HomeMy WebLinkAbout1990-1064.Mailloux.95-06-08
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ONTARIO EMPlOYÉS DE LA COURONNE
.- . CROWN EMPlOYEES DE l'ONTARrO
" 11111 GRIEVANCE
COMMISSION DE
SETTLEMENT RÈGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1ZS TELEPHONEITÉ.LÉPHONE: (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TÉLÉCOPIE : (416) 326-1398
GSB,# 1064/90
... OPSEU# 90C751-90C752
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Mailloux)
Grievor
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The Crown in Right of ontario
(Ministry of Correctional Services)
Employer
j3EFORE: B. Kirkwood Vice-Chairperson
I. Thomson Member
D. Clark followed by,
D. Montrose Member
FOR THE R. Anand, M. Cheng_
GRIEVOR Counsel
Scott & Aylen
Barristers & Solicitors
FOR THE J .' Benedict
EMPLOYER Manager, Staff Relations & compensation
Ministry of the solicitor General &
correctional services
D. Cost.en (for the testimony of P. ,Jacques)
Counsel
Legal services Branch
Management Board Secretariat
HEARING september 8, , 1992
February 4, 15, 16, 1993
April 26,' 27, 28, 1993 I
Ma y 10, 17, 18, 1993
November 15, 16, 1993 i
February 7, 14, 15, 21, 28, 1994
April, 5, 6, 11, 12, 18, 19, 1994
June 22, 23, 29, 1994
July 25, 28, 29, 1994
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DECISION
Initially Mr. Don Clark was the Employer Member on the board. On Mr. Clark's
request and the agreement of the parties, Mr. Clark was replaced by Mr. Montrose.
The grievor, Mr. Mailloux, was a Correctional Officer at the Sudbury Jail from
August 1977 to, his dismissal on June 21, 1990, On May 24, 1990 the Employer suspended the,
grievor for five days without pay, pursuant to Section 22(1) of The Public Service Act when it
learned that the grievor had been charged with nine counts of sexual assault and two counts of
committing an indecent act involving four former female inmates of the instítution, Ms, Sharon
Dudgeon, Ms. Dina Dinelle, Ms. Pauline Jacques and Ms. Denise McNally. The suspension
without pay was extended orally on May 15, 1990, and confirmed in writing on May 28, 1990, to
June 12, 1990. On June 11, 1990, the Employer extended the unpaid suspension to June 22, f'
1990. The grievor grieved his suspension on June 7, 1990.
On June 19, 1990, the grievor was invited to attend a meeting with his union
representative on June 21, 1990. He was advised that he was subject to discipline based upon
allegatíons made that led to charges laid against him on May 23, 1990, for nine counts of sexual
assault and two counts of committing an indecent act against four former female inmates and for
contravening the Public Service Act, Section 1O( 1) by breaching his oath of office and secrecy
by not faithfully discharging his duties as a public servant and by not observing and complying
with the laws of Canada and Ontario. He was discharged on June 21, 1990 and he grieved his
discharge on June 25, 1990.
All the incidents are alleged to have occurred in the Sudbury Jail (lithe jail 11) from
1989 to 1990.
A preliminary inquiry was held into the allegations made by the inmates against Mr.
Mailloux. After the preliminary inquiry was held, the Crown proceeded to trial on eight counts of
sexual assault. The Crown did not proceed on the charges made by Ms. Dudgeon and withdrew
the two counts of committing an indecent act. The grievor was acquitted of all charges at the trial.
After twelve days of hearing, on February 7; 1994, the Employerts representative
advised the Board and Union's counsel that it was abandoning the claims by Ms. Dudgeon to
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support the Employer's position to justly dismiss the grievor. It continued to rely on the
allegations made by Ms. Dine]]e, Ms. Jacques and Ms. McNally in support of Mr. Mailloux's
dismissal. The Employer's representative argued that the claíms made by the complainants gave
the Employer just cause to dismiss the grievor.
The Union took the position that none of the events occurred and therefore the
grievor was unjustly suspended and discharged. The Union also challenged the propriety of the
suspension as it alleged that the Employer did not conduct any investigation during this suspension
as required by subsection 22(1) of the Public Service Act. ,
In the EmpIoyerfs view, the Public Service Act does not require the Employer
to conduct the investigation and therefore the grievor was justly suspended as the Employer was
involved in an investigation of the grievor's conduct.
The evidence in this hearing focussed on several areas: the background given by the
Employer witnesses, the allegations made by the complainants, the grievorts denial of the
allegations and his testimony showing the unlikeliness of the events, and the evidence of
supporting witnesses.
There were numerous inconsistencies between the statements given to the police,
testimony at the preliminary inquiry, testimony at the trial and in testimony before us. Therefore in
the first part of the decision, we have outlined the basic elements of the complainants! testimony in
their direct examination before us, unless otherwise noted. and the descriptions are in no way
comprehensive as to the details. We have left a more critical analysis to the substance of the
decision.
The Initiation of the Complaints
Although the Employer abandoned the claims made by Ms. Dudgeon, her .'
involvement is relevant to the investigation into the complaints against Mr. Mailloux. Her
allegations initiated the investigation into Mr. Mailloux1s conduct. On April 18, 1990, Mr. G.
Parent, a Shift Supervisor prepared an Occurrence Report of allegations (¡f'Sexual improprieties
made to him by Ms. Dudgeon, an inmate at the Sudbury Jail, against Mr. Mailloux. Mr. Parent
met with Mr. Kenneth Ryan, the Acting Assistant Superintendent at the time, and prepared a report
for Mr. Ryan and Mr. Hoosen, the Superintendent On April 19, 1990, as a result of the
allegations made by Ms. Dudgeon, Mr. Hoosen advised Mr. Ryan that an investigation would take
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place. Ms. Dudgeon repeated her allegations to Constable Norquay while she was in jail on April
26, 1990.
On April 30, 1990, Patricia Bulloch, a volunteer with the Elizabeth Fry Society
reported to Mr. Kirby Blais, a Security Officer at the jail, that she had heard that one of the officers
was "flashing" female inmates. She later identified the complainant as Ms. Nina Dinelle, a former
inmate, and the staff member involved as Mr. Mailloux. Ms. Bulloch also advised Mr. Blais that
there may be other complaints made by other inmates and it may involve other staff members.
, Constable Allain also learned that Ms. Dinelle had complained of an assault.
Constable Allain visited Ms. DineIIe at her home in North Bay on April 30, 1990, but did not take
a statement from her. Later that day, he,m,etwith Mr. Ryan to discuss the allegations.
Mr. Ryan advised Constable Allain of the conversation between Ms. Bulloch and
Mr. Blais, and of the allegations made by Ms. Dudgeon. Mr. Ryan advised Constable Allain that
from his observations of Ms. Dudgeon's actions in the jail, Ms. Dudgeon had obvious psychiatric
problems. She alleged seizures, was self abusive and was an administrative problem and had to be
kept segregated. Mr. Ryan also provided Constable Allain with Ms. Dudgeon's OMPAAC system
report which showed various allegations of sexual assault, none of which resulted in convictions
of the alleged assaultor, and some of which resulted in convictions of public mischief against Ms.
Dudgeon.
Constable Allain advised Mr. Ryan he would investigate both Ms. Dinelle's and
Ms. Dudgeon's allegations. Constable Allain advised Mr. Ryan that he would keep Mr. Ryan
informed during the course of the investigation and would forward any information upon receipt.
Mr. Ryan then prepared an Incident Report on May 1, 199] for Mr. Migneault, the Acting Deputy
Superintendent, and a memorandum on May 2, 1990, outlining the reported allegations to Mr.
William Roy, the Regional Manager. Mr. ,Ryan, however, had little involvement with Constable
Allain. ,,0!l May 23, 1990, he received a memorandum from Mr. Hoosen advising him that the
grievor had been arrested on May 23, 1990 on the nine counts of sexual assault and two counts of
indecent acts involving four former inmates. This was the first time that Mr. Ryan had been made
award of other complaints laid, He was also advised that Mr. Mailloux was suspended without
pay for five working days. Mr. Ryan met with Mr. Mailloux and gave him a copy of the
memorandum of May 23, 1990, suspending him without pay. Mr. Migneault also gave him a
copy, The suspension was extended on May 24, 1990. A trial date was to be set on June 13,
1990.
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In the period leading up to Mr. Mailloux1ss arrest, Constable Allain met Ms. Dinelle
and met Ms. Dudgeon to take their statements. Constable Allain accompanied by Constable B'ain,
a detective of criminal investigations with the Sudbury Regional Police Department, visited Ms.
Dinelle at her home in North Bay on May 3, 1990. Constable Bain did most of the investigation,
but was assisted by Constable Allain. Constable Bain spent approximately a half hour speaking to
Ms, Dinelle about the facts to allow her to feel more comfortable and to let her to sort out the
chronology of the facts before taking down her statements. Constable Bain asked Ms. Dinelle to
describe what happened. Ms. Dinelle described incidents occuring in 1989. Constable AIlain and
Constable Sain took down Ms. DineIle's statement. Constable Allain said he took her statement
for the most part verbatil11;. Constable Allain says that she was cooperative but her recollection was
hesitant. The statements were then reduced to writing on department fonus. When the statements
were completed, they were read them back to Ms. Dinelle and she signed them. Constable Bain
returned on May 14 or 15, 1990 alone, to review Ms. Dinelle's statements with her, and to attempt
to narrow down the dates of the allegations to more specific months and dates. Ms. DineIle was
not able to be more specific, and he made no changes to the statements. Constable Bain gave her a
typed version of her statements. Prior to the preliminary inquiry, Ms. Dinelle recollected some
differences that she wrote in, which came out at the trial.
On May 15, 1990 Constable Allain visited Ms, Dudgeon alone and took her
statement. She was not visited by Constable Bain.
Constable Bain also obtained statements from Ms. McNally and Ms. Jacques, He
followed the same procedure, letting them become comfortable before taking their statements. The
first time he met Ms. Jacques, she had a cold or flu, but he believed that she fully comprehended
the procedure and her statement Due to her illness, however, he took down another statement on
May 21, 1990, again following the same procedure, He said that she appeared relaxed and
understood the circumstances. He provided a synopsis of the charges laid against Mr. Mailloux
for Mr. Hoosen, Constable Bain did not meet Mr. Mailloux until his arrest on May 24, 1990.
Mr. Ryan was asked by Constable Allain to determine if it was possible that the
events could have occurred as alleged, Mr. Ryan reviewed the witness statements, log books,
shift schedules and bed books to assess whether it was possible for the incidents to have occurred
as alleged, Mr, Ryan provided us his report and testified on his findings.
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Another set of circumstances which is not part of the incidents alleged against Mr.
Mailloux, but forms part of the background and impacted in part on this case involved Correctional'
Officer Sizer. He was an unclassified correctional officer from April 1986 to his discharge on
October 23, 1989. He was charged with sexually assaulting an inmate Wanda Stefan in 1989.
Ms. Dinelle also charged another Mr. Sizer with sexual assaults at the same time as she laid
charges against Mr. Mailloux. Mr, Sizer was acquitted of all charges. Mr. Sizer has not been
employed at the jail after October 23, 1990.
Backp'round
In order to assess the allegations and place them in context, it is necessary to have
some background about the Sudbury Jail. The Board visited the jail early in the hearings and took
a VIew.
The Sudbury Jail is located in downtown Sudbury. It is a maximum security
institution with él total capacity of 187 inmates which includes premises for eleven female beds.
The usual complement is œtween 135 to 140 male inmates and approximately four female inmates.
Adjustments in the housing arrangements are made when the female component increases.
Approximately 50% inmates are awaiting court dates and 50% have been sentenced to two years
less a day.
The jail is composed of three floors, the main floor, the second floor and the
basement. The main floor and the second floor are relevant to trus arbitration. Each area of the jail
is designated by a letter. The most relevant areas are the A Area, the medical area, and the yards on
the main floor, and the library, lunch room, muster room on the second floor and two stairways
connecting these fioors. A Area is com¡x>sed of three corridors which house inmates. Within each
corridor, the cells and table area, the range, are enclosed by bars, and are separated from the guard
walk which encìrcles the A Area. The femàIe beds are located in Area A, Corridor #1. Corridors
#2 and #3 are usually'>male corridors but are used for females when necessary. If there are females
housed in adjacent corridors, the door between the corridors is usually left open. Corridors #2 and
#3 are also used to segregate inmates who do not get along with others. Other residential areas for
inmates are B Area, C Area, D Area, and E Areas. There are also three segregation units, two
beside the Medical Health Area, two cells near the Mechanical Room called F Segregation which is
used [or administrative purposes, such as for isolating inmates for misconduct or for sickness. C
Area has eight segregated cells with a shower at one end, a staff washroom and a telephone room
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for the use of segregated inmates. There are three exercise yards, one in Area A which is not used
frequently, a middle yard and a main yard which is used when the Yard Offícer is on duty.
The jail is staffed by fifty-eight classified correctional officers of which forty-six are
male and twelve are female. They also are staffed by eleven unclassified correctional officers of
which eight are male and three are female,
The staff work a combination of eight and twelve hour shifts, based on a five shift
rotation as follows:
7:00 a.m. to 7:00 p.m.;
11:00 a.m. to 11:00 p.m.;
7:00 p.m. tD7:oo a.m.;
7:00 a.m. to 3:00 p.m.;
3:00 p.m. to 11:00 p.m.
The Shift Supervisorls Roster Book indicates who was on duty, where they were
assigned, and the times of assignment. Officers are usually designated to work in specific areas of
the jaìl. Some assignments, such as Library, and Runner, have more flexibility of movement than
others. The Spare Officer also works where needed, and can be found in any part of the facility at
any time, The Work Boss or Cleaner Boss, is usually a correctional officer who is not assigned to
a specific area. He or she is put in charge of one or more inmates for the purposes of doing work
within the institution', There are many officers who also could be assigned to supervise inmates
cleaning as part of their duties, such as the library officer or the yard officer. The first floor
runner, the H officer, could be assigned to sûpervi~e cleaning the H Area between A and B areas,
the I Area officer could be assigned to supervise inmates clean the centre floor, or lunch room if
there is limited inmate movement, and the G Officer assigned to admitting and discharged could be
asked to supervise cleaning. The medical officers can be assigned the supervision of cleaning in
the medical area. The officer supervising cleaning has a radio, as would the officer supervising .
li brary.
The bed book is maintained and updated daily to show where the inmate is housed,
The Area Log Books are maintained on a continuous basis to log the arrival and departure of
officers, the routine within the corridor and anything special that happens in the area. The yard
book is maintained by the yard officer and is constantly updated. It notes the arrival and departure
of inmates.
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The incidents in this hearing occurred mostly in the A Area. Usually only one
officer is assigned to A Area. Relief is obtained' by phonìng the spare officer. The relieving officer
knocks on the door or kicks the door or knocks the pipe chase to signal his or her anival. Inmates
sometimes shout if someone is there. Inmates could hear noises in the other corridors if the door
between the corridors are closed. Although any officer can come into the A Area, it usually would
be the floor runner, or a spare officer coming to relieve the area officer. At the time of the alleged '
inddents, officers visiting the area were not recorded.
The officer inside the area, the area officer, has the key to the main door between
the main hall and A Area. The main door to the A Area is supposed to be locked, but it was not
always. After alle'gations were made of the sexual assaults by Mr. Sizer, the door to A Area was
often left open,
The floor runner, the H officer, moves between A and B Area, both of which are
on the main floor, and is responsible for all inmate traffic on the main floor in the jail and escorts
the inmates along the mainf1oor. The f100r runner carries a radio that is always turned on and can
hear everyone who is placing a call within the facility. He or she has the keys to the corridors and
is the, only person able t9 take an inmate from the inmate's resident corridor. To get into the
corridors, the area officer has to call the first floor runner.
Inmates are always escorted if they leave their corridor. If the inmates go to the
yard, the floor runner would release the inmates to either or both of the yard officer and the runner.
The runner normally walked behind the inmates. If the door to the 'area was locked when the
inmates were returned, the runner W04ld kick the door to signal their presence.
A similar procedure was used when inmates were taken to the library. The floor
runner would radio the top floor runner or the library officer to confirm that the officer could send
up to six inmates to the library. If there were stragglers, the Door runner would advise the library
offìcer who would either come and escort the inmates or refuse them access to the library at that
time.
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Nina Dinelle
Ms. Dinelle was admitted to the Sudbury Jail on March 3, 1989, on charges of
aggravated assault and assault causing bodily harm. On August 2, 1989, she was sentenced on
these charges and received a three month sentence. Although her sentence was to tenninate on
October 2, 1989, she was discharged on September 8, 1989.
Ms. Dinelle did not make a complaint against Mr. Mailloux until she heard from
Ms. Patricìa Bulloch of the Elizabeth Fry Society about nine or ten months after she was released
from jail, that another girl had been sexually assaulted at the jail. Ms. Dinelle explained that this
was her first time in jail and she did not complain during her incarceration, as she was afraid of
what the guards may do to her., For the same reason she did not tell any of the volunteers from the
Elízabeth Fry Society about her allegations, although she discussed many other issues with them.
Ms. DinelIe said she did not use a phone to tell anyone outside the facility of the incidents as it was
not far from the guard's desk and the female inmates could eavesdrop. She said she did not
complain to the ombudsman, because she said she was not sure that she could about a sexual
incident.
Ms. DineIle said that she did not disclose any of the particulars of the allegations to
Ms. Bulloch, but asked Ms. Bulloch for the name of the officer in charge of the investigation. As
a result, she gave her statements to Constables Bain and Allain.
Ms. Dinelle confinned that Constable Allain and Constable Bain met her on May 3,
1990 for about four hoûrs to~'take a handwritten statement and that Constable Bmn visited her again
at her home in North Bay on May 14 or 15, 1990 and gave her a copy of his summary of her
statement. She read Constable Bain's typed version of the events at her leisure, and was given the
opportunity to tell him if she needed to make changes, or any additions. She understood that she
could change either her handwritten statements or the typed version before she signing the
statements. Ms. Dinelle said she made changes after the second visit and three weeks prior to the
first preliminary appearance. She only told Mr. Sauve, the Crown in the criminal proceedings, of
the changes on the evening prior to the preliminary inquiry,
Ms. DineUe testified at Mr. Mailloux's preliminary inquiry on March 31. 1991 and
at his trial on October 17 and 18, 1991, January 6 and 7, 1992, as well as at the preliminary
inquiry of Mr. Sizer on July 25, 1991 and August 22, 1991.
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Ms, Dinelle was examined and cross-examined on her statements to Constable Bain
and Constable Allain, her previous testimony at the preliminary inquiry and at the trial.
We heard allegations made by Ms. Dinelle of five allegations of sexual assault by
Mr. Mailloux in 1989 during her incarceration.' Ms, DinelIe said that at no time did she encourage
or welcome Mr. Mailloux to have sexual relations with her.
Ms. Dinelle's First Incident·
At the hearing before us, Ms. Dìnelle claimed that the first incident occurred when
she was asked by Mr. Mailloux in the first four or five days of April 1989, to do cleaning outside
the corridor, while she was housed on corridor #1 in A Area.
Ms. Dinelle testified that one of the female guards told her that Mr. Mailloux had
asked her to clean the guard's room, the lunch room and the locker rooms. She went around 2
p,m. to 4 p.m. She said that was escorted by a runner and was met by Mr. Mailloux, either at the
stairs leading to the second floor or at the top of the stairs. She cleaned the lunch room and then
went into the women's locker room, when Mr. Mailloux closed the door separating the lockers
from, the washroom. When she was cleaning the sink, Mr. Mailloux approached her, grabbed her
by the breasts from behind and turned her around and forced himself on her, forcing her to kiss
him on the mouth. He was in front of her, holding her by her shoulders in a strong grip, She tried
to push him away, and telling him in afairly strong tone of voice "No, Stop it, You're not my
type". She told him that her father sexually abused. her when she was younger. Then he let go and
she pushed him off at the same time. She continued to clean the locker rooms and swept up
quickly, while Mr. Mailloux was there, She believed that she was then returned to her cell by the
runner who had brought her to clean.
She testified that the cleaning took about thirty minutes, of which he was grabbing
her for about three to five minutes. During the incident she was having t1ashbacks about her
father.
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t 'Ms. Dinelle1s Second Incident
In Ms. Dinelle's statement, she placed the second incident as occurring in "April".
At the arbitration hearing, Ms. Dinelle narrowed the time frame to approximately a week to ten
days after the first incident, and placed the incident prior to a meal, roughly between 3;30 p.m. to
4:00 p.m. She testified that this was part of a two part incident, but for simplicity we have divided
the incidents.
Ms. Dinelle was still on corridor #1. Ms. Dinelle believed a female officer told her
that Mr. Mailloux had asked her to clean the guard's lunch room and the locker room. She did not
believe that anything would happen to her again, as she had explained the incidents with her father,
to him,
The runner took her to the bottom of the stairs and she was met by Mr. Mailloux at
the top of the stairs. Ms. Dinelle was in the lunch room,"'bent over getting cleaning supplies from
underneath the sink:, when Mr. Mailloux grabbed her from behind and grabbed her breasts and her
bottom. She got up and tried to push him away, but he kept grabbing her for about a minute or
two. She managed to get the cleaning supplies she needed. She only had time to clean the lunch
room area very quickly. She kept running around a table which was in the middle of the room,
cleaning and wiping quickly at the same tíme, from the sink, to the walls and to the garbage, She
remembers dodging Mr, Mailloux, while he kept grabbing her breast and her bottom, She' kept
telling rum to stop in a fairly strong voice.' She thinks he said uëouple of times of I1c'monl1. I twas
then time to go back downstairs for supper. Mr. Mailloux took her down the stairs and she
believes a male runner escorted her to her cell for supper.
She cleaned for a total of fifteen to twenty minutes. She testified that he grabbed
her and chased her for a period of five minutes to ten minutes, and then she testified that it was less
than five minutes.
Ms. Dinelle's Third Incident
Ms. Dinelle testified in her direct examination, that the next incident occurred later
the same day. after supper. Ms. Dinelle was called to clean about 5:30 p.m. or 5:40 p.m.
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Mr. Mailloux met her. Mr. Maìlloux told her that the stairs behind medical area,
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which are reached by a door facing the men1s locker room, needed to be swept and mopped. He
escorted her down the stairs. She had just started to clean between the medical door and the stairs,
when he grabbed her by the shoulders, and pushed her down. He had a tight grip on her, he had
his penis out and kept talking to her like a baby, telling her to kiss it. She did not feel that she had
any choice. She took his penis in her mouth for a few seconds, and then managed to squirm
away, She wiped the stairs, while running up the stairs to the lunch room where there were two or
three guards. She could not recall whether Mr. Mailloux was running or wa1klng behind her. Mr.
Mailloux was with her until the shift changed at 7:00 p.m. She waited in the lounge, the muster
room, across from the lunch room for the guards to change their shift. She finished cleaning after
the shift changed under the supervision of another guard. She believed she was escorted back to
her cell in corridor #1, A Area by a female escort.
She recalled that the lunch room was dirty but could not recall if she cleaned the
lunch room before or after the incident.
She was away cleaning for about an hour to one and a half hours, of which a half
hour to forty-five minutes was spent cleaning the stairs and the lunch room, and thirty to forty
minutes cleaning the lounge. From the time that she was grabbed, turned around, pushed down to
the time that she got back up and resumed her cleaning was approximately five minutes.
Ms. Dinelle's Fourth Incident
Ms, Dinelle testified in her direct examination that the next incident occurred shortly
before Mr. Mailloux went on a five or six week course in May 1989. Ms. DineHe changed the time
to mid to late April, 1989. Ms, Oinelle reviewed the logs prior to the trial and, testified at the trial
that this event occurred on April 18, 1989.
In fixing the time of the incident, she said she had been involved in a fight with
another inmate Karen Carruzzi for two days, Ms. Dinelle1s cell had been trashed, sugar and
shampoo tossed onto her bedsheets and her glasses were broken. As a result, Ms. Dinelle asked to
move out of corridor #1, and was placed in a single cell in the medical area. After two or three
days, she was returned to A Area at her request, but was placed alone in corridor #3. The fourth
incident occurred on the first day that she was in corridor #3, while she was by herself. Ms.
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Dinelle testified that the incident occurred when Mr. Mailloux relieved correctional officer Ms.
Kuehl for lunch.
Mr. Mailloux did one turn around the corridor, taking approximately a minute, or a
minute and a half. He came back, closed the door between corridors #2 and #3, and the door
between #1 and #3, at the back of A area. Ms, DínelIe said she was sitting at the far table next to
the waIl, watching the "Young and the Restless" on the television, which was situated at the far
end up on the bars. Mr, Mailloux was at the, end of the bars by the television and called her over
three or four times, telling that he had something to tell her. Ms, Dinelle told him that whatever he
had to tell her, he could tell her from where he was. She thought he said that he was not going
until she came over. She did not see a way out, and so went over to the bars. He grabbed her by
the shoulders and held her in a hard grip. ,He had his penis on the bar and he was pushing her
down towards his penis, telling her to kiss it like before. She remembers him saying that no one
would hear anything, because both doors were closed. Again, she saw no option and took his
penis in her mouth for about twenty or thirty seconds, when, either he, or both of them, heard a
noise. She faked a slip by letting her foot go, while he loosened his slip, and went away to the
back where she was before so he could not grab her. He went to check on the noise and came
back. He told her to get back to the bars, and she refused. A minute or two later, Ms. Kuehl
banged loudly on the A door. A few minutes later Ms. Kuehl'did her rounds of the corridor.
From when she saw Mr. Mailloux by the bars, heard the noise and the incident was
over was roughly five or ten minutes.
Ms. Dinellels Fifth Incident
Ms. Dinelle alleged that the next incident occurred three to five days after Mr.
Mailloux returned from taking a course. She originally placed it at fo~r to five days after he
returned from his course. She was housed on corridor #1. She believed she was asked to clean in
the afternoon.
Although in her written statement, Ms, Dinelle said that Mr. Mailloux came to the
corridor to get her to clean, she testified to us that she was escorted to the area where she saw Mr.
Mailloux. She cleaned the lunch room and both locker rooms quickly. i\1r. Mailloux told her that
the stairs needed to be done again. She took a mop to the bottom of the stairs. Mr. Mailloux was
between the medical door and the bottom of the stairs, She turned around and saw him. He
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grabbed her by the shoulders and pushed her down to kiss his penis which was out. He was,
talking like a kid telling her to "kiss" it like before. He was masturbating at the same time. He
ejaculated into her mouth, put his penis back in his pants, zipped up his pants and helped her
upstairs to the lunch room. He helped her sweep and mop. She said there were a couple of guards
there who teased Mr. Mailloux for helping her.
The total cleaning time she estimates was forty to forty-five minutes and of which
five to nine minutes involved the pushing and fellatio.
Ms. Dinelle had no further incidents with Mr. Mailloux.
Pauline JacQue.!
Ms. Jacques was admitted to jail on February 18, 1990, on a remand warrant at the
age of 22. This was her second incarceration. She was charged with four counts, assault with a
weapon, two breaches of recognisance and theft under. She was sentenced to 45 days in jail for
,theft under and 15 days concurrently for assault. The recognìsance charges were dropped. She
was released from jail on May 6, 1990, on a pre-release as her sentence expired May 7, 1990. Ms.
Jacques was in the Sudbury Jail on this occasion from February 18, 1990 to May 7, 1990.
Ms. Jacques had a prior record. ,On December IS, 1987 she was given a
suspended sentence and probation for 18 months for break and enter, which she later breached.
On November 23, 1988, she had been convicted of theft under, fraud, uttering forged document
and received three years probation.
Ms. Jacques gave her statement to Constable Bain at her home in Sudbury on May
20, 1990. She did not make any complaints about Mr. Mailloux during her incarceration and gave
no reasons for not doing so. She testified at Mr. Mailloux's preliminary inquiry on November 29,
1990 and on February 28, 1991 and at his trial on October 8 and 9, 1991.
Just prior to Ms. Jacques' testimony on the 15th day of hearing, the Employer
advised us that Ms. Jacques had a new allegation, Although we were advise? by Union Counsel
that Ms. Jacques had testified earlier at Mr. Mailloux's trial that there were no new allegations, we
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allowed, with Mr. Thomson dissenting, introduction of evidence on the new allegation as it would
go to the feasibility of a continued employment relationship. We allowed the Union latítude to cal1
any further witnesses that it may require to combat the allegation.
Ms. Jacques' First Incident
Ms. Jacques testified that she first met Mr. Mailloux approximately one month after
she was incarcerated in 1990. She was sharing the cell with Ms. McNally at the time, She said
that as Mr. Mailloux was walking around the south side of the corridor, he called her over and told
her that he would give her some pills in exchange for fellatio. She said his pants were to his
knees. In her statement, she said that his penis was sticking through the bars. She said that he
took Tylenol #3s, which were in a small medicine cup, out of his pocket, and gave them to her.
He grabbed her breasts and squeezed them hard. Neither of them said anything, This took a few
seconds. She pulled away and sat down. She said that she said nothing to Ms. McNally, but gave
Ms. McNally two of the six pills she received from Mr. Mailloux. In cross-examination she later
denied telling us that she gave pills to Ms. McNally.
Ms. Jacquesr Second Incident "\
Although in Ms. Jacques! statement she described the next incident as occurring on
the following day, Ms. Jacques testified to us that the second incident occurred approximately one
week later. In her cross-examination she placed this event after her sentencing on March 29, 1990.
Ms. Jacques testified that she was on her way to the library. The other girls were
already in the library and she was alone on the stairs, about half way up the stairs. The doors at
both the top and the bottom of the stairs were open. Mr. Mailloux put his arms between her legs
and fondled her. She ran up the stairs. Nothing was said.
Ms. Jacques' Third Incident
Ms. Jacques testified that about a week later she was in corridor #3. Only Ms.
McNally was living on the corridor with her, but she was unsure whether Ms. McNally was there
at the time of the incident. Mr. Mailloux asked her to ask the Constable to go up to the "hole"
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(segregation) for the weekend. She made no commitment. Sometime after that day, Mr. Mailloux
gave her a telephone number to his second work place and asked her to call him. She made a call
to Mr. Mailloux from corridor #2 and told him to put six dollars in her account, meaning to give
her six pills. She said that he talked crassly to her, but she did not pay attention to what he said.
This detail was not given in relation to this incident in her statement. Mr. Mailloux was off for a
few days. When Mr, Mailloux returned to work, he then handed her seven pills, and then said that
she never asked to go to the hole, while he squeezed her breasts through the bars, He left when a
female guard came. Later in cross-examination she said that he grabbed her before he got the pills.
Ms, Jacques explained that she went close to Mr. Mailloux, as she was addicted to drugs and
wanted the pills.
'.'
Ms. Jacques' Fourth Incident
Ms. Jacques testified that the fourth incident occurred while she was on corridor
#3. Ms. Jacques could not remember if there was anyone else living in her area at the time. Mr...
Mailloux came the next morning, and had eight Tylenol #3s in a cup. Ms. Jacques said that
notwíthstanding the other encounters she went to the bars because she was addicted and wanted the
pills. Mr. Mailloux put them in her breast pocket, squeezed her breasts and then she sat down.
This was contrary to her statement in which she had told Constable Bain that Mr. Mailloux grabbed
her breasts through the bars and then put her hand on his penis which was erect but in his pants
and talked dirty to her. This lasted a few minutes, In her cross-examination she said that her
statement in this respect was false. After this incident she was changed to corridor #1.
After she was transferred to corridor #1, Mr. Mailloux did not bother her, but one
day he came and stared at her and two other inmates. Another inmate had told him to leave her
alone.
Ms. Jacques' Fifth Incident
Ms. Jacques testified that the fifth incident, the new allegation, happened while she
was on corridor #1, about a morith prior to her release. Ms. Tína Morin and 'Daniellet were with
her. She was folding laundry in the A Area staff bathroom room, Mr. Mailloux came in, hurt her,
and Ms. Morin yelled at Mr. Mailloux, in a loud unpleasant voice to leave Ms. Jacques alone. Ms.-
Jacques says that it was loud enough for both Mr. Mailloux and 'Paul', a guard, to hear. Ms.
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Jacques ran out to the A Area walkway. I n her cross-examination she added that at some time
around the time of the incident., Paul was sitting at his desk approximately twelve feet away. There
was no door. She could see him and he could see her.
Ms. Jacques had no further involvement with Mr. Mailloux.
Denise McNallv
Ms. McNally was an inmate at the jail from March 16, 1m to May 10, 19S1O. This
was her first instance in jail. She was admitted to the Sudbury jail on March 16, 1990, on a
remand warrant for uttering death threats, breach of recognisance and possession of narcotics. She
was sentenced on May 10, 1990, to one day injail for threatening and was released on the same
day. The charges of breach of recognisance and possession of narcotics were withdrawn, and she
was released on May 10, 1990. The balance oCher time in jail was applied to satisfy a Young
Offenders 'sentence. She had previously been convicted on June 23, 1989 with possession of a
narcotic and received a $100 fine, and on January 15, 1990, she was convicted of two counts of
theft under $2,000.00, for which she had received a 90 days open sentence and 90 days
concurrently and one year's probation.
Ms.McNally made only one allegation against Mr. Maìlloux. She alleged that Mr.
Mailloux sexually assaulted her in an afternoon Ín April 1990. She alleged that Janet Webb was
the officer assigned to A Area. She was waiting with Ms. Morin and Ms. Jacques to get into their
cells. She was standing, leaning on the radiator with her feet on the floor. Ms. Webb was with
them. They were waiting for a runner to let them in She alleged that Mr. Mailloux came beside
her, and rubbed his hand on the cheeks of her buttocks for a couple of minutes. She looked to Ms,
JaCques and Ms. Morin who were about a foot or two away talking, She stepped away and waited
for the runner. She further alleged that Mr. Mailloux was not the runner and should not have been
there. She told Ms. Jacques about the incident, when she was inside the range, but did nothing
until there were discussions with Patricia Bulloch..
Ms. McNally testified that she reported the incident to Ms. Bulloch in arts and crafts
a couple of weeks later. Ms. Bulloch had asked, without naming any correctional officer, if there
were any sexual advances made by any correctional officer. On May 10, 1990, as soon as she was
released, she walked across the street to the Elizabeth Fry Society and gave her statement to
Constable Bain as she did not feel Mr, Maìlloux IS actions were right, but had not felt safe saying
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so while in jail. She left Sudbury immediately after giving her statement and has not returned. She
,
I now lives in Alberta and only came to Ontario to give her testimony,
I
I Ms. McNally testified at Mr. Maìllouxts trial on October 10 and 11, 1991.
I
I
I Dennis Mailloux
I
I Mr. Mailloux has been a correctional officer since August 27, 1977 to 1990 without
I interruption until the date of his discharge. He has been a steward with the Union since 1977 and
continues to hold the position notwithstanding his dismissal and waS elected the Vice-President of
Local 617. He was the President of the Sudbury Area Council from 1988 to 1990 and the Secqnd
Vice-President of the Sudbury District Labour Council to 1989 and has been a director from 1988
to the date of his testimony He has taught various health and safety and WHIMS courses, and
courses on various aspects of arbitration and collective bargaining. He was the cochair of the
Occupational Health and Safety Committee from 1989 to 1990 and sat as the chaìr for the Union's
committee for slightly-longer. He was the chair of the National Day of Mourning sponsored by the
Canada Labour Congress. He also worked at the Firehall in Onaping, where he had begun as a
volunteer firefighter and had progressed to Captain and Fire Inspector during the last nine and a
half years.
Three character references were presented on behalf of Mr. Maìlloux, Ron Sullivan,
another correctional officer who had worked with Mr. Mailloux for the past 5 years and 8 months,
Donna Campbell, an active member of OPSEU, and Patrick Arthurs, Onaping Fíre Chief. Each,
one confirmed Mr. Mailloux's involvement with workers, his union and his activities in the
firehali. Mr. Arthurs confirmed that Mr. Mailloux was honest, hard working, never physically
aggressive, or verbally aggressive. Mr. Sullivan found that.he was always assisting workers in
their relationships with the union and the work place, was professional and was not known to have
acted in an unprofessional manner. Ms. Campbell confirmed his involvement in union activities,
and health and safety issues, and she always found that he was ethical and could be counted on.
She aJways felt safe with him and he sometimes escorted women to their rooms at their
convenience at conventions.
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Page 20
"
Mr. Mailloux denied all the allegations made by the complainants and took the
position that the complainants fabricated the stories. Mr. Mailloux testified that he had been made
aware of the Ascot decision by his counsel on the criminal matter, that may have prevented him
from being tried on the merits of the charges on the grounds of delay, but advised his counsel that
he did not want to rely on the decision or use the decision on its merits, as he wanted to prove his
innocence before the court and further prevent the Ministry taking rash reactions to terminate
employees. He testified at his preliminary and at his trial. I
Most of his testimony before us centred around the risks that he would be exposed
to if he were to do the actions alleged and his evidence was focussed on castìng doubts on the
complainants' evidence highlighting the risks involved.
To counter any suggestion that he was involved in the alleged assaults, Mr.
Mailloux brought forward his involvement in safety issues, One of the issues that he was pressing
for, was the safety of an officer working alone in inmate areas. From 1988 or 1989, he began to
press management to post a second officer in each area of the institution to protect the officer in
, case of a medical emergency or if there was an assault on the officer., He said his suggestion was
not received well by management. After Mr. Sizer was charged for assault by Wanda Stefan, he
put forward the position at the Joint Employer Employee Relations Committee that the institution
should only have female officers supervise female inmates, to prevent officers being falsely
accused, especially in light of the Ministry's policy to terminate officers if accused. The Employer
did not change its practice. Mr. Mailloux then said that he would try to minimize an officer's risk
if he saw that an officer was alone, For instance, if he was a runner and saw that an officer was
alone in A area, he would try to stay there, When he waS in A Area, he would leave the door to the
A area open 80 to 90% of the time.
Mr. Mailloux said that he never nudged, poked or sexually assaulted anyone. He
had no knowledge of any of the complainant's medical backgrounds.
Mr. Mailloux's Testimony on Ms. Dinelle1s Allegations
Mr. Mailloux testified that the inmate is escorted by the runner to the officer
supervising the cleaning, The only time an inmate is not escorted is during the cleaning itself. Mr.
Mailloux testified. that his normal procedure for cleaning the stairs is to prop the door open with the
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" . .
mop bucket. He would usually go into the lunch room while the inmate was cleaning and would
check on the inmate periodically. If he is not in the lunch room, he would be in visual or hearing
distance. Mr. Mailloux said that he would get inmates materials for cleaning or help put the
materials away, but would not help them clean. If he were to help an inmate clean as Ms. Dinelle
alleged, he said it would be noticed by the other officers, as he said they know he does not go out
of his way to please other inmates.
Mr. Mailloux claimed that running around the lunch room as suggested by Ms.
Dinelle could easily be detected, as could any noise or disruption in the stairwell. In the stairwell
persons could hear others in the lunch room and the locker room. The stairwell echoed and any
nDise could be heard in the medical room,
Mr. Mailloux pointed out that there was a high risk of detection in the stair area.
There was general access to the stairs. and the supplies were kept on the top landing. The stairway
was used for storing mattresses and extra equipment FDr a time, the Union IS Local also kept a
filing cabinet there. Furthermore, the door at the top of the stairs was a fire door and could nDt be
locked. The medical door which was located at the bottom of the stairwell was locked, and only
the medical officers had keys. Mr. Mailloux and the runners never had keys to that door.
Mr. Mailloux said that he had no further information about relieving Ms. Kuehl on
April 18, 1990 other than is shown on the logs. The lunch period was generally thirty to thirty-
five minutes. The officer in charge of the area is responsible for the log book and the relieving
officer is responsible for relief. He would nonnally sign in for a round after doing a round, but it
depended on what was happening, Mr. Mailloux said that after Mr. Sizer's incident, he would
lock all block doors except for A Area. Nonnally, the returning officer kicks the door to signal that
he or she has returned. Sound travels from the other areas, so that if the door between corridors
#2 and #3 , a person can still hear in corridor # 1.
Mr. Mailloux1s Testimony on Ms. Jacques' Allegations
Mr. Mailloux testified that he did not know Ms. 'Jacques' medical history. The only
way that he would be aware that Ms. Jacques was addicted to drugs was on her original
classification, but it was not something that he would usually retain since 75% to 90% of the
inmates choose to admit they are drug users on admission.
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Mr. Mailloux said that although inmates would trade anything, he was not aware of
Ms. Jacques or any inmate saying that she would exchange pills for sexual favours. He denied.
asking Ms. Jacques or any other inmate to go to segregation. However, he also stated that if an
inmate had misconducts, he may have told them to go to segregation.
Mr. Mailloux testified that he never gave Ms. Jacques any Tylenol #3s. The only
time he has received Tylenol #3 himself, was on May 23, 1990 the day of his arrest, as he had
been involved in a motorcycle accident that weekend and was in pain. He has had only one family
doctor and one dentist and neither have prescribed Tylenol #3. With one exceptìon, since he
moved to Dowling, 41 kilometres from work, in 1982, Mr. Mailloux said he always used his local
pharmacy in Dowling. The only time he did not, he used Azilda's Pharmacy, which is located
, approximately half way between Dowling and Sudbury. His doctor reviewed his records and
found only a prescriptìon for Tylenol #3 on two üCéasions, in 198.~rand for the accident. He
presented the Azilda Pharmacy record from September 26, 1986 to October 1990, which showed
that he was only given Tylenol #3 at the time of the accident. During the same period, the only
Tylenol #3 that his common law sPJuse Use Simon, received, was on September 25, 1986, well
before these alleged incidents. Mr. Mailloux said that although he does not have any children, he
child proofs his house to protect his brother's children when they visit. Because of his training in
health and safety, he disposes of his drugs on a regular basis.
Mr. Mailloux denied giving any telephone number to Jacques. He has had an
unlisted number since he moved to Dowling. His telephone number did not have a Sudbury
exchange, as alleged by Jacquès. He testified that he did not give her the Firehall's telephone
iiu~ber, where he was doing maintenance work in March and April.' The secretary or answering
machine would have answered the calls. It was his position that if Ms. Jacques had wanted a
telephone number, such as that of the Elizabeth Fry Society, he would not have written ít on a cup,
but would have written it on a request form,
Mr. lv1ailloux commented that if he had grabbed Ms. Jacques while she was folding
laundry, the other officer would have made a report. Similarly, if an inmate was shouting the
officer would investigate.
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Mr. Mailloux's Testimony on Ms. McNally's Allegations
With respect to Ms. McNally's allegation that he fondled her buttocks for about five
minutes in front of Ms. Webb and Ms. Jacques. He agreed it would be sexual assault, but said '.
that it would be unlikely that a person would not react. In any event Mr, Mailloux claimed that
there was no reason for Ms. Jacques and Ms. McNally not to report him.
Ar!!ument
As argument was lengthy and in the case of the Union, extensive written argument
was also given to the Board, we will only summarize the principles upon which the parties were
relying, without reference to the evidence that the parties relied upon. We have, however,
reviewed, and assessed the parties' full argument against the evidence given. After such
assessment, many of the arguments will be touched upon in our findings on the evidence.
Emplover Ar1!,ument
The Employer's representative argued that as this matter is an employment matter,
the Employer does not have to prove the incidents on the criminal standard of proof of "beyond a
reasonable doubt", The onus is on the Employer to prove its case on the þalance of probabilities.
The Employer does not need to prove all allegations to uphold the discharge, only one. On the
other hand, he submitted that to reinstate the grievor, the grievor must be exonerated of all charges,
The Employer's representative submitted that the complainants ought to be
believed, for why would three, unconnected inmates make these extremely serious charges against
the grievor. What would their motivation be for making these charges. Ms. Dinelle did not know
Ms. Jacques and Ms. McNally, and the incidents that she alleged, happened a year before those
involving Ms. Jacques and Ms, McNally. With respect to Ms. Jacques and Ms, McNally, their
only relationship was as cell mates, They had no continuing relationship after their incarceration,
Ms, McNally left to live in Alberta within a week of getting out of jail, Ms. Jacques lives in South
Porcupine, and Ms. Dinelle lives in North Bay,
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The Employer1s representative argued that none of the cOmplainants were suing the
Ministry and therefore there was no economic gain for them to testify. None of them had any
quarrel with the grievor or were trying to get back at him for past wrong doings. Ms. Dinelle and
Ms. McNally testified oIÙY that they did not want Mr. Mailloux to work with the public.
The Employerls representative acknowledged that the witnesses had ample time to
complain. they had access to visitors. to telephones which were not monÍtòred. and they could
have written ombudsmen1s letters. He suggested. however. that their failure to complain arose as
these inmates were novices to criminal behaviour, Tills was the first time that Ms. Dinelle and Ms.
McNally had been incarcerated and the second time for Ms. Jacques, Ms. Dinelle did not complain
as she was fearful that the guards 'would make her life more miserable. He submitted that she was
scared, ashamed and did not realize that she could complain. l\tIs. McNally did not complain as she
did not think it would be safe to tell anyone who works there.
Thc~' ~mployerls representative argued that there is ~() time limit restricting a
victim IS right to complain and an inmate should be in no lesser posÚion. He argued that not
reporting the incidents in a timely fashion does not mean that the incidents did not happen or were
trivial. Boords have recognized that a complainant may be embarrassed or afraid to bring forward
a complaint straight after the incident occurred, (Re Canadian National Railway Co. and
Canadian Brotherhood of Railway Transport & General Workers 1 L.A.C. (4th) 183
(Picher) at p. 199 and Re Government of Province of Alberta and Alberta Union of
Provincial Employees (Harding Grievance) 34 L.A.C. (3d) 204 (McFetridge) at p. 215.)
The Employer's representative argued that the detennination of the Board's decision
in this case must be based on findings of credibility of the witnesses, He relied on OPSEU
(Russell Thompson et al.) and The Crown in Right of Ontario (Ministry of
Correctional Services) GSB #128178 May 14. 1979 (Swan) at pages 14 and 15 which applied
the standard applied in Faryna v. Cborny [1952] 2 D,L.R. 354.
The Employees representative recognized that there were inconsistencies in the
evidence that the inmates gave, between the preliminary, the trial and the arbitration. However, he
argued they were unshaken on the core aspects of their allegations, that Ms. Dinelle was forced to
have oral sex, that Ms. Jacques traded sexual favours for drugs, and Ms. McNally's buttocks were I
fondled. Although there were deficiencies in their testimony, they merely testified to the best of I
their abilities. He argued that although parts of a witnesses evidence may not be credible, that does
not necessarily mean that all of their evidence "is not credible. He argued that as in OPSEU
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(Travers) and The Crown in Right of Ontario (Ministry of Correctional Services)
GSB #79/79; 213/79 (May 29, 1980)(Swinton), if a witness has overstated its case or added
something, it does not destroy the entire evidence of the witness. He argued that the employer's
witnesses were credible. The witnesses' testimony with their imperfections were true.
The Employer's representative argued that the records established the possibility of
the events occurring. The records suggest the time, place and opportunity. Even though he
acknowledged that the records were not perfect, they were an objective record of events. He
submitted that the victims did not have access to them and therefore could not fabricate stories to
match them.
On the other hand, the Employer's representative argued that the Mr. Mailloux's
lack of emotion and his demeanour undennines his credibility. He submitted that a peace officer of
many years experience who was falsely accused would have turned his mind to all the dealings and
situations he had with the accusers. His lack of knowledge of the events is not credible, The
Employer's representative submitted that one would have expected that a correctional officer of
many years experience, who has been arr~ted, put in jail, gone through a pretrial, preliminary and
trial, and who has been deprived of his livelihood would have expressed some outrage. Yet Mr.
Mailloux showed no emotion.
The Employer's representative submitted that the Ministry's mandate requires the
Employer to properly care for all inmates in its jurisdiction, not just the strong and healthy, but also
the weak, inarticulate and those who do not have good memories. The Employer's representative
argued that the carekeepers must be beyond reproach and the inmates must never be allowed to be
exploited by their caretakers. As in the Government of British Columbia and British
Columbia Government Employees Union (Correctional Services Component) 27
L.AC. (3d) 311 (Hope), the inmates in a correctional institution are vulnerable, The expectations
of omcers as seen in OPSEU(Erickson) that they be above reproach, remain the same today.
.H
The Employer's representative argued that it has proved that the Employer had just
cause to discharge the grievor. The Ernploýer's representative argued that the grievor has lied.
The evidence further suggests that there was premeditation on the part of the grievor, as Mr.
Mailloux had the ability to determine who should do the cleaning and where. To bring pills to Ms.
Jacques required further premeditation. The Employer's representative argued that mitigation is
not an issue. Once there is a finding against the grievor, that is sufficient to uphold a discharge.
Discharges were upheld in cases involving less, overt sexual acts (OPSEU (Baylis) and The
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Crown in Right of Ontario (Ministry of Correctional Services) ass #3100/90,
3101/90, O~S§U (Schaefer) and The Crown in Right of Ontario (Ministry of
Correctional Services) ass #1847/87, OPSEU (Leering) and The Crown in Right of
Ontario (Ministry of Natural Resources) ass # 1105/84, 1106/84 and 1401/84). The
Employer1s representative argued that in a case where the offence was much less serious, spanking
a probationer, the Board did reinstate the 'grievor where there were strong mitigating
circumstances. (OPSEU (Lindsay) and The Crown in Right of Ontario (Ministry of
Correctional Services) ass #284/82.
The Employer's representative urged the Board to find that the grievor had lied and
uphold the dismissal.
The Employer's representative argued that if the Board were to find that neither the
Employer's witnesses nor the grievor could be believed, then the discharge must be upheld as the
Board would not be able to conclude that the discharge was excessive.
,
I Union's Ar~ument
I .,
Union1s counsel argued that the deputy minister did not carry out an investigation
as required under s. 22(1) of the Public Service Act and therefore the grievor Ís entitled to
recover his monetary loss for the period of his wrongful suspension (OPSEU (Miller) and.The
Crown in Right of Ontario (Ministry of Correctional Services) GSB #2617/87
(Samuels). The Union is therefore seeking the grievor's salary and benefits for the period of his
suspensIOn,
Unionls counsel argued that this Board must make its determination on the
allegations that were set out at the outset. The Employerts representative had advised the Union
that it was relying on the allegations as set out by the complainants in their witness statements.
However, the Union did not know the dates that the Employer was relying on until its argument.
Union's counsel argued that the evidence must be tested against the elements of time and location.
The dates and times'of the alleged incident should have been given to the Union in advance of the,
hearing and with adequate notice in order that it could meet the case. He submitted that the failure
to do so resulted in the denial of natural justice. In any event, the dates that the Employer relied
upon, only show the possibility that the incidents could occur, not that they did occur.
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Union's counsel argued that the standard of proof that is to be_applied is "clear and
convincing proof based on cogent evidence", which is not as high as the criminal standard, but an
exacting standard that must be applied in the face of allegations that are criminal in nature. This
standard has been applied by ooth courts and arbitrators. The criminal proceedings do not preclude
this hearing, but Mr. Mailloux's acquittal demonstrates conclusively that there is a reasonable
doubt that the incidents occurred. '
Union's counsel agreed that an assessment of the credibility of the witnesses is
crucial to the detennination of this case. He argued that the guidelines in Faryna V. Chorny
(supra) be followed. The Union's counsel submitted that the test of credibility requires the
evidence of each inmate as a whole be examined, and be tested for reasonableness and the ability to
be corroborated, and not merely cut away to the heart of each inmate's evidence. He argued that
demeanour is only "one factor. Other elements to be considered are the abilìty to describe clearly
what the witness has seen or heard, to demonstrate powers of observation, memory and judgment.
Union's counsel argued that the character of the complainants and Mr. Mailloux
must be assessed as part of the determination of credibility. It is not merely how the witnesses
answer questions on a previous record, but it is the existence of the criminal record that is relevant
to the assessment of a witness' credibility, their ability to tell the truth and their honesty. The
nature of the complainants' convictions are a ret1ection of the nature of the complainants' character.
Unlike the complaiqants, Mr. Mailloux has not had a criminal record. The only charges against
him have been made by these inmates, and they resulted in his acquittal. Other evidence received
on Mr.1y1ailloux's character showed Mr. Mailloux to be a trusted and respected person.
..
Union's counsel argued that both Ms. Jacques and Ms. Dinelle have s<;:rious
perception problems. Ms. DineHe's evidence was unreliable. She melded the allegations against
Mr. Sizer and Mr. Mailloux. Drugs affected Ms. Jacques and her review of her evidence with the
police, polluted her evidence. Union's counsel argued that Ms. McNally's evidence was
unreliable. Her testimony conflicted with her statements made only ten days after the alleged
incident. Union1s counsel argued that after five years of investigation, preliminaries and trials the
complainants are not disinterested parties, but are interested in having their allegations found true,
The Employer's representative argued that we should accept the core of the,
allegations even though there were inconsistencies with prior statements and testimony. Union's
counsel argued however, that the purpose of being able to cross-examine on prior inconsistent
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statements is that it is more difficult to tell a truthful statement when the person is being asked
questions on the event in differentways.
In answer to the Employer's suggestion that the Board look into why the
complaints were made, the Union responded that the test of the evidence is not why. There is no
clear reason why Ms. Jacques made many assertions that were not based on fact.
Union's counsel argued, in response to the suggestion by Employer's
representative that it would be difficult for Ms. Dinelle to have made a complaint while she was in
jail, that Ms. Dinelle reported two incidents against Mr. Sizer while she was in jail. Reporting
those incidents was consistent with her character as seen in jail, whereby she complained about
many things, down to the most trivial. It was also consistent with her character as seen by her
criminal record. The character of a person who was convicted for assault causing bodily harm is
not consistent with a personality which would not fight back. Union's counsel argued that her _
claim that she was picked on by Mr. Mailloux because she was vulnerable and not likely to
complain, was entirely false.
Ms. Dudgeon had a history of making false allegations. Her allegations were made
in a timely fashion and they were able to be investigated and disregarded without Mr. Mailloux
being involved. He argued that if Mr. Mailloux had known of the allegations made by these
complainants at the time, then he would have had an opportunity to recall time, dates, locations and
would have been able to respond to the allegations.
DECISION
The grievor was discharged for sexually assaulting Ms. Dudgeon, Ms. Dinelle, Ms.
Jacques and Ms. McNally while they were inmates at the Sudbury jail. The foundation of the
discharge was criminal in nature. The grievor has been tried by the criminal courts and acquitted
and therefore the Crown was not able to show beyond a reasonable doubt that the grievor
committed the offences. His acquittal of itself however, does not mean that he has an automatic
right to reinstatement. The standard of proof in a labour arbitration proceeding is less stringent
than the standard of proof in a criminal proceeding. The purpose of review in this arbitration is to
determine if the allegations if found against him on the balance of probabiJities, are incompatible
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with a continuing employment relationship. The balance of probabilities however, is not an exact
measure.
In'Re Bernstein and College of Physicians and Surgeons 76, D.L.R.
(3d) 38, the Divisional Court examined the standard of proof that a disciplinary board ought to
have applied when detennining whether events of a criminal nature occurred, which would have
the effect of removing the doctor's licence. In doing so, it reviewed several decisions which
discussed what was meant by that standard in particular situations which have a penal undertone.
When considering what is meant by a balance of probabilities, the Court referred at pages 59, in
part, to the judgment of Laskin J.A, in Re Glass and Council of College of Physicians
and Surgeons, [1966] 2 O.R. 81 and quotes:
"... in every civil action before the tribunal can safely find the affirmative of an
issue of fact required to be proved it must be reasonably satisfied, and ",whether or
not it will be so satisfied must depend upon the totality of the circumstances on
which its judgment is fonned including the gravity of the circumstances of the
finding. II
A man's professional reputation, threatened by allegations of misconduct against
which he pledges his credit as a witnfYss, should be upheld unless there be very
strong evidence shattering his defence of that reputation: See R. v. Chapman
(1958) 121 C.C.C. 353 at 362,29 c.R. 168 at p. 177,26 W.W.R. 385; Re Robb
and Council of Central Surgeons of RC. (1964), 4Q D.L R. (2d) 202.
At p: 61 of the Berstein decision the Court concludes:
The important thing to remember is that in civil cases there is no precise formul~ as
to the standard of proof required to establish fact.
In all case, before reaching a conclusion of fact, the tribunal must be reasonably
satisfied that the fact occurred, and whether the tribunal is so satisfied will depend
on the totality of the fact or facts to be proved, the seriousness of an allegation
made, and the gravity of the consequences that will flow from a particular finding.
OPSEU (Leering) and Ministry of Natural Resources GSB #1105/84.
1106/84, 1401/84 (Verity) November I, 1985 reiterated that:
As a general rule, proof in a civil matter is a lesser test than the criminal standard of
proof beyond a reasonable standard of doubt. However, where serious personal
misconduct is alleged, arbitration boards require that the allegations be established
by clear and cogent evidence. Lord Justice Denning put the matter into proper
prospective in his frequently quoted judgement in Bater v, Bater [1950], 2 All E.R.
458 at 459 p. 459 as follows:
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"The difference of opinion which has been evoked about the standard of
proof in these cases may well turn out to be more a matter of words than
anything else. It is true that by our law there is a higher standard of proof in
criminal cases than in civil cases, but this is subject to the qualification that
there is no absolute standard in either case. In criminal cases the charge
must be proved beyond reasonable doubt, but there maybe degrees of proof
within that standard. Many great Judges have said that, in proportion as the
crime is enormous, so ought the proof to be clear, So also in civil cases.
The case may be proved bya preponderance of probability, but there may
be degrees of probability within that standard. The degree depends on the
subject-matter. A civil Court, when considering a charge of fraud will
naturally require a higher degree of probabìlíty than that which it would
require if considering whether negligence were established, It does not
adopt so high a degree as a criminal Court, even when ìt is considering a
charge of a criminal nature, but still it does require a degree of probability
that is commensurate with the occasion. II
The allegations of sexual assault are extremely serious allegations and one which
are criminal in nature. Therefore although there is no clear defined line as to what degree the
standard must be applied, due to the nature of the allegations, and the impact upon the griever's
reputation, there must be a high degree of probability that the events occurred. Although it does
not require proof beyond a reasonable doubt, there must be there must be clear and convincing
proof based on cogent evidence that the incidents occurred. This standard has been applied in civil
actions (Re Bernstein and College of Physicians and Surgeons of Ontario (1977) 15
O.R. (2d) 447 (Div. Ct. ) at page 470;, Re Juan de Fuca Hospital Society (Mount Tolmie)
and Hospital Employees Uniont Local 180 (1990) 16 L.A.C. (4th) 184 (McPhillips)
(B.C) at page 188, and Re Manitoba v. M.G.E.U. (Jackson) (1993) 32 L.A.C. (4th) 339
(Schulman» and by the Grievance Settlement in matters where the discharge is based upon
allegations of such se~ous misconduct, that are criminal in nature (OPSEU (Kanerva) v.
M.C.S. (1992) GST #1128/90, 1618/91 (Verity) and OPSEU (Chan) V. Ministry of
Health (1987) GSB #0918/86, 0911/86 (Brandt».
As the complainants made allegations which were expressly denied by Mr.
Maillou~, the Boardts assessment of the credibility of the witnesses is critical to making its
determination of the facts. The British Columbia Coun of Appeal in Faryna v. Chorny [1952]
2 D.L.R. 354 at 356-358 set out guidelines which are useful to the Board in assessing the_
testimony of the witnesses,.measuring their testimony agaìnst objective facts and the testimony of
other witnesses, The court states:
If a trial Judge's finding of credibility is to depend on solely on which person he
thinks made the better appearance of sincerity in the witness box, we are left with a
purely arbitrary finding and justice would then depend upon the best actors in the
witness box. On reflection it becomes almost axiomatic that the appearance of
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telling the truth is but one of the elements that enter into the credibility of the
evidence of a witness. Opportunities for knowledge, powers of observation;
judgment and memory, the ability to describe clearly what he has seen and heard, as
well as other factors, combine to produce which is called credibility, and cf.
Raymond v. Bosanquet (1919), SO, D.L.R. 560 at p. 566, 50 S.c.R. 452 at 460.
17 O. W.N. 295, A witness may in his matter create a very unfavourable
impression of his truthfulness upon-.the trial judge, and yet the surrounding
circumstances in the case may point decisively to the conclusion that he is actually
telling the truth. I am not referring to the comparatively infrequent cases in which a
witness is caught in a clumsy lie,
The credibility of interested witnesses, particularly in cases of conflict of evidence,
.;::annot be gauged solely by the test of whether the demeanour of the particular
'~witness carried conviction of the truth. The test must reasonably subject his story
to an examination of its consistency with the probabilities that surround the
currently existing conditions. In short, the real test of the truth of the story a
witness in such a case must be its hannony with the preponderance of probabilities
which a practical and iruormed person would readily recognize as reasonable in that
place in those conditions. Only thus can a Court satisfactorily appraise the
testimony of quick-minded. experienced and confident witnesses, and of those
shrewd persons adept in the half-lie and of long and successful experience in
combining skìlful exaggeration with the partial suppression of the truth, Again a
witness may testify what he sincerely believes to be true, but he may be quite
honestly mistaken. For a trial Judge to say 111 believe him because I judge him to be
telling the truth", is to come to a conclusion on consideration of only half the
problem. In truth it may easily be self-direction of a dangerous kind. -- "
.
The trial Judge ought to go further and say that evidence of the witness he believes
is in accordance with the preponderance of probabilities in the case and, if this view . .,
is to command confidence, also stated his reasons for that conclusion. The law
does not clothe the trial Judge with a divine insight into the hearts and minds of the
witnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of
credibility is based no on one element only to the exclusion of others, but is based
on all the elements by which it can be tested in a particular case.
Therefore as in Farnya (supra) the credibility of a witness is detennined not only
by demeanour but by a composite of factors called into play when measuring the witnesses
testimony against other facts when determining whether it is reasonably probable that the events
happened.
Although the credibility of each complainant must be be looked at individually,
there are several common elements to the statements made by the complainants and their ensuing
testimony that raises certain issues which can be addressed collectively and then applied
individually as we consider each complainant's evidence.
The first is the inability of the complainants to identify the time and date of the
alleged incidents. The first assumption that inmates, not being creatures of the date book or
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appointment book, cannot fix times or would lose track of time, must be dismissed. Jail is not a
timeless place. Although inmates were not allowed to have watches or time pieces, there were
many ways to determine the date and time. Officers in A Area had a calendar on the wall and a
clock above their desk. The complainants smoked cigarettes that had calendars on the packages,
they ordered newspapers from time to time, they watched television and listened to the radio at
anytime during the day. They had access to paper and therefore, could have identified the dates of
any alleged incident should they have chosen to do so. Correctional Officers were often asked for
the time.
All the complainants recognized the many elements in the jail's routine that were
fixed and created pinpoints against which incidents could be placed. On a daily basis there were
fixed times when the cells were opened and closed, when meals were had, when shifts and officers
changed. There was a regular routine for laundry each week, for ordering of candies, cigarettes.
Doctor's parade was Monday, Wednesday and Friday. V olunteers came in on Saturday for'
different se:vices. Writing paper was given out on Sundays.
One of the difficulties faced by the Employer in assessing the possibility of the
events occurring, and then by the Union in preparing its defence to the actions, was the lack of
specificity as to the dates of the alleged incidents.
Mr. Ryan was asked by Constable Allain to determine whether the allegations made
by the complainants were possible. To corroborate their possibility Mr. Ryan reviewed the
witness statements, log books, shift schedules and bed books to confirm or deny when the
incidents took place, where they took place and could they take place. Mr. Marcotte, the current
Deputy Superintendent of the jail also reviewed the log books and the bed books. The log books,
the duty rosters and the bed books, provide written evidence of movement within the institution
which is recorded in a timely fashion. They are useful not to establish that an event happened at a
particular time, but to de~rrnine, only that there could be a possibility of it occuning, or that there
could be no possibility of it occurring.
Log books also do not provide a complete picture of where officers were. No entry
in a log book is not conclusive of a person not being in the area. Officers are able to travel
throughout the facility and do not have to log their actions. There is only a requirement to log
matters relating to the operation of the facility and the handling of the inmates.
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The logs are not 100% accurate. There are inconsistent practices in recordirig
events and there is a degree of subjectivity that flows from the characterization of events and the
necessity to record them. However, it is a standing practice, and one which was followed to
record uncharacteristic behaviour, or unusual occurrences, so that other correctional officers that
may work the shift can be kept aware of tþe events and behaviour of the inmates. The correctional
officers followed this practice and it was seen during the course of the evidence thatupsets, even
minor in nature were recorded and noted.
The second aspect in common, is that all the inmates had ample opportunity to
report any incident to third parties, but did not do so. They were visited by chaplains, doctors,
volunteers from the Elizabeth Fry Society, and friends. They were able to meet doctors and
volunteers from the Elizabeth Fry Society privately. They all knew of the role of the ombudsman
and that the ombudsmen was accessible to inmates to allow them to make complaints without fear
of reprisal or cover up. They knew the procedure for using the ombudsman and that information
placed in an ombudsman envelope was not censored or seen by any prison official. A poster
explaining how to use the ombudsman was in posted in the area. The poster also provided a
telephone number to call in an urgent matter.
Finally, a normal assumption is that a person is able to recall events more accurately
the closer to the event. Yet in this case it appears, although inconsistently, that recollection of
events became clearer in many circumstances with time, as the complainants were able to review
the logs and records, and testify at the various proceedings.
As generalities are not conclusive as to events we must consider the testimony of
each complainant and assess each complainant's credibility. The evidence of the alleged acts must
be compared.and looked at within the context of each one's respective credibility and in the context
of the jail and its routine.
Ms. Dinelle
We did not find that Ms. Dinelle was a credible witness, after viewing her evidence
in the context of several areas that troubled us in general, and after considering her testimony on
each specific incident. Ms. Oinelle's evidence is viewed in the context of the Employer witnesses
testifying on the possibility of the events happening as flowing from the logs and records which.
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were kept. and against the testimony of other witnesses, Ms. Dinelle's evidence raised many'
questions for which there were no reasonable or rational explanations, or no explanation at all.
In the more general context. we ask why Ms. Dinelle would continue to subject
herself to abuse, why did she not report the incidents while she was in jail, why did she wait
approximately nine months to report the incidents after she left the jail, and not report the incidents
as soon as she was released.
Ms. Dinelle made allegations of five incidents of which four allegedly occurred
when she was out cleaning with Mr. Mailloux. We ask why would she go out with Mr. Mailloux
after the first incident Even accepting her testimony that she did not believe it would happen agaín
because she had told Mr. Mailloux about her father, why would" she continue to expose herself to
this abuse after the second time. If it has happened once or twice there would be a reasonable
expectation that it would happen again; given the opportunity.
c- 00
There was no obligation upon Ms. Dinelle to clean. Cleaning was a privilege and
was not required of any inmate in her circumstance. She admitted she had the opportunity to turn
down any opportunity without fear of reprisal. Ms. Oinelle testified that she understood inmates
only had to do cleaning after the inmate was sentenced. Therefore she did not have to clean until
she was sentenced in August 1989.
I Ms. Dinelle also admitted that every time that she was asked to clean, she was able
to ask who had asked for her. Therefore, Ms. Dinelle could have turned down any cleaning
assignment once she knew that Mr. Mailloux would be supervising her. Yet she neither asked
who was going to supervise her nor did she turn down any cleaning assignments.
Ms. Dinelle said she would not refuse because she believed that if she did that she
would not be asked to go out to clean again. Ms. Dinelle said that she had an argument with an
inmate on May 2, 1989 over the right to clean, and did not w'ant to lose this privilege. First, the
incident of May 2, 1989 came after Ms. Dinelle had alleged several of the assaults had happened,
and therefore she had not tested or learned that she would lose the privilege if she declined cleanìng
on any oçcasion. Secondly, from Ms. Dinelle's viewpoint, she could see that if she wanted to
clean, she was given the opportunity to do so. The incident on May 2, 1989 adds nothing contrary
to this view, In light of the numerous times Ms. Dinelle was out of the corridor cleaning,
sometimes as many as four or five times a day, we cannot accept the fear of losing the right to
clean as reasonable or acceptable expectation on her part.
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We accept Ms. Dinelle's testimony that cleaning provided her an opportunity to get
away [rom the tensions of her cell, and allowed her to do something she enjoyed, but to do so
when she knowingly was likely to be subjected to abuse when called out to cleanby Mr. Mailloux
'attacks the strength of her testimony, unless there is a reasonable explanation.
One must ask why Ms. Dinelle would not complain to someone at the time of the
incidents, Her response was that she was new to the jail system and was afraid that if she were to
report the incidents, the officers would make her life in jail difficult. This however, was not the
first time Ms. Dinelle had been in jail as suggested by the Employerts representative. She had also
spent two weeks in the Sudbury Jail in 1988, and therefore had to have had some knowledge about
the system. In any event, although there was no evidence that Ms. Dinelle had seen others who
had made allegations against staff and had been affected negatively, it is understandable that there
may be a hesitation to make complaints of such serious import while she was in jail.
,However, Ms. Dinelle was not a submissive character. As seen from her
convictions and her behaviour in jail, she was not afraid to assert herself. On AprilA, 1989 she
saw a psychiatrist about her anger, when she thought that she was going to rut an elderly inmate
living in the same corridor. When Ms. Dinelle did not like what was happening to her she
complained or made requests that the situation be remedied. She requested low fat meals instead of
the usual jail fare. She made numerous complaints and complained about items as minor, as the
barber refusing to cut her hair, which was ironically on AprilS, 1989, the day of the first alleged
assault, a matter of more serious consequence. She complained about staffs treatment of herself
and said she used the ombudsmen's envelope on one occasion to complain about a staff member
who did not give her Tylenol for a headache. Although Mr. Ryan testified that of the
complainants. only Ms. Dudgeon used the ombudsmen's envelope, it was clear from the evidence
that Ms. DineUe knew that she could make a complaint to the ombudsman without censorship and
fear of reprisa1. We cannot accept her evidence that she did not know that she could use the
ombudsman to complain atxmt an incident of sexual abuse.
Ms. Dinelle had many opportunities to discuss her allegations. Mr. Southern, the
Health Care Coordinator at the jail from November 1991, relying onjaiI records, testified that Ms.
Dinelle was physically sick and saw the medical staff a lot more than the nonnal inmate population.
Ms. Dinelle saw medical personnel approximately 700 times, including over 400 occasions when
she received medication in the course of her six month stay in the jail. Notwithstanding all these
contacts, Ms. Dinelle never spoke to anyone about the alleged assaults.
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Ms. Dinelle met with numerous professionals for counselling for anger, for the
resolution of her feelings towards her father and her allegations of sexual abuse by him. She asked
to see a psychiatrist in April 12, 1989. She saw Dr. McFarthering two or three times, told him
about her father's abuse and yet made no mention of Mr. Mailloux. She saw the psychiatrist on
April 14, 1989 and mentioned that she was having sleeping problems and discussed the allegations
against her father, but never spoke to him about Mr. Mailloux. She saw Dr. Doyle after her bail
hearing in 1988 and continued to see him in 1989 through to March 1990 at an incest survivor
group. Although the focus of many of the meetings were sexual assaults and their effects, Ms.
Dinelle never mentioned any assault by Mr. Mailloux. These meetings were private, and offered
no threat to her existence in the jail.
On April II, 1989, Ms. Dinelle asked to see Fred McGregor, a counsellor from
The Family Life Centre in North Bay. He had counselled her a number of times on the incidents
with her father. She said that he was willing to come from North Bay to see her and he did so on
one occasion. Although she testified that by this time she had been sexually assaulted at least twice
by Mr. Mailloux and two to three times by Mr, Sizer and she trusted Fred McGregor, she did not
tell him she was sexually assaulted by Mr. Mailloux.
Ms. Dinelle said nothing to a Danielle Brosseau, a registered nurse, on April 18,
1989 when she was counselled by her. On June 20, 1989 she saw a chaplain, but cannot
remember what she told him.
She also wrote to Diane Fuller, the Crown attorney in Sudbury, while she was in
jail, but did not mention Mr. Mailloux, even though Ms. Fuller asked her to contact her after she
was released from jaiL
Ms. Dinelle submitted thirty written requests to see volunteers from the Elizabeth
Fry Society and admitted that she had developed a trusting relationship with Ms. Bulloch and
Nancy'. She met with them privately. At no time however did she mention any misconduct by
Mr, MaiHoux.
Ms. Dinelle had the opportunity to discuss her allegations with anyone outside the
jail privately by telephone. Telephone use was not restricted and was available to the inmates.
Inmates did not have the use of a telephone directory or information, but they could make any local
call. Ms, DineHe admitted that she had access to a 'phone when she was on corridor #1 and did use
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the telephone after she was out cleaning. For instance on May 15, 1989, she used the phone for,
about two hours, and on May 26, 1989 she used the phone on corridor #1 about a half hour after
cleaning. Although there was no phone on corridor #3, she still was given access to a phone. For
instance on May 20, 1989 when she was on corridor #3, she phoned about four hours after
cleaning. On June 4, 1989 she was out cleaning twice and then she was out using a phone twice,
once while marked in #2 conidor.
These opportunities are important in several respects. First, Ms, Dinelle was able
to discuss matters of an intimate nature with professionals she trusted, and she could do so in a
i private setting. Secondly, she was not submissive and made complaints of even a minuscule
nature. When the Board looks at Ms. Dinelle's course of conduct in jail, she had numerous
requests to see officers, chaplains, social workers, lawyers. She was well versed in contacting the
outside and making complaints. Thirdly, the topics of many of the meetings were related to attacks
upon her sexually, and yet she did not mention the alleged ongoing attacks. When this is also
placed in the context that Ms. Dinelle testified that she telephoned a former inmate while she, was in
jail, after she alleged that Mr. Sizer made sexual overtures to her, and yet she did not contact
anyone after Mr. Mailloux is alleged to have made any of the sexual assaults against her, it
weakens the credibility of her testimony. There was no rational explanation why Ms. Dinelle
would discuss allegations of sexual assault by Mr. Sizer, and not those by Mr. Mailloux.
It would be reasonable to believe that a person new to the penal system may be
afraid of officers and the possibility of greater problems if the person did not accede to their
demands. However, if we were to accept Ms. Dinelle's position that she believed the officers
would make life in jail difficult for her if she raised the issue while in jail, we must then ask why
did she not report it when she left the jail. Why did she wait until approximately nine months after
her release to make a complaint. Her position was that she had heard that another inmate had been
assaulted and she did not want Mr. Mailloux to get away with his actions. At that point she laid
complaints about both Mr. Mailloux and Mr. Sizer. It was then ironiC that there were similarities in
the complaints and times of the occurrences. , It raises a doubtin our minds that if the incidents had
happened in the way Ms. Dinelle said they had happened, the similarity between them would have
left a stronger impression in her mind than was conveyed to us.
We are also concerned that the statements gave only the vaguest time reference for
the events, which were then substantially more precise at this hearing. Similarly, the description of
the incidents were more detailed than at the time of the statements. Ms. Dinelle did not refer to
specific dates and times that the incidents took place in her statements to Constable Bain and
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Constable Allain. Constable Bain visited her a second time specifically to place the incidents more
specifically and found she was not able to. She had no notes of the incidents, Yet five years later
she was been able to recall the dates and even the times events had occurred. It would be_expected
that Ms. Dinelle's recollection would have been clearer and more precise, the closerit was to the
alleged incidents.
Ms. Dinelle also had the ability to detennine the dates at the times of the alleged
incidents, A month or so after Ms. Dinelle began her incarceration the Elizabeth Fry Society
provided a calendar that was kept next to the table in corridor #1. Ms. Dii1èlIe smoked a brand of
cigarettes that had a calendar on it. Ms. Dinelle knew her court dates. She ordered the Sudbury
Star for four times and read other peopleJs newspapers. She listened to the radio which was on
from 0700 hours to 2300 hours and watched television.
When we reviewed Ms. Dinelle's testimony on the individual incidents, we found
that it was fraught with inconsistencies. She remained clear that she was assaulted on five
occasions, but when her testimony was examined more closely we found it difficult to follow the
, course of events as and 'when she suggested,
In Ms. Dinelle's statement, she said the first incident occurred in early April. She
also said that it was about a week after she first started cleaning. There was no mention of the time
of day that the incidents occurred. At the preliminary inquiry, she could not recall the time of day it
occurred, at the trial after she had reviewed the logs, which showed that she was'out cleaning on
April 5, 1989 at 1550 she ,testified that it occurred about three p.m. In her cross-examination, she
refined the date to the fourth or fifth of April. Before us, she reasserted that the time was between
2:00 p.m. and 3:00 p.m. which did not match the logs which showed that she was cleaning at
1550 hours and again at 1800 hours.
When looking at the log oooks, the firSt time that Ms. Dinelle was out of the
conidor cleaning was on March 18, 1989. That day should have been significant in her mind as
this was the same day she had asserted she had been assaulted by Mr. Sizer, There was never any
connection made by Ms. Dinelle between the timing of the two alleged assaults. The following day
she was out cleaning in the medical area while Mr. Mailloux was working, as the spare officer in
the yard. From March 20, 1989to April 5, 1989, Mr. Mailloux was either on his regular days off
or was sick with the exception of March 27 and March 28, 1989, On both those days Ms. Dinelle
cleaned twice. On March 27, 1989, Mr. Mailloux was an I Area officer and then a G Area officer
when she was cleaning outside the A Area. On March 28, 1989, Mr. Mailloux was an r area
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officer when she was cleaning the first time. The logs are unclear as to what assignment he had
whíle she was cleaning the second time.
Although an I officer and a G officer may be called upon to supervise cleaning, the
,Employer's representative asserted that April 5, 1989 was the correct date and the first day since
March 25, 1989 that this inmate was out of the corridor cleaning alone and Mr. Mailloux was in a
position to supervise her cleaning, At the time that Ms. DineUe was out cleaning, Mr. Mailloux
was a spare officer and therefore could have had the opportunity to supervise her. However, there
were also two other spare officers at the time who could have supervised Ms. Dinelle and there is
no record of who had supervised her. Therefore the logs raise ,a-possibility that Mr. Mailloux
could have supervised her at that time, but does not rule out the possibility that others may have
undertaken this assignment.
In Ms, Dinelle's statement to Constables Bain and Allain, she said that Mr.
Mailloux tried to kiss her, she told him to stop, she told him that her father had assaulted her and
he finally left her alone. Her statement was then embellished by Constable Baìn's synopsis in
which he had added in the type written copy, that Mr. Mailloux was grabbing her and kissing her
and was grabbing her allover her body. Ms. Dinelle1s testimony before us added more details that
he grabbed her breasts from behind, he held her by her shoulders, turned her around and was
forcing himself on her, kissing her and spoke to her in a strong tone of voice.
We find it unusual that notwithstanding her desire to clean and a reticence not to
displease the officers, that notwithstanding her allegations that Me. Mailloux had been forcing
himself on her that this incident did not prevent her going out cleaning again two hours later.
In Ms. Dinelle's statement she said that Mr. Mailloux asked her to clean the lunch
room about a week after the first incident. At the hearing before us, Ms. Dinelle claimed that the
first incident was followed by two incidents on the same day. Aprilll, 1989 was the next day that
the logs showed that Ms. Dinelle was out cleaning twice, before and after supper, and Mr.
Mailloux had the opportunity to supervise her, as an I Officer. It would be expected that if two
incidents had occurred on the same day, that this fact would have had some import to Ms. DineIle
at the time, and that she would have advised the police officers of that fact in her statement or after
she had time to think further of its timing. Although Constable Bain had tried to have her identify
facts that would specify the time, she was unable to clarify the time frame when she gave her
statement, although she was giving her statement closer to the time of the incidents. Having two
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incidents in one day ought to have made her cautious about going with Mr, Mailloux without the'
company of others.
In Ms. Dìnelle's statement, she said that she was asked to clean the lunch room. As
she was going to clean the stairs he tried to force her to have oral sex. He was fondling her, as she
was cleaning the stairs. At the preliminary inquiry, she said that before supper in the lunch room,
Mr. Mailloux grabbed her breasts from behind, she finished cleaning and ran out of the lunch
room. She said that when she was in the stairwell, Mr. Mailloux had his penis out and asked .her
! to kiss it, but she ran away to where the guards were. Then in her cross-examination at the
preliminary inquiry she added another incident, that she had oral sex in the stairwell after supper.
At trial, she maintained that there were two incidents, one in which she got away and the second in
which she was forced to have oral sex.
In Ms. Dinelle's direct examination before us, Ms. Dinelle said that when she was
getting cleaning supplies from under the sink in the lunch room, Mr. Mailloux grabbed herfrom
behind and was grabbing her breasts. She kept cleaning as she ran around a table and kept
dodging him. She was returned to the corridor and later returned to clean the locker room and the
stairs near the medical area. He pushed her down and she had his penis in her mouth for a few
seconds and squirmed away. She then wiped the stairs as she ran up to the lunch room where
there were two or three guards. She then finished cleaning the lunch room after the shift change at "
7:00 p.m. In her cross-examination before us, it was pointed out to Ms. Dinelle, that in her direct
examination at the preliminary inquiry,she testified to an incident in the lunch room before supper,
and an incident in the stairwell after supper. There was no mention of fellatio in the lunch room
nor on the stairwell. In her cross·examination at the preliminary she added the allegation of fellatio
in the stairwell after supper. She testified to us that she was chased around the lunch room, then
after supper she was forced to have oral sex on the stairs behind the medical area on the ground
floor, she got away and cleaned while running up the stairs, cleaning as she wenL She said that
there were not three incidents but two.
Ms. Dinelle said that Mr. Mailloux grabbed her and she slipped away. Ms. Dinelle
then added details in our hearing that had not appeared in any of her statements or in her prior
testimony. This was the first time that she said that Mr. Mailloux chased her around the kitchen
table and the first time that Mr. Mailloux said !loh e'mon.lt The details that Ms, Dinelle add created
inconsistencies, some of which are mentioned above.
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Her testimony to us raises more questions. How could she continue to clean,
while, and after being assaulted. If she had been assaulted earlier in the day, why would she gò
out cleaning with Mr, Mailloux later in the day. On April 11, 1989 she went out cleaning a total of
five times, Frankly. we cannot accept that Ms. DineBe could believe that that she would be denied
cleaning for refusing to go once, when she accepted cleaning assignments so many other times.
This area was also a high risk area to do anything inappropriate. The spare officers
used the lunch rOQm when they were not assigned to a particular area, in Ms. DinelIe's language it
was "their hang out place". There was nothing to stop them from coming upon Mr. Mailloux and
Ms. Dinelle. The hallway echoed. Ms. Dinelle testified that with the door closed, she could hear
"
girls giggling in the medical area, so she would have been heard had she shouted. As Ms. DinelIe
also testified that she could hear noises in the lunch room from outside the lunch room, it leads us
-,'
to conclude that if Mr. Mailloux was chasing Ms. Dinelle around the kitchen table, it would more
than likely have been overheard. For these incidents to have occurred. Mr. Mailloux would have
. had to have taken a calculated risk that Ms. Dinelle would not offer any resistance and would not
have made any commotion. M:s. Dinelle also added that Mr. Mailloux helped her clean and sweep,
and the other guards could not believe it. This was contrary to her earlier testimony in which she
said she could not remember if she cleaned the lunch room.
In her statement on the third incident, Ms. Dinelle was assaulted on the stairs but
makes not mention that she was forced to have oral sex with Mr. Mailloux. Ms. Dinelle also
testified to us that Mr. Mailloux hurt her shoulder, and yet notwithstanding her proch vity to use
medical services. there is no request for medical attention on this day.
With respect to the allegation of the fourth incident, Ms. Dinelle believed that the
incident occurred in May just before Mr. Mailloux left on leave for five to six weeks. She
pinpointed the time of the month, from when she was in segregation in corridor #3, after hiwing a
dispute with with another inmate.
There is a significant difference between her statement and her testimony on the
timing of the incident. Although Mr. Mailloux took his leave of absence on May 8, 1989 his last
day of work was April 29, 1989 and he returned to work on July 4. 1989. Therefore it could not
have happened in Mayas Ms. Dinelle alleged.
Ms. Dinelle changed the date at trial to April 18, 1989. ' In her direct testimony
before us. she thought it occurred a short time before Mr. Mailloux 'Yent on his five week course.
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In our view it was necessary to do so to correspond wíth the events recorded in the logs. Ms.
Dinelle had had a fight with another inmate on April 14, 1989 and shampoo and sugar was tossed
all over her pillow. Two hours later her glasses were broken. She was transferred to segregation
in the medical unit on April 17, 1989 and was returned to corridor #3 on April 18, 1989. April 18,
1989 was the only day that Mr. Mailloux was working while Ms. Dinelle was on corridor #3.
In Ms. Dinelle's original statement there was no time given for the incident and yet
she told us ~hat it happened when Mr, MaiHoux relieved another correctional officer, Tammy Kuehl
for lunch. The logs indicated that on April 18, 1989, Mr. Mailloux relieved Ms. Kuehl and made
his rounds at 1210 p.m. Ms. Kuehl served lunch at 1222 p.m. Ms. Dinelle went to the
optometrist at 1310, She continued on in her usual routine and went out to clean. By pinpointing
April 18, 1989 and the time of day, Ms. Dinelle was now able to make her testimony consistent
with the logs.
In her statement Ms. DinelIe said that while she'was watching television, Mr.-
Mailloux called her to the bars, grabbed her, unzipped hi.s fly and forced her to have oral sex.
After thirty seconds he heard a noise and let her go, and she moved away from the bars. Ms.
Dinelle added details in her testimony to us that were not reflected in the original statement. She
testified to us that she was watching the ry oung and the Restless', when Mr. Mailloux closed the
doors between #2 and #3 corridor and #1 and #3 corridors. Mr. Mailloux called her over to the
bars three to four times, not once as she originally stated. She added that Mr. Mailloux went to
check the noise and came back to the bars and called her over. She did not go. A minute or two
later there was banging on the door and Ms. KueW came in to do her rounds.
There was time for the incident to have happened, as the logs reflect that at most
Kuehl was away for 43 minutes, It may have been shorter as she usually takes a thirty minute
lunch and she records her actions after doing them. Her last entry was at 1139 and she recorded
serving lunch at 1222. As there were male inmates in #2 corridor, the door between corridors #2
and #3 would be locked. Also the block door to the rest of the institution was locked, and entry
, was usually signalled by kicking the door. On the one hand, the closed doors would have
provided privacy for Mr. Mailloux to act as alleged; however on the other hand, the log also shows
Ms, Kuehl locking the doors, so Mr. Mailloux would not have had to lock the doors between the
corridors as Ms. Dinelle alleged.
We have further difficulty with Ms. Dinelle's evidence on this incident. She agreed
that she knew that Mr. Mailloux was the relieving officer and as such he did not have keys to get
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into the living area She would not have had to go over to him. Secondly, she had testified by trus
time that Mr. Mailloux had poked her in the ribs on a few occasions and had caused her pain, and
had assaulted her previously. So we must question why would she leave the safety of her hving
area in the range to put herself in a position that she could be poked in the ribs, or grabbed and
forced to have oral sex. In order for Mr. Mailloux to have grabbed her, she would have had to
have come right up to the bars, Why would she have done so, when she could have talked to him
just outside his reach, had she wished.
Mr. Mailloux's physical size suggests that it would not be easy for him to grab Ms.
Dinelle as she alleged, The grievor is 6 foot three inches and weighed approximately 310 Ibs. in
1990. He is slightly larger now at 330 lbs. His arm is approximately eighteen inches in
circumference, and in 1990, when he was lifting weights the circumference of his arm was
between eighteen and three quarter inches to eight and five eighths of an inch. The space between
the bars was 33/8 inches to 3 1/2 inches. The grievor's ability to put his arm through the bars was
restricted to a few inches below the elbow. Although Mr. Mailloux could force his ann through
the bars with discomfort, we find it difficult to belíeve that he could grab her and hold her there
very easily, and certainly not without her consent
Ms. Dinelle never mentioned the incident to Ms. Kuehl when she returned, and Ms.
DineIle continued on her usual routine cleaning after she was out on TAP to see the optometrist.
We heard testimony from Ms. Kuehl. She had no specific recollection of the day and testified
what she behev,ed happened from the log books. In this instance there was nothing in the log
indicating that Ms. Dinelle was upset when Ms. Kuehl returned. Ms. Kuehl did not record any
'-
upset and would do so to alert other officers so that they would be aware of the inmate's state of
mind. Consistent with her testimony were other entries in the logs, such as Ms. Kuehl recording
that Ms. Dinelle was upset when she did not get scotch tape.
Ms. Dinelle told us that she would have remembered if she had seen the optometrist
and been assaulted on the same day. but also she told us that she could not remember going to the
optometrist an hour after the incident. ,She adds for the first time that she had broken her glasses.
We question why when being asked by Constable Bain to provide details that would help them
pinpoint the time that she did not mention this. Ms. Dinelle wears glasses in the normal course.
To lose the ability to see well is a significant occurrence which would have establi~hed a time frame
for the incident. To have glasses and to be watching television without them are events that we
would have thought Ms. Dinelle would have remembered in placing the date of the incident
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onginaUy. To add the program that she was watching is only a reflection of the time that Ms. ,
Dinelle said that it had happened.
In summary, although we find that there was the opportunity [or the incident to
have occurred had this been the right date, the new additional details given to the story eroded its
credi bili ty .
With respect to the fifth incident, Ms. DineUe's statement said it took place in June
1989, four or five days after Mr. Mailloux returned from the course. Mr. Mailloux carne to the
corridor to escort her to clean.
Again the alleged timing of the incident is significant. The day Mr. Mailloux
returned to work was JuIyA, 1989. Employer's representative said that up until July 12, 1989 the
only days that Mr. Mailloux had the opportunity to supervise Ms. Dinelle cleaning were July 4, 5,
6, 1989. In this case, the log books covering this time period are of no assistance as they have
been lost and there is no record that would indicate if Ms. DinelIe went cleaning during tills period
in which she was ill. The day Mr. Mailloux returned to work was the same day that Ms. Dinelle
was taken to,hospital by ambulance with severe epigastric pain. Her AIS chart shows that she was .
returned on July 5, 1989. Ms. DineIle then had diarrhoea on July 7, 1989 and her AIS card shows
a medical absence on that day. Ms. Dinelle recalled the hospital incident. She was obviously very
ill, but nevertheless she did not link the hospital incident or the ambulance ride or the diarrhoea
with the timing of the sexual assault. . ,
Before us, Ms. Dinelle testified that she was back in corridor #1, and one afternoon
was escorted to clean by a female officer with dark hair. In our hearing, Ms. DineIJe, also testified
she ~as not escorted. She cleaned the lunch room and the locker room before being aSked to clean
the stairs. When she was at the bottom of the stairs he forced her to have oral sex. Ms. Dinelle's
statement said she was taken downstairs behind the medical area and was forced to have oral sex,
Mr. Mailloux helped her with her cleaning.
Again Ms. Dinelle has added details which were not in her first statement. Ms.
Dinelle testified that she was taken from the range to clean by Mr. Mailloux, was escorted by a
female guard and was not escorted. Assuming the incident happened, only one of these scenarios
could be right. There was no reference in her statement that she cleaned the lunch room and the
lunch room first. These are new details. At trial, Ms. Dinelle said that the guards teased Mr.
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Mailloux after the first incident, while now, Ms. Dinelle said she saw the guards tease Mr.
Mailloux for helping him clean after this incident.
When we look at Ms. Dinelle's testimonyin its entirety, and consider the possibility
of the events occurring, we can accept that Ms. Dinelle would not necessarily remember each date
that the events occurred on, although she had the ability to record them as they were happening.
However, we would expect that given some of the concrete times that she could remember, the
fight with an inmate, her glasses being broken, her visit to the optometrist, her hospital visits for
upper abdominal pains and her visit for lower abdominal pains, would have assisted her in placing
the events. She did remember these events. Similarly, if she were being assaulted by Mr. Sizer
and Mr. Mailloux in one day, or had been assaulted by Mr. Mailloux twice in a day, we would
expect that the intensity of the events would have impressed themselves upon Ms. Dinelle.
" In our view, her story was given a context, after she had been in the position to
review the logs and had gone through the possibilities with Mr. Ryan. The only reasonable
rationale for her new precision is that with her review of the log books with Mr. Ryan, she is now
concluding when the events occurred on the basis of the only probable times that they could have
occurred.
Similarly, Ms. Dinelle admitted that her statements, as being made closer to the
events were more accurate than testimony she would have given some years later. However,
although we could accept that the statements may not reflect all the details, we find that they were
instead a skeleton of events which 'were later embellished during the various proceedings and
before us. When cross-examined as to prior inconsistent statements, sometimes Ms. Dinelle
would admit they were wrong and would have no explanation for their discrepancies. When the
details that she added are examined, they, for the most part, detract from validity of her allegations,
Ms. Dinelle's rationale for Mr. Maílloux's behaviour was that Mr. Mailloux had
knowledge of her medical history. Although Ms. Dinelle believed that the officers l1ad no
knowledge of her medical file, Mr. Mailloux stated he had no knowledge of their medical history
and did not know that Ms. Dinelle was an incest survivor until his preliminary inquiry. We accept
the grievor's testimony that he had no such knowledge, as the medical files are filed separately and
are locked in the medical office cabinet. The doctor's office is also locked when there is no
medical staff there. The only opportunity for an officer to have custody of a medical file would be
if an inmate were transferred, in which case the medical file was sealed and if it were opened, the
broken seal would have to be explained.
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"
In considering the likelihood of the incidents taking place, we considered the risk
the grievor would have been putting himself to. We accept the grievorJs view that to assault Ms,
Dinelle in the lunch room or on the stairs would place him in the highest risk of being discovered.
Officers, maintenance personnel, and other staff use the lunch room at any given time. They use
the lunch room for lunch, for waiting for something to do, smoking. The spare officers would
often be found there. As well, TAP, classification officers, the librarian, medical staff, visitors
such as outside contractors, volunteers from the Elizabeth Fry Society walk through the building at
any given time. The muster room was located directly across from the lunch room and
approximately three to four feet from the stairwell. There was usually someone there between 7:00
a.m. to 11 p.m. It was used as the smoking room, for overflows from lunch, to write reports, and
was used by a temporary officer and by the teacher. Chasing Ms. Dinelle around as she claimed
would likely have been discovered. It would have created some noise which would be heard on
the top floor and would have been investigated.
The stairwell near the medical area was a relatively low risk area in tenus of the
numbers of people who would access the area. Although there are two stairwells, the stairwell
where Ms. Dinelle alleges the inddent took place was near the medical area was locked at the
bottom and was not used by the staff very much. Mr. Southern testified however, that there was
no medical storage there at the time, but there may have been a paìr of crutches there for a couple of
days or a week. In any event Mr. Southern said that medical personnel would have no reason to
go there. They do not have a key for the stairwell although they have access to a key. Although.
the union filing cabinet was kept there and the Union Executive, Presid~nt, Vice~President,
Steward and members had access, there was no evidence that it was accessed frequently. This
stairwell was not cleaned often. Maintenance had access to the stairwell and entered the stairwell to
check the fire equipment. There was a monthly, weekly check and and a check by the health and
safety committee. These are predictable times, and times that could be avoided.
We have considered whether the use of a radio could have warned Mr. Mailloux of
anyone coming upon them. If Mr. Mailloux was taking advantage of Ms. Dinelle, he ~ould no
doubt have been more attentive to the information conveyed over the nidio. The radios do convey
some infonnation. for instance if an officer wanted to go to the washroom, the radio could be used
to ask an officerto relieve another~ however. radios would not necessarily be totally helpful, as
they were not carried by all officers at all times and were not used to track staff movement. They
were used primarily to transfer information on inmate movement
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In light of these consistences, the only way that we can read Ms, Dinelle's evidence
as having any consistent or logical meaning is if the acts were performed with her consent. It
would be the only way to account for the incidents occurring with guards in the vicinity, with the
ability to hide the incident if someone was to anive, etc. However. Ms, Dinelle stated strongly that
she never welcomed nor encouraged the grievor to made any sexual advances towards her.
When we test Ms, Dinelle's accounts of the incidents and the inconsistency of her
stories, against the probabilìties that surround the allegations, such as the records. and the risks
incurred in abusing power in this manner, and consider all the numerous inconsistencies in Ms.
Dinelle's evidence, and listen to the evidence of independent witnesses, such as Ms. Kuehl and
Mr. Southern, and further consider Mr, Mailloux1s credibility which will be referred to later in this
award, we do not find that there was any clear cogent evidence that it was reasonabLy possibLe for
the incidents to have occurred as Ms. Dinelle alleged. We therefore cannot find that a reasonable
person could conclude, on a balance of probabilities that these incidents happened.
, , -
Pauline .Jacques
, ,We have considered the evidence of Ms. Jacques in its entirety ànd have weighed
her evidence against previous inconsistent statements and testimonies, and against the
inconsistencies given to us in her examination and cross-examination and have assessed it against
her evidence against Mr. Mailloux IS evidence and the remaining employer's evidence and have
found her not to be a credible witness. We found that there were so many inconsistencies in her
evidence from simple matters to the more complex.
The evidence oEMs. Jacques' drug addiction was relevant as it related to her ability
to remember and it provided a motive for allowing herself to be subjected to abuse by Mr.
Mailloux.
The evidence on the extent of Ms. Jacques' drug dependency varied, but the I
evidence leads us to conclude that she was addicted when she entered the jail. Ms. Jacques had I
been using drugs since age eleven and admitted that she was a drug addict on her entry to jaíl in
1990, She had used cocaine for the previous three to five years, as wellas other drugs. She
testified that she was a heavy user at the time, although she had told the admissions officer at her
second incarceration that she was a 'moderate' user. She said she was on drugs a good part of the
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time injail, and suffered withdrawal. She did receive various prescription drugs while she was in
the jail, and withdrawal would be consistent with her medical records which confirmed that sh~
had hallucinations.
At the preliminary inquiry she said that she was "heavy into drugs" at the time she
gave her statement to Bwn, and therefore was not able to recall dates. Ms. Jacques told us in her
direct examination that when she gave her statement to Constable Bain, she had taken some pills
but was lInot out of it'l, butin cross-examination admitted she was under the int1uence of drugs at
the time. Constable Baincommented that she had a cold, but to all appearances understood what
she was doing, but nevertheless he returned to take her statement again. It must have raised some
doubt in his mind the first time whether her account would be accurate.
At the preliminary inquiry in November 1990, Ms. Jacques said she was a
recovered addict and would not forget things. At the trial, she contradicted this testimony, saying
she had been using drugs both before and after the preliminary inquiry. Before us, she rationalized
the discrepancy by saying she slipped three or four times afterwards and when sh~ slipped, her
recollection was not good. Ms. Jacques told us that her testimony at the preliminary inquiry was
affected by drugs and that she forgot things.
At the trial, Ms. Jacques took the position that her mind was clear and her memory
was better because she did not have drugs in her system as she had at the preliminary inquiry. On
the second day of her testimony at the trial, she then said that her answers were better at the
preliminary inquiry, as she had been exhausted the previous day' at trial. In cross-examinati,on,
after debate, Ms. Jacques said that she had been a recovered addict since August 1991, which
would have meant that she was a recovered addict at the trial in October 1991. Before us she said
her mind was clear.
Therefore at each stage of the proceedings, Ms. Jacques took the position that her
mind was clear. 'As she progressed through the proceedings, she also took the position that her
earlier statements or testimony were not accurate at the time they were given. Consistent with her
earlier approach, Ms. Jacques told us that her memory was not very good, but had improved, and
that we should accept her testimony before us. She told us that her mind was clearer now than
three years ago as she was a recovered drug addict, and her present clarity resulted in some of the
chànges to her earlier statement and testimony. This was the reason for instance that she gave for
now bringing forward the new allegation of assault in the laundry room.
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There were areas which showed that she could not be depended upon to tell the
truth on simple matters that had no negative impact. For ex.ample, a request form showed that on
March 25, 1990 she put in a request to see Mr. Ryan. It was received by a correctional officer,
Kelly Ann Toner and it was marked problem solved. At trial Ms. Jacques denied that it was her
signature, but it is clearly like others she had signed. Ms. Jacques could not remember simple
details. At the preliminary inquiry, she said that she was treated for depression arising from incest
and suicidal attempts by Dr. Kwamie who admitted her to the AIgoma Sanitorium. Before us, she
had no recollection of Dr. Kwamie, but recalled a Dr. Awad.
Ms. Jacques fabricat¢ evidence on unimportant matters. In her cross~examination
she testified that she had seen Dr. Lax in 1991, a year before her mother died, but the jail records
indicate that the jail called Dr. L?x and found that he had never heard of her.
Ms. Jacques fabricated evidence where she could have perceived that she would get
privileges. On March 29, 1989, her medical records indicated that she had told the nurse that she
was five months pregnant. Mr. Southern said that pregnant inmates get some additional privileges,
Ms. Jacques was tested and found not to be pregnant. She could not recall the event, but admitted
that it was not true.
Then there is the unlikely story. Ms. Jacques admitted to counsel at trial that after
she was released from jail she thought she saw Mr. Mailloux smiling at her at a mall and almost ran
home. Then at trial and before us she said she was not sure that it happened. Given the facts that
she had testified that she waS within five feet öf the man and considering Mr. Mailloux's unique
physique, and her familiarity with Mr. Mailloux, it is not credible that she would not know if it
was him. When reconsidering her earlier position, she obviously was safer with the position that
she is now not sure that it happened. Similarly she reported someone following her and nothing
ever came of it.
Ms. Jacques' evidence therefo!e, has a number of problems, the first is that she lies
or fabricates events. On the witness' own admission, her recollection of events at each stage is
poor andJlnrdiable. Much of her recollection problem as she admitted at various stages was a
result of her use of drugs. Her recollection and her many variations of the events support her
position in this regard. Even if drugs were not the sole reason for her poor memory, her memory
of simple events and the more complex was often nonexistent or inconsistent. Her testimony
before us was often at odds with her testimony at the preliminary inquiry and at the trial and
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differed in part from her statements. Ms. Jacques admitted that her prior testimony was unreliable
, and took the position that she was better able to remember events now than closer to the events.
A person who lies or who cannot remember, can still be assaulted. However, a
person who lies or fabricates events, with or without the intention to do so, runs the danger that if
an event actually occurs, the person will not be believed. We must examine her testimony on the
incidents and assess it against the other evidence to detennine if its reasonably probable that the
events occurred. In order to make a finding that Mr. Mailloux was involved in trading pills for
sex, or fondled her, there must still be real and convincing proof based upon cogent evidence that
these events occurred.
As with Ms. Dinelle, Ms. Jacques admitted that she had methods of keeping track
of time and dates. Her Players' cigarette package had a calendar on it, she could ask the guards,
and she ordered newspapers. Ms. Jacques also had ready availability to the various services
offered at the jail. Apart from the participating in a Life Skills group led by Patricia Bulloch, she
met privately with 'Carmel' and others from the Elizabeth Fry Society. She also knew about the
ombudsmen letter and had asked for one and said she had sent one on another matter. She had
spoken to her sister, her boyfriend, a lawyer, and a chaplain. She saw the Superintendent on a
personal matter. She made twelve telephone calls. However, at no time did she ever mentionthe
assaults to anyone. Ms. Jacques did not provide ~ny reasons for not doing so. Unlike Ms.
Dinelle, she did not express any concern with treatment by staff.
A rationale that we see for her not mentioning the assaults at any time in her I
situation, is that her source of drugs would have been cut off. However, anhe same time, which I
weakens this position is that she would have only received twenty-one pills from Mr. Mailloux, I
had only asked for them once, and notwithstandìng her avowed. dependency gave two pills away to
Ms. McNally. There remains the alternative ¡x:>ssibility that the events did not happen.
,
We must now look more particularly at each allegation.
Ms. Jacques' First and Second Incident
Ms. Jacques alleged that around the 20th of March, 1990, Mr. Mailloux came to
corridor #3, where she was housed with Ms. McNally and asked her if she wanted to trade fellatio
for pills. In her statement, Ms. Jacques alleged that the next incident occurred the next day when
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she was going up to the library and then again after she returned to corridor #3. The second
incident was a fleeting incident in which Ms. Jacques alleged that Mr. Mailloux stuck his arm
between her legs and fondled her, as she was going to the library. There were no witnesses. The
other inmates had gone ahead. Ms. Jacques reversed the incídents at the hearing before us.
Although Ms. Jacques was quite certain that the incident happened on March 20,
1990, Ms. Jacques also testified later that some of the events 'occurred before March 29, 1990, the
date of her sentenci~g, and some occurred after, She placed the library event as coming after her
sentencing, most likely on March 30, 1990, which is in contradiction to her statement and to her
testimony in direct examination.
As did the Employer, we look first to the logs, the bed books, and the duty roster to
determine if there was an opportunity for the incidents to occur when alleged. We have also
,..
considered a broader range of dates in the event that Ms. Jacques may have been wrong about the
date.
Ms. Jacques was admitted on February 18, 1990 and remained at the Sudbury Jail
until May 6, 1990. She was housed in A Area. The bed OOoks show that she stayed on conidor
#3 with Ms. McNally from March 16, 1990 to April 17, 1990. They then both moved to corridor
#1 on April 18, 1990. Ms. McNally was moved to corridor #2 on April 25, 1990 and never was
housed with Ms. Jacques again. Therefore the incidents would have had to have occurred between
March 16, 1990 to April 17, 1990.
Mr. Ryan found that the schedules showed that from March 12, 1990. Mr.
Mailloux worked March 13, 16, 17, and 18, was off March 19, worked March 20,21, and 22 and
had his regular days off March 23 to March 25, 1990,
On March 20, 1990, the day Ms. Jacques alleged the first incident happened, Mr.
Ryan testified that there was no indication in the logs that Mr. Mailloux was in A Area However,
officers are free to walk anywhere in the facility and their arrival and departure is not recorded
unless it relates to duties which they have to perform. When considering if there were
opportunities for Mr. Mailloux to go to A Area, we found there were two opportuníties. when Mr.
Mailloux was relieved from his duties in D area between 1255 and 1320, or when Mr. Mailloux
was assigned to the library from 1500 to 1900, and as a spare officer or library officer could have
had the opportunity to go to A Area. The latter also would have provided an opportunity for the
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incident occurring on the way to the library, if the incidents were reversed as Ms. Jacques
originally stated in her statement
Mr. Ryan also testified that on March 20, 1990, at 1620 there was a Code Blue
which calls on all available officers, to respond to a fight between inmates on corridor #2. Mr.
Ryan concluded that as a spare officer Mr. Mailloux normally would have responded to Code
Blue. We had however, no evidence from Mr. Mailloux whether or not he did and there was no
record that indicated his presence.
Mr. Ryan found that on March 21,-1990, Mr, Mailloux was assigned to B area
from 0700 to lSCKJ hours and then was the yard officer from 1500 to 1900 hours. At 1745 Ms.
Webb writes that she was relieved by Mr. Mailloux." Although there is no notation when the relief
ended, Ms. Webb had returned as she recorded library parade at 1802. Mr. Ryan concluded that
there was a possibility that Mr, Mailloux could have returned after library parade as he was a spare
. ~.,.
officer.
Mr. Ryan found that on March 22, 1990 that Mr. Mailloux was assigned to G Area
to assist in admitting and discharge from 0700 to 1500 hours and the logs were indecipherable as
to where he was assigned for the latter part of the shift. The log books indicate that Mr. Mailloux
relieved Correctional Officer Webb at 1713 and by 1730 Ms. Webb's handwriting says that dishes
and spoons were taken out of the area and therefore she was back in the area.
Therefore there were opportunities from March 20, 1990 to March 22, 1990 for
Mr. Mailloux to be in A Area as alleged by Ms. Jacques.
Another factor must also be considered. Ms. Jacques consistently testified that
when Mr. Mailloux called her over to the bars and suggested trading pills for sex, only Ms.
McNally was present.
In the period that Ms. Jacques and Ms. McNally were housed together, there were
always more than two inmates housed in A Area, with the exception of March 23, 14, and 25,
1990, On these three days when only Ms. Jacques and Ms. McNally were on the corridor, Mr.
Mailloux was not at work. Therefore, either the incidents had to have occurred in the presence of
more than Ms. McNally or there would have had to be an occasion when some of the inmates had
left the area leaving only Ms. Jacques and Ms. McNally on the corridor.
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On March 20, 1990 and March 21, 1990 the bed book confirmed that there were
four inmates housed on corridor #3 including Ms. Jacques and Ms. McNally. On March 21',
1990, when Mr. Mailloux relieved Ms. Webb, inmate Bretnellleft to do laundry, but the count did
not go down to two inmates. The only time there were two inmates, was between 1308 and 1435
when some inmates went to arts and crafts. Gneof the two inmates remaining was Ms. Jacques,
as Ms. Webb recorded that Ms. Jacques received medication from a nurse at 1312, but there is no
evidence if the other inmate was Ms. McNally. At that time, Mr. Mailloux was assigned to the
other side of the institution in B Area. The relief officer from 1321 until Ms. Webb's next entry at
1345 was not Mr. Mailloux. Therefore in order to be in A Area, Mr. Mailloux would have had to
leave his assigned area of work and there would have had to been more than one officer on the
corridor.. It is doubtful that Mr. Mailloux could have been alone with Ms. Jacques or Ms. McNally
at that time, When Mr. Mailloux relieved Ms, Webb later that day at 1745, there were more than
two inmates on the corridor at that time. However, as there was a library parade that day, as noted
by Webb, there is a possibility that Mr. Mailloux could have gone with the inmates at that time as
alleged by Ms. Jacques.
On March 22~ 1000, there were four inmates in A Area and Mr. Mailloux was not
assigned to A Area. Mr. Mailloux relieved Ms. Webb at suppertime at 1713. Although there is no'
notation as to when Mr. Mailloux left the area, the entry in the log at 1730 in Ms. 'Webb's
handwriting showed that she had returned. 'For anything to happen on that occasion it would also
have had. to happen in the presence of four inmates or with Ms. Webb present.
The logs show that from March 26, 1990, Mr. MaiIIoux's next working day, up to
March 30, 1990, that there was no occasion when Ms. McNally and Ms. Jacques were alone on
corridor #3.
In our view it is highly unlikely that an incident occurred on March 20, 1990 as
alleged by Ms. Jacques. There was a fight in the nexttorridor and sounds travel between the
corridors, even when the doors are shut. Yet, there was never any mention by Ms. Jacques in any
statement or testimony to which we were directed that Ms. Jacques ever made reference to a fight.
It would have been one inddent which from an inmates1 perspective could have pinpointed the
time. Also as there was a Code Blue, and Mr. Mailloux was a spare officer, he ought to have
responded if he was available: His presence which was not recorded as being in A Area, and
which we recognize does not have to be recorded, would have been more noticeable if he had
remained in A Area without any assigned duty at that time. Furthermore, which is more
significant, is that there were four inmates on the corridor at the time.
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I Although Ms. Jacques may have been alone with Ms. McNally on March 21, 1990
while the other inmates went to arts and crafts, we are of the view that it was unlikely that an
incident occurred at that time, as Mr. Mailloux was assigned to another area of the jail and would
have had to leave the area There was no evidence that would show that he may have left the area,
and there was none to show that he was in A Area. Mr. Mailloux was not a relief officer at the
time and therefore he would have had to have been an additional officer in the same area.
We conclude that if an incident had occurred. it would have had to have occurred on
March 21, 1990 from 1745 to 1820 when Ms. Webb was relieved by Mr. Mailloux, or during
library parade, or in the afternoon of March 22, 1990, when Mr. Mailloux relieved Ms. Webb
again from 1713 to 1730, and.ill the presence of more than two inmat~.
There would have been great risks for Mr. Mailloux to trade sex for pills in the
presence of more than one inmate. Assuming that there were <?nly two inmates present, it would
have required Mr. Mailloux to take the gamble that Ms. McNally would see and yet,say nothing.
Acting on Mr. Mailloux's assumption that 80% to 90% of the inmates have a drug addiction, he
would have had to expect that not only would Ms. Jacques have something to gain from the pills,
but so too would Ms. McNally. As it turns out, Ms. McNally, although she had used drugs, was
not a drug addict and there was notlúng to indicate that Ms. McNally could benefited in any way by
.'
this course of conduct. It would be almost suicidal for Mr. Mailloux to try to exchange pills for
fellatio in the presence of four inmates. The other inmates were not called and there was no
evidence tha}.~ny of the other inmates had anything to gain from Mr. Maìlloux by maintaining
I, silence about the acts.
¡
Therefore the most likely time for an incident to occur was when Ms. Jacques was
alone with another inmate on March 21, 1990 while the other inmates had gone to arts and crafts
and Mr. Mailloux was assigned to B Area, which is on the main floor of the jail but on the other
side of the jail.
Ms, McNally as the other inmate present, was called to gìve testimony on this
event. Ms. McNally testified that she did not see anything. as she kept her back to Ms. Jacques
and Mr. Mailloux. She knew what happened, as Ms. Jacques had told her that Mr. Maìl10ux was
giving her Tylenol #3 in exchange for sexual favours. She corroborated the receipt of the pills.
She could identify the pills as Tylenol #3, as they were marked on the pills. Ms. McNally took
. . .
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them even though she said she was not involved in taking drugs. Ms. McNally did not testify that
there were any other inmates with them at the time,
Even setting aside the problems that we have found with the dates selected, and the
hïgh risks of exchanging the pills for fellatio, if we were to strip away these problems as Mr.
Benedict suggested, we still find that there were many variables in Ms. Jacques' description of the
, event. The .details of what occurred in the first incident were not consistent in significant aspects
with Ms. Jacques1 statement. her testimony at the preliminary, at the trial and before us, wht?n she
received the pills, how Mr. Mailloux acted and what she did. Ms. Jacques slated that on the first
incident Mr. Mailloux told her that he would give her pills in exchange for fellatio. Ms. Jacques
said that Mr, Mailloux was walking around the range with his uniform on, but his pants around his
knees. He called her over to the end of the corri<;lor so that the other girl, who she identified as
Ms. McNally would not see. He grabbed her breasts, gavê her six pills, and she pulled away and
sat down. In her statement she says that he wanted her to touch his penis, but did not state that
she did anything. At the preliminary inquiry, she said that he was grabbingher breasts, and when
he pulled down his pants, she backed off.
Ms. Jacques1 direct testimony was consistent with her statement in that Mr.
Mailloux was clothed but had his pants down to his knees. However, she testified that they did
not speak. He gave her the pìlls and then grabbed her breasts. Her testimony in cross-examination
was quite different in that she said that Mr. Mailloux was standing by the bars, with his pants
down and with an erection and is calling her over, trying to be secretive. In her cross-examination
she said that her statement was wrong and he brought her hand and put it onto his penis. She had
also testified at the trial, which she now says is wrong that this happened on the second occasion at
the bars in the cells. Later in cross-examination she accepted the suggestion that she got the pills
and moved quickly away because she did not want to be fondled.
We have several descriptions of the same event. There are several difficulties with
Ms. Jacques' testimony. In order for Ms. Jacques to know that he was going to give her pills in
exchange for fellatio it would have required some conversation, which then could have been
overheard by Ms. McNally who was sitting on the last table of the range within fifteen feet of Mr.
Mailloux. However, Ms. Jacques said that Mr. Mailloux did not speak to her. She also
remembered for the first time, that Mr. Mailloux was bragging about a girl Libby doing this. This
must have required some conversation.
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Was Mr. Mailloux partially dressed or dressed? There is the practical difficulty in
walking in such a state of undress as suggested by Ms. Jacques in her statement, and an even'
."'
greater degree of risk to be standing at the bars in the presence of two to four inmates with an
erection. Ultimately, Ms, Jacques admitted that it was ridiculous that Mr. Mailloux came in semi-
nude, ran the risk of losing his job through Ms. Jacques reporting him or Ms. McNally, who did
not have a drug dependency reporting him. It would not be something that could be done in a
fleeting manner.
When did Ms. Jacques get the pills? Logistically, once she got the pills why would
she remain at the bars. Although it would be most likely that Mr. Mailloux would have fondled her
or required fellatio before giving Ms. Jacques the pill, it was not one that came from the witness,
but accepted by the witness. and was not one that she had previously offered. Did he put her hand
on his penis or did he not?
Her communication with Ms. McNally was also inconsistent. In her cross-
examination before us she denied giving pills to Ms. McNally on the first or any other occasion,
although 'it was clear from her direct examination that she said that she had given pills to Ms.
McNally and later Ms. McNally testified she received pills from Ms. Jacques. Ms. Jacques also
said in her cross-examination that she did not say anything to Ms. McNally:
Ms. Jacques focussed most strenuously upon March 20. 1990, in her testimony
before us, as the date of the first incident, but we note that at the preliminary inquiry, she
remembered the date exactly, as being in February, then later on saìd late February or early March
i, and at trial said about a week and a half before sentencing about March 20, 1990. In the same way
that more than one version was presented, she has testified in the various proceedings that the
incident occurred before lunch. closer to breakfast and before dinner closer to lunch. She has
therefore testified that the incident could have happened at almost anytime of the day.
As there were also no witness to the second incident, occurring on the way to the M"_ß
library, we would have to find that the incident occurred on the basis of Ms. Jacques' testimony
over that of' Mr. Mailloux who denied the incident occurred; There were 'however, some
inconsistencies in Ms. Jacques' recollection of the event. She advised us in her cross-examination
that she did not make a sound, she just ran up the stairs and she did not tell Ms. McNally. This
was in contradiction to her 'evidence at the preliminary inquiry in which she said that she made a
sound and sne told Ms. McNally when she was back on the corridor. We also find that if this was
to be the first event, then it would weaken the possibility that the incident at the bars happened, as
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there had been no òffer of pills, and the incident on the way to the library would have alerted Ms.
Jacques to Mr. Mailloux's intentions,and it would be expected to have created a reluctance to leave
the safety of the range area to go the bars where Mr. Mailloux was standing.
If this was the second incident, then we have difficulty with the timing of the event.
If it had happened the day following the day she received the pills, then the proximity of the two
events, should have given Ms. Jacques some memory of that the two events coming so close
together. We also have the evidence that it happened after her sentencing, some nine days later,
Ms. Jacques' Third Incident
Mr. Ryan tried to place the next incident, in which Ms. Jacques alleged that Mr.
Mailloux gave her pills the second time and was angry at her that she never went to the hole. Mr.
Ryan concluded that Ms. Jacques comments fit the Mr. Mailloux's work schedule.
On March 26 and 27, 1990, Mr, Mailloux was scheduled to work from 1100 to
" 2300 hours. On March 26, 1990 there was no indication of any specific assignment from 1100 to
1500 hours and then he was scheduled in E area from 1500 to 2300 hours. On March 27, 1990,
Mr. Mailloux was assigned to G from 0700 to 1500 hours and then was off sick the rest of the
day. Mr. Ryan concluded from the initialling Ms. Jacques' request Conn which had been given to
Kelly Ann Toner and initialled by Mr. Mailloux, that it could have been on March 26 or 27, 1990,
but was most probably March 27",1990 when Mr. Mailloux was assigned to admitting and
discharge. Mr. Mailloux was schedúied;to work on Saturday, March 31, 1990, upstairs in the area
which included the segregation unit and he had some freedom of movement.
Ms. McNally, Ms. Jacques, and Ms. Morin were together on conidor #3 on March
26, 27,30, and March 31, 1990. On March 30, 1990, Mr. Mailloux was on staff training, but
was also assigned to library from 1500 to 1900. On March 3D, 1990 there was library parade from
1510 to 1540 hours and then there is a notation that Mr. Mailloux relieved the A officer at 1700
hours and the officer returned at 1730 hours.
On March 31, 1990 Mr. Mailloux was working from 1100 to 1500 hours without
any special designation and from 1500 to 2300 hours in C Area, the second floor segregation unit.
Mr. Ryan admitted that there is no Ìndication in A Area log book that would indicate that Mr.
Mailloux was in A Area. Mr. Mailloux was on leave on April 1 and 2, 1990. On the basis of the
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logs and records, Mr. Ryan concluded that Mr. Mailloux had the opportunity to ask Ms. Jacques 19
go to segregation and he was scheduled to be in segregation on the weekend. We accept his
analysis.
Ms. Jacques' testimony on Mr. Mailloux's request for her to go to the hole differed
between OU~ hearing and at trial. At trial she said that he assaulted her on the same day that she
went to the library, and now she says that was not true. Her testimony varied as to where it
happened. She testified before us, that Mr. Mailloux was at the bars when he told her to ask to go
to the hole. At the preliminary inquiry, she said that she telephoned after 2 p.m., which she now
admits is unreliable, and at our hearing she said that she telephoned after supper. At trial, she said
on more than one occasion that when she telephoned Mr. Mailloux, he told her to go to the hole,
She said that her trial testimony was unreliable. In the same way that she told the trial judge that
her testimony at the preliminary was unreliable, and the judge at the preliminary that her statement
was unreliable.
There was also differing evidence by Ms. Jacques on how she got Mr. Mailloux's
telephone number. In her cross-examination before us, Ms. Jacques said that Mr. Mailloux had
given her his telephone number, a seven digit number, on èïgarette rolling paper in pencil. She
then transferred the number, using a blue pen to a medication cup, while Ms. McNally was sitting
with her at a table on the range. She added for the first time that another inmate, Ms. Morin had
also seen the cup. She did not give the cigarette roll nor the cup to the Elizabeth Fry Society. She
lost th~,cup. In the preliminary inquiry, she testified that Mr. Mailloux wrote the number on a
medication cup and gave it to her. The number was a 67 exchange. At the preliminary inquiry,
both she and Ms. McNally testified that Dennis was also written on the cup, Ms. Jacques now
says that she was mistaken at the preliminary inquiry and there was no cup with Mr. Mailloux's
handwriting on it.
"'-
The likelihood of Ms. Jacques receiving Mr. Mailloux's telephone number further
diminishes upon consideration of the risk that he would have exposed himself to by gIving her the
number and her failure to give the cup with the number to the Life Skills group. We find that it is
highly doubtful that Mr. Mailloux would have given her his telephone number in his handwriting
and asked her to contact him. As there is to be no social contact with inmates, subject to approval
it would have subjected Mt. Mailloux to questioning had there been anything with his handwriting
on it. He was also aware that there was to be no social contact with inmates. He had þeen
reprimanded many years ago for playing cards with an inmate. He has no other episodes of
involvement with inmates for which he had bèen disciplined and we would conclude that he has
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learned the limitations in contacting inmates. To add his name as suggested at one point, would
further have increased his risk of exposure.
Ms. Jacques said that there had been a discussion among the Life Skills group
about stopping harassment by Mr. Mailloux and she would have had very damning evidence if she
had had the telephone number in his handwriting, or even if the telephone number could have been
tied to him was in her handwriting. Yet she admitted that she never showed the Life Skills group
the cup.
At the preliminary inquiry, Ms. Jacques said that the number that Mr. Mailloux
gave her was a 67 exchange, which was a Sudbury exchange. Mr. Mailloux lived outside of
Sudbury and did not have a Sudbury exchange. The Labour Council did have a 67 exchange. Mr.
Mailloux worked in Sudbury, but had Ms. Jacques called. a work number it would have either been
the OPSEU number or the Firehall. However, there was never any mention by Ms. Jacques that a
business answered the telephone. To provide a business number for contact by an inmate would
- ,
have created an increasedrisk of exposure.
Ms. Jacques' testimony does not accord with what Ms. McNally said that Ms.
Jacques told her. Ms. Jacques Who had testified at the earlier proceedings that she told Ms.
McNally everything, denied this to us. Ms. McNallyts explanation is that Ms. Jacques did not
have a good memory. Ms. McNally recounted that Ms. Jacques had told her that she had been
involved in consensual sex for pills, that Mr. Mailloux had kissed her, that Mr. Mailloux had given
Ms. Jacques a cup with his name and telephone number on it, which she now deníes, that Ms.
Jacques got pills more than once, that Mr. Mailloux told her to go to segregation, It was only at
..
the trial that she learned that Mr. Mailloux was accused of assaulting her Ms. Jacques against her
consent.
\
Theréfore Ms. Jacquest evidence is inconsistent as to when she got Mr. Maillouxls
telephone number, whether he told her over the telephone, whether he or she had-put the number
on a medication cup, and was there only his number on it or had he added his name, and what she
did with the cup. Although due to Ms. Jacquesl poor memory, it is quite plausible that Ms.
Jacques told Ms. McNally various stories while in jail, and she cannot now remem~r what she
said, there are so many other inconsistencies in Ms. Jacques evidence and as will be seen later in
this decision that we do not accept Ms. McNallis evidence we do not find that there was real and
convincing proof that the incidents alleged by Ms. Jacques in the presence of Ms. McNally
occurred. Ms. Jacques' credibility is further eroded when we consider the corroboration by Ms.
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McNally of certain conversations at earlier stages of the proceedings and the ineffectiveness of this
corroboration after the direct examination and cross-examination of Ms. Jacques in thesè
proceedings,
Ms. Jacques1 Fourth and Fifth Incident
The last incident in the cell, Ms. Jacques testified before us that her statement was
wrong in that Mr. MaiIloux did not put her hand on his penis as she had stated to Constable Bain.
Instead, she testified to us that there were two other incidents where Mr. Mailloux gave her the
pills; squeezed her breasts hard. In one case she received seven pills and in the other eight. Ms.
Jacques said in her cross-examination that the incident where she received eight pills, she had
falsely described Mr. Mailloux as putting her hand on his penis in exchange for eight pills yrï"hër"': _ '..
statement to Constable Bain.
Ms. Jacques said that a female guard came along wlùle Mr. Mailloux was grabbing
her breasts. At the preliminary inquiry, Ms. Jacques could not describe the female guard, at the
trial she did not know who she was and yet before us she identified either Ms. Webb or
Correctional Officer Legace. Ms, Webb. who we believe would have reported any assault that she
witnessed. said that had she seen anything that she would have reported it.
Ms. Jacques' testimony was inconsistent as to what occurred, whether Ms,
McNally was alone with her or whether there were others. It was inconsistent as to whether she
received the pills before or after Mr. Mailloux squeezed her breasts. Her last position was that Mr.
Mailloux grabbed her before giving her the piUs, but this is in direct contradiction to her testimony
given earlier and closer to the alleged incidents.
Ms. Jacques1 New,' Incident
We find that Ms. Jacques' evidence on the laundry incident is also unreliable. On
Ms. Jacques' evidence, the correctional officer 'Paull was sitting ten to twelve feet away. Ms.
Jacques was in view of Paul and Paul would have been able to see her run out At different stages
of the proceedings, Ms. Jacques testified that she saw Paul at different times, both before and after
the incident He would have heard Ms. Morin, who is admitted to be loud, call out.
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The log book showed that Paullachance was working the day that Ms. Jacques
testified that Mr. Mailloux assaulted her in the washroom while she was folding laundry. PauÎ
Lachance testified that the door to the guard walk is left open and the door to the staff washroom is
left open, if there is an inmate folding laundry in the washroom. The table for folding laundry was
just outside the washroom. Paul Lachance said he would not have been able to see into the
washroom from his desk which was between corridors #1 and #2, if Ms. Jacques was folding
laundry there, but he would have seen her if she had run out. Furthermore, if Ms. Morin had
shouted he would heard her as she was a very loud person.
Mr, Lachance testified that he did not recall any time where Ms. Jacques ran out of
the washroom area, or where Ms. Morin or Danielle Prieur, another inmate in the area, shouted to
Mr. Mailloux to leave Ms. Jacques alone. If these incidents had occurred he would have
investigated and written an occurrence report, as he was required by standing orders to report
anytlùng unusual and would have done so to protect himself.
We find that Paul Lachance was a credible witness. He had no interest to gain from
lying, and no motivation for supporting Mr. Mailloux. The weakness in his testimony was that he
was not approached until shortly before giving testimony and therefore any recollection of
incidents involving Ms. Jacques would be poor, unless they were unusual. However, we accept
that his approach is to report anything unusual and that he would have reported the incidents with
, ~ Ms. Jacques and Ms. Morin if they had happened. For example, he had noted in the log of April
24, 1990 that Ms. Morin had gone up to the bars and yelled rape. We also accept his testimony
that after the allegations were made against Mr. Sizer, he' was nervous that he too could be left in a
compromising situation and he protected himself by leaving the main door to A Area open with the
pennission of his supervisor.
We have also considered what is the likelihood that Mr. Mailloux could have the
Tylenol #3 to give to Ms. Jacques. Mr. Kírby Blais, a Security Officer in a management position
testified on the process the jail used for Tylenol #3, which is considered a controlled drug. As the
security officer, Mr. Blais had the keys to the medical dispensary which he kept in his security
officer's vault. He was in charge of all the medication as it comes into the institution. Under the
regulations the surplus can be kept in one vault, and drugs which are used daily, in another vault.
The nurse would request medication for daily use, for the next two weeks or a month, and those
drugs would usually be given out in lots of twenty-five. They are signed for on the Drug Control
Form. The Daily Issues form, a different form, sets out the number of pills in the medical
dispensary ill the medical area of the institution.
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There were two Tylenol #3 tablets in the vault on April I, 1990, which became zero'
on April 12, 1990 when they were signed out for another inmate not connected with this action.
There were no Tylenol #3s in the jail until July 23, 1990, when 100 Tylenol #3's were received
and went into the daily vault.
For most of the period in which Ms. Jacques was incarcerated there were no
Tylenol #3s on hand in the institution and there were insufficient pills to meet the number Ms.
Jacques said that she had obtained from Mr. Mailloux. There were also no irregularities in the
count, nor any record that Mr. Mailloux was given the Tylenol #3s. In addition, correctional
officers do not distribute controlled drugs. If the nurse was not available, the shift superintendent
distributes the drugs. Therefore we find that there is no evidence that Mr. Mailloux was able and
did get the Tylenol #3 from the jail. In order to give Ms. Jacques the pills that she alleged, Mr.
Mailloux would have had to obtain the pills outside the institution.
When looked at in the context of Mr, Mailloux's evidence, we had the benefit of his
drug records. We are not so naive as to believe that these are the only places that drugs can be
obtained, but his local pharmacist would be the most likely and available source of pills. From
1985, the pharmacy records do not show that Mr. Maìlloux was given any Tylenol #3, until he had
his motorcycle accident, just before his discharge. We have also reviewed his common law
friend's drug records and accept her testimony that she has only received Tylenol #3 in 1986 after a
tailbone operation and that she used them all at that time, Whether or not rvtr. Mailloux empties his
medical cabinets as regularly as he says,lÌe would have had to stockpile the Tylenol #3s from well
before 1990. There was no motive at that time for him to do so. We,accept his testimony that his
health care training would have encouraged him to dispense of them regularly.
As Mr. Mailloux was on the outside of the bars añd Ms. Jacques was in the safety
of the range, Ms. Jacques did not have to go near him. As a drug addict. Ms. Jacques would have
had a motive for agreeing to exchange sex for pills. She was' a drug addict on entering the jail and
her allegations if true provided a method through which she would have been able to get some
drugs although not the street drugs, to which she had become accustomed. We would then
conclude that she wanted the pills and did not care what happened. Yet Ms. Jacques says in her
statement and agrees in cross-examination that she definitely did not ever express any willingness
to give Mr. Mailloux sexual favours in exchange for pills, but she testified in cross-examination,
which is more realistic that she just wanted the pills. She was not concerned that Mr. Mailloux
would subject her to degrading treatment as she just wanted the pills. ,If that were the caSe, in
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order to get the pills she would have had to subject herself to the assault first. On that issue, we,
have conflicting evidence on the order of the touching and the giving of the pills.
At the preliminary inquiry Ms. Jacques testified that there were three incidents, and
each of the incidents involved grabbing her breasts. Before us the number of incidents have
expanded.
We have identified some of the inconsistencies between Ms. Jacquesl various
statements and testimony. Although there were many more inconsistencies, we do not see that it
serves any purpose to set out all the variations on the facts. When looked at in totality the only
, consistent significant aspect was that Ms. Jacques made allegations at some time on more than one
occasion, Mr. Mailloux grabbed her breasts in exchange for pills. When she was examined as to
I the details of each event, she could not remember, or she remembered each incident differently.
She could not even provide us with consistent description of the events between her examination in
I chief with a description of the events'that she gave in any proceeding.
We are concerned that an incident may have occurred, but due to Ms. Jacques
inability to discern fact from fantasy, her inability to recollect significant details, we cannot find
~hat if an event occurred that there Ís any cogent evidence supporting such a finding. As Mr. .,-"
Benedict pointed out from the case of OPSEU(Travers) (supra) there can be inconsistencies that
can be overlooked and yet not hurt the credibility of the witness. However, this cannot be
applicable in this case as there were so few facts that remained constant. At the end of Ms.
Jacques' cross-examination" it appeared that her statement was false, her testimony at the "
preliminary was false and her testimony at the trial was false. We do not have anything to base a ~-
conclusion that she was now telling the truth. Even before us she was inconsistent in almost all the
details. We do not believe that she was intentionally telling untruths, and we believe that she
probably believes that some incidents did happen. However, we cannot find that there is any
cogent evidence that these incidents occurred.
The allegations are extremely serious, and we cannot ignore the inconsistencies and
make the assumption that because there were many allegations made we must conclude that there is
a foundation for the allegations. To have real and convincing evidence supporting a finding cannot
mean that we can ignore all the inconsistencies and seize upon the core allegations. We cannot find
that there is any cogent evidence given by the Employer1s witnesses upon whîch'to base a finding
that Mr. Mailloux assaulted Ms. Jacques, exchanged pills for fellatio, exposed himself or gave her
the Tylenol #3s.
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Denise McNally
At first glance, Ms. McNallyrs actions in reporting the incident against her have a
logical foundation. It would be conceivable that if she feared for her safety while she was in jail,
, ,
she would tell someone at the first available moment. That she did. Upon release she went
directly to the Elizabeth Fry Society and then gave her statements to Constable Bain. Ms. McNally
'also took the most logical position in that she says that her statement was true and that the prior
testimony if it differed with the testimony given to us, would be more accurate as it was closer to
the event. On appearances. she was forthright and was àttempting to relate the incident as she
remembered it. Therefore, if demeanour were the sole criteria for detennining credibility, which it
is not. we would have found her to be a credible ,witness. However, when her evidence is
analyzed against more objective evidence, we cannot find that her evidence is credible.
Ms. McNally was aware of the, ombudsmen procedure and requested an
ombudsmen's letter on April 2, 1990 but did not use it. She admitted that she had no fear that a
correctional officer could read an ombudsmen letter. Ms. McNally spoke to Ms; Bulloch about
Mr. Mailloux harassing inmates and yet did not identify the incident that she reported.
Ms. McNally was only involved in one incident She described the incidentln detail
to us. In her statement she placed the incident in April 1990. She said it was on a Tuesday and
confirmed her trial testimony that it was in the 3rd or 4th week of April. She accepted her evidence
at trial that the incident with Mr. Mailloux must have been after April 25, 1990. as she had had a
physical fight with Ms, Morin and was scratched. This was a significant event to her. She did not
get along with Ms. Morin. She initially wanted to press charges, and met a police officer from
outside the jail, but the matter was resolved by the jail separating them. She had the opportunity to
speak to the police about Mr. Mailloux and said that she would have pressed charges against him if
it had happened prior to her meeting the police.
Ms. McNally was with Ms. Jacques and Ms. Morin. They were returning from
either the library or the yard and were by the door to the front of the corridor, waiting for the
runner to Jet them in. The door between conidors #2 and #3 was open. Mr. Mailloux was not the
runner as he did not have keys to let them in. Ms. Webb was on duty as the A Area officer and
was about eighteen feet from the radiator and had an unobstructed vlew. Ms. McNally said that
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she was leaning on the radiator with her feet either in front of her or on the bars. They were
standing in a cane shape with Ms. Jacques closest to the bars, then Ms. Morin and then herself.
Ms. Jacques was looking away, but could see her. Ms. Morin was also looking away. Mr,
Mailloux was standing beside her for a few minutes before he put his hand on the cheek of her'
bottom. She says that he held his hand there for a couple of minutes, although her statement said
five minutes. She said that she tried unsuccessfully to get Ms, Jacques' and Ms. Morin's
attention. She then stepped away. Ms. McNally said that she told Ms. Jacques on entering the cell
although Ms. Jacques denied this. Ms. McNally confiffiled her trial testimony in which she said
that she also told Ms. Morin.
When Ms. McNallyrs information is assessed against the log books, and shift
schedules, the schedules and log books rule out the incident occuning when alleged.
From Ms. McNally's description of the events there were several elements that
were verifiable and useful to determine if there was an opportunity for the alleged assault to occur:
that Mr. Mailloux and Ms. Webb were working on the same day; that Mr. Mailloux was not a
runner; that the incident happened in April 1990; that there were three identifiable inmates; and Ms.
McNally, Ms. Jacques and Ms. Morin who were waiting to get back into the range. Ms. McNally
also said the incident occurred on a Tuesday in ApriL
Mr. Ryan looked at shift schedules both before and after April. He found that there
were no Tuesdays,that Ms. Webb and Mr. Mailloux worked together in April 1990. There were
only two occasions that they worked together at all, Sunday, April IS, 1990 and Friday, Apri127,
1990.
On both April 15, 1990 and April 27, 1990, Ms, Webb was assigned to A Area
from 0700 to 190J hours. On April 15, 1990, Mr. Mailloux was assigned to G Area from 0700 to
1500 hours and then to E from 1500 to 1900 hours. On April 27, 1990 Mr. Mailloux was
assigned to G Area from 0700 to 1500 hours, and then to H (floor runner) from 1500 to 1900
hours. Ms. McNally was sure however, that Mr. Mailloux was not the runner and if that were the
case that would discount part of April 27, 1990.
Mr. Ryan also reviewed the log books for April to determine whether three women
inmates were ever together in the exercise yard and found there were never three female inmates in
the yard at one time. On the possibility that the event could have occurred on Sunday, April 15,
1990, when Mr. Mailloux and Ms. Webb were working the same shift, he found that only Ms.
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McNally and Ms. Jacques were in the yard together. The A Area log book confirmed that two
inmates went to the yard at 1513 and were returned at 1530. At that time however, Mr. Mailloux'
was working'in E Area and had made entries inthe E Area log book at 1519 and 1542 hours, and a
further entry in the log that five inmates were out to the yard at 1535 and returned at 1600 hours,
On April 15, 1990, Ms. Morin was in corridor #2 and Ms. Jacques and Ms.
McNally in corridor #3. As there were females in both #2 and #3 corridors, there would have been
no reason to keep the doors locked between the two corridors. Mr. Ryan agreed that it could not
be April 15, 1990 if all three were to be returning to corridor #3 as Ms. Morin had to returned to
conidor #2.
In any event, Mr. Ryan concluded that April IS, 1990 was the most likely date for
the incident to have occurred if it did occur. However, there were serious problems with
:' suggesting that it occurred on that date. Mr. Mailloux would have had to leave his area Mr. Ryan
conceded that this was possible although unlikely, as Mr. Mailloux had been assigned to E Area,
was maintaining the log, and he and other officer were exercising inmates in Mr. Mailloux's E
Area at the same time as the female inmates. Due to the time described by Ms. McNally required to
'wait for the runner, the time she alleged he stroked her bottom, the unlikelihocx:l that Mr. Mailloux
could leave his area, write the log and supervise inmates in the E Area yard, we do not find on the
balance of probabilities that the incident occurred on April 15, 1990. This date also precedes the
altercation between Ms. McNally and Ms. Morin and on her testimony, she would have reported
the incident.
From April 25, 1990 to May 6, 1990 when Ms. Jacques leaves, the three female
imnates were not in the same corridor.
Mr. Ryan considered the possibility that the incident could have occurred on April
27, 1990, when both Ms. Webb and Mr. Mailloux were working. On April 27, 1990 there were
five males in corridor #3 and two females in #2 of which only one was a complainant. Ms.
McNally was in the yard from 1249 to 1320 hours and Mr. Maìlloux was working in E Area
maintaining the log book. This time Mr. Mailloux worked the main floor from 1S00 to 1900
hours.
We cannot conclude that this is the date either on several grounds. Ms. McNally
had been separated from Ms. Morin as a result of the fight and therefore the three identifiable
inmates could not have been returning to corridor #2 together. Ms. McNally was not out of the
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range with two other female inmates. There were only two, not three inmates on corridor #3,
Furthermore on April 27, 1990, Mr. Mailloux was in E area, and therefore would not be there
unless he was a runner and Ms. McNally made the point that he was not a runner.
Mr. Marcotte in his review of the logs found however, that there was an
opportunity open on March 31, 1990. The bed books showed that Ms. Jacques, Ms. McNally and
Ms. Morin were together on corridor #3 from March 26, 1990 to Apri13. 1990. On March 31,
1990, both Ms. Webb and Mr. Mailloux were working and three inmates went out of corridor #3
from 1250 to 1310 hours and the yard book showed that there were three inmates in the yard from
1245 to 1305 hours.
Of all the complainants, Ms. McNally ought to have been the person who ought to
have been able to pinpoint with greater accuracy the date of the alleged incident. Ms. McNallý
provided her statement to the police on May 10, 1990, as soon as she left the jail. It was therefore
on the coat tails of the incident and she had only one incident to report. She did not have the same
difficulties with memory retention as did Ms, Jacques and Ms. Dinelle, and therefore her statement
that it occurred in April should be given weight.
We have a further difficulty with the issue of the date. Ms. McNally smoked·
Players cigarettes which had a calendar on it. She was able to determine the date, as could the
other complainants had she wished. While Ms. McNally was on range #3 she moved to another.
range to use a phone fifty-three times. Some calls were mOre than an hour in length and in none
did she report a sexual assault. She was not afraid to report the assault if given the opportunity.
However, she did not use the ombudsman's envelope nor did she tell Ms. Bulloch while she was
in jail.
Even though we recognize that Ms. McNally and Ms. Morin were separated due to
the fight, we draw an adverse inference that Ms. Morin who was allegedly there, was not called to
give evidence to support Ms. McNally's position and have her credibility tested. We were also not
given the benefit of her evidence on the contents of the Life Skills meeting where the harassment
was discussed.
Even if we were to discount the issue of the dates and look to the description of the
events, the placement of the inmates and Mr. Mailloux differed before us from Ms. McNally's
testimoniat the trial and preliminary inquiry which were the same.
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As a result of his investigation Mr. Ryan found that there were inconsistencies in
the statement. They could not have occurred when they said and with whom. Ms. McNally has
said in her statement that she told Ms, Jacques when she got back to the range, but Mr. R~an was
not able to look into this as Ms. Jacques was then a former inmate. Ms. Jacques said that Ms.
McNally did not tell her of the incident Due to Jacquesl poor memory we would not give much if
any weight to that comment
Mr. Ryan said that nonnal procedures expect the runner, the inmates and the Area
Officer to be there when the inmates return. NonnaHy the Area officer is the last to go in. Ms.
Webb would have been in the northernmost corner. If there were males in the front corridor #2, as
it appears from the evidence, then the females would not have wait in front of corridor #2. In that
case, what Ms. McNally suggested, would not be normal practice.
In' Ms. McNally's direct evidence, she placed Mr. MaiUoux on her right and
stroking her with his left hand, and Ms. Morin and Ms. Jacques were standing a couple of feet . ,
away on her left side. This is significantly different from her testimony at trial and at the
preliminary inquiry, which were the same, where she placed Mr. Mailloux on her left and therefore
obstructing Webb's view. Now she says that she is not sure whether it was'on the right or on the
left and whether Mr. Mailloùx was obscuring her view. We also have conflicting evidence as to
whether Mr. Mailloux was standing or sitting, and whether she had her feet up or were they on the
floor.
Ms. McNaHyaccepted her evidence from the preliminary inquiry in which she had
saìd that in her mind she believed that Mr. Mailloux was "into feeling up and fondlìng female
inmates". We ask then, why would she place herself in a position where she could be touched. If
she happened to be close to him and it occurred, why would she not tell Ms. Webb, react or
comment. She had no basis to benefit from Mr. Mailloux's actions.
Ms. Webb did not make any notations in the logs of anything unusual and nor
could she remember anything specifically relating to Ms. McNally. She had reported other
allegations that she had heard the previous year. In 1990, she was made aware by inmates who
used her as a sounding board, that inmates Bretnell and an unnamed inmate made allegations of a
sexual nature against Mr. Mailloux. She understood that there may have been another officer who
was aware of allegations made against Mr. Mailloux. She reported these broad allegations to
Acting Superintendent Hoosen on April 3, 1990. Under these circumstances, we have no doubt
that Ms. Webb would have reported Mr. Mailloux if she saw him do anything inappropriate. She
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had reported the allegations early in April and we accept her testimony that under these
circumstances, she would be watching Mr. Mailloux to see if there was anything suspicious.
March 31, 1990 would have been the only time that it would have been possible for
the events to occur with the participants alleged. However, due to the inconsistencies in the
evidence on the description of the events, and the credibility of Ms. Webb, we do not find that
even on the balance of probabilities that the event occurred. We find it difficult to believe that Mr.
Mailloux could stroke a bottom for a period of a couple of minutes to five minuæs in the presence
of two óther inmates and another correctional officer. We also find it difficult to believe that Mr.
Mailloux would run the risk of getting caught fondling an inmate's buttocks in the presence of a
female guard present, whether or not the view was obstructed, on the chance that the inmate would
not complain or say something, or that the other inmates may not notice and may not comment.
Although some people will live on the edge and always move towards increasing the risks in doing
so, we do not see anything in Mr. Mailloux1s background that would indicate that he is that type of
personality. Although Ms, McNally may have been trying to describe an incident as she believed
that it happened, when we also review all the inconsistencies in the evidence and assess it against
the log books, we do not find that there is any real and convincing evidence to support her
allegation.
***
We are in total agreement with the standard of care that a correctional facility must
require of its officers and the vulnerability of the inmates to the power of the officers as set out in
B.C. Government (supra). Arbitrator Hope also points out the problems where the word of an
inmate is in opposition with the word of the correctional officer. As stated at p. 327 of the award:
Inmates are vulnuerable to the integrity and proper conduct of corrections officers in
at least two respects. Firstly, the very nature of the custodial function permíts a
corrections officer to apply force to the person of inmates if circumstances require it
including the prevention of escapes, self-defence and the routine of using physical
force to compel inmates to comply with the necessary instructions in the event of
resistance. In short, a corrections officer can apply physical force legally and
properly and therefore can account for injuries to inmates in a matter consistent with
the proper discharge of their duties.
If a corrections officer abuses the right to use force, the likelihood is that any
complaint would founder in a case where it was a corrections officer's work against
the word of an inmates, That reality gives rise to the second area of vulnerability,
being the vulnerability of.an inmatets credibilìty. One can antìcipate that where an
allegation of assault comes down to the difference between the word of a
corrections officer and the work of an inmate, the word of a corrections officer and
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the word of an inmate, the word of the corrections officer will carry greater weight
for a number of self-evident reasons.
The very fact of that vulnerability raises in a corrections officer a significant duty of
trust. The employer is entitled to treat a breach of that trust as evidence that a
corrections officer does not possess the attributes essential to the proper
performance of what must be seen on the evidence as a potentially frustrating and
provocative role where integrity and self~control are important, even vital qualities.
The standard of a correctional officer as it relates to his or her duties towards
inmates must be beyond reproach. The position is one of power and one which can easily be
abused. Therefore when the Employer-receives numerous complaints of sexual assault made by
the inmates, those complaints must and were treated seriously.
We must assess the evidence as a whole and make our findings. The allegations
made could conceivably happen as Mr. Mailloux, as a correctional officer, is not watched and
"'Ïnonitored and has a freedom to walk throughout the jåil. Correctional officers are often alone with
inmates and if Mr. Mailloux were alone with any inmate it would not raise any suspicion or any
concern. The logs themselves do not exculpate Mr. MaiHoux as they do not provide a complete
picture of movement by the inmates and correctional officers. As Mr. Benedict p::linted out the logs
did indicate there were opportunities for at least some of the incidents to have occurred.
One of the more troublesome issues in this case is the issue of motivation by the
inmates and the lack of contact between Ms. Dinelle and the other two complainants. "None of the
complainants had anything to gain by making these allegations. We ask why. would they make
such serious allegations against Mr. Mailloux, Ms. Dinelle did not know Ms. Jacques and Ms.
McNally. and there is no evidence of any communic<.ttion between them. However, there is a link,
and that is Patricia Bulloch, Ms. Bulloch led Life Skills groups on a regular basis. Both Ms.
Jacques and Ms. McNally attended. Ms. Jacques said at the preliminary inquiry that she and Ms,
McNally, and subsequently before us, said she and Ms. Morin, decided to speak to Ms. Bulloch
about Mr. Maìl1oux's behaviour to put a stop to it. Whether or not Mr. Mailloux was named,
which Ms. Jacques asserted that he was, Ms. McNally also testified that they did discuss Mr.
Mailloux grabbing and harassing inmates. There was confusion in the evidence as to whether the
discussion occurred at or after arts and crafts or a Life Skills class, but it is not material. Ms.
DinelIe testified that Ms. Bulloch told her of the allegations by one of the inmates against a
correctional guard. Ms. Dudgeon had also named Mr. Mailloux as sexually assaulting her.
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Unfortunately Ms. Bulloch was not called to testify, The Union objected to the
calling of Ms. Bulloch on the grounds that her testimony would be hearsay. The Employer and the
Union reached an agre~ment on her evidence, but that evidence was not of assistance to us.
Among some of the questions that are therefore left unanswered, was what occurred in the
,conversation with Ms. Dinelle, why was she contacted, whatwas she told, how much information
was of her own volition: We also do not have any details of corroboration of the discussions in
the Life Skills group. Without Ms. Bulloch's evidence we are unable to find that- there was no
connection, but the evidence as it stands leads us to conclude that there was a connection between
the inmates through Ms. Bulloch and it provides a reasonable explanation why allegations made by
inmates that had no other connection between them could be made and were made within such a
short period of each other.
On the other hand there was a relationship between Ms, Jacques and Ms, McNally.
They were cell mates, and did do things together. They did converse. An issue was made by the
Union, as to whether they were friends or were companions. Nothing turns on it. We accept Ms.
Jacques' distinction and find that they were companions and not friends in that they did not see
each other after the incarceration. A more plausible explanation was given by Ms. McNally that
there was a dispute between them towards the end of Ms. McNally's incarceration and therefore
could not at the time of the hearing before us remain friends.
As there were no witnesses to any of the incidents, the credibility of each of the
inmates is paramount. We cannot find that because there are many allegations made, all of which
are serious in nature, that the number therefore creates a fiI}<:iing that the incidents occurred or
created a, reasonable probability that they occurred. The nature of the man's reputation is at stake. ,
Although the events do not need to be proved beyond a reasonable doubt, there must be a high
degree of probability that they occurred. There must be real and convincing evidence. As recently
pointed out in R. v. M.G. (C.A.) (Grange, Galligan and Arbour J.J.A.) (September 8, 1994) at
paragraphs 23 and 24:
Probably the most valuable means of assessing the credibility of a crucial witness is
to examine the consistency between what the witness said in the witness box and
what the witness said on other occasions, whether on oath or not Inconsistencies
on minor matters or matters of detail are nonnal and are to be expected. They do
not generaJly affect the credibility of the witness. This is particularly true in cases
of young persons. But where the inconsistency involves a material matter about
which an honest witness is unlikely to be mistaken the inconsistency can
demonstrate a carelessness with the truth. The trier of fact is then placed in the
dilemma of trying to decide whether or not it can rely upon the testimony of a
witness who has demonstrated carelessness with the truth.
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The e.ffect of inconsistencies upon the credibility of a crucial witness was recently
descnbed by Rowles lA. speaking for the British Columbia Court of Appeal in R.
V. B. (R.W.) (1993),40 W.A.C. 1:
Where, as here, the case for the Crown is wholly dependent upon the testimony
of the complainant, it is essential that the credibility and reliability of the
complainant1s testimony be tested in light of all the other evidence presented,
In this case there were a number of inconsistencies in the complainant's own
evidence and a number of inconsistencies between the complainant's evidence
and the testimony of other witnesses. While it is true that minor inconsistencies
may not diminish the credibility of a witness unduly, a series of inconsistencies
may become quite significant and cause the trier of fact to have reasonable doubt
about the reliability of the witness' evidence. There is no rule as to when, in the
face of inconsistency, such doubt may arise but at the least the trier of fact
should look to the totality of the inconsistencies in order to assess whether the
witness's evidence is reliable. This is particularly so when there is no
supporting evidence on the central issue, which is the case here.
When we reviewed the complainants' evidence there were so many inconsistencies
in their testimony, and as it related to prior statements made in different surroundings. We have
reviewed many of those inconsistencies in the course of reviewing each complainant's account.
They were not merely details that would not affect a witness's credibility. They were so numerous
and went to significant aspects of the incidents, so as to attack the reliability of each of their
testimony. We cannot rely on the many changing accounts of each incident to find that the events
happened.
It is understandable that using logs to refresh memory can clarify events and plClce
the events. However, in these circumstances it is our view that the logs and records were used by
the complainants to fix time and place upon which to pin the allegations. They did not have the
logs prior to making the statements and therefore could not at that time fix events. This would
account for the vagueness of time set out in the statements. Subsequently, they reviewed the logs
with various persons in preparation for various stages of the litigation, but did not have the
sophistication to analyze the logs and use them to strengthen their testimony. The result is that we
have general statements made by the complainants, which they later modified as to time and date.
The chosen times and dates were then severely eroded by stringent analysis of the times and dates
alleged, the results of which were put to the complainants in cross-examination.
At this point we must comment. on the way the statements were taken. Constable
Bain attended to take witness statements.' They were not verbatim. When they were transcribed
they were embellished. Even though the witnesses were able to read them over and were asked if
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they were true, if a statement is taken in the witnesses handwriting and then transcribed it should'
be accurate, The purpose of taking statements is to take them in a timely fashion, and accurately so
that they can be an accurate account of the facts as recounted. To restate what the witness is saying
can, as in this case, lead to the witness then adopting the new statement, which has then different
connotations. In this case in our view it was the embellishment, by Constable Bain that lead Ms.
Dinelle in one instance to create new evidence. Reading her statement in its typed written fonn lead
Ms. Dinelle to state evidence which she had not recalled before. Her written statement said lion
this occasion he tried grabbing me and kissing me anyway!' which became "on this occasion he
was grabbing me all over my body", However, although Constable Bain was not careful in the
transcription of the statements or did not find it necessary to take the statements verbation, in the
context of the other inconsistencies these errors do not change the outcome of our views.
In this case the complainants asserted that the incidents occurred and Mr. Mailloux
denied they happened. Mr. Mailloux did not have memory of specific events, incidents or times,
Mr. Mailloux's failure to recall events could be interpreted in several ways. He could be lying or
trying to obfuscate the hearing by failing to remember events, or if Mr. Mailloux did not commit
the acts aJleged, there would be nothing to remember. 'This is not a situation in which certain acts
occurred but are capable of a different interpretations. Therefore lack of memory of an alleged
incident is not in itself sufficient, to find that Mr, Mailloux committed the acts alleged, On the
contrary, had the complainants made their complaints in a timely manner and had specìfied the
dates they believed the incidents happened it could have provided Mr. Mailloux the opportunity to
put his mind to the period of time and consider incidents that were far from ordinary or have
allowed them to place the allegations in the context of the routine of the jail. The failure of the
complainants to state when the events were alleged to have occurred, but for the broadest of time
frames, may have disadvantaged Mr. Mailloux from preparing a defence based upon logs, records
and an recollectìon of events that may have been routine" but may have refuted the allegations. The
failure to provide the dates upon which it was relying at the outset of the hearing may have
prevented Mr. Maillou"x from preparing the best defénce possible. vve do not believe that
Employer's representative was in any way trying to misleJid the Board or the Union. In this case,
the lack of particularity arose not from any manoevering by Employer's representative, but arose
from the changing testimony of the complainants through the 'proceeding before us and their
variations from their earlier testimony. We do not find it a matter of denial of natural justice, but an
element that attacks the credibility of the complainants.
Employer's counsel alleged that Mr. Mailloux did not have the demeanour of an
innocent man, and he did not express outrage against the proceedings that he had been subjected
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to. As set out above, and in the Court of Appeal decision in R. v. Norman 16 O.R. (3d) 295
demeanour does not in itself determine a witness' credibility. Even if we were to give weight to
this argument, or accept it as a factor, Mr. Mailloux has experienced a preliminary inquiry, a trial
and has sat through thirty days of this hearing and has been the subject of various proceedings over
the last five years. One could not expect that a person necessarily be outraged at the proceeding.
In our view as set out in Farnya v. Chorney (supra) and as discussed earlier, it is a composite
of factors that is determinative of a person1s credibility.
The Union suggested that one of the factors that ought to be considered in assessing
the complainants' credibility, is the presence or lack of presence of a criminal record as a reflection
of the person's character. As in Re Manitoba v. M.G.E.U. (Jackson) (1993) 32 L.A.C. (4th
339 (Schulman) and Re Seven Oaks School Division No. 10 and Teachers
Association (1990) 13 L.A.C. (4th) 15 (Chapman) we accept evidence of character as one of the
factors in assessing a witnesses character.
I Mr. Mailloux received excellent character references from three people he had
I worked with, in various capacities, They found that he was trustworthy, hardworking, and a
I female union member felt safe in his presence and had used the grievor to be escorted safely at
night when she was at convention. These letters of recommendation speak well of him, and they
confirm a general approach towards honesty and reliability. They reinforce his credibility,
although they do not answer the question that must still be asked, and that is whether there are
reasonable and probable grounds that Mr. Mailloux committed the acts alleged by the
complainants.
We have also considered and remarked earlier on the risk of detection. When
weighing the risk of detection, and against the resulting loss if detected, the loss would be severe
as evidenced by the criminal and these proceedings. It would have meant that for some fleeting
moments, that the grievor would have lost all the achievements that he has gained in his career. It
is not that there have not been others who have been in respected ¡x>sitions who committed acts that
have jeopardized their careers, but this is another factor.
We have also considered the nature of the complainants convictions. The
convictions gives some insight into their character and gives an indication of attitudes, but cannot
be determinative of the issue. It is merely a factor. Just because an complainant is in jail and has
been convicted of a criminal offence does not mean that the events could not yet stìlI have occurred.
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It merely highlights that an abusive situation could'take place, and the inmate disadvantaged, if chis
were merely the sole criteria.
We have looked at each compJainanes evidence on its face and then have also tested
their evidence agaìnst the more objective surroundings, such as the routine of the jail, and the logs
and records, and the evidence of other witnesses. In face of Mr. Maillouxts' assertion that he did
not commit the acts, we have looked at his denials against the opportunities available as indicated in
the logs and records and the evidence of the other independent witnesses. ., We do not find that
when the evidence of each of the complainants is looked at asa whole, that a practìcal and
infqrmed person would find that it is reasonably probable that these incidents occurred in the jail,
bearing in mind the lesser standard of proof than found in criminal matters. We cannot find that
there was any evidence of a convincing nature that leads us co find that the events occurred as
alleged. After reviewing all the evidence, the case law and submissions of the parties, we therefore
find that there was no just cause to dismiss the complainant.,
We order his immediate reinstatement and compensation without loss of benefi~s or
seniority. We will remain seized in the event there is any difficulty with the implementation of this
award.
***
~
With respect to the suspension under section 22(1) of the Public Service Act,
section 22(1) states:
22( 1) A deputy minister may, pending an investigation, suspend from
employment any public servant in his ministry for such period as the
regulations prescribe, and during any period of such suspension
may withhold the salary of the public servant.
There is jurisprudence to support management's rights to suspend the grievor
pending dispositíon of the criminal charges if the particular circumstances justify the suspension
(as ·cited in OPSEU(Miller) and The Crown in Right of Ontario (Ministry of
Correctional Services) GSB #2613/87 at pages 9 and 10 "(Re Phillips Cables Ltd. and
V.S.W., Local 7276 (1974), 5 LAC (2d) 274 (Adams)~ Re Toronto Newspaper Guild,
Local 87 and Toronto Star Ltd. (1972), 24 LAC 187 Rayner); Re Dominion Stores Ltd
and Retail, Wholesale & Department Store Union, Local 414(1976) 6 LAC (2d) 373
(Johnston)~ Re Toronto Harbour Commission and Canadian Union of Public·
I
I
I
~' ", I> ,to
, I
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EmployeesJ Local 186 (1983), 8 LAC (3d) 433 (Kates). With respect to disciplinary
suspension without pay of public servants in Ontario pending the outcome of criminal charges, see
Knudssen et al and Liquor Control Board of Ontario, a decision of the Grievance
Settlement Board, published at (1980), 26 LAC (2d) (Eberts); and Re the Crown in Right of
Ontario (Liquor Control Board of Ontario and Liquor Licence Board of Ontario)
and Ontario Liquor Board Employees' Union, another decision of this Board, published at
(1984), 18 LAC 251 (Mclaren)").
We recognize that the Employer having been advised that there were complaints of a
serious nature made by four inmates who had been under its care and control, and that if the
allegatL()ns were proven to be correct could v~ry well place other inmates at risk, thereby justifying
a suspension. However, in this case the Employer did not follow that course of action and did not
rely on its management rights, but specifically suspended the grievor pursuant to section 22 of the
Public Service Act. Having done so, the Employer must then meet the criteria set out in that
section.
We were directed to the case of OPSEU (Miller) (supra), which is different in its
facts. The Ministry dismissed the griev.or, and then rescinded its dismissal and suspended the
grievor indefinitely untìl his criminal charges were resolved in his favour. The Ministry conceded
that there was no investigation and the Board found that there was no overwhelming risk to the
employer if it employed the grievor in the jail but with less contact with the inmates, Although the
latter was not determinative of the issue as to whether the Employer proved it had just cause to
suspend the grie'vor pursuant to section 22 (1) of the' Public Service Act, the Boar9
nevertheless found that the Employer did not suspend the grievor for the purpose of conducting an
investigation, when it suspended the grievor retroactively. However, it did find that for the period
when it was conducting an investigation it was appropriate. What is material to both the OPSEU '
(Miller) (supra) case and our case is that the Board stated "waiting for the disposition of criminal
charges is not an investigation. Once again, it is an abuse of section 22(1) to use the power in
order to wait indefinitely for the disposition of criminal charges. Once the Ministry had completed I
its investigation, the Deputy Mirúster's authorized under section 22 (1) came to an end." I
In the same way it is our view that although the deputy minister had the right to
suspend Ms. Mailloux pending an investigation, an investigation had to be undertaken by the
Ministry and the Ministry had to come to some conclusions. Mr. Ryan conceded thai he did not
interview witnesses and he did nothing that could be characterized as an investigation. . Although
Mr. Marcone has diligently reviewed the log books and records, he did not so during the term of
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the suspension as he was not at the jail and was not involved in any way at the time. The only
evidence that we have of an investigation, was the accumulation of the inmates' statements by
Constables Bain and Allain. Although the Ministry knew that the police would be asking the
complainants for their statements the Ministry was not involved in any investigation. It merely
suspended the grievor and extended the suspensions until his trial date was set. The Employer has
not established that there was an investigation and therefore this grievance is also upheld.
We will remain seized in the event there is any difficulty with the implementation of
this decision.
We would like to thank the parties' representatives'-for their ex.tremely competent
presentation of this case. Due to the nature of the allegations and the numerous records that were
required in the consideratiion of each of the events, the length of the hearing was unavoidable. We
apreciate the effort that was made by counsel.
-
Dated at North York, this 8th day of June, 1995.
A 4
B. A. Kirkwood, Vice-Chair
Member
..
N 21 ~W~ M1J~qd~~'·IV
/ -;ÞJ/~ "~
D, Montrose, Member