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HomeMy WebLinkAbout2014-4668.Gour.16-03-08 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#2014-4668 UNION#2015-0411-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Gour) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Gail Misra Vice-Chair FOR THE UNION Jane Letton Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Omar Shahab Treasury Board Secretariat Legal Services Branch Counsel HEARING May 27, 2015; February 3, 5, 10, 12 and 19, 2016 - 2 - Decision [1] This is a termination grievance filed by the Union on behalf of Patrick Gour (the “grievor”), a Corrections Officer (“CO”) who worked at the Ottawa Carleton Detention Centre (the “OCDC”). The remedy sought is that the grievor be made whole. [2] On February 25, 2015 Mr. Gour was dismissed from his employment with the Ministry of Community Safety and Correctional Services (the “Ministry”) for an incident that had occurred on May 9, 2014. In a lengthy and detailed letter of termination the Employer maintained that the grievor had violated a number of Ministry policies when he used excessive force against an inmate; failed to file complete reports of the incident; and, failed to conduct himself in a professional manner thereby breaching the standards of professional behaviour for Correctional Officers. [3] In the course of the hearing Maureen Harvey, the OCDC Superintendent, and Neil Hunt, a Sergeant and certified Use of Force instructor, testified on behalf of the Employer. The grievor and Denis Collin, the President of the Local, testified on behalf of the Union. Background: [4] The Ottawa Carleton Detention Centre is a maximum-security detention facility located in Gloucester. It is a holding facility for inmates awaiting court disposition. Once sentenced, an offender would be moved to another provincial or federal institution. The OCDC is divided into wings, and on each wing there are units. Each unit is comprised of two sides, with 12 cells on each side, each containing 2 beds. As such, there are 48 inmates in each unit. [5] COs are sworn peace officers. They are responsible for the care, custody, and control of offenders who are in the institution. Since offenders lose all autonomy - 3 - in an institution, they are reliant on a CO for their medications, food, health care, access to medical professionals, going to court, having family visits, professional visits, and video remand. [6] Patrick Gour was hired as a Correctional Officer on or about July 21, 2003. He had an unblemished disciplinary record by the time of the incident that led to the termination of his employment after 12 years of service. As a CO, the grievor had only ever worked at the OCDC. He had received two commendations during his tenure in Corrections, the most recent in October 2011. [7] The grievor’s training record indicates that after his initial training at the Ontario Corrections College when he was hired in 2003, he received ongoing training and refresher courses regarding such matters as Emergency First Aid, CPR, COPD, Suicide Awareness, and so on. He also received regular refresher training on Defensive Tactics (2009, 2010, 2011, 2012 and 2013). The latter training was generally in relation to Escort Recertification, and in both 2012 and 2013 that was training of more than one day’s duration as multiple modules and practice days had to be completed. The grievor testified that 85% of the time in the Defensive Tactics – Escort Recertification training days was spent on learning how to deploy pepper spray and a baton, and the remainder of the time was on building skills for communication with inmates. [8] Neil Hunt testified at length regarding Defensive Tactics training in general, and the specific training that he had provided to the grievor in 2013. Mr. Hunt has been a Sergeant (Operational Manager) since September 2015, but had previously been a CO for 7.5 years at the OCDC. He had qualified as a Use of Force Instructor in 2013, and was a member of the OCDC Institutional Crisis Intervention Team (“ICIT”). He has recently become the ICIT Coordinator for the OCDC. ICIT is a crisis intervention team trained to bring a peaceful resolution to crises in the institution, using only disciplined use of force. Mr. Hunt has training and certification in order to teach de-escalation techniques, as do four other - 4 - trainers at the OCDC. It was in his capacity as a certified trainer that Hunt testified in this proceeding. According to Hunt, use of force and de-escalation training fall under the umbrella of Defensive Tactics training, which the grievor received most recently before the incident in October 2013. Hunt and Sean Davies were the trainers for the October 21, 2013 training that the grievor took. In the course of the training, in each module the grievor was taught about tactical communications, whether as part of expandable baton deployment or take down training or the use of pepper spray. [9] Mr. Hunt was cross-examined about the fact that the Defensive Tactics training that Mr. Gour had received in 2013 was related to Escort Recertification, which is for use outside the institution. However, in re-examination Mr. Hunt reiterated that the techniques taught are for use both inside and outside the institution. They are defensive techniques for use as needed. [10] In addition to the regular Defensive Tactics training the grievor took in the last number of years, he would have received tactical communication training when he was first hired and trained for the job at the Ontario Corrections College. Officers are taught to assess, plan and act having regard to the situation they are faced with. They are trained to constantly assess and de-escalate a situation. [11] In March 2014 the grievor signed the OCDC’s Use of Force Policy Acknowledgement Form, and there is no dispute that he was aware of the Ministry’s policies in respect of the use of force when dealing with inmates at correctional institutions. [12] In March 2013 the grievor had completed a Correctional Officer Report Writing course. - 5 - The Incident: [13] On May 9, 2014 the grievor was working a 12-hour shift from 6:45 a.m. to 6:45 p.m. CO Ryan Doyle was the 2 Wing officer on the shift, and the grievor was his partner and the 2 Wing Back Up officer to Doyle. A video recording of the incident that led to the grievor’s dismissal was made an exhibit. While the recording, made in the staff walk area, has camera footage, it does not have a sound recording. [14] From the 2 Wing Sally Port video camera recording of the incident, at around 1:58 p.m. a male inmate in an orange jumpsuit is seen entering the staff walk corridor from the sally port direction and casually standing around with his back to the camera as he appears to be watching the door through which he had entered. CO Doyle then enters the staff walk and is seen speaking to the inmate. No one else appears to be in the area. The inmate stands casually at first, then he makes a hand gesture as though pointing at something, and begins to pace around in front of CO Doyle. At 1:59:38 or thereabouts the grievor is seen entering a doorway behind the corridor, and standing back in an antechamber behind Doyle for a few moments. [15] The grievor testified that he was sitting in the sally port on the day in question. He heard raised voices and went to a door into the staff walk area. According to the grievor, he heard the inmate tell Doyle that he would “f--- him up” and that he was a “goof”. The grievor observed the inmate began to pace and that the inmate was grabbing at the cloth of his pants. The grievor took this to mean that the inmate was being both physically and verbally aggressive with his partner, CO Doyle. According to Neil Hunt, the Defensive Tactics trainer, pacing is a sign that a person is feeling irritated, and balling up fists is an indication that the person is agitated. He did not testify about whether grabbing at one’s own clothing is a sign of agitation or not, but it may be noted on the video recording that the inmate was using his hand to bunch up his jumpsuit in the thigh area as he paced. - 6 - [16] According to the grievor the inmate was a federal inmate, about 6’ 2” or 6’ 3” tall, and approximately 250 lbs. with a muscular build. One of the documents put in evidence noted the inmate was 6’ 2” tall, weighed 209 lbs., and was of medium build. He appears to have been taller than the grievor. [17] At about 2:00 p.m. Doyle is seen on the video using his outstretched arm to apparently guide the inmate backwards further into the corridor, where the two men continue to stand at arm’s length while a conversation seems to be going on. According to Mr. Gour, when he saw Doyle use his outstretched arm and hand to move the inmate further into the staff walk, he believed that the aggression level had gone up and that the inmate was not being compliant. Gour is seen on the video pushing the door of the staff walk wider open, and entering the staff walk area to approach the inmate at this point. [18] According to the grievor, he moved in closer to the inmate when the inmate told Doyle to open his cell, and that there were no cameras there, which the grievor took to be a threat. Doyle was allegedly telling the inmate to turn towards the wall. The grievor is seen on the recording coming up to the inmate, pointing his finger at him and it appears speaking to him in a loud voice. However, the grievor states that he was speaking in a normal, calm tone of voice, and was telling the inmate to turn his head, face the wall and to be quiet. [19] Neil Hunt testified that when dealing with a verbally abusive inmate, the expectation is that a CO will use verbal communication to de-escalate the situation; will try to remove the inmate from an audience of other inmates; the CO will remain calm and respectful, and will assess and evaluate the situation. The CO is expected to address the inmate’s issue, see if it can be resolved, let the inmate know what will happen, and how their issue will be resolved. That is the de-escalation training that all COs receive, including the grievor. - 7 - [20] From the video recording it is apparent that after the grievor gave him direction, the inmate followed Mr. Gour’s direction, and is seen standing facing the wall, with his hands behind his back, so that they were in full view of the two COs. The inmate did however appear to still be speaking to the officers, and was turning his head to the left, in their direction, in order to do so. Doyle stood the whole time at arm’s length from the inmate, with his arm outstretched so that it appears that he had his fingers at or on the inmate’s left shoulder, and in a bladed stance, which as will become clear later, was consistent with the defensive tactics training that COs receive. The grievor is seen standing behind the inmate with his left hand at his side, and his right hand in the pocket of his trousers. [21] According to the grievor, he had stepped in and given verbal commands to the inmate as soon as he entered the staff walk area because he thought that the inmate was not following Doyle’s order, and that he may cooperate with Gour. He testified that when the inmate did not follow his direction either, he stepped in “closer proxemics” and repeated his directions again. He told the inmate to be quiet and to face the wall. [22] Mr. Hunt testified that when a CO uses verbal de-escalation with a verbally abusive inmate who is not physically threatening, and the de-escalation does not appear to be working, then depending on the situation, COs are taught to disengage. This entails stepping back, reassessing, and planning. It may mean leaving the inmate locked in an area until he calms down, and reporting to the Area Manager so s/he can approach the inmate to see if they can resolve the issue. [23] According to the grievor, the inmate said “f--- you, goof”, which the grievor took as showing that the inmate was verbally non-compliant because he would not stop talking. At this point on the video, at about 2:00:19, the grievor is seen moving in on the inmate on the inmate’s left side and he appears to be speaking to the inmate with a snarl on his face. As he moved in on the inmate, the - 8 - grievor’s left hand disappears from view, but his right is still seen in his pocket. According to the grievor, he moved in closer to the inmate, and told him that they were giving him an order, to face the wall and to be quiet. The grievor at first testified he was still speaking in a normal voice, but when asked again later in examination in chief about the tone he used, he testified that after the second or third time he used a slightly louder tone of voice, but was not yelling. However, from the video it would appear that Mr. Gour was angry and it seems unlikely that he was using a normal or even slightly elevated tone of voice. I find that the grievor was not being completely honest when he testified about the tone of voice he used in his interactions with the inmate in this incident. [24] Mr. Hunt testified about the training that Mr. Gour received regarding how to diffuse hostility. COs are taught not to lose control of the situation during verbal de-escalation. They are trained to recognize that an inmate becomes angrier if an officer invades the normally comfortable conversational distance of 18 to 30 inches apart. A CO is trained to maintain an arm’s length distance from the individual, as anything closer will mean an invasion of the inmate’s personal space. As well, the CO is trained to be at arm’s length when speaking to an inmate so that the inmate can, for safety reasons, be observed from head to toe. [25] Throughout this period of time, the inmate can be seen on the video recording standing facing the wall, with his hands behind his back, but turning his head to the left and speaking to the COs. The grievor is seen moving closer to the inmate on the side from which the inmate was turning his head and speaking, and by his physical presence, the grievor appears to cause the inmate to start pivoting around, towards the grievor, so that the inmate’s back was then against the wall. Nonetheless, the inmate continued to have his hands behind his back. At about 2:00:26 the grievor appears to continue to speak to the inmate in an aggressive manner, and by this point has his stomach pressed up against the inmate’s chest and abdominal area. His shoes are almost toe-to-toe with the inmate’s shoes. - 9 - [26] The grievor testified repeatedly that while he had got close to the inmate, he did not believe he had touched the inmate with his stomach, and that the problem was the camera angle. I do not accept the grievor’s evidence in this regard, and find that even in the face of the video recording which Gour had reviewed on numerous occasions, that he was not being truthful. It was obvious from the manner in which the inmate’s clothing was pressed inwards that the grievor was pressing himself against the inmate and was right up against the man, who he had backed up against the wall. [27] There is no evidence before me as to why it was necessary for the grievor to have to get the inmate turned around and facing him when the inmate had been compliant in facing the wall as he had been ordered to do, and had his hands behind his back in the officers’ plain sight. It is noteworthy that CO Doyle continued to maintain an arm’s length distance from the inmate throughout this time, but by this point it appeared that he had both his arms outstretched and his fingers appear to be touching the inmate’s right shoulder. [28] According to the grievor the inmate repeatedly threatened the officers by telling them that they were “goofs” and that he would “f--- us up”. The term “goof” allegedly means “child molester” in prison jargon. The grievor claims he told the inmate to start cooperating and to face the wall. From the video recording it is difficult to see how the inmate could have turned around and faced the wall when he had originally been facing the wall, had been maneuvered around by the grievor, and was at that point pinned by the grievor’s stomach and chest against the wall. [29] The grievor testified that he got in so close to the inmate because he thought that would be a method of “tactical communication” that would get the inmate to comply. From the grievor’s perspective the problem was that the inmate had continued to be verbally abusive to the officers, and would not stop talking even though Gour had repeatedly told him to do so. I find that the grievor had no reason, other than his own apparent anger and frustration that the inmate would - 10 - not stop talking, to escalate the situation by forcing the inmate to face him, and he further had no reason to push the inmate against the wall with his stomach and to speak aggressively in the inmate’s face. [30] Mr. Hunt testified that based on his expertise as a Defensive Tactics trainer, and his background as a CO, it would be a use of excessive force to use one’s stomach to touch a compliant inmate. He testified that force can never be used to punish an inmate, nor in a situation where the inmate is not showing any signs of being about to assault anyone. [31] In cross-examination the grievor claimed that he had got so close to the inmate because although it is not a Ministry-approved technique, he had been told during training that the closer one is to the inmate, the less injury one will suffer if hit. This proposition was never put to Mr. Hunt, and there is simply no evidence to support the grievor’s assertion that trainers told him that was what he should do. [32] The grievor conceded in cross-examination that throughout the incident he had not used any of the verbal de-escalation techniques for which he had been trained. He had not asked the inmate what was wrong when he first came into the staff walk or at any point thereafter. Even when the inmate had his back against the wall, Mr. Gour conceded that he had used “louder tac comm” (tactical communication), rather than speaking in a calm voice. Only in cross-examination did he admit that he had had no reason for doing so, and that it had been a mistake. [33] The grievor admitted he was “a little angry” because he was giving the inmate orders, but the inmate was not cooperating and was threatening the officers even more. Mr. Gour admitted in cross-examination that he could and should have ignored the verbal abuse, which would have been consistent with the de- escalation training he has received, but he saw it as the inmate refusing to - 11 - comply with orders Gour was giving, and that the loud interactions were drawing attention from other inmates in the area. [34] At the point that the grievor had the inmate pinned to the wall the video shows another officer entering the staff walk from the opposite direction and coming towards the two COs and the inmate. The grievor’s face was close to the inmate’s at this point, and it appears that the inmate then spat in the grievor’s face. From the video recording one sees the grievor recoil, put his right leg back, and stretch his arms out in the direction of the inmate’s head. [35] One of the grounds for termination was that the Employer believed that the grievor slapped the inmate at this point, and then tried to punch him in the head, but missed. The grievor denies that he slapped the inmate, or that he tried to take a punch at him. Mr. Hunt testified that it could be deemed an excessive use of force for a CO to use his open hand to strike an inmate in the head, face or neck area. He further testified that a closed fist punch to the head or neck area would never be taught as a defensive tactic. [36] What occurred after the inmate spat on the grievor went very quickly. There was a scuffle, and within seconds there were about five or six officers on the inmate, and he was somewhere under them on the ground. [37] The video recording appears to show that in the first milliseconds after the spitting, the grievor brought both his hands up towards the back of the inmate’s head and neck. According to the grievor, he was attempting to pull the inmate to the ground. [38] When reviewing the video, the grievor testified that the inmate’s right hand could be seen in the air behind Mr. Gour. Gour asserts that it looks as though the inmate was going to strike him in the ribs or stomach area. From my review of the video, it looked more as though the inmate was simply trying to maintain some semblance of balance as he was sliding or being pulled to the ground. The - 12 - inmate’s hand was open, not closed as if to strike the grievor anywhere, and his left hand was by his side. [39] At that point, the grievor put his right hand behind the inmate’s neck, but his left hand appears to be in a fist, slightly raised at the shoulder, and appears as though he was going to strike the inmate. The grievor’s feet look as though his right foot was behind him, and his left foot was extended in the inmate’s direction as though the grievor was lunging in that direction. [40] According to the grievor during his examination in chief, he was putting out his hands to get a grip on the inmate’s head or neck in order to bring him to the ground. He testified that his left hand slipped off the inmate’s neck, and because the grievor believed that the inmate was going to hit him, head butt him, or spit at him again, he says he brought up his left arm to block the inmate from either assaulting the grievor or spitting on him again. The grievor maintains that he was still attempting to get the inmate down to the ground, and the fact that his hand is seen in a fist is totally unintentional, that his hand just happened to be closed. He testified that until he had seen the video for the first time at the second investigation meeting, he had not known that he had formed a fist at all. [41] Mr. Hunt was asked in cross examination whether when an individual throws a punch, the person would lean in with their body in the direction of the punch, and he responded that depending on the size of the person, there would be some upper body movement, and the person’s momentum when throwing the punch would take them in the direction of the punch. [42] The grievor conceded that in his attempt to bring the inmate down, he did not use the techniques in which he has been repeatedly trained by the Employer. Gour testified that he had been taught that he had to be standing in a bladed position to be successful, but instead he was directly in front of the inmate. The grievor calls the position he was in “not a perfect world”, and states that once he was - 13 - spat on, his instinct was to try to take the inmate down as quickly as he could to prevent a further assault. [43] As a trainer in defensive tactics Mr. Hunt testified that COs cannot simply use any technique they want: he stated that was the point of having Ministry- approved standards for defensive techniques, and for training staff in the use of those techniques. No offensive techniques are taught at all and no technique including a closed fist is taught. The CO is trained to be in a neutral stance, at arm’s length from the inmate. The neutral stance is when one has one foot in front of the other, in an interview stance, standing at a 45 degree angle to the inmate, a stance that is also known as being in a 1.5 position or being in a bladed position. Then one can step forward to defend against an inmate punch or hit, using the forearm to deflect the blow; one can at the same time use the other hand open-faced to push at the inmate’s abdomen area to create space, and then step backwards so that the CO is out of range. [44] Mr. Hunt also testified that open-handed techniques are taught only to create a distraction: in that case the training is to use the back of the open hand on the inmate’s cheek. This distractive technique is based on Aikido and Jujitsu, and is designed to create some lag time in which the inmate will raise his hands, which allows the CO to get the person’s arms and bring him down. There is no defensive technique taught involving the fleshy part of the hand against an inmate’s face. All the grounding techniques taught are based on arm manipulation so that the inmate’s body is in a forward motion and it is easier to get them to the ground quickly. COs have a self-defence practice day as part of the Defensive Tactics course, and before they are tested on the use of the techniques, so that they can practice these moves repeatedly. The grievor had one such day on May 22, 2012. [45] However, Mr. Hunt conceded that while COs are not taught to bring an inmate down using a hold near the neck or head area, and they are in fact taught not to do that, he said it was not a perfect world, and there could be a struggle in which - 14 - an inmate may jerk, and a CO’s arm may end up on the inmate’s head by accident. He admitted that they teach the techniques in a controlled environment, and that when an officer has to use the technique, it may not always go the way it should. [46] The evidence in this case was that after the officers got the inmate to the ground, a spit hood was applied to his head to ensure he would not spit on anyone else, and he was escorted out of the area. There is no dispute that neither the inmate nor any officers were injured in the course of this incident. [47] After the incident Sergeant Riche told the grievor to write his report of the incident. However, prior to doing so the grievor went to wash his face to remove the spit, and he then went to the nursing station to ask whether he should go to the hospital. He was told there was no danger from having been spat upon as the inmate was “clean”. Mr. Gour then went to write his report. [48] The grievor was shown notes made by employer representatives at the first investigation meeting held on August 21, 2014 with Mr. Gour regarding this incident. He agreed that the notes seemed to be accurate. The grievor was asked in his examination in chief why he had indicated in that investigation meeting that if he could have de-escalated the situation, he would have, but that he could not as it was not safe to do so. Gour testified that he did not feel it was safe to try to disengage with the inmate because the two officers were in the staff walk with the inmate; that Gour felt scared of the inmate; and he felt that the inmate would “definitely have the upper hand if a fight would have occurred”. The grievor stated that had he stepped back he felt that the inmate would have launched himself at Gour. He conceded in cross-examination that he had said in the first investigation meeting that if there had been any other option, he would do things differently, but he maintained at the hearing that he thought he had done what he believed to have been correct. - 15 - [49] The grievor testified that he had got close to the inmate because he was scared of him, but felt that if he was in “close proxemics” to the inmate, he could avoid being hit and would therefore be in less danger. [50] The second investigation meeting was held with the grievor on September 25, 2014, and at that time he was shown the video recording of the incident, with a focus on the part of the recording where the Employer believes Mr. Gour was trying to punch the inmate after the spitting had occurred. At that meeting the grievor conceded that he had no recollection of having clenched his fist after being spat upon. He noted that things had happened so quickly at that point that he had not recalled that particular action at all. He noted that in twelve years as a Corrections Officer he had never punched an inmate, and asked why he would do so now; why he would jeopardize his career. He indicated that his goal had been to take the inmate down after he had been spat upon. It was never his intention to punch the inmate. [51] When the grievor was asked at the hearing what he would do differently if faced with a similar situation again, Mr. Gour responded that if he saw an inmate being highly aggressive with his partner he would radio or call the sergeant to the area, and would then move into the staff walk to show a staff presence. He would have kept his distance from the inmate. [52] Maureen Harvey has been the Superintendent of the OCDC since February 2013. She has extensive experience in Ontario correctional institutions, having started in 1986 as a Correctional Officer. She was a CO for eleven years before she began to move up through the management ranks. [53] Ms. Harvey made the decision to dismiss the grievor from his employment. While she herself did not participate in the investigation of the incident that led to Mr. Gour’s dismissal, she spoke to the investigators, reviewed the many reports and notes that were provided to her, reviewed the video recording, and reviewed the relevant policies in reaching her decision. - 16 - [54] The Superintendent received both verbal and written reports of the investigation meetings from Nancy Dew, Human Resources Advisor, and Mike Wood, Deputy Superintendent, Information Management at the OCDC. As noted earlier, the grievor did not disagree with the content of the notes that had been made by Ms. Dew and Mr. Wood at the August 21, 2014 investigation meeting. What is noteworthy about the meeting is that in both sets of notes the grievor is recorded as indicating that at the time he would not have done anything differently, and that if he could have, he would have de-escalated. He stated that he tried to diffuse the situation but that it had not worked, and that there was no option to disengage. [55] The Employer’s notes of the September 25, 2014 meeting, which Ms. Harvey reviewed, indicate at the top of the first page that the grievor was “very remorseful”, “no intent”, and “did not realize”. As noted above, at that meeting the grievor was shown the video recording for the first time, and was asked about having made a fist during the scuffle after being spat upon. The grievor repeatedly indicated he had not realized he had made a fist during the grounding, and that he never intended to punch the inmate. [56] Ms. Harvey also reviewed the Use of Force Local Investigation Report (“Local Report”) of the incident. The Local Report includes among other documents the Inmate Incident Report, the Use of Force Occurrence Reports, and the Addenda to the Use of Force Occurrence Reports. [57] Part of the Local Report prepared by the Investigating Manager, Michael McMahon, noted that Mr. Gour had walked towards the inmate and had bumped him with his chest multiple times, which was not a Ministry approved technique. It also noted that while force was justified after the inmate spat on the grievor, there was a concern that the grievor had swung with his closed fist at the inmate even though the grievor had checked his motion and the punch did not connect with the inmate. The writer of the Local Report concluded that given the nature - 17 - of the inmate’s assault on the grievor, and the fact that the grievor had pulled his punch before making contact with the inmate, any concern about that action had been alleviated. The Local Report noted that the officers should have considered the option to disengage as the situation escalated. [58] The McMahon part of the Local Report wherein he found that the Use of Force policies and procedures had not been followed during the incident stated as follows regarding Mr. Gour: CO Gour engaging the inmate into a verbal discussion and getting in close proximity of the inmate. CO Gour bumped the inmate chest to chest multiple times and brought the inmate against the wall with his chest. During discussion CO Gour [placed] his face at close proximity to the offender’s face and also the opportunity to possibly disengage [sic]. As such, the Local Report found that the Ministry standards as articulated in the policies and procedures regarding Use of Force reports had not been followed. [59] The Investigating Manager noted there had been numerous times when Gour and Doyle could have disengaged with the inmate, but had not done so. The report noted as follows: Mr. Gour also stated that [they] were unable to disengage but the video shows that no attempt was made and in fact Mr. Gour invaded the inmate’s personal space thus causing a further issue. At NO time did the inmate raise his hand and at one point was at position of disadvantage and the video shows that the inmate had his hands behind his back, contradicting reports that were submitted. (Emphasis in original) - 18 - [60] Ms. Harvey also relied upon a written review prepared by the Correctional Services Oversight and Investigations (“CSOI”) unit, which is external to Corrections, but which reviews use of force allegations. The Superintendent testified that after the local investigation is completed, it goes to the CSOI Field Auditor for further review, and that process occurs directly with the Regional Office. The January 19, 2015 CSOI Review was provided to the Regional Director, Eastern Region, Ms. Marilyn Tomkinson, who is Ms. Harvey’s superior. That Review had been prepared by Tony Hill, a CSOI Use of Force Auditor, and was designed to provide the Superintendent with an assessment of the use of force response by staff based on Hill’s review of the supplied video and documentation. [61] The Review noted that the grievor’s report that the inmate had been yelling and pacing towards the two officers had not been observed on the video. Mr. Hill stated in the Review that at 2:00:17 the grievor had moved into close proximity with the inmate where his abdomen made contact with the inmate’s left elbow. It also noted that at 2:00:17 Gour had used force when he stepped directly in front of the inmate and bumped him with his stomach, and then again when he stepped directly in front of the inmate who was backed up against the wall, and the grievor pressed his stomach against the inmate with their faces almost touching. After the grievor was spat upon, the Review noted that at 2:00:27 Mr. Gour used force when he struck the right side of the inmate’s face or head with an open left hand, and that he then threw a punch towards the inmate’s head using his left hand, but that the punch did not make contact with the inmate. The Review concluded that the grievor’s use of his stomach to bump and press the inmate against the wall as well as the strike to the inmate’s face with an open hand were unnecessary and therefore excessive in the circumstances. [62] In the Superintendent’s view, Gour had used excessive force in his dealing with an inmate who was in a position of disadvantage, which she described as complying with direction, facing the wall, with his hands behind his back. That was the point at which in Ms. Harvey’s view the officers could have moved away - 19 - safely, rather than what the grievor did, which was to move in closer to the inmate. She had considered that the CSOI report indicated that the grievor had hit the inmate with an open hand, and had attempted to punch the inmate, neither of which was an approved Ministry defensive technique taught to a CO during their Defensive Tactics training. [63] It is noteworthy that when the Superintendent first reviewed the Local Report, there was no reference to the grievor having slapped the inmate with his open hand. As a consequence, the local investigators had not asked the grievor about whether he had slapped the inmate. There is no report to that effect from anyone at the OCDC, including the inmate. It was the CSOI Review that noted that action from its review of the video. [64] In Ms. Harvey’s original Action Plan, which forms part of the Local Report, she had indicated on August 28, 2014 that the grievor would be disciplined with a five-day suspension without pay for his part in the May 2014 incident. However, the final Action Plan for the Local Report notes that on February 25, 2015 Mr. Gour’s employment was terminated. Frank Nolet signed that document on March 5, 2015. It is unclear what position Mr. Nolet held, or who he was. [65] When cross-examined about the five-day suspension notation, Ms. Harvey agreed that at that juncture she had thought that would be an appropriate penalty. She conceded that by that point the local Risk Management Team, comprised of two Investigating Managers, the Security Manager, and the Superintendent Designate, had reviewed all the reports and the video recording relating to the incident. [66] As a result of the CSOI Review, which did not issue until January 19, 2015, in consultation with the local institution, the decision was reached that termination was warranted in light of the CSOI Review report regarding the open handed slap and the missed punch (in addition to the stomach bumping of the inmate by the grievor). - 20 - [67] Ms. Harvey also considered the relevant sections of the Institutional Services Policy and Procedures Manual. This is a Manual available to all correctional staff in correctional institutions across Ontario over the Ministry’s intranet. Standing Orders are taken from the Manual and are incorporated into the policies and procedures in the local institution. The Standing Order regarding the Use of Force was in effect at the OCDC at the time of the incident, and at the time of the grievor’s dismissal. The Superintendent testified that on May 10, 2013 a memorandum had issued to all staff at the OCDC, including the grievor, advising staff that the Standing Orders had been updated, and telling staff all the places where both hard copies and intranet versions could be found. [68] The Use of Force policy and procedure is a detailed document establishing the principles and guidelines for the use of force on an inmate by correctional services institution employees. As well, it outlines the procedures for reporting use of force incidents. [69] Ms. Harvey noted that on March 25, 2014 Mr. Gour had signed a Use of Force Policy Acknowledgement Form in which he indicated he had received a copy of the revised Use of Force Policy (December 4, 2013 version); that he was responsible for reviewing the revised Use of Force Policy, and that he was responsible for adhering to all procedures and responsibilities as set out in that revised Policy and the related documents. [70] In reaching the decision to dismiss the grievor from his employment, the Superintendent had considered what options had been available to the grievor. Mr. Gour could have employed the verbal de-escalation techniques of speaking softly and calmly to the inmate; had that not worked, the officers could have disengaged and left the inmate in the staff walk or the sally port, and called their Operations Manager. The Manager could have tried to defuse the situation using verbal de-escalation, or could have issued the inmate a formal misconduct for - 21 - threatening the officers, or depending on the inmate’s behaviour and history, could have had him put in restraints or brought in a psychologist. [71] Ms. Harvey testified that a CO may only use physical force to defend himself or another employee, to prevent an escape, to control an area, or to protect another inmate. Physical force is to be used as a last resort, and only enough to bring the situation under one’s control. She characterized the grievor’s pushing of the inmate with his stomach as an excessive use of force, as was the slap and the missed punch to the inmate’s head. [72] In reaching the decision to terminate the grievor’s employment the Superintendent had taken into account Mr. Gour’s 12 years of service and that he had a clean disciplinary record. However, she noted that the impact of an excessive use of force goes beyond the inmate alone. It could impact the grievor’s peers; there could have been more injuries as a result of his escalation of the incident; it impacts the OCDC negatively when the institution has to report the incident; there could be review by the Ombudsman, and it reflects poorly on the Ministry as a whole. She had also taken into account that the grievor had misrepresented what had happened in his reporting of the incident, about which the evidence is outlined below. Reporting: [73] One of the grounds for the grievor’s dismissal was that he had violated the Institutional Services Policy and Procedures regarding Report Writing (s. 3.3). As noted earlier, on March 25, 2013 the grievor had completed the Correctional Officer Report Writing RMT course. Mr. Hunt also testified that all new recruits are trained in report writing when they attend the Ontario Corrections College. There is no dispute that the grievor had been trained on how to write reports. [74] After the incident on May 9, 2014 the grievor asked Sergeant Riche if he could be relieved from his duties in order to write his report. He was initially told that - 22 - since the unit was short staffed that day, he could not be relieved of his duties. However, the grievor asked again shortly thereafter as 2 Wing was noisy, and inmates are constantly asking the staff questions. According to the grievor, at approximately 2:25 or 2:30 p.m. Riche decided to lock down 2 Wing so that Gour could leave the area to go and write his report. [75] The grievor testified that there are only two computers accessible in the maximum-security area, and both have to be used by staff for various purposes. Gour went to use one of those computers at the “Max Book” officer’s desk, but he had to share it with that officer whenever the officer had to enter court returns or new admits entering the area. The grievor himself also had to go every half hour to his own unit to do an area check because once an area is on lock down, staff have to go in regularly and conduct individual cell checks to ensure that inmates are all right. [76] According to Gour’s report, he began writing it at 2:30 p.m. on the day of the incident. It was a two page report, the first of which mostly requires one to fill in one’s name, date, time the report was written, fill in the blanks or check off applicable boxes, and to fill in the names of the inmate and other staff who were involved. [77] On the second page of the report the writer provides a detailed description of the events and is reminded before beginning that a Use of Force Occurrence Report must answer questions of who, what, where, when, why, how, and actions taken. Writers are also directed to the Institutional Services Policy and Procedures Manual – Report Writing. Mr. Gour wrote about five or six paragraphs in the narrative section of his report. [78] A review of section 6.2.3 of the Use of Force section of the Manual, as it regards Documentation, indicates that if circumstances prevent staff from completing reports by the end of the current shift, an extension may be granted as approved - 23 - by the superintendent or designate, based on the circumstances that prevent staff from completing their reports. The initial incident manager is expected to provide a rationale for the delay. The grievor did not request an extension of the deadline to file his report. [79] As noted earlier, the grievor’s initial Use of Force Occurrence Report was written on the date of the incident, May 9, 2014 at 2:30 p.m. The incident had occurred at 2 p.m. For the purposes of this hearing the following is the relevant portion of the grievor’s report: … I was at the desk area in 2 wing when I heard inmate <name> yelling out loud to Officer Doyle and him saying that he would fuck him up and knock him out. I immediately stood up and assisted Officer Doyle with the situation by standing there and giving the inmate verbal commands to be quiet and to face the wall. At this time I have no understanding on why this above inmate was acting this way. Repeatedly telling the above inmate to stay against the wall and to be quiet and the inmate instead of cooperating with directions given to him he kept on saying that we were goofs and that he would fuck us up engaging us in a fight because he was a federal inmate. The above inmate wasn’t cooperating at all with directions and kept on yelling at us while pacing towards us. He said on multiple occasions that we were dead and that he wanted us to go inside a cell 1 on 1 with him so he could show us what a federal inmate could do. I then clearly told the offender on multiple occasions to keep quiet and to turn around and face the wall. The inmate started laughing and said we were pussy goofs. I was standing at close proximity of the inmate because I kept giving him orders to face the wall and he refused to comply. The inmate then without notice spat in my face and I immediately turn my head away. - 24 - I then took the inmate with both my hands behind his head and officer Doyle was assisting me directing him towards the ground while giving him directions to get down, its unknown to me how or what technique officer Doyle was using. Once he was on the ground … [80] The grievor was cross-examined about some of the content of his report as it was not consistent with what had apparently occurred when compared to the video recording. [81] On the aspect of his report that the inmate “wasn’t cooperating at all with the directions” the grievor testified in cross-examination that he meant that the inmate was still verbally abusing the officers. He conceded that in fact the inmate had cooperated and followed Gour’s instruction to turn and face the wall. The grievor claimed that had slipped his mind at the time he was writing his report. [82] The grievor was cross-examined about the veracity of his next statement in the report that the inmate “kept on yelling at us while pacing towards us”. He admitted that the pacing had occurred earlier, and not at that juncture when the inmate had turned and faced the wall. Gour asserted that the inmate was moving from one foot to the other while he was facing the wall, and that was what he called “pacing”. There is simply no evidence that when the inmate was facing the wall that he was pacing towards the officers. [83] It was put to the grievor that there was no evidence of the inmate laughing on the video recording, and that Gour’s statement in his report to that effect was an intentional misrepresentation. The grievor testified that the inmate had a grin on his face, and conceded that he had not been laughing. He also conceded that he had not reported that the inmate had been standing facing the wall with his hands behind his back. - 25 - [84] While the grievor claimed that he had very little time to write the report, he admitted he had worked on his report from 2:30 p.m. till the end of his shift at 6:45 p.m. It would appear that he had 4.25 hours to complete some basic information on the form, to write approximately six paragraphs regarding what had occurred, to do some rounds of his area every half hour, and had to move off the computer when it was needed. [85] By an email dated June 5, 2014, Michael McMahon, the Local Investigations Manager, asked the grievor to submit a Use of Force Occurrence Report Addendum regarding the May 9, 2014 incident, and outlined in a letter dated June 3, 2014 the specific questions that were to be answered in the Addendum. On June 6, 2014 the grievor submitted an Addendum – Use of Force Occurrence Report. The grievor would not have had access to his original Occurrence Report when he wrote his Addendum report. The relevant questions and answers from the Addendum are as follows: 4. Please define what you mean by close proximity and explain why you were chest to chest with the offender. - After multiple attempts telling the inmate to calm down and to face the wall and him refusing to cooperate with the orders I decided to get closer to the inmate with a louder tone of voice telling him a direct order to be quiet and to face the wall thinking that the inmate would disengage and cooperate but instead he spat in my face. 5. With the offender’s behaviour, why did you not disengage? - Considering the inmate’s behaviour and the location where we were it was impossible for us to disengage since we were all in the staff walk. Our objective was simply to control the situation. We did our very best to keep our distance from the inmate while giving him orders to calm down and to face the wall. - 26 - 6. After you took hold of the offender’s head what techniques did you employ to direct the offender to the ground? - After the inmate spat in my face I took a step back to wipe the spit off. I then took the inmate coveralls at the shoulder and head area and turned to my right side and directed him to the ground and had him in a prone position to avoid being spat on a second time. [86] In cross-examination it was pointed out to the grievor that even when he had more time to complete his report he did not mention in his Addendum that the inmate had cooperated by facing the wall with his hands behind his back. The grievor admitted that was correct. [87] The grievor was also challenged about his assertion that the officers had done their best to keep their distance from the inmate, which the grievor had not done at all. The grievor testified that he knew he had been close, but he thought he had been a “fair distance” from the inmate while giving him orders. [88] Mr. Gour conceded that while he thought he had stepped back and wiped the spit off, that had not happened. [89] With respect to Gour’s addendum report that he had taken the inmate by the coveralls at the shoulder and head area, when cross-examined the grievor testified that was not a contradiction of what he had said earlier. He claimed he had testified in chief that he had taken the inmate by the coveralls in the head and neck area. A review of the evidence indicates, and as outlined earlier, the grievor did not testify in chief that he had taken the inmate by the coveralls at all. [90] It was put to the grievor that he had struck the inmate when he first raised his hands towards the inmate’s head and neck, but the grievor categorically denied that assertion. He was asked about there being no mention in his reports of his having made contact with the inmate’s face or neck area with his open hand: Gour indicated that was because he never hit the inmate. - 27 - [91] At the hearing the grievor was asked why his report did not contain any mention of his having made contact with the inmate with his stomach. The grievor maintained that he never felt that he had touched the inmate. [92] He was asked why there was no mention in his report of his having used his fist to either block the inmate or to punch the inmate: Gour indicated he had not recalled having made a fist until he saw the video recording of the incident much later at the second investigation meeting. The grievor denied ever having intended to punch the inmate. [93] In making her decision to terminate Gour’s employment, Ms. Harvey considered the shortcomings of the grievor’s reports following the use of force incident, and was of the view that he had breached the Institutional Services Policy and Procedures Manual as it pertains to Report Writing. That policy establishes the guidelines for all employees regarding the importance of writing and submitting reports for recording and disseminating information necessary for preserving institutional safety and security. That policy was available to the grievor on the intranet. There is no dispute that the grievor was aware of his responsibilities for thorough reporting. [94] In cross-examination Ms. Harvey conceded that a failure to recall every detail of a stressful incident does not necessarily imply that the person is being untruthful, but she was of the view that when one had more time to reflect on what had occurred, more details may be recalled. She also indicated that while someone may not recall something when first asked, once they have been shown the video recording, that should jog their memory. [95] The Superintendent considered that the grievor had breached Statement #6 of Ethical Principles, from the Ministry ‘s Institutional Services Policy and Procedures Manual. That Statement states as follows: - 28 - Statement 6 Respect the civil, legal and human rights of those under our care and supervision. Through legislation and policy, we are mandated to contribute to the Ministry’s goals of public safety and offender rehabilitation. To achieve these goals, staff will: - Deal with offenders in a responsible, just and humane manner. Post-termination meeting discussion: [96] The Union called evidence through Denis Collin, the Local 411 President, regarding a conversation he testified that he had with the OCDC Superintendent, Maureen Harvey, after the meeting at which Mr. Gour was dismissed from his employment. The substance of Collin’s evidence was put to Ms. Harvey when she was cross-examined, and she had no recollection of having had the conversation with Mr. Collin. I do not intend to outline the evidence in this regard since I have found the purported interchange to be of no assistance to me in my consideration of this matter. DECISION [97] In reaching a decision in this case I have reviewed all the evidence and jurisprudence presented, as well as the parties’ final submissions. Each case turns on its own particular facts, so that except for providing a general sense of how use of force incidents have been addressed in various circumstances, I did not find the jurisprudence to be of much assistance to me in my consideration of the circumstances before me. Some of the case law provided was so old as to be of little assistance given the prevailing views about how inmates are to be treated in an institution. The level of abuse of inmates that may at one time have been tolerated, and that may not have led to termination, is simply no longer - 29 - acceptable. Other decisions put before me were distinguishable on their facts, and therefore were not ultimately relied upon. [98] Regulation 778, R.R.O. 1990, under the Ministry of Correctional Services Act, addresses correctional institutions in Ontario, and specifically addresses the use of force by employees of such institutions as follows: 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. (3) 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. [99] This is a case in which there is no dispute that the grievor had been trained repeatedly on de-escalation techniques, defensive tactics, and report writing. He was aware of the Employer’s policies respecting how Corrections staff are expected to treat inmates in institutions. He had 12 years of experience doing the CO job at the OCDC. [100] Mr. Gour had been provided with and trained regarding the Ministry of Community Safety and Correctional Services policies, and in particular the Use of Force policy as outlined in the Institutional Services Policy and Procedures - 30 - Manual. The December 4, 2013 version of the Use of Force policy, which the grievor had received, states as follows: 3.0 Policy 3.1 the policy of Correctional Services is to ensure that when dealing with Use of Force on an inmate: 3.1.1 Whenever possible, and given all circumstances, staff should attempt to resolve incidents using verbal intervention skills, such as diffusion of hostility, as well as other peaceful resolution strategies (i.e. officer presence or disengagement – see 8.0 – Defusion of Hostility). … 3.1.4 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; control a rebellious or disturbed inmate; or conduct a search (see Searches – R.R.O. 1990, Reg. 778, s. 7(1). 3.1.5 Force must always be the action of last resort. The amount of force used must only be that amount needed to control a situation. When there is a decision to use force, it must be used in compliance with the law, good judgment, and Ministry policy, procedures and training. 3.1.6 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 – R.R.O. 1990, Reg. 778, s. 7(2). 3.1.7 Force is not intended to be, and must never be used as a means of punishment. … 3.1.9 Excessive Use of Force will not be tolerated. Employees found to have applied force in excess of approved methods may be - 31 - subject to criminal charges and/or appropriate disciplinary penalties, up to and including dismissal. [101] The policy defines “Excessive Use of Force” as follows: Any application of physical force by an employee of the Ministry against an inmate that exceeds the necessary amount of force required to control an inmate. Excessive Use of Force is inconsistent with the standards determined by law, good judgment, Ministry policies, procedures and training. It is deemed unreasonable and excessive, having regard to the nature of the threat posed by the inmate and all other circumstances of the case. [102] Section 5 outlines the various responsibilities of Corrections staff in relation to the Use of Force Policy. For Correctional staff, among other things, it is to ensure that whenever possible they use verbal intervention skills to diffuse hostility and manage aggressive behaviour (s. 5.6.1); that they apply Ministry training, theory and practical measures to ensure that force applications are properly used (s. 5.6.2); and that all required reports are completed and submitted as required (s. 5.6.4). [103] The grievor knew that as a CO he is supposed to use verbal de-escalation techniques when dealing with an agitated inmate. He testified under cross- examination that he knew that verbal de-escalation involves talking to an inmate and trying to calm him down. He knew that the manner in which officers are taught to do that is by asking the inmate in a calm voice what is wrong, and trying to identify the problem. He knew that an officer is taught to maintain composure, not act out of frustration or anger, and to keep oneself under control. He knew that an officer is not supposed to engage in any aggressive movements during verbal de-escalation, and should not invade the inmate’s personal space. - 32 - [104] The grievor also knew that an officer should keep an arm’s length distance from the inmate, so that the inmate can be observed from head to toe, and that the officer should stand at a 45-degree angle to the inmate (a bladed stance). He conceded that an officer is not supposed to be in contact with the offender when speaking to him, and that he had been in “close proximity to the offender”. [105] He knew that if none of the accepted verbal de-escalation techniques were working, an officer is supposed to disengage by giving the inmate an order not to move, and by backing away slowly, all the while keeping an eye on the inmate and maintaining a defensive stance in case of an assault or a strike by the inmate. He knew that once the officer has disengaged, and left the inmate in a secure area, a manager must be notified. [106] Mr. Gour was also aware that using force is a last resort, and that a CO is never to use excessive force. He knew that an officer cannot use force just because an inmate is annoying him; that an inmate being verbally abusive does not justify the use of force; and Mr. Gour conceded that it is not at all uncommon for inmates to be verbally abusive to COs, including using highly inflammatory language about the officers’ children, mothers and other family members. He knew that none of that justified the use of force by an officer. [107] The grievor knew that even when a CO is compelled to use force, s/he must always do so in a defensive manner using the techniques that have been taught, and should not use their own techniques. However, he believed that the latter only applied in a perfect situation. He took no responsibility for having created the less than perfect situation that led to this incident. [108] The grievor had been taught that if an inmate must be brought down to the ground, the CO should reach for the inmate’s arm, or grab onto their coveralls to pull the inmate to the ground. However, he testified that it is not always possible to get a hold of the arm or coveralls, and in that case the officer can reach behind the head or neck to hold the inmate and bring them down. He conceded that the - 33 - Ministry training is that an inmate should not be held by the head, face or neck area because there is a higher risk of serious injury to the inmate. He also knew that using a closed fist is an offensive, not defensive, tactic, and as such is never permitted. [109] The grievor had been taught how to use defensive physical techniques, but that to use the techniques, the officer has to be at arm’s distance from the inmate, because if too close, the officer would not be able to see a punch, kick or jab in order to block it. [110] Notwithstanding all of his training and knowledge, in the May 9, 2014 incident Mr. Gour did nothing that was consistent with that training and experience. Based on the evidence I find that he did not use any de-escalation techniques, but rather from the moment he entered the staff walk acted in an aggressive and confrontational manner with the inmate to escalate the already tense situation between Doyle and the inmate. Even when the inmate was being physically compliant, the grievor kept insisting on total subjugation by requiring the inmate to be quiet. Faced with an inmate who would not be quiet, rather than disengaging as he had been trained to do, the grievor lost his temper and used his body and his voice in such an aggressive manner that he precipitated the inmate assault of spitting on Gour. I note that there was no evidence tendered to suggest that there was any reason for the grievor having a lack of patience or ability to control his anger on the day in question. [111] Having reviewed the video evidence it is clear that had the grievor not put himself in the position of being in close contact with the inmate, he would not have been in close enough proximity to have been spit in the face. Furthermore, had he been maintaining an arm’s length distance from the inmate, he would not have had to reach for the inmate’s head or neck to bring him down. The entire situation was of the grievor’s making and was a result of his extremely poor judgment, his lack of use of his de-escalation training, and his failure to follow the defensive tactics training that he had received repeatedly during his tenure as a - 34 - CO. The exercise of self-control is a necessary quality for a CO, who will undoubtedly be confronted with provocative situations from time to time, but the grievor appears to have been unable to control his anger and frustration on this occasion. [112] However, based on all of the evidence before me, I cannot find that the grievor slapped the inmate in the aftermath of the spitting. It is more likely than not that the grievor’s open hand was going towards the inmate’s neck to try to bring him down to the ground. Even though the grievor did not appear to slap the inmate, he did use a completely unorthodox method to try to bring the inmate down. Had Gour not put himself in the aggressive stance of pushing his stomach against the inmate in the first place, he could have been in a better position to bring the inmate to the ground. It was because of his extremely close proximity to the inmate that he had to start grappling in an unwieldy manner to try to get the man down. [113] I also find that the grievor did not try to punch the inmate right after the spitting incident. I accept the grievor’s evidence that he had not realized that he had closed his fist when his hand slipped off the inmate’s neck in the grounding attempt. As already noted, the grievor was simply too close to the inmate to properly maneuver him to the ground, and it is more likely than not that when he reached up to get the inmate’s head or neck, he missed, and his hand involuntarily clenched. [114] It is worth noting that in the milliseconds after the spitting occurred, there was a very quick scuffle, and with the assistance of a number of officers who were in the area immediately, the inmate was brought to the ground. There is no suggestion that the grievor, despite having been spat upon, tried to beat the inmate after he was on the ground. [115] I am buoyed in my view by the fact that the inmate did not report that he had been slapped, or that the grievor had tried to punch him. As well, I note from the - 35 - Local Investigation Report that the OCDC Investigating Managers, who had also reviewed the video recording, did not observe any slap of the inmate. While there was some concern expressed about the grievor having made a fist in one instant in the recording, they too appear to have accepted that it was not a punch at the inmate. [116] Thus, while I find that the grievor did use more force than was necessary in pushing the inmate against the wall with his stomach and pressing him against the wall with his stomach and abdominal area before the spitting occurred, I do not find that Gour slapped or tried to punch the inmate after being spat upon. [117] With respect to Gour’s reports about the incident, I find that his reports were incomplete and misleading. In his reports the grievor took no responsibility for his actions in the incident, and instead tried to paint the inmate as having been completely non-compliant with the officers’ instructions. He never mentioned that he himself had come in and been aggressive from the beginning of his encounter with the inmate; he did not mention that the inmate had turned around and faced the wall when asked to do so, and had had his hands behind his back in full view of the officers; he did not mention that he had used his physique to push the inmate around and then had used his stomach to push the inmate against the wall before the inmate finally spat on him. [118] The grievor’s report that it was impossible to disengage was disingenuous: When the inmate had his face to the wall, and his hands behind his back, the two officers could have used the opportunity to disengage. However, since the grievor had failed to report the inmate in that stance, he made it appear as though there had been no opportunity to disengage. [119] While I accept that in light of how short and stressful the main part of the incident was, the grievor may not have remembered every detail when writing his report, the three areas outlined above were fundamental to the account of the incident. It is understandable that the grievor may not have recalled later how he had tried - 36 - to take the inmate to the ground, whether by the neck or by the coveralls. However, not recording the extent to which the inmate had been cooperative was a deliberate misrepresentation, as was the failure to report the grievor’s own role in the altercation. [120] The grievor had been trained on how to write a report. I do not find it to be a mitigating factor that Mr. Gour had to write his report while at work in a somewhat distracting atmosphere: he had 4.25 hours to write a few paragraphs describing an incident that had just occurred. He had asked to be relieved of his duties, and while he did not get that, Sergeant Riche had locked down the grievor’s unit in order to make it easier for him to write his report. Had he wanted more time to write the report, he could have requested that too, but he did not do so. [121] I accept the Employer’s argument that Use of Force Occurrence Reports are fundamentally important to the operation and administration of a correctional facility. In my view any misrepresentation in such reports through omission or dishonesty may constitute serious misconduct. The grievor maintained that if the Employer wanted more information, it should ask for an Addendum. That is a completely unacceptable attitude, and not one to be condoned. Mr. Gour knew that pursuant to both the Regulation and the Ministry’s policies he was expected to make a full report following a use of force incident. Yet, he was deliberately inaccurate, dishonest and misleading in his Occurrence Report and Addendum thereto. It seems more likely than not that he knew that his behaviour in the staff walk that day would have been viewed as unacceptable, and that was the reason for his dishonesty in this regard. [122] On the basis of all of the evidence, and as outlined above, while I have found that the grievor did use excessive force in the May 9, 2014 incident in using his stomach to push the inmate around and against the wall, and breached the Employer’s policies regarding report writing, I cannot find that he slapped or attempted to punch the inmate. As such, I find that the Employer has not established that it had just cause for dismissal. The slap and the attempted - 37 - punch were what apparently raised what was otherwise seen as a disciplinary offence to one that warranted termination from employment. Since the Employer has not been able to establish that either of those uses of force occurred, the termination cannot stand. The question then is what is the appropriate penalty in light of the grievor’s actions. [123] I am troubled by the grievor’s failure to be completely candid when testifying in this proceeding. Mr. Gour testified that he had spoken to the inmate in a normal voice at the beginning of the incident, and then in a slightly louder tone later on. That simply does not square with what is apparent on the video recording: It seems obvious from the grievor’s facial expressions on the recording that he was speaking to the inmate in an aggressive manner from the moment he entered the staff walk and began to order the inmate to turn around and face the wall. By the time that the grievor was up against the inmate’s abdominal area, he appears to have been speaking to him in anger. [124] When testifying Mr. Gour claimed repeatedly that he had been scared of the inmate, when there was simply no objective evidence of that even in Gour’s own actions. Had he been scared, one would have expected him to have maintained a safe distance from the inmate, but instead he pushed himself right up against the inmate and was loudly giving him orders. It seems that the grievor was claiming to have been fearful as an excuse for his actions on the day in question. [125] The grievor maintained at this hearing that he had not pressed himself up against the inmate, and that it was the angle of the camera that made it seem so. The video recording was shown to the grievor repeatedly in the course of the hearing, so that his evidence in that regard was completely at odds with what was obvious. His inability to admit that he had pressed himself up against the inmate for no apparent reason must be viewed as a willful disregard for the truth. [126] It is troubling that even after having been dismissed from employment, and having had almost a year to consider his situation, the grievor did not appear to - 38 - have taken full responsibility for his role in the incident. He testified that he would do things differently if faced with the same situation, but what he said he would do would still not have him engaging in de-escalation. [127] In light of my findings regarding the grievor’s unnecessary use of force, his lack of candor in his reporting of the incident, as well as his continued failure to be completely truthful at the hearing, serious discipline is warranted. The grievor must understand that he acted in an inappropriate manner, contrary to all of the training provided to him and the Ministry’s policies and expectations, and that there are consequences for that. He also needs to understand the importance of honestly reporting an incident, and his role in it, and that there are serious consequences for not being truthful. [128] The mitigating factors in favour of the grievor are his reasonably long service of 12 years, with a blemish-free record during that time. I accept the grievor’s evidence that in all his time as a CO he had not punched an inmate, and that he would not have jeopardized his career by doing so in this incident. I accept also that he has shown some remorse for his poor judgment, and I note that the Employer had noted that he had been very remorseful at the second investigation meeting. However, his failure to take full responsibility for his role in the May 9, 2014 incident, and for his inappropriate use of force, both during the investigation and at this hearing undercuts the value of his purported remorse. [129] I have also considered that the Superintendent of the OCDC had been prepared to keep Mr. Gour in employment at the institution when she completed her part of the Use of Force Local Investigation Report on August 28, 2014. At that juncture the local investigators had not noted the alleged slap of the inmate, and had been satisfied by the grievor’s explanation for what looked on the video recording like a fist aimed at the inmate. A disciplinary penalty of a suspension had been considered adequate at the time. - 39 - [130] Having regard to all of the factors outlined above, I hereby substitute a twenty (20) day unpaid suspension for the discharge. The grievor is to be reinstated to employment with full compensation (less the period of the suspension and subject to mitigation), benefits and the accumulation of seniority. I will remain seized to address any issues that may arise out of the implementation of this decision. Dated at Toronto, Ontario this 8th day of March 2016. Gail Misra, Vice Chair