HomeMy WebLinkAbout1990-1128.Kanerva.92-12-16
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ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES OEL'ONrARIO
1111 GRIEVANCE COMMISSION DE
SETTLEMENT .
REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO M5G IZ8 TELEPHONEITEUiPHONE (~It5J ]26-1]88
180 RUE DUNDAS OUEST BUREAU 2;00 TORONTO (ONTARIO) M5G 1Z8 FACSlt-1/LE'TELECoPIE {J 161 ]26- 13915
1128/90, 1618/91
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN BMPLOYEES COLLECTIVE BARGAINING ACT
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Before
THE GRIEVANCE SETTLEKEHT BOARD
BETWEEN
OPSEU (Kanerva)
Grievor
- and. -
The Crown in Right of ontario
(Ministry of Correctional Services)
Employer
BEFORE R. Verity Vice-Chairperson
M. Lyons Member
D. Clark Member
FOR THE M. Bevan
GRIEVOR Grievance Officer
ontario Public service Employees Union
FOR THB J. Ravenscroft
EKPLOYBR Grievance Officer
Ministry of correctional services
BEARING February 17, 1992
May 20, 25, 26, 29, 1992
September 1, 2, 1992
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DEe I S Ion
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Shawn Kanerva was dismissed from his employment as a
correctional officer 2 at the Sudbury and District Jail on April
17, 1990, following a suspension without pay on April 3. At the
time of termination Kanerva had been E~mployed at the jail j:or
approximately four years The primary reasons for dismissal were
breach of security for carrying a message on behalf of an inmate
without the knowledge of jail authorities and alleged trafficki.ng
in narcotics in the jail. Hr Kanerva alleges that he was
suspended and discharged without just cause. He seeks
reinstatement with full remedial redress
The reasons for dismissal were specified in a letter, dated
April l7, 1990, from Sudbury Jail Superintendent A. Hooson, as
follows:
Re: EMPLOYES DISCIPLINAR'! MEETING
held 09 April 19910
A meeting was held with you ana. your representatives (it
approx ll30 hrs on the above date The purpose was to
answer to the allegations.
1. That you contravened the Public Service Act lO (1)
2. You carried or sent written or vE!rbal messages to or frclm
the inmate(s) except under circumstances as are necessary in
transacting the business of the institution.
3 You failed to report to the superintend,nt as soon as it
was known to you that the relationship with inmate(s) which
could be construed as a conflict of interest or possible
breach of security You did commit a breach of security by
engaging in personal relationships, not in the line of duty,
with an inmate(s} at the Sudbury Jail for the purpose of
smuggling in a contraband drug
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At the meeting you admitted to the allegation that you
carried verbal or written information to or from an inmate not
for the purposes of conducting the institution business. You
failed to supply any reasonable statement that you did not
commit the other allegations against you Information
received indicates that you did violate your Oath of Office
and Secrecy You did commit a breach of security.
In light of the aforementioned, you are hereby dismissed
immediately from the services of the Ministry of Correctional
Services
The grievor's dismissal resulted from the Employer's reliance
upon the findings of an Ontario Provincial Police investigation of
an undercover drug operation at the Sudbury J ai 1 in March 1990
The purpose of the investigation was to curtail the passage of
drugs into the jail and to determine the magnitude of the problem
The investigation, conducted by Sudbury 0 P P Sergeant William Van
Allen ("Van Allen"), commenced on March 5, 1990 and focused
primarily on information provided to the police by an inmate
informer. At the hearing, Van Allen testified that he anticipated
a lengthy investigation involving the use of wiretaps However,
the investigation was aborted at the end of March on information
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that a fully loaded hand gun was to be brought into the jail and
given to an inmate In fact, no such gun was brought into the
Sudbury Jail.
Based on information provided by the inmate informer (for the
sake of convenience referred to as II Inmate A"), drug related
charges were laid against five persons - two inmates, a drug dealer
living in Sudbury and two staff members - Kim Sloan, a storekeeper
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at the Jail and the grievor. In this connection, the gr ievor 1f1as
charged with three counts of trafficking in a narcotic (cannabis
resin, commonly known as t1hashll) on March lit 15 and 28, ll.390
respectively, contrary to s 4(1) of the Narcotic Control Act.
Except for the grievor, all accused pleaded guilty at the
preliminary hearing stage. The inmate informer testified as a
Crown witness at the preliminary hearings of the two inmates and
staff member Kim S19an However, he refused to testify at the
griever's preliminary hearing. As a result, all charges against
the grievor were dismissed for want of prosecution at his
preliminary hearing on June 4, 1991
At the hearing before us, the evidence against the griever was
provided primarily by Inmates A and B. 'rhe principal witness was
Inmate A who was incarcerated at the Su~,ury Jail from February 9
to April 4, 1990 following a conviction for fraud and a sentence of
10 years That sentence was later reduced on appeal to six years.
Admittedly, Inmate A's criminal record includes forgery, break,
enter and theft, robbery, several con.victions for fraud and
violations of mandatory supervision orders.
Inmate B was "a regularll at the Sudbury Jail who has been
convicted of a number of offenses including break, enter and theft,
shoplifting, assault causing bodily harm and various breaches of
jail recognizances. He is currently serving a six year term at
Kingston Penitentiary
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As the investigation proceeded, Van Allen kept in contact with
Inmate A, made a non-verbatim summary of the inmate's disclosures
(Exhibit 3) and provided the inmate with money to purchase drugs
There J.5 no dispute that 518 Victoria street in the City of
Sudbury, which was the home of Inmate Bts girlfriend and her
family, was an outlet for drugs The police maintained periodic
surveillance of that address Van Allen testified that on March
19, 1990, he purchased three five gram vials of hash oil at 518
Victoria Street for the sum of $l65 00 In Van Allen's own words,
"I began to be a courier of money to 518 Victoria Street I would
give it to people who resided there for drugs for 'Inmate A'
they undertook to have drugs delivered to the jail... when 'Inmate
At received what we had purchased, he would telephone us to say he
had taken delivery and arrange for me to receive those 'Exhibits'
from him which I would then have analyzed".
Van Allen first interviewed Inmate A on February 22, 1990 at
the request of North Bay police regarding information that Inmate
A had allegedly obtained from another inmate about a homicide The
issue of illicit drugs at the Sudbury Jail was first raised by
Inmate A on the morning of March 5 According to Van Allen, Inmate
A said, in effect, that another inmate had offered to supply him
wi th drugs, that a cook was involved in bringing drugs into the
jail, and that he agreed to co-operate with an undercover drug
investigation.
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On the afternoon of March 5, Inmate A reported to Van Allen
that Inmate B had informed him that drugs would be picked up at
approximately 11.00 p m that night by ,a correctional officer who
was described as "5' 10", blonde, good J::>ui ld, fair complexion and
blue eyes" However, Inmate A was then unable to provide a name
identification.
Sudbury 0 P P conducted a surveillance of 518 Victoria street
and at 10 59 P m on March 5 observed a dark coloured pick-up truck
with a white top pull into the driveway The sole occupant of the
truck entered the residence and exited "some two minutes later"
The police obtained the licence number of the vehicle and
subsequently ascertained that it was registered in the name of the
grievor On the following morning, the grievor was arrested on his
way to work The grievor acknowledged being at 518 Victoria Street
and offered the explanation that he had d,alivered a message from an
inmate to his girlfriend requesting an immediate visitation Van
Allen expressed disbelief of the explcmation and obtained the
grievor's permission to search the vehicle
Van Allen was suspicious that certain items found in the
vehicle were suggestive of "drug paraphe:rnaliatl as well as a Slip
of paper containing the name "Cherline", cl telephone number and the
address 518 Victoria Street However, the suggestion did not rise
above the level of suspicion and no drug analysis was undertaken
According to Van Allen, the grievor declined the suggestion that he
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undergo a polygraph test
It may here be stated that the grievor testified to the
contrary -
During the month of March 1990, Inmates A and B were housed in
separate cells in #4 Corridor in "B" Area at the Sudbury Jail At
the hear ing , Inmate A testified that on four separate occasions
during the month of March, he observed the grievor pass drugs to
Inmate B He recalled an incident at 4'20 p m on March II where
he observed the grievor pass Inmate B a five gram vial of hash oil
which was then passed on to another inmate. On the same date at
approximately 8 30 p.m., Inmate A testified that he witnessed the
grievor pass Inmate B a white envelope containing "cigarette papers
smeared in hash oil" which were subsequently passed around to other
inmates, including Inmate A On March l2, Inmate A gave Sergeant
Van Allen "a hash oil joint" which he alleged came from the
envelope
Inmate A testified that on Harch 15, 1990 at approximately
7:50 a.m he observed the grievor give Inmate B a small vial of
hash oil and a small package He states that Inmate B broke off a
small piece of hash from the envelope and gave it to him and the
remainder to other inmates Inmate A later gave to Sergeant Van
Allen two pieces of hash fused together, one part allegedly
provided by the grievor in the morning and the second part provided
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by staff member Kim Sloan in the afternoon
On Inmate A's testimony, he fixed all times specified by him
by pushing the clock button on the corridor T.V. set Inmate A
testified that on March 28, 1990 at 12:25, he observed the grievor
deliver five grams of hash oil to Inmate B and overheard the
grievor ask that inmate "to roll him a few joints" Inmate B is
alleged to have given Inmate A approximately two and one-half grams
of hash oil poured into a separate container Inmate A handed over
the hash oil to Van Allen the next morning
On the following day, March 29, according to Inmate A he was
approached by the grie\7or and warned "to suitcase" (to insert
rectally) any drugs in his possession because of the likelihood of
a search
In his written statement (Exhibit 3) , Inmate A identified
other Sudbury Jail personnel who he alleged were involved in
trafficking in drugs including Kim Sloan, a cook by the name of
Peter Hunter and another correctional officer, Marc Cardinal At
the arbitration hearing, Inmate A testified that he identifiE~d,
from photographs, two other staff members involved in drugs, but
was unable to recall their names In pa,rticular, in his written
statement, Inmate A alleged that on March 19 at about 6 40 pm,
correctional officer Marc Cardinal gave him "three five grammers of
oil, two wrapped in cellophane with paper tape wrapped around each
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and one unwrapped~ Inmate A also testified that on March 21 at
about 10 40 pm, Marc Cardinal ~passed me a green Export tobacco
package" containing "five vials of hash oil"
Except for the grievor and Kim Sloanl no other staff member
was charged with trafficking in drugs.
Inmate A's explanation for his involvement in the undercover
operation deserves critical examination To quote Inmate A, his
reason for co-operating with the pOlice was founded on the belief
that his "keepers should not be breaking the law". He then
explains away his refusal to testify against the grievor in court
by saying that he was repelled as a consequence of the light
sentences given to Kim Sloan and the two inmates following their
respective convictions.
To pass to Inmate B: His testimony was to this effect; that
he sold narcotics "on the street" to the grievor, Kim Sloan and
Marc Cardinal before being incarcerated at the Sudbury Jail; that
prior to incarceration on the present occasion he sold a "bag of
acid" to the grievor for $40 00 at the Coulson Hotel in Sudbury;
that he sold "a line of cocaine" for $40 00 to correctional officer
Marc Cardinal at the same hotel; that he asked the grievor to pick-
up a "fiver" (five grams of hash oil) at 518 victoria Street on the
night of March 5 and at the same time handed him a piece of paper
containing the name, address and telephone number of his
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girlfriend; that he believes the grievor attended S-l8 Victoria
street "two to three times a week" following the incident of March
5; and that the grievor brought. drugs to him Itonce" in the form of
five grams of hash oil, part of which he passed on to the grievor
As to the time and dates of these transactions, Inmate B has no
recollection
According to Inmate B, the idea to bring a fully loaded
revolver into the jail originated with Inmate A by way of a plan to
dupe a correctional officer into thinking that he was bringing in
drugs
Inmate B testified that he was not aware that Inmate A was a
police informer. Inmate B was personally charged with three counts
of trafficking in narcotics, pleaded 9uilty to two counts and
received a nine month sentence He gave two statements to the
police - the first dated April 18, 1990 and the second dated ~~y
23, 1990. In cross-examination, he acknowledged that he had lied
in both statements to the police On his evidence, he was moved to
lie in order to promote a bail application. I
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We return to the samples or articles given by Inmate A to Van I
Allen referred to above As to the cigarette allegedly passed by
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the grievor to Inmate B on March II, a Certificate of Analyst from I
Heal th and Welfare Canada (Exhibit 4) established that it contained
a narcotic (cannabis resin). As to the sample allegedly passed by I
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the grievor to Inmate B on March 15, a Certificate of Analyst
(Exhibit 5) established that it was a "solid material" containing
cannabis resin.
I As to the article allegedly given by the grievor to Inmate B
I on March 29, a Certificate of Analyst (Exhibit 6) established that
I it was a "dark tarry material" containing cannabis resin
I On information provided by Inmate A, the grievor and Kim Sloan
I were arrested on April 2, 1990 and charged with trafficking in
I narcotics. In Van Allen's own words he was "forced to believe
I Inmate A although it was impossible to corroborate his evidence"
In cross-examination, Van Allen testified that he had "no idea" how
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I the grievor was obtaining drugs and surmised that "he (the grievor)
I received a small quanttty of narcotics in payment" Inmate A did
I not testify that he was given drugs directly by the grievor
I Van Allen testified that the cook, Hunter, although suspect in
I the illicit drug dealings, was not charged because of insufficient
I evidence Correctional officer Marc Cardinal was not charged
I because he was not on duty at the time of the commission of the
alleged drug dealing offence on March 21
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Alwyn Hooson has been Superintendent of the Sudbury Jail since '.
1976. As a result of access to a confidential police report,
Superintendent Hooson held a disciplinary meeting with the grievor
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on April 9, 1990 In the sequel, HODson decided that the
termination of the grievor's employment was the proper course of
action At the request of Superintendent Hooson, Van Allen's
investigation was terminated on hearsay evidence made available to
Hooson that a gun was to be brought into the facility.
Marc Cardinal ("Cardinal") a correct.ional officer testified on
behalf of the Union He denied purchasing drugs on the street or
at the Coulson Hotel as alleged by Inmate B. Further, he denied
bringing drugs into the jail In that connection, he denied giving
hash oil to Inmate A on either March 19 or 21, and denied giving
cigarette papers soaked in hash oil to Inmate B on April 2.
The grievor testified that he had no involvement with Inmclte
B in the purchase of drugs either on the street or at the Coulson
Hotel, and that he neither brought contraband drugs into the jail
nor picked up any drugs from 518 Victoria street As to his
admitted presence at Sl8 Victoria Street on the night of March 5,
1990 his evidence is to this effect at about 10'00 p m that
evening Inmate B asked him to deliver a message to his girlfriend
at the Victoria Street address; that Inmate B indicated it was an
urgent matter involving charges against him, and that the Inmate
had no access to a telephone after 9 00 P m However, the grievor
acknowledged that he violated the standing orders of the Sudbury
Jail and the Ministry's Manual in conveying a message from an
inmate He answers Van Allen's statement that he (the griever) I
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refused to take a polygraph test in this way: that Van Allen's
memory is at fault, that he agreed to take a polygraph test but was
advised that the testing technician was unavailable at that time
We think that Van Allen's memory of the polygraph conversation
is probably the correct one; however, that is not to say that the
grievor was deliberately misleading the panel Both sides agree
that there was a conversation about a polygraph test It is not
surprising that recollections would differ as to the gist of a
short conversation more than two years before they were asked to
recollect that conversation The fact is that there was no
polygraph test administered
It is not of some but of considerable importance that at the
hearing the grievor's denial of bringing drugs into the jail went
unchallenged
By the end of the hearing the Ministry's allegations against
the grievor are reduced to two (I ) that he was engaged in
trafficking in narcotics within the jail during the month of March,
1990 and ( 2) that he violated Section H, page 4 of the Sudbury
Jail's Standing Orders (Exhibit 19) which contains the following
prohibition.
(f) Carry or send written or verbal messages to or from
an inmate except under such circumstances as are
necessary in transacting the business of the institution
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Similarly, as part of the second allegation, that he violated
Section A-6, page 4 of the Ministry I s Manual of Standards Clnd
Procedures (Exhibit 20) which reads in its relevant parts
In order to prevent staff members from being accused of
any conflict of interest or possible breaches of
security, staff members are not permitted to enter into
any personal relationship not in the line of duty with
any inmate without first receiving the written approval
of the institutional or branch head
In the case of ex-inmates, their relatives or the
relatives of inmates and their friends. should the staff
member engaging in a personal rela.tionship not in the
line of duty, feel that the relationship could be
construed by others as a conflict of interest or possible
breach of security, the staff membHr must discuss such
situations as soon as they are known to him with the
insti tutional or branch head The institutional or
branch head will be the sole arbiter of what constitutes
a conflict of interest or possible threat to security in
the aforementioned relationships, and will advise the
staff member in writing of his approval, or that the
personal relationship is to be terminated
Staff not conforming to the above may be subject to
disciplinary action
The Employer's case, shortly stated" runs in this way that
the evidence of the two Inmates was the more probable account of
events; that the grievor was not a credible witness, and that the
evidence was sufficient to establish the allegations of .trafficking
in narcotics As to the breach of jail orders and Ministry
regulations, the grievor's admission established, beyond argument,
the alleged breach of trust, and in consequence, the employment
relation had been irreparably damaged so that there should be no
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reinstatement to the position of correctional officer. In support,
Counsel for the Employer cited the following authorities Re The
Crown in Riqht of Ontario {Ministrv of the Attornev-General and
Ontario Public Service Emplovees Union (Khan) (l989), 18 LAC.
(4th) 260 (Swan), Faryna v. Chorny [l952] 2 D.L R 354 (B C C of
A. ) ; OPSEU (Winston Evelvn) and Ministry of Community and Social
Services 0232/87 (Spr ingate) ; OPSEU (Lawrence Ibbotson) and
Ministrv of Correctional Services 175/82 ( Barton) , The Ontario
Divisional Court Judaement in Ibbotson (released January 23, 1984);
Re Government of Nova Scotia (Solicitor General) and Police
Association of Nova Scotia (1990), l3 L A.C (4th) 298 (MacLellan);
OPSEU (Edward Johnston) and Ministry of Correctional Services l4/83
(Verity) ; and Vigneux and Liquor Control Board of Ontario 40/81,
238/81, 264/81 (Draper)
In opposition, the Union contends that there was no sufficient
evidence to support the allegations that the grievor trafficked in
drugs and therefore that the dismissal should be set aside As to
the admitted breach of duty regulations, Counsel for the Union
argued that it could be appropriately dealt with in the form of a
short period of suspension In this connection, Counsel made
reference to the following authorities. Re Madame Vanier
Children's Services and On tar io Public Service Emploveest Union
(l992), 25 L.A C (4th) 242 (Verity) ; and OPSEU (Hvland) and
Ministry of Correctional Services lO62/89 (Ratushny) .
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The panel has not referred to all of the evidence adduced but
sufficiently to indicate the basis of our decision We have,
however, taken into account the whole of the evidence and
submissions of counsel in arriving at our findings.
In a disciplinary matter the Employer bears the onus of proof
The standard of proof required is the civil standard of proof "upon
the balance of probabilities" However, it must be recognized that
the standard of balance of probabilities is not a precise formula
but rather a variable standard Accordingly, the more serious a.rfd
reprehensible the alleged misconduct, the more stringent the
standard of proof required In our view, serious misconduct, as
alleged in this case, must be proved by "clear and convincing"
evidence or, otherwise stated, a standard of "reasonable
probability't In that regard, it is helpful to repeat the
rationale of Mr Justice 0' Leary in Re Bernstein and Colleqe of
Physicians and Surqeons of Ontario (1977), 15 C.R. (2d) 447 (Cnt
Div ct.) where he states at p 470:
The important thing to remember is 1:hat in civil cases the;re
is no precise formula as to the standard of proof required to
establish a fact. In all cases, 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 upon the totality of the circumstances including the
nature and consequences of the fact or facts to be proved, the
seriousness of an allegation made, and the gravity of the
consequences that will flow from thE! particular finding
In the instant matter, we are here concerned with blo
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conflicting versions of the facts and thus the credibility of
witnesses becomes crucial. On the difficult matter of assessing
credibility of witnesses, we are mindful of the guidelines of
OtHalloran J A of the British Columbia Court of Appeal, in Farvna
v. Chornv, supra, where he states at pp 356-8.
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If a trial Judgets finding of credibility is to depend 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 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, ability to describe clearly
what he has seen and heard, as well as other factors, combine
to produce what is called credibility, and cf. Raymond v.
Bosanquet (1919), 50 0 L R 560 at p. 566, 59 S.C.R 452 at p
460, 17 O.W.N 295. A witness by his manner may 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
I the truth I am not referring to the comparatively infrequent
cases in which a witness is caught in a clumsy lie.
I The credibility of interested witnesses, particularly in cases
of conflict of evidence, cannot be gauged solely by the test
of whether the personal 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 trust of the story
of a witness in such a case must be its harmony with the
preponderance of the probabilities which a practical and
informed person would readily recognize as reasonable in that
place and 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 skilful exaggeration with partial
suppression of the truth Again a witness may testify what he I
sincerely believes to be true, but he may be quite honestly
mistaken. For a trial Judge to say ttI believe him because I
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judge him to be telling the truth", is to come to a conclusion
on consideration of only half the problem In truth it m.ay
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 his view is
to command confidence, also stab; 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 satisfi.ed that the trial Judge t s
finding of credibility is based not on one element only to the
exclusion of others, but is based on all the elements by which
it can be tested in the particular case
The evidence against the grievor primarily rests on the
testimony of Inmates A and B. The panE~1 has given careful and
anxious consideration to the testimony of both Inmates. We feel
bound to say that having considered their evidence we are left with
grave reservations as to its credibility
We turn now to the particulars. As to Inmate B's testimony,
on his own evidence he falsified written statements to the police
shortly after his arrest in April 1990 We are left with the
impression that Inmate B was a most unreliable witness
As to the credibility of Inmate A, admittedly he agreed to co-
operate with the police investigation in return for an agreement IJn
the part of the police not to oppose bail on his pending appeal
True it is that the pOlice maintain there was no deal. However,
viewing the arrangement from the Inmate's point Of view, we think
that it can be appropriately described as "a deal" to participate
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in an undercover operation in exchange for no opposition at his
pending bail application.
Testimony born out of these circumstances calls for critical
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examination Inmate A's explanation that he participated in the
undercover operation out of a sense of civic duty to bring law
breakers to justice is not only incompatible with his record but
strains credulity to the breaking point Self-interest may subtly
and not so subtly contaminate memory
As we have seen, Inmate A implicated correctional officer
Cardinal in the alleged drug dealing. In fact, this implication
was unfounded to the degree that no charges were laid by the police
against Cardinal Moreover, Cardinal testified that Inmate A's
story was a complete fabrication Further, Inmate A's alleged
involvement in bringing a gun into the jail does not inspire
confidence
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Generally, the grievor1s evidence is probably the correct
version of what transpired. It is noteworthy that the grievor was
initially taken into custody on March 6 on information that he had
in his possession narcotics for the purposes of trafficking. On
that date, it was made abundantly clear to the grievor by Van Allen
that he was under suspicion and surveillance because of drug
dealing allegations Is it reasonable and likely that in these
circums~ances the grievor would shortly thereafter bring drugs into
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the jail as he is alleged to have done? TO ask the question is to
answer it However, we cannot accept the whole of the story told
by the grievor without some reservation
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A case such as this is not to be decided upon minute
differences in evidence In a hearing some two years after the
impugned conduct, it cannot be hoped that every difference of
testimony will be satisfactorily cleared away This case must be
determined in the context of its broad features with the onus of
proof upon the Employer At the end of the day, the panel feE~ls
constrained to say that we cannot accept the evidence of Inmate A
or Inmate B as to the grievor's alleged participation in drug
dealing within the institution
On the totality of the evidence before us, this panel is not
reasonably satisfied that the grievor brought illicit drugs into
the jail and passed them to Inmate B as alleged. With regard to
the drug dealing allegations against the grievor, this panel is of I
the opinion that the Employer has failed to meet the burden of ,
proof by clear and convincing evidence I
It remains to determine the second primary allegation against I
the grievor On his own admission, the grievor has violated the I
Standing Orders of the jail and the Ministry's Manual ot Standax~ds
and Procedures The cumulative effect of these two documents is to I
prevent personal re.lationships not in the line of duty betwE~en
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staff and inmates, their friends, relatives and acquaintances. On I
its face, the grievor's attendance at 518 Victoria Street at the I
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request of an inmate was a flagrant breach of the trust implicit in
the rules and regulations of both the jail and the Ministry and of
his position as a correctional officer An explanation detailing
urgency and invoking a compassionate response might tend to
mitigate the breach However, we searched the explanation in vain
for such grounds. It is difficult to understand why the grievor
felt compelled to carry a message on behalf of Inmate B to 518
Victoria Street when he knew that his actions constituted
prohibited activity In our view, by attending at that address
without the written authorization of management, the grievor
exercised extremely poor judgment which has compromised his
position as a correctional officer As to the standard expected of
a correctional officer, the rationale of Vice-Chair Beatty in
Eriksen and Ministry of Correctional Services 12/75 merits
repetition where he states at p 29.
. . the Correctional Officer must be expected to exercise
sound judgment and common sense in assessing the
propriety of the meeting. In exercising such judgment
however and given the delicate function performed by the
Correctional Officer such members of the Ministry t s staff
must be advised to be scrupulously vigilant to conduct
themselves in a manner which will ensure that their I
integrity and character is safeguarded, and beyond any
possible reproach, that their own position is not
unwittingly compromised or manipulated and that the
security of the institution is not jeopardized
On all the evidence we find that the Ministry had just cause
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22
to discipline the grievor for carrying an unauthorized verbal
message from an inmate to his girlfriend at a known drug outlet in
the City of Sudbury, contrary to the Standing Orders of the jail
and the Ministry's Manual of Standards and Procedures
Accordingly, the suspension grievance is dismissed. As already
indicated, we view the grievor's misconduct as a serious breach of
the rules and regulations However, we are disposed to agree with
the submissions of counsel for the grievor that dismissal is not
the appropriate penalty. In these particular circumstances, the
grievor's impugned conduct merits a substantial period of
suspension. Accordingly, we exercisl~ our authority under s 19(3)
of the Crown Emplovees Collective Bargainina Act to mitigat~ the
penalty imposed, by reinstating the grievor to the position of a
correctional officer, without pay, but without loss of seniority
We retain jurisdiction in the event of any difficulty
encountered in the implementation of this deci.sion
DATBD at Brantford, Ontario, this 16th day of December t 1992
~~ ---,'-==- ~:::-- ---
~-~.--"- - ~ ,. J:~,
R. ---VUITY,' g:C. -. v}b:CBAIRPERSON
ItI Partially Dissent" (patial dissent to follow)
. . . . . . . .
M LYONS - MEMBER
"I Dissent" (dissent to follow)
. . . . . . . ........ . .
D. CLARK - MEMBER
t:t-.
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G_S.B. 1618/91 I
I
R1\NERVA (OPSm & M:S) I
DISSan
I have read the decision of the Chair and I regret that I must partially
dissent. My dissent is solely with regard to the length of the suspension
that has been i.mtx>sed on the grievor by the Chair I s decision.
The grievor was initially suspended without pay on April 3, 1990 and
subsequently dismissed on April 17, 1990. Although the grievor has been
reinstated to his former position, he will not be canpensated for any loss of
pay between the date of his original suspension and the date of his return to
work Therefore, the grievor has been suspended without pay for a pericd of
approximately 2 3/4 years (33 months) I
The major allegations against the grievor were that he i.rnp:Jrted illicit drugs
into the Sudbury jail and passed them to Inmate B and that the grievor was
trafficking in drugs I totally agree with the Chair that the Employer has
failed to meet the burden of proof with regard to these allegations
Therefore, the grievor should not suffer any F€nalty as a result of these
allegations
With regard to the other major allegation, the grievor admitted that he
violated the Standing Orders of the jail and the Ministry's Manual of I
Standards and Procedures by delivering a message for Inmate B to his I
girlfriend at 518 Victoria St The grievor also admitted he knew this action I
was wrong and that he should not have done what he did
However, under cross examination, Superintendent HODson admitted that had
this been the grievor's only improper conduct, the grievor would not have
been dismissed. While it is clear that Superintendent Hooson regarded the
grievor's violation of the Standing Orders and the Standards and Procedures
as a breach of trust, I am absoutely convinced that the Superintendent did
not see the grievor's breach as 50 severe as to warrant a 2 3/4 year
suspension
I share a concern with the other members of the Board that the grievor was
not entirely forthcaning in his explanation of why he decided to go to 518
victoria St. for Inmate B There 'Were clearly sane inconsistancies in the
grievor's story. However, in spi te of this, I believe the length of the
suspension is far too long.
Given the griever's employment record and penalties that have been imposed in
other cases, I believe a suspension without pay for t\\U months YoQuld have
been appropriate
I
Dated at '1'oronto this 29th day of December 1992.
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D I SSE N T
G S.B #1128/90, 1618191
OPSEU (Kanerva)
and The Crown in Right of Ontario
(Ministry of Correctional Services)
Having carefully reviewed the decision of the Chair in this
case, I must, with respect, dissent.
Based on information provided by Inmate A, drug related
charges were laid against five people, two inmates, a
Sudbury drug dealer and two staff members, one of which was
the grievor, a Correctional Officer. Except for the
grievor, all accused pled guilty at the preliminary hearing
stage The inmate informer testified as a Crown witness a.t
the preliminary hearings of the two inmates and one staff
member but he did not testify at the grievor's preliminary
hearing As a result, all charges against the grievor were
dismissed for want of prosecution at his preliminary hearing
on June 4, 1991-
During the course of this hearing, and in the award itself
(page 19) the reason for Inmate A's involvement in the
undercover operation was questioned While it is true his
explanation that his involvement was to bring law breakers
to justice does strain credibility, the fact still rema~ns
that based on his information, four of the five pled guilty
at the preliminary hearings During his
examination-in-chief, Inmate A stated that he did not
testify against the grievor because " in the first four
cases, the length of sentences were so minimal, why waste a
trial " and "I received direct threats from federal
Correctional Officers if I was to testify against any more
CO's " and " prior to that, I had my life placed in
. . . .
jeopardy by provincial Correctional Officers in the Sault
Ste Marie jail for testifying against Correctionals there".
2/...
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Regardless of his reasons for not testifying against the
grievor at the preliminary hearings, Inmate A had a very
good track record, albeit an unusual one, of being an
informer while in jail. Sergeant Van Allen, during the
course of the investigation, kept in close contact with
Inmate A and made notes of what the inmate told him. The
Sel"geant also provided the inmate with money to purchase
drugs and when Inmate A received what had been purchased, he
would telephone Sergeant Van Allen to say he had taken
delivery and the Sergeant would arrange to receive the
"exhibits" from him and have them analyzed Perhaps a very
striking example of how accurate Inmate A's information was,
oocurred on March 12, 1990 Inmate A telephoned Sergeant
Van Allen that evening to say that drugs would be concealed
in the wastebasket in the visiting area of the jail Upon
investigation, Sergeant Van Allen found almost a 1/4 ounce
of hashish where Inmate A said it would be. Although it was
never determined who brought it in, the significance of the
event was, as Sergeant Van Allen stated, "(Inmate A) told me
it l-las there, he had no access to it, I used it to gauge his
credibility"
On the afternoon of March 5 , 1990, Inmate A reported to
Sergeant Van Allen ~hat Inmate B had informed him that drugs
would be picked up at approximately 11 00 p m that night by
a Correctional Officer. Since Inmate A did not know the
grievor's name at that time, he gave a physical description
of the grievor The Sudbury OPP conducted a surveillance of
the residence on Victoria Street. The grievor, as he was
later identified, visited the residence
The grievor's explanation of why he went to Inmate B's
girlfriend's house, I find totally incredible. The grievor
testified that at about 10 00 P m. on the evening of March
5 , 1990, Inmate B asked him to deliver a message to bis
girlfriend The message was supposed to have been urgent as
it involved charges against him and he had no access to a
telephone after 9 00 p.m This was a violationt and the
grievor knew it was a violation, of the Standing Orders of
the jail and the Ministry's Manual of Standards and
Procedures in conveying a message from an inmate Under
3/...
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cross-examination, the grievor could not offer any
explanation why Inmate B would ask him to deliver a message
to his girlfriend He was adamant about the fact that he
did not treat Inmate B any different than any other inmate.
Why then, would Inmate B pick the grievor to deliver a
message? Furthermore, the grievor stated that " yes, I
knew I'd be in trouble if caught" and " yes, I knew it
would be a breach of security" On re-examination, in
response to Mr. Bevan's question about knowing he would be
in trouble if he delivered a message, the grievor felt he
might receive " perhaps a letter on file, at most a
. .
couple of days suspension without pay". The grievor clearly
had everything to lose and nothing to gain by doing this
"favour" for Inmate B.
Why did the grievor not just phone Inmate B's girlfriend
since he had her phone number? Inmate B could not use the
telephone after 9 00 P m but the grievor could. In
cross-examination when he was asked if he could have phoned
Inmate B's girlfriend, his reply was "I suppose I could
have, that night or the next morning" Once again, why
would the grievor drive to a residence after work to deliver
a message when a phone call would have been easier In my
opinion, the answer lies in what Inmate A told Sergeant Van
Allen earlier that afternoon, i.e. , that drugs were to be
picked up that night by a Correctional Officer.
I have no hesitation whatsoever in agreeing with the finding
on page 18 of the award that Inmate B was a most unreliable
witness. On two very important points, however, the
evidence of Inmate B corroborated the evidence of Inmate A.
Inmate B testified that he and the grievor agreed on a story
that if the grievor got caught at the residence on Victoria
Street he would say that he was just delivering a message to
Inmate B's girlfriend. Sergeant Van Allen found the slip of
paper with Inmate B'g girlfriend's name and phone number
when the grievor's vehicle was searched on March 6, 1990
The grievor testified that Inmate B asked him around 10 00
p. m. , March 5~ 1990 to deliver the message. If this 1S so,
how is it possible for Inmate A to tell Sergeant Van Allen
in the afternoon of the same day that Inmate B had informed
him that the grievor would he picking up the drugs that
night?
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With respect to the second area of agreement between the two
inmates, the March 28, 1990 incident was confirmed by both
of them, although Inmate B could not recall the exact date
According to Inmate A's Statement (Exhibit 3 I page 17) I the
" (grievor) came in and passed (Inmate B) a five grammar
of oil and asked (Inmate B) to roll him a few joints After
I got off the phone, I went to (Inmate B) and asked him for
some of the hash oil and he told me he was going to give me I
half, which he did He poured half into another vial and I
gave me the vial that (the grievor) had passed to him. I
About 15 minutes later, (the grievor) came by and (Inmate B)
passed him six cigarette papers of hash oil I phoned
Sergeant Van Allen to advise him that I had the five grammar
but not to come and get it until the following day due to
too many visitors " In Inmate B's Statement (Exhibit 8,
page 7 ) , he indicated " (The grievor) did give me a
package with a little bit of hash, I'm not sure when it was
Later he had a cold and I handed him a couple of papers with
oil on them and said this will cure your cold " Sergeant
. .
Van Allen testified that he received the half full vile from
Inmate A on March 29, 1990 and it was later verified by
Health and Welfare Canada as containin~ cannabis resin
In conclusion, Inmate A had a proven track record as being
an informant. Based on his information, drug related
charges were laid against five people and four of them pled
guilty His evidence was that he did not testify against
the grievor because the length of the sentences handed out
to the others were so minimal and, as well, he felt his life
was placed in jeopardy Time after time, Inmate A proved to
Sergeant Van Allen that the information he was providing was
reliable On two separate occasions his information about
the allegations against the grievor were verified by Inmate
Bt i e , going to the residence on Victoria Street and the
March 28, 1990 incident Inmate A testified that on four
separate occasions in March 1990, he observed the grievor
pass drugs to Inmate B. Inmate B did verify the March 28th
incident Inmate A was able to give samples to Sergeant Van
Allen that were allegedly passed by the grievor to Inmate B
Exhibits 4, 5 and 6 establish these samples to be cannabis
resin.
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The grievor knowingly violated the Standing Orders and the
Ministry's Manual of Standards and Procedures by associating
with Inmate B's girlfriend. There was no need for him to go
to her house to deliver a message asking her to visit Inmate
B He could have telephoned In fact, Inmate B could have
telephoned her himself the next morning If, however, one
accepts the evidence of Inmate A and the corroborating
evidence of Inmate B, then the grievor's visit to Inmate B's
girlfriend makes sense The grievor, I would submit, based
on all of the evidence, knew and associated with Inmate B
while he was on the "outside". Given this fact, the grievor
would have no hesitation about visiting Inmate B's
girlfriend on March 5, 1990 and it was not to deliver a
message but rather, as Inmate A's evidence indicated, the
grievor was there to pick up drugs for Inmate B.
In my opinion, the Ministry's evidence was sufficient to
establish the allegations of trafficking in narcotics and I
would, accordingly, have dismissed the grievance.
March 30, 1993 A~ ~
Don M Clark