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Home My WebLink About2011-2731.Wild.16-03-29 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#2011-2731, 2011-2808 UNION# 2011-0368-0170, 2011-0368-0185 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Wild) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Daniel Harris Vice-Chair FOR THE UNION David Wright Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Robert Fredericks Treasury Board Secretariat Legal Services Branch Counsel HEARING November 19, December 2, 2015 January 13 & 29, March 9 & 14, 2016 - 2 - Decision The Proceedings [1] This matter involves the discharge of Shawn Wild (the grievor) on November 10, 2011 from his employment as a Correctional Officer at the Central East Correctional Center. It is alleged that on June 19, 2011 he used excessive force against inmate PN, which justified his discharge. The grievor was charged criminally with assault. He was acquitted April 17, 2014. [2] The union brought a prehearing motion to the effect that the grievor's acquittal established that his discharge was unjust. That motion was dismissed (see OPSEU (Wild) and CSCS (GSB #2011-2731, May 12, 2015). [3] In the course of the hearing, the employer sought to call Greg Ireland, the Ministry’s Provincial Coordinator, Use of Force Programmes, as an expert witness. The union conceded that he is a subject-matter expert, but it said that his evidence was inadmissible in this matter. My written ruling dismissing the union’s objection is being released in a separate decision. The Facts [4] The grievor began his employment in the Ontario Public Service as a Youth Services Officer with the Ministry of Children and Youth Services where he worked from April 2008 to February 2009. He then became a Correctional Officer (CO) at the Central East Correctional Centre, where he worked from February 2009 until his termination in November 2011. Accordingly, he had less than two - 3 - and one-half years experience as a CO at the time of the alleged excessive use of force. [5] The general process for admitting inmates into custody is as follows. The inmates are brought to the institution and taken to Admitting and Discharge (A&D). They first attend at the warrant desk where they identify themselves and are told why they are being taken into custody. They are frisk-searched and taken to the “ident” desk where they are further processed. From there they are taken to another area where they are strip-searched. This involves having them remove their clothing, which is catalogued and stored in a garment bag. The purpose of the strip-search is to ensure that they have no contraband. They are given prison garb to wear, put in a holding cell, and later taken to their unit. [6] On the day of the incident, the grievor was working in A&D when an Ontario Provincial Police (OPP) transport vehicle brought in inmate PN. The grievor was near the warrant desk when PN was brought in. There were at least three other COs nearby, including CO Sirrs. The grievor testified that the OPP personnel told the COs in A&D that PN was a "shithead” and had had to be segregated in the transport vehicle. The grievor testified that PN was noncompliant. He said that PN said he did not belong in jail and that he "fucked Paris Hilton types”. The grievor also testified that he noticed what appeared to be blood stains on PN’s s clothing. He testified that PN walked up to the warrant desk and leaned against it rather than staying back from the desk behind the yellow line on the floor. The grievor testified that, as a result, CO Sirrs escorted PN to a nearby cell using a - 4 - “C-clamp” on his arm, that being the grasping of his arm by CO Sirrs wrapping his hand around it. As a result, PN was not frisk-searched, as is the norm. [7] It was the grievor's evidence, and the union's theory of its case, that the behavior of PN put the grievor on a heightened level of alertness as to the potential for PN to cause trouble. In particular, CO Sirrs’s intervention meant that PN had not been frisk-searched. Because no frisk-search had been performed, the grievor became concerned that PN might be concealing a weapon. [8] The employer disputes that all of these incidents took place in the warrant desk area. Although there were a number of COs present who would have been able to refute or corroborate the grievor's account, neither party called them to give evidence. The employer called Craig Hillen, Deputy Superintendent of Operations at CECC; he made the decision to terminate the grievor's employment. It also called Greg Ireland, Provincial Coordinator, Use of Force Programmes, to give evidence relating to the training provided to COs, in particular with respect to the use of force. The union called only the grievor. Both parties took the position in their final submissions that adverse inferences should be drawn against the opposite party for the failure to call these additional witnesses. [9] After PN was placed in a cell near the warrant desk, the grievor returned to his station in the strip search area. This is a large rectangular room with a desk along the side of the long axis. Across from the desk, again along the long axis of - 5 - the room, is a row of six rectangular cubicles, or bays, which have half-height walls and are open on the narrow end, facing the desk. There is also a seat built into the cubicle. They are designed such that an inmate enters at the open end and sits on the bench while disrobing. [10] Closed Circuit TV (CCTV) records activities in this area. A video recording was entered into evidence covering the two minute and forty-nine second period from when PN entered the area to when he was removed. [11] The following are my findings of fact as to what is disclosed by the video. [12] The grievor can be seen standing in the open end of the second bay, with his back to the camera, talking to CO Bingley, who was the grievor’s partner in the strip-search area. CO Bingley was seated at the desk. CO Sirrs entered with PN and handed Mr. Bingley a package, which apparently contained PN’s personal effects. As PN was brought in, the grievor turned around and directed him into the second cubicle. [13] It can be seen from the video recording that the grievor then walked to the far wall, beyond the last bay, to obtain a garment bag for PN’s clothing. His back was to PN. As he walked past the desk towards the garment bags, he can be seen speaking with Mr. Bingley; the CCTV has no audio. Approximately 32 seconds go by from the commencement of the video recording to the grievor - 6 - returning to the cubicle with the garment bag and hanging it up on a coat stand. PN then begins to disrobe. He was faced away from the grievor. [14] From the video recording it can be seen that PN handed each article of clothing to the grievor, half turning to the left each time. Occasionally they can be seen conversing. There is nothing remarkable or eventful on the video to this point. Mr. Bingley was generally busy logging PN's personal effects, at one point leaving his desk for a few seconds to retrieve what appears to be a plastic bag. PN can be seen removing articles of clothing and handing them to the grievor. The entire scene is unhurried and relaxed. [15] PN handed his socks to the grievor as his second last articles of clothing. As he did so, his torso was half turned to the left with his face fully turned to the grievor while addressing him; PN then began to remove his sweater as he turned back to face the closed end of the cubicle. With his back to the grievor, he appears to be bunching the sweater into a ball. With his right hand he tossed the sweater over his right shoulder towards the grievor. He lifted the sweater with his right hand past the right side of his head. His right arm was shoulder height and bent at the elbow with his forearm straight up in the air when he let go of the sweater. His torso was also turned slightly to the right as he let go of the sweater, and he was glancing over his right shoulder towards the grievor. As the sweater left PN’s hand, it was moving towards the grievor at approximately head height, but it quickly lost velocity and dropped in front of the grievor, who caught it at about the level of his lower chest area. The sweater was lobbed, not thrown - 7 - [16] The grievor was very briefly startled, and then he immediately started to move towards the inmate with the sweater held in his right hand. He struck the inmate on the back of the head with his right hand, with what appears to be significant force, causing the inmate’s head to lurch forward. While the grievor was striding towards the inmate to strike him, the inmate was turning from his slight rightward orientation towards his left side at an unhurried rate of speed. There is no indication of PN moving towards the grievor. The grievor grabbed the back of PN’s skull with his right hand and his chin with his left hand. He does not grab him by the throat. He turned the inmate around and pulled him to the floor. Two seconds elapsed from the time the grievor caught the sweater to the time he had hold of PN’s head. A further three seconds saw PN on the ground. As the grievor was taking PN to the ground, Mr. Bingley got up from his desk and rushed to help. Other COs came from the other areas of A&D. PN was ultimately led off. [17] Craig Hillen testified on behalf of the employer. He was the Deputy Superintendent of Operations at the time of the incident. He first learned of the incident in early July 2011. He reviewed the video and existing reports and recommended an external review. However, the Regional Office directed him to lead an internal investigation. Operational Manager Michael Gimson completed a fact-finding report. In his testimony, Mr. Hillen reviewed the occurrence reports filed by the COs, the interview notes completed by Mr. Gimson and Mr. Rioux, as - 8 - well as Mr. Gimson’s Use of Force Fact-Finding Report dated September 1, 2011. He agreed with Mr. Gimson’s conclusion that the grievor, at 1408:01 of the video "grabs the inmate by the front of the neck with his left hand." As set out above, that is not accurate. [18] Mr. Hillen shared the fact-finding report with the Superintendent and others. He was then tasked with responsibility for scheduling and presiding over an allegation meeting. That meeting was scheduled for September 27, 2011 to allow the grievor to respond to the following allegations: 1. That on June 19, 2011 you were grossly negligent in carrying out your roles, responsibilities and duties as a Correctional Officer and Ministry representative in your unnecessary, unauthorized and excessive use of force on an inmate, contrary to the MCSCS Institutional Services Policy and Procedures manual: Section: Security, Subject: Use of Force; 2. That on June 19, 2011 you failed to meet the standards for professional behavior as outlined in the Statement of Ethical Principles; MCSCS Institutional Services Policy and Procedures manual: Section: Employees; 3. That on June 19, 2011 you failed to provide care, custody, and control as required of a Correctional Officer and in contravention of the Ministry of Correctional Services Act, MCSCS Institutional Services policy and procedures manual: Section: Employees, Subject: Institution Employees. [19] Mr. Hillen testified that it was at the allegation meeting that the grievor said for the first time that PN's clothing was soiled with what appeared to be blood. It was Mr. Hillen’s evidence that the grievor took the position at the meeting that he had done nothing wrong, and that it was no big deal. Following the allegation meeting Mr. Hillen concluded that there had been an unnecessary use of force, and the level and amount of force used to control the offender was excessive. The - 9 - grievor was advised by letter dated November 2, 2011 that a disciplinary meeting had been scheduled for Thursday, November 10, 2011. At that meeting the grievor's employment was terminated. [20] Under cross-examination Mr. Hillen agreed that force may be used on an inmate in various circumstances. He described it as a continuum from guiding an inmate with a c-clamp, which would not be a use of force if the inmate was compliant, to a range of other actions, including striking an inmate, if the inmate was not compliant. He said striking an inmate could include both open handed and closed handed strikes. The circumstances at the time would dictate whether the force used was appropriate and the decision as to what force should be used might have to be made very quickly. [21] Mr. Hillen said that he reviewed the occurrence reports filed by the other COs, which indicated that PN had not followed directions from staff when he was first dealt with in A&D. He said there was no reason to doubt the grievor’s statement that PN was noncompliant, which was a circumstance that could put a CO on alert. [22] He agreed that needing to strip-search an inmate who had not previously been frisk-searched would also heighten alertness, as would an inmate facing away during the search, because his hands would not always be visible. In his examination-in-chief he had testified that it was a requirement that all inmates be frisk-searched when being admitted. He also agreed that the order in which this - 10 - inmate disrobed was unusual. PN was not behaving in a normal fashion and the ultimate action of throwing the sweater would also have been a concern. It might be an attempt to distract and could indicate that an attack was coming. [23] It was Mr. Hillen’s view that the blow to PN's head must have been with at least a partially closed fist because the grievor was still holding the sweater in that hand. He also continued to say that the grievor grasped PN in the throat/neck area. [24] Mr. Hillen agreed that it was necessary to look at all of the circumstances in order to assess whether or not the behavior of an inmate is threatening. [25] Mr. Hillen was taken through all of the occurrence reports and other documents upon which he relied in drawing the conclusion that the grievor had unnecessarily used force against PN. [26] Greg Ireland also testified on behalf of the employer. He reviewed the training received by the grievor, particularly with respect to the use of force and report writing. In his evidence he reviewed the training materials provided to COs that deal with the use of force including the Criminal Code of Canada, Ontario Regulation 778 of The Ministry of Correctional Services Act. He also reviewed the relevant Ministry policies. [27] As to the incident itself, Mr. Ireland used the Use of Force Management Model to analyze the various options open to the grievor. He said that if the grievor was - 11 - genuinely concerned by the behaviors he had witnessed at the warrant desk and the fact that the inmate had not been frisk-searched, then the grievor should have considered giving verbal commands to ensure compliance, taking up a protective stance, potentially calling for additional staff, involving his partner in the search, and certainly not turning his back on the inmate while he walked to obtain a garment bag. It was Mr. Ireland’s view that it was a judgment call as to whether or not the grievor should have insisted that PN turned to face him. PN was not cooperating by not turning to face the grievor, but he was cooperating in removing his clothing. [28] With respect to the throwing of the sweater, Mr. Ireland concluded that PN was still cooperating but was escalating the situation by way of grandstanding, trying to make a statement of some type or trying to bait the grievor by being disrespectful. It was Mr. Ireland's view that the appropriate response would be for the grievor to grab the sweater, back up a step to be out of range of a punch or kick, take a defensive stance and give PN clear directions. As for the potential that PN might have had a weapon, it was his view that at that stage PN was naked and had there been a weapon it would have fallen to the ground. As for the blow, it was Mr. Ireland's opinion that the grievor struck PN with a closed fist because he was holding the sweater. He said that any blow should only be openhanded. He testified that PN was not doing anything to increase a sense of urgency at the time he was struck. - 12 - [29] Under cross-examination Mr. Ireland agreed that the application of force must be consistent with the threat identified and that reasonable force is the amount necessary to control, which varies with the individual and the circumstances. He agreed that there is no checklist of things to do. These are judgments made by a CO often under time pressure, which can call for immediate response. [30] He also agreed that the concerns the grievor may have had would all be circumstances that would go into the assessment of PN. Those factors included PN's behavior at the warrant desk and after arriving in the strip search area. Further, he agreed that the grievor did not use force because of any one of these factors. Rather, force was resorted to when PN escalated the situation by throwing the sweater. He also agreed that it was possible that a weapon could be affixed to the chest or on a chain around the neck, or PN could have taken something out of his sweater and now be holding it in his hand. He agreed tossing a sweater could be meant to create a diversion in order to gain access to a concealed weapon or as a precursor to an assault. The grievor had to make a judgment in the moment as to what his next action would be. He also said that COs are trained not to move into a weapon but to move away and deflect or block an edge weapon if attacked. He also agreed that if a CO was afraid that a weapon would become involved it was an option to move quickly to prevent it. [31] Mr. Ireland said that distraction is a defensive technique meant to allow escape from an inmate's grasp or to take control, which does not include a blow to the back of the head. It was Mr. Ireland's view that in the confines of the strip bay - 13 - there was no place to give PN a distraction blow. To do as he did was contrary to his training amounting to excessive force. This exact situation had never come up in training and no specific training focuses on the strip search bays. [32] On redirect-examination Mr. Ireland was asked whether the blow to PN's head and the grabbing of PN’s jaw was a "pain compliance technique" as taught in the training program. He said that it was not, because pain compliance focuses on isolating a part of the body such as a joint and causing pain so that the recipient will move away from the pain in the direction desired. He also said that not following directions does not make it reasonable to apply force. He remained of the view that the strike to the back of PN’s head was with a closed fist as suggested by the distance that his head moved after being struck. Further, had the grievor struck PN in such a jabbing motion with an open fist he would have been at risk of breaking his fingers. [33] As set out above, the grievor also testified. He said that he had been in the strip search area for 20 to 30 minutes, performing strip searches of other inmates, when CO Sirrs brought PN into the area. The grievor testified that CO Sirrs told him that PN had not yet been frisk-searched. The grievor said that he directed PN into the search bay and told him to sit on the bench. [34] The grievor testified that he told PN a number of times to turn around and face him. Inmates are required to face the CO so that their hands are visible at all times. The grievor said that he did not force, or require, PN to turn around and - 14 - face him the entire time. He said that PN was being generally compliant in removing his clothing. The grievor also testified that PN told him he didn't belong there, and he wanted to use the phone. The grievor assured PN that he would be able to use the phone when he was taken to his unit. [35] The grievor testified that his alertness was further heightened by the order in which PN removed his clothing. He said that inmates generally would remove their underwear last. PN chose to remove his sweater last. [36] Further aspects of his evidence are set out in the analysis below. The Submissions of the Parties [37] The employer submitted that the video discloses a crystal-clear assault. It said that there are five points to consider. First, PN was completely naked when he casually tossed his sweater towards the grievor. Second, the grievor caught the sweater and briefly paused. Third, PN displayed no threatening behavior at any point. Fourth, the grievor punched PN so hard that his head snapped forward. Fifth, he grabbed PN by the neck/throat area and slammed him to the floor like a ragdoll. It said that such an attack is not required by law, was unreasonable and excessive. The employer submitted that the grievor knew that the videotape would be reviewed and concocted an elaborate story about his alertness being heightened because of the previous circumstances involving PN. It submitted that his claim that he was deliberately acting calmly in order not to alert PN to his - 15 - heightened state is absurd and was never adequately explained by the grievor in his evidence. [38] The employer relied upon regulation 778 (s.7) of the Ministry of Correctional Services Act R.R.O 1990 and the Ministry policy Adult Institutions Policy and Procedures Use of Force, AD 04 19 01, October 2009. The employer also reviewed the jurisprudence relating to use of force in a correctional institution. [39] It said that section 7(1) of Regulation 778 permits use of force only if required to achieve one or more of the objectives set out in the section. It submitted that none of the four objectives were engaged here: there was no discipline to enforce; there was no assault to defend against; PN was neither rebellious nor disturbed; he was complying with the search. It said that if one of the four criteria was engaged, then the additional requirements of section 7(2) were not met. It said PN was a naked, motionless, defenseless teenager who posed no threat. There is no objective basis upon which to conclude that PN posed a threat to the grievor. It said that the grievor’s story was an after-the-fact justification for the unreasonable use of force that there was no heightened state of alertness. [40] As for the policy, it said that the policy is expanded upon in the training received by COs with respect to the Use of Force Management Model, which emphasizes disengagement, calling for backup, allowing for personal space and minimizing physical interventions. It said that the more likely interpretation is that the grievor was punishing PN. - 16 - [41] The employer noted that one of the grounds for discharge was the failure of the grievor to file a proper occurrence report. It conceded that this was not the most pressing aspect of these proceedings. It reviewed the requirements of section 7(3) of regulation 778 and the training given in writing occurrence reports involving a use of force. [42] The employer submitted that it is not necessary to make a finding of credibility with respect to the grievor, given the evidence disclosed by the video recording. However, it said that the grievor's demeanor as a witness was positive, but his story simply wasn't consistent with the probabilities of the situation. It said that the union's failure to call the other COs to corroborate his story should lead to the adverse inference that they would not have corroborated these events upon which the grievor relies to explain his purported heightened state of alertness, leading to the use of force. [43] The employer submitted that COs are expected to be professional and rise above temper. The grievor was trained and had had his training refreshed on the proper use of force. He was expected to recognize and adjust to erratic inmates, to analyze and to plan constantly. He was trained to defuse tense situations through verbal skills, to take the least intrusive approach and not to use force unless necessary. It said that the video footage showed PN to be utterly nonthreatening. The only conclusion from watching the video is that a much larger CO got startled and punched a naked, defenseless kid. The force used - 17 - was excessive and the grievor’s behavior was aggravated by his failure to comply with the requirement to file a proper occurrence report; he was in breach of professional conduct rules; he showed neither remorse nor understanding of the seriousness of the situation; he blamed others and his purported lack of training. He was also a short-term employee of just 3 1/2 years. The employer submitted that there is no reason for the Board to conclude that the employment relationship could be rehabilitated. Finally, the employer submitted that section 7(4)(a) of the Crown Employees Collective Bargaining Act S.O. 1993, c. 38, restricts the Board from substituting a penalty that would provide for the return of the grievor to a position that would involve direct responsibility for or an opportunity to contact inmates should I find that he applied more force to PN than the minimum force necessary for self-defense or to restrain PN. [44] The employer relied upon the following authorities: Ministry of Correctional Services Act, R.R.O. 1990, Reg. 778; Re Government of Province of British Columbia and British Columbia Government Employees Union (Correctional Services Component) (1987), 27 LAC (3d) 311 (Hope); OPSEU (Beltrano et al.) and Ministry of Community Safety and Correctional Services, GSB #2003-3597 (August 11, 2008) (Petryshen); OPSEU (Zolnierczyk) and Ministry of Community Safety and Correctional Services, GSB #2005-0823 (February 8, 2011) (Herlich); R v Feeney, (2008) 238 CCC (3d) 49 (Ont CA); Crown Employees Collective Bargaining Act, 1993, S.O. 1993 c. 38; OPSEU (Horan) and Ministry of Public Safety and Security, GSB #0670/01 (October 23, 2002) (Herlich); OPSEU (Collin) and Ministry of Community Safety and Correctional Services, GSB - 18 - #2001-1578 (March 30, 2007) (Harris); OPSEU (Gillis et al.) and Ministry of Community Safety and Correctional Services, GSB #2003-1520 (May 16, 2008) (Abramsky); OPSEU (Lavallee) and Ministry of Community Safety and Correctional Services, GSB #2007-2778 et al. (September 27, 2011) (Watters); OPSEU (Marshall et al.) and Ministry of Community Safety and Correctional Services, GSB #2012-1308 et al. (September 16, 2013) (Abramsky); OPSEU (Adam) and Ministry of Community and Correctional Services, GSB #2003-0892 (February 25, 2005) (Herlich); OPSEU (Burke) and the Ministry of Community Safety and Correctional Services, GSB #2010-2409, September 13, 2013 (Petryshen); OPSEU (Esser) and the Ministry of Community Safety and Correctional Services, GSB #2011-3658 etc., December 14, 2015 (Watters); Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.); OPSEU (Gour) and Ministry of Community and Correctional Services, GSB #2014-4668 (March 8, 2016) (Misra) [45] The union submitted that the grievor's response was instantaneous and part of one continuous physical event lasting less than three seconds from the toss of the sweater to the act of putting PN on the ground. It said there was no time for the grievor to pause, just to react. There was no time to think in detail; he had to act in the moment. It said that consideration of the incident should be put into that context and not be subjected to the luxury of hindsight. [46] The union said that given the rapid pace of events it was reasonable for the grievor to conclude that he was facing a threat. It said that it was irrelevant that PN was naked and not moving for that fraction of a second. It said the grievor - 19 - was properly concerned that there might have been a concealed weapon. Further, the grievor has been consistent throughout in his belief that the throw of the sweater was a distraction as a precursor to a possible attack. Accordingly he stepped forward and struck the grievor initiating his own distraction and did in fact transition him to the ground. It said that PN was brought to the ground in a controlled fashion, not thrown like a ragdoll. It said that there had been no training for such a takedown from behind in a confined space. [47] The union submitted that there was not one or another specific circumstance that heightened the grievor’s state of alertness, it was the culmination of all the matters that he testified to that gave him reasonable cause for concern. The union said that it was not an option for the grievor to step back because of the limited space between the bays and the desk. In any event, if there were other options open to the grievor, there was not the time to consider them. His choice was a reasonable choice. [48] The union said that use of force cases are extremely fact specific. It relied upon a line of cases that caution against a decision-maker substituting their hindsight in judging a spontaneous reaction in cases such as this. It said that the grievor had a basis for his reasonable and honest belief that an attack was imminent. It said a distinction has to be drawn between misjudgment and a momentary reaction. It said that it is not appropriate to weigh to a nicety such momentary reactions. The grievor had a reasonable basis for using force, and the appropriate degree of force was used. - 20 - [49] The union submitted that the employer's cases were largely distinguishable on the facts. It said that the application of excessive force by a CO may lead to discipline but does not inexorably require discharge. It said that, unlike in the cases relied upon by the employer, the grievor never denied using force. He did not throw gratuitous punches, nor maliciously hit PN. He did not create the circumstances that led to the use of force. The blow struck here was not in retaliation for an earlier assault. [50] The union submitted that both Mr. Hiller and Mr. Ireland agreed that there was no precise formula to determine the proper use of force. They said that it was not improper to prevent harm to you or to others. Mr. Ireland agreed that force may be used in response to verbal threats, and there is no prohibition against using a hold that one was not taught in training. He also agreed that there was no training provided on how to take an inmate down in a confined space such as a search bay. [51] With respect to the other COs not giving evidence, the union submitted that the employer bears the onus in this case and its failure to call evidence to contradict the grievor should lead to the adverse inference that such evidence would not have contradicted the grievor. The union also submitted that the various notes of meetings, interview notes and occurrence reports of people who did not testify were not admissible for the truth of their contents. The union also submitted that - 21 - there is no evidence that the inmate suffered from mental health problems, nor did the judge in the criminal trial make any such finding. [52] The union took issue with the employer's assertion that the grievor had fabricated his account and that it evolved as time went on. It noted that it is many years since the incident took place and the grievor has been questioned many times over the years. He was never asked for a narrative but simply has responded to questions put to him. If specific questions were not asked, it should come as no surprise that he didn't provide those answers. The union submitted that on the central points the grievor's explanations have been consistent. [53] The union also took issue with the employer's submission that the grievor was not in a heightened state of alertness because he did not display any such state on the videotape. It submitted that his explanation that he was trying not to alert the inmate to his concerns was reasonable. He was concerned that something could happen, and, with the toss of the sweater, he thought that something was coming. Things happened very quickly and he reacted quickly in the face of the unexpected actions of PN. It was a reasonable conclusion that there was a threat that might involve a concealed weapon. Further, the steps that he took were also correct. He took PN's hands out of play with the distracting blow to the head; he smoothly moved him to the ground, and then restrained him with the help of his partner and others. The union said that the Board should be exceedingly cautious in substituting its judgment with respect to a split second choice. It said - 22 - that the lack of injuries or complaint from the inmate speaks to the grievor’s actions as having been a measured response. [54] The union conceded that the occurrence report was deficient, but there was no attempt to hide the fact that there had been a use of force. He knew that it was being videotaped, and he did not try to hide anything. [55] In all the circumstances, the union submitted that discharge was not warranted. Although he was a junior employee, he had no disciplinary record, and there is no reason to believe the employment relationship is beyond being rehabilitated. The union said that the appropriate outcome would be to reinstate the grievor, remain seised and remit to the parties the choice of job to which he would return. [56] The union relied upon the following authorities: Providence Care v. OPSEU (2009), 189 L.A.C. (4th) 385 (R. Brown); Alberta (Department of Children and Youth Services) v. Alberta Union of Provincial Employees (George Williams) (2009), 185 L.A.C. (4th) (Sims); Ontario (Ministry of the Solicitor General & Correctional Services and OPSEU, (GSB #164/95 et al, October 23, 1997, Gray); Ontario (Ministry of the Solicitor General & Correctional Services) and OPSEU, (GSB #706/96, September 17, 1997, McKechnie); Ontario (Ministry of Correctional Services and OPSEU, (GSB #556/81, December 11, 1984, Verity). [57] In reply, the employer submitted that many of the authorities relied upon by the union were not corrections cases but health sector cases. It submitted that care - 23 - must be taken in the application of health sector cases to a correctional situation. It said that all of the cases relied on from the healthcare sector involved patient attacks against the grievors. Further, there is a large distinction here between section 7 of the Regulation and the employer's policy with respect to the use of force. The policy is more restrictive, which would have no application in the healthcare sector. [58] The employer submitted that whether or not the actions of a CO were malicious is not the test. What falls to be determined is whether the actions taken were the least intrusive, proportionate and a response to an immediate threat. Also, the speed with which the incident transpires isn't helpful because cases like this always happen quickly; it's often a matter of seconds. Further, the brevity of the interaction does not relieve the grievor of the responsibility to utilize the least intrusive means, respond proportionally and assess whether or not there is an immediate threat. [59] The employer submitted that some of the Grievance Settlement Board cases relied upon by the union were old and no longer represent the law. Societal and legal values have evolved away from showing deference to split second actions involving use of force against an inmate. [60] The employer said that many of the cases it relied upon were very close to the facts of this case. It said in the instant matter nothing compelled the grievor to enter the strip search bay. He did so of his own accord, as was the situation in - 24 - the cases it relied upon where a CO entered a cell, thereby creating the situation that led to the assault. [61] With respect to the evidence of Mr. Hillen and Mr. Ireland, the employer submitted that they agreed in their testimony that it may be permissible to preemptively attack an inmate if the CO thought the inmate had a weapon. Here, the grievor did not testify that he saw a weapon or thought he saw a weapon. It was conjecture. It was open to him to just wait. It was also open to him to have frisk-searched PN at the outset. [62] With respect to the failure to call the other COs and whether any adverse inferences should be drawn against the employer, it submitted that it is relying upon the video recording. It is not necessary for the employer to look to the other circumstances if it establishes that the force used was excessive. It submitted that if I disagree, there is still no immediate threat, as required by section 7(2) of the Regulation. It is the union’s defense that the grievor had this subjective belief, and that is its case to prove. It said that the grievor’s evidence does not satisfy their onus. Analysis and Decision [63] I begin with consideration of what evidence I have before me. At the outset of the hearing the employer provided a Book of Documents running to 29 tabs. That book was marked as an exhibit subject to identification of the documents. Further, during the course of Mr. Hillen's examination-in-chief the union - 25 - specifically objected to notes taken by Mike Gimson, Manager Security & Investigations, and Terry Rioux, Acting Deputy Superintendent Projects, created as part of the fact-finding led by Mr. Gimson. The parties agreed that those notes were documents that Mr. Hillen had received and relied upon. However, the union did not agree that they were admissible for the truth of their contents. I note that those notes also underpinned the Use of Force Fact-Finding Report prepared by Mr. Gimson, dated September 1, 2011. Neither Mr. Gimson, Mr. Rioux nor those interviewed testified. Accordingly, these documents will not be relied upon as proving any of the purported facts set out therein, since the union did not have the opportunity to cross-examine the makers of them. Further, the grievor takes issue with the accuracy of the notes pertaining to his interview by Mr.Gimson. [64] Also in the Book of Documents were the occurrence reports filed by the COs who were in A&D and by Operational Manager John Burritt. Again, given that the authors of these documents were not called to give evidence, these documents will not be relied upon as proving any of the purported facts set out therein. Accordingly, the facts relating to the justness of the grievor’s discharge from his employment fall to be determined on the evidence of Mr. Hillen, Mr. Ireland and the grievor and any documents they authored, along with the videotape evidence. I have carefully considered the evidence, jurisprudence and submissions of the parties in reaching my conclusions. - 26 - [65] Turning first to the CCTV recording, there can be no doubt that the visual image portrays a relaxed, uneventful, strip search event up until PN tossed the sweater over his shoulder. Even that action is casual and unhurried. It is not thrown with force, but rather is lobbed in an arc with its apex at the level of the grievor's head and is caught by the grievor at his lower chest height. It was startling and unexpected. What is also unexpected is the grievor's reaction. With the sweater grasped in his right hand, and with the momentum of him briskly striding forward, he punches inmate PN in the back of the head. It is a hard blow, judging by the forward motion of PN's head. The grievor grabs PN by his skull and jawbone and forcibly takes him to a prone position on the floor, pivoting PN 180° in the process. The CCTV recording does not show PN on the ground because the half height walls of the strip search bays block the view. Taken on its own, the recording shows an unnecessary and excessive use of force. [66] Regulation 778, R.R.O. 1990, under the Ministry of Correctional Services Act governs the use of force by employees 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. - 27 - (3) When 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. [67] The Ministry policy applicable to the use of force at the time is found in the Adult Institutions Policy and Procedures, Subject Number ADI1901. The relevant portions of which read as follows: Page 1: 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 of the circumstances of the case. 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. - 28 - Page 2: 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. (emphasis in original) [68] The grievor's justification for the use of force was that he believed the tossing of the sweater was an assault and the precursor of a further assault upon him by PN, who was possibly armed. That is, in the context of section 7(1)(b) of Regulation 778 and the policy in force at the time, he was defending himself from an assault thereby permitting the use of force. Again, referring only to the CCTV recording there is nothing to indicate that the toss of the sweater was either an assault itself or the precursor to an assault. The grievor’s explanation for this is that he had a heightened sense of alertness to the possibility of trouble from PN, which he carefully, and consciously, hid from PN. [69] The grievor testified that he had had the full training of a Youth Services Officer as well as the full training of a Corrections Officer. He had never received any training with respect to concluding searches in a confined space nor, specifically, in a search bay. Nor was he ever trained in how to conduct a search of an inmate who is facing away. He was taught to use distraction techniques in order to take an inmate’s mind off what they are thinking and to knock them off balance. The techniques he was taught included an open hand to the head, - 29 - using only as much force as necessary. He said he was never taught that it was prohibited to strike the back of the head. He also said that his training specifically included taking control of an inmate by first taking control of their head. He likened it to controlling a snake by controlling its head. Not having had any previous training in the techniques that he employed, it is more likely than not that he acted on the spur of the moment without weighing all of the options available to him. That would certainly be consistent with the CCTV recording as well. [70] In his examination-in-chief the grievor testified that the episodes in A&D, near the warrant desk, that contributed to his heightened sense of alertness were: the report of the OPP transport unit, PN's noncompliance at the warrant desk in not identifying himself and in leaning on the desk, the fact that he was not frisk- searched and the stains on his sweater and pants that appeared to be blood. He also testified that his heightened state of alertness was also contributed to by CO Sirrs telling him, when he brought PN to the strip-search area, that PN had not been frisk-searched, PN’s refusal to turn and face the grievor during the strip search, the fact that PN took his clothes off in the reverse order of the norm and the fact that he kept making statements that he did not belong in custody. The grievor testified that these were suspicious behaviours but not threats. [71] The grievor testified that he was particularly concerned that PN took his sweater off last, especially because the sweater was the first article of clothing the grievor had asked for. He said that the usual process is to ask for the inmate’s pants and - 30 - underwear last. He drew the conclusion that PN might have a weapon taped to his chest or hanging on a string around his neck because he left his sweater on to the very end. The second last articles of clothing that he removed were his socks. The grievor would have known for 10 full seconds, from the time PN began taking off his socks to the time he began taking off his sweater that the sweater would be the last article of clothing removed. If the grievor had actually concluded that there was a chance that the grievor had a weapon taped to his chest or hanging from his neck he had sufficient time to engage the assistance of CO Bingley, who was sitting at the desk behind him, or to require the grievor to turn around, or to perform the mandated frisk-search or to take such other action as someone in his heightened state of alertness would do. He chooses to do none of these things. The video recording shows that the sweater is very loose fitting with a collar that is wide enough to show portions of PN's shoulders; it is also low cut at the front. PN was not wearing a shirt under the sweater. The grievor’s view of PN’s sweater from both the front and back would clearly show that he did not have anything around his neck on a string. Certainly, when he took the sweater off, with his back to the grievor for two seconds prior to tossing it, it was evident that there was nothing hanging around his neck. Had the grievor truly been in a heightened state of alertness, and reassessing the situation on a continuous basis, as he was trained to do, he would have ruled out any weapon hanging on a string around PN’s neck. To continue to rely on that concern at the hearing seriously undermines his credibility, particularly with respect to the fear of a concealed weapon. In all of the circumstances, it is not reasonable, or consistent with the preponderance of the probabilities that the grievor was - 31 - harbouring a concealed weapon, either hanging around his neck or taped to his chest. [72] The grievor testified that he knew that he was being videotaped. He and CO Bingley reported the use of force to his supervisor OM Burritt. The grievor was asked whether Burritt’s occurrence report was accurate in setting out that the grievor and Bingley told Burritt "that no blows were exchanged between themselves and the inmate". The grievor testified that he would not have used those words, and that OM Burritt was paraphrasing, but that description was more like what had happened. Burritt told them to file occurrence reports. [73] The grievor well knew, from both his training and experience, that an occurrence report relating to use of force is to contain significant detail. Both the Regulation and the Policy set out above contain the following requirement: When 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. [74] The grievor filed an occurrence report later that day. It reads as follows: On Sunday, June 19, 2011, approximately 1415 hrs. at Central East Correctional Centre, in Admitting and Discharge, I was working a X12 (1200- 2200 hours) shift. Approximately 1415 hours, I was working in the search bay area conducting a strip search on inmate [PN]. When inmate [PN] was asked by this writer to pass his sweater to be searched, inmate [PN] threw his sweater in this writer's face. I directed inmate [PN] by his right arm, and using a loud clear voice “On the ground”. - 32 - Inmate [PN] was not compliant through this process, and continued to not follow staff direction. Inmate [PN] was placed in hand restraints, and escorted to cell number 13, I informed inmate [PN] why he was placed in restraints. Inmate [PN] understood, and completed getting processed. [75] The occurrence report form requires that the writer define the subject/nature of the report. In this space the grievor filled in, "Use of force on inmate [PN] in Admitting and Discharge." The union submitted that the grievor knew that this incident would be reviewed, and that this review would include scrutiny of the video recording. It said that the grievor had nothing to hide. However, the occurrence report completed by the grievor bears little resemblance to the incident on the videotape. The report does not explain any of the circumstances that led the grievor to adopt this purported heightened state of alert that he testified to at the hearing. Most tellingly the report makes no mention that the grievor had concerns that PN might have a concealed weapon that he was about to use on the grievor or that PN was about to physically assault the grievor with his hands or feet. This is the threat that the grievor says he was concerned about, that of a potential attack. Yet, the grievor's occurrence report simply says force was used because inmate PN threw a sweater in his face. In my view, this purported concern that the grievor had a concealed weapon does not fit with the preponderance of the probabilities, given that the grievor took no steps prior to the tossing of the sweater to investigate that possibility and did not report it to his supervisor. - 33 - [76] It is more likely than not that the grievor just reacted in the heat of the moment rather than after having assessed the situation. On his evidence, he had sufficient time to consider the possibility that PN had a concealed weapon; yet he did nothing concrete to deal with such a concern. His explanation that he was hiding his concern from the grievor is not reasonable. [77] It appears that the toss of the sweater jolted the grievor out of a routine strip search and into action, but the action taken was not in accordance with the law, policy or his training. The grievor was trained to act professionally and rise above temper. He was trained to defuse situations using verbal skills and to take the least intrusive approach. He had options available to him, Mr. Ireland outlined in his testimony, such as backing up a step to be out of range of a punch or kick or taking a defensive stance and giving PN clear directions. Instead, he went straight to using force to control an inmate who had been troublesome. The grievor stepped forward, punched PN in the back of the head and pulled him by the head to the ground. It was unnecessary to do so. [78] Further, the grievor has not demonstrated an appreciation for the significance of his actions. He did not demonstrate any understanding of the gravity of the situation, either when he told OM Burritt that no blows had been exchanged with PN, when he completed his occurrence report or at the allegation meeting. At each of these junctures he failed to show an understanding of the gravity of the situation and provide details, which would explain the use of force against PN. - 34 - [79] At the hearing the grievor had a difficult time admitting to the facts that are evident on the videotape. In his examination-in-chief he described the blow to the inmate’s head as a push. He specifically denied punching PN in the head. He said that it was an open fisted action. He also said, in-chief that he believed it was a successful use of force because there were no injuries, no complaint was filed by PN, the force was not excessive, and he had acted in good faith. In his cross-examination he also testified that he believed he acted appropriately. He continued to say that he did not punch PN, but rather he struck him. He then conceded that it was a soft punch, with a half-closed-fist. [80] In all of the circumstances, I find that PN never posed a threat to the grievor. Further, I find that the grievor struck PN forcefully in the back of the head reflexively because of the tossed sweater. I find that the toss of the sweater was neither an assault nor a threat of an assault. The grievor knew from PN's behavior in A&D that he was erratic. His behavior while disrobing was one more example of PN acting out and being disrespectful. [81] The employer had compelling reasons to discipline the grievor. He struck an inmate who posed no threat to him. The blow to the head was an unnecessary use of force contrary to the Regulation and Ministry policy. [82] In my view, discharge was an appropriate disciplinary response. As submitted by the employer, the grievor struck, with a hard punch to the back of the head, a naked, defenseless inmate, much smaller than him, who posed no threat. I am - 35 - mindful of the fact that correctional officers have a difficult and sometimes dangerous job. They deal with a difficult population that is, most likely, generally antagonistic towards them. In this case, there is not sufficient evidence to find that PN was being punished for throwing the sweater. However, as set out above, there is sufficient evidence to find, as I do, that the use of force was unnecessary and unlawful. Coupled with his failure to take the situation seriously either in reporting it to his supervisor or in his participation in the investigation, it is my view that the employer was justified in terminating his employment. [83] The grievor is a short service employee who continued to minimize the seriousness of his actions in the evidence he gave at the hearing. It is also more likely than not that PN was struck by the grievor with a closed fist because the grievor still had PN’s sweater clasped in his hand. In his testimony, the grievor continued, at the hearing, to falsely describe the punch in the back of the head as a push or a hit with a half closed fist. He also persisted in his assertion that he feared that the grievor had a weapon hanging from his neck even though PN's bare neck was clearly visible well before, and as, he strode towards him. He said that he was assessing the situation as he strode towards PN, which could not have been the case. Given as well that the grievor never accepted responsibility or acknowledged that the use of force was unnecessary, in spite of the clarity provided by the videotape, I, like the employer, find that the trust between the employer and the grievor has been irreparably harmed. Accordingly, the termination was appropriate and I would not substitute a lesser penalty. - 36 - The Decision [84] The grievance against the termination of the grievor's employment is dismissed. Dated at Toronto, Ontario this 29th day of March 2016. Daniel Harris, Vice Chair