use-of-force incident are not consistent with any training that the ministry has ever provided to correctional staff. Moreover, the inmate did not advance on CO Esser or any other staff member, rather CO Esser advanced on the inmate in both instances as a measure of force and intimidation. The force used by CO - 91 - Esser is deemed as offensive in nature rather than defensive under the circumstances. 2. The investigation further determined that CO Esser did not act in accordance with ministry policies and procedures when he failed to accurately report, articulate and justify the force he used in the execution of his duties on August 31, 2011 at about 0915 hours. In fact the details submitted in his two ORs were largely inaccurate and characterized as a web of half-truths, untruths and lies by omission in an attempt to present himself in a more favourable light than was actually the case. Those critical details absent from his initial ORs are regarded as a concerted and purposeful attempt to conceal the excessive force he exacted upon the inmate on the noted date and time. If CO Esser genuinely held the view that his conduct that morning was within his legal parameters, he would not have concealed and directly or indirectly encouraged his superior and colleagues to conceal the method of force used and witnessed in their respective reports. 3. The investigation further determined that CO Esser did not act in accordance with ministry policies and procedures when during a UOF incident he employed techniques that are not consistent with ministry policy, procedures and training. The techniques employed by CO Esser - hand around the neck/throat area to pin the inmate against a wall and three (3) closed-fist strikes to the side of the inmate’s head - under the circumstances presented are not regarded as defensive in nature, but rather offensive in nature. 4. The investigation further determined that CO Esser exercised poor judgment in dealing with inmate ……. on the noted date and time and when he thereafter attempted to conceal the resultant physical altercation contrary to his legal, ethical and professional obligations and responsibilities. CO Esser’s reliance on the self-defence section of the CCC is irrelevant and without basis in this instance. His bringing this forward – instead of what the law and ministry policies, procedures and training - is an irresponsible and unacceptable attempt to rationalize what he otherwise attempted to bury and conceal in the first instance.” [212] Superintendent Fitzgerald testified that, following its release in February, 2012, he reviewed Inspector McNair’s Final Report and all of the exhibits referenced in the Exhibit Register attached thereto (exhibit #62). He further advised that he also reviewed the transcripts of the investigatory interviews (exhibit #65) and the audio recordings of same. There is no doubt, on the evidence, that the Superintendent - 92 - heavily relied on the Inspector’s Final Report, and the findings contained therein, in arriving at the disciplinary decisions which, ultimately, led to this proceeding. [213] Superintendent Fitzgerald stated that he had limited, if any, contact with inmate A prior to the incident here in issue. Subsequent to the incident, he did learn of her lengthy criminal record from a review of her OTIS Client Profile (exhibit #72). He acknowledged that he would have seen that there were a number of “Alerts” on her profile; that she was mentally unstable; and that there were a number of violent offences on her criminal record, including assault on a Peace Officer. Superintendent Fitzgerald noted, from his review of the interview transcripts, that staff generally described the inmate as belligerent, aggressive and strong. He also observed, however, that many of them had a good rapport, and had no issues, with the inmate. [214] Superintendent Fitzgerald agreed that staff in Corrections have to take what an inmate says with “a grain of salt” in trying to get to a true account of a situation or event. He acknowledged that inmates may “play things to their advantage”. In this instance, he found that the inmate had credibility as her interviews with Mr. Kitchen and Inspector McNair were consistent on the key points. While Superintendent Fitzgerald agreed that there were some inconsistencies in the inmate’s description of events, he noted that a lot of the information she provided was substantiated by what other staff had communicated in their interviews with Inspector McNair. Superintendent Fitzgerald also considered it significant that both Mr. Kitchen and the Inspector believed the inmate was credible. He stated that it was their responsibility to make an assessment of her credibility and, in the final analysis, he accepted their assessment. - 93 - [215] Superintendent Fitzgerald agreed the inmate may have thought that saying she wanted to charge CO Esser with assault might delay her transfer out of Sarnia Jail. He did not, however, find the delay in communicating this intent to be suspect. In his mind, the gap of approximately forty-eight (48) hours did not change the fact that an excessive use of force occurred. Superintendent Fitzgerald did not believe the inmate was, in substance, trying to construct a case for self defence in the event she was “street charged” for what occurred on August 31, 2011. [216] Superintendent Fitzgerald agreed that the inmate was in an aggressive phase at the time of the incident in the hallway. In his opinion, it was immaterial whether the inmate’s threat to hit someone was general or specific. In either case, the comment was aggressive, and should be treated in the same manner under the Use of Force Management Model, as described by Mr. Ireland. Superintendent Fitzgerald did not know whether force was justified after the making of the threat. He speculated that it might have been a situation where a control technique could have been used to take the inmate down to the floor. The Superintendent, however, clearly viewed the technique applied to the inmate’s neck or throat area by CO Esser as an excessive use of force. He did agree that it was fair to say the inmate’s airway was not cut off by the hold, given that she continued to yell. Superintendent Fitzgerald did not accept that the inmate exaggerated what occurred by saying the hold was a choke. [217] In cross-examination, Superintendent Fitzgerald was directed to the discrepancy as to whether inmate A tapped or kicked CO Esser when in the cell. He responded by saying that, to him, the difference was not material, and stressed that his focus was on the use of force by CO Esser. On this point, Superintendent Fitzgerald stated that, “three closed fist strikes to the head is excessive whether the inmate tapped or kicked”. - 94 - He advised that he would reach the same conclusion with respect to the degree of force used whether the kicks contacted with CO Esser’s groin or leg. Simply put, Superintendent Fitzgerald believed that CO Esser’s response was not justified by the use of force continuum. In his re-examination, the Superintendent observed that CO Esser inserted himself into a situation in the hallway that was being managed by OM Cameron. He expressed the opinion that if CO Esser had not used excessive force in the hallway, the inmate, given her history, would likely have complied with verbal direction after first asserting herself. [218] Superintendent Fitzgerald, on his reading of the entirety of the relevant materials, determined that CO Esser called the inmate “a pussy” while in the cell. He noted that the inmate used the word numerous times during her interviews with Mr. Kitchen and Inspector McNair. He further noted that what several COs said about the incident was found not to be credible. Superintendent Fitzgerald recalled that, at the Allegation Meeting held with CO Esser on March 2, 2012, the latter focused his response to the allegation on swearing rather than on the use of this particular word. In contrast, Superintendent Fitzgerald did not view it in the context of swearing, but as the use of inappropriate language which violated the Ministry’s policies and procedures, as well as the Ontario Human Rights Code. Superintendent Fitzgerald considered that CO Esser’s focus was an attempt to be unresponsive and avoid the allegation. [219] Superintendent Fitzgerald reached his conclusion with respect to the use of the word “pussy” well before any evidence was presented in this case. At the time he testified, CO Vella and CO Perrin had completed their evidence. CO Turner and CO Charrette had not yet been called as witnesses for the Union. In cross-examination, - 95 - Superintendent Fitzgerald was asked whether he would “stand by” this ground of termination knowing that CO Vella and CO Perrin testified that they did not hear CO Esser say the word and that others would later be giving evidence to the same effect. Superintendent Fitzgerald responded that it was difficult to answer the question and referenced the following: the inmate came across as very credible and consistent; CO Vella and CO Perrin were involved in the use of force scenario and, perhaps, for that reason did not hear the word used; he had not heard the evidence to be later presented; and the CISU Report of Inspector McNair questioned the credibility of CO Turner and CO Charrette. In summary, he advised that he still leaned towards the inmate’s evidence on the point, while acknowledging it was difficult to make a decision without all of the information. Because of this latter factor, Superintendent Fitzgerald was not prepared to amend his assessment of what occurred. He stated that, on the basis of what he had read and heard, he stood by the decision to include the use of the word “pussy” as a ground for termination. [220] Superintendent Fitzgerald agreed that he and CO Dave Esser frequently disagreed on operational matters concerning the Sarnia Jail. He also agreed that CO Esser, on occasion, would email his superiors, including the Minister, the Assistant Deputy Minister, and the Regional Director, to communicate his concerns and complaints. Superintendent Fitzgerald acknowledged that this approach of CO Esser to “go over his head” might irritate him at times. He advised that this was largely due to CO Esser providing his superiors with inaccurate information. Superintendent Fitzgerald resisted the suggestion that CO Esser was “a thorn in his side”. It was his evidence that he expected a Local Union President to do what they thought necessary to advance their objective. He described his relationship with CO Esser as professional. - 96 - Superintendent Fitzgerald testified that CO Esser’s past action as Local Union President did not impact his decision to terminate. He reiterated that, instead, he relied on the CISU Investigation Report and CO Esser’s responses at the Allegation Meeting of March 2, 2012. [221] CO Esser testified that he found it difficult to work with Superintendent Fitzgerald. It was his perception that the Superintendent did not have a real desire to work with the Union. In his words, it was “a constant fight to get regular things done”. CO Esser was also of the impression that Superintendent Fitzgerald did not like him personally. [222] CO Esser, in his evidence, referenced numerous examples of disagreements which he had with the Superintendent, including the following: i) CO Esser testified that he experienced difficulty over a six (6) month period with respect to being paid while on union leave to assist with the ‘Save The Jail Campaign’. He accused Superintendent Fitzgerald of deliberately trying to cause a problem for him with respect to this issue. He also appeared to think that the Ministry was retaliating against him because of his efforts to keep the Sarnia Jail open. CO Esser described the steps he took in an attempt to remedy the problem of either not being paid or being paid an incorrect amount. He observed that Local Union Presidents at two (2) other jails slated for closure did not experience similar problems. Exhibits #145, #146 and #147 were filed with respect to this pay issue; ii) CO Esser stated that an issue arose with respect to how CO Turner and CO Charrette should be paid when off on suspension as a result of their involvement in the August 31, 2011 incident. CO Esser indicated that, at least initially, there was always a discrepancy in their pay. The issue, apparently, related to what hours should be counted in the averaging process described in Appendix COR 10. CO Esser felt that Superintendent Fitzgerald was more interested in creating, than resolving, the problem. Ultimately, he emailed the Assistant Deputy Minister of Adult Institutions in an effort to rectify the situation. CO Esser testified that he “went higher”, as he did not think the Superintendent would fix the problem as quickly as needed. Exhibit #148 was filed relating to this matter; - 97 - iii) CO Esser testified that Superintendent Fitzgerald would not agree to pay him for a night shift he booked off. It was his evidence that certain medications he was taking for a medical procedure scheduled for the following day prevented him from working the shift. It is also clear that CO Esser expressed concerns to the Shift Supervisor about working the shift as an inmate, who had previously made threats against him, had been returned to the Sarnia Jail. It was CO Esser’s evidence that the Superintendent refused to pay him for the shift notwithstanding he was prepared to provide a supporting doctor’s note. Ultimately, such a note was submitted and a grievance was filed. I was told that the grievance was subsequently resolved; iv) CO Esser expressed the opinion that it was hard to resolve outstanding problems in a timely fashion. By way of example, he referenced a leak in the front office from an overhead pipe allegedly involving asbestos and fecal matter. CO Esser stated that the leak was close to a staff member’s desk and that a pail was simply placed beneath the leak. CO Esser advised that he was notified of this problem while on suspension for the incident here in question and that he was then told the problem had been present for some (5) months. He noted that Superintendent Fitzgerald would have to walk by the area affected in order to access his office. An email chain between CO Esser and the Superintendent concerning this matter was filed as exhibit #149. Ultimately, CO Esser filed a complaint with the Ministry of Labour, which led to an Inspector’s attendance at the workplace. No formal order was issued, as management undertook to fix the problem within a day or two. CO Esser stated that the leak was fixed within that time frame. In his view, the delay in resolving the issue reflected a lack of concern, on the Employer’s part, for the health and safety of staff. He asserted that the Superintendent should have been able to correct the problem in just two (2) days, as he did. The Ministry of Labour Field Visit Report was filed as exhibit #162; and v) CO Esser referenced a meeting in January, 2010 at the Regional Office in London, Ontario attended by himself, Mr. Rain Loftus, an OPSEU Staff Representative, Superintendent Fitzgerald, Ms. Marg Welsh, the Regional Director, and Mr. Dave Hatt, the Assistant Regional Director. It was CO Esser’s view that, while vague operational things were discussed, the meeting was really about him being nicer to Superintendent Fitzgerald. He described the message being delivered as, “we aren’t the problem, you are the problem”. CO Esser testified that the senior managers both told him that he was “the common denominator” with respect to problems which had occurred under several Superintendents. CO Esser advised that the comment did not bother him that much, as Local Union Presidents will “always have to take the lead in standing up for the collective agreement and the rights of employees”. He added that “confrontation is a part of that”. CO Esser, however, maintained that he was not the problem. - 98 - He testified that he first elevated complaints from the Manager to the Superintendent and then to the Region, if not corrected. CO Esser explained that if such issues were not addressed by the Region, he would forward it to the Assistant Deputy Minister and/or the Minister. It was his evidence he told Superintendent Fitzgerald, Ms. Welsh and Mr. Hatt that this was his approach to problem solving. [223] CO Esser also expressed the opinion that Superintendent Fitzgerald was trying to get at him through the initial suspension of his son, CO Dean Esser. In his view, “it was a dirty thing to do”. CO Dean Esser testified that the relationship between his father and Superintendent Fitzgerald was “terrible”. He observed that they engaged in “back and forth arguments and debates”. CO Dean Esser expressed the opinion that Superintendent Fitzgerald was sent to the Sarnia Jail to destroy the Union, to “run the Jail into the ground”, and to cause turmoil amongst staff. He stressed that his father, as the Local Union President, had to fight with the Superintendent about these things. On a related point, CO Dean Esser stated that Employee Relations Committee meetings were cancelled for a lengthy period of time, as a consequence of Superintendent Fitzgerald’s failure to respond to issues brought forward by the Union. In cross- examination, he acknowledged that he was not a member of that committee and did not, accordingly, attend its meetings. [224] In his evidence, CO Dean Esser suggested that his initial suspension, and ultimate termination, was the result of the poor working relationship between his father and Superintendent Fitzgerald. He expressed the opinion that the Superintendent was trying to get back at the father through his son. CO Dean Esser acknowledged that prior to this incident he had met with the Superintendent on several occasions about his stressful home life, and that he was granted time off in late 2010 and early 2011 to - 99 - accommodate same. He further advised that he had asked Superintendent Fitzgerald to provide a reference in support of an application for work with the police. [225] CO Mitchell, the Vice-President of the Local Union, described CO Dave Esser as “a very active President”. She noted that he would often contact the Regional Director or Deputy Minister if issues could not be resolved locally. In her view, CO Esser had a “frustrating relationship” with Superintendent Fitzgerald. CO Mitchell explained that CO Esser was frustrated as his efforts to correct problems at the Jail were not well received. She asserted that the Superintendent “didn’t really care about union-management relationships”. She also expressed the belief that Superintendent Fitzgerald did not like CO Esser. [226] CO Perrin testified that on October 6, 2011, she went up to the Computer Room on the second floor of the Sarnia Jail to get some of her food out of the refrigerator. She was not entirely sure as to when she actually did this. Initially, CO Perrin stated that she went to the Computer Room to get her lunch, and that her ensuing conversation with CO Dean Esser occurred around the lunch period. She later agreed that the conversation may have been “in the morning sometime”, and possibly as early as 8:00 a.m. or 9:00 a.m. CO Perrin noted that she kept the food for all of her daily meals and snacks in the refrigerator on the second floor. In any event, it was her evidence that CO Esser was already in the Computer Room when she arrived there. It was her further evidence that she did not know he would be at that location, and that she did not go there to speak to him. [227] CO Perrin stated that she and CO Esser stated talking once she entered the Computer Room. She had no firm recollection as to how their conversation started. - 100 - While not entirely sure, she thought it may have commenced with her simply saying “hi”. CO Perrin testified that she then brought up her Occurrence Report, pertaining to the incident of August 31, 2011 (exhibit #13), on the computer. She maintained that CO Esser read the report off the screen. CO Perrin noted that she sat in the chair in front of the computer and that CO Esser stood beside her. She adamantly denied the suggestion that he did not then read her Occurrence Report. The force of her evidence was that he did read the document at that time. CO Perrin stated that she tried to tell CO Esser that neither she nor CO Vella had gone to the “front” to speak to Superintendent Fitzgerald about anything relating to the incident. She explained that she wanted to clarify this point, as there were rumours in the Jail to the contrary. CO Perrin recalled CO Esser stating that someone had gone to the Superintendent. She then reiterated that it was not her or CO Vella. It was her evidence that CO Esser then said “it is somebody” and that he would find out who it was. She testified that this latter comment made her feel that he did not believe her. It was CO Perrin’s recall that CO Esser then exited from the Computer Room and that she went downstairs shortly thereafter. She believed that they were together in the Computer Room for a maximum of ten (10) minutes. CO Perrin, in cross-examination, noted that in this first conversation CO Esser did not say he wanted to avoid discussing anything related to the incident of August 31, 2011. She agreed that CO Esser did not deserve to be terminated on the basis of this first conversation. [228] CO Perrin testified that the above exchange occurred shortly after another staff member, CO Derek Wilkins, had called her a “rat” in the Health Care Unit. She speculated that someone close to the incident had heard her say “stop it” and incorrectly assumed she was speaking to CO Dave Esser, rather than to the inmate. In - 101 - this regard, CO Perrin noted that she had directed the inmate to stop kicking. It was her belief that this basic misunderstanding of events in the cell area on August 31, 2011 led to the rumours in the Jail and to all of the adverse treatment she was subjected to thereafter. [229] After leaving the Computer Room, CO Perrin went to the Staff Room on the first floor of the Sarnia Jail. She stated that CO Christine Nutt was there when she arrived. CO Perrin stated that she was upset and crying at the time and that she told CO Nutt what had happened between her and CO Dean Esser upstairs in the Computer Room. She recalled that CO Nutt then left the Staff Room and spoke to CO Esser at a nearby elevator. She heard CO Nutt say “make it right”. CO Perrin testified that CO Nutt then returned to the Staff Room and informed her that CO Esser would talk to her upstairs in the Teacher’s Room. During cross-examination, CO Perrin testified as follows: CO Esser did not initiate the conversation with CO Nutt; it was possible that CO Esser actually came into the Staff Room and talked to her there; and CO Esser went up to the Teacher’s Room before she did. [230] CO Perrin testified that she went upstairs to the Teacher’s Room and that CO Esser was already there when she arrived. It was her evidence that their ensuing discussion occurred inside the room and not in a more open area just outside of same. CO Perrin stated that, once inside the Teacher’s Room, she commented as follows to CO Esser: “I just want you to know your Dad punched inmate A, not just a couple of times”. She explained that she made this comment in the hope he would talk to his father and that CO Dave Esser would then admit to a mistake “so that everyone would not have to go through this”. CO Perrin observed that her effort in this regard - 102 - apparently did not succeed, as CO Dean Esser responded by saying: “I don’t want to know about it, I don’t want to be involved, just stick to your report”. She recalled that these words were spoken in an aggressive, blunt and direct manner. CO Perrin was asked in-chief how she interpreted this response. In her mind, CO Dean Esser was telling her that it did not matter the inmate got hit, and that she should simply repeat what was contained in her Occurrence Report. CO Perrin added that she also felt helpless, because she knew she could not “stick” to her report. She offered the following explanation: “I couldn’t say I didn’t see anything when I was standing right there”. CO Perrin advised that she felt caught between doing what was right and “sticking up” for her fellow employees. [231] In cross-examination, CO Perrin was asked about her perception of the comment she attributed to CO Dean Esser. She replied that, as there was nothing in her Occurrence Report, she perceived that he was telling her to lie and not say anything about the incident. CO Perrin added that she took it as a threat and not as simply a “toss away line” to end the conversation. CO Perrin expressed the opinion that CO Esser’s termination was justified given the thrust of their second conversation. She disputed the suggestion that, while in the Teacher’s Room, CO Esser told her that he had no issues with her. She acknowledged this possibly could have been said earlier while she was in the Staff Room. Lastly, CO Perrin repeated that her account of events during the first interview with Inspector McNair reflected an effort, on her part, not to get anyone in trouble. She emphasized that she told the truth during their second interview. [232] On October 6, 2011, CO Dean Esser was assigned to Areas 8 through 10. It was his evidence that at about 8:00 a.m. that day he was on the computer in the - 103 - Computer Room. He recalled that CO Perrin walked into the room and that one of them said “hi” to the other. CO Esser testified that almost immediately CO Perrin told him that CO Wilkins had called her a “rat”. At that point, he asked her to repeat the assertion, which she did. CO Esser stated that he reassured her that he had never called her a “rat”, and suggested that if she had a problem with CO Wilkins that she take it up directly with him. He recalled that CO Perrin then said that CO Wilkins should be careful about who he called a “rat”, as he himself was one. CO Esser thought that she was referring to a prior investigation, in which CO Wilkins was involved, that resulted in the discharge of two (2) COs. He then told CO Perrin to exercise some caution when calling someone a “rat”, as the term was not used lightly within the Sarnia Jail. CO Esser agreed that the term can have a serious connotation if used against someone in the field of corrections. He also agreed that he did not file an Occurrence Report about CO Perrin’s use of the word “rat”, and that he did not tell Inspector McNair about it during their interview. [233] CO Esser recalled that CO Perrin next said that staff within the Jail were saying that she and others were “going up front” to tell Superintendent Fitzgerald about what had occurred in the cell between CO Dave Esser and inmate A. It was his evidence he informed CO Perrin that he had not heard that. He advised her the only thing he had heard was that someone had said to stop hitting the inmate. CO Esser stated that CO Perrin told him that such a statement was not, in fact, made during the incident in the cell. [234] CO Esser testified that CO Perrin then started to try to talk about the incident itself. He claimed he told her that he did not want to address the subject, as it had - 104 - nothing to do with him. He informed CO Perrin that he had not spoken to his father about it, and would not talk to her about the incident. CO Esser described CO Perrin as being upset and sensed she was concerned about the CISU investigation. It was his evidence that he continued to tell her that he did not want to discuss the incident. He testified, however, that he did say, if it were him, he would review his Occurrence Report before attending the CISU interview. CO Esser recalled that CO Perrin then mentioned that her report was terrible. He stated that, at that juncture, he told her he did not want to see it or talk about it. CO Esser testified that, while they were talking, CO Perrin logged onto the computer, brought up her report and urged him to read it. He maintained that, while he observed the report was not long, he did not read it. He believed he was then standing to the side of CO Perrin, some five (5) to six feet (6') away from her. CO Esser asserted he again told CO Perrin that he would not read her Occurrence Report, wanted nothing to do with it, and did not want to talk about it. He acknowledged that her repeated efforts to talk about the use of force incident caused him to become slightly annoyed. [235] CO Esser noted that at the start of their conversation, CO Perrin seemed angry and upset about her prior exchange with CO Wilkins. Later, as mentioned, he sensed she was concerned about the CISU investigation. He noted that she spoke with a raised voice at the beginning of their discussion and that her tone was just a bit louder than normal by the end. CO Esser indicated that at times his voice may have been slightly raised in order “to talk at her level”. CO Esser described CO Perrin as “a bit of a worrier” and noted that “things tend to bother her more than others”. He advised that it was his intent to try and calm her down. - 105 - [236] CO Esser testified that during the initial exchange he asked CO Perrin if he had been mean to her, CO Vella, or to anyone else involved in the incident. He stated that she answered in the negative. It was his evidence that he told her he was not worried about the situation and, for that reason, did not want to become involved. CO Esser stated that he told CO Perrin “the truth would come out in the end”. [237] CO Esser estimated that the above exchange lasted approximately five (5) minutes, after which he left the Computer Room to serve breakfast to the inmates in the Areas to which he was assigned. [238] In cross-examination, CO Esser agreed that he did not mention the following to Inspector McNair during his CISU interview: his advice to CO Perrin that she read her Occurrence Report before her interview; and that he observed that CO Perrin’s report was not lengthy. [239] CO Dean Esser testified that while walking through Area 10, approximately ten (10) to fifteen (15) minutes after the above conversation with CO Perrin, he met up with CO Marshall. It was his evidence that CO Marshall then asked him what was going on. CO Esser stated that he did not understand why CO Marshall would ask the question and, accordingly, asked him what he was talking about. CO Marshall informed him that CO Perrin was downstairs crying following the conversation in the Computer Room. CO Esser testified that he told CO Marshall that he did not know why she would be crying, as their prior discussion was “about nothing”. He then told his colleague that he would go downstairs and speak to CO Perrin about it. - 106 - [240] CO Esser subsequently went downstairs to the Staff Room. CO Perrin, CO Marshall and CO Christine Nutt were in the room when he arrived. CO Esser stated that CO Perrin was standing a few feet from the doorway. He observed that she was crying. It was his evidence that he put his arm on CO Perrin’s back and shoulder area and asked why she was upset, as he believed their prior conversation “went fine”. CO Esser testified that CO Perrin responded by saying, “No, it didn’t”. At that point, CO Esser walked out into the hallway and motioned for CO Nutt to come out and join him. When she did, they both went around the corner to an area near the pop machines. CO Esser then asked CO Nutt why CO Perrin was crying, as he believed he had not said anything objectionable during their prior exchange. He testified that CO Nutt replied as follows: “I don’t know either, but she is” and “you better make it right”. CO Esser then advised CO Nutt that he would speak to CO Perrin again and asked that she send her upstairs. At about the same time, CO Perrin walked out of the Staff Room and headed back upstairs to do Video Court. CO Esser stated that he followed up behind CO Perrin and that, when they reached the end of the second floor hallway, he asked if he could speak to her again. He indicated that she responded in the affirmative. CO Esser maintained that their ensuing discussion occurred right outside of Video Court. [241] CO Esser testified he told CO Perrin that he did not know why she was crying as he had not said anything to her, other than that he did not want to talk about the incident. It was his evidence that CO Perrin informed him she was upset about the CISU investigation. I note that her interview with Inspector McNair had not taken place as of October 6, 2011. CO Esser formed the impression that CO Perrin possibly wanted advice from him pertaining to the investigation. In cross-examination, he noted that he was not then a Union Steward, and that it was not his role to give that type of - 107 - advice as a CO. CO Esser testified that he told CO Perrin he was unwilling to talk about the incident and its aftermath given that his father was involved. He added that he had not spoken to anyone else involved in the incident and was not prepared or willing to speak to her about it. [242] It was CO Esser’s evidence that, during this second exchange, he told CO Perrin that he had no issues with her and that he reminded her that their last shift together had gone well. He further testified that he made the following comments: “I don’t think you are a rat, I’m just not going to talk about it with anyone”; and “But you and I are good and we have no issues”. CO Esser recalled that he asked CO Perrin if they were “good”, and that she said they were. He testified that CO Perrin continued to express concern about the investigation and that he repeated he was not going to talk about it. In cross-examination, CO Esser testified that he told CO Perrin not to be worried and to go into the interview and tell them what she knew. When reminded that he did not mention providing this guidance during examination in-chief, CO Esser stated, “I guess I left it out”. He also agreed that Inspector McNair was not told about this part of his exchange with CO Perrin. CO Esser advised that CO Perrin was “really upset” and crying during their conversation. He stated that his demeanour was “really mild”, as he wished to ensure everything was “cool”. [243] CO Esser stated that he cut CO Perrin off every time she started to talk about the incident. He acknowledged that CO Perrin may have said his father hit inmate A, but maintained that he did not hear the comment. CO Esser denied that he told CO Perrin he would find out, and get to the bottom of, who was “going up front” to speak with - 108 - Superintendent Fitzgerald about the incident. He further denied that he told CO Perrin to “stick to your report”, or words to that effect. [244] CO Marshall testified that he was in the Staff Room at some point between 8:30 a.m. and 9:00 a.m. on October 6, 2011. He stated that, during that period, he was approached by CO Nutt and told that CO Perrin was crying as a result of a prior conversation with CO Esser. CO Marshall indicated that CO Nutt told him to go upstairs and inform CO Esser that CO Perrin was crying. CO Marshall advised that he did not actually see her crying. Rather, he relied on CO Nutt’s account of what was happening. [245] It was CO Marshall’s evidence that he went up to the second floor and located CO Esser in Area 9. He stated he told CO Esser that he did not know what had transpired earlier between him and CO Perrin, but the latter was downstairs crying. CO Marshall recalled that CO Esser replied that he would finish off his rounds and then go down to the Staff Room. CO Marshall then left the area and returned to the Staff Room. He testified that CO Perrin came into the room within a couple of minutes of his return. He observed that she was not crying at the time, but seemed upset “from the look on her face”. CO Marshall did not recall her saying anything to him or CO Nutt. [246] CO Marshall testified that CO Esser entered the Staff Room within a matter of minutes. He observed CO Esser put his left arm around CO Perrin and heard him say, “heh, I thought we were good”. CO Marshall believed that CO Perrin nodded her head in agreement. He also noted that she put her head on CO Esser’s shoulder. It was his evidence that CO Esser was very quiet and used a soothing tone of voice. In CO Marshall’s view, CO Esser seemed genuinely concerned that CO Perrin was upset. It was his impression that CO Esser was attempting to console her. CO Marshall stated - 109 - that he thought CO Esser and CO Perrin left the Staff Room together to talk about “whatever issue was going on”. He was not sure where they went, and did not hear their subsequent conversation. [247] CO Esser advised that, for the most part, he got along with CO Perrin. He expressed the opinion, however, that she was not a good CO. He provided the following evidence in support of this opinion: i) CO Perrin treated staff poorly and was rude. CO Esser noted that she made a number of female COs, especially newer and younger ones, cry. CO Esser was unable to say whether he had seen this first hand. He did not submit any Occurrence Reports about the alleged mistreatment. I note that RN Plain presented direct evidence that CO Perrin had, in fact, engaged in this type of behavior; ii) CO Perrin would get into “yelling matches” with inmates. CO Esser indicated he had seen instances of this occurring and stated that he considered it to be unprofessional. From his perspective, CO Perrin did not handle situations well, as she would get “flustered and upset”. CO Esser, similarly, did not submit any Occurrence Reports about CO Perrin’s interactions with inmates; iii) In or around 2002, CO Perrin lost her day planner in Area 8, the female range. CO Esser noted that the book contained the key codes for doors at the Sarnia Jail; iv) CO Perrin made errors with respect to the inmate count on the night shift. CO Esser testified he heard from an OM that CO Perrin was unaware she was responsible for the inmate count at night; and v) Former inmates, who were friends of one (1) of CO Perrin’s sons, would “hang out” at her home with the son. CO Esser agreed that, if true, this would represent a conflict of interest for CO Perrin. CO Esser agreed that he never told management about the allegation. I note that CO McMahan made a similar allegation in his evidence. It is apparent from the evidence that CO Esser believed that CO Perrin was neither credible or reliable. - 110 - [248] In contrast, CO Esser described CO Vella as a “great CO” and as “one of the best we had there”. He stated that they had a good working relationship, and that his view of CO Vella was not affected by rumours as to why she had transferred to the Sarnia Jail from the Windsor Jail. It was his understanding, albeit not on the basis of direct knowledge, that CO Vella may have been labelled a “rat” at the latter institution following discipline having been imposed on several COs. [249] Inspector McNair interviewed CO Dean Esser on December 2, 2011. At that time, he had to compel CO Esser to answer his questions. Inspector McNair, in his evidence, noted the following: i) CO Esser told him that he knew nothing about CO Perrin’s complaints with respect to bullying and intimidation in the workplace. CO Esser indicated that he had not heard of it nor observed or participated in such conduct; and ii) CO Esser denied threatening, bullying or intimidating CO Perrin in the Computer Room. He further denied talking to her about the contents of her Occurrence Report. CO Esser also told him he did not say to CO Perrin that he would find out who said “stop” or “no” in the cell at about the time inmate A was being struck. On balance, it was Inspector McNair’s opinion that CO Esser failed to provide a “fulsome account” of the events of October 6, 2011. It is clear that he determined CO Perrin’s explanation was the more credible. [250] Inspector McNair’s findings with respect to CO Dean Esser’s involvement in the incident of October 6, 2011, as documented in exhibit #62, were as follows: “The investigation determined that CO Esser did not act in accordance with ministry policies and procedures when he made comments and remarks on or about October 6, 2011 in relation to CO Perrin’s involvement and reporting obligations in a UOF incident from August 31, 2011. Given the statements of witnesses (in particular COs Perrin, Vella, Mitchell and Nutt), it is accepted and believed that CO Esser used - 111 - terminology and inferences with CO Perrin during their exchange intended to, if not directly, indirectly intimidate and threaten CO Perrin into remaining silent during the CISU investigation process. In other words, she was to remain ‘solid’ and not break the ‘code of silence’. Based on CO Esser’s version of this exchange and his attempt to answer the Ministry Inspector’s direct questions in a veiled, circuitous manner, his explanation is less than credible and not believable under the circumstances. CO Esser should have known or ought reasonably to have known that any conversation, discussion or comments made to CO Perrin or any other employee in relation to this UOF incident was entirely inappropriate and could be regarded as interference with a ministry investigation.” [251] Superintendent Fitzgerald testified about the manifestations of the Code of Silence (COS) within the institution, and the negative impact on those staff who elect to breach the COS and make a full disclosure about problematic incidents. With respect to Occurrence Reports, he noted that the COS leads directly to the following problems: they lack details in the sense they are incomplete, inaccurate, or misleading; incidents referenced therein are downplayed; and there may be no Occurrence Report filed in situations where one is called for under the Employer’s policies and procedures. Superintendent Fitzgerald noted that the COS places staff in a difficult position, as their beliefs and personal ethics are pitted against a collective requirement to remain silent and support their peers. Superintendent Fitzgerald stated that there are both short term and long term consequences for a CO who chooses not to respect the COS. With respect to the former, he mentioned the following: the CO is labelled a “rat” or someone who is not “solid”; they do not receive assistance when asked for; response to their requests is delayed; there may be a failure to share pertinent information with them; and other staff may shun them within the institution, such as leaving the room when they enter. In terms of the latter, Superintendent Fitzgerald observed that the labelling of a person as a “rat” stays with them permanently and that, in fact, such a reputation travels - 112 - between institutions. He noted that COs who come forward are victimized and that such treatment causes them to become frustrated and angry. In his words, “the negative effect on people who come forward is greater than the benefit of coming forward”. Superintendent Fitzgerald advised that the presence of the COS makes it extremely challenging to manage the institution. In cross-examination, he acknowledged that there were some inconsistencies in the evidence of both CO Perrin and CO Vella. He, nevertheless, expressed the opinion that their credibility was “heightened because they came forward knowing the consequences of so doing”. [252] CO Perrin stated that her relationship with other COs prior to August 31, 2011 was fine. She acknowledged that occasionally issues arose, but asserted that they were always worked out. CO Perrin advised that she did not generally socialize with other COs outside of work, other than with CO Vella and one (1) other staff person. It was the thrust of her evidence that things changed dramatically after the incident here in issue. In her words, working at the Sarnia Jail since then has been “horrible”. CO Perrin referenced being exposed to the following treatment by other COs: CO Wilkins called her a “rat” to her face; no one would come to provide backup when she radioed for help with inmates; whispering about her by others in the hallway; she was ignored by other staff; she was subject to inappropriate and demeaning comments; she had to sit alone on the top floor of the Jail, while everyone else was in the Staff Room downstairs; people waited in the parking lot for her to exit the building in order to see who she talked to; a Ministry van was driven towards her vehicle by another CO when she was driving into work; her son was fired from his job because others had “a beef” with her; rumours were spread that she was bringing drugs into the Sarnia Jail; other staff went to the police in an effort to get her arrested; false WDHP complaints were filed against her that - 113 - she was compelled to answer; and an issue was resurrected concerning a physical altercation she had with CO Bissonnette some nine (9) to ten (10) years earlier. It was CO Perrin’s evidence that she started to experience the above treatment “right away” after the incident. [253] In cross-examination, CO Perrin asserted that she did get along well with co- workers before the incident occurred. Additionally, she denied that she made it a habit to go around yelling at other staff. [254] A substantial amount of evidence was presented by the Employer’s witnesses about the negative treatment experienced by CO Perrin following the incident of August 31, 2011. It is unnecessary to reference all of the evidence for purposes of this Decision. I note that the treatment complained of is referenced in the following exhibits: #34, #36, #37, #38, #39, #40, #42, #43, #44, #45, #46, #47, #103, #104, #105, #106, #107, #108, #117, #138 and #139. [255] From a reading of the above exhibits, it is clear that management personnel observed CO Perrin crying on several occasions while she was on shift. CO Perrin explained, at the time, that she was upset because of the nature of her interactions with other staff. It was her evidence that the treatment she received from other staff, following the incident of August 31, 2011, resulted in chronic anxiety and depression. CO Perrin stressed that she did not suffer from these conditions prior to the incident. She further advised that, as a consequence of these conditions and the medications prescribed for same, she is only able to work night shifts. While it was not entirely clear, it seems as if CO Perrin went on a schedule of straight nights at some point in late 2012. CO Perrin testified that the Employer offered her the opportunity to transfer to - 114 - another institution or to go off on stress leave. She declined the former, as she believed COs at another institution would quickly learn about the incident here in question and that such information could lessen the likelihood of their acceptance of her as a colleague. CO Perrin also determined not to take a stress leave. In her words, she should not be required to resort to either option “for telling the truth”. She added that, “it would make it seem like we were in the wrong”. [256] CO Perrin testified that she does not feel as if she is a CO. I recorded the following comments on this point: - “I can’t do anything anymore”; - “I used to like working with inmates, now I just go in on shift”; - “Everybody says I hide away”; - “I feel like I’m going to have a heart attack each night”; and - “I used to get along with everyone there, it was fun…Now it is terrible everytime I walk in the building. It hurts.” [257] CO Perrin was asked to file an Occurrence Report to explain how she was affected by the incident involving the Ministry van. The latter part of her Occurrence Report dated October 19, 2012 reads: “…………………………………………………………………………………… …….Do I feel threatened I guess to a extent I do, because of medical issues that have risen because of the stress I have endured from this incident and others that I have been written up and others that I haven’t, this has impacted me to the point where I have had to go on nights, I don’t want to go on escort because I don’t want people to feel uncomfortable around me or staff training that at one point I really enjoyed, and I question myself and my ability to be a good officer because of the daily ridicule and actions from other staff. I’m sorry to say that over the past year the repercussions of others actions have indeed changed me as a person.” (exhibit #108) [258] CO Perrin acknowledged that she did put in for, and actually worked, overtime following the incident of August 31, 2011. Records relating to her overtime availability - 115 - and monthly overtime hours worked were filed as exhibits #114 and #152, respectively. CO Perrin stated that most of the overtime related to the night shift. She further advised that she pushed herself to go into work in order to achieve a “salary goal”. CO Perrin, apparently, was named on the Province’s ‘Sunshine List’ for 2012. [259] CO Perrin testified that she did not have any problems with CO Dave Esser and CO Dean Esser prior to August 31, 2011. She accused them, however, of subsequently contributing to a poisoned work environment at the Sarnia Jail. CO Perrin denied that she was trying to get back at them through this proceeding. She did acknowledge, however, that it would be difficult for her to remain working at the Sarnia Jail if either CO Dave Esser or CO Dean Esser were reinstated to their former employment. [260] It was CO Vella’s evidence that, prior to this incident, she had a good relationship with her co-workers, including CO Dave Esser and CO Dean Esser. She stated that she then liked being a CO at the Sarnia Jail. CO Vella advised that now, she cannot stand the work as it is a different environment. She testified that she wakes up every day and does not want to go to work. CO Vella made the following comment relating to the change in perspective: “I did the right thing and I’m treated like an outcast”. It is apparent that she blames the Essers “and all their little minions” for this change. [261] CO Vella testified that she experienced the following treatment from other COs after the incident: other staff would not talk to her for the entirety of the shift; staff would ignore her radio calls for assistance and would not provide “back-up” when needed; an A and D Officer “snapped back” at her after she repeatedly asked for required information concerning a new admission; a CO referred to her as a “fucking bitch” after she accidentally bumped into him on leaving the Staff Room; the same CO switched his - 116 - post so as to avoid working with her; and a CO in A and D whispered something to a colleague and “rolled her eyes” when CO Vella approached the area. A substantial amount of evidence was also presented with respect to the above. I note that the treatment complained of is referenced in the following exhibits: #39, #49, #57, #95, #96, #97, #98 and #99. [262] It was CO Vella’s evidence that she was greatly impacted by the treatment she received from other COs after the incident of August 31, 2011. She referenced the following: loss of sleep; depression; increased use of sick time; and problems in her relationships. She commented that, “it just sucks because I used to love my job, now I can’t stand going into work”. CO Vella advised that she has looked for positions outside of the Sarnia Jail in order to escape a problem she sees as continuing. She insisted, however, that she would still come forward in the future to disclose the details of a problematic occurrence. In this regard she stated: “It is tough, but I’d do it again because I don’t want to lose my job”. [263] As with CO Perrin, CO Vella acknowledged that she put in for, and actually worked, overtime following the incident of August 31, 2011. Records relating to her overtime availability were filed as exhibit #101. I recorded the following comments of CO Vella with respect to overtime work: “Hate going to work doesn’t mean I won’t go into work and let these people beat me”; “I won’t turn down the money”; and “I’m not going to lose out because of them”. CO Vella also explained that she has a family to support and used the extra wages for vacations or “to buy something new”. [264] It was the thrust of Mr. Kitchen’s evidence that CO Perrin and CO Vella did not complain about their working relationship with colleagues prior to this use of force - 117 - incident. In cross-examination, he agreed that he did not witness any problems first hand. Superintendent Fitzgerald similarly testified that most of the incidents between CO Perrin or CO Vella and other staff occurred after August 31, 2011. In his words, there was little of significance before then. I note that Superintendent Fitzgerald forwarded an email to the OM Group and the Deputy Superintendent on October 20, 2011 in which he asked them to increase their tours within the Jail and to monitor activities therein, particularly when CO Perrin was working (exhibit #133). Superintendent Fitzgerald further asked that they report “any real or perceived forms of harassment, intimidation, or threats between staff members”. Additionally, he provided examples of what such conduct could include. He listed the following: inappropriate comments; failing to provide back up; not responding on the radio; not speaking with a specific staff member; unnecessary delays in opening doors, getting or returning inmates from or to a unit, or in providing breaks; and leaving a common area when another staff member enters that area. Superintendent Fitzgerald advised that he sent the email as he had started to receive complaints about how CO Perrin was being treated. [265] Superintendent Fitzgerald met with CO Vella on February 2, 2012 and with CO Perrin on March 23, 2012 concerning the difficulties they were experiencing at work. His notes of the two (2) meetings were filed as exhibits #135 and #136 respectively. In the former, he recorded the following: CO Vella told him that things were becoming too difficult at work and she was at the breaking point; CO Vella needed time off because she did not want to jeopardize her employment by responding to staff who were not treating her well; and that she was given six (6) days of sick time additional to a period - 118 - of planned vacation. In the latter exhibit, Superintendent Fitzgerald described CO Perrin as “very upset”. [266] Superintendent Fitzgerald acknowledged that, apart from CO Dean Esser and CO Derek Wilkins, no staff member was formally disciplined with respect to the complaints made by CO Perrin and CO Vella. He noted that, with respect to several of the incidents, there were different versions of the events and that there was a lack of sufficient information to support the imposition of discipline over and above verbal counselling. It was Superintendent Fitzgerald’s evidence that his efforts and ability to deal with the numerous issues raised was hindered by the operation of the COS. [267] A memorandum from the Deputy Minister to all Correctional Services Staff dated August 16, 2013 was filed as exhibit #140. The material part of the document reads: “………………………………………………………………………………………… The Code of Silence is recognized by the ministry as:  An individual or group of individuals who fail to report work related on-duty or off-duty behavior for which an OPS employee may be disciplined by the employer;  Behavior that results in and/or attempts to counsel, conceal, conspire or misrepresent on-duty or off-duty acts for which an OPS employee may be disciplined by the employer.  Any behavior that perpetuates a Code of Silence by threatening and/or reprising against individuals who report or attempt to report on-duty or off-duty violations;  Failure to act when there is an ethical and professional obligation to do so thereby compromising the integrity and reputation of the Ministry and Government of Ontario. As malicious peer pressure undermines a healthy and safe work environment, these actions and behaviours are unacceptable and will not be tolerated. - 119 - Individuals who engage in Code of Silence and reprisal-related conduct will be held accountable for their actions and will be subject to appropriate discipline, up to and including termination from employment. Applicable Ministry policies will be updated with this information. …………………………………………………………………………………………” [268] An excerpt from the Ombudsman’s Report on The Code of Silence dated June 2013 was also filed as exhibit #141. The relevant excerpts read: “………………………………………………………………………………………… 246 As the stories featured in this report show, the “code of silence” is a persistent, recurring factor in cases of excessive use of force. It is essentially an unwritten social incentive for staff to conceal information that might have negative consequences for a co- worker. As in policing, in the world of correctional services, where personal safety and security often depends on the support of other officers, the pressure to keep silent and even lie to protect colleagues can be prevailing and pernicious. As one Quebec judge recently described it, prison guards sometimes display a “sclerotic solidarity” when faced with testifying against their peers. 247 “The code” has been found to operate in institutions across the province, from small local jails to large detention centres. In a November 2010 briefing note, the Correctional Investigation and Security Unit informed the Deputy Minister, Correctional Services that the code of silence was a significant factor affecting the timely completion of its investigations. 248 Some correctional staff told us the code of silence was a thing of the past or that it has declined in significance. They said officers are no longer willing to jeopardize their own employment to protect their colleagues. One senior union official flatly denied that officers were reluctant to come forward or that there was a heightened level of loyalty leading to cover-ups. Some Ministry officials we interviewed also disputed the presence of the code in today’s corrections community. 249 In contrast, many correctional officers freely admitted to us that the instinct to remain silent and “stay solid” with co-workers continues to be an integral part of corrections culture. As one 30-year veteran officer put it: - 120 - It’s a tough thing, because in any area where you’re depending on somebody for your protection, you’re going to protect them too. And sometimes if people do things that aren’t maybe 100%, you’re still going to protect them because you need them as protection. And…you don’t want to be a rat………………….. 250 A superintendent of a large institution also told us the code continues as a “purposeful, systematic way in which correctional officers protect other correctional officers”. He said he is aware of cases where threats of death and physical violence have been made against those who told the truth in the face of the code: We have some seriously sociopathic individuals wearing blue right now who have no problem whatsoever in paying people back for breaking the blue code. …………………………………………………………………………………” [269] CO Dean Esser, CO Marshall, CO Baxter, CO Bissonnette, RN Plain, CO McMahan, CO Trumble, CO Turner, CO Charrette and CO Mitchell all gave evidence on behalf of the Union about the COS. Generally, the effect of their evidence was that the COS, as described in exhibits #140 and #141, was not operative at the Sarnia Jail at the time material to this proceeding. Such evidence is summarized below. [270] CO Dean Esser testified that the COS, as described in the above-mentioned exhibits, does not exist within the Sarnia Jail. He stated that he has never been coerced to do anything or to write something in a report. CO Esser added that he did not “feel pressure to hide stuff” and that he has never been asked to do so. It was his evidence that he would have no issue reporting a CO if he saw that person punch an inmate in the face without any provocation. He stated that he would do so even if the CO who delivered the punch was a friend. CO Esser maintained that there was no pressure within the institution to keep silent or to protect colleagues. He agreed with the - 121 - comments of some correctional staff, as documented in the Ombudsman’s Report, to the effect that the COS is a thing of the past and that officers are no longer willing to jeopardize their own employment to protect other COs. [271] In cross-examination, CO Dean Esser was asked why the term “rat” is considered serious if there is no COS at the Sarnia Jail. He replied that such term “is more of an inmate thing” and that the repercussions of calling a CO a “rat” at the Sarnia Jail would not be as serious as would be the case at other correctional facilities. CO Esser advised that he, personally, would not care about being called a “rat”. He recognized, however, that CO Perrin was upset when labelled in that fashion. [272] CO Marshall testified that he has never witnessed any conduct reflective of the COS while employed at the Sarnia Jail. He advised that he had not heard of the COS until the release of the Ombudsman’s Report in 2013. CO Marshall acknowledged that he has heard of the word “rat”, and that being labelled as such has serious consequences. [273] CO Baxter testified that the COS, as described in exhibits #140 and #141, does not exist at the Sarnia Jail. In her experience, there was no instinct to remain silent and to stay solid. She stated that she has not observed any systemic retaliation against COs who told the truth in the face of the COS. CO Baxter asserted that from 2011 till the present, COs are unwilling to put their employment at risk. She claimed that she would fully report an excessive use of force, even if it involved her closest friend at the Sarnia Jail. CO Baxter testified that, if she did so, she did not think she would face adverse consequences or be called a “rat”. CO Baxter maintained that she has not heard that word used to describe a CO in the context of the COS. - 122 - [274] CO Bissonnette, during the course of his evidence, was referred to exhibits #140 and #141. It was his evidence that the COS, as described therein, does not capture the state of affairs at the Sarnia Jail between 2011 and the present date. CO Bissonnette stated that he does not feel any pressure to keep silent in an excessive use of force scenario. He noted that, at some point prior to 2011, he was a witness in a use of force investigation. CO Bissonnette testified that CO Dave Esser was then his Union Representative, and that CO Esser advised him to honestly and truthfully answer the questions posed by the Investigator. It was his opinion that COs who respond in this manner are not the subject of retaliation. He, too, maintained that the COS is a thing of the past. CO Bissonnette further stated that he would not have an issue reporting on a CO involved in an excessive use of force, even if that person was a friend. [275] RN Plain testified that she did not know the meaning of COS. When shown the Deputy Minister’s Memorandum on the subject, she advised that she has not witnessed conduct or behavior of the type described therein. RN Plain indicated that the word “rat” is an inmate term and is used by inmates to describe the behavior of other inmates. She, nevertheless, agreed that there are serious consequences if a CO is labelled as a “rat”. [276] CO McMahan asserted that the COS does not exist at the Sarnia Jail. He testified that he has never witnessed staff conceal information and has no idea if there is pressure to keep silent in an excessive use of force situation. CO McMahan advised that he has never been involved in such an incident, either as a witness or a subject CO. He maintained that if he did witness an excessive use of force, he would not have any issue about reporting it. CO McMahan insisted that he would do so even though - 123 - the person involved could be terminated in the event excessive use of force was established. He stated that he would report every detail as he witnessed it, as he was not prepared to risk his job. CO McMahan testified that he understood he could be labelled a “rat” for doing so. I note that he stated the label is used by inmates and that he has never heard it applied to a CO, either personally or through “the rumour mill”. Lastly, CO McMahan acknowledged that he was unaware the Ombudsman, in his Report, had used the instant case as an example of the application of the COS. [277] CO Trumble testified there is no social incentive at the Sarnia Jail for staff to conceal information that might have negative consequences for a co-worker. She stated that she has never witnessed or experienced any pressure to remain silent. Similarly, she has neither witnessed nor experienced any retaliation for not doing so. CO Trumble claimed that, personally, she would not have difficulty in reporting an excessive use of force, as she would never put her job on the line for someone else. While CO Trumble has never heard the term “rat” applied to a CO, she agreed that it could be used in that manner. She understood that such term is “the most serious thing you can be called in Corrections”. [278] CO Turner testified in chief that he has never seen the COS, as described in the Ombudsman’s Report, in play at the Sarnia Jail. In cross-examination, he agreed that he was disciplined in this instance for his failure to make a full and accurate disclosure to both the Employer and Inspector McNair in respect of what occurred on August 31, 2011. CO Turner indicated that the content, or lack thereof, in his Occurrence Reports was not influenced by a fear of reprisal or retaliation. CO Turner stated that he had heard from others that CO Perrin and CO Vella were being ignored and that people - 124 - were not talking to them. He further agreed in cross-examination that he did not want to be ignored or “treated as an outcast in the institution”. [279] I note that CO Turner met with Superintendent Fitzgerald on March 1, 2012. The Superintendent’s notes of the meeting were filed as exhibit #178. He documented, inter alia, the following statement of CO Turner: “…………………………………………………………………………………… I’ve heard what Sonya and Jamie are going through. I respect them for what they did because that’s what I should have done. I didn’t want to be in Sonya and Jamie’s position. ……………………………………………………………………………………” At a later point during this meeting, CO Turner was asked if he understood what the COS was. His recorded answer was: “Amongst staff would keep UOF quiet”. [280] CO Charrette testified that she has never experienced, or seen the application of, the COS while employed at the Sarnia Jail. It was her evidence that she would report a close friend if they punched an inmate in the face without any justification. In this regard, she stated: “It’s not right to do and I won’t put my job on the line for something stupid”. CO Charrette added that she would report the person in the aforementioned situation even if it could result in her being labelled as a “rat”. She advised, however, that she has never heard the term used against another CO. [281] CO Mitchell advised that, in her experience, the COS does not exist at the Sarnia Jail. She claimed that she has not seen retaliation against anyone who elected to fully report an incident instead of remaining silent about the pertinent facts. CO Mitchell testified that she was a witness in another CISU investigation. It was her evidence that CO Dave Esser, who was her Union Representative, told her to disclose everything she - 125 - knew and to tell the truth. CO Mitchell stated that she has never heard a CO call another CO a “rat”. Indeed, it was her view that the word could not be used in that fashion, as it is one that is exclusively used between inmates. [282] Inspector McNair’s findings with respect to the operation of the COS at the Sarnia Jail were stated as follows: “The investigation has determined that the Code of Silence continues to prevail the SARJ. Several COs and an OM – all in a position of trust with special powers and authorities and all who are charged with the responsibility of protecting inmates under their care, control, custody and supervision – turned a blind eye to what occurred with inmate…at the hands of CO Esser on August 31, 2011. Their decisions and inactions from the outset enabled the collusion, code of silence, cover-up and wilful blindness to the truth while in the execution of their duty. Two COs (Perrin and Vella) eventually came forward in their initial interviews with the Ministry Inspector with a more detailed, accurate and truthful account of what they each witnessed during that incident. For their honesty however, they continue to pay a price as described earlier in this report.” (exhibit #62) [283] A substantial amount of evidence was presented by the Union’s witnesses with respect to the complaints raised by CO Perrin and CO Vella concerning their treatment by other staff at the Sarnia Jail. For reasons provided below, it is unnecessary to reproduce all of this evidence. In summary, all of the Union’s witnesses denied engaging in conduct which could be viewed as reflective of the operation of the COS. Rather, they claimed that CO Perrin and CO Vella were the ones at fault, and accused them as having acted in an inappropriate and unprofessional manner. In fact, the witnesses asserted that, in certain of the interactions, they were bullied and harassed by CO Perrin and CO Vella. The witnesses suggested that both of these COs had fabricated some of their evidence relating to the treatment received. They were also critical of CO Perrin’s work habits and the nature of her personal interactions with - 126 - colleagues. RN Plain presented evidence to suggest that CO Perrin, in one (1) instance, acted unethically and in a way that could have attracted a criminal sanction. With respect to certain of the complaints of CO Perrin and CO Vella, the Union’s witnesses did not recall the incidents or exchanges in question. They all, in substance, denied having engaged in any improper or inappropriate behavior. The following exhibits, in addition to the ones previously cited in respect of CO Perrin’s and CO Vella’s complaints, were addressed in the evidence of the Union’s witnesses: exhibits #40, #43, #44, #48, #49, #50, #53, #54, #56, #57, #58, #83, #134, #138, #163, #165, #167, #168, #169, #170, #171, #174, #175, and #176. [284] As mentioned previously, CO Dave Esser was critical of how Inspector McNair conducted the CISU investigation. Similar criticisms were advanced by CO Dean Esser, CO Turner, CO Charrette, and CO Mitchell. Their evidence on this issue is set out below. [285] CO Dean Esser testified that going into the CISU interview of December 2, 2011, he had not been advised that his October 6th conversation with CO Perrin would be discussed. I note that the notification letter to him dated October 21, 2011, which informed him that he had been identified as a subject employee, contained the following statement: “Allegations have been raised that you have interfered with this active ministry investigation by intimidating and threatening witnesses involved in that matter”. (exhibit #68). In any event, CO Esser stated his impression that the interview was more akin to an interrogation. He claimed that Inspector McNair “couldn’t care less” about anything he said. In this regard, CO Esser maintained that the Inspector cut him off and changed the subject whenever he mentioned something the Inspector did not want to - 127 - hear. He noted, in contrast, that if the information presented was something Inspector McNair wanted to hear, then the latter would “fish as much as he could”. CO Esser made the following comment as to how he perceived the interview: “In no way was Inspector McNair trying to find information about October 6th, other than to bury me”. CO Esser described the Inspector as rude and arrogant during the course of the interview. He added, however, that given his ten (10) years of experience as a CO, he did not expect “anything less”. [286] CO Esser was asked why he described his exchange with CO Perrin as a “nothing conversation” during the interview with Inspector McNair. He replied that he did so as the two (2) of them did not talk about anything, the conversation went nowhere, and no one was screaming or yelling. CO Esser observed that CO Perrin, in the past, had been emotional about a lot of things. He suggested that, as a consequence, it was not unusual for her to be crying. It was CO Esser’s evidence that his father told him to tell the truth during the interview with Inspector McNair. He stated that he followed that advice and provided a full account of everything he could recall about the October 6th conversation with CO Perrin. [287] CO Turner described Inspector McNair’s conduct during the interviews of October 21 and December 13, 2011 as “ignorant”. He testified that he was “swore at a few times” and “called a liar a ton of times”. From his perspective, the Inspector did not want to believe a word he said. It was CO Turner’s evidence that he had “pretty much shut down” after ten (10) to twenty (20) minutes of the interview, as he felt he had already lost his job. Indeed, he expressed the belief that Inspector McNair’s objective was to get him fired, rather than to gather fresh information. CO Turner stated that the - 128 - Inspector shut the recorder off during their second interview and made the following comment: “Think you are some kind of smart ass. You need to go back to the Jail and shut your fucking mouth”. He advised that this statement made him feel angry and confrontational. It was his view that Inspector McNair exhibited a “cocky attitude” throughout. [288] CO Charrette testified that she found Inspector McNair to be arrogant during her interviews of October 26 and December 13, 2011. I recorded the following comments about her perception of the Inspector and the interview process: “always trying to switch my words around”; “to trick me into saying things I wasn’t saying”; and “it wasn’t a pleasant experience”. [289] CO Mitchell described Inspector McNair as a bully and an intimidator. It was her opinion that he had an agenda beyond searching for the truth. CO Mitchell did not recall speaking about CO Dean Esser during her CISU interview. She, accordingly, took offence at Inspector McNair’s reference to her statement to support his conclusion that CO Esser “used terminology and inferences with CO Perrin during their exchange intended to, if not directly, indirectly intimidate and threaten CO Perrin into remaining silent during the CISU investigation process”. [290] In cross-examination, CO Vella testified she felt that Inspector McNair was pushing her to say that she was significantly influenced by CO Dave Esser’s first Occurrence Report. I also recorded the following exchange: Q - Did you feel that Inspector McNair had a preconceived idea of what occurred and wanted you to say what accorded with that? A - Yes - 129 - Q - Feel that way about Mr. Kitchen? A - Yes Q - Did you feel obligated to give them what they were looking for? A - I felt obligated to tell the truth and to do what was right. Q - Were you pushed to give Inspector McNair any information that wasn’t truthful and accurate? A - No [291] Superintendent Fitzgerald held Allegation Meetings with CO Dave Esser and CO Dean Esser on March 2, 2012. Superintendent Neil Neville of the EMDC was present, as was Mr. Greg McVeigh, a Union Representative. The meetings were scheduled for the purpose of giving both grievors the opportunity to respond to the allegations generated by the CISU Investigation Report. Superintendent Fitzgerald’s notes of the meetings were filed as exhibit #132. [292] Superintendent Fitzgerald concluded that nothing provided by CO Dave Esser in his meeting amounted to a reason not to issue a letter of termination. He determined that the allegations were substantiated. [293] Superintendent Fitzgerald considered that the responses offered by CO Dean Esser were, in substance, an attempt to attack the credibility of CO Perrin, rather than to address the allegations. Additionally, he viewed the responses as “scripted” and “strikingly similar” to the information provided by CO Wilkins later that same day. In Superintendent Fitzgerald’s opinion, this reduced CO Dean Esser’s credibility and caused him to assign less weight to the information provided. - 130 - [294] CO Dean Esser denied that he and CO Wilkins coordinated or scripted their responses prior to the Allegation Meetings. He agreed that he did offer reasons why CO Perrin should not be treated as a credible person. CO Esser asserted that Superintendent Fitzgerald was only looking for information to confirm his guilt. He observed that the latter had already accepted the word of “a marginal employee” and had suspended him without first speaking to him. CO Esser maintained there was nothing he could have said at the meeting that would have changed the ultimate result. In his mind, Superintendent Fitzgerald had already decided by then to terminate his employment. [295] Superintendent Fitzgerald testified that he reviewed the CISU Investigation Report, the incorporated exhibits, and the applicable legislation, policy and procedures. It was his evidence that he accepted the findings contained in the Report. In his judgment, the force used by CO Dave Esser on August 31, 2011 against inmate A was excessive. Superintendent Fitzgerald further determined that CO Esser did not fully report the details of the incident, as required; that he encouraged others to conceal what had occurred; and that he was not completely truthful during the investigative process. He concluded, ultimately, that he could not trust CO Esser to carry out his workplace duties as a CO in the manner prescribed by legislation and the Ministry’s policies and procedures. Superintendent Fitzgerald did not think this lack of trust could be ameliorated by putting CO Esser into some other position. [296] Superintendent Fitzgerald noted that CO Esser allowed misinformation to be provided which led to the inmate being charged criminally. As mentioned, the charges were subsequently withdrawn. In Superintendent Fitzgerald’s view, the Employer’s - 131 - relationship with the Local Police and the Crown Attorney’s Office was negatively impacted as a result. He further observed that CO Esser’s use of excessive force created the potential for civil litigation against the Ministry. [297] Superintendent Fitzgerald also accepted the findings of the CISU Investigation Report with respect to CO Dean Esser. He concluded that the latter attempted to intimidate CO Perrin into remaining silent and, in so doing, acted with intent to obstruct a CISU investigation. This conclusion was premised on the following information: the full CISU investigation Report and Inspector McNair’s findings therein with respect to CO Esser; the COS; the content of the exchange in issue and its effect on CO Perrin; and the evidence of what other COs observed around the time the conversation took place. Superintendent Fitzgerald testified that it would be impossible to trust an employee who was willing to continue to facilitate the COS and to make efforts to obstruct an investigation. From his perspective, CO Esser did not conduct himself in a professional or ethical manner. Superintendent Fitzgerald reiterated that the COS victimizes employees who elect to come forward. I note that, in re-examination, the Superintendent was asked about the relevance of the father-son relationship between these grievors. He responded by stating that it was not a consideration or factor in his decision to discipline either CO Dave Esser or CO Dean Esser. [298] Superintendent Fitzgerald acknowledged there were some inconsistencies in the materials that he reviewed in reaching his decision. In the final analysis, he did not find them to be material when considered in the context of the complete CISU Investigation Report. Superintendent Fitzgerald advised that he also reviewed the grievors’ - 132 - personnel files prior to issuing the letters of termination referenced at the outset of this Decision. [299] CO Dean Esser is married and has three (3) daughters and one (1) son. His wife and all of the children suffer from significant medical conditions. Both counsel agreed that I should not include the details relating to their state of health in this Decision. I note that counsel for the Employer further agreed that I could consider such evidence as a mitigating factor when deciding whether, or not, to exercise discretion in this grievor’s favour. CO Esser testified that the loss of health and welfare benefits, as a consequence of his termination, has been especially problematic for his wife. He also advised that the resulting loss to household income has created additional stress within the family. CO Esser stated that he now suffers from stress and that he requires medication in order to sleep. He noted that on one (1) occasion in early 2012, he had to go to the Emergency Room of a local Hospital, as he thought he had a heart problem. Such problem was then diagnosed as a symptom of stress. Lastly, CO Esser indicated that his stress contributes to a higher level of stress in his children. [300] As part of its closing argument, the Employer filed the following charts summarizing its view of the evidence: i) History with inmate A – Jaime Vella; Sonya Perrin; Deb Lucas; Dave Esser; Melissa Baxter; Cindy Plain; Chelsea Trumble; Charlie Turner; ii) Use of force – Escort into Healthcare; Hallway Discussion re: Area 5; Hallway- Verbal Threat; Hallway Choke; Hallway-Reasons for Choke; Hallway-Escort to Area 5; Area 5-Struggle at Door; Area 5-Entering Cell; Area 5-Officers in Cell; Area 5-First Strike; Area 5-Closed Fist Strikes; Area 5-Disengage; Injuries to inmate A; and Occurrence Reports; iii) Dean Esser and Sonya Perrin – Second Floor-Computer Room; First Floor; and Second Floor-Teacher’s Room. - 133 - [301] In its closing argument, the Union filed the following charts summarizing its view of the pertinent evidence: i) Chart #1 – Initial Entry into Hallway from Healthcare: a) Inmate A was not headed towards Area 5 when she left Healthcare; b) Inmate A was non-compliant with the orders that had been given to her to go to Area 5; ii) Chart #2 – Threat made by inmate A: iii) Chart #3 – Force Used in Hallway: a) Force Used by Jaime Vella in Hallway; b) Force Used by Dave Esser in Hallway; c) Carotid Restraint Technique and Ministry Policy; d) Dave Esser’s rationale for the force used in Hallway; e) Dave Esser’s historical use of the hold he used in the Hallway; iv) Chart #4 – Walk down Hallway towards Area 5: v) Chart #5 – Area 5: a) Perrin not in cell; b) Inmate A holding cell door open; c) Esser and Vella enter the cell; d) The kicks and inmate A “flailing”; e) The Strikes; f) Perrin’s Vocalizations; g) Allegation that Dave Esser made derogatory comment to inmate A; h) Leaving the cell; vi) Chart #6 – Occurrence Reports, Ground of Termination #4: a) Purported sharing of report, pressure to conceal/include details in OR; b) Comparison of initial ORs; vii) Chart #7 – Dean Esser, October 6, 2011 Allegation: a) Sonya Perrin entered the room in the morning when Dean Esser was already there and she started the conversation; b) Conversation in Computer Room; c) Staff Room, First Floor; d) Second Conversation on Second Floor; e) “Nothing Conversation”; - 134 - viii) Chart #8 – Flaws in CISU Investigation and Issues with Inspector McNair: a) Witness’s Views on Inspector McNair; b) Inspector McNair’s attempts to mischaracterize and downplay inmate A’s violent tendencies; ix) Chart #9 – Poisoned Workplace, Code of Silence Evidence: a) Prior issues between Sonya Perrin and staff at Sarnia Jail; b) December 21, 2011-Allegation re Steve McMahan’s “I know of six (6) people” comment; c) December 27, 2011-Steve McMahan not saying “hello” to Sonya Perrin on Christmas Day, 2011; d) January 17, 2012-Steve McMahan saying “good” that Sonya Perrin wasn’t coming to assist with an inmate; e) January 28, 2012-Melissa Baxter allegedly “snapping” at Jaime Vella; f) February, 2012-Sonya Perrin and Jennifer Mitchell Issues; g) Issues with Joel Bissonnette. [302] In reply, the Employer filed four (4) additional charts summarizing the following aspects of the evidence: i) Lack of specificity/accuracy in Union Charts #1 to #7; ii) Employer witnesses vs. Dave Esser; iii) Union Witnesses re: Code of Silence; iv) Paul Kitchen; [303] The Employer also provided a summary of the case law relied on in support of its position. In response the Union filed four (4) charts setting out the authorities relied on with respect to the following components of the case: Use of force and incident of August 31, 2011; Code of Silence; Anti-Union Animus; Dean Esser, October 6, 2011 incident. [304] All of the information and authorities referenced in the above four (4) paragraphs have been reviewed and considered at length during the preparation of this Decision. - 135 - [305] As mentioned earlier, closing argument took five (5) days to complete. Both counsel made extensive reference to the evidence presented. Given the nature of the respective arguments, I elect to refer to both the evidence relied on and the submissions in a point form format under specific subject headings. EMPLOYER ARGUMENT – CO Dave Esser [306] Inmate A The Employer accepted that inmate A was “a handful” and could, at times, be difficult to work with. It further accepted that she had been in and out of the Sarnia Jail on numerous occasions over the years. Counsel suggested that inmate A was not dissimilar to many other inmates, in the sense that very few, if any, are perfect in their interactions with correctional staff. Counsel described inmate A as vulnerable given her background and history of substance abuse. Counsel referred to the evidence of the following witnesses with respect to their knowledge of, and history with, inmate A: CO Vella, CO Perrin, OM Lucas, CO Dave Esser, CO Baxter, RN Plain, CO Trumble and CO Turner. She noted that the gist of their evidence was to the effect inmate A would be verbally combative when first admitted but would, ultimately, comply with directions given to her. Counsel observed that none of the witnesses had actually seen inmate A be physically aggressive towards staff or other inmates. By way of example, CO Dave Esser testified that he could not recall seeing her being physically aggressive or issuing a verbal threat to an inmate. Indeed, he stated the belief that inmate A had a good rapport with all staff. The Employer did not dispute the fact inmate A did not want to return to Area 5 on August 31, 2011 but, instead, wanted to go to the female range in Area 8. Counsel acknowledged that the inmate was adamant in expressing this preference. [307] Health Care Counsel submitted that inmate A’s demeanour in Healthcare is irrelevant to the issue of whether the subsequent use of force in the hallway was reasonable, authorized and justified. From her perspective, the Union’s assertion that the inmate was significantly agitated while there represented an inappropriate attempt to shift blame to the inmate. Counsel observed that CO Vella, CO Turner - 136 - and CO Charrette did not see the inmate engage in any physically disruptive, or unusual, conduct while being assessed in Healthcare. At most, they heard her vocalize her aversion to returning to Area 5. Counsel referenced the evidence of RN Plain that inmate A appeared agitated, and not calm and relaxed, while in Healthcare and that she kicked a garbage can while on the way out of the unit. Counsel argued that RN Plain’s evidence was not credible and should be ignored as an unfounded effort to exaggerate the threat posed by the inmate. She emphasized that no misconduct was issued with respect to the alleged kick to the garbage can and that such an action was not reported in any Occurrence Report. Counsel further noted RN Plain testified that she heard CO Dave Esser twice tell the inmate not to kick him. She stressed that any kicking took place in the cell of Area 5 and not in the hallway. As a consequence, I was asked to conclude that RN Plain could not have heard the alleged statements from inside the Healthcare Unit. Counsel commented that no other witness heard the words “don’t kick me young lady” said during the encounter in the hallway. In summary, she argued that RN Plain was untruthful about the inmate being physically disruptive while in Healthcare. On the Employer’s analysis, there is no evidence that inmate A acted out physically, or in a threatening manner, during her attendance in Healthcare. [308] Hallway At the outset, counsel urged me to accord significant weight to the evidence of Mr. Ireland who, as noted, was treated by both parties as an expert relating to the use of force. Counsel acknowledged some conflict in the evidence as to whether inmate A was swearing and yelling when she entered the hallway after exiting from Healthcare. She stated that it is clear, however, that the inmate was unhappy about the prospect of returning to Area 5 and that she was engaged in a debate about this with OM Cameron. From counsel’s perspective, OM Cameron was trying to diffuse the situation so that inmate A would comply with the direction to proceed to Area 5. It is the position of the Employer that CO Dave Esser improperly inserted himself into the situation and, in so doing, completely undermined OM Cameron’s efforts. Counsel agreed that the evidence supports the fact that the inmate made a threat in the hallway and that it was likely directed at CO Dave Esser. She observed that there is conflicting evidence as to what was exactly said. On her review of the evidence, CO Vella heard the inmate say, “I’ll punch you in the fucking face”; CO - 137 - Charrette heard the inmate say, “I’m going to punch you in the face”; and CO Dave Esser heard the words, I’m going to hit you”. Inmate A testified she stated, “I feel like I’m going to hit somebody”. Counsel argued that no one portrayed the inmate as having her arms raised or doing anything to indicate she was about to assault CO Esser. She maintained that, on the evidence, the threat was just verbal in nature. It is the position of the Employer that CO Dave Esser responded to the threat with a use of excessive force. More specifically, he employed a choke hold around the neck or throat area of inmate A. Counsel referenced CO Esser’s evidence that his grip was around the inmate’s collarbone. It was her submission that this conflict in the evidence is immaterial, as the grip would constitute a violation of legislation and policy regardless of whether it was by the neck, throat or collarbone. Counsel suggested that CO Esser’s assertion that he gripped the inmate around the collarbone was a self serving attempt to downplay his actions. She noted that other witnesses, including the inmate and CO Vella, placed his hand around her throat or neck area. Counsel recalled that CO Esser, himself, had spoken of a grip to the neck and/or throat of the inmate during his interview with Inspector McNair. She suggested that his reference to a grip of the collarbone was first mentioned in his evidence before the Grievance Settlement Board. Counsel mentioned the evidence of inmate A that CO Dave Esser grabbed her, put her against the wall, gripped her by the throat for between five (5) and six (6) seconds and, in the process, elevated her to “her tippy toes”. She noted that the inmate’s version of events remained consistent over time and that there were no material differences between what she told Mr. Kitchen, Inspector McNair and this Vice-Chair. It was her submission that the best evidence is that CO Esser’s hand was around the inmate’s throat and not her collarbone. Counsel reiterated that his attempt to suggest otherwise represented an effort to deflect responsibility and to minimize his actions. On the Employer’s analysis, CO Esser acted as he did in retaliation for the verbal threat received from inmate A. Counsel referenced the statement of Mr. Ireland that “threats are part of the business”. Counsel submitted that it did not matter that inmate A could still yell while CO Dave Esser’s hand was on her neck or throat area or that her blood flow may not have been restricted. In her view, the force used remained excessive and a violation of Ministry policy. She suggested that given the number of COs in the hallway, and the factors of gender and size, CO Esser should have negotiated with inmate A in an effort to diffuse the situation. Additionally, counsel argued that he should have tried other techniques under the Use of - 138 - Force Management Model such as increased verbal direction, creating a safe distance, blading himself and adopting a defensive stance. She noted, in this regard, that inmate A had no history of physical aggression while at the Sarnia Jail. Counsel added that CO Dave Esser should have let OM Cameron continue his verbal negotiations with the inmate. On her take of the situation, OM Cameron was attempting to de-escalate the impasse and to negotiate the inmate back to Area 5. Counsel maintained that if CO Esser felt he needed to inject himself into the situation, he should have followed the Use of Force Management Model and continued with the tactical negotiation skills that OM Cameron was using. She observed that OM Cameron had only been talking to the inmate for a couple of minutes. In counsel’s words, it was “not a huge stand off”. It is the position of the Employer that CO Esser was frustrated by the encounter and what the inmate had said to him and, accordingly, elected to use force in a punitive, rather than defensive, way. Counsel claimed that CO Esser’s actions in the hallway actually made him more vulnerable, as he opened himself up to a potential assault from the inmate. Counsel submitted that rules do not change simply because the inmate is difficult or challenging. She noted that COs are trained, and paid, to deal with vulnerable inmates and those in a state of crisis. Counsel stated that the job of a CO is to protect inmates and to serve as a role model for them. Ultimately, counsel argued that CO Dave Esser had other options available to him and that the use of force was not proportionate to the threat. She, therefore, viewed the force used as excessive. [309] Hallway – Escort to Area 5 Counsel referenced CO Dave Esser’s evidence that inmate A was not struggling and was “reluctantly complying” as she proceeded down the hallway towards Area 5. She further noted Mr. Ireland’s observation that the inmate was escorted without the need for leg irons or handcuffs and his opinion that the situation was starting to de-escalate. [310] Struggle at Cell Door Counsel advised that there was agreement on the fact the cell door could not be closed, the inmate was causing a ruckus inside the cell, and that she was attempting to keep the cell door open. She argued that this part of the incident was not prolonged and referenced Mr. Ireland’s evidence that time was on the COs’ side. He also testified that the COs could simply stand at the cell door - 139 - and wait until the inmate calmed down. Counsel suggested that, in the circumstances, there was no real need for CO Dave Esser and the other COs to open the door and enter the cell. She noted CO Esser’s evidence that there was “a minute tops” between when the inmate started to push on the cell door and when he elected to open the door and enter the cell. [311] Officers In The Cell Counsel noted that the evidence of CO Dave Esser and CO Vella differed as to how the inmate moved onto the bunk. CO Vella testified that a hand-on approach was used to guide her there. CO Esser, in contrast, testified that he would take a step ahead and the inmate would then step back herself so she was just out of reach. CO Esser advised that the inmate, when at the back of the cell, complied with his direction for her to sit down on the bunk. Counsel stated that this difference in the evidence may not need to be reconciled. She observed that CO Esser testified that the goal was to get the cell door closed. She questioned how that objective was advanced by walking right to the back of the cell with the inmate. Reference was also made to Mr. Ireland’s opinion that inmate A was compliant when sitting on the bunk and that the COs should have disengaged at that juncture by walking backwards out of the cell. [312] Strikes In The Cell Counsel reviewed the evidence of CO Dave Esser, CO Vella and CO Perrin relating to the nature of the strike against inmate A following her initial kick of CO Esser. CO Esser testified that it was an open handed strike to the right side of the inmate’s head. CO Vella testified that after the first kick, CO Esser struck the inmate three (3) to four (4) times with a closed fist. CO Perrin’s evidence was that CO Esser then leaned over the inmate and punched her more than twice but less than six (6) times. Counsel referenced Mr. Ireland’s evidence with respect to the nature and purpose of a distraction strike. It was the substance of her submission that the first strike was not, in fact, such a strike. Rather, it was a retaliation or response to the kick. Counsel focused on CO Dave Esser’s evidence that he punched inmate A twice with a closed fist to the right side of her head after she delivered the second kick. She juxtaposed this admission with Mr. Ireland’s evidence to the effect the Ministry does not teach closed fist techniques or punches and that, in selecting a response option, a CO must first consider the least intrusive response. In this instance, Mr. Ireland’s opinion was that, with the inmate on the - 140 - bunk, CO Esser should have disengaged and left the cell, rather than delivering two (2) closed fist strikes. Counsel argued that the presence of injuries is not determinative as to whether the force used was excessive. Counsel argued that the evidence of CO Turner and CO Charrette as to what occurred in the cell was implausible, and that little, or no, weight, should be accorded to same. She stated that, in certain respects, their evidence contradicted both the evidence of CO Dave Esser and their own Occurrence Reports. Counsel added that it was also not consistent with what they told Inspector McNair in their CISU interviews. It was her submission that CO Turner and CO Charrette were only called by the Union as witnesses to challenge CO Perrin’s evidence that she was also in Area 5 at the time of the incident. Counsel maintained that there was no reasonable explanation why CO Perrin would say she was in the Area, if she was not. More specifically, counsel argued that CO Turner’s evidence should be rejected for the following reasons: i) CO Turner testified that he stayed behind in the Healthcare Unit and, as a consequence, missed most of the incident in the hallway. It was his evidence that he exited the Unit and then saw CO Esser’s hand around the inmate’s neck. Counsel noted RN Plain’s testimony that no one stayed behind in the Healthcare Unit and that she did not recall seeing CO Turner there; ii) CO Turner testified that the cell door could not be closed as inmate A had wrapped her finger around the door. Counsel observed that no one else testified to that fact; iii) CO Turner testified that he moved about one foot (1') into the cell and that CO Vella blocked his view of the inmate and CO Esser. It was his further evidence that he saw CO Esser’s hand open and that he then delivered a strike towards the inmate. CO Turner also testified that he did not know if CO Esser’s hand was open or closed while in motion or whether it contacted the inmate. Counsel appeared to suggest that CO Turner likely saw much more than he was prepared to testified to; iv) CO Turner stated that he saw one (1) strike directed at the inmate and then turned around and walked out of the cell. Counsel suggested that such evidence “flies in the face” of what a trained CO would do if a colleague was involved in a volatile situation in a cell. From her perspective, it made no sense that - 141 - CO Turner did not try to position himself so as to better see what was occurring; v) CO Turner testified that CO Charrette was pulling on his shirt from behind and telling him to get out of the cell. This was his explanation, in part, for why he did not see contact between CO Esser and inmate A. Counsel considered it material that CO Turner, as a subject employee, never told Inspector McNair about this if it was a reason why he did not see anything; vi) CO Turner, in his initial Occurrence Report (exhibit #12), referenced a “punching motion” by the inmate towards CO Esser while they were in the cell. Counsel noted that he did not mention this movement in his evidence. Additionally, he referenced CO Esser offering a distraction to the face of inmate A. Counsel viewed it as significant that this was inconsistent with his evidence to the effect he did not actually see where CO Esser made contact. She further noted that exhibit #12 did not mention the fact that CO Charrette tugged on his shirt. This was similarly omitted from CO Turner’s second Occurrence Report (exhibit #19). The latter document stated that, “CO Esser then used the back of his right hand as a distraction technique to the face of inmate …….”; and vii) CO Turner maintained that CO Perrin was not in the cell at Area 5. He testified, however, that she submitted an Occurrence Report which stated she was in the cell. Counsel questioned why CO Perrin would submit a report documenting what she claimed to have witnessed at that location if she was not actually there. Counsel also questioned why CO Turner would not be confused about this and mention it to the Employer or to Inspector McNair. On counsel’s analysis, this assertion was only advanced by the Union after CO Perrin was implicated as a witness to the use of force and as the complainant against CO Dean Esser. Counsel argued that CO Charrette’s evidence should similarly be rejected for the following reasons: i) CO Charrette testified that after directing a threat at CO Esser in the hallway, the inmate took a step towards him. Counsel stated that no other witness mentioned this step on the part of the inmate; ii) Counsel referenced CO Charrette’s statement that she turned her whole body to face Video Court and, as a consequence, did not see CO Dave Esser’s interaction with inmate A. On CO Charrette’s evidence, when she turned back the inmate was up - 142 - against the wall and CO Esser had his arms against her upper body. She added that she could not recall if CO Esser used one (1) or two (2) arms to effect the hold. In CO Charrette’s words, the hands of CO Esser on the inmate was “a blur”. Counsel asserted that the only blur was the actual use of force and that the events before and after were not. Simply put, counsel suggested that CO Charrette likely saw much more than she was prepared to acknowledge; iii) In counsel’s submission, CO Turner “conveniently” blocked CO Charrette’s view of what occurred on the bunk. She noted that this was not mentioned in CO Charrette’s Occurrence Report (exhibit #11); iv) CO Charrette testified that she was pulling on CO Turner’s shirt. In contrast to CO Turner, however, she said that her colleague did not pay any attention, or react, to the shirt pulling. Counsel mentioned that CO Charrette did not include this pulling action in her Occurrence Report nor did she mention it to Inspector McNair in her CISU interviews; and v) Counsel submitted that CO Charrette was dishonest in her Occurrence Report when she stated the inmate “kicked and punched at staff” while in the cell. Counsel reviewed the evidence of inmate A as to what occurred in the cell. She stressed that much of the evidence was consistent with that presented by both CO Dave Esser and CO Vella. Counsel submitted that it was also consistent on the “key points” with what she had earlier communicated to Mr. Kitchen and Inspector McNair and with her Inmate Statement (exhibit #30). Counsel also reviewed how the inmate was impacted by the incident, both physically and emotionally. She stated that the inmate was hurt, devastated and shocked about being assaulted in a place where she was supposed to feel safe. Counsel asserted that CO Esser did not come close to expressing any remorse or contrition for his role in the incident. To the contrary, he claimed that the inmate’s actions justified his response. Counsel stated that CO Esser was not asked in chief about whether he fake punched inmate A and called her a “pussy” when she covered her head. Counsel argued that, as a consequence, the inmate’s evidence had to be treated as uncontradicted and unchallenged. Counsel advised that the Employer was not asserting that a CO can never punch an inmate. She submitted, however, that - 143 - punching the inmate with a closed fist was not a viable or appropriate option in this instance. On her view of the evidence, the inmate was compliant when she sat on the bunk after being directed to do so. Counsel stated that the inmate should then have been told to remain on the bunk as the COs disengaged. [313] Occurrence Reports of CO Dave Esser Counsel for the Employer reviewed the two (2) Occurrence Reports submitted by CO Dave Esser with respect to the use of force incident on August 31, 2011 (exhibit #6 and exhibit #7). It was her submission that the Occurrence Reports failed to meet the requirements of applicable policy and legislation. She referred specifically to the directions set out in the Adult Institutions Policy and Procedures (exhibit #8) and the Institutional Policy and Procedures Manual (exhibit #9). Counsel argued that there was no evidence presented to show that CO Esser was not familiar with the requirements set out therein or that he did not have the necessary time to complete the Occurrence Reports. She also noted that CO Esser advised that he was deliberately vague in his second Occurrence Report. Counsel submitted that there were significant problems with CO Esser’s Occurrence Reports. In this regard, she highlighted the following: both documents failed to report the choke hold in the hallway; exhibit #6 stated that the inmate “threw” a cup of milk at him and that he “ordered” her to go to the back of the cell; exhibit #6 simply referenced a “distraction to the face” and that it was repeated following the second kick; there was no mention of any closed fist strikes; and exhibit #7 stated that he twice struck inmate A with the back of his hand “as per Ministry training concerning a distraction”. On counsel’s reading the two (2) Occurrence Reports were purposely misleading on key points. Counsel observed that during his CISU interview, CO Dave Esser admitted to Inspector McNair that his Occurrence Reports were inadequate. She advised that Occurrence Reports are fundamentally important in the operation and administration of correctional facilities and that any misrepresentation in such documents, through either omission or dishonesty, is egregious misconduct meriting termination. Counsel noted that CO Dave Esser asserted that his responses in both the hallway and the cell were necessary and reasonable. She asked, if that was so, why did he not provide an accurate description of what occurred at both locations. Counsel further questioned why CO Esser’s Occurrence Reports were not - 144 - consistent with what he later told Inspector McNair and this Vice- Chair, if there was no issue concerning what he did to the inmate in the hallway and in the cell. It was counsel’s submission that the only reasonable explanation for the deficient Occurrence Reports was that CO Esser knew the force he used was excessive and was trying to conceal same. She added that it also reflected his “blame the victim mantra”. Counsel described exhibits #6 and #7 as vague, inaccurate, dishonest and misleading. She argued that CO Esser’s intentional attempt to conceal relevant and important information from the Employer constituted a further ground for his termination. [314] Sharing of Occurrence Reports Counsel asked that I accept the evidence of CO Vella that CO Dave Esser shared his initial Occurrence Report with her, CO Turner and CO Charrette immediately upon its completion. CO Vella testified that when CO Esser told her to read his Occurrence Report, she felt pressured to write hers in a way that would “substantiate” him. On counsel’s reading, CO Vella’s initial Occurrence Report (exhibit #16) was written with that objective in mind. She emphasized that CO Vella was afraid of reprisals from her colleagues if she failed to support CO Esser’s version of the events. CO Vella connected this concern to the presence of the COS at the Sarnia Jail. In her view, CO Esser’s intent was to intimidate her, CO Turner and CO Charrette so they would all, in substance, confirm his description of the events. Counsel submitted that CO Vella had nothing to gain from offering this evidence and commented that such evidence was consistent with what she had previously said to Inspector McNair during the CISU interview. Counsel also referenced the evidence of CO Vella to the effect that the Occurrence Reports of CO Turner and CO Charrette were also shared amongst the group. Counsel reviewed the evidence of CO Turner, CO Charrette and CO Dave Esser on this point. It was the gist of her argument that the evidence of CO Vella should be preferred. Counsel referenced CO Turner’s evidence that he did not “believe” CO Esser showed him his report. CO Turner acknowledged, however, that there was an Occurrence Report up at the Guard Station, where they all were, but he did not know whose it was. Counsel noted that, in cross-examination, CO Turner admitted that CO Esser’s Occurrence Report might have been in his hand. He insisted, though, that he never read it. Counsel further referenced - 145 - CO Turner’s statement that before writing his Occurrence Report, he did have some discussion with the other COs present and that they all later congregated together after writing their respective reports. CO Turner specifically recalled talking to CO Vella, CO Perrin and CO Charrette about his Occurrence Report. Counsel referenced CO Charrette’s evidence that she could not remember if she was shown other Occurrence Reports before she prepared her report. CO Charrette recalled seeing CO Esser’s Occurrence Report, but was unsure if she saw it on the computer or when she submitted hers. It was CO Charrette’s evidence that she did not read his Occurrence Report. She described CO Vella’s evidence as “not true”. Counsel suggested that CO Esser was somewhat ambivalent about the sharing of his Occurrence Report. She stated that, initially, CO Esser said he did not share it “to his knowledge”, but later indicated he did not recall showing the document to anyone. Counsel also referenced CO Esser’s interview with Inspector McNair in which he acknowledged the possibility that other COs could have read his Occurrence Report. In the final analysis, counsel submitted that there was no reason to doubt the evidence of CO Vella. She maintained that CO Vella was candid on this issue and readily acknowledged that she had improperly shared her Occurrence Report and read the Occurrence Reports of the other COs present. Counsel suggested that it was fair to assume that staff deferred to CO Esser, the Local Union President of long standing, and would “respect” his report. She further suggested that, by sharing his Occurrence Report, CO Esser was looking to wield his power and to have others collude over what happened on August 31, 2011. Counsel asked why CO Esser would “cover it up”, if his response to the inmate was reasonable. Put another way, she asked why he would not be confident in what others would report about the incident. Counsel’s explanation was that CO Esser shared his report in an effort to conceal the truth. She submitted that, in light of the COS, this misconduct also constituted grounds for termination. Counsel, lastly, argued that inmate A was victimized by the misreporting of CO Esser as evidenced, in part, by criminal charges being laid against her. [315] Code of Silence Counsel asked that I place significant weight on the evidence of Superintendent Fitzgerald with respect to the nature and extent of the COS and the detrimental and alarming impact it has on the - 146 - operations of both the Sarnia Jail and the Ministry as a whole. She submitted that his evidence was consistent with the description given to the COS in the relevant jurisprudence. [316] Anti-Union Animus Counsel referred to the evidence of CO Dave Esser, CO Dean Esser, CO Mitchell and Superintendent Fitzgerald with respect to the Union’s allegation that the termination of CO Dave Esser was motivated or tainted by anti-union animus given his position as the Local Union President. It was counsel’s submission that the allegation is not supported by the evidence and was raised solely to deflect blame away from CO Dave Esser. On her analysis, the evidence reflects the existence of a typical Union-Employer relationship, which at times could raise frustrations for both parties. She asserted that there is no evidence of the type of true animosity which could taint a decision to discipline. Counsel submitted that the evidence of Superintendent Fitzgerald on this issue should be considered as persuasive. She suggested that the various issues cited by the Union’s witnesses were dealt with through proper channels and were resolved. Counsel referenced the Superintendent’s statement that CO Esser’s Union activities played no role in the decision to terminate. While disagreements on issues were to be expected, Superintendent Fitzgerald did not view CO Esser as a “thorn in his side”. Counsel noted the Superintendent’s statement that his relationship with CO Esser was “professional” and that he did not view it in a negative light. It is the Employer’s position that the Union did not present any clear and cogent evidence to support the allegation of anti- Union animus in this instance. [317] Decision to Terminate CO Dave Esser Counsel submitted that CO Esser’s use of force in both the hallway and in the cell was not reasonable, authorized or justified. On her analysis, the inmate did not pose a significant threat, as suggested by the Union. Counsel asserted that CO Esser was not engaged in self defence at either location. Instead of reacting defensively, he opted for an aggressive response, which was disproportionate in all of the circumstances. Counsel stressed that there were other options available to CO Esser, and that he was not acting within policy or legislation when he held the inmate by the throat in the hallway and delivered three (3) strikes to her head in the cell. Counsel argued that force against an inmate should only be used as a last resort and that this threshold had not been reached during the incident of August 31, 2011. - 147 - Counsel suggested that CO Esser, as the Local Union President, wielded inherent power and control over his colleagues and that he engaged in a concerted and purposeful attempt to have them conceal the truth. Counsel asserted that despite inmate A’s history, she deserved to be safe. She observed that inmate A was, ultimately, “let down by the people responsible for her care”. Counsel argued that CO Esser failed throughout to properly exercise the authority entrusted to him as a CO. She stated that he lacked honesty and integrity, and that he breached policy and legislation. From her perspective, what CO Esser did on August 31, 2011 was fundamentally contrary to his obligations as a CO. She submitted that his actions on that day irreparably compromised the employment relationship. Counsel argued that the excessive use of force on an inmate constitutes a breach of trust of the highest order and a most serious offence, as it brings the administration of justice into disrepute, damages the reputation of the Ministry, and subjects it to financial liability. Counsel submitted that Superintendent Fitzgerald considered all of the available information in a careful and methodical way before making his decision to terminate this grievor. As part of the process, he assessed CO Dave Esser’s responses to the allegations. Counsel argued that the responses given did not suggest that discharge was an inappropriate sanction. She noted that CO Esser displayed no remorse or contrition and that he testified, if given another chance, he would not act differently in either the hallway or the cell. Counsel further noted that he relied on an apparent lack of injury to the inmate and that he asserted CO Perrin was not truthful in her evidence about events in the cell. Counsel observed that, ultimately, CO Perrin’s account of such events was quite similar to CO Esser’s description of same. She suggested that, in this instance, CO Esser believed rules did not apply to him or just blatantly chose to ignore them. Counsel described CO Esser’s misconduct as extremely serious and stated that it was not outweighed by his clean employment record and years of service. She mentioned Superintendent Fitzgerald’s opinion that CO Esser could not be trusted to carry out the duties of a CO as prescribed by policy and legislation. For all of these reasons counsel requested that the grievances of CO Dave Esser be dismissed and that his termination be upheld. Counsel observed that the Grievance Settlement Board has consistently upheld the dismissal of COs who have engaged in an excessive use of force. She noted that dismissals have been - 148 - upheld even in circumstances where there was no serious injury to the inmate, where the officer administered only a single strike, or where the officer did not administer the strike themselves. [318] Termination of Dean Esser Counsel acknowledged that an assessment of credibility has to be made in order to determine which version of the events of October 6, 2011 is to be preferred. At the outset, this Vice-Chair was asked to favour CO Perrin’s evidence over that presented by CO Dean Esser. Counsel argued that this was “an all or nothing analysis”, and that CO Esser’s misconduct must lead to the termination being upheld given the crippling effects of the COS on the Ministry’s operations. In counsel’s view, the imposition of some lesser penalty would not suffice, as it would suggest some condonation of the misconduct in issue. She added that such a result would also hamper the Ministry in its efforts to protect inmates under its care. Counsel stressed the importance of eradicating the COS and noted the reluctance on the part of the Union and its witnesses to concede its very existence at the Sarnia Jail. Counsel focused on the evidence presented by CO Perrin and CO Dean Esser as to what occurred in the Second Floor Computer Room, the First Floor Staff Room and the Second Floor Teacher’s Room. For the record, I note CO Esser’s statement that the last conversation occurred in an area just outside of the Video Court Room. [319] Second Floor Computer Room Conversation Counsel disputed CO Esser’s description of this exchange as a “nothing” conversation. She referenced his evidence that during this first exchange CO Perrin informed him that CO Wilkins had called her a “rat” and that she subsequently told him it was CO Wilkins who was the “rat”. Counsel further noted that, on CO Esser’s account of the events, he then told CO Perrin that she had better watch out as “rat” was not a term used lightly “around here”. Counsel submitted that such response was inconsistent with CO Esser’s statement in evidence that the COS did not exist at the Sarnia Jail. She also suggested it was unlikely that CO Esser would consider this as a meaningless discussion given that CO Perrin had accused his good friend, CO Wilkins, of being a “rat”. Counsel noted that even in CO Esser’s version of events there were two (2) topics discussed relating to the use of force incident. First, there was a discussion, initiated by CO Perrin, about people going up front to the Superintendent’s office. Second, CO Esser - 149 - mentioned to CO Perrin that he had heard someone had said to stop hitting the inmate. It was suggested by counsel that a conversation, which included these two (2) topics, could not accurately be depicted as a “nothing”. She emphasized that context was an important consideration given that the exchange between these COs took place shortly after a use of force incident and during a CISU investigation. Counsel argued that, when viewed in context, the entirety of the exchange between CO Esser and CO Perrin was well beyond a normal interaction between co- workers. On the Employer’s view of the evidence, CO Esser read CO Perrin’s Occurrence Report when she brought it up on the computer. Counsel argued that, apart from seeing that it was short, CO Esser was then able to learn of its content. Counsel referenced CO Perrin’s evidence that CO Esser told her that somebody had been going up front to speak with Superintendent Fitzgerald and that he would find out who it was. Counsel agreed that while the latter statement could be characterized as a threat, it was not a direct threat against CO Perrin. She stressed, however, that it served to promote the COS. [320] Second Floor Teacher’s Room Conversation Counsel submitted that during this latter conversation, CO Esser aggressively told CO Perrin to stick to her report; a report he already knew was shoddy. In her view, CO Esser knew, from having seen the content of the Occurrence Report, that reliance on same would keep his father, CO Dave Esser, “out of trouble”. Counsel described this as a misguided attempt by CO Dean Esser to protect his father by intimidating CO Perrin to stick to her report and remain silent. She argued that, in so doing, he was promoting and perpetuating the COS. Counsel argued that in trying to protect another CO who had abused a position of power and trust, CO Esser acted in a fashion that was fundamentally contrary to his obligations as a CO. Counsel asked that I prefer the evidence of CO Perrin, over that of CO Esser, for the following reasons: i) No evidence was presented as to why CO Perrin would fabricate a story, or cast aspersions, about CO Esser; ii) There was no evidence of a strained relationship, or of any animosity, between CO Perrin and CO Esser at the time of this incident; - 150 - iii) CO Perrin had a clear recollection of the exchanges which was not shaken by a lengthy cross-examination; iv) CO Perrin had nothing to gain by falsifying what occurred during the exchanges. Counsel noted that during cross-examination, CO Perrin responded to a question from Union counsel with the following statements: “The important thing you are missing is that I told the truth” and “I have gone through hell the last two years”; v) CO Perrin admitted that her Occurrence Report was shoddy and that she initially was not truthful in what she told Inspector McNair; and vi) CO Perrin’s version of the events is the one that satisfies the test of common sense. Counsel referred to the evidence of CO Esser that CO Perrin was not a good CO and was not credible. She considered it material that CO Esser never filed an Occurrence Report about any of the issues he raised. Counsel argued that, in any event, any performance issues CO Perrin may have had did not serve to lessen her credibility. It was counsel’s submission that the Union’s witnesses engaged in a concerted effort to attack and undermine the credibility of CO Perrin. She asserted, however, that the significant evidence about post-discharge incidents involving CO Perrin bolstered her credibility. Counsel alluded to CO Perrin’s statement that she knew she would face repercussions for telling the truth. I was urged to conclude that there was no reason to think CO Perrin would fabricate what was communicated in her conversation with CO Dean Esser, and what she observed CO Dave Esser do in the cell in Area 5, when she risked so much going forward. Counsel referred to a substantial number of post discharge incidents involving CO Perrin and CO Vella. It was her submission that these incidents evidenced the mistreatment they both suffered as a result of their decision to come forward and break the COS. [321] Family Status Counsel referred to the evidence of Superintendent Fitzgerald that the father-son relationship between the two (2) grievors was not a factor in his decision to terminate CO Dean Esser. She described the relationship between the Superintendent and CO Dean Esser as professional. She noted that Superintendent Fitzgerald approved CO Esser’s request for paid leave and provided him with a reference letter. Counsel maintained that this allegation reflected - 151 - a further attempt by the Union to blame the Employer. She argued that it also demonstrated CO Esser’s reluctance to assume any responsibility for what occurred on October 6, 2011. [322] Decision to Terminate CO Dean Esser Counsel referenced Superintendent Fitzgerald’s evidence that it would be impossible to trust an employee who was willing to facilitate the COS and to make efforts to obstruct a CISU investigation. She insisted that the Employer has to trust that COs will act professionally and ethically at all times. It was her submission that, in the circumstances, termination was the only option in this case. Counsel, accordingly, requested that the grievance of CO Dean Esser be dismissed and that his termination be upheld. [323] The Employer provided the following authorities in support of its position: Re Government of British Columbia and British Columbia Government Employees Union (1987), 27 L.A.C. (3d) 311 (Hope); OPSEU (Beltrano et al.) and Ministry of Community Safety and Correctional Services (2008), GSB Nos. 2003-3597 et al. (Petryshen); OPSEU (Zolnierczyk) and Ministry of Community Safety and Correctional Services (2011), GSB No. 2005-0823 (Herlich), R. v. Feeney, [2008] O.J. No. 4464 (Ont.C.A.); R.v. Nixon, [1991] B.C.J. No. 486 (B.C.CA.); OPSEU (Horan) and Ministry of Public Safety and Security (2002), GSB No. 0670/01 (Herlich); OPSEU (Collin) and Ministry of Community Safety and Correctional Services (2007), GSB No. 2001-1578 (Harris); OPSEU (Gillis et al.) and Ministry of Community Safety and Correctional Services (2008), GSB Nos. 2003-1520 et al. (Abramsky); OPSEU (Lavallee) and Ministry of Community Safety and Correctional Services (2011), GSB No. 2007-2778 et al. (Watters); OPSEU (Marshall et al.) and Ministry of Community Safety and Correctional Services (2013), GSB Nos. 2012-1308 et al. (Abramsky); Faryna v. Chorny, [1951] B.C.J. No. 152 (B.C.C.A); Natrel v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 462 (Beaulieu Grievance), [2005] O.L.A.A. No. 484 (Knopf); Better Beef Ltd. V. United Food and Commercial Workers International Union, Local 175 (Howard Grievance), [2006] O.L.A.A. No. 647 (Chauvin); Metro Ontario Inc. v. CAW Local 414 (Ritchie Grievance), [2011] O.L.A.A. No. 202 [Hinnegan]; Canada Post Corp. and Canadian Union of Postal Workers (Roziere Grievance), [1996] C.L.A.D. No. 120 (Chertkow); OPSEU (Adam) and Ministry - 152 - of Community Safety and Correctional Services (2005), GSB Nos. 2003-0892 et al. (Herlich); Simard v. Treasury Board (Solicitor General Canada-Correctional Service, [2003] C.P.S.S.R.B. No. 45 (Tessier); OPSEU (Jones) and Ministry of Community Safety and Correctional Services (2013), PSGB No. P-2005-3536 (Leighton) and Notice of Application to Divisional Court for Judicial Review; Fortis Energy Inc. and I.B.E.W., Local 213 (2011), 214 L.A.C. (4th) 307 (Keras); Toronto Transit Commission and ATU, Local 113 (2012), 228 L.A.C. (4th) 64 (Solomatenko); OPSEU (Weber) and Ministry of Community Safety and Correctional Services (2013), GSB No. 2011-2918 (Fisher); OPSEU (Dobroff et al.) and Ministry of the Environment (2008), GSB Nos. 2003-0905 et al. (Dissanayake); OPSEU (Daniel) and Ministry of Transportation (2010), GSB File Nos. 2008-2205 (Watters); Johnstone v. Canada (Border Services), [2014] F.C.J. No. 455 (F.C.A.); F.H.v. McDougall, [2008] S.C.J. No. 54; OPSEU (Gyapong) and Ministry of Children and Youth Services (2013), GSB No. 2010-1428 (Gray). UNION ARGUMENT – CO DAVE ESSER [324] Onus Counsel for the Union, at the outset, noted that serious allegations have been made against both CO Dave Esser and CO Dean Esser. It was his submission that the Employer, as a consequence, must show just cause for the discipline by way of clear and cogent evidence. He argued that the Employer failed to do so in this case. [325] Background of CO Dave Esser Counsel referenced the fact that CO Esser had been a CO for some twenty-five (25) years at the time of his termination. He stressed that CO Esser had never been previously disciplined for the use of excessive force or for a failure to provide an accurate Occurrence Report. [326] Inmate A Counsel observed that inmate A had a lengthy criminal record including charges for theft, assault and assaulting a Peace Officer. He suggested that six (6) prior convictions for theft established that she was a dishonest person who should not be believed. He further suggested that the convictions for assaultive behavior indicated it was more likely than not that inmate A would have - 153 - acted on her threats in the hallway. In counsel’s view, she posed a very real and dangerous threat to staff on the morning of August 31, 2011. He asserted that inmate A was not then as compliant as the Employer attempted to depict. Indeed, from his perspective, she gave no indication of being compliant in either the hallway or the cell. Counsel referenced the inmate’s OTIS Record (exhibit #72). This Vice-Chair was asked to accord little, or no, weight to the evidence of inmate A given her prior criminal record. Counsel referenced how CO Perrin, CO Vella, OM Lucas, RN Plain, CO Trumble, CO Dave Esser and Superintendent Fitzgerald described inmate A. He acknowledged that none of the witnesses had directly observed her become physically violent with staff prior to August 31, 2011. Counsel noted, however, that she was considered to be a “heavy” on the female range. He maintained that an inmate does not acquire such status by following orders and doing what they are told. On his analysis, inmate A had a propensity for violence. Counsel argued that inmate A may have had an improper motive with respect to what she told Mr. Kitchen and Inspector McNair about events in the hallway and in the cell of Area 5. Firstly, he suggested that she falsely reported an assault as retaliation for being transferred from the Sarnia Jail to EMDC. Secondly, counsel claimed that inmate A said what she did in an effort to build a case for self defence in the event she was street charged for her conduct during the incident. Counsel submitted that the above-described motivation may have carried over, and tainted, the evidence she gave in this proceeding. Counsel submitted that inmate A made a number of inconsistent statements to Mr. Kitchen, Inspector McNair and this Vice-Chair with respect to what occurred on August 31, 2011. He argued that her inability to present a consistent version of the events should serve to seriously undermine the credibility of her evidence. [327] Incident – Generally Counsel noted that the incident of August 31, 2011 occurred within a very compressed period of time and that it was instigated by the reluctance of inmate A to proceed to Area 5 as directed. Counsel observed that OM Cameron was present for the entirety of the incident and did not intervene or try to stop what CO Dave Esser was doing. Counsel argued that his failure to become involved amounted to condonation on the part of OM Cameron and led to the impression there was nothing wrong in the way CO Esser was responding to the situations presented. - 154 - [328] Health Care Assessment Counsel noted there was no dispute that inmate A did not want to return to Area 5, and stated that her reluctance to do so was evidenced even before she got to Video Court. On his view of the evidence, inmate A’s misbehavior escalated in a steady fashion between her exit from Video Court until, and including, her return to the cell in Area 5, subject to there being a somewhat calmer period during the walk down the hallway to Area 5. Counsel submitted the evidence did not bear out the suggestion that the health care assessment took place without incident. He referenced the Employer’s assertion that OM Cameron was managing the situation. Counsel observed that OM Cameron was not called to testify. He invited this Vice-Chair to draw an adverse inference that OM Cameron’s evidence would not have supported the Employer’s position. Counsel argued that the escalation in inmate A’s behavior started while she was in the Healthcare Unit. He alluded to CO Vella’s evidence that the inmate was disruptive while there and to RN Plain’s recollection that she seemed agitated from the outset. Counsel further referenced RN Plain’s evidence that inmate A kicked a garbage can over when leaving the unit. In this regard, he noted that inmate A and CO Vella both testified it was possible the garbage can was, in fact, kicked even though they did not recall such action having occurred. Counsel stated that I should accept RN Plain’s evidence that inmate A’s behavior was escalating in the wrong direction while she was being assessed. He maintained that RN Plain did not attempt to overstate or mislead about the inmate’s conduct in Healthcare. Counsel suggested, rather, that her evidence was consistent with that presented by other witnesses who said the inmate was yelling and swearing while in the unit. Counsel mentioned Mr. Ireland’s opinion to the effect the inmate was escalating while in Healthcare. Simply stated, he argued that the situation was not as manageable as suggested by the Employer. On his analysis, the inmate became angry and aggressive, and was not merely upset, during her assessment by RN Plain. It was counsel’s submission that the inmate’s escalating behavior must be considered in assessing the later responses of CO Dave Esser. [329] Hallway Counsel reiterated that inmate A was not compliant with the direction to proceed to Area 5. He noted that she could have been given a misconduct for wilfully disobeying a lawful order under Regulation 778. - 155 - Counsel maintained that inmate A was loud, verbally belligerent and was swearing while in the hallway. He stressed that she was conducting herself in this fashion even before CO Esser had any physical contact with her. He described the Employer’s assertion that the inmate was then having a “discussion” with OM Cameron as “a complete minimization of how the inmate was behaving in the hallway”. Counsel argued that CO Esser could not be faulted for electing to approach inmate A. He stated that CO Esser’s decision was supportable for the following reasons: it was busy on the second floor; a number of COs were having to focus their attention on inmate A; the inmate’s behavior was escalating instead of de- escalating; and the inmate had a history of violence. Counsel indicated that there was no evidence to establish the inmate was already on her way to Area 5 when CO Esser approached her: Counsel noted that when CO Esser approached the inmate, he said something like “lets go” and motioned with his arms toward Area 5. He considered it material that CO Esser first used a verbal direction and that he did not immediately resort to force. [330] Threat Made by Inmate A Counsel noted CO Charrette’s evidence that inmate A took a step towards CO Esser just before she said: “I’m going to punch you in the face”. He argued that CO Charrette’s credibility should not be impugned on the basis of this evidence. Counsel referenced the fact that CO Vella’s Occurrence Report of August 31, 2011 (exhibit #16) also indicated that the inmate “moved forward” after she threatened to punch CO Esser. Counsel observed that CO Esser did not testify about this type of movement by the inmate and that he did not rely on it as an explanation for the subsequent use of force. Indeed, he suggested this demonstrated that CO Esser did not try to exaggerate the inmate’s actions. Counsel submitted that the credibility of inmate A was undermined by her statements to Mr. Kitchen and Inspector McNair to the effect she saw CO Esser put on a glove before he gripped her in the hallway. In his view, she was consciously trying to exaggerate CO Esser’s actions in the hallway and to suggest that it was a premeditated use of force rather than a spur of the moment reaction. - 156 - Counsel referenced Mr. Ireland’s opinion that inmate A was engaged in “word games” in the hallway. It was his evidence that the statements, “I’m going to hit somebody” and “I’m going to hit you” both constituted a threat. Counsel stated that Superintendent Fitzgerald shared this assessment. He further referenced Mr. Ireland’s statement that COs in this type of encounter must make a split second decision and that they do not have to wait until hit before responding. Counsel argued that inmate A kept escalating and resisting, and showed little sign of compliance, in the face of an increased staff presence in the hallway. He emphasized that the presence of staff was not sufficient to contain the inmate, as evidenced by the threat she made against CO Esser. Counsel maintained that the inmate’s description of her comment was neither reliable or credible. In this regard, he contrasted her evidence on the point with that presented by CO Vella and CO Charrette. It was counsel’s submission that inmate A attempted to minimize and downplay her escalating and threatening behavior. He suggest that the threat made by the inmate undermined the Employer’s assertion that the situation was manageable. [331] CO Esser’s Response To The Threat Counsel emphasized that CO Esser took the inmate’s comment as a threat and that he felt her behavior had moved into the assaultive phase on the Use of Force Management Model. Counsel further noted that CO Esser believed that he then had the right to protect himself against an assault under both Ministry policy and the Criminal Code. Counsel referenced CO Esser’s evidence that he did not feel it appropriate to step back from the inmate for the following reasons: it would create the impression that he was afraid of her; it would give her more room to launch an assault against him; and he might lose control of the situation, as the inmate could have run to Area 8 or into Healthcare where she might have located a weapon. It was the Union’s submission that CO Esser’s concerns about backing off and giving space to the inmate should be taken as valid given the possibility of losing control of an escalating, aggressive and non- compliant inmate in an unsecured location. Counsel disputed the Employer’s assertion that there was no indication the inmate would act on the threat. In his words, there was a real and concrete possibility of that occurring at the time. [332] Force Used by CO Vella in the Hallway - 157 - Counsel noted that CO Vella had her hand on the arm of the inmate while in the hallway. He stressed that both Superintendent Fitzgerald and Inspector McNair concluded that the force she then employed was reasonable and authorized. Counsel recalled that CO Vella was not disciplined for her use of force. He argued that with respect to CO Esser the question, therefore, is not whether force was necessary but, rather, whether the degree of force used was excessive. [333] Force Used by CO Esser in the Hallway Counsel referenced CO Esser’s description of the hold he used on inmate A in the hallway and, more specifically, that he had gripped her by the collarbone with his right hand and held her at arm’s length. On his analysis, CO Esser used the least amount of force necessary to prevent an assault and to defend himself. Counsel noted that, by all accounts, the hold lasted only for about five (5) seconds. Counsel submitted that, while CO Esser may have tilted the inmate’s chin up, he did not lift her off the ground or to her tiptoes. He further submitted that CO Esser did not choke the inmate, or interrupt the flow of blood to her brain, as evidenced by her continued ability to speak and yell. Counsel observed that inmate A in her Inmate Statement (exhibit #30) and in her interview with Inspector McNair asserted that she was choked by CO Esser. She did not mention a choke in her evidence in this proceeding. This Vice-Chair was asked to conclude that this change to her story should serve to diminish her credibility. [334] Carotid Restraint Technique and Ministry Policy Counsel submitted that CO Esser did not use the CRT “or any other neck restraint designed to immobilize the inmate or interrupt the circulation of blood to the brain”. He noted that both CO Esser and Mr. Ireland thought that the word “immobilize” in the policy meant to render the recipient unconscious. He further emphasized that the latter agreed the policy could have been written in a clearer fashion and that there is no other Ministry policy expressly prohibiting other neck holds. It was counsel’s submission that the hold used should not be viewed as excessive simply because CO Esser held the inmate in the neck area or by the throat. In his view, the hold was not, in and of itself, improper and did not contravene any Ministry Policy. Counsel added that there was no evidence that CO Esser choked inmate A or that he held her in an excessively forceful manner. He argued that this analysis offered a full answer to the allegations relating to the incident in the hallway. Counsel emphasized that there was no policy that explicitly prohibited the type of hold CO Esser used in the hallway and, - 158 - therefore, no clear indication that the hold, in and of itself, would be a breach of policy giving rise to potential disciplinary consequences. Counsel also referenced Mr. Ireland’s evidence that neck and neck-area holds were not taught in training. He noted, however, that none of the training materials filed as exhibits expressly prohibit such holds and that COs were not informed during training that these types of holds could give rise to discipline, let alone termination. It was counsel’s submission that not being trained on a technique does not lead to an automatic inference that a technique is prohibited. In substance, he asserted that the Ministry policy failed to satisfy the test set out in Re Lumber and Sawmill Workers’ Union, Local 2537 and KVP Co. Ltd. (1965), 16 L.A.C. 73 (Robinson). [335] CO Esser’s Rationale For The Force Used in the Hallway Counsel submitted that CO Esser acted as he did in the hallway in order to protect himself from an assault or, put another way, to “minimize the risk to himself”. Counsel referenced CO Esser’s evidence as to why he did not push inmate A in the chest, why he did not grab her arms, and why he elected against taking her to the floor. With respect to the latter option, CO Esser considered it to be an overreaction with the potential risk for injury to both the inmate and staff. Counsel observed that Mr. Ireland advocated for the use of more excessive force when he said CO Esser could have opted to take inmate A to the floor. In contrast, he argued that CO Esser used the least force necessary to protect himself and to control the situation. Counsel added that CO Esser’s response was “done in a split second” immediately after receiving a threat from the inmate. Counsel disputed the suggestion that CO Esser became frustrated and lashed out at inmate A because of a threat made against him. On his view of the evidence, CO Esser acted defensively and not offensively. He submitted that COs should not be held to a “standard of perfection” and that there must be “some room for human error”. Counsel reiterated that OM Cameron did not intervene when CO Esser had ahold of inmate A and that his failure to do so reflected an “element of condonation”. [336] CO Esser’s Historical Use Of The Hold He Used In The Hallway Counsel referenced CO Esser’s evidence that a prior Manager had taught him the hold in question and that he had used it frequently, at times in front of other managers, over the course of his twenty- four (24) year career. Counsel submitted that given CO Esser’s historical use of the hold, and the lack of a clear policy prohibiting - 159 - same, he should not be faulted for using it as he was under the impression it was an acceptable use of force. In summary, counsel maintained that excessive force was not used by CO Esser in the hallway and that, accordingly, there were no grounds to support the imposition of any discipline for that part of the incident. [337] Walk Down Hallway Towards Area 5 Counsel noted that CO Esser and CO Vella testified they had their hands on imate A as they proceeded down the hallway to Area 5. CO Turner and CO Charrette confirmed this in their evidence. CO Esser and CO Turner stated that the inmate was swearing at the time. CO Vella described her as flailing and yelling on the walk. Counsel compared this to the evidence of CO Perrin. He stated that she testified that CO Esser and CO Vella walked inmate A down the hall without hands on and that the inmate was non-verbal. Counsel referenced the fact, inter alia, that in cross-examination CO Perrin conceded it was possible they did have hold of the inmate’s arms. CO Turner testified that he was directly behind CO Esser and CO Vella as they proceeded down the hallway. CO Charrette testified that she was directly behind CO Turner at the time. On counsel’s view of the evidence, CO Perrin testified that no one else was in the hallway when she arrived on the scene and that CO Turner and CO Charrette were not in front of her as she proceeded towards Area 5. Counsel submitted that CO Perrin’s evidence was inconsistent with that offered by all of the other witnesses. He asserted that this variance was not caused by a faulty memory, but was the product of CO Perrin’s effort to give negative evidence about both of the Essers throughout this case. Counsel maintained that CO Perrin’s evidence of events in the hallway demonstrated that she was not a credible or reliable witness. This Vice-Chair was asked to prefer the evidence of CO Turner and CO Charrette with respect to the movement of staff and the inmate to Area 5. [338] CO Perrin Not in Cell In Area 5 Counsel reviewed the evidence presented by CO Perrin, CO Vella, CO Esser, CO Turner and CO Charrette with respect to who was in the cell with inmate A. It was his submission, on the basis of this review, that CO Perrin was not, in fact, in the cell at the material time and that, as a consequence, all of her evidence about what occurred therein should be rejected and accorded no weight. - 160 - Counsel referred to this as “another strike” against CO Perrin’s credibility and the reliability of her evidence. [339] Inmate A Holding The Cell Door Open Counsel reviewed the evidence of CO Vella, CO Turner, CO Charrette, CO Esser and inmate A about the back and forth pushing on the cell door. It was his submission that the inmate’s behavior continued to escalate during this period despite the presence of three (3) COs on the other side of the door. He stressed that the inmate was not calming down or becoming compliant. Counsel disputed the inmate’s suggestion that she was too sick to put up much of a fight at the door. He maintained that this suggestion was at odds with all of the other evidence as to what occurred at the cell door. In his words, the inmate, in fact, “put up a heck of a fight”. Counsel argued that the inmate’s evidence about this component of the incident undermined her overall credibility. He added that the inmate, again, attempted to downplay her misconduct. Counsel asserted that, in all of the circumstances, it was not tenable or realistic to “wait the inmate out”. He acknowledged that CO Esser made the call to enter the cell. Counsel submitted that I should not be too critical of that decision. In this regard, he noted that neither CO Esser or CO Vella were disciplined for choosing to enter the cell. [340] CO Esser and CO Vella Enter The Cell Counsel referred to the evidence of CO Vella and CO Esser concerning the movement of the inmate to the bunk at the back of the cell. CO Vella testified that she and CO Esser put her on the bunk by way of a “hands-on” approach. CO Esser, in contrast, described a step by step progression to the back of the cell that did not involve the use of hands. Counsel argued that CO Esser’s version of what occurred inside the cell should be preferred. He further referenced CO Esser’s evidence that he did not feel he and CO Vella could back out of the cell in view of his concern inmate A would again charge at the cell door. [341] The Kicks and The Inmate “Flailing” Counsel referenced CO Vella’a evidence that CO Esser told inmate A to stop resisting when she was on the bunk. CO Vella further testified that the inmate did not comply with the orders and continued to kick out and flail with her legs. Counsel noted CO Vella’s evidence that inmate A kicked her once and CO Esser twice. - 161 - On counsel’s view of the evidence, CO Perrin attempted to downplay the inmate’s conduct in the cell and to exaggerate CO Esser’s actions. Counsel observed that CO Perrin’s evidence in this proceeding was inconsistent with what she earlier told Inspector McNair on the following points: the number of kicks delivered by inmate A; the intensity and force of the kicks; and whether the inmate was yelling and swearing while she was delivering the kicks. He described CO Perrin as having been “evasive” in her answers. Counsel, similarly, argued that inmate A attempted to minimize her conduct in the cell. He noted her evidence that she “tapped” rather than kicked CO Esser and CO Vella and that contact was made with the knee area rather than the groin. Counsel suggested that CO Vella would likely not have grabbed the inmate’s legs if the latter - was only tapping. He maintained that the inmate’s evidence was neither credible or reliable, and that her efforts to downplay her role in the incident needed to be considered when assessing the force CO Esser elected to apply. Counsel emphasized that CO Esser insisted that he was kicked twice by inmate A in the groin area. [342] The Strikes Counsel noted CO Esser’s evidence that, after the first kick from the inmate, he hit her on the side of the head with his hand partially closed and fingers curled and that, after the second kick, he immediately punched her twice. Counsel submitted that, at the time, backing away or using tactical communications were not viable options given that the inmate was being assaultive and was posing a risk of grievous bodily harm. He stressed that CO Esser did not attempt to hide the fact that he punched inmate A during his interview with Inspector McNair. Counsel further referenced CO Esser’s belief that closed fist strikes were not prohibited by Ministry policy and that he was entitled under the Criminal Code to use the level of force employed in order to stop the assault by the inmate. In this regard, counsel alluded to Mr. Ireland’s evidence that, while the Ministry does not teach closed fist punches during its training, punching an inmate could be an appropriate response in certain circumstances. Counsel also referenced CO Vella’s evidence in chief to the effect that, after being kicked, CO Esser delivered three (3) to four (4) strikes with a closed fist. He noted that, in cross-examination, CO Vella said CO Esser’s hand was open on the first attempted strike - 162 - and that it did not make contact with the inmate. CO Vella further conceded it was possible that there were kicks in between the strikes and that just three (3) punches were made by CO Esser. [343) CO Perrin’s Vocalizations Counsel observed that during her interviews with Mr. Kitchen and Inspector McNair, inmate A said that CO Perrin vocalized something after each of CO Esser’s strikes. CO Perrin denied that she did so in her evidence and CO Vella did not hear her colleague say anything or make any noises following the strikes. Counsel argued that this discrepancy served to further reduce the inmate’s credibility. [344] Allegation That CO Esser Made A Derogatory Comment To Inmate A Counsel emphasized that CO Vella, CO Perrin, CO Turner and CO Charrette all did not hear CO Esser call inmate A a “pussy” or “whimp” when they were together in the cell. This Vice-Chair was asked to find that, on the evidence, this sexist or derogatory comment was not made by CO Esser. Counsel observed that Inspector McNair did not reach a conclusion in the CISU Report pertaining to this allegation and that, in his cross-examination, the Inspector acknowledged that the allegation had not been substantiated. Counsel suggested that the discrepancy in the evidence undermined the credibility of inmate A and demonstrated her intent to exaggerate CO Esser’s actions. He also asserted that the allegation illustrated the Employer’s desire to drag CO Esser through the mud. Counsel noted that Inspector McNair failed to consider how this variance in the evidence should impact the assessment of the inmate’s overall credibility. It was his submission that this ground for termination cannot stand. [345] Leaving The Cell Counsel referenced the evidence of CO Esser, CO Turner and CO Charrette that they did not see CO Perrin in the immediate area when they exited from the cell. He argued that CO Perrin, in fact, had not been in the cell during the incident and that her evidence, to the contrary, was designed to disadvantage CO Esser. Counsel referenced CO Perrin’s evidence that she was “sick to her stomach” at what she observed in the cell and that she shook her head when she saw OM Cameron just outside the cell. Counsel noted that this sense of disgust was not mentioned in her interviews with Inspector McNair. - 163 - Counsel referred to the evidence of multiple witnesses to the effect inmate A continued to be verbally aggressive and abusive after staff left the cell and that she, in fact, then called CO Esser a “pussy”. Counsel considered it material that immediately after the incident, CO Esser wanted the inmate to be assessed by Healthcare. It was his submission that this concern was inconsistent with someone trying to cover up an excessive use of force. Counsel noted that no injuries were observed on the inmate other than a possible “goose egg” on the side of the head. He acknowledged that lack of injury is not determinative as to whether excessive force was applied. It was his submission, however, that it remained a relevant consideration. [346] Force Used By CO Esser Counsel argued that, both in the hallway and in the cell, CO Esser stopped using force once the inmate ceased her assaultive behavior. He maintained that the force used at both locations was for purposes of self defence and to stop an assault on him and others. Counsel submitted that it was CO Esser’s understanding that his responses were consistent with legislation, Ministry policies and the training received. Ultimately, it was his submission that CO Esser should not have been disciplined for what occurred in the hallway and later in the cell, as he did not apply excessive force to inmate A on August 31, 2011. Counsel stated that the threshold issue in this case is whether excessive force was used by CO Esser against inmate A and not whether the type of force used was improper or prohibited. In the alternative, counsel noted that discharge is not the only or automatic outcome where the Grievance Settlement Board makes a finding that there has been an excessive use of force. Counsel further argued that the Grievance Settlement Board authorities relied on by the Employer with respect to the use of force are distinguishable from the facts of this case. [347] Occurrence Reports of CO Esser Counsel reviewed the two (2) Occurrence Reports submitted by CO Esser relating to the incident (exhibit #6 and exhibit #7). On counsel’s reading, CO Esser did not try to hide that force was used both in the hallway and in the cell. Counsel referred to CO Esser’s assertion that his first Occurrence Report was accurate, but his second was not as he left it - 164 - deliberately vague since he believed the Employer was targeting him for this use of force. Counsel agreed that this was not an advisable course of action. However, he stated that it was important to recall all of the issues management had with CO Esser arising out of his position as Local Union President. In substance, this Vice-Chair was asked to accept that it was understandable why CO Esser would be less than complete in his second Occurrence Report. Counsel referenced the evidence of OM Lucas to the effect that, historically, the Occurrence Reports submitted by staff of the Sarnia Jail were not of high quality. He suggested that the details left out of exhibit #6 and exhibit #7 were the kinds of details CO Esser similarly omitted in his prior Occurrence Reports (exhibit #153). Counsel asserted that CO Esser did not intentionally attempt to conceal information. Rather, he simply wrote his Occurrence Reports in the manner he had always done. Counsel emphasized that any lack of detail in CO Esser’s Occurrence Reports was not carried over into the CISU investigation. From his perspective, CO Esser was forthcoming and detailed during his interview with Inspector McNair. He added that CO Esser acted in a similar fashion when testifying before this Vice-Chair. Counsel did acknowledge that some discipline less than termination was merited with respect to the way in which CO Esser worded his Occurrence Reports. [348] Purported Sharing of CO Esser’s Occurrence Report and Pressure to Conceal/Include Details in Occurrence Reports Counsel argued that this ground for termination was premised solely on the evidence of CO Vella. As mentioned, she testified that CO Esser approached her, CO Turner and CO Charrette with his completed Occurrence Report in hand and said “read this”. Counsel noted that both CO Turner and CO Charrette stated that they did not read CO Esser’s initial Occurrence Report and that he did not pressure them to write their reports in a certain way. Counsel suggested that CO Vella’s evidence was premised on her assumptions and understandings and not on objective facts. Counsel compared the initial Occurrence Reports of CO Esser, CO Vella, CO Perrin, CO Turner and CO Charrette. It was his submission, from a review of the documents, that the Occurrence Reports of the other COs did not “line-up” with the one submitted by CO Esser. - 165 - Counsel, ultimately, submitted the Employer failed to establish that CO Esser attempted to, or did in fact, coerce, pressure or influence other COs to omit details from their Occurrence Reports or to include details about the incident therein. [349] Anti-Union Animus Counsel argued that it could reasonably be inferred from the evidence that the decision of the Employer to terminate CO Esser was tainted, at least in part, by anti-Union animus. He referred to exhibits #126, #127, #128, #148 and #149 as examples of how CO Esser operated as the Local Union President. Counsel described CO Esser in that role as confrontational, assertive and insistent. He added that CO Esser forced local management to account for its actions and noted that he was not shy about going to their superiors if progress could not be made on local issues. Counsel suggested that the above-mentioned traits and tendencies were the reason why Superintendent Fitzgerald and other senior management considered CO Esser to be the source of the problem. Counsel argued that the management bias against CO Esser was reflected in Mr. Kitchen’s reaction after his interview with inmate A. More specifically, he noted that Mr. Kitchen thought his interview was “exciting” because the inmate provided information that was inconsistent with what COs had provided. In the view of counsel, Mr. Kitchen was excited because it presented the Employer with an opportunity to get rid of CO Esser, the Local Union President who had been “a thorn in management’s side for many years”. It was the submission of counsel that both Mr. Kitchen and Inspector McNair reached a premature conclusion as to what had occurred on August 31, 2011 and that this prejudgment influenced the nature of the subsequent investigation. Put a slightly different way, counsel asserted that both of these individuals formed a “gut feeling” about what had transpired on the day of the incident and that this improperly shaped and influenced the subsequent investigatory process. Counsel argued that this eagerness to prejudge led Inspector McNair to ignore several pieces of information that would have cast doubt on the evidence of inmate A and CO Perrin. [350] CO Dean Esser-Background Counsel noted that CO Dean Esser commenced his employment at the Sarnia Jail in 2001 and that he became classified in 2008. In his words, CO Esser was not a short service employee at the time - 166 - of his termination. Counsel referenced the fact that there was no discipline on this grievor’s file as of October 6, 2011. Counsel argued that CO Esser provided “compelling evidence” about his personal circumstances as well as the significant financial, medical and emotional impact the termination has had on both CO Esser personally and on his family members. This Vice- Chair was asked to consider all of this as a mitigating factor. [351] Allegation Against CO Dean Esser Counsel noted that the letter of termination did not say that CO Dean Esser knew or ought to have known his comments to CO Perrin would be perceived as a threat. Rather, it imputed an intention on his part to intimidate her into remaining silent during the CISU investigation process. It was counsel’s submission that the onus was on the Employer to prove, on clear and compelling evidence, that CO Esser intended to achieve such result. In his view, the Employer failed to meet the onus in this case. This Vice- Chair was asked to find that CO Esser had no intent on October 6, 2011 to pressure, threaten, harass, or intimidate CO Perrin. Counsel argued that CO Perrin’s lack of credibility should be taken into account when assessing what, in fact, was said in her exchanges with CO Esser. [352] Conversation In The Computer Room Counsel stressed the fact that CO Esser was already in the Computer Room when CO Perrin entered same on the morning of October 6, 2011. In his words, CO Esser did not seek her out. He further emphasized that CO Perrin was the one who started the conversation. Counsel argued that CO Esser’s version of the exchange was not seriously challenged in cross-examination. He observed that there was considerable consistency in the evidence of CO Perrin and CO Esser with respect to what was communicated in their initial conversation. He noted that there were two (2) differences between their respective accounts. First, CO Perrin asserted that CO Esser read her Occurrence Report when she brought it up on the computer, whereas CO Esser denied doing so. It was his evidence that he looked at it, saw that it was short, but did not read the contents. Second, CO Perrin maintained that CO Esser said words to the effect that he would find out who was going up front. CO Esser, in his evidence, denied making this statement. Counsel submitted that I should prefer CO Esser’s evidence wherever it conflicted with CO Perrin’s version of the events. He suggested, - 167 - however, that the factual disagreements relating to this first conversation were “almost moot”, as CO Perrin did not take much issue with it and agreed that CO Esser did not deserve to be terminated for what he said at that time. [353] Exchange In Staff Room Counsel focused on the evidence of CO Esser and CO Marshall as to what occurred in the Staff Room between CO Esser and CO Perrin. He argued that such evidence was inconsistent with the claim that CO Esser was trying to bully CO Perrin. In this regard, he noted the following: CO Esser went downstairs within a matter of minutes after learning that CO Perrin was upset; he spoke to CO Perrin in front of other staff in the Staff Room; and CO Perrin seemed receptive to CO Esser’s attempt to console her. [354] Conversation On The Second Floor On counsel’s understanding of the evidence, this discussion occurred in an open and exposed area near the Teachers’ Room on the second floor of the Sarnia Jail. He described the area as “a bit of a thoroughfare”. Counsel maintained that CO Esser did not tell CO Perrin to “stick” to her report. He noted that CO Perrin agreed that CO Esser did not follow up the comment by saying “or else”. Counsel argued, in the alternative, that even if CO Esser told CO Perrin to stick to her report, those words alone were insufficient to establish an intentional effort to intimidate or threaten his colleague. It was counsel’s submission that, if said, it amounted to a “throw away line” in order to end the conversation. Counsel added that even if CO Perrin’s evidence was preferred, CO Esser’s comments could simply be viewed as spontaneous and, at best, intemperate. He emphasized that CO Perrin agreed that CO Esser did not want to talk about what his father did in the use of force incident of August 31, 2011. Counsel suggested that CO Esser’s credibility was enhanced by the fact he acknowledged that CO Perrin was upset and crying during their exchange and that he did not attempt to downplay her demeanour. Counsel further suggested that if CO Esser was intent on intimidating and silencing CO Perrin, he likely would have done it well before October 6, 2011. He noted, on this point, that CO Dave Esser was suspended on September 11, 2011 and that CO Dean Esser and CO Perrin had worked a shift together, without any issues, approximately one (1) week prior to October 6th. - 168 - On counsel’s analysis of the situation, CO Esser did not approach CO Perrin to ensure she remained “solid”. Rather, CO Perrin approached him in an effort to defend herself against the accusation she was a “rat”. Counsel observed that CO Perrin took issue with the alleged “stick to your report” comment and that she insisted the Employer was justified in terminating CO Esser for having made the comment. Counsel highlighted the fact that CO Perrin did not mention this conversation to Inspector McNair during her first CISU interview. [355] Family Status Counsel argued that CO Dean Esser was terminated because of his relationship with his father, CO Dave Esser. On the Union’s theory of the case, the termination was a means for the Employer to exact extra retribution against CO Dave Esser for his long- standing Union involvement. If wrong, counsel asserted that the relationship still impacted the decision to terminate CO Dean Esser. He referenced Superintendent Fitzgerald’s statement that he felt CO Dean Esser engaged in a misguided attempt to protect his father. On counsel’s reading of the jurisprudence, a familial relationship does not have to be the sole, or predominant, reason for the adverse treatment. He argued that the decision to impose discipline should be vitiated if such relationship played any part in the ultimate termination. Counsel stated that, in this instance, the Employer’s decision to terminate should be undone and that both of the Essers were entitled to damages for breach of the family status protection provided in the Ontario Human Rights Code. [356] Differential Disciplinary Treatment Counsel referred to the evidence led by the Employer to show that other COs at the Sarnia Jail utilized the COS against both CO Perrin and CO Vella. He emphasized that none of these COs were disciplined and that in one (1) instance, the alleged swerving of the Ministry van towards CO Perrin’s vehicle, the conduct was more serious than what occurred on October 6, 2011. Counsel noted that, in that situation, an Occurrence Report was filed by another CO which gave some credence to CO Perrin’s complaint. He reiterated that there were no other witnesses to the October 6th exchanges between CO Perrin and CO Esser. It was his submission that, in the circumstances, there was no reason for CO Esser to be terminated when the other COs were not disciplined for conduct arguably connected to the COS. [357] Flaws In The CISU Investigation and Issues With Inspector McNair - 169 - Counsel argued that the investigatory process conducted by Inspector McNair was deeply flawed. He suggested that, but for the flaws, this entire proceeding before the Grievance Settlement Board could have been avoided or, at least, significantly narrowed in scope. Counsel submitted that the flaws in the investigation cannot be cured simply through the conduct of this hearing. He maintained that there must be some consequence for the way Inspector McNair ran the investigation and for his treatment of witnesses who were called to testify therein. Counsel stated that Inspector McNair’s improper and unprofessional conduct of the investigation cried out for a remedy in the form of damages. On counsel’s analysis, Inspector McNair had a bias from the outset. He asserted, in this regard, that the Inspector reached a conclusion at the start of the investigation and worked from there to craft the evidence against both CO Dave Esser and CO Dean Esser. Put another way, counsel claimed that Inspector McNair prejudged the case and targeted the Essers. Counsel stated that Inspector McNair’s evidence in this proceeding was evasive, selective and neither credible or reliable. Counsel voiced the following complaints concerning Inspector McNair’s conduct during the investigation: i) Inspector McNair, together with Superintendent Fitzgerald, made efforts with the Crown Attorney to get the charges against inmate A dropped in order to bolster their case against CO Dave Esser; ii) Inspector McNair conceded in cross-examination that he did not disclose to the Crown that the inmate admitted to kicking CO Dave Esser and CO Vella during her interview with Mr. Kitchen; iii) Inspector McNair had a bias towards certain witnesses, such as CO Perrin and CO Vella, who he referred to as “my witnesses” in his interviews. Counsel suggested that the Inspector treated the Union’s witnesses in this case differently and less favourably; iv) Counsel referred to the evidence of CO Mitchell, CO Charrette, CO Turner, CO Dave Esser and CO Dean Esser relating to their perceptions of how Inspector McNair conducted himself during their interviews. He noted they felt the Inspector had an agenda and that he tried to get them to - 170 - say what he wanted them to say, put words in their mouths, was unduly aggressive, and bullied and intimidated them; v) Counsel argued that Inspector McNair attempted to mischaracterize and downplay the inmate’s violent tendencies and that he “blindly accepted” whatever she had to say. From his perspective, Inspector McNair did not challenge or cross- examine inmate A, as he did with the other witnesses. Counsel asserted that Inspector McNair tried to paint the inmate as someone who was verbally resistant but always ultimately followed any directions given. He accused the Inspector of trying to lead others to that same conclusion; vi) Counsel noted Inspector McNair’s evidence that what inmate A told him during his interview with her was consistent with what she had previously communicated to Mr. Kitchen. He suggested that, to the contrary, there were a number of inconsistencies between the two (2) interviews. Counsel referenced the fact that, in cross-examination, Inspector McNair conceded inmate A was changing her story. He mentioned her use of the word “tap” versus the word “kick” to describe what she did in the cell. The Inspector further agreed that this could be indicative of the inmate trying to play down her actions. Counsel viewed it as significant that this change was not mentioned in Inspector McNair’s Investigation Report; and vii) Counsel referenced an Occurrence Report that RN Plain forwarded to Superintendent Fitzgerald on November 10, 2011 (exhibit #83). Inspector McNair received a copy of same from the Superintendent on November 16, 2011. RN Plain, in the aforementioned Occurrence Report, documented her recollection of a conversation she had with CO Perrin in the Healthcare Unit on or about October 9, 2011. RN Plain reported that at that time CO Perrin told her CO Wilkins had come into the unit and called her a “rat”. She further documented that CO Perrin stated, in effect, that she would take steps to undermine CO Wilkins with respect to both his current employment with the Ministry and any prospective employment with the local Police. Counsel considered it material that Inspector McNair never raised this issue with CO Perrin in her second interview and that he left any mention of it out of his final report. In counsel’s words, this was a “huge omission”, particularly so as Inspector McNair acknowledged that he did have some concerns about CO Perrin’s motivations. - 171 - [358] Poisoned Workplace, Code of Silence Evidence Counsel submitted that CO Perrin’s and CO Vella’s evidence about their treatment by other COs after the incident of August 31, 2011 was not connected to the operation of the COS and, instead, reflected interpersonal issues and problems these two (2) COs had with other staff at the Sarnia Jail. On his analysis, the Employer here attempted to manipulate these interpersonal issues in order to bolster and promote its case. He suggested that CO Perrin and CO Vella were protected by management, whereas CO Dean Esser was subjected to differential treatment vis a vis discipline. Counsel stressed that the Union’s witnesses testified they would not enforce the COS, keep silent, or threaten or bully others to keep silent, as they knew it could jeopardize their continued employment. He further noted their evidence that they had no direct knowledge of CO Perrin and/or CO Vella being harassed, bullied, or excluded in the workplace. Counsel asserted that there was no reason for the Union’s witnesses to lie or to disparage CO Perrin and CO Vella. He suggested, however, that these latter two (2) COs had a motive to fabricate evidence as they did not want either of the grievors to return to employment at the Sarnia Jail. In his words, CO Perrin and CO Vella had more “invested in the case” than did the witnesses called on behalf of the Union. Counsel, lastly, highlighted that CO Perrin and CO Vella had filed grievances complaining about a poisoned work environment. He suggested that they would not want to undermine these grievances through their evidence. This Vice-Chair was invited to conclude that the Union’s witnesses were more reliable. Counsel reviewed the evidence of CO Bissonnette, CO McMahan, RN Plain, CO Dean Esser, CO Mitchell, CO Baxter, CO Trumble and CO Marshall with respect to this component of the case. [359] Decision To Terminate CO Dean Esser It is the Union’s position that the Employer did not satisfy the onus of establishing just cause for the termination of CO Dean Esser. Indeed, counsel argued that no case was made for the imposition of any discipline with respect to this grievor. He asked that this Vice-Chair prefer the evidence of CO Dean Esser over that presented by CO Perrin. Counsel, in the alternative, submitted that even if I favoured the evidence of the latter, termination was too harsh a sanction. He asserted that the reinstatement of CO Dean Esser would not handcuff the Employer’s ability to confront the COS. Counsel suggested that not every case grounded on the COS must lead to automatic termination of the employee. He noted that in several of the authorities relied on, grievors were - 172 - reinstated notwithstanding that their comments and threats were of a more serious nature than in this case. [360] Remedy Sought Counsel asked that the following remedies be awarded: i) The terminations of CO Dave Esser and CO Dean Esser be set aside; ii) CO Dave Esser and CO Dean Esser be reinstated together with full back pay with interest, including all benefits (with pension by-back and an income gross-up if appropriate) and with no loss of seniority; iii) An order for general damages for both CO Dave Esser and CO Dean Esser for discrimination on the basis of family status, as well as damages for both grievors as a result of how Inspector McNair conducted the CISU investigation; and iv) Such other remedies as this Vice-Chair deemed appropriate. [361] The above remedial request was subject to an earlier Interim Decision issued in this matter, as a consequence of which this hearing was bifurcated. More specifically, this Vice-Chair determined that post-termination evidence relating to remedy would be heard after a determination as to whether the Employer had just cause to terminate the employment of CO Dave Esser and CO Dean Esser. It was then my understanding that the Employer wished to rely on post-termination evidence, in the event either grievor was reinstated, in aid of an argument that damages should be awarded in lieu of reinstatement, or that any reinstatement should be to another position or institution. [362] During the course of closing argument, both counsel agreed to the following process: this Vice-Chair would first determine if the terminations were to be upheld; if the answer to that question was no for one or both grievors, I would state that result; and the issues of the appropriate remedy (including, if applicable, what lesser penalty should be substituted for the termination(s), damages in lieu of reinstatement, and - 173 - whether reinstatement should be to another location would all be deferred to the second phase of the hearing. [363] The Union provided the following authorities in support of its position: OPSEU (Rate) and Ministry of the Solicitor General and Correctional Services (1997), GSB No. 706-96 (McKechnie); OPSEU (Gallina) and Ministry of Children and Youth Services (2011), GSB No. 2009-2825 (Fisher); Alberta (Department of Children and Youth Services) v. Alberta Union of Provincial Employees (Williams) (2009), 185 L.A.C. (4th) 176 (Sims); Providence Care v. OPSEU (Savage) (2009), 189 L.A.C. (4th) 385 (Brown); Saskatchewan Joint Board, Retail, Wholesale and Department Store Union (Birch) v. McKesson Canada Corp. (2010), 192 L.A.C. (4th) 161 (Hood); Loblaws Supermarkets Ltd. v. United Food and Commercial Workers, Local 1000 A (Strong) (2013), 231 L.A.C. (4th) 66 (Solomatenko); City of Ottawa v. Ottawa-Carleton Public Employees Union (C.U.P.E.), Local 503 (Johnson) (2007), 164 L.A.C. (4th) 263 (Jamieson); OPSEU (White) and Ministry of Community and Social Services (1998), GSB No. 0810-95 (Dissanayake); Toronto Police Services Board v. Toronto Police Association (TR Grievance) (2011), 210 L.A.C. (4th) 95 (Shime); OPSEU (Grifferty) and Ministry of Government Services (2012), GSB No. 2010-2240 (Devins); Horizon Operations (Canada) Ltd. v. Communications, Energy and Paperworkers Union, Local 2000 (Jaeger) (2000), 93 L.A.C. (4th) 47 (Coleman); The Globe and Mail Division of Canadian Newspapers Company Limited, [1982] OLRB Rep. February 189; Communications, Energy and Paperworkers Union of Canada, Local 1178 (Scott) v. Hood Packaging Corp. (2013), 233 L.A.C. (4th) 53 (Trachuk); Toronto District School Board v. Elementary Teachers’ Federation of Ontario (Todd) (2008), 173 L.A.C. (4th) 425 (Raymond); Sears Canada Inc. v. International Brotherhood of Electrical Workers, Local 213 (Abolis) - 174 - (2008), 173 L.A.C. (4th) 209 (Love); Howe Sound Pulp and Paper Corp. v. Communications, Energy and Paperworkers Union of Canada, Local 1119 (Widsten) (2013), 230 L.A.C. (4th) 1 (Holden); A.v.B. (2002), (subnom. B.v.Ontario (Human Rights Commission), [2002] 3 S.C.R. 403; A.v.B., 1996 Carswell Ont. 5217, 28 C.C.E.L. (2d) 117, 30 C.H.R.R. D/246 (Ont.Bd.of Inq.); Brown v. Royal Canadian Mounted Police 2004 Carswell Nat. 503, 2004 CHRT5. 35 C.C.E.L. (3d) 129, 51 C.H.R.R. D/139; Re Otis Canada Inc. and International Union of Elevator Constructors, Local 50 (2004), 135 L.A.C. (4th) 193 (Rowan); Maple Leaf Poultry and United Food and Commercial Workers International Union, Local 175 (Cunha), [1998] O.L.A.A. No. 62 (Barrett); Medicine Hat News and Print Media Union of Alberta, No. 33 (1994), 43 L.A.C. (4th) 110 (McFetridge); University College of the Cariboo v. Canadian Union of Public Employees Local 900 (Lyons) (2002), 113 L.A.C. (4th) 58 (Keras); St. Joseph’s Continuing Care Centre v. Canadian Union of Public Employees, Local 2717 (Laird) (2009), 183 L.A.C. (4th) 362 (Starkman); Royal Ottawa Health Care Group v. Canadian Union of Public Employees, Local 942 (Kolber) (2005), 139 L.A.C. (4th) 397 (Swan). [364] In reply, counsel for the Employer cautioned this Vice-Chair against relying on the summary of evidence provided by the Union. She submitted that the Union’s charts, in numerous instances, lacked the specificity and accuracy required for them to be treated as reliable summaries of the evidence presented. [365] Counsel for the Employer referenced the Union’s position that the Employer’s witnesses had motivation to lie and that this should be “kept in mind” when assessing the evidence. It was her submission that the Union failed to establish any motivation for - 175 - the Employer’s witnesses to fabricate their evidence. In this regard, counsel argued as follows: i) It was completely reasonable for inmate A to be concerned about having to defend against a street charge of assault. This concern was not indicative of how truthful the inmate was about the allegations against CO Dave Esser; ii) The fact inmate A testified that she was unhappy about being transferred to EMDC did not support the Union’s assertion that she harboured resentment against CO Esser; iii) CO Perrin’s and CO Vella’s reasons for not wanting the Essers back at work involved COS incidents and issues which occurred after they were truthful about the use of force. There was no evidence to support the theory that their desire to not have them return pre-dated their CISU interviews; iv) Counsel noted that CO Perrin testified that she lied during her first CISU interview because she wanted to protect CO Dave Esser. On her analysis, there was nothing to suggest that things changed for CO Perrin between her first and second interview to the extent she would lie and fabricate allegations against CO Esser in the second interview; and v) There was no evidence presented to establish that CO Vella and CO Perrin testified as they did in order to not undermine their grievances concerning an allegation of a poisoned work environment. [366] Counsel compared the evidence of CO Dave Esser against that presented by inmate A, CO Vella and CO Perrin with respect to what occurred in the hallway and in the cell of Area 5. She submitted that the evidence of the Employer witnesses was substantially consistent with that given by CO Esser. [367] The balance of counsel’s reply argument is set out below under the applicable headings. [368] CISU Investigation - 176 - The subjective opinion of Union witnesses about how they felt during their CISU interviews cannot be the basis of a damage award to the grievors. Witnesses and subject employees should expect difficult and challenging questions from an Inspector. Counsel stated that a CISU investigation about a use of force situation is, by definition, an unpleasant and stressful exercise. She maintained that, in this instance, Inspector McNair did not cross the line. Counsel acknowledged that some of Inspector McNair’s questions and emails might be viewed as aggressive and/or unprofessional. It was her submission, however, that there was no direct evidence of any actual impropriety on his part. She described the investigation conducted by Inspector McNair as “thorough” and maintained that any flaws therein were cured by this lengthy arbitration process. [369] Use of Force Counsel argued that this case should not turn on discrepancies such as the following: whether the inmate said the hold in the hallway was a grip or a choke; whether she was lifted off her feet or to her tiptoes; or whether she tapped or kicked CO Esser. Rather, the threshold issue common to the events at both locations is whether force was required and, if so, whether the actual degree of force used was excessive. In counsel’s view, CO Esser did not work towards de-escalating a vulnerable inmate. Instead, he elected to grab the inmate’s neck in the hallway and to deliver closed fist strikes in the cell, all contrary to legislation and Ministry policy. From the Employer’s perspective, the events of August 31, 2011 did not require the resort to force. If, in the alternative, it did, the force used was excessive, unreasonable and disproportionate to any existing risk. [370] Inmate A In counsel’s view, inmate A acknowledged her prior history, owned up to her lengthy criminal record, and was honest, rather than evasive, in her evidence. She suggested that it would create a dangerous precedent to automatically assume an inmate’s credibility is tarnished by what they may have done outside of the institution. Counsel argued that the Union’s suggestion that inmate A’s behavior was escalating was an exaggerated attempt to “paint the victim as the perpetrator”. She referenced the evidence to the - 177 - effect OM Cameron was dealing with the situation and was attempting to keep the inmate from escalating. Counsel noted that the inmate, at the time of the incident, was not well and was coming down off street drugs. She also referenced the lack of any solid evidence that inmate A had ever been physically aggressive or violent in the past while at the Sarnia Jail. Counsel argued that this Vice-Chair should not rely on the Union’s hearsay evidence relating to the inmate being a “heavy” on her unit. She referenced Mr. Ireland’s opinion that even if the inmate did have that status, it would only have effect on the range when dealing with other inmates. Counsel suggested that the Union magnified the inmate’s negative qualities in order to shift blame away from CO Esser. Counsel argued that it would be wrong to treat inmate A’s prior record as tantamount to similar fact evidence and to conclude therefrom that she would have acted on her threat in the hallway and that she posed a real and dangerous threat in the cell. Counsel stated that the inmate’s evidence should be assessed on the basis it was presented by an untrained and unsophisticated person. [371] Code of Silence Counsel stated that the COS can operate in a multitude of ways in that its manifestation can range from an overt death threat to something much more subtle. She observed that, in this instance, the COS was applied in a more subtle way than was the case in many of the authorities relied on. Counsel noted, nonetheless, the significant emotional impact its operation had on both CO Perrin and CO Vella. She contested the Union’s assertion that most of the incidents and exchanges occurred because of personal issues between these two (2) COs and certain of their colleagues. Counsel stressed that the vast majority of the issues cited were never raised by the Union’s witnesses until they gave their evidence in this proceeding. She argued that the various issues were brought forward at that juncture as a concerted effort to taint CO Perrin’s credibility and to “paint her in a negative light”. Counsel referenced the fact the Union’s witnesses all stated that the COS did not exist at the Sarnia Jail. She reviewed the evidence of CO Dean Esser, CO Marshall, CO Baxter, CO Bissonnette, RN Plain, CO McMahan and CO Mitchell on this point. It was her submission that, while these witnesses did not expressly admit to the COS, their evidence was still supportive of its existence. - 178 - Counsel argued that CO Turner and CO Charrette were motivated by the COS to not report everything they witnessed on August 31, 2011 in both the hallway and cell. She noted that CO Charrette had to be compelled by this Vice-Chair to testify and suggested that the evidence she subsequently gave was evasive in nature. From her perspective, CO Turner essentially testified that he did not witness much of either incident. Counsel maintained that if the COS did not exist at the Sarnia Jail, there was no logical reason or explanation as to why everyone, including CO Turner and CO Charrette, was not honest about reporting what occurred right from the start. [372] Use of Force Counsel argued that the fact CO Vella used force against inmate A did not mean CO Dave Esser was required to use the force he did in both the hallway and cell. In her view, CO Esser created a situation where force was required from CO Vella by injecting himself into an exchange between inmate A and OM Cameron in the hallway and escalating it to a higher level of concern. Counsel noted that CO Vella’s involvement only occurred after CO Esser put his hands on the inmate’s throat. At that point, CO Vella took hold of the inmate’s arm. Similarly, counsel noted that CO Vella had hold of the inmate’s legs while in the cell. In her view, that was not the application of excessive force and did not justify CO Esser’s decision to punch the inmate on the side of the head. Counsel submitted that such force was not required as CO Esser should not have entered the cell in the first place. She referred to the other options Mr. Ireland outlined in his evidence. [373] Neck/Throat Hold of Inmate A Counsel submitted that this case does not turn on the fact the prohibition against neck holds may not be perfectly clear. Rather, the material issue is whether force was required and, if so, whether the force used was authorized, reasonable and justified. Counsel referred to Mr. Ireland’s statement that the “choke” technique resorted to by CO Esser flew in the face of the training provided to COs, and that the placement of his hand around the inmate’s neck in response to a verbal threat made it excessive. She argued that such force was not authorized, reasonable and justified because it was disproportionate to any threat which CO Esser might have faced at the time. Counsel agreed that there was a threat, but asserted CO Esser was duty bound to use other available options to address it. She reiterated that the conduct of inmate A did not escalate while in the Healthcare Unit and that OM Cameron was dealing with the situation out in the hallway prior to CO Esser’s decision to get involved. - 179 - Counsel noted the Union’s reliance on the line of cases following the KVP approach and the Union’s position that CO Esser should not have been disciplined in the absence of an express and clear prohibition against both neck holds and punches. On her analysis, what matters in this case is the Use of Force Management Model. She suggested that the Employer does not need to have an enumerated list of permitted or prohibited responses. Counsel argued that it would be ridiculous to say that a particular use of force technique is permitted simply because there is no express prohibition about using same. By way of example, she argued that water-boarding or suffocating an inmate would be permitted on the basis of such logic. [374] Cell In Area 5 Counsel submitted that the Union did not present any evidence to explain why CO Esser and the other COs did not wait it out for longer than they did before choosing to enter the cell. She observed that the inmate was “grossly outnumbered”. Counsel further suggested that no reasonable explanation was presented for why the COs could not exit the cell, once in. She also noted that the panic button outside the door to Area 5 was never pressed. Counsel referenced Mr. Ireland’s evidence that the only permitted distraction strike is one delivered with an open hand. She repeated that CO Esser’s use of closed fist strikes was not authorized, reasonable and justified. [375] Reporting By CO Dave Esser Counsel suggested that if the inmate had not communicated the information about what occurred on August 31, 2011, there is a significant risk that this use of force incident would never have been accurately reported. She questioned why CO Esser would submit misleading and inaccurate Occurrence Reports if he did not do anything wrong. Counsel argued that, in this instance, CO Esser breached policy and legislation when he elected to word exhibit #6 and exhibit #7 as he did. [376] CO Dean Esser Counsel argued that the conversation between CO Perrin and CO Esser on October 6, 2011 must be viewed through the lens of the COS. She acknowledged that CO Perrin was not physically threatened and that what was said was subtle and less serious in nature than in some of the other authorities relied on. Counsel asserted that the comments of CO Esser must be interpreted in the - 180 - context of the COS. In her view, correctional facilities are different from the shop floor of an industrial plant. She submitted, in this regard, that a seemingly innocuous statement can easily be viewed as a valid threat in the former type of facility. Counsel suggested that, here, CO Perrin would know the repercussions of not sticking to her report. She stated that because of the operation of the COS, an overt threat did not have to be made for CO Esser to make his point, as a subtle threat would be fully understood. Counsel insisted that the Employer must be able to terminate for the type of threat made in order to eradicate the COS. She lastly argued that no credible reason was offered for why CO Perrin would lie about her exchanges with CO Esser on the day in question. Counsel referred to the Union’s argument that CO Esser was treated differently from other COs who were not disciplined for COS incidents involving CO Perrin and CO Vella. She argued, in response, that the concept of differential treatment applies only to incidents management is aware of at the time discipline is imposed. Counsel noted that, in this instance, the Employer had no knowledge of these other incidents as of the time CO Esser was terminated, as they had not yet occurred. She submitted that the Employer’s ability to discipline in these later incidents was hampered by the operation of the COS. [377] Anti-Union Animus Counsel referenced Superintendent Fitzgerald’s evidence that CO Dave Esser was not “a thorn in his side”. She noted his statement that, while CO Esser might irritate him at times, it was part of the job when having to work with a Local Union President. On counsel’s assessment, the Union’s “best case” is that Superintendent Fitzgerald may have viewed CO Esser as problematic. In her submission, given the use of force incident, it would be a huge leap to suggest CO Esser was targeted or treated differently from any other employee facing a similar allegation. Counsel asserted that the Employer “did not concoct the allegations out of thin air” in order to get rid of CO Dave Esser. She ultimately argued that insufficient evidence was presented to establish the presence of any anti-union animus. Counsel also referenced the role played by Mr. Kitchen in the initial internal investigation of the use of force incident and the Union’s criticism of same. Counsel stated that Mr. Kitchen had a strong foundation for initially believing that the incidents did not transpire as reported on August 31, 2011. She noted that his “gut feeling” was reaffirmed, in part, because of the discrepancies and inconsistencies in the Occurrence Reports received. She further noted that Mr. Kitchen solicited Addendum Occurrence Reports to - 181 - try “to get the required information”. Counsel reviewed the evidence of Mr. Kitchen with respect to his views about the reports submitted by CO Dave Esser, CO Charrette, CO Turner, CO Perrin, OM Cameron, CO Vella and about his interview with inmate A. Counsel noted that Mr. Kitchen wanted Superintendent Fitzgerald to stay at the Sarnia Jail following the interview with inmate A because of the seriousness of what he uncovered during the interview. More specifically, Mr. Kitchen learned for the first time about the grip of the inmate’s neck in the hallway and that she had been punched multiple times in the cell. The Employer had not been previously advised of the former and had only been told about the two (2) distraction strikes delivered by CO Esser with the back of his hand. Counsel noted that what Mr. Kitchen learned from the inmate substantiated his initial feeling that, rather than being delivered as a distraction technique, the strikes were used as retaliation for CO Esser having been kicked. Counsel stated that Mr. Kitchen used the word “excited” during his CISU interview with Inspector McNair because there was “an adrenaline kick of sorts”. It was her submission that no evidence was presented to support an argument that he was excited because there was an opportunity to get rid of CO Esser. This Vice-Chair, in substance, was asked to conclude that Mr. Kitchen was excited after the interview with inmate A because she confirmed his initial impressions of what occurred in the cell and because she provided new information of the encounter in the hallway. On counsel’s analysis, there was no evidence to support the Union’s view that Mr. Kitchen was involved in local union issues on behalf of management or that he held any animosity towards CO Esser. She recalled that Mr. Kitchen was not asked any questions, either in direct or cross-examination, about his relationship with CO Esser or how his view of CO Esser’s union involvement impacted his handling of the use of force incident. [378] Family Status Counsel submitted that the Union’s claim under this heading falls away entirely unless this Vice-Chair finds that the Employer was motivated by anti-union animus when it moved to discipline CO Dave Esser. On her analysis, if anti-union animus was absent, there would be no reason for the Employer to target CO Dean Esser. In the alternative, counsel argued that, even if there was some element of anti-union animus, clear and cogent evidence must be presented to support a finding of family status discrimination. Counsel asserted that the only evidence here is that CO Dean Esser and CO Dave Esser are related. In her view, familial relationship alone is an insufficient basis for a finding of discrimination. She further referenced Superintendent Fitzgerald’s - 182 - statement that CO Dean Esser’s relationship to CO Dave Esser had no impact on his decision to terminate the former. [379] Counsel filed the following additional authorities in reply: R. v. Oickle, [2000] S.C.J. No. 38; R. v. Corbett, [1988] S.C.J. No. 40; and Toronto Transit Commission v. Amalgamated Transit Union, Local 113 (Tollefson), [1999] O.L.A.A. No. 954 (Brunner). [380] A substantial number of decisions of the Grievance Settlement Board have addressed the existence and effect of the COS in correctional facilities within the Province of Ontario. In Beltrano et al., Vice-Chair Petryshen commented as follows with respect to the COS: “As the summary of the evidence discloses and as a number of decisions have referenced, there is a code of silence in correctional institutions which places considerable pressure on a CO to refrain from disclosing the misconduct of fellow officers to management. In a setting where COs rely on each other to a considerable degree for safety, it is perhaps not entirely surprising that the code of silence is a part of the reality of a correctional facility. Another aspect of this reality is that a CO who breaches this unwritten rule is likely to face serious adverse consequences. The code of silence operates to protect COs who engage in misconduct and to some extent it condones and encourages misconduct. The code of silence also operates to turn those COs who elect not to remain silent into victims. They will likely be labelled a ‘rat’ and generally ostracized. They will often be harassed in various ways, inside and outside of their institution. They may find that the only way to address the stress associated with being labelled a “rat” is to change institutions or give up correctional duties.” (page 60-61) [381] Vice-Chair Abramsky made similar observations in Gillis et al. She there stated: “In the background is the code of silence-a code which compels Correctional Officers to remain silent about the actions of colleagues, or face serious repercussions in the workplace. Although some witnesses asserted that there is no such thing or asserted it was a very minimal thing (which, again, completely undermined their testimony), the evidence about the code of silence and its power was overwhelming. The three officers who eventually came forward were highly reluctant to do so because of the code of silence. They knew there would be serious repercussions from coming forward. The reality, though, was far worse than their fears. They - 183 - have been excluded, shunned and ostracized. As they enter a room, officers leave. They are given the silent treatment. They are repeatedly called a ‘rat’ and have had their names written next to the word ‘rat’ in graffiti in the washrooms. Officers have refused to work with them, both informally and formally through actual work refusals. In the case of Officer 3, he received death threats for ‘ruining the lives of 12 men’. Officer 3, on his last day at Hamilton Wentworth Detention Centre, had his four tires slashed in the parking lot. Earlier he had his vehicle ‘keyed’, that is, the paint of his car was intentionally scraped by someone’s key. Their work environment has become, in a word, poisoned. This, in turn, created enormous stress on the three officers, and in one case, became a significant contributor to the failure of his marriage. ……………………………………………………………………………………… ……………………………………………………………………………………… The existence of a ‘stay solid’ mentality and the need for mutual support in a ministry such as Corrections is understandable, to some extent. Correctional Officers depend on one another for safety and support. However, when a Correctional Officer engages in serious misconduct at work-for example, an assault on a restrained and compliant inmate-the Code of Silence forces Correctional Officers to look the other way and turn a blind eye to what happened in a truly misguided attempt to protect Correctional Officers who have abused their position of power and trust. Given their responsibilities to protect inmates under their custody and control as Correctional Officers, it is simply wrong. But the Code of Silence does even more harm than permit Correctional Officers to act wrongfully without consequences. It punishes the wrong people. It punishes those who come forward to tell the truth.” (page 35-37) [382] I note that the decisions in Zolnierczyk and in Marshall et al. also determined that, as a matter of fact, the COS exists and is operative within Corrections. [383] As stated previously, the witnesses called on behalf of the Union denied that the COS existed, and was applied, at the Sarnia Jail. In view of the totality of the evidence and the applicable jurisprudence, this denial caused me to question their overall credibility. A similar inclination was expressed by the Vice-Chair in Gillis et al. My impression on this point was that the evidence of the Union’s witnesses was so similar as to appear scripted or rehearsed. As a group, they generally tried to shift the blame to - 184 - CO Perrin and CO Vella. I find it interesting that CO Turner, in his March 1, 2012 meeting with Superintendent Fitzgerald, seemed to have some real understanding that CO Perrin and CO Vella had been victims of the COS. [384] This Vice-Chair has earlier reviewed the Occurrence Reports submitted by CO Turner, CO Charrette, CO Perrin and CO Vella. None of their Occurrence Reports referenced CO Dave Esser’s grip on the inmate’s neck or throat area while in the hallway. Similarly, these COs did not report that CO Esser used closed fist punches against the inmate while in the cell of Area 5. I do not consider this collective failure to fully report what occurred at both locations to be a matter of mere coincidence. Rather, I think it is consistent with the operation of the COS, and the fact that these COs were well aware that CO Esser’s responses were not in conformity with Ministry policies and procedures. In this regard, I note that both CO Perrin and CO Vella were not initially forthcoming in their Occurrence Reports, as they feared the possibility of reprisals from their colleagues for breaching the COS. Simply put, the failure by all of the above- mentioned COs to fully and accurately report what transpired in the hallway and cell is consistent with, and reflects the operation of, the COS. [385] CO Charrette testified that, while in the hallway, she turned away for three (3) to four (4) seconds to look back towards Video Court and that, when she turned around, CO Esser’s arms were on the inmate’s upper body. At another point, she stated that she was not entirely sure where CO Esser’s hands were. I find this difficult to accept, as on her evidence she was only seven (7) to eight (8) feet away from the inmate at the time. CO Charrette further testified that she did not see any of the inmate’s kicks in the cell make contact and that she did not witness CO Esser hit the inmate. Her - 185 - explanation was that CO Turner was standing in front of her and blocked her view of the bunk. This explanation was not referenced in her Occurrence Report. After assessing all of the evidence, I conclude that CO Charrette very likely witnessed more than she was prepared to acknowledge. [386] CO Turner similarly testified that his view of the strikes delivered by CO Esser in the cell was obstructed, as CO Vella was in front of him and blocked his view of both CO Esser and the inmate. It was the gist of his evidence that CO Esser’s hand was initially open and that he observed the latter deliver a strike towards the inmate. CO Turner stated that he did not see whether CO Esser’s hand was open or closed while in motion and did not know whether it actually contacted the inmate. In the circumstances, I find this explanation somewhat difficult to accept given that he was inside the cell at the time. CO Turner’s other explanation for not seeing what occurred was that CO Charrette was pulling on his shirt from behind in order to get him to leave the cell, so that the others could quickly exit. I think it telling that CO Charrette testified that CO Turner did not respond to her tug of the shirt. In my judgment, that evidence serves to undermine CO Turner’s further explanation for not seeing what took place in the cell. As was the case with CO Charrette, I conclude that CO Turner deliberately tried to minimize what he observed in the cell in an effort to conceal what occurred therein. [387] I think that the operation of the COS also explained why COs were reluctant to make a full disclosure to Inspector McNair during the CISU interviews. By way of example, CO Perrin acknowledged that she tried to conceal things from Inspector McNair during her first interview in an effort to do what the workplace expected. More specifically, her objective at the time was to protect CO Esser. CO Turner similarly - 186 - agreed that he withheld information from the Inspector during his initial interview. In his words, he “lied through omission”. [388] I note Superintendent Fitzgerald’s evidence that he started to receive complaints from CO Perrin and CO Vella, about how they were treated by other COs, shortly after the use of force incident of August 31, 2011. He further testified that they did not complain about their relationship with colleagues prior to the incident. In his words, there was little of significance before then. I accept the evidence of CO Perrin and CO Vella that their relationships with colleagues were generally fine prior to August 31, 2011. While there may have been the occasional difficulty, I am satisfied that any issues were resolved on an informal and collegial basis. I consider it more than coincidental that things changed dramatically for the worse shortly after the incident in question. I have been persuaded that the mistreatment complained off commenced when other staff formed the opinion that CO Perrin and CO Vella were going “up front” to report the details of the incident to Superintendent Fitzgerald. [389] It is unnecessary to review, and make final determinations about, each and every instance of misconduct described by CO Perrin and CO Vella. To do so would likely double the length of this Decision and would take the focus off the threshold issues in this case, namely was the force used on August 31, 2011 excessive and did CO Dean Esser attempt to perpetuate the COS on October 6, 2011. As mentioned above, it is readily apparent, from a reading of the Occurrence Reports submitted by those present during the incidents in the hallway and cell, that the COS was operative at the Sarnia Jail at the time material to this case. I conclude that its presence explains why CO Perrin and CO Vella were treated differently following the incident. I further accept that - 187 - these two (2) COs were generally mistreated by their colleagues as a consequence of their decision to breach the COS and to fully disclose the extent of their observations. [390] CO Perrin and CO Vella experienced serious consequences as a result of their subsequent decision to fully and accurately report what they witnessed on August 31, 2011. The mistreatment they described highlights the adverse results that can flow from a decision to breach the expectations of the COS. The effect on both CO Perrin and CO Vella, as described in their evidence, was substantial. No sound reason was provided to doubt their evidence about how their decision to report what occurred adversely affected their experience at work and, indeed, their health. I note that in Beltrano et al. and in Gillis et al., the Vice-Chairs observed that the COS serves to enhance the credibility of COs who elect to come forward. The following excerpt from the former decision provides the rationale for this view: “In my view, COs Burnett and Basar’s willingness to breach the code of silence serves to bolster their credibility. As Superintendent Wasylyk stated, based on his lengthy experience in the Ministry, it is an extremely rare occurrence for a CO to report on the misconduct of another CO. This is because COs are well aware of the repercussions for breaching the code of silence. COs Basar and Burnett had no illusions about the consequences that likely would face them if they reported on the grievors. Their concerns about breaching the code of silence led them to decide initially not to write an OR about the Horan incident and they eventually wrote one only with considerable reluctance. Part of the reason for CO Basar not reporting on COs. Beltrano and Noseworthy in 2002 was a fear of reprisals. It is difficult to understand why any CO would choose to breach the code of silence and suffer repercussions for doing so by fabricating a story about a fellow CO. It simply does not make any sense and is highly improbable that a CO would do this. Their decision to breach the code of silence with respect to the incidents strongly suggests that their version is credible. This is in contrast to the self serving aspects of the grievors’ testimony.” (page 73-74) I note, and accept, the caution given in Marshall et al. that the COS does not establish some form of “super-credibility” for COs who elect to come forward and that their - 188 - evidence against a colleague must be evaluated in light of all of the facts and evidence. I accept, however, that the decision to breach the COS is a significant factor to consider when assessing credibility. [391] Clearly, CO Perrin and CO Vella should not have been subjected to mistreatment by colleagues for doing the right thing. As stated in the jurisprudence, the COS victimizes those who come forward, encourages further misconduct, makes it difficult for the Employer to respond effectively, and puts inmates and the Employer at risk. I am left in no doubt that whatever occurred here was not simply a reflection of interpersonal issues. Rather, it was the product of a we versus them mentality which exists under the COS when a CO or COs elect to fully report perceived misconduct on the part of other staff. [392] I accept that the operation of the COS made it difficult for the Employer to effectively address the complaints of CO Perrin and CO Vella. It was hard for the Employer to discipline when competing versions of the events were advanced and full information was not forthcoming. I note Superintendent Fitzgerald’s evidence that his efforts and ability to deal with the numerous issues raised was hindered by the COS. This Vice-Chair can readily understand his frustration, as I have had to confront a similar challenge when assessing all of the evidence presented. The existence of the COS substantially complicates the adjudication of cases of this nature. [393] In the final analysis, I accept Inspector McNair’s findings as to the existence of the COS at the Sarnia Jail. - 189 - [394] It is apparent that there are numerous conflicts in the evidence presented. These include the following: the demeanour of inmate A during her assessment in Healthcare; whether inmate A kicked a garbage can on her way out of Healthcare; the location of CO Dave Esser and CO Vella when the inmate left Healthcare and entered the hallway; what the inmate said in the hallway and whether her words constituted a general or specific threat; the demeanour of inmate A in the hallway; whether the inmate moved towards CO Dave Esser either just before, or immediately after, making the threat; the nature of the grip CO Esser used in the hallway; whether the inmate continued to yell and be verbally abusive while the grip was being applied; whether CO Dave Esser used the term “Dutch Clutch” in the Sarnia Jail; whether CO Dave Esser and CO Vella had hold of the inmate’s arms as they walked down the hall and into Area 5; the relative positioning of the COs as they proceeded to Area 5; whether the inmate continued to yell on the way to the cell in Area 5; whether the inmate threw a cup of coffee or milk at CO Esser and CO Vella; the nature of the inmate’s movement to the bunk once CO Esser opened the cell door; whether CO Dave Esser called inmate A a “pussy” while in the cell; whether inmate A “kicked” or “tapped” CO Esser and CO Vella when in the cell; the intensity of the kicks and where they contacted CO Esser and CO Vella; the number of kicks; the number of strikes delivered by CO Esser while in the cell; whether CO Esser’s first strike was with an open hand; the number of closed fist punches delivered by CO Esser; whether CO Perrin was in the cell at the time of the incident; whether CO Perrin vocalized anything following each of the strikes; and whether the inmate suffered any injuries as a result of the incident. [395] In my judgment, the conflicts in the evidence can likely be explained on the following grounds: the events in question occurred some years ago making precise - 190 - recollection more difficult; the Occurrence Reports prepared with respect to the incident were insufficient to assist with the process of recollection; the events themselves occurred within a very condensed time frame; CO Dave Esser and inmate A may both have been motivated to downplay their actions; and the recollection of events on the part of CO Turner and CO Charrette may have been influenced or impacted by the COS. In any event, it is unnecessary to resolve all of the conflicts in this Decision. The most material conflicts are addressed below. [396] On August 31, 2011, inmate A was coming down off of street drugs following her admission to the Sarnia Jail on August 30th. There is no doubt that she forcefully expressed her reluctance to return to the cell in Area 5. As mentioned, she insisted on being taken to the female range in Area 8. I accept that inmate A was belligerent, loud and verbally abusive towards correctional staff on the morning in issue, and that she swore and yelled at them as the sequence of events unfolded. The evidence suggests that inmate A had some propensity towards violence when outside of the institution. I note, however, that CO Dave Esser, CO Vella, CO Perrin, CO Turner and RN Plain all testified that they had never witnessed first hand the inmate being physically aggressive or assaultive towards staff while under their custody and control. I was left with the overall impression that inmate A would be verbally combative when first admitted but would, ultimately, tend to comply with any directions given to her. The evidence does not permit me to determine whether she was a “heavy” on the female range, as claimed by CO Esser. In any event, assuming she had that status, I question whether it would be a reliable indicator as to how she might act with staff in the hallway and in the cell. Nevertheless, I conclude that the inmate’s overall demeanour on the morning of August 31, 2011, together with the fact she was coming down off drugs, could reasonably lead - 191 - the COs present to conclude that there was the potential for a physical encounter with her. The situation presented in both the hallway and the cell clearly required the COs, including CO Dave Esser, to be prepared for the unexpected and to exercise a heightened sense of caution when interacting with the inmate. [397] I accept that inmate A made a verbal threat in the hallway and that it was likely directed at CO Dave Esser specifically. She clearly made a statement to the effect she was going to punch him in the face. I note, and agree with, Mr. Ireland’s assessment that even if the inmate uttered a more generic comment, it still constituted a threat which required an elevated level of awareness on the part of the COs present in the hallway. [398] Mr. Ireland advised that the CRT policy, set out in exhibit #93 and #94, was specifically created to address that technique. I am satisfied, on the evidence, that CO Esser did not utilize a CRT against inmate A in the hallway. The hold or grip applied to her was not the type of technique described in the aforementioned exhibits. More specifically, it was not applied by the forearm from behind the inmate. Additionally, I accept that the hold used by CO Esser was not intended to immobilize the inmate, by rendering her unconscious, or to interrupt the circulation of blood to her brain. While the CRT policy, in a strict sense, is inapplicable to what occurred in the hallway, I find that it does serve to highlight and reinforce the Ministry’s concerns about neck holds generally given the possibility of serious injury to the inmate. [399] As stated earlier in this Decision, both parties agreed that Mr. Ireland could be treated as an expert on the use of force for the purpose of this proceeding. After reviewing and assessing his evidence, I have concluded that it should be accorded significant weight. - 192 - [400] Mr. Ireland advised that there is no approved technique which allows a CO to put their hands on an inmate’s throat or neck area. Indeed, he insisted that they are prohibited from doing so, even if the inmate is not rendered unconscious. Mr. Ireland candidly acknowledged that there is no specific policy which prohibits holds of the neck or throat, apart from the CRT policy. He clearly stated, however, that this prohibition is fully captured by the training given to COs. Given his prior work history and experience, I readily accept his evidence on this point. I note that exhibit #94 provides as follows: “No employee shall use any restraint technique which has not been endorsed by the ministry or without having received training in the use of force and the approved restraint techniques.” Ultimately, I accept that the type of technique used by CO Dave Esser on August 31, 2011 has not been endorsed or approved by the Ministry. I consider it significant that CO Esser agreed that he has never been trained on any type of neck restraint. I am left to question, therefore, why he would consider it appropriate and permissible to put his hand on the inmate’s neck, throat or collarbone. On my analysis, the use of a hold or grip around any of these parts of the body would contravene the training provided to COs. [401] Notwithstanding the above conclusion, the Employer may wish to consider the advisability of refining its policies to clarify that all neck or throat holds are prohibited. [402] Mr. Ireland expressed the opinion that the inmate’s mood, after leaving the Healthcare Unit, escalated and that she seemed agitated and in a state of crisis. In his view, taking ahold of the inmate at that point in the hallway created a greater risk of an assault by the inmate. Mr. Ireland believed that CO Esser should have made a greater effort to diffuse the situation, as required under the Use of Force Management Model. - 193 - Indeed, he suggested that CO Esser should more properly have resorted to other options such as: creating a distance between himself and the inmate; and “blading off” so as to limit any target areas. Mr. Ireland stated that the risk was not as great, given the number of COs in the area of the hallway. He suggested that, as a result, there was no need for CO Esser to move in immediately to take control and eliminate the threat. Rather CO Esser should have attempted to de-escalate the situation and then disengage. Mr. Ireland also testified that direct orders should have been given to inmate A at the time. This Vice-Chair has been persuaded that CO Esser should have considered these other options. I note that, during cross-examination, Mr. Ireland testified that if CO Esser believed the inmate was coming at him to hit him, then he could have pushed her in the shoulder area for purposes of redirecting her. He reiterated that the type of holding grip resorted to by CO Esser in the hallway was not approved, was not taught during training, and exposed the inmate to serious risk of injury. Mr. Ireland asserted that, in all of the circumstances, CO Esser should have opted for some less intrusive technique. [403] Mr. Kitchen and Superintendent Fitzgerald shared Mr. Ireland’s assessment as to the force used by CO Esser in the hallway. Mr. Kitchen testified that a choke would never be an appropriate response to a verbal threat, as holds of the neck are “off limits” and prohibited by the training given to COs. Superintendent Fitzgerald, for his part, clearly viewed the technique applied to the inmate’s neck or throat area as an excessive use of force. [404] This Vice-Chair found CO Dave Esser’s evidence with respect to the “Dutch Clutch” to be self-serving. I have some difficulty reconciling his evidence that he has - 194 - used the technique over a large span of years, albeit irregularly, with the assertion that he did not use the term while working in the Sarnia Jail. I note that both CO Vella and CO Perrin presented evidence to the contrary, as they had heard CO Esser reference the term at work. [405] I consider it material that CO Esser’s first mention of a hold on the collarbone was during his testimony before the Grievance Settlement Board. In his CISU interview with Inspector McNair, he stated that he grabbed ahold of the inmate’s neck or throat area while in the hallway. There was then no reference to the inmate’s collarbone. I have been persuaded that the shift of focus to the collarbone was an effort on the part of CO Esser to minimize his misconduct. In contrast, I accept the Employer’s submission that inmate A’s description of the events in the hallway remained substantially consistent over time, and that there are no significant variances between her evidence and what she earlier conveyed to Mr. Kitchen and Inspector McNair during their interviews. [406] In the final analysis, I find that CO Dave Esser’s hold on the inmate’s neck or throat area constituted excessive force and was contrary to the training he had previously received. I would reach the same conclusion with respect to a grip of the collarbone. It does not matter, in my judgment, that the inmate could still yell while CO Esser’s hand was on her neck or throat, or that her blood flow may not have been restricted. I conclude that CO Esser should have adopted a less intrusive approach, as suggested by Mr. Ireland. Additionally, I have not been persuaded that he used the least force necessary to protect himself and to control the situation. Instead, CO Esser - 195 - acted in a retaliatory way in response to the verbal threat received from inmate A. In this sense, the force used was punitive, rather than defensive, in nature. [407] I am satisfied, on the evidence, that CO Dave Esser and CO Vella held the inmate’s arms as they all proceeded down the hallway towards the cell in Area 5. I further accept that the inmate was yelling and flailing about in their approach to the cell. On their arrival, CO Esser and CO Vella escorted inmate A into the cell. They continued to have ahold of her at the time. There is no doubt that, once released, the inmate moved to the door and pushed on the bars in an effort to prevent it being closed by the COs on the other side of the door. The inmate was yelling, screaming and swearing during the ruckus at the door. It is impossible to be certain as to whether she threw, swatted, knocked or wacked the cup of liquid at CO Esser and CO Vella. In the final analysis, the discrepancies in the evidence on this point are irrelevant. What is more important is that whatever action the inmate took with the cup appeared to trigger CO Esser’s decision to open the cell door and confront the inmate. [408] At the outset, I question why it was necessary for CO Esser to enter the cell. On the evidence, there were a lot of staff in and around Area 5 who could have been called on for assistance to either prevent the inmate from opening the cell door or to get the door shut and secured. At a minimum, this group of employees, which I estimate as being approximately six (6) in number, could have waited the inmate out. As Mr. Ireland asserted, time was on their side. In conjunction with this, direct orders could have been given to the inmate to move to the back of the cell. If inmate A had complied with same, it would have provided the COs present with a greater opportunity to lock the cell door. The evidence indicates, however, that CO Esser did not use any tactical communication - 196 - with the inmate while the door was being pushed back and forth. To state the obvious, if CO Esser had opted to stay outside of the cell, and had secured the door with the assistance of other staff, that would have ended the matter and this part of the proceedings could have been avoided. [409] There is a dispute in the evidence as to how the inmate got to the bunk once the cell door was opened. Inmate A testified that she “ran” to the bunk. CO Turner’s evidence was to the same effect. CO Vella testified that she and CO Esser used a “hands-on” technique to move the inmate onto the bunk. CO Charrette agreed that the move to the back of the cell was done in that fashion. CO Esser, as mentioned, stated that he would take a step forward and that the inmate would then take a step back. He stated that this sequence of events was repeated several times until the inmate reached the back of the cell. I note that no other witness to the events in the cell observed this type of interaction. [410] I accept Mr. Ireland’s opinion that, once the inmate was on the bunk, CO Esser should have attempted to exit the cell and disengage from the inmate. More specifically, he should have backed out of the cell with instructions to inmate A to stay put. CO Esser could then have monitored the inmate’s reaction and, if she did not move, he could have left the cell. If, on the other hand, the inmate had gotten up off the bunk and started to follow CO Esser to the door, there were sufficient COs in the area to allow for the use of options, other than a series of strikes to the head. I note CO Esser’s evidence that he thought the inmate was angry when sitting on the bunk because she knew she could not get to the cell door before the COs could exit the cell and close the - 197 - door. I question that if that was the case, why CO Esser did not opt to leave the cell at that point in time. [411] There is a dispute in the evidence as to the number of kicks delivered by the inmate while the COs were in the cell. I find, on the evidence, that inmate A kicked CO Esser twice in the groin area and CO Vella once making contact with her right hip. I accept that the inmate kicked, rather than tapped, CO Esser and CO Vella. I consider that her use of the word “tap” was an attempt to downplay her actions in the cell. I further accept that the inmate was flailing around, kicking her legs and moving her arms while on the bunk. If she was not kicking out, there would have been no reason for CO Vella to grab, and put pressure on, the inmate’s ankles. [412] After due consideration, I agree with Mr. Ireland’s assessment that little turns on the distinction between a kick and a tap. In either case, CO Esser should have disengaged after contact was made. Mr. Ireland added that other staff could have moved in to take control of the inmate and that she could have been placed in restraints until no longer in a state of crisis. I note that in cross-examination, he stated that, when inmate A tried to kick CO Esser and CO Vella from her position on the bunk, the COs could have resorted to the following: physical handling techniques; restrain the inmate through the use of handcuffs; or, possibly, the use of a distraction strike. It was the substance of Mr. Ireland’s evidence that other options were available to CO Esser at the material time. [413] There is a further variance in the evidence as to the number, and nature of, the strikes delivered by CO Esser. Inmate A testified that she was struck three (3) times with a fist. CO Vella stated that there were three (3) to four (4) strikes and that it was - 198 - likely the first strike was delivered with an open hand. CO Perrin stated that three (3) or four (4) punches were delivered, all with a closed fist. CO Turner only observed CO Esser deliver one (1) strike towards the inmate. He did not see whether CO Esser’s hand made contact with the inmate or whether it was open or closed at the time. In cross-examination, CO Turner agreed it was conceivable that CO Esser’s fists were closed and that he punched the inmate in the face. CO Esser testified that, after the first kick, he hit the inmate with the backside of his hand. He stated that the strike was delivered with an open hand and not a closed fist. CO Esser later agreed that the initial strike was with a semi or partially closed fist. CO Esser acknowledged that, after the second kick, he punched the inmate twice with a closed fist on the right side of her head. I note that, apart from the nature of the first strike, there is not much difference between the evidence of CO Esser and inmate A on this point. [414] After reviewing all of the evidence, I find that CO Esser, more likely than not, delivered the first strike with a partially closed fist, as a reaction for having been kicked. I accept that the second and third strikes were punches delivered with a closed fist. All of the strikes made contact with the right side of the inmate’s head. [415] Mr. Ireland testified that COs are taught a form of distraction strike using the back of the hand or palm. He advised that the technique may be used when a CO is being assaulted so as to create the necessary lag time for the CO to disengage or to regain control of the inmate and the situation. Mr. Ireland stressed that a distraction strike, as described above, cannot be used as a form of retaliation in response to an assault. He reiterated that COs are not trained, or permitted, to deliver a distractionary strike with a closed fist. In this regard, Mr. Ireland stated: “we do nothing with closed fists”. He - 199 - further testified that the Employer does not teach COs to punch or strike with a closed fist. [416] I find it doubtful that CO Esser consciously intended his first strike to be a distraction strike. I note his evidence that the initial hit was “just a reaction”. I consider it more likely than not that CO Esser delivered the first strike as a retaliatory response to the inmate’s initial kick. Assuming that a distraction strike may be made with a semi or partially closed fist, and that such a strike would have been appropriate and permitted following the initial kick, it is noteworthy that CO Esser did not disengage from the situation after delivering same. Additionally, he did not resort to other permitted options in order to assume control. Instead, CO Esser proceeded to strike inmate A with two (2) closed fist punches after she kicked him a second time. In all of the circumstances, I consider that the first strike was not a distraction strike and that it constituted an excessive use of force. [417] I reject CO Esser’s statement that he believed a distraction strike could include a closed fist strike or punch. I view it as material that he acknowledged he was never trained to deliver a distraction strike in that fashion. The second and third strikes against the inmate were clearly not distraction strikes. In my view, they were not intended to distract and were not defensive in nature. Additionally, they were delivered with a closed fist. I accept Mr. Ireland’s expert opinion that closed fist punches are not permitted, except in rare situations, such as where a CO is being assaulted by a large number of inmates. That was not the case here. I find it difficult to accept CO Esser’s assertion that he believed closed fist strikes were not prohibited by the Employer. In my judgment, the two (2) closed fist punches were an excessive use of force. I reject CO - 200 - Esser’s claim that they represented the least intrusive way to get the inmate to stop kicking and to “stop the assault”. I note Superintendent Fitzgerald’s view that “three closed fist strikes to the head is excessive whether the inmate tapped or kicked”. I agree with that opinion and consider it to represent a proper assessment regardless of whether two (2) or three (3) closed fist punches were delivered to the inmate’s head. I have been persuaded that CO Esser’s forceful response was not justified under the use of force continuum. [418] Section 7(1) of Regulation 778 permits a CO to use force against an inmate in order to defend themself, or another CO, from an assault. By virtue of section 7(2), the amount of force used must be reasonable and not excessive having regard to the nature of the threat posed by the inmate and all the other circumstances of the case. I accept that some force could have been used by CO Esser while in the cell. I conclude, however, that the force he opted to use, specifically the three (3) strikes to the inmate’s head, two (2) of which were with a closed fist, was excessive and, thereby, contrary to the legislation. [419] The Adult Institutions Policies and Procedures, under the heading of ‘Use Of Force’, provides that physical force can be used if there is an immediate threat to personal safety and there is no reasonable alternative available. Here, as noted by Mr. Ireland, there were other alternatives to the force used by CO Esser in the cell. Additionally, any force used must be only the minimum necessary and must be proportionate to the threat posed or the harm to be avoided. I find that CO Esser’s actions in the cell exceeded these thresholds. I do not view his strikes to the head of inmate A as defensive or as a control measure. It appears to this Vice-Chair that they - 201 - were more in the nature of punishment for having been kicked. I also think that CO Esser applied a degree of discomfort to the inmate that exceeded the level necessary to establish and maintain control. [420] CO Esser relied on sections 25, 34 and 37 of the Criminal Code as justification for his actions. On my reading, these provisions do not authorize an excessive use of force, as occurred here. In this instance, I am satisfied that CO Esser used more force than was necessary to defend himself from assault or to prevent the repetition of an assault. In the circumstances, the Criminal Code does not provide him with a defence. [421] I think it material that the above referenced legislation and policy were covered at some depth in the training provided to CO Esser. [422] The use of excessive force against an inmate constitutes a serious breach of trust. It breaches a CO’s obligation to provide care and control of inmates in a safe and professional manner; brings the administration of justice into disrepute; damages the reputation of the Ministry; and subjects it to the possibility of financial liability. In my judgment the force used by CO Esser on August 31, 2011, at both locations, was fundamentally contrary to his obligations as a CO and served to irreparably compromise the employment relationship. [423] The authorities relied on by the Employer speak to the breach of trust which occurs when a CO uses excessive force against an inmate. The Vice-Chair in Beltrano et al commented as follows on this point: “The key factors in assessing the appropriateness of the penalty in this case are the seriousness of the offence and the false denial of the grievors about committing the offence. As noted previously, COs are responsible for the care, custody and control of inmates and as peace - 202 - officers they occupy positions of trust. As arbitrators and the Courts have recognized, the physical assault of an inmate by a CO without cause constitutes a breach of trust of the highest order and a most serious offence………………………………………………………………………..…… ……………………………………………………………………………………… The conduct of the grievors was fundamentally contrary to their obligations as COs. By itself, this conduct is indicative of an irreparable breakdown in the employment relationship. Their denial of the offence serves to compound the breach of trust and further indicates that the employment relationship cannot be rehabilitated………...…………………………………” (page 93) The arbitrator in Re British Columbia Government Employees addressed the breach of trust issue from a somewhat different vantage point. He there observed: “If a corrections officer abuses the right to use force, the likelihood is that any complaint would founder in a case where it was a corrections officer’s word against the word of an inmate. That reality gives rise to the second area of vulnerability, being the vulnerability of an inmate’s credibility. One can anticipate that where an allegation of assault comes down to the difference between the word of a corrections officer and the word of an inmate, the word of the corrections officer will carry greater weight for a number of self-evident reasons. The very fact of that vulnerability raises in a corrections officer a significant duty of trust. The employer is entitled to treat a breach of that trust as evidence that a corrections officer does not possess the attributes essential to the proper performance of what must be seen on the evidence as a potentially frustrating and provocative role where integrity and self- control are important, even vital, qualities.” (paragraphs 68-69) [424] It was CO Esser’s evidence that the situation in the cell “went really well” and that “it never got out of hand”. In retrospect, and given the totality of the evidence, this constitutes a poor and misguided assessment as to what occurred. [425] There is a dispute in the evidence as to whether CO Perrin was actually in the cell at the material time. CO Perrin placed herself inside the cell in close proximity to CO Vella. She insisted that CO Turner and CO Charrette were not in front of her at the - 203 - time. It was the substance of her evidence that these two (2) COs were behind her. CO Perrin testified that she first saw them when she turned to exit the cell. CO Vella’s evidence was that CO Perrin was at the back of the cell at the time the kicks and strikes were delivered. She positioned CO Perrin behind herself, CO Esser and CO Turner. CO Turner adamantly denied that CO Perrin was in the cell at any time during the incident. He claimed that he only saw CO Charrette when he exited the cell. CO Charrette, for her part, stated that the only COs in front of her in the cell were CO Esser, CO Vella and CO Turner. She did not recall CO Perrin being in the cell or being let out of same before the door was locked. Finally, CO Esser advised that he did not see CO Perrin in the cell. He recalled seeing only CO Turner and CO Charrette when he and CO Vella left the cell. [426] I consider the above discrepancies to be somewhat strange and, at the same time, difficult to resolve. On the respective accounts, CO Perrin was either in the cell or she wasn’t. After considering this aspect of the case at some length, I am satisfied that CO Perrin was situated at a spot where she could observe what occurred in the cell. That location could have been inside or just outside of the cell. While there are some differences in the evidence of CO Perrin and CO Esser, their respective accounts of what occurred in the cell were substantially similar. I doubt that she would fabricate a false story of what transpired if she was not in fact there. As mentioned, CO Vella corroborated CO Perrin’s evidence as to the latter being in the cell. CO Dean Esser described CO Vella as a “great CO” and as “one of the best we had there”. CO Dave Esser expressed a similar sentiment, and stated that CO Vella was an excellent CO and that they shared a good working relationship. These comments from the two (2) grievors adds to CO Vella’s credibility and causes me to further question why she would - 204 - be motivated to lie about the incidents of August 31, 2011. Upon reflection, I am satisfied that she was truthful and did not fabricate. I note that CO Vella’s description of what occurred in the cell is not all that different from that provided by CO Esser. While this Vice-Chair senses that CO Vella was angry and frustrated by the treatment she received following the incident, I conclude that her evidence satisfied the standard articulated in Faryna and Chorney, [1951] BCJ No. 152 (B.C.C.A.). Lastly, I note CO Turner’s evidence that he spoke to both CO Vella and CO Perrin before he prepared his Occurrence Report in order to get a sense of how he should describe the incident. CO Turner also testified that he again spoke to both of them after submitting his Occurrence Report to learn what they had reported. I am at a loss to understand why he would speak to CO Perrin about these matters, if she was not actually in or around the cell at the material time. [427] Inmate A complained that the strikes delivered by CO Dave Esser left a goose egg on the side of her head, which she estimated was approximately the size of a marble. It is apparent from the evidence that any injury sustained did not require treatment and that other COs did not observe any visible injuries to the inmate during or after the incident. It is clear from a reading of authorities that the lack of significant injury is not determinative on the question of whether excessive force was applied to an inmate. This Vice-Chair commented as follows in Lavallee: “It is apparent that the injuries sustained by inmate P.S. were relatively minor in nature and did not require treatment or medication. That fact, however, does not preclude a finding that the inmate was subjected to excessive force; see Horan. Such a finding must be made only after a careful assessment of a number of relevant matters, including the nature of the force used; the circumstances then confronting the CO; whether the inmate posed an immediate threat to the CO or others; the availability of other options; and the appropriateness of the response in the context of the restrictions placed on a CO’s use of force by legislation and policy. In - 205 - this instance, I determine that the grievor used excessive force while the inmate was on the ground notwithstanding that the resulting injuries were minimal.” (page 106) [428) The obligation of a CO to file an Occurrence Report following a use of force incident is set out in section 7(3) of Regulation 778 and in the Adult Institutions Policy and Procedures under the heading of ‘Use of Force’. The subject of Occurrence and Offender Incident Reports is also addressed in the latter policy. The Institutional Services Policy and Procedures Manual further speaks to what must be contained in an Occurrence Report. These provisions have been reproduced earlier in this Decision. It is very clear that pursuant to the requirements outlined therein, a CO is expected to submit an accurate and complete Occurrence Report following a use of force incident. As stated, this expectation is addressed at length in the training provided to COs, including CO Esser. I accept Mr. Ireland’s evidence that report writing is an extremely important part of the job of a CO. I also accept Superintendent Fitzgerald’s statement that it is not acceptable for a CO to submit an incomplete Occurrence Report. [429] CO Esser’s initial Occurrence Report (exhibit #6) made no reference to the hold applied to the inmate’s neck or throat area. It simply stated that he grabbed the inmate’s right arm and that he and CO Vella held her against the wall. Additionally, CO Esser referenced a distraction to the inmate’s face which was repeated after the inmate’s second kick. CO Esser made no mention of having used closed fist strikes. I have previously cited the other deficiencies identified by Mr. Ireland. I do not accept CO Esser’s explanation for why he failed to report the neck or throat hold and the closed fist strikes in his Occurrence Report. It strikes me that this is precisely the type of specific - 206 - information which must be included in an Occurrence Report after a use of force incident. [430] Given the way exhibit #6 was written, I agree that it would make no sense for CO Esser to get closer to the inmate after she sat down on the bunk. That action would have made him more susceptible to an act of physical aggression from the inmate, if she were so inclined. [431] CO Esser’s second Occurrence Report (exhibit #7) stated that he struck the inmate with the back of his hand “as per Ministry training concerning a distraction” and that “this happened twice”. I think it material that CO Esser failed to reference the application of any close fist strikes or punches, and only acknowledged there having been two (2), not three (3), strikes. I note that CO Esser admitted that he did not mention the subsequent closed fist strikes in exhibit #7, as he felt the Ministry was going after him and that this concern led him to write “as little as possible”. He further agreed in cross-examination that he was “deliberately vague” in the wording of his latter Occurrence Report. [432] I accept that Occurrence Reports are fundamentally important in the operation and administration of a correctional facility, and that any misrepresentation therein, through omission or dishonesty, constitutes serious misconduct. In this instance, I have been persuaded that the Occurrence Reports submitted by CO Esser were intentionally vague, inaccurate, dishonest and misleading. Counsel for the Employer asked why CO Esser would not provide an accurate description of what occurred in the hallway and in the cell, if he truly believed his responses at both locations were necessary and reasonable. It was her submission that the only explanation for CO Esser’s deficient - 207 - Occurrence Reports was that he knew the force used was excessive and was trying to conceal same. I am in full agreement with that assessment. As stated previously, I accept that COs are not permitted to apply a grip or hold to the neck or throat of an inmate; that distraction strikes must be delivered with an open, and not a closed, hand; and that closed fist strikes are prohibited in all but the rarest of situations. [433] In summary, I find that CO Esser did more than simply file an incomplete Occurrence Report. I conclude, rather, that he made a concerted and purposeful attempt to conceal the excessive use of force in violation of both legislation and the Ministry’s policies and procedures. [434] As mentioned above, there is a discrepancy in the evidence as to whether CO Dave Esser showed his initial Occurrence Report to CO Turner, CO Charrette and CO Vella before they completed their reports. The evidence can be briefly summarized as follows: - CO Esser testified that he did not show his Occurrence Reports to anyone other than OM Cameron and Mr. Kitchen; - CO Turner testified that he did not “believe” CO Esser showed him his Occurrence Report before he wrote his first Occurrence Report (exhibit #12). CO Turner maintained that he did not read CO Esser’s Occurrence Report and that the latter did not tell him what to report. CO Turner further testified that he did not read anyone else’s Occurrence Report before completing his report, and that he did not share his report with others once it was completed. CO Turner did acknowledge the following: he spoke to CO Vella and CO Perrin before he prepared his Occurrence Report in order to get a sense of how he should describe the incident; and he did speak to CO Vella and CO Perrin after submitting his Occurrence Report for purposes of learning what they had reported to the Employer; - CO Charrette testified that CO Esser did not show her his Occurrence Report and that she did not read it before completing her report. It was her further assertion that she did not see anyone else’s Occurrence Report before completing hers. CO Charrette stated that no one, - 208 - including CO Esser, told her what to include in, or exclude from, her Occurrence Report. She did not recall discussing the content of her Occurrence Report, or showing it to anyone involved in the incident; - CO Vella testified, in contrast, that CO Esser gave her his initial Occurrence Report and said “read this”. It was her evidence that she, CO Turner and CO Charrette all read the document shortly after it was completed. From CO Vella’s perspective, CO Esser was trying, in a subtle way, to threaten and intimidate her into substantiating his account of the events in the hallway and in the cell. She testified that being given CO Esser’s Occurrence Report influenced the way she worded her report. CO Vella advised that she feared reprisals would result if she failed to support CO Esser’s version of what occurred on August 31, 2011. CO Vella added that she, CO Turner and CO Charrette all shared their Occurrence Reports with each other before they were submitted to management. [435] After considering the respective accounts of what occurred, I prefer that advanced by CO Vella. I have previously found the credibility of CO Esser, CO Turner and CO Charrette to be somewhat deficient with respect to what occurred in both the hallway and the cell. Additionally, I have determined that CO Esser was not truthful in the way he worded his two (2) Occurrence Reports. In contrast, CO Vella presented a believable version of events notwithstanding her awareness that doing so could result in more adverse consequences by way of the operation of the Code of Silence. I note that CO Vella’s evidence on the point was largely consistent with what she told Inspector McNair during her CISU interview. I also think it material that CO Vella was candid in acknowledging she improperly shared her Occurrence Report with others and that she also read their reports prior to completing her report. [436] I note that all of the Occurrence Reports initially submitted by CO Esser, CO Turner, CO Charrette and CO Vella failed to reference the hold on the inmate’s neck or throat area in the hallway and the use of closed fist punches or strikes in the cell. I also find it interesting that CO Turner’s Occurrence Report (exhibit #12) mentioned a - 209 - “distraction to the face”. All of this is consistent with CO Turner, CO Charrette and CO Vella having seen and read CO Esser’s Occurrence Report before they prepared their reports. [437] I find that CO Esser attempted in a subtle, and ultimately successful, way to influence and pressure CO Vella and the other two (2) COs to write their Occurrence Reports in a way that would support and corroborate his version of the events. This effort reflected the fact, in my judgment, that CO Esser was fully aware his use of force at both locations was excessive. Simply stated, I conclude that he was trying to conceal the excessive use of force by getting other COs to cover it up by way of the wording of their Occurrence Reports. [438] I note Mr. Kitchen’s evidence that inmate A told him, during their interview on September 7, 2011, that CO Esser had said “oh you whimp” or “something like that”, when she covered up in the cell after a fake punch. The inmate later told Mr. Kitchen that CO Esser called her a “pussy” or “something like that”. At another point in the interview, she asserted that he did call her a “pussy” when she covered up. During her evidence before this Vice-Chair, inmate A testified that CO Esser did, in fact, use that term. In cross-examination, the inmate insisted that the word “pussy”, rather than “whimp”, had been used. [439] I am not satisfied on the evidence that this allegation against CO Esser has been made out. I think it significant that none of the COs in or close to the cell, and most importantly CO Vella and CO Perrin, heard CO Esser utter the derogatory comment in issue. I further note that Inspector McNair does not appear to have made a finding on this point in his Final Report. - 210 - [440] I have not been persuaded that Mr. Kitchen held any hostile animus towards CO Dave Esser because of the latter’s involvement in the Union. I accept that Mr. Kitchen was sceptical of the initial version of events as presented in the Occurrence Reports and that he had a “gut feeling” there was more to the story. I further accept that the nature of this impression was consistent with what inmate A later told him during their interview and particularly about the strikes to her head. This Vice-Chair cannot fault Mr. Kitchen for asking Superintendent Fitzgerald to stay at the Jail so he could inform him of what he had learned from the inmate during the interview. More specifically, he had received new information, not captured by the Occurrence Reports filed, about the hold on the inmate’s neck or throat area in the hallway and the closed fist punches in the cell. I note that Superintendent Fitzgerald, and not Mr. Kitchen, was the ultimate decision maker in this case. [441] I accept Superintendent Fitzgerald’s evidence as to the nature of his relationship with CO Esser. He stated that the relationship was professional, albeit they might conflict at times given CO Esser’s role as the Local Union President. I think that a certain amount of confrontation between a Superintendent of a correctional facility and a Local Union President is to be expected given that a person in the latter position must, at times, be aggressive in the representation of union members. “Back and forth arguments and debates”, as referenced by CO Dean Esser, should not be viewed as unusual in this context. I have been persuaded that CO Dave Esser’s role as the Local Union President did not influence or impact Superintendent Fitzgerald’s decision to terminate. I find that the latter’s focus, instead, was on what occurred on August 31, 2011, the CISU Investigation Report and CO Esser’s responses at the Allegation - 211 - Meeting. I prefer Superintendent Fitzgerald’s evidence on this issue over that presented by the Union’s witnesses. [442] The various examples relied on by the Union, as to conflict between the Superintendent and CO Esser, were all ultimately resolved, though not in as timely a way as the Union might have hoped for. The examples reflect the kinds of disputes which frequently occur within a unionized workplace and in which a certain amount of tension between the parties is not unusual and, in fact, is to be expected. On my analysis, the examples referred to do not establish that anti-union animus formed any part of the reason for CO Esser’s termination. The decision was premised, rather, on CO Esser’s conduct during and shortly after the use of force incident of August 31, 2011. [443] I note the following comments from Dobroff et al. on the issue of anti-union animus: “…..direct evidence of anti-union animus is rarely available, and is not necessary for the union to meet its onus. Nevertheless, there must be sufficient evidence to establish that the employer action was tainted by anti-union animus. If such an animus can be pieced together from a pattern of circumstantial evidence, the union would have met its onus. The issue then is whether the evidence before me provides a sufficient basis to draw the inference the union urges me to make. That is, that the reasons the employer offered at arbitration are mere ex-post facto justifications to cover up a decision made for the illegitimate purpose of taking reprisals against the grievors because of their union activity. In other words, I will have to be satisfied from the totality of evidence that the reasons offered are fabrications, and that the real reason, in whole or part, was an intention to penalize the grievors because of their union activity…………………………………………………………………..…………” (page 57) -and- “….., the fact that a union official carries out the duties of his office with diligence and persistence……….., by itself, does not justify an inference - 212 - that any employer decision which adversely impacts him, was tainted by an anti-union animus……………………………………………………………...….” (page 60) [444] As stated in Daniel, this Vice-Chair agrees with the approach articulated in Dobroff et al.. In this instance, I am not satisfied from all of the evidence presented that the reasons offered by the Employer to support its decision are, in fact, fabrications and that the real reason, in whole or in part, was an intention to penalize CO Esser because of his union activity. Rather, I find that the decision to terminate was premised on CO Esser’s excessive use of force on inmate A on August 31, 2011, his subsequent preparation of incomplete, inaccurate and untruthful Occurrence Reports, and his efforts to have other COs conceal and cover up the excessive use of force in their Occurrence Reports. These are matters of real substance and concern and do not constitute an ex- post facto justification to cover up a decision made for an illegitimate purpose. [445] I conclude that the Employer had just cause to terminate the employment of CO Dave Esser. In my judgment, sufficient evidence was presented to establish the substance of the first, third and fourth grounds, as set out in the letter of termination. The Employer’s failure to prove the second ground, relating to the alleged use of the word “pussy”, does not impact the ultimate decision, as the remaining grounds were substantiated and, when taken together, support the decision to terminate. I accept Superintendent Fitzgerald’s determination that CO Esser could not be trusted going forward to carry out the duties of a CO, as prescribed by legislation and policy. I consider it material that CO Esser demonstrated no remorse or regret for his actions, and stated he would not, in retrospect, do anything different in the hallway or cell. The fact he would be inclined to do the same thing again is telling and does not stand to his credit. The serious misconduct engaged in by CO Esser is not outweighed by his years - 213 - of service and otherwise clean record. In the final analysis, this Vice-Chair is satisfied that termination of CO Esser was an appropriate disciplinary response and that no grounds exist to interfere with the Employer’s decision. [446] It is extremely difficult to determine what was said during the several exchanges between CO Perrin and CO Dean Esser on October 6, 2011. The resolution of the dispute, ultimately, rests on which of the two (2) witnesses was the more credible in describing what occurred. The matter is also complicated by the fact that the statement complained of, that is, “stick to your report”, was subtle and not as dramatic as the threats made in some of the other reported cases. I consider it important, when assessing the evidence, to consider the context in which the contested exchanges occurred. To be clear, they occurred shortly after a use of force incident at the Sarnia Jail and during the course of a CISU investigation. Additionally, in certain respects, the operation of the COS makes it exceedingly challenging to discern the truth. [447] I accept that CO Dean Esser was already in the Computer Room when CO Perrin arrived and that he did not go there in an effort to search her out. It is also apparent that the conversation at that location was started by CO Perrin. [448] I do not think that the first exchange in the Computer Room was a “nothing conversation” for the following reasons: i) CO Perrin told CO Esser that neither she nor CO Vella had gone up front to speak to Superintendent Fitzgerald about the use of force incident; ii) CO Perrin informed CO Esser that his friend, CO Wilkins, had called her a “rat” and she then accused CO Wilkins of being a “rat”; iii) While CO Esser asserted he did not want to talk about the incident, he brought up the fact that someone in or near the cell had said to stop - 214 - hitting the inmate. CO Perrin informed him that this had not occurred; and iv) CO Esser testified that he said words to the effect that, if it were him, he would review his Occurrence Report before going to the CISU interview. I note that this information was not conveyed to Inspector McNair at the CISU interview. My impression is that an exchange, which included these items, would be outside of the range of normal conversation between colleagues, and particularly so given the context mentioned above. [449] The fact that CO Perrin was visibly upset when she went downstairs to the Staff Room is supportive of what she said occurred in the Computer Room. CO Perrin, at the outset, was clearly upset about the existence of rumours that she and CO Vella had gone up front to speak with Superintendent Fitzgerald. It is readily understandable how the response she attributed to CO Esser, namely “it is somebody” and he would find out who, could lead CO Perrin to think he did not believe her denial. Further, I find it could likely contribute to her upset, as she had not been able to put the rumours to rest. This is particularly so given the adverse treatment she had already been receiving from colleagues at the Sarnia Jail following the incident. CO Perrin’s evidence, with respect to the content of CO Esser’s response, struck me as entirely believable and not the type of comment that would be fabricated. While CO Perrin may have been concerned about her upcoming interview with Inspector McNair, I have not been persuaded that such concern was the reason for her being visibly upset on the morning of October 6, 2011. As an aside, I think it would have been helpful to have heard from CO Nutt as to precisely what CO Perrin told her about what had occurred in the Computer Room. - 215 - [450] On the evidence, CO Perrin brought up her Occurrence Report while in the Computer Room. CO Esser maintained that, while he observed it was not long, he did not read it. I have been persuaded that he did, in fact, read the report. The words “stick to your report” said later in the Teacher’s Room or just outside of Video Court, is the type of comment that would suggest CO Esser actually read the content of the Occurrence Report. I note that a short Occurrence Report could still have been prejudicial to CO Dave Esser. I conclude that CO Dean Esser told CO Perrin to stick to her report because he knew that her Occurrence Report was short and, more importantly, that it did not contain anything to suggest CO Dave Esser used force in an improper or excessive way against the inmate in either the hallway or in the cell. [451] In his evidence, CO Dean Esser stated that he told CO Perrin, during their exchange near Video Court, not to be worried and to go into the CISU interview and tell the Inspector what she knew about the incident. This assertion, in substance, amounts to the polar opposite of what CO Perrin testified CO Esser told her to do. CO Esser’s evidence was given in cross-examination. When asked why he did not mention it in chief, he replied: “I guess I left it out”. This is hard to understand for, if accepted, the direction would constitute an almost complete defence to the instant allegation. I think it material that CO Esser did not communicate this information to Inspector McNair during the CISU interview. I conclude, after considering the evidence, that CO Esser did not provide this guidance to CO Perrin. [452] I accept that CO Perrin perceived that CO Esser’s comment, “stick to your report”, was spoken in a forceful manner and that it constituted a threat. On her evidence, she felt pressured to lie and to simply repeat what was contained in her - 216 - Occurrence Report, rather than fully report what she actually observed. I conclude that this type of subtle direction could reasonably be perceived as a threat given the context in which it was made and the presence of the COS at the Sarnia Jail. I am satisfied that, in the circumstances, an overt threat did not have to be made for CO Esser to make his point. I conclude that he knew, or ought to have known, that his words would be treated as a threat. Indeed, in view of my finding that CO Esser read CO Perrin’s Occurrence Report, I think he intended them to have that effect. I do not doubt that CO Perrin felt she was confronted with the options of remaining silent and thereby perpetuating the COS or breaching the COS and subjecting herself to potential adverse consequences for doing so. Regrettably, this is the type of insidious dilemma experienced by COs in CO Perrin’s situation. [453] As mentioned, the resolution of this grievance requires a credibility assessment. Generally, on the material issues, I found CO Perrin’s evidence to be believable. I question why she would fabricate her evidence about the exchanges. To do so would expose her to significant risk given the operation of the COS. Against this, CO Esser had a clear reason to concoct a version of events that would counter the allegation and place him in a good light. To put it bluntly, he likely thought that his employment was on the line. When considering the respective interests, it is clear that this grievor had the greater motivation to colour his evidence and misrepresent what occurred. I reject the Union’s suggestion that CO Perrin tainted her evidence in a deliberate effort to remove both CO Dean Esser and CO Dave Esser from the workplace. [454] CO Dean Esser and other Union witnesses engaged in what can be described as an all-out attack on CO Perrin’s credibility. I find that this endeavour was largely - 217 - motivated by the COS, as CO Perrin both witnessed the events in the cell and was the sole witness, on the Employer side, to the exchange with CO Dean Esser, which eventually resulted in his termination. While parts of CO Perrin’s evidence on certain collateral matters, which occurred well after the incidents here in issue, caused me some concern, I ultimately conclude that it is more likely than not that she accurately described the nature and content of her exchanges with CO Esser in both the Computer Room and later upstairs in the Teacher’s Room or near Video Court. [455] There is no doubt that a real and present need exists to eradicate the COS within the Sarnia Jail and, indeed, in all correctional facilities operated by the Ministry. The negative effects of the COS have been well documented in the jurisprudence. In this instance, I conclude that CO Esser engaged in serious misconduct in that he subtly attempted to perpetuate the COS and, in the process, to obstruct a CISU investigation. However, in this instance, I have not been persuaded that termination was the only option or that the workplace relationship was irreparably damaged. CO Esser is relatively young and, in my judgment, there is some potential to rehabilitate the employment relationship. As noted, his comment to CO Perrin, in the circumstances, was quite subtle and not as threatening as in some of the other reported cases. I have also considered the significant impact the termination has had on CO Esser and his family. As agreed between the parties, I have not documented evidence of this in the Decision. The parties further agreed, however, that I could consider this to be a mitigating factor, if appropriate. - 218 - [456] Ultimately, I have decided not to uphold the termination of CO Dean Esser. Pursuant to the further agreement of the parties, the following issues are left to the second phase of this proceeding: i) the appropriate remedy including, if applicable, what lesser penalty should be substituted for the termination; ii) whether CO Dean Esser should receive damages in lieu of reinstatement; and iii) whether CO Dean Esser should be reinstated to the Sarnia Jail or to some other location. Notwithstanding the above, I wish to stress that this disposition should not be treated as a condonation of the COS. It would be a mistake to do so, as I am satisfied that, generally, a CO who engages in actions consistent with the COS should be subject to significant discipline, if not termination. [457] Insufficient evidence was presented to establish that CO Dave Esser’s father-son relationship with CO Dean Esser was a factor in the Employer’s decision to terminate the latter’s employment. I conclude that the decision to terminate was a consequence of the Employer’s view of CO Dean Esser’s conduct on October 6, 2011. As mentioned earlier, the Employer believed that he attempted to intimidate CO Perrin to remain silent and not disclose all that she saw. From the Employer’s perspective, his conduct was intended to perpetuate the COS and to interfere with the course of a CISU investigation. I reject the submission that Superintendent Fitzgerald was trying to get back at CO Dave Esser through his son. I accept the Superintendent’s evidence that the father-son relationship between the two (2) grievors had nothing to do with his disciplinary decision. It follows that CO Dean Esser and CO Dave Esser are not entitled to the damages claimed. - 219 - [458] I have previously reviewed the evidence of CO Dave Esser, CO Dean Esser, CO Turner, CO Charrette, CO Mitchell and CO Vella concerning their impressions of the CISU interview process. I accept that Inspector McNair may have, at times, been aggressive, persistent and confrontational in his questioning of the witnesses. He also asked leading questions and challenged witnesses when he felt their statements did not accord with what he had already heard from other witnesses. I do not consider it inappropriate for an Inspector to pursue theories based on prior evidence and their preliminary impressions of what may likely have occurred. A CISU interview is not intended to be a pleasant and stress free experience. I have not been convinced that Inspector McNair’s initial suspicions amounted to a bias against CO Dave Esser. Similarly, I do not find that he was out to get either CO Dave Esser or CO Dean Esser. I note CO Vella’s evidence that, while she was somewhat critical of the way her interview was conducted, Inspector McNair did not push her to provide any information that was not truthful and accurate. [459] I cannot agree that the investigation conducted by Inspector McNair was deeply flawed, as claimed by the Union. In this regard, I reject the suggestion that he crafted the evidence in order to support a premature conclusion. I am satisfied that any flaws that did exist in the investigation were cured by this lengthy proceeding. Throughout, the Union has had a full opportunity to challenge Inspector McNair’s findings and to persuade this Vice-Chair to reach different conclusions about what occurred on August 31 and October 6, 2011. - 220 - [460] This Board has previously commented about the role or conduct of Inspectors in cases where the grievor was critical of their approach and final report. In Zolnierczyk, Vice-Chair Herlich commented as follows: “[29] In fairness, Inspector Graham conducted an investigation, not a quasi-judicial proceeding subject to the rules of natural justice or administrative fairness. And it is not my task, at least not directly, to assess the accuracy of the report. My principal task is to determine whether there was just cause to support the grievor’s termination. I make that determination on the basis of the relevant evidence before me, not on the basis of Inspector Graham’s findings. It is not surprising that such a detailed report may be the subject of some fair criticism, which, in and of itself, does not give me great pause. If I were persuaded that Inspector Graham’s report was not merely subject to some fair criticism, but so utterly unreliable that it had an improper impact on the employer’s decision-making, then it might be necessary to delineate and assess its faults and their impact much more fully. But while one might quibble with the approach and even some of the conclusions of Inspector Graham’s report, as will be seen, I find no fault in many of its essential findings- particularly those of relevance to my determination.” (page 6) See also Lavallee at paragraphs 136, 137 and 190. [461] I also do not accept that Inspector McNair and Superintendent Fitzgerald improperly lobbied the Crown Attorney to get the charges against the inmate dropped in a deliberate effort to disadvantage CO Dave Esser. Instead, I accept that the charges were withdrawn for the reason outlined in Ms. Foster’s letter to CO Esser dated March 13, 2012, namely, that there was no reasonable prospect of conviction. I find it somewhat surprising that CO Esser would suggest the Crown Attorney’s explanation of what occurred was “false”. [462] After assessing all of the evidence, I conclude that there is no entitlement to the damages claimed. - 221 - [463] In summary, the termination of CO Dave Esser is upheld. The termination of CO Dean Esser is not upheld. The parties will proceed to the second phase of this proceeding to address the outstanding issues with respect to CO Dean Esser. [464] I wish to acknowledge the able and professional way in which both counsel conducted this lengthy and very contentious case. I appreciate their efforts. Dated at Toronto, Ontario this 14th day of December 2015 Michael V. Watters, Vice-Chair - 222 - EXHIBITS 1 Grievance of Dave Esser, March 15, 2012 2 Grievance of Dave Esser, March 16, 2012 3 Grievance of Dean Esser, March 16, 2012 4 Letter of Termination re: Dave Esser, March 15, 2012 5 Letter of Termination re: Dean Esser, March 15, 2012 6 Occurrence Report of Dave Esser, August 31, 2011 (09:24) 7 Occurrence Report of Dave Esser, August 31, 2011 (14:15) 8 Adult Institutions Policy and Procedures-Occurrence and Offender Incident Reports, November 2008 9 Institutional Services Policy and Procedures Manual-Report Writing, October 23, 2012 10 Local Investigation Report re: Use of Force on Inmate A, August 31, 2011 11 Occurrence Report of L. Charrette, August 31, 2011 (09:51) 12 Occurrence Report of C. Turner, August 31, 2011 (09:52) 13 Occurrence Report of Sonya Perrin, August 31, 2011 (10:21) 14 Occurrence Report of Al Cameron, August 31, 2011 (10:30) 15 Occurrence Report of Al Cameron, August 31, 2011 (11:00) 16 Occurrence Report of Jaime Vella, August 31, 2011 (11:17) 17 Occurrence Report of D. Lucas, September 3, 2011 (06:28) 18 Occurrence Report of Jaime Vella, September 6, 201 (13:35) 19 Occurrence Report of C. Turner, September 6, 2011 (13:42) 20 Occurrence Report of Al Cameron, September 6, 2011 (14:33) 21 Occurrence Report of Jaime Vella, September 6, 2011 (15:51) 22 Occurrence Report of Al Cameron, September 7, 2011 (16:55) 23 Occurrence Report of P. Kitchen, September 8, 2011 (08:23) 24 Memorandum of P. Kitchen, September 8, 2011 25 Occurrence Report of P. Kitchen, September 8, 2011 (10:50) 26 Misconduct Report, August 31, 2011 27 Accident/Injury Report, August 31, 2011 28 Offender Incident Report, August 31, 2011 29 Notification of Right To Pursue Criminal Charges, August 31, 2011 30 Statement of Inmate, September 1, 2011 31 Occurrence Report of P. Kitchen, September 8, 2011 (09:10) 32 Transcript of Audio-Taped Statement of Inmate, September 7, 2011 33 Transcript of Audio-Taped Statement of Paul Kitchen, CISU Interview, January 11, 2012 34 Occurrence Report of P. Kitchen, October 20, 2011 (13:26) 35 E-mails of P. Kitchen to Ken Fitzgerald dated October 25 and October 26, 2011 36 E-mail of P. Kitchen to Ken Fitzgerald dated November 1, 2011 37 Occurrence Report of P. Kitchen, November 1, 2011 (14:15) - 223 - 38 Occurrence Report of P. Kitchen, February 6, 2012 (15:46) 39 Occurrence Report of P. Kitchen, February 16, 2012 (11:51) 40 Occurrence Report of P. Kitchen, February 17, 2012 (08:28) 41 Occurrence Report of P. Kitchen, March 6, 2012 (09:29) 42 Occurrence Report of P. Kitchen, March 6, 2012 (14:25) 43 Occurrence Report of Joel Bissonnette, March 6, 2012 (13:50) 44 Occurrence Report of Joel Bissonnette, March 6, 2012 (14:15) 45 Occurrence Report of Mike Bendikovic, March 7, 2012 (12:35) 46 Occurrence Report of Sonya Perrin, March 7, 2012 (14:00) 47 Occurrence Report of P. Kitchen, March 7, 2012 (14:35) 48 Occurrence Report of P. Kitchen, March 12, 2012 (12:43) 49 Occurrence Report of Joel Bissonnette, May 7, 2012 (15:29) 50 E-mail from Joel Bissonnette to Paul Kitchen, May 9, 2012 51 Occurrence Report of P. Kitchen, May 10, 2012 (15:54) 52 E-mail from P. Kitchen to Joel Bissonnette, May 10, 2012 53 Occurrence Report of T. Marshall, May 24, 2012 (15:04) 54 Occurrence Report of C. Trumble, May 24, 2012 (21:43) 55 Occurrence Report of P. Kitchen, June 6, 2012 (13:08) 56 Occurrence Report of P. Kitchen, June 7, 2012 (11:14) 57 Occurrence Report of C. Trumble, August 30, 2012 (11:37) 58 Occurrence Report of Joel Bissonnette, August 30, 2012 (14:06) 59 Occurrence Report of David J. Kyle, August 30, 2012 (14:37) 60 Section 22 of the Ministry of Correctional Services Act, R.S.O. 1990, c M22 61 Adult Institutions Policy and Procedures-Investigations under the Ministry of Correctional Services Act 62 Investigation Report of Steven McNair, February 2, 2012 63 Notes of Steven McNair 64 Audio recording of interviews in CD form 65 Transcripts of Audio-Taped Statements, 2 volumes 66 Memorandum from Steven McNair to David Esser, September 16, 2011 67 Memorandum from Steven McNair to David Esser, November 22, 2011 68 Memorandum from Steven McNair to Dean Esser, October 21, 2011 69 Memorandum from Steven McNair to Dean Esser, November 22, 2011 70 Interview Statement-Dave Esser, December 1, 2011 71 Interview Statement-Dean Esser, December 2, 2011 72 OTIS Client Profile for Inmate A, September 2, 2011 73 Training Record of David Esser 74 Witness Statement of George Viney 75 Occurrence Summary 76 Misconduct Report dated September 3, 2011 77 Misconduct Notice dated September 3, 2011 - 224 - 78 Emails between Ken Fitzgerald and Steve McNair, September 15, 16, 2011 79 Emails between Ken Fitzgerald and Diane Foster, September 23, 2011. Email between Ken Fitzgerald and Steve McNair, September 23, 2011 80 Emails between Ken Fitzgerald and Steve McNair, October 3, 2011 81 Emails between Ken Fitzgerald and Steve McNair, October 17, 2011 82 Email and Attachment, Ken Fitzgerald to Steve McNair, October 25, 2011 83 Email with Attachments, Ken Fitzgerald to Steve McNair, November 16, 2011 84 Emails between Ken Fitzgerald and Steve McNair, November 30, December 1, 2011 85 Emails between Ken Fitzgerald and Steve McNair, January 31, 2012 86 Emails between Ken Fitzgerald and Steve McNair, March 6, 2012 87 Emails of Sonya Perrin, Ken Fitzgerald, David Hatt, June 25, 2012 88 Emails of Sonya Perrin, Ken Fitzgerald, David Hatt, June 25, 2012 89 Greg Ireland-Statement of Qualifications 90 Use of Force Management Model 91 Defensive Tactics, Theoretical Concepts Lesson Plan 92 Defensive Tactics, Restraints Lesson Plan 93 Adult Institutions Policy and Procedures-Use of Force 94 Memo re: Carotid Restraint Technique dated November 13, 1996 95 Occurrence Report of Jaime Vella, January 28, 2012 (15:35) 96 Occurrence Report of Jaime Vella, April 20, 2012 (13:55) 97 Occurrence Report of Jaime Vella, June 10, 2012 (13:20) 98 Occurrence Report of Jaime Vella, September 13, 2012 (15:47) 99 Occurrence Report of Jaime Vella, September 13, 2012 (17:58) 100 Letter of Disciplinary Suspension of Jaime Vella, March 15, 2012 101 Overtime Availability for Jaime Vella 102 Hours of Opportunity Total 103 Occurrence Report of Sonya Perrin, December 21, 2011 (07:24) 104 Occurrence Report of Sonya Perrin, December 27, 2011 (08:26) 105 Occurrence Report of Sonya Perrin, January 17, 2012 (10:33) 106 Occurrence Report of Sonya Perrin, January 21, 2012 (12:30) 107 Occurrence Report of Sonya Perrin, August 14, 2012 (19:07) 108 Occurrence Report of Sonya Perrin, October 19, 2012 (21:50) 109 Email and Attachments from Sonya Perrin to Ken Fitzgerald, June 25, 2012 110 Email from Sonya Perrin to Ken Fitzgerald, June 25, 2012 111 Email from Sonya Perrin to Ken Fitzgerald, July 30, 2012 112 Email from Sonya Perrin to Ken Fitzgerald, June 26, 2012 113 Letter of Disciplinary Suspension of Sonya Perrin, March 15, 2012 114 Overtime Availability, Sonya Perrin 115 Disclosure for 2012 under the Public Salary Disclosure Act, 1996 116 Letter from Ken Fitzgerald to Sonya Perrin, October 27, 2011 - 225 - 117 Occurrence Report of Deb Lucas, December 1, 2011 (00:12) 118 Ministry of Correctional Services Act, Regulation 778 119 Excerpts from the Criminal Code, RSC 1985, c C-46 120 Sarnia Jail Standing Order-Use of Force 121 Adult Institutions Policy and Procedures Manual, Statement of Ethical Principles 122 Institutional Services Policy and Procedures Manual, Staff Conduct and Discipline 123 Memorandum from Ken Fitzgerald to Barry McDonnell, September 2, 2011 124 Memorandum from Ken Fitzgerald to All Managers, August 30, 2011 125 Notes of Meeting Between Ken Fitzgerald and Al Cameron, September 7, 2011 126 Emails between Ken Fitzgerald and Dave Esser, October 13 and 18, 2011 127 Email & Attachments from Dave Esser to Madeleine Meilleur, December 21, 2011 128 Emails between Dave Esser and David Hatt, January 26 and 31, 2012 129 Email between Dave Esser and Ken Fitzgerald, February 19, 2012 130 Emails from Dave Esser and Ken Fitzgerald, March 5 and 6, 2012 131 Email of Dave Esser and Attachments, March 30, 2012 132 Notes of Ken Fitzgerald of the Allegation Meeting of March 2, 2012 and attached materials 133 Email of Ken Fitzgerald, October 20, 2011 134 Occurrence Report of M. Macklin, January 6, 2012 (16:24) 135 Notes of Ken Fitzgerald of meeting with Jaime Vella on February 2, 2012 136 Notes of Ken Fitzgerald of meeting with Sonya Perrin on March 23, 2012 137 Notes of Ken Fitzgerald of meeting with J. Mitchell on May 29, 2012 138 Occurrence Report of M. Bissonnette and J. Parr, August 27, 2012 (15:15) 139 Occurrence Report of Joel Bissonnette, September 11, 2012 (13:21) 140 Memo dated August 16, 2013 from Deputy Minister of Correctional Services to All Correctional Services Staff re: The Code of Silence 141 Excerpts from Ombudsman’s Report re: The Code of Silence 142 Emails of Dean Esser and Ken Fitzgerald, January 12, 2011 143 Email between Ken Fitzgerald and Dean Esser, January 6, 2011 144 Emails between Dean Esser and Ken Fitzgerald, June 29, 2011 145 Letter from Eduardo Almeida to Ken Fitzgerald, April 28, 2011 146 Emails re: Pay for Presidents off on leave 147 Letter from Ken Fitzgerald to David Esser, July 12, 2011 148 Emails from Dave Esser re: Payment of Unclassified Officers; Memorandum of Settlement dated January 10, 2012; Appendix COR 10 149 Emails re: Fecal and asbestos matter dripping into the front office 150 Ministry of Community Safety and Correctional Services Training 151 Defensive Tactics Theoretical Concepts, COTA Program 152 Monthly Overtime Hours, Sonya Perrin 153 (a)(b)(c)(d)(e)(f) – Incident Reports of Dave Esser 154 Letter from Dave Esser to Diane Foster, February 29, 2012 - 226 - 155 Email from Dave Esser to Ken Fitzgerald, February 23, 2012 156 Letter from Gail Solomon to Dave Esser, December 12, 2012 157 Email from Dave Esser to Gail Solomon, December 28, 2012 158 Emails re: WDHP and Bill 168 159 Letter of Suspension from Ken Fitzgerald to Dean Esser, October 19, 2011 160 Emails of David Esser and Ken Fitzgerald 161 MERC Terms of Reference 162 Ministry of Labour Field Visit Report, December 19, 2011 163 Occurrence Report of T. Marshall, August 27, 2012 (15:32) 164 Emails re: Allegations against Joel Bissonnette regarding J. Vella, July 13, 2012 165 Occurrence Report of Joel Bissonnette, February 13, 2013 (13:35) 166 Correctional Services Mediator Network Participant Mediation Agreement 167 Notes of Cindy Plain re: Meeting of March 7, 2012 at Sarnia Police Station 168 Videotape Synopsis of Cindy Plain 169 Occurrence Report of Cindy Plain, October 21, 2013 (15:10) 170 Occurrence Report of Cindy Plain, November 26, 2013 (20:00) 171 Notes of Cindy Plain re: Meeting with P. Wright on December 4, 2013 172 Thank you card from Sonya Perrin. Kitchen and K. 173 Standing Orders, Supervising inmate interactions with Health Care Staff, December 12, 2013 174 Letter from Kimberly Wright to Cindy Plain, December 23, 2013 175 Email from Cynthia Plain to Kimberly Wright, December 30, 2013 176 WDHP Complaint of Chelsea Trumble dated August 31, 2012 177 Letter of Termination re: Charles Turner, March 15, 2012 178 Ken Fitzgerald’s notes of Allegation Meeting with Charles Turner, March 1, 2012 179 Memorandum from Steven McNair to Charles Turner, September 16, 2011 180 Memorandum from Steven McNair to Charles Turner, October 5, 2011 181 Memorandum from Steven McNair to Charles Turner, October 14, 2011 182 Sign-off sheet-Interview Statement of Charles Turner, October 21, 2011 183 Conclusion of Statement of Charles Turner, October 21, 2011 184 Memorandum from Steven McNair to Lindsay Charrette, September 16, 2011 185 (a)(b) Memorandums from Steven McNair to Lindsay Charrette, October 5, and October 14, 2011 186 Interview Statement re: Lindsay Charrette, October 26, 2011 187 Memorandum from Steven McNair to Lindsay Charrette, December 2, 2011 188 Interview Statement re: Lindsay Charrette, December 13, 2011 189 Misconduct Notice 190 Inmate Notification of Misconduct Disposition 191 Allegation Letter of Ken Fitzgerald to Dean Esser, February 24, 2012