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Home My WebLink About1991-2284.Selkirk.94-11-17.~ ON TARIO EMPLO Y'~S DE LA COURONNE · CROWN EMPLOYEES DEL'ONTARIO GRIEVANCE C,OMMiSSION DE SETI'LEMENT REGLEMENT ~. BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TOF~ONTO, ONTARIO. M5G fZ8 TELEPHONE/T~L~PHONE,. (476) 326- ~358 180, RUE DUNOAS OUEST, BUREAU2100, TORONTO (ONTARIO). M5G 1Z8 FACSIMiLE/T~L~-COPiE : (416) 326-1396 2284/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Selkirk) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: M. Gorsky Vice-Chairperson J. Carruthers Member F. Collict Member FOR THE M. Bevan UNION Counsel Ontario Public Service Employees Union FOR THE J. Benedict EMPLOYER Manager, Staff Relations & Compensation Ministry of Correctional Services HE~RING June 11, 1992 October 8, 1992 November 2, 17, 1992 January 8, 1993 February 5, 24, 1993 March 9, 1993 May 20, 1994 DECISION The Grievor, Russell Selkirk, who at all material times was a Correctional Officer 2 employed by the Employer at the Hamilton Wentworth Detention Centre (the "Centre") filed a grievance on November 5, 1991: I grieve that my suspension from November 2 to November 13, 1991 inclusive is unjust. Mr. Selkirk requested: That the suspension be rescinded, that I receive all monie~.and benefits including interest 0wed, and that any corr~pondenceregarding this incident be removed from my personnel file. The grievance followed the imposition of a penalty of suspension on Mr. Selkirk because of a finding by the Employer: That on or about September 5, 1991 you were negligent in the performance of your duties and failed to follow H.W.D.C. Standing Orders, thereby contributing to the death of an incarcerate, Mr. J. Michas. In a letter dated October 8, 1991 (Exhibit 2C), F.W. Morris, the then Deputy Superintendent of the Centre, notified the Grievor that a meeting was scheduled for Thursday October 17, 1991 at 2:t0 p.m. in the boardroom of the Centre to discuss the above noted allegation. '~" In a letter to the Grievor of October 11, 1991 (Exhibit 2B) Mr. Morris set out: "The specific Standing Orders that [he referred:] to in [his] ~etter dated October 8, 1991" which were said to include the following: 3.2 If the inmate is placed on a suicide watch he will be placed in a Segregation ce]] and all clothing, possessions and flammable materials will be removed from him. He/she will be given a security gown and security blanket. Cell content will be consistent with current segregation policy (i.e. no mattress, etc.). (Refer to Standing Orders re Segregation). 3.3 Suicidal inmates may be placed on a suicide observation watch by the Health Care staff or Shift Supervisor in their absence. However, the inmate must be checked at least every 10 - 15 minutes. 3.3 When the inmate arrives, the segregation officer and the escort officer will complete a strip'search of the inmate prior to securing him/her in the cell. A fresh set of clothin~ will then be issued to the inmate. Polic~ All staff members serve as models of decorum, authority and standards of dress for inmates. As such, staff must maintain standards of conduct and appeaFan~e commensurate with that position. It is imperative that all staff members perform their duties in an efficient and expeditious manner. Your actions, attitudes and mannerisms should be exemplary at all~ times. By letter dated October 30, ~991 (Exhibit 2A) addressed to Mr. Selkirk, Mr, Morris stated: A meeting was held on Thursday, October 17, 1991 at 1430 hours in the Boardroom of the Hamilton-Wentworth Detention Centre to discuss the allegation. "That on September 5, 1991 you were negligent ~n the performance of your duties and failed to follow H.W.D.C. Standing Orders, thereby contributing to the death of an incarcerate, Mr. J. Michas." Present at the meeting were yourself; Mr. P. LaCourse, your employee representative; Mr. C. Boles, an employee representative as an observer; Mr. G. Hogarth, Senior Assistant Superintendent Administration/Services; and myself. Evidence was presented to support the allegation and you and your representatives were qiven an opportunity to refute the allegations and mitigate your~ actions. After careful consideration I have now reached my conclusion regarding this incident. I have concluded that you were not negligent in the performance of your duties thereby contributing to the death of Mr. j. Michas, however, I have concluded that you were negligent in that you did fail to follow a number of Hamilton- Wentworth.Detention Centre Standing Orders and you did not take appropriate action in the handling of a suicidal inmate. I have consulted and deliberated for some time regarding an appropriate sanction under these c'ircumstances and, given the seriousness of this incident, my first consideration was to dismiss you from employment. However, in recognition of your number of years of good service, I have decided that you will be suspended without pay for a period of ten days (eighty hours). The specific dates of the suspension will be the previously scheduled shifts from November 2nd to November 13th, 1991 inclusive. You are further advised that any additional incidents of a similar nature by yourself may result in a more serious disciplinary Pena.lty, including dismissal from employment. The hearing' of this case commenced on May 11, 1992 and continued on October 8, 1992;.November 2, 1992; November 9, 1992; November 17, 1992; January 8, 1993; February 5, 1993; February 24, 1993; March 9, 1993; May 20, 1994. Evidence was adduced at great length and in much detail. Cross-examination was similairly conducted. The way in which the case was presented was consistent with the gravity of the incident which prompted it and the seriousness with which all parties regarded it. The Employer has a vital interest in seeing that its employees work safely. Because 4 of the nature of the inmates at the Centre (a maximum security facility), those who work there must be extremely vigilant and always conduct themselves in an appropriate manner so as to safeguard the physical well-being of themselves, other staff and inmates as well as the property of the Employer, staff and inmates. In his opening statement on behalf of the Grievor, Mr. Bevan stated that the evidence would show that at least seven o~her staff members had had contact with the inmate Michas and that if the Grievor was culpable they were at ]east as culpalble as he was and that it was improper to single out the Grievor for discipline. It was Mr. Bevan's position that the grievor had been made into a "scapegoat." In his opening statement Mr. Bendict responded by stating that other staff had been disciplined as a result .of the incident including a supervisor. In order to do justice to %he lengthy and detailed presentations of the parties, the Board will have to address the evidence and argument in some detail. Unfortunately, this will make for a very long award. This is, regrettably, inevitable as the positions of the parties was so dependent on their views of what actually happened. In addition to the witnesses who testified, many of them submitted'statements at the request of the Employer, and many of them submitted, on at least one occassion, to interviews conducted by Inspector Ryan. Furthermore, statements were taken and interviews were conducted of a number of persons, including inmates,~who did not testify. Copies of the statements and interviews were tendered by the Employer as part of Exhibit 5. Any neglect on our part to render a decision without a detailed analysis of the Often contradictory evidence could~ hardly satify the parties that their positions had been fully reviewed. We also are'oft-the view that providing a full review of the evidence may assist the parties in identifying means of working together to deal with safety related concerns, which are of great importance to them. Although we conclude that the parties, throughout the. incidents to be reviewed, conducted themselves in the utmost good faith, there were a number of problems where communication might be improved to achieve the goals both of them support. The first witness called on behalf of the Employer was Bob Ryan who is an Inspector employed by~th'e Ministry of Correctional Services. Prior to the position that he held at the times relevant to this matter, Inspector Ryan was a senior Assistant Superintendent at the Maplehurst Correctional Centre. Prior to that he was an Operational and Review Analyst and Policy Analyst with the Ministry, which he joined as a Correctional Officer ~in 1970. 6 Some of Inspector Ryan's duties involve investigating incidents at correctional institutions, such as assaults, breaches of security, escapes and suicides. Inspector Ryan testified that he had been appointed to conduct the investigation with respect to the "suicide death of inmate Jean Michas" and filed with ~he board Exhibit 5 which contains a number of documents said to be relevant to the investiRgation. The first document in Exhibit 5 is a memorandum to Mrs. Dina Palozzi, Deputy Minister of Correctional Services from Stan Teggart, Manager, Investigation & Security, of the Ministry, dated October 29, 1991, concerning the occurrence to be investigated. The investigation was said to be requested by' Mr. J. Main, Regional Director (Central), dated September 6, 1991. In the "SUMMARY" found in the noted memorandum, the following is stated: · ~.~' On September 5, 1991, at approximately 2115 hours, inmate Jean Michas was found in segregation cell #9 engulfed in flames. Forensic and physical evidence conclude that the burning death was a suicide. A medical alert was sounded and correctional staff, including two nurses, responded to the scene. Lifesaving efforts were commenced on the inmate, Sterile ABD Pads, Normal Saline and wet towels were applied to the burn areas. Michas was transferred to the Hamilton General Hospital by ambulance at approximately 2145 hours where he was pronounced dead on Saturday, September 7, 1991 at 0234 hours. 7 Mr. Bevan, for the Union, objected to.the board's making any use of the sta%ements of fact contained throughout Exhibit 5 because they represented inadmissible hearsay. The board permitted the document tendered by Mr. Ryan to be filed as Exhibit 5, indictating to the parties that the weight given to any portion of the document wou~d be based on the board's assessment following final argument. We note, however, that the facts contained in the quoted paragraph are not in dispute. Nor is there any dispute with respect to the contents of the second paragraph of the memorandum. As a result of this incident, Mr. J. L. Main, Regional ~ Director, Central Region, requested an investigation by this branch, and Inspector Robert L. Ryan was assigned T. accordingly. The purpose of the investigation was to gather ali the facts surrounding the incident and to prepare a written report, including findings and recommendations where applicable, for review by appropr~iate ministry officials. Pages 2 - 16 inclusive of Inspector Ryan's investigation report of' the incident are found at pages 3 to 17 of Exhibit 5. Inspector Ryan testified that he commenced his investigation on September 6, 1991 and completed it in "late October 1991" and he completed his report in "early Novembar, 1991." Ten witnesses were called as witnesses by the Employer and the only witness called by the Union was the Grievor. There are certain facts contained in Inspector Ryan's report which are not in dispute: 8 1. Mr. Michas was admitted to the Centre on September 4, 1991. Prior to being admitted to the Admit and Discharge ("A&D") Unit, the admitting~nurse, Ms.-~Nancy Bilboe, learned from Mr. Michas that he had been treated at the St. Joseph's Hospital, Hamilton, emergency unit. While there, he had allegedly assaulted another patient as a result of which incident police were contacted. Michas was then arrested, charged and incarcerated at the Centre. On Thursday September 5, 1991, at approximately 0700 hours, health care st'aff were summoned to A&D to attend to apparently self-inflicted injuries of inmate Michas. Michas appeared to have fallen from the bench located in the holding cell in A&D where he had been placed after admission, sustaining lacerations to his chin and forehead. Michas was scheduled to appear in Provincial Court on September 5, 1991 regarding the charges arising out of the incident at the hospital, but, because of his injuries, the court appearance was cancelled and arrangements were made to have him escorted to the hospital for treatment. Michas was dressed in regular jail clothing (refer. red to as "blues") and escorted to the Hamilton General Hospital by two correctional officers. He was returned to the detention centre at approximately 1120 hours, on September 5, 1991 and was placed in a cell in the segregation unit attched to A&D and a suicide watch that he had been placed on when he was first brought to A&D on September 4 was continued~ 9 It was agreed that on being placed in the segregation cell, at approximately 1120 hours on September 5, 1991, Michas was not placed in protective clothing (referred to as "baby dolls"), Some of the conclusions arrived at by Inspector Ryan with respect to the material facts were not the subject of agreement between the parties and would have to be established through the presentation of e~dence, both viva voce and through the proper proof of documents. The conclusions arrived at by Inspector Ryan with respect to certain material facts were that Michas had not~ been properly searched prior to being placed in a segregation cell at the time above noted and that he had not been "placed in a cell that had been properly prepared to hold an inmate on suicide watch." On the basis of information obtained by him, Inspector Ryan concluded that the Grievor, being the correctional officer assigned to the segregation area at the time, who stated that he had pat-frisked but not strip seached Michas prior to placing him in the ceil, had not done so. It was the subject of agreement that Michas had not been strip searched, but tha Union maintained that he had been pat (or frisk) searched upon admission to the segregation area on September 5th. Inspector Ryan also relied on the Medical Observation - Suicide Watch and Beha¥iour ("Suicide Watch") Sheet maintained at the time which provided for observation checks of the inmate subject to the wa%ch to be completed every fifteen minutes. His 10 review of the sheet indicated that there was a time lapse of approximately 28 minutes from 1134 hours to 1202 hours and that the average time lapse from 1134 hours to 2117 hours was approximately 19.5 minutes. An examination of the Suicide' supports those conclusions. Inspector Ryan reported that another inmate, G. Morin, who was housed in a segregation cell (who, on September 12, 1991, gave an interview statementln~ exhibit 5 to the Inspector, but who did not testify) admitted to passing Michas a book of' matches when he (Morin) returned from a court appearance. Morin was said to have stated that when he was waiting for the segregation officer to put him in his ceil, Michas asked him for a light. When the officer (not the Griavor) was not looking, Morin slid a book of "I.G~A." matches under Michas' cell door. Morin was said to have also indicated that the segregation officer had not searched him before locking him in his cell. Although Inspector Ryan noted in his report, in referring to Michas' suicide attempt: "... all staff reacted in a superlative and professional manner to this emergency. Their immediate response was instrumental in sustaining Jean Michas' critical life signs," he also indicated his primary concern arising out of his investigation that staff had not adhered "to current Standing Orders governing the management of suicidal inmates." 11 At p. 4 of his "Findings / Recommendations / Conclusion," Inspector Ryan noted that "the'admitting nurse, Ms. Nan~y Bilboe, was concerned about Michas' safety when he was admitted on Wednesday, September 4, 1991 and arranged to have him put in protective clothing and placed on a suicide / behaviour watch and he was subsequently housed in the A&D area in a ho]ding cell." In noting that Michas was dressed 'in blues (having been changed from baby dolls) when he was escorted to Hamilton General Hospital on September 5, 1991, Inspector Ryan identified the two correctional officers who escorted him as being Paul Ricker and Fred Ridgers~ This statement was not in dispute. When Michas -returned from the hospital to '~A&D, at approximately 1120 hours on September 5th, dressed in blues, C.O. Fred Entwisle, the A&D officer at the time, issued him one package of Vogue tobacco, one package of cigarette papers and one book of "Eddylite" matches. Mr. Entwisle was apparently unaware that Michas was on a suicide watch when he returned from the hospital and had made no enquiries of anyone nor was he informed by anyone about Michas' status. C.O. Ricker escorted Michas to the Health Care Unit of the Centre after he was re-admitted on September 5th, as above noted. He checked with Ms. Susan Scanlen, the Health Care Co-ordinator, who informed him that Michas was to be continued on a suicide watch 12 and be housed in segregation. Ms. Joyce Mason R.N., prepared the Suicide Watch Sheet. The Grievor, the then assigned segregation officer, received Michas from Mr. Ricker at the security door of the ~egregation Unit and received, from Ricker, a Unit Notification Card and some other documents. This statememt was not the subject of disagreement. The Grievor accompanied Michas to c·ell #9 where, according to the Grievor, before placing him in the ceil, he Proceed to pat (or frisk) - seach him, finding tobacco and rolling papers on his person, but no matches. The Grievor was said to have indicated in his statements that he left C,O, Ricker "standin9 at the entrance door to segregation." Thare is a dif~ierence between'Ricker and the Grievor concerning whether the former accompanied the Grievor and Michas to the segregation cell where Michas was placed. In his report, Inspector Ryan indicated that in arriving at his factual conclusions with repect to %he incident, he relied upon a "sworn declaration dated September 6, 1991" made by the Grievor. This declaration is found as part of Exhibit 5. Inspector Ryan was concerned because he found that the "sworn declaration" dated September 13, 1991 of C.O. Ricker (also part of Exhibit 5) indicates that Ricker accompanied the Grievor and Michas to eel] #9, and that the Grievor did not complete a pat/frisk 13 search of Michas as the Grievor was said to have alleged. Inspector Ryan also noted that Ricker stated that he observed, at that time, that Michas had his shoes on when entering the cell, ordered him out of the cell and had him remove them placing them on the right hand side of the cell door. Ricker is said to have "sworn" that he was aware that Michas was on a suicide watch but could not recall mentioning this fact to the Grievor. Ricker was said to have "sworn" that he left the segregation area after having placed Michas' shoes on the right hand side of the door. The Grievor was then said, in his statement, to have reported that he returned to the staff station office in segregatign, where he entered Michas' name in the segregation log book at 1120 hours on September 5th with the remarks, "Michas into cell #9 for medical, suicide and behaviour watch." The Grievor is said to have placed the Unit Notification Card in the cell location binder and the suicide watch sheet on the clipboard designated for cell #9. There was no dispute that Michas was not stripped and dressed in baby dolls by anyone when admitted to segregation, but was allowed to remain in blues. In Inspector Ryan's report, it was stated that the cell in which Michas was placed in segregation was not properly cleaned or searched for contraband prior to his being placed in it. 14 Inspector Ryan relied on an interview that he had conducted with the inmate (Gerald Schuster) who was removed from cell #9 in segregation at 0953 hours on September 5, 1991, who stated that were newspapers, styrofoam cups, two bed sheets and a matress in the cell when he vacated it, It was Inspector Ryan's position that these items had been improperly left in the cell by the Grievor. Reference was made to the response in the Grievor's statement of September 6, 1991, to the.question: "Are you aware of the policy regarding inmates on suicide watch." (sic) : I am not aware on each and every case that when an inmate who is placed on a suicide watch is placed in baby dolls. In the majority of cases the shift supervisor and/or A&D supervisor would give instructions regarding security dress ~baby dolls). I didn't know this inmate before this incident. It would be helpful if instructions for ~nmat~s who are on suicide watch should be clear and specific and not subject to interpretation. Inspector Ryan, in his report, referred to his review of current Standing Orders with.uespect to the centre, and stated that~ he was satisfied that instruction with respect t0 suicidal inmates were' "reasonably clear and unambiguous.'" He also referred to a "directive dated August 15, 1989, posted on a bulletin board in the staff station office regarding cell search procedures," which provided that "all cells in the segregation unit will be searched daily, seven days a week." He also referred to "clear and specific instructions regarding suicidal inmates.., printed in two inch full block letters posted in the staff station office," These 15 instructions are also found in Exhibit 5 (at pp. 34-6), and Inspector Ryan noted that they addressed what a suicidal inmate was allowed to have in his/her ceil: ANY SUICIDE WATCHES ON INMATES IN SEGREGATION READ BELOW CELL CONTENT LIST SUICIDAL NO MATTRESS 1-2 SECURITY BLANKETS 1 SECURITY GOWN 1 CUP SHOES WITHOUT LACES 6 PHOTOGRAPHS "1 MAGAZINE~ SEGREGATION INMATES ARE NOT TO HAVE MATCHES IN CELL AT -ANYTIME Inspector Ryan stated further in his report that he had not found the Grievor's statements to be credible because of the "clarity of instructions, for handling suicidal inmates and considering Mr. Selkirk's 13 years of experience." He found the Grievor to have been negligent in not complying with the Standing Orders which he found to be "clearly stated." Inspector Ryan noted that the suicide watch was continued, with the first entry noted being made by C.O. Daniel McLean, the lunch relief officer, at 1134 hours. Inspector Ryan referred to the entries on the suicide watch sheet as being "generally unremarkable" as there was no apparent unusual behaviour noted by the segregation officer and various other staff. At pp. 7-8 of his Finding / Recommendation / Conclusion, Inspector Ryan stated: The following observation comments are excerpts taken from staff sworn statements who were aware that Michas was on a suicide observation watch on Seotember 5th. These staff were directly involved in observing Michas and therefore considered pertinent to standing orders: 1305.hours: Michael Moccia (RN) "seen by Mr Moccia" examined Michas' sutures and noticed him wearing a blue shirt. Russe]t Selkirk accompanied him and reportedly removed a pair of shoes. 1443 hours: Samuel Swain (OM14), Admit and Discharge/Segregation Unit Manager, did not notice the suicide observation sheet. Inasmuch as he signed the sheet and noticed Michas was not dressed in protective clothing, he did not take appropriate action. 1450 hours: Correctional Officer Rick Meinert, the assigned segregation officer from 1445 hours to 2115 hours, "sitting on bed". When questioned about a suicide watch criteria he could not articulate a clear comprehension of the procedures. 1910 hours: Ms Nancy Bilboe (RN) questioned Michas, asking how was he feeling, he replied "okay". Ms Bilboe conveyed her concerns to Mr. Meinert asking him to keep an eye on him, as Michas was being transferred to Hamilton Psychiatric Hospital the following morning, (SEPTEMBER 6, 1991). Ms Bilboe did not notice "specifically" what Michas was wearing. 2100 hours: Correctional Officer Joseph Harbutt, the assigned segregation officer for the 1900 17 to 0700 hours, observation comments: "appears to be asleep". 2117 hours: "Fire alarm in cell Mr. Ashford and myself found i/m on fire, sounded the alarm". The above excerpts clearly show that staff had an opportunity to take corrective action. However, they failed to respond appropriately, indicating a degree of negligence is evident. Mr. Swain, the unit manager did not take appropriate action, therefore as the unit manager he was also negligent in not taking corrective action. Mr. Harbutt being the exception to the above. Mr. Harbutt reports that he observed Michas lying down covered with a security blanket and he was unable to see how.,he was dressed .... .. Inspector Ryan noted in his findings that Michas was removed by ambulance and transferred to the Hamilton Genera] Hospital at approximately 2145 hours where he was admitted to the emergency intensive care unit, listed in critical condition. Michas was pronounced dead by the attending physician on Saturday September 7, 1991 at approximately 0234 hours. Inspector Ryan noted that his review of the time frames entered on the suicide watch sheet for September 5, 1991 showed a 28 minute time lapse from 1134 hours to 1202 hours and that the average time ]apse between checks from 1134 hours to 2117 hours was approximately 19.5 minutes. He also noted that instructions on the sheet state that checks will be completed in 15 minute intervals. Inspector Ryan referred to an inspection of cell #9 that took place on Saturday, September 7, 1991 under the supervision of the Coroner, Mr. R. Porter where the following items of evidence were 18 removed from the cell: one mattress and cover, one package of Vogue tobacco, one package of Export roiling papers, one book of Big V matches (purported to be the matches that inmate Morin gave to Michas), one book of Eddylite matches (issued to Michas by C.O. Entwisle). Inspector Ryan referred to the fact that his investigation had revealed that the Segregation and A&D Units were oDerated by a staff complement assigned to both units and that the Segregation Officer job was "essentially a one man post". A&D staff are normally rotated through the Segregation Officer position. He also said that when there was a shortage of staff, a "casual officer is usually assigned to this post with backup being provided by regular A&D staff". The following are Inspector Ryan's recommendations and conclusions taken from his Findings / Observations / Conclusion set out in Exhibit 5: RECOMMENDATIONS 1. It is recommended that at the commencement of each shift, the shift supervisor brief correctional staff assigned to the segregation unit more specifically. The shift supervisor and/or the admit and discharge unit manager should provide a detailed critique regarding who is on a suicide observation watch. The emphasis being 'focused on suicide procedures being adhered to and any pertinent information regarding subject's behaviour. 2. It is recommended that the current staffing pattern for the segregation unit be reviewed. This unit has the propensity to be extremely volatile, due to 19 the special needs of the inmates being housed in this area. CONCLUSION There is sufficient evidence to conclude that staff negligence was a contributing factor in the unfortunate death of inmate Jean Michas. A review of Standing Orders reveal that instructions regarding procedures for the management of suicidal inmates were not followed. Evidence shows that Correctional Officer Russell Selkirk, the officer'who placed Michas in his cell was negligent in his duties by not following proper procedures which are clearly outlined in Standing Orders. Evidence also shows that Mr. Samuel Swain, OM14, the A&D/Segregation unit manager, was negligent in not taking corrective action when he observed that Michas was not in protective clothing during a tour of the segregation area. Health care and other correctional staff directly involved in this incident were also negligent in not taking corrective action. However, evidence shows that the degree of their culpability while significant, is somewhat less than that of Messrs. Selk~rk and Swain. Inspector Ryan noted that Michas was not physically examined by any of the health care staff before leaving the medical area. Michael Moccia R.N. examined Michas in his cell at 1305 hours, approximately one hour and 45 minutes later. Inspector Ryan noted that C.O. Daniel McLean relieved the Grievor for. lunch at approximately at 1130 hours on September 5th and completed two tours, noting the Grievor was "lying down" at 1134 hours and "eating lunch" at 1202 hours. Inspector Ryan noted that the first suicide observation check was made by Mr. McLean at 1134 hours, the next one being at 1202 hours, 13 minutes in excess of the required 15 minute checks. 20 During cross-examination InsPector Ryan acknowledged that all staff~are required to check to see that an inmate in segregation on a suicide watch is not permitted to remain ~n blues but is dressed in baby dolls, being a non-flammable garment which cannot be easily torn and which covers the inmate to the knees. He added that it was not difficult to ascertain when an inmate was not wearing baby dolls. The only time when it would not be possible to tell what an inmate was wearing was when he was completely covered. With a single exception, all of the staff who came into contact with Michas at the relevant times would know that he was inappropriately dressed. He also noted that officers required to carry out rounds in Segregation are required to perform a check of inmates to insure that they are properly housed which would include assuring themselves that inmates on a suicide watch were dressed in baby dolls. Inspector Ryan also acknowledged that all staff who performed suicide watch checks had failed to perform .the checks at the required 15 minute intervals. Inspector Ryan also noted that Correctional Officer Ricker had also breached Standing Order 3.3 in that he failed to see that Michas was strip searched when he was escorted from the medical unit to Segregation. 21 Reference was made ~o Exhibit 7, being the portion of the .Standing Orders relating to "personal appearance and deportment - staff" and in particular to a portion of the Order concerning It is imperative that all staff members perform their duties in an efficient and expeditious manner. Inspector Ryan indicated that he did not arrive at the conclusion that this standing order had been breached. Further in cross-examination, Inspector Ryan was referred to Standing Order 2.3, found at p.39 of Exhibit 5: At the commencement of each shift or during relief. Staff assigned to the Segregation Unit will familiarize themselves with the status of each inmate in the Unit and ensure that the necessary requirements pertaining to each inmate are met. It was put to him that both Mr. McLean, who relieved the Grievor during a meal break of C.O, Meinert (who relieved the Grievor at 1500 hours on September .5th) and Mr. Harbutt, who relieved Mr. Meinert at 2100 hours on that date, had also violated the immediately above-noted Standing Order.' Mr. Ryan did not reject the suggestion. Reference was also made in cross-examination to Standing Order S, page 3, paragraph 2.7: Observations of all staff inspecting the Unit will be recorded in the Segregation Log Book and Segregation/Close Confinement Report. The Admitting and Discharge Supervisor will be responsible for completing an inspection of the Unit at least four (4) times per 8 22 hour shift and the Shift Supervisor will ensure that the Unit is inspected by himself/herself at least two (2) times per 12 hour shift. It was put to Inspector Ryan that Sgt. Swain, the A&D Supervisor when the Grievor was the Segregation Officer during the day shift on September 5th, was, on the basis of the entries in the log books in breach of the noted Standing Order because he had not seen to it that the inspection of the unit took.place at least four times. Inspector Ryan also did not disagree with this suggestion that the Shift I/C (Supervisor) Lt. McCucci who relieved at 0600 hours or Shift I/C Lt. Hardwick who relieved at 1800 hours had breached the said Standing Order.~ Further in cross-examination, reference was made to Standing Order S, page 5, paragraph 2.22: Inmates classified to the Segregation Unit will be escorted at all times when out of their cells, regardless of status. It was put to Inspector Ryan that C.O. Meinert, was on duty at 1720 hours on September 5th when inmate Morin'returned from court to the Segregation Unit. It was put to Inspector Ryan that C.O. Meinert could not have escorted Mr. Morin to the Segregation Unit, as required by the immediately above noted Standing Order, as he would have noticed Morin passing a booklet of matches to Michas if he had done so. Inspector Ryan stated that he had not asked C.O. Meinert if he saw an inmate pass a packet of matches to inmate Michas, 23 although he stated that he accepted the truth of Morin's statement. Further in cross-examination, Inspector Ryan was asked about the evidence that he had before him to conclude that Michas had ever been put ~n baby dolls. Reference was made to the statement of Nancy Bilboe, R.N., found at pp. 180-1 of Exhibit 5, where she recounted how Michas was treated by her on September 4, 1991 and where there is no indication that he was ever in protective clothing on September 4 when she met him as a new arrival in A&D. Inspector Ryan suggested that he got the information that Michas was in baby dolls from some other source but could not recall what it was. Inspector Ryan stated that he had no recollection of Ms. Bilboe stating that she had arranged for Michas to be placed in protective clothing nor did he recall anyone else saying that Ms. Bilboe had done so. Later in cross-examination, Inspector Ryan was referred to the statement made by the Griev0r at p. 155 of Exhibit 5, taken from the Grievor's interview by Inspector Ryan on September 6, 1991, and repeated at p. 007 of Exhibit 5 in Inspector Ryan's Finding / Recommendation / Conclusion: ... in the majority of cases the shift supervisor and/or the A&D supervisor would give instructions regarding security or dress (baby dolls). 24 Inspector Ryan was asked if he had carried out any investigation to check out the validity of the Grievor's statement, and responded that he had not done so. Inspector Ryan was directed to the statement made to him by Mr. Swain on September 6, 1991~ and particularly to the statement contained at p. 177 of Exhibit 5: Q. Who issues instructions regarding whether or not inmates on suicide~atch are ~laced in baby dolls? Shift I?C or me. I did not get correspondence, phone call or nothing when other guys arrived at the door. I received no instructions from anyone. The above quotations from Mr. Swain's statement followed other references to a suicide watch, found at pp. 176-7 of Exhibit 5: Q. when did you become aware that Michas was on suicide watch? A. When I did a tour, 1440 hours, of the seg. area. I signed the observation sheet and I didn't notice the suicide warning monitor. The idea of baby dolls didn't click. As noted, Inspector Ryan stated that he had not noted whether there was a practice of having the Shift I/C or the A&D Supervisor issue instructions regarding whether or not inmates on suicide watch are to be placed in protective clothing {baby dolls). Inspector Ryan was directed to the statement that he took from Joyce Forde, R.N. on September 6, 1991, and in particular the following question and answer: 25 Q. When an inmate is deemed to be suicidal, what steps are taken to ~nform the appropriate areas, i.e., . Shift I/C A&D, et cetera? A. Phone shift I/C and seg. is normally called to <sic). Suicide observation sheet is completed and taken to seg., and handed to the seg. officer. There is a po]icy speaking to this. Inspector Ryan was asked, in cross-examination, if anyone at the Health Care Unit had called to inform the Segregation Officer on duty that Michas was on a suicide watch. He replied that he did not know if this was the case and added that at some point a memo from Ms. Scanlen, the Health Care Co-ordinator, would have informed Mr. Swain, the A&D Supervisor that Michas ~as to be on a suicide watch. Inspector Ryan was referred to the segregation list for September 7, 1991, found at p. 148 of Exhibit 5, and particularly to an inmate, Karoline Denmore, under whose name the words "suicide watch" appear. In addition, at the bottom of the sheet there is a notation that inmate Denmore was "suicidal." Mr. Bevan put it to Inspector Ryan that inmate Denmore should have been dressed in baby dolls if this was the expectation in the case of Michas. Mr. Bevan also stated that evidence would be called to show that inmate Denmore was then dressd in regular jail clothing. The segregation list for September 7, 1991, although it identifies inmate Denmore as being on suicide watch shows his 26 status to be that of an inmate on administrative - protective custody. Standing Order S-4.7 on p. 49 of Exhibit 5 indicates that an inmate with this status does not have to wear a security gown. Reference was made to S-4.4 of the Standing Orders at p. 48 of Exhibit 5 where under "medical - suicidal" there is the provision: One mattress [low risk] No mattress [high risk] One security gown [high risk3 Gym clothes [low risk] It was put to Inspector Ryan that a low risk medical-suicidal inmate was entitled to a regular m~ttress and regular clothing. Inspector Ryan was also directed to examine Standing Order E-3.2 found at pp. 58-9 of Exhibit 5: If the inmate is placed on a suicide watch he will be placed in a Segregation cell and all clothing, possessions and flammable materials will be removed from him. He/bhe will be given a security gown and security blanket. Cell content will be consistent with current segregation policy {~.e no mattress, etc.) (Refer to Standing Orders re Segregation). Although both Standing Orders are dated February t, 1990, it was noted that there is an apparent conflict between Standing Order S-4.4 and Standing Order E-3.2. Inspector Ryan indicated that he did not know if inmate Michas had been classed as high or ]ow risk suicidal. He also stated that 27 he did not attempt to find out from management although he later added that he could not recall whether he had done so. Further in cross-examination Inspector Ryan was directed to the "clear and specific instructions regarding.suicidal inmates ... printed in two-inch full block letters and posted in the staff station office," referred to in his Findings et cetera, and he acknowledged that they were not taken from the Standing Orders. Inspector Ryan then had put to him paragraPh numbered 15 of his Findings et cetera found at page 6 thereof and at page 7 of Exhibit 5 which stated: A review of current Standing Orders revealed that instructions for suicidal inmates are reasonably clear and unambiguous. In addition to Standing Orders, there is a directive dated August 15, 1989, posted on a bulletin board in the staff station office regarding cell search procedures. The essence of which specifically directs that "ail cells in the segregation unit shall be searched daily, seven day~ a week." Inspector Ryan stated that in referring to the Standing Orders in paragraph 15 it was his intention to refer to Standing Order 3.2, above referred to and not to any other Standing Order, although he did not explain how it was possible to reconcile the apparently conflicting Standing Orders. Inspector Ryan stated that the incident involved in this case represented the second investigation conducted by him. 28 Sgt. Samuel Swain was the second witness called by the Employer. He was an A&D Supervisor and held the classification of OM-14, having previously served as a Correctional Officer, and had been employ~ by the Ministry for approximately ten years. He stated that there were 12 cells in the segregation area, all intended to hold a single inmate. Five correctional officers are assigned to A&D and the Segregation unit is treated as part of it. One of the correctional officers in the A&D complement is assigned to the Segregation, and worked an eight hour shift at the relevant t'ime. The other A&D correctional officers also worked eight hour shifts. Casual correctional officers could be assigned to A&D for 12 hour shifts. The rest of correctional officers at the centre works on a 12 hour shift schedule. Sgt. Swain indicated that his duties as ~&D Supervisor included supervision of the Segregation unit. Inmates assigned or transferred to the Segregation unit are removed from the general centre population for various reasons, usually as a form of punishment. He stated that the duties and responsibilities of a segregation officer included ensuring that the dispositions or punishments imposed by supervision were followed, monitoring the movements of inmates in the area, arranging for the feeding of 29 inmates, taking telephone requests. He added that the usual number of inmates in the Segregation unit was He stated that inmates arrive at the Segregation unit accompanied by a correctional officer. The security officer is required to strip search the inmate in the presence of the segregation officer. He added that the treatment of an inmate is dependent on the nature of the punishment. He again referred to the strip search of inmates and the removal of their belongings and effects depending on the circumstances. According to the punishment imposed or the status of the inmate, he/she may be permitted to wear blues and may have some property returned to him. He stated that in the case of "suicidal inmates," they had to be stripped, their clothing removed, following which they would be issued baby dolls, a security gown and a security blanket. He referred to p. 143 of Exhibit 5, being a copy of the segregation list for September 6, 1991, which sets out the date that. an inmate arrived at segregation, his/her inmate file number, the name of the inmate, a comment dealing with the basis for the admission, the status of the inmate, the program for the inmate, and whether the inmate was to be given milk. At the bottom of the segregation list form, there is a statement as to the number of inmates, broken down between males 3O and females and an indication of the number of different diets, restrictions on certain classes of inmates, and comments with respect to individual inmatesr such as whether they were on a suicide watch, whether they were to have peer contact and whether they had restricted use of the phone. There is a note on the form, that inmate Michas and another inmate were "suicidal." The original of a segregation list is placed on a clipboard inside the staff station in the Segregation unit, and photocopies are gi~zen to all security staff and members of the medical department. Sgt. Swaim tetified that the notice regarding suicide watches on inmates in Segregation, found at pp. 34-36 of Exhibit 5, which was referred to by Inspector Ryan, containing instructions with respect to the contents allowed in cells of suicidal inmates and the fact that inmates were not to have matches in their'cell at any time, was already posted on a bulliten board inside the staff station in the Segregation unit when he became the supervisor in July of 1991. He stated that the instructions on pages 35 and 36 were followed ~y corrections officers, with the only exceptions being when diiferent instructions were given by the institution psychiatrist or senior staff - the latter being classified as 16 and above. Correctional officers were not permitted to vary the instructions on their own. 31 He referred to a standing order with respect to the procedure for admission of an inmate to the segregation area <SO 3,3 found in section 8 page 7), which provides that an inmate arriving in the Segregation unit will be subjected to a complete strip search by the escort officer and the segregation officer~ prior to securing him/her in the cell and that a fresh set of clothing is to be issued to the inmate. He stated that the strip search requires the removal of all clothing and an examination of the inmate's mouth and his/her rectal area, to insure that there is no prohibited items. He added that the inmate is stripped in the A&D area when he/she returns from court, The nurse examines the inmate to see that there are no prohibited items hidden, and also to note any bruise~ or suspicious marks on him/her. Clothing is issued in accordance with the inmates status. He added that rather than searching the clothing of an inmate who is being returned to the Centre from court, new institutional clothing is issued for security purposes and the inmate is subjected to a strip search in the segregation area. He described the conduct of a frisk or pat search~ which involves a correctional officer running his/her hands along various parts of an inmate's body while he/she is still wearing clothing. Sgt. was referred to his written statement, dated September 6, 1991, found in Exhibit 5 concerning the "attempted suicide of I/M (Michas, Jean)", {pp. 97-101) and stated that the contents were 32 "true." In it, he notes that after inmate Micbas was admitted to Segregation, where the Grievor was the Segregation officer, he (Sgt. Swain), at approximately 1440 hours on September 5, 1991, entered segregation and completed a tour and recalled seeing inmate Michas standing at the cell window "smoking." He also noted that he merely nodded to Michas who nodded back. After this, Sgt. Swain signed the observation sheet. Sgt. Swain also referred to the statement, in question and answer form,.date~ September 6, 1991, of an interview conducted by Inspector Ryan, which is found at pp. t76-7 of Exhibit 5. He stated that the contents of his statement were also true. ID the statement it is noted that Sgt. Swain became aware that inmate Michas was on a suicide watch when he conducted a tour in Segregation at 1440 hours: "I signed the observation sheet and I didn't notice the suicide warming monitor. The idea of baby dolls didn't click." The following extract from the statement was also referred to: Q. Who issues instructions regarding whether or not inmates on suicide watch are placed in baby dolls? A. Shift I/C or me. I did not get correspondence, phone call or nothing when other guys arrived at the door. I received no instructions from anyone. He went on to state that the policy with respect to conduct on a suicide watch was uniformly followed with no exceptions permitted. 33 Sgt. Swain referred to an incident that occurred at about 1120 hours on September 5, 1991, at which time he was on the phone in the A&D clothing room, when Mr. Se!kirk spoke to him from entry door to the Segregation. At that time Sgt. Swain saw inmate Michas standing at the entrance to Segregation dressed in blues accompanied by C.O. Rickets. Mr. Selkirk asked Sgt. Swain if Michas had to be admitted into the Segregation unit. In Mr. Selkirk's view there appeared to be certain logistical problems in admitting Michas. After some discussion with Mr. Selkirk, Sgt. Swain stated that Michas had to be admitted to Segregation because: "We have no choice. We have to take him." Sgt, Swain,,noted that Michas, whose name he claims 'b~ did not know at that time, was dressed in blues, and C.O. Selkirk and Ricker then proceeded into the Segregation unit with Michas. A]though it does not appear in any of his statements, Sgt. Swain testified that in the course of performing a tour in Segregation around 1445 hours on September 5th, he signed the suicide watch sheet that had been placed on a clipboard outside of cell #9 where inmate Michas had been placed. He stated that he had furnished the shift I/C with a briefing of activities in A&D, and after performing other functions left the area at the end of his shift. ~ Sgt. Swain also stated that when he proceeded to cell #9, on his above noted tour of inspection, he did not identify Michas except from the suicide watch sheet and did not respond to the fact that Michas was not dressed in baby'dol]s. He was, in fact, not aware of how Michas was dressed. He did note that Michas was smoking a cigarette at the time, but did not regard this as cause for concern, as cigarettes were to be lit only by corrections officers through the food hatch opening into a cell. At the close of his examination-in-chief, Sgt. Swain acknowledged receiving the discipline as set out in Exhibit 38. In that letter, dated October 30s 1991 a~ signed by Mr. Morris~ the then Deputy Superintendent~ there is a statement that: I have ... concluded that you were negligent in that you failed to effectively supervise oZficers under your direct control by ensuring they fo]lowed Hamilton- Wentworth Detention Centre Standing Orders in the handling of a suicidal inmate. I have consulted and deliberated for some time regarding an appropriate sanction under the circumstances and I wish to make you aware that the standard of review for managers is greater than for those whom they supervise. The penalty imposed was a ten-day (8(3 hours) suspension. I~l cross-examination, Sgt. Swain acknowledged 'that be had not checked the shift I/C log book on September 5th as he should have done. Nor did he get inmate Michas' name when he spoke to Nurse Scanlen. 35 Sgt. Swain was directed to the Shift I/C log book maintained by shift I/C Hardwick on Wednesday September 4, 1991 between 1800 and 060G hours and the entry at 2130 hours: Michas J. housed in holding cell overnight. Stomach pumped prior to arrival and possible O/D .... Assaulted another patient at St. Joe's. Psych history. He acknowledged that he would have seen this entry if he had examined the log book. Sgt. Swain was also directed to the Shift I/C log book sheet for the day shift on Thursday, September 5, 1991, maintained by Lt. Micucci, where it was recorded that Michas had suffered a self- inflicted an injury at 0730 hours. Sgt. Swain said he would have noted this entry if he had read the log as he should have done. He stated that he was only given the Accident and Injury (A&I) report. Sgt. Swain indicated that if he had read the reports he could have told his subordinate officers about the fact that inmate Michas had suffered a self-inflicted injury, had assaulted another patient at the hospital, and had suffered a likely drug overdose. Sgt. Swain stated that he assumed that shift i/C Micucci had briefed the staff at 0645 hours about these matters. He added that he commenced his shift at 0800 hours. He acknowledged that the only way that Mr. Se]kirk would ]<now about the entries relating to inmate Michas would be as a result of 36 a briefing from the shift I/C or from himself or another supervisor, or from another correctional officer on the change of shift or thereabouts. Sgt. Swain agreed that as Mr. Selkirk was assigned to the Segregation unit and as Michas had been placed in an A&D holding cell when admitted on September ~th, it was unlikely that anyoae would have informed Selkirk about that fact. Sgt. Swain also acknowledged that the entry at 0730 hours in the shift I/C log book for September 5, 1991, day shift, did not reflect certain changL~ that had been made by him relating to the handling of inmate Michas, and he acknowledged that the log book is supposed to represent an accurate record of what actually too]< place. Sgt. Swain was also referred to his Occurrence Report {p. 97 of Exhibit 5) where he indicated that at approximately 0750 hours on Setember 5th he entere~ the shift supervisor's office for a briefing on the "overnight happenings" and was informed by Lt. Micucci that inmate Michas had spent the night in one of the A&D ho]ding cells. It was put to Sgt. Swain that he must have known at that time who Michas was. He responded that he could not recall knowing Michas' name on the day of the incident; that he wrote the occurrence report on September 6, 1991 and did not recall that he had been to'ld the name of the inmate at 0750 hours on September 5, 37 1991. He maintained that this was the case, notwithstanding the statement that he made in the occurrence report. In response to further questioning, he agreed that he should not have recorded an inaccurate statement in his report of September 6, 1991. He agreed that he is only supposed to write down what he knew at the time and not what he may have learned later. Sgt. Swain was referred to the statement of Nurse Scanlen made to Inspector Ryan on September !0, 1991, found at pp. 186-8 of Exhibit 5, where she said, at p. 186, that she was aware that inmate Michas had been continued on a suicide watch at approxi~ely 0730 hours on Sep'tember 5, 1991, and where she stated at p. 187, after being asked: "Did you personally advise or discuss with anyone Michas being suicidal? .... I talked to Sam Swain and I said to him that this inmate is on suicide watch. Why don't you have any cells and he said, 'Yeah, I have two.'" In her statement, Nurse Scan]eh added that the appropriate procedure for advising that an inmate is placed on an observation monitor is to notify the "appropriate area" and advise that the inmate was being placed on a suicide watch. She added that the observation sheet was hand delivered. It was put to Sgt. Swain that his statement that he only knew that Michas was suicidal when he saw the appropriate form and Ms. Scanlen's statement were inconsistent. He maintained that Nurse 38 Scanlen had not informed him that Michas was on a suicide watch as she said she did. Further in cross-examination, Sgt. Swain was reminded that he had, during examination-in-chief,.stated that he was not aware who Michas was when he was put into a segregation cell. He was referred to p. 100 of his occurrence report found in Exhibit 5, where he stated that, at approximately 1120 hours he saw Michas "standing at segregation door in blues with escort officer Mr. Rickets." It was also pointed out to him that in his repgrt he referred to the fact that it was necessary to accept inmate Michas in~o the Segregation unit. Sgt. Swain indicated that he could not remember when he was first told who inmate Michas was, but he would have to have known this information when he instructed C.O. Ridgers 'to take Michas to the hospi.tal.early during the day shift on September. 5th. Sgt. Swain was referred to the statement of C.O. Ridgers made on September 13, 1991 to Inspector Ryan. In that statement C.O. Ridgers stated that he first had contact with Michas when he escorted him to the hospital at approximately 0915 hours on September 5th. C.O. Ridgers indicated that he was not aware 'that Michas was suicidal as he was wearing regular jail clothing. 39 Sgt. Swain was referred to C.O. Ridgers' response to the question "What did you do?" when he returned at approximately 1100 hours from the hospital with Michas: Remove hardware [shackles etc.] at document desk. We [C.O.'s Ridgers and Nickers] escorted him to the clothing .~room. I took the radio to central control and carried on with my other duties. I went to third floor for a lunch relief. It was put to Sgt. Swain that Mr. Ridgers would testify that Sgt. Swain was in the clothing room at the time. In Mr. Ridgers' statement, at p. 160, he indicated that he had not been made aware that Michas was suicidal during the time that he was in "contact with [him}." In his answer, C.O. Ridgers stated: "... during the briefing ~ was informed that [Michas] was in St. Joe's Psych and that he had injured himself." Sgt. Swain was also referred to the statement made to Inspector Ryan by C.O. Paul Nicker on' September 13, 1991, where on page 161, Nicker was reported to have stated that when he returned. with Michas from the hospital (p, 162) he took him to medical - c.o. Ridgers having _left to return his radio to Central Control. Michas was said to have sat on a bench outsid~ of Medical and C.O. Nicker spoke to Nurse Scanlen and asked if the inmate was to be housed in segregation and whether.the "suicide watch was still in effect." 4O Sgt. Swain was asked whether his version of' the events was correct or whether the correct version was as stated by C.O.s Ricker and Ridgers. He responded that he instructed Ridgers to take Michas to medical and did not know how he had arrived there. It was put to sgt. Swain that Mr. Ridgers would state that he had no conversation with Sgt. Swain when he took the "hardware" and left the clothing room. If sgt. Swain is correct, then it would appear that C.O. Ridgers disobeyed an order. It was put to Sgt. Swain that an inmate admitted to A&D would be Strip searched and placed in centre clothing, and he agreed that this was the case. It was also put to him that if an inmate, who had already been strip searched and furnished with "jail" clothing on being admitted to A&D, was then being transferred to Segregation there would be no need to issue fresh centre clothing, and he agreed with this suggestion. It was also put to Sgt. Swain that if C.O. Selkirk believed that an inmate was a new arrival into the Segregation unit from A&D it would be unnecessary for him to perform a strip search~ as he would have reason to believe that this had already been done in A&D. Sgt. Swain responded that he agreed with the suggestion. The procedure for dealing with an inmate who is returned to A&D from the hospital under escort was reviewed with Sgt. Swain and he stated that an inmate should be strip searcheded and given new institutional clothing on returning from the hospital because it was more convenient to furnish new clothes "nine out of ten times" than "worry" about searching the "old clothing," He also agreed ... that he would not expect another strip search to be performed if that inmate, upon being brought to A&D, was then transferred to Segregation. Sgt. Swain agreed that the escorting officer responsible for taking an inmate to the hospital was, as a security measure, supposed to strip search that inmate upon return to A&D and furnish him/her with new institutional clothing. He indicated that entrance to segregation was always through A&D, there being no separate door to segregation from the outside. It was put to Sgt. Swain that C.O. Ridgers would testify that he had been instructed to take Michas to the medical unit upon return from the hospital. It was put to Sgt. Swain that as Michas had been taken to the medical unit and then to segregation it would not be expected that C.O. Se]kirk would again have to furnish Michas with new institutional clothing. Sgt. Swain disagreed and stated that as C.O. Selkirk bad been given the responsibility of conducting the suicide watch, he should have conducted a strip search upon Michas being turned over to him and that Michas should then have been placed in baby dolls. It was only if Michas was not on a'suicide watch that it would have been in order for C.O. Selkirk to put him in a Segregation cell without first performing a strip search and placing him in security clothing. It was Sgt. Swain's position that only if Michas was specifically permitted to wear regular 'jail clothing while on a suicide watch, would it be unnecessary to perform a strip search when he was admitted to Segregation. Sgt Swain also stated that if C.O. Selkirk had a genu!n_ belief that even though Michas was on a suicide watch he was permitted to wear regular jail clothing it would be in order for him to put him in a cell in segregation without fi~s't performing a strip search. ~{[ Sgt. Swain acknowledged that over the years that he has worked with C.O. Selkirk he found him to be a competent and efficient correctional officer in A&D and had indicated this to be the case in periodic appraisals that he had perform¢:d. He also noted that Mr. Selkirk kept a detailed log book with respect to his responsibilities in Segregation. Sgt. Swain also acknowledged that the notice found in Exhibit 5, at pp. 34-36, concerning suicide watches with respect to inmates in Segregation could not overrule the Standing Orders. 43 Sgt. Swain'was referred to p. 149 of Exhibit 5, being the segregation list for September 6, 1991 and to the name of Karoline Denmore, where under the inmates name the words "suicide watch" appear; where under comment the word "med." appears; where under status the word "admin." and where under "prog." the word "reg." appears. This is the same entry as appears opposite inmate Michas' name. Mr. Swain was asked whether inmate Denmore was permitted to wear regular jail clothing and answered that he col]id not remember. He added that he thought that inmate Denmore was wearing r~gu!ar jail clothing but he was not certain whether this was at a time when the inmate was on a' suicide watch. He added that he would not be surprised if Denmore was in "blues" when on a suicide watch. He added further that the final decision as to what an inmate can have in a segregation cell and what that inmate may wear is with the institution psychiatrist who can direct that the inmate can wear other than protective clothing and can also direct that the inmate have a regular jail mattress. Be was again asked in cross-examination as to who gave instructions as to whether an inmate on suicide watch was required to wear baby dolls. He replied that such instructions came from the medical department or the Shift I/C. Sgt. Swain was asked, in cross-examination, if a C.O. could leave an inmate in blues if he had not been told that the inmate should be in baby dolls. He answered that any doubt as to what 44 items an inmate in segregation could have or what clothes he/she should wear should be resolved by obtaining direction from the medical department or from a supervisor. He then endeavoured to clarify his' statement by saying that when an inmate was on suicide watch and the O.D. in charge did not know if the status of the inmate was "high or low risk," he should obtain clarification. Sgt. Swain was again directed to the Standing Order section S- 4.4 that is headed .... Medical - Suicidal" which provides "one security gown (high risk) and gym clothes (low risk)." He agreed with the suggestion that a low risk inmate on suicide watch was allowed to wear regular blues and an inmate on suicide watch who- was high risk had to be dressed in baby ~]olls at all times. He again repeated that if the C.O. was not aware of the status of an inmate on suicide, watch, he/she should check with supervision. He was asked if an inmate on suicide watch designated high risk had to be checked every ten minutes. He responded "Something like that." In s.o. Section s, page 11, para. 4.4 there is a provision for a M_dlcal - Suicidal" inmate having one magazine. Sgt Swain stated that an inmate on suicide watch was also permitted to bare a newspaper although this was not stated in the Standing Order. $gt. Swain stated that the situation that prevailed at the time of the incident'before us, where inmates on suicide watch were classified as high or low risk, had led to a certain amount of confusion as to "who gets what." Sgt. Swain was referred to Exhibit 2B, where reference is made to the Standing Orders that the Grievor is supposed to have breached, including sect. ion E, page 28, paragraph 3.2, 'that provides that an inmate on suicide watch is to be placed in a segregation ceil, ail clothing, possessions and flammable materia].s removed from him, and that he be given a security gown. It was put to Sgt. Swain that this Standing Order conflicted with the high/Now risk designation set out in Standing Order Section S, page 11, paragraph 4.4 and the different requirements that apply to inmates having either designation. He did not directly answer the question and stated that he regarded Standing Order 3.2 as being subject to exceptions based on whether the inmate was being treated as high or low risk. It was put to Mr. Swain that if inmate Michas was ]ow risk then there had not been a breach of Standing Order 3,2. He did not respond to the suggestion by either agreeing or disagreeing with it. It was also put to sgt. Swain that if the Grievor had breached Standing Order 3.2 because inmate Michas was classified as high riskr then he was not the only employee guilty of leaving Michas in blues. Specific reference was made to C.O.-Meinert, who relieved 46 the Grievor at 1500 hours on September 5th. It was suggested that C.O. Meinert should also have known the status of each inmate and to check them to see that the Standing Order was adhered to. It was also suggested to Sgt. Swain that if Mr. Selkirk was in violation of the said article, the correctional officers who relieved Selkirk and Meinert during meat breaks would also be guilty of such a violation. Sgt. Swain did not agree with or reject the submission. Sgt. Swain was also referred to the case of C.O. Harbutt~ who relieved in Segregation at approximately 20:21 hours on September 5th, who, it was suggested should also have noted that Michas was in blues contrary to the Standing Orders. Sgt. Swain d~d not respond to the suggestion. Sgt. Swain was also referred to S.O. section S, page 3, paragraph 2.7, which provides,inter alia, that "the Shift Supervisor will ensure that the Unit is inspected by himself/herself at least two (2) times per twelve hour shift." It was put to Sgt. Swain that Shift I/C Micucci had not, according to the segregation log book, followed the noted Standing Order, nor had he., as was required, recorded "in the Segregation Log Book and Segregation/Close Confinement report" his observations for such two inspections. Sgt. Swain testified that while an attempt was made to adhere to the Standing Order, there were times when this could 47 not be done because more urgent matters had to be attended to. He acknowledged that this gloss on the Standing Orders was not foun~ in any other Standing Order but stated that it was evident that if an incident such as a riot occurred, it might not be possible for the Shift I/C to adhere precisely to the terms of S.O. S-2.7. He also acknowledged that Shift I/C Micucci should have seen that inmate Michas was dressed in standard prison clothing and not in protective clothing which would amount to a breach cf the Standing Orders. Reference.was made to Standing Order, Secti©n E, paragraph, 3.2 dealing with the requirement that an inmate placed on suicide watch, in addition to being "placed in a Segregation cell, [have] all clothing, possessions and flammable materials removed from him [and that] [h~e/she would be given a security gown and security blanket land that] [c]e!l content would be consistent with the current segregation policy being no mattress, et cetera," with reference being to "Standing Orders re Segregation." Sgt. Swai~ wes also referred to S.O. Section E, age 28a, paragraph 3.3, which provides that inmates on "suicide observation watch" "must be checked at least every 10-15 minutes." It was put to Sgt. Swain, and he did ~ot deny, that if the Segregation Lo9 Bo~k and Segregation/Close Confinement Report indicated that the maximum 15-minute interval had not been followed there would be a breach of the Stan~inw Order. It was also put to Mr. Swain, and he 48 did not deny the suggestion, that if an incident such as a riot intervened, so that the Standing Orders could not be followed literally, there would be a subsequent entry indicating what had transpired causing the delay. The purpose of making the suggestions to Sgt. swain was to have him agree that other employees, who were not disciplinedr had committed a variety of violations ~f the Standing Orders rel,~ting to inmates in Segregation on a suicide watch, the last references being specifically directed to shift I/C Micucci. Sgt. Swain was directed to the Health Care Observation Sheet with respect to inmate Michas, whict~ indicated a "suicide and behaviour watch,~ showing that a check of Michas was to be made every 15 minutes from an uns~ated time on September 4, 1991[ to 0,700 hours on Sephember 5, 1991. This sheet is ~ound at p. 137 Exhibit 5. It was noted that a significant number of the inspection times exceeded the 15-minute frequency recorded on the observation sheet and that, according to the in~tials opposite the recordings, a number of correctional officers had failed to fol].ow the directions with respect to the conduct of the watch. Sgt. Swain was also directed to the Health Care Observation Sheet found at p. 134 of Exhibit 5. This sheet, with respect to inmate Michas, is shown to be for the period ending at 0700 hours on September 6, 1991. It apparently started on September 5, 1991 49 at 1134 hours. There are numerous examples of the 15-minute frequency directive being ignored by the officers responsible, being the Grievor and C.O. Meinert. In addition, C.O. Harbutt, whose name appears once on the Suicide and Behaviour Watch, at p. 135 of Exhibit 5, signed the sheet at 2100 hours and again at 2117 which amounted to a violation of the 15-minute checking requirement. Sgt. Swain was also referred to the Segregation Log Book, and the excerpt found at p. 119 of Exhibit 5, where there is an indication that C.O. Meinert had not performed l~5-minute suicide checks of inmate Michas, who was on a suicide watch. Sgt. Swain did not respon~ directly, to the suggestion that Meinert had' not coducted the check as required and stated that non-suicidal inmates in Segregation were normally checked at 20-minute int~-evals Sgt. Swain was referred to S.O. Section S, page 7, paragraph 3.3, which requires that an inmate arriving in the Segregation Unit be strip searched, by the Segregation Officer '{in this case the Grievor) and the escort officer (in this case C.O. Rickert). It was put to Sgt. Swain that if the Grievor was in violation of the Standing Order so was C.O. Rickert. "Sgt. Swain did not reject the suggestion. Sgt. Swain was also directed to S.O. S-l, being one of the Standing Orders the Grievor was supposed to have violated, which is 5O set out at Exhibit 7, the relevant portion being: "It ]s imperative that all staff members perform their duties in an efficient and expeditious manner." In response to a question as to which of the Grievor's actions amounted to a violation of the noted Standing Order, Mr. Swain answered that he did not know. We do not draw any conclusion from his response, as in the circumstances, he does not appear to have been part of the process leading up 'to the discipline being imposed on the Grievor, and, in fact, was himself disciplined. The responses to the suggestions put to Sgt. Swain may, however, be of assistance in ascertaining the expectations of correctional office~s by supervisors. Further in cross-examinationr SGt. Swain added to his earlier explanation as to why the provisions of S.O. S-2.7 were sometimes not adhered to. Specific 'r~fetence 'was to the number of inspections that an Admitting and Discharge supervisor ahd a Shift I/C had to condnct during their shiftS. He stated that there was a large workload in A&D and Segregation, and it was not always possible to follow the Standing Order: "A lot of the time We do not have time to do so." He added that sometimes he might be in A&D but not record his presence during a tour. Sgt. Swain acknowledged that if he had, when he was in segregation~ looked closely into inmate Michas' cell he could have seen that he was not wearing protective clothing. On a number of occassions during his giving testfmony he indicated that his 51 observation was limited to seeing Michas' face "framed in the window." He added that. if he had looked closely he could have seen Michas' shoulders and, thereby been aware of what he was wearing. He went on to say that he could not remember seeing Michas' shoulders. Sst. Swain was asked wh~ther he would have placed Michas in "baby dolls" if he had obJerved him wearing "blues." His first response was. that he had the authority to do so. He then went on to say that on the initial intake into Segregation, Michas would have been treated as high risk and placed in a security gown until a differnt order was made by the psyc]~iatrist or by senior staff. He went on to say that as the Supervisor of A&D he took it upon himself, based on his experience during the year, to make decisions as to the kind of clothing an inmate in Segregation on suicid~ watch should wear. We took it that he regarded himself as having the authority to determine whether a suicidal patient would wear regular or protective clothing, and he added that he did .not delegate this. decision to anyone e~se. He did not, however, answer the wuestion as to whether he would have, in the circumstances of this case, placed Michas in protective clothing if he ha~ seen that he was wearing regular jail clothing. At this stage of his cross-examinat~on, Sst Swain acknowledged that he was aware that Michas was on a suicide watch when he (Swain) signed the "suicide sheet." He then went on to state that 52 when he noted that Michas was on a suicide watch he di:~ not "think" to look to see if Michas was "properly dressed." Sgt. Swain indicated that he worked eightP hour shifts from Monday to Friday at the time in question, He stated that he would expect to be advised about an inmate in Segregation on a high risk suicide watch. He referred to briefings that usually took· place and stated that on September 5, 1991 the briefing was interrupted by a phone call informing him that an inmate (Michas as it turned Out) had to be taken to the hospital. 'He said at that time he did not know that the inmate was Michas. sgt. Swain was referred to the Health Care Observation - Suicide and Behaviour Watch Sheet, above referred to, found at p. 137 of Exhibit 5, being for the period September 4, 1991 to 0700 hours on SePtember 5, 1991. He stated that he did not see this sheet, as it had been removed by the time he arrived at work on September 5. He added that he did not see the new Health Care Observation - Suicide and Behaviour Watch Sheet with respect to Michas from 0800 hours, when he arrived at work, to the time that Michas left to go to the hospital. Sgt. Swain was referred to S.O. Section S, page 10, paragrapgh4.4.2, which provides: "Tobacco will be permitted in the cell, however no matches. The officer will issue a light to inmates .requesting same during routine hours. The officer must 53 supervise." Sgt. Swain was referred to the fact that C.O. Meinert did not remain to supervise inmate Michas while he was .smoking. Sgt. Swain responded that notwithstanding the Standing Order it is not feasible to have an officer remain to supervise an inmate while smoking because there were "too many things to do." He added that if there were a number of inmates smoking at the same time, the correctional officer could not supervise ali of them. C.O. Fred Entwisle, who has been employed by the Ministry since June of 1979, was also called by the Ministry, testified that he was working in the A&D area on September 5, 1991, as tNe documentation officer. He identified some of the responsibilities of the documentation officer: admitting inmates into the institution, searching them, making sure their warrants are correct and making sure that an inmate is placed in the correct ho]ding cell in A&D. C.O. Entwisle was referred to a written statement' that he c6mpt'~d dated September 9, 1991 for the Superintendent of the institution with respect to inmate Michas, which statement is found at pp. 103-4 of Exhibit 5, and which statement deals with certain occurrences during Mr. Entwisle's shift on September 5, 1991, which was from 0700 to 1500 hours. He indicated that his sta%ement was accurate. His statement is as follows: Sir. While assigned to A&D on 05.09.91 070D-1500 hr shift. AslD~c officer approx 0710 Nurse J. Joyce came to 54 A&D to check on i/m Michas. Jean #353973766 as he had some head injuries. She took his blood pressure & looked at his eyes and she said that he may have to go to hospital, i changed the i/m into jail cloths as he was covered in blood. Approx 0730 H/Nurse Scanlen. S. came over to clean the i/m's face. Mr. Muccic [sic] was then informed he should go to the hospital, i informed Mr. Muccic [sic] that he was required for crt. At some time Nurse Scanlen said he would be going to 2B medical when returned. At 11:30 (computer time) the i/m retd to A&D He was escorted around to the clothing rm. I informed the escorts that he should be going to 2B and take him to medical, The i/m said he had not been issued his tobacco or matches, t _gave the i/m 1 tobacco 1 papers 1 matches, The i/m was then escorted to medical .... C.O. Entwis!e was also referred to his written intervie~ conducted by Inspector Ryan on September 12, ].991, which is found at pp. 171-2 of Exhibit 5, which he also said was accurate. In it he identified the shift that he worked on September 5, 1991 as being from 0645 hours to 1515 hours. In his viva voce evidence, C.O. Entwisle indicated that when he furnished inmate Michas with blues, Michas was dressed in "baby dolls." He indicated, that there was blood on Michas' clothing and mattress when he saw him in the holding cell early in the shift on September 5, 1991. C.O. Entwisle indicated that throughout the incident he was aware that the inmate he was dealing with was Michas. 55 c.o. Entwisle testified that he observed Michas after he returned from the hospital, in the clothing room at approximately · ' -. 1130 hours. He believed that it was C.O. Fred Ridgers who was accompanying Michas, along with another C.O. whose name he could not. recall. C.O. Entwis]e testified that it was at this point that he to~ C.O. Ridgers and the other C.O. that Michas was to go to the medical wing, and it then that he gave Michas the matches, tobacco and papers referred to. C.O. Entwisle then gave C.O. Ridgers a unit identification card and told him to take Michas to the medical wing. C.O. Entwisle stated that the identity card, which had already been made out, was computer generated and contained information about and a picture of the inmate. He sai~ he had not examined the card. He added that he gave the tobacco, matches and papers to inmate Michas because it was "normal to do so." When he gave 'the tobacco, matches.and papers to Michas he was not sure if the two officers who had been with him were pre~ent. He then added that one of them was there "for sure" but did not remember who the officer was. He attributed his inability to identify the officer to the fact that he (Entwis]e) was busy at the time. He then stated that. he thought that the other officer was C.O. Paul Ricker, although he couldn't be certain of this. 56 In cross-examination, C.O. Entwisle stated that he received a briefing from the shift I/C when he started his shift at 0645 hours on September 5th, but had not been a~vised that Michas was Jn a holding cell and had hurt himself. He said that he was not told anything about Michas. He said that he had been informed, at the briefing, about problems involving inmates that had occurred during the night, but the problems had not occurred in the area that'C.O. Entwisle wa~ responsible for. He added that, given what. had happened to inmate ~ichas, he would have expected 'to have been informed about the situation at the briefing. C.O. Entwisle was shown the suicide watch sheet with respect to Michas from September 4, i991 to 0700 hours on September 5, 1991, found at pp. 137 of Exhibit 5, which contained a reference, at 0610 hours, to the discovery of Michas after he cut himself, C.O Entwisle stated that he had not see~% the suicide watch sheet, adding that he took over his post between 0645 and 0700 hours, depending on how long the morning briefing took. C.O. Entwisle agreed that the suicide watch sheet should have continued until 0715 or 0730 hours on September 5, 1991 -when the nurse came to A&D. We take it from C.O. Entwiste's evidence that 'kf he had looked at the sheet he would have known that inmate Michas was on a suicide watch. He noted that when the nurse came at either 0700 or 0730 on September 5, 1991, she would have provided a new sheet for the next 24 hour period. He acknowledged 57 that a correctional officer would have no authority to stop filling in a suicide watch sheet and that the sheet would have to be filled in until the C.O.'~ were authorized to cease doing so by the psychiatrist or the social services supervisor. He reiterated that he was unaware that Michas was on a suicide watch because no one told him that this was the case. He added that the nurse did not bring a new suicide watch form with her. For reasons that he did not explain, C.O. Entwisle said that he did ~ot assume that Micas was on a suicide watch when he saw him in baby dolls. He said that an inmate could be in baby dolls for a number of reasons having nothing to do with the inmate being on a suicide watch. He gave examples: refusal to wear jail institutional clothin9, the inmate was violent, suspected of being on drugs~ where the inmate had attempted to flush his clothing down the toilet. He added that he had seen inmates on suicide watch w'earing regular jail clothing. He stated that inmates on the ranges, who were on suicide watch, were rarely placed in protective clothing. He stated that inmates on suicide watch in the segregation area, were-' seen to be wearing regular institutional clothing on many occasions. He acknowledged that the placement of inmates on suicide watch as being either high or low risk caused a certain amount of confusion, and said that he an~, to his knowledge, other officers were confused as to which inmates received regular jail clothing and which inmates received protective clothing when on a suicide watch. 58 C.O. Entwisle stated further that an inmate on suicide watch was entitled 'to receive tobacco and paper at the staff station if the inmate requested these items. C.O. Entwisle stated that where an inmate on suicide watch was taken to the medical wing, the nurse who attended to the inmate would furnish the escorting officers with a new suicide watch form to take to the Segregation unit. He stated thah on being taken to Segregation, the Segregation Officer would as]< him for tobacco and papers but no matches, as the Officer has matches or a lighter to light the inmate's cigarettes. He added that no inmate in Segregation is allowed to have his/he'r own matches, irrespective of whether the inmate is on a suicide watch. He said that the reason that he gave Michas matches was because he was unaware that the latter was on a s~icide watch, and because he had been informed that he (Michas) was going to the medical wing. If he had be%n told that Michas was on a suicide watch he would not have give him matches, tobacco and papers, When pressed in cross-examination as to whom he had given the unit identification card to, he replied that he thought it was C,O. Ricker, although he was uncertain if this was the case. He later added that he was not sure whether he had given the card to C.O. Ricker or C.O. Ridgers. 59 During re-examination, C.O. Entwisle stated that the procedures governing suicide watches in the Segregation unit were a "bit confusing sometimes." He stated that there were "quite s few cases where there would be 'two inmates on suicide watch in t~e same cell - one in protective clothing and the other wearing regular jail clothing. One inmate might be allowed to have newspapez-s and magazines and another not. He added that such situatiuns had occurred approximately 20 times in the three years prior to the incident before us. Where he was confused as to which inmate should be in protective clothing he would ask his supervisor why one of the inmates was in blues and the other in baby dolls. C.O. Paul Riel<er was also called to testify~ by the Employer. · ~e has been employed by the Ministry for approximately three and a half years, three of those years being served at the Centre. He testified, that t~e was on the 0900 to 2100 hours shift on September 5, 1991 as a serving 0r supplementary officer. C.O. Ricker was referred 'to the statement 'that he gave on September 13, 1991 to Inspector Ryan, found at pp. 161-3 of Exhibit 5. In it he indicates that he was aware t~at Miehas was on a suicide watch when he escorted the latter to the medical unit after he returned from the hospital in the morning of September 5. He acknowledged that the other escorting officer who accompanied 60 Michas to the hospital was C.O. Ridgers. He also indicated that C.O. Ridgers was the other escorting officer when M]chas was returned to the Centre from. the hospital. He stated that when escorting Michas thgough A&D, after he was returned from the hospital, he heard that Michas was to be placed in 2B. At 'that time C.O. Ridgers left to return certain items, including the restraints that were used on Michas, to another part of the building. C.O. Ricker escorted Michas to the medical unit. At the medical unit C.O. Ricker discussed with the nurse {Susan Scanlen) whether Miehas was to be continued on suicide watch and where he was to be kept. Nurse Scan]eh decided that Michas was to 9o to the Segregation unit and that the suicide watch of Michas was to be continued. C.O. Ricker then escorted Michas to Segregation. C.O. Selkirk was the Segregation Officer at the time and C.O. Ricker testified that he believed that he had informed Selkirk that he had to receive Michas into Segregation. C.O. Ricker 'told C.O. Selkirk that Michas had injured himself earlier and was being returned from the hospital. Se]kirk was then said to have asked Sgt. Swain if he was required to admit Michas to Segregation. Sgt. Swain asked C.O. Ricker if he had proper clearance and authority for Michas to be admitted 'to Segregation. When this was confirmed, according to Ricker, he and Selkirk escorted Michas to cell ~9 in Segregation. C.O. Ric]<er stated that he had brought with him a suicide watch sheet and other documents, the nature of which he could not recall. He handed the suicide watch sheet to C.O. 61 Selkirk and observed him putting it on the staff station desk. He noted that Michas was wearing blues when he was put in his cell. According to Ricker, after Michas entered the cell with his shoes on, he was ordered to come out of the cell by Ricker who then caused the shoes to be removed and left outside the cell. C.O. Ricker noted that it was against the rules for an inmate in Segregation to wear shoes. He noted that A&D had its "own routines" which differed from those that applied in the "rest of the building." C.O. Ricker stated that when he met C.O. Se!kirk at the entrance to Segregation, in addition to giving him the suicide watch sheet he informed him that Michas was being returned from the hospital and that he was on a suicide watch. In his statement, above referred to, in response to a question: "Did you mention to the segregation officer Mr. Selkirk that he [Michas] was suicidal?" No clear response was given: I told him briefly about inmate Michas regarding his dive and we had just returned from the hospital and that he was cleared for segregation by medical. In cross-examination, C.O. Ricker stated that Shift I/C Micucci requested both him and C.O. Ridgers to escort Michas to the hospital, although it was usual for only one officer to do so. This was because of the concern about an inmate who had demonstrated violent behaviour. 62 In cross-examination, C.O. RJcker admitted that unusual happenings that had occurred prior to the incoming staff coming on duty at 0645 hours on September 5th should have been reported to 'them. He acknowledged that he had not written a report about his involvement with Michas and had been ins'tructed not to do so by Inspector Ryan on the 13th of September when he furnished his statement. In cross-examination he stated that after he and C.O. Ridgers had returned with Michas from the hospital they did not strip- search him. When they came to the clock area, C.O. Ridgers left with the restraints used on Michas along with some other items. It is then that he {Ricker) escorted Michas to medical. He did not recall who asked him to take Michas to medical, he only reealled'~that Michas was to go to medical upon return from the hospital. Later, C.O. Ricker stated that he escorted Michas to medical without any specific instructions to do so. He added that it was not clear when an escort's duties "terminated". He elaborated on where he believed Michas was to be "housed."' He identified the place wher~ Michas was to be kept as 2B, which 63 was said to be a "living area" and "not a cell." This was further identified as bein9 a group of nine cells with better access to medical attention. He then identified 2B as being "the medical wing," C.C. Ricker was then directed to an answer that he gave to a question from Inspector Ryan: Q, When you returned with Michas you escorted him to the clothing room area, What did you do with Michas after Mr. Ridgers left to return his radio to central control? A. I took Michas to me~ic~]. He s~t on the bench, I spoke to Susan Scanlen, ! asked if this inmate was to be housed in seg. and whether the suicide watch was still in effect. She said yes, Joyce Mason completed the obse.rva~ion sheet, I then received the documentation and re-escorted him to A&D. I checked with Mr. Swain. C.C. Ricker stated that his above answer and his other answers were ~ondensed ve~s~,ns of what he had actually said to Inspector Ryan, He added that although he read over the "stateme~%t" ~.~ question and answer form given to Inspector Ryan, he did not actually sign it. It was acknowledged on behalf of the Ministry that Inspector Ryan had edited some of the question and answer statements taken by him from various persons but had done so without any intention to mislead, and he regarded the typed statements that he had prepared in reliance on 'the originals as being accurate honetheless. Any editing was with respect to statments made and withdrawn. It was also acknowledged that the statements in question and answer form had not been sworn by those who made them, notwithstanding the indication to that effect in the statements. C.O. Ricker stated that the statement in question and answer form that he actually signed was a "longer, more detaile~]" one. Only part of one of the original question and answer statements was filed with us, although it was not tendered as an exhibit. The matter was not seriously pursued by Mr. Bevan, arid because of that we conclude that not too much can be made out of the above facts. C.O. Ricker stated that the first time he was made aware of the existence of his statement, found at pp. 161-3 of Exhibit 5, was at the coroner's inquest held in June of 1992, where he gave evidence. It appears that the coroner was not made aware of the fact that 'the statement shown to C.O. Ricker was not the original. As noted, we do not make much of the fact that the original statements were not produced. C.O. Ricker clarified his earlier -evidence by saying that the statement that he had reviewed and signed was the original statement, whereas, the statement in 'typed form found in Exhibit 5, was an edited form which he had never seen before June of 1992. At the end of C.O. Ricker's evidence on November 17, 1992, there was an undertaking from Mr. Benedict 'to produce the written 65 statements if they were available. Only one was produced, as above noted. C.O. Ricker was also directed to the second last question at p. 161 of Exhibit 5: "Were you one of the escorting officers who escorted Michas to HGH on Thursday, September 5/ 19917" to which he answered "Yes~ at approximately 0900 hours." He state<] that in thc written version he had first stated "I can't remember,f' This was crossed out and then the words "Yes, at approximately 0900 hours." was written. C.O. Ricker stated that he did not recall saying "I can't ~ .member but then added that he must have said it It appears that the final answer followe~ after Inspector Ryan jogged C.O. Ricker's memory. · C.O, Ricker was then directed to the last question at p. 161 o.f Exhibit 5: "When you returned with Michas you escorted him to the clothing room area. What did you do with Michas after Mr. Ridgers left to return his radio to central control+>.' In the written statement the words. "took him directly back to segregation" were struck out. He stated that he remembered using hhose words which do not appear in the edited statement. C,O. Ricker was asked why certain of his answers in the written statement were struck out and others substituted. He stated that once he realized his involvement in the matter he 66 recalled certain of his actions which were substituted for his earlier statements that were Struck out. By way of example, he stated that when he first said that he took Miehas to segregation he didn't recall that he had taken him to the medical unit first. He remembered this fact when Inspector Ryan produced docu~nents to assist his memory. In clarification of his statement that he had not told C.O. Selkirk that Michas was suicidal, C.O. Ricker stated that he used words to the effect "This is the inmate who took a dive," meaning that Michas had suffered an intentional injury. During cross- examination C.O. Ricker stated that he did not recall telling anyone that Michas was suicidal. C.O. Ricker was directed to S.O. S-3.3, above referred to, that requires the Segregation Officer and the escort officer to complete a stri[o search when the inmate arrives in Se~regation. He acknow]edg[zd that he had not strip searched Michas and that he not been disciplined for not doing so. His explanation was that no one from management, had told him that Michas had to be strip searched 'in the circumstances described. He also acknowledged that he and C.O. Ridgers had escorted Michas from the hospital, that neither of them had strip searched him, and that neither had been disciplined nor spoken to for not doing so. 67 Lt. Leonard Hardwick, was also called by the Employer and testified that he was the Shift i/C in charge of the Centre during the night shift on September 5, 1991. He described his position as being the line manager of operations in charge of the general operations and staffing of the Centre with responsibility for supervising C.O.'s on assigned shifts in the A&O area, Segregation and in the living units, and that he performed this function for the entire institution. He stated that his responsibilities involved all adult male and female inmates, and that he is a member of management. Lt. Hardwick identified an incident report prepared by him on September 6, 1991 at 0215 hours concerning the attempted suicide of inmate Michas, which report is hand written and found at pp. 83~5 of Exhibit 5. He orally confirmed the facts found in the report and testified that he had answered a fire alarm in Segregation d~ring the evenin9 of September 5, 1991. On arrival in SegreoatJ. on he encountered C.O.'s Harbutt and Ashford approaching him with Ashford carrying a fire extinguisher. Lt. Hardwick was informed by · the officers, whom he said were coughing at. the time, that there was a fire i~ a cell in Segregation. In response to a question from Lt. Hardwick, C.O. Ashfotd: stated that an inmate was still in the cell where the fire had occurred. Lt. Hardwick stated that he did not know the name of the inmate. 68 After instructing C.O. Ashford, who was in apparent distress as a result of smoke inhalation, to vacate the area, Lt.. Hardwick then entered the cell and dragged Michas out of the cell. Nurses then took over Michas'treatment. Lt. Hardwick stated that Michas was then dressed in blues and had burnt newspapers over the upper part of his body. Lt. Hardwick also saw a blanket in the cell at the time Michas was removed. Lt. Hardwick sealed the cell door to preserve the evidence at the request of a representative from the Fire Marshall's office. In cross-examination, Lt. Hardwick acknowledged that this was not the first contact he had with Michas. He stated that he had the authority to place an inmate on suicide watch and that the night previous (September 4, 1991) Michas had been put on a suicide watch. Lt. Hardwick agreed with the suggestion put to him that there were times when an inmate on suicide watch would be left in blues, and acknowledged that this situation has been changed by the amendment to the Stan~]ing Orders, but stated, that he did n~t know whether the change was as a result of the Michas incident. Lt. Hardwick acknowledged that there was some confusion in the institution arising out of the different treatment of inmates who 69 were on sucicide watch, arising out of the high/ low risk designation that applied at the time. Lt. Hardwick stated that he worked the night shift from 1800 hours to 0600 hours and was relieved on September 6, 1991 by Mr. Micucci who was then an OM-14 and an Acting Shift I/C. The majority of the C.O.'s on day shift started at 0645 hours .and it was ~r. Micucci's responsibility to brief the day shift as to what had transpired during the night shift, Lt. Hardwick stated that as the sh~ft supervisor it was his practice to give the staff coming on shift when he was-.in charge with i~formation about a]] inmates on suicide watch. He stated that if he had been on days he would have followed this practice with the incoming day shift.. He stated, by way of example, if an inmate had suffered an apparently self=inflicted injury (as Michas did) on September 4 or 5, 1991, he (Hardwick) would have informed the staff about the incident and cautioned them to pay .~ttention to any signs that the behaviour might be repeated. Lt. Hardwick was directed to certain "briefing notes," which he said were written on the back of the roster sheet, which notes are found at p. 153 of Exhibit 5, and which dealt with incidents that had occurred during the night shift commencing on September ~, 1991, when he was the Shift I/C. Among the-items listed was the fo]lowing: "Michas --> sutures --> seg. 'watch'." He stated that he could not remember writing the notes, which he said represented information that should have been passed on to the C.O.'s coming on to the day shift. Later in cross-examination, Mr. Hardwick stated that the above noted item concerning Michas in the briefing notes f heing item had not been ~"ntered unt'ii he came back to work on the evening of September 5, 1991, as the incident apparently happened a.t 0600 hours, after he had gone home at the conclusion of his shift. In response to furth~?.r questioning in cross-examination~ Lt. Hardwick acknowledged that he entered the said note about Michas Because be considered it to be an important matte~r that should be recorded, among other things, for the benefit of staff. He noted · that Lt. Micucci, who did not testify, had not listed the occurrence although it had happened on his shift. He acknowledged that there ~ould have been sufficient time for Lt. Micucci to make the entry during his shift. In response to a question in cross-examination, Lt. Hardwick acknowledged that if he had been in charge at the commencement of the day shift on S,_~ptember 5, 1991, he would have informed the staff that Michas was on a suicide watch as he regarded this as part of his responsibilities. He added that he did not know if he would expect other supervisors to do the same thing. 71 Lt. Hardwick was directed to an excerpt from the Thursday, September 5, 1991 day shift log from 0600 hours, and in particular to an entry at 0?30 hours found at p. 108 of e~hibit 5. There was an entry, apparently made by Mr. Micu¢ci, re~.afding Michas having inflicted an injury upon himself, having been assessed by Ms.Scan]en and "made ready for court. If he returns from court he is to go out for sutures. Mr. Swain to have reports completed." Lt. Hardwick acknowledged that the instructions had been cha~]ged and that Michas did not go to court, but stated that the entry was accurate at the time. Lt. Hardwick was pressed to admit that the change should have been reflected in the log in accordance with }lis earlier evidence that the log should be an accurate reflection of what had taken place during the shift. After making this statement, he added that he did not know if he would hav~ entered in the log boo]< the fact that the instructions had been changed. He did acknowledge, however, that if the inmate referred 'to was being sent to the hospital and not to court, the supervisor would have to know this information in order to sign the necessary transfer papers. He also stated that although one security officer was usually assigned to accompany an inmate to-the hospital, it was not unusual, in circumstances such as existed in this case, to assign two officers for this purpose, and it was unnecessary to reflect this fact in the log book. Lt. Hardwick was asked how it would be known that Michas did not 9° to court, based on the 0730 hours entry in the log book. He 72 answered that the information would have been reported to him by Lt. Micucci relying on the information contained in the briefing sheet indicating that Michas had been sutured and placed in Segregation. He stated that he believed that the information concernin9 Michas had been given to him or to his second in command, Both of whom were present at the eommencemen~ of the night shift at 1800 hours on September 5, 1991. Lt. Hardwick was directed to S.O. S'-2.7, which provides that "the shift supervisor will ensure that the unit is inspected by himself/herself at least two {2) times per 12 hour shift." He acknowledged that there was no qualification to this requirement and if the required inspections had not been carried out the shift supervisor would not be properly performing his/her duties. _.~t. Hardwick was also directed to two paragraphs found in an article in the Spectator (Hamilton) of Saturday, June '20, 1992, being a report of evidence given at a coroner's inquest into ' ' Miehas' death: No clear explanation was offered why Mr. Michas wasn't put into "baby dolls," but the jury heard some of the confusion may have arisen because of the time the jail had low- and high-risk suicide watches, On a low-risk watch an inmate could wear regular jail clothing. Rule changes ended the low-risk classification three or four months ago, Mr. Hardwick said. Lt. Hardwick acknowledged that he had testified at the coroner's inquest ,and did not disagree with the' accuracy of the 73 statements quoted. He added that with the change of the Standing Orders any inmate on suicide watch was required to be in baby dolls and no other form of dress was permitted. He was directed to a further paragraph in the report of his evidence: He also said newspapers aren't on the list of items allowed in the suicide-watch cell. But, he sa.i.~, he has no problem with one being there because he considers a newspaper equivalent to one magazine, which is allowed. Lt. Hardwick said that he had been accurately reported and that he had no problem with his evidence given at the time although he believed that he had referred to a Bible and not a magazine - adding that he had no "trouble with substitution." He regarded it 'to be "OK [for an inmate on suicide watch] to read a newspaper." He stated that when a new inmat'~J arrived in A~D,~ ~ he/she was required to be strip searched, to take a shower, to be placed in "jail blues" and then assigned to an are~_~, in 'the Centre. He stated that an inmate admitted to Segregation was strip searched but not necessarily placed in jail blues - the inmate sometimes being pe~-mitted to wear his own clothes. If the inmate was allowed to wear his own clothes. The officer in charge was expected to perform a "thorough" search for contraband. He described the following scenario: an inmate newly arrived in A&D is strip searched, showered and given jail "blues" and then 74 sent'directly to Segregation. He stated that he would not expect a further strip search or that the inmate be given new "blues" as the inmate had only "walked a few feet" to Segregation. Lt. Hardwick was referred to the notice in bloc]< letters found at pp. 35-6 of Exhibit 5 concerning inmates in Segregation On~a suicide watch and stated that any conflict between the notice and the Standing Orders would be resolved in favour of the Standing Orders. He agreed that S.O. S-4.4 found at p. 48 of Exhibit 5 provided that high- and low-risk inmates who were suicidal would be treated differently, with the high-risk inmate not being entitled to a mattress and being required to wear baby dolls. Lt. Hardwick was asked whether Michas~ when he was on a suicide watch on September 4, 1991, and dressed in baby.dolls, should have been allowed to have a mattress. Instead of answering the question, he replied that when he (Lt. Hardwick) was the Shift !/C on the night shift commencing on September 4, 199!, he was aware when Michas arrived that he had been in a psychiatric wing of the hospital and that he would be going to court in the morning. He said that he placed Michas on a suicide watch because of the circumstances of his arrival and because he (Michas) had come from the psychiatric wing at St. Joseph's Hospital in Hamilton~ He testified that he had placed Michas in baby dolls as he did not want him to be in blues. He added that he ordered that Michas be given a mattress "for compassionate grounds" and did not treat him as high risk. 75 Lt. Hardwick was directed to the Health Care Observation - Suicide Behaviour Watch form found at p. 137 of ExhiBit 5, commencing on September 4, 1991 and acknowledged that he had not authorized the suicide watch and had not authorized its cessation. He added that the suicide watch should have continued until the inmate left A&D at around 0900 hours. He stated that if the suicide watch ended at 0610 hours, after he (Hardwich) had left the Centre, this was not proper procedure and there should, at least, have been a note that Michas should be under constant supervisJ, on in the holding cell. Lt. Hardwick was directed to S.O. S-4.4.2, which provides that a~ inmate on a suicide watch although permit'ted to have tobacco could not have matches and that the supervisin~ officer would issue a lJ.ght to inmates re.~uesting same during routine tours. When referred to the words "the officer must supervise," Lt. Hardwick state~ t~at that meant t~at the office~ must stand outside of the cell and watch while the inmate smoked a cigarette, and that the officer should make sure that the cigarette was out and disposed of before leaving the inmate. He said that the responsibility to supervise smoki~g applied to himself as well as to correctional officers, although he usually designated someone to carry out the supervision. If he furnished a light for an inmate's cigarette, Lt. Hardwick would notify the Segregation officer of that fact. 76 Lt. Hardwick was directed to the "collector report" printout for the period commencing on September 5, 1991 at 19:45 hours, and particularly to the recording at 20:52 hours with respect to Michas in SegreGation cell #9. He acknowledged that the next recordin9 should have been made within 15 minute~, and he further acknowledged that the fire alarm went off at abo~t 2120 and that the last repo~'t on the collector repo~-t was at. 20:52 hours. He was asked if there should have been another recording w~thin 15 mi~utes thereafter. He replied that this was not necessarily the case as there was a staff change at 2100 hours and it would not be expected that the incoming staff would take the clock or perform a physical clock round when personnel was changed. He stated that the incoming staff would inspect the area and make lo~ entries only with respect to changes that had occurred after the changeover. It was common puactice around 2100 hours fo~; the incoming staff to go "up and down the stairs" and just do a visual examination without the clock. He acknowledged that this procedure was not provided for in the Standing Orders, and added that this was an area where the practice differed from that provided for in the Standing Orders. In re-examination, Lt. Hardwick elaborated on the confusion that he had testified about because of the high/low risk designations with respect to inmates on suicide watch. He stated that what an inmate on suicide watch is allowed to have is ]eft to the psychiatrist who made the designation of high or low risk. He 77 stated that there was some confusion as to how a designation was to be made until the psychiatrist has completed an assessment of the inmate. Where there are more than two people on suicide watch it was difficult to keep track of "who gets what" and "what designation each has." He stated that confusion is resolved by indications set out in the original suicide watch sheet showing what articles a suicidal inmate is to have. In response to a question as to what is"done before the psychiatrist designates the inmate as "~fgh or law risk, he stated that the officer on duty should be told how to proceed until a designation is forthcoming. Where an officer was confused, Lt. Hardwick would expect him to obtain directions e~ther from supervision or from medical personnel. Susan Scanlon R.N. was called to testify by the Employer. She was, at all material times, employed hy the Employer as Health Care Coordinator at the Centre, and tes't~fi~d that she supervised seven full-time and two part-time nurses and co-ordinated health care provided to inmates at the Centre by nurses on duty from 0700 hours to 2200 hours." She testified that at 0700 hours on September 5, 1991 she met a nurse upon entering the health care area and was advised that an inmate (no name being mentioned) in A&D had injured his head and m~ght need sutures. No decision was then made as to what to do, and she instructed the nurse to complete distributing medications. 78 Ms. Scanlen then proceeded to A&D to see the inmate who was in cell 3 on a bench dressed in baby dolls. She observed (the time being 0725 hours) that the inmate had a bleeding cut on the right side of his forehead and a smaller cut on the right side of his chin. She then returned to the health unit for dressings and material to stop the flow of blood. She proceeded back to A&D where the inmate was changed from baby dolls into blues and was also "fed" breakfast. She was asked by Lt. Micucci to "patch the inmate up" as he Was scheduled to go to court. She indicated that she would try to stop the flow of blood but if she was unsuccessful he would have to go to the hospital for suturing. She returned to the Health Unit where she received a call that the inmate was bleeding again and she returned with more dressings, at which time the inmate was moved to ceil 2 along with other inmates. Ms. $canlen applied other dressings to the inmate's head and returned to the Health []nit shortly thereafter. She then received another telephone call from A&D and was told that 'the inmate had again removed his dressing, the time being shortly before 0800 hours. Ms. Scanlen stated that X-rays were taken in the Health Unit. on Thursdays as the X-ray technician was in on that day. Sgt. Swain had brought~another inmate (Schuster) in to be X-rayed in the Health Unit and spoke to Ms. Scanlen there requesting information about "an inmate [not named] who was in A&D who was bleeding." Ms. Scanlen informed Sgt. Swain that she was of the opinion that the inmate (although no name was mentioned, there was no suggestion 79 that it was not Michas) was unable to attend court that morning and should be taken to the hospital in order that his head injury could be sutured. She said that Sgt. Swain then called the records department and informed them that inmate Michas would not be going to court that day and requested that the paperwork be completed in order that Michas could be transferred to the hospital to have his · ' head injury sutured. Ms. Scanlon stated that she too]<' the completed pape.~?work which would allow Michas to be transferued to the hospital to the shift I/C's office and informed Lt. Micucci that Michas was to go to the hospital. She stated that she did not see Michas again. In response to a question as to what other conversations she had regarding inmate Michas, Ms. Scanlen replied that later in the morning of September 5, 1991, after 1.1.00 hours, she was in the A&D Unit when Sg~. Swain asked her why the inmate (apparently Michas) required "Segregation." She said that she replied that Miehas should he placed in Segregation, first because of his head injury and second because he was suicidal. She asked SSt. Swain if he had a~y avai.la~le cells in Segregation and he replied that he did. Ms. Scanlon added that Segregation is the first choice for the placement of suicidal inmates. At approximately 1300 hours on September 5, 1991, Ms. Scanlon was passing the Shift I/C's office when the Shift I/C (Lt. MoRse) called to her and asked how Michas was getting on. She replied 8O that she was not then aware that Michas was back in the institution but would make inquiries about his condition. She then returned to the Health unit and asked Mr. M. Moccia,'-~a' registered nurse, to attend at Segregation to check on Michas'.condition. She returned to her office and shortly thereafter Mr. Moccia called her and informed her that Michas was "fine." Ms. Scanlen was referred to her statement in question and answer form given on September 10, 1991 to Inspector Ryan, found at pp. 186-188 of Exhibit 5, and particularly to the following portions: -" Q. What is the procedure for advisin9 the appropriate areas, i.e. Shift I/C/seg., when an inmate is placed on a (sic) observation monitor. A. The nurse would cai] the appropriate area and we would advise them that an inmate is being placed on a suicide watch. The observation sheet is hand delivered. She added that when Michas was sent to the hospital on September 5 he was already on a suicide watch and nothing was done to change his status thereafter. In cross-examination, Ms. Scanlen was referred 'to the following excerpt from p. 186 of her said statement: Q. At what point did you learn that Michas had been placed on suicide watch? A. I knew on the morning of the 5th of September, approximately 0730. Q. Was he high risk or low risk? 81 A. He was suicidal, Apparently no attempt was made to follow up on the answer to ascertain whether Michas was "high risk or low risk." Ms. Scanlen was asked about the difference between high and low risk suicidal inmates and she replied that her personal opinion at the time was that there was no difference and th.~t any inmate on a suicide watch should always be dressed in "baby dolls." She added that she was aware that the Standing Orders .in existence at the time did not say this and that she obeyed the Standing Orders: that is, she would permit a low-risk iumate to wear his/her "own clothes and not baby dolls.!' She then added, in response to a question as to what her expectations were of other staff dealing with patients on suicide .watch, that she would expect them to do what she did, expl-aining that "everyone on suicide watch should be in baby dolls." Further in cross-examination~ she stated that Nurse Bilboe placed Michas on a suicide watch on September 4, 1991, when he was first admitted to the Centre. When questioned further she stated that she was now unsure as to whether Ms. Bi]hoe or Lt. Hardwick had placed Michas on a suicide watch. 82 Ms. Scanlen was referred to the portion of the Segregation Log fo~' 0700 to 1500 hours on September 5, 1994, found at p. 118 of Exhibit 5, which indicated that Mr. Moccia "was in to see John (sic) Michas." She stated that Mr. Moccia did not report that Mr. Michas was still in "blues," at that time. S]~e also stated that staff should have been aware that Michas was then required to be dressed in "baby dolls." Ms. Scanlen was then referred to a portion Of the Segregation Log for September 5, 1991, found at p. 119 of Exhibit 5, and specifically to the entry at 1900 hours "Meds." She indicated that Ms. Bi]hoe was expected to observe each cell aroun~ 1900 honrs when distributing medications. In cross-examination, Ms. Scanlen was directed to the Health Care Observation - Suici~]e and Behaviour Watch form for Michas found at p. 135 of Exhibit 5 (the beginning time is not shown - the end time on the sheet is 0700 hours September 6, 199.1) and to 'the entry at 1910 hours indicating "resting - answers questions appropriately - status ok." She~ indicated that the signature on the form was Ms. Bilboe's. Ms, Scanlen stated that .she was not aware that Ms. Bilboe had told anyone that Michas was in "blues" and not in "baby dolls." Ms. Scanlen was further directed, in cross-examination, to the Health Care Observation - Suicide and Behaviour Watch form for 83 Michas found at p. 187 of Exhibit 5. The form was from September 4, 1991 to 0700 hours on September 5, 1991. Ms. Scanlon stated that it was not necessary to establish a new suicide watch in Michas' case when he returned from the hospital, as the watch continued from the previous night when he was admitted. It was put to Ms. Scanlon in cross-examination that upon admission, Michas was being sent from one area - A&D - to a "new area" - Segregation. She replied 'that Segregation and A&D were treated as "the same area." It was put to her that the Segregation Officer was not in A&D and was req~]ired to stay within the Segregation Unit and might not be aware of what was "going on in another area." Ms. Scanlon replied that she did not know how "they pass on their information," She added that if she thought that Segregation was a different area from A&D she would have notified Segregation that a suicidal patient was being sent there. ~]s. Scanlon agr'eed that at the end of each shift the Suicide - Behaviour Watch form was supposed to be returned to the Health Care Unit until instructions were given to stop the watch, but could not recall seeing the sheet for inmate Michas in the Health Care Unit at ·0700 hours on September 5~ 1991. 84 Ms. Scanlon stated that nurse Joyce Mason issued a new Suicide - Behaviour Watch sheet for inmate Michas when he returned from the Hospital on September 5th. Ms. Scanlon stated that entries in the suicide watch sheet found at p. 137 of Exhibit 5 should have been continued until Miohas left for the hospital. The last entry in the copy before us was at 0610 hours and not when Michas l_ft~ ~ for the hospital. Ms. Scanlon was informed that C.O. Ricker had testified that he spoke to her when he took Michas to the Health Care Unit and asked if Michas was to be placed in Segregation and whether the s~]icide watch was still in effect, and that she responded "yes." Ms. Scanlon said that she did not recall such a conversation and later stated that the conversation could not have taken place. Hs. Scanlon was also informed'~that Sgt. Swain had testified that he had had no conversation with her concerning inmate Michas and that she had not informed h'im that Michas was on a ~uicide watch. Ms. Scanlon stated that such a conversation had, in fact, taken place. Ms. Scanlon testified that as far as she was concerned, there was no question that the inmate she was referring to in her several conversations was Michas. Ms. Scanten was referred to Mr. Entwis!e's evidence that she had stated that when Michas returned from the hospital he would most likely go to the Health Care Unit. She denied making such a statement and added that she was "sure" that she had not Jone so. Mr. F.W. Morris, who was the Deputy Superintend'tent of the Hamilton-Wentworth Detention Centre at. the times relevant to this grievance, testified on behalf of the Employer. He stated that he became the Deputy Superintendent sometime in the summer of 1990, that he was the second in command at the Centre, and that amo~g his responsibilities was the imposition of discipline on staff. He stated that it was his decision to discipline the Grievor in this case, and he referred to the contents of Exhibit 2 as relating to that ~ecis ~on · He described the Centre as being a maximum security facili.ty with the average number of inmates being 346 adult males, 40 adult females a~d 4§ young offenders and approximately 286 staff. The population o.f the institution was made up of persone on remand or serving short sentences. Over the course of a year between 1000 and 1500 inmates were admitted an~ discharged. He stated that. the Standing Orders served the purpose of furnishing directions to staff as to how to handle a variety of situations. He added that the size and complexity of 'the operation at the Centre was such that failure to properly deal with the situations that arose could 86 have a dramatic negative impact on the security and safety inmates and staff. He described the Standing Orders as representing a minimum set of guidelines to ensure that staff would deal with such situations appropriately. He said that all staff were furnished with a copy of the Standing Orders, and they were required to sign a document acknowledging receipt, and were expected to know and adhere to them. He referred to Exhibit 12, being a letter dated September 4, 1984, addressed to al'~""~taff members concerning "Standing Orders." Attached to the Standing Orders is a foreword which wax attached to and formed part of Exhibit 12, paragraph 4 of which stated that: It is not the intention of these Standing Orders to address every situation which may arise: they represent the various parameters of operation an~ should ~e i~terpreted and enforced in a manner reflecting intelligence, common sense and sound judgement. He said that the above quoted provision was necessary because it was not possible to address every situation that might arise. He also referred to paragraph 9 of the foreword to th~ Standing Orders: It is the duty of alt employees to read, understand and practice the Standing Orders. On return to duty from vacation, sickness or days off, employees will acquaint. themselves with newly published Standing Order amendments. He also referred to paragraph 12 of the foreword: Ignorance of Standing Orders and amendments will not be accepted as an excuse. Referring to Exhibit 2B, Mr. Morris stated that this was in response to a letter from the Grievor requesting information as to the specific Standing Orders that he was said to have violated. Exhibit 2B was said by Mr. Morris to have set out four Standing Orders that he had selected as being "most specific to the situation." Mr. Morris explained the reason for promulgating Standing Order section E, page 2B, paragraph 3,2: 3.2 If the inmate is placed on a suicide watch he will be placed in a Segregation cell and all clothing, possessions and flammable materials will be removed from him. He/she will be given a security gown and security blanket. Cell content will be consistent with current segregation policy (i.e. no mattress, etc.}. (Refer to Standing Orders re Segregation). He said that placing an inmate in a security gown would limit the chance of the inmate hanging him/herself. A security blanket was said to serve a similair p~rpose. Also, removing the objects referred to was said to eliminate their being used in a suicide attempt. Mr. Morris also referred to Standing Order section E, page 28a, paragraph 3.3: 3.3 Suicidal inmates may be placed on a suicide observation watch by the Health Care staff or Shift Supervisor in their absence.. However, the inmate must be checked at ]east every 10 - 15 minutes. 88 He said that this Order was intended to ensure that staff would keep a close watch on individuals on suicide watch so as to reduce the opportunity for an inmate to commit suicide. Mr. Morris also referred to Standing Orders section S, page 7, paragraph 3.3: 3,3 When the inmate arrives, the segregation officer and the escort officer will complete a strip search of the inmate prior to securing him/her in the cell. A fresh set of clothing will then be issued ~. to the inmate. This Order was said to have the purpose of reducing the possibi.[ity of the introduction of prohibited items that could assist an inmate to commit suicide. It was also intended to reduce the possibility of such items being used by inmates against staff or other inmates. The change of clothes was intended to ensure that nothing wou.td be hidden in the clothing of the inmate. The strip search was to ensure that items that might be missed by a frisk or pat search would be discovered, Mr. Morris also referred to Standing Order S, page 25, paragraph 1. The portion that he specifically referred to states: It is imperative that all staff members perform their duties in an efficient and expeditious manner. (Exhibit 7), He described this as an "overarching order which states that staff are to be vigilant and use good judgement and make appropriate ~ecisions and if unsure to ask questions." 89 Mr. Morris referred to Exhibit 2A, which recounts the meeting held on ThursdayrOctober 17, 1991 at 1430 hours in the boardroom of the Centre to discuss the allegations against Mr. Selkirk. He said each of the Standing Orders was discussed individually with himself presenting the Employer's position with respect to each of them. The Grievor and those representing him (Mr. C. Boles, an employee representative as an 6bserver, Mr. P. LaCourse, the Grievor's immediate representative) were given an opportunity to respond, to the allegations. Mr. Morris stated that in the case of each violation the information presented by him was based on occurrence reports furnished to the Superintendent 'of the Centre, as well as the copies of the statements in question and answer form given to Inspector Ryan. At that time Mr. Morris did not have a copy of the Inspector's ~eport. In responding to the allegations concerning violation of Standing Order section E, page 28, paragraph 3.2, the Grievor and Mr. LaCourse stated that in their opinion there was some genuine confusion concerning whether an inmate placed on a suicide watch always had to be dressed in baby dolls because other provisions of the Standing Orders appeared to contradict this. They referred to the sections of the Standing Orders indicating that an inmate on a suicide watch could be considered either high or .low risk and that a low risk inmate could wear "gym clothes."" 9O Mr. Morris said that he or Mr. G. Hogarth, Senior Assistant Superintendent Administration/Services, asked the Grievor how he would resolve the matter if there was some confusion as to whether an inmate on suicide watch should be dressed in a security gown. The Grievor was said to have responded that he assumed that Michas was a low-risk inmate on suicide watch because he was not told otherwise. Mr. Morris stated that later in the meeting he showed Mr. Se]kirk the block letter notice concernlng inmates on a security watch posted on the bulletin board inside the segregation office (Exhibit 5, pp. 35-6). The Grievor acknowledged having seen this document but contended that he should only be responsible to follow Standing Orders and not the contents of the document. Mr. Morris said that he then referred to the violation of S.O. section E, page 28a, paragraph 3.3 requiring the 15 minute observation of an inmate on suicide watch. He noted that the Grievor had not complied with this requirement. The Gr~evor agreed but stated that there was a great deal of activity in Segregation at the time that prevented him from making 15 minute checks. He stated that his was not an unusual situation in Segregation and affected all Segregation Officers. In referring the Grievor to the provisions of Standing Order section S, p. 7, para. 3.3, Mr. Morris pointed out that he had 91 acknowledged to Inspector Ryan that he. had not strip searched Michas prior to placing him in a Segregation cell. The Grievor explained that he had not done so because he believed that Mic~a~ had come immediately from A&D to Segregation and not from the the medical unit as he later discovered to be the case. The Grievor was said to have stated that it was common practice in Segregation to strip search an inmate coming to Segregation from any area other than A&D. When an inmate came to Segregation directly from A&D, the practice was to conduct a frisk or pat search because it was assumed that the inmate would already have been strip searched in A&D.' Mr. Morris referred Mr. Selkirk to the statement given to Inspector Ryan by C.O. Ricker, who stated that he had observed the Grievor place Michas in a Seg-regation cell without a search of any kind. Mr. Selkirk was said to have denied that this was the case and stated that he could not recall C.O. Ricker being present when Michas was placed in a Segregation cell although he' recalled that Ricker was the escorting officer. When Mr. Morris dealt with the provisions of S.O. section S, p. 25, p~ra. 1, Mr. LaCourse was said to have stated that Mr. Seikirk had always shown himself to be a competent officer and followed Standing Orders and gave examples of past occasion when Mr. Selkirk had exhibited effective and expeditious behaviour. 92 In describing the matters considered by him in arriving at the decision to suspend the Grievor without pay for 80 hours, Mr. Morris stated that he reviewed each of the violations. The violation of Standing Order section E, p. 28, para. 3.2 was reviewed with supervisors who informed him that unless authorized by the institution psychiatrist, inmates placed in Segregation on a suicide watch would be dressed in baby dolls. He also reviewed with supervisors the provisions of Standing Order section E, p. 28a, para. 3,3 concerning the "ten to 15 minute" cheeks as well as the procedure with respect to strip searches as found in Standing Order section S, p. 7, para. 3.3. He also reviewed the contradictory statements of the Grievor and C.O. Ricker as well as the provisions of Standing Order section S. p. 25, para 1. He considered the information received and concluded that the Grievor, if he was unsure about what a Standing Order required him to do, should have consulted with supervision, and concluded that the Grievor had violated each of the four Standing Orders referred to. Mr. Morris said that while all of the breaches were important, he was especially concerned with the violation of the provisions of Standing Order section E, p. 28a, para. 3.3. 93 In arriving at his decision, Mr. Morris said that -he differentiated between the negl'igent behaviour of the Grievor in failing to carry out the requirements of the Standing Orders referred to and his actions as possibly contributing to the death of Michas. He concluded that Mr. Selkirk did not believe that Michas was "about to commit suicide." He regarded the situation as being different from one where Mr. Selkirk knew or ought to have known that a suicide attempt was "imminent and highly likely to occur." This difference was one of the factors that caused Mr. Morris to impose a lesser penalty. Mr. Morris also consulted with Mr. M. Villeneuve, Superintendent of the Centre, as well as with Barry Thomas the Personnel Administrator concerning the appropriate penalty. They weighed the serious consequences of the Grievor's failure to follow the Standing. Orders and the fact that' he had not accepted responsibility for his actions and showed no remorse. They also considered the Grievor's previous good work record and acceptable appraisals, and it was decided that a 10 day suspension would be appropriate in all of the circumstances. Also taken into consideration was the fact that Sr. Swain, the manager in charge of A&D and the Segregation area, and an OM-14, was given a ten day suspension for his negligent behaviour. 94 He added that in normal circumstances the standard 'of behaviour expected of management personnel was higher than that for members of the bargaining unit. In the circumstances of this case, however, it was concluded that as Sgt. Swain was only in the area briefly and had been candid and forthright during his disciplinary interview, it was appropriate that both he and the Grievor be suspended for a ten day period. Mr. Morris stated that disciplinary interviews were conducted with a number of other correctional officers and with two nurses. He referred to the disciplinary interview of Mike Moccia R.N., in whose case no penalty was imposed because of Moccia's explanation that when he was in the Segregation Unit to treat Michas he was under the impression that the inmate had just returned from the hospital and was about to be changed into a security gown. Mr. Morris regarded the explanation as being plausible and because nurses, although they were expected to report violations of the Standing Orders, were not responsible to dress inmates in appropriate clothing. Reference was also made to the disciplinary interview of Nancy Bilboe R.N. who visited Segregation when dispensing medications and of C.O. Harbutt, who made checks on th~ Segregation Unit after Ms. Bilboe had performed the late medication rounds. Ms. Bilboe and C.O. Harbutt stated that they saw Michas covered to the neck by a security blanket and were not in a position to realize that he was 95 inappropriately dressed. Mr. Morris accepted the explanations and no discipline was imposed. He also referred to a disciplinary interview with Daniel McLean, an unclassified C.O., who completed the first check of Michas after the Grievor had placed him in his cell and later relieved the Grievor during a meal break. Mr. Morris regarded the situation of Mr. Mclean as being similar to that of C.O. Meinert, as both of them were unclassified correctional officers working on contract. Arguments put forward by the Union representatives were that it was unrealistic to expect inexperienced unclassified officers to "change procedures put in place for experienced CO2's, especially when Mr. Swain had been through the area at 1443 hours and had not changed anything." Mr. Morris stated that he was also impressed with the arguments presented by C.O. Meinert's representative concerning the confusing aspects of the Standing Orders relating to inmates on a suicide watch. Mr. Morris stated that he concluded that th~ arguments in the case of the unclassified officers were reasonable and decided not to impose discipline in their cases. In cross-examination, Mr. Morris explained that when he referred to the lack of remorse on the part of the Grievor he was not referring to the Grievor's being unaffected by Michas' suicide. Rather, he was referring to the fact that the Grievor showed no remorse over the fact that he had breached the Standin9 Orders. 96 Mr. Morris stated that in order for him to consider reducing the penalty to be imposed on the Grievor he expect him to have accepted at least part of the blame for his failure to adhere to S~anding Orders and accept some responsibility for what occurred. Mr. Morris stated that he also took a negative view of what he regarded as the Grievor's attempt to rely on. "technical" arguments to support his actions. He agreed that the Grievor took responsibility for not making the required 15 minute rounds during the suicide watch and furnished an explanation for not doing so and agreed that this amounted to an acceptance of partial responsibility. As above noted, reference was alos made to C,O. Meinert who relieved the Grievor around 1500 hours and ]eft around 2100 hours when he, in turn, was relieved by C.O. Harbutt. Mr. Morris was asked whether he thought Mr. Meinert had violated any of the Standing Orders. He responded that he could not recall "precisely" whether he was of this view. It was put to Mr. Morris that C.O. Meinert had allowed Michas to remain in regular jail clothing when this was in violation of the Standing Orders. He acknowledged that Mr. Meinert should not have permitted this situation to exist and should have required that Michas change into security clothing. After having been referred to the Health Care Observation - Suicide and Behaviour Watch with respect to inmate Michas, found at p. 134 of Exhibit 5, for the period extending to 0700 hours 97 SePtember 6, 1991, Mr. Morris acknowledged that C.O. Meinert was-in violation of the Standing Order requiring 15 minute security checks of suicidal patients. (Section E, p. 28a, para. 3.3) When referred to section E, p. 28, para. 3.2, regarding placing an inmate on suicide watch in a security gown with a security blanket (also dealing with cell contents and placement in a Segregation cell), Mr. Morris stated that he only regarded C.O. Meinert to have committed a technical breach of the Standing Order and not to have breached the Standing Order "in spirit." He stated that he regarded the Standing Order as dealing with the obligation of a person responsible for placing the inmate in the Segregation cell (Selkirk), who had the primary responsibility to adhere to the Order. Mr. Morris stated that, on a balance of probabilities, he accepted as accurate the statement that inmate G. Morin had passed matches to inmate Michas under the cell door. He also agreed that the Standing Orders with respect to inmates in Segregation should have applied to inmate Morin who was in Segregation prior to and after the suicide attempt. Mr. Morris was referred to the Segregation log for part of September 5, 1991, found at p, 119 of Exhibit 5, where there is'an entry at 1720 hours noting that inmate Morin had returned to Segregation, which entry was made by C.O. Meinert. Mr. Morris 98 indicated that he could not recall having seen this entry or being aware of the facts underlying it. Mr. Morris was asked if this was the only time that inmate Morin had been out of his cell at a time when inmate Michas was in his cell in Segregation. Mr. Morris stated that he did not know if this was the case but assumed that the entries were true and that Mr. Morin was accompanied by C.O. Meinert at the times reflected in the Segregation log. It was suggested to Mr. Morris that C.O. Meinert was guilty of not keeping a proper lookout with respect to inmate Morin which failure enabled Morin to slip the matches under the cell door into Michas' cell, Mr. Morris stated that he did not investigate this aspect of the case. He also indicated that he had not interviewed inmate Morin about the incident and only knew of the facts as a result of his review of inmate Morin's written statement, found in Exhibit 5 at pp. i89-190. In inmate Morin's statement, apparently referring to his return to Segregation with officer Meinert, he stated in answer to the question: i When you returne~ from court (sic) placed in segregation - briefly describe what took place. A. When I was waiting for the officer to open my cell this guy Michas asked me for a light. I slid him a book of matches under his door. There (sic) were either IGA of purplish (sic). Q. Did you give Michas some matches? A. Yes. Q. Were you searched by the segregation officer prior to being placed in the cell? A. No. Q. Did you have matches on you when you were placed in the cell? A. Yes, I had some in my cell. When asked whether he regarded C.O. Meinert as having violated the Standing Orders, Mr. Morris replied that he differentiated between "fairly new and experienced officers." He was asked again whether he regarded Meinert as having broken the Standing Orders and replisd that "there was no black and white answer" and that while C.O. Meinert "certainly could have done better," he (Mr. Morris) found it difficult to give a specific answer to the question. He maintained his position that he would assess the actions of an inexperienced contract employee differently [han those of an experienced correctional officer. Mr. Morris was then directed to that portion of Exhibit 12 comprising the foreword to the Standing Orders, and in particular paragraph 12 which states: "Ignorance of Standing Orders and amendments will not be accepted as an excuse." He was asked if the words meant what ~they said, and he replied tha~ they did. He agreed that there was nothing in the Standing Orders that furnish an excuse for an unclassified, inexperienced C.O. if he/she did not adhere' t·o the requirements of the Standing Orders. He also stated that he expected that al/ staff would abide by and know the 100 Standing Orders. He acknowledged that inexperienced, and classified C.O.'s were given training in the Standing Orders and added that the amount of training in handling suicidal inmates was increased and the training improved since the time of the incident before us. Mr. Morris stated that he concluded that this area of the Standing Orders required "more attention." Mr. Morris added that it would be improper for C.O.'s Meinert and Mclean to fail to follow the Standing Orders just because a senior C.O. or a manager "screwed up.". Exhibit 13, being a letter to Mr. Meinert from Mr. Morris, dated October 28, 1991, was presented to Mr. Morris: A meeting was held on Thursday, October 17, 1991 at 0900 hours in the Boardroom of H.W.D.C. to discuss the allegation: "That on or about September 5, 1991 you were negligent in the performance of your duties and failed to follow H.W.D.C. Standing Orders, thereby contributing to the death of an incarcerate, Mr. J. Michas." At this meeting were yourself; Mr. P. LaCourse, your employee representative; M.r. C. Boles, an employee representative as an observer; Mr. G. Hogarth, Senior Assistant Superintendent Administration/Services; and myself. After careful consideration'of the information supplied at the meeting, I have determined that the allegation is not supported and find you free from wrong doing in this matter. I would, however, remind you of the necessity to review the Standing Orders and be thoroughly familiar with their contents. You are also advised that at any time you become aware of inconsistencies or have concerns, you bring these to the attention of your supervisor. This is 101 especially imperative in those cases where safety -or security is involved. There will be no record of these meetings placed on your personnel file. After reviewin9 the letter, he testified that his finding that C.O. Meinert "free from wrongdoing in this matter" was, perhaps, "an overstatement." It was put to Mr. Morris that C.O. Meinert was guilty of three of-'the four violations attributed to the Grievor. He responded that the first violation attributed to the Grievor did not apply "technically" to C.O. Meinert; the second did; the third was not applicable, and as far as the fourth was concerned, C.O. Meinert was "guilty to a minor degree." He added that C.O. Meinert was remiss in not observing inmate Morin when he slipped matches into Michas' cell. Mr. Morris did not disagree that C.O. McLean, who relieved the Grievor for meal breaks, according to the Segregation log book, was in violation of the requirement with respect to the..carrying out 15 ~.minute checks of Michas. Mr. Morris also did not disagree with the suggestion that C.O. McLean had broken the Standing Orders in that he did not take corrective action when he noted or ~hould have noted that Michas was not in proper dress as a high risk suicidal inmate. 102 He repeated his earlier evidence that he regarded it -as unreasonable to expect inexperienced C.O.'s such as Meinert and McLean to rectify a situation that had been created by an experienced C.O,, "endorsed" by an operational manager. He stated that at the time he made his decision it seemed to him to be a fair one in the circumstances. Mr. Morris was pressed to change his position when it was pointed out to him that C.O. McLean made his first two entries 28 minutes apart, being close to double the time that was provided for in the Standing Orders. It was put to Mr. Morris that, at that time, neither the Grievor nor Mr. Swain had made any prior entries in the log book and he was asked how he could conclude that C.O. McLean was merely following the example of C.O. Se/kirk. Mr. Morris stated that he could not explain his decision at this time although at the time he made it he was of the view that Meinert was merely following a pattern established by the Grievor. He stated that he arrived at his initial conclusion when the situation was elaborated upon by Mr. LaCourse. It was further p~t to Mr. Morris that a CO2 such as Mr. Setkirk could not be considered to be. a "superior officer" to an unclassified CO1 such as either C.O. Meinert or C.O. McLean. Mr. Morris did not directly respond to the question but merely stated that they performed similar funct~°ns and that normally an 103 inexperienced C.O.1 would obtain guidance from a C.O.2, although the C.O.2 was not a "mainline supervisor." It was put to Mr. Morris that, given the nature of Segregation, it seemed unusual to have two.inexperienced officers, such as Meinert and McLean, assigned to work there. Mr. Morris stated that that procedure had been implemented prior to his assuming his position and acknowledged that it was difficult for him to explain why such a situation, was permitted to occur. Mr. Morris was asked why he had not done something about the problem in Segregation where inexperienced unclassified correctional officers were stationed. He responded that the operational area in Segregation was not under his supervision and this was the reason why he had not taken any action to deal with the problem. He described the chain of command as through the Operations Manager to Senior Assistant, Corrections to the Superintendent, which chain "excluded" him. He adde~ that although his position is above that of the Senio~'~ssistan~, Corrections, he is not in the direct line of reporting as it would relate to staffing Segregation with inexperienced contract correctional officers. When pressed further in cross-examination as to why he would have not tried to correct a problem that he noted even though it was in a different supervisory chain of command, Mr. Morris stated 104 that while he knew that unclassified officers worked in the Segregation area, he was not "really" aware that this had created a problem, although this "eventually" turned out to be the case. He acknowledged that Segregation was a very "sensitive" area for unclassified employees to be working. Mr. Morris stated that if more experienced officers had replaced Mr. Selkirk in Segregation at the relevant times, then they would "perhaps" have "rectified the situation." In cross-examination, Mr. Morris was asked whether C.O.'s Meinert and McLean had stated, in their defense, that they were unaware that an inmate on suicide watch was supposed to be dressed in baby dolls. Mr. Morris answered that he could not recall the specifics of their argument which, he sai~, was presented in a fairly general way by those representing them. Mr. Morris was asked whether c.O.'s Meinert and McLean, if they were stationed in Segregation "tomorrow" would "do the same thing." Mr. Morris, who is no longer a't the Centre, stated that he gave directions to improve training in the area of dealing with suicidal inmates but could not "swear" that that training had been given to Meinert and McLean, as he has been away from the institution for some time. 105 Mr. Morris was referred to p. 134 of Exhibit 5, being an entry in the Segregation log on September 6, 1991, by Nurse Moccia who had seen Michas at 1305 hours, some two hours after he had been returned from the hospital. Mr. Morris stated~ that Nurse Moccia had violated the Standing Orders by failing to report that Michas was in blues not in baby dolls at the time° Nurse Moccia was not disciplined because he had said that he assumed that C.O. Selkirk would immediately change inmate Michas into a security 9own. Mr. Morris stated that this was only one of the reasons for not disciplining Nurse Moccia, but did not indicate what the other reasons were. He then added that Michas was under the direct supervision of C.O. Selkirk and Nurse Moccia was only there to perform a specific function. Mr. Morris stated that he would have preferred Nurse Moccia to have taken some corrective action by reporting the fact that Michas was wearing blues and agreed, when pressed, that Moccia should have done so. Mr. Morris, when pressed, acknowledged that Moccia .was guilty of a violation of the Standing Orders by permitting Michas to remain in baby dolls. However, he regarded this to be a technical violation and not a Violation of the "spirit," as the Standing Order referred to placing the inmate in baby dolls and this was C.O. Selkirk's obligation. Mr. Morris acknowledged that a nurse such as Mr. Moccia was expected to know the Standing Orders and abide by them. 106 It was put to Mr. Morris that Mr. Moccia signed the suicide watch sheet at a time when inmate Michas was in Segregation for at least one and one half hours. Mr. Morris stated that at the time of the disciplinary meeting he did not notice this fact and acknowledged that if he had been aware of it then Mr. Moccia's explanation would have been weakened. Mr. Morris acknowledged that he was aware that Michas had been admitted to the Centre on September 4, 1991, and that a suicide watch had been commenced at 2120 hours, at which time a different staff was in charge. Reference was made to the Health Care Observation - Suicide and Behaviour 'Watch found at po 137 of Exhibit 5. This watch commenced at 2120 hours on September 4, 1991. It was brought to Mr. Morris' attention that all of the entries were for periods of over the 15 minute provided for in the Standing Orders, He was asked why the experienced C.O.'s who had apparently violated the Standing Orders were not disciplined. Mr. Morris responded that the occurrence reports given to him "concentrated" on the later incident and he did not speak to any of the people involved in maintaining the suicide watch sheet referred to. He also stated that he only saw the noted suicide watch sheet sometime after he had imposed the discipline in this case. Mr, Morris was asked why he had not waited to impose discipline until he had received the report of Inspector Ryan. He replied that it was common practice not to wait for an Inspector's 107 report because of the frequent delay in obtaining a "complete written package." He therefore based his conclusions on the information then avait~bie, which h6'~%b~l'ieved'' was sufficient "to Rake action." Mr. Morris stated he was the person to decide the amount of information he required to make a decision in an individual case. He stated that he asked for "some information" from the Inspector and from operational managers. He regarded himself as having received the "vast majority of the information presented." It was suggested to Mr. Morris that there was something of a rush to judgement, as th~ ~emorandum to the Deputy Minister found at p. 1 of Exhibit 5 is dated October 29, 1991 and the disciplinary letter to the Grievor (Exhibit 2A) is dated october 30, 199i, and it appears that Mr. Morris had not read Inspector. Ryan's report prior to imposing discipline. Mr. Morris' response was that he did not "have the complete package" when he made his decision and did not recall when he received the report. Mr. Morris was asked why he ~did not take action against the officers who had failed to maintain a proper suicide watch when the suicide watch was commenced on September 4, 1991. He responded · that he could not explain why he had not done so. 108 Mr. Morris was asked why C.O. Ricker was not regarded as having violated S.O. S p. 7 para. 3.3, because, as the escorting officer, he, as well as the Segregation Officer (Selkirk) should have completed a strip search of Michas prior to securing Michas in a Segregation cell. He replied if Mr. Selkirk's statement was accepted, then Ricker was not present when Selkirk placed Michas in a Segregation cell. He added that, at the time, Ricker was a fairly junior officer compared to the Grievor, and that there was an onus on the Grievor, as the experienced receiving officer to see that the strip search was carried out. He also stated that it took two to three years service as a correctional officer for a C.O. to be considered experienced, and that there was a considerable difference in his expectations of a one year and a nine year correctional officer. He added that "perhaps in retrospect Ricker should have been disciplined as well." (It was put to Mr. Morris that Mr. Ricker had one year, four months experience as a classified employee at the time of the incident.) It was put to Mr. Morris that C.O. Entwiste had given Michas, who was then on a suicide watch matches, tobacco and paper, and he was asked to comment on this action. He did not answer the question but stated that he had not spoken to Entwisle about the incident. He agreed that Michas should never had been given matches in the circumstances. He also agreed that Mr. Entwisle was, at the time, "very experienced." He also agreed that when Entwisle gave Michas the matches, Michas was dressed in blues. Mr. 109 Morris acknowledged that no discipline had been imposed on C~0. Entwiste. Mr. Morris acknowledged that when Entwisle first saw Michas wearing baby dolls he changed him out of baby dolls and into blues. Mr. Morris added that Entwisle "perhaps" should have made further inquiries. Mr. Morris was referred to p. 145 of Exhibit 5, being a computer printout obtained by an officer passing by a cell and running a wand over the metal. This was referred to as the Deister System. He was referred to the entry at 2052 hours, relating ~o Segregation cell #9. It was put to Mr. Morris that the fire occurred at 2115 hours and that there should have been at ]east "one or two rounds between 2052 and the time of the fire." Reference wasmade to p. 95, being the Occurrence Report indicating that the fire alarm was activated at 2119 hours. It was observed that there was a 27 minute gap between 2052 hours and 2119 hours. Even if the clock was off by one minute, this would still be outside the 15 minute period provided for in the Standing Orders. It~' was put to Mr. Morris that if proper clock rounds had been maintained it is possible that someone might have seen Michas preparing to commit suicide. It was also put to Mr. Morris that a clock round would, if properly conducted, have been carried out around 2110 hours. Mr. Morris did not reject the suggestions made 110 to him, He also added that there was no discipline imposed on the person who was supposed to have made the noted elock rounds. Mr. Morris stated that C.O. Harbutt had seen Michas covered from the neck down, and therefore would not be aware that he was not dressed in baby dolls. It was for this reason that no discipline was imposed. (Harbutt took over from Meinert at around 2100 hours.) Mr. Morris rejected the suggestion that Mr. Harbutt, upon taking over from Mr, Meinert, should have done a check of what Miehas was wearing at the time, He said that this was not expected if Michas was covered from the neck down. Mr. Morris was directed to Standing Order S, p. 2, para. 2.3: At the commencement of each shift or during relief periods staff assigned to the Segregation Unit will familiarize themselves with the status of each inmate in the Unit and ensure that the necessary requirements pertaining to each inmate are met. It was put to Mr. Morris that this Standing Order required that Mr. Harbutt, at the commencement of his shift, ensure that the requirements relating to inmate Michas be met: that he be d~ssed in ~ab¥ dolls etc. Mr. Morris then stated that C.O. Harbutt had not complied "in total" with the requirements of the noted Standing Order. 111 Mr. Morris was asked whether he had interviewed any management staff about the incident; for example Lt. Hardwick'who was an OM-16 and Lt. McCucci (who was an OM-14 (acting OM-16)). He replied that he could not recall whether he had done so, although he believed that he had spoken briefly to Lt. Hardwick, but could not recall what was said during the conversation. Mr. Morris was referred to Standing Order section S, p. 3, para. 2.7, which requires shift supervisors to inspect Segregation at least two times per 12 hour shift. Lt. Hardwick was on the evening shift and Lt. Micucci on the day shift, and it was agreed that they should have carried out this requirement. It was acknowledged that there was no evidence from pp. 117-19 of the Segregation Log of Lt. McCucci or Lt. Hardwick having signed the Log as required to do so by the Standing Order. Mr. Morris was asked if their failure to do so amounted to a violation of the Standing Order. He answered, in the case of Lt.. McCucci, that he believed that he had been in the Segregation area at least once as he was involved in the move of Michas to the hospital, although he acknowledged that it was possible that he might not have gone to Segregation at the time. He acknowledged that it was a violation not to comply with Standing Order 2.7, and that Lt. McCucci had not been disciplined for failing to adhere to that Standing Order. He also acknowledged that an experienced officer such as Lt. McCucci would have changed 112 Michas into baby dolls and prevented the incident if he had observed Michas wearing blues. Mr. Morris was directed to the Segregation Log for September 5, 1991, commencing at 1431 hours. He agreed that the entry at 1450 hours indicated that Meinert had relieved Selkirk at that time. He also agreed that neither Lt. Micucci nor Lt. Hardwick had signed the log at any time, and that when Michas came back from the hospital only Sgt. Swain, of all the management personnel, did a tour of Segregation. Mr. Morris was. asked if such a tour was expected of them. He stated that it was a requirement in the case of Lt. McCucci. He then added that the death occurred on Lt. Hardwick's shift and there was time for him to make two checks. Mr. Morris was asked why he had not looked at the Segregation Log to see if Lt. Micucci had made the rounds as required by the Standing Order. He answered that he could not recall why he had not checked the Log. He added~ that Lt, McCucci had not been disciplined because he (Mr. Morris) ha~ not checked the Log, which would have disclosed a failure to observe the Standing Order. He explained his actions by stating that he was concentrating on other matters at the time. He could not ~specify any reason why Lt. McCucci should not have performed two'tours during his eight hour shift. He added that he recalled that McCcucci had, in fact, been in direct contact with Michas, even if this was not recorded, and therefore he did not "pursue the matter." Mr. Morris stated that when Lt. McCucci briefed the day shift he should have told the correctional officers about the happenings as they related to Michas. He added that this should be done if McCucci was aware that Michas was suicidal and had "hit_his head," It was put to Mr. Morris that Sgt. Swain had testified that Lt. Micucci had not mentioned who the suicidal inmate in the holding cell was. Mr. Morris responded tha~'h'e would have expected Micucci to do so. When referred to the notice in block letters relating to suicidal inmates found at p. 34 ff. of Exhibit '5, Mr. Morris stated that they were not intended to overrule the Standing Orders but "could be a clarification." He was not able to state with certainty the origin of the notice. He stated that he thought it had been '.'typed out" by two previous A&D supervisors (McGinnis and/or Farkas). It was noted that the notice concerning the cell contents for a suicidal inmate requires that he/she receive a security gown, and there is no reference to an inmate being able to wear any other kind of clothing. Mr. Morris stated that the reference in the Standing Orders to low risk suicidal inmates being able to wear 114 other than security clothing did not, in his view, conflict with the contents of the notice commencing at p. 34 of Exhibit 5. Mr, Morris was referred to the Standing Orders found at p. 48 of Exhibit 5, being section S, p. 11, para 4.4, which differentiates between higH~and low risk inmates, indicating that a suicidal inmate who was high risk should be placed in a security gown. It was put to him that it followed that a low risk suicidal inmate would get "blues." Mr. Morris did not directly answer the question but stated that he could not recall an incident where a suicidal patient wore "gym clothes." He said that 99 per cent of inmates on suicide watch wore security gowns unless otherwise authorized by the Centre psychiatrist.: He added that there was a practice, in the absence of gym clothes, for inmates to wear blues. He then added that in the case of a ]OW risk inmate the practice was for the inmate to wear blues. He said the practice was for only low risk suicidal inmates to be given a mattress. He stated that all suicidal inmates on a suicide watch should be dressed in baby ~olls "initially." This could be altered by a psychiatrist or other medical doctor. Mr. Morris stated that Lt. Hardwick told him that inmate Michas had, "for compassionate reasons," been given a mattress on the evening he was admitted, and because he was not designated "high risk." 115 Mr. Morris was again asked why Lt. Hardwick had permitted Michas to have a mattress when he was on suicide watch. ~e replied that giving a high risk inmate a mattress was contrary to the Standin~ Orders, but this was not the case for low risk inmates. It was put to Mr. Morris that as Lt. Hardwick had not designated Michas as high risk, he (Michas) was low risk. Mr. Morris answered that Mr. Hardwick could make his own "modification." Reference was made to the Standing Order section E, p. 28a, para 3.3 which provides that the health care staff or shift .supervisor in the absence of health care staff can place an inmate on suicide observation. Mr. Morris was pressed to admit that if Lt. Hardwick had not designated Michas high risk then he must have been regarded as low risk. Mr. Morris responded that as far as he knew Lt. Hardwick had not designated Michas either high or low risk. Mr. Morris then stated that as far as he was concerned it did not matter whether Lt. Hardwick had designated Michas high risk. In the absence of any designation, Michas should not have been treated as other than a high risk inmate. Mr. Morris stated that only a psychiatrist could change designation from high risk to low risk and that it now appeared that Lt. Hardwick, without authorization, may have chosen to do this on his own. He added that Lt. Hardwick was not discipli'ned for d~i~g so, and also that he should not have. given Michas a mattress. It was put to Mr. Morris that Lt. Hardwick had told him that he was confused about ~he high-low risk designation. Mr. Morris 116 stated that he did not agree with this submission "entirely." He added that he had no confusion concerning the high-low risk designation and disagreed with a suggestion that suicidal inmates were permitted to remain in jail blues until an order was given to place them in baby dolls. It was put to Mr. Morris that C.O. Harbutt had not performed rounds after 2052 hours, based on the entries in the relevant Segregation Log. It was noted that there should have been another round at the latest, around 2110 hours. It was put to Mr. Morris that Lt. Hardwick had testified that this action was acceptable as Mr, Harbutt had taken over from Mr. Meinert around 2100 hours. Reference was made to the entry in the Segregation Log of September 5, 1991 found at p. 120 of Exhibit 5 "accompanied C.O. Harbutt on tour and count and relieved by same of duties and keys." The entry was made by Mr. Setkirko This would have meant that Mr. Harbutt took over from Mr. Selkirk in the Segregation Unit. Lt. Hardwick had stated that it was unnecessary for C.O. Harbutt to have made an entry in the log at 2110 as the inmates had been checked at that time. Mr. Morris stated that in his opinion this was not a correct view of C.O. Harbutt's responsibilities. Mr. Morris referred to the Deister computer system of recording rounds and performing a check every 15 minutes. He stated that the Deister system was a better method of recording 117 security checks and he acknowledged that Mr. Harbutt should have been performin9 the 15 minute security checks. Mr. Morris was informed that Lt. Hardwick said that it was in order not to use the wand, being part of the Deister system. He responded that if the "figures" shown in the Segregation log entries were accurate, then the 2110 hours entry was beyond the 15 minutes allowed for the next check. Mr. Morris was directed to Exhibit 14, being Standing Order Section C, p. 63 paras. 1 and 2 relating to Clock Rounds, which is as follows: CLOCKROUNDS 1. Policy Between the hours of lock-up at night and unlocking in the morning, staff are required to conduct Clockrounds and Security Patrols for purposes of fire detection, security checks and inmate safety checks. The resultant record of time and location that the printout provides as. part of the electronic surveillance system is invaluable evidence to establish a definite time/location of emergent situation{s). At the same time it reduces or eliminates the need for repetitive written observations which are not otherwise significant. ~2. Procedure for Inside CLockrounds 2.1 It is mandatory that Staff maintain alertness, vigilance and proper security practices during thesD hours. This is vital for safe~y of Staff and inmates. 2.2 Staff will not have unauthorized reading materials, radios and televisions turned on, nor will they engage in any activity which may detract from the expected performance of their duties. 2.3 Staff will ensure that a reasonable level of quietness is maintained during Night Rounds, ie: Staff will refrain from deliberately banging grille or cell doors, walking and talking noisily thereby creating a disturbing and disruptive atmosphere. 118 2.4 During night time patrols, Staff will ensure that Clockrounds begin no later that 21:30 hours with the last Round commencing at 06:30 hours. 2.5 Shift Supervisors and Level Managers will ensure that all Staff are familiar with all the night time routines, along with the correct procedures in regards to the use of the electronic surveillance system and the locations of all the data strips throughout the Institution. 2.6 The Data Collectors for Levels 3, 4 and 5 are to be stored and maintained, in the respective Level Manager's office and locked away when not in use. The Level 2 Data Collector is to be maintained in the Segregation Staff Station when not in use for Level 2 Clockrounds. Mr. Morris was asked if it was satisfactory for a correctional officer required to comply with Exhibit 14 to have made a security check at 2100 hours without the use of the Data Collector wand. He answered that he couldn't recall the contents of the Standing Order and that made it difficult for him to answer the question. He was asked if there was a policy requiring Clockrounds to be made. He responded that there was no policy or Standing Order requiring such rounds to be made every 15 minutes. Rather, Clockrounds had to be made every 20 minutes. It was suicide watches that had to be conducted at least every 15 minutes. Mr. Morris was pressed further as to whether a round made by Mr. Harbutt at approximately 2100 hours, when not using the Data Collector wand to check inmates would be "ok." He answered that it was difficult to give an answer to the question without reviewing the Standing Orders and he was given an opportunity to do so. No 119 answer was given, and the matter was not further pursued by Bevan. Mr. Morris was again directed to page 137 of Exhibit 5~ being the Suicide Observation Watch Sheet for inmate Michas commencing the night that he was admitted to the detention centre on September 4, 1991. He was directed to the last entry, being at 0610 hours on September 5th,, indicating that Michas was "awake and bleeding from chin." Mr. Morris was asked why the suicide watch sheet entries terminated at 0610 hours. He said that he could only speculate as t6 ~he reason. It was put to him, and he agreed, that the suicide watch should have been "kept going until the inmate left for the hospital at 0900 hours." The persons who treated Michas' injuries might furnish an explanation with respect to the lack of further entries on the suicide watch sheet. It was put to Mr. Morris .that the treatment of Michas' injuries ceased at the Centre at 0630 hours on September 5th, that he left for the hospital at 0900 hours, and that the suicide watch entries should have continued until that time. He agreed with this statement and, in response to a further question, agreed that no one was disciplined for not continuing the entries in the suicide watch~ Mr. Morris was asked why Selkirk was penalized, in part, for having failed to perform rounds within the 15 minute limits 120 provided for, whereas C.O,'s on the day shift were not penalized for the same breach. He answered that this was an "area" that he had not "looked at at the time." Mr. Morris was referred to Standing Order E, p. 28 para. 3.2, requiring that an inmate on a suicide watch be placed in a Segregation cell, that all clothing, possessions and flammable materials be removed from him/her, that he/she should be given a security gown and security blankets, and that cell content be consistent with current Segregation policy, with a reference being to the Standing Orders concerning Segregation. He was also referred to Standing Orders section S, p. 1I, para. 4.4, which differentiates between high and low risk suicidal inmates, providing that a low risk inmate can have a mattress and that a high risk inmate be placed in a security gown. Mr. Morris was asked if this meant that a low risk inmate could wear his/her "own clothes." The question was then put another way, asking whether a low risk inmate could wear "blues." Mr. Morris responded that he did not regard the Standing Orders to be contradictory. When pressed, however, Mr. Morris said that if an inmate was placed on a suicide watch without any designation, he/she had to be placed' in security clothing. He (Morris) focussed on the words of Standing Order section E, p. 28, para. 3.2: "If the inmate is placed on a suicide watch," which indicated to him the requirements with respect to an inmate on 121 suicide watch were further governed by the provisions of Standing Order section E, p. 28a, para. 3.4: "The decision to cancel or modify a suicide alert must be made in writing by a psychiatrist or medical doctor." To Mr. Morris this meant that there was no confusion in the Standing Orders and that para. 3.2 governed along with para. 3.4, and that it was necessary for either a psychiatrist or medical doctor to modify the requirement that the suicidal inmate be dressed in security clothing. Mr. Morris was asked why Lt. Hardwick'was not disciplined for his actions. He replied that this was. "an area" he had not examined at the time. ~Mr. Morris was asked about a situation where an inmate in Segregation on a suicide watch had been permitted by Lt. Hardwick to have a mattress, which according to Mr. Morris, was contrary to the provisions of the Standing Orders. Mr. Morris was asked about the responsibility of a correction officer in those circumstances and replied that although the officer would have to follow the instructions of the Shift I/C, but should first ask for clarification if he had any doubt as to the correctness of the supervisor's action. Mr. Morris indicated that "he had made no inquiries to determine whether any C.O. asked for clarification of Mr. Hardwick's decision. It was put to Mr. Morris that many other persons continued to violate the Standing Orders, in addition to Mr. Selk'irk. Mr. Morris again responded that their breaches were 122 merely technical, whereas Mr. Selkirk had violate the "spirit"'of the Standing Orders by failing to ensure that Michas was dressed in baby dolls and that he did not have a mattress etc. It was put to Mr. Morris that Mr. Ricker had stated that he had not done anything when he observed that Michas had not been placed in baby dolls when admitted to Segregation on September 5th, which was a violation of the Standing Orders. Mr. Morris agreed that this action amounted to a breach of the Standing Orders and that Ricker had not been disciplined. It was also put to Mr. Morris that the fo]lowing employees violated the Standing Orders, as they had seen Michas wearing blues and not baby dolls: Meinert, McLean, Moccia, Bilboe, Entwisle and Swain. Mr. Morris agreed with the statement except for the case of Ms. Bilboe because she was said to have. seen Michas "covered to the neck, and ~t was not her responsibility to make a further investigation to see what Michas was wearing when she entered the cell. His statements with respect to Ms. Bilboe were repeated when he discussed the actions of C.O. Harbutt. Mr. Morris was again directed to. the provisions of Standing Order section S, p. 2, para. 2.3, which provides that at the commencement of a shift or during a relief period staff assigned to the Segregation Unit are to "familiarize themselves with the status of each inmate in the unit "and ensure that the necessary 123 requirements pertaining to each inmate are met." It was put to him that there had been a violation of this provision of the Standing Orders by Harbutt who had neglected to ensure that the necessary requirements pertaining to Michas were met. Mr. Morris agreed that this provision had been violated, but only "in part." He stated that if Harbutt had seen Michas wearing blues, the violation would have been "more flagrant." He repeated that he had taken into consideration the fact that Harbutt saw Michas covered to the neck. Although Mr. Morris agreed that ther~ was a violation of the Standing Order, he said that Mr. Harbutt was not disciplined because he had concluded that Harbutt's actions were "reasonable under the circumstances." Mr. Morris was asked why Shift I/C McCucci was not disciplined, when he ought to have known that Michas was improperly permitted to .wear blues in violation of the Standing Orders. Mr. Morris answered that "this area was not examined by" him. It was again noted that one of the bases for disciplining the Grievor was his failure to perform the ten to 15 minute checks required in the case of suicidal inmates by Standing Order Section E, p. 28a, para. 3.3. Mr. Bevan noted that other employees such as C.O.'s McLean, Meinert, Harbutt, Iacovello, and another unnamed employee had failed to maintain the necessary ten to 15 minute checks. It was put to Mr. Morris that Harbutt and Iacovetlo were "seasoned" officers but were not disciplined. He answered that the 124 "significance of their actions at the time was a consideration." He expanded on his answer by saying that he was affected by the "magnitude of the results of the violations and the number of violations" in the case of Selkirk as compared with the other persons who were said to have breached the standing Orders "in isolation." He added that the breach of only one Standing Order on one occasion by other employees was not as significant as the number and frequency of breaches committed by Mr. Selkirk. Mr. Morris was asked why he did not give some lesser form of discipline to the employees who had also violated the Standing Orders. He responded that he "did not .think it appropriate at the time" When pressed further, he said that he had not changed his mind about the correctness of his decision. He was .asked why he had not, at least, brought to the attention of the C.O.'s and others who had violated the Standing Orders the fact that they had done so:, and was further asked how they would know that they had violated the Standing Orders if their breaches had not been brought to their attention. Mr. Morris' reply was not responsive to the question, but the matter was not pursued further by Mr. Bevan. He stated, however, that he had instructed Sgt. Swain to "type up procedures" to be followed upon a recurrence, the example given being the ten to 15 minute security checks of suicidal patients. He did not inform Sgt. Swain how to do this or furnish him with any other "specifics." 125 The matter of the responsibility of C.O. Ricker as the officer escorting Michas was raised again, particularly that relating to the strip search described in Standing Order section S, p. 7, para. 3.3. It was put to Mr. Morris that C.O. Ricker had violated the Standing Order but had not been disciplined or spoken to about the violation. Mr. Morris stated that he believed "in retrospect" that C.O. Ricker should have been spoken to about the breach. It was put to Mr. Morris that Sgt. Swain and Lt. Hardwick had agreed w~th counsel for the Union, when they testified, that if a new arrival in Segregation had come i~ediatety from A&D it was not necessary to perform a strip search again. He was asked if he agreed with that position. He replied that if the receiving officer was certain that a strip search had been carried out, then it would not be necessary to perform another one in the circumstances described. He stated further that he could not see how Mr. Se]kirk could have been certain that a strip search had been conducted of Michas in A&D without having either asked if this had been done or seen the strip search conducted~himself. By way of explanation, Mr. Morris added that Selkirk could have been mistaken about his assumption that Michas had just come from A&D where he had been strip searched. He stated further 'that if Selkirk had mistakenly believed that Michas had come immediately from A&D that might have "mitigated" the impact of his actions. However Mr. Morris said he did not accept Selkirk when fhe latter 126 stated that he understood that Michas had been delivered ~to Segregation from A&D. Mr. Morris agreed that when Michas (or any other inmate) walked the 40 feet to the medical unit from A&D he should have been strip searched because the inmate would have had access in medical to "things" such as "scalpels" and to other inmates. Mr. Morris agreed that an inmate should have been escorted at ali times from A&D to the medical unit, but added that the escort officer's attention could have been diverted. Mr. Morris maintained his position that it did not matter if it was established that the inmate had been watched at all times as he proceeded from A&D to the medical unit; then back to A&D, and then to the Segregation Unit, because a strip search served as an essential "double check." Mr. Morris stated that Mr. Ricker should have informed C.O. Selkirk that he was returning Michas from the medical unit - Ricker's evidence being that he could not remember informing Selkirk of this fact. It was put to Mr.'Morris that C.O~ Selkirk would not know that Michas was being returned to Segregation from the hospital via the medical unit and not directly from A&D unless he was told that this was the case by Lt. McCucci, Sgt. Swain or C.O. Mr. Ricker. Mr. 127 Morris answered the question "Yes, with a qualification." He stated that ~officially" that is the only way that Selkirk would be aware of how Michas got to Segregation. He added that many inmates arrive in Segregation from upper levels or the medical unit, and not just from A&D, and it was incumbent on a person in Selkirk's position as Segregation Officer to make inquiries to ascertain where the inmate came from. It was put to Mr. Morris that if Mr. Selkirk was not told that Michas was being escorted from the hospital unit then the only information he would have would be the documentation accompanyimg Michas. Mr. Morris also referred to documentation, such as the Suicide Observation Sheet that would enable Selkirk to know that Michas was on a suicide watch. It was Put to Mr. Morris that the only documentation that accompanied Michas when he arrived with Ricker at the entrance to Segregation was from A&D, which fact would allow Selkirk to make a natural.assumption that Michas had not been "anywhere else." Mr. Morris was directed to that portion of Exhibit 7, being Standing Order S, p.25, para. 1, that requires "all staff members perform their duties in an efficient and expeditious manner." It was put to him that a number of other officers and nurses had violated this Standing Order. Mr. Morris agreed that this was the case "to varying degrees." He added that any violation of the 128 Standing Orders automatically amounted to a violation of para. 1, above noted. He then added further that his statement referred to conscious violations of Standing OrderS. In response to a further question as to whether~unconscious errors still amounted to a violation of a Standing Order, Mr. Morris responded: "Yes." Mr. Morris indicated that in viewing Mr. Selkirk's actions, he was affected by there being an "overarching obligation" on Selkirk to have checked with Standing Orders or to have spoken to supervision if he was uncertain as to'what his obligations were. He repeated his earlier position that while others had violated the Standing Orders, such violations were lesser in "degree." When asked about the breach committed by C.O. Meinert, who was in charge when inmate Morin slipped a packet of matches to Michas, Mr. Morris agreed that this was a substantial charge "if allowed," Reference was again made to the failure of C.O. Harbutt to perform computerized clock rounds after 2052 hours until he found inmate Michas in a burned condition. It was put to Mr. Morris that Harbutt should have performed the rounds. He agreed that C.O. Harbutt should have performed rounds at 2107 and 2122 hours. He also agreed that if C.O. Harbutt had performed rounds when he should have the unfortunate death of inmate Michas might have been prevented. 129 Mr. Morris stated that Harbutt had stated that he only saw Michas from the neck up when he took over at 2110 hours, but he agreed that at some point thereafter Michas might have set about to complete his preparations to set himself on fire. Mr. Morris was asked which officer preceded C.O. Harbutt on duty. He believes that the officer was C.O. Meinert and that Meinert performed the 2052 hours check. Mr. Morris maintained his position that there was no obligation on the part of C.O. Harbutt to ascertain whether Michas was dressed in baby dolls and he said he "could understand why [Harbuttl believed the inmate was dressed appropriately." He added that his decision was a "judgement call" that he made in the same way as he decided upon the issue of th~ Grievor's assumption that Michas had come directly to Segregation from A&D. Mr. Morris again agreed that all employees who failed to follow the Standing Orders, in failing to take appropriate action had some responsibility for what occurred, bu~ ~o a lesser degree than in the case of C,O. Selkirk. He was asked if they were thereby "culpable," He answered: "Yes." Further in response to a question as to why they were not penalized, Mr. Morris said that that was the decision he arrived at based on his "judgement at the time." He added that it was still his decision, with the possible exception of C.O. Ricker. 130 When pressed concerning the breach by Lt. McCucci, Mr. Morris stated that McCucci's situation was similar to that of Sgt. Swain and that it could be said that Mr. McCucci's failure to make rounds when required could have had an impact on what eventually happened. It was put to Mr. Morris that C.O.:. Entwisle's giving matches to Michas furnished the latter with an opportunity to commit suicide. He answered that this was the case "in part." He insisted, however, that it was all a. question of the degree of involvement of each of the persons who had violated the Standing Orders and that compared to the breaches of the Grievor, the cases of the other persons was of lesser significance. Mr. Morris also agreed, in the cases of C.O.'s Meinert and McLean and nurse Moccia, that their failure to do anything about the fact that Michas was dressed in blues could have impacted on the Michas' ability to commit suicide. He later maintained that the situation of Nurse Moccia was "not the same" because there was no reason for him to believe that the situation would remain the same. He acknowledged that Michas had been in Segregation for approximately one and one half hours when he was seen by Nurse Moccia. At the close of his cross-examinAtion Mr. Morris agreed that it was not satisfactory for C.O. Harbutt to have a record made in 131 the log book that he had made a tour with the officer he relieved. C.O. Fred Ridgers, who was also called as a witness by the Employer, testified that he had been a correctional officer at the detention centre for approximately three years and was assigned to A&D at the material times and had worked there for approximately one and one-half years. In September of 1991 he was assigned to the 0900 to 2100 hours shift and reported to shift I/C McCucci who told him that he was to escort Michas to the hospital for medical attention. Lt. McCucci said that there was another possible inmate for transfer, who Ridgers understood to be unstable. (Ridgers stated that this inmate had murdered another inmate at the Centre.) Mr. Ridgers informed Lt. McCucci that he wished to have another officer accompany him baceause of the information received and McCucci assigned officer Paul Ricker to work with C.O. Ridgers. Up to that ~oint McCucci had not said anything to Ridgers about Michas being the patient who had to be escorted to the hospit~t nor was he informed that Michas was on a suicide'watch~ ~' When C.O. Ridgers saw Michas at A&D, prior to taking him to the hospital, Michas was dressed in blues and no one in A&D informed him that Michas was on a suicide watch. Ridgers and Ricker then escorted Michas to the hospital. 132 C.O. Ridgers stated that upon returning from the hospital with Michas he did not strip search the .latter and had not been disciplined for failing to do so. He assumed that his partner {Ricker) would perform the strip search although he (Ridgers) was aware that he was supposed to do so. On returning to the detention centre, C.O. Ridgers took the cuffs and leg irons from Michas and' returned them to Central Control, and he had no further dealings involving Michas. C.O. Ridgers stated that correctional officers assigned to A&D also performed Segregation duties, and that he had worked in Segregation, to that time, approximately 100 times. He stated that correctional officers in Segregation did not change inmates sent there from blues into baby dolls until advised to do so. He acknowledged that since the incident with which we are concerned, when an inmate is on suicide watch, he/she is always put into baby dolls. Previous to the change referred to, the Shift I/C or someone associated with the medical unit (a nurse or a doctor) gave the orders to place an inmate in baby dolls. He stated that the practice described by him was the one followed at the time of the incident and that he had never been disciplined for not changing an inmate on suicide watch into baby dolls. He was emphatic that he would place an inmate on suicide watch in baby dolls only if instructed to do so. He. said that in the absence of 133 such instructions the previous practice required new arrivals to-be showered and then given a fresh set of blues. He testified that prior to the incident before us if an inmate was taken from A&D to the Medical Unit and then delivered to Segregation he never performed a second strip search because the inmate would be under constant observation from the time he left A&D until he returned. He said that his understanding of the~ practice was followed by correctional officers. He acknowledged that regular watches were to be conducted every 20 minutes and that suicide watches were to be conducted at no longer than 15 minutes intervals. He added that he has been involved with many inmates who were on a suicide watch and was often too busy to complete a suicide watch every 15 minutes. He added that he had never been disciplined for his failure to do so. In cross-examination, C.O. Ridgers acknowledged that all employees were required to follow the Standing Orders and also understood that if they failed to do so they could be disciplined. Further in cross-examination, C.O. Ridgers admitted that when he placed an inmate who was on a suicide watch in a cell, he would make sure that the.~cell was cleaned, usually by an inmate cleaner. 134 C.O. Ridgers also stated that, depending where an inmate came from, he would or would not conduct a strip search of an inmate on a suicide watch. He said it was only necessary to strip search an inmate coming from the levels to Segregation but not in the case of inmates coming from A&D. He stated that he would always find out where an inmate was coming from in order to know whether a strip search was necessary. The statements of Mr. Morris and S§t. Swain that an inmate would invariably be put in baby dolls if on a suicide watch was put to C.O. Ridgers, who stated that this was not what was done at the time of the incident. Inspector Bill Osborne, of the Fire Marshall's office in Hamilton, testified that he attended at the Centre oD September 5 and 7, 1991, at the request of the Hamilton Fire Department. He did an inventory of ali items found in cell ~9 after Michas set himself on fire. On September 5, 1991, he received notification that an inmate had been injured as a result of a fire and that the inmate might not live. When he arrived at the Centre, he was allowed into cell #9 in Segregation. .At the time he did not know Michas' condition but stated that if Michas died, he (Osborne) would have to give evidence before the Coroner. The cell was sealed with the seal of the Centre for Forensic Science. 135 Inspector Osborne again attended at the Centre with the Coroner (Dr. R. Porter) and Sergeant Gordon of the Hamilton- Wentworth Regional Police, It was at that time that he made a detailed diagram and seized samples of material in the cell. Exhibit 10 is a sketch made of the area with each item found being located on the drawing (Exhibit 10), ~He listed the following: - 6 styrofoam coffee cups - 1 styrofoam bowl - 6 separate sections of newspaper - Book of Eddy matches - package of Export cigarette paper - Vogue tobacco - Big V book of matches - (He noted that a number of the newspapers had burned and were in the form of black ash.) - a quantity of newspapers stuffed around the ceiling light in which there was a 40 watt bulb. - blanket - clothing He estimated that the newspaper would have amounted to two or three entire copies of the Hamilton Spectator, In cross-examination, Inspector Osborne stated that he could not recall whether the blanket was regular or security. 136 c.o. John MacLeod, called by the Union, testified that Phe worked in A&D for approximately nine years at the time of the incident and had worked in Segregation "hundreds of times." He said that he has had to deal with inmates in Segregation who were on suicide watch on numerous occasions.and was not always able to complete 15 minute rounds because of other urgent duties. Examples given by him were occasions where he had to escort a nurse or doctor through Segregation. He stated that he has never been disciplined for failing to perform 15 minute cheeks while an inmate was on suicide watch. He stated that when an inmate on suicide watch was placed under his supervision, he ]eft the inmate in blues and did not change him/her into baby dolls. He regarded himself as not having the authority to place an inmate in baby dolls without instructions from a supervisor: a Shift I/C or the A&O Supervisor. He stated that he had never been disciplined for failure to put a suicidal inmate into baby dolls. He also testified that if there was a new arrival in A&D, that inmate would be showered and searched. If the inmate was then taken to the Medical Unit and, from ~there back to Segregation, he/she would not be strip searched again. He noted that when the inmate would be escorted to the Medical Unit, he/she would be under surveillance at all times. 137 He acknowledged that the requirement with respect to inmates on suicide watch was subsequently changed after the incident with which we are concerned, and such inmates are now invariably placed in baby dolls. In cross-examination, C.O. MacLeod indicated that he ceased working in A&D and Segregation in March of 1991. He was asked if he was aware that the incident involving inmate Michas occurred in September of 1991 and he replied that he had "no idea." He also stated that an inmate who was escorted from A&D to Segregation would not even be frisk-searched because he/she would be under constant observation by at least one correctional officer. He stated that when a search was made of an inmate coming to Segregation ,there were two C.O.'s present because one is needed to open the Segregation cell and for protection, as some inmates in Segregation are "dangerous," ~ He acknowledged that he was aware of the Standing Orders and was expected to follow them. C.O.. MacLeod was directed to Standing Order section E, p. 28, para. 3.2, and indicated that he had not followed it when aasigned to A&D and had not placed suicidal inmates in a security gown. He did acknowledge that it was his responsibility to make sure that 138 the Segreqation cell was "clean" when he placed a suicidal inmate · in the cell. ~ C.O.. MacLeod stated that he now works on the fourth level of the Centre with the general population, although he is, on occasion, "called" to A&D to fill in, and this has been the case since March of 1991. ~ C.O. MacLeod stated that he had never been "told" that he must perform a 15 minute check of inmates on suicide watch. The Grievor testified that, at the time of the hearing, he had been employed by the Ministry for approximately 14½ years as a correctional officer. He stated that he had been assigned to the' A&D unit for approximately ten years and had served as the Segregation officer over a hundred times. On-S.eptember 5, 1991 he worked the 0645 to 1515 hqu~ shi£~., and was assigned as the Segregation officer. -- Prior to 0645 hours he attended a briefing that involved, with the exception of those assigned to the Young Offender Unit, .the entire complement of correctional officers in the institution. Present would be approximately 25 correctional officers as well as the Shift I/C, who, on that day, was Lt. McCucci, who was supposed to pass aI'ong to the staff major occurrences from the previous 139 shifts, which could include shifts occurring two to three days previous to the briefing. This was said to be done in order to take into account staff who might have been off for some period of time so that they could be kept abreast of significant happenings during their absence. The briefing could cover any of the living units.including A&D (which incorporates Segregation). The Grievor stated that Lt. McCucci made no mention of inmate Michas or of any facts relating to him during the noted briefing. Mr. Selkirk stated that it was usual for the Shift I/C to provide information to the staff about incidents where inmates had suffered injuries, self-inflicted or otherwise, and which inmates were on a suicide watch. Mr. Selkirk also stated that at the commencement of a shift the A&D Supervisor for the previous shift would usually be present and might give a brief statement with respect to happenings in A&D directed at the A&D~ staff. The incoming A&D Supervisor would not commence his shift until approximately 0800 hours and, therefore, was n~tT~present at the 0645 hours briefing. Mr. Selkirk stated that following the general briefing at 0645 hours on September 5, 1991, there was a brief discussion involving A&D staff at which time he learned that an inmate in the A&D holding cells - whose name was not given - had "rolled off a mattress and cut his head." After the morning briefing he did not 140 see the inmate who had injured himself, but proceeded from ~he briefing to A&D where he went to the clothing room from which place he could not see the A&D holding cells where Michas was located. He then engaged in a short conversation, the nature of which he did not mention, in the clothing room, where he examined the roster in order to ascertain that the scheduling for the shift was the same as the staff had been informed earlier. Although the name of the person assigned to Segregation was read out.at the briefing at 0645 hours, this might not be adhered to and it was necessary to "double check the posting" as set out in the roster found in the clothing room. There he found that he had been assigned to Segregation for the shift in question. Mr. Selkirk stated that he received no information that Michas was the inmate who had injured himself and that he had been placed-on a suicide watch. ~. - In the Segregation area, Mr. Selkirk completed the changeover procedure with the correctional officer assigned there during the previous shift.~ Mr. Selkirk stated that it was his responsibility as the Segregation officer to ensure that inmates were accounted for and he proceeded to the Segregation cells to ascertain that all of the inmates were secure. He satisfied himself that the inmates were housed in the proper cell and took a count to confirm this. The 141 ~onfirmation of the count was concluded with the involvement of the correctional officer assigned to Segregation during the previous shift. Mr. Selkirk then received the keys to the area and signed off necessary paperwork to complete the transfer. Se]kirk referred to the Segregation Log for Thursday, September 5, 1991 from 0700 hours to 1500 hours. He pointed out the entry at 0656 hours: "[Accompanied] Mr. Higgins on tour and count," and the entry at 0700 hours "relieved same of duties and keys." He said that the signature following was his. Reference was made to Segregation Log, a copy of which is reproduced at p. 117 of Exhibit 5 for the shift commencing on September 4, 1991 at 1900 hours, ending at 0700 hours on September 5: There is an entry at 0650 hours "[Accompanied~ Mr. Entwisle on tour and count," followed by an entry "0700 hours relieved by same of duties and keys." The signature following is said to be that of Mr. Higgins. Mr. Selkirk stated that Mr. Entwisle was not on this tour at the time noted with Mr. Higgins. Mr. Selkirk stated that Mr. Higgins had been advised by the Shift I/C at the briefing that Mr. Entwisle and not the Grievor would be the Segregation officer on the September 5, 1991 day shift, which turned out not to be the case. He said that Mr. Higgins should have changed the entry to show that it was Mr. Selkirk and not Mr. Entwisle who accompanied him on the tour at 0650 hours and ~ho relieved him of the keys at 0700 hours. Mr. Selkirk stated that the entry was evidently made 142 in advance of the tour and was "carelessly completed" by ~r. Higgins. After Mr. Higgins left Segregation, the Grievor was the only Segregation Officer. Mr. Selkirk stated that as the Segregation Officer it was his responsibility to record in the log book all checks, tours completed and other normal daily routines, including movement in or out'of Segregation. In addition, all "unusual circumstances in the area" would be recorded~ He reviewed some of the entries found in the Log book that were made by him. He first heard the name "Michas" after the changeover with the n. ight shift on September 5th. He then had an opportunity to review the Segregation entries for the previous "couple of shifts" and observed the entry found in the Segregation Log commencing Wednesday, September 4, 1991,~ 1900 hours t~ 0700 hours on September 5, at p. 117 of Exhibit 5. The 0610 hours entry on September 5, relates to inmate Michas and the injury that he suffered with a note that the Shift I/C had been notified and that Michas claimed to have "slipped while moving around." He also referred to the next entry, which is illegible, as also pertaining %o Michas. We were never informed as to what the contents of that entry were, and neither party pursued the matter. He then reviewed the Log entries for the last "couple of shifts" as he was required to be aware of incidents occurring that were "out of the ordinary" for that period. In reviewing the Log 143 he could "see how the unit was running and if there were any problems in the area [Segregation]." At the time the first entry was made with respect to Michas, as above noted, he was not responsible for Michas, and added that he had not seen Michas to that point. Any entries with respect to Michas before he was transferred to Segregation would likely be in the A&D Log Book where Michas had previously been kept. A sheet of paper posted outside each of the 12 cells in Segregation indicated the name of the inmate in the cell. He also carried~a clipboard on his rounds, conm~encing at 0650 hours, when he commenced his first tour of the shift, which indicated who was in each of the Segregation cells. At that time he was aware of the 12 inmates i~ the area as well as their names. By way of example, he referred to the Segregation Sheet found at p. 150 of Exhibit 5, dated September 4, 1991, which contains the date when each inmate was placed in Segregation, their file number, name, a comment and status column with respect to diet, and a column with respect to milk. At the bottom of the sheet is a section for comments with such notes as "no contact" and "no contact with anyone." 144 Mr. Selkirk stated that it was his duty to make sure that ~he names on a Segregation Sheet, such as the one found at p. 150 of Exhibit 5, coincided with the names on the sheets outside of each cell. Referring to the Segregation Log for the day shift on September 5, 1991, Mr. Selkirk stated that from the entries he concluded that Michas could not have been in and out of Segregation previous to being escorted there by C.O. Ricker. When he took over from C.O. Higgins at 0700 hours and read the Suicide and Behaviour Watch Sheet for the previous shift, he. concluded that the 0610 entry referred to the same inmate that the staff had spoken about at the beginning of the shift, without mentioning a name. Mr. Selkirk stated that he had no information as to what entries, if any, had been made in the A&D Log with respect to Michas. Mr. Selkirk referred to recording of two types of movements of inmates: one, where an inmate is moved out of the area and is not expected to return and one where the inmate may return, as where the inmate is moved out of the area for a "medical visit." He referred to an entry in the Segregation Log found at p. 118 ~f Exhibit 5, made at 0953 hours on September 5, 1991, involving-an inmate named SchuSter, which entry represented a transfer where the inmate was not to return to Segregation. As a result of the 145 movement of Schuster, the total of the number of inmates assigned to Segregation was reduced by one. Mr. Se/kirk again referred to an entry made by himself.in the Segregation Log for the day shift of September 5, 1991, at 1120 hours: "Michas, J. into seg. cell #9 for medical suicide and behaviour watch." He stated that at approximately 1120 hours he heard a knock at the Segregation door. Upon opening the door, he observed C.O. Ricker accompanying an inmate, later identified as Michas. Ricker informed Selkirk that the inmate w~'s to be housed in Segregation. Selkirk stated that he then called the A&D Supervisor, Sgt. Swain, by phone and informed him that the admission of the inmate to Segregation would bring the complement of inmates housed there up t'o full capacity (12 inmates, 12 cells). Selkirk informed Swain that he was concerned that if all of the cells were occupied and an emergency arose, there would be no place in Segregation to house an inmate who had to be admitted because'of the emergency. Sgt. Swain then asked C.O. Ricker who had ordered Michas to be placed in Segregation, and Ricker responded that the order was contained in a medical authorization, sgt. Swain then said that if that was the case, Michas would have to be admitted. Mr. Selkirk said that he did not recall receiving any verbal information from C.O. Ricker concerning Michas. He added, however, that even if he had been told that Michas was on a suicide watch, he (Selkirk~ would "not do anything different." 146 C.O. Selkirk received the paperwork with respect to Michas from C.O. Ricker and placed it on a desk in the staff station area (a cubicle where the Segregation Log and paperwork associated with Segregation were kept). He then had Michas accompany him to cell #9. On returning to the staff station, at approximately 1120 hours, Mr. Selkirk "leafed through" the material and observed that Michas had been placed on a suicide and behaviour watch. Mr, Selkirk was emphatic that C.O. Ricker did not-~accompan'y him and Michas to cell #9. He added that'~e expected C.O. Ricker to accompany him and inmate Michas all the way to the cell, but did not comment on his failure to do so. Mr, Selkirk stated that he expected that he would precede C.O. Ricker and Michas as the three of them proceeded towards cell #9, and that Ricker would close the Segregation door. After he placed Michas in the cell, C.O. Selkirk noticed that the Segregation door had been left ajar and that C.O. Ricker was not there. C.O. Selkirk said that before placing Michas in cell #9 he had him place his hands on the wall with his feet apart and performed a "frisk search" by running his hands over Michas' body, also ~xamining under Michas' shirt c~llar, the cuffs of his clothing and under his arms. Selkirk said that he did not perform a strip search as he believed that Michas was a new admission from A&D, based on his examination of Michas' Unit Notification Card which 147 was on top of the paperwork delivered by C.O. Ricker, where there was no indication of a previous placement in the institution. If Michas had been housed elsewhere in the Centre, this ought to have been shown on the card where there is a place to set out the inmate's previous placement. C.O. Setkirk added that he expected C.O. Ricker, as the Escorting Officer, to have kept Michas in view at all times. He also expected Michas, as a new admission to A&D to have been strip searched a "few moments ago," and believed that to perform another strip search so close to the previous one would be "redundant." C.O. Ricker had not informed Se]kirk that Michas had just come from the medical unit, and was not a new A&D admission. C.O. Selkirk, referring again to the entry at 0610 hours on September 5, 1991, above referred to, stated that the indication that Michas' injury had occurred "while in front holding cell" reinforced his belief that Michas came to S~gregation directly from A&D. That is, it reinforced his belief based on his earlier examination of the Unit Notification Card. C.O. Selkirk did not accept the suggestion made to him by Mr. Benedict that he knew that Michas had gone to the hospital unit from A&D and was then escorted to Segregation, and continued to maintain that at the time he received him he was unaware that Michas was other than a new admission to A&D. 148 He added that if he had been made aware that Michas came to Segregation after being sent to the hospital unit he still would net have strip searched him because he could rely on the escorting officers to perform a strip search when Michas had been issued a new set of blues before he was sen6 to the Hospital in Hamilton. It was also his belief that Michas would "likely" have been furnished with fresh blues on arrival in A&D, after being escorted from the hospital unit. C.O. Selkirk said that he believed that.he heard that Michas had been to the hospital unit from Nurse Moecia, who said that he had observed Michas with C.O. Ricker there. C.O. Selkirk said that upon frisk searching Micha.s~ he discovered a pouch of Daily Mail "rolling" tobacco and a "package of cigarette rolling papers." He'al/owed Michas to have these items because even though inmates on suicide watch were not permitted to have matches they could have tobacco and.cigarette papers, He said that he'examined the package of tobacco and khe package of cigarette papers to see if they had been opened and, after satisfying himself that they had not been, returned them to Michas. In cross-examination he stated that he was uncertain as to whether the package of tobacco had been opened. Inmates wishing to have their cigarettes lit, made a request to the Segregation Officer when he/she was making his/her rounds. Cigarettes were lit by the officer through a window in the cell, 149 C.O. Selkirk referred to the Suicide and Behaviour Watch form found at p. 134 of Exhibit 5, and noted the following entries that he made "1305 seen by ... Moccia," "1325 rolling a cig." "1346 smoking." He also stated that he made the entry at 1346 because he had given a light to Michas after which such an entry had to be made, (We note that there was no indication in the Suicide and Behaviour Watch that C.O. Seikirk had lit Michas' cigarette. The earlier reference at 1325 hours was that Michas was "rolling a cig[arette]." In referring to the entry at 1305 hours, C.O. Selkirk stated that Nurse Mocc~a and he entered Michas' cell after he (Se!kirk) opened the door to the cell. No other officer was said to be present at the time, and he did not regard such a presence to be unusual as a member of health care staff was permitted to assume the role of a support correctional officer and was permitted to hold keys and furnish access to a correctional officer for entry to the day rooms and Cells. He added t~at it is not uncommon for correctional officers to open cells in Segregation without another correctional officer being present, and'Nurse Moccia did not object to the Grievor opening the cell without another correctional officer being present. C.O. Selkirk acknowledged that some of the rounds shown on the above noted Suicide and Behaviour Watch form were not made within 15 minutes of each other. He said that he attempted to carry out 150 the rounds within the 15' minute time limit but because of the count (i1 and 12 inmates) and because of the pressure of the duties of the Segregation Officer, it was difficult to maintain a 15 minute watch. He added that certain other duties take priority to maintaining a maximum 15 minute watch interval and this practice has been followed by him in the past without his being spoken to or disciplined. He stated that unless the pressure of other duties was extreme he would not make his sergeant (A&D Shift Supervisor) aware of the fact that he was unable to maintain a schedule of 15 minute rounds to observe an inmate on suicide watch, He. said that although his supervisor would not be immediately aware of the fact that he was not maintaining a 15 minute suicide watch, this information would be gathered later from an examination of the Suicide and Behaviour Watch sheet. He said that his supervisor would sign the Segregation Log at the same time as he saw the Suicide Watch an~ Behavioiur Sheet and would therefore be aware that the 15 minute requirement for checking on an inmate on suicide watch had not been maintained. C.O. Selkirk stated that the Shift I/C was required to be in' Segregation to conduct a tour twice during his/her shift and was required to enter this fact in the Segregation Log,~ and in the Suicide and Behaviour Watch form. He noted the entry at 1443 hours by Sgt. Swain during the day shift on September 5,' ]991: "Tour," in commenting that the A&D 151 Supervisor is required to tour Segregation four times a shift. If the A&D Supervisor checked the Segregation Log, he would have seen that the Grievor was not performing 15 minute suicide "checks." He stated that it was the obligation of~the Shift I/C and the A&D Supervisor to review the Log 'to see that they were being kept in accordance with the requirements of the institution. In addition, a Shift I/C and an A&D Supervisors are required to check Suicide Watch Sheets to ascertain if they are being properly maintained. He stated that he received no indication from either of them that he was not maintaining the proper 15 minute suicide checks. C.O. Selkirk stated that when an inmate on a suicide watch is Brought to Segregation he never places the inmate in baby dolls. He did not regard himself as being authorized to change an inmate from blues to baby dolls or from baby dolts to blues without authorization from higher authority, such as from the Shift I/C, the A&D Supervisor or a member of the medical staff. He stated that there were a number of times when he was 'the Segregation Officer and was required to be responsible for inmates on a suicide watch and in all cases they were dressed in blues. He stated that no Shift I/C or A&D Supervisor had ever informed him that an inmate being brought to Segregation had to be,dressed in baby dolls. He stated that shortly after the "Michas incident," there was a change 152 in the directions so that even inmates with "suicidal tendencies" had to be placed in baby dolls automatically. C.O. Selkirk stated that when he was relieved by C.O. Meinert at 1500 hours, he made a tour of the Segregation area and this included an examination of the area for any risk factors. C.O. Meinert asked nc questions of the Grievor concerning what type of clothing inmates should be dressed in. He also stated that he was relieved for a meal break at 1130 hours by C.O. McLean, and when he returned from the meal break he was not asked by C,O. McLean as to what type of clothing Michas should be dressed in. C.O. Selkirk state,d that when he was with Nurse Moccia, at 1330 hours, the latter did not make any comment coDcerning the fact that Michas was dressed in blues. C.O. Selkirk also stated that on September 5, 1991, to the best of his "know!edge," Shift I/C. McCucci did not visit Segregation. · The only time that C.O. Selkirk was out of S~gregation during the day shift on September 5, 1991 was when he was on meal breaks. He added that if Lt. McCucci had been present mn Segregation during the day shift on that day, he should have made appropriate entries in the Segregation Log and the Suicide Watch Sheet. 153 He stated that C.O.'s Meinert and McLean had not informed him that they were uncertain as to the way in which they should conduct themselves in Segregation. In cross-examf~ation, C.O. Selki?k was asked why he had not made inquiries of Michas as .to whether he had any matches. He responded that as a new admission to A&D, Michas would not have been issued matches when he was given tobacco and papers. He agreed, however, that it was part of the Segregation Officer's job to see that an inmate had no matches on his person. Also in cross-examination, C.O. Selkirk acknowledged that there was nothing on the Suicide Watch Sheet designating Michas as either high or low risk. in cross-examination, C.O. Selkirk'stated that he was unaware a Segregation Officer was not allowed to search an inmate in Segregation in the absence of another C'.O, He then added that when he was the Segregation Officer he did not search an inmate in the absence of another correction officer. However, he acknowledged that when he searched Michas there was no other C,O. present. He 'then added that he did not realize that Ricker was not in the area until after he had frisk searched Michas. He further acknowledged that he was not actually aware where Ricker was at the time, and then added that he "felt" C.O. Ricker was in the Segregation area "somewhere" at the time. It was only when he locked Michas in cell 154 #9 and proceeded down the corridor that he realized that Ricker was not there and that Ricker had not closed the door to Segregation. In cross-examination, C.O. Selkirk was directed to the portions of the Segregation Log found at p. 117 cf Exhibit 5, with respect to entries made at 0610 hours on September 5, above referred to, and to the next entry, which is illegible. He was asked whether he drew any conclusions concerning Michas after he read the entries. He said that he was unable -to' decipher the second entry and was sceptical about the statements made by Michas as to the reason for his injury. He stated that it did not occur to him that Michas was suicidal based on the log entries. In response to a question in cross-examination, C.O. Selkirk said that he felt he handled the situation as well as he could in the circumstances. He said that it was unnecessary for Ricker' to be directly at his side when he searched an inmate as long as he was in the vicinity, and this was cqnsistent with his previous experience. C.O. Selkirk acknowledged that he had not conducted a "full blown search" of cell #9 before placing Michas there. He said he had done some cleaning of the cell after inmate Schuster was removed a few hours prior to Michas' being placed in it. Selkirk testified that when Schuster was escorted from the cell, he 155 (Setkirk) "cleaned out some debris" including styrofoam cups and plates from the cell. C.O. Selkirk was directed to the statement that he gave to Inspector Ryan on September 6, 1991, and to the fact that he did not mention anything about inmate Schuster, and was asked why he had not done so. He responded that the Inspector had not asked him any questions about his dealings with inmate Schuster. Further in cross-examination, he stated that after Schuster left the cell that he had occupied in Segregation an inmate cleaner "would have" cleaned the cell and that there was an approximate one and one half hour period between Schuster's leaving and Michas' arriving in Segregation. Under close cross-examination, C.O. Selkirk continued to maintain that it was unnecessary to have conducted a full strip search of Michas when he was placed in cell ~9 in Segregation. He repeated his position that it was not necessary to do a full strip search immediately upon an inmate coming to Segregation directly from A&D as he could reasonably assume that a strip search had been performed by correctional officers in'A&D. In cross-examination, C.O. Selkirk was asked if it was his responsibility to see that the cell was searched and cleaned, and, if it was, why he neglected to do so. He responded that he informed A&D staff that he required a cleaner to clean cell ~9 and 156 when none was furnished he did the best he could in the circumstances. C.O. Selkirk also clarified his earlier evidence, and stated that he did not believe that an inmate cleaner had cleaned cell ~9 after Schuster was removed. In cross-examination, C.O. Selkirk stated that he had spoken to personnel in A&D on three occasions about having someone clean cell #9. He said he spoke to Sergeant Swain once, when Swain %~as in the clothing room, and to another C.O. (Dolson) on two occasions. He added that this is what he now recalls took place. It was put to C.O. Selkirk that although he chose to place an inmate in an "uncleaned" cell, he could have insisted that the cell be cleaned. He replied that this could be considered to be "an option" that he had. It was further put to C.O. Selkirk, in cross-examination, that as cell ~9 bad not been properly cleaned or searched, he would not know what might be "hidden in the cell." He responded that he was satisfied with the inspection that he had conducted and nothing that he saw "would pose a great risk." He acknowledged that there were newspapers in the ceil when Michas was placed in it. Mr. Benedict asked C.O. Selkirk whether he, as an experienced correctional officer, regarded it as sensible to place a suicidal inmate in a Segregation cell dressed in blues. C.Oo Selkirk 157 responded that it made sense to him as he did not have authorization to change Michas into baby dolls and he insisted that he required direction from supervision or from someone in the medical unit to make this change. He acknowledged that the purpose of dressing a suicidal inmate in a security gown and furnishing him/her with a security blanket was to protect the inmate from "self harm." He added that it also reinforced, in the case of an inmate with a behavioral problem, the fact that his/her behaviour was "not acceptable." This was said to be the case because the inmate would be affected by th~ "degrading" treatment. He added that wearing baby dolls and being furnished with a security blanket would reduce the opportunity to "hide contraband." In re-examination, C.O. Selkirk stated that there was nothing wrong with a suicidal inmate having a newspaper or a magazine in his cell. Referring to the Hamilton Spectat.0r article of June 20, 1992, {Exhibit 11) he agreed with the statement attributed to Mr. Hardwick that ru±_ changes ended the low-risk classification three or four months ago... ". He stated that shortly after the incident Sgt. Swain met with the A&D staff and made it clear that any inmate on a suicide watch would be placed in baby dolls and that there would be no exceptions. 158 He also agreed with the statement that followed in Exhibit 11 to the effect that newspapers were not on the list of items allowed in a suicide watch cell but that there was "no problem with one being there because ... a newspaper is equivalent to one magazine, which is allowed," which statement was attributed to Mr. Hardwick. Also in re-examination, C.O. Selkirk reiterated his position that he had done everything possible to have cell #9 cleaned out and that it was the responsibility of cleaners sent by A&D to come into Segregation area to clean the cells. Further in re-examination, C.O. Selkirk said that when he spoke to Sgt. Swain about having an A&D cleaner clean out the cell vacated by Schuster, he was advised that the cleaner inmate who had been assigned to clean the cells had been discharged from the institution a'nd that steps were being to taken assign someone else to perform this task. However this did not take place before Mich~s was placed in the cell, nor did it take place thereafter. According to C.O. Selkirk, he had never been directed to clean a cell out nor did he believe that it was his responsibility t~ do so He was unaware of any directive that required a correctional officer to clean out inmates' cells. Argument of the Employer 159 Mr. Benedict made the following submissions: i. This case was about the negligent performance of the Segregation Officer's job by C.O. Selkirk. 2. "In a sense" Selkirk by failing to follow a number of Standing Orders had neglected to take appropriate actions in handling Michas while the latter was in the Segregation. These failures enabled Michas to commit suicide. 3. It was on the basis of these breaches of the Standing Orders that the Grievor had a penalty of a ten-day suspension imposed. That is, for his negligent actions. 4. ThE evidence disclosed that the Centre represented a "big operation" and that it functioned as a maximum security facility with 350 male inmates, 40 female inmates and 40 young offenders, ail of whom were either on remand or serving short sentences. These inmates were supervised by approximately 286 staff of whom approximately 160 were correctional staff. 5. Sgt. Swain was the manager of the A&D area, and by virtue of that assignment was also the supervisor of Segregation, which was adjacent to it. 160 6. Inmates are placed in Segregation for a number of reasons: as a form of punishment; for administrative reasons and when on suicide watches. 7. The Hamilton-Wentworth Detention Centre_, because of the nature of the activities carried on there, had to be, and was, conducted as a "highly regulated paramilitary environment." Mr. Morris, the then Deputy 'Superintendent of the institution, testified that it was a r~asonable requirement, which correctional officers and staff were well aware cf, that they had to know and follow the Standing Orders governing the Centre. 8. Each correctional officer received his/her own copy of the Standing Orders, which represented an "integra] part of the correctional officer's job." The provisions of the Standing Orders, as they related to inmates on suicid~e watch, were "clear and unambiguous," and they related to the circumstances before us. It was reasonable for the Employer to expect an experienced correctional officer such as the Grievor to act "with good judgement and common sense~" If a correctional officer found an Order to be unclear, then it was a reasonable expectation that he/she wound ask for clarification from supervision. 9. L't. Hardwick, the Shift I/C on duty when Michas was pulled from the cell after setting himself on fire, tetified that Michas 161 was dressed in blues and had placed paper in the upper portion of the clothing and set the paper on fire. 10. Michas was, when admitted to Segregation, a "clearly suicidal inmate," who had been placed there for the purpose of maintaining a suicide watch. 11. The Grievor, on September 5, 1991, was an experience~] correctional officer with approximately nine years service who had worked on many occasions in Segregation and was well aware of the duties and responsibilities of 'the position of Segregation Officer - there being only one such officer on duty. during any shift. 12. Michas was the responsibility of the Grievor along with other inmates in Segregation during the day.shift on September 5, 1991. Among the Grievor's duties were the responsibility for giving inmates lights for their cigarettes, maintaining acceptable behaviour, accepting requests and seeing to the feeding of the inmates. In carrying out the responsibilities of the duty Segregation Officer, the Grievor was also responsible for enforcing the Standing Orders pertaining to the supervision of inmates in Segregation? 13. Lt. Hardwick testified about which inmates were permitted to wear blues in Segregation and which ones were required to be dressed in baby dolls, being a heaVy fire and tear resistant 162 security gown. Special emphasis was placed on the responsibility of a Segregation Officer to ensure that inmates wore the proper clothing when in Segregation. Emphasis was placed on the fact that there was no way to co'fuse inmates dressed in blues and baby dolls. 14. Emphasis was placed on the evidence of Sgt. Swain and Mr. Morris, both of whom testified th@t' inmates on a suicide watch in Segregation were usually dressed in baby dolls and that only in exceptional cases were they permitted to be dressed in blues. 15. Permission for an inmate on suicide watch in Segregation to be dressed in blues could only be given by order of the Centre psychiatrist, and it was stressed that there was no evidence in the case before us that such an order had been given. 16. The instructions with respect to inmates in Segregation on a suicide watch that were posted in the Segregation office, and which are found at pp. 34-36 of Exhibit 5, were clear and unambiguous. 17. Mr. Morris' letter (Exhibit 2A) as explained by him, indicated that although the Grievor d'id not believe that Michas was about to commit suicide, he was aware of the possibility of his doing so. The Grievor violated a number of Standing Orders which vio]ations "made available" the opportunity to Michas to commit suicide. 163 18. Reference was made to Standing Order section E, pp.28-28a, para. 3.2, indicating that an inmate placed on a suicide watch would be housed in a Segregation cell and have all clothing, possessions and flammable materials removed from him and that the inmate be furnished with a security gown and security blanket, with cell contents to be consistent with "current Segregation policy." Mr. Morris testified that the purpose cf this Order was to reduce the possibility of a suicidal inmate using items that had to be removed in furtherance of a suicide attempt. He noted that the security gown is fire resistant and, because it is tear resistant cannot be used to assist the inmate to hang him/herself. 19. At the time C.O. Ricker escorted Michas into Segregation, the Grievor was well aware that Michas was a suicidal inmate on a suicide watch. 20. C.O. Ricker's evidence contained, in his statement given 'to Inspector Rysn, which he for the most part accepted, was that he had handed documentation with respect to Michas to the Grievor. Reference was.made to the Health Care Observation {Suicide Watch~ Sheet, prepared by Nurse Mason, found at p. 134 of Exhibit 5, dated September 5, 1991, which shows the watches for the period ending 0700 hours September 6, 1991. 21. Reference was made to the Grievo~'s entry in the Segregation Log for September 5, 1991, found at p. 118 of Exhibit 5, that 164 Michas had been admitted to cell ~9 in Segregation at 1120 hours "for medical suicide and behaviour watch." 22. We were also asked to note the Grievor's statement given to Inspector Ryan on September 6, 1991, and particularly the portion found at 'the bottom of p. t54 found in Exhibit 5, where the Grievor, when asked if he was aware that Michas "was placed on a suicide watch," responded: It wasn't until he was in the cell and I checked the paperwork. I noticed a medical observation sheet which stated, suicide watch and behaviour. There was no i~]dication from the Grievor that this answer bad been inaccurately recorded and that any alleged difference between this statement and his evidence should be resolved in favour of the statement. 23. We were ~lso asked to note the acknowledgement by the Grievor, during cross-examination, that he had not questioned Michas as to whether the latter had any matches in his possession when he was admitted to Segregation. It was stated that it was only reasonable to expect, an experienced correctional officer such as the Grievor to take "every precaution" in supervising an inmate admitted to Segregation under suicide watch. 24. It was also submitted that the Grievor had been similarly remiss in failing to place Michas in security clothing. 165 25. We were asked to compare C.O. Ricker's evidence at p. 162 of Exhibit 5, being his alleged statement given to Inspector Ryan on September 13, 1991, especially the statement that Michas went "right into cell, wearing shoes," and that C.O. Ricker "ordered him out of the cell and then he [Michas] removed his shoes." We were also asked to note the evidence of Lt. Hardwick that Michas was still dressed in jail blues when he was pulled from his ceil after setting himself on fire. 26. We were also asked to note the evidence that indicated that no serious endeavour was made by the Grievor to search cell ~9, and there was no evidence to show that it:had been cleaned. We were asked to note C.O. Ricker's evidence that he was present when Michas was placed in the cell and that no effort was made to search the cell or clean the cell. 27. We were asked to note the second question at p. 155 of Exhibit 5, which indicated that the Grievor acknowledged that he had not made a full search of the cell prior to placing Michas in it. 28. We were also asked to note that, at p. 155, the Grievor indicated that he had only "pat frisked" Michas. 29. We were asked to note the evidence of Sgt. Swain that if an officer required assistance to clean a cell he only had to ask for it. 166 20. We were asked to examine the Segregation Log, found at [~. l],q of Exhibit 5, which indicates that Michas was brought into the Segregation area at !120 hours and that Schuster had ie[t the area at 0953 hours. It was submitted that i~ was difficult to understand any suggestion that might be made o~ behalf of the Grievor that he did not have enough time to clean ~he cell during th~--: approximately one and one hal. f ].'~cm]:..~; · avails, hie for that pu rpo s e. 31. We were asked' to note the evidence of Mr. Osborne from the Fire Marshat.['s office who described the mate,'ia]t,~..' ~ he found in t. he cell when he investigated the incident following :?li~:.has' removal; there being six styrofoam cups, two or three ~ent. ire newspapers (four or five sections each from the Hamilton S[m~ct.ntor}; tw~.~ [~ackets of matches. It was noted thah one of them could be a .... ('~' ntcd for as being furnished by C.C. Entwisle with the second pac.]<age coming 32. We were asked to draw the fo].lowin9 conclusions with respect tc~ the violation of the breach of khe ~4 '= .... t,,t Standing Ore]er relied upon b~' the Employer: 1) That the Grievor knew at 1120 hours that Michas was in Segregation on a suicide waLch, 2) That the Grievor did not have Michas change from blues into baby dolls as required, 3) That ceil. ~9 had not been cleaned at the time when Michas was placed in it, 4) The consequences of the failures of the Gt.'ievo~- ..to ad]~ere to the noted Standing Order was that Michas ha~] made 167 available to him a n~mber el oppo~'tunities to commit su±cid~_~ that would otherwise have ?~een absent. That is, Michas was 10ermit~ed by the Griever to remain ~r~ ~'.]othes that he should not h~ve been wearing that represented a potential hazard to a suicidal ~nmate; was able to kee][~ the matches he should net have had, and was aisle. to use them to light the newspa[~,ers that he also should not have had, and. thus t~-: alzter:;),::t s~.2. i,~-:ic.~e. 33. Reference was made to a second vie.lateen of Standing Orders by C.O. Sol. kit]<: th.~t of Standing Order se~tion E, p. 2~a, para. 3,3, which requires that inma'tes on suicide observation "must be checked at least ew~rl~ ].0 - 15 minutes." Referer~ce was made to the evidence of Mr. Morris who stated the purp~se of the Standing was to ensure regular observation that would red~ce the opportunity for an inmat~ to c~mmit suicide. Refer'once was made to the Suicide and B~:~h.~vi_ou.r W~tch ~h~_~t from 1134 hours on September 5, ].991 to 0700 hou~-s on Sel:~tembe~_' 6, 1991, fount] at p. 134 of Exhibit 5, to :!emonstrate that the ~-equirement ha~-] not been followed. While i.t was acknowledged that oth~r staff had not foil. owed the St,ending Order, we we~'e ~skerl t:-~ .~cce~t Mt.'. M~.~rris' evidence that the Griev:pt-'s condt~ct must be viewed as a "total f:ackage" and that his behaviour in the circumstances re}~resented th:~ most set-'iot~ s violations and breaches of the Standing Orders. 34. Reference was also made to the thi~'d violation of Standing Orders relied upon bl~ the Employer: Standincj Order section S, p. 7, 168 para. 3.3, which requires that an inmate arriving in Segregation must be strip searched prior to securing him/her in a cell, and that a fresh set of clothing be issued to such an inmate. Reference was made, again, to the evidence of Mr. Morris that the purpose of the Standing Order was to reduce the possibility of an inmate bringing into a Segregation cell any items that could assist him/her in'committing suicide or which might constitute a threat to the safety of inmates'an~ staff. Particular reference was made to the requirement that fresh clothing be issued so as to ensure that no prohibited matter be hidden in the inmate's clothing. The strip search was said to allow for the detection of items that could be missed on a frisk search, and reference was made to the evidence of Sgt. Swain with respect to the two types of searches that are conducted and the purpose of each. 35. We we're directed to the evidence of C.O..Ricker, both oral and as set out in }]is statement at p. 162 of Exhibit 5, indicating that he had accompanied C.O. Selkirk, along with Michas to cell ~9 and that, to the best of Ricker's knowledge. Michas was not searched hy anyone prior to being'placed in the cell. This was contrasted with the statement made by the Grievor at p. 155 of Exhibit 5 that he had pat frisked Michas. 36. The consequences of the failure to perform a proper search and change Michas into baby dolls was said to be that he was able to keep the packet of matches that had previously been given to him by 169 C.O. Entwisle. Reference was made to the evidence of Mr. Osborne from the Fire Marshall's office that the contents of the cell included two packets of matches. It was submitted that if a proper strip search had been conducted as required by the Standing Order at least one packet of matches would have been taken from Michas and the possibility of a successful suicide attempt reduced. 37. Reference was also made to the breach of provisions of the Standing Order found in Exhibit 7, referred to by Mr. Morris as an "overarching Standing Order." We were referred to Mr. Morris' evidence that the purpose of that Standing Order was to ensure that staff would be vigilant and would use good judgement and common sense and make appropriate decisions in managing inmates. Where they were unsure as to a proper course of conduct, they should request assistance fr6m supervision. 38. We were asked to resolve any conflict between the evidence of C.O.'s Ricker and Selkirk in favour of Ricker as it related to whether Michas was searched before being placed in cell #9 in Segregation, as to the nature of the search conducted, and as to the location of Ricker at the time. That is, we were asked to find that no search of any kind had been conducted, and that there was no attempt to clean cell #9 or to search it. We were also asked to accept the evidence of C.O. Ricker that he was at the door of cell ~9 when Michas was placed in that cell. 170 39. We were also asked to note that in the statement given by C.O. Selkirk to Inspector Ryan (pp. 154-156 of Exhibit 5) there is no indication that Ricker did not~ follow Standing Orders as was alleged in C.O. Selkirk's viva voce evidence. We were asked to find that the evidence of the Grievor indicated that it was significant to him whesther C.O. Ricker was present or not when Michas was placed in cell #9. 40. We were also asked to note the statement of the Grievor given on September 17, 1991, at pp. 157-8 of Exhibit 5, where he stated, at p. 158, that he only removed the shoes from Michas' cell when Nurse Moccia examined him at-approximately 1130 hours. 41. We were asked to note the statement of C.O. Ricker, at p. 162 of Exhibit 5, given on September 13, 1991, that Michas proceeded into the cell wearing shoes and was ordered out of the cell by Ricker, at which time the shoes were removed. 42. We were also directed to the statement of Nurse Moccia, given on September 17, 1991, where he stated, at p. 185, that while he couldn't say for sure whether Selkirk had removed a pair or,shoes from Michas' cell, .at the ti~e in question, he saw Selkirk "kick something out of the cell." We were asked to draw the conclusion that Michas was then permitted to wear shoes in the cell, it being. submitted there was no substantial disagreement about this fact. The only difference, was said to be about the time when the shoes 171 were removed. This evidence was relied upon to substantiate Ricker's evidence that he was outside of cell ~9 when Michas was placed in it, and as support for Ricker's claim that he did not remain at the door to Segregation after delivering Michas to C.O. Selkirk. Such a conclusion was said to support Ricker's evidence that no search had been conducted by Selkirk of Michas or of cell #9. 43. It was submitted that it would be difficult for a correctional officer, even an experienced one, to search an inmate alone at any time in Segregation. -f 44. We were asked to recall the evidence of C.O. MacLeod who stated that inmates in Segregation could be dangerous. We were also asked to conclude that inmate being on a suicide watch did not alter this fact. 45. We were asked, in all of the circumstances, to conclude that the penalty imposed on the Grievor fell within the range of "reasonable responses." 46. We were referred to Digennaro, 10~3/81. etc. (Samuels) , a case involving four grievances, two of which related to ten-day suspensions and a discharge meted out to the grievor after two incidents. Reliance was had on the fo]lowing statement found at p. 8 of the decision: 172 In my view, a review of the cases and text commentary would serve no purpose here. I have made that. review and it suffices to ~ay that the question of just cause for discipline depends on the facts of the particular case, the impression the parties make on the Board of Arbitration (and what this says about the future prospects of the grievor in the same employment), and the sense of justice of the arbitrator. 47. Reference was also made tg. Bisson, 776/89 (Fisher). In that case the grievor was a C02 a't the Ottawa-Carlton Detention Centre and was on the shift commencing at 18:45 hours, and was required to perform a shift changeover at 22:45 hours. In order to properly perform the shift changeover, the Grievor had to enter a wing and perform a physical count of the inmates and record the count in a log book. Before he could enter the cell block, he was required to have a backup officer stand by the door. Reliance was had on the following from pp. 1-2: ... Therefore, rather than speaking to the Shift Supervisor, Bill McQueen about obtaining a proper back- up, the grievor simply went up to the window of 3 Wing and counted the inmates. He counted a total of 21 inmates in both wings, which number corresponded with the log book. The grievor admitted that his count through the window could well have been wrong as the inmates were moving around alot. In fact his count was probably wrong, as the evidence shows that at the time an inmate named Michael Sienkiewich was probably lying in the 3 Wing washroom, beaten to a pulp by his fellow inmates. The grievor could not see the washroom from the window of 3 Wing and had he condueted~ a proper search, he undoubtedly would have found Mr. Sienkiewich. The evidence shows that it is impossible to tell whether or not Mr. Sienkiewich was dead at the time the grievor failed to perform a proper head count, or if he was alive, whether medical intervention at that time would have saved his life. It is clear from the evidence, however that the beating of Mr. Sienkiewich 173 commenced a few hours prior to the grievor's negligent head count. -- In any event, it is not strictly relevant to determine whether or not the grievor's negligent performance of his duty directly resulted in the inmate's death. There is no doubt that the performance of a proper head count was a key part of the C.O.'s duty and one whose purpose it was to prevent exactly the sort of thing that happened in this case. 48. Reference was made to the argument of the union to lessen the penalty that the Board considered appropriate based on the fact that: "Other people ... also failed to perform their duties properly [and] were not disciplined." 49. Reference was made to the statement of the board at p. 4: There is no doubt that the offence committed by the grievor is a serious one, in fact the duty to do a proper count lies at the heart of a C.O. duties. It is not a mere administrative matter as it directly affects the health and wellbeing of the inmates, the staff and, in the case of an undiscovered escape, the public. 50. Reference also was made to the statement of the board at pp. 4-5: On the other hand, the' act of the grievor was not intended to do harm, he was simply careless. We know he is capable of doing better, as his previous nine year record shows. Although in the past he received a two day suspension for an offence,~he~'was allowed to put in extra overtime to make up his loss. This was done with the Superintendent'~ knowledge. This act of generosity unfortunately takes away whatever value the suspension was supposed to. have. The offending employee is supposed to suffer an economic loss for his misdeeds. In Mr. Bisson's case he simply got two days off and earned back his loss at a later time. This is hardly the sort of thing that would impress upon Mr. Bisson the error of his ways. Mr. Bisson obviously needs something ~.more than a short suspension to bring home to him the serious and 174 quite possible life-threatening consequences of his actions, however, having considered all the relevant factors, a discharge is too severe. 51. It was noted that the grievor in Bisson (at p. 3) was reinstated and a 30-day suspension substituted. 52. We were also referred to the statement at p. 9 of Ant]e, 66/76 (Beatty): In the result, it remains only for this Board to determine whether, in all of the circumstances, the penalties imposed were just and reasonable4 On that issue this Board has noted, in its previous awards that it has, by virtue of s. 18(3) of The Crown Employees gollective Bargaining Act, the unfettered discretion to amend or modify a disciplinary penalty which it perceives to be excessive. However where, as here, the penalties imposed "fell within the range of reasonable disciplinary responses to the situation" (Re International Nickel Co. of Canada Ltd. (1968) 19 L.A.C. 118 (Weatherill)) ... we would not, in the usual case, be inclined to interfere with such sanctions. 53. Reference was also made to Russell, 52/77 (Swan), where the Board stated, at p. 4: The Board is thus faced with a complete conflict of evidence, and it might be appropriate for us to observe that we find this kind of conflict the most 'distasteful aspect of disciplinary arbitration cases. The conflict is so complete that both stories cannot be believed, and the Board is thus forced to make its decision on the grounds of credibility. The credibility of witnesses is always extremely difficult to assess, and we have even less to assist us in the way of surrounding objective evidence than is usually the case. The law .does not clothe us "with a divine insight into the hearts and minds of the witnesses" as Mr. Justice O'Hal]oran of the British Columbia Court of Appeal put the problem in Faryna v. ~horney [1952] 2 D.L.R. 354, at 358. We must therefore attempt to come to our conclusion on the basis of all of 175 the evidence and in accordance with the preponderance of probabilities in the case. 54. Reference was al'so made to the statement at pp. 5-6 of Russell: ... Because of the position taken by the grievor, however, any evidence which might have gone to mitigate the penalty imposed was not available to us. Finally, of course, as the Board clearly stated in Re Harris 7/75 at p. 21, we are unwilling to exercise our remedial authority on behalf of a grievor in a case where we are unable to believe the grievor's testimony. This position of the Board is a firm one, although it is one which ought to be exercised carefully. It is not every conflict of evidence which will give rise to its operation, since people see events from such differing perspectives that they may quite honestly give differing accounts of those events. Nevertheless, where a grievor's evidence cannot be believed in circumstances which amount to a disregard for the quasi-judicial nature of the proceedings before the Board and for the vital importance of sworn testimony in such proceedings, the Board will not use its discretionary power to interfere with the penalty imposed. We consider this to be such a case. Argument of the Union Mr. Bevan made the following submissions: 1. Credibility was said not to be a significant issue in this case. It was submitted that the only factual dispute as to the G~ievor's conduct in Segregation at the material times related to his search of Michas and the reasons for not carrying out a strip search. It was further submitted that the Employer ought not now to be permitted to argue credibility with respect to matters relating 176 to the Grievor's conduct that it was aware of but had ~ot previously raised. 2. It was submitted that C~O. Ricker did not file an Occurrence Report and testified that he had been told by Inspector Ryan that it was unnecessary to do so. The first time that C.O. Ricker was spoken to about the incident was nine days later when he was interviewed by Inspector Ryan. 3. The Grievor filed an Occurrence Report the day after the incident which was said to be consistent with the statements given to Inspector Ryan and with his evidence at the hearing. 4. We are also asked to note that when presented with the typed document, alleged to be the statementI given by him to Inspector Ryan, C.O. Ricker testified that it was not the same statement that he had given earlier to Inspector Ryan. It was noted that the hearing had to recess in order to obtain Inspector Ryan's handwritten notes of his interview with C.O. Ricker. Mr. Bevan also stated that no attempt was made by the Employer to have the handwritten notes entered as exhibits at the hearing. We were also asked to note that in the original the handwritten notes of Inspector Ryan, C.O. Ricker indicated that he could not remember whether he had accompanied C.O. Selkirk along with Michas to cell #9, and that the "Yes" answer was indefinite. We were also asked to note that there were a number of other portions that were struck 177 out and "corrected." Based on the way in which the questions w~e asked of Ricker after he gave an answer which Inspector Ryan found to be unsatisfactory, and based on the editing of the final statement, we were asked to conclude that Inspector Ryan's investigation was not entirely objective. There' w~s some indication that Ricker did not recall ~hat he had done at the material times and his final "answers" were the result of his responding to suggestions from Inspector Ryan, none of which appeared in the typewritten statements. We were asked to find that Ricker's recollection was unclear and only became "clear" when he was prodded by Inspector Ryan. 5. We were also asked to note that in the typewritten statement of September 13, 1991 (at p. 162 of Exhibit 5) C.O. Ricker did not really answer the question: "Did you mention to seg. officer Mr. Selkirk that he [Michas] was suicidal?" We were asked to recall that the handwritten document was even less specific and that there was no mention about Michas being suicidal. 6. We were also asked to find that the evidence of Nurse Moccia supports that of the Grievor and not that of C.O. Ricker. in relation to the issue of when Michas' shoes were removed from the cell. 7. It was submitted that there was no benefit to the Grievor in stating that he placed Michas in the cell without support as such 178 behaviour could lead to discipline. We were also asked to find that the Grievor was forthcoming in his evidence even when it could be held against him. 8. On the other hand, there was an advantage for C.O. Ricker to state that he accompanied the Grievor and Michas, as he would have been in violation of the Standing Orders if he had failed 'to do so. 9. We were asked to find that the evidence had disclosed a well- developed practice in the Centre that did not require that an inmate be placed in baby dolls unless a specific order was given ~y medical personnel or by someone in supervision. 10. If we found that the Grievor had violated the Standing Orders by permitting Michas to remain in blues, then such a violation was committed by .every other person who observed Michas. Except for Sgt. Swain and the Grievor, no other person who observed Michas in blues was either disciplined or spoken to about this allegedly improper conduct. 11. Counsel for the Union noted the apparent conflict between Standing Order section E, p. 28, para. 3.2, regarding placing inmates in Segregation in a security gown and Standing Order section S, p. 11, para. 4.4, which appears to require that an inmate on medical/suicidal watch be placed in a security gqwn only if "high risk". Paragraph 4.4 provides that "low risk" inmates are 179 to be given "gym clothes." We were asked to find that the noted Standing Orders were "contradictory." It was submitted that there had been no explanation given by the Employer as to how the high/low risk provisions of the Standing Orders would apply to Michas nor to reconcile the contradictions between the Orders. It was observed that the Employer called no evidence as to the status of Michas: whether he was to be treated as a high or low risk inmate. 12. We were also asked to note that Inspector Ryan was unfamiliar with the high/low risk differentiation, and had failed to check with the Employer about the implication of the designations on the facts before him. He indicated that he had spoken to some CO2's about the matter but was unaware of'whether Michas was high or low risk. 13. Mr. Bevan noted that Sgt. Swain had indica6~d that he did not know whether Michas had been assessed as high or low risk. 14. We were reminded of the confusion expressed by Lt. Hardwick concerning who was responsible for designating suicida'l inmates as being either high or low risk. 15. The Board was asked to consider Lt. Hardwick's agreement with the newspaper account in the Hamilton Spectator of June 20, 1992 (Exhibit 11) that some of the confusion that led to Michas 180 remaining in blues "may have arisen because at the time the jail had low and high risk suicide watches. On a low risk watch an inmate could wear regular jail clothing." 16. it was submitted that we shoud bear in mind that C.O.'s Ricker, MacLeod and Entwisle, all of whom were called as witnesses by the Employer, testified that they would not automatically place inmates on a suicide watch in baby dolls unless instructed to do so by management. In the absence of instructions the inmate was a~lowed to remain in blues. 17. We were asked to note the unchallenged evidence of C.O. MacLeod, who had many years of experience in A&D and the Segregation area, supporting the practice followed by the Grievor. It was submitted that the Grievor should not be held to a higher standard than any of the other staff. 18. It was submitted that the change in the Standing Orders requiring that all inmates on a suicide watch be placed in baby dolls was a direct result of the Michas incident, and that it changed an existing practice. 19. If the previous Standing Order was "clear and unambiguous" why did the Employer have to change it? 181 20. It was submitted that this was not a case where the Grievor was unsure about whether Michas should be dressed in baby dolls. He was following a practice that was welt understood and that continued without complaint from management for more than ten years according to the evidence of C.O. McLeod. 21. The Grievor was functioning in a situation where there were two contradictory Standing Orders, and management did nothing to resolve the problem that arose when an inmate on a suicide watch wa~-~br0ught to Segregation and a decision had to be made as to which Order should be followed. We were asked to find that a practice had arisen to deal with this situation, which practice was known to and countenanced by management. In the circumstances, it was said to be unjust to penalize a correctional officer' for following it. 22. Referring to Standing Order S, p. 7, para. 3.3, found at p. 44 of Exhibit 5, it was submitted that no strip search was conducted of Michas because the identification card accompanying him to Segregation gave no indication that he was other than a new admission to A&D. There might have been a reason for Selkirk to strip search Michas if there w~s a notation that he had been admitted to Segregation from some other area other than A&D, where it was expected he would have been recently strip searched. 182 Although Michas had been admitted the night before (September 4, 199t), and had been housed in the A&D holding cells, there was no notation or advice from Lt. McCucci, the Shift I/C on September 5, 1991 at the commencement of the day shift, con'cerning Michas. c.o. Selkirk, upon examining the roster, saw that he had been assigned to Segregation and went there directly from the morning briefing w~thout having been informed of the material facts about Michas' situation. 23. Reference was made to the evidence of C.O. Entwisle, who said that he was assigned to A&D day shift on September 5~ 1991. Entwisle testified that he did not see Michas (whose name he did not know at the time) before he (Michas) was brought to the front of the A&D area during the morning of September 5th before being sent to the hospital. 24. It was also submitted that C.O. Ricker, when he brought Michas to the door of the Segregation area during the morning of September 5th, did not tell the Grievor that Michas had been admitted to A&D the previous night and had just been escorted from the medical unit. It was said to be natural for the Grievor to assume that Michas was a new admission from A&D being transferred to Segregation. 25. We were asked to find that Messrs. Morris, Swain and Hardwick, were in agreement that it was normal neither to strip search nor 183 place an inmate in fresh clothing in Segregation when that inmate was a new admission to A&D being transferred to Segregation. As the Grievor had every reason to conclude that Michas was a new arrival from A&D, there was no reason to strip search him before placing him in a Segregation cell. It was submitted that there was an obligation to have informed the Grievor that Michas had not been recently strip searched and was not a new arrival in A&D being transferred to Segregation. 26. It was submitted that if the Grievor was guilty of violations of Standing Orders, than so were many other persons who were neither disciplined nor even spoken to. The Grievor should-not have been singled out or held to a higher standard than other employees. The information with respect to the breaches byother employees was readily available to the Employer from the investigation conducted by Inspector Ryan and from the Suicide Watch Sheets and Segregation Log. If the Grievor was in viola%ion of Standing Order section E, p. 28, para. 3.2, in failing to see that Michas was placed in a security gown, then at least ten other officers had also violated the Order. These.officers saw Michas wearing blues and did nothing to have him changed into baby dolls. C.O. Ricker brought Michas to Segregation in circumstances where he was aware, or ought to have been awar~, that Michas was on 184 a suicide watch. Ricker also did nothing to see that Michas was placed in baby dolls when he (Michas) was escorted to Segregation on the morning of September 5, 1991. Furthermore, Ricker failed to complete an Occurrence Report, on his own, that Michas had not been placed in baby dolls. Not only was C.O.. Ricker not disciplined, he was not even spoken to about his actions. 27. C.O. Meinert relieved the Grievor at 1445 hours and remained in charge of Segregation until 2100 hours. He did not change Michas into baby dolls or report that he was inappropriately dressed. Meinert made numerous checks of Michas and neither changed him into baby dolls nor reported the matter to supervision. 28. Reference was made to the evidence of Mr. Morris, who testified that he had different expectations for an experienced officer such as the Grievor and for inexperienced officers such as C.O.'s McLean and Meinert. It was noted that Mr. Morris agreed that he expected even less experienced officers, such as C.O.'s McLean and Meinert~ to be familiar with the Standing Orders and that even more junior correctional officers were expected to abide by Standing Orders. 29. The Board's attention was drawn to Exhibit 13, being a letter dated October 28, 1991, to C.O. Meinert, from Mr. Morris, reminding him: ... of the necessity to review the Standing Orders and be thoroughly familiar with their contents. You are also 185 advised that at any time you become aware Of inconsistencies or have concerns, you bring these to the attention of your supervisor. This is especially imperative in those cases where safety or security is involved. 30. It was also noted that the following statement contained in the letter could not be accurate: After careful consideration of the information supplied at the meeting, I have determined that the allegation is not supported and find you free from wrongdoing in this matter. The allegation being dealt with was that Mr. Meinert'~ on or about September 5, 1.991 was: · .. negligent in the performance of [his] duties and failed to follow H.W.D.C. Standing Orders, thereby contributing to the death of an incarcerate, Mr. J. Michas. We were reminded of Mr. Morris' evidence that he might have "overstated" Meinert's innocence. It was submitted that Mr. Morris' evidence disclosed that the "mentality" of the Employer was geared to "nailing" the Grievor. It was aware that Meinert had not changed Michas into baby dolls even though he (Meinert) was in SEgregation for six hours. The Employer was said to have had its "sights" on the Grievor to such an extent that it failed to adequately consider' the actions of other staff and the extent of their responsibility in the matter of Michas' suicide. 31.. Reference was made to C.O. McLean having relieved the Grievor for a lunch break and C.O. Meinert for a supper break. C.O. McLean conducted approximately five tours of Segregation and failed to 186 change Michas into baby dolls, did not ask his supervisor about what he should do in the circumstances, and he was not disciplined. 32. C.O. Harbutt, who had considerable experience working in Segregation, relieved C.O. Meinert at 2100 hours and was supposed to conduct at least two tours, during which he should have seen that Michas was dressed in blues. He did not ask his supervisors what he should do in the circumstances and was neither disciplined nor counselled. 33. Lt. McCucci, the Shift I/C, also violated the Standing Order in neglecting to tour the area twice during his shift as he was supposed to do. If he had done so, he would have seen that Michas was dressed in blues and arranged to have him changed into baby dolls. 34. Lt. Hardwick also failed to conduct a tour as required when he relieved Lt. McCucci. If he had done so, he would have seen the situation and arranged for Michas to be changed into baby dolls. 35. Both Lt. McCucci and Lt. Hardwick were long time employees and were not disciplined. Mr. Morris admitted that he had not looked into the "area" of their possible breaches. 187 36. Reference was also made to the three nurses who performed tours of Segregation and reported the situation to be normal, even though Michas, an inmate on suicide watch, was dressed in blues. 37. Mr. Morris indicated that he accepted Nurse Moccia's explanation, that when he observed Michas inapropriatety dressed in blues, he expected that he would shortly be placed in baby dolls. Even if this were the case, it did not excuse Moccia Who should have done more than rely on some unnamed person to set things right. As ~an example of Mr. Morris having failed to carefully consider all'of the facts, it was noted that he acknowledged that he did not consider the fact that Michas had been in Segregation for a number of hours, prior to being seen by Nurse Moccia. 38. It was also submitted that C.O. Entwisle should have been aware that M~chas was on a suicide watch, as he acknowledged that he had seen Michas earlier in the day wearing baby dolls (on September 5, 1991) covered in blood. 39. It was submitted that if anyone of the noted persons had acted in accordance with the Employer's view of the Standing Orders,'they would have placed Michas in baby dolls or arranged for someone to do it. None of them did so, and none of them were disciplined. ]88 40. Among the arguments supporting the position that Lt. Hardwick had treated Michas as a low risk inmate was the fact that Michas was permitted to have a booklet of matches. This, it was submitted, meant that the Grievor had not violated the Standing Order. If we did not accept this conclusion, we were asked to consider the fact that neither Hardwick nor Entwis]e were disciplined. 41. It was also submitted that Hardwick was not disciplined for giving Michas a mattress, which was contrary to the Standing Orders. 42. It was submitted that at least six other persons were guilty of failing to maintain the 15 minute suicide watch. 43. Reference was made to the fact that when Micbas arrived in A&D on September 4, 1991, he was placed on a suicide watch (see p. 137, Exhibit 5). C.O.'s Harbutt, Higgins and Iacaviello, who were working the night shift in A&D at the time all carried out tours, and the evidence disclosed that the time between tours exceeded the 15 minute time limit. The noted officers were not disciplined or spoken to about their conduct. It was noted that Michas injured himself on the evening that he was first admitted to A&D. It was suggested that if the officers in A&D.at the time had carried out the required 15 minute suicide watch, they might have noticed a problem with Michas and the injury would not have occurred. 189 44. We were reminded of the fact that on the next day, September 5, 1991, c.o.'s Meinert, McLean and Harbutt (see p. 135 of Exhibit 5) were responsible for the suicide watch clock rounds, and the average time between rounds was 20 minutes rather than the 15 minutes required, the elapsed time between rounds in one instance being 27 minutes (at the time Michas was found to have set himself on fire). None of the noted correctional officers were disciplined or cautioned about their behaviour. 45, Our attention was drawn to the evidence of Lt. Hardwick, who stated that the practice that had developed over time differed from the requirements of the Standing Orders, in that it was not always possible to perform ten to lB minute suicide watch rounds. He spoke of the reality of the workplace as contrasted with the theory of the Shandin9 Order. c.O.'s MacLeod and Ricker agreed that it was frequently not possible to perform ten to 15 minute suicide rounds because of other more. pressing duties, and they testified that they were never told that the practice was wrong. 46. In referring to Mr. Morris' reason for not disciplining correctional officers who had only breached one Standing Order, Mr. Bevan stated tha[L~he was unaware of any ".three strikes" rule before discipline could be imposed, and urged us to find that the Employer could not excuse the approximately 15 other employees who had breached at least one Standing Order and find the Gri'evor "guilty." 190 47. We were also asked to note Mr. Morris' statement that "on reflection" C.O. Ricker should also have been disciplined for failure to see that Michas was strip searched. It was noted that all of the information about all of the officers, nurses and members of management was before Mr. Morris when he disciplined C.O. Selkirk. 48. It was noted that C.O. Ricker, on the standard expected by the Employer, did not strip search Michas or place him in baby dolls. Notwithstanding, he was neither disciplined nor spoken to about his actions. 49. Reference was also made to the fact that C.O.'s Ricker and Ridgers escorted Michas to the hospital and did not strip search him on returning him to A&D, and neither of them was disciplined. 50. Reference was made to the evidence of C.O. Entwisle, who stated that he believed that Michas was a new arrival who was not on a suicide watch. We were asked to consider why the Employer had excused the actions of Entwiste and not those of the Grievor. It was suggested that C.O. Entwisle had "started the whole ball rolling by giving matches to Michas." We were asked to reject the Employer's excuse that the Grievor was the culprit because he could have and should have found the matches if he had conducted a strip search of Michas. It was noted that C.O. Entwisle's suspicions should have been aroused when he observed Michas "covered in 191 blood." When Michas was placed in blues from baby dolls prior to being sent to the hospital, C.O. Entwisle should have known that he was on a suicide watch. Yet Entwisle was apparently~ never disciplined or spoken to about his conduct, even though he was a more experienced officer than the Grievor. 51. We were directed to Mr. Morris' evidence 'that the "overarching" Standing Order set out in Exhibit 7 was breached when any other Standing Order was violated. Accordingly, we were asked to find.that the breach of any single Standing Order also amounted to a violation of the Standing Orders set out.in Exhibit 7. Hence, one violation became two violations. In the circumstances, if the Grievor was guilty of a violation of the Standing Order set out in Exhibit 7, then so were Lt. McCucci, Lt. Hardwick, C.O. Ricker and C.O. Meinert~ among others. In the circumstances, we were asked to give "no weight" to the alleged violation of the Standing Orders set out in ~xhibit 7. 52. Reference was made to the letter of October 30, 1991 to Sgt. Swain from Mr. Morris imposing a ten day suspension and to the statement at p. 2 of the lette~: · .. I wish to make you aware that the standard of review· for managers is greater than for those whom they supervise ..... If that was the case, we were asked to consider why managers such as Lt. McCucci and Lt. Hardwick were neither disciplined nor spoken to about their violations of the Standing Orders. 192 53. We were also asked to note that the Suicide Watch Sh~t commencing at 2120 hours on September 4, 1991 (see p. 137 of Exhibit 5) did not continue after 0610 hours on September 5, 1991. The watch began again at 1134 hours on September 5, 1991, when Michas was placed in a Segregation cell. It appears that from 0610 hours to 0900 hours no Suicide Watch Sheet was maintained, although the suicide watch had not been cancelled. Ms. Scanlen, the Health Unit Supervisor, testified that the watch should have been continued but no explanation was given for the three hour gap in doing so. If it had been continued, as it should have been, C.O. Entwisle would have known that Michas was. on a suicide watch and, according to the expectations of the Employer, should have placed Michas in baby dolls and, certainly, would not have furnished him with matches. We were asked to conclude that some manager or CO, without authority, stopped the suicide watch as no evidence was called to explain the gap. . 54. We were also asked to consider that C.O. Meinert, who was in charge of the evening shift in Segregation on September 5, 1991, did not observe inmate Morin passing a booklet of match~ to Michas. Inspector Ryan testified that he believed that such an incident had occurred, and two packets of matches were found in cell ~9. 193 55. It was noted that C.O. Meinert was neither questioned nor disciplined as a result of his permitting the matches to be passed by Morin to Michas. 56. Reference was made to the fact that C.O. Harbutt took over the Segregation shift at 2100 hours from C.O. Meinert on September 5, 1991. The computer printout of the clock rounds indicated that no chock round had been made from 2052 hours until 2120 hours, a period of approximately one half hour, when suicide watch rounds are supposed to be conducted at no longer than 15 minute intervals. It was suggested that if C.O. Harbutt had conducted the rounds, as he was supposed to have done, Michas' ipreparations to set himself on fire might have been discovered. It was suggested that Harbutt was the last person who could have "done something" to prevent the tragedy that occurred. 57. Mr. Bevan pointed to the failures on the part of C.O.'s Meinert, Mclean and Harbutt to do something about Michas' situation, if the Grievor was guilty of violating Standing Order section S, p. 2, para, 2.3, then so were the named officers as they each failed: ... at the commencement of [their] shift or during relief periods... [to] familiarize themselves with the status of each inmate in the Unit and ensure that the necessary requirements pertaining.to each inmate are met. 194 Based on the evidence, we were asked to find that Meinert was guilty of five violations and Mclean and Harbutt were each guilty of four. 58. It was submitted that even if the Employer's argument was accepted - that the other officers and managers had only committed one violation of a Standing Order - with the exception of Sgt. Swain, they were not even reprimanded. It was submitted that some of them were more responsible than the Grievor for what had happened and, in the circumstances, the Grievor ought no~ to have been singled out for discipline. 59. The Union referred to a number of authorities: a) Re Iron Ore of Canada (1970), 1t L.A.C. (2d) 16 (Harris) at p. 25: The company is, consequently, clearly within its rights when it imposes discipline upon tho~e who are obviously guilty of any of those activities for which disciplinary procedures are considered, by practice throughout industry and by the majority of arbitrators, to be appropriate. It loses those rights either when it can be shown that the selection of employees for ~< ..... ~discipline was indiscriminate or random; or when it can be demonstrated that, having identified a number of offenders, it chooses for discipline not all of those so identified, but rather a selected number - perhaps for the purpose of setting an example, perhaps because of a prejudice against one or more employees, perhaps for any one of several possible reasons. If indeed an employer follows such a course of action, he will have acted in a discriminatory, arbitrary, or capricious manner and most arbitrators would overturn his decisions. If, on the other hand, he selects for discipline all those clearly identified as having been active as defined above and in whose cases available evidence clearly supports the identifications; and if he does so without prejudice, without exception, without favour; then his decisions 195 could not be successfu]iy cha'llenged even though a number of equally guilty offenders have gone undetected. b) Re Goodyear Canada Inc. (1977), 14 L.A.C. (2d) 340 (Burkett) at p. 345: The standard practice of the company is to discipline a crew in respect of production errors when it cannot assign blame to a single member of the crew. The company is therefore cognizant of the requirement for even-handed, non-discriminatory treatment as a requirement of just cause. In the circumstances of the instant case the board must find that the company, in singling out the grievor as responsible for the production error, has deviated from its practice and has not adhered to the requirement for even-handed treatment. The grievor after setting the skiver was responsible for cementing the ends of the treads and thereafter shared a responsibility with the other members of the crew for the spot-checking of the lengths. The company was aware of this fact and upon even a cursory investigation would also have been aware of the relative inexperience of the other members of the crew and the failure of the supervisor to instruct the other members of the crew and to assign a quality inspector or to assume the function himself. The board is compelled to find that the company in singling out the grievor for punishment discriminated against him. Even if we were to find, as the company suggests we should, that the grievor wrongly set the skiver .15 above tolerance and was therefore directly responsible for the uniform over-cutting of all 400 treads, the fact remains that his error should have been detected by others on the crew, or more importantly, by the quality inspector if he had been assigned. It follows that even if the board were to find that the grievor improperly set the skiver it would nevertheless be compelled to conclude tha~ the company could not single out the grievor and at the same time sustain its right to discipline. c) Re Magic Pantry Foods (1990), 10 L.A.C. (4th) 327 (O'Shea) at pp. 332-4: The union took the position that in order to establish just cause there must be equality of treatment and proportionality of penalty where similar circumstances of improper conduct exist. In support of 196 its position the Union referred to the reasoning in the following cases: Re Julius Resnick Canada Ltd. and Int'l Leather~oods~ Plastics & Novelty Workers, Loc. 9 (1973), 3 L.A.C. (2d) 247 (Carter); Re Goodyear Canada Inc. and U.R.W., Loc. 232 (1977), 14 L.A,C. (2d) 340 (Burkett); Re Partek Insulations Ltd. and C.A.W., Loc. 456 (1989), 3 L.A.C. (4th) 193 (Verity); Re Oshawa Ltd. {©ntario Product Co., Oshawa Foods Division) and Teamsters Union, Loc. 419 (1988), 33 L.A.C. (3d) 97 (Knopf). The union argued that in the present case the company singled out the three griev0rs for discharge whose activities differed very littleL in nature and extent from the improper activities of others who were dealt with very leniently by the company. This disparity of penalties, wa~ grossly unfair and unjust, in the union's view. The union also argued that. the nature of the investigation also tended to be unfair since Mr. Keddy was paired off with Mr. Guitar with whom he spent most of his time at work and Mr. Keddy only had occasion to see the other employees on the crew during their break periods or lunch periods or if he happened to walk through the plant. Mr. Keddy therefore never had the opportunity to observe each member of the crew equally. Having considered all the evidence and the representations of the parties I find that if the evidence of misconduct by each of the three grievors was considered in isolation, I would have no difficulty in finding that their misconduct established just cause for their dismissal. The use of drugs a~d alcohol during working hours is not only dangerous but creates a state of mind where anything or anyone who appears to threaten the practice of using alcohol and drugs is perceived to be an enemy and this usually leads to insubordination or worse~ Indeed, the majority of time-keeping infractions were directly connected with the use of alcohol and drugs during working hours. However, this case is not a case where the misconduct of the grievors can be considered in isolation. Their misconduct is recorded in Mr. Keddy's report which also records the misconduct of many other employees on the sanitation crew. Mr. Hatt, Mr. Cormier, Mr. Porchina were reported as having engaged in misco6duct which, if considered in isolation, would also have justified discharge since their misconduct involved drinking and drug offences as well as time-keeping offences. Other employees also were involved with drinking and drugs but to a lesser extent. Mr. Chan and Mr. Dorcas were identified by Mr. Keddy as the worst offenders for the misappropriation and theft of company product. Had Mr. 'Smook not condoned such activity, they too would be subject to very severe discipline. 197 It must be recognized' that the lack of proper supervision by Mr. Smook contributed to the conduct of the employees as recorded by Mr. Keddy. The party atmosphere which prevailed at every opportunity so pervaded the plant that the rules of the company were completely ignored with perverse regularity. I recognize that when faced with this situation the company could not clean house and discharge almost the entire sanitation crew since the company had a business to operate and it would be virtually impossible to train a replacement crew and still meet production schedules. Faced with this chaotic situation the company reacted by discharging the three grievors and administering verbal warnings to the other miscreants. While the company's actions may be somewhat understandable in the circumstances, I find the disparity of penalties for the same types of misconduct to be grossly unfair. Even though I have no real sympathy for the grievors, in the application of the just cause provisions of the collective agreement and in view of the lack of proportionality of penalties I find that in the exercise of my discretionary authority under the provisions of s. 44(9) of the Labour Relations Act that I must substitute a lesser penalty in this case for the penalty of discharge. Although the company argued that the grievors should not be reinstated for the reasons in the cases cited above, I cannot subscribe to that argument in this case, not only because Mr. Smook failed to give proper direction and supervision to the sanitation crew but also because of the lack of proportionality of penalties. Again, I find that the evidence failed to establish that the grievors had any real leadership role in the misconduct that was engaged in by the sanitation crew. There were two other stewards who also engaged in misconduct, especially Mr. Bixby who committed alcohol, drug and time-keeping offences (albeit less frequently than Mr. Sheratt) and Mr. Bixby only received a verbal warning. d) Re Partek Insulations Ltd. (1989), 3 L.A.C. (4th) 193 (Verity) at p. 197: There are, however, certain mitigating factors which cannot be ignored. In determining just cause, the role played by the employer may, in certain circumstances, be a significant factor. There are several matters that warrant comment. Ken Matthews supervised the crew on the day in question. For whatever the reason, Mr. Matthews was not called upon to testify. Therefore, the nature 198 and extent of the supervision provided by management is unknown-. Undoubtedly, proper supervision by-management may have reduced the likelihood of this type of conduct taking place. However, the major concern relates to the universal precept of fairness and justice. There must be some form of equality of treatment between employees who engage in the same or similar conduct for which discipline was imposed; see, generally, Re Canadian Droadcastin~ Corp. and C.U.P.E. (1979), 23 L.A.C. (2d) 32 (Shime); Re Etobicoke General Hospital and O.N.A. (1977), 15 L.A.C. (2d) 172 (Brandt), and Re Goodyear Canada Inc. and United Rubber Workers, Loc. 232 (1977), 14 L.A.C (2d) 340 (Burkett). The board stated further, at p. 198: In these particular circumstances, the evidenc~ satisfies me that [certain named employees} engaged in similar conduct [to that of the grievor], but not to the same degree, and yet received no discipline at all. It appears to me that the employer has unintentionally discriminated against the grievor. e) Ontario Cancer Institute.(inc~rporating the Princess Margaret Hospital) Volume 28, No. 9, November 1992, Lancaster Labour Reports - Labour Arbitration News, Paula Knopf, sole arbitrator, July 30, 1992 (18 pp.). Excerpted from the decision, at p. 3 of the Labour Arbitration News, is the statement: Arbitrators have long held that the purpose of discipline is to correct, not penalize and that there must be a consistency in the application of discipline by an employer. There must be some semblance of equality of treatment between employees who engage in similar conduct for which an employer imposes discipline ... [T]he wide chasm between Mike's letter of warning and the grievor's discharge is too great to be justified in terms of equality of disciplinary treatment. f) Lloyd W. Abbott 58/83, 63/83 Brent. At pp. 3-4, the board stated: 199 We do not consider that any of the other allegations made against the grievor regarding his conduct that night would be just cause for discharge, and in particular, we consider that most of the allegations concerning failure to log have been shown to be so out of line with the practice of most officers that it would be unreasonable to hold the grievor to a higher standard than that which other officers meet. We do, however, consider that the grievor's logging habits are somewhat ~loppy and that, in particular, he should have indicated on the log when he was absent from his area on the third level and another officer was responsible for it. g) Straughn, 510/91 (Dissanayake). Reference was made to the statement of the board at p. 13: In summary, we find on the basis of all of the evidence that there was a general misunderstanding among the correctional officers as to the policy governing hospital visits. The grievor acted in accordance with this incorrect understanding, as did Ms. Lyons. We also find that given the common misunderstanding, the grievor's conduct, was no more culpable than Ms. Lyons or the other two officers who were responsible for the prior escape in August 1990. By imposing a greater penalty on the grievor in the circumstances, the employer discriminated against him without justification. Reference was also made to the statement of the Board at p. 12: In these circumstances, to impose a greater penalty on the grievor is to penalize him simply because of his greater experience, which is the same as his greater seniority. In a regime of collective bargaining, one of the most precious assets an employee can acquire is seniority. The usual rule is, the greater the seniority, the.greater the job security and benefits. One situation where seniority works to an employee's advantage is in mitigating disciplinary penalties. In assessing the appropriateness of the degree of discipline, greater seniority is regarded as a mitigating factor. In the particular circumstances here, when the length of service was of no significance in relation to the culpability of his conduct, the grievor's greater seniority worked to his disadvantage. He was subjected to harsher discipline, simply because he had greater seniority. This in our view is not justifiable. 2OO Reference was also made to the statement of 'the Board at p. 11: On the facts before us there is no justification in treating the grievor's conduct as deserving of a more severe response. The evidence indicates that the grievor's experience did not place him in any different position than Ms. Lyons or the other two officers, as to the obligations during a hospital escort. The evidence of the employer is that all correctional officers were familiarized with the employer's policy relating to escorts at the time of hire and that they alt receive all subsequent memoranda or directives. There is nothing to suggest that the grievor had any greater or different know]edge or information about the escort policy than Ms. Lyons or any other less senior officer. Also, there is no evidence suggesting that the grievor, because of his greater experience bore any leadership role or other additional responsibility .... Reply Argument on Behalf of the Employer Mr. Benedict made the following submissions by way of reply: 1. It was submitted that the Union's reliance on an argument that the Grievor had no basis for knowing whether Michas was on high or low risk suicide watch had nothing to do with the issues of whether Michas should have been strip searchedf whether the cell should have been cleaned or whether Michas should have been left with matches. The high/low distinction was said to only affect certain other matters relating to the treatment of an inmate'in Segregation. It was argued,in any event, that in the absence of any indication as to the designation of Michas, C.O. Se]kirk should have satisfied himself about the risk level assigned to Michas. 201 2. We were urged to accept the evidence of Sgt. Swain that inmates in Segregation were placedin baby dolls 95 per cent of the time. 3. We were asked to find that the Standing Orders were clear in requiring an inmate on suicide watch to be placed in security clothing. We were asked to note that in this case a supervisor (Sgt. Swain) was disciplined for improper supervision and that he admitted that an inmate on a Segregation suicide watch should be placed in baby do]Is. 4. In relation to the' submissions made on behalf of the Grievor that he believed that Michas was a new admission coming directly from A&D, we were reminded of the two statements made by C.O. Selkirk to Inspector Ryan, in which there was no reference to the Grievor having such a belief. 5. With respect to the argument based on the Grievor having been disciplined in a discriminatory manner, it was submitted that no one else was responsible for the Segregation area at the time that the Grievor breached the Standing Orders. When Michas was admitted to Segregation, no one else but the Grievor was responsible for placing him in a Segregation cell, performing a strip search, cleaning the cell and placing him in a security gown. 202 6. It was submitted that there was insufficient evidence to s~w that Mr. Morris had imposed discipline in a discriminatory fashion. We were asked to accept as reasonable Mr. Morris' explanation for not disciplining anyone other than the Grievor and Sgt. Swain. Nurse Moccia's excuse that when he arrived in Segregation he believed that Michas had just been returned to the area and would be changed shortly into security clothes was said to be reasonable. Mr. Morris accepted the explanation even though it was Moccia's responsibility to report the violation. 7. In the case of Nurse Bilboe and C.O. Harbutt, Mr. Morris behaved reasonably in accepting their explanations that they had seen Michas covered to the neck by a security blanket and could not tell whether he w~s dressed in appropriate clothing. 8. We were asked to accept Mr. Morris' explanation for not disciplining C.O.'s Mclean and Meinert because they were relatively inexperienced, unclassified C.O.'s. We were asked to accept Mr. Morris' 'evidence that he had responded to entreaties made by the Union representative that the two correctional officers being inexperienced, it was unreasonable to expect them to have followed the Standing Orders. 'The Union was accused of "speaking out of both sides of its mouth." 9. In the case of Ricker, Mr. Morris indicated that he had, perhaps, made an error in failing to discipline Ricker. Mr. 203 Benedict added that Mr. Ricker was not familiar with ~he Segregation area and had not worked there very often and was not experienced in dealing with inmates there. 10. In the case of C.O. Entwisle, it was submitted that he would not have handed the matches to Michas if he had not been dressed in blues. Entwisle had not realized that Michas was on a suicide watch and there was no evidence that anyone had told him that this was the case. 11. Management was said to have made an "honest attempt" to administer discipline in the circumstances, and it had behaved "honestly and rationally" in carrying out its responsibilities, and it should not have been expected to go on a "witch hunt." 12. Mr. Benedict once again referred to the Bisson case, where, at p. 2, reference was made to the fact that the union had asked the board to consider the fact that "other people.., also failed to perform their duties properly and were not disciplined." The board noted, at p. 3, that this "item" caused it "the most concern." "There were a number of other people on duty that day who did not properly perform their duties and if they had, the inmate may not have died." Mr. Benedict also referred'-%o, the statements of the board at pp. 4-5: There is no doubt that the offence committed by the grievor is a serious one, in fact the duty to do a proper count lies at the heart of a C.O. duties. It is not a mere administrative matter as it directly affects the 204 health and wellbeing of the inmates, the staff and, -in the case of an undiscovered escape, the public. Furthermore, the past discipline record of the grievor and the culminating event show a serious attitude problem of the grievor's in that he seems to have forgotten how important these matters of accurate counts and attentiveness are to a C.O. job. On the other hand, the act of the grievor was not intended to do harm, he was simply careless. We know he is capable of doing better, as his previous nine year record shows. Although in the past he received a two day suspension for an offence, he was allowed to put in extra overtime to make up his loss. This was done with the Superintendent's knowledge. This act of generosity unfortunately takes away whatever value the suspension was supposed to have. The offending employee is supposed to suffer an economic loss for his misdeeds. In Mr. Bisson's case he simply got two days off and earned back his loss at a later time. This is hardly the sort of thing that would impress upon Mr. Bisson the error of his ways. Mr. Bisson obviously needs something more than a short suspension to bring home to him the serious and quite possible life-threatening consequences of his actions, however, having considered all the relevant factor-s, a discharge is too severe. 13. in the case before us it was submitted that the Union had failed to adequately put to Mr. Morris all of the evidence relating to the alleged violations by the other employees and that without this having bee~.done the Board should not give too much weight to the allegations relating to the discriminatory imposition of discipline. Discussion This matter was of the greatest importance to the Employer and the Union, and rightly so. The Employer is entitled to establish 2O5 rigorous and detailed rules governing the way in which inmates are dealt with in the institution. The Union, for its part, has a justified concern for safety related matters as they may affect inmates, staff and the public. We accept the reasons that were presented to us as to why the Centre must be run along quasi- military lines. The danger to correctional officers, other staff, inmates and the general public is all too evident if rules that are made'~or the purpose of protecting persons and property are not followed. This Board should not be too quick to impose its views of how a maximum security detentio~'~entre ought to be run. After having reviewed the lengthy evidence and argument it is possible to arrive at certain conclusions. 1. Ail of the persons who testified did so in good faith, and we do not believe that anyone tried to mislead us, although there were some differences between the witnesses with respect to the material facts. 2. Having reviewed all of the evidence, it is apparent that there is a great deal of tension involved in working at the Centre. Inmates are frequently uncooperative and dangerous, and correctional officers often have to work with a full capacity of inmates and are still expected to carry out their obligations with a high degree of professioalism. 206 3. The Standing Orders relating to management of suicidal inmates are n~t free fom a certain amount ofconfusion. In these circumstances it would be expected that correctional officers, who it was acknowledged are required to be familiar with the Orders, would ask for clarification from supervision. 4. For reasons which were not explained, certain practices were permitted to develop and were accepted by a significant number of front line management personnel whose testimony indicated that such practices arguably did not conform with the strict requirements of the Standing Orders. Departures from the Standing Orders, based on the practices that had grown up, should have been known to management because of the requirement that supervision review such documentation. The evidence of Lt. Hardwick and Sgt. Swain satisfies us that they, and v~'~y' likely Lt. Micucci (who did not testify) did not discourage correctional officers from conducting themselves in accordance with developed practice. 5. Notwithstanding Lt. Hardwick's evidence, we conclude that it was anything but clear which inmates on a suicide watch should be dressed in baby dolls. Lt. Hardwick acknowledged the development of certain practices, as did Sgt. Swain. From the evidence of the correctional officers, we are satisfied that management tolerated other than the expected ten to 15 minute suicide watch rounds. There was also evidence to indicate that management, as well, had 207 departed from the Standing Orders in failing to make tours of Segregation when required. 6. We were informed that there were occasions when correctional officers had to prioritize their responsibilities because of time constraints and did not comply with the Standing Orders. Over time, there were developed certain adaptations, which appear to have been accepted by their supervisors. There was no evidence that any correctional officer had been disciplined or advised that they should not follow a practice. 7. Submissions were made on behalf of the Grievor, who, by ali. accounts had a good record prior to the time of the incidents for which he was disciplined, that the evidence had disclosed that he had not violated any Standing Order, and if he had, that other employees had. also violated Orders without being disciplined or, in most cases, informed that they had done wrong, and that certain violations should not be treated as such because of the practices that had developed, as referred to in the evidence. To deny the grievance in these circumstances would, it was submitted, allow for the scapegoating of the Grievor. 8. Although we find the Standing Orders to be somewhat unclear, especially in relation to the designation of who is a high or low risk suicidal inmate, we still conclude that there were certain minimum standards that the Grievor had to comply with in taking on 208 the responsibility for a suicidal inmate, and we also find that ~he Grievor was remiss in a number of areas. 9. The Grievor should not have assumed that Michas was a new arrival.coming directly to Segregation from A&D and had therefore been Strip searched a short time previously. It was incumbent upon him to make reasonable inquiries, given the potential for harm if shortcuts were taken in processing an inmate. 10. In the circumstances, the frisk search that C.O. Selkirk sai~] he con~]ucted, would, at best, have been warranted only if he had obtained assurance that Michas had recently been strip searched~. 11. C.O. Selki~k should also have been more vigilant so as to ensure that C.O. Ricker remained with him when Michas was placed in cell #9 in Segregation. 12. The description of the numerous items that were found in Michas'cell, but should not have been there, satisfies us that they represented an unwarranted potential danger, and there was an insufficient explanation as to why C.O. Selkirk did not see to it that they were removed, even if he had to do,so himself. From the evidence, much more material was found in the cell than would have been permitted by the Standing Orders, even as the list was varied by management personnel such as Lt. Hardwick. 209 13. In favour of C.C. Selkirk was the fact that even if he was remiss in permitting Michas to remain in blues, so were the officers and managers listed above. 14. Also, any correctional officer who was required to be in the area of the Segregation cells at the material times should have been aware of the unacceptable level of detritus in Miehas' ceil. In additicn, managers who made tours of Segregation, should have been aware of the unacceptable level and nature of the material in the cell, and seen to it that it was removed. Those managers who did not perform tours of Segregation when required to do so were also in violation of the Standing Orders. If they had done so, they might have been able to thwart Mishas' suicide attempt. 15. In the cases of C.O.'s McLean and Meinert, while there might be some expectation that their relative lack of experience_ could explain inadequacies in their handling of some situations, such as a riot, we do not accept that their relative lack of experience could excuse their failure to follow Standing Orders. They were expected to know the Standing Orders and to act according to them. If they were unsure about what to do in dealing with an inmate on a suicide watch, they were requiired to ask for clarification from management. In the circumstances, the reason given by Mr. Morris for treating them in a different way from the Grievor is not reasonable. 210 16. On the evidence presented, we conclude that Lt. McCucci, Lt. Hardwick and Sgt. Swain, either by example or by tolerating practices that conflicted with the Standing Orders, permitted correctional officers to conclude that they were properly carrying out their functions in.relation to inmates on a. suicide watch. 17. If Mr. Morris would exculpate C.O. Entwisle because he did not know the status of Michas when he furnished him with a packet of matches, then the Grievor's explanation for initially being unaware the Michas was a suicidal inmate should have been acceptable. 18. There were a number of instances, as above noted, where breaches of the standing Orders by a number of managers and officers were put to Mr. Morris. He was a frank and honest witness, and on a number of occasions made it clear that his focus was on the G~ievor's actions. When possible breaches committed by others were brought to his attention, he explained that his failure to act was in part a result of the fact that his attention was then focussed on the actions of the Grievor, who was said %o have had primary responsibility for Michas at the time he was brought to Se'gregation. Although we have no hesitancy in concluding that Mr. Morris behaved with utmost good faith, the focus of his investigation was unduly narrow. In overlooking the interrelation of the actions of the Grievor and of the other correctional officers, nurses and managers who were involved or should have been 211 involved with Michas, the Grievor's role was given undue prominence. 19. Even though the breaches attributed to the Grievor were linked by the Employer to specific Standing Orders, he was also aware of which of his actions were relied upon as a. basis for imposing discipline quite apart from such linkage. 20. In all of the circumstances, we find that the Grievor was negligent in the following ways: a) He failed to conduct a strip search when Michas was admitted to Segregation on September 5, 1991. He should not have acted on his incorrect assumption that Michas was a new admission from A&D and had come immediately from there. Quite apart from the Standing Orders, common sense dictated, in the absence of better information, which he could have easily obtained, he should have carried out a strip search whether or not the Standing Order required it. We also conclude that a strip search was also necessary under the Standing Orders, and there was nothing unclear about this requirement. b) That the Grievor was negligent in failing to see that cell #9 was cleaned of the variety of paper items, some of which were apparently left by the previous inmate. 212 c) The Grievor was negligent, based on his own evidence, -in failing to ensure that officer Ricker accompanied him and Michas to ceI 1 #9. 21. The incidents of negligence on the part of the correctional officers and management, and at least one nurse, as above recorded, must be taken into consideration in assessing the appropriateness of the penalty imposed on the Grievor. Their inappropriate actfcns were, innocently we find, either overlooked or somewhat hastily considered. There were many significant examples where other officers, some management personnel, and at least one nurse, would, if they had behaved correctly, been in a position to possibly prevent the tragedy that occurred. Certain incidents stand out: furnishing Michas with matches, failure to inspect him at the beginning of a shift to ensure that the various requirements pertaining to suicidal inmates had been met; failing to conduct tours that would have indicated that something was amiss, failure to conduct tours on time, failing to report that he was wearing blues. These were all contributing factors, in the same way as the Grievor's behaviour represented a contributing factor to Michas' being in a position to set himself on fire. 22. In all of the circumstances, however, the Grievor was more culpable. It was he who was in.charge of Michas when the latter was admitted to the Segregation unit on September 5, 1991. Whatever the shortcomings in the behaviour of the other persons 213 whose actions can be seen to be negligent, it was C.O. Selkirk who had the primary responsibility for dealing with Michas when the latter was sent to Segregation. It was he who had the primary responsibility for conducting a search for "contraband," cleaning out the cell or seeing that it was cleaned out, placing Michas in the cell, maintaining the suicide watch, and taking necessary steps to see that Michas did not do harm to himself or others. The fact that others could have reported the ~eparture from reasonable practice does not relieve C.O. .Selkirk of his primary responsibilities. 23. We must, however, assess the penalty imposed in the light of the many major and minor negligent acts committed by a very large number of managers, corrections officers and at least one nurse who were not disciplined, and, in almost all csses r not even spoken to. The fact that Sergeant Swain was given a ten day suspension as well does not overcome the failure of the Employer to adequately address the negligence of so many other employees. 24. If the necessary even-handedness in imposing discipline had been carried out, we would have refused to interfere with the penalty imposed. In the absence of such even-handedness, fairness requires that the penalty must be reduced. 25. We also take into consideration the lack of clarity or direction in identifying suicidal inmates as either high or low 214 risk. We believe that this confusion was accepted by the Employer and it was a primary factor in leading to the change in the Standing Orders. We also have taken into consideration the fact that certain practices, not found in the Standing Orders, appear to have been tolerated by supervision. Where a practice is tolerated, it can have the effect of clearing up apparent confusion in the Standing Orders. 2~' HaOi'~g considered all of the factors that resonably bear on the imposition of the penalty, as well as its appropriateness, we conclude that the ten day suspension should be reduced to one of femur days, with the Grievor being reimbursed...~or any loss suffered as a result of the additional six days of suspension without pay. 27. We retain jurisdiction in the event that the parties are unable to agr.~e as to the amount to be repaid to the Grievor or any other aspect of the relief ordered. Dated at Toronto this 17th day of November, 1994. .~/~. M.R. Gorsky - Vice Chairperson F. Collict - Member